The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-10-19

ant having been properly warned and still
persisted In telling his story, 1t was not
| error to admit il in evidence. Affirmed.
white. p. ].
Court OF Appeals.
Allen VS.. state appeal from Van Zandt
county.--The charging part OF the indlct-
ment upon which appellant Was convicted
was ''thAt Thomas Allen, as shown by
complaint OF with force and arms
did then and there make an aggra-
waited assault upon the person con-
trary. etc." Held, The complaint falls to
charge the means constituting, the alleged
aggravation, nor does IL give the required
notice to appellant to apprise him OF what
be was called upon 70 answer. Had the
words las shown by complaint" Leen
omitted the information would not have
been defective on the ground that Allen
was not alleged to have committed the acts
only as shown by affidavit, etc. The COM
plant is only sufficient TO charge simple
assault. Reversed and remanded.-
White, p. j.
Texas and Pacific railway company VS..
Gum; appeal from Lamar county.-Ap-
pellee, who lived in Paris, Texas, brought
suit for the value OF gin destroyed by
fire while in the possession Of appellant
company. The facts are, that when the
gin arrived at Paris appellant mailed q
written notice to appellee of its arrival.
About ten days after another notice was
sent, and ten days later still q third was
sent, all through the postoftice, Appel
liant claims such 10 be sufficient diligence
and notice to appellee to change their re-
sponsibility to that OF warehousemen.
Held, Nothing but actual notice will
change the liability from that of common
carrier to that of warehouseman. When
appellant proved the sending through the
mail OF the three notices 1t devolved on
them to prove the receipt of such by ap-
pellee. Affirmed.-Hurt, j.
Texas and st. Louis railway vs.. Allen
ct al from Smith county.-The jurisdic-
ton of the court is settled by the statute
granting the lien upon road beds, etc.
The lien when given Is on so much of the
road bed and equipments only as Will
satisfy the debt for which it is given.
Act of 1873, section 1, gives lien to me-
chanics, laborers and operatives only, and
then for labor actually performed by them
and for wages due or owing 10 them.
The foreman or superintendent who re-
mains with workmen directing the work
and sometimes working is laborer I'M
der the statute. The time checks for Ia
Dor performed upon q railway together
with the lien is transferable. TEX. d Pac.
Ry. Co. VS.. McMulIen, Austin Term, 1881.
A person cannot have lien for labor per-
formed by a team or hired servant, or for
implements used or moneys advanced.
Reversed and Observation-Disclosures j.
Chapman VS.. state appeal from BeXar
county.-When appellants case was
called for trial in the court below he plead
a former acq9ittal in lieu of further prose-
cution. The circumstances are similar to
the case of Hemanday vs.. state, supra.
The trial upon which defendant was &C.
quilted was for another and separate Of
tense, though committed at the same
time and about the same place, Held, In
order to plead successfully former con-
viction in lieu of one about to proceed IL
must not only be shown that it was for an
| act committed at the same time and place,
but it must affirm atively appear that 1t
was for the identical transaction. AT
| firmed.-Wh tie, P.J.
Texas and st. Louis railway vs.. Wright;
appeal from Smith county.---The main
and only Issue in the case was, was Wright
| a contractor and performed the work
under contract for specified sum or
was he entitled to the reasonable value.
Wright recovered Judgment in the court
below for $1S1.75. The evidence was
| conflicting, and sufficient to sustain yer
| dict either way. There being no error in
| the charge, and failing TO find any error
in the case, and the jury having found for
Wright, their verdict will not be disturbed.
| Observation-Disclosures j.
Carter vs.. state appeal from Wood
county.-Appellant was charged with
disturbing religious worship, tried,
| found guilty and fined twenty-five dollars
and costs. The loud talking with which
defendant was charged to have disturbed
the congregation, was not such as would
be classed az loud talking upon the pub
lie streets, but was sufficiently loud to
have disturbed the assembly. Held, The
evidence amply sustains the charge and
there being no error of which appellant
has right to complain the judgment
will be characterization, j.
Smith ct al vs.. the state; appeal from
Cherokee county.--In this case the judg-
ment nIsi was not rendered according to
law, in that the judgment, instead of
stating that the judgment nisi would be
made final unless at the next term of court
good cause was shown why defendant did
not appear, 1t stated defendant should
appear at the next term to show cause
why the final judgment should not be rem
dered. Collins vs.. state, Austin term
P. j.
Cheatham ct al vs.. state appeal from
Van Zandt county scire facias was
as follows: Commanding ap-
pellsnt to appear and show cause, II any,
why judgment should not be m ade final"
The court say the statute requiring that
the judgment shall state that the same
will be made final should no good cause
Uo snoWu NJ Tue next torm why ueIenuanI
did not appear must be strictly complied
with. Reversed and remanded.-Hurt,J
Ex-parte Mosely: appeal from Van
Zandt county.---Appellant being held for
theft OF horse upon the trial before the
justice was required to give $500 bond.
Upon appeal the bond was reduced to
$3.50, but a release was refused. Upon
the hearing before the district judge
applicant attempted to prove a purchase
OF the horse from his brother, but the evil
dence was not sufficient. The evidence
on appeal, however, amply sustains the
judgment of the district judge, and this
being purely question OF fact his ruling
will not be dIsturbed.--White,P P. s.