Imágenes de páginas

Om784 (4) (Mo.). Defendant entitled to in- | XIII. MOTIONS FOR NEW TRIAL AND IN struction as to circumstantial evidence, where

ARREST. such evidence relied on to show corpus delicti. Cm913(1) (Tex.Cr.App.) Plea to jurisdiction --State v. Bennett, 924.

first made as grounds for new trial too late. Cm784(!) (Tex.Cr.App.) Witness' nonrecog- --Koehan v. State, 365. nition of party assaulted at moment of blow Omw9251/2(3) (Tex.Cr.App.) Refusal of new held not to require charge on circumstantial trial for misconduct of juror not an abuse of evidence.-Windham v. State, 51.

discretion.--Todd v. State, 695. Ow787(2). (Tex.Cr.App.) Charge that failure 930 (Ark.) Manifestation of popular sentiof accused to testify should not be considered ment prejudicial to accused requires new trial. against him or discussed by jury in retirement --Pendergrass v. State, 914. held not erroneous.-Lovel v. State, 349. Cam930 (Tex.Cr.App.) Refusal to grant new

789(4) (Tex. Cr. App.) Customary charge trial because of demonstration of audience not on reasonable doubt proper.-Sagu v. State, 390. an abuse of discretion.-Todd v. State, 695.

790 (Ky.) Duty to instruct on all law ap Demonstrations by spectators not a ground plicable.-Howard v. Commonwealth, 1059. for a new trial unless jury is prejudiced thereOw796 (Tex.Cr.App.) Where statute denies by.--Id. right to suspended sentence, instruction there- 936(4) (Ky.) Statement by prosecuting on properly denied.-Blonk v. State, 375.

witness held not ground for surprise in testiEm796 (Tex.Cr.App.) For sale before amendment of Dean Law was in effect, defendant en-936 (6) (Ky.) Claim of surprise cannot be

mony.-Dennison y. Commonwealth, 878. titled to submission of suspended sentence.- first made on motion for new trial.-Dennison Wyatt v. State, 1076.

v. Commonwealth, 878. 814(3(Ky.) Law inapplicable to evidence m938(1) (Tex.Cr.App.) Trial for newly 'disshould not be given to the jury.-Daniel v. Com-covered evidence not granted unless movant monwealth, 511. Cum 814(17) (Ark.) Instruction on sufficiency State, 349.

was unaware of purported testimony.-Lorel v. of testimony to support conviction, where state 938(1) (Ky.) Cumulative and impeaching relies wholly on circumstantial evidence, prop- evidence does not require new trial.-Dennierly refused.--Wood v. State, 568.

son v. Commonwealth, 878. 814(17) (Tex.Cr.App.) Evidence held to warrant denial of instruction concerning cir- ed evidence of witness present at trial will

ww938(4) (Tex.Cr.App.) Rule tbat undiscloscumstantial evidence.--Blonk v. State, 375. Cm818 (Ky.) Admonition limiting effect of exceptions.-Anderson v. State, 681.

not be regarded as newly discovered subject to evidence of other offenses held applicable to both witnesses testifying thereto.—Burns v. shown to authorize new trial for newly dis

Cw939(1) (Tex.Cr.App.) Sufficient diligence Commonwealth, 848. Cw822(1) (Ky.) Instructions must be read 939(2) (Ky.) Motion held not to show dili

covered evidence.-Anderson v. State, 681. together.-Dennison v. Commonwealth, 878.

ww822(1) (Mo.) Omission from instruction gence with reference to new evidence.-Denninot considered, where instructions as whole 940 (ky.) New trials hesitatingly granted cover every phase.-State v. Williams, 922.

for new evidence.—Daniel v. Commonwealth, Cm822(1)(Tex.Cr.App.) Whole charge con

511. sidered to determine prejudice.-Bowlin

ww942(1) (Ark.) Newly discovered evidence State, 396.

impeaching witness is not ground for new trial. cm 823(15) (Ky.) Instruction omitting

re;-Pendergrass v. State, 914. quirement to find beyond reasonable doubt held 942(2) (Ky.) New' evidence as to contracured.-Dennison y. Commonwealth, 878.

dictory statements by witness for prosecution

does not require new trial.-Delong v. Com(H) Requests for Instructions,

monwealth, 839. 826 (Tex.Cr.App.) Requested instructions -951(1).(Mo.) Counsel must file motions must be presented at time of trial and before for new trial in time provided by statute and main charge.--Ilarris v. State, 54.

have proper entry made on record.- State v. Cm829 (1) Requested charges covered need not 95145) (Mo.) Statute stating within what

Whalen, 931. be given. --(Ark.) Spier v. State, 281;

time motion for new trial shall be made held (Tex.Cr.App.) Bowlin v. State, 396.

mandatory.--State v. Whalen, 931. Cm829(5) (Ark.) Requested instruction there w957 (2) (Tex.Cr.App.) Jurors cannot imwas no duty to retreat held covered by charge peach own verdict by affidavit stating evidence

misunderstood.-Blonk v. State, 375. given.-Pendergrass v. State, 914. ww829(5) (Tex.Cr.App.) In view of main ma 970 (6) (Ark.) Refusal to compel state to charge, no need to give special charge on self- elect between counts held not ground for ardefense.-Keith v. State, 384.

rest of judgment.--Wood v. State, 568.
Om970(6) (Tex.Cr.App.) Question of duplic-

ity cannot be raised for first time in motion for (J) Custody, Conduct, and Deliberations arrest.-Melley v. State, 367. of Jury:

Omw974(2) (Mo.) Counsel must file motions C857 (2) (Tex. Cr. App.) Statements made in arrest in time provided by statute and have by jurors not misconduct requiring reversal of proper entry made on record.--State v. Whalconviction.-Todd y, State, 635. w858(3) (Tex.Cr.App.) Permitting jury to take confession with them in their retirement XIV. JUNGMENT, SENTENCE, AND FINAL not error.-Todd v. State, 695.


ww978 (Tex.Cr.App.) Denying right to (K) Verdict.

pended sentence held not in excess of legislaCw878(3) (Mo.) Verdict finding accused guilty Cm982 (Tex.Cr.App.) State may show ap;

tive authority.-Blonk v. State, 375. on first count but not guilty, on second count plicant for suspended sentence to be of bad held regular and sufficient.-State v. Whitman, 937.

repute.-Shirley v. State, 692. Cwm878(5) (Tex.Cr. App.) Verdict of "guilty as charged" following submission of one of two

XV. APPEAL AND ERROR, AND counts of indictment is sufficient.-Connelly v.

CERTIORARI. State, 342.

(A) Form of Remedy. Jurisdiction, and 885 (Tex. Cr. App.) Defendant pleading

Right of Review. guilty cannot complain that jury did not recom- mm 1004 (Mo.) Statutes authorizing appeals

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For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER (B) Presentation and Reservation in (C) Proceedings for Transfer of Canse, Lower Court of Grounds of Review.

and Effect Thereof. m1032(5). (Tex. Cr. App.) Conviction under Cw1074 (Mo.) Affidavit for appeal under statcount charging manufacture of intoxicating liq- ute must be made by defendant.-State y. uors without negativing exceptions reversed,

Campbell, 927. though count not attacked in lower court.-Davidson v. State, 383.

(D) Record and Proceedings Not in Rec1032(6) (Ky.) Right to object to mis

ord. joinder is waived by failure to require election

Jurisdiction of Supreme by demurrer or motion. -Dennison v. Com-Om 1087(2) (Mo.) monwealth, 880.

Court not invoked on constitutional grounds, in Om 1036(1) (Ky.) Objection on appeal that -State v. Gooch, 929.

absence of record entry of bill of exceptions. evidence was incompetent not available in ab- 10908) (Tex.Cr.App.) Without statement sence of objection below.-Sorrels v. Com- of facts or bill of exceptions, errors in admismonwealth, 205.

sion or rejection of evidence not reviewable.Com 1036(1) (Ky.) Competency of evidence not Koehan v. State, 365. objected to cannot be reviewed.--Springs v. em 1091 (11) (Tex.Cr. App.) Bills of exceptions Commonwealth, 535.

in question and answer form held not entitled 1036(1) (Mo.) Timely objection must be to consideration.-Blonk v. State, 375. made to questions indicating answer.-State Om 1091(II) (Tex.Cr.App.) Bill of exceptions v. Delcour, 606.

should not consist of questions and answers. Om 1036(2) (Tex.Cr.App.) That objection to Wade v. State, 382. testimony and request for instructions would1091 (11) (Tex.Cr.App.) Bill of exceptions have added to injury no excuse for silence.- in improper form not considered.-Bowlin v. Simmons y. State, 392.

State, 396. Om 1037(2) (Ark.) Reference by state's coun- cm 1091 (11) (Tex.Cr.App.) Bills of exceptions sel to demonstration by spectators held should not consist of questions and answers.not reversible error, where no correction was Shirley v. State, 692. requested.-Pendergrass v. State, 914.

Om 1092(6) (Tex.Cr.App.) Instruction not Om 1037(2) (Mo.) Request for correction nec- considered, where bill of exceptions filed late.-essary to review_prosecuting attorney's argu

Harris v. State, 54. ment.--State v. Dengel, 603.

Om 1092(7) (Tex.Cr.App.) Bills of exceptions,

filed after time allowed cannot be considered Om 1037 (2) (Tex.Cr.App.) Bills complaining of failure to instruct jury not to consider cer

on appeal.-Keck v. State, 1074. tain argument not considered.--Simmons

v. 1092 (13)

(Tex.Cr.App.) Exception not State, 302.

approved will not be considered as having been Em 1038(1) (Mo.) Objection to instruction not presented before argument or reading of main made until motion for new trial held made charge.--Rhodes v. State, 679. too late.--State v. Walker, 947.

Cam 1092(14) (Tex.Cr.App.) Objection to opinOn 1038(1) (Tex.Cr.App.) Instruction

ion testimony not reviewable where there was not

no certification by trial court.-Harris v. State, considered, where there was no written ob

54. jection.--Harris v. State, 54.

Om 1098 (Tex.Cr.App.) Statement of facts must Omro 1038(1) (Tex.Cr.App.) Objection to charge be in narrative form.---Fenton v. State, 363. to be reviewable must be in writing.-Bowlin v. Eww1099(6) (Tex.Cr. App.) Statement of facts State, 396.

filed after time allowed, cannot be considered Om 1038(3) (Tex.Cr.App.) Exception to charge on appeal.-Keck v. State, 1074. for failure to include particular point sufficient com 104(3) (Mo.) Appellant must personally ly saves it for review, though no special charge see that transcript is in proper form and conrequested.--Forrester v. State, 40.

tains necessary entries.-State y. Little, 926. C1038(3) (Tex.Cr.App.) No error in failing Law permitting filing of bill of exceptions any to submit issue of suspended sentence, where time before appellant must serve abstract in no instruction requested. - Melley v. State, 367. appellate court does not change requirement Cow 1044 (Ky.) Right to object to misjoinder that transcript show

filing in trial court.--Id. is waived by failure to require election by a 1109(3) (Mo.) Bill of exceptions not condemurrer or motion.-Dennison v. Common- sidered where transcript does not show filing in wealth, 880.

trial court.-State v. Little, 926. Eww1054(1) (Ky.) Competency of evidence not C1109(3). (Tex. Cr. App.) Appeal dismissed, excepted to cannot be reviewed.-Springs v. dates of beginning and end of trial term.-Cur

where caption in transcript does not contain Commonwealth, 535. Om 1054(1) (Mo.) Admission and refusal of Col111(2) (Ark.) Statement by court as to

tis v. State, 362. evidence not reviewed, in absence of exceptions. demonstration must be accepted as true.--Pen-State v. Todd, 939.

dergrass v. State, 914. Cm 1055 (Mo.) Exceptions necessary to

re- lamellll(4) (Tex. Cr. App.) Appellate court view prosecuting attorney's argument.--State bound by judge's certificate contradicting rev. Dengel, 603.

cital in appellant's bill of exception.-Simmons 1056(1) (Tex.Cr.App.) No error in failing v. State, 392. to submit issue of suspended sentence, where noll 12 (Mo.) Record of circuit court cannot exception taken.-Melley v. State, 367.

be impeached on appeal by affidavits foreign to 1056(1) (Tex.Cr.App.) Exception to charge record.-State v. Whalen, 931. must show it was presented before main charge om 1112 (Tex.Cr.App.) Bill prepared by court was read or argument begun.-Rhodes v. State, can be controverted only by bystanders bill.679.

McKnight v. State, 377. Cu 1063(1) (Mo.) Bill of exceptions not con-m1115(1) (Mo.App.) Failure to act upon sidered, where motions for new trial and in ar- motion to quash search warrant will not be rest were not filed until after judgment and considered in absence of showing of ruling sentence.-State v. Baird, 596.

and exceptions.-State v. Graves, 976. Record proper only may be considered in ab- rum 1117 (Mo.) Application for change of sence of motion for new trial and in arrest. venue must be incorporated in bill of excep-Id.

tions to be reviewed.-State v. Baird, 596. C 1064(1) (Mo.) Motion for new trial held Coll18 (Mo.) Application for continuance too indefinite for review.-State v. Whitman, inust be incorporated in bill of exceptions to 937.

be reviewed.--State v. Baird, 596.

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1120(3) (Tex.Cr.App.) Objection to ques- 1 cm 1156(5). (Ark.) Denial of new trial for tion not considered in absence of answer in rec- demonstration by spectators not disturbed unord.-Bowlin v. State, 396.

less discretion manifestly abused.-Pendergrass cm 1120(8) (Tex.Cr.App.) Objection to opin- v. State, 914. ion testimony not reviewable where not shown on 1156 (5) (Tex.Cr.App.). Overruling motion in what manner witness lacked knowledge.- for new trial because of misconduct of jury. not Harris v. State, 54.

to be overturned on appeal unless clearly Can I 122(1) (Tex.Cr.App.) Exception to re- wrong.–Todd v. State, 695. fusal of special charges must appear by nota-Cm 1159(1). (Tex.Cr.App.) Jury's assessment tion or bill of exceptions.-Rhodes v. State, of penalty for aggravated assault within statu679.

tory limitations not disturbed.-Windham 1124(1) (Mo.) Errors assigned in motion State, 51. for new trial, not included in the record, not Format 1159(1) (Tex.Cr.App:) Issue of fact deterconsidered on appeal.-State v. Delcour, 606. mined by jury not disturbed on appeal.-Smith

v. State, 346. (E) Assignment of Errors and Briefs.

1159(2) (Ky.) Court of Appeals may re

verse conviction flagrantly against evidence.em 1 129(6) (Mo.). Definite general assign- Partin v. Commonwealth, 489. ments of error bring up for review admission I 159(3) (Mo.) Conviction for robbery will or rejection of evidence.--State v. Whitman, not be reversed where state has made prima 937.

facie case.--State v. Dengel, 603. Com 1130(4) (Mo.) Duty, of appellate court, Cm1159 (3) (Tex.Cr.App.) Finding of sanity on where accused files no brief, is to examine rec- sufficient evidence conclusive on appeal.-Sagu ords to ascertain whether he has had fair trial.

v. State, 390. --State y, Todd, 939.

w1159(4) (Ky.) Jury is final arbiter of cred

ibility of witnesses.-Bush v. Commonwealth, (G) Review.

522. Cm1134(2) (Tox. Cr. App.) Refusal of trial em 1 159(4) (Ky.) Conviction based on relief judge to sustain objection to argument to be of single witness for prosecution contradicted given weight.-Bowlin v. State, 396.

by defendant cannot be reversed.-Dennison v. Can I 134(10) (Ky.) Action of trial court in Commonwealth. 878. overruling motion to quash indictment final, and 1159(5) (Tex.Cr.App.) Verdict on question not subject to review for error.--Sowders v. of identity binding on appellate court.-McCommonwealth, 187.

Knight v. State, 377. C 1137(5) (Tex.Cr.App.) Irrelevant testimony 1160 (Mo.) Approved verdict not disturbheld not so prejudicial as to be incurable by in- ed.-State v. Kendricks, 578. struction, and, where defendant objected to in cm 1166(1) (Ark.) Refusal to require indorsestruction, he cannot complain.—Wells v. State, ment of witness' name on indictment held not 378.

reversible error.-Wood v. State, 568. Cm 1144(1/2) (Mo.) Presumption that trial Cw116612 (I) (Ark.) Demonstration by speccourt duly considered questions presented and tators and deputy sheriff held cured by court's found against appellant prevails in absence of action. Pendergrass v. State, 914. contrary information.-State v. Todd, 939. 1144(1/2) (Tex. Cr. App:) Everything pre-jurors not examined upon their voir dire not

www11661/2(6) (Tex.Cr.App.) Refusal to retire sumed in favor of regularity of proceedings, where no bills of exception 'nor statement of reversible error, unless injury shown.-Blonk v.

State, 375. facts.-Crisman v. State, 343.

by prosecution C 1144(5) (Tex.Cr.App.) Lack of jurisdiction Fun! 167(5) (Ky.) Election in county court at law not presumed.-Koehan held to cure overruling of demurrer for duv. State, 364.

plicity.-Dennison v. Commonwealth, 880. Cm1144(8), (Tex.Cr.App.) Ruling of trial Paw 1169(1) (Tex.Cr.App.) Admission of evicourt that juror was qualified presumed cor-dence as to undisputed facts held immaterial. rect.-Todd v. State, 695.

-Cochrain v. State, 43. CI 144(13) (Tenn.) Defendant not testifying Swo 1169(2). (Tex.Cr.App.) Erroneous admispresumably guilty.- Baker v. State, 518.

sion of testimony not reversible error where Cal 144(17) (Tex.Cr.App.) Where no bills of same facts are proved by other testimony withexception or statement of facts, court will pre-out objection.-Gurski v. State, 353. sume facts justified heaviest penalty.-Crisman Cow 1169(2), (Tex.Cr.App.) Admission of eviv. State, 343 (first case).

dence held harmless.--Staton v. State, 356. 1144(17) (Tex.Cr.App.) Everything pre-C 1169 (5) (Tex.Cr.App.) Irrelevant testimony sumed in favor of correctness of judgment heid not so prejudicial as to be incurable by inwhere no bills of exception nor statement of struction.---Wells v. State, 378. facts.-Crisman v. State, 313 (third case). Cw1169(5) (Tex.Cr.App.) Withdrawing quesEmo 1144(17) (Tex.Cr.App.) Judgment will be tion and answer rendered admission harmless.-presumed correct in absence of statement of Bowlin v. State, 396. facts or bills of exception.-Dorsett v. State. 1169 (6) (Tex.Cr.App.) Admission of search 1075. Ci 151 (Tex.Cr.App.) Refusing continuance to ble error.-Gurski v. State, 353.

warrant, affidavit, and return held not reversiprocure witness after due diligence not reversible error unless probability of securing him and clusion as to fact proved by other testimony

(1169(9) (Tex.Cr.App.) Admission of conimportance of testimony indicate abuse of dis- not reversible error.--Windham v. State, 51. cretion.-Gurski v. State, 353. Cm1153(3) (Ark.) Discretion of trial court dence corroborating confession not error, but,

C1169(12) (Tex.Cr.App.) Admission of eviin permitting testimony by state after defend- it error, was cured by withdrawal.—Todd v. ant rested, not controlled unless abuse shown.- State. 695. Smith v. State, JJJ.

to Comes 1156(2) (Mo.) Appellate court cannot set

Od 1170(1) (Tex. Cr. App.) Refusal aside verdict based upon conflicting evidence: quire sheriff to state upon whose information a trial court may do so.--State v. Whitinan, 937. search warrant was secured held pot reversible Cool 156(3), (Ark.) New trial for newly dis: error.--Ilarris v. State. 54. covered evidence rests in court's discretion.-11701/2(1) (Tex.Cr.App.) Leading questions Pendergrass v. State, 914.

do not require reversal in absence of prejudice. Em 1156(4) (Ark.) Denial of new trial on affi--Bowlin v. State, 396. davits denied by juror whose conduct was im-11701/2(5) (Ky.) Cross-examination of acpeached not reversed.-Pendergrass v. State, cused as to immaterial matter held harmless.


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For cases in Dec.Dig. & Am.Dig. Keg-No.Series & Indexes see samo topic and KEY-NUMBER

1171(1) (Mo.) Argument of assistant Submission to suggested treatment is not prosecutor held improper but not prejudicial.- condition precedent to recovery of substantial State v. Delcour, 606.

damages for personal injury.--Id. Prosecutor's argument that jury represented Injured person is not required to undergo deceased not reversible error.--Id.

serious operation for benefit of wrongdoer:-Id. 1171() (Tex.Cr.App.) Argument that ac- Porno 62(4) (Mo.App.) Party breaching advercused's father was able to hire high-priced tising, contract could not contend that plaintiff lawyers for him held error, but not prejudicial. should have minimized damages by selling space -Todd v. State, 695.

to others.-Barron G. Collier, Inc., v. Domino To cause reversal, improper argument must | Macaroni Mfg. Co., 981. be material, and calculated to injure accused. Defendant could not require plaintiff to sell -Id.

advertising space at less than regular prices em 1173(2) (Ky.) Failure to define conspiracy to minimize damages for breach of advertising in instruction held not prejudicial.-Slaven v.

Commonwealth, 214.
Om 1173(2) (Ky.) Facts supported by undenied IV. LIQUIDATED DAMAGES AND PEN-
competent'testimony need not be submitted.-

Cornett v. Commonwealth, 540.

Om78(6) (Tex.Civ.App.) Sums deposited to

guarantee performance held intended as liqui(R) Determination and Disposition

dated damages rather than penalty.-Jones y. Cause.

Mays, 129.
cm 1182 (Tex. Cr. App.) Affirmance ordered
when indictment regular and charge submitted

law, statement of facts and bills of exception 94 (Mo.App.) Awards of exemplary dam-
being filed too late to be considered.-Keck v. ages are subject to revision.-Hunter v. Kansas
State, 1074.

City Rys. Co., 998.
Samas l 1 86(1), (Tex.Cr.App.), Cases reversed for Punitive damages intended as exemplary, and
argument of counsel only in extreme cases.- amount should be proportionate to actual dam-
Bowlin v. State, 396.

1187 (Tex.Cr. App.) Appellate court cannot
order prosecution dismissed where indictment is

good on face.-Humphries v. State, 374.

(C) Breach of Contract. XVII. PUNISHMENT AND PREVENTION OF 120(4) (Mo.App.) Measure of damages for CRIME.

breach of contract to advertise in street cars Om 1216(1) (Ky.) Term does not begin un

stated.-Barron G. Collier, Inc., v. Domino til final judgment and not pending motion for Macaroni Mfg. Co., 981. new trial.--Commonwealth v. Gresham, 1038.

VII, INADEQUATE AND EXCESSIVE 1216(6) (Tex.Cr. App.) Term of imprison

ment begins on affirmance and issuance of man-
date by appellate court on surrender of accused.

128 (Ky.) Unless grossly so, mere exces-Ex parte Underwood, 551.

siveness will not authorize court to set verdict

aside.-Green River Light & Water Co. v. CUSTOMS AND USAGES.

Beeler, 201.

mm 130(1) (Ky.) $5,000 held not excessive for w 10 (Ky.) Strictly construed, and not allow- injuries from burns in boiler explosion.-Green ed to operate beyond class of persons or con- River Light & Water Co. v. Beeler, 201. tracts in regard to which they prevail.--Early 131(5) (Ark.) $2,000 for miscarriage and & Daniel Co. v. Carr, 221.

otber injuries heid not excessive.-Chicago, R. all (Ky.) When telephone contract not con I. & P. Ry, Co. v. Comer, 268. firmed by one party custom held not to author-132(6) (Ky.) $10,000 for crippling injuries ize recovery.-Early & Daniel Co. v. Carr, 221. to boy's legs held not excessive.-H. T. Whitson CUSTOMS DUTIES.

Lumber Co. v. Upchurch. 243,

Om 132(8) (Mo.App.) $6,000 not excessive for IV, ENTRY AND APPRAISAL OF GOODS, injuries to clavicle and arm.-Laemore v. LehBONDS, AND WAREHOUSES.

rack. 639. m75 (Mo.App.) Actual value, and not cost Cm132(14) (Tex.Civ.App.) $12.500 for loss price, of imports, governs amount of tariff to be of eye not excessive.-Davis v. Christmas, 126. assessed.-Oppenheimer Bros. v. J. L. Price 132(15) (Mo.) $1,000 for loss of two finBrokerage Co., 310.

gers held inadequate in view of expenses in

curred.-Kelly v. Columbia Box Co.589. DAMAGES.

Caw 133 (Ark.) $100 held to compensate hus1. NATURE AND GROUNDS IN GENERAL. band for wife's injury.-Chicago, R. I. & P. Ry.

Co. v. Comer, 268.
Oma 5 (Ky.), "General damages" and “special
damages" defined.-Moss Jellico Coal Co. v. VIII, PLEADING, EVIDENCE, AND
American Ry. Express Co., 508.


(A) Pleading.

CwI43 (Ky.) Petition held not demurrable, as (A) Direct or Remote, Contingent, or Pro- showing injuries due to fright alone.--Union

spective Consequences or Losses. Light, Heat & Power Co. v. O'Connell, 237.
w 40(1) (Mo.App.) Lost profits recoverable Camo 144 (Ky.) Loss of time is special damage,
where certain and definite.-Barron G. Collier, and must be pleaded.-Union Light, Heat &
Inc., v. Domino Macaroni Mfg. Co., 981.

Power Co. v. O'Connell. 237.
Cm 40(2) (Mo.App.) Loss of profits for

(B) Evidence.
breach of contract recoverable if they would
have been made had contract been performed. 184 (Ky.) Evidence held not to show fail-

Barron G. Collier, Inc., v. Domino Xacaroni | ure to minimize damages to household goods.Mfg. Co., 981.

Louisville & N. R. Co. v. Wood, 871.

w 185(1) (Ark.) Evidence held sufficient to (B) Aggravation. Mitigation, and Reduce support judgment for plaintiff in action for pertion of Loss.

sonal injury.--Chicago, R. I. & P. Ry. Co. v. Pa 62(2) (Ky.) Injured person required to comer. 268. exercise only ordinary care in selecting physi. Em 187 (Ky.) Plaintiff not entitled to recover cian.-H. T. Whitson Lumber Co. v. Upchurch, for permanent impairment of earning power, 243.

I when injuries not shown to be permanent.--





Union Light, Heat & Power Co. v. O'Connell, | ter, despite inconsistent provision; “either.” 237.

-Id. em 188(1) (Ky.) Evidence repairs and

IV. PLEADING AND EVIDENCE. parts were needed is sufficient to show at least nominal damage.-Robson v. Zumstein Taxicab Omn 194(1) (Mo.) Due acknowledgment and Co., 872.

certification only prima facie evidence of deEvidence as to cost of repairs without proof livery.-Harrison v. Edmonston, 586. of reasonableness or difference in value is in www 194 (3) (Tex.Civ.App.) Presumption that sufficient to sustain a verdict.-Id.

deed was delivered at its date held to warrant

finding that deed was delivered on date of its (C) Proceedings for Assessment.

acknowledgment.-Brown v. Rodgers, 750. 210(!) (Ky.) Instruction predicated

Presumed that deed was delivered at time of finding that injuries resulted from fright alone its date.-Id. held not authorized and properly refused.-w208 (2) (Mo.) Delivery held not made.Union Light, Heat & Power Co. v. O'Connell, Harrison's. Edmonston, 586. 237. Cm 210(2) (Ky.) Injury not pleaded provable

DEPOSITARIES. to show violence of explosion and resultant injury, but jury should have been instructed on? (Tex.Civ.App.) Recital in bond that bank not to allow damages therefor.- Union Light, chosen depository for "scholastic year” held not Heat & Power Co. v. O'Connell, 237.

part of conditional bond limiting term of_ap214 (Ky.) Instruction mitigation of

pointment.-American Surety Co. of New York damages for refusal to undergo operation held v. Tarbutton, 435. favorable to defendant.-H. T. Whitson Lum

Stipulation in bond, providing for interest on ber Co. v. Upchurch, 243.

average daily balances on school district funds,

held not to render bond more burdensome than DEAD BODIES.

statute contemplated.-Id.

What must and must not be read in statutory Om7 (Mo.) Mother must, as principal, partici-bond.-Id. pate in secret burial of child before others can That statutory bond executed by bank acting be convicted as accessories.-State v. Baker, as treasurer of school district funds was not in 956.

exact words of statute held not to invalidate Statute defining, offense of secretly burying it.--Id. child to conceal birth does not require mother Cw13 (Tex.Civ.App.) Undertaking of surety on to herald event of birth.-Id.

bond executed by bank as depository of school Acts of parents in concealing, birth of child district funds held to continue until bank's sucto their daughter by secret burial not imputa- cessor qualified and selected.-American Surety ble to daughter, in absence of acquiescence. Co. of New York v. Tarbutton, 435. -Id.

Surety on bank's bond held not relieved from When knowledge from history of act of buri- paying interest after bank closed its doors.-Id. al of her child to conceal birth held not basis 14 (Tex.civ.App.) What evidence held suffor criminal charge against mother.-Id.

ficient to show breach of statutory bond exeDEATH.

cuted by bank as treasurer of school district

funds.-American Surety Co. of New York v. II. ACTIONS FOR CAUSING DEATH. Tarbutton, 435.

(D) Pleading and Evidence. Om75 (Ky.) Evidence of malicious intent to

DEPOSITIONS. kill held sufficient.-Jackson v. Dixon, 190. Ea84 (Ky.) Permitting plaintiff to retake dep

osition held not abuse of discretion.-Duncan's (E) Damages, Forfeiture, or Fine. Ex'rs v. Porch, 526.

99(1) (Ky.) $2,000 for death of negro 70
years old held not excessive.-Payne y. Ray DESCENT AND DISTRIBUTION.
mond's Adm'r, 224.

See Executors and Administrators; Wills.


AND DISTRIBUTEES. 1. REQUISITES AND VALIDITY. (A) Nature and Establishment of Rights

in General. (D) Delivery.

90(1) (Ky.) Heirs of purchaser who had em 56(1) (Tex.Civ.App.) Actual manual title conveyed to another to defraud creditor delivery not essential; "delivery."-Brown v.

cannot have conveyance canceled.-Hardin v. Rodgers, 750.

Johnson. 544. Em 56(2) (Mo.) Delivery, matter of intention. Cm90(2) (Tex.civ.App.) Heir held not guilty -Harrison v. Edmonston, 586.

of laches in asserting claim.--Shear Co. v. mm 56(3) (Mo.) Parting with all control essen. Stuth, 158. tial for delivery.-Harrison v. Edmonston, 586. Cm90(5) (Tex.civ.App.) Laches of heir in as

serting right held question of fact for trial III. CONSTRUCTION AND OPERATION.

judge.-Shear Co. v. Stuth, 158. (A) General Rules of Construction, 97 (Tex.Com.App.) Words repugnant to

(B) Advancements. parties' intent rejected as insensible.-Shugart Cal01 (Ky.) After sons' debts forgiven by v. Shugart, 328.

father, sons not obligated to father's estate.

Gray v. Gray, 172. (C) Estates and Interests Created. C 128 (Tex.Com.App.) Rule in Shelley's Case

DISMISSAL AND NONSUIT. inapplicable, where intent, by use of words “heirs," "heirs of the body," etc., was not to See Appeal and Error, Ow781-797. comprehend whole line of succession to life holder.-Shugart v. Shugart, 328.

I. VOLUNTARY. Rule in Shelley's Case held inapplicable; C 26 (Tex.Civ.App.) Dismissal of initial car"heirs," "heirs after her," "heirs of their body." rier sued jointly with another held not error --Id.

when not served and not appearing and not Deed construed as conveying deceased daugh- pleaded into court by the other.-St. Louis, B.


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