Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-13
THE HIGHER COURTS.
synopses of Decisions Rendered at the Present
Austin Sitting.

Austin Sitting.
Correspondence of the Gazette.
AUSTIN, Tex, June DC. W. Brazzill vs. the
State, from Coryen county; opinion by White,
P. J. This is appeal from conviction of
murder. From q review of the facts the court
concludes there were two separate and distinct
rencounters between defendant and deceased,
Defendant abandoned the first difficulty. even
though it may be conceded that he provoked and
brought it on with deadly purpose. Defend
ant was shot in the breast, disarms his antag-
onist, and when his antagonist fees he pursues
him pistol in hand, but short distance, and
. then returns, saying that he cannot shoot man
in the back Bis antagonist has gone across the
street into another store for safety in search
OF another weapon. Without giving this pur-
pose any thought, defendant is intent on exam
ing and talking about his own wound. After the
lapse of several minutes deceased is seen re-
turning rapidly, and before defendant is notified
of his approach. Deceased is approaching
in an angry threatening manner, al
most in a run. These are the facts leading up
TO the fatal shot. Whilst 1t is a general rule
that a conflict provoked by a defendant canndts
be set up by him a defence, vet it is q ruSZ-
equally as well settled that though the deiendEFes
may have thus provoked the conflict, yet. iEbe
withdraws from it in good faith and clearly an
nounces his desire for peace, then if he be R9T-
sued. his rights of self-defence revive, Appfz5-
ing this rule 10 the facts, SO far as defendant
was concerned when deceased went to the otheS
store the first difficulty was ended, and this diff
IL
show the malice actuating the parties to the
second. The trial judge treated the case as apei
co9tfnuing combat, and told the jury that IA.
iclS1Rnt could not claim the right of self-deSl
SfAAce. The question Of provoking the difficulty
tsHSuld have been limited to the second fight.
Reversed and remanded.
Alb. Graham VS. the state FROM CoryeH couIity:
opinion by White, P. ]. The objections TOME
charges of the court cannot be considered be-
cause they were not excepted TO below and no
special charges were refused and the errors
complained of were not fundamental One of
the grounds of g motion for new trial was that
one OF the jurors was corrupt, biased and preju-
sdiced, which was unknown to defendant until
after conviction. Affidavits were filed TO SUBJ
stantiate this charge. To refute it an attach
ment for said juror was Issued. but he was not
produced, so far as our record shows and from
the record it appears that there is such a sus-
picion against the fairness OF the trial as to en-
title defendant to q new trial. ~ Tex 52SssI 4
Tex. 57s; 10 App. Isl; Is app. 81 Reversed ends
Temanded.
S. L. Anderson ct al VS.. Cleburne Buildiss
and Loan Association, from johnson coun{SS
opinion by White, P. j. Suit by appellantaEa
note, to which appellees pleaded, amone5E6er
things, that plaintiff, private corporation
under the laws OF Texas, by its charter could not
loan money to any person but its members, nor
at more than Il per cent, ETC., and thai the
note was in violation of the charter executed for
money loaned at discount, the defendants
agreed with plaintiff on the amount. per cent.
were added per month ana = note was given for
the whole amount bearing u per cent. after
maturity and defendant received the face value
less the per cent. per month An exception TO
this plea was overruled. This was error Atter,
review OF the authorities the conclusion is aas7l
rived at that under our constitution and ltlts.
this plea presented 3 defense deseattng plain-
tits right Of recovery Reversed and re-
mEnded.
!. VIM. Caldwe Il VS. the State, on motion for re-
hearing; opinion by Hurt, J. The sGfhciency
of the Indictment is the only ground urged for a
reheafing. In the charging part the indictment
reads that said Caldwell did on or about August
]. 1855. with force and arms in=the county OF !