The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-06-05
properly admitted in evidence


3 indictment alleges the time of
a. commission of the offense as ION
!. or about the Sth day of December,
1880" The time mentioned is so re-
mote that the prosecution is barred
by Limitation, and the indictment is
defective in matter of substance.
Reversed and remanded.
A. B. CARUTHERs VS.. w. C. CHERRY
EFT AL, from Hill county. Opinion
by Wilson, j.
Suit by appellant against appellees
on two promissory notes. Appellees
plead failure of consideration on ac-
count of fraudulent representations,
and put in claim in reconvention.
Appellees recovered. The court should
have instructed the jury that appellees
had the burden of establishing the
failure of consideration, and the jury
should also have been instructed that
appellee had to show that the repre-
sensations were false, as to material
matter, that they we're relied on, and
did influence appellee to purchase
from appellant. These propositions
are not clearly presented by the court,
although the attention of the court
was called to them.
Reversed and remanded.
R. G. CLAIBORNE VS.. B. D. PICKENs &
Co., from Hill county. Opinion by
Wilson, ].
Appellee sued appellant and one
Kelly in the justice court. Appellant
resides in Brown county, the residence
of Kelly being unknown, citation on
him was had by publication. Appel
liant filed plea to the jurisdiction,
claiming the privilege to be sued in
the county of his residence. The
plea was overruled. Held: This
ruling was erroneous. Under r. s.,
Art. 1913, sab. 3 and A, ETC., where
the residence of some joint defendants
is known and that of others unknown
suit must be brought in the county
where one of the resident defendants
resides. The plaintiff is not entitled
to sue a resident defendant in a
county other than that OF his resi-
dence.
Reversed and remanded.
G. T. ARMSTRONG VS.. The STATE, from
Collin county. Opinion by Hurt, j..
Andrew Armstrong was indicted for
theft as principal and G. T. Armstrong,
the appellant, as accomplish. There
is no proof that Andrew committed
the theft, hence this conviction is
wrong. If Andrew was not guilty, but
G. T. knowing not to have any right
! to the property did fraudulently adj
wise, command and encourage Andrew
to take it, then he would be a princi-
pal. In cases of doubt the pleader
should charge as principal and ac-
complete, for if he fails in establishing
Andrews guilt, but shows regarding
G. T. as above stated. then G. L. is
gas principal. But it Andrew is
guilty then the above facts constitute
&. T. an accomplish. tits emphasized
here that the State cannot be COM
PEELED to elect upon which count he
prosecute if there be proof tending to
support both.
Reversed and remanded.
L. H. MADDOX VS.. THE STATE, from
Comanche county. Opinion by
Hurt, j.
Conviction for perjury. Appellant
had testified in behalf of Clark, To-
dicted for robbery, that Clark was at
the time when the robbery was al
legged to have been committed about
four to six miles from the scene of the
robbery. The indictment in this case
pleads the proof of the perjury by al
leging that Maddox was not at the
place mentioned in his testimony at
the time indicated, blu t was at anothe
place. 1t is not alleged that Clark
was at said place, although the
whereabouts of Clark and not of Mad
dox were the material inquiry in this
Indictment, and there is no assign
ment of perjury on material fact.
But it may be contended appellant
would have been guilty ii he swore to
that which he did not know to be
true. In that case the Indictment
should have been framed differently
from that in this case. The indict-
ment is bad and should have been
quashed.
Reversed and dismissed.