61 Tex. Crim.

Volume 61 — Texas Criminal Reports

157 opinions

61 Tex. Crim. 1Kirby v. State (1911)
Carrying Pistol—Conflict of Testimony—Question of Fact. Where, upon trial of unlawfully carrying a pistol, a jury was waived and the case tried before the judge, the latter was the judge of the credibility of the witnesses and the weight to be given the testimony,; and a conviction will not be set aside because the testimony was conflicting, and the defendant presented a defense to the charge of unlawfully carrying a pistol if the judge believed it.
61 Tex. Crim. 2Perry v. State (1911)
1. —Assault to Murder—Age of Defendant—Reformatory—Statutes Construed— Verdict. Where, upon trial of assault with intent to murder, the defendant was convicted of that offense and his punishment fixed at seven years imprisonment in the penitentiary, Article 1145, Code Criminal Procedure, providing that where the punishment is for a period less than five years and the issue of defendant’s nonage is raised that the verdict must find his age, was not applicable, as defendant could not be imprisoned in the reformatory under the punishment assessed. Distinguishing Watson v. State, 49 Texas Grim. Rep., 371; Byrd v. State, 55 Texas Grim. Rep., 390. 2. —Same—Continuance—Age of Defendant. Where defendant was convicted of assault with intent to murder and awarded a punishment of seven years in the penitentiary, there was no error in overruling the motion for new trial for not granting a continuance to prove that the defendant was under the age of 16 years; there being no suggestion of insanity or lack of intelligence of defendant. 3. —Same—Charge of Court—Intent to Murder. Where, upon trial of assault with intent to murder, the court charged the jury that if they believed from the evidence that the defendant believed he was in danger of death or serious bodily injury and that he cut deceased to get loose from him with no intent to kill, a complaint on appeal that the court did not submit this issue was untenable. 4. —Same—Charge of Court—Reasonable Doubt. Where, upon trial of assault with intent to murder the court in his charge, upon the question of intent to kill, submitted the law of reasonable doubt, and also submitted the same in the general charge on the question of defendant’s guilt, there was no error. .
61 Tex. Crim. 5Anderson v. State (1911)
Carrying Pistol—Conflict of Testimony—Question @f Pact. Where upon trial of unlawfully carrying a pistol, the evidence sustained the conviction the case will not be reversed on the ground of a conflict of testimony; although the evidence offered by the defendant if believed by the jury would entitle him to an acquittal,
61 Tex. Crim. 7Simmons v. State (1911)
The opinion states the case.
61 Tex. Crim. 9Aycock v. State (1911)
The opinion states the case.
61 Tex. Crim. 12Ross v. State (1911)
1. —Assault to Murder—Deadly Weapon—Means Used. Where, upon trial of assault with intent to murder, the evidence showed .that no serious injury was inflicted and that the defendant used a small knife, the court should have submitted Article 717, Penal Code, with reference to the means used and the intent of the defendant, and that if the knife was not a deadly weapon in. the manner in which it was used .the jury should acquit defendant of assault to murder. 2. —Same—Argument of Counsel—Attorneys Must Confine Themselves to the Record. Where, upon trial of assault with intent to murder, complaint was made as to the argument of the State’s counsel and the court instructed the jury not to consider same, there was no reversible error; but State’s counsel are admonished to confine themselves to the facts in their argument to the jury. 3. —Same—Evidence—Practice on Appea,. Objections to the admissibility of the testimony should state the grounds of such objections, which should be incorporated in the bill of exceptions.
61 Tex. Crim. 14Mingo v. State (1911)
The State’s testimony showed that someone had been throwing rocks at night against the house in which defendant and others lived, and that he and his companion had been trying to overtake the guilty parties but failed; that this occurred at different times shortly before the homicide; that a night or two before the killing, and on the afternoon of the day of the killing, the defendant and his companion had been overheard to say that they would waylay the party who threw the…
61 Tex. Crim. 16Gilder v. State (1910)
The opinion states the case.
61 Tex. Crim. 19Duke v. State (1909)
1. —Murder—Actual and Apparent Danger—Charge of Court—Threats. Where, upon trial of murder, the evidence showed communicated threats by deceased, followed by acts manifesting an intention to execute the same at the time of the homicide, the ease was one of apparent danger and the court should not have charged upon actual danger. 2. —Same—Statutes Construed—Apparent Attack—Torce. The logical effect of Article 713, Penal Code, is to justify homicide upon the ground of apparent danger if from such apparent danger the defendant has a reasonable apprehension of death or serious bodily injury created by such threats coupled with the act mentioned in the statute; and he may continue shooting his adversary until he kills him, if to him as viewed from his standpoint it reasonably appears necessary to save his own life or to prevent serious bodily injury; and it is reversible error to charge the jury in a case where the evidence raises the issue of apparent danger that defendant must repel force with force, which implies an actual attack. 3. —Same—Charge of Court—Abandonment of Difficulty. Where, upon trial of murder, the evidence showed that the defendant either shot the deceased as he was running from him or while deceased was trying to get his gun to shoot defendant, the issue of abandonment of the difficulty was not raised and it was error to instruct the jury thereon. 4. —Same—Going Armed—Demanding Explanation—Peaceable Manner. Where, upon trial of murder, the evidence showed that from the threats of the deceased the defendant had the right to arm himself and to demand of deceased an explanation, it was error to instruct the jury that the defendant must approach deceased in a peaceable manner for the purpose of arriving at a friendly understanding of their differences. Following King v. State, 51 Texas Grim. Rep., 208, and other eases.- 5. —Same—Memorandum. Where the matter is a public memorandum, counsel for defendant should have access to it. 6. —Same—Evidence—Threats. Where, upon trial of murder, the threat, if any, by the defendant was very indirect and did not name the deceased, such testimony was not admissible.
61 Tex. Crim. 26Coleburn v. State (1911)
The opinion states the case.
61 Tex. Crim. 29Martinez v. State (1911)
1. —Theft of Hog—Circumstantial Evidence—Charge of Court. Where, upon trial of theft of a hog, there was positive proof by an eyewitness that defendant took the hog, and the testimony of the accomplice was corroborated by the finding of the fruits of the crime, it was not necessary to charge on circumstantial evidence. 2. —Same—Charge of Court—Accomplice Testimony. Where, upon trial of theft of a hog, the charge of the court on accomplice testimony followed approved precedent, there was no error. 3. —Same—Sufficiency of the Evidence. Where, upon trial of theft of a hog, the evidence sustained the conviction, the same will not be disturbed.
61 Tex. Crim. 30Britton v. State (1911)
The opinion states the case.
61 Tex. Crim. 31Alexander v. State (1910)
The opinion states the case.
61 Tex. Crim. 34Sargent v. State (1910)
1. —Adultery—Statement of Pacts—Practice on Appeal.' Where the case was affirmed because the statement of facts and bills of exception had not been filed within thirty days from the adjournment of the court below, but it was shown by affidavit on motion for rehearing that it was no fault of appellant that the statement of facts and bills of exception had not been approved by the judge and filed by the clerk, but that his counsel had used proper diligence to obtain a statement of facts, etc., the case must be reversed. 2. —Same—Husband and Wife—Evidence. It is the settled rule in this State, by an unbroken line of decisions, that in adultery the husband or wife of the party accused is not a competent witness against the other.
61 Tex. Crim. 37Barnes v. State (1910)
1. —Murder—Evidence—Declaration by Defendant. Where, upon trial of murder, the State’s witness was stating the language as best he understood it as used by the defendant as he approached the deceased and before he fired the first shot, there was no error in admitting this testimony. 2. —Same—Evidence—Opinion of Witness. Upon trial of murder, the witness could have stated the physical facts as to where the ball struck the door, but it was not proper for him to state his opinion as to position of the door from the bullet marks therein, nor the position of defendant’s brother at the time. 3. —Same—Evidence—Rebuttal—Argument oí Counsel. Where, upon trial of murder, the State had shown by its witness that he had purchased a horse from one who was a State’s witness and who in company with the defendant’s brother went in a wagon to the station, where said State’s witness took the train and left the State, leaving the inference that defendant had furnished the money for the purchase of said horse and induced said State’s witness to leave the State for the purpose of not testifying in the case, it was reversible error not to permit defendant to show that the money for the purchase of said horse did not come from defendant or his brother but was given to witness by another party, and that the defendant and his brother were not instrumental in having said State’s witness leave the State; especially where the State’s counsel commented on this phase of the case. 4. —Same—Charge of Court—Manslaughter—Adequate Cause. Where, upon trial of murder, the evidence showed that previous to the homicide there was an altercation between defendant and deceased, and that the latter had threatened defendant’s life, all of which occurred a few hours before the homicide, a charge of the court which limited the adequate cause to the actions and words of the deceased at the time of the shooting and did not inform the jury that they should take into consideration all the facts and circumstances surrounding the case, was reversible error. 5. —Same—Charge of Court—Standpoint of Defendant—Self-Defense. Where, upon trial of murder, the court’s charge on self-defense properly submitted that the danger must be viewed from the standpoint alone of defendant, etc., there was no error. 6. —Same—Charge of Court—Words and Phrases. Where, upon trial of murder, the court in his charge on self-defence properly read to the jury the words “expectation or fear,” and qualified appellant’s bill of exceptions, that the phrase “expectation of fear” was a change in the charge not made by the court or with his knowledge and consent, there was no reversible error. 7. —Same—Charge of Court—Self-Defense—Apparent Danger—Threats—Serious Bodily Injury. Where, upon trial of murder, the evidence showed that the defendant had been threatened by deceased and acted on the appearance of danger, and the court’s charge confined the jury to a consideration of actual danger, and did not apply the danger to serious bodily injury as well as to life there was reversible error. 8. —Same—Separation of Jury. Where, upon trial of murder, it was not shown on defendant’s complaint that the jury separated, that there was anything said to or by the juror who left the jury for a short time to catch his horse, etc., there was no reversible error. 9.—Same—Swearing Witnesses—Practice. Where the motion for new trial, after conviction of murder, complained that two of the State’s witnesses were not sworn, and that this fact was not discovered until after the trial, the complaint came too late. Following Goldsmith v. State, 32 Texas Grim. Rep., 112.
61 Tex. Crim. 48McConico v. State (1911)
The opinion states the case.
61 Tex. Crim. 51Burnam v. State (1911)
The essential facts immediately concerning and surrounding the killing show, substantially, on the part of the State, that the homicide took place at night in the village school house where the people of the neighborhood had assembled for religious worship; that the deceased had seated himself with others on one of the front benches in the school house, facing the pulpit or rostrum; that defendant’s wife was also among those present; that shortly thereafter the defendant and…
61 Tex. Crim. 55Nelson v. State (1911)
The opinion states the case.
61 Tex. Crim. 56Foreman v. State (1911)
The opinion states the case.
61 Tex. Crim. 60Spencer v. State (1911)
The State’s testimony substantially showed that the alleged burglary occurred on Saturday night, April 17, 1909, in the city of Terrell; that the doors of the store were forced and the glass in them broken out, and that some one had entered the store and disarranged things therein; that a lot of goods were taken from the store which were afterwards recovered in a trunk and identified; that defendant and his co-defendant were seen together on said Saturday evening leaving…
61 Tex. Crim. 63Spain v. State (1911)
The State’s testimony showed that defendant was a banana peddler; that on the day of the alleged sale of whisky the witnesses got in his wagon, and that defendant got a bottle of whisky from under the seat and sold it to them for $1.25, and that one of the witnesses got drunk from' drinking it and was arrested.
61 Tex. Crim. 64Barlow v. State (1911)
The opinion states the case.
61 Tex. Crim. 66Ex Parte Tyer (1910)
The opinion states the case.
61 Tex. Crim. 67Ex Parte Overcash (1911)
Habeas Corpus—Bail—Jurisdiction. It is necessary under the statute that a trial for bail, after indictment found, be heard in the county where the homicide occurred and where the indictment was found; and where a district judge had granted a writ of habeas corpus in a case in which there was a change of venue the writ is returnable to the county in which the indictment was found.
61 Tex. Crim. 68Ex Parte Roper (1910)
From Johnson County. Original habeas corpus proceeding asking release from custody under a judgment of contempt by the District Court for violating a writ of injunction restraining the unlawful sale of intoxicating liquors in local option territory. The opinion states the case.
61 Tex. Crim. 90Stewart v. State (1910)
Assault to Rape—Charge of Court—Intent of Defendant—Abandonment. Where, upon trial of assault with intent to rape, the evidence showed that the defendant desisted after he had made an assault with others upon prosecutrix by force without her consent, there was no error in refusing a requested charge that if defendant had abandoned his former intent, to acquit.
61 Tex. Crim. 92Haywood v. State (1910)
The State’s testimony showed that defendant enticed prosecutrix and her little brother into defendant’s restaurant, closed the doors, and had sexual intercourse with prosecutrix in a closed room in the restaurant. The opinion states the case.
61 Tex. Crim. 97Turner v. State (1910)
1. —Assault to Murder—Charge of Court—Insanity—Practice on Appeal. Where, upon appeal from a conviction of an assault with intent to murder, the defendant objected to the court’s charge on insanity because the same required that insanity must be clearly proved, but did not interpose these objections in the trial court, the same could not be reviewed. 2. —Same—Evidence—Insanity—Opinion of Witness. Where, upon trial of assault with intent to murder, it did not appear from the record on appeal that any or all of the witnesses to whose testimony the appellant objected in the court below had given any opinion touching his insanity, but simply stated the result of their observations which was that there had been nothing unusual in his deportment and nothing to indicate mental unsoundness, there was no reversible error. Distinguishing Williams v. State, 37 Texas Grim. Rep., 348; and Betts v. State, 48 Texas Grim. Rep., 522. 3. —Same—Argument of Counsel—Requested -Charge—Opinion of Counsel. Where, upon trial of assault with intent to murder, the State’s counsel remarked that counsel for defendant, who had interposed a plea of insanity for their client, would no doubt deny such plea if their client was tried in the probate court on a complaint of insanity, whereupon defendant’s counsel desired to state that they had advised the relatives of defendant that if the plea was found true in the trial of this case defendant would be confined in the Asylum for the Insane, but requested no special charge to withdraw State’s counsel remarks, there was no reversible error. 4. —Same—Misconduct of Jury—Practice—Impeaching Verdict. Where the motion for new trial alleged that the jury convicted the defendant because they believed that if he were acquitted he would probably harm someone else, and offered proof to Support this motion, which the court overruled, there was no error. 5. —Same—Newly Discovered Evidence—Diligence. ' Where there was no showing that any diligence was used to secure the alleged newly discovered testimony or that it could not have been discovered by the exercise of ordinary diligence, there was no error in not granting a new trial thereon.
61 Tex. Crim. 104Johnson v. State (1910)
Appeal from the District Court of Archer. Tried below before the Honorable Jo A. P. Dickson, presiding, in exchange of the regular judge. Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary. The opinion states the case.
61 Tex. Crim. 111Hardeman v. State (1911)
1. —Murder—Charge of Court—Manslaughter—Threats. Antecedent threats will not reduce a homicide to manslaughter; and, where upon trial of murder, the evidence showed that the only thing that defendant claims deceased did at the time of the homicide was to refuse to come out of the house at defendant’s request, and when the deceased appeared in the door defendent shot and killed him, and that this occurred at night and that defendant attempted to conceal his identity, the issue of manslaughter was not raised and a conviction of murder in the first degree assessing the death penalty is sustained. 2. —Same—Plea of Guilty—Express Malice. Where, upon trial of murder, defendant entered a plea of guilty to an unlawful killing, hoping to reduce the grade of the offense to a less degree than that of the first degree and relied on some previous trouble between deceased and himself, but the evidence showed a killing upon express malice, the conviction of murder in the first degree is sustained., 3. —Same—Evidence—Collateral Matters. Where, upon trial of murder, the State had admitted that deceased and a certain woman were criminally intimate, there was no error in refusing to admit testimony showing this matter. 4. —Same—Evidence—Self-Serving Declarations—Threats. Self-serving declarations of the defendant are not admissible, and where, upon trial of murder, the court rejected testimony as to the statement made by the defendant to the witness a day or two before the killing as to the threats deceased had made against him, but the proof showed that the defendant shot and killed deceased in the door of his house at the dead hour of night, there was no error. .
61 Tex. Crim. 114Day v. State (1910)
The State’s testimony showed substantially that the shooting occurred in a restaurant kept by the State’s witness Guions; that defendant entered the restaurant and told deceased he had just been to the office of the .telephone operator and told her that she and deceased could- (using some obscene language); that deceased said to defendant that he had been throwing that up to him all evening, when defendant called him a liar; that thereupon deceased jumped from the counter…
61 Tex. Crim. 122Cornwell v. State (1910)
1. —Murder—Evidence—Hearsay—Self-Serving. Upon trial of murder there was no error in excluding testimony that when defendant was informed of the death of the deceased lie stated that he was sorry he was dead and that he did not intend to kill him. This was some ten hours after the homicide after defendant had gone home, and was hearsay and self-serving. 2. —Same—Charge of Court—Bill of Exceptions. Where, upon appeal from a conviction of manslaughter, the complaint to the court’s charge on provoking the difficulty was that it was not clear and had the effect and was calculated to mislead the jury, the same was too general to be considered. Following Holmes v. State, 55 Texas Grim. Rep., 331, and other cases. 3. —Same—Charge of Court—Aggravated Assault—Invited Error. Where, upon trial of murder, the defendant induced the court by requested charge, on a given state of facts which would have made him guilty of aggravated assault, to instruct the jury to acquit him, he was not in condition after a conviction of manslaughter on appeal to complain that the judgment should be reversed because the court gave at his instance a charge for an acquittal instead of an instruction to convict for aggravated assult. Davidson, Presiding Judge, dissenting. 4. —Same—Charge of Court—Practice on Appeal. Where, upon appeal from a conviction of manslaughter, the record clearly showed that appellant in no way complained of the charge in the lower court, to which ho objected on appeal, the matter could not be reviewed.
61 Tex. Crim. 129Ex Parte Looper (1910)
From Johnson County. Original habeas corpus proceeding asking for a release from commitment of contempt for a violation of the writ of injunction restraining relator from the unlawful sale of intoxicating liquors in local option territory. The opinion states the case.
61 Tex. Crim. 133Butler v. State (1911)
The opinion states the ease. See Mingo v. State, 61 Texas Crim. Rep., 14.
61 Tex. Crim. 140Sellers and Mansfield v. State (1910)
Tried below before the Hon, W, H. Pope. Appeal from a conviction of assault with intent to murder; penalty, seven years imprisonment in the penitentiary against each defendant. The opinion states the case.
61 Tex. Crim. 145Ragsdale and Arnwine v. State (1911)
1. —Burglary—Charge of Court—Words and Phrases. Upon trial of burglary of two juveniles, there was no error in the court’s charge, on the presumption of innocence, in using the phrase “as in all criminal cases.” 2. —Same—Dismissal—Discretion—Juvenile Court. Where, upon trial of burglary the district judge, after a preliminary hearing, found the evidence to establish that both defendants were under sixteen years of age, and thereupon refused to dismiss the case and try them as in the Juvenile Court, but tried them as adult defendants, there was no error, as the statute expressly provides that in the district judge’s discretion he can proceed to try any such cause as provided by law. 3. —Same—Juveniles—Practice—Trial of Delinquent Children. The law governing the trial of juveniles does not require that any difference shall be had in the trial on the juvenile docket and that of the regular docket in the District Court; and where upon trial of burglary it was not shown that any injury resulted to the defendants in this respect, there was no error. 4. —Same—Charge of Court—Definition of Theft. Where, upon trial of burglary, the court did not technically define theft in a separate paragraph of his charge, but required the jury to believe from the evidence beyond a reasonable doubt every element and fact which is necessary to make one guilty of theft, there was no reversible error. 5. —Same—Charge of Court—Form of Verdict—Oral Charge. Where, upon trial of burglary of two defendants, the court instructed the jury if they found the defendants or either of them guilty, to assess their punishment or that of either, at a certain number of years in the penitentiary, and that they could convict both or either and assess different punishments as to each, or acquit one or both of them in case of a reasonable doubt, and thereupon instructed them more fully orally as to the form of their verdict, and no complaint was made either to the correctness of the written or the oral charges upon this matter, there was no error. Besides, under Article 753, Code Criminal Procdure, the verdict could have been corrected under oral instructions. 6. —Same—Charge of Court—Place of Confinement. Under- Article 1145, Code Criminal Procedure, as amended by the Act of 1909, with reference to juvenile criminals, the jury is not required as under the former Act to find the age of the defendant or that he is under sixteen years of age, before he is committed to the State institution for the training of juveniles, or to fix the place of his imprisonment. This was left to the judge; and where the jury were correctly charged, in a trial for burglary, that if their verdict was for conviction and for. confinement for five years or less that the judgment and sentence of the court would be that the defendants be confined in the State institution for the training of juveniles, etc., there was no error. 7.—Same—Sufficiency of the Evidence—Delinquent Children. Where, upon trial of burglary of two juveniles, both under the age of sixteen years, the evidence showed that both of them had sufficient discretion to enable them to understand the nature and illegality of the act constituting the offense charged, and that they went into the alleged burglarized house for the purpose of committing the offene of theft, the conviction was sustained; the court having properly charged on this phase of the case. [Rehearing denied February 15, 1911.—Reporter.]
61 Tex. Crim. 152Ferguson v. State (1911)
1. —Theft of Horses—Change of Venue—Insufficiency of Evidence. Where the alleged prejudice was not of such nature and extent as to prejudice a fair trial and there was no evidence showing a combination, there was no error. 2. —Theft of Horses—Comparison of Handwriting—Arrest. Upon trial of theft of horses there was no error in permitting a witness to testify that he saw defendant sign the appearance bond after he had arrested him, and that this was the same handwriting as that on the bill of sale. Following Hunt v. State, 33 Texas Grim. Rep., 252. 3. —Same—Evidence—Bill of Exceptions—Practice on Appeal. Where the bill of exceptions did not recite as a fact that the defendant had objected to the introduction in evidence of the bill of sale because it had not been filed properly and defendant given notice thereof, the same could not be considered on appeal. 4. —Same—Evidence—Bill of Exceptions. Where the objections urged are not stated as facts, and are not verified by the bills as statements of facts, but only as grounds of objection, they can not be considered on appeal; besides, the testimony was admissible. 5. —Same—Practice in District Court. Upon trial of theft of horses there was no error, after the court had read the charge to the jury and before they retired to consider of their verdict, that the court permitted them to take the bill of sale in evidence, and also the appearance bond with them in their deliberations. Following Hurd v. State, 9 Texas Grim. App., 1. 6. —Same—Sufficiency of the Evidence. Where, upon trial of theft of horses, the evidence sustained the conviction, there was no error. [Behearing denied April 19, 1911.—Beporter.]
61 Tex. Crim. 157Dankworth v. State (1911)
The opinion states the case.
61 Tex. Crim. 161Clements v. State (1911)
1. —Murder—Continuance—Newly Discovered Evidence. Where, upon appeal from a conviction of murder, the cause was reversed and remanded for certain errors, it was not necessary to pass upon the question of the application for continuance and newly-discovered evidence set up in the motion for new trial. 2. —Same—Evidence—Declarations of Third Parties—Conspiracy—Withdrawal of Illegal Testimony. Upon trial for murder, where the State failed to show a conspiracy between defendant and others, it was reversible error to admit in evidence the declarations of third parties made in the absence of the defendant, and to permit this testimony to remain before the jury until the entire testimony was closed, although due exceptions had been made thereto; especially where the State’s counsel was permitted to refer to this testimony in his argument. Following Darnell v. State, 58 Texas Grim. Rep., 585, and.other cases. 3. —Same—Evidence—Declaration of Third Parties—Practice in District Court. Where, upon trial of murder, the State failed to show any conspiracy between defendant and others, it was reversible error to admit in evidence the declaration of defendant’s sister and another State’s witness, to the effect that the defendant had killed the deceased, upon hearing the shot fired, in the absence of the defendant, and they not seeing or being present at the time of the homicide, and to permit this testimony to remain before the jury until all the testimony was closed. 4. —Same—Evidence—Acts and Declarations of Third Parties. Upon trial of murder, where there was no evidence of a conspiracy, it was reversible error to permit a State’s witness to testify to the acts and declarations between third parties made a short time before the killing in the absence of the defendant and that the deceased was called out by some one unknown to the witness shortly before the killing; and to suffer this testimony to remain before the jury until the argument began, and then not even withdrawing all of it. 5. —Same—Evidence—Withdrawal of Illegal Testimony. Upon trial of murder, where the evidence showed no conspiracy, and the State was allowed to introduce the acts and declarations of third parties made in the absence of the defendant, it was reversible error to overrule the objections of defendant thereto at the close of State’s testimony, forcing the defense to introduce its testimony, and to permit the State’s counsel to assert in the presence of the jury that there was a conspiracy to kill the deceased. 6. —Same—Argument of Counsel—Want of Conspiracy. Where, upon trial of murder, the evidence showed that there was no conspiracy between defendant and others, it was error to permit State’s counsel, after most of the illegal testimony had been withdrawn by the court, to argue upon such testimony before the jury.
61 Tex. Crim. 170Lagrone v. State (1911)
The State’s testimony substantially showed that deceased, defendant and others were working on a public road under a road overseer on the day of the homicide; that deceased on the morning of the homicide claimed that he was sick and was excused by the overseer; that about that time defendant was heard by some of the State’s witnesses to curse deceased and threatening to kill him with an axe; that deceased, after being excused and in leaving his work, at a point where a…
61 Tex. Crim. 176Gross v. State (1911)
1. —Incest—Evidence—Other Acts of Intercourse. Upon trial of incest, testimony of other and subsequent acts of intercourse than the one upon which the prosecution relied are inadmissible, and testimony that defendant ordered his daughter to get in bed with him was inadmissible, and this although no actual intercourse was shown. Following Skidmore v. State, 57 Texas Grim. Rep., 497, and other cases. 2. —Same—Evidence—Contradicting Witness. Where, upon trial of incest, testimony got into the case with reference to a statement of the prosecutrix that her three uncles had been having intercourse with her, and prosecutrix denied this on the witness stand, the defendant should have been allowed to contradict her statement by other witnesses. 3. —Same—Impeaching Witness—Evidence. Where, upon trial of incest, the prosecutrix testified that she had never been out in public with any young man except when some one else was with her, the defendant should have been allowed to contradict and impeach the witness on this line of testimony. 4. —Same—Evidence—Impeaching Witness. Where, upon trial of incest, the prosecutrix denied a certain incident which occurred between her and the witness, and had also testified that she was not intimate with a certain party whom she afterwards married, the defendant should have been allowed to contradict her testimony 5. —Same—Evidence—Declaration of Third Parties. Upon trial of incest, testimony as to a conversation between the witness and the mother of prosecutrix, in the absence of the defendant, and not connected with the prosecution, was inadmissible. 6. —Same—Evidence—Letter—Husband and Wife—Attorney and Client—Privileged Communications. Upon trial of incest, it was reversible error to admit in evidence the contents of a letter which the defendant had written to his wife wherein he implored her to get his daughter and husband out of the way, as they could put him to death; and this although the letter came into possession of State’s witness by accident and without connivance of the wife, as the same was a privileged communication between husband and wife. See opinion for discussion of relations between husband and wife, and attorney and client. Following Cole v. State, 48 Texas Grim. Rep., 439, and other cases. 7. —Same—Recalling Jury—Additional Charges. Where the judgment was reversed upon other grounds, it is unnecessary to pass upon the question of recalling the jury and giving additional charges. [Ho motion for rehearing filed March 16, 1911.’—Reporter.]
61 Tex. Crim. 187Henry v. State (1911)
1. —local Option—Recognizance—Reinstatement. In an appeal from a misdemeanor, where the recognizance was insufficient and the appeal was dismissed, the same was reinstated upon the filing of a sufficient recognizance. 2. —Same—Election Contest—No law in Force. Where the local option election under which defendant was convicted was contested in a direct proceeding and finally decided to be void and invalid, of which the Court of Criminal Appeals was properly advised in the record, the cause will be reversed and dismissed for want of a local option law in force at the time of the prosecution.
61 Tex. Crim. 190King v. State (1911)
Assault to Murder—Aggravated Assault—Simple Assault—Former Conviction. Where, upon trial of assault to murder, defendant filed his plea of former conviction of simple assault, and the evidence showed on the part of the defendant a simple assault, but the court submitted only aggravated assault, there was error, and the question of simple assault should have been submitted to the jury. Following Pearce v. State, 37 Texas Crim. Rep., 643.
61 Tex. Crim. 191Olivus v. State (1911)
Assault to Rape—Statement of Facts—Certiorari—Practice on Appeal. Under the statute, where the court is in session more than eight weeks, the statement of facts must be filed within thirty days after the final judgment or sentence. If this has not been done, then the record must contain an order extending the time; and where, upon appeal from a conviction of assault with intent to rape, it appeared from the record that the appellant’s counsel did not use sufficient diligence in having made up the statement of facts, an application for writ of certiorari must be refused. Following George v. State, 25 Texas Grim. App., 229, and other eases.
61 Tex. Crim. 193Baker v. State (1911)Reversed and remanded
Weapons (§ 17*) — Unlawfully Caeisying— Instructions. It was error to refuse to instruct that accused did not unlawfully carry a weapon, if he took it during an encounter between others, and retained it only to prevent a shooting. [Ed. Note. — For other cases, see Weapons, Eee. Dig. § 17.*)
61 Tex. Crim. 193Bakep v. State (1911)
Carrying Pistol—Innocent Intent—Charge of Court. Where, upon trial of unlawfully carrying a pistol, there was evidence that the defendant took the pistol front parties who were in a personal encounter, and that he carried the same to his home to keep the parties from regaining possession of it, and afterwards returned it to the owner, with no purpose or intention of violating the law, the court should have submitted a requested charge covering this phase of the case. Following Schroeder v. State, 50 Texas Crim. Hep., Ill, 99 S. W. Rep., 1003, and other cases.
61 Tex. Crim. 195Gould v. State (1911)
The opinion states the case.
61 Tex. Crim. 197Little v. State (1911)
1. —Assault to Murder—Charge of Court—Defense of Another. Where, upon trial of assault with intent to murder, the evidence showed that the defendant acted in the defense of his brother when he struck deceased, it was reversible error not to submit this issue to the jury. 2. —Same—Remarks by Judge. Where the cause is reversed and remanded for other errors, a complaint to the remarks of the judge need not be considered. 3. —Same—Charge of Court—Means Used—Simple Assault. Where, upon trial of assault to murder, there was some evidence to justify a charge upon the use of some unknown instrument, there was no error; but there being also evidence that the defendant only struck the deceased with his fist, the court should have submitted the issue of simple assault. 4. —Same—Charge of Court—Injury to Life—Serious Bodily Injury. Where, upon trial of assault to murder, the defendant was convicted of aggravated assault, and there was no evidence showing an attack that threatened injury to defendant’s life or person, and the theory of-the defense was that defendant acted in the defense of his brother, the court should not have placed defendant’s right of self-defense on an attack by deceased involving fear of death or serious bodily, injury. 5. —Same—Charge of Court—Words and Phrases—Aged and Decrepit. Where, upon trial of assault with intent to murder, the court, in submitting the issue of aggravated assault, instructed the jury that if the" deceased was aged and decrepit that it would furnish the basis for a conviction of aggravated assault, and there was no evidence that the deceased was aged or decrepit within the meaning of the statute, the same was reversible error. Following Hall v. State, 16 Texas Grim, App., 6, and other cases.
61 Tex. Crim. 201Holland v. State (1911)
The opinion states the case.
61 Tex. Crim. 204Ex Parte Earl McFarlane (1911)
The opinion states .the case.
61 Tex. Crim. 205Bird v. State (1911)
The opinion states the case.
61 Tex. Crim. 206Switzer v. State (1911)Granted
Ceiminal Law (§ 1076*) — Appeal and Ebeok —Recognizance—Sufficiency. Where a recognizance on appeal from a judgment convicting defendant of violating the local option law did not recite that defendant was convicted of a misdemeanor, nor show the punishment assessed, it was insufficient to sustain the appeal. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ £711, 2712; Dec. Dig. § 1076.*]
61 Tex. Crim. 206Bacon v. State (1911)
1. —Theft—Sufficiency of the Evidence. Where, upon trial of theft, the evidence amply sustained the conviction the same will not be disturbed. 2. —Same—Continuance—Second Application. Where, upon appeal from a conviction of theft, the bill of exceptions as accepted by the defendant stated that it was the second application, and contained only the requisites of the first application, there was no error in overruling same. 3. —Same—Charge of Court—Recent Possession—Explanation. Where, upon trial of theft, the defendant’s explanation of his possession of the recently stolen property was directly in issue by the testimony offered by the defendant himself, there was no error in” the court submitting this issue. 4. —Same—Charge of Court—Weight of Evidence. Where, upon trial of theft, the court’s charge upon recently stolen property and defendant’s explanation of his possession thereof did not assume that the property was stolen but submitted that question to the jury, clearly and aptly, it was not on the weight of the evidence. 5. —Same—Charge of Court—Claim of Ownership. Where, upon trial of theft, the appellant claimed that he did not assert a distinct -claim of ownership to the alleged stolen property but on the contrary asserted said ownership to be in the injured party, and the court properly submitted all these matters to the jury, there was no error. 6. —Same—Description of Money—Variance. Where the indictment charged the defendant with the theft of lawful current money of the United States of America and the evidence supported this allegation, there was no variance. 7. —Same—Charge of Court—Fraudulent Intent. Where, upon trial of theft, the court properly submitted the question of fraudulent intent on the part of the defendant to appropriate the alleged stolen property, etc., there was no error. 8. —Same—Misconduct of Jury—Force—Coercion—Undue Influence—Affidavit of Juror. Where, after a conviction of theft, the defendant in his motion for new trial attached the affidavit of one of the jurors thereto, in which it was claimed that the juror upon hearing the presiding judge was going home and would not return until a day or two thereafter, unless the jury agreed upon a verdict, and that therefore the juror agreed to • a verdict of guilty, etc. Held, that the lower court should not have permitted this affidavit impeaching the juror’s verdict to have been filed, and there was no error in overruling the motion.
61 Tex. Crim. 211Hayden v. State (1911)
Burglary—Preparation for Trial—Statement of Officers. Where, upon appeal from a conviction of burglary, the appellant claimed that at the time of the trial he was but sixteen years of age, and that he was misled by the statement of the sheriff in not preparing for trial and securing his evidence by which he could show a good defense or mitigate his punishment, all of which he set up in his motion for new trial, but there was nothing in the record that the officer had fraudulently imposed upon appellant, or which would authorize a reversal, the case must be affirmed.
61 Tex. Crim. 214Ridge v. State (1911)
1. —Murder—Evidence—Bills of Exception—Practice on Appeal. Where, upon appeal from a conviction of murder, the bills of exception to the rejected testimony were not full and explicit within themselves, so that the matters presented to the court for revision could be comprehended without recourse to the statement of facts, or some other part of the record, the same could not be considered. 2. —Same—Evidence—Date of Offense. Where, upon appeal from a conviction of murder, the court, notwithstanding the defective bills of exception, considered same, an objection which claimed a variance between the evidence and the allegations in the indictment charging the date of the murder on the 24th of February, 1910, and the evidence showing that it was committed on January 24, 1910, was untenable, and there was no error in admitting testimony of facts occurring before February 24, 1910. 3. —Same—Evidence—Weight of Testimony. Where, upon trial of murder, the objections to the testimony with reference to finding a certain whisky bottle in the deceased’s place of business were more to the weight of the testimony than to its admissibility, there was no error. 4. —Same—Evidence—W atch. Where, upon trial of murder, the State relied upon certain testimony concerning a watch worn by the deceased, there was no error in admitting testimony about finding said watch, and its identity. 5. —Same—Charge of Court—Robbery—Murder in the First Degree. Where, upon trial of murder, the indictment alleged that the defendant killed deceased by choking him, and in the second count by some manner and the use of some means unknown to the grand jurors, and the evidence clearly established the fact that the deceased was murdered in the perpetration of robbery—all the testimony being circumstantial—there was no error in_ the court’s charge defining robbery to instruct the jury that if murder is committed in the perpetration of robbery, it is murder in the first degree. 6. —Same—Sufficiency of the Evidence—Circumstantial Evidence. Upon trial of murder, where the evidence was sufficient to support the conviction, although entirely circumstantial, the same will not be disturbed.
61 Tex. Crim. 221Karchmer v. State (1911)
City Charter and Ordinance—City Court—Evidence—Junk Dealers. State courts will not take judicial knowledge of city ordinances, and upon trial in the County Court, upon appeal from the City Court of violating a city ordinance r gulating junk dealers, it was reversible error to take judicial notice of such ordinance and dispense with the proof of same. Following Wilson v. State, 16 Texas Crim. App., 501, and other eases.
61 Tex. Crim. 223Morrison v. State (1911)
The opinion states the case.
61 Tex. Crim. 225Smith v. State (1911)
The opinion states the case.
61 Tex. Crim. 229Camp v. State (1911)
1. —Occupation Tax—lightning Rods—Dealer—Canvasser. Where, upon trial of pursuing the occupation of canvassing for the sale of lightning rods without having paid the tax due thereon, defendant showed he had paid the dealer’s tax, this was no defense and he was not authorized to pursue the occupation of making sales by canvassing; to give this construction to the statute would render it unconstitutional. Following Ex Parte Over-street, 39 Texas Crim. Rep., 468; 46 S. W. Rep., 825, and other cases. 2. —Same—Dealer—Canvasser—Case Stated. Where, upon trial of pursuing the occupation of a canvasser for the sale of lightning rods, the evidence showed that the defendant had his office in town where he conducted the business of dealer in lightning rods, and that he would also go over the county soliciting orders for the sale of lightning rods, he could not plead his license as a dealer in defense of not having paid the tax and secured his license as a canvasser, as they are two different occupations [Rehearing denied March 15, 1911,—Reporter.]
61 Tex. Crim. 232James v. State (1911)
The opinion states the case.
61 Tex. Crim. 232Cunningham v. State (1911)
Theft from Person—Statement of Pacts—Practice on Appeal. In the absence of a statement of facts, if the charge is applicable to any state of facts that might be made by the testimony under the indictment, it will be assumed that the court properly submitted the whole law of the case.
61 Tex. Crim. 233Harwell v. State (1911)
The opinion states the case.
61 Tex. Crim. 235Franklin v. State (1911)
Intimidation—Indictment—Insufficiency of the Evidence. Where the indictment charged, and the facts showed, that the State relied upon the acts of defendant in taking from the prosecutor a couple of mules which the latter had taken up for depredating upon his crop and over the protest of the latter, the same showed no violation of Article 600, Penal Code, and the conviction could not be sustained.
61 Tex. Crim. 237Ex Parte Epperson (1911)
Prom Bed Biver County. Original application for writ of habeas corpus asking release from arrest for unlawfully operating an automobile.
61 Tex. Crim. 238Florence v. State (1911)
1. —Murder—Continuance—Cumulative Testimony. Where, upon trial of murder, one of the alleged absent witnesses attended • court, and the testimony of the other absent' witness, who was the brother of the defendant, was not contested by the State’s testimony, but admitted by the State’s witnesses and testified to by some of defendant’s witnesses; and the application for continuance moreover did not show sufficient diligence, there was no error in overruling same. ' 2. —Same—Evidence—General Reputation. Upon trial of murder there was no error in excluding testimony as to the general reputation of State’s witnesses for virtue and chastity; the court admitting testimony as to reputation for veracity. 3. —Same—Argument of Counsel—Bills of Exception. Where, upon appeal from a conviction of murder, the bills of exception with reference to State’s counsel’s argument were so qualified as not to present error; and there was no requested charge withdrawing remarks of counsel, there was no error. 4. —Same—Evidence—Questions to Witness. Where the question asked by State’s counsel was held by the court improper, whereupon State’s counsel so changed the form of the question as to make it unobjectionable, there was no error. 5. —Same—Charge of Court—Impeaching Witness—limiting Testimony. Upon trial of murder there was no error in. the court’s charge limiting impeaching testimony. 6. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the conviction was fully sustained for murder in the second degree by the evidence, the same will not be disturbed.
61 Tex. Crim. 241Misso v. State (1911)
The opinion states the case.
61 Tex. Crim. 243Slatter v. State (1911)
The State’s testimony showed that the defendant called upon the chief State’s witness at the latter’s bank to borrow some money; that the witness made out a note and handed it to the defendant to get sureties thereon; that defendant returned in a few days presenting. said note signed by two parties as sureties; that prosecuting witness did not like the signature, and defendant said that one of the sureties, naming him, was sitting on his horse at the time he signed the note;…
61 Tex. Crim. 247Sharp v. State (1910)
The opinion states the case.
61 Tex. Crim. 250Thompson v. State (1910)
1. —Keeping Disorderly House—Bills of Exception—Practice on Appeal—Evidence. Where, upon appeal from a conviction of keeping a disorderly house, the bill of exceptions, tested by its recitals, or read in the light of the entire record, was insufficient in that the time of the matter sought to be shown did not appear to be of such date as to render the testimony admissible, there was no reversible error. 2. —Same—Evidence—Conclusion of Witness. Upon trial of keeping a disorderly house there was no error in not permitting defendant to testify that she had not aided or abetted or encouraged anyone in carrying on a disorderly house or bawdy house upon her premises, this was simply a conclusion, she already having denied that she kept such a house. 3. —Same—Evidence—Other Transactions. Upon trial of keeping a disorderly house there was no error in sustaining an objection to the question as to how long it would take another disorderly house which had been abandoned as such to get over that reputation, as this was simply a conclusion of the witness, and did not affect the character of the house which was involved in the trial. 4. —Same—Affidavit—Information—Date of Offense. Where, upon appeal from a conviction of keeping a disorderly house, it appeared from the record that the contention that the complaint and information were filed after the alleged date of the offence, was not in fact true, there was no eror.
61 Tex. Crim. 254Garrett v. State (1911)
1. —Local Option—Different Elections—Precincts—County. The holding of an election in any one or more of the several justice precincts in a county, even though such precinct adopts the local option law, does not prevent the county from thereafter immediately holding an election for the whole county, and when the whole county adopts local option it supersedes and does away, at least for the length of time that the county continues the law in force, the previous adoption thereof by one or more of the several precincts. l 2. —Same—Felony Penalty—Repeal of Law—County—Precinct—Elections. The Act of the thirty-first Legislature amending article 402, Penal Code, fixing the penalty at confinement in the penitentiary for a violation of the local option law, having been adopted in the county of prosecution after said Act went into effect for the whole county, supersedes and sets aside the adoption of local option in a previous election in some of the precincts of said county. Following Raby v. State, 42 Texas Crim. Rep., 56. 3. —Same—Case Stated—Statutes Construed—Different Elections. Where, upon trial of a violation of the local option law, it appeared that several of the precincts in the county of the prosecution had previously adopted local option before the Act of the thirty-first Legislature making it a felony went into effect, but that since said Act the county had adopted local option over the whole county, the defendant was properly tried and convicted under said latter Act, the offense occurring after said last election for the entire county. 4.—Same—Sufficiency of the Evidence. Where, upon trial of a. violation of the local option law, there was a conflict of testimony, but the evidence was sufficient to sustain a conviction, the same will not be disturbed.
61 Tex. Crim. 259Nash v. State (1911)
The opinion states the case.
61 Tex. Crim. 294Mosley v. State (1911)
The opinion states the case.
61 Tex. Crim. 298Kirksey v. State (1911)
1. —Local Option—Continuance—Practice on Appeal. Where a case is reversed on other grounds than the overruling of appellant’s application for continuance, it is unnecessary to rule thereon on appeal. 2. —Same—Election Contest—Collateral Attack. Under the Act of the thirtieth Legislature, page 447, session Acts, an election contest over the validity of a local option election must be brought directly in the district court within thirty days after the result of the election, and the validity of the election cannot be raised in á prosecution of a violation of such local option law. After sixty days the validity of the election is presumed in the absence of a contest. 3. —Same—Evidence—Impeachment—Other Offenses. Upon trial of a violation of the local option law it was reversible error to permit the State’s counsel to ask defendant when on the witness stand how many times he had been previously indicted for selling intoxicating liquors, and to compel him to answer this question. Following Simmons v. State, 55 Texas Srim. Rep., 441, and other cases. 4. —Same—Argument of Counsel. See opinion for admonition of counsel never to go outside of the record in the discussion of a case.
61 Tex. Crim. 301Davis v. State (1911)
The opinion states the case.
61 Tex. Crim. 301Riggins v. State (1911)
The opinion states the case.
61 Tex. Crim. 303Young v. State (1911)
The opinion states the case.
61 Tex. Crim. 307Edwards v. State (1911)
The opinion states the case.
61 Tex. Crim. 320Ex Parte Stein (1911)
From Fayette County. Original application for writ of habeas corpus asking release from a judgment of the County Court in an appeal from the Justice Court under a fine less than $100. The opinion states the case.
61 Tex. Crim. 324Wooldridge v. State (1911)
Seduction—Final Judgment—Practice on Appeal. Where, upon appeal from a conviction of seduction, the transcript did not show that final judgment-sentence was ever made or entered, the appeal must be dismissed.
61 Tex. Crim. 325Hardgraves v. State (1911)
The opinion states the case.
61 Tex. Crim. 328Smith v. State (1911)
1. —local Option—Jury and Jury law. Where, upon trial of a violation of the local option law, it appeared from the record on appeal that the jurors who tried appellant had tried several other cases involving a violation of the local option law, in which they had rendered verdicts of guilty upon the testimony of the same witness who testified against the defendant, and whose credibility was strongly questioned, and that the jurors had passed upon the credibility of said witness and the weight to be given to his testimony in the defendant’s case, the conviction resting solely upon such testimony, and the defendant at the proper time objected to said jtirors and requested that another jury be selected, there was reversible error. 2. —Same—Practice in the County Court—Court Officers. See opinion for remarks of court on the conduct of prosecuting attorney and sheriff in selecting the jury and conducting prosecution. 3. —Same—Evidence—Detective—Prosecution. See opinion for remarks by the court in the conduct of officers in hiring detectives and inducing parties to violate the law, deprecating such practice. 4. —Same—Absence of Defendant—Charge of the Court. Where, upon trial of a violation of the local option law, it appeared from the record on appeal that the entire charge of the court was read to the jury during the absence of the defendant, except the last paragraph thereof, and the defendant did not personally waive his absence even after the defendant was brought into court, but his counsel waived the re-reading of such charge, the same was reversible error.
61 Tex. Crim. 334Brown v. State (1911)
The opinion states the case.
61 Tex. Crim. 338Newman v. State (1911)
1. —Illegal Practice of Medicine—Indictment. Where, upon trial of unlawfully engaging in the practice of medicine, the indictment followed approved precedent, there was no error. Following Newman v. State, 58 Texas Grim. Rep., 223. 2. —Shme—-Masseur—Charge of Court—Sufficiency of the Evidence. Where, upon trial of the illegal practice of medicine, the evidence showed that the defendant was treating and offering to treat disease as a masseur and charged for his services either directly or indirectly, and the court properly submitted the issue under the law, the conviction is sustained under the Act of the Thirtieth Legislature, page 224.
61 Tex. Crim. 340Offield v. State (1911)
Notice of Appeal—Subsequent Term—Practice on Appeal. While judgment and sentence may be entered at a subsequent term, the same cannot be reformed thereat, and the notice of appeal must be entered during the term at which the judgment was entered and sentence pronounced.
61 Tex. Crim. 341Fox v. State (1911)
Unlawfully Selling Mortgaged Property—Charge of Court—Date of Offense. Where the indictment was returned on the 30th of September, 1909, and the court authorized a conviction by his charge for a sale of the alleged mortgaged property something like ten months after the return of the indictment, to wit, on the 15th of July, 1910, there was reversible error. [Rehearing denied March 22, 1911.—Reporter.]
61 Tex. Crim. 342Ex Parte Farnsworth (1911)
From Dallas County. Original habeas corpus proceeding asking release from arrest for the violation of a city ordinance. The opinion states the case.
61 Tex. Crim. 349Smith v. State (1911)
1.—Assault to Murder—Charge of Court—Principals. . The mere fact that a party may have knowledge of a crime will not make him guilty as a principal, and a charge of the court which submitted this as the law of the case was reversible error. 2. —Same—Charge of Court—Defense of Another. Where, upon trial of assault to murder, the evidence showed that the defendant acted in the defence of others, and the charge of the court confined itself to the question as to whether' the lives of such others were in danger, or of suffering serious bodily injury, the same was too restrictive. 3. —Same—Charge of Court—Deadly Weapon. Where, upon trial of assault to murder, there was no evidence whether the stick used was a deadly weapon, the court should not have charged upon a deadly weapon.
61 Tex. Crim. 352Patton v. State (1911)
The opinion states the case.
61 Tex. Crim. 353Ex Parte Farnsworth (1911)
From Dallas County. Original habeas corpus proceeding asking release from arrest for violating a city ordinance upon a capias issued from the Corporation Court of said city.
61 Tex. Crim. 356Williams v. State (1911)
1. —Murder—Charge of Court—Self-Defense—Threats. Where, upon trial of murder, the evidence showed that the deceased attacked defendant and his brother, and that he had also made threats against the defendant, and the court’s charges on self-defence were confusing in character and did not separate these matters and inform the jury in such way that they would understand definitely and fully the law of self-defense, both from the viewpoint of self-defense independent of threats, and self-defense viewed in the light of threats, the same was reversible error. 2. —Same—Charge of Court—Standpoint of Defendant. Where, upon trial of murder, the court’s charge on self-defense was so framed as to convey to the minds of the jury the impression that they must view the evidence from their standpoint instead of the standpoint of the defendant, the same was reversible error. 3. —Same—Charge of Court—Resort to Other Means. Where, upon trial of murder, the evidence tended to show that the deceased attacked defendant with a view of inflicting death, it was reversible error to charge the jury that the defendant was required to resort to any means other than to defend himself as best he could. 4. —Same—Charge of Court—Manslaughter—Adequate Cause. Where, upon trial of murder, the evidence showed that a few minutes before the killing defendant and deceased met and had an altercation, in which deceased applied vile epithets to the defendant, threatening to kill him, and telling him to arm himself, that the matter had to be settled that day between them; and also showed that there was great disparity of size and strength between the parties, deceased being much the larger and stronger man, etc., the court should have submitted a charge on manslaughter. 5. —Same—Remarks by Judge. See opinion admonishing trial courts not to indulge in remarks in violation of the statute.
61 Tex. Crim. 364Watts v. State (1911)
The evidence showed that the State’s witness had borrowed from the defendant $1.75 in money with which to pay his poll tax.
61 Tex. Crim. 370Alexander v. State (1911)
The indictment alleged, after alleging that an election was held and local option in favor, etc., that the defendant, in violation of law pursued the occupation and business of selling intoxicating liquors in local option territory during the months of January, February and March, 1910, and specifically alleged that he had so sold such liquor to a person named therein on or about the 18th, 22nd and 27th of January, 1910, alleging each as a separate sale.
61 Tex. Crim. 372Slack v. State (1911)
The following statement from appellant’s brief is substantially correct. The evidence disclosed that on June 5, 1909, the local option election was held in Comanche County, Texas, which resulted in the adoption of the local option law. The order of the Commissioner’s Court, declaring the result, of this election, was published in the Pioneer Exponent” on the 17th and 24th days of June, and the 1st and 8th days of July, 1909.
61 Tex. Crim. 413Blocker v. State (1911)
The opinion states the case.
61 Tex. Crim. 416Rix v. State (1911)
Rape—Age of Prosecutrix—Insufficiency of the Evidence. Where, upon trial of rape, there was much conflict in the State’s testimony as to the age of the prosecutrix, and the jury based their verdict upon the testimony of a witness who fixed the age of the prosecutrix above that of the age of consent, the conviction could not be sustained.
61 Tex. Crim. 420Callicoatte v. State (1911)
The opinion states the case.
61 Tex. Crim. 421Hyatt v. State (1911)
Drunkenness—Officer—Transfer of Indictment. Where the order of transfer of the indictment" from the District to the County Court did not identify the case, the same was insufficient.
61 Tex. Crim. 422Hardgraves v. State (1911)
The opinion states the case.
61 Tex. Crim. 425Tabor v. State (1911)
The opinion states the case.
61 Tex. Crim. 427King v. State (1911)
The opinion states the case.
61 Tex. Crim. 428Henley v. State (1911)
1.—Theft—Information—Complaint. Where the affidavit did not charge that the alleged stolen property was taken from the person alleged to have possession, the same was insufficient. 2.—Same—Charge of Court—Consent. Where the information and complaint alleged that the property was in the possession of J. who was holding it for H. and that it was taken without the consent of either, and under the charge of the court the property could have been taken with the consent of J., the same was reversible error.
61 Tex. Crim. 429Sparkman v. State (1911)
The opinion states the case.
61 Tex. Crim. 431Poudrill v. State (1911)
Local Option—Law in Force—Insufficiency of the Evidence. Upon trial of a violation of the local option law, where no evidence was offered showing that local option had been adopted in the county of the prosecution, the conviction could not be sustained.
61 Tex. Crim. 432High v. State (1911)
Malicious Mischief—Insufficiency of the Evidence. Where, upon trial of unlawfully wounding with firearms a mule belonging to another, the evidence was entirely circumstantial and did not in any manner connect defendant with the commission of the offense, .the conviction could not be sustained.
61 Tex. Crim. 434Roberts v. State (1911)
Tried below before the Hon. J. W. Patterson. Appeal from a conviction of theft of a deed; penalty a fine of $300 and six months confinement in the county jail.
61 Tex. Crim. 436Pace v. State (1911)
The opinion states the case.
61 Tex. Crim. 440Young v. State (1911)
1. —Illegal Practice of Medicine—Statement of Facts—Bills of Exception. To be of any validity whatever the statement of facts and bills of exception must be approved and signed by the judge. Following Lawrence v. State, 7 Texas Crim. App., 192, and other cases. 2. —Same—Indictment—Statutes Construed. Where the indictment is valid and charges an offense under section 4 and subdivision 3 of section 13 of the Act of the Thirtieth Legislature, defining and regulating the practice of medicine, there is no error. [Rehearing denied March 1, 1911.—Reporter.]
61 Tex. Crim. 441Duke v. State (1910)
The opinion states the case.
61 Tex. Crim. 449Ex Parte Cooks (1911)
1. —Public Road—Failing to Work on—Terms of County Court. Under the law the Commissioners Court fixes the time when the County Court shall meet and the length of its term; and where defendant was tried for disobeying the summons to work on the public road at a term of the County Court within the time fixed hy the Commissioners Court, no adjournment being shown, "he was legally tried. 2. —Same—Special Judge—County Court. The law authorizes the election of a special county judge under certain circumstances, and where it appeared that one was elected within the three days fixed by the statute, there was no error; and such court would remain in session until the end of the term unless sooner adjourned. 3. —Same—Habeas Corpus—Appeal—Jurisdiction—Judgment. Upon an appeal from a habeas corpus proceeding before the county judge asking a release under a judgment of conviction in the County Court appealed from the Justice Court, the fine being less than one hundred dollars in the County Court, the Court of Criminal Appeals will not go behind such judgment valid on its face, and inquire into the facts whether the defendant under the evidence ought to have been convicted; and there was no appeal to this court from the County Court. 4. —Same—Special Road law—Constitutional law. The Legislature was empowered to pass a special road law for Shelby County, and the contention of appellant, who was convicted thereunder, that it was unconstitutional is not tenable. Following Smith v. Grayson County, 18 Texas Civ. App., 153, 44 S. W. Rep., 920, and other cases. 5. —Same—Habeas Corpus—Appeal—Writ of Error. The writ of habeas corpus can not be made the function of a writ of error or certiorari, and does not deal with errors o- irregularities which render proceedings voidable merely, but such only as render them absolutely void. Following Perry v. State, 41 Texas, 488, and other cases. .
61 Tex. Crim. 454Gray v. State (1910)
The opinion states the case.
61 Tex. Crim. 489McMahan v. State (1911)
1. —Bigamy—Evidence—Subsequent Marriage. Upon trial of bigamy there was no error in admitting testimony of the county judge that he had performed the marriage ceremony in the subsequent marriage, as well as the original marriage license, and also testimony as to the presence of witnesses during said marriage ceremony. 2. —Same—Remarks by Judge—Weight of Evidence—Practice. Where, upon trial of bigamy, in ruling upon certain testimony offered by the defense with reference to a divorce of defendant from his first wife, which testimony was first admitted and then withdrawn from the jury, the court while this testimony was being offered and discussed by the attorneys pro and con made remarks which implied that he did not believe the witnesses who testified, the same was reversible error 3.—Same—Change of Venue—Practice on Appeal. See opinion with reference to testimony upon motion to change venue which might have probably been sufficient, but inasmuch as the same was not embodied in the bill of exceptions filed during the term at which defendant was convicted, the same can not be considered on appeal.
61 Tex. Crim. 496Engman v. State (1911)
1. —Carrying Pistol—Recognizance—Reinstatement of Appeal. Where, upon appeal from a conviction of unlawfully carrying a pistol, the recognizance failed to recite that appellant was convicted of a misdemeanor, and to give the amount of the punishment, the case must be dismissed; inasmuch, however, as the appellant has filed a new recognizance according to law, the appeal will be reinstated. 2. —Same—Charge of Court—Bona Fides. Where, upon trial of unlawfully carrying a pistol, the defense was that defendant loaned the pistol to another at whose house he was found, and where he was for the purpose of securing the pistol and take it home, it was reversible error in the court’s charge to instruct the jury that if defendant had “bona fide” loaned the pistol to said third party, etc., to acquit him, as it was not a question whether the pistol was loaned- in good faith or not.
61 Tex. Crim. 498White v. State (1911)
Tried below before the Hon. W. H. Pope. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary. The opinion states the case.
61 Tex. Crim. 503Paris v. State (1911)
The opinion states the case.
61 Tex. Crim. 503Gonzales v. State (1911)
Withdrawal of Appeal—Practice on Appeal. After an appeal has been perfected, the request to withdraw same must bp signed bv the defendant- in person, and acknowledged before some officer that the defendant signed the request in person.
61 Tex. Crim. 504Campbell v. State (1911)
The opinion states the case.
61 Tex. Crim. 505Thomas v. State (1911)
Aggravated Assault—Statement of Pacts—Practice on Appeal—Newly Discovered Evidence. Where, upon appeal from a conviction of aggravated assault, there was no statement of facts or hill of exceptions with the record, the question of the insufficiency of the evidence and newly discovered evidence can not be considered and the case must be affirmed.
61 Tex. Crim. 507Layton v. State (1911)
The opinion states the case.
61 Tex. Crim. 509Hart v. State (1911)
1. —Burglary—Exchange of District Judges—Plea in limine. Where a plea objecting to the exchange of district judges was submitted without evidence, the same can not be considered on appeal; besides under Article 1108, Revised Civil Statutes, any judge of the District Court may hold court for or with any other district judge merely upon the invitation of the regular presiding judge. 2. —Same—Continuance—Immaterial Testimony. Where, upon trial of burglary, the evidence showed that the defendant virtually participated in the act of the burglary and that some of the stolen goods were found in his possession, and there was no effort made on the trial to show that the defendant had been imposed upon and the stolen goods left in his house without his knowledge, there was no error m overruling his application for continuance for the want of the absence of testimony to show that the main State’s witnesses had ill feeling against the defendant and stated that he would send him to the penitentiary if possible. 3. —Same—Wife of Defendant—Continuance. Where defendant sought to continue the case on account of the absence of his wife, alleging that she was sick and under the care of a physician, but attached no certificate nor affidavit of any physician to his application, and did not show any diligence to procure her attendance, there was no error in overruling his motion. 4. —Same—Evidence—Motion to Strike Out. Where, upon trial of burglary, defendant’s codefendant turned State’s evidence, there was no error in the court’s refusal to strike out his testimony. 5. —Same—Evidence—Bills of Exception. Where there appeared no bills of exception in the record reserved to the testimony objected to, the same can not be considered on appeal.
61 Tex. Crim. 514Garrett v. State (1911)
The opinion states the case.
61 Tex. Crim. 515Hartfield v. State (1910)
1. —Assault to Murder—Continuance—Practice on Appeal. Where defendant failed to reserve a bill of exceptions to the court’s action in the overruling of an application for continuance, the same can not be considered on appeal. 2. —Same—Charge of Court—Defense of Property. Where, upon trial of assault with intent to murder, the State’s testimony showed that prosecuting witness won the money in a game of cards, and that defendant shot him because he would not give back the money; and defendant claimed that the prosecuting witness took the money out of his clothes and that there was no game, and that when defendant demanded his money prosecutor struck him with a knife and that he acted in self-defense, there was no error in the court’s failure to submit the law with reference to the defense of property under article 680, Penal Code. 3. —Same—Words and Phrases—Charge of Court. Where, upon trial of assault to murder, the court in submitting his charge inadvertently used the word deceased instead of the name of the injured party in one portion of the charge but submitted the matter properly throughout the other portions of the charge, and the jury could not have been misled by this inadvertence, there was no error. 4. —Same—Charge of Court—Deadly Weapon—Firearms. Upon trial of assault with intent to murder, where, the evidence showed that a pistol was used as a firearm, the same was a deadly weapon and it was unnecessary for the court to define a deadly weapon.
61 Tex. Crim. 519Downing v. State (1911)
1. —Perjury—Indictment—Materiality of Statement. Perjury may consist not only in false and corrupt testimony, relative to the main facts immediately at issue, but also in such testimony relative to material circumstances which tend to prove the issue, and irrespective of the truth or falsity of the main facts at issue. Following Bradbury v. State, 7 Texas Grim. App., 375. 2. —Same—Case Stated—Sufficiency of Indictment. Where, upon trial of perjury, the indictment showed that the alleged perjury occurred in a civil suit involving the signature and endorsement of certain negotiable notes, and that defendant in such suit swore that one of the signatures of the makers of the notes had been signed at the time he purchased same, and this fact was sought to be used by him as a circumstance that he was an innocent purchaser of said notes, which the indictment alleged was deliberate and wilfully false and assigned the perjury upon this fact, there was no error in overruling a motion to quash the indictment. 3. —Same—Evidence—Testimony in Civil Suit. Upon trial of perjury growing out of a civil suit there was no error in permitting the State’s witnesses, including the court stenographer, to testify as to the testimony of defendant in the trial of said civil suit upon which the perjury was based. 4. —Same—Evidence—Circumstances.» Where, upon trial of perjury growing out of a certain civil suit, in which the material issue was as to when the name of one of the makers was affixed to the notes involved in said civil suit, there was no error to admit in evidence all the testimony bearing upon the issue as to when said notes were signed by the alleged makers thereof. 5. —Same—Evidence—Pleadings in Civil Suit. Upon trial of perjury growing out of the testimony given by defendant in a certain civil suit, there was no error in admitting in evidence the pleadings in said civil suit. 6. —Same—General Reputation of State’s Witness—Reputation of Defendant’s Witnesses. Upon trial of perjury there was no error in admitting testimony attacking the general reputation of the defense witnesses for truth and veracity, but it was reversible error to permit the State to prove the good reputation for truth and veracity of some of its own witnesses, when no attack had been made thereon and thus to bolster up the State’s ease. 7. —Same—Evidence—Deed of Trust—Husband and Wife—Attorney and Client. Upon trial of perjury, it was reversible error to compel the wife of the defendant, by subpoena duces tecum, to appear in the court and deliver a certain deed of trust which was involved in the trial of the case and introduce the same in evidence against the husband; and to compel defendant’s attorney to answer certain questions with reference to said deed of trust and ascertain through him that the same was in possession of defendant’s wife. 8. —Same—Evidence—Immaterial Matter Foreign to the Issue. Upon trial of perjury it was improper to permit the State’s counsel, by his interrogation of defendant’s witnesses, to attack the reputation and character of a party who was not a witness in the case, and which matter had no bearing upon the question as to whether defendant gave the alleged false testimony in a certain civil case upon which the alleged perjury was based. 9. —Same—Hearsay Evidence. Upon trial of perjury it was error to permit a State’s witness to testify relative to the terms of the trade of cancellation of certain notes involved, of which the defendant had no knowledge at the time and was not present. [¡Rehearing denied April 19, 1911.—Beporter.]
61 Tex. Crim. 527Wheeler v. State (1911)
1.—Murder—Continuance—Testimony Taken as True. Where, upon trial of murder, the court overruled the motion for continuance but it was afterwards agreed to admit the testimony of the absent witness and consider the same as true, there was no error in overruling the motion for new trial. 2. —Same—Sufficiency of the Evidence—Alibi. Where, upon trial of murder, defendant claimed an alibi, but the testimony of his witnesses on this issue did not sustain the same, even if the testimony of the absent witness was conceded to be true, there was no reversible error. 3. —Same—Evidence—Wad—Caliber of Pistol Load. Where, upon trial of murder, the State introduced testimony to the effect that, after the State’s witness had testified that he was down where the body of the deceased was found the next morning after the homicide, he and another State’s witness found two bullets under where deceased’s head was lying and that one of them picked up a wad near there and that the same was numbered but that the slip containing the number had been lost, etc., there was no error, inasmuch as the testimony showed that this was the wad produced before the court at a former trial by the same witness, and the whole wad was in court except the paper covering on which was printed the size of the load. 4. —Same—Evidence—Shells—Cartridges. Where, upon trial of murder, the State introduced testimony that a State’s witness had made investigation to find shells similar to the one that was found at the place of the homicide but could not find one anywhere in town, and the bill of exceptions on appeal did not show why this testimony was inadmissible, there was no error; especially where other evidence showed that the wad and shells found in defendant’s room were of a peculiar kind, and corresponded with those found at the body of deceased. 5. —Same—Evidence—Motive—111 Peeling. Upon trial of murder there was no error to admit testimony of the State to show ill feeling between the defendant and the deceased, by the declaration made by the defendant some time before the homicide, to the effect that the deceased must stop writing letters or he would be found lying dead on the road. 6. —Same—Evidence—Threats. Upon trial of murder there was no error in admitting testimony showing declarations of the defendant in which he accused the deceased of being the author of defendant’s trouble and the cause of the breaking up of the relations between him and a certain young lady, and in which he threatened the deceased. 7. —Same—Motion to Strike out Evidence. Where, upon trial of murder, the testimony was largely circumstantial, there was no error in overruling a motion to exclude the testimony of certain witnesses which covered rather a wide range of circumstances in regard to the facts used to connect appellant with the homicide. 8. —Same—Charge of Court—Circumstantial Evidence—Reasonable Doubt. Where the court in his charge on circumstantial evidence included the reasonable doubt, there was no error in not repeating the same in the conclusion of his charge that the circumstances must exclude to a reasonable and moral certainty every other reasonable hypothesis than that of the guilt of the defendant. 9. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence supported a conviction of murder in the second degree, there was no error.
61 Tex. Crim. 538Morfett v. State (1911)
1. —Local Option—Recognizance—Misdemeanor—Reinstatement. Where, in an appeal from a misdemeanor conviction, the recognizance was defective and the same was dismissed, the appeal was reinstated upon the filing of a sufficient recognizance. 2. —Same—Election Contest—No Law in Force. Where appellant was convicted of a violation of the local option law on an election which was afterwards held to be void in an election contest, which was made to appear in the Court of Criminal Appeals, the cause will be reversed and dismissed.
61 Tex. Crim. 539Clark v. State (1911)
1. —Embezzlement—Principal and Agent—Loan—Insufficiency of the Evidence. Where, upon trial of embezzlement, the evidence showed that defendant’s relation to the prosecutrix in the financial transaction between them was not that of a trustee or agent, but that defendant was simply a borrower and she a lender of the amount of money alleged to have been embezzled, a conviction for embezzlement could not be sustained. 2. —Same—Fraudulent Intent—Loan—Buie Stated. The rule is that even where a party obtains money by a loan though he may have had the fraudulent intent not to repay, that such transaction would not constitute embezzlement.
61 Tex. Crim. 544Fox v. State (1911)
Burglary—Indictment—Want of Consent. Where the indictment for burglary did not contain the allegation that the alleged stolen goods were taken without the consent of the alleged owner, •the offense of burglary with the intent to commit theft was not sufficiently alleged.
61 Tex. Crim. 544Mueller v. State (1911)
1.—Misdemeanor—Statement of Facts—County Court. Where appellant was convicted in the County Court for a misdemeanor and appealed, but did not file his statement of facts within twenty days after adjournment of court, the same could not be considered. 2. —Same—Statutes Construed—Time of Piling Statement of Pacts. The Act of the Thirty-first Legislature, chapter 39, page 374, does not repeal chapter 7, of the Act of the Thirtieth Legislature, with reference to time of filing statements of fact. 3. —Same—Court Stenographer—County Court. The Act of the Thirty-first Legislature does not provide for the appointment of a court stenographer in criminal cases tried in the.County Court; this applies only to cases in the District Court.
61 Tex. Crim. 546Treadaway v. State (1910)
The opinion states the case.
61 Tex. Crim. 549Moray v. State (1911)
1. —Burglary—Charge of Court—Purchase. Where, upon trial of burglary, there was evidence that the defendant had purchased the alleged stolen property, the court erred in not charging upon this phase of the case. 2. —Same—Want of Consent. Where, upon trial of burglary, the State failed to prove want of consent of the owner as alleged in the indictment, there was reversible error. 3. —Same—Charge of Court—Night-time—Sundown. Where, upon trial of burglary, the court charged the jury that by nighttime is meant any time from thirty minutes before sundown until thirty minutes before sunrise, there was error; as night-time under the statutes is thirty minutes after sundown, etc.
61 Tex. Crim. 551Best v. State (1911)
The opinion states the case.
61 Tex. Crim. 555Spiller v. State (1911)
Theft of Hog—Moral Turpitude—Remoteness. Upon trial for theft of a hog, it was reversible error to force one of defendant’s witnesses to testify that some fifteen or twenty years ago he was sent to the penitentiary; this time was too remote. Following White v. State, 57 Texas Grim. Rep., 196, and other cases. 2. —Same—Charge of Court—Defensive Matter. See opinion for failure of court to present defendant’s defensive matters, and the court’s comments thereon. 3. —Same—Insufficiency of the Evidence. See opinion for facts held not to show that there was any fraudulent connection of the defendant with the alleged theft of the hog. 4. —Same—Owner—Insufficiency of the Evidence. Where, upon trial of the theft of a hog, the evidence was insufficient as to the alleged ownership of the hog, there was reversible error.
61 Tex. Crim. 558Whitehead v. State (1911)
The prosecutrix testified that about the 25th of May, 1907,• she, in company with her father, visited her brother-in-law, the defendant, who lived some distance from her parents’ home; that her father stayed there with her about two days, and that they were assigned a room together in which they slept two nights in succession, but in different beds; that her father then returned to his home and she remained with her brother-in-law and sister about a week longer; that…
61 Tex. Crim. 573Ex Parte Thomas (1911)
Habeas Corpus—Appeal—Jurisdiction. An appeal does not lie from an order of the lower court dismissing an application for a writ of habeas corpus; the Appellate Court has no jurisdietion.
61 Tex. Crim. 573Austin v. State (1911)
The opinion states the case.
61 Tex. Crim. 585Offield, Alias James v. State (1911)
The opinion states the case.
61 Tex. Crim. 589Williams v. State (1911)
1. —Assault to Murder—Charge of Court—Malice. Where, upon trial of assault with intent to murder, the court instructed the jury that if the defendant wilfully, intentionally and without lawful justification or excuse, with intent to kill, and when his mind was sufficiently cool to contemplate the nature and character of the act and probable consequences, shot the prosecutrix, then the shooting in law would be done upon malice, it was not necessary to define the term malice. 2. —Same—Charge of Court—Definition of Assault. Where, upon trial of assault with intent to murder, the court instructed the jury that if the defendant wilfully, etc., shot the injured party without excuse with a pistol, this was a sufficient definition of an assault. {Rehearing denied March 22, 1911.—Reporter.]
61 Tex. Crim. 590Hopkins v. State (1911)
The opinion states the case.
61 Tex. Crim. 597Clark v. State (1911)
1. —Selling Intoxicating Liquor—Occupation—Local Option—Sufficiency of the Evidence. Where, upon trial of engaging in the occupation of selling intoxicating liquors in local option territory, the evidence showed that during the time alleged in the indictment defendant had no other regular business than selling intoxicating liquors, although he did odd jobs at times and applied to persons for employment, the conviction was sustained. 2. —Same—Indictment—Validity of the Law. Where, in a prosecution of pursuing the business of selling intoxicating liquor in local option territory, the evidence sustained the indictment that the defendant had sold such liquor as a business during the time alleged in said indictment, the contention of defendant that the statute was ineffective and inapplicable for anything that was committed prior to its enactment was untenable; the law being in force at the time of the alleged offense. 3. —Same—Constitutional Law—Local Option—Felony. The Act of the Thirty-first Legislature, page 284, making it a felony to engage in or pursue the occupation or business of selling intoxicating liquor in local option territory is constitutional. Following Fitch v. State, 58 Texas Grim. Rep., 366, and other cases. Davidson, Presiding Judge, dissenting. 4. —Same—Continuance—Want of Materiality of Testimony—Want of Diligence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, defendant’s application for continuance alleged that he expected to show by the testimony of the absent witnesses that he applied for work and did all he could to get it; and also that he kept the whisky for his sick wife, but there was no time alleged during which he applied for work, etc., and the record showed that he ordered two cases of intoxicating liquors a week, there was no error in overruling said application; besides no diligence was shown. 5. —Same—Charge of Court—Requested Charges Refused. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the court’s charge strictly followed the law, the indictment and the evidence, and the requested refused charges were a mere restatement of the main charge, there was no error in refusing same. 6. —Same—Charge of Court—Definition of Occupation and Business. Where the court, in his charge as to whether defendant was engaged in the occupation or business of selling intoxicating liquors in local option territory, submitted the reasonable doubt as to whether defendant was engaged in such business, and made the sales to the parties at the time alleged in the indictment, naming the same, the same was not argumentative or on the weight of the evidence, as it strictly followed the law as alleged in the indictment and the facts supporting it. 7. —Same—Definition of Occupation—Charge of Court. While it was not necessary that the court, in defining occupation or business in a trial for pursuing the occupation of selling intoxicating liquors in local option territory, give such terms the enlarged meaning ordinarily contemplated, yet where he did so, such charge was more onerous on the State than the law requires, and defendant could not complain. 8. —Same—Evidence—Books—Personal Knowledge. Where the express agent testified from his own personal knowledge, independent of his books, as to the shipments of intoxicating liquors to defendant, there was no error in overruling the objection that such books were the best evidence.
61 Tex. Crim. 604Ward v. State (1911)
Carrying Pistol—Evidence—Traveler. Where defendant claimed that he went from San Antonio to Waco and there registered at a hotel, and that the next day on his way to his regular boarding house his pistol accidentally dropped out of his pocket while he was invited into a friend’s house; and the State showed by the hotel keeper that the defendant had not registered, it was reversible error not to permit the defendant to show that since hearing the State’s witness testify as to his not registering at the hotel, he remembered that he told a friend to register for him who had probably not done so; it appearing from the evidence that the defendant had spent a night at said hotel and believed that he had registered. This was material to show that defendant had not fabricated his testimony that he stopped at the hotel.
61 Tex. Crim. 607Lee v. State (1911)
1. —local Option—Evidence—Bill of Exceptions. Where no bill of exceptions is reserved to the evidence objected to, the same can not be considered on appeal. 2. —Same—Sufficiency of the Evidence—Conflict of Testimony. A verdict of the jury will not be set aside because there is a sharp conflict of testimony between the State and the defense, or because the credibility of some of the State’s witnesses had been attacked. ■3.—Same—Newly Discovered Evidence—Want of Diligence. Where no attempt was made by the defendant to procure the testimony of the absent ■ witnesses, of whose presence and whereabouts he was advised, there was no error in overruling his motion for new trial on the ground of newly discovered evidence. 4.—Same—Want of Diligence. Where defendant claimed that since the trial he had located one of the absent witnesses who was present at the time of the alleged sale of the whisky, but showed no diligence in procuring said witness at the trial, there was no error.
61 Tex. Crim. 609Carter v. State (1911)
The opinion states the case.
61 Tex. Crim. 611Davis v. State (1911)
The opinion states the case.
61 Tex. Crim. 616Burnam v. State (1911)
J. W. Patterson, Tried below before Hon, Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary.
61 Tex. Crim. 619Gentry v. State (1911)
1. —Carrying Pistol—Charge of Court—Rearing Attack. Where, upon trial for unlawfully carrying a pistol, the defense’s testimony tended to raise the issue that the defendant had reasonable grounds for ■ fearing an unlawful attack on his person, and the court submitted the proper charge thereon, there was no error. 2. —Same—Charge of Court—Peace Officer. Where, upon trial for unlawfully carrying a pistol, there was evidence for the defense that the'defendant got the pistol for the purpose of taking it to his father who was a constable in the discharge of his duties, and the court properly charged on that issue, there was no error. 3. —Same—Requested Charges. Where the requested charges were substantially embraced in the court’s main charge, there was no error in refusing them. . 4. —Same—Evidence—Irrelevant Matter. Upon trial for unlawfully carrying a pistol, where defendant sought to show that he acted under instruetionsi of his father, who was a peace officer, in carrying the pistol, there was no error in excluding testimony that a certain party had a mixed reputation and would fight. 5. —Same—Disqualification of Jurors—English language—Bill of Exceptions. Where, upon appeal from a conviction of unlawfully carrying a pistol, one of the grounds of the motion for a new trial was that one of the jurors who tried him could neither read nor write the English language, but there was no bill of exceptions, or anything in the record showing this matter, the same could not be considered. 6. —Same—Charge of Court—Defendant’s Belief—Innocent Intention. Where, upon trial for unlawfully carrying a pistol, the court gave instructions which fairly presented the issue that if the defendant believed he had the right to carry his pistol in aiding his fatner who was a peace officer, there was no error; especially where no injury resulted, and the defendant had not requested any written charge. 7. —Same—Sufficiency of the Evidence. Where, upon trial for unlawfully carrying a pistol, the evidence fully supported the conviction, and the court submitted a proper charge to the jury, there was no error.
61 Tex. Crim. 625Barrego v. State (1911)
Appeal from the District Court of Falls. Tried below before the Hon. Richard I. Munroe. 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 parties met in a restaurant and defendant asked prosecutor whether he knew him, and whether prosecutor’^ name was Antonio "Valdez, etc., all of which prosecutor answered in the affirmative. Prosecutor arose from the table to get a glass of water, and after drinking and going to and returning from the door to pour out the water left in the glass, defendant met him and accused him of calling him a rascal in the Justice Court a week previously, a scuffle ensued, and prosecutor dropped his glass; parties interfered and prosecutor ran, and as he passed out of the door defendant shot at him. Prosecutor testified that defendant struck at him in the scuffle, and that he did not strike back, etc. Defendant testified that prosecutor had called him a rascal in the Justice Court, and that defendant was demanding an explanation, when prosecutor struck him, and was trying to hit defendant with a chair when defendant shot at him in self-defense. /
61 Tex. Crim. 628Wilson v. State (1911)
The opinion states the case.
61 Tex. Crim. 635Johnson v. State (1911)
The State’s testimony showed that defendant was under the influence of liquor on the night of the killing; that he approached one Barnes just outside of the church in which services were being conducted, and talked very loud, and was told by Barnes not to talk so loud; that they then got into an altercation and slapped each other with their hands; that Barnes asked defendant to move away from the church and that they would settle it, dragging defendant away with him; that…
61 Tex. Crim. 639Fields v. State (1911)
Burglary—Sufficiency of the Evidence. See opinion for facts held to be sufficient to support a conviction of burglary. [Rehearing denied April 27, 1911.—Reporter.]
61 Tex. Crim. 641Kirksey v. State (1911)
The opinion states the case.
61 Tex. Crim. 647Frazier v. State (1911)
The indictment alleged that the perjury grew out of a prosecution against defendant’s son wherein the latter was charged for malicious and wilful burning of certain personal property, to wit, seed cotton, and the gravamen of the indictment charged that the defendant swore on said trial of his said son that he had not agreed to pay the said owner of the cotton $60 for the pile of cotton in said information alleged to have been burned by his said son, which said statement was…
61 Tex. Crim. 651Kinkead v. State (1911)
The opinion states the case.
61 Tex. Crim. 654Snodgrass v. State (1911)
The opinion states the case.
61 Tex. Crim. 656Jones v. State (1911)
1.—Unlawfully Carrying Pistol—Continuance—Want of Diligence. Where the application for continuance was wholly insufficient as to diligence, there was no error in overruling same. • Z.—Same—Sufficiency of the 'Evidence—Firearms. Where, upon trial of unlawfully carrying a pistol, the defendant claimed that the pistol was not capable of being used as a firearm, and the court properly submitted this issue to the jury, there was no error, and the conviction will not be disturbed.
61 Tex. Crim. 657Sullivan v. State (1911)
Tried below before the Hon. J. Q. Adamson. Appeal from a conviction of keeping a disorderly house for the sale of spirituous, vinous and malt liquors without a license; penalty, a fine of $200 and twenty days confinement in-the county jail. The opinion states the case.
61 Tex. Crim. 662Goldstein v. State (1911)
Tried below before the Hon. R. E. Bratton. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100. The State’s testimony showed that defendant was arrested while he was drawing his pistol on another party on the streets of the town.
61 Tex. Crim. 662Watt v. State (1911)
Petty Theft—Information—Complaint. Where the information and complaint failed to charge a fraudulent taking, the same were fatally defective.
61 Tex. Crim. 663Kelly v. State (1911)
The opinion states the case.