81119 (Tex.Cr.App.) A bill of exceptions complaining of the refusal of the trial court to put some of the prosecuting witnesses under the rule presents no error, where it does not show what such witnesses testified to.-Smith v. State, 156 S. W. 645. $1121 (Tex.Cr.App.) The sufficiency of the evidence to prove accused's guilt beyond a reasonable doubt could not be reviewed, where the evidence was not in the record, and did not accompany the record.-Clifton v. State, 156 S. W. 1179. § 1122 (Tex.Cr.App.) It was not shown that the court erred in giving a charge which tended to emphasize another portion of the charge, where it did not appear how this could have injured accused, and it was not in fact urged that it did injure him, especially where the evidence was not in the record, and did not accompany the record.-Clifton v. State, 156 S. W. 1179. (E) Assignment of Errors and Briefs. $ 1129 (Tex.Cr.App.) An assignment of error in not giving requested instructions Nos. 1, 2, 3, etc., is not sufficient to authorize their consideration on appeal.-Lynch v. State, 156 S. W. 1182. § 1130 (Mo.App.) Although neither appellant nor respondent file briefs, it is the statutory duty of the court to examine the record for error.-State v. Miles, 156 S. W. 758. (F) Dismissal, Hearing, and Rehearing. $1131 (Tex.Cr.App.) Where defendant pending his appeal has escaped from custody, the appeal will be dismissed.-McDonald v. State, 156 S. W. 209. $1131 (Tex.Cr.App.) Where an appeal was dismissed for want of sufficient recognizance, and appellant immediately entered into a new sufficient one, his motion to set aside the dismissal will be granted.-Ausbrook v. State, 156 S. W. 1177. (G) Review. § 1144 (Ark.) Where the record does not show that accused objected to nor requested any instructions that the court refused, the court on appeal must presume that the trial court correctly instructed on the law.-Rottner v. State, 156 S. W. 1027. $ 1144 (Ky.) In the absence of evidence to the contrary, it will be presumed that partial payment of fines by the wife of accused, whereby the balance due was insufficient to authorize an appeal, was while acting on his authority.-Eutsler v. Commonwealth, 156 S. W. 855. § 1144 (Tex.Cr.App.) In the absence of record evidence, the court must presume that the trial judge charged the law, and all the law, applicable to the facts, and that there was no error in refusing the special charges requested. -Wright v. State, 156 S. W. 624. $1144 (Tex.Cr.App.) Where a special charge is not marked "given" or "refused" and the bill of exceptions does not complain of its refusal, the court on appeal will presume that it was given.-Cole v. State, 156 S. W. 929. $1153 (Ky.) The action of the court in permitting in rebuttal testimony that should have been introduced in chief will not be disturbed unless its discretion has been abused and substantial rights of the party complaining prej udiced thereby.-Duff v. Commonwealth, 156 S. W. 149. $1153 (Tex.Cr.App.) In the absence of any thing showing an abuse of discretion, the action of the trial court in refusing to put some of the prosecuting witnesses under the rule will not be held erroneous.-Smith v. State, 156 S. W. 645. § 1153 (Tex.Cr.App.) Whether a case shall be reopened after the testimony has closed being within the sound discretion of the court, its action will not be disturbed unless the discretion has been abused.-Cole v. State, 156 S. W. 929. §1158 (Ark.) The finding of the trial judge that defendant's testimony as to the involuntary character of his confession was not true is conclusive on appeal, unless the court abused its discretion.-Greenwood v. State, 156 S. W. 427. 1159 (Ark.) A verdict sustained by substantial evidence will not be disturbed on appeal.Rottner v. State, 156 S. W. 1027. 1159 (Ky.) Where the witnesses for the commonwealth testified to facts, which if believed, showed that the offense charged was committed in the county and within 12 months next before the finding of the indictment, a conviction under proper instructions will not be disturbed. -Duff v. Commonwealth, 156 S. W. 149. 1159 (Ky.) In a criminal case, where the verdict was based upon sharply conflicting evidence, it will not be interfered with on appeal unless it appears at first blush so contrary to the evidence as to show that it was the result of passion or prejudice.-Black v. Commonwealth, 156 S. W. 1043. § 1159 (Tenn.) The Supreme Court will not reverse a conviction upon the evidence, unless the evidence preponderates against the verdict and in favor of accused's innocence.-Mahon v. State, 156 S. W. 458. In determining whether the evidence preponderates against a verdict of guilty, immaterial conflicts in the testimony, discrepancies in dates and distances, which are not controlling, and in many cases the weight to be given to the testimony arising from the number and general reputation of the witnesses, are disregarded.-Id. $1159 (Tex.Cr.App.) A verdict on conflicting evidence, but sustained by evidence, if believed and rendered under proper instructions, will not be disturbed.-Haley v. State, 156 S. W. 637. $11662 (Tenn.) Under Pub. Laws 1911, c. 32, error in holding jurors competent, necessitating exhaustion of peremptory challenges, held not ground for reversal, although accused was compelled to accept a juror objectionable to him, but legally competent.-Mahon v. State, 156 S. W. 458. accused did $11662 (Tex.Cr.App.) Where not exhaust his challenges, and no objectionable juror was enforced on him, errors in the selection of jurymen will not be reviewed on appeal.-Beaupre v. State, 156 S. W. 625. $11662 (Tex.Cr.App.) Where attorney for accused, absent when the case was called, appeared before any witness was examined, accused, not injured by the attorney's absence, could not complain that he was forced to trial during the absence of his attorney.-Castenara v. State, 156 S. W. 1180. § 1168 (Ark.) Where defendant's confession was admitted, error, if any, in not withdrawing the jury while the court was hearing evidence to determine its admissibility was harmless.-Greenwood v. State, 156 S. W. 427. § 1168 (Tex.Cr.App.) In a prosecution for burglary, the fact that a witness, who said he had seen defendant at a certain place and time on the night of the burglary, knew the time because he had been so informed by another person, was immaterial; and hence a refusal to exclude it was not error.-Pullen v. State, 156 S. W. 935. Error, if any, in refusing to strike immaterial evidence as to the time when witness saw de For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER fendant, was not ground for reversal, where defendant himself proved that he was at that place at that time.-Id. § 1169 (Tex.Cr.App.) Admitting prosecuting witness' explanation that he called accused a vile name because he thought he was implicated in the separation of himself and his wife held harmless, if erroneous.-Comegys v. State, 156 S. W. 642. $1169 (Tex.Cr.App.) Where the sole defense of accused, charged with seduction, was that there was no engagement of marriage, the admission of evidence as to when and where the father of prosecutrix learned of her pregnancy was not prejudicial.-Cole v. State, 156 S. W. 929. 81172 (Ky.) In a prosecution for unlawfully detaining a woman against her will, an instruction, that if accused grasped her with intent to have sexual intercourse this would constitute a taking and detaining, is harmless, where the prosecuting witness, who alone testified to the detention, stated that he committed such acts; the charge stating only that if he did do such acts he was guilty.-Black v. Commonwealth, 156 S. W. 1043. $1172 (Tex.Cr.App.) Instructions submitting questions of breaking without specific reference to either a day time or night time burglary held not error, where the evidence would support a conviction of one, but not of the other, and the verdict was general.-Shornweber v. State, 156 S. W. 222. 81186 (Tex.Cr.App.) Where, on accused's affidavit of inability to pay, the court rightfully refused a free transcript, because he was represented by employed counsel, and there was no attempt to make up a statement of facts from memory, or to show why a statement of facts was not made up by counsel, or that they were unable to do so, it cannot be held that accused was deprived of a statement of facts through no fault on his part.-Jackson v. State, 156 S. W. 1183. XVI. SUCCESSIVE OFFENSES AND HABITUAL CRIMINALS. $1201 (Ky.) Ky. St. § 1130, known as the habitual criminal act, relates solely to the punishment of crimes.-McIntyre v. Commonwealth, 156 S. W. 1058. XVII. PUNISHMENT AND PREVENTION OF CRIME. $1205 (Ky.) The penalty' imposed for a violation of law does not constitute an element or ingredient of the offense.-McIntyre v. Commonwealth, 156 S. W. 1058. § 1209 (Tex.Cr.App.) Where the information, instructions, and verdict show that accused was found guilty of two offenses, an assessment of two penalties will be sustained.-Sanders v. State, 156 S. W. 927. CROPS. See Damages, §§ 37, 174; Waters and Water Courses, §§ 118, 126. CROSS-EXAMINATION. § 1172 (Tex.Cr.App.) The error in an instruction on a trial for rape on a female under the age of consent that the evidence need not show more than penetration held not reversible; the indictment not alleging that the of- See Evidence, § 502; Witnesses, §§ 268-2821⁄2. fense was accomplished by force, threats, or fraud.-Kinch v. State, 156 S. W. 649. CROSSINGS. a See Railroads, §§ 312-350. in § 1172 (Tex.Cr.App.) An instruction prosecution for forgery that if accused "actually" believed he had authority to sign to a check the name which he signed thereto, the jury should acquit cannot be complained of by accused for not being based upon the hypothesis that accused "reasonably" believed, etc.-Davis v. State, 156 S. W. 1171. CRUELTY. See Divorce, §§ 27, 130. CURTESY. See Executors and Administrators, § 179. CUSTODY. $1173 (Tex.Cr.App.) Failure to charge that evidence of temporary insanity produced by the use of ardent spirits might be considered in mitigation of the penalty pursuant to Pen. Code See Divorce, § 298. 1911, art. 41, held harmless where the jury fixed the lowest penalty prescribed by law for the offense charged.-Drysdale v. State, 156 S. W. See Master and Servant, § 21. 685. § 1174 (Tex.Cr.App.) Error, if any, in a juror's reference to defendant's failure to testify, made after agreement on defendant's guilt, but before fixing the punishment, contrary to the court's direction, held not reversible error in view of the fact that the jury assessed the lowest penalty authorized by law.-Pullen v. State, 156 S. W. 935. § 1186 (Tenn.) Pub. Laws 1911, c. 32, construed to require the court to disregard errors in holding competent jurors whom accused thereupon challenged peremptorily, although he was thereby compelled to accept a juror whom he would otherwise have challenged peremptorily, held not unconstitutional.-Mahon v. State, 156 S. W. 458. § 1186 (Tex.Cr.App.) Defendant, who filed no affidavit stating his inability to pay for a statement of facts, and who after his disagreement with the district attorney failed to request the trial judge to prepare and file a statement of facts, was not entitled to reversal because of failure to secure a statement of facts.-Smith v. State, 156 S. W. 224. CUSTOMS AND USAGES. DAMAGES. See Appeal and Error, §§ 216, 1004, 1171; Attachment, § 7; Carriers, §§ 94, 106, 277, 408; Death, §§ 52, 77; Execution, § 472; Husband and Wife, § 260; Limitation of Actions, § 32; Malicious Prosecution, § 69: Mandamus, § 177; New Trial, § 76; Railroads, §§ 411, 412; Telegraphs and Telephones, $$ 66, 70, 71; Trespass to Try Title, 88 52, 57; Trial, §§ 252, 256; Trover and Conversion, §§ 44, 53; Waters and Water Courses, § 179. III. GROUNDS AND SUBJECTS OF COMPENSATORY DAMAGES. or Remote, Contingent, Or (A) Direct Prospective Consequences or Losses. 32 (Ky.) One suing for personal injury may recover for physical suffering.-McClintic Marshall Const. Co. v. Eckman, 156 S. W. 382. § 37 (Ky.) One suing for personal injury may recover for loss of time.-McClintic Marshall Const. Co. v. Eckman, 156 S. W. 382. § 37 (Mo.App.) The measure of damages for the destruction of growing crops being the loss of the crops at the time of destruction, no damages can be allowed for the owner's loss of em § 39 (Tex.Civ.App.) Where the negligence of defendant's driver caused plaintiff's horse to run away, damages for the depreciation in the value of the horse which had been a gentle animal, but became vicious because of running away, are not too remote to be recovered. United States Express Co. v. Taylor, 156 S. W. 617. $158 (Mo.App.) In an action for personal injuries, any injury shown by the evidence to be a natural consequence of that pleaded, and, while not a necessary consequence, a usual one that could reasonably be expected to follow from the injuries alleged, may be proved. S. W. 54. § 43 (Ky.) One suing for a personal injuryCooley v. Kansas City Elevated Ry. Co., 156 may recover the expenses incurred for medical treatment and nursing, not in excess of the sum demanded.-McClintic Marshall Const. Co. v. Eckman, 156 S. W. 382. Evidence that plaintiff subsequently became Pregnant and suffered a miscarriage held admissible under petition alleging retroversion and falling of the womb, laceration of the abdominal walls, and displacement of the pelvic or § 48 (Ky.) One suing for personal injury may recover for mental suffering.-McClintic Mar-gans.-Id. shall Const. Co. v. Eckman, 156 S. W. 382. (B) Aggravation, Mitigation, and Reduc-juries, the extent of plaintiff's injuries was ful tion of Loss. $60 (Ky.) Under contract between owner of coal elevator and a railroad for breach of the railroad's contract to repair a switch, damages recoverable by the owner, who was himself bound to make part of the repairs, should be reduced by the sum at which it would have cost him to make such repair.-Frankfort & C. Ry. Co. v. Jackson, 156 S. W. 103. § 62 (Tex.Civ.App.) Ordinary care to reduce consequences of injury held not to require an injured person to have his arm broken over, in order to break up a cartilaginous mass around a joint; and hence evidence that this could be done was properly excluded.-Snyder Ice, Light & Power Co. v. Bowron, 156 S. W. 550. VI. MEASURE OF DAMAGES. (C) Breach of Contract. § 120 (Ky.) On breach of a railroad's contract to deliver coal at an elevator as long as the owner remained in the coal business and continued to get coal over the railroad which did not destroy the business, but only impaired its value, the owner was not entitled to damages for depreciation in the market value of the property, but only for the depreciation or loss in the net income from the business to the time when he disposed of it.-Frankfort & C. Ry. Co. v. Jackson, 156 S. W. 103. VII. INADEQUATE AND EXCESSIVE DAMAGES. § 131 (Mo.App.) In an action for personal injuries, where no limbs were lost and no disfigurement resulted, and there was a dislocation at the hip and at some of the ribs, judgment for $7,500 will be reversed unless a remittitur of $3,500 is made.-Welborn v. Metropolitan St. Ry. Co., 156 S. W. 778. $ 132 (Ark.) A verdict of $10,000 for a servant struck on the shin by a sledge hammer in the hands of a car repairer whom he was helping, who during 11 months to the time of trial suffered great pain, and was confined to his bed for most of the time, who was unable to do any work, and constantly required the attendance of a physician and whose leg would probably have to be amputated, was not excessive.-Chicago, R. I. & P. Ry. Co. v. Smith, 156 S. W. 166. § 132 (Tex.Civ.App.) A verdict for $7,000 for a personal injury, resulting in plaintiff becoming a hopeless and permanent cripple by reason of a fracture of the thigh bone, would not be disturbed as excessive.-Texas & N. O. R. Co. v. Murray, 156 S. W. 594. § 158 (Mo.App.) Where, in an action for inly proved, whether she knew of their extent when she brought her action, or was acting on sulted her counsel, was immaterial.-Erdmann a knowledge of her physicians when she conv. United Rys. Co. of St. Louis, 156 S. W. 764. § 158 (Tex.Civ.App.) A petition in an action by an employé for a personal injury, which alleged that a push car was thrown against his leg, impairing the muscles and nerves thereof, that about two weeks later he undertook to move heavy timbers, but his leg, on account of the blow, gave way, and that about a month afterwards he slipped on his injured leg and sustained injuries, making him cripple, stated a cause of action for all the injuries.-Texas & N. O. R. Co. v. Murray, 156 S. W. 594. a permanent § 166 (Tex.Civ.App.) In an action against a railroad company for injuries to a female plaintiff, evidence that the injury might have continued latent for a long time held admissible.Houston & T. C. Ry. Co. v. Fox, 156 S. W. 922. § 174 (Mo.App.) In an action for damages for the destruction of growing crops, evidence of previous yields upon the same land or upon similar land, together with the cost of production and of the market price, is competent on the measure of damages.-Pace v. St. Louis Southwestern Ry. Co., 156 S. W. 746. § 185 (Ark.) In an action for injuries to a passenger on a mixed train caused by cars backing against the coach standing at a station, evidence held to support a finding that the passenger's suffering and condition were proximately caused by the injuries received while a passenger.-Memphis, D. & G. R. Co. v. Steel, 156 S. W. 182. 185 (Tex.Civ.App.) Evidence held to support | a pecuniary as well as from a moral standa finding that the condition of one suing for a point.-Gentry v. Wabash R. Co., 156 S. W. personal injury was due to a blow on his leg, 27. negligently inflicted.-Texas & N. O. R. Co. v. Murray, 156 S. W. 594. § 188 (Tex.Civ.App.) In an action against a railroad company for damages to a shipment of cattle, evidence held sufficient to support findings of the value of the cattle injured and killed.-El Paso & Southwestern Co. v. Hall, 156 S. W. 356. (C) Proceedings for Assessment. § 208 (Ark.) In an action for injuries to a passenger, the question of permanent injury and future suffering held properly submitted to the jury.-Memphis, D. & G. R. Co. v. Steel, 156 S. W. 182. $208 (Tex.Civ.App.) In an action for injuries to a married woman, evidence held to justify submission to the jury of the damages plaintiffs were entitled to recover for her inability to perform her household duties since the accident. -Posener v. Long, 156 S. W. 591. (F) Trial, Judgment, and Review. § 104 (Mo.App.) An instruction in a child's action for a parent's wrongful death that the jury should consider only the loss of its father's "support and maintenance from the time of his death during the child's minority" naturally included the consideration of the care, education, etc., of the child by the parent.Gentry v. Wabash R. Co., 156 S. W. 27. An instruction that the jury should only consider the loss of support and maintenance from the parent's death during the child's minority, and the verdict must be based upon the evidence showing the value of such support and maintenance without resorting to conjecture, held to improperly require a showing as to decedent's earnings in order to determine the value of plaintiff's support and maintenance. -Id. DEBTOR AND CREDITOR. 186; Bankruptcy. See Fraud. DECEIT. § 210 (Mo.App.) It is unnecessary that the in- See Assignments for Benefit of Creditors, § structions limit each specific item of damage alleged to have been sustained to the amount pleaded for that item in the petition.-Erdmann v. United Rys. Co. of St. Louis, 156 S. W. 764. § 216 (Mo.App.) An instruction in a personal injury action that plaintiff could recover for such suffering as the jury might believe she in all "probability" would endure in the future was not erroneous for using the quoted word.-Welborn v. Metropolitan St. Ry. Co., 156 S. W. 778. 8216 (Tex.Civ.App.) An instruction held not misleadingly erroneous in not requiring dam: See Equity, § 427. ages for future mental suffering to be based upon past negligence.-Missouri, K. & T. Ry. Co. of Texas v. Taylor, 156 S. W. 544. DAMS. See Waters and Water Courses, § 179. DAUGHTERS OF REPUBLIC. See Corporations, § 14; Injunction, § 46. DEATH. See Carriers, § 383; Licenses, § 56; New II. ACTIONS FOR CAUSING DEATH. (D) Pleading and Evidence. § 49 (Mo.App.) An administrator, suing under Rev. St. 1909, §§ 5426, 5427, for the negligent death of his intestate, must, in view of section 5425, allege the names of the beneficiaries for whom he sues.-Johnson v. Dixie Mining & Development Co., 156 S. W. 33. § 52 (Mo.App.) An administrator, suing under Rev. St. 1909, §§ 5426, 5427, for the negligent death of his intestate, must, in view of section 5425, allege facts from which the measure of damages may be ascertained.-Johnson v. Dixie Mining & Development Co., 156 S. W. 33. § 58 (Ky.) In an action for the wrongful death of plaintiff's intestate, a man of 82 years, a failure to introduce evidence of his earning capacity was not fatal to a recovery therefor, but the jury might infer that he had some earning capacity.-Chesapeake & O. Ry. Co. v. Bank's Adm'r, 156 S. W. 109. 877 (Mo.App.) Evidence held to support a finding of pecuniary loss suffered by children from the death of their father.-Gentry v. Wabash R. Co., 156 S. W 27. (E) Damages, Forfeiture, or Fine. § 86 (Mo.App.) A child is entitled to recover damages for the loss of the parent's care, guidance, training, and education, considered from See Criminal Law, §§ 412-420; Evidence, §§ 271, 313. DECREE. DEEDS. See Bankruptcy, § 265; Boundaries, § 3; Cancellation of Instruments, $ 59; Estoppel, §§ 26, 28; Evidence, § 343; Frauds, Statute of, §§ 117, 129; Fraudulent Conveyances; Homestead, § 118; Husband and Wife, $$ 119, 131: Infants, § 100; Insane Persons, $ 61; Logs and Logging, § 3; Lost Instruments, §§ 23, 24; Mortgages; Reformation of Instruments, § 45; Vendor and Purchaser, §§ 76, 231. I. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments. § 38 (Ky.) That deeds did not describe the land conveyed by metes and bounds or give the number of acres did not affect their validity.— Ison v. Wolf, 156 S. W. 129. (D) Delivery. 856 (Ark.) Any disposal of a deed accompanied by act, words, or circumstances, indicating that the grantor intends that it shall take effect as a conveyance, is a sufficient delivery.-Stephens v. Stephens, 156 S. W. 837. (E) Validity. § 69 (Ky.) Grantors, who conveyed all of their interest in the farm owned by their father, held not entitled to defeat the title of a subsequent grantee by a claim that they did not know that their father owned a part of the land without showing that the grantees knew of their ignorance.-Ison v. Wolf, 156 S. W. 129. III. CONSTRUCTION AND OPERA TION. (B) Property Conveyed. 114 (Ky.) Conveyance of party's undivided interest in land held to pass the interest of another which he had acquired at sheriff's sale, although he had not then received the sheriff's deed.-Wilson v. Hoover, 156 S. W. 880. (C) Estates and Interests Created. (D) Exceptions and Reservations. IV. PLEADING AND EVIDENCE. sections 411 and 2903, requiring depositaries See Banks and Banking, § 119. DESCENT AND DISTRIBUTION. See Action, § 50; Executors and Administra- I. NATURE AND COURSE IN GEN- §11 (Ark.) Where the equitable and legal es- 203 (Tex. Civ.App.) In a suit to set aside § 14 (Ark.) Under Act Feb. 3, 1843, p. 133, III. RIGHTS AND LIABILITIES OF § 208 (Ark.) Evidence to rebut the presump- Evidence held to show the delivery of a deed. § 211 (Ark.) Evidence held to show that plain- $211 (Tex.Civ.App.) Evidence held to show Evidence held to show that a deed was pro- DEFAULT. See Judgment, §§ 143, 145. DELAY. See Municipal Corporations, § 362; Sales, § DELIVERY. See Deeds, §§ 56, 194, 208; Telegraphs and DEMURRER. See Pleading, §§ 189-214, 418. To evidence, see Trial, § 150. DE NOVO. See Appeal and Error, § 854; Wills, § 374. DEPOSITARIES. $7 (Ky.) Ky. St. § 4693, requiring state de- in General. |