The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1883-04-05
THE HIGHER COURTS.
GALVESTON TERM i@s.I
Synopsis of Opinions OF Court OF
Appeals.

Appeals.
REPoRTED BY ED. j. HAMMER.
Parties desiring information upon matters
concerning the higher courts will receive such /
by writing our court reporter at Galveston
Heidenheimer Bros. VS.. Franklin;
from Galveston county.-An incom-
ing partner does not, by his entry into |
the firm per Sc, become liable for the
existing debts of the firm, although /
he becomes member and is respon-
sible for future liabilities. If the in
coming partner agree to pay the eX-
listing Liabilities, such agreement is
binding as between the partners, but |
the benefits do not accrue to the cred
itor. In order to render an incoming
partner liable to the creditors of the |
old firm there must he some agree
ment to that effect entered into. |
Atlirmed.-Willson, j.
PInkord VS.. the state; appeal from |
Polk county.-A motion for a con- |
tinuance being presented, the ques- |
ton alone is as to its sutliciency in |
law. In first applications the law
does not require the defendant to |
state, that the testimony cannot be |
procured from any other source |
known to the defendant" This state |
ment is only required in subsequent
applications. When the defense is an
alibi, because the evidence is cumula-
tive is no reason for its exclusion, but
| more greater reason why it should
| be admitted. The court erred in adj
hitting the allegations of the wife's
petition for divorce to go to the jury,
| especially without an explanation as
to the extent and purpose it should be
considered. The court erred also in
decreeing the judgment of divorce adj
Missile because it was rendered some
months previous to the commission
of the Offense. Reversed and re-
manded-White, =. J.
Williamson VS.. the state; from Ma
| varro county.-There are exceptions
to the rule that evidence of Il distinct
offense can not be admitted in sup
port of another offense, and such eX-
ception applies where, in cases it re-
lates to knowledge or intent of the
party us to some material fact which,
though apparently collateral, had
some bearing on the material or main
fact. Where the Indictment alleges
the stolen steer to he an estray, the
owners of which the grand jurors did
not know, and that such estray was
in the possession of a, the prosecu-
ton must go far enough to show that
the grand jury did not know the own
er and could not have found him out
by use of ordinary diligence; and
where the proof shows ownership IN
n and possession, management and
control in b, the want of concert of
both must be shown. If the evidence
of the parties is not obtainable, and
such fact is shown, proof of such fact
of want of concert can be made by
circumstantial evidence. Bowling
VS.. state, Texas Law Review, 40.
Reversed and remanded- Wilson, J.
Neyland VS.. the state; appeal from
Orange county,-Returns upon writs
Endorsed by the sheriff simply mot
executed" or "not found" are not in
compliance with the law, and when
the evidence is shown to be material
such a return upon the writ will au-
thorize the court in granting a con-
tinuance the same as though the pro-
cess had not been returned. If the
evidence shows the homicide to be
nothing but murder no charge on any
other degree but that of the first de-
gree. The court is not authorized to
charge upon manslaughter if the
proof shows only murder of the first
or second degree. Without evidence
of an adequate cause it would be i'm
proper to charge upon manslaughter.
Reversed and remanded.-White, u.
j.
Thornton VS.. the state; from Dallas
county.-This is an appeal from the
judgment of conviction for an assault
with intent to rape under article SOB
penal code. The evidence clearly
proves the attempt to rape clearly to
have been made upon female child,
between four and five years of age.
The indictment upon which the a., er-
dict was found is sufficient. The
charge of the court is a clear exposi-
ton of the law applicable to the case,
and the judgment is affirmed.
Yeager VS.. the state; from Harris
county.-This is an appeal from a
judgment of conviction for the theft
of property of more value than $40.
AS the record contains no statement
of facts, bills of exceptions nor as
signment of errors, nor does it show
that any motion in arrest, or to quash,
the court, therefore, can only look to
the Indictment and charge of the
court, and finding both of these in
struments unobnoXious to any objec-
ton raised against them, the judg-
ment is therefore affirmed.
Mike Yeager VS.. the state /: from
Harris county.-This IN appeal from
a judgment of conviction for bur-
glary, upon which the punishment
was assessed at five years imprison-
ment. Appellant comes before this
court with a record that does not con-
tain a statement of facts, bill of eX-
ceptiOns nor assignment of errors and
no objection was interposed to the in
dictment or charge of the court.
Held, Upon such a record we can do
nothing but affirm the case. Az
| iirmed.
Coffey VS.. state; from Cass county.
This is an appeal from a judgment
of conviction for murder of the sec
Ond degree. Held, The facts upon
which the verdict was found fully
warranted it. The indictment is in
every way correct. The charge is
full, fair and impartial. Appellant
has had fair trial and been convicted.
| He raises no new questions, and those
raised have been disposed of in Ney-
land VS.. state, supra. Affirmed
Hurt, j.
Supreme Court.
| Cantagrel ct al VS.. Won Simpson ct
| al; from Harris county.-The posses
sion of appellant being ian actual,
visible and exclusive appropriation of
the land" and he continuing under
such, defendant held such possession
as was contemplated by the statute.
Defendant being in possession under
a claim or color of title, could not be
regarded as "a mere naked disseissor,
but having placed on the land a Sub
st initial, visible inclosure" this is
de :isive proof of the disseizen of the
true owner % Texas, 285. Where
the deed describes the land as all the
land owned by the vendor in Harris
county it is sufficient. Girard having
made the sale as the agent of Canta-
grel, and Blanc holding under it rec
ognizing Cantagrel's title and repu-
dating the title of plaintiff, he cannot
plead its need as available to him, nor
can plaintiff pretend that he was
holding under them, nor can he make
such an objection to the lease after a
lapse of more than five years. Re-
versed and judgment rendered for de-
fendant.-Opinion of Delany, j.,
adopted.
Heirs of Jones VS.. heirs of Paul:
| from Galveston county.-The law
now is not so strict as formerly, and
If paramount title is positively as
serted against the vendee now, he is
q oil .r<.I 30. oil n