Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-07
THE HIGHER COURTS.
synOpses of Decisions Rendered at the Present
Austin Sitting.

SynOpses OF Decisions Rendered at the Present
Austin Sitting.
Correspondence of the Gazette.
AUSTIN. TEX, June 5.-Luke Garner VS.. the
State, from Llano county; opinion by White,
P. j. Defendant objected to the question pro
pounded to a witness: What age did the physi-
cal appearance of Wicks and Waits indicate
them to be in October, 1883? and the ans wer
thereto: That from the physical appearance he,
witness, would have taken them to be minors.
Held: Opinion, as far as it consists of state
ment Of an effect produced on the mind, be-
whenever a condition of things is such that it
cannot be reproduced and made palpable to the
jury. % App, 49,. The evidence sought was
the impression made upon the mind of witness,
and not upon others, and was admissible. The
charge, on reasonable doubt, is not quite
definite. but an additional charge should have
been requested besides the exception taken to
it. The special charge Of defendant was prop
erly refused, because not based upon an issue
on the cese. Affirmed.
Mollie Peoples vs.. the State, from Falls
county; opinion by White, P j.. This is con-
viction under Art. 2lS, P. c., for escaping from
her hirer during her term on account of cOnvic-
strict compliance with form l42, wilson's
Crime Forms, and is good under our decision in
Carter VS.. State regarding the meaning OF the
word escape; the evidence is not sufh-
Gent to warrant conviction in this case.
Reversed and remanded-Ned Carter VS.. the
State, from Falls county; opinion by White, P.
J. This is conviction under Art. 2l8, P. c.,
which provides that ''any person who has been
convicted of misdemeanor or petty offense and
afterwards hired under authority of law, who
shall escape from his employer or person hir-
ing him during the term of which he may have
been hired, will be punished by imprisonment
in the county Jail not exceeding two years.
with form 142, Wilson's Crime Forms.
Since this form was prepared the law regarding
the hiring of convicts was amended by act Of
March l, 1887. It is contended that this amend
ment created some new features, which render
the old form insufficient. We hold that the
amendment only contains defensive matters,
which, if averred will defeat the prosecution.
Nor is it necessary in terms to aver the escape to
have been against and without the consent of
defendant was hired to be kept and remain in
the county. The grounds for the motion in ar
rest of judgment were not well taken. But, the
appellant is charged with escape" Accord
ing to Webster this means to flee from, avoid
and become secure from danger. In law there
are several kinds Of escape, but the one contem-
plated by this statute takes place when the pris-
oner gets out of prison or any place in which he
may be confined, or from and out OF the author
gains his liberty freed from the authority and
control of the power entitled to restrain him.
The facts fail to show such an escape, Defend
ant was only refractory, for which he might
have been punished under article 1898 Revised
Statutes. Reversed and remanded.
John Rabb VS.. the State, from Llano county;
victed Jointly with Mrs. Nelson for keeping
disorderly house. The evidence only shows
that he hauled Mrs. Nelson from Burnet to
Llano, rented a house for her and put her into
it. A conviction on such meagre testimony
cannot be sustained. Reversed and remanded.
Quanah Bennett VS. the State. from Falls
county; opinion by Wilson j. After the only
witness for the state had testified, defendant
recalled him by permission of the court and laid
a predicate ior impeachment. In this there was
no error. r. App. 2S6; L App, 66S. Afterwards
defendant offered the impeaching evidence but
it was rejected. because by recalling the witness
defendant made him his own and could not i'm
oh m pyaG orr md in viz W nf fha
fact that said witness furnished the only evil
dence of defendants guilt, material error. By
simply recalling him for the purpose of laying
the predicate defendant did not youch for his
and the impeaching testimony was
not irrelevant, as it showed the animus, i'll
will and disregard OF truth. Reversed and re-
manded.
Bud Tucker VS.. the State, from Llano county;
opinion by Wilson, j. The charge under the
tanned by the evidence. If the facts had been
properly charged the evidence would sustain the
but as it is the allegata and pro-
bata differ. Reversed and remanded.
Gulf, Colorado and Santa Fe Railway Com
pany vs.. Mrs. E. T. Bell, from johnson county;
opinion by Wilson, ]. AT some former time
the statement of facts was stricken out because
not properly authenticated by the trial judge.
Appellant moves to reverse the Judgment be-
pause it has been deprived of a statement of
facts without fault on its part. This motion is
not maintainable and is overruled [Sayles' Rev.
st. ,1379a69 Tex 1856: 81 Tex, 5g4 In the absence
Of the statement of facts the assignment of err
ror cannot be determined, and the judgment is
affirmed.
st. Louis, Arkansas and Texas railroad COM
pany VS.. G.. c. Ovenbaum, from Hill county;
opinion by Wilson, J.. A bill of exception in
this case, condemnation proceeding complains
Of the ruling of the court that appellee was en-
titled to open and close. 1t does not appear
however, that appellee availed himself OF tine !
privilege, and as we cannot assume that the |
privilege as granted was exercised. because such
assumption would be impugning the correctness |
Of the Judgment, the error of the court if erro-
it was, is immaterlal, The charge of the court |
Is substantially correct, and the record does not
show that any additional charges were asked. |
Affirmed.
Western Union Telegraph Company vs. W. ].
Godsey, from johnson county; opinion by Will |
son, j. Suit against appellant for failure to |
transmit and deliver telegram. for actual and |
exemplary damages. The latter claim was set |
up in a trial amendment upon general allega-
ton OF gross negligence. Exception thereto |
was overruled. This was error, as no facts were /
alleged which under the law entitled appellee to !
recover exemplary damages IS Tex, 10: IS /
Tex, 272; 81 Tex, $751; We are inclined to be- |
lieve that actual damages for anxiety of mind |
would be recovered, and the exceptions to that |
claim were properly overruied. Reversed and /
-emandcd.
county; opinion by Wilson, j. Appellee sued I
Miss BarIinger for rent. and sued out a distress /
which was levied upon furniture found I
on the premises. Appellant made claim to the |
furniture. and upon the trial Judgment went in |
lavor of appellee Appellant bought the prop
srty a short time before The levy. the property /
being then upon the rented premises and a. /
though purchaser in good faith ETC., appel /
ant had constructive notice of appellee's lea /
because of the fact that the property on the |
rented premises. Rev. ST.. si22a: GO Tex 4i4:
il Tex, 1874; 81 Tex, I5sl The amount of the |
Judgment for rent was not an issue in this case
and could not be inquired into here. l6S Tex..sf
O6 Affirmed. : ,ssssss.ii 4 4
The use Of Augoss sfeises The apue- /
lite and keeTa fgest4ye organs in order /
DEs$S 3 e4egart & Sons, sole Eanufae- |