The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-07

without merit. 1t was the duty of the
clerk 10 forward transcript at once, and the
duty Of this court to determine the case.
The question involved is finally settled in
Rusk vs.. State, decided at this term. Re-
hearing refused.
Texas Central railroad vs.. Morris: from
Shackleiord county. Opinion by White,
D. j. By an express agreement contained
in the contract before the cattle were
shipped it was made a condition precedent,
that before appellee would be entitled 10
recover any damages for loss or Injury
which might occur To his stock while in
transit, he should first give notice of his
claim for such damages IN writing TO some
office of the railroad, or nearest station
agent, before the stock were moved from the
place of destination or place OF delivery,
aud before said stock were mingled with
other stock. Held, such an agreement is
valid, legal and binding, and as the evidence
| fails to show that such notice was given, or
| that, in fact, there was any loss or injury
| to the stock, the judgment is reversed and
remanded. Reversed and remanded.
Fort Worth d Denver City Railway VS..
| Hoggsett ct al, from Wise county. Opiuion
| by White, p. j. The only question noticed
| is that assignment which sets out the error.
| If the court, in retaining jurisdiction be-
cause the plaintiffs petition did not suiii'
GENTLY describe the land sought to be con-
demned as to give the court jurisdiction,
and so as to enable it to vest title in defen-
dant: Held, the written statement pro-
vded for by art ilS2, Revised Statutes. lis
| the inatory step, and IL is by virtue OF this
step that jurisdiction over the subject mat
ter involved al is :, acquired ,Sn s,l,om ont II
is not in compliance substantially
with the statute 1t is nullity and cannot
confer iurisdiction." "The designation of
the land sought to be condemned must be
sufficiently certain to identify the particu-
lar portion OF the land over which the
| right-ocway Is sought. The GER
tainty of description required in such cases
is OF the same nature as those required IN
conveyances of land so that a surveyor
may 90 over the land and mark out the land
designated. Because of the insuiliciency of
the petition, the judgment is reversed and
the cause dismissed. Reversed and dis
missed.
Couch ct al. VS.. Parker, from Coleman
county Opinion by White, p. j. Suit on
verbal contract for taking care OF cattle
Contract alleged to be for one year, and
afterwards at the option of appellee, who
was to receive u certain share OF the in
crease for his services. Held, the contract
being a verbal one was in law binding only
| for one year, but, if after the expiration OF
| the first year, the parties permitted appel
| lee to 20 on in pursuance OF its terms, they
would be estopped from DENYING his rights
under it up to the time when by
their own acts they terminated it. While
the charge OF the court was corr oct, yet as
evidence was admitted to show the increase
up to the date of the trial, instead OF at the
date of the violatian OF the contract, there
| I'D nd
Houston, vs. the state, from Denton coun'
ty. Opinion by Wilson j. The court
charged the Jury thus: IF defendant did
shoot and kill the deceased but if the kill
ing was accidental or unintentional you
will acquit him." or ifyou have reason
able doubt as TO whether it was accidental
Held correct. The act OF
of the 18th legislature. Chapter ~ page
o, was but the declaration of
what the law was at the
time of its enactment % CT App. sos, IL
CT App. 5lD. 1t has never been held that
voluntary drunkenness was q perfect de-
fence in cases of homicide. AS lar as the
cases have gone is to admit evidence OF such
drunkenness for the purpose OF reducing
murder from the first to the second degree,
not as a complete defence. The doctrine in
this state is that in no case will temporary
insanity produced by the voluntary recent
use of ardent spirits, be allowed as a perfect
defence, that is such defence as will acquit
the accused of any offence committed While
IN such state OF mind. Affirmed.
Hammel vs.. the State; from Falls county.
Opinion by White, p. ]. An Indictment is
not insufficient because it alleges conjunc-
lively that the property was stolen without
tho knowledge and consent of the owner,
instead of alleging disjunctively that the
taking was without the knowledge or
consent of the owner. The court erred in
admitting in evidence over objection, the
testimony of the witness G, as to what the
deceased told him about the loss OF the
money. This testimony was hearsay, and
without this evidence the Judgment is not
supported by sufficient evidence. Re-
versed aid remanded.
| Grant 4 Berry VS.. Williams e Tolliver
from Ellis county. Opinion by Hurt, i.
Suit for trial of the right of certain lumber,
the property OF the firm of Grant x Berry,
levied upon by execution against Berry in
dividually. Held, the interest OF Berry in
the lumber was subject to the levy of the
execution. The effect of the sale by the
sheriff Of the interest of Berry to the lum-
Der will not dispossess the firm of the prop
erty. The possession will remain lust
where it was before the levy and sale. A
purchaser will occupy the same position
and relation to the property sold as did
Berry, and II any party, either partner or
firm creditor, desires an adjudication OF
these equities, the law remedies; az Tex,
81, A Tex, 1917. Affirmed.
Hart vs.. the State from Hunt county
Opinion by Hurt, j.. The court below
failed to sentence appellant. The question
arises on the motion of the states attorney
to dismiss the appeal, Should the court en-
tertain an appeal before sentence has been
pronounced, III any other than a capital
convictionP Held the court should not.
General Laws 10th Leg, p. 70, Art. 100, Q.
q. P0 Appeal dismissed.
George b. Campbell, W. NJ. Rsgland and
| Wiley Jones VS.. State Central Bank, from
McLennan county, Opinion by Wilson, /.
AS this case involves the questions raised
and determined in the case Of Campbell and
Jones vs.. State Central Bank, reference is
made to the syllabus of that case, presented
below, for all questions raised in this case.
Reversed and remanded.
G. b. Campbell and Wiley Jones Vs. State
Central Bank, from McLennan county.
Opinion by Wilson, ]. Judgment by de-
fault was rendered upon note which upon
its face stipulated for the payment of nteres
at the rate OF two per cent per month. This
| illegal rate of interest is allowed and in.
oluded in the judgment, and the judgment
| further recites that 1t shall bear interest at
| this rate from the date of its rendition.
| Held, a case directly in point is that of
Mosely vs.. Smith, (2l Tex, iil) upon au.
thority of that case, judgment is reversed
and remanded,
Stanley VS.. the State, from Colorado
county. Opinion by Wilson, j. We find
no errors In the proceedings resulting in
this conviction, and no error in the convc.
ton. A most admissible charge WIS given
to the jury by the learned special Judge
who tried the case. 1t was full
fair and impartial, and in every
particular, correct. In their decision the
Jury assessed the punishment at death, and
in our Judgment, this extreme penalty is
we'll justified by the atrocity of the crime
Affirmed.
Heidenheimer & Co. VS.. Felker, from
Mitchell county. Opinion by White, y. /.
All property acquired by either husband,
or wife, during marriage, except that which
Is acquired by gift, devise, or descent, shall
be the common property OF husband and
/ MI 4