Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-04-16

NsAANNhAfnH VI IL AAhNGIluOn. III any mar
tlcular beer or kegs Of beer had been
idcnuhed or agreed upon bv Tie
parties to the sale. then we would hold
that the sale was made at Clarendon.
II not the sale would not be completed
untli aenNery or the particular beer
was designated. Reversed and ro.
manded' Opinion by Hurt. p. j.
Roger Biain VS.. state-Apneai from
Honzales' Murder. There was no er-
ror IN excluding the Testimony OF Or
McCaleb as to his expert opinion Of the
position Of the ann OF deceased at the
time Of receiving the stab civilians
cuse' ~ y a., iil) The question has
been several times passed upou by the
courts OF this state. Appellant com.
pains that the court erred In admit
ting evidence OF threats made by loo
Slain against deceased before the com
spltacy was formed and I'm the absence
or appellant II is settled law that a
conspiracy cannot be proven. nor Gun
any one be connected with a conspiracy
by the declaration or acts Of another
made or done In his absence outside
OF such acts or declarations there must
De proofs of the conspiracy ITSELF, and
then to be admissible they must relate
10 ana be In furthernnce Of the COM
mon design and must he made during
tho existence OF the conspiracy. Rut
when the evidence makes prima
tacie case Of conspiracy then the
jury can look to such declarations and
acts as are admissible to ascertain the
existence Of the common design and
relation Of the parties to the conepl-
racy. tSpies case, 122 H. 1929 The
necessity for strict application Of
these rules Is obvious IN al cases where
the charge is for conspiracy as a sub
siantlve crime, or when the existence
OF the conspiracy is the question at
is''ue. But where the conspiracy Is
shown beyond question by the parties
being present and acting together the
rules have not the same force, as the
question is as to completely in the
crime rather than in the conspiracy
that led to It. Sull. even in cases
where The conspiracy is the ISSUE the
time when the conspiracy WAS first
formed is frequently question OF fact
that must be left to the jury. under
proper Instructions. Thus in this case
II does not appear that the acts and
declarations complained Of did In fact
transpire before the conspiracy was
formed.
Barber was killed by Joe Blaln on
August 81, 1891 Two years before this
there was much animosity existing on
the part Of the Blains against Barber
In January, 1889, Joe BlHin declared in
the presence OF appellant that he was
going to kill Barber, calling him names.
In January. 1890, while Joe Blain was
In the penitentinry, appellant stated
that he and John Blain would do up
Barber n they ever got chance. Some
two months after Joe Blain returned
from the penitcntiary he and Barber
had a difficulty IN which the latter
was cut and subsequently Joe Blain
made repeated threats to kill Barber.
The fact that Joe stated that he him
self intended to kill Barber does not
rrnf1ffnFg 10 tho ftanfsaH Of
acy, for 1t was the threat actually
carved out with the concurrence and
presence OF appellant II seems al
they wanted was al opportunity, and
ths was supplied by Askey. He met
Barber AT a saloon on the day OF the
homicide. and charged him with hav-
ing threatened to whip him. Barber
denied. AsSey went OF 10 bring his
informant, and was shortly after seen
talking with appellant, who called
Joe to them, and after an interview OF
a few moments they separated. armed
themselves and repaired to a saloon,
Joe Bla!n telling them to go to the
place where Barber was and he would
get his pistol and come there and Kill
him. Joe rode away to get pistol
and the others secured pistols and
Joined him at the place of the homi-
eide. They first tried to induce Barber
to meet them In the back yard, De-
ceased declined TO go out unarmed and
attempted to get hold Of a Winchester
IN the room. and was shot down by
Joe Blain, appellant and Askey stand
ing by. Barber. ms he was lying on
the floor. attempted to raise his gun.
when appellant stepped forward and
placed his foot upon IL.
II Is held that the facts clearly show
a conspiracy; that appellant and his
co-conspirators We're all acting together
In the preparation for She murder
which, upon the Same evening was
continuously carried into effect. and APP
pellant was principal. If a principal
no prior threats can add force 10 the
facts OF deliberate preparation for and
execution Of the formed design, The
court did not err In the admission OF the
threats OF Joe Blain. 1. Because it did
not appear they were I'm fact made be-
fore the conspiracy was formed. 2.
Because their admission. II erroneous,
would be harmless, appellant being
shown to be a principal 3. Because
admissible to rebut the theory Of sud-
den killing In self defense and show
the actual PURPOSE ot Joe blain. in
(which, by other evidence, appellant "a
Nhown To have concurred. Affirmed.
opinion by slmklns. j.
]. +. Isaaos VS.. State-Appeal from
Ilano: Indictment for rape and con-
..l.4f.., f.- a.s,ro t.,d uugatt1t NNbau