Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-22

the effect that deceased was having adul-
ferrous intercourse with his (appellant's)
wife, was the first time that he had such
information. The record shows it was not.
3. The evidence shows that appellant knew
of the adulterous conduct of his wife and
deceased for some time prior to the homi-
eide. He did not shoot deceased when he
first heard of it. The shooting was delib-
erately and carefully planned, and there
was no manslaughter. 4. The jury found
against the theory that appellant shot de-
ceased in the act of adultery with his wife
and appellant is bound by the finding.
There is no reversible error. Affirmed.
Davidson, j.
W. A. Frizzell e vs.. the State; from Tay-
lor. Murder in the first degree, with the
death penalty. The cause was tried on
change Of venue from Comanche county. L.
The action OF the court in changing the
Venue upon its own motion win not be re-
yised on appeal unless it be shown that the
defendant has been materially prejudiced
thereby. IA App. 81; "a App. 49, 2.
Where the change of venue is made of the
courts own motion it is not required that it
be TO the nearest county. 3. 1t is unlikely
that the absent witnesses testimony as to
the insanity of appellant would have
changed the result Many other witnesses
testified as to his insanity t. There was
worn by deceased at the time of the murder.
rs App. 20S; 2S App. 203 5. If appellant
desired fuller charge on the issue of in
sanity than that given he should have re-
quested further instructions on that ques-
ton. 6. We think the evidence fails to
show that appellant was insane at the time
of the deliberate and unprovoked murder of
his wife The evidence supports the death
penalty. Affirmed. White, P. j.
/. B. Warren Us. the State; from Bell
Murder in second degree. /. The evidence
shows that appellant was married in April,
1890. On May 13, 1890, his wife gave birth
TO a seven mouths old child The mother of
appellants wife and her two daughters
were very much incensed about the matter
and insisted on his taking the child away
The evidence shows that the child was very
weak; that it never tried to nurse but once
and that at one time it apparently died, but
subsequently revived. Appellant finally
agreed to take the child to Bolton, where
he started to take the child. His mother
in-law and sisters-in-law all testify that the
child was gasping for breath and appar-
emily dying. Appellant testifies that on the
road he examined it and found it dead.
Appellant says he first thought he would
take it to the cemetery in Bolton and leave
it until morning, but on second thought de-
clined the idea, thinking some one might
SSG luSiS tuC HSAt DelOrt uS WOulu.
He then deposited it under some bushes
close to house intending (as he says) to
come back next morning and bury it. The
next morning he testifies that he started to
get the child and when he came close to the
house where he deposited it, he thought he
saw it (being wrapped up in a blanket) on
the gallery of the nearest house aud
woman standing by it. He testified that
this so frightened him he drove off and
never returned. 1t TRANSFERRED that this was
not the child, and it was found three days
later where he deposited it. Held: The
evidence is not Of that conclusive character
as will sustain a conviction. There were
no marks Of violence on the child. Re
versed and remanded. White, P. ].
Joe Ulrich vs. the state; from Wilbarger
Assault to murder. l. An affidavit of a
juror attached to the motion for a new
trial shows that each juror voted the num-
Der of years he was in favor of giving ap-
pellant in the penitentiary and that these
were all put together and divided by twelve
which was the number of years for which
appellant was sent up. Other Jurors filed
afidayits that the verdict arrived
at in this matter was not absolutely bind
ing on the jury and that after the result
was obtained the jury then agreed on it as
their verdict, and that it was not so agreed
by them that the result reached by addi- |
ton and division was to be their verdict
untils after the result was reached. Two
jurors made affidavit to this effect Held: |
There was conflict in the evidence as to
how the verdict was reached and the court
below settled that conflict by overriding