The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-12-02
COURT DECISIONS.
Syllabus of the Decisions of the Court of
Appeals.


While il is sought to establish claim of
title to personal property by virtue of bill
delivered with it by defendant on its sale,
the iTfrument itself was the best evidence
Of its contents, and States witness should
not be permitted to state the contents from
memory, Predicate of time, place and cir
cumstances of a statement made by prose
cutting witness, having been laid as basis
of showing the animus of the witness, and
in the event of denial, to introduce i'm
pcaChing testimony, the evidence was i'm
properly excluded 1t is error to refuse
the defendant time to prepare bills ofeX-
ception TO rulings, orders or decisions Of the
court, to which he excerpts, The State
having introduced the part of a converse
ton, 1t was error to refuse to allow the de-
PENDANT to prove-the whole of it bearing on
the same subject Penalty for the theft of
property under $50 in value is neces
sarily Imprisonment in the county
jail in any term not exceeding one year,
and during his term, hard labor may be i'm
posed and fine may be added not TO exceed
$500. Simple fine is not adequate under
the statute, Reversed and remanded.
White presiding justice.
Brumley VS.. State; from johnson county.
In transferring a misdemeanor case to the
County Court for trial it is required of the
District Clerk to send also transcript of
all the proceedings in the Dis
trict Court. The want of proper GER
tilicatc Of the Clerk Of the District
court of the transfer and proceedings may be
properly pleaded in the county court to de-
feat its Jurisdiction. Bad spelling will not
vitiate an indictment, and besides the word
spurious is idem sonans with "spiritu-
Gus" Reversed and remanded. White,
presiding justice.
Robertson II Herndon vs.. Weaver; from
Hopkins county. The evidence in this
case showing that if the appel
ants were entitled to recover at
all, they were entitled to
recover the full amount of $500, less credit
of $50, and the verdict being in their favor
weight of the evidence. Reversed and re-
manded White, presiding justice
Harris VS.. Credible; from Camp county.
A prerequisite to the perfection of an APP
peal from the Justice to the County Court
is notice Of appeal given in. open court at
the trial, and unless this notice of appeal
appears of record, motion to dismiss appeal
Is improperly overruled. See Texas Ct.
App, 462; Rev. SITS, Art. 1859. Reversed
and remanded. White, presiding justice.
klabtlisch VS.. Staiti; from Harrison coun-
ty. In suit for the recovery of an amount
OF an accepted draft given for goods pur-
chased before their receipt by their pur-
chaser, the measure of damages, on de-
Tense of failure of consideration, is the diff.
ference between the price paid for the
goods and the value of the goods in the
market when received. See EaSterly &
Sons VS.. Jones, decided at the present term
and reported in the Dallas HERALD, No
vember -, for general rule, on the question
OF the measure of damages. Reversed and
remanded. Winkler, judge.
Garrett e. Key VS.. City of Marshall from
Harrison county. The suit being upon
drafts against the city upon particular
fund, petition should have averred that it
had funds of that particular appropriation
And though the petition alleged that an
election had been held at which the city by
vote assumed charge of the public schools
as separate school district, It should have
shown that a subsequent election had
been held at which the prop
operty-holders elected to impose
necessary tax to sustain such schools Unless
the record discloses that the plaintiff de-
sired TO amend defective petition, the pre-
sumption obtains that he did not. De-
murrer for reasons assigned was properly
sustained. Affirmed. Winkler, Judge.
McKain VS.. State; fom Jasper county.
The prosecution in this case was for assault
with intent to kill one S. The testimony
disclosed clearly that the defendant
waylaid and shot said S. with shot.g,n
The objection is that the court findnr
the indictment had no authority 10 charge
on the question of aggravated assault
Held, that the court did not err, and the
charge properly defining the olansc of ac-
graVn'e3 assault, the judgment is affirmed.
b, Per C lriam.
Riyas VS.. the State, from Bexar county.
In prosecution for theft of horse, the
defendant asked the court to charge the
jury that iii the party found in recent pos.
session OF stolen property satisfies YOU that
he was in the matter acting for another who
assured him TINT the possession was
lawful, you are instructed that the pre-
sumption that arises from circumstances of
possession is overcome" was properly re-
fused rs embodying no correct principle of
law. The record is otherwise defective in
not presenting statement of facts or bills of
exception. Affirmed. White, presiding
justice.
Harris VS.. State; from Colorado county.
In this case, wherein the defendant was
prosecuted for theft of horse his appli.
cation for continuance admitted the taking
OF the animal, but set up that it was taken
for the purpose of riding to the county of
Washington on visit to relatives. Held
to constitute no defense, ami that the ar
plication was properly refused. The
evidence being sufficient to auStaf the YER
dict the Judgment is affirmed. White pre-
siding justice.
Hill VS., the State; from county. An
indictment for THEFT of horse may allegc
the property in any one
having the actual possession, manage
ment and control of the animal, even
though such person be not the actual
owner, Conviction based upon the unsup.
ported testimony of witness shown to be
grossly preiudiced, and who contradcted
and stultined himself cannot stand Re
yerscd and remanded, Hurt, Judge
Durley VS.. State; from Camp county.
The statute provides that statement of
facts may be drawn up and placed in the
record in criminal cases in the same man.
ncr rs in civil, and with reference to
these latter, II may he done in vacation by
order of the court and spread on the MN.
utes not more than ten days after adjourn
ment, Statement of facts in this case an.
pear filed in vacation, and no such order is
brought up in the record Bill of cxccp.
tons filed in term time, signed by tho
Judge, rccitcs that the State proved no
venue, did not prove that the oilensc was
committed in the State of Texas or county
of Camp, or that defendant was an adult
male. Reversed and remundcd. Wnklcr
Judge.
Hurst VS.. State; from Cooke county. In
this case the defense rested upon an alibi
but the defendant was recognized by three
witnesses, and the jury are charged to PASS
upon conflicts of evidence In the lirht of
the evidence 1t is not probable that tho
testimony for which the continuance wns