Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-02-15

/ ne was leEdl ONllbI. III exception tue
amendment was stricken out on the ground
that it set up new. cause of action. Held /:
| Error. il was the same debt, etc. wv. and W.
| Sec as. Reversed and remauded. Opinion
| by Davidson, ]. Morgan & Freeman, Nc
/ Donald s. Stone for appellant; Mccormick
| & Spence and Ed NJ. Browder for appellee
F. Schoenfeldt VS.. the State; from Harris
| county. Conviction for incest with step
daughter. No error TO refuse to appoint a
stenographer. Nothing in the code requir-
| ing it, and no injury is shown for failure to
do so. The first and second sections OF de-
| fendant's bill of exceptions does not show
/ the purpose for which the testimony was
offered, or what the answers of the witness
would have been, are too indef-
! mite for consideration. Defendants
third bill complains that evidence
of the prosecutrix having had inter-
course with other parties was excluded
offered for the purpose of showing her
voluntary participation, and that she was a
particeps criminis, was excluded. II is not
| shown what the answer would have been
which renders the bill defective. And fur
ther held that the question of consent of the
female does not enter into the composition
! OF incest Defendant claims that if she
entered into it willingly she would be an
| accomplice. If 1t be conceded that she was
an accomplice then she was sufficiently
| corroborated The courts charge was not
upon the weight of evidence. Affirmed
| Opinion by Davidson, j. Gustaye Cook and
H. M. Fisher for appellant; Assistant At
torDey-General Harrison for the state.
- Franklin VS.. the State; from
,s9exar county. Conviction of murder and
death penalty assessed. A party may have
a perfect right of self-defense, though he
may not be wholly free from blame, the
| question being, what is the nature of the
blame. If the blame was not intended TO
produce the occasion or provoke the diff
Guilty the right of self-defense would be
complete. But II the act was violation of
the law and was reasonably calculated to
produce the occasion, the right of self
defense would be abridged. If defendant
was at the house of deceased for The pur-
pose Of improper conduct with the wife, and
deceased believing this. to be his purpose,
ATTEMPTED to kill him and defendant killed
deceased to save his own life. assuming
that defendant did not intend to provoke
the occasion, he would be guilty of man
slaughter upon the principal that his acts
were wrong, though not criminal Under
the Circumstances they were most fearfully
calculated to produce the occasion. De
PENDANT and the wife deny any criminal
act She says defendant came 10 her
house, said he wanted a place to board.
She said you must see my husband, he
will be at home this evening. Defendant
was asleep in the front room. She was in
the back room with the children. Deceased
came in about 2 O'CLOCK and the difficulty
occurred Defendant also had stab in the
bowels. Suppose the wife's story be true,
deceased coming in and finding defendant,
made an assault upon him and defendant
killed him in self-defense. This phase of
the case was not presented to the jury,
though called 10 the attention of the court
Reversed and remanded. Opinion by Hurt,
j.
Frank W. Kane VS. the City of Fort
Worth; appeal from Tarrant county. APP
pellant was a city officer and as such could
not enter the contract sued on nor could he
recover the amount sued for because the
claim was illegal Affirmed without written
opinion. W. B. Ford for appellant.
George Alley vs.. the State; from Nueces.
county. Conviction for burglary. The
charge of the court is correct and fairly
presents the law of the case as shown by
the evidence The evidence objected to
was properly admitted. Defendant was
not under arrest at the time he returned
the stolen property. The motion for new
trial was properly overruled Affirmed
without written opinion. ]. c. Scott for
appellant.
N. Roderick VS. the State; from Parker
county Conviction under article lob, Penal
Code, for converting to his own use funds
Belonging to the county as justice of the
peace. The question was the money paid
to the Justice funds belonging to the state.
The conversion of funds by an officer re-
ceived by him as such and converted by him
fraudulently will render him responsible
criminally, although the prosecution was
not carried ON strictly in the terms of the
law. Irregularities in the trial before de-
PENDANT as justice of the peace would not
relieve him from punishment for convert
ing the funds paid into his hands under the
conviction in said trial. The trial in the
Justice court, however, seems to have been
regular. Affirmed without written opinion.
A. H Culweu for appellant.
George Lyons vs.. the State; from Bell
county Conviction for assault with intent
TO murder one Scott. A serious bodily
injury was inflicted on Scott. Evidence
shows conclusiveIy that Hornburn, and not
defendant hit Scott. If serious bodily in
jury was inflicted on Scott, and if defend
ant knew that Hornburn was infiictiLg the
injury, and aided or encouraged him in the
commission thereof he would be responsible
for the natural and reasonable conse-
quences But If Hornburn intended to kill
Scott-but this intention was not known to
defendant-the latter would be responsible,
not for the secret intention of the other,
but for the reasonable consequences, viz,
the infection of serious bodily injury. and
hence of aggravated assault and battery.
The proof fails TO show that defendant
knew that the other intended to kill Scott.
No evidence that he aided or encouraged
him. Reversed and remanded. Opinion
by Hurt j. Saunders. & Dunett for ap-
pellant.
A. L. Love VS.. the Gulf, Colorado and
Santa Fe Railway Co; appeal from Tarrant
county. The court did not err in sustain
ing the demurrer to the two items of dam
a11I ha p4h nf
captions having been sustained, the amount
in controversy was reduced to S13S, an
amount below the jurisdiction of the county
court and the said court did not err in
Diminishing the case from the docket of that
court This case is affirmed without preju-
dice to plaintiffs below Affirmed without
written opinion James c. Scott for appel
liant. j. w. Terry and C.. r. Lee for ap-
pellee.
John Russell VS.. the State; from San
Saba couaty. Conviction for murder in the
second degree. The court did not err in
refusing the continuance. The diligence
was not sufficient, aud the evidence set out
in the application is not probably true when
viewed in the light of the statement of
facts certified in the record that is as to
the more material stated evidence expected
to be proved by such alleged absent wit
nesses. In so far as threats are concerned,
it is not alleged or claimed that they were
communicated 10 defendant and it is shown
BY the facts that deceased did not sleep
with Flood and could not therefore have
made threats against defendant while he