Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-20
THE HIGHER COURTS.
Decisions Rendered at the Pres.
ent Austin Sitting.
The COMMISSION OF APPEALS.
The Court of AppeaIs-Hon. John P. White,
fresiding Judge; j. NJ. Hurt and W. l..
Davidson, Associate Judges;
p. Walton. Clerk.
Court of Apnealx.

Henry EpSOIil vs.. INC IoIdle- lIpui I'LL
Burglary J. Appellant was found in pos
session OF 4 pistol identified as proceeds of
he burglary the pistol being left with one
Fields at saloon. The appellant sought
70 prove by the witness Fields, who had al
raady testified TO facts above set forth, that
when he left the pistol with witness he
,oid him TO deliver 1t TO Ed Coley after he
.C0leyJ became sober, providing the latter
"a Ell for it, and also that he never claimed
ownership over said pistol or exercised any
az of ownership over the pistol Held: In
view of the fact that appellant proved that
t-oley dropped the pistol on the platform
and appellant picked it up and went off to-
wards town ana left it at the saloon. we
think the court erred in refusing to admit
The testimony sought to be introduced by
appellant. The state showed the act of
,eaving the pistol at the saloon and the evil
ience was explanatory Of that act. Re-
Yersed and remanded. Davidson, j.
Toe Barter VS.. the State; from Madison.
Assault to murder. !. The state was prop
er!y permitted TO prove that on the evening
Of the assault appellant, in the presence of
,wo witnesses, remarked that he was going
10 get that much of ''Hardshell fat, -
holding the blade of his knife in his hand,
i being shown that the family of the as
,Aulted party were the only members Of
= he Hardshell Baptist church in the neigh
uorhoOd. 1t tended to show malice and
was admissible. 2. The court in stating
ne penalty stated it to be mot less than
lwo more than seven years, > leaving out
the word ''Ror'; between the words "twoo
,nd more Held: The verdict was for
wo years. and we do not think the jury
sould have been misled. The omitted word
nor was easily supplied from the con-
ext. No error. Affirmed. Davidson, j.
Jose Maria Mendez VS.. the State: from
Val Verde. Murder in the first degree
with death penalty assessed. l. There is
40 error in the charge of the court stating
nat sail murder committed with express
malice is murder of the inst degree and
murder committed in the preparation of
robbery is also murder of the first degree.
and this. though the Indictment did not
charge murder committed in the perpetra-
ion of robbery, but charged murder on eX-
press malice Murder in the preparation
Of robbery is per Sc murder of the first de-
gee 10 App. 400: Il App. 4S6; % App,
Isl The evidence sufficiently shows muir
der in the preparation of robbery. .. The
state had right TO recall appellant as a
witness, he having previously testified in
his own behalf. BY testifying a defendant
valves the protection thrown around him
As such by the bill OF rights and the law
and assumes the attitude, place and liabii-
res attaching To him as witness the same
rs any other witness. Quintano VS.. State,
&c App Affirmed. Davidson, j.
sam Hooper vs.. the State; from Shelby.
Assault to murder. /. A continuance was
properly refused Oh the ground of the alb
senCe of a witness, whose evidence was not
probably true, and especially in view of the
fact that the facts sought TO be established
by him We're abundantly proven by others
Oh the trial. ,. II being Emancipation day
and the car being crowded with negroes,
all raising much noise and disturbance, the
testimony OF q witness that he remarked Ut
he time OF the difficulty that such conduct
was intolerable." could not have injured
appellant. 3. The charge when construed
As whole sufficiently submitted the issue
d specific intent TO kill. Affirmed. David
son. j.
Dick Duncan vs. the State; from MAYER
tx. Murder in the first degree, with the
leah penalty assessed. /. The applica-
ion for continuance was properly over
ruled. Appellant proposed to prove by
Howard. sheriff of San Saba county, who
was absent, that he voluntarily surrend-
'red when accused of the murder and that
MS reputation in san Saba county was
good. 1t was an lmdispUted fact that an
Jellant voluntarily surrendered. His
leighbors from San Saba county, who knew
appellant, were placed on the stand and ne
lad the opportunity o. proving his good
'haracter by them. The absent testimony
Il the witnesses, Bryan, Miller and John
,OR. 10 the effect that they saw appellant
n the western portion OF Edwards county
N the 2lst of February is directly contra
iicted by the father and brother of APP
Dellant. who Swore that at said time he was
with them in Mexico. The proposed alb
eat testimony of the same witnesses that
hey saw the Williamson family about the
anne time is equally as improbable and
lnrue. ,. The issues presented by the
instruction We're duly submitted
4 the main charge of the court g. The
supports the conviction. Appel
ant attempts 10 explain where he obtained
zone of the property found in his posses
ion He no place explains. or attempts
a do so, where he obtained the bed or
mattress found i'll his possession. No
motive is shown, but the evidence is con-
!usive that appellant, acting with others,
the Williamson family. AZ
irmed. White, p. j.
Simon Agar vs. the State: from Hopkins.
IN rehearing. l. On former day this
aUse was dismissed because no final judg-
lent was shown by the record. II is now
nowu by certified copy that the record
Sas erroneous. and that there was final
I6gment The dismissal IS set aside and
luss reinstated. 2. The matter assigned
5 perjury in this case is that defendant
estified Us witness before the grand jury
hat ha did not, NJ time and place speci- |
led, say and state to one Gilbert aud one
ohnsou, THAT he knew some of the per-
ons " no struck said Henry Chase in Hop
ms county, Tex, on the night of the 2tth
ay Of December, $780, Other essential
Legations were contained in the indict-
lent. Held: A conviction for perjury can
Ot DE sustained where there is no other ev-
deuce except proof of the taking of the
arh. the giving of the evidence upon which
erury is assigned, followed by proof that
q other times the prisoner. when not under
ath, made statements, the legal effect of
,hich was TO contradict his statements I'M
er oath. Brooks vs.. State; decided pres
nj term The indictment does not set
Ut matter which is material on an assign
cent for perjury, and the evidence does not
Import the verdict. Reversed and dis
lissed. White, p. j.
Archie. Washington vs.. the State; from
orange Murder in first degree with life
enalty. !. The overriding of an ap-
,lication for continuance viii not be con-
idered in the absence of bill of eXcep-
ions saved TO the ruling. :. The court
allied to define in his charge the meaning
hought'' This constitutes reversible err
.ep.. go, Reversed and renanded.
White, p. J.
Bill Ainsworth VS.. the State; from
Nr{nit,- Nrrf1a,. in Saeaua iacr,,aa ! Tho I