Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-12-19

motion to have the jury for the week So
lected by the jury commissioners, called
and tried as jurors before the sheriff
should be authorized to summon tales
men to complete the panel, the venire
being exhausted. Cohn VS.. State, q
Appeals, 709, and Weaver vs.. State, IS
Appeals. 547, which hold contrary
doctrine to the doctrine announced
above, are hereby overrued. This view
is supported by Art. 6l2, c.. c. z. 2.
Remarks made to Keller (who partici-
pn:ed in the shooting) by W q. Pope a
few moments after the homicide were
res gest8, and admissible In evidence.
The fact that Keller was under arrest
when the statements were made would
no; change the rule. 3. 1t was not error
to admit in evidence testimony to the
effect that soon after the shooting, when
Turner, who was also shot, reproached
appellant with shooting him and the
Popes, appellant called him (Turner) "a
id one-legged s-n OF b-h.' This
statement, though made under arrest,
was not a con tesson of guilt, but tended
to show the intent of appellant in the
shooting. 4. The evidence did not call
for a charge on mnnslsughter 5. The
ing direct, a charge on circumstaDtial
evidence was not called for. 6. Re-
marks OF counsel for the State did not
probably prejudice appellant. Z. The
proposed testimony of Mccoy being prob
ably untrue, il was not error 10 refuse
continuance, and ovvrruIe motion for a
new trial on that ground. The evidence
fully warrants the conviction, and there
is no error. Affirmed. Wilson, J.
J. NJ. Drake vs.. the State; from Hill.
Motion for rebearing. l. The motion
for rehearing by the state has been
patiently and carefully considered, and
our conclusions remain unchanged. 2.
The fact inquired about, that is, the
statement made by the witness, Jim mie
Drake, that he knew the appellant was
going to kill the deceased, is collateral
to the issue, and is not fr IT bearing
upon collateral issue. A settlement in
CONSTANT with witness testimony in
the trial, to be made the basis of I'M
parchment, must be q statement INA
terial to the issue, and ii must he of q
fact which the cross-examining party
would be entitled 10 prove rs part OF
his case. The statement of Jimmie
Drake did not involve q fact, but a con-
ciusion, an opinion or belief, aud was
therefore statement collateral to the
issue. ReheaTing refused. Wilson, J
Sam Beach VS.. the state; from Erath.
Theft of horse. l. Evidence warrants
finding that appellant was a principal.
.. Charge tuli and correct. Affirmed.
Per curtain.
Cage Brock vs.. the State; from Erath.
Burglary. l. The accomplire testimony
was cerrobora.ed. 2. Charge full aud
complete. 8. Issue aud purchase of the
gun was fully and fairly submitted. No
error. Affirmed. Per curtain.
David Kidd ct al, VS.. Joel Hayes; from
Delta. Certificate for affirmsnce. l.
The motion does not show that the court
below had jurisdiction of the subject
matter of the court. Motion dismissed.
Per curtain.
james Atherton VS.. J. II. Robb; from
Kaufman. Motion for rehearine. l.
Grounds of mo ion not maintained, and
there is no merit III the same. Over.
ruled. Per curtain.
w. +. S0mmerville VS.. ] NJ. Mullins;
from Tarraut. l. Counsel for both par
ties agreeing thereto, the clerk will issue
mandate at once. Granted. Per curtain.
J. NJ. Pearson IS. Household Sewing
Machine Company; from Hopkins. l.
for setting aside our judgment herein of
former day. Overruled. Per curtain.
Felix Tinsley vs.. the State; from Mont
gomery. ReheRring. l. Absent testi-
mony that would not probably change
the result of the verdict was Immaterial.
.. Special Instructions asked were prop
erly refused. Overruled. Per curiam.
Louis Williams VS.. the State; from
Harris. RehearIng. l. The judgment
of affirmance herein was correct. The
evidence amply supports the verdict.
Overruled. Per curam.
Gulf, Colorado and Santa Fe Railway
vs.. G. F. Rawiey; from Denton. l.
This case was instituted in justice court
and appealed to the county court, where
the appeal was dismissed. This 10 a petit
tion for an mi JUNCTION resti al ling ap-
peliee from taking any further action IN
the cause until the appeal can he per-
fected to this court. Motion granted.
Per curiam.
Robert Wynn VS.. the State; from
Smith. Reheariug. l. Question of de-
fendant's intent was fairly submitted.
Evidence supports the conviction. Over
ruled. Per curtain.
W. c. Baird VS.. the State; from
Milan. Conviction for selling liquor
without license. /. The evidence amply
supports the conviction eend there is no
reversible error. AtiiSAed. Per curtain.
'.In the mYast of ;sSsSe are in DEATH, That