49 Tex. Crim.

Volume 49 — Texas Criminal Reports

239 opinions

49 Tex. Crim. 1Castle v. State (1905)
The opinion states the case.
49 Tex. Crim. 3Grady v. State (1905)
The opinion states the case.
49 Tex. Crim. 5Arnwine v. State (1905)
1. —Murder—Charge of Court—Manslaughter. If in a murder case, there be evidence, which however inconclusive, tends to prove facts from which the jury may deduce a finding of manslaughter, it is incumbent on the court to give the law of manslaughter in charge to the jury. See facts in opinion which necessitated a charge on manslaughter. 2. —Same—Charge of Court—Self-Defense. See opinion- for charge on self-defense which is held to be sufficient on the facts in evidence.
49 Tex. Crim. 7Taylor v. State (1905)
1.—Theft of Mules—Insanity—Judgment—Charge of Court—Opinion of Witness—Collateral Proceeding. Where upon trial for theft of mules defendant offered in evidence a certified copy of the judgment of a county court adjudging the defendant to be insane upon one attack of insanity, which judgment was rendered several years prior to the trial of defendant for theft; and there was nothing in the record on appeal showing the character of insanity of which he was found guilty in said judgment; and the court ■ submitted in his charge that unless defendant had recovered from such insanity at the time of the commission of the offense he could not be convicted; and the State’s witnesses testified that they never saw anything wrong with defendant’s mind from their observations of and conversations with defendant; and the facts regarding the theft did not differ from the ordinary manner of a thief. Held that there was no error, and that it was competent to introduce evidence as to defendant’s condition of mind, although this was a collateral proceeding. 2. —Same—Bill of Exceptions—Expert Witnesses. Where upon trial for theft the record on appeal did not show that objection was made that the State’s witnesses stated no facts or course of conduct of defendant, and did not negative that the witnesses may have stated such course of conduct or such conversations, and it did not appear that they gave opinions as to the sanity or insanity of defendant, but merely stated the fact that they never saw anything wrong with the defendant’s mind, there was no error in admitting this character of testimony. 3. —Same—Leading Question—Defendant’s Declaration. On a trial for theft of mules it was entirely competent for the State to prove from whom defendant said he purchased the mules, although the question was rather leading, it not having been objected to on that ground. 4. —Same—Charge of Court—Recent Possession—Requested Charge. On a trial for theft where the court instructed the jury with reference to defendant’s explanation, in connection with recently stolen property in his possession, there was no error in refusing to submit a requested charge on the same subject. 5. —Same—Escape—Evidence. Upon a trial for theft of mules it was competent for the State to prove what defendant did in attempting to escape. 6. —Same—Bill of Exceptions—Practice in District Court. Upon a trial for "theft where defendant took at least one hundred exceptions during the trial, many of which were frivolous, there was no error that the court refused to suspend proceedings and permit counsel to reduce them to writing; especially as it was not shown that the court refused to allow any bill of exceptions taken during the trial and presented to him by the defendant.
49 Tex. Crim. 11Davenport v. State (1905)
The opinion states the case.
49 Tex. Crim. 12Ex Parte Kent (1905)
Habeas Corpus—Travelling Physician—Indictment—Practice. The writ of habeas corpus can not be used to try a violation, of the law as an original proceeding in the Court of Criminal Appeals, to ascertain the guilt or innocence of a party on an indictment charging him to be a travelling physician without license.
49 Tex. Crim. 13Burch v. State (1905)
The opinion states the case.
49 Tex. Crim. 15Smith v. State (1905)
1. —Carrying Pistol—Argument of Counsel—Special Charge. On trial for unlawfully carrying a pistol where a requested charge was given, directing the jury not to consider remarks made by the county attorney to punish the defendant to deter others from crime,' there was no error. 2. —Same—Argument of Counsel—Response to. Challenge in Argument. Where defendant’s counsel challenged the county attorney in strong terms to know why a certain witness was not put on the stand and to explain to the jury his absence, and the county attorney answered in response to said challenge, stating why the witness was absent, there was no error, although such practice is criticised. 3. —Same—Charge of Court—Theory of Defense. See' opinion for charge of court which was applicable to the facts of the theory of defense and as controverted by the State.
49 Tex. Crim. 18Selph v. State (1905)
1. —Theft of Horse—Evidence—Identity. Where on trial for theft of a horse, the witness described defendant sufficiently to connect him. up with a description given by other witnesses there was sufficient testimony of identity to render the same admissible before the jury. 2. —Same—Charge of Court—Explanation of Possession. Where on trial for theft of a horse, the testimony showed that defendant joined in the conversation of his codefendant in regard to the ownership of the property, and coincided with his statement and that the same were not true, there was no error because the court’s charge failed to instruct the jury to acquit if defendant was not called upon to explain his possession. 3. —Same—Charge of Court—Original Taking—Principals. Where on trial for theft of a horse, the evidence showed that the defendant was a guilty participant with another in taking the alleged stolen horse, and excludes every other theory than that they joined in such taking, and the court charged the jury that before they could convict they must find that these parties acting together as principals took the horse, and that defendant would not be guilty unless he was present and assisting in taking the horse, there was no error in the failure of the court to further charge to acquit defendant if he was not connected with the original taking. 4. —Same—Intent to Appropriate—Charge of Court. Where on trial for theft of a horse, the testimony showed that defendant and another together took the alleged stolen horse at night from a pasture, and carried him away together several hundred miles, and defendant’s codefendant offered the horse for sale, and defendant joined in the conversation with him as to the ownership and control of it, there was no error in the court failing to charge that if the jury believed that if defendant did not intend to appropriate the horse to acquit.
49 Tex. Crim. 20Paul v. State (1905)
Adultery—Insufficiency of Evidence. See opinion for evidence held to be insufficient to support a conviction for adultery on the ground that the parties were living together.
49 Tex. Crim. 21Rutherford v. State (1905)
The opinion states the case.
49 Tex. Crim. 24Hudson v. State (1905)
The State relied alone upon the testimony of the prosecutrix Myrtle Wallace, who testified in substance: .that on the 3rd of June, 1905, while traveling on the, public road in the direction of her home the defendant ran up behind her and grabbed her by the shoulders and said, “Let’s do some fuck.” That she jerked loose from him and ran out of the public road about forty yards where the defendant caught her again; that they struggled there for some time, defendant trying to…
49 Tex. Crim. 28Cooper v. State (1905)
1. —Assault with Intent to Murder—Cooling Time—Charge of Court. Where on a trial for assault with intent to murder, the evidence showed that there were two difficulties, both close together in point of time, and adequate cause and cooling time were limited in the court’s charge to the first difficulty, there was reversible error, especially where such charge also cut the jury off from the consideration of adequate cause in the second difficulty, and further prevented the jury to pass upon the question of aggravated assault viewed from the standpoint of the second difficulty. 2. —Same—Charge of Court—Manslaughter—Aggravated Assault. Upon trial for assault with intent to murder the evidence tended to show that defendant was acting in self-defense in firing the first, and perhaps the second shot, after which the prosecutor fled and defendant fired at him as he fled, the court should have charged the jury upon manslaughter as well as upon aggravated assault, and the charge which prevented the jury from considering adequate cause and cooling time with reference to subsequent facts was reversible error. 3. —Same—Self-Defense—Threatened Assault and Apparent Danger. See opinion for evidence which necessitated a charge on the law of threatened assault and apparent danger. 4. —Same—Doctrine of Retreat—Common Daw Rule. Under the law of Texas the man whose rights are attacked can stand his ground and has the legal right to do so, and the attacking party, or the one in the wrong, must do the retreating if any is -required. This is different from the common law rule.
49 Tex. Crim. 33Baughman v. State (1905)
Tried below before Hon. W. W. Moore. Appeal from a conviction for a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.
49 Tex. Crim. 35McGovern v. State (1905)
1. —local Option—Social Club—Subterfuge—Accomplice—Principal. On trial for local option where the defense interposed the charter of a social club which the evidence showed to be a mere subterfuge, and that the defendant did not personally make the sale but showed his complicity therein and that he directed another to make the sale, he was properly convicted as a principal for a violation of the local option law. 2. —Same—Principals. All parties in misdemeanors; whether accomplice or not, are principals. 3.—Same—Notice of Publication—Orders of Commissioners Court—Certificate. Where on trial for violation of the local option law the evidence showed that there was no order or decree in the minutes of the commissioners court showing that five notices of the local option election to be held in the precincts where the offense is alleged had ever been issued or posted as required by law, and there was no certificate from the county judge that the local option law had been properly published, the said law was not in legal effect, and the conviction miist be set aside.
49 Tex. Crim. 37Tracy v. State (1905)
The opinion states the case.
49 Tex. Crim. 42Whitsel v. State (1905)
Theft—Insufficiency of Evidence. See opinion for facts held to be insufficient to support a judgment of conviction in a case of theft.
49 Tex. Crim. 43Moore v. State (1905)
The opinion states the case.
49 Tex. Crim. 44Golightly v. State (1905)
The opinion states the case.
49 Tex. Crim. 47McDaniel v. State (1905)
The opinion states the case.
49 Tex. Crim. 49Heath v. State (1905)
The opinion states the case.
49 Tex. Crim. 50Wilson v. State (1905)
The main State’s witness describes the difficulty as follows: “Harrell the deceased was running or backing off while the two Wilsons were cutting at him with knives. He was backing off from them and striking with his hand to and fro, backing as fast as he could and they were cutting at him with knives.
49 Tex. Crim. 60Ex Parte Massey (1905)
Prom Hays County. Original application for habeas corpus for release from a commitment under an information charging petitioner with a violation of an Act of the Twenty-ninth Legislature, page 379, laws of 1905, with reference to soliciting orders for the sale of intoxicating liquors, etc. The opinion states the case.
49 Tex. Crim. 72Herbert v. State (1905)
The following statement taken from the brief of the State’s counsel is substantially correct: “The State’s testimony shows that on May 11, 1905, prosecutrix, aged 10 years, was going to market, and while passing the repair shop of appellant was called by him, and went in to see what he wanted, and when she got to the door he grabbed her, and carried her inside the shop, shut the door, put her on a bed, and made an attempt to penetrate her person.
49 Tex. Crim. 78Craven v. State (1905)
The dying declarations of deceased gave the following account of the homicide: “Deceased told me [witness] that he got in the wagon with defendant at the store and started off down the road, said he was going to Pyles Prairie to pick cotton, and that they had gone some distance and defendant said to him: ‘Ed, we have not been getting along very well of late, and it looks like we ought to try to do better and come to some better understanding and get along better.’ Deceased…
49 Tex. Crim. 82Coleman v. State (1905)
The opinion states the case.
49 Tex. Crim. 87Ex Parte Glass (1905)
From Smith County. Original application for habeas corpus for release from a commitment for a violation of a city ordinance.
49 Tex. Crim. 90Summers v. State (1905)
Burglary—Railroad Box-car—Attempt. It is no offense to attempt to break and enter a railroad car to commit theft, the same not having been made such or defined by the statutes.
49 Tex. Crim. 91Tally v. State (1905)
1. —Burglary—Evidence. On a trial for burglary there was no error in permitting a State’s witness to testify that about 10 o’clock on the night prior to the burglary he went to the building in question and carefully examined the lock and tried the door to see if the same was securely fastened, the court excluding his statement as to watching the house. 2. —Same—Argument of Counsel. On a trial for burglary where the argument of the district attorney was in answer to the argument of appellant’s counsel there was no error. 3. —Same—Charge of Court—Principals. On a trial for burglary, where the evidence showed that at the time of the burglary appellant’s codefendant was in the house, and appellant -was standing outside and ran away from said building as the officers approached, there was no error to charge on the law of principals. 4. —Same—Charge of Court—Principals. On trial for burglary, where there was evidence calling for a charge on principals to the effect that the defendant must be present at the time and place of the offense, and know of the unlawful intent of his confederate aiding and encouraging and advising him, or agreeing to the commission of the offense at the time, there was no error. 5. —Same—Misconduct of Jury—Beading Newspaper—Discretion of Court. On motion for new trial, where it was shown by affidavit that one of the jurors during the retirement of the jury had read in the paper that the defendant in the case on trial had been convicted at a former day of the court, and his punishment assessed at two years in the penitentiary, and that the juror urged the defendant’s conviction, but the record also showed that said juror did not make this statement until after the verdict was written, and that the court passed upon the issue of fact presented under the motion, there was no error and the verdict of the jury will not be disturbed. [Motion for rehearing overruled without written opinion.—Beporter.]
49 Tex. Crim. 93Alexander v. State (1905)
1. —Burglary—Charge of Court—Immaterial Omission. On a trial for burglary, where the charge of the. court on circumstantial evidence omitted the phrase, “and no other person,” in applying the moral certainty that the accused committed the offense, there was no error. 2. —Same—Charge of Court—Accomplice—Accessory. On a trial for burglary, where the evidence showed that the State’s witnesses merely concealed the alleged offense and falsified about knowledge thereof, it did not render them accessories or accomplices, and there was no error in the refusal of a requested charge on this phase of the case. 3. —Same—Charge of Court—Alibi. Where the general charge of the court was the proper charge on the law of alibi, there was no error in refusing a special charge thereon. 4. —Same—New Trial—Newly Discovered Evidence. On motion for new trial, where the newly discovered evidence is indefinite, and tends to show that defendant had knowledge of the same, there was no error in overruling the motion. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 96Bird v. State (1905)
1. —Burglary—Charge of Court—Fraudulent Intent. On a trial for burglary, where there was evidence that defendant had been requested by another to enter the house for the purpose of sleeping therein and without fraudulent intent, or of going into said house to get quilts or bedding to sleep thereon, it was error for the court to so frame his charge as to throw the burden upon defendant and require of him to show affirmatively that he went into said house for the sole purpose of sleeping therein, or getting quilts to do so. The State must prove beyond a reasonable doubt that the defendant entered said house with the fraudulent intent of committing theft, or else he was not guilty. 2. —Same—Want of Consent—Owner’s Consent. On a trial for burglary, where the evidence tended to show that a day before the alleged offense the owner of the house entered into a scheme with others that defendant should go into said house, the court should have charged on the question of consent by the owner, and to find defendant not guilty if such consent was given, and the owner was connected with the original design of such scheme.
49 Tex. Crim. 99Stokes v. State (1905)
The opinion states the case.
49 Tex. Crim. 100Stanford v. State (1905)
Fraudulently Disposing of Mortgaged Property—Charge of Court—limitation —Newly Discovered Evidence. Where on trial of fraudulently disposing of mortgaged property, there was sufficient evidence that the statutes of three years limitation had begun to run long before the return of the indictment, a charge of the court that if the sale occurred within three years next before finding the indictment defendant should be found guilty, using conflicting dates as to the return of the indictment, was error. The motion for new trial set up newly discovered evidence which would have clearly established limitation.
49 Tex. Crim. 102Nicholson v. State (1905)
Malicious Mischief—Circumstantial Evidence—Insufficiency of Evidence. See opinion for testimony held not to be. sufficient to sustain a conviction for wantonly killing a mule with intent to injure owner.
49 Tex. Crim. 103Crow v. State (1905)
The opinion states the case.
49 Tex. Crim. 105Williams v. State (1905)
The opinion states the case.
49 Tex. Crim. 105Hale v. State (1905)
Appeal from the County Court of Trinity. Tried below before Hon. C. H. Crow. Appeal from a conviction of unlawfully playing at a game of cards; penalty, a fine of $10.
49 Tex. Crim. 106Johnson v. State (1905)
1. —Theft of Hog—Recent Possession—Explanation—Charge of Court. On trial for -theft of a hog, where defendant testified that he was simply assisting another person in driving the hogs, without any interest in them, believing that they were this person’s property, and the State did not disprove these statements, the court should have submitted the defendant’s explanation and instructed the jury to acquit him if it was true. 2. —Same—Charge of Court—Ownership. On trial for theft of a hog, where the evidence showed that defendant never claimed any interest in the hogs in question when found in his pen, and that they were marked in a mark claimed by the person whom he was assisting in driving them; that there was a sharp question as- to whether the hogs belonged to the alleged owner or the person defendant assisted in driving them, it was error to charge the jury that if defendant claimed the hogs by mistake to acquit him.
49 Tex. Crim. 108Ex Parte Elliott and Matthews (1905)
Habeas Corpus—Local Option—Charter and City Ordinance. Where a charter of a city gave it the exclusive control and management of saloons, the sale of intoxicating liquors, etc., and thereafter by an election held in the entire county local option was adopted including the territory of said city. Held that said charter, whether granted before or after the adoption of local option, did not abrogate the right of the county to adopt the local option law. [Motion for rehearing overruled without written opinion.—Beporter.]
49 Tex. Crim. 109Bogan v. State (1905)
The opinion states the case.
49 Tex. Crim. 111Paschal v. State (1905)
Assault with Intent to Murder—Former Conviction—Doctrine of Carving. Where on trial for assault with intent to murder, the evidence showed that defendant in one transaction made an assault upon his wife by throwing an orange at her, by choking, by cutting her clothes off her person, and by drawing a stick, which was a deadly weapon, upon herand defendant interposed his plea of former conviction upon information for aggravated assault of the same transaction it was error for the court not to sustain said plea, as the State could carve but once.
49 Tex. Crim. 115Gallegos v. State (1905)
1.—Murder in' Second Degree—Corpus Delicti—Confession—Charge of Court. On a trial for murder, while the better practice would have been to have instructed the jury as to the effect of confessions, and as to the requisite proof of the corpus delicti in conjunction therewith, yet where from the evidence there did not seem to be any doubt but that deceased came to his death by some violent agency, this in conjunction with the confession of defendant was plenary proof of his guilt, and in the absence of a requested charge, there was no error in the court failing in its general charge to instruct upon this subject. ÍJ.—Same—Evidence—Confession. On a trial for murder where the testimony is with reference to the defendant’s confession, it is admissible, although it may be vague and remote. 3.—Same—Argument of Counsel—Defendant as a Witness. On a trial for murder the remarks of State’s counsel that defendant had friends, and why he did not introduce them to show his whereabouts was not an allusion to defendant’s failure to testify.
49 Tex. Crim. 117Ingram v. State (1905)
The opinion states the case.
49 Tex. Crim. 118McKay v. State (1905)
1.—Theft of Cattle—Limitation. On trial for receiving stolen cattle, where the evidence showed that the transaction occurred in the year 1899, and that the indictment was presented in the year 1903, and that more than 3 years had intervened between the commission of the offense and the filing of indictment, the prosecution was barred by limitation. 2.—Same—Indictment—Allegation that Party was Unknown to Grand Jury. Where an indictment for receiving stolen cattle alleged that the cattle were received from some one unknown to the grand jury, and the record showed that the counsel representing the State knew the name' of such party and that the grand jury must have known or could have known the said name, the conviction could not be sustained as the evidence should sustain the allegations in the indictment.
49 Tex. Crim. 121Barton v. State (1905)
1. —Murder—Charge on Accomplice’s Testimony. On a trial for murder, where the charge of the court assumed that the evidence of accomplices was true, and took from the jury the consideration of any other question than that of corroboration, and which was a charge upon the weight of the evidence, and assumed that the homicide was a crime, the same was error. 2. —Same—Declaration of Third Party—Conspiracy. On a trial for murder, it was error to admit in evidence the declarations of a third party, not made in the presence of the defendant. However, any act or declaration of the defendant either prior to or subsequent to the consummation of the conspiracy showing guilt, or any declaration in the presence of the appellant, either prior or subsequent to the crime showing guilt, were admissible.
49 Tex. Crim. 123Whitehead v. State (1905)
Tried below before Hon. J. K. P. Gillaspie. Appeal from a conviction of theft; penalty, five years imprisonment in the penitentiary. The following statement taken from the Assistant Attorney-General’s brief is substantially correct: The State’s evidence shows that appellant was in Mrs. Fry’s store when the complaining witness, a Mexican woman, was handed $54 by Mrs. Fry.
49 Tex. Crim. 125Reum v. State (1905)
The opinion states the case. The court in its general charge instructed the jury as follows: 5— “By the word abortion is meant the act of miscarriage or producing a child from the mother before the natural time, with premeditated or intentional design to prevent the birth of a natural child. 6— “By the term producing a child before the natural time is meant, at any time from gestation or the moment of pregnancy, to the time, when the foetus is -perfectly formed. 7— “And to…
49 Tex. Crim. 131Price v. State (1905)
1. —Theft by False Pretences—Indictment—Statutes Construed. Where an indictment, under article 86, Penal Code, as to theft by false pretenses and fraudulent representation, failed to allege the appropriation of the property after obtaining it by virtue of such false pretenses, it is defective. Under article 877, Penal Code, the goods are obtained by contract or bailment, and the fraudulent intent arises subsequent to obtaining the goods, whereas under article 861, Penal Code, the fraudulent intent must exist at the time of obtaining the property and the representation must be false. Appropriation is necessary under both articles. 2. —Same—Indictment—Theft—Swindling—Bobbery. Where in an indictment for theft by'means of false pretenses, threats, etc., the allegations showed that the prosecutor intended to part with the title to the property, by reason of the false representation and threats made to him, it was defective, and the offense would be swindling or possibly robbery.
49 Tex. Crim. 133Caddell v. State (1905)
1.—Burglary—Want of Consent. On a trial for burglary, the ownership of the house alleged to have been burglarized, as well as the property, was alleged to be in two different persons; there was nothing in the record to show that one of the owners was asked while on the witness stand in regard to his want of consent, and he did not testify in regard to it. Held that want of consent had not been proven, as this cannot be inferred, especially where this fact could have been proven by the witness on the stand. Z.—Same—Evidence—Hearsay. On trial for burglary the fact that a small plug of tobacco had been found, but not indentified as the tobacco taken from the burglarized house was hearsay testimony. 3.—Same—Hearsay—Evidence. On a trial for burglary, evidence that several pounds of tobacco was found in the defendant’s bed, between the mattresses, not identified in any way to connect this tobacco with that which Avas stolen, Avas hearsay evidence and inadmissible. Brooks, Judge, dissenting.
49 Tex. Crim. 135Lucas v. State (1905)
The opinion states the case.
49 Tex. Crim. 139Willis v. State (1905)
1. —Manslaughter—Refreshing Recollection of Witness—Contradicting Own Witness. On a trial for murder, there was no error to refuse defendant to contradict his own witness by reading before the jury his testimony on a previous trial; the witness simply failing to recollect a' fact testified to on a previous trial, and the court having permitted counsel for defendant to question the witness in the presence of the jury what his present recollection was as to the point at issue. 2. —Same—Evidence—Theory of Defense. On trial for murder, where defendant had introduced in evidence the written statement of his sister as to mistreatment of her by deceased, there was no error to exclude testimony of other acts and statements made by her of such mistreatment which were not contained in her said written statement, and which were offered by defendant to corroborate the same; it not having been shown that defendant ever knew of said matter offered as testimony. 3. —Same—Contradiction of Witness—Evidence. On a trial for murder, where defendant’s father testified that he knew nothing of an attempt at reconciliation between deceased and his wife or the exchange of letters between them, and denied that one M. handed him a letter written by deceased and addressed to the wife of deceased, there was no error in permitting the State to contradict said statement by said M. who testified that he did hand such letter to the witness. 4. —Same—Bill of Exceptions. On trial for murder, where the bill of exceptions taken to the admission of the evidence assigns no reason why the same is objectionable, it cannot be considered on appeal. 5. —Same—Dying Declaration—Bill of Exceptions. Where on trial for murder, the bill of exceptions taken to the introduction of • testimony with reference to declarations by the deceased, does not negative the idea that he was then conscious of approaching death and had no hope of recovering, there was no error. G.—Same—Credibility of Witness. On a trial for murder there was no error for the State to show that one of appellant’s witnesses had been charged with the offense of forgery. 7.—Same—Remarks of the Judge—Practice. On a trial for murder, there was no error of the trial judge to state that it was competent for the State to employ private counsel, the court apprehending that there was an attempt to bring said counsel into disrepute with the jury by allusions made by defendant’s counsel. 8. —Same—Bill of Exceptions—Evidence. Where on a trial for murder, the bill of exceptions to the introduction of testimony with reference to a difficulty between defendant’s brother and the deceased is not sufficiently full so as to advise the court of the error complained of, it could not be considered on appeal. 9. —Same—Evidence—Book Kept by Grand Jury—Bill of Exceptions. On trial for murder, where the question was whether the grand-jury book was accurately kept, and the question was not directed to some witness’ testimony, or assailed as to this, and the bill did not show in what respect testimony was not accurately taken down in said book or how it varied upon the particular point, it could not be considered on appeal. 10. —Same—Conclusion of Witness—Evidence. On trial for murder, there was no error in excluding testimony conveying the opinion or conclusions of witness as to who was doing the shooting at the time of the homicide. 11. —Same—Photograph—Evidence. On a trial for murder, there was no error in excluding a picture or photograph of the sister of defendant and wife of the deceased, offered for the purpose of showing the physical condition of said female at or before her marriage with deceased, to wit: that she was healthy, cheerful, innocent and possessed of great beauty; other evidence showing that after five months of married life with deceased, she became a physical wreck by reason of his maltreatment and excesses; and that it was impossible to correctly describe the looks of said female to the extent as shown by said picture; and that appellant had been accustomed to visit this picture and brood over it. See opinion as to rule for the introduction of photograph. 12. —Same—Manslaughter—Self-Defense. See opinion for charges on manslaughter and self-defense held to be applicable to the evidence in the case and presenting no reversible error, and did not require defendant’s requested charges on these subjects. 13. —Same—Charge of Court—Means Used—Gun—Pistol. On a trial for murder, where the proof is absolute and beyond controversy that the buck shot fired from the shot gun by defendant inflicted wounds upon deceased which were necessarily fatal upon him, and his cousin, and the evidence also showed that the latter two were prone on the ground when defendant seized the pistol of deceased and fired into him and his cousin; and the firing was so consecutive and so rapid, as to both shot gun and pistol, as to form a continuous transaction, there was no error, although not necessary, for the court to charge on the legal effect of the gun shots and the pistol shots separately.
49 Tex. Crim. 150Duncan v. State (1905)
The opinion states the case.
49 Tex. Crim. 154Tompkins v. State (1905)
The opinion states the case.
49 Tex. Crim. 156Green v. State (1905)
The opinion states the case.
49 Tex. Crim. 157Knezek v. State (1905)
Tried below before Hon. M. Kennon. Appeal from a conviction of passing a forged instrument; penalty, two years imprisonment in the penitentiary.
49 Tex. Crim. 159Butler v. State (1905)
The opinion states the case.
49 Tex. Crim. 162Hambright v. State (1905)
1. —Perjury—Charge of Court—Harmless Error. . Where on trial for perjury, the court’s charge, although subject to criticism, was given in favor of defendant authorizing the jury to acquit him on the state of facts therein presented, the error, if any, was harmless. 2. —Same—Charge of Court—Assignment of Perjury—Particular Place Where Perjury Occurred—Variance. On a trial for perjury, the assignment upon which the case was tried appeared to have been based upon a written statement made by defendant before the grand jury, and there was no question as to what this statement was; and where the contention of the defense was thaf the questions specially asked the defendant before the grand jury related to a game of cards on the date mentioned in Durham’s pasture, and that none of the witnesses on the trial of defendant showed a game played in Durham’s pasture, but that the only testimony adduced on the trial related to a game played in Graves’ pasture. Held that the evidence showing that both of these places were situated in the county where the alleged perjury was charged, that it was not necessary for the State to prove a game of gards was played in Durham’s pasture, it not having so alleged in the indictment, but that it was entirely competent for the State to call defendant’s attention to any particular place in said county and inquire in regard thereto; the defendant having denied in his testimony before the grand jury that he saw any game played in the county at all. See opinion for charge of court held proper. 3. —Same—Evidence—Falsity of Statement. On a trial for perjury it was only necessary to prove that the defendant swore before the grand jury to the matters alleged, by one witness, and where this was done and the falsity of his said testimony before the grand jury was proven by a number of witnesses, the evidence is sufficient to sustain the conviction.
49 Tex. Crim. 165Bradshaw v. State (1905)
Rape—Corpus Delicti—Confession. On trial for rape of a child under the age of 15 years, where the corpus delicti was proven, a confession of the defendant is sufficient to sustain a conviction; especially where other evidence supports the confession. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 166Bethune v. State (1905)
The opinion states the case.
49 Tex. Crim. 170Wilkerson v. State (1905)
According to the confession of the defendant he shot his wife several days previous to the arrest. He also said that she was leaving bim to separate from him at the time he shot her, saying that she would not live with him any more, etc. That when she was going down to her aunt he picked up his gun, followed her and a short distance from the house shot her.
49 Tex. Crim. 172Fewox v. State (1905)
1. —Assault with Intent to Commit Rape—Charge of Court. On trial for assault with intent to commit rape, it was error to charge that the injury intended may be either bodily pain, constraint, or sense of shame, or other disagreeable emotion of the mind. 2. —Same—Aggravated Assault—Force. On a trial for assault to commit rape, where the evidence showed that defendant did not use all the force necessary to overcome resistance in the assault, the court should have submitted the issue of aggravated assault.
49 Tex. Crim. 173Ray v. State (1905)
The opinion states the case.
49 Tex. Crim. 174Casey v. State (1905)
The following statement taken from defendant’s brief is substantially correct: The testimony showed that for some days prior to the killing the deceased had been mad at the appellant and would not speak to him, and that on the day before the homicide the deceased got mad at the appellant for not going and helping him fix a fence and on the night of the killing when spoken to by the appellant he was angry and spoke short to him, and when some words ensued between them he…
49 Tex. Crim. 177Ex Parte Henson (1905)
From Hunt County. Original application for habeas corpus for release from arrest under a city ordinance.
49 Tex. Crim. 180Walker v. State (1905)
The opinion states the case.
49 Tex. Crim. 185Goodman v. State (1905)
1. —Manslaughter—Charge of Court—Adequate Cause. On trial for murder, where there was some evidence with reference to the conduct of deceased towards the wife and sister of defendant reflecting upon said females, there was no error in the court’s charge to mention as adequate cause such conduct of deceased towards the female relatives of defendant, and such charge was favorable to and for the benefit of defendant. 2. —Same—Charge of Court—Adequate Cause—Personal Conflict—Harmless Error- On a trial for murder, where the court charged that it was adequate cause to reduce the homicide to manslaughter, if the evidence showed that there was a serious personal conflict by which great injury was inflicted upon the person of defendant by deceased with a knife, etc., but the record showed that there was only a slight wound inflicted by deceased upon the defendant. Held while such charge was not authorized, yet in connection with the previous charge of the court, and in as much as it enlarged his right of defense of manslaughter, the error was harmless. 3. —Same—Charge of Court—Manslaughter—Adequate Cause. Where on trial for murder, there was evidence tending to show that deceased committed an assault and battery upon defendant inflicting a slight wound which may have caused pain or bloodshed, and that "defendant charged deceased with theft of money from him, etc., the court properly charged that all these matters were adequate causes to reduce the homicide to manslaughter, if all or any portion of the same were true and the jury believed defendant’s passion was thereby aroused so as to render his mind incapable of cool reflection, provided he was not acting in self-defense. 4. —Same—Charge of Court—Deadly Weapon of Deceased. On a trial for murder, where the evidence showed that the size or character of the knife which deceased used is not shown, and that the wound inflicted thereby on defendant was simply described by looking at it, and not by actual probing, and seemed to be about one-fourth of an inch long, to a quarter or a half inch deep, there was no error in the court failing to instruct the jury that if they believed that deceased assaulted defendant with a knife and the same was a deadly weapon that the law presumed the intent of deceased to kill defendant; or to leave this issue to the jury. 5. —Same—Charge of Court—Superiority of Strength. On a trial for murder, there was no error in not charging article 677, Penal Code, with reference to superiority of strength, violent assault, etc., as there was no evidence to support it, and it would have been calculated to embarrass defendant’s right under the charge of self-defense. 6. —Same—Charge of Court—Self-Defense—Threats. On trial for murder, where the court first defined in his charge the law of self-defense and applied it to the facts, as viewed from the standpoint of defendant, and also charged on self-defense coupled with threats, there was no error. 7. —Same—Provoking a Difficulty—Harmless Error. On a trial for murder, where the court gave an adequate charge on self-defense without "regard to appellant having armed himself, and instructed the jury that if he was attacked by deceased in such manner as from his standpoint endangered his life or person he would have the right to kill deceased, and safeguard appellant’s rights without regard to the purpose for which he may have armed himself, etc., there was no error in charging on provoking the difficulty as the evidence amply warranted such a charge. See opinion, for court’s charge and requested charges submitted upon this phase of the case. 8. —Same—Misconduct of Jury. Where on motion for new trial, the complaining affidavit of two jurors as to misconduct in the jury room, were denied by the affidavits of nine of the jurors, and that they did not agree beforehand to be bound by lot, and the court overruled the motion predicating a new trial on this ground, there was no error. 9. —Same—Remarks of Judge. Where on a motion for new trial which was then pending, the trial judge lectured the jury commissioners in regard to their duties and that they should not select men who would make affidavit impeaching their verdict, which matter occurred by inadvertence, and the record showed that the jurors engaged in the trial preceding the motion pending had previously made affidavits for the State contravening the affidavit of two of their fellows, and that such lecture in their presence could not have operated to intimidate them, there was no error.
49 Tex. Crim. 192Richard v. State (1905)
The opinion states the case.
49 Tex. Crim. 193Wyatt v. State (1906)
1,—local Option—Newly Discovered Evidence—Alibi. Where the motion for new trial shows that if the facts stated are true they were well known to defendant before the trial, and that no effort was made to secure the witness to prove the alleged alibi, there was no error in overruling the motion. 2.—Same—Absence of Defendant—When Verdict is Returned—Statutes Construed. In felony cases the defendant must be present when the verdict is returned, whereas in a misdemeanor it is not necessary. Articles 633 and 749, Code Criminal Procedure, harmonized.
49 Tex. Crim. 195Anderson v. State (1906)
The opinion states the case.
49 Tex. Crim. 196Bryan v. State (1906)
Theft of Cattle—Special Ownership. Upon trial for theft of cattle, where the count in the indictment upon which defendant was convicted charged the ownership of the alleged stolen cattle in A., and the proof showed that said cattle belonged to E., and were never reduced to possession in A. absolutely, but only conditionally upon his securing or finding them, which he never did. Held that A. was .not a special owner within the contemplation of the statutes.
49 Tex. Crim. 197Bourland v. State (1906)
The opinion states the case.
49 Tex. Crim. 199Sims v. State (1906)
Assault to Rape—Plea Must be Entered—Affidavit. Upon a trial for assault to rape, where it appeared from the record and affidavit that defendant was not called upon to plead to the indictment, and that no plea was entered and the case was tried without it, there was error, although’ defendant and his counsel remained silent.
49 Tex. Crim. 200Bryan v. State (1906)
The opinion states the case.
49 Tex. Crim. 202Tutt v. State (1906)
Theft From the Person—Robbery—Misconduct of Jury—Verdict. Where upon an appeal from a conviction of robbery the record showed that while the jury were considering their verdict and before they had agreed thereon, one of the jurors remarked in the presence of his fellows that appellant’s co-defendant had been convicted and given a term of ten years in the penitentiary and that the jury should not give defendant a less punishment; and that the jury afterwards arrived at a verdict of ten years, the conviction can not be sustained. Following: McWilliams v. State, 32 Texas Grim. Rep., 269.
49 Tex. Crim. 203Ex Parte Garrett (1906)
Local Option—Habeas Corpus—Reduction of Bail—Appeal. Where upon habeas corpus it was shown that relator was charged by indictment in seven cases with violating the local option law, and bail fixed at $400 in each case, which the court reduced in one case to $300, and the remaining six to $200 each, and it was made to appear on appeal that appellant was unable to give the amount fixed but could give bond in about $100 in each case, such bail was reduced accordingly.
49 Tex. Crim. 204Green v. State (1906)
Tried below before Hon. G. P. Webb. Appeal from a conviction of a violation of the local option law; penalty, a fine of $35 and twenty days confinement in the county jail.
49 Tex. Crim. 205Bird v. State (1906)
1.—local Option—Transfer of Indictment—Jurisdiction—Motion for New Trial. Where upon appeal from a conviction of a violation of the local option law, the record by motion for new trial, disclosed that there was no order entered in the district court where the indictment was found, transferring the same to the county court for trial, the latter had no jurisdiction and the case must be reversed. Following: Austin v. State, 38 Texas Grim. Rep., 8. 2.—Same—Insufficiency of Evidence—Non-Intoxicants. Where upon trial for a violation of the local option law, the evidence showed that the prosecuting witnesses went into defendant’s place of business and called for two bottles, not stating what they should contain, paying for and then drinking the same, stating that they felt no effect from it and they did not know what it tasted like, and that the bottles looked like beer bottles and they thought it was beer; and defendant’s testimony was that he did not sell any beer to these parties and that he did not keep any, but sold them a non-intoxicant which looked like beer, tasted like it, and was put up in beer bottles, the evidence was not sufficient to sustain a conviction.
49 Tex. Crim. 207Young v. State (1906)
1. —Murder in First Degree—Husband and Wife—Void Marriage—Testimony Before Judge. Upon a trial for murder where upon request of defendant’s counsel the jury was retired and the judge presiding passed upon the admissibility of the testimony of a State’s witness, who claimed to” be defendant’s wife, and it developed that defendant had never been divorced from his first wife to whom he was legally married, there was no error in the court hearing the testimony of said first wife as to her marriage to the defendant; besides, if error, said fact was established by other testimony, and all of said testimony on this point was never introduced before the jury, but was admitted before the judge in absence of the jury; and there was no error in afterwards admitting to the jury the testimony of said witness with whom the defendant was living at the time of the homicide and who was not his wife in law. Following Moore v. State, 67 Law. Rep. Ann., 499. 2. —Same—Illegal Marriage—Confidential Relationship. On a trial for murder where the supposed second wife of defendant stated on cross-examination that during the commission of the offense she believed herself the wife of the defendant, that they lived and cohabited together and that she had a child by him, and that their relations were of that confidential nature as exist between man and wife and that they were both charged with the offense. Held that her marriage with the defendant being illegal it- did not matter however confidential the relationship may have been between them, or that she may have regarded him as her husband; this could not prevent the State to compel her to testify against the defendant. 3. —Same—Bill of Exceptions—Evidence. Where the bill of exceptions taken to testimony in a trial for murder did not state what was said or took place in a county outside of that of the prosecution, except that something unusual occurred, the same is defective and can not be considered. 4. —Same—Accomplice—Evidence. Where other evidence in a case of murder decided the issue of whether or not the State’s witness was an accomplice of defendant, there was no error in admitting her testimony, that in carrying things to defendant with which he whipped deceased she had no desire or intent to have the latter injured, that she did so because she was afraid of defendant. 5. —Same—Immaterial Testimony. Upon a .trial for murder there was no error in excluding testimony to the effect that deceased, who had been cruelly whipped to death by defendant, said to the witness that her mother beat her over the head with a stick of wood or kept a quirt with a rod of iron in the end of it for the purpose of whipping deceased. 6. —Same—Acts and Threats of Third Party. Upon a trial for murder where neither the bill of exceptions nor the record suggested even remotely that the mother of the deceased had anything to do with the killing, there was no error in excluding testimony that the mother of deceased long prior to the homicide had said that when she got deceased off in the country that God damn her she was going to kill her. 7. —Same—Means Used in Perpetrating Crime—Evidence. Where upon a trial for murder the evidence showed that defendant chained deceased to a tree and beat her, and this chain was identified as the one introduced in evidence, there was no error. 8. —Same—Photographs—Bill of Exceptions. Where upon, trial for murder the bill of exceptions to the introduction of certain photographs taken of the deceased after her death did not show that the same were not correct photographs, except defendant’s objections which were not certified by the court as facts that they were .not true representations, there was no error. 9. —Same—Practice—Judge—Witness. Where upon trial for murder the trial judge called a State’s witness who had left the stand to the bench and had a conversation with him in the presence 1 but not in the hearing of the jury, there was no error. 10. —Same—Practice—Witness—Judge—Defendant’s Counsel. Where upon trial for murder after defendant had introduced all his witnesses, he requested the sheriff to call as a witness a certain physician whom the court had excused until the following morning, whereupon the court directed the State to open the argument, and defendant’s counsel was told that he could use this witness or any other before beginning his argument, and the witness was tendered him immediately after the State had opened his argument and before defendant’s counsel had made his argument; and this same witness, who was temporarily excused on account of the desperate illness of his wife, was several times during the progress of the trial at such times when he appeared in the courthouse tendéred to defendant to be used as a witness. Held no error. 11. —Same—Acts and Conduct of Spectators—Bill of Exceptions. Where after trial for murder the defendant objected in his motion for new trial to the conduct of spectators during the trial, but did not show in his bill that they interfered in the trial of his case, there was no error. 12. —Same—Argument of Counsel—Bill of Exceptions. Where upon appeal of a conviction for murder, there was no bill of exceptions to the argument of State’s counsel to which appellant complained, the point could not be considered. 13. —Same—Charge of Court—Motive—Carnal Intercourse. Where upon a trial for murder there was evidence that defendant beat, bruised and ultimately killed deceased and in the course of his beatings had carnal intercourse with her on one occasion, there was no error in the charge submitting to the jury this phase of the case and limiting the same to the motive with which defendant committed the offense of murder. Besides defendant could not complain since he did not object to this testimony. 14. —Same—Death Penalty. Upon an appeal from a conviction of murder assessing the death penalty, where the record showed an unparalleled ferocity and brutality in the commission of the offense, and where the court had charged on every legitimate phase raised by the evidence the judgment will not be disturbed. [Motion for rehearing overruled without written opinion.—Keporter.]
49 Tex. Crim. 215Jackson v. State (1906)
The opinion states the case.
49 Tex. Crim. 219Neill v. State (1906)
Tried below before Hon. O. L. Lockett. Appeal from a conviction of aggravated assault; penalty, a fine of $800. The testimony in the case is very voluminous and obscene, and the issue between the State and the defendant ivas narrmved down as to whether defendant used undue force or was merely attempting to have sexual intercourse with the prosecutrix with her consent.
49 Tex. Crim. 224Sprinkle v. State (1906)
1. —Assault with Intent to Murder—Charge of Court—Self-defense. Where upon trial for assault with intent to murder the court charged that the defendant’s right of selNdefense was authorized only against an unlawful violent attack, it was possibly too restrictive as the defendant had the right to defend himself against an assault less than a violent attack, however the general charge with reference to defendant’s right of self-defense may have cured this defect. 2. —Same—Right of Self-defense—Provoking Difficulty. Where a defendant is entitled to a charge upon self-defense the same should be free and untrammeled from a charge limiting said right, and blending it with a charge on provoking a difficulty. 3. —Same—Charge of Court—Provoking Difficulty—Singling out Testimony— Weight of Evidence—Intent. Where upon a trial for assault with intent to murder it appeared from the testimony that there was some ill feeling between the parties, and that defendant approached prosecutor and insisted on his going with him which the latter declined to do, and thereupon the difficulty arose, prosecutor striking appellant and the latter cutting him subsequently, a charge on provoking the difficulty was not authorized, and was further erroneous in failing to predicate the provocation on the intent of defendant, and for singling out a fact that was ambiguous.
49 Tex. Crim. 226Sweeney v. State (1906)
Tried below before Hon. G. P. Webb. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.
49 Tex. Crim. 228McCrear v. State (1906)
Tried below before Hon. N. J. Smith. Appeal from a conviction of simple assault and battery; penalty, a fine of $5. Defendant was the husband of prosecuting witness who was not placed on the witness stand.
49 Tex. Crim. 229Hackleman v. State (1906)
Tried below before Hon. G. P. Webb. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.
49 Tex. Crim. 229Aikins v. State (1906)
Burglary—Age of Defendant—Reformatory—Statutes Construed. Where upon trial for burglary the evidence showed that the defendant was more than 16 years of age at the time of his trial, there was no error in assessing his punishment by imprisonment in the penitentiary. Article 1145, Code Criminal Procédure, requires that defendant be under 16 years of age at the time of the trial, and not at the date of the offense, in order to be sent to the reformatory.
49 Tex. Crim. 231Ex Parte Spears (1906)
Carrying Pistol—Habeas Corpus—Discharge of Pine—Statutes Construed. Upon trial of habeas corpus upon a showing that relator was convicted for unlawfully carrying a pistol, and that the fine and cost amounted to $121.75, that being unable to pay the same he was put to work for the benefit of the county for about sixty days, and then placed in jail after resorting to the writ of habeas corpus for one month and a half. Held that under article 856, Code Criminal Procedure, allowing $3 per day, bis fine and cost was discharged.
49 Tex. Crim. 232Ex Parte Harris (1906)
The opinion states the case.
49 Tex. Crim. 233Harris v. State (1906)
Local Option—Charge of Court—Agency. Upon a trial for a violation of the local option law where the theory of the State was that the defendant sold the, whisky to the prosecutor, and the defendant’s theory was that he was acting as the agent of prosecutor and bought the whisky from S. for the prosecutor, it was error to charge that if defendant was the agent of S. in selling the whisky to convict.
49 Tex. Crim. 234Butler v. State (1906)
The opinion states the case.
49 Tex. Crim. 235Garrett v. State (1906)
1. —Disturbing the peace—Evidence. Where upon a trial for disturbing the peace, the defendant claimed that he was drunk at the time and thought that he was at a different house than the one in which he disturbed the inmates, there was no error in admitting the testimony for the State that defendant came upon the gallery of the prosecutor and disturbed his wife and children in his absence by rattling the door, undertaking to get into the house, and stating that he desired to get in and kill everyone of them. 2. —Same—Confession—Warning of Defendant. Where upon trial for disturbing the peace, the warning of the officer upon which defendant’s confession was predicated, was in the usual form, with the exception of the use of the word might instead of would—the officer telling defendant that any statement that he might make might be used against him, but not for him, there was no error, especially as the confession was beneficial to the defendant. 3. —Same—Requested Charge Refused—Mistake of Fact. On a trial for disturbing the peace, where the defendant’s theory was a mistake, in going to the house in which he disturbed the inmates, his intentions being to go to another house upon a peaceful errand, there was no error in refusing defendant’s special charge that if he went to the house in which he disturbed the inmates by the use of loud and vociferous language by mistake, thinking it was the house of another, and that such conduct on his part would not have been reasonably calculated to disturb the inhabitants of said last named house, to acquit; and it would make no difference, if the disturbance in fact took place, at what house he thought it was. 4.—Same—Charge Refused—Circumstantial Evidence. Where upon a trial for disturbing the peace, the testimony of the disturbance by the defendant was direct and positive, and he was arrested at the house, and admitted his presence and that he was the party who did the talking, but claimed it was not of such character as would disturb; there was no error in refusing to submit a charge on circumstantial evidence.
49 Tex. Crim. 238Green v. State (1906)
1. —Burglary—Evidence—Hearsay—Want of Conspiracy. Upon a trial for burglary it was error to admit in evidence the declarations of third parties with reference to the burglary and made in the absence of the defendant, no' conspiracy, having been shown. 2. —Same—Impeachment—Corroboration. On a trial for burglary where an accomplice testified on cross-examination by the defendant that he had not been promised immunity, and there was no effort on the part of the defense to contradict this in any way, it was error to admit testimony on the part of the State in corroboration of the accomplice’s testimony that he had made similar statements to the' grand jury and district attorney. • __ 3. —Same—Opinion of Witness—Evidence. Upon trial for burglary it was error to admit the testimony of a State’s witness that according to his impression and habits he closed the door of the burglarized house as he started away. 4. —Same—Accomplice—Want of Corroboration—Breaking. Where upon trial for burglary the evidence did not show, except by the accomplice, that there was any breaking or burglarious entry of the house alleged to have been burglarized, or that the property was inside the house at the time it was taken, the evidence was not sufficient to sustain a conviction of burglary.
49 Tex. Crim. 241Swalm v. State (1906)
Local Option.—Other Crimes. On a trial for a violation of the local option law where the evidence did not show whether the purchase was made from the defendant in person; where there was no connection shown between the transactions for which defendant was being tried and those testified to by the State’s witness, and which were at different times and places, nor whether the liquor sold at the time alleged was of the same character as that to which the witness testified, there was error in admitting testimony of this character.
49 Tex. Crim. 242Reese v. State (1906)
The opinion states the case.
49 Tex. Crim. 244Short v. State (1906)
The opinion states the case.
49 Tex. Crim. 246Davis v. State (1906)
The opinion states the case.
49 Tex. Crim. 247Davis v. State (1906)
The opinion states the case.
49 Tex. Crim. 248Jackson v. State (1906)
1. —local Option—Order for Express Package—Books as Evidence. Upon a trial for a violation of the local option law where the evidence showed that the whisky was delivered upon an order upon the express office, and the express agent had no recollection of the transaction even after looking at his books, there was no error in introducing the books in evidence that the order was presented and the whisky received, it having been shown that the books were correctly kept. 2. —Same—Sufficiency of Evidence—Order for C. 0. D. Express Package. Where upon trial for violation of the local option law the evidence showed that defendant gave the prosecutor an order for a o. o. d. express package held by the express company, and the prosecutor presented the order, paid the money due thereon and obtained four quarts of whisky, the conviction was sustained. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 249Dean v. State (1906)
Appeal from the County Court of Hill. Tried below before Hon. N. J. .Smith. Appeal from a conviction of selling liquor to minor; penalty, a fine of $35.
49 Tex. Crim. 250Johnson, Jr. v. State (1906)
The opinion states the case.
49 Tex. Crim. 253Sexton v. State (1906)
The State’s ease showed that the alleged stolen horses and mules were taken from the pasture of a Mrs. Barnes, where the owner, W. D. Payne, had left them, and where he looked after them.
49 Tex. Crim. 255Mickey v. State (1906)
The opinion states the case.
49 Tex. Crim. 256Coons v. State (1906)
Tried below before Hon. J. D. Goldsmith. Appeal from a conviction of adultery; penalty, a fine of $100. The indictment charged defendant with unlawfully living together and having carnal intercourse with his paramour, he being a married man; and also unlawfully having habitual carnal intercourse without living together with said woman.
49 Tex. Crim. 259Cowan v. State (1906)
The opinion states the case.
49 Tex. Crim. 260Waggoner v. State (1906)
Gaming—Private Residence—Banking Game. Where upon trial for betting at a game, for permitting a game to be played upon defendant’s premises then and there a public place, etc.; where the evidence showed that defendant occupied the house where the gaming was alleged to have taken place as a private residence, and that a good deal of playing with dice took place there, and that the game was a banking game, a conviction could not be sustained, as he was not charged with exhibiting a banking game.
49 Tex. Crim. 261Randell v. State (1906)
Tried below before Hon. G. P. Webb. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.
49 Tex. Crim. 264Leach v. State (1906)
The opinion states the case.
49 Tex. Crim. 267Givens v. State (1906)
Appeal from the County Court of Grayson. Tried below before Hon. G. P. Webb. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and forty days confinement in the county jail. The opinion states the case.
49 Tex. Crim. 269Henderson v. State (1906)
Tried below before Hon. J. D. Goldsmith. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty daj's imprisonment in the county jail. The principal State’s witness testified that defendant’s place of business was over a billiard room, and there was a stair-way leading up the back way; and there was a bar up there.
49 Tex. Crim. 273Haskell v. State (1906)
Local Option—Certiorari—Statement of Facts—Approval of Judge. Where after conviction for violating the local option law, upon appeal, the appellant filed a motion for a writ of certiorari to bring forward the statement of facts and include same in transcript, the record showed that appellant’s counsel filed said statement of facts in the court below without the approval of the county judge, under the impression that the latter had signed it. Held that the record shows negligence on the part of appellant’s counsel and the writ was denied.
49 Tex. Crim. 274Marks v. State (1906)
Local Option—Hearsay Evidence. Upon a trial for a violation of the local option law where the evidence showed that the prosecutor was seen coming out of defendant’s store, and then had a conversation with another State’s witness, who asked him what he did with the whisky he got, and that thereupon the witness got the whisky, etc., all of which was in the absence of defendant, the same was hearsay and inadmissible.
49 Tex. Crim. 275Gilford v. State (1906)
The opinion states the case.
49 Tex. Crim. 279Byrd v. State (1906)
1. —Theft of Horses—Charge of Court—Contemporaneous Taking. Where upon trial for theft of horses the evidence showed the theft of other animals than those alleged in the indictment, and that the transaction was contemporaneous, there was no error in the court’s charge that the jury could only consider such testimony in order to establish the identity of the transaction, or they could use the same in developing the res gestee, and to aid in proving the guilt of the accused where circumstances connected him with the offense. 2. —Same—Possession—Ownership. Where upon trial for theft of horses the evidence showed that they were placed in the pasture of B. under a simple contract of pasturage by P., the owner, who retained control over the same, the issue of possession in B. was not raised. 3. —Same—Corroboration of accomplice—Sufficiency of Evidence. Where upon trial for theft of horses the evidence of corroboration of defendant’s accomplices showed that he assisted in loading the horses on the night of the alleged theft, the same was sufficient. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 281Renow v. State (1906)
The opinion states the case.
49 Tex. Crim. 285Underwood v. State (1906)
Theft—Swindling. Where the defendant was convicted of theft and the evidence showed that defendant informed prosecutor that there were certain cases pending against him, and that if he would give defendant $20 he would get them dismissed; and that the prosecutor intended to part with the money at the time he gave it to defendant, and that the statement of defendant as to the pending cases was false, the same makes out a case of swindling and not theft, and did not sustain a conviction of the latter offense. Distinguishing Lovell v. State, 12 Texas Gt. Rep., 914.
49 Tex. Crim. 286McNeely v. State (1906)
1. —Local Option—Evidence—Opinion of Witness. Where upon a trial for a violation of the local option law it became a material fact whether a package taken from the express office contained whisky, and there was no other proof as to what said package contained, the admission of testimony of a witness that he did not know what it contained, but that it was his opinion that it contained whisky, should have been excluded upon objection made by defendant. 2. —Same—Ignorance of the Law—Evidence. On a trial for a violation of the local option law there was no error to exclude the testimony offered by defendant that he was told by others that the only way to get the package out of the express office was to get an- order for it, unless he simply furnished the money to the party to whom he gave the order to pay the same out for defendant.
49 Tex. Crim. 288McRoberts v. State (1906)
Tried below before Hon. Sil Stark. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. Remarks of the judge to the jury were as follows: “l do not think the evidence of intention and good faith and as to his knowledge of whether or not it would intoxicate makes any difference and was inadmissible,” to which the counsel for defendant objected. The opinion states the case.
49 Tex. Crim. 290Harvard v. State (1906)
Theft of Mule—Original Taking—Insufficiency of Evidence. Where upon trial for theft of a mule the evidence showed that the animal had come in possession of defendant’s father either by theft or as an estray, and that it was sold after the father’s death, and that in either ease the defendant had no connection with the original taking, the evidence was not sufficient to sustain a conviction.
49 Tex. Crim. 292Ables v. State (1906)
The opinion states the case.
49 Tex. Crim. 293Weatherford v. State (1906)
1. —Defacing Public Building—Bill of Exceptions by Bystanders—Statutes Construed. Where a bill of exceptions which was attempted to be proved up by bystanders, failed to show that it had been presented to the trial judge and by him acted upon in any way or refused, and the affidavit simply stated that the matters occurred as stated in the bill, the same fails to bring itself within the rule laid down in the statutes and authorities. 2. —Same—Insufficiency of Evidence. Upon a trial for defacing a school-house, alleged to be a public building, where the testimony showed that the injury occurred at night and that defendant and another passed along the road that night near the building, and that two horses had been hitched to a post near there, but that the horse tracks were not shown to have corresponded with the tracks of the horses ridden by defendant and his companion, and the defendant denied the charge, and that they only rode by the building, the same was not sufficient to sustain a conviction.
49 Tex. Crim. 294Bennett v. State (1906)
The opinion states the case.
49 Tex. Crim. 295Craig v. State (1906)
Sunday Law—Plea of Former Conviction. " If defendant had filed a plea of former conviction showing that another person had been convicted for the same offense, the latter could not have operated in favor of defendant; besides this matter was brought up in a motion to quash the information and could not be considered in that form.
49 Tex. Crim. 296Brewin v. State (1906)
1. —Theft From the Person—Indictment. Where the indictment alleged that the money stolen was “twenty-seven dollars in money which passed current as money of the United States of America of the value of twenty-seven dollars” the description of the money was sufficient. 2. —Same—Charge of Court—Definition of Offense—Application to Facts—Sudden Taking. Where iij a prosecution for theft from the person, the court, in his general definition of the offense, charged the part of the statute including the second clause thereof with reference to sudden taking, but did not include this clause in the application of the law to the facts, there was no error.
49 Tex. Crim. 297O'Neal v. State (1906)
Tried below before Hon. G. P. Webb. Appeal from a conviction of a violation of the local option law; penalty, a fine of $75 and fifty days confinement in the county jail.
49 Tex. Crim. 299Jones v. State (1906)
local Option—Statement of Facts—Certiorari—Affidavit. Where upon appeal from a judgment of conviction of violating the local option law the record contained a motion for writ of certiorari predicated upon an affidavit that the clerk improperly included in the statement of facts in the transcript the order of the commissioners court declaring result of the local option election, and that these had not been embraced in the statement of facts as agreed to, but simply noted that they should be copied, the judgment will be reversed.
49 Tex. Crim. 300Honeycutt v. State (1906)
Aggravated Assault—Evidence—Bill of Exceptions—Impeachment. Upon an appeal upon a conviction of aggravated assault where the bill of exceptions did not show that the injury complained of by prosecuting witness was inflicted upon her by herself in striking a third party with her fist and not by the defendant, and the rejected testimony could not have been used for the purpose of impeachment, there was no error.
49 Tex. Crim. 301Choran v. State (1906)
The opinion states the case.
49 Tex. Crim. 303Kincaid v. State (1906)
The opinion states the case.
49 Tex. Crim. 304Wilkinson v. State (1906)
Embezzlement—Bailment—Insufficiency of Evidence—Consent. Where upon a trial for embezzlement the bailor testified that she authorized the defendant to spend the money, which he was charged of embezzling, provided he did not spend too much of it, etc., there was consent of the bailor, and the conviction could not be sustained.
49 Tex. Crim. 306Holley v. State (1906)
1.—Burglary—Continuance—Testimony not Probably True—Alibi. Where on trial for burglary, and motion for' continuance to show an alibi by the testimony of the absent witness, whom -the application did not show had seen the defendant during all of the time during which the burglary was committed, and where the evidence showed that the defendant had confessed to the commission of the burglary, besides the testimony of his accomplices against him, there was no error in. overruling the motion. ¡2,—Same—Accomplice’s Testimony—Corroboration. Where upon trial for burglary the evidence showed that the prosecutor had told defendant that he would not prosecute him if he would return the goods, but did not promise him immunity in the sense that he would testify falsely for him, or would do any act for the purpose of concealing him or suppressing the crime. Held that such witness was not an accomplice. Following Ohenault v. State, 10 Texas Ct. Rep., 909; Robertson v. State, 81 S. W. Rep., 1000. Overruling, Gatlin v. State, 40 Texas Grim. Rep., 116.
49 Tex. Crim. 308Kiefel v. State (1906)
Local Option—Judgment—Misdemeanor. Where the defendant was convicted of violating the local option law and the judgment so recites, the same is sufficient, the offense being a misdemeanor it is not necessary that the judgment should show an offense eo nomine. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 309Leito v. State (1906)
The dying statement of deceased was substantially (after stating that he was going to die, etc.), that he came from Midlothian; Texas, to Dallas on business; that later he went down to South End, and while there visited a saloon, they called the “Blue Goose”; that there he met a bartender whose name he thought was Henry Bushing, and the bartender they called Frank who worked at the Blue Goose; that he had learned since that his full name was Frank Leito; that deceased had…
49 Tex. Crim. 314Johnson v. State (1906)
1. —Murder in First Degree—Change of Venue—Affidavit of Defendant—Compurgators, Absence of. In a case of murder where defendant had filed his individual affidavit for change of venue, stating that he was unable to obtain compurgators, but the court qualified defendant’s bill of exception by stating that there were creditable witnesses who would have signed as compurgators, etc., there was no error in the court’s action in refusing' to hear any evidence on said affidavit. 2. —Same—Continuance—Imputing Crime to Third Party. Where upon trial for murder the defendant’s application for continuance set out testimony of the absent witness to the effect that the paramour of one T. had money which she stated T. gave her, and asked the absent witness for change of one of the bills she had, etc., and that said T. had been one of the hands around the oil mill in which the killing occurred. Held, that such testimony would have been inadmissible as original evidence to connect T. with the homicide, and thus exonorate defendant. 3. —Same—Charge of Court—Murder in Second Degree—Confession. Where upon trial for murder the defendant’s confession was used in evidence in connection with other evidence, and which showed clearly that deceased was killed while he was asleep, and for the purpose of robbery, there was no error in not charging on murder in the second degree. 4. —Same—Predicate for Confession—Charge of Court. Where upon trial for murder a proper predicate was laid for the admission in evidence of defendant’s confession, and the court charged the jury that if they should find these confessions were induced by hope or fear they should disregard them; and the evidence, if any, tending to suggest either the theory of hope or fear of defendant in making the confession was so remote that the jury were fully warranted in holding that they were freely made, there was no error. 5. —Same—Jury and Jury Law—Challenge for Cause. Where upon trial for murder a juror who was challenged for cause which was overruled, and then peremptorily challenged, which exhausted defendant’s peremptory challenges and he was forced to accept other jurors to try his case; and the record showed that the juror, who was thus peremptorily challenged had never heard any of the evidence in any previous trial of the case, or talked to any witness therein; that he had never heard from any source what purported to be the testimony in the case; and that his opinion was based on hearsay, was not fixed or established, and that if selected to try the case he would wholly disregard such opinion and would not be influenced thereby, etc., there was no error. 6. —Same—Conversations and Impressions of Jurors—Challenge for Cause. Where upon a trial for murder a juror stated that he had an opinion about the guilt or innocence of defendant from a conversation he had had with a juror who sat upon a, former trial of the case, and other impressions he received from reading newspapers and conversations with other parties, but who upon further examination by the court stated that he had no fixed or established opinion from such impressions, and that the same were not based upon any talks had with a witness; that he had no knowledge of the facts; and defendant’s bill of exceptions did not show what said conversation was which the juror had with one who sat upon a former trial, there was no error in overruling defendant’s challenge for cause. 7. —Same—Death Penalty—Sufficiency of Evidence. Where upon trial for murder the confession of defendant showed that he killed the deceased while sleeping and for the purpose of getting his money, a conviction assessing the death penalty will not be disturbed.
49 Tex. Crim. 319Huffman v. State (1906)
Disturbing Peace—Boarding-House—Public Place—Information—Arrest of Judgment. Upon a trial for disturbing the peace, where the information alleged that defendant went into or near a public place; to wit, “the boarding-house of Mrs. R. ,’’ etc., without averring the facts which made said boarding-house a public place, the same was bad on motion in arrest for judgment.
49 Tex. Crim. 321Oxford v. State (1906)
1. —local Option—Agent—Commission—Sufficiency of Evidence. Where upon a trial for a violation of the local option law the evidence showed that the defendant was the agent of a liquor dealer and ordered whisky for parties in a local option territory from said dealer on which defendant received a commission if parties took the whisky, and that defendant received a dollar from prosecutor to pay out whisky in the express office which had been ordered for another party who had failed to take it out, and delivered same to prosecutor. Held that the evidence sustained a conviction", although defendant claimed he got no commission on such whisky. 2. —Same—Jurisdiction—Transfer of Case—Disqualification of Judge—Ministerial Act. Upon a trial for the violation of the local option law where the record showed that the district judge who transferred the case to the county court was related to defendant within third degree, there was no error, as such act was merely ministerial.
49 Tex. Crim. 323Prewitt v. State (1906)
Carrying Pistol—Evidence—Charge of Court. Where upon a trial for unlawfully carrying a pistol the evidence showed that the defendant had the pistol in his hand, and that witness thought he put it in his right hand coat pocket; that the defendant was in a buggy; that an officer approached him and searched him and failed to find the pistol, there was no error in refusing special charges that if defendant had the pistol while he was in the buggy, or if he did not have the same on or about his person, etc., to acquit. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 324Isham v. State (1906)
The opinion states the case.
49 Tex. Crim. 327Howard v. State (1905)
lottery—Statutes Construed—Insufficiency of Evidence. Where the indictment charged the defendant with violating article 377, Penal Code, by establishing a lottery, but did not charge him with a violation under the second clause of said article, with disposing of property; and there was no evidence to show that he established the lottery in question, but only testimony that defendant was in the room and handled tickets and turned the wheel, etc., there was not sufficient evidence to convict him of establishing a lottery, and the testimony, with reference to disposing of property, should not have been admitted under the indictment. a
49 Tex. Crim. 329Counts v. State (1906)
1. —Adultery—Continuance. Where upon trial for adultery the application for a continuance set up allegations which were entirely too general and failed to show an opportunity for knowledge on the part of the absent witness, there was no error in overruling the same. 2. —Same—Affidavits Attached After Motion Was Heard. Where upon appeal from conviction for adultery, the bill of exceptions upon the motion for continuance showed that the attached affidavits to same were made after said motion was acted upon, they will not be considered. 3. —Same—Two Days After Information Filed—Waiver—Diligence. Where upon trial for adultery, after motion for continuance was overruled and defendant had announced ready for trial, and the jury had been empanelled, defendant’s counsel called the court’s attention to the fact that two days had not expired since the filing of the information in which to prepare for trial; and it was nowhere made manifest that defendant’s rights were injured, or, that there was any pleading he desired to file, or any step he desired to take in order to get ready for trial of which he was deprived on account of his not having said two days. Held, that defendant waived his right. 4. —Same—Harmless Error—Evidence—Bill of Exceptions. Upon trial for adultery, it was error to admit evidence that defendant asked witness to go on his bond in another county, and that witness did not know what the bond was for, etc.; but in as much that the bill of exceptions does not show that this testimony was of a character to have injured defendant, the error was harmless. 5. —Same—Argument of Counsel—Defendant’s Failure to Testify. Where upon trial or adultery, the State offered in evidence a certified copy of the original marriage license, to which defendant objected because it was not the original, and in answer to this objection the county attorney remarked that the original was in the possession of defendant and the State could not produce it, the reference was not one to defendant’s failure to testify. 6. —Same—Evidence—Identity of Prosecutrix—Bill of Exceptions. Upon a trial for adultery, where the State was permitted to introduce testimony that the witness lived near the house of defendant’s paramour, and that on one occasion he saw him drive up to said house with a woman in the buggy with him, and saw them kissing one another, but did not know whether it was defendant’s paramour, but thought so; and the bill of exceptions did not show that other-persons lived at said house besides said paramour; and there was evidence that defendant was in the habit of driving out to said house, and the bill did not negative this fact, there was no error in admitting the testimony. 7.—Same—Acts and Declarations of Third Party—Harmless Error. Upon trial for adultery, there was no error to show where defendant’s paramour-lived and that the State’s witness saw defendant go there, etc., and the statement of witness that he had gone to see the officers about his affair, may not have been admissible but could not injure defendant. 8. —Same—Charge Refused—Carnal Intercourse. » Upon a trial for adultery, a requested charge limiting the jury to a particular occasion as to whether the parties had carnal intercourse, was correctly refused, and the court properly charged that if the parties had such intercourse within the time covered by the indictment they should convict. 9. —Same—Case Stated—Sufficiency of Evidence—Circumstantial Evidence. Where upon trial for adultery the defendant was shown to have frequented the house of his paramour, staying there at nights, furnishing and buying her supplies, groceries, etc., that she lived alone in said house, and that during that time defendant made his home there, taking his meals there, etc., and was constantly in her company, riding and walking together, etc., and upon one occasion seen lying together on the bed. Held, that these facts proved circumstantially that the parties were living together and had carnal intercourse.
49 Tex. Crim. 334James v. State (1906)
The opinion states the case.
49 Tex. Crim. 335Lane v. State (1906)
Tried below before Hon. Jo W. Akin. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.
49 Tex. Crim. 337Meroney v. State (1906)
Pursuing Occupation Without license—Occupation Tax. The statute of this State requires that after the tax is paid for pursuing the occupation of liquor dealer, the license must be posted in a conspicuous place in the house; and a defense of the accused that he believed other parties had paid his tax, when he had no license, was untenable.
49 Tex. Crim. 338Harris v. State (1906)
1. —Robbery—Impuning Character of Witness—General Reputation of Witness —Practice—Cross-Examination—Stranger—Rebuttal. Upon a trial for robbery where the principal State’s witness who was a stranger was put through a most searching and rigid cross-examination tending to bring him into disrepute before the jury, and directly or indirectly impugning his character to show the falsity of his testimony, there was no error in permitting the State to introduce witnesses to show the good reputation of said State’s, witness for truth and veracity, before defendant placed his evidence before the jury; besides witnesses for the defense were subsequently introduced whose testimony made serious attack upon the standing of said State’s witness, and it was therefore immaterial that the sustaining evidence of the State was not brought out simply in rebuttal. Following Phillips v. State, 19 Texas Grim. App., 158. 2. —Same—Impeachment of Witness—Charge Refused. Upon a trial for robbery where the impeaching evidence was not of such nature that it might mislead the jury into convicting for another offense, or bring about an increased punishment and could not injuriously affect defendant, and such evidence of general reputation could only affect the State’s witness, there was no error in refusing a special charge to limit said testimony to the purpose of impeachment. 3. —Same—Withdrawal of Testimony—Bill of Exceptions—Declaration of Third Party. Where on trial for robbery the bill of exceptions did not recite what the conversation was, had between the alleged injured party and a third party, and such conversation was drawn out by the defense, there was no error in the refusal of the court to withdraw said testimony by special charge. 4, —Same—Harmless Error—leading Question. On trial for robbery where the facts were all before the jury so clearly and strongly that the injured party was forced to turn over his money at the muzzles of pistols, his mere statement that he was afraid not to give the money to defendant, even if it was in response to a leading question, would not authorize a reversal. 5. —Same—Contradiction of Witness—Predicate—Question—Answer. Upon a trial for robbery upon cross-examination of defendant, with reference to an extraneous offense, which laid the predicate for his contradiction by other witnesses, which were not introduced however, the defendant denying such offense, there was no error.
49 Tex. Crim. 342Hilterbrand v. State (1906)
The opinion states the case.
49 Tex. Crim. 343Price v. State (1906)
The opinion states the case.
49 Tex. Crim. 345Walker v. State (1906)
The opinion states the case.
49 Tex. Crim. 348Holmes v. State (1906)
The opinion states the case.
49 Tex. Crim. 349Glenn v. State (1906)
1. —Robbery—Fraudulent Intent—Statutes Construed—Ownership of Property. Under article 856, Penal Code, the essential elements of robbery consist of force or violence, fraudulent intent to appropriate the property taken from the party assaulted, and that the property taken must belong to one other than the taker, and if the taker at the time believed the thing taken was his own the offense would not be robbery. 2. —Same—Case Stated—Insufficiency of Evidence. In a prosecution for robbery where the evidence showed that the prosecutor and defendant slept in the same room, and that defendant upon arising found that $1.25 had been taken from his clothes during the night, and immediately accused his companion of having stolen it, the latter denying it, whereupon an altercation ensued between them during which defendant picked up a hammer and threatened to strike his companion unless his money was returned, whereupon his companion handed him that amount, the evidence is insufficient to sustain a conviction for robbery.
49 Tex. Crim. 351Schults v. State (1906)
1. —Rape—Evidence—Irrelevant Testimony. Upon a prosecution for rape, testimony that defendant made a proposition to State’s witness that he would tell him of a woman, not naming her, with whom witness could have sexual intercourse, provided the witness would do so, etc., was not only inadmissible but injurious to the rights of defendant. 2. —Same—Evidence—Irrelevant Testimony—Unconnected Incident. Upon a trial for rape, it was error to permit the State to introduce testimony that defendant’s nephew had made to prosecutrix a proposition of marriage, etc.; and that defendant had stated in her presence and others that when his nephew married, he was going to give him the best span of mules he had; this statement having been made some time before the birth of prosecutrix’s child. There was no connection shown between defendant’s said statement and his nephew’s proposition of marriage. 3. —Same—Evidence—Imputing Crime to Third Party. Upon a trial for rape, it was error to refuse testimony on cross-examination of State’s witness as to the age of her son; it being a question in the case as to whether defendant was the father of the illegitimate child, or whether the son of said State’s witness was such father. 4. —Same—Other Acts of Intercourse. Upon a trial for rape, the State should not have been permitted to go into an examination of prosecutrix in regard to other acts of intercourse between herself and defendant, except the one relied upon for conviction; and especially were the details of such other acts not admissible.
49 Tex. Crim. 354Chambless v. State (1906)
The opinion states the case.
49 Tex. Crim. 355Coleman v. State (1906)
The opinion states the case.
49 Tex. Crim. 358Vann v. State (1906)
Manslaughter—Bill of Exceptions—Ordinance. Upon an appeal for a conviction of manslaughter- where the bill of exceptions did not set out the ordinance, to the introduction of which objection was made during the trial because of its unconstitutionality, the same can not be considered, and the explanation of the court does not cure the defect in the bill. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 360Cain v. State (1906)
1. —Theft—Information—Possession. Upon trial for theft where the allegation of the information was that the property was in P., and the proof showed that P. was the jailer and that the property in fact belonged to one who had been adjudged insane and sent from the jail to the asylum and who left the property with the jailer to keep until it was called for, the possession of the property was properly alleged. 2. —Same—Charge Refused—Temporary Appropriation—Want of Fraudulent Intent. Upon a trial for theft where the evidence showed that the coat alleged to have been stolen was taken by defendant and worn to a party and left at a neighbor’s, with declarations by defendant that the same belonged to P. and he was going to try and buy it from him; that some time thereafter defendant told P. that he had taken the coat, and that the rats had eaten it up, and P. insisted that he must account for the coat, and defendant told him where it was and that he merely wore it to the party, etc., it was error to have refused a requested charge that if the taking of the coat was for a mere temporary use with no purpose of permanently appropriating it, to acquit.
49 Tex. Crim. 361Adams v. State (1906)
The opinion states the case.
49 Tex. Crim. 365Peters v. State (1906)
Theft—Embezzlement—Insufficiency of Evidence—Bailment. On a trial for theft, where the evidence developed that if defendant secured the property he did so as the agent of the prosecuting witness, the indictment should have been drawn under the bailment statute; however, see evidence in opinion which is held not to be sufficient to authorize a conviction, even under an indictment under the proper statute.
49 Tex. Crim. 366Morawitz v. State (1906)
Leaving out the formal averments of the indictment, the same alleged: “That défendant was then and there the duly elected and qualified justice of the peace in and for justice precinct number 8 in said Karnes County, Texas, and he the said defendant then and there had good cause to believe that P. B. had committed the offense of unlawfully carrying on and about his person a pistol in said justice precinct number 8 in Karnes County, Texas, the said-as such justice of the…
49 Tex. Crim. 369Hays v. State (1906)
Tried below before Hon. H. J. Smith. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.
49 Tex. Crim. 371Watson v. State (1906)
The opinion states the case.
49 Tex. Crim. 373Smart v. State (1906)
1. —local Option—Evidence—Harmless Error—Declarations Between' Third Parties. Upon a trial for the violation of the local option law charging the sale of intoxicants to D., it was harmless error to permit D. to testify that one S., a third party, asked him for beer; that S. gave D. a dollar and that D. went to the defendant and asked him if his (D.’s) beer had come, that defendant replied in the affirmative and handed D. six beer checks for which D. paid him 90 cents of the dollar given him by S., and that D. took the six beer checks to S. and gave them to him together with the ten cents change; all of which conversation between S. and D. was not in the presence or hearing of defendant and without his knowledge. The rule would have been different if S. had been used as a witness to prove up the sale, but would not apply to the transaction occurring between D. and defendant. However, if error, it was harmless. 2, —Same—Evidence—Other Sales. Upon a trial for a violation of the local option law, there was no error in excluding testimony that the defendant had refused to sell beer to other, parties under similar circumstances to those detailed in the case on trial. 3. —Same—Charge Refused—Different Counts—Purchaser. Where the information charged the defendant in one count with selling intoxicants to S. and in another count to D., and the evidence showed that D. procured the money from S. and purchased the beer from defendant for S., the defendant not knowing S. in the transaction, and the court in his charge confined himself to the sale to D., there was no error in refusing the requested charge that if the jury entertained a reasonable doubt as to which party the sale was made, to (acquit. Besides it was immaterial under the evidence that D. made the purchase for S., and not for himself. 4. —Same—Charge of Court—Manner of Purchase. Upon a trial for a violation of the local option law, where the evidence showed that D. went into defendant’s place of business, paid him the money handed him by S., and received in return from defendant beer checks, which D. handed to S. whereupon D. and S. called for the beer and handed defendant the said checks, the same constituted a sale to either D. or S. or both, and there was no error in the charge of the court in thus submitting the law.
49 Tex. Crim. 376Berry v. State (1906)
The opinion states the case.
49 Tex. Crim. 378Moore v. State (1906)
Exhibiting Gaming Table—Knowledge of Defendant—Sufficiency of Evidence— Circumstantial Evidence. Where upon trial for exhibiting a gaming table, the evidence showed that the State’s witnesses frequently played on the pool table owned by defendant, and the looser of the game paid the table fees to him, and defendant did not deny these statements, his knowledge that games of chance were being played upon this table were circumstantially established, although no one testified positively to such knowledge.
49 Tex. Crim. 379Shaw v. State (1906)
The facts of this case will be found in Coons v. State, 49 Texas Crim. Rep. The opinion states the case.
49 Tex. Crim. 380Green v. State (1906)
Compounding Prescriptions Unlawfully—Constitutional Law—General Statute —Pharmacy. The statute which regulates the practice of pharmacy applies to all persons as a class under the same conditions and environment, and is a general statute, and therefore constitutional. Following Ex parte Massey, 49 Texas Grim. Rep.
49 Tex. Crim. 381Handy v. State (1906)
1. —Gaining—Indictment—Wager—Article of Value. In an indictment for gaming which alleges that the defendant unlawfully bet and wagered at a game played with cards, etc., it is not necessary that it should have alleged that money or something of value was bet or wagered by defendant. 2. —Same—Insufficiency of Evidence—Private Residence—Common Resort. Where upon a trial for unlawfully betting and wagering at a game played with cards at a private residence, etc., which was commonly resorted to for the purpose of gaming, the evidence showed that the game for which the defendant was prosecuted was the first game proved by the State that had been played at said residence, and that the games played there subsequently were casual, and that the defendant had no complicity therein, it did not establish the fact that such residence was commonly used for the purpose of gaming, and it was insufficient to sustain a conviction.
49 Tex. Crim. 382Spencer v. State (1906)
Gaming—Private Residence—Common Resort—Insufficiency of Evidence. Upon a trial for gaming at a place commonly resorted to for that purpose, where the evidence showed that the playing of the cards took place in a tent which was occupied by defendant and his family as a private resiednce, and it was not shown that the tent was commonly resorted to for the purpose of gaming, there being but one game played, a conviction was not authorized.
49 Tex. Crim. 383McCollum v. State (1906)
Gaming—Private Residence—Abandonment—Sufficiency of Evidence. Upon a trial for gaming at a place not a private residence then occupied by a family, where the evidence showed that said place had been a private residence, but was not such at the time of the alleged offense, and that the place had been abandoned as a home, and no family was living there at said time, and that there was no one there except two boys, sons of the father who had abandoned the place and had moved to another. Held, that the former place where the gaming occurred was not a private residence occupied by a family, and the offense was complete under the statute.
49 Tex. Crim. 384Thomson v. State (1906)
The opinion states the case.
49 Tex. Crim. 386Scott v. State (1906)
The opinion states the case.
49 Tex. Crim. 391Richardson v. State (1906)
The opinion states the case.
49 Tex. Crim. 396Camp v. State (1906)
Unlawfully Removing Fence—Statutes Construed. Under articles 796 and 797, Penal Code, it was no offense for a joint owner of a dividing fence to move his fence from one point to another so as to conform to his own wishes in regard to where his fence should run, provided he did not withdraw his fence and separate it from the adjoining fence so as to leave the premises of his neighbor uninclosed.
49 Tex. Crim. 397Cranfill v. State (1906)
Tried below before Hon. A. B. Tantis. Appeal from a conviction of keeping open a saloon on an election day; penalty, a fine of $200. The opinion states the case.
49 Tex. Crim. 399Boyd v. State (1906)
local Option—Insufficiency of Evidence—Sale. See opinion for evidence held insufficient to show a sale of intoxicating liyuor by tbe defendant to the alleged purchaser.
49 Tex. Crim. 400Yantis v. State (1906)
The evidence substantially shows the following facts: appellant was the 'keeper of a hotel in the town of Childress. Deceased’s minor son worked at the hotel a day in place of one of the regular employees of the hotel. While working at the hotel appellant accused the son of the theft of a pair of cuff buttons. For that reason he refused to pay for his services and informed him that his services were no further needed.
49 Tex. Crim. 411Moore v. State (1906)
The opinion states the case.
49 Tex. Crim. 413Ware v. State (1906)
The opinion states the case.
49 Tex. Crim. 417Bawcom v. State (1906)
The opinion states the case.
49 Tex. Crim. 419Brown v. State (1906)
Permitting Gaming—Insufficiency of Evidence. Where upon trial of defendant charging him with permitting gaming in a house under his control, the evidence showed but one occasion of gaming, and there was no proof that he authorized or permitted gaming in the house under his control, but that his testimony excluded this fact, the evidence was not sufficient to sustain the conviction.
49 Tex. Crim. 421Brookerson v. State (1906)
Killing Dog With Intent to Injure Owner—Statutes Construed. Where T was hunting in the neighborhood of B’s pasture for deer or birds, and had his dog with him, and the dog in the pursuit of game went into B’s pasture, and B’s stock took fright at the dog and ran, and no effort was made on the part of B to prevent the dog from running after his stock, and B in the first instance killed the dog without any apparent necessity to prevent the dog from injuring his stock, B, the defendant, could not justify his act, and was guilty under article 786, Penal Code.
49 Tex. Crim. 422McMichael v. State (1906)
The opinion states the case.
49 Tex. Crim. 426Denison v. State (1906)
The opinion states the case.
49 Tex. Crim. 427Rainbolt v. State (1906)
Appeal from the County Court of Nolan. Tried below before Hon. A. B. Yantis. Appeal from a conviction of permitting a minor to play pool in defendant’s place of business without consent of parent; penalty, a fine of $20.
49 Tex. Crim. 428Marek v. State (1906)
Manslaughter—Charge of Court—Terms of Law—Gender. Upon an appeal from a conviction for manslaughter, the criticism made to the charge of the court in the use of the personal pronoun “he” in applying the law to the facts was without merit, the statute providing that terms denoting the male gender include also the female; besides in the first part of the charge the words “he” or “she” were used." Nor did the use of the term “otherwise” serve to mislead the jury.
49 Tex. Crim. 429Johnson v. State (1906)
1.—Assault to Murder—Stenographer’s Transcript—Transcript by Clerk—Costs —Rules of Supreme Court—Constitutional law. The rules of the Supreme Court which provide that the statement of fact shall be copied in the record, were made before the Act of the Twenty-ninth Legislature was passed providing for a stenographic report of the testimony taken on the trial; and where an original stenographer’s transcript was sent up as the record of the case of the testimony therein, it took precedence over the transcript prepared by the clerk of the trial court, which was without authority and the costs for making it must be taxed against him. Under the constitution the rules of the Supreme Court when inconsistent with the legislative enactment, must yield to such enactment, and it is only when the stenographic transcript is not sent up that the provisions of this act do not apply, and the rules prescribed by the Supreme Court would apply. 2.—Charge of Court—Instrument Used to Produce Death—Intent. Where upon trial for assault with intent to murder, the evidence showed a sudden quarrel, after which the parties clinched and the defendant cut the injured party with a small knife, according to his statement to get loose from him, etc., the court should have given in charge the provisions of article 717, Penal Code, and substantially contained in defendant’s requested instruction, that the instrument used if one not likely to produce death, intent to murder was not presumed but must be proved from the nature of its use, etc., and that there must be an intent to kill, etc., to convict of assault to murder.
49 Tex. Crim. 434Young v. State (1906)
Rape—Sufficiency of Evidence—Age of Prosecutrix. Upon a trial for rape where the prosecutrix, a girl 11 years of age, testified to the- complete act of rape, and her mother testified to facts indicating bruises, etc.; and the physicians to a certain extent also corroborated the testimony of prosecutrix, although they did not testify to circumstances indicating- a penetration; neither’did they controvert it, the verdict of conviction was sustained.
49 Tex. Crim. 435Elliott v. State (1906)
1. —Rape—Insufficiency of Evidence—Consent. Upon a trial for rape where the testimony on the part of the prosecutrix did not show any threat by defendant, nor supposed compulsion in the sense of moral or physical fear is manifested in the record, or that she resisted the attempted outrage by the necessary force, the same was insufficient to sustain a conviction. 2. —Indictment—Count Dismissed—Incest. Where defendant was convicted upon an indictment charging rape in one count and incest in another, the conviction being for rape, the second count having been ignored, the said indictment could not be used to predicate a subsequent prosecution for incest thereon.
49 Tex. Crim. 437Cross v. State (1906)
The opinion states the case.
49 Tex. Crim. 439Deskin v. State (1906)
Disturbing Religious Worship—Insufficiency of Evidence. Upon a trial for disturbing religious worship, testimony that the witnesses had quit attending the Sunday school on account of the act of the defendant, was inadmissible.
49 Tex. Crim. 440Griffin v. State (1906)
The opinion states the case.
49 Tex. Crim. 442Lamb v. State (1906)
The opinion states the case.
49 Tex. Crim. 443Thurmond v. State (1906)
The opinion states the case.
49 Tex. Crim. 445Tune v. State (1906)
The opinion states the case.
49 Tex. Crim. 449Moore v. State (1906)
1. —Rape—Continuance. Upon a trial for rape where the application for continuance did not show that by being hurried into trial defendant was deprived of important testimony, there was no error in overruling the same. 2. —Motion for New Trial—Jurisdiction—Practice. While a court has jurisdiction of his judgments during the trial, and can set aside orders overruling motions for new trial during the term and can reconsider the question of a new trial; yet, where the defendant simply asked the judge shortly before adjournment to pursue this method and let him file a new motion, which the court refused; and no other action was taken during the term by bill of exceptions, there was no error; and the certificate of the judge subsequent to the term appended to appellant’s amended motion for new trial could not be considered on appeal. 3. —Same—Child-Witness—Amendment of Law—Oath of Witness. A child-witness over the age of nine years may testify in a case of rape under the amended statute authorizing such witness to testify, if it be shown that said witness manifest sufficient intelligence to convince the court that the nature and obligation of the oath administered was understood; and unless the contrary be shown in the bill of exceptions there was no error. 4. —Same—Circumstantial Evidence—Charge of Court. Where upon trial for rape the female on whom the offense is alleged to have been committed testified to the fact, there was no error in not charging on circumstantial evidence. 5. —Same—Tender Age of Prosecutrix—Punishment not Excessive. Where upon a trial for rape the evidence showed that the prosecutrix at the time of the offense was only nine years of age, a verdict which assessed the defendant’s punishment at ninety-nine years imprisonment in the penitentiary was held not to be excessive.
49 Tex. Crim. 452Carbough v. State (1906)
Tried below before the Hon. P. A. -Turner. Appeal front a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life. The facts in this case are substantially contained in the opinion of the court in the case of Wallace v. The State, 46 Texas Grim. Rep., 341.
49 Tex. Crim. 457Jenkins v. State (1906)
1. —Murder in the First Degree—Continuance—Immateriality of Testimony. Where upon a trial for murder, the defendant set out in his motion for continuance testimony that deceased might have been killed by some other person than defendant, but upon examination of the statement of facts, it was disclosed on appeal that this character of testimony was introduced, there was no error in overruling the motion. Nor was there error in refusing the continuance, where the facts expected to be proved by the absent witness were conceded by the State; neither was it material that another absent witness had seen a certain party on horseback near the place of the homicide. 2. —Murder in the Second Degree—Charge of Court—Circumstantial Evidence. Upon trial for murder where the evidence showed an assassination, there was no error in not submitting a charge on murder in the second degree. Nor was it error to refuse a charge on circumstantial evidence where the evidence is positive as to the identification of defendant. 3. —Same—Accomplice—Concealment. Where upon a trial for murder, the evidence showed that the chief State’s witness on the night of the homicide at the inquest had denied any knowledge of who did the shooting, but on the trial explained why he did this, and then identified the defendant as the party who did the shooting, there was no error in refusing to charge on accomplice testimony. Mere concealment of a crime does not make one an accomplice. 4. —Same—Misconduct of Jury—Defendant as a Witness. Upon a trial for murder, after the jury had retired to consider their verdict, one of the jurors asked why the defendant had not testified, and another immediately replied that the jury were not to consider this question in the case, as the defendant had a right to swear or not to swear; such matter afforded no cause for a reversal. 5. —Same—Argument of Counsel—Allusions to Extraneous Matters. " Where from the nature of the case the argument of counsel used, whether it be a fact stated pertaining to the case itself, or the injection oD'some illustration or inflammatory statement, obviously calculated to prove hurtful in the case to the defendant, a conviction should be reversed, although no written charge was asked on the subject, and no exception taken to the refusal of the court to give the same. 6. —Same—Case Stated. Where upon trial for murder, the critical point in the case was the identification of the defendant as being the party who fired the shot which slew the deceased, it was reversible error to permit the State’s attorney in his argument to reinforce this point in the State’s case, by an illustration within the observation or experience of the State’s counsel, and which had occurred in the locality of the trial, and under a judge whose approval, from his high character gave sanction to the illustration; and to permit the State’s counsel to give the details of this transaction and identification, which were very similar to those presented in the case on trial, and to assert the statement that the identification of the defendant in the extraneous case must have been true, because he confessed on the scaffold; and this, although no charge to ignore this argument was requested.
49 Tex. Crim. 466Cowan v. State (1906)
1. —Embezzlement—Trust—Implied Trust. Upon a trial for embezzlement, where the evidence showed that the defendant had received a cash payment on land sold to the prosecutor, which according to mutual agreement was to be paid by him to a third party to satisfy a vendor’s lien note on said land, and that defendant failed to apply said money as agreed but appropriated same to his own use and benefit, he was guilty of embezzlement. 2. —Same—Misconduct of Jury—Defendant as a Witness—Amended Motion For New Trial. Where upon a trial for embezzlement, after the jury retired to consider their verdict, the fact that the defendant failed to go on the stand as a witness was freely commented upon as an evidence of his guilt among the jurors. Held error, although defendant’s counsel admitted that he knew of these matters as set up in his amended motion for new trial, before he filed his original motion, and gave no reason why they were not set up and incorporated therein; and the court should have inquired into the question presented by affidavit attached to the motion before overruling the same. 3.—Same—Motion, for New Trial—Piling Amended Motion. In the absence of some definite rule of the court on the subject of filing motions for new trial, there was no limitation that could be inaugurated in the particular case where the motion for new trial had not been determined when the amended motion was filed during the term, or presented and leave asked to file the same during the term; and where the same presented an important matter relating to the misconduct of the jury. Held, that the court was not authorized to reject the amended motion for new trial.
49 Tex. Crim. 470Jenkins v. State (1906)
The opinion states the case.
49 Tex. Crim. 471Hammock v. State (1906)
1. —Theft of Horse—Evidence—County Convict—Identity. Upon trial for theft of a horse where the State’s witnesses merely stated in general terms that they were working at the convict camp, guarding convicts and while there knew defendant, there was no force in the objection that defendant had not been placed on the stand as a witness in order to show this matter. Besides the bill of exceptions failed to show that defendant was an ex-county convict; the question was simply one of identity. 2. —Same—Refreshing Memory of Witness—Date of Note—Phone Message. Where upon appeal from a conviction of horse theft the bill of exceptions did not make it clear that witness refreshed his memory by a phone message as to the date of a note, and the records showed that he knew the date of the offense aside from the date of said note, and a great number of witnesses made said .date certain, there was no error. 3. —Same—Charge of Court—Property not Included in Theft. Upon trial for the theft of a horse, where the evidence did not show the theft of a bridle, but on the contrary disclosed that defendant borrowed it, there was no necessity for submitting a charge with reference thereto. 4. —game—Contemporanous Theft—Charge of Court. Upon trial for theft of a horse, where the evidence showed the contemporaneous theft of a saddle, which was not controverted; and the court charged the jury that they could only use said testimony concerning the theft of the saddle in judging of the intent of defendant as to the theft of the horse, there was no error. Distinguishing Stull v. State, 84 S. W. Rep., 1959.
49 Tex. Crim. 473Powell v. State (1906)
The opinion states the case.
49 Tex. Crim. 475Ex Parte Love (1906)
1. —local Option—Grand Jury—Recess—Discharge—Indictment—Habeas Corpus. A grand jury has a right to take a recess under the terms of the statutes for the time prescribed thereby, and where the recess is for a longer time it must be done under the authority of the court. Where a grand jury recessed from May 27 until the 19th of June following by authority of the court entered on the minutes of the court, there was no error. 2. —Constitutional law—Grand Jury Must Consist of Twelve Men. By the terms of the Constitution a grand jury is composed of twelve men, no more and no less; and an indictment presented by a grand jury composed of any other number is a nullity and incapable of conferring jurisdiction upon any court in this State, and objections to such indictment are fundamental and jurisdictional and available at any time with or without exception; and even a conviction under such illegal indictment can be set aside under proceeding of writ of habeas corpus. But, nine members of the grand jury may return a bill. 3. —Same—Excusing or Discharging Grand Juror. The rule is that neither the grand jury nor the court can excuse a member of the grand jury after it has been legally organized, and the power of the district court is limited to a discharge of the entire grand jury. 4. —Same—Case Stated. Where a grand jury of twelve men was empanelled and thereafter under the order of the court recessed for several weeks, and only eight jurors reassembled the others being detained by reason of swollen streams and one of them on account of sickness, the court had no power to discharge said sick juror and empanel another to take his place. 5. —Same—legal Indictment. Where the court discharged a grand juror on account of sickness and empaneled another person in his stead to act with the balance of the grand jury, and such person was only with the grand jury from three to five minutes and no case was considered or discussed and no action taken by vote or otherwise before such person was discharged from the grand jury; and a quorum of the regular grand jury thereafter indicted defendant for a violation of the local option law. Held, that the empaneling and discharge of said person did not affect the action of the regular constituted grand jury, and that the indictment returned against defendant was properly returned and filed.
49 Tex. Crim. 478Henderson v. State (1906)
Local Option—Evidence—Other Offenses—Maximum Penalty. Upon trial for a violation of the local option law, where the indictment was returned long prior to the conviction inquired about, it was error to permit the State’s counsel to ask the defendant on cross-examination, that although he was tried and convicted the week before, he still ran his place wide open, which he answered in the affirmative; especially where the verdict assessed the maximum punishment. Distinguishing Henderson v. State, decided Dallas term, 1906, 49 Texas Grim. Rep.
49 Tex. Crim. 479St. Clair v. State (1906)
1. —Murder in the Second Degree—Evidence—General Reputation—Act of Third Parties. Upon trial for murder, after the witness for the defendant had testified to the general reputation of the deceased as being a quarrelsome man and that of defendant as being a reasonable citizen, it was error to permit the State on cross-examination to show that the witness and deceased had a quarrel in which the son-in-law of witness was also involved, and to go into details of said quarrel. 2. —Same—Cross-Examination—Impeaching Testimony. Upon trial for murder, where the defense had laid a predicate to impeach a State’s witness to the effect that he kept on piling cotton stalks and burning them while the shooting was going on, whereas on the trial he denied this statement, it was error to permit the State on cross-examination of the impeaching witness to bring out all the details in regard to the difficulty between deceased and defendant. Impeaching testimony must conform to the predicate laid and not go out into other matters. 3. —Same—Reputation of Deceased—Bills of Exceptions—Harmless Errror. Upon a trial for murder, there was no error in the refusal of the court to permit defendant to prove the reputation of the deceased before the details of the killing, and that threats had been made by deceased against defendant were admitted in evidence; and especially where testimony of such threats appeared in the record of the case; and defendant’s bill of exceptions did not show that after proving threats he again offered testimony as to the reputation of the deceased. 4. —Same—Side-bar Remarks—Conduct of Attorneys. See opinion for remarks of the court with reference to side-bar remarks and animadversions and criticisms among the attorneys, which should be promptly restrained by the trial court. 5. —Same—Charge of Court—Manslaughter—Self-Defense. Where upon trial for murder, there were adverse theories presented by the evidence, to wit: the issues of murder in the second degree, manslaughter and self-defense, and self-defense from the standpoint of fear of actual danger, as well as the standpoint of communicated threats, the court should have submitted special charges upon those theories. 6. —Same—Abandonment of Difficulty—Self-Defense—Manslaughter. Upon trial for murder, it was not sufficient that the court charged that if deceased abandoned the difficulty and defendant so understood it, and he then fired upon and killed deceased he could not plead justification; for if appellant was acting on the defensive, he might in that case not be guilty of a higher offense than manslaughter, and the court under the evidence in the case should have so charged the jury. 7. —Same—Defensive Theory—Vantage Ground. Where upon trial for murder the defensive theory was that there was no abandonment of the difficulty by the deceased, and there was evidence that the deceased during the difficulty approached a tree for the purpose of getting a better-vantage ground, and that the acts of the defendant and deceased and the features of the difficulty moved in rapid succession, and involved self-defense, manslaughter and abandonment of the difficulty, the court should have charged specifically on those issues. 8. —Same—Dangerous Character of Deceased—Self-Defense. Evidence in regard to the dangerous character of the deceased is admissible as evidence in the case to be weighed by the jury; but the slayer would have as much right to act in self-defense if his life was in danger, either actually or apparently, whether deceased was or was nút a dangerous man, and the right of self-defense is not curtailed by" reason of the fact that the deceased was not known as a dangerous man. See opinion for charge of court on this phase of the case which was held too restrictive. 9. —Same—Transcript—Stenographic Report—Narrative Statement. See opinion for suggestion of the court that the narrative form of perpetuating the evidence for appeal, is preferable to long stenographic reports of the testimony during the trial.
49 Tex. Crim. 485Leatherman v. State (1906)
The opinion states the case.
49 Tex. Crim. 486Forbish v. State (1906)
The opinion states the case.
49 Tex. Crim. 488Murphy v. State (1906)
Forgery—Name of Defendant—Assumed Name. Where upon trial for forgery the prosecution was against W, and the defendant when called upon to plead suggested his true name to be M, and from that point the prosecution was carried on in the latter name, and the evidence showed that he also went under the name of W and several other names, and that he signed the instrument alleged to have been forged under the name of M, which he contended was his true name; held that all this character of evidence having been introduced by the State to show defendant’s method and that his true name was not M; and all the facts having been submitted under a proper charge, the conviction was sustained.
49 Tex. Crim. 489Stephens v. State (1906)
1. —Embezzlement—Indictment. See opinion for indictment brought under article 938, of the Penal Code, for embezzlement held to be sufficient on motion to quash. Following Goodwyn v. State, 64 S. W. Rep., 251. 2. —Same—Evidence—Confession—Warning—Bill of Exceptions. Where upon trial for embezzlement, the record on appeal showed that the warning given to defendant was within such time as that he must have been charged with notice of the warning when he made the confession, although the same was not contemporaneous with the warning, but was made in such proximity as to time and under circumstances reasonably showing that he was mindful of the warning when he made the statement, the same was receivable in evidence; besides the bill of exceptions does not contain the testimony objected to, and the court is not required to look through the records and determine under what circumstances the confession was made. 3. —game—Written Instrument—Receipt—Parol Explanation. Where upon trial for embezzlement the written instrument upon which the prosecution was predicated, was in the nature of a receipt for money and is not contractual in its character, the same was subject to explanation by parol testimony; especially where the deposit was not to a bank but a private person, even though the receipt recited that the money was deposited subject to the depositor’s order on demand. 4. —Same—Subject of Embezzlement. In a prosecution for embezzlement, where the defendant received money from the prosecutor for safe keeping with a right to deposit the same in a bank, it made no difference whether the act of deposit in the bank by defendant in his name was a conversion, or the subsequent withdrawal of the money from the bank after such deposit, was the conversion, the effect would be the same.
49 Tex. Crim. 493Gaut v. State (1906)
The opinion states the case.
49 Tex. Crim. 496Wilson v. State (1906)
1. —Raise Swearing—Justice of the Peace—Ex-officio Notary Public. In a prosecution for false swearing, where the evidence showed that the jurat to the affidavit upon which the alleged false swearing was predicated, was signed by the justice of the peace as such and as ex-officio notary public, the same was sufficient to admit it in evidence. 2. —Same—Raise Affidavit—Marriage—Definition of Offense. On a trial for false swearing, where the evidence showed that the affidavit to procure a marriage license and upon which the prosecution was based, was introduced in evidence; and the false oath related to something past or present, it afforded the basis of false swearing, and it was not necessary that it be on a material question as in perjury; and there was nothing in the contention that the female described in the affidavit had no one authorized to consent to her marriage to defendant. 3. —Same—Accomplice—Charge of Court. Where upon trial for false swearing, the evidence showed that there was no persuasion or suggestion on the part of the justice of the peace and constable to the defendant to induce him to make a false affidavit, although they knew this at the time, and although the justice did not refuse to administer the oath to the affidavit, the question of accomplice did not arise, and no charge on this issue was necessary. 4. —Same—Charge of Court—Weight of Evidence. Upon a trial for false swearing, where the court after enumerating the essential elements of the offense, instructed the jury that if at the time defendant made the alleged false statement under oath, he believed the facts therein stated to be true, then he would not be guilty of the offense charged and should be acquitted, the same was not on the weight of the evidence and there was no error. 5. —Same—Sufficiency of Evidence. Where upon a trial for false swearing, the evidence showed that the female named in the alleged false affidavit was under 18 years of age when the defendant made said affidavit to procure marriage license, and defendant must have known this fact at the time, the conviction for false swearing was sustained.
49 Tex. Crim. 499Moore v. State (1906)
One of the principal State’s witnesses described the shooting substantially as follows: that the deceased had just left her house and just as he turned to walk off, witness noticed defendant coming from his home;. witness saw him right by the fence on the sidewalk; that he was coming up the street towards witness’ house, walking pretty fast; that witness did not see anything in defendant’s hand at first, but saw a gun afterwards; that defendant was holding it down by his…
49 Tex. Crim. 511Henderson v. State (1906)
1. —Assault With Intent to Rape—Non-Expert Testimony. Upon a trial for assault with intent to rape, it was error to admit the opinion of non-experts to testify to the sanity of defendant, without giving the facts and circumstances upon which they predicated their opinion. 2. —Same—Charge Refused—Doctrine of Election—Single Act. Upon a trial for assault with intent to rape, it was error to refuse a requested charge that the jury could not convict for any acts done by defendant at any other time than the one the State elected to prosecute upon; the evidence showing that without the objection of defendant more than one act was proved. In prosecutions for rape it is not proper to prove more than one act. 3. —Same—Charge of Court—Aggravated Assault. Upon a prosecution for assault with intent to rape, unless the evidence suggested aggravated assault, it was error to submit that phase of the case.
49 Tex. Crim. 513Feige v. State (1906)
local Option—Incorporated Association—Sale—Subterfuge—Principal. Where upon a trial for violating the local option law, the evidence showed that the money paid in by the club members of an incorporated association, was paid into the corporation fund and became the property of the same, with which it furnished beer to the members of the club through its manager, the defendant; and that the money was not sent out of the local option territory to purchas'e beer for individual members or groups of members, but that the beer was purchased by the corporation and sold at five cents a glass by the manager to individual members. Held, that the defendant became the vendor of the beer and the principal in the transaction; and that the whole plan pursued was a mere subterfuge to cover a sale made in local option territory; and this although defendant was not shown to have been personally present at the time of the sale, but was assenting to this method of disposing of intoxicating liquor.
49 Tex. Crim. 517Kirby v. State (1906)
The opinion states the case.
49 Tex. Crim. 519Scott v. State (1906)
1. —Murder in Second Degree—Continuance—Witness. Upon a trial for murder where the defendant presented his third or fourth application for continuance for the same witness, and it was evident that said witness was mythical or could not be procured, there was no error in overruling the motion. 2. —Same—Evidence—Conduct of Defendant—Preventing Arrest. Upon a trial for murder, where testimony was introduced by the State of acts and conduct on part of defendant to prevent his arrest shortly after the homicide, there was no error; besides there was no certificate of the judge that the grounds stated in defendant’s bill of exceptions were true, nor did the bill negative the idea that what was done by defendant was to prevent the witness from getting an officer to secure defendant’s arrest. 3. —Same—Charge of Court—Self-Defense—Preventing Rape. On a trial of murder where the defendant testified that he interfered between the deceased and the State’s witness to prvent the former from raping the latter, and that-deceased attacked him with a knife and defendant killed him in self-defense ; and the court instructed the jury to acquit the defendant if he killed deceased to prevent the latter from committing rape, and also to acquit him if the defendant acted in self-defense there was no error. Neither was it error of which defendant could complain to submit incorrect charges requested by defendant. 4.—Same—Accomplice—Corroboration. Where upon trial for murder, it was doubtful whether the State’s witness was an accomplice, but the court nevertheless submitted this issue, as also the question of corroboration, and there was evidence of corroboration, the verdict will not be disturbed.
49 Tex. Crim. 522Brumley v. State (1906)
The opinion states the case.
49 Tex. Crim. 524Adkins v. State (1906)
The opinion states the case.
49 Tex. Crim. 526Martin v. State (1906)
The opinion states the case.
49 Tex. Crim. 530Gillespie v. State (1906)
1. —Incest—Accomplice—Charge of Court. Upon a trial for incest where the evidence showed that the female, although not engaging in the act voluntarily and with the same intent as her paramour, made no sort of resistance to the act of copulation, and merely remained passive, the charge of the court which failed to pronounce such conduct of the female to be sufficient to make her an accomplice, was error. 2. —Same—Evidence—Declaration of Third Parties—Hearsay. Upon a trial for incest, the testimony of the prosecutrix that she told her mother and brother about the transaction should have been excluded under the circumstances of the case. 3. —Same—Other Transactions of Incestious Intercourse. Upon a trial for incest, evidence of former transactions of incestuous intercourse between prosecutrix and defendant were inadmissible; especially where such transactions were more than ten years old. 4. —Same—Accomplice—Corroboration—Insufficiency of Evidence. Upon a trial of incest where the evidence showed that the prosecutrix was an accomplice, and there was not sufficient testimony corroborative of her testimony, the conviction could not be sustained.
49 Tex. Crim. 532Lasister v. State (1906)
1. —Passing Forged Instrument—Allegation and Proof—Variance. Where upon trial for passing a forged instrument upon a certain party alleged in the indictment, the evidence showed that the defendant passed the instrument to another party not alleged in the indictment who took it to the party alleged in the indictment, had the same cashed by him and then handed the money to the defendant, a charge that under these circumstances defendant would be entitled to acquittal should have been given. Following Huntly v. State, 34 S. W. Rep., 923; Riley v. State, 44 id., 498. 2. —Same—Charge of Court—Circumstantial Evidence. Where upon trial for passing a forged instrument the evidence showed that if the same was forged, it was only shown by circumstances and these of rather a negative character, a charge on circumstantial evidence should have been given. Following Nichols v. State, 44 S. W. Rep., 1091. 3. —Same—Confession—Warning—Acts of Defendant. Upon a trial for passing a forged instrument where the acts of the defendant while under arrest, without being warned, and which were criminative, were introduced over the objection of defendant, there was reversible error. 4. —Same—Evidence—Negative Testimony—Tax Rolls. Upon trial for passing a forged instrument where the State resorted to circumstantial evidence to prove that the name signed to the alleged forged instrument was fictitious, it was error to permit the State to introduce testimony by the tax collector that such name did not appear on his roll. 5. —Same—Misconduct of Jury—Defendant’s Failure to Testify. ^ Where upon appeal from a conviction of passing a forged instrument the motion for-a new trial showed that the jury in their deliberation referred to the fact that the defendant had failed to testify, the conviction must be set aside.
49 Tex. Crim. 534Wisdom v. State (1906)
The opinion states the case.
49 Tex. Crim. 535Mitchell v. State (1906)
Appeal from the District Court of Jefferson. Tried below before the Hon. W. H. Pope. Appeal from a conviction of sodomy; penalty, five years imprisonment in the penitentiary.
49 Tex. Crim. 536Ex Parte Young (1906)
From the District Court of Williamson County. Original application for habeas corpus for suspension of death sentence in a murder case passed upon relator during a special term of the district court. The opinion states the case.
49 Tex. Crim. 550Newcomb v. State (1906)
1. —Murder in Second Degree—Bill of Exceptions. On trial for murder a bill of exceptions was taken which related to the action of the court in refusing to admit testimony that the reputation of deceased in the community in which he lived was bad, vicious and quarrelsome in settlements, without showing any reason or purpose on the part of the defendant for offering said testimony, or what object it could serve involving any issue in the case. Held that the bill was not sufficiently full and certain to be considered. 2. —Same—Grounds of Objection Must Be Stated. Where on trial for murder defendant objected to the admission of- testimony • to the effect that certain witnesses had testified for the State on the examining trial and that no witnesses testified for defendant on said trial, because said testimony was irrelevant and immaterial, the objection is too general, and the allegations of the bill of exceptions should be full and explicit. 3. —Same—Practice of Appeal. Where on trial for murder objection was made to the introduction of testimony showing that the inquest proceedings were reduced to writing and certain witnesses testified, without stating the grounds for objection in the bill of exceptions it could not be considered. 4. —Same—Oral Evidence—Books of Original Entry—Written Order. See opinion on motion for rehearing for objections in bill of exceptions with reference to testimony regarding a certain written order, and account in books of original entry which is held by the court to have been correctly overruled. 5. —Same—Evidence—Counteracting Cross-Examination. On a trial for murder it was not error to admit proof by the State that deceased did business with a certain bank, the court explaining that the bank officers were not actuated in their testimony by their banking connections and because the deceased was not a patron of their bank; to counteract a suggestion by way of cross-examination that defendant was being prosecuted by bankers. 6. —Same—Evidence—Photograph—Bill of Exceptions. On a trial for murder where the bill of exceptions to a ruling of the court to exclude a photograph, did not show that there was evidence in the case which showed that the dresser appearing on the potograph was located at the point where it was at the time the homicide was committed, it could not be considered. The rule is that if the photograph of the scene of the homicide would serve to illustrate any fact, as the locality where some particular act occurred it would be admissible; but when it is neither necessary nor instructive it would tend to create confusion and should be excluded. 7. —Same—Evidence—B,elative Strength and Size of Parties. Where on trial for murder the defendant had introduced evidence of a struggle between himself and deceased, prior to his use of a knife on deceased; that the latter was endeavoring to get a‘pistol, and that he tore defendant’s shirt in a struggle to prevent him from doing' so, and that deceased was the stronger and a more powerful man than defendant, it was error to exclude testimony in regard to the size and relative strength of the parties. 8. —Same—Harmless Error—Dispute Between Attorneys. Where on a trial for murder a dispute arose between the attorneys with reference to the introduction of testimony as to the character of defendant for truth and veracity, and that the court did not agree with the attorneys for the State on the point at issue, and so stated before the jury, such a dispute although improper was harmless error. 9. —Same—Practice in District Court. On a trial for murder, the action of the court in receiving the report of the grand jury during the progress of the trial, which contained no reference to defendant’s case or affected the same was no error. 10. —Same—Argument of Counsel—Bill of Exceptions. On a trial for murder where the defendant did not ask a special charge to ignore argument of State’s counsel, and the bill does not show that such argument was obviously of a character to have injured appellant’s right, there was no reversible error. 11. —Same—Responsive Argument. On a trial for murder where defendant’s attorney had vigorously assaulted the State’s witnesses, there was no error on part of the State’s counsel to respond to such argument. 12. —Same—Opinion of Counsel. While an attorney is not authorized to parade his belief as to the guilt of the defendant, there was no error when such a statement was qualified by counsel that the jury should not consider it but try the case according to the evidence. 13. —Same—Evidence in Examing Trial. On a trial for murder where defendant’s attorney in cross-examination of the State’s witness used the examining-trial-evidence, and would read portions thereof, and ask her if she so swore on the former trial and if it was true; State’s counsel was authorized to refer to that fact in his argument and to state that she was not contradicted by her former testimony; although said examining trial evidence was not introduced. 14. —Same—Allusion to Other Case. When on trial for murder the State’s counsel, while arguing on the question of sympathy suggested by defendant’s counsel, cited a certain case in connection with his argument on that subject, and referred to the action of the Governor refusing a pardon on the ground of sympathy; and such reference could not have been appropriated by the jury to solve any doubtful issue, there was no error. 15. —Same—legitimate Argument. On a trial for murder where it did not appear in the bill of exceptions by a certificate of the trial judge that the argument of the State’s counsel was not made in connection with the testimony, there was no error. 16. —Same—Bill of Exceptions—Discussing Testimony. Where on trial for murder it appeared from the bill of exceptions that the counsel for the State was arguing from the testimony. with reference to an account which was in evidence, there was no error when he insisted in his argument that this account was a valid and ligitimate charge against defendant. 17. —Same—Contradictory Statement. Where on trial for murder the State’s counsel commented on the testimony of defendant on a former trial and that he was contradicted thereby in his testimony on the trial, and the certificate by the judge to the bill of exceptions did not show that the defendant had not so sworn, there was no error. 18. —Same—Examining—Trial—Evidence. On a trial for murder where the examining-trial-evidence was used by defendant’s attorney in cross-examining the State’s witness, holding the same in the hand and asking questions from it as to what the witnesses had said on the ex-aming trial, there was no error in the argument of the district attorney in discussing this matter; especially where the trial judge declared that such argument had no reference to what was sworn to by said witnesses on a former trial. 19. —Same—Responsive Argument—Certificate of Judge. Where on a trial for murder the certificate of the judge to the defendant’s bill of exceptions showed that the argument of the State’s counsel was responsive to an argument made by defendant’s counsel with reference to a chair and suspenders offered in evidence, there was no error. 20. —Same—Charge of Court—Self-Defense—Reasonable Force. Where on trial for murder, according to defendant’s own testimony, he and deceased had a struggle prior to the time he stabbed him with his knife; that .deceased was the stronger, and ultimately in order to prevent him from getting a pistol out of the dresser-drawer, defendant bad to stab him, there was no error on part of the court to submit in his charge the question of necessary and reasonable force before the homicide would be justified. 21. —Same—Charge of Court—Error Must Be Shown. On a trial for murder where no special criticism is made of a charge on murder in the second degree and the same is apparently sufficient, there was no error. 22. —Same—Charge of Court—Self-Defense. Where on trial for murder the evidence showed that the defendant and deceased had a struggle prior to the time he stabbed him with his knife and that defendant in an effort to. prevent deceased from getting a pistol stabbed him; and the court in his charge on self-defense distinctly told the jury that it was not necessary that there should be actual danger, provided the defendant acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and that if defendant took the life of deceased in the effort of preventing him from getting a pistol to inflict death or serious bodily injury upon defendant to acquit him, etc., there was no error. 23. —Same—Appearance of Danger. On a trial for murder where the court charged the jury that defendant could act upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and then instructed the jury if deceased was making an attack on defendant, or attempting to procure a pistol at the time, with the intention or apparent intention of inflicting death or serious bodily injury on him, appellant would have a right to slay deceased; and where appellant’s testimony showed that deceased was endeavoring to get a pistol, that a struggle ensued in which deceased tore defendant’s shirt; there was no point in the objection to the charge that it required the jury to believe that deceased at the time must have been-really making an attack on appellant. 24. —Same—Charge on Manslaughter. See opinion for facts authorizing a charge on manslaughter. 25. —Same—Charge of Court—Imperfect Self-Defense—Harmless Error. On a trial for murder where the court’s general definition of manslaughter simply enlarged appellant’s right of defense, it could not interfere with appellant’s right of self-defense, or antagonize any portion of the court’s charge on that subject; although the charge may not have been applicable to the facts of the case. 26. —Same—Record on Appeal—Affidavits—Practice on Appeal. Where upon an appeal from a conviction of murder affidavits were filed in the Court of Criminal Appeals, showing that a certain witness had recanted her testimony and that she testified falsely at the trial, the same constitutes no part of the record on appeal and is not subject to review.
49 Tex. Crim. 563Lamar v. State (1906)
The opinion states the case.
49 Tex. Crim. 569Rice v. State (1906)
The opinion states the case.
49 Tex. Crim. 588Vela v. State (1906)
The opinion states the case.
49 Tex. Crim. 591McKinney v. State (1906)
1. —Murder in First Degree—Evidence—Res Gestae—Declarations and Acts of Defendant. On trial for murder the State was permitted to prove that on the night of the homicide, and prior thereto, defendant and another person were talking at a certain .place and in conversation called the name of M., who being near by and hearing his name called started towards defendant and said, “What is that about M. ?” Defendant answering “ You have been talking about ladies of this town, and have talked about the Walker boys, and you have got to leave this town,” M. replying, “ You are a liar”; that then defendant slapped M. in the face and said, “Hike,” and that M. ran in the direction of W. and M.’s restaurant and defendant shot at him twice with a pistol as he ran off. In this connection it" had been shown that defendant had previously threatened to run said M., the deceased, and his brother out of town, or he would kill them. Held res gestae and admissible. 2. —Same—Evidence—Animus—Conspiracy. Upon a trial for murder there was no error to permit the State to show the animus actuating a person acting with the defendant in the commission of the homicide by testimony of ill feeling existing between said person and the deceased prior thereto; the evidence showing that the parties were acting together at the time of the homicide. Besides the bill of exceptions did not show what the character of this animus was. 3. —Same—Evidence—Bill of Exceptions—Declaration of Defendant. Upon a trial for murder where the State was permitted to prove a declaration of the defendant made prior to the homicide some two hours, while others were holding his arms, to the effect that if they had let him alone he would have killed all of them; and the trial judge certified that this evidence was admitted to show that defendant had just had trouble with deceased and another, to show the state of defendant’s feeling toward deceased, and that this, statement had been made by defendant after a gun had been taken from him. Held that said statement comprehended the deceased; although the bill of exceptions did not disclose this fact. 4. —Same—Evidence—Co-Conspirator—Arms. On trial for murder it was competent for the State to show that the witness sold a pistol to a person who acted together with the defendant in the homicide, and it made no difference where he got it, or whether he surrendered it to the sheriff or the latter took it from him. 5. —Same—Charge of Court—Principals. On a trial for murder where the court’s charge defining the law of principals was in accordance with the statutes and applicable to the case, there was no error. 6. —Same—Refused Charge—Intent to Alarm—Principals. On trial for murder where the evidence showed that the defendant and one P. were acting together, and fired in the direction of the deceased and where he was ultimately killed, and kept up firing until they exhausted their ammunition, and then returned for more ammunition and continued firing until they killed deceased, there was no error in refusing a special charge submitting the theory that if they were only shooting to alarm deceased; or that if P. acted without justification and defendant did not know of such intent on the part of P. that defendant would not be guilty as principal, and to acquit him. 7. —Same—Self-Defense—Charge of Court. If it be conceded that defendant who was charged with murder was entitled to a charge on self-defense, the same was correct. 8. —Same—Charge of Court—Voluntarily Engaging in Combat. See opinion for facts which authorized the court to give a charge predicated on the proposition of defendant voluntarily engaging in combat knowing that it might or probably would result in the death or serious bodily harm of his adversary. 9. —Same—Charge of Court—Retreat—Continuing Danger. Upon a trial for murder where the evidence showed that it was not necessary for defendant and his co-conspirator to arm themselves with ammunition, return to the scene of the difficulty and renew the shooting to protect themselves from danger, or apparent danger, but that the deceased and his companions were retreating and made no demonstrations to renew the .difficulty, the court was not required to charge on the theory that the defendant had the right to return and renew the shooting. [Motion for rehearing overruled without written opinion.—Reporter.]
49 Tex. Crim. 596Brundige v. State (1906)
1. —Assault With Intent to Murder—Evidence—Rebuttal. Where upon a trial with intent to. murder the defendant showed that he carried a pistol because his life was threatened by third parties, and on cross-examination the State asked the defendant’s witness if there was a woman in the ease, to which he replied affirmatively, the defendant should have been permitted to ask the witness whether or not defendant had anything to do with the woman in the case, and to show that he had nothing whatever to do with the difficulty with such third parties with the woman, and that the difficulty between appellant and prosecutor had nothing to do with appellant carrying a pistol. 2. —Same—Evidence—Cross-Examination. Upon a trial of assault with intent to murder it was competent for defendant in cross-examination of the State’s witness, to have shown that the note which it was claimed prosecutor owed and which defendant was trying to collect from him, had not been paid at the time of the difficulty. 3, —Same—Evidence—Impeachment of Witness. Upon a trial for assault with intent to murder it was not competent for the defendant to lay a predicate for impeachment of State’s witness upon a collateral issue, to wit: that the witness denied that he had stolen a watch; and then attempt to contradict this testimony by another witness. 4, —Same—Evidence—Religious Belief of Witness. Where upon trial for assault with intent to murder the defendant offered to prove that the prosecutor had said that he did not believe there was any Heaven or Hell, or any God, and the court refused to admit such testimony, there was no error. 5. —Same—Hearsay Evidence. Upon trial for assault with intent to murder, there was no error in excluding the testimony of defendant’s witness to the effect that he had been approached by persons with a message from prosecutor that if he would pay him $50 or $60, he would leave the country and not testify against defendant. This matter could only have been used in the event said State’s witness had denied it first, as a predicate for impeachment. 6. —Same—Charge of Court—Credibility of Witness. See opinion for facts which should have been limited by the court’s charge to the credibility of the State’s witness.
49 Tex. Crim. 600O'Shennessey v. State (1906)
Tried below before Hon. W. R Butler. Appeal from a conviction of a violation of the local option law; penalty, $60 and fifty days imprisonment in the county jail. The opinion states the case.
49 Tex. Crim. 601Harding v. State (1906)
1. —Theft of Horse—Bailment—Other Offenses—Harmless Error. Where in a prosecution for theft defendant on cross-examination was asked whether he stole a coat from a certain person at a certain time, and whether he remembered what he stole the last two times he was setit to jail, and he replied that he never stole anything, there was no error although the method of examination was improper. 2. —Same—Harmless Error. While it was not a proper method of examination to ask a witness whether appellant swapped them a farewell for a horse; it was evidently a piece of pleasantry not calculated to injure appellant’s rights. 3. —Same—Argument of Counsel—Special Charge. While it was improper argument for State’s counsel to offer to bet the jury his gun and dog against five cents if they turned defendant loose, before six days the grand jury would have him indicted for stealing another horse; in the absence of a special charge and considering said remarks under the circumstances there was no error. A.—Same—Definition of Offense—Charge of Court. Where appellant was charged with theft as bailee of property, it was improper for the court to define" theft generally, yet the giving of such charge would not be reversible error; the definition of theft by bailment having also been submitted. 5.—Same—Case Stated—Implied Consent—Bailment. Where in a prosecution for theft or property under bailment the evidence showed an implied consent to the taking, a bailment of the property was created and a conversion thereafter constituted theft.
49 Tex. Crim. 604McElroy v. State (1906)
Tried below before Hon. E. E. West. Appeal from a conviction of a violation of ■ the local option law; penalty, a fine of $60 and thirty days confinement in the county jail. The opinion states the case.
49 Tex. Crim. 607McCutcheon v. State (1906)
The facts are stated in the opinion.
49 Tex. Crim. 610Isom v. State (1906)
Appeal from the County Court of Bell. Tried below before Hon. W. R. Butler. Appeal from a conviction of a violation of the' local option law; penalty, a fine of $50 and forty days confinement in the county jail. The opinion states the case.
49 Tex. Crim. 612Ritz v. State (1906)
The opinion states the case.
49 Tex. Crim. 613Patterson v. State (1906)
The charge of the court on the protection of property is as follows: “If you find that defendant killed said Hodgkinson, yet if you further find that when he killed him, said Hodgkinson was in the very act of making an unlawful and violent attack upon the habitation of Alice Sharp, then the defendant had the right to repel such attack by using all such force as to him, from his standpoint, seemed reasonably necessary to repel such attack, and if he used no greater force than to him seemed reasonably necessary to repel such attack, then he would be justified in such killing and you will find him not guilty; but such attack by Hodgkinson if any he made, upon the habitation of Alice Sharp would not justify the defendant in killing said H. unless you find from the evidence that he did the killing while H. was in the very act of making such attack upon said habitation.” The opinion states the case.
49 Tex. Crim. 617Thweatt v. State (1906)
1. —Giving Away Whisky on Election Day—Information. It is necessary under section 120, Act of the Twenty-eighth Legislature, page 154, prohibiting the sale, etc., of liquor, etc., to negative the provisos therein contained. 2. —Same—Duplicitous Pleading. Where the information charged defendant with giving away whisky on election day, and did inform divers persons naming them, of the whereabouts of whisky at and near the poll of the voting precinct, a motion to quash should have been sustained, the information being duplicitous in setting out different offenses, between different parties in the same court. 3. —Same—Motion to Elect. Where in a prosecution for giving away intoxicating liquor on election day the evidence showed that the transactions were distinct and under different circumstances than those charged, and occurred at different times and places, a motion to elect should have been sustained. 4. —Same—Information. In a prosecution for giving away liquor on election day, an information that the election was held in a certain precinct in M. County, for the purpose of determining whether or not intoxicating liquors should be sold in said county, is bad. Following Reuter v. State, 43 Texas Crim. Rep., 572.
49 Tex. Crim. 620Billingsley v. State (1906)
The opinion states the case.
49 Tex. Crim. 622Armsworthy v. State (1906)
The facts of this case are stated in the opinion of the court on former appeal, see 13 Texas Ct. Rep., 697.
49 Tex. Crim. 623Gabler v. State (1906)
The opinion states the case.
49 Tex. Crim. 629Moore v. State (1906)
1.—Murder in Second Degree—Special Venire—Statutes Construed—Talesmen Jury Commissioners. The Act of the Twenty-ninth Legislature, page 17, amending the special venire law, added articles 3159a and 3175a to the Revised Civil Statutes, and article 647a to the Code of Criminal Procedure, and does not in any manner conflict with the previous law in regard to petit jurors drawn for service during the ensuing term; the only change in this respect is that it requires the jury commissioners to draw what is termed in this act a special venire list, which is an additional list of names to serve on special venires exclusively; and these cannot be called into service until the jurors summoned for regular service have been exhausted either by serving one week in the district court as petit jurors and one on the special venire or twice on special venires; when this has been done it is provided that the clerk shall then resort to special venire jurors from the list selected specially for that purpose; the act requiring the exhaustion of the regular petit jurors before resorting to those specially drawn for special venire service as talesmen. 2. —Same—Jury and Jury Law—Special Venire—Judge. Where upon a trial for murder a special venire of sixty men was ordered and drawn from the regular jury drawn for said term by the jury commissioners at a previous term, and the venire facias placed in the hands of the sheriff, and after about forty-five of the said jurors had been summoned, the court of its own volition ordered this venire quashed, summoned three commissioners and had them draw a list of one hundred and thirty-five names from which the jury was selected which tried defendant; appellant not being present when the -matters occurred, but when afterwards asked if he had any objections to said commissioners, replied in the negative; the Act of the Twenty-ninth Legislature amending the law of drawing special venires, having gone into effect after the regular jurors for said term had been drawn; the court explaining that these venire-men had threatened to claim their exemption. Held, that the action of the court in quashing' said venire was error. 3. —Same—Disqualification of Jurors—Mistake of Clerk. The provision of the jury law which provides that the clerk shall prevent the drawing of the names more than twice does not per se disqualify the jurors, although the clerk may have overlooked the law, or committed a- mistake in drawing the names; the jurors could claim their exemption if erroneously summoned, but the court can not in advance exclude the entire list, or any number of jurors on the list, on account of the mistake of the clerk, or that they had been previously twice summoned. 4. —Same—Query. See opinion of court for questions not decided if an objection had been raised by defendant to the venire, or if the jurors had claimed their exemption.
49 Tex. Crim. 633Thomas v. State (1906)
1. —Murder in First Degree—Indictment—Challenge to the Array—Grand Jury. Upon a trial for murder, a challenge to the array of the grand jury was not well taken, where defendant failed to make a request at the time to be brought from jail into court so as to challenge the array. But he could nevertheless move to quash the indictment on account of race discrimination. 2. —Same—Race Discrimination—Formation of Grand Jury—Special Venire. The rule is, under the decisions of the Supreme Court of the United States, construing the Fourteenth Amendment of the Constitution of the United States, that while a negro charged with crime is not entitled to a negro jury, or to a mixed jury, yet the Constitution guarantees him against any discrimination against the negro race in the selection of a jury by whom he is to be tried. 3. —Same—Case Stated. Where upon trial for murder, the record showed that while no negroes were on the jury commission who were appointed for the selection of grand and petit juries who passed upon defendant’s case, but the judge instructed the jury commissioners not to discriminate against the negro race in the selection of jurors; and that the commissioners evidently had this in mind and endeavored to comply with the injunction of the court in this respect; and that it was a matter of difficulty with them to determine on the basis of a pro rata representation as between the whites and negroes, what pro rata of negroes were qualified as jurors. Held, that no discrimination was shown, although no juror of the negro race was drawn on defendant’s jury, and although the jury commissioners may not have given the negro race a full pro rata with the white race in the selection of the grand and petit jurors, as long as they fairly and honestly endeavored to discharge their duty. 4. —Same—Democrat—Republican—Politics—Primaries. Where upon trial for murder upon motion of the defendant to quash the indictment and writ of special venire on the ground of race discrimination, the evidence showed with reference to the Democratic primaries, that the negroes were allowed to vote in the primary election, if they were Democrats, and were not excluded from voting because they were negroes, the same was not material to the issue. , 5. —Same—Continuance—Diligence—Immaterial Testimony. Where upon trial for murder the record showed upon appeal that the process for the absent witnesses was returned “ not found ” and that no other process was applied for there was no diligence. Besides the testimony of the absent witnesses was the same as testified to by defendant and other witnesses, and was not sufficiently material for a reversal of the judgment. 6. —Same—Dying Declarations—Predicate. Where upon trial for murder, the record showed upon appeal that deceased in the morning made some expressions indicating that he expected to get well, but in the afternoon of the same day declared that he was going to die, and did die, about twelve hours thereafter, and that he made his statement when he was conscious of approaching death, the predicate was sufficient to admit his dying declaration. 7. —Same—Charge of Court—Murder in Second Degree—Unlawful. Upon trial for murder where the court had instructed the jury upon malice and implied malice, and then instructed them if they believed defendant shot- and killed deceased with implied malice as before defined and explained, to find him guilty of murder in the second degree, it was not necessary to tell the jury that the killing must be unlawful. 8. —Same—Charge of Court—Manslaughter—Adequate Cause. Where upon trial for murder, the evidence did not raise any statutory adequate cause, and the court nevertheless defined adequate cause under the statutes and authorized the jury to consider what occurred at the time, and also all the facts and circumstances bearing on the provocation, etc., there was no error. 9. —Same—Charge of Court—Cooling Time. Where upon trial for murder, the theory of the defense was that the defendant acted in self-defense and that deceased and his companion made two separate attacks upon him some twenty or thirty minutes apart; and according to the State’s theory there was no provocation constituting adequate cause; yet if defendant nevertheless shot too hastily and really did not act in self-defense and was excited by what had occurred before, this might be manslaughter; still there was no necessity for the court to have charged on cooling time, as he instructed the jury that they could look to all the facts and circumstances in order, to emphasize or intensify the provocation at the time. Neither was there any error in the court’s charge that the provocation must not be given by any person other than the party killed, the court having in another portion of his charge authorized the jury to view the act and conduct of both of said parties, who were acting together as one on both occasions. 10. —Same—Self-Defense—Charge of Court. See opinion for charge of court on self-defense on the appearance of danger from the defendant’s standpoint which was held sufficient. 11. —Same—Evidence—Confession—Charge of Court. Where upon trial for murder the court instructed the jury not to consider any statement made by defendant unless they found he was first warned, and that the same was voluntarily made, there was no error.
49 Tex. Crim. 645Green v. State (1906)
1. —Murder in Second Degree—Change of Venue—Bill of Exceptions. Upon trial for murder where a motion for change of venue was overruled, and the bill of exceptions in connection with the testimony did not properly reserve the point at issue, the same could not be reviewed; and especially where appellant in his brief did not rely on this matter. 2. —Same—Continuance—Bill of Exceptions—Judgment. Upon an appeal from a conviction of murder, an exception in the judgment overruling the motion for continuance cannot be considered, but must be presented by bill of exceptions. 3. —Same—Special Venire. Where upon appeal from a conviction of murder, the bill showed that the venire was drawn out of a list of regular jurors for the term at the preceding term of the court, there was no error. 4. —Same—Jury and Jury Law—Peremptory Challenge. Upon appeal from a conviction of murder, where the bill of exceptions showed that the juror whom the appellant challenged peremptorily was qualified; and that the juror whom he accepted instead of the challenged juror was not shown to be partial or unfair, there was no error. 5. —Same—Enforcing of Rule Against Witnesses—Rebuttal—Discretion of Court. Upon appeal from a conviction of murder, where it was not shown that the court had abused his discretion in permitting witnesses for the State to testify in rebuttal who had not been placed under the rule, there was no error. 6. —Same—Impeaching Testimony—Materiality—Bill of Exceptions. Upon an appeal from a conviction of murder, where the appellant took his exceptions to the testimony in the statement of facts but did not embrace the same with that completeness that was necessary if he had taken a separate bill, the Court of Criminal Appeals will not go through the entire record of the statement of facts in order to complete his bill. However, the testimony excepted to was material and the State had the right to impeach appellant’s witness upon this issue. 7. —Same—Charge of Court—Practice. There was no error in the courts method in charging the law of murder in the second degree in two distinct paragraphs. 8. —Same—Limiting Testimony—Assuming Pacts. Upon trial for murder, where the charge of the court, in limiting the testimony to the credibility of certain witnesses, assumed that the statements were made by the defendant’s witnesses and only submitted to the jury the question as to whether or not the testimony of State’s witnesses was in conflict with that of defendant’s witnesses, the same was reversible error. 9. —Same—Charge of the Court—Murder in Second Degree—Manslaughter. Where upon trial for murder the defendant was convicted of murder in the second degree, the court charged in effect that the burden was on defendant to show that he was only guilty of manslaughter before he could be acquitted of murder in the second degree, there was error; and this, although a subsequent instruction charged the jury that if they had a doubt as between manslaughter and murder in the second degree to give defendant the benefit of the doubt and convict him of manslaughter.