Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-23
THE HIGHER COURTS.
Synopses of Decisions Rendered at the Present
Austin. Sitting.
Correspondence of the Gazette.


Austin, Sitting.
Correspondence of the Gazette.
AUSTIN, TEX. June 22.-Will Davis VS.. the
State, from Burleson county; opinion by Will
son, J. If deceased made such an attack upon
defendant as would produce in the mind of de-
PENDANT reasonable apprehension of death or
serious bodily injury, defendant was not re-
quired to resort to all other means to prevent
the threatened injury, but had the riS h. to Stay
his assallant. Under no state OF the case was he
required to run away from deceased, he was
not required to retreat On these
points the charge OF the court is erroneous, and
it is reversible error. Reversed and remanded.
H. II. Balsel VS.. the State, from Clay county;
opinion by Wilson, J. In this case OF aggra-
waited assault an application for change OF
venue was properly overruled as our statutes
do not authorize change of venue in misde-
meanor cases. The conviction, however, is not
warranted, because the evidence shows that the
injury not serious within the meaning of
that word US used in the statute Il App. 3l5l
Reversed and remanded.
Jeff Rippey vs.. the state, from Hopkins couu-
ty; opinion by White, P, j. The court properly
permitted the clerk to endorse the file mark on
the indictment, before the trial commenced. In
capital cases juror once sworn in as such can
not be excused or discharged by the court I'M
less the whole jury is discharged. But this is
not the rule in afelonv less than capital. In
these cases juror is not empanelled, that is
sworn juror, until the whole jury has been
selected and sworn in as body. The fact that
an Objectionable juror was suspended is not suf-
hclent to raise the question OF the Juror status
witness can be impeached by showing that he
testified differently before the grand jury fxola:
what he testifes to at the trial. This is wellksss
tablished in this state now. 1t is proper to lepa
witness testify TO the measurement of track
and hoofs and compare them with defendant and
his horses tracks, and with ess may also give
The objection to the courts charge on circum-
stantial evidence is met by the special instruc
ton given at defendants request. The rest of the
bills of exception are without substantial merit.
Affirmed
Simon Ingram VS.. the State, from Grayson
county; opinion by White, P. J. The DEATH
penalty is assessed against appellant for rape.
Onr law expressly provides that person for an
offense committed before he arrived at the age
of seventeen hall in no case be punished with
death. In our opinion the evidence that de-
PENDANT was when the offense WIS committed
seventeen years old is wholly insufficient. Re
versed and remanded.
Jack Lockhart VS.. the State, from McCulloch
county; opinion by White, P. j. The charge
on accomplice testimony is correct so far as it
goes, and no additional simplifying charge hav
ing been requested this court will not disturb it.
In the charge upon recent possession the court
said when the state relies upon the possession
of recently stolen property as a presumption of
guilt This was tantamount to telling the
jury that guilt might be presumed from
recent possession, whereas such possession is
but a fact or circumstance to be weighed by the
jury, The sentence should have stated the fact
why the punishment is to commence at future
day. Reversed and remanded.
Absalom Phillips vs. j. VI. Warner, from Nc
Lehman county: opinion by White, P. j. APP
pellant sued appellee for damages for levyin
and selling under execution in appellee's favor
appellants exempt cotton crop growing on
sixty-hve acres of land which he had leased for
the current year and was occupied as home
stead. Judgment for appellee, the court hold
ing that leasehold would not support home
stead and exemption claim. Under the author
ity of our supreme court in go Tex. 2O9, and
cases there cited, this is error. Homestead
right will attach to an equitable estate for life
or lessehcld interest, and the growing crop on
such homestead is exempt. Appellee's plea to
AZ he
title to land was not IN issue. Reversed and
remanded.
Balke-Colendar Company ct al, from Johnson
county; opinion by Wilson. j. Appellees sued
one Lovelady on several notes amounting with
out interest, etc.. to $40, and they asked fore
closure OF q mortgage against him, and the other
defendants who had bought with knowledge of
plaintiffs lien. Under instruction of the court
the jury found in their verdict the sum due ap-
pellees as $40, viz: the principal alone. The
court in the judgment added the interest and at
torneys fees, making the sum total $500. 80. The
proper practice is for the jury to find the suna
total. The court instructed the jury matter
of law that the mortgage was void, yet in rem
dering judgment the court foreclosed the mort
gage. The validity of the mortgage is a cues
tion for the jury as it is not void or invalid on
its face. The jury was to determine whether or
not, under the facts the mortgage was forth
with deposited and filed in the proper office.
Forthwith, means as soon as by reasonable exer-
tion the object may be accomplished. No plea
of non est factum having been FLED the mort
gage was admissible without proof of execution,
ETC., as the petition was founded on il. 1t was
only necessary to show that the mortgage had
been deposited in the proper Office, not that it
had been registered. Reversed and remanded.
Blankenship & Blake vs.. Moore Bros. from
One assignment Of error complains that the
record does not show affidavit, bond or writ of
garnishment upon which judgment was rem
dered, nor is there an affidavit of the loss OF afi
davit, etc. The record sustains this assign
ment and this is fatal to the case. Another
assignment complains that judgment was rem
a-a6 inst tbar che Far
the answer only admitted 500 to be due al that
time IL was error to render Judgment for more
than 500, as the excess over that amount might
L. D. Graham rs. the State, from Milan
county; opinion by Wilson, j. The law makes
the county judge q magistrate and vests him
with power to issue warrants, and it is not nee
essary that he sign same as committing mag
istrate. - For the purposes Of this case the
warrant which stated only the surname of d.
PENDANT, and alleging that the given name was
is sufficient. The charge is clear and
correct, excepting that it misstates the punish
ment for aggravated assault. Such a mistake is
as was held in IS App. 90 and IS
App. SIS. For this error the is reversed
and remanded.
Wash Mason vs. the State, from Falls county;
opinion by Wilson, j. Kidnapping and alb
duction are unquestionably separate and dis
tinct ofenses, but as charged in this case they
are otfenses of the same character. It is the
well established rule in this state that it is no
objection TO an indictment that it charges sep
arate and distinct offenses if they be of the |
same character. The charge asked by defend
ant regarding the age OF the girl abducted
should have been given. If defendant was mis-
over seventeen years old without any want OH
proper care on defendants part in ascertaining |
the age, and the girl went with him voluntarily,
then he was not guilty OF either abduction or |
Kidnapping. Under the facts it was not error to |
omit TO charge the law on accomplice testimony, !
as the girl under no circumstances could have |
been an accomplice. Even IL the charge gifen |
he not incorrect, the conviction of abduction |
should be set aside on account of the unsatis-
factory and uncertain evidence upon which thAef
conviction is based. And the jury having |
acquitted defendant OF kidnapping once, the |
next trial should only be on abduction. Re- |
versed and remanded.
lrharlea Inhnsnn the Trauia L