59 Tex. Crim.

Volume 59 — Texas Criminal Reports

162 opinions

59 Tex. Crim. 1Elliott v. State (1910)
Appeal from the County Court of Clay. Tried below before the Hon. S. A. Denny. Appeal from a conviction of gaming; penalty, a fine of $15. The opinion states the case.
59 Tex. Crim. 2Rutherford v. State (1910)
, The opinion states the case.
59 Tex. Crim. 3Ellison v. State (1910)
59 Tex. Crim. 6Green v. State (1910)
Edward Dwyer, Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 9Bundick v. State (1910)
Appeal from the District Court of Matagorda. Tried below before the Hon. Wells Thompson. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life. The opinion states the case.
59 Tex. Crim. 11Johnson v. State (1910)
Appeal from the County Court of Bell. Tried below before the Hon. W. S. Shipp. Appeal-from a conviction of unlawfully carrying a pistol; penalty, a fine of $100. The opinion states the case.
59 Tex. Crim. 14Kelly v. State (1910)
The opinion states the case.
59 Tex. Crim. 17Bronson v. State (1910)
Tried below before the Hon. Bobert B. Seay. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 23Boyman v. State (1910)
1. —Burglary—Indictment—Precedent. Where, in a prosecution for burglary, the indictment followed the precedents, the same was good on motion to quash. 2. —Same—Charge of Court—Requested Charges. Where, upon trial for burglary, the court fairly submitted all the issues raised by the evidence, and also defendant’s requested charges, there was no error. 3. —Same—Evidence—Confessions—Fruit of Crime. Where, upon trial of burglary, the confessions of defendant as admitted in evidence were not made under the provisions of the statute, the same were not admissible; yet where such confessions contained a statement of fact that was found thereafter to be true, and led to the recovery of the alleged stolen property, the same were admissible on this ground, and there was no error to show that the defendant handed the key of his trunk to his father' and directed him to get and return the goods, which the latter did; it being. shown that said father was beyond the jurisdiction of the court. 4. —Same—Evidence—Tracks—Comparison of Foot Prints. Upon trial of burglary, there was no error in admitting testimony that the witness measured certain tracks and compared them with the tracks and shoes of the defendant and his codefendant, and that he noticed the same peculiarity on the shoes that he noticed in the tracks, the witness expressing no opinion as to whether the tracks were made by the defendant or his codefendant. Following Tankersley v. State, 51 Texas Crim. Rep., 170. 5. —Same—Sufficiency of the Evidence. Where, upon appeal from a conviction of burglary, the evidence sustained the conviction, the same will not be disturbed.
59 Tex. Crim. 29Hinman v. State (1910)
1. —Seduction—General Allegations—Continuance. Where, upon trial of seduction, the allegations in the defendant’s application for continuance as to what was expected to be proved by the absent witnesses was not specifically averred, and the same was probably untrue, there was no error in overruling the motion. 2. —Same—Other Acts of Intercourse—Birth of Child. Where, upon trial of seduction, the prosecutrix testified that the first act of intercourse occurred some eleven months before the child was born, there was no error in admitting other acts of carnal intercourse between the parties, in explanation of the fact of the birth of the infant. 3. —Same—Evidence—leading Question. Upon trial of seduction, there was no error in permitting the State’s counsel to ask the prosecutrix whether she would have yielded to the sexual embraces of defendant had he not promised to marry her, and to which she answered in the negative. Following Snodgrass v. State, 36 Texas Crim. Rep., 207. 4. —Same—Evidence—Declarations by Defendant. Where, upon trial for seduction, the prosecutrix had testified that she had carnal intercourse with the defendant on his promise to marry her, there was no error in admitting the declarations of the defendant that he was the cause of the pregnancy of the prosecutrix and that he contemplated stealing a girl and that he needed some help, it being also in evidence that this declaration was made at the time when defendant was going with and courting the prosecutrix, and that her father objected to the marriage. Following Merrell v. State, 70 S. W. Rep., 979, and other cases. 5. —Same—Evidence—General Reputation. Where, upon trial of seduction, no attack had been made on the credibility of defendant’s witnesses, there was no error in not permitting defendant to prove the general reputation for truth and veracity of said witnesses. Following Graham v. State, 57 Texas Crim. Rep., 104. 6. —Same—Charge of Court—Definition of Offense—Requested Charges. Where, upon trial of seduction, the court correctly defined the offense of seduction and applied the law to the facts in evidence, there was no error in refusing requested instructions on the same subject. 7. —Same—Requested Instructions—Abandonment of Engagement—Offer to Marry. The rule of law is that if any man in this State is guilty of acts which under the law constitute seduction, that no act of his less than marrying his victim, or in good faith offering to marry her, would be a bar to a conviction; and on trial of seduction there was no error in the court to so instruct the jury and to refuse a requested charge that a subsequent abandonment of the marriage agreement was a defense. Following Merrell v. State, 42 Texas Crim. Rep., 19; 57 S. W. Rep., 289, and other cases. 8. —Same—Sufficiency of the Evidence. Where, upon trial of seduction, the evidence fully sustained the conviction, the same will not be disturbed. 9. —Same—Charge of Court—Practice on Appeal—Accomplice Testimony. Where there was no objection to the court’s charge on accomplice testimony in the court below, the same could not be considered on appeal.
59 Tex. Crim. 36Marsden v. State (1910)
Tried below before the Hon. Harvey Walker. Appeal from a conviction of aggravated assault; penalty, a fine of $100. The opinion states the case.
59 Tex. Crim. 39Doyle v. State (1910)
Tried below before the Hon. Robert B. Seay. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 44Foster v. State (1910)
Tried below before the Hon. A. G. Board. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100. The opinion states the case.
59 Tex. Crim. 46Rutherford v. State (1910)
Tried below before the Hon. J. P. Spencer. Appeal from a conviction of gaming; penalty, a fine of $10. The opinion states the case.
59 Tex. Crim. 47Roberts v. State (1910)
The opinion states the case.
59 Tex. Crim. 51Lewis v. State (1910)
Tried helow before the Hon. Eobert B. Seay. Appeal from a conviction of murder in the second degree; penalty, fifty-five years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 55Tachini v. State (1910)
The opinion states the case.
59 Tex. Crim. 60Doyle v. State (1910)
1. —Local Option—Election Contest—Orders of Commissioner’s Court—Eresump- ’ tian., In the absence of a contest it will be assumed that the judgment and decree putting local option in force, and the proclamation of the county judge had the effect to institute the local option law in the county of the prosecution; and this presumption is conclusive. 2. —Same—Jurisdiction of County Court—Statutes Construed. The Act of the Thirty-first Legislature making the sale of intoxicating liquors a felony, was not intended to apply and did not apply in counties which had theretofore adopted local option. Following Lewis v. State, recently decided. 3. —Same—Repeal of Law—Felony. The Act of the Thirty-first Legislature, making the sale of intoxicating liquors a felony, does not repeal the local option law in counties which have held such local option elections prior to the taking effect of said last named Act. 4. —Same—Sufficiency of the Evidence. Where, upon appeal from a violation of the local option law, the same was sustained by the evidence, the verdict will not be disturbed.
59 Tex. Crim. 62Ward v. State (1910)
1.—Murder—Charge of Court—Manslaughter. Where, upon trial for murder, the evidence showed that there was nothing which occurred at the time of the shooting on which to base a charge of manslaughter, and that if defendant’s statement was to be believed, self-defense was the only issue raised, there was no error in the court’s failure to charge on manslaughter. 2. —Same—Defense of Property—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence showed that on the morning of the day of the homicide the deceased shot two dogs belonging to the defendant, and that the trouble grew out of this circumstance, but the shooting did not take place until the afternoon, there was no error in the court’s failure to charge on manslaughter. An offense against one’s property even if wrongful, does not raise the issue of manslaughter unless there are other circumstances in evidence raising this issue. 3. —Same—Charge of Court—Words and Phrases—Self-Defense. Where, upon trial of murder, the court in his charge on self-defense used the phrase “great bodily harm” instead of “serious bodily injury,” but the charge as a whole could not possibly have misled the jury by this language, there was no error. 4. —Same—Charge of Court—Provoking Difficulty. Where, upon trial of murder, there was evidence strongly tending to show that it was not the defendant’s purpose in calling upon deceased, merely to demand an explanation touching the killing of his dogs, etc'., and the court charged the jury that if the defendant called upon the deceased for an explanation and not to provoke a difficulty, to acquit him. There was no error. 5. —Same—"Verbal Instruction to Jury—Practice in District Court. Where, upon trial of murder, the court after delivering his written instructions to the jury, gave them a verbal admonition as to how they must conduct themselves as jurors in the trial of the case, in which among other things he told them that, to be guilty of disobedience or violation of his instructions might cause a reversal of the case, there was no error. 6. —Same—Continuance—Bill of Exceptions. Where, upon appeal from a conviction of murder, there was no bill of exceptions reserved to the court’s action in overruling a motion for a continuance, the same could not be considered. 7. —Same—Sufficiency of the Evidence. Where, upon appeal from a conviction of murder in the second degree, the same was sustained by the evidence, the verdict will not be disturbed.
59 Tex. Crim. 68Moss v. State (1910)
Murder—Charge of Court—Self-Defense—Interference of Deceased. Where, upon trial for murder, the evidence showed that while defendant and another had an altercation, the deceased interfered and was killed by the defendant; and the defendant’s testimony showed that the deceased not only interfered in the altercation between the defendant and the other party, but that when the altercation had ceased between the defendant and said third party, the deceased assaulted the defendant with a piece of a fence rail and struck the defendant with it, and that then the defendant cut him with a knife which killed the deceased, the court should have submitted this issue to the jury, as requested, although the court’s general charge on self-defense was sufficient.
59 Tex. Crim. 73Carter v. State (1910)
Tried below before the Hon. John W. Goodwin. Appeal from a conviction of seduction; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 82Joseph v. State (1909)
1. —Murder—Evidence—Credibility of Witness. Where, upon trial for murder, the defendant was permitted to interrogate a State’s witness fully as to how much intoxicating liquor he had drunk on the night preceding the homicide, and on the day of the same, and as to whether he had slept any on said night preceding the homicide, to show his mental condition, there was no error in sustaining an objection to a question by the defendant as to what places he went to. 2. —Same—Evidence—Mental Condition of Defendant. Upon trial for murder there was no error in excluding testimony with reference to a spell of sickness which defendant had some time before the trial, there being nothing to show that defendant’s mind was not in a condition to tell what he knew about the facts of the case. 3. —Same—Evidence—Immaterial Testimony. Where, upon trial for murder, the rejected testimony with reference to defendant’s state of health threw no light on the guilt or innocence of defendant, there was no error. 4. —Same—Bill of Exceptions—Practice on Appeal. Upon appeal from a conviction of murder, where the bill of exceptions objected in a general way to the charge of the court, the same was insufficient to be considered. 5. —Same—Charge, of Court—Aggravated Assault—Deadly Weapon. Where, upon trial for murder, the character of the wound inflicted, the deadly weapon and all the evidence in the case excluded the issue of aggravated assault, there was no error in the court’s failure to charge thereon. 6. —Same—Jury and Jury Daw—Impartial Juror. Where, upon trial for murder, the defendant objected to a certain juror after the trial on the ground that he was partial, and it appeared that the juror had simply expressed himself, before he was taken .on the jury, that he knew too much about the ease to be taken on the jury, and there was nothing to indicate any prejudice on his part, there was no error. 7. —Same—Sufficiency of the Evidence. ■ Where, upon appeal from a conviction of murder in the second degree, it appeared from the record that the evidence sustained the conviction,, there was no error. 8. —Same—Charge of Court—Manslaughter—Practice on Appeal. Where, upon appeal from a conviction of murder in the second degree, there appeared no exception to the court’s charge on manslaughter in the motion for new trial, or otherwise, there was no error.
59 Tex. Crim. 86McAdams v. State (1910)
The opinion states the case.
59 Tex. Crim. 88Hickman v. State (1910)
1. —Keeping Disorderly House—Evidence—Reputation. Upon trial of keeping a disorderly house for purposes of prostitution, there was no error in admitting evidence showing the character of the inmates, their conduct and conversations had with them (in the absence of the defendant), showing invitations to have sexual intercourse, etc. This testimony was admissible to show the character of the house. 2. —Same—Charge of Court—Requested Charge. Where, upon trial of keeping a disorderly house, the charge of the court was substantially that requested by the defendant, and correctly submitted the issues in the case, there was no error.
59 Tex. Crim. 90Moseley v. State (1910)
1. —Theft of Hog—Charge of Court—Circumstantial Evidence. Where, upon trial of theft of a hog, the court in his charge on circumstantial evidence instructed the jury that each fact necessary to establish the guilt of the accused must be proved by competent evidence beyond a reasonable doubt, and the facts and circumstances proved should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and producing in the minds of the jury a reasonable and moral certainty that the accused committed the offense; and that it was not sufficient that the circumstances should render probable his guilt, but that the evidence must be so strong and conclusive as to exclude every other reasonable hypothesis than his guilt, the same was sufficient. 2. —Same—Evidence—Tracks. Where, upon trial for theft of a hog, the witness testified as to tracks of a man, and did not give any opinion but simply stated the size of the tracks; that they were made by a barefoot and "that this track was about the size of defendant’s foot, etc., the same were admissible. 3. —Same—Sufficiency of the Evidence. Where, upon trial of theft of a hog, the evidence showed that the defendant was the only negro in the neighborhood who went barefoot; that the barefoot tracks found were about the same size as the foot of the defendant; that the alleged missing hog was identified as that of the alleged owner, and the head and hide of same were found; that the hog had been skinned entirely down to its feet; and that said barefoot tracks had been traced to where the hog was killed and also to defendant’s place; that at his place on the same day fresh hog meat was found which had been skinned, etc., the same was sufficient to sustain the conviction. -
59 Tex. Crim. 95Smalley v. State (1910)
The opinion states the case.
59 Tex. Crim. 103Long v. State (1910)
The opinion states the case.
59 Tex. Crim. 117Wynne v. State (1910)
Tried below before the Hon. S. W. Dean. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life. The opinion states the case.
59 Tex. Crim. 123Grant v. State (1910)
1. —Theft from the Person—Charge of Court—Statutes Construed—Practice on Appeal. See opinion construing article 723, Code Criminal Procedure. 2. —Knowledge of Theft by Party Injured—Insufficiency of Evidence. Where, upon trial of theft from the person, the indictment charged want of knowledge and consent, and that the theft occurred so suddenly as not to allow time to make resistance, and the evidence showed that the property alleged to have been taken was taken with the knowledge of the injured party, the conviction could not be sustained.
59 Tex. Crim. 126Wynne v. State (1909)
The opinion states the case.
59 Tex. Crim. 131Lundy v. State (1909)
1. —Murder—Charge of Court—Self-Defense. Where, upon trial of murder, the evidence showed self-defense, independent of threats, and also threats, the court erred in not submitting a charge on ' the law of self-defense as applicable to that phase of the case, independent of the charge on threats. 2. —Same—Charge of Court—Self-Defense—Standpoint of Defendant—Threats. Upon trial of murder, where the evidence showed threats by the deceased, it was reversible error to charge the jury that such threats must in fact be made by the deceased before defendant would be justified in killing him; the evidence showing that threats which defendant believed were communicated to defendant. Following Mitchell v. State, 50 Texas Crim. Rep., 180, and other cases. 3. —Same—Charge of Court—Words and Acts. Wheye, upon trial of murder, the evidence raised the issue of self-defense and threats, it was reversible error not to use the language of the statute which provides that it must reasonably appear by acts or words, etc.; the charge of the court confining this matter to the acts of the deceased. 4. —Same—Charge of Court—Threats—Serious Bodily Injury. Where, upon • trial of murder, the evidence raised the issue of self-defense and threats, it was reversible error in the charge of the court in failing to apply the law of threats to serious bodily injury, as well as to take life. 5. —Same—Evidence. Upon trial of murder there was no error in permitting testimony that a clump of bushes were near the scene of the killing; to show an opportunity and ability on part of the defendant to lie in wait and kill deceased. 6. —Same—Evidence—Description of Parties. While proof of the weight, size, age, etc., of the parties is not always admissible in homicide cases, yet where the jury had a right to know something about the relative physical conditions of the parties at the time of the homicide, there was no reversible error in admitting testimony of this kind.
59 Tex. Crim. 137Young v. State (1910)
The opinion states the case.
59 Tex. Crim. 140Ex Parte Naill (1910)
Tried below before the Hon. James R. Harper. Appeal from a habeas corpus proceeding refusing reduction of bail. The opinion states the case.
59 Tex. Crim. 141May v. State (1910)
1.—Abusive language—Charge of Court. Upon trial of using abusive language, etc., the court should have applied the law to the facts of the ease in his charge; but in misdemeanor cases such failure can not be considered on appeal unless a bill of exceptions has been reserved. 2. —Same—Evidence—Allusion to Former Trial. Upon trial for using abusive language towards another, it was reversible error _ to permit the State’s counsel on cross-examination of defendant to ask him if he had not been convicted in the case on a former trial. Following Davis v. State, 54 Texas Crim. Rep., 236, and other cases. 3. —Same—Jurisdiction—Practice on Appeal. Where, upon appeal from a conviction of using abusive language to another, the record showed that the prosecution originated in the Justice’s Court, and was appealed to the County Court where appellant was again convicted and his punishment assessed at a fine of $5, the Court of Criminal Appeals was without jurisdiction. 4. —Same—Certiorari—Practice on Appeal. Where, upon appeal in a misdemeanor, a writ of certiorari was granted to the State to show want of jurisdiction in Court of Criminal Appeals by perfecting the record, there was nothing in the contention that the State could not impeach its own record or go behind the same, as the question was jurisdictional.
59 Tex. Crim. 144Felder v. State (1910)
- Tried below before the Hon. Ed B. Sinks. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 146Rodgers v. State (1910)
Appeal from the District Court of Jones. Tried below before the Hon. Cullen C. Higgins. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 147Ewing v. State (1910)
Tried below before the Hon. E. B. Campbell. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 148Nelson v. State (1910)
Tried below before the Hon. E. ¡R. Campbell. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 149Diseren v. State (1910)
The opinion states the case.
59 Tex. Crim. 152Askew v. State (1910)
1. —Murder—Evidence—Absent Witnesses—Former Trial—Argument of Counsel. Upon trial of murder it was reversible error to permit State’s counsel on cross-examination of defendant to show that some of the State’s witnesses who had attended.a former trial and testified for the State had not been present at any other term of the court wdien the case was called and had never testified again in the case, and that defendant had not tried to locate them or take their depositions. It was also error to permit State’s counsel to argue this matter before the jury. 2. —Same—Evidence—Unwritten Confession—Statutes Construed. Upon trial of murder where it appeared that the alleged confessions of defendant admitted in evidence were not reduced to writing, etc., the same ■was reversible error, although the law requiring confessions to be in writing, etc., was enacted after the alleged confessions were made. 3. —Same—Threats—Charge of Court. Where, upon trial of murder, threats by the deceased against the defendant were in evidence, the court should have pertinently applied the law of threats in Ms charge to the jury.
59 Tex. Crim. 156Turley v. State (1910)
Tried below before the Hon. J. H. Milam. Appeal from a conviction of unlawfully giving intoxicating liquors to a minor; penalty, a fine of $25. The opinion states the case.
59 Tex. Crim. 157Elkins v. State (1910)
Tried below before the Hon. E. A. Stevens. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 159Thomas and Dockery v. State (1910)
1. —Scire Facias—Variance—Name of Principal. See opinion for remarks on name of principal in appearance bond, and absence of allegation in the scire facias that the name alleged was the same person. 2. —Same—More than One District Court in same County—Defective Bail Bond. Where, upon trial of scire facias proceedings, the bail bond offered in evidence upon which the judgment nisi was based did not state before which particular District Court the principal was bound to appear (there being two District Courts in said county having concurrent jurisdiction over the offense with which the principal was charged at the time the bond was made) the said bail bond was defective and not admissible in evidence under the allegations of the scire facias that the judgment nisi was rendered in one of said District Courts, describing the same. Following Granberry v. State, 55 Texas Crim. Rep., 350.
59 Tex. Crim. 161Boswell v. State (1910)
The opinion states the case.
59 Tex. Crim. 165Kubacak v. State (1910)
Tried below before the Hon. Chas. A. Wilcox. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 167Pratt v. State (1910)
1.—Murder—Charge of Court—Murder in the Second Degree—Unlawful Killing. Where, upon trial of murder, the court, in applying the law of murder in the second degree, charged the jury that if the killing was not done under the immediate influence of sudden passion produced by an adequate cause, and was not in defense of accused against an unlawful attack, or what to him might have reasonably appeared an unlawful attack producing in his mind a reasonable expectation or fear of death or some serious bodily injury, to find the defendant guilty of murder in the second degree (the court having correctly defined murder in the second degree and charged on self-defense), the same was sufficient although the phrase that the killing must be unlawful and upon malice was omitted in applying the law of murder in the second degree to the facts. Following Puryear v. State, 56 Texas Crim. Rep., 231. 2. —Same—Charge of Court—Self-Defense. Where, upon trial of murder, the court’s charge on self-defense sufficiently directed the attention of the jury to the facts in the case, it was not essential that the court should have undertaken to embody the details of every fact relied on by the defendant to sustain his plea of self-defense. 3. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence did not raise the issue of man-. slaughter, but the court nevertheless submitted this grade of homicide in a proper charge, there was no error. 4. —Same—Means Used by Deceased. Where, upon appeal from a conviction of murder, the appellant complained ' of the court’s failure to give in charge to the jury article 676, Penal Code, with reference to the means used by the' deceased, but this issue was in no way raised either by bill of exceptions or on motion for new trial, the same could not be considered. 5. —Same—Sufficiency of the Evidence. Upon trial of murder where the evidence amply sustained a conviction of murder in the second degree, the same will not be disturbed.
59 Tex. Crim. 177Ex Parte Stephens (1910)
Capias Profine—Hiring Convict—Jail Penalty. Where a defendant was arrested under a copias profine from the County Court and hired out under a convict bond to work off a fine, he could not be released upon habeas corpus, where the conviction also carried a punishment of confinement in the county jail, under the plea that after the fine and costs were paid this would operate as an extinguishment of the imprisonment punishment. The mere fact that the fine Was first paid would not operate as a relinquishment of the imprisonment.
59 Tex. Crim. 179Lipshitz v. State (1910)
Tried below before the Hon. Robert B. Seay. Appeal from habeas corpus proceedings asking release from arrest under extradition proceedings. The opinion states the case.
59 Tex. Crim. 183Hookman v. State (1910)
Tried below before the Hon. Norman G. Kittrell. Appeal from a conviction of selling intoxicating malt liquors in retail without a license; penalty, a fine of $25. The opinion states the case.
59 Tex. Crim. 186Bass v. State (1910)
The opinion states the case.
59 Tex. Crim. 196Milo and Bradford v. State (1910)
1. —Murder—Continuance—Bill of Exceptions—Motion for New Trial. Where, upon appeal from a conviction of murder, it appeared from the record that appellant had failed to reserve a bill of exceptions to the court’s action overruling the motion for continuance, the matter could not be considered; and the same can not be reviewed because of the court’s action in overruling a motion for new trial. 2. —Same—Motion for New Trial—Bill of Exceptions—Practice on Appeal. A general bill of exceptions, to the overruling of a motion for new trial, does not operate as a bill of exceptions to the rulings of the court set out in the motion for new trial. 3. —Same—Evidence—Conspiracy—Co-Conspirators. Where, upon trial for murder, the State’s theory was that the same was committed in an attempt of robbery, there was no error in admitting testimony that, a day or two before the homicide, the person intended to be robbed received some money, which he had in his hands while passing two of the conspirators, who afterwards acted with the defendant in procuring firearms and carrying out the attempted robbery, which resulted in the killing of’ deceased. 4. —Same—Remarks by Judge—No Comment on Testimony. Where, upon trial of murder, the remarks by the judge complained of simply amounted to a statement to the effect that as defendants had ceased their cross-examination at a certain point of the testimony that he would permit the State to go further with it, there was no error. This was not a comment upon the testimony. 5. —Same—Evidence—Exhibition of Clothing—Range of Shot. Upon trial of murder, where it appeared that one of the State’s witnesses while going to the scene of the shooting, was shot, and the question of the direction from which he was shot became an issue, there was no error in permitting the witness to state the circumstances as to how he was shot and to exhibit his coat with the shot holes in it to the jury. 6. —Same—Charge of Court—Robbery—Person Intended to be Robbed—Degree of Murder. Where, upon trial of murder, the evidence showed that the defendants were in the act of committing robbery, but instead of killing the person intended to be robbed, killed the deceased, who was trying to flee from the tent in which the person intended to be robbed was, there was nothing in the contention of the defendants that the killing of another man in the attempted perpetration of robbery could not be murder in the first degree; and the court was correct in his charge that the killing of another person than the one intended to be robbed under the circumstances would justify a conviction of murder in the first degree, and that murder in the second degree was eliminated.
59 Tex. Crim. 203Richards v. State (1910)
The opinion states the case.
59 Tex. Crim. 208Jordan v. State (1910)
The opinion states the case.
59 Tex. Crim. 211Mazureczk v. State (1910)
Tried below before the Honorable B. H. Burney. Appeal from a conviction of theft of sheep; penalty, two years imprisonment in the penitentiary. , The opinion states the case.
59 Tex. Crim. 213Buzan v. State (1910)
Appeal from a conviction of disturbing religious worship; penalty, a fine of $25. Appeal from the County Court of Hood. Tried below before the Honorable J. P. Mahan. The opinion states the case.
59 Tex. Crim. 217Spencer v. State (1910)
The opinion states the ease.
59 Tex. Crim. 226Mizell v. State (1910)
Appeal from the District Court of Kaufman. Tried below before the Honorable J. S. Woods. Appeal from a conviction of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 231Pilgrim v. State (1910)
Tried below before the Honorable F. L. Hawkins. Appeal from a conviction of rape; penalty, imprisonment in the penitentiary for life. The opinion states the case.
59 Tex. Crim. 237McAlister v. State (1910)
1.—Theft of Horse—Bailment—Charge of Court—Conversion—Venue. Upon trial of theft of horse under bailment, where the evidence raised the question as to where the conversion took place, whether in the county of the prosecution or in another county, the court should have charged affirmatively that if the fraudulent conversion took place in a county other than that of the prosecution to acquit the defendant; this became especially necessary in theft under bailment. Following Abbey v. State, 35 Texas Crim. Rep., 589; 34 S. W. Rep., 930. 2.—Same—Conversion—Mortgage—Venue—Bailment.. On an indictment of theft under bailment, testimony that the defendant borrowed money on the alleged property did not deprive the owner to exercise his ownership and did not amount to a conversion to the exclusion of the real owner, and therefore did not fix the venue of the offense.
59 Tex. Crim. 241Coker v. State (1910)
1. —Murder—Charge of Court—Self-Defense. On trial of murder, a charge of the court on self-defense which instructed the jury that the doctrine of self-defense is a defensive and not an offensive right, and is limited to prevention and necessity, was improper. 2. —Same—Abandonment of Difficulties—Charge of Court. Where, upon trial of murder, the evidence showed that the difficulty between the parties did not last over two minutes; that the deceased commenced the same and defendant was backing away, and that at the time the lick was struck they were facing each other, the court should not have charged on abandonment of the difficulty by the deceased, and there was reversible error; besides the court should not have used the expression that if it reasonably appeared to the defendant that the deceased had abandoned the difficulty. The question is, did the deceased in fact do so. Eamsey, Judge, dissenting. 3. —Same—Charge of Court—Deadly Weapon—Presumption. Where, upon trial of murder, the court had charged the presumption in favor of the State arising from the means used by defendant, he should have submitted a charge under article 717, Penal Code, applying the presumption in favor . of the .defendant, the evidence showing that the instrument used by the defendant was not calculated to produce death.
59 Tex. Crim. 245Mittendore v. State (1910)
Tried below before the Honorable Jas. A. Harrison. Appeal from a conviction of a violation of the Sunday law; penalty, a fine of $35. The opinion states the case.
59 Tex. Crim. 246Clark v. State (1910)
Tried below before the Honorable Edward Dwyer. Appeal from a conviction of theft; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 249Miller v. State (1910)
1.—Aggravated Assault—Transfer from District to County Court. A motion for new trial for want of proper transfer of the indictment from the District to the County Court comes too late; this must be done in limine. 2. —Same—Serious Bodily Injury—Insufficiency of the Evidence. Where, upon trial for aggravated assault on the ground of inflicting serious bodily injury, the wound inflicted appeared to have been made by a sharp instrument or knife about one and one-half inches long and three-quarters to an inch deep, and which inconvenienced the prosecutor for a few days, a conviction on that ground could not be sustained. Ramsey, Judge, dissenting. 3. —Same—Self-Defense—Charge of Court. Where, upon trial for aggravated assault, defendant’s testimony showed „ that the prosecutor struck him with an unopened knife, before defendant used his knife on prosecutor, the court should have charged on self-defense.
59 Tex. Crim. 251Fator v. State (1910)
Tried below before the Honorable P. H. Shook. Appeal from a conviction of aggravated assault; penalty, a fine of $50. The opinion states the case.
59 Tex. Crim. 252Edgar v. State (1910)
The opinion states the case.
59 Tex. Crim. 257Trinkle v. State (1910)
1.—Local Option—Indictment—Grand Jury—Deputy Sheriff. A deputy sheriff is not disqualified from serving as a member of the grand jury; and where no challenge had been made at the time to his right to sit as a member of the grand jury, a motion to quash the indictment on this ground was properly overruled. Besides the juror was not a legal deputy sheriff. 3.—Same—Continuance—Impeaching Witness—Affidavit. Where, upon trial of a violation of the local option law, the absent testimony as set out in defendant’s motion for continuance, was of an impeaching character, there was no error in overruling same; besides there was no affidavit of the alleged absent witnesses to defendant’s motion for new trial. 3. —Same—Special Judge—Disqualification. Where it was not shown that the trial judge was in any sense interested in the case at bar or had such relations with defendant as would, disqualify him, the objection that the judge had been of counsel against defendant in other cases was untenable. 4. —Same—Evidence—Accomplice. Purchasers of intoxicating liquors are not accomplices as that term is used in the law, and there was no error in the court’s failure to charge on accomplice testimony. 5. —Same—Argument of Counsel. Where State’s counsel in his argument said that the defendant did not want his witnesses but merely wanted a continuance, the same was not of sufficient importance to authorize a reversal.
59 Tex. Crim. 260Bussey v. State (1910)
Tried below before the Honorable James I. Perkins. Appeal from a conviction of rape; penalty, five years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 262Stennett v. State (1910)
Tried below before the Honorable W. D. White. Appeal from a conviction of aggravated assault; penalty, a fine of $35. The opinion states the case.
59 Tex. Crim. 263Johnson v. State (1910)
■ Appeal from the County Court of Shelby. Tried below before the Honorable W. D. White. Appeal from a conviction of aggravated assault; penalty, a fine of $35. The opinion states the case.
59 Tex. Crim. 266Choate v. State (1910)
Appeal from the County Court of Jasper. Tried below before the Honorable W. B. Powell. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and fifty days confinement in the county jail. The opinion states the case.
59 Tex. Crim. 267Boykin v. State (1910)
The opinion states .the case.
59 Tex. Crim. 270Lofton v. State (1910)
1. —Assault with latent to Murder—Aggravated Assault—Charge of Court—Adequate Cause. Where, upon trial of assault with intent to murder, the evidence raised the issue of aggravated assault, upon which the court submitted a,proper charge, there was no merit in the contention that the court should have charged as a matter of law that if the injured party shot at the defendant this was adequate cause; the court having charged that if the injured party shot the defendant, the same was adequate cause. 2. —Sainé—Indictment—Adult Male—Female. Where the -indictment charged the defendant with an assault with intent to murder, the court did not err, where the defendant raised the issue that the assault was made by an adult male upon a female, in submitting aggravated assault to the jury; and it was not necessary that such an allegation should be contained in the indictment. Following Peterson v. State, 12 Texas Crim. App., 650, and other cases. 3. —Same—Charge of Court—Simple Assault—Attempt to Alarm. Upon trial of assault with intent to murder, where the court submitted a charge that if the assault was made to alarm the injured party, it would be an aggravated assault, there was no error, and simple assault was not in the ease. 4. —Same—Deadly Weapon—Pistol—Firearm. Where, upon trial of aggravated assault, the evidence showed that the pistol was’ used as a firearm, it was per se a deadly weapon, and it was- not, necessary for the court to define a deadly weapon.
59 Tex. Crim. 273Lindsey v. State (1910)
Tried below before the Honorable E. W. Fry. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.
59 Tex. Crim. 274Ligon v. State (1910)
1. —Aggravated Assault—Charge of Court—Reasonable Doubt—Words and Phrases. Where, upon trial of aggravated assault, the defendant submitted a re- , quested charge which omitted the word “reasonable” in, front of the word “doubt,” the same was correctly refused; and where the court properly instructed the jury on the issue presented by the special charge, there was no error. 2. —Same—Evidence—Officer—Knowledge of Defendant. Upon trial of aggravated assault upon an officer, and that defendant had knowledge of this fact, there was no error in admitting testimony of the previous arrest of defendant by the officer to show that the defendant knew that the injured party was an officer. 3. —Same—Evidence—Bill of Exceptions—Practice on Appeal. Where, upon appeal from a conviction of aggravated assault, it appeared from the record that the defendant complained that the county attorney examined the witness by handing him a paper and reading different statements therefrom, but the bill of exceptions failed to. show what the statements were, . the same could not be considered. 4. —Same—Sufficiency of the Evidence. Where, upon trial of aggravated assault committed upon an officer, the evidence sustained the conviction, the same will not be disturbed.
59 Tex. Crim. 277Thompson v. State (1910)
Local Option—Felony—Jurisdiction. The Act of the Thirty-first Legislature fixing the punishment as for a felony . for the sale of intoxicating liquors, does not apply in counties which had adopted the law before the passage of the Act; and the District Court had no jurisdiction.
59 Tex. Crim. 278Christensen v. State (1910)
The opinion states the case.
59 Tex. Crim. 279Walling v. State (1910)
1.—local Option—Remarks of Judge—Practice in County Court. Where, upon trial of a violation of the local option law, the defendant on cross-examination of the State’s witness was seeking to weaken his testimony by showing that it was improbable that the price stated by witness was paid for the whisky, it was reversible error for the court to remark, in sustaining the State’s exception, that the price paid for the whisky was not material. 3.—Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify. Where it was shown in defendant’s motion for new trial, after a conviction of a violation of the local option law, that the jury had alluded to defendant’s failure to testify in reaching a verdict, the same was reversbile error.
59 Tex. Crim. 281Vantreese v. State (1910)
The opinion states the case.
59 Tex. Crim. 283Chaney v. State (1910)
Local Option—Information—Affidavit—Proof—Variance. Where, upon trial of a violation of the local option law, the record showed that there was a variance in the name of the purchaser between the affidavit and the information, and also a variance in the proof between the name alleged and that shown by the evidence, the conviction could not be sustained.
59 Tex. Crim. 285Thurman v. State (1910)
The opinion states the case.
59 Tex. Crim. 287McClure v. State (1910)
1. —Theft of Hog—Ownership—Fraudulent Taking. Where, upon trial for theft of hogs, the evidence did not sufficiently shoW the alleged ownership or the fraudulent taking of said alleged hogs, the conviction could not be sustained. 2. —Same—Charge of Court—Principal—Fraudulent Taking. Where, upon trial of theft of hogs, the State relied on circumstantial evidence, and there was no evidence that defendant had ever had possession of the alleged stolen property, or had had any connection with the original taking, and the court in his charge so instructed the jury that the defendant could have been convicted as principal whether he participated in the original taking or not, the same was reversible error.
59 Tex. Crim. 291Tucker v. State (1910)
Swindling—Descriptive Allegation—Insufficiency of the Evidence. Where, in a prosecution of swindling, the indictment alleged that the First National Bank of Stephenville was a private corporation, duly incorporated under the laws of the United States, it was incumbent upon the State to prove said allegation of incorporation, and the court erred in not giving a requested charge to this effect.
59 Tex. Crim. 293Rice v. State (1910)
Tried below before the Honorable J. M. Pearson. Appeal from a violation of the local option law; penalty, eighteen months imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 294Hughes v. State (1910)
1, —Forgery—Evidence—Expert Witness—Comparison of Handwriting. Where, upon trial of forgery, the State’s witness had qualified as an expert on handwriting, there was no error in admitting _ the opinion of said witness after comparing checks, one of which was admittedly genuine as to defendant’s signature. 2. —Same—Sufficiency of the Evidence. Where, upon trial of forgery, the evidence showed that the alleged forged check was in defendant’s handwriting, that he was the beneficiary and secured payment of the money on said check, and had not been authorized to sign it, the same was sufficient to sustain the conviction. Following Batte v. State, 57 Texas Crim. Rep., 125.
59 Tex. Crim. 296Kosmoroski v. State (1910)
The opinion states the case.
59 Tex. Crim. 299Lemons v. State (1910)
The testimony of the prosecutrix was substantially that she knew the defendant, and that she saw him on the night of the alleged assault; that she first saw him between ten and eleven o’clock that night, when he came to her house in a rig and stopped in front of her house, knocked at her door and asked if she did not want company for the night; that she told him she did not, to go away, that he had no business there, etc., and that she would dress herself and go to the…
59 Tex. Crim. 314Bobbitt, Alias Bledsoe v. State (1910)
Tried below before the Honorable George Calhoun. Appeal from a conviction of attempting to pass a false instrument; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 316Keeton v. State (1910)
1.—Murder—Continuance—Want of Diligence, Where, upon trial of murder, the application for continuance did not show proper diligence, there was no error in overruling same. 3.—Same—Evidence—Declarations by Defendant—Arrest. Where, upon trial of murder, the State introduced in evidence certain statements by defendant as to whether he had been to the courthouse on the morning of the alleged killing, etc., and it appeared that defendant was on bail at the time and not under arrest, there was no error. 3. —Same—Evidence—Credibility of Witness. Upon trial of murder, where defendant’s witness on cross-examination by the State was asked whether he had not been indicted for failure to suppress gambling houses, etc., and the witness answered that he did not know what the indictment contained, this was equivalent to not answering the question at. all, and there was no error. 4. —Same—Evidence—Bill of Exceptions. Where, upon appeal from a conviction of murder, the record showed that the court refused to approve the bill of exceptions to perpetuate an objection to the testimony of the witness, there was nothing presented for review; besides the question asked the witness as to the whereabouts of the defendant on the morning of the homicide was legitimate. 5. —Same—Remarks of Judge—Practice in District Court. Where, upon appeal from a conviction of murder, it appeared from the record that no opportunity was afforded the court by objections made to the remarks of the court, so that he could explain or withdraw them, and that the court’s attention was not called to this matter at the time, and the defendant accepted the bill of exceptions as qualified by the trial judge, there was no error. 6. —Same—Evidence—Res Gestae—Contradicting Witness. Upon trial of murder, where the defendant asked his witness as to when he learned the deceased had been shot, to which he answered that defendant came out of the room to give up, there was no error in permitting the State’s counsel on cross-examination to show tliat this witness stated, as he ran out of the room where the shooting took place, and said that the defendant had killed the deceased; this testimony was admissible both as contradicting witness’ testimony in chief, as well as res gestae. 7. —Same—Evidence—Moral Turpitude. Upon trial of murder, where there was no objection to the answer of defendant’s witness that he had been indicted of official misconduct and misappropriation of public money, except that the indictment was the best evidence, there was no error. 8. —Same—Defendant as a Witness—Evidence—Cross-Examination. Where, upon trial of murder, defendant’s counsel permitted defendant to testify with reference to certain assaults for which he had been indicted, there was no error in permitting the State’s counsel on cross-examination to ask the defendant whether he had not been indicted for an assault and battery committed in the sheriff’s office because the man was not supporting the sheriff’s candidacy. 9. —Same—Charge of Court—Special Charges. Where, upon trial of murder, all the questions presented in the refused requested charges were covered by the main charge of the court, there was no error. 10. —:Same—Charge of Court—Provoking Difficulty—Objections to Court’s Charge. An exception generally to the charge of the court is insufficient, and an exception to the charge of the court to be entitled to notice on appeal must point out the objection. Following Thompson v. State, 32 Texas Crim. Rep., 265, and other cases. 11. —Same—Charge of Court—Provoking Difficulty—Murder—Manslaughter. Where, upon trial of murder, the evidence showed that if the difficulty was provoked at all it was with the intention to kill the deceased, there was no error in the court’s failure to charge the jury that if the defendant provoked the difficulty with an intention only to inflict an ordinary battery then he would not be guilty of murder. 12. —Same—Charge of Court—Burden of Proof. Where, upon trial of murder, the charge of the court on provoking the difficulty did not throw the burden of proof upon the defendant, there was no error. 13. —Same—Charge of Court—Provoking Difficulty. Where, upon trial of murder, the defendant requested a charge on the question of provoking the difficulty which excluded from the consideration of the jury the purpose and intent of the defendant in using language towards the deceased that was calculated to provoke a difficulty, the court did not err in refusing' the same; the court having properly applied the layf to the facts upon this issue in his main charge, construed as a whole. 14. —Same—Charge of Court—Preliminary Statement—Provoking Difficulty. Where, upon trial of murder, the court in his preliminary statement of his charge on provoking the difficulty used language that was subject to criticism, but when he came to apply the law to the facts of the case he stated' the matter correctly, the same is not cause for reversal. Following Railsback v. State, 53 Texas Crim. Rep., 542. 15. —Same—Charge of Court—Provoking Difficulty—Serious Bodily Injury— Manslaughter. Upon trial of murder, where the court charged the jury that if the defendant provoked the difficulty with the intent to inflict death or serious bodily injury, he would be guilty of murder either in the first or second degree, there ■yvaS' no error; and the contention that if defendant provoked the difficulty to inflict an injury less than death, then it would be only manslaughter, is untenable. Following Green v. State, 12 Texas Crim. App., 445, and other cases.
59 Tex. Crim. 334Fluewellian v. State (1910)
Tried below before the Honorable L. B. Hightower. Appeal from a conviction of passing a forged instrument; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 338Haley v. State (1910)
The opinion states the case.
59 Tex. Crim. 340Vails v. State (1910)
1.—Accomplice—Charge of Court—Practice—Cuestión of Fact. Where, upon trial of an accomplice of assault with intent to commit murder, two of his accomplices were used as State’s witnesses, there was no error in the action of the court in submitting the issue of accomplice testimony to the jury to he passed upon by them as a fact. Following Zollicoffer v. State, 16 Texas Crim. App., 312, and other cases. Distinguishing Sessions v. State, 37 Texas Crim. Rep., 58; Armstrong v. State, 33 Texas Crim. Rep., 417. 3.—Same—Charge of Court—Practice—Buie Stated. . In a proper case the court may direct the jury that the witnesses were accomplices, and it is the better practice when there is no conflict or question of fact, yet a failure to do so is not in itself cause for reversal. 3. —Same—Charge of Court—Malice Aforethought. Upon trial of assault with intent to murder, where the indictment alleged that the defendant with Ms malice aforethought advised and encouraged Ms accomplice to take the life of the party injured and that he promised a reward and favor for so doing, it was not necessary in the court’s charge to repeat the phrase “malice aforethought” in submitting the issue, of promising reward and favor for killing the injured party; where the court had properly defined malice aforethought and applied it to the phase of defendant encouraging and advising the accomplice to kill the injured party. 4. —Same—Accomplice—Corroboration—Insufficiency of Evidence. See opinion for facts held insufficient to corroborate the testimony of accomplices with that degree of certainty that would justify this court in permitting the verdict to stand.
59 Tex. Crim. 347Williams v. State (1910)
1. —Seduction—Charge of Court—Alibi. Where there was no testimony, upon trial of seduction, that the female seduced had anything to do with any other man than the defendant, and did not preclude the idea that the defendant was the father of the children to whom prosecutrix gave birth, there was no error in the court’s failure to charge on alibi. 2. —Same—Accomplice—Corroboration. W'here, upon trial of seduction, it was admitted that the prosecutrix was corroborated on the questions of promise of marriage and sexual intercourse, it was not necessary that she should have also been corroborated as to her age. 3.—Same—Evidence—Practice—Discretion of Court—Witness under Buie. Upon trial of seduction, where the State placed a witness upon the stand after the argument had begun, by whom it proved that the defendant was absent from witness’ place at different times and about the time the alleged seduction took place, and th edefendant thereupon offered to show where he was at said time, which the court refused because the witnesses he offered had not been placed under the rule which the defendant had invoked, there was no error, no abuse of discretion having been shown.
59 Tex. Crim. 350Bonner, Alias Johnson v. State (1910)
The opinion states the case.
59 Tex. Crim. 353Guzman v. State (1910)
Tried below before the Hon. J. F. -Mullally. Appeal from a conviction of a violation of the local option law; penalty, one year imprisonment in the penitentiary. The opinion states the case. .
59 Tex. Crim. 353Earles v. State (1910)
Tried below before the Hon. Richard I. Munroe. Appeal from a conviction of attempting to pass a forged instrument; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 354Nurse v. State (1910)
Swindling—Insufficiency of Evidence—Spiritualism. Where, upon trial of swindling consisting of false representations by defendant as a spiritualist, upon the ground that he could find buried treasure by communication with the spirits and by which he obtained the sum of $20 from the party injured, the evidence showed that the defendant did find money as he said he could, which he afterwards fraudulently appropriated the conviction could not be sustained, as the injured party was neither deceived "nor misled by the alleged misrepresentation.
59 Tex. Crim. 358Young v. State (1910)
Illegal Practice of Medicine—Indictment—Residence of Defendant. Where, upon trial for unlawfully practicing medicine, the indictment alleged that the defendant was a resident of the county of the prosecution, and there was no evidence to sustain this allegation, the conviction could not be sustained.
59 Tex. Crim. 360Hughes v. State (1910)
Injuring Public Property—Information—Public Use—Statutes Construed. In a prosecution under article ■ 500, Penal Code, for unlawfully injuring certain property, to wit, the Colorado High School building, where the information failed to allege that such building was held for public úse, it not being specifically named in said article, the same Was insufficient. Following Brown v. State, 16 Texas Crim. App., 245, and other cases.
59 Tex. Crim. 361Moore v. State (1910)
The opinion states the case.
59 Tex. Crim. 365Muniz v. State (1910)
The opinion states the case.
59 Tex. Crim. 366Windham v. State (1910)
The opinion states the case.
59 Tex. Crim. 370Sweeney v. State (1910)
1.—Disorderly House—Jury and Jury Law—Talesmen, On trial of keeping a disorderly house, there was no error in overruling defendant’s motion to require that all the regular jurors drawn for the week be brought into court by process, before talesmen were summoned; eight regular jurors being in attendance, and no injury having been shown. it.—Same—Evidence—Cross-Examination—Discretion of Court. Upon trial of keeping a disorderly house, where it was not shown that the discretion of the court was abused in the cross-examination of the witness, there was no error. Following Thompson v. State, 11 Texas Crim. App., 51. 3. —Same—Evidence—Withdrawal of Announcement—Surprise—Absent Testimony—Continuance. Where, upon trial of keeping a disorderly house, defendant claimed surprise, asking to withdraw announcement of ready, and the application for postponement and continuance did not show proper diligence, and that the alleged absent testimony would have secured a verdict more favorable to the defendant if admitted, there was no error. Following Hyden v. State, 31 Texas Crim. Rep., 401, and other cases. 4. —Same—Election by State. In misdemeanor cases, the rule requiring the prosecution to elect on what counts in an indictment the prosecution will be based is not recognized. 5. —Same—Evidence—Leading Question—Unwilling Witness. Upon trial for keeping a, disorderly house, there was no error in permitting State’s counsel to ask leading questions of an unwilling witness. 6. —Same—Evidence—Paying Taxes. Upon trial of keeping a disorderly house, there was no error in admitting testimony that defendant paid taxes on certain fixtures contained in the alleged building. Following Wimberly v. State, 53 Texas Crim. Rep., 11. 7. —Same—Sufficiency of the Evidence. Where, upon trial for keeping a disorderly house, the evidence showed the presence of the defendant at the alleged place as shown, also the sale of whisky and his participation therein, and his ownership of the building; that he paid the telephone, light and water bills, etc., same was sufficient to sustain the conviction.
59 Tex. Crim. 376Fulshear v. State (1910)
1.—Theft—Evidence—Endorsement. UpSn trial of theft of a: pay check, an objection that the same was not valid until indorsed for want of proper description could not be introduced in evidence, was properly ■ overruled. Following Worsham v. State, 56 Texas Crim. Rep., 253. 3.—Same—Check—Indorsement—Negotiable Instrument. A check or 'any other negotiable writing, under our statutes, may be the subject of theft, and the want of indorsement will not protect the accused; besides it was not shown that the check contained such provision. 3. —Same—Evidence—Surprise—Description. Where, upon trial of theft of a check, the number of the check was given, the name of the person drawing the same, the person to whom payable, and the amount of the check, the same was a sufficient description and evidence in support of the allegation could not surprise the defendant. 4. —Same—Plea in Bar—Passing Instrument—Former Acquittal. Upon trial for theft of a check, the fact that defendant was tried and acquitted for fraudulently passing the instrument could not avail him in a trial for theft of the same instrument; besides there was no plea of former acquittal. 5. —Same—Evidence—Stolen Instrument—Variance. x Upon trial of theft of a pay check which was described in the indictment, it was not necessary to introduce in evidence the instrument itself, and the mere statement in the bill of exceptions as to the variance and the figures of the check was not a certificate of the truth of this objection.
59 Tex. Crim. 379Coy v. State (1910)
1.—local Option—Information—Date of Election. Upon trial of a violation of the local option law, where the information failed to allege the date or time when the local option election was held, the same was sufficient on motion to quash, as this was not necessary. 3.—Same—Elections—Increase of Punishment. Where, upon trial of a violation of the local option law, it appeared that at the time of the commission of the offense, and the filing of the information and the trial thereon the law imposed a penalty by fine and imprisonment in the county jail, it is not necessary to decide as to the effect of another election in said territory thereafter under a law increasing the penalty. 3. —Same—Charge of Court—Weight of Evidence—Practice on Appeal. Where, upon appeal from a conviction of a violation of the local option law, it appeared that the appellant complained of the court’s charge on reasonable doubt, but had not excepted to the same at the time, there was no error. 4. —Same—Remarks by Judge. Where, upon trial of a violation of the local option law, the trial judge made some remarks which were probably calculated to prejudice the jury, but such action of the judge was not excepted to at the time, and not raised until in motion for new trial, the same could not be considered on appeal. 5. —Same—Charge of Court—Internal Revenue license. Where, upon trial of a violation of the local option law, the defendant did not except at the time to a charge of the court that the issuance of internal revenue license to the defendant was prima facie proof that he was engaged in the business of selling intoxicating liquors, this objection could not be considered on appeal; besides the objection that such charge applied the time of engaging in such business to the date of the trial could not have misled the jury, an,d there was no error.
59 Tex. Crim. 383Pannell v. State (1910)
The opinion states the case.
59 Tex. Crim. 386Maibaum v. State (1910)
The opinion states the case.
59 Tex. Crim. 390Mass v. State (1910)
1. —Murder—Charge of Court—Limiting Testimony. Where, upon trial of murder, the evidence was not, strictly speaking, impfeaching in its character but was a statement of fact which the jury were authorized to consider as evidence of guilt, there was no error in the court’s failure to limit said testimony to purposes of impeachment. 2. —Same—Charge of Court—Murder in the Second Degree. While it may in some cases be held that it is improper for the court to designate a homicide as murder, yet upon trial for murder where the evidence showed, by the nature of the wound and all the circumstances, that the deceased was murdered, the use of the language of the court in his charge on murder in the second degree designating the homicide as murder, there was no rever- - sible error. 3. -Same—Charge of Court—Alibi—Practice on Appeal. Where, upon trial of murder, the court charged upon the law of alibi, and the defense objection to said charge was general, and there was no special charge requested or any exception taken thereto when given, the same could not be considered on appeal. Following Jones v. State, 53 Texas Crim. Rep., 131. 4. —Same—Charge of Court—Circumstantial Evidence—Words and Phrases—Typographical Error. Where, upon appeal from a conviction of murder, the appellant excepted to the court’s charge on circumstantial evidence on the ground of the misspelling of a word, and it appeared from the record that the court must have used the correct word in reading his charge, and that the irregular spelling was the result of a mere typographical error, there was no error. 5. —Same—Sufficiency of the Evidence—Death Penalty. See opinion for evidence, although entirely circumstantial, which is held to be sufficient to sustain the conviction of murder in the first degree assessing the death penalty.
59 Tex. Crim. 398Canon v. State (1910)
1. —Murder—Change of Venue—Practice on Appeal—Bill of Exceptions. • Where, upon appeal from a conviction of murder, the statement of facts in regard to the change of venue was not made a part of any of the bills of exception or included therein, the same could not be considered under article 621, White’s Annotated Code Criminal Procedure, the same not having been made and' filed during the term of the court. 2. —Same—Conduct of Trial—Handcuffs. Where, upon appeal from a conviction of murder, it appeared from the record that the complaint that defendant had been brought into court handcuffed was not called to the attention of the court at the time but was urged for the first time in defendant’s motion for new trial, the matter came too late and could not be considered; besides the matter was not of sufficient importance, as it actually transpired to cause a reversal. 3. —Same—Jury and Jury Law—Peremptory Challenges. Where, upon trial of murder, the rulings of the court with reference to the manner of questioning jurors were in accord with the decisions of this court and the jurors were in fact not disqualified, there was.no error; besides the bill of exceptions on appeal did not show that any of the jurors objected to sat upon the trial, or that defendant was required to exhaust his peremptory challenges on them. 4. —Same—Evidence—Bill of Exceptions—Limiting Testimony. Where, upon appeal from a conviction of murder, the bill of exceptions did not show the testimony objected to, the court’s failure to limit said testimony could not be considered; besides no such limitation was required. 5. —Same—Evidence—Motive. Where, upon trial of murder, the court admitted testimony to show that defendant was indicted for the theft of an animal belonging to the deceased, and which testimony the court limited to -the question of motive, there was no error. 6. —Same—Evidence—Physical Appearance of Defendant—Shorthand Facts. Upon trial for murder, there was no error in admitting testimony to show that the defendant was excited after the commission of the homicide. This was a shorthand rendering of the facts. 7. —Same—Evidence—Clothes of Deceased—Position of Parties. Upon trial of murder there was no error in admitting in evidence the clothes of the deceased that he wore at the time of the homicide, as well as other articles connected with the homicide, such as empty cartridge shells, etc., to show the character of the wounds on the deceased, and explain the position of parties at the time of the homicide. 8. —Same—Evidence—Bill of Exceptions—Practice on Appeal. Where, upon appeal from a conviction of murder, the record showed that the testimony which defendant offered and to which the State objected, was Anally all admitted in evidence, there was no error. 9. —Same—Evidence—Character of Deceased. Where, upon trial of murder, defendant had introduced in evidence the threats by deceased against defendant to take his life, there was no error in permitting the State to introduce testimony of the general reputation of the deceased for peace and quietude. Following Jirou v. State, 53 Texas Crim. Rep., 18, and other cases. 10. —Same—Evidence—Confession. On trial of murder, there was no error in admitting in evidence the written confessions of defendant which were made in jail voluntarily and conformed to law. 11. —Same—Charge of Court—Clothes of Deceased—limiting Testimony. Upon trial of murder, there was no error in admitting in evidence the clothing of deceased and other articles to show the position of the parties at the time of the homicide, and there was no error in the court’s failure to limit the same. 12. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the testimony of the State showed a lying in wait and antecedent preparations and all the indicia of murder, and that of the defendant, a case of self-defense, there was no error in the court’s failure to charge on manslaughter. 13. —Same—Charge of Court—Singling out Facts. Upon trial of murder, the court was not required to single out particular facts for the defense and charge the jury with reference to same.
59 Tex. Crim. 409Ex Parte Walsh (1910)
From Grayson County. Original proceeding in a habeas corpus asking release from arrest by virtue of a warrant based upon complaint and information filed in the County Court, charging defendant with taking and accepting a sum of money and transmitting same by telegraph to be bet on a horse race. The opinion states the case.
59 Tex. Crim. 419Ellis v. State (1910)
Tried below before the Hon. Albert Maberry. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the penitentiary. The opinion states the case.
59 Tex. Crim. 420Heimes v. State (1910)
Tried below before the Hon. L. B. Hightower. Appeal from a conviction of passing a forged instrument; penalty, two years imprisonment in the penitentiary. The opinion states the • case.
59 Tex. Crim. 423Vaughn v. State (1910)
Tried below before the Hon. S. W. Dean. Appeal from a conviction of murder in the second degree; penalty, seven years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 424Griffin v. State (1910)
Murder—Statement of Pacts—Piling—Extension of Time. Where the time allowed for filing a statement of facts and bills of exception had expired, an extension of time within which to file said statement of facts and bills of exception could not be made, and the same could not be considered on appeal.
59 Tex. Crim. 425Johnson v. State (1910)
The opinion states the case.
59 Tex. Crim. 428Reece v. State (1910)
The opinion states the case.
59 Tex. Crim. 429Casey v. State (1910)
The opinion states the case. See Casey v. State, 54 Texas Crim. Rep., 584.
59 Tex. Crim. 430Reeseman v. State (1910)
The opinion states the case.
59 Tex. Crim. 439Hunter v. State (1910)
The opinion states the case.
59 Tex. Crim. 464Dougherty v. State (1910)
1. —Murder—Evidence—Deceased Unarmed. Upon trial of murder, there was no error in admitting testimony as to the fact that deceased was unarmed at the time of the homicide. 2. —Same—Charge of Court—Murder in the First Degree—Conviction for lower Grade of Homicide. Where, upon trial of murder, the defendant was found guilty of murder in the second degree, he could not complain either of the fact that the court submitted murder in the first degree, or of errors in the charge touching that degree of murder. Following Potts v. State, 56 Texas Crim. Rep., 39. 3. —Same—Charge of Court—Murder in the Second Degree. Where, upon trial of murder, the evidence showed an unlawful killing on the testimony of the State, there was no error in instructing on murder in the second degree. Following Wheeler v. State, 54 Texas Crim. Rep., 47, and other cases. 4. —Same—Presumption of Malice—Charge of Court. Where, upon trial of murder, the evidence showed circumstances from which the jury were justified that the killing was unlawful, the court did not err to instruct on murder in the second degree. 5. —Same—Charge of Court—Defendant’s Failure to Testify. Upon trial of murder, where the defendant did not testify, there. was no error in the court’s charge in admonishing the jury not to refer to this circumstance in any way, etc. Following Anderson v. State, 53 Texas Crim. Rep., 341, and other cases. 6. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence did not show any fact which ■could have reduced the homicide below the grade of murder in the second degree, there was no error in the court’s failure to charge on manslaughter. Following Potts v. State, 56 Texas Crim. Rep., 39, and other eases. 7. —Same—Jury and Jury Daw—Prejudiced Jurors—Practice in District Court. Where, upon appeal from a conviction of murder in the second degree, the record did not show that there was no oral testimony submitted on the issue that two of the jurors were prejudiced against the defendant, and there was no certificate of the trial judge that the affidavits to the motion for new trial was the only evidence touching this matter, the.judgment of the trial court overruling the motion will not be disturbed. Following - Cabrera v. State, 56 Texas Crim. Rep., 141, and other cases. 8. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction, the same will not be disturbed.
59 Tex. Crim. 475Jenkins, Alias Johnson v. State (1910)
1. —Murder—Statement of Facts—Time for Filing Extended. Where, upon appeal from a conviction of murder, the record showed that the time for filing the statement of facts had been extended before the expiration of the time granted in the original order, the same was filed in time within said extension. 2. —Same—Sufficiency of the Evidence. Where, upon appeal from a conviction of murder in the second degree, the evidence sustained the conviction, the same will not be disturbed. 3. —Same—Evidence—Charge of Court—Res Gestae. Where, upon trial of murder, the evidence showed that defendant killed another while killing deceased, there was no error in admitting evidence of this fact as part of the res gestae upon the question of malice and motive;' and there was no error in the court’s failure in not limiting said testimony. Following Wilkerson v. State, 31 Texas Crim. Rep., 86. 4. —Same—Joint Attack—Charge of Court. Where, upon trial of murder, the evidence showed that the defendant struck but one blow which killed the deceased, and thereafter also cut his wife, there was no error in the court’s failure to submit the issue of joint attack by the deceased and defendant’s wife.
59 Tex. Crim. 479Murphy v. State (1910)
local Option—Indictment—Time and Place of Sales. Where, upon trial of pursuing the business of selling intoxicating liquors in local option territory, the indictment failed to allege the time and place of the sales as well as the names of the parties to whom the sales were made, the same was fatally defective. Following Fitch v. State, 58 Texas Crim Rep., 366, and other cases.
59 Tex. Crim. 480Phinney v. State (1910)
1. —Wilfully Turning Cattle on Land of Another—Charge of Court—Reasonable Diligence. Where, upon trial o'f wilfully turning out cattle on land not his own, etc., the evidence showed that the defendant used reasonable diligence to keep his cattle from running at large, that they got out without his knowledge or consent and depredated on the land of another, it was reversible error to refuse a special charge on this issue. 2. —Same—Evidence—Other Transactions. Upon trial of wilfully turning out cattle on land of another, it was reversible error to. admit in evidence other depredations of defendant’s cattle wholly disconnected with that forming the basis of the prosecution against defendant.
59 Tex. Crim. 482Pool v. State (1910)
The opinion states the case.
59 Tex. Crim. 484Naill v. State (1910)
The opinion states the case.
59 Tex. Crim. 488Edgar v. State (1910)
Local Option—Jury and Jury Law—Challenge for Cause. Where, upon trial of a violation of the local option law, the court compelled the defendant to select a jury from a panel composed of six jurors who had theretofore sat in a case in many respects similar to the case on trial, 'and in which almost the sole defensive matter was the credibility of the State’s chief witness, the same was reversible error. Following Holmes v. State, 52 Crim. Rep., 352.
59 Tex. Crim. 491Edgar v. State (1910)
The opinion states the case.
59 Tex. Crim. 496Campbell v. State (1910)
Tried below before the Hon. W. M. Jeter. Appeal from a conviction of keeping a disorderly house by the sale of spirituous and other liquors without license; penalty, a fine of $200 and twenty days confinement in the county jail. The opinion states the case.
59 Tex. Crim. 498Thompson v. State (1910)
Sodomy—Dismissal—Reinstatement—Want of Jurisdiction—Practice on Appeal. Where the record, on appeal from conviction of sodomy, showed that appellant had been convicted at a time when the court could not be legally held, but that the appeal had previously been dismissed for want of notice of appeal, the appeal will not be reinstated, but the case will pass off the docket under the decision of the court discharging him from the penitentiary
59 Tex. Crim. 499Pilgrim v. State (1910)
Tried below before the Hon. F. L. Hawkins. Appeal from a conviction of incest; penalty, six years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 500Sutphen v. State (1910)
1. —Selling Intoxicating Liquors—Local Option—Indictment. Where, .upon trial for pursuing the business of selling intoxicating .liquors in local option territory, the indictment failed to charge that any sales were made or to whom they were made or at what time, and also failed to allege that the business was not permitted by law, the same was fatally defective. 2. —Same—Exceptions—Enacting Clause—Description of Offense. Where the exceptions are contained in the enacting clause, the same are essentially descriptive of the offense, and must be negatived.
59 Tex. Crim. 501Carden v. State (1910)
. Appeal from the District .Court of Travis. Tried below before the Hon. George Calhoun. Appeal from a conviction of manslaughter; penalty, three years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 505Houston, Alias Smith v. State (1910)
Forgery—Attempting to Pass Forged Instrument—Alleged Injured Party— . Variance. Where, upon trial for attempting to pass a forged instrument, the indictment alleged that defendant attempted to pass same on H. A. Wroe, and there was evidence supporting said allegation and that said Wroe was Vice-President of the bank, the conviction was sustained, although the evidence further showed that the defendant also presented said alleged forged instrument to Carl Widen, the cashier.
59 Tex. Crim. 507Agnes v. State (1910)
Tried below before the Hon. J. N. Browning. Appeal from a conviction of rape; penalty, forty years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 508Gherke v. State (1910)
Appeal from the District Court of Tom Green. Tried below before the Hon. J. W. Timmins. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 511King v. State (1910)
Tried below before the Hon. Horton B. Porter. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25' and twenty days confinement in. the county jail. The opinion states the case.
59 Tex. Crim. 513Byrd v. State (1910)
1. —Running Automobile over Speed limit—Indictment—Negative Averment. Where the Act of the Thirtieth Legislature, section 1, p. 193, provides that the regulated speed limit of automobiles on public roads and- streets, etc., shall not apply to race courses or speedways, and the indictment did not negative these exemptions, the same was fatally defective. 2. —Same—Validity of law. The Act of the Thirtieth Legislature, p. 193, is not so uncertain as to render the same invalid and that a prosecution could not he had under section 2 of said Act.
59 Tex. Crim. 517Thorp v. State (1910)
1. —Seduction—Offering Marriage in Good Faith. Where, upon trial of seduction, it appeared that the prosecutrix after the alleged act of seduction was married to a third party and to whom she was married at the time of the trial, an offer hy the defendant to marry prosecutrix after the State had announced ready for trial came too late and was not made in good faith, under article 969, Penal Code. 2. —Same—Charge of Court—Accomplice Testimony. Where, upon appeal from a conviction of seduction, it appeared from the record that under article 723, Code Criminal Procedure, that a charge on accomplice testimony while incorrect was not prejudicial to the appellant, there was no reversible error. See opinion for form of charge on accomplice testimony. 3. —Same—Charge of Court—Requested Charges. Where, upon trial for seduction, the requested charges were substantially submitted in the court’s main charge, there was no error in rejecting same. 4. —Same—Charge of Court—limitation. Where, upon trial of seduction, the evidence raised the issue of limitation, it was reversible error to refuse to submit a special charge on this issue as requested.
59 Tex. Crim. 523Franklin v. State (1910)
1. —Theft—Sufficiency of the Evidence. Where, upon trial of theft of money, the evidence supported the conviction, the same will not be disturbed. 2. —Same—Charge of Court—Circumstantial Evidence—Requested Charges— Misdemeanor—Practice on Appeal. Upon trial of theft of money under the value of $50, where the defendant did not except to the court’s charge on circumstantial evidence at the time the charge was given, and raised objections thereto for the first time in motion for new trial, the same can not be considered on appeal.
59 Tex. Crim. 525Cromwell v. State (1910)
The opinion states the case.
59 Tex. Crim. 528Goolsby v. State (1910)
1, _Assault to Murder—Evidence—Character for Peace. Where, upon trial for assault with intent to murder, the defendant put his character for peace and quietude in evidence, there was no error in permitting . the State to introduce testimony that some five years previous to the difficulty defendant cut a lady teacher with a knife. 2. —Same—Charge of Court—Limiting Testimony—Weight of Evidence. A charge of the court which directed the jury that they could not consider certain, testimony which was offered to impeach defendant’s testimony, as affecting the guilt or innocence of defendant, was improper. 3.—Same—Charge of Court—Words and Phrases. Where the court in his charge omitted the word “not” in his charge to the jury, which gave the charge a meaning which was entirely different from that intended to be conveyed and was very injurious to the defendant, the same was reversible error.
59 Tex. Crim. 531Lockett v. State (1910)
The opinion states the case.
59 Tex. Crim. 534Phillips v. State (1910)
1.—Murder—Evidence—Other Transactions. Where, upon trial of murder, the defendant’s witness was asked by the State whether it was not generally understood that defendant was in the crowd who shot at the deceased through a window some time .prior to the killing, which witness answered in the negative, as well as other questions of a like kind, there was no reversible error, although the manner of such cross-examination may well be questioned. 2. —Same—Evidence—Defendant as a Witness—Acts of Defendant. Upon trial of murder, there was no error on cross-examination of the defendant to show that some time prior to the killing deceased was shot through the window, and that the defendant, who was a close neighbor, did not go to see the deceased; the defendant explaining that he knew the deceased had ill-will toward him. 3. —Same—Misconduct of Jury—Affidavit. Where defendant in his motion for hew trial attached an affidavit thereto stating that while the jury were deliberating upon the case they attended a moving picture show; but there being no statement of facts as to what really transpired at the picture show except the affidavit, the judgment of the lower court overruling the motion will not be revised. 4. —Same—Practice on Appeal. Where, upon appeal from a conviction of murder, the objections to the charges of the court did not show in what manner the court erred, the same will not be considered.
59 Tex. Crim. 538Spain v. State (1910)
The opinion states the case.
59 Tex. Crim. 540Fitzsimon v. State (1910)
Injuring Fence of Another—Evidence—Defensive Matter. Upon trial of unlawfully injuring the fence of another, it was reversible error not to have permitted the defendant to show that the fence in question was situated on land which had been recognized for a long time to be the property of the defendant and to which he also offered a deed. Following Pate v. State, 46 Texas Crim. Rep., 483; 81 S. W. Rep., 737, and other cases.
59 Tex. Crim. 542Eggleston v. State (1910)
The opinion states the case.
59 Tex. Crim. 556Grantham v. State (1910)
Tried below before the Hon. W. J. Oxford. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion, states the case.
59 Tex. Crim. 557Lowe v. State (1910)
Perjury—Indictment—Time and Place. Where, upon trial of perjury, the matters about which the indictment charged the defendant had testified and which was alleged as the material inquiry in a judicial proceeding and alleged to have occurred at a certain time and place, and the remaining part of the indictment did not limit this matter to the time and place first alleged, the indictment was fatally defective.
59 Tex. Crim. 559Jones v. State (1910)
1. —Theft of Cattle—Evidence—Part of Conversation. Where, upon trial of theft of cattle, defendant’s counsel brought out a part of the conversation of third parties, there was no error in permitting the State to bring out the remainder of the conversation; besides the objection that defendant was absent was not properly presented by the bill of exceptions. 2. —Same—Charge of Court—Accomplice Testimony. Where, upon trial of theft of cattle, the charge of the court on accomplice testimony was in substantial accord with the approved form, except that the jury were not instructed that as a matter of law the witness was an accomplice, there was no error. 3. —Same—Charge of Court—General Objection. Where, upon appeal from a conviction of theft of cattle, the complaint to the charge of the court was not pointed out, the same could not be considered; besides there was no error in the charge. 4. —Same—Charge of Court—Circumstantial Evidence. It is never proper for a court to charge on circumstantial evidence, except in cases where the testimony is wholly circumstantial. 5. —Same—Requested Charge—Accomplice Testimony. Where, upon trial of theft of cattle, it appeared from the evidence that if the testimony of the accomplice was eliminated, the other evidence in the case connecting the defendant with the commission of the offense was insufficient, the court erred in not having submitted defendant’s special instruction that if the jury found that the State’s witness was an accomplice, to acquit the defendant.
59 Tex. Crim. 563Pridemore v. State (1910)
Tried below before the Hon. Ben H. Denton. Appeal from a conviction of incest; penalty, eight yeays imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 568Roquemore v. State (1909)
The opinion states the case.
59 Tex. Crim. 575Biggerstaff v. State (1910)
1. —Negligent Homicide—Change of Venue—Transcript—Seal—Practice. Where, upon trial of murder, before the case was called for trial, defendant filed a plea to the jurisdiction of the court on the ground that the transcript of the proceedings of the District Court from which the venue was changed was not under seal of the district clerk of said county, there was no error to permit said clerk in person to duly afiix his' seal to the transcript of the proceedings on change of venue; although the better practice might have been to have ordered said clerk by certiorari to complete the record. 2. —Same—Charge of Court—Accidental Killing. Where the court’s main charge properly submitted the issue of accidental killing, there was no reversible error in refusing special charges on the same issue.
59 Tex. Crim. 579Ex Parte Denny (1910)
The opinion states the case.
59 Tex. Crim. 586Petty v. State (1909)
1. —Theft of Goats—Jury and Jury Law—Constitutional Jury. Where, upon appeal from a conviction of theft of goats, complaint was made for the first time in the brief of appellant that the verdict as copied in the judgment was signed by a person as foreman, who did not appear to have been a member of the jury trying the case, and it appeared from the record that twelve men composed the jury, giving their names, it must be assumed that the defendant was tried by a constitutional jury and that the cleric in copying the verdict improperly stated the name of the foreman. Davidson, Presiding Judge, dissenting. 2. —Same—Evidence—Other Transactions. On trial of theft of five goats there was no error in admitting testimony to show possession of other animals of the same class by defendant belonging to prosecutor and which were likewise marked and branded as those alleged to have been stolen, the defendant having claimed good faith, and there was no error in refusing a requested charge to exclude this testimony. 3. —Same—Continuance. Where, upon trial of theft of goats, the absent testimony was merely cumulative and it was defendant’s third application, there was no error in overruling same. 4. —Same—Charge of Court—Voluntary Return of Stolen Property. Where, upon trial of theft of goats, it was shown by all the testimony that no offer of return of the alleged stolen property was made until defendant had been found in possession thereof and charged with the theft of the same, there was no error in the court’s failure to charge on voluntary return of stolen property. 5. —Same—Sufficiency of the Evidence. Where, Upon trial for theft of goats, the evidence was sufficient to sustain the conviction, the same will not be disturbed.
59 Tex. Crim. 595Lane v. State (1909)
The following are the dying declarations of deceased: “I, Mrs. Belle Nix, make this statement voluntarily; I feel that I am going to die—feel like I am nearly dead now—and do not have any hope of getting well. “Early Sunday morning Mr. Lane came in the back door and sat down in the kitchen, and sat there while I cooked breakfast, talking about coming back. Campbell, my little nephew, took me off in the front room and says, 'Aunt Belle, he has a pistol;’ that he had seen it.
59 Tex. Crim. 611Cromeans v. State (1909)
The opinion states the case.
59 Tex. Crim. 623Wilson v. State (1910)
1.—Theft—Charge of Court—Purchase. Where, upon trial for theft, the defendant claimed to have purchased the stolen goods, and the court in his main charge failed to instruct the jury upon this issue, as requested by special charge, the same was reversible error. 3.—Same—Charge of Court—Fraudulent Intent—Want of Consent. Where, upon trial of theft, the court’s charge omitted to instruct the jury that if defendant took the property without the consent of the owner, with the fraudulent intent to deprive him thereof and appropriate it to his own use, the same was error.
59 Tex. Crim. 624Williams v. State (1910)Affirmed
Tried below before the Hon. Robert B. Seay. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 626Ellis v. State (1910)
1. —Local Option—Transfer of Indictment—Jurisdiction of Court. Where, upon appeal from a conviction of a violation of the local option law, it appeared from the record that the word “court” was omitted after the word “county,” in the order of the District Court transferring the indictment to the County Court, but it sufficiently appeared that the same was intended to be transferred and that the order had the effect to transfer the case to the proper County Court, there was no error. 2. —Same—Evidence—Other Transactions. Upon trial of a violation of the local option law there was no error in the cross-examination of defendant whether he had not gotten some whisky by express shortly before the time he was indicted. Following Wagner v. State, 53 Texas Crim. Rep., 306. 3. —Same—Charge of. Court—Misdemeanor. Where, upon trial of a violation of the local option law, the defendant complained that the court- did not properly define the meaning of the word “sale,” and it appeared from the record on appeal that the defendant had requested no special charge on this issue, there was no error. 4. —Same—Order of Commissioners’ Court—Insufficiency of the Evidence. Where, upon appeal from a conviction of a violation of the local option law, the record failed to show proof of the result of the election and whether there had ever been any publication of said result, and also failed to show the date of either the election or publication given, the conviction could not be sustained.
59 Tex. Crim. 630Ellis v. State (1910)
1. —Local Option—Charge of Court—Law in Force—Insufficiency of the Evidence. Where, upon trial of a violation of the local option law, there was no evidence that the local option law was in force in the county of the prosecution, the court erred in charging the jury that said law was in force. 2. —Same—Charge of Court—Sale—Misdemeanor—Special Instruction. Where, upon trial of a violation of the local option law, the court properly defined a sale, and submitted the theory of defense, and defendant did not ask further special instructions and except to the court’s charge, there was no error. 3. —Same—Indictment—Deputy Sheriff. The fact that one of the grand jurors who signed the indictment as foreman was a deputy sheriff at the time, was no disqualification. 4. —Same—Evidence—Bill of Exceptions. Where the defendant objected to certain questions asked by the county attorney with reference to a certain book, and it appeared on appeal that the bill of exceptions failed to show what defendant answered to said questions, there was no error. 5. —Same—Evidence—Book—Bill of Exceptions. Where, upon appeal from a conviction of a violation of the local option law, the bill of exceptions did not show the answers of the witness with reference to certain questions concerning a book from which the county attorney asked the questions, and which itself was not offered in evidence, there was no error; besides the questions were legitimate. 6. —Same—Verdict, Certainty of. Where, upon trial of a violation of the local option law, the language of the verdict was “a fine of $50 and forty days in jail,” the same was sufficiently plain and there was no reversible error.
59 Tex. Crim. 635Pratt v. State (1909)
The opinion states the case.
59 Tex. Crim. 645Laflour v. State (1910)
Tried below before the Hon. W. H. Pope. Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary. The opinion states the case.
59 Tex. Crim. 650Hudson v. State (1910)
1. —Murder—Charge of Court—Deadly Weapon. Where, upon trial of murder, the evidence showed that the deceased attacked the defendant with a pocket-knife which was capable of producing death, the court should have charged article 676, Penal Code, with reference to the presumed intent of the deceased, and the failure to do so was reversible error. See opinion for definition of deadly weapon under this issue. 2. —Same—Charge of Court—Threats—Harmless Error. Where, upon trial of murder, there was no issue as to whether the alleged threats had been uttered, there was no reversible error in the court’s charge leaving to the jury to determine whether deceased had uttered these threats, although such charge should not have been submitted. 3. —Same—Charge of Court—Apparent Danger. Where, upon trial of murder, the court distinctly told the jury that it was not necessary that there should be actual danger, an objection that defendant was deprived of a charge on apparent danger was untenable. 4. —Same—Charge of Court—Actual Attack. Where, upon trial of murder, the court’s charge was not subject to the objection that it confined defendant’s defense to an actual attack,. there was no error. 5. —Same—Charge of Court—Threats—Charge as a Whole, Where, upon trial of murder, the charge of the court upon threats, considered as a whole, directly applied the law of threats to the facts in his charge on self-defense, there was no reversible error.