Volume 60 — Texas Criminal Reports

One of defendant’s young children testified for the State that his parents had trouble on the Sunday previous to the killing and that defendant got a gun and tried to kill his mother, the deceased, but that the latter took it away from him and put it up; that on the day following he returned about noon from his field work, and that the witness’ mother was whipping his little sister, who was some six years old, for killing one of the little turkeys, and that she did so…

Tried below before the Hon. Albert S. Eylar. Appeal from a conviction of unlawfully taking water from an irrigation canal; penalty, a fine of $1.

<p>The opinion states the case.</p>

<p>1. —Extradition—Complaint—Validity of Writ — Federal law — State Statutes.</p> <p>Matters of extradition are under the Federal Constitution and Laws, and while State Statutes in aid and furtherance of such Constitution and Laws have been upheld and should be when called into use, it nevertheless does not affect the validity of the writ issued under authority of the Federal Constitution and Laws that the detailed provisions of the State Statutes are not in any given case required or used.</p> <p>2. —Same—Case Stated — State Statutes — Arrest.</p> <p>Where, in accordance with a warrant properly and legally issued by the Governor of this State upon due and legal request from the chief executive of another State, the relator was held in custody, he can not be heard to complain that he was not originally arrested in a particular manner directed by the State statute.</p> <p>3. —Same—Requisition of Demanding State — Charge made against the Relator— Presumption.</p> <p>It will be presumed, in the absence of. a showing to the contrary, that the Governor of the asylum state in issuing his warrant for the arrest of the relator, in extradition proceedings, acted only upon a proper and legal requisition by the Governor of the demanding State; and when the Governor’s warrant of arrest recites that relator was charged by indictment and convicted and that same was accompanied by copy of indictment, the same was sufficient.</p> <p>4. —Same—Affidavit—Indictment—Information—Conviction.</p> <p>The Federal Statutes, article 5278, requires that the demanding State must produce a copy of the indictment found, or affidavit made before a magistrate, and it may well be doubted that a person charged by information before conviction is within the meaning of section 2, of article 4, of the Federal Constitution, which requires that the fugitive from justice must be charged with some crime in the demanding State, but where a party has been legally charged under the laws of the demanding State with a crime by information and duly convicted thereof, he can be legally extradited from the asylum State to which he has fled.</p> <p>5. —Same—Fugitive from Justice, Who is.</p> <p>The Federal Constitution and laws define as to who is a fugitive from justice and are not controlled by State legislation, and the offenses not only in-elude felonies but misdemeanors as well; besides it was not shown that the crime charged against the relator was not a felony in the demanding State.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Assault to Murder — Bill of Exceptions — Practice on Appeal.</p> <p>Where, upon appeal from a conviction of assault with intent to murder, it appeared from the record that the bills of exception were so manifestly insufficient as not to call in review the matters to which they relate, the same could not be considered.</p>

From Galveston County. Original application for writ of habeas corpus asking release from arrest under second indictment found before the mandate was returned dismissing the appeal for want of sufficient indictment in the first case.

Appeal froiñ the District Court of El Paso. Tried below before the Hon. Jas. B. Harper. Appeal from a conviction of theft; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Hon. J. B. Keith. Appeal from a conviction of unlawfully alluring away a female for illicit sexual intercourse; penalty, a fine of $100 and sixty days confinement in the county jail. The opinion’ states the case. The evidence showed that the defendant and another solicited and allured the prosecutrix and another female to accompany them to Dublin for immoral purposes.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Theft — Charge of Court — Accomplice Testimony.</p> <p>Where, upon trial of theft, the court in his charge on accomplice testimony instructed the jury that the same must be corroborated by other evidence connecting the defendant with the offense, etc., the same was reversible error.</p> <p>[¡Rehearing denied October 12, 1910. ¡Reporter.]</p>

<p>Burglary — Statement of Facts — Extension of Time.</p> <p>Where, upon appeal from a conviction of burglary, it appeared from the record that the term of court continued for more than eight weeks, and the statement of facts and bills of exception had not been filed within thirty days after the final judgment and within the time allowed by law, and that the extension of said time was made by the trial judge after the time within which the filing should have been made had expired, the same could not be considered.</p> <p>[Rehearing denied October 12, 1910. Reporter.]</p>

<p>1. —Eorgery—Sufficiency of the Evidence.</p> <p>Where, upon appeal from a conviction of forgery, the same was sustained by the evidence, it will not be disturbed.</p> <p>2. —Same—Transcript—Practice on Appeal.</p> <p>Where an appeal is taken the record should be promptly sent to the Court of Criminal Appeals. See opinion of court emphasizing the importance of sending up transcripts promptly.</p> <p>[Behearing denied October 12, 1910. Beporter.]</p>

<p>The opinion states the case.</p>

<p>Keeping Disorderly House — Complaint—Filing—Date of Offense.</p> <p>Where, in a prosecution for keeping a disorderly house, the complaint charged a violation of the law subsequent to making and filing the complaint, the prosecution could not he sustained. Following Lanham v. State, 9 Texas Grim. App., 232, and other cases.</p>

<p>1. —Aggravated Assault — Assault to Murder — Allegations—Charge of Court.</p> <p>In a prosecution for assault with intent to murder, under an indictment in the usual form, a conviction for aggravated assault may be had, and no grounds of aggravation • need be set out in the indictment. Following Bittick v. State, 40 Texas, 117, and other cases.</p> <p>2. —Same—Charge of Court — Serious Bodily Injury.</p> <p>Where, upon trial of assault with intent to murder, the evidence showed the infliction of serious bodily injury, there was no error in the court’s charge on aggravated assault in omitting to submit the different grounds of aggravation.</p> <p>[Behearing denied October 12, 1910. Beporter.]</p>

<p>1. — Forgery—Valid Obligation — Indictment.</p> <p>In a prosecution for forgery the alleged writing need not be such as if genuine would be legally valid; if the same is valid on its face it is the subject of forgery, although collateral or extrinsic facts may exist which would render it absolutely void if genuine.</p> <p>2. — Same—Case Stated — Guardian’s Bond — Motion in Arrest.</p> <p>Where, upon trial of forgery of a guardian’s bond, the same appeared to he valid on its face as alleged in the indictment, there was no error in overruling the motion in arrest of judgment which attacked the indictment because some of the terms of the statute with reference to citation, notice, etc., were not complied with. Following King v. State, 42 Texas Crim. Rep., 108. Overruling Caffey v. State, 36 Texas Crim. Rep., 198.</p> <p>[Behearing denied October 12, 1910. Beporter.]</p>

<p>1. —Embezzlement—Indictment—Precedent.</p> <p>Where, upon trial of embezzlement, the indictment followed the form -which has been held good in former cases, there was no error in overruling a motion to quash the same.</p> <p>2. —Same—Want of Fraudulent Intent — Insufficiency of the Eyidence.</p> <p>Where, upon trial of embezzlement, the evidence wholly failed to show a fraudulent intent on the part of the defendant, the conviction could not he sustained. See opinion for facts held to be insufficient. Following Stallings v. State, 29 Texas Grim. App., 220, and other cases.</p> <p>[Rehearing denied October 12, 1910. Reporter.]</p>

<p>The opinion states the case.</p>

<p>Burglary — Sufficiency of the Evidence — Private Residence — Rape.</p> <p>Where, upon trial of a night-time burglary of a private residence, the evidence was sufficient to support the verdict of guilty, the same wifi not be disturbed. See opinion for facts held sufficient to sustain a conviction of burglarizing a private residence with intent to rape.</p> <p>[Rehearing denied October, 1910. Reporter.]</p>

<p>Forgery — Variance—Original Instrument.</p> <p>Where, upon trial of forgery of the description of a certain tract of land, the indictment alleged the letters ‘‘S. B. B.” and the original instrument alleged to have been forged and which was introduced in evidence contained the letters “N. S. B. B.,” the variance was fatal between the allegation and the proof.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Murder — Means Used — Charge of Court.</p> <p>Where, upon trial of murder, the defendant was convicted of manslaughter, and the evidence showed that the knife used by the defendant was an ordinary pocket knife with a blade about two or two and one-lialf inches long, and the court in his charge specifically instructed the jury that the instrument or means by which the homicide was committed must be taken into consideration and the manner of its use, etc., and also defined a deadly weapon and submitted all the issues arising on the testimony, there was no error.</p>

<p>The opinion states the case.</p>

<p>Burglary — Accomplice Testimony — Corroboration.</p> <p>Where, upon trial of burglary, the accomplice testimony was that the defendant was present at the time of the alleged breaking and theft, and the corroborating testimony showed that the defendant was found with the other parties who confessed the burglary and who carried with them the stolen goods, and the defendant placed himself with these parties shortly before the burglary, but denied the burglary itself, the testimony was sufficient to tend to connect the defendant with the commission of the offense.</p>

<p>The opinion states the case.</p>

Appéal from the Criminal District Court of Harris. Tried below before the Hon. C. W. Bobinson. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Carrying Pistol — Recognizance—Misdemeanor—Practice on Appeal.</p> <p>Where, upon appeal from unlawfully carrying a pistol, the recognizance failed to recite that the appellant was convicted of a misdemeanor but simply stated that he was convicted for carrying a pistol, the same was insufficient; but inasmuch as the appellant filed a new recognizance in accordance with law, the appeal is reinstated.</p> <p>2. —Same—Charge of Court — Repairing Pistol.</p> <p>Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant went to a certain house to get his pistol and claimed that he was carrying it to the repair shop, and that thereafter he turned aside from his journey and went to a private residence and exhibited his pistol, and the court submitted this issue in a proper charge to the jury, there was no error in refusing a similar requested instruction, and the conviction will not be disturbed.</p> <p>3. —Same—Argument of Counsel — Response to Defendant’s Counsel.</p> <p>Where, upon appeal from a conviction of unlawfully carrying a pistol, the bill of exceptions as accepted by the appellant showed that the remarks of the State’s counsel were in reply to appellant’s suggestion that the State had not brought witnesses to impeach his character, there was no reversible error.</p> <p>4. — Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of unlawfully carrying a pistol, the evidence showed that the alleged pistol was out of repair and defendant was taking it to a blacksmith for repair, which he had a right to do,' but violated the law by entering the private premises of other people and there displaying his pistol, the conviction was sustained. "</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Forgery — Indictment—Act of Another Need not be Pleaded.</p> <p>An indictment for forgery need not allege in express terms that the instrument. charged to have been forged was the act of another, or name the person whose act it purported to be. Following Huckaby v. State, 45 Texas Grim. Itep., 577.</p>

<p>The opinion states the case.</p>

<p>1. —Local Option — Evidence—Harmless Error.</p> <p>Where, upon trial of violation of the local option law, the testimony, with reference to acts of the prosecutor and a third party after the whisky had been delivered to him by the defendant, and in defendant’s absence, while not strictly relevant, was not a ground for reversal.</p> <p>2. —Same—Charge of Court — Accomplice.</p> <p>On trial of a violation of the local option law there was no error in the court’s failure to charge that the prosecuting witness was an accomplice. Following Sears v. State, 35 Texas Grim..Rep., 442, and other cases.</p> <p>3. —Same—Misconduct of Jury — Motion for Hew Trial.</p> <p>Where the defendant, in his motion for new trial alleging misconduct of the jury, did not support the same by affidavit or offer any proof in support of it, there was no error in overruling the, motion, besides the affidavits of all the jurors denied this charge. -</p>

<p>1. —Murder—Jury and Jury law — Insanity—Seasonable Doubt — Preponderance of Evidence.</p> <p>Where, upon trial of murder, the defendant asked the jurors on their voir dire if they would give the defendant the benefit of the doubt as to his insanity, to which the district attorney objected, and the court instructed the jurors that they need not ansrver the question; that the doctrine of reasonable doubt did not apply to the issue of insanity, but that the jury must find from the preponderance of the evidence that the defendant was insane at the time of the commission of the offense before they could acquit, there was no error.</p> <p>2. —Same—Challenge for Cause — Insanity—Overwhelming Proof.</p> <p>Where, upon trial of murder, a juror upon his voir dire answered that he would not acquit the defendant on the theory of insanity even if he was convinced and the instruction of the court was to acquit, unless the evidence on this point was overwhelmingly convincing to him of the fact of insanity, it was reversible error not to permit defendant to challenge said juror for cause.</p>

Tried beloiv before the Hon. Thomas L. Blanton. Appeal from a conviction of receiving and concealing stolen property; penalty, tivo years imprisonment in the penitentiary. The opinion states the case.

<p>Local Option — Agency—Charge of Court — Practice in Misdemeanor Trial.</p> <p>Where, upon trial of a violation of the local option law, the evidence showed that there was a question as to whether defendant acted as agent of a third party in selling the whisky or whether he did so on his own account, and the defendant excepted to the court's charge submitting this issue but requested no special charge thereon, the same could not be reviewed on appeal</p>

<p>1. —Murder—Evidence—Conversation.</p> <p>Where, upon trial of murder, the evidence of the State was that the defendant said at a certain time and place that he was going to wear out his pistol over the head of the State’s witness and have a settlement with deceased, it was reversible error not to permit the defendant to prove by a witness that the deceased and not the defendant made said remark; the defendant having denied making said remark.</p> <p>2. —Same—Evidence—Accidental Killing — Discharge of Pistol.</p> <p>Where, upon trial of murder, the defendant claimed that the pistol dropped to the floor and was thereby accidentally discharged, the shot taking effect in the body of the deceased, and the State had shown that the pistol was so constructed that it could not be fired in the manner claimed by defendant, it was reversible error not to permit the defendant to show that it could be made to explode in this manner.</p> <p>3. —Same—Charge of Court — Negligent Homicide.</p> <p>Where, upon trial of murder, the State’s evidence excluded everything but a deliberate killing, and that of the defendant that the killing occurred as an accident, the court should not have charged on negligent homicide</p> <p>4. —Same—Continuance—Practice on Appeal.</p> <p>Where a case is reversed upon other grounds, the question of the overruling of the defendant’s motion for continuance need not be considered.</p>

<p>1. — Murder—Charge of Court — Recalling Jury — Practice in District Court.</p> <p>Upon trial of murder there was no error in the court’s action in recalling the jury and withdrawing a charge from their consideration ^nd giving them other proper instructions. Following Bogan v. State, 30 Texas Crim.'App., 466.</p> <p>Z. — Same—Charge of Court — Confessions—Corroboration.</p> <p>On trial of murder, where the court charged the jury that an extra-judicial confession standing alone is not sufficient proof of the corpus delicti, but is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction in the minds of the jury beyond a reasonable doubt, there was no error; and such suppletory evidence need not be conclusive in its character and may be proved by circumstantial evidence.</p> <p>3. — Same—Sufficiency of the Evidence — Corpus Delicti.</p> <p>Where, upon trial of murder, the evidence was sufficient to show that the charred remains was the body of the deceased; that he came to his death by violent means, and that the defendant was one of the guilty agents that inflicted the injury which caused his death, the conviction of murder is sustained.</p>

<p>Disturbing Peace — Affidavit—Information—Misdemeanor.</p> <p>All prosecutions for misdemeanors in the County Court must be by information, without reference to whether the offense is one which might be prosecuted to a final termination in the Justice Court, and where no information was filed in the County Court, the defendant could not be prosecuted to conviction on affidavit.</p>

<p>1. —Offering Bribe — Witness—Charge of Court — Alibi.</p> <p>Upon trial of offering to bribe a witness, where the defendant’s evidence was to the effect that he was at home at the particular time of the alleged offense, there was no error in submitting the law of alibi, as the same was favorable to the defendant.</p> <p>2. —Same—Prosecuting Counsel — Affidavit—Attorney and Client.</p> <p>Where the defendant, in his motion for new trial, alleged misconduct of the jury, and the State contested the same and attached to such contest affidavits of the jurors, taken before the private prosecutor as notary public, such contest should have been stricken out on motion of the defendant, as interested counsel could not take said affidavits.</p> <p>3. —Same—Misconduct of Jury — Allusion to Defendant’s Failure to Testify.</p> <p>Where, upon trial of bribery, the defendant failed to take the witness stand, and the jury in their retirement, before they found a verdict, alluded to and discussed this matter, the same was reversible error.</p>

<p>1. — Unlawfully Carrying Pistol — Plea of Guilty — Practice in County Court.</p> <p>Where the court convened by law on the second of November to continue legally in session for eight weeks, and entered an order postponing the regular business of the docket to the seventh of December following, except jail cases, where the defendant was unable to give bond, a plea of guilty during such time was legal.</p> <p>3. — Same—Influencing Defendant to Plead Guilty — Discretion of-Court.</p> <p>Where, upon conviction of unlawfully carrying a pistol, it appeared on appeal that there was a contest in the court below over the matter as to whether appellant was persuaded to enter his plea of guilty, which the court decided adversely to him, the judgment will not be disturbed.</p>

<p>The opinion states the case.</p>

The testimony showed that the defendant, in taking his seed cotton to the gin to be ginned, had so loaded it in his wagon as to have good cotton at the bottom 'and top, and bolls and burs in the center, and that it was so ginned and baled, against the protest of the ginner, who proposed to mark it “whitewashed,” to which defendant objected and took it away unmarked, and sold it as strict low middling to the loss of the purchaser. The opinion states the case.

<p>The opinion states the case.</p>

The testimony for the State showed that the defendant held the pistol upon the prosecutor for awhile, saying that he had gotten the gun especially for the prosecutor; that the prosecutor told defendant he would get an officer to attend to him, went away and defendant followed him for some distance; that there was some ill-feeling between the parties, and that they were but a short distance apart at the time the pistol was drawn. The opinion states the case.

<p>The opinion states the case.</p>

<p>1. —Local Option — Grand Jury — Deputy Sheriff.</p> <p>A deputy sheriff is not disqualified from sitting on the grand jury, and the indictment can not be quashed on that account.</p> <p>2. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, the evidence was sufficient to sustain the convection, although the credibility of the State’s witness was attacked strongly by the defendant’s testimony, the same will not be disturbed.</p> <p>3. —Same—Evidence—Bill of Exceptions.</p> <p>Where, upon appeal from a conviction of a violation of the local option law, the bills of exception failed to disclose the object and purpose of the rejected testimony, or what the answers of the witness would have been, the same can not be considered.</p> <p>4. —Same—Charge of Court — Singling out Testimony — Credibility of Witness.</p> <p>Upon trial of a violation of the local option law there was no error in the court’s refusal to submit a special instruction singling out testimony as to the credibility of a State’s witness and directing the jury to acquit the defendant if they had a reasonable doubt whether said witness had been successfully impeached.</p> <p>5. —Same—Charge of Court — Sale, Definition of.</p> <p>Where, upon trial of a violation of the local option law, there was no question as to the manner of the alleged sale of the alleged liquor — the State affirming a sale, and the defendant denying it — there was no error in the court’s refusal of defendant’s special instruction defining a sale.</p> <p>6. —Same—Accomplice—Immunity of Witness.</p> <p>The purchaser of intoxicating liquor is not an accomplice to the person who sells it to him.</p> <p>7. —Same—Charge of Court — Reasonable Doubt.</p> <p>Where the court, in his main charge, submitted reasonable doubt, there was no error in the court’s refusal of special instructions thereon.</p> <p>8. —Same—Local Option in Eorce — Charge of Court.</p> <p>Where there was ,no issue made on the question of proof as to whether local option was in force, there was no reversible error in the court’s charge thereon; although unnecessary.</p>

<p>The opinion states the case.</p>

<p>local Option — Sufficiency of the Evidence — Sale.</p> <p>Where, upon trial of a violation of the local option law, there was ample evidence showing an illegal sale, and the question was one of fact for the jury the conviction will not be disturbed.</p>

<p>The opinion states the case.</p>

<p>1. —Burglary—Practice on Appeal.</p> <p>An assignment that the court failed to charge the jury the whole law of the case in the light of the evidence is too general to be considered.</p> <p>2. —Same—Postponement—Agreement.</p> <p>Where, upon appeal from a conviction of burglary, the record did not show any agreement between the defendant and the district attorney tof postpone the case, there was no error in forcing him to trial.</p> <p>3. —Same—Charge of Court — Force—Railway Car.</p> <p>Where the burglary was committed in a box railway car by force it was not necessary to submit a charge as to whether the burglary was committed in the daytime or night-time.</p> <p>4. —Same—Charge of Court — Property Found.</p> <p>Where,, upon trial of burglary, defendant claimed to have found the alleged stolen property, and the court properly submitted this issue, there was no error in refusing special charges thereon.</p> <p>5. —Same—Charge of Court — Explanation.</p> <p>Where, upon trial of burglary, the evidence showed that defendant gave no explanation at the time he was first accosted as to how he acquired possession of the alleged stolen property, the court was not called upon to submit a charge thereon.</p>

<p>The opinion states the case.</p>

<p>Business of Selling Intoxicating Liquors — Indictment.</p> <p>Upon trial of the offense of engaging in the business of selling intoxicating liquors in violation of law, where the indictment did not allege the fact of any sale or sales by the defendant, and did not give the name of any person or persons to whom the sales were made, the same was insufficient. Following Fitch v. State, 58 Texas Grim. Rep., 366, and other cases.</p>

<p>1. —Robbery—Putting in Fear of Life — Charge of Court.</p> <p>Where the indictment charged a robbery by putting in fear of life and bodily injury, but the testimony did not show that the injured party was put in fear of his life, the court erred in charging this part of the law to the jury.</p> <p>2. —Same—Evidence—Moral Turpitude.</p> <p>Where, upon trial of robbery, the district attorney was permitted on cross-examination of defendant to interrogate him about offenses which involved no moral turpitude, the same was inadmissible, and reversible error.</p> <p>3. —Same—Argument of Counsel — Bill of Exceptions.</p> <p>Where there was no bill of exceptions reserved to the action of the district attorney in reading to the jury the court’s charge to the grand jury, an objection on this ground could not be considered on appeal. 6</p>

<p>Habeas Corpus — Jurisdiction—Justice of the Teace — County Court.</p> <p>Where it appeared upon habeas corpus that the relator was brought by affidavit before a justice of the peace, wherein he was charged with one offense over which the justice of the peace had no jurisdiction, and also with another offense over which the County Court had concurrent jurisdiction with the justice of the peace; and the justice held an examining court and bound relator over to the County Court where he was convicted of the latter offense, the relator could not complain and the action of the justice of the peace was proper.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1 — Murder—Jury and Jury Law — Special Venire — Certified Copy — Seal—Nunc pro tune.</p> <p>Where, upon appeal from a conviction of murder, it appeared from the record that from the date of his arrest up to the time of his trial, appellant remained in jail, and had never at any time waived service of a copy of the list of jurors summoned under the special venire facias, and upon trial moved to quash said venire on the ground that he had not been served with certified copy thereof, and it further appeared that said writ of venire which was served upon him did not bear the seal of the court and was not served upon him one day before the trial. Held, reversible error and the seal could not be affixed nunc pro tunc. Distinguishing Biggerstaff v. State, 59 Texas Crim. Rep., 552.</p> <p>2. —Same—Proper Practice.</p> <p>The proper practice would have been to have postponed the case, and directed the service of a copy of the venire properly attested by the clerk.</p> <p>3. —Same—Statement of Facts — Practice on Appeal.</p> <p>Where, up on appeal from a conviction of murder, it appeared from the record that the appellant entered the plea of not guilty, he is entitled to the service of a venire in the manner provided by law, and the case will be reversed although there was no statement of facts on trial. Following Brown v. State, 57 Texas Crim. Rep., 269; 122 S. W. Rep., 565.</p> <p>[No motion for rehearing filed November 11, 1910. — Reporter.]</p>

<p>1. —Scire Facias — Judgment Nisi — Void Bond.</p> <p>Where, upon appeal from a final judgment on a bond requiring the appearance of a witness, it appeared that the bond omitted to state by what authority the officer required the said witness to enter into bond, and also failed to describe the court at wlficli he was to appear, the same was null and void.</p> <p>2. —Same—Judgment Nisi — Amendment—Notice.</p> <p>After a judgment nisi was entered, the court had no authority to amend the same after the term of court had expired without due notice to the defendant.</p>

<p>The opinion states the case.</p>

<p>1. —Rape—Written Confession — Warning—Person to whom Made.</p> <p>Upon the trial of rape, where the written confessions of defendant which were introduced in evidence by the State failed to state in the body thereof that the confessions were made to the person by whom the warning had been given that such statement might be used in evidence against the defendant on the trial for the offense concerning which the confessions were therein made, the same were inadmissible in evidence and their admission was reversible error. Following Robertson v. State, 54 Texas Grim. Rep., 21; Young v. State, id., 417. Overruling Knight v. State, 55 Texas Grim. Rep., 243; Knuckles v. State, id., 6; Ramsey, Judge, dissenting.</p> <p>2. —Same—Policy of the legislature — Proof dehors the Record.</p> <p>The evil the Legislature intended to cure was that confessions had been extracted illegitimately, and that therefore the confession must be made in writing to the party giving the warning, and that these matters must be stated in the body of the written confessions and can not be proved dehors the record.</p> <p>3. —Same—Evidence—Nymphomania—General Reputation — Query.</p> <p>Where, upon trial of rape, the defendant contended that the prosecutrix was laboring under the disease of nymphomania, and that if her mother and blood relations were people of inordinate sexual passions that it would predispose the prosecutrix to this disease of nymphomania, he could not establish this fact by the general reputation of said blood relatives, and the court below did not err in refusing to permit him to do so. Whether the fact of such predisposition could be proved at all as contended is not decided.</p> <p>4. —Same—Charge of Court — Nymphomaniac—Mental Competence of Witness.</p> <p>Where, upon trial of rape, the defendant claimed that the prosecutrix was a nymphomaniac, and the court submitted the issue of mental incapacity of the witness in a proper charge, and required the jury to find that the defendant must establish the mental incapacity of the witness by a preponderance of evidence that the witness was so incapacitated at the time she testified, there was no reversible error. Following Tubb v. State, 55 Texas Grim. Rep., 606.</p> <p>5. —Same—limiting Argument of Counsel — Discretion of Court — Practice.</p> <p>Upon trial of rape, where the court limited the argument of defendant’s counsel to one hour, the same is not under the discretion of the court reversible error; but where the issue is a novel one as in this case it is suggested that sufficient time be given to defendant’s counsel in which to present the case to the jury; as in all capital cases ample opportunity and time for such arguments should be given.</p> <p>6. —Same—Evidence—Marriage.</p> <p>Upon trial of rape, evidence that the defendant was a married man should not have been admitted.</p>

<p>1. —Habitual Drunkard — Selling Intoxicating. liquors — Requested Charge-Presumption.</p> <p>Where, upon appeal from a conviction of a misdemeanor, the requested special charge was not marked refused or given, the presumption is that it was given. Following Smith v. State, 27 Texas Crim. App., 50.</p> <p>2. —Same—Charge of Court — Intoxicating liquors — Whisky.</p> <p>Where the intoxicant sold is shown to be whisky, the trial court is authorized to assume in his charge that whisky is an intoxicant. Following Loveless v. State, 40 Texas Crim. Rep., 221, and other cases.</p>

<p>1. —Assault to Murder — Continuance.</p> <p>Where the application for continuance was made for the absence of a witness who was shown by other witnesses not to have been present at the time of the alleged assault, and whose testimony would not have been material on the trial, there was no error in overruling same.</p> <p>2. —Same—Charge of Court — Practice on Appeal.</p> <p>Where the requested charge is not embodied in the transcript, the same can not be considered on appeal.</p> <p>3. —Same—Preparation for Trial.</p> <p>Where, upon appeal from a conviction of assault to murder, there appeared nothing of record to support the contention of appellant that he had no time to make arrangements for trial, there was no error.</p> <p>4. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of assault with intent to murder, the evidence sustained the charge, the conviction will not be disturbed.</p>

<p>The opinion states the case.</p>

<p>Theft — Bailee—Landlord and Tenant — Insufficiency of the Evidence.</p> <p>Where, upon trial for theft as bailee, the evidence showed that the defendant had possession of the landlord’s interest in certain cotton by virtue of his tenancy, and that he sold the cotton and appropriated the proceeds instead of placing them in the bank as he was directed to do, this was not theft under bailment and the conviction could not be sustained. Distinguishing Livingston v. State, 38 Texas Crim. Rep., 535.</p>

<p>1. — Aggravated Assault — Statement of Facts — Filing after Adjournment.</p> <p>The statement of facts must be filed within thirty days when authorized to be filed after adjournment of the term, and where the same was filed after said time it cannot be considered on appeal.</p> <p>2. — Same—Charge of Court — Practice—Misdemeanor. v</p> <p>In misdemeanor eases, an exception must be taken to the charge of the court at the time and a requested instruction submitted therewith, or else an objection to the charge of the court cannot be considered on appeal.</p>

<p>1. —Aggravated Assault — Statement of Pacts — Practice on Appeal.</p> <p>Unless the instrument filed as the statement of facts is so fatally defective in its proper authentication that it cannot in reason and fairness be considered as a statement of facts made up and approved in accordance with law, the same will be considered.</p> <p>2. —Same—Religious Worship.</p> <p>Where, upon trial of aggravated assault, the evidence showed that at the moment the minister dismissed the congregation and before he had left his place, the defendant hurriedly approached the minister and told him that he desired to speak to him, and passed with him to the corner of the building outside of the house and there struck him before the congregation had dispersed, the defendant was guilty of aggravated assault.</p> <p>3. —Same—Bill of Exceptions.</p> <p>Where, upon appeal from a conviction of aggravated assault, exception was taken to the withdrawal of certain testimony, but no bill of exceptions was reserved at the time, the matter could not be considered on appeal.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. — Robbery—Continuance—Affidavit—Motion for New Trial.</p> <p>Where, upon trial of robbery, the defendant’s application for continuance showed proper diligence, and the testimony was material and supported the defendant’s testimony that he had won the alleged stolen money at cards, the same should have been granted; especially as the witness’ affidavit could not be secured to the motion for new trial.</p> <p>3. — Same—Force—What Constitutes Robbery.</p> <p>Where, upon trial of robbery, the State’s evidence showed that the defendant ordered the prosecutor to hold up his hands, and through fear of his life he held up his hands and defendant went through his pockets, this would be such an assault and the use of such force which would bring the defendant clearly within the rule defining robbery. Following Tones v. State, 48 Texas Grim. Eep., 303, and other cases.</p> <p>3. — Same—Charge of Court — Bailee—Conversion.</p> <p>Upon trial of robbery there was no error in the court’s failure to charge upon the subject of theft either by bailee or by conversion, under the state of proof.</p>

From Nacogdoches County. Original application for writ of habeas corpus asking release from a conviction of a violation of the Sunday law by permitting the game of baseball to be played for public amusement and charging admission fees thereon. The opinion states the case.

<p>Habeas Corpus — Bail—Cause of Death.</p> <p>Where it was not shown by the facts that the death of the deceased resulted completely from the acts of the defendant, and the court in the trial of the ease would be compelled to charge on assault with intent to murder, the relator is entitled to bail. Following Noble v. State, 54 Texas Grim. Rep., 436, and other cases.</p>

<p>Aggravated Assault — Notice of Appeal — Practice on Appeal.</p> <p>Where, upon appeal from a conviction of aggravated assault, the record failed to show that notice of appeal was entered upon the minutes of the court, the appeal must be dismissed; and the request of the appellant to fix the amount of recognizance on appeal cannot be construed that he gave notice of appeal as required by law.</p>

<p>local Option — Purchaser—Insufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, the evidence did not show that the defendant knew that the State’s witness was buying the whisky for the purchaser, or was acting as his agent, and no privity of contract was shown to exist between the defendant and the purchaser alleged in the indictment, the conviction could not be sustained.</p>

<p>The opinion states the case.</p>

<p>1. —Theft of Hog — Continuance—Bill of Exceptions — Practice on Appeal.</p> <p>Where the record on appeal recited that the application for continuance had been overruled and that appellant has excepted thereto, but there was no bill of exceptions in the record, the matter could not be reviewed.</p> <p>2. —Same—Charge of Court — Principals.</p> <p>Where, upon trial of theft of hogs, the court did not charge on the subject of principals but the guilt of the defendant was made to depend on his own act and conduct as an active participant in the theft, independent of and without reference to the acts of the other parties involved in the transaction, there was no error in the court’s failure to submit a charge with reference to these parties.</p> <p>3. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of theft of hogs, the evidence supported the conviction there was no error.</p>

The State’s testimony showed that the defendant at various times sold whisky by the pint to different persons, amounting to five or six sales, about the time alleged in the indictment; that he carried the whisky in a buggy and sold some out of his trunk; that he worked about at odd jobs, etc. The opinion states the case.

<p>The opinion states the case.</p>

<p>1. —Murder—Certified Copy of Indictment — Motion to Quash,</p> <p>Where, upon appeal from a conviction of murder, the appellant complained that the court below should have quashed the indictment because, there was no entry of same on the minutes of the court and defendant had not been served with a certified copy thereof, but it appeared from the record that such entry was made and that the defendant was duly served with a certified copy of the indictment, there was no error; besides this was not ground for quashing the indictment and could have only afforded ground for postponement. Following De Giles v. State, 20 Texas Crim. App., 145, and other eases.</p> <p>2. —Same—Practice in District Court — Nunc pro tunc.</p> <p>Where the State’s counsel made a motion to enter mmo pro tunc upon the minutes of the court the presentment of the indictment which the court granted and had new precept issued, there was no error.</p> <p>3. —Same—Special Venire — Service of Certified Copy.</p> <p>Where, upon trial of murder, the defendant complained that he had not been duly served in accordance with law with a certified copy of the special venire, and the State contested this motion and the record on appeal showed that such service was duly made upon defendant, and there was no bill of exceptions with reference to this matter in the record, the same could not be considered on appeal.</p> <p>4. —Same—Name of Injured Party — Variance.</p> <p>Where the defendant in his motion for new trial after conviction of murder claimed a variance in the name of the party injured, but there was no evidence in the record on appeal upon this question, the matter could not be reviewed, and there was no error.</p> <p>5. —Same—Sufficiency of the Evidence — Plea of Guilty — Death Penalty.</p> <p>Where, upon trial of murder, the defendant pleaded guilty after being duly admonished, and the court charged the law, and the evidence sustained the conviction of the death penalty, the same will not be disturbed on appeal.</p>

<p>Swindling — False Representation — Insufficiency of the Evidence.</p> <p>Where, upon trial of swindling which involved the question of false cotton weights, the evidence showed that there were no false representations made by the defendant to the prosecutor, or that defendant was guilty of swindling him in any manner with regard to the weighing of the cotton, the conviction could not be sustained.</p>

<p>The opinion states the case.</p>

<p>1. —Murder—Charge of Court — Self-Defense—Statutes Construed.</p> <p>Upon trial of murder, where the evidence showed defendant’s perfect right of self-defense, it was reversible error to submit a charge on Article 677, Penal Code, requiring a resort to other means than killing the deceased.</p> <p>2. —Same—Charge of Court — Manslaughter.</p> <p>Where, upon trial of murder, it was shown that the deceased was a large heavy man of an overbearing nature; that he was drinking and only a short time before he was killed had twice knocked down the defendant, and undertaken to cut him with a knife, that he was armed with a shotgun at the time of the killing, etc., the court should have submitted the issue of manslaughter, and his failure to do so was reversible error.</p> <p>S. — Same—Variance—Name of Injured Party.</p> <p>Where the indictment charged the name of the injured party to be Berry Robinson, and the proof showed it to be Bendy Robinson, the variance was fatal.</p>

<p>1. —Assault to Murder — Charge of Court — Aggravated Assault.</p> <p>Where, upon trial of assault to murder, the evidence raised the issue of premeditated design but without the specific intent to kill, and by the use of means calculated to inflict great bodily injury, the court should have instructed the jury on the law of aggravated assault.</p> <p>2. —Same—Charge of Court — Adequate Cause.</p> <p>Where, upon trial of assault to murder, the evidence did not call for a. charge on aggravated assault on account of passion arising from an adequate cause, there was no error in the court’s failure to charge thereon.</p>

<p>1. —Assault to Murder — Charge of Court — Specific Intent to Kill.</p> <p>Where, upon trial of assault to murder, the evidence showed that the difficulty arose very suddenly, and that it was quite questionable whether defendant intended to kill the deceased, the court should have submitted defendant’s special instruction that the jury could not find the defendant guilty of assault to murder unless there Avas a specific intent to kill on the part of the defendant.</p> <p>2. —Same—Charge of Court — Defense of Another.</p> <p>Where, upon trial of assault to murder, the evidence raised the issue that the defendant Avas acting in the defense of,his brother, the court should have submitted this phase of the case.</p> <p>3. —Same—Verdict—Grade of Offense,</p> <p>It is better practice, in ease of a graded offense, for the jury to state in their" verdict explicitly the precise offense of which they find defendant guilty; and this should be done in a case of assault to murder Avhere the defendant is found guilty of that offense.</p>

<p>1. —Local Option — Indictment—Punishment—Repeal.</p> <p>The Act of the Legislature changing the punishment from a misdemeanor to a felony for a violation of the local option law, did not repeal the law as it then existed, and the court properly overruled a motion to quash the indictment on this ground. Following Lewis v. State, 58 Texas Grim. Rep., 351.</p> <p>2. —Same—Bills of Exception — Practice on Appeal.</p> <p>Where the appellant complained that he was not ready for trial in the lower court and withdrew his announcement, but there were no bills of exception in the record, the matter could not be reviewed on appeal.</p>

<p>1. —Murder—Charge of Court — Manslaughter.</p> <p>Where, upon trial of murder, the defendant was convicted of manslaughter it is unnecessary on appeal to discuss the alleged errors in regard to the court’s charges on murder.</p> <p>2. —Same—Charge of Court — Provoking Difficulty.</p> <p>Where, upon trial of murder, the evidence showed a prior difficulty and a complete reconciliation thereafter between the parties, and did not show any intervening trouble to tbe time of the difficulty that resulted in the homicide, and there was no evidence on the part of tbe State or the defendant to show any act or word or conduct on the part of the defendant to provoke the difficulty, it was reversible error to submit a charge thereon.</p> <p>3. —Same—Charge of Court — Self-Defense.</p> <p>Where, upon trial of murder, the evidence showed that just before the homicide the deceased was attacking the defendant with an iron bar, it was reversible error in the court’s charge that the defendant must resort to all other means to prevent the injury before the killing would be justifiable, as this was an unwarranted restriction on the right of self-defense.</p> <p>4. —Same—Charge of Court — Provoking Difficulty — Manslaughter.</p> <p>Where, upon trial of murder, the issue of provoking the difficulty was not in the case it was error for the court in his charge on manslaughter to submit a charge thereon.</p> <p>5. —Same—Charge of Court — Provoking Difficulty — Converse Proposition.</p> <p>Where, upon trial of murder, the evidence showed that the defendant had abandoned a prior difficulty with deceased and a reconciliation had taken place between them, the same excluded the idea of provoking the difficulty, but inasmuch as the court had given a charge on provoking the difficulty the converse of that proposition should have been given both in submitting the issue of manslaughter and self-defense.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Swindling — Information—Affidavit.</p> <p>Where, in a prosecution for swindling, the affidavit and information did not show any connection between the false representations and the obtaining of the property, and failed to allege in any way that the prosecutor intended to part with the title of the latter, and the entire charge was inferentially made, the same was bad on motion to quash.</p>

<p>Local Option — Felony—Statutes Construed.</p> <p>Before punishment by confinement in the penitentiary can be assessed for a violation of the local option law, it must appear that local option has been carried in the territory where the prosecution is pending subsequent to the passage of the Act making the violation of same a felony. Following Lewis v. State, 58 Texas Grim. Rep., 351.</p>

<p>Assault to Rape — Charge of Court — Principals.</p> <p>Where, upon trial of assault with intent to rape against defendant and others, the defendant being alone on trial, the evidence did not show that the defendant did anything, or assented to anything that was done by the other parties at the time of the assault, and the court charged on the law of principals that all those who were present were guilty of the offense, if they agreed thereto, and refused the defendant’s requested charge submitting defendant’s theory of defense that he was not agreeing to such an assault, there was reversible error.</p>

<p>1. —Murder—Charge of Court — Accomplice.</p> <p>Where, upon trial of murder, the court instructed the jury that they could not find defendant guilty upon the testimony of an accomplice unless they first believed that such testimony was true and showed or tended to show that the defendant was guilty as charged in the indictment, and that they could not convict defendant unless there was other evidence tending to connect the defendant with the commission of the offense, etc., the same was reversible error. Following Fruger v. State, 56 Texas Grim. Rep., 393, and other cases.</p> <p>2. —Same—Form of Charge on Accomplice Testimony.</p> <p>The contention of the State that the testimony of the accomplice comprised within .itself every fact essential to conviction, and that therefore the court’s charge on accomplice testimony was not reversible error, is untenable. See opinion for charge on accomplice testimony as laid down in Campbell v. State, 57 Texas Grim. Rep., 301, and other cases.</p> <p>3. —Same—Charge of Court — Robbery—Malice Aforethought.</p> <p>Where, upon trial of murder, there was evidence that the killing was committed in an attempted robbery, it was reversible error for the court to charge the jury that if any person in the perpetration or in the attempt to perpetrate robbery upon another, shall take the life of such other, he shall be deemed guilty of murder, and a murder committed under such circumstances is per se murder of the first degree; the vice in this charge being that it authorized a conviction in the absence of malice. Following Oates v. State, 51 Texas Grim. Rep., 449, and other cases.</p> <p>4. —Same—Charge of Court — Requested Charges.</p> <p>Where the matters covered by the special charges were sufficiently embodied in the court’s main charge, there was no error in refusing same.</p>

<p>Murder — Manslaughter—Conflict of Testimony.</p> <p>Where, upon trial of murder, the defendant was found guilty of manslaughter upon conflicting testimony, but there was sufficient evidence to sustain the conviction, the same will not be disturbed on appeal.</p>

<p>The opinion states the case.</p>

<p>Carrying on Occupation of Selling Intoxicating liquors in local Option Territory — Indictment.</p> <p>Where, upon trial of carrying on the occupation of selling intoxicating liqiiots in local option territory, the indictment failed to allege the name or names of any person to whom the intoxicants were sold, or that they were sold, the same was insufficient. Following Fitch v. State, 58 Texas Crim. Bep., 366.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. — Arson—Conflict of Testimony — Question of Fact;</p> <p>Where, upon trial of arson, the testimony of the defense strongly conflicted with the State’s testimony on the question of alibi, insanity, etc., the same was a question of fact for the jury.</p> <p>2. — Same—Charge of Court — Weight of Evidence.</p> <p>Where, upon trial of arson, the court so submitted in his charge to the jury the issues raised by the evidence that it left them to be decided by the jury, the same was not a charge on the weight of the evidence.</p> <p>[Rehearing denied November 30, 1910. — Reporter.]</p>

<p>1. —Assault to Rob — Judgment—Reforming same — Practice on Appeal.</p> <p>Where the indictment contained two counts, only one of which was submitted, and the verdict was general and the judgment based on the count dismissed, the appellate court will so reform the judgment as to comply with verdict.</p> <p>2. —Same—Sufficiency of the Evidence.</p> <p>Upon trial of assault to commit robbery, where there was no positive testimony that the defendant got the property which the assaulted party missed immediately after the robbery and which he had at the time the assault was made, the conviction was sustained although it was not positively shown that the defendant took the property.</p> <p>[Behearing denied November 30, 1910. — Beporter.]</p>

<p>1. —Theft—Charge of Court — Misdemeanor—Practice on Appeal.</p> <p>In order to entitle appellant to a review of the court’s charge in a misdemeanor, he must request a special charge, and except to the court’s charge.</p> <p>2. —Same—Argument of Counsel — Bequest to Withdraw Argument Necessary.</p> <p>Where, upon trial of theft, the record showed on appeal that the defendant’s counsel had made some comment upon the failure of the State to connect the defendant with all the cotton sold by him, and that the argument of State’s counsel in response thereto called the attention of the jury to the fact that his inability to do so was due to objection of counsel by the defendant; and there was no request to withdraw the argument of State’s counsel from the jury, there was no reversible error. Besides it was not likely that the argument could have affected the jury.</p> <p>3. —Same—Sufficiency of the Evidence.</p> <p>Where upon trial of theft the evidence was sufficient to sustain the verdict of guilty, the conviction will not be disturbed.</p>

<p>1. —Rape—Charge of Court — Instructing Verdict of Not Guilty.</p> <p>Where, upon trial of rape by fraud, the evidence showed a sham marriage between a manned man and an unmarried woman above the age of consent and there was also evidence that the woman believed she was entering into a valid marriage, it was not reversible error not to instruct a verdict of not guilty upon defendant’s request. Following Lee v. State, 44 Texas Crim. Rep., 354. Davidson, Presiding Judge, dissenting.</p> <p>2. —Same—Sufficiency of the Evidence — Practice on Appeal.</p> <p>Where, upon appeal from a conviction of rape, the case was reversed on other grounds than the sufficiency of the evidence, the appellate court will not comment on the probative force of the evidence.</p> <p>3. —Same—Evidence—Declarations of Defendant — Sham Marriage.</p> <p>Upon trial of rape, where the indictment among other allegations charged that the rape was committed by fraud, and there was evidence of a sham marriage, there was no error in permitting the State to show the declarations of the defendant that he had property and was able to marry prosecutrix.</p> <p>4. —Same—Evidence—Marriage—Fraud.</p> <p>Upon trial of rape, where the allegation was that the defendant committed the same by fraud, and there was evidence of a sham marriage, there was no error in permitting the State to show that the defendant at the time of his courtship with prosecutrix was a married man; he holding himself out as a single man.</p> <p>5. —Same—Evidence—Common Law Marriage — Mock Marriage.</p> <p>Where, upon trial of rape by fraud, the evidence showed that the defendant held himself out as a single man, and that under the facts of the case their alleged marriage would have been legal as a common law marriage, there was no error in permitting the State to show that the defendant at the time of said alleged marriage was a married man and could not contract a common law ,marriage.</p> <p>6. —Same—Evidence—General Reputation of Prosecutrix.</p> <p>Upon trial of rape, where the defendant sought to contradict the prosecutrix on her cross-examination as a witness, there was no error in permitting the State to show the good reputation of prosecutrix for chastity and truth, although the wisdom of the court in admitting some of this testimony in advance of contradicting her may be doubted'.</p> <p>7. —Evidence—Declarations by Prosecutrix — Letters.</p> <p>Upon trial of rape by fraud there was no error in admitting the declarations of prosecutrix in evidence which were made while she was living with the defendant and was apparently his wife, to the effect that they were married; nor was there any error in admitting certain letters written by her during this time, stating that they were married.</p> <p>8. —Same—Declarations by Prosecutrix — Evidence—Marriage.</p> <p>Upon trial of rape by fraud, there was no error in' permitting the State to introduce the declarations of prosecutrix that she was married to the defendant, when defendant was' arrested and it was first brought to her attention that the alleged marriage was a nullity.</p> <p>9. —Same—Evidence—Plight. •</p> <p>Upon trial of rape by fraud there was no error in permitting the State to show the flight, or attempts at-flight, by the defendant; although details of such attempted escape from jail might have been omitted.</p> <p>10. —Same—Evidence—Letters—Declarations by Defendant.</p> <p>Upon trial of rape by fraud there was no error in permitting the State to introduce in evidence a letter written by the defendant while he was living with prosecutrix as husband and wife, substantially admitting his marriage with prosecutrix.</p> <p>11. —Same—Evidence—Declarations of Third Party — Irrelevant Matter.</p> <p>Upon trial of rape by fraud, where the State had shown that the defendant, at the time of his sham marriage with prosecutrix, was married and not a single man as he had held himself out to be, it was reversible error to permit the State to show over objection of defendant that he had two young children by his legal wife and that the witness had taken care of them and defendant’s wife and that defendant did not come to see or visit them.</p> <p>12. —Same—Evidence—Property.</p> <p>Upon trial of rape by fraud it was reversible error to permit the State to show that defendant had no property and had never acquired any as he had claimed to prosecutrix.</p> <p>13. —Same—Evidence—Hearsay—Declarations by Prosecutrix.</p> <p>Upon trial of rape by fraud it was reversible error to show that subsequent to defendant’s arrest the prosecutrix, in the absence of defendant, had stated that she was married to defendant and how she was married.</p> <p>14. —Same—Evidence—Letters—Subsequent Declarations of Prosecutrix after Defendant’s Arrest.</p> <p>Upon trial of rape by fraud it was reversible error to permit the State to show by a letter written by prosecutrix after defendant’s arrest, and addressed to a third party that she believed she was married to defendant at the time of the alleged rape.</p> <p>15. —Same—Evidence—Acts of Third Parties.</p> <p>Upon trial of rape by fraud it was improper to permit the State to show by the testimony of the father of defendant’s wife that he had redeemed the household goods of the defendant which were pledged for groceries and house rent while defendant was in jail,</p> <p>[Rehearing denied November 30, 1910. — Reporter.]</p>

<p>1. — Murder—Charge of Court — Threats—Requested Charge.</p> <p>Where, upon trial of murder, the evidence raised the issue of self-defense, and threats by the deceased, and the court submitted both issues in a proper charge, there was no error in refusing defendant’s requested charge on the issue of threats which trenched closely on being on the weight of the evidence and was somewhat argumentative.</p> <p>2. —Same—Evidence—Bill of Exceptions — Practice on Appeal.</p> <p>Upon trial of murder, where defendant’s counsel on cross-examination of the widow of deceased brought out the fact that she did not hear her husband curse the defendant and tell him he would choke him, etc., some time before the homicide, and State’s counsel asked the witness whether her husband ever cursed to which the witness replied she had never heard him swear; to which question of State’s counsel defendant objected, but it did not appear by defendant’s bill of exceptions that this testimony ever went to the jury, there was no error.</p> <p>3. —Same—Argument of Counsel — Time of Argument — Discretion of Court.</p> <p>Where, upon trial of murder, the court after consultation with counsel on both sides limited the argument of counsel to three hours on each side, and there was no abuse of discretion shown, there was no error.</p> <p>4. —Same—Evidence—Threats.</p> <p>Where, upon trial of murder, there was much testimony showing the ill-feeling between the parties, and the issue was among others who brought on the difficulty, the court should have admitted testimony that the deceased, some time before the homicide, had stated that he was getting tired of the rough conduct of defendant and was getting badly worried about it.</p> <p>5. —Same—Evidence—Declarations of the Defendant.</p> <p>Upon trial of murder there was no error in admitting testimony that the defendant some three months before the homicide had declared that the deceased was “an old son-of-a-biteh.”</p> <p>6. —Same—Evidence—Acts of Defendant.</p> <p>Upon trial of murder there was no error in admitting testimony that defendant bought a knife used by him in the difficulty, about a week before the homicide.</p> <p>7. —Same—Evidence—Undisclosed Motive of Deceased — Want of Knowledge of Defendant.</p> <p>Upon trial of murder it was reversible error to permit the State to introduce testimony that on the evening of the homicide, about half an hour or less before the killing, deceased left his home with his two little boys and went down the road to hunt the cows; there being no testimony that the defendant had notice of the deceased’s innocent intentions, and defendant claimed a conspiracy between deceased and his son to attack defendant, and the court should upon request of defendant have withdrawn this testimony from the consideration of the jury. Following Gant v. State, 55 Texas Grim. Rep., 284, and other cases.</p> <p>8. —Same—Evidence—Undisclosed Motive of Witness.</p> <p>Upon trial of murder it was reversible error to permit the daughter of the deceased to testify that as defendant approached the house of the deceased on the evening of the homicide her brother came out of the yard with a gun in his hand to shoot an owl, notice of the witness’ intention to hunt an owl not having been brought home to the defendant; the theory of defense being that the said brother of State’s witness was acting together with his father in an attack upon the defendant.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. S. W. Dean. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The testimony for the State showed that the prosecutor and defendant got into an altercation, in the course of which defendant struck at prosecutor with a stick, and then fired at him with a pistol while prosecutor was running away from defendant, but did not hit him either time.

<p>The opinion states the case.</p>

<p>1. —Murder—Evidence—Collateral Declarations — Impeachment.</p> <p>Upon trial of murder it was reversible error to admit in evidence over the defendant’s objections, the declarations of the witness to a third party with reference to what the witness’ opinion was as to what deceased would do to defendant for marrying his daughter; and then permit the State to impeach the witness’ denial of such declarations, as this was a collateral matter and could shed no light on, the transaction, following Drake v. State, 29 Texas Grim. App., 265, and other eases.</p> <p>2. —Same—Evidence—Declarations of Deceased.</p> <p>On trial of murder the court erred in not permitting the defendant to show the feeling and animosity that deceased had towards the defendant, by not admitting in evidence deceased’s declaration with reference to the defendant for marrying daughter of deceased.</p> <p>3. —Same—Evidence—Acts of Deceased.</p> <p>On trial of murder the court erred in not permitting the defendant to show the conduct of deceased towards the defendant, by not admitting in evidence the declaration of the deceased to the effect that he would go back there to where defendant lived and that they would hear from him in about four days.</p> <p>4. —Same—Evidence—Acts of Third Parties.'</p> <p>Where, upon trial of murder, it developed that the deceased had left his wife, there was no error in the court’s ruling in not allowing defendant to show that the reason of this separation was because the deceased had been guilty of incest with his daughter.</p> <p>5. —Same—Charge of Court — Manslaughter.</p> <p>Where the testimony of the State made out a case 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,</p> <p>6. — Same—Self-Defense—Manslaughter.</p> <p>Simply because self-defense is in a case, it does not necessarily follow that the court must charge on manslaughter. Following Jirou v. State, 53 Texas Grim. Rep., 18.</p>

<p>1. — Burglary—Charge of Court — Force.</p> <p>Where, upon trial of burglary, the court in defining entry instructed the jury in an abstract way that by that term was meant every kind of entry except that made by the free consent of the occupant, but in applying the law to the facts of the case instructed the jury that the entry had to be made with force in order to constitute burglary, there was no error.</p> <p>3. — Same—Daytime and Nighttime Burglary — Breaking—Force.</p> <p>In burglary in the daytime there must be an actual breaking, but the burglary at night does not require an actual breaking but an entry made by force; thus opening a door whether latched or not is such force as would constitute burglary in the night-time.</p> <p>3. —Same—Explanation—Property Recently Stolen.</p> <p>Where, upon trial of burglary, it developed that at the time defendant made his statement to the witness, with reference to the alleged stolen property, he was not suspected of the theft nor was his title or possession questioned, it was not necessary for the court to charge on explanation of possession of property recently stolen; besides defendant’s own witness disproved his declarations.</p> <p>4. —Same—Charge of Court — Explanation.</p> <p>Where, upon trial of burglary, there was no evidence that the defendant was given the alleged stolen property by any person to sell for him, there was no error in the court’s failure to charge thereon.</p>

<p>The opinion states the case.</p>

<p>Murder — Statement of Facts — Bills of Exception.</p> <p>Where, upon appeal from a conviction of murder in the second degree, it appeared from the record that the statement of facts and bills of exception had been filed after the time for filing same had expired, the same could not be considered.</p>

<p>The opinion states the case.</p>

<p>Murder — Charge of Court — Adequate Cause — Threats.</p> <p>Where, upon trial of murder, the evidence showed threats by deceased, and that when defendant upbraided the deceased for intimate conduct with defendant’s wife, the deceased boasted of it, when defendant shot and killed him. This was manslaughter; and where the court in his charge submitted the issue of adequate cause, and directed the jury that they could take into consideration all the facts and circumstances in evidence, it was not necessary that the subject of threats as one of these circumstances should have been singled out in the charge; the conviction being for manslaughter.</p>

<p>Aggravated Assault — Officer—Premeditated Design — Great Bodily Injury.</p> <p>Where, upon trial of aggravated assault, the information alleged that the injured party was an officer in the discharge of his duties, and the evidence did not support this allegation, but showed that the circumstances of aggravation consisted in premeditated design and an assault by-means used calculated to inflict great bodily injury, the conviction could not be sustained.</p>

<p>From Callahan County.</p> <p>Original habeas corpus proceeding asking release from punishment for contempt of court, for failing to respond tó a subpoena duces tecum to produce before the grand jury all telegraphic messages sent by the telegraph company, etc.</p> <p>The opinion states the case.</p>

<p>1. —Murder—Charge of Court — Alibi.</p> <p>Where, upon trial of murder, the evidence barely suggested the issue of alibi and the court not only charged fully in regard to the law of circumstantial evidence, but submitted requested charges thereon, there was no reversible error.</p> <p>2. —Same—Charge of Court — Circumstantial Evidence — Requested Charges— Weight of Evidence.</p> <p>Where, upon trial" of murder, the court fully instructed upon circumstantial evidence, submitting special requested charges thereon, there was no error in refusing special charges which were on the weight of the evidence.</p> <p>3. —Same—Evidence—Circumstantial Evidence.</p> <p>Upon trial of murder there was no error in admitting testimony that the hair found on an axe which was supposed to have been used in the homicide was negro hair.</p> <p>4. —Same—Evidence—Blood Stains.</p> <p>Upon trial of murder where it was shown that the axe which was supposed to have been used in the homicide had blood stains upon it when it was found, there was no error in admitting this circumstantial evidence.</p> <p>5. —Same—Evidence—Bloody Axe.</p> <p>Upon trial of murder, where testimony was introduced with reference to blood stains found upon an axe which was supposed to have been used in the homicide, theré was no error in admitting testimony showing that an attempt had been made to wipe the blood from the axe.</p> <p>6. —Same—Jury and Jury Law — Race Discrimination.</p> <p>Where upon trial of murder the defendant objected to certain jurors on account of race prejudice, but did not reserve his bill of exceptions as to these jurors but applied this point to another juror against whom he had not protested on this ground, and the record showed on appeal that no objectionable juror was forced upon him, there was no error.</p> <p>7. —Same—Evidence—Remarks by Judge.</p> <p>Where, upon appeal from a conviction of murder, it appeared from the record that the statement by the judge to which objection was made in the trial court was not a comment on the weight of the evidence with reference to negro hair found on the axe supposed to have been used in the homicide, there was no error.</p> <p>8. —Same—Evidence—Money Found on Defendant.</p> <p>Where, upon trial of murder, there was evidence of money found on the defendant which belonged to the deceased and was sufficiently identified and connected up that it had belonged to deceased, there was no error.</p> <p>9. —Same—Evidence—Tracks.</p> <p>Upon trial of murder there was no error in admitting testimony of tracks found on the ground near the homicide which corresponded with the size of the tracks made by the defendant.</p> <p>10. —Same—Jury and Jury Law — Special Venire.</p> <p>Where, upon trial of murder, the defendant moved to quash the special venire on account of the service and because the special veniremen were not present, and the record on appeal showed that the absent veniremen were excused by permission of counsel and no attachments were requested to bring in the absent veniremen, there was no error.</p> <p>11. —Same—Evidence—Clothing of Defendant.</p> <p>Upon trial of murder there was no error in the introduction in evidence of the overalls worn by the defendant at the time of the homicide and which had blood stains upon them, etc.</p> <p>12. —Same—Jury and Jury Law — Special Venire — Talesmen.</p> <p>On trial of murder after the special venire had been exhausted, where the defendant moved to postpone the case and to select another venire, there was no error in the court’s action in instructing the sheriff to summon talesmen; nothing being shown in bills of exception that there was any prejudice on the part of the officer in making his summons. Following Mays "v. State, 50 Texas Grim. Rep., 165, and other cases.</p> <p>13. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder, the evidence sustained a conviction of murder in the first degree, the same will not be disturbed on appeal.</p> <p>[Rehearing denied December 7, 1910. — Reporter.]</p>

<p>1. —Burglary—Private Residence — Continuance—Want of Diligence.</p> <p>Where, upon trial of burglary, defendant’s application did not show proper diligence, and showed that the absent evidence was merely cumulative, and there appeared no supporting affidavit in tlie motion for new trial, there was no reversible error.</p> <p>2. —Same—Bills of Exception — Practice on Appeal.</p> <p>Where the bills of exception appearing in the statement of facts were not sufficiently definite they will not be reviewed on appeal.</p> <p>3. —Same—Variance—Owner of Property.</p> <p>Upon trial of burglary of a private residence with intent to steal from the residence of a certain person alleged in the indictment, where the evidence showed that the property taken was that of the daughter of said person, the same was not a variance between the allegation and the proof. Following Kubacalc v. State, 59 Texas Grim. Rep., 165.</p> <p>4. —Same—Newly Discovered Evidence.</p> <p>Where defendant’s motion for new trial vaguely and indefinitely set out the alleged newly discovered evidence, and a fuller statement thereof could have been obtained by defendant, there was no error in overruling his motion for new trial.</p> <p>[Rehearing denied December 7, 1910. — Reporter.]</p>

<p>1. —Aggravated Assault — Sufficiency of the Evidence.</p> <p>Where, upon trial of agggravated assault, the defendant was convicted of simple assault, and the jury was justified from the evidence in concluding that the defendant had fired the shot, the conviction was sustained and there was no error.</p> <p>2. —Same—Charge of Court — Deadly Weapon — Intent to Alarm.</p> <p>Where the defendant was convicted of simple assault he could not complain although he used a deadly weapon with intent to alarm the prosecutor, and that such facts might constitute aggravated assault.</p> <p>3. —Same—Charge of Court — Weight of Evidence.</p> <p>Where the court’s charge left the determination of the grade of the offense to the jury it was not on the weight of the evidence.</p> <p>4. —Same—Charge of Court — Oral and Written Charges.</p> <p>When neither party had requested written charges, and the court submitted the case orally; but the jury afterwards requested a charge in writing which request was joined in by the county attorney, and the court thereupon submitted his charge in writing, there was no error.</p> <p>5. —Same—Bill of Exceptions — Practice on Appeal.</p> <p>Where, upon appeal, objections and exceptions to the charge of the court and refusal of requested charges were not saved in the record by proper bills of exceptions, the same could not be considered.</p> <p>[Rehearing denied December 7, 1910. — Reporter.]</p>

<p>1. —Perjury—Accomplice—Other Transactions.</p> <p>In order to be an accomplice one must be connected in some way with the crime charged and under investigation; it is not sufficient that he may have been allied or connected with the defendant in some prior transaction even if such transaction were a violation of the law.</p> <p>2. —Same—Case Stated — Participants in Other Offense not Accomplices.</p> <p>Where the defendant was charged with perjury in deliberately giving false testimony in a gaming case, the participants in the game with the defendant would not be accomplices in defendant’s trial for perjury in the absence of a conspiracy to commit perjury. Following Conant v. State, 51 Texas Grim. Rep., 610, and other cases.</p> <p>[Rehearing denied December 7, 1910. — Reporter.]</p>

The State’s testimony showed that defendant entered the frosty joint, took a pistol from the shelf under the counter and walked up to deceased behind the counter within three or four steps and shot him floym; that deceased was doing nothing at the time, and was talking quietly to a third party; that defendant approached from the side and shot deceased; that nothing was said at the time.

<p>The opinion states the case.</p>

From Newton County. Original habeas corpus proceeding asking release from a judgment of eontemjit entered against relator for publishing defamatory matter concerning the official conduct of a district judge about a case pending in his court, and inflicting a fine of $100 and three days confinement in the county jail. The opinion states the case.

<p>The opinion states the case.</p>

From Johnson County. Original proceedings in habeas corpus asking release from punishment of contempt of court for violating a writ of- injunction.

<p>Bobbery — Indictment—Date oí Offense.</p> <p>Where, in a prosecution of robbery, the indictment set out an impossible date as to when the alleged offense was committed, the same was bad on motion to quash.</p>

<p>Robbery — Indictment—Date of Offense.</p> <p>Where, in a prosecution for robbery, the indictment alleged an impossible date on which the offense was committed, the same was bad on motion to quash.</p>

<p>Passing Forged Instrument — Indictment—Joint Stock Company — Corporation— Partnership.</p> <p>Where, in a prosecution for passing a forged instrument, the indictment followed precedent it was sufficient, and it was not necessary to allege that the bank was a partnership, joint stock company or corporation, and what business it was engaged in; nor was it necessary to allege that the forged name was a partnership, joint stock company or corporation.</p>

<p>1. —Murder—Evidence—Undisclosed Motive of Deceased.</p> <p>Where, upon trial of murder, the testimony as to the movements of deceased was simply explanatory of his presence at the place where he was killed, and was a mere matter of inducement, the rule'of undisclosed motive of the deceased does not apply.</p> <p>2. —Same—Charge of Court — Insanity—Judgment,</p> <p>Where, upon appeal from conviction of manslaughter, it appeared from the record that no judgment of lunacy had been introduced in evidence on the trial, the objection to the court’s failure to charge the jury that a judgment of lunacy is prima facie evidence of the recitals therein, could not avail defendant upon appeal, and there was no error.</p> <p>3. —Same—Misconduct of Jury.</p> <p>Where, upon appeal from a conviction of manslaughter, the appellant’s complaint of the misconduct of the jury was not verified in the record, the same could not be considered.</p>

<p>The opinion states the case.</p>

<p>Theft — Information—Description of Money — Sufficiency of the Evidence.</p> <p>Where, in a prosecution for theft, the information described the alleged stolen property as ten dollars in money which passed current as money of the United States of America of the value of ten dollars, the description was suificient, and evidence supporting such description was sufficient. Following Dalton v. State, 50 Texas Grim. Rep., 523, and other cases.</p>

<p>Murder — Charge of Court — Defense of Another.</p> <p>Where, upon trial of murder, the defendant was convicted of manslaughter, and there was evidence that he acted in the defense of his brother, a failure of the court to charge upon this phase of the case was reversible error; and this although the court had generally referred in his charge to the right of defendant to defend his brother, but had omitted to do so when applying the law to the facts.</p>

<p>The opinion states the case.</p>

<p>Theft of Cattle — Explanation—Possession—Insufficiency of the Evidence.</p> <p>Where, upon trial of theft of cattle, the defendant gave a reasonable explanation of his possession, and which was brought out by the State and which it did not prove to be false the conviction could not be sustained.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. W. H. Pope. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>1. —Murder—Special Venire — Motion to Quash — Capital Offense.</p> <p>Where upon trial of murder, the defendant filed a motion to quash the special venire on the ground that it did not state the nature of the offense against defendant, or that he was charged with a capital offense, and because the certificate of the clerk was defective as to the date of the writ; but it appeared that said date in the certificate was a clerical error, and that the writ was made returnable on the proper date, and that the jurors appeared in response thereto, there was no error in overruling the motion.</p> <p>2. —Same—Statutes Construed — Liberal Construction.</p> <p>Where the writ of special venire discloses the style, number of the ease, and the court in which the same was pending, and gave the day and date to which the same was returnable, it was not necessary that it should state that the case was a capital case or the nature of. the crime charged. The statutes relating to this writ are for the most part directory and should be liberally construed. Following Roberts v. State, 30 Texas Grim. App., 291.</p> <p>3. —Same—Evidence—Motive—Other Transactions,</p> <p>Upon trial of murder there was no error in permitting the State to show that deceased had been a principal State’s witness against defendant’s brother in a felony case, and that upon the trial of said case the jury returned into court and asked that the testimony of the deceased should be re-read to them by the court’s stenographer, which request was granted, and that thereafter the jury “found defendant’s brother guilty; it appearing that the defendant knew the relations of the deceased to said case at the time of the said trial. Said testimony was admissible to show motive.</p> <p>4. —Same—Charge of Court — Provoking Difficulty — Converse Proposition.</p> <p>Where upon trial of murder, the court did not charge on the issue of provoking the 'difficulty or in any way limit defendant’s right of self-defense, there was no error in refusing defendant’s special requested instruction, submitting the converse of the proposition of provoking the difficulty.</p> <p>5. —Same—Charge of Court — Limiting Testimony — Other Offenses.</p> <p>Upon trial of murder, where the State introduced testimony that complaint had been made by deceased against defendant some time before the homicide charging him with theft from the deceased, there was no error in the court’s failure to limit this evidence to the purposes for which it was introduced, that is to show motive, etc., as the same could not have been used by the jury for any other purpose.</p> <p>6. —Same—Evidence—Declarations of Defendant — Impeachment.</p> <p>Upon trial of murder there was no error in admitting in evidence testimony that on the day of the homicide, and a short time thereafter, defendant made the statement that he shot and killed deceased and that at the time he shot him deceased was putting his hand in his shirt-bosom, and the court was not required to limit this evidence in his charge to the purposes of impeachment because defendant as a witness denied this statement.</p> <p>7. —Same—Evidence—Declarations by Defendant — Threats—Impeachment.</p> <p>Upon trial of murder there was no error in permitting the State to prove that the defendant had made the statement that deceased had been interfering with him and his teams, etc., and that he carried his gun for deceased on the previous day and he did not come, etc.; that he would have killed him if he had, and that the next time he bothered him in his work he would kill him, and there was no error in the court’s failure to limit this testimony to the purpose of impeachment, because defendant denied such statement on the stand.</p> <p>8. —Same—Evidence—Threat—Declarations by Defendant — Impeachment.</p> <p>Upon trial of murder, there was no error in permitting the State to show that the defendant declared some time before the homicide if deceased ever charged him with burning his smokehouse, he, defendant, would kill him; and there was no error in the court’s failure to limit this evidence to purposes tpf impeachment because the defendant denied said statement.</p> <p>9. —Same—Rule Stated — Motive—Limiting Testimony.</p> <p>Where the State offers testimony against the defendant consisting of charges against defendant by deceased alleging crimes, and which evidence is offered for the purpose of showing motive and ill-will by the defendant against the deceased in the trial of defendant for murder as part of the State’s affirmative and original proof of the guilt of the defendant, no limiting charge by the court is either required or proper to be given.</p> <p>10. —Same—Evidence—Undisclosed Motive of Deceased — Practice.</p> <p>Where upon appeal from a conviction of murder, it appeared from the record that the defendant on his trial did not object to the testimony of the widow of the deceased to the effect that the deceased was going to his farm, to fix a water gap on the morning of the homicide, on the ground that this contained an undisclosed motive of the deceased he could not raise the question for the first time in his motion for rehearing on appeal.</p>

<p>1. —Assault with Intent to Rape — Continuance—General Reputation — Illicit Act.</p> <p>Upon trial of assault with intent to rape there was no error in overruling defendant’s motion for continuance to show that the absent witness had been in company with the prosecutrix at different times prior to the date of the alleged offense, and that she had submitted to sexual intercourse with said witness, and that defendant had been so informed. Following Wilson v. State, 17 Texas Grim. App., 525.</p> <p>2. —Same—Rule Stated — General Reputation — Want of Chastity.</p> <p>The rule makes general reputation and illicit acts with the accused alone admissible as evidence of want of chastity; and acts of illicit intercourse with parties other than the accused are inadmissible. Following Pefferling v. State, 40 Texas, 487.</p> <p>3. —Same—Evidence—General Reputation — Chastity—Consent.</p> <p>Where upon trial of assault with intent to rape, the evidence showed, that at the time the alleged assault was made upon prosecutrix by defendant and others, there was nothing to indicate that the parties believed that they could secure her consent for sexual intercourse, there was no error in not admitting in evidence testimony as to the general reputation of the prosecutrix for virtue and chastity; besides such testimony could not have changed the result of the trial. Following Wilson v. State, 17 Texas Grim. App., 525.</p> <p>4. —Same—Charge of Court — Principals—Evidence—Conspiracy.</p> <p>Where, upon trial of assault with intent to rape, testimony was admitted with reference to a conversation had in the absence of defendant as to the whereabouts of defendant and his companions, and that they were at a place anticipated by prosecutrix and others with whom she had such conversation, there was no error in the court’s failure to charge that such declarations could not be received unless a conspiracy was shown; it developing that the defendant and his said companions were found at said place only a few minutes after this conversation occurred, and thereupon assaulted prosecutrix; and the conversation not relating to the offense.</p> <p>5. —Same—Evidence—Declarations of Third Party — Outcry.</p> <p>Where upon trial of assault with intent to rape, the court permitted the State to prove a conversation had between a third party and the prosecutrix, as they were leaving the scene of the alleged assault, in which the prosecutrix was told not to tell her father of the conduct of the defendant and his companions as it might result in her father’s death, there was no error; in view of the attempt of the defense to discredit prosecutrix’s testimony because she did not make an outcry immediately after the offense.</p> <p>6. —Same—Charge of Court — Principals—Conspiracy.</p> <p>Where upon trial of assault with intent to rape, the evidence showed that the defendant, with others, engaged in the assault upon prosecutrix and was a principal actor therein, there was no error in the court’s failure to charge the jury that if there was no agreement between the parties or a conspiracy entered into by them before the alleged assault, that the defendant was not a principal; and the court did not err in submitting the law of principals without charging on the law of conspirarcy.</p> <p>7. —Same—Sufficiency of the Evidence — Conspiracy—Charge of Court.</p> <p>Where, upon trial of assault with intent to rape, the defense relied upon was that the defendant had no purpose to assault the prosecutrix, but simply demanded an explanation of her as to a letter she had written about defendant and others, but the evidence showed that the defendant and others assaulted prosecutrix at midnight in a secluded place when she was returning with her escort from a social gathering, the verdict of guilty was fully warranted; and there was no error in the court’s failure to charge on conspiracy.</p> <p>8. — Same—Specific Intent to Rape — Abandonment.</p> <p>Where, upon trial of assault with intent to rape, the evidence showed that the defendant and others assaulted the prosecutrix for the purpose of having carnal intercouse with her at all hazards, the specific intent to rape is established, and it is no defense that subsequently thereto the defendant abandoned his design.</p> <p>[Rehearing denied December 21, 1910, — Reporter.]</p>

<p>1. — Assault to Rape — Continuance—Cumulative Testimony.</p> <p>Where it was shown, from the record on appeal from a conviction of assault to rape, that the alleged absent testimony set out in defendant’s application for continuance was merely cumulative o£ an uncontradicted fact there was no error in overruling defendant’s motion for new trial.</p> <p>2. —Same—Principals—Evidence—Charge of Court — Conspiracy.</p> <p>Where, upon trial of assault with intent to rape, the evidence showed that the defendant and his companions made a combined assault upon prosecutrix with intent to rape, and that they were all present and participating therein, they were all principals in the offense, and their prior acts and declarations became admissible against each one of the parties, and there was no error in the court’s failure to charge on conspiracy in submitting the law governing principals. Following Cox v. State, 8 Texas Crim. App., 254, and other cases.</p> <p>3. —Same—Evidence—General Reputation of Prosecutrix.</p> <p>Upon trial of assault with intent to rape, the defendant introduced a witness who testified to the bad general reputation of prosecutrix for truth and upon cross-examination testified that she had heard the mother and sister of a codefendant speak of prosecutrix’s veracity, there was no reversible error in not perrtHtting defendant’s counsel to re-examine witness to show whether she had heard other people speak of her reputation; the State not having drawn out any fact that these were the only persons defendant’s witness had heard speak of prosecutrix’s general reputation.</p> <p>[Behearing denied December 21, 1910. — Beporter.]</p>

<p>1. —Theft of Cattle — Evidence—Bill of Exceptions — Arrest.</p> <p>Where, upon appeal from a conviction of theft of cattle, the bill of exceptions was qualified by the court with the statement that defendant was not under arrest at the time he made the declarations, the point that he was under arrest was without merit.</p> <p>2. —Same—Evidence—Confessions—Arrest.</p> <p>Where, upon trial of theft of cattle, the evidence showed that the officer simply requested the defendant to go to town with him, and that he let him go when they reached town, there was no error in admitting defendant’s declarations as to how he came by the alleged stolen property, as he was not under arrest.</p> <p>3. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of theft of cattle the evidence conclusively showed the guilt of the defendant the conviction was sustained.</p> <p>4. —Same—Charge of Court — Purchase—Explanation—Recent Possession.</p> <p>Where, upon trial of theft of cattle, the defendant claimed to have purchased the same and the court charged the jury that if there was any reasonable doubt that the defendant purchased the property to acquit him there was no error in the court’s failure to charge on explanation of property recently stolen. Following Wheeler v. State, 34 Texas Grim. Rep., 350, and other cases.</p>

<p>1. — Keeping Disorderly House — Sufficiency of the Evidence.</p> <p>Where, upon trial of keeping a disorderly house, the evidence showed conclusively that the defendant was engaged in the running of a house of prostitution, the conviction was sustained.</p> <p>3. — Same—Evidence—Character of House.</p> <p>Upon trial of keeping a disorderly house there was no error in admitting testimony that the defendant at the time the witness visited her house tried to get him to buy a bottle of beer at one dollar a bottle; as this showed the character of the house.</p> <p>3. —Same—Evidence—General Reputation.</p> <p>Where the information charged that the defendant was the keeper of a disorderly house upon a certain date, there was no error in admitting evidence as to the general reputation of said house for some time previous to and up to the date alleged in the indictment. .</p> <p>4. —Same—Evidence—Charge—Want of Denial — Silence.</p> <p>Upon trial of keeping a disorderly house there was no error in admitting testimony that the defendant was charged with keeping a disorderly house and made no reply thereto.</p> <p>[Rehearing denied December 21, 1910. — Reporter.]</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

The State’s testimony was, after proving the several orders of the Commissioners’ Court with reference to said election, etc., that the alleged purchaser bought a bottle of whisky from the defendant about the 6th of March, 1910, and paid $1.50 therefor; and that he had purchased intoxicating liquors from the defendant five or six times. The defendant denied such sale of intoxicating liquors to prosecutor.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Murder—Bill of Exceptions — Postponement.</p> <p>Where, upon appeal from a conviction of murder, the bill of exceptions did not disclose what the defendant desired to prove by the absent witness, the refusal to postpone the trial upon such grounds could not be considered.</p> <p>2. —Same—Evidence—Practice on Appeal — Bill of Exceptions.</p> <p>Where, upon appeal from a conviction of murder, it appeared from the bill of exceptions that the alleged rejected testimony was in fact admitted, defendant’s contention that it was not admitted could not be considered.</p> <p>3. —Same—Hewly Discovered Evidence — Motion for Hew Trial — Res Gestae Statement.</p> <p>Where the motion for new trial did not disclose that defendant’s declaration, which he claimed to be newly discovered evidence, was made within such close connection with the killing of his wife as would make it a res gestae statement, there was no error in overruling the motion.</p> <p>4. —Same—Pair and Impartial Trial.</p> <p>Upon appeal from a conviction of murder the judgment will not be reversed on appellant’s complaint that he did not have a fair and impartial trial because the testimony of the State’s witness is contradictory and inconsistent.</p> <p>[Ho motion for rehearing filed December 22, 1910. — Keporter.]</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Tried below before the Hon. W. J. Oxford. Appeal from a conviction of murder in the second degree; penalty, thirty-seven years and six months imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>Perjury — Indictment—Statement Must be Material.</p> <p>Where, upon trial of perjury, the indictment failed to show that the testimony upon which perjury was based was material, and the testimony set out in the indictment did not show on its face that it was material, nor was it alleged how it was material; the indictment was bad on motion to quash. Following Crow v. State 49 Texas Grim. Rep., 103, and other cases.</p>

<p>The opinion states the case.</p>