57 Tex. Crim.

Volume 57 — Texas Criminal Reports

201 opinions

57 Tex. Crim. 1Brown v. State (1908)
Election law — Advancing Money to Pay Poll Tax — Constitutional law. The so-called Terrell Election Law, which makes it a misdemeanor for any one to advance money to another to pay his poll tax, is constitutional. Following Solon v. State, 54 Texas Grim. Rep., 261. [Rehearing denied October 13, 1909. Writ of error granted to Supreme Court of the United States, October 25, 1909. The action of said court will be noted in a subsequent volume of these reports.— Reporter.]
57 Tex. Crim. 2Ex Parte Collins (1909)
1. —Illegal Practice of Medicine — Osteopathy—Constitutional law — Drugs. Under section" 13 of the Act of the Thirtieth Legislature, a person practicing Osteopathy may be prosecuted and convicted although he uses no medicine, surgery or drugs to relieve his patient, where the evidence showed that he practiced his profession of Osteopathy without proper license. 2. —Same—Constitutional law — Osteopathy—Medicine—Police Power. Under section 31, article 16, of the Constitution, the Legislature may regulate the practice of osteopathy, and is not confined to regulating practitioners of certain schools of medicine; besides, there is no constitutional limitation which inhibits the Legislature, under its police power, to prevent any one practicing any species or character of remedy to cure any real or supposed ill of the human body for pay. Following Logan v. State, 5 Texas Grim. App., 306. [Rehearing denied October 13, 1909.] [On writ of error in Supreme Court of the United States, action of said court will be noted in subsequent volume of these reports.— Beporter.]
57 Tex. Crim. 5Harvey v. State (1909)
The opinion states the case.
57 Tex. Crim. 7Harvey v. State (1909)
1. —Wilfully Exposing Person — Assignment of Errors — Motion for New Trial. An assignment of errors lias no place in the Court of Criminal Appeals; all errors must be raised in the motion for new trial. 2. —Same—Motion for New Trial — Filing. Upon appeal it is necessary that the motion for new trial is filed in the court below, otherwise it cannot be considered.
57 Tex. Crim. 8Robbins v. State (1909)
1. — Gaining—Private Residence — Family. Where, upon trial for gaming, the evidence showed that the defendant played cards for money; that he was not married, and had no family; that he lived alone, except that another man was staying at defendant’s place at the time of the trial, and had been for a short time, such house was not a private residence occupied by a family, and the conviction is sustained. 8. — Same—Charge of Court — Penalty—Repeal. Upon trial for gaming, where the court charged the jury the former penalty, which had been repealed by a subsequent law, and the law itself had not .been repealed, and there was no exception at the time to the court’s charge, and the matter was not challenged in the motion for new trial, there was no error. Following Manning v. State, 46 Texas Grim. Rep., 326. [Rehearing denied October 13, 1909.]
57 Tex. Crim. 10Rasor v. State (1909)
1. —Gaming—Indictment—Constitutional Law — Cruel Punishment. See opinion for indictment, which is in strict accordance with the statute passed by the Thirtieth Legislature, and which statute is not unconstitutional on the ground that it inflicts a cruel and unusual punishment. 2. —Same—Constitutional Law — Jury Wheel. The Act of the Thirtieth Legislature, known as the jury-wheel law, is constitutional. Following Smith v. State, 54 Texas Grim. Rep., 298. 3. —Same—Jury and Jury Law — Talesmen. Where, upon trial for keeping a gambling house, etc., it appeared from the record upon appeal that the court ordered the sheriff to execute instanter attachments for the absent jurors, but the sheriff was guilty of laches, and did not summons said regular jurors, whereupon the court ordered him to summons talesmen, which was done, and there was nothing to show that the defendant’s rights were prejudiced thereby, inasmuch as he received the lowest punishment, on palpable evidence of his guilt, there was no reversible error. 4. —Same—Evidence—Date of Offense. Upon trial for keeping and being concerned in keeping a gambling place, there was no error in admitting testimony going to show acts, control, ownership and direction on the part of the defendant of the place where the gambling was done, both before and immediately after the day alleged in the indictment. 5. —Same—Evidence—Bill of Exceptions. An allegation in defendant’s bill of exceptions that it had not been shown that he owned a certain table and other paraphernalia introduced in evidence on a charge of keeping a gambling place, is not a statement of a fact, and therefore insufficient; however, there was no error in admitting testimony that said gambling place had been raided by the officers, and certain tables, chips and other things were found therein, while defendant’s partner in the gambling place was there, although defendant was absent. 6. —Same—Evidence—Description. Where the indictment described the gambling place as a building and room in the county of the prosecution, there was no error in admitting testimony more particularly describing said gambling place. 7. —Same—Charge of Court — Requested Charges. Where, upon trial for keeping a gambling place, the evidence showed that the defendant and another acted together, there was no error in rejecting special charges requested by the defendant with reference to his control or interest in said place, inasmuch as the court had substantially given the same in his main charge. 8. —Same—Charge of Court — Accomplice. The law in gambling cases specially provides that the witnesses who testify for the State are not accomplices, although engaged in the gaming or gambling; and there was no error in the court’s failure to charge on accomplice testimony. [Motion for rehearing withdrawn October 13, 1909.]
57 Tex. Crim. 15Hernandez v. State (1909)
Theft of a Mule — Sufficiency of the Evidence. See opinion for facts held sufficient to support a conviction of theft of a mule. [Eehearing denied October 13, 1909.]
57 Tex. Crim. 15Todd v. State (1909)
The opinion states the case.
57 Tex. Crim. 17Kirkpatrick v. State (1909)
The opinion states the case.
57 Tex. Crim. 19Mumphreys v. State (1909)
Tried below before the Hon. W. C. Buford. Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary.
57 Tex. Crim. 19Muhphreys v. State (1909)
57 Tex. Crim. 21Hart v. State (1909)
The opinion states the case.
57 Tex. Crim. 26Todd v. State (1909)
1. —Local Option — Calling Case — Regular Order — Practice. Upon trial of a violation of the local option law, where the record showed on appeal that a large number of cases were on the setting of the docket of the trial court for the date when the case was called; that, reading from the top to the bottom of the column in which the setting appeared, the case was called in its regular order, although lower numbers followed, there was no error; besides, this is a matter of practice within the discretion of the trial court, unless injury or injustice to appellant appeared on appeal. 2. —Same—Continuance—Want of Diligence. Where, upon trial of a violation of the local option law, it appeared from the record on appeal that, after the subpoena was returned, no further process had been applied for, and that if this had been done the presence of the absent witness could have been secured, the motion for continuance was properly overruled. 3. —Same—Evidence—Description of Building. Upon trial of a violation of the local option law there was no error in admitting in evidence a description of the buildings, fixtures and surroundings where the intoxicating liquor was sold; at least, no injury was shown thereby. [Rehearing denied October 13, 1909.]
57 Tex. Crim. 28Goff v. State (1909)
The opinion states the case.
57 Tex. Crim. 29Ex Parte Brady (1909)
From Jefferson County. Original application for habeas corpus for release from commitment under a capias of arrest for violating the wild game law.
57 Tex. Crim. 30Carson v. State (1909)
Theft — Ungathered Indian Corn — Variance. Where the information charged ordinary theft under article 868, Penal Code, and the proof showed that the information should have been drawn under article 874, Penal Code, with reference to the felonious taking of ungatliered corn, etc., the variance is fatal, and the conviction could not be sustained.
57 Tex. Crim. 32Lawshe v. State (1909)
1. — Embezzlement—Extradition—Indictment. Where, upon trial for embezzlement, the defendant moved to quash the indictment on the ground that he was arrested without proper warrant of extradition in the Republic of Mexico,, but adduced no proof on said motion, the same could not be considered on appeal. g. — Same—Bill of Exceptions — Retiring Jury. Where, upon appeal from a conviction of embezzlement, appellant’s objection to the retirement of the jury by the court to hear a discussion of the law was not reserved by proper bill of exceptions, the same could not be considered. 3. —Same—Charge of Court — Eelony—Same Transaction. Where, upon trial for embezzlement, the evidence showed that the receipts of the company’s office, for which defendant acted as agent, ran from $1,200 to $1,800 per month; that the aggregate shortage of defendant was shown to have been a sum largely in excess of $500; that as much as $300 had not been accounted for on a certain day, and was appropriated by him, there was no error in the court’s charge that, if defendant’s misappropriation was in excess of $50, to convict him of a felony, and in failing to charge that such misappro•priation must have occurred at one time, as the transactions were continuous. Following Taylor v. .State, 29 Texas Grim. App., 466. 4. —Same—Charge of Court — Other Offenses — Intent. Where the defendant was tried for the embezzlement of certain monies coming into his possession as station agent of a railway, and testimony was admitted that he was also agent of a certain express company, and that he was short in his accounts in both capacities, and the court instructed the jury that his shortage as express agent was admitted in evidence solely to show his in- . tent, and not for the purpose of showing his guilt, there was no error. 5. —Same—Evidence—Imputing Crime to Another — Animus. Upon trial for embezzlement there was no error in rejecting testimony of the defense to show animosity or ill-will of a coemploye; the latter not being a witness, and there being no testimony that he misappropriated any of the company’s money; besides the court instructed the jury that, if there was any reasonable doubt that some other person or persons than defendant had misappropriated said money, to acquit defendant, there was no reversible error.
57 Tex. Crim. 38Ex Parte McGuire (1909)
From Potter County. Original application for a writ of habeas corpus asking release from arrest for a violation of the local option law, pending an election contest with reference to said law. The opinion states the case.
57 Tex. Crim. 43Gossett v. State (1909)
1. —Murder—Indictment—Name of Deceased. Where, upon trial for murder, the -indictment charged that the defendant, with malice aforethought, did unlawfully kill a reasonable creature in being, to wit, an infant child of Sudie Gossett, the name of which said infant child is to the grand jurors unknown, by then and there throwing said child into the water, and thereby drowning it, etc., and there was nothing in the evidence to suggest from any source that the child had a name, or that its name by any diligence could have been discovered, the same was sufficient. 2. —Same—Venue—Judicial Knowledge. Where, upon trial for murder, the evidence showed that the crime was committed in the city of Galveston, the court judicially knew that said city is in Galveston County, State of Texas, and the venue was sufficiently proven. Following Monford v. State, 35 Texas Crim. Rep., 237. 3. —Same—Charge of Court — Accomplice—Requested Charge. Where, upon trial for murder, the court charged that the jury were required to find and believe, beyond a reasonable doubt, not only that the child came to its death by being thrown into the water by some one, but were further instructed that, if they had a reasonable doubt as to whether defendant was present at said time and place, and was not the person who threw said child into the water, they should acquit him, this sufficiently submitted the question as to whether defendant was a principal in the crime, and not an accomplice; and there was no error in refusing a special requested instruction on the subject of accomplice. 4. —Same—Sufficiency of the Evidence. Where, upon trial for murder, the evidence, although circumstantial, sustained a verdict of murder in the second degree, the same will not be disturbed. [Rehearing denied December 22, 1909. — Reporter.]
57 Tex. Crim. 51Cole v. State (1909)
1. —Rape—Charge of Court — Force. Where, upon trial for rape, the evidence showed that the defendant took prosecutrix by the hand, compelling her to abandon the path she was going, forcing her to lie down, etc., taken in connection with the threats used', etc., there was no error in submitting to the jury the issue of force. Distinguishing Sharp v. State, 15 Texas Grim. App., 171. 2. —Same—Threats—Sufficiency of the Evidence. Upon trial for rape by force and threats, where the evidence showed that the prosecutrix was accosted by the defendant in a secluded place; that he was armed and desperate; that he forced her to leave the path by threats and force, and to lie down and submit to his assault, etc., there was sufficient evidence to sustain the conviction on the allegations of threats. [Rehearing denied December 21, 1909. — Beporter.]
57 Tex. Crim. 55Dobbs v. State (1909)
Theft — Charge of Court — Explanation—Recent Possession. Where, upon trial for theft, there was no evidence that defendant made any statement as to his possession of the property alleged to have been stolen, or that such possession was challenged, the court erred in submitting' a charge assuming that such explanation was made by the defendant, and under the particular facts of the case it was reversible error.
57 Tex. Crim. 59Heath v. State (1909)
Assault to Murder — Aggravated Assault — Charge of Court. Where, upon trial for assault to murder, the evidence showed that the injured party brought on the difficulty by throwing a rock at the defendant and pulling his pistol, that then defendant attacked him, and cut him with an ordinary pocket knife, not inflicting serious injury, the court should have charged the law of aggravated assault on this phase of the case.
57 Tex. Crim. 63Deadweyler v. State (1909)
1. —Local Option — Continuance—Want of Diligence. Where, upon trial of a violation of the local option law, the record showed that the defendant delayed at least ten or eleven days before he made application for process of the absent witness and a certain apparatus to test the intoxicating qualities of the liquor, and that by proper diligence he could have secured both in time for the trial, there was no error in overruling the application for continuance. 2. —Same—Charge of Court — Good Faith — Mistake of Facts. Where, upon trial of a violation of the local option law, the court properly charged on the question of good faith of the defendant and the intoxicating qualities of the liquor alleged to have been sold, there was no error. 3. —Same—Bequested Charges. Where the requested charges were contained substantially in the main charge there was no error in refusing them. 4. —Same—Jury and Jury Law — Challenge to Array. The fact that some of the jurors were members of "a law and order league would not disqualify them to sit on the case to try defendant of a violation of the local option law, where there was no showing that the officers had acted corruptly in selecting the jury and the jurors being in all respects qualified. The fact that they contributed money in upholding the validity of the local option law would in nowise disqualify them. 5. —Same—Sufficiency of the Evidence. Where the testimony was conflicting as to the intoxicating qualities of the liquor alleged to have been sold, the matter was a question of fact for the jury.
57 Tex. Crim. 66Gober v. State (1909)
The opinion states the case.
57 Tex. Crim. 68Gracy v. State (1909)
The opinion states the case.
57 Tex. Crim. 76Moody v. State (1909)
1. —Sodomy—Grand Jury — Indictment. Where the agreed statement of facts, on appeal from a conviction of sodomy, negatived the idea that the State’s counsel was present while the grand jury was voting upon the indictment, or that he was present while they were deliberating upon said matter, there was no merit in defendant’s complaint that the court below should have quashed the indictment on the ground that the State’s counsel was in the grand-jury room, and present when they were deliberating upon.the accusation against the defendant, or was voting upon same. 2. —Same—Burden of Proof. It is well settled that the burden rests upon defendant to bring himself within the terms of the statute, and show a violation of same, before an indictment will be set aside on the ground that, the State’s counsel was present while the grand jury were deliberating upon the question of finding the indictment. Following Sims v. State, 45 S. W. Rep., 705. 3. —Same—Charge of Court — Penetration. Where, upon trial for sodomy, the court charged the jury that, if they had a reasonable doubt as to penetration, to acquit, there was no error in refusing a special charge upon this question. 4. —Same—Sufficiency of the Evidence. Where, upon trial for sodomy, the conviction was sustained by the positive testimony of one witness, testimony of physicians with reference to the possibility or impossibility of the commission of the offense would not authorize a reversal. 5. —Same—Appointment of Assistant District-Attorney. The question as to whether the Governor had a right to appoint an assistant district attorney under the Act of the Thirty-first Legislature, March 19, 1909, is not decided, as it was not involved in the case.
57 Tex. Crim. 80Fulkerson v. State (1909)
1. —Aggravated Assault — Serious Bodily Injury. Where, upon ■ trial for aggravated assault, the evidence showed that the defendant inflicted serious wounds upon the party injured by means of blows on the latter’s head with a ticket punch, etc., the charge in the indictment is sustained. 2. —Same—Continuance—Second Application. In a second application for continuance it is required to show that the absent testimony cannot be procured from any' other source known to the defendant, and where another witness testified to the same facts there was no error in overruling the motion.
57 Tex. Crim. 82Ex Parte Hughes (1909)
The opinion states the case.
57 Tex. Crim. 84Harris v. State (1909)
Disorderly House — Indictment—Transfer from District to County Court. Where the record showed that the indictment was found in the District Court, and there was no order of transfer from the District to the County-Court, the conviction in the County Court could not be sustained.
57 Tex. Crim. 85Gilbert v. State (1909)
1. — Burglary—Railroad Car — Other Offenses — Charge of Court — Limiting Testimony. Where, upon trial of a burglary of a i ailroad car, the evidence showed a burglary of at least five cars at the same time and place, and the State elected to prosecute for the burglary of a certain ear, there was no error in not limiting the testimony generally, or to limit same to the burglary of said car; the transaction constituting a single act at the same time and place under one possession and ownership. 2. — Same—Charge of Court — Circumstantial Evidence. Where, upon trial for burglary of a railroad car, the evidence was such that a charge on circumstantial evidence was not required, but was nevertheless given, the defendant could not complain, as such charge was favorable to him.
57 Tex. Crim. 88Flournoy v. State (1909)
1. —Theft of Hog — Charge of Court — Reasonable Doubt. Where, upon trial for tlieft of a hog, the court sufficiently instructed the jury as to the presumption of innocence and reasonable doubt, there was no error. 2. —Same—Practice on Appeal. Criticisms of the charge of the court in appellant’s brief, which are not mentioned in the motion for new trial or raised by bill of exceptions, cannot be considered on appeal.
57 Tex. Crim. 89Wooten v. State (1909)
1. —Local Option — Bills of Exception — Practice in County Court. Where a party appealing has his bills of exception so modified or changed as to deprive him of what he believes to be fair and correct, he should take such steps as are required by the statute to protect himself; and it is not sufficient to have the court below certify that he signed the bill with his explanations and qualifications without the knowledge of the appellant; and where it did not appear that the court was wrong in his action in rejecting one bill and filing others with his qualifications, there was no error. 2. —Same—Information—Jurisdiction—Piling. Where the information and the complaint were fastened together, and the file mark placed upon one, this showed a sufficient filing of both papers, and there was nothing in the contention that the information read to the jury had not been filed, and the court was, therefore, without jurisdiction. Following Stinson v. State, 5 Texas Grim. App., 31, and other cases. 3. —Same—Evidence—Election Contest. Where, upon trial of a violation of the local option law, the State introduced in evidence the minutes of the Commissioners’ Court with reference to the order of election and putting the law into force, there was no error; besides, such objection to said entries could not be heard, as the same involved an election contest in the District Court, under the Act of the Thirtieth Legislature. 4. —Same—Bill of Exceptions. Where, upon trial of a violation of the local option law, the court, in his refusal of defendant’s bill of exceptions, stated that the State’s counsel did not use the written statement of the State’s witness to refresh his memory, there was no merit in the defendant’s contention that the State’s counsel held this statement in his hand while examining the witness, without first showing same to defendant’s counsel. 5. —Same—Bill of Exceptions. Where upon appeal appellant’s bill of exceptions was not approved by the court below because no such proceedings occurred as stated in the bill, there was no error. 6. —Same—Evidence—Cross-examination—Complaint. Upon trial of a violation of the local option law there was no error in sustaining an objection to defendant’s cross-examination of a State’s witness asking him why he did not sign the complaint against the defendant, it appearing that another party had signed the complaint. This testimony was irrelevant. 7. —Same—Different Transactions — State’s Election. Where, upon trial of a violation of the local option law, one of the State’s witnesses sufficiently identified the date of the transaction, while another State’s witness was uncertain, and there was no motion to require the State to elect, there was no merit in defendant’s contention that the testimony of the State showed different transactions. [Rehearing denied October 21, 1909.]
57 Tex. Crim. 93Joy v. State (1909)
The opinion states the case.
57 Tex. Crim. 104Graham v. State (1909)
1. —Murder—Evidence—Prior Difficulty — Deadly Weapon. Where, upon trial for murder, the evidence showed that the deceased was cut with a sharp instrument, supposed to be a knife, a few moments after a prior difficulty, there was no error in permitting the State to show that the defendant had a knife during said prior difficulty, especially where defendant denied having had a knife and of cutting the deceased. 2. —-Same—Evidence—Dying Declaration — Res Gestae. Upon trial for murder resulting in a conviction for aggravated assault, there was no error in admitting testimony that the deceased, shortly after the last difficulty, told the witness that he was going to die, and that upon being asked who did it answered that it was the defendant, this was both res gestae and dying declarations. Following Morgan v. State, 54 Texas Crim. Rep., 542, and other cases. 3. —Same—Bill of Exceptions — Objections to Evidence — Practice on Appeal. Where, upon appeal from a conviction of aggravated assault, the grounds of objection were not verified in any manner by the bill of exceptions, the approval of the bill does not certify the correctness of the grounds of objection, but only verifies the fact that the grounds of objection were urged. 4. —Same—Evidence—Practice on Appeal. Where, upon appeal from a conviction of aggravated assault, it appeared from the record that the appellant, in answer to a question whether he knew who cut the deceased, answered in the negative, there was no error. 5. —Same—Evidence—Defense of Another. Upon trial for murder, where the defendant claimed that he acted in defense ° of his brother, and it was shown that said brother had received wounds on the head, there was no error to permit the State to show that another person than deceased inflicted said wounds, and that the deceased had no pistol, knucks, or knife with which these wounds could have been inflicted. 6. —Same—Evidence—Rebuttal. See opinion for evidence in rebuttal introduced by the State which was admissible for the due administration of justice. 7. —Same—Evidence—Reputation for Truth and Veracity. Where, upon trial for murder, the credibility of the testimony of a State’s ■ witness was attacked by introducing testimony to contradict him, there was no error in permitting the State to introduce testimony supporting the general reputation for truth and veracity of the witness so attacked. 8. —Same—Evidence—Contradicting Witness. Upon trial for murder there was no error in rejecting testimony offered in support of the general reputation for truth and veracity of the defendant’s witness who had attacked the testimony of a State’s witness, and after said State’s witness’s general reputation had been sustained by witnesses for the State. 9. —Same—Argument of Counsel. Upon trial for murder, where State’s counsel, among other remarks, stated that the jury knew that the history of the county of the prosecution ran red with the blood of murders committed within its border, but his other remarks in connection therewith were legitimate, and there was no charge requested by the defendant to withdraw the objectionable argument from the jury, but simply an objection thereto, and the defendant was convicted of aggravated assault, there was no reversible error. 10. —Same—Charge of Court — Requested Instructions. Where, upon trial for murder, the requested instructions were, in substance, the same as the charges given by the court in regard to the matters mentioned in the special instructions, there was no error in refusing them. [Rehearing denied December 22, 1909. — Reporter.]
57 Tex. Crim. 111Welch v. State (1909)
The opinion states the case.
57 Tex. Crim. 125Batte v. State (1909)
1. — Forgery—Evidence—Bill of Exceptions — Expert. Where, upon trial for forgery, defendant’s objection was that the State’s witness on handwriting did not qualify as an expert, but no bill of exceptions was reserved on this point, the matter could not be considered on appeal, although the point was raised in the motion for new trial. 3. — Same—Comparison of Handwriting — Sufficiency of Proof — Statutes Construed. Where, upon trial for forgery, there was circumstantial evidence establishing the guilt of the defendant, in addition to the proof of defendant’s handwriting by an expert State’s witness, article 794, Code Criminal Procedure, providing that comparison of handwriting only shall not be sufficient to establish the handwriting of one who denies his signature under oath, does not apply. Overruling Spicer v. State, 52 Texas Crim. Rep., 177. Davidson, Presiding Judge, dissenting. 3. — Same—Jurisdiction—Venue—Statutes Construed. Under article 225, Code Criminal Procedure, the offense of forgery may be prosecuted in any county where the written instrument was forged, or where the same was used or passed; and where the check was forged in the State of Oklahoma, and passed in Dallas County, Texas, the prosecution in the latter county and State was proper.
57 Tex. Crim. 131Franks v. State (1909)
The opinion states the case.
57 Tex. Crim. 132Rankin v. State (1909)
The opinion states the case.
57 Tex. Crim. 134Couch v. State (1909)
The opinion states the case.
57 Tex. Crim. 135Cravens v. State (1909)
The opinion states the case.
57 Tex. Crim. 139McCleary v. State (1909)
1. —Murder—Charge of Court — Weight of Evidence. Where, upon trial for murder, the evidence raised an issue as to the credibility of the testimony of defendant’s witnesses, it was reversible error to charge the jury that such testimony tended to contradict or impeach the defendant’s witnesses; this was a charge on the weight of the evidence. 2. —Same—Charge of Court — Defendant’s Right to Seek Retraction. Upon trial for murder, where the evidence raised the issue of defendant’s right to seek out the deceased and ask him to retract or apologize for insulting language towards the defendant, it was reversible. error to limit such right to a peaceable mission of the defendant in seeking such retraction or apology. Following King v. State, 51 Texas Grim. Rep., 208, and other cases. Ramsey, Judge, dissenting.
57 Tex. Crim. 144Jones v. State (1909)
The opinion states the case.
57 Tex. Crim. 149Martin v. State (1909)
The opinion states the case.
57 Tex. Crim. 151Gee v. State (1909)
The opinion states the case.
57 Tex. Crim. 152Hankins v. State (1909)
The opinion states the case.
57 Tex. Crim. 153Eubanks v. State (1909)
1. — Theft—Receiving Stolen Property — Charge of Court. Where, upon trial of misdemeanor for theft, and receiving stolen property, the defendant claimed under the evidence that he purchased said alleged property, the court should have submitted this phase of the case, his attention having been called thereto by a special charge, although the latter was not strictly accurate. 2. —Same—Charge of Court — Possession. In all indictments of theft it is essential to aver possession and to submit this issue to the jury, and where a charge of the court omitted this essential, and it was properly excepted to, the same was reversible error. 3. —Same—Charge of Court — Voluntary Return of Stolen Property. Where, upon trial for theft, there was no evidence of a voluntary return of the alleged stolen property, the court erred in submitting this issue, the defendant claiming that he had purchased the same and disclaiming fraudulent taking.
57 Tex. Crim. 156Ex Parte Gulledge (1909)
From Cherokee County. Original application for. writ of habeas corpus asking release from arrest for a violation of the stock law.
57 Tex. Crim. 157Brandt v. State (1909)
The opinion states the case.
57 Tex. Crim. 158Haney v. State (1909)
Tried below before the Hon. A. W. Bitchie. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail. The opinion states the case.
57 Tex. Crim. 160Phillips v. State (1909)
Theft of Hog — Charge of Court — Alibi. Where, upon trial for the theft of a hog, the court charged on principals, circumstantial evidence, etc., and the defendant requested no special instructions on the question of alibi, there was no error. Following Jones v. State, 53 Texas Grim. Rep., 131. [Rehearing denied November 3, A. D. 1909. — Beporter.]
57 Tex. Crim. 163Morris v. State (1909)
1. —Gaming—Indictment—Pleading. Where the indictment charged that defendant did then and there unlawfully keep and exhibit for the purpose of gaming a gaming table and bank, the same was not duplicitous and conformed to precedent. Following Pruitt v. State, 63 Texas Grim. Rep., 316, and other cases. 2. —Same—Charge of Court. Where the evidence showed that the defendant exhibited a game of monte, and that money was bet thereon, the court did not err in not submitting a charge to acquit the defendant. 3. —Same—Charge of Court — Definition of Offense — Monte. Where the evidence showed that the defendant exhibited a monte bank it was not necessary to define said banking game, as the statute expressly defines monte as a banking game. Following Pruitt v. State, 53 Texas Grim. Rep., 316. 4. —Same—Public Resort. Where the evidence showed that the defendant exhibited a monte game for the purpose of obtaining bets, it was not necessary to show that the game was exhibited at a place where people resorted for the purpose of gaming to make it a felony. 5. —Same—Newly Discovered Evidence — Want of Diligence. Where the testimony set out in the motion for new trial was simply of an impeaching character it did not come within the rules of newly discovered evidence; besides, there was no diligence. [Rehearing denied November 3, 1909. — Reporter.]
57 Tex. Crim. 165Davis v. State (1909)
Murder — Cross-Examination.—Contradicting Witness — Other Offense. Where, upon trial for murder, the defendant had testified in his own behalf that after killing the deceased he fired a second shot at a house to keep any one from coming out and shooting him, there was no error in permitting State’s counsel, on cross-examination of defendant, to bring out the fact that defendant was indicted for assault to murder of another party than the deceased, who was hit by the second shot in said house, the court charging the jury that the defendant could not be convicted of shooting or threatening to shoot any other person than the deceased, and the verdict being for manslaughter, assessing the minimum penalty; besides, such testimony was admissible to contradict or impugn defendant’s statement that he only fired into the house to keep any one from coming out, and to show the motive of such statement. Davidson, Presiding Judge, dissenting. [Rehearing denied November 3, 1909. — Reporter.]
57 Tex. Crim. 170Benevidas v. State (1909)
The opinion states the case.
57 Tex. Crim. 172Walker v. State (1909)
1. —Unlawfully Giving Intoxicating Liquor to Minor — Charge of Court— Words and Phrases — Statutes Construed. Where, upon trial for unlawfully giving intoxicating liquor to a minor, the evidence was conflicting as to whether the defendant actually gave to the minor any such liquor, it was reversible error to charge the jury, over the objection of the defendant, that if the defendant was instrumental, or in any way concerned, in giving said liquor to said minor, to convict, as the prosecution could only be maintained under article 400, Penal Code, and was not based upon the Act of the Thirtieth Legislature, General Laws 1907, page 216, which makes it penal for any one to be in any way interested in the gift of such liquor to a minor. 2. —Same—Words and Phrases — Scope of Statute — Legislative Intent. Where the Legislature has enacted different and separable offenses, enlarging the scope of an earlier statute by a later one, it cannot be assumed that the additional words in the later statute are meaningless. Nor can it be assumed that a charge of the court, including the terms of both statutes in a prosecution evidently based upon the former statute, is harmless, where said charge was excepted to by the defendant.
57 Tex. Crim. 174Evans v. State (1909)
The principal witnesses for the State testified that while the injured party and others were on their way to school on the morning of the difficulty, passing defendant’s cow lot as the latter was turning out his cows into the road, the accused was attacked by the defendant after the defendant had thrown a stick at the party and the same had been thrown back by the injured party, and that in the altercation which ensued the defendant drew his pocket knife and cut the injured…
57 Tex. Crim. 177Lee v. State (1909)
1. —Theft of Cattle — Charge of Court — Original Taking. Where, upon trial for the theft of cattle, the evidence showed that the owner of the alleged cattle drove them into a bunch of defendant’s cattle, etc., and asked him to sell same and send him the money, the court should have charged the jury that, if defendant was not engaged in the original taking of the cattle in question, to acquit him, regardless of whether he sold the cattle subsequently; and the charge of the court, which made the defendant’s guilt depend upon the fact whether he received and sold said cattle, and sent the money to the owner, was reversible error. 2. —Becent Possession — Charge of Court — Weight of Evidence. Upon trial for theft of cattle, a charge of court on recent possession, which instructed the jury that if such possession was of a character to demand of defendant an explanation, and he failed or refused to make the same, to find him guilty if such possession was personal, recent, exclusive, etc., was on the weight of the evidence. Following Berry v. State, 37 Texas Crim. Bep., 44, and other cases. 3. —Same—Charge of Court — Becent Possession — Weight of Evidence. A charge of the court on possession of property recently stolen, which charged the jury that, unless the defendant had opportunity to explain such possession, would not in itself warrant a conviction, but should be considered as a circumstance in connection with other evidence, is on the weight of the evidence. Following Wheeler v. State, 34 Texas Crim. Bep., 350, and other cases.
57 Tex. Crim. 179Zachary v. State (1909)
1. —Rape—Continuance—Failure to Set Out Facts. Where, upon trial for rape, the application for continuance did not set out the facts which defendant expected to prove by the absent witnesses, there was no error in overruling the motion for continuance. 2. —Same—Hearsay Testimony. .Upon trial for rape there was no error in sustaining objection to the question asked the mother of the prosecutrix, to the effect if she did not hear that the school trustees had threatened to expel her daughter from school on account of ‘the daughter’s immoral'conduct prior to the alleged rape. 3. —Same—Evidence—Age of Prosecutrix — Defendant’s Belief. One who has unlawful intercourse with a female under the age of consent is not protected by his belief as to the age of such female at tlie time, and he must know at his peril whether her age is such as to make such act of intercourse rape; and there was no error upon trial of rape to refuse to compel the prosecutrix as a witness for the defendant to answer the question whether she did not tell the defendant, at a certain time and place, that she was of a certain age. Following Edens v. State, 43 S. W. Rep., 89. 4. —Same—Evidence—Reputation for Chastity — Bill of Exceptions. While it is questionable whether want of chastity of a prosecutrix under the age of consent can be shown on a trial for rape, there was no reversible error where the court explained, in the approved bill of exceptions, that he had permitted the defense to go into the question of the reputation of prosecutrix for chastity, especially where such explanation of the court is not controverted in defendant’s bill of exceptions proven up by bystanders. 5. —Same—Evidence—Imputing Crime to Another. Upon trial for rape there was no error in excluding testimony for the defense that no indictment had been found against a certain party for the offense upon which defendant was upon trial, because such indictment would have weakened the State’s case. 6. —Same—Bill of Exceptions by Bystanders — Conflict—Explanations by Court — Practice on Appeal. Where, upon trial for rape, the court first refused to permit the defense to introduce testimony as to the general reputation for chastity of prosecutrix prior to the time of the alleged rape, but afterwards changed his ruling, and informed defendant’s counsel that he could introduce such testimony, but that counsel refused to avail himself of such ruling, and this matter -became a question of controversy between the court’s explanation in the filed bill of exceptions and defendant’s bill of exceptions proven up by bystanders, and the matter was left in doubt, the Court of Criminal Appeals, in testing the accuracy of such conflicting statements, may look to the statement of facts on file. 7. —Same—Sufficiency of the Evidence. Where, upon trial for .rape, the defendant’s admissions, as testified to by his own witness, confirmed the testimony of the prosecutrix as to the carnal intercourse as alleged, the conviction will not be disturbed.
57 Tex. Crim. 185Carr v. State (1909)
The opinion states the case.
57 Tex. Crim. 186Jaehnig v. State (1909)
Appeal'from a conviction of simple assault; penalty, a fine of $10.
57 Tex. Crim. 187Groves v. State (1909)
The opinion states the case.
57 Tex. Crim. 188Southern v. State (1909)
The opinion states the case.
57 Tex. Crim. 196White v. State (1909)
The opinion states the case.
57 Tex. Crim. 198Lucas v. State (1909)
Gaming — Dice—Craps—Insufficiency of the Evidence. See opinion for evidence held manifestly insufficient to sustain a conviction of the offense of unlawfully playing and betting at a game played with dice called craps. Following Looper v. State, 56 Texas Grim. Rep., 498.
57 Tex. Crim. 199Roberts v. State (1909)
1. — Murder—Conflict of Testimony — question of Fact — Practice on Appeal. On trial for murder, where the State claimed criminal intent on the part of the defendant, and the latter claimed an accidental shooting of the deceased, the Court of Criminal Appeals will not reverse for the insufficiency of the evidence. 2. — Same—Newly Discovered Testimony — Cumulative Testimony. Where the testimony set out in the motion for new trial relating to the physical condition of the ground and surroundings of the scene of the homicide was merely cumulative to that introduced on the trial, it does not come within the scope of newly-discovered evidence, and the court did not err in refusing a new trial.
57 Tex. Crim. 201Schaper v. State (1909)
The opinion states the case.
57 Tex. Crim. 204Harryman v. State (1909)
Recognizance — Judgment Nisi — Scire Facias — Service—Judgment by Default. Where the officer’s return on the scire facias did not show that each of the defendants were served in person with a true copy of the writ, giving the date, and place of such service, a judgment by default to make final a judgment nisi could not be sustained. Following Fulton v. State, 14 Texas C'rim. App., 32, and other cases.
57 Tex. Crim. 205Ferguson v. State (1909)
The prosecutrix testified that after she had retired to her room at defendant’s home and gone to bed, the defendant entered her room and got on prosecutrix’s bed and placed his hand across her breast; that she instantly threw up her hands and felt his rough hand and also his mustache; that she asked, “Who is that?” and he said, “Be quiet, Marie, this is Ferguson,” speaking in a low tone of voice; that she jerked loose, jumped over the foot of the bed, opened the door to the…
57 Tex. Crim. 208Glover v. State (1909)
Among other things the State proved that the defendant stated at the time of buying the clothes from the prosecuting witnesses that he had money in the bank alleged in the indictment, and that thereupon the owner of the goods wrote up a check against said bank and that defendant signed it in his presence.
57 Tex. Crim. 213Jerue v. State (1909)
The opinion states the case.
57 Tex. Crim. 216Hines v. State (1909)
The opinion states the case.
57 Tex. Crim. 218Justiss v. State (1909)
Aggravated Assault — Simple Assault — Former Conviction — Evidence—Moral Turpitude. Where, upon trial of aggravated assault, the defendant pleaded self-defense and former conviction in the "city court of simple assault-, it was reversible error to permit the State to cross-examine defendant about some previous, fights he had had five and fifteen years before, and. not connected with the transaction, as this was toó' remote to discredit defendant’s testimony. Following Mérriwether v. State, 55 Texas Grim. Rep., 438. - [Rehearing denied December 22, 1909. — Reporter.]
57 Tex. Crim. 220Goode v. State (1909)
After the State had introduced in evidence the two confessions of defendant made- by her before the grand jury and that they were freely and voluntarily made; that they were made under proper warning, and not in the hope of reward, without fear, etc., the defense sought to show that these confessions were not freely made, and introduced testimony that the defendant at the time of making them was acting either under coercion or persuasion; that she had been induced to make…
57 Tex. Crim. 241Groszehmigem v. State (1909)
The opinion states the case.
57 Tex. Crim. 247Elkins v. State (1909)
The opinion states the case.
57 Tex. Crim. 249O'Neal v. State (1909)
The opinion states the case.
57 Tex. Crim. 250Boyd v. State (1909)
Disturbing Religious Worship — Evidence—Opinion of Witness — Res Gestae— Harmless Error. •Upon trial of disturbing religious worship, there was no reversible error in permitting the State’s witness to state his reasons why, after he met defendant, as the witness went out of the house of worship, he did not return thereto, since the State’s testimony showed that the defendant immediately entered the house where religious worship was in progress, and there the disturbance took place; besides, defendant received the minimum punishment, and while the witness’ opinion was inadmissible, yet, being part of a continuous transaction, the error, if any, was harmless.
57 Tex. Crim. 251Brooks Alias Schofield v. State (1909)
The opinion states the case.
57 Tex. Crim. 252Alexander v. State (1909)
Carrying Brass Knuckles — Sufficiency of the Evidence — Traveler. Where, 'upon trial of unlawfully carrying brass knuckles, the State’s evidence showed that the defendant deflected from his course of travel and .carried, the brass knuckles about town to different, places, the conviction is sustained, although under the defendant’s testimony" he was shown' to be a traveler Within the purview of the statute. Following Stilly v. State, 27 -Texas Grim. App.', 445.
57 Tex. Crim. 254Leonard v. State (1909)
1. —Burglary—Recent Possession — Charge of Court. As a prerequisite to a charge applicable to the possession and explanation of such possession of recently stolen property, the fact of possession must be shown, and where this has not been done such a charge is upon the weight of the evidence. 2. —Same—Charge of Court — Possession Unexplained and Exclusive. Where, upon trial for burglary, the evidence failed to show that the defendant was in personal possession of the alleged stolen property, it was error to charge the jury with reference to possession of recently stolen property without further charging that, to constitute possession under this character of case, it must be recent, personal and exclusive. •
57 Tex. Crim. 257Craft v. State (1909)
1. —Murder—Adequate Cause — Charge of Court — Provocation. Where the statute names the adequate cause, the charge of the court, in submitting the issue of manslaughter, should inform the jury directly that, if the assault by the party injured upon the accused created pain, and thereby sudden passion was engendered which rendered him incapable of cool reflection, the accused would be guilty of no higher offence than manslaughter. 2. —Same—Case Stated — Statutory Definition of Adequate Cause. Where, upon trial of murder, there was evidence that, when the defendant was getting on his horse, the deceased seized the bridle rein of defendant’s horse, and gave a jerk which threw the defendant against the pommel of his saddle and hurt his stomach, causing him pain and a bruise, the court erred in not submitting in his charge the statutory definition of adequate cause, as contained in the defendant’s requested instruction, the court, having failed to give such a charge in his general instructions. 3. —Provocation—Charge of Court. Where, upon trial for murder, there was no evidence with reference to provocation by some other person than the deceased, the court should not have charged as to such provocation. 4. —Same—Evidence—Dying Declarations. Upon trial for murder, there was no error to admit in evidence the following dying declarations of the deceased: “Son killed me for nothing; I could not run out of it, and I couldn’t beg out of it.” Following Lockhart v. State, 53 Texas Grim. Rep., 589. 5. —Same—Argument of Counsel — Charge of Court. Where, upon trial for murder, State’s counsel remarked in his argument that defendant had objected to the introduction of certain testimony which the court had rejected on defendant’s exception, because defendant did not want the truth to come out, and the court, in a written instruction, told the jury to disregard such remarks of counsel, and such testimony had, in fact, never been introduced, there was no error.
57 Tex. Crim. 262Warren v. State (1909)
The opinion states the case.
57 Tex. Crim. 264Martin v. State (1909)
The opinion states the case.
57 Tex. Crim. 267Bryant v. State (1909)
Embezzlement — Bailment—Insufficiency of the Evidence. Where, upon trial for embezzlement of a horse, the evidence showed that the defendant received a horse from prosecutor and placed him in a pasture, and that he was either to return him or pay for him; that the horse remained in the pasture for some time to recuperate in flesh and strength until some time after he was recovered by the prosecutor, etc., the same was insuiScient to sustain a conviction.
57 Tex. Crim. 269Brown v. State (1909)
The opinion states the case.
57 Tex. Crim. 276Coots v. State (1909)
Gaming — Betting. Where, upon trial for gaming, the evidence showed that defendant bet in a game of cards, the conviction is sustained.
57 Tex. Crim. 277Wesley v. State (1909)
The gravamen of the information charged that H. did then and there unlawfully sell to one W. intoxicating liquor after the qualified voters of said Howard County had determined at an election held in accordance with the laws of said State that the sale of intoxicating liquors should be prohibited in said county, and the Commissioners Court of said county had passed an order to that effect, which order had been duly published in accordance with law, against the peace and…
57 Tex. Crim. 279Durham v. State (1909)
The opinion states the case.
57 Tex. Crim. 280Griffin v. State (1909)
The opinion states the case.
57 Tex. Crim. 284Buckley v. State (1909)
The opinion states the case.
57 Tex. Crim. 285Richardson v. State (1909)
The opinion states the case.
57 Tex. Crim. 287Eckermann v. State (1909)
1. —Rape—Constitutional law — Venue. The act authorizing indictments in other counties than the one in which the alleged rape is committed is constitutional. Following Dies v. State, 56 Texas Grim. Rep., 32. 2. —Same—Bill of Exceptions — Record in Civil Case — Evidence. Upon trial for rape there was no error in excluding the record in a civil case instituted upon the alleged intercourse between defendant and the prosecutrix; besides, the bill of exceptions did not show the object or purpose of such testimony. 3. —Charge of Court — Other Acts of Intercourse — limitation. Where, upon trial for rape, there were in evidence several acts of carnal intercourse between defendant and prosecutrix, all of which were barred except one, upon which latter the State relied for a conviction, there was no error in refusing a requested charge asking for an acquittal on the acts of intercourse that were barred by limitation. 4. —Same—Charge of Court — Charge as a Whole. Where, upon trial for rape, the charge of the court, taken as a whole, was not open to the criticism that it was on the weight of the evidence, there was no error. 5. —Same—Practice upon Appeal. Where, upon appeal from a conviction of rape, there appeared in the record no bill of exceptions to the evidence objected to on trial, and no objections were raised in the motion for new trial as to the charge of court, the matters could not be reviewed.
57 Tex. Crim. 290Gipson v. State (1909)
The opinion states the case.
57 Tex. Crim. 291Benjamin v. State (1909)
Carrying Pistol — Charge of Court — Limiting Testimony. Upon trial for unlawfully carrying a pistol, where the defendant claimed that the alleged pistol was not a firearm in the terms of the statutes, and the State, upon cross-examination of defendant’s witness as to a certain difficulty in which defendant used the pistol, drew out facts showing that defendant had stated that his pistol had missed fire for the first time, etc., and the purpose of this testimony was to impeach said defendant’s witness, who denied that the defendant had made such statement, the same should have been properly limited in the court’s charge, as requested. Following Maples v. State, 56 Texas Grim. Rep., 99, and other cases.
57 Tex. Crim. 293Bader v. State (1909)
The opinion states the case.
57 Tex. Crim. 297Speer v. State (1909)
The State’s testimony showed that the defendant was seen in the act of copulation with a jennet; that the witness was about fourteen feet from defendant at the time; that it was bright moonlight and there was nothing to obstruct the view of the State’s witness; that when the defendant discovered the witness he ran away but was afterwards overtaken and arrested. The opinion states the case.
57 Tex. Crim. 301Campbell v. State (1909)
1. —Seduction—Statement of Pacts — Piling—Practice on Appeal. Where, upon appeal from a conviction of seduction, it appeared that the clerk in the court below, through inadvertence, had failed to place his file mark upon the original statement of facts, and that the same had been filed within time, the same will be considered. 2. —Same—Charge of Court — Accomplice’s Testimony. Where, upon trial for seduction, the court in his charge on accomplice’s testimony, to wit, that of the alleged seduced female, failed to charge the jury that such testimony must be found by the jury to be true, etc., the same was reversible error. Following Fruger v. State, 56 Texas Grim. Rep., 393, and other cases. 3. —Same—Perm of Court’s Charge on Accomplice’s Testimony. See the opinion of the court for a form of a court’s charge on accomplice’s testimony.
57 Tex. Crim. 303Yell v. State (1909)
Burglary — Charge of Court — Sufficiency of the Evidence — Motion for New Trial. Where the complaint to the court’s charge alleged that the court erred, to the defendant’s injury, without setting forth the supposed defect, and the testimony was sufficient to sustain the conviction, there was no reversible error.
57 Tex. Crim. 304Cabral v. State (1909)
The opinion states the case.
57 Tex. Crim. 305Lindley v. State (1909)
1. —local Option — Plea of Former Conviction. Upon appeal from a conviction of a violation of the local option law, where it appeared that there was no special plea contained in the record, this matter could not be considered under the objection that the court failed to submit defendant’s special instructions thereon. 2. —Same—Final Judgment — Appeal Pending. Where, upon appeal from a conviction of a violation of the local option law, the record did not show that the judgment of conviction pleaded in bar was a final judgment, or whether an appeal had been taken therein or a motion" for a new trial therein granted, the complaint that the court below failed to submit said plea to the jury, as requested, could not be considered. 3. —Same—Submission of Plea, When. Where no evidence has been introduced in support of a plea of former conviction, or where the judgment relied on in bar is no defense, the court is not required to submit such plea to the jury.
57 Tex. Crim. 307Nobles v. State (1909)
The opinion states the case.
57 Tex. Crim. 308Johnson v. State (1909)
The opinion states the case.
57 Tex. Crim. 312Bales v. State (1909)
Disturbing Inmates of Private Residence — Indictment—Motion in Arrest of Judgment. ■ Where, in a prosecution for disturbing the inmates of a private residence, the indictment failed to allege that the occupant of the residence owned the same, or occupied the same as a residence, and failed to allege defendant went to said residence for the purpose of disturbing the inmates of said residence, the same was bad on motion in arrest of judgment.
57 Tex. Crim. 313Haney v. State (1909)
Burglary — Sufficiency of the Evidence. Where, upon an appeal from a conviction of burglary, the record contained no bills of exception to the ruling of the court below, and the evidence was sufficient to sustain the conviction, the same will not be disturbed.
57 Tex. Crim. 314Callaghan v. State (1909)
The opinion states the case.
57 Tex. Crim. 316Cameron v. State (1909)
The opinion states the case.
57 Tex. Crim. 319Mason v. State (1909)
1. —Perjury—Continuance—Diligence. Where, upon trial for perjury, the defendant made application to take the deposition of his wife, who, he alleged, resided beyond the limits of the State, on the day following his arrest, and there was not sufficient time for a return of such process, and the testimony was material, the continuance should have been granted. 2. —Same—Charge of Court — Inadvertence—Mistake. Where, upon trial for perjury, it appeared from the evidence that the defendant probably made the statement upon which perjury was based inadvertently, the court should have charged, as requested, that under article 202, Penal Code, if the sworn statement by defendant was made through inadvertence or under agitation or by mistake, defendant would not be guilty of perjury. Following Brookin v. State, 27 Texas Grim App., 701.
57 Tex. Crim. 321Stone v. State (1909)
The opinion states the case.
57 Tex. Crim. 323Beard v. State (1909)
1. —Murder—Accomplice—Conspiracy—Principals. Where, upon trial for murder, the defendant was charged as an accomplice by reason of advising the killing and agreeing to avert suspicion from his principals, there was no error in admitting testimony to show that the parties with whom defendant agreed were principals and properly limiting this testimony to said question. 2. —Same—Evidence—Principals. Upon trial for murder, where evidence was introduced with reference to the principals in the crime, the defendant being on trial as an accomplice, such testimony should have been properly limited to the question of principal, so that it could not be appropriated directly against the defendant. 3. —Same—Charge of Court — Singling out Facts — Circumstantial Evidence. Where, upon trial for murder, defendant was tried as an accomplice by agreeing to make certain tracks at the scene of the homicide to avert suspicion from his principals, it was reversible error in the court’s charge to assume the fact that there was an agreement between the defendant and his principals to make such tracks, and that the testimony on this point was circumstantial. This was a charge on the weight of the evidence. A charge on circumstantial evidence must cover all the facts, and not one particular fact. Following Parnell v. State, 51 Texas Grim. Rep., 620, and other cases.
57 Tex. Crim. 328Matthews v. State (1909)
1. —Local Option — Charge of Court — Election by State — Limitation. Where, upon trial of a violation of the local option law, the evidence showed several different sales, and no motion was made compelling the State to elect upon which transaction the conviction should be sought, there was no reversible error in the court’s charge that if-the defendant, at any time during the year, and before the date charged in the information, was guilty of such unlawful sale of intoxicating liquors, to convict him. In misdemeanor cases a party can be convicted for a violation of the law if it occurred within two years prior to the return of the indictment. 2. —Same—Charge of Court — Defendant as Witness. Upon trial of violation of the local option law there was no error in the court’s charge that the jury could not use the fact’against defendant that he failed to testify in 1ns own behalf. 3. —Same—Constitutional Law — Terms of County Court. Where, upon trial of a violation of the local option law, it was shown that the Commissioners Court had provided certain terms of the County Court, at one of which defendant was convicted, he could not interpose an objection that there was not a term of the County Court held once every month. Following Ex parte Cole, 51 Texas Crim. Rep., 166, and other cases. 4. —Same—Sufficiency of the Evidence — Venue—Law in Force. See opinion for facts showing venue and sufficient evidence to sustain the conviction; also that the court charged that the local option law was in force.
57 Tex. Crim. 331Irvin v. State (1909)
The opinion states the case.
57 Tex. Crim. 332Mancha v. State (1909)
Carrying Pistol — Postponement—Practice in County Court — Statutes Construed — Impeachment—Discretion of Court. Upon trial of unlawfully carrying arms there was no error in the court’s refusal to postpone the case, after the evidence was closed, to permit the defendant to issue process for additional witnesses and await their presence, to prove the general reputation of State’s witnesses for truth and veracity to be bad, no abuse of the court’s discretion, and no injury to defendant’s rights having been shown, or that the due administration of justice had been impeded.
57 Tex. Crim. 336Wilson v. State (1909)
The opinion states the case.
57 Tex. Crim. 337Matthews v. State (1909)
Tried below before the Hon. j. W. Hassell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $85 and forty days confinement in the county jail.
57 Tex. Crim. 339Nelson v. State (1909)
Assault with Intent to Murder — Sufficiency of the Evidence. See opinion for facts held to be sufficient to sustain a conviction for assault with intent to murder.
57 Tex. Crim. 341Jackson v. State (1909)
1. —local Option — Sale—Contract—Requested Charge. Upon trial for a violation of the local option law there was no error in the court’s refusal of a requested instruction that the alleged sale must be based upon a contract, as a sale made by implication or the passage of the property with intent to sell is sufficient 2. —Same—Evidence—Bill of Exceptions. Where, upon appeal from a conviction of a violation of the local option law, there appeared no bill of exceptions in the record to the evidence complained of, there was no error. 3. —Same—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence was sufficient to sustain a conviction, there was no error.
57 Tex. Crim. 342James v. State (1909)
1. — Theft—Continuance—Want of Diligence — Insanity. Where, upon trial for theft, defendant’s application for a continuance did not show proper diligence, and it appeared therefrom that the testimony sought with reference to the defendant’s insanity was probably not true, there was no error in overruling the same. 2. — Same—Charge of Court — Definition of Offense. Where, upon trial for theft, the court’s charge in defining the offense was correct when taken together with other portions of the charge, there was no reversible error.
57 Tex. Crim. 346Lindley v. State (1909)
The opinion states the case.
57 Tex. Crim. 347Johnson v. State (1909)
The opinion states the case.
57 Tex. Crim. 350Pickett v. State (1909)
The opinion states the case.
57 Tex. Crim. 352Woodland v. State (1909)
1. —Aggravated Assault — Alibi. Where, upon trial for aggravated assault, the evidence did not raise the issue of an alibi, there was no error in the court’s failure to charge thereon. 2. —Same—Jury and Jury Law. Where, upon appeal from a conviction of aggravated assault, appellant complained that the foreman of the jury was prejudiced against him, and it appeared that these matters were not inquired into before the juror was taken upon the jury, there was no error. 3. —Same—Newly Discovered Evidence — Impeaching Testimony. Where, upon appeal from a conviction of an aggravated assault, the alleged newly-discovered testimony was of an impeaching character, touching the general reputation of the character of prosecutrix for virtue and chastity, and it appeared that such testimony could have been discovered by due diligence, there was no error. 4. —Same—Charge of Court — Punishment. Where, upon trial for aggravated assault, the court, in defining the punishment for aggravated assault, misstated the law as to the minimum punishment, but correctly applied the law to the facts, there was no error. 5. —Same—Sufficiency of the Evidence. Where' the evidence supported the conviction of aggravated assault the same will not be disturbed.
57 Tex. Crim. 354Wallace v. State (1909)
Burglary — Evidence—Theft. Upon trial for burglary, testimony that the defendant had been acquitted of the theft of the alleged goods was not admissible. Following Smith v. State, 22 Texas Crim. App., 350, and other cases.
57 Tex. Crim. 355Kemper v. State (1909)
1. —Assault to Murder — Misconduct of Jury — Statement of Facts. Where a statement of facts touching matters as to the misconduct of the jury is not properly authenticated, the same cannot be considered on appeal. 2. —Same—Adjournment of Court — Order to File Statement of Facts. Where, upon appeal from a conviction of assault to murder, the statement'of facts was not filed within the time provided by law the same cannot be considered, notwithstanding the agreement of counsel that the same might be considered as filed within time. 3. —Same—Stenographer’s Notes — Questions and Answers. A statement of facts taken on the trial of the ease, wholly made up of questions and answers, cannot be considered on appeal. Following Essary v. State, 53 Texas Grim. Rep., 596, and other cases. 4. —Same—Misconduct of Jury. Where, upon appeal of a conviction of assault to murder, it appeared from the record that the court below heard testimony pro and con as to the misconduct of the jury, the same will not be disturbed on appeal, even had the statement of facts been properly made up and filed. Following Fox v. State, 53 Texas Grim. Rep., 150.
57 Tex. Crim. 356Cleveland v. State (1909)
The State’s testimony showed that the prosecutor purchased the alleged mules from defendant’s brother, and that the defendant was present at the time; that this transaction took place in Andrews County where the prosecutor lived, and that he placed the mules in a pasture nearby, after keeping them a while where he was at work; that some two or three months thereafter he missed the mules, and that afterwards one of the mules was recovered in Tom Green County and the other at…
57 Tex. Crim. 359Deckard v. State (1909)
1. —Murder—Jury and Jury law — Idem Sonans. Where the return of the officer on the writ for a special venire was for Rowland Smith, when he should have summoned and made return for Roland Smith, it was clearly idem sonans, and there was no error. 2. —Same—Special Venire. Where a juror whose name had been misspelled in the return of the officer, on the writ of special venire, was not selected on the jury, there was no error. 3. —Same—Evidence—Moral Turpitude of Witness. Where, upon trial for murder, the defendant objected to the action of State’s counsel in showing orally, by one of defendant’s witnesses, that the latter had been convicted of theft of a hog, instead of introducing the judgment and sentence of such conviction, as required; yet where' on appeal the appellant’s bill of exceptions did not show that the testimony of his said witness was material to his defense, there was no error. 4. —Same—Evidence—Moral Turpitude of Witness. . Where, upon appeal from a conviction of manslaughter, the record disclosed that the witness whose credibility defendant sought to attack for having served on the poor farm had not been arrested within the last thirty years, there was no error; besides, the bill of exceptions did not show what the witness would have answered in reference to said confinement On the poor farm. 5. —Same—Evidence. On trial for murder there was no error in permitting State’s counsel to ask one of his witnesses whether another witness in the case, who was present at the killing, had a pistol. 6. —Same—Evidence. Upon trial for murder there was no error in permitting State’s counsel to ask a State’s witness where deceased kept his pistol before coming to the county of the homicide, and that it was at witness’ house. 7. —Same—Evidence—Bill of Exceptions. Where, upon appeal from a conviction of manslaughter, the bill of exceptions did not show what the answer of the witness was to the question as to how much of his time for the past two years he had spent in jail, the same could not be reviewed. [Rehearing denied December 32, 1909. — Reporter.]
57 Tex. Crim. 363King v. State (1909)
1. —Murder—Change of Venue — Statement of Facts. Upon appeal from a conviction of murder, where it appeared from the record that the testimony taken in support of an application for change of venue was not filed and approved- during the term of the court, the same could not be considered. 2. —Same—Practice on Appeal. Where, upon appeal from a conviction of murder, it appeared that the statement of facts consisted simply of a reproduction of the stenographer’s notes, in the shape of questions and answers, the same cannot be considered. Following Hargrave v. State, 53 Texas Grim. Rep., 147, and other cases. 3. —Same—Charge of Court — Reasonable Doubt — Burden of Proof. Where, upon trial for murder, the court instructed the jury that, in all criminal cases, the burden of proof is on the State; that the defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case the jury had a reasonable doubt as to defendant’s guilt they will acquit him, and say by their verdict, “not guilty,” the same was sufficient, and there was no error in refusing requested charges elucidating the meaning of the statute. 4. —Same—Charge of Court — Accomplice, Definition of. Where, upon trial for murder, the evidence raised the issue of an accomplice, and the court charged the jury that they could not convict the defendant upon the testimony alone of a certain State’s witness (naming him) unless they first believed that his testimony was true, and connected the defendant with the offense charged, and that then they could not convict upon said testimony unless they further believed that there was other testimony in the case corroborative of the testimony of. said witness, and connected the defendant with the offense charged, and that the corroboration was not sufficient if it merely showed the commission of the offense charged, such charge was equivalent to instructing the jury that the witness was an accomplice, and it was not necessary to define that term. 5. —Same—Charge of Court — Means Used. Where, upon trial for murder,, the court’s charge, taken as a whole, applied the law to the facts of the case and to the allegations in the indictment with reference to the means used by the defendant in effecting the death of the deceased, there was no reversible error. 6. —Same—Charge of Court — Murder in the Second Degree. Where, upon trial for murder, the evidence did not raise the issue of murder in the second degree, there was no error in the court’s failure to charge thereon. 7. —Same—Evidence—Moral Turpitude of Witness — Judgment. Upon trial for murder there was no error in the court’s action in sustaining an objection to an attempt on the part of the defense to disqualify a State’s witness, on the ground that he had been convicted of a felony, without offering in evidence such judgment of conviction. 8. —Same—Sufficiency of the Evidence. See opinion for facts held sufficient to support a conviction for murder in the first degree, assessing the punishment at imprisonment in the penitentiary for life. [Rehearing denied December 32, 1909. — Reporter.]
57 Tex. Crim. 363Caudle v. State (1909)
The opinion states the case.
57 Tex. Crim. 372Ross v. State (1909)
The opinion states the case.
57 Tex. Crim. 375Platinburg v. State (1909)
The principal witness for the State was an accomplice, who testified that he stood watch while the defendant and others burglarized the store and took some goods therefrom; that this was at night and that they entered the building by force, and that he helped carry away the goods, some of which were afterwards recovered.
57 Tex. Crim. 377Ex Parte Cassens (1909)
From Williamson County. Original application of habeas corpus asking release from a commitment on a capias pro fine from the County Court to enforce a fine of $25 assessed, against him in the County Court for selling intoxicating liquors to a minor.
57 Tex. Crim. 384Munger v. State (1909)
The opinion states the case.
57 Tex. Crim. 389Betts v. State (1909)
1. — Murder—Name of Party Injured — Variance. Where, upon trial for murder, the indictment charged the name of the injured party to be Rozella, and the evidence shoAved that she Avas usually called Eva, but that her name Avas Eva Rozella, and that she Avas sometimes called Rozella, there aveas no variance. 2. —Same—Election by State — Charge of Court. Where the indictment charged defendant with murder in one count, and in another with conspiracy to kill, and the court submitted to the jury the issue of homicide alone, this constituted an election. Following Parks v. State, 29 Texas Grim. App., 597. 3. —Same—Evidence—Animus of Defendant. Upon trial for murder by defendant of his infant child by means of whipping, striking, smothering and strangling, etc., there was no error to admit testimony by the State that defendant whipped deceased severely at times with a certain belt which he wore around his waist, and which had a buckle at one end of it, to show systematic cruel treatment, malice and ill-will on part of the defendant towards his child. Following Hall v. State, 31 Texas Grim. Rep., 565. 4. —Same—Charge of Court — Weight of Evidence — Singling out Facts. Where, upon trial for murder, the evidence showed, as charged in the indictment, that the deceased child came to its death by strangulation, smothering or asphyxiation, or possibly by a blow on its head, and there was no evidence showing that it came to its death by means of whipping, it was reversible error in the court’s charge to predicate the death of the child on the fact that defendant whipped his child with his waist belt. 5. —Same—Charge of Court — Means Used. Upon trial for murder, where the court predicated his charge on the fact that defendant whipped his child to death with his waist belt, he should have submitted, if such fact was in evidence, article 717, Penal Code, as such waist belt was not itself a deadly weapon, and it could not be presumed that defendant designed the death of his child by the use of such means. 6. —Same—Charge of Court — Presence of Defendant. Where, upon trial for murder, it was left in doubt whether defendant strangled his child, or caused its death by means of a blow causing a blood clot on its brain, the court should have instructed as requested, that, if defendant was not present at the time of the child’s death, to acquit him, inasmuch that if the child’s death was caused by strangulation he must necessarily have been present. 7. —Same—Charge of Court — Cause of Death. Where, upon trial for murder, there was evidence that the death of deceased was caused by means of a blow causing a blood clot on the brain, and also that the deceased may have fallen out of bed and received such injury, the court’s charge should have submitted the theory that, if such injury on the head caused the death of the deceased by other means than at the hands of the defendant, to acquit him.
57 Tex. Crim. 394Carson v. State (1909)
The opinion states the case.
57 Tex. Crim. 399Huffman v. State (1909)
The opinion states the case.
57 Tex. Crim. 400Hasley v. State (1909)
The opinion states the case.
57 Tex. Crim. 401Hardin v. State (1909)
The following statement from appellant’s brief is substantially correct: The homicide occurred in the town of Itasca in a street running north and south, and in front of a barber shop occupied by Will Sears. The evidence shows that the appellant and all the parties present at the time of the homicide were negroes, and that the killing occurred between midnight and one in the morning. State’s witnesses testified that there were about seventy-five or one hundred people present, and that the killing occurred very suddenly, and that the whole time from the beginning of the difficulty until the mortal stab was inflicted covered but a minute or two, or perhaps less time. Appellant was a boy only about 19 years of age at the time of the homicide. He lived on a farm three or four miles northwest of Itasca and was engaged in farm labor. His mother and his brothers, Walter Hardin and Dave Hardin, lived in the same neighborhood and were engaged in the same kind of work. Maje Wright, another negro boy, lived in the same community and was a friend of appellant, and he and Walter Hardin were present at the time of the killing. The deceased was a large negro weighing about 180 pounds. He lived three or four miles east of Itasca on the farm of one Tom Clayton. On the evening of the homicide, the deceased took out of the express office in Itasca a gallon of whisky, and the evidence shows that he was drinking liquor late in the evening on the night of the killing. It was not claimed that the appellant had any ill-will or grudge against the deceased prior to the homicide. In fact they were not even acquainted with each' other, but lived seven or eight miles apart and in opposite directions from Itasca. On the night of the homicide, the appellant accompanied one of the Johnson girls to Itasca. Walter Hardin and Maje Wright had also gone there. The killing happened in a street running north and south and in front of the barber shop. Will Johnson was picking a guitar while another negro was dancing on the front gallery of the shop. There was a light in the shop, but no window in the east end of it next to the street. The crowd of negroes composed of men, women and children had increased in numbers, until there-were seventy-five or one hundred standing around in the street and around the gallery and shop, listening to the music and looking at the dancing. The State contended upon the trial of this cause that the appellant stabbed and killed deceased. The appellant asserted and introduced -evidence' to show that Walter Hardin stabbed and killed deceased. And Walter Hardin, as a witness, upon the stand, admitted and swore that he did kill the deceased.
57 Tex. Crim. 408Thompson v. State (1909)
After the State’s witness Jim Searcy had testified-that the defendant had not sold him any whisky, etc., the judge of the court took the witness in hand and rigidly examined him before the jury, over the objection of defendant, for some time, asking him leading questions; and thereupon retired the jury and again took State’s witness in hand and asked him whether he was trying to change his testimony or whether he couldn’t remember who got his money, whereupon witness…
57 Tex. Crim. 410Collins v. State (1909)
The opinion states the case.
57 Tex. Crim. 411Brent v. State (1909)
The opinion states the case.
57 Tex. Crim. 411Ex Parte Knapp (1909)
The opinion states the case.
57 Tex. Crim. 414Gent v. State (1909)
1. —Rape—Evidence—Flight—Arrest. Where, upon trial for rape, there was evidence with reference to the search made for the defendant by the officers before he was arrested, and also that defendant went under different names, there was no error. It is always permissible to prove flight. 2. —Same—Evidence—Flight—Limiting Testimony. Upon trial for rape, where the State introduced in evidence the complaint against defendant, the capias and the bail bond, and afterwards withdrew same from the jury, there was no error; besides, these papers were admissible in evidence to show flight if properly limited to that purpose. 3. —Same—Argument of Counsel. Where the argument of State’s counsel was objected to, and the court instructed the jury not to consider same, there was no error. 4. —Same—Wife of Defendant. Where, upon trial for rape, it appeared from the evidence that defendant had a lawful wife at the time he committed the offense, the contention that there was no evidence that the prosecuting witness was not the wife of the defendant was untenable.
57 Tex. Crim. 416Snelling v. State (1909)
1. —Theft from the Person — Charge of Court — Accomplice’s Testimony. Upon trial of theft from the person, where the court’s charge upon accomplice’s testimony was contrary to the precedents laid down by the Uourt of Criminal Appeals, the ease must be reversed. 2. —Same—Charge of Court — Accomplice—Assuming Pacts. Where, upon trial of theft from the person, the evidence was not clear as to whether a State’s witness was an accomplice, the court should have submitted this issue to the jury. It is only where the evidence is clear in such cases that .the court may assume that a witness was an accomplice. 3. —Same—Evidence—Declaration of Third Parties — Conspiracy. Upon trial for theft from the person, it was error to admit in evidence the conversation between defendant and a-third party as to paying the latter some money, some time after it was shown that, if any conspiracy existed between the two to commit the theft and divide the spoils, it had long since ceased. 4. —Same—Description of Money — Variance.' Upon trial of theft from the person, where the money described in the indictment alleged that it was good and lawful money of the United States, and the evidence simply showed ten and five-dollar bills, without showing the character of same, the variance was fatal.
57 Tex. Crim. 420Sedgwick v. State (1909)
1. —Burglary—Former Jeopardy — Dismissal—Private Residence — Specific Offense. Where, upon trial for burglary of a private residence, the defendant interposed a plea of former jeopardy, it appeared from the record on appeal that the defendant in the former case had not entered a plea of guilty or not guilty; that the offense charged against him in the first case was for burglary under the general burglary statute, and was dismissed by the State because of variance between the evidence and the allegations in the indictment, there was no error in the court’s ruling sustaining an exception to such plea, as under article 839a, Penal Code, the burglary of a private residence is a specific offense, separate and distinct from burglary as defined in articles 838 and 839, Penal Code. 2. —Same—Indictment—Occupancy of Private Residence. In a prosecution of burglary of a private residence, where the indictment charged that the burglarized house was then and there the private residence of the said W. S., and the said W. S. was then and there using said house as a private residence, it was sufficiently alleged that the said house was occupied by the said W. S. as a private residence. Following Knuckles v. State, 55 Texas Grim. Rep., 6. 3. —Same—Insufficiency of the Evidence — Rape. Where, in a prosecution of burglary of a private residence, one of the counts in the indictment alleged the burglarious entry with the intent of committing rape, and the evidence showed that the defendant, at night, appeared at the window of the alleged house, near the bed of the alleged injured female, then occupied by her, and that when discovered by her was partly inside the house; that she screamed, caught hold of him, and pushed him out, and then raised the alarm, and that defendant fled, but was afterwards found, and denied the charge, etc., the same is insufficient to convict on the question of intent to rape. Ramsey, Judge, dissenting.
57 Tex. Crim. 423Emery v. State (1909)
1. —Perjury—Defendant’s Absence — Predicate. Where, upon trial for perjury, it appeared from the record on appeal that the testimony upon which the perjury is based was given by the defendant during a trial for rape, at a time when the defendant in said rape case had absented himself from the court, and was not present during any stage of the further progress of said rape trial, such testimony could not be used as a basis for perjury, even if it were false. 2. —Same—Presence of Defendant — Jurisdiction. The presence of the accused in court and before the jury during the trial of his case is a jurisdictional question, and such presence is absolutely necessary to the validity of the trial; and where a witness testified in the absence of the accused, in a felony case, the court is without authority, and such testimony cannot be the basis for a prosecution of perjury, as such trial was a nullity.
57 Tex. Crim. 427Cox v. State (1909)
The opinion states the case.
57 Tex. Crim. 432Holt v. State (1909)
The opinion states the case.
57 Tex. Crim. 435Maloney v. State (1909)
The opinion states the case.
57 Tex. Crim. 437Ex Parte Thompson (1909)
From Howard County. Original application for writ of habeas corpus asking the release of relator under a sentence to the penitentiary under a charge of perjury.
57 Tex. Crim. 439Trimble v. State (1909)
1, — Assault to Murder — Evidence—Other Transaction. Where, upon trial for assault with intent to murder, the evidence showed the killing of another person during the same transaction at which defendant shot at the injured party, for which he was indicted, there was no error in admitting testimony of the killing of said third party, as the same was part and parcel of the same transaction. 3. — Same—Charge of Court — Intent to Alarm — Trespass. Upon trial for assault to murder, where the evidence showed that the alleged injured party and others went upon the premises of the defendant at night to frighten him, and that defendant fired to scare them away, but killed one of the parties and wounded another, for which latter act he was indicted, the court erred in charging the jury that if defendant unlawfully, and with intent to alarm, shot at the injured party, and accidentally or unintentionally shot him, to find the defendant guilty' of simple assault; to constitute an assault by alarming a person the thing done must first be unlawful, and if the defendant simply intended to scare away the trespassers, without injuring them, he could not be guilty of unlawful intent to alarm.
57 Tex. Crim. 442Cheatham v. State (1909)
The opinion states the case.
57 Tex. Crim. 449Barnes v. State (1909)
The State contended that either the defendant intended to kill Jonas Waterhouse, and in shooting at him killed Henry Polk, a bystander, and that in that event he would be guilty of murder in the second degree, or that he intended to kill both Waterhouse and Polk, and was guilty of murder in the first or second degree.
57 Tex. Crim. 452Thomas v. State (1909)
1. —Murder—Charge of Court — Express Malice. Where, upon trial for murder, the court correctly defined express malice, and instructed the jury that, if the defendant killed the deceased with express malice, to find him guilty of murder in the first degree, the facts justifying such a charge, there was no error. 2. —Same—Charge of Court — Intent to Kill — Means Used — Presumption. Upon trial for murder, where the evidence showed that defendant killed deceased by striking him with a baseball bat, it was reversible error to charge the jury that every one is presumed to intend whatever would be the reasonable and probable result of his own act and the means used by him. 3. —Same—Charge of Court — Deadly Weapon. Where, upon trial for murder, the evidence showed that the instrument used was a deadly weapon, the court should not have charged the law under article 717, Code of Criminal Procedure; this should only be given where the evidence is not clear as to whether or not the instrument used was a deadly weapon. 4. —Same—Murder in Second Degree. Where, upon trial for murder, the evidence did not show any antecedent malice or former grudges, but that the difficulty arose suddenly, and the defendant struck the blow in the heat of passion, the homicide could not be above murder in the second degree.
57 Tex. Crim. 455Smith v. State (1909)
The opinion states the case.
57 Tex. Crim. 462Robbins v. State (1909)
Occupation Tax — Engaging in Business — Occupation. Where, upon trial of a violation of failing to pay occupation tax on a flying-jenny, the evidence showed that the defendant ran said flying-jenny for hire and profit, as a means of livelihood and gain; that he had provided himself with the equipment necessary to conduct the business, and to some extent indicated a definite purpose to follow the business, he was subject to the occupation tax, and there was no error.
57 Tex. Crim. 464Lafrentz v. State (1909)
1. —Local Option — Charge of Court — Grouping Pacts. Where, upon trial for a violation of the local option law, the court’s charge attempted a recitation of the entire testimony, and instructed the jury, if they found certain facts to exist to convict the defendant, and did not group the facts correctly, the same was reversible error. 2. —Same—Charge of Court — Weight of Evidence. Where, upon trial for a violation of the local option law, the court instructed the jury to convict the defendant if his intent or the effect of his acts constituted an evasion of the local option law, the same was reversible error. Following Vanarsdale v. State, 35 Texas Grim. Rep., 587; 34 S. W. Rep., 931.
57 Tex. Crim. 467Daniel v. State (1909)
Local Option — Exchange—Sale—Charge of Court. Where, upon trial for a violation of the local option law, the evidence showed that the defendant delivered to the State’s witness a bottle of whisky, and at the same time received from said witness the money for the purpose of ordering another bottle of whisky to replace the bottle so delivered, this constituted a sale under the law, and there was no error in the court so instructing the jury, and refusing a requested charge that such facts would not constitute a salé. Following Coleman v. State, 53 Texas Grim. Rep., 578, and other cases.
57 Tex. Crim. 471Gardner v. State (1909)
1. —Aggravated Assault — Charge of Court — Self-Defense—Mutual Combat. Where, upon trial for aggravated assault, the court’s charge assumed certain facts referred to which were not correctly set forth, and the effect of said charge was to deprive the defendant of the right of self-defense, without regard to such right based upon the law of actual or apparent danger, and further assumed that there was an agreement between the defendant and the party injured for mutual combat, the same was reversible error. 2. —Same—Charge of Court — Assuming Facts. Upon trial for aggravated assault, where the charge of the court had the effect to cut defendant off from his right of self-defense, without reference to his intent or purpose in using certain language and doing certain acts attributed to him, the same was reversible error. Following Young v. State, 53 Texas Grim. Rep., 416.
57 Tex. Crim. 474Shaw v. State (1909)
The opinion states the case.
57 Tex. Crim. 476Crane v. State (1909)
The opinion states the case.
57 Tex. Crim. 480Lindley v. State (1909)
The opinion states the case.
57 Tex. Crim. 484York v. State (1909)
The opinion states the case.
57 Tex. Crim. 486Harville v. State (1909)
Incest — Argument of Counsel — Allusion to Defendant’s Failure to Testify. Where, upon trial for incest, the State’s counsel commented on the fact that the woman with whom defendant was charged of having the incestuous intercourse had not been introduced as a witness by defendant, the record showing that she was an accomplice, and was jointly charged with the defendant in the commission of the offense, and the court failing to instruct the jury not to consider said argument, the same was reversible error; and the fact that the defendant’s counsel commented on the illegal statement of State’s counsel did not cure the error. Eamsey, Judge, dissenting.
57 Tex. Crim. 488Johnson v. State (1909)
1. —Burglary—Evidence—Invoice—Identification. Where, upon trial for burglary, the question of the identification of the alleged stolen goods was an issue, and the State sought by a process of exclusion to find out what goods were unaccounted for and probably stolen, partly by the original invoice of said goods, and there was no showing that this invoice in writing was inaccessible or lost, it was reversible error to permit the State to prove up said invoice orally over defendant’s objection. Following Jacobs v. State, 42 Texas Grim. Rep., 353; 59 S. W. Rep., 1111, and other cases. 2. —Same—Evidence—Immaterial Testimony — Other Offenses. Upon trial for burglary with intent to commit theft, where proof had been introduced of certain drygoods alleged to be stolen from the alleged burglarized house, it was reversible error to admit testimony that some two weeks 'after the alleged possession of said stolen property was discovered that the defendant had been seen with a large grip which would hold several suits of clothes, and that, upon being asked what he had in the grip, he replied that they were old clothes to have washed, defendant not having testified. Following Hill v. State, 44 Texas Grim. Rep., 603, and other cases.
57 Tex. Crim. 492Williams v. State (1909)
Assault to Murder — Sufficiency of the Evidence — Intent to Kill. Where, upon trial for assault with intent to murder, the evidence showed that the defendant prepared himself with rocks, and sought out the injured part;', and in the course of his attack on him said that he would kill him, and inflicted serious wounds upon said injured party, there was sufficient evidence of a specific intent to kill on the part of the defendant, and the judgment convicting him of assault with intent to murder was authorized by the evidence.
57 Tex. Crim. 497Skidmore v. State (1909)
1. —Incest—Other Acts of Intercourse. Where, upon trial for incest, the act of carnal intercourse relied upon for conviction by the State was made out by the State’s testimony as occurring in the month of December, it was reversible error to permit the State to introduce other acts of carnal intercourse occurring during the previous months of October and November. Following Clifton v. State, 46 Texas Crim. Rep., 18, and other cases. Overruling Burnett v. State, 32 Texas Crim. Rep., 86; Barrett v. State, 55 Texas Crim. Rep., 182. Ramsey, Judge, dissenting. 2. —Same—Evidence—Contradicting Testimony. Where, upon trial for incest, the State had been permitted to introduce testimony that the woman with whom the incest was alleged to have been committed had a child within nine months after she stated defendant had carnal intercourse with her the previous December, defendant had the legal right to introduce testimony to show that he was not the father of the child, and that other parties had carnal intercourse with prosecutrix about that time. 3. —Same—Evidence—Character of Prosecutrix. Upon trial for incest, testimony by the State as to the character or reputation of prosecutrix, for propriety of conduct, was inadmissible. 4. —Same—Evidence—Deeds—Secondary Evidence. Upon trial for incest, where the State sought to show that the defendant had left this State for a short while, and returned, and when he left conveyed his property, by written deed to his sister, and the State had made proper demand for the production of said deeds of conveyance, and the same were not produced, secondary evidence of said conveyance was admissible, and this although defendant gave an explanation of his leaving the State. 5. —Same—Argument of Counsel — Allusion to Defendant’s Failure to Testify. See opinion of court for admonition of counsel that any allusions to defendant’s failure to testify in all criminal cases must be strictly avoided.
57 Tex. Crim. 512Ex Parte Haubelt (1909)
From Harris County. Original proceedings under writ of habeas corpus asking release of relator from a judgment of contempt. The opinion states the case.
57 Tex. Crim. 518Warren v. State (1909)
1. — Perjury—Transcript—Jurisdiction—Harmless Error. While it was not necessary, on a trial for perjury, to introduce the transcript from the Justice’s Court to the County Court, in which defendant was alleged . to have sworn falsely in a misdemeanor trial, and all that was necessary was the introduction in evidence of the original complaint in such Justice’s court to show jurisdiction; yet where this testimony in the light of the conviction was harmless, there was no reversible error. 2 — Same—Misconduct of Jury. Where, after conviction of perjury, it clearly appeared by testimony, upon motion for new trial, that the jury had appropriated the previous convictions in the Justice’s and County Court of defendant for crap shooting, as a basis of conviction for perjury, and had thereby arrived at a verdict of guilty, the same was reversible error.
57 Tex. Crim. 520Ollre v. State (1909)
1. —Sunday Law — Construction of Statutes — Intoxicating Liquors. Section 20 of the Act of the Thirtieth Legislature, page 266, having been taken practically from a similar statute of the State of Missouri, which latter statute has received a judicial construction by the Supreme Court of that State, it must be presumed that such interpretation was intended to be carried into said Act when it was adopted by the Legislature of Texas. 2. —Same—Principal—Agency—Construction of Statutes. Section 20 of the Act of the Thirtieth Legislature, page 226, which provides that the liquor dealer himself shall be held liable for any sales by his agent in violation of such section, does not conclude the principal from showing want of authority on the part of said agent to make such sale, and that said sale was made in violation of the principal’s command or without his knowledge. Ramsey, Judge, dissenting. 3. —Same—Statutes Construed — Knowledge. Section 19 of the Act of the Thirtieth Legislature, page 266, providing that knowledge of the principal is necessary to convict him of a violation of any of the provisions of said section, must be construed together with section 20 of said Act, so that the two sections harmonize in their purpose and intent. 4. —Same—Violation of Sunday Law — Agent—Case Stated. Where, upon trial of a violation of the Sunday law by selling intoxicating liquors in violation of section 20 of the. Act of the Thirtieth Legislature, page 266, the defendant’s evidence showed that the person who sold said liquor had no authority to open defendant’s place of business to sell said liquor; that said person was not actizig as a bartender of the defendant; that said person, if he sold any such liquor on Sunday, did so without the consent or knowledge of the defendant; that he was expressly told not to sell any of said liquor; that the defendant simply left said person in charge of his premises during defendant’s absence, and that if any liquor was sold by said person it was done in defendant’s absence, without any authority. Held, that defendant was not criminally liable for the sale of such liquor on Sunday, as provided by said section. [Rehearing denied December 22, 1909. — Reporter.]
57 Tex. Crim. 545Davis v. State (1909)
The opinion states the case.
57 Tex. Crim. 551Ex Parte Morgan (1909)
From Cooke . County. Original .application for writ of habeas' corpus asking release from arrest for violating an injunction of the District Court restraining relator from keeping a .bawdy house. The opinion states the case.
57 Tex. Crim. 555Francis v. State (1909)
1. —Perjury—Continuance—Cumulative Testimony. Upon trial for perjury, where it appeared that the attendance of the absent witnesses could not be procured, and that their testimony was entirely cumulative, there was no error in overruling defendant’s motion for continuance. 2. —Same—Indictment—Materiality of Testimony. Where, upon trial for perjury, the indictment alleged that the testimony was material upon which the perjury was based, there was no error in not quashing same on this ground. 3. —Same—Indictment. Where, upon trial for perjury, the indictment alleged that the grand jury were investigating questions as to whether certain parties unlawfully carried arms, etc., to which the alleged false testimony related, there was no error in overruling a motion to quash on this ground. 4. —Same—Charge of Court — Immaterial Issues. Where, upon trial for perjury, the indictment alleged that defendant swore falsely as to not being present at the time and place that it is„alleged certain parties did some shooting, there was no error in the court’s refusal to submit a special charge involving other matters not pertinent to the issue, 5. — Same—Misconduct of Jury — Separation. Where, upon motion for new trial upon a conviction of perjury, the fagts as to the separation of the- jury were submitted pro and con to the court, and overruled, there was no error. [Behearing denied January 12, 1910. — Reporter.]
57 Tex. Crim. 557Goss v. State (1909)
1. —local Option — Search—Contemporaneous Transaction. Where, upon trial of a violation of the local option law, the State- introduced testimony that the search was made of the defendant’s premises by the officers, and some whisky was found therein some seven weeks before the alleged sale, such possession of said whisky was not contemporaneous with the alleged sale, and the same was inadmissible; however, as the defendant did not object to this testimony on this ground, but- objected to it altogether, there was no - error. 2. —Same—Contradicting Own Witness. Where, upon trial of a violation of the local option law, the State’s witness had not testified to facts injurious to the State, but had simply contradicted another State’s witness, and had testified favorably for the defendant, it was reversible error to permit the State to introduce an ex parte statement of the first State’s witness for the purpose of impeaching him; besides, there was no charge of the court limiting said testimony to the purpose of impeachment. [Rehearing denied January 12, 1910. — Reporter.]
57 Tex. Crim. 560Singleton v. State (1909)
The opinion states the case.
57 Tex. Crim. 567Trinkle v. State (1909)
1. — Local Option — Statement of Facts — County Court — Statutes Construed. The Act of the Thirtieth Legislature, page 59, with reference to filing statement of facts after adjournment of court, does not apply to cases tried in the County Court; and where, upon appeal from a conviction of the local option law in the County Court, it appeared from the record that the statement of facts was filed after the adjournment of court, the same could' not be considered. 2. — Same—Sufficiency of the Evidence. See opinion for evidence held sufficient to sustain a conviction of a violation of the local option law.
57 Tex. Crim. 569Parks v. State (1909)
Gaming — Former Conviction — Betting—Separate Offense. Upon trial for betting at a game played with dice called craps, where the evidence showed that defendant and others engaged in shooting craps for something like a couple of hours, during which time there were about twenty-five bets made by each of the players, including the defendant, each bet was a distinct and separate violation of the law, and the plea of former conviction upon one of the bets could not avail as a defense. [Rehearing denied January 12, 1910. — Reporter.]
57 Tex. Crim. 570Brown v. State (1909)
The State’s testimony showed that defendant and B. E. Adams hired the alleged horse for a couple of days in Kaufman County, and stated that they were going to a place named Poetry; that instead of going to said place they changed their course and went to Grand Saline in Van Zandt County, and there attempted to dispose of the horse, when the owner .was - apprised of this' fact and recovered the horse there; that they were attempting to auction off the horse and were both arrested and taken back to Kaufman County, where they were indicted; that Adams plead guilty, was sentenced to the penitentiary and afterwards pardoned; that defendant forfeited his bond and left the State, and returning thereto several years later was re-arrested. The owners of the horse testified that both defendant and Adams acted together in hiring the horse, and another State’s witness testified that they both acted together in attempting to dispose of the horse in Van Zandt County. B. E. Adams, who became a State’s witness testified that defendant hired the horse, and made the proposition to sell it, get the money and go to Tennessee, and that Adams agreed to it; that they went to Grand Saline together with the horse and there attempted to dispose of it by auction, when they were arrested. The defendant testified that B. E. Adams came to him and wanted him to take him out of the county; that they hired the horse and buggy from the alleged owners to take Adams out of the county, in order to.keep the officers from catching him; that Adams hired the horse and buggy and paid for it, and that there was never any in7 tention on defendant’s part to run away with the horse; that defendant was only 18 years of age at the time; that on the way to Grand Saline defendant stated that the whole rig would not bring $50 and Adams bet the drinks that it would, and defendant bet his pocketknife; when they got to Grand Saline they got the city marshal to put up the horse for sale, and about that time they were arrested; that defendant had no intention to actually sell the horse, and did not think that Adams actually intended to do so; that defendant had no intention at any time to convert the horse to his own use, but was simply helping Adams to get away from the officers; that he would not have left the State had his counsel not advised him that the codefendant would plead guilty and the case against defendant would be dismissed. Other facts are stated in the opinion.
57 Tex. Crim. 577O'Hara v. State (1909)
1. —Robbery—Charge of Court — Alibi. Where, upon trial of robbery, the defense was an alibi, and the court instructed the jury, after defining an alibi, that if the jury had a reasonable doubt from the evidence as to defendant’s presence at the scene of the robbery, to acquit him, there was no error. 2. —Same—Charge of Court — Defendant as a Witness. Where, upon trial for robbery, the court instructed the jury that defendant’s failure to testify was not even a circumstance against him, and no presumption of guilt could be indulged in by the jury on account of such failure, and that they were not to discuss or refer to the fact of such failure of defendant to testify, there was no error. Following Anderson v. State, 53 Texas Grim. Rep., 341, and other cases. 3. —Same—Evidence—Bill of Exceptions. Where, upon appeal from a conviction of robbery, there was no bill of exceptions in the record to the testimony objected to, the same could not be considered. 4. —Same—Newly Discovered Evidence — Want of Diligence. Where, upon motion for new trial, after a conviction of robbery, it appeared from the record that defendant had not exercised proper diligence to inform himself of said testimony before the trial; that the same was largely cumulative, and not at variance with the State’s testimony, there was no error in overruling the motion. 5. —Same—Sufficiency of the Evidence. Where, upon trial for robbery, the evidence was sufficient to support the conviction, the same will not be disturbed. See opinion as to the functions of a trial judge. [Rehearing denied January 12, 1910. — Reporter.]
57 Tex. Crim. 583Britton v. State (1910)
Carrying a Pistol — Insufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant carried the alleged pistol tó and from a blacksmith shop with a view .of having it repaired, and that the same was out of repair, the conviction could not be sustained.
57 Tex. Crim. 585Smith v. State (1910)
The opinion states the case.
57 Tex. Crim. 588Rupe v. State (1910)
The opinion states the case.
57 Tex. Crim. 590Waterhouse v. State (1910)
Carrying Pistol — Other Offenses — Evidence—Cross-Examination. Where, upon trial for unlawfully carrying a pistol,' the State was permitted to introduce testimony, on cross-examination of defendant, that defendant carried a pistol on another occasion, which was an entirely different transaction, and the State’s counsel was permitted to refer to this in his argument, there was reversible error. Following Terrell v. State, 55 Texas Crim. Rep., 282.
57 Tex. Crim. 592Stuart v. State (1910)
The opinion states the case.
57 Tex. Crim. 594McKnight v. State (1909)
The opinion states the case.
57 Tex. Crim. 595Martin v. State (1910)
1. —Robbery—Jury and Jury law — Jury Wheel — Talesmen. Where, upon appeal from a conviction of robbery, it appeared from the record that, owing to the crowded condition of the trial court’s docket and the county jail, the court had to utilize all time possible; and it further appeared in some unexpected way no jury had been drawn from the jury wheel, there was no error in the court’s action in having talesmen summoned in order to secure jurors for the transaction of the business of the court. 2. —Same—Separation of Jury — Practice in District Court. Where, upon trial for robbery, it appeared, after the jury had been “tested generally as to their qualifications, etc., and before any juror had been selected on the jury which tried the defendant, that they were permitted to separate during adjournment of the court for the noon hour, there was no error. 3. —Same—Argument of Counsel — Response. Where, upon trial for robbery, it appeared from the record on appeal that the argument of State’s counsel complained of was in response to the argument of defendant’s counsel, and the court had orally instructed the jury to disregard the same, and the whole matter was of no great importance, there was no reversible error. 4. —Same—Evidence—Confessions—Warning—Statutes Construed. The Act of the Thirtieth Legislature, which excludes confessions made under arrest except when made under proper warning, etc., does not apply where the testimony consisted of the finding of the alleged stolen property; and where, upon trial for robbery, the State’s witness testified that the defendant handed him the alleged stolen purse, there was no error, although defendant claimed that the purse was turned over to her by some one else, 5. — Same—Newly Discovered Evidence — Want of Verification — Practise. Upon appeal from a conviction of robbery, where it appeared from the record that the alleged newly discovered testimony was in nowise verified, and the motion for new trial was not even sworn to by the defendant, it could not be considered.
57 Tex. Crim. 601Ellis v. State (1910)
The opinion states the case.
57 Tex. Crim. 603Johnson v. State (1910)
The opinion states the case.
57 Tex. Crim. 605Piper v. State (1910)
The opinion states the case.
57 Tex. Crim. 609Smith v. State (1910)
The opinion states the case.
57 Tex. Crim. 611Austin v. State (1910)
The opinion states the case.
57 Tex. Crim. 613Fields v. State (1910)
1. —Theft of Hog — Charge of Court — Mistake of Fact. Where, upon trial for theft of a hog, the evidence raised the issue of mistake of fact, and the court instructed the jury that if, in taking the alleged hog, the defendant acted under a mistaken claim of right in good faith, believing the hog to be his own property, or in case of a reasonable doubt thereof to acquit, the same was sufficient, and there was no error. 2. —Same—Accomplice—Charge of Court. Where, upon trial of theft of a hog, the issue of accomplice was not raised by the evidence, there was no error in the court’s failure to charge thereon. 3. —Same—Sufficiency of the Evidence. Where, upon trial of theft of a hog, the evidence supported the conviction, the same will not be disturbed.
57 Tex. Crim. 615Vannort v. State (1910)
Local Option — Sale—Evidence—Other Transactions — Charge of Court. Where, upon trial of a violation of the local option law, it became a question whether the alleged sale of whisky was, in fact, a sale made by the defendant, and the State, in order to show the identity of the offense, system and intent, introduced testimony as to another whisky transaction in which defendant was engaged, but such transaction consisted simply in the fact that the defendant and the State’s witness had clubbed together and ordered some whisky, and upon its arrival divided the same between themselves, the same was not an offense, and therefore could shed no light on the alleged sale, and was inadmissible; and the court erred in submitting a charge thereon.
57 Tex. Crim. 617McLendon v. State (1910)
The opinion states the case.
57 Tex. Crim. 620Moss v. State (1910)
Carrying Pistol — Charge of Court — Insanity—Morphine Fiend. Where, upon trial for unlawfully carrying a pistol, the evidence showed that, while defendant was on his direct way home, he suddenly turned and involved himself in a difficulty with another, during which he drew the pistol which he was taking home; and there was also evidence that the defendant was addicted to the immoderate use of morphine and whisky, and had taken an overdose at the time of the alleged offense, and was unconscious of what he was doing, the court erred in instructing the jury that such condition, if it existed, could only mitigate the punishment, and refusing a requested charge properly submitting the law, that, if defendant’s mind was unbalanced at the time, to acquit him. Article 41, Penal Code, as to the recent use of intoxicants, did not apply. Following Otto v. State, 47 Texas Grim. Rep., 128, and other eases.
57 Tex. Crim. 623Austin v. State (1910)
The opinion states the case.
57 Tex. Crim. 625Rowan v. State (1910)
1. —Rape—Evidence—Family Bible — Secondary Evidence. Upon trial for rape on a female under the age of consent, where the mother of said female testified as to the age of her daughter, and such age was the essential issue in the case, it was reversible error to permit said witness to say that she made an entry in the family Bible of the fact and date of her daughter’s birth, and that she had torn out the leaf of the Bible and brought it with her to court, and to permit the State to introduce this leaf of said Bible containing said entry of said birth in evidence, over the objections of defendant, as this was secondary evidence, and inadmissible. Following Campbell v. Wilson, 23 Texas, 253, and other cases. 2. —Same—Evidence—Opinion of Witness. On trial for rape, testimony of the prosecutrix’ mother that she found some letters written by the defendant to prosecutrix as to improper intimacy between defendant and her daughter, which aroused her suspicion, was but an opinion of the witness, and inadmissible in evidence, the contents of the letters not having been disclosed. 3. —Same—Evidence—Presents—Intimacy. Upon trial of rape of a female under age of consent, there was no error in admitting in evidence testimony to the effect that defendant had made prosecutrix presents, to show the intimate relationship that might exist between the defendant and the prosecutrix. Following Battles v. State, 53 Texas Grim. Bep., 202. 4. —Same—Evidence—Credibility of Witness — Limiting Testimony. Where, upon trial for rape on a female under the age of consent, the State sought to impeach the credibility of one of defendant’s witnesses with reference to the age of the prosecutrix, the court should have properly limited said testimony to purposes of impeachment. 5. —Same—Charge of Court — Practice on Appeal. Where, upon appeal from a conviction of rape, appellant complained of the court’s charge with reference to allusions to a former trial, and said objection was not made in the motion for new. trial, but raised in appellant’s brief, the same could not be considered. 6. —Same—Evidence—Declarations by the Defendant. Upon trial for rape, there was no error to admit in evidence the declarations of defendant after he was out on bond, had been tried and convicted, and obtained a new trial, to the effect that he was really guilty, but was going to beat his case the next time. , 7. —Same—Variance—Name of Party Injured — Idem Sonans. Where, upon trial for rape, the indictment alleged the name of the prosecutrix to be Benani May Scurlock, while the proof showed that her name was Benoni May Scurlock, there was no variance, as the names were practically idem sonans.
57 Tex. Crim. 635Burk v. State (1910)
The opinion states the case.
57 Tex. Crim. 637Davis v. State (1910)Affirmed
Tried below before the Hon. C. V. Terrell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and twenty days confinement in the county jail. This is the second appeal of this and companion cases; the first appeal will be found in 52 Texas Grim. Beports, 546. The original information was filed March 21, 1907. At the time of the submission of this case Judge McCord was still the Assistant Attorney-General and represented the State.
57 Tex. Crim. 638Davis v. State (1910)
Tried below before the Hon. C. V. Terrell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $75 and forty days confinement in the county jail. This is the second appeal of this and .companion cases. See 52 Texas Grim. Bep., 546. The information in this case was filed March 21, 1907. When this appeal was submitted Judge McCord was still the Assistant Attorney-General, and prepared the brief for the State.
57 Tex. Crim. 639Wigfall v. State (1910)
1. —Arson—Continuance—Want of Diligence — Conflicting Testimony. Where, upon trial for arson, defendant, in Ms application for _ continuance, did not show diligence in procuring the absent testimony, which, as it appeared by the bill of exceptions, was conflicting and indefinite, there was no error in overruling his application. 2. —Same—Charge of Court — Alibi. Where, upon trial for arson, the court’s charge on alibi was in the usual and approved form, there was no error. Following Gallaher v. State, 28 Texas Grim. App., 247. 3. —Same—Wilful Burning — Charge of Court. Where, upon trial for arson, the defendant objected, in Ms motion for new trial, that the court’s charge failed to instruct the jury that the burning must be wilful, but the record showed that the court did so charge, there was no error. 4. —Same—Charge of Court — Burning. Where, upon trial for arson, the evidence showed that the house was on fire and blazing, but the fire was afterwards put out, there was no error in refusing a requested charge that, if the house was simply scorched and smoked, to acquit the defendant.
57 Tex. Crim. 642Reagan v. State (1910)
The opinion states the case.
57 Tex. Crim. 647Boyd v. State (1910)
1. — Burglary—Continuance—Want of Diligence — Not Probably True. Where, upon trial for burglary, defendant’s application for continuance showed a want of diligence in procuring the testimony of the absent witnesses, and the same was not probably true under the circumstances and facts of the case, there was no error in overruling the application. Z. — Same—Value of Alleged Stolen Property. Where, upon trial for burglary, the defendant insisted that the court should instruct the jury to find a verdict of “not guilty,” because the value of the alleged stolen property was less than $50, which the court refused to do, there was no error, as under the general burglary statute the value of the article stolen or intended to be stolen is immaterial.
57 Tex. Crim. 649Clark v. State (1910)
The opinion states the case.