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§ 844. If accused feared that part of an instruction authorized the objection of the whole of a witness' testimony, who was found to have sworn falsely in part, held that he should have objected to the instruction on that ground; a general objection being insufficient.-Jackson v. State (Ark.) 843.

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XIII. MOTIONS FOR NEW TRIAL
AND IN ARREST.

§ 878. A verdict held applicable only to that count of the indictment which was submitted to the jury.-Chappell v. State (Tex. Cr. App.) 274.

922. The statement of a ground for new trial held to call the court's attention to a failure to submit the issue of aggravated assault.Furgerson v. State (Tex. Cr. App.) 594.

§ 925. Evidence of misconduct of the jury held to require a new trial.-Tuller v. State (Tex. Cr. App.) 1158.

§ 938. Where a person was not called as a witness, because erroneously supposed to be disqualified because charged with a similar offense, his testimony after acquittal cannot be considered as newly discovered.-Coleman v. State (Tex. Cr. App.) 573.

§ 939. A new trial for newly discovered evidence held properly denied.-Cooper v. State (Tex. Cr. App.) 862.

XIV. JUDGMENT, SENTENCE, AND
FINAL COMMITMENT.

§ 830. A requested instruction, though objectionable as on the weight of the evidence, held to sufficiently call the court's attention to the necessity for an instruction on the subject. -Cox v. State (Tex. Cr. App.) 886.

(I) Objections to Instructions or Refusal Thereof, and Exceptions.

§ 980. Under Pen. Code 1895, arts. 710, 712, 844. Error in part of an instruction, as and White's Ann. Code Cr. Proc. arts. 554, authorizing a verdict of guilty upon a pre- 555, held, that where an accused pleaded guilty ponderance of the evidence, held waived by fail- of murder, and his plea was accepted by the ure to specifically object to that part.-Jack-court after examination and evidence was introson v. State (Ark.) 843. duced before a jury, the court was not compelled to submit the issue of second degree murder, under article 712.-Miller v. State (Tex. Cr. App.) 864.

§ 977. Under Rev. St. 1899, § 2649 (Ann. St. 1906, p. 1576), the jury finding a verdict of is for the court to do so.-State v. Rollins (Mo.) guilty not having assessed the punishment, it

478.

§ 980. Judgment of conviction can be rendered at a term after that at which pleas of guilty were entered.-Joiner v. State (Ark.) 723.

§ 980. If pleas of guilty in prosecutions for unlawfully selling intoxicants were entered on

conditions which had not been violated, the court on motion to enter judgment on the pleas should either further postpone rendition or permit accused to withdraw his pleas.-Joiner v. State (Ark.) 723.

§ 980. Code Cr. Proc. 1895, art. 555, requiring evidence, after plea of guilty, on the question of punishment, construed.-Woodall v. State (Tex. Cr. App.) 591.

§ 980. The word "evidence," as used in Code Cr. Proc. 1895, art. 555, defined.-Woodall v. State (Tex. Cr. App.) 591.

§ 980. In pleas of guilty, as well as not guilty, the provisions of the statutes should be looked to, and govern the trial of criminal cases. Woodall v. State (Tex. Cr. App.) 591.

980. Under Pen. Code 1895, arts. 710, 712, and White's Ann. Code Cr. Proc. arts. 554, 555, held, that where a person pleaded guilty to murder, and the evidence showed that he was guilty of murder in the first degree, the court was not obliged to define to the jury assessing the punishment murder in the first degree.-Miller v. State (Tex. Cr. App.) 864.

$995. What a judgment consists of under Code Cr. Proc. 1895, art. 831, stated.-Robinson v. State (Tex. Cr. App.) 276.

XV. APPEAL AND ERROR, AND
CERTIORARI.

338, 340.

In prosecution for homicide, see Homicide, §§ In prosecution for violations of municipal ordinances, see Municipal Corporations, § 642. Remedy by appeal or writ of error as affecting right to habeas corpus, see Habeas Corpus, $ 4.

(A) Form of Remedy, Jurisdiction, and | tion for a continuance cannot be reviewed Right of Review.

§ 1017. Notwithstanding Act May 31, 1909 (Laws 1909, p. 959), the Legislature cannot add to or take from the jurisdiction vested in the Supreme Court by Const. art. 7, §§ 4, 5, and it cannot vest it with jurisdiction to try capital offenses as the circuit court, and it is only for errors of that court that it may reverse or modify, and, unless it_erred, the Supreme Court can only affirm.-Harding v. State (Ark.) 90. § 1019. The Court of Appeals has criminal jurisdiction of misdemeanors only, and the fact that punishment for assault with intent to kill, which is a felony, has been assessed at a fine, does not give the court jurisdiction thereof.State v. Wilson (Mo. App.) 996.

§ 1024. In view of Kirby's Dig. § 1851, and Const. 1874, art. 2, § 8. held that, under the direct provisions of Kirby's Dig. § 2604, a judgment discharging accused in a prosecution for criminal libel cannot be reversed on appeal.State v. Smith (Ark.) 1057.

§ 1024. Kirby's Dig. § 2603, held not to authorize an appeal by the state to determine the correctness of rulings upon the sufficiency of the evidence to sustain a conviction in a prosecution for criminal libel.-State v. Smith (Ark.) 1057.

(B) Presentation and Reservation in Lower Court of Grounds of Review. 1037. Impropriety in argument by the state's attorney is not ground for reversal, where accused did not request an instruction withdrawing the argument or directing the jury to disregard it.-Woodward v. State (Tex. Cr. App.) 271.

§ 1048. The admissibility or competency of evidence must be presented to the trial court for decision before it can err as to its admission, and the same is true of the law of the case, and, though no exception is necessary in capital cases under Act May 31, 1909 (Laws 1909, p. 959), nor a motion for new trial, it must appear that the decision was made before the Supreme Court can find error.-Harding v. State (Ark.) 90.

§ 1054. Though no exception is reserved, the testimony of the wife, either directly or through hearsay, cannot be used by the state as a predicate for the conviction of the husband in cases which do not involve any act of violence towards the person of the wife. Woodall v. State (Tex. Cr. App.) 591.

§ 1064. A motion for new trial, complaining of the charge, held too general to be considered on appeal.-Davis v. State (Tex. Cr. App.) 863. § 1064. Objection to charge as not submitting a certain issue, not having been urged on motion for new trial, held not available on appeal.-Daniels v. State (Tex. Cr. App.) 1153. (C) Proceedings for Transfer of Cause, and Effect Thereof.

§ 1069. Under Kirby's Dig. §§ 2588, 2589, and Act March 6, 1909 (Acts 1909, p. 636), an appeal in vacation after the term from a conviction of felony held improperly allowed.-Currie v. State (Ark.) 842.

§ 1069. Act May 31, 1909 (Acts 1909, P. 890), amending Kirby's Dig. § 6218, relating to civil appeals, held not applicable to criminal cases.-Currie v. State (Ark.) 842.

§ 1076. An appeal will be dismissed for failure to file a sufficient recognizance.-Tidwell v. State (Tex. Cr. App.) 1128.

where the motion is not in the record.- Ward v. State (Tex. Cr. App.) 1145.

§ 1088. An application for a continuance cannot be reviewed in the absence of a bill of exceptions.-Robinson v. State (Tex. Cr. App.)

276.

§ 1088. In the absence of a bill of exceptions the action of the court in refusing a new trial cannot be revised.-Robinson v. State (Tex. Cr. App.) 276.

§ 1090. Exceptions cannot be saved at the trial by record entries.-School Dist. of Fredericktown ex rel. Fredericktown Brick Co. v. Beggs (Mo. App.) 530; School Dist. of Fredericktown ex rel. Fredericktown Lumber Co. v. Same (Mo. App.) 532.

§ 1090. Where the record on appeal contains neither a statement of facts nor bills of exception, there is no question presented for review. -Wilson v. State (Tex. Cr. App.) 570.

§ 1091. A bill of exceptions to the admission in evidence of a confession in a burglary prosecution held not sufficiently specific, not setting out the confession, and the grounds of objection not being verified as facts.-Malloy v. State (Tex. Cr. App.) 598.

§ 1091. A bill of exceptions held insufficient. -Green v. State (Tex. Cr. App.) 860.

§ 1091. A complaint in the motion for new trial of the court's overruling of an application for a continuance cannot be reviewed where the action of the court is not preserved in the bill of exceptions.-Ward v. State (Tex. Cr. App.) 1145.

§ 1092. Orders extending time in which to file a bill of exceptions granted after the expiration of the time in which to file the bill held invalid.-State v. Leahy (Mo.) 399.

§ 1092. The court's approval of a bill of exceptions does not certify that the grounds of objection are true.-Woodward v. State (Tex. Cr. App.) 271.

§ 1092. In a prosecution for violation of the liquor law, error of the court in considering two prosecutions together held not shown.-MeAdams v. State (Tex. Cr. App.) 1156.

§ 1092. Where the record on appeal shows that the trial judge refused to prepare or sign a bill of exceptions to the admission of evidence, on the ground that there was no objection or exception by appellant, the court will not review the matter presented by the bill of exceptions.-Marsden v. State (Tex. Cr. App.)

1160.

and no error appears in the record proper, the § 1094. Where no bill of exceptions is filed, judgment will be affirmed.-State v. Branch (Mo. App.) 793.

§ 1097. In the absence of a statement of facts in the record, the appellate court cannot determine whether a special charge was applicable to the facts.-Craven v. State (Tex. Cr. App.) 574.

§ 1097. Where the record on a criminal appeal contains no statement of facts, held, that the appellate court could not consider certain assignments of error in the motion for a new judgment of conviction must be affirmed; no trial, depending upon the evidence, so that the error appearing on the record proper.-Craven v. State (Tex. Cr. App.) 574.

§ 1101. Where there is no statement of facts, and no question in the record which can be reviewed without it, the judgment will be affirmed.-Rutherford v. State (Tex. Cr.

(D) Record and Proceedings Not in Rec- App.) 1154.

ord.

§ 1109. An appeal will be dismissed, where the record shows no notice of appeal.-Nickerson v. State (Tex. Cr. App.) 601.

$1086. A complaint in the motion for new trial of the court's overruling of an applica

1111. Accused is bound on appeal by the facts stated in the bill of exceptions accepted by him.-Woodward v. State (Tex. Cr. App.) 271.

§ 1111. Where accused on appeal accepts a bill of exception as qualified by the court, it will be considered by the court on appeal as presented in the record.-Marsden v. State (Tex. Cr. App.) 1160.

§ 1159. A certain question of fact in a crim§ 1120. Accused's bill of exceptions to the ex-inal case held one peculiarly within the province clusion of testimony cannot be considered on ap- of the jury.-State v. Colvin (Mo.) 448. peal where the purpose of the testimony, or what § 1159. witness' answer would have been, is not stated will not be reversed.-Tamplin v. State (Tex. A conviction on conflicting evidence therein.-Woodward v. State (Tex. Cr. App.) Cr. App.) 264; Cooper v. Same (Tex. Cr. App.)

862.

§ 1124. The denial of a motion for a new trial for newly discovered evidence will not be reviewed in the absence from the record of the affidavit in support of such motion.-State v. Steele (Mo.) 406.

271.

§ 1120. Where, in a prosecution for assault on a city marshal who had arrested accused's father, the bill of exceptions to the admission of evidence as to the circumstances of the arrest stated as a ground of objection that accused was not present at the arrest, but his absence is not stated as a fact in the bill, the ex§ 1168. The refusal to require the state to ception to the evidence cannot be considered.-elect on which act of intercourse it would seek Marsden v. State (Tex. Cr. App.) 1160. a conviction held not reversible error.-State v. Sechrist (Mo.) 400.

§ 1124. That a defendant was forced to trial without preparation held not reviewable by the appellate court where the motion for new trial was not sworn to.-Robinson v. State (Tex. Cr. App.) 276.

In prosecutions for homicide, see Homicide, §§ 338, 340.

§ 1137. Accused cannot complain of evidence brought out by his own cross-examination of the state's witness.-Marsden v. State (Tex. Cr. App.) 1160.

§ 1141. It will be assumed on appeal that the trial court did not intend to give a contradictory instruction.-Jackson v. State (Ark.) 843.

§ 1149. Whether or not a plea of guilty should be withdrawn and one of not guilty substituted, as permitted by Kirby's Dig. § 2296, is a matter for the trial court's discretion, the exercise of which will not be disturbed unless clearly abused.-Joiner v. State (Ark.) 723.

§ 1151. Motions for continuance are addressed to the sound discretion of the trial court, and judgment will not be reversed for denial of a continuance, in absence of manifest abuse of discretion.-Jackson v. State (Ark.) 843.

(F) Dismissal, Hearing, and Rehearing.

§ 11702. Misconduct of the county attor

§ 1131. An appeal dismissed for insufficiency of the recognizance will be reinstated on the subsequent filing of a sufficient recogni-ney in asking defendant about refusal of bail to him held, in view, of objection sustained and zance.-Tidwell v. State (Tex. Cr. App.) 1128. no answer, not to require reversal.-Lewis v. State (Tex. Cr. App.) 1137. (G) Review.

§ 1151. Under the circumstances, held, that the trial court's ruling, denying a fourth application for a continuance to procure the presence of witnesses, will not be disturbed in view of the lack of diligence shown.-Woodward v. State (Tex. Cr. App.) 271.

§ 1159. A conviction will not be reversed, where there is evidence justifying it.-Jackson v. State (Ark.) 843; Coleman v. Same (Tex. Cr. App.) 573.

§ 1153. In the absence of an abuse of the court's discretion, a conviction will not be reversed because of leading questions asked on the trial.-State v. Steele (Mo.) 406.

1159. To justify a reversal on the weakness of the testimony, the verdict must be irreconcilable with human experience.—State v. Sechrist (Mo.) 400.

§ 1154. The extent of argument in a criminal case is largely in the discretion of the trial court, which is not subject to revision, unless abused.-Hall v. State (Tex. Cr. App.) 573.

§ 1158. A finding on conflicting evidence that a juror was not guilty of misconduct held conclusive on appeal.-Blount v. State (Tex. Cr. App.) 570.

§ 1159. Where, though the evidence is conflicting, there was ample testimony if believed, to support the verdict, a conviction will not be disturbed on appeal.-Woodward v. State (Tex. Cr. App.) 271.

§ 1169. Any error in admitting an opinion of a nonexpert held harmless.-Ashley v. State (Tex. Cr. App.) 589.

§ 1169. Where the testimony erroneously admitted is not of a very material character, the withdrawal thereof by the court held to cure the error.-Darnell v. State (Tex. Cr. App.) 1122.

§ 1169. Admission of evidence to prove a fact already proved, if inadmissible, held immaterial.-Marsden v. State (Tex. Cr. App.) 1160.

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CRIMINAL LIBEL.

See Libel and Slander, 88 148-159.

CROPPERS.

Renting on shares, see Landlord and Tenant, § 332.

CROPS.

Injuries from negligence or malpractice by physician or surgeon, see Physicians and Surgeons, § 18.

Injuries to growing crops, measure of damages, Injuries from obstruction of navigable waters, see Damages, § 112. see Navigable Waters, § 26.

Injuries from operation of railroad in street, see Railroads, § 222.

Injuries from public improvements, see Munici-
pal Corporations, § 401.

Loss of or injury to live stock in course of
transportation, see Carriers, § 229.
Taking or detention of personal property, see
Trover and Conversion, § 46.

CROSS-COMPLAINT.

For penalty for usury, see Usury, § 142.
CROSS-ERRORS.

Assignment, see Appeal and Error, § 747.

CROSSINGS.

Railroad crossings, see Railroads, § 413. Railroad crossings, accidents at, see Railroads, §§ 305-351.

CROSS-EXAMINATION.

Of expert witnesses, see Evidence, § 558.

Of witnesses in general, see Witnesses, §§ 275, I. NATURE AND GROUNDS IN GEN330, 372, 387.

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Delay in transportation or delivery of goods, see Carriers, 105.

Delay in transportation or delivery of live stock, see Carriers, § 229.

Injuries from negligence or default in transmission or delivery of telegraph or telephone message, see Telegraphs and Telephones, §§ 6771.

CUSTOMS AND USAGES.

Customary use of railroad track as affecting liability for personal injury, see Railroads, $ 356.

Recovery in particular actions or proceedings.
See Trover and Conversion, § 46.

DAMAGES.

Compensation for property taken for public use,
see Eminent Domain, §§ 69-146.
Release of claim for damages, see Release.

ERAL.

§ 2. The definition of "gross negligence" as affecting punitive damages in an action for personal injury occurring in Tennessee should be given as approved by its Supreme Court.-Louisville & N. R. Co. v. Lynch (Ky.) 362.

III. GROUNDS AND SUBJECTS OF
COMPENSATORY DAMAGES.

(A) Direct or Remote, Contingent, Or Prospective, Consequences or Losses. For delay in transportation of goods, see Car riers, § 105.

In actions for causing death, see Death, § 85.

§ 53. In an action for delay in the shipment show mental suffering held error.-Missouri, K. of a corpse, admission of certain evidence to & T. Ry. Co. of Texas v. Linton (Tex. Civ. App.) 678.

(B) Aggravation, Mitigation, and Reduction of Loss.

§ 62. A passenger held required to exercise ordinary care to minimize damages occasioned by breach of duty of the carrier.-Chesapeake & O. Ry. Co. v. Austin (Ky.) 144.

§ 62. In an action for damages for breach of a railroad company's contract to rebuild a right of way fence within a week after it was destroyed, whereby plaintiff's meadows were injured, plaintiff held not bound to repair the fence himself to minimize the damage.-Illinois Cent. R. Co. v. Doss (Ky.) 349.

CUSTODY.

Of jury, see Criminal Law, § 854.

Of goods in course of transportation, see Car- Attorney's fees as damages for breach of conriers, 88 74, 76. tract to transport passenger, see Carriers, § 277. Interest as element of damages for conversion of mortgaged property, see Chattel Mortgages, § 176.

IV. LIQUIDATED DAMAGES AND

(C) Interest, Costs, and Expenses of Litigation.

PENALTIES.

§ 76. Considerations controlling in determining whether a provision in a contract for damages upon its breach is a penalty or intended as liquidated damages stated.-Thompson v. St. Charles County (Mo.) 1044.

§ 78. A provision in a building contract imposing upon the contractor payment of a certain amount per day for each day completion was delayed after the contract date of completion held valid as liquidated damages, and not a penalty.-Thompson v. St. Charles County (Mo.) 1044.

Damages for particular injuries.
See Death, §§ 85, 99; Fraud, § 59.
Breach of contract for carriage of passenger, see
Carriers, § 277.
Breach of contract of sale, see Sales, §§ 384,
418; Vendor and Purchaser, § 351.

V. EXEMPLARY DAMAGES.

§ 91. Punitive damages should not be allow-Ry. Co. v. Nix (Ark.) 1076. ed where there is no evidence that defendant acted maliciously, or with gross negligence indicating a wanton disregard of the rights of others. Central Kentucky Traction Co. v. May (Ky.) 1092.

VI. MEASURE OF DAMAGES. Compensation for appropriation under power of eminent domain, see Eminent Domain, §§ 134146.

For particular injuries.

See Fraud, § 59; Trover and Conversion, § 46.
For loss of or injuries to cattle in course of
transportation, see Carriers, § 229.
Injuries from operation of railroad in street, see
Railroads, § 222.

(A) Injuries to the Person.

§ 95. In an action against a railroad company by an engineer for injuries sustained in a collision, plaintiff's measure of damages stated.-Cincinnati, N. O. & T. P. R. Co. v. Silvers (Ky.) 120.

(B) Injuries to Property.

§ 108. Measure of damages occasioned by permitting Johnson grass to go to seed and by washing the same on to the land of another determined.-Missouri, K. & T. Ry. Co. of Texas v. Malone (Tex. Civ. App.) 936.

$112. Where crops of alfalfa are destroyed, and the roots thereof are permanently damaged, the measure of recovery is the damage to the crops and the permanent injury to the land by reason of the destruction of the plant itself. Missouri, K. & T. Ry. Co. of Texas v. Malone (Tex. Civ. App.) 936.

§ 112. Measure of damages for the destruction of the roots of alfalfa determined.-Missouri, K. & T. Ry. Co. of Texas v. Malone (Tex. Civ. App.) 936.

For particular injuries.

See Death, § 99.
Injuries from negligence or default in transmis
sion or delivery of telegraph or telephone mes-
sage, see Telegraphs and Telephones, § 71.

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§ 132. A recovery of $6,000 in a personal injury case held not excessive.-Louisiana & Ark.

§ 130. In a personal injury action a verdict for $7,000 held not excessive.-Missouri, K. & T. Ry. Co. of Texas v. Farris (Tex. Civ. App.)

1174.

132. A verdict in a personal injury action held not excessive.-St. Louis, I. M. & S. Ry. Co. v. Rogers (Ark.) 375, 1199.

§ 132. A verdict for $11,500 held not excessive in a personal injury action.-Citizens' Telephone Co. of Kentucky v. Wakefield (Ky.) 127.

§ 132. In an action for injuries to a passenger assaulted by fellow passengers, a verdict for $7,125 held excessive.-Louisville Ry. Co. v. Wellington (Ky.) 370.

§ 143. In an action against a railroad company by an engineer for injuries sustained in a collision, an instruction as to the measure of damages held erroneous.-Cincinnati, N. O. & T. P. R. Co. v. Silvers (Ky.) 120.

§ 143. What damages may be shown under VII. INADEQUATE AND EXCESSIVE general allegations of damage in a personal inDAMAGES. jury action stated.-Moore v. St. Louis Transit Co. (Mo.) 1013.

8132. A recovery of $10,000 for personal injuries held excessive.-Kentucky Wagon Mfg. Co. v. Shake (Ky.) 1095.

§ 132. A verdict for $4,500 for personal injuries held not excessive.-Oborn v. Nelson (Mo. App.) 178.

§ 132. A verdict of $5,000 for personal injuries held not excessive.-Baker v. Metropolitan St. Ry. Co. (Mo. App.) 764.

§ 132. A verdict in a personal injury action held excessive.-International & G. N. R. Co. v. Brice (Tex. Civ. App.) 613.

§ 132. Evidence that plaintiff's arm was crushed from above the wrist to the shoulder, that there was a running sore at the elbow at the trial which would probably never heal, and that he was unable to work for over a year, held to justify a verdict for $7,922.-Atchison, T. & S. F. Ry. Co. v. Seeger (Tex. Civ. App.). 1170.

VIII. PLEADING, EVIDENCE, AND

ASSESSMENT.

(A) Pleading.

§ 143. In an injury action, the complaint held sufficiently specific in showing how plaintiff sustained damages in the sum of $10,000.Louisiana & Ark. Ry. Co. v. Nix (Ark.) 1076.

§ 158. Evidence of injuries to the spinal cord held admissible under the allegations of damage Transit Co. (Mo.) 1013. in a personal injury action.-Moore v. St. Louis

(B) Evidence.

In condemnation proceedings, see Eminent Domain, § 203.

§ 163. The jury in an action for injuries to a servant held entitled to assume that the servant's condition enabled him to do the work and earn the wages he was receiving at the time of the accident.-Panos v. American Car & Foundry Co. (Mo. App.) 815.

entitled, as showing pain and suffering for which § 166. One suing for personal injury held defendant was liable because of its negligence causing the injury, to testify to tests applied by his doctors to locate the seat of trouble.Louisville & N. R. Co. v. Lynch (Ky.) 362.

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132. Verdict for $5,900 held not excessive for injuries to a young man, while using a telephone, by lightning being conducted over the wires.-Southwestern Telegraph & Telephone Co. v. Abeles (Ark.) 724.

§ 175. In an action against a railroad company for breach of its contract to rebuild a right of way fence within a week, plaintiff could prove that the crop of grass for that year was

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