The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-12-07

had been convicted N bHfMafisinf ha
house aud hnd served n tern IN The poni.
tenilafy. II g0es ~ sli0w n motive iof flie
/ EllllnR and Il malicious Int M The en-
ioftemont ~ the rule fIf seqnesieflhg Wit
| netsug " oOnllned ~ tln discretion NJ tile
| Judge lfylna the onnsr, a clear abuae
! must be Shown 10 0blaln n reversal AZ
fifmed. Wilson,
Compton W. Tho State, from R6l eftson
equity. Tho alleged insnlllcleiioy Of tho
Indictment 10 Oharpa Incest has BEEN vet.
lied, II o.. App. i62j. AS TO the relation
of siepfitber when appellant occupies TO
the participating female, that relation
ceases " ith the termination If the marriage
relation which existed between the appel.
lgnt and ihe mother of the step.daughtcr.
(22 Ohio st., 5ll) The wife of appellant
testified on the trial agaiust him. Held,
tho weight OF authority is AZ 'ainst the prin-
ciple announced IN Morrill, vs. the State.
% ca. App, 40, and ROLAND VS.. the State,
| % CT. App, 20, and we override those
eases and hold the vile an incompetent
witness. Reversed aud remanded. White,
p.
King VS.. the State from Wood county.
The issue being the position OF the party
! firing the fatal shot, the clothes proven 10
he on the deceased when shot were admissi.
| b G. The court materially erred in It's
charge in limiting the right of selfdefense
TO extreme necessity and leaving the jury
to understand that appellant could only
resort to-it is last resort. The true doc
trire is stated thus: l. IL the slayer pro-
woke the combat or produce the occasion to
have pretext for killing his adver-
ssry or doing him great bodily
harm, the killing will be murder
ity he, the slayer, may be reduced in the
combat. 2. If he provoked the combat'or
produced the occasion without any feloni-
Gus intent, intending for instance, only an
ordinary battery, the final killing in self
defense will only be manslaughter. Re
versed and remanded. Wilson, j.
Banks VS.. the State; from Robertson
county. This case is companion to that
of Waite VS. the State. Held, further,
statements made by a prisoner in jail
when made before the commission of the
offense, are not confessions of murder COM
mitted, but are statements concerning a
crime to be committed, and are'admissible,
as the rule governing the admission in evil
dence OF confessions does not pply. The
evidence supports the verdict after the ex-
clusion of that of the alleged aecOmplices
! if such should have been excluded. AT
firmed. Wilson, j.
Hall vs. the State; from Kaufman county.
The public character Of a road Tor oostruct-
| ing which one is on trial can be proven
| elGner Uy prOOl Oh lbs long Contluueu use us
such, or that the county court had made
an order assigning hands to work it as
pnblic road. But the question as to
whether it is or net public road is one for
the jury to determine from + idence.
The public are not authorized 70 ignore
| public road and choose one for themselves.
Reversed and remanded. White, p. j.
Fort Worth City Mills vs.. Milan Il Pat
terson; from Tarrant county If q, suit be
pfematureIy brought a plaintiff may either
amend his pleading and perfect his case, or
he may amend or entirely make his case.
In eiteer event the costs up to the time of
filing such amendment must be taxed
against the plaintiff so amending. In this
case plaintiff did amend, but in the final
judgment costs of the entire proceeding
were rendered agairst appe liant; this was
error, Tor which the case is reversed and re-
formed so as to render costs against appel
lees up to the filing of the amended petit
ton. Reversed and reformed. Hurt, j.