Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-04-20
COURT OF APPEALS.
DECISIONS RENDERED AT THE
PRESENT AUSTIN SITTING.
Hon. John z. White, 7. j.: j. ". Hurt and
w. l.. Davidson, Associate Judges
p. Walton, Clerk.

| the appellant, or or about the 10th day OF
March, 1889, in the county OF Haskell and
state of Texas. did then and there unlaw-
fully, at night, in the county and state
aforesaid, by force, threats and fraud,
break and enter :, house there situate,
and occupied by r. A Anderson, without
the consent of the said r. 4. Anderson,
and did, with malice aforethought, make
an assault IN and upon the said Il. A.
| Anderson and said house, with the intent
then and there to murder the said Il. 4.
Anderson. against the peace and dignity of
| the state" Held: The Indictment is de-
fective as to charging burglary, in that it
| fails 10 allege the intent of the appellant
| at the time he broke and entered the
| house" AT common law this character of
pleading was permitted but under our
statute, it is not allowed. Is App, Ia a;
| APP. %. We have the express Statu-
| tory provision that where a particular in
| tent is a material fact in the description
OF the offense, it must be stated i'll the in
dictment." c. {. P, Art. 423l
The intent is the very giSt of the Offense
and is as essential to the conviction of
burglary as the breaking or the entry.
| [ Is App, l21; App, 21ti. The conviction
was for burglary anu the indictment does
| not charge that ofeuSe, but IL is Il good in
| dictment for assault TO murder upon which
| appellant might be lawfully convicted. ,.
! Appellant and two others went to Auder-
| sons drug store (where he slept on the
| night in question and fired twelve or thir-
| teen shots from Winchester and two six
| shooters into various parts of the house.
| Appellant was not in u good humor, and as
| one Of the witnesses stated, HE was nad,
| but not mad enough to kill 1t was well
| known in the little town that Anderson
was not at home on the night in question,
but was visitidg 4 sick lady, he being u
| physician. Appellant and one of MS CO.
| defendants made an examination, found
Anderson was not in the house, and then
| stepped back and fired the shots as afore-
| said. Held: This evidence negatives the
| idea of assault to murder. and we therefore
| hold that the evidence Us shown by the
| record will not support a conviction for
| that offense. Reversed and remanded.
| Davidson, j.
L. Holmes vs.. the State; from Grayson.
| l. 1t being shown TO the court that appel
| liant has settled and paid OFF the fine ana
| costs herein adjudged against him, on his
| motion the appeal will be dismissed. 50
| ordered. Per curiam.
w. C. Brinson ct al. vs.. J. H. Irwin;
from Collin l. No error in sustaining eX-
captions TO the answer of defendant setting
up what Tompkins said, etc. The evidence
is sufficient to sustain the conversion by
appellants. . The amount of the Judgment
is supported by the evidence. As 10 other
facts Of the case they are as usual conflict
ing, but this conflict was settled by the
court below. Affirmed. Per curtain.
y. ]. Dulaney VS.. L. F. Otey; from
Nolan. l. There is no statement OF facts in
the record, and appellee having entered a
remittur for the amount of the exemplary
damages awarded him, and this being case
of the trial OF the right of property, We
find no error in the judgment IN 50 lar as 1t
gives appellee the property. Affirmed. Per
curtain.
s A Thompson VS.. Gage Bros. from
JEFF Davis. l. The petition stated a good
cause of action and cause within the jul
risdiction of the county court. >. The re-
duction OF the amount below the jurlSdlc-
ton by exception on the ground of limita-
ton did not GUST this jurisdiction, there
beingno fraud alleged as to Jurisdiction.
Affirmed. Per curtain.
G.. T. Clayton VS.. Burnett County; from
Burnet. /. The transcript was not brought
up TO the county court until the second
term after appeal was perfected. No error
in dismissing appeal Affirmed. Per Gu
Tiam.
Fort Worth and Denver City Railway VS..
j. W. Chewoweth; from Wise. |. Petition
was good as 10 exemplary damage. Evl-
deuce of Patterson was admissible to show
gross negligence on the part of appellant
and in rebuttal of appellants testimony
on this score. Under the facts proved the
Judgment IS not excessive. Affirmed. Per
curtain.
jim Norris vs. the1State; from Haskell.
Theft of cattle. l. The charge was suff-
Gent and there was no error in refusing de-
PENDANTS requested instructions. 2. The
evidence complained of was clearly admis-
sible. The court did not err in refusing TO
require the state to elect upon which count
it would seek or ask u conviction. Affirmed.
Per curiam.
c. H Ash vs.. B. F. Houston ct al. from
Collin. /. No question Of exemplary dam
ages shown by the record. .. The jury
found the title to the mare to be appellees,
and this eliminates the question of dam
ages from the case. 3. The evidence was
conflicting, but was sufficient to sustain the
verdict and judgment and we viii not. III
terfere Herewith. Affirmed. Per curtain.
Gulf Colorado and Santa Fe Railway vs.
w. F. hurry ct al. from Coleman. 1.uTes-
timony objected to was admissible. The
charge of the court was correct, and there
was no error in refusing special charges
asked. No reversible error. Affirmed.
Per curiam.
c. L. Nevil VS.. Lizzie Crosson ct NJ. from
Brewster Motion to strike out statement
of facts. l. A statement of facts which is
not agreed to nor approved by the court be-
low will not be considered in the absence
of reasonable excuse for not complying
with the requirements of law. Motion
granted. Per curtain.
Philip Tankersly VS.. the State: from
Fisher. Theft of property of the value Of
so. /. The charge of the court was cor
rect. The evidence is sufficient TO support
the conviction for q felony. ,. The bills of
exception are untenable and show no re-
versible error. Affirmed. Per curtain.
Jim Hanks VS.. the State; from Waller
Murder in the second degree l. The evil |
dence is sufficient and the charge fully pre-
sents the law of the case as made by the |
facts. > The facts did not call fora charge |
on manslaughter. Affirmed. Per curtain.
G. p. Watkins ct al. vs.. Wallace & Nc
Afee: from Collin. l. We think the AFT
davit and bond for attachment are sufi- !
cent. There is no reversible error. |
Affirmed. Per curtain.
c. L. Nevil vs.. Lizzie Crosson and J. NJ |
Dean; from Brewster. l. In the absence of |
statement of facts, the assignment of |
errors present no question that can be in |
teIligently considered by the court. No re- |
l. 4 / De-.