Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 455
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1875.] THE STATE V. DUKE. 455
if the pleadings of the plaintiff presented this question. No
such question was before them. The error of the court in the
charge given may be illustrated by supposing a suit brought
to recover damages for injuries sustained by reason of the
gross negligence and misconduct of the person driving a carriage,
the petition alleging, that by reason of the unlawful
driving and great speed of the horses, he was thrown down and
trampled on by the horses, and run over by the carriage, and
forced and thrown down by the horses and vehicle, by reason
of which he sustained great injury. It will not be contended,
that a charge directing the jury to find for the plaintiff, even
though he might not have, been touched by the horses or carriage,
provided the jury believed from the evidence, that
"the high speed at the time of the accident was the direct
" cause of the" injury to plaintiff, even if, in his efforts to
escape, the plaintiff injured himself, a proper instruction;
such a charge would certainly be error. The charge presented
a question for the jury outside of the case as made by the
pleadings, and as such is a material error, for which the judgment
must be reversed, and the cause remanded.
Reversed and remanded.
THE STATE v. GEORGE DUKE.
1. DEADLY WEAPONS.-INDICTMENT FOR CARRYING. An indictment for
unlawfully carrying deadly weapons, under the Act of April 22, 1871,
should negative that the weapon was carried by a person, or at a place,
or under circumstances allowed by the statute.
2. SAME. An indictment for charging that defendant did unlawfully carry
on his person one pistol, known as a six-shooter," does not charge an
offense against the law.
3. CONSTITUTIONAL LAW. The provisos in the act being essential parts of
th.e description of the offense, a statute authorizing their omission would
be in violation of the Constitutional right to be exempt from answering
any criminal charge but upon indictment or information.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/463/: accessed April 26, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .