The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-09
THE HIGHER COURTS.
COURT OF APPEALS.


W. j. Howard Us. the State; from Hill
county. White, p. j. Conviction for as
sault with intent to murder. The court
charged the jury il they found defend
ant guilty OF that offense they should
assess his punish nent at not less than
TWO nor more than live years IN the
penitentiary. Held: Although a charge
may be very favorable to defendant, Yet
If incorrect as TO the penalty it will be
cause for reversal. a knife is not a
deadly weapon, and when the indict-
ment specified weapon which, accord
ing to its use, may or may not
be deadly weapon, the jury
should be instructed as TO the
meaning ofthe phrase "desdly weapon"
in its application to the case made by
the evidence. 1t is error TO instruct the
jury that they must convict if they find
facts are established by the evidence
which are recited ia the charge when
other facts III evidence are not referred
TO in the instruction, which, if true,
might mitigate the otfeDse or excuse the
charge. Reversed and remanded.
Harrison Wardlow vs. the State;
Falls county. White, p. !. The in
dictment charges that defendant did
"unlawtully bet at q certain gaming
bank, to.wit: monte bank, which was
| then and there used for the purpose OF
| gaming" The indictment is brought
under Art. 3A, 2. c., as amended by
Gen. Laws II; Leg. March 5, 1881. D. IL.
| Held: If the gaming table or bank at
which the accused is charged with beu-
! ting be one of the tables or banks
specified in the statute, then it il not
necessary to allege that it was kept
or exhibited for purposes of gaming.
The Indictment was sufficient. 1t was
| not error to permit the States attorney
10 amend the indictment by inserting
the correct name in the indictment after
the defendant had suggested that hjs
name was not properly stated therein.
Affirmed.
Charles Mahle VS.. Robert Grierson et
al, from Preside county; White, p. i.
suit for damages brought by appellant
| for trespass upon unenclosed land, des-
truction OF grass and shooting off fire.
arms, whereby his cattle were brighten.
| cd from their accustomed range, and he
was caused additional expense and
| trouble in gathering and herding them,
The appellees were hunting wild ducks
at pond claimed by appellant; they
drove TO the pond IN buggy, crossing
a portion Of the land once or twice
in the buggy in goinglto aud from
tho pOhhi hppeIduJ uhu advertised
against trespassing on his land and al
the time requested defendants to desist
and leave the premises, but they re,
NAMED and fired several shots after the
! request; no cattle were in sight when
any shooting was done, and the grass
around the pond was of coarse, briny
and inferior quality which cattle would
not eat when they could get any other.
1t is contended that the evidence. il
nothing more, established appellants
right 70 recover nominal damages and
he should have had judgment there.
for. Held: The evidence brings this
case within The rule laid down by Mr..
Fields in his work on damages Opp. 6Sl,
6S2), that "there are cases, however, of
such trifling injury that no action can
be maintained therefor. The law will
afford no remedy TO useless and mali
cious litigation. Do minimis non curat
lex, is the maxim" Affirmed.
Jim Small VS.. the State, from Brown
county;. Hurt, j, Conviction for the
theft Of hog, the property of J. T,
TftZinger.