Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-22
COURT OF APPEALS.
DECISIONS RENDERED AT THE
AUSTIN SITTING.
The Findings - Hon. John Z. White,
Presiding Judge; J. NJ. Hurt and W. L.
Davidson, Associate Judges;
p. Walton. Clerk.

= c. Walker VS.. the State; from Bell
Murder in the second degree, with ten
ears in the penitentiary. l. The court in
discussing the case assumes the following
facts, proved by the state to be true: Ap-
pellant Walker was a'saloonlleeper in Tenn
pie, and Shearrar, who is jointly charged
with him, was his bartender About 10
o'clock at night Shearrar became very much
intoxicated and appellant started to take
him home and put him to bed. The two
started up the street with that end in view,
and started across 4 street on narrow
plank crossing leading from one sidewalk
10 the other, and only one person could go
at 4 time. Another party joined them in
crossing. The said party went before.
Walker, the appellant, came next and
Shearrar last.
About the time these parties started across,
deceased also started across behind said
parties, accompanied by a companion.
When near the middle of the street de-
ceased attempted TO pass by Shearrar, or
slipped and fell against him. Shearrar i'm
mediately muttered something and, turning,
fired the shot that killed deceased. Appel
ant. upon the firing of the pistol, immedi
ately turned and struck deceased with his
fist. Appellant took Shearrar home and,
after putting him to bed, came back and
found deceased and talked to him about the
natter. Deceased told appellant that
helped him do it. Appellant replied, Il
never did anything to you, john Held:
The evidence does not support the verdict.
There is an absolute lack of evidence going
10 show that appellant acted together with
Shearrar in the commission of the offense.
Reversed and remanded. White, p. j.
c. W. Martin vs.. the State; from Lamar.
Unlawfully pulling down the fence of an
other. !. The offenSe denounced by article
Isl Penal Code is 4 misdemeanor and not O
felony. .. Counsel for both parties agreed
upon a statement of facts except as to one
sentence. Counsel for appellant took the
same TO the trial judge before the ten days
were out and explained the matter as to
The agreement save one sentence. The
Judge said he would prepare a statement
and file it in time. The judge was candi-
cate and left town on his canvass, failing to
file any statement at all. Held Appellant
has been deprived Of statement of facts
with no fault of himself or counsel. The
Judgment cannot stand. re App, 241.l
Reversed and remanded. White, p. J.
Lorenzo Perez vs. the State; from Mid
land. Murder in first degree with death
penalty. /. Appellant and other MeXicans
had stolen two saddles from deceased and
another party. The owners of the stolen
property unquestionably had the right to
pursue the thieves and recapture their prop
erty if it could be done, and this, too, with
out warrant, where it was impossible to
secure a warrant Of arrest, as in this in
stance. 2. Deceased was pursued and
cruelty and foully stabbed to death by ap-
pellant and his companions. and there is
absolutely no self-defense in the case. There
is no error and the law will be permitted to
take its course. Affirmed. White, p. ].
Mock Massie vs. the State; from Dallas.
Murder in second degree. l. Where Grim
inal action has been pending for nearly two
years an application for continuance on
account Of the absence Of witnesses should
show not only whether said witnesses have
been duly summoned, but also whether the
said witnesses have been in attendance on
the court. A failure to allege and show
this is a want Of diligence. 2. The appliea-
ton for continuance is defective in that it
does not state that the information received
BY appellant from the absent witnesses to