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statement of facts. The indictment charges , V. H. Stark, Judge. Byron Gray was convictthat appellant did with malice aforethought ed of murder, and he appeals. Affirmed. R. G. kill Sally Mays by striking her with a hatchet. Storey, Asst. Atty. Gen., for the State. The charge of the court submitted the law of murder and of the defense of alibi, and a spe in the district court of Sabine county of mur

LATTIMORE, J. Appellant was convicted cial charge asked by appellant was given. No der, and his punishment fixed at 20 years in exceptions were reserved to the court's charge. the penitentiary. Neither a statement of facts Finding no error in the record, the judgment nor a bill of exceptions appears in the record, will be affirmed.

and the indictment being in proper form, and

the charge seeming to submit the law correctly. COLEMAN v. STATE. (No. 7495.) (Court we have no choice except to direct an affirmof Criminal Appeals of Texas. Feb. 28, 1923.) ance. Appeal from District Court, Rusk County; Chas. L. Brachfield, Judge. Dennis Coleman was convicted of selling intoxicating liquor, GREER v. STATE. (No. 7460.) (Court of and he appeals. Affirmed. R. G. Storey, Asst. Criminal Appeals of Texas. Feb. 21, 1923.) Atty. Gen., for the State.

Appeal from Tarrant County Court at Law; LATTIMORE, J. Appellant was convicted P. W. Seward, Judge. H, 0. Greer was conin the district court of Rusk county of selling victed of wife desertion, and he appeals. Afintoxicating liquor. and his punishment fixed at firmed. R. G. Storey, Asst. Atty. Gen., for the one year in the penitentiary. The record pre

State. sents neither statement of facts nor bill of ex

MORROW, P. J. The appellant was conceptions. The indictment charges in regular victed of the offense of wife desertion; pun. form that appellant, on the 230 day of Decem- ishment fixed at confinement in the county jail ber, 1921, in the county of Rusk, sold to Claud for a period of six months. The record is beJimmerson spirituous, vinous, and malt liquors. I fore this court without bills of exceptions or The charge of the court submits the offense to statement of facts. No fundamental error apthe jury in language which is not subject to

pears. The judgment is affirmed. exception. Finding no error in the record, the judgment will be affirmed.

JACKSON V. STATE. (No. 7404.) (Court DAVIS v. STATE. (No. 7587.). (Court of of Criminal Appeals of Texas. Feb. 7, 1923. Criminal Appeals of Texas. March 14, 1923.) Rehearing Denied March 7, 1923.) Appeal Appeal from District Court, Knox County; from District Court, Wise County; F. 0. McJ. H. Milam, Judge. Oscar Davis was convict- Kinsey, Judge. T. M. Jackson was convicted ed of murder, and he appeals. Affirmed. R. G. of manufacturing intoxicating liquor, and he Storey, Asst. Atty. Gen., for the State.

appeals. Affirmed. Frank J. Ford, of DecaLATTIMORE, J. 'Appellant was convicted tur, for appellant. R. G. Storey, Asst. Atty. in the district court of Knox county of murder, Gen., for the State. and his punishment fixed at 25 years in the

LATTIMORE, J. Appellant was convicted penitentiary. The record is before us without in the district court of Wise county of manua bill of exceptions or statement of facts. The facturing intoxicating liquor, and his punishindictment charges murder in the usual form, ment fixed at one year in the penitentiary. and the charge of the court seems to submit The record is before us without statement of the law applicable. No error appearing, an facts or bills of exception. The indictment is affirmance is ordered.

according to approved forms. The charge of the court submitted the offense, and the jury

have found appellant guilty. There being no FOWLER v. STATE. (No. 7452.) (Court error shown, the judgment of the trial court of Criminal Appeals of Texas. Feb. 21, 1923.) will be affirmed. Appeal from District Court, Young County; H. R. Wilson, Judge. Blondy Fowler was convicted of possessing intoxicating liquors for LAINE v. STATE. (No. 7509.) (Court of the purposes of sale, ard he apreals. Affirmed. Criminal Appeals of Texas. Feb. 28, 1923.) R. G. Storey, Asst. Atty. Gen., for the State. Appeal from Criminal District Court, Harris

LATTIMORE, J. Appellant was convicted County; C. W. Robinson, Judge. Billie Laine in the district court of Young county of pos- was convicted of burglary, and he appeals. Afsessing intoxicating liquor for purposes of sale, firmed. R. G. Storey, Asst. Atty. Gen., for the and his punishment fixed at one year in the State.' penitentiary. The record is before us without

HAWKINS, J. Conviction is for burglary, statement of facts or bill of exceptions. The with a punishment of two years in the peniindictment sufficiently charges the offense, and tentiary. There are no bills of exception in some is submitted in appropriate language to the record, and no statement of facts. The the jury by the court. Finding no error in the judgment is affirmed, record, an affirmance is ordered.

GRAY V. STATE. (No. 7634.) (Court of MENEFEE v. STATE. (No, 7494.) (Court Criminal Appeals of Texas. March 14, 1923.) of Criminal Appeals of Texas. Feb. 28, 1923.) Appeal from District Court, Sabine County; Appeal from District Court, Rusk County: (248 S.W.) Chas. L. Brachfield, Judge. Jasper Menefee of the trial court appears to be in conformity was convicted of unlawfully selling intoxicating with law. Finding no error in the record, the liquor, and he appeals. Affirmed. R. G. Stor- judgment will be affirmed. ey, Asst. Atty. Gen., for the State.

MORROW, P. J. Conviction is for the unlawful sale of intoxicating liquor; punishment

STATE v. CLEAVER et al. (No. 24135.) fixed at confinement in the penitentiary for (Supreme Court of Missouri. Division No. 2. one year. The indictment is regular; no facts Feb. 23, 1923.) Appeal from Circuit Court, are brought up for review, and no rulings of Carter County; E. P. Dorris, Judge. Rowen the trial court are brought forward for revision F. Cleaver and John Jordan were convicted by bill of exceptions. The judgment is affirmed. of robbery, and appeal. Judgment affirmed.

Jesse W. Barrett, Atty. Gen., and R. W. Otto,
Asst. Atty. Gen. (Ellison A. Poulton, of Mans-

field, of counsel), for the State. MILLS v. STATE. (No. 7627.) (Court of WALKER, J. The appellants were charged Criminal Appeals of Texas. March 14, 1923.) in an information filed in the circuit court of Appeal from District Court, Camp County; R. Carter county with highway robbery. Upon a T. Wilkinson, Judge. Joe Mills was convicted trial they were convicted as charged and the of selling intoxicating liquor, and he appeals. punishment of each assessed at five years' imAffirmed. R. G. Storey, Asst. Atty. Gen:, for prisonment in the penitentiary. From this judgthe State.

ment an appeal has been perfected to this court. HAWKINS, J. Conviction is for selling in

Prior to the perfection of the appeal, the toxicating liquor; punishment is confinement judgments were each commuted by the trial in the penitentiary for one year. The record court to five years' imprisonment in the boys' is before us without statement of facts or bills reformatory. of exception. The judgment is affirmed.

We have not been furnished with a brief on the part of the appellants.

Appellants entered a box car at Midco, a

town in Carter county, with drawn revolvers, RUSSELL et al. v. STATE. (No. 7439.)

and compelled the occupants of same, who were (Court of Criminal Appeals of Texas. Feb. engaged in a dice game, to deliver to them

money in the amount of $19.20. The appellants 14, 1923.) Appeal from Limestone County were not participants in the game. A volunCourt; H. F. Kirby, Judge. W. D. Russell and tary statement made by them admitted the another were convicted of exhibiting a dancing truth of the foregoing facts. Their contention performance, and they appeal. Atlirmed. R. at the trial was that they participated in the G. Storey, Asst. Atty. Gen., for the State.

dice game and had lost $30, and the “holdup” LATTIMORE, J. Appellants were convicted was simply to recover their money from the in the county court of Limestone county of other players. The jury gave no credence to

their testimony. exhibiting a dancing performance, and their punishment fixed at a fine of $100 and 30 days

We have reviewed the record proper and bili in the county jail. The record is before us of exceptions, and find no error therein warwithout statement of facts or bills of excep- ranting a reversal. The judgments are theretion. The information and complaint appear fore affirmed; and it is so ordered. to sufficiently charge the offense, and the charge All concur.

END OF CASES IN VOL. 248

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INDEX-DIGEST

Pok

JKEY NUMBER SYSTEM

THIS IS A KEY-NUMBER INDEX

It Supplements the Decennial Digests, the Key-Number Series and

Prior Reporter Volume Index-Digests

ABATEMENT AND REVIVAL. Co 50 (4) (Ky.). Actions against employer and III. DEFECTS AND OBJECTIONS AS

To racing association held improperly joined. PARTIES AND PROCEEDINGS.

Brooks v. Madden, 503. 39 (Tex.Civ.App.) Action against corpora: default for installment due waives right of

Cm 53(3) (Mo.App.) Permitting judgment by tion not defeated by dissolution after filing of obligors to complain of splitting cause of action petition.-Farmers' Mill & Elevator Co. v. for whole amount of note.-Putthoff v. Walker, Hodges, 72.

619. ACCORD AND SATISFACTION.

ADJOINING LANDOWNERS. Omw 5 (Tex.Civ.App.) Promise to remedy defi- See Boundaries. ciencies in articles sold or cancel notes given therefor must be supported by consideration.

ADMINISTRATION. Merchants' Nat. Bank v. Voudouris, 810.

See Executors and Administrators. 8(1) (Tex.Civ.App.) Part payment of debt not sufficient consideration for promise to release from balance.-Baker v. Coleman Ab

ADVERSE POSSESSION. stract Co., 412.

I. NATURE AND REQUISITES.
ACCOUNT.

(B) Actual Possession. II. PROCEEDINGS AND RELIEF.

24 (Ky.) Occasional trespass does not show

continuous occupancy.--Asher v. Gibson, 862. w 18 (Ky.) Evidence held to show account contained many, but not all, of the items of

(E) Duration and Continuity of Posdealings between the parties.-Duncan's Ex'rs

session. v. Porch, 526.

Om 44 (Ky.) Must be uninterrupted.--Asher v. ACCOUNT STATED.

Gibson, 862

Ou 55 (Tex.Civ.App.) Delay in probate of will Om8 (Ark.) Agreement on price of damaged under which owner takes is not disability incotton held binding in subsequent action to sur-terrupting continuity of possession.-Smith v. charge account stated.--Hawkins Bros. v. Les- Lancaster, 472. ser-Goldman Cotton Co.. 275.

57 (Tex.Civ.App.) Claimant need not em 19(1) (Ark.) Plaintiff, seeking to surcharge prove owner's sanity during prescriptive periaccount stated, has burden.-Hawkins Bros. v. od, nor that he was not under disability of inLesser-Goldman Cotton Co., 275.

sanity.-Smith v. Lancaster, 472.

Paww57 (Tex.Civ.App.) Evidence held insufficient ACTION.

to establish title in plaintiffs' parents.-Evans See Abatement and Revival; Dismissal and v. Smoot, 742. Nonsuit.

(G) Payment of Taxes. II. NATURE AND FORM.

93 (Ark.) Payment of taxes for 7 years Om 27 (5) (Tex.Civ.App.) Tort may grow out under color of title makes title.-McFarlane of or be coincident with contract.-Sandoval v. Morgan, 257. v. Eagle Pass Lumber Co., 132.

III. PLEADING, EVIDENCE, TRIAL, AND III. JOINDER, SPLITTING, CONSOLIDA

REVIEW.
TION, AND SEVERANCE.

ww112 (Tex.Civ.App.) Plaintiffs must estabwww.45(1) (Tex.Civ.App.) Causes of action for lish title by preponderance of evidence.-Evans killing mules at different times and places held v. Smoot, 742. properly joined.-St. Louis Southwestern Ry. Co I 14(1) (Ky.) Evidence held to sustain Co. of Texas v. Cox, 1101,

verdict in favor of adverse posessor.–Barnes 46 (Tex.Civ.App.) Surety's suit to set aside v. Duncan, 521. fraudulent transfers of guardian's property will4(1) (Ky.) Evidence held insufficient to may be joined with suit on note executed by show adverse possession for requisite period.guardian and others to replace money convert- Baker v. Campbell, 1028. ed by him.-Fidelity & Deposit Co. of Mary-On 115(1) (Tex.Com.App.) Presumption of land v. Risien, 1105.

deed from long claim of ownership and nonclaim m47 (Tex.Civ. App.) Against corporation for by ostensible owner is question for jury.balance due on contract cannot be joined with Stephens v. House, 30. action against directors for funds misappropriated.--Hart Shoe Co. v. Adams, 475.

AFFIDAVITS. Cm 50(3), (Tex.Civ.App.) Causes of action of three plaintiffs for breach of contract to pur-C5 (Tex.Cr. App.) Verification of motion for chase 'grain held properly joined.-Farmers' new trial before appellant's attorneys improper. Mill & Elevator Co. v. Hodges, 72.

-Morgan v. State, 353. 248 S.W.-71

(1121)

See Principal and Agent.

AGENCY.

See Carriers,

447.

AGRICULTURE.

6 (Tex.Civ.App.) Agreement between cotton grower and co-operative marketing asso-162(3) (Tex. Civ.App.) Partial compliance ciation unenforceable for want of mutuality with terms of judgment held not to estop apand consideration.-Texas Farm Bureau Cotton peal therefrom.-Farquharson v. Fresno Oil Ass'n v. Stovall, 1109. Co., 481.

Statute authorizing co-operative marketing contracts does not validate contracts devoid of V. PRESENTATION AND RESERVATION mutuality.-Id. IN LOWER COURT OF GROUNDS OF REVIEW. (A) Issues and Questions in Lower Court.

ALTERATION OF INSTRUMENTS.

2 (Tex.Civ.App.) Whether alteration in instrument will void it depends upon materiality of change.-Starks v. Loftus, 1090. 12 (Tex.Civ.App.) Alterations in deed made171(3) (Ky.) Rejoinder treated as filed, with consent of grantor did not affect validity. when point that it was not filed was not raised -Starks v. Loftus, 1090. below.-Sutton v. Sovereign Camp, W. O. W.,

169 (Mo.App.) Issues not presented in trial court not considered.-State ex inf. Barrett ex rel. Ryan v. Huffman, 985.

17 (Tex.Civ.App.) A rule that material al

540.

teration voids instrument should not defeat title honestly acquired.-Starks v. Loftus, 1090. 29 (Tex.Civ.App.) Evidence held sufficient to show alterations in deed made with consent of grantor.-Starks v. Loftus, 1090.

ANIMALS.

207-229; Railroads,

50 (2) (Ark.) County court held not to have jurisdiction to hear stock law election contest. -Patterson v. Adcock, 904.

Circuit court held to have jurisdiction to hear stock law election contest; chancery court has jurisdiction when property rights involved.-Id. ANTI-TRUST LAWS. See Monopolies, 17-21.

APPEAL AND ERROR.

See Certiorari: Courts, 231: Criminal Law,
1004-1187; Exceptions, Bill of.
For review of rulings in particular actions or
proceedings, see also the various specific top-

ics.

missed.-Chesapeake & O. Ry. Co. v. McMath's Adm'r, 1051.

411-119.

(B) Estoppel, Waiver, or Agreements Affecting Right.

(B) Objections and Motions, and Rulings

Thereon.

185(2) (Tex. Civ.App.) Failure to allege value of mortgaged property fundamental error requiring reversal.-Davis v. First Nat. Bank, ap

189 (3) (Tex.Civ.App.) Exception on peal to dismissal of party held too late.-St. Louis, B. & M. Ry. Co. v. Morris, 57.

193(1) (Tex.Čiv.App.) Error only reached by special exception not fundamental.-Hart v. H. R. & A. T. Mast, 1099.

193 (5) (Ky.) Failure of petition to allege performance of condition cannot be first raised on appeal.-Maynard v. Farley, 1022.

sub

III. DECISIONS REVIEWABLE. (C) Amount or Value in Controversy. 58 (Tex.Civ.App.) Interest on judgment not216(1) (Tex.Civ.App.) Objection to construed as damages in determining amount in mission of special issues held not tenable in controversy.Sovereign Camp, W. O. W., v. absence of request for giving of prepared inTruehardt, 757. struction.-Galveston, H. & S. A. Ry. Co. v. McSpadden, 454.

195 (Tex.Civ.App.) That court entertained supplemental petition setting out special damages, instead of requiring amended petition. held not fundamental error.-Coulter v. Gulf, C. & S. F. Ry. Co., 788.

205 (Tex,Civ.App.) Objection to auditor's report, not filed as required by statute, cannot be heard on appeal.-Farquharson v. Fresno Oil Co., 481.

209 (4) (Tex.Civ.App.) Assignment that respondent failed to show title to oil lease held without merit.-Farquharson v. Fresno Oil Co., 481.

80(3) (Tex.Civ.App.) Judgment directing application of proceeds of foreclosure sale to satisfaction of intervener's debt, and that balance be held subject to court's orders, held final; "final judgment."-Ware v. Jones, 429. 80(3) (Tex.Civ.App.) No appealable judgment while necessary for court to determine some issue of fact or law.-Fort Worth Acid Works v. City of Fort Worth, 822.

IV. RIGHT OF REVIEW.
(A) Persons Entitled.

151 (2) (Ky.) Appeal by defendant against whom judgment was not rendered must be dis

221 (Ky.) Contention as to measure of

(D) Finality of Determination. 76(1) (Ky.) Appellee's right to file tran- damages not considered without exception or script not affected by motion to vacate judg-requested instructions on that ground.—Louisment made after adjournment of the term.ville & N. R. Co. v. Wood, 871. Cooper v. Williamson, 245.

76(1) (Tex.Civ.App.) Judgment not providing process or means for collection is not final.-Grice v. American Ry. Express Co., 82. Judgment against nonresident defendant to 231 (3) (Tex.Civ.App.) No reversal where extent of property garnished is a "final judg-objection is made to admission of all evidence, ment."-Id. part of which was admissible.-Smith v. Word,

221 (Mo.) Failure to request instructions as to measure of damages not a waiver of right to complain for inadequacy.-Kelly v. Columbia Box Co., 589.

76(1) (Tex.Civ.App.) Finality of judgment 734. depends on whether issues were finally deter-231(5) (Tex.Civ.App.) Objection to evimined.-Ware v. Jones, 429. dence as "immaterial, irrelevant, and inconsistent" will not raise the question that it impeaches another witness for the same party.-Werth v. Tevis, 767.

232 (2) (Mo.App.) Objection to evidence, not made below, not reviewable.-Noland v. Morris & Co., 627.

(C) Exceptions.

257 (Mo.) Exception must be preserved to improper granting or refusal of change of venue.-State ex rel. Burns v. Shain, 591.

265(2) (Ky.) In absence of exception to conclusions of law, no error presented for review.-City Nat. Bank v. Wallace, 203.

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