The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-18

and confirmed by the court. Affirmed
Delany, c. .
". X. Slroude, ct al. VS.. Getzendauer. q
Ferries; from Ellis county. If the p9rHes
really agreed that the conveyance OF lhe
lot should eXtingush the sct-oii, u was Il
valid agreement, and the set-otf beco mes
eytinguished and the result is the same MS
if it had never existed. II the seton was
exlinguished it matters not whetl er u
was by sale of land or money; Nheh y.
assigr ed note TO b., he by thaI act
authorized him to collect it by suit u neces,
sary, aud wba.eYer claim appeIlants na''
AGAINST it. they might urge against the
claim in the hands ofB. Now if A. by any
arrangement with appellants either by
payment in money or by conveyance 70 lhe
| property, b. could claim the benefit OF u ~
done in his replication. II A.. had conveyed
| the last lot to appellants without tue agree'
ment about the offset, the effect would nave
been to create debt from them 10 a., anu
70 The security Of that debt a. might haVe
he'd a lien on the second lot conveyed. Al
hrmed. Deany, c.
synopsis of Opinions of Court OF Appeals
Austin Term, 1882.
William Scribner vs.. the State; from
Tarrant county. When the Indictment
alleges that the defendant 'did unlawiully
play game of cards in pubic place
| contrary to law ETC., if the playing was
done at a place other than those specified
| by law, sufficient facts must be alleged to
| slow that the place was public. The stat
utorv provision thai "when to constitute
an offence an act must be done in puplic
/ place, it is sufficient to allege that the acl
was dore in public place" had not gone
into effect when this indlctInent was ;ouno'
! Reversed and remanded. White p. j.,
j. u. Boone vs. the State from wilson
county. The local option law, when, con,
stitutionally in force, repeats parts OF ana
all laws conflicting with it in the LOCALITY Oh
| its operation. Therefore, the occupation
tax on retail liquor dealers, imposed by the
general law, does not operate IN those
localities where the local option Jaw Is IL,
force. This prosecution having peen
brought under the repealed statute, which
provided for the sale OF spirituous liquors
| in quantities of quart and less thah hVe
gallons, all offenders against the law are
exempt from punishment. Reversed anu
dismissed. White. p. j..
Charles Wade vs. the State; from beHar
| county, The single fact that tne showing
| for a continuance was technically gooo
would not entitle party to the same, LOT
the granting of the motion is within the
discretion of the court, even on nrst
application. If held insufficient on
motion for new trial, when brought be
fore this court, it must appear that ihe cor
rectness of the action is involved ootn as
to materiality and probable truth; AN nne
forms under the common lease lnulct-
| ment bill - in the acts of the seventeenth
| legislature, are purposed to include the use
| of other forms according to statutory deI,
nitious and we'll accepted precedents. ii
the accused is under IA years, it is matter
| of defense, and that he is an adult male,
need not be alleged. When the victim Is
knocked senseless, as IN inns caSe,
penetration, in exception to the
general rule, can be proved by ctrcumstan-
tial evidence. The diabolical results are
| quickly foreseen, were these human prules
| to escape, because the victim could not
swear conclusively to the act OF penetra-
| ton, as she was Unconscious during the ac-
complishment. Affirmed. White, p. J.
| r. e. p. r, r. vs. II. g. LaDgham; from
Grayson county. The court below erred IN
assuming the injury of the horse IN It's
charge, and in not granting counter
cha, ge calling its attention to the rror,
| y Tex, 205. And it was error, in the sec;
ond paragrah, TO Instruct that the railroad
was liable for the lervices OF the horse. In
50 Tex, 233. it is held that, the value OF
the stock killed or injured is the measure
of dam ages under the statute IL. ). 42l5.
I In The last paragraph, the court not only
a.. umes t. at the calf was killed, but in
stlucts the Jury that the plaintiff is en-
tit'cd to its value not to exceed the amount
claimed as its value. For failure to give
the law applicable to the facts, ana Tor
error, in assuming the. facts in issue, the
Judgment is reversed and remanded.
White, p. ]. ,.,
texas IL Pacific railroad VS.. T. J. Will
iams; from Graysoq county. One OF sew
eral Joint owners cannot maintain suit 10
recover his individual or undivided interest
in the property destroyed. % Texas, 80
The measure of damages for property de-
stroyed. is the market value OF the pro-
perty nj the time and place when destroy ed.
rs Texas, 400. The court should have
informed the jury as to VIII At
was the legal meaning of market
vsiuo ~ 1'evas 2O3 These issues
were raised by the evidence and the court
failed to submit them 20 the jury, ana.
upon failAre, the deiendent submitted AT
proprjate instructions, which were refused.
Reyersed and remanded. Winkler, ].
Feline Moncullo VS.. the state; appeal
from Nueces county. The language OF the
court below when ruling out certain eyi-
dence and before the jury, that the court
is compelled 20 regard him Cthe witness
sought to be introduced), as principal
offender, it having been shown
that be acted together with the
the commission OF the ofiense charged,
and for this reason the court cannot permit
he aid Rich 10 testify" is held by the
court of appeals 10 be calculated TO preju-
dice the Jury as 10 the defendant. 10 Ct
Appeals, 473. The language very plainly
indicates 10 the jury that, in the opinion OF
the iudee, not only that the preferred wit
ness hut also the defendant then on trial.
we're guilty Of the theft charged against the
defendant' and were all principal offenders.
Reversed and remanded. Winkler. J.
Bll smith VS.. the state; from Travis. The
Indictment was then from the possession
III Williams, whose other name, " any, is
unknown TO the grand jury, etc, and
question is as between the allegation Of the
Indictment and the evidence at the trial,
does the proof show such variance a. that
he ALLEGATION Is not supported. that the
CHRISTIAN name Of Williams, the injured
parfv. was unknown % the said grand Jury.
or that they could have ascerlained the
anne by the use Of ordinary diligence.
The provision u the statutes relative 70
his subject reiers only 70 the
uame Of the defendant. and Dol
to any other person whose
name should be averred. IL is sufficient
f0r the Indictment % aliege one or more Of
he initials OF the Christian name and the
surname. in an allegation Of the meme Of
person Becessary % be stated; and the
.aine Il unknown 20 the grand july, thai
tact shall b. stated, nud q reasonably accu-
-sie description shall be given Of the party
h,rged with the crime. Affirmed. Wink I
F.sruest Auer W. the Siate.frcm William I
% cunt. The evidence IL 10 the
.fTerf that tho 0wrer OF tns /
.foien property having remarked /
10 The appellant hist the tnlei Nas SUI
80 "a inst sufficient eviie-Ice Wss had /
= rorrirf lin ard unItzs u vas stopped e /
rar-iaf-rfe would be called upon 20 cram
~ he cnes Whertuu0n the ceicndafi |
~ 80 coon afterwards came back Eiih /
- stolen money. returning n, and con
-rrirr Lis reilt IN this case 10 prohib-
- r--rrnsiun 81 crmVulsi0n e1isis ara
~ descendant vns NO directly - lnoirectly
-'-.-~r-..I TIE return u the rrDrerty.
= !. -. - rIar.uaiffrun a. ~rrIrlr The