Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-01-29
THE HIGHER COURTS.
Synopses of Decisions Rendered at the Present
Galveston Sitting of the Court
of Appeals
COURT OF APPEALS .

Hurt, Judges.
| Correspondence of the Gazette.
GALVESTON, TEX, Jan 26.-Gulf,
| Colorado and Santa Fe railway company
VS.. W. P. Dever; appeal from Washin-
ton. Stock was killed by appellant s
train. The defense was that the track,
| which at that point, was through pas
| ture, was legally fenced, except where
| the owner had required a private cross
| ing, at which there were cattle guards,
and had refused to have gates erected
| there, but placed bars there, which had
| been left down by said owner and the
animals thus passed out upon the track
| Appellee requested charges to the effect
that where railroad fenced its track it
is not liable for injuries to stock thereon,
if ordinary care was used, and that if the
jury believed that the crossing was so
built without gates at the request of the
owner and that the company maintained
proper cattle guards at the crossing that
they could not find for the plaintiff an
less there was proof OF negligence on the
part of the company. Held: The
charges should have been given and that
the evidence did not warrant n verdict
for plaintiff. Reversed and remanded
Wilson, Judge.
Frank johnson VS.. the State; appeal
from BraZos county. Aggravated assault
The wife of defendant was permitted to
testify against him in case where he
assaulted her daughter, who was his
step-daughter. Held: That she was not
a competent witness and that the objec-
ton to her testimony should have been
sustained. P. C.. art. 1856, Is ct. app.
271, IA ct. app. 20. The fact that the
wife had left her husband on the day of
the assault and did not intend TO live
with him again does not change the rule.
Reversed and remanded. White, presid-
ing justice.
Charles H. Franklin VS.. the State, ap-
peal from Leon county. In this case the
person claimed to have been assaulted
was an officer. He attempted to seize q
person engaged in fight with several as
Sailants, as he testified for the purpose of
arresting him, but it does not appear
from the evidence that the defendant
knew he was an officer or that the latter
so informed him. While so Selling de-
PENDANT the latter struck him with a
plank. Held: That the evidence does not
sustain the conviction. Reversed and
remanded. White, presiding justice.
C. H. Hughes VS.. the State; appeal
from Leon. The bills of exception to the
admission of the testimony as to res ges-
te and dying declarations do not disclose
the grounds of the objection, and hence
cannot be considered.
No exceptions were made to the charge
which, while not critically correct, was
yet free from material error or such as
would be likely to injure the rights of ap-
pellant. Affirmed. Wilson, judge.
a. Bruno VS.. r. Martin; appeal from
Webb. One of two joint makers of
note paid it and sued his co-maker, who
filed a special sworn plea of failure of
consideration and that he had signed it
upon the promise of plaintiff that another
named signer would be obtained, which
was not done Held: That as between
the joint makers the plea presented a
valid defense and exceptions to it were
improperly sustained Reversed and re-
manded. Wilson, Judge.
Bob Hines VS.. the State; appeal from
Marion. Conviction of murder of the
first degree with the death penalty. Held:
That the court erred in failing to charge
the law applicable TO the corroboration of
an accomplice The charge was re-
fused upon the ground that the witness
was not certainly shown TO be an accom-
-plee. As there were some facts tending
TO thus implicate him, though they were
strongly eontradieted, yet this was 4
question for the jury and not for the
court, and accused was entitled TO a
charge as TO the necessity of corrobora-
ton of IN assssszs EE,lliis.e' ; testimony Re