Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-01-22
THE HIGHER COURTS.
synopses Of Decisions Rendered at the Present
Galveston Sitting Of the Court
of Appeals

Peace vs.. the State; appeal from Dewitt
county. Appellant was indicted and tried
and found guilty in the lower court for
the murder of one Stonebreaker, and the
penalty fixed at imprisonment for life in
the penitentiary. Defendants motion
for continuance was overruled and ex-
ception reserved. Held: There was no
error in the ruling of the court. A gem
eral rule well established is that
bin Of exceptions taken gen.
orally 10 the charge OF the court
specifying no particular error or
errors, has no standing, and will not be
considered by this court In the absence
of proper bill of exceptions, this court
will examine the charge of the trial court
only with regard to fundamental errors,
or such as, under all the circumstances
of the case, were calculated 10 injure the
rights of the accused. I22 CT. App,
/ BIC. The testimony though circum-
stantial, establishes sufficiently motive,
| threats, preparation and proximity to
the scene of the homicide on the part of
this appellant. Affirmed. Opinion By
White, Judge.
j. o. Rigley vs.. the State appeal from
| Goliah county. Appellant was convict
ed of an Offense against article ESQ of the
penal code, which inhibits an officer Of
any county, city or town in this state
| from becoming in any manner interested
| pecuniarily IN n contract with such
county, city or town. Appellant being
| county commissioner of Goliad county,
sold to said county two mules, receiving
for them 5000 Held Manifestly, the
! legislative intent was TO protect against
| official populations, TO prevent officiat
''rings being formed, and TO prevent
| the officers Of such corporations from
using their official knowledge and
! influence to their individual
| pecuuiary advantage in the financial
| transactions of such corporations In the
| construction Of the statute the legislative
| intent must govern even over the liberal
| import of words, and without regard to
| grammatical rules. Wilson Or. Stat,
sections II and 20 There is no reason
| why a county officer should be permitted
TO sell u mule and yet be denied the priv
ilege of making wagon for considera-
| ton for the county. ''To make and
sell and ''to sell'' are the same in the
spirit of the statute. Judgment af-
frmed. Opinion by Wilson, Judge.
Bud Reveal VS.. the State; appeal from
Milan county. This is prosecution for
horse stealing in which defendant was
convicted. Defendant had purchased a
horse at race and when questioned
about it made conflicting statements,
some of which were untrue. Held: That
statements casually made by defendant
when he did not know ne was suspected
of the theft of the horse and without his
right to said horse being called in ques-
ton are not sufficient evidence TO convict,
having been made under such circum-
stances that they cannot be regarded as
entitled to much consideration Their
criminative force is too weak to over
come the presumption of innocence when
that presumption is supported by positive
evidence. Reversed and remanded,
Wilson, Judge.
Cornelius Koran vs.. Taylor, Bastrop
and Houston railway company: Fayette
county. This suit was brought by APP
pellant to recover damages for injuries
which resulted in the death of mule
occasioned by the mules attempting TO
cross over a cattle guard placed by the
railroad company where its right of way
entered the field or enclosure of one De-
cember, and which cattle guard was
alleged TO be both neglegentlv AMI de-
fectiyely constructed. The evidence
shows that the mule was running out
with several horses belonging TO de-
PENDANT, that the horses walked over the
guard their hOOfs being broad enough to
prevent them from falling through, that
the mule g hoof passed through the space
and its leg was broken. Defendants
answer alleged that the cattle
guard was constructed in the or
binary way and was in good repair.
Held, That the customary way OF COM
structing such guards is no conclusive
criterion of diligence. 1t is also held
that the duty of the railroad company to
maintain ca tie guards, Is enjoined By
the statutes, whilst mainly for the pro-
lection of the proprietor of the enclosure,
is also in the nature of a police regnla-
ton for the benefit of the general pub
lie, just as is the statutory obligations TO
fence the right-of-way, ana to give ef-
feet to that object it should be so con-
strued and made to extend to all parties
who, though not interested in the inclos-
ure, have had stock injured by the fall
ure to perform duty. The principle that
a man must use his own property so as not
injure another 8 here prevails. The fact
that road bridge has been in conformity
with the views of public officers does
not make the company less liable
for damages on account of its defective
construction or nOn-repair. RI Thomp.
Neg. D. SAL The stock guard should
be 50 made that under ordinary circum-
stances an animal would not attempt to
cross over it. The charge Of the court
DelOW 1nStructlng the jury InaE the de-
PENDANT would not be liable if it con-
strueted the guard in the customary way,
held error. It should have required such
care in the construction as an ordinarily
prudent man would take with reference
to the safety of his own stock Reversed
and remanded. White, p. J. ca very
case throughout Texas, es-
pecially because OF a new point here de-
cided which was of first impression
Mason Miller VS.. the State; appeal from
The appellant was convicted Of
murder of the second degree for killing =
John Collier. This Judgment was
affirmed at the Austin term without
written opinion. q ) The deceased made
a statement after he was shot, andkaid,
81 am bound to die. - The statement
was properly admitted as dying deelas
ration q J The charge was excepted to,
but was sustained as being the correct
language Of the statute. o. There
was no fact in the record
20 show that reasonable ex-
Dectation or fear of death or some
serious bodily injury" or presenting the
ssue of defense, therefore the court