The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-04-30

. Va VI i <1Abbs tt@as iibs - II
Evans VS.. the State. Is. G. App. OPS
1t was within the discretion Of the |
trial, judge to admit testimony offered |
by the state after the argument of the |
coust had commenced. The exercises |
Of such decretion will not be revised by |
this unless it clearly appears that such
decretiOn has been abused. &c. 9. i. Art. |
Co., Nolen us. the State, Ii CT. App. 474). !
Affirmed.
NJ. A. Isbell ct al. VS.. Il. Everheart;
from Grayson county. White, p. !. ii
an affidavit in forma pauperis is made
before some officer other than the
county judge, or ii not made before the
court in session trying the case, 1t must
be presented after 1t is made TO tho
county Judge and no must certify that
the facts required TO be verified by the
affidavit had been proved before him.
When Justices court adjourns for the
term it ceases TO be q court before which
such proof can be made. II he DO no.
tary public as we'll as o justice, then,
perhaps, such affidavit might DO mrde
before him as notary, but even IN such
case said affidavit would be insufficient
unless 1t were afterward presented to
and certified by the county judge, as re-
uuired. (Hearne w. Prendergast, 30
Texas Law Review, 36O) In Warren
VS.. Wooters (52 Texas, 56S), It was
held that jurat 70 an affidavit
in forma pauperls, attested by
the clerk of the court try
ing the case, after the adjournment OF
the court for the term, is insufficient.
Kirk VS.. Ivev, 2 Texas Law Review,
2gD. Where the affidavit was made be-
fore justice Of the peace who does not
appear to have been notary public,
after the adjournment of the court, and
the same was not certified by the
county judge, it is fatally defective.
Affirmed.
N. b Irvine vs.. the State; from Mon
iague county. Wilson, j. Who're IL
was proved by the state that defendant
had pistol on his person at the place
and time charged IN tho information,
and that defendant then and there de-
clared that he was a deputy sheriff of
Montague county and had been ovor In
Jack county after O horse thlei, and
there was no evidence even tending to
disprove such declarations, they showed
that be was not guilty of the offence in
having the pistol, he being O. civil Of
fcor engaged in the discharge Of official
duty. (P. q. Art. $40; Gardner VS.. State,
SO Texas G02), and they were OK roS
gestm, constituting reasonable expla-
nation OF his having tho pistol, aud were
admissible as such, and it devolved
upon tie state to show their falsity,
which was not done in this case.
Where q requested charge is not
signed by the Judge nor by
him read to the jury, but the same jury
were permitted 10 take tho same with
them when they retired TO consider
their verdict, tho charge is considered
as refused and the jury should not have
been permitted to take it with them in
their retirement. Reversed and re-
handed.
A. c. Bell VS.. the State, from Collin
county. White, p. j. A complaint is
not required to SET forth the ofiense with
the same particularly as is required in
an information or Indictment, and
where the Objectionable part of tho in
formation can DO stricken out as sur
plu age and the remaining portions Of
tho Information sufficiently changes the
oflense, it will loo held sufficient The
word "childn as used in article 1861 g.,
Is construed to mean boy under tho
aga Of Ia years and girl under tho age
OF II years. Affirmed.
Bob White VS.. the State; from Fan
min county. White, p. j. While 1t is
required that the Indictment shall be
read TO the jury Immediately after its
organization and impanoling, yet the.e
rs no express provision of the Jaw re-
curing that this fact shOr.d he noted
Ia the Judgment, and where tho fact
that the indictment was 30 read and
that the deiendgnt pleaded not guilty
thereto Is positively stated in the charge
Of the court, IL Is a sufficient compliance
with the law. Where a witness testi-
fed on an examining trial before jus.
tice of the peace just after the arrest OF
the defendant and shortly after the
date of the alleged commission of the
crime, and such testimony was reduced
TO writing, 10 was proper for the prose-
cutting attorney to read him such evil
dence in order TO refresh his memory
AS to dates when he had stated them
differently on his trial when such wit
ness then states tho dates as testified TO
on tho examining trial to be correct.
Evidence that after the cattle were Ia
ken from Defendants pasture and
d.ven by him and another and placed
into witnesses pasture, that such other
party claimed the cattle ana stated
that defendant was employed by him as
hired hand TO assist in driving said
cattle, and evidence of similar state
ments made TO the same witness by the
defendant, arc self-serving aud are not
admissible. A defendant IL entitled 10
q distinct and affirmative and not q
merely an implied and negative preson-
tation of the issues which arise upon his
evidence in order 10 prevent the jury
| from ignoring his defences and to con-
duct them to a proper verdict If they
| find his evidence to be true. However,
improbable his evidence may seem, 1t is
his right 70 have the jury determine It's
truth or falsity in the first instance
without being torestalled by the court
| Where the proof that the defendant Is
the guilty party is purely circumstan
tial, IL is AN imperative duty of the court
To give in charge to the law applicable
TO such evidence. Reversed aud re-
manded.
Home Insurance company VS.. Eakin
from Grayson county. Hurt, !. The
generalization of property In an insur
ance policy, to work forfeiture OF tn,
right of recovery, must be so clear tina
1t Is obvious at glance, and canno
be accounted for upon tho prin
ciple that every man is nstur
ally inclined to put q favora
BILE estimate upon his own. II il no
necessary that tho generalization be in
territorial and fraudulent TO vitiato
policy. The effect is the same II don
by mistake, and the GENERALIZATION
, Auoiu w III hkohN - iAliHutohlN w VI
principal, Reversed and remanded.
IL. Prince ~ Co. Va. w. @. Turner
from raTrant county. Wilson, !. Al
allegation in an affidavit for attachment
that defendant has disposed of his pror
erty with intent TO defraud his creditors
includes the whole of mis- property; tn
whole includes every part, and II wa
not necessary TO allege that he had dis
posed of his property IN whole or Il
part. Where tho citation, ailidavi
for, and writ OF attachment each shoy
that the suit was against w, q. Turner
I, doing business under the name an
,, style of NJ. Turner, and the debt sue
for was the identical one name
I in the account, the varianc
: In the account sued on and that dC
= scrihed in the affidavit, that the accour
: was against Mrs. Nj. Turner and the II
debtedness described in the affidavit
against w. Q. Turner, doing bushes
, under the name and style of NJ. Turner
and tho return of the writ shows this
|, the property levied on was levied on q
I the property of w. &. Turner, wlthoJ
a utufIuar TINT w a. Tnruar Nxoo anip