Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-05-25
COURT OF APPEALS.
DECISIONS RENDERED AT THE
PRESENT AUSTIN SITTING.
The Findings-Hon. John =. White. Y. j.,
j. NJ. Hurt and W. l.. Davidson. As
socIate Judges: Z. Walton. Clerk.

Augustine CONVICTION for murder III the
second degree l. Appellant had only
known deceased from the Sunday morning
previous to the homicide, at which time he
hired him TO assist in gathering crop. He
(deceased) was 4 tramp and appellant,
together with others, suspected him Of
being a horse thief, and his actions on the
day previous TO the night of the homicide
led appellant and other parties 10
believe that he was going TO steal Il horse
that night. They accordingly watched. and
appellant. who had his mare at his brothers
in u lot, stood guard over the animal 10 pre-
vent deceased from stealing her. He took
a position under tree and subsequently
saw some one leading his mare toward the
lot gate. Appellant called. but deceased
made no reply. Appellant then waited I'M
I'll deceased led the mare outside the gate.
when he hallooed 10 him to hold up" De
ceased then turned the mare loose and
turned on appellant and exclaimed. stand
back, God d-n YOU. " Just before appellant
fired. and while deceased was advancing on
him, deceased raised his hand. but appel
liant could not tell whether anything was in
il or not. Appellantthen fired five times in
rapid succession, killing deceased. y hal
tar was found in his hand, a spur III his
pocket and TWO stones close by where he
fell. Held: The court erred, under the
facts in this case in refusing 10 charge the
jury that If it reasonably appeared by the
acts, or words coupled with the acts. that
il was decedseG's purpose To steal the
horse OF defendant, and that such killing
took place while the said Gipson Was IN the
act OF stealing said horse in the night
time. or While said GipSon was still ii the
place where said theft had been committed,
OF within reach OF gUnshOt from such place,
then yOu viii ina defendant not guilty.
The law permits a homicide when
inflicted for the purpose of preventing
theft at night and the homicide. il such
case is justifable where the theft IS com
miIted or within gUnshot from such place.
Laws VS.. State, 70 app. 643. II makes no
difference under our law whether the party
had abandoned the property and Is fleeing
from the place OF the theft, il he be shot
while he is still within gunshot from the
place where the theft was committed. Re
versed ami rcmanded. White p. J.
Dixon English vs. the State; from Jones
Conviction for theft of u morse. /. The
application for continuance was based on
the absence of fifteen witnesses, and the
trial Judge says in opposing the Dill of CX-
ceptions that the diligence alleged in the
application is shown by the process. One
of the main incuIpatOly facts relied on by
the state was that the purpOrted power of
attorney under which appellant claimed he
had authority from 4. o. Edwards 10 sell
the animal IN question was fictitious and
fraudulent anu tildJ tlleIt was no SuCiA
person as said Edwards. Another
fact relied Oh by the state was
that appellant and his brother
when they sold the animal in question rep
resented themselves to be named Edwards
and so signed the bill of sale. Appellant
proposed 10 prove by his absent witnesses,
Johnson and Bond. that they were present
at the execution of the power Of attorney
from \. o. Edwards 10 defendant and that
said johnson witnessed same. and that said
instrument was bona hde. Appellant also
further proposed TO prove by three other
witnesses that they We're present at the
time of the sale of the alleged stolen ami
nal to Holloway, ana that appellant SAID
his name was Dixon English and desired
one of them to carry message TO Harry
English and that the witness wrote down
al the time appellants name in the pres
ence of Holloway. The latter testified that
these latter named Witnesses We're present
when lie bought the horse from appellant.
Held: The court erred in not granting the
continuance. We think the proposed alb
sent testimony was material to the defense.
Reversed and remanded. White. p. J.
Charles Lyle vs. the State from Mitchell.
Keeping and exhibiting a gaming table.
!. The Indictment is good and the charge of
the court is sufficient. Tie first paragraph
of the charge copied the entire article of
inc COue ucNHIIS oduhIhS games anu
gaming tables. but in the subsequent por-
tions OF the charge when the court came TO
submit the law Of the case as applicable to
the jury, he properly limited the finding of
the jury to the case as alleged III the in
dictment. No error in refusing requested
instructions. Evidence sufficient II
App, 205-27; App. Chappell VS.. State.
Affirmed. Per curiam.
John Sherwood VS.. the State: from Wise.
Murder in second degree. l. The charge