The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-05-19
COURT DECISIONS.



Synopsis Orsupreme Court Opinions
Throckmorton vs.. Davenport; error from
--- couuty. The field notes OF the
land sued for as given in plaintiffs petition
differ materially from the field notes set Out
in the judgment The effect Of the change
is that very considerable part of the land
adiudged TO plaintiff 10 land not claimed in
his pleadings. II is manifest error to render
in favor of plaintiff Il judgment not author
izsd by the allegations or prayer OF his petit
ton, and as this error is embraced amongst
those assigned, it entities plaintiff In error 10
a reversal of tho judgment. Tex. 800. Re-
versed and remanded. Gould, j.
L.ssing vs. Cunningham 81 Hardee; error
from San Saba. Suit TO enforce mechanics
! lien under p. D. Art. 7112. Jury having
been waived, personal judgment against Les.
sing was rendered for $40, and the machan-
les lien OH building and lot enforced and sale
ordered The judgment recited that "execu'
ton may issue according to law, on or after
the expiration of hundred days from the
adjournment OF the present term OF this
court, and not before. The above decree is
rendered by agreement of parties" The legal
effect of this recital was to make the jJdg
ment one by consent. % Tex. 276. This
was waiver of all errors except q funda-
mental error, which would 60 to the jurisdic-
ton of the court, the latter being such
error as could not be waived, even by consent
26 Tex. 348 The District court had juris.
diction over case involving the question OF
a mechanics .lien the petition sought the
enforcement of such lien; the Judgment
recites that evidence of such lien was shown
upon the trial the judgment was entered by
consent and thereby Leasing had the benefit
of stay of execution; uuder the case as thus
presented it does not appear but that the
court had jurisdiction. and the judgment
below is accordingly affirmed. Bonner, j.
synopsis of Opinions of Court OF
| Appeals.
Saunders We. the state; from Erath. APP
pellant was charged in the lower court, by
Indictment with theft 1t is rected in the
Judgment tha-the defendant pleaded guilty.
In his Instructions to the jury the judge tells
them that the defendant shaving entered the
plea Of guilty, you will by your verdict find
him guilty and assess his punishment at con-
finement in the penitentiary not less than
two nor more than ten years" Defendant
was found guilty and his punishment assessed
at two years. In his motion for new trial
onu vi mis- grounds relied on was that the
Judge failed to admonish him of the conse-
quences of pleading guilty, etc. Ii the
+ defendant plead guilty he shall be admonished
by the court of the consequences; and no
such plea shall be received, unless it plainly
appears that he is sane, etc. Art. lib O G..
4 rn,l 60 ohA hat al
of guilty was pleaded in conformity with the
re requirements OF the statute, and the judg
ment is therefore reversed and remanded.
White, 2. j.
Marks vs. the ate; appeal from Guada.
lupe. The recital liz the judgment is that
the defendant being arrsigned plead not
guilty, "whereupon came jury of good and
lawful men, to-w wit: p. III. EbHer, who were
duly elected, impannelled, etc. Defendant
appears to have been tried by a jury COM
posed of one juror. We might naturally
indulge the presumption that five other
jurors were impanneled, ETC., but we are not
authorized to presume anything which the
record is required to show, and it is required to
show that when one accused of crime is tried
by a jury the jury was legal one. Rich VS.
state, Texas ct. app. FOG; Huebnor VS. state,
Texas ct. app. 458. Because it appears
from the record that appellant was not tried
by legal jury the judgment is reversed and
the cause remsnded. White, p
Vincent VS. the state; appeal from Tarrant.
/. A conviction for receiving or concealing
property knowing 1t to have been stolen,
may be had and will be sustained under an
'diciment charging theft of the property.
80 Texas III; 81 Texis 593, 2 Texas CT
app. 229; 9 Texas CT app. 124; Jb. 294;
Clarks Criminal Law of Texas, p. 295, mole
100. 2. While II is true that the state must
establish case that is not barred by limita-
ton, yet If the evidence raises no such issue
!he court is not bound 10 charge upon it.
Affirmed. White. p. j. (Hurt, j dissents
from the first ruling IN this opinion.
Price VS. Mccoy; appeal from Frio. The
appellant sued the appellee for an attorneys
fee for $225. /. As to the question of ten.
der, the defendant would not be relieved
from liability without bringing the money
the time of the trial. 2. The undertaking OF
the defendant IL he agreed 10 employ the
plaintiff 10 perform tbs services set out, was
the defendants own undertaking and not On
agreement TO answer for the debt or default
of another and hence not within the statute
of frauds, and was not required to be red ICED
TO writing. Reversed ana remando3. Wink.
Ter. j.
Matthews vs.. the stste; appeal from Tar
rant. The indictment upon which appellant
WAS tried and convicted co tains two counts,
the first charging that by an assault and by
violence. putting 10 fear Of great bodily in
jury, ETC., defendant did unlawfully take
from one Csshion. a watch and chain valued
at SIS and 'fo-'y dollars In current paper
money Of the United Sisies, belonging b.
said Csshio1, and described Is follows, to-
wit: Two ten dollar bills Of the value OF ten
collars each, and four five dollar bills Of the
value Of five dollars esch. etc" The sec1ud
count charges the defendant with tbs theft 81
tbs tsme properly and money, describing II
a. 10 the frsi cunt. The verdict war: I've,
the iury, End ths defendant guilty Of SWIM
ding, 10 an amount sxceeding twenty-five
dollars. and assess his pu8ishmsnt at coIhae-
msnl IN The state peniieotiHry for period Of
four yeArs." We fail 70 see thst any attempt
was inside 10. identify the money by proof
with that described in the indictment, and
that part q The cbsr.:s cannot enter into or
form any psrt Of the basis Of tbe verdict and
judgment The value Ct The vstch being
only SIS, vii lot alOne support The verdict
II N oarnr whern The rarnict u for a u. irur