The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-01-29
COURT DECISIONS.
Syllabus of tho Opinions of the Court of
Appeals

ph uChstoCh Vs. RlChtluTi ITOIl
county. Suit YVES brought to enjon juds
ment rendered by Justice OF the Peace 70
the sum of $40 and execution issued there
on. Tho County Court dissolved tho in
junction. and rendered judgmenton injunc
tl0n bonu against principal and suretes
for amount of judgment in Justices Cour
and 10 PER cent. damages. Held, that il
such proceeding the County Court had nC
jurisdiction, and the case as appealed tC
that court is dismissed. Reversed and dis
missed. White, p. j.
Hamilton VS.. State from Gonzales coun.
ty. 10 constitute burglary at night or in
the daytime, the entry must be by force
ana TO enter an open door at night when
the charge is entry by force would not con.
stltute the force required by the code. If in
ellecting the entry the slightest force is nee.
essary, such as if door be partially open
and he who enters, in order to do so pushed
IL further open, and so entered with intent
to commit felony or theft, the force re,
CURED by the code would be used
The charge in this case was entry
py fraud with intent to rape by force, and
the evidence showed that defendant re-
moved his shoes and entered at an open
door, if indeed, it identified defendant.
Held, that the evidence does not support
the allegation of entrance by force, nor
does 1t support the allegation Of intent,
reversed and remanded. Hurt, j.
Baker vs. State; from Hunt County. The
indictment alleged the ownership of the
animal alleged to be stolen in
the estate of A. deceased, but
the possession from which il
was taken in A. as administrator. In bis
evidence the administrator claimed possess
SION BY virtue of the inventory of the es-
tate. Inc defendant, claiming to have TIA
ken up the animal under claim of right,
offered to make prolert of the record of the
inventory, which being objected to by the
state, was excluded. Held. error. Cumu-
iatlye punishnents were not in vogue prior
to the adoption OF the REVISED Code. Nor
docs the evidence in this case sustain the
CONVICTION: Reversed and remanded
White, p. ].
Lowe vs.. State; from Ellis county. 1t
being IN evidence that Il. had complied
with the estray laws in taking preliminary
steps towards estraying the cattle alleged
TO have been stolen, but having tailed to
iully comply with the law as laid down In
links vs. State, ct. App. 6S, the indict-
ment III alleging the possession in an UNI
known owner, was sufficient. Preliminary
advertisement amounts to no more than
the manifestation of an intention to estray
IL has not the force of conveying the right
OF possession. 1t is too late to object in
this court for the first time, that the charge
was MED subsequent to the trial.
Objection should have been intcrposed
below That the defendant asked for
an attachment for an absent witness when
his case was called for trial, without n
further showing of diligence, will not enti-
tle him to continuance. Affirmed
White, p. j.
Lockhart VS.. State; from Cass county.
The oliense defined in Art. 6g7, +. C., is
~ tttn lxfh ntstt Al
ment so describing the oilense Is sufficient
being sufficient in other respects But re-
cogniIance that defines the oilensc as "un-
lawful cutting timber is not sufficient to
define the oilense OF which defendant was
convicted, and motion to dismiss appeal
must prevail Appeal dismissed White,
p,.i,
Thomas vs. State; from Gonzales county.
Objection to the testimony of witness, on
the ground that subsequent TO the commits
sion OF the o1ense for which the defendant
was on trial, the witness had gone before
the Grand Jury and procured an indict.
ment against defendant for previous of
Tense, of which he was acquitted, is not ten.
able. The privilege of counsel IN the dis.
cussion of the law or evidence in cause on
trial, is 4 matter committed exclusively TO
the discretion OF the trial court, and will be
revised only upon Il showing of prejudice
White, y. !.
Mary Smallcy VS.. State from Harrison
county, in prosecution for keeping a
disorderly house, The evidence of the one
direct witness for the state was, that he
had had carnal intercourse with The
daughters of the defendants, on several
occasions, but never at the house of defend.
ants, Held, that such evidence Is not suf
iicient to sustain verdict against the
hAr A.. hn lAe a -.
ill-iamc. Reversed and remanded. White,
Mckenzie W.. State; from Grayson county.
Bill OF exceptions that is so general as 10
fail TO point out the error complained of
cannot be entertained by this court. Ii was
competent for the county attorney to in.
quire of the witness ~ the order handed
hin, was that alleged to have been forged
and upon which he delivered goods and to
ask if II was In the same handwriting M
another order .purporting to have been
signed by another party, upon which the
defendant had obtained goods. Nor did tho
court err In permitting the State To prove
all that defendant said about the order
alleged to be forged, at the same time he
presented the same to the prosecuting wit
ness and obtained the goods thereon. Az
firmod. White, y. l.
Lindley VS.. State; from Hopkins county
The rule Of practice requires that, should
the court refuse fur aud complete bill of
exceptions upon objection 20 any proceed.
ing the defendant may resort TO by.
ISLANDERS. An incorrect bill of exceptions
cannot be corrected by affidavit. The
question Of identity is one material to
the defence, and where that issue is present.
cd In motion for new trial, asked for
the purpose Of producing newly dis.
covered evidence TO prove that issue, aud
due diligence Is shown In the motion, the
new trial should be granted Reversed and
remanded. Hurt, 1.
Russell vs.. State; from Williamson coun.
w.. Defense TO homicide being killing in
sclf-dcfense, and the evidence
showing previous threats against
the life OF the defendant by the deceased
which were communicated to HIM, lac was
entitled TO lay before the Jury the nature of
the threats. the intent with which they
were made, and the reasonable fear of death
or serious bodily harm they were calculated
% inspire. However remote fact may be
relevant TO the issue, the better
practice Is 10 admit Il. leaving its
weight and effect to the Jury. not.
withslanding much authority dir,rts tbo