« السابقةمتابعة »
self from the attack of all.—Welborn v. State, 179 S. W. 1179. C> | 16 (Tex.Cr.App.) Defendant had right to shoot decedent attacking him if from his viewpoint he was in danger of death or serious injury, whether other parties, decedent's friends, had anything to do with the trouble, or whenever they came into it.—Welborn v. State, 179 S. W. 1179. It is defendant's viewpoint, and not the jury’s, as they subsequently see a homicide, from which the appearance of matters, as giving defendant reasonable cause to believe he was in danger of injury, is to be estimated.—Id. C> 122 (Tex.Cr.App.) Where accused shot the deceased, who was attacking defendant's father, he was guilty of no offense if it reasonably appeared to him at the time he shot that the life of his father was in danger, or that he was in danger of suffering serious bodily injury.— Brod v. State, 179 S. W. 1189.
VI. INDICTIMIENT AND INFORMATION.
Q: 142 (Ark.) An indictment charging one kind of first degree murder will not support an instruction and conviction on another kind, where the elements of the two are essentially different. —Sheppard v. State, 179 S. W. 168.
VII. EVIDENCE. (A) Presumptions and Burden of Proof.
Q: 144 (Ark.) Notwithstanding Kirby's Dig. § 1765, the burden on the whole case on a trial for homicide is on the state, and mitigating circumstances raising a reasonable doubt require an acquittal, by whichever party proved. —Johnson V. State, 179 S. W. 361.
(B) Admissibility in General.
Q: 157 (Tex.Cr.App.) Evidence of defendant's difficulty with a person who had won his money and whom he probably intended to kill was admissible to show his state of mind.—Williams v. State, 179 S.W. 710. <> 163 (Tex. Cr.App.) In a prosecution for uxoricide, defendant's evidence of his kindness to his children held inadmissible, since his kindness to them was not in issue.—Rea, v. State, 179 S. W. 706. C: 164 (Tex.Cr.App.) Where defendant contended that deceased might have committed suicide on account of ill health, testimony of an employer that he lost no time while working for him held admissible.—Hand v. State, 179 S. W. 1155. Q: 166 (Tex.Cr.App.) Evidence of defendant's difficulty with a person who had won his money and whom he probably intended to kill was admissible to show his motive.—Williams v. State, 179 S.W. 710. C> 166 (Tex.Cr.App.) Evidence as to defendant's false statements before deceased's death that he was a millionaire, and after his death that he was a pauper, and that she had a large amount of money in a bank, held admissible.— Hand V. State, 179 S. W. 1155. C: 170 (Ark.) In a prosecution for homicide, evidence that shoes of the same last as those sold to accused, but only a little shorter, fitted tracks at the place of the crime, except as to '', # admissible.—Owens v. State, 179 S.
(E) Weight and Sufficiency.
Q:228 (Ark.) Evidence as to circumstances under which deceased was called from his house and as to the subsequent finding of his dead body held to warrant a finding that there Was an unlawful killing.—Johnson v. State, 179 S. W. 361. &=233 (Tex.Cr.App.) Proof of motive is not essential to support a conviction for murder.Rea v. State, 179 S. W. 706. Q:234 (Tex.Cr.App.) Circumstantial evidence in a prosecution for homicide held to support a verdict of guilty.—Rea v. State, 179 S.W. 706. 6:236 (Tex.Cr.App.) In a prosecution for murder, evidence held to show that decedent, a three year old girl, received fatal injury when flung into an adjoining room by defendant.Galvan v. State, 179 S.W. 875. Q=>250 (Tex.Cr.App.) In a prosecution for murder against a peace officer, evidence held to sustain conviction of manslaughter.—Moser V. State, 179 S. W. 104. &=253 (Ark.) Evidence held to warrant a conviction of murder in the first degree.—Owens v. State, 179 S. W. 1014. C=257 (Tex.Cr.App.) Evidence held to support a conviction for assault with intent to murder. —Freeman V. State, 179 S. W. 1157.
VIII. TRIAL. (B) Questions for Jury. &:268 (Ark.) Under Kirby's Dig. § 1765, as to
burden of showing mitigating circumstances, where unlawful killing was established, and defendant admitted “knifing” deceased, directed verdict held properly refused.-Johnson v. State, 179 S. W. 361. &=281 (Tex Cr.App.) In a prosecution for homicide, evidence that accused was a principal held sufficient to go to the jury.—Taylor v. State, 179 S. W. 113.
&=>290 (Tex.Cr.App.) Instructions in prosecution for wife murder by poison held to sufficiently require the state to prove that arsenic was the poison used.—Rea v. State, 179 S. W. 706. &=291 (Tex.Cr.App.) Evidence in a prosecution for wife murder by poison held not to require a charge on the issue of suicide.-Rea V. State, 179 S. W. 706. <>300 (Ark.) Instruction that defendant could not plead self-defense if he was the aggressor or voluntarily entered into the difficulty held to properly present state's theory, and not erroneous for failure to charge as to defendant's withdrawal from the difficulty.—Yancey V. State, 179 S. W. 352. <>300 (Ark.) Instruction on self-defense in language of Kirby's Dig. § 1798, and another instruction given at defendant's request held not in conflict, but to correctly declare the law.Johnson v. State, 179 S. W. 361. &=>300 (Ky.) Where the evidence shows that deceased was shot from behind, precluding the possibility of altercation or struggle, failure to instruct on self-defense and manslaughter held # error.—Wilson v. Commonwealth, 179 S.W. &=300 (Tex.Cr.App.) Failure to instruct that two witnesses, when attacked by deceased, to whose aid defendant, a peace officer, came, were not bound to retreat, held not erroneous as not called for by evidence.—Moser v. State, 179 S. W. 104. Failure to charge on law of retreat as applied to defendant peace officer and two brothers who were being attacked by deceased when the officer came up, the question being inapplicable to any theory of the case, held not erroneous.
<>300 (Tex.Cr.App.) In a trial for murder, instruction that defendant in self-defense might use only such force as reasonably appeared to him at the time and place to be necessary to protect himself against unlawful violence was erroneous.—Vollintine v. State, 179 S. W. 108. Where the evidence in a trial for murder raised the issue of self-defense based on threats, the refusal to submit it was error.—Id. 3:300 (Tex.Cr.App.) In a prosecution for homicide, held, that a charge on self-defense should have been given.—Taylor v. State, 179 S. W. 113. One charged as principal of the party who actually fired the fatal shot held not guilty, where he or the actual perpetrator reasonably believed it was necessary in self-defense.—Id. C:300 (Tex.Cr.App.) In a prosecution for manslaughter, instruction held erroneous as improperly presenting issue of self-defense.—Welborn V. State, 179 S. W. 1179. &=305 (Tex.Cr.App.) In a prosecution for homicide, a charge on the question of principals held erroneous under the circumstances.Taylor v. State, 179 S. W. 113. &:309 (Tex.Cr.App.) Instruction that adultery of defendant's wife with deceased would not reduce the killing to manslaughter held erroneous as not fairly presenting the issues made by the evidence.—Mitchell v. State, 179 S. W. 116. An instruction that adultery With the Wife may be adequate cause which may reduce a homicide to manslaughter should be given if there is evidence to support it.—Id.
X. APPEAL AND ERROR.
&=340 (Tex.Cr.App.) Where jury assessed lowest punishment for manslaughter, charge on murder and manslaughter held, in view of the verdict not so general as to mislead jury.—Lockett v. State, 179 S.W. 716.
Q: 341 (Tex.Cr.App.) In trial for murder, instruction on manslaughter that, if defendant believed that deceased had improper relations with his wife, it would be adequate cause, Was sufficient, and failure to further instruct that his belief of such relations would be real to him whether such relations existed or not, Was g" #le error.—Wollintine V. State, 179
See Taxation, @:241.
See Negligence, Ç:283; Railroads, 3:376, 390; Street Railroads, 3-103.
HUSBAND AND WIFE.
See Bigamy; Curtesy; Death, @:31; Descent and Distribution, ©252; Disorderly House, 3:9; Divorce; Evidence, Ç:248; Fraudulent Conveyances, 3:299, 300; Homestead; Marriage; Witnesses, @:60.
I. MUTUAL RIGHTS. DUTIES, AND LIABILITIES.
C:6 (Ark.) Where one conveys his property to deprive an intended husband or wife of rights arising from marriage, equity will avoid such conveyance, or compel the grantee, to hold the property in trust for the defrauded husband or wife.—West v. West, 179 S. W. 1017.
<>| | (Ry.) Under the law in 1864, before the Married Women's Act of 1894, a husband, taking his wife's personal property and using it in the purchase of a farm, and taking title in her name with reversion to his heirs, thereby reduced it to go'-Nee's Ex’r v. Noland's Heirs, 179 S. W. 430. <>14 (Tenn.) A conveyance to husband and wife creates an estate by the entireties, and not
£ommon-Bennett v. Hutchens, 179 S. W.
It is immaterial that a deed to a husband and wife does not show their relation, or the intention of their grantor. on its face, for their estate is required by the common law to be by the entireties.—Id.
Shannon's Code, § 3677, does not abolish estates by the entireties.—Id. <>19 (Tex.Civ.App.) A wife, who purchased goods which were necessaries for her own use, was personally liable for their value.–Trammell v. Neiman-Marcus Co., 179 S.W. 271. Q=2334 (Tex.Civ.App.) In an action by an automobile dealer for the value of a car sold by one representing himself as agent, evidence held to warrant finding of agency in plaintiff's wife to $ploy salesman.—Holmes v. Tyner, 179 S. W.
IV. DISABILITIES AND PRIVILEGES OF COVERTURE.
©87 (Tex.Civ.App.) A married woman cannot, even with the consent of her husband, legally bind herself as surety on an appeal bond, and a bond on which she is a surety may be refused.—Wilson v. Dearborn, 179 S.W. 1102.
V. WIFE'S SEPARATE ESTATE. (A) What Constitutes.
<=113 (Tenn.) Laws 1913, c. 26, do not affect estates of married women held at the time of its passage.—Bennett v. Hutchens, 179 S. W. 629.
3:205 (Tenn.) Common-law rule that , one spouse cannot sue the other for tort committed during the marriage held not abrogated by Shannon's Code, § 64.70, or Pub. Acts 1913, c. 26.--Lillienkamp v. Rippetoe, 179 S. W. 628. &=209 (Tenn.) Notwithstanding the Married Women’s Act, a husband may, aS at Common law, recover for loss of the services of his wife by reason of her personal injuries.-City of Chattanooga v. Carter, 179 S.W. 127. <>235 (Tex.Civ.App.) In action for alleged necessaries, instruction to find the goods to be necessaries as against the wife held calculated to impress the jury that they were necessaries as against the husband.—Trammell v. NeimanMarcus Co., 179 S. W. 271. Submission of issue whether goods were necessaries, considering husband's financial circumstances and station in life at “and prior” to the time of the purchase, held erroneous.—Id. In action for necessaries, in which plaintiff pleaded estoppel, held, that question whether the husband knew the goods were being charged to him should have been submitted to the jury.
VII. COMMUNITY PROPERTY.
&=>257 (Tex.Civ.App.) Rev. St. 1911, art. 4621, as amended by Acts 33d Leg. c. 32, § i. (Vernon’s Sayles' Ann. Civ. St. 1914, art. 4621), and Rev. St. 1911, art. 4622 (Vernon's Sayles’ Ann. Civ. St. 1914, art. 4622), do not change the rule that property acquired by the use of the Wife's separate property becomes that of the community. —First Nat. Bank of Plainview V. McWhorter, 179 S. W. 1147.
G=>302 (Tex.Cr.App.) It is not essential to the right to prosecute for abandonment after seduction and marriage that the marriage shall have taken place after indictment.—Coleman v. State, 179 S. W. 1172.
<>313 (Tex.Cr.App.) In a prosecution for abandonment after seduction and marriage, held error to exclude testimony of a witness that he saw a woman, whom he believed to be
&: IU (Ark.) An indictment stating in technical language that adultery was committed by defendant, a married man, with his niece, Sufficiently alleged the offense of incest.—Carmen V. State, 179 S. W. 183. An indictment for incest which failed to allege that defendant was a married man when he committed the adultery with his niece was insufficient to sustain a conviction.—Id. &=> 13 (Ark.) On trial for incest, conduct and acts prior to period of limitation held admissible to show relations of parties.—Carmen v. State, 179 S. W. 183. Bond and orders in bastardy proceeding in which defendant admitted that he was the father of the child held admissible.—Id. C: 14 (Ark.) On a trial for incest, evidence held sufficient to support a verdict of guilty.— Carmen v. State, 179 S. W. 183.
&: I 10 (Ark.) Indictment for keeping a gambling table, in the words of the statute, held to charge a public offense, under Kirby's Dig. § 1732.—Riley v. State, 179 S. W. 661. C> | 10 (Tex.Cr.App.) An indictment for arson following Pen. Code 1911, art. 1200 et seq., held sufficient.—Tinker v. State, 179 S. W. 572. Q: 10 (Tex.Cr.App.) In view of Rev. St. arts. 7435, 74.46. Code Cr. Proc. arts. 453. 460, 464, and Pen. Code, art. 614, an information charging sale of intoxicants without a license, following article 611, held sufficient, while not averring the particular place in the county or that accused was licensed to sell elsewhere.Winterman v. State, 179 S.W. 704. Q: 121 (Ky.) An indictment being too general, and not sufficiently describing the thing converted, bill of particulars is the remedy.—Commonwealth v. Holliday, 179 S. W. 235.
C: 122 (Tex.Cr.App.) A complaint charging an assault with “knucks, commonly known as brass knucks,” and an information chargin the assault with “knucks,” do not show a £i Variance.—Chisom V. State, 179 S. W. 103.
VI. JOINDER OF PARTIES, OFFENSES,
<> 125 (Ky.) Considering the accusative and descriptive parts of an indictment, held, it was not duplicitous, but only charged the offense denounced by Ky., St. § 1358a, and not that denounced by section 1202.—Commonwealth v. Holliday, 179 S. W. 235.
3: 128 (Tex.Cr.App.) Indictment charging in two counts theft from two persons and theft from one of such persons held good, and not to charge a felony, though aggregate value of property, as stated in both counts, was $55.-Whitfield v. States, 179 S. W. 558.
VII. MOTION TO QUASH OR DISMISS, AND DEMIURRER.
&= 133 (Tex.Cr.App.) An indictment cannot be shown to be defective by evidence, but is tested as a pleading under the law applicable.-Tinker v. State, 179 S. W. 572. &= 137 (Ark.) Disqualification of grand juror held not to affect indictment on motion to quash under the express provisions of Kirby's Dig. § 22.45.—Calloway v. State, 179 S. W. 356.
&= 137 (Tex.Cr.App.) Where an indictment was
in two counts, and one of them was good, there was no error in denying a motion to quash, where the conviction was general.—Hyroop V. State, 179 S.W. 878. <> 137 (Tex.Cr.App.) That an indictment charges the same offense charged in another indictment under which accused had been convicted is not ground for quashing the indictment. —Park v. State, 179 S.W. 1152. &=> 137 (Tex.Cr.App.) That an indictment for knowingly permitting his house to be used for purposes of prostitution did not put defendant's name after the words “upon their oaths in said court present that, * * * * or that it did not allege particularly where the premises were located in the county, held not grounds for quashing.—Lawson v. State, 179 S.W. 1186 G: 138 (Tex.Cr.App.) Overruling of motion containing exception to indictment on ground that it had been altered after return into court held proper.—Galvan V. State, 179 S. W. 875. &: 147 (Ky.) An indictment being too general, and not sufficiently describing the thing converted, bill of particulars, and not demurrer, is #e #-commonwealth v. Holliday, 179
not raised in the circuit court.--Talbott v. Commonwealth, 179 S. W. 621.
* IV. CONTRACTS.
<>57 (Mo..App.) Sale of small value from stock of drugs, and retention of possession of store until trial of action for rescission of contract, whereby plaintiff, when an infant, had purchased the stock, held not a ratification of such contract.—Moser v. Renner, 179 S.W. 970. <>58 (Mo..App.) Action for decree, rescinding contract entered into during minority, and requiring defendants to surrender the consideration paid, commenced within proper time, held in itself a disaffirmance of such contract.Moser v. Renner, 179 S. W. 970. Action for rescission of contract of sale and cancellation of the several notes secured by chattel mortgage held maintainable for plaintiff's protection on ground of avoiding a multiplicity of suits on the notes.—Id. Plaintiff, who while a minor purchased the capital stock of a drug company which was wholly owned by defendants individually, in action after majority to rescind sale, held not required to make tender of stock to himself, as representing the corporation.-Id.
3:64 (Tenn.) The franchise of a street railway company is a property right, which enables it to maintain an action for injunction against competing carriers, who have not been granted similar rights by legislative sanction, and to that ex| tent its franchise is exclusive.—Memphis St. Ry. Co. v. Rapid Transit Co., 179 S. W. 635. | @:365 (Tenn.) Where the city council fails to act under a statute authorizing it to regulate jitney busses, the jitneys may be enjoined on the bill of the street railway company, since its rights may be materially invaded through failure of the council to act.—Memphis St. Ry. Co. v. Rapid Transit Co., 179 S.W. 635. <>67 (Ky.) Citizens of a municipality may compel a grantee of a franchise, where there are provisions therein for their benefit, to exercise the franchise.—City of Princeton v. Prince£lectric Light & Power Co., 179 S. W. 74.
(E) Public Officers and Boards and Municipalities.
&=>80 (Ky.) Precinct election officers can be compelled to perform the omitted duty of returning statement with contested ballots showing whether and how counted.—Graham v. Treadway, 179 S. W. 1029. Mandatory injunction is proper remedy to require performance of ministerial duties by precinct election officers.—Id. The exercise of discretion by election officers will not be controlled by mandatory injunction.
III. INSURANCE AGENTS AND BROKERS.
(A) Agency for Insurer.
©:274 (Mo..App.) A contract between an insurance company, its general agent and the general manager of its burglary and surety departments, held several and not joint.—United States Fidelity & Guaranty Co. v. Ridge, 179 S. W. 791. Whether a contract between an insurance company and its agents creates a joint or several agency does not depend upon the number of agents contracted with nor on the form of the agreement.—Id. &=76 (Tex.Civ.App.) Insurance agent's testimony that his authority had not terminated when he issued a policy held to support finding for plaintiff, though circumstantial evidence tended to show that it had been terminated.— International Fire Insurance Co. v. Black, 179 S. W. 534. &=78 (Tex.Civ.App.) Person dealing with insurance agent without knowledge of limitation of authority held entitled to assume that he was authorized to issue particular policy and company was estopped to assert the contrary.-International Fire Insurance Co. v. Black, 179 S. W. 534. Notwithstanding secretary's testimony as to custom, court held entitled to determine territorial extent of insurance agent's authority from correspondence, and it did not limit him to a particular county.—Id.
&:79 (Mo..App.) A contract between an insurance company, its general agent and the general manager of its buro lary and surety departments, held not terminated by the retirement of the general manager.–United States Fidelity & Guaranty Co. v. Ridge, 179 S. W. 791. 3>83 (Ark.) Bond of local agent of insurance company held not to bind himself and sureties to reimburse the company for losses occurring on policies issued on prohibited risks by such local agent.—Security Ins. Co. v. Jaggers, 179 S. W. 1008. <=93 (Ark.) A fire policy, payable to mortgagee as interest might appear, held not void merely because, unknown to insurer, its agent was president of the mortgagee.—Milwaukee Mechanics' Ins. Co. v. Fuquay, 179 S. W. 497.
IV. INSURABLE INTEREST.
&: I 14 (Ky.) Where deceased procured an accident policy and paid all the premiums, held, that the beneficiary named was entitled to the amount due under the policy, though she had no insurable interest in deceased's life.—Allen's Adm'r v. Pacific Mut. Life Ins. Co., 179 S.W. 581.
V. THE CONTRACT IN GENERAL. (A) Nature, Requisites, and Validity.
C> 131 (Ky.) A valid and enforceable oral contract of insurance may be made between insured and the company, or between him and its authorized agent.—Bracken County Ins. Co. v. Murray, 179 S. W. 842. 3: 136 (Mo..App.) Insurance company held not liable to beneficiary on life policy undelivered to insured before his death, where the negotiations provided that there should be no contract until the policy had been delivered to insured in good health.—Yount v. Prudential Life Ins. Co., 179 S.W. 749. &= 141 (Mo..App.) Actual manual delivery of life policy made a condition precedent to liability by the terms of the insurance contract, as embodied in the application, may be waived by the insurer-Yount v. Prudential Life Ins. Co., 179 S. W. 749.
(B) Construction and Operation.
3: 146 (Mo..App.) All doubts appearing on the face of the contract should be resolved in favor