Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-11-18
COURT OF APPEALS.
synopses of Decisions Rendered ut the Pres
ent Tyler Sitting.
Correspondence Of the Gazette.

Correspondence OF the Gazette.
TYLER, TEX. Nov. 15.-Joe Lewis VS..
first degree with the death penalty as
sessed. l. Statements OF the deceased
made one hour 70 one hour and q half
after she was fatally cut, as to who did
The cutting. was admissible Us part OF
the res grstae: she not having spoken IN
the interim save il groaus or screams
caused presumably by the wounds. =.
Tie court did not err in admitting in evil
dence an admission or confession of de-
PENDENT made after the homicide, to the
effect that he killed deceased ana wanted
to Kill other parties VINO had interfered
with him III the cOmnlis sion of the Of
tense. The confession tended To show
express malice, and shows defendant
enniiy toward deceased was SO great II
embraced her friends. Statements made
by 81 slayer at the time of. aud even after
the homicide, are often pertinent evi-
dence to show express malice. 5. Re-
marks OF COURT and counsel for the state
did not prejudice rights of up; elant.
No error. Affirmed. Wilson, 7.
l. J. Thompson Us. the State; from
Bell. Murder in second degree. /. A
bill of exceptions to he onsderei must
sufficiently set out the proceedings and
attendant circumstances below, to ENABLES
this court to know certainly that an error
Was committed. =. The state introducing
evidence TO impeach one of its own wit
uesses, the court erred in failing to in
struct the jury that said testimony was
admitted for the sole purpose of i'm
l, Ia ~
that purpose only. Without this i'll
struction the jury may have regarded it
as criminative of the defendant. T2S
APP. 10, % App. 404. A verunl in-
struotion telling the jury as TO its legiti-
mate purpose, would not be equivalent
to an instruction 70 that effect in the
charge. Reversed and remanded. VII
son, j.
Henry johnson VS.. the State, from
Raiups. Murder in the first degrees with
the assessment of the death penalty. |.
To attack a juror Of the panel on the
ground of bias and prejudice, there IEust
be some affidavit or evidence in support
of the motion. .. We presume that the
three ENie attorneys appointed By the
court to represent the defendant would
have promptly taken exceptions to any
supposed error Of ruling by the court,
had any such occurred, ard we Will
further presume that i'll their opinion
and in the opinion OF the court, a state
ment of the facts could hive awaited the
defendant absolutely nothing on his APP
peal, or one would have been made olt
aud submitted for our revision. 3. The
Indictment being sufficient, and the
charge of the court uuObj Objectionable, ana
there being no error of any Kind mani
fest of record, it only remains for us to
perform our duty ana affirm the juig-
inent of the court below. Affirmed.
White, p. J.
John Lunsford vs.. the state; from
CoTyeIl. Theft OF horse. :. We think
the court below erred i'll rot granting 9
new trial because OF the iusuiIicency of
the evidence. There is no evidence con-
Meeting appellant with the theft, if IN
deed the property was stolen by any one.
Not a fact is proven inconsistent with
the innocence of appellant. Because the
conviction Is without evidence to support
it. the Judgment can not stand. Re-
versed and reminded. Wilson, j.
George a. Eddy, ct al. , receivers, VS..
Il. Il. Harris; from Hunt. /. The re-
lease plead and claimed By the railway
company was eXecutoTy and did not con-
stitule an accord and satisfaction OF
Gppellees claim for damages 81 Am.
Rep. 49l-72, Tex. 1927 is not in point.
III that case the release was executed by
q payment of one dollar aud re-eInploy-
ment as agreed. 2. Appellee IS not
shown TO have known of the defect in the
lever, or 10 have been guilty OF contri-
butory negligence, or q want of prudence
and care. Affirmed. Per Curinm.
State of Texas vs.. a. J. Sansoni ct
el from Hunt. suit on liquor deaier'5
bond. l. The evidence shows tha: the
screen did not obstTuct the view from the
front street of the place where the liquor
was sold. Evidence shows that the house
was an open one defined by statute.
Affirmed. Per Curtain.
Richard Russell VS.. the state. from
Goliad. Assault to murder. /. The
evidence and charge are sufficient. 2
The evidence need not show the otfense
to have been committed on the exact
data alleged in the indictment. At
flrued. Per Curiam.
John Lewis vs.. the State, from Har-
ris, theft of cattle. First-Evidence
amply sufficient and charge correct.
Second The testimony CT kinlmel (who
was Jointly indicted with appellant, for
the theft, and whose case was dismissed
merely cumulative, and does not furnish
ground for d new trial. 1t would not
probably change the result in view of
other evidence in the case. There is no
reversible error. Affirmed. Per Curum.
S. j. Mings vs.. State NOtional Bank,
from Tarrant. Motion to dismiss n mo-
ton 10 affirm on certificate. First. The
appeal i'll this case having been dismissed
on a former day of the term because no
briefs were filed by appellant, the mo-
ton to dismiss the certificate on the
ground thai az appeal hid once been
perfected, eau not be sustained. Ap-
peilant should have fled transcript and
asked for hearing on the record. Mo
ton refused. Per Curium.
Sam Smell vs.. the State, from Greer.
First. The motion to set aside submi5-
sion heretofore had in this cause will be
granted. Submission set aside. Per
Curium.
Charles Smell VS.. the State; from
Greer. Motion to set aside submission.
the motion 10 set aside the submission