Fort Worth Daily Gazette from Fort Worth, Texas • Page 5

THE HIGHER COURTS Decisions Rendered at the Present Austin Sitting THE COMMISSION OF APPEALS I he Court ofAppeals lion John TYliHe rrridlng Judge SI Hurt and AV I Davidson Associate Judges 1 Walton Clerk Court of Appeals Henry Epsom vs the State fiom Hill Burglary 1 Appellant was found in pos sesion of a pistol identified as proceeds of he burglary the pistol beinp left with one fields at a saloon The appellant sought to prove by the witness Fields who had al fid testified to facts above set forth that ivhen he loft the pistol with witness he drt him to deliver it to Ed Coley after lie oiey i became sober providing the latter tii for it and also that he never claimed nvaership over said pistol or exercised any jot of ownership over the pistoL Held In netr of the fact that appellant proved that roley dropped the pistol on the platform iiid appellant picked it up and went off towards town and left it at the saloon wo think the court erred in refusing to admit ih testimony sought to he introduced by appellant The state showed the act of ejving the pistol at the saloon and the evidence was explanatory of that act Reversed and remanded Davidson Joe natter vs the State from Madison Assault to murder 1 The state was prop siij permitted to prove that on the evening of he assault appellant in the presence of mo witnesses remarked that he was going tret that much of Hardshell fat tioldm the blade of his knife in his hand bprifj shown that the family of the as aulted party were the only members of lie Hardshell Baptist church In the neigh oorhood It tended to show malice and ujs admissible 2 The court in stating he penalty stated It to be not less than wo more than seven years leaving out he ttord nor etween the words two and more Held The verdict was for years and we do not think the jury ould have been misled The omitted word nnr was easily supplied from the con ex No error Affirmed Davidson Joic Maria Mender vs the State from vji A erde Murder in the first decree ith death penalty assessed 1 There is error in the charge of the court stating hat all murder committed with express ial ico is murder of the first degree and murder committed in the perpetration of olibcry is also murder of the first degree md this though the indictment did not harpe murder committed in the perpetra on of robbery but charged murder on ex pies malice Murder in the perpetration if robbery is per se murder of the first de ziec 11 A pp 100 17 Apn isfi A pp si The evidence sufficiently shows murder in the perpetration of robbery 2 The tato had a riirht to recall appellant as a witness ho having previously testified in ti own behalf By testifying a deleudant irjivpstho protection thrown around him isuci bv the bill of rights and the law tad assumes the attitude place and liahili attaching to him as a witness the samo us any other witness Quintano vs State 16 App Affirmed Davidson Sam Hooper vs the State from Shelby Vsault to murder 1 A continuance was properly refused on the ground of the absence of a witness whoso evidence was not pobnbly true and especially in view of the jet that the facts soucht to be established bi him wero abundantly proven by others on tie trial 2 I beinsr Emancipation day jnd the car being crowded with negroes raising much noise and disturbance the timouj or a witness thit ho remarked at lie time of the difficulty that such conduct is intolerable could not have injured ppellant 3 The chatpe when construed is i wholo sufficiently submitted the issue specific intent to kilL Affirmed Djvid on 1 Uick Duncan vs the State from Maver Murder in the fir degree with the Jejih penalty assessed 1 The applicant for continuance was properly over uied Appellant proposed to prove by Howard sheriff of San Saba county who was absent that ho voluntarily surrenu i ed when accused of the murder and that nts reputation in Kan Saba county was od It was an undisputed fact that a wllant voluntarily surrendered His eihuors from San Salu county who knew dupedant were placed on the stand and ho the opportunity of proving his good haiaetcr by them The absent testimony the witnesses Bryan Miller anil Jolni Mm to the effect that they saw appellant i the western portion of Edwards county the 21st of February is directly contra di ed by the father and brother of ap pelant who swore that at said timo he was rth them In Mexico The proposed absent testimony of the same witnesses that hi saw tho Williamson family about the jme time is equally as improbable and i rue 2 The issues presented by the requested instruction were duly submitted in the main charge of tho court The evidence supports the conviction Api el ant attempts to explain hero he obtained some of the property found in his posses ion Ho no placo explains or attempts do So whore ho obtained the bed or suitress found in his possession Xo motive is shown but the evidence is con jsiie that appellant acting with others i irdered tho Williamson family Af tiraied White Simon Agar vs the State from Hopkins On rehearing 1 On a former day this eause was dismissed because no final judgment was shown by the record It is now mov by a certified copy that tho record w13 erroneous and that there was a final jdtnent The dismissal is set aside and uiua jelustated 2 The matter assigned a perjury in this case is that defendant ejtihod as a witness before tho grand jury lat ha did not at a timo and place speci iled say and state to one Gilbert and one lohnson that he knew some of the i er icns vtho struck said Henry Chase in Hop ins county Tev on the night of the 24th iia of December 18C0 Other essential illegatlons we re contained in tho indictment Held A conviction for perjury can iot be sustained where there is no other ev dence except proof of the talcing of tho ojih the giving of the cvidenceupon which perjury is assigned followed by proof that xt other times the prisoner when not under oath made statements the legal effect of thlch was to contradict his statements under oath Brooks vs State decided present term The Indictment does not setout matter which is material on an assignment for perjuryand the evidence does not lupport the verdict Kbverscd and dismissed White Archie Washington vs the State from Orange Murder In first degree with life penalty 1 The overruling of an application for continuance will not bo con lidered in the absence of a bill of exceptions saved to the ruling 2 The court failed to define in his charge the meaning jf the terms malice and malice aforethought This constitutes reversible cr lor 27 App 200 2S App 137 13 Rep CoOl Reversed and remanded White Bill Ainsworth vs the State from Trinity Murder in second degree 1 Tho court erred In overruling the application for continuance for want of tho testimony of Martha Reese There was a question as to the Identity of the man who did tho shooting and it was proposed to bo proved by the witness that she followed the man who did the shooting some distance under the impression that lie had shot her brother and for the purpose of identifying him On a former trial when a Jury heard this woman testify there was a mistrial Appellant should have tho benefit of her testimony 2 A charge of the court in a trial for murder which omits to defino malice and malice aforethought essential elements of murder is erroneous and such error is not cured by a definition of express aii inched malice f23 App 13727 App 200 13 Rep 650 manded White Reversed and re Milton Mays vs the State from Robertson Murder in second degree JL Tho court did not err in refusing requested instructions The charge as given was liberal toward appellant There was no self defense in the caser yet the court gave appellant the benefit of the defense and of manslaughter 2 There was no abandonment of the conflict on the part of appellant but on the contrary after the first difficulty he armed and secreted himself where deceased was to pass along and as ho did so appellant renewed the difficulty and shot and Mlled deceased as he walked away attempting also to fire at the party who was with deceased I It was not error to exclude the testimony that deceased had formerly cut another party with a knife Affirmed Per curiam Simon Ingram vs tho State from Gray son Rape with ninetynine years confinement 1 Two issues were presented by tho testimony an alibi and the identity of defendant Upon the first issue the evidence was directly conflicting This being true and tho evidence supporting the vor dict we cannot disturb tho judgment on that ground Tho evidence was also conflicting on the other issue The charge presented the law of the case Kb reversible error Affirmed Per curiam Guadaloupa I rma vs the State from Brewster Cattle theft 1 The charge on circumstantial evidence was sufficient If a more elaborate charge on that question was desired it should have been requested 2 The courts charge on the question of taking as embraced in the crimo of theft was sufficient 3 Tho ownership of tho property was sufficiently proven to be in Patterson tho foreman of tho Hereford cattle company He had cvclusive care control etc of the cattle aud testified that the brand and mark of tho stolen cattle were those of tho company There was no objection to this manner of proving the brand Motion for new trial properly refused Evidence sufficient Affirmed Per curiam CesariaLiero vs the State from Brew ster Cattle theft 1 Companion case to I rma vs State above The questions in the two cases arc the same savo in this case the speech of the district attorney was objected to The remarks of counsel for the state were proper being called forth by remarks of counsel for appellant The argument of the district attorney was doubtless called for by tho facts in the case Affirmed Per curiam Too Kay vs the State from Fannin Theft of property over 20 1 Application for continuance properly overruled Two of the witnesses were present and were not placed on the stand and the evidence of tho others was not probably true 2 It was discretionary with the court to permit tho recall of the witness Entill before the argument had closed to prove want of consent fl The theft of the goods was proven by the confessions of the parties in the presence of appellants aud they stated they had been induced to steal by him They also pleaded guilty The property was found at nppcljants house and in his ossession and part of the goods were in his manual possession when arrested 4 The question of reasonable explanation of recently stolen property was not in tho case Under the facts it would have been error to have hinged appellants guilt on such an issue Affirmed Per curiam SMartinez vs the State from Frio Murder in the second degree with fifty ears confinement in the penitentiary 1 The court did not err in refusing to quash the special venire 2 The court gave a full clear and explicit charge on tho law itj circumstancial evidence and hence is not error to refuse instructions on that issue 3 Tho evidence showed a murder that would have justified i much heavier punishment There was no error Af liimcd Per curiam Jim Widdows vs State from Hopkins Assault to murder 1 On the plea of insanity the charge of the court was full and specific 2 There was no evidence of aggravated assault Tho evidence shows a well formed and planned determination to commit murder On the defense of intoxication the court gave a much more favorable chargo to appellant than was required under the statute 4 The fact that tho deputy in charge of the jury was a nephew of the injured party is explained by the court and no injury is shown by appellant 5 Whiie the evidence is circumstantial it is quite sufficient to sustain the verdict ti A verdict arrived at by the jury by means of illegal methods which verdict was subsequently abandoned and a verdict reached iu a legal manner could not prejudice appellant Affirmed Per curiam Alfred Dehro vs the State from Lamar Forgery 1 Tho instrument was altered from a pecuniary obligation for one dollar to one calling for three dollars The apj el lant testified in substance that it was not changed when it came into his hands He testified that he could not write but witnesses testify that he could write and that they had seen him write The facts are circumstantial but exclude the idea of innocence and show beyond a reasonablo doubt appellant committed forgery The fnrgery could not have occurred except at tho connivance and with consent and parti ceps criminis of defendant with the party changing the instrument Affirmed Per curiam Hill Eley vs the State from Jones Burglary 1 Charge of tho court full and lair and favorable to appellant 2 Evidence supports conviction Appellant was found in possession of a gun comb and scissors stolen from tho burglarized premises He gave an explanation of his possession of the gun but not as to other articles Affirmed Icr curiam Frank Chester vs the State from Hop kins Theft of cattle 1 Special charges asked aud refused in so far as they are the law were given by the court in the general charge The charge as civen presented the law applicable to the facts adduced Tso reversible error Affirmed Per cur iamChristoval Christoval Marques vs the State from El Paso On motion to dismiss appeal 1 Appellant was charged with aggravated assault and convicted of simple assault Tito recognizance recites that he was convicted of aggravated assault Held The appeal musVbe dismissed So ordered Per cur lam I Xewsom vs the State from Jones Aggravated assault 1 The information i a valid one and tho facts are sufficient to sustain the conviction Xo reversible error Affirmed Per curiam Commission of Appeals snenox A Hon Edwin Hobby Collard and Marr Associate Judges Morse Clerk Virginia James et al vs Margaret James et ah from Grayson Suit by pellces to recover certain property alleged to be theirs 1 The court did not err in excluding the evidence of Virginia James to the effect that George James deceased had placed certain bank shares in her hands and said he wanted her and the children to havo them Such testimony was admissible ueithcr for her nor her codefendants 2245J Xo bylaw of tho bank was in evidence to show that such a deli very would pass ownership to the stock 2 The doctrine in our state is that in the absence of anything showing that a different construction Is to be given it a foreign Judgment is held to have the same legal effect as if rendered here 50 Tex 561 3 It is manifest that from tho judgment verdict of the jury and decree of the supreme court of the Chickasaw Nation the validity of the nuncupative wilt of George James and Loves appointment as administrator wero tho only issues involved in the suit in the Chickasaw Nation On these points tfho will was re adjudieata 4 In the absence of proof of the laws of the Chickasaw Na tion tho courts of this state will presume they are tho snio as iu Tesa fl Ti 232 The evidence supports the verdic Affirmed Hobby City of San Antonio vs Sallie RoyaUt fromjexar 1 January 11JS7 appollauf through the market master leased appellee a stall in the city market Appellee had possession until March when she wqrij ousted from possession and her fuvnltureT Sifarcs etc ssized She loosed tea stall IBE GAZETTE FT WOET TEM SATDRDAY JUK 20 for one year and punctually paid the rent The jury gave anrerdict iu favor of appellee forfc 00 Held If the renting uf the stall was not in strict compliance with the city ordinance still appellee was not a trespasser There was no error in rendering Judgment for 500 for appellee and also for tho property Evidence of loss of profits amounted to more than tliis Affirmed Hobby Western Union Telegraph Company vs Stevens from Cooke 1 Appelleo had cattle near Mcndota Indian Territory in chargo of an agent He had Instructed the agent to ship to Chicago by a given date Before said date the prico of cattle became very depreciated and appellee sent his agent a telegram countermanding his former orders and telling him nofto ship on account of low prices This telegram was never delivered and the agent sent tho cattle to Chicago where on account of tho low market appellee sustained a loss of 5450 per head It was shown that prices were no better during the year Held Appellant is responsible for the damage incurred by appellee The loss was caused through negligence of appsllant There is no error Affirmed Hobby A Stewart et ah vs Owen Morrison et al from La Salle Suit by appellees on administrators bond 1 When the probate court has passed all the orders that can be made in that court upon tho subject of the administrators final liability to the heirs and orders the amount found to be due be paid to them no other Judgment ci required of that court The duty of the administrator is plain ho must pay tho heirs as directed by the judgment and if he refuses to do so on demand he violates his trust and becomes liable on his bond The suit was projierly brought on the bond in the district court 2049 2 The suit was properly brought in the county of the residence of the sureties on the bond Affirmed Collard Abernethy vs Mary A Stone from Falls 1 When a certificate is conveyed before it is located and the land is patented in the name of tho grautee of tho certificate it would seem that tho assignee obtains only the equitable title in the land by virtue of the transfer and the legal title though inferior to the equitable title of the assignee rests in the grantee by reason of the location and patent from the state to him 52 Tex 8P3 50 Tex 174 71 Tex 51 Appellants demand was stale Affirmed Marr 7 Missouri Pacific Railway vs Cul lars from Grayson Suit by appellee to recover for various articles alleged to have been burned by appellant on his place in tho Indian Territory 1 Tho Indian Block having transferred his interest in tho property burned to appellee tho latter was entitled to sue and recover therefor 2 It must now be regarded as tho settled law of this state in harmony with the rule of tho common law that an action or remedy for injuries done to land situated beyond the territorial limits of this state and when no part of the act resulting in tho injury was committed or performed within the state is purely local and can not be maintained in any court of this stito but the enforcement of the remedy such cases must be had within the jurisdiction where the land is situated 7S Tex 17 The court below should have submitted to tho Jury for their determination the question as to whether the buildings destroyed wero apart of the real estate IS As to whether the buildings destroyed were a part of the realty was a mixed question of law and fact and should have been presented to the jury for determination 4 Tho Indian Block had the right to transfer to appellee whatever right he may Have had in the property destroyed 70 Ind 25 lAVash Ter 325 5 Evidence for appellee as to the origin of the fire showed that one witness three hours after the fire began traced the fire to its starting jmint same being on the right of way of appellant about fifteen feet from tho track On the other hand appellant proved that the engine passing at tho time of tho lire had the most approved appliances to prevent the escape of fire that same were in good working older and that at tho i oiut where it wi claimed the fire originated was a downgrade and that the engines ran of their own momentum aud that they could not emit sparks under such circumstances Held The evidence is not sufficient to support the verdict Reversed and remanded Marr 1 A Gazley and wife vs Herring et al from McLennan Trespass to try title 1 The only question in this case is as to whether the conveyance held by appellant to the land in controversy Is au absolute deed or only a mortgage The evidence shows that appellees repeatedly refused to take a mortgage on the ground that it would not be worth the paper it was written on because the land was homestead property The deed is absolute on its face It was conveyed to appellees in full settlement of a fee owing them bv Gazley for defending him in a criminal suit By tho execution and delivery of tho deed the relation of debtor and creditor was finally terminated between the parties AVhile tho evidence is conflicting it sustains the finding that tho deed to ap pellees as made by appellants to appellees was a deed absolute Affirmed ManvT Fleming ct al vs Elizabeth Gib oney from HaskolL Trespass to try title by appellee 1 A certificate was issued in the name of John Gibney The namo of tho grantee who actually received the certificate was John Giboney Held Gibney and Giboney areidcm sonans 2 The recitation of the certificate that Giboney was a single man and resided in Texas on March 2 lS3y is conclusive of both facts 3 While there is some conflict in the evidence as to the identity of Giboney thoevi dence is reasonably conclusive that John Gibney to whom tho certificate was granted and John Giboney deceased husband of appellee is one and the same person Affirmed Marr George Allen guardian vs Louisa Von Rosenberg etal from Bastrop The father of Louisa Von Rosenberg apnclleo herein died leaving a will in which was devised to the latter tho land in controversy The father Rhode left his community estate to his wife she being constituted independent executor with power to settlo all claims etc against the estate without tho Intervention of a court Tho wife of Rhode was appointed guardian of appellee Louisa An inventory of property was returned embracing the land in controversy While the guardianship was still pending certain creditors of Rhode came into the district court and ask a divestiture from said Louisa of tho title to said land to satisfy certain debts against Rhpdes estate Louisa the wife of Rhode and her husband she having remarried were mada parties On hearing the court divested ap pellee Louisa of her title to the land and appointing a trustee directed him to sell tho land to satisfy debts against the Rhode estate Appellants claim through parties who purchased at the sale by the trustee Appellee Joined by her husband claims through devise by her father Rhode She instituted this suit and recovered judgment for the land Held The superior title is in appellee The proceeding in the district court attempting to divest appellee of her title was a nullity The property being under tho control or tho probate court could not be reached by such a proceeding in the district court The proceeding in the district court was a usurpation of the powers and jurisdiction of tho probate court Tho devise to appellee it is true was subject to the debts of her father Her title could have been diverted from her by a sale by the oxecutrix of her fathers will or by a proper proceeding charging it with tho payment of the debt Such proceedings were not taken and ap pellees title remains unimpaired No error Affirmed Hobby TEXASBREWINGP Fort Worth Texas brewers and BOTTijB Ht OneHalf Price GERfBEER Special Brews SPATENBRAU STANDARD TELEPHONEOFFICE No254 1 BEER ICE Vault No 326 Order for BEER and ICE iu carloads or le quantity promptly attended to MACHINE TESTIMONIALS DELIGHTED WITH IT TULIA Tex May HENRY UIHkEiM irTesaenr EE5BEEB BEAUDS BUDWEISER PILSENER WIENER ERLAKGER CULMBACHER SCHLUZBRlU 1891 Democrat Pub Co Fort Vorth Tex Gents I have one of your HighArm premium sowing machines My wife i delighted with it It is neat well finished light running and gives entira itfaction I like it better than anything I have had ottered at from S3 to 13 Respectfully Faulkner AS GOOD AS ANY 50 MACHINE DeKalb Tex May 10 IS91 Fort Worth Gazette I received your HighArm premium sewing machine We have tried it thoroughly and lind it first class It is a good a machine as tho people have been paying 50 for There is no humbug about it Respectfully i Rear SATISFIED AFTER THOROUGH TEST ass Joshua Johnson Co Tex May 10JUJfll5p Democrat Pub Co Fort Worth Texr JfiisF Gentlemen I received the HighArm premium sewino DjgiBnsin good order My wife has given it a thorough test she fhitlf Jf iffi rTi rrtliiti represented and i well pleased with it i will saytojjjiflatwant a good machine subscribe for the Weekly Gazette and ejg miim machine The paper is just splendid Yours respectfullv 6p Flack AT IS CLAIMED FOR IT Box 65 Vdknon Tex March 2 1391 Democrat fflflKECo Fort Worth Tex GENTMgjjjI The Kb 4 HighArm premium sowing machine was received in SM Beruev and rny wife finds it to be all jou claim for it and is quite satisfied is equal to any other machine of twice the price you ask for this one he case too is exceedinglv handsome and very well finished I am vours truly MOURAXT AS HEAR PERFECTION AS POSSIBLE Flatonia Tex May 13 1891 The Gazette Fort Worth Tex The machine received in good order and is pronounced a jewel by myself and neighbors It Li as near perfection as it is possible for anything to be In fact only one fault could be found and that is the thread post is too short Yours respectfully MRS A HANOVER FIRST CLASS IN ALL To the Fort Worth Gazette RESPECTS TrjLiA Tex May 5 1S91 Gentlemen The HighArm sewing machine is all you claim for it It is first class in every respect It is as good as ono my son paid S37 for on the same day I received it No one can be dissatisfied witli it at the price paid for it Trujy yours A Scott WELL PLEASED WITH IT Tolosa KAursiAN County Tex April 201891 To the Gazette Sir My machine arrived in due time and is all or more than you recommended Mv wife is well pleased with tho worki that it does Your respectfully PITTMaN WELL PLEASED WITH IT Roanoke Tex May 211891 The Democrat Pub Co Fort Worth Tex Sirs I received the HighArm premium sewing machine in due time and am well pleased with it It does excellent work and is a noveltv of cheapness Yours respectfully Mrs Reynolds HighArm Singer the Finest and Best Made Machine of the Singer Pattern in the Market Manufactured for the Gazette S20 TO 25 CAN BE SAVED SAVEDHowe Howe Tex May 12 ISJI Democrat Publishing Company Fort Worth Tex Dear Sir In answer to yours of recent date in regard to sewiug machimr bought of you can recommend the machine As to work it does equal to an highpriced and is neatly finished runs light and wc can recommend the niaj chine to all those in need of a good machine You can save 20 to Sil by one ol hese machines and you will be well pleased with vour bargain Yours trul Vi Howe Tex Box 11 A MARVEL August UBMkfcite secretary AUKE Mhtftfiu uinuKM ouRertiSiSSiacnt OTTLEDBEEBBEAN153i PILSENER EXTRAPALE EXTRASTOUT SCHLITZPORTER ANNUAL CAPACITY ONE MILLION BARRELS OF BEER SchlHz Seer is sold the World over and has a worfdmde reputation for being the best it is warranted to be pure wfioesam and palatable and brewed from tin choicest Hope and BarkyMalt rTf AJPIIjY TO OASHW SWASEY PORT WOISISX rjiin3CAfiL 4 With eh of these machines we furnish 1 ruffler 1 tucker 1 et hemmers 1 foot hen Imer 1 sc driver 1 oil can and oil 1 fwupe 1 guugo thumb screw 1 extra throat plata 1 extra check spring 1 paper needles 6 bobbins and 1 instruction book These article are all included It the price named The New and Greatly Improved Bear in Mind that These Machines are Thoroughlv Made and of FirstClass Workmanship 61 FOR ONLY 24 70 FOR ONLY 331 OUR OFFER To every mail subscriber of Tue Scxdat Gazette we will senc the HighArm Improved Singer and paper one year for iio and to every mail subscriber of Jie Daily Gazette we will send the HighArm Improved Singer and paper one year for 43a or Daily six months and the machine for SSS GO purchasers pay freight Weekly Gazette one year and machine Every machina warranted for five yeara Address all orders and remittances to GAZETTE Fort Worth Texas ar MW.