55 Tex. Crim.

Volume 55 — Texas Criminal Reports

188 opinions

55 Tex. Crim. 1Eiley v. State (1908)
The opinion states the case.
55 Tex. Crim. 3Moore v. State (1908)
The opinion states the case.
55 Tex. Crim. 6Knuckles v. State (1908)
Tried below before the Hon. J. K. P. Gillaspie. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. The opinion states the case,
55 Tex. Crim. 9Brown v. State (1908)
The opinion states the case.
55 Tex. Crim. 15Henderson v. State (1908)
The opinion states the case.
55 Tex. Crim. 18O'Quinn v. State (1908)
1. —Theft of Hogs—Evidence—Declaration of Third Parties. Where upon trial for theft of hogs two other parties were separately indicted for the same offense, testimony as to a conversation, between these other parties and others, after the commission of the offense, and in the absence of the defendant was inadmissible in evidence. 2. —Same—Evidence—Acts of Third Party. Upon trial for theft of hogs testimony with reference to acts of third parties in the absence of the defendant was inadmissible. 3. —Same—Evidence—Conspiracy—Declaration of Third Party. Upon trial for theft of hogs it was error to admit in evidence the declaration of a third party to engage in the theft of the alleged owner’s hogs, it not having been sufficiently shown that defendant heard this declaration and assented thereto, or that a conspiracy had been shown. 4. —Same—Charge of Court—Response. Where upon trial for theft of hogs it was not shown that a certain conversation between third parties to the effect that they would steal the) hogs in question was heard by the defendant or assented to by him or whether the same was directed to him, it was error in the court’s charge to assume as if it were an issue affirmed on one side and denied on the other, and that if such conversations reasonably called for some denial or reply by defendant that the jury could consider it. 5. —Same—Charge of Court—Principals—Presence of Defendant. Where upon trial for the theft of hogs, other parties were separately indicted for the same offense, and the theory of the State was that the defendant and his codefendants acted together in the commission of the offense, which the defendant denied on the witness stand, and the evidence was altogether circumstantial, and it was not shown that defendant was present at the taking or killing of the hogs, the court erred in giving the law on principals that if the parties were acting together on a previously formed understanding, then it was not necessary that defendant should be present at the taking of the hogs in order to constitute him a principal. 6. —Same—Principal—Accomplice. Upon trial for theft of hogs where others were separately charged for the same offense, and the theory of the State was that they all acted together, it was necessary to show, in order to make defendant a principal, that he was either keeping watch or doing something that the statute itself makes him a principal, or that he was present and assisted in the taking of the hogs. If he advised and encouraged or furnished means in advance he would _ be an accomplice but not a principal; nor would a subsequent connection with the stolen property make him such.
55 Tex. Crim. 27Holland v. State (1908)
1. —Murder—Evidence—Threat. Where upon trial for murder the threat, if made by the defendant under the circumstances of this case, was not directed at the deceased, nor even at any class of people which included the deceased; it being against a brother, (defendant not having a brother) and not against the deceased, who was a sister, was inadmissible in evidence. Following Godwin v. State, 38 Texas Crim. Rep., 460, and other cases. 2. —Same—Charge of Court—Negligent Homicide. Upon trial for murder where the evidence for the State showed an intentional killing and shooting, and that of the defendant showed it to be accidental; that deceased was standing behind the door on the inside of the house and not visible, and that another person was standing in the door and declined to let him enter; that defendant shot through the door and killed his sister, with whom he had been quarreling- a little while before, there was no error in the court’s charge that the killing would not be negligent homicide but murder of the first or second degree; and this although the party standing in the door was included in the charge as one of the parties against whom defendant’s intent to kill might have been directed.
55 Tex. Crim. 30Blocker v. State (1908)
1. —Murder—Evidence—Imputing Crime to Another. Where upon trial for murder the evidence was wholly circumstantial and the motive of another, who had not been acting together in the homicide' with the defendant, was as strong on his part as it was on the part of the defendant, it was error in refusing to admit testimony that this third party had declared that he killed deceased. Following Dubose v. State, 10 Texas Crim. App., 230. 2. —Same—Threats—Evidence. Where upon trial for murder an objection was made to a question by the State’s counsel on cross-examination of defendant whether he did not say that he was a nephew of a certain notorious character, and that he would kill deceased if ha did not quit coming to see a certain negro woman about whom there was a rivalry between defendant and deceased, and the question was not answered; but on motion for a new trial defendant complained that this question connecting defendant with this notorious character inflamed the mind of the jury, etc. Held, that if the threat was made before the homicide it was admissible in evidence. 3. —Same—Charge of Court—Self-Defense—Character and Disposition of Deceased—Harmless Error. Where upon trial for murder there was some evidence as to the character and disposition of the deceased, though not cogent, and perhaps no evidence of the relative strength of the parties, unless it be found in the fact that they knew each other well etc., and the court charged upon this phase of the case, the question was not of sufficient moment to require a reversal; but trial courts in this as other cases are reminded that where matters of this sort are not in evidence before the jury that it is well enough to "omit them from the charge. 4. —Same—Imputing Crime to Another—Charge of Court. Where upon trial for murder the evidence showed that another party was in position to be the slayer of the deceased, as well as circumstances that would put it beyond probability that defendant- did it, and the court charged that if it was as probable that the other party did the killing as that the defendant did it to acquit the defendant, there was no error.
55 Tex. Crim. 36Schwartz v. State (1908)
1. —Burglary—Principals—Charge of Court. Where upon trial for burglary the evidence showed that there were two separate entries of the house in question during the first of which the defendant was present and entered the house with intent to steal but did not secure the property, and that at the second entry of the house during which the property was taken defendant was not present. Held, that the defendant could be guilty of burglary under the facts constituting the first entry but would not be guilty under the facts of the second entry. 2. —Same—Charge of Court—Accomplice—Corroboration. Upon trial for burglary where the State made out its case by two accomplices the court should submit a charge that one accomplice could not corroborate another. 3. —Same—Impeaching Testimony—Charge of Court. Upon trial for burglary where the defense introduced testimony to show that a State’s witness made different statements than that given in his testimony upon trial it was reversible error to charge the jury that said impeaching testimony should absolutely disprove and falsify the testimony of said State’s witness. Following Benson v. State, 11 S. W. Rep. 402; Schwartz v. State, 53 Texas Crim. Rep., 449, 111 S. W. Rep., 399.
55 Tex. Crim. 39De Leon v. State (1908)
1. —Assault to Murder—Former Conviction—Practice in District Court. Where a trial is had a second time in the same court and on the same indictment, no plea of former jeopardy or former conviction need be pleaded, because the whole record is before the court. Following Robinson v. State, 21 Texas Crim. App., 160. 2. —Same—Grade of Offense—Acquittal. Where upon trial for assault with intent to murder the record showed that the defendant had been convicted upon a former trial of aggravated assault in the same case, he was by law acquitted of assault with intent to murder and could not thereafter be legally put on trial for the offense of assault with intent to murder.
55 Tex. Crim. 42Robinson v. State (1908)
Theft of Horse—Evidence—Declaration by Defendant—Other Offense—Confession. Upon trial of theft of a horse, where it was shown that while the defendant was under arrest for another offense he made statements with reference as to how he obtained the horse for the theft of which he was being tried, the same were not admissible in evidence. Distinguishing Pate v. State, 46 Texas Crim. Rep., 483; Mathis v. State, 39 Texas Crim. Rep., 349, 47 S. W. Rep., 464. Following Neiderluck v. State, 21 Texas Crim. App., 320.
55 Tex. Crim. 43Carter v. State (1908)
1.—Forgery—Indictment—Corporation—Co-Partnership. Upon trial for forgery where the defendant was not charged with a forgery of an instrument purported to be executed by a certain railway company, or that said company was the beneficiary in the instrument or the party intended to be injured or defrauded, there was no necessity to allege partnership or corporation, 2. —Same—Purport Clause—Tenor Clause—Variance. Upon trial for forgery where the indictment alleged an instrument executed by Yard in the purport clause and Yard, Paymaster, in the tenor clause, Yard not being the party intended to be injured or defrauded, there was no variance, the use of the word paymaster being" simply descriptive. The name of the injured party need not be alleged. 3. —Same—Endorsement—Payee. The fraudulent indorsement of the name of the payee upon an existing valid negotiable note is forgery by alteration under article 531 penal code. Following Strang v. State, 32 Texas Crim. Rep., 319. 4. —Same—Jury and Jury Law, Where upon trial for forgery the jury was selected under the provisions of the Act of the Thirtieth Legislature there was no error. 5. —Same—Verdict—Forgery. Where upon trial for fraudulently altering a certain instrument by entering thereon a fraudulent indorsement, the jury found the defendant guilty of altering an instrument in writing, the objection that the verdict was a special one and did not state the essential ingredients of the offense and was void, was untenable.
55 Tex. Crim. 47Taylor v. State (1908)
The opinion states the case.
55 Tex. Crim. 50Gallagher v. State (1908)
The opinion states the case.
55 Tex. Crim. 54Nix v. State (1908)
Local Option—Charge of Court—Circumstantial Evidence—Sale. Where upon trial of a violation of the local option law the evidence was entirely circumstantial, the charge of the court did not give the law of circumstantial evidence but simply charged the jury that a sale could be proved by circumstances etc., the same was reversible error.
55 Tex. Crim. 55Long v. State (1908)
1.—Theft—Evidence—Conspiracy—Declaration of Co-Conspirators. Where. upon trial for theft a conspiracy was proved between defendant and others by circumstances as well as the acts of the parties, testimony so closely related to the immediate act of taking that it was clearly a part of the transaction of the theft was admissible, although defendant was not immediately present but was' so near by and was so connected with the theft that the acts and declarations of his co-conspirators were admissible in evidence as a part of the immediate transaction, and there was no errori 2. —Same—Evidence—Withdrawal of Illegal Testimony. Where upon trial for theft, testimony was introduced which included an opinion of the witness, and there was no exception at the time to the same, and the court withdrew that part of the testimony in regard to the opinion of the witness, there was no error. 3. —Same—Evidence—Examining-Trial Testimony—Predicate. Where upon trial for theft a sufficient predicate had been laid as to the fact that the absent witnesses lived beyond the limits of the State, there was no error in admitting in evidence the testimony of these absent witnesses given under due form of law in the examining trial of the defendant of the offense upon which he was then on trial. Following Hobbs v. State, 53 Texas Crim. Rep., 71. 4. —Same—Charge of Court—Contemporaneous Crime. Where upon trial for theft the evidence showed that the defendant and others were blocking up the way of the injured party of their entrance into a railway car, while other codefendants were behind crowding from that direction and that under these circumstances the property was stolen, there was no error in the court’s failure to charge the purpose for which the testimony introduced in reference to a contemporaneous offense was introduced, as it was all one and the same transaction.
55 Tex. Crim. 62Mitchell v. State (1908)
The opinion states the case.
55 Tex. Crim. 65Williams v. State (1908)
The opinion states the case.
55 Tex. Crim. 69McMeans v. State (1908)
The opinion states the case.
55 Tex. Crim. 73Wyatt v. State (1908)
The opinion states the case.
55 Tex. Crim. 75Hawkins v. State (1908)
local Option—Sufficiency of Evidence—Prescription—Subterfuge—Sale. Where upon trial of a violation of the local option law the defendant had secured a prescription for whisky for his own personal use, and procured whisky for another for pay oh same, he was guilty of a sale of whisky, although the party receiving the whisky acted for another; the whole transaction being but a subterfuge.
55 Tex. Crim. 77Abernathy v. State (1908)
Swindling—Insufficiency of Evidence. Where upon trial of swindling the evidence for the State failed to support some of the allegations in the indictment and to establish the falsity of the alleged representations of the defendant, the conviction could not be sustained; the court having submitted the case to the jury on all of the false pretenses as alleged in the indictment.
55 Tex. Crim. 79Jackson v. State (1908)
1. —Murder—Attorney and Client—Witness under Rule. Where upon trial for murder it appeared that a certain attorney was leading counsel in defendant’s case, it was reversible error to place him under the rule during the entire trial as a witness; and this although the defendant had other able counsel to defend him fn the case. The Bill of Rights guarantees that when the accused is placed 'upon his trial he shall have the right to be heard by his counsel and himself, and he can not oe deprived of the advantage of his selected counsel by placing him under the rule as a witness. 2. —Same—Evidence—Dying Declarations—Charge of Court—Predicate. Upon trial for murder where the predicate laid for the introduction of a dying declaration did not show that the same was voluntarily made and there was an issue in regard to the proper predicate for the admission in evidence of said dying declarations, the same should have been submitted to the jury as a question of fact, with instructions that the same Should be disregarded in the absence of a proper predicate. 3. —Same—Evidence—Parts of Acts and Declarations. Where upon trial for murder the State was permitted to show that the defendant was at the home of the deceased on the morning of the day of the alleged abortion, and this testimony was relied upon by the State as criminative, it was error under the terms of article 791 Code Criminal Procedure to refuse testimony on the part of the defendant to show his innocent intention in making the visit to the house of the deceased. Following Davis v. State, 3 Texas Crim. App., 91; Pratt v. State, 53 Texas Crim. Rep., 281, and other cases. 4. —Same—Abortion—Murder—Charge of Court. Where upon trial for murder superinduced by an abortion by willfully inserting into the womb of deceased an instrument to the grand jurors unknown, the evidence showed that the deceased died of blood poisoning which may have been caused by an abortion by different means used, and that the defendant denied that he had performed any operation whatever upon the deceased, it was reversible error in the court’s charge to submit to the jury several of the means by which the abortion could have been produced and omit to charge upon one of the means which would have exculpated the defendant. 5. —Same—Charge of Court—Murder in First Degree. Where upon trial for murder the defendant was convicted of murder in the second degree, this eliminated murder in the first degree, which thereby passed out of the case and the charge thereon need not be considered on appeal. 6. —Same—Charge of Court—Alibi. Where upon trial for murder there was no testimony with reference to an alibi the court should not have submitted this issue, as under the facts it was injurious to the rights of the defendant. 7. —Same—Charge of Court—Words and Phrases. Upon trial for murder superinduced by an abortion, which the defendant denied but was nevertheless convicted of murder in the second degree, it was error in-the court’s charge to attempt to define words and phrases under which defendant could be justified or excused or his punishment mitigated; the court, not submitting the law under which an abortion was justifiable, and the evidence not raising any issue which justified the charge of the court. 8.—Same—Constitutional Law—Offense of Abortion. The offense of abortion as defined by statute is not unconstitutional and void, upon the ground that the statute does not sufficiently define such offense.
55 Tex. Crim. 90Gray v. State (1908)
The opinion states the case.
55 Tex. Crim. 113Sowers v. State (1908)
The opinion states the case.
55 Tex. Crim. 114Vanhooser v. State (1908)
Tried below before the Hon. Sil Stark. Appeal from a conviction of an assault; penalty, a fine of $25. The opinion states the case.
55 Tex. Crim. 119Malone v. State (1908)
Aggravated Assault—Sufficiency of Evidence—Prosecuting Witness—Excessive use of Morphine. Where upon appeal from a conviction of aggravated assault it was contended that the prosecuting witness was an excessive user of morphine and that his memory was thereby so impaired that he was altogether irresponsible, but the record showed that his testimony was supported to some extent by the testimony of other witnesses, and it was not shown that his testimony was wholly unworthy of belief, the conviction is sustained.
55 Tex. Crim. 120Thompson v. State (1908)
1. —Assault to Murder—Evidence—Res Gestae. Upon trial for assault with intent to murder there was no error in admitting testimony that defendant broke up the dance, etc. which led up to the difficulty and was part of the res gestae. 2. —Same—General Reputation for Truth and Veracity. Where witnesses have qualified themselves, there was no error in permitting them to testify to defendant’s reputation for truth and veracity. 3. —Same—Charge of Court—Limiting Impeaching Testimony. Where the jury could not have used the impeaching testimony for any other purpose than impeachment, it was not necessary to limit same in the charge to impeachment. Following Givens v. State, 35 Texas Crim. Rep., 563. 4. —Same—Charge of Court—Requested Charges. Where special charges were refused and properly covered in the main charge there was no error.
55 Tex. Crim. 121Ex Parte Black (1908)
Rape—Habeas Corpus—limitation—Consent—Age of Prosecutrix. Where upon habeas corpus it appeared on appeal that the act of carnal intercourse upon which the charge of rape was based occurred more than a year prior to the beginning of the prosecution, the offense was barred by limitation. Besides the evidence shows the consent of the prosecutrix who was 23 years of age at the time.
55 Tex. Crim. 122Brooks v. State (1908)
The opinion states the case.
55 Tex. Crim. 123Jones v. State (1908)
The opinion states the case.
55 Tex. Crim. 124Robinson v. State (1908)
Keeping Disorderly House—Joint Recognizance—Jurisdiction. Where upon appeal from a conviction of keeping a disorderly house against several defendants, all the latter appeared in court and entered into a joint recognizance for an appeal of the case, no jurisdiction was conferred upon the Appellate Court and the appeal must be dismissed. Following McMeans v. State, 37 Texas Crim. Rep., 130, and other cases.
55 Tex. Crim. 125Veas v. State (1908)
1. —Assault to Murder—Sufficiency of the Evidence. Where upon appeal from a conviction of assault with intent to murder the evidence sustained the verdict, there was no error. 2. —Same—Misconduct of Jury—Affidavits—Discretion of Court. Where in a motion for a new trial the attached affidavits were clearly contradicted by the testimony upon the issue of the misconduct of the jury and at the best there was a conflict, which must be left to the discretion of the court, there was no ground for reversal. 3. —Same—Jury and Jury law—Bill of Exceptions. Where upon appeal from a conviction of assault to murder the complaint that the appellant had not been tried by a regular jury was not reserved by bill of exceptions, the same could not be considered. 4. —Same—Continuance—Bill of Exceptions. Where there was no bill of exceptions to the overruling of a motion for continuance, the same could not be considered on appeal. 5. —Same—Practice on Appeal—Statutes Construed—Motion for New Trial. Under article 723 Code Criminal Procedure, the appellate court will not review errors assigned in appellant’s brief which were not reserved in his motion for new trial.
55 Tex. Crim. 126Bogus v. State (1908)
1.—Aggravated Assault—Evidence—Moral Turpitude—Witness. Where upon trial for aggravated assault the State was permitted to show on cross-examination of defendant that he had been in the penitentiary for manslaughter some fifteen years before his present trial, the same was too remote to effect Ms credibility and reversible error. 2.—Same—Charge of Court—Argument of Counsel—Credibility of Witness. Where upon trial for aggravated assault the State was erroneously permitted to show that the defendant had been convicted of manslaughter some fifteen years before the trial, and the court in his charge singled out this testimony as affecting the credibility of the witness, while the State’s counsel alluded to said testimony in severe terms, the same was reversible error.
55 Tex. Crim. 128Roe v. State (1908)
The opinion states the case.
55 Tex. Crim. 134Johnson v. State (1908)
Assault to Murder—First Application for Continuance. Where upon trial for assault to murder defendant’s first application for continuance complied in all respects with the statutes, and it appeared that the absent testimony was material, although cumulative, the same should have been granted.
55 Tex. Crim. 135Merriweather v. State (1908)
Burglary—Charge of Court—Explanation of Possession. Where upon trial for burglary, the State relied upon possession by defendant of the goods taken from the burglarized house, and defendant’s explanation when arrested was that he had bought the same, etc., the court’s failure to charge on explanation of possession was reversible error.
55 Tex. Crim. 136Bryan v. State (1908)
Bigamy—Evidence—Husband and Wife. Upon trial for bigamy it was reversible error to permit the wife of the the first marriage to testify for the State against the defendant. See opinion for change recommended in the law by court.
55 Tex. Crim. 137Reed v. State (1908)
The opinion states the case.
55 Tex. Crim. 139Kendall v. State (1908)
Occupation Tax—Charge of Court—Statutes Construed—Penalty. Where defendant was charged with a violation of the occupation tax law under an act which was afterwards amended, and which latter law was in effect when defendant was tried, and both laws provided for a money fine and imprisonment in the county jail, and defendant did not elect to receive the penalty prescribed under the new law, the court should have charged the penalty of the old law, and a charge submitting the penalty under the new law was error.
55 Tex. Crim. 140Hardwick v. State (1908)
Occupation Tax—Selling Malt Liquors without License—Information. Where upon trial for unlawfully pursuing the business of selling malt liquor without license, the information failed to allege the intoxicating quality of the malt liquor alleged to have been sold, the same was insufficient to sustain a conviction.
55 Tex. Crim. 142Aycock v. State (1909)
1. —Aggravated Assault—Charge of Court—Self-defense. On trial for aggravated assault where defendant pleaded self-defense and where the evidence raised the issue of self-defense, the court should have charged that the right of self-defense is limited only by what reasonably appeared to defendant to be dangerous at the time, viewed from his standpoint and no other; and a charge that defendant was only permitted to use such a degree of violence as was necessary to prevent or protect himself against unlawful violence was error. 2. —Same—Charge of Court—Ordinary Judgment. Upon trial for aggravated assault Where the evidence raised the issue of self-defense, a charge which limited the danger threatened to defendant as to what a man of ordinary judgment believed it to be was error. 3. —Same—Charge of Court—Defense of Property. Where upon trial for aggravated assault the evidence showed that the difficulty arose from a discussion of certain water rights between the parties, the question of defense of property was not involved. 4. —Same—Verdict—Degree of Offense. On trial for aggravated assault the verdict should state whether defendant was found guilty of aggravated or simple assault, ini the event of conviction.
55 Tex. Crim. 144Huffman v. State (1909)
1. —Occupation Tax—Information—Pleading—Peddler. In a prosecution for unlawfully pursuing the occupation of a traveling person, selling patent and other medicine, where the information failed to negative one of the exceptions in the inacting clause of the law, to wit: that defendant was not a salesman making sales, the same was fatally defective. Following Needham v. State, 51 Texas Crim. Rep., 248. 2. —Same—Constitutional Law. Subdivision 3 of article 5049, of the Revised Civil Statutes, providing for an occupation tax upon peddlers, etc., of patent medicines, etc., is constitutional. Following Needham v. State, 51 Texas Crim. Rep., 248.
55 Tex. Crim. 146King v. State (1909)
The opinion states the case.
55 Tex. Crim. 147Jennings v. State (1909)
The opinion states the case.
55 Tex. Crim. 149Jacobs v. State (1909)
The opinion states the case.
55 Tex. Crim. 150Horn v. State (1909)
The opinion states the case.
55 Tex. Crim. 152Rochell v. State (1909)
1. —Theft—Charge of Court—Lost Property. Where upon trial of a misdemeanor theft the court properly charged on the question' of lost property, and that defendant could not be convicted unless at the time he found the same he had the fraudulent intent to appropriate, etc., there was nio error in refusing requested charges on the same subject. 2. —Same—Sufficiency of the Evidence. Where upon trial for theft the evidence showed that the property recently stolen or lost was found in the possession of the defendant and that tlie defendant concealed the same, etc., the verdict was sustained although there was also testimony to the contrary.
55 Tex. Crim. 154Beard v. State (1909)
1. —Local Option—Continuance—Defendant as a Witness—Corroboration. Where upon trial for a violation of the local option law, it appeared that the testimony of the absent witnesses would have corroborated the defendant’s theory as testified to by himself, and would otherwise have supported his defense, the application for continuance which in other respects was sufficient should, have been granted. 2. —Same—Charge of Court—Sale. Upon trial for a violation of the local option law where the evidence raised the issue as to whether a sale took place in the county of the prosecution, etc., the jury should have been charged that if the money was accepted in the county of the prosecution and paid for the whisky in another county and that the same was conveyed to the county of the prosecution by a party no„ under the control or as agent of defendant, then defendant would not be responsible for the delivery of the whisky in the county of the prosecution; and the sale would be in the other county.
55 Tex. Crim. 157Price v. State (1909)
1. —Theft—Variance—Possession—Ownership. Where upon trial for theft the ownership and possession of the property was alleged to be in Ben Irelson, and thie proof showed that the property alleged tjo have been stolen was owned by the Ben Irelson Company of which Ben Irelson owned a majority of the stock and was the active manager and had practically the exclusive control and management of the same, the allegation of the ownership and possession were sufficiently proved as alleged, although the said Irelson was not in the store at the time the property was actually stolen therefrom. 2. —Same—Consent to Taking. Where upon trial for theft the proof showed that there was no procurement, suggestion, inducement, aid or encouragement of the theft by the person in immediate charge of the property in question there was no evidence of consent to the taking.
55 Tex. Crim. 160Brown v. State (1909)
1. —Murder—Recalling Jury—Charge of Court—Practice. Where upon trial for murder the court recalled the jury and changed his charge by erasing the word “pistol” and inserting instead thereof the word “gun”; and.there was no injury to defendant shown, there was no error; besides this matter was not properly verified in the record upon appeal. 2. —Sufficiency of the Evidence. Where upon trial for murder the evidence showed threats and motive, and that defendant was placed in a position to have committed the deed; that he showed anxiety after the homicide; and that the party, whom defendant claimed did the killing, was not at or about the place of the homicide, etc., the same was sufiicient to sustain the verdict.
55 Tex. Crim. 162Flannagan v. State (1909)
The opinion states the case.
55 Tex. Crim. 164Caldwell v. State (1909)
1. —Malicious Mischief—Evidence—Extraneous Circumstance. Upon trial for malicious mischief in shooting a certain dog, testimony that defendant, some ten or eleven months before the alleged offense, said that if any dogs got into his pasture he would kill them, without connecting him with the killing of the dog, was inadmissible. 2. —Same—Evidence—Must show Willful or Wanton Intent. Upon trial for maliciously killing a dog, testimony that the presence of dogs among defendant’s sheep at the time in question would have frightened them and would have caused the ewes to have lost their Iambs, etc., and tending to show that if defendant did shoot the dog in his pasture that_ it was done in the protection of his property and not willfully, etc., was admissible and it was error to reject same.
55 Tex. Crim. 167Lewis v. State (1909)
The opinion states the case.
55 Tex. Crim. 168Duncan v. State (1909)
1. —Assault to Murder—Motion for New Trial. Where the motion for new trial in a conviction for assault to murder declaring the jury convicted defendant because the punishment assessed was milder than fining him for aggravated assault was not borne out by the record, there was no error. 2. —Same—Charge of Court—Exception too General. Upon appeal from a conviction, of assault to murder where the ground in the motion for new trial did not point out any specific error of the court it could not be considered. 3. —Same—Specific Intent to Kill. The fact that the assault may have been from a rash and inconsiderate impulse, will not make the assault less an assault with intent to murder; and to reduce the offense to aggravated assault the_ testimony must raise the issue of adequate cause, and this is a question for the jury.
55 Tex. Crim. 170Henderson v. State (1909)
The opinion states the case.
55 Tex. Crim. 174Miller v. State (1909)
Unlawfully Selling Intoxicating liquors—Information—Date of Offense. Where upon trial for selling intoxicating liquors on Sunday, the information alleged that the defendant anterior to the filing of the complaint and information etc., unlawfully sold intoxicating liquors etc., the same sufficiently alleged that the sale occurred before the making and filing of the pleadings.
55 Tex. Crim. 176Wilson v. State (1909)
The opinion states the case.
55 Tex. Crim. 177Saldiver v. State (1909)
Burglary—Evidence—Other Crimes. Where upon trial for burglary the court admitted evidence over defendant’s objection of other burglaries, as well as full details in regard to each of them, and such testimony was not shown to illustrate some question which tended to connect defendant with the offense for which he was tried, the same was reversible error. Following Hinson v. State, 51 Texas Crim. Rep., 102, and other cases.
55 Tex. Crim. 179Goodwin v. State (1909)
The opinion states the case.
55 Tex. Crim. 180Logan v. State (1909)
1.—Local Option—Jury and Jury law. Where upon trial for a violation of the local option law, defendant was required to proceed with his selection of a jury with only seven jurors in the box; without furnishing him with a full panel, there was no error. 2. —Same—Argument of Counsel. Where upon trial for violation of the local option law, the court orally instructed, the jury to disregard the statement of State’s counsel that defendant was a boot-legger, and no charges were requested by defendant with reference to the alleged illegal argument there was no reversible error. 3. —Same—Complaint—Words and Phrases. Where upon trial for a violation of the local option law, the language of the affidavit was more or less obscure if not meaningless, but on closer inspection of same was found to be partly written and partly printed, and although inartistically drawn clearly charged the offense, the same was sufficient.
55 Tex. Crim. 182Barrett v. State (1909)
The opinion states the case.
55 Tex. Crim. 186Childress v. State (1909)
The opinion states the case.
55 Tex. Crim. 189Ex Parte Blardone (1909)
1. —Game Law—Habeas Corpus—Constitutional Law—Police Power. The Act of the Thirtieth Legislature, chapter 144, sections 1 and 5, pages 278 and 279, making it a misdemeanor to sell or offer for sale, etc., any of the game or game birds mentioned in section 1 of said Act, such as wild ducks, etc., is constitutional, and does not infringe upon or abridge the_ right of private property; is not unreasonable or oppressive, etc., but is within the police power of the Legislature. Davidson, presiding judge, dissenting. 2. —Same—Prohibiting the Sale of Wild Game. The same legislative power that has the right to decree that the citizen shall not slaughter game at all, or that he shall kill so many and. no more, has the right to make these enactments effective, to enact the further provision that no such sale of such game shall be made at all. 3. —Same—Wild Game—Property of State—Rood Supply. Under section 1 of the Act of the Thirtieth Legislature, p. 278, wild game in Texas is the property of the State, and part of the food supply of the State, and the Legislature has not only the authority to regulate the slaughter of such game, but to make such laws as may be necessary to accomplish this purpose, and as may and will defeat evasions and prevent violations of this law.
55 Tex. Crim. 199Harvey v. State (1909)
Sodomy—Indictment. See opinion for indictment held insufficient to sustain a conviction for sodomy. See court’s suggestion for additional legislation. [Rehearing denied, February 10, 1909.—Reporter.] Honselman v. People, 48 N. E. Rep., 304; Allsman v. Veal, 10 Ind., 335
55 Tex. Crim. 200Crow v. State (1909)
The opinion states the case.
55 Tex. Crim. 204Leftrick v. State (1909)
The opinion states the case.
55 Tex. Crim. 207Jones v. State (1909)
The opinion states the case.
55 Tex. Crim. 208McDonald v. State (1909)
1.—Assault with Intent to Murder—Charge of Court—Aggravated Assault. Where upon trial for assault with intent to murder the evidence showed that there was nothing to suggest the issue of aggravated assault; that the injuries were inflicted in a cruel and deliberate manner with a knife by the defendant upon prosecuting witness, and the court charged upon assault with intent to murder and aggravated assault, there was no error, 2. —Same—Confessions—Evidence—Warning—Mental Condition. Where upon trial for assault with intent to murder it appeared that the written statement of defendant was made according to the Act of the Thirtieth Legislature; that the same was duly witnessed by the party who gave the warning to defendant, and otherwise properly authenticated, the objection that the statement was contradictory, vague and uncertain, and that defendant was not in a mental condition to make it would not go to its admissibility in evidence. 3. —Same—Self-Defense—Charge of Court. Where upon trial for assault with intent to murder the evidence did not raise the issue of self-defense, there was no error in .the court’s failure to charge thereon. 4. —Same—Charge of Court—Adequate Cause—Aggravated Assault—Insanity. Where upon trial for assault with intent to murder, the evidence showed that the defendant inflicted the injuries upon prosecuting witness in a cruel and deliberate manner, and the defense was among other things that the defendant was of unsound mind at the time of the assault, and the court instructed the jury that if there were no statutory grounds reducing the assault to aggravated assault, to convict the defendant of assault of murder, and also submitted the law of insanity, there was no error in the court’s failure in defining adequate cause to enlarge the same to cover any condition of the mind rendering it incapable of cool reflection. 5. —Same—Charge of Court—Reasonable Doubt. Where upon trial for assault to murder „he charge of the court upon adequate cause was broader than the statute, and instructed the jury that any condition or circumstance capable of creating and which did create sudden rage, etc., rendering the mind of defendant incapable of cool reflection was adequate cause whether accompanied by bodily pain or not; and applied the reasonable doubt in all the different phases of the charge, the same was sufficient although the charge did not strictly copy the statute; "besides this was not raised in the motion for new trial, and the issue of aggravated assault was not raised by the evidence.
55 Tex. Crim. 211Nichols v. State (1909)
The opinion states the case.
55 Tex. Crim. 213Havard v. State (1909)
1. —Manslaughter—Evidence—Res Gestae. Upon trial for manslaughter there was no error to admit the statement of the deceased to the effect that defendant cut deceased at the gate and cut him all the way down to where he was overtaken by defendant and after he did overtake him; this being part of the res gestae. 2. —Same—Evidence—Res Gestae—Charge of Court—Declarations of Third Party. Upon trial for manslaughter where declarations and statements of the brother of the deceased occurring shortly after and in such juxtaposition of the difficulty as to make them res gestae were admitted in evidence for the defense, the court’s charge limiting such testimony to the purposes of impeachment was error. 3. —Same—Charge of Court—Mutual Combat—Self-Defense. See opinion for facts which were held not to raise the issue of mutual eorr.bat; aricHt was error to submit this issue in the court’s charge and thus eliminate the right of self-defense.
55 Tex. Crim. 216Muckenfuss v. State (1909)
1. —Sunday Law—Increase of Punishment—Similar Offense—Statutes Construed. The phrase “same offense” in article 1014, Penal Code, means other offenses of a like character and is not meant to be applied to the same identical offense; and where the defendant was charged with a violation of the Sunday law and that he had theretofore been tried and convicted for an offense of like character, and the court in his charge required upon this issue, in order to assess the increased penalty, that the jury must find that the defendant had been theretofore convicted of a similar offense to the one charged against him, there was no error. 2. —Same—Evidence—Proof of Former Conviction—Judgment—Corporation Court. Upon trial for a violation of the Sunday law and that the defendant had been previously convicted of a similar offense, there was no error in admitting in evidence the memoranda orders of the corporation court showing a previous conviction for a similar offense, and it was not necessary to show that these judgments had been formally entered by said corporation court, as such entry is not required in said court. 3. —Same—Conviction—Similar Offense—Evidence. In a prosecution for violating the Sunday law by opening a public theater on Sunday, etc., and charging previous offenses, it was not necessary in the introduction in evidence of certain memoranda judgments of a corporation court that said judgments should show a conviction for the identical offense of permitting a theater to be opened on Sunday; if the defendant had violated the Sunday law in any of the forms provided by the statute and had been previously convicted therefor he was subject to an increased punishment, and the recital in the corporation court judgment that the defendant had been convicted of a violation of the Sunday law was sufficient. [Rehearing denied March 23, 1909.—Reporter.]
55 Tex. Crim. 221Jaureque v. State (1909)
1. —Rape—Continuance—Alibi. Where upon trial for rape the diligence shown was scarcely sufficient, and the alibi sought to be proved by the absent witnesses did not combat the State’s case sufficiently to render their testimony inconsistent with the testimony of the prosecuting witness; and it was shown conclusively, without explanation by defendant, that the weapon inflicting the wounds upon prosecutrix was that of the defendant, there was no error in overruling an application for continuance. 2. —Same—Variance—Name of Injured Party. Where upon trial for rape it was claimed that the name of the injured party was “Albino Olenick” in the indictment, and that her name was “Albina” under the evidence; and that the indictment had been changed to conform to the proof; but an inspection of the originaLindictment showed that the name of prosecutrix was “Albina,” there was no error. 3. —Same—Charge of Court—Circumstantial Evidence. Where upon trial for rape the identity of the defendant was established positively by the testimony of the prosecutrix, there was no error in the court’s failure to charge on circumstantial evidence. 4. —Same—Evidence—Wounds Inflicted—Charge of Court. Where upon trial for rape the evidence showed that the wounds inflicted upon prosecutrix by the defendant and the act of carnal intercourse, and everything in fact that occurred was one continuous transaction, it was part of the res gestae and clearly admissible, and there was no- error in the court’s failure to limit this testimony with reference to the wounds inflicted.
55 Tex. Crim. 227Bumbaugh v. State (1909)
Appeal from the County Court of Grayson. Tried below before the Hon. J. W. Hassell. Appeal from a conviction of keeping a disorderly house; penalty, a fine of $200 and twenty days confinement in the county jail. The testimony for the State showed that the defendant sold whisky, and that the general reputation of the place where defendant stayed was that it was a place where spirituous, vinous and malt liquors were kept for sale and were sold; that the officers found a lot of whisky and beer in defendant’s and another’s possession; that the defendant had no license to sell such liquors;, there was also testimony that he sold the same as an agent and employee of another; that defendant sold intoxicating liquors at different times and about the time alleged in the indictment. The indictment charged the defendant as owner, lessee, and agent in keeping a disorderly house in which were kept for sale spirituous, vinous and malt liquors without first having obtained a license.
55 Tex. Crim. 229Muckenfuss v. State (1909)
The opinion states the case.
55 Tex. Crim. 231Ex Parte Wolf (1909)
The opinion states the case.
55 Tex. Crim. 232Abbey v. State (1909)
Tried below before the Hon. Jno. Tj. Terrell. Appeal from a conviction of aggravated assault; penalty, sixty days confinement in the county jail.
55 Tex. Crim. 233Ex Parte Drake (1909)
The opinion states the case.
55 Tex. Crim. 237Ex Parte Jacobson (1909)
From Dallas County. Original application for habeas corpus for release from a commitment under a complaint and information upon capias issued thereunder charging relator with the offense of participating in an unlawful assembly.
55 Tex. Crim. 243Knight v. State (1909)
1. —Same—Murder—Common law Marriage. Where upon trial for murder the evidence showed that defendant and the mother-in-law of deceased had been living together as man and wife for six years, this would constitute a common law marriage. 2. —Same—Change of Venue—Discretion of Court. Where upon trial for murder the record showed that a large majority of the witnesses swore on defendant’s motion for change of venue that he could get a fair trial in the county where he was tried, and the matter was heard by the court, there was no error in overruling the motion as the bill of exceptions presented this matter. 3. —Same—Evidence—Bes Gestae—Bes Inter Alios Acta. Where upon trial for murder the evidence showed that after defendant shot the deceased, lie immediately proceeded down the street and shot the officer who attempted to take his gun from him, there was no error in permitting said officer to state what had occurred between him and defendant at that time and what defendant said, this was part of the res gestae and part of the original transaction. 4. —Same—Evidence—Circumstances. Where upon trial for murder the evidence showed that the State’s witness found a gun case after the killing, the fact that it was not thoroughly identified as belonging to the defendant in which he had carried the gun which he got at a pawn shop, did not render such testimony inadmissible. 5. —Same—Evidence—Bill of Exceptions. Where upon trial for murder defendant offered to show a conversation or statement made by the woman with whom defendant lived in the relations of husband and wife, to show that she and her daughter and the deceased conspired against the defendant to get his property, and the bill of exceptions was defective in not stating what the witness would have sworn, the same could not be considered on appeal; besides this matter was immaterial under the facts of this case. 6. —Same—Evidence—Confessions. Where upon trial for murder the written statement of defendant comported in all respects with the statute prescribed with reference to written confession of defendant’s in jail, the same was admissible. However, in view of the fact that defendant swore that no' warning was given and the hope of reward was held out to him by the officers, the court should have submitted the question as to whether said statement was voluntarily made. 7. —Same—Evidence—Moral Turpitude. Upon trial for murder, testimony that defendant was indicted for felony or any crime involving moral turpitude within the last few years prior to the homicide was admissible, but the mere fact that the defendant cut a man does not necessarily involve moral turpitude and was therefore inadmissible. 8. —Same—Evidence—Opinion of Witness. Where upon trial for murder the court correctly excluded the opinion of a witness as to why it was that defendant was being shot at by the officers,, there was no error. 9—Same—Argument of Counsel. See opinion reminding State’s counsel to stav within the record in the argument before the jury. 10. —Same—Evidence—Extraneous Matters. Upon trial for murder testimony with reference to facts immediately following the homicide were admissible, in the absence of a showing in the bill of exceptions that they were not admissible. 11. —Same—Charge of Court—Husband and Wife—Community Property. Where upon trial for murder the evidence showed that the difficulty arose out of the fact that the woman with whom defendant lived in common law marriage had sold the community property to deceased without defendant’s consent, a requested charge defining the law of the right of the husband to control the community property as well as the separate property of the wife, should have been given. 12. —Same—Charge of Court—Ejection. Where upon trial for murder there was no evidence that the deceased and his wife or either of them tried to take away defendant’s household effects at the time of the homicide, but had taken possession of them under a bill of sale from defendant’s wife, the court correctly refused a requested charge of defendant’s right to use force in the event of ejection. 13. —Same—Charge of Court—Husband and Wife—Credibility of Witnesses. Where upon trial for murder the evidence showed that defendant and the mother-in-law of the deceased lived together as husband and wife in common law marriage, it was reversible error to instruct the jury that if they believed that the parties did not so live together that they could use that fact to affect the defendant’s credibility as a witness. 14. —Same—Charge of Court—Defendants Right to Use Necessary Force. Where upon trial for murder the evidence showed that defendant and deceased’s mother-in-law lived together as husband and wife under common law marriage; that defendant’s said wife had sold their household effects to the deceased, and that the latter together with his wife and mother-in-law obstructed defendant’s passage through the house in which he and his wife lived, the court should have instructed the jury that defendant had a right to use whatever force was necessary to enter his own home; and whether he rented it or owned it was immaterial. -15.—Same—Threats of Deceased. Where upon trial for murder the defendant’s testimony raised the issue of threats by the deceased against the defendant, the court should have submitted article 713 of the Penal Code.
55 Tex. Crim. 254Walling v. State (1909)
The opinion states the case.
55 Tex. Crim. 259Lenox v. State (1909)
The opinion states the case.
55 Tex. Crim. 260Reno v. State (1909)
The opinion states the case.
55 Tex. Crim. 262Calloway v. State (1909)
The opinion states the case.
55 Tex. Crim. 264McAllister v. State (1909)
The opinion states the case.
55 Tex. Crim. 267Hall v. State (1909)
1. —Same—Forgery—Indictment—Innuendo and Explanatory Averments. In a prosecution for attempting to pass a forged instrument where the indictment, after setting out the alleged forged instrument, contained the necessary innuendo and explanatory averments, and alleged sufficiently the name of the person whose name is charged to have been forged or intended to be forged, the same was sufficient. 2. —Same—Continuance—Bill of Exceptions. Where no bill of exceptions was reserved to the refusal of the court to grant a continuance, the same can not be considered on appeal. 3. —Same—Charge of Court—Construction of Document. Upon trial for passing a forged instrument, the court correctly charged the jury on forgery that if the instrument was made by some person who had no authority to sign the name of R. W. Smith with the intent to sign said R. W. Smith’s real name, but who by mistake as to E. W. Smith’s initials wrote C. W. Smith instead of E. W. Smith, without any authority to use the name C. W. Smith, and the said instrument was so made and signed with intent to defraud then the instrument was a forgery. This was not a charge on the weight of the evidence. 4. —Same—Sufficiency of the Evidence. In cases of conflict in the evidence it is the province of the jury to settle and determine the question.
55 Tex. Crim. 269Hunt v. State (1909)
local Option—Charge of Court—Requested Charge—Sale. Where upon trial of a violation of the local option law the court’s charge and that requested by the defendant upon the question of sale were practically the same, there was no error in refusing the requested charge.
55 Tex. Crim. 270Gaston v. State (1909)
Local Option—Sale—Confessions. Under article 790, Code Criminal Procedure, pp. 219 and 220, Act of the Thirtieth Legislature, confessions while made under arrest are not admissible unless made voluntarily in the examining court, in accordance with law, or made in writing and signed by the defendant.
55 Tex. Crim. 271Farr v. State (1909)
The opinion states the case.
55 Tex. Crim. 273Newman v. State (1909)
The opinion states the case.
55 Tex. Crim. 277Campbell v. State (1909)
Local Option—Other Offense—Sale. Upon trial of a violation of the local option law, it was reversible error to admit testimony of another transaction involving the sale of intoxicating liquors occurring at a different time and made to a different person than that alleged in the indictment on which defendant was on trial; no connection or system being shown. Following Curtis v. State, 52 Texas Crim. Rep., 607, and other cases.
55 Tex. Crim. 278Richards v. State (1909)
The opinion states the case.
55 Tex. Crim. 282Terrell v. State (1909)
The opinion states the case.
55 Tex. Crim. 284Gant v. State (1909)
1. —Murder—Jury and Jury law—Separation of Jury. Upon trial for murder it was reversible error to permit the jury to separate without being in charge of an officer; and this although the defendant consented thereto. Following Neal v. State, 50 Texas Crim. Rep., 583, and other cases. 2. —Same—Misconduct of Jury. Upon trial for murder it was improper to take the jurors to an open-air theater and permit them to mingle with the audience attending the theater. 3. —Same—Evidence—Husband and Wife—Privileged Communications. Upon trial for murder there was no error in excluding the testimony of the wife of the deceased with reference to threats made by her husband against the defendant and defendant’s father when said witness and her husband were alone and not in the presence of others. Distinguishing Cole v. State, 51 Texas Crim. Rep., 89. Following Davis v. State, 45 Texas Crim. Rep., 292 4. —Same—Evidence—Declaration of Deceased. Upon trial for murder testimony that the deceased on the evening of the homicide as he left his residence stated to his mother-in-law, as he was going to the place of the tragedy, to hurry up supper so they could make ice cream after supper was inadmissible. 5. —Same—Charge of Court—Singling out Facts—Manslaughter. Where upon trial for murder the court undertakes to select and cull facts from the record and specifically point them out in his charge and submit them as a basis of manslaughter, sufficient of the facts should be stated so as to present fully and fairly the issue of manslaughter from any standpoint made by the facts or deducible therefrom; and where the court’s charge in singling out testimony left out several matters of fact presenting the issue of manslaughter, the same was reversible error. 6. —Same—Charge of Court—Different Assailants—Self-Defense—Manslaughter. Where upon trial for murder the evidence showed that two^ of the brothers of the deceased were approaching the scene of the difficulty in a threatening manner, the court in submitting self-defense and manslaughter should not have confined the standpoint of aggression to the deceased, but should have extended the same to that of the two brothers of deceased. 7. —Same—Threats—Charge of Court. Where upon trial for murder, threats by the deceased were in evidence, the court should have given a clear and pertinent charge of this issue to the jury. 8. —Same—Charge of Court—Self-Defense—Provoking Difficulty. Upon trial for murder a charge of the court that defendant had a right to arm himself and demand an explanation from the deceased was too restrictive and should have extended to the defendant’s right to go armed on his premises, even if this included an unlawful purpose, unless such purpose was accompanied by some act or word that brought about the difficulty.
55 Tex. Crim. 293Thomas v. State (1909)
The opinion states the case.
55 Tex. Crim. 299Hobbs v. State (1909)
The opinion states the case.
55 Tex. Crim. 307Salazar v. State (1909)
1. —Rape—Continuance.' Where the absent witnesses came into court and were tendered defendant during his trial for rape, and he refused to use them, there was no error in the court’s refusal to grant the application for continuance. 2. —Same—Evidence—Physical Appearance o£ Prosecutrix—Bill of Exceptions. Where upon appeal from a conviction of rape the bill of exceptions did not set out why the question propounded to witness was not proper, the same could not be considered; besides, where the prosecutrix was subjected to a severe cross-examination with reference to her conduct during the day after the alleged rape, the question of her physical appearance at that time, while remote, was not of sufficient importance, as presented, to require reversal. 3. —bame—Evidence—Contradicting Witness. Upon trial for rape there was no error in permitting the prosecutrix to state her reasons why she did not go to her husband and inform him of the offense. 4. —Same—Evidence—Clothing. Upon trial for rape there was no error in admitting in evidence a saque worn by the prosecutrix at the time of the alleged rape, for the purpose of corroborating her statement as to the resistance she made, and that the same was torn in her struggle. 5. —Same—Charge of Court—Definition of lítense. Upon trial for rape by force, threats and fraud, where the court in applying the law to the facts limited the jury to the consideration of rape by force, there was no reversible error m the court’s general definition of rape; although it is better practice to limit the definition to the issue on trial. 6. —Same—Charge of Court—Weight of Evidence. Where upon trial for rape the court in his charge assumed no fact nor directed the jury to any particular fact, but instructed the jury that they could take into consideration all the facts, the manner and condition of the prosecutrix at the time of and just after the carnal intercourse, if any, and all the other facts and circumstances, the same was not on the weight of the evidence. 7. —Same—Charge of Court—Special Charges Refused—Consent. Where upon trial for rape the court refused special instructions which singled out particular facts, but embodied all the facts in his general charge, directing the attention of the jury to them, and that they should consider all the facts and circumstances occurring at the time of the alleged rape and subsequently thereto as bearing on the question of consent, there was no error. 8. —Same—Charge of Court—Force—Resistance. Where upon trial for rape the court in his charge sufficiently submitted the criterion of force as required by the statute, and the jury could not have possibly misunderstood the degree of force necessary to overcome resistance, there was no error in the court’s refusal of special charges on the same subject. 9. —Same—Misconduct of Jury—Former Conviction. Where the defendant, upon the question of the misconduct of the jury, accepted the bill of exceptions with the court’s statement as to why some of the jurors could not be found and brought back to be interrogated as to certain statements and allusions to a former conviction made in the jury room, he will not be heard to complain; besides where such statements were a bare allusion to a former conviction, and it was not shown that defendant was injured thereby, there was no error. Following Smith v. State, 52 Texas Crim. Rep., 344. 10.—Same—Sufficiency of the Evidence. Where upon trial for rape the issue of force and want of consent was one of fact, the conviction will not be disturbed. [Rehearing denied, March 17, 1909.—Reporter.]
55 Tex. Crim. 315Dawson v. State (1909)
The opinion states the case.
55 Tex. Crim. 316Murphree v. State (1908)
1. —Forgery—Verdict—Correction—Form. Where upon trial for forgery defendant was placed upon trial upon the first count in the indictment, there was no error in the court’s action to correct the verdict so as to base it upon the first count in the indictment without retiring the jury. This was a mere matter of form. 2. —Same—Venue—Proof. Where upon trial for forgery there was no suggestion of fact in the evidence raising the inference that the notes were forged elsewhere than in the county where the venue was laid, the court did not err in refusing to instruct the jury that the venue had not been proved; the evidence raising a reasonable inference that the venue had been proved.
55 Tex. Crim. 319O'Brien v. State (1909)
The opinion states the case.
55 Tex. Crim. 320Smith v. State (1909)
The opinion states the case.
55 Tex. Crim. 323Lamb v. State (1909)
1.—Aggravated Assault—Continuance. Where upon trial for aggravated assault the testimony of the absent witness, as set out in defendant’s third application for continuance, not being of sufficient importance and probably not being true, there was no error in overruling the motion. 2. —Same—Bill of Exceptions—Prior Difficulty. Where upon trial for aggravated assault the bill of exceptions did not show why testimony concerning a previous difficulty between the parties was inadmissible, the same could not be considered on appeal, where such testimony might have been admissible for some purposes under the facts of this case. 3. —Same—Evidence—Previous Difficulty. Upon trial for aggravated assault there was no error in admitting testimony that two days before the shooting for which defendant was being tried,, he was playing a game of cards in which prosecutor warned him off in a threatening manner; besides this matter was not of sufficient importance to constitute error. 4. —Same—Charge of Court. Where upon trial for assault with intent to murder the court charged full and favorably on all the different phases of the case, and defendant was allotted the minimum fine for aggravated assault, there was no error.
55 Tex. Crim. 326Smith v. State (1909)
The opinion states the case.
55 Tex. Crim. 329Humphrey v. State (1909)
The opinion states the case.
55 Tex. Crim. 330Russell v. State (1909)
1. —Theft—Possession—V ariance. Where upon trial for theft the indictment alleged the possession of the stolen property in the prosecuting witness, and the evidence showed that he loaned the same to his brother temporarily from whose possession the property was taken, there was no variance. 2. —Same—Charge of Court—Accomplice—Form. Where upon trial for theft the evidence showed that the State’s witness was clearly an accomplice, it was reversible error to fail to charge on said issue, as requested. See opinion for form of charge on accomplice testimony.
55 Tex. Crim. 331Holmes v. State (1909)
1. —Same—Local Option—Conflict of Testimony.- Where upon trial for a violation of the local option law there was a direct conflict in the evidence, between that of the State and that of the defendant, it was a question for the jury, and the verdict will not be disturbed. 2. —Same—Elections—Repeal. A subsequent election to the one under which defendant was prosecuted, which also resulted in local option, did not repeal the former local option law, and could not be pleaded in defense of the prosecution under the first law. Following Massie v. State, 52 Texas Crim. Rep., 548; Wade v. State, 52 Texas Crim. Rep., 608. 3. —Same—Motion for New Trial. A ground in a motion for new trial complaining of the charge of the court must point out specifically the defects of the charge, and the complaint that the court erred in the 4 of the charge was entirely too general and indefinite.
55 Tex. Crim. 332Combs v. State (1909)
The opinion states the case.
55 Tex. Crim. 334Combs v. State (1909)
The opinion states the case.
55 Tex. Crim. 339Craighead v. State (1909)
The opinion states the case.
55 Tex. Crim. 343Clark v. State (1909)
The opinion states the case.
55 Tex. Crim. 344Roma v. State (1909)
1. —Manslaughter—Continuance—Second Application. In the absence of a statement to the contrary, a motion for continuance will be' considered as a second application, and refused where other witnesses testified to the same facts set out in the application, besides the testimony was not probably true. 2. —Same—Evidence—Threats. Where upon trial for murder the evidence showed that the defendant and another acted together in the commission of the homicide, there was no error in admitting in evidence the threats against the deceased of this other party made in the presence of the defendant. 3. —Same—Evidence—Bes Gestae—Declarations of Third Party. Upon trial for murder, there was no error to admit the statement of State’s witness that defendant threatened to kill her because she would tell on the defendant, and that this threat was made just after the deceased was killed. This was res gestae. 4. —Same—Evidence—Bes Gestae—Corroboration. Upon trial for murder there was no error in admitting testimony with reference to a difficulty between defendant and a third party immediately after the homicide, and which was part and parcel of the same; and also corroborating the testimony of a State’s witness with reference to threats made against her by defendant to keep her from testifying; and further showing that the wound on the defendant was not indicted by the deceased, as the former insisted. 5. —Same—Charge of Court—Self-Defense. Where upon trial for murder the evidence did not raise the issue of self-defense, there was no error in the court’s failure to charge thereon. 6. —Same—Charge of Court—Conspiracy—Manslaughter. Where upon trial for murder the evidence showed that the defendant and his codefendant entered into a conspiracy to kill the deceased, the court correctly charged on conspiracy; and the court’s charge on manslaughter was not a matter of which defendant could complain. 7. —Same—Charge of Court—Motion for New Trial. Unless the motion for new trial specifically points out some error in the court’s charge the same will not be considered on appeal. 8. —Same—Charge of Court—Limiting- Testimony. Where the testimony was part of the res gestae of the transaction, and could not be appropriated for any illegal purpose, there was no error in the failure of the court to limit the same.
55 Tex. Crim. 347Irvine v. State (1909)
The opinion states the case.
55 Tex. Crim. 350Granberry v. State (1909)
Scire Facias—Bail Bond—Judgment Nisi—Variance—Name of Court. Where upon trial of scire facias proceedings, the bail bond offered in evidence upon which the judgment nisi was based, did not state before which particular district court the principal was bound to appear (there being two district courts in said county having concurrent jurisdiction over the offense with which the principal was charged at the time the bond was given) the said bail bond was defective, and not admissible in evidence under the allegations in the writ of scire facias that the judgment nisi was rendered in one of said district courts, describing the same. Eamsey, Judge, dissenting.
55 Tex. Crim. 352Carr v. State (1909)
The opinion states the case.
55 Tex. Crim. 353Derry v. State (1909)
The opinion states the case.
55 Tex. Crim. 356Hellums v. State (1909)
The opinion states the case.
55 Tex. Crim. 357Kyle v. State (1909)
1. —Slander of Female—Sufficiency of the Evidence. Where upon trial of slander of a female, the evidence was conflicting, the question was one of fact for the jury and the conviction will not be disturbed. 2. —Same—Evidence—Impeachment—Extraneous Matters. Upon trial of wilful slander of a female the court correctly rejected other slanderous statements made by defendant with reference to the female alleged to have been slandered, which were offered by defendant to lay a predicate for impeachment of the prosecuting witness, and which consisted in cross-questions to the said witness; besides these statements were unfavorable to the defendant in supporting the slanderous statement for which he was being tried, and he could not complain. 3,—Same—Charge of Court—Malicious and Wanton—Words and Phrases. Where upon trial for slander of a female, the court applied the statute to the facts in proof, and the requested instruction was substantially the same, and no definition of the terms wantonly and maliciously was therein requested, there was no error in the court’s failure to define these terms.
55 Tex. Crim. 360Kyle v. State (1909)
The opinion states the case.
55 Tex. Crim. 362Ward v. State (1909)
The State’s testimony showed that the police went to defendant’s place of business at the time alleged in the information; that they went up into a rooming house and out through a window into the second story and out on the stairsteps in the back and through the back door; that when they got in they found a bar and some tables and chairs, and there was a bartender and two negro porters in there; that there was beer and whisky behind the bar; that there were a number of men…
55 Tex. Crim. 367Dowd v. State (1909)
Manslaughter—Misconduct of Jury—Bill of Exceptions. Where the motion for new trial alleging misconduct of the jury was sworn to, but there was no evidence in the record supporting the affidavit; and the judgment of the court recited that the court heard the evidence on the motion which was overruled, and there was no bill of exceptions in the record, the judgment is affirmed.
55 Tex. Crim. 368Speers v. State (1909)
1. —Sodomy—Evidence—Experiments. Where experiments as to any disputed fact testified to at the trial appeared to have been made under conditions similar, or nearly similar to those attending the original transaction, and where such experiment would tend to shed any light upon said original transaction, proof of the result of the same is legitimate and admissible in evidence; although not conclusive. 2. —Same—Case Stated. Upon trial for sodomy where the principal prosecuting witness testified that he did not recognize the defendant on the night of the alleged crime, though defendant had lived in that town for many years, and the witness knew him well, but that he did see his private parts in the act of copulation, the court erred in excluding testimony that under similar conditions the witness could not see what- the prosecuting witness said he did see. Following Richardson v. State, 49 Texas Crim. Rep., 391; Clark v. State, 38 Texas Crim. Rep., 30, and other cases.
55 Tex. Crim. 370Conley v. State (1909)
The opinion states the case.
55 Tex. Crim. 372Housley v. State (1909)
Assault to Murder—Deadly Weapon—Aggravated Assault—Billiard Cue-Serious Bodily Injury—Charge of Court. Where upon trial for assault with intent to murder the evidence showed that defendant struck the injured party with the but-end of a billiard cue about two and a half feet long and weighing about one pound, dealing prosecutor a severe blow upon his head, cutting a wound about an inch and a half or two inches long, etc., the same was a serious bodily injury, and not a trivial wound; and the court was required to charge on serious bodily injury in his charge on aggravated assault. [Rehearing Denied March 17, 1909.—Reporter.]
55 Tex. Crim. 374Hester v. State (1909)
1. —Carrying Pistol—Traveler—Charge Of Court. Where upon trial for unlawfully carrying a pistol the evidence raised the issue that defendant carried the pistol as a traveler, which was properly submitted by the court,' there was no error in refusing a special instruction in substantially the same language as the main charge. 2. —Same—Charge of Court—Words and Phrases. Where upon trial for unlawfully carrying a pistol the court’s charge inadvertently omitted the word “doubt,” in charging on reasonable doubt, and the court in reading his written charge included this word, there was no error. Following Green v. State, 52 Texas Crim. Rep., 44.
55 Tex. Crim. 376Newman v. State (1909)
The opinion states the case.
55 Tex. Crim. 379Lee v. State (1909)
The opinion states the case.
55 Tex. Crim. 380Close v. State (1909)
The opinion states the case.
55 Tex. Crim. 383Young v. State (1909)
The opinion states the case.
55 Tex. Crim. 386Craighead v. State (1909)
1. —Malicious Mischief—Information, See opinion for information held to be sufficient for wilfully injuring personal property of another. Following Adams v. State, 47 Texas Crim. Rep., 35, and other cases. 2. —Same—Evidence—Intent. Upon trial for willfully injuring the property of another, where the defendant contended that the telephone posts which he removed were on his land, there was no error in admitting testimony tending to show defendant’s lack of sincerity in making this contention, and that he acted willfully in the premises. 3. —Same—Evidence—Ownership. Where upon trial for willfully injuring telephone posts the- property of another, there was no error in permitting prosecuting witness to show that these posts were his property. 4. —Same—Evidence—Eirst-Class Road. Upon trial for willfully injuring the personal property of another there was no error in admitting testimony that the road along which the telephone posts were set was a first-class road, and that defendant did not leave sufficient space for such road. 5. —Same—Sufficiency of the Evidence. Where upon trial for malicious mischief the evidence showed that the defendant willfully destroyed the telephone posts of prosecutinng witness, the conviction was sustained.
55 Tex. Crim. 389Hartsell v. State (1909)
Aggravated Assault—Adult Male—Female. Upon trial for aggravated assault by an adult male upon a female, where the evidence did not show whether the defendant is a boy or a man, the allegation that the defendant is an adult male was not established, and the conviction for aggravated assault can not be sustained.
55 Tex. Crim. 390Byrd v. State (1909)
Assault to Murder—Age of Defendant—Reformatory. Where upon trial for assault to murder the verdict of the jury did not in express terms find that defendant was not over sixteen years of age at the time of the trial, in assessing his punishment at two years confinement in the reformatory, the same was reversible error. Following Watson v. State, 49 Texas Crim. Rep., 371.
55 Tex. Crim. 392McCallister v. State (1909)
The opinion states the case.
55 Tex. Crim. 393Patterson v. State (1909)
Gaming—Private Besidence—Family. Upon trial for gaming where the evidence showed that there was no constituent of a family occupying the house where the cards were played, and had not been; but was simply a one-room house occupied by a bachelor and some of his hired hands, such habitation was not a private residence occupied by a family under the law, and the conviction was sustained.
55 Tex. Crim. 394Gardner v. State (1909)
The opinion states the case.
55 Tex. Crim. 397Tate v. State (1908)
Burglary—Charge of Court—Accomplice Testimony. Where upon trial for burglary the general definition in the court’s charge in regard to accomplice testimony was not sufficient, because he instructed the jury that the accomplice testimony need only tend to connect the defendant with the offense, yet where the bill of exceptions did not specifically point out this error but relied upon another ground which was not in the case the judgment will not be reversed for this reason, under article 723, Code Criminal Procedure, although such charge was erroneous.
55 Tex. Crim. 400Gardner v. State (1909)
The opinion states the case.
55 Tex. Crim. 403Loid v. State (1909)
The opinion states the case.
55 Tex. Crim. 405Hanks v. State (1909)
The opinion states the case.
55 Tex. Crim. 407Hill v. State (1909)
The opinion states the case.
55 Tex. Crim. 411Johnson v. State (1909)
Theft from Person—Uobbery—Charge of Court. Where upon trial for theft from the person the evidence taken all together did raise perhaps the issue that the money alleged to have been taken was taken under circumstances making it robbery rather than theft from the person, but also raised the issue of theft from the person by a sudden taking; and the court instructed the jury (in addition to the charge on theft from the person) that if they had a reasonable doubt whether the taking of the alleged money from the prosecutor was taken during a struggle between defendant and prosecutor to acquit the defendant, this submitted the issue of robbery as opposed to the issue of theft from the person, and there was no error. Davidson, Presiding Judge, dissenting.
55 Tex. Crim. 416Bowmer v. State (1909)
1. —Receiving Stolen Property—Change of Venue—Prejudice—Impartial Trial. Where upon trial of receiving stolen property the record on appeal did not show that there existed so great a prejudice against the defendant that he could not get a fair and impartial trial, or that he did not secure same, there was no error in the court’s refusal to change the venue. 2. —Same—Witness Under Rule—Wife of Defendant. Upon trial of receiving stolen property there was no error to place the wife of the defendant under the witness rule upon motion of State’s counsel; counsel for defendant refusing to say whether he expected to use her as a witness. 3. —Same—Evidence—Bill of Exceptions. Where upon trial for receiving stolen property the bill of exceptions in the record on appeal did not show the pertinency of the proffered testimony on the part of the defense, the same could not be considered. 4. —Same—Evidence—Bill of Exceptions. Where upon appeal the bill of exceptions did not show any relevancy of the rejected testimony, the same could not be considered. 5. —Same—Evidence—Bill of Exceptions. Where upon appeal the bill of exceptions showed that the alleged excluded testimony, to wit, a mortgage, was in fact admitted in evidence, there was no error. G.—Same—Evidence—Irrelevant T estimony. Where upon appeal the alleged rejected testimony with reference to employment of counsel was utterally irrelevant to any possible issue in the case, there was no error. 7. —Same—Evidence—Bill of Exceptions. Where upon appeal the bill of exceptions did not show what the witness would have answered, the same could not be' considered. 8. —Same—Evidence—Bill of Exceptions. Where upon appeal the bill of exceptions did not show in itself what was the answer of the witness, or how or in what way it injured appellant, the same could not be considered. 9. —Same—Evidence—Wife of Codefendant—Witness. Where upon trial of receiving stolen property the records showed that the codefendant was indicted for burglary and theft growing out of the same transaction, and that the prosecution was pending, it was reversible error to permit the wife of said codefendant to testify against defendant; and this although the parties were indicted under different indictments. Following Dill v. State, 1 Texas Crim. App., 278, and other eases. 10—Same—Practice in District Court—Consulting Witnesses Under Rule. Defendant has a right to be present and to aid his counsel in the examination of witnesses and to speak to the witnesses; and upon trial for receiving stolen property it was error to instruct the defendant’s counsel that he must not talk to any witness in the presence of the defendant. 11.—Same—Burglary—Emb ezzlemeut. See opinion of the court for facts that do not suggest the offense of receiving stolen property, but that of embezzlement.
55 Tex. Crim. 422Reyes v. State (1909)
1. —Assault to Murder—Verdict by Lot. Where upon trial for assault with intent to murder it was contended in defendant’s motion for new trial that the verdict was by lot, and the testimony taken thereon showed that there was no agreement in advance of the balloting that the jury should abide by a verdict obtained by lot, and that the sole purpose was simply to get an expression of the jurors as to the degree of punishment, there was no error. Following Fox v. State, 53 Texas Crim. Rep., 150. 2. —Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify— Bill of Exceptions. Where upon motion for new trial defendant complained of State’s counsel’s argument as referring to defendant’s failure to testify, but the bill of exceptions on appeal did not bear out defendant’s position, and there was no bill of exceptions by bystanders, the court did not err in refusing to hear, testimony to show that State’s counsel did use such argument; and the appellate court must be guided by the bill of exceptions as presented. 3. —Same—Evidence—Motive. Upon trial for assault to murder where the evidence showed that defendant had made threats against the injured party in reference to a certain girl, there was no error to admit testimony that defendant had been waiting on this girl for two or three years. . 4. —Same—Newly Discovered Evidence. Upon motion for new trial where the alleged newly discovered evidence could have easily been discovered by the defendant before trial, and was of such a character as not to be material in any event, there was no error in overruling the motion. 5. —Same—Misconduct of Where upon trial for assault with intent to murder it was shown on motion for new trial that the jurors in their retirement in considering the verdict had alluded to and discussed defendant’s failure to testify, and also the fact of his former conviction, and this must have operated to the prejudice of the defendant, there was reversible error.
55 Tex. Crim. 429Reese v. State (1909)
The opinion states the case.
55 Tex. Crim. 430Henry v. State (1909)
Local Option—Charge of Court—Place of Sale. Where the defendant’s evidence suggested that he was acting as agent of the prosecuting witness at the time, and that the whisky was purchased outside of the local option district, and that he did not recollect that he was paid in the local option territory, etc., the court erred, over objection of defendant, in instructing the jury that the place of payment is the place of sale.
55 Tex. Crim. 431O'Brien v. State (1909)
Keeping Disorderly House—Intoxicating liquors—Insufficiency of the Evidence—General Reputation. Where upon trial for keeping a disorderly house, in which spirituous and other liquors were kept for sale without license, the conviction rested alone upon general reputation, which was itself meager, and there was no evidence that defendant ever sold or offered to sell intoxicating liquors or that he had such in his possession, or that the description of the building, its furnishings and equipment was such as to indicate that he was engaged in such business, the conviction could not be sustained. Distinguishing Joliff v. State, 53 Texas Crim. Rep., 61.
55 Tex. Crim. 435Hill v. State (1909)
Theft of Horse—Evidence—Accomplice. Where upon trial for theft of horses, defendant’s codefendant turned State’s evidence and implicated the defendant in the theft, and the next day testified that his former testimony was entirely false and that he had committed perjury, and that the defendant had nothing to do with the taking of the property; and outside of this testimony the State had a very weak case, and defendant testified to an alibi which was to some extent corroborated, the conviction could not be sustained.
55 Tex. Crim. 437Davis v. State (1909)
The opinion states the case.
55 Tex. Crim. 438Merriwether v. State (1909)
Local Option—Defendant as a Witness—Cross-Examination—Other Offenses— Impeaching Witness—Moral Turpitude. Upon trial of a violation of the local option law it was reversible error to admit in. evidence testimony of a former conviction for a violation of the local option law, independent of the case on trial; and this although limited to the purpose of impeachment. Overruling Levine v. State, 35 Texas Crim. Rep., 647; Dickey v. State, 56 S. W. Rep., 627. Approving Stewart v. State, 37 Texas Crim. Rep., 135, 38 S. W. Rep., 1144; Marks v. State, 9 Texas Ct. Rep., 309.
55 Tex. Crim. 441Simmons v. State (1909)
The opinion states the case.
55 Tex. Crim. 450Evans v. State (1909)
The opinion states the case.
55 Tex. Crim. 451Hanks v. State (1909)
The opinion states the case.
55 Tex. Crim. 456Mantel v. State (1909)
The opinion states the case.
55 Tex. Crim. 460Craighead v. State (1909)
Obstructing Public Road—Charge of Court—Intent. Where upon trial for wilfully obstructing a public road the evidence showed the exact boundaries of the road to have been somewhat in doubt, and that the defendant had obtained permission from the county authorities to run the lines accurately at his own expense, which he did, and placed his fence as he believed on his own land, it was reversible error to refuse a requested charge whether under the circumstances this was a wilful obstruction, and whether the road had been in fact obstructed.
55 Tex. Crim. 462Pugh v. State (1909)
The opinion states the case.
55 Tex. Crim. 464Pemberton v. State (1909)
1. —Assault to Murder—Continuance. Where upon trial for assault to murder the testimony of the absent witnesses as set out in defendant’s first application for continuance was too remote, and besides one of the absent witnesses testified in the ease there was no error. Following Ex parte Kunde, 22 Texas Crim. App., 418. 2. —Same—Evidence—Related Circumstances—Incidental Facts. Where upon trial for assault to murder the testimony showed that the injured parties were asleep in bed at the time they were shot, and that shot of different sizes was found in the bed clothing as well as in the bodies of the injured parties, there was no error in admitting testimony that a certain piece of lend was found on the foot of the bed on which the prosecuting parties slept, the next morning after the shooting. 3. —Same—Evidence—Expert Opinion. Where upon trial for assault to murder the State’s witness qualified as an expert, there was no error in admitting his testimony that he examined the defendant’s shotgun the next day after the shooting, and that the same showed that it had been recently fired. 4. —Same—Evidence—Imputing Crime to Another. Upon trial for assault to murder there was no error in excluding testimony that another party lived near the scene of the shooting; that there was bad feeling between said party and the parties injured, and said third party was away from his home on the night of the shooting, and became embarrassed when asked where he was that night, etc. 5. —Same—Argument of Counsel. Where upon trial for assault to murder the State’s counsel used extreme illustrations in nforeing the fact that the evidence authorized a conviction of the defendant, there was no ground for reversal. 6. —Same—Sufficiency of the Evidence. Where upon trial for assault to murder the evidence showed that the injured parties were shot at night while asleep ,in bed and one of them positively identified the defendant as the person who did the shooting, etc., the conviction was sustained.
55 Tex. Crim. 469Harris v. State (1909)
The opinion states the case.
55 Tex. Crim. 481Farris v. State (1909)
1. —Theft of Cattle—Charge of Court—Bill of Sale. It is not necessary to the transfer of title to property in prosecutions for theft of animals that there should be a bill of sale. 2. —Same—Charge of Court—Reasonable Doubt. Where upon trial of theft of cattle the evidence showed that the alleged property was the property of the prosecutor and. the court submitted this issue and the reasonable doubt, the same was sufficient. 3. —Same—Charge of Court—Cattle Running on Range—Circumstantial Evidence. Where upon trial of theft of cattle the evidence showed that the defendant pointed out and sold the animal to the alleged purchaser as it ran upon the range, this would be a taking through the purchaser by the seller, and no charge on circumstantial evidence was necessary, the purchaser being an innocent party in the transaction. See Penal Code, article 77.
55 Tex. Crim. 483Dobbs v. State (1909)
1. —Slander o£ Female—Terms of County Court—Jurisdiction. Where upon trial for slander of a female the record disclosed the fact that the commissioners court had fixed certain terms of the county court for accepting pleas of guilty in criminal cases without the intervention of a jury, and had made no provision for the trial of cases except on pleas of guilty, such terms of the county court were not authorized by law; and the court erred in forcing defendant to go to trial during such a term of the county court. 2. —Same—Variance—Allegation and Proof—Charge of Court. Where upon trial for slander of a female the proof of the alleged slanderous words differed from the slanderous language set out in the information, the same constituted a variance; and the court should have given the requested charge upon this issue. 3. —Same—Charge of Court—General Reputation—Reputation for Chastity. Where upon trial for slander of a female there was sufficient evidence to require a charge upon the issue of prosecutrix’s reputation for chastity, which charge was requested, the court erred in submitting in his main charge the general character of prosecutrix instead of her general reputation for chastity, and in refusing the requested charge.
55 Tex. Crim. 486Yardley v. State (1908)
I.—Perjury—Indictment—Materiality of Statement. In perjury cases all that is necessary to do is to state distinctly what the party swore to and allege its materiality, and it is not necessary to show how or wherein it was material. If the indictment alleges that the false statement was material to the issue on trial, it is sufficient without alleging the facts which show the materiality. Following Washington v. State, 22 Texas Crim. App., 26, Distinguishing McVicker v. State, 52 Texas Crim. Rep., 508. 2. —Same—Pleading. If the indictment for perjury does not allege that the false statement was material, then the indictment must show upon its face its materiality; but the better practice is to allege the false statement, and then allege its materiality. Following Cravey v. State, 33 Texas Crim. Rep., 557. 3. —Same—Case Stated. Where tkq indictment upon trial for perjury was quite explicit as to what defendant swore, and was equally explicit in charging that said statement was material in the course of a judicial inquiry, the same was sufficient; and the evidence supported the allegation of the indictment. 4. —Same—Continuance—Second Application—Diligence, want of. Where upon trial for perjury the absent witnesses were accessible to the court, and no effort was made to secure their attendance, and no process issued or applied for, the motion for continuance, which was a second application, was correctly overruled. 5. —Same—Argument of Counsel. Where upon trial for perjury the argument of State’s counsel was in response to that of defendant’s counsel, but State’s counsel was urged by the court not to indulge in same, and there was no instruction requested to withdraw said remarks, there was no error. [Rehearing denied March 17, 1909.—Reporter.]
55 Tex. Crim. 490Vinson v. State (1909)
The opinion states the case.
55 Tex. Crim. 495Davis v. State (1909)
Tried below before the Hon. S. W. Dean. Appeal from a conviction of theft of cattle; penalty, ■ two years imprisonment in the penitentiary. The opinion states the case.
55 Tex. Crim. 502Montgomery v. State (1908)
The opinion states the case.
55 Tex. Crim. 507Johnson v. State (1909)
1. —Theft—Excessive Punishment. Upon appeal from a conviction of theft, there being no statement of facts, a complaint that the punishment was excessive could not be considered. 2. —Same—Plea of Defendant—Practice in County Court. Where in a misdemeanor theft, after the jury had been empaneled, but before they were charged by the court, the defendant asked that he be permitted to withdraw his plea from the jury and enter a plea of guilty before the court, there was no error in not permitting him to do so. Distinguishing Otto v. State, 87 S. W. Rep., 698. [Behearing denied March 17, 1909. Beporter.]
55 Tex. Crim. 508McDonald v. State (1909)
The opinion states the case.
55 Tex. Crim. 511Buckner v. State (1908)
1. —Murder—Continuance. Where the application for continuance as set out in the bill of exceptions did not show whether it was the first or a subsequent application, it will be presumed that it was at least a second application; and where it appeared from the record that one of the witnesses was present at the time of the trial and the other witness was out of the State and his testimony had at a former trial was read in evidence, and that the testimony of another absent witness was simply cumulative, there was no error in overruling the motion. 2. —Same—Charge of Court—Threats. Where upon trial for murder the evidence showed communicated threats by the deceased against the defendant, the defendant had the right under the law to act upon such threats, whether in fací the deceased had made them or not; and it was reversible error in the court’s charge .o require that the jury must affirmatively find that such threats were in fact made by the .deceased. 3. —Same—Insult to Eemale Relative—Charge of Court. Where upon trial for murder there was no evidence of insulting conduct by the deceased toward a female relative of defendant, there was no error in the court’s failure to charge thereon; and the bare fact that the deceased shot towards the house of the defendant did not raise this issue.
55 Tex. Crim. 519Cravens v. State (1908)
The opinion states the case.
55 Tex. Crim. 524Field v. State (1909)
The opinion states the case.
55 Tex. Crim. 529Bice v. State (1908)
The opinion states the case.
55 Tex. Crim. 535Jones v. State (1908)
1.—Burglary .—Private Residence—Indictment. Where upon trial for burglary of a private residence the indictment alleged that the house at the time it was burglarized was actually used and occupied by the prosecutor (naming him) as the private residence of his family, the same was suffieient. 2. —Same—Verdict—Indictment—Charge of Court—Private Residence. Where upon trial of burglary of a private residence, the indictment alleged this offense, and the court submitted the same to the jury, a verdict which found the defendant guilty of burglary as charged and assessed his punishment at five years imprisonment in the State penitentiary was responsive to the indictment and the court’s charge; and it was not necessary for the verdict to' recite that the burglary was of a private residence. 3. —Same—Jury and Jury law—Drawing Jury—Clerk. Upon trial for burglary there was no error that the clerk of the District Court assisted in drawing the jury, instead of the clerk of the Criminal Court. The clerk of the District Court, under the Act of the Thirtieth Legislature, is the proper person to draw the jury. Following Lee v. State, 54 Texas Crim. Rep., 382. [Rehearing denied March 17, 1909.—Reporter.]
55 Tex. Crim. 538French v. State (1909)
The opinion states the case.
55 Tex. Crim. 541Bills v. State (1909)
1.—Local Option—Evidence—Recall of Witness—Discretion of Court. Where upon appeal from a conviction of a violation of the local option law, the bill of exceptions did not show that there had been any such abuse of the court’s discretion in refusing the recall of a witness as would authorize a reversal, there was no error. 2.—Same—Evidence—Local Option in Force. Upon trial of a violation of the local option law it was required that the prosecution show that local option was in effect in the county of the prosecution, and where the only proof by the State was that there was a local option law in said county, it was not sufficient to show that a law prohibiting the sale of intoxicating liquors was in force in said county at the time of the prosecution and of the alleged offense; and the court could not instruct the jury that such law was in effect.
55 Tex. Crim. 545Forcy, Alias Jones v. State (1909)
1. —Passing Forged Instrument—Indictment—Tenor and Purport Clauses. Where in a prosecution for passing a forged instrument the tenor and purport clauses were intermingled, and not separate and distinct in the indictment, the same was insufficient. 2. —Same—Variance—Name of Injured Party. Where upon trial of passing a forged instrument there was a variance in the name of the injured party between the allegation and the proof, .there was reversible error.
55 Tex. Crim. 546Walker v. State (1909)
1. —Burglary—Daytime Breaking—Charge of Court. Where the indictment charged that the defendant unlawfully by force, threats and fraud burglariously, etc., broke and entered a house then and there occupied by prosecutor, etc., and the court’s charge covered either a daytime or a night-time burglary, there was no error in the court’s failure to limit the jury to the consideration of a daytime burglary. Following Carr v. State, 19 Texas Crim. App., 635. 2. —Same—Statement of Facts—Practice on Appeal. Where upon appeal the record contained no statement of facts, questions of fact could not be considered for revision.
55 Tex. Crim. 547Leary v. State (1909)
1.—Murder—Charge of Court—Insanity—limiting Testimony Where, upon trial for murder the defendant relied upon the issues of self-defense and insanity, and there was evidence on the issue of insanity that the defendant had made an assault upon his relatives, it was proper that the court in his charge limited this testimony to the specific issue of insanity. 2.—Same—Charge of Coui't—Assuming Facts—Hearsay. Upon trial for murder resulting in a verdict for manslaughter, where the court assumed a state of facts which was not proven, the same was reversible error although the testimony upon which such charge was based was hearsay but not objected to by the defense, the same being material.
55 Tex. Crim. 550Jarrett v. State (1909)
The opinion states the case.
55 Tex. Crim. 551Steel v. State (1909)
The opinion states the case.
55 Tex. Crim. 557Jackson v. State (1908)
1. —Illegally Pursuing the Practice of Bartering—Information—Constitutional Law—Occupation Tax—Mechanical Pursuit. The Act of the Thirtieth Legislature, page 275, regulating the practice of bartering, etc., contravenes article 8, section 1, of the Constitution of Texas, declaring that mechanical pursuits shall not be subject to an occupation tax, and is therefore unconstitutional. 2. —Same—Equal and Uniform Taxation. The Act of the Thirtieth Legislature, page 275, contravenes article 8, section 1 of the Constitution of Texas in that the same is not equal and uniform taxation, and contains numerous exemptions not based upon any reasonable or rational classification. 3. —Same—Special Privileges—Bill of Rights. The Act of the Thirtieth Legislature, page 275, contravenes section 3 of the Bill of Rights of Texas in that it grants special privileges to certain individuals, and denies such privileges to others who follow the same occupation. 4. —Same—Tax—License. The Act of the Thirtieth Legislature, page 275, regulating the practice of bartering, levies a tax on the occupation of bartering, although it denominates the same as a license fee and requires a certificate of registration, etc., and is discriminatory and unequal taxation, and therefore unconstitutional. Ramsey, Judge, dissenting. . [Rehearing denied March 23, 1909.—Reporter.]
55 Tex. Crim. 563Smith v. State (1908)
1. —Burglary—Charge of Court—Insanity—Burden of Proof. Where upon trial for burglary the defense was insanity, the court correctly charged that the law presumes the defendant to be sane, and the burden rests on him to show by a preponderance of the evidence the facts constituting menta] disorder or insanity, and there was no error in refusing requested charges to the effect that if the evidence of the defense showed insanity, that then the burden shifted to the State. 2. —Same—Charge of Court—Diseased Condition of Mind. Where upon trial for burglary the court charged upon the issue of insanity that if the defendant did not know the result of the nature of the act he was doing, or if he knew, that he did not know he was doing wrong, etc., there was no merit in the contention that insanity, is itself a diseased condition of the mind and not a result of such diseased condition, which contention was based on the court’s charge that insanity was created and produced by a diseased condition of the mind. 3. —Same—Argument of Counsel—Charge of Court. Where upon trial for burglary the State’s counsel in his argument said that he wanted a verdict of guilty because he did not want the jury to set a precedent for turning people loose on a plea of insanity, and defendant’s counsel would thereupon be pleading insanity for everybody charged with crime, and that the jury might as well tear down the courthouse and burn the court’s docket; that they should convict defendant, and if they wanted to recommend executive clemency to come to State’s counsel and he would help to get the defendant pardoned, the same was reversible error, although the defense did not request .special charges to have all this language withdrawn from the jury, and the court did instruct the jury to ignore with reference to some of it. 4. —Same—Question of Fact—Kleptomania. Where upon trial for burglary the defense was kleptomania, a species of insanity, and there was conflict in the testimony between the State and the defense upon the issue, the question was one of fact for the jury.
55 Tex. Crim. 572Brown v. State (1909)
1. —Perjury—Justice of the Peace—Jurisdiction—Constitutional'Law. A justice of the peace has no authority, as such to act out of his precinct and in the precinct of another justice of the peace hold a court of inquiry. 2. —Same—Court of Inquiry. A justice of the peace of one precinct can not go into the precinct of another justice of the peace and issue process in that precinct and institute and hold a court of inquiry under article 941, Code Criminal Procedure; especially where there is a resident authorized and qualified justice of the peace in said latter precinct. 3. —Same—Examining Trial—Magistrate. Where a justice of the peace is acting' under article 941, Code Criminal Procedure, he is not sitting as a magistrate in an examining trial, but only in his capacity as justice of the peace ferreting out or attempting to ferret out crimes against unknown violators of the law. 4. —Same—Examining Trial—Difference Between Magistrate and Justice of the Peace. A justice of the peace is not sitting as a magistrate until the accused is arrested and brought before him for an examining trial. The difference between the office of magistrate and that of justice of the peace presiding over a court of inquiry is decidedly marked and evident; and where he sits as an examining court in his own precinct, he is a magistrate and his jurisdiction is coextensive with the limits of his county. Following Hart v. State, 15 Texas Crim. App., 202, and other cases. 5. —Same—Case Stated—Want of Jurisdiction—Perjury. Where upon trial for perjury it was shown that the justice of the peace before whom the alleged perjury was committed went into another justice’s precinct in his county where there was a resident qualified justice of the peace, and there as justice of the peace held a court of inquiry in which such testimony was taken. Held that such visiting justice had no jurisdiction or authority to hold such court of inquiry, and such testimony could not form the basis for perjury. 6. —Same—Confession—Arrest—Impeachment. Upon trial for perjury it was reversible error to permit the State to introduce in evidence the verbal confessions of the defendant while under arrest, to impeach him; said confessions not being in writing and not otherwise in compliance with the Act of the Thirtieth Legislature, page 219.
55 Tex. Crim. 583Snead v. State (1909)
1.—Selling Intoxicating liquors Without license in local Option Territory— Prescription of Physician—Information. The Act of the Twenty-fifth Legislature imposing an occupation tax upon persons, etc., selling intoxicating liquors in local option territory, is valid, and a conviction can he had thereunder against any person, etc., who engages in the sale of intoxicating liquors in such local option territory without license; it was not necessary to allege that defendant was pursuing the occupation without license to sell under prescription of a physician, and an information which followed approved precedent is sufficient to sustain such prosecution and conviction. Following Cunningham v. State, 52 Texas Crim. Rep., 522; Robinson v. State, 75 S. W. Rep., 526. 2. —Same—Repeal—Conflict of law—Statutes Construed. The provision of the Act of the Twenty-fifth Legislature providing for license in "local option territory was not intended to be repealed by and is not in conflict with the Act of the Thirtieth Legislature, popularly known as the Baskin-McGregor Law; and by the expression and language contained in the last named Act that no license shall issue in local option territory, was meant that the character of the license provided under said Baskin-McGregor Law should not be issued in local option territory. This construction is borne out by the latter law, and other contemporaneous legislation. 3. —Same—Evidence—Identification of Intoxicating Liquors. Where upon trial of selling intoxicating liquors without license in local option territory, the evidence showed that the liquor sold by another party was the same kind of liquor sold by the defendant, and that both received the same from the same source and that this was testified to by the defendant, there was no error in admitting testimony of witnesses who testified that they had drank certain liquor bought from said other party. 4. —Same—Evidence—Intoxicating Liquors. Upon trial of selling intoxicating liquors in local option territory without license, the fact that another person was not prosecuted for having sold the same kind of liquor could be no defense for the defendant having done so, if the liquor was in fact intoxicating; and there was no error to admit testimony to explain why said other party was not being prosecuted, it having been shown by defendant that this other party had sold the same liquor and was not being prosecuted. 5. —Same—Evidence Drawn Out by Defendant. Where upon trial of selling intoxicating liquors in local option territory without license, the State was permitted to show that people had been seen drunk about defendant’s place of business, there was no error, as this testimony was drawn out by the defendant. 6. —Same—Intoxicating Liquors—Evidence—Alcohol—Hearsay. Upon trial of selling intoxicating liquors in local option territory without license, there was no error in excluding testimony of a witness to the effect that he had seen the manufacture of certain non-intoxicants and certain intoxicants in a certain brewery, and what he had been told as to the percentage of alcohol contained therein; the witness himself having no knowledge of how much alcohol said liquors contained, except what he had been told. 7. —Same—Charge of Court—Words and Phrases. Upon trial of selling intoxicating liquors in local option territory without license, where the charge of the court, considered as a whole, was not subject to any fair criticism that a certain sentence contained therein made it objectionable, there was no error.
55 Tex. Crim. 596McDowell v. State (1909)
The opinion states the case.
55 Tex. Crim. 601Underwood v. State (1908)
1. —Theft from a Person—Charge of Court—Alibi. Where upon trial of theft from the person the defendant’s testimony did not exclude the idea that he was not there when the property was taken; and the court fairly submitted defendant’s ease in respect to the matter of guilty participation by him in the theft under the evidence, there was no error in the court’s failure to submit defendant’s requested charge on alibi. 2. —Same—Evidence—Cross-Examination—Conversation—Harmless Error. Upon trial of theft from the person of a watch, where defendant’s witness testified that he had seen the watch in defendant’s possession some time before the theft, where upon cross examination the State asked the witne-.s what was the first thing said about the watch, the witness answered that the defendant said he swapped for it, whereupon defendant’s counsel asked witness to state all the appellant said how he came by the watch, to which the court sustained an objection. Held while the evidence was admissible as part of the entire conversation, yet the answer of the witness being favorable to the defendant, and in view of the fact that defendant himself testified to all the circumstances of his possession of the watch, the error, if any, was harmless. [Motion for rehearing overruled March 30, 1909.—Reporter.]
55 Tex. Crim. 606Tubb v. State (1908)
1. —Murder—Change of Venue—Discretion of Court. Where the application for change of venue on the ground of prejudice was disproved by the State, and the trial court found on the question of fair and impartial trial from testimony pro and con that this ground should also be overruled, there was no error, there being no abuse of the court’s discretion. Following Cox v. State, 8 Texas Crim. App., 254, and other cases. 2. —Same—Bill of Exceptions—Motion for New Trial. Where upon appeal from a conviction of murder the bill of exceptions was too general and not approved by the court, the same could not be considered; however, where the objection was to a charge of the court, it could be raised in a motion for new trial. 3. —Same—Charge of Court—Insanity—Delusion. Where upon trial for murder the defense under the evidence raised the issue of insanity, having the same relation to all persons, it was not required in the court’s charge on insanity to present the peculiar phase of insanity which rendered the defendant irresponsible for his acts at the time of the killing of the deceased, or that he had a special delusion with reference to the deceased alone. Distinguishing Merritt v. State, 39 Texas Crim. Rep., 70; approving Hurst. v. State, 40 Texas Crim. Rep., 378. 4. —Same—Charge of Court See opinion for charge of court in respect to the law of insanity upon trial for murder held to be sufficient. Following Sartin v. State, 51 Texas Crim. Rep., 571, 103 S. W. Rep., 875, and other cases. 5. —Same—Expert Opinion—Evidence—Paranoiac. Upon trial for murder there was no error to show by the testimony of an expert that where a paranoiac is on trial and his insanity is plead and the witnesses testify in his presence that he is insane, he will reject and denounce them, in the courtroom and elsewhere. This was no reference to defendant’s failure to testify. Following Burt v. State, 38 Texas Crim. Rep., 397. 6. —Same—Bill of Exceptions—Motion for Hew Trial. Where a defendant objected to evidence and saved the point by bill of exceptions, it is not required that the same matter should again be urged in the motion for new trial to make its review in the Appellate Gourt possible. 7. —Same—Bill of Exceptions—Practice on Appeal. Where upon trial for murder the defendant objected to the testimony of an expert as to what defendant’s conduct would be in case he would have pleaded insanity, the Appellate Court will not treat the matter in an abstract sense merely, but as the matter would have been understood by the jury, and will not disregard the bill of exceptions because it failed to set out the matter fully, as contended by the State. 8. —Same—Evidence—Bill of Exceptions—Harmless Error. Where an objection goes to the whole testimony involving a number of different statements, some of which are admissible and some inadmissible, and there is nothing in the objection or bill of exceptions to direct the challenge or single out the objectionable testimony, such bill of exceptions should not be considered on appeal-; besides where such testimony though subject to criticism is not of such importance as to require reversal, there was no error. 9. —Same—Jury and Jury law—Opinion of Juror. Where upon trial for murder the only defense was insanity, and the defendant objected to a certain juror because the latter had expressed an opinion with reference to the general issue of guilt of the defendant; and the juror upon voir dire stated that he would try the defendant fairly and impartially and in accordance with the law and the evidence, there was no error in overruling defendant’s challenge. Following Adams v. State, 35 Texas Crim. Rep., 285, and other cases. 10. —Same—Evidence—Opinion of Witness. Where upon trial for murder the court correctly received the evidence as to the opinion of witnesses in respect to the sanity of the defendant, there was no error. 11. —Same—Evidence. Upon trial for murder there was no error in permitting the jailor who had defendant in custody to state his observation of the defendant while in jail, with reference to his plea of insanity, and that defendant said that he did not wish to shave, that he might need his whiskers; no injury to defendant’s right having been shown. 12. —Samé—Charge of Court—Murder in Second Degree—Manslaughter. Where defendant was convicted of murder in the first degree there was no error that the court charged on murder in the second degree and manslaughter, although the court was not required under the evidence to charge on manslaughter. 13. —Same—Insanity—Sufficiency of the Evidence. Where upon trial for murder the only defense was insanity, and that issue was submitted to the jury under a proper charge of the court, a conviction of murder in the first degree will not be disturbed. [Rehearing denied March 20, 1909.—Reporter.]
55 Tex. Crim. 628Smith v. State (1908)
1. —Assault to Murder—Continuance—Affidavit. Where upon motion for new trial, after conviction of assault to murder, the absent witness for whom a continuance had been asked stated in his affidavit to said motion that if present he would not have testified as set up in defendant’s application for continuance, there was no error in overruling the motion. 2. —Same—Second Application. Where upon trial for assault to murder defendant’s second application for continuance did.not show reasonable diligence, the same was correctly overruled. . 3. —Same—Evidence—Reputation of Party Injured—Statutes’ Construed. Where upon trial for assault to murder the defendant had testified to certain communicated threats against him, by the injured party, there was no error in permitting the State to introduce in evidence the general reputation of the party injured. Article 713, Penal Code, applies as well to cases of assault to murder as to cases of murder. [Behearing denied March 20, 1909.—Beporter.]
55 Tex. Crim. 631Hardin v. State (1909)
1. —Perjury—Evidence—Collateral Pact. Upon trial for perjury where the defendant was charged with falsely swearing that he killed deceased in a certain homicide with which defendant’s brother was charged, the prosecution could show that the defendant did not do the killing, while the defense could show that he did. 2. —Same—Evidence—Cross-Examination. Where upon trial for perjury the State was permitted to prove the relative size and strength of certain parties engaged in the homicide out of which the charge of perjury arose, it was permissible for the defense to introduce similar testimony on cross-examination. 3. —Same—Evidence—Other Transactions. Upon trial for perjury where the defense claimed that the defendant and not his brother committed the homicide out of which the perjury arose, it was error to permit the State to show that after the officer had arrested defendant’s brother for said homicide, some one handed the officer a knife, without showing that the latter had used such knife. 4. —Same—Evidence—Irrelevant Testimony. Upon trial for perjury which arose out of a certain homicide in which the State claimed that the brother of the defendant and not the defendant did the killing, and the defense claimed that the defendant did it, it was error to permit the State in order to establish the killing as claimed by the State to show that a certain State’s witness owned a knife and missed the same about two weeks before the killing; there being no testimony that the brother of the defendant ever had this knife in his possession. 5. —Same—Evidence—Bill of Exceptions. Where upon appeal from a conviction of perjury the bill of exceptions showed that the State had been permitted to introduce testimony, in order to establish the fact that defendant’s brother and not the defendant had committed a certain homicide out of which the perjury arose, why certain witnesses in said murder trial left the State, without connecting the matter up properly to show its relevancy, the same was error. 6. —Same—Impeaching Witnesses. Upon trial for perjury wherein it was claimed by the State that the defendant falsely swore that he and not his brother committed a certain homicide, the fact that defendant was tried for simple assault upon the person killed in said homicide could not legitimately be used by the Stat-. to prove that defendant swore falsely when he said that he killed such person. 7. —Same—Evidence—Credibility of Witness. Where upon trial for perjury growing out of a certain homicide wherein the State claimed that the defendant falsely swore that he and not his brother committed the same, there was no error on cross-ex..mination of defendant’s brother to show that the latter had been three times tried and twice convicted on the charge of said homicide, the court in his charge properly limiting this testimony to the credibility of said witness. 8. —Same—Evidence—Controverted Judgment. Upon trial for perjury growing out of a certain homicide wherein the State claimed that the defendant falsely swore that he and not his brother did the killing, it was error to permit the State to show that the defendant was tried for simple assault growing out of the difficulty which resulted in said homicide. 9. —Same—Impeaching Witnesses. Upon trial for perjury where the State claimed that the defendant had falsely sworn that he and not his brother committed a certain homicide, there was no error in the State’s effort to impeach the testimony of defendant’s witnesses by showing that they swore differently with reference to said homicide in a certain assault case growing out thereof; the court properly limiting said testimony. 10. —Same—Evidence—Irrelevant Testimony. Where upon trial for perjury in which the State claimed that the defendant falsely swore that he and not his brother committed a certain, homicide, the State had been erroneously permitted to show that defendant was prosecuted for a simple assault, the defendant should have been permitted to show that such case of assault had been dismissed before he testified in the homicide case in which his brother was tried, and in which homicide case defendant swore that he did the killing. 11. —Same—Evidence—Bill of Exceptions. Where upon trial for perjury the State on cross-examination of defendant attempted to show that the defendant made other statements than those he made on his trial and which agreed with the theory of the prosecution that he had sworn falsely with reference to committing a certain homicide, and the bill of exceptions did not show what the answer of defendant to the State’s question would have been, the same could not be considered on appeal. However, it was permissible for the State to show that defendant had made different statements than those he made on his trial. 12. —Same—Evidence—Cross-Examination—Defendant as Witness. Upon trial for perjury wherein the State claimed that the defendant had falsely sworn that he and not his brother committed a certain homicide, it was error to permit the State on cross-examination of defendant’s brother who testified that defendant and not he committed the homicide, to ask said witness whether he had ever testified in his own case wherein he was charged with said killing.
55 Tex. Crim. 638Schoennerstedt v. State (1909)
The opinion states the case.
55 Tex. Crim. 640Henderson v. State (1908)
1. —Embezzlement—Husband- and Wife—Separate Property—Agency. Where upon trial for embezzlement of a horse, the husband in the presence of the wife authorized the defendant to sell the horse with the knowledge and consent of prosecutor’s wife, the agency of the husband was implied, and the defendant thereby became the valid agent of the husband, to sell the horse which was the separate property of the wife. Following McGee v. White, 23 Texas, 180, and other cases. 2. —Same—Proceeds of Sale. Where upon trial of embezzlement of a horse the evidence showed that the defendant as agent of the prosecutor disposed of the horse and appropriated the proceeds, the contention that he was guilty of embezzlement of the proceeds of the sale of the horse, if guilty at all, and not of embezzlement of the horse was untenable. Following Epperson v. State, 22 Texas Crim. App., 694, and other cases. 3.—Same—Charge of Court—Appropriation—Fraudulent Intent—Conversion. Where upon trial of embezzlement of a horse the court in his charge instructed the jury that they must find beyond a reasonable doubt that the defendant at the time of the sale or pledge of the horse must have" had the fraudulent intent to appropriate the proceeds of said sale or pledge to his own use, and that a subsequent intent to appropriate would not make him guilty of the offense charged, there was no error in refusing a requested similar charge on the same subject. 4. —Same—Conversion—Intent. Upon trial for embezzlement of a horse where the evidence showed the defendant either sold or pledged the horse intrusted to him as agent to sell for the owner, and appropriated the proceeds to his own use, it was not required in the court’s charge that the jury must find as a fact that the defendant sold or pledged the horse as his own property; there being no question that the defendant dealt with the horse as his own property. And the question was whether the defendant at the time of the conversion had the specific intent to defraud the owner. 5. —Same—Specific Intent—Conversion. Upon trial of embezzlement of a horse where the evidence showed that the defendant was authorized by the owner to sell the horse and turn over the proceeds to the latter, and that the defendant either sold or pledged the horse and appropriated the proceeds to his own use, the question was whether the defendant at the time of the sale had in his mind the specific intent to misapply the proceeds of such sale or pledge; if he did he was guilty of embezzlement of the horse, and where the court properly submitted this issue, there was no error. Following Leonard v. State, 7 Texas Crim. App., 417. 6. —Same—Charge of Court—Grouping Facts. Where upon trial of embezzlement of a horse the court’s charge left it to the jury to find the facts with reference to agency, possession and sale of the alleged horse, there was no error.
55 Tex. Crim. 649Evans v. State (1909)
1. —Murder—Forcible Absence of Witness'. Where upon trial for murder there was no motion to continue or postpone the case on account of the absent witness, nor was any process had to secure his attendance, the contention that said witness was prevented from attending trial by force, etc., could not be considered on appeal. 2. —Same—Newly Discovered Evidence. Where upon motion for new trial it appeared that the alleged newly discovered testimony was merely cumulative, and besides there was a want of diligence to have discovered such testimony, there was no error in overruling the motion. [Rehearing denied March 23, 1909.—Reporter.]