The Austin Statesman. (Austin, Tex.), Vol. 32, Ed. 1 Friday, May 22, 1903 Page: 6 of 8
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THE AUSTIN STATESMAN, rKIAI, nAI 22, 1903
bupport
rehei
rep
tbs
jur,
the
thia
+
BIG RESULTS.
+++++++++*++++*
Sitoations Wanted.
Help Wanted—Female.
Help Wanted—Male.
Beal Estate.
I saw defendant in the
■
know
Agents.
Business Chances.
Delive
first district.
▼
Money to Loan.
began screaming.
I d|d not
COURT CRIMINAL APPEALS.
A. C. Bullitt, for appellees.
Financial.
Salesmen.
Delivered May 20, 1903.
Booms and Board.
For Rent.
150.”
S
1
*
J
The American NatT Bank.
Stock owned by home people.
Typewriters.
t
We solieit your bustnesn.
For Sale.
(Deli vet
Hotel Directory.
V
ALCONA HOTEL,
Contractors and Builders.
Rates $2 per day.
ROCKDALE, •
TEXAS.
Moving Vans.
Office Fixtures.
idden resentment or terror as to ren-
sue
de
r It inca]
WETZEL HOUSE
you will fil
slaughter.
KYLE,. . .
. . TEXAS.
Personal
Poultry.
Judge.
Delivered May 20, 1903.
/
(No attorneys named.)
Delvere
Summer Resorts
------------ V
, Box
RESTAURANT A LA CARTE
—
i. H. PATTRONE, Menagen.
=
I
Capital, $200,000
Surplus, 150,000
resulted in a verdict and
the extreme east boun-
arises over the location on the
of the east line of the Cornelius
locations depends upon the
the east line of the Smith
*
!■
. Gafnes,
associate
associate
On. Block From Depot.
TRAVELING MEN'S HOME.
■
nomine,
vs. State,
et a), vs.
that copr
the value
required
ingly_ye
in this re
Appella
the execi
that it c
The bond
proved oi
Knight, si
court exp
stating "I
no note i
date of th
the apprc
dence hea
other thai
cial respo
White.”
of the jud
bo consid
and as to
tween the
No erro
judgment
BURNET
HOUSE,.
D. H. I
Ho war
general.
WANTED—Two traveling salesmen in
each state; permanent position: SCO
and expenses. Central Tobacco Works
Co., Penicks, Va.
I
BROOKS,
Judge.
Corner of 6th and Brazos, Aus-
tin, Texas.
i
WHEN buying uy you mi
statesman.
WHEN buying My you saw It In The
Statesman.
WHEN buying say you naw It In The
statesman.
WHEN buying My you saw It In The
Statesman.
WHEN buying My you baw it In The
Statesman,
WANTED—A iecona hand lathe, 14 to
22 inch .wing, length Immaterial, ad-
drew Machinery, care Statesman.
WHEN buying My you saw it in The
Statesman.
WHEN buying My you saw It In The
Statesman.
Wanted to Buy.
WHEN buying say you naw it in The
Statesman.
WHEN buying say you saw it in The
Statesman.
WHEN buying say you saw it in The
Statesman.
WHEN buying say you saw it in The
Statesman.
_____Lost and Found.
WMEN buyins way you saw it in The
Statesman.
Masterson & Masterson and Brock-
man & Kahn, for appellants.
To Ir
Special to
Laredo,
Brooks ar
under ord
wired yea
morning f
assassinat
They wer
Attorney .
Opinioi
final jud
Appel lan
of the C
amend tl
to the sui
ment wa
citation f
ber 18, a
judgment
amend, w
ed in thl
surety, J
pearance
of the c<
case to tl
in court :
the amen
Gragg vs
The ba
on the gr
required
ground 0
bond did
the offen
mnisdemes
and did n
—the cha
Ration of
Acuity
ground
F. H. Prendergast, for appellant.
Howard Martin, assistant attorney
general, for appellee.
pable of cool reflection, then
Ind defendant guilty of man-
or if you believe from the
business methods. Write today. Reed
Brokerage Co., St Louis, Mo.
ner of the Roberts labor
north of Cornwall's corner.
FOR SALE—15000 vendor’s Hen notes
long time, 6 per cent interest well
secured by first lien on Austin prop-
erty. Address B., care Statesman, tf
I
6
trial by jury
judgment for
position of
league. A
LET US give you estimate on art
stained glass and colored glass of every
description. The Texas Art Glass Co,
Houston, Tex, 119 San Jacinto.
"""2
HOTEL SUTOR
(Formerly Hotel Balcey
STRICTLY I:
EUROPEAN
• PLAN.
WANTED—Salesman to call on doc-
tors only on behalf of the leading firm
in the business. Established trade.
Fvtion permanent. State experience.
A-Mress, P. O. Box 858, Philadelphia.
FOR SALE—A fine young Jersey cow
and caff; extra milker; third calf. Ap-
ply at 207 W. 5th St.
room; don’t
No. 2429.
Crawfol
of Tex
Coke C
ALL GRADES of screens made to
order: satisfaction guaranteed; illus-
No. 2563—Fifth Assignment. Berry K.
Willis, Appellant, vs. The State of
Texas, Appellee; Appeal from Smith
County.
16 varas.
The dif-
FOR SALE—Seven-room, two-story
residence, lot 110x128, corner lot; ser-
vants' house; shed barn; four blocks
west University. one block from car
line; title perfect. 32760. Write Ross
W. Davis, Hereford, Tex.
FOR SALE—A tour horse Otto gas
engine. In thorough repair. Inquire at
3, H. Williamson’s. 814 Colorado St t
BANTAMS-A fine lot to select from,
a- . — All loading varieties. Birds from my
dP.1n. yards, win. Satisfaction guaranteed.
Ionihelt Circular. Hal Carman, Petersburg, 111.
FOR RENT — Large well furnished
south room to gentleman or couple
without children; electric lights, bath
and telephone privil.es; several
boarding places nearby. Apply at 2000
- Whitls ave.
No. 2585—Fifth Assignment. Chas.
Holland, Appellant, vs. The State of
Texas, Appellee; Appeal from Harris
County.
whether the door was closed
•1
B. B. Beard and Felix J. McCord, for
appellant.
Howard Martin, assistant attorney
general, for appellee.
This action was brought by the New
York and Texas Land Company, Ltd.,
against D. B. Jamison and others for
the establishment of the boundaries of
the Noel F. Roberts survey of 302 acres
situated in Brazoria county which be-
longed to the plaintiff except 75 acres
thereof, which it had previously con-
veyed to the said D. B. Jamison. The
field notes of the Noel F. Roberts sur-
vey call to begin at a stake and mound
the northeast corner of the Cornelius
Smith league southeast corner of the
Wm. Roberts league and southwest
corner of the Andrew Roberts labor;
thence south with the back line of the
WANTED—Agents to make 110 a day
rellinK the "Cylone" rotary hand fan.
Greatest seller known. Immense prof-
its. Write for territory and agents
terms. Sample, postpaid. 15 cent.
Address Enterprise Co. 154 Lake Su
Chicago, III.
FOR SALE—Typewriter ribbons, car-
bon paper. Typewriters cleaned and
repaired. Typewriter Agency, log W.
6th St.
THE COMMERCIAL HOTEL
Large, A try Room, Everything Clean,
Cool and Nice. All Commercial Tray
elerAeRAfE,erEamoroial.
GOOD AGENT wanted in every city
th handle the "Electrosine Pencil,’* ths
greatest ink eradicator known; 200 to
590 per cent profit to agents* sample,
33c. J. L. Russell, general agent,
Houston, Tex.
FRANCIS FISCHER
General Contractor
Cut Stone and Briok Work n
Specialty- Rough or out limo-
stone furnished. Austin, Texas.
No, 2461
White,
Texas,
sidio C
WANTED—A good cook; liberal
wages. Apply Mrs. Percy V. Penny-
backer. 402 W. 24th St, 22
' WANTED—Experienced wrappers,
salesmen and delivery men for our spe-
cial sale. F. E. Mlstrot.
it in The 1— - - -
oil stored:
SALARIED PEOPLE—Ladies or gen-
tlemen permanently employed needing
money supplied quickly and confidenti-
ally upon your own name without se-
curity or endorsement; payments can
be made to suit you. National Credit
Co., 911 New York Life Bldg.
MISSOURI Land and Mortgage Co
St. Louis. Money loaned on real es-
tate at lowest rates of interest. Prompt
straight loans on good titles only. Ven-
dor’s lien notes bought and extended
Easy terms.
two old boilers, lot of second hand
carpet, Jo best bidder for cash at my
office, 11 a. m. Tuesday, May 26, 1903.
C. E. Gilbert, Supt. Public Biuldings
and Grounds.
12e
£”
from |
■
SODA FOUNTAINS, .how cases, car-
bonatorB, bank fixtures, etc., made by
C. Mailander A Son, Waco, Tex. Write
for catalogue. Prices low.
Opinion.—Appellant was convicted of
burglary, and his punishment assessed
at confinement in the penitentiary for
a term of three years.
Bill No. 1 complains ha the court
erred in permitting the state to prove
by prosecutor that the room burglar-
ized was in a hotel. Appellant’s con-
tention being that inasmuch as the in-
dictment alleged the house to be a pri-
vate residence, and the proof shows
that It was a room in a hotel. there is
a fatal variance between the allegation
and the proof in this respect. The bill
of exceptions and the evidence shows
that prosecutor was renting the room,
and was residing in the same as a
private residence at the time it was
burglarized. Under the circumstances
the room was a private residence with-
in. contemplation of the law. Ulman vs.
State., 1 Tex. Cr. App.. 220; see also
art 643c, Penal Code, acts 26th legis-
lature. p. 319.
Appellant complains of the court's
ever, it
jurors
whisky
the jur]
verdict,
matter
must nr
should i
By bil
pear "th
den, wh
of Hai
that h
w arned
say to 1
against
Munden,
wife wo
den repl:
thereupc
lating fi
him. bet
ments w
court ov
milted t
fendant"
and 1 kl
home th
wife had
ton’s, an
gun and
kill Rob
the gall
were sor
I was ai
else; bu
in the h
the wine
side of
other, an
dow.' ”
was adm
thoritles
cr. App.,
W., 1059
Ct. Rep-
No err
judgmen
FOR BALE—A list of 4000 attorneys in
Texan full addrm. for $5.00., H.P.
N. Gammel Austin, Tex. tf
requested to insert the description, ex-
ing. claim, against ald estate t pre-1 fortarndcacknowledge.tpsnpapersknd
sent the same at the omce of the up- Exwarea th to vHenka mil 8 1895 and
deraigned, within the time showed by akhowiedgea P PerroAPa^.“before
"ri A. A ,.4, . the Woodbury tract was inserted. This
Austinoatona BoNt2mscuadd Aul wa" aone because at that date he did
AUStn„patona- Bank Building, Aus- not have the description .Two or three
e,,, 1, . „ days later he procured the description,
-Dated this, 6th day of May, A. D. inserted it and without re-acknowledg-
IAAA v cur X ment or notice to the notary, forward-
A-,-.0+ HME u « TON, ed it to Henke & Pillot. The latter
Administrator of James S. Holt, de- with knowledge that the description
• , had been inserted subsequent to ac-
-x,. - .------------- knowledgment, accepted the instru-
A., in4H%48 pnkas eni. । , ment and placed it of record on April
Our southern friends are reminded I 9 1875
thatsttasonsthin«to.snore.the nr: ‘Prior to this transaction between
teenthsamendmeentahutas Isa different Liken and Henke & Pilot the pper
ana muchmore Aimeutt.thing to re- man seirs had sued Liken for the
peal it. Boston Transcript. Woodbury tract of land and the suit
------— --------------- — was then pending and undisposed of in
MMEpuevumeuthe district court of Liberty county,
Texas.
WHEN buying say you saw it in The
Statesman.
time the. sanetion of many years of
EomGroetthe legal principle, which
muI k- the production f evidence
munbe.espeted. Even if parol tes-
much Yushou 1a be heard in is case
much.uncertainty woui b developed
rttheslocation ot Eh une in contro-
verx«rowng out of different surveys
sommencins at assumed corners. The
. nxes the line •« only
about.hair. as far east from the 1e
mecoring so course ana distance from
the. Wm. Roberts southeast corner as
that found by the Jury; while if parol
evidence be rejected and the Une run
according to the field notes there are
no conflicts in the calls and no dir-
nculty. in,their application to the
ground. There are others in the record
arsing out of rulings of the court in
the admission of testimony and in the
charge to the jury, but II is not neces-
sary to notice them since parol evi-
dence was not admissible at all to
change the Smith east boundary from
the place where course and distance
put it. The Judgment of the court be-
low will be reversed and Judgment will
be here rendered establishing the east
line of the Smith league according to
course and distance from the Wm.
Roberts southeast corner ascertained
by running the calls of the field notes
of that survey; and construing the
Noel F. Roberts upon the Cornelius
Smith according to course and dis-
tance of the said Noel F. Roberta sur-
vey and disregarding its call for the
Cornwall, and construing the Cornwall
upon the E. Waller league according
to the calls of the Cornwall survey
for course and distance disregarding
its call for the Andrew Roberts south-
Opinion
of vlolati
his punis
325 and '
the couni
The cot
quash the
th? essen
of selling
cal optioi
court err
erance. )
ter of rig
indicted t
must be
is too lat
nounced
had been
the in fori
not guilt)
sever col
time two
would thl
right of i
to each i
permitted
merely il
sever con
has been
not guilt)
Appellai
troduction
orders foi
declaring
that then
beginning
out in. th
ginning ci
Appellant
would be
the begin
informatic
for in the
there was
the begin
twenty-fiv
de minim
applied h
facts is n
noton an
ception.
there ma]
finding a
veyed on
a known ■
this recor
been to r
variance.
Appellai
refused t<
structions
the absen
able to r
being no
judgment
FOR RENT—Reasonable, one store
room, in good condition, in the prin-
cipal business block of Lavaca St. In-
quire at 1604 Lavaca St. 26
FOR RENT—A new two-story eight-
room house, all modern conveniences;
long time guaranteed to right party.
Call at 1209 Rio Grande St.
WHEN buying say you saw it in The
Statesman.
FOR SALE—Hamiltonian colt, 2 years
3 months old, broke, perfectly gentle;
a Jersey cow, buggy and cart; must
be sold at onces E. G. Kamp, Hyde
Park.
No. 3250.—D. B. Jamison, et al.. Ap-
pellants, vs. New York and Texas
Land Company, Ltd., et al.. Appel-
lees; Appeal from Brazoria.
GET the largest moving cars; honest
and experienced men; fine wagonettes
for outing parties from Jeff Banton;
prices low; residence phone, 543;
Thos. Goggan and Bros. phone, 295.
WANTED—By a young man, a place
in a private family, where he can earn
his board while attending school this
summer. Address 100, Statesman of-
fice.
FOR SALE—Cheap, meat market;
old established place, with complete
fixtures. Apply to Trautwein A Nolen
or phone No. 204, both phones.
FOR SALE—A four-gallon Jersey
cow, a surrey and a buggy. T. G. Har-
ris, 813 W. 22d.
WHEN buying say you saw It in The
Statesman.
H
Special to
Hempst
Freeman,
his father
fixed at 31
Smith league 1710.56 varas to a stake
in- and mound in the prairie. Thence
inlot, east 1000 varas to a post on the west
line of the Cornwall tract; thence rorth
with said line 1710.56 varas to the cor-
Smith league and the west line of the
H. H. Cornwall. D. B. Jamison and
other heim of James Jamison own the
land to the east end of the Smith
league and claim that its east line ex-
tends to a corner marked for many
years by a liveoak post in the north
line of the Asa Mitchell one-half league
155 varas west of the E. Waller west
line. Cannon and Erskine and others,
vendees and subvendees of Hennell
Stevens, whose heirs are vouched in as
warrantorfl, claim the Cornwall, which
is a survey of 611 acres, under a patent
whose field notes call to begin at a
stake 16 varas south of the Southeast
corner of the Roberts labor; thence
south 1858 varas to the north line of
the E. Wallas league; thence east 1858
varas to a stake on the north line of
the E. Waller league; thence north
1858 varas to a stake; thence West
1858 varas to the place of beginning.
According to the calls of the field
frotes of the Noel F. Roberts, that sur-
vey occupies all the space between the
Smith and the Cornwall to its extent
south, but Branch T. Masterson inter-
vened in the suit as the vendee of the
defendant Barrow of two surveys lo-
cated upon an alleged vacancy be-
tween the Noel F. Roberts and H. H.
Cornwall and south of the Roberts
and north of the Cornwall by virtue of
certificates Issued to Martha C. Tobin
and J. M. Swisher for 640 acres each.
The position on the ground of the Noel
F. Roberts and the amount of land ap-
propriated by the Tobin and Swisher
turn the knob to open the door. It was
already open." We do not think this
evidence is circumstantial as to the
breaking, and hence 13 follows that the
court did not err in refusing to charge
on circumstantial evidence.
No error appearing in the record, the
judgment is affirmed.
FOR RENT—My cottage, corner 17th
and Guadalupe BL; will give posses-
slon at once. Apply at residence, or
phone 186 or 858, old. R. G. Crosby.
I am v2
"Tho statesman, so oentaa month.
1ocnt.. Supreme Court.
ebMU] 4uSnpaRe
Seeds, Plants, Flowers, Etcjustice; A. wullaz» '
WANT ADS:
-
charge because it authorized the jury
to assess his punishment on conviction
by c online nent in the state peniten-
tiary for not less than two nor more
than twelve years, when the statute
provides the punishment for burglary
of a private residence is not less than
five year a .As stated, if a burglary is
committed on a private residence in
the day time the fact of it being a
private, residenee does not change the •
punishment, but is, as stated by the
court. If the.burglary is committed on
a private residence at night, or if this
burglary had been committed at night
(though theievidence shows the con-
trary) then the court would have been
in error in stating the punishment as
he did. See Williams vs. State, 2 Tex.
Ct. Rep., 359.5
Appellain also insists that the court
erred in failing to charge the jury the
law of circumstantial evidence. The
evidence establishing the burglary is
not circumstantial. Schroeder testified
when he left the room, he closed the
door but did not lock it, only pulled
it shut so as to latch it. On cross-
examination be testified: "I did not
lock the door as I went out of the
room, only pulled it shut. I can not
say whether it was opened by some one
other than defendant before defendant
went into the room. I would not say
that the door could not have been open-
ed by some means other than the turne
ing of the knob by defendant, but It
must have been turned by some one.
It was probably two or three minutes
from the time I went down stairs until
my wife went upstairs to our room
and I heard her scream." The wife of
prosecutor testified "that on the morn-
ing of December, 28, between 7 and 8
o’clock, my husband came downstairs
into the dining room, where I was and
asked me to go upstairs to my room
and get some change in money which
he had left. When I reached our room
when defendant entered the room, as
my husband came out of the room after
I did. It was only two or three minutes
from the time my husband came down-
stairs until I went up to our room and
found defendant in there." Defendant
testified: "I .went into the hall to
look for a closet. Went to one end and
not finding it, started to the other end
of the hall, when I came to a door
which was partially open, and think-
ing the closet was in there I went in,
and I had hardly gotten Inside of the
door when some lady came into the
room, and as soon as she saw me she
IA)8T—interchangeable mileage ere-
notiry
east corner; and in favor of the said
Masterson for the land described in
his petition. The judgment of the
court below is also reversed as to the
recovery against the heirs of Hennell
Stevens who have appealed from the
judgment against them upon the war-
ranty of title to land by Hennell
Stevens. No appeal having been per-
fected by the Jamisons and others
from the judgment as to costs and
Masterson not complaining in that re-
spect, the judgment as to costs will
remain undisturbed.
Reversed and rendered.
GARRETT,
Chief Justice.
Delivered May 14, 1903.
Filed May 15, 1903.
FOR SALE—Old papers, 250 per hun.
dre. Apply at Statesman office.
WHIBRY, opium, morphine or ary
other drug habit on earth cured In
forty-eight hours, without pain. No
more craving. System toned up *
few days and well again.
rious treatment) All work guaranteed.
No cure, no pay. Banltarium and home
2.":
M. D„ .apt; C. M. F.Ureth, mm.
DRINK; wela ana stnr W.n,
Hake-x8mnzeiig""omlyki
BOMB FOR DADIRB durin, confine-
——
Llano, Texas.
E. MARSHALL, Proprietor.
Table is supplied with the best the
market affords. Favorite resort for
traveling men.
Rates >2.00 Per Day.
Burnet,.............Texas
sorneune Ae
thj hL ‘ north line 2075 varas west of
be5,hyeoak.post found by the jury to
we he. Bputheast corner. Reluctant a*
L 5 are to disturb the boundaries that
On the 6th day of September, 1895,
Liken having been advised by his at-
torneys that the better title was in the
I Operman heirs, concluded to termi-
nate the litigation by a purchase of
their title. In pursuance of this pur-
pose the sum of 31400 was agreed on as
the price to be paid. In view, however,
of the difficulty and delay involved in
procuring a deed from the minors it
was finally arranged that Liken on
payment of the agreed sum should
take judgment for the land. Liken
did not have the necessary funds, so he
induced Stacy to take the bargain off
his hands. This Stacy agreed to do.
and for convenience it was arranged
that Liken should take judgment in his
own name, but in fact for the use of
Stacy and thereafter deed the land to
Stacy. The money was paid by Stacy
and the judgment taken as agreed on
the date last above named, but the land
was never deeded to Stacy, as Liken
soon thereafter fell ill and died. In
inducing Stacy to buy the Opperman
title Liken assured him that the land
was unincumbered and he parted with
his money without actual notice of the
Henke A Pillot deed of trust.
In the course of the administration
of the Liken estate the land was in-
ventoried as the property of the estate
and Henke &-Pillot without notice of
the interest of Stacy, applied to the
probate court to foreclose their deed
of trust and to sell the land, including
the "Woodbury tract," for its satisfac-
tion. This was done and Henke &
Pillot became purchasers at the sale
having bld the amount of their claim,
principal and interest and 10 per cent
attorney’s fees. Thereupon the ad-
ministrator made them a deed, the
debt being receipted in full. Later the
firm paid to theirv attorney for his
services in the matter a sum equal to
10 per cent of their claim against the
estate.
On the day the sale was made Stacy
brought this suit against Henke & Pil-
lot to recover the land. It was in the
form of trespass to try title and to re-
move cloud.
A trial before the court without a
jury resulted in a judgment for Henke
& Pillot, from which Stacy has ap-
pealed and assigns errors which pre-
sent the points hereinafter discussed.
This is the second appeal, the fornmr
being by the present appellees. •
the former appeal there was no proof
that the Opperman title was in fact
superior to the Liken title. Upon that
state of the record this court held that
the Liken title would be treated as a
paramount and an the Henke A Pillot
trust deed was of record when .Stacy
acquired his interest the cause should
be reversed. 61 8. W. Rep., 609.
On this second appeal it affirmative-
ly appears that the Opperman title is
superior. It is so found by the court
and an the finding in not assailed it in
not necessary to set out the title at
length.
A serious question on the formerap,
peal was the validity of the record of
the deed of trust but in our view of
the record as it now stands that ques-
tion is no longer material.
The .transaction between Stacy and
Liken has much the semblance a
mortgage, but as it has been treated
by the parties upon both appeal® as a
purchase of the land we have no rea-
son to doubt that the transaction was
of an absolute nature. This being
true a reversal of the judgment I® in-
evitable. Liken gave Henke & Pillot
a mortgage on land which he did not
own and which had even then been
drawn into litigation by the Opper-
man heirs holding the true title; Had
Liken subsequently perfected his title
It would doubtless have inured to the
benefit of the holders of the mortgage.
But this he did not do. On the con-
trary he suffered Stacy to acquire the
Opperman title himself, taking it in
trust for Stacy. He held the legal tit]?
In trust for Stacy at the date of his
death, whereupon it descended to his
estate. Henke A Pilllot in foreclosing
upon the land could purchase no
greater interest than the estate had.
except as innocent purchasers for
value without notice, and It has
already been shown that thex. were not
No. 2560—Fifth Assignment. John
Brown, Appellant, vs. The State of
Texas, Appellee; Appeal from Har-
rison County.
POCKET TYPEWRITERS—Coffman’s
new (patented); price 35; can do all
and more than ordinary high priced
machines. Agent’s harvest. W. T.
Ironside, manufacturers* agent 817-319
Elm St., Dallas, Tex.
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evidence that from any condition or
circumstance which was capable of
creating in the mind of a person of
ordinary temper such a degree of an-
ger. rage, sudden resentment or terror
as to render it incapable of cool re-
flection, and if you further believe that
such condition or circumstance, what-
ever it may have been, did arouse in
the mind of defendant such a degree
of anger, rage, sudden resentment or
terror aa to render it incapable of cool
reflection, and that while in such state
of mind he shot and killed Robert
Washington at time and place in in-
dictment alleged then you will find him
guilty of manslaughter.
"By the term ‘meet’ as usual in the
foregoing charge signifies that the par-
ties were brought into such proximity
as would enable defendant to act In the
premises whether armed or unarmed."
We think when these paragraphs are
considered together there is no such
error apparent as would be calculated
to injure the rights of appellant.]
Appellant also objects to the twelfth
paragraph, quoted above, on the ground
that the court authorized the jury to
convict appellant of manslaughter if he
was laboring under passion aroused
from adequate cause at the time of the
killing. This we understand to be the
law. Appellant, however, insists that
defendant would not be guilty at all.
This clearly is not correct. Vrlous
other objections are urged to the
twelfth paragraph of the charge, but
in our opinion there is no error in the
charge. An inspection of the evidence
shows that the charge is as favorable
to appellant as, he could expect.
Appellant inists that a new trial
should be granted because the jury
dranky whisky during their deliber-
ations, insisting that they become
drunk. However, the record does not
-------------------- The.State.otndexaBa Cqntyrof ravis s.Lken of LIberty county being in.
EaTEMubuyine “y yod “w “ tn estate ok Jamms . Prepared0 the' 'Jr "tmz * / tor:
•!! stor-d: will pay iarge dividend, m county a al“a •Woodbury tract." •ituated In Liberty
aoon. Write for proapeclua. T. 3. regular term nr Ana seme.!in“county, should be ineluded in the deed
n Agene, Voteker idmmutX or estnteat o trust butithe attorney wh prepar
building. Albany, N. T. James S. Holt late of Travis County, ^rWt'o^K^n the letter which de-
DOUBLE TOUR Monny-Fonow quregteaecharabzscoeirzoacomerronapalsothpanlea"Ghe paper to Uken he was
Advice on grain, cotton and stocks, land make settlement, and those hav-
Dally tetter and book free; 840 will
margin 20 shares stock or 2000 grain.
Each cent advance makes a profit of
320. Accounts handled on conservative
--.a. -e,
Opinion.—Appellant was convicted of
murder in the second degree, and his
punishment assessed at confinement in
the penitentiary for a term of thirteen
years.
In his motion for new trial appellant
complains of the following portion of
the court's charge: "Insulting words
or conduct of the person killed towards
the wife of the party guilty of the
homicide, provided the killing take
place immediately upon the happening
of the insulting conduct.” Appellant
insists this charge was error, "because
there was no question as to insulting
words and conduct towards defendant,
as the same would be understood by
the jury, and because the law permits
the husband to kill the adulterer az
soon as they meet after the husband is
Informed of the insulting words. Para-
graphs 11 and 12 of the court's charge
must be considered together, and they
are as follows:
"XI. By the expression ‘adequate
cause’ is meant such as would com-
monly produce a degree of anger, rage,
sudden resentment or terror in a per-
son of ordinary temper sufficient to
render it incapable of cool reflection.
The following are deemed adequate
causes:
First—Adultery of the person killed
with the wife of the person guilty of
the homicide, provided the killing oc-
curred as soon as the facts of an illicit
connection is discovered.
Second—Insulting words or conduct
of the person killed towards the wife
of the party guilty of the homicide,
provided the killing takes place im-
mediately upon the happening of the
insulting conduct.
Third—Any condition or circum-
stance which is capable of creating and
which does create in the mind of the
person guilty of the homicide such a
degree of anger, rage, sudden resent-
ment or terror as to render it incapable
of cool reflection, is adequate cause.
"XII. Now if you believe from the
evidence in this case that defendant
had heard of the adultery of Robert
Washington with his wife, and that as
soon as the fact of the illicit connec-
tion was discovered he shot and killed
the said Robert Washington. In said
county and state about August 1, 1900,
and you further find that at the time
of the killing there was aroused in the
mind of defendant such a degree of
anger rage, sudden resentment or ter-
ror which rendered it incapable of cool
reflection, then you will find defendant
guilty of manslaughter. Or if you find
from the evidence that defendant saw
deceased use insulting conduct towards
his wife and that he immediately upon
the happening of the insulting conduct
shot with a gun and killed deceased at
time and place mentioned in the indict-
ment; or if he had been informed of
insulting conduct of deceased towards
his, defendant's wife, and that as soon
thereafter as defendant met deceased
he shot with a gun and killed said de-
ceased at time and place in indictment
charged; and if you further find that
at the time of the killing his mind was
aroused to such a degree of anger, rage,
•.............•..........WW:|SWeW DECISIONS
....GILL HOTEL
dary as claimed by the Jamisons,
which flhut the intervenor out from
the recovery of any land between the
Noel F. Roberts and the Cornwall. He
recovered a small tract covered by the
Swisher survey south of the Noel F.
Roberta, but the judgment made no
disposition of the land included in the
Tobin survey lying north of the Corn-
wall. The Cornelius Smith league
a grant made to him as a colonist in
1824 with the following field notes:
"• • • from the southeast corner of
the Willfam Roberts league the sur-
veyor commenced the survey of said
league, and thence measured 3073
varas to the south to the north line of
the Asa Mitchell league; thence west
7862 varas, crossing Oyster creek;
thence south 50 varas to the north-
east corner of Samuel Carter’s league;
thence west 292 varas to the south-
east corner of Jas. B. Bailey’s league;
thence north following the eastern
boundary of said Bailey’s league to the
northeast comer of said Bailey's
league; thence east following the south
line of 'William Roberts league 8154
varan to the beginning place of the
first line." The field nots of the
William Roberts league are as follows:
"Beginning on the east bank of the
Brazos at an elm marked 1 E. R.;
thence east 14,224 varas to corner a
post and mound: thence south 1961
varas to a stake; thence west 1095
varas to a stake, the northeast corner
of Stephen F. Austin tract; thence
west 11,625 varas to a stake at Smith
Bailey’s upper corner; thence up the
river with the meanders thereof to the
place of beginning." The Smith Bailey
and the Stephen F. Austin called for
in these field notes were abandoned
and the land adjoining the Roberts on
the south was appropriated by the
Cornelius Smith and James B. Bailey
surveys. The north lines of these two
surveys added give 12,720 varas, the
exact length of the William Roberts
line. The Andrew Roberts labor was
surveyed April 10, 1838. It was for
1000 varas square and called to begin
at the northeast corner of the C. Smith
league and to run east, north, west and
south. It lies east of. and adjoins the
William Roberts league. The H. II.
Cornwall survey was made September
13, 1860, and the Noel F. Roberts, Sep-
tember 26, 1872. The Swisher and To-
bin are junior surveys and the right of
Masterson to recover depends upon
the location of the east boundary of
the C. Smith league. It is conceded
that the parties have title to the sur-
veys respectively claimed by them and
that the question for determination is
the location of the east boundary line
of the Smith league. We are of th*
opinion that this must be determnd
by running out that survey according
to course and distance, commencing at
the southeast corner of the Wm. Rob-
erts league which is established by
running out that survey according to
course and distance, commencing at
the beginning corner of its field notes
on the Brazos and running east and
south. These field notes develop no
ambiguity and can be applied to the
ground and parol evidence is not ad-
missible to change the lines and cor-
ners of the grants. Thompson VS.
Langdon, 28 S. W., 931; Johnson v.
Archibald, 78 Texas. 96: Ratcliff vs.
Burleson, 25 S. W., 984; 8. C., 26 8. W.,
1003; Converse vs. Langshaw, 81
Texas, 275: Chew vs. Zwelb, 69 8. W.,
210; Anderson v. Stamps, 1® Texas,
Ct. Rep., 86. Run out according to
course and distance the northeast cor-
ner of the Smith league te at the
southeast corner of the William Rob:
erts league, which I® ascertained by
running out that league according to
dew unambiguous and undisputed
Opinion—Appellant was convicted of
manslaughter, and his punishment as-
sessed at confinement in the peniten-
tiary for a term of two years.
The evidence for the state shows that
deceased struck appellant with a rock,
and at the time of doing so was on the
outside of the yard fence of appellant.
Appellant immediately went into the
house after a gun. Deceased picked up
a bucket of water in each hand and
started away, and as appellant came
out of the house with the gun, deceased
ran, and appellant fired two shots at
deceased, shooting him in the back. At
the time of the first shot deceased was
about ninety feet from appellant and
was fleeing. Appellant’s only insist-
ante is that the court erred in failing
to charge on the law of sel-defense.
This Insistence is predicated upon the
testimony of appellant. That portion
of his testimony relating to the diffi-
culty is as follows: "Between 7 and 8
o’clock on the morning of the difficulty
I walked up from the haystack towards
my yard gate a the well, and when I
turned the corner of the stable I saw
deceased, 'Howdy, Ben,’ and he said,
the well with a bucket in each hand.
That was the first I knew of his being
down there that morning. . I said to
deaceased, 'Howdy, Ben,’ and he said,
'Howdy,’ And I asked him, 'How is
your wife this morning?' And he said,
‘She is not doing so well as she has
been doing.' I then said, 'Ben, you
will have to take your calves out of the
field for they are. eating up all of my
peas.’ He then said, ‘I'll be God damn-
ed if I do it. Your hogs have eaten
eight or ten bushels of my corn.’ I
said, ’They have done no such a thing.'
He then said, 'You are a God damn
lie, sir." He then jumped off about ten
or twelve feet and picked up the two
rocks I brought here, and which are
here in this case, and run up to me at
the fence with one of the rocks in
each hand and struck me over the fence
on the left side above my left ear. As
he started to make his lick I threw
my left hand and arm up and by that
kept him from hitting me a very hard
lick. I then started along the inside
of the horse lot fence, and he followed
after me with the two rocks and had
one of them drawn and motioning as
if to strike, and saying, 'Hold up; hold
up. If you move God damn you I’ll kill
you.’ And I kept my head under the
wires of the fence and my arm up so
that he could not hit me. And I went
on into the yard gate and he followed
me Into the yard with the rocks in his
hands, and I walked on into the south
door of the room of my house close
to the well, and being the room my
gun was in, and got my gun and went
back out on the open gallery to the
well. I stepped off the end of the gal-
lery next to the well and stepped up
to about ten feet west of the southwest
corner of the south front room of my
house and just then I saw him stoop
and set his buckets down and jump
off like he was going for more rocks,
and I shot him.- I don't know exactly
how far he had gone after setting his
buckets down before I shot the first
time, but it may have been twenty or
twenty-five steps. I know I hit him
with the first shot and that I did not
hit him with the second shot. I tried
to hit him with the first, but the second
shot was accidental."
All the evidence for the state, as In-
dicated above, shows deceased was
shot in the back; and the above de-
tailed testimony of appellant does not
controvert this, but corroborates the
testimony of the state that deceased
was some distance away at the time
of the shooting. In the light of this
record, and in view of the testimony of
appellant, we do not think the court
erred in failing to charge on the law of
self-defense.
No error appearing in the record, the
judgment is affirmed.
BROOKS,
e -
purchasers for value az that term has
been construed in this state.
Appellees contend that the judgment
of the probate court ordering the land
sold for the payment of debts bound
Stacy as one Interested in the estate.
This proposition would doubtless be
sound if the interest of Stacy amount-
ed to no more than an interest in the
estate. But his interest was not in the
form of “a claim against the estate. He
owned the equitable title to the land.
It was such a title as would sustain an
action of trespass to try title. The
estate owned no beneficial interest and
therefore had nothing to sell. This
being true, Stacy was no more bound
by the order of the probate court de-
creeing the foreclosure and sale than
any other owner of land erroneously
sold as the property of another's es-
tate.
In this view of the case the record
of th? trust deed has no bearing upon
the rights of Stac y. If he had actually
known of its existence he might still
have bought the Opperman title as he
did unaffected by the lien.
For the reasons given the judgment
of the trial court is reversed and Judg-
ment here rendered in favor of appel-
lant Stacy.
Reversed and rendered.
GILL,
Associate Justice.
. Delivered May 14, 1903.
Filed May 14, 1903.
1
•v
ROBERT LUDWIG, THE TAILOR. Perpotetof Criminal Apneclpanas,
DYERANDSCOURER. street. lAustin, W. 20 msidson. preaiding
2 Miscellaneous. S2f a B.sam"
< T po.nussvaeM2zytne 2 younwiinTae
-* ’ 400 Eh BL modern convenient., Reterences ex- Second DIMriet—aTwH Worth: T.
------------------ -----------Ishangedi long lease. Adare»F.C.W., H. Conner. hidr-sAtic’ole speer,
leaves patient in natural healthy condi- _____________________________________________ Juatice; 1 W. stephens, as-
-"2 NSnszdamid:w.ysgEmavx.",reugoi, K3 pESira"uhisa"gweun.. s:
aEr Dr. Dong co.. Atlanta, Ga. lsupply for summer delivery. Phonesociate justicezstseh "streetman, as-
631 soclate justice.
---------------------I Fourth District — At San Antonio;
WOOD YARD, Blacksmith and Re- John H. James ngAtustice; w. s.
— . . ---------- pair Shop—Buy, sell, exchange and I Fly, associate u.chle. W H Neill, as-
WHEN buying say you saw it in The repair vehicles; new lathe for cutting sociaterusti Justice, H
panasa.Anoar
‛w.Herasoqntzse*pzonsn.popecs U0‘ oalu: Buntdezz"hov.ra Tempieon
------------ - ----- ■ W. QUEBEDAUX. Fuel Supply and ----;------“JT “
R..,2. (Transfer Line—Prompt and careful at- ‛f,you are in • hurryfor your brief
DargalnS | tention to all business. Phones <31. work, try us. Day and night we are
—------------------------------------1 __________________________ . zettina law work for the profession,
WHEN buying say you saw it in The I Notice of Incorporation and Dissolu. and always have a battery of linotypes
Statesman. tion of Partnership. that can be put on a rush order.
. GAMMEL-STATESMAN PUB. COm
The partnership heretofore doing a Austin. Texas,
general hardware mercantile business--------------------
--------—.in the city of Houston, Harris county,.,, ... . ... A „ «
FOR SALE OR RENT—A first-class Tex,, under the name of F. W. Heit- COURTS OF CIVIL APPEALS,
restaurant with the best of trade; mann & Co., composed of F. A. Heit- va"
must leave on account of sickness. Call mann and T. C. Lorenzen, has been
at once at 811 Congress Ave. (dissolved, and said partners, « with
others, have incorporated under the
1Aw8.o the ztate ot Texaz and have No. 3244.—William stacy. Appellant,
obtensass.charter under the.nams.ot ys. Henke a Pillot, Appellees; Appeal
--------———-— F-.W- Heitmann company, and hereafter | from the District Court of Liberty
WHEN buying say you saw it in The I sald business will be conducted by I County.
Statesman. | sald corporation, and said partnership (
____- ____________________ Will not further be engaged in said bus- I j D Mar+:n W i nllase M n
MONET to loan on farm,: no oom- npr 43 su55, witness our band, this Rayburn and Zrr & Minor, fr'appel:
mlsalon charged. Brown Bro, trAPr 26 1‛Hns. T c LOnENZEN, iant.
F. A. HEITMANN.
+ LITTLE PRICES.
Th, price I, ONI CENT A WORD Tor th, fret ingertlon ara hale ■ +
+ cent • word hr each consecutive insertion. No ad. taken for less .
+ than 15 centa-
+++++++4444++++ ♦+ + ♦ + + + + + + + + + +
ODEEFT A + I PERSONNEL OF THI APPELLATE
W-R™ . 4 COURT! OF TEXAS.
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The Austin Statesman. (Austin, Tex.), Vol. 32, Ed. 1 Friday, May 22, 1903, newspaper, May 22, 1903; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1448368/m1/6/: accessed July 13, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; .