The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-05-22
THE COURTS.


Range Company VS.. w. IL. Brooke
from Grayson county; and Frank n
SheroOd VS.. the state, from Brow
county.
Disinissed-W. g. Thompson VS.. tn
state, from Jack county; and WilliaI
Coulson VS.. the state, from Coli
county.
Remauded- Charley Adams VS.. tn
state, Comanche county; Sam Ian
pys state, from Llano county; and
ID. Womack VS.. state, from Erot
county.
In the Lee case, Lee was indicte,
on charge of permitting certain
games prohibited by law, and his pen
atty assessed by the jury by fine o
$25. On the trial of the cause defend
ant introduced in testimony certain
deed unrecorded and never filed, t.
show that the title to the property II
which the games were played was
vested in Z. q. Ingram, which deed
was admitted over objection OF the
county attorney, and then the state
without objection from defendant
introduced certain deed to show
that the title to same was vested IN
defendant. The court, it Is held,
properly refused to consider the
former of the deeds. Verbal opinion
by Judge Wilson.
In the Coulson case, Coulson was
convicted of making and circulating
libel against one James JoDe, by
means of a certain note in writing,
which Coulson sent to Jobe. JObe
had asked Coulson to pay bill he was
owing him. and he sent the money and
note together by third party. Jobe
not being able to read the note read
lily, got some person present to read it,
and thus the contents of the commu-
nicatiOn, which was abusive and vul-
gar, were disclosed. There was mo-
tion to quash the indictment because
1t did not purpOrt to set out the tenor
of the instrument on which the lndlct-
ment was based, attempting to give
only the substance and meaning and
such portions of the language used as
the jury, from their information, were
able to give, without assigning any
reason for not giving a literal copy OF
the instrument, or stating what the
extent Of the information of the grand
jury was on the subject. Held: When
an instrument in writing enters into
an offence as a part or basis thereof,
or when its proper construction is ma
terial, the instrument itself, haec
Verba, should be set out in the indict-
ment; and that in case of libel it is
absolutely necessary to set out in the
Indictment the alleged llbellous matter
according to its tenor. The motion to
quash and in arrest Of judgment
should have been sustained.
An interesting question suggested
by the court is as to the sulliciency of
indictment in the case ut issue, to
charge libel, based as it is upon pri-
vate letter sent to private individual,
from Coulson to Jobe, and not shown
by Coulson himself or intended by him
TO be seen by any one but Jobe. Upon
this point authorities are cited to show
a distinction between libel at common
law and libel under the penal code. At
common law libel was punishable
solely on account of its tending to
provoke breach of the peace. and
where the common law rule prevails
the state takes notice of a libel against
a private individual, when the Ian
guage is mere defamation OF himself,
because it tends to breach of the
peace. III the libel is contained in
letter sent to the person Hbeled only,
an averment Tin the indictment) is
necessary, because the law does not
presume that the same temptation to
violence will follow as in the case of
public abuse, and it therefore requires
the tendency and intent to be proved,
and to be made the subject of proof,
they may first be averred. State VS..
Herrick, 3 Grim. Law Mag ia. Rex
VS.. Topham, Tenn. r 1877.
Under our penal code libel is pun
ished on account of the ten
dency to injure the reputation |
of person (penal code articles
GIG to GA inclusive), and such being |
the case, if this intent is averred,
the indictment is sufficient without |
the additional averment OF the ten |
dency and intent to create a breach |
OF the peace. Because the court erred |
IN everything the motions to quash |
the indictment and in arrest of judg- |
ment, and because the indictment is
insufficient, the judgment is reversed |
and cause dismissed. Oprinion by |
presiding Judge White.
In the Laue case, the prosecution |
was for the malicious killing of a |
horse, under provisions of article 679 |
of the Penal Code, commenced in a |
Justices court and appealed to the |
county court, where a second |
conviction was had, from which the |
appeal is taken. According to the |
evidence, as gathered from the rec |
ords, Laue killed the horse, which was |
a vicious animal, because, as stated by |
the witness for the state, he was COM |
pelled to do so to protect his own |
property. He also stated at the time |
that he was sorry that he had to do it.
Held-There was not such evil in |
tent as would make the killing will |
ing one in contemplation of law. |
Judgment reversed and cause re-
manded-White,J j..
In the Adams case the conviction |
was had upon an indlctmen which |
charges the defendant with the offense
of unlawfully and feloniously mark
ing and branding a yearllng belong
ing to another party. The defendant
pleaded not guilty, and specially
former conviction for the same Of
tense in the same court. The defen-
cant had branded two yearlings at the
Same time and place. Held-That
the marking and branding of the two
animals constituted but one transac-
ton in fact, although accomplished by
separate acts-Willson, j.
In the Thompson case the indict-
ment informed him that he was called
upon to answer the charge of wilfully
disturbing congregation, assembled
for the purpose of religious worship,
but he was not informed by what
means, or in what manner he caused
the disturbance. Held that the in
dictment is bad for want of certainty
or particulars as to what the defend
ant was required to answer, so as to
be able to prepare for his defense.
30 Texas, 495. The precise question
presented in this case has been deter
mined by the supreme court OF Ar
kansas in cases arising under stat
ute in all respects similar to ours.
State vs.. Menyard, IL Arkansas. ENG
lish) 1856; State VS.. Henson, 81 Ark,
638. The indictment as it is would be
held good under the decisions in the
case of Kindred VS.. the state, of the
sudreme court of Texas, had that de-
cision not been under statute mate
rally different from the one now in
force in our state. The judgment is
recorded; Opinion by Justice Will
son.
In the BROKER case certain proper
tv was levied upon as the property of
Culver Bros. which was claimed by
che Iron Bridge company as corpo-
ration separate from the firm OF Gull
yer Bros, although the firm and the
corporation were composed OF the
same individuals, w. W. Culver, ID. II.