Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-03-22
COURT OF APPEALS.
SynOpses Of Decisions Rendered at the Present
Galveston Sitting.

Court of Appeals. P. White, P. j.; s. A.
Wilson, A. J.
Correspondence of the Gazette.
GALVESTON, TEX, March 2o.-John Ma
tula VS.. Edw. Fitzgerald; Lavaca county.
Reversed and remanded. White, P. j.
The defendant was not entitled to plead new de-
lenses in the county court, and plaintiffs ex-
ceptions to his new defenses should have been
sustained. II App. G. c., sec. 239; App. G. c.
sec. %, 442, 625. The cause should have been
tried de novo on the pleadings which the parties
had made in the Justices court.
Thomas Harrison Gulf, Colorado and Santa
versed and remanded. White, P. J. The rule
with regard to certiorari cases is that the de-
PENDANT has the right to plead or appeal any
matter of defense, though the same was not
pleaded in the justices court, except it be plea
of set off counterclaim; but the fact that this
rule is expressly provided in cases OF certiorari
and not in appeals, in our minds precludes the
idea that it was ever intended to apply in ordi-
nary appeals.
Pet Harris VS.. the State of Texas; Harris
county. Affirmed. White, P. j. The rule with
Us is that to constitute theft there must be q
fraudulent taking - and to constitute tax
ing it is not necessary that the property be
moved any distance from the place of taking; it
is sufficient that it has been in the possession of
the thief, though it may not be moved out of the
person deprived: nor is it necessary that any
definite length of time elapse between the taking
and the discovery thereof; if but moment
eIapse, the ofense is complete. p e., art. 726.l
The charge of the court presented the law cor
rectly, and the evidence is sufficient to support
the conviction.
TT Rhea vs. the State; Hunt county Re-
versed and remanded. Wilson, A. j. The de-
clarations OF the deceased were properly received
in evidence. They were voluntary, not made in
answer to interrogatories calculated to lead him
to make any particular statement, and were
made under a sense of impending death. There
is but one defect in the charge, and that is in sp
plying the law to the facts on the issue of self
defense. The special instructions should have
been given; they apply the law correctly and
pertinently to the evidence, and are not COM
ment upon it.
San Antonio and Arkansas Pass Railway Com
pany vs.. West Bailey; Austin county. Reversed
and dismissed. Wilson, A. j. The penalty
S25 per day for each failed to be furnished.
lSayles Civ, Stat, Art. 1927 q. $751; Under al
legations of appellee's petition, he could not
legally recover more than SIT, an amount not
within the Jurisdiction of the county court, and
appellants exception on the ground that the
county court had no jurisdiction should have
been sustained.
Affirmed. Wilson, A. j. 1t was irregular for
officer to change the names in a special
venire, but not such error SIS would entitle the
defendant to a new trial. 1t was permissible
for the sheriff under the direction of the court,
to amend the return of the special venire. 23
App, AZ; ID, 5O3l. We of opinion that the
rule stated in Stengafd vs.. the State, % App,
49, that where the record failed to show an
order for the issuance of the special venire it
will not be presumed that such an order was
made and eutered, is incorrect. Where the
record IS silent as to such order, where no OBJ
lection was taken in limine, that such order was
not made and q jury was empanneled under
special venire, it viii be presumed that such
order was made and entered, or waived by de-
PENDANT.
Tom johnson VS.. the State; Bell county. Re-
versed and remanded. Wilson, A. J.. This is a
case of circumstantial evidence. We do not
consider the evidence sufficiently certain. cogent
and conclusive to warrant the conviction, and
the cause is reversed and remanded.