The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-05
OouRr OF AFrEAIs.
synopsl. ofOplnions ofthe Court Of Appeals

Travis county. There Is no eAceptioh W
the requirement that. in criminal cases OF
every grade, that upon trial the accused
must plead guilty or not guilty to the charge
sgainst him. and that ON falling or refusing
to do so, plea of not guilty must be en-
tered for him. The abundant and common
authorities to the above effect ought ohave
the necessity of reiteration of the above
principle. White, p.j
Fredrick aud August Mechel VS.. the
state; appeal from Comal county. The
court decided in IS Texas, 666, that the
long usage ola public road, and its recogni-
zion as such by the court apportioning the
hands to work it, were sufficient evidence
TO establish the fact that il was public
road, independent of the order of the court
10 that effect. Affirmed, Hurt, ].
J. Il. Coggins VS.. the state appeal from
Collin county. Held that u defendant not
renting all the land enclosed by the fence
which encloses his land, in the absence of a
contract to the contract to the contrary had
the same right to occupy, to use and "a
Craze the land during his term rs the real
owner. Taylor on landlord aud tenant,
sec. Las, page l27 Reversed and dismissed.
Hnrt, ].
Rod Nooth VS.. the state; appeal from Tar
rant county. Defendant was indicted with
an assault with the intent TO- murder; buL
was convicted OF an aggravated assault. A
brother OF the defendant and an injured
party one Wash, were discussing at an APP
pointed meeting certain investigation in
Friendly manner, when the defendant ar
rived, and by his words and actions brought
about resort to arms. Wash having gun
In his wagon In which he came, and the
brother OF the defendant using u pistol,
Il. 4
several shots were .iired' me court below
could not charge, under the circumstances,
that the defendant had right to shoot
upon Walsh,s showing an act tending to in
lure his brother and was not bound to wait
nor MN 10 shoot. Such, IN order not to be
zoo stroiB against ,ne prosecution, should
nave peeh mounted 10 the eiiect that the ne
OIL the pro,her must nave been seriously
cuuanBereu, anu tnat the uahSer must nave
been Imminent ana pressing before the de-
senuailt couid shoot 10 prevent the threat
S s,Is injury heVerseu ana renhahded.
WHIST" i,,ia n; uo Alfalfa. ,e
Jule Wi,lams vs., the state appeal from
tapilsheu RUE pom III clVil ana criminal
cases that children OF any age are compe-
zen, 70 testiiy, ana may DC examined upon
on II II capable OF distinguishing between
5000 ana eVil, whenever they manifest in
tebiSehce enough 10 observe ana narrate
transactions or wheh they nave due sense
OF an oDiigatioh OF an oath that is,
posses s9illclent' Knowledge OF the
nature ana consequences OF an oath,
ureenii' hVo 3ol. Inc determining by eX-
Summation OF snch competency Is lett to
the discretion of the Judge, and the appel.
late court VIII not pass uniavorably upon
mat discretion unless the same is most
clearly abused; Tor the court below has
something better tllan mere transcript to
act upon q Tex u. App, 3oS. In the
case mere, tne witness, U year old, disclosed
meagfe intelligence ana an utter want
~ tne appreciation OF an oath, and
taat she hau oeen instructed ana rehearsed
repeatedly as to what to testify, and there
lore she was not competent from the eXami'
nation on her vol dui, us shown by the pull
OF exceptions. reversed ana remanded.
White,p'l.
Frank Cummings vs.: the state; appeal
from uraysoh county. Inc court below cor
rectly overruled the motion in arresting
judgment, when the indictment
charged theit under ana by virtue
oil the laws. oil the Choctaw
Nation Tor the oilehse OF bringing property
INTO tnls state, Which was obtained by the
commission OF crime against the law OF u
foreign state, which our law Furnishes.
III Iexas, Zoo') ANA IL was not necessary
10 be alleged That the SAID defendant was
punishable by or SUBJECT To the laws OF
said nation. me law, rs contained in II
book with the following IN PRINT on the
tue page OF saiu DOCK, to'wlt Cohstltu'
ton ana Laws OF the Choctaw Nation, to-
gether with the treaties OF 1890 aud
1866, published by authority and dicta-
ton OF the general council by Joseph I,
Folsome,, commissioner Tor the pur'
pose, chapter Iomaha, 1863, was
competent TO be received as cvt
denoedo OF what discontinued; OK, s.. BOO |
biils oil eScepuohs' as shown by the record,
hled within one gay OF u month alter the
trial, as exhibited by the Judgment not ON
nueu 70 cohsiueratl2n, because not pre-
scented to the Judge within ten days after
the conclusion OF the trial' as prescribed by
IAN; w leAas' w. APPS, ooo') Affirmed.
Whlte,p' J.
w. ). Jones vs. the state appeal from
Cooke county. Inc appellant ana his wife
iad dispute 9hrly III Tue morning over
dough pan lie was III possession OF the
same, when ihe VIE came IN the Kitchen
and attempted to get tns pam aiiera strgg'
sic she succeeded Inc jury, were i'll
struoted, that the husoanH hHd the same
right torcpel an at'aeN OF ms Wllc' as ltshe
was man; ana that II he ohly used ncres-
sary iorce, they must acqult HIM, The
Jury essentially uelcrmlne tue weight OF
che evidence ana credlo,llly OF witnesses,
when, as here, the conflict OF testimony
tends both TO u convection and eScnlpalion,
nEl al al