The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-04-24
COURT DECISIONS,
synopsis of Opinions of the Court
Appeals,


Appeals.
FIX parte Ed Bergen; from Parker county.
fan act or omission go nomine is made u
penal oiense, and penalty is affixed, it be.
comes an oilense punishable by law. Art. 3
and 4 of the Penal Code in connection with
art. $40 Of the Penal Code make "sodomy"
an otlense with penalty affixed thereto in
compliance with art. 3 Ofthe Penal Code.
Affirmed. Wilson, j.
Stel VS., State; from Dallas county. A de-
PENDANT III misdemeanor case may waive
his right of trial by Jury or may agree to a
trial by jury of Less than six men. Where
no such waive is shown, to be Il legal Jury
it must be composed of six men, and the
record must show the jury to be legal one
or the error is radical aud can be taken ad-
vantage OF upon appeal, whether properly
ayailed of in the lower court or not. Re-
versed and remanded White, p. /.
Woolsey vs. State; from Ellis county. An
indictment IN a prosecution based upon
Art go of the Penal Code is fatally deleC-
tive II it fails to allege that the acts set out
therein as constituting the oflense were
"wiliully" done. Reversed and dismissed.
White, p. ].
Hyatt vs.. State; from Ellis county. While
it is unnecessary to aIlege the stolen animal
to be "gelding," since under our statute
for THEFT and the article under which the
prosecution was based, the generic term
horse" is used to embrace all classes of
the horse species. Yet having so alleged
it, the proof should have conclusively
shown such TO be the case. Reversed and
remanded. White, p. j.
Robinson Brothers 4 Co. vs.. Veal, from
Tarrant county. f. being indebted to ap.
pellee gave him mortgage 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 Appellee's rights
were fully protected under the law, rs pur-
chaser At the attachment sale, did so pur-
| chase subject TO his mortgage and his rene.
dy is to follow the goods in the hands Of
such purchaser ~ Texas, Al 10 Texas
49, Reversed and remanded. Wilson, j.
Gordon VS., State; from Dallas county
Where there is no statement of facts, bill
OF exceptions, nor assignment of errors in
the record, the court can only look to the
indictment and charge of the court, which
being correct, the judgment is affirmed
| White, y. !.
Turner V. State from TRrrant county
| Where the oilense was committed and the
information filed the same day and the al
! legation in the information and complaint
alege that the oilense was heretofore
committed, the allegation is sufficient
| Affirmed. White, p,j.
! BrOwnlee VS., State from Collin county
| The application for continuance failing tC
show q want of due diligence was properly
l a Lei.
| ing fairly submitted to the jury by an I'M
eXCeptionable charge OF the court theil
| finding is final Affirmed. White, p. /.
Nowlin and wife v Hughes ct al; from
| GrNyson county, Where the affidavit tileC
/ in lieu OF an appeal bond does not stat,
/ that appellants are unable TO give security
! for the costs Of the appeal, or that appel
lants are unable to pay the costs of appeal
"or any part thereof II Is insufficient
| Appeal dismissed Wilson, ].
Clark VS. State; from Tnrrant county. Tit
record failing to contain a statement o
facts, bill OF exceptions, or charge OF tn,
court and the indictment being sufficient
the judgment is affirmed. Wilson, j,
| Glersa VS. Nocum; from Grayson county
! The Judgment rendered in the iustic,
court being one for costs only, was not ,
final Judgment, and the county court io
that reason correctly dismissed the appeal
(2l Texas, 53j Affirmed, Wilson, ],
| Beatty V. State; from Ellis county. TIL,
evidence being amply sufficient to support
the VI rdCt, the charge OF the court beinl
unobnONious and the indictment beins
good, the judgment is affirmed Will
son,
Mabry We. Fitzgerald from Ellis county
The charge OF the court correctly applied
| the law applicable to the case. The evil
dence adduced amply supports the verdict
and the judgment must be affirmed. Will
| son,
Texas & Pacific Railway vs.. Rothlisberger
! from Dallas county. Suit Tor damages for
| killing stock. The market value Thereof
was clearly proven. Held; That the own
pr tailed to utilize the flesh Tor beef If IN
law he was bound so to do, is not required
OF MIN unless he knew of tue killiEg IN time
so to do. Affirmed. White. y. J.
Dunagan VS.. Millsap; from Lamar county
Suit against the sheriff for seillng certain
posts. Appellee iustiIiei under u writ OF
sequestration issued In n suit against al'
pellant. The Judgment however, in that
case was void Tor uncertainty, but the writ
was upon its face valid and regular. Held
| IL was not error TO permit the sheriff to
prove the posts belonged TO the plaintiff in
the suit. Affirmed. White, y. /,
Texas ~ Pacific Railway vs.. Whitman 4
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 dav OF the second
term, the law was not complied with. The
county court correctly dismissed the cause
Affirmed. Wilson, J.
Brown ct nj VS.. Robinson; from Tarrant
county. Defendant being duly cited and
no good cause being shown why she did
not appear and answer, aud the petition
setting out good fuse OF action, the judy
| %, a,, h,, d,ra,,i, uuu nrnnarly pntcrau An