Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-11-03
COURT OF APPEALS.
Synopses of Iscisf"ns Rendered at the Pres
Pnt Tyler 'ii,ing.

Synopsss of Tscisions Rendered at the Pres.
| Pnt Tyler 'iiting.
= Correspondence OF the Gazette.
TYLER, Ten. Nov. III. NJ. Drake
We. the State; from Hill. Conviction for
murder in the first degree, with the
death penalty attached. This is second
appeal [see % App 1881 and the second
time the death penalty has been assessed 6.
/. In pursuance of an order. counsel for
the state and defendant agreed to Il
statement of facts, which the judge re-
fused 10 approve and file, but prepared
and filed another statement, which con-
stitutes the record in this case. Held:
Defendant has not shown, nor does he
claim that the statement as agreed upon
and the one fled s materially different.
Unless defendant can show injury. he
cannot complain. ,. The term ''tilei
earring the term, ~ referring 10 filing of
q statement Of facts in Arts. 1878, r.
s.. must be construed lit connection with
Art. 1879, r. s., which article was
added III revising, and said article must
be construed rs an exception to Arts
days after adjournment. Us per or
der of the court, YVES LEGAL. 3.
Statements made about two min
utes after the deceased was shot,
and made with reference 10 the shooting
were res gestse and admissible in evil
demce. I. James Drake. Jr. "a witness
for defendant, was asked upon cross eX-
animation whether or not he stated III
no t,rpS,ura nj witnesses shortly altar
the shooting, that he knew before he
lett his fathers (the defenduuD house
that morning that his father (the de-
ftudanO was gong TO Kill Quinn, the de-
ceased. To this question he answered
no. Over the objections of appellant
four witnesses were intro lured to I'M
peach young Drake, and who swOre he
made the statements nj owe alluded TO.
The evidence was admitted on the
ground that it tended 10 impeach young
Drake and not as tending to crimiuate
appellant. Held: THIS evidence re-
lnted 10 u matter collateral TO the main
issue, and was matter OF opinion, not
of fact. The statement was merely
conclusion OF the witness, was not a
fact, and could BE- nothing more than an
opinion. The statement was Culculuted,
and doubtless did, influence the jury III
their finding. and We therefore hold that
it's iutroduotio was revers. Die error. 3.
While the charges on muusInughter and
self-defeuse are not full, i'll the absence
of requested instructions appellant can
not complain. Reversed anu remauded.
Wilson, j.
Green s. Johnson vs.. Edward II. B.
Brown; from Tarrant. The original
petit on was brought IN the name OF
Il lWard II . Is. Brown. BY III amended
petition plaintiffs name was stated to be
Edward II. d. Brown and judgment
trayed in his behalf. Notice of protest
of the note sued on was sent TO E. u.
Brow & Co. Plaintiff in other plead
iugs after the amended petition styled
himself E. Ii. Il. Brow. The Judgment
was entered in the name of Edward
II. b. Brown Held: SAID Judgment is
not Hual judgment, anu under the
peculiar facts of this case, the writ of
error is dismissed for want of final
judgment. Dlsmis ed: White, P J.
North Side street railway rs. W. A.
Tippins; from Tarraut. Appellee hitched
his team of horses attached TO q wagon
TO post Oh Main street in the city of
Fort Worth. Appellants electric street
car in passing along the street frightened
said horses, aud they broke loose and
running away broke the wagon. The
operator of the ear was sounding gong
but not louder than necessary to warn
people OIL The track. Verdict for up
pellee. Held: The sounding of the
gong did not constitute negligence.
Appellant had the legal right 10 operate
its street care aud would only be liuhle
for carelessness or Negligence. 1t was
not made TO appear thut by the use of