Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-28
THE HIGHER COURTS.
synopses OF Decisions Rendered at the Present
Austin Sitting.
Correspondence Of the Gazette.

| synopses OF Decisions Rendered at the Presen
Austin Sitting.
Correspondence of the Gazette.
AUSTIN, TEX, June 25,-Zillian Bianch
ette VS.. the state, from jefferson county
! Judge who tried this case not appearin
| OF record, this conviction cannot stand for tina
reason. In the crime Of incest the female 4
| equally guilty with the man, and If she testite
against him she is an accomplish witness who's
testimony must be corrobrated. No zorro ora
ton was had in this case, and this is error. Re
Dave Kitchen VS.. the State, from VictoriI
county; opinion by Wilson, j. Only one wit
ness testified to the falsity. of defendant
statement, and his testimony was directly con
| tradicted by that of defendant and an unim
| peached witness, and his credibility was also
impeached. He was not credible witness
and his testimony was not strongly corroho'
rated. For this eason the evidence is insufh
cient to support the conviction. The cour
should have instructed the jury, IS requested
by defendant, that if the evidence showed saiC
witness not to be credible, to acquit defendant.
The testimony OF Hill was not admissible fol
any purpose. Reversed and remanded.
G. NJ. Tillman VS.. j. B. johnson, from Ed
wards county; opinion by Wilson, j. No facts
appear which make the service of citation on
Frees alone valid as to all other defendants SO
as to authorize Judgment by default against
them. Reversed and remanded.
Gulf, Colorado and Santa Fe Railway company
VS.. S. D. Ritter, from Dallas county; opinion
by Wilson, j. Judgment for 500 for killing a
horse. 1t was incumbent on appellee to show
that the injury resulted from an actual contact
of the horse with the train. In our opinion this
Is not established by preponderance Of the ev-
idence. Reversed and remanded.
Eva Williams VS.. w. NJ. Sims, from Lamar
county; opinion by Wilson, J. From judg-
ment for SIS 20, appellant appealed to the
county court where the cause was dismissed for
misdescription of the judgment and because the
the Judgment properly. Judgment was rem
dered on August 26, on September 3, motion for
new trial was overruled and bond was filed on
September 13: this within the ten DAYS al
lowed by statute. This court entertains juris-
diction of an appeal where there has not been a
trial de novo in the county court and the amount
in controversy on the judgment of the justice
court exceeds $40. Reversed aud remanded.
San Antonio and Arkansas Pass Railway Cons
pany VS. Joaquin Leal, from Wilson cogntfl
opinion by Wilson, j. Judgment againsk 6p-
pellant for $3.50 for killing jack. One witness
proved that he found the jack about thirty feet
from appellants track, bruised on the rump and
hind parts: the injuries were fresh; two days
before the jack was in good condition. This is
all the evidence at could connect appellant
train with the death OF the jack and is INSULT
cient to support the verdict. Reversed and re-
manded.
Missouri Pacific Railway Company VS.. E.
Breeding, from Milan county; opinion by
chinery shipped from Erie, Pa, to Rockdale,
the machinery arriving in broken and dam
aged condition having become so by defend
anti negligence. The particulars and extent of
the breakage are not stated, and for that reason
the special exception should have been
tanned, and it was an error 10 allow plaintiff to
testify to special items of damage. The measure
of damage was the difference between the value
of the machine at the place of delivery at the
time and in the condition in which il ought 10,
have arrived, and its value at the time and id
the condition in which it was delivered. In the
absence of proof to the contrary the impression
prevailed that defendant delivered the ma
chinery in the condition in which it was re-
ceived, and the jury should have been SO in
structed. The verdict is also excessive. Re
versed and remanded.
Gulf, Colorado and Santa Fe Railway Com
pany VS.. ]. E. Thompson, from Milan county;
opinion by White, P. j. Appellee in an
amended petition filed more than two years af-
ter the original petition set up number of new
items not CT aimed in the original petition. The
exception to those items as being barred should
have been sustained. The finding of the court
is also excessive in this that damages are given
for more corn than was claimed to have been
destroyed. Reversed and remanded.
James P. Carswell VS.. Tine B. Crawther, from
Ell Paso county; opinion by White, P. j. Theres
was no final Judgment in this case in the courts
below, and we cannot therefore entertain the
appeal. Appeal dismissed.
j. c. Mcneil VS.. the State, from McLennan
county; opinion by White, P. J. Appeal from
conviction in county court for carrying pi stol.
A plea of former acquittal was interposed, de-
PENDANT having been tried in the mayors court
OF Waco, The punishment for the offense is the
same as in the state courts but this is in excess
OF the jurisdiction given the city by the charter
and the ordinance was passed after the charter
was granted in which the punishment OF offenses
was limited, '.unless a larger fine and longer
imprisonment Is herein allowed This clause
did not extend to the ordinance in question. The.
plea properly stricken out. There are noe
errors in the conviction, and it is affirmed
opinion by White. P. ]. No errors are sh own in
bills of exception Nos. l, 2, and 3, and regard
ing the fourth bill, it was perfectly legitimate in
to prove that twice defendant drew his
pistol on one Willis under the mistaken
impression, as he acknowledged that 1t was
p-o1 lnNr ha -irarr tn hat
day The special instructions were properly
refused, because the law of the case was most
fully, clearly and pertinently presented upon
every legitimate issue by the admirable charge
of the court. On a motion for new trial
the failure to charge on manslaughier
was first complained Of. But as all parties I'M
derstood the case there was charge of murder
and the defense iustifable homicide. There was
no manslaughter In the case. Defendants pun
ishment is five years in the penitentiary and he
has reason to congratulate himself on the mild
ness of the punishment. Affirmed,
G. W. Porter vs.. City OF Abilene, from Taylor
county; opinion by White, p. j. Condemnation
proce eding for street purposes in the county
court. In such cases the power must be pur-
sued with all constitutional and statutory limi-
sta ute do not seem to have been complied with
in this case, and therefore the proceedings are
wholly void. The prerequisites to the proceed
ing in the court had been disregarded. The in
junction heretofore granted is peTpetuated and
the cause reversed and dismissed.
Jim Leper and Ed Powell VS.. the State, from
Coryeil county; on motion Tor rehearlng; opinion
hq. Wilson, j. A majority of the court ad-
Atfes to the opinion heretofore rem
fefed, Judge Hurt dissents from that
portion of the opinion which holds
that the mere disqualification of Juror does
not con stitute ground for new trial and fles
his objection. He concurs in the other views
expressed in the original opinion. 1t is the
imperative duty of this court to be guided
by the statutes wherever there is a
statute applicable to the question presented.
Our code enumerates the causes for which q
new trial may be granted and excludes all
others. None OF the causes embrace the dis
of trial juror; nor is this consti-
tuted ground of implication. Under g. c. H.,
Art. III the error committed must be material
one, calculated to iniure the rights Of defend
ant, This is not applicable to this case. Mo-
ton overruled. Judge Hurt dissenting, 100000
f.. en- ~. n.,,v e..z..s,sfl IS ssss ~.