Volume 40 — Texas Reports

<p>1. The clerk appointed by the Supreme Court on the eighth of December, A. D. 1873, is continued in office by virtue of that appointment, notwithstanding the amendments to the 2d, 3d and 4th Sections of Article 5 of the Constitution, which effected a radical change in the constitution of the court by changing the number of persons composing it as well as their tenure of office.</p> <p>2. The tenure of office of the clerk of the Supreme Court is determined by the 5th Section of Article 5 of the Constitution, which was in no respect affected by the adoption of the Constitutional Amendments.</p> <p>3. He derived his appointment, not from the members of the court as individual officers, but from their official action as the “Supreme Court.”</p>

' Appeal from Bowie. Tried below before the Hon. John C. Easton.

Tried below before the Hon. Charles Soward. This is an appeal from an order refusing the writ of habeas corpus, on the application of Johnson, who was confined pending his appeal from a conviction for assault with intent to murder.

<p>Appeal from Parker. Tried below before the Hon. Charles Soward.</p>

Tried below before the Hon. J. B. Williamson. Dennis Hudson was indicted for murder on the twelfth of September, 1873; on same day capias issued. On the 13th he was arrested, and on the 20th he was tried and convicted of murder in the first degree, with commutation of punishment to imprisonment for life. His motions in arrest of judgment and for new trial were overruled, and he appealed. The proceedings are set forth carefully in the opinion,

<p>Appeal from Polk. Tried below before the Hon. H. C. Pedigo.</p>

<p>1. When a fine is imposed on a trial for a misdemeanor, the District Court has no authority to commit the person convicted to jail until the fine and costs are paid, and at the same time issue an execution therefor.</p> <p>2. A person summoned by an officer legally authorized to execute a search warrant, to attend him armed as one of the posse to assist in its execution, cannot be convicted for carrying deadly weapons while thus employed, though life may, in company with the officer and while under his orders, have gone in a direction which he was not required to go in executing the process.</p>

Tried below before the Hon. F. P. Wood. Kay was indicted, tried and convicted for theft of a beef steer, the property of William Bagley. The case sufficiently appears in the opinion of- the court.

Tried below before the Hon. L. W. Cooper. Pridgen brought suit on an account for merchandise 'by attachment. Green Carpenter and his mother, Lavinia Carpenter, the defendants, moved to quash the attachment; pleaded -general denial, minority of defendant, Green Carpenter, and that the property levied on by attachment was not subject to execution. The motion to quash was overruled, judgment was rendered for plaintiff, and the defendants appealed.

<p>1. The pleas of former acquittal and conviction, as provided for by the Code of Procedure (Pas. Dig., Art. 8951), includes every right secured at common law by such pleas.</p> <p>8. To invoke the plea the two offenses must be in truth the same, though the indictments may differ in immaterial circumstances.</p> <p>3. The conviction or acquittal for minor offenses is, generally, no bar to greater. If, however, on a trial of the greater offense there can be a conviction of the less, then the former acquittal or conviction will bar the greater.</p> <p>4. Under an indictment for an assault with intent to murder, a conviction could not be had for unlawfully carrying a pistol; and hence a conviction for such offense would not bar the prosecution for assault with intent to murder, although brought for the same act.</p> <p>5. In a trial for an assault with intent to murder, and the evidence tended to show that the parties were in a quarrel, it is error to exclude the question, asked by defendant of a witness, whether the assaulted party was under the influence of liquor at the time. Such testimony was admissible as a fact tending to show the motive, intent, or state of mind of the accused at the time of the act for which he was upon trial.</p> <p>6. It is not admissible to ask a witness his opinion as to the danger likely to follow the use of a weapon in a particular mode. Such question the jury should determine.</p> <p>7. Where a witness was present at an affray and seized the arm of the party attacked, it is competent for the accused to ask why the witness seized his arm, as tending to explain the effect the acts of the party attacked would likely have produced upon the accused.</p> <p>8. In felony cases it is necessary to give such instructions as are applicable to every legitimate deduction from the facts,</p> <p>9. An instruction upon the law of self-defense on a trial for an assault with intent to murder, as follows, “ If the party killed had been disarmed by a third party, and was in such a condition as to be unable to inflict death or serious bodily harm to the' party killing at the time the fatal blow was struck or shot fired, then the law of self-defense will not apply,” is defective in not submitting to the jury the question whether the accused knew or could have known at the time such facts, and whether the accused had reasonable grounds for and did fear an attack.</p> <p>10. In all cases of felony the jury should be instructed that the accused is entitled to the benefit of every reasonable doubt as to his guilt fairly and naturally arising from the evidence.</p>

<p>’1. While it is true that the whole of a confession, when offered in evidence by the State," must be taken together, it does not follow that the jury must attach equal credit to every portion of it.</p> <p>3. A jury is at liberty to disregard such portions of a confession as they believe unreasonable or untrue.</p> <p>3.. See opinion in this case for facts, upon which a conviction was obtained, which were held not sufficient to authorize a verdict of guilty.</p>

<p>Appeal from Houston. Tried below before the Hon. Leroy W. Cooper.</p>

Tried below before the Hon. Henry Maney. In this case four instructions were given to the jury, on the trial, by the presiding judge. The first was a copy from the Penal Code of the definition of theft. The second defined who were principals in the commission of an offense, and was also copied verbatim from the code. The third and fourth were as follows : “3.

<p>A claim against an estate, approved by the administrator and allowed by probate court., cannot be disallowed in a collateral proceeding in the District Court. Such a claim could only be set aside or annulled in the District Court by a direct proceeding instituted for that purpose.</p>

Lavaca. Tried below before the Hon. W. H. Burkhart. Thomas was indicted at October term, 1872, of the District Court of Lavaca county, for stealing a plug of tobacco, worth forty cents, from the house of August Weller.

<p>Appeal from Montgomery. Tried below before the Hon. James Masterson.</p>

<p>Appeal from Williamson. Tried below before the Hon. E. B. Turner.</p>

Tried below before the Hon. Leroy W. Cooper. John T. Smith, the appellee, was the administrator of -the estate of Thomas Stubblefield, deceased. The intestate borrowed of the appellant, A. it. Alford, the sum of $1700, to secure which he executed his notes to Alford for that amount, and also gave him a mortgage -on his half-interest in a certain steamboat known as the Ida Reese, which mortgage was duly recorded. Stubblefield died, and the appellee became his administrator.

Tried below before the Hon. L. W. Cooper. This action was instituted by J. M. Smith as administrator upon a note executed to him by S. T. Robb, for $305, on August 24, 1864, and due on January 1, 1865, with ten per cent, interest from maturity.

<p>1. The 1st Section of the order of E. J. Davis, Governor of Texas, dated, “ Headquarters State of Texas, Office Adjutant-General and Chief Police, August, 1871,” which was directed to election and peace officers, “State guards and militia on duty,” was as follows : “I. All persons coming to vote shall deposit their ballots with the least possible delay; and after this is done, they are forbidden, under any pretext, to remain about the polls, or at the county seat (unless this is their residence), during the time of election, but shall return to their homes and usual employments ; and peace officers, State guards, and militia on duty, shall see that this is complied with.” Under this order, a citizen who resided in the country, after voting in town, was rudely ordered by a policeman to leave. He did not leave the town promptly, but was arrested and handcuffed by the policeman, though no resistance was made. Held, that the policeman was properly convicted of false imprisonment.1</p> <p>2. While an officer in making an arrest is permitted to use all reasonable means to effect it, no greater force can be resorted to than is required to secure the arrest and detention of the prisoner.</p> <p>3. See this case for facts which did not justify an 'officer to arrest without warrant, and where the use of handcuffs was neither necessary nor reasonable.</p>

<p>Appeal from Houston. Tried below before the Hon. A. T. Watts, as special judge.</p>

Tried below before the Hon. John C. Easton. Bittick and Williams were indicted, August, 1873, for an assault with intent to kill and murder one J. H. Verner.

<p>1. Since the ratification of the amendments to the Constitution, on the twenty-fourth of January, 1874, the allowance of an appeal in criminal cases by one of the justices of the Supreme Court is unnecessary.</p> <p>2. When the time for perfecting an appeal from a judgment of the District Court rendered in a criminal cause had not expired before the twenty-fourth of January, 1874, the party was entitled to an appeal, without its previous allowance by one of the justices of the Supreme Court; he was relieved by the ratification of the amendments to the Constitution on that day from the condition previously annexed to his remedy.</p>

Tried below before the Hon. Wm. Chambers. In 1868, Thomas King owned lots Nos. 4, 5, 6, 8 and 9. in block No. 6, in the town of Orange, and on August 15, he sold and conveyed them to his son, John C. King, the appellant — the deed reciting a consideration of $1000. Upon such sale, the tenant in possession acknowledged John C. King as landlord, who received the rents and profits.

<p>1. Under an indictment charging A. B. with stealing, on the fifteenth of August, 1873, “one beef, then and there being cattle,” of the value of ten dollars, it is not necessary for the State to prove value.</p> <p>2. The word beef, thus used in the indictment, means an animal of the cow species, and not beef prepared for market or use as meat, and is embraced by the general word “ cattle,” as described in the General Laws of 1873, page 80.</p> <p>3. By the act of 1873, the stealing of cattle is made a felony, irrespective of its value.</p>

Error from Houston. Tried below before the Hon. Leroy W. Cooper. Baughn and Walker having recovered a judgment against B. F. Pridgen in Houston County District Court, on March 26, 1870, had execution issued and levied on the premises in controversy, the legal title to which was at that time in Alice Pridgen, wife of B. F. Pridgen, and which she claimed as her separate property, and therefore not liable for the debts of her husband.

This was a motion by appellants’ counsel, made April 18, 1873, to reform the decree reversing and remanding the cause, rendered March 17 of the same term. lío action was taken on the motion at the former term.

Error from Houston. Tried below before the Hon. Leroy W. Cooper. Campbell sued Cundiff on three promissory notes — one payable to Mm, and the others endorsed, but the consideration of which he well knew. The defense relied on was, that the notes were, by agreement of parties at the time of their execution, payable in Confederate money. Judgment was rendered for plaintiff'. Motion for new trial overruled, and Cundiff brought the case by writ of error to the Supreme Court.

<p>Appeal from Cass. Tried below before the Hon. J. D. McAdoo.</p> <p>Alfred Cole was indicted at the August term, 1873, for the seduction of Ferriby Miles, and at the same term was tried.</p> <p>The court instructed the jury as follows: “If the evidence shows beyond a reasonable doubt, that the defendant did, by promise to marry, seduce one Ferriby Miles, and did have carnal knowledge of her, then you will find him guilty, and assess his punishment at confinement in the penitentiary for a period of not less than two years nor more than five years, or by fine not to exceed $5000/ The term seduce, as used in the above charge, is used in the sense in which it is commonly used.” ,</p> <p>' The jury found the defendant guilty, and fixed the punishment at two years confinement in the penitentiary.</p> <p>Motion for a new trial on newly-discovered evidence, and motion in arrest of judgment, were both overruled, and defendant appealed.</p>

<p>Appeal from McLennan. Tried below before the Hon. J. H. Banton.</p>

<p>Error from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>The facts are fully stated in the opinion of Justice Moore.</p>

<p>Appeal from. Fayette. Tried below before the Hon. J. B. McFarland.</p> <p>Topolanck was convicted of rape on Frances Odlozelek, and his punishment fixed at fifteen years in the penitentiary.</p>

<p>Appeal from Titus. Tried below before the Hon. J. D. McAdoo.</p>

Tried below before the Hon. George H. Noonan. Betty Jones was indicted for the murder of a babe. The evidence was circumstantial. Verdict of guilty, and punishment assessed at imprisonment in the penitentiary for life, on which final judgment was rendered, and from which an appeal was taken.

<p>Appeal from Houston. Tried below before the Hon. M. Priest.</p> <p>The facts will be found stated in the opinion delivered on rehearing.</p>

Tried below before the Hon. Samuel Dodge. Marshall was indicted for an assault with intent to kill and murder one Benjamin Lawrence. Lawrence testified, that he was steward for a hotel in Galveston, and it was the duty of Marshall, who was also an employé, to wake him up at 4 o’clock.

Error from Titus. Tried below before the Hon. J. D. McAdoo. The assignments of error which are noticed in the opinion are as follows: 1. The court erred in rendering judgment enforcing the vendor’s lien without the intervention of a jury. 2. The court erred in enforcing the vendor’s lien and ordering a sale of the land without a sufficient description of the same. 5.

Tried below before the Hon. Leroy W. Cooper. This was a proceeding instituted by Martha J. Leaverton, against appellant, to compel him to pay over two years allowance granted her as the surviving widow of James H. Leaverton, deceased, of whose estate H. C. Leaverton is the administrator.

<p>On Rehearing.</p> <p>1. The opinion and reasoning for a judgment in the Supreme Court form no part of such judgment, nor is a judgment of reversal remanding for a new trial final between the parties, nor conclusive of their rights.</p> <p>2. The vendor’s lien arises by implication as a natural equity creating a constructive trust in the vendee, that he should not keep the estate without paying for it; it arises and exists at the time of the sale, and results from the sale on credit without security.</p> <p>3. The transfer by delivery of a note secured by the vendor’s lien, payable to bearer, passes the lien.</p> <p>4. The transfer of a note payable to bearer, and secured by the vendor’s lien as collateral to secure a less sum than the note so transferred, carries with such transfer the lien, and also the right to priority of payment out of the sum realized on such collateral and the security therefor.</p> <p>5. The vendor’s lien is not lost by an unsuccessful suit by attachment upon other property, nor as between parties by any mere failure to sue.</p> <p>6. A failure to obtain satisfaction at law has never been held good cause for refusal of equitable relief.</p> <p>7. The priority of payment out of a note and its security, which passes by the transfer of a note payable to bearer, and secured as collateral to secure a less sum, can be enforced as to the security against a lien of equal standing retained by the party so transferring such collateral.</p> <p>8. See discussion of facts in legal proceedings with reference to diligence in asserting claims against an estate and against a security by one holding such claim as collateral.</p>

. Tried below before the Hon. Leroy W„ Cooper. Emeline M. Collins, as tile executrix of the will of Thomas P. Collins, brought suit in January, 1872, against Thomas F. Cook, on two notes for $514.28, which were executed, one for $500, in July, 1866, and the other for $14.28, in April, 1863. The notes were alleged to have been purchased in due course of trade. The note for $500 is as follows: “$500.

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p>

<p>Appeal from Hill. Tried below before the Hon. F. P. Wood.</p>

Error from Cameron. Tried below before the Hon. W. H. Russell. This is a suit on a bill of exchange for $5,016.90, drawn by the defendant at Soto de la Marina, in Mexico, on the fifteenth of June, 1865, on one Diego de la Lastra, of Tampico, in favor of Ysmael Rodriguez as agent and attorney in fact of the plaintiff.

<p>Error from Cameron. Tried below before the Hon. W. H. Russell.</p> <p>The facts appear in the opinion.</p>

<p>1. An administrator on the joint estates of a deceased husband and his first wife cannot appropriate the entire allowance for one year’s support made by the court, though furnished from the community property of the first marriage to the exclusive use of the children of the first marriage, if there be other minor children of the deceased husband.</p> <p>2. The fact that the mother of the children of the second marriage left the homestead, and permitted the children of the first marriage to occupy it, does not deprive the former of their pro rata interest in the amount allowed for the one year’s support, nor from recovering against the administrator on the joint estates of their deceased father and his first wife their pro rata share of the value of the use and occupation of the homestead land, all of which had been appropriated by .the administrator to support the children of the first marriage.</p> <p>3. A moneyed judgment was rendered in the District Court in favor of minors, against B., an administrator, and his securities, in which, after the entry of judgment, the following language was inserted by the court: “The said A. have during this term to make an additional showing, if he can, whether he has paid said minors said amount here adjudged to be due them, or any part thereof.” After one term of the court had intervened, the report of the administrator coming on to be heard, he excepted to the refusal of the court to hear his report read to explain why he should not pay the judgment. Held: 1. That the judgment rendered was final, and its validity not affected by the language inserted by order of the court after its entry. 3. That being a final judgment, not objected to nor appealed from under the statute, the administrator could not at a subsequent term be heard to show that he should not pay the same. 3. That the judgment against the securities, who were not parties, though irregular, will not be considered as cause for reversal on proceedings in behalf of the administrator, when that defect was not ob-. jectedto by him in the court below, nor assigned as error.</p>

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>The facts appear in the opinion.</p>

Appeals from Houston. Tried below before the Hon. Leroy W. Cooper. The cases Nos. 656, 657 and 699 were affirmed on certificates. The certificate stated that judgment had been rendered and appeal taken, following the words of the statute, in no case giving copy of judgment. Motion in each case was filed to set aside the order of affirmance and to allow the transcript to be filed. Affidavits accompanied the motions setting up causes for delay.

<p>In order to give the Supreme Court jurisdiction in cases of appeal brought up on certificate, whenever the transcript does not contain copies of the proceedings sufficient of themselves to show that this court has jurisdiction of the case, then the transcript must at least contain a copy of the judgment and a certificate of the clerk, stating the time when the appeal was perfected, and in cases of writ of error stating the time when the citation in error was served on the defendant or service of it acknowledged.</p>

Tried below before the Hon. J. B. Williamson. The original petition of Dial against Collins was filed October 26, 1865. The first trial of the case was at the June term, 1868, at which time Dial, as plaintiff, and Collins, as defendant, were the only parties to the suit. Pope’s intervention was filed December 9, 1869, some eighteen months after the first trial and first allowance of a new trial to Collins.

Tried below before the Hon. James Masterson. .David S. Files brought suit against Morris & Morris upon a written contract for the delivery of certain lumber alleged to be worth 0624.86. Plaintiff also sued out an attachment, which was, on the twenty-first of December, 1867,.levied on 20,000 feet of lumber, and upon the steam mill, fixtures, etc., the property of A. E. Morris, one of the defendants.

<p>Appeal from Washington. Tried Below before the Hon. I. B. McFarland.</p> <p>Meredith owned three detached lots in Chappel Hill, bought at different times. On one he resided, on another was his drug store and office, the other at times was cultivated and sometimes in pasture. All were purchased before the present Constitution. Meredith had been adjudged a bankrupt, and designated two of the lots as his homestead, and they were set apart as such to him in the bankrupt proceedings.</p> <p>Subsequently, Chadwick recovered a judgment against Meredith in the District Court of Washington county, October 18, 1870, on a note given in 1862, and caused execution to be levied upon the out lot, or pasture lot, and on the one with the drug store and office.</p> <p>Meredith obtained an injunction to restrain the sale, alleging that the property was his homestead, and claiming special damages. Chadwick demurred to the petition •and pleaded a general denial. The demurrer was overruled, and upon special issues the jury found that the lots were homestead, and were not worth exceeding $2000 when designated as homestead, and less than $5000 at -date of levy, and found $250 damages.</p> <p>Chadwick’s motion for new trial was overruled, and he appealed.</p>

<p>1. The probate court has the power to set aside the homestead of two hundred acres out of a larger tract owned by an estate, even before the purchase money has been paid.</p> <p>S. Such order will protect the family, even against the holder of the vendor’s lien, until it has been set aside in a direct proceeding for that purpose, with all parties interested before the court.</p> <p>8. Upon such proceeding to enforce the vendor’s lien, the proper order would be, to sell the excess of the tract over the allotted.homestead, and so much of the homestead as may be necessary to pay the purchase money.</p> <p>4. The statute (Paschal’s Digest, Article 5771) authorizes the District Court upon motion to revise and correct the proceedings of the county court relating to estates of deceased persons.</p>

<p>Appeal from Houston. Tried below before the Hon. Leroy W. Cooper.</p>

<p>1. It is error to render a judgment for gold unless the petition alleges and the evidence establishes a contract to pay gold.</p> <p>2. The liability of the securities on a replevy bond executed in proceedings under a distress warrant is limited to the amount found to he due on the claim to secure which the distress warrant was issued, and the costs of the suit; they are not liable to the extent of their bond for any other amount for which judgment may he rendered against their principal in the same proceeding.</p>

<p>1. An instrument purporting to convey land which, upon its face, discloses that it was intended as a security that title should be made to another , tract, and as indemnity against a lien on such other tract, is a mortgage, though it may recite that upon failure to discharge the lien the instrument shall “remain in full force and virtue as a deed.”</p> <p>2. On a trial involving title to land, when the question is presented whether an instrument in evidence is a deed or mortgage, it is the duty of the . court to construe the instrument in charging the jury, and instruct them as to its legal effect'.</p> <p>3. A plea in abatement will not be considered on appeal or error unless the attention of the court below was called to it and a ruling thereon obtained.</p> <p>4. When a party against whom no liability is alleged, nor relief sought, is ■ made a party defendant for purposes of jurisdiction, and a recovery is had against his co-defendants, the costs incurred by reason of such misjoinder should be adjudged against the plaintiff.</p> <p>5. See opinion for facts upon which it was held error not to charge the jury on the question of homestead.</p> <p>5. It is the duty of a party prosecuting an appeal, and of the district clerk - .who prepares the transcript, to see that the same is methodically arranged and properly indexed.</p>

<p>1. When the assignee of a note upon which suit is brought fails to allege in his petition that he acquired the saíne before maturity, it is not necessary that the defendant, who is the maker, should aver in his answer that plaintiff acquired the note after its maturity, to authorize evidence upon defenses set up in the answer which would defeat a recovery as against the original payee, or an assignee with notice.</p> <p>2. The production in evidence by a plaintiff of the note upon which he sues as assignee raises a prima facie presumption of the truth of an averment in his petition that it was transferred to him. before maturity; but no such presumption can exist in the absence of such an averment.</p> <p>3. Errors committed in the court belotw will not be made a cause for reversal of judgment unless they are distinctly specified in the assignment of errors.</p> <p>4. The exception to this rule heretofore announced, “That objections which go to the foundation of the action will be considered, though not specially assigned as error,” limited to those cases where the matters of error are so obvious that the court would be doing injustice to sanction the judgment rendered below.</p>

Tried below before the Hon; J. R. Burnett. The will of Col. Hamilton Washington, who had never married, bequeathing his estate to his only sister, Mrs. Mary Beazley, since dead, the wife of appellant, was probated in the County Court of Polk county, at its August term, A. D. 1868. That will was dated May 19, 1860.

<p>1. A motion to dismiss an appeal because no appeal bond has been filed in accordance with law will not be considered unless the motion be made in accordance with Rule 26 of this court.1</p> <p>2. All errors not assigned will be considered as waived, and when no errors are assigned the appeal will be dismissed.</p>

<p>Appeal from Gonzales.</p>

Tried below before the Hon. I. N. Everett. Paris Smith, as administrator, sold a tract of land, and it was purchased by J. Q. St. Clair, for which he gave his note, with A. BT. Erskine and A. W. Dibrell sureties. The administration was closed up, and the note delivered to appellee as guardian of certain of the heirs of deceased. St. Clair wished to sell the land, and could not do so while the mortgage for the purchase money was subsisting.

D. M. Ezell and John Ivey were, at the February term, 1874, of the Travis District Court, tried and found guilty of a felony, and their punishment assessed at imprisonment in the penitentiary. Final judgment of conviction was rendered against them, and they were committed to jail. Their application for bail, made after conviction, being refused by the district judge, they applied to this court for a writ of habeas corpus, and in their application set forth the above facts.

Tried below before the Hon. J. !P. Richardson. Jesse Scott sued G. W. Malone for damages, charging-that plaintiff had leased the farm of defendant for the year 1869, Malone to furnish plows, teams, etc., plaintiff to furnish his provisions and to cultivate the farm, and the parties to share equally the crop; that plaintiff, under the contract, planted fifty acres corn, and twenty-five in cotton, and had cultivated it well; and when the crop was nearly ready to be laid by,…

<p>Appeal from Harris, Tried below before the Hon. George B. Scott.</p> <p>This case is chiefly remarkable for having been twice decided on the questions raised by the assignment-of errors by the former court, without jurisdiction, and after lingering upon its docket without final, decision until the period for suing out a writ of error had expired, being at last dismissed because the appeal had never been perfected. The case involved the question of the. responsibility of a railroad corporation in damages for- a tort inflicted upon an employe of the company through the negligence of another, employé, to whom the party injured was subordinate; it was carefully briefed, and the last opinion rendered by the former court contained a lengthy review of all the English and American cases on the point. The former opinions and briefs of counsel are omitted as pertaining to a cause over which the court had no jurisdiction. We insert only the argument on the motion to dismiss.</p>

<p>1. A justice of the peace has no power to impose a fine for a larger amount than $100 ; nor is his jurisdiction, as defined by the act of August, 13, 1870, enlarged, in the absence of legislative action, by the- 17thj.Section of Article 5 of the Constitution.</p> <p>3. Section 17 of Article 5 of the Constitution does not affirmatively confer jurisdiction on justices of the peace, but only permits their jurisdiction to be so extended as to embrace all cases less than felony whenever the Legislature, acting under its general power of defining the jurisdiction of justices of the peace, shall so provide.</p> <p>3. When the return to the writ of habeas corpus disclosed that the magistrate in assuming to finally try the relator, who was charged with crime, had exceeded his jurisdiction, this court will examine witnesses concerning-the accusation.</p>

Tried below before the Hon. J. P. Richardson. Phil Davis was tried and found guilty of theft, on the seventeenth' of February, 1874; on the twenty-first of February his attorney, Q-. Davis, filed among the papers in the cause a paper endorsed “ protest,” in which he protested against that portion of the judgment rendered on the verdict, which recited that the defendant had announced ready for trial, as not being true.

<p>Appeal from Johnson. Tried below before the Hon. Charles Soward.</p>

<p>See an indictment for assault with intent to murder held good.</p>

Tried below before the Hon. George H. Noonan. Pefferling was indicted for art assault with intent to commit a rape upon one Mary Zinck.

Tried below before the Hon. .Leroy W. Cooper. This suit was instituted against R. R. Russell, Clinton Allen and James A. Corley, originally in a justice's court, on a promissory note executed by them to Miller for $78.30.

<p>Appeal from Ellis. Tried below before the Hon. Hardin Hart.</p>

<p>1. See facts held, insufficient to sustain a verdict of guilty of the charge of unlawfully carrying arms ata public place where people were assembled to perform a public duty. (Pas. Dig., Art. 6511.)</p> <p>2. It is necessary to prove that people had assembled, etc., where the offense is charged at a place other than those named in the act.</p>

<p>Appeal from Travis. Tried below before the Hon. J. P. Richardson.</p>

Tried below before the Hon, Henry Maney. Oscar Thompson by indictment was charged with an offense as follows: “That Oscar Thompson, on October 10, 1873, * * did willfully, unlawfully, and feloniously, and fraudulently take into his possession and drive from its accustomed range one certain black and white heifer, being then and there live stock, and that said heifer was then and there an animal of the species of neat cattle, and that said heifer was not then and there the…

Tried below before the Hon. James H. Rogers. Ben Gloss was indicted, tried and convicted for an assault with intent to commit rape, and punishment fixed at two years confinement in the penitentiary. The facts sufficiently appear in the opinion of the court.

Tried below before the Hon. •James H. Rogers. J. S. Clifton, who was mayor of Mount Pleasant, on the eighteenth of February, 1873, ordered the arrest, for violation of an ordinance, of Charles J ones, who was afterwards jointly indicted in this case with John Hensley .•and W. D. Taliaferro, for an assault with intent to murder him.

Tried below before the Hon. Francis B. Wood. This is 'an action of trespass to try title, tried at the November term of the court, 1872.

Tried below before the Hon. J. P. Richardson. On the fifth day of August, 1870, a special act was passed by the Legislature of the State of Texas entitled “An act to incorporate the International Railroad Company, and to provide for the aid of the State of Texas in constructing the same.” The Governor of the State neither approved the bill nor returned it to the house in which it originated, and the same became a law by reason of executive non-action within the…

Tried below before the Hon. J. P. Richardson. On the twenty-eighth of June; 1871, George W. Wright filed in the District Court of Travis county his petition against Jacob Kuechler, Commissioner of the General Land Office.

<p>Eli non from Bell. Tried below before the Hon. J. P. Osterhout.</p> <p>The facts are fully stated in the opinion.</p>