53 Tex. Crim.

Volume 53 — Texas Criminal Reports

183 opinions

53 Tex. Crim. 1Owens v. State (1908)
The opinion states the case.
53 Tex. Crim. 2Williams v. State (1908)
Tried below before the Son. W. W. Nelms. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
53 Tex. Crim. 4Reed v. State (1908)
The opinion states the case.
53 Tex. Crim. 6Hooton v. State (1908)
1. —Theft—Charge of Court. Where upon trial for theft, there was no evidence that the prosecutor threw his money around promiscuously in a bar room, there was no error in the court’s failure to charge, on such state of case. 2. —Same—Charge of Court—Theft Prom the Person. Where upon trial for theft and theft from the person, the jury found the defendant guilty of theft, they thereby acquitted defendant of theft from the person; besides the testimony being wholly circumstantial and the precise means and methods of the taking not being shown, there was no error. 3. —Same—Charge of Court—Definition of Offense—Weight of Evidence. Where upon trial for theft the court in the preliminary portion of his charge used the language that the property was taken from prosecutor’s person, but applied the law correctly throughout, the charge was not on the weight of the evidence,. and there was no- error. 4. —Same—Evidence—Identification. Upon trial for theft of money, there was no error to exhibit the stolen currency bills to the jury, while testimony was being introduced as to their identification, as the alleged stolen money. 5. —Same—Evidence—Codefendant—Discretion of the Court. Upon trial for theft of money, there was no error in bringing into court defendant’s codefendants for identification, at the request of the State’s counsel, there being nothing in the record that such identification was collusive; this was a matter largely in the discretion of the court.
53 Tex. Crim. 11Wimberly v. State (1908)
The opinion states the case.
53 Tex. Crim. 14Baker v. State (1908)
1. —Simple Assault—Information—Filing. Where upon trial for simple assault, the information was in proper form and filed, there was no error. 2. —Same—Charge of Court—Peace Officer. Upon trial for aggravated assault upon a peace officer, the court correctly charged that if the jury believed from the evidence that the defendant was guilty of an assault upon the party injured but that defendant at the time did not know and had not been informed that the said person was an officer, to find defendant guilty of simple assault. 3. —Same—Charge of Court—Undisputed Fact. Upon trial for aggravated assault upon a peace officer, there was no reversible error that the court instructed the jury that prosecutor was the deputy sheriff, this being an undisputed fact, and the verdict was for simple assault. 4. —Same—Charge of Court—Defense of Another. Upon trial for aggravated assault where the evidence did not raise the issue that defendant was acting in defense of his companion, there was no error in not submitting this issue.
53 Tex. Crim. 16Wingo v. State (1908)
The opinion states the case.
53 Tex. Crim. 17Woodring and Howard v. State (1908)
1. —Scire Facias—Appearance Bond—Surrender of Principal. Under article 318, Code Criminal Procedure, it was necessary that a manual surrender by the sureties of their principal was made, in order that they be released from his appearance bond; and a mere promise that they would do so was not sufficient. 2. —Same. The laws of this State provide but two modes in which bail can effect surrender of their principal: One being by surrendering him into the custody of the proper officer; and the other by making affidavit, and obtaining a warrant.
53 Tex. Crim. 18Jirou v. State (1908)
1.—Murder—Evidence—General Reputation of Deceased—Communicated and ITncommunicated Threats—Evidence. Article 713, Penal Code, makes no distinction in the rule laid down authorizing the introduction of proof of deceased’s reputation, between threats communicated or uncommunicated, nor would there seem to be any reason why, as to communicated threats, a different rule should obtain between cases where the threats were communicated to a defendant and believed by him, in a case where they were made to him by the deceased in person, and there was no error in such case to admit in evidence deceased’s general reputation as a peaceful man, upon a trial for murder. Distinguishing Gregory v. State, 50 Texas Crim. Rep., 73; 94 S. W. Rep., 1041; Keith v. State, 50 Texas Crim. Rep., 63; 94 S. W. Rep., 1044. Approving Russell V. State, 11 Texas Crim. App., 288; Simms v. State, 38 Texas Crim. Rep., 462. 3.—Same—Charge of Court—Manslaughter—Transport of Passion—Harmless Error. Where upon trial for murder the issue of manslaughter was not in the case, and the defendant was convicted of murder in the second degree, it was harmless error in the court’s instruction on manslaughter that the killing must occur in a transport of passion, aroused by adequate cause, instead of simply charging passion. 3. —Same—Murder—Self-Defense—Manslaughter. Where upon trial for murder, the facts made out for the State a straight case of murder, and defendant’s evidence raised the issue of self-defense alone, there was no issue of manslaughter in the case and no charge on manslaughter- was necessary. See opinion for evidence which did not raise the issue of manslaughter. 4. —Charge of Court—Self-Defense—Charge as Entirety—Appearance of Danger—Defendant’s Standpoint. Where upon trial for murder the evidence showed from the Stale’s standpoint an assassination, and defendant testified to recent threats by deceased and hostile demonstrations when they met on the roadside, there being no eyewitnesses, and the court instructed the jury on self-defense on actual and threatened attack, according to the issues raised by the facts when the charge of the court was considered as an entirety, there was no merit in defendant’s contention in singling out an isolated portion of the charge on self-defense, because the court had not instructed the jury therein on appearances of danger from defendant’s standpoint, but had charged on actual attack, and there was no error. Following Bryant v. State, 47 S. W. Rep., 373.
53 Tex. Crim. 27Baker v. State (1908)
The opinion states the case.
53 Tex. Crim. 30Stovall v. State (1908)
1. —Murder—Manslaughter—Charge of Court—Maltreatment of Physician— Gross Neglect. Where upon trial for murder the evidence showed that the deceased lingered for some time after being stabbed with a knife by defendant, and the court properly submitted the issue of improper treatment and gross neglect as cause of the death, there was no error in refusing defendant’s special, instructions on the same subject. Besides- the evidence did not show any improper treatment on the part of the physicians of the deceased. 2. —Same—Evidence—Res Gestae—Statement of Deceased. Where upon trial for murder, the record showed on appeal that the deceased had made a statement after he was stabbed some twelve or thirty minutes thereafter, as to the occurrence of the difficulty, the same was res gestae and admissible in evidence. 3. —Same—Immaterial Testimony—Bill of Exceptions. Where upon appeal from a conviction of manslaughter,' the bill of exceptions simply showed that the defendant objected to the testimony of the State’s witness, who was his cousin and engaged to marry deceased, because the same was irrelevant, the same did not authorize a reversal. 4. —Same—Expert Opinion—Evidence—Relative Position of Parties. Where upon trial for murder, a physician qualified himself as an expert witness and showed the range of the wound in deceased’s body, such testimony was admissible, and did not relate to the relative positions of defendant and deceased at the time the wound was inflicted. 5. —Same—Charge of Court—Murder, in First Degree. Where upon trial for murder, the defendant was convicted of manslaughter, he could not complain that the court erred in charging upon murder in the first degree.. 6. —Res Gestae Statement—Sufficiency of Evidence. Where upon trial for murder, the res gestee statement of deceased was that he and defendant got into a difficulty, that he struck defendant in the breast, and that when he started to walk off defendant ran up behind him, stabbed him, and jumped to one side, a conviction for manslaughter was sustained. [Eehearing denied without written opinion.—Beporter.]
53 Tex. Crim. 37Ex Parte Thomas (1908)
The opinion states the case.
53 Tex. Crim. 38Geary v. State (1908)
1. —Carrying Slung-shot—Definition. Where upon trial for- unlawfully carrying a slung-shot, the evidence showed that defendant carried a stick about eight or ten inches long, it being an ordinary chair-round, smaller at one end than at the other; the small end having a hole bored through it, with a string run through it, which could be hung on the wrist, and the larger end of the round had some holes bored in it, and seemed to be filled with some kind of metal, this was not a slung-shot within the meaning of the statute. 2. —Same—Definition of Slung-shot. A slung-shot is a metal ball of small size with a string attached, used for striking. See opinion for further definition.
53 Tex. Crim. 39Geary v. State (1908)
Carrying Pistol—Sufficiency of Evidence. Where upon trial for unlawfully carrying a pistol the evidence showed that the defendant went out, from the house where he had had a personal altercation, some distance, secured a pistol and returned, evidently anticipating trouble with the person with whom he had had the altercation; and there was no immediate and pressing danger to defendant’s life, or such as authorized him to go out and arm himself and return to the scene of the difficulty, the conviction is sustained.
53 Tex. Crim. 42Halsford v. State (1908)
1. —Assault With Intent to Murder—Charge o£ Court—Express Malice—Former Grudges. Where upon trial for assault with intent to murder the evidence showed that the meeting between defendant and the party assaulted was a chance meeting, and that the whole difficulty sprung up suddenly and lasted but a minute or two, the defendant denying that he intended to kill prosecutor, which the State did not controvert, the court erred in his charge in instructing on express malice and lying in wait, antecedent menaces, and former grudges. 2. —game—Charge of Court—Express Malice. Where upon trial for assault with intent to murder there was no evidence of express malice, and none of the indicia of malice contained in the court’s charge, it was error to submit the law of the case on these subjects. 3. —Same—Charge of Court—Adequate Cause—Incumbering Defensive Theory. Where upon trial for assault with intent to murder, there was no evidence that the injuries inflicted upon defendant by the party assaulted were by means of weapqns or other instruments of violence, the court erred in charging that if the conflict was brought on by the prosecutor by means of weapons or other instruments of violence, although the defendant was the aggressor, etc. 4. —Same—Charge of Court—Intent to Kill—Adequate Cause. Upon trial for assault with intent to murder, even if the evidence showed that the defendant may have begun the difficulty, and may have intended when he began it, to bring on a conflict and have a fist fight with the assaulted party, still, unless at the time he intended to produce an occasion for killing prosecutor, he would not be deprived of his ground of adequate cause by reason of the great injury inflicted on Mm; and the charge of the court not submitting the law as here laid down, was reversible error. 5.—Same—Charge of Court—Aggravated Assault—Passion—Manslaughter. Upon trial for assault with intent to murder, where the evidence showed that the difficulty between defendant and the party assaulted occurred suddenly, and showed no previous ill-will between the parties, but blows were passed between them, the defendant finally striking prosecutor with a plank, seriously injuring him, the court in charging on manslaughter, required the jury to find that the assault was made by defendant in a sudden transport of passion, instead of passion aroused by adequate cause, rendering the mind of defendant incapable of cool reflection, the same was reversible error.
53 Tex. Crim. 48Felts v. State (1908)
1. —Theft from the Person—Receiving Stolen Property—Charge of Court. Where upon trial for theft from the person and theft, the evidence raised the issue of receiving stolen property, a requested charge submitting this theory of the casé should have been given. 2. —Same—Receiving Stolen Property—Circumstantial Evidence. Where upon trial for theft, theft from the person, etc., the evidence was circumstantial as to how the alleged money was taken, several parties being involved, and the defendant, if guilty at all, was guilty of receiving some of the alleged stolen money, after it was taken by his codefendant, a charge of the court properly submitting this phase of the case should have been given as requested.
53 Tex. Crim. 50Edwards v. State (1908)
The opinion states the case.
53 Tex. Crim. 54Ryan v. State (1908)
The opinion states the case.
53 Tex. Crim. 55Kenecht v. State (1908)
local Option—Jury and Jury law—Challenge for Cause. Where upon trial for a violation of the local option law, defendant’s codefendant had been tried for the same offense under a separate complaint, and the testimony of the State rested upon a common witness, and was similar in each case, the jurors who tried said codefendant were disqualified from trying defendant, and the challenge for cause should have been sustained. Following Holmes v. State, 52 Texas Crim. Rep., 353.
53 Tex. Crim. 57McElroy v. State (1908)
1. —Theft of Horse—County line—Venue. Where upon trial for theft of a horse the evidence showed that the offense was committed within one hundred yards of the county line of the county of the prosecution, the venue was sufficiently proved under article 228, Code Criminal Procedure. 2. —Same—Accomplice Testimony—Charge of Court. Where upon trial for theft of a horse it was a controverted question as to whether or not the main State’s witness was an accomplice, and the court submitted the question as to whether said witness was an accomplice to the jury, and required corroboration before they could convict, it must be inferred that the jury decided that said witness was not an accomplice from the fact that there was no testimony corroborating him. Davidson, Presiding Judge, dissenting.
53 Tex. Crim. 61Joliff v. State (1908)
The opinion states the case.
53 Tex. Crim. 71Hobbs v. State (1908)
1. —Murder—Severance—Dismissal by State—Practice in District Court. Where upon trial for murder it appeared defendant and his two codefendants were separately indicted; that the court had granted defendant’s motion for a severance and had ordered that his two codefendants should be first tried; but that afterwards the State was permitted by the court to enter a nolle prosequi as to said codefendants over defendant’s objection and defendant was forced to trial; that no immunity was granted said defendants; that the State rested its case without placing said codefendants on tire witness stand as demanded by defendant’s written motion which was overruled. Held no error. Overruling Puryear v. State, 50 Texas Grim. Rep., 454. 2. —Same—Secondary Evidence—Inquest Proceedings—Confronting Witnesses. Where upon trial for murder, it appeared that the testimony of two State’s witnesses had been reduced to writing in due form at an inquest during a regular proceeding before a justice of the peace, and opportunity for cross-examination had been afforded defendant, and said witnesses had since moved beyond the jurisdiction of the State, such testimony was admissible. Poliowing Porch v. State, 51 Texas Grim. Rep., 7. Davidson, Presiding Judge, dissenting. 3. —Same—Rule of Necessity—Discretion of Court—Practice in District Court. After all it must be left to the discretion of the prosecuting officers and of the trial court to say whether in a given case it is deemed necessary or important to have before the trial court the testimony of witnesses, either dead or beyond the jurisdiction of the State; and the mere fa.ct that other witnesses could testify to the same state of things as the absent witnesses, would be immaterial. 4. —Same—Evidence—Husband and Wife—Cross-Examination—Impeachment. Upon trial for murder where the defendant placed his wife upon the witness stand in his own behalf, for the purpose only of proving that on the day preceding the homicide the deceased had used insulting language toward her, and that she communicated the same to the defendant shortly before the homicide, and the State thereupon was permitted on cross-examination to ask her whether she did not tell a State’s witness just a few moments before the killing that she had told her husband of the insult by the deceased and that they had gone to look for deceased and she .did not know what was going to happen, which statement the witness denied; and there was no testimony that defendant had told his wife that he was going to look for deceased, whereupon the State was permitted to impeach the wife by the said State’s witness. Held reversible error. Following Bluman v. State, 33 Texas Grim. Rep., 43, and other cases.
53 Tex. Crim. 93Ex Parte Coleman v. State (1908)
Prom Dallas County. Original application for writ of habeas corpus asking release of relator from arrest under executive warrant upon extradition proceedings. The opinion states the case.
53 Tex. Crim. 101King v. State (1908)
1. —Local Option—Evidence—Internal Revenue License—Examined Copy—Constitutional Law. Upon trial for a violation of the local option law, there was no error in admitting in evidence an examined copy of an internal revenue license; and the law permitting such testimony is not ■ violative of the constitutional provision that all persons shall be confronted by the witnesses against him. Following Dent v. State, 43 Texas Grim. Rep., 126. 2. —Same—Insufficiency of Evidence. Where upon trial for a violation of the local option law, a conviction could be sustained only on the assumption that the defendant was the owner of the house in which the liquor was sold, and ran the business, and the evidence on this issue was meager and uncertain, the conviction could not be sustained.
53 Tex. Crim. 105Owens v. State (1908)
1. —Occupation Tax—Constitutional law—Assignment of Wages. The Act of the Twenty-ninth Legislature, page 207, which imposes an occupation tax on certain persons, etc., procuring assignment of wages not due, etc., transfers of wages not yet due, etc., and providing certain exemptions, is unconstitutional and in violation of sections 1 and 2, article 8, Constitution of Texas. 2. —Same—Restraint of Trade—Fourteenth Amendment. The Act of the Twenty-ninth Legislature, page 207, which imposes an occupation tax on certain persons, etc., procuring assignment of wages not due, etc., violates the Fourteenth Amendment to .the Constitution of the United States, it being in restraint of trade and class legislation.
53 Tex. Crim. 109Westerman v. State (1908)
1. —Aggravated Assault—Assault to Rape—Indictment. Where in a prosecution for assault with intent to rape the indictment charged that the prosecutrix was not the wife of defendant, and charged the other ingredients of the offense, the same was sufficient. 2. —Same—Continuance. Where upon trial for assault with intent to rape the testimony of the absent witnesses set out in the motion for continuance was not material, because the same did not contravene the State’s case, there was no error in overruling the motion. [Behearing denied June 24, 1908.—Beporter.]
53 Tex. Crim. 112Houston v. State (1908)
The opinion states the case.
53 Tex. Crim. 113Moore v. State (1907)
The opinion states the case.
53 Tex. Crim. 115MacHen v. State (1908)
Appeal from the County Court of Hardin. Tried below before the Hon. H. F. Tickers. Appeal from a conviction of conducting a public gaming house; penalty, a fine of $26 and twenty days confinement in the county jail. The opinion states the case.
53 Tex. Crim. 117Smith v. State (1908)
1. —Embezzlement—Scope of Statute—Implied Authority of Agent. Article 938, Penal Code, was intended to include and embrace cases where money was received by virtue of the express terms of the employment or agency, or where such money was received by virtue of the implied authority of the agent, or the authority fairly and reasonably resulting from the express terms of his employment or agency; and where such money was received by authority cither direct or such as might be reasonably implied from the situation of the parties and their course of dealing, and the confidential nature of their relations. ' 2. —Same—Sufficiency of Evidence—Case Stated. Where upon trial for embezzlement, the evidence showed that defendant was in charge of his employer’s business to sell organs and return proceeds thereof to liis employer; that he was in custody and control of the organ in question by virtue of his employment; that the same had been charged against him upon the stock-book; that another agent of defendant’s employer under similar employment took said organ with the consent of defendant, sold the same, and delivered the money therefor to defendant under an agreement that the latter was to pay the same over to the common employer, and that the defendant fraudulently appropriated the money to his own use. Held, that the receipt of such money by defendant by virtue of his agency and employment was authorized and in the scope of his said employment and the subject of embezzlement thereunder; and that its fraudulent conversion supported the conviction under the indictment charging him with embezzlement under said employment. Discussing Brady v. State, 2'J Texas Grim. App., 659. Distinguishing Goodwyn v. State, 64 S. W. Rep., 251. Davidson, Presiding Judge, dissenting.
53 Tex. Crim. 131Jones v. State (1908)
Tried below before the Hon. J. K. P. Gillaspie. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary.
53 Tex. Crim. 143Hinson v. State (1908)
The opinion states the case.
53 Tex. Crim. 147Hargrave v. State (1908)
1. —Murder—Statement of Facts—Questions and Answers—Stenographers’ Report—Condensed Form. Under the Act of the Thirtieth Legislature, page 510, with reference to statement of facts in criminal cases, it is provided that in felony cases, in the event of appeal, an accurate stenographic record shall be kept of all proceedings of the trial, and in ease of disagreement of counsel, so much of the stenographer’s report shall be inserted in the statement of facts as is necessary to show what the witness testified to, in a condensed form; and that questions and answers shall only be included, when in the opinion of the trial court, they are necessary. 2. —Same—Case Stated. Where upon appeal from a conviction of murder in the second degree, the entire statement of facts was by questions and answers, and nothing appeared in the record that such statement of facts was brought within the rules contained in section 6 of the Act of the Thirtieth Legislature, p. 510, a motion to strike out, by the State, was well taken and sustained. 3. —Evidence—General Reputation of House—Bill of Exceptions. _ Where the bill of exceptions to testimony of the general reputation of the house where the homicide occurred as a house of prostitution, did not exclude all theories or matters upon which the testimony might be admissible, and there might have been circumstances readily conceivable that would justify its introduction, the same did not present a question for reversal; although as a general proposition, such testimony might not have been admissible. Following Gibson v. State, 23 Texas Crim. App., 414, and Villareal v. State, 26 Texas, 108. 4. —Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. .Where upon trial for murder the record disclosed that there were other witnesses than defendant and the main prosecuting witness to the homicide; or which other witnesses may have been so situated with reference to the parties engaged in the difficulty that they could have seen or known sufficiently of the evidence to have assisted defendant in his theory of self-defense, a remark by State’s counsel asking why defendant had not placed some witness oh the stand to establish his self-defense, was not reversible error; the court having excluded the remark from the jury. Following Reinhard v. State, 52 Texas Crim. Rep., 59.
53 Tex. Crim. 150Fox v. State (1908)
1.—Local Option—Statement of Facts—Official Stenographer—Question and Answers. The Act of the Twenty-ninth Legislature which- authorized a statement of facts to be made up by questions and answers applied only to those courts in which there was an official stenographer, and not to the county court. This law was amended by the Act of the Thirtieth Legislature, which repeals the provisions of the former law with reference to statement of facts in the form allowed under such former act. 2".—Same—Change of Venue—Misdemeanor. Under the statutes of Texas a change of venue is not authorized in a misdemeanor case. Following Halsell v. State, 29 Texas Grim. App., 22; Johnson v. State, 31 Texas Crim. Rep., 456. 3.—Same—Continuance. Where the application for continuance showed that the diligence to procure the attendance o£ the absent witnesses was manifestly insufficient, the same was correctly overruled. 4. —Same—Jury and Jury Law—Jury Commissioners. Where upon trial for the violation of the local option law, defendant moved to quash the jury panel, because the jury was summoned by jury commissioners who were prohibitionists and members of a law and order league, but no testimony was offered in support of this objection there was no error. Following Gravey v. State, 23 Texas Crim. App., 677. 5. —Same—City Charter and Ordinance—Legislative Power. A city under a special charter granted by the Legislature, is not exempted from the local option law adopted by the county for the entire county in which said city is situated, but is subject to the general local option laws as passed by the Legislature under the Constitution. Following Ex parte Elliott, 49 Texas Crim. Rep., 108. 6. —Same—Charge of Court—Alibi—Special Charge. Where upon trial of a violation of the local option law, the court correctly charged on Hie law of alibi, reasonable doubt and presumption of innocence, there was no error in refusing a special charge upon the same matter and on the subject of alibi. 7. —Same—Charge of Court—Internal Revenue License. Where upon trial of a violation of the local option law the court correctly charged that the issuance of internal revenue license was prima facie evidence that defendant was engaged in selling intoxicating liquors, there was no error. Following Uloth v. State, 48 Texas Crim. Rep., 295. 8. —Same—Misconduct of Jury. Where the question of misconduct of jury was made the matter of diligent inquiry by and under the direction of the trial court, and there was ample evidence to sustain the findings of said court that there was no such misconduct, the action of the trial court will not be disturbed. 9. —Same—Sufficiency of Evidence. Where upon trial for the violation of the local option law the verdict of conviction was amply supported by the evidence, the judgment of conviction was sustained. 10. —Same—Accomplice—Witness. Under tlie Act of the Legislature, March 30, 3887, it is izrovided that a person who purchases intoxicating liquor from a person who sells it in violation of Hie local option law, is not thereby constituted an accomplice. Overruling Steele v. State, 19 Texas Crim. App., 425.
53 Tex. Crim. 156Williams v. State (1908)
The opinion states the case.
53 Tex. Crim. 158Stepp v. State (1908)
The opinion states the case.
53 Tex. Crim. 162Ross v. State (1908)
1. —Local Option—Evidence—Unconnected Incident. Upon trial for a violation of the local option law, testimony of defendant’s witnesses on cross-examination by the State that they each had kept some whisky in a club-room, and that it had been siezed by the officers, was inadmissible. 2. —Same—Jury and Jury Law—Challenge for Cause. Where upon trial for a violation of the local option law, the record showed that some of the jurors who sat upon defendant’s case sat upon a former case in which he had been convicted and which practically involved the same facts as the case for which defendant was being tried, and that others who sat upon the case had heard the evidence in said former trial, and the challenge for cause on this ground was overruled and defendant exhausted his peremptory challenges. Held reversible error, although the jurors answered upon their voir dire that while they had a fixed opinion from the testimony they had heard as to the guilt or innocence of defendant, they could nevertheless give defendant a fair trial.
53 Tex. Crim. 165Sykes v. State (1908)
1. —Burglary—Continuance—Want of Diligence. Upon trial for burglary it was encumbent upon the defendant to show in his application for continuance with sufficient clearness and accuracy, the character of diligence which he used, including the nature and character of the process issued and the diligence used to obtain the service thereof, and where the application did not show this it was properly overruled. 2. —Same—Newly Discovered Evidence—Motion for New Trial. Where the motion for new trial was not verified, and did not name witnesses, by whom the alleged fads could be established, the matter of newly discovered evidence could not be considered upon appeal. 3. —Same—Argument of Counsel—Bill of Exceptions. Where upon appeal from a conviction of burglary, a bill of exceptions was not reserved to argument of State’s counsel the matter could not be considered.
53 Tex. Crim. 167Gillespie v. State (1908)
The opinion states the case.
53 Tex. Crim. 169Bryant v. State (1908)
Burglary—Insufficiency of Evidence. See opinion for evidence held to be insufficient to sustain a conviction of burglary.
53 Tex. Crim. 170Smith v. State (1908)
Theft—Charge of Court—Valuation in Gross. Where upon trial for theft, the indictment charged defendant with the theft of three hundred and forty pounds of brass, of the value of $70, and the evidence showed with sufficient clearness and accuracy that the same was of uniform value per pound, and that the aggregate number of pounds of the different pieces of brass -actually stolen, amounted to a certain value, under $50, and the jury found the defendant guilty of a misdemeanor, there was no error in the court’s refusal to charge the jury that it was necessary in order to convict that the State should prove that the entire amount in pounds of brass, was stolen as alleged, and that if a less amount was shown to acquit defendant. Following Moore v. State, 24 S. W. Rep., 900. Distinguishing Thompson v. State, 43 Texas, 268, and other cases. [Rehearing denied.—Reporter.]
53 Tex. Crim. 173Smitham v. State (1908)
local Option—Information—Publication—County Judge. In a prosecution for a violation of the local option law where the information alleged that the commissioners court published the order declaring the results of the election prohibiting the sale of intoxicating liquors, the same was bad on motion to quash. Following Carnes v. State, 50 Texas Crim. Rep., 282.
53 Tex. Crim. 174Criner v. State (1908)
1. —Burglary—Accomplice—Corroboration. Where upon trial for burglary the testimony of the accomplice was corroborated to the extent that defendant was seen near the burglarized house; that he was found in recent possession of a ring taken from the burglarized house, and which he tried to pawn; that he was connected with other stolen articles taken from said house; that he must have had guilty knowledge of and participated in the alleged offense, etc., the verdict will not be disturbed on appeal. 2. —Same—Charge of Court—Accomplice—Corroboration. Where upon trial for burglary the charge of the court upon accomplice testimony instructed the jury that a conviction could not be had upon the testimony of an accomplice even though fully believed to be true, this limitation must be held to apply to the entire charge on this subject, and was not a charge on the weight of the testimony. 3. —Same—Charge of Court—Weight of Evidence. Upon trial for burglary where the evidence showed that the defendant was near the scene of the burglary, and afterwards received from a codefendant some of the stolen goods, the court correctly charged that if said codefendant broke into the house without the presence of the defendant, and afterwards gave to him some of the property taken from the house, defendant could not be convicted even if he knew that his codefendant had stolen the property, and to acquit the defendant if he was not present at the time of the commission of the offense.
53 Tex. Crim. 178Worthington v. State (1908)
The opinion states the case.
53 Tex. Crim. 180Tippit v. State (1908)
1. —Local Option—Charge of Court—Sale. Where upon trial for a violation of the local option law, the evidence raised the issue of the elements of a sale, a requested charge on this subject should have been submitted to the jury. 2. —Same—Charge of Court—Gift. Where upon trial for a violation of the local option law, the evidence raised the issue of a gift, the matter should have been submitted on a proper charge, and the same should not have been complicated with the issue that the transaction was an evasion. 3. —Same—Charge of Court—Variance. Where upon trial for a violation of the local option law, the evidence raised the issue that if a sale was made, that it was to a different person than the one alleged in the indictment, the court should have submitted this issue.
53 Tex. Crim. 182Wylie v. State (1908)
1. —Carrying Pistol—Venue—Reasonable Doubt—County Line. It is not necessary to prove venue beyond a reasonable doubt in criminal cases; and where upon trial of unlawfully carrying a pistol it was shown that defendant carried a pistol within nine steps of a house situated in the county of the prosecution, the venue was sufficiently proved, although it might have been that the defendant was in the adjoining county, but within four hundred yards of the county line. 2. —Same—Question of Pact—Sufficiency of Evidence. Where upon trial for unlawfully carrying a pistol, some of the witnesses testified positively that they saw defendant with the pistol, and others testified positively that they were in equally favorable position to see, and that they did not observe the pistol, the issue was one of fact for the jury. 3.—Same—Charge of Court—Reasonable Doubt—Presumption of Innocence. Where upon trial for unlawfully carrying a pistol the court’s charge taken as a whole sufficiently instructed the jury upon the question of reasonable doubt and presumption of innocence, a criticism of the same on this ground was untenable, and thfere was no error
53 Tex. Crim. 184Wade v. State (1908)
1.—Local Option—Information—Precedent. Where upon trial for a violation of the local option law, the information followed approved form and precedent there was no error. Following Key v. State, 37 Texas Crim. Rep., 77. 3.—Same—Election—Words and Phrases. Upon trial for a violation of the local option law, there was nothing in the contention, that the order submitting prohibition used the word “whether” instead of the phrase, “whether or not.” 3. —Same—Elections—Subsequent Elections. Upon trial for a violation of the local option law, it was no defense that the first election upon which the complaint was based, was superseded by a subsequent election, which resulted in prohibition. Overruling Byrd v. State, 51 Texas Crim. Rep., 539; 19 Texas Ct. Rep., 300. Approving Massie v. State, 52 Texas Crim. Rep., 548. 4. —Same—Jury and Jury law—Challenge for Cause—Bills of Exception—Bystanders. Where upon appeal from a conviction for a violation of the local option law it appeared from the record that defendant’s objection to the jurors and his motion to quash the entire panel for the week, because they had sat in a companion case, was not borne out by the court’s explanation, to defendant’s bill of exceptions, the question could not be considered on appeal; defendant having made no effort to prove up his bills by bystanders. [Bchearing denied.—Beporter.j
53 Tex. Crim. 187Leonard v. State (1908)
1. —Theft—Bailment—Escape of Defendant Pending Appeal. Where upon appeal from a conviction of theft, the State filed a motion to dismiss the appeal on the ground that pending such appeal appellant had escaped from the custody of the sheriff, and had been recaptured and returned to jail; and appellant showed by affidavits that he escaped to make bond and had no intention to get away. Held, that in view that defendant was in custody, etc., the motion to dismiss is overruled. 2. —Same—Charge of Court—Evidence—General Reputation. Where upon trial for theft, the charge of the court fairly applied the law to the facts, and admitted evidence of defendant’s general reputation for honesty, there was no error; and the court properly excluded testimony, with reference to isolated acts of defendant showing such honesty. 3. —Same—Continuance—First Application—Diligence—Materiality of Testimony—Absence of Witness by Procurement of Defendant. Where upon trial for theft, defendant’s first application for continuance showed sufficient diligence; th,at the witness was not absent by his consent or procurement, and that the testimony was material, the motion should have been granted, although in the opinion of the trial court the witness was absent by the procurement of the defendant, the record being against such an opinion.
53 Tex. Crim. 192Starbeck v. State (1908)
The opinion states the case.
53 Tex. Crim. 195Brodie v. State (1908)
The opinion states the case.
53 Tex. Crim. 197MacKlin v. State (1908)
1. —Murder—Charge of Court—Murder in First Degree—Insanity. Where upon trial for murder the evidence showed a deliberate assassination, there was no error in the court’s failure to charge on murder in the second degree; the defense being insanity. 2. —Same—Change of Venue—Compurgators. Where upon trial for murder the application for a change of venue did not comply with the statutes by being supported by the affidavit of at least two credible persons, residents of the county of the prosecution, the same was insufficient, although supported by the affidavit of defendant alleging that the prejudice against him in said county was so great as not to insure him of a fair trial, etc.; the trial judge declining to grant a change of venue of his own motion. 3. —Same—Indictment—legal Holiday. An indictment otherwise legally returned will not be set aside or quashed for the sole reason that the same was returned on a legal holiday. Following Dunlap v. State, 9 Tex. Crim. App., 179. 4. —Same—Race Discrimination—Jury Commissioners. Where upon trial for murder the defendant raised the question of race discrimination against the negro race, etc., and the testimony showed that neither the judge nor the jury commissioners whom he appointed showed any such race discrimination in selecting the grand and petit juries, and that they did not leave off of the juries any person because he was a negro, defendant’s motion on this ground was properly overruled. Following Thomas v. State, 49 Texas Crim. Rep., 633 ; 95 S. W. Rep., 1069; Washington v. State, 51 Texas Crim. Rep., 542; 103 S. W. Rep., 879. 5. —Same—Jury and Jury Law—Special Venire—Practice. Upon trial for murder, in the examination of the jurors on their voir dire, there was no error to refuse a request that each venire-man should be examined in the absence and without the presence of the remaining venire-men; this was a matter for the discretion of the trial court. 6. —Same—Charge of Court—Murder in Second Degree. Where upon trial for murder, the evidence showed that the deceased was shot down by the defendant, while the former was sitting by his fireside unarmed, etc., there was no error in the court’s failure to charge on murder in the second degree. 7. —Same—Sufficiency of Evidence—Death Penalty. Where upon appeal from a conviction of murder in the first degree, assessing the death penalty, the record showed that every right of the appellant had been carefully guarded, the conviction will not be disturbed.
53 Tex. Crim. 202Battles v. State (1908)
1. —Rape—Charge of Court—Limitation. Where upon trial for rape the evidence suggested the issue of limitation, the court should have charged thereon. 2. —Same—Impeachment—Conspiracy. Where upon trial for rape, the mother of the prosecutrix was not placed on the witness stand by the State because she was insane at the time of the trial, there was no error in rejecting testimony for the defense that merely went to impeach her or affect her sanity or credibility and which was not germane to the case, or effected the testimony of prosecutrix, and which had no connection with the case, or showed a conspiracy. 3. —Same—Condition of Witness—Insanity. Where upon trial for rape, the State put under the rule a certain witness who was shown to be insane at the time of the trial, and of which the court and defendant’s counsel were duly notified by the State’s counsel, who refused to use her as a witness, there was no error. 4. —Same—Argument of Counsel. Upon trial for rape there was no error in sustaining the objections of the State to the argument of defendant’s counsel, who attempted to rehearse the facts of another rape case not on trial. 5. —Same—Misconduct of Jury. Where upon trial for rape the jury, after retiring to consider their verdict, discussed other charges of rape against the defendant upon prosecutrix as pending against defendant, and also discussed other questions not in evidence, such as the credibility of a certain witness based upon the knowledge of a juror, etc., there was reversible error. 6. —Same—Argument of Counsel. Upon trial for rape remarks of the State’s counsel that he knew that there were other acts of intercourse but he could not show but one, to which defendant’s counsel objected, the same was reversible error, although the court instructed the jury not to consider the same. 7. —Same—Evidence—Other Acts of Illicit Intercourse. Upon trial for rape, while it was inadmissible to prove other acts of illicit intercourse, it was permissible by the State to show undue familiarity between the defendant and prosecutrix, who was under age of consent; and to show the circumstances under which defendant and prosecutrix were thrown and associated together. 8.—Same—Argument of Counsel—Husband and Wife. Where upon trial for rape, the defendant had failed to- use his wife as a witness, there was no error in the State’s counsel’s comment on such failure.
53 Tex. Crim. 209Kauffman v. State (1908)
1. —Theft—Separate Property—Husband and Wife—Information. Where upon trial for the theft of a diamond ring, the ownership was laid in Mrs. B., a married woman, and the evidence showed that both husband and wife occupied the room from which the ring was taken which the wife had placed in her husband’s collar box; that the ring in question was the separate property of Mrs B., having been owned by her before her marriage; defendant’s contention that the ring was under the exclusive control of the husband was untenable, and the ownership was properly laid in the wife. Distinguishing Coombes v. State, 17 Texas Crim. App., 258; Miles v. State, 51 Texas Crim. Rep., 587; 103 S. W. Rep., 854. 2. —Same—letter—Charge of Court—Singling Out Testimony. Where upon trial for theft, a certain letter purporting to have been written by the defendant, to prosecutrix, in which he stated that he took the alleged ring, etc., and about which letter there was some conflict of testimony as to whether defendant was its author, etc., the court correctly refused a requested charge singling out the isolated fact as to whether the defendant wrote said letter and intended the same for the prosecutrix, and to acquit him in the event he did not do so. Following Gatlin v. State, 40 Texas Crim. Rep., 116; 49 S. W. Rep., 87.
53 Tex. Crim. 213Bush v. State (1908)
The opinion states the case.
53 Tex. Crim. 216Conway v. State (1908)
1.—Forgery—Circumstantial Evidence—Charge of Court. Where upon trial for forgery the evidence showed the circumstances in regard to the location of the parties at the time the note was alleged to have been signed, as well as comparison of handwriting, etc., there was no error to charge upon the law of circumstantial evidence, although it was perhaps unnecessary, and the same was not reversible error. 3.—Same—Motion for Postponement. Where upon trial for forgery the motion for new trial showed that defendant failed to make a motion for postponement when the case was called for trial, the same came too late, and could not be considered on appeal. 3. —Same—Newly Discovered Evidence. . Where in appellant’s motion for a new trial the affidavit of the alleged absent witness was not attached setting out the alleged newly discovered evidence, the same could not be considered on appeal. 4. —Same—Sufficiency of Evidence. Where upon appeal from a conviction of forgery the record showed that the evidence raised an. issue of fact for the jury, a conviction will not be disturbed.
53 Tex. Crim. 218Greathouse v. State (1908)
The following statement from the brief of the assistant attorney-general is substantially correct: The prosecuting witness, Ike Johnson, resided in Mineral Wells, in Palo Pinto County, and on December 15, 1907, a mule was taken from his lot, and- this mule was sold upon the public square in Decatur, Wise County, Texas, • to Mr. Miller, on December 18, 1907, by appellant in this case. Ike Johnson recovered his mule from Miller.
53 Tex. Crim. 220Maulding v. State (1908)
1. —Embezzelment—Statutes Construed—Conversion. Where in a prosecution the indictment charged embezzlement under article 938, Penal Code, and the court did not charge on embezzlement, but charged the law of theft by conversion under article 877, Penal Code, there was error. 2. —Same—Alibi—Charge of Court. Where in a prosecution for embezzlement the evidence suggested the issue of an alibi, but defendant did not ask a charge thereon, there was no error in the court’s failure to charge on alibi. 3. —Same—Accomplice—Corroboration—Insufficient Evidence. Upon a trial of embezzlement where the conviction depended upon accomplice testimony, and the same was .not sufficiently corroborated, the conviction could not be sustained.
53 Tex. Crim. 221Lamoyne v. State (1908)
1.—Swindling—Offense Defined—Statutes Construed—Value. Under articles 944, 946 and 949 Penal Code, it is not necessary in order to constitute the offense of swindling- that any benefit shall accrue to the person guilty of the fraud, or that any injury shall result to the person intended to be defrauded; and the grade of the offense must be fixed by the value of the property the possession of which is yielded up on such fraudulent representation at the time such representations were made. 2. —Same—Charge of Court—Felony—Misdemeanor. In a prosecution for swindling where the evidence showed that defendant’s representations with regard to the property upon which he obtained a lien in consideration for some machinery of the value of about $250, were false, and relied upon at the time by the person selling said machinery, the fact that the injured party did not suffer a loss of over $50 by the transaction, did not reduce the offense to a misdemeanor, if by means of false and deceitful pretences on the part of the defendant the injured party was induced thereby at the time they were made to part with $250 of property; however, the court’s charge on misdemeanor inuring to the benefit of the defendant he could not complain. 3. —Same—Marshaling Securities. Upon trial for swindling where the evidence showed that defendant had falsely represented the condition of his property upon which he obtained a lien in consideration of certain machinery of the value of $250, and that at the time of obtaining such lien other liens to other parties existed upon said property, the question as to whether the party from whom said machinery was obtained could have secured himself subsequently out of other property owned by the defendant after marshalling defendant’s various liens which he had given on said property could not be considered as a defense, and a charge thereon was correctly refused. Overruling Gaskins v. State, 38 S. W. Rep., 470; Perry v. State, 39 Texas Grim. Rep., 495; Lively v. State, 74 S. W. Rep., 321. Davidson, Presiding Judge, dissenting.
53 Tex. Crim. 240Ex Parte Cox (1908)
1.—Habeas Corpus—Hunting With Firearms in Enclosed Lands—Collateral Attack. % The county court being a court of general jurisdiction in misdemeanor cases, its judgments can not be collaterally attacked, and the writ of habeas corpus is not available for that purpose. Following Ex parte Call, 2 Texas Crim. App., 497, and other cases. Z.—Same—When Writ of Habeas Corpus is Available—Void and Voidable —Jurisdiction. It is only in cases where the judgment is absolutely void that the writ of habeas corpus is available, and not in cases where such judgment is voidable. Errors committed on the trial of the case do not render the judgment void, if the court has jurisdiction. 3. —Same—Appeal—Certiorari—Supersedeas. The writ of habeas corpus is not available as a means of effecting the purposes of an appeal, certiorari or supersedeas. Following Perry v. State, 41 Texas, 488, and other cases. 4. —Same—Sufficiency of Complaint. The writ of habeas corpus is not available to test the sufficiency of a complaint. Ex parte Beverly, 34 Texas Crim. Rep., 644. 5. —Same—Codification of Statutes. In the codification of the Statutes of 1895, the codifiers were instructed to bring forward only laws which were not repealed, and if previous Legislatures had repealed or amended any law, that they should bring forward the amendment and drop such repealed law. 6. —Same—Amendment of Penal Code—Codification. Where a penal statute, article 804, Penal Code, prohibiting hunting in enclosed land, was passed in 1885, and was amended in 1893, such amendment was brought forward by the codifying act, although the codifiers by mistake or otherwise, may have omitted said amendment, and an amendment of said article in 1903 would read as the act of 1893, and at all events, the last amendment was proper and is valid. 7. —Same—Void and Voidable—Defective Complaint. Where it was contended that the act of the Legislature in 1903, concerning hunting in enclosed lands, was void because of the fact that it purported to be an amendment of article 804, Penal Code of the Act of '1885, which had been amended in 1893, and was not an amendment of the Act of 1893, by reason of the codification of the Statutes, the writ of habeas corpus was not available, as any defects in the complaint caula not be considered in a proceeding for habeas corpus.
53 Tex. Crim. 243Ex Parte Anderson v. State (1908)
From Tarrant County. Original application for habeas corpus for release from arrest under a complaint filed in the corporation court of the City of Fort Worth charging relator with a violation of the garbage ordinance.
53 Tex. Crim. 246Holloway v. State (1908)
The opinion states the case.
53 Tex. Crim. 251Banton v. State (1908)
The opinion states the case.
53 Tex. Crim. 254Benson v. State (1907)
The opinion states the case.
53 Tex. Crim. 258Faulkner v. State (1908)
The opinion states the case.
53 Tex. Crim. 268Voight v. State (1908)
The opinion states the case.
53 Tex. Crim. 272Thomas v. State (1908)
1. —Murder—Murder in First Degree—Murder in Second Degree. Where a defendant who in attempting to kill another on express malice accidentally kills a third party, the offense is murder in the second degree. Following McCoy v. State, 25 Texas, 33 and other cases. 2. —Charge of Court—Express Malice—Implied Malice—Burden of Proof. Where upon trial for murder the evidence showed on the part of the State an assassination, and the defense was an accidental killing of deceased in self-defense against a third party, there was no error in the court’s charge that if they found from the evidence beyond a reasonable doubt that the killing was not upon express malice, but found that it was unlawful and intentional, to find defendant guilty of murder in the second degree, and did not shift the burden of proof. Approving White v. State, 23 Texas Crim. App., 154. 3. —Same—Charge of Court—Express Malice—Accidental Killing of a Third Party—Burden of Proof. Where upon trial for murder, the court charged the jury that if defendant upon express malice intended to kill one J., and in shooting at him, he accidentally and unintentionally shot and killed one, I., to find him guilty of murder in the second degree, and also properly charged the law of reasonable doubt, murder in the first and second degree and self-defense and manslaughter, there was no error; especially, where the jury found defendant guilty of murder in the first degree, which was warranted by the evidence. .
53 Tex. Crim. 277Ross v. State (1908)
Tried below before the Hon. W. H. Pope. Appeal from a conviction of an assault with intent to murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.
53 Tex. Crim. 280Oldham v. State (1908)
The opinion states the case.
53 Tex. Crim. 281Pratt v. State (1908)
1. —Murder—Evidence—Previous Difficulty—Animus. Where there are no eyewitnesses to the killing great latitude must be allowed the State in the introduction of testimony, to develop the relations existing between the parties; and upon trial for murder where the defendant relied upon threats and self-defense, the State had the right to inquire into a prior difficulty, which occurred between the parties a day or such matter before the homicide, to show the animus of the defendant, etc. 2. —Same—Evidence—Defendant’s Acts and Declarations. Where upon trial for murder, the declarations and statements of defendant introduced in evidence by the State went to the extent only that he had shot deceased, it was error to exclude the conversation between defendant and others made shortly after his first statement that he had killed deceased and which conversation gave the explanation, reasons, grounds and circumstances of the killing, and its justification; and this although defendant under the statute had the right to become a witness in his own behalf. Following Green v. State, 17 Texas Grim. App., 395. Brooks, Judge, dissents. 3. —Same—Evidence—Testimony on Former Trial—Death of Former Witness— Stenographic Report—Cross-Examination. Where upon trial for murder the State reproduced the testimony of a witness at a former trial, the witness having died since, in the form of a stenographic report of said witness’ testimony, consisting of questions and answers given on examination in chief, cross-examination and re-examination, after having proved the correctness of said stenographic report. Held, that this testimony was admissible, and it would make no difference by whom or under whose direction or examination, whether by the State or defendant, the testimony was elicited, as long as such testimony itself was not subject to a fair and just objection, and this although the testimony had been given orally upon the former trial. The reproduction of testimony is not confined to that given in an examining trial, or by depositions. Following Cox v. State, 28 Texas Grim. App., 92. Davidson, Presiding Judge, dissents. 4. —Same—Evidence—Undisclosed Motive of Deceased. Upon trial for murder it was error to admit testimony of the undisclosed motive of deceased in going to the place where the homicide occurred; it being in evidence that the deceased had threatened defendant the evening before the homicide that if defendant would come to said place (it being defendant’s store) the next morning deceased would break defendant’s neck with a club, and that when defendant did go there deceased approached him in an angry manner as if to carry out his threat. Following Adams v. State, 44 Texas Grim. Rep., 64; Johnson v. State, 22 Texas Grim. App., 206. 5. —Same—Evidence—Reputation of Witnesses. Where upon trial for murder, a witness for the defendant was contradicted by two of the State’s witnesses, and thereupon the defendant introduced witnesses by whom he proved the general good reputation for truth of his said witness, it was not competent for the State on cross-examination of defendant’s said witnesses to show the good reputation for truth of the State’s said two witnesses, by whom it had undertaken to contradict said defendant’s witness. Following Jackson v. Martin, 41 S. W. Rep., 837. G.—Same—Charge of Court—Relative Strength of Parties. Upon trial for murder where the court instructed the jury upon the law of self-defense as applied to the facts, there was no error in refusing special charges on the comparative strength of the parties, which authorized the defendant to assume that the deceased was so much stronger than he as to kill the latter without a weapon. 7. —Same—Charge of Court—Confessions. Upon trial for murder, there was no error in instructing the jury that when the admissions or confessions of a party are introduced in evidence by the State, then the whole of -the admissions or confessions are to be taken together, and the State is bound by them unless they are shown to be untrue by the evidence; and that they are to be taken into consideration in connection with the other facts and circumstances of the case. Following Pharr v. State, 7 Texas Grim. App., 472; Combs v. State, 52 Texas Grim. Rep., 613. 8. —Same—Argument of Counsel. See opinion suggesting the importance that counsel in all cases, should confine themselves to the record, in their argument to the jury.
53 Tex. Crim. 295Ross v. State (1908)
1.—Local Option—Indictment. Where upon trial for a violation of the local option law, the indictment followed approved precedent, there was no error. Following Massie v. State, 52 Texas Grim. Rep., 548. 3.—Same—Evidence—Other Transactions—Impeachment—Collateral Attack. Upon trial for a violation of the local option law, testimony on cross-examination of defendant’s witnesses that they had a bottle of whisky each, in what was termed the clubroom, at the time it was closed by the officers, and the contents thereof taken under a search warrant, was inadmissible, either as direct or impeaching testimony, as it was in no way connected with the offense charged. A party can not be impeached on collateral or irrelevant matter. 3. —Same—Charge of Court—Weight of Evidence, Where upon trial for a violation of the local option law, defendant testified in Ms own behalf and the State’s witness was a detective, the court’s charge that the jury were the exclusive judges of the facts proved and of the credibility of the witnesses, etc., and that the mere fact that any witness may be a Mred detective, or the defendant in the case, was not in itself sufficient to discredit him, but could be considered in testing the witness’ credibility, was on the weight of the evidence. Following Muely v. State, 31 Texas Grim. Rep., 155. 4. —Same—Accomplice—Charge of Court. The Legislature has provided that a conviction may be had upon the uncorroborated testimony of the purchaser of intoxicating liquor in local option territory.
53 Tex. Crim. 297Roberson v. State (1908)
1. —Rape—Charge of Court—Entirety of Charge. Where the court’s charge upon trial for rape, considered as an entirety, presents the law correctly, a criticism on an isolated part of the charge, will not be considered as a ground for reversal. 2. —Same—leading Questions—Unwilling Witness. Where upon trial for rape, the prosecutrix was under age of consent, being an unwilling witness, there was no error in permitting counsel for State to put leading questions to her. 3. —Same—Bill of Exceptions. Where the bill of exceptions did not state the answer or the expected answer of the witness, with reference to excluded testimony, the same can not be considered. 4. —Same—Motion for New Trial—Bill of Exceptions. Where upon trial for rape, the defendant objected to a question propounded to the jury by the court, but reserved no bill of exceptions to the action of the court, and the matter was not in any way verified, the same could not be considered on appeal. 5. —Same—Sufficiency of Evidence. Where upon trial for rape the evidence makes out a case, the same is sufficient to sustain a conviction.
53 Tex. Crim. 299Wade v. State (1908)
1. —local Option—Different Elections. Upon trial for a violation of the local option law, it was no defense that the election upon which the prosecution was based had been superseded and abrogated by a subsequent election; both elections resulting in prohibition. Following Massie v. State, 52 Texas Grim. Rep., 548. 2. —Same—Elections—Words and Phrases. Upon trial for a violation of the local option law, where the election was attacked, because in submitting the question to a vote the order of the commissioners court should have contained the words, “whether or not” the sale of intoxicating liquors should be prohibited” instead of using the word “whether,” there was no error. Following Wade v. State, 52 Texas Crim. Rep., 609. 3. —Same—Validity of Election—local Option Territory. Where upon trial for a violation of the local option law, the validity of the local option election in the county of the trial had been theretofore affirmed by the Court of Criminal Appeals, that question was settled.
53 Tex. Crim. 300Washington v. State (1908)
Tried below before the Hon. P. A. Turner. Appeal from a conviction-of theft from the person; penalty, two years imprisonment in the penitentiary.
53 Tex. Crim. 301Ex Parte Holland v. State (1908)
Habeas Corpus—Executive Warrant—Name of Relator—Idem Sonans. A bare discrepancy in the name of the relator in the executive warrant in extradition proceedings would not authorize this court to disregard the same; and it will be presumed in the absence of a statement of facts that the court below found the identity of relator upon sufficient evidence; besides the names in question are idem sonans.
53 Tex. Crim. 302Tippitt v. State (1908)
The opinion states the case.
53 Tex. Crim. 303Brown v. State (1908)
1. —Assault with Intent to Murder—Indictment—Injured Party. Upon trial for assault with intent to murder, where the indictment alleged the name of the injured party who was an unpardoned ex-convict, and who was not permitted to testify, and the evidence did not show as to what the name of the injured party was, the conviction could not be sustained. Following Young v. State, 30 Texas Grim. App., 308. 2. —Same—Name of Injured Party—Bill of Exceptions. Where upon trial for assault with intent to murder, the name of the assaulted party was not. proved as alleged, the bill of exceptions referring to the identification of said assaulted party, could not be considered on appeal.
53 Tex. Crim. 304Hall v. State (1908)
Local Option—Sufficiency of Evidence. Where upon trial for a violation of the local option law, the evidence clearly-raised the issue that the defense, that a stranger sold the liquor to defendant, and the latter delivered it to prosecutor, was a mere pretext and pretense, and the State’s case made out a sale by defendant, the verdict of conviction will not be disturbed. [Rehearing denied.—Reporter.]
53 Tex. Crim. 306Wagner v. State (1908)
1. —local Option—Evidence—Pacts Proved by Other Witnesses—Contemporaneous Pacts. Where upon trial for a violation of the local option law, the same facts as to possession of other whisky, to which defendant objected, were proved by other witnesses without objection, there was no error. Besides, the testimony was admissible to show that defendant was in possession of intoxicating liquors in such quantities as to raise a reasonable presumption that it was bought for sale and not for use; _such possession being contemporaneous with the alleged unlawful sale, which defendant denied. Qualifying Lane v. State, 50 Texas Crim. Rep., 335; Henderson v. State, 49 Texas Crim. Rep., 269; McKinley v. State, 52 Texas Crim. Rep., 182; Parish v. State, 48 Texas Crim. Rep., 578; Baughman v. State, 49 Texas Crim. Rep., 33. 2. —Same—Evidence—Refreshing Memory of Witness. Upon trial for violation of the local option law there was no error in permitting a State’s witness to examine a statement made by him before the grand jury, for the purpose of refreshing his recollection as to the date he was before the grand jury, and with a view of fixing definitely the time of the alleged sale. 3. —Same—Charge of Court—Date of Offense. Upon trial of a violation of the local option law, there was no error in refusing a special charge which limited the time in 'which the State must prove its case to a shorter time than the statutory period of two years prior to the presentment of the indictment, the court having correctly charged the law upon this issue.
53 Tex. Crim. 310Crawford v. State (1908)
Burglary—Statement of Facts—Bills of Exception—Affidavits. Where the motion and affidavits alleging reasons for failure to file statement of facts and bills of exception did not show any diligence why the same were not filed in time, the same cannot be considered on appeal.
53 Tex. Crim. 311Drennan v. State (1908)
1. —Assault to Murder—Conflict of Testimony—Question of Fact. Where upon trial for assault with intent to murder the evidence showed on part of the State that during an altercation between the assaulted party and another, the defendant ran up and stabbed the assaulted party; and the theory of the defense was that defendant did not do the stabbing, the issue was one of fact, and the conviction will not be disturbed. 2. —Same—Evidence—Bill of Exceptions. Where a bill of exceptions to testimony offered by the defense is accepted by the defendant as qualified by the court, and the same presents no injurious matter to the rights of the defendant, no issue is raised thereby. * 3. —Same—Evidence—Impeaching Witness. Where a person has not been introduced by the State as a witness, a witness by the defendant could not be examined as to statements made by said person to said defendant’s witness; and where the object and purpose of such testimony was not set out in the bill of exceptions it could not be considered on appeal. 4. —Same—Evidence—Bill of Exceptions. Upon trial for assault with intent to murder, where defendant offered to prove that the prosecutor asked him to swear that defendant had cut him because said prosecutor’s employer said so, etc., and the object and purpose of such testimony is not set forth in the bill of exceptions, and the court qualifies the same that no such transaction took place on the trial of the case, and the bill is thus accepted by the defendant, no issue is raised on appeal. 5. —Same—Argument of Counsel—Bill of Exceptions. Where defendant objected to the argument of counsel because the State’s counsel told the jury that he could prove the seriousness of the wound of the assaulted party by a certain absent witness, etc., and the bill of exceptions as signed by the court showed that the district attorney did not use such language, no issue was raised on appeal. 6. —Same—Impeachment—Newly Discovered Evidence—Motion for a New Trial —Bill of Exceptions. A bill of exceptions reserved to the order of the court overruling a motion for new trial does not verify or add any strength to anything contained in the motion; and such motion will not be granted on the ground that newly discovered testimony is impeaching in its character. 7. —Same—Motion for New Trial—Attack Upon Verdict. Upon appeal from a conviction of assault with intent to murder, a motion for new trial which set out that, some of the jurors who tried appellant stated that if certain testimony of an impeaching character and alleged to be newly discovered had been before them, they would not have been in favor of sending appellant to the penitentiary, cannot be considered on appeal to attack the verdict. 8. —Same—Bill of Exceptions by Bystanders. Where upon appeal from a conviction from an assault with intent to murder the record showed that the appellant accepted the bills of exception reserved to the evidence offered by appellant and rejected by the court, as qualified by the court, he could not controvert the same by bills proved by bystanders; besides the rejected testimony affecting a person not introduced by either party would not constitute reversible error. 9. —Same—Bills of Exception—Practice on Appeal. Upon an appeal from a conviction of assault with intent to murder, the appellant’s counsel will not be permitted to attack bills of exception in the record which appear therein to have been accepted by him, by an affidavit that he did not see these bills as presented to the trial judge and the State’s counsel until after they were filed by the clerk under a twenty-day order; and affidavits attacking the failure to procure statements of facts and bills of exception to be filed are confined to the question of diligence in securing their approval and having them filed, and more than ordinary diligence must be shown.
53 Tex. Crim. 316Pruitt v. State (1908)
1. —Gaming—Banking Game—Monte—Charge of Court. Where upon trial for unlawfully betting at a gaming bank, the evidence showed that defendant and others played at a game called monte, and the court charged that if defendant bet at a gaming table or bank he would be guilty, and that monte is a banking game, there was no error. 2. —Same—Continuance—Alibi. Where upon trial for betting at a game called monte defendant’s application for continuance showed no diligence in securing the attendance of the absent witness the same was correctly overruled. 3. —Same—Venue—County Line. Where upon trial for betting at a game of monte the evidence showed that the offense 'occurred about one hundred and fifty or two hundred yards from the county line of the county of the prosecution, the court correctly charged that if the offense occurred more than four hundred yards beyond said county line to acquit. 4. —Same—Date of Offense. Where upon trial for betting at a game of monte the evidence was uncertain as to whether the offense charged in the information was committed at a time anterior to the filing of the affidavit and information, the conviction could not be sustained. Following Zollicoffer v. State, 43 S. W. Rep., 992.
53 Tex. Crim. 319Harless v. State (1908)
Resisting Arrest—Information—Statutes Construed—Warrant. Where upon trial for resisting arrest, under article 236, Penal Code, the complaint and information failed to allege whether the arrest was being made by virtue of a warrant or without a warrant, the same was insufficient; and an allegation that the party sought to be arrested was drunk in a public place in the presence of an officer was not sufficient.
53 Tex. Crim. 320Keye v. State (1908)
The opinion states the case.
53 Tex. Crim. 323Penton v. State (1908)
The opinion states the case.
53 Tex. Crim. 324Bagley v. State (1908)
Theft of Horse—Argument of Counsel—Defendant’s Failure to Testify. Upon trial for theft of a horse, where the State’s counsel alluded to defendant’s failure to place a certain witness on the stand, bearing on the ■ testimony of another witness, the same was not an allusion to defendant’s failure .to testify.
53 Tex. Crim. 325Nixon v. State (1908)
1. —Murder—Evidence—Examining Trial Testimony—Confronting-Witnesses. Where a defendant charged with crime has had an examining trial, duly held, being confronted with the witnesses against him, and has had the right to the opportunity of cross-examination, the testimony so given and properly authenticated, may, in the event of the death of such witness or his removal beyond the jurisdiction of the court, be received against him. Following Black v. State, 1 Texas Grim. App., 368; Dowd v. State, 52 Texas Grim. Rep., 563; 108 S. W. Rep., 389. 2. —Same—Predicate. Before the testimony of an examining trial can be introduced in evidence a proper predicate must be laid. 3. —Same—Case Stated. Where upon trial for murder, the examining-trial testimony of a witness beyond the jurisdiction of the court was introduced in evidence over the objections of the defendant, and said testimony did not distinctly show whether the defendant was present at the time it was taken; or that it was given at an examining trial or at an inquest; that the defendant waived examination by agreement; and that it was not distinctly shown whether said absent witness was beyond the jurisdiction of the court, said examining-trial testimony, being of a damaging character to defendant, was inadmissible, and its admission was reversible error.
53 Tex. Crim. 329Tolliver v. State (1908)
1. —Murder—Evidence—Bill of Exceptions. Where upon trial for murder the defendant objected to the introduction in evidence of a double-barrel shotgun with a broken stock, as immaterial, and the record showed that said testimony illustrated the, facts in the, case, there was no error; besides the matter was not sufficiently explained in the bill of exceptions. 2. —Same—Charge of Court—Defense of Property. Where upon trial for murder the evidence showed that if there was any dispute about property it had long ceased to exist at the time, of the homicide, there was no error in refusing defendant’s charge on the theory of defense of property. Following Lynch v. State, 24 Texas Crim. App., 330; Bush v. State, 40 Texas Crim. Rep., 539.
53 Tex. Crim. 332Scott v. State (1908)
1. —Burglary—Possession of Property Recently Stolen. Where upon trial for burglary the evidence showed that the alleged house had been burglarized and the property taken therefrom found in the possession of the defendant soon thereafter, the evidence was sufficient to sustain the conviction. 2. —Same—Charge of Court—Reasonable Explanation. Where upon trial for burglary, the court charged the jury that if the defendant got the alleged stolen property from some other person to acquit him, which charge was applicable to the issue raised by the defendant’s testimony that the property had been turned over to him, etc., the same was sufficient on the question of reasonable explanation of possession of the property. 3. —Same—Accomplice—Charge of Court. Where upon trial for burglary, the record showed on appeal that defendant pawned the property, and that the State’s witness who testified to this fact was simply an employee of the pawnshop, and there was nothing to show that witness knew at the time, that he was receiving stolen property, the court correctly failed to charge on accomplice testimony.
53 Tex. Crim. 334Person v. State (1908)
The opinion states the case.
53 Tex. Crim. 336Walker v. State (1908)
1. —Burglary—Continuance—Bill of Exceptions. Where upon appeal there was nothing in the record to indicate that an application for continuance was made, or bill of exceptions reserved, except a statement in the motion for new trial that such a motion had been made, the same could not be considered on appeal. 2. —Same—Age of the Defendant—Reformatory. Where upon trial for burglary the evidence showed that the defendant was beyond the age of sixteen years at the time of the trial, the court did not err in failing to instruct in regard to defendant’s age, and the option of the jury to send him to the reformatory. 3. —Same—Confessions—Practice in District Court. Where upon trial for burglary the defendant’s written confessions were introduced in evidence, he could not raise objection to this testimony for the first time on motion for new trial, but should have interposed his objections at the time the confessions were offered in evidence.
53 Tex. Crim. 338Rusk v. State (1908)
1. —Bape—Insanity—Charge of Court. Where upon trial for rape, there was some suggestion in the record that the defendant was insane or of very weak mind, the court charged that the jury must believe beyond a reasonable doubt that at the time of the commission of the act by the defendant he was of that degree of mental soundness that would enable him to 'realize that his act was wrong, and to apprise him of the probable consequences thereof, otherwise to acquit the defendant; he could not complain and there was no error. 2. —Same—Sufficiency of the Evidence. Where upon trial for rape the evidence showed that the defendant was a young boy, and the prosecutrix a very old woman, but her testimony proved the offense and was substantially uncontradicted, the verdict will not be disturbed.
53 Tex. Crim. 339Johnson v. State (1908)
1. —Xocal Option—Elections—Evidence. Upon trial for a violation of the local option law, where the defendant offered testimony that the election upon which the information was based had been superseded and abrogated by a subsequent election which also resulted in prohibition, which testimony was rejected by the court. Held, there was no error. Following Massie v. State, 52 Texas Grim. Itep., 548; 107 S. W. Rep., 846. 2. —Same—Misconduct of Jury—Defendant’s Failure to Testify—Practice in County Court. Upon trial for a violation of the local option law, where the defendant in his motion for new trial set up the misconduct of the jury in alluding to defendant’s failure to testify in their deliberations, and asked that the jurors be sworn as witnesses and placed under the rule, but the court caused them to be sworn and placed in the jury box and examined as witnesses, and but one juror testified that he believed there was something said about it, but did not remember what it was; and another juror testified that he did not remember that anything » was said about defendant’s failure to testify, but that he himself thought about it; and ajl of the jurors testified that if anything was said about this that it had no influence upon their verdict, there was no reversible error. Following Smith v. State, 52 Texas Crim. Rep., 344; 106 S. W. Rep., 1161.
53 Tex. Crim. 341Anderson v. State (1908)
1. —Murder—Continuance—Want of Diligence. Where upon trial for murder defendant’s application for continuance was based upon the testimony of a witness who was a fugitive from justice, whose whereabouts were unknown to the defendant and the officers; and who could not have testified to anything material for the defendant, the same was correctly overruled. 2. —Same-—Copy of Indictment—Sheriff’s Return. Where upon trial for murder the defendant moved to quash the sheriff’s return on the precept issued to serve a copy of the indictment, and the record showed that the sheriff had made a clerical error in his return of the number of the indictment, but that in truth and in fact he served the defendant with the true copy of the indictment upon which lie was tried, there was no error. 3. —Same—Evidence—Circumstances. Where upon trial for murder, the evidence was to some extent circumstantial, there was no error to admit testimony that the defendant bought some gun shells a week or two before the homicide; it. being shown that shells of the same kind were found on the ground near the scene of the homicide on the next morning. 4. —Same—Evidence—Motive—Acts of Intimacy. Upon trial for murder where the theory of the State was that undue intimacy existed between the defendant and his female codefendant; that they were infatuated with One., another; that the deceased was the husband of said codefendant, and that this infatuation was the motive for the murder, there was no error in admitting testimony with reference to the association and conduct of defendant and the said codefendant, while together shortly before the homicide. Following Dill v. State, 1 Texas Grim. App., 278, and other cases. 5. —Same—Evidence—Child-Witness—Obligation of Oath—Discretion of Court. Where upon trial for murder, the record showed that while the witness, who was fourteen years of age, may not have understood the technical meaning of the obligation of an oath, yet altogether it was shown beyond all doubt the witness thoroughly understood the nature and quality of the truth as it differs from falsehood, her liability to punishment by the courts, and her moral responsibility and the binding effect of an oath on her conscience, there was no error in overruling the objection that the witness did not understand the obligation of an oath. Following McCormick v. State, 52 Texas Grim. Rep., 493. 6. —Same—Evidence—Intimidating Witness. Where upon trial for murder the defendant objected to a State’s witness testifying in the case because the sheriff had threatened to lock her up 'if she did not testify, such reason would not disqualify the witness from testifying but would simply effect her credibility; besides she was urged by the defendants not to divulge what she knew. 7. —Same—Charge of Court—Defendant as a Witness. Upon trial for murder where the court charged that it is not incumbent on a defendant in a criminal case to testify in his own behalf, and a failure to do so is not even a circumstance against him, and no presumption of guilt can be indulged in by the jury on account of such failure on his part; and that such failure on the part of the defendant to testify cannot be considered for any purpose by the jury, there was no error. Following Leslie v. State, 49 S. W. Rep., 73. 8. —Same—Sufficiency of the Evidence—Death Penalty. Where upon trial for murder in which the death penalty was inflicted, the evidence if true showed defendant’s guilt, and which was sufficient, to sustain the finding of the jury, and the sanction and approval of the trial court, the verdict will not be disturbed.
53 Tex. Crim. 349Gibson v. State (1908)
The opinion states the case.
53 Tex. Crim. 373Davis v. State (1908)
The opinion states the case.
53 Tex. Crim. 375Lynne v. State (1908)
The opinion states the case.
53 Tex. Crim. 378Howard v. State (1908)
1. —Murder—Statement of Facts—Time of Filing—Erasures. Where upon appeal from a conviction of murder, the appellant claimed that certain erasures and changes had been made in the statement of facts without his knowledge and consent, and that it was not made up in compliance with sections 6 and 14 of the Act of the Thirtieth Legislature. Held, that said act with reference to time of tendering statement of facts to attorneys is directory, and that a statement of facts bearing the agreement of both parties to the record, approved by the court and filed within time will not be stricken from the record in the absence of fraud or manifest unfairness. 2. —Same—Charge of Court—Burden of Proof—Presumption of Innocence. Where upon trial for murder, the court charged on the presumption of innocence and reasonable doubt to every issuable question, a criticism on that ground • was untenable. 3. —Same—Charge of Court—Retreat—Charge as Entirety. Where upon trial for murder the evidence raised the issue, that the deceased had abandoned the difficulty, and that defendant returned to where deceased was, and without any hostile act on the part of the latter shot and killed him, there was no error in the court’s charge, in submitting the issue of self-defense, that defendant would not be justified in killing deceased if at the time he was out of danger and without reasonable ground to apprehend other injury from deceased; considered in the light of the whole charge, and where the court’s charge taken as an entirety correctly applied the law to the facts. Following Garner v. State, 34 Texas Grim. Rep., 356. 4. —Same—Evidence—Animus of Deceased. Upon trial for murder the court correctly refused to admit testimony that defendant had furnished information to the officials as to violations of the law by deceased; besides this matter was testified to by other witnesses. 5. —Same—Evidence—Opinion of Witness. Upon trial for murder there was no error in the court’s refusal to admit the opinion of a witness who had been counsel for defendant’s witness, to the effect that in his opinion there was no foundation for the charges preferred against said witness; and to enter into an investigation of the merits of these charges. 6. —Same—Argument of Counsel. Upon trial for murder there was no error in the State counsel’s argument, to the effect that the time had come to put a stop to murder in the county of the prosecution, and if the jury turned defendant aloose it would be a disgrace to their civilization, and they should not establish such a precedent in said county; that with such a man loose their lives as citizens would not be safe; this being a deduction from the facts. 7. —Same—Sufficiency óf the Evidence. Where upon trial for murder the evidence was conflicting, and there was much testimony upon whjeh a verdict for manslaughter could have been found; yet there was other testimony sustaining a verdict of murder in the second degree, the same will not be disturbed.
53 Tex. Crim. 386Lynne v. State (1908)
1. —Burglary—Evidence—Stolen Property. Where upon trial for burglary the case was one of circumstantial evidence, there was no error in admitting testimony with reference to property found in defendant’s possession, part of which was taken from the burglarized store. 2. —Same—Charge of Court. Where upon trial for burglary the evidence tended to show that the defendant entered the house and was found in possession of some of the property taken therefrom, there was no error in refusing special charges that the jury should not consider the taking of these articles.
53 Tex. Crim. 388Franklin v. State (1908)
The opinion states the case.
53 Tex. Crim. 390Innocente v. State (1908)
1. —Rape—Indictment—Deliberations of Grand Jury—Grand Jury—Householder—Freeholder. Where upon trial for rape there was no evidence in the record on appeal upon the questions set out in appellant’s motion to quash the indictment on the grounds that the grand jury who returned it was not legally organized, and that one of the grand jurors was not a freeholder or a householder; that a person not authorized was in the grand jury room when they were deliberating, etc., the same could not be considered on appeal. 2. —Same—Exceptions to Grand Jury. Where defendant does not bring himself within the statute which authorizes prisoners in jail or in confinement to be brought into court in order that they may challenge either the panel or any particular grand juror, there was no error. 3. —Sainé—Argument of Counsel. Where upon appeal from a conviction of rape the bill of exceptions to the argument of the State’s counsel did not contain the question at issue, or how it would have affected the appellant, the same cannot be considered as a ground for reversal. 4. —Same—Conduct of Officers—Bill of Exceptions. Where upon trial for rape the motion for new trial complained of the sheriff and his deputies in prompting and suggesting questions to the district attorney to ask the witnesses, etc., and there was no bill of exceptions or any verification as to such conduct by the officers, the same could not be considered on appeal. 6.—Same—Defendant’s Right of Representation by Attorney. Where the complaint set out in a motion for new trial that the appellant was not properly represented by counsel, is not in any way verified by the record on appeal, the same could not be considered.
53 Tex. Crim. 393Deaton v. State (1908)
Using Abusive language—Trespass—Justification—Size of Parties. Under article 599, Penal Code, the contention of the defendant that he used the abusive language while acting in defense of his property was no justification or excuse for the use of violent and abusive language; neither was the relative size of the parties legitimate evidence in the case.
53 Tex. Crim. 395Curlee v. State (1908)
The opinion states the case.
53 Tex. Crim. 396Williams v. State (1908)
The State’s testimony shows that the defendant and his companion were caught in the act of befouling the floor of prosecutor’s vacant house; that they were jointly prosecuted and convicted in the justice court, the defendant appealing his case to the County Court, and his companion turning State’s evidence.
53 Tex. Crim. 400Richards v. State (1908)
1. —Murder—Evidence—Conspiracy—Acquittal of Co-conspirator. Where the substantive crime charged is murder or some other distinct offense, and not a charge of the substantive crime of conspiracy, the declarations and admissions of a co-conspirator are admissible in evidence, whether said co-conspirator had been acquitted or convicted, a predicate having been laid and such declarations being otherwise admissible. 2. —Same—Case Stated—Husband and Wife. Where upon trial for murder, the theory of the State was that the defendant, his wife and another party had entered into a conspiracy to kill the deceased, and there was sufficient testimony on the part of the State to submit this issue under proper instructions to the jury, and that they could not consider the acts or declarations of the co-conspirator made in the absence of the defendant unless such conspiracy had first been established by independent testimony; the fact that the defendant’s wife had been jointly indicted with him and the other party for said murder* and previously acquitted would not render her declarations to said co-conspirator, in the absence of her husband, inadmissible in the trial of the husband for said murder. 3. —Same—Evidence—Husband and Wife—Cross-Examination—Insulting Conduct to Eemale Relative. Where upon trial for murder, the defendant introduced his wife as a witness, who testified to a single act of carnal intercourse between herself and the deceased at a certain time and place and which she claimed was against her will, and that she communicated this matter to her husband about a week before the homicide, and which the defense assigned as the motive of the killing of deceased, it was reversible error upon cross-examination to compel the witness to testify to subsequent misconduct, acts of intimacy and acts of sexual intercourse between the witness and deceased. Following Jones v. State, 51 Texas Crim. Rep., 472, and other cases. 4. —Same—Charge of Court—Character of Deceased. Where upon trial for murder, there was no evidence of what the character and disposition of deceased were, and little if any evidence of defendant’s knowledge of the same, at least within recent years, the court’s charge on self-defense, which based the same on defendant’s knowledge of the character and disposition of the deceased, and qualified the defendant’s right to self-defense by this knowledge, was error. Following Dickey v. State, 45 Texas Crim. Rep., 297. 5. —Same—Charge of Court—Adequate Cause—Self-Defense. Where upon trial for murder the defendant relied on present adultery between his wife and the deceased as justification for the homicide, and also on proof of previous carnal intercourse between these parties to reduce the homicide to manslaughter, and the court’s charge possibly confused the same by instructing the jury that if 1he killing occurred as soon as the fact of illicit intercourse was discovered or communicated to the husband, it would be adequate cause, etc., the same was objectionable and misleading in that fornb 6.—Same—Charge of Court.—Adequate Cause. Upon trial for murder where previous sexual intercourse was interposed to reduce the homicide lo manslaughter, a charge of the court that when adultery is an issue, etc., and though a mistake as to the fact of adultery may possibly exist, etc., the same was misleading, too restrictive and placed a greater burden upon defendant than the law authorized.
53 Tex. Crim. 416Young v. State (1908)
The opinion states the case.
53 Tex. Crim. 422Cohen v. State (1908)
That Will Scott followed the business of selling cigars, uno, soda water, and other cold drinks, and of running pool tables, and billiard tables; that he had been in this business a year or more; that two of the witnesses, Vogel and Massengale, had kept intoxicating liquors at Will Scott’s place of business; that the way they came to keep such liquors at Scott’s place of business was that they would get him to order the liquor for them, and when so ordered, the liquor would come to his place of business for delivery, and that when it came, they would sometimes take it away from his place of business, and sometimes leave it there, just as it suited their convenience; that Will Scott never charged anything for the keeping of such liquors, that nothing was ever paid or promised him, or any one else, directly or indirectly, for the privilege of so leaving such liquors at his said place; that when the order for the liquor was made through Will Scott, he did not promise or agree to keep or store the liquors in his place of business when it should come, that the privilege of keeping the liquors in his place of business was no part or condition of the contract in ordering the liquor, and that the liquor was left in his place of business not by any agreement or understanding; that Will Scott was not under any obligation to allow the liquor to be so kept in his place of business, and that if he had refused to allow the liquor to be left there, he would not have violated any agreement or understanding had or entered into at the time the liquor was ordered; that the privilege of leaving the liquor at Will .Scott’s place of business was simply an accommodation extended by him; that the orders for the liquor were sent to Lemon & Hughes, a firm of retail saloon dealers, at Rosebud, Texas; that, ordered in this way,-the liquor cost the purchasers thereof exactly the same as it retails for at all saloons, and that which was left in Will Scott’s place of business cost exactly the same as that which was taken away; that a number of people kept liquor in Will Scott’s place of business, and there was considerable drinking in there; that when the liquor was kept in Will Scott’s place of business, and the owner of it wished to take a drink, sometimes the defendant or Will Scott would hand him the liquor, but usually the owner would get the liquor himself; that liquor bottles are saleable, that when those who kept liquor at Will Scott’s place of business emptied bottles in there, the bottles were left in there, but that such bottles were simply thrown down in there, because they were considered so much junk, and that neither the defendant nor Will Scott requested that the bottles be left in there, nor otherwise referred to the bottles; that when beer was left in Will Scott’s place of business it was placed in the ice box and kept cool; that Will Scott kept ice and an ice box for cooling his ino, uno and soda water, and that the beer was placed in this ice box; that Will Scott kept ice and an ice box and would have kept them whether any one left beer there or not; that nothing appeared to be hidden or concealed from the officers about the manner or method of Will Scott’s business; that the witness Johnson had seen Will Scott moving a considerable number of bottles from his place of business, which the witness supposed to be partly uno and ino bottles and partly beer bottles, but did not know whether they were all uno and ino bottles or not; that none of the witnesses ever knew or heard of Will Scott or the defendant making any charge for keeping liquors in said place of business.
53 Tex. Crim. 428Price v. State (1898)
Tried below before the Hon. Victor L. Brooks. Appeal from a conviction of assault with intent to murder; penalty, fifteen years imprisonment in the penitentiary.
53 Tex. Crim. 430Gonzales v. State (1908)
The opinion states the case.
53 Tex. Crim. 432Beaty v. State (1908)
The opinion states the case.
53 Tex. Crim. 436Wilson v. State (1908)
Murder—Newly Discovered Evidence—New Trial. Where upon trial for murder, the evidence showed a poisoning by means of carbolic acid, and the theory of the State was that the poison was administered to deceased by defendant, and the motion for new trial setting up newly discovered evidence showed the want of knowledge on the part of the defendant of such testimony, that the same was material in showing that the deceased had made suicidal attempts with carbolic acid, etc., and the affidavit of the main State’s witness attached to said motion, showed that she was coerced to give the testimony against the defendant on the trial, and that she believed that the defendant had not killed deceased, a new trial should have been awarded.
53 Tex. Crim. 439Snowden v. State (1908)
The opinion states the case.
53 Tex. Crim. 443Barton v. State (1908)
The opinion states the case.
53 Tex. Crim. 449Schwartz v. State (1908)
The opinion states the case.
53 Tex. Crim. 452Maxfield v. State (1908)
The opinion states the case.
53 Tex. Crim. 454Huff v. State (1908)
The opinion states the case.
53 Tex. Crim. 458Marsden v. State (1908)
The opinion states the case.
53 Tex. Crim. 459Lackey v. State (1908)
The opinion states the case.
53 Tex. Crim. 461Stacy v. State (1908)
1. —Murder—Evidence—B.elative Position of Parties. Where upon trial for murder, the theory of Ihe State was that defendant went to the mill of the deceased and provoked a difficulty, and that of the defendant that he shot deceased while he was advancing upon him with a king bolt, there was no error in admitting testimony that when defendant came up to the mill, deceased had stooped down and was trying to get the king bolt to fit on a wagon, and that when defendant spoke to deceased, the latter turned around and had this king bolt in his hand. This simply illustrated the situation of the parties. 2. —Same—Evidence—Cross-Examination. Where upon trial for murder the defense had brought out testimony with reference to a previous quarrel between the children of the defendant and the deceased, which quarrel seems to have led to the difficulty, there was no error in permitting the State on cross-examination to inquire into the particulars and details of this controversy; besides the court charged the jury that if the defendant believed that the deceased or his son had mistreated the children of the defendant it made no difference whether this was true or not. 3. —Same—Charge of Court—Imperfect Self-Defense. Where upon trial for murder the contention of the State was that the defendant sought the deceased to provoke a difficulty, and that of the defendant was that he sought the deceased for a peaceable understanding of the difficulties which arose from a misunderstanding between the children of the parties, and especially that between the deceased and the defendant’s son, and the court in submitting this issue required the jury to find beyond a reasonable doubt that defendant had been informed of the mistreatment of his son before he would have any right even to peaceably go to the deceased for the purpose of talking over the situation with a view of adjustment, the same was reversible error.
53 Tex. Crim. 465Schmidt v. State (1908)
Local Option—Beer—Intoxicating Liquors. Whez-e upon tz-ial of a violation of the local option law the evidence showed that the defendant sold a bottle of Schlitz beer and that the same was intoxicating, and the issue of intoxicating liquor was properly submitted in the court’s charge, the conviction will not be disturbed.
53 Tex. Crim. 466Green v. State (1908)
The opinion states the case.
53 Tex. Crim. 466Ex Parte Cabrera (1908)
The opinion states the case.
53 Tex. Crim. 468Hernandez v. State (1908)
The opinion states the case.
53 Tex. Crim. 470Jones v. State (1908)
Attempt to Commit Burglary—Indictment. Where the indictment charged defendant with attempting to break and enter the house with intent to commit the crime of theft, etc., the same was sufficient, and a general exception that it did not set out the facts, etc., was correctly overruled.
53 Tex. Crim. 471Goodfellow v. State (1908)
The opinion states the case.
53 Tex. Crim. 473Green v. State (1908)
The opinion states the case.
53 Tex. Crim. 474Harryman v. State (1908)
1. —Local Option—Publication—Certificate—Orders—Evidence. Where upon trial óf a violation of the local option law, the certificate of publication stated in express terms that the publication was made for the time and in the manner required by law; that it was made in a weekly newspaper in the county affected, naming the newspaper, as designated by the county judge, the same was sufficient and admissible in evidence, without stating that the publication was for four successive weeks. Such certificate must be construed in the light of other records and_ the facts in the case. 2. —Same—Charge of Court—Presumption. Where upon trial of a violation of the local option law it appeared that publication was made as provided by law, the court correctly charged the jury that the sale of intoxicating liquors was at the time of said offense prohibited in said county. 3. —Same—Sufficiency of Evidence. Where upon trial of a violation of the local option law the evidence was conflicting,- a conviction will not be set aside.
53 Tex. Crim. 478Rhone v. State (1908)
1. —Local Option—Information. Where upon trial of a violation of the local option law the information followed approved precedent, there was no error. 2. —Same—Publication—Certificate and Entry. Where upon trial of a violátion of the local option law, the entry of the county judge with reference to the publication of the order to put local option in force disclosed the fact that the order of the commissioner’s court was made in a newspaper, naming the newspaper; that it was a weekly newspaper, and that the publication occurred in that paper for the time and in the manner required by law, the same was sufficient, and admissible in evidence. Distinguishing Ladwig v. State, 40 Texas Crim. Rep., 585.
53 Tex. Crim. 480Washington v. State (1908)
Tried below before the Hon. J. K. P. Gillaspie. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life.
53 Tex. Crim. 484Jolly v. State (1908)
The opinion states the case.
53 Tex. Crim. 485Piper v. State (1908)
The opinion states the case.
53 Tex. Crim. 486Hightower v. State (1908)
1.—Assault to Murder—Evidence—Irrelevant Testimony. Where upon trial for assault with intent to murder, the testimony showed that the defendant had separated from his wife; that he went where his wife was to see his child, and took it in his arms to carry it away, which his wife endeavored to prevent; testimony that he had been married several times before he married his last wife, and had been divorced or separated from said previous wives, was inadmissible. 2.—Same—Charge of Court—Grouping Facts—Adequate Cause. Upon trial for assault with intent to murder, where the court in charging upon aggravated assault attempted to group the facts upon which the issue of manslaughter was predicated, and practically instructed the jury that they would have to believe all the circumstances before defendant would be entitled to a verdict of aggravated assault, the same was reversible error.
53 Tex. Crim. 489Huffman v. State (1908)
Malicious Mischief—Killing Cattle—Intent to Injure—Charge of Court. Where upon trial for maliciously-killing cattle with intent to injure the owner, the evidence showed that the cattle were fence-breakers; that appellant had a good fence, and that he shot the cattle to protect his crop, the court erred in not submitting this defense. Following Lane v. State, 16 Texas Grim. App., 172 and other cases.
53 Tex. Crim. 490Carnes v. State (1908)
The ppinion states the case.
53 Tex. Crim. 490Green v. State (1908)
1. —Local Option—Evidence—Refreshing Witnesses’ Memory—Written Statement—Grand Jury—Cross-Examination. Upon trial of a violation of the local option law, where the State’s witness denied his ability to testify to any sale of whisky or other liquid containing intoxicating liquor as having been made by the defendant, it was reversible error to permit said witness to refresh his memory from a written memoranda handed him by the' State’s counsel, alleged to be a statement of the witness before the grand jury, without permitting defendant’s counsel upon his request to see and examine what its contents were and whether it was such as would refresh the memory of the witness in respect to the particular matter inquired about; and thereupon permit the witness to testify that one of the transactions he had with defendant was a sale of intoxicating liquor; and this although State’s counsel claimed that the memoranda contained other matter given as evidence before the grand jury. 2. —Same—Evidence—Testing Memory of Witness—Drunkenness. Where a witness undertakes to give a statement of his observations, etc., and transactions to which he is a party, his condition of mind as affected by drunkenness or sobriety may be inquired into. 3. —Same—Jury and Jury Law—Jury Commissioners. Whore upon trial of a violation of the local option law the defendant objected to the jury because it had not been selected by the jury commissioners, and it was shown that at the time the jury commissioners were selecting jurors for the term of the county court at which defendant was afterwards tried, the county judge purposely instructed the jury commissioners to select the jurors for three weeks of said term only, believing' that the business could be disposed of in that time; but after holding court for three weeks found that he could not do so, there was no error that he instructed the sheriff to summon and select the jury for the fourth week, during which defendant was tried, no injury to defendant being shown. Distinguishing White v. State, 45 Texas Grim. Itep., 597. 4. —Same—Charge of Court—Charges Requested. Where upon trial of a violation of the local option law the charge of the court was sufficient, and the charges requested by the defense were upon the weight of the evidence, the latter were correctly refused, and there was no error.
53 Tex. Crim. 500Russell v. State (1908)
1. —Adultery—Charge of Court—Reasonable Doubt—Burden of Proof. Where upon trial for adultery the requested charges on burden of proof, reasonable doubt and circumstantial evidence were covered by the court’s charge, there was no error in refusing them. 2. —Same—Jury and Jury law—Opinion of Juror. Where upon trial for adultery, the record showed that the juror objected to on account of his opinion did not base his opinion on the fact that he had talked with any one of the witnesses, but on rumor, and that nothing was said that the juror was distasteful to the defendant, etc., and that the juror was otherwise qualified, there was no error. 3. —Same'—Evidence—Circumstances. Upon trial for adultery there was no error in permitting the State’s witness to testify that he had seen defendant’s horse hitched at the home of his paramour. 4. —Same—Evidence—Date of Offense. Upon trial for adultery the fact that the acts inquired about were subsequent to the date alleged in the indictment, would not render the testimony inadmissible. 5. —Same—Argument of Counsel. Where the argument of counsel, in the light of the explanation of the court, was not objectionable, there was no error. 6. —Same—Charge of Court—Weight of Evidence. Where upon trial for adultery the defendant admitted his marriage, there was no error in assuming this fact in the charge of the court. Following Nelson v. State, 35 Texas Grim. Rep., 205 and other cases. 7. —Same—Misconduct of Jury. Where the evidence upon the issue of the misconduct of the jury, refutes such misconduct, there was no error in not granting a new trial upon this ground.
53 Tex. Crim. 503Teague v. State (1908)
local Option—Notice oí Appeal—Motion for New Trial. Upon an appeal from a conviction of a violation oí the local option law, where the record showed that the appellant did not except to the action of the court below in overruling liis motion for a new trial, nor that he gave any notice of appeal to this court and had the same properly entered under article 883 Code Criminal Procedure, the appeal must be dismissed. Solari v. State, 3 Texas Crim. App., 482, and other cases.
53 Tex. Crim. 504Alexander v. State (1908)
1. —Local Option—Statement of Facts—Filing After Adjournment. Where the court adjourned on the 15th day of February, 1908, and the statement of facts was filed March 2, 1908, and there was no order authorizing the filing in vacation, the same cannot be considered. 2. —Same—Elections—Contest—Orders of Commissioners Court. Where the record showed that there was no civil contest of the local option law, as provided by the Thirtieth Legislature, objection to the orders of the commissioners court affecting the local option election, could not be considered. 3. —Same—Substitution—Information. Where the substitution of the complaint and information complied in all respects with article • 470, Code Criminal Procedure, there was no error. Following Withers v. State, 21 Texas Crim. App., 210 and other cases.
53 Tex. Crim. 505Phillips v. State (1908)
Local Option—Sufficiency of Evidence—Date of Offense. Where upon trial of a violation of the local option law the witness for the State manifested some equivocation, but admitted that the date he swore to before the grand jury was probably correct, and the same was subsequent to the time local option went into effect, the conviction was sustained.
53 Tex. Crim. 506Teague v. State (1908)
local Option—Notice of Appeal. Article 883 Code Criminal Procedure requires that notice of appeal must be given and entered in the minutes of the trial court in order to perfect the appeal. And unless notice' of appeal is given and entered in the court below, this court has no jurisdiction.
53 Tex. Crim. 507Byrd v. State (1908)
The opinion states the case.
53 Tex. Crim. 507Teague v. State (1908)
local Option—Notice of Appeal—Jurisdiction. Where the record upon appeal showed that the appellant failed to give notice of appeal and entered the same in the court below, this court has no jurisdiction.
53 Tex. Crim. 509Carnes v. State (1908)
local Option—Sufficiency of Evidence—Identity of Defendant. Where upon trial of a violation of the local option law there was some doubt as to whether the defendant was the man who sold the whisky, but the State’s witness finally identified him as such, the defendant denying the sale; the verdict will not be disturbed.
53 Tex. Crim. 510Halsell v. State (1907)
The opinion states the case.
53 Tex. Crim. 512Killman v. State (1908)
The opinion states the case.
53 Tex. Crim. 515Burnett v. State (1908)
The opinion states the case.
53 Tex. Crim. 525Alderson v. State (1908)
The opinion states the case.
53 Tex. Crim. 529Clark v. State (1908)
1. —Drunkenness—Evidence—Intoxicating liquors. Where upon trial of drunkenness in a public place the defendant’s witness was not shown to have any special acquaintance with defendant, or how much beer or whisky would have intoxicated him, there was no error in excluding his opinion that six dippers of beer the size referred to by defendant and his witnesses drank by a person would not intoxicate him. 2. —Same—Charge of Court—Words of Ordinary Meaning. Upon trial of drunkenness in a public place, where the court in terms charged the statute in respect to being found in a state of intoxication in a public place, and what was meant by a public place, and that drunkenness and intoxication are synonymous terms, there was no error in not defining the word drunkenness, as this word is to be understood in its ordinary and popular sense. 3. —Same.—Argument of Counsel. While the argument of the State’s counsel may have been somewhat objectionable, yet where the court instructed the jury that the only issue which they were authorized to consider was whether the defendant was drunk as charged in the information, and in terms stated that the appeals by counsel in regard to the sheriff (which State’s counsel alluded to) should be disregarded, and that the ease be decided on the law and evidence, there was no error. 4.—Same—Sufficiency of the Evidence. Where upon trial of drunkenness in a public place the testimony was that the defendant was in a state of intoxication, loud-, boisterous and unruly, etc., and there was some testimony that he was not in a very advanced stage of intoxication the verdict of guilty will not be disturbed.
53 Tex. Crim. 533Henderson v. State (1908)
1. —Malieious Mischief—Evidence—Value of Dog. Where upon trial for unlawfully, willfully and wantonly Idling a dog, the property of another, defendant received the lowest punishment, there was no error in admitting testimony of the value of the dog over defendant’s objecttion. 2. —Same—Charge of Court. Where upon trial for willfully and wantonly killing a dog of another, the court in his charge correctly defined the terms willful and wanton, there was no error in refusing special charges on the same subject. 3. —Same—Sufficiency of the Evidence. Where upon trial for willfully and wantonly killing a dog of another, the evidence showed that the prosecutor owned the dog; that he heard a gun shot and the dog yelp; that he went up near where defendant lived and found his dog dead, and defendant told him that he killed the dog, the verdict was sustained.
53 Tex. Crim. 534Green v. State (1908)
The opinion states the case.
53 Tex. Crim. 536Howell v. State (1908)
Local Option—Charge of Court—Defensive Theory. Where upon trial of a violation of the local option law the evidence raised the issue that the prosecuting witness went into the defendant’s wareroom and took the whisky without defendant’s consent, the court should have submitted a requested charge upon this issue.
53 Tex. Crim. 540Green v. State (1908)
The opinion states the case.
53 Tex. Crim. 541Hargrove v. State (1908)
The opinion states the case.
53 Tex. Crim. 542Railsback v. State (1908)
1. —Assault With Intent to Rape—Postponement. Where upon trial for assault with intent to commit rape, the motion for postponement was oral, and the court therein was not called on to postpone the case to any certain time on account of the absent witness, who was expected to appear during the trial, but failed to do so, there was no error 2. —Same—Charge of Court—Definition of Offense—Reasonable Doubt. Where upon trial for assault to rape by force, the court in express terms applied the law as to the specific intent, the want of consent and the question of force, and that of resistance by the prosecutrix, to the facts upon the issue of assault with intent to rape, as well as aggravated assault, and charged the doctrine of reasonable doubt as between the two offenses, and also charged upon the theory of the defense of consent, there was no error; although the general definition in the court’s charge of rape included the term, fraud. 3.—Same—Specific Intent—Sufficiency of Evidence. Where upon trial for assault with intent to rape the testimony of the prosecutrix showed a deliberate and outrageous assault upon her by the defendant with the intent to rape without her consent and in spite of her resistance, which was denied by the defendant who claimed to have had intercourse with her by her consent, the conviction will not be disturbed, although the -subsequent conduct of prosecutrix was not just what ordinarily one would expect from, a woman so treated.
53 Tex. Crim. 547Franklin v. State (1908)
1. —Theft—Accomplice—Charge of Court. Where upon trial for theft of the value of $50 and over, the evidence showed the State’s witness to be an accomplice without any dispute, the court should have instructed the jury peremptorily that such witness was an accomplice. Following Richard v. State, 49 Texas Grim. Rep., 192; 90 S. W. Rep., 1017 and other cases. It is not decided, however, that this was reversible error. 2. —Same—Charge of Court—Corroboration. Where upon trial for Iheft the evidence showed more than one accomplice, the court should have charged that the accomplices could not corroborate each other, and a failure to do so was reversible error. Following Eddens v. State, 47 Texas Grim. Rep., 529; 84 S. W. Rep., 828, and other cases. 3. —Same—Variance. Where the indictment alleged that the property charged to have been stolen belonged to three certain parties therein named, and that it was taken from them without their consent; and the proof showed that the .property belonged to a firm, and that such firm was composed of two of the persons named in the indictment, and that the third party named therein was dead and had no interest in the property, the same was a fatal variance. Following Oohen v. State, 20 Texas Grim. App., 224 and other cases.
53 Tex. Crim. 550Piper v. State (1908)
The opinion states the case.
53 Tex. Crim. 552McLemore v. State (1908)
The opinion states the case.
53 Tex. Crim. 553Alexander v. State (1908)
The opinion states the case.
53 Tex. Crim. 556Wilson v. State (1908)
1. —Focal Option—Sufficiency of Evidence—Subterfuge. Where upon trial of a violation of the local option law the evidence showed that local option was in effect; that the defendant caused to be delivered to the prosecutor a quart of whisky, for which the latter left money in payment on the bar and walked out; that the court properly charged the jury and applied the law to the facts, there was no necessity of charging on the question of subterfuge, and the facts constituting the sale. 2. —Same—Argument of Counsel. Where upon trial of a violation of the local option law the State’s counsel in his argument told the jury that they could not look him in the face and say that defendant was not guilty, there was no reversible error.
53 Tex. Crim. 556Landreth v. State (1908)
Theft—Finding Property—Intent. Where upon trial for theft the evidence showed that the defendant found the property alleged to have been stolen and made no effort to conceal it, and there was no design to steal at the time on his part the same was insufficient to convict.
53 Tex. Crim. 559Moore v. State (1908)
1. —Disorderly House—Continuance—Immaterial Testimony. Where the testimony in the application for continuance was of such negative character as to make it doubtful whether if the witnesses had appeared they could have testified to anything material for the defense, there was no error in refusing the continuance. 2. —Same—Evidence—General Reputation. The authorities are uniform that proof may be made by general reputation of the character of the house kept by one who is prosecuted for keeping a disorderly house; in such case, however, the fact of defendant’s connection with such house as owner or lessee must be shown by other testimony than by general reputation. Where this was done, there was no error. 3. —Same—Charge of Court—Accomplice. Where upon trial for keeping a disorderly house the court properly charged the law as applicable to the facts, and the question of accomplice was not in the case, there was no error in refusing a requested charge on accomplice testimony, nor in refusing other special charges covered by the main charge. 4. —Same—Argument of Counsel. See opinion for argument of State’s counsel, which considered as a whole was not reversible error. 5. —Same—Sufficiency of Evidence. Where upon trial for keeping a disorderly house the evidence for the State was sufficient to sustain the verdict, the same will not be disturbed.
53 Tex. Crim. 562Lowry v. State (1908)
1. —Carrying Pistol—Conversation—Evidence. Where upon trial for carrying a pistol the testimony objected to was a part and parcel of a conversation brought out by the defendant, there was no error in admitting the same. 2. —Same—Evidence—Impeachment. Where the question objected to was asked by the county attorney to lay a predicate to impeach the witness for the defense, and to show his interest in the case, the same was permissible, on trial for unlawfully carrying a pistol, and there was no error. 3. —Same—Argument of Counsel. Where upon trial for unlawfully carrying a pistol the defendant received the minimum punishment, the argument of State’s counsel even if improper was not reversible error.
53 Tex. Crim. 563Robinson v. State (1908)
The opinion states the case.
53 Tex. Crim. 565Robinson v. State (1908)
The opinion states the case.
53 Tex. Crim. 565Reese v. State (1908)
1. —Aggravated Assault—Statement of Facts—Continuance. An application for continuance cannot be reviewed on appeal in the absence of a statement of fact. 2. —Same—Certificate of Judge. Where the statement of facts is not verified by a certificate of the trial judge, the same cannot be considered on appeal; and this, whether an agreed statement or one made up by the judge.
53 Tex. Crim. 567Robinson v. State (1908)
1. —Local Option—Postponement—Want of Diligence. Where a motion for a postponement was wholly lacking in showing diligence to procure the absent witnesses, and did not show that defendant could prove an alibi, as attempted, the same was properly overruled. 2. —Same—Indictment. Where upon trial of a violation of the local option law the indictment was in proper form, the fact that other indictments might be pending charging a sale to the same person on the same day would be no reason to quash the indictment; such matter must be reached by plea of former conviction or former acquittal. 3. —Same—Different Sales on Same Day. In prosecutions of violations of the local option law, each sale, if separable from another, is a separate offense, although occuring on the same day between the same parties. 4. —Same—Sufficiency of Evidence—Other Sales. ■Where the evidence was sufficient to sustain a conviction, and there was no motion that the State elect, and no plea of former conviction or former acquittal in the record, the conviction was sustained although there is some reference in the testimony of one witness as to other sales.
53 Tex. Crim. 570Killman v. State (1908)
1.—Local Option—Charge of Court-Order for Intoxicating Liquor. Where upon trial of a violation of the local option law there was evidence that the prosecuting witness had ordered intoxicating liquor from the defendant, and also testimony that defendant had made a sale to prosecutor, and the court correctly charged that an order for whisky was not a violation of the law, there was no error in refusing a special charge on the same subject. 2. —Same—Information—Different Elections—Presumption of Law. Upon trial of a violation of the local option law where the information alleged that the election was held in the month of September, 1903, and that the sale occurred in May, 1906, it was not necessary to allege that the local option law of 1903 had not been repealed by a subsequent election, held at the expiration of two years, and that the law was then in force, as the local option law is presumed to continue in operation until it is repealed. 3. —Same—Absence of Defendant. Where upon trial of a violation of the local option law the record showed that the defendant during his trial voluntarily retired from the courtroom to a closet for a few moments during argument of his counsel, the same was not such absence from the trial under article 633, Code Criminal Procedure, as to vitiate the verdict. Distinguishing Bell v. State, 32 Texas Crim. Rep., 436. 4. —Same—Practice in County Court—Recall of Witness. Where upon trial of a violation of the local option law, the jury were permitted to have a witness recalled to restate his testimony, and the bill of exceptions did not show that the testimony so permitted to be introduced was different from what it was when originally given, the presumption is that the court acted correctly in admitting it, and that the witness restated his testimony as first delivered. 5. —Same—Evidence—Standing Order—Res Gestas. Where upon trial of a violation of the local option law the prosecuting witness testified that he had a standing order for whisky with defendant who was running a clubroom and cold storage; that he paid defendant $1.50 to order him a quart of whisky, and that he had received a short quart from defendant shortly thereafter, that he had been in defendant’s establishment at different times thereafter and procured whisky by the drink; that he did not know whether he was paying for the whisky alone or also for expressage and storage of same, or whether the order was kept up; that he never paid more on said order than the $1.50; that about five months after said first order he procured a drink of whisky from defendant and paid him 15 cents therefor. Held, that there was no error to admit testimony that prosecutor had gone into defendant’s establishment and got whisky a number of times before the transaction upon which the prosecution was predicated occurred.
53 Tex. Crim. 578Coleman v. State (1908)
The opinion states the case.
53 Tex. Crim. 589Lockhart v. State (1908)
The opinion states the case.
53 Tex. Crim. 596Essary v. State (1908)
X. Murder—Statement of Facts—Questions and Answers—Practice on Appeal. Where upon appeal from a conviction of murder in the second degree, the statement of facts consisted entirely of questions and answers, and no necessity therefor was shown in the record, the same could not be considered. Following Hargraves v. State, 53 Texas Grim. Rep., 147; 109 S. W. Rep., 163. 2. game—Jury and Jury Law—Opinion of Juror—Discretion of Court. Where upon trial for murder it was set up in motion for new trial that one of the jurors was prejudiced against the defendant and had so expressed himself, which matter was verified by affidavits attached, and which issue had been submitted on testimony pro and con to the trial court, the matter is one for the discretion of the trial court; and even where the statement of facts could not be considered, it will be assumed that the trial court reached his conclusion upon proper evidence. 3. —Same—Challenge for Cause—English language. Where upon trial for murder it appeared that the juror objected to stated that he understood the English language well enough to understand the testimony, the argument of counsel and the charge of the court, and that lie actually read a passage from the Penal Code, he was not disqualified on the objection that lie could not understand the English language. 4. —Same—leading Questions. Where upon trial for murder the State’s witness had testified that the party inquired about had put liis hand back of his waist, there was no error in permitting the State’s counsel to call the attention of the witness to the particular portion of the body with reference to where the party placed his hand, without suggesting the answer sought. Nor was it leading. 5. —Same—Reading of Indictment—Plea of Defendant—Arraignment. Where upon trial for murder it appeared that all the testimony of the State was offered before the indictment was read, or before any plea on the part of the defendant had been entered, and there was no offer made by the State to reintroduce the testimony, the same was reversible error under article 697, Code Criminal Procedure. Wilkins v. State, 15 Texas Grim. App., 420, and other cases.
53 Tex. Crim. 604Terrell v. State (1908)
The opinion states the case.
53 Tex. Crim. 609Cano v. State (1908)
1. —Murder—Charge of Court—Express Malice. Where upon trial for murder the evidence showed that defendant went to the house of deceased, was greeted .in a friendly way, and at request of defendant deceased left the house with him and was killed by him within a few moments by means of pistol shots; that defendant was cool and deliberate at the time and the deceased unarmed, etc., the same justified a charge on murder in the first degree. 2. —Same—Evidence—Declaration of Third Party. Where upon trial for murder the State’s witness was permitted to say that she did not go out to the scene of the shooting because she was afraid, while inadmissible, was inconsequential, and therefore not reversible error.
53 Tex. Crim. 613Sanders v. State (1908)
The opinion states the case.
53 Tex. Crim. 615Taylor v. State (1908)
1. —Theft—Charge of Court—Circumstantial Evidence. Where upon trial for theft the evidence was purely circumstantial the court should have charged on circumstantial evidence. 2. —Same—Charge of Court—Possession. Where tile indictment charged the possession of the alleged stolen property in one person, and the court in his charge submitted the name of another party, the corporation, for whom the first person held possession, the same was error. 3. —Same—Identification. See opinion where the evidence of the identification of the alleged stolen property was not sufficient to warrant a conviction. 4. —Same—Charge of Court—Accomplice. Where upon trial for theft the charge on accomplice testimony was sufficient there was no error; besides the exception to same was too general.
53 Tex. Crim. 617Crain v. State (1908)
1. —Disturbing Peace—Private House. Where upon trial for disturbing the inhabitants of a private house, etc., the evidence showed that while the alleged house was more or less unfinished, that it was practically finished and the owner moving in shortly after the commission of the offense, and that he gave a' dance therein at the time, it was such a house as was contemplated in the statute. 2. —Same—Charge of Court. Upon trial for disturbing the inhabitants of a private house, by the uso of loud and vociferous, obscene, vulgar and indecent language, a charge which did not limit the jury to such language and conduct, but instructed the jury to find the defendant guilty if he disturbed the inhabitants of the alleged house, was error. Following Jones v. State, 50 Texas Orim. Rep., 210; 16 Texas (It. Rep., 687.
53 Tex. Crim. 619Cordona v. State (1908)
The opinion states the case.
53 Tex. Crim. 620Pridemore v. State (1908)
1.—Incest—Evidence—Other Transactions. Upon trial for incest, after the State had introduced testimony locating the time and place of the alleged offense, there was no error that before this time the defendant and prosecutrix had been seen going together into the high weeds, etc., to show familiarity, no act of intercourse having been shown. 2. —Same—Evidence—Exceptions Addressed to the Court. See opinion where upon trial for incest the State’s counsel asked the State’s witness as to statements made by the prosecutrix with reference to the paternity of her child, which was objected to by the defense as hearsay and the objection sustained by the court, and the bill stated that these matters were addressed to the court, etc. 3. —Same—Evidence—Corroborating Witness. Where upon trial for incest, the record did not show that the prosecutrix had made statements out of court different from those she made in court, it was not permissible for State’s counsel in order to corroborate prosecutrix to prove that she had on one and various occasions made statements out of court with reference to the paternity of her child similar to the testimony she gave in the case on trial. Neither was it permissible for the State’s counsel to make statements in the presence of the jury which had the effect to indirectly corroborate said witness. Following Poyner v. State, 40 Texas Grim. Rep., 640 ; 51 S. W. Rep., 376. . 4. —Same—Evidence—Corroborating State’s Witness. Upon trial for incest, it was inadmissible to permit the prosecuting attorney to testify that the prosecutrix had stated before the grand jury that the defendant was the father of her child. 5. —Same—Evidence—Age of Prosecutrix. Upon trial for incest there was no error in permitting the prosecutrix to state her age at the time the defendant first proposed that she have carnal intercourse with him.
53 Tex. Crim. 624Gordon v. State (1908)
The opinion states the case.
53 Tex. Crim. 625Singleton v. State (1908)
1. —Gaming—Betting—Private Residence—Constitutional law—Caption of legislative Act. The caption of the Act of the Thirtieth Legislature amending article 388, Penal Code, containing the clause, “and generally to suppress gambling; repealing all laws in conflict herewith and declaring an emergency”; together with other clauses of said caption, includes the offense of wagering money at cards, although it does not say so in precise terms. , 2. —Same—Betting at Cards—Private Residence—Family. Under the Act of the Thirtieth Legislature it is an1 offense to bet at cards in a private residence occupied by a private family. Following Purvis v. State, 52 Texas Crim. Rep., 342.
53 Tex. Crim. 628Barnes v. State (1908)
The opinion states the case.
53 Tex. Crim. 631Nickelson v. State (1908)
The opinion states the case.
53 Tex. Crim. 636Helvenston v. State (1908)
The opinion states the case.
53 Tex. Crim. 643Smith v. State (1908)
The opinion states the case.
53 Tex. Crim. 648Day v. State (1908)
The opinion states the case.