Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-05

I ton county. Defendant was convicted Of
an aggravated assault upon his vile. The
/ evidence was that he was whipping his
( step-daughter. ana that the wife as
/ Saulted him while so engaged ana he re-
/ PEELED the attack. Held: That though
! there is no cnivalrv in the act. yet ut law
/ a husband has the right to defend him
/ self even against attacks of his wife, and
unless greater force is used than is Geces-
/ sary to repel the violence, he would not
! be guilty of an assault or battery Re-
/ versed and remanded. Opinion by
! Hurt, J
/ New York, Texas and Mexican railway
/ company vs.. John and F Green; from
Victoria county. Appelles sued 10 re-
/ cover damages for failure to deliver a
carload of thirty cattle shipped over ap-
/ pellant 5 road The appeIleeS accepted
and loaded the car themselves and
agreed TO look after the stock and feed
them III transit. The company did not
even know the number of cattle stripped
and the bin of Ia ling only receipts for
the car. 1t arrived at AlgierS. La, its
destination, ana was receipted Tor by the
agent of the conSignees, who unl6Ided
the car. The cattle ere sold and ac-
count sales returned, when it WAS dis
covered that the cattle sold were OF an
inferior grade To those shipped Appel
lees claim that the stock 50 sold
were not the ones they shipped
but were an inferior lot, which by some
means had been substituted for theirs, as
they claimed, en- route. The court re-
vieN ed the evidence from which it ap-
peared, among other things, that the
agent of the conSignees had made wrong
deliveries of other cattle received on the
same day, and a il did not appear that
the agents of the railroad ever ut auy
time handled or controlled the stock il is
concluded that the mistake in trans
ferring the cattle occurred after the de-
livery TO said agent ct Algiers, and there
is no evidence to support the Judgment
which is reversed and the cause remand
ed. Opinion by White, p. j.
NJ. A Trice, guardian, VS. Monroe
Miller ct al; appeal from Travis Suit
for the value Of trunk and contents.
Appellant 5 ward had q railroad check
for the trunk which she delivered to Mil
Ter s agent, Miller being a carrier of bag
gage, rs the train on which she was trav-
cling came into Austin THE agent gave
her a receipt or check in lieu of the rail-
road check and defendant Miller claimed
TO have delivered the baggage at the
Driskill house Austin TO those in charge,
that being the place to which the owner
W shed the trunk taken. The trunk was
lost and not received by the owner, and
Miller check was never surrendered by
the plaintiff. Miller attempted to prove
that he delivered the trunk in the usual
and customary manner al the
hotel. The court hold: 1t is a general
rule that the delivery of goods by a car
rier must be made 20 the right person, at
a seasonable time, at the proper place
and in proper manner. In this instance
the proper delivery would have been to
the owner in person or any party holding
the transfer check for her Custom and
usage cannot limit the liability of car
rier. Citing 2 App. c. c., IS % 800;
- Railway Company VS.. Adams, 40
Tex, 74S. Reversed and rendered for
appellant. White, p J.
Clabe Ellis VS.. the State; from Hous-
ton county. Conviction of theft of hog
of the value of Sc. The verdict assessed
a fine of So, but omitted to impose i'm
as the law requires. They
were discharged by the court and dis
persed. Afterwards the fatal defect in
the verdict was discovered and the jury
were sent for and directed TO find another
verdict that would conform to the above
requirement of the law They did so,
imposing on defendant a fine of 81 80 and
one day in jail. Held: That verdict
can not be thus changed or corrected
after the jury had separated, left the
courthouse and had opportunity to con-
verse with outsiders about the case. G..
G. P, Art. rs, IS not applicable The
evidence is also insufficient TO support
the verdict. Reversed and remanded
White, p j.
Alex. Anderson and Joe Woods vs..
The State; from Polk county. This ap-
peal is from a conviction of negligent
homicide in the first degree. One Du-
,Oign was not permitted to testify for de-
it appearing that he was in
iicted for the same offense, but under a
lifferent name Held correct. Appel
ants were brakemen, riding from one
point to another on an engine and ten
Ter, which going backwards ran over and
killed 4 child. The evidence failed to
how that they were in charge or MANAGE
nent of the engine, or had any duty TO
perform in its operation or in keeping a
ookOut. They might have seen the
hid in time to save its life.
'ut were not watching and did not
zee it. 1t was the duty
# the engineer and fireman to run the
ngine and look out for u clear track.
We're the omissions of the trackmen to
ee the Danger, or TO give signal Of il
o those in charge of the engine, crirni-
al within the meaning of our statute?
Held; they were not. Omissions are
ot the basis of penal action, unless they
onstitute defect in the discharge Of
with which the defendant
specially invested. Reversed and re-
handed. Wilson, J.
Ex-parte John Puryear; appeal from
Iunt county The appellant was
haTged by Indictment with the murder
f an infant child. The court below re-
used bail. This court sets aside the
rider and admits the applicant to bail in
he sum Of $1,000. The facts aIe not dis
used. Hurt, j.
John ". Gowan VS.. the State; appeal
rom Walker county. Conviction for
left of hogs. The evidence leaves the
sue as TO whether the hogs belonged to
ne Dickie or the defendant quite evenly
alancedL The proof fails to show fraud
lent intent, but that the defendant be-
ewing himself the owner of the hogs so
'oI them. Reversed and remanded
Hft, Judge.