The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1877-05-17
synopsis of Decisions In the Court
of Appeals.
REPORTED BY JOHN C. RANDOLPH AND
A. r. COLEMAN.


Thomas Bertrong v. The State of Texas :;
appeal from Coryell. Opinion by
White, j.
Upon an indictment for murder APP
pellant was tried and convicted of
negligent homicide of one David Rog
ers, and his punishment affixed at a
fine of five hundred dollars.
There is no statement of facts, and
the grounds of the motion for a new
trial are: FIrst-That the court erred
in its rulings in refusing charges
asked concerning dying declarations {;
and, Second-That the verdict of the
jury is contrary to the law and the evil
dence.
Held, That it is impossible to deter
mine without a statement of facts
whether or not the court should have
instructed the jury with re gard to dy-
ing declarations as requested by the
defendant, and that, in the absence of
the statement of facts, the charge of
the court will not be revised, if under
any statement of facts such charge
would have been correct. Branch v.
The State, Austin Term 1875; Brooks
v. State and FULLY v. State, Galveston
Term 1876.
In the absence of a statement of
facts, this court will not consider Il
motion for a new trial based upon the
facts of the case. Judgment affirmed.
Jasper Merritt v. The State of Texas
appeal from Medina. Opinion by
I lEctor, P. j.
Appellant was indicted, tried and
convicted of stealing a gelding, and
assigns as error the ruling of the court
in over-ruling his motion for a con-
tlnuance. The motion was in regular
form for first continuance, on &C
count of the absence of material wit
nesses, and on its presentation the court
below allowed the sheriff to state factt
within his knowledge to show thas
such witnesses were absent by procure
ment of tie defendsnt-thisw without
the sheriff being sworn-and on TINS
statement the court over-ruled the mo-
| ton for a continuance. Held, that the
motion being in strict compliance with
the statute, the defendant was entitled
to continuance as matter of right,
and that even under the common law
practice, where affidavits were admitted
to contradict the grounds of the mo,
ton, that an officer of the court was nc
exception to the rule, and his state
ment must be in the form of counter
affidavit. For the error in overriding
| the motion for a continuance the judg-
ment is reversed and the cause re,
manded.
Caroline Dowell ". Ellen Vititoe ct al
appeal from Grayson county. Opin,
ion by White, j.
Two promissory notes were sued on
IN this case; one due March 1. 1861 !;
and the other due March 1, 1862; pc
titlon was filed March 80, 1874. The
statute of limitation was presented by
special exception, filed by defendants,
and the ground of exception was ''be-
cause the suit was not brought within
four years after the accrual of the right
| of action on the notes sued on" This
exception was sustained by the court
below and Judgment rendered for de-
PENDANTS. Article IL, section 43, of the
constitution of lS69-70, provides for
a suspension of statute of limitation In
civil suits until its adoption by the
United States Congress which was on
the thirtieth of March, 1870. This
suit was brought exactly four years
after the Constitution was adopted by
Congress. Had the four years expired
in which the suit could be brought r.
1T seems to be we'll settled rule that
in the computation of time from an
act done, the day on which the act is
done is TO be excluded. (27 Ala, 311
10 No., GO; 10 Conn.,, $50; 10 Mich,
1856; Burr V. Lewis, 6 Tex, &c. "
I'm construction OF statutory provis.
ions both in New York and Kentucky,
it has been held that in computing
time given by statute both the first
and last days are never reckoned in.
elusive. Is Cowen, $50; 4 I. B. Mon,
464.O at must be clearly apparent
that the main intention of the trainers
of the Constitution in incorporating
this provision (section 4S of article IL
into the organic law was to benefit anC
confer additional rights upon credi-
tors" Held, that the statute of limi-
tation did not commence to run in thii
case until March 81, 1870. Because o
the error of the court below sustaining
the plea of limitation, the judgment il
reversed and the cause remanded.