Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-10-20
COURT OF APPEALS.
synopses Of Decisions Rendered ct the Presen,
Tyler sitting.
Correspondence Of the Gazette.

synopses Of Decisions Rendered at the Presen.
Tyler sitting.
Correspondence OF the Gazette
Tyler, Tex, Oct. Is.-Juan Costello vs.. the
State; from Cameron. Conviction for kidnapp-
ing. /. If the person kidnapped be 8 female
under sge of fifteen years, it is not necessary
that force should be used upon her in order to
constitute the otfense. 2. But here is no pro-
vision dispensing with the non-consent of the
female whatever her age NAV be. as there is in
the statute relating TO abduction. 3. Because
fourteen years of age. willingly accompanied
appellant. the evidence does not support the
Ve-dict. Reve, sed and reminded. Wilson, j.
Eugenio Olivorez VS.. the state; from Cameron
Conviction for kidnapping. l. This is com
panlon case to Costello rs. State. this day de-
clded, and for the rea sons therein set out the
case is reversed and remanded. Wilson, J.
Frank T. Bates VS.. State; from Harris. Ha-
bess corpus. RelatNr stands charged with the
murder of A. E: Frazier, and this appeal is
from decision of the court below refusing him
bail !. We have ma;urely considered the evil
dence as presented in the -ecord in connection
with the able argument of counsel, and our con-
clusion is that upon the facts relator is entitled
to bail. 1t is not the practice in this court in
granting bail to discuss the facts of the case.
The judgment refusing bail is reversed. and
qpon his entering into bond in the sum of
5000. with good and sufi cient securities to be
approved BY the sheriff of Harris county, the
,aid sh.rf will release relator from custody.
V. s. Abitz vs. State; from Harrison. Hs-
beas corpus. l. Appellant stands charged with
the refu al of the court below to grant him bail
was error. 2. Statements of appellant made 10
c. V. Fraley two or three minutes after the
homicide. and relating TO the homicide, are res
ments made TO another party several months
before the homicide are not admissible in his
behalf 4. Relator will be released from GUS
tody upon the execution OF a legal bond in the
penal sum of 900. Wilson, J.
Charles Ball VS.. the State; from Cooke. Con-
v1ction for manslaughter. l. The court erred in
refusing to admit in evidence two letters.
postal card and telegram written by the de-
ceased and sent 10 appellants sister and broth
KNOWLEDGE OF their contents before the homi-
eide. and that same contained threats against
appellant. 2. The court erred in permitting the
wife OF deceased to testify that deceased told
her when he left the house on the night of the
homicide that he going to the postoffice to
get his mail aud would be back in few min
utes. 3. Def ndant being on the public street
in front of his place of business, the court erred
IN charging the jury that if he went there to
provoke d!tticu ty with deceased. his right OF
self defense would be limited and that he would
be guilty OF manslaughter. 4. The court erred
In failing to instruct the jury that defendants
was not bound 10 retreat in order to avoid killSa
ing his assailant. Reversed and Iemanded.
Wilson, j.
John Burnley VS.. the State, from Upshur; ag-
gravated assault and battery. l.. The testimony
ofthe absent witnesses was material and probably
true, and it was error to refuse continuance.
2. 1t was error to refuse new trial based on this
ground. 3. The absent testimony may have
Eeen cumulative, but this does not apply in
motion for first continuance. Reversed and
remanded. White, P. J.
". j. Bayne VS.. the State, from johnson:
conviction for theft of property $50 in
value. l. Though The charge may be inartistc
in construe ion, and some OF lis expression not
exactly good English, yet the law as given;
dence is amply sufficient to SUPP OFT the iudg
ment OF conviction. Affirmed. White, P. j.
Carl Duncan vs.. the S ate, from Montgomery;
conviction fer manslaueh er. l. The jury, IN
their verdict, find defendant seventeen years of
age, which finding is not warranted by the evil
dence. 2. Where defendant is shown to be
er the age of sixteen y. aTs, the court should
instruct the jury il they find him guilty to
his punishment at confinement in the reforma-
tory 3. The jury, and not the court, fixes the
place of punishment. and this finding must be in
their verdict. Reversed and remanded. White.
P. j. ny
Genaro Abrigo vs. the State; from Starr. Theft
of mule. |. The Indictment charged the de
PENDANT committed the crime on November 30,
1889. The evidence for the state shows that the
mule was stolen about the 18th or 10th of No
vember, 1889. and sold by defendant November
%, 1889. Defendant made application for
CONTINUANCE on the ground Of absent witnesses
ant on November 50, IS g. This was over
ruled. Held: In view of the testi-
mony on the trial the absent testimony was
immaterial and there was no error in overruling
tine application. 2. The law requirins
days service of an indictment before trial ap-
pies only 10 persons III CUSTODY ana not 10
tho on bond. 3. Qualified vote rs in this state,
notwithstanding they are of foreign birth and
shS4VH4S declared their intention or becoming
tkfzens of The Uni'ed States, and had not taken
Out their fEal naturalization papers, are quail
fed as jurors under our law. 4. The bill of sale
was admissible, for. while not signed by wit
nesses, IL was proven that defendant wrote and
delivered same. Affirmed. White, p j.
Jim Camp VS. the state; from Jones. Theft Of
cattle l. Evidence sufficient and charge full
and correct. 2. Motion for new trial properly
overru ed. Affirmed. Wilson, j.
Sabado Garcia VS.. The State; from Medina.
Conviction for burglary. /. 1t being shown
that appellant has escaped from custody pend
ing this appeal, same will be dismissed. Will
son, j.
Felix Tinsley vs.. the State: from ntgomery.
Murder in second degree. l.. The absence of
immaterial evidence is no ground for contin-
uance. 2. The charge of the court must be con-
strued as whole, and in this case when so con-
sidered is + nj and correct. 3. Special instruc-
tons. not the law of the case, were properly
refused. Affirmed. Wilson. J..sossxsssEsss
Saxet il tARsetae 6s66d purifier.