Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-01-19

such information be introduced in ev1-
dence, but the complaint upon which it is
based or founded must also be introduced
The statute says expressly that 'fin trials
| for perjury no person shall be convicted
| except upon the testimony of two credible
witnesses, or of one credible witness cor
roborated strongly by other evidence as
30 the falsity of the defendants state
ments under oath, or upon his own con-
fession in open court - Where the ac-
cused has not confessed his guilt in open
court, the charge should distinctly set
forth the above law as applicable to the
case, whether asked or not - 1t is
fundamental error to refuse such instrnc-
tons. Reversed and remanded. Opinion
by White, P j
William Smith VS. the State; appeal
from Fayette county. Perjury This is
companion case to Albert Wilson VS.
the State, above described. But in this
case the complaint upon which the infor-
nation was based, was introduced in
evidence and the court substantially
complied with the provisions in Art. 746 !,
@. G.. P, relative to the testimony es-
sential to a conviction. Defendant s
motion to quash the Indictment was pro-
submitted the law of the case in regard
to the matters complained of, especially
in the absence of exceptions to any par
ticular portion and, III fact, was not de-
fective in its entirety, having presented
the case lawfully, clearly and without
prejudice to defendant As
to the special instructions re-
fused by the court those which
were legal have already been substan-
TALLY given and covered by the general
charge. The materiality of the false
statement assigned as perjury is a ques-
ton for the court to determine, and
should not have been submitted to the
jury
There was no error III refusing them.
Affirmed. Opinion by White, p. j.
j p Campbell VS.. E. B Wallace; ap-
peal from Washington county. Appellee,
as surviving partner of the mercantile
firm of J F.. H. s. E. B. Wallace, brought
suit against appellant to recover S799 70
alleged to be due said firm by appellant,
and recovered Judgment for said amount
and costs. Neither the heirs nor personal
representatives OF J. H. Wallace, de-
ceased, were made partners to the suit
Appellant offered to testify to the pay
ment of $500 of SAID Indebtedness to J H
Wallace. The objection was overruled
on the ground that it came within the
meaning Of Art. 2248 r. s. Held:
Error, Forty-one Tex. 449, holds that
said article does not disqualify party
from testifying to declarations made by
a deceased partner in a suit against firm
in which the representatives of such
deceased was not party. The amend
ment of the statute provides that it shall
''extend to and include all actions by or
against the heirs or legal representatives
of a decedent arising out of any transac-
ton with such decedent - The words
illegal representatives mean the execu-
tor or administrator, or sometimes the
heirs of next of kin, or even the devisees
or legatees of the decedent. It does not
embrace partners. The court should not
reject such evidence which our supreme
court has held to be competent. Re-
versed and remanded. Opinion by Will
son, j.
Is. F. Blocker VS.. the State; appeal
from Bowie. Murder Motion for re-
hearing. This appeal is from convic-
ton of murder in the first degree, the
penalty assessed being confinement for
life in the penitentiary. In the charge
the court failed to define and submit the
issue of murder in the second degree.5 In
this case there is no evidence of express
malice. 1t was not shown that the de-
PENDANT entertained any grudge or en-
nifty against the deceased, nor does the
evidence disclose any motive actuating
the defendant to commit homicide. The
only evidence of express malice consists
in the character of the weapons used, the
manner of their use, that defendant was
accompanied with another having a gun,
that they followed deceased to the
place of homicide, and after the killing
precipitately fed from the scene. That
the evidence sufficiently establishes eX-
press malice we do not question or doubt,
but there may be evidence from which
jury might legitimately conclude and
find that the homicide was upon implied
and not upon express malice. No wit
ness saw or heard what transpired at the
very time of the killing Deceased was
armed with a pistol, partially empty.
Held: If the jury shall find any person
guilty of murder they shall
also find their verdict whether
it is of the first or
second degree; and if any one shall plead
guilty to an Indictment for murder jury
shall be summoned to find of what de-
gree of murder he is guilty. The charge
should also have covered murderfn the
second degree. Rehearing granted,
Judgment of previous afirmance re-
versed. Judgment reversed and re-
Opinion by Wilson, j.