The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-04-26
THE HIGHER COURTS.
[AUsTIN TERN, 1888.
Synopsis OF Opinions Of the Court Of
Appeals.
REPoRTED BY ED. j, HAMMER.

REPORTED BY ED. j. HAMMER.
Parties desiring information upon matters
concerning the higher courts will receive such
by writing our court reporter.J
Elk parte Ed. Bergen; from Parker
county.-If an act or omission go
nomine is made penal offence, and
penalty is affixed, it becomes an Of
fence punishable by law. Articles 3
and 4 of the penal code in connection
with al ticle 342 of the penal code
make "sodomy'' an offence with a
penalty affixed thereto in compliance
with article 3, P. G. Affirmed
Wilson, j.
Stell VS.. state; from Dallas county
A defendant in miSdemeanor case
may waive his right of trial by jury
OF may agree to q trial by jury of
less than six men. Where no such
waiver is shown to be legal jury it
must be composed of six men and the
record must show the jury to be a
legal one or the error is radical and
can be taken advantage of upon ap-
peal, whether properly awaited of by
the lower court or not. Reversed and
manded.-White, p. J.
Woolsey VS.. state; from Ellis coun-
ty.-An Indictment in prosecution
based upon article 27O of the penal
code is fatally defective if it fails to
allege that the acts set out therein as
constituting the offense, were will
fully" done. Reversed and dismissed.
White, P.J.
Hyatt VS.. state; from Ellis county.
While it is unnecessary to aliege
the stolen animal to be 81 "gelding,"
since, under our statute for theft, and
the article under which the prosec u
ton was based, the generic tern
"hOrse" is used to embrace all class eS
of the horse species, yet. having so al
legged it, the proof should have con-
clusively shown such to be the case.
Reversed and remanded.-White, P.J.
Robinson Bros. Sc Co. VS.. Veal;
from Tarrant county.-F. being in
debted to appellee gave him mort
gage to secure the debt upon certain
goods, which afterwards appellants
levied upon by attachment to secure
their debt. Appellee sues to recover
damages for the sale of the property
under the attachment. Held, Appel
lees rights were fully protected under
the law, as purchaser at the attach
ment sale did so purchase subject to
his mortgage, and his remedy is to
| follow the goods in the hands of such
purchaser. q Tex, All; 10 Tex, Alb.
Reversed and remanded. Wilson, j.
Gordon VS.. state; from Dallas
| county.-Where there is no statement
| of facts, bill of exceptions, nor assign
ment OF errors in the record the court
can only look to the Indictment and
charge of the court, which being cor
rect the judgment is atfirmed.-W White,
Z. J.
Turner VS.. state; from Tarrant
county.--Where the offence was COM
mitted and the information filed the
same day, and the allegation i'll the
information and complaint allege that
the offence was heretofore" commit
ted, the allegation is sufficient. AT
| firmed.-White, L. j.
| BrOwnlee VS.. state; from Collin
county.-The application for contin-
uance, falling to show want OF due
diligence, was properly oyerruled
The defence Of kleptomania, being
fairly submitted to the jury by an I'M
exceptionable charge of the court,
their finding is final. Affirmed
White, p. ].
T. & P. R'y VS.. Rothlisberger; from
Dallas county.-Suit for damages for
killing stock. The market value
thereof was clearly proven. = Held,
That the owner failed to utilize the
flesh for beef if in law he was bound
so to do, is not required of him unless
he knew of the killing in time so to
do. Affirmed.-White, P. j.
Dunagan VS.. Millsap; from Lamar
county. = Suit against the sheriff for
seizing certain posts. Appellee justi-
fed under writ of sequestration is
sued in a suit against appellant. The
judgment, however, in that case was
void and regular.-Held, 1t was not
error to permit the sheriff to prove
the posts belonged to the plaintiff in
the suit. Affirmed.-White, P. j.
7. & P. Ry. VS.. Whitman & Co.;
from Lamar county.-The transcript
from the justice of the peace not being
filed at the first term of the county
/ court, nor on or before the first day
of the second term, the law not COM
piled with, the county court correctly
dismissed the cause. Affirmed.-Will-
son, j.
Brown ct al VS.. Robinson; from
Tarrant county.-Defendant being
duly cited and no good cause being
| shown why she did not appear and
answer, and the petition setting up a
good cause of action, the judgment by
default was properly entered. AT
firmed, Wilson, J.
! Nowlin and wife VS.. Hughes ct al
| from Grayson county-Where the
affidavit filed in lieu of an appeal
bond does not state that appellants
are unable to give security for the
costs of appeal, cor any part thereof. .