Volume 43 — Texas Reports

Tried below before the Hon. D. D. Claiborne. Davidson and others claimed to be owners of an iron bridge which spans the Guadalupe river at the town of Victoria. The town tract, consisting of four square leagues, lies in nearly, equal parts upon each side of the river; while the town proper, one mile square, lies upon the east side.

P. J. Willis and Richard S. Willis, as partners under the firm-name of P. J. Willis & Bro., filed their petition in the District Court, praying in their own behalf, and in behalf of others of like interests, for a writ of injunction, to restrain the sheriff of Galveston county, and the Board of Education, and the Board of School Directors of Galveston county from proceeding to collect from petitioners and others who might be permitted to become parties plaintiff, the…

Oil the 12th of April, 1875, A. 0. Hill applied to this court for a writ of habeas corpus, alleging that he was a deputy United States marshal, and that he was unlawfully deprived of his liberty by one Green DeWitt, sheriff of Gonzales county, who acted under authority of a commitment issued by the District Court of that county.

Tried below before the Hon. C. C. Binekley. Carrie McHelly joined with her husband, Leander MeHelly, brought an action of trespass to try title against J. B. Brandon for 640 acres of land patented to John Cheek. It was alleged and proved that Carrie MeUelly was the only child of John Cheek, who died in 1848, and that she intermarried with Leander McEelly in 1865.

Tried below before the Hon. W. H. Andrews. Suit of trespass to try title by the heirs of Margaret Fitzgerald. In 1846 Garrett Fitzgerald, the husband of Margaret, purchased land from the patentee, W. W. Potter, and had the conveyance made to their son, James E. Fitzgerald, who, in 1847, died a minor and unmarrried. From him the father and mother inherited by moieties.

Tried below before the Hon. T. 0. Barden.. Peter Skaro was indicted for an assault with intent to kill and murder one Aaron Bennett. The defendant was confined in jail from the date of arrest, and with no counsel, until the day before his trial.

<p>Aggravated assault—Jurisdiction.—Under the"act of August 13, 1870, defining the jurisdiction of justices of the peace, those officers had no jurisdiction to try one charged with an aggravated assault. If jurisdiction was improperly assumed, an appeal from a judgment of conviction to the District Court could not thus invest that court with jurisdiction, and on such appeal the case should he dismissed.</p>

<p>Appeal from Collin. Tried below before the Hon. Silas Hare.</p>

Tried below before the Hon. A. J. Hood. The indictment in this case charged that Elbert Billingsley and Samuel Davidson, in Johnson county, on the 8th of December, 1873, “ at the gin-house of William Billingsley, in said Johnson county, the said gin-house being then and there a public place, did then and there unlawfully and willingly fight together, contrary,” &c. On motion of the defendant, the court quashed the indictment, on the ground that it charged no offense known to…

<p>Appeal from Victoria. Tried below before the Hon. T. 0. Barden.</p>

<p>1. Continuance.—Confinement in jail, and a want of information as to the requirements of law, afford no excuse for failing to use diligence in procuring the attendance of a witness, and constitute -no cause for the continuance of a case.</p> <p>2. Theft, proof of ownership.—Where one person has the general and another the special property in the thing stolen, the indictment may allege the property to be in either.</p> <p>3. Theft.—When property is stolen in one county and carried by the thief into another, the taking may be charged to have occurred in either.</p>

Collin. Tried below before the Hon. Silas Hare. The facts proven upon the trial of the case in the court below show that John Christian, the owner of the gelding charged to have been stolen, entered into an agreement or combination with other persons to entrap appellant into stealing his (Christian’s) gelding, and for that purpose employed John Snyder to gain his confidence and betray him into the hands of the officer.

Tried below before Hon. Silas Hare. Joseph Pigg and Thomas Smith were indicted jointly for theft of a gelding, the property of John Christian. Pigg was put upon trial, and John P. Snyder, witness for the State, testified that he was present on Tuesday night, 22d of September, 1874, in Collin county, when defendant and Smith took Christian’s horse, and defendant took S. F. Cooke’s horse. They were both present when the horses were taken, and acting together.

Error from Denton. Trial below before the Hon C. C. Binckley.

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

<p>Appeal from Lamar. Tried below before the Hon. B. A. Taylor. The facts are stated in the opinion.</p>

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

Tried below before the Hon. A. J. Hood. There is nothing in the facts of this case, which are somewhat voluminous, that make their statement necessary to a proper understanding of the opinion.

<p>Appeal from Johnson. Tried below before the Hon. Charles Soward.</p> <p>The facts appear in the opinion.</p>

Tried below before the Hon. J. C. Easton. Frank Darnell was indicted, and the charge preferred was “ that on the 26th day of September, 1870, in the county of Lamar, State of Texas, with force and arms, one Frank Darnell, late of said county, one certain red cow, with some white in her face and flanks and about seven years old, and one roan yearling heifer, the property of Van W. White, then and there being, did willfully take into his possession, and drive and remove from…

Tried below before the Hon. W. H. Andrews. Wyatt, the appellant, sought to perfect his appeal by the following affidavit, instead of an appeal bond : Wm. Wyatt, vs. H. L. and E. Jeffries. In the District Court of Collin County, Texas. “ Personally appeared before the undersigned authority William Wyatt, plaintiff herein, who upon oath says that he is unable to give the bond and security for costs as is provided by law for an appeal to the Supreme Court. “ Wm.

Tried below before the Hon. J. P. Richardson. This is an appeal from an order setting aside an administrator’s sale. J. V. Davis, the administrator of S. E. Mosely, applied for and obtained an order from the District Court doing probate business, for the sale of lots 5 and 6 in block 44, in the city of Austin, on the 7th day of February, 1874.

- Tried below before the Hon. J. 0. Easton. Held: her, the said Julia Edmondson, did cruelly and unmercifully and inhumanly beat, bruise, wound, and ill-treat, inflicting upon her, the said Julia Edmondson, with the stick aforesaid, fifty mortal wounds in and upon the back, legs, hands, feet, breast, and head of her, the said Julia Edmondson, all of which said wounds were inflicted…

<p>Aggravated assault—Guardian and ward.—The indictment charged the accused with committing an. aggravated assault on his ward in beating the child in a cruel, outrageous, and vicious manner, with intent to injure. The jury was instructed that if defendant inflicted a castigation upon the person of his ward with an unusual instrument, and one that was calculated to inflict serious injuries to his person, they must find him guilty: Held, error, because the charge made the instrument the test of unlawful correction, and this error was not corrected by a charge to acquit, “unless the chastisement was done in a cruel and vindictive manner,” for that made the manner of the punishment and not its extent the test of guilt.</p>

Tried below before the Hon. J. P. Richardson. The appellant was indicted for dealing “faro.” The case was made out by the State by the testimony of one Joe Hallum, who testified that when .he saw Cotton ex-Mbit “faro” Bob Roberts and John Ryan were not present.

Tried below before the Hou. John P. White. On the morning of the 10th of May, 1873, Charles Brite, a freedman, was called from his bed about two hours before day by five, men, one of whom represented himself to be James Galbreath, a constable of Caldwell county; by them he was taken away and brutally murdered. He was seen no more until about noon, the 11th day of May, when his body was found about three-fourths of a mile from his house, horribly mangled.

Error from Washington. Tried below before the Hon. I. B. McFarland. J. 0. Evans sued F. P. Wood and others, alleging “ that plaintiff and O. V. Evans were duly appointed and qualified as administrators of the estate of J. F. Evans, deceased, by virtue of an order of the probate court of Washington county, and that letters of administration issued from said court to plaintiff and the said 0.

Tried below before the Hon. A. S. Broaddus. George Williams was convicted of assault with intent to murder, and his punishment fixed at two years’ confinement in the penitentiary. On the trial Dick Wilson, for the State, testified that in the summer of 1873 he went, on defendant’s invitation, to his house, he having told witness that he could make defendant’s house his home.

<p>1. Sale by sheriff of mortgaged property.—Upon a sale nuclei execution of the equity of redemption, where a larger sum is bid than the amount of the judgment under which the sale is made, the purchaser at such sheriff sale upon buying in the incumbrance is not thereby entitled to the excess bid at the execution sale.</p> <p>2. Garnishment.—Such excess is subject to garnishment in proceedings against the judgment debtor.</p>

<p>Appeal from Washington. Tried below before the Hon. I. B. McFarland. The facts sufficiently appear in the opinion.</p>

<p>1. Married women—Estoppel.—One of two minors died leaving a large estate incumbered by debts incurred by their guardian; the heirs of the deceased minor applied for partition, which was resisted by the guardian insisting that he should be kept harmless from debts he had incurred on account of the deceased. The heirs then united in an application to the probate court for sale of lands to pay the debts and for partition of the remainder. Upon this the court ordered sale of some lands to pay debts, and the remainder, lands and slaves, was partitioned among the heirs: Held, that the married women participating in the proceedings were concluded by the sale under said order.</p> <p>2. Estoppel—Fraud.- Married women will not be allowed to perpetrate a fraud in recovering property sold at their instance and foi their benefit or that of their estate.</p>

Tried below before the Hon. Silas Hare. On the 15th of April, 1875, the relator applied to and obtained a writ of habeas corpus from Hon. Silas Hare, judge of the Criminal District Court of Dallas city, directed to Clifton Scott, and returnable on the 17th of April. On the 19th Scott made his return.

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

<p>1. Reasonable doubt.—It is not error to instruct the‘jury that a reasonable doubt is not a whimsical or vague doubt.</p> <p>2. Assault with intent to murder.—See facts held insufficient to sustain a verdict.</p> <p>3. AccidentAL injury.—See facts held sufficient to show that the injury done by the accused was accidental.</p>

<p>Mistake of date in statement of facts.—However obvious it may appear that the date of the offense, as given in the statement of facts, was a clerical error, the court will reverse where the offense appears by the statement of facts to have been committed subsequent to the date of the indictment.</p>

<p>1. Married woman—hToN-JonroEROFPARTiES.—-One sued as & femme sole, who is at the time married, but who appears and answers without pleading her coverture, cannot avail herself of the fact that she was a femme covert when the same is for the first time alleged in the assignment of errors.</p> <p>2. Presumption when there is no statement op facts.—When the petition shows a cause of action, which, if established, will support the verdict, and nothing to the contrary appears in the record, it will he presumed that facts were in evidence to authorize the ver-' diet.</p> <p>3. Verdict.—H the charge of the court should by its terms authorize a verdict for a cause of action not pleaded in the petition, yet if the verdict shows by its language that it was not based on the erroneous charge, but was responsive to a cause of action properly pleaded, the judgment rendered thereon will not be disturbed in the absence of a statement of facts.</p> <p>4. Appearance—Judgment.—When it is shown that defendants against whom judgment was rendered were served with process, the omission of the judgment to contain a recitation that the parties appeared either in person or by attorney is not material.</p>

<p>1. Husband and wife—Parties.—The husband is a necessary party defendant in an action upon a contract signed by the wife.</p> <p>2. Absence of husband.—“Long and necessary absence from the State, in the Confederate army,” does not, of itself, necessarily authorize the wife, in such absence, to bind the community property or her separate estate for the purchase of land.</p>

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

<p>1. Receipt.—A receipt appearing on its face to be that of an attorney for a claim taken for collection, may be explained by parol evidence.</p> <p>2. Attorney and client.—An attorney receiving and holding a claim for the convenience of the owner, for the purpose only of receiving and paying over money paid thereon, and for which the attorney neither charges nor receives compensation, cannot be held responsible on the debt being barred by limitation.</p> <p>3. Same—Bankruptcy.—It seems that a plea that the makers of the note were discharged in bankruptcy would be good as a bar to such liability.</p>

Tried below before the Hon. I. P. Richardson. On the trial of this cause an attachment was asked for by the defendant for one Bolen, who, it was alleged, lived about five miles from the town of Bastrop, where the trial was progressing. The application for attachment was orally made and defective in failing to state facts which authorized the writ.

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

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

Tried below before the Hon. Silas Hare. The facts of this interesting case will be fonnd carefully stated in the opinion of the Chief Justice.

Tried below before the Hon. J. M. Onins. Before the institution of this suit there was in Bryan a banking and commission house composed of O. P. Bowles and P. R. Smith, doing business under the firm name of P. R. Smith & Co. There was also a house doing a general business in merchandise composed of P. R. Smith, J. J. Adams, C. A. Sterne, and John W. Coulter, under the firm name of P. R. Smith & Co. also.

Tried below before the,Hon. J. P. Richardson. Calvin Thompson was indicted for theft of “four barrow hogs and two sow hogs of the aggregate value of thirty dollars.” On the trial the owner of the hogs testified that his “ hogs were missing about first of April, 1874.

Tried below before the Hon. John C. Easton. Lane brought suit against John 0. Rowlett on an obligation set out in the opinion. A writ of garnishment was sued out and served on Daniel 0. Rowlett. Judgment was rendered upon a verdict against the defendant, and by default against the garnishee, from which both defendant and garnishee appealed.

<p>1. Practice in Supreme Court.—Where the transcript has been withdrawn and an assignment of errors copied into it, but not authenticated by the clerk’s certificate, such assignment of errors cannot be considered, and a motion to dismiss will be allowed.</p> <p>3- Same.—-It has been the long-established practice to permit transcripts filed before the time required by law, on application of the party filing them, to be withdrawn to perfect them by supplying deficiencies and correcting irregularities; but such amended transcripts must be re-filed and treated as a case pending from the latter date.</p>

Tried below before the Hon. J. P. Bichardson. E. H. Lane, appellee, was the United States collector of internal revenue for the 3d district of Texas; G. W. Hetten, one of the appellants, was appointed his deputy to act for him in the counties of Comal and Hays.

Tried below before the Hon. I. B. McFarland. On the 26th of March, 1857, the appellant, Pait, instituted suit in the District Court of Burleson county against one S. M. J. Benson for the recovery of certain negro slaves. On the 31st of March, 1857, a writ of sequestration issued, and was executed by the proper officer, taking into possession Mary, one of the slaves sued for, who had been hired by the defendant, Benson, to McCutchen, the appellee.

<p>1. Organization of State Government—The State Government of Texas was organized on February 16, 1846, and until that date the Government and laws of the Republic were in force.</p> <p>2. Circumstantial evidence of the existence of a deed.— Facts and circumstances independent of a deed, and contemporaneous with its execution, coupled with evidence of possession of the title papers by the grantee, and his acts and declarations in regard to the land conveyed by the deed repeated through a series of years afford presumptive evidence against the fabrication of such testimony and strongly corroborate the genuineness of che deed.</p>

<p>1. Bribery.—In an indictment of offering to bribe an attorney, it is not necessary to allege the particular acts which the attorney was required to do for the offered bribe.</p> <p>2. See case held error to refuse new trial to obtain testimony, for want of which a continuance was asked and had been refused.</p>

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

<p>Resisting an officer.—An indictment under the code for resisting an officer (Paschal’s Dig., art. 1959) which omits to charge that the officer was resisted while engaged in the effort to execute a legal warrant of arrest is bad.</p>

Tried below before the Hon. John P. White. The main points in the above cause may be summed up as follows: W. H. Burgess, Esq., as district attorney, &e., on the 26th of December, 1874, the last day of the Guadalupe District Oourt, filed a motion against appellant to remove him from the office of sheriff of Guadalupe county.

<p>1. Deed by husband for toe’s separate property.—The deed by the husband in 1834 for the wife’s separate property passed no title.</p> <p>2. Recitals in deeds bind both parties thereto and parties claiming under such deeds.</p> <p>3. Donation.—Property received by husband or wife by donation forms part of the separate estate of the party receiving the donation.</p> <p>4. Same.—A donation in remuneration for or in compensation for services rendered by a married woman to the donor is not a part of the community estate, nor could real estate so received be disposed of by the husband.</p>

<p>1. Indecent exhibition of the person—Indictment.—An indictment for mating an indecent exhibition of the person, (Paschal’s Dig., art. 2030,) which charges the act to have been done “ in a public place, to wit: a public road,” is bad; the publicity contemplated by the law has reference to persons who may witness the act rather than to locality.</p> <p>2. Same.—In indictments for this offense nothing more is generally necessary than to follow the language of the statute.</p>

<p>1. Plea op autrefois acquit.—Such plea to be good must show that the former trial was for the same offense as that upon which the new prosecution is had.</p> <p>2. Same.—A plea of former acquital upon a charge of theft from a house in which it appears that the theft upon which the first trial was had was from a different house, and the article taken from a different person, is insufficient.</p>

Navarro. W. H. and T. B. Powell as principals, and D. M. Brown and A. L. Brooks as their sureties, were recognized at the July Term of the District Court of Navarro county for the appearance of the Powells at the November Term to answer an indictment for theft of yearling cattle. No bond was executed. This recognizance was at the same term forfeited and judgment nisi entered.

Tried below before the Hon. J. P. Osterhout. The defendant had before been convicted on a charge of stealing from one Large the gelding which in this case he was charged with having stolen from Parley. It appears from the evidence that both charges were true.

<p>1. Voluntary return oe stolen property.—The statute reducing theft to a misdemeanor, (Paschal’s Dig., art. 2397,) upon the voluntary return of the property stolen before prosecution, does not apply where the character of the property has been changed, as from live hogs to pork.</p> <p>2. Same.—The return after detection by the accused of the pork made from hogs stolen to 'the owner before prosecution does not comply with such statute.</p>

Tried below before the Hon. J. P. Eichardson. This is a suit instituted by the State against the appellant, E. B. Shaw, and his sureties on his bond, as sheriff of Kaufman county. The petition was filed in the District Court of Travis county on the third day of December, 1873, alleging that the said Shaw was, on the 30th November and the 1st, 2d, and 3d December, 1869, elected sheriff of Kaufman county.

<p>Appeal from Guadalupe. Tried below before the Hon. John P. White.</p> <p>The opinion contains all the material facts.</p>

<p>Appeal from McLennan. Tried below before the Hon. H. W. Battle, Judge of the Criminal Court of the city of Waco.</p>

Tried below before the Hon. J. H. Everett. The indictment was quashed, it seems, because some important words therein were deemed illegible, by the District Judge. The original not coming into the hands of the reporters they cannot furnish a fae simile of handwriting, held sufficient; which was all the question really submitted to the appellate court.

<p>Fence bails not timber.—An indictment for carrying away fence rails will not lie under Penal Code, art. 717, punishing cutting and destroying and carrying away timber.</p>

<p>1. Venue.—Proof of the venue must appear in the statement of facts in a criminal case or a judgment of guilty will he reversed.</p> <p>2. Self-defense.—See facts held sufficient to warrant or excuse the use of a pistol in self-defense.</p>

Tried below before the Hon. H. W. Battle, Judge of the Criminal District Court of the cities of Waco and Marlin. Sheffield was indicted, tried, and convicted of the murder of an Irish peddler, Pat. Quin, in Falls county. His application for continuance was overruled. The evidence was voluminous and entirely circumstantial.

Tried below before the Hon. I. B. McFarland. The defendant, Frank Williams, was charged with making an assault on Matt. Howard, with intent to kill and murder him. As the errors complained of relate chiefly to the charge of the court, the details of the difficulty are not important, further than to state that it resulted from a quarrel suddenly begun between young men at a dance.

Error from Lampasas. Tried below before the Hon. E. B. Turner. This is an appeal by Tillman Weaver and S. H. Grizzell, sureties of W. L. Shroyer, on Ms recognizance on an appeal from the District Court of Lampasas county from a judgment of conviction of aggravated assault. On appeal the judgment had been reversed and the cause remanded.

<p>Appeal from Havarro. Tried below before tbe Hon. F. P. Wood.</p>

Tried below before the Hon. J. A. Ware. This is an appeal by the State from a judgment sustain-, ing exceptions to an indictment for embezzlement.

<p>1. Duty of district clerks in making transcripts in cases of appeal in criminal cases discussed.</p> <p>2. Absence of charge in transcript.—The court on appeal will presume that the proper charge was given, and in writing, in its absence, when the judgment recites that the jury were charged, rather than that the judge violated his duty by giving a verbal charge in a felony case.</p> <p>3. See facts held sufficient to support a verdict for burglary.</p>

Tried below before the Hon. E. B. Turner. The 1st section of the act of April 12,1871, which makes it an offense for one to carry deadly weapons, except in the lawful defense of the State, or when fearing, from reasonable grounds, an unlawful attack, or unless one be a militiaman on duty, or a peace officer or policeman, closes with the following proviso: “Provided, That this section shall not be so construed as to prohibit any person from keeping or bearing arms on his or…

<p>Aggravated assault—Charge op court.—It is error to instruct the jury, on the trial of one charged with aggravated assault, to return a verdict of guilty if they find defendant inflicted a serious bodily injury on the party assaulted, when that was not alleged as a ground of aggravation in the indictment.</p>

<p>Appeal from San Saba. Tried below before the Hon. B. B. Turner.</p>

<p>Appeal from Caldwell. Tried below before the Hon. John P. White.</p>

Tried below before the Hon. J. P. Richardson. Dave Ezelle and John Ivey, the defendants, were indicted for theft of a steer, the property of Elizabeth Pfluger. There was a severance, and Ivey alone was put upon trial. The testimony showed that on the last day of July, 1873, two men, riding gray horses, were seen in the neighborhood of Pfluger’s, driving a bunch of cattle in the direction of Austin.

<p>Appeal from Titus. Tried below before the Hon. Jas. H. Rogers.</p> <p>The facts, so far as necessary, appear in the opinion.</p>

<p>Appeal from Williamson. Tried below before the Hon. E. B. Turner.</p> <p>Bobley D. Smith was indicted for fraudulently driving , a cow, of the value of ten dollars, the property of Andrew Glasscock, from its accustomed range, without the consent of Glasscock, &c., on October 13, 1873. At the March Term, 1875, Smith was found guilty, fined four hundred and fifty dollars, and appealed.</p>

Error from Calhoun. The appellees filed on the 20th May, 1875, the following motion: “The motion and petition of Elisha Basse, the surviving defendant in the original canse, and of Charles Stillman and Wm. Gr.

<p>1. Motion for new trial—Diligence.—This court will not revise the action of the District Court refusing an application for new trial based upon the expectation of obtaining the testimony of an important witness, which must have been known to the defendant before the trial, when no diligence was shown to obtain such testimony or reason shown why an application for continuance for want of the testimony was not made.</p> <p>2. Unrecorded stock brand.—An unrecorded brand is admissible to aid in proving the identity of a stolen animal, the title being established by other testimony.</p>

<p>Theft from a house—Domestic servant.—A party hired for one day “to butcher and cut up beef” is not a domestic servant within the meaning of the code, and theft from the shop committed by him of his employer’s property pending such employment is theft from a house under the law.</p>

Tried below before the Hon. George H. Noonan. May 4th, 1875, Melchior Ximenes filed a motion representing that at the term of 1873 of this court the case No. 1669, of Melchior Ximenes and W. D. Mays v. Ursula Ximenes came on to be heard, having been submitted on the briefs of the several appellants and of the appellee; that the opinion of the court was delivered on the 30th of September, 1873, in which the rights of this appellant were recognized as claimed in his pleadings…

<p>Appeal from Falls. Tried below before the Hon. ÜÑT. W. Battle, Judge of the Oriminal District Court of the cities of Waco and Marlin.</p>

<p>1. Identity op body op deceased.—See evidence held sufficient to identify a skeleton as that of the murdered woman on the trial of her husband for such murder.</p> <p>2. ktUBDEB—Ciboumstantiad evidence.—See facts held sufficient to sustain a verdict of murder in the first degree.</p>

<p>1. Notary public, how appointed.—It seems that the Governor's appointment of a notary public is inoperative without the advice and consent of the Senate. (Paschal’s Dig., art. 4687.)</p> <p>2. Falsely assuming- to be a notary public.—On the trial for falsely assuming and pretending to he a notary public against one appointed by the Governor without the advice and consent of the Senate, it is error to instruct the jury “that, if the defendant acted as notary and was not legally entitled to do so they would find him guilty, unless he had reasonable ground to believe that he was entitled to exercise the functions of the office.” The guilt or innocence of the accused depended on his “belief, intent, or honesty of purpose,” and not on the reasonablenes of such belief.</p>

<p>1. Contract—Notice.—A party claiming the benefit of a month’s notice, under a contract for labor terminable by either party on such notice, must show compliance on his part with his duty under the contract.</p> <p>2. Pleading—Answer.—An answer to a suit for labor under such contract alleging gross neglect, want of care in the business, and drunkenness on the part of the laborer so as to interfere in the performance of his duty, is sufficient, and it was error in the court below to sustain a demurrer thereto.</p>

Tried below before the Hon. F. P. Wood. Q-eorge Purtell was indicted for horse-stealing. On the trial his counsel offered in evidence, to justify his possession of the animal, a bill of sale. Its introduction as evidence was objected to by the district attorney on the ground that it bore on its face the evidences of having been altered, but this objection was afterwards waived, and the paper read to the jury.

<p>Appeal from Grayson. Tried below before the Hon. S. Hare.</p>

Tried below before the Hon. Silas Hare, judge of the criminal court of Dallas. It was charged by indictment that Longley “ did seriously threaten to take the life of T. G-.

Tried below before the Hon. Silas Hare, judge of the criminal court of Sherman. Appellant, J. W. Cline, and one Wm. Hughes were indicted for theft of money from Samuel Dukes. The money is described in the opinion. Cline was tried, found guilty, and his punishment fixed at confinement in the penitentiary for two years and six months. His motion for new trial was overruled, and he appealed.

Tried below before the Hon. D. M. Prendergast. Williamson was indicted, tried, and convicted for theft of two oxen. His motion in arrest of judgment was granted, and the State appealed.

Tried below before the Hon. F. P. Wood. William Ferrell was indicted for the murder of Miss Martha Gray. The facts, as detailed by the testimony, are that on the 26th of May, 1874, in Hill county, Ferrell and one Henry Parton went to a grocery, five miles distant from Mrs. Gray’s, where Ferrell and wife lived, Mrs. Gray being Ms mother-in-law.

Tried below before the Hon. A. J. Hood. During the March term, 1874, of the District Court of Hood county, on 28th March, and after the grand jury had been discharged, K. Mitchell and others, called the Mitchell party, pursued from the county seat and assaulted Isaac Truitt and Ms two brothers, and succeeded in killing two of the Truitt brothers.

Tried below before the Hon. E. B. Turner. The indictment in this case was evidently intended to charge the offense of offering to bribe a witness, which offense and its penalty is set forth in art. 310a of the Penal Code.

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

<p>Indictment.—It is a fatal defect in an indictment to omit the words “against the peace and dignity of the State” in the conclusion, and this whether specially excepted to in the court below or not.</p>

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

Tried below before the Hon. Silas Hare. E. Newman was indicted for burglary in the Dallas City criminal court. The grand jury impaneled for the term was discharged on the 21st May, 1874. Afterwards, during the same term, a new grand jury was summoned by order of the judge and impaneled, and by it the indictment in this case was found. Appellant moved to quash the indictment because the same was not found by a legally-constituted grand jury. This motion was overruled.

Tried below before the Hon. Silas Hare, Judge of Criminal District Court of McKinney. R. C. Buie was tried and convicted in the Criminal District Court for the city of McKinney, for perjury, alleged to have been committed in an affidavit made by him in aid of an application for the continuance of a cause in which one Henry Buie was charged with murder.

Tried below before the Hon. J. P. Osterhout. The opinion quotes the charging portion of the indictment. The defendant excepted to the indictment upon the ground that it was too vague and indefinite, 1. Because it did not state the act which constituted the offense alleged to have been committed. 2.

<p>Convict.—One convicted of a felony may at the same term be after-wards tried for a separate offense.</p>

<p>1. Irregularities.—The failure to name the plaintiffs in a judgment, or a slight discrepancy between the verdict and judgment rendered, cannot be taken advantage of when such judgment is offered as a muniment of title to support a sheriff’s deed made under it.</p> <p>2. Wills—Joint or mutual wills.—Such wills can be made by husband and wife, but the probate of the will by the widow surviving does not bind her or her community interest in the property for the payment of the legacies in the will.</p> <p>3. Same—Legacies.—A deed for community property to satisfy such legacies by the widow must, as to the extent of her interest, be considered voluntary and without consideration.</p> <p>4. Partition.—The mere failure of the court to provide for partition among defendants of property adjudged them, where such partition is not asked, is not grounds for reversal.</p>

<p>Lost indictment, substitution of.—The failure of the record to show that the substitution of a lost indictment was made by the permission of the court is fatal on appeal.</p>

<p>1. Writ of error—Practice.—A petition for writ of error is not on that account defective; the petition may be addressed to the clerk of the District Court, or to the Supreme Court.</p> <p>2. Judgment by default against a garnishee.—lío judgment by default can be rendered against a garnishee when the writ of garnishment fails to designate the cause in which the garnishee is called upon to answer, or when the affidavit for the writ omits to state that the garnishee resides in the county in which the original suit is brought.</p>

<p>l; Perjury—Indictment.—When, an indictment for perjury charges the offense to have consisted of a false oath in writing, and fails to set forth the written oath in words or substance, it is fatally defective.</p> <p>2. Perjury—Indictment.—In an indictment for perjury, the averment that the oath was “legally administered by the clerk,” without giving the form, is sufficient only when the indictment states the circumstances under which the oath was required and the occasion on which it was made, so as to show that its violation would be perjury.</p>

<p>Error from Busk. Tried, below before the Hon. M. D. Ector.</p>

Tried below before the Hon. J. W. Pope, special judge. Suit by Keys & McKnight, against Greorgie Parsons, brought in 1871, for goods claimed in the petition to have been necessaries, sold and delivered to Mrs. Parsons in 1861-62. She set up her minority at the time of the purchase as a defense, and alleged that she then had a guardian of her person and estate.

<p>Appeal from Panola. Tried below before the Hon. George Lane.</p>

<p>Practice—Witness.—When, a witness is re-examined at the request of the jury, after their retirement and return into court, the omission of the judge to direct the witness to confine his testimony to the particular point of disagreement, and to make his statement in the language used by him in his first examination as nearly as he can, will, when the witness, in the absence of such caution, has given additional evidence, be ground for reversing a judgment of conviction.</p>

Tried below before the Hon. M. D. Ector. This is the second appeal in this case. (39 Tex., 638.) The facts sufficiently appear in the opinion.

Tried below before the Hon. J. L. Camp. James and Reuben Roseboroügh were convicted of an assault with intent to murder W. L. Hix, and their punishment fixed at five years in the penitentiary. On 24 June, 1875, a motion for new trial was filed and overruled.

Tried below before the Hon. M. H. Bonner. Claiborne Johnson was indicted for an assault with intent to kill and murder one William Ross. Ross testified that while he was plowing in his field Johnson, who was in the road outside of the field, addressed him, saying, “Come and take a drink with me,” to which Ross made no answer.

<p>Indictment—Variance.—An indictment for theft of the property of “Gabriel Carter” is not sustained by evidence of the theft of the property described in it from “ Carter Gabriel.” (Brown v. The State, 32 Tex., 125, overruled.)</p>

Tried below before the Hon James Q. Chenoweth. Mack Miller was before this court at a former term on appeal from a judgment of the court below refusing bail. The judgment was reversed, and his bail fixed at $7,500. He afterwards filed a motion in the court below to reduce the amount of his bail bond, alleging his inability to make the bond.

Tried below before the Hon. J. Q. Chenoweth. This was a proceeding under habeas corpus to reduce the amount of bail bond, after the amount had been before fixed by this court on appeal and after indictment found. The proceeding was dismissed, on the ground that this court had once granted bail and fixed the amount. This action was excepted to and appealed from.

Tried below before the Hon. J. Q. Chenoweth, Judge of the Criminal Court of Paris. George Thompson was indicted for an assault with intent to commit a rape. The statement of facts shows that defendant entered the room of a white woman, a domestic, about ten o’clock at night; was seen by her and a little girl sleeping with her; when first noticed, he was standing by the bed-side, . with his hand upon the person of the domestic.

Tried below before the Hon. M. D. Ector. Simmell sued Laller’s administrator upon an account extending for several years, claiming a balance of $150. Among the items was a charge for taking care of the stock horses belonging to the estate after Laller’s death, continuing in the business on contract with Eanny Laller, the widow, who did not administer on the estate, but kept the property during her life.

<p>Appeal from Robertson. From the Criminal Court of Calvert.</p>

<p>1. Rule in Shelley’s case.—A deed conveying land to M. D. and the heirs of her body * * to have and to hold unto her, the said M. D., and her said heirs forever, conveyed to her the absolute estate.</p> <p>2. Sale of homestead for partition.—Under the probate law of 1848 a sale of the homestead ordered and made upon the report of commissioners that partition was impracticable passed the title.</p> <p>3. Same.—The surviving husband could, under the said probate law, take the land, accounting to the other distributees for then- part of the value of the land so sold for partition, in the absence of fraud.</p>

<p>Appeal from Rusk. Tried below before J. W. Pope, special judge.</p> <p>The facts of this case are carefully stated in the opinion.</p>

Error from Panola county. Tried below before the Hon. George Lane. A statement of the facts of this case will be found in the opinion.

Tried below before the Hon. M. 2). Ector. The recognizance entered into by the defendant on appeal designated the offense with which he was charged as “unlawful card-playing.” The assistant attorney general moved to dismiss the appeal because the paper which purported to be a recognizance did not state the offense for which appellant was indicted. The charge given by the court and the facts on which it was predicated are fully stated in the opinion.

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

<p>1. Manslaughtbb^-Chabge of coubt.—On a trial for murder where the testimony is such that a jury might find a verdict for manslaughter, that offense should be distinctly defined in the charge; the refusal of such charge is ground for reversal.</p> <p>2. Same.—See instructions held to be correct as law, but, applied to the facts, erroneoues as a charge upon the weight of evidence.</p> <p>3. Same.—Manslaughter is voluntary homicide committed under the influence of sudden passion arising from adequate cause but neither justified nor excused by law. The articles in the code following on the subject are explanatory but not legislative restrictions; any other case within the definition would be manslaughter.</p>

<p>1. Theft by husband of wife’s separate property.—Unless there has been a distinct and definite separation, and the husband has expressly or by direct implication abandoned possession of the wife’s property and recognized her right to its exclusive possession while undivorced, the husband cannot he convicted of theft of the wife’s separate property.</p> <p>2. Same.—See facts held insufficient to support a verdict of theft by husband of wife’s property.</p> <p>3. Wife’s testimony against the husband.—It is error to admit the testimony of the wife against the husband upon trial for theft of her property.</p>

<p>Appeal from Cherokee. Tried below before the Hon. R. S. Walker.</p>

<p>1. Plea in abatement—Practice.—A plea in abatement is net-waived by the filing of other defenses cotemporaneously with the plea in which the right to insist upon it is not formally reserved.</p> <p>2. Same.—Such plea is good if it meet the grounds of-jurisdiction stated in the petition.</p>

<p>Appeal from Henderson. Tried below before the Hon. John G-. Scott.</p>

<p>Appeal from Anderson. Tried below before the Hon. J. L. Camp.</p> <p>On a night in April, 1875, about eleven o’clock, Henry Smith, a colored man, went to the house of Bhoda Wills, and three times called Amanda Killy, who, with Khoda Wills and George Bullard, (all colored,) were in the house. It was testified that at the same time Smith said to Amanda he would beat her brains out if she did not come out; that he then broke open the door and entered the room, in which, according to the witness, there was no light; he then told Amanda to “ get up,” and walking to the fireplace, seized a • persimmon club, which was three feet long and about the size of the arm of one witness. With this weapon he “ started to strike” Amanda, but on her saying “Henry, do not strike me with that stick; you will kill me,” desisted; Smith then ordered Amanda to leave the room, which she did; then turning to George Bullard, who was lying on a pallet, he struck him one blow on the head, saying as he did so, “You g—d d—d son of a b—h.” Henry Bullard died about nine o’clock the next day. It was shown that about three weeks before this the accused and deceased had a difficulty, in which the former said to the latter he “ would make the buzzards pick his bones.” One witness, who was in an adjoining room, went to the scene of the difficulty, and kindled a light after Smith had left. Blood was running from the mouth of Bullard, and in answer to an inquiry as to who had hurt him he said that it was Henry Smith. The morning after the blow was struck, the deceased said his “ brains were addled,” and also, “ May God have mercy on the man who struck me.” After striking the blow, Smith threatened to kill Bhoda Wills if she reported him, and gave as his reason for striking Bullard that Bullard had threatened on some former occasion to report Smith for creating a disturbance. It seems that Smith followed Amanda Killy to her home which was near, and while there informed her that he owed Bullard a lick, and now he had paid him. Ho physician testified as to the cause of the death. One negro said the “ skin looked green” where the hair was clipped from the head of Bullard; and another testified, “ I am satisfied that lick was the cause of the death of deceased.” The jury found the defendant guilty and assessed his punishment at death.</p> <p>A motion in arrest of judgment, which was overruled, was heard on alleged defects in the indictment, the character of which are stated in the opinion. A motion for new trial, which alleged that the verdict was contrary to the law and evidence, being overruled, the prisoner appealed. There is nothing in the charge of the court requiring notice.</p>

Tried below before the Hon. A. J. Hood. Article 4655, Paschal’s Dig., requires every person in this State who has cattle to have an ear-mark and brand, different from the ear-mark and brand of his neighbors, which he shall record, &c. Article 4655 is as follows: “ Cattle shall be marked with the ear-mark, or branded with the brand of the owner on or before they are twelve months old; hogs, sheep, and goats shall be marked with the ear-mark of the owner on or before they are…

<p>Appeal.—An affidavit by one desiring to appeal from a judgment of the District Court that affiant “is unable to give the appeal bond necessary in this case to affect his appeal taken on the court overruling his motion for new trial,” is not a compliance with the statute, which entitles one to appeal who will make oath that “he is unable to give bond and security for costs as may be required by law.” (2 Paschal’s Dig., art. 6180.)</p>

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

Tried below before the Hon. H. C. Pedigo. Smith was indicted for false swearing.

<p>Appeal from Smith. Tried below before the Hon. J. L. Camp, Judge of the Criminal District Court of Tyler.</p> <p>Wesley Hudson, January Williams, and David Thomas were indicted for theft of twenty bushels of corn, the property of James Dixon, of the value of thirty dollars.</p> <p>On the trial of Thomas, Dixon testified that on a Monday in January, 1870, he left home, in Smith county, and returned on the Saturday following, when he found that about twenty bushels of corn was missing from his crib. Sunday morning he went to his crib and found a wagon track and the tracks of two mules; these tracks he traced to the big road, and thence, after leaving the road, to the crib of defendant. After tracking the wagon to the defendant’s crib, witness called defendant from his house and asked him if he had been buying corn from any person on witness’s place. Defendant answered in the negative. “That sometime after the corn was missing the codefendants, Williams and Thomas, confessed that they and defendant stole the corn, and were willing to pay him, witness, for it, if David Thomas, defendant, would pay his part; ” that the distance the corn was taken was about half a mile; that the wagon and mules belonged to witness; that witness was able to track the mules from the impression made by a broken piece of a shoe of one of the mules; that defendant was familiar with the premises, and was in the habit of coming there often, and knew where witness kept his wagon and mules, and knew where his crib was; that the corn was taken without his consent, and was taken in Smith county, Texas.</p> <p>The prosecution then introduced Wesley Hudson, (indicted with defendant,) who testified “ that he and several others, among' whom was defendant, were' engaged in a kind of frolic on Mr: Dixon’s place one night in January, 1870 ; that they were drinking whisky, and that witness, among the rest, felt its effects; that during the jollification the defendant proposed that some one would go with him after some corn; that witness and Williams went with them to Mr. Dixon’s horse-lot and to his corn-crib, and there got, as witness supposed, about six bushels of corn, put it into Mr. Dixon’s wagon, and with Mr. Dixon’s mules carried it to the crib of the defendant; that witness staid at the wagon while defendant and Williams went to the crib and got the corn and put it into the wagon.”</p> <p>Witness Hudson on cross-examination was asked as to his testimony on a former trial of the case, and the defendant proved that on such former trial Hudson testified that Thomas was not present when the corn was taken, but was at home and received it when carried there by Williams and the witness, Hudson.</p> <p>The court, after defining theft, instructed the jury that “ Possession of property recently stolen raises a presumption of the guilt of the possessor. But you should not convict the defendant upon recent possession alone unless there are other facts or circumstances in proof pointing to the defendant’s guilt.”</p> <p>The jury found the defendant guilty, and fixed his punishment at two years’ confinement in the penitentiary.</p> <p>Motion for new trial was overruled and defendant appealed.</p>

Tried below before the Hon. John B. Rector. Wm. McGee was indicted for theft of a cow and calf, being estrays. On the trial Lewis Beavers testified that he knew McGee, and also knew a cow branded X H, which ran on Bonner’s prairie in Freestone county, thought to be an estray. The cow had a yearling calf. Defendant has some cattle in the neighborhood; had lived there three or four years; X H is not his brand—at least it was not claimed by him. The calf was not branded.

Tried below before the Hon. James H. Rogers. McWhorter was indicted and convicted for obstructing a public road leading from Petty’s ferry to Monterey, in Cass county. • The evidence showed that the road had been used as a public road for about seventeen years; that parts of the road had been to a great extent abandoned, though, owing to the bad condition of a new road which had been established, the travel generally passed over the part of the road obstructed by the…

Tried below before the Hon. M. H. Bonner. This was a suit filed April 11, 1873, against John D. Kelley, (alleged to be absent from the State and insolvent,) late sheriff of Anderson county, and his sureties Ira B. Taylor, H. C. Hunt, and George W. Whitmore.

Tried below before the Hon. M. H. Bonner. This case was before this court on appeal in 1872. (37 Tex., 621.) The facts are given in the opinion.