51 Tex. Crim.

Volume 51 — Texas Criminal Reports

184 opinions

51 Tex. Crim. 1Williams v. State (1907)
The opinion states the case.
51 Tex. Crim. 3Jones v. State (1907)
Local Option—Motion for new Trial—Reinstating Judgment. Upon motion for new trial in a conviction for a violation of the local option law, which motion was granted, it was reversible error to reinstate the judgment of conviction.
51 Tex. Crim. 3Fouts v. State (1907)
The evidence showed that the defendant was a medical specialist having his office and headquarters in the City of Dallas, and that he made periodical trips to other counties to practice his profession, and where he would remain for about two weeks at each place, establishing himself at a hotel and having his place of business at his room in said hotel; that an assistant would go out from the said hotel and ascertain the names of persons afflicted with chronic disease, call…
51 Tex. Crim. 5Scott v. State (1907)
Assault to Rape—Intent—Force. Where upon trial for assault to commit rape the evidence showed that the female assaulted was over 15 years of age; that there appeared no fraud or threats: nor sufficiently showed that defendant intended to force his desires to the extent of overcoming all resistance that might be offered by the assaulted female, the conviction could not be sustained.
51 Tex. Crim. 7Porch v. State (1907)
1. —Theft of Hog—Statutes Construed—Examining Trial—Waiver. Under article 338, Code Criminal Procedure, the accused may waive a trial and consent for the magistrate to require bail of him; but the examining court may, nevertheless, examine the witnesses and transfer the testimony to the clerk of the proper court; and such testimony is admissible on final trial, if the witness be dead.' 2. —Testimony at Examining Trial—Justice of the Peace—Constitutional law. Where upon trial for the theft of a hog, the State introduced in evidence the written testimony of a witness taken before a magistrate in an examining trial, in the presence of defendant (who was accorded opportunity to cross-examine witness), after he had waived examination; said witness having since died, and which testimony proved up the theft; and was of an admissible character before said justice, the objection to said testimony by defendant upon trial in the district court, on the ground that the same was inadmissible because the witness did not confront him on trial, was untenable. 3. —Same—Constitutional law—Confronting of Witness—Judicial Construction. Where the rule of construction under former State Constitutions supported the conclusion that where the defendant had been once confronted with the witnesses and had a chance of examining them, that thereafter the testimony taken down in an examining trial could be used upon the subsequent trial in chief against the defendant, w'here the witness was dead or absent from the State, then the present Constitution must necessarily be held to have been adopted with the judicial construction theretofore placed upon this clause in said previous Constitutions. Overruling Cline v. State, 30 Texas Crim. Rep., 320. Davidson, Presiding Judge, dissenting. 4. —Same—Declaration of Witnesses Out of Court—Animus—Absence of Defendant. Upon trial for the theft of a hog, there was no error in admitting in evidence the declarations of witnesses to show their bias, prejudice or favoritism, although not made in the presence of defendant and out of court.
51 Tex. Crim. 12Crowson v. State (1907)
The opinion states the case.
51 Tex. Crim. 15Holt v. State (1907)
1. —Murder in .Second Degree—Charge of Court—Manslaughter—Self-Defense. Where upon trial for murder the theory of the State claimed unprovoked murder, and the defense threatening demonstrations by the deceased toward defendant and self-defense, and the court in his charge gave the statutory definition of manslaughter and confined the provocation to the time of the killing; there being no former grudges, etc., shown between the parties, and the homicide occurred upon a sudden altercation, the charge was not too restricted, 2. —Same—Statutory Adequate Cause—Mitigating Circumstances—Implied Malice.. Where upon trial for murder the court defined the statutory adequate causes in connection with his charge on manslaughter, and it was doubtful from the evidence whether manslaughter was in the case, it was not necessary to define by illustration the statutory adequate causes, nor was the court called upon to define mitigating circumstances more than was done in defining implied malice. 3. —Same—Charge of Court—Self-Defense—All the Facts. Upon trial for murder there was no error in the court’s charge that if the jury from all the facts and circumstances in evidence, as viewed from defendant’s standpoint, found that at the time of the killing it reasonably appeared to defendant that the deceased was about to make an unlawful and violent attack upon him, etc., instead of using the word “any” instead of “all.” 4. —Same—Acts and Words of Bystanders—Bill of Exceptions. Where upon trial for murder, it was claimed that the sister of deceased used exciting language and conduct in the presence of the jury, and the bill of exceptions did not sufficiently show that what transpired was of a character calculated to unduly influence the jury, the same cannot be reviewed; although the court should have prevented any scenes of disorder during the trial. 5. —Same—Interruption by Bystander. Where upon trial for murder, during the argument of one of defendant’s counsel, a bystander interrupted him by giving his version of the evidence, and the court immediately directed the party to keep quiet and there was no exception taken to said party’s remarks, there was no error; besides the defendant could have introduced testimony to have controverted said remarks if necessary. 6. —Same—Misconduct of Jury—Verdict by lot. Where upon motion for new trial after a conviction of murder, the affidavit of two of the jurors claimed that the verdict was reached by lot, and nine of the jurors testified that no such agreement was made, the court was authorized under the testimony to determine that the verdict was not reached by lot.
51 Tex. Crim. 20Burnett v. State (1907)
The opinion states the case.
51 Tex. Crim. 24Blackwell v. State (1907)
1. —Rape—Female Under Age of Consent—Several Counts in Indictment— Election. Where upon trial for rape upon a girl under 15 years of age, the indictment contained five counts alleging different dates, and the court charged that if the jury should find upon a certain date or within twelve months thereof that the defendant committed rape upon said girl they should convict; and there was no motion by the defendant to require the State to elect and the court did not elect any particular account in submitting the case, and no objection was urged to the evidence, a general verdict was sustained. 2. —Same—Special Venire—Talesmen. Where upon trial for rape, the court instructed the. sheriff to summon tales-men after the special venire had been exhausted, there was no error. 3. —Motion for new Trial—Challenge for Cause—Bill of Exceptions. Where upon trial for rape there was no bill of exceptions reserved to the action of the court in overruling defendant’s challenge for cause to one of the jurors, and the matter is not otherwise verified in the motion for new trial, the same could not be reviewed. 4. —Limiting Offense to Specific Act—Election. Where upon trial for rape, there was no election upon what count the defendant should be tried, and the court submitted all the counts, there was no error in the court’s charge in failing to limit the jury to one specific act. Another question would arise if a conviction was sought hereafter for any of the acts set out in the indictment. 5. —Same—Sufficiency of the Evidence—Age of Prosecutrix. Where upon trial for rape, the evidence showed a plain case of rape on several different occasions upon a girl under the age of 15, and showed with sufficient certainty that she was under this age, even at the time she testified, the proof sustains the conviction,
51 Tex. Crim. 27Roberts v. State (1907)
The opinion states the case.
51 Tex. Crim. 29Flournoy v. State (1907)
The opinion states the case.
51 Tex. Crim. 32Mays v. State (1907)
1. —Carrying Pistol—Former Acquittal—Dismissal—Jeopardy. Where upon trial for unlawfully carrying a pistol, the parties went to trial, and after the State had introduced one witness it was discovered that defendant had not entered a plea to the charge and the case was dismissed over the objection of defendant on motion of the county attorney; and subsequent thereto a new information was filed; held, defendant could not interpose the proceedings in the former case as a plea in bar. 2. —Same—Entering Plea—Bill of Exceptions—Motion in Arrest. By the amendment to article 904, Code Criminal Procedure, in the absence of some exception in the court below to the failure to enter the plea, it will be presumed in the appellate court that the plea was entered in the court below; but the failure to plead in the court below can be taken advantage of by bill of exceptions, motion for new trial or by motion in arrest of judgment. 3. —Same—Issue Joined—Plea Entered. No trial can be had in a criminal case in the absence of an issue joined between the State and the defendant, and this can only be done by the entry of the plea on the part of the defendant to the charge preferred and read against him. 4. —Same-Traveler—Deflecting From Journey. Where upon trial for unlawfully carrying a pistol, the evidence showed that the defendant merely stopped at a lunch counter to eat a meal, the same was not such a deflection from his journey home to authorize a conviction.
51 Tex. Crim. 35Acrey v. State (1907)
Simple Assault—Accidental Injury—Statutes Construed—Charge of Court. Where upon trial for aggravated assault, the defendant was convicted of simple assault, and where the defendant claimed under the evidence that he did not intend, to injure but accidentally cut the prosecuting witness, it was error to give in charge article 588, Penal Code, that if the injury was inflicted then the presumption was that the defendant intended it and it rested with him to show accident or innocent intention, etc., as this destroyed the defense. Henderson, Judge, dissenting.-
51 Tex. Crim. 37Hawkins v. State (1907)
1. —local Option—Charge of Court—Facts Constituting Sale. Where upon trial for a violation of the local option law the evidence showed that the defendant first concluded to contribute to paying out certain whisky at the express office, and then decided not to do so, and then took a dollar from one of the other parties, got the whisky and delivered it, the court correctly charged that if the defendant assisted in such sale to find him guilty. 2. —Same—Misdemeanor—Principal—Accomplice. Where upon trial for a violation of the local option law the evidence showed that the defendant assisted others in selling the whisky, he was either a principal or an accomplice and could be prosecuted and convicted as a principal.
51 Tex. Crim. 39Skeen v. State (1907)
The opinion states the case.
51 Tex. Crim. 41Fannin v. State (1907)
1. —Robbery—Variance—Allegation and Proof. Upon a trial for robbery where the indictment alleged that defendant took from the prosecutor one ten dollar bill, and the evidence showed that he compelled the prosecutor to deliver up the ten dollar bill and gave him back $8; and that the prosecutor threw the bill on the floor and defendant compelled another to pick it up and get the change, there was no variance. 2. —Same—Moral Turpitude—Former Conviction—Evidence. Upon trial for robbery it was inadmissible, as original testimony against the defendant of moral turpitude, to permit a witness to state that defendant told him that he had been previously charged and convicted of burglary. 3. —Same—Charge of Court—Taking Money by Force in Payment of Debt. Where upon trial for robbery the evidence showed that the defendant had no right to any specific property of the prosecutor; that the latter owed him a debt for wages, the amount of which was even controverted, and defendant simply drew a pistol and made the prosecutor pay him what defendant claimed was due, the court correctly charged that defendant did not have the right to extort from prosecutor money in payment of a debt, by violence, etc. 4. —Same—Charge of Court—Assault. Where upon trial for robbery there was evidence that prosecutor assaulted defendant with a stick, whereupon the latter drew his pistol in self-defense, and not to coerce him to give up his money, the court should have charged on this phase of the case.
51 Tex. Crim. 46Archer v. State (1907)
The opinion states the case.
51 Tex. Crim. 47Hargrove v. State (1907)
Carrying Pistol—Misconduct of Jury. Where upon trial for unlawfully carrying a pistol, the jury in their retirement discussed the defendant’s character as an old law breaker, etc., the verdict must be set aside, although the defendant pleaded guilty; the maximum fine having been assessed.
51 Tex. Crim. 48Covington v. State (1907)
The opinion states the case.
51 Tex. Crim. 52Irvin v. State (1907)
1. —Unlawfully Carrying a Pistol—Other Offense—Evidence. Upon a trial for unlawfully carrying a pistol, testimony that the witness believed that the defendant was drunk when he arrested him was inadmissible; although this in view of the minimum punishment might not have been reversible error. 2. —Same—Evidence—Altercation—Traveler. On trial for unlawfully carrying a pistol, it was permissible to introduce evidence of a certain quarrel which defendant had, to show defendant’s intent in carrying the pistol, and that he was not simply carrying it home. 3. —Same—Charge of Court—Loitering on Way. Where on trial for unlawfully carrying a pistol the evidence showed that defendant, who claimed to carry the pistol to his home, deflected from his course to send a doctor to his children, this would not render him amenable to the law, and a charge that if defendant loitered on the way he would be guilty, without further explanation, was reversible error.
51 Tex. Crim. 54Binkley v. State (1907)
1. —Theft of Horse—Confession—Warning—Age of Defendant—Burden of Proof. Where upon trial for the theft of a horse, the evidence showed that defendant was 11 years of age; that the deputy sheriff warned him; that there was no particular time shown when said warning occurred with reference to the confession made to said deputy and the sheriff, and that it was not shown that defendant had in mind the warning at the time of his confession, the burden was on the State to show the admissibility of such confession. 2. —Same—Capacity of Defendant to Understand Criminal Intent—Non-Expert Witness. Where upon trial for the theft of a horse, the evidence did not show that the non-expert witnesses detailed any facts as to the capacity of the defendant to form and entertain a criminal intent as to said theft, they were not authorized to give their opinion as to "said capacity. 3. —Same—Arrest—Warning—Confession. Where upon trial for theft of a horse, the evidence showed that the officer had in effect taken charge of defendant by taking hold of the horse, and that he would not have permitted the parties to escape, there was enough to show that defendant was in custody, and that his confession could not be introduced unless he was legally warned. 4. —Same—Capacity of Defendant to Commit Offense—Charge of Court—NonAge. Where upon trial for the theft of a horse, the evidence showed that the defendant was about 11 years old, the court in his charge should have placed the burden of proof as to defendant’s capacity to commit the offense upon the State; the non-age of defendant having been shown, it was incumbent on the State to show that he knew that he was acting criminally and was subject to punishment.
51 Tex. Crim. 58Nalley v. State (1907)
The opinion states the case.
51 Tex. Crim. 61Beard v. State (1907)
The opinion states the case.
51 Tex. Crim. 63Ex Parte Fischl (1907)
1. —Extradition—Forgery—Indictment—Sufficient Averment. Where upon extradition proceedings the charge of forgery was based upon a certain weigli-biil or invoice, the same showed upon its face a valid instrument as the subject of forgery, and was sufficient for the purpose of extradition. 2. —Same—Treaty—Fugitive’s Bight of Beturn—New Complaint. Where a party has been extradited and the indictment or complaint forms the basis of an extraditable offense under the treaty between the demanding and the asylum countries, the fact that the complaint or indictment is quashed in the demanding state will not authorize the extradited party to demand his return to his asylum in a foreign country, if the demanding State desires to hold him over for trial on a new complaint for the same offense.
51 Tex. Crim. 66Bryant v. State (1907)
1. —Manslaughter—Motion for new Trial—Bill of Exceptions in Record. Where upon appeal no admitted or rejected testimony is pointed out even in motion for new trial, the court will not examine a voluminous record in order to discover the bills of exception to the admission or rejection of testimony. 2. —Same—Charge of Court—Self-Defense—Statutes Construed. A homicide may be justifiable under article 677 of the Penal Code in the protection of the person against any other unlawful and violent attack besides those mentioned in the preceding articles 675-6, which justify a homicide where the attack endangers life or threatens serious bodily injury. 3. —Same—Charge of Court—Attack Other Than One Which Threatens Life or Serious Bodily Injury. Upon trial for murder, where defendant’s own testimony would appear to base his right of self-defense on the necessity of protecting himself against an attack which threatened his life or serious bodily injury, and that deceased was not at the time he was shot in the very act of attacking defendant, the court was not required to charge article 077 of the Penal Code with reference to an attack or threatened attack not provided for in articles 675-6, which latter the court submitted. 4. —Misconduct of Jury—Discretion of Court. Where after conviction for manslaughter, defendant’s motion for new trial set up as misconduct of jury the discussion by them of testimony not warranted under the charge, which was controverted by the State, and the court heard testimony pro and con and held there was nothing that showed that these matters were used to the prejudice of defendant, there was no error.
51 Tex. Crim. 71Mitchell v. State (1907)
1. —Murder in Second Degree—Character of Deceased—General Reputation. Where upon trial for murder the State’s witness first stated that he was not acquainted with the character of deceased but could speak personally, that he had never heard it discussed; however, on further examination the witness stated that he was sufficiently advised of the general character of deceased to say what that character was as to being a peaceful quiet man or as to being a dangerous man, there was no error in permitting the witness to state such character. 2. —Same—Argument of Counsel—Harmless Error. Where upon, trial for murder the State’s counsel stated in his argument that the State’s witness after having had occasion to speak of and investigate the character of deceased, etc., yet the testimony showed that the witness felt prepared to speak as to the general reputation of the deceased, the error, if such, was harmless. 3. —Same—Charge of Court—Murder in Second Degree—Manslaughter. Where upon trial for murder the evidence showed that there was no adequate cause in the case, the court correctly charged on murder in the second degree and not on manslaughter. 4. —Same—Charge of Court—Affirmative Character of Charge—Self-Defense. Where upon trial for murder the evidence did not show any such circumstances of immediate and.pressing danger by anything said or done by deceased which would cause the defendant to have any reasonable apprehension to his life or serious bodily injury, and that he shot down deceased in pursuance of a previously formed design, the court was not required- to submit an affirmative charge on threats in connection with the theory of self-defense.
51 Tex. Crim. 77Foster v. State (1907)
The opinion states the case.
51 Tex. Crim. 79Ex Parte Andrews (1907)
From Harris County. Original application for habeas corpus for release from a commitment for contempt for refusing to answer certain questions propounded by the grand jury. The opinion states the case.
51 Tex. Crim. 89Cole v. State (1907)
Tried below before the Hon. N. R. Lindsey. Appeal from a conviction of manslaughter; penalty, four years imprisonment in the penitentiary.
51 Tex. Crim. 99Warren v. State (1907)
¿heft—Felony—Charge of Court—Statutes Construed—Part Owner. Where upon trial for theft over the value of $50, the evidence of the defense showed that defendant was a part owner of the property, the court correctly charged that if the same was partnership property between prosecutrix and defendant to acquit him; the charge was more liberal than article 865, Penal Code, with reference to a part owner of said property.
51 Tex. Crim. 100O'Neal v. State (1907)
1. —Occupation Tax—Ten Pin Alley—Indictment—Conjunction. In a prosecution for violating the occupation tax law, an indictment which charged in the same count that the defendant pursued the occupation of running and operating a ten pin alley and bowling alley for profit was sufficient; and the use of the conjunction “or” in place of “and” was immaterial. 2. —Same—Hearsay—Declaration of Third Party. -Where upon a trial for a violation of the occupation tax law, the issue was as to whether defendant ran the ten pin alley for profit, and the evidence was on his part that he did not do so, it was error to permit testimony that some one told the witness that he paid the defendant for playing on said alley, but there was no evidence that the defendant heard this statement or knew of it.
51 Tex. Crim. 102Hinson v. State (1907)
1. —Forgery—Indictment—Date. In a prosecution for forgery where the recital in the indictment clearly showed that the figures 1690 were placed therein by inadvertence, and that it also contained the correct date, there was no merit in the contention that the indictment showed two dates as to the organization of the grand jury. 2. —Same—Accomplice—Postponement. The statute does not authorize parties indicted for different crimes to be tried first, on the general allegation that they would he material witnesses in behalf of the parties then on trial; and a motion to postpone the trial upon this ground was correctly overruled where the defendant was indicted as an accomplice in forgery in four cases pending against him. 3. —Same—Other Offenses—Evidence—System—Criminal Knowledge. Testimony of extraneous crimes is admissible where they are a part of the res gestae to show system or intent; but independent contemporaneous crimes, disassociated from the one on trial, are not admissible where the defendant is indicted as an accomplice and the crime of the principal is admitted and there is no question of the method of the forgery. However, circumstances or familiarity between the accomplice and the principal showing criminal knowledge would be evidence. 4. —game—Charge of Court—Accomplice. Upon a trial for forgery, a charge of the court on accomplice testimony which has been held defective heretofore was error. 5. —Same—Practice on Appeal—Motion for new Trial—Prolixity. Upon appeal from a conviction of forgery, the original motion for new trial should not be embraced in the record where there is an amended motion. Prolixity of the record should be avoided.
51 Tex. Crim. 106Ozark v. State (1907)
1. —Murder in First Degree—Evidence—Bloody Clothes—Circumstances. Upon trial for murder there was no error in admitting testimony and circumstances with reference to an overcoat which had blood stains upon it, although the same was not positively identified as that of the defendant. 2. —Same—Evidence—Wounds of Deceased—Opinion of Witness. Where upon trial for murder a physician testified about the character of the injuries upon the head of deceased and gave his opinion that they were inflicted with a blunt instrument, there was no error. 3. —Same—Evidence—Morphine—Intoxication. Upon trial for murder, where the evidence showed that the deceased was intoxicated at the time of the homicide and that he drank whisky, there was no error to show that the deceased had attempted to buy morphine which had been refused him. 4. —Same—Impeachment of Witness—Rule Stated. Where the State or defense places a witness upon the stand, and said witness testifies against the party introducing him, the rule authorizes a contradiction of the witness for the purpose of impeaching his testimony, but this rule does not apply where the witness does not testify against the party introducing him; and where a State’s witness denied that he had hid a certain overcoat on the morning after the homicide, he could not be contradicted by other witnesses that he had admitted this fact to other parties. 5. —Same—Examining Trial Testimony—Predicate—Question of Fact. If a witness is out of the State, or if he has left the State by inducement of defendant, or absents himself from the trial at the instance of defendant, the witness’ testimony taken on the examining trial may be introduced in evidence; and if the predicate upon which it is introduced becomes a question of fact that matter should be submitted to the jury.
51 Tex. Crim. 111Hays v. State (1907)
The opinion states the case.
51 Tex. Crim. 113Dobbs v. State (1907)
The opinion states the case.
51 Tex. Crim. 118Kannmacher v. State (1907)
The opinion states the case.
51 Tex. Crim. 126Ripley v. State (1907)
Tried below before the Hon. Sam R. Scott. Appeal from a conviction of murder in the first degree; penalty, life imprisonment in the penitentiary. The State’s case claims that the defendant acted together with other parties in bringing about the death of the deceased in a street car strike at Waco; whereas the defendant claims no participation in the strike or as conspiring to injure or bring about the death of the deceased.
51 Tex. Crim. 133Bice v. State (1907)
1. —Murder—Charge of Court—Imperfect Self-Defense. Where upon trial for murder, there was a serious conflict in the testimony as to what took place at the time- and just prior to and during the difficulty, and there was enough evidence to show that the question of imperfect self-defense was an issue in the case, the court should have charged upon that issue as requested by the defehdant. 2. —Same—Impeaching Witness. Where a witness sought to be impeached admits making the former statement, this is sufficient without introducing impeaching witnesses. 3. —Same—Evidence—Res Gestae. Upon trial for murder, there was no error in admitting testimony that deceased directly after being shot made statements in regard to the shooting and want of knowledge as to who shot him. However, a request by deceased to telegraph his mother was inadmissible. 4. —Same—Bill of Exceptions. Where a bill of exceptions does not set out the details of the transaction inquired about, it cannot be reviewed.
51 Tex. Crim. 137Smith v. State (1907)
1. —Rape—Jury and Jury Law—Return of Officer—Special Venire. Where upon trial for rape the return of the officer of the special venire sufficiently showed what jurors were served, the same was sufficient. 2. —Same—Relationship of Parties—Aggravation of Offense. Where upon trial for rape, the prosecutrix was the daughter of defendant, there was no error to permit the State to show such relationship. 3. —game—Evidence—Consent—Act of Defendant. Where upon trial for rape there was no issue as to the consent of the prosecutrix, testimony that her father, the defendant, was always quarreling with her and slapping her was inadmissible. 4. —Same—Evidence—Hearsay—Harmless Error. Where upon trial for rape the State was permitted to show by the husband of prosecutrix, who married her subsequent to the alleged rape, as to when he first heard of the rape of his wife, and such testimony was not shown to have injuriously affected the defendant the error if any was harmless. 5. —game—Letter—Blackmail—Inferences. Where upon trial for rape the evidence showed that the husband of the prosecutrix had written to the defendant demanding that he turn over his property and flee the country, the State should not have been permitted to show that at the time of the writing of said letter the writer was laboring under excitement, to show that it was not a blackmail. 6. —Same—Evidence—Reputation of Third Party. On trial for rape where the evidence showed that the husband of prosecutrix demanded of defendant that he should turn over his property to him and flee the country and he would not prosecute, it was error to introduce the reputation of such prosecutor for honesty and fair dealing. 7. —Same—Principal—Consent—Non-Age. Where in a prosecution for rape, the prosecutrix on account of non-age was incapable of giving consent under the statute, she could not be a principal in the crime, any more than if force had been used. 8. —Same—Accessories—Accomplices—Charge of Court. Where upon trial for rape the evdence showed that the prosecutrix and her husband had made a proposition to defendant that if he would turn over his property to them and flee the country they would not prosecute him, the prosecutrix being defendant’s daughter. Held, that this would not constitute them accessories, as their acts were not of an affirmative character, and also on account of their relationship to defendant.
51 Tex. Crim. 142Holland v. State (1907)
Local Option—Other Offenses—System. Upon trial for a violation of the local option law, testimony as to other offenses of the same kind as the one on trial, as to the manner in which the whisky was obtained from defendant, where the sale was not direct and positive, was admissible to show system.
51 Tex. Crim. 143Holland v. State (1907)
Local Option—Prescription law—Bond of liquor Dealer—Statutes Construed— Constitutional law. Where upon trial for a violation of the local option law in the ordinary form, the evidence showed the defendant sold the whisky in question under a prescription regular in form by a practicing physician under a license and bond, he could not be prosecuted and convicted under article 5060j of the Oivil Code for failure to give new bond and thus be amenable to a violation of the local option law in local option territory. Article 405, Penal Code, prescribes a punishment for violating the prescription law in local option territory; but the sale of liquor for medicine has been eliminated by the Legislature in accordance with the Constitution.
51 Tex. Crim. 145Jordan v. State (1907)
1. —Theft—Misdemeanor—Accomplice—Charge of Court. Upon trial for theft, where the State relied on the testimony of an accomplice, it was error to instruct the jury that a conviction could not be had unless such testimony was corroborated by other evidence tending to connect the defendant with the offenses, etc. 2. —Same—Charge of Court—Confession—Corroboration of Accomplice. ' Upon trial for theft, where the State relied on a. confession of defendant and accomplice testimony, it was error to charge that defendant could not be found guilty upon his confession, etc. The State can introduce a confession, like any other circumstance, to corroborate an accomplice, but it is not necessary or proper for the court to instruct the jury to this effect, but simply to submit a charge on accomplice testimony under the rules of law.
51 Tex. Crim. 147Holland v. State (1907)
The opinion states the case.
51 Tex. Crim. 150Bickham v. State (1907)
Appeal from the County Court of Dallas. Tried below before the Hon. Hiram. F. Lively. Appeal from a conviction of aggravated assault; penalty, a fine of $25.
51 Tex. Crim. 151Kelley v. State. (1907)
The opinion states the case.
51 Tex. Crim. 153Rainbolt v. State (1907)
The opinion states the case.
51 Tex. Crim. 155Quinn v. State (1907)
1. —Adultery—Jury Law—Challenge for Cause—Opinion. Where upon trial for adultery one of the jurors had formed an opinion from conversing with one of the witnesses, and the defendant was compelled to take him, having exhausted his challenges, a challenge for cause should have been sustained, although the juror stated that he believed he could render a fair and impartial, verdict. 2. —Same—Hearsay Evidence. Upon trial for adultery testimony of witnesses as to what they had heard some one else say not in the presence of defendant, should have been excluded as hearsay. 3. —Same—Impeaching Witness—Surprise. Upon trial for adultery where a State’s witness had failed to testify to matters which the State desired to prove by him, and there was no claim of surprise, the State should not have been permitted to contradict this witness. 4. —Same—Evidence—Contents of Letter—Hearsay—Notice. Upon trial for adultery where there was no notice to produce a letter, the predicate was insufficient to introduce its contents. Opinions of witnesses, and acts of defendant occurring long before the indictment, were inadmissible. 5. —Same—Charge of Court—Habitual Carnal Intercourse—Insufficient Evidence. Where upon trial for adultery, a number of acts of familiar conduct were proven, but no positive evidence of any act of carnal intercourse was shown, the evidence was insufficient to authorize a conviction that defendant was married and was guilty of habitual carnal intercourse without living with her paramour.
51 Tex. Crim. 157Holland v. State (1907)
The opinion states the case.
51 Tex. Crim. 158Ex Parte Woodroe (1907)
Habeas Corpus—Pauper’s Affidavit—Fine—Imprisonment.' Where upon habeas corpus proceedings the record showed that relator’s fine and costs had been served out by her ip jail since filing her pauper’s affidavit, she was entitled to a discharge.
51 Tex. Crim. 159Lahue v. State (1907)
1. —Murder in Second Degree—Continuance—Second Application—Cumulative Testimony. Where upon trial for murder, the application for continuance did not show sufficient diligence, and the testimony of the absent witnesses was merely cumulative, a second application for continuance was correctly overruled. 2. —Same—Witnesses in Attendance Hot Used. Upon trial for murder, where the testimony of the absent witnesses, as set out in motion for continuance, could have been produced substantially by a witness present at the trial who was not used, it was not error upon motion for new trial that the motion for continuance was overruled. 3. —Same—Jury Law—Challenge for Cause. Upon trial for murder, where objection was made to some of the jurors, the bill of exceptions should have shown that the jurors had been forced upon defendant and were subject to challenge for cause, or at least so objectionable as to be shown that they were probably unfair. 4. —Same—Res Gestae—Evidence—Character of Defendant. Upon trial for murder, there was no error on cross-examination of defendant to show that he had embezzled money collected for the deceased, this being the transaction that he referred to in his remarks about being accused of dishonesty, and was part and parcel of the transaction that brought about the difficulty. 5. —Same—Charge of Court—Provoking Difficulty. Where upon trial for murder the charge objected to was but an excerpt from the entire charge in regard to provoking the difficulty, and when viewed in the light of the whole charge on said issue stated the law correctly, there was no error. 6. —Same—Statutes Construed—Defendant Arming Himself. Where upon trial for murder the evidence showed that defendant had a pocket knife with a blade threé to three and a half inches in length, that he carried the same in his coat pocket with the blade open and made threats against the deceased of a serious character, there was no error in the expression used in the court’s charge that if the jury believed beyond a reasonable doubt that defendant armed himself, etc., for the purpose of provoking the deceased to make an attack upon him, etc. The inhibition of carrying arms under article 338, Penal Code, is not the criterion of a party arming himself to provoke a difficulty with a view of using the arms he carried, and is not the measure of the right of self-defense. Overruling, Thornton v. State, 65 S. W. Rep., 1108. 7. —Same—Abandonment of Difficulty. Where upon trial for murder the evidence showed that the question of abandonment of the difficulty was not in the case, there was no error in not charging thereon. 8. —Bills of Exception—Stenographic Report—Reading Testimony to Witness. Upon trial for murder where the bill of exceptions to the testimony pointed out no specific grounds of objection, and it would require the court to run through the stenographic report to locate the matter, the same could not be reviewed; besides, the alleged contradiction of the witnesses in his examining trial testimony was not apparent, and there was no error in reading it to the witness. 9. —Same—Hearsay—Conversation—Same Subject. Where upon trial for murder, a part of the conversation with deceased had with one of the witnesses was brought out by the defendant, the State had the right to introduce the rest of the conversation bearing upon and relating to the same subject. 10.—Same—Cause of Death—Wound Inflicted—Charge of Court. Where upon trial for murder the attending physician of deceased testified that the immediate cause of death was a hemorrhage, which was produced by the wound inflicted on deceased by a knife in the hands of the defendant, the evidence was sufficient to show the cause of death, and there was no necessity of submitting a charge on this issue.
51 Tex. Crim. 166Ex Parte Cole (1907)
The opinion states the case.
51 Tex. Crim. 170Tankersley v. State (1907)
The opinion states the case.
51 Tex. Crim. 174Howe v. State (1907)
The opinion states the case.
51 Tex. Crim. 180Vaughn v. State (1907)
1. —Murder in First Degree—Manner of Witness on the Stand. Where upon trial for murder the State’s witness gave way to her feelings, shed tears and made some exclamations on the witness stand, to which the defendant’s counsel objected, and upon which the court made no ruling, there was no error. 2. —Same—Declarations of Defendant. Upon trial for murder, there was no objection in admitting the declaration of the defendant and the colloquy which occurred between him and the witness. 3. —Same—Habits of Deceased in Carrying Razor—Presumptions. Upon trial for murder, there was no error in rejecting testimony as to whether deceased had ever been seen with a razor or a knife and that she had a reputation of carrying them, all of which the witness denied; and whether witness had heard of the difficulty deceased had in which she cut another woman with a razor, which was also answered in the negative. 4. —Same—Bill of Exceptions—Knife Used. Where upon trial for murder the State proved by an officer that the defendant claimed he had used a certain knife in killing the deceased after he had been warned, there was no error; and where the bill of exceptions was not sufficiently clear to show whether such admission of defendant was made at an inquest, and what bearing the identification of the knife had upon the same, the same could not be reviewed. 5. —Same—Court Instructing Witness—Reputation of Deceased. Where upon trial for murder the defendant was on the stand to prove the ' general dangerous reputation of the deceased, there was no error in the court instructing the witness that he must first answer, yes or no, as to whether he knew the general reputation of the deceased before answering what that reputation was; especially where the witness answered in the negative. 6. —Same—Defendant’s General Reputation. Upon trial for murder, there was no error in excluding testimony that defendant was a member of a certain order, and that no man could belong thereto unless he was a pretty good man. 7. —Charge of Court—Requested Charges—Repetition. Upon trial for murder, it was not necessary to submit charges which had already been given or to refuse to repeat charges after they had been once given. 8. —Same—Declarations by Juror. Upon trial for murder, where one of the jurors was overheard to say that he believed defendant was guilty and that he was willing to hang him, there was no reversible error. 9. —Same—Interruption of Counsel by Juror—Questions to and Recall of Witness—Stenographer’s Report. Where upon trial for murder, one or two jurors took issue with defendant’s counsel statement as to what a- certain witness had testified, there was no error to refuse counsel’s request to have the stenographer read the stenographic report of witness’ testimony to the jury; and there being no request by the jury to recall said witness, there was no error. Besides the bill of exceptions did not set out the testimony about which the disagreement arose.
51 Tex. Crim. 186Follis v. State (1907)
1. —Murder in First Degree—Continuance—Postponement. Upon trial for murder, pending a motion for continuance, the court had a right to know whether defendant desired to wait for a witness, from whom he received a telegram during the trial, whether he desired a postponement; and when defendant’s counsel refused to say, the court did not err in proceeding with the trial. 2. —Same—Confession—Question of Fact—Warning. Where upon trial for murder there was enough in the statement of the officer to question the facts whether defendant’s confession was voluntary, the issue should have been submitted to the .jury; and the opinion of the witnesses should have been excluded. 3. —Same—Charge of Court—Accomplice—Weight of Evidence. Upon trial for murder where the State relied on the testimony of an accomplice and the confession of the defendant, it was error to charge on accomplice testimony that the confession of the defendant could be looked to for corroboration of the testimony of an accomplice, when such confession was so corroborative and proven by other witnesses than an accomplice. 4. —Same—Corpus Delicti—Statutory Requirements—Corroboration. While the corpus delicti may be proven by the testimony of an accomplice corroborated by the confession of the defendant and vice versa, no person under the statute can be convicted on any grade of homicide' unless the body of the deceased or portions of it are found and sufficiently identified to establish the fact of the death of a person charged to have been killed. 5. —Same—Cause of Death—Insufficient Evidence—Means Used. Where upon trial for murder, the evidence might have been sufficient to render the identification of the body of the deceased complete, yet where the evidence to corroborate the confession of defendant as to the criminal means used to cause the death of the person whose body had been found, was not shown, or that the death of such person was brought about by violence, the conviction could not be sustained. 6. —Same—Verdict—Jury’s Prerogative. Upon trial for murder, where the jury returned a verdict without stating the degree, assessing defendant’s punishment at ninety-nine years imprisonment, the court had no right to write a verdict for the jury finding the defendant guilty of murder in the first degree. See opinion for testimony held insufficient to sustain a conviction.
51 Tex. Crim. 192Berryman v. State (1907)
Murder in First Degree—Infanticide—Insufficient Evidence. Where upon trial of murder by defendant of her child, there was no evidence to show that the child was born alive, that the mother, the defendant, was responsible for its death, or who cut its throat, or that its lungs were examined or any test made, the evidence is insufficient to sustain a conviction.
51 Tex. Crim. 193Henderson v. State (1907)
The opinion states the case.
51 Tex. Crim. 196Burton v. State (1907)
The opinion states the case.
51 Tex. Crim. 202Tillman v. State (1907)
The opinion states the case.
51 Tex. Crim. 205McCowan v. State (1907)
The opinion states the case.
51 Tex. Crim. 208King v. State (1907)
Tried below before the Hon. E. B. Muse. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary.
51 Tex. Crim. 211Manning v. State (1906)
1. —Murder in First Degree—Declaration of Defendant. • Upon trial for murder there was no error in admitting the testimony of a witness relative to a conversation said witness had with defendant shortly before the homicide in the absence of deceased. 2. —Same—Confession of Defendant—Bes Gestae. Where upon trial for murder the objectionable part of the witness’ testimony as to the confession of the defendant was excluded from the jury and the rest constituted res gestae, there was no error. 3. —Same—Threats of Defendant. Upon trial for murder there was no error to admit declarations of defendant against the deceased in which he threatened to lay him low. 4. —Charge of Court—Express Malice. Upon trial for murder there was no error in the court’s charge in his definition of express malice, when construed with the rest of the court’s charge. 5. —Same—Implied Malice—Deadly Weapon—Harmless Error. Where upon trial for murder, there was no controversy that the defendant used a deadly weapon in a most deadly manner, there was no harm in the court’s abstract charge on the instrument used that if the instrument was not likely to produce death it was not - to be presumed. that death was designed, etc. 6. —Same—Adequate Cause—Charge of Court. Where upon trial for murder the court in his definition of implied malice did not in that connection define adequate cause, but did so define it in his charge on manslaughter, there was no error. 7. —Same—Murder in Second Degree—Manslaughter. Where upon trial for murder, the court charged on murder in the second degree and manslaughter, and did not define adequate cause in his charge on murder in the second degree, and the jury found defendant guilty of murder in the first degree under a proper charge of the court, the jury could not have confused the offense of murder in the second degree with that of manslaughter. 8. —Cooling Time—Murder in First Degree—Favorable Charge. Where upon trial for murder, the court charged the jury upon murder in the first degree that the intent to kill must be formed in a cool, sedate and deliberate mind, and that if the intent to kill was not formed in such a state of mind, and sufficient cooling time had not elapsed for the mind to regain its wonted calmness, it could be no more than murder in the second degree; and the jury were also instructed upon murder in the second degree that under a certain state of facts the offense could not be greater than murder in the second degree, and also charged on manslaughter, the whole charge properly construed was beneficial to defendant. 9. —Same—Harmless Error—Murder in Second Degree—Manslaughter. Where upon trial for murder, the court in one part of his charge on murder in second degree stated a case on the evidence which constituted adequate cause, and therefore should have charged manslaughter on such a state of facts, yet where the jury found defendant guilty of murder in the first degree, and there was nothing in the court’s charge calculated to mislead the jury as between the two degrees, the error was harmless. 10. —Same—Self-Defense—Charge of Court. Where upon trial for murder, there was nothing in the evidence which raised the issue of self-defense, but which the court, nevertheless, gave in correct form, there was no error. 11. —Same—Former Conviction of Defendant. Where upon trial for murder, testimony that the defendant had been formerly indicted for an assault with intent to murder was excluded from the jury in a written charge, there was no error.
51 Tex. Crim. 218Marks v. State (1907)
The opinion states the case.
51 Tex. Crim. 220Jackson v. State (1907)
The charge of the court on accomplice testimony was as follows: “Our law provides that a conviction cannot be had of a defendant charged with an offense in violation of the law, on the testimony of an accomplice unless such accomplice is corroborated by other evidence tending to connect the defendant with the offense committed and the corroboration is not sufficient if it merely shows the commission of the offense.” The opinion states the case.
51 Tex. Crim. 222Rucker v. State (1907)
1. —Theft—Misdemeanor—Foot Prints—Tracks—Evidence. The mere fact that there was no effort to identify the tracks and connect defendant with same would not be a ground for holding that the prosecuting witness could not testify that there were tracks around the pile of cotton alleged . to have been stolen. This would merely go to the weight of the testimony and would not justify its exclusion, and there was no error. 2. —Same—Sufficiency of the Evidence—Hypothesis of Guilt. Where upon trial for theft of cotton, the defendant made a statement which was tantamount to a confession, and the circumstances of his guilt were of that conclusive nature which excluded every other reasonable hypothesis than that of his guilt, a verdict of guilty was sustained.
51 Tex. Crim. 223Stewart v. State (1907)
The opinion states the case.
51 Tex. Crim. 224Tankersley v. State (1906)
The indictment charged in the first count possession and ownership of the animal alleged to have been stolen in F. Heifer, and in the second count alleged possession of said animal in Joe Williams, and ownership in an unknown owner. The court submitted the ease on the first count only. The opinion states the case.
51 Tex. Crim. 230Hickey v. State (1906)
1. —Murder in Second Degree—Evidence—Witness. Upon trial for murder there was no error in permitting a State’s witness to state his official position at the time he testified in the case. 2. —Same—Leading Question—Statement of Witness—Track. Upon trial for murder there was no error to Question the witness whether he had seen other tracks, the witness answering in the affirmative, and that said tracks looked to witness that they went in a certain direction. 3. —Same—Evidence—Weapon Used—Cartridge-Hulls. Upon trial for murder there was no error in admitting testimony identifying the pistol used at the time' of the homicide together with the cartridges and hulls in it. 4. —Same—Evidence—Bullet—Declaration of Third Parties. Upon trial for murder there was no error in the introduction in evidence of a bullet that was taken out of the ground, where the head of the deceased was supposed to have lain, some three months after the homicide, the testimony showing that the witness who identified the bullet knew where the place was where the head of the deceased lay on the day of the homicide, and that he dug the bullet out of the ground; the same being of exactly the same size and caliber of defendant’s pistol. 5. —Same—Evidence—Cross-Examination. Upon trial for murder, there was no error in permitting the State on cross-examination of defendant to question him how many times he had testified in the case, for the purpose of contradicting him. 6. —Same—Withdrawal of Immaterial Testimony. Where upon trial for murder testimony which was inadmissible was subsequently withdrawn from the jury, such testimony not being of great importance, there was no reversible error. 7. —Same—Charge of Court—Withdrawal of Material Testimony. Where upon trial for murder, the prosecution offered to show that deceased’s relatives were inimical to deceased, and conspired together to get rid of him; and the defense in rebuttal introduced evidence that these relatives had employed counsel to prosecute defendant for killing the deceased, etc., such evidence was material, and it was reversible error on part of the court to charge the jury not to consider such testimony. Brooks, Judge, dissenting. 8. —Same—Charge of Court—limiting Testimony. Upon trial for murder, where the State had introduced testimony with reference to statements made by defendant as original testimony, the court was not authorized to instruct the jury that they could only use it for the purpose of discrediting the testimony of defendant.
51 Tex. Crim. 239Ex Parte Anderson (1907)
From Henderson County. Original application for habeas corpus for release from a commitment upon complaint for violating the local option law; contesting the validity of the local option election. The opinion states the case.
51 Tex. Crim. 248Needham v. State (1907)
1. —Occupation Tax—Constitutional Law—Class Legislation—Statutes Construed—Wholesale—Retail. Under a prosecution based upon subdivision 3 of article 5049 of the Revised Civil Statutes providing for an occupation tax on salesmen of patent or other medicines, and exempting salesmen of wholesale drug houses, where the evidence showed that the defendant, a traveling salesman for a wholesale house sold at. retail. Held, that defendant was not protected under the exemption and was subject to the occupation tax. and that.the act is not violative of the constitution as class legislation. Davidson, Presiding Judge, dissenting. 2. —Same—Information—Negative Averments. Where in a prosecution based upon article 5049, subdivision 3, Revised Statutes, the information undertook to set out all of the negative averments but failed to allege that defendant was not a salesman making sales, which is a part of the proviso, the same was fatally defective. 3. —Same—Levy of Tax—Want of Proof. Where in a prosecution for failing to pay occupation tax the information alleged that a tax of $50 liad been levied by the commissioners court, but the record failed to show proof that the county had levied any occupation tax as alleged, the conviction could not be sustained.
51 Tex. Crim. 252Williams v. State (1907)
1. —Bail Bond—Statutes Construed—Judgment. Under article 491, Code Oriminal Procedure, the court is authorized to enter a judgment against the principal in a different sum from that entered against the sureties, provided the judgment is so framed that the entire amount recovered’ is not in excess of the penal sum fixed by the bond. 2. —Same—Bond More Onerous Than the Statutes—Statutes Construed—Misdemeanor. Articles 303-309, inclusive, Code Criminal Procedure, do not require the personal appearance of the principal in a- bail bond; and under articles 633 and 634, Code Criminal Procedure, the principal may appear by counsel and is not required to make his personal appearance. Held, that in' a prosecution for a misdemeanor where the bail bond required the personal appearance of defendant, the same was more onerous than the law required.
51 Tex. Crim. 255Rice v. State (1907)
1. —Murder in First Degree—Hearsay Evidence—Withdrawal of Testimony. Where upon trial for murder, the court admitted hearsay testimony without objection of defendant, and thereafter the court on motion of defendant withdrew said testimony, including all questions to and answers of the witness, in his charge to the jury, there was no legal basis for complaint. 2. —Same—Harmless Error—Impeaching Witness—Remarks of Court. Where upon trial for murder, a witness for the defendant on cross-examination by the State denied that he had ever received money from another to get up evidence, etc., whereupon a colloquy ensued between the court and the counsel for the defense, and the court finally instructed the jury in his charge to disregard all questions to and answers of said witness, and also to disregard said colloquy between the court and counsel, there was no harmful error. 3. —Same—Bill of Exceptions—Practice on Appeal. Where upon trial for murder, defendant’s bill of exceptions was totally defective in not stating any ground of objection, the same could not be considered on appeal. 4. —Same—Lack of Verity of Witness—Cross-Examination. Where upon trial for murder, the State upon cross-examination of defendant’s witness attempted to show that his testimony had been concealed, as a circumstance to show its lack of verity, there was no error. 5. —Same—Evidence—Defendant as a Witness—Cross-Examination. Where upon trial for murder, the principal State’s witness, who was a clerk of deceased at the time of the homicide, had testified that the deceased was unarmed when killed, and afterwards when defendant took the stand as a witness and stated among other things that it looked to him like a framed-up-thing for deceased to murder him, there was no error to permit the State on cross-examination to ask the defendant whether he believed said State’s witness was in the plot to kill him. 6. —Same—Implied Malice—Charge of Court. See opinion for charge of court on implied malice held to be correct, except as to force used in self-defence. 7. —Same—Self-Defense—Threats. Where upon trial for murder the evidence did not raise the issue of threats as defined in article 713, Penal Code, no charge on that phase of the case was necessary. 8. —Same—Impression of Witness—Appearance of Deceased—Weapon. Upon trial for murder, it was error to admit the testimony of a State’s witness as to the impressions of witness made by the appearance of the deceased, whom the witness described as being very bloody and having a death-like expression when he arrived at witness’ house coming from the scene of the shooting, about five blocks away; and which testimony the trial court admitted as a circumstance to show whether or not the deceased was in such mental condition that he would think to dispossess himself of a pistol before reaching said witness, and to show whether he was armed at the time he was shot as contended by the defendant; there being no question as to the fatality’ of the wound received by deceased.- 9. —Same—Remarks of the Court—Colloquy With Counsel. Where upon trial for murder, the court, in admitting testimony as to the appearance of deceased, animadverted thereon that it was a circumstance that might have some bearing as to whether the deceased in that condition would have dispossessed himself of the pistol that he was supposed to have had when he was shot, etc., a direction by the court to the jury to disregard the same may not have been sufficient to have counteracted the jmpression on the jury of such remark by the court. 10. —Same—Evidence—Immaterial Testimony, Upon a trial for murder, it was immaterial as to how long deceased had been married, and such testimony was inadmissible although it may not have been reversible error. 11. —Same—Dying Declarations—Predicate—Question and Answer. Where upon trial for murder, the evidence showed that deceased died on Thursday. evening after the shooting on Saturday night, and was hopeful until about ten or fifteen minutes before he died when he said he was going to die and asked the witness to send for his family, a sufficient predicate of his dying declaration was laid; and the question put to him as to whether he was armed when he was shot and the answer thereto that he was noi, were not objectionable. 12. —Same—Declaration of Deceased Not Essential. Upon trial for murder, where the predicate for the dying declarations of the deceased had been properly laid, it was improper to admit (besides the declarations of the deceased that he was going to die and that he was unarmed at the time he was shot) the further declaration that he told his wife and relatives good-bye and his brothers to be good men, to meet him in Heaven and not to hurt any body, and that he forgave the man who shot him. 13. —Cross-Examination of Defendant—Declaration of Third Party. Upon trial for murder, it was inadmissible to prove by defendant on his cross-examination that a certain person came to see defendant while in jail, and said that he was sorry that defendant was in trouble, that defendant should say nothing except to his attorneys, and keep his mouth closed. 14. —Same—Evidence—Collateral Attack—Impeachment. Upon trial for murder, it was error to permit the State to introduce impeaching testimony upon a collateral issue to affect the credibility of one of defendant’s witnesses; and where the same is of an injurious character to the rights of the defendant, it constitutes reversible error. 15. —Same—Case Stated—Collateral Attack—Eabrication—Limiting Testimony. - Upon trial for murder, where a witness testified in behalf of defendant that he was present at the homicide, etc., and afterwards was introduced by the State and then stated that his former testimony was a fabrication, and that he had been bribed by his brother to testify for the defendant as he did in the first instance; and thereupon the State introduced said brother of’ the witness who denied that he had bribed the witness, it was error to permit the State to recall the first witness to contradict the second witness with reference to such bribery; defendant not being connected with such transaction, which took place long after the homicide; neither did it constitute original testimony of fabrication against the defendant, but was offered by the State to affect the credibility of the second witness who was also defendant’s witness. Such testimony could not be limited by the court so as not to prove injurious to defendant. 16. —Same—Cooling-Time—Degrees of Murder. Cooling-time is applicable between murder in the first degree and second degree, and is as much involved between the degrees of murder as it is between murder and manslaughter. 17. —Same—Charge of Court—Previous Altercation—Explanation. Where upon trial for murder, the evidence showed a previous altercation about fifteen minutes prior to the one which resulted in the homicide, and the State used this first altercation as furnishing the motive for the homicide; and the animus on the part of the defendant for committing it, the court erred in failing to instruct the jury with reference to murder in the first degree based on said first altercation between defendant and deceased and cooling time in connection therewith; and this although the court submitted a charge on defendant’s right to ask for an explanation of the conduct of deceased arising during the said first altercation. Brooks, Judge, dissents. 18. —Same—Charge of Court—Manslaughter—Self-Defense—Adequate Cause. Where upon trial for murder, the evidence showed not merely antecedent insulting language but a demonstration on the part of the deceased, the court should have instructed on the theory .of manslaughter as well as self-defense, in as much as defendant may not have been justified under the facts to slay deceased in self-defense, and that the evidence showed adequate cause. Brooks, Judge, dissents. 19. —Same—Self-Defense—Force Used. On a trial for murder, where the evidence raised the issue of self-defense, the question of the use of more force than was necessary on the part of the defendant was not involved. 20. —Same—Charge of Court—Self-Defense—Reasonable Doubt. Upon trial for murder, where the jury were instructed that unless they believed under the evidence beyond a reasonable doubt that the defendant did not act in his own self-defense then to give him the benefit of the doubt and acquit him, the charge shifted the reasonable doubt against the defendant.
51 Tex. Crim. 289Busby v. State (1907)
1. —Misapplication of Public Money—Indictment—Repugnancy. In a prosecution for the misapplication and conversion of public money, there was no repugnancy because the indictment charged the defendant was an officer of the government and a clerk and employee of such officer; he being the assistant financial agent and subordinate of the financial agent of the penitentiary; besides the motion to quash was made after the verdict and came too late unless there was an absolute repugnancy in the indictment. 2. —Same—Evidence, Checks as Evidence. Upon trial for misapplication of public funds, there was no error in permitting the State to introduce checks which were turned over to the bank and collected by it. 3. —Same—Evidence—Endorsement of Check. In a prosecution for a misapplication of public funds, there was no error in permitting the introduction in evidence of checks which were made payable to the financial agent of the penitentiary and endorsed by the defendant officially, to show that they were the funds of the State. 4. —Same—Evidence—Rejecting Testimony. Upon trial of misapplication of public funds there was no error to refuse testimony with reference to goods which were not charged against the defendant. 5. —Same—limitation—Evidence—Items Barred not Evidence. Upon trial for the misapplication of public funds, where items were introduced in evidence that were questioned as being barred by limitation, the jury should have been instructed to disregard all such items so barred by the statute of three years limitation. 6. —Same—Books—Evidence—Supervision and Control by Defendant. Upon trial for a misapplication of public funds, books offered in evidence against defendant must be shown to have been kept by him, or under his direct supervision and control; unless other proof is offered that said books were properly kept and that they were books of original entries. 7. —Evidence—Judgment in Civil Case not Evidence in Criminal Case. Upon trial for misapplication of public funds, it was error to admit in evidence the judgment rendered in a civil case against defendant, in which the State of Texas was plaintiff and the financial agent of penitentiaries and his bondsmen and the defendant were defendants, involving the defalcation of public funds by the defendant, and which 'such suit was compromised and a judgment by consent rendered against the defendants in said suit, including the defendant; as the rules of evidence are different in the two proceedings. Brooks. Judge, dissenting. 8. —Same—Materiality—Injury to Defendant’s Rights. Upon trial for misapplication of public funds, where a judgment in a civil case against the defendant, involving the same subject matter was admitted in evidence, and the court instructed the jury that if the evidence showed that defendant was in default, a subsequent settlement would be no defense, etc., the same must have injuriously affected the rights of the defendant, although there was other evidence of his defalcation in the case. 9. —Same—Evidence—Expert Book-Keeper—Report. Upon trial for a misapplication of public funds, there was no error in admitting in evidence the report of two expert book-keepers who were appointed to examine the books and make a report between the defendant and the State. 10. —Same—Evidence—Credit—Acts of Defendant. Upon trial for a misapplication of public funds, there was no error in the refusal of the court to admit testimony as to an investigation made by defendant’s witness to show that defendant had never made a claim to certain credits, to meet the testimony of the bank books that he" had made such claim; no correction of the bank account having been previously requested by defendant. 11. —Same—Circumstantial Evidence—Charge of Court. Upon trial for the misapplication of public funds, where the evidence is circumstantial, the court should charge on that phase of the case. ' 12. —Same—Charge of Court—Elements of Offense—Burden of Proof. Upon a trial for the misapplication of public funds, the court correctly enumerated the essential elements constituting the offense, and placed the burden upon the State to show said requisites before the jury would be authorized to convict. 13. —Same—Conversion—Payment—No Extenuation. Upon trial for a misapplication of public funds, where there was evidence that appellant’s bondsmen repaid some of the funds after the conversion, the court correctly charged that this was no defense to the criminal prosecution. 14. —Same—Charge of Court—Accounting for Public Money—Officer. The rule is that where a public State officer is shown to have received money on account of his trust, it is incumbent on him to pay it over to the State in accordance with the obligation assumed by him; and where exculpatory evidence of an important character is peculiarly within the knowledge of defendant it is his duty to produce it, and a charge embodying this principle was proper. 15. —Same—Charge of Court—Mixing Funds—Fraudulent Intent—Mistake. Where upon trial for misapplication of public funds, there was "evidence that the defendant was misled by the failure of a bank to report to him certain collections and which he failed to report to his principal, and that he mingled his private funds with public funds in such a manner" that it might not be tantamount to fraud on bis part, the court should have instructed pertinently and directly as to his defense of mistake and innocent intent. Brooks, Judge, dissenting.
51 Tex. Crim. 315Corpus v. State (1907)
The opinion states the case.
51 Tex. Crim. 322Baird v. State (1907)
The opinion states the case.
51 Tex. Crim. 324Day v. State (1907)
1. —Appearance Bond—Judgment Nisi—Scire Facias—Date—Variance. Where upon appeal from a judgment nisi, appellants complained that the original bond was returnable January 2, 1905, and that the judgment nisi and original scire facias showed that said bond was returnable on the 3rd day of January, 1905; and there was no bond in the record, and proof of same was made in the trial court by secondary evidence to which appellant had no bill of exceptions, there was no error presented for review. 2. —game—Secondary Evidence—Contents of Bond—Substitution. Where upon trial to make final a judgment nisi, proof was made by oral testimony after proper predicate accounting for the loss or misplacement of the original bond, secondary evidence of the contents of the same was admissible, and substitution of said bond was unnecessary. 3. —Clerical Error—Date of Bond—Judgment. Where the judgment recited that the appearance bond was given returnable on a certain day, oral testimony of the sheriff that it was given one day previously of said date was a mere clerical error as apparent from the record.
51 Tex. Crim. 325Pearson v. State (1907)
The opinion states the case.
51 Tex. Crim. 327Austin v. State (1907)
1. —Rape—Corpus Delicti—Confessions. The corpus delicti can be established not by confessions alone, but by confessions in connection with other facts and circumstances. 2. —Case Stated—Circumstantial Evidence. Where upon trial for rape the defendant confessed that he had had carnal intercourse with prosecutrix who was under the age of consent, and the evidence showed that the prosecutrix and defendant slept together as man and wife, etc., the corpus delicti was sufficiently established. 3. —Same—Charge of Court—Corroboration—Words in Ordinary Use. Upon trial for rape where the court instructed the jury that the defendant’s confession must be corroborated by other evidence, etc., it was not necessary to define the term corroboration, as said word is not one of technical meaning but one in ordinary use. 4. —Same—Evidence—Corroboration—Pregnancy—Gestation. Where upon motion for new trial it was shown that the fact of pregnancy of prosecutrix, relied upon by the State as corroborating defendant’s confession during the trial, could not in the nature of things show that the defendant had intercourse with prosecutrix at the time alleged in the indictment; and the jury had partly based a sufficient corpus delicti upon the theory of a nine months period of gestation at the time of the trial, a new trial should have been granted. '
51 Tex. Crim. 329Thomas v. State (1907)
1. —Theft From the Person—Continuance—Alibi. Where upon trial for theft from the person, defendant’s application for continuance showed due diligence, and the testimony of the absent witness was material in sustaining defendant’s claim of an alibi as set out in the motion for a new trial, the continuance should have been granted. 2. —Same—Case Stated—Insufficient Evidence. See opinion, where upon trial for theft from the person, the evidence showed that the property alleged to have been stolen could not have been taken without defendant’s knowledge at the time of the taking, and that the conviction could not be sustained. Henderson, Judge, dissenting.
51 Tex. Crim. 335Roberson v. State (1907)
The opinion states the case.
51 Tex. Crim. 338Hurt v. State (1907)
Tried below before the Hon. M. M. White. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100. The judge’s qualification to defendant’s bill of exceptions showed that by mistake of the court no jury commissioners were selected to draw a jury for the term of the court at which defendant was tried.
51 Tex. Crim. 339Hutchins v. State (1907)
The opinion states the case.
51 Tex. Crim. 340Paiz v. State (1907)
Scire Facias—Statement of Facts—Twenty Day Order. In the absence of an order by the trial judge that the statement of facts may be filed within twenty days, the same cannot be considered on appeal, although the record showed that the defendant asked leave for such order.
51 Tex. Crim. 341Davis v. State (1907)
1. —Assault With Intent to Murder—Postponement—Continuance—Affidavit “by Attorney. Where upon trial of assault with intent to murder the motion for postponement was sworn to by one of defendant’s counsel and not by defendant himself, the same was fatally defective, as the affidavit must be made by defendant. 2. —Same—Continuance—Postponement. Where upon trial for assault with intent to murder the testimony of the absent witness was not material in the light of the record the motion was properly overruled.
51 Tex. Crim. 342Powell v. State (1907)
1. —Compounding Misdemeanor—Venue—Corpus Delicti. Where upon trial for compounding a misdemeanor the evidence showed that the property received for the crime of compounding the offense and the negotiations with reference thereto occurred in the county of the prosecution, the mere fact that the defendant went into a neighboring county and prevailed on some one there to go into the county of the prosecution and intercede for him there with the prosecutor did not oust the venue from the county in which the prosecution was laid. 2. —Variance—Allegation—Proof. Where the information alleged that the defendant made the alleged unlawful agreement with A., who was acting for M., and the evidence showed that defendant secured A. to intercede for him with M., there was no variance that A. was not acting for M., although M. delegated A. to deliver the property consideration which was involved in compounding the misdemeanor to defendant. 3. —Same—Information—Perm. See opinion for information for compounding a misdemeanor under the provisions of article 291, Penal Code.
51 Tex. Crim. 345Burdett v. State (1907)
1. —Theft—Misdemeanor—Co'defendant—Witness for State—Statutes Construed. So far as the statutes are concerned, articles 771 and 777, Code Criminal Procedure, the disqualification by a codefendant to testify is that he cannot testify in favor of a codefendant in a misdemeanor case unless he has satisfied the judgment; but there is no such disqualification in the use of such witness for the State. 2. —Same—Case Stated—Qualification of Witness. Upon trial for theft of lint cotton, defendant’s codefendant was jointly charged in the same information with defendant of the theft of said cotton, and previous to the trial of defendant had plead guilty to said offense, and his fine had not been paid nor bad he served his time in jail or appealed his case, but had accepted the judgment when the State used him as a witness against defendant. Held that said witness was competent to testify for the State. 3. —Same—Circumstantial Evidence—Charge of Court—Hired Hand. Where upon trial for theft of cotton the State’s evidence rested upon recent possession, which defendant explained in his testimony was honest, the court should have charged on circumstantial evidence, and also on defendant’s theory that he was merely a hired hand to haul it, as per requested charge of defendant.
51 Tex. Crim. 347Collins v. State (1907)
1. —Perjury—Statement of Pacts—Pilings. Where the record on appeal showed the filing of the statement of facts on the page immediately preceding and connected with the same, it constituted a part of the record and showed a sufficient filing of the statement of facts. 2. —Same—Indictment—Certainty of Pleading. Where an indictment for perjury alleged that it became a material question whether the defendant charged money for prescribing medicines, etc., without naming such persons, and stating any times and places, etc., it was sufficient without naming any particular person, place or time involved in the alleged false statement. 3.—Same—Charge of Court—Harmless Error. Where upon trial for perjury, the evidence was amply sufficient to make out the case and the jury gave defendant the lowest punishment, a charge that the jury could consider the information and other proceedings in the cause in which the perjury was alleged to have been committed, and thereby determine his motive in making the false statement, was harmless error, if error.
51 Tex. Crim. 349Nelson v. State (1907)
The deceased was shot and killed about 10 o’clock at night on the street of a city while attending a carnival or show, by a shot; the ball going in the belt of his pants in the back and coming out in front. A little girl was shot at the same time. There was a large crowd of people, and much noise and excitement at the place where the shooting took place.
51 Tex. Crim. 352Williams v. State (1907)
1. —Murder in First Degree—Continuance—Self-Defense. Upon trial for murder, where the second motion for continuance showed the testimony of the absent witness to be threats of the deceased against defendant, and the record showed that the defendant’s own confession eliminated all questions of self-defense, there was no error in overruling the application; especially where it was shown that such absent witness was present at a former term of the court, when defendant was granted a continuance to procure testimony to support the theory of insanity, and defendant did not claim then that said absent witness would testify to anything favorable to defendant at that time. 2. —Same—Argument of Counsel—Testimony. Where upon trial for murder the argument of the State’s counsel, as to who defendant was, was based upon the testimony of defendant giving a history of his life, the argument was legitimate and there was no error. 3. —Same—Withdrawal of Testimony—No Charge Requested. Where upon trial for murder the State’s counsel used argument based upon testimony which had been withdrawn, and defendant did not request a charge eliminating this matter from the jury, there was no reversible error. 4. —Same—Argument of Counsel—Dispute Between Counsel. Where upon trial for murder, the State’s counsel • alluded to an expression that one of defendant’s counsel should have made, and it developed that the counsel to whom the district attorney imputed the allusion did not make it, but that his colleague, another attorney for the defendant had made it, there was no reversible error. 5. —Same—Continuance—Witness—Self-Defense. Where upon trial for murder the defendant claimed in his motion for continuance that the absent witness was spirited away so that he could not use his testimony, and the court offered to hear testimony on this question before passing on the application for continuance, but defendant’s counsel declined to investigate the matter, there was no' error in refusing the continuance; especially where the testimony of the absent witness related to matters of self-defense, which was not an issue in the case. 6. —Same—Sufficiency of Evidence—Death Penalty. Where the evidence in a trial for murder showed a cold-blooded and deliberate killing, and perhaps with sufficient certainty that the same occurred for the purpose of getting the money or property of the deceased, the death penalty was warranted.
51 Tex. Crim. 357Magill v. State (1907)
1. —local Option—Ordering Election—Posting Copies. An order for a local option election which provided that the county clerk post at least five copies of the order of the commissioners court at different places in the said B. county in the manner and for the length of time required by law, and officially signed by the county judge of said county, was a sufficient compliance with the law. 2. —Same—Publication of Order—Certificate of County Judge. It is not necessary in publishing the order of the commissioners court declaring the result of the local option election to state the particular issues of the paper in which the publication was made; the certificate of the county judge that publication was made for four successive weeks as required by law would be a sufficient statement of the fact. 3. —Same—Witness—Refreshing Memory. Upon a trial for a violation of the local option law, there was no error in' permitting the State’s witness to read over his testimony written in the grand jury book to refresh his memory; especially where he had already stated his testimony and the memorandum in the book was simply a reiteration of his testimony, 4. —Same—Evidence—Rebuttal—Affirmative Matter. • Upon trial for a violation of the local option law, there was no error to introduce a State witness, after the defendant’s evidence had been closed who testified to affirmative matter with reference to the sale of beer by defendant and that he had the same analyzed. 5. —Same—Expert Chemist—Analysis—Per Cent, of Alcohol. Upon trial for a violation of the local option law the testimony of an expert admitted with reference to the analysis of certain liquor and the per cent, of alcohol it contained, which had no connection with any liquor sold by the defendant and did not show that it was of the same character as that sold, was inadmissible.
51 Tex. Crim. 361Willlams v. State (1907)
51 Tex. Crim. 361Williams v. State (1907)
Tried below before the Hon. Mike E. Smith. Appeal from a conviction of robbery; penalty, thirty-five years imprisonment in the penitentiary.
51 Tex. Crim. 366Young v. State (1907)
Appeal from the County Court of Ellis. Tried below before the Hon. J. P. Spencer. Appeal from a .conviction for violating public road law as delinquent poll tax payer; penalty, a fine of $4. The information, after formal averments, alleged that defendant was a delinquent poll tax payer in E County, Texas, and was liable under the law to work upon the public road leading from the town of I, E County, Texas, to the town of M, E County, Texas, in road precinct No. 3 in said county, and was legally summoned to attend and work on said road at a time and place designated by J. H. J., road commissioner for said precinct, to wit on the 22nd day of November, A. D. '1906. And the said C. J. Y. did then and there willfully fail and refuse" to attend at the time and place aforesaid and did willfully fail and refuse on or before the day upon which he was summoned as aforesaid to attend, to pay to said road commissioner, road superintendent, or road overseer the sum of $3, against the peace and dignity of the State.
51 Tex. Crim. 367Benson v. State (1907)
1. —Murder in First Degree—Continuance—Bill of Exceptions—Impeaching Testimony. A motion for new trial is not ordinarily granted on account of the absence of impeaching testimony set out in the motion for continuance. Besides the appellate court will not look through a stenographic report or a record, where the exceptions are scattered over a number of pages and not taken in such condensed and logical shape as to intelligently present the evidence excepted to and the ground for objection thereto; separate bills of exception to the rejection or admission of testimony are always preferable. 2. —Same—Cross-Examination—Discretion of Court—Bills of Exception—Inquest Proceedings. Testimony taken at an inquest could be offered by the State to contradict its own witness only where the witness testified to some affirmative fact against the State and to its surprise; but where the bill of exceptions did not present this matter to the appellate court in such shape as to be reviewed the same could not be considered. The right to cross-examine or to ask leading questions of one’s own witness is a matter within the discretion of the court, when the witness is hostile. 3. —Same—Evidence—Leading Question. Where upon trial for murder the State objected to certain questions by the defendant to the witness, as to what direction deceased took when he was shot, as leading, but the desired answer was made by the witness and admitted, there was no error. 4. —Same—Evidence—Cross-Examination—Conclusion of Witnesses. Upon trial for murder, there was no error to permit the State to cross-examine defendant’s witness and ask him if others were present and could have seen or did see a knife. 5. —Same—Reiteration of Testimony—Discretion of Court. Upon trial for murder, it was entirely competent for the court to put a limit to the examination of a witness and prevent counsel from having him repeat his testimony. 6. —Same—Colloquy Between Counsel and Court. Where upon trial for murder a colloquy between counsel and the court ensued as to whether questions propounded by the defendant’s counsel were leading and which did not affect the rights of defendant, there was no error. 7. —Same—Charge of Court—Express Malice—Strangers—No Previous Grudge. Upon a trial for murder, where the evidence showed that the parties were strangers and there was no previous grudge, a question of time in which a formed design to kill was formed was a factor in forming the intent, and the court correctly charged in defining express malice that no definite space of time was necessary to intervene between the formed design to kill and the actual killing, and that a single moment was sufficient. 8. —Same—Self-Defense—Charge of Court—Character of Deceased—Actual Attack. Where upon trial for murder, there was no evidence of the character and disposition on the part of the deceased known to appellant, and there was evidence that deceased may not from defendant’s standpoint have been in the very act of making an attack on him, it was error in the court’s charge on self-defense to charge on the character and disposition of the deceased, and to base the charge alone on an actual attack by deceased on defendant, instead of also of an attack about to be made. 9. —Same—Self-Defense—Charge of Court—Knife Found After Trial—Practice on Appeal—Newly Discovered Evidence. After an appeal has been perfected to the Court of Criminal Appeals, the transcript can only contain what transpired during the trial and subsequent thereto in connection with the case during the term of the court and until the appeal is finally perfected thereafter, and although important evidence may have been discovered subsequent to the adjournment of court, there is no method by which the same can be gotten into the record as an integral part of the case to be considered on appeal; and the fact that subsequent to the affirmance of the appeal, a knife, alleged to have been that of deceased, was found could not be considered. 10. —Same—Charge of Court—Weight of Testimony—Singling Out Fact. Upon trial for murder, where the State had attempted to impeach its own witness on the ground of surprise, it was error on the part of the court’s charge to undertake to tell the jury the character of the contradictory statement of the witnesses, and to point out testimony showing that said witnesses had failed to testify at the inquest trial that deceased turned and advanced toward the defendant at the time of the shooting. Brooks, Judge, dissenting.
51 Tex. Crim. 382Early v. State (1907)
1. —Murder in Second Degree—Continuance—Materiality of Testimony, Where upon trial for murder the testimony of the absent witness would not have had any material influence as to the verdict of the jury, and no diligence was shown, there was no error in overruling the motion. 2. —Same—Diligence—Continuance—Contradictory Testimony. Where upon trial for murder the motion for continuance did not state sufficient diligence, and the testimony of the absent witness was of a contradictory character, there was no error in overruling the motion. 3. —Same—Jury and Jury Law—Opinion—Challenge for Cause. Upon trial for murder where a number of jurors stated that they had heard of the conviction of defendant at a previous trial, but there was no contention that they had formed any opinion as to the guilt or innocence of defendant, there was no error. 4. —Same—Evidence—Declarations of Deceased—Res Gestae. On trial for murder, there was no error in rejecting testimony of witness for the defense with reference to a statement by deceased of what he might have done in a former altercation between himself and defendant, in no way connected with the difficulty in which the homicide occurred. 5. —Same—Unconnected Incident—Evidence—Collateral Fact. Upon trial for murder, testimony that defendant shortly before the homicide drove about with a couple of negro women and in no way connected with the homicide, was not admissible. 6. —Same—Deadly Weapon—Intent—Charge of Court. Where upon trial for murder the defendant did not actually slay the deceased • and the knife used was conceded to be a deadly weapon, the court should not have charged under article 717, Penal Code, as to the means used in the homicide and the intent conveyed thereby. 7. —Same—Misconduct of Jury—Telephone—Conversation With Third Party. On trial for murder it was reversible error to permit a number of the jurors to carry on conversation over the telephone with members of their families and other persons, without the consent and not in the presence of the court, and 'where it was not shown by the State by testimony of other witnesses than the jurors that the jurors had not been tampered with. 8. —Same—Charge of Court—Resisting Officer—Arrest. Upon trial for murder, where the charge of the court did not assume that defendant assisted his codefendant in resisting an officer who tried to make an arrest, and other portions of the charge properly submitted the law on this phase of the case, there was no error. 9. —Same—Self-Defense—Charge of Court—Reversible Error. Where upon trial for murder, the evidence showed that the defendant did not actually kill the deceased, or which called for a charge on self-defense, and such charge may have worked injury to the defendant, there was reversible error. Following Monroe v. State, 81 S. W. Rep., 726. 10. —Same—Defense of Another—Arrest. See opinion for a charge of court on defendant’s right to interfere on behalf of codefendant whom deceased was attempting to arrest for being drunk in public place, in connection with other portions of the court’s charge, which was held not to be reversible error. 11.—Same—Evidence—Animus—Rebuttal. Where upon trial for murder the case against the defendant was mainly supported by proof of his animus towards deceased growing out of a former difficulty between them, it was error to exclude testimony on part of the defense to show by expressions from defendant and the deceased to the witness that the former difficulty had been settled and the parties were friendly; the State not having proved by any direct evidence any actual participation by defendant in the difficulty. Brooks, Judge, dissenting.
51 Tex. Crim. 393Goad v. State (1907)
Bigamy—Marriage—Living Wife—Necessary Proof. In a prosecution for bigamy it is necessary that the State must not only prove the two marriages, but it must prove the first marriage alleged in the indictment, that the defendant is the same person alleged in the first marriage, and that the identical woman to whom the defendant was first married was living at the time of the consummation of the second marriage.
51 Tex. Crim. 395Ex Parte Smith (1907)
The opinion states the case.
51 Tex. Crim. 397Swinger v. State (1907)
1. —Malicious Mischief—Domesticated Birds—Charge of Court. Where upon trial for malicious mischief, the evidence showed that the turkeys, which it was charged the defendant had maliciously, etc., killed, were depredating upon defendant’s crop, the court should have charged the jury that he had a right to defend his crop against the intrusion of and damage by these domesticated birds, 2. —Different Offenses—Several Counts—Charge of Court. Where upon trial for malicious mischief, one count in the indictment charged defendant with wilfully and maliciously killing with intent to injure the owner, and another count charged him with wilfully and wantonly killing certain turkeys, etc., and the court submitted both counts, but charged the jury if they believed that the killing- was wilfully and wantonly done with intent to injure the owner to convict, and refused to charge that it must be wilfully and maliciously done, there was reversible error. 3. —Same—Principal—Charge of Court. Where upon trial for malicious mischief, the State relied on testimony that defendant encouraged his s'on in killing certain turkeys, the court should have charged that if the defendant himself did not kill them, that in order to hold him responsible he must have encouraged his son in such a way as to make him a principal in the transaction.
51 Tex. Crim. 399Burnsides v. State (1907)
1. —Robbery—Personating Officer—Statutes Construed. Under article 857, Penal Code, there must be a threat to do some illegal act injurious to the character, person or property of the prosecutor by which he is fraudulently induced to part with and deliver something of value to defendant, with intent on his part to appropriate same. 2. —Same—Charge of Court—Illegal Act. In a prosecution under article 857, Penal Code, the threat must be to do an illegal act, consequently the threat to do a legal act would not come within the offense defined, and a charge that if defendant threatened to put prosecutor in jail and thereby compelled him to pay money to defendant to convict, was error if the evidence showed that defendant had a right to arrest prosecutor and put him in jail, although the subsequent taking of money from prosecutor might constitute another offense. 3. —Same—Arrest in Good Paith—Charge of Court. Where upon trial for falsely personating an officer, etc., the. testimony of defendant’s witnesses showed that he claimed he had been specially authorized to make arrest of persons unlawfully riding on railway trains, and that he arrested prosecutor rightfully for this offense, and while taking him to the marshal, prosecutor offered to pay defendant to release him, etc., and there was no suggestion of robbery at the time of the arrest, which defendant made in good faith, the court should have charged the jury that whether defendant was an officer or not, if he acted in good faith to acquit him.
51 Tex. Crim. 404Seiwert v. State (1907)
The opinion states the case.
51 Tex. Crim. 406Stephens v. State (1907)
The opinion states the case.
51 Tex. Crim. 408Smyth v. State (1907)
1. —False Imprisonment—Information—Assault. In' a prosecution for false imprisonment where the information alleged an assault and detention without lawful authority the same was sufficient on motion to quash. 2. —Same—Judge of Election—Sufficiency of Evidence—Memorandum—Verbal Arrest. Where upon trial for false imprisonment, the evidence showed that during an election where prosecutor was making out his ticket lo vote and was using a memorandum of some sort in making out his ticket but was orderly and quiet, and the defendant who was the judge of said election had prosecutor arrested on a verbal order for making out his ticket in that manner, and refused to let prosecutor vote but kept him in custody until after the close of the election without written complaint. Held, that the act of defendant was not only without' express authority of law but without authority of law. 3. —Same—Judicial Act—Presiding Judge of an Election—Power of. Where upon trial for false imprisonment the evidence showed that the defendant, who was the judge of an election, verbally ordered the arrest of the prosecutor without complaint or warrant, because the latter was using some memorandum to make out his ticket to vote at an election; and that defendant kept prosecutor in custody without allowing him to vote at said election and until said election was closed; and that there was neither a breach of the peace nor a felony committed by prosecutor at such election, such power was not conferred by law upon defendant and' he was acting outside of the power authorized by statute, and could not claim that he was acting in a judicial capacity within the scope of his authority. 4. —Same—Charge Refused—Evil Intent. Where upon trial for false imprisonment the court in his charge properly defined willful, and gave the defendant the full benefit of the jury’s belief as to whether his act was done willfully, there was no error in refusing a requested charge which involved ignorance of the law on the part, of the defendant. 5. —Same—Charge of Court—Other Means Than Assault. Where upon trial for false imprisonment the information alleged that the defendant willfully and by assault and actual violence detained the prosecutor, there was no reversible error in the court’s charge that the use of other means than an assault might constitute the offense; besides the assault was fully proven in the case. 6. —Same—Definition of the Offense—Principal—Assault. Every detention and imprisonment embraces the idea of an assault, and it is immaterial whether the defendant actually committed the assault, or was present and illegally ordered an officer to take the prosecutor into custody, which was done. ON MOTION FOB BEHEABING. 7.—game—Election law—Statutes Construed—Misdemeanor. Under section 37 of the Election Law of 1903 (which applied in a prosecution for false imprisonment), the presiding judge of election was not authorized to act in cases of misdemeanor and issue warrants, but could only act in felony cases and breaches of the peace committed at such election; and under section 65 o; said act there was no inhibition against carrying a memorandum into the voting booth by the voter; which eliminates the reason upon which the presiding judge acted in ordering the arrest of prosecutor, and strengthens the propositions of law announced by the court in the main opinion.
51 Tex. Crim. 417Keipp v. State (1907)
The opinion states the case.
51 Tex. Crim. 420Reyes v. State (1907)
1. —Burglary—Arrest of Judgment—Indictment—Private Residence. Where the indictment charged burglary in the usual form and that the burglarized house was occupied by the alleged owner, but did not allege that it was' a private residence, as defined in article 839a, Penal Code, and the evidence showed that the house was burglarized in the daytime, the offense was not within the purview of the terms of said article, and a motion in arrest of judgment on the ground that the burglarized house was a private 'residence and the indictment must so allege, was without merit, even though said house was a private residence. 2. —Same—Sufficiency of Evidence. Where upon trial for burglary the evidence showed that defendant had been at the burglarized house shortly before the burglary; that he was met going in the direction of it on the morning of the burglary and in clqse proximity: that he sold the knife that was taken from the house not a great while afterwards, stating that he bought, it at a certain store, which was shown to be false, the evidence was sufficient to sustain a conviction. 3.—Same—Charge of Court—Errors of Trial Court—Practice. Under article 723, Code Criminal Procedure, in order to secure the advantages of error in regard to charging the jury, it is necessary that an exception be reserved either on the trial or in the motion for a new trial. Following: Manning v. State, 46 Texas Crim. Rep., 332.
51 Tex. Crim. 423Brown v. State (1907)
Carrying Pistol—Deputation—Posse. Where a deputy sheriff orally summoned defendant to assist in an arrest and authorized him to carry a pistol, but the defendant went upon a different mission and engaged in a difficulty, a conviction for unlawfully carrying a pistol was authorized.
51 Tex. Crim. 424Williams v. State (1907)
Where upon trial for murder, the evidence showed that after a slight dispute between defendant and deceased, the former drew his pistol and shot the latter who made no demonstration, a conviction assessing the death penalty was authorized.
51 Tex. Crim. 425Leal v. State (1907)
Scire Facias—Complaint—Bail Bond—Information—Jurisdiction. Where a complaint was filed for a misdemeanor in the county court and a capias issued thereon and bail bond given by the defendant before an information was filed upon such complaint, the clerk acted without authority to issue capias and file bond, and the county court had no jurisdiction in forfeiting bail bond.
51 Tex. Crim. 427Smith v. State (1907)
The opinion states the case.
51 Tex. Crim. 428Wooten v. State (1907)
The following statement is taken from appellant’s brief and is substantially correct.
51 Tex. Crim. 430Weatherford v. State (1907)
The opinion states the case.
51 Tex. Crim. 431Hix v. State (1907)
1.—Assault With Intent to Murder—Aggravated Assault—Threats—Serious Bodily Injury. Where upon trial for an assault to murder, where the injured party had threatened to whip hell out of defendant, it was error in the court’s charge t.o limit the threats to those made for the purpose of inflicting death or serious bodily injury. The right of self-defense is given in all cases where the accused relies upon an assault to justify or even extenuate the punishment, 2.—Same—Law of Betreat—Charge of Court. Where upon trial for assault to murder resulting in a conviction for aggravated assault, there was evidence that the injured party brought on the attack and made the first assault, while defendant was seeking an explanation from him, the latter was not required to retreat, although the attack did not involve life or serious bodily injury, and the court should have so charged the jury.
51 Tex. Crim. 433Casey v. State (1907)
The opinion states the case.
51 Tex. Crim. 437Carnes v. State (1907)
The opinion states the case.
51 Tex. Crim. 441Huff v. State (1907)
Carrying Pistol—Criminal Intent—Insufficiency of Evidence. Where upon trial for unlawfully carrying a pistol the evidence showed that the defendant was directed by his employer to take the pistol to the latter’s store, which instruction the defendant was Carrying out when arrested, there was no offense.
51 Tex. Crim. 441Smith v. State (1907)
Forgery—Withdrawal of Notice of Appeal. Where appellant filed his motion to withdraw his notice of appeal in the trial court, his request was granted in the appellate court, when the trial court had failed to act.
51 Tex. Crim. 442Taylor v. State (1907)
Appeal from the County Court of Guadalupe. Tried below before the Hon. H. M. Wurzbach. Appeal from a conviction of rudely displaying pistol; penalty, a fine of $25.
51 Tex. Crim. 443Ford v. State (1907)
Aggravated Assault—Sufficiency of Evidence. See opinion for evidence held sufficient to sustain a conviction for aggravated assault.
51 Tex. Crim. 444Seay v. State (1907)
1. —Local Option—Publication—Contest. Where upon trial of-a violation of the local option law, it appeared that the publication of the order of the result of the local option election was suspended by action of the district court in a contest of said election pending therein, and that the same was published as suggested by the district judge in the form originally ordered by the county judge, but at a time subsequent thereto, and for the term of four successive weeks, there'was no error. 2. —Same—Time of Holding Election—Amendment of Statutes. Where a local option election was held and the result declared September 14, 1904, no election’ could be ordered within less than two years from said date, according to the amendment to article 3393, Revised Civil Statutes, and an election which was ordered September 11, 1906, was void, although the election was not held until October 6, 1906; this statute being mandatory.
51 Tex. Crim. 447Weatherford v. State (1907)
Local Option—Charge of Court—Prescription—Knowledge of Defendant. Where upon trial for a violation of the local option law the evidence showed that the defendant made no personal examination of the applicant for a prescription, the failure of the court to charge the want of knowledge on the part of defendant that the applicant was not sick in giving the prescription was not calculated to injure him.
51 Tex. Crim. 449Oates v. State (1907)
1. —Murder in First Degree—Indictment—Bobbery. In a prosecution for murder in the perpetration of robbery, it is not necessary that the indictment charge who was robbed or how or what he was being robbed of. 2. —Same—Evidence—Appearance of Prosecutrix—Identification—Opinion of Witness. Where upon trial for murder a witness for the defense testified that the prosecutrix and principal State’s witness failed to identify the defendant as being one of the parties at the killing of her husband the day following the homicide, the State should not have been permitted on cross-examination to show that the prosecutrix at this time was nervous, weak and crying, and had to be assisted up and down the stairs by officers at the jail. 3. —Same—Declaration of Third Parties—Immaterial Testimony. Upon trial for murder, the acts and declarations of other parties in the presence of defendant with reference to one of them shooting a pistol sometime before the homicide, and which had no direct connection with the same were inadmissible in evidence. i.—Same—Charge of Court—Accomplice—Corroboration—Beasonable Doubt. Upon trial for murder, a charge of the court that a conviction could not be had upon the testimony of an accomplice unless the jury first believed the accomplice’s evidence was true, and that it showed or tended to show that the defendant was guilty; and that then the jury could not convict unless the accomplice’s testimony was corroborated by other evidence tending to connect the defendant with the offense charged, etc., was reversible error. The facts must do more than tend to show guilt; they must be cogent enough to overcome the presumption of innocence and reasonable doubt. 5. —Same—Murder Committed in Perpretation of Bobbery—Malice. Upon trial for murder, it was reversible error to charge the jury that if any person in the perpetration or in the attempt to perpetrate a robbery upon another shall take the life of such other he shall be deemed guilty of. murder, and murder committed under such circumstances is murder in the first degree, as it authorized a conviction in the absence of malice. 6. —Same—Charge of Court—Principal—Erroneous Theory. Where upon trial for murder, the evidence showed that another fired the fatal shot that killed deceased and that the defendant was present, a charge which instructed the jury that if the defendant alone or acting with another, while engaged in the perpetration of robbery did with malice aforethought kill deceased, to convict him of murder in the first degree was reversible error, and did not correctly apply the law of principals to the facts in the case. 7. —Same—Form of Verdict—Practice. Upon trial for murder, where the evidence showed that the defendant did not fire the fatal shot and there was evidence that the prosecutrix or a codefendant fired the same, and the court undertook in his instructions to the jury to prescribe a form of verdict for murder in the first degree only, and omitted to give any form of verdict for a minor offense or that of acquittal, there was reversible error. 8.—Same—Charge of Court—Robbery—Harmless Error. See opinion for charge of court defining the penalty for robbery by the use of fire arms which was held to be harmless error.
51 Tex. Crim. 455Childress v. State (1907)
1. —Rape—Charge of Court—Intent to Rape—Plea of Guilty. Where upon trial for rape, the defendant pleaded not guilty to the main offense but guilty to an assault with an intent to rape, and the jury found him guilty of rape, he cannot be heard to complain that his plea of guilty to assault with intent to rape was defective in omitting to include the word “ by any persuasion” : the State not accepting his plea of guilty, and the defendant making no objection thereto at the time. 2. —Same—Charge of Court—Plea of Guilty—Intent. Upon trial for rape where there was no serious controversy about defendant’s intent in the assault, a charge of the court which instructed the jury that if they failed to find defendant guilty of rape then to find him guilty of an assault with intent to rape on his plea of guilty to that offense, was not calculated to injure defendant in the trial for rape on the question of intent. Davidson, Presiding Judge, dissenting. 3. —Same—Other Transactions—Limiting Testimony. Upon trial for rape, where there was some testimony suggesting that defendant had tampered with the prosecutrix previously, but there was no testimony showing a distinct transaction amounting to an offense, and there was no objection to such testimony, and no request that the court confine the jury to any one transaction, there was no error in failing to limit said testimony. 4.—Competency of Witness to Testify—Non-Age. Where upon trial for rape, there was no objection made to the qualification of prosecutrix as a witness, and no exception taken to the action of the court in permitting her to testify there was no error. Davidson, Presiding Judge, dissenting.
51 Tex. Crim. 463Myers v. State (1907)
1. —Assault With Intent to Rape—Definition of Offense—Penalty—Minimum— Constitutional law. Penalties for violations of the Penal Code of this State are within the sound discretion of the Legislature; and the statute defining the offense of an assault with intent to rape, which fixes a penalty at a term not less than two years in the penitentiary is constitutional and not violative of article 3 of the Penal Code. 2. —Same—Indictment—Assault. An indictment which alleged that the defendant did unlawfully then and there make an assault with the intent then and there of him the said M to commit rape in and upon one K, a woman, by then and there attempting by force, threats and fraud to ravish and have carnal knowledge of the said IC without her consent, etc., is sufficient to charge an assault with intent to commit rape upon the said K.
51 Tex. Crim. 464Cobb v. State (1907)
The opinion states the case.
51 Tex. Crim. 466Ex Parte Smith (1907)
The opinion states the case.
51 Tex. Crim. 468Moore v. State (1907)
The opinion states the case.
51 Tex. Crim. 471Mathonican v. State (1907)
The opinion states the case.
51 Tex. Crim. 472Jones v. State (1906)
The opinion states the case.
51 Tex. Crim. 478Coffman v. State (1907)
The charge on alibi was in the usual form. The opinion states the case.
51 Tex. Crim. 488Ex Parte Pollard (1907)
1. —Local Option—Election Precinct—Constitutional Law. An election precinct is not a subdivision within the contemplation of article 16, section 20 of the Constitution, for the purposes of holding local option elections. 2. —Same—Local Option Territory—Change of Law. Whenever a local option law is once legally put into operation in a given territory, it must remain in force until it has been voted out by the voters of the territory where such law was originally vitalized. 3. —Same—Amended Statutes—Statutes Construed—Status of Territory. Prior to the act of 1893 a different rule applied with reference to the change of local option territory, but where an election was held under the terms of the amended statutes passed in 1893, the status of" the territory under local option would remain under the operation of local option until an election is held by the voters of the original territory. Distinguishing: Whisenhunt v. State, 18 Texas Crim. App., 491; Woodlief v. State, 21 Texas Crim. App., 412, 4. —Same—Commissioners Court—Justice Precinct—Local Option. Whenever the commissioners court has divided a county into justice precincts and an election for local option has been held in either of them, it will remain in that territory until the people living within that territory shall vote it out; and the power of said court to change the precinct lines of that territory cannot affect the status of local option as it existed at the time of the change. 5. —Same—Constitutional Law—Authority to Vacate Law. Under article 16, section 20, neither the commissioners court nor any other body has authority to vacate and set aside a regular instituted local option law, this can only be done by. a vote of the people in the territory affected. 6. —Case Stated—Local Option Not Repealed. Where local option was declared by the people of a certain justice precinct on the 14th of December, 1893, which contained a certain election precinct which was afterwards attached to a different justice precinct by order of the commissioners court, and an election was held in said last justice precinct in 1896, embracing said detached election precinct, and which election resulted against local option and defendant was arrested for selling intoxicating liquor in such detached election precinct. Held: that local option was still in operation by virtue of the election held therein in 1893, while said territory was a part of said former justice precinct.
51 Tex. Crim. 492Wiginton v. State (1907)
1. —Local Option—Charge of Court—Validity of Election. Upon a trial for a violation of the local option law, where there was a controversy as to the validity of the election, the court should have submitted that issue to the jury and was not authorized to instruct the jury that local option was in force at the time of the alleged offense. 2. —Same—Intoxicating Liquor—Character of Beverage. Upon trial for a violation of the local option law, testimony with reference to the taste and color of the beverage as being similar to that of beer was admissible. The court should define what it takes to constitute intoxicating liquor.
51 Tex. Crim. 493Robertson v. State (1907)
1. —Rape—Demurrer to Evidence—Female Under Age of Consent. Where upon trial for rape, there was no controversy that the defendant had carnal intercourse with a female under the age of consent, the court correctly refused to instruct the jury to acquit. 2. —Same—Charge of Court—Date of Offense Alleged in Indictment. Where upon trial for rape, the evidence showed but one act of carnal intercourse, there was no error in the court’s charge that if the defendant at any time within one year before the presentment of the indictment in the case had carnal knowledge of the prosecutrix to find him guilty; and the question of another indictment pending which alleged a different date but which was not in evidence, was not in the case. 3. —Same—Defendant’s Belief of the Age of Prosecutrix. Upon trial for rape the defendant could not justify his act by proof that he believed that the female was over 15 years of age at the time he had carnal intercourse with her. 4. —Same—Argument of Counsel—Special Charge Necessary. Upon trial for rape where no special charge was requested to expunge objectionable argument of State counsel, and such argument was not itself of such character as required a reversal, there was no error.
51 Tex. Crim. 496McCrary v. State (1907)
The indictment charged the defendant as the agent of prosecutor G-. A. Maxfield with embezzling an organ the property of the said Max-field, and also in another count for embezzling the proceeds of the- sale of said organ. The opinion states the case.
51 Tex. Crim. 498Cowles v. State (1907)
1. —Bape—Evidence—Exhibition of Feelings—Emotional Conduct. Upon trial for rape emotional exhibition of feelings and conduct by the prosecutrix, as well as statements by her some time after the alleged rape, etc., are not admissible as original testimony; there being no attempt to impeach her testimony. 2. —Same—Insufficiency of Evidence—Out-Cry. Where upon trial for rape the evidence showed that the prosecutrix was over the age of consent, strong and in good health, and made no out-cry at the time of the alleged rape, the transaction occurring in a populous community; that there were no bruises or other evidence of violence; that she remained in appellant’s house for several days thereafter, and that she did not disclose the fact of the alleged rape for two or three months, etc., and there was no corroboration as to the rape, the evidence is insufficient to sustain a conviction.
51 Tex. Crim. 500Mendias v. State (1907)
The opinion states the case.
51 Tex. Crim. 502McCrary v. State (1907)
The opinion states the case.
51 Tex. Crim. 506Alexander v. State (1907)
1. —Local Option—Information—Duplicity. Where in a prosecution for a violation of the local option law the information alleged in .one count three distinct transactions, the same was held to be bad on motion to quash. 2. —Same—One Sale—Different Persons. Where on a trial for a violation of the local option law the proof showed a sale to one person and that he treated the other two, the same would constitute a sale to the first person of all of the drinks. 3. —Same—Sale—Liquor Previously Ordered—Charge of Court. Where upon trial for a violation of the local option law, the evidence r-aisecl a question as to whether the transaction was a sale or a gift, the court should have charged on this phase of the case.
51 Tex. Crim. 507Kelley v. State (1907)
The opinion states the case.
51 Tex. Crim. 510Abbata v. State (1907)
The opinion states the case.
51 Tex. Crim. 513Neal v. State (1907)
The opinion states the case.
51 Tex. Crim. 517Esquival v. State (1907)
Assault to Murder—Statement of Facts—Certificate. Where upon appeal from- a conviction for assault to murder, the document purporting to be a statement of facts did not have attached to it a certificate that it was a true aind correct statement of all the facts proved on the trial of the case, the same cannot be considered on appeal.
51 Tex. Crim. 519Clark v. State (1907)
1. —Murder in Second Degree—Clothing of Deceased—Evidence. Upon trial for tnurder, there was no error in admitting in evidence the clothes of deceased after they had" been washed; their custody having been sufficiently-accounted for, and such testimony tending to show where the shots entered deceased. 2. —Same—Charge of Court—Murder in Second Degree. Where upon trial for "murder, the evidence showed that there was manslaughter in the case, and the court charged thereon, a charge of the court on murder in the second degree which omitted to charge upon malice aforethought or upon implied malice, and authorized the jury to find defendant guilty of murder in the second degree if he unlawfully killed deceased, was error. 3. —Same—Manslaughter—Charge of Court. Upon trial for murder it was error to interpolate the word “transport” in defining passion aroused by adequate cause in the court’s charge on manslaughter. See opinion for suggestions to trial judges. 4. —Same—Threats—Charge of Court—Statutes Construed. Upon trial for murder, a charge of the court on threats which stated that some overt act which was calculated to induce the belief, and which did induce the belief in the mind of the accused, etc., was not error. Article 713, Penal Code, requires some act then done which manifests an intention to execute the threats so made; and it is better practice to follow the statute. 5. —Same—Newly Discovered Evidence—Motion for new Trial. Where upon motion for new trial, it was shown by the affidavits of two witness that directly after the homicide they saw a pistol on deceased, and the only evidence on trial as to this was the testimony of the defendant that the deceased had made a demonstration as if to draw a pistol, the motion should have been granted.
51 Tex. Crim. 523Teague v. State (1907)
1. —Local Option—Former Conviction—Statutes Construed—Store Room. In a prosecution under the act of the Twenty-ninth Legislature, page 91 (laws 1905), providing that if any such person shall permit anyone to drink any intoxicating liquor, etc., within such place of business, etc., a conviction for permitting one party to drink would not be a bar to a prosecution of defendant for permitting other persons to drink liquor at the same time, in such place of business as each act of permitting a person to drink liquor in such place of business is .a separate offense. 2. —Same—Charge Refused—Place of Business. In a prosecution under the Act of the Twenty-ninth Legislature, page 91 (Laws 1905) which prohibits the drinking of liquor in the place of business of the vendor in local option territory, where the evidence .showed that defendant’s place of business or storeroom consisted of two different apartments, in one of which liquor was permitted to be drank, one being used as a storeroom and the other for taking orders for the liquor, etc., both rooms are in law defendant’s place of business, and a charge confining the offense to the room in which the orders for the liquor were taken was correctly refused. 3. —Same—Evidence—Method and Character of Business. In a prosecution for permitting liquor to be drank in defendant’s business place in local option territory it was proper to permit the State to show that defendant’s business place was conducted in the same building, a part of which was used for taking orders for the liquor and another for storing it; to show defendant’s character of business. 4. —Same—Agent Employee—Charge Refused. Upon a trial for violating the Act of the Twenty-ninth Legislature, page 91 (Laws 1905), for permitting persons to drink liquor in defendant’s place of business in local option territory, where there was evidence that the liquor was permitted to be drank by an employee in the absence of defendant, a requested charge that unless defendant knew that his clerk permitted the liquor to be drank in his place of business he could not be convicted, should have been given.
51 Tex. Crim. 526Teague v. State (1907)
1. —Local Option—Permitting Liquor to be Drank on Premises—Order for Local Option. Upon trial for a violation of the Act of the Twenty-ninth Legislature, page 91 (Laws 1905) prohibiting the drinking of liquor where the same is stored in local option territory, where the record show'ed that the order putting local option into effect was regular and had been published according to law, there was no error in the court’s instruction to the jury that local option was in effect in said territory. 2. —Same—Evidence—Character of Defendant’s Business. Where upon trial for permitting persons to drink intoxicating liquor upon the premises where it was stored in local option territory, the State introduced testimony as to the business defendant was engaged in, as that of taking orders for whisky in local option territory and to store the same for customers, there was no error. 3. —Same—Charge B,efused—Employe—Knowledge of Defendant. Where upon trial for permitting intoxicating liquors to be drank in the place of business where they were kept for storage in local option territory, the evidence showed that defendant’s clerk gave such permission while defendant was not present, etc., the court should have charged as requested that the jury must believe beyond a reasonable doubt that the defendant knew or had good reason to know of such act of his employee at the time it was committed; and this, although an affirmative charge on this issue, had been given.
51 Tex. Crim. 529Teague v. State (1907)
The opinion states the case.
51 Tex. Crim. 530Shiflett v. State (1907)
The opinion states the case.
51 Tex. Crim. 531Jordon v. State (1907)
Tried below before the Hon. E. B. Bichie. Appeal from a conviction of unlawfully issuing checks for merchandise; penalty, a fine of $5.
51 Tex. Crim. 539Byrd v. State (1907)
1. —Local Option—Verdict—Reforming Judgment. Where the judgment in a trial for a violation of the local option law was not responsive to the verdict, it was reformed in the appellate court so as to correspond with the verdict. 2. —Same—Allusion to Other Case—Practice on Appeal. Upon an appeal from a conviction of a violation of the local option law, the appellate court could not take cognizance of another case which constituted no part of the record in the case on appeal. 3. —Same—Theory of Defense—Charge Refused—Good Faith—Mistake of Fact. Where upon trial for a violation of the local option law, the evidence showed that the prosecuting witness ordered a quart of whisky through the defendant on the date charged, and that defendant received such order to forward same to be filled by a certain party outside of local option territory, which the latter agreed to fill; and thereafter in due time the defendant was informed that said whisky had arrived, and defendant relying on said information delivered a quart of whisky to said prosecuting witness in good faith, believing it to be the whisky ordered, the court should have submitted a requested charge on this phase of the case. 4. —Same—Pleading—Proof—Different Elections. Where the information charged a violation of the local option law in a certain territory voted on and passed in 1903, the State was required to prove the same as alleged, and when the defendant showed that said law was abrogated by an election on local option in the same territory in 1906, a prosecution under the law of 1903 could not be maintained.
51 Tex. Crim. 542Washington v. State (1907)
Tried below before the Hon. J. K. P. Gillaspie. Appeal from a conviction of assault with intent to rape; penalty, fifty years confinement in the penitentiary.
51 Tex. Crim. 547Holland v. State (1907)
The information, after setting out formal parts, alleged that defendant was then and there duly and legally licensed to engage in and pursue the occupation and business of selling spirituous, vinous and malt liquors and medicated liquors capable of producing intoxication, in quantities of one quart and less upon the prescription of a regular practicing physician, in full compliance with law, and at said time the sale of intoxicating liquor had been previously prohibited…
51 Tex. Crim. 550Huff v. State (1907)
The opinion states the case.
51 Tex. Crim. 553Ex Parte Clayton (1907)
Habeas Corpus—County Convict—Discharge of Fine by Imprisonment. Where a county convict who was fined in the sum of $28.20 had been confined in the county jail for ten days after the filing of his pauper’s affidavit and had not been hired out he was entitled to his discharge from custody under article 856, Code Criminal Procedure.
51 Tex. Crim. 555Dixon v. State (1907)
The opinion states the case.
51 Tex. Crim. 559Hardin v. State (1907)
The testimony for the State showed that the deceased and another got into an altercation, and that while deceased was being held, the defendant stepped up and cut him with a pocket knife; that the pocket knife had a blade about two and one-half inches long; that this occurred at night at a barber shop where a number of people had collected; that deceased died from the effect of the wounds. The killing occurred very suddenly and the whole difficulty lasted but a few moments; that there was music and dancing going on on the gallery of the barber shop and the difficulty arose suddenly; that both defendant and his brother were at the place of the difficulty. The brother of the defendant took the stand and testified that a number of colored people had gathered around the barber shop in the town of Itasca; that some one was playing the guitar and others were dancing on the gallery of the shop; that deceased and another, not the defendant, got into a fight; that after they separated, deceased started towards the witness and knocked witness down; that when witness arose deceased made at him again and witness cut him with a knife, killing him; that defendant was there but did not participate in the difficulty. This with the testimony stated in the opinion is a sufficient statement oP the case.
51 Tex. Crim. 564Harris v. State (1907)
1. —Burglary—Charge of Court—Elements of Offense—Ownership—Consent. Where upon trial for burglary the indictment charged that the same was committed. with intent to steal the property of prosecutrix, it was necessary for the court to charge the jury with reference to the constituent elements of theft, and not that the taking must be with the consent of prosecutrix. 2. —Same—Special Ownership—Charge of Court. Where upon trial for burglary, the prosecutrix testified that the clothing alleged to have been stolen was in her possession as a pledge, and another State witness testified that she saw defendant when he took the clothes and that he told the witness that they were his and the prosecutrix refused to let him have them, the court should have charged on defendant’s claim of right to the clothes.
51 Tex. Crim. 566Jeffreys v. State (1907)
The opinion states the case.
51 Tex. Crim. 569Stout v. State (1907)
Tried below before the Hon. Cullen C. Higgens. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. One of the State’s witnesses, the owner of the house burglarized, testified that he was away from the house some five hundred yards picking cotton; that he saw the defendant in company with another go to his house, and saw them push upon the door and go in, and saw them when they left.
51 Tex. Crim. 571Sartin v. State (1907)
1. —Manslaughter—Charge of Court—Bill of Exceptions. Where upon trial for murder the evidence showed that deceased and defendant got into an altercation and that the former beat the latter severely with a whip, drawing blood; that the defendant went to his residence, got a pistol and fired two shots at deceased, one of which proved fatal, and the court charged the law of manslaughter according to the facts in the case, there was no error; besides general exceptions without specifically pointing out error could not be considered. 2. —Same—Charge of Court—Insanity—Irresistible Impulse—Burden of Proof. See opinion for charge on the defense of insanity and irresistible impulse which was held to be correct, and applicable to the facts in the case. 3. —Same—Charge of Court—Restricting Evidence—Adequate Cause. Where upon trial for murder, there was evidence as to the existence of adequate cause, and also that defendant was insane at the time of the alleged offense, the court correctly limited the testimony of insanity to that issue; having also charged on the law of manslaughter. 4. —Same—Maltreatment by Physician—Charge of Court—Gross Negligence. Where upon trial for murder the evidence scarcely suggested the issue of improper treatment or neglect of deceased by the attending physicians, and taken in connection with other portions of the court’s charge, there was no error in the court’s charge requiring gross neglect or improper treatment of physicians to absolve the defendant from guilt.
51 Tex. Crim. 576Baxter v. State (1907)
1. —Swindling—Indictment—Deceit—Injury—Benefit—Statutes Construed. In a prosecution for swindling .where it appeared that defendant had executed a certain note to the party alleged to have been injured and obtained money thereon by means of false and deceitful pretenses and fraudulent representation, it was not necessary under article 946, Penal Code, to allege that any benefit accrued to the defendant or injury to the person intended to be defrauded. 2. —Same—Current Money—United States Treasury Notes—Variance—Statutes Construed. In a prosecution for swindling where the indictment alleged current money, proof that such money consisted of national bank notes constituted no variance under article 945, Penal Code. 3. —Same—Indictment—Fraudulent Pretense—Basis for Swindling—In Futuro. Where in a prosecution for swindling the indictment alleged as a basis for said offense defendant’s false statement about the ownership of certain land, whereby he obtained certain money, an allegation in said indictment that defendant intended to pay off a certain contract for cattle with the money so obtained was immaterial as’ it was in futuro and not necessary to be proved. [Rehearing refused at Tyler, October 30, 1907, without written opinion.—Reporter.]
51 Tex. Crim. 578Garner v. State (1907)
The opinion states the case.
51 Tex. Crim. 581Ex Parte Heidleberg (1907)
From Cheroke County. Original Application for Habeas Corpus for release from commitment under a capias pro fine issued on a judgment for violating a town ordinance.
51 Tex. Crim. 584Martinez v. State (1907)
1. —Burglary—Indictment—Daytime—Private Residence. In an indictment' which alleged a daytime burglary of a private residence by force, threats, and fraud, the allegation private residence was descriptive, and it devolved upon the prosecution to prove it; and where the evidence showed that the burglarized house was a private residence the allegation in the indictment was sustained, and there was no error. 2. —Same—Duplicity—Night-Time and Daytime Burglary. An indictment charging burglary may contain as many counts as is thought necessary by the pleader, where the prosecution is for the same transaction, and. one count may contain a daytime burglary and another a night-time burglary; and where an indictment charged a daytime burglary in the first count and in the second count a night-time burglary, it was not bad for duplicity. 3. —Same—Variance—Allegation—Proof—Handwriting. Where in a prosecution for burglary the discrepancy in the spelling of the name of the alleged owner of the house arose from bad handwriting, and it was evident that there was no misapprehension as to the name alleged, there was no error. 4. —Same—Sufficiency of the Evidence. See opinion for evidence held sufficient to prove want of consent, breaking and defendant’s guilt of a burglarious entry.
51 Tex. Crim. 587Miles v. State (1907)
Theft—Indictment—Community Property—Husband and Wife. Where upon trial for theft of money, the evidence showed that the wife in whom the indictment alleged the ownership had the exclusive control, management and actual possession of the money at the time it was taken, the allegation of possession and ownership in her was correct, and there was no error.
51 Tex. Crim. 590Keener v. State (1907)
1. —Theft—Felony—Copy of Indictment— Delay—Statutes Construed. Where upon trial for theft, the defendant objected to going to trial because he had not been previously served with a copy of the indictment, and the record showed that he had had the benefit of a certified copy of the indictment delivered to his counsel; that two continuances were granted before he was called upon for trial, and that after a lapse of nine months after the first continuance he was forced to trial, and that he was out on bail, there was no error. Article 540, Code Criminal Procedure must receive a reasonable construction although mandatory in terms. Distinguishing Brewin v. State, 48 Texas Crim. Rep., 51, 85 S. W. Rep., 1140. 2. —Same—Accomplice—Collateral Facts. Where upon trial for theft, the matters about which defendant cross-examined a State’s witness, were collateral to the main issue and were denied by the witness, and in no wise suggested that the witness was an accomplice with defendant, the contradiction of this State’s witness, who was thereby made defendant’s witness by another State’s witness, was not authorized. 3. —Same—Contemporaneous Offenses—Felony—Charge of Court—Cross-Examination. Where the prosecution for theft was based solely upon one transaction, and this constituted a case of felony, and the defendant received the minimum punishment, there was no error in not charging on other contemporaneous thefts in evidence; which were adduced in cross-examination, and to limit such testimony.
51 Tex. Crim. 595Woods v. State (1907)
1. —Scire Facias—Judgment Nisi—Unavoidable Absence—Exonoration. Where upon trial of a scire facias upon a judgment nisi, the defendant showed that at the time of the forfeiture of the bail bond he was held in custody on a similar charge in another county, and that he subsequently appeared and responded to the accusation against him, he was exonerated under subdivision 3, article 488, Code Criminal Procedure. 2. —Same—Judgment Nisi—Bail Bond—Description of Offense. Where the bail bond taken in the case was for violating the local option law, the same was invalid for want of sufficient definition of the offense.
51 Tex. Crim. 596Pool v. State (1907)
The opinion states the case.
51 Tex. Crim. 598Warren v. State (1907)
The opinion states the case.
51 Tex. Crim. 602Flagg v. State (1907)
1. —Theft of Mule—Want of Consent—Fraudulent Appropriation—Charge of Court. Upon trial for the theft of a- mule, where it appeared that defendant had a right to believe that he had the consent of the owner of the alleged property to the taking, and there was a question whether he intended at the time of the taking to appropriate the mule, the court should have charged article 861 of the Penal Code, and there was reversible error. 2. —Same—Circumstantial Evidence—Charge of Court. Where upon trial for theft of a mule, the defendant admitted the taking, was found in possession of the animal, and the only question left was that of intent with which the taking was accomplished, no charge on circumstantial evidence was required. 3. —Same—Filing of Indictment—Date of Taking. Upon trial for the theft of a mule it was necessary to show that the taking was prior to the filing of the prosecution. 4. —Same—Confessions—Arrest—Warning—Charge of Court. Upon trial for the theft of a mule, where it did not pertinently appear by the testimony that a legal warning was not given, it was not the duty of the court to charge upon it.
51 Tex. Crim. 604Reeves v. State (1907)
Forgery—Indictment—Innuendo Averments. Where in a prosecution for having in his possession a forged instrument with intent to use and pass the same as true, the instrument set out in the indictment imported upon its face a pecuniary obligation, innuendo averments were not necessary.
51 Tex. Crim. 605Johnson v. State (1907)
The opinion states the case.
51 Tex. Crim. 608Ex Parte Davis (1907)
Theft of Horse—Habeas Corpus—Kidnapping. A party accused of the theft of a horse who fled to the State of Louisiana, and according to his statement was kidnapped by the officer and brought back to Texas for trial could not avail himself of the writ of habeas corpus in order to procure his enlargement and discharge.
51 Tex. Crim. 610Conant v. State (1907)
1. —Perjury—Charge of Court—Fact Testified to by Defendant. The court may select one or more of the assignments of perjury and inform the jury of their materiality, but to affect the party accused of perjury, there must be an averment in the indictment that he swore to false testimony, and the jury should be informed by the charge of the court which assignment or assignments of false testimony is submitted to them as the basis for their verdict; and where the charge failed to state any testimony given by defendant upon the trial during which he is alleged to have testified falsely, as alleged in the indictment, there was reversible error. 2. —Same—Qualified Witnesses—Accomplice—Number of Witnesses. Where upon trial for perjury the State relied on the testimony of an accomplice, it was error to charge that if the jury found the testimony of the accomplice true that then his testimony must be corroborated. The accomplice was a discredited witness and there must be at least one credible witness, independent of the accomplice, in order to convict for perjury; the court’s charge did therefore not present the law in regard to the quantum of proof when an accomplice is used as a witness. 3. —Same—Charge of Court—Credible Witness—Conspiracy. Where upon trial for perjury the evidence showed that the principal State’s witness, with defendant and others entered into a conspiracy to swear falsely for money, and that they carried out their conspiracy, said witness was not only an accomplice but guilty of different felonies which destroyed his character as a credible witness, and the court should have so informed the jury.
51 Tex. Crim. 614Ex Parte Curlee (1907)
Habeas Corpus—Local Option—Question of Territory. Where upon trial for a violation of the local option law, it .was contended by defendant that the local option law was not in force in the territory where the alleged violation had occurred, because on the day of the election the boundary thereof had been changed by the commissioners court so as to embrace territory not theretofore included in the order of the election; and it appeared that the vote was not shown to have been affected by such change, and that the defendant violated the local option law in territory embraced in the order at the time it was made, and not in any new territory. Held that the law was in force in the place of the alleged offense.
51 Tex. Crim. 616Warren v. State (1907)
The opinion states the case.
51 Tex. Crim. 618Haygood v. State (1907)
According to the State’s brief, the facts briefly stated are these: The prosecutor ICamegay was in his field picking cotton. Appellant rode up to the fence, called him to the fence; they engaged in a conversation, when the appellant became angered at the prosecutor, drew his pistol, and fired twice at him. and rode off. This theory was controverted by the appellant, and he claimed that he shot in self-defense [or to frighten the injured party]. The opinion states the case.
51 Tex. Crim. 620Parnell v. State (1907)
1. —Murder—Manslaughter—Evidence—Clothes of Deceased—Charge of Court —Singling Out Fact. Upon trial for murder, it was error to- admit testimony with reference to a certain hat which had spots on it supposed to- be blood and gun shot holes through it, and which was like the hat of the deceased and was worn by a co-defendant, but which had no connection with and could throw no light on the homicide, and which was seen after the homicide sometime and not in the presence of the defendant. It was likewise error to single out this testimony in the charge of the court and comment on its relevancy and importance, 2. —Same-7-Charge of Court—Murder in Second Degree—Principal—Manslaughter—Self-Defense. Upon trial for murder, where the evidence showed that several parties were engaged in the difficulty, and that there was a question as to whether the defendant or his codefendant inflicted the deadly blow upon deceased; and that defendant interfered in the defense of his son who was held by deceased; and the evidence also showed that defendant knew nothing ’ about the previous assault upon his son by deceased, or as to who was the aggressor when he interfered, the court should have charged the law of principals, and the law of defense of another, and should not have complicated his charge with the law of self-defense, and should not have charged a defense of another against an unlawful attack in submitting murder in the second degree. The same error occurred in the court’s charge on manslaughter. 3. —Same—Charge of Court—Adequate Cause—Aggravated Assault. Where upon trial for murder, there was evidence that defendant interfered for the protection of his son, who was held down by deceased, the court erred in defining the various adequate causes in not instructing the jury that an assault upon defendant’s son might be adequate cause; and the court should also have instructed on aggravated assault, as the evidence suggested that the defendant’s act was not perhaps the cause of the death of the deceased. 4. —Same—Charge of Court—Intent—Codefendant. Upon trial for murder, where the evidence raised the question whether the defendant’s act or that of a codefendant was the cause of the death of the' deceased, it was error in the court’s charge on manslaughter to make the defendant’s guilt depend on that of his codefendant, without basing defendant’s criminality upon his own intent. 5. —Same—Criminal Intent—Knowledge of Defendant. Where upon trial for murder, it appeared that the defendant interfered in a difficulty between his son and deceased, and knew nothing as to who was the aggressor in said difficulty, testimony as to said prior difficulty should have been excluded, unless it was shown that defendant had some guilty knowledge concerning said previous difficulty. 6. —Same—Assault With Intent to Murder—Aggravated Assault. Where upon trial for murder, the evidence showed that defendant after the first difficulty with deceased again fired at deceased, but without deadly effect, the court should have charged upon assault with intent to murder and aggravated assault, since the evidence raised the question as to whether defendant or his codefendant was the cause of the death of the deceased by a wound inflicted during the first difficulty.
51 Tex. Crim. 629Dobbs v. State (1907)
1. —Murder in First Degree.—Change of Venue—Prejudice—Impartial Jury. Where upon trial for murder, the evidence showed, upon a hearing of a motion for change of venue, that there was so great a prejudice in the county against defendant as to preclude a fair and impartial trial of his case by a fair and impartial jury, it was error not to grant the motion. 2. —Same—Circumstantial Evidence—Charge of Court. Where upon trial for murder the evidence showed that defendant was in such juxtaposition of the crime, from the State’s standpoint, as to preclude the issue of circumstantial evidence; and the testimony of the defense showed that defendant and his son participated in the killing, and the intent with which said act was committed alone was to be ascertained, it was not necessary to charge on the law of circumstantial evidence.
51 Tex. Crim. 633James v. State (1907)
The opinion states the case.
51 Tex. Crim. 634Ex Parte Haney (1907)
The opinion states the case.
51 Tex. Crim. 637Burks v. State (1907)
1. —local Option—Indictment—Order of Publication. ■ An indictment charging a violation of the local option law, which alleged that the order declaring the result of a local option election was published by the commissioners court is fatally defective. Following Carnes v. State, 50 Texas Crim. Rep., 282, 17 Texas Ct. Rep., 526. 2, —Same—Commissioners Court—Vacating Election—Statutes Construed. • The commissioners court under article 3390, Revised Civil Statutes, had no authority of law to vacate an order of election for local option and order another election for the same purpose, instead of declaring the result of said first election; and the second election was void. 3.—Same—Irregularity—Contest—Jurisdiction. Whether the first election was regular or irregular, fraudulent or honest as to the matters occurring on the day of the election, or whether the election was carried out properly under the law of 1005, was not a matter of adjudication by the commissioners court; these matters could be settled only in a contest in the district court. Distinguishing Holland v. State, decided at recent Dallas term.
51 Tex. Crim. 641Kellett v. State (1907)
The opinion states the case.
51 Tex. Crim. 643Garland v. State (1907)
The opinion states the case.
51 Tex. Crim. 645Smith v. State (1907)
The opinion states the case.
51 Tex. Crim. 646Jordan v. State (1907)
The opinion states the case.
51 Tex. Crim. 648Johnson v. State (1907)
1. —Carrying Pistol—Evidence—Arrest on Information. Where upon trial for unlawfully carrying a pistol, objection was made to the testimony of a State witness that he had informed officers of the law that defendant was carrying a pistol and to search him, which the officers did and found the pistol, there was no error; the statute providing for such arrest; besides there was no injury to defendant. 2. —Same—Charge of Court—Defendant’s Premises—Place of Business. Where upon trial for unlawfully carrying a pistol the evidence showed that the defendant was neither on his own premises nor at his place of business when he was found carrying a pistol, there was no error that the court’s charge failed to instruct the jury that defendant had a right to carry a pistol at his place of business. 3. —Same—Charge of Court—Habitual Carrying. Where upon trial for unlawfully carrying a pistol, the evidence showed that the defendant habitually carried a pistol between his home and his place of business, it was not necessary for the court to have defined what was meant by habitual carrying of the pistol; and especially where the evidence showed that defendant’s claim that he carried the pistol to prevent depredations upon his property was a pretext. 4. —Same—Carrying Pistol on and About Person. Where upon trial for unlawfully carrying a pistol, the evidence showed that defendant carried said pistol in a basket which he held in his hand, such was carrying a pistol on and about his person, as prohibited by law.