The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1877-04-19

y pdIlHSAShlp Gan DC CNl6QOeu DE Will
so as to continue after death of the
testator. q Parsons Cont, 5th edi.
ton, p. 200, note d..
Frank Lewis V. State Of Texas; appeal
from the criminal court of the city
of Paris, Lamar county. Opinion
by Judge Winkler.
Appellant was indicted for carving
a pistol under the law of April -,
1871, entitled can act to regulate the
keeping and bearing of deadly weap,
ons; !" one witness had seen defendan,
with q pistol in his hand" and an
other said he saw him with a pistol
beIted round him" Appellant was 6
traveller, and upon this fact, and the
construction given TO the law by the
court in the case of Maxwell V. The
State, 80 Tex. r. III, he relied for his
defense, but was convicted. HID
That this case differs from the case OF
Maxwell V. The State, as n that case
the defendant was carrying his pistol
in buggy, and that while the statute
expressly permits the carrying of a PTS
toll with his baggage by person tray
cling, yet that this does not justify car
rying it on his person. Judgment
affirmed.
Peak v. Blythe; appeal from Dallas
county. Opinion by NJ. D. Ector,
pres. judge.
1. Where a written contract is of
doubtful meaning it may be explained
by parol evidence, and if fraud or mis-
take is alleged or proven, it may be
contradlcted.
2. 1t is error to admit parol contem-
poraneous evidence to vary the terms
of a written instrument when the same
is plainly and mtelligibly stated.
Reversed and remanded.
Skidmore v. The State; appealed from
the criminal court of the city of
Mckinney. Opinion by c. NJ.
Winkler, judge.
1. A, who was under arrest, refused
to go along and pulled away from the
officer who had MIN in charge. B.
(the officer thereupon struck him on
the head with a six-shooter. Held,
That the officer was guilty of an ag-
gravated assault and battery.
2. An officer has the ight to use a
prisoner roughly, if necessary, in the
act of carrying him along, and to call
others to his aid; but he has no right
to beat him in order to make him go.
Judgment affirmed.
Bourgeois v. Barfeld; appealed from
Dallas county.
The judgment being for only 500,
exclusive of costs, the appeal is dis
missed for want of Jurisdiction.
Barley v. CASTOR; appealed from Dali
las county.
On motion of appellee the judgment
of the count below was affirmed on
certificate without damages.
Clark v. Williams; appealed from La
mar county.
Affirmed with damages.
Williams V. Troop ct a.; appeal from
Lamar county.
Appeal dismissed for want of suffi
cient appeal bond.
John II. Bingham v. The State of
Texas; appeal from the criminal dis
trict count of Collin county. Opin.
ion by M D. Ector, presiding judge.
Appellant was indicted for an aggra-
waited assault, tired and convicted of a
simple assault. He relied for his de-
tense upon plea of Gutre .t0iS cOn0ict,
and assigned as error the ruling of the
court below in excluding from the jury
the transcript from the mayors court
of the corporation of Mckinney, show
ing former conviction for the same
offense. The corporation of the city
of Mckinney was created under the
general law of January, 81, 1858, en-
titled can act to provide for the incor-
poration of towns and cities" which
act confers on mayors of towns incor-
porated Hereunder the same power
and jurisdiction, both civil and crimi-
nal, as is exercised by Justices of the
peace. Held, That the Constitution of
1869, art. 8, sec. 10, repealed so much
of all the general and special laws as
conferred upon mayors of incorporated
cities the Jurisdiction of justices of the
peace, citing Bigby v. The State,
A Texas R., 351, ard Holmes V. The
State, A Texas R., 631. However, the
court declined to decide the question
as to whether or not a conviction IN
der city ordinance is good plea in
bar of prosecution under the laws of
the State for the same act, it being an
offense against both, and it appearing
from the statement of facts in the
record that the assault was made con
the - day of 1877" The court
says: Looking then alone to the
statement of facts for the evidence, it
appears therefrom that the offense of
which defcndent was convicted was
barred before the Indictment was pre-
sented. The defendant was convicted
of simple assault. An Indictment
for simple assault must be presented
within one year from the commission
of the offense."
Judgment reversed and cause re-
handed.
Thomas H. Hays ct al. v. John NJ.
Bass ct al. appeal from Lamar coun-
ty. Opinlen by Judge White.
One branch of this case has been here
tofore appealed to the Supreme Court,
and may be found reported in 3S Tex.
R. 1913.
Bass brought an action of sequestra-
ton against James NJ. Hayes to recover
TWO mules and the value of their use.
Hays replevied with the appellants as
his sureties. The bond was condi-
Toned that the obligors ''would have
said mules, together with the hire, to
abide the decision of said court, or
will pay the value thereof, together
with the hire, in case the said suit
'hall be decided against him, the said
James N. Hays" Judgment was rem
Tered for plaintiff for the mules and
$3.50 against defendant and his sure
les. An execution was issued on this
Judgment after lapse of msre than
me year from its rendition (there hav-
ng been former executlon), against
which appellants obtained an injunc-
ion on the third of March, 1874, the
grounds of which were that on the de-
livery of the mules, they were bound
or nothing more, anSa! the bond 90 r"
Held, That by the terms of the bond
he sureties obligated themselves to
'ay and were bound for the value OF
he mules as ascertaiaed by the judg
nent, and that the injunction having
'een obtained more than yefr after
rendered, there being no al
egation to bring the case in any excep.
ion lof the statute, (Pas. Dig, Art
1911, was properly dissolved.
Judgment affirmed.
Parish ct al v. Wilder; appeal from
Lamar. Opinion by NJ. D. Ector,
pres. judge.
i. Where but one of the partners
vas cited, it was not necessary to al
eye that there was partnership prop