The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1877-05-03
Synopsis OF Decisions i'll the Court
of Appeals.
REPORTED BY JOHN C. RANDOLPH AM
A. II. COLEMAN.

State of Texas; appeal from Park
er. Opinion by Judge White.
Appellants were indicted for an ag
gravated assault and battery, and put
in special pleas, the one of autre .t0iS
acquit, and the other autre .t0iS cORUict,
for same offense, before justice of the
peace. The court below submitted the
special pleas to the jury with instruc-
tions that in case they found defend
ants not guilty of an aggravated assault,
then to pass upon the truth of the
special pleas. The jury found defend
ants guilty of aggravated assault and
assessed the fine at 800 each. Held,
That this was in accordance with the
rules of practice established by the de-
cisions of our Supreme Court. Morton
v. The State, IA Tex, 307; Borgess. v.
The State, 43 Tex, 347.)
Judgment affirmed.
John Haynes v. The State; appeal
from Lamar. Opinion by John P.
White, J.
1. The defendant was charged with
| having committed an assault with in
tent to murder, and was found guilty
of an aggravated assault. Held, that
he cannot complain of the instruction
given with reference to the charge of
his having committed an assault with
intent to murder, he having been con-
victed of lower offense.
2. In misdemeanor eases, where the
defendant fails to except to the charge
Of the court at the time of the trial,
this court will not reverse the case IN
less the defect in the courts charge is
such a radical defect as that it might
be said to amount to no charge appli-
cable to the facts of the case.
Affirmed.
Henderson v. The State appeal from
criminal court of Bonham. Opinion
by Winkler, j.
l. Where the Indictment charges
two separate offenses, and but one of
the charges be sufficiently set out, the
other which is set out in a defective
manner will be treated as surplusage.
Estate v. Dorsett, 81 Texas, 656, and
A Texas, 49,
2. Where an Indictment embraces
more than one count, part good and
part bad, and general verdict of gull
ty be rendered, judgment will be en-
tered notwithstanding the defective
counts, the law indulging in favor of
the verdict the presumption that it was
rendered upon the good count. (King
v. The State, 10 Texas, 2S2, and author
tiles therein cited
a Affirmed.
Stone v. The State; appeal from TRAY
is. Opinion by Winkler, ].
This case was dismissed on motion
of the Attorney General because the
transcript was not made in compliance
with article 62O1, P. D., vol 3. III
Tex. 2S5; 0 Tex. 436.)
Dismissed.
Trevinie v. The State; appeal from
Live Oak. Opinion by Winkler, j.
1. Where the statement of facts Is
not certified and signed by the judge
of the court before whom the tria |
took place it cannot be considered for
any purpose whatever. Brooks v.
The State, decided at Galveston term,
1877, and authorities there cited)
- -r..- Affirmed.
Scott v. Teah ct al error from Dallas.
Opinion by White, ].
"Be it remembered that on this day
aPpCdlCu a. uSGuI
or the plaintiff in the above entitled
cause, who, after being sworn upon his
oath, states that the accounts filed in
this cause against defendants are Just
and correct, due, owing and unpaid.
''Signed. A. TEAH."
This affidavit was made before
notary public to an account attached |
to the petition. tits sufficient.
1t is not error in a civil suit to
charge the jury that the burden of
proof is on the plaintiff and that they
must ind in favor of the party in
whose favor the evidence preponder-
ates.
Affirmed.
No. 391-Lebermsn V. Hill & Co. f.; APP
peal from Grayson. Opinion by |
White, J.
1. The recital of the judgment is,
"And the court having heard and fully |
understood the pleadings and evidence |
herein, 1t is considered" etc. Held, |
that this recital is conclusive against |
the objection that "the Judgment was |
rendered by default when there was an |
answer of defendants on file" and in |
the absence of anything appearing to
the contrary every presumption will be |
INDUCED in favor of the correctness of
the judgment.
3. Where the judgment is excessive
il can be cured by q remittitur being
filed in this court.
No. 392-Lebermsn v. Hill & Co. /; APP
peal from Grayson. Opinion by
White, ].
This case was disposed of on the
same grounds as the above case of the
same style.
Affirmed.
No. SQS-Leberman V. Hill & Co. ap-
peal from Grayson- Opinion by
White, J.
Affirmed on same ground as both
the above cases of same style.
There Is as much healthful and
Strengthening exercise in black
smith shop As in boat rowing. and the
Milwaukee SeHtisei suggests that black