The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-12-07
COURT OF APPEALS.
Synopsis of Opinions of the Court of APP
peals, Tyler Term. 1882.


Synopsis of Opinions of the Court of Ap
peals, Tyler Term. 1882.
Green Lawson VS.. the State from Rusl
county. Conviction for theft. The defens
was an abb, the only evidence of iden'it,
was that of Mrs Coleman. Before going Il
trial defendant moved for continuance OF
the ground that material witnesses wer,
absent. The motion was overruled. TIT
does it disclose failure of materiality in thu
testimony desired, or want of its probabl,
truthfulness. Held, the motion shoult
have been granted. Reversed and re
manded. White, p. j.
Galloway VS.. Baldwin; from Harris coun
ty. A verbal promise to pay a debt by {
| bankrupt when such debt is discharged by
bankruptcy and barred by limitation, viii
not revive it as to the bar of limitation, bu
gives right of action to the creditor if moi
| barred The statute is not suspended from
the time of the administration in bank.
ruptcy until the promise to pay, but il
plaintiff filed his claim with the register
and prosecuted his suit in bankruptcy, and
it been remanded to the state courts, the
|
pended during its tendency. Reversed
and remanded. Hurt, j.
| Munson VS.. Metz; from Grayson county.
The evidence clearly SHOWS that the mouth
OF the sewer for obstructing which this suit
was brought, was larger than at an angle
further down, and that more water could
pass in where the obstruction was placed
than could pass out at the lower angle. The
court therefore erred in refusing to charge
that the damage alleged to have been
caused would have accrued to appellee il
the obstruction had not been placed there,
| that appellee could not recover. Reversed
and reinanded White, p. j.
| HANKS VS.. the State; from Travis county.
| This is prosecution for forgery of land
| title. The forgery was committed in Lot
| siana, but affected lands in Texas. The
| indictment was drawn under article 45l,
P. G. Appellant calls in question the con
stltutionality of article 454, p. g., which
renders one liable to prosecution for such
forgery, although committed i'll another
state. Held, although the acts of forgery
were all committed out of the state, yet as
the fraudulent acts affected lands in, and
citizens Of Texas, the legislature had author
| ity TO pass article Ash, and appellant having
made himself amenable thereto, cannot
complain. There appears no error OF
record, and the judgment is affirmed.
White, p. ].
Waite VS.. the State; from Robertson
county. The opinion OF medical men, who
are shown to be experts, as to the insJru-
ment which would produce death, and the
nature and consequences of wounds made
by such instruments are competent evil
dence, Flight ana its attendant circum-
stances are admissible to their guilt in con-
nection with other evidence. The fact that
the homicide was committed by a prisoner
attemptingto escape lin justification. The
written confessions of appellant while a
prisoner, not being objected TO, are admissi-
BILE. Affirmed. White, p. j.
Brawles VS.. the State; from Smith county
On the trial witness testified that he was
well acquainted with both defendant aud
deceased; had lived with them in the neigh
borhood for wears. He was then asked
what was the general character of the par
ties for peace or violence. Objected to and
sustained He'd, not having qualified
himself 10 speak ON the subject, the court
did not err. A witness must speak from
his knowledge Of their general character
and not from his individual opinion. The
inquiry must be linked to the reputation of
the person in the neighborhood where he
lived or where he is best known. Affirmed.
Wilson, ].
White VS.. the State from Navarro county.
If a person Intentionally inlet personal
injury on another, which results IN death,
although the intent to kill did not exist, If
the act was prompted by malice the law
holds the assailant guilty OF murder. The
intent must be proven as matter oil fact TO
be determined from ALI the facts and cir
cumstances. To constitute an assault
with intent to murder, two things must
concur: l. An assault. 2. specific in-
tent to kill. Without a simultaneous con-
currence of both there can be no assault
with intent TO murder. No other intent
save the specific one 10 kill is sufficient.
The intent may be 10 kill under. circum-
stances which, If death ensued, would not
be murder, such intent would not consti-
tute the specific intent necessary 10 coust-
tute an assault with intent 70 murder.
Reversed and remAnded. Hurt,
Evans vs. the State; from Smith county.
Whea the proper predicate is laid BY the
state by proving the absent witness TO be
dead, that his evidence was taken b,fore All
examining magistrate when appellant was
present and could have examined him, ana
that his evidence was properly certified TO
by the judge taking such, Il - admissible.
When nothing is endorsed on IL 70 show
whether it was given or refused, IL will BE-
presumed that the special instruction
asked was given 70 the jury. Defendant
and his counsel having failed TO sndeavOf
TO find out what a witness testimony would
be. cannot claim surprise because the WI
ness testilies to other matters 10 which be
0ll Dol TESTIFY Ou lut tAdAAuAiit tAAais NJ
fi1ned Wilson, j.
Stewart Lawson W. the State; from Nor
ris county. Ii must appear from the iniOr-
nation itself, aud by DO other means, thai
the place where the alleged oiense was
committed was within the jurisdiction Of
the trial court. In a charge of sEgrsvafed
assault and battery upon q female, fAilurf
10 Charge that tle assailsnt was an eduli
male il fa'si Reversed ana Information
n
Williams w. ,he Stste; from Smith
county. To chsfxe the offense Indicated in
Article 70 + a. % u NJ essary 70 make ep-
pear. l. That excused threatened 20 do
some Illegal act inj uri0Us 20 the character.
person. or properly Of smother. The threats
should Be avsrred, as well as the Illegal &c
with reasonable certainty. 2 Ihat
accused By such threats fraudulently IN
duced the person threatened 20 deliver 70
him certain property which should be De
scribed &c In an Indictment for then, e1-
cert the value need not be given ,
Tfsf accused - obtained the property.
With fut.nt 20 appropriate same 70 his own
use Affirmed Wilson,
Powell ". the Stare. RON Harrison
county. Eri5encs IL admissible 70 prove
thnt deisndant tti5rs deceased vHs shot