Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-11-03
be given. Reversed and remanded

(
Antonio Estrada vs.. the State; from
Wilson. NJ rider in second degree. One
Rubio testified TO fucts strongly support
ug the theory OF self-dpfrnse The
'tate proved by witness that Rubio was
present at d dance several miles distant
on the night OF the HON eide. In sup
port Of his motion for u new trial, appel
liant procured the affidavit of two wit
uesses who swear that while Rublo was
present at the dance. as sworn TO by the
witness for the state, but that it was not
on the night of the homicide but on The
night be fore. The proper showing was
/ made that this was newly discovered evil
( dence: He'll: A new trial should have
been granted. Reversed aud reInauded.
Hurt, J.
Lewis Williams rs. the State; from
| Harris. Receiving stolen Ir1perty. The
defense WIS that the property was pur-
| chased from u peddler. This was sworn
to by appellant and two other witnesses.
! The court charged the jury in effect that
II the explanation given WIS reasonable,
AMI was given when first called upon,
| then it devolred upon the state TO prove
the explanation false beyond a reuson-
able doubt. The court, however. failed
! TO charge upon the theory of the defense
! OF an actual purch1Ss of the property
! from pedirr. There was no exception
| 10 the failure of the court to so charge
| nor were special Instructions offered or
asked upon this point. Held: We do no:
! think the omission injured appellant, for
| the reason that il is not n Hil probable
that the iurv would believe the evidence
| in support OF the purchase, aui ye: dis
! believe the explanation. All of the evil
| dence tending TO support the purchase,
| tends with equal urgency TO establish the
truth OF the explanation. Affirmed.
Hurt, j.
Charles D. Gates vs.. Louis Mas; from
! Tarrant. Suit on pr"missory note ex-
erut-d by appellant to one Mill ken, ~ no
in turn indorsed the note 10 appellee.
Suit was brought hy appellee against ap-
prllaut, who p.eaded wnnt of consi1rra-
ton. This plea was verified hy the at-
hiavit of appellant "thut the matters
and things alleged in the foregoing plen
are true in substance and i'll fact TO the
best of his knowledge and belief. - The
court below sustained an exception to the
plea on the groun | that it WAS not posi-
lively alleged, but only Theoretically
that the plaintiff knew of said want OF
consideration before he cams into pos
session OF sal | note, md that the ali la
Wit is not sworn TO positively, but to the
tbest OF the knowledge and belIet' of
the alfinnt. Held: The plea was bad for
want of proper affidavit aud the court
did not err in sustaining exceptions
thereto; Is Tex, 323. 80 Tex 779. Az
tirtned. Hurt, J.
A. Devereux ct al. vs.. Louis Mas,
from THrrant. Suit on prOmissory note.
Plrn OF want of consideration. The plea
was supported by AFFIDAVIT that "Maas
bought said note with a knowledge of the
failure of consideration, as the afliant is
informed and believes. Held: The
court did not err i'll sustaining all eXcep-
ton to the plea. The affidavit to the
plea was insufficient. Hurt, J.
Arch English IS. the state from Jones;
conviction for horse theft. After the
evidence for the state and defendant had
been introduced, and all of which tended
10 show that II the animal in question
had been stolen that il was stolen from
its range in Jones county July, 1888, the
stute over the objections OF Defendant
was permitted TO prove by one Klllens
that an animal belonging to his father was
stolen from Its range, in Fisher county,
some eight and oue-half miles from
where the animal in controversy WAS
taken, which mare, one Nc /
Adams testified, he had pur-
chased from appellant and his |
brother in Motley county in June, 1889, |
about the time they sold the horse III |
controversy. Held: This evidence WAS |
not admissible. 1t is not competent to |
prove distinct theft committed at ar |
oiher time and place by the defendant. |
Reversed and reminded. White, Z. j. |
W. b. IND Margaret Lnngston vs.. Ira |
Hammond; from Anderson. The evil |
denre as shown 10y the statement of facts |
does not show the title 10 the property to |
ue i'll appellee. Because the evidence |
does not support the judgment, the case |
Is reversed aud remanded. White, P. J.
G. L. McGlin vs.. the State; from |
Uvalie. Theft from the person. The |
prosecuting witness testities that he wss |
in his room living on a bed at the time of |
the theft. That he was asleep when ap- /
pellant came into the room, and that he !
felt the hand of appellant rs 1t went |
down IL his pants pocket, and uefore ap- |
pelluut reached witness pocket book. |
That when the appellant took hold of the |
pocket book aud drew il ont of the wit |
ness pocket, witness said. "that don't |
go, and took his purse from appel |
liant, Held: Appelunt's offense was |
no. complete, and the prosecut- I,
ing witness knew what he was doing
before the appellant hal taken the prop
erty. The judgment must be reversed
because the evidence does not support
the allegation III the indictment that the