Volume 52 — Texas Criminal Reports

<p>The opinion states the case.</p>

<p>Carrying Pistol—Requested Charge—Want of Criminal Intent.</p> <p>Where upon trial for unlawfully carrying a pistol, there was evidence that the defendant was on his way to carry the pistol in question to the house of a friend from whom he had borrowed $5, and to be left there as a pledge or security for said money by request of said friend, and that defendant was on his way on the usually traveled route between his house and that of his friend when he got into an altercation with a third party and shot at him with the pistol; the court should have given defendant’s requested charge to acquit upon this phase of the case.</p>

<p>1. —Theft From Person—Charge of Court—Different Counts in Indictment.</p> <p>Where upon trial for theft from the person, the indictment contained two counts, one for privately stealing and the other for sudden taking, and the law as to both counts was defined in the charge, but only that as to private taking was applied to the facts and submitted to the jury, who were further instructed not to consider the other count in the indictment, there was no error. Following McLin v. State, 29 Texas Grim. App., 171, 15 S. W. Rep., 600.</p> <p>2. —Same—Charge of Court—Private Stealing—Public Place.</p> <p>Where upon trial for theft from the person the evidence showed that the money was abstracted from prosecutor’s pocket without his knowledge while he sat asleep in the barber shop, the defendant remarking to the bystanders at the time that prosecutor was his brother, there was no error in the court’s charge that it was not necessary that the taking be done in a concealed manner and out of the observation of others.</p> <p>3. —Same—Intent to Appropriate—Charge of Court.</p> <p>Where upon trial of theft from the person, all the circumstances adduced in evidence indicated that the defendant had the present intent at the time of the taking to appropriate the money abstracted from prosecutor’s pocket, .a charge of the court that defendant must have the intent to deprive the owner of the value of the property was sufficient without submitting a further charge on the issue of intent to appropriate.</p> <p>4. —Same—Charge of Court—Theft—Misdemeanor.</p> <p>Under an indictment charging theft from the person, there cannot be' a conviction for an ordinary theft, and the court was not required to charge the law on simple theft as a misdemeanor.</p>

The opinion states the case. Leaving out the introductory part of the indictment, and also that portion which charges the theft of the property taken, the same alleged: “that the defendant did then and there unlawfully and willfully make an assault upon the person of A. And then and there by said assault and by violence to the said A, and by putting the said A in fear of life and bodily injury, and then and there by using and exhibiting a knife, said knife then and there…

<p>1. —Bape—Evidence—Acts and Declarations of Third Parties.</p> <p>Where upon trial for rape the defendant objected to certain acts and declarations of the mother of the female child alleged to have been raped, to the effect that said mother was crying, was fumbling with a pistol when inquiring for defendant, and threatened to kill him at the time she went to defendant’s house after the alleged offense; and the court held the question in abeyance, and in the course of the trial the same class of evidence was brought out on cross-examination of defendant and his witnesses, and the court failed to announce any ruling on the point of objection, held: reversible error and that this class of testimony was highly prejudicial to the rights of defendant and should have been excluded.</p> <p>2. —Same—Evidence—Animus of Prosecution.</p> <p>Where upon trial for rape the defense had a theory that the animus of the prosecuting witness was based upon ill feeling against the defendant growing out of a debt due by him to her little boy, the inquiry both by the State and the defense should have been limited to that fact; and the opinion of said prosecuting witness as to the guilt of defendant of the crime of rape and that she intended to kill him on this account was not legitimate evidence.</p> <p>3. —Same—Evidence—Bes Gestae—Outcries of Party Injured.</p> <p>Upon trial for rape, there was no error to permit the mother of the female child alleged to have been raped to testify to complaints made by said child as to her physical condition and pains in her privates, the day following the day the crime is alleged to have been committed.</p> <p>4. —Same—Evidence—Contradictory Statements by Witness—Predicate.</p> <p>Upon trial for rape, the court should have permitted the defendant to contradict the prosecutrix mother as to various statements made by her as to her daughter not being raped, just after the offense is alleged to have been committed, and to lay the predicate therefor.</p> <p>5. —Same—Declaration of Third Parties.</p> <p>Upon trial for rape, statements made by other parties while the defendant was not present should not be introduced in evidence to prejudice him in the trial of his case.</p>

<p>1. —Theft—Money—Value—Evidence—Currency.</p> <p>Where upon trial for theft the evidence showed that the money alleged to have been stolen was a United States currency ten dollar bill, the value of the money stolen was sufficiently proved as an independent fact.</p> <p>2. —Same—Confession—Sufficiency of Evidence—Corpus Delicti.</p> <p>The rule now, as laid down by this court, is, that a confession may be used in making out the corpus delicti. However, in the case at bar the State did not rely upon a confession alone, and there was no reversible error. Approving Kugadt v. State, 38 Texas Crim. Rep., G81. Qualifying Attaway v. State, 35 Texas Crim. Rep., 403.</p> <p>3. —Same—Evidence—Declarations of Defendant.</p> <p>Where upon trial for theft the State was permitted to show a part of defendant’s declaration when accused of the alleged theft, it was error to exclude the testimony of defendant’s witnesses showing a part and parcel of the same transaction and declaration by defendant brought out by the State.</p>

Tried below before the Hon. Sam R. Scott. Appeal from a conviction of burglary; penalty, three years imprisonment in the penitentiary. The opinion states the case. Ho brief on file for appellant.

<p>1.—Assault to Murder—Substitution of Indictment—Two Days Notice—Statutes Construed.</p> <p>The latter, clause of article 470, Code Criminal Procedure, with reference to the commencement of the prosecution, relates only to a condition where another indictment is found and not where there is simply a substitution of the indictment, and there was no error in forcing defendant to go to trial without the two days’ notice to file pleadings; besides the bill of exceptions did not show that defendant had not been served with a certified copy of the original indictment.</p> <p>2.—Same—Indictment—Name of Foreman of Grand Jury.</p> <p>It is not necessary for an indictment to have the name of the foreman at the bottom; and there was no reversible error in adding such name after the trial had commenced.</p>

Tried below before the Hon. C. D. Mims. Appeal from a conviction of unlawfully carrying knuckles made of metal; penalty, a fine of $100. The opinion states the case.

<p>The opinion states the case.</p>

<p>1. —Murder in First Degree—Principals—Charge of Court—Constructive Presence.</p> <p>Where upon trial for murder the evidence tended to show that the defendant at the time of the homicide was within a few feet of the house in. which the homicide occurred, and was acting with the actual participants of the crime, this brought him in legal, contemplation as a principal to the homicide, and made it a question of fact for the jury.</p> <p>2. —Same—Charge of Court—Criminal Intent—Independant Impulse.</p> <p>Where upon trial for murder the evidence showed that defendant’s codefendant did the actual killing, the court should have charged the jury that if the jury believed or had a reasonable doubt whether such killing was upon an independent impulse of said codefendant, and not in pursuance of an agreement with the defendant, to acquit the defendant. Defendant could only be bound by his own intent and criminal purposes, and where the evidence suggested such an .issue the court should have charged properly under this phase of the case' upon the different degrees of murder as well as manslaughter.</p> <p>3. —Same—Charge of Court—Writ of Possession—Re-entry of Premises.</p> <p>Where upon trial for murder the evidence showed that the defendant had been dispossessed of the property where the homicide occurred, under a legal writ, and that he had returned immediately that night and attempted by force to retain possession of the property in the face of such writ, and that one of the officers in attempting to again dispossess defendant was killed by one of said codefendants, the court properly charged that defendant’s re-entry after having been dispossessed by virtue of said writ was illegal and would give him no property rights by virtue thereof; especially when considered together in the light on the main charge.</p> <p>4. —Same—Evidence—Motive—Eviction—Advice of Counsel—Third Parties—Rebuttal.</p> <p>Upon trial for murder where the evidence showed that defendant and others had been legally evicted from the premises where the homicide occurred by a writ of possession, testimony with reference to the .advice of his counsel as to a re-entry of such premises; and the acts of third parties who were not parties to said writ, could not be used in rebuttal to testimony by the State as to the bitter expressions used by defendant concerning the transaction.</p> <p>5. —Same—Evidence—Stenographic Report of Testimony of Codefendant—Contradiction of Witness.</p> <p>Where upon trial for murder the court improperly permitted the defendant to introduce the testimony of a codefendant taken during the latter’s trial in chief, it not having been shown thaj, said codefendant had been used as a witness for the defendant and was dead or beyond the jurisdiction of the court; it was nevertheless reversible error thereupon to permit the State in rebuttal to introduce a stenographic report of the testimony which said codefendant had given at a habeas corpus trial some time previous to his trial in chief, and which testimony was highly prejudicial to the rights of defendant.</p> <p>6. —Same—Evidence—Communications of Third Parties.</p> <p>Upon trial* for murder where the State introduced testimony that on the evening before the killing the witness informed the attorney of defendant that the officers were going'’the next day to execute the writ of possession the second time, and there was also some testimony that the defendant had notice thereof, (lie court should have charged the jury that they should not consider such testimony unless they believed beyond a reasonable doubt that the witness’ statement (o defendant’s attorney was communicated to defendant.</p> <p>7. —Same—Evidence—Contradicting Defendant.</p> <p>Upon trial for murder there was no error in permitting counsel for the State to examine defendant on cross-examination touching the defense which had been interposed for him in the case theretofore.</p>

<p>Aggravated Assault—Habeas Corpus—Constitutional law—Resisting Officer.</p> <p>A defendant who was charged with an aggravated assault for resisting an officer in making a search and seizure' for intoxicating liquors in local option territory, could not test the constitutionality of the seizure act, under the facts presented in the record, by writ of habeas corpus, but should interpose such defense in the trial for the alleged assault, in the trial court.</p>

<p>1. —Assault With Intent to Murder—Specific Intent to Kill—Charge of Court.</p> <p>Upon trial for assault with intent to murder, a charge of the court which fails to instruct the jury that there must be a specific intent to kill on the part of the defendant to warrant conviction, and which also places an intent to commit serious bodily injury as a basis of guilt, was reversible error.</p> <p>2. —Same—lower Grade of Offense.</p> <p>Where the proof is inconclusive of the specific intent to murder, the charge should give the jury discretion to convict of a lower grade than of assault with intent to murder.</p> <p>3. —Same—Bill of Exceptions by State.</p> <p>The State has no right of appeal, and a bill of exceptions by the district attorney to the ruling of the court excluding testimony cannot be considered on appeal.</p>

Tried below before the Hon. N. E. Lindsey. Appeal from a conviction of burglary, framed so as to secure accumulated punishment; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>Appeal from the County Court of Earns. Tried below before the .Hon. W. H. Clendenin.</p> <p>Appeal from a conviction of aggravated assault; penalty, a fine of $100.</p> <p>The opinion states the case.</p>

Tried.below before the Hon. Albert Maberry. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.

<p>1. —Murder in Second Degree—Manslaughter—Singling out Evidence—Charge Befused. .</p> <p>It is never proper for a court to single out any portion of the evidence and predicate thereon a charge on manslaughter; and where the court properly charged that the jury could consider all the antecedent causes, enumerating them, in passing upon the question as to whether the defendant’s mind was capable of cool reflection, there was no error in refusing a requested charge with reference to insulting language.</p> <p>2. —Same—Insulting Language to Wife—Charge Befused.</p> <p>Where upon trial for murder, the court had properly charged as to insulting conduct and language of deceased towards defendant’s wife as adequate cause, there was no error in refusing the requested charge on the same subject.</p> <p>3. —S.ame—Charge Must be Considered as a Whole—Self-Defense.</p> <p>Where upon, trial for murder, the court’s charge presents every possible phase of self-defense suggested by the evidence, and read as a whole presents no error, criticisms of isolated portions thereof will not be considered on appeal.</p> <p>4. —Same—Charge of Court—Reasonable Doubt—Degrees of Culpable Homicide.</p> <p>The failure of the court to apply reasonable doubt between the degrees of culpable homicide is not error. However, where the court does so charge defendant cannot complain.</p> <p>5. —Same—Charge of Court—Omission of Word.</p> <p>Where upon trial for murder, the jury could not possibly have been misled by an omission in the court’s charge of the word “mind,” preceding the sentence, “incapable of cool reflection,” there was no error, especially when read in the light of the whole charge.</p>

Tried below before the Hon. H. R. Lindsey. Appeal from a conviction of assault with intent to commit murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1.—Theft From Person—Sudden Taking—Fraudulent Intent.</p> <p>Upon trial for theft from the person by sudden taking, the evidence must show that the taking was so sudden as to constitute theft from the person, otherwise the accused is not guilty even if he had a fraudulent intent.</p> <p>Z.—Same—Possession Must be Complete—Charge of Court.</p> <p>Where upon trial for theft from the person the evidence showed that the defendant, who was charged with stealing a watch, had not severed the chain of the watch from the vest of the prosecutor, and it was still attached to the latter’s person, it was not reduced to such possession as constituted theft; and it was error not to have submitted a charge on this phase of the law.</p>

<p>The opinion states the case.</p>

<p>Local Option—Charge of Court—Malt Liquor License—Intoxicants.</p> <p>Where upon trial for a violation of the local option law the defendant’s evidence showed that the liquor sold was a non-intoxicant, the mere fact that defendant had a United States malt license, would not be evidence of the fact that he was selling intoxicating liquor, and a special charge presenting this issue should have been given.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. B. W. Simpson. Appeal from a conviction of murder in the second degree; penalty, forty-eight years imprisonment in the penitentiary. The following statement of the case by the Assistant Attorney-General is substantially correct': .The record discloses that the appellant and the deceased were husband and wife. They had been married some two years; did not 'live happily together and that there were frequent separations.

<p>The opinion states the case.</p>

<p>1. —Arson—Extraneous Offenses—Evidence.</p> <p>Extraneous crimes are not admissible, even under the exception to the rule, unless the testimony comes within one of the exceptions and this to connect the defendant with the crime for which he is being tried. The fact that other houses may have been burned, and defendant may have participated in them does not of itself connect him with the arson charged in the indictment.</p> <p>2. —Same—Witness Under Rule—Discretion of Court—Officer of the Court— City Marshal.</p> <p>The discretion of the court to excuse a witness from the rule is a judicial and not a personal discretion, and while it has been held that officers of the trial court may be exempted from the rule, this does not include a city marshal who is not an officer of the trial court, and to excuse him from the rule there must be some good reason shown.</p>

<p>The opinion states the ease.</p>

John M. Eurman. Tried below before the Hon. Appeal from a conviction of burglary; ment in the penitentiary. penalty, two years imprison- The opinion states the case.

<p>1. —Murder—Manslaughter—Evidence—Weapon of Deceased.</p> <p>The fact that deceased may have had some other weapon at the time of the homicide would not preclude the State from introducing testimony that a little pocket-knife was found in the pocket of the deceased immediately after the shooting by defendant, which was the only knife found about his person.</p> <p>2. —Same—Evidence—Mental Status of Parties.</p> <p>Upon trial for murder there was no error to permit a witness to testify that the conversation of deceased with the defendant, and his conduct towards the defendant a few minutes prior to the homicide seemed to him and was apparently friendly; and this, although the witness may never have known the party before.</p> <p>3. —Same—Contradicting Witness—Remark of Judge.</p> <p>Upon trial for murder there was no error in permitting State’s counsel to ask defendant’s witness if defendant had attempted to bribe him to leave the country; and the language of the court in overruling defendant’s objection to the effect that defendant’s counsel could not put that kind of bridle on the State’s attorney, although a forceable figure, was not reversible error.</p> <p>4. —Same—Opinion of Witness—Immaterial Testimony.</p> <p>Upon trial for murder where a State’s witness had denied on cross-examination that he had made a certain statement to defendant’s witness a few days after the homicide that defendant knew when he and deceased got together that the defendant would have to do quickly what he was going to do, there was no error in not permitting the defendant’s witness to contradict State’s witness with reference to this statement.</p> <p>5. —Same—Ill-will—Temperament of Parties.</p> <p>Upon trial for murder there was no error to permit the State to show friendly relations between deceased and defendant about two years prior to the killing, in rebuttal of defendant’s evidence of threats and ill-will of deceased towards defendant prior to that time.</p> <p>6. —Same—Misconduct of Jury—Viewing Scene of Homicide.</p> <p>Upon trial for murder there was no error in the fact that the officer in charge allowed the jury to go over the ground where the difficulty bad occurred, where there was no question as to the relative position of the parties, and it was not shown that the jury received evidence from an inspection of the ground that could militate against the rights of the defendant.</p> <p>7. —Same—qualifications of Special Instructions.</p> <p>Where upon trial for murder the court submitted defendant’s special instruction with qualification, with notice to defendant’s counsel and acquiescence therein by him, there was no error; besides the qualifications presented the law of the case.</p> <p>8. —Same—Charge of Court—Real and Apparent Danger.</p> <p>Where upon trial for murder the court charged upon every possible phase of real and apparent danger, in accordance with the directions by this court upon former appeal, there was no error; besides the record suggested very little real or apparent danger to defendant at the time he shot deceased.</p> <p>9. —Same—Limiting Testimony—Impeachment of Witness.</p> <p>Upon trial for murder where the impeaching testimony could not have been appropriated by the jury for any other purpose than impeachment, there was no error in not limiting said testimony to that issue.</p>

<p>1. —Murder in First Degree—Jury and Jury law—Waiver—Special Venire.</p> <p>Where upon trial for murder, defendant had waived a special venire and failed to indicate any objections to the manner of drawing, choosing or empaneling the jury during the trial; and he was present during the empanelment of the jury, there was no error in overruling the objection that the jurors were not drawn from the box, etc., and that talesmen were summoned to complete the panel.</p> <p>2. —Same—Evidence—Harmless Error.</p> <p>Where upon trial for murder, a State’s witness swore that he found a cartridge 400 or 500 yards from the scene of the shooting, and there was no testimony connecting this incident with anything pertaining to the homicide, or to identify said cartridge with any cartridge defendant had, or that it was of the same size of the bullet in the body of the deceased, or that there were tracks near the place where said cartridge was found, the same was inadmissible; but nevertheless harmless error; as the same did not in any sense tend to strengthen the State’s case, or prejudice the rights of defendant.</p> <p>3. —Same—Evidence—Clothing of Deceased—Harmless Error.</p> <p>Where upon trial for murder, the clothes of the deceased, which had been washed, were introduced in evidence, and the State’s attorney merely showed the jury where the ball entered the clothes and then laid them aside, and made no further comment on this matter; and there was nothing to show that what occurred inflamed the minds of the jury, there was no reversible error, although such testimony was not pertinent on any controverted issue in the case. However, such practice is deprecated and discouraged by the court.</p> <p>4. —Same—Evidence—Criminative Circumstances.</p> <p>Upon trial for murder, there was no error to admit testimony that a short time before the homicide, defendant was seen carrying a pistol, where the circumstances of the case show with reasonable certainty that the shot that killed deceased was from a pistol.</p> <p>5. —Evidence—Bes Gestae—Deceased’s Declaration.</p> <p>Where upon trial for murder, the State introduced a witness who testified that some ten minutes after the shooting, the deceased stated repeatedly in witness’ presence that “ Duke Tinsley ” had shot him, and defendant went by that name, such testimony was admissible as res gestas.</p> <p>6. —Same—Charge of Court—Alibi—Technical Terms.</p> <p>Where upon trial for murder, the court gave a charge on alibi but did not attempt to define the technical terms of the term alibi, the same was sufficient; although the special charge submitted by the defendant has been approved by this court. It is the better practice not to attempt to define technical terms.</p> <p>7. —Same—Charge of Court—Circumstantial Evidence.</p> <p>Where upon trial for murder, the res gestee declaration of the deceased took the case out of the rule of circumstantial ex-idence, there was no error in failing to charge on this subject.</p> <p>8. —Same—Charge of Court—Degree of Murder.</p> <p>Upon a trial for murder it was proper for the court to charge the jury that if they had a reasonable doubt as to the degree, to find the defendant guilty of murder in the second degree, in the event they found him guilty.</p> <p>9. —Same—Verdict—Amendment by Court.</p> <p>Where upon trial for murder, the court did not charge on manslaughter but only charged upon murder in the first and second degree, and the jury returned a verdict for five years, without stating the offense of which they found defendant guilty, the action of the court in amending the verdict to conform to the charge, and inserting the words “ murder in the second degree,” the jury acquiescing therein, was proper; although the foreman, in answer to the remark by the court: “ You have not said what you find him guilty of,” replied: “ Manslaughter or murder in the second degree.”</p> <p>10. —Same—Conviction Upon Res Gestae Declaration of Deceased.</p> <p>Where upon trial for murder, the State’s testimony not only showed ill-feeling between the defendant and deceased, but the res gestae statement by deceased to three or four witnesses, within ten minutes after the shooting, showed that deceased was approaching his home at night, when defendant stepped from behind the house and shot him, a conviction of murder in the second degree with the minimum punishment is sustained.</p>

<p>Burglary—Motion for New Trial—Newly Discovered Evidence.</p> <p>Where upon motion for new trial, in a case of burglary where it was extremely doubtful that the evidence was sufficient to sustain a conviction; and the affidavits of witnesses attached to the motion with reference to newly discovered evidence showed that the proposed testimony was close enough to the main fact, coming from the injured party, that it would come within the rule laid down by this court in regard to admitting res gestee statements, a new trial should have been granted.</p>

Tried below before the Hon. P. A. Turner. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>1. —Murder—Preliminary Statement to Jury.</p> <p>Where upon trial for murder defendant’s attorney, who was permitted to make a preliminary statement to the jury before introducing his testimony, proceeded in an argumentative manner, there was no errorr in sustaining the State’s objection thereto.</p> <p>2. —Same—Evidence—Motive of'Witness.</p> <p>Upon trial for murder, there was no error in sustaining the State’s _ objection to a question by defendant to a State’s witness whether some persons interested in the prosecution had tried to influence the State’s witness to swear falsely, as this question was not in proper form, and too general.</p> <p>3. —Same—Uncommunicated Threats.</p> <p>Upon trial for murder there was no error in rejecting uncommunicaed threats of deceased and others, as at that time the defendant had not set up self-defense.</p> <p>4. —Same—Evidence—Clothing of Deceased.</p> <p>Where upon trial for murder, the State’s theory, was that deceased was shot in the back and his clothing set on fire, there was no error in introducing in evidence the clothing of deceased which tended to show that fact.</p> <p>5. —Same—Bill of Exceptions—Immaterial Testimony.</p> <p>Upon trial for murder there was no error in sustaining the State’s objection to testimony offered by the defense which was not shown to be pertinent in the trial of the case.</p> <p>6. —Same—Evidence—Moral Turpitude—Witness.</p> <p>On trial for murder there was no error in permitting the State on cross-examination to show that the witness had been indicted some twenty years ago for criminal assault upon a female, on the ground that such assault as contended by the defense did not show moral turpitude. Defendant did not make the objection on the ground that the testimony was too remote, which would have been good.</p> <p>7. —Same—Evidence—Animus—Declaration of Defendant.</p> <p>On trial for murder there was no error to admit the declaration of defendant in evidence to the effect that deceased- had beat him out of a girl, which remark was made shortly before the homicide.</p> <p>8. —Same—Bill of Exceptions—Evidence.</p> <p>On trial for murder there was no error in ruling out the testimony of dedefendant’s witness as to certain parties who were seen near the scene of the homicide the evening before, and the movements of said parties, inasmuch as the bill of exceptions' did not show in what way said testimony could be material, or how it was connected with the homicide.</p> <p>9. —Same—Evidence—Conclusion of Witness.</p> <p>Upon trial for murder there was no error in rejecting certain testimony which .called for a conclusion of the witness.</p> <p>10. —Same—Evidence.</p> <p>There was no error in admitting testimony, which though weak in its relevancy, could not have injured defendant in the trial of the case.</p> <p>11. —Moral Turpitude of Witness—Evidence.</p> <p>Upon trial for murder there was no error in permitting the State to show that defendant’s witness had been indicted for murder twenty-five years ago, and also for criminal assault upon a female, to show moral turpitude, defendant’s counsel not objecting to the testimony on the ground that it was too remote.</p> <p>12. —Same—Argument of Counsel.</p> <p>Where upon trial for murder the argument of State’s counsel was a legitimate deduction from the evidence, there was no error.</p> <p>13. —Same—Animus of Witness—Evidence.</p> <p>On trial for murder there was no error in showing the. animus of one of the defendant’s witnesses against the prosecution by his declaration to another State’s witness to help him, defendant’s witness, to send one of the State’s witnesses to the penitentiary.</p> <p>14. —Same—Charge of Court—Limiting Testimony.</p> <p>When testimony, in a trial for murder, could not have been legitimately or rationally used for any other purpose than that for which it was used, there was no error in failing to limit the same to that purpose.</p> <p>15. —Same—Charge of Court—Exceptions too General.</p> <p>Where upon appeal from a conviction of murder in the second degree the exceptions to different charges on murder and manslaughter did not point out any error in such charge, but such exceptions were general, they could not be considered on appeal; besides there were no errors in said charges.</p> <p>16. —Continuance—Bill of Exceptions.</p> <p>In the absence of a bill of exceptions to the overruling of a motion for continuance, the matter cannot be considered on appeal.</p> <p>17. —Same—Practice on Appeal—Assignments of Error—Motion for New Trial</p> <p>—Bill of Exceptions.</p> <p>No complaint of the charge of the court, or ruling of the court can be considered on appeal under article 723, Code Criminal Procedurre, unless the same is embodied either in a motion for a new trial or in a bill of exceptions; and assignments of error that are not thus placed in the record cannot be considered on appeal.</p> <p>18. —Same—Murder in Second Degree.</p> <p>Where the evidence, in an appeal from a conviction of murder in the second degree, showed a very cruel and wanton murder, the verdict will not be disturbed.</p>

Tried below before the Hon. J. D. Harvey. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.

<p>The opinion states the case.</p>

<p>1. —Assault With Intent to Rape—Continuance.</p> <p>Where upon trial for assault with intent to rape, the testimony of the absent witnesses, as set out in defendant’s first application for continuance, would directly contradict the testimony of the prosecutrix in regard to the condition of things when the witnesses arrived upon the scene, the continuance should have been granted.</p> <p>2. —Same—Motion for New Trial—Contest.</p> <p>Upon contest as to diligence, filed by the State, in connection with appellant’s motion for new trial, claiming that the absent witness was kept away by the procurement of appellant, no testimony being offered in support of this contention, and the testimony of the absent witness being material, a new trial should have been granted.</p>

<p>A-ppeal from the County Court of Brazos. Tried below before the lion. A. G. Board.</p> <p>Appeal from a conviction of unlawfully carying a pistol; penalty a fine of $100.</p> <p>The opinion states the case.</p>

<p>1. —Manslaughter—Evidence—External Appearance of Defendant—Opinion of Witness.</p> <p>Upon trial for murder there was no error in permitting the State to show on cross-examination of defendant’s witness, that after deceased arrested defendant they went off peacefully without any trouble. The- appearance of defendant as to whether he was angry was a legitimate matter for inquiry, and it was not an opinion of the witness to testify to same.</p> <p>2. —Same—Evidence.</p> <p>On trial for murder, there was no error in permitting the State on cross-examination of defendant to ask him why he stopped off on his journey in the town where the homicide occurred.</p> <p>3. —Same—Bill of Exceptions.</p> <p>Where upon appeal from a conviction of manslaughter, the bill of exceptions was wholly defective in that no answer of the witness was shown thereby, the question by the State on cross-examination of defendant as to whether he had a pistol at a certain time and place could not be considered.</p> <p>4. —Same—Evidence—Immateriality of Testimony.</p> <p>Where upon trial for murder the court sustained an objection made by the State as to whether defendant’s witness had a conversation with a certain party at a certain time, the defense claiming that this matter had been drawn out by the State, and the court certified that there had been no attempt by the State to show that such conversation did not occur, there was no error in sustaining the State’s objection.</p> <p>5. —Same—Evidence—Deadly Weapon.</p> <p>On trial for murder there was no error to permit a deputy sheriff, who held such office for a number of years to testify that the pistol used in the homicide was a thirty-eight-caliber and a deadly weapon.</p> <p>6. —Same—Evidence—Arrest—Declaration of Third Parties.</p> <p>Upon trial for murder where the evidence showed that deceased was an officer and according to the State’s theory had arrested the defendant either for disturbing the peace or carrying a pistol, without warrant, on information received from other officers of the law, there was no error in permitting such other officers to testify to these facts, and that they had so informed the deceased, and that the latter was to make the arrest upon such information; such conversation among the officers out of the presence of defendant does not come within the rule of excluding declarations of third parties in the absence of the accused, and was admissible.</p> <p>7. —Same—Evidence—Rebuttal—Bill of Exceptions.</p> <p>A bill of exceptions which did not state the testimony objected to, was defective ; besides, the sheer fact that such testimony was not in rebuttal would not, make it inadmissible. The court certifies that the testimony was in rebuttal, and there was no error.</p> <p>8. —Evidence—Harmless Error.</p> <p>On a trial for murder there was no error in permitting a State’s witness to testify that he met deceased at a certain place on the day of the homicide and had a conversation with him about arresting defendant, and that witness did not tell deceased what he wanted to arrest defendant for, as such testimony was admissible, and if not was harmless.</p> <p>9. —Same—Evidence—Probing Wound.</p> <p>On a trial for murder where the State introduced testimony with reference to the probing of the wound in deceased’s body by the undertaker, and the witness who gave his testimony stated that he knew nothing about the nature of the probing of this wound, there was no error in sustaining the State’s objection to the cross-examination by defense to having the witness state at what angle the probe was working; unless the witness could state that it was following the wound.</p> <p>10. —Evidence—Character of Deceased.</p> <p>Where upon trial for murder the evidence showed that defendant and deceased were strangers; that deceased had made no threats against defendant, there was no error in excluding testimony of the general reputation of deceased as a violent and dangerous character; the defendant not having any knowledge of such character.</p> <p>11. —Same—Evidence—Arrest Without Warrant.</p> <p>Where upon trial for murder the evidence showed that defendant killed deceased after being arrested by him for unlawfully carrying a pistol, there was no error in the refusal of the court to strike out and exclude all the testimony in support of the State’s theory that the deceased arrested defendant for unlawfully carrying a pistol, because the testimony did not show that deceased so informed the defendant at the time of his arrest; besides the verdict being for manslaughter shows in itself that the jury did not believe that the arrest was legal, and there was no error.</p> <p>12. —Same—Evidence—City Ordinance—Special Charter.</p> <p>On trial for murder where the evidence showed upon the State’s theory that defendant killed deceased, a policeman, after being arrested by him for disturbing the peace or unlawfully carying a pistol, there was no error in permitting the State to introduce in evidence the special charter of the city and the ordinances thereunder authorizing a policeman of said city to make an arrest for such offenses without warrant; besides such testimony could not have injured defendant’s rights, as the verdict was for manslaughter and thus supported appellant’s theory of illegal arrest.</p> <p>13. —Same—Continuance—Bill of Exceptions.</p> <p>Where upon appeal the record showed that appellant failed to reserve a bill of exceptions to the overruling of his motion for continuance, the matter could not be considered on appeal.</p> <p>14. —Same—Charge of Court—Illegal Arrest—Question of Eact.</p> <p>Where upon trial for murder the evidence showed upon the State’s theory that defendant killed deceased after the latter had arrested him for a violation of the city ordinance, and the defendant claimed that said arrest was illegal for various reasons, and the theory of the State was that deceased as policeman had the right to make the arrest without warrant, and the evidence was conflicting upon this issue, it was the duty of the court to define illegal arrest and submit the evidence upon this issue to the jury. The court did this and there was no error.</p> <p>15. —Same—Illegal Arrest.</p> <p>On trial for murder where the evidence showed that defendant killed deceased while the latter had him under arrest, and the evidence was conflicting as to whether said arrest was legal or illegal, the defendant had a right to resist an illegal arrest, even when the facts showed that he did not know whether the arrest was illegal, and where the court submitted a charge in accordance with this rule there was no error. Brooks, Judge, dissenting as to this rule.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. P. A. Turner. Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. J. A. Bulloch. Appeal from a conviction of unlawfully carrying a pistol; penalty, thirty days confinement in the county jail. The opinion states the case.

<p>The opinion states the case.</p>

Tried below before the Hon. J. A. Bulloch. Appeal from a conviction of a violation of the local option law; penalty, a fine of $40 and twenty-five days confinement in the county jail. The opinion states the case.

Tried below before the Hon. Seb. F. Caldwell. Appeal from a conviction of disturbing religious worship; penalty, a fine of $25. The opinion states the case.

• Appeal from the District Court of Bell. Tried below before the Hon. John M. Furman. Appeal from a conviction of swindling; penalty, two years imprisonment in the penitentiary.

<p>The opinion states the case.</p>

<p>1. —Local Option—Sale—Insufficiency of Evidence.</p> <p>Where upon trial for a violation of local option law, the State’s witness swore that he bought no whisky from the defendant, and the only evidence which would indicate a sale was the subsequent borrowing by appellant from State’s witness of $5; that the witness accepted invitation from appellant and went to his house, and they had a social drink together, they being old friends. Held, there was no sale.</p> <p>2. —Same—Impeachment of Own Witness—Hearsay.</p> <p>On trial for a violation of the local option law, it was error to .permit State’s counsel to attempt to show by his own witness that he had made different statements with reference to getting the whisky from defendant, as this was an indirect effort to supply a failure of testimony.</p>

Tried below before the Hon. J. A. Bulloch. Appeal from a conviction of a violation of the local option law; penalty; a fine of $100 and twenty days confinement in the county jail. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Forgery—Motion in Arrest of Judgment—Indictment—Endorsement.</p> <p>In a prosecution for forgery it is not necessary to constitute this offense that the alleged forged instrument must be a full and complete one; if it be complete so far as the maker is concerned it is a sufficient basis for a charge on forgery, and the objection that the same bore no endorsement was untenable in a motion in arrest of judgment.</p> <p>2. —Same—Variance—Name of Party Injured. 0</p> <p>Where upon trial for forgery the issue of variance in the name of the party injured was properly submitted to the jury, who found against defendant on the evidence submitted, there was no error. Following Nichols v. State, 39. Texas Grim. Rep., 80; 44 S. W. Rep., 1091; Davis v. State, 34 Texas Grim. Rep., 117; 29 S. W. Rep., 478.</p> <p>3. —Same—Charge of Court—Right to he Heard hy Counsel</p> <p>Where upon trial for forgery, the court charged the jury that the remarks of counsel should not be considered by them as evidence of any fact in the case, nor for any purpose unless such arguments or remarks were justified by the evidence or a reasonable deduction therefrom, the same was not calculated to impress the jury with the fact that the legitimate argument of defendant’s attorney could not be considered by them.</p> <p>4. —Same—Comparison of Handwriting—Signature of Instrument.—Experts. Where upon trial for forgery the defendant positively denied under oath, that the</p> <p>signature to the alleged forged instrument was made by him, and in his handwriting, and it was not shown that either he himself wrote the instrument or was the principal in some way connected with its execution, he could not be convicted under the statutes, article 749, Code Criminal Procedure, of forgery by evidence resting alone upon a comparison of the handwriting by testimony of experts; but other evidence was required to show that defendant wrote the instrument, and the passing of the same is not sufficient to sustain a conviction of forgery.</p> <p>5. —Same—Examination of Witnesses hy Court.</p> <p>See opinion with reference to the practice of the court examining witnesses in the trial of criminal cases.</p> <p>6. —Same—Practice—Examination of Witnesses hy State’s Counsel.</p> <p>Where upon trial for forgery the question of defendant’s confession was presented to the court by counsel, while the jury was retired, and the court ruled that there was not a sufficient predicate for the introduction of such testimony, it was improper, after the jury was returned, for State’s counsel to propound questions to the witnesses with reference to said confession, and causing defendant’s counsel to object in the presence of the jury. Following Alexander v. State, 21 Texas Grim. App., 406.</p> <p>7. —Same—Confessions Must he in Writing.</p> <p>Under the late statutes, confessions cannot be introduced unless reduced to writing, even if warning has been given.</p>

<p>The opinion states the case.</p>

<p>1. —Murder—Alibi—Charge of Court.</p> <p>Where upon trial for murder the defense was an alibi, and the court gave a sufficient charge upon this subject, there was no error in refusing a special charge on the same subject.</p> <p>2. —Same—Evidence—Expert Opinion.</p> <p>Where upon trial for murder the evidence showed that a physician was called upon to visit the body of deceased, who made a post-mortem examination, and thereupon testified that according to his opinion, after examining the wounds on the body of deceased that they were the cause of the death of the deceased; and besides there was other evidence independent of this testimony as to the cause of the death of the deceased, there was no error.</p> <p>3. —Same—Evidence—Res Gestae.</p> <p>Where upon trial for murder the evidence showed that deceased’s husband succeeded in getting away from defendant after being assaulted by him, and after defendant killed deceased, there was no error to permit testimony to show the condition and appearance of said husband a few minutes after the homicide and within three or four hundred yards of the scene thereof; the assault upon such husband by defendant with a pistol and bludgeon being a part and parcel of the same transaction that brought about the homicide.</p> <p>4. —Same—Evidence—Opinion of Witness.</p> <p>Where upon trial for murder, the court permitted the chief of police to state that the pistol traced to defendant’s possession appeared to have been freshly discharged; that he was not an expert in these matters but had been accustomed for years to the use of firearms, there was no error.</p> <p>5. —Same—Evidence—Motive.</p> <p>Where upon trial for murder the evidence showed that defendant and the husband of deceased were partners in the hog business, and that a third party was threatening to take the hogs away under a mortgage or lien given by defendant, and that this caused some friction between defendant and said husband of deceased, and that defendant said he would come to see said husband, which was the night of the homicide, there was no error in the cross-examination of defendant to interrogate him and force him to testify on this matter.</p> <p>6. —Same—Evidence—Res Gestae—Motive—Malice.</p> <p>Where upon trial for murder the evidence showed that defendant had killed the wife of the witness who came to his rescue in a night attack of defendant upon witness, there was no error in permitting said witness to testify to the details of said assault by the defendant upon witness and his wife, as well as the pursuit of witness by the defendant after the witness escaped.</p>

<p>1. —Burglary—Declaration by Defendant—Evidence—Impeaching Testimony.</p> <p>Upon trial for burglary there was no error in admitting defendant’s declaration that he owned a certain hammer and file about which the State’s witness made inquiry of defendant, and his further statement that defendant threw said hammer and file under the house where witness picked them up, and that defendant had been using these tools in working for the prosecutor in knocking off wire; and then permitting the State to show by prosecutor that defendant 'had not been working on any wire fence, etc., but had been ploughing. This was original testimony; but even if impeaching testimony was admissible.</p> <p>2. —Same—Charge of Court—Weight of Testimony.</p> <p>Upon trial for burglary where the court submitted in his charge the law applicable to the facts which constitutes burglary, and then concluded his charge with the words, “If defendant did not enter the house in question you will find him not guilty,” the same was not on the weight of testimony.</p> <p>3. —Same—Breaking—Sufficiency of Evidence.</p> <p>Where upon trial for burglary, the evidence showed that the door broken open was fastened by a padlock, which was pried apart and the entrance to the house in this manner obtained, and defendant admitted the fact that he broke the lock, but denied entering the house, the breaking was proved, and there was no error.</p> <p>4. —Same—Evidence of Entry.</p> <p>Where upon trial for burglary, the State’s evidence showed that certain articles had been taken from a cash drawer which had been fastened, and that these articles could not have been taken except by an entry of the house, the entry was proven.</p> <p>5. —Same—Night-Time Burglary.</p> <p>Where upon trial for burglary the evidence showed that the burglarized house was entered some time after 8:30 o’clock at night and before daylight the next morning, the same showed beyond a reasonable doubt that the house was entered in the night-time.</p>

Tried below before the Hon. Jas. A. Harrison. Appeal from a conviction of swindling, a misdemeanor; penalty, ninety days confinement in the county jail. The opinion states the case.

<p>The opinion states the ease.</p>

<p>1. —Assault With Intent to Murder—Charge of Court.</p> <p>Where upon trial for assault with intent to murder, the court charged on the issue of self-defense that defendant was justified in using all the necessary and reasonable force to protect himself but no more than the circumstances reasonably indicated to him at the time to be then necessary, and in a subsequent portion of the charge gave a full and complete presentation of every reasonable phase of self-defense presented by the evidence, there was no error.</p> <p>2. —Same—Charge of Court—Apparent Danger.</p> <p>Where upon trial for assault with intent to murder, the court in his charge instructed the jury that a reasonable apprehension - of death or serious bodily injury would excuse defendant in using all the necessary force to protect his life and person, and also charged on real and apparent danger, there was no error, although the evidence merely suggested real danger from defendant’s standpoint.</p> <p>3.—Same—Charge of Court—Abandonment of Difficulty.</p> <p>Where upon trial for assault with intent to murder the evidence showed an altercation between defendant and prosecutor, in which each claimed that the other was the aggressor; that thereafter defendant went to his house, after the first difficulty was settled, and then the prosecutor went towards the defendant’s house and when within fifteen or twenty feet thereof was fired upon by the defendant, whereupon prosecutor dropped his gun and ran, a charge of the court that if prosecutor renewed the difficulty, defendant’s right of self-defense would revive, although he was the aggressor in the first instance, was favorable to defendant and not on the weight of the evidence.</p>

Tried below before the Hon. E. A. McDowell, Special Judge. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. Jas. A. Harrison. Appeal from a conviction of theft under the value of $50; penalty, a fine of $50 and three months confinement in the county jail. The opinion states the case.

<p>Swindling—Insufficiency of tlie Evidence.</p> <p>Where upon trial for swindling, the State’s evidence was that the party injured sold the mule to the defendant, for which he was to be paid later in the day, and that the defendant did not pay him; and defendant’s defense was that he traded the injured party a horse for his mule, the transaction did not constitute swindling under either theory.</p>

<p>1. —Seduction—Evidence—Reputation of Prosecutrix.</p> <p>Upon trial for seduction where a State’s witness testified to the good reputation for chastity of the prosecutrix, the defense should have been permitted on cross-examination to show the general reputation of other women for chastity, with whom prosecutrix lived and associated. See opinion for testimony on this line which should have been admitted.</p> <p>2. —Same—Evidence—Impeachment—Surprise.</p> <p>Upon trial for seduction where the defense was surprised by the answer of its witness, and which was hurtful to defendant,- and he had been led to believe by the witness that her testimony would be favorable, he had a right to contradict Ms own witness, and it was error of the court not to permit him to do so.</p> <p>3. Same—Charge of Court—Law Must be Applicable to Pacts.</p> <p>Where upon trial for seduction the evidence raised the issue as to whether defendant was the father of the illegitimate child of the prosecutrix, a general charge of the court that the act of intercourse _ between defendant and prosecutrix must have occurred by means of a promise to marry, and the court in applying the law to the facts confined the charge to this promise, the same was hardly sufficient and should have been made directly applicable to the facts.</p>

<p>Burglary—Circumstantial Evidence.</p> <p>The law of circumstantial evidence requires that the evidence should be of that degree of cogency and probative force that would justify a jury and this court in believing that the evidence excludes every other reasonable hypothesis than that of the guilt of the defendant. See opinion for facts held to be insufficient to sustain a conviction for burglary.</p>

<p>1. —Murder—Charge of Court—Principal—Accomplice.</p> <p>Where upon trial for murder defendant claimed in his confession that another killed the deceased and gave the defendant a part of the money taken from deceased and threatened to kill defendant if he divulged; and the court charged that if deceased was killed by another than defendant to acquit him, there was no error that the court failed to charge the law of accomplices and principals; the court’s charge being more favorable to the defendant than the evidence warranted.</p> <p>2. —Same—Continuance—Bill of Exceptions.</p> <p>Where no bill of exceptions was reserved to the overruling of the application for continuance, the matter cannot be considered on appeal.</p> <p>3. —Same—Change of Venue.</p> <p>Where upon trial for murder the testimony under the defendant’s motion for change of venue did not show some prejudice against the defendant, but that the jurors simply stated that they believed whoever committed the alleged murder ought to be hanged; that defendant and deceased were strangers in the county, and that the jurors all swore that they could give defendant a fair and impartial trial, there was no error in refusing a change of venue.,</p> <p>4. —Same—Jury and Jury law—Challenge for Cause.</p> <p>Where upon trial for murder the jurors simply stated on their voir dire that they had formed an opinion that the deceased had been murdered, and as to the punishment to be inflicted, but that they had no opinion as to the guilt or innocence of the defendant and that they could give him a fair and impartial trial, there was no cause for challenge.</p> <p>5. —Same—Evidence—Absence of Defendant—Confronted by Witness.</p> <p>Upon trial for murder, where the State attempted to show by a witness who had found some books and papers in a place where defendant had camped, that the name of deceased appeared on some of these papers; to which the court sustained an objection that the books and papers themselves were the best evidence; whereupon the State’s attorney produced the books and papers and began to interrogate witness with reference to them, but in the meanwhile the defendant in charge of the sheriff had left the court room unobserved by either court or counsel, and shortly thereafter, when the court’s attention was called to the incident, the court immediately instructed the jury that they could not consider any testimony offered in defendant’s absence, and required the State’s counsel to reintroduce the exact testimony he had introduced in defendant’s absence; and there was no question as to the facts he did so reintroduce, to wit, the name of deceased. Held, there was no error and no violation of the constitutional or statutory provisions that defendant must be confronted by the witness and be present on the trial of felony. Distinguishing Bell v. State, 32 Texas Criin. Rep., 436.</p>

Tried below before the Hon. Clarence Martin. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case.

<p>Local Option—Sale—Insufficiency of the Evidence.</p> <p>Where upon trial for a violation of the local option law, the evidence showed that the State’s witnesses did not intend to buy whisky, and that it was fully understood that the defendant was not selling it, but that the money was given to him because of his kindness in waiting on the State’s witnesses, and not for the whisky, there was no violation of the law.</p>

<p>Appeal from the District Court of Burleson. Tried below before the Hon. E. B. Sinks.</p> <p>Appeal from a conviction of murder in the first degree; penalty, death.</p> <p>The opinion states the case.</p>

<p>1. —Aggravated Assault—Verdict—Charge of Court.</p> <p>On trial for aggravated assault where the court submitted the issues of aggravated and simple assault, and the jury found a general verdict assessing the defendant’s fine at $25, without stating whether they found him guilty of aggravated or simple assault, the same was reversible error. Following Lee v. State, 55 S. W. Rep., 14.</p> <p>2. —Same—Evidence—Declaration and Acts of Third Parties.</p> <p>On trial for aggravated assault it was error to admit the acts and declarations of a third party after the difficulty, with reference to the prosecuting witness.</p> <p>3. —Same—Charge of Court—Presumption of Innocence—Reasonable Doubt. Upon trial for aggravated assault the court, in his charges, should not have</p> <p>assumed the facts upon which' the State relied as having been proved; and should have so framed his charges as to throw the burden on the State to make out a case beyond a reasonable doubt; and should not have framed his charges in the negative in such manner as perhaps to leave the jury under the impression that the reasonable doubt was in favor of the State.</p>

<p>1. —Murder—Argument of Counsel—Charge of Court—Reading Law to Jury— Discretion of Court.</p> <p>Where upon trial for murder the State’s counsel in arguing the case to the jury read extracts from the Texas Criminal Reports, and the charge of the court was in line practically with the authorities so read, and there were no facts read to the jury from said reports. Held, that the reading of law to the jury is within the sound legal discretion of the court, and does not constitute reversible error unless probable injury is shown.</p> <p>2. —Same—Charge of Court—Arrest—Self-Defense.</p> <p>Where upon trial for murder the evidence showed that the defendant killed the deceased while taking him to jail for being drunk, and without warrant of arrest, and the court properly charged on this state of facts according to the rules laid down by the Court of Criminal Appeals, there was no error.</p> <p>3. —Same—Manslaughter—Self-Defense—Charge of Court.</p> <p>Where upon trial for murder, the court charged both on manslaughter and self-defense, and the evidence showed that the defendant as an officer was armed with a six-shooter and summoned another person to his assistance in making arrest of .deceased and carrying him to jail, without warrant of arrest, for being drunk; that the deceased was very drunk, and the two men having him under arrest were strong and vigorous, and should have been able to control their prisoner without shooting him, there was no point in the criticisms of appellant who received the minimum punishment for manslaughter, of the court’s charges on manslaughter and self-defense.</p>

<p>1. —Killing Child During Parturition.</p> <p>In iliis offense it must be shown that but for the act of the accused the child would have been born alive.</p> <p>2. —Same—Continuance—Pirst Application.</p> <p>Where upon trial for felony the motion for continuance showed that the testimony of the absent witnesses was material and important; that the defendant was in jail without counsel; that he requested the sheriff to have process issued for all his witnesses; that his attorney was 150 miles away; that it was his first application for continuance, the same should have been granted.</p> <p>3. —Same—Insufficiency of Evidence.</p> <p>Where upon trial for unlawfully killing a child during parturition where the evidence failed to show that the child was in a state of being born at the time of the destruction of its life, during parturition of the mother and before actual birth, and but for the destruction of its life by defendant the child would have been bom alive, the conviction could not be sustained.</p>

<p>1.—Murder—Manslaughter—Charge of Court—Insulting Language Concerning Female Relatives—Hearsay.</p> <p>Upon trial for murder where the defendant testified that certain State witnesses had told him that the deceased used insulting language concerning defendant’s daughter, and that he killed deceased for that reason; and the said State witnesses denied having given this information to the defendant; but other State’s witnesses testified that defendant had been informed of the same statement by deceased through them, and that they had heard this from the State’s witnesses who denied having made such statement, it was error for the court in his charge to limit the testimony of those State’s witnesses who insisted that such statement was made by the other State’s witnesses to the credibility. of the State’s witnesses who denied having given such information to the defendant. It made no difference whether the information that caused the killing was hearsay or not; the- question was, whether defendant believed it.</p> <p>2. —Same—Evidence—Declarations of Deceased Hot Communicated to Defendant.</p> <p>Where upon trial for murder the defense relied upon insulting language of the deceased concerning defendant’s daughter, and the State disputed said defense, it was error to reject testimony by the defense to show uncommunicated declarations by deceased concerning the want of chastity of defendant’s daughter, to show the credibility of defendant’s statement.</p> <p>3. —Same—Evidence—Witnesses as Strangers—Certificate of Judge.</p> <p>Where upon trial for murder the defendant sought to strengthen the testimony of certain witnesses because they were strangers in the county of the trial, and the certificate of the judge to the bill of exceptions did not verify this contention, the same could not be considered on appeal.</p> <p>4. —Same—Charge of Court.</p> <p>Where defendant had been acquitted of murder in the first degree and was again placed on trial, there was no reversible error in the court’s charge that defendant was now on trial for murder in the second degree, and that he would also submit to the jury the issue of manslaughter.</p>

<p>1. —Robbery—Witness—Practice in District Court—Re-Arrest.</p> <p>Where upon trial for robbery, the record on appeal showed that defendant’s principal witness—who had first been arrested with defendant for the same offense but had been released and not indicted by several grand juries, and who was then subpaeneed as a witness for him—was on the day of defendant’s trial rearrested, kept in custody of the officers, placed in the dock with the defendant during the trial, and was allowed to testify for defendant on the condition that he would tell the truth. Held that this character of proceeding was not justified and constitutes reversible error.</p> <p>2. —Same—Hand-Cuffing Prisoner—Practice.</p> <p>A defendant in a criminal cause should not be brought into court in irons and left in the courtroom for hours in this manner, the day before his trial, pending the setting of his case.</p>

<p>The opinion states the case.</p>

<p>1. —Murder—Capital Case—Insufficiency of Evidence.</p> <p>Where upon trial for murder the theory of the State was an intentional killing of deceased, and that of the defense that defendant thought he was killing his rival who had come to destroy his life; and the evidence indicated a want of premeditation and deliberation on the part of the defendant to take the life of the deceased, a verdict assessing the death penalty for murder in the first degree was not warranted.</p> <p>2. —Same—Evidence—Threats.</p> <p>Upon trial for murder where the supposed threat was not shown to have been made against the deceased, and that defendant simply threatened to kill a “guinea,” an appellation sometimes applied to negro women generally, the meaning of which was not understood by the witness, the same was inadmissible.</p> <p>3. —Same—Evidence—Practice in District Court—Confession—Warning—Withdrawal of Testimony Illegally Admitted.</p> <p>Where upon trial for murder the evidence of both parties had been closed and State’s counsel had begun his address to the jury when the court adjourned for recess, and upon resuming, the court was informed by defendant’s counsel of newly discovered testimony which contradicted one of the State’s witnesses with reference to the warning given defendant before making his confession, which the court refused to admit, saying that he would control the matter, and after the close of the State’s counsel’s argument withdrew the testimony of said State’s witness after it had been thoroughly discussed by State’s counsel. Held reversible error.</p> <p>4. —Same—Argument of Counsel.</p> <p>Where upon trial for murder, defendant’s counsel in discussing the evidence drew his conclusions that another party than defendant might have been with the deceased on the night of the homicide, saying that from this the rumor had gotten out that a man and woman had been killed, when he was interrupted by State’s counsel who said that as a matter of fact there was a negro man killed in the city that night in another place. Held, reversible error.</p> <p>5. —Same—Evidence—Leading Questions.</p> <p>Where upon trial for murder, the State’s attorney was permitted to place his questions in a leading form for evidence he sought to elicit from the witness, and the court promised he would sustain objections thereto yet he did not do so, but told the witness to answer, which he did, there was reversible error.</p>

<p>1. —Robbery With Firearms— Indictment—Duplicitous Pleading.</p> <p>Where in a prosecution for robbery, the indictment charged in one count two different offenses, to wit a robbery by the use of firearms, etc., and also a robbery by assault and putting in fear of bodily injury, etc., the first being a capital crime, and the second a non-capital felony, the indictment was bad for duplicity.</p> <p>2. —Same—Special Venire—Waiver—Conduct of Judge.</p> <p>Where upon trial for robbery by the use of firearms, etc., the record on appeal showed that appellant did not waive his right to a special venire, but that one of his attorneys and (lie court had some conversation about _this matter, and that the court remarked that .unless the special venire was called for by counsel he would consider the some waived. Held, error and that the court could not waive a special venire for a party charged with a capital offense.</p>

<p>Carrying Pistol—Traveler—Repairing Broken Pistol.</p> <p>Where upon trial for unlawfully carrying a pistol the evidence showed that defendant had a broken pistol out of repair and that he carried it to a blacksmith shop for the purpose of having it repaired, there was no violation of the law, although he carried it on and about his person.</p>

Tried below before the Hon. James C. Wilson. Appeal from a conviction of rape; penalty, death. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Assault With Intent to Murder—Bail—Practice in District Court.</p> <p>Under the Act of the Thirtieth Legislature, page 31, section 2, the defendant had the right to remain on bail during his trial for assault with intent to murder, and the action of the court in forcing him into the custody of the sheriff pending his trial was unauthorized and reversible error.</p> <p>2. —Same—Charge of Court—Shooting in Crowd.</p> <p>Where in a prosecution for assault with intent to murder, the indictment charged the' defendant with an assault upon two certain persons, a conviction must be predicated upon shooting at one or both of such parties with intent to kill, and a charge that if defendant shot into a crowd which embraced these parties with a specific intent to kill one or more in the crowd, was error.</p> <p>3. —Same—Evidence—Conspiracy—Detective—Declaration of Third Party.</p> <p>Upon trial for assault with intent to murder it was error to admit in evidence the declaration of an accomplice to a third party, made in the absence of defendant, that he, defendant and others had conspired to kill the hogs of the prosecutor, out of which transaction the assault arose; this was simply a narration of the fact that a conspiracy had been entered into, without showing that the same still existed, and was not made in furtherance of the common design; the same was purely hearsay and not admissible, as the statement of a co-copspirator, or to corroborate the accomplice; but might possibly have ^been admissible to show that the declarant was a detective.</p>

<p>The opinion states the case.</p>

<p>1. —Assault With Intent to Murder—Appearance Bond—Practice in District Court.</p> <p>Where upon trial for assault with intent to murder, the court during the trial of the cause directed the sheriff to place defendant in jail, he having executed bond as required by law, there was error, as under the Act of the Thirtieth Legislature, page 31, he could remain on bail during the trial, and until the return of the verdict of guilty.</p> <p>2. —Same—Accomplice—Detective—Evidence.</p> <p>Where upon trial for assault with intent to murder, a State’s witness testified that he had a conversation shortly before the alleged assault, with one of defendant’s alleged co-conspirators, who had testified for the State, in which the latter told him that defendant and others would go to the hog pen of prosecutor and kill the prosecutor’s hogs; and the court admitted this testimony on the ground that the State had already shown a conspiracy between defendant and said co-conspirator and others, to kill prosecutor’s hogs and kill any one who interfered, and that this testimony was the declaration of a co-conspirator made before the crime was committed. Held, that an accomplice cannot be corroborated by his own statement, and that the testimony was not admissible for that purpose, but might be admissible ■ as the statement? of a detective, said co-conspirator having informed prosecutor of said conspiracy, before it was carried out.</p> <p>3. —Same—Charge of Court—limiting Testimony.</p> <p>Where on the trial of felony, testimony was admitted of a conspiracy between the defendant and others, by a witness under the theory that he was a detective, and who testified as to the formation of such conspiracy, and who testified not as an accomplice, such testimony should be limited by a charge of the court to the purpose for which it was admissible.</p> <p>4. —Same—Evidence—Husband and Wife—Codefendant.</p> <p>Upon trial for assault with intent to murder, it was error to permit the wife of a 'codefendant, who was indicted for the same offense but by different indictment, to testify against the defendant, her husband not having testified and his case being still pending.</p> <p>5. —Same—Charge of Court—Accomplice,</p> <p>Where upon trial for assault with intent to murder, the facts were apparent from the evidence that a State’s witness who testified was an accomplice, there was no error in. the charge of the court instructing the jury that he was an accomplice.</p> <p>G.—Same—Charge of Court—Specific Allegation in Indictment.</p> <p>Where in a prosecution for assault to murder, the indictment specifically alleged that defendant shot at one certain party, it was error to charge that if defendant with intent to kill said party, or some one in the crowd, shot said party, etc.</p>

<p>1. —Local Option—Indictment.</p> <p>Where in a prosecution for a violation of the local option law, the indictment was in the usual form approved by this court, the same was sufficient.</p> <p>2. —Same—Evidence—Publication—Certificate of County Judge.</p> <p>Where upon trial for a violation of the local option law, the certificate of the county judge of the publication declaring the result of the election for the time required by law, contained a statement that the election was legally held, etc., and the bare repetition of what had been done, the admission in evidence of such additional statement in the certificate could not have injured the defendant.</p> <p>3. —Same—Certificate of Judge—Dictation to Clerk.</p> <p>The mere fact that the clerk did the manual labor of transcribing the order of publication upon the minutes, either from the copy furnished by the county judge or under his dictation and direction, would not vitiate the certificate, and the same was admissible in evidence upon trial for a violation of the local option law.</p> <p>4. —Same—Charge of the Court—Criminal Intent.</p> <p>Where upon trial for a violation of the local option law the evidence showed that the defendant received whisky by express C. O. D. and took money from a third party, delivering to said party certain portions of the whisky for the money theretofore advanced, the same constituted a sale in violation of the law, and requested charges as to the intention of defendant were correctly refused.</p> <p>5. —Same—Additional Charge of Court.</p> <p>There was no error in the court giving an additional explanatory charge to the jury.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. Gordon Boone. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. Cullen C. Higgins. Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary.

<p>1. —Murder—Sufficiency of the Evidence.</p> <p>See opinion for facts held sufficient to support a conviction for murder in the first degree. ®</p> <p>2. —Same—Res Gestae—Evidence.</p> <p>Where upon trial for murder the evidence showed that the wife of deceased was in bed in the house at the time her' husband was shot on the gallery and did not see the shooting; that on account of conditions she lay there about an hour after the shooting, and not hearing from her husband, went to him and brought him into the room, asking him who shot him, and he replied the defendant ; that in about fifteen minutes thereafter deceased remarked that he was going to die, and that he did die during the night, such testimony was admissible as res gestae.</p> <p>3. —Same—Circumstantial Evidence—Charge of Court—Statement of Deceased.</p> <p>Where upon trial for murder the court’s charge on circumstantial evidence was more favorable than the facts justified, and the statement of deceased possibly placed the case beyond the scope of circumstantial evidence, there was no error.</p> <p>4. —Same—Constitutional law—Jury and Jury law.</p> <p>Under the Constitution, article 5, section 13; article 1, section 10 id., and Bill of rights, section 15, as well as under articles 10, 21 and 22, Code Criminal Procedure, the right of trial by twelve jurors in a felony case is placed beyond the reach of the accused even waiving such right; and where in a trial for murder the jury was originally composed of twelve men. but one was excused by agreement of the parties and a verdict was rendered by eleven of the remaining jurors, who all signed the verdict, the same was a nullity, and reversible error.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Habeas Corpus—Intoxicating Liquors—License.</p> <p>Where relator obtained license for the retail sale of intoxicating liquors on the 28th of May, 1907, which under the then existing law would have entitled him to pursue that business for twelve months, and by the Act of the Thirtieth Legislature, page 256 et seq.. new provisions for the sale of intoxicating liquors were provided, which act took effect July 12, 1907, and defendant was arrested on the 12th day of September, 1907, for a violation of said new law, the relator had no authority to sell intoxicating liquors under his old license on the 12th of September, 1907; and upon writ of habeas corpus was remanded to custody.</p>

<p>Carrying Pistol—Variance—Public Assembly.</p> <p>On trial for unlawfully carrying a pistol where the evidence showed that defendant carried the pistol near or at a place where people had assembled, there was no variance between the allegation and the proof, and appellant could be convicted under the charge in the indictment of unlawfully carrying on and about his person a pistol; although he could have been punished under a proper pleading for having carried the pistol at a public assembly.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Appeal from the County Court of Harrison. Tried below before the Hon. H. T. Lytleton.</p> <p>Appeal from a conviction of disturbing the peace; penalty, a fine of $5.</p> <p>The opinion states the case.</p>

Tried below before the Hon. B. L. Bobinson. Appeal from a conviction of theft under the value of $50; penalty, a fine of $15 and thirty days confinement in the county jail. The opinion states the case.

The State’s testimony showed that some colored people had a Sunday-school rally; that about the time the exercises were over and the meeting was breaking up, some person fired off a pistol, some two or three hundred yards up the road from the church; and some remarks were made with reference to the shooting, by parties present; that the party injured who was standing on the ground outside of the door with one foot on the doorstep remarked, that they had to stop shooting…

<p>Appeal from the District Court of Lavaca. Tried below before the Hon. M. Kennon.</p> <p>Appeal from a conviction of theft of a horse; penalty, five years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

The indictment, leaving out the formal portion, alleged that defendant “ * * * after the commissioners court of said county had ordered an election for the purpose of determining whether or not the sale of intoxicating liquor should be prohibited in said county, which order of said election had been duly posted as required by law, and after the qualified voters of Upshur County, Texas, had determined at an election held in accordance with the laws of the State of Texas that…

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Murder—Jury and Jury Law—Challenge for Cause—Race Discrimination— . Former* Conviction—Bill of Exceptions.</p> <p>Upon trial for murder, where both the defendant and the deceased were negroes, and but one white witness testified for the State, whose testimony was not material; and the jurors upon their voir dire stated distinctly that they had no prejudice against defendant, but that they would not accord to a negro’s testimony the same degree of credit that they would accord to that of a white man, the race question could have had no effect in the case. Besides the bill of exceptions reserved to the taking of the objectionable juror did not show that he was objectionable; and the fact that said juror knew of defendant’s former conviction, would not make him a prejudiced or unfair juror.</p> <p>2. —Same—Misconduct of Jury—Allusion to Former Conviction.</p> <p>Where upon trial for murder there was evidence of a former trial, and it also appeared that some of the jurors knew of a former conviction, but it did not appear that any discussion was had of this matter in the jury room, and the most that could be said was that it was casually referred to; and it did not seem that such reference had made any impression on any member of the jury, there was no such misconduct under article 823, Code Criminal Procedure, prohibiting an allusion to a former conviction which constituted reversible error. Following Baines v. State, 43 Texas Crim. Rep., 490; 66 S. W. Rep., 847; Gaines v. State, 8 Texas Ct. Rep., 616. Distinguishing Horn v. State, 50 Texas Crim. Rep., 404; 17 Texas Ct. Rep., 271</p> <p>3. —Same—Substituting Indictment—Nunc Pro Tunc Order—Notice.</p> <p>Upon trial for murder there was no error to enter a nunc pro tunc order substituting the lost indictment upon motion by the State, said motion for substitution stating that the order of substitution which had been made at a previous term had not been signed by the judge. The order on the minutes although not signed by the judge was valid and gave defendant notice and it was not necessary to serve defendant with special notice; nor was such nunc pro tunc order invalidated by embracing other matters which the original order should have included.</p> <p>4. —Same—Argument of Counsel—Conduct of Defendant.</p> <p>Upon trial for murder there was no error in State’s counsel’s closing argument in referring to the fact that defendant while on the witness stand had laughed; this being a fact.</p> <p>5. —Same—Evidence—Res Gestae.</p> <p>Upon trial for murder there was no error in admitting testimony that defendant had slapped a third party in the face, just before the homicide occurred and immediately in connection therewith.</p> <p>6. —Same—Evidence—Declarations by Defendant—Limiting Testimony.</p> <p>Upon trial for murder there was no error in admitting the declarations of defendant on a former trial in the nature of a confession, and there was no error in not limiting this testimony.</p> <p>7. —Same—Charge of Court—Argument of Counsel—Husband and Wife.</p> <p>On trial for murder there was no error in the court’s charge with respect to the argument of State’s counsel, based on the failure of defendant to place his wife on the witness stand.</p> <p>8. —Same—Charge of Court—Express Malice—Murder in Second Degree.</p> <p>Upon trial for murder there was no error in a charge, that while the evidence might show express malice, that the jury might nevertheless convict defendant of murder in the second degree.</p> <p>9. —Same—Aggravated Assault—Negligent Homicide—Charge of Court.</p> <p>On trial for murder where the facts did not justify a charge on aggravated assault, nor on negligent homicide, there was no error in failing to charge thereon.</p> <p>10. —Same—Charge of Court—Apparent Danger.</p> <p>Where upon trial for murder, the court charged correctly on the appearance of danger, there was no error in refusing defendant’s special instruction on this issue.</p>

Tried below before the Hon. John L. Terrell. Appeal from a conviction of unlawfully betting at a game played with cards; penalty, a fine of $30. Leaving out the formal parts of the information, the same charged that defendant did then and there unlawfully bet and wager at a game played with cards, contrary, etc. The opinion states the case.

The explanation of the court to defendant’s bills of exception numbers 7 and 8, with reference to the statement of Jeff Tedley to the husband of prosecutrix, B. B. Culpepper, is as follows: “Witness had not been asked upon his direct examination by the State anything about the conversation with Tedley; and defendant on cross-examination interrogated the witness about what he had said to Tedley, and Tedley to him, among other questions witness was asked by defendant’s counsel…

<p>The opinion states the case.</p>

Tried below before the Hon. J. 0. Rouse. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the county jail. The following statement by the Assistant Atton^-General is substantialfy correct: The facts show that appellant lived at the town of Winnsboro and that he had a business in the town of Elberta, some ten miles distant.

<p>1. —Keeping Open Saloon on Election Day—Identity of Defendant.</p> <p>Where upon trial for unlawfully keeping open saloon on election day, the evidence showed that the State’s witness knew the .defendant Bob Smith: that the latter was engaged in the saloon business; that defendant’s saloon was open on election day, and he was in it, the introduction of a liquor dealer’s bond issued to R. H. Smith, the defendant being charged in the information as Bob Smith, the same if error was immaterial. •</p> <p>2. —Same—Statutes Construed.</p> <p>Under an information drawn under article 185, Penal Code, a conviction is sustained where the proof showed that defendant was engaged in the saloon business, and that the saloon was open on election day, by or under the direction of defendant; and it was not necessary to prove that the defendant sold, gave away or offered to sell intoxicating liquors. Following Crowell, 25 Texas Crim. App., 596.</p>

Tried below before the Hon-. J. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail. The opinion states the case. •

Tried below before the Hon. J. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, $50 and thirty days confinement in the county jail. The opinion states the case.

Tried below before the Hon. J. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the penitentiary. The State’s testimony showed that prosecutor purchased whisky from defendant. The testimony of defendant’s witnesses tends to show an alibi. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Appealed from the Criminal District Court of Galveston. Tried below before the Hon. J. K. P. Gillaspie. Appeal from a conviction of burglary with intent to commit rape; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the ease.</p>

From Tarrant Count)’'. Original application for habeas corpus for a release from an arrest, by virtue of a warrant upon a complaint charging relator with a violation of the city ordinance of the City of Fort Worth, which prohibited the conducting of saloons without the limits fixed and prescribed by the Board of Commissioners of said city. The opinion states the case.

<p>1. —Robbery—Jury and Jury Raw—Special Venire—Sheriff’s Return—Postponement.</p> <p>Where upon trial for robbery, during the empanelment of the jury, the defendant asked the postponement of the trial until two certain jurors marked on the special venire list by the sheriff’s return as served, but who did not answer to their names when called, could be brought into court, or to quash the special venire, which motion was overruled; and thereupon the two jurors, after others had been selected on the jury, came into court, and testified that they had not been summoned; they were then qualified as jurors, and peremptorily challenged by the State. Held, that even if these two jurors had actually been summoned, the court was not required to delay the trial on account of their absence, but could have issued attachment; but as the jurors were brought into court and challenged by the State, the defendant could not complain.</p> <p>2. —Same—Evidence—Res Gestae—Theft of Other Property—limiting Testimony.</p> <p>Upon trial for robbery, where the property alleged to have been taken consisted of paper money of the United State, which was taken by force by means of an assault upon the express messenger on a moving train, there was no error in admitting testimony that three bills of exchange which were traced to the possession of such messenger, disappeared at the same time that the alleged robbery and the taking of said money occurred, although defendant was not charged in the indictment with the robbery of said bills of exchange. This was part of the res gestee; and the court was not required to limit such testimony.</p> <p>3. —Same—Circumstantial Evidence.</p> <p>Upon trial for robbery there was no error in admitting in evidence the conductor’s card or pass, shown to have been issued to defendant and used by him, and found in his possession in a mutilated condition after the robbery.</p> <p>4. —Same—Attorney and Client—Evidence—Argument of Counsel.</p> <p>Where upon trial for robbery it appeared that at the time defendant was arrested, certain grips belonging to him were surrendered by his landlady to his attorney in defendant’s absence, and the State was not able to show by direct evidence that defendant directed his attorney to get these grips, but identified them as those belonging to defendant, which he had left with his landlady. Held, there was no error in admitting this testimony and permitting State’s counsel in his argument to refer to the grips and the fact that he was not able to show the contents thereof; and this, even if it be conceded that defendant’s attorney under his privilege as such, could refuse to disclose the contents of said grips. Following Mercer v. State, 17 Texas Grim. App., 452; Armstrong v. State, 34 Texas Grim. Rep., 248.</p> <p>5. —Same—Evidence—Original Books of Entry—Copies—Memorandum—Harmless Error—Notice—Bill of Exceptions.</p> <p>Where upon trial for robbery, the State over the objection of the defendant was permitted to introduce in evidence by a number of express agents’ testimony, that they had put up on the day preceding the robbery along the route of the train, various packages containing money; that they were not able independently of their books to state the amount of money put up by them or the character and the denomination of the bills, but that they had examined the Express Company’s books and had made a copy therefrom, showing the amount of money sent in the packages and the denomination and character of the bills, and they referred to the copy so made, in order to enable them to testify as to the denomination of said bills. Held, that inasmuch as the conviction did not rest upon these bills, but upon others which were circumstantially identified and found in the possession of the defendant, that the admission of the above testimony was harmless error. Besides the bill of exceptions did not show that notice was given to produce these books, or how they would have aided defendant in cross-examination, or that there were any inaccuracies in the copies produced.</p> <p>6. —Same—Charge of Court—Serious Bodily Injury.</p> <p>Where upon trial for robbery, the evidence showed the intent of the robber to inflict serious bodily injury, there was no error in the court’s charge in defining serious bodily injury, even if it was not full enough in that respect.</p> <p>7. —Same—Charge of Court—Punishment—Defendant as Witness.</p> <p>Upon trial for robbery there was no error in the court’s charge in stating the punishment for the offense charged; nor with reference to appellant’s right in not testifying.</p> <p>8. —Same—Charge of Court—Credibility of Witness—Impeachment.</p> <p>Upon trial of robbery where the State upon cross-examination of defendant’s witness brought out the fact that the witness had been charged with murder and robbery, the court correctly charged the jury that this testimony simply affected the credibility of said witness.</p> <p>9. —Same—Charge of Court—Alibi.</p> <p>Where upon trial for robbery there was no affirmative testimony on the part of defendant tending to prove an alibi, but the. State was only able to show his presence at the commission of the crime, circumstantially, and the tendency of defendant’s testimony was to put himself elsewhere, the court was authorized to charge on alibi, and there was no error.</p> <p>10. —Same—Circumstantial Evidence—Recent Possession—Charge of Court.</p> <p>Where upon trial for robbery, the evidence showed that when defendant was arrested about one month after the robbery, that he was found in possession of some of the money taken at the robbery, the court was not required to instruct the jury that the possession of the money found on defendant after the robbery was not such recent possession as would authorize the jury to regard such possession as a circumstance against him.</p> <p>11. —Same—Sufficiency of Evidence.</p> <p>Where upon trial for robbery the evidence reaonably identified some of the money taken at the time of the robbery, which was found in defendant’s possession at the time of his arrest about one month after the robbery, together with other circumstances in the case showing his guilt, the verdict was sustained.</p> <p>12. —Same—Verdict Responsive to Indictment—Deadly Weapon—Charge of Court.</p> <p>Where upon trial for robbery the indictment charged a robbery by the use of deadly weapons, and also used some expressions to indicate a charge of simple robbery, and the court instructed the jury on both robbery by assault and robbery with deadly weapons, and the jury found a verdict for simple robbery ^nd gave the punishment for that offense, the verdict was responsive to the indictment and the court’s charge, and there was no error.</p>

Tried below before the Hon. Hiram F. Lively. Appeal from a conviction of aggravated assault; penalty, a fine of $25. The opinion states the case. .

<p>The opinion states the ease.</p>

The State’s witness testified that he had a difficulty with the defendant in the night-time * * *. That defendant drew a pair of knucks from his right hip pocket and struck at the prosecutor * * :|:; that he did not hit prosecutor with the knucks, prosecutor knocking off the lick and dodging, defendant glazing the side of prosecutor’s head * * *.

<p>The opinion states the case.</p>

Tried below before the Hon. W. W. Helmes. Appeal from a conviction of an aggravated assault; penalty, a fine of $25. The opinion states the case.

<p>The opinion states the case.</p>

Tried below before the Hon. M. J. Smith. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.

<p>1. —Local Option—Internal Revenue License—Examined Copy—Evidence.</p> <p>Article 407a, enacted by the Twenty-eight Legislature, provides that an examined copy of the internal revenue license taken out from the Federal authorities may be used as evidence; and upon trial for a violation of the local option law, it was error to permit a witness to testify that he had examined the books of the United States Internal Revenue Collector, and permit the witness to testify from a memorandum book, which did not contain an examined copy of said license. Before the witness would be authorized to introduce an examined copy, he must have such copy, and it must be shown to be an examined copy, as laid down by the authorities, under which said article, 407a was enacted.</p> <p>2. —Same—Subpoena duces tecum—Secondary Evidence.</p> <p>Where upon trial for a violation of the local option law, the State’s witness was permitted to testify from memory that he examined the books of the Internal . Revenue Collector, and that said books showed that another person than defendant had taken out a license to sell whisky; and the court admitted this testimony because the defendant had not produced the revenue license after being served with a subpoena duces tecum. Held, that defendant not being in legal possession of said license could not be forced to produce it, and that such testimony was inadmissible.</p> <p>3. —Same—Definition of Examined Copy—Legislative Construction.</p> <p>While it is not only the examined copy of the internal revenue license which the Internal Revenue Collector could make which would be evidence in local option cases, yet it must be an examined copy as that word has been construed by the authorities, and as such construction was understood by the Legislature when the statute was enacted, allowing such examined copy to be used as evidence. Qualifying Goble v. State, 42 Texas Grim. Rep., 501. Reviewing Thurman v. State, 45 Texas Grim. Rep., 569; Gersteman v. State, 35 Texas Grim. Rep., 318; Lucio v. State, 35 Texas Grim. Rep., 320; Pitner v. State, 37 Texas Grim. Rep., 268.</p>

Tried below before the Hon. John L. Terrell. Appeal from a conviction of unlawfully carrying a pistol; penalty, $300. The opinion states the case.

Tried below before the Hon. F. E. Adams. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100. The opinion states the case.

The record shows that the local option election was adopted on the 8th day of March, 1906; that defendant was charged for a violation thereof, on March 12, 1907; that the complaint was made and the information filed thereon on the 29th day of July, 1907, and that defendant was convicted on the 30th day of November, 1907; that said county court convened on the 18th day of November, 1907, and adjourned on the 7th day of December, 1907.

Tried below before the Hon. J. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, $25 and twenty days confinement in the county jail. The opinion states the case.

<p>1. —Local Option—Affidavit—Information.</p> <p>Where upon trial for a violation of the local option law the affidavit and the information were according to approved precedent, there was no error.</p> <p>2. —Same—Plea of Former Acquittal—Evidence—Former Conviction.</p> <p>Where upon trial of a violation of the local option law, the defense interposed a plea of former acquittal, and the evidence showed two separate sales by defendant, on different dates, the State electing to prosecute on the last date; and the defense introduced a judgment of acquittal for said last transaction; whereupon the State to counteract such judgment, introduced a judgment of former conviction, the latter not being connected with the point at issue in the case, and being unrelated to the case, the same was reversible error.</p> <p>3. —Same—Former Acquittal.</p> <p>See opinion with reference to remarks by the court on the question of former acquittal.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Local Option—Evidence—Intoxicating Liquors.</p> <p>Upon trial for a violation of the local option law, it was error to admit testimony that the prosecuting witnesses were arrested and fined for drunkenness, after having been in defendant’s place of business, to show that the drinks sold by defendant were intoxicating; as presented in the record of this case, as it appeared that the witnesses also obtained liquor elsewhere.</p>

<p>Appeal from the County Court of Fannin County. Tried below be- • fore the Hon. H. A. Cunningham.</p> <p>Appeal from a conviction of unlawful habitual carnal intercourse without living together; penalty $100.</p> <p>The opinion states the case.</p>

<p>Appeal from the County Court of Grayson. Tried below before the Hon. J. W. Hassell.</p> <p>Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the county jail.</p> <p>The opinion states the case.</p>

Tried below before the Hon. E. E. Adams. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail. The opinion states the case. '

Tried below before the Hon. J. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, $50 and thirty days confinement in the county jail. The opinion states the case.

<p>Appeal from the County Court of Hunt. Tried below before the Hon. J. W. Manning.</p> <p>Appeal from a conviction of a violation of the local option law; penalty, $25 and twenty days confinement in the county jail.</p> <p>The opinion states the case.</p>

Tried below before the Hon. J. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail. The opinion states the case.

<p>local Option—Internal Revenue license—Charge of Court—Harmless Error— Evidence.</p> <p>Where upon trial for a violation of the local option law, the evidence as to the sale of the whisky was positive, the introduction of internal revenue license in evidence whether right or wrong became immaterial and was harmless error, if error.</p>

<p>Appeal from the County Court of Fannin. Tried below before the Hon. H. A. Cunningham.</p> <p>Appeal from a conviction of a violation of the local option law; penalty, $35 and twenty days confinement in the county jail.</p> <p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. F. E. Adams. Appeal from a conviction of simple assault; penalty, a fine of $5. The opinion states the case.

<p>1. —Theft—Sufficiency of Evidence.</p> <p>See opinion for evidence held to be sufficient to sustain a conviction for the theft of a gun.</p> <p>2. —Same—Ownership—Charge of Court.</p> <p>Where upon trial for theft the evidence showed that the alleged stolen property belonged to the party alleged as the owner, and that his son temporarily used it, the court correctly refused a charge that the ownership was proved to be in the son and to acquit the defendant.</p>

Tried below before the Hon. J. T. Spencer. Appeal from a conviction of a violation of the gaming law; penalty, a fine of $10. The opinion states the case.

Tried below before the Hon. James I. Perkins. Appeal from a conviction of manslaughter; penalty, two years confinement in the penitentiary. The opinion states the case.

From Dallas County. Original application for habeas corpus for release from an order of arrest, under article 114, Code Criminal Procedure, for attempting to commit an offense against the laws of the State, by giving theatrical performances on Sunday. The opinion states the case.

<p>The opinion states the case.</p>

<p>1.—Theft—Variance—Paper Money.</p> <p>Where upon trial for theft, the indictment alleged the theft of 880 in money, the same being paper currency money of the United States of America, and the proof showed various denominations of paper currency money, there was no variance.</p> <p>2. —Same—Self-Serving Declarations.</p> <p>Upon trial for theft, there was no error in rejecting testimony of a witness as to self-serving declarations by the defendant to the witness.</p> <p>3. —Same—Bill of Exceptions.</p> <p>Where upon appeal for a conviction of theft, there was no bill of exceptions as to the rejection of testimony, the same could not be considered.</p> <p>4. —Same—Evidence.</p> <p>Upon trial for theft of certain money there was no error in permitting the prosecuting witness to testify that the money in question looked like the money that he had lost.</p>

<p>Carrying Pistol—Traveler—Charge of Court.</p> <p>Where upon trial for unlawfully carrying a pistol, the evidence showed that the defendant was traveling, and that on his journey there was a brief incidental delay, the charge of the court which instructed the jury on the question of traveling, among other things, that if defendant engaged in anything not connected with his business or journey to find him guilty, was reversible error. Following Quinn v. State, 50 Texas Grim. Rep., 209; Granger v. State, 50 Texas Grim. Rep., 488. Distinguishing Irvin v. State, 51 Texas Grim. Rep., 52; Navarro v. State, 50 Texas Grim. Rep., 326.</p>

<p>1. —Murder—Conspiracy—Evidence—Declaration of Co-Conspirator.</p> <p>Upon trial for murder, there was no error in admitting the declaration of a co-conspirator to the effect that the deceased was getting too G—d d—d smart in accusing his boy of stealing a coat, and if he did not take it back, by G—d, he intended to kill him, the record showing that defendant and his co-conspirator had entered into a conspiracy; and this, although the conspiracy was shown after this testimony was introduced.</p> <p>2. —Same—Charge of Court—limiting Testimony.</p> <p>Where upon trial for murder, the court properly limited according to approved precedent impeaching testimony to the credibility of the witness involved, there was no error. Following Winn v. State, 34 Texas Crim. Rep., 37; Dean v. State, 47 Texas Crim. Rep.," 243; Elkins v. State, 48 Texas Crim. Rep., 205.</p> <p>3. —Same—Charge of Court—Principals.</p> <p>Where upon trial for murder the evidence showed declarations by defendant showing ill-will towards the deceased, and proximity to the homicide, etc., the charge on the law of principal was justified.</p> <p>4. —Same—Charge of Court—Conspiracy—Principals.</p> <p>Upon trial for murder where there was evidence of a conspiracy, there was no error in the court’s qualification of defendant’s special instruction, to the effect that the declaration of a codefendant threatening deceased could not be taken against defendant, unless defendant and said codefendant had entered into an agreement to kill the deceased.</p>

Tried below before the Hon. E. B. Bitchie. Appeal from a conviction of violating quarantine regulations; penalty, a fine of $25. The opinion states the case.

<p>1. —Assault With Intent to Murder—Charge of Court—Alibi.</p> <p>Where upon trial for assault with intent to murder, the evidence showed that when the prosecutrix was struck with a knife or other sharp instrument while she was in or about a street car, and the defendant testified that he was within some twenty-five or thirty feet from where the assault occurred and did not commit the assault, nor see it, the issue of alibi was raised thereby, and the court correctly charged thereon.</p> <p>2. —Same—Aggravated Assault—Charge' of Court.</p> <p>Where upon trial for an assault with intent to murder, the evidence showed that the prosecutrix was stricken by a murderous blow inflicting a serious wound, and defendant denied having committed the offense, the issue of aggravated assault was not raised by the evidence, and no charge thereon was necessary.</p>

<p>Aggravated Assault—Serious Bodily Injury—Insufficiency of Evidence.</p> <p>Where upon trial for aggravated assault, based upon an allegation of serious bodily injury, where the evidence showed that prosecutor and defendant engaged in a fight, in which defendant kicked prosecutor on the back of the head, and also on the nose, etc., and that the prosecutor was laid up two or three days only and was entirely well in eight or nine days, etc., the same was insufficient to sustain a conviction for aggravated assault, on the ground alleged in the information.</p>

Tried below before the Hon. J. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the county jail. The opinion states the case.

<p>1.—Manslaughter—Evidence—Child-Witness—Discretion of Court.</p> <p>Where upon trial for murder, it was shown that the State’s witness when tendered as a witness, was ten years old; that he could read and write; was in the third grade; had gone to school; knew it was right to tell the truth and wrong to tell an untruth, and seemed to comprehend that he would be punished by imprisonment if be swore falsely; and that diligent and careful inquiry was made by the trial court as to the competency of the witness, his ruling that he was, will not be reversed under the circumstances.</p> <p>2. —Same—Evidence—Bill of Exceptions.</p> <p>Upon triii 1 for murder, where the court excluded testimony of the defense, that immediately after the killing, the wife of the deceased stated that her husband was drinking and that she expected just such trouble; for the purpose of contradicting State’s testimony, that deceased was not drunk, etc.; and the bill of exceptions did not show that the defendant proposed to prove this fact, or that the witness would have sworn thereto, the same could not be considered on appeal; besides the alleged testimony was a mere opinion of the witness, and inadmissible.</p> <p>3. —Same—Evidence—Expert Opinion of Witness.</p> <p>Where upon trial for murder, it was not permissible of an expert witness for the State, who was called as a physician to testify with reference to the nature of the wound inflicted upon deceased, to testify as an expert as to the relative position of the parties involved in the homicide, yet bis answers, with reference as to the direction of the stroke by defendant, were so self-evident that no sane mind could question the accuracy of the facts stated by him, whether testified about or not, there was no error in admitting such testimony, as it could not have injured defendant.</p> <p>4. —Same—Charge of Court—Self-Defense.</p> <p>Where upon trial for murder, the theory of the defense was that the altercation between defendant and deceased arose suddenly; that deceased thrust his hand into his pocket as if to draw a knife, and the defendant then seized a stick and struck the deceased, and the charge of the court taken as a whole on the issue of self-defense as applied to the evidence, was sufficient, there was no error in refusing special charges similar in import upon the same subject.</p>

Tried below before the Hon. R. L. Bryan. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100. The opinion states the case.

<p>1. —Assault With Intent to Commit Rape—Charge of Court—Defensive Theory.</p> <p>Where upon trial for assault with intent to commit rape, the testimony for the defense showed that the only purpose defendant had in having a scuffle with prosecutrix was to secure a ring from her, and not for the purpose of having carnal intercourse, it was error on. part of the court to fail to charge on this theory of the defense.</p> <p>2. —Same—Charge of Court—Want of Chastity—General Reputation of Prosecutrix.</p> <p>Where upon trial for assault with intent to commit rape there was evidence attacking the general reputation of the prosecutrix for chastity and also acts of intercourse before the alleged assault, the jury should have been instructed that this testimony had a bearing on the question of the prosecutrix’ consent as well as of the intent of the defendant, and the charge practically limiting the same to the credibility of the prosecutrix, was error.</p> <p>IS.—Same—Aggravated Assault—Charge of Court.</p> <p>Where upon trial for assault with intent to commit rape, the evidence showed for the State that the defendant desisted in his efforts to have carnal intercourse; and the testimony for the defense showed that it was not the purpose of defendant to have carnal intercourse with prosecutrix but that he was attempting to take a ring away from her, it was error to limit a charge on aggravated assault to defendant’s intent to have sexual intercourse with prosecutrix, and the court should have charged if the assault was made, to obtain the ring, that such would constitute aggravated assault.</p>

<p>The opinion states the case.</p>

<p>local Option—Hearsay Evidence.</p> <p>Upon trial for a violation of the local option law, it was error to permit the State’s witness to testify that a third party gave him a bottle and said he had gotten it from the defendant; that this bottle contained whisky, and that this occurred in the absence of the defendant; defendant denying any sale of whisky to prosecutor.</p>

<p>The indictment charged, leaving out formal parts of it: “The grand jurors for the County of Somervell, State aforesaid, duly organized as such, at the November term, A. D., 1906, of the district court for said county, upon their oaths in said court present, that on or about the 17th day of May, A. D., 1905, and anterior to the presentment of this indictment in the County of Somervell and State of Texas, at a regular term of the district court, holden in and for said county, the Hon. W. J". Oxford, judge of said court, presiding, and before the grand jury of said county, which had theretofore been duly and legally organized and empaneled for said term of court with J. W. Childress as the legally appointed foreman and which said grand jury was also then and there in session, Oliver MeVieker, did then and there present himself and make his personal appearance to testify as a witness before said grand jury and J". W. Childress, foreman of the said grand jury, as he was then and there authorized by law to do, did administer to the said Oliver MeVicker the oath as a witness, said oath being one required by law, and so administered for the ends of public justice; and the said Oliver MeVieker was then and there duly sworn and did take his corporeal oath as such witness before said grand jury as aforesaid. Whereupon it then and there became and was a material inquiry before said grand jury, and necessary for the due administration of the criminal laws of the State of Texas and the ends of public justice, whether one T. F., in said county and State on or about the loth day of April, A. D., 1905, did go to the house and place of residence of him, said Oliver McVicker, in the night-time and then and there talk with him, said Oliver McVicker, and the said Oliver McVicker as such witneio before said grand jury, and under the sanction of said oath, so administered to him, as aforesaid, on the day and date first above written did say and testify in substance 1 that he had had carnal intercourse with one M. 1ST., prior to the 17th day of May, 1905, and in substance that he had not been paid or promised any money or anything of value to testify in behalf of the said T. F., and that he had not had any conversation or understanding with the said T. F., as to what his testimony would be before said grand jury concerning the seduction of the said M. 1ST. by the said T. F., and said question so propounded to him by the said grand jury was material in enabling the said grand jury to pass on the credibility of the said 0. McV., and in enabling them, the said grand jury, to determine whether or not the said McV. had been paid or promised any money or anything of value, to testify in behalf of the said T. F., and he, the said 0. McV., did deliberately, wilfully and corruptly testify and say in substance and effect that T. F. did not go to the house and place of residence of him, the said 0. McV., in said county and State, on or about the 15th day of April, A. D., 1905, nor at any other time after the first Sunday in April, 1905, that is, the said 0. McV. did then and there before said grand jury as aforesaid testify that one T. F. never did go to see him, said O'. McV., at his residence, in the County of S., and State of Texas, about the case, that was then pending against the said T. F., in S. County, Texas, in which case the said T. F. was charged with the seduction of one M. IST., in S. County, Texas, which said statement so made by the said McV. was material before said grand jury. Whereas, in truth and fact, as he, the said 0. McV., then and there well knew that T. F. in the County of S., and State of Texas, on or about the 15th day of April, A. D., 1905, did go to the house and place of residence of him, said 0. McV., in the night-time, and then and there talked with him, said 0. McV., concerning the said charge against the said T. F., which said statement so made by the said 0. McV. was material and unlawful and was deliberately and wilfully made, and was deliberately and wilfully false, as he, the said 0. McV., then and there well knew, against, etc.</p>

Tried below before the Hon. J. H. Calhoun. Appeal from a conviction of theft from the person; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>Simple Assault—Confession—Insufficiency of Evidence.</p> <p>Upon trial for simple assault, it was error to admit defendant’s bare verbal confessions made when under arrest, both under the former and present law; defendant denying said confessions.</p>

Tried below before the Hon. P. E. Adams. Appeal from a conviction of a violation of the local option law; penalty, $100 and sixty days confinement in the county jail. The opinion states the case.

<p>1. —local Option—Charge of Court—Principals.</p> <p>Where upon trial for a violation of the local option law there was evidence that defendant and another were acting together in the common enterprise of selling intoxicating liquor for mutual profit in prohibited territory, the court correctly charged on the law of principals and accomplices, in the form approved by this court; especially where the court submitted a special charge that unless the defendant authorized such sale he could not be convicted.</p> <p>2. —Same—Validity of Election.</p> <p>Where upon trial for a violation of the local option law, the questions raised on trial as to the validity of election had been adversely decided to appellant’s contention by this court, the same will not be considered on appeal.</p> <p>3. —Same—Evidence—Internal Revenue license.</p> <p>Upon trial of a violation of the local option law, there was no error in admitting parol testimony of the existence of internal revenue license in defendant’s place of business.</p> <p>4. —Same—Declaration of State’s Witness—Defensive Theory.</p> <p>Where upon trial for a violation of the local option law, the State introduced defendant’s alleged agent as a witness against him who among other things testified that he was not authorized by defendant to sell liquor in the county of the trial, the jury were not bound by such statement but could look at the circumstances surrounding the entire case.</p> <p>6.—Same—Evidence—Pretext.</p> <p>Upon trial for a violation of the local option law, where the defendant claimed that he had authorized the State’s witness to sell intoxicating liquor in the Indian Territory alone and not in the county of the prosecution, where said witness as the agent of the defendant kept liquor for sale in a tent near the State border, and in which tent internal revenue license was exhibited in defendant’s name, there was no error in admitting testimony with reference to certain proceeds defendant and his agent claimed that they had received for sales of liquor in the Indian Territory; as this appeared but a mere pretext.</p>

Tried below before the Hon. M. J. Thompson. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and forty days confinement in the county jail. The opinion states the case.

Tried below before the Hon. M. J. Thompson. Appeal from a conviction of selling malt liquors without license; penalty, twenty days confinement in the county jail.

Tried below before the Hon. E. A. Hill. Appeal from a conviction of a violation of the local option law; pen-alt)', a fine of $25 and twenty days confinement in the county jail. The opinion states the case.

Tried below before the Hon. W. J. Oxford. Appeal from a conviction of the embezzlement of a horse; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Burglary—Railroad Car—Charge of Court.</p> <p>Where upon trial for a burglarious entry into a railway car, the defendant claimed that he had been told by his superior to go and nail up the car, and that he entered the car to see if anything had been taken from it; and there was no pretense or claim in the evidence that defendant was in the car by the direction of his superior, it was error of the court to charge the jury that defendant claimed that he was in the car under the direction of his said superior, and unless this was untrue to acquit.</p> <p>2. —Same—Evidence.</p> <p>• Where upon trial for burglary, there was not entire accord between the testimony of the State’s witnesses with reference to defendant’s declaration and statements when he was arrested as to what his superior told him, it was error not to permit defendant to show by his superior that defendant had stated upon being arrested that he had not broken open the car, etc., and what his superior told him about nailing up the car, as this explanation was material.</p> <p>3. —Same—Evidence—Defendant’s General Reputation.</p> <p>Where upon trial for burglary the defendant relied mainly upon his immediate explanation of the circumstances of his presence in the car, on the ground that he was instructed to nail up the car; and it was the effort of the State to break down this explanation which involved an attack upon defendant’s credibility, it was error to exclude testimony as to defendant’s general reputation for truth and veracity.</p>

<p>1. —Local Option—Evidence—Elections.</p> <p>Where upon trial for a violation of the local option law the orders and records read in evidence were sufficient to show and did show the due and regular adoption of local option, there was no error in overruling objections thereto.</p> <p>2. —Same—Evidence—Unwilling Witness—Discretion of Court.</p> <p>Where upon trial for a violation of the local option law, the State’s witness was unwilling and reluctant in answering State’s counsel’s questions, and the latter claimed surprise at the witness’ testimony, there was no error in the State’s counsel’s question: if the witness did not tell him that the stuff he bought from defendant looked like beer and was intoxicating, to which witness answered in the negative. This was largely in the discretion of the court. Davidson, Presiding Judge, dissenting.</p> <p>3. —Same—Evidence—Search and Siezure of Intoxicating Liquors—Impeaching Testimony.</p> <p>Upon trial for a violation of the local option law, where the defendant contended that he had never kept intoxicating liquors, there was no error in permitting the State to introduce testimony that some six weeks after the alleged sale, the officers under a search warrant seized a quantity of intoxicating liquor in the possession of the defendant; and that the defendant allowed the officers to condemn and break up the vessels' holding the liquor, and that he paid the cost in the confiscation case. This testimony was admissible for the purposes of impeachment. Davidson, Presiding Judge, dissenting.</p> <p>4. —Same—Charge of Court—Eon-Intoxicant.</p> <p>Where upon trial for a violation of the local option law, the defendant contended that the beverage that he permitted to be sold was a non-intoxicant, the court correctly charged that if defendant in good faith believed that the liquor that be caused to be sold was non-intoxicating to acquit, and the charge was favorable to defendant.</p> <p>5. —Same—Sufficiency of Evidence—Fair Trial.</p> <p>Where upon trial for a violation of the local option law, the facts of the case upon the whole were fairly presented to the jury, and the issue as to whether the liquor was intoxicating was favorably submitted, the verdict of guilty will not be disturbed.</p>

Tried below before the Hon. James A. Harrison. Appeal from a judgment refusing a writ of habeas corpus and remanding relator to the custody of the sheriff. The opinion states the case.

Tried below before the Hon. W. H. Pope. Appeal from a conviction of assault with intent to murder-; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. W. M. Holland. Appeal from a conviction of keeping a disorderly house; penalty, a fine of $200, and twenty days confinement in the county jail. The opinion states the case.

Tried below before the Hon. George S. March. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.

<p>1. —Local Option—Substitution of Lost Papers—Practice on Appeal—Affidavits.</p> <p>Where upon appeal from a conviction of a violation of the local option law, the record showed clearly and definitely that the lost original papers had been substituted, the judgment of the court substituting these papers settles that issue, and can not be attacked by affidavits.</p> <p>2. —Same—Practice on Appeal—Time for Making Out Transcript.</p> <p>. Where upon appeal in a criminal case, motion was made by the State to dismiss the appeal because the record was not filed within ninety days as required in civil cases, the same was not well taken. The statute requires that the clerk of the court shall make up a transcript, and the attorneys had no authority in the matter.</p> <p>3. —Same—Statement of Facts—Copy of Orders.</p> <p>Where upon appeal in a criminal case, it appeared that the clerk inserted orders of the commissioners court into the statement of facts, the same was not authorized, and there being nothing to show that a local option election was held, the judgment must be reversed.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>local Option—Insufficiency of Evidence.</p> <p>Where upon trial for a violation of the local option law, the evidence failed to connect defendant with a sale of the whisky with that degree of certainty that excludes every other reasonable hypothesis than the guilt of defendant, the conviction could not be sustained.</p>

<p>1. —Perjury—Words and Phrases—Charge of Court—Deliberately.</p> <p>Upon trial for perjury where the court charged • that if the jury found from the evidence that defendant made through inadvertence, or under agitation, or by mistake the statement upon which the perjury was predicated to find him not guilty, there was no error in not specifically defining the word “deliberately.”</p> <p>2. —Same—Charge of Court—Oath.</p> <p>Upon trial of perjury where the court charged that if the officer did not administer an oath to the defendant on the occasion when the defendant is alleged to have made the false statement to acquit the defendant, there was no error.</p> <p>3. —Same—Charge of Court—Burden of Proof—Date of Offense.</p> <p>Where upon trial for perjury, where the court charged that if the jury found and believed from the evidence that the game or games of cards upon which this perjury was based, were played at a different time than that alleged in the indictment, to acquit, there was no error.</p> <p>4. —Same—Oath Administered.</p> <p>Where upon trial for perjury, the same was based on the following oath: “Do you solemnly swear that you will true and correct answers make to all such questions as may be propounded to you on this occasion, to be the truth concerning the penal laws of Texas, so help you God,” the same sufficiently complied with the statute.</p> <p>5. —Same—Charge of Court—Wilfully.</p> <p>Upon trial for perjury, where the court charged in defining the term “wilfully,” that it meant that the act of the defendant was done with an evil intent, or without reasonable grounds to believe the act to be lawful, the definition was correct.</p> <p>6. —Same—Evidence—Oath Administered.</p> <p>Upon trial for perjury, there was no error in permitting a State’s witness to testify that the defendant was sworn by the officer and the oath administered to him.</p> <p>7. —Same—Indictment—Questions Propounded.</p> <p>Where in a prosecution of perjury, the indictment alleged that the defendant testified with reference to a game of cards at a place not then and there a private residence, occupied by a family, alleging time and venue, it was sufficient, without setting forth the questions propounded to the witness as to time and place.</p> <p>S.—Same—Justice of the Peace—Administering Oath.</p> <p>Upon trial for perjury, there was no merit in the objection that' the justice of the peace had no authority to administer the oath upon which the perjury was based, or that the same was not in writing.</p> <p>9.—Same—Evidence—Declarations of Defendant—Grand Jury.</p> <p>Upon trial for perjury there was no error in admitting the declarations of defendant made after he had been before the grand jury, to the effect that he and other parties would have to pay a fine for playing cards, and was not a revelation of the secrets of the grand jury.</p>

<p>local Option—Evidence—Search and Seizure—Contemporaneous Transactions.</p> <p>Upon trial for a violation of the local option law, .the State introduced testimony of a seizure under a search warrant of a quantity of intoxicating liquors in the possession of defendant, some six weeks after the alleged sale for which defendant was being tried. Held, that the contemporaneous possession of intoxicating liquors by defendant is admissible in evidence where he is being prosecuted for the sale of intoxicating liquors in violation of the local option law; however, this testimony did not show reasonably contemporaneous possession, and its admission was reversible error. Overruling Parish v. State, 48 Texas Crim. Rep., 578; Harris v. State, 50 Tex. Crim. Rep., 411, 97 S. W. Rep., 704; Harris v. State, 100 S. W. Rep., 920. Davidson, Presiding Judge, dissenting. ■</p>

<p>The opinion states the case.</p>

<p>Appeal from the District Court of Montague. Tried below before the Hon. Clem B. Potter.</p> <p>Appeal from a conviction of manslaughter; penalty, three years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Appeal from the County Court of Jack. Tried below before the Hon. Sil Stark.</p> <p>Appeal from a conviction of aggravated assault; penalty, a fine of $25.</p> <p>The opinion states the case.</p>

<p>1. —Occupation Tax—Constitutional law—Non-Intoxicants—local Option Territory.</p> <p>The Constitution of the State of Texas, section 2, article 8, provides that all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax.</p> <p>2. —Same—Bill of Rights—Equal Rights.</p> <p>Section 3 of the bill of rights, Constitution of Texas, provides that all freemen, when they form a social compact, have equal rights, and no man or set of men is entitled to exclusive separate public emoluments or privileges but in consideration of public services.</p> <p>3. —Same—Rule of Construction—legislative Will.</p> <p>The prime object of all rules of interpretation is to ascertain the will and intent of the lawmaker. This may be oftenest done, and usually can best be done by giving effect to the language used, considered and construed in its ordinary sense; and where the meaning is obvious and an exception is made in precise terms the courts are neither required nor permitted to speculate as to what the Legislature meant.</p> <p>4. —Same—legislative Construction.</p> <p>It is also a cardinal rule of construction that the meaning of one portion of an act may be aided by other provisions contained in the same act, but where there is no kindred legislation and the exception is contained in the first section of the act, and there is no reference thereto in any other portion of the act, the construction must be of the act itself as it stands written on the statute books.</p> <p>5. —Same—Interpolations.</p> <p>Where the language used is unambiguous, the court will not interpolate other words, not used by the Legislature, and strike out and down the clear and precise words used, of such ordinary signification as to rebut the presumption that they were used either ignorantly or inadvertently by the Legislature and were not meant to include an exemption of a certain class of taxpayers.</p> <p>6. —Same—Statutes Construed.</p> <p>The safest rule of interpretation is furnished by our own civil and criminal statutes as construed by our appellate courts, that when words used in the statutes are free from ambiguity or doubt, etc., there is no occasion to look elsewhere.</p> <p>7. —Same—Occupation Tax—Non-Intoxicating Malt Liquors.</p> <p>The Thirtieth Legislature undertook to levy and did levy an occupation tax on non-intoxicating malt liquors in local option territory, on all firms, persons, associations of persons and corporations, selling at retail non-intoxicating malt liquors; providing that said law should not apply to regular druggists or pharmacists, who as such keep for sale as a part of a regular drug store such proprietary remedies as malt extract, malt medicine and malt and iron, used exclusively as medicines, and not as a beverage. Held, that such act is unconstitutional in that it strikes down the guarantee of the Constitution that taxes shall be equal and uniform.</p> <p>8. —Same—Police Regulation—Tax Law—Local Option.</p> <p>Section 1 of the Act of the Thirtieth Legislature, page 212, is a tax law, its sole and only purpose being to levy a tax on the occupation named, and to provide for its collection, and is not a police regulation; but at any event, is discriminatory legislation and violative of the bill of rights; nor can it be justified as an aid to local option.</p> <p>9. —Same—Constitutional Guarantees—Statutes.</p> <p>The Constitution is the supreme law, and it is as important to the citizen that his rights are not invaded in violation of constitutional guarantees, as it is that an act of the Legislature should be upheld.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. E. A. Hill. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.

Tried below before the Hon. J. T. Spencer. Appeal from a conviction of a violation of the local option law; penalty, $25 and twenty days confinement in the county jail. The opinion states the case.

<p>Burglary—Sufficiency of Evidence.</p> <p>See opinion for evidence held sufficient to support a conviction of burglary.</p>

Tried below before the Hon. Sil Stark. Appeal from a conviction of using abusive language; penalty, a fine of $5. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>local Option—Opinion of Witness—Intoxicants.</p> <p>Upon trial for a violation of the local option law, where the State’s witness testified that he thought the beer alleged to have been sold was intoxicating, the evidence was suflSeient to prove the intoxicating qualities of the beverage; besides there was no issue made upon this phase of the case.</p>

<p>The opinion states the case.</p>

<p>1. —Burglary—Charge of Court—Consent.</p> <p>Where upon trial for burglary, the court charged that if defendant was admitted to the house by the watchman or any other person in authority, and he by reason of such permission and consent of said watchman entered said house, he would not be guilty as charged, and if so, or in ease of a reasonable doubt, the jury should acquit, the same was favorable to defendant, and he could not complain.</p> <p>2. —Ownership.</p> <p>Where one has the control, care and management of the property alleged to have been stolen, he can be alleged to be the owner in fact.</p> <p>3. —Same—Sufficiency of Evidence.</p> <p>See opinion for evidence held to be sufficient to sustain a conviction of burglary.</p> <p>4. —Same—Charge of Court—Accomplice.</p> <p>Where upon trial for burglary, the evidence showed that the watchman who handed defendant some of the property which the latter was charged with having stolen, had authority to enter any part of the building, said watchman could not be guilty of burglary, although he might have been guilty of theft, and there was no error in failing to charge on accomplice testimony.</p> <p>5. —Same—Jury and Jury law—Bill of Exceptions.</p> <p>Where there was no bill of exceptions with reference to objections to some of the jurors in a trial for burglary, the same could not be considered on appeal.</p>

<p>1. —Murder In Second Degree—Negligent Homicide—Accidental Shooting.</p> <p>Accident is implied in negligent homicide of both the first and second degrees, and where upon trial for murder, there was evidence showing an accidental killing, and the court charged on that phase of the case, there was no error, that the court failed to charge on negligent homicide. Following Garner v. State, 34 S. W. Rep., 420.</p> <p>2. —Same—Charge of Court—Sudden Transport of Passion.</p> <p>See opinion for remarks of the court to the effect that the phrase “sudden transport of passion” should be omitted in a charge on murder in the second degree.</p> <p>3.—Same—Charge of Court—Declaration by Defendant.</p> <p>Where upon trial for murder the State put in evidence not only the declaration by defendant, but that of other witnesses, to the effect that the killing was accidental, it became the duty of the court to charge the jury that the burden rested on the State to show that the exculpatory statements of the defendant, which were in writing, were untrue, before they could find defendant guilty.</p>

Tried below before the Hon. M. J. Thompson. Appeal from a conviction of disturbing the peace; penalty, a fine of $5 and a judgment dismissing appeal bond from justice to county court. The opinion states the case.

<p>local Option—Indictment—Amendment.</p> <p>Where upon trial for a violation of the local option law, the indictment alleged the particular election, and the publication in the newspaper under it, the State would be confined to proof of said election, and it was a matter of substance that could not be stricken out under article 587, Code Criminal Procedure, as an amendment, and it was reversible error to do so.</p>

Tried below before the Hon. J. P. Inman. Appeal from a conviction of theft and embezzlement; penalty, sixty days confinement in the county jail. The opinion states the case.

<p>1. —Local Option—Order of Commissioners Court—Publication.</p> <p>Under article 3391, Revised Statutes, it is not required that the order of the commissioners court declaring the result of the election, etc., shall provide that the newspaper shall be selected by the county judge for the publication of the order declaring the result of the election; that is made his duty by law, independent of any such direction or order by said court.</p> <p>2. —Same—Publication—Certificate of County Judge.</p> <p>The fact that the county judge certifies that publication was made, in the absence of anything to the contrary, will be sufficient proof that the same was made in a newspaper selected by him, and under his direction.</p> <p>3. —Same—Charge of Court—Local Option in Force.</p> <p>Where upon trial for a violation of the local option law, the orders of the commissioners court and the certificate of publication of the comity judge were admitted in evidence without objection, it will be presumed that the method of making such proof was legal, and the .court was justified to instruct the jury that local option was in force in the county at the time of the offense charged.</p>

1 Tried below before the Hon. J. N. Browning. Appeal from a conviction of embezzlement; penalty, a fine of $50 and sixty days confinement in the county jail. The opinion states the case.

Tried below before the Hon. James L. Shepherd. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Theft From Ferson—Jury and Jury law—Jury Wheel—Bill of Exceptions.</p> <p>Where upon appeal from a conviction of theft from the person, the bill of exceptions did not show that appellant proved or would have proved the facts stated in the bill, in respect to drawing the jury from jury wheel, the same can not be considered. Besides the court shows that there was no error in the drawing of the jury.</p> <p>2. —Same—Evidence—Former Conviction—Credibility of Witness.</p> <p>Where upon trial for theft from the person, the record showed that the defendant had not been out of the penitentiary more than three or four years, the same was not too remote to affect his credibility as a witness.</p>