GAMING.

See Constitutional Law, § 205; Lotteries.
III. CRIMINAL RESPONSIBILITY.

(A) Offenses.

§ 72 (Tex.Cr.App.) A private residence cannot be an appurtenance to a public road, near which it is, so as to authorize prosecution for permitting gaming therein, as in a public place. -Dunn v. State, 161 S. W. 467.

GARNISHMENT.

GUARANTY.

See Indemnity; Principal and Surety.

II. CONSTRUCTION AND OPERATION.
§ 36 (Tex.Civ.App.) On a guaranty of certain
assets of a bank transferred to plaintiff, its
measure of damages was the difference between
the face value of the indebtedness and its actual
value.-Young v. Bank of Miami, 161 S. W.
436.

III. DISCHARGE OF GUARANTOR.
$70 (Tex.Civ.App.) On a guaranty of the col-

See Evidence, § 317; Malicious Prosecution, §§ lection of certain assets of a bank, time not be52, 58, 64, 67; Trial, §§ 251, 256.

V. LIEN OF GARNISHMENT AND
LIABILITY OF GARNISHEE.

§ 105 (Tex.Civ.App.) Garnishing creditors occupy no better position with reference to the fund garnished than did their debtors at the time of the service of the writ.-Burns & Bell v. Lowe, 161 S. W. 942.

ing of the essence, the guarantors were not relieved from liability because the uncollected paper was not delivered to an attorney for suit within 30 days after maturity as provided for.Young v. Bank of Miami, 161 S. W. 436.

IV. REMEDIES OF CREDITORS. diated liability under a contract guaranteeing 877 (Tex.Civ.App.) Defendants having repocollection of certain of a bank's assets, plain§ 108 (Tex. Civ.App.) Where a debtor gave tiff was entitled to sue at once and was not reto his wife money to pay rent and she deposit-quired to prove performance of all precedent ed it in the bank in her own name and gave a conditions on its part.-Young v. Bank of Micheck on the account to the landlord for an ami, 161 S. W. 436. amount in excess of the deposit, but before the check was presented the account was garnished, the rights of the landlord were superior as to such deposit to the garnishing creditor. -Burns & Bell v. Lowe, 161 S. W. 942. VI. PROCEEDINGS TO SUPPORT OR

ENFORCE.

$131 (Mo.App.) Under Hurd's Rev. St. Ill. 1912, c. 62, § 14, exempting from garnishment not to exceed $15 a week of a wage-earner's wages, and requiring every employer to pay over such amount notwithstanding garnishment proceedings, an employer may set up such exemption, though the employé does not interplead and set it up.-John H. Schroeder Wine & Liquor Co. v. Willis Coal & Mining Co., 161 S. W. 352, 356; Schroeder v. Same, Id. 357.

In proceedings to garnishee wages earned by an employé in Illinois, the employer may set up, under the doctrine of comity, the Illinois statute exempting wages to the amount of $15 a week from garnishment, and requiring every employer to pay over such wages notwithstanding garnishment proceedings; a similar policy being adopted by Rev. St. 1909, § 2415.—Îd.

§ 82 (Tex.Civ.App.) Where defendants guaranteed certain assets of a bank on transferring them to plaintiff, the principal debtors were not necessary parties to a suit on the guaranty.Young v. Bank of Miami, 161 S. W. 436. old bank transferred to a partnership operating A suit on a guaranty of certain assets of an a new one held properly brought in the name of the new bank.-Id.

§ 87 (Tex.Civ.App.) In an action on a contract of guaranty, an alleged variance between the contract and the petition held immaterial.Young v. Bank of Miami, 161 S. W. 436.

§ 90 (Tex.Civ.App.) Where a partnership operating a bank transferred its assets to a new firm consisting of one of its members and others, representations of such continuing member as to the collectibility of the paper of the bank, missible on the issue of his guaranty of the asmade to one of the retiring partners, held adsets of the bank.-Young v. Bank of Miami, 161

S. W. 436.

GUARDIAN AND WARD.
See Insane Persons, §§ 54, 65.

VIII. CLAIMS BY THIRD PERSONS. IV. SALES AND CONVEYANCES UNDER ORDER OF COURT. § 217 (Mo.App.) An independent action by one interpleader against another cannot be ingrafted $111 (Tex.Civ.App.) A deed to defendant's upon a garnishment proceeding by the mere fil- grantor signed C. B. per S. Le B., "curator," in ing of a counterclaim, and the court could not the absence of any authority shown for the exerender judgment by default on such counter-cution of the deed by him, held not binding upon claim in favor of such interpleader against the C. B. and insufficient to pass her title.-Le other. State ex rel. Behrens v. Wilson, 161 S. Blanc v. Jackson, 161 S. W. 60. W. 1179.

GIFTS.

See Appeal and Error, § 232; Dedication; Husband and Wife, $$ 492, 250; Parent and Child, 9; Taxation, $8 867, 893; Trial, § 256.

GOOD FAITH.

See Vendor and Purchaser, §§ 229-243.

GRAND JURY.

See Criminal Law, § 1166; Perjury, § 32.

GRAND LARCENY.

See Larceny, § 55.

GRANTS.

See Monopolies, § 2; Public Lands.

HABEAS CORPUS.

I. NATURE AND GROUNDS OF
REMEDY.

$3 (Tex.Cr.App.) Where mayor or other officer refuses to approve sufficient bond of person appealing from mayor's court, mandamus, and not habeas corpus, held to be the proper remedy. -Ex parte Hunt, 161 S. W. 457.

§ 20 (Tex.Cr.App.) A lunacy proceeding is civil, and not quasi criminal, and a person convicted therein is not entitled to habeas corpus to determine the constitutionality of the statute under which the proceedings were instituted.-Ex parte Singleton, 161 S. W. 123.

II. JURISDICTION, PROCEEDINGS,
AND RELIEF.

§ 85 (Tex.Civ.App.) In an action by a father for the custody of his minor child, evidence held

to establish that the child's maternal grand- commissioners' court to pass a new order to parents acquired custody lawfully.-Ex parte cure the defect.-Id. Sams, 161 S. W. 388.

(A) Obstructions and Encroachments. $161 (Mo.App.) Under Rev. St. 1909, § 10,533, imposing a penalty for the obstruction of a public road recoverable by the road district, and Rev. St. 1909, §§ 10,576-10,610, providing for the consolidation of districts, held, that, after consolidation of two districts, the consolidated district was the proper plaintiff in an action for the penalty.-Boonville Special Road Dist. v. Fuser, 161 S. W. 583.

A petition in an action for a penalty under Rev. St. 1909, § 10,533, for obstructing a pubCrimi-lic road held sufficient.-Id.

$108 (Tex.Civ.App.) A debtor has the equitable right to have a chattel mortgage debt satisfied first from the proceeds of the sale of the unexempt mortgaged property before resorting to the sale of the debtor's exempt prop

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

erty.-Pugh v. Whitsitt & Guerry, 161 S. W. 953.

III. RIGHTS OF SURVIVING HUS-
BAND, WIFE, CHILDREN,
OR HEIRS.

III. MANSLAUGHTER. $36 (Tex.Cr.App.) Though accused used insulting epithet intending to provoke a difficulty, if he intended to provoke only an ordinary fight and was forced to kill under the circumstances, held, that he would not be guilty of a higher grade of homicide than manslaughter.-Reed v. State, 161 S. W. 97.

§ 54 (Ark.) Where defendant shot and killed under the belief that he was about to be as

§ 135 (Mo.) The rights and interests of the widow and heirs of a deceased homesteader are not to be determined by the statute of descents and distributions, but by the homestead stat-saulted, but acted too hastily and without due utes which cover the whole ground.-Armor v. Lewis, 161 S. W. 251.

$146 (Ark.) On the death of the mortgagor of a homestead his heir was entitled to rents and profits until one of the mortgagees had asserted his right to foreclose or take possession to subject the rents and profits to the payment of the mortgages.-Armistead v. Bishop, 161 S.

W. 182.

On death of the mortgagor of a homestead it was immaterial to a junior mortgagee whether the rents prior to foreclosure were paid to the heir or to the administrator.-Id.

V. PROTECTION AND ENFORCEMENT
OF RIGHTS.

$185 (Mo.) A homestead is protected against a creditor's judgment lien.-Armor v. Lewis, 161 S. W. 251.

§ 199 (Ky.) Where, in suit to set aside conveyance to debtor's wife as fraudulent, the court concluded that an allotted homestead was insufficient, he could make the allotment himself instead of appointing other commissioners. -Mount v. Fourth Street Bank, 161 S. W. 220. $ 203 (Mo.) A creditor of the owner cannot sell the homestead tract on fi. fa. subject to the homestead right.-Armor v. Lewis, 161 S. W.

251.

HOMICIDE.

See Criminal Law, §§ 778, 805; Indictment and Information, § 191.

II. MURDER.

$8 (Tex.Cr.App.) Under Pen. Code 1911, art. 15, one who committed a homicide in April, before the enactment of Acts 33d Leg. c. 116. effective July 1st, abolishing the degrees of murder, should be tried under the old law.-Hill v. State, 161 S. W. 118.

§ 13 (Tex.Cr.App.) In murder in the second degree malice will be implied from the fact of an unlawful killing not justified or excused. Cooper v. State, 161 S. W. 1094.

§ 18 (Tex.Cr.App.) Where accused and others were engaged in hauling away goods stolen from a burglarized car when accused shot an officer attempting to arrest them, accused was "in the perpetration" of the burglary, within Pen. Code 1911, art. 1141.-Christian v. State, 161 S. W. 101.

care, he was guilty of manslaughter.-Bruder v. State, 161 S. W. 1067.

§ 63 (Tex.Cr.App.) Person who killed another in a fight held guilty only of manslaughter if he entered into the fight with no purpose of killing and the court should have submitted manslaughter from the viewpoint of mutual combat.-Reed v. State, 161 S. W. 97.

§ 63 (Tex.Cr.App.) That accused was a smaller man than deceased held not to reduce homicide committed in a fight with a knife below the grade of manslaughter under the facts.-Dawson v. State, 161 S. W. 469.

V. EXCUSABLE OR JUSTIFIABLE
HOMICIDE.

is
$125 (Tex.Cr.App.) Homicide
excusable
where the death of a human being happens by
accident or misfortune.-Cooper v. State, 161
S. W. 1094.

VII. EVIDENCE.

(B) Admissibility in General.

$ 156 (Tex.Cr.App.) Evidence as to location and extent of wounds inflicted on deceased held admissible on the question of whether an intent to kill was manifest from the manner of ac cused's use of a knife, though deceased's death from wounds inflicted by accused had already been proved.-Dawson v. State, 161 S. W. 469.

§ 158 (Tex.Cr.App.) In a prosecution for killing accused's wife, evidence as to a quarrel earlier in the morning, other than that which was the basis of the homicide, was admissible to show the relation between the parties.-Hill v. State, 161 S. W. 118.

$165 (Tex.Cr.App.) In the trial of accused for the murder of his wife, evidence of his ill treatment during their marriage of 13 months held admissible.-Cooper v. State, 161 S. W. 1094.

$174 (Tex.Cr.App.) Evidence that deceased, after receiving the fatal injuries, and while being taken to a doctor, asked where "the sof a b (meaning accused) was, was properly excluded.-Dawson v. State, 161 S. W. 469.

$188 (Tex.Cr.App.) Accused was not entihad served a two-year term in the penitentiary, tled to prove by decedent's wife that decedent in the absence of an offer to prove that she had informed accused of the fact prior to the killing.-Shaw v. State, 161 S. W. 963.

(C) Dying Declarations.

§ 203 (Tex.Cr.App.) Where decedent, while being helped into the ambulance after being shot, told witness to take decedent's gun because he would never have any more use for it, consciousness of approaching death was shown, within Code Cr. Proc. 1911, art. 808.-Christian v. State, 161 S. W. 101.

(E) Weight and Sufficiency.

$ 250 (Tex.Cr.App.) Evidence held sufficient to support a conviction for manslaughter.Dawson v. State, 161 S. W. 469.

$ 254 (Mo.) Evidence held to sustain a conViction of murder in the second degree.-State v. Miles, 161 S. W. 766.

VIII. TRIAL.

(B) Questions for Jury.

§ 282 (Tenn.) Under Shannon's Code, § 6441, the trial court cannot, where accused pleaded

not guilty and claimed that he fired the fatal shot by accident while attempting to rob deceased, take away from the jury the right to determine whether the offense was murder in the first degree or a lesser crime.-Shipp v. State, 161 S. W. 1017.

(C) Instructions.

$286 (Tex.Cr.App.) Where the evidence showed that accused and decedent who were strangers met suddenly in the nighttime, and accused testified that he cut decedent only once, with a pocketknife, which was not shown to have been a dangerous weapon, merely to defend himself and another against threatened attack and without intent to kill, the court should have instructed that accused should be acquitted of homicide if he had no intent to kill.Trevino v. State, 161 S. W. 108.

§ 292 (Ark.) In a prosecution for assault with intent to kill, instruction as to defendant's felonious intent and as to his resumption of the difficulty after its abandonment held not erroneous as permitting a conviction without considering the element of malice aforethought.-Alford v. State, 161 S. W. 497.

§ 294 (Ark.) Where defendant in a prosecution for assault with intent to kill was guilty of some degree of assault, even if he was too intoxicated to form a specific intent to kill, the omission to charge as to the element of intoxication was not error.-Alford v. State, 161 S. W. 497.

$295 (Tex.Cr.App.) It was error to refuse a requested charge in a homicide case submitting the question of insulting conduct by decedent toward accused's mother, the evidence raising that issue. Trevino v. State, 161 S. W. 108. $300 (Ark.) An instruction, in a prosecution for assault with intent to kill, that, if accused thought he might be murderously assaulted by A., prosecuting witness, "or" the latter's brother, it was his duty to do everything in his power. consistent with his own safety, to avoid the difficulty was not erroneous, where accused testified that when he shot he believed that prosecuting witness and his brothers were making a concerted attack upon him.-Coulter v. State,

161 S. W. 186.

An instruction held not objectionable as permitting an inference that there was evidence that accused could have prevented the injury without shooting after drawing his pistol, where prosecutor testified that accused had his pistol in his hands before he shot.-Id.

$300 (Ark.) In a trial for homicide, instruction held to deal exclusively with the subject of self-defense and not to be objectionable as telling the jury that if there was really no danger to defendant, no matter how honest his belief of danger was, he would be guilty of murder.-Bruder v. State, 161 S. W. 1067.

§ 300 (Mo.) An instruction that accused must have believed and have had reasonable cause to believe that decedent was about to take his life, and that, in determining whether accused had reasonable cause, the jury must consider all the facts, sufficiently submitted the law of selfdefense. State v. Miles, 161 S. W. 766.

An instruction on self-defense held properly refused for want of evidence on which to base

it.-Id.

An instruction that it was the same offense to kill a bad man as to kill a good one, and that decedent when intoxicated was a quarrelsome man, did not justify accused in killing him, held proper.-Id.

$300 (Tex.Cr.App.) Reasonable doubt as to necessity of a charge of manslaughter, selfdefense, or defense of another should be resolved in favor of accused.-Christian v. State, 161 S. W. 101.

$300 (Tex.Cr.App.) The court having given a full charge on self-defense, without any lim

itation on provoking the difficulty, it was not necessary to give defendant's requested instruction that he had a right to seek deceased for an explanation of remarks about him and his sis ter-in-law and if he anticipated danger to arm himself. Strickland v. State, 161 S. W. 110.

$300 (Tex.Cr.App.) Evidence that decedent said to defendant, "I will fix you right now,' and grabbed for an axe, whereupon defendant immediately killed him, did not require a charge on threats.-Belcher v. State, 161 S. W. 459. In a prosecution for patricide, an instruction on self-defense, held not erroneous as containing a condition hypothesizing defendant's knowledge of the character and disposition of deceased and their relative strength.-Id.

$300 (Tex.Cr.App.) Where accused alone testified that deceased had threatened to kill him, and there was no question of any other threats, a charge as to defendant's honest belief as to the making of such a threat by deceased was not called for.-Perales v. State, 161 S. W. 482. Where accused alone testified, without contradiction, that deceased had threatened to kill him, and there was no question of any other threats, a charge as to defendant's honest belief as to the making of such a threat by deceased was not called for.-Id.

re

$300 (Tex.Cr.App.) Where accused, on turning from a hunting expedition, shot decedent on a railroad right of way, the court did not err in omitting to charge that, when accused saw decedent, he had the right to arm himself and demand an explanation of prior threats.Shaw v. State, 161 S. W. 963.

$300 (Tex.Cr.App.) An instruction on selfdefense requiring the jury to find that, at the time defendant shot, he believed that he had been actually assaulted, and that he shot deceas ed in good faith, etc., held erroneous.-Johnson v. State, 161 S. W. 1098.

$301 (Tex.Cr.App.) A reasonable doubt as to necessity of a charge of defense of another should be resolved in favor of accused.-Christian v. State, 161 S. W. 101.

fense of another held erroneous.—Trevino v. § 301 (Tex.Cr.App.) An instruction on deState, 161 S. W. 108.

Where there was evidence in a homicide case

that accused did the cutting to defend another, who was then being attacked by decedent, the issue of the killing in defense of another should have been submitted.-Id.

§ 307 (Tenn.) It is the better practice to charge upon all of the offenses embraced in the indictment, since failure to do so will be reversible if there is any doubt that accused was prejudiced by such omission.-Jones v. State, 161 S. W. 1016.

§ 308 (Tenn.) In view of Shannon's Code, § 6441, requiring the jury to ascertain in their verdict whether the offense is murder in the first or second degree, it was error for the court on trial of an indictment for murder not to instruct on second degree murder.-Jones v. State, 161 S. W. 1016.

$309 (Ark.) An instruction placing the burden of showing the homicide to be manslaughter was proper, where the evidence would have warranted a conviction of murder in the second degree.-Carlton v. State, 161 S. W. 145.

$309 (Tex.Cr.App.) A reasonable doubt as to necessity of a charge of manslaughter should be resolved in favor of accused.-Christian v. State, 161 S. W. 101.

$309 (Tex.Cr.App.) It was not error in a homicide case to refuse to submit in the charge on manslaughter the insulting language by decedent which consisted in calling accused a son of a whore and disgraced.-Trevino v. State, 161 S. W. 108.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

§ 309 (Tex.Cr.App.) Evidence held to call for | lessee became the wife's tenant.-Shull v. Cuman instruction on negligent homicide in the mings, 161 S. W. 360. second degree.-Hill v. State, 161 S. W. 118.

See Master and Servant, § 295; Negligence, § land as a trespasser, and occupied it for four 119; Railroads, § 338.

See Appeal and Error, §§ 719, 1009, 1027, 1172; Bigamy; Descent and Distribution, 128; Divorce; Frauds, Statute of, § 63; Fraudulent Conveyances, § 269; Judgment, $serts his wife, she may sell the community 693; Marriage; Partition, § 9; Pleading, & 433; Sales, 359; Vendor and Purchaser, 8 229.