Volume 54 — Texas Criminal Reports

Tried below before the Hon. George Calhoun. Appeal from a conviction of unlawfully keeping and exhibiting, for the purpose of gaming, a gaming table and bank; penalty, two years imprisonment in the penitentiary. The opinion states the case.

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

<p>1. —Local Option—Charge of Court—Unsigned Special Charges.</p> <p>Where upon trial of a violation of the local option law, it affirmatively appeared that the requested charges, some of which were pertinent and indispensable, were not signed or duly certified by the judge trying the case, all of which was evidenced by proper bill of exceptions, and did not comply with article 718 and 904, Code Criminal Procedure, the same was reversible error. Following Logan v. State, 40 Texas Crim. Rep., 85.</p> <p>2. —Same—Evidence—Search and Seizure.</p> <p>Where upon trial of a violation of the local option law the court admitted in evidence testimony with reference to a search under the Act of the Thirtieth Legislature, about one year after the commission of the alleged offense, which said offense occurred before the passage of the said search and seizure law, the same was inadmissible.</p>

Tried below before the Hon. Edward Dwyer. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The facts of this case will be found in the former appeal, 51 Texas Crim. Rep., 367.

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

Tried below before the Hon. Edward Dwyer. Appeal from a conviction of theft over the value of $50; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>From Liberty County.</p> <p>Motion to retax cost in the Court of Criminal Appeals, incurred in a misdemeanor case and entered against the sureties on appellant’s recognizance.</p> <p>The opinion states the case.</p>

<p>Appeal from the Criminal District Court of Dallas. Tried below before the Hon. W. W. Helms.</p> <p>Appeal from a conviction of bigamy; penalty, two years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>1.—Murder—Confessions—Warning—Statutes Construed.</p> <p>Under article 790, Code Criminal Procedure, as amended by the Act of the Thirtieth Legislature, p. 219, no confession of one in jail, or in confinement can be admitted in evidence unless it appears in the written statement itself that the person making same had been warned by the person to whom the same was made; that he did not have to make such statement, and that the same so made can be used as evidence against him; and where such statement' appeared in the certificate of the officer attached to such written statement, it was insufficient.</p> <p>2. —Same—Written Confession—Defendant as a Witness.</p> <p>Where upon trial for murder the written confession of defendant was introduced in evidence, but did not contain in itself a statement that defendant had been warned, etc., which was contained in the certificate of the' notary-public attached thereto, the same was insufficient and reversible error; and said error was not cured by the fact that defendant testified in his own behalf, but his testimony varied in material respects from that contained in his written confession.</p> <p>3. —Same—Practice on Appeal—Public Policy.</p> <p>Where it appeared on appeal from a conviction of murder in the second degree that illegal testimony had been admitted on the trial below, which injured the rights of the defendant, the judgment of conviction must be reversed regardless of the question as to whether the State can secure a conviction on another trial.</p>

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

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

Tried below before the Hon. Edward Dwyer. Appeal from a conviction of murder in the first degree; penalty, death. The opinion states the case.

Tried below before the Hon. Edward Dwyer. Appeal from a conviction of burglary; penalty, three years imprisonment in the penitentiary. The opinion states the case.

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

Tried below before the Hon. J. N. Browning. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. The opinion states the case.

<p>1. —Embezzlement—Partnership, What is—Agency.</p> <p>In a prosecution for embezzlement where the evidence showed that the prosecutor furnished defendant with a wagon and team, etc., and agreed to give him one half the amount that he could make for doing certain hauling, and that he misapplied a certain sum of money which he received in the course of this business arrangement. Held, that the defendant was an agent and not a partner of the prosecutor, and subject to prosecution for embezzlement. Davidson, Presiding Judge, dissenting. Distinguishing McCrary v. State, 51 Texas Crim. Rep., 496 and 502.</p> <p>2. —Same—Charge of Court.</p> <p>Upon trial for embezzlement where the evidence showed that the prosecutor furnished defendant with a wagon and team, etc., and agreed to give him as a salary one half the amount that he could make by doing certain hauling, and the court submitted defendant’s special charge defining a partnership to be the combination by two or more persons of their capital, or labor, or skill, for the purpose of business for their common benefit, and that if the jury-believed that prosecutor and defendant were partners, to acquit the defendant, the defendant could not complain, and there was no error.</p>

Tried below before the Hon. W. W. Nelms. Appeal from a conviction of murder in the first degree; penalty, death. The opinion states the case.

<p>Bail Bond—Scire Facias—Evidence.</p> <p>Where the information was not' filed for over three months after arrest and the execution of the bail bond, the latter was a nullity, and it was error not to permit defendant to show this fact by offering the information in evidence.</p>

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

<p>1.—Forgery—Extradition—Bill of Exceptions.</p> <p>Where upon appeal from a conviction of forgery, appellant contended that he was illegally extradited from the Republic of Mexico, and there was no bill of exceptions reserved in respect to the action of the court on this branch of the case, the same could not be considered.</p> <p>3.—Same—Indictment—Bill of Lading—Instrument in Writing.</p> <p>Where in a prosecution for forgery, the instrument alleged to have been forged was what is known as a bill of lading, which the indictment set out under proper allegations and explanatory averments under article 530, Penal Code, the indictment was sufficient. Following Simms v. State, 32 Texas Crim. Rep., 277.</p> <p>3.—Same—Evidence—Intent to Defraud.</p> <p>Upon trial for forgery of a bill of lading, evidence was admissible to show that after defendant forged said bill of lading he drew a draft against the same and obtained money thereon, to show intent to defraud.</p> <p>4. —Same—Evidence—Abbreviations—Words and Phrases.</p> <p>. Upon trial for forgery of a bill of lading, there was no error in permitting a witness, who was acquainted with the forms of this kind, to explain the abbreviations in the bill of lading and what they meant.</p> <p>5. —Same—Variance—Written Instrument.</p> <p>Where upon trial for forgery, the indictment set out a certain bill of lading by its tenor, and the bill of lading offered in evidence varied materially from the one set out in the indictment, the variance was fatal and reversible error.</p>

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

Tried below before the Hon. W. J. Oxford. Appeal from a conviction of assault to murder; penalty, three years imprisonment in the penitentiary. The opinion states the case.

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

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

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

<p>Appeal from the District Court of Travis. Tried below before the Hon. Chas. A. Wilcox.</p> <p>Appeal from a conviction of theft from the person; penalty, two years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

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

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

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

Tried below before the Hon. C. B. Potter. Appeal from habeas corpus remanding relator to custody under extradition proceedings. The statement of facts showed that the relator though denying that he went by the name of John Tate, had signed papers as John Tate and had also claimed that name, and that he looked like the picture of the person claimed to be John Tate, etc.

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

From Fayette County. Original application for a writ of habeas corpus, asking release from commitment under contempt proceedings before a notary public; relator refusing to answer as a witness certain interrogatories propounded to him by his codefendant in a civil case. The opinion states the case.

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

<p>1. —City Charter and Ordinance—Habeas Corpus—Corporate Existence—Quo Warranto.</p> <p>Where upon habeas corpus proceedings the record showed that the relator was arrested for a violation of a city ordinance and contended that said city had no corporate existence. Held, that such question and the election and incumbency of said city’s officers could not be inquired into in any such proceedings, and that the only way such an attack could be made was by quo warranta proceedings.</p> <p>2. —Same—Enacting Clause—Ordinance.</p> <p>Where the enacting clause of -the ordinance under which the relator was arrested followed the statute literally, the same was not subject to attack; and this although the city had retained its original corporate name to wit: “Mayor, Alderman and inhabitants of the City of Calvert,” in changing from a special charter to one under the provisions of the Revised Statute.</p> <p>3. —Same—Corporate Name—Prescription—Custom—Usage—Locus of Corporation.</p> <p>Where a city had for more than thirty years continuously used its corporate name in all the official acts and proclamations of said city, it acquired said corporate name in fact by custom, usage and prescription; and the occasional additional name of the word Texas was merely descriptive of the locus of said corporation.</p>

<p>1. —Murder—Jury and Jury Law—Jury Wheel—Constitutional law.</p> <p>The Act of the Thirtieth Legislature, page 269, with reference to the summoning and impanelling of grand and petit juries, appljdng only to counties having cities aggregating twenty thousand in population according to the census of 1900, is not violative of section 56, article 3, of the Constitution of Texas which inhibits the enactment of any local or special law touching the summoning or impanneling of grand or petit jurors. Davidson, Presiding Judge, dissenting.</p> <p>2. —Same—Bill of Bights—Equality and Uniformity.</p> <p>The Act of the Thirtieth Legislature, page 269, with reference to jury service is not violative of section 1, article 14 of the Bill of Rights which requires that all laws must be equal and uniform, the same being so upon the same class. Following Clark v. Finley, 93 Texas, 171; Gillaspie v. State, 42 Texas Crim. Rep., 351.</p> <p>3. —Same—Repeal of Law.</p> <p>The Act of the Thirtieth Legislature, page 269, with reference to jury service does not repeal the old jury law, except as to counties affected thereby.</p> <p>4. —Same—Due Process of Law.</p> <p>The Act of the Thirtieth Legislature, page 269, with reference to jury service is not violative of section 19 of the Bill of Rights, and provides due process of law of the law of the land.</p> <p>5. —Same—Legislative Power—Classification.</p> <p>The matter of designating classes for legislation is a duty devolving upon the legislative power and not upon the court, and such classification must necessarily be by population or by taxable values.</p> <p>6. —Same—Manslaughter—Charge of Court—Adequate Cause.</p> <p>Upon trial for murder where there was evidence that the deceased provoked the difficulty, a charge of the court which simply stated the adequate cause mentioned in the statute, instead of applying the law to the facts of the case, same was reversible error. Brooks, Judge, dissenting.</p> <p>7. —Same—Self-Defense—Manslaughter—Act of Third Party.</p> <p>While it is sometimes difficult to draw the line, where the question of serious bodily injury is involved, between self-defense and manslaughter, the court should nevertheless definitely instruct the jury, so that they will understand where one ends and the other begins; and where the evidence tended to show that the deceased alone provoked the difficulty with a view of inflicting severe chastisement upon defendant, the latter would have the legal right to have this, phase of the law submitted in a charge upon manslaughter. And so if the defendant believed that the deceased was bringing on the difficulty to be joined by another, this question should have been submitted.</p> <p>8. —Same—Charge of Court—Acts of Third Parties.</p> <p>Where upon trial for murder the evidence showed that the deceased and another on one side, and the defendant on the other side were engaged in an altercation, and the transaction between deceased’s companion and the defendant seemed to permeate the entire difficulty, it was error to charge the jury that this could not be considered in passing upon the question whether defendant was the aggressor in the subsequent transaction with deceased which resulted in the latter’s death.</p> <p>9. —Same—Evidence—Dying Declarations.</p> <p>Where upon trial for murder testimony as to certain dying declarations of deceased was admissible, the court should nevertheless have charged the jury that said declarations must be voluntarily uttered, and that deceased at the time was rational and conscious of impending death.</p> <p>10. —Same—Evidence—Prior Difficulty—Third Party.</p> <p>Where upon trial for murder defendant as a witness had gone no further in his testimony than to assert as a fact some prior difficulty with deceased’s companion, to show that the latter two were acting together to do him harm, it was reversible error to permit the State upon cross-examination to go into details of said prior difficulty, and then introduce other State witnesses to contradict defendant’s testimony thereon.</p> <p>11. —Same—Special Venire—Sheriff’s Return.</p> <p>Where upon trial for murder it appeared that for all jurors whom the sheriff’s return showed were summoned either in person or by leaving summons at residence, and for those who were not present an attachment was issued and all were brought into court and for good cause shown excused, there was no merit in the complaint that the court erred in failing to quash the sheriff’s return.</p> <p>12. —Same—Misconduct of Jury—Ignoring Charge of Court.</p> <p>Upon trial for murder after conviction, on motion for new trial, jurors could not be permitted to show by their affidavit that they ignored defendant’s special charges submitted to them by the court. Following Dancy v. State, 41 Texas Crim. Rep., 293.</p> <p>13. —Same—Testimony Outside of the Record.</p> <p>Where on motion for new trial upon conviction for murder, nine of the jurors swore that they did not receive testimony in the jury room that defendant had killed other men, and three of the jurors swore that they did receive this testimony, it became an issue of fact for the trial court, and there was no reversible error in not granting a new trial.</p> <p>14. —Same—Charge of Court—Deadly Weapon.</p> <p>Where upon trial for murder the weapon used by the defendant was shown to have been a pistol, and there was no dispute that deceased was shot by defendant with said pistol and killed, there was no error in not instructing the jury on the instrument or means used with reference to showing intent.</p> <p>15. —Same—Argument of Counsel.</p> <p>Where upon trial for murder the State’s counsel made an inaccurate argument upon the evidence, it was not error to refuse a charge withdrawing same, as defendant’s counsel had the right to answer this argument. Nor was it improper argument that State’s counsel believed the jury would convict defendant because they were honest men; and that all parties convicted of felony were entitled to bail if the punishment did not exceed fifteen years in the penitentiary.</p>

Tried below before the Hon. Cullin C. Higgins. Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Leaving out formal averments and the names of the parties the indictment charged: That on or about the 6th day of December, A. D., 1904, and anterior to the presentment of this indictment, one-in the County of Johnson and State of Texas did then and there unlawfully with malice aforethought place and caused to be placed a certain deadly poison to wit strychnine in a certain syringe which said syringe the said-then and there well knew would be used by one-in taking and…

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

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

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

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

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

<p>1, —Murder—Evidence—Res gestae—Competency of Witness.</p> <p>Upon trial for murder there was no error in admitting the testimony of a State's witness who testified that she was close to the scene of the homicide and heard the shooting in which her father and brother were killed; that she ran up to the wagon, found her father lying in the wagon unconscious, and her brother who was ten years of age (and who had since died) standing in the wagon, and who replied to her question as to who" did the shooting, that it was the defendant and his father; this was res gestae; the question as to the competency of the dead witness was immaterial. Following Croomes v. State, 40 Texas Crim. Rep., 672.</p> <p>2. —Same—Evidence—Threats—Animus.</p> <p>Upon trial for murder there was no error in admitting the declaration of a codefendant made five or six days before the homicide in which he abused and threatened the deceased; it having been shown that the defendant and his codefendant subsequently cooperated in the homicide.</p> <p>3. —Same—Evidence—Expert Testimony.</p> <p>Upon trial for murder there was no error to permit a State’s witness, who had qualified himself as a judge of the difference between the report of a winchester rifle and a shotgun, to give his opinion as to what character of gun was used during the homicide from the sound of the shot which the witness heard while some distance away from the scene of the homicide.</p> <p>4. —Same—Evidence—Character of Deceased.</p> <p>Upon trial for murder there was no error in rejecting testimony by the defense based upon a hypothetical case, instead of offering testimony as to the general character of the deceased.</p> <p>5. —Same—Bill of Exceptions.</p> <p>Upon appeal from a conviction of murder in the second degree a bill of exceptions not approved by the trial judge, could not be considered.</p> <p>6. —Same—Dying Declarations—Evidence.</p> <p>Upon trial for murder there was no error to admit the dying declaration of the deceased who was about ten years of age at the time he made it; the evidence showing a sufficient intelligence of the deceased, and that he was conscious of impending death at the time; although his death did not take place until some time after said declaration, and after a surgical operation had been performed on the deceased.</p> <p>7. —Same—Charge of Court—Impeaching Testimony.</p> <p>Where upon trial for murder the court had sufficiently charged upon the question of impeaching testimony, there was no error in refusing a requested charge on the same subject.</p>

<p>1. —Perjury—Indictment.</p> <p>See opinion for indictment for perjury held to be sufficient.</p> <p>2. —Same—Sufficiency of Evidence.</p> <p>See opinion for evidence held sufficient to support a conviction for perjury.</p> <p>3. —Same—Impeachment of Witness—Credibility of Witness.</p> <p>On trial for perjury where a State’s witness denied on cross-examination that he was living in adultery, there was no error not to permit defendant to introduce facts and circumstances of a tendency to show that said witness was living in adultery, and thus enter into the trial of the witness whether he was guilty of that offense. Following Ware v. State, 36 Texas Crim. Rep., 597.</p>

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

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

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

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

Leaving out formal averments, the information was as follows: That Frank Solon in the County of McLennan and State of Texas heretofore on the 26th day of January, A. D. 1907, did then and there unlawfully, willfully and knowingly loan and advance to another, to wit: A. J. Bay, a sum of money, to wit: the sum of one and 75-100 ($1.75) dollars, good and lawful money of the United States of America, to be used for paying the poll tax of him, the said A. J. Bay, he the said…

<p>1. —Murder—Jury and Jury Law—Jury Wheel—Constitutional Law—Local and General Law.</p> <p>The Act of the Thirtieth Legislature p. 269, relating to the selecting of juries in counties with cities of certain population, does not violate section 56; article 3 of the Constitution of Texas, and is not a local .or special law.</p> <p>2. —Same—Enabling Clause—Classification—Legislative Discretion.</p> <p>The Legislature in passing the Act of the Thirtieth Legislature p. 269 had the right and discretion in using its own basis of classification of the counties to be included in the scope of said act, and it is immaterial that said act contains no enabling clause or provision for counties having' the requisite population thereafter to come within its provisions; this was a matter of legislative and political policy addressed to the discretion of the Legislature.</p> <p>3. —Same—Case Stated—General Law.</p> <p>The Act of the Thirtieth Legislature p. 269, relating to the selecting of juries in counties with cities of certain population, and the organization of juries by drawing their names from a wheel, etc., is constitutional, and is a general law applicable to all persons within its provisions; and the fact that it does not have a clause authorizing other cities to come within its provisions does not render it invalid; nor does the fact that other portions of the jury law applying to the rest of the State differ from said act.—Davidson, Presiding Judge, dissenting.</p>

The following statement of the facts of the case contained in the brief of the Assistant Attorney-General is substantially correct. On the 37th day of January, 1907, two miles west of Lancaster in Dallas County there was a party and dance at the house of Jack Pritchett. At this dance Borden Brandon and his brother, Will Brandon, the deceased, had a difficulty with Buck Walters and his brother, Lee Walters.

<p>1. —Murder—Charge of Court.</p> <p>Where upon trial for murder the State’s evidence rested upon admissions of defendant and other circumstances, the State’s theory being assassination and that of the defense self-defense, there was no error in charging upon the different degrees of murder.</p> <p>2. —Same—Charge of Court—Murder in Second Degree—Manslaughter.</p> <p>Where upon trial for murder the defendant was convicted of manslaughter, alleged errors in a charge of murder in the second degree will not be reviewed on appeal.</p> <p>3. —Same—Charge of Court—Manslaughter—Self-Defense.</p> <p>Where upon trial for murder the theory of the State was assassination and that of the defense self-defense but the court nevertheless charged on manslaughter, of which offense the defendant was convicted, he could not complain although there was slight ground in the record to justify the court to submit the issue of manslaughter. Following Brown v. State, 50 S. W. Rep., 354, and other eases.</p> <p>4. —Same—Copy of Venire—Bill of Exceptions.</p> <p>Where no bill of exceptions was reserved to the ruling of the court in overruling the motion to quash the venire, the same could not be considered on appeal.</p> <p>5. —Same—Charge of Court—Circumstantial Evidence.</p> <p>Upon trial for murder where the evidence of guilt rested partially on defendant’s admission and not wholly upon circumstantial evidence it was not necessary to charge on circumstantial evidence.</p> <p>6. —Same—Evidence—Impeachment of Witness.</p> <p>Where upon trial for murder, one of defendant’s witnesses testified that he could not detect any tracks or evidence thereof along side of a certain tree, where it was supposed the defendant had stood when he fired the shot, it was no error on cross-examination, in order to lay predicate for impeachment, to ask whether the witness had not stated: “Here is where the scoundrel stood who did the killing, right by this tree,” which was denied by the witness, and the State permitted to show in rebuttal that the witness did make such statement, which testimony was limited to impeachment. This was not an expression of opinion merely but amounted to a statement that the witness saw tracks at or near said tree.</p> <p>7.—Same—Statutes Construed.</p> <p>Under article 817 Code Criminal Procedure subdivision 9, the mere fact that a defendant has not received a punishment to which he was justly entitled, would be no reason why he should not be punished at all.</p>

<p>1. —Murder—Charge of Court—Manslaughter—Charge as Entirety.</p> <p>Where upon trial for murder the court in one portion of his charge instructed the jury upon the question of manslaughter that the provocation constituting adequate cause must arise at the time of the killing; and in a preceding charge instructed the jury that in the consideration of such provocation at the time of the killing it was their duty in determining the adequacy of the provocation to consider in connection therein all the facts and circumstances in evidence, the charge upon the whole was sufficient.</p> <p>2. —Same—Evidence—Bill of Exceptions.</p> <p>Where upon trial for murder the alleged rejected testimony appearing^ in defendant’s bill of exceptions appeared in the statement of facts, and besides was not a matter of sufficient importance to justify a reversal, there was no error.</p> <p>3. —Same—Evidence—Deadly Weapon.</p> <p>Where upon trial for murder the knife with which the defendant killed the deceased was identified by the State’s witness, and it was certain that the deceased was killed by a knife at the hands of the defendant; testimony with reference to the size of said knife by way of comparison, could not have injured the rights of the defendant.</p> <p>4. —Same—Evidence—Bes Gestae.</p> <p>Where upon trial for murder a State’s witness testified that deceased immediately after being stabbed called out or said, “Get me a doctor,” there was no error, as this war. res gestae, and also confirmatory of witness’ statement as to the details of the transaction.</p> <p>5. —Same—Newly Discovered' Evidence—Want of Diligence.</p> <p>Where upon a motion for a new trial after a conviction of murder the alleged newly discovered evidence appeared probably untrue; that the same in the nature of things could not change the result; that there was a want of sufficient diligence on the part of the defendant to procure this testimony, there was no error in overruling the motion upon this ground.</p> <p>6. —Same—Sufficiency of Evidence.</p> <p>Where upon an appeal from a conviction of murder in the second degree the testimony of the State negatived the contention of the defendant as to self-defense, and showed a case of a wanton and unprovoked murder, the conviction was sustained.</p>

<p>(On writ of error in the Supreme Court of the United States, 1908)</p> <p>1. —Murder—Jury and Jury Law—Special Venire.</p> <p>Where upon trial for murder the court overruled a motion to postpone on account of absent jurors, and issued instanter attachments for said jurors; and before defendant was required to pass on any talesman all of said jurors, with the exception of one or two, were brought into court, and defendant did not exhaust his challenges, there wa's no error.</p> <p>2. —Same—Challenge for Cause.</p> <p>Where upon trial for murder the State challenged a juror on account of conscientious scruples in regard to inflicting the death penalty, after it had accepted him and before he was accepted by both parties and ■ sworn, there was no error; and the State did not waive its right of challenge because it had first omitted said question, but had not omitted the same in accepting a previous juror.</p> <p>3.—Same—Evidence—Motive.</p> <p>Upon trial for murder where the evidence showed that defendant and deceased were rivals for the attention and carnal favors of a certain negro woman, there was no error in permitting the State to show that the defendant tried to induce said woman to leave the house for which deceased was paying rent, and that defendant threatened to burn up everything the woman had if she did not leave the house.</p> <p>4.—Same—Evidence—Tetters—Motive.</p> <p>Where upon trial for murder the evidence showed rivalry between the deceased and defendant concerning a certain woman, there was no error in admitting in evidence several letters written by the defendant to said woman, which showed intimate relations between them, and also referred to the deceased in more or less threatening terms.</p> <p>5. —Same—Imputing Crime to Another—Evidence.</p> <p>The rule in regard to imputing crime to another requires that the inculpatory facts are such as proximately connect the party not on trial with the transaction; and the mere fact that the deceased had threatened to kill other parties was not sufficiently cogent to be admitted in evidence, without showing that such certain party had been placed in such position that he might have committed the homicide.</p> <p>6. —Same—Dying Declaration—Evidence.</p> <p>Where upon trial for murder the evidence showed some conflict as to the proper predicate for admitting dying declarations, and there was sufficient predicate laid by the State’s testimony for the introduction of deceased’s dying declaration, and the court submitted the question of proper predicate in appropriate instruction to the jury, there was no error. Following Sims v. State, 36 Texas Crim. Rep., 256, and other cases.</p> <p>7. —Same—Evidence—Impeaching Dying Declarations.</p> <p>Where upon trial for murder the dying declaration of deceased was that he looked over his shoulder and recognized defendant at night, testimony by defendant’s witness that he asked the deceased how he knew who shot him, and that deceased stated repeatedly that he recognized him by the flash of the pistol, was inadmissible for the purpose of impeaching deceased’s dying declaration, as the deceased in his dying declaration did not make any statement as to how or by what sort of light he recognized the defendant, and the evidence further showed that a light was shining from a window where defendant was supposed to have stood when he fired the shot, and that the defendant was almost in touching distance of deceased. Such testimony was therefore inadmissible, although defendant could have shown that it was impossible to recognize a person firing a pistol at night by the flash of the pistol.</p> <p>8. —Same—Evidence.</p> <p>Where upon trial for murder a witness for the defendant testified that defendant’s conduct on the night of the homicide was natural, and the State on cross-examination asked witness the question whether defendant was not an old poker player and not easily excited, to which question exception was sustained, and there was no testimony before the jury on this question, there was no error.</p> <p>9. —Same—Misconduct of Jury.</p> <p>Where upon trial for murder the defendant set up the misconduct of a certain juror to set aside the verdict, because said juror had expressed an opinion with reference to defendant’s guilt some time before such juror was summoned, and the investigation upon this question showed that such juror denied said expression of opinion; that he stood out for acquittal for a long time; that defendant was anxious to get him on the jury; that the juror was not examined upon his voir dire as to his conclusions as to the guilt or innocence of defendant or bias in favor of or prejudice against defendant; that if the juror had made such remark it was careless and meaningless, etc., there was no error.</p> <p>10. —Same—Charge of Court—Murder in Second Degree—Harmless Error— Reasonable Doubt.</p> <p>Where upon trial for murder there was serious doubt whether the evidence suggested the theory of murder in the second degree, but the court nevertheless charged upon murder in the second degree, murder in first degree and reasonable doubt between degrees; and the defendant excepted to the court’s general charge in not instructing the jury on inadequate cause, etc., upon a state of facts which was the only one upon which murder in the second degree could be based, there was no error. See charge on murder in second degree held sufficient under the facts of the case, and the expressions "sudden transport of passion” harmless error, if error. Neither did said charge infringe on doctrine of reasonable doubt.</p> <p>11. —Same—Charge of Court—Manslaughter.</p> <p>Where upon trial for murder the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon.</p> <p>ON KEHEAEING.</p> <p>12. —Same—Jurisdiction—Judgment — Practice on Appeal—Rehearing — Mandate.</p> <p>The Court of Criminal Appeals has plenary power over its judgments during the term, and even after the term, and although a motion for rehearing may have been overruled; in order to support its jurisdiction and to ascertain such matters of fact as may be necessary to exercise jurisdiction. This includes the power of the court to withhold its mandate. Following Bailey v. State, 11 Texas Crim. App., 140, and other cases.</p> <p>13. —Same—Reforming and Correcting Judgment—Practice on Appeal—Statutes Construed.</p> <p>Under article 904 Code Criminal Procedure, the clause "reform and correct” has more force than if the statute contained the power merely to “correct”; it therefore has a larger signification, and includes the power to make anew and to rectify the judgment of the trial court.</p> <p>14. —Same—Case Stated.</p> <p>Where upon appeal from a conviction of murder the appellate court has before it, in the record, the foundation of the judgment, including the verdict of the jury and the sentence of the court, said court can do that which the court a quo should have done, that is, reform and correct the judgment so as to include the 9th and 10th requirements of article 831 Code Criminal Procedure which were omitted in the trial court, adjudging the appellant guilty as found by the jury, and affixing the punishment as fixed by the verdict of the jury; upon motion of the State, after the appellant’s motion for rehearing had been overruled, and at a subsequent term of said appellate court, by withholding the mandate, recalling the transcript and entering the proper judgment in the appellate court. Davidson, Presiding Judge dissenting.</p>

<p>1. —Mandamus—County Attorney—Jurisdiction.</p> <p>Where a county attorney refused to place his official signature to an information based upon the affidavit of an informant setting out certain supposed violations in a misdemeanor case, the Court of Criminal Appeals has no jurisdiction in an appeal from a refusal of the county court to grant mandamus compelling the county attorney to affix his signature to said information and file the same together with the affidavit instituting the prosecution.</p> <p>2. —Discretion of County Attorney—Not Ministerial Act.</p> <p>Since there is a large measure of learning and discretion required by prosecuting officers in instituting prosecutions for misdemeanor, and such acts are not purely ministerial the writ of mandamus does not lie to force such officer to file such prosecution.</p>

<p>Theft of Cattle—Husband and Wife—Separate Property.</p> <p>Where upon trial for theft of cattle the evidence showed that the alleged property belonged to the wife and that she never had given her consent to the sale of the cattle by the husband to the prosecuting witness, from whom the cattle were alleged to have been stolen; and there was no ratification of the said wife of the said sale, no title passed to the prosecuting witness thereby, and defendant could not be guilty of stealing the cattle from said prosecuting witness. Following Magee v. White, 23 Texas, 194, and other cases.</p>

<p>Appeal from the District Court of Hpshur. Tried below before the Hon. R. W. Simpson.</p> <p>Appeal from .ai conviction of burglary; penalty, two years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>Appeal from the District Court of Nacogdoches. Tried below before the Hon. C. D. Mims.</p> <p>Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $135 and thirty days confinement in the county jail.</p> <p>The opinion states the case.</p>

<p>Unlawfully Cutting Timber—Charge of Court—Mistake of Fact.</p> <p>Where upon trial for unlawfully cutting timber, etc., the evidence raised the question that the defendant cut the alleged timber under a mistake of fact as to the ownership of the timber, it was reversible error not to have submitted articles 45 and 46 Penal Code as to the question of mistake of fact; and this although a requested instruction did not appear in the record, except as copied in the motion for new trial.</p>

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

<p>Murder—Statement of Fact—Charge of Court—Practice of Appeal.</p> <p>Where upon appeal from conviction of murder assessing the death penalty, there was no statement of facts in the record, complaints of the charge of the court could not be reviewed. Following Holloway v. State, 110 S. W. Rep., 745.</p>

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

<p>Carrying Pistol—Charge of Court—Traveler.</p> <p>Upon trial for unlawfully carrying a pistol, a charge of the court which placed the burden upon defendant to prove beyond a reasonable doubt that; he was a traveler; and which required that he must be both in the pursuit of his journey and engaged in business connected with the same, was reversible error.</p>

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

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

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

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

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

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

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

<p>1. —Assault to Murder—Charge of Court—Mistake of Pact.</p> <p>Where upon trial for assault to murder the defendant claimed that he assaulted the party alleged to have been injured, believing that he was assaulting some one else, the court correctly refused requested charges to acquit the defendant in the event the evidence bore out defendant’s contention; the court correctly submitting the law of assault to murder and aggravated assault.</p> <p>2. —Same—Charge of Court—Serious Bodily Injury.</p> <p>Upon trial for assault to murder where the court charged upon the law of this oSense that if defendant with a deadly weapon and malice aforethought assaulted the injured party, with intent to kill, etc., the same was sufficient; and the further charge that if the weapon used was calculated to produce serious bodily injury, although unnecessary, was favorable to the defendant and he could not complain.</p> <p>3. —Same—Charge of Court—Mistake of Pact.</p> <p>Where upon trial for assault to murder the purpose of the defendant was to inflict injury, it was intentional, although under his theory he may have made a mistake in the individual he intended to strike, and the assault was nevertheless criminal, and under no view of the law under the evidence was he justified.</p> <p>4. —Same—Sufficiency of the Evidence.</p> <p>Where upon trial for assault to murder the evidence was sufficient to justify the verdict of guilty, the same will not be disturbed.</p>

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

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

Tried below before the Hon. Ben. H. Denton. Appeal from a conviction of nape; penalty, imprisonment for life. The opinion states the case.

<p>1. —Incest—Dismissal—Severance—Allusion to Defendant’s Failure to Testify.</p> <p>Where upon trial for incest the defendant was jointly indicted with the woman upon whom he was alleged to have committed the offense, and a motion for severance was granted, and the defendant placed on trial first on his own motion, when the State dismissed the case against defendant’s codefendant and tended her as a witness to defendant, there was no error in the court’s ruling sustaining the State’s action.</p> <p>2. —Same—Evidence—Impeaching Witness.</p> <p>Upon trial for incest there was no error in permitting the State to show that a witness had made the same statement out of court -as he did upon trial, the defendant having cross-examined said witness upon this subject.</p> <p>3. —Same—Evidence—Husband and Wife.</p> <p>Upon trial for incest it was error to permit the State’s counsel to propound the question to a .State’s witness whether he -ever heard any member of defendant’s family deny that the woman with whom defendant was alleged to have committed the incest was the step-daughter—the daughter of defendant’s wife; as this was forcing the wife indirectly to testify against the husband.</p> <p>4. —Same—Definition of Crime—Divorce or Death of First Spouse.</p> <p>Upon trial for incest it was reversible error to permit the witness to say that it was his general understanding that the first husband of defendant’s wife was dead. Divorce from or death of the first husband at the time of the second marriage should have been proved affirmatively before a conviction for incest by the alleged second husband could be had. Following McGrew v. State, 13 Texas Crim. App., 340.</p> <p>5. —Same—Argument of Counsel—Practice in District Court.</p> <p>Where the defendant was jointly indicted for incest with the woman with whom the alleged incest was committed, and the State had dismissed as to her and had tendered her to the defendant as a witness, who did not place her on the stand, it was improper for State’s counsel to allude to defendants failure to use her as a witness.</p>

<p>1. —Aggravated Assault—Indictment.</p> <p>Upon trial for aggravated assault is was not necessary to allege in the indictment defendant’s intent to injure.</p> <p>2. —Same—Evidence—Outcry—Cross-Examination.</p> <p>Upon trial for -aggravated assault for indecent familiarity upon a female, where there was no attempt hy the defense to prove statements contradictory of prosecutrix’s testimony on the trial, it was reversible error to permit the State on cross-examination and to admit in, evidence testimony of the prosecutrix that she had told her mother what had happened between prosecutrix and the defendant some weeks after it had happened. This does not come under the rule of recent outcry.</p> <p>3. —Same—Charge of Court—Indecent Familiarity.</p> <p>Upon trial of aggravated assault for indecent familiarity with a female, where the defendant requested a charge applicable to the facts in evidence, the same should have been submitted, inasmuch as the court’s charge was not sufficiently full on this issue.</p>

Tried' below before the Hon. E. A. Steven®. Appeal from a 'conviction of theft; penalty, two years imprisonment in the penitentiary. The opinion states the case.

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

<p>Murder—Charge of Court—Neglect—Improper Treatment.</p> <p>Where upon trial for murder the evidence raised the issue as to whether the deceased died from the wounds inflicted by the defendant or from his own gross neglect, or improper treatment by some other person; a charge of the court which failed to instruct the jury what offense defendant would be guilty of if deceased through his own gross neglect, or that of others caused his death, but simply charged the jury that if defendant’s act did not kill deceased that he would not be guilty of homicide was reversible error.</p>

Tried below before the Hon. W. H. Clendenin. Appeal from a conviction for misdemeanor theft; penalty, a fine of $1 and1 ten days imprisonment in the county jail. The opinion states the case.

<p>1. —Perjury—Voluntary Statement of Accused.</p> <p>Where upon trial for perjury the evidence showed that there was no examining trial held, but examination waived, and the statement upon which perjury is predicated taken, such statement might form a basis for false swearing, if anything, but is not a voluntary statement, such as is authorized to be introduced in the course of a judicial proceeding and hence cannot be a basis for perjury.</p> <p>2. —Same—Oath not Required to Statement.</p> <p>If the statement is a voluntary one within the "purview of the statutes, it is not required that the defendant swear to same, under article 283 Code Criminal Procedure.</p>

<p>Appeal from the District Court of Bosque. Tried below before the Hon. O. L. Lockett.</p> <p>Appeal from a conviction of aggravated assault and battery; penalty, a fine of $400 and twelve months confinement in the county jail.</p> <p>The facts .of this case are substantially contained in the opinion of the court upon former trial. See Warren v. The State, 51 Texas Crim. Rep., 598.</p>

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

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

<p>1. —Murder—Evidence—Threats.</p> <p>Upon trial for murder it was reversible error to permit a State’s witness to testify that some two or three weeks before the homicide, defendant stated to him that he was going to kill a Dutchman, or run him out of the country, there being no reference to the deceased.</p> <p>2. —Same—Charge of Court—Manslaughter.</p> <p>Upon trial for murder it was error in the court’s charge on manslaughter to include therein the clause, “on a provocation given by some other person than the party killed,” there being no evidence to justify such a charge.</p> <p>3. —Same—Insult to Female Relative—Adequate Cause.</p> <p>The law provides that insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide is adequate cause; and it was reversible error in a trial for murder in the court’s charge on manslaughter based upon evidence of insulting words or conduct by the deceased towards the defendant, to leave the jury to determine whether such words or conduct were adequate cause. Following Fuller v. State, 50 Texas Crim. Rep., 14, Stewart v. State, 52 Texas Crim,. Rep., 273.</p> <p>4. —Same—Charge of Court—Reasonable Doubt.</p> <p>Where upon trial for murder there was evidence requiring a charge upon the law of manslaughter, and the court failed to apply in his charge the doctrine of reasonable doubt to the issue of manslaughter, the same was reversible error.</p> <p>5. —Same—Charge of Court—Manslaughter—Adequate Cause—Insult to Fe-</p> <p>male Relative.</p> <p>See opinion of the court for charge on manslaughter based upon insulting language and conduct towards female relative of defendant by deceased which is held as erroneous. Brooks, Judge, dissenting.</p>

Tried below before the Hon. W. W. Helms. Appeal from a conviction of manslaughter; penalty, five years’ imprisonment in the penitentiary. The opinion states the case.

<p>1.—Assault to Eape—Charge of Court—Definition of Offense.</p> <p>Where upon trial of attempt to rape by force the court charged the jury that a mere invitation to have carnal intercourse would not constitute the offense unless the defendant attempted to hbve carnal knowledge of the party injured against her will and without her consent and refused requested charges practically the same in substance there was no error.</p> <p>2. —Same—Evidence—Opinion of Witness.</p> <p>Upon trial of attempt to rape there was no error in permitting prosecutrix to testify that she knew what defendant meant by a certain remark he made to her, the bill of exceptions not showing that she gave her opinion as to what the defendant did mean.</p> <p>3. —Same—Evidence—Plight—Guilty Knowledge.</p> <p>Where upon trial of attempt to rape the State was permitted to show that the father of prosecutrix stepped out of the yard with Ms gun to shoot a hawk, while defendant and another came down the road towards him, and that as soon as they saw him with a gun they wheeled their horses and started back in a gallop, there was no error, as the objection that the State had not shown that said party with a gun was related to prosecutrix or that he would do violence to the defendant on account of said crime, only went to the weight of the testimony and not to its admissibility.</p> <p>4. —Same—Evidence—Credibility of Witness—Cross-Examination.</p> <p>Upon trial of attempt to rape it was shown by the evidence that two of defendant’s witnesses by whom he attempted to prove an alibi had been with defendant on the night of the offense, that one of them left with the defendant and the other furnished the intoxicants with' which prosecutrix’s husband became drunk, there was no error in permitting State’s counsel on cross-examination to ask them the question that if they did agree with the defendant that they would hold said husband until defendant had raped his wife they would not admit it. This went to the credibility of the witnesses; besides the witnesses answering in the negative defendant could not complain.</p> <p>5. —Same—Evidence—Declaration of Third Party—Hearsay—Opinion of Witness.</p> <p>Where upon trial of attempt to rape the State was permitted to introduce a conversation between the witness and the county attorney not in presence and hearing of defendant, as to what they believed about defendant not coming to the examining trial, and whether he would wear the same hat that he wore on the night of the alleged offense; and that when he stepped from the train on the platform that the witness remarked, "There he is now with that same white hat that he had on the night the offense was committed and Mrs. S. will surely identify him now”; this was hearsay and the opinion of the wdtness, inadmissible and reversible error.</p> <p>6. —Same—Argument of Counsel.</p> <p>Upon trial of attempt to rape, the argument of State’s counsel that if the jury did not convict the defendant he would be liable to take the wives of the jurors from their homes for the purpose of committing this crime, was out of the record and improper.</p> <p>7. —Same—Definition of Offense.</p> <p>See opinion for the distinction between assault to rape and attempt to rape, as laid down in a former opinion of this court. -Following Warren v. State, 41 S. W. Rep., 635.</p>

<p>1. —Theft from Person—Evidence—Witnesses Beyond State’s limits.</p> <p>Upon trial of theft from the person where it appeared that State’s witnesses resided beyond the limits of the State, and their testimony had been taken in an examining trial, objection that such testimony contravened section 10 of the bill of rights, was not tenable if the same bad been otherwise admissible. Following Hobbs v. State, 53 Texas Crim. Rep., 71, 112 S. W. Rep., 308.</p> <p>2. —Same—Examining Trial—Evidence.</p> <p>Where upon trial of theft from the person it appeared that the- testimony of certain absent witnesses, who then lived beyond the limits of the State, and which testimony was reduced to writing in an examining trial related to another and different offense, the same was not admissible in evidence.</p>

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

The facts of this case appear in the opinion of the court on former appeal, 101 S. W. Rep., 315, as follows: A summary of the facts show that prosecutor, Beese, had married the divorced wife of appellant. Appellant had some three or four children by said wife, and they had been living with prosecutor and his wife in the town of Amarillo. It seems that some difference arose between prosecutor and his - wife, formerly Mrs. Prescott, and they had separated.

Tried below before the Hon. Ben H. Denton. Appeal from a conviction of manslaughter; penalty, three years and six months in the penitentiary. The opinion states the case.

<p>The opinion states1 the case.</p>

<p>1.—Swindling—Indictment.</p> <p>See allegations in opinion in an indictment for swindling held to be sufficient.</p> <p>8.—Same—Money—Creditor and Debtor.</p> <p>Upon trial for swindling where the evidence showed that the money which the defendant claimed was not paid out to him in cash but placed to his credit in the bank, there was no merit in the contention that he had not received the money.</p> <p>3. —Same—Charge of Court—Principal.</p> <p>Upon trial for swindling where the evidence showed that the defendant acted together with another and represented himself as a party to the alleged false representation; and both were present during the transaction and knew the unlawful intent, the court correctly charged on the law of principals.</p> <p>4. —Same—Sufficiency of Evidence—Principals.</p> <p>See opinion for facts held to be sufficient that defendant and another acted together and participated in the false representation by which they illegally obtained money from the party injured.</p>

<p>1.—Murder—Charge of Court—Manslaughter—Self-Defense.</p> <p>Where upon trial for murder the defendant was convicted of manslaughter, and the evidence showed that all the facts and attendant circumstances, viewed from the defendant’s standpoint, that the deceased was rather in the wrong, and the court so marshalled the facts in his charges on manslaughter and self-defense that the jury could predicate their finding of manslaughter or self-defense on the same state of facts. Held that the court’s charge on manslaughter was of such erroneous character that it may have brought about the conviction of manslaughter on facts that authorized an acquittal.</p> <p>2. —Same—Charge of Court—Threats.</p> <p>Where threats of the deceased are in evidence in ease of murder the criterion is that if the defendant believed the threats were made by deceased he may act upon them, it makes no difference whether they were in fact made; but upon trial for murder where the evidence showed that threats of the deceased were in fact made, although not legally correct, it could not harm the rights of the defendant that the court’s charge left the jury to find if the threats were in fact made.</p> <p>3. —Same—Evidence—Charge of Court—Weight of Evidence—Self-Defense.</p> <p>Upon trial for murder where the State introduced evidence that defendant swore on a former trial that he had had carnal intercourse with the wife of the deceased before the killing, but it was not shown for what purpose this testimony was introduced, the same may have been admissible; yet it was reversible error to limit this testimony by the court’s charge to the purpose of showing motive on part of the defendant, as defendant had. not forfeited by his said acts his right of self-defense; besides the charge singled out this one fact and was on the weight of the evidence. Following Terry v. State, 45 Texas Crim. Rep., 264.</p>

Tried below before the Hon. Richard I. Munroe. Appeal from a conviction of theft of a horse; penalty, two years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. A. S. Baskett, special judge. Appeal from a conviction, of murder in the first degree; penalty, imprisonment for life in the penitentiary. The opinion states the case.

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

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

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

<p>1. —Murder—Evidence—Bill of Exceptions—Defendant as a Witness.</p> <p>Where upon appeal from a conviction of felony the record showed by the explanations of the trial court that the defendant had not in fact excepted to any rulings of the court with reference to the admission of testimony to prove defendant’s failure to testify on examining trial, the same could not be considered; although had a proper exception been made at the time to such testimony the same would have been inadmissible.</p> <p>2. —Same—Evidence—Contradicting Testimony. „</p> <p>Where upon trial for murder illegal testimony was introduced with reference to defendant’s failure to testify in the examining trial but no exception was made "thereto, and the defendant offered to use this illegal testimony as a basis for introducing testimony to contradict it, there was no error in refusing to permit him to do so.</p> <p>3. —Same—Charge of Court—Murder—Manslaughter.</p> <p>Where the defendant was convicted of manslaughter, he could not complain of the court’s charges on. murder in the first and second degree.</p> <p>4. —Same—Manslaughter—Self-Defense—Charge of Court.</p> <p>Upon trial for murder where defendant’s evidence showed that the deceased grabbed at defendant’s pocket hook and attempted to strike him with a knife when defendant shot and killed him, the court erred in his charge on this evidence that if defendant attempted to retain possession of his property and killed the deceased in order to do so, he would be guilty of manslaughter. The defendant had the right under this evidence to act in self-defense and to kill the deceased to protect his person and property if necessary.</p> <p>5. —Same—Charge of Court—Manslaughter.</p> <p>Where upon trial for murder there was evidence that the deceased made an attack upon the defendant with a knife to rob him, the defendant had the right if his person became in danger of death or serious bodily injury to kill the deceased; but if defendant had no apprehension that the deceased was going to rob him and became angered, etc., rendering his mind incapable of cool reflection and he killed deceased he would be guilty of manslaughter.</p> <p>6. —Same—Charge of Court—Words and Phrases.</p> <p>Upon trial for murder where the defense was robbery, self-defense and manslaughter there was no error in the court’s charge that if the jury acquitted the defendant altogether they would find the defendant not guilty. The word "altogether” was superfluous.</p>

<p>1.—Theft—Charge of Court.</p> <p>Where the main charge of the court covered the requested charges which were refused, there was no error.</p> <p>2. —Same—Charge of Court—Reasonable Explanation.</p> <p>Where upon trial for theft the charge of the court was in response to that portion of the testimony wherein defendant claimed thiat his oodefendant turned the property over to him, etc., there was no error.</p> <p>3. —Same—Receiving Stolen Property—Accomplice—Invited Error.</p> <p>See opinion on accomplice’s testimony and receiving stolen property and the court’s charge thereon as requested by the defendant, which was erroneous as to accomplice’s testimony, but being invited error the defendant could not complain.</p> <p>4. —Same—Jury and Jury Law—Drawing of Jury.</p> <p>Where upon trial of theft the defendant complained of the organization of the jury on the ground that the clerk of the District Oourt of Galveston County, and not the clerk of the Criminal District Court drew the jury, there was no error. Following Lee v. State, decided at present term.</p> <p>5. —Same—Sufficiency of Evidence—Declaration of Codefendants.</p> <p>Where upon trial for theft against two defendants who were jointly indicted and tried for the same offense, the evidence showed that both took the property alleged to have been stolen and divided the spoils, and subsequently confessed thereto, there was no merit in the contention of one defendant that the only evidence connecting him with the original taking was that of his codefendant.</p> <p>6. —Same—Accomplice—Corroboration.</p> <p>Where upon trial of theft of two defendants jointly indicted, the evidence showed that they were joint owners or in control of the livery stable where the buggy of the injured parties was kept from which the alleged stolen property was taken, and that they were discovered in possession thereof, and the court charged upon circumstantial evidence, no corroboration of the testimony of one defendant who charged the other with the theft was necessary.</p> <p>7. —Same—Charge of Court—Voluntary Return of Stolen Property.</p> <p>Where upon trial for theft a defendant was arrested for the theft of certain stolen property, before he made any return thereof, the same could not be regarded as a voluntary return, and no charge thereon- was necessary.</p> <p>8. —Same—Charge of Court—Hearsay—Declaration of Co defendant.</p> <p>Upon tr 1 for theft where the record showed that there was no exception made to the statements of a codefedant not made in the presence of defendant there was no error in the court’s refusal to charge that such statements should be disregarded by the jury.</p> <p>9. —Same—Requested Charge.</p> <p>Where upon appeal from a conviction of theft of two defendants, one of them complained that the court refused to give his special charge submitting the question of defendant’s presence and his acting together with his codefendant at the original taking, and the record showed that said charge was given, there was no error.</p> <p>10. —Same—Charge of Court—Finding Stolen Property.</p> <p>Where upon trial for theft there was no evidence that the alleged stolen property was lost, but was accidentally left in a buggy belonging to the prosecuting witness at a livery stable controlled by the defendants, there was no error in the court’s refusal to charge that if the property was lost and one of defendants found it he could not be convicted of theft, etc. Following Statum v. State, 9 Texas Crim. App., 273.</p> <p>11. —Same—Charge of Court—Harmless Error.</p> <p>Where upon trial for theft of two joint defendants, the evidence showed that they knew at the time when they took the alleged stolen property from the buggy of the prosecuting witness whose property it was, there was no error in the court’s charge to the effect that when said defendants so took said money they knew the same to be the property of prosecuting witness, or could have known by reasonable inquiry that the same was his, etc.; besides even if said charge was not properly framed the same could not have injured the rights of the defendant, and was harmless error.</p> <p>13.—Same—Charge of Court—Accomplices—Corroboration.</p> <p>Where upon trial for theft of two joint defendants, both testified in the case, each swearing that the other committed the theft, it was not necessary to charge that one accomplice could not corroborate another.</p>

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

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

<p>1.—Murder—Continuance—Insult of Female Relative—Threats.</p> <p>Where upon trial for murder, on defendant’s second application for continiuance, it was shown that he proposed to prove by the absent witness that on the night before the alleged homicide the deceased was discovered in the room of defendant’s sister, and that immediately before the killing the absent witness told defendant that deceased had been having eamal intercourse with said sister, and that deceased had threatened to kill defendant; the defendant and his sister both being the children of the absent -witness and of tender years; that defendant was the oldest son and 16 years of age, etc., the continuance should have been granted not on the issue of manslaughter but to strengthen defendant’s plea of self-defense, and this although defendant testified that said threats were communicated to him, by the absent witness before the first difficulty which led to the homicide.</p> <p>2. —Same—Statutes Construed.</p> <p>The clause of the statute in reference to continuances, “that the testimony can not be procured from any other source known to the defendant” has no relation to cases where testimony is sought of facts which rest alone in the breast of the absent witness and the defendant himself; this "louse relates to the testimony of some other person than defendant himself.</p> <p>3. —Same—Probable Truth of Absent Testimony.</p> <p>Where upon trial for murder the testimony of a witness who testified upon trial lent strong probability to the theory that the testimony of the absent witness was probably true, the court could not deny the defendant the right to have his case passed upon by the jury in- the light of said absent testimony, although he testified to the same facts.</p> <p>4. —Same—Evidence—Dying Declarations.</p> <p>The rule is universal that before dying declarations can be admitted in evidence it is essential, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death, hut it is not necessary that they should be stated at the time, to be so made. It is enough, if it satisfactorily appears in any manner, that they were made under that sanction.</p> <p>5. —Same—Case Stated.</p> <p>Where upon trial for murder the evidence showed that the wound on deceased was a horrible one; that he had lain for more than an hour in the wagon where he was shot; that upon arrival of the physician he was told that he could not live and that he was going to die and if he had any statement to make to make it; and that thereupon without dissent or suggestion that he believed himself other than in a dying condition made the statement offered in evidence there was no error.</p>

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

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

Tried below before the Hon. E. W. Simpson. Appeal from a conviction of theft of a hog; penalty, four years imprisonment in the penitentiary. The opinion states the case.

The State’s testimony was substantially that defendant and deceased were at a negro dance; the deceased was killed about ten o’clock in the night; that defendant and deceased were out a-t the barn gambling at “Monte” in the early part of the night; they had no trouble or words between them out there; defendant won a quarter from the deceased on the game; deceased said he did not have the money to pay and defendant said he had better pay him; no words were heard betwe'en…

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

<p>1. —Murder—Self-Defense—Provocation—Explanation.</p> <p>Where upon trial for murder the theory of the State was that the defendant shot the deceased without legal provocation, and that of defendant that the deceased started in the direction of his house as if to get a gun and that defendant asked him to stop and when deceased did not respond shot at him to strike him in the leg; there also being testimony as to a previous difficulty, the court was not required to charge on self-defense. Following Lynch v. State, 24 Texas Crim. App., 350, and other cases.</p> <p>2. —Same—Charge of Court—Intent to Kill.</p> <p>Where upon trial for murder the evidence showed that defendant shot deceased either for the purpose of killing him or inflicting upon him serious bodily injury, there was no error in the court’s charge submitting murder in the second degree and manslaughter.</p> <p>3. —Same—Charge of Court—Provocation.</p> <p>Upon trial for murder where there was no evidence of insulting conduct to ia female relative, and if there was any legal provocation that it arose at the time of the difficulty, there was no error in the court’s charge that the provocation must arise at the time of the difficulty and must not be the result of a former provocation.</p> <p>4. —Same—Charge of Court—Cooling Time—Manslaughter.</p> <p>Where upon trial for murder there was evidence of an assault by deceased upon defendant with a knife and rock during a former altercation which occurred some two hours before the homicide, and the court charged upon manslaughter and cooling time upon this evidence; and the evidence further showed that the defendant shot at deceased deliberately at the time he killed him either with intent to kill or to inflict serious bodily injury, the court’s charge on manslaughter was favorable to defendant and he could not complain.</p> <p>5. —Same—Charge of Court—Self-Defense.</p> <p>Where upon trial for murder the evidence showed that some two hours before the homicide there occurred an altercation between defendant ' and deceased; that thereafter the defendant rode three miles, changed his horse, procured a gun, returned within a quarter of a mile to where the deceased was in the habit of milking his cow, hitched his horse and walked to the cow-pen, found him there, _ called him up from behind and inflicted a wound upon him from which he died in thirty minutes, the issue of self-defense was not raised, and even manslaughter was not in the case.</p>

<p>1.—Murder—Statement of Facts.</p> <p>Where upon appeal from a conviction oi murder, the record showed that on request of appellant a twenty-day order was granted to prepare and file statement of facts and hills of exception, and the State moved to strike out statement of facts because not filed within said twenty days. Held that under the Act of the Thirtieth Legislature authorizing thirty days in which to file statement of facts, appellant was not confined J the time requested by him for filing such statement of facts.</p> <p>Í2.—Same—Continuance—Cumulative Testimony.</p> <p>Where upon trial for murder the testimony of the absent witness was merely cumulative, there was no error in overruling the application for continuance.</p> <p>3. —Same—Charge of Court—Conspiracy—Weight of Evidence.</p> <p>Where upon trial for murder the court charging upon conspiracy, left it for the jury to determine whether or not there was a conspiracy existing or an agreement to kill the deceased, and that point being reached favorably to the State, then, they might consider anything said or done by a co-conspirator which was in furtherance of the common design, such charge was not on the weight of the evidence.</p> <p>4. —Same—Charge of Court—Impeaching Evidence.</p> <p>Where upon trial for murder the court correctly limited the impeachment to the credibility of the attacked witness and the weight to he given to the testimony of such witness, there was no error.</p> <p>5. —Same—Evidence—Husband and Wife—Codefendant.</p> <p>While the State can not use the wife as a witness against the husband, or against a eodefendant while her husband is still under indictment; yet when such testimony comes, at the instance of the defendant he can not complain.</p>

<p>1. —Murder—Charge of Court—Manslaughter—Self-Defense.</p> <p>Where upon trial for murder the evidence showed an actual attack by the deceased upon the defendant juist before the homicide, a charge of the court on manslaughter, which was based upon a state of facts of an actual attack which justified the defendant in acting in self-defense was reversible error.</p> <p>2. —Same—Charge of Court—Self-Defense.</p> <p>Where upon trial for murder the evidence justified the court iu basing a charge on self-defense on an actual attack by the deceased upon the defendant, there was no- error.</p> <p>3.—Same—Evidence—Confession—Defendant as a Witness.</p> <p>Where upon trial for murder the defendant testified fully in regard to the facts of the case, and the ease was one not alone based upon the statement or confession of the defendant, there was no error—the State having been - permitted to introduce in evidence the defendant’s statement through some of the witnesses as to how the transaction occurred—in. the court’s failure to charge that the State would be required to disprove the defendant’s statement.</p>

Tried below before the Hon. J. K. P. Gillaspie. Appeal from a conviction of murder in the first degree; penalty, death. The opinion states the case.

<p>1.—Murder—Continuance—Question of Fact.</p> <p>Where upon trial for murder, the application for continuance -showed proper diligence and the record did not suggest that the witnesses were absent by the procurement or consent of the defendant, it was error on a contest of said motion to permit the State to contradict the testimony of said absent witnesses by introducing witnesses for that purpose upon which the court based a conclusion that said absent testimony was probably untrue; this was a question for the jury and the continuance should have been granted.</p> <p>2. —Same—Continuance—First Application.</p> <p>Where upon trial for murder the State’s theory was that the defendant shot deceased without legal provocation as he was about to enter a railway train, the court erred in not granting a first motion for continuance in which the defendant alleged that he expected to prove by the testimony of the absent witnesses that shortly before the homicide an altercation occurred between defendant and deceased in which deceased drew a knife, and when he left, said he would see defendant later, and that at the time defendant fired upon deceased the latter came rushing up with others as the defendant was boarding the train and deceased had a pistol, and that some one hollered “Look out they are going to shoot,” and defendant fired, etc., this testimony being material and defendant having shown diligence to procure the same.</p> <p>3. —Same—Charge of Court—Adequate Cause.</p> <p>See opinion for charge of court in submitting the law of manslaughter and adequate cause.</p> <p>4. —Same—Charge of Court—Too Restrictive—Defendant’s Standpoint.</p> <p>Where upon trial for murder there was evidence as to a former altercation some time before the homicide between the defendant and the deceased, the court erred in instructing the jury that they could look to such previous altercations as an incident to illustrate and throw light upon the motives, meaning, intent and purposes with which the parties acted in the alleged fatal meeting, as the defendant could not be bound by the intentions of the deceased, but had the right to act upon apparent danger from his standpoint.</p>

<p>Gaining—Jury and Jury Law—Disqualification—Exception to Juror—Too Late after Trial.</p> <p>Where upon trial for exhibiting a gaming bank, a juror whose name had been stricken from the list by defendant, but nevertheless by mistake served on the jury, which fact became known to defendant’s counsel during the trial, an objection upon this ground came too late in the motion for new trial; besides the juror was not disqualified. Following Munson v. State, 34 Texas Crim. Rep., 498.</p>

<p>1.—Aggravated Assault—Indictment.</p> <p>Where upon trial for aggravated assault the indictment was in approved form there was no error.</p> <p>8.—Same—Sufficiency of Evidence.</p> <p>Where upon conviction for aggravated assault the evidence sustained the verdict of guilty of aggravated assault, the same will not be disturbed.</p> <p>3. —Same—Charge of Court—Written Charge.</p> <p>Where upon conviction for aggravated assault there was no bill of exceptions to the court’s failure to give a written charge, the complaint that the court should have given a charge- in writing can not be considered on appeal.</p> <p>4. —Same—Waiver—Practice in District Court.</p> <p>See opinion for court’s criticism of counsel to waive a right of his client and then ask' for reversal on Ms own w&iver.</p> <p>5. —Same—Bill of Exceptions—Evidence.</p> <p>Objection to testimony can not be considered on appeal, unless a bill of exceptions was reserved at the time.</p>

<p>1. —Carrying Pistol—Charge of Court—Misdemeanor—Verbal Charge.</p> <p>Where upon trial of unlawfully carrying a pistol, no objection was made to the oral charge of the court a.t the time or during trial, and the objection to the court’s verbal charge was made for the first time in the motion for new trial, there was no error.</p> <p>2. —Same—Modification of Requested Charge.</p> <p>Where upon trial of unlawfully carrying a pistol the defendant requested a charge which the court modified and submitted to the jury, without exception by the defendant at the time, there was no error.</p> <p>3. —Same—Weight of Evidence.</p> <p>See opinion for requested charge modified by the court which is held not to be on the weight of the evidence.</p> <p>4. —Same—Charge of Court—Weight of Evidence—Deflecting from Course of Travel.</p> <p>Upon trial of unlawfully carrying a pistol where the evidence showed that defendant purchased the pistol to take home but on Ms way went into a saloon and engaged in trouble while having the pistol with him, etc., the court’s charge that appellant .had a right to purchase the pistol and carry it home hut that this would not be the case if he diverted Ms line of travel or stopped by the wayside and engaged in an unlawful act, etc., was not on the weight of the evidence.</p>

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

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

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

<p>Defacing Public Eecord—Habeas Corpus—Separate Offenses.</p> <p>Where relator was charged with maliciously changing, altering, defacing, and injuring a public record containing the registration of a physician’s certificate or license in two separate and distinct acts, and by defacing two separate names of physicians and inserting in lieu thereof two separate names, and was indicted for each act as a separate offense, he could not be released on a pending indictment on habeas corpus because he had been acquitted on one indictment.</p>

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

Tried below before the Hon. M. E. Smith. Appeal from a conviction of robbery; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. W. B. Powell. Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Seduction—Charge of Court—Definition of Offense.</p> <p>Under the penal law of Texas an unchaste woman can not be seduced; in order to be seduced she must be led away from the path of virtue by a promise of marriage, and the carnal intercourse must occur by virtue - of the promise of marriage.</p> <p>2. —Same—Charge of Court—Requested Charges.</p> <p>Where upon trial for seduction the court charged that if the jury believed that the prosecutrix had intercourse with another or others than the defendant prior to such intercourse with the defendant (if she had intercourse with defendant)' or if they had a reasonable doubt as to whether she did or not to find the defendant not guilty; and did not apply his charges fully to the facts of the case, as requested by special charges of the defendant, the same was reversible error.</p> <p>8.—Same—Requested Charges.</p> <p>See opinion for requested charges in a ease of seduction which should have been given to the jury.</p>

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

<p>1.—Illegally Marking Hog—Verdict—Amendment—Practice.</p> <p>Where upon trial for theft of a hog and illegally marking same, contained in two separate counts, the court submitted the one for illegally marking, and the jury returned a verdict finding the defendant guilty as charged, the verdict was responsive to the count submitted; although- there was no error in amending the verdict so as to show that the same was based in the count in the indictment charging illegal marking. This was correct practice.</p> <p>2. —Same—Refusing Requested Charge.</p> <p>Where upon trial for illegally marking hog the court in his main charge properly submitted the issue of good faith on part of the defendant, there was no error in refusing a requested charge on the same issue.</p> <p>3. —Same—Indictment—Different Counts—Duplicitous Pleading.</p> <p>Where the indictment charged theft of a hog in one count and illegally marking a hog in another count, and only the latter count was submitted to the jury, the question of duplicity of the indictment was not involved, and it is not required to pass upon this question.</p>

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

<p>Burglary—Indictment—Statutes Construed—Private Residence—Night-Time.</p> <p>Upon trial for burglary of a private residence in the night-time, where the indictment failed to directly charge that the party controlling and occupying the house alleged to have been burglarized occupied the house as a residence, or that Ms family did so, the same was- insufficient. Following Jones v. State, 50 Texas Crim. Rep., 100; Johnson v. State, 50 Texas Crim. Rep., 115.</p>

Tried below before the Hon. L. B. Hightower. Appeal from a conviction of theft of a hog; penalty, two years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. R I. Munroe. Appeal from a conviction of manslaughter; penalty, three years imprisonment in the penitentiary. The opinion states the case.

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

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

<p>1. —Murder—Evidence—Tracks.</p> <p>Upon trial for murder where the State’s witness testified to various tracks, and that the grass was mashed down near the scene of the killing, such testimony was admissible regardless of whether it subsequently connected defendant with the'commission of the crime.</p> <p>2. —Same—Evidence—Cross-Examination.</p> <p>Where upon trial for murder defendant’s counsel asked the witness whether he knew the place where defendant claimed he stood when he fired the shot, and the witness answered that he did; and he was then asked whether he picked up that cartridge at that place, and the witness answered that he did, and defendant’s counsel did not ask an opportunity to recross-examine the witness as to bis means of information about the exact locality, he could not ask that the answer be excluded because it was adverse or damaging.</p> <p>3. —Same—Practice in District Court—Jury and Jury Law—Presence of Defendant—Statutes Construed—Waiver.</p> <p>Upon trial for murder it was reversible error to permit the reproduction of certain testimony on request of the jury, in the absence of the defendant who was on bail; and this, although his counsel waived defendant’s presence and said that they would not take any advantage of defendant’s absence, and although defendant was voluntarily absent; the first section of the Act of the Thirtieth Legislature requiring his personal presence at the trial.</p> <p>4. —Same—Conflict of Statute.</p> <p>Section 1 of the Act of the Thirtieth Legislature chapter 19, p. 31 requiring the personal presence of the defendant at a trial for felony, controls section 2 of the same act which provides where defendant is out on bail when his trial commences the same shall not thereby be considered as discharged until the jury shall return into court a verdict of guilty, etc.; the defendant must nevertheless be personally present during the trial in all felony eases, and no proceeding can be had in his absence. Distinguishing Choice v. State, 52 Texas Crim. Rep., 285.</p> <p>5. —Same—Misconduct of Jury—Former Trial—Defendant as a Witness—Defendant’s Failure to Testify.</p> <p>Where upon trial for murder the jury in their deliberations used - a prior verdict as a predicate for their verdict, and alluded to defendant’s failure to testify, and placed defendant’s punishment at a higher term of years as in the former verdict, the same was reversible error.</p> <p>6.—Same—Evidence—Defendant as a Witness.</p> <p>Where upon trial for murder the record showed that defendant testified on a previous trial of his case, his said testimony connecting him with the commission of the offense of which he was on trial was admissible in evidence.</p>