The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-01-08

cutting and carrying away timber not his
own, The only apparent error 10 IN tho
charge, hut aA 10 was not excepted To nor =
counter charge asked, II cannot DO noticed
SOW. There being no statement OF facts We
cannot saw that the court erred In that re-
spsot. Affirmed,
| johnson W. tina state, from Colorado
county. Conviction for the THEFT az hog,
TIE proof 10 positive. Tho evidence shows
the hog 10 have bson q bosr, aud W such
wss worth S26 when stolen, Bn, altar tho
sninisl was altered he was worth sl2 30.
The court therefore did not err In allowing
testimony as TO the value Of the animal as
boar. The charge was correct, aud ali
special charges asked were given. AZ
hrmed.
Newsom w. tho state, from Jlhv'on
county, Conviction for tha tnef ~
watch and pistol The charge i, 49, mira
ble-perlrot In all respects; the predicate
being laid IN the evidence OF the witness
Myers was properly admitted, - taken on
tho examining trial. Defendant tell,
where the property can he found aud II was
found In the place Indicated There vas
w error; go Kansas, 03 Affirmed.
Brown W. the state, from Rusk county
Conviction for nm Assnuit and battery; Zoe
assessed, f25: The indictment Is good and
sufficient. No exception was taken to the
charge, nor was any tsksn 10 tss refusal
asked; besides there was no error Ia thu
charge. Affirmed.
Dunoan vs.. the state, from Bsslrop
county. Conviction for the THEFT Of horse.
The defense of alibi wss attempted to be
proven by two witnesses; tho application
for col tiIuanos to get testimony 10 prove
the ali bi, was properly refused, ~ II would
only have been cumulative, and besides
the evidence was not probably true. Al
hrmsd
Yarboroueh va. the state. from Wood
county. Conviction for The then OF n steer.
There 10 no statement OF hcts 10 the record,
sltkough thu indictment omits the word
use, this 10 not "A substantial error, because
the statute IN In the alternative. either the
word use or bcnshi II sutycent Affirmed.
MilllgAn Va. tbs state. from Tarant
county. Conviction for tho thief. of q watch
aud chain aud $40 in money, the property
OF w. ID. Brooks, the evidence IL positive Of
tha THEFT Of watch aud chain snd infer
sntially proves the thsft Of the money. Tho
charge is correct and favorable TO the d.
isndsnt. Ths courts rulings on questions
OF evidence are correct. Affirmed.
SUPREME COURT
Swan vs.. Flanagan, fr IN RBsk county.
Option by West, ]. The intetyenorat the
timo not hsing In such position as war.
rsnted Judgment by default in his favor,
that rendered was properly set aside the
consolidation Of tho cases complained OF,
not being excepted 81 and no bill Of ex-
ception saved, the error, ifany, cannot now
he noticed II is best In such csses that
this should be done that the record may
fully disclose what were tha reasons that
induced such action. aod the facts aad cir.
cumstanoe. under which the order OF con.
so,idstion was made. There is, however
in the record neither n statement of facts
nor bill OF exceptions, and az IL 10 not In
- Ag mo H. a. Nl..N A.
rights of appellant were In any manner
prejudiced, We do not deem it nscssssry to
further consider IL, Affirmed
Texas < Pacific railway va. keatlsr ct al,
rom Marion county. Opinion by Watts !
Adopted, Upon tho trial appeloes offered
70 Introduce a. ev denco ths account upon
which the suit was brought. Appellant
objected, because IL was not such an &C.
count Ne was contemplated by the
statute, which provides that sworn accounts
shall be prlma facie ovidsncs ia certain
cases. This objection was oysrrulea and
tho account read in evidence. That bsiug
all the evidence, judgment WAS rendered
for appellee. Thp only question: presented
Is, WAS this ruling corToclY Held: lmprops :
Il Texas Law Review, 337) Reversed and
iemaudei.
Nauce VS. Lindsey, from Milan county.
This defendants in error by their attorneys,
III Obedience to the order Of this court,
entered At q previous day, haying entered
IT previous day remititur releasing appel
iast from. all monied Judgment, dEmaeeg,
etc rendered in the court below, the judg'
10 snt is affirmed.
William ct NIX, Va Conner Il Lynch. from
5hscklsioro county. Opinion by Walker,
p. !. Adopted. The case Of Shyrock ct
al. We. Lstimer (57 Texas, K. GIG; Texss
Law Review, ], y 10 decisive OF this case. IL
was there held that th. place OF business
easing to be either used Ms such, OF being
prepared for such use, could no longer be
such. q Texas Law Rsview, 2S4;. Al
frmed.
Heirs of Griffith Va. Elliott, from Navarro
county. Opinion by Btayton, J., West, J.,
not sitting. Ga the trial appellants
neglected to introduce any proof whatever
Of their heirship. At aPpelloe's request the
court instructed the jury that without sach
sut. II 10 claimed that this operated such
q surprise as entitled appellant TO new
trial. The omii sion to introduce evidence
Of heirship, which the motion Tor new trial
shows, on hand sgd In court nj the time
the cause was submitted to the jury, was
known to appellants before the jury retired.
Held: In such cases 1t was the duty OF ap
pelants to ask the court for permission to re-
open the case and 10 introduce the evil
,,ence. Csres may arise in which, to pre-
wont denial OF justice, evidence should be
received at any time before the Jury hhye
retired. No such application was made
herein and knowing tho evidence would
not authorize verdict IN their favor, sp-
pellants should have taken non-suli, aud
then asked the court 10 set It ASIDE, ana II
the court had refused to do so, its ruling
woold have bnen subject to revision here.
ri Texas, $40. So Texas, 152; Graham and
Waterman on new trials, 1880. III the
omission had lot hesn known in time 10
ask permission to Introduce tho evidence
or TO take non-suit, even then, where no
fault OF the adverse party Is shown, We
could not hold the court orred in refusing
the new trial, that appsilee's proof may
not have been sufficient 20 show title OF
Mrs Elliott, in her own right, docs not AZ
feet the case affirmed.
Smith vs.. Warren, from williamson 90.
Opinion by Watts j. Adopted The real is'
sue ia the court below WAS, did N I.
owo an interest in the Judgment 81 b. y.
& p. purchased the land? That judgment
was recovered In 1877. In response to the
spseia. issues the Jury found that in 1877
b did transfer to M. d 7. an interest ia
the notes. After that 2. wrote the trial
OF the judgment from ID. TO s. and further
that NJ. & z never satisfied that judy
msni. Held. Whers 8 verdict 10 response TO
issues alone, the court cannot look beyond
The fading to sny tact apparent In the
records TO aid the judgment. [27 Texas, 1881
Ia such cas-. the verdict Is the basis OF toe
jndEu emit, which mus, be sustained by the
fodius. Ifthe interest In the notes had
been assigned to N. 4 P. after Judgment, 1t
would have carried an interest In the juds-
msnt II they owned an interest IN the notes,
AT the time OF the rendition OF the juds-
ment, they nwned al interest Ia the judg-
msnt construing the several findings to-
gether, il results that NJ. h 2. had no RICH.