The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-01-15

| Nhcrrupon APPELLANT plt IL On. ana let The
saloon by the back way. In q short while
he came back to the saloon armed With a
| shotgun. According TO the states wit
nesses as scon as he came into the SALOON
be raised his gun and fired at vanierw o.th
who vas IN the back room ot the saloon
armed with . pistol Defendant fircd AZ
him through glass door. and vanderuortn
| returned The fire from the back room.
Some Of the witnesses say that defendan,
| find again. vanicrwosth continued firms
aud the defendant retrcatei. Under this
| state o. facts appellant requested a charge
| that the evidence showed as the origin Of
the difficulty an Illegal arres, Of tho de-
PENDANT made by the marshal. Singleton. at
the Instance Of the prosecutor, Wander
worth Another charge WAS asked prsc-
ticailr the same as the above. except that
I, involved the question OF rooling time.
The arres; OF the appellant was illegal ard
the treatment he received was calculated
10 arouse ard did arouse his passions. II
81 that time he had slain Singleton orii-
naTily the homicide would not hare been Of
a greater degree than mansiaashser. From
the TIME appellant left the -aioon until his
return vas about a bali hour Under this
state Of facts we believe the court should
have given proper charge on aggravated
assault. involving the question of cooling
time
Opinion by Henderson. }.
HENRY RICE. from Caldwell county: con.
viction for raPe--Reversei and dismissed.
The Indictment charges that Henry Rice
dli then and there unlawiuliy make an as
sauit in and upoa Jennie Bradstreet, A.. fe-
male under the age Of Is years. and did then
and there ravish and have carnAi knowl-
edge o. the said Jennie Braistreet against
the peace and dignity OF the State" After
rest Of Judgment on the ground that the In
dielmeut charged no offeuse against him.
because IT failed TO negative the fact that
the alleged injured female VAS the wife OF
the defendant our statute is as follows
Rape Is the carnal knowledge OF a female
under tho age o. u years. other than the
wlte Of the person, with or without her
cnnscnt. and with or without the use of
force, threats or fraud Il has been held
that where a statute creating an offense as
a part Of the cnactinc clause contains an
exception. so that the one can not be read
w!thou, the other, then the exception must
be nesacvcd Applying this rule 10 the
statute in quest.ou-ihe exception other
than the vito Of the person occurs in the
body Of ihe eaaeting clause. The offeuse
can not b read without reading thls
herce the Indictment must negative tho
iacis that the alleged Injured female was
The wifi q defendant II may be contend
~ that the use of another name than that
borne hy the defendant sufficiently mega
lives the idea that she was his wife. There
IS nothing IN our statute requiring or com
pelling The wife - take or assume The
nanie Of her husband. she may retain her
nal8en name.
Opinion by Henderson. ].
WILLIS WILSON. from Foard county: mo-
'.o1 ~ rehFaring by the State--Granted
And case affirmed.
Motion for rehearing questions the
o. tho Law Of 1885. chang.
ins the time Of holding the district court
IN the Forty sixth judicial district. Il being |
eontenaef that the law OF 1885. II given ef
'ert from the dato Of rs approval. would be |
OF the constitution. which pro- |
y.des that every county shall have two
terms Of the district court IN Zach year |
!his ciause Of the constitution has been |
construed - the supreme court in Womack !
~ Ncfaacs, Il Texas. y. !, and II was
neld That IL the law passed by the iugisla- /
lure which II given Immediate effect would /
deprive L county OF rs constitutional two /.
terms during the year, the new Law so /
changing The holding Of COURTS would be /
postponed and not given effect until such /
lime az the constitutional two tlrms dur /
ns the year could be held. This has been (
followed hy cur court OF appeals in several /
eases. Under this construction. 10 give
siiect 10 the law Of 1885 on the LIST day OF /
APRIL, AZ provided IL the act Of 1895, would .
be 70 deprive Greer county OF one OF ils TWO
trms during the year 1888. hence he TAX
ug caeo' OK tho ncW act ahould he 4st-
oncd anal such time as IL could take ct
ect so as TO give the constitutional guar
'niy " two terms Of court TO each county
n the district during the year. and pending
no time when such uast 80 lh al.
fleet the act o. 1892 already In existence.
you'd have effect and regulate the terms
u holding court IN said district The term
n court at which this conviction was had
nag convened IN Foarl county under tho
let OF 1872. This We hold was The time au-
horiHed by law, and was the legal term OF
aid court.
Opinion by Henderson. ].
'oHN L. voYLEs. from Dallas--Appeal
dismissed.
The assistant attorney general moves to
i!smIss the appeal on the ground that no
ioilee Of appeal wss given In the court
below and entered Of record The motion
5 well taken.
Opinion by Hurt. T. J.
IN MILLER. from Grayson; conviction Cor
violating the local option law-Affirned.
On the trial appellant introduced In evil
lencc a prescription from one Or. Hays. 4
md relied upon this prescription for tho
ale OF whisky. Tho prosecutor swore that ,
lo never applied to Hays for prescription,
la: he was never examined and knew
loihins about the prescription IN question. .
Ihe circumstances show that The appellant =
Procured from the doctor tho prescription ,
o defeat prosecution. Tins VAS u pai- :
'aole fraud and furnished no protection 10 !
II pollant for selling the whisky.
Opinion By Hurt. T.. j.
ionERT MOSELY ET Al. from Roberts
eouniy--Reyersed and dismissed.
The scirc facias recites that tho appear 4,
nee bond was dated April 2, 1891 and on /
he trial the State was permitted. over ap- !
'ellants objection. 10 prove that the date = :
u the bond Was In fact May 2, 1894. There !
we're no proper ayerments In tho writ OF a
cire faeias an to mistake in the date OF !
ne bend, and In the absence OF some ale