V. H. Stark, Judge. Byron Gray was convicted of murder, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Sabine county of murder, and his punishment fixed at 20 years in the penitentiary. Neither a statement of facts nor a bill of exceptions appears in the record, and the indictment being in proper form, and the charge seeming to submit the law correctly, we have no choice except to direct an affirmance. GREER v. STATE. (No. 7460.) (Court of Criminal Appeals of Texas. Feb. 21, 1923.) Appeal from Tarrant County Court at Law; P. W. Seward, Judge. H. O. Greer was convicted of wife desertion, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Rusk county of selling intoxicating liquor. and his punishment fixed at one year in the penitentiary. The record presents neither statement of facts nor bill of exMORROW, P. J. The appellant was conceptions. The indictment charges in regular victed of the offense of wife desertion; punform that appellant, on the 23d 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.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. DAVIS v. STATE. (No. 7587.) (Court of Criminal Appeals of Texas. March 14, 1923.) Appeal from District Court, Knox County; J. H. Milam, Judge. Oscar Davis was convicted of murder, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Knox county of murder, and his punishment fixed at 25 years in the penitentiary. The record is before us without a bill of exceptions or statement of facts. The indictment charges murder in the usual form, and the charge of the court seems to submit the law applicable. No error appearing, an affirmance is ordered. FOWLER v. STATE. (No. 7452.) (Court of Criminal Appeals of Texas. Feb. 21, 1923.) Appeal from District Court, Young County; H. R. Wilson, Judge. Blondy Fowler was convicted of possessing intoxicating liquors for the purposes of sale, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Young county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at one year in the penitentiary. The record is before us without statement of facts or bill of exceptions. The indictment sufficiently charges the offense, and same is submitted in appropriate language to the jury by the court. Finding no error in the record, an affirmance is ordered. GRAY v. STATE. (No. 7634.) (Court of Criminal Appeals of Texas. March 14, 1923.) Appeal from District Court, Sabine County; JACKSON v. STATE. (No. 7404.) (Court of Criminal Appeals of Texas. Feb. 7, 1923. Rehearing Denied March 7, 1923.) Appeal from District Court, Wise County; F. O. MeKinsey, Judge. T. M. Jackson was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed. Frank J. Ford, of Decatur, for appellant. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Wise county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary. The record is before us without statement of facts or bills of exception. The indictment is according to approved forms. The charge of the court submitted the offense, and the jury have found appellant guilty. There being no error shown, the judgment of the trial court will be affirmed. LAINE v. STATE. (No. 7509.) (Court of Criminal Appeals of Texas. Feb. 28, 1923.) Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. Billie Laine was convicted of burglary, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. HAWKINS, J. Conviction is for burglary, with a punishment of two years in the penitentiary. There are no bills of exception in the record, and no statement of facts. The judgment is affirmed. MENEFEE v. STATE. (No. 7494.) (Court of Criminal Appeals of Texas. Feb. 28, 1923.) 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 fixed at confinement in the penitentiary for one year. The indictment is regular; no facts are brought up for review, and no rulings of the trial court are brought forward for revision by bill of exceptions. The judgment is affirmed. MILLS v. STATE. (No. 7627.) (Court of Criminal Appeals of Texas. March 14, 1923.) Appeal from District Court, Camp County; R. T. Wilkinson, Judge. Joe Mills was convicted of selling intoxicating liquor, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen:, for the State. HAWKINS, J. Conviction is for selling intoxicating liquor; punishment is confinement in the penitentiary for one year. The record is before us without statement of facts or bills of exception. The judgment is affirmed. RUSSELL et al. v. STATE. (No. 7439.) (Court of Criminal Appeals of Texas. Feb. 14, 1923.) Appeal from Limestone County Court; H. F. Kirby, Judge. W. D. Russell and another were convicted of exhibiting a dancing performance, and they appeal. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellants were convicted in the county court of Limestone county of exhibiting a dancing performance, and their punishment fixed at a fine of $100 and 30 days in the county jail. The record is before us without statement of facts or bills of exception. The information and complaint appear to sufficiently charge the offense, and the charge STATE v. CLEAVER et al. (No. 24135.) (Supreme Court of Missouri. Division No. 2. Feb. 23, 1923.) Appeal from Circuit Court, Carter County; E. P. Dorris, Judge. Rowen F. Cleaver and John Jordan were convicted Judgment affirmed. of robbery, and appeal. Jesse W. Barrett, Atty. Gen., and R. W. Otto, Asst. Atty. Gen. (Ellison A. Poulton, of Mansfield, of counsel), for the State. WALKER, J. The appellants were charged in an information filed in the circuit court of Carter county with highway robbery. Upon a trial they were convicted as charged and the punishment of each assessed at five years' imprisonment in the penitentiary. From this judgment an appeal has been perfected to this court. Prior to the perfection of the appeal, the judgments were each commuted by the trial court to five years' imprisonment in the boys' reformatory. We have not been furnished with a brief on the part of the appellants. A volun Appellants entered a box car at Midco, a town in Carter county, with drawn revolvers, and compelled the occupants of same, who were engaged in a dice game, to deliver to them money in the amount of $19.20. The appellants were not participants in the game. tary statement made by them admitted the truth of the foregoing facts. Their contention at the trial was that they participated in the dice game and had lost $30, and the "holdup" was simply to recover their money from the other players. The jury gave no credence to their testimony. We have reviewed the record proper and bili of exceptions, and find no error therein warranting a reversal. The judgments are therefore affirmed; and it is so ordered. All concur. END OF CASES IN VOL. 248 It Supplements the Decennial Digests, the Key-Number Series and ABATEMENT AND REVIVAL. III. DEFECTS AND OBJECTIONS AS то 39 (Tex.Civ.App.) Action against corporation not defeated by dissolution after filing of petition. Farmers' Mill & Elevator Co. v. Hodges, 72. ACCORD AND SATISFACTION. 50(4) (Ky.) Actions against employer and racing association held improperly joined.Brooks v. Madden, 503. 53(3) (Mo.App.) Permitting judgment by default for installment due waives right of obligors to complain of splitting cause of action, for whole amount of note.-Putthoff v. Walker, 619. ADJOINING LANDOWNERS. 5 (Tex.Civ.App.) Promise to remedy defi- See Boundaries. ciencies in articles sold or cancel notes given' therefor must be supported by consideration.Merchants' Nat. Bank v. Voudouris, 810. 8(1) (Tex.Civ.App.) Part payment of debt not sufficient consideration for promise to release from balance.-Baker v. Coleman Abstract Co., 412. ACCOUNT. II. PROCEEDINGS AND RELIEF. 18 (Ky.) Evidence held to show account contained many, but not all, of the items of dealings between the parties.-Duncan's Ex'rs v. Porch, 526. ACCOUNT STATED. See ADMINISTRATION. Executors and Administrators. ADVERSE POSSESSION. 1. NATURE AND REQUISITES. 24 (Ky.) Occasional trespass does not show continuous occupancy.-Asher v. Gibson, 862. (E) Duration and Continuity of Possession. 44 (Ky.) Must be uninterrupted.-Asher v. Gibson, 862. 55 (Tex.Civ.App.) Delay in probate of will 8 (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. 19(1) (Ark.) Plaintiff, seeking to surcharge account stated, has burden.-Hawkins Bros. v. Lesser-Goldman Cotton Co., 275. ACTION. 57 (Tex.Civ.App.) Claimant need not prove owner's sanity during prescriptive peri[od, nor that he was not under disability of insanity.-Smith v. Lancaster, 472. 57 (Tex.Civ.App.) Evidence held insufficient to establish title in plaintiffs' parents.-Evans See Abatement and Revival; Dismissal and V. Smoot, 742. II. NATURE AND FORM. 27(5) (Tex.Civ.App.) Tort may grow out of or be coincident with contract.-Sandoval v. Eagle Pass Lumber Co., 132. III. JOINDER, SPLITTING, CONSOLIDA- (G) Payment of Taxes. 93 (Ark.) Payment of taxes for 7 years under color of title makes title.-McFarlane v. Morgan, 257. III. PLEADING, EVIDENCE, TRIAL, AND sustain 112 (Tex.Civ.App.) Plaintiffs must estab45(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.114(1) (Ky.) Evidence held to 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 114(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-115(1) (Tex.Com.App.) Presumption of land v. Risien, 1105. deed from long claim of ownership and nonclaim by ostensible owner is question for jury.— Stephens v. House, 30. 47 (Tex.Civ.App.) Against corporation for balance due on contract cannot be joined with action against directors for funds misappropriated.-Hart Shoe Co. v. Adams, 475. AFFIDAVITS. 50(3) (Tex.Civ.App.) Causes of action of three plaintiffs for breach of contract to pur-5 (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. 248 S.W.-71 -Morgan v. State, 353. (1121) 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. 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 made with consent of grantor did not affect validity. -Starks v. Loftus, 1090. 17 (Tex.Civ.App.) A rule that material al 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. 185(2) (Tex.Civ.App.) Failure to allege value of mortgaged property fundamental error requiring reversal.-Davis v. First Nat. Bank, 411-119. 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. 189 (3) (Tex.Civ.App.) Exception on appeal to dismissal of party held too late.-St. Louis, B. & M. Ry. Co. v. Morris, 57. 193(1) (Tex.Civ.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. 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. See Certiorari: Courts, 231; Criminal Law, 205 (Tex,Civ.App.) Objection to audi1004-1187; Exceptions, Bill of. For review of rulings in particular actions or proceedings, see also the various specific top ics. tor'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. III. DECISIONS REVIEWABLE. (C) Amount or Value in Controversy. 58 (Tex.Civ.App.) Interest on judgment not216(1) (Tex.Civ.App.) Objection to subconstrued as damages in determining amount in controversy. Sovereign Camp, W. O. W., v. Truehardt, 757. (D) Finality of Determination. mission of special issues held not tenable in absence of request for giving of prepared instruction.-Galveston, H. & S. A. Ry. Co. v. McSpadden, 454. 221 (Ky.) Contention as to measure of 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 extent of property garnished is a "final judgment."-Id. 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. 231 (3) (Tex.Civ.App.) No reversal where objection is made to admission of all evidence, part of which was admissible.-Smith v. Word, 734. 76(1) (Tex.Civ.App.) Finality of judgment 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. 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. 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 151(2) (Ky.) Appeal by defendant against conclusions of law, no error presented for rewhom judgment was not rendered must be dis-view.-City Nat. Bank v. Wallace, 203. |