58 Tex. Crim.

Volume 58 — Texas Criminal Reports

175 opinions

58 Tex. Crim. 1Railey v. State (1909)
The State’s testimony showed that the defendant and the alleged injured party were neighbors; that they lived in the suburbs of the city of Houston; that on the day of the difficulty, in the afternoon, defendant’s wife drove up in a buggy near the fence of the prosecuting witness to hitch her horse; that the prosecuting witness approached her to collect a bill of $5 which defendant owed him as the balance due on some buggy wheels, which he had sold defendant some time…
58 Tex. Crim. 28Long v. State (1910)
Sunday Law—Hearsay Evidence—Blind Tiger. * . While it was competent for the officer to have identified the place shown him by the witness, as that where the latter obtained the liquor on Sunday, yet conversations and details as to what witness did in getting the liquor out of a “blind tiger,” in the absence of the defendant, was inadmissible. Following Newman v. State, 55 Texas Crim. Rep., 376, and other cases.
58 Tex. Crim. 28Emerson v. State (1910)
The opinion states the case.
58 Tex. Crim. 30Humphries v. State (1910)
The opinion states the case.
58 Tex. Crim. 31Gracy v. State (1910)
1. —local Option—Charge of Court—Agency—Practice on Appeal. Where, upon appeal from a conviction of a violation of the local option law, it appeared from the record that the court had properly charged on the question of agency as raised by the evidence, and the motion for new trial did not set out the reason why the court erred in refusing requested instructions upon this phase of the case, there was no error in refusing a new trial. 2. —Same—Charge of Court—Sale—Requested Charges. Upon trial for a violation of the local option law, where the defendant complained of the court’s charge upon the definition of a sale, and there was no special charge requested, the matter could not be reviewed on appeal.
58 Tex. Crim. 34Deckard v. State (1910)
1. —Murder—Continuance—Fugitive from Justice. Where, upon trial for murder, it appeared that the absent witness, for which the second application for continuance was made, was a fugitive from justice, and could not be found, there was no error in overruling the motion. Following Anderson v. State, 53 Texas Crim. Rep., 341. 2. —Same—Want of Diligence—Second Application. Where, upon trial for murder, it appeared from the record that, after the case was called, defendant’s counsel had asked for an attachment for the absent witness, but it did not appear whether the attachment was issued, or, if so, what disposition was made of it; that during the trial no application was made to suspend same to await the coming of the witness, and that the witness, if existing, could have easily been reached by process, and the defendant did not use the utmost diligence to have secured his attendance, there was no error in overruling the application for a continuance and the motion for Hew trial.
58 Tex. Crim. 39Majors v. State (1910)
The opinion states the case.
58 Tex. Crim. 42Graves v. State (1910)
1. —Assault to Murder—Threats—Charge of Court—Statutes Construed. Where, upon trial for assault with intent to murder, there was evidence of threats and self-defense, and the charge of the court attempted to define what the threats must consist of, and what the party injured should do in order to justify defendant on the grounds of threats, the same was reversible error under article 713, Penal Code. 2. —Same—Charge of Court—Blending of Defenses. Upon trial of assault with intent to murder, where the defense was threats and self-defense, and the court in his charge blended the law of self-defense, both real and apparent danger, with the law of threats, and required the jury to find affirmatively the different acts of the deceased towards the defendant, before they could acquit on the ground of self-defense, the same was reversible error. Following St. Clair v. State, 49 Texas Crim. Rep., 479, and other cases. 3. —Same—Evidence—Exhibiting Wounds to Jury. Upon trial for assault with intent to murder, where it appeared that the party injured had been operated upon by physicians, and his wounds enlarged so as to treat them properly, an exhibition of the scars of the wounds and the wounds to the jury was inadmissible. 4. —Same—Evidence—Expert' Testimony. Upon trial for assault with intent to murder, there was no error in permitting physicians who had examined the wounds of the party injured to testify that the bullet entered in the shoulder behind, and came out at the top of the shoulder near the collar-bone in front, as this was not expert testimony, but could have been testified to by any one who knew the facts; besides, the same testimony appeared from other witnesses. 5. —Same—Evidence—Bes Gestae. Upon trial for assault with intent to murder there was no error in admitting testimony that the prosecuting witness, in about fifteen minutes after the shooting, said that he did not mind dying, but he hated to be shot in the back when he was unarmed; this was res gestee. •
58 Tex. Crim. 47Vinson v. State (1910)
1. —Gaining—Indictment—Private Residence. In a prosecution charging defendant with having played at a game of cards, it is not necessary that the indictment allege that the game was not played at a private residence. Following Singleton v. State, 53 Texas Crim. Rep., 625, and other cases. 2. —Same—Insufficiency of the Evidence. Where the defendant was charged with playing at a game of cards, and the evidence showed that he did not play at a game of cards or bet on same, hut that he exhibited a monte bank at which other players bet, the conviction could not be sustained. Following Askey v. State, 20 Texas Crim. App., 443, and other cases.
58 Tex. Crim. 48Blackburn v. State (1910)
Carrying Pistol—Charge of Court—Definition of Pistol. Where, upon trial for unlawfully carrying a pistol, the defendant claimed by his evidence that the so-called cylinder of the pistol was a wooden substitute therefor, it was reversible error to charge the jury that it was not necessary for the State to show that the pistol was in a shooting condition, and to refuse a requested charge that if the alleged pistol had a wooden cylinder, and could not be fired, to acquit the defendant.
58 Tex. Crim. 50Oliver v. State (1910)
Tried below before the Hon. T. A. Bledsoe. Appeal from a conviction of unlawfully intimidating and threatening another; penalty, a fine of $25.
58 Tex. Crim. 51Hardeman v. State (1910)
Theft—Variance—Ownership—Possession. Where, upon trial for theft, the indictment alleged a joint ownership, and a copartnership composed of three persons, and the proof showed possession of the alleged stolen property by two of the alleged copartners, and that one of said partners had neither the possession nor a part ownership in same, the variance was fatal.
58 Tex. Crim. 52Chappel v. State (1910)
Forgery—Indictment—Explanatory Averments, Where, upon trial for passing a forged instrument, explanatory averments were used to explain the written instrument set out in the indictment, the same was sufficient, and there was no error. Following Rollins v. State, 22 Texas Crim. App., 548, and other cases. Overruling Forcy v. State, 55 Texas Crim. Rep., 545.
58 Tex. Crim. 54Chancey v. State (1909)
1. —Robbery—Indictment—Statutes Construed, An indictment, in a prosecution for robbery, which alleged that the property was taken by assault and violence and by putting in fear of life or bodily injury, with a fraudulent intent and without the consent of the owner, to deprive the owner of the value of and to appropriate it to the use and benefit of the defendant, was sufficient, without alleging that it was against the will of the party injured. 2. —Same—Continuance—Second Application. Upon trial for robbery, where the defendant alleged that he made his first or second application for a continuance, the same must be taken as a second application. 3. —Same—Continuance—Immateriality of Testimony. Where, upon trial for robbery, it appeared that another had 'been indicted for the same offense and acquitted, and the defendant made application for a continuance for the testimony of his said codefendant, but it appeared from his application that the testimony of said codefendant was wholly immaterial, and that it did not conflict with the State’s testimony, there was no error in overruling the same. 4. —Same—Evidence—Opinion of Witness. Where, upon trial for robbery, the rejected testimony offered by the defense was simply an opinion of the witness, there was no error. 5. —Same—Evidence—Bill of Exceptions. Where, upon appeal from a conviction of robbery, the bill of exceptions failed to disclose the character and purpose of the rejected testimony, the same could not be considered. 6. —Same—Argument of Counsel—Practice on Appeal, Where, upon appeal from a conviction of robbery, it did not appear how the argument of State’s counsel could have prejudiced the rights of the defendant, there was no error. 7. —Same—Charge of Court—Principals. Where, upon trial for robbery, the court’s charge, in submitting the law of principals, covered the case as made by the testimony, and was as favorable to the defendant as the facts would authorize, there was no error. 8.—Same—Bill of Exceptions—Practice on Appeal. Where, upon appeal from a conviction of robbery, there was no bill of exceptions to the alleged introduction of testimony with reference to other offenses, the same could not be considered. 9.—Same—Sufficiency of the Evidence. Where, upon trial for robbery, the evidence sustained the conviction, the same will not be disturbed. [Beliearing denied January 26, 1910.—Beporter.]
58 Tex. Crim. 61Bordeaux v. State (1909)
The opinion states the case.
58 Tex. Crim. 74Culp v. State (1910)
The opinion states the case.
58 Tex. Crim. 79Hill v. State (1910)
Stock Law—Information—Order of Election. In a prosecution for wilfully violating the stock law adopted in the county after a local election, where the information failed to allege that the Commissioners Court passed an order directing an election to be held for the purpose of determining whether stock should be permitted to run at large in said county, the same was fatally defective; it was essential to allege and prove the precedent steps required by law to enact the local law.
58 Tex. Crim. 80Lockhart v. State (1910)
Illegal'Practice of Medicine—Indictment—Residence. Where upon trial of illegally practicing medicine in the county of the prosecution, the indictment failed to allege either that defendant resided in said county, or that his license or authority to practice medicine was not recorded in the district clerk’s office of the county of his residence, the same was insufficient. Following Marshall v. State, 56 Texas Grim, Rep,, 205,
58 Tex. Crim. 82Williams v. State (1910)
1.—Passing Forged Instrument—Charge of Court—Money—Property. Where upon trial for passing a forged instrument the court charged the jury that the written instrument must be such a one that if true it would have created, increased, diminished, discharged or defeated any pecuniary obligation or that would have transferred or aifected any property or any money whatever, the same did not enlarge the meaning of the statute, as property would certainly include money. 3.—Same—Charge of Court—Weight of Evidence. . Where upon appeal from a conviction of passing a forged instrument, it was not pointed out in the motion for new trial how the court’s charge was one upon the weight of the evidence, the objection could not be considered. 3. —Same—Charge of Court—Circumstantial Evidence. Where upon trial for passing a forged instrument, the evidence was not wholly circumstantial, there was no error m the court’s failure to charge on circumstantial evidence.. Following Conway v. State, 53 Texas Crim. Rep., 216. 4. —Same—Charge of Court—Circumstantial Evidence—Intent. The court is never required to charge the jury that the State "relies upon circumstances to establish the intent with which the act was done, and where the intent with which the act is done is proven by circumstances the court is not required to charge on circumstantial evidence. Following Flagg v. State, 51 Texas Crim. Rep., 602.
58 Tex. Crim. 84Kellogg v. State (1910)
The opinion states the case.
58 Tex. Crim. 86Melton v. State (1910)
1. —Gaming—Charge of Court—Betting Money—Chips. Upon trial for playing at a game of cards, where the indictment charged specifically that money was bet, the same was a descriptive averment requiring proof thereof, and it was reversible error to refuse a requested charge that the jury must find beyond a reasonable doubt from the evidence that defendant bet money at the game, and to submit a charge that chips represented money, to which exception was taken. 2. —Same—Evidence—Remarks by Judge. Where upon trial for gaming the defense offered testimony to explain the difference between the games of pitch and poker played with cards, to which the State objected, it was improper for the court to remark that he did not think it was material but would permit the question to be asked and answered. 3. —Same—Evidence—Absence of Witness. Where upon trial for gaming defendant’s motion for continuance was overruled, there was no error in the court’s ruling in excluding testimony why the witness for whose absence the continuance was asked was not present as a witness; this was a matter for the court and not for the jury 0 4. —Same—Evidence—Value of Chips. Upon trial for gaming testimony of the market value of chips used in a game of cards was inadmissible; the value of the chips in the particular game, to the players was not sought to be introduced in evidence. 5. —Same—Evidence—Declaration of Third Parties. Upon trial for gaming it was error to admit in evidence the declaration of third parties made on the day before the offense with reference to the whereabouts of the poker players. G.—Same—Definition of a Bet—Charge of Court. Upon trial for playing at a game of cards where it was alleged that money was bet and the evidence showed that chips were used, etc., the court should have defined betting, as requested.
58 Tex. Crim. 90Pace v. State (1910)
The opinion states the case.
58 Tex. Crim. 98Dean v. State (1910)
The opinion states the case.
58 Tex. Crim. 100Fricks v. State (1910)
The opinion states the case.
58 Tex. Crim. 103Woods v. State (1910)
1. —Slander of Female—Indictment—Want of Chastity. Where upon trial of slander of a female, the indictment failed to charge that the language employed in itself imputed a want of chastity to the alleged female, and there were no innuendo averments as to what the language used meant, the same was insufficient. 2. —Same—Charge of Court—Or Otherwise. "Where upon trial of slander of a female the court instructed the jury that if defendant imputed a want of chastity to the alleged female, orally or otherwise, he would be guilty, the same was reversible error. The allegation being that the slander was oral.
58 Tex. Crim. 104Wilson v. State (1910)
1. —Theft—Evidence—Proferí. Where upon trial for theft the State was permitted to exhibit some of the alleged stolen articles to the jury, it was reversible error to refuse defendant to exhibit other alleged stolen articles to the jury, in order to show that they did not suit the description given of them by the State’s witness. 2. —Same—Evidence—Owner. • Upon trial for theft it was reversible error to reject testimony by the defense, showing that the alleged owner of the alleged stolen property was in fact not the owner thereof.
58 Tex. Crim. 106Smith v. State (1910)
Adultery—Insufficiency of the Evidence—Accomplice. See opinion for uncorroborated evidence of accomplice held insufficient to support the indictment charging adultery by means of habitual carnal intercourse without living together.
58 Tex. Crim. 109Cardenas v. State (1910)
1. —Unlawfully Biding Train—Variance—Information—Affidavit. Where upon trial of unlawfully boarding a freight train, the affidavit simply alleged the initials of a railway company, and the information alleged the full name of a railway company, the variance was fatal; there being no explanation as to what the initials in the complaint stood for. 2. —Same—Complaint—Jurat—County Judge. Where upon trial for unlawfully riding a train, the jurat to the affidavit did not disclose the county in which the county judge officiated, but the record of the case disclosed the name of the county, the same was sufficient.
58 Tex. Crim. 110Wadkins v. State (1910)
The following statement taken from appellant’s brief is substantially correct: The prosecutrix, Eittie Wadkins, testified that in November, 1908, appellant engaged with her in a carnal act down on the branch near his home. She made out a case of rape by fear or force. The prosecutrix was nineteen years of age, and it was admitted that she was a bastard, that is, that appellant was never married to her mother. She was the youngest of four bastard children.
58 Tex. Crim. 115Wyatt v. State (1910)
1. —Bobbery—Evidence—Absent Witness, Testimony of. Upon trial for robbery there was no error to exclude the testimony of an absent witness, of whom it was not shown that he was dead or beyond the jurisdiction of the State. 2. —Same—Jury and Jury Law—Precedent. Where the complaint as to the empaneling of the jury had been adversely decided by this court against the appellant, there was no error on this point. S.—Same—Allusion to Former Conviction. Where upon trial for robbery the State’s counsel was permitted on cross-examination of the defendant to ask him whether he had not been convicted and given ten years in this case, the same was reversible error, although the court told the jury to disregard the question. Following Baines v. State, 43 Texas Crim. Rep., 490, and other cases. 4.—Same—Variance—Firearms—Assault by Violence. Where the indictment charged the robbery to have been made by violence, and the evidence showed that the defendant struck the injured party over the head with a six-shooter at the time of the alleged robbery, there was no variance, as such allegation in the indictment did not charge a robbery with firearms, and the pistol was simply used as a bludgeon and therefore the proof comported with the allegation of an assault by violence.
58 Tex. Crim. 118Maxey v. State (1910)
The opinion states the case.
58 Tex. Crim. 122Douglas v. State (1910)
The opinion states the case.
58 Tex. Crim. 129Barbee v. State (1909)
1. —Murder—Evidence—Cross-Examination—Conversation. Upon trial for murder' there was no error in permitting the State on cross-examination of defendant’s wife, who had testified to an insult offered her by the deceased, to ask her what her husband said when she told him of this insult, and what questions he asked her; this being part of a conversation introduced by the defense. 2. —Same—Evidence—Contradicting Witness. Where upon trial tor murder the wife of the defendant had testified to certain insulting conduct offered her by the deceased, there was no error in permitting the State on cross-examination of one of defendant’s witnesses to show that defendant’s wife had not resented said alleged insults if they were offered. 3. —Same—Evidence—Carrying Deadly Weapon—Motive. Where upon trial for murder there was testimony that defendant was looking for deceased, with ■ reference to some trouble which the latter had with defendant’s son, and that defendant was angry, etc., there was no error to admit testimony to show that at that time he carried a pistol; besides that fact appeared by other testimony. 4. —Same—Evidence—Insult to Female Relative. Upon trial for murder where the defense claimed insulting conduct by the deceased towards defendant’s wife, there was no error in admitting testimony that after said alleged insult there was no difference in relations between the deceased and defendant’s wife. 5. —Same—Evidence—Bill of Exceptions—Cross-Examination. While it is admissible to interrogate a witness as to his testimony on a former trial, and to lay a predicate to contradict him, etc., yet where on appeal from a conviction of murder in the second degree the bill of exceptions did not disclose what the witness would have answered to the question propounded about his testimony on a former trial, the same could not be considered. 6. —Same—Evidence—Acts of Deceased. Upon trial for murder where the evidence for the State showed, that the deceased, having been shot down by the defendant, immediately fell with his body partly under the hind end of the wagon, and very soon died without speaking a word, there was no error in excluding testimony as to what impression a certain movement of the deceased with his hand made on the witness, as at that time defendant could not have acted on anything the deceased was doing. 7. —Same—Self-Defense—Charge of Court—Manslaughter. Where upon trial for murder the court’s charge required the jury to believe not only the affirmative of the issue of insulting conduct towards the defendant’s wife, but required them further to find that the deceased had used violent language to and threatened defendant with bodily harm, before they could reduce the. offense to manslaughter, the same was reversible error. 8. —Same—Charge of Court—Blending Issues—Adequate Cause. Where, in a trial of murder, any one or more issues are raised by the evidence, either of which if found to be true would as a fact constitute adequate cause the jury should be so instructed, and it is error to blend the two and require that the affirmative of both issues must be found before the offense can be reduced to manslaughter. Following Hightower v. State, 53 Texas Crim. Rep., 486, and other cases. 9.—Same—Charge of Court—Conflict—Adequate Cause—Case Stated. Where upon trial for murder there was evidence of insulting conduct by the deceased towards defendant’s wife, and also violent language and threatened injury by the deceased towards the defendant, and the court in instructing upon these issues submitted charges thereon which were in conflict with each other, and required the jury to find affirmatively' upon both of these issues before they could reduce the offense to manslaughter, the same was reversible error. McCord, Judge, not sitting.—Beporter.
58 Tex. Crim. 141Gonzales v. State (1910)
The opinion states the case.
58 Tex. Crim. 143Durham v. State (1910)
Carrying Pistol—Disqualification of Judge—Attorney and Client. Where upon trial for unlawfully carrying a pistol it was shown that the presiding judge advised defendant upon a case which involved the same transaction, but which had been dismissed and another indictment found, he was disqualified from sitting in the case as a trial judge; and this, although such advice was claimed to have been given not as an attorney but a friend, inasmuch as the entire details of the defense were submitted to him, and he gave advice thereon to defendant to plead guilty. Following Graham v. State, 43 Texas Crim. Rep., 110.
58 Tex. Crim. 145Arredondo v. State (1910)
The opinion states the case.
58 Tex. Crim. 146Rogers v. State (1910)
Theft—Insufficiency of the Evidence—Description of Money. Where the defendant was charged with stealing current money of the United States of America, and there was no evidence that the alleged stolen money was current money of the United States of America, the conviction could not he sustained. Following Early v. State, 56 Texas Crim. Rep., 61.
58 Tex. Crim. 147Munos v. State (1910)
The testimony for the State showed that defendant went to the house reputed to be controlled by the deceased early in the evening, and there met deceased and other Mexicans, including two women; that the parties were all Mexicans and they entertained themselves with music for some time and were all drinking whisky; that defendant then left and returned to the house shortly before. midnight in an intoxicated condition, carrying with him a bottle of whisky, of which he and the…
58 Tex. Crim. 152Feeney v. State (1910)
1. —Forgery—Variance—Written Instrument must Correspond with Allegation. Where upon trial for passing a forged instrument the indictment described the same in haec verba, and the instrument admitted in evidence was not an exact copy of the one alleged in the indictifoent, the.variance was fatal. Following Fischl v. State, 54 Texas Crim. Rep., 55, and other cases. 2. —Same—Charge of Court—Knowledge. Where upon trial for passing a forged instrument, the charge of the court failed to instruct the jury that the appellant must have known that the alleged instrument was forged, at the time he passed it, the same was reversible error. 3. —Same—Charge of Court—Fictitious Person. Where upon trial for passing a forged instrument the indictment alleged that the name set out in said instrument was a fictitious person, the charge of the court should have submitted this issue. 4. —Same—Charge of Court—Intent to Defraud. Where upon trial for passing a forged instrument, the court failed to submit to the jury a charge that in order to convict defendant he must have passed said instrument with intent to defraud, the same was reversible error.
58 Tex. Crim. 156Ex Parte Striitmatter (1910)
The opinion states the case.
58 Tex. Crim. 159Decker v. State (1910)
The opinion states the case.
58 Tex. Crim. 165Schuh v. State (1910)
The opinion states the case.
58 Tex. Crim. 169Fry v. State (1910)
1. —Theft—Confessions—Warning—Statute Construed. ■ Where upon trial for theft the evidence showed that the defendant was practically under arrest at the time he made the alleged confessions, and it appeared that the same were not made in writing under the formalities of the statutes, requiring that such confessions must be in writing, after due warning, etc., the same were inadmissible in evidence. 2. —Same—Juvenile Criminal—Query. See opinion with reference to prosecutions under provisions of section 9 of the Act of the Thirtieth Legislature, page 137, referring to juvenile criminals under the age of sixteen years, which the court refrains from construing.
58 Tex. Crim. 171Farmer v. State (1910)
Injuring Fence of Another—Trespass—Peaceable Possession—Insufficiency of the Evidence. Where upon trial for unlawfully injuring the fence of another, the evidence showed that the defendant claimed the land upon which prosecutor erected a fence and joined it to the defendant’s fence; that defendant had taken down this fence, where it joined his fence, to permit his stock to get to water;' and there was no evidence that the prosecutor was in the quiet and peaceful possession of the land where the fence was taken down by the defendant, but was in fact a trespasser on land claimed by defendant, the conviction could not he sustained. Following McNeely v. State, 50 Texas Crim. Rep., 279, and other cases.
58 Tex. Crim. 173Hamilton v. State (1910)
The opinion states the case.
58 Tex. Crim. 176Riley v. State (1910)
1. —Bawdy House—Definition of Offense—Disorderly House—Assignation House. See opinion for the difference between a bawdy house, disorderly house and assignation house, as defined by statute. 2. —Same—Evidence Required to Convict. Upon trial of unlawfully keeping a bawdy house, the State must meet the case as charged in order to support a conviction. 3. —Same—Continuance—Material Testimony. Where upon trial of keeping a bawdy house, the State introduced testimony to the effect that a man and a woman were seen together in one of the rooms of the alleged house, for illicit purposes, and defendant’s application for a continuance, stated that these witnesses would contradict the State’s testimony, and showed due diligence in trying to secure the attendance of said witnesses, it was reversible error to overrule said motion and not to grant a new trial; although appellant had testified that if said parties were in her house they were there without her consent and that she had no knowledge of this fact. 4. —Same—Proof Necessary—Resort for Prostitutes. Upon trial of keeping a bawdy house, the State could not rely upon the fact that appellant herself may have had illicit sexual intercourse in said house, to prove or sustain the allegation that it was a bawdy house where women resorted or resided for the purpose of carrying on their vocation.
58 Tex. Crim. 180Blanchette v. State (1910)
Aiding Escape of Prisoner—Information—Statutes Construed. There is no such offense as an attempt to aid a person to escape. Article 229, Penal Code, provides that if any person shall wilfully aid a prisoner to escape, etc., he shall be punished, etc. See arts. 229, 233 and 240, Penal Code. See opinion for information held insufficient.
58 Tex. Crim. 181Clark v. State (1910)
The opinion states the case.
58 Tex. Crim. 183Moore v. State (1910)
1. —Adultery—Accomplice Testimony—Charge of Court. On trial for adultery where the main State’s witness was the paramour of defendant, she was an accomplice, and the court should have correctly instructed the jury as to accomplice testimony which it failed to do as requested; this was reversible error. 2. —Same—Charge of Court—Circumstantial Evidence. Where upon trial of adultery the evidence was not entirely circumstantial the court should not have charged on circumstantial evidence.
58 Tex. Crim. 184Cannedy v. State (1910)
Fornication—Information—Fornication Without Living Together. Where in a prosecution for fornication the information charged unlawful and habitual carnal intercourse, but omitted the words “without living together,” the same was insufficient. Following Jones v. State, 29 Texas Crim. App., 347.
58 Tex. Crim. 185Headley v. State (1910)
Scire Facias—Bail Bond—Grand Jury—Indictment. Where the grand jury had failed to present an indictment against the principal in the bail bond at the next term of the District Court, and there was no order entered of record that such a prosecution should be and had been continued by the direction of the court, a judgment nisi on said bail bond at a subsequent term of the court was not authorized; and a mere general entry at the former term to the effect that it .was unnecessary to impanel the grand jury, would not constitute a continuance of the prosecution.
58 Tex. Crim. 187Russell v. State (1910)
The opinion states' the case.
58 Tex. Crim. 188Kirksey v. State (1910)
The opinion states the case.
58 Tex. Crim. 191Spriggs v. State (1910)
The opinion states the case.
58 Tex. Crim. 193Williams v. State (1910)
The opinion states the case. The plea of former jeopardy was as follows: And now comes the defendant in the above entitled and numbered cause, and alleging and averring that he can not be further legally prosecuted for the offense herein charged against him, says and shows to the court that he has already once before been jut in jeopardy for said offense. That heretofore, to wit, on the 25th day of October, 1907, in this court, the said court then and there having jurisdiction of said case, he was the accused who was in due form of law then and there upon his trial upon a pending information in every particular valid and sufficient in law, which charged him with the same identical offense and charged him with an offense necessarily involving the same offense as herein charged against him; which is more fully shown by the said information and complaint, a certified copy of which is hereto attached and marked Exhibit “A” and made a part of this cause, and which said cause was entitled: The State of Texas v. Ed Williams, and Ho. 3631, number on the docket of said court; that said cause was duly called for trial and a jury was legally empaneled and sworn to try the same, and the information having been read to the jury; that thereupon defendant was called upon to plead, and did plead not guilty to the charge so preferred against him, and the prosecuting attorney having placed all of the State’s witnesses upon the stand and the defendant having placed all of his witnesses upon the stand, the county attorney then and there verbally moved the court to dismiss said information and complaint, there was no written motion made and filed in said cause by the county attorney setting forth his reason or grounds for said dismissal, to which this defendant then and there objected, but the court disregarding defendant’s objection, and over his objection and protests, sustained the verbal motion of the said State’s attorney and permitted him to withdraw the case from the jury without verdict, to nolle pros said case, and to dismiss the said information and complaint against this defendant. And the court thereupon rendered and entered up a judgment dismissing said prosecution. All of which is more fully shown by certified copy of said judgment, hereto attached, marked Exhibit “B,” and defendant’s bill of exceptions reserved at the time to said rulings and orders of the court, which is also hereto attached, marked Exhibit “C” and made a part hereof. This defendant says, and is prepared to show to this court that he is the same accused as was on trial in said cause No. 3631, and that in this case No. 3669, he is charged with the same offense and that it is one and the same transaction and offense with which he was charged in cause No. 3631, and for which' he has heretofore been placed upon trial and in a court of.competent jurisdiction, and upon a valid information and before a jury duly selected, empaneled and sworn as aforesaid, and this he is ready to verify. Wherefore and by reason of the premises aforesaid, the defendant alleges and avers that in manner and form above shown he has once before been placed in jeopardy for the offense for which he is now again being prosecuted, and that he should lienee be discharged from prosecution and liability for said offense, and of this he prays judgment of the court.
58 Tex. Crim. 195Bonner v. State (1910)
The opinion states the case.
58 Tex. Crim. 198Menchaca v. State (1910)
The opinion states the case.
58 Tex. Crim. 200Elliott v. State (1910)
1. —Murder—Terms of District Court—Indictment—Special Term, A special term of the District Court can be held, where the district is composed of more than one county, in an adjoining county of the one where the regular term of the District Court is in session, and the judge can recess the term of the court and proceed, while that term has not been finally adjourned, to hold a special term in an adjoining county of his district; and unless it be shown that the defendant tried during such a special term was injured in .his legal rights, there is no error. 2. —Same—Case Stated—Presiding Judge. Where upon trial for murder it appeared from the record on appeal that, the presiding judge of the District Court during the regular term of his court in one of the counties of his district ordered a special term of said court in another county of the district, appointed jury commissioners to select petit' and grand juries and a special venire for said special term, and afterwards organized a grand jury who found the indictment against the defendants, set the case and tried the defendants; but during the organization of the jury commissioners, and while the grand jury was in session, returned to the regular term of his court and left the grand jury deliberating, and was absent a large portion of the time from the special term of the court, but presided at the trial of the case, and there being no injury shown to the defendants, there was no error, although he recessed the regular term of the court from time to time. 3. —Same—Indictment—Motion In Arrest of Judgment. Where upon trial for murder it appeared after conviction upon appeal that while the regular term of the court was being held in one of the counties of the district, the presiding district judge under the law ordered a special term of his court in another county of his district, appointed jury commissioners to draw petit and grand jurors, empaneled the grand jury who found the bill of indictment against the defendants, there was no ground to quash said indictment and no error in overruling a motion in arrest of judgment on the ground that the presiding judge was holding two courts at the same time; that he went to and fro between said courts, and absented, himself for a week or more from the special court while the grand jury were deliberating upon the indictment, or because he set the case for trial and again returned to his regular court for several weeks and then returned to the special term of the court and tried the case before his regular term of court bad finally adjourned; there appearing nothing of record that the defendants’ rights had been injured thereby. 4. —Same—Practice on Appeal—Sufficiency of the Evidence. Where upon an appeal from a conviction of murder the conviction was supported by the evidence, there was no error. 5. —Same—Sufficiency of the Evidence—Special Charge Eefused. Where upon appeal from a conviction of murder the evidence supported the verdict, there was no error in refusing a special instruction to acquit the defendant. 6. —Same—Charge of Court—Several Defendants—Limiting Testimony. Where upon trial for murder against two defendants who were placed upon trial at the same time, the evidence showed that they acted together, there was no error in instructing the jury that the charge of the court with reference to the form of verdict, punishment, presumptions of innocence, reasonable doubt, and reasonable doubt between degrees of murder as well as to the principles of law, applied to both defendants; the court having previously charged the jury as to who were principals, and defined murder of the different degrees as well as manslaughter and self-defense. 7. —Same—Evidence—Acts and Declarations of Defendants. Upon trial of murder of two defendants at the same time, where the evidence showed that they acted together in the homicide, there was no error to admit testimony that after the homicide the State’s witness had a conversation with the defendants, and that one of the defendants stated in the presence and hearing of his codefendant to the witness that they had gone to the house of the deceased to see about a yearling, and also stated how deceased was shot, the defendants having denied that they went to the house of deceased for that purpose; and there was no error in the court’s failure to limit this testimony in his charge to the jury, as this was a controverted fact for the jury. [Rehearing denied February 2, 1910.—Reporter.]
58 Tex. Crim. 209Long v. State (1910)
The opinion states the case.
58 Tex. Crim. 216Placker v. State (1909)
1. —Theft from the Person—Evidence—Other Offenses. See opinion for statement as to the admission of certain testimony with reference to defendant’s account of money received out of a gambling transaction. 2. —Same—Remarks by Judge—Practice in District Court. Upon trial of theft from the person where the defendant tried to account for certain money in his possession and where the State’s attorney asked the witness on cross-examination whether defendant had won the money at a game of cards which was answered in the affirmative, whereupon the State’s attorney put the question to the witness whether it was not a fact that gamblers sometimes had money and sometimes they did not, to which the defendant objected, and the court in overruling the objection stated that this was the most material question the district attorney had asked the witness, to which remarks of the court the defendant objected, the same was reversible error. 3. —Same—Insufficiency of the Evidence. See opinion of the court for evidence in a trial of theft from the person, which in view of the entire record on appeal is held to be hardly sufficient to sustain a conviction.
58 Tex. Crim. 223Newman v. State (1910)
The opinion states the case.
58 Tex. Crim. 228Hutchinson v. State (1910)
The opinion states the case.
58 Tex. Crim. 231Patton v. State (1910)
Aggravated Assault—Continuance—Immateriality—Impeachment. Where upon trial for aggravated assault the absent testimony, to the effect that the absent witness saw the prosecutrix shortly after the commission of the offense and discovered no signs of bruises on her, but there was no time given when the witness saw prosecutrix, the same was immaterial; besides the same was only of an impeaching character, and there was no error in overruling the application.
58 Tex. Crim. 233Burke v. State (1910)
The opinion states the case.
58 Tex. Crim. 239Ex Parte Caldwell (1910)
1. —Theft—Misdemeanor—Bail—Statutes Construed. The Act of the Legislature with reference to permitting parties to remain upon bail during trial does not apply to misdemeanors; and when convicted the statute requires that defendant be committed to jail until such fine and costs are paid. 2. —Same—Bail Bond—Motion for New Trial. Where defendant was convicted of a misdemeanor, and he filed motion for new trial, the hearing of which was postponed, pending which relator was committed to the custody of the officer, he could not be released on his former bail bond during the pendency of the motion for new trial.
58 Tex. Crim. 240Walters v. State (1910)
The opinion states the case.
58 Tex. Crim. 243Nicholas v. State (1910)
The opinion states the case.
58 Tex. Crim. 244Johnson v. State (1910)
The opinion states the case.
58 Tex. Crim. 248Neumann v. State (1910)
Aggravated Assault—Evidence—Other Offenses and Transactions. Where upon trial for aggravated assault, the information charging the assault of an adult male upon the person of a female, there was a sharp conflict in the testimony as to whether defendant had made the assault upon his wife, it was reversible error to admit testimony that the defendant had tried to get the prosecutrix on one occasion to put poison in her father’s coffee.
58 Tex. Crim. 250Jones v. State (1909)
Burglary—Sufficiency of the Evidence. See opinion for evidence held sufficient to support a conviction of burglary of a private residence. [Rehearing denied February 21? 1910.—Reporter.]
58 Tex. Crim. 252McCoy v. State (1910)
Theft of a Hog—Charge of Court—Principals. See opinion for charge of the court in applying the law of principals to the facts in the case, which is held to be sufficient. [Rehearing denied February 9, 1910.—Reporter.]
58 Tex. Crim. 253Simpson v. State (1910)
Tried below before the Hon. John R. McGee. Appeal from a conviction of allowing a minor into a pool hall; penalty, a fine of $25.
58 Tex. Crim. 255Damron v. State (1910)
The opinion states the case.
58 Tex. Crim. 256Isaacs v. State (1910)
Burglary—Variance—Statement of Facts—Practice on Appeal. Where upon appeal from a .conviction of burglary no statement of facts appeared in the record, a variance between the allegations contained in the indictment and the proof, touching the name of the person whose house is alleged to have been burglarized, could not be considered.
58 Tex. Crim. 257Gonzales v. State (1910)
The opinion states the case.
58 Tex. Crim. 258Stoudenmire v. State (1910)
The opinion states the case.
58 Tex. Crim. 261Owen v. State (1910)
The opinion states the case.
58 Tex. Crim. 269Lemmons v. State (1910)
1. —Seduction—Charge of Court—Accomplice Testimony. Upon trial of seduction, where the court, in submitting his charge on accomplice testimony, failed to instruct the jury that they must find that the testimony of the accomplice was true, and that the corroboration was not sufficient if it merely showed the commission of the offense, the same was reversible error. 2. —Same—Consent—Charge of Court. . In seduction, where the issue of consent was involved, the court should have submitted a proper charge.
58 Tex. Crim. 270Love and McDonald v. State (1909)
Burglary—Insufficiency of the Evidence. See opinion for evidence held to be insufficient to support a conviction for burglary. [Rehearing denied February 9, 1910.—Reporter.]
58 Tex. Crim. 271Tucker v. State (1910)
The opinion states the case.
58 Tex. Crim. 273Reynolds v. State (1910)
1. —Aggravated Assault—Former Acquittal—Variance—Name of Party Injured. Where upon trial for aggravated assault defendant interposed a' plea of former acquittal, and it appeared from the evidence under said plea that the former acquittal resulted on account of the variance between the name of the person alleged to have been assaulted as charged in the information, and as in fact developed on the trial, the plea of former acquittal could not avail. 2. —Same—Charge of Court—Means Used—Applying Law. Where upon trial for aggravated assault by an adult male on the person of a female, the charge of the court in defining what constituted an assault and battery was broader than the means charged in the information, but in applying the law to the facts confined the law to the allegations in the information and the evidence, there was no error. Following Railsback v. State, 53 Texas Crim. Rep., 542. [Rehearing denied February 9, 1910.—Reporter.]
58 Tex. Crim. 275Rodriguez v. State (1910)
Forgery—Argument of Counsel—Allusion to Other Case. Where upon trial for forgery the evidence showed that the defendant remained in the community after the alleged commission of the offense, it was reversible error to permit counsel for the State over the objection of the defendant to allude to another case of forgery in which the accused had been convicted, to the effect that he too remained in the community; it appearing from the record on appeal that some of the same jurors who tried defendant convicted the accused in the case to which the State’s counsel referred; and that the court refused to withdraw the remarks of the counsel from the jury. Following Davis v. State, 54 Texas Crim. Rep., 236; 114 S. W. Rep., 366.
58 Tex. Crim. 279Ex Parte Koen (1910)
1. —Refusing to Work on Public Road—Municipal Corporation—Collateral Attack—Habeas Corpus. Where relator was arrested on a capias profine issued out of the Justice Court on a judgment convicting him of failing to work on a public road, and relator contended that he had been illegally convicted inasmuch as he lived in an incorporated town, it was reversible error to. permit the county attorney over the objection of relator to show that some of the signers to the petition for incorporation were not qualified electors, as this was a collateral attack on the validity of the incorporation of said town. 2. —Same—Collateral Attack—Guo Warranto. Where a city was incorporated under article 580, chapter 11, of the Revised Statutes, it will be conclusively presumed that all the requirements of the law have been complied with in the incorporation, and said Act of Incorporation can not be impeached in a collateral proceeding; it is only by quo warranto in a direct proceeding that such incorporation can be annulled. 3. —Same—Incorporated Town—Road Duty—Habeas Corpus. Where upon habeas corpus proceeding it appeared from the record on appeal that the relator, at the time he was fined for not working on the road outside of an incorporated town, he was a resident of a duly incorporated town, he was not subject to road duty outside of the corporate limits of said town, and being arrested on a capias profine by virtue of a judgment in the Justice Court for failing to work the road outside of said town after having been duly summoned, he was entitled to his discharge under writ of habeas corpus.
58 Tex. Crim. 282James v. State (1910)
The opinion states the case.
58 Tex. Crim. 283Dorham v. State (1910)
The opinion states the case.
58 Tex. Crim. 284Williams v. State (1910)
1.—Assault to Murder—Sufficiency of the Evidence. Where upon trial for assault with intent to murder, the evidence sustained the conviction, the same will not be disturbed. 2. —Same—Newly Discovered Evidence. Where upon motion for new trial, after conviction for assault to murder, the same did not show proper diligence on the part of the defendant to acquaint himself with the alleged newly discovered evidence, there was no error in overruling the motion. 3. —Same—Misconduct of Jury—Discretion of Court. Where, on motion for new trial, after conviction of assault with intent to murder, defendant complained of certain language not in evidence, used by one of the jurors to his fellows during their retirement, and it became an issue as to whether said language was used before or after the verdict was found, and the same was passed upon by the trial judge and found adversely to the defendant, there being evidence pro and con on this issue, there was no reversible error. Following Veas v. State, 55 Texas Crim. Rep., 125. [Rehearing denied February 9, 1910.—Reporter.]
58 Tex. Crim. 288Ex Parte Will Goodwin (1910)
Bail—Habeas Corpus—Excessive Bond. See opinion stating reasons for reducing relator’s bail.
58 Tex. Crim. 289Ellis v. State (1910)
1.—Assault to Murder—Practice on Appeal—Affirmance. The rule of practice in the Court of Criminal Appeals is not to affirm a case upon request, or dismiss the appeal upon request of appellant unless there is in writing an affidavit to the effect that he so desires, and this affidavit must be signed by him. 2.—Same—Practice on Appeal. Where the request for affirmance bore sufficient evidence of the genuineness of the appellant’s personal request, the same was granted; besides, according to the record on appeal, it was such that the case would have been affirmed anywgy.
58 Tex. Crim. 291Berry v. State (1910)
The opinion states the case.
58 Tex. Crim. 293Burrell v. State (1910)
The opinion states the case.
58 Tex. Crim. 295Holt v. State (1910)
Carrying Pistol—Description of Pistol—Sufficiency of the Evidence. Upon trial for unlawfully carrying a pistol, where the State’s witness, in describing what he saw, at times hesitated whether the same was a pistol or not, but stated several times that it was a pistol, it was proper to admit the testimony; and where the circumstances were sufficient in aid of the direct testimony to support the verdict, the conviction will not be disturbed.
58 Tex. Crim. 296Wheeler v. State (1910)
Murder—Charge of Court—Manslaughter—Acts of Deceased—Adequate Cause. Upon trial for murder, where there was no evidence of any assault by deceased upon defendant, there was no error in the court’s charge of manslaughter in failing to charge the substance of subdivision 2, article 702, Penal Code, with reference to a serious conflict and great injury inflicted by the deceased, etc.; said charge on manslaughter being in all respects a proper application of the law to the facts. [Rehearing denied February 16, 1910.—Reporter.]
58 Tex. Crim. 299Pollard v. State (1910)
The opinion states the case.
58 Tex. Crim. 308Thurston v. State (1910)
The opinion states the case.
58 Tex. Crim. 310Liles v. State (1910)
58 Tex. Crim. 313Jones v. State (1910)
1. —Carrying Pistol—Credible Person—Affidavit. The mere fact that a witness for the State who made the complaint against the defendant was impeached as to his veracity upon the trial of the case, did not render him an incredible person, so as to authorize the court to quash the complaint. Following Conant v. State, 51 Texas Crim. Rep., 610, and other cases. 2. —Same—Evidence—Testimony drawn out by Defendant. Where, upon trial for unlawfully carrying a pistol, defendant’s counsel asked the State’s witness why he waited so long before he made the complaint, and the witness answered that he did not intend to make the complaint, but the defendant kept going around over the country threatening him, there was no error, as defendant drew out this matter, nor was there any error in permitting State’s counsel to comment on this testimony. 3. —Same—Argument of Counsel—Requested Charge Necessary. Where, upon trial for unlawfully carrying a pistol, the argument of the State’s counsel was not of such character as required a reversal of the judgment, and no special charge was requested to disregard the argument, there was no error. 4. —Same—Sufficiency of the Evidence. Where, upon trial for unlawfully carrying a pistol, the evidence sustained the conviction, the same will not be disturbed.
58 Tex. Crim. 316Newton v. State (1910)
The opinion states the case.
58 Tex. Crim. 319Ellis v. State (1910)
The opinion states the case.
58 Tex. Crim. 321Tinker v. State (1910)
1. —Gaming—Pool Table—Misconduct of Jury—Penalty. Where, upon appeal from a conviction of betting at a certain gaming table, bill of exceptions in the record did not disclose that the jurors were questioned before they were accepted, as to whether they had any bias or prejudice or as to whether they had expressed an opinion, an objection to a certain juror because he had expressed an opinion with reference to the guilt or innocence of the defendant, could not be revised; besides it was not improper for the jurors to give reasons from the testimony why a certain penalty should be. imposed. 2. —Same—Charge of Court—Bet or Wager. Where, upon trial of unlawfully betting on a pool table, the defendant did not except to the court’s charge defining a bet or wager, and said charge was abstractly correct, and no special charge was requested, there was no error. 3. —Same—Charge of Court—Buie in Misdemeanors. In misdemeanor cases ,it is only where the charge given is erroneous and complained of, that the Court of Criminal Appeals will reverse. 4. —Same—Charge of Court—Betting. Where, upon trial for unlawfully betting on a pool table, the court’s charge made defendant’s guilt depend on the betting of others at the game, and said charge was excepted to by bill of exceptions and motion for new trial, the same was reversible error.
58 Tex. Crim. 324Talbot v. State (1910)
The opinion states the case.
58 Tex. Crim. 327Best v. State (1910)
By the wife of the deceased it was shown that on the morning of the homicide her husband was over in the east field plowing; that she heard four shots, and walking to the edge of the gallery soon thereafter saw her husband coming towards the house nearly in a run; that she went to meet him, and asking what was the matter, he told her that defendant had shot him; and upon being asked by his wife what the deceased was doing at the time, deceased answered, “Nothing;” and…
58 Tex. Crim. 336Brown v. State (1910)
The opinion states the case.
58 Tex. Crim. 340Veal v. State (1910)
1. —Carrying Pistol—Variance—Disturbing Religious Worship. Where, upon trial for unlawfully carrying a pistol, the evidence showed that the defendant was seen with a pistol at a place where religious worship was conducted, the defendant could not claim a variance between the allegations in the indictment and the evidence. Following Walker v. State, 52 Texas Crim. Rep., 314. 2. —Same—Convict Guard—Charge of Court. Where, upon trial for unlawfully carrying a pistol, there was some evidence that the defendant had been a State convict guard, there was no error in refusing a special charge that if defendant was a convict guard at the time the jury should acquit; the place being one for religious worship. Following West v. State, 26 Texas Crim. App., 99. 3. —Same—Carrying Pistol to Owner—Charge of Court. On trial for unlawfully carrying a pistol, where the evidence showed that he carried same at a place where people assembled for religious worship, defendant could not excuse himself on the ground that at the time he was carrying the pistol to the owner. Following Stilly v. State, 27 Texas Crim. App., 445, and other cases. 4. —Same—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence sustained the conviction, the same will not be disturbed.
58 Tex. Crim. 342Edwards v. State (1910)
The opinion states the case.
58 Tex. Crim. 345Washington v. State (1910)
Tried below before the Hon. R. W. Simpson. Appeal from a conviction of rape; penalty, six years imprisonment in the penitentiary.
58 Tex. Crim. 349Campbell v. State (1910)
The opinion states the case.
58 Tex. Crim. 351Lewis v. State (1910)
The opinion states the case.
58 Tex. Crim. 366Fitch v. State (1910)
The opinion states the case.
58 Tex. Crim. 393Misher v. State (1910)
local Option—Felony—Misdemeanor. The Act' of the Thirty-first Legislature making it a felony to sell intoxicating liquor in local option territory does not apply where the local option law was in force before the passage of said Act.
58 Tex. Crim. 394Misher v. State (1910)
Local Option—Felony—Misdemeanor—Jurisdiction. ■ The Act of the Thirty-first Legislature, providing a felony punishment for a violation of the local option law, does not apply to territory theretofore adopting the local option law; and the District Court has no jurisdiction in such event and the case must be tried in the County Court.
58 Tex. Crim. 395Ex Parte Henry Sim (1910)
The opinion states the case.
58 Tex. Crim. 397Rodriguez v. State (1910)
The opinion states the case.
58 Tex. Crim. 401Chappell v. State (1910)
1. —Forgery—Practice on Appeal. Where, upon appeal from a conviction of forgery, the questions raised were settled against appellant by former precedent, there was no error. 2. —Same.—Continuance—Time of Convening Court. Where, upon appeal from a conviction of forgery, it appeared from the record that the trial court had announced the evening before the trial that the court would be convened at a certain hour in the morning and that the case against defendant would be called, there was no error in overruling the application for continuance. 3. —Same—Evidence—Handwriting—Expert Witness. Where, upon trial for forgery, it appeared that the witness was thoroughly familiar with defendant’s handwriting, and sufficiently qualified to enable him to testify, there was no error in permitting him to testify that the handwriting of the alleged false instrument was that of the defendant. 4. —Same—Evidence—Beceipts—Book of Entry. . Upon trial for forgery there was no error in .permitting State’s witnesses to testify that no receipt had been issued by them on the day of the alleged offense, without introducing the books. 5. —Same—Circumstantial Evidence—Charge of Court. Where the possession and passage of the alleged forged instrument was shown by positive evidence, there was no error in the court’s failure to charge on circumstantial evidence. • ' 6. —Same—Reforming Judgment. Where the defendant was charged with fraudulently uttering and passing as true a false instrument in writing, and the jury found a general verdict that defendant was guilty, as charged in the indictment, but the judgment adjudged defendant guilty of the offense of forgery, the same will be properly reformed on appeal.
58 Tex. Crim. 403Gipson v. State (1910)
The opinion states the case.
58 Tex. Crim. 406Tamplin v. State (1910)
The opinion states the case.
58 Tex. Crim. 407Hawkins v. State (1910)
1. —Theft—Information. Where an information for theft was in the usual form, there was no error in overruling a motion to quash and in arrest of judgment. 2. —Theft—Statutes Construed—False Pretense—Consent—Allegation—Proof. It has been held in this State that under an ordinary indictment for theft charging a fraudulent taking without the consent of the owner, it is competent to prove the taking was with the owner’s consent, but obtained by false pretense. Following Dow v. State, 12 Texas Crim. App., 343, and other cases; and where the evidence showed this kind of a case under art indictment for ordinary theft and the court properly charged the law thereon, there was no error. 3. —Same—Charge of Court—Different Counts in Indictment. Where, upon trial for theft, the information contained three counts; one for swindling, one for ordinary theft, and one for theft by conversion as bailee, and the court in his charge to the jury withdrew all the counts except the one for theft, and the evidence showed that the defendant took the property from the owner with the owner’s consent but by false pretense, there was no error. 4. —Same—Requested Charges—Swindling. Where the defendant was charged in different counts with theft, swindling and conversion, and all were withdrawn except the count for theft, there was no error in the court’s refusal to submit defendant’s instruction on swindling. 5. —Same—Charge of Court—Singling Out Testimony. Upon trial for theft there was no error in the court’s refusal of defendant’s requested charge which singled out a particular fact and eliminated it from the consideration of the jury. 6. —Same—Charge of Court—Demand. Where, upon trial for theft, the evidence showed that the defendant under false pretense obtained a dollar from the prosecutor to buy some alcohol, there was no error in the court’s failure to instruct the jury that a demand would have to be made by the prosecuting witness for the return of the money. 7. —Same—Evidence—Plight. Upon trial for theft there was no error in admitting testimony that on the day after the defendant procured the dollar from the prosecuting witness, the latter with another met the defendant and the defendant ran.
58 Tex. Crim. 411Woodward v. State (1910)
The opinion states the case.
58 Tex. Crim. 412Woodward v. State (1910)
The opinion states the case.
58 Tex. Crim. 418Keith v. State (1910)
1. —Local Option—Indictment—Exception in Enacting Clause. The Act of the Thirty-first Legislature, page 284, making it a felony to engage in the occupation of selling intoxicating liquors in. local option territory, provided in the enacting clause an exception, and where the indictment merely alleged that the defendant unlawfully pursued the occupation, etc., of selling intoxicating liquors, and did not negative the fact that he was engaged in the sale of intoxicating liquors except as permitted by law, the indictment was bad on motion to quash. State v. Duke, 42 Texas, 455, and other cases. 2. —Same—Occupation Tax—Sale of Intoxicating Liquors. In this State an occupation tax is levied on persons selling whisky, as by law for certain purposes they are authorized to do, in local option counties and precincts. Following Snead v. State, 55 Texas Crim. Rep., 583; 117 S. W. Rep., 983, and other cases.
58 Tex. Crim. 420Ashley v. State (1910)
1. —Murder—Charge of Court—Aggravated Assault. Where, upon trial for murder, there was evidence that the defendant struck the deceased with a crowbar, only for the purpose of relieving himself and hid brother from the infliction of injury by the deceased, although they may have brought on the difficulty, and that there was no intent on the part of the defendant to kill the deceased, the court should have charged upon the law of aggravated assault; and this, although the court charged the jury that if the defendant struck the deceased with a crowbar, but they had a reasonable doubt that the defendant intended to kill him, to acquit the defendant. Ramsey, Judge, dissenting. 2. —Same—Evidence—Deadly Weapon—Opinion of Witness—Expert. Upon trial for murder there was no error in admitting testimony by the State’s witness that he had weighed and measured the crowbar, with which defendant struck the deceased, and that the same was a deadly weapon used in the hands of the defendant, it having been shown that said crowbar was about fifty inches long and weighed about eleven pound's. This was not the subject of expert testimony. Any witness could testify to this fact; besides the witness was not permitted to testify anything with reference to the wounds or how they were inflicted.
58 Tex. Crim. 425Malley v. State (1910)
1. —Burglary—Burglary of Private Residence—Statutes Construed, Article 845b, Penal Code, expressly provides that nothing in articles 839a or in 845a, which refer to a private residence, shall in any manner repeal articles 838 and 839, Penal Code, in respect to burglary. Burglary of a private residence is a separate and distinct offense from other characters of burglary mentioned in articles 838 and 839, Penal Code. 2. —Same—Offense Defined—Perce—Insufficient Evidence. Where the defendant was indicted under article 838, Penal Code, the burglarious entry must be made by either force, threats or fraud, and the party so entering the house in the daytime remain concealed with the intent of committing felony or the crime of theft, and where the evidence did not support the allegations of the indictment as alleged the same was insufficient to sustain a conviction. 3. —Same—Charge of Court—Breaking—Force. Where, upon trial for burglary under article 838, Penal Code, there was no attempt to show a breaking by any force, and the court charged only in regard to entry by force, there was reversible error. Following Edwards v. State, 36 Texas Crim. Rep., 387, and other cases. 4. —Same—Bill of Exceptions—Confessions. Where, upon appeal from a conviction of burglary, the bill of exceptions did not set out the alleged confession, and the objections thereto were not verified by the court, the same could not be considered.
58 Tex. Crim. 428Green v. State (1910)
1.—Murder—Argument of Counsel—Bill of Exceptions—Practice on Appeal. Where, upon appeal from a conviction of murder in the second degree, the bill of exceptions did not state that the hat referred to by counsel had never been introduced in evidence, but simply stated that he objected to the argument of State’s counsel with reference to the hat because it was not introduced in evidence, there was no error because the trial judge did not certify to the truth of the exceptions or the grounds of exceptions. 8.—Same—Charge of Court—Negligent Homicide. Where, upon trial for murder, the defendant took the stand and testified that the killing was accidental, and the court charged the jury that if the killing was accidental to acquit the defendant, and refused a charge on negligent homicide, there was no error. 8.—Same—Charge of Court—Manslaughter. Where, upon trial for murder, the evidence showed that the defendant found deceased in company with defendant’s wife and suspected the deceased to be her paramour, the court should have charged on manslaughter, notwithstanding the defendant claimed he killed deceased accidentally or in self-defense. Following Moore v. State, 15 Texas Crim. App., 1, and other cases. 4.—Same—Charge of Court—Murder in the Second Degree. Where, upon trial for murder, the court charged the jury that if they found that defendant unlawfully killed the deceased, and there was no testimony that raised murder in the first degree, then defendant would be guilty of murder in the second degree, the same was error. An unlawful killing embraces not only murder in the second degree, but manslaughter and negligent homicide.
58 Tex. Crim. 431Furgerson v. State (1910)
The opinion states the case.
58 Tex. Crim. 435Richmond v. State (1910)
The opinion states the case.
58 Tex. Crim. 438Lockhart v. State (1910)
1. —Disorderly House—Intoxicating Liquors—General Reputation—Conclusion of Witness. While it is permissible, in prosecutions for keeping disorderly house for the sale of intoxicating liquors without a license, to show the general reputation of the house with reference to it being a place where intoxicating liquors are sold, etc., it is not permissible to admit testimony not only of such general reputation but that the reputation extended so far as to show that such sale was without license; as the proof of no license can be made by direct proof. 2. —Same—Evidence—Internal Revenue License—Tenant. Upon trial for keeping a disorderly house for the sale of intoxicating liquors, etc., the court erred in not permitting the defendant to introduce in evidence internal revenue license issued to the tenant of defendant, although the date of said license was not exactly shown; it being shown that said tenant was in possession of said place as defendant’s tenant of such business. 3. —Same—Other Transactions—Contemporaneous Sales. Upon trial for keeping a disorderly house for the sale of intoxicating liquors, where the testimony as to the sale of intoxicating liquors by defendant was reasonably contemporaneous with the sales alleged in the indictment, there was no error, as this showed the relation of the defendant to the business in question. 4. —Same—Insufficiency of the Testimony. See opinion for evidence, in a prosecution for keeping a disorderly house for the sale of intoxicating liquors, which is held to be hardly sufficient to sustain a conviction.
58 Tex. Crim. 442Johnson v. State (1910)
The opinion states the case.
58 Tex. Crim. 443Newman v. State (1910)
1. —Murder—Charge of Court—Defense of Home—Statutes Construed. Where, upon trial for murder, the defendant’s testimony showed that the deceased (who was a stranger to defendant and his family) about midnight was approaching defendant’s house where the defendant resided with his family, apparently armed with a pistol; and that some parties had been prowling about defendant’s house that night apparently for some sinister purpose, the court should have given in charge to the jury as requested, article 675, Penal Code, under which defendant was justified in defending his home, and the court’s charge that defendant had a right to shoot in defense of himself or any member of his family was too restricted and not sufficient, as defendant had the right to defend his home as well as himself and family. 2. —Same—Evidence—Other Offenses. Upon trial for murder, it was reversible error to permit the State’s witness to testify that defendant, long subsequent to the homicide, had been indicted for adultery with defendant’s sister-in-law; there being nothing to indicate that the deceased approached the house to have carnal intercourse with said sister-in-law, or that they even knew each other.
58 Tex. Crim. 449Fuller v. State (1910)
The opinion states the case.
58 Tex. Crim. 451Coleman v. State (1910)
1. —Carrying Knucks—Like Offense—Witness—Newly Discovered Evidence. Where, upon trial for unlawfully carrying knuckles made of metal, defendant’s contention was, on appeal, that he had been deprived of the testimony of a codefendant who had been acquitted of a like offense, and it appeared from the record that said person had not been jointly indicted with the defendant and was not charged with the same offense, and that said person was in the courtroom during the trial and not used as a witness by the defendant, there was no ground for new trial. Neither was such testimony newly discovered evidence. 2. —Same—Sufficiency of the Evidence. Where, upon trial for unlawfully carrying knuckles, the evidence supported the conviction, there was no error.
58 Tex. Crim. 453Townser v. State (1910)
1. —Fornication—Information. Where, in a prosecution for fornication, the information was in the usual form, the same was sufficient, and there was no necessity to allege that defendant was a man and that the alleged female was a woman. 2. —Same—Accomplice—Corroboration—Insufficiency of the Evidence. Where, upon trial for fornication, there was no corroboration of the testimony of the female with whom the alleged offense occurred, to show either carnal intercourse or familiarity between the parties, or that they ever lived together, the conviction could not be sustained. Following Zollicoffer v. State, 16 Texas Crim. App., 312, and other cases.
58 Tex. Crim. 454Cassidy v. State (1910)
Occupation Tax—Selling Intoxicating Liquors in Quantities of one Gallon or less—Retail Liquor Dealer—License. Where, upon trial of selling intoxicating liquors in retail without license, under section four, of the Act of the Thirty-first Legislature, the evidence showed that, at best, the defendant made but one sale, and was not at all in the business of selling spirituous liquors, the same did not constitute defendant a retail liquor dealer carrying on a business of that sort under said statute.
58 Tex. Crim. 457Recen v. State (1910)
The opinion states the case.
58 Tex. Crim. 460Craven v. State (1910)
The opinion states the case.
58 Tex. Crim. 461Davis v. State (1910)
1. —Aggravated Assault—Motion for Hew Trial—Practice on Appeal. Upon appeal from a conviction of aggravated assault, where the motion for new trial simply complained that the court erred in his first, second and other paragraphs of his charge, the same was too general to be considered. 2. —Same—Argument of Counsel—Punishment. Upon trial of aggravated assault, where the evidence showed that defendant, who was in the vigor of health and manhood, committed an assault and battery on his old and decrepit father, there was no error in the argument of State’s counsel in insisting upon a conviction which included confinement in the county jail. 3. —Same—Punishment not Excessive. Where, upon trial for aggravated assault, • defendant was punished by a fine of $25 and ninety days confinement in the county jail, the same was not excessive, in view of the evidence that the party assaulted was an old and decrepit man, and defendant, his son, in the vigor of health and manhood.
58 Tex. Crim. 463Burns v. State (1909)
1. —Murder—Charge of Court—Mutual Combat—Abandonment of Difficulty. . Where, upon trial for murder, there was some evidence calling for a charge on mutual combat; but there was also evidence of an abandonment of the difficulty, and an effort on the part of defendants to have a peaceful settlement with deceased; the court in submitting the issue of mutual combat should have also given in charge the opposite or alternative side presented by the evidence of the defense, and should have submitted a charge on the abandonment of the difficulty, and the right of self-defense. 2. —Same—Charge of Court—Mutual Combat—Co-Defendants—Self-Defense. Where, upon trial for murder, against two defendants, who were brothers, the evidence showed that the right of self-defense of each differed from that of the other, and that one simply accompanied the other to meet the deceased for the purpose of making a peaceable settlement, when the deceased fired upon both and was killed by the shots of both, it was reversible error to so mingle the rights of the two defendants, as to place the right of self-defense of each on the same basis, and to apply the law of mutual combat to both. 3. —Same—Charge of Court—Principals—Self-Defense. Where, upon trial for murder, the evidence showed that the' deceased had insulted one of the defendants, who was unarmed, and had invited the latter to meet him at a certain time and place; and that defendant did so, asking his brother to accompany him, who went as a peacemaker; and when there was also evidence of defendant’s purpose of a peaceable settlement with deceased, it was reversible error, in the court’s charge on principals and self-defense, to predicate these charges on the theory that the defendants acted together for the purpose of mutual combat to fight deceased with deadly weapons, and to place their basis of defense on the same state of facts, and to confuse their rights of self-defense. 4. —Same—Charge of Court—Manslaughter. ■ Where, upon trial for murder, against two defendants, the facts of the case were not the same as to both, it was reversible error to so charge the jury on manslaughter that the agitation of the mind of one of the defendants furnished a criterion by which the other could be convicted of manslaughter or acquitted of murder in either degree. 5. —Same—Charge of Court—Co-Defendants—Confusing Rights. Where, upon trial for murder, against two defendants, the evidence did not place the defendants in the same light in regard to the homicide, it was reversible error to connect them so in the charge of the court as to make the idea prominent that they were both principals in the transaction, and to base their right of self-defense on the same plane. [Rehearing denied March 9, 1910.—Reporter.]
58 Tex. Crim. 472Gay v. State (1909)
The opinion states the case.
58 Tex. Crim. 482Dowell v. State (1910)
The opinion states the case.
58 Tex. Crim. 489Ripley v. State (1910)
1. —Murder—Charge of Court—Defense of Another. Where, upon trial for murder, the evidence showed that if the defendant fired a shot at all he fired from a different standpoint than where he was placed by the State’s evidence, and also tended to show that it was fired in defense of others, the court should have submitted a charge upon this phase of the case. 2. —Same—Charge of Court—Conspiracy. Where, upon trial for murder, the evidence tended to show that if the defendant fired it was after the fatal shot was fired by someone else, and that defendant was not acting with others who fired the fatal shot, this issue should have been submitted. 3. —Same—Charge of Court—Alibi. Where, upon trial for murder, the evidence raised the issue of alibi, the court should have given defendant’s requested charge thereon. 4. —Same—Evidence—Silence of Defendant. Where, upon trial for murder, the State was permitted to introduce testimony that after defendant was arrested he remained silent, the same was reversible error. Following Simmons v. State, 50 Texas Crim. Rep., 527 and other cases. 5. —Same—Evidence—Absent Witness—Ex Parte Affidavit. Upon trial for murder there was no error in admitting testimony in the shape of an ex parte affidavit that the State’s witness had left the State and was no longer a citizen thereof; and also that said witness stated when he left that he was going to another State to live. 6. —Same—Evidence—Testimony of Absent Witness—Predicate. Where, upon trial for murder, the State was permitted to reproduce testimony of an absent witness on the ground that he had left the State, but there was no evidence to show that the witness did so reside beyond the limits of the State at the' time of the trial and that the purported affidavit had been in fact signed by him, there was not a sufficient predicate laid to reproduce his testimony. 7. —Same—Evidence—Acts of Third Parties. Where, upon trial for murder, the defendant had introduced testimony to show that the party who fired from a certain direction at the time of the homicide was not the defendant, it was reversible error to permit the State on cross-examination to show that the defendant’s witness had not1 reported this fact to the officers at the time; the witness himself having been placed ' under arrest for the homicide but afterwards discharged.
58 Tex. Crim. 494Allen v. State (1910)
The opinion states the case.
58 Tex. Crim. 496Goodwin v. State (1910)
The opinion states the case.
58 Tex. Crim. 505Couch v. State (1910)
The opinion states the case.
58 Tex. Crim. 509Blount v. State (1910)
1. —Murder—Charge of Court—Manslaughter. Where, upon trial for murder,t the evidence did not raise the issue of manslaughter there was no error in the court’s failure to charge thereon. 2. —Same—Misconduct of Jury—Separation—Discretion of Court. Where the question of the misconduct of the jury, set out in defendant’s motion for new trial after a conviction of murder in the second degree, was tried by the court below who found adversely to the defendant’s contention, and there was no abuse of discretion shown, there was no reversible error.
58 Tex. Crim. 511Phelps v. State (1910)
The opinion states the case.
58 Tex. Crim. 512Hall v. State (1910)
Rape—Argument of Counsel—Statement of Facts. Where, upon appeal from a conviction of rape, there was no statement of facts on file, and the record did not show that any request was made for the withdrawal of the alleged objectionable remarks by State’s counsel, there was no reversible error.
58 Tex. Crim. 513Woodall v. State (1910)
The opinion states the case.
58 Tex. Crim. 518Shoemaker v. State (1910)
The opinion states the case.
58 Tex. Crim. 523Harris v. State (1910)
The opinion states the case.
58 Tex. Crim. 525McMillan v. State (1910)
1. —Murder—Charge of Court—Murder in the Second Degree—Too Restrictive. Where, upon trial for murder, the court in his charge on murder in the second degree eliminated from the jury every issue of manslaughter and self-defense arising upon the facts, and left no other alternative than a verdict of murder in the second degree, unless the jury found that the weapon used was not a deadly weapon, the same was reversible error. Following Clark v. State, 51 Texas Crim. Rep., 519, and other cases. 2. —Same—Charge of Cburt—Self-Defense—Provoking Difficulty—Limiting Self-Defense. Where, upon trial for murder, the evidence perhaps justified a charge of the court on provoking the difficulty, but the defendant’s testimony showed that the provocation came from the deceased, it was reversible error in the court’s charge on self-defense to qualify the same by a charge on provoking the difficulty; besides the charge was argumentative. Following Drake v. State, 46 Texas Crim. Rep., 448, and other cases. 3. —Same—Charge of Court—Improper Treatment—Gross Neglect. Where, upon trial for murder, there was evidence that the cause of the death of the deceased resulted from gross neglect and improper treatment after the wound was inflicted, and the court’s charge on this phase of the case did not present fully the matter involved, but the special requested instructions did, the latter should have been given.
58 Tex. Crim. 530Snowberger v. State (1910)
1. —Murder—Jury and Jury Law—Jury Wheel—Constitutional Law. The Act of the Thirtieth Legislature, page 269, known as the Jury Wheel ■ Law, relating to the selecting of juries in counties with cities of certain population, is constitutional, and this question is no longer one open to discussion. 2. —Same—Continuance—Practice on Appeal. Where a conviction of murder is reversed by the Court of Criminal Appeals on other grounds than the motion for continuance, the latter need not be considered. 3. —Same—Murder in the First Degree—Express Malice. Where, upon trial for murder, the State’s evidence showed that there was no assault or attempted assault by deceased; that he was unarmed and in his nightclothes and used no abusive language towards the defendant, and that defendant abused deceased and threatened to kill him, the same sustained a conviction of murder in the first degree, although the transaction occurred suddenly. 4. —Same—Charge of Court—Deadly Weapon—Want of Intent to Kill. Where, upon trial for murder, the evidence showed that defendant killed deceased with a knife, the length of the blade of which was about two and one-half inches long, and defendant testified that he did not intend to kill the deceased, but that he struck him with a knife to release the latter’s hold on him, the court should have charged article 717, Penal Code, with reference to the instrument used, etc., in committing the homicide. Following Washington v. State, 53 Texas Crim. Rep., 480. 5. —Same—Charge of Court—Adequate Cause. Where, upon trial for murder, there was evidence by the State that no assault was made by the deceased upon defendant, there was no error in the court’s charge on adequate cause that an assault or an assault and battery so slight as to show no intention to inflict pain or bloodshed is not deemed adequate cause; and this although defendant’s testimony showed that the deceased had struck the defendant with a stick causing both pain and bloodshed. 6. —Same—Charge of Court—Manslaughter. Where, upon trial for murder, the evidence showed on the part of the defense that the deceased struck defendant with a stick causing pain and bloodshed, following a former provocation between the parties in which deceased cursed defendant and threatened him with arrest, and had assaulted one of defendant’s companions, a charge of court on manslaughter which limited the adequate cause to the assault of the deceased upon defendant and failed to submit the other matters preceding said assault, was too restrictive. Following Brown v. State, 54 Texas Crim. Rep., 121, and other cases. 7. —Same—Charge of Court—Manslaughter—Deadly Weapon. Where, upon trial for murder, defendant testified that the deceased had struck him with a stick the weight of which had not been shown, there was no error in the court’s charge that if said stick was not capable of inflicting death or serious bodily injury, etc., the offense would be manslaughter, and the same did not tend to confuse the issues of manslaughter and self-defense. 8. —Same—Charge of Court—Self-Defense—Grouping Facts. Where, upon trial for murder, the charge of the court on self-defense applied the law to all the salient defensive matter in the case, and upon real and apparent danger from defendant’s standpoint, the objection that the same did not affirmatively apply the law to the facts was untenable. 9. —Same—Charge of Court—Resort to Other Means than Killing—Self-Defense. Where, upon trial for murder, the evidence raised no suggestion which would have made it incumbent upon defendant to resort to other means to avoid the killing, but showed that the deceased made an assault upon defendant with a stick under circumstances which, if believed by the defendant from his standpoint, raised the issue of justifiable homicide, it was reversible error in the court’s charge to instruct the jury that in case of justifiable homicide in protection of the person, all other means must be resorted to by the accused to prevent the killing. Following Baltrip v. State, 30 Texas Crim. App., 545.
58 Tex. Crim. 545Cox v. State (1910)
The opinion states the case.
58 Tex. Crim. 546Pettus v. State (1910)
The opinion states the case.
58 Tex. Crim. 550Robinson v. State (1910)
1. —Murder—Continuance—Bill of Exceptions. Where, upon appeal from a conviction of murder, no bill of exceptions appeared in the record reserving the objection to the court’s action in overruling an application for a continuance, the same could not be considered; besides it appeared from the record that the testimony of the absent witness was immaterial. 2. —Same—Representation by Counsel—Motion for New Trial. Where, upon appeal from a conviction of murder, the motion for new trial was not sworn to, and there was nothing in the record to show whether defendant was forced to trial without the necessary preparations for his defense by himself and counsel, there was no error. 3. —Same—Sufficiency of the Evidence—Death Penalty. Where, upon trial for murder, the State’s witness, whp was an accomplice, was not only corroborated by other testimony showing that the defendant fired the fatal shot, but the defendant admitted his guilt while in jail, to which statement the defendant did not object on the trial, and the evidence showed that the homicide was committed by the defendant in an attempted robbery, a verdict assessing the death penalty will not be disturbed. 4. —Same—Misconduct of Jury—Separation of Jury. Where, upon trial of murder, the defendant complained in his motion for new trial of the separation of the jury during the trial of the case, and there was no evidence on the trial of this issue, that during the incidental separation of the jury there was any circumstance, or even a suspicion that such separation could have affected the verdict, or thrown a shadow upon the impartiality and fairness of the trial, there was no error. Following Ogle v. State, 16 Texas Crim. App., 361, and other cases. 5. —Same—Fair and Impartial Trial—Murder in First Degree. Where, upon conviction of murder in the first degree assessing the death penalty, there was nothing in the record which suggested that there was anything unfair or partial in the trial of the case, and that the defendant was tried under due form of law, the judgment must be affirmed. 6. —Same—Reforming and Correcting Judgment—Statutes Construed. Under article 904, Code Crim. Procedure, the Court of Criminal Appeals may reform and correct the judgment below as the law in the nature of the case may require; and where the judgment below, on a trial of murder, failed to show that any evidence was submitted, that the jury was charged by the court or that the verdict of the jury was returned into open_ court, the Court of Criminal Appeals is authorized—these matters all appearing of record—to add these requisites to the judgment so as to make it complete as required by article 831, Code Crim. Procedure, and it is not necessary to refer this matter to the trial court under article 837, Code Criminal Procedure, to reform such judgment at a succeeding term of said court. Following McCorquodale v. State, 54 Texas Crim. Rep., 344. 7. —Same—Form of Judgment as Corrected on Appeal. See opinion for form of judgment as corrected and reformed in the Court of Criminal Appeals.
58 Tex. Crim. 562Tilmyer v. State (1910)
1. —Murder—Charge of Court—Serious Bodily Injury. Where, upon trial for murder, the evidence showed that it could not possibly be anticipated that the preparation of the deceased to attack the defendant could be other than to take life, the omission in the court’s charge that the defendant had a right to defend himself against the infliction of serious bodily injury was not reversible error. 2. —Same—Charge of Court—Self-Defense—Intent. Upon trial for murder, where the evidence showed threats by the deceased against defendant; that the latter secured a gun for the purpose of protecting himself, and that when he came upon the deceased, saw the latter make a demonstration as if to draw a pistol, when he killed him, it was reversible error to so frame the court’s charge as to eliminate self-defense in the event the deceased made an attack upon defendant, before the latter carried out his effort or intent to kill the deceased, even if defendant had such intent in arming himself. 3. —Same—Charge of Court—Defensive Theory. When an issue is presented by the defense in a felony case the same must be submitted in a proper charge of the court, although the court may believe the same to be false.
58 Tex. Crim. 564Winkler v. State (1910)
1.—Burglary—Evidence, Materiality of. Where, upon trial for burglary, the State attempted to show that some of the alleged stolen money was returned to the owner and that the defendant directed a State’s witness where to get said money, such testimony was not admissible unless the defendant could be connected with it. 2. —Same—Charge of Court—Day and Night Burglary—Force. Where, upon trial for burglary, the court submitted the case to the jury upon the theory of a breaking, and instructed them that if the breaking occurred in the night-time or the daytime, and that thereby defendant entered the house and took the money he would be guilty, without applying the question of force, which was raised by the evidence, the same was reversible error. 3. —Same—Charge of Court—Want of Consent. Where the State relied upon circumstances to show a breaking, and the evidence was not clear as to whether the house was entered at night or in the daytime, and the charge of the court omitted the question of force, and practically instructed the jury that any entry of the house would constitute burglary if done without consent of the occupant, the same was reversible error. 4. —Same—Charge of Court—Confessions—Aperture. Where, upon trial for burglary, the State introduced the confession of the defendant which among other things showed that he did not open the window of the house, but that he found it open, and reached in and took the money through the open window, the court should have charged the jury that if this was the case and the opening was not made by the defendant, to acquit him. Following Pratt v. State, 53 Texas Crim. Rep., 281, and other cases. 5. —Same—Evidence—Opinion of Witness. Upon trial of burglary it was reversible error to permit one of the owners of the alleged property to testify that she and her husband were the only parties who knew there was gold in the house; this was simply a conclusion of the witness. 6. —Same—Charge of Court—Theft—Felony. Where the indictment charged burglary with the intent to commit the crime of theft, it was error in the court’s charge in defining burglary that the offense consisted in entering the house, etc., with the intent to commit a felony or the crime of theft.
58 Tex. Crim. 569Daniels v. State (1910)
The opinion states the case.
58 Tex. Crim. 571Tuller v. State (1910)
The opinion states the case.
58 Tex. Crim. 574Simmons v. State (1910)
The opinion states the case.
58 Tex. Crim. 577Tidwell v. State (1910)
The opinion states the case.
58 Tex. Crim. 579Henderson v. State (1910)
The opinion states the case.
58 Tex. Crim. 581Henderson v. State (1910)
Assault to Murder—Charge of Court—Limiting Impeaching Testimony. Where, upon trial for assault to murder, the State introduced impeaching testimony against one of the main defendant’s witnesses by which he established his theory of self-defense, and said impeachment was a direct attack on the said witness’ testimony and affirmatively showed that the defendant was the attacking party, it was reversible error not to have limited this testimony in the court’s charge to purposes of impeachment. Following Paris v. State, 35 Texas Crim. Rep., 82, and other cases.
58 Tex. Crim. 583Poston v. State (1910)
The opinion states the case.
58 Tex. Crim. 585Darnell v. State (1910)
The opinion states the case.
58 Tex. Crim. 596Wilson v. State (1910)
1. —Burglary—Insanity—Practice in District Court. Where, upon trial of burglary, the defendant filed a plea setting up insanity at the time of the commission of the offense, and asked that this should be first tried; whereupon a jury was empaneled, and after some testimony was introduced the jury was discharged and another jury, consisting of the same jurors, was empaneled and the plea of insanity was submitted with the general plea- of not guilty, and the court properly submitted the issue of insanity in his charge, there was no error. Following Chase v. State, 41 Texas Crim. Rep., 560. 2. —Same^-Charge of Court—Insanity—Preponderance of Evidence. When interposed as a defense by one accused of a crime, the burden of proof is on the accused to show insanity, and this must be clearly proved by a preponderance of the evidence, and where the court, in a trial of burglary, so charged the jury, there was no error. 3. —Same—Evidence—Bill of Exceptions. Where, upon appeal from a conviction of burglary, the appellant complained that by the question of the State’s counsel to the witness the jury was given to understand that the defendant had formerly been tried for an offense, but the bill of exceptions failed to state the answer to the question propounded by State’s counsel, there was no error. • 4. —Same—General Deputation of Insanity. Upon trial for burglary, where defendant plead insanity he could not prove the same by general reputation, or of what people said about it. Following Ellis v. State, 33 Texas Crim. Rep., 86, and other cases. [Behearing denied April 19, 1910.—Beporter.]
58 Tex. Crim. 598Cooper v. State (1910)
The opinion states the case.
58 Tex. Crim. 600Miller v. State (1910)
The opinion states the case.
58 Tex. Crim. 604Lott v. State (1910)
1. —Local Option—Statement of Facts—Certiorari. Where, upon appeal from a conviction of a violation of the local option law, the case was affirmed for the want of a statement of facts, and it appearing upon motion for rehearing that a statement of facts was filed in the case in due time, but left out of the record inadvertently, a writ of certiorari was grante'd to correct the record and the affirmance set aside. 2. —Same—Charge of Court—Principals—Misdemeanor. In misdemeanor cases the distinction between principals and accomplices, made in felony cases, does not apply; and where the court instructed the jury, upon trial of a violation of the local option law, that it was not necessary for the defendant to have been bodily present when the offense was committed, there was no error. Following Houston v. State, 13 Texas Crim. App., 595. 3. —Same—Evidence—Arrest—Confessions—Bill of Exceptions. Where, upon appeal from a violation of the local option law, it did not appear that defendant was under arrest when he made certain declarations to the county attorney, and the objection to the testimony was that the declarations were not a voluntary confession, the same could not be considered. ■
58 Tex. Crim. 608Kennedy v. State (1910)
The opinion states the case.
58 Tex. Crim. 611Figaroa v. State (1910)
1. —Murder—Evidence—Motive—Conspiracy—Hearsay. Upon trial for murder, it was reversible error to introduce in evidence testimony with reference to a case pending in the Federal Court against a party who was not shown to have acted with the defendant or anyone else in the commission of the crime, for the purpose of showing conspiracy and motive; especially where the court charged the jury that no conspiracy existed between said party and the defendant to kill the deceased. 2. —Same—Charge of Court—Conspiracy—Declarations of Third Parties. Where, upon trial for murder, there was no evidence connecting certain third parties with the killing, and showed no connection between them and the defendant in the homicide; and the court instructed the jury to this effect," but in another paragraph of his" charge instructed the jury that they could use the acts of these parties against anyone who might have killed deceased for the purpose of arriving at a possible" motive, etc., the same was reversible error. 3. —Same—Evidence—Motion to Dismiss. On trial for murder, where the district attorney filed a motion to dismiss the prosecution against other defendants in the case, stating therein that State’s counsel believed the defendant to be the person who committed the murder, etc., and that the other parties were accessories, it was reversible error to permit the State to introduce said motion in evidence. 4. —Same—Evidence—Declarations of Deceased—Res Gestae. Upon trial of murder, where it appeared that the State introduced and read in evidence a certain writing of the deceased on.an envelope found in his pocket possibly some six hours after he was shot, there being no predicate made for the introduction of dying declarations, the same was not res gestae. -
58 Tex. Crim. 619McNary v. State (1910)
local Option—Charge of Court—Sale—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, there was some conflict in the evidence whether the defendant intended to sell the alleged whisky, and the court fairly presented said issue to the jury, there was no error.
58 Tex. Crim. 621Alexander v. State (1910)
1. —Assault with Intent to Rape—Indictment—Ravish—Want of Consent. Upon trial for assault with intent to rape, where the indictment charged that the defendant made an assault upon the alleged female with intent then and there to ravish and have carnal knowledge of her, she being under the age of fifteen years and not then and there being the wife of defendant, the same was sufficient; and it waso not necessary that the indictment should allege that the assault was made with force and without the consent of the assaulted female. Following Croomes v. State, 40 Texas Crim. Rep., 672. 2. —Same—Charge of Court—Definition of Offense—Force. Where, upon trial of assault with intent to rape upon a female under the age of consent, the court in his charge defined a battery, and applied the law to the facts, there was no error in the court’s failure to define force; as the evidence showed that the alleged female was under the age of fifteen years. 3. —Same—Charge of Court—Aggravated Assault. Where, upon trial for assault with intent to rape, the evidence was conflicting as to whether the transaction constituted an assault with intent to rape with the specific intent to commit said offense, the court should have charged the jury on aggravated assault.
58 Tex. Crim. 624Deneaner v. State (1910)
1. —Murder—Charge of Court—Use of Deadly Weapon—Presumption. Where, upon trial for murder, the evidence showed that the husband of the deceased shot at the codefendant of the defendant with a shotgun but missed him, when said codefendant returned the fire and by mistake killed the deceased, it was reversible error not to have given in charge to the jury article 676, Penal Code, on the presumption of the weapon used by the husband of the deceased. Following Yardley v. State, 50 Texas Crim. Rep., 644. 2. —Same—Evidence—Res Gestae—Self-Serving Declarations. On trial of murder, where the evidence showed that the defendant and several of his codefendants had left the scene of the homicide, and some fifteen minutes thereafter had a conversation about it, there was no error in not admitting their acts and declarations with reference to the homicide, as this was not res gestae but self-serving declarations. Following Foster v. State, 8 Texas Crim. App., 248, and other cases. 3. —Same—Evidence—Declarations and Acts of Third Parties—Attorney and Client. On trial of murder, there was no error in refusing to admit testimony as to the advice of counsel given to the codefendant a day or two before the homicide with reference to his rights in respect to trespass on his crops; the same being too remote. 4. —Same—Evidence—Trial of Codefendant—Failure to Introduce Witnesses. Upon trial of murder, it was error to permit the State’s counsel on cross-examination of defendant’s witnesses, to show that they were not introduced as witnesses on the trial of a codefendant; the defendant having neither the power to adduce nor prevent the introduction of such testimony. 5. —Same—Evidence—Impeaching Witness. Where, upon trial of murder, the defendant had laid a predicate to impeach a State’s witness with reference to her statement that the husband of the deceased had not fired at the defendant and his codefendant at the time of the homicide, it was reversible error not to admit testimony to impeach the said witness’ statement. Following Rippey v. State, 29 Texas Crim. App., 37, and other cases. 6. —Same—Charge of Court—Principals—Words and Phrases, Where, upon trial of murder, the evidence did not show that the defendant spoke or made any gestures to encourage his codefendants at the time of the shooting, the court in his charge on principals should not have used the phrase “words or gestures.” 7. —Same—Charge of Court—Unintentional Shooting—Words and Phrases. Upon trial of murder, where the court in charging upon the law of murder in the second degree as applied to the facts, which showed that one of the codefendants while intending to fire at the husband of the deceased killed the latter, the court should have used the word “unintentionally” instead of the words “by mistake.” 8.—Same—Charge of Court—Conspiracy, Where, upon trial of murder, the evidence raised the issue of conspiracy between the defendant and his codefendant, there was no error in the court’s charge that they could not consider the acts and declarations of said codefendants against the defendant, unless they were made during and in pursuance of the conspiracy.
58 Tex. Crim. 631Gaines v. State (1910)
1. —Murder—Advancing Case—Practice on Appeal. Where, upon appeal from a conviction of manslaughter, the record showed that appellant was on bail, the fact that he was a member of the Legislature, and that the latter might be called together before his appeal was disposed of, was no reason for advancing his case. 2. —Murder—Evidence—Defamatory Circulars—Truth of Publication, Where, upon trial for murder, the defense introduced in evidence certain printed circulars published by the deceased, which charged defendant with failing to pay his occupation tax and to work the streets, and that warrants for his arrest had been issued against him, and pleas of guilty had been entered by him, and defendant claimed that said circulars were a slander on his character, and so aroused his passion that his mind was incapable of cool reflection, etc., there was no error to permit the State, on cross-examination of defendant, to show that the circulars were substantially true, so the jury could determine the issue as to who was the aggressor in the controversy between them. 3. —Same—Evidence—Telegrams—Secondary Evidence. Upon trial for murder, it was reversible error to permit the State to introduce in evidence a certain telegram purporting to be that of the defendant with the letters “D. H.” upon it, and permitting the witness to testify that these letters indicated that the telegram had not been paid for by the defendant, this being an issue in the case. 4. —Same—Evidence—Dying Declarations—Shorthand Pacts. Upon trial for murder, there was no. error in admitting in evidence the written statement of the deceased made shortly before his death, and in which the deceased among other things stated that the defendant was trying to get out his gun at that time, as this statement, in connection with the entire statement made by the deceased, was not the expression of an opinion but a shorthand rendering of the facts. Following Douglass v. State, 54 Texas Crim. Rep., 639, and other cases. Si—Same—Charge of Court—Provoking Difficulty, Upon trial for murder, where there were such facts and circumstances in evidence that raised the issue of provoking the difficulty, there was no error in the court to charge the law upon this issue. 6.—Same—Self-Defense—Provoking Difficulty—Intent—Charge Requested. Where, upon trial for murder, the court’s charge required the jury to believe from the evidence that the defendant had formed a design to kill the deceased, had armed himself and sought a meeting with the _ latter for the purpose of taking his life, and that having done so defendant did the acts and made the statements which under the circumstances were calculated to and did provoke the deceased to attack him, before the defendant would be guilty of culpable homicide, such charge logically carried with it the condition that the acts done by the defendant must have been intended to provoke the difficulty, and there was no error in refusing a requested charge thereon. 7. —Same—Charge of Court—Self-Defense—All the Evidence, Where, upon trial for murder, the evidence raised the issue of provoking the difficulty and also that of self-defense, a contention by defendant that the dying declarations of deceased showed that the defendant did not act in self-defense, and therefore a charge on provoking the difficulty was precluded and should not have been given, was untenable, as the court must charge on issues arising from all the evidence. 8. —Same—Charge of Court—Provoking Difficulty—Converse Proposition—Affirmative Charge. Where, upon trial for- murder, the evidence raised the issue of provoking the difficulty, but there was also evidence that the defendant did not make any statement or do any act reasonably calculated and intended to provoke a difficulty, but that he acted in self-defense, and the court charged on provoking the difficulty but did not charge the converse of the proposition on the defendant’s theory of the case, the same was reversible error. Following Airhart v. State, 51 S. W. Rep., 214, and other cases. 9. —Same—Charge of Court—Abandonment of Difficulty. Upon trial for murder, where the issue of abandonment of the difficulty was not raised by the evidence, the facts showing but one continuous transaction, there was no error in the court’s failure to charge thereon. 10. —Same—Charge of Court—Right of Going Armed—Explanation—Peaceable Manner. Upon trial for murder, where the evidence showed that the defendant called upon the deceased for an explanation of the latter’s conduct in distributing certain defamatory circulars, it was reversible error to instruct the jury that the defendant had the right to arm himself and seek an explanation of the deceased in a peaceable manner, with reference to the latter’s conduct. Following King v. State, 51 Texas Crim. Rep., 208. Ramsey, Judge, dissenting. 11. —Same—Charge of Court—Serious Bodily Injury—Threats. Where, upon trial for murder, the evidence raised the issue of self-defense and threats by the deceased, it was reversible error in the court’s charge in omitting to instruct the jury that the defendant had the right of self-defense against the apprehension of serious bodily injury as well as in the preservation of his life, especially where the evidence showed that the means used by the deceased would not necessarily have caused the death of the defendant. Following McDowell v. State, 55 Texas Crim. Rep., 596.
58 Tex. Crim. 646Shaffer v. State (1910)
The opinion states the case.
58 Tex. Crim. 647Shaffer v. State (1910)
The opinion states the case.
58 Tex. Crim. 651Mays v. State (1910)
1. —Burglary—Continuance—Testimony not Probably True. Where, upon appeal from a conviction of burglary, it appeared from the record that the alleged absent testimony would have been probably untrue, and that it was not of such character as would have changed the result of the trial, there was no error. 2. —Same—Child Witness—Incompetency. Where, upon trial for burglary, it appeared that the child witness offered by defendant was a mere infant, unable to realize the meaning of an oath, it was incompetent to testify. 3. —Same—Charge of Court—Bequested Charges. Where, upon trial for burglary, there was evidence that the defendant found the alleged stolen property, and the court submitted the defendant’s requested charge on this issue, there was no error in the court’s refusal to submit other requested charges on the same issue. ■ 4. —Same—Bequested Charges—Practice. Wherever an issue is once submitted by the court fairly, in language chosen by defendant, it would seem manifestly unnecessary, if not indeed improper, to elaborate the same matter in additional instructions; this would only confuse and lend undue emphasis to the matter covered thereby. 5.—Same—Charge of Court—Forcible Entry. Where, upon trial for burglary, the evidence showed that all the openings of the alleged burglarized house were closed, there was no error in refusing the requested charge that, if defendant entered through an open door without using force, he could not be convicted of burglary.