The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-11


must be stated to show that the place was
public. The statutory provision that
when TO constitute the offense an act
must be done in public place, IL IL sui
1cient TO allege that the act was done In
a public place. had not gone into effect
when this indictment was found. ke-
versed and remanded.-White, II. j.
j. IL. Boone vs.. the state appeal from
Wilson county.-The local option law,
when coDstitutionally in force, repeals
parts OF and all laws conflicting with Il In
the limit of the locality OF its operation.
Therefore, the occupation tax on retail
liquor dealers. imposed by the general
law, does not operate in those locali-
ties where the local option law is
In force. This prosecution having been
brought under the repealed statute,
which provided for the sale of spurious
liquors in quantities OF quart and less
than five gallons, all offenders against
that law are exempt from punishment.
Reversed and dismissed-White, P.J
Charles Warde VS.. the state; appeal
from Bexar county.-The single fact that
the showing for continuance was TECH
nically good would not entitle a party to
the same, for the granting OF the motion
Is within the discretion OF the court, even
on first application. lfheld insufficient
on the motion for a new trial, when
brought before this court, IL must appear
that the correctness OF the action 10 In
volved both as TO materiabllity and prob
able truth. The forms, under the "com-
mon lease indictment bill" In the acts OF
the seventeenth Legislature, are pur-
posed TO include the use of other forms
according TO statutory definitions and
well accepted precedents. IL the accused
Is under fourteen years, IL Is matter of
defense; and that he is an adult male
need not be alleged. When the victim is
nd laG1 NNae Na
tration, in exception to the general rule,
can be proved by circumstantial evidence.
The diabolical results are quickly fore
seen, were these human bruises TO escape,
because the victim could not swear con-
clusively to the act of penetration, as she
was unconscious during the accomplish
ment. Affirmed.-White,P =. J.
Il. and T.. railroad vs.. X. q. Lanham;
appeal from Grayson county.-The court
below erred In assuming the injury OF
the horse in its charge, and In not grant
ing counter charge calling Its attention
to the error. no Tex. 205 And IL was
error, in the second paragraph, 10 In
struct that The railroad was liable Tor
the services OF the horse. In II. and L.
c. II. X. company VS.. Muldrow, [52 Tex.
1881 It Is he'd, that, "the value Of the
stock killed or Injured at time OF the kill
ing, Is the measure OF damages, under
the statute" Il. S. 4246.l In the last
paragraph, the court not duly assumes
that the calf was killed, but instructs the
jury, that the plaintiff Is entitled 10 its
value not to exceed the amount claimed
as its value. For failure TO give the law
applicable to the facts, and for error, in
assuming the facts In issue, the judg-
ment 10 reversed and cause remanded.-
White, =. j.
land p. X. II. company VS.. T. j. Will
llama. annpal from q Ira yaon aanuty y-0uQ
of several joint owners cannot maintain n
suit 10 recover his undivided or In
diyidual interest in the property de-
stroyed. rs Tex. 335.] The measure
Of damages Tor properly destroyed IL the
market value Of the property at the time
and place when destroyed. 40 Tex. 400.l
The court should have Informed the jury
as to what was the legal meaning of mar
ket value. [5l Tex. 203.] These issues
were raised by the evidence, and the
court failed to submit them TO the jury
and, upon failure, the defendant sub
mitted appropriate instructions which
were refused. Reserved and remanded.
-Winkler, j.
Flipe Moncullo VS.. the state appeal
from Nueces county.-The language OF
the court below, when ruling out certain
evidence, and before the jury, that
"The court is compelled TO regard him
ALut Wllutbb bOuRul " Db lutTOQuCtQl
as a principal offender, IL having been
shown that he acted together with the
defendant on trial in the com
mission OF the ofense charged, aud for
this reason the court cannot permit the
said Rich to testify" is held
by the court of appeals to
be calculated to prejudice the jury as
TO the defendant. no Ct. Appls. 473.l
"The language very plainly Indicates to
ha inru that In tho onfrfa,1 n q . hs fsa1 1exo
not only that the profiered witness, but
also the defendent then on trial, were all
guilty of the theft charged against the
defendant, and were allNprlnclpal onen-
ders." Reversed and remanded.-Wink-
Ter, j.
Bill Smith VS.. the state; appeal from
Travis county.-The Indictment AYERS
theft "from the possession OF Williams,
whose other name, II any, is unknown 10
the grand jury, etc;" and the question is,
as between the allegation of the indlct-
ment and the evidence at the trial, does
the proof show such variance as that the
allegation was not supported, that the
christian name of Williams, the injured
party, was unknown to the said grand
Jury, or that they could have ascertained
the same by the use of ordinary dill
gence. The provision of the statute reln-
tive to this subject refers only to the
name of the defendant, and not TO that OF
any other person whose name should be
averred. 1t is sufficient for the indIct-
ment to allege one or more initials of the
christian name, and the surname, in an
allegation of the name of a person ncces-
sary to be stated; and when the same II
unknown TO the grand jury that fact shall
be stated, and a reasonably accurate de-
scriptlon shall be given OF the party
charged with the crime. Aflirmed.-
Winkler, j.
Earnest Allen VS.. the state; appeal from
Williamson county.-The evidence IL 10
the effect, that, the owner of the stolen
property having remarked to the appel
liant that the thief was suspected, and
that sufficient evidence was had TO con-
Wet him, and unless IL was stopped q
magistrate would be called upon TO .ex-
anime the case. Upon this the defend
ant left and shortly came back with the
stolen money, returning IL and c1nfessIng
his guilt. In this case no prohibited
c0mpulsiOn or persuasion exists and the
defendant was not directly or Indirectly
threatened. The return Of the property,
contrition and disposition 10 repair the
injury, along with the fear of thespunieh-
ment, all made up the incentives TO the
defendants restoration of the personally.
The penal code, article 100, shonld have
protected the defendant when there was
al lnIeDLlon 10 return. REVERSED ana re-
manded.-Hurt, j.
Robert Harden VS.. the state; appeal
from Hopkins county.-The defendant
interposed a special plea to the effect
that, IN order for the conviction OF his
co-defendant TO be attained, through
agreement between the attorney appoint
ed TO represent the state and the defend
ants counsel, a nolle prossequi would be
entered for him; that he faithfully testI-
hed on the preliminary examination. the
justice OF the peace assuring him OF in
demnity; that the other defendant was
committed on his evidence; that he testi
fed TO the best Of ability before the graud
jury, and that he thought his retention I'm
custody was as witness, when he was
brought into court TO answer the indIct-
ment against the other defendant. To
this plea the district attorneys demurrer
was sustained. Held, that, despite
great weight OF authorities requiring the
interposItion OF executive clemency, the
state, making a 80 lemn compact with her
citizen, through her officers, the contract
should be enforced In the courts, in
exact compliance with its terms. the
party having kept bis agreement TO the
best OF disability. Wide Tex. Ct. APP
peal, 1871 Reversed and remanded.-
Hurt. j.