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

II
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| eeive a letter from defendant, enquiring
! about the commission of the crime, and
asking who was suspected of it., and if
defendant was accused The witness
said he had not received such letter. He
was then asked if he received such a let
ter purDorting to come from defendant
He answered no. He was next asked if
he mad not requested one Boulding TO
read such letter to him, He sand no.
Held: That this evidence should have
been excluded. If the object was to
prove that such letter was written and
received the witness should have had no.
tice to produce. If that was not com
piled with the state might then have
proved the fact by him, if fact, and if
the witness knew that defendant wrote IT.
Unless the letter had been lost or
mis- laid its contents could not he proven
by parol. If the object was to impeach
the witness, the only permissible inquiry
would have been whether he received q
letter from defendant, and he having an
swered in the negative, that would end
the matter. The state then called Bould-
ing, who was allowed TO testify, over OBJ
lection, that the former witness had re-
quested him to read a letter directed to
him, but that he did not know Jlefen-
dant's handwriting or who wrote it.
Until this is shown, defendant cannot be
held by any admissions in it The court
charged that penetration is necessary
TO complete the OfTense, but penetration
only is necessary to complete the Of
feuse - This was likely to instead.
There must be want of consent and the
use of force, threats or fraud. The fol-
Ion aJ,o ho16 = oh
stract, but calculated to mislead: at is
not sufficient to secure conviction for
the state to make out prima faeie case,
but the guilt Of defendant must be shown
beyond a reasonable doubt, and the fail
ure or inability of defendant to show his
innocence does not lend any additional
probative force to the discriminating facts
if any shown by the state or raise any
presumption OF guilt against the defend
ant The court in substance charged
that "'in case Of reasonable doubt the
jury must acquit and not resolve the
doubt by q mitigation of the punish
ment. - This language may have infiu-
enced the jury to infict the death penalty
instead of the milder punishment author
lied by the statute. Reversed and re-
handed. Opinion by White, presiding
Justice.
Railroad Company VS.. Caldwell; from
Hays county. Horses were shipped from
Texas to Illinois under contract of ship
ment, which contained the following
stipulation: ''The second party agrees,
for the consideration aforesaid, that in
case of total loss of any of his said stock
from any cause from which the said first
patty will be liable to pay for the same,
the actual cash value at the time and
place of shil ment, but in no case to ex- /
coed 500 per head, shall be taken and
deemed rs the full compensation there
for; and in case of injury or partial loss,
the amount of damages claimed shall not
exceed the same proportion. - In a suit
for damages to the stock the above was
held valid and contros the measure OF
damages, even when the damage results
from the negligence of the carrier. Fol-
lowing: Hart VS.. Railroad Company, 112
United States, 331, and other cases cited. /
Reversed and remanded. Opinion by
Wilson, judge.
Gabe Day vs. the State; from Freestone /
county. Upon the trial the defendant, /
who was convicted FOR betting at game 1
of dice known as craps, offered to prove /
an alibi. The testimony was excluded +
because the proposed witnesses were in /
separate bills indicted for betting at /.
craps, although the state did not show /
that the witnesses played at the same /
game at the same time with the defend
ant, or bet with him. This was held /
error, as the witnesses were not accom-
plices of the defendant; the transaction f.
must be the same, not merely similar 4
act. That the witnesses would have
eliminated themselves is for them to
urge, not the state. Reversed and re-
manded. Opinion by Hurt, judge.
James Hanson VS.. the State; appeal
from Kimball county Theft of a COW.
The only witness on the question of own
ership was an accomplice. Held: That
he should have been corroborated. r24
CT. App. 404. Reversed and remanded.
Opinion by Hurt, j.
Fanny ] Greenlaw VS.. Flippen ct ais;
from Dallas county. The court adheres
10 its former decision that the evidence
does not show that the money stood for
was the separate property of the wife,
but upon a reheaTing it is concluded that
the appellant was entitled to recover the
amount in the hands of appellee less the
credit claimed. 1t also appears probable
that the statement of facts does not cor
rectly present the evidence upon the issue
Of separate property. Reversed and re-
hi, - =