Volume 41 — Texas Reports

Tried below before the Hon. J. P. Richardson. Cox was indicted for theft from a house situate in Bastrop county, within four hundred yards from the county line of Travis county.

<p>1. Escheat.—Section 20, art. 4, of the Constitution of 1869, requiring the Comptroller “to take charge of all escheated property, to keep an account of all moneys paid into the treasury and all lands escheated to the State,” is in conflict with and revokes the authority conferred by the act of 1848 (Pas. Dig., 3667) upon the District Court to order the sale of escheated property.</p> <p>2. Constructive repeal.—Quere, Whether the “ act to provide for vesting in the State escheated property (Pas. Dig., 3657 to 3675) is in force since the adoption of the present State Constitution in 1869.”</p> <p>3. Escheat, pleading.—Under said statute a petition filed hy the District Attorney to escheat property should allege that such petition is filed in the county having prohate jurisdiction over the estate of the deceased whose estate is sought to be escheated, the death of such party, and that he died without heirs or any devisee of such property.</p> <p>4. Escheated lands are not subject to location as vacant lauds, nor will a junior patent for such land held by another he aided by proceedings taken by the District Attorney to escheat snob property.</p> <p>5. Pre-emption cannot be taken on lands pending proceedings to escheat snob lands, nor could such pre-emption claim be interposed in defense against proceedings instituted by the District Attorney to escheat the same.</p>

Tried below before the Hon. Hardin Hart. McElroy, upon whom the assault was charged to have been committed, testified that he went into McEarlin’s field when he was at work and asked him for money.

Tried below before the Hon. J. P. Richardson. Ed. Fields was indicted, tried, and convicted for robbery, and bis punishment fixed at five years’ confinement in the’penitentiary.

<p>Appeal from Galveston. Tried below before the Hon. Samuel Dodge.</p>

<p>1. Indictment—Gaming.—An indictment which charges that A B “ did unlawfully bet at a certain gaming table, which said gaming -was then and there exhibited for gaming, contrary,” &c., does not sufficiently describe an offense.</p> <p>2. This case distinguished from The ¡State v. Burton, 25 Tex., 420, in which the defendant was charged with betting “at a gaming bank, commonly called ‘faro,’ ” which game was inhibited eo nomine by the statute.</p>

<p>Appeal from Goliad. Tried below before the Hon. D. D. Claiborne.</p>

<p>Appeal from Travis. Tried below before the Hon. J. P. Richardson.</p> <p>D. M. Ezell and John Ivey were-"indicted for theft of a steer. On the trial two of the defendants’ witnesses were asked by counsel for the State where they had come from when they came to testify? The objection to the question was overruled, and each answered that he had come from jail. The court would not permit those witnesses to explain the circumstances of their imprisonment, and to •state whether they were innocent of the charge preferred against them.</p> <p>In the formation of the jury defendants’ counsel insisted on having the panel filled after each peremptory challenge. This was refused by the court, and the refusal assigned for error. There was a verdict of guilty, and assessing their punishment at two years’ confinement in the penitentiary. 1</p>

<p>Appeal from Leon. Tried below before the Hon. John B. Rector.</p>

Tried below before the Hon. S. Hare. Callahan and Donally were found guilty of theft from a house, and their punishment assessed at two years’ imprisonment in the penitentiary; judgment accordingly, from which they appealed. So much of the charge of the court below and facts as are necessary to a proper understanding of the case will be found contained in the opinion.

Tried below before the Hon. W. II. Andrews. The character of the indictment in this case is shown by the syllabus.

<p>Retailing spirituous liquor, statute concerning.—The acts of 1856 and 1866, both of which prescribed a penalty for retailing spirituous liquors in quantities less than a quart without, having obtained a license therefor, were, as to such penalties, supplanted by the act of December 1,1871, which prescribed a different penalty for those, subject to the payment of an occupation tax, who failed to pay the same, and by the tax law of 1873, which made the receipt of the sheriff and county treasurer full authority to carry on the business.</p>

Tried below before the Hon. J. J. Thornton. On April 30, 1858, French Smith and Eliza, his wife, executed to White, as trustee, their deed to the Elm Spring tract of land to secure to F. G. Roberts payment of two promissory notes, with the usual conditions and power of sale. On May 3, 1859, this Elm Spring tract was sold by the sheriff of Guadalupe county under sundry executions, viz, eight, against said Smith, Holloman, the appellant, becoming the purchaser.

<p>Indictment fob bubning pbaibie.—An indictment charging that defendant .“on the first day of December, A. D. 1872, did, * * in the county of Grayson, willfully burn certain prairie, the said prairie not being his own,” held to he good.</p>

<p>Swindling.—To constitute swindling it seems that some false representations as to existing facts or past events should he made, and that mere false promises or false professions of intention, although acted upon, are insufficient.</p>

Tried below before the Hon. William Burkhart. The indictment charged that “Ellis Webb, * * * in the county of Matagorda, did willfully, unlawfully, knowingly, corruptly, and feloniously commit willful and corrupt perjury, and that then and there the case of the State of Texas against Leander Hunt, charged with disturbing religious worship at Caney church, came on to be tried in the District Court of Matagorda county, and upon the trial of said cause it became and was a…

<p>1. Homestead—trust deed.—An unoccupied lot, being community property conveyed bjr the husband to a trustee to secure a debt, does not become entitled to exemption as against the enforcement of such trust by the subsequent residence upon and occupation as a homestead of such lot.</p> <p>2. Injunction.—An injunction obtained by the wife against such trust sale held to be properly dissolved.</p>

<p>Continuance.—Whore a party charged with crime, for whom the court has assigned counsel, shows in Ins application for continuance that he applied for process for an absent witness on the day when he was brought from prison to the court, and that he did not sooner apply because, by the rules of the prison in which lie was confined, he was completely secluded from the outside world, and had been unable to procure counsel by reason of the manner of his confinement, and it appeared that the evidence detailed on ¿the trial, in connection with the facts, which it was stated the absent witness would testify to, might have produced a different result: Held, that the continuance should have been granted.</p>

<p>1. Perjury.—An indictment for perjury, which omits to charge that the oath was taken and the matter sworn to in some judicial proceeding in a court having jurisdiction, is bad.</p> <p>2. Perjury.—An indictment for perjury should state when and where the judicial proceeding was ponding in which the alleged false stat-emént was made, the name of the judge, court, or officer before whom it was made, and whether it was made during an examination or on a trial under indictment.</p>

<p>See facts held sufficient to support a verdict for murder in the second degree.</p>

. Tried below before the Hon. J. H. Banton. Late Saturday evening, in the month of June, 1869, a stranger, who gave his name as Lackey, obtained from S. M. Jones, of Limestone county, a warrant for the arrest of one Gilmore, who was charged by him with stealing two mules.

<p>1. BURGLARY.—It is not necessary that an indictment for burglary should charge the want of consent on the part of the owner or occupant qi the house alleged to have been burglariously entered, if it alleges the entry to have been with force, and the felonious intent be sufficiently charged.</p> <p>2. Burglary.—Where one is charged in an indictment with unlawfully breaking into a dwelling-house at night, with the felonious intent to commit a rape on A B, it is not necessary to charge that A B was a woman.</p> <p>"3. Burglary—Rape.—An indictment charging defendant with forcibly and unlawfully breaking* into and entering a dwelling-house at night, “with intent then and there to commit the crime of rape,” does not sufficiently charge an offense. It should charge the intent ■to commit the specific act, and under the circumstances defined by ■the statute (Pas. Dig., art. 2184) necessary to constitute the offense of rape.</p>

Tried below before the Hon. J. P. Richardson. This is a suit against the Governor of the State to recover sixteen leagues of land certificates claimed by the plaintiffs as heirs of James Power, deceased.

Error from Victoria. Tried below before the Hon. T. C. Barden. Mrs. Ellen E. Stafford, brought suit against her husband, John L. Stafford, for divorce, on the ground of cruel treatment. The instances of cruelty charged were numerous, and the verdict of the jury found most of the allegations of cruelty to be true. On the trial, Mrs. Stafford testified as a witness in regard to the acts of cruelty alleged.

<p>Appeal from Gillespie. Tried below before the Hon. J. R. Everett.</p>

Tried below before the Hon. D. D. Claiborne. This cause was first tried in the court below on the 11th February, 1874, when a verdict of guilty was returned against Raney Lott and Serena Lott, who were jointly tried. Defendants’ counsel moved for a new trial, which they obtained, and the cause was set for trial on the 12th of February, 1874.

Tried below before the Hon. W. H. Russell. Jesse Holcomb was indicted for theft from a house. The plea of insanity was interposed in his behalf. On the trial, non-professional witnesses, after giving facts that came within their observation, were asked their opinion as to the unsoundness of mind of the defendant. The verdict was guilty, and judgment rendered. Motion for new trial was overruled, and defendant appealed.

<p>Theft from a house—Evidence.—An indictment for theft from a house cannot be sustained by proof that the stolen property was taken while hanging at and outside of the store door, on a piece of wood nailed to the door, facing and projecting towards the street.</p>

Tried below before the Hon. George H. Noonan. The jury returned _ a verdict of murder in first degree, and punishment by confinement for life in the penitentiary. The defendant urged a motion for new' trial, because the court erred in the fifth charge given to the jury, in regard to the law, and because the verdict was “ contrary to the law and the testimony.” This motion was overruled, and notice of appeal given.

Tried below before the Hon. W. H. Burkhart. Beth Townsend and two others were indicted in 1872 for an aggravated assault and battery upon Augusta and Julia Addicks, females. Appellant, March 11, 1874, applied for a continuance for the testimony of three material witnesses residing in Williamson county.

<p>1. Gaming.—Betting, of itself, is not a violation of the Penal Code. It is the betting at games, tables, or banks which are prohibited, that constitutes the offense of gaming.</p> <p>2. Gaming tables.—The keeping or exhibiting of a table or game, licensed and permitted by law, does not come under the penalty attached to the keeping of a gaming table kept or exhibited for the purpose of gaming.</p> <p>3. Betting on a ten-pin alley.—Betting on a licensed ten-pin alley did not constitute an offense prior to the act of 9th April, 1873.</p>

<p>Embezzlement.—See an indictment for embezzlement, held to be sufficient.</p>

<p>Appeal from Fannin. Tried below before the Hon. W. H. Andrews.</p>

Tried below before the Hon. W. H. Andrews. On 12th January, 1874, Page, Peel & Moran sued J. H. Payne for a balance due upon a bill of goods set out in the petition and furnished upon the order of Payne, as follows: “Payne’s Store, Hunt Co., “April 19th, 1871. “ Messrs. Page, Peel & Moran. “ Gents: Please fill the following order, and charge to my account. ******* “ Prompt payment will be made for above goods and also for what is due you on back accounts.

Tried below before the Hon. W. H. Burkhart. Appellee was indicted for betting on a “gaming table” * * commonly called a “billiard-table.” The indictment was quashed, and the District Attorney appealed.

<p>1. Continuance.—An application for continuance, made by one indicted for murder, which is based on the absence of a witness by whom defendant expected to prove that deceased had been seen in bed with defendant’s wife, and that the fact had been communicated to the accused “a short time before the killing took place,” is too vague with reference to time, and is insufficient.</p> <p>2. Continuance.—Such evidence could only be material to reduce the offense from murder to manslaughter, by establishing “adequate cause,” and the time which intervened between the communication of the fact to the defendant and the homicide should be definitely stated, and with such certainty as to enable the court to determine whether there had been reasonable time for passion to subside.</p> <p>S. Change of venue.—After an application for change of venue has been made, under art. 2994 of Pas. Dig., on account of prejudice, the court may examine other witnesses for the purpose of determining the truth of the matters alleged in the application,</p> <p>4. Change of venue.—The issue presented by an application for change of venue involves not only the general character for truth of those who make the supporting affidavits, but also their means of knowledge, their intelligence, and their relation to defendant. It may also embrace the notoriety of the particular offense of the party slain, or of the defendant himself, and an inquiry into the settled conviction of a large portion or the whole of a community, as to particular offenses or classes of persons.</p> <p>5. Change of venue.—On application for change of venue based on alleged prejudice, the affidavits of credible witnesses who swear affirmatively are much more reliable and should have much more weight than those which are merely negative in their character.</p>

<p>Appeal from Milam. Tried below before the Hon. J. M. Onins.</p>

<p>ItroiCTaiENT.—In an indictment for stealing from the house of A an article which belonged to B, it is not necessary either to allege or prove that the article stolen was either under the control of or belonged to A.</p>

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

<p>Unlawful stock branding.—An indictment will lie for unlawfully branding a colt whose owner is unknown.</p>

Tried below before the Hon. James A. Ware. Wm. Longworth was indicted in December, 1873, the indictment charging that “ one A. F. Dignowitty did intrust to the said William Longworth, as bailee, a certain gun, to wfit, a Sharp’s improved carbine, of the value of thirty dollars, for the purpose of taking from Bracketsville, in Karnes county, * * to Wilson county, in the State of Texas, and back from said county of Wilson to the said town of Bracketsvillc, * * * said gun being…

<p>Appeal from Cameron. Tried below before the Hon. Wm. H. Russell.</p>

<p>Bail-bond securities.—The securities on a bail bond or recognizance cannot be heard to avoid their liability on account of a defect in the indictment against their principal; and when the bond is conditioned for the appearance of the principal “ to answer and await the action, &c., and stand trial upon such bill of indictment as may be' preferred against him for swindling,” the sureties cannot avoid liability, though tlie indictment for swindling returned by the grand jury was so defective that no conviction for swindling could be allowed.</p>

Tried below before the Hon. E. B. Turner. R. D. Smith was indicted on the 7th of November, 1873, the indictment charging that he “did, on the 15th day of October, A. D. 1873, * * unlawfully and willfully take into his possession, and drive, use, and remove from its accustomed range, certain live stock,” &c. The second count charged an intent to deprive the owner of the value, &c. The defendant attempted to explain his possession of the stock, by shoxving his purchase from…

Error from Lamar. Tried below before the Hon. Robert H. Taylor. The case ivas tried in the court below on the 20th November, 1872. Thompson, Morris & Co. filed tlieir applications for writ of error on the 25th of January, A. D. 1873; citation issued same day, and on the 6th of October, 1873, the statutory appeal bond was executed by them. The motion to dismiss, filed on the 26th J une, A. D. 1874, was based on the absence of a writ of error bond.

Tried below before the Hon. S. B. Newcomb. On the 23d of January, 1874, George B. Lyles was indicted for the murder of José Maria Gamboa. Held: -while Brown, in front of him, demanded his pistol, which witness gave to Ambrosio Acosta; that he then ran to his brother, but was outrun by Brown, who took the rifle of deceased.

<p>Circumstantial evidence.—The jury was charged, in instruction Wo. 4, that a reasonable doubt “ is not a mere fanciful or imaginary one, but grows out of the testimony, or the want of it, and leaves the mind in that condition, that after full investigation of all the facts detailed in evidence, you cannot say you have an abiding conviction that he is guilty of the charge.” Instruction Wo. 5 was to the effect that a conviction might be had on circumstantial testimony, “hut the circumstances proven must justify full belief, according to the rule of certainty defined in charge Wo. 4: Held, that there was no error in the instructions.</p>

<p>1. Jurisdiction of justice of the peace.—Justices of the peace have no jurisdiction to try misdemeanors for which the flue imposed may exceed one hundred dollars.</p> <p>2. Aggravated assault—Limitation.—An aggravated assault is not barred by limitation until two years after its commission.</p>

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

Tried below before the Hon. E. B. Turner. Bawcom was indicted for driving and removing cattle from their accustomed range “ without the consent of the owner, and with intent to defraud the owner,” &c. The record recites, that the jury “were duly impaneled and sworn to try the issue joined between the parties upon defendant’s plea of not guilty,” &c. Upon the trial, J. C. Borrid, for the State, testified that, on the 1st April, 1873, or about that time, he saw defendant, who…

<p>Appeal from Victoria. Tried below before the Hon. T. C. Barden.</p>

<p>1. Charge of court—Weight of evidence.—On the trial of a criminal charge, an instruction to the effect that, if the evidence could not be reconciled, the jury should decide who of the witnesses were entitled to the greater credibility, is not a charge upon the weight of evidence, nor does it instruct the jury to do anything incompatible with their duty under article G40 of the Code of Criminal Procedure.</p> <p>2. Reasonable doubt.—The failure of the court to instruct the jury to acquit, if they had a reasonable doubt of defendant’s guilt, will not be ground for reversal in a case where the evidence clearly establishes the defendant’s guilt.</p>

<p>Appeal from Lamar. Tried below before the Hon. J. C. Easton.</p>

<p>Appeal from Lamar. Tried below before the Hon. J. C. Easton.</p>

<p>1. Trial by jury.—When the evidence on the trial of a criminal cause tends to establish different and opposite conclusions, it is for the jury to And their verdict upon the evidence which, in their judgment, is entitled to most credit; and if the judge who tried the cause has refused to set aside a verdict of guilty found on such evidence, the conviction will not be disturbed in this court.'</p> <p>2. CibcumstantiaXi EVIDENCE.—To authorize a conviction on circumstantial evidence, the circumstances should not only be consistent with the prisoner’s guilt, but inconsistent with any other rational ‘ conclusion or reasonable hypothesis consistent with the facts proven.</p>

<p>Appeal from Red River. Examination below before the Hon. J. C. Easton.</p>

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

<p>1. Proceedings against a railroad company to forfeit its charter.—-An information by the District Attorney against a railroad company, for the purpose of forfeiting its charter, will not lie, save for an act made a cause of forfeiture by its charter, or for willful abuse or improper neglect on the part of the company.</p> <p>2. Election of remedies—Practice.'—Such remedy would not lie on complaint of a stockholder who had instituted proceedings to enforce his rights against the company. Such former suit is an election of remedies conclusive against him.</p>

Tried below before the Hon. M. L. Crawford. The indictment in this case charged that M. Heldt, on December 1, 1872, “ did unlawfully, arid contrary to the special statute in such case made and provided, approved May 23, 1871, sell intoxicating and spirituous liquors to divers persons to the grand jurors unknown, within less than two miles of Douglassville College, in said county.” The defendant excepted to the indictment, because it did not state to whom the liquor was sold,…

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

<p>Appeal from Smith. Tried below before the Hon. Z. Horton.</p>

<p>1. Indictment tor theft.—An indictment for theft, charging that the defendant “did feloniously steal,” sufficiently alleges that the taking was 11 fraudulent ” to support a conviction.</p> <p>2. Misnomeb.—A mistake in the Christian name of defendant, where the name' is correctly given at first, does not vitiate an indictment.</p> <p>.3. Evidence of taking in theft.—An indictment for theft of oxen is sustained by proof of the fraudulent killing of the oxen and selling their hides.</p> <p>'4. .Aspobtation.—The statutory definition of theft omits the words “carried away,” and in doing so dispenses with the necessity of proof of asportation, as was required at common law.</p>

<p>Accessory—Trial.—When the principal in an offense dies before he has been tried, the accessory cannot be tried. The only exception to the rule which requires the principal to be first tried, is where he has escaped, in which event the accessory may be tried.</p>

<p>Appeal from Bexar, Tried below before the Hon. Geo. H. Noonan.</p>

<p>Appeal from Bastrop. Tried below before the Hon. W. P. Richardson.</p>

The r'elator was indicted for horse stealing at the September term, A. D. 1869, of the District Court of Travis county. He was tried October, 1871, found guilty, and his punishment assessed at fifteen years’ confinement in the State penitentiary.

<p>Appeal from Red River. Tried below before the Hon. John C. Easton.</p>

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

On the 25th of October, 1872, Monroe Ishmael executed a bond in the sum of one hundred dollars, with S. S. Ishmael and W. R. P. Ishmael as his securities, conditioned that he would appear “ at the February term, 1873, and remain from day to day,” &c., to answer an indictment for unlawfully using an estray. At the trial, Monroe Ishmael appeared by counsel, and being found guilty, his fine was assessed at fifty dollars.

Tried below before the Hon. H. C. Pedigo. It appeared from the testimony that on July 21, 1870, the deceased, Robinson, had a fight with one Simeon Gray, in which Gray was mortally wounded. Robinson fied to his house, where the sheriff of the county was boarding, and surrendered to the sheriff) claiming his protection. Robinson would have left town that night, but was prevented by the sheriff) who assured him of protection.

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

<p>Appeal from Smith. Tried below before the Hon. Z. Norton.</p>

<p>1. Fraud—Parol testimony.—In a suit on a contract for the sale of an engine, reciting that “the said Hearne, accepting and receiving the same, having fully and satisfactorily examined it,” the vendee is not estopped from alleging and proving in defense that plaintiff had had the engine newly painted andpolished, and had its defects so concealed that it looked new, whereby defendant was induced to sign such contract.</p> <p>2. Evidence of fraud.—It is competent to prove fraud in a contract, although it be reduced to writing and is silent on the subject to which the fraudulent representations referred.</p>

<p>Appeal from Lamar. Tried below before the Hon. J. C. Easton.</p>

<p>Error from Washington. Tried below before the Hon. I. B. McFarland.</p>

Error from Austin. Tried below before the Hon. Livingston Lindsay.

Error from Johnson. Tried below before the Hon. Charles Soward. Trespass to try title, by M. J. Dixon and her husband, E. A. Dixon, claiming as sole heir of W. D. Merriweather, to recover 1,280 acres, the head-right of the ancestor, W. O. Merriweather.

<p>1. Judgment conclusive.—Where the court is substituted for the jury, its decision upon the facts has the same conclusive effect as the verdict of the jury.</p> <p>2. Appeal.—In such cases, unless the judgment of the court is without evidence, it will not be reversed on appeal.</p>

<p>Partition op estates of deceased persons.—Plaintiffs brought suit for a partition, claiming in right of their mother, who died in 1862, against the administrator of their father, who died in 1867, and his widow and child by a second marriage: Held, that to entitle plaintiffs to a partition as against the survivor of the community estate, it was incumbent to allege facts showing that a general distribution of the estate was ready to be made, and that after such partition sufficient assets were left to satisfy the community debts.</p>

<p>1. Theft—Charge of the court.—Upon a trial for theft of a hog, it is not error to instruct the jury that “killing the property of another is a sufficient taking to constitute theft, if the killing was done with the intent to deprive the owner of it, and to appropriate it to the use of the person killing.”</p> <p>2. Asportation—Theft.—The “ carrying away,” or “asportation,” which constitutes an essential element in larceny at common law, is not necessary, under our statute, to complete the offense..</p>

Tried below before the Hon. J, B. Williamson. The defendant was convicted at May term, 1873, for theft from a house óf a pipe of the value of two dollars; the punishment fixed at two years in the penitentiary.

<p>1. Information.—An information, filed on the 24th day of December, 1873, charging that a simple assault was committed by AB “on the -day of December," 1872, is not sufficient, though the affidavit accompanying it charged the offense to have been committed “on the 14th of December,” 1872. The allegations of the information are to be taken most strongly against the pleader, and the offense was barred in one year.</p> <p>2. Information—Certainty.—But such an information is also fatally defective in not alleging a day on which the offense was committed. This must be stated, though it is not necessary generally to prove that the offense was committed on the particular day stated in the information.</p>

<p>Appeal from Galveston. Tried below before the Hon. Samuel Dodge.</p>

Tried below before the Hon. A. S. Broad us. The appellants were arrested and tried before a justice of the peace for an aggravated assault on Edward H. Storms. They were found guilty, and fined for a simple assault. They were afterwards indicted for an aggravated assault, the indictment being founded on the same act for which they had before been tried.

Tried below before the Hon. J. N. Everett. Peter Corn was indicted for theft of a steer on 28th February, 1873. The evidence on the trial is set out in the opinion. The charges complained of are as follows : “4. All persons who are present when an offense is committed, and who knowingly aid or encourage its commission, are alike guilty of the offense. “ 6.

<p>Charge op the Court—Murder.—On a trial for murder, the law applicable to the case must be distinctly set forth in the charge, whether asked or not,' and a failure to define murder in the second degree, in a case where the jury, upon the evidence, might have found the defendant guilty of the less offense, will be cause of reversal, whether the instructions were asked or not.</p>

Tried below before the Hon. F. P. Wood. This was an action of trespass to try title, brought by Mills & Halbert against Irion and others, to recover a tract of land in Navarro county, to which both parties claimed . title under Henry Griggs, in whom they agreed the title was vested prior to 1863. To show title in themselves, Mills & Halbert gave in evidence— 1.

<p>Error from Bexar. Tried below before the Hon. Geo. H. Noonan.</p>

<p>Appeal from Bed Biver. Tried below before the Hon. John C. Easton.</p>

<p>Appeal from Robertson. Tried below before the Hon. J. B. Rector.</p>

Tried below before the Hon. J. P. Osterhout. On.the 3d day of April, 1871, Frank Gray, desiring to establish a stock ranche in San Saba county, purchased from Henry Pendarvis the Carl Weise 640-acre survey, for which he paid §640.

<p>Appeal from Fayette. Tried below before the Hon. I. B. McFarland.</p>

<p>Appeal from Fayette. Tried below before the Hon. I. B. McFarland.</p>

<p>l. Homestead—When community not subject to forced sale TO SATISFY DEBTS ON DIVORCE OF the owners.—Judgment was rendered divorcing A from his wife, B, and directing the sale by a commissioner of the land described as a homestead and as community property, and directing the partition of the proceeds between A and B. Another judgment was rendered on the same day by the same court in favor of D and against A, on a community debt owing by A, and the land described in the divorce judgment as a homestead was levied on and sold under execution by the judgment creditor, on the same day that the same land was sold by the commissioner. In a controversy between the purchasers at the two sales which involved the title, it was held, that being community property, if not a homestead, the land was liable to payment of community debts contracted before the institution of the suit for divorce.</p> <p>2. If the property was a homestead, it was not subject to forced sale, and a creditor could have no ground to complain that the court decreed the sale and distribution between the parties entitled to it.</p> <p>3. It was error to exclude evidence offered by the purchaser at execution sale to show that the land was not a homestead.</p>

Tried ‘ below before the Hon. M. D. Ector. Mrs. Barnes was charged with the murder of her husband, in the county of Harrison, on the 4th day of February, A. D. 1874. On the morning of the day on which the murder was committed, Barnes was seen quite drunk in a grocery, in company with a negro about five feet seven inches high, who was sober. Barnes being unable to walk, was carried to his home by this negro, assisted by one of the witnesses.

Tried below before the Hon. L. Lindsay. The age of the boy found guilty in this case of an assault with intent to commit a rape does not appear from the statement of facts. The age of the female child upon whom the assault was alleged to have been committed was less than four years. The punishment of the defendant was assessed at three years’ confinement in the State penitentiary.

Tried below before the Hon. J. B. Williamson. In July, 1871, McAfee sued Robertson for work and labor done at his wife’s request, setting out the following items: 5,500 new rails---------------------------------------$55 00 18 days’ hauling with wagon and two yoke of oxen, and two hands, $5 per day----------------------- 120 00 Cash, October, 1866------------------------------ 5 00 1,900 panels of fence reset, 50 cents per hundred rails for taking down and putting…

.Tried below before the Hon. M. Priest. Rickets and wife instituted suit in trespass to try title for the one-half interest in a tract of land adjacent to the town of Rusk, claimed as their homestead. The defendant, Woolfolk, pleaded not guilty; that she was a bona fide purchaser for value, &c., and set out her claim of title back to a deed from the plaintiff to Armstrong & Gibson, from them to F. M. Hicks, and from Hicks and wife to defendant.

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

<p>1. Assignment of error.—On appeal from an order of the District Court approving a claim against an esate, it is a sufficient assignment to allege that the court erred in approving the claim.</p> <p>2. Practice in District Court in probate matters—See this case for discussion of mode of procedure in urging and resisting claims presented for allowance against estates.</p> <p>8. Appeal in matters of probate.—An administrator may appeal from an order of the District Court approving a claim which lie has allowed, and which he wishes to controvert for reasons subsequent to such allowance.</p> <p>4. Fraudulent alteration of promissory note—The fraudulent addition of a name to a promissory note by the holder after the deatli of one of the makers, and after his administrator has allowed the claim, may be urged by such administrator against the approval of such note as a claim against the estate; and such alteration is good ground for disapproval; and on appeal the action of the District Court will he revised, and the order disapproving such claim he made in this court on testimony showing such fraudulent addition of such name.</p>

<p>Error from Harrison.</p>

Tried below before the Hon. J. B. Williamson. Elizabeth Woodall and her husband, A. R. Woodall, joined pro forma, filed their petition in the District Court of Harrison county on the 27th July, 1871, stating that Elizabeth, previous to her marriage with A. R. Woodall, was the surviving wife of Edward Smith, deceased, and praying to have a homestead of two hundred acres of land therein described set apart to her and her two children, who were also the children of Smith.

Tried below before the Hon. M, D. Ector. Art. 773 of the Penal Code is as follows: “ If any person has given or shall hereafter give any deed of trust or other lien in writing upon any personal or movable property, and shall remove the same or any part thereof out of the State, or shall sell or otherwise dispose of the same, with intent to defraud the person having such lien, either originally or by transfer, he shall be punished by confinement in the penitentiary not less…

<p>1. Indictment—What a sufficient description of an offense.— An indictment sufficiently describes an offense by employing the language of the. statute, whenever the statute sets out in the definition of the offense the specific facts constituting it, and does not describe the same by the. use of generic terms.</p> <p>2. Indictment need not contain negative averments.—An indictment need not by averments negative the existence of facts which, under the statute, would relieve the act charged of criminality.</p> <p>3. Threat to kill, when not qualified.—A threat to kill another, unless the party threatened would do or leave undone something which the party threatening had no right to require, is, in its legal effect, an unqualified threat.</p>

Tried below before the Hon. M. Priest. This suit was originally begun by J. P. Douglass, as guardian for F. M. Thompson, -who was alleged to have been non compos mentis, and of Fannie Marshall, a minor. During the pendency of the suit F. M. Thompson died, and Fannie Marshall married E. W. Jones, after which the suit was prosecuted in the name of E. W. Jones and his wife, who thus became sole claimants.

Tried below before the Hon. Charles Soward. The indictment charged that Samuel Shadle took from the possession of T. C. Moore “one horse, one saddle, and one bridle, &c., being then the property of the said T. C. Moore, without the consent of the said T. C. Moore.” The exceptions to the indictment were sustained. The opinion sufficiently indicates their character.

Tried below before the Hon. J. B. Williamson. Knight & Co., in 1870, brought two suits against the Southern Pacific Railroad Company in the District Court of Harrison county.

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

<p>1. Affidavit to petition for injunction.—An injunction granted on petition, verified by oath of an attorney “ that the statements in the petition are true when made upon his own knowledge, and when made upon, information of others he believes them to be true,” and in which it does not appear that any of the statements were made upon the knowledge of the affiant or upon information of others, should be dissolved on account of want of sufficient affidavit to the truth of the petition.</p> <p>2. Injunction—Practice.—It is error tó dismiss a petition for injunction which contains sufficient allegations to warrant relief, because of a defective affidavit. The petition should be held for hearing on the merits.</p> <p>3. Voidable judgment.—A judgment rendered in a case removed by certiorari to the District Court, in favor of two defendants, where one is dead and not represented, is voidable by a proceeding taken in the court where rendered. ,</p>

<p>Appeal from Smith. Tried below before the Hon. Z. Horton.</p> <p>Submitted on motion to dismiss for want of jurisdiction.</p>

Tried below before the Hon. M. D. Ector. Pamina Oliver, joined by her husband, sued,Thomas W. Robertson, the surviving husband of the deceased mother of Pamina Oliver, and alleged in her petition that her mother died leaving surviving her children, the issue of the marriage between herself and Robertson, whose names were given, but who were not made parties defendant.

<p>Indictment fob injbby to animals must charge the amount of the damage done.—An indictment charging the defendant with willfully shootinga domestic animal, with intent to injure the owner, must allege the amount of the injury done the owner by the act.</p>

Tried below before the Hon. J. B. Williamson. Twenty-eight years have elapsed since the institution of this suit, which has survived the judge before whom it was brought and all the attorneys originally employed. The action was in trespass to try title, brought by appellant's intestate against Shaw and others to recover a league of land in Harrison county, granted to Henry Harper on the 13th October, 1835.

Tried below before the Hon. Richard S. Walker. Henry Hunt, in 1874, was a farmer residing in San Augustine county. On the night of March 7, 1874, about 10 o’clock, while sitting in his room with his family around him, he was murdered. The murderer used a shot gun, with which he fired at Hunt through an open door. Lew Garrett and James Lilley, both freedmen, were indicted for the murder, the first as principal and Lilley as an accomplice.

Tried below before the Hon. M. M. Bonner. Brown, McCorcle, and Allen sued S'naw for $250 and damages upon the following case: On October 20, 1871, judgment was rendered against plaintiffs on scire facias on a bail bond for $5,000. In September, 1872, Governor E. J. Davis remitted the forfeiture, except $250 and all costs of the officers. Hovember, 1872, the clerk issued an execution for the $250 and costs, amounting to $25.60.

<p>1. Construction op Statutes.—When the enacting clause in a statute is general in its terms and objects, and a proviso is afterwards introduced, such proviso is construed strictly.</p> <p>2, Testimony op parties to suit.—A plaintiff may he admitted to testify to declarations of a deceased partner of the defendant, where suit had been brought against the firm, and one of the parties died pending the suit, and his representatives were not made parties.</p> <p>3. Exceptions in statute.—The exceptions (Pas. Dig., art. 6827) excluding certain parties from testifying on account of interest will not be extended by implication.</p> <p>4. Bailment—Conversion.—A refusal by the bailee to deliver goods on demand of the owner, unless on payment of certain claims of the bailor or bailee, inconsistent with the plaintiff’s title, would be equivalent to an absolute refusal, and would amount to a conversion.</p> <p>5. A bailee cannot relieve himself from responsibility to the owner by redelivery to his bailor, after demand and notification by the owner.</p>

Tried below before the Hon. Z. Norton. Esther Longley, as widow of J. W. Longley, and as next friend of George W. and John W. Longley, minors, sued Willis Roberts, alleging that she was widow and the minors were the children of J. W. Longley, deceased; that on October 1, 1864, she, acting in her fiduciary capacity, traded to the defendant two accounts due by the trustees of the Baptist Church to the deceased, J. W. Longley, for eight hundred and seventy dollars, for which…

Tried below before the Hon. John Q-. Scott. Charles Little and Thomas Little sued in the District Court of Henderson county H. H. Kirkland upon the following obligation: “ SI,500.

<p>Appeal from Burleson. Tried below before the Hon. A, S. Broaddus.</p>

<p>Appeal from Smith. Tried below before the Hon. M. H. Bonner.</p>

Tried below before the Hon. A. S. Broaddus. Crow, convicted of an aggravated assault upon an indictment charging “that John Crow and David Doss, * * on the 5th day of March, A. D. 1873, * * did then and there, in and upon the body of one Keziah Griffin, unlawfully, willfully, and maliciously make an assault, and with a certain pistol in the hands of him, the said John Crow, then and there had and held (the said David Doss then and there present aiding and assisting) to, at,…

Tried below before the Hon. John G-. Scott. Suit by Sarah J. Price against B. F. Blount upon two promissory notes, alleged to have been executed by Blount for the purchase money of two hundred acres of land sold to him by Mrs. Price, aud conveyed by warranty deed, January 9th, 1871.

<p>1. Evidence op acts op several defendants in theft.—On trial upon an indictment against several defendants, evidence of the part performed by each may be introduced. It is not necessary to specify in the indictment the acts of each party which, taken together, constituted the theft.</p> <p>2. Possession in prosecution for theft.—The fact that the accused was seen walking along a road in the direction of his house, which was a short distance off, within twenty steps of a wagon in which was the stolen property, does not show that the property was in his possession or under his control, or that he aided in stealing it; and a verdict upon such evidence should be set aside.</p>

<p>Error from San Augustine. Tried below before the Hon. M. Priest.</p> <p>Suit on promissory note brought by William Garrett against John H. Brooks. The note was for §400 gold, signed by Brooks, and bore daté April 1, 1865. Brooks pleaded a failure of consideration, and alleged that there was an error in the date of the note; that it Was executed on the 5th July, 1865, for the transfer on that day by Garrett of his right, title, and interest in a negro man named Mills, then sold as a slave, and that when said note was executed, property in slaves had ceased to exist in Texas. To this answer exceptions were filed, which were overruled.</p> <p>The court instructed the jury that slavery had ceased to exist in Texas on the 19th day of June, 1865, and that if they found that the note was signed on the 5th day of July, 1865, they would find for defendant, but if it was signed on the 1st of April, they would find for plaintiff.</p> <p>Verdict for defendant.</p>

<p>Appeal from Kaufman. Tried below before the Hon. M. H. Bonner. '</p> <p>Perry was indicted and convicted for theft of a steer. His punishment was fixed at a fine and imprisonment in the county jail.</p> <p>The testimony showed that he was found in the possession, with two others, of a drove of stolen cattle, in which drove was the steer for theft of which he was charged.</p> <p>Perry, when found with the cattle, said he was employed by Graham & Basham, and did not want to stop the cattle, unless the party arresting him would be responsible to Graham & Basham.</p> <p>It appeared that Perry had had no connection with the herd until after it had been gathered; that he had been hired; that he had only been with the herd from the time they had left the pen; that he was of good character. The two others, Houston and Barrage, claimed that they too were hired by Graham & Basham. It also appeared defendant had been employed as a hand in another herd, about two weeks before, Under circumstances of suspicion.</p> <p>Many exceptions were taken, but are not noticed in the opinion.</p>

<p>Appeal from Wise.</p>

<p>Appeal from Kaufman. Tried below before the Hon. M. H. Bonner.</p>

<p>Appeal from Gaudalupe. Tried below before the Hon. James A. Ware.</p>

<p>1. Assault with intent to murder.—When one charged with committing an assault with intent to kill and murder is shown to have given the first insult and begun himself the attack, which finally resulted in the effort on his part to kill, he cannot mitigate the offense by showing that he attempted to kill under the immediate influence of sudden passion, caused by injuries received from his adversary during the rencontre.</p> <p>2. Indictment.—An indictment for an assault with intent to kill and murder, which charges that “A B did then and there level, aim, point, shoot off, and discharge the said pistol in, at, to, against, and upon the person of him, the said O D,” and in other respects regular, is good.</p>

<p>Appeal from Lamar. Tried below before the Hon. John C. Easton.</p>

Tried below before the Hon. James A. Ware. Agitone was charged in the indictment with making an assault on Samuel P. Baseom with intent to murder him. The testimony disclosed the following facts: Agitone and his companion were eating their dinner in camp when Bascom approached him and indulged in cursing and abusing him. Upon this Agitone told Baseom not to curse him, whereupon Bascom turned and walked toward a gate at which his gun had just been left.

<p>Appeal from Rockwall. Tried below before the Hon. M. H. Bonner.</p>

Tried below before the Hon. M. H. Bonner. Howery was convicted upon a charge in the indictment “that F. Howery,'on the 1st day of October, 1873, in the county of Rockwall, did unlawfully keep a cue alley table for the purpose of gaming.” The indictment contained a second count, which was defective. The facts appear in the opinion.

<p>Appeal from Marion. Tried below before the Hon. James M. Rogers.</p>

Tried below before the Hon. James H. Rogers. Thomas Gordon was indicted November 12, 1873, for theft of sixty dollars money, the property of S. P. Adams.

Tried below before the Hon. John C. Easton. The facts of this case are only important when considered with reference to the charge of the court. This contains no reference to the facts in evidence, but covers some seven pages of the record, and, consisting chiefly of extracts from the code, is omitted.

<p>1. Criminal procedure.—Held, that there is no authority to inquire whether an indictment was based on sufficient proof, or to inquire into the form of the oath administered, or by whom administered.</p> <p>2. Charge op Court—Confessions.—Confessions should be left to the jury, to be considered as other evidence; and a charge upon the weight of such evidence, “ that voluntary confessions are to be regarded as the strongest proofs of the lawHeld, to be error.</p>

Tried below before the Hon. Silas Hare. F. M. Dyer was indicted, the charge being that he, fraudulently intending to swindle one John Bodine, did unlawfully, falsely, and fraudulently pretend to the said John Bodine that a certain writing obligatory, which he, the said F. M. Dyer, then and there fraudulently and falsely pretended to be a draft, and which said writing obligatory was in words and figures as follows: “ Sherman, Texas, Jan. 22, 1873. “ One day after date, for…

Tried below before the Hon. James H. Rogers. Thompson was indicted, and the offense charged was, that on the 12th day of October, A. D. 1873, in the county and State aforesaid, one Dave Thompson did unlawfully, willfully, and by force of arms, make an assault upon the person of one Fred. Jefferson, and with a certain piece of steel, the same being then and there a deadly weapon, did strike him, the said Fred.

<p>1. Swindling—Indictment.—An indictment for fraudulently selling mortgaged property is not defective because the administrators of the mortgagee are alleged to be the holders of the mortgage upon the property charged to have been disposed of.</p> <p>2. See indictment held sufficient for the offense of selling mortgaged property, as defined by statute. (Pas. Dig., arts. 2425, 2429.)</p>

<p>Appeal from Rockwall. Tried below before the Hon. M. H. Bonner.</p>

Atascosa. Tried below before the Hon. John P. White. Vicente Varas was indicted for theft of “ a black and white-spotted sow hog,” the property of Jesse L. Ragsdale. On the trial Ragsdale testified that about October 1,1873, in Atascosa county, witness was returning home, and “ when within six or seven hundred yards of my house I heard my hogs making a noise off at one side of the road.

<p>Error from Anderson. Tried below before the Hon. A. J. Fowler.</p>

<p>1. Accomplice.—See facts sufficiently corroborating the testimony of an accomplice.</p> <p>2. Murder in the first degree.—Evidence held sufficient to warrant a verdict for murder in first degree.</p>

Error from Smith. Tried below before the Hon. Z. Norton. November 2, 1861, George Yarbrough instituted suit by attachment against Hugh Yarbrough, a nou-resident. The attachment was levied on a tract of land on November 2, 1861, and on same day the sheriff levied on same tract two executions issuing from a justice’s court. Under these executions the sheriff made sale of the land on December 4, 1861, at which sale M. Wood was the purchaser, at $1,963.

<p>1. Assault with intent to murder.—See facts held sufficient, and such as not to require the court to instruct the jury as to aggravated and simple assault.</p> <p>2. Evidence of former quarrels between the parties may be admitted to show the state of mind of the accused at the time of the offense.</p> <p>3. Instructions.—On a trial for assault with intent to murder, it is sufficient that the court give the law applicable to the facts considsidered with reference to the accusation, unless other instructions be asked. iTor will a verbal charge as to the lower grades of offense charged in the indictment, be ground of reversal, unless excepted to at the trial.</p> <p>4. Indictment.—An indictment for shooting includes an attempt to shoot; and under such indictment evidence of shooting at the in ■ jured party is admissible.</p>

Tried below before the Hon. James H. Rogers. James A. Shult was indicted for playing “at a certain game of cards at a public house, to wit, in a room situated over and attached to the storehouse of Sebolds & Floyd, in the city of Jefferson, in said county, the said room being then and there a gaming house.” The indictment being quashed, the State appealed.

<p>Appeal from Titus. Tried below before the Hon. M„ L. Crawford.</p> <p>This is an appeal from a final judgment against Turner and others, sureties of James Daffern, obligors in a bail bond approved by a deputy sheriff, requiring Daffern “to-answer the State of Texas on a charge against him by complaint before Rufus Mann, justice of the peace, wherein the said James Baffern is charged that on the 23d day of Hovember, 1872, did in said county cut and stab Lafayette Hightower, with intent to kill and murder him, the said Hightower.”</p> <p>The bond was otherwise good. It was, however, not marked filed in the District Court.</p> <p>To the judgment nisi the defendants answered:</p> <p>(1,) The bond upon which the judgment was rendered was vague and uncertain; (2,) because it was not a filed paper; (3,) because it does not show upon its face that the sheriff had any authority to require a bond; (4,) it did not charge that any person had committed any offense; (5,) because there is no such offense known to the laws of Texas as to “cut” and “ stab with intent to kill and murder.”</p> <p>The judgment nisi was made final, and the sureties appealed.</p>

Tried below before the Hon. M. H. Bonner. Lewis Case was indicted, the charge being that he “ did then and there go into the house of Henry Goodman, the same being then and there the private residence of the said Henry Goodman, and did then and there assault, strike, and beat the said Henry Goodman with intent to injure.” Exceptions to the indictment were sustained, and the District Attorney appealed.

Error from Anderson. Tried below before the Hon. John GL Scott. Jesse Calhoun brought suit for the recovery of specific property, to wit, mill, engine, boiler, &e., purchased by Calhoun at sheriff’s sale on judgment and execution against Davis, and valued at $1,000. Petition was filed July 1, 1872, and at the same time a writ of sequestration was obtained sequestering the property, and plaintiff asked judgment for damages and costs.

<p>1. Separation of jury in felony cases.—That a juror separated from the others, without permission of the court, and unaccompanied by an officer, is not of itself sufficient grounds for new trial, it not appearing that such separation had any effect on the fairness of the trial.</p> <p>2. Theft from a house, when by a domestic or other inhabitant of the house, is punishable as simple theft. See evidence rendering a charge on simple theft unnecessary.</p> <p>3. See facts constituting the offense of theft from a house.</p>

<p>Guardian must give bond on appeal.—A guardian cannot, in an ordinary suit, appeal or obtain a writ of error without giving bond.</p>

<p>1. Reasonable doubt in criminal cases.—It is error to charge the jury “that such doubt must not be a mere possible doubt, but it must be a doubt sustained by the evidence, upon a review of all the facts and circumstances of the case, such as a reasonable man would act upon in any of the important concerns of life.”</p> <p>2. Theft—Trespass.—In a trial for theft, when the evidence shows a public taking and a claim of right in the property by the accused, the jury should be instructed that any reasonable doubt as to the honest or felonious intent should be given in favor of the accused.</p> <p>3. Oath of jury in State cases.—Record must show that the jury was sworn in criminal cases. The recitation of an oath different from that prescribed is fatal, and is ground for reversal, although the record may also state that the jury were duly sworn.</p>

Tried below before the Hon. M. H. Bonner. The indictment charged “that J. A. Hartman * * * did make an assault and battery in and upon the person of William Brockway, and did then and there strike, beat, bruise, and wound him, the said William Brockway, with a certain piece of plank, giving to the said William Brock-way then and thereby serious bodily injury.” The indictment was quashed, and the District Attorney appealed.

<p>Appeal from Marion. Tried below before the Hon. M. L. Crawford.</p>

<p>1. Venue.—An indictment must appear by direct averment to have been presented by a grand jury of the proper-county.</p> <p>2. Criminal procedure.—An indictment describing the grand jurors by which it is presented as “duly elected, impaneled, sworn, and charged to inquire into and true presentment make of all offenses committed in the county of-, in said State, cognizable in the District Court held in and for the county of Titus and State aforesaid : ” Held, defective on exceptions.</p> <p>S. Amendment op indictments.—Such defect could have been corrected by amendment.</p>

Appeal, from Fannin. Tried below before the Hon. J. C. Easton. Jim Gilbraith was indicted for theft of a blue dun bull of the value of fifteen dollars, the property of W. J. Myers. On the trial Myers testified that about the 1st of May, 1874, in Fannin county, he found near his residence the carcass of a dead animal, skinned, with part of the neck, head, and ears unskinned. On -careful examination, witness was satisfied that it was the carcass of bis bull.

Tried below before the Hon. W. H. Burkhart. George Koontz was indicted, tried, and convicted for theft of a hat from the house of Alfred Dunham. The verdict was as follows : “ We, the jury, find the defendant gilty as charged in the indictment, and assess his punishment at confinement in the State penitentiary for a tarm of too years.” The court charged the jury in the terms of the statute upon the offense.

Tried below before the Hon. A. J. Hood. November, 1872, G. W. Henrie was indicted for the murder of Michael Cannon. At the March term, 1874, there was a mistrial, and the accused admitted to bail. At the July term following, defendant asked a continuance of his first application, as follows.

Error from Anderson. Tried below before the Hon. A. J. Fowler.

Tried below before the Hon.' Wm. H. Burkhart. At the June term, 1873, of the District Court of Matagorda county, the grand jury presented an indictment charging that one George Washington, on the 17th day of May, A. D. 1873, in the county of Matagorda, did, willfully, unlawfully, fraudulently, deceitfully, and falsely pretend and represent to Galen Hodges that Conrad Frantz had authorized him, the said George Washington, to purchase of the said Galen Hodges, on the credit of…

Tried below before the Hon. A. J. Fowler. August 23, 1873, A. T. Wilson applied to the District Court of Kaufman county for letters of administration on the estate of Augustus Catchings, deceased, who died 26th February, 1873, while on a visit to Hines county, Mississippi. It was alleged that deceased resided in Kaufman county, and left an estate of about six thousand dollars— left no widow, and that petitioner had the consent of ' creditors to administer.

Error from Anderson. Tried below before the Hon. John G. Scott. On May 20, 1872, Aug. Reinhardt brought suit against George M. Cox, on a promissory note payable on same day for two hundred dollars, and for twenty dollars for work and labor.

Tried below before the 3jIon. 2. Norton. F. M. Hays assigned an account against Jackson Smith to T. F. Deweese, who brought suit thereon before Matthew Wood,-mayor of the city of Tyler. Judgment was rendered in favor of Deweese and against Smith and Hays for the amount of the account so assigned.

<p>Appeal from Kaufman. Tried below before the Hon. M. H. Bonner.</p>

Tried below before the Hon. A. S. Broaddus. Tullís was tried and convicted of arson. The opinion of the court carefully recites the facts, except that the letter alluded to in the opinion is not given. It is as follows: “Austin, June 18th, 1874. “ Mr. Geo. F. Gage, “Sir: I have been thinking of that matter we were talking of. Now, Mr. Gage, it is impossible for me to stay here four or six weeks idle, and no money.

Tried below before the Hon. J. O. Easton. Mike Delaney was tried at the February term, 1874, of the District Court of Fannin county, on an indictment charging him, jointly with John Whaley, with the willful burning of a calaboose used for confining prisoners in the city of Bonham. Late in the evening of the 17th March, 1874, Delany and Whaley were arrested for drunkenness, and confined in the calaboose in Bonham during the following night.

<p>Appeal from Tarrant. Tried below before the Hon. H. Barksdale^</p>

Tried below before the Hon. J. C. Easton. Sam Ward was indicted for hog-stealing. When about to drive some hogs of his own to market, Mrs. McCrury requested the defendant to take the hog alleged in the indictment to have been stolen to market to be sold for her benefit. Her statements at the time of the delivery by her of the hog to defendant were offered by him in evidence and excluded, to which defendant excepted.

<p>Practice.—Participation by several defendants in a conspiracy to commit a fraud is not of itself a sufficient connecting link to render them liable to be joined in the same action.</p>

<p>Charge op the court.—It is not error for the court to instruct the jury to find attorney’s fees as reasonable costs, where the contract stipulated that the “expensesof collecting the debt” shall also be paid.</p>

<p>Appeal from Galveston. Tried below before the Hon. Samuel Dodge.*</p>

<p>Appeal from Smith. Tried below before the Hon. M. H. Bonner.</p>

Tried below before the Hon. J. P. White. Andreas Guagando was convicted for the murder of Salome Puentes, in Guadalupe county, on the night of ¡¡November 9, 1873.

<p>1. Final judgment—When none can be entered on exceptions to indictment —íTo final judgment can be rendered in the District Court on exceptions to an indictment held bad by the district judge for the offense charged, but good for an offense of less degree.</p> <p>2. Practice.—In such cases the District Attorney should either conform to the judgment of the court and proceed to trial or dismiss the prosecution and procure the finding of a new indictment.</p>

<p>Confederate money—How far contracts to pay in, may be enforced.—A note payable in Confederate money, executed between private parties in the usual course of business, is an obligation which will be enforced to the extent of the value of Confederate notes at the time of the contract.*</p>

<p>1. Diligence—When not sufficient for continuance.—A continuance was obtained at the fall term, 1873, for the testimony of a witness whose residence was unknown to the defendant. In February, 1874, attachment issued for him to Red River county, where defendant was “informed and believed he then resided.” This was not served. On the 20th October, 1874, another application for continuance, stating diligence as above set forth, but failing to state that affiant knew where the witness then resided. Held, insufficient.</p> <p>2. Practice—When objection to a verbal charge must be made.—The objection to a verbal charge by the court, in a case of misdemeanor, comes too late when made for the first time in motion for new trial. An exception should be taken at the time.</p>

<p>1. Vindictive damages.—See facts not authorizing.</p> <p>2. Practice—Instructions.—A party failing to ask instructions which might have prevented an erroneous verdict, is not thereby estopped from asking a new trial on account of an erroneous verdict upon the charge given and the facts.</p> <p>3. Construction of contract.—See discussion as to the meaning of terms in a mortgage.</p> <p>4. A mortgage upon machinery in a factory, and on such as may be added to the same, does not include machinery placed for exhibition hy one not a party to the mortgage upon the land covered by the mortgage.</p>

<p>Appeal from Smith. Tried below before the Hon. Z. Horton.</p>

Tried below before the Hon. Samuel Dodge, judge of criminal court. Williams was indicted and convicted of stealing twenty-five cakes of the value of one cent each, and one dollar and ten cents fractional currency, from the house of Adolph Heis and Jacob Weis.

Tried below before the Hon. M. H. Bonner. This was a suit in the court below by N. T. Avant against John R. Jones, to enjoin the sale of a bale of cotton levied on under two executions as the property of James Hanna. The executions were issued on two judgments rendered by a justice of the peace of Henderson county in 1878, in favor of Jones & Evans, against James Hanna, and were levied on the cotton by John 0.