56 Tex. Crim.

Volume 56 — Texas Criminal Reports

173 opinions

56 Tex. Crim. 1Ex Parte Wilson (1909)
The opinion states the case.
56 Tex. Crim. 6Hare v. State (1909)
The opinion states the case.
56 Tex. Crim. 10Walters v. State (1909)
Assault to Rob—Insufficiency of the Evidence. Where upon trial for assault with intent to rob, the evidence failed to show sufficient facts to constitute this offense the conviction could not be sustained. Distinguishing Long v. State, 55 Texas Crim. Rep., 55. Following Johnson v. State, 35 Texas Crim. Rep., 140; Herr v. State, 52 Texas Crim. Rep., 53, and other cases.
56 Tex. Crim. 12Gay v. State (1909)
Carrying Pistol—Insufficiency of the Evidence. Where upon trial for unlawfully carrying a pistol the testimony showed that the witness, defendant and others were on horseback at night, and that some one in the crowd said he was going to shoot, and that a shot was tired but witness did not know who fired the shot and saw no pistol on or about defendant; and defendant denied on the witness stand that he fired the shot or had a pistol, the conviction could not be sustained.
56 Tex. Crim. 14Ellis v. State (1909)
The opinion states the case.
56 Tex. Crim. 16Baker v. State (1909)
The opinion states the case.
56 Tex. Crim. 18Cassens v. State (1909)
Selling Intoxicants to Minor—Appeal from Justice Court—Jurisdiction. Where a misdemeanor was tried originally in the justice court and upon conviction appealed to the county court, and upon trial de novo resulted in a conviction and a fine of $25, the latter was a finality and ah appeal to this court did not lie. Following Tison v. State, 35 Texas Crim. Rep., 360, and other cases.
56 Tex. Crim. 19Williams v. State (1909)
Tried below before the Hon. F. E. Adams. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the county jail.
56 Tex. Crim. 19Wlliams v. State (1909)
56 Tex. Crim. 20Morrison Sr. v. State (1909)
Disturbing Public Peace—Cursing in Public—Grand Jury—Contempt. Where upon trial for willfully swearing and cursing in a public place etc., the evidence showed that the defendant in testifying before the grand jury stated in response to a question by the district attorney that it was none of his damn business, a conviction could not be sustained under the statute; although such conduct was probably a contempt.
56 Tex. Crim. 22Ellis v. State (1909)
Local Option—Death of Judge—Statement of Facts. Where upon appeal from a conviction of a violation of the local option law the record showed an agreed statement of facts, there was no merit in the contention that the trial judge had died subsequent to the trial and before the statement of facts was made up; there being no bill of exceptions in the record showing that appellant had been deprived of any right by reason of the death of said judge.
56 Tex. Crim. 23Ballentine v. State (1909)
1. —Burglary—Charge of Court—Aggravated Assault—Intent to Rape. Where defendant was charged with the offense of burglary with intent to commit rape, and the evidence showed that he entered the alleged house at night and indecently handled the person of prosecutrix, and then fled when she made an outcry, the court was not required to charge on aggravated assault, he having charged the jury that they could not convict defendant unless he had the specific intent to commit rape, and that if he entered said house with any other purpose and intent they must acquit him; the court having previously defined rape and a breaking which constituted burglary. Qualifying Ballentine v. State, 52 Texas Crim. Rep., 369.—Davidson, Presiding Judge, dissenting. 2. —Same—Intent—Sufficiency of the Evidence. Where upon trial for burglary the evidence showed that defendant entered the alleged house at night and indecently handled the person of prosecutrix, and upon her making an outcry fled, etc., and there was nothing to indicate that defendant had any other intent than that of rape, and the court submitted the issue that if defendant had any other intent to acquit, the conviction for burglary with intent to rape will not be disturbed.—Davidson, Presiding Judge, dissenting. [Rehearing denied April 14, 1909.—Reporter.]
56 Tex. Crim. 28Jackson v. State (1909)
1. —Murder—Sufficiency of the Evidence. Where upon trial for murder the evidence showed that the defendant had made frequent and recent threats to kill his wife, and had been living in open adultery with another woman, a conviction of murder in the first degree was sustained; although the defendant claimed the killing was accidental, and there was strong evidence tending to sustain this view. 2. —Same—Argument of Counsel. Where upon trial for murder the State’s counsel called the defendant a brute, and the missing link in the chain of beings, and the court instructed the jury in writing to disregard these remarks, there was no error. 3. —Same—Argument of Counsel. Where upon trial for murder the State’s counsel vigorously asserted his belief in the guilt of the defendant, and that if he believed him, innocent he would have dismissed the case, and the court cautioned the jury that counsel must adhere to the facts, and no special instruction to disregard these remarks was requested by the defense, there was no error. 4. —Same—Argument of Counsel. Upon trial for murder there was no error in State’s counsel argument that defendant had failed to place upon the witness stand his father, who was shown to have been present at the trial and must have known the facts and circumstances of the offense charged. 5. —Same—Argument of Counsel. Upon trial for murder there was no error in the argument of State’s counsel severely attacking the credibility of defendant’s main witness; besides there was no charge requested by the defendant to disregard such argument.
56 Tex. Crim. 32Dies v. State (1909)
1. —Rape—Indictment—Venue—Constitutional Law. Under the Act of June 18, 1897, Special Session Twenty-fifth Legislature, p. 16, prosecutions for rape may be commenced and carried on in the county in which the offense was committed or in any county of the judicial district in which the offense was committed, etc., and an indictment for rape found in a county of the judicial district in which "the offense was committed is valid; and said act does not contravene either the State or the Federal Constitution. Following Mischer v. State, 41 Texas Crim. Rep., 212. 2. —Same—Jury and Jury Law—Challenge for Cause. Where upon trial for rape, a juror on his voir dire stated that he had a general prejudice against the crime of rape but that he could try the case fairly and impartially upon the law and the evidence, and the court overruled the challenge for cause, and defendant thereupon exhausted his peremptory challenges on said juror, but thereafter the court on reconsideration held that said juror was subject to challenge for cause, and granted the defendant an additional peremptory challenge, there was no error. 3. —Same—Evidence—Outcry—Identification—Withdrawal of Testimony. Where upon trial for rape, testimony was admitted that some time after the alleged rape prosecutrix told her aunt that defendant had raped her, but the court thereafter withdrew from the consideration of the jury the fact of the identification of defendant and simply left the question of outcry without any details before the jury, there was no error; there being no issue as to want of consent or that any one else than defendant had committed the offense. 4. —Same—Argument of Counsel. Where upon trial for rape the counsel for the State in response to argument made by defendant’s counsel incidentally referred to testimony which had been withdrawn from the jury by the court, to which the defense objected but submitted no instruction to have same withdrawn, and the remarks of State’s counsel were not of such character as to impair the rights of defendant or prejudice his case before the jury, there was no error. 5. —Same—Charge of Court—Attempt to Rape—Assault with Intent to Rape —Sufficiency of the Evidence. Where upon trial for rape the evidence showed that the prosecutrix was under the age of fifteen years at the time of the outrage; that defendant assaulted her and there were incontestable facts that he outraged her, the conviction was sustained for rape, and the court was not required to submit to the jury the issues of attempt to rape, or assault with intent to rape. [Rehearing denied April 14, 1909.—Reporter.]
56 Tex. Crim. 39Potts v. State (1909)
The opinion states the case.
56 Tex. Crim. 50Wyatt v. State (1909)
1. —Disturbing Sunday-School—Charge of Court. Where upon trial of wilfully disturbing a congregation in Sunday-School the court properly charged the law applicable to the facts, there was no error. 2. —Same—Charge of Court—Part of Congregation. Where upon trial of wilfully disturbing a congregation at Sunday-School, the court charged that if the jury believed beyond a reasonable doubt that the defendant wilfully disturbed any congregation, or part thereof, etc., at Sunday-School to find defendant guilty, there was no error. Following Love v. State, 35 Texas Crim. Rep., 27.
56 Tex. Crim. 51Crowson v. State (1909)
The opinion states the case.
56 Tex. Crim. 52Benson v. State (1909)
1.—Murder—Allusion to Former Conviction—Argument of Counsel. Where upon trial for murder the court permitted the district attorney on cross-examination of a witness to refer to a former conviction of the defendant wherein the death penalty had been assessed against him, and to lay stress on this matter in his argument before the jury, there was reversible error; and this although defendant had theretofore been acquitted of murder in the first degree; and defendant’s counsel in his examination in chief casually referred to the fact that defendant had appealed his case. Following Hatch v. State, 8 Texas Crim. App., 416, and other cases. 2. —Same—Charge of Court—Appearance of Danger. Where upon trial for murder the evidence raised the issue of the reasonable apprehension of danger as it appeared to the defendant, the court should not have confined his charge to an actual attack by the deceased upon defendant. 3. —Same—Charge of Court—Manslaughter. Upon trial for murder where the charge of the court upon the issue of manslaughter was in accord with recent precedent there was no error. Following Waters v. State, 54 Texas Crim. Rep., 322. 4. —Same—Charge of Court—Murder in the Second Degree—Manslaughter. Where upon trial for murder the court’s charge as a whole upon the issue of murder in the second degree and manslaughter went no further than to advise the jury that if they found defendant guilty they were required to state the grade of the offense and name the punishment assessed therefor, but if they did not find that the killing was unlawful they should acquit the defendant, there was no error. 5. —Same—Charge of Court—Impeaching Testimony. Where upon trial for murder the court’s charge upon impeaching testimony gave the jury the right arbitrarily to disbelieve or discredit the testimony of the witnesses, the same is error.
56 Tex. Crim. 61Early v. State (1909)
1. —Robbery—Description of Money Stolen—Variance. Where the indictment in a prosecution for robbery charged the taking of one ten dollar bill and one five dollar bill, current money of the United States of America, of the value of fifteen dollars, and the evidence showed only that defendant took “a ten dollar bill and a five dollar bill,” without showing that-these were United States currency of any kind, the conviction could not be sustained. 2. —Same—Charge of Court—Accomplice Testiomny. Where upon trial for robbery the court in charging upon accomplice testimony instructed the jury that there must be other testimony to corroborate the testimony of the accomplice tending to connect the defendant with the offense, the same was reversible error. Following Jordon v. State, 51 Texas Crim. Rep., 145, and other cases.
56 Tex. Crim. 62Robinson v. State (1909)
1. —Theft of Horse—Election hy State. Where upon trial for theft of a horse the indictment contained two counts, but charged but one felony, the State could not be required to elect between counts, the evidence showing that the offense was one and the same transaction. Following Thompson v. State, 32 Texas Crim. Rep., 205, and other cases. 2. —Same—Practice in District Court. Where upon trial for theft of a horse it appeared that two indictments were pending against the defendant, charging the same offense, there was no error in permitting the State to try the case in which the indictment was not defective, and which had been substituted for the first indictment which was defective. 3. —Same—Former Jeopardy—Practice. Where upon trial for theft of a horse, the defendant asked a postponement of the trial to file his plea of former jeopardy, which was granted, and thereupon he filed a motion that the court should first take action on another case against defendant which charged the same offense, hut in which the indictment was defective, and refused to file his plea of former jeopardy until said motion was acted upon by the court, which the court refused, there was no error; besides the nature of defendant’s plea of jeopardy was not disclosed. 4. —Same—Sufficiency of the Evidence. Where upon trial for theft of a horse the evidence was sufficient to sustain the conviction, the verdict will not be disturbed.
56 Tex. Crim. 65Mendoz v. State (1909)
Abandonment of Wife—Affidavit—Information. In a prosecution of husband abandoning wife, where there was no affidavit supporting the information, the prosecution could not be maintained.
56 Tex. Crim. 66Ex Parte Thomas (1909)
The opinion states the case.
56 Tex. Crim. 68Pickett v. State (1909)
The opinion states the case.
56 Tex. Crim. 68Ex Parte King (1909)
Murder—Habeas Corpus—Evidence—Bail. Where relator who was charged with murder applied for bail by writ of habeas corpus to a district judge, which was denied, and upon appeal it appeared that there was no error in the judgment of the court below, the same is affirmed.
56 Tex. Crim. 73Trail v. State (1909)
1. —Scire Facias—Bail Bond—Judgment Nisi—Capias. It is not necessary or material in a proceeding to forfeit a bail bond to show the defendant was arrested; and there was nothing in the contention that the capias by which defendant was arrested failed to charge an offense. Following Werbiski v. State, 20 Texas Crim. App., 131. 2. —Same—Bail Bond—Variance—Judgment Nisi. In a forfeiture of a bail bond it is not necessary that either the bond or the judgment nisi should state whether the party was accused by information or complaint, and it is immaterial that the judgment nisi recited that the principal was charged by information, whereas the bond stated that he was charged by complaint. 3. —Same—Joint and Several Obligation. Where the forfeited bond was a joint and several obligation, the judgment nisi was correctly rendered against each surety for the full amount of the bond; besides even if the obligation was a joint one, the judgment could be corrected. Following Rainbolt v. State, 34 Texas, 286, [Rehearing denied April 28, 1909.—Reporter.]
56 Tex. Crim. 75Coffman v. State (1909)
1. —Murder—Continuance. Where the absent witness was out of the State and beyond the jurisdiction of the court, and no effort was made to secure his testimony, there was no error in overruling the motion for continuance. 2. —Same—Continuance—Death of Witness. Where upon trial for murder the record disclosed on appeal that the witness for whom continuance had been sought at the trial had died before the motion for new trial was refused, and that he had not testified at any previous trial so that his testimony could have been reproduced, there was no error in overruling the motion for new trial. 3. —Same—Charge of Court—Mutual Combat—Self-Defense. Where defendant was convicted of murder in the second degree and the evidence remotely suggested a mutual combat between defendant and deceased, and that if such occurred it was with deadly weapons, and the homicide could not possibly have been lower than murder in the second degree, there was no error in the court’s failure to charge upon mutual combat; besides such a charge would have destroyed defendant’s theory of self-defense. 4. —Same—Charge of Court—Principals. Where upon trial for murder the defendant testified positively that he did the killing in self-defense, there was no error in the court’s failure to charge upon the law of principals because the State’s testimony suggested that defendant and his father were acting together in bringing about the homicide. 5. —Same—Charge of Court—Self-Defense—Threats. Where upon trial for murder the court’s charge on self-defense and the law of threats fully presented the law of the case, there was no error. 6. —Same—Sufficiency of the Evidence. Where upon trial for murder there was sufficient evidence to support the conviction of murder in the second degree, there was no error.
56 Tex. Crim. 78Carroll v. State (1909)
The opinion states the case.
56 Tex. Crim. 79Skaggs v. State (1909)
1.—Burglary—Ownership—Possession—Want of Consent. Where the indictment for burglary alleged that the house alleged to have been burglarized was occupied by B., and the evidence showed that B. did own the house and that it was his residence, but that sometimes he was away from home for a day or two ;and that during his absence the house was virtually in control of a sister, it was not required of the State to show want of consent on the part of the sister; besides this question was not sufficiently raised in the motion for new trial. 2. —Same—Different Owners—Want of Consent. Where two or more parties may be owners of property, it is sufficient to allege the ownership in either, and the State would only be required to prove the want of consent of the alleged owner. If the others had given consent, it is a matter defendant might prove to show want of fraudulent intent. 3. —Same—Charge of Court—Recent Possession—Explanation. Where upon trial for burglary the evidence showed that defendant shortly after the alleged burglary had the stolen property in his possession and made the statement that he had bought it, the court correctly charged the law of property recently stolen found in the possession of defendant and his explanation thereof, and the same being in proper form, was not on the weight of the evidence. 4. —Same—Sufficiency of the Evidence. Where upon trial for burglary the evidence was sufficient to support the verdict of guilty, the same will not be disturbed.
56 Tex. Crim. 82Price v. State (1909)
The opinion states the case.
56 Tex. Crim. 84Leonard v. State (1909)
1. —Carrying Pistol—Reading Law Books—Practice—Remarks by Judge. Where upon trial for unlawfully carrying a pistol defendant read two cases from the Texas Criminal Reports, and thereupon the county attorney took the position in his closing speech that said cases did not apply, and the court agreed with him, there was no error. Argument on questions of law is addressed to the court and not to the jury. 2. —Same—Charge of Court—Knowledge. Where upon trial for unlawfully carrying a pistol the defendant claimed that his brother had placed the pistol in the buggy in which defendant was found with it, the court correctly charged that if the. defendant did not know of the pistol being under the cushion of said buggy, to acquit him 3. —Same—Charge of Court—Words and Phrases. Where upon trial for unlawfully carrying a pistol the court inadvertently left out the word “guilt” in his charge on reasonable doubt and presumption of innocence, there was no error.
56 Tex. Crim. 86Rodriguez v. State (1909)
Tried below before the Hon. E. A. Stevens. Appeal from a conviction of theft of a horse; penalty, two years confinement in the penitentiary.
56 Tex. Crim. 87Brown v. State. (1909)
The opinion states the case.
56 Tex. Crim. 92Becker v. State (1909)
1. —Injuring Fence of Another—Scope of law—Joint Owner. Article 794 Penal Code was designed for the better protection of agriculturists against wanton or reckless depredation of live stock upon their crops, etc. A joint owner is not justifiable in breaking a partition fence without the other’s consent. 2. —Same—Charge of Court—Consent of Joint Owner. Where upon trial for unlawfully injuring the fence of another without his consent there was evidence of an agreement between the parties to open a passage way across the land in question, the court correctly charged that if the defendant removed or readjusted the fence in question with the consent of the prosecutor to acquit the defendant. 3. —Same—Charge of Court—Good Faith. Where upon trial for unlawfully injuring the fence of another there was evidence of an agreement between the parties to readjust the fence in question, the court should have given a requested charge that if the jury believed from the evidence that defendant acted in good faith and believed that he had the right to remove the fence to acquit him. 4. —Same—Case Stated—Injury. Upon trial for unlawfully injuring the fence of another, if the evidence showed that the defendant without right and without the consent of the prosecuting witness interfered with and removed his fence and opened up across prosecutor’s premises a roadway, defendant could not claim that this was not an injury of prosecutor’s premises.
56 Tex. Crim. 94Raines v. State (1909)
1. —Forgery—Sentence—Motion for New Trial. Where defendant had been convicted of passing a forged instrument, and requested the court to pass sentence upon him at once, which was done, and did not file his amended motion for new trial until some seventeen days after conviction, and his original motion was not filed within two days after the verdict was returned, there was no error in striking out both the original and amended motion for new trial, this matter being within the sound discretion of the court, and no sufficient reason being shown that defendant’s rights were injured. 2. —Same—Notice of Appeal. Where the only notice of appeal was found in the final judgment in the sentence, it may be seriously questioned whether this is sufficient. 3. —Same—Right of Appeal—Motion for New Trial. A party may nevertheless prosecute an appeal, though he may not have filed a motion for new trial; such appeal however will not reach any defects or errors in the charge, under the construction placed upon article 723 Code Criminal Procedure. 4. —Same—Sufficiency of the Evidence—Comparison of Handwriting. Where upon trial for passing a forged instrument there was sufficient evidence to show that defendant knew the same was forged at the time he passed it, and that the witness who testified that the name of the maker was in the handwriting of appellant was sufficiently eorrohorated to show that defendant did know that the instrument was a forgery; and besides defendant testified that he wrote the check but did not sign the makers name to it, the conviction is sustained. Distinguishing Spicer v. State, 52 Texas Crim. Rep., 177.
56 Tex. Crim. 98Young v. State (1909)
The opinion states the case.
56 Tex. Crim. 99Maples v. State (1909)
The opinion states the case.
56 Tex. Crim. 100Janca v. State (1909)
The opinion states the case.
56 Tex. Crim. 101Lowry v. State (1909)
Tried below before the Hon. E. R. Campbell. Appeal from a conviction of burglary; penalty, two years confinement in the penitentiary.
56 Tex. Crim. 102Wright v. State (1909)
The opinion states the case.
56 Tex. Crim. 103Schoenfeld v. State (1909)
1. —Perjury—Indictment—Construction of Contract. The general rule is where the statement which is the basis of the accusation is a matter of construction, or a deduction from given facts, the fact it is erroneous, or is not a correct construction, or is not a logical construction from all the facts cannot constitute it perjury or false swearing. 2. —Same—Insufficient Pleading—Motion to Quash. Where in an indictment for perjury the same did not allege that the defendant denied that he had made any certain statement or that he had in terms promised to do any certain thing or that he had testified that he had made any particular statement, but was based on a statement of testimony as to his understanding or agreement; and did not set out the language used by the defendant or that of the parties with whom he was alleged to have made the contract, or in arriving at the alleged understanding and agreement, or to. even set out the substance thereof, but merely set out the testimony of the defendant in a civil suit with reference to his construction of said agreement which was alleged to be false, the same was bad on motion to quash.
56 Tex. Crim. 111Jay v. State (1909)
1. —Murder—Charge of Court—Cooling Time. Where upon trial for murder the evidence did not show that there had been an outrage upon defendant a short while before the homicide of sufficient moment to constitute adequate cause, but showed an unprovoked attack by defendant upon deceased with a knife, and that the latter was not anned, etc., there was no error in the court’s failure to charge on cooling time. 2. —Same—Charge of Court—Manslaughter—Sudden Transport of Passion. Where upon trial for murder the charge of the court defining manslaughter was correct, and the only objection was to the words, “in a sudden transport of passion,” there was no error. Following Waters v. State, 54 Texas Crim. Rep., 322. 3. —Same—Sélf-Defense—Charge of Court—Threats. Where upon trial for murder the court correctly charged on the issue of self-defense and communicated threats, viewing the charge as a "whole, there was no error. 4. —Same—Evidence—Bill of Exceptions—Positions of Parties. Upon trial for murder there was no error in permitting the State to show the position of the parties, defendant and deceased, shortly before the homicide, in order to show that the defendant had seen that the deceased had just been disarmed, etc.; and where the matter was so stated in the court’s explanation to defendant’s bill of exceptions, which lie accepted, there was no error. , 5. —Same—Evidence—Res Gestae—Threats. Upon trial for murder there was no error in admitting the declarations of the defendant, to the effect that when he was asked whether he was going to the show that lie replied, “No Sir, worse than the show.’’ This was res gestae and was admissible to show the state of defendant’s mind.
56 Tex. Crim. 118Halsford v. State (1909)
The opinion states the case.
56 Tex. Crim. 121Piper v. State (1909)
1. —Theft—Bailment—Statute Construed—Indictment. Article 877 Penal Code was designed to meet the facts of special cases, where, under the decisions, and provisions of our code, no conviction for theft could otherwise be had, and was not intended to constitute a departure or change the rule with reference to allegations or proof in respect to possession of property. 2. —Same—Possession. Article 877 was intended to meet cases where there was not a felonious taking of the property nor where possession of it was obtained by some deceit or false representation, but where the possession of property was obtained lawfully, in the sense that such possession was not criminal or covinous. 3. —Same—Statutes Construed. Under article 877 Penal Code, the language “by virtue of a contract of hiring or borrowing” is not meant such a contract as would give the borrower the right of possession against the actual owner, but as fixing the nature and character of the possession. Following Butler v. State, 49 Texas Crim. Rep., 159. 4. —Same—Case Stated—Bailment. Where upon trial for theft, under article 877 Penal Code, the defendant was charged with the possession of a certain diamond ring which he borrowed from prosecutrix, and that he fraudulently converted same to his own use, etc.; and the evidence showed that the prosecutrix was not the actual owner of the ring but had borrowed it from the actual owner, there was nothing in the contention that this was a variance between the allegation and the proof, and that this was not a lawful bailment because it was not made by the actual owner of the property or someone duly authorized by him to make the contract of bailment. 5. —Same—Venue—Conversion—Repudiation of Title. Under article 877, Penal Code, the venue of the offense can be laid in any county where the conversion takes place, and an act of repudiation of the owners title is a conversion, and it is not necessary to prove an actual disposition of the property by defendant before he is guilty of conversion. 6. —Same—Case Stated. Where upon trial for theft and fraudulent conversion, under article 877 Penal Code, the evidence showed that the prosecutrix borrowed a ring from another, and that she loaned this ring and two others to the defendant, that defendant pawned one of these rings in the county of the prosecution, and that he hypothecated the first ring in Tarrant County, and was afterwards arrested in Kansas City, the conviction was sustained both as to venue and fraudulent conversion.
56 Tex. Crim. 125Leggott v. State (1909)
Refusing to work on Public Road—Statement of Facts—Certificate—Filing. Where upon appeal it affirmatively appeared that the statement of facts was not made up by the court and was not signed by appellant’s counsel; and moreover was not filed, the same could not be considered.
56 Tex. Crim. 126Murphy v. State (1909)
1. —Carrying Pistol—Charge of Court. Where upon trial of unlawfully carrying a pistol the defendant claimed that the pistol had been given to him by one who had just found it with the request that he hand it to some one else, which he claimed he did; and the court submitted this issue to the jury, there was no error. 2. —Same—Charge of Court—Special Charge. Where the court charged that the jury were the exclusive judges on the weight of the evidence, the credibility of the witnesses and of the facts, but that they must be governed by the law as given them by the court, the same could not impair a special charge requested by the defendant. 3. —Same—Remarks of Judge—Bill of Exceptions. Where upon appeal there was no bill of exceptions to the remarks of the judge certifying to the alleged objection, the same could not be considered.
56 Tex. Crim. 127Diltz v. State (1909)
1. —Local Option—Complaint. Where upon appeal from a conviction of a violation of the local option law there was no complaint in the record to form the basis of an information the appeal must be dismissed. 2. —Same—Insufficiency of the Evidence. Where upon trial of a violation of the local option law, the evidence was insufficient to sustain .the conviction the case must be reversed. 3.—Same—Charge of Court—Weight of Evidence. Where upon trial of a violation of the local option law, the evidence was exceedingly weak as to the identity of the defendant, a charge assuming that defendant was present when the whisky was obtained, etc., was on the weight of the evidence.
56 Tex. Crim. 129Francis v. State (1909)
The opinion states the case.
56 Tex. Crim. 130Lewis v. State (1909)
The opinion states the case.
56 Tex. Crim. 131Davis v. State (1909)
Recognizance—Appeal from Justice to County Court. Where upon conviction of a misdemeanor in the justice court and an appeal therefrom to the county court, where the appeal was dismissed, and from said dismissal appellant prosecuted an appeal to the Court of Criminal Appeals and entered into a recognizance which did not comply with the statute and the precedents of this court, the same must be dismissed. Following Horton v. State, 43 Texas Crim. Rep., 600.
56 Tex. Crim. 132Baggerly v. State (1909)
The opinion states the case.
56 Tex. Crim. 134McIntosh v. State (1909)
The opinion states the case.
56 Tex. Crim. 140Scott v. State (1909)
The opinion states the case.
56 Tex. Crim. 141Cabrera v. State (1909)
The opinion states the case.
56 Tex. Crim. 188McAllister Walser v. State (1909)
1. —Theft—Separate Taking—Charge of Court—Misdemeanor. Where upon trial for theft the evidence showed that the defendants stole two bales of cotton from the same place at practically the same time, it was one offense and no charge of separate offenses and the question as to whether they were misdemeanors was necessary; however the court having submitted such a charge which was favorable to the defendants the defendants could not complain. 2. —Same—Other Offenses—Charge of Court. Where upon trial for theft there was evidence of other thefts, for the purpose of affecting the credibility of defendants as witnesses, and the court limited said testimony thereto, there was no error. 3. —Same—Argument of Counsel. Where upon trial for theft the argument of State’s counsel in the light of the record was not necessarily ground for reversal, and there was no instruction requested withdrawing same from the jury, there was no error. 4. —Same—Bill of Exceptions. Where upon an appeal from a conviction of theft there was no bill of exceptions reserved to the matters alleged as error the same could not be considered.
56 Tex. Crim. 191Green v. State (1909)
The opinion states the case.
56 Tex. Crim. 195Washington v. State (1909)
Tried below before the Hon. F. L. Hawkins. Appeal from a conviction of murder in the second degree; penalty, twenty-one years confinement in the penitentiary.
56 Tex. Crim. 195Washington v. State (1909)
56 Tex. Crim. 198Windon v. State (1909)
Appeal from the District Court of Jefferson. Tried below before the Hon. W. H. Pope. Appeal from a conviction of perjury; penalty, seven years confinement in the penitentiary.
56 Tex. Crim. 199Adams v. State (1909)
The opinion states the case.
56 Tex. Crim. 200Burch, Jr. v. State (1909)
The opinion states the case.
56 Tex. Crim. 202Gill v. State (1909)
The opinion states the case.
56 Tex. Crim. 205Marshall v. State (1909)
The opinion states the case.
56 Tex. Crim. 206Dupree v. State (1909)
1. —Burglary—Withdrawal of Announcement of Ready for Trial—Continuance—Discretion of Court. Where upon trial for burglary, after the State rested its case and the defendant had introduced some of his testimony, he asked for a withdrawal of his announcement of ready for trial, and a continuance or postponement on account of surprise at the testimony of the chief State’s witness, on the ground of a conflict of said testimony with that given by said witness in his examining trial testimony, with reference to the time of the alleged offense, and it appeared from the record that this conflict was an evident error which could not have misled the defendant, and which he could easily have corrected by the testimony of the witnesses present, there was no error in the exercise of the trial court’s discretion in overruling the application. 2. —Same—Charge of Court—Night-time' Burglary—Force—Entry. Where the offense was a night-time burglary and there was no occasion for the court to define the terms force or entry, there was no error. 3. —Same—Sufficiency of the Evidence—Identification. Where upon trial for burglary the defendant was sufficiently identified, and the evidence being otherwise sufficient, the conviction will not be disturbed.
56 Tex. Crim. 209Ex Parte McCarty (1909)
1. —Extradition—Fugitive from Justice—Jurisdiction—Change of Government. A mere change of form of government from territorial to State would not so alter the rights of the State or of the relator, that an offense committed under the territorial laws would not be subject to extradition if the indictment was not returned until after the territory became a State; there being no evidence that the offense for which relator is indicted had been abrogated under the new form of government in said change. 2. —Same—Territorial Government—Form of Government. The mere transition of the form of government from territorial to State would not itself abolish the crime imputable to relator, if the act committed constituted a crime under the territorial law.
56 Tex. Crim. 211Crawford v. State (1909)
1. —Murder—Charge of Court—Murder in the First Degree. Where upon trial for murder the evidence showed an unprovoked murder, the court correctly charged on murder in the first degree. 2. —Same—Charge of Court—Deadly Weapon. Where upon trial for murder the evidence showed that the defendant had habitually carried a very large knife with a long blade, there was no harmful error in the court’s charge that this circumstance did not necessarily show an unlawful purpose on defendant’s part. 3. —Same—Continuance—Bill of Exceptions. Where the action of the court in overruling an application for continuance is not reserved by bill of exceptions, it cannot be considered on appeal. 4. —Same—Charge of Court—Self-Defense. Where upon trial for murder the charge of the court on self-defense was applicable to the facts in the case, although technically inaccurate, there was no error.
56 Tex. Crim. 213Churchill v. State (1909)
Burglary—Bill of' Exceptions—Practice on Appeal. Where the bill of exceptions does not state or set out the ground of objection to the evidence complained of, the same could not be considered on appeal; besides the appellant having received the minimum punishment could not have been prejudiced, the evidence otherwise sustaining the conviction.
56 Tex. Crim. 214Duque v. State (1909)
The opinion states the case.
56 Tex. Crim. 217Hubbard v. State (1909)
Obstructing Public Road—Charge of Court—Insufficiency of the Evidence. Upon trial for wilfully obstructing a public road where the evidence showed that there was no wilful obstruction of the road in question, the conviction could not be sustained.
56 Tex. Crim. 220Phillips v. State (1909)
The opinion states the case.
56 Tex. Crim. 220Veal v. State (1909)
The opinion states the case.
56 Tex. Crim. 222Myers v. State (1909)
The opinion states the case.
56 Tex. Crim. 225Williams v. State (1909)
The opinion states the case.
56 Tex. Crim. 226Bailey v. State (1909)
Local Option—Jury and Jury Law—Challenge to the Array. Where upon trial of a violation of the local option law, it appeared from the record that there were different prosecutions against different parties for different offenses, a motion to quash and set aside the jury panel because the jurors sat in another local option case, etc., was correctly overruled.
56 Tex. Crim. 228Nelson v. State (1909)
Disturbing Public Peace—Appeal Bond—County Court. Where upon appeal from the justice to the county. court the appeal was dismissed for want of a sufficient appeal bond, and thereupon appellant tendered a sufficient appeal bond under the Act of the Twenty-ninth Legislature p. 224, the court erred in refusing to accept same and in dismissing the appeal. Following Moore v. State, 49 Texas Crim. Rep., 43, and other cases.
56 Tex. Crim. 229Reno v. State (1909)
1. —Local Option—Identification. Where upon trial of a violation of the local option law, the prosecuting witness was not positive as to the identity of the defendant, but the sheriff testified that the defendant was the man whom the prosecuting witness pointed out as the man from whom he bought the whisky, and there was no further evidence on this point, the verdict will not be disturbed. 2. —Same—Evidence—Bill of Exceptions—Identity. Where upon trial of a violation of the local option law, the prosecuting witness was not positive as to the identity of the defendant, there was no error in permitting the officer to testify that defendant was the man whom prosecuting witness pointed out as the one who sold him the whisky; besides there was no specific objection in the bill of exceptions. 3. —Same—Charge of Court—Practice. Upon trial for a violation of the local option law, where the jury after the case was submitted communicated with the court upon the court’s ruling on certain testimony, to which the court responded in a wholly unobjectionable manner there was no error. 4. —Same—Motion for New Trial—Amended Motion—Motion in Arrest of Judgment. Where defendant was convicted of a violation of the local option law and on the same day filed a motion for new trial alleging that the conviction was contrary to the law and the evidence; and twelve days thereafter filed an amended motion for new trial, embracing a motion in arrest of judgment attacking the validity of the information, the same was correctly stricken out on motion of the State, as being filed too late.
56 Tex. Crim. 231Puryear v. State (1909)
1. —Murder—Charge of Court—Murder in the Second Degree. Upon trial of murder there was no error in the court’s charge on murder in the second degree to the effect that if defendant killed the deceased in a sudden transport of passion aroused without adequate cause, etc., they should convict defendant of murder in the second degree. Following Waters v. State, 54 Texas Crim. Rep., 322. Overruling Clark v. State, 51 Texas Crim. Rep., 519; Kannmacher v. State, 51 Texas Crim. Rep., 118. 2. —Same—Charge of Court—Murder in the Second Degree. Where upon trial for murder the objections to the court’s charge, with reference to implied malice and unlawful killing as applied to the evidence on the issue of murder in the second degree, when considered in the light of the entire charge were untenable, there was no error, and the mere omission in a particular paragraph of the charge to require the killing to he unlawful or upon implied malice would not be reversible error. Following Brittain v. State, 36 Texas Crim. Rep., 406, and other cases. 3. —Same—Charge of Court—Accomplice. Where upon trial for murder the evidence showed such relation of the witness and the defendant to the facts preceding the killing and leading up to the homicide as might have well justified the jury in believing that he was aiding and encouraging defendant in the assault upon deceased, and on cross-examination by the State certain statements were attributed to the witness which placed him in the light of an accomplice, the court correctly charged on accomplice testimony, in The meantime instructing the jury that the question of corroboration had no application to testimony of an- accomplice which is exculpatory, and that the jury were under no duty to require the corroboration of such exculpatory testimony and could allow full effect to the same. 4. —Same—Charge of Court—Provoking Difficulty. Where upon trial for murder the defendant, according to his own testimony, left the deceased after the first altercation, returned armed and applied to the deceased opprobrious epithets, etc., the court correctly charged on provoking the difficulty. 5. —Same—Charge of Court—Bight of Going Armed—Explanation. Where upon trial for murder the evidence showed that the defendant returned to the scene of the first difficulty armed with a pistol to call the deceased a son-of-a-bitch, etc., there was no error in the court’s failure to charge the jury upon defendant’s right to arm himself and seek a retraction of a similar insult offered by the deceased. 6. —Same—Charge of Court—Limiting Testimony. Where upon trial for murder the bill of exceptions upon appeal did not show the nature or character of the testimony with reference to the question of impeachment, which it is claimed the court should have limited in his charge, the same cannot be considered on appeal; besides the record showed that there was no impeaching testimony whatever introduced by the State except that which referred to the general reputation of defendant’s accomplice witness and which was admitted without objection. 7. —Same—Evidence—Bes Gestae—Dying Declarations. Where upon trial for murder testimony was admitted that deceased, almost immediately after the fatal shots were fired, stated that defendant had shot him, etc., the same was res gestae and dying declarations, and there was no error. 8. —Same—Self-Defense—Provoking Difficulty—Charge of Court. See opinion for charges of court on self-defense and provoking the difficulty which were properly separated and well applied to the facts of the case, and there was no error.
56 Tex. Crim. 242Reno v. State (1909)
1. —Local Option—Practice in County Court,. Where no injustice is shown, and the case was reached on regular call, an objection that the case was tried out of its regular order was not well taken. 2. —Same—Charge of Court—Date of Offense. Where upon trial of a violation of the local option law the record showed that the date of the offense appearing in one part of the court’s charge was clearly a clerical error, and that the charge read as a whole stated the date correctly there was no error. 3.—Same—Charge of Court—Accomplice. Where upon trial of a violation of the local option law the defendant’s testimony suggested that the prosecuting witness sold the whisky in question, there was no error in the court’s failure to charge that said witness was an accomplice as in this event the prosecuting witness would not be an accomplice but an independent principal, regardless of defendant’s ” interest in the matter.
56 Tex. Crim. 244Monroe v. State (1909)
1. —local Option—Continuance—Right of Representation by Attorney. Where upon appeal from a conviction of a violation of the local option law, it appeared from the record that defendant’s attorney had telegraphed from a distance to another firm of lawyers that he was very sick, and requested them to take charge of the case and that he would return on the day of trial; that the case was postponed for two days and then tried by the attorneys who were asked to represent the defendant by the absent attorney; and it was not shown that there was any testimony which would have been secured by the presence of the absent attorney, or that defendant’s rights were injured by reason of said absence, there was no error. 2. —Same—Information—Bad Spelling. Upon trial of a violation of the local option law the motion to quash the information on the ground of bad suelling was correctly overruled. 3. —Same—Complaint. Where upon trial of a violation of the local option law the complaint upon which the information was based was according to precedent, there was no error.
56 Tex. Crim. 246Snell v. State (1909)
The opinion states the case.
56 Tex. Crim. 246Thomas v. State (1909)
Scire Facías—Notice of Appeal—Practice on Appeal. Where the record disclosed that notice of appeal was given to the Court of Civil Appeals instead of the Court of Criminal Appeals, the appeal must be dismissed.
56 Tex. Crim. 248Hightower v. State (1909)
56 Tex. Crim. 253Worsham v. State (1909)
The opinion states the case.
56 Tex. Crim. 261Mason v. State (1909)
The opinion states the case.
56 Tex. Crim. 262Banks v. State (1909)
1. —Theft—Insufficiency of the Evidence. Where upon trial for theft the evidence was insufficient to support the conviction, the same must be set aside. 2. —Same—Defendant as a Witness—Practice. Where the State introduces in evidence the statements of the accused party which exculpate him, and does not directly or indirectly disprove them, the accused is entitled to an acquittal. Following Pratt v. State, 53 Texas Crim. 281.
56 Tex. Crim. 265Shelton v. State (1909)
1. —Threatening Life of Human Being—Evidence—Motive—Declaration of Third Parties. Upon trial for seriously threatening to take the life of a human being there was no error in admitting testimony of a difficulty between third parties, one of whom used language derogatory to defendant’s wife, of which language defendant was informed and upon which information he acted in making said threats. n 2. —Same—Sufficiency of the Evidence. Where upon trial for seriously threatening to take the life of a human being the evidence supported the conviction, the same will not be disturbed.
56 Tex. Crim. 267Yeiral v. State (1909)
The opinion states the case.
56 Tex. Crim. 272Yale v. State (1909)
Tried below before the Hon. P. S. Hale. Appeal from a conviction of unlawfully shooting craps; penalty, a fine of $10. The substance of the State’s testimony was that the defendant and others had been seen shooting craps about the time alleged in the indictment. They played the game with two dice, and they bet money on the game. They would each put five cents into the pot, and one of them would throw the dice, and whoever won would take the money.
56 Tex. Crim. 274Mangold v. State (1909)
Theft—Jurisdiction—Practice on Appeal—Affidavit. Where the order of the court below failed to recite that the appellant gave notice of appeal to the Court of Criminal Appeals, the appeal will be dismissed for want of jurisdiction; and such judgment cannot be corrected nunc pro tunc by affidavit of the clerk on the ground that it is a clerical error.
56 Tex. Crim. 274Hubbard v. State (1909)
The opinion states the case.
56 Tex. Crim. 275Ross v. State (1909)
1. —local Option—Continuance—Want of Diligence. Where upon trial of a violation of the local option law the application for continuance did not show that the absent witness had not left the State and that there was any probability of his return, there was no error in overruling same. 2. —Same—Postponement. Upon trial of a violation of the local option law where it was not shown that any steps had been taken to procure the absent testimony there was no error in refusing postponement of the trial. 8.—Same—Jury and Jury law—Challenge to Array—Jury Commissioners. Where upon trial of a violation of the local option law it was not shown whether the jury who tried defendant was selected by the jury commissioners, it will be presumed that they were so elected and no challenge to the array is allowed; and it appearing that said jury had. tried another case and different offense, this would not disqualify them. 4.—Same—Evidence—Hearsay. Where upon trial of a violation of the local option law, the main point at issue was the character of the prosecuting witness, it was reversible error to admit in evidence a certain clearance card of a railroad company stating that the services of the prosecuting witness had been satisfactory and that he left of his own accord; this was clearly hearsay testimony.
56 Tex. Crim. 278Honea, Alias Watson v. State (1909)
The opinion states the case.
56 Tex. Crim. 280Sellman v. State (1909)
The opinion states the case.
56 Tex. Crim. 281Hartnett v. State (1909)
The opinion states the case.
56 Tex. Crim. 288Muhlhause v. State (1909)
Seduction—Charge of Court—Conditional Promise. Where upon trial for seduction the evidence suggested not only a conditional promise of marriage but one based upon lust, etc., and the court’s charge was very general in its terms, the court should have submitted special requested charges on this phase of the evidence.
56 Tex. Crim. 293Clark v. State (1909)
1. —Murder—Charge of Court—Murder in the Second Degree—Manslaughter. See opinion for charge of court on murder in the second degree, and manslaughter, held to be correct. 2. —Same—Charge of Court—Deadly Weapon—Presumption of Law. Where upon trial for murder the evidence showed that the deceased in his attack upon defendant used a pistol as a firearm, the court should have charged article 676 Penal Code, in respect to the use of a deadly weapon. 3. —Same—Charge of Court—Self-Defense. Where upon trial for murder the evidence showed that quite a number of shots were fired by defendant and deceased, and that they emptied their six-shooters at each other, and continued to shoot as long as they could, the court should have charged that defendant had the right to shoot the deceased as long as it reasonably appeared from his standpoint that his life was in danger, or that he was in danger of serious bodily injury. 4. —Same—Charge of Court—Self-Defense. Where upon trial for murder the court on the general issue of self-defense submitted a proper charge, there was no error. 5. —Same—Evidence—Res Gestae—Shorthand Facts. Where upon trial for murder it was shown by a witness that about five minutes after the shooting, some forty yards from the scene of the homicide appellant was seen bleeding, excited and leaning on another, etc., and that he handed his pistol to a policeman calling on him to protect him, etc., it was error to exclude the statement of the defendant made at that time that he killed the deceased in self-defense. This was a shorthand rendering of the facts and res gestae. Overruling Bateson v. State, 46 Texas Crim. Rep., 34. 6. —Same—Evidence—Declaration of Deceased—Undisclosed Motives of Deceased. Upon trial for murder it was reversible error to admit in evidence the declaration of deceased, when he was starting in the direction of defendant, made out of the presence and hearing of defendant, to the effect that he was going to arrest him; and this although the court admitted same because said remark was made at the time deceased drew his pistol, and also that the matter of drawing the pistol was brought out by the defendant. Following Wooley v. State, 3 Texas Ct. Rep., 236, and other cases.
56 Tex. Crim. 300Moore v. State (1909)
The opinion states the case.
56 Tex. Crim. 302Snell v. State (1909)
The opinion states the case.
56 Tex. Crim. 305Carter v. State (1909)
1. —Arson—Continuance—Bill of Exceptions—Signature of Judge Necessary. Where upon appeal from a conviction of arson the bill of exceptions reserved to the refusal of a motion for continuance was not signed by the trial judge, the same could not be considered. 2. —Same—Evidence—Harmless Error. Where upon trial for arson testimony was admitted by the State that defendant after the fire while walking down the road, seemed to be excited and was looking back like looking for someone, and it was previously shown that he was looking for someone, the error if any was harmless. 3. —Same—Absence of Defendant. Where defendant in his motion for new trial complained that the jury were empaneled during defendant’s absence, but the court in explaining the bill of exceptions did not certify to this, but stated that the indictment had been read in defendant’s absence, and as soon as the court was aware of this he had the State’s counsel to reread the indictment in defendant’s presence; and the bill being thus accepted by the defendant, there was no error. 4.—Same—Charge of Court—Alibi. Where upon trial for arson the form of the court’s charge on alibi was according to precedent, there was no error. Following Gallaher v. State, 28 Texas Crim. Rep., 247.
56 Tex. Crim. 307Leonard v. State (1909)
1.—Theft—Conversion—Evidence—Allusion to Former Conviction—Flight. Upon trial for theft where the State introduced testimony with reference to defendant’s escape pending said charge, and during said testimony the State’s witness remarked that he was holding defendant because he had been convicted (which seemed to have been a casual or inadvertent remark), and the court instructed the jury to disregard this remark of the witness, there was no error. 2.—Same—Charge of Court—Bailment—Robbery. Where upon trial for theft by conversion, the evidence showed that the defendant arrested the party injured and placed him in jail for drunkenness; that he there searched him and took from him among other tilings one hundred and fifty five dollars in United States Currency, which he failed to return or account for; that defendant was acting as a deputy constable at the time, and that it was the universal custom upon arresting prisoners and placing them in jail to search them and take from them valuable things that they might have about their person, the court correctly charged the statute of conversion under bailment, and correctly refused a requested charge on the law of robbery.
56 Tex. Crim. 316Smith v. State (1909)
1. —Rape—Conduct of Prosecuting Attorney—Practice. The court should promptly suppress any conduct of attorneys in the case, which is disorderly in the trial of a criminal cause. 2. —Same—Reading Law to Jury—Discretion of Court. Reading law in the trial of criminal cases is a matter largely in the discretion of the trial judge, and there was no error in the court’s refusal to permit counsel for the defendant to read a lengthy statement of facts from a case in the reports. 3. —Same—Evidence—Credibility of Witness. Where upon trial for rape, testimony of the defense to show that some of the relations of the prosecutrix had been guilty of seduction in years gone by, and which was rather remote in time, was excluded, there was no reversible error. 4. —Same—Charge of Court—Consent—Letters—Force. Where upon trial for rape, certain letters and postal cards written by the prosecutrix were in evidence, which were more or less lascivious, and .there was also testimony showing consent of the prosecutrix, the court erred in informing the jury that they might use the evidence of the letters and postal cards to show consent, and yet withdrew from them the right to consider this evidence as it bore upon the issue of force. 5. —Same—Force—Want of Consent—Feigned Resistance. A feigned resistance of the prosecutrix would not constitute rape; if there was consent, then the force used by the assailant would make no difference. There must be a combination of force and want of consent, in order to constitute rape where force is the ground alleged. Following Mooney v. State, 29 Texas Crim. App., 257.
56 Tex. Crim. 324Akin v. State (1909)
The opinion states the case.
56 Tex. Crim. 329Basquez v. State (1909)
The opinion states the case.
56 Tex. Crim. 331Bumbaugh v. State (1909)
Tried below before the Hon. J. W. Hassell. Appeal from a conviction of unlawfully keeping a disorderly house where intoxicating liquors were sold; penalty, a fine of $200 and twenty days confinement in the county jail. The opinion states the case.
56 Tex. Crim. 333Joyce v. State (1909)
The opinion states the case.
56 Tex. Crim. 337Ex Parte Thulemeyer (1909)
The opinion states the case.
56 Tex. Crim. 339Simons v. State (1909)
1. —Gaming—Private Residence—Public Place—Gambling House. Where upon trial, under article 389 Renal Code, of unlawfully permitting a house to be used for gaming, etc., the evidence showed all the indicia and all the evils of a gambling establishment; the profit of the keeper, the equipment of the house and the usual allurements, together with habitual playing of cards, the conviction is sustained, notwithstanding the house was defendant’s private residence. 2. —Same—Repeal by Implication. Repeals by implication are not favored; and the Act of the Thirtieth Legislature p. 107, does not in terms or by implication repeal article 389 Penal Code. 3. —Same—Argument of Counsel—Bate cf Offense. Where upon trial for gaming it was not manifest that the State’s counsel alluded to the death of the county attorney of Tarrant County to inflame the minds of the jury, but that he did so to fix the date of the offense, there was no error. 4. —Same—Allusion to Defendant’s Failure to Testify. Where upon trial for gaming the reference to defendant’s failure to testify was of the most casual nature and was not of such gravity as to require reversal, there was no error. [Rehearing denied June 9, 1909.—Reporter.]
56 Tex. Crim. 343Renow v. State (1909)
1. —Murder—Charge of Court—Statutes Construed—Deadly Weapon. Where upon trial for murder the evidence showed that the instrument used by the deceased in attacking the defendant was not as a matter of law a deadly weapon, and did not show such manner of its use which would justify the court in assuming that it was used or intended to be used as such, there was no error in the court’s failure and refusal to give in charge to the jury the substance of article 571 (now 676) of the Penal Code. Davidson, Presiding Judge, dissenting. 2. —Same—Self-Defense—Charge of Court. Where upon trial for murder the evidence showed that the deceased and his brother followed defendant some considerable distance, the brother having a stick about two and one-half to three feet long and about one inch in diameter, with which he struck defendant a blow but which was not serious, and the court submitted the law of self-defense, the defendant’s rights were properly safeguarded; and the court was not required to submit article 676 supra which was not applicable to the facts, as the weapon used was not manifestly a deadly weapon. 3. —Same—Rule Stated—Regal Presumption. The rule is that in any and every case where it is manifest from the evidence that an attack was being made by the deceased upon the defendant with a deadly weapon, that it is to be presumed under article 676 Penal Code that the person so using it designed to inflict the injury, and the court should so charge, but such legal presumption should not be given in charge where the evidence tended to show an attack of a milder character. Following Orman v. State, 24 Texas Crim. App., 495. 4. —Same—Charge of Court—Manslaughter. Where upon trial for murder the evidence showed that there were diffeerent altercations between the parties just preceding the homicide, some of which did not amount as a matter of law to adequate cause, and the court gave the general statutory definition of manslaughter, and in addition that an assault and battery causing pain and bloodshed was adequate cause, and that the jury in determining the sufficiency of the provocation or adequate cause could look to all the facts and circumstances in evidence at the time of or prior to the killing, but that the sudden passion must arise at the time of the killing, there was no error. « 5. —Same—Sufficiency of the Evidence—Murder in the Second Degree—Manslaughter. Where upon trial for murder the evidence was such that the jury could have found either manslaughter or murder in the second degree, and the court submitted the law of both these grades of homicide and self-defense, a conviction for murder in the second degree will not be disturbed. [Rehearing overruled June 9, 1909.—Reporter.]
56 Tex. Crim. 353Wright v. State (1909)
The opinion states the case.
56 Tex. Crim. 360Anderson v. State (1909)
1. —Perjury—Indictment. See opinion for indictment for perjury, as to materiality and falsity of defendant’s statements under oath, held to be sufficient. 2. —Same—Charge of Court—Number of Witnesses in Perjury—Credible Witness. Where upon trial for perjury the court charged the jury that no person could be convicted of perjury except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of defendant’s statement under oath, and that a credible witness is one who being competent to give evidence is worthy of belief, and that unless they found that the prosecuting witness was a credible witness they must disregard the whole of his testimony; that the jury are the judges as to whether witness is worthy of belief, the same was sufficient, and there was no error in refusing defendant’s special instruction that the witness’s character must be above reproach. 3. —Same—Charge of Court—Presumption. Upon trial for perjury there was no error in refusing defendant’s special charge that the law presumed the testimony of the defendant set out in the indictment to be true and of equal value of any other one witness. The law attaches no presumption of credibility or truthfulness to the allegations in a perjury indictment. 4. —Same—Severance—Principal—Accomplice—Accessory. In order to entitle a defendant to a severance, he must be indicted separately or jointly with another for the same offense, or for a matter growing out of the same transaction; and the evidence must show that he could be tried and convicted as principal, accomplice or accessory for the offense for which he is tried; and the appellate court will not look to the statement of facts in passing on this question. 5. —Same—Case Stated-—Same Transaction. Where two persons are indicted in separate indictments for perjury and the assignment of a perjury against each is identical or nearly so, they cannot claim a severance, as perjury is an offense for which two persons cannot be jointly indicted in the absence of a conspiracy each with the other to commit perjury. Bach defendant is charged with a separate and distinct offense, although the perjury assigned mav relate to the same transaction; such a state of case is not within the purview of article 807 Code Criminal Procedure, which provides that where persons stand indicted of an offense growing out of the same transaction they are entitled to a severance. 6. —Same—Evidence—Rill of Exceptions—Harmless Error. Where upon trial for perjury the State was permitted to introduce the testimony of defendant made ip an innuest" proceedin, and the bill of exceptions in the record on anneal did not state that the inauest inquiry was about a matter different from that upon which the prosecution in the case on trial was predicated, there was no error; besides the testimony could not have injured defendant’s rights. 7.—Same—Credible Witness—Proof Required in Perjury. Upon trial for perjury, the definition that a credible witness is one, who being competent to give evidence, is worthy of belief is generally sufficient, unless the State’s witnesses have been impeached as to their general reputation for truth and veracity; in such case the charge of the court as to said State’s witness credibility should instruct the jury that his character for truth must be above reproach, not that his character is above reproach, as there is a vast difference between a witness’ character and his reputation for truth.
56 Tex. Crim. 372Barr v. State (1909)
The opinion states the case.
56 Tex. Crim. 375Ex Parte Smythe (1909)
1. —Wife and Child Abandonment—Constitutional law. The Act of the Thirtieth Legislature, p. 133, providing a penalty for the abandonment of wife or children is unconstitutional and invalid. Ramsey, Judge, dissenting. 2. —Same—Appropriation—Public Funds, The Act of the Thirtieth Legislature, p. 133, which provides that the fine imposed must be paid to the party injured, is a direct appropriation of public funds for private or individual purposes, and contravenes section 6 article 16 of the State Constitution, which inhibits an appropriation for private or individual purposes. Ramsey, Judge, dissenting. 3. —Same—Suspension of law. The Act of the Thirtieth Legislature, p. 133, which authorizes a county judge to suspend the law, in that he may suspend the punishment, contravenes section 28 article 1 of the State Constitution, which inhibits the suspension of any law except by the Legislature. ' 4. —Same—Trial by Jury. The Act of the Thirtieth Legislature, p. 133, is unconstitutional in that it deprives the defendant of the right of trial by jury. 5. —Same—Bond—Jurisdiction—Basis of Prosecution. The bond required by said act is not within the jurisdiction of the county court. Besides the basis for the prosecution is not clearly laid down.
56 Tex. Crim. 385Collins v. State (1908)
1. —Theft as Bailee—Information. See opinion for information for theft as bailee held to be sufficient. 2. —Same—Value of Property. Where upon trial for theft as bailee, the value of the alleged stolen property was established by circumstantial evidence, the conviction is sustained. Appeal from the County Court of Bowie. Tried below before the ' Hon. Sam H. Smelser.
56 Tex. Crim. 387Dupree v. State (1909)
1. —Local Option—Former Conviction—Statement of Facts. Where upon trial for a violation of the local option law the defendant interposed a plea of former conviction, but failed to support the same by the proper evidence; and besides the statement of facts not having been signed by counsel or approved by the court, the same could not be considered on appeal. 2. —Same—Appeal Pending. A plea of former conviction can not be successfully interposed where the judgment plead in bar is suspended by an appeal pending. 3. —Same—Evidence—Clubroom. Upon trial of a violation of the local option law there was no error in excluding testimony that the prosecuting witness was interested financially or otherwise, or assisted in managing or running a club where intoxicating liquors were drank.
56 Tex. Crim. 389Brown v. State (1909)
The opinion states the case.
56 Tex. Crim. 393Fruger v. State (1909)
1. —Theft—Charge of Court—Accomplice. Upon trial for theft where the court in charging upon accomplice testimony instructed the jury that they must first believe that such testimony was true and tended to connect the defendant with the offense charged, etc., the same was reversible error. Following Fruger v. State, 50 Texas Crim. Rep., 621, and other cases. 2. —Same—Evidence—Cross-Examination. Where upon trial for theft the defendant in his cross-examination of a State’s witness elicited testimony to the effect that State’s counsel had promised the witness immunity from punishment if he would implicate other parties, there was no error in permitting State’s counsel on re-examination to show that the witness in this connection should not implicate any innocent party. 3. —Same—Charge of Court—Alibi—Ownership. Where upon trial for theft the court correctly charged on the question of alibi and the ownership of the alleged stolen property, there was no error. 4, —Same—Sufficiency of the Evidence. See opinion where the Court of Criminal Appeals would not reverse the case on the ground of insufficiency of the evidence.
56 Tex. Crim. 393Moody v. State (1909)
Aggravated Assault—Information—Complaint—Variance. Where in a prosecution for aggravated assault, the information in describing the offense used the name of Ed Moody and the complaint that of John Moody, there was a fatal variance.
56 Tex. Crim. 396Derden v. State (1909)
The requested charge by the defendant on the subject of the second difficulty was as follows: “You are instructed that testimony of the trouble that occurred in the drugstore after the shooting was only permitted for the purpose of showing the minds of the parties at the time of the original difficulty; if you believe from the testimony that the defendant believed that the deceased, Mitcham, when he entered the building and caught hold of a chair intended to renew the…
56 Tex. Crim. 408Salmon v. State (1909)
1. —Cotton Futures—Charge of Court—Weight of Evidence. Where upon trial of. unlawfully dealing in cotton futures, the nurchaser testified that he did not expect an actual delivery, but bought for speculation, and the defendant testified that the sale contemplated actual delivery of the cotton, the court erred in charging the jury that the guilt of the defendant depended upon the understanding and construction of the contract placed upon it by the purchaser. 2. —Same—Contract Outside of the State. Under article 377, Penal Code, it is required that the accused must conduct or carry on a business where future contracts are bought and sold in this State; and where the evidence showed that a defendant received offers for the sale and purchase of cotton, and conveyed these offers to parties outside of the State of Texas where they were accepted and the sale or purchase was made there, he was not guilty of any violation of the law; and where the evidence presented this issue the court should have submitted a requested instruction thereon. Following Scales v. State, 46 Texas Crim. Rep., 296. 3.—Same. See opinion for remarks that the Act of the Thirtieth Legislature may be broad enough to make the transaction an offense.
56 Tex. Crim. 411Grant v. State (1909)
1. —Murder—Evidence—Declarations of Defendant—Arrest. Where upon trial for . murder it was manifest that there was at the time of defendant’s statement to the officer no actual exercise of authority or control by the officer over the defendant, and defendant’s statement conveyed the idea that he thought the offense was of a trivial nature, and there was no cause for immediate arrest; that the same was voluntarily and freely made; and the bill of exceptions did not show when in fact the arrest' was made, there was no error in admitting the said statement in evidence. 2. —Same—Evidence—Cross-Examination. Where upon trial for murder there was testimony that the deceased had thrown a box of axle grease at the defendant, there was no error to permit the State to introduce testimony as to the condition and consistency of the axle grease at the time of the homicide, to show that if the same had been thrown at defendant with sufficient force to knock him off his horse that the contents of the box would have been disarranged. 3. —Same—Charge of Court—Words and Phrases. Where upon trial for murder the evidence showed that the defendant hit and stamped the deceased, there was no error that the court used in his charge the words stamping, kicking and beating the deceased. 4. —Same—Charge of. Court—Instrument and Means Used—Intent. Where upon trial for murder the court in his charge, in submitting article 717, Penal Code, used the words, “and the surrounding circumstances at the time,” the same was reversible error, as this language was not contained in substance or effect in said statute, and went beyond the same; especially where the defendant requested an additional correct instruction, applicable to the facts, as to the means used and intent of the defendant in committing the homicide. 5. —Same—Charge of Court—Burden of Proof—Aggravated Assault. See opinion for court’s criticism on a charge of aggravated assault which was inaptly drawn, and rather tended to place the burden of not guilty on the defendant. 6. —Same—Charge of Court—Simple Assault. . Where upon trial for murder, resulting in a conviction of manslaughter, the evidence showed that the assault resulted fatally, etc., there was no error in the court’s failure to charge on simple assault.
56 Tex. Crim. 418Goode v. State (1909)
1. —Theft of Cattle—Charge of Court—Circumstantial Evidence—Mistake of Pacts. Where upon trial for theft of cattle the evidence raised the question of mistake, and made a case of circumstantial evidence, the court’s failure to charge on circumstantial evidence was reversible error, 2. —Same—Charge of Court—Principals. Where upon trial for theft of cattle the evidence involved a mistake of facts, and that the defendant was not present at the time of the taking, or rather that the branding, which constituted the taking, was done by. an agent of the defendant, the court’s failure to charge on the law of principals was reversible error.
56 Tex. Crim. 420Murray v. State (1909)
1. —Local Option—Intoxicating Liquors—Charge of Court. Where upon trial for a violation of the local option law the court charged that if the beverage in question contained sufficient alcohol to produce intoxication when drunk in reasonable quantities such as the human stomach will ordinarily hold, that it was an intoxicant, there was no error. 2. —Same—Evidence—Hearsay. Upon trial for violation of the local option law, it was reversible error to permit a witness to testify that he heard that certain parties had called upon defendant and requested him to close up his business of selling frosty. 3. —Same—Intoxicant—Charge of Court. Upon trial for violation of the local option law, the court erred in instructing the jury that if the alleged liquor produced any degree of intoxication, or contained the elements of an intoxicant in quantities sufficient to produce intoxication to find the defendant guilty. This was not a correct definition of an intoxicant. 4. —Same—Charge of Court—Weight of Evidence. Where upon trial of a violation of the local option law the court assumed in his charge that the defendant had sold a drink and that the same was intoxicating, the same was error.
56 Tex. Crim. 422Stapleton v. State (1909)
The opinion states the case.
56 Tex. Crim. 426Evans v. State (1909)
The opinion states the case.
56 Tex. Crim. 428Alexander v. State (1909)
Local Option—Affidavit—Information. See opinion for affidavit held to be sufficient to charge a violation of the local option law, although inartistically drawn.
56 Tex. Crim. 429Kirk v. State (1909)
The opinion states the case.
56 Tex. Crim. 431Minor v. State (1909)
The opinion states the case.
56 Tex. Crim. 435Forcy, Alias Jones v. State (1909)
Passing Forged Instrument—Indictment. Where upon trial for passing a forged instrument the indictment, according to precedent, was fatally defective, the prosecution will be dismissed.
56 Tex. Crim. 435Romero v. State (1909)
The opinion states the case.
56 Tex. Crim. 438Murray v. State (1909)
The opinion states the case.
56 Tex. Crim. 440Holland v. State (1909)
The opinion states the case.
56 Tex. Crim. 444Monroe v. State (1909)
The opinion states the case.
56 Tex. Crim. 447Cordono v. State (1909)
The opinion states the case.
56 Tex. Crim. 460Gelber v. State (1909)
The opinion states the case.
56 Tex. Crim. 465Ex Parte A. Abrams (1908)
From Bowie County. Original proceedings in habeas corpus asking release from arrest under a warrant issued by the corporation court of the city of Texarkana charging relator with unlawfully pursuing the occupation of a retail liquor dealer in said city. The opinion states the case.
56 Tex. Crim. 480Crowell v. State (1909)
1, Murder—Evidence—Silence of Defendant—Declarations of Third Party. Upon trial for murder it was reversible error to admit in evidence the defendant’s silence touching declarations made in his presence by a third party, to the effect that a horrible murder had been committed. Following Hanna v. State, 46 Texas Crim. Rep., 5, and other cases. 2. —Same—Evidence—Declarations of Third Party. Upon trial for murder it was reversible error to admit in evidence the defendant’s silence upon the declarations of a witness to the effect if defendant was aware of the fact that the people thought his wife was murdered. 3. —Same—Evidence—Expert Opinion. Upon trial for murder there was no' error to permit the State’s witness to state, after showing that he was familiar with the existing conditions, whether it would have been possible for the body of a person weighing 135 pounds to have rolled against the stairway door without knocking it open. 4. —Same—Evidence—Shorthand Rendering of Facts. Upon trial for murder there was no error to admit testimony that when defendant came into the house where his dead wife lay, that there were no manifestations of sorrow or grief on his part. 5. —Same—Evidence—Declarations by Defendant. Upon trial for murder there was no.error in admitting the declarations of the defendant, in conversation with a third party about the nonattendance of his children at school, that he did not have time to attend to this school work, etc., and as for his place there had to be a decided change take place; this implied a dissatisfaction with defendant’s home life, etc., and implied ill-will towards his wife whom he was alleged to have murdered; although such statement was very general it could not have injured appellant. 6. —Same—Evidence—Intoxication. Upon trial for murder there was no error in admitting in evidence testimony that the defendant was under the influence of whisky on the morning of the day of the homicide, and that his eyes and face showed it. 7. —Same—Evidence—Argument of Counsel. Upon trial for murder there was no error in State’s counsels argument concerning the failure of defendant’s brother to testify to his disclosures of the condition of the stairway before the grand jury. 8. —Same—Charge of Court—Murder in the Second Degree. Upon trial for murder where the evidence showed that defendant was at home on the day of the death of his wife; that he spoke to her and she to him; and in face of all the facts and circumstances, the court did not err in charging on murder in the second degree. 9. —Same—Charge of Court—Alibi—Charge on Weight of Evidence. Where upon trial for murder the defendant pleaded alibi, and the court charged among other things that if defendant was at said time at another and different place from that at which said offense had been committed they should find him not guilty, the same was not on the weight of the testimony when considered with other parts of the charge where the court instructed the jury “if an offense was committed,” etc. 10. —Same—Charge of Court. Upon trial for murder the charge of the court directing an acquittal of defendant, in the event that the deceased was not dead, could not have injured the defendant in any way; the death of the deceased being unquestionable. 11. —Same—Misconduct of Jury—Comparisons. Upon trial for murder there was no error that the jury while discussing and deliberating upon their verdict went out and looked at the stairway of the courthouse; there being evidence in the case that the deceased was killed accidentally by a fall from the stairway in her home. 12. —Same—Sufficiency of the Evidence. Where upon trial for murder the evidence against the accused was not so inconclusive as would justify, the court to set aside the conviction, the same was sustained.
56 Tex. Crim. 492Early v. State (1909)
The opinion states the case.
56 Tex. Crim. 494Clark v. State (1909)
The opinion states the case.
56 Tex. Crim. 496Williams v. State (1909)
1. —local Option—Identification—Sufficiency of the Evidence. Upon trial of a violation of the local option law where the evidence showed a sale of the whisky, and the issue was narrowed down to one of identification of defendant, which was shown by circumstantial evidence, the conviction will not be disturbed. 2. —Same—Evidence—Conclusion of Witness—Harmless Error. Upon trial of a violation of the local option law there was no reversible error to admit testimony of a conversation between defendant and another with reference to the proprietorship of the place where the whisky was sold, although the same conveyed the conclusions of the witness at the same time. 3. —Same—Evidence—Other Transactions. . Upon trial of a violation of the local option law where the evidence did not positively identify the defendant as the person who sold the whisky, there was no error in admitting testimony of previous and other sales of whisky by the defendant.
56 Tex. Crim. 498Looper v. State (1909)
The opinion states the case.
56 Tex. Crim. 500Lyed v. State (1909)
Tried below before the Hon. L. B. Hightower. Appeal from a conviction of murder in the second degree; penalty, seven years imprisonment in the penitentiary.
56 Tex. Crim. 500Lynd v. State (1909)
56 Tex. Crim. 501Smith v. State (1909)
Local Option—Non-Intoxicant—Whisky—Charge of Court. In some cases it is necessary to instruct the jury as to what is an intoxicant, but this is not necessary where the article sold is whisky. Whisky is an intoxicant.
56 Tex. Crim. 502Duke v. State (1909)
The opinion states the case.
56 Tex. Crim. 504Ex Parte Julius Wright (1909)
From Travis County. Original application for writ of habeas corpus asking a release from a commitment under a conviction in the Corporation Court of the city of Austin, upon a complaint charging the relator with a violation of the Sunday law under article 199, Penal Code. The opinion states the case.
56 Tex. Crim. 508Neeley v. State (1909)
The opinion states the case.
56 Tex. Crim. 511Johnson v. State (1909)
Gaming—Variance—Complaint—Information. Where the complaint charged defendant with betting' at a game played with dice, etc., and the information charged that he played at the game with dice called craps, the variance was fatal.
56 Tex. Crim. 512Zinn v. State (1909)
The opinion states the case.
56 Tex. Crim. 513Brooks v. State (1909)
The opinion states the case.
56 Tex. Crim. 513Knudson v. State (1909)
The opinion states the case.
56 Tex. Crim. 515Clay v. State (1909)
The opinion states the case.
56 Tex. Crim. 516Kelley v. State (1909)
Theft—Possession—Ownership. Upon trial for theft where the possession and ownership of the alleged stolen property was alleged in one person and the proof showed that it was actually owned by another, there was no variance; the person alleged in the indictment having the actual care, control and management of said property.
56 Tex. Crim. 517Arbuthnot v. State (1909)
The opinion states the case.
56 Tex. Crim. 519Morrow v. State (1909)
1. —local Option—Detective—Jury law—Accomplice. Upon trial for a violation of the local option law there was no error in permitting State’s counsel, in examining the jurors on voir dire, to say to them that the law did not require the testimony of a detective to be corroborated, the court remarking at the same time that this was so but that he would not so charge the jury, and upon further objections by defendant’s counsel instructed the jury not to consider such statement of the counsel and the court. Article 407, Penal Code, provides that the purchaser of intoxicating liquors is not an accomplice. 2. —Same—Argument to Court by Counsel—Practice. Upon trial of a violation of the local option law, the argument of counsel on question of law on the admissibility of evidence before the court, could not be used as a ground for reversal because it was made in the presence of the jury, no injury to defendant’s right appearing. 3. —Same—Evidence—Cross-Examination—Credibility of Witness—Husband and Wife. Upon trial of a violation of the local option law, there was no error to permit State’s counsel on cross-examination of defendant’s wife to ask her whether she did not know that there were charges pending against the defendant on the very days she had sworn he was confined to his bed; the court limiting said testimony to the credibility of the witness. 4. —Same—Evidence—Books—Entries—Cross-Examination. Where upon trial of a violation of the local option law, the main State’s witness fixed the date of the offense from a memorandum book, and the defense on cross-examination demanded said book to show all entries therein, and the court ruled that the book could only be used as to the particular transaction at issue, which the defendant refused to do, there was no error to refuse the use of said book for the purpose of showing other entries, it not being shown that this was necessary. 5. —Same—Evidence—Books—Entries—Bona Pides. Upon trial of a violation of the local option law, there was no error in compelling a defense witness to produce his book on cross-examination by the State, for the purpose of showing all the entries as they might affect the bona tides of the entries introduced by the defendant; besides there was nothing shown to prejudice the rights of the defendant. 6. —Same—Evidence—Detective—Cross-Examination. Where upon trial of a violation of the local option law the defense had cross-examined the main State’s witness, who was a detective, suggesting false swearing, collusion, etc., there was no error in permitting the State’s counsel in re-examining the witness to show that the witness was simply employed to detect persons unlawfully selling liquor. 7. —Same—Charge of Court—Alibi. Where upon trial of a violation of the local option law the defense interposed an alibi, and the court correctly charged thereon, there was no error in the court’s refusal of a special charge on the same, subject. ’ 8. —Same—Sufficiency of the Evidence. Where upon trial of a violation of the local option law the evidence supported the conviction, the same will not be disturbed. [Rehearing denied June, 1909.—Reporter.]
56 Tex. Crim. 525Bluitt v. State (1909)
1. —Refusing to Work on Public Road—Constitutional law. The Act of 1897, special laws page 262, chapter 110, entitled an Act to create a more efficient road system for Ellis County and amendments thereto, is authorized under article 8, section 9 of the Constitution of Texas, as amended in 1890, authorizing the Legislature to pass local laws for the maintenance of public roads, etc. 2. —Same—Suspension of Law. Even if said Act provided for its suspension by the commissioners court, it could not be held invalid, as the law could be upheld and the suspension fail. 3. —Same—Equal and Uniform Taxation. Said Act, so far as affected by article 5048, Revised Civil Statutes, does not contravene article 8, section 1 of the Constitution, with reference to equal and uniform taxation; as the Legislature had the right to make the levy applicable to a class, where such classification was uniform and rested on a substantial basis and reason. Following Solon v. State, 54 Texas Crim. Rep., 261. Davidson, Presiding Judge, dissenting. 4. —Same—Civil Office of Emolument. Nor is said Act in question invalid or inhibited by section 40, article 16, of the State Constitution, and does not create another civil office of emolument; the commissioners themselves being charged by law with the duty of control over public roads. 5. —Same—Levy of Poll Tax—Delinquent—Practice on Appeal. Section 15, Special Laws of the Twenty-ninth Legislature, p. 262, makes any person in Ellis County subject to the payment of a poll tax (whether assessed or not) who shall fail to pay the same on a certain date a delinquent poll taxpayer, and the mere allegation that the conviction is not warranted by the evidence is too general to be considered on appeal. 6. —Same—Resident of City—Road—Duty—Judicial Knowledge. Upon trial of wilfully failing and refusing to work on the public road, etc., the court could not judicially know that the defendant resided in the corporate limits of a town regularly incorporated under the laws of this State. 7. —Same—Power of Commissioners Court—Incorporated Cities and Towns— Poll Tax. - Under article 8, section 9, Constitution, as amended in 1890, the Legislature is clothed with authority to pass local laws for the maintenance of public roads and highways, and to give control to the county commissioners court over citizens residing in incorporated cities and towns; and even if it were shown (which it is not) that defendant was summoned to work on a road situated in the corporate limits of a city, this would not be a defense for failure to pay county poll tax. Davidson, Presiding Judge, dissenting. 8. —Same—Cumulative Punishment. There is no constitutional restriction that interferes with the power of the Legislature to pass local county road laws and provide penalties for persons delinquent in paying poll tax or performing road service, and to make the punishment therefor cumulative. 9. —Same—Levy of Poll Tax—Proof Necessary. It can not be assumed that there had been a levy of a poll tax for the time in question in the absence of proof to that effect, or a clear agreement that such levy was made. 10. —Information—Persons Liable to Road Work—Limitation. In a prosecution of wilfully failing and refusing to work upon a public road, etc., it was necessary that the complaint and information allege that the defendant was liable for and defaulted in the payment of the road tax for a year and time within the period of limitation as provided under the laws of this State; and where the information failed to do so it was insufficient.
56 Tex. Crim. 533Ex Parte Morris (1909)
Prom Wichita County. Original habeas corpus proceedings asking release from a commitment by virtue of a warrant issued out of the Corporation Court, under the general incorporation act, Revised Civil Statutes, article 523 for putting up a building in violation of-the city ordinance.
56 Tex. Crim. 538Ex Parte Tom Cain (1909)
1. —City Charter and Ordinance—Eire Limits—Building—Police, Power. It is an inherent power in all cities, for the prohibition of and protection against conflagration, that a city council may establish fire limits as an appropriate exercise of its police power, and this includes not only the enactment of ordinances establishing fire limits, but prohibiting the use of inflammable material in building or repairs thereto. 2. —Same—Legislative Authority. Under Revised Statutes, article 523, the city council of a city incorporated under the general laws may prohibit the erection, building, placing, moving or repairing of wooden buildings within said city as they may designate and prescribe, and they are also authorized to prohibit the rebuilding or repairing of wooden buildings when same have been damaged 50 percent of the value thereof, and may prescribe the manner of ascertaining such damages. 3. —Same—Conflict Between State Laws and Ordinance. Where the general law prohibited the rebuilding or repairing of wooden buildings when same had been damaged 50 percent of the value thereof, and the city ordinance placed this limit at 20 percent, said conflict would not justify the court in holding that such fire ordinance was invalid on account of such conflict. To the extent of the conflict the ordinance would not be upheld. 4. —Same—Habeas Corpus—Complaint. The writ of habeas corpus is not available to test the sufficiency of a criminal complaint. Following Ex Parte Cox, 53 Texas Crim. Rep., 240.
56 Tex. Crim. 540Johnson v. State (1909)
56 Tex. Crim. 544Ex Parte Henderson Parker (1909)
From Bowie County. Original application for writ of habeas corpus asking release from commitment under a conviction under the provisions of a special charter of a violation of the State penal law for unlawfully carrying on his person a pistol; penalty, a fine of $200.
56 Tex. Crim. 547Wheeler v. State (1909)
1. —Murder—Imputing Crime to Another—Charge of Court. Where upon trial for murder the evidence was entirely circumstantial and defendant claimed an alibi and imputed the crime to another, and the evidence raised these issues the court should have pertinently and affirmatively submitted to the jury the issue that if other parties or another party committed the homicide, or if there was reasonable doubt of this, the jury should acquit the defendant. Following Kirby v. State, 49 Texas Crim. Rep., 517, and other cases. 2. —Same—Charge of Court—Murder in the Second Degree—Deadly Weapon. Upon trial for murder where the evidence showed that the weapons used were a shotgun and a sixshooter which were used with deadly effect, there was no necessity in the court’s charge to define a deadly weapon. 3. —Same—Charge of Court—Malice—Murder in Second Degree. Where upon trial for murder the evidence excluded adequate cause, manslaughter and self-defense, the offense could not be of a lower character than murder in the second degree, and the charge of the court which instructed the jury to find defendant guilty if he killed deceased in a transport of passion aroused without adequate cause with the intent to kill was sufficient without charging implied malice; although in a general sense the charge was incorrect; under the facts it was harmless error.
56 Tex. Crim. 551McCoy v. State (1909)
The opinion states the case.
56 Tex. Crim. 553Cotton v. State (1909)Affirmed
1. —local Option—Statement of Facts—Filing. Where upon appeal the appellant filed the proper certificate showing that the statement of facts was filed in the time allowed by statute, the statement will be considered. 2. —Same—Evidence—Bills of Exception. Where upon appeal the record showed that the testimony set out in appellant’s bill of exceptions was admitted, there was no error, 3. —Same—Charge of Court—Election by State. Where upon trial of a violation of the local option law the evidence showed that the defendant sold the whisky practically at one and the same time, there was no error in the court’s refusal to require the jury to say upon what transaction they found defendant guilty. 4. —Same—Charge of Court—Intent—Practicing Physician—Prescription. Where upon trial of a violation of the local option law the evidence showed that the defendant sold straight whisky, and a physician subsequently , put medicine in the whisky for the prosecuting witness, there was no error in the court’s refusal to instruct the jury as to defendant’s good faith in selling liquor under a prescription of a practicing physician.
56 Tex. Crim. 555Markowski v. State (1909)
Forgery—Insufficiency of the Evidence—Want of Fraudulent Intent. Where upon trial for forgery the evidence failed to show an intent to defraud, the same was insufficient to support a conviction.
56 Tex. Crim. 557Roch v. State (1909)
The opinion states the case.
56 Tex. Crim. 559Dupree v. State (1909)
The opinion states the case.
56 Tex. Crim. 562Dupree v. State (1909)
1.—Local Option—Former Conviction—Appeal Pending. The plea of former conviction can not be interposed where the judgment in which the conviction is claimed has been appealed from and is pending at the time the plea is interposed in the case on trial. 2. —Same—Case Stated. Where upon a trial of a violation of the local option law defendant interposed his plea of former conviction, and the evidence showed that the case in which he claimed conviction was pending on appeal, the plea was not sustained. 3. —Same—Judicial Knowledge—Same Transaction. The trial court must take judicial notice that an appeal was pending in another case between the same parties on the same transaction, and no evidence was necessary to show this fact where a plea of former conviction had been interposed in the case on trial between the same parties on the same transaction. 4. —Same—When Plea is Available. If the judgment was in another severable case, and in respect to a separate transaction, it could not avail as a basis of a plea of former conviction; and the true test is, were the parties the same, was the transaction the same; and the number of the case and other formal matter do not enter into the question. 5. —Same—Charge of Court—Case Stated. Where upon trial of a violation of the local option law the defendant interposed liis plea of former conviction, and it was shown that said former conviction had been suspended by an appeal of the case, the said plea was not available; and moreover the court having nevertheless submitted said plea on a proper charge, the defendant could not complain, and there was no error.
56 Tex. Crim. 569Atchley v. State (1909)
The opinion states the case.
56 Tex. Crim. 571Oates v. State (1909)
The opinion states the case.
56 Tex. Crim. 594Gardner v. State (1908)
1.—Attempt to Rape—Indictment—Misspelling. Where upon trial for assault with an attempt to rape the word grand in the word grand jurors was spelled “gardn;” the court could look to another count in the indictment to make the count upon which defendant was tried intelligible, and the word “aforesaid” relating back to the beginning of the indictment to the words “grand jurors,” made the misspelled word unnecessary, and the indictment was | sufficient. 2. —Same—Charge of Court—Supplementary Charge. Where upon trial for attempt to rape the court gave his general charge, and also at the same time a supplementary charge, the jury could not have been misled into the belief that the supplemental charge was not a part of the general charge. 3. —Same—Charge of Court—Requested Charges. Where upon trial for attempt to rape the court charged correctly on all the issues raised by the evidence, there was no error in refusing special charges on the same issues. 4. —Same—Evidence—Res Gestae. Upon trial for attempt to rape there was no error in admitting the statement made by the prosecutrix a few moments after the occurrence of the alleged attempt to rapé, showing that defendant was in her room and had hold of her, etc.; in connection with the defendant’s testimony admitting that he was in said room, and showing a continuous transaction, this was res gestae. 5. —Same—Evidence—Motive. Upon trial for attempt to rape there was no error to show defendant’s motive in that he left the house of the prosecutrix after the assault, moving his property with him. 6.—Same—Evidence—Res Gestae—Shorthand Pacts. Upon trial for attempt to rape there was no error in admitting in evidence the fact that defendant had a gun under his bed, and that on the night of the alleged assault he was heard handling the gun in his room, after he had been charged with the offense. 7.—Same—Additional Instructions—Change of law. Under the former law the trial judge was inhibited in any case from giving other charges] except on application of the jury or the party or his counsel; this rule, however, in the adoption of the Revised Statutes of 1879 was omitted in the revision, and the judge can call the jury back at their request or at his own volition, and explain his charges to the jury. Following Benavides v. State, 31 Texas Crim. Rep., 173, and other cases.
56 Tex. Crim. 598Murphy v. State (1908)
The opinion states the case. [Rehearing denied June, 1909.—Reporter.]
56 Tex. Crim. 599Green v. State (1909)
The opinion states the case.
56 Tex. Crim. 602Bennett v. State (1909)
The opinion states the case.
56 Tex. Crim. 604Sheppard v. State (1909)
1.—Rape—Evidence—Age of Prosecutrix. Where upon trial for rape the prosecutrix testified that her mother told her that she was fourteen years of age, there was no error in admitting such statement; it not being shown whether prosecutrix mother was .dead at the time. Distinguishing Johnson v. State, 42 Texas Crim. Rep., 298. 2. —Same—Contradicting Witness. A mere rumor of an accusation is not a basis for the impeachment of a witness. 3. —Same—Age of Prosecutrix. Upon trial for rape where it appeared that the witness was not so situated and related to the prosecutrix as to be in position that a statement as to her age could be used as a part of her family historv, there was no error in excluding same. [Rehearing denied June 23, 1909.—Reporter.]
56 Tex. Crim. 607Pearson v. State (1909)
1. —Murder—Continuance—First Application. Where upon trial for murder defendant’s first application for continuance showed proper diligence, and that the testimony of the absent witness was material, the same should have been granted. 2. —Same—Evidence—Attorney and Client—Threats—Privileged Communication. Where upon trial for murder defendant’s attorney was introduced by the State to prove qualified threats against the deceased, the same was not a privileged communication between attorney and client, and was admissible. 3. —Same—Evidence—Expert Testimony. Upon trial for murder it was reversible error to permit a physician to give his opinion as to whether the hand of the deceased could have been so placed or held as to have received the wound on the thumb at the same time the shot struck the wrist. This was not within line of expert testimony, but it related to the position of the parties during the difficulty. Following Williams v. State 30 Texas Crim. App., 429, and other cases. ’ i.—Same—Evidence—Declarations of Third Party—Impeachment. Upon trial for murder there was no error in admitting in evidence the declarations of a third party to the effect that he told defendants daughter to stand up for her father and not tell anything against him; for the purpose of a Hacking the credibility of said party as a witness, the same being properly limited thereto. Davidson, ¡Presiding Judge, dissenting.