The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-05-11
COURT DECISIONS.
Syn opsls of Opinions ofthe Court OF Appeals
at Auslin.

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materially changed the law. Anact passed
March 4, 1881, contains Il proviso, which
provides that parties gaming on tables
upou which tax is levied are not exempted
from prosecution. The fact that tax is
levied upon table does not exempt from
punishment those who use the table fol
purposes which come in conflict with, and
in violation of, the penal laws If the table
fees, or money, or anything of value be
bet on table, no outstanding tax may
be imposed which the party has paid the
players are liable TO prosecution. Affirmed.
Winkler, ].
Dick Saddler vs. the State from Brown
county. The evidence in the case was, sub
staHiiniIy, tina, the plaintiff (the only wit
ness in the easel was sleeping in an arbor,
when she awoke and found appellant rails
ing her clothes. She ordered him to leave
three times, when he walked off muttering
something to himself. No other force was
employed. Held, it may be considered
that such conduct was highly improper,
and, perhaps sufficient to subject him to
punishment for aggravated assault and bat
terry, but the testimony fails to show any
attempt to use force in the mplishment
OF his purpose and where there ia no such
force as might reasonably he sufficient to
oNtlcpliit tuNlllR llilo NbllSlutTu-
ton the relative strength of the parties and
other circumstances of the case, the evil
dence is insufficient to convict for an assault
with intent to rape. Reversed and re-
manded Winkler j.
Tom Sanford VS. the State from Gregg
county. This case involves the principles
enumerated in the case of Saddler vs.. the
State. Supra. On the trial below, the
court charged as follows: ITO constitute
an assault to commit rape In this case. the
purpose and intent must have been to have
carnal knowledge by force. If
his intent was to try to accomplish his pur.
pose by coarse, vulgar familiarity, and the
same produces shame and disgust, but force
TO have carnal knowledge was not used nor
intended, the offence would be an aggra-
waited assault Held: This is substan-
tally correct charge, applicable to the
facts testified to on the trial. The error in
the case was on the insuiliciency of the
evidence. Reversed and remanded. Wink
Ter, ].
j. w. Katlifr vs. the State; from San
Saba county. Where the motion Cor u con-
tinuance contains such avermcnts as to
facts expected to be proved, between which
and the states evidence there is not that
conflict which would render the truth of
the facts proposed to be proven improbable,
the motion should be granted. and refusal
to do so is sufficient error to cause a reversal
of the judgment. Reversed and remanded.
Hurt,
s. ID. Stone VS.. the State; from Brown
county. The charging part of the inlorma-
ton on which de endant was convicted in
the court below is as follows: "That S. ID.
stone, in the county of Brown and state of
Texas, on the LIST day OF February, 1880,
did then and there steal one iron kettle,
same being valued at 500, con
trary TO law and against the peace and dig
nifty OF the state +" Held, this information
il worthless. 1t fails to give the name of
the owner OF the kettle, without which
there can be no proof of taking without
the permission OF the owner thereof. Re
verscd and remanded. Hurt, /.
w. IL. II. Henry VS.. the State; from
Corycll county. The appellant was CON
ylcnd OF assault with intent to murder one
X. X. Berdwcll. tried and convicted and
sentenced to two years confinement in the
state penitentiary. From the record it
does not appear that there was Any plea
showing the issue in the case, and without
the record aflirmatively shows that n plea of
guilty. or not guilty was entered there can
be no issue, and if the result of trial is u
conviction, IL is a nulity. Reversed and
remanded. White, p. j.
James Merritt vs.. the State; appeal from
Comanche county. In the trial of n man
for adultery the testimony OF his paramour
asa witness Is that OF an aCcomphCc, or
particeps criminis, and will not support
this conviction unless Corroboratcd by evil
dence tending to convict him with the Of
Tense. Reversed and rcmandcd. White,
p'b,,., u,..
klns county, On the call of this case in the
court below, defendant offered written
IN iut tl.ut Ia
PENDANT and another had been arraigned at
u previous date before n justice, charged
with Tue THEFT Oi the same property that he
was charged with then. That by an ar
Management duly entered into between the
states attorney, his attorney and the ius-
bcc Of the peace trying the cause he was
promised and agreed with that If he would
tell all he knew about the theft, honestly
and lruthinly, that they would release him
ana hc would be liberated forever against
any charge for the theft. Relying on this
agreement he told all he knew before the
public and before the grand Jury. lie was
then tried and convicted On presenting
this plea i'll bar the Judge trying the
cause overruled ton demurrer ofthc district
attorney, Held, we are aware of the great
weight of authorities is to the effect that
the plea cannot be interposed, but that the
defendant must look to executive clemcncy.
lnis IN hot correct III principle, III the
state, through her officers, makes solemn
compact with her citizens, this contract
should be enforced in her court in exact
compliance with It's terms Upon what
principle of justice is this defendant driven
from the court to his eXcelcncy, the cover
nor, for an enforcement of the compact.
We are OF the opinion that common hon.
es,y and public Justice demand that when
such contract is made and the party faith
fully complies as far rs is within his power,
that tho court in which the breach is at.
tempted should interfere, and prevent the
breach by enforcing the contract aud not
drive the party out of the court to seek RI.
lief elsewhere Reversed AMI rcmanded.
Hurt, J,
Supreme Court.
s. Deutsch & Co. VS.. l.. Wallen; from
BeSar county. The husband having
decided the land in controversy, subse.
quently the deed given by his wife, who,
when she gave the deed, was not
joined by her husband, and the
deed oeing executed and recorded prior
TO the sheriil's deed, under which
Deutsh & Co. claim title, was valid
conveyance, aud as the husband had the
right 10 make the conveyance without being
Joined by his wife his deed was superior Ia
ahne,ns, ,,la n,k.s,.,... i.