The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-05-08
THE HIGHER COURTS.
SUPREME COURT.


between the two adjoining sections 80
and "A of tho university leagues l, IL, Is
and l6, the disputed line In controversy
being the north line Of section 80 and
the south line OF section Al. IL is
claimed that the court erred in allowing
to be read in evidence the certified
copies from the general land Office OF
the field notes OF university land sec
tions 43, A, 3S, 46 ana 40 which appears
to DO sections adjoining or
near the disputed boundary line.
When this testimony was Of
fered, the trial had already pro-
crossed some time, the evidence had
been introduced showing pfima face
title in appellee TO the disputed locus In
quo, and his continued occupation,
claim of right, fences and improve
ments, and the like, to the premises.
Appellant had, under his plea of not
guilty, introduced evidence of title to
the disputed territory, and had offered
other competent evidence OF witnesses,
and had offered other competent evil
dence as to the matter IN controversy
and had closed. Then appellee offered
the alleged Objectionable testimony in
rebuttal. Held: the evidence
was fairly in rebuttal of
that of appellent, but if
not, the court had the right TO permit
appellee to intrOdut this testimony
whether it was strictly In rohuttal OF
appellants case or not. (Rsv. Stats. Art.
| 1903 Sayless IL Bassotts Tex. ri. IL Pr.
sec. 62Q)ArI. 1907, Rev. Stats. has always
been construed literally. The rule as
to the proper order in which testimony
should ordinarily be introduced as
stated by Mr. Greenleaf (NOl. on Ed.
| Redtields edition, soc. 460a) has been
adopted practically in this state, IL is
that, "the party is only required TO make
a prima facie case in tho opening and
may reserve Gontirmatory proof in sup
port OF tho very points made Ia
tho opening till no finds out what
point his opening case is attacked, and
then toriily it on those points" (Mahan
vs.. Wolf 81 Tex, lSS; Mckinney vs..
Thorp, 81 Tex, go; Markham VS..
Carolhers, AZ Tex, 81. Affirmed.
J. b. Roberts OF al. VS.. Nat Smith ot
al; from GraysOn county, Willie, C, j.
Whom a contract has an agreed rate OF
interest from date it will bear the same
rate after maturi y. But where a note
Is payable six months Ultor date, with
out Interest, u would require au express
| contract, In plain terms, In order that
such note beer no interest after
maturity. When expressed, the words
used by tho parties determine their
rights, and If they require construction
this is generally, il not always, in favor
| OF interest e., Pars. on Bills and Notes,
1922. The meaning of the present note
! is tho same as III the words "WithOut in
terest" had not been used. In which
event it would have borne interest from
maturity, but not from date. Whore
the terms of the note do not provide
! against interest after maturity, aud the
! circumstances Of its execution do not
| demand that IL be- construed 40 as to do.
| priye tho plaintiffs OF such interest, but
| quite the contrary, the legal ratio OF in
| terest should be allowed ON ihe uote
after maturity Affirmed.
COURT OF APPEALS.
Texas IL Pacific Railroad company Va.
j. H. Tippett; from Grays0n county.
Watts, j. Adopted. Tho correct meas
ure OF damages in a suit by a lant
owner against railroad, ioruiuries oc.
casioneu by tho burning of the grass,
sod and growing timber on his land,
which burning was caused by tue ennis,
SION of sparks rom its engines, by aud
through the negligence OF tho railroad,
is tho difference Uotweeu tho value OF
the land as IL was before and altor the
hre, the grass, etc., not being severed
from the soil, being part Of tho realty
itself, Reversed aud remandad.
George Brown w. the State, from
Morris county; conviction for theft OF
property oyer the value of $40; penalty
assessed nc two years I'm the peniten.
liary. As the statement Oi facts was not
filed in time 10 will not be considered,
and without considering such statement
no error discovered. Affirmed.
John Schwartz vs. the STATE, from
"a d.. L..
convicted If burglary. Aitur conviction
and sentence, ANA pundiug BIS appeal ha
escaped from custody and did not Volun-
taIiiy return, but was captured. These
matters are duly aud properly shown TO
this court aud upon the hearing thereof
the appeal IL dismissed.
RUFUS Bryant vs.. the State; from
Colorado county, Wilson, j. Sheriff
Townsend, a states witness, was per.
m!tted to testify that he arrested de-
iundaut on this charge (muruef in the
first degree); that while having him I'M.
der arrest he caused him TO remove his
Overshirt aud expose 10 view his under
shirt, which had spots Of blood upon IL,
and that SAID witness no that time had
warned defendant that statements made
by him might he used In evidence
against him. He was also permitted to
identify said miershiiJ and 70 exhibit
1t 60 the jury for inspection. Hs.d, The
evidence was competent, Affirmed.
Steve Lewis vs., the State; from Wal
Ter county. Hurt, !. The testimony
showed that defendants daughter and
Sanders were about go yards from de-
fen0ants house when the shooting oC-
Cured. 10 was 40 night aud they were
alone. She was sitting down aud San
ders was squatting down by her, De-
iendant came from the direction of the
house whom Sanders remarked: "Iero
comes the old MAUI" and jumped up.
She jumped up, also. Sanders took her
by the hand and said "come on" and
tried to pull her along the road with
him. She ierked loose aud about this
time defendant fred his guu OIL, loading
SAM er's pOsterior with lead. Sanders
and deiendanys daughter were to be
married shortly, but defendant did not
know this. Held; under this state of
facts the court should have charged the
jury that II from the evidence II be-
lieved that defendant had reasonable
grounds 10 believe, and did believe, that
Saunders and his daughter were or had
been engaged in iornicating, or that
Saunders was engaged in attempting to
seduco his daughter, and that thus be-
lieving, his passions were aroused TO
nhNAA u htblNU 10 W ltuuNI us ullnu Ill
capable of cool reflection, aud that un-
der the influence OF said passion, he shot
Saunders, be would not be guilty of an
assault with intent 10 murder. Re.
versod and remRnded.
Thomas Allen vs., the State, from
Shelby county; Hurt, !. To onter ;he
house OF another without his consent, at
night, with forco or by breaking, Is not
a felony in this state. To mako such
entry a felony II must ba made with an
intent to commit q felony or theft. An
indictment, TO be sufficient, must not
only allege such entry, but must set
forth the elements Of the intended of.
Tense. To sustain the indictment and
convict for burglary, not only the en-
try must be alleged, but that defendant
entered tho house with the intent and
for the purpose of committing the fell
onY or theft, as alleged in the indict.
mentment, must be proven. Reversed