The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-12-06
COURT OF APPEALS.
synopsis Of Opinions of the Court Of APP
peals, Tyler Term. 1852.

was that of Mrs. Coleman. Before going to
trial defendant moved for continuance on
the ground that material witnesses were
absent. The motion was overruled. The
motion does not show want of diligence nor
does it disclose failure of materiality in the
testimony desired, or want of its probable
truthfulness. Held, the motion should
have been granted. Reversed and re-
manded. White, p. j.
Galloway VS.. Baldwin; from Harris coun-
~. A verbal promise TO pay debt by
bankrupt when such debt is discharged by
bankruptcy and barred by limitation, will
not revive 1t as to the bar Of limitation, but
gives right of action to the creditor if not
barred. The statute is not suspended from
the time of the administration in bank
ruptcy until the promise to pay, but if
plaintiff filed his claim with the register
and prosecuted his suit in bankruptcy, and
il been remanded to the state courts, the
statute of limitation would have been sus-
pended during its pendency. Reversed
and remanded. Hurt, j.
Munson Vi. 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 If
the obstruction had not been placed there,
that appellee could not recover. Reversed
and remanded. White, p.j
Hanks VS.. the State; from Travis county.
This is q prosecution for forgery of II land
title. The forgery was committed in Lou
isiana, but affected lands in Texas. The
indictment was drawn under article Isl,
j. G. Appellant calls in question the con-
stitutionality of article i5i, i. c., which
renders one liable to prosecution for such
forgery, although committed III 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 10 pass article 45i, and appellant having
made himself amenabe thereto, cannot
complain. There appears no error of
record, and the judgment is affirmed.
White, p.
county. The opinion of medical men, who
are shown to be experts, as to the instru-
ment which would produce death, and the
nature and consequences Of wounds made
by such instruments are competent evil
dcnCe. Flight ana its attendant circum-
stances are admissible to their guilt in CON
i. nection with other evidence. The fact that
the homicide was committed by prisoner
attemptingto escape isin Justification The
written confessions of appellant while n
prisoner, not being objected to, are aCmissi.
BILE. Affirmed White phi
Brawles VS.. the State; from Smith county.
On the trial q witness testified that he was
well acquainted with both defendant and
deceased; had lived with them in the neigh
borhood for years. He was then asked
what was the general character of the par
ties for peace or violence. Objected to and
sustained. Held, not having qualified
hmself.to 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 neiChborhood where he
lived or where he is best known. Affirmed.
Wilson, j.
White VS.. the State; from Navarro county.
If n person Intentionally inct 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 q matter OF fact to
be determined from all the facts and cir
oumstances. To constitute mn assault
with intent to murder, two things must
concur: /, An assault. .. A specific in
toni to kill. Without n simultaneous con-
currence OF both there can be no assault
with intent to murder. No other intent
save the specific one to kill is sufficient.
The intent may be to kill under circum-
stances which, IL death cnsued, would not
be murder, such intent would not consti.
tutc the specific intent necessary to oonsii.
tute an assault with intent To murder.
Reversed and rCmanlcl, llurt l.
Evans vs. the State; from Smith county
When the proper predicate is laid by the
state by proving the absent witness to be
dead, that his evidence was taken before IN
examining magistrate when appellant was
present and could have examined him. and
that his evidence was properly certified to
by the judge taking SUCH il is admissible.
When nothing is endorsed ON il to show
whether IT was given or refused, it will be
presumed that the special instruction
asked was given to the jury Defendant
and his counsel having failed to ondcavor
SO hnd out what witness testimony would
b., cannot claim surprise because the wit
ness tcstiiies to other matters TO which he
d d not testify on the examining trial. AT
iinucd. Wilson, !.
Stewart Lawson vs.. the State; from Nor.
ms county. II must appear from the inlor-
nation ITSELF and by no other means, that
the place where the alleged otlense was
committed was within the jurisdiction of
the trial court. In charge OF aggravated
assault and battery upon u female, "A failure
to'charge that the assailant was an adult
male is fatal, Reversed aud information
quashed. Hurt, !.
Williams VS.. the State; from Smith
county. To charge the oilcnse Indicated in
Article I23 L. q. IL is necessary to make APP
pear: |. That accused threa tened to do
some illegal act injurious to tho character,
person, or properly of another. The threats
should be averred, as well rs the illegal act
with reasonable certainty. .. That
accused by such threats fraudulently in
duced the person threatened to deliver to
him certain property which should be de.
scribed rs in an indictment for theft ex-
Ccpt the value need not be given. 3.
That accused so obtained the property,
with intent to appropriate same &c his own
use. Affirmed. Wilson, |.
Powell vs., the State;' from Harrison
county. Evidence is admissible TO prove
that defendant before deceased was shot
had been convicted of burglarizing his
house and had served a term in the peni-
Tertiary. IL goes to show motive for the
killing and malicious int, mt The EN-.
forcement OF the rule for sequestering wit
nesses Is confined to the discretion of the
judge trying the cause. A clear abuse
must be shown to obtain u reversal. Az
iirmed. Wilson !.
Compton vs.. the State; from Rol ertson
county. The alleged insufcency of the