The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-11


In violation VI law. fn view Oi another
trial, the court observes TO the effect hat
generally defendant, who does moi assail
thovalidity Of the plaintiffs title, should
not recover for improvement, because he
had mistaken the boundary line, III the NIB
sencc OF negligence by either party. Re
ycrsed and rcmanded. Watts, C.
Synopsis OF Opinions OF Court Of Appeals,
Austin, Term 1899.
! Cullcrs & Henry VS.. r. NJ. Moore; from
Grayson county. The defendant being
sued as an individual and having set up
the defense that he was acting as agent, it
was incumbent upon him that lie should
have informed the other party at the time
of the contract of that fact and further,
that lie should have revealed
his principal, Is Texas. 0S.) Re-
versed ana remanded. Winkler j.
G. j. Armstrong VS.. A. j. Scri6ner; APP
neal from Collin county. Comfy court
erred in sustaining motion to dismiss,
when the record verified that no notice OF
appeal had been given in the justices
court, and that the appeal bond was not
conditioned as required By law. Reversed
and remanded. White, p,i.
j. j. Montgomery VS.. the state; appeal
from Cook county Defendant was con,
yicted OF the forgery of bank check and
sentenced for two years There beng
a certain and strange onjunction
of circumstances in behalf OF
the defendant, which go Tar
to deprive the action of the criminal intent
necessary to constitute the crime charged,
and as another trial may lead to more sat
isfactory Developments, the cause Is re-
yersed and remanded. White, p. j.
Texas & Pacific railroad company VS..
w. u. Beacken; appeal from Fannin county.
| Rule of contributory negligence LAID down
| IN so Texas, 17S, as follows-viz.! 70 en-
| title one to recover damages for injuries III
flicted by negligence of smother, he must
have used the degree OF watchiulness ana
precaution which persons OF ordinary care
and prudence would naturally and reason
ably use under the circumstances to prove
| The injury Contribuiory or cooperative
negligence exists when the act producing
same would not have happened but for the
negligence or wrong OF both parties. Hence
the plaintiffs mule, with loose, rope
around its neck fastened to the track and
a train coming around curve, could not
stop in time. Reversed and remanded.
| White, u.
Il. w. Bates VS.. the state; appeal from
Travis county. There is no exception to
tue requirement that, III criminal cases OF
every grade, that upon trial the accuseu
must plead guilty or not guilty to the charge
against him, and that on falling or refusing
to do so, plea of not guilty must be en-
| tered Tor him. The abundant and common
authorities to the above effect ought 10 have
| the necessity of reiteration OF the ABOVE
principle. White, p.j.
| friedrich and August Meichel VS.. the
state. appeal from Comal county. The
court decided in 43 Texas, 666, that the
Is. ,,fo il
ton rs such by the court .apportioning the
hands to work it, were sufficient evidence
to establish the fact that it was public
road. independent of the order of the court
to that effect. Affirmed, Hurt, j.
J. r. Coggins VS.. the state; appeal from
Collin county. Held that 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 10
craze the land during his term as the real
owner. Taylor on landlord and tenant,
sec 143, page 127) Reversed and dismissed
Hurt, j.
Rod 'Nooth VS.. the state;' appeal from Tar
rant county. Defendant was indicted with
nm assault with the intent to MURDER but
was convicted of an aggravated assault.
brother OF the defendant and an injured
marty. 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 pistol,
several shots were fired. The court below
could not charge, under the circumstances,
hat The defendant had right TO shoot
npou Walsh's showing an act tending to m
lure his brother. and was not bound 10 wait
| f,r him to shoot. Such, in order not 10 ne
. I.a anti =
h ave peen modified to the effect that the life
OF the brother. must have been seriously
q dangered, and that the danger must have
been imminent aud pressing before the de-
ndant could shoot to prevent the threat
ap-d injury. Reversed and remahded.
Wi2kler, ].
julie Vi illiams VS.. the state; appeal from
San Augustine county. 1t is now The to-
tsblishe1 rule both In civil and criminal
cas- that children OF any age are compe-
tent 10 testify, and may ne examined upon
"a n. if capable of distinguishing between
| good and evil, whenever they manifest IN
diligence enough to observe aud harrale
transactions, or when they have due senae
of an Obligation of an oath; that Is,
posses sufficient knowledge of the
nature and consequences of an oath,
| Greenlf Ev., 1867. The determining 10y eX-
animation OF such competency Is left to
the discretion of the judge, and the appel
late court will NOS pass uniavorably upon
that discretion unless the same is most
clearly abused; for the court below has
something better than mere transcript TO
act upon. o Tex. ~. App, 80. IN The
case here, the witness, year old, disclosed
n meagre intelligence and an utter want
of the appreciation of an oath, and
that she had oeen instructed and rehearsed
repeatedly as 10 what TO testify, and there
fere she was not competent from the exam,
- - A. AT oh ~ ha
OF exceptions. Reversed and remanded.
Frank Cummings VS.. the state; appeal
from Grayson county. The court below cor
rectly oyerruled the motion in. arresting
Judgment, when the indictment
CHARGED theft under dc and md oyc b Di5,us
Nation, for the offense OF bringing property
into this state. which was obtained by the
commission Of a crime against the law OF
foreign state, which our law Furnishes.
(21 Texas, 2gs.) And IL was not necessary
TO be alleged that the said defendant was
punishable by or subject to the laws OF
said nation. The law, as contained IN
book with the following in print on the
title page of said book, so-wit: Constitu-
ton and Laws Of the Cboctaw Nation, to-
gether with the treaties Of. 1855 and
1906. published by authority aud dicta-
ton OF the general council, by Joseph r.
FOlsome, commissioner Tor the pur
pose, chapter Tomaha, 1850" was
competent 20 be rsceiy7d Us eyi.
deDced Of what was contained. az s.. 22J0.)
Il lis of exceptions. a. shown by the record,
III d within one day Of a month after tue
trial, as exhibited by the judgment not en-
tiled to consideration, because not pre-
tarfrc ~ the Judge within ten days ATE
be conelu icn Of the trial, as pfescTi ed BY
ls~. 10 texas, ~. Apps-, Oo5J Affirmed
W. te >
WIS. Jones vs.. the state; appeal from
COOK county. The appellant an tis wife
bad q dispute early In the morning over a
dough pan. He was In posse on 81 the
sane, when the wife came in the kitchen
and attempted TO get the pan sitter a strng-