62 Tex. Crim.

Volume 62 — Texas Criminal Reports

156 opinions

62 Tex. Crim. 1Hutcherson v. State (1911)
The opinion states the case.
62 Tex. Crim. 7Roberts v. State (1911)
1. —Statement of Facts—Bills of Exception—Extension of Time. It is mandatory, under the Act of May 1, 1909, that the lower courts, when within the time and when properly called upon, have the power to grant extensions of time for the filing of bills of exception and statement of facts, provided the time of such extensions does not exceed ninety days from adjournment in case a term can not last longer than eight weeks, and if the term lasts longer than eight weeks, from the date of the final judgment, which is the sentence. 2. —Same—Practice—Record Must Show Extensions. Where statement of facts or bills of exception are filed after thirty days from the final judgment, or adjournment for the term, as the case may be in the lower court, the record itself must show that such an extension of time was properly granted by the order of the lower court; and where beyond sixty days a like extension of time shall be shown. 3. —Same—When Cause will be Reversed—Statement of Facts. Where the appellant has not shown, as an affirmative fact, that he was without fault in filing his statement of facts and bills of exception within the time authorized by Iaw; this court will neither reverse the case noi consider a statement of facts that is filed after the time allowed by law. 4. —Same—Case Stated—Affidavits—Statement of Facts. Where, upon appeal from a conviction of murder, the affidavits filed in the Court of Criminal Appeals showed unquestionably that no statement of facts by the appellant or his attorney was ever claimed to have been made out within the proper time and presented to the proper officers, the appellant is not without fault and there was no reversible error. 5. —Same—Practice on Appeal—Affidavits. See first part of .opinion which deprecates the practice of filing affidavits in the Court of Criminal Appeals, touching the question of making out statements of fact and bills of exception in the lower court. 6. —Same—Charge of Court—Practice on Appeal. Where there was no statement of facts in the record, an objection on ac- ' count of a refused charge of the court can not be considered on appeal.
62 Tex. Crim. 11Ex Parte Cramer (1911)
From Harris County. Original application for writ of habeas corpus asking release under a complaint charging a violation of the city ordinance.
62 Tex. Crim. 19Ex Parte Ryan (1911)
Prom Dallas County. Original contempt proceedings to fine respondent for disobedience of notice of appeal from the District Court to the Court of Criminal Appeals. The opinion states the case.
62 Tex. Crim. 22Ex Parte Cook (1911)
The opinion states the case.
62 Tex. Crim. 24Vaughn v. State (1911)
The opinion states the case.
62 Tex. Crim. 28Patton v. State (1911)
The opinion states the case.
62 Tex. Crim. 32Liles v. State (1911)
The opinion states the case.
62 Tex. Crim. 36Whitaker v. State (1911)
1. —Theft—Statement of Facts—County Court. Where the statement of facts, in an appeal from the County Court, was not filed in proper time, the same was stricken out. However, upon proper showing on motion for rehearing, the case was heard on its merits. 2. —Same—Definition of Theft—Under Bailment—Charge of Court. Where defendant was charged with theft under the general statute, and the evidence showed that he came in possession of the alleged property by the consent of the owner without any pretext, and the defendant requested a charge with reference to the bailment statute article 877, Penal Code, which was refused, there was reversible error.
62 Tex. Crim. 39Morgan v. State (1911)
1. —Disorderly House—Information—Repeal of law. Section 25 of the so-called Robertson-Ritzhugh liquor law passed hy the Thirty-first Legislature did not repeal the Act of the Thirtieth Legislature defining the offense, and punishing persons for keeping a disorderly house. 2. —Same—Charge of Court—Defensive Matter—Subterfuge. Where, upon trial of keeping a disorderly house, defendant contended .and introduced evidence that he had no connection with that part of the building in which lewd women, etc., were permitted to enter and conduct themselves in a lascivious manner, and requested a charge thereon, it was reversible error not to submit this phase of the case; and this although such defense may have been a subterfuge.
62 Tex. Crim. 42Mosher v. State (1911)
1. —Keeping Bawdy House—Information—Owner—Lessee—Tenant. Under the law, as amended by the Act of 1907, it is not necessary to allege that the defendant was the owner, lessee, or tenant of the alleged bawdy house in a prosecution for keeping a bawdy house. 2. —Same—Statement of Fact—Bills of Exception—Adjournment of Court. In all criminal cases in the County Court the law permits the court, by order duly entered in term time, to allow only twenty days after adjournment of court for preparing and filing statement of facts and bills of exception, and where in an appeal from the County Court the twenty days had expired before such filing of the statement of facts and bills of exception, the same will be stricken from the record. 3. —Same—Statutes Construed. See opinion for a full discussion of the different Acts of the Legislature with reference to the time allowed for filing statement of facts and bills of exception.
62 Tex. Crim. 46Tucker v. State (1911)
The opinion states the case.
62 Tex. Crim. 47Bazzanno v. State (1911)
Assault to Murder—Statement of Eact—Pauper’s Affidavit—Practice on Appeal. Where, upon appeal from a conviction of assault with intent to murder, the record showed that appellant’s counsel had not exhausted the means provided by law whereby his statement of facts could have been procured, but simply filed a pauper’s affidavit, the case must be affirmed.
62 Tex. Crim. 49Pylee v. State (1911)
Theft under Value of Fifty Dollars—Want of Fraudulent Intent—Charge of Court. Where, upon trial of theft under the value of fifty dollars, the defendant’s testimony showed a want of fraudulent intent, and the defendant submitted requested charges upon this issue which the court refused, there was reversible error.
62 Tex. Crim. 50Green v. State (1911)
Fornication—Information—Complaint. Where, upon trial for fornication, the complaint upon which the information was based merely alleged that affiant has good reason to believe, etc., but did not state that he does believe, the same was fatally defective.
62 Tex. Crim. 51Waltemayer v. State (1911)
The opinion states the case.
62 Tex. Crim. 53Dixon v. State (1911)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial for burglary, defendant was caught almost in the very act of burglary and in possession of the alleged stolen goods, and the evidence showed a breaking of the alleged house, the conviction was sustained. 2. —Same—Motion for New Trial—Charge as a Whole. Where the motion for new trial did not show wherein the charge of the court was erroneous, and the charge was correct on its face, and taken in connection with other portions of the charge, there was no error. 3. —Charge of Court—Recent Possession. Where, upon trial of burglary, the facts did not call for a charge on the subject of possession of recently stolen property, there was no error in the court’s failure to charge thereon. 4. —Same—Argument of Counsel—Bill of Exceptions. Where, upon appeal from a conviction of burglary, the objection to the argument of counsel was not reserved by bill of exceptions, there was no error.
62 Tex. Crim. 55Willingham v. State (1911)
The opinion states the case.
62 Tex. Crim. 58Barr v. State (1911)
The opinion states the case.
62 Tex. Crim. 62Ex Parte Barr (1911)
From Trinity County. Original application for writ of habeas corpus asking release under commitment to penitentiary pending relator’s appeal.
62 Tex. Crim. 63Parvin v. State (1911)
Tried below before the Hon. Thos. L. Blanton. Appeal from a conviction of aggravated assault; penalty, a fine of $250 and two months confinement in the county jail. The recognizance did not require the defendant to appear before the trial court as is provided by law.
62 Tex. Crim. 64Parker v. State (1911)
Rape—Evidence—Third Parties. Where, upon trial of rape, it appeared by the evidence of the defendant that he had not had the alleged intercourse with the prosecutrix, it was reversible _ error not to permit the defendant to show that the prosecutrix had sexual intercourse with a third party; and this although the defendant elicited the fact that prosecutrix gave birth to a child.
62 Tex. Crim. 65Turner v. State (1911)
The opinion states the case.
62 Tex. Crim. 67Chaney v. State (1911)Affirmed
Cbiminal Law (§§ 1092, 1099*) — Appeal-Statement of Facts — Bills of Exceptions — Filing—Time. Laws 1st Called Sess. 1907, c. 7, providing that statements of facts and bills of exceptions must be filed within 20 days after the close of the term at which accused was convicted, applies to all appeals from the county court, so that a statement and bills filed on January 21, 1911, after the adjournment of the term at which accused was convicted on November 28, 1910, was too late. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2847, 2876; Dec. Dig. §§ 1092, 1099.*]
62 Tex. Crim. 67Chaney v. State (1911)
Public Pighting—Statement of Pacts—Bills of Exception. Statements of fact and bills of exception in cases appealed from the County Court must be filed within twenty days after the adjournment of the term.
62 Tex. Crim. 68Hamilton v. State (1911)
Murder—Sufficiency of the Evidence—Conflict of Testimony, Where, upon trial of murder, the evidence sustained a verdict of conviction of murder in the second degree, and the court fairly submitted the issues arising upon the evidence to the'jury, there was no reversible error, although the jury could have found otherwise. See opinion for evidence held sufficient to sustain a conviction of murder in the second degree.
62 Tex. Crim. 71Patton v. State (1911)
1. —Murder—Principals—Presence of Defendant. Where, upon trial of murder, the evidence raised the issue as to whether the defendant by act or words encouraged another who did the shooting, and also raised the issue of self-defence, and the court in his charge to the jury simply instructed them that if the defendant acted as principal as defined by the court to find him gVilty, without applying the law to the facts, and refused defendant’s special instructions thereon that the mere presence of defendant at the time of the homicide would not be sufficient, the same was reversible error. 2. —Same—Charge of Court—Murder in the Second Degree—Self-Defense. Where, upon trial of murder, the evidence raised the issue of self-defence and the court’s charge on murder in the second degree was so framed that defendant could be found guilty of that degree of murder even if he was acting in self-defence, and did not require that the killing must be done with malice nor instruct on the issue of manslaughter or self-defence in connection with said charge, the same was reversible error.
62 Tex. Crim. 73Terry v. State (1911)
1. —Murder—Killing by Poison—Statement of Facts—Filing. Where, upon appeal from a conviction of maliciously mingling strychnine with coffee with intent to kill, the record showed no diligence on the part of appellant or his counsel to prepare a statement of facts and bills of exception and file them in the proper time, or that such statement of facts was ever presented to the trial judge for his action, the same will be stricken from the record on the motion of the State. 2. —Same—Charge of Court—Party Injured. Where the indictment charged that the poison was mingled and mixed ■with the coffee with the intent of the defendant to injure two persons named in the indictment, and the court’s charge in submitting the question of intent named only one of said injured parties, there was no error. Following Scott v. State, 46 Texas Crim. Rep., 305, and other cases.
62 Tex. Crim. 75Dixon v. State (1911)
The opinion states the case.
62 Tex. Crim. 77Black v. State (1911)
1. —Violating Stock Law—Recognizance. Where the recognizance recited that the defendant was charged with the offense of violating the stock law, the same was fatally defective; but inasmuch as a proper recognizance was filed, the dismissal will be set aside. 2. —Same—Repeal of Law—Penalty—Statutes Construed. The Act of April 3, 1907, wit]; reference to the stock law, did not repeal the Act of 1897 on the same subject, inasmuch as the offense charged and the penalty are the same in both Acts; besides defendant received the lowest penalty of the law. 3. —Same—Character of Offense—Evidence—Charge of Court. On an indictment charging the defendant with unlawfully and willfully failing and refusing to keep up certain live stock and permitting same to run at large, etc., it was permissible to prove that the alleged animal was not kept up by the defendant and that it was permitted by him to run at large from time to time, and there was no error in not confining the State to one occasion.
62 Tex. Crim. 81Greer v. State (1911)
The opinion states the case.
62 Tex. Crim. 84Harden v. State (1911)
1.—Keeping Disorderly House—Information—Complaint. Where the complaint charged one offense and the information another distinct offense, the prosecution must be dismissed, but where upon rehearing it was shown that the clerk had made a mistake in copying the information, and that there was a proper information filed in the case, the appeal will be reinstated. 2. —Same—Insufficiency of the Evidence. Where, upon appeal from a conviction of keeping a disorderly house by reason of the fact that intoxicating liquors were sold therein, the evidence showed that the defendant was not connected in any way with the sale of intoxicating liquors as alleged, the conviction cannot be sustained. 3. —Same—Recognizance. Where the recognizance failed to recite the amount of the fine or punishment assessed against the appellant, and failed to conclude with the words “in this case” the same was insufficient. .However a proper recognizance was filed and the case reinstated.
62 Tex. Crim. 88Coffman v. State (1911)
The opinion states the case.
62 Tex. Crim. 96Looper v. State (1911)
The opinion states the case.
62 Tex. Crim. 98Griffin v. State (1911)
Tried below before the Hon. J. B. Haynes. • • ' Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail. The record showed that the trial court adjourned on November 5, 1910, and that the statement of facts was filed by the clerk of the trial court on December 5, 1910.
62 Tex. Crim. 98Looper v. State (1911)
The opinion states the case.
62 Tex. Crim. 99Leggett v. State (1911)
The opinion states the case.
62 Tex. Crim. 105Hooper v. State (1911)
1. —Carrying Pistol—Special Judge—County Court. Article 1132b, Revised Statutes, provides for the election of special judges of the County Court. 2. —Same—Waiver of Jury—Intent—Presumption. Where, upon trial of unlawfully carrying a pistol, defendant waived a jury, the court must presume that the trial judge considered all the theories of the defense, including that of intent.
62 Tex. Crim. 106Jackson v. State (1911)
The opinion states the case.
62 Tex. Crim. 108Grable v. State (1911)
1. —Butcher’s Bond—Indictment—Transfer. Where, upon appeal from a conviction of failing to give bond as a butcher, etc., the record showed a proper transfer of the indictment from the District to the County Court, there was no error. 2. —Same—Repeal—Statutes Construed. Article 892 of the Penal Code, under which defendant was prosecuted for carrying on the business and occupation of a butcher, etc., without having filed a bond, was not repealed by the Act of February 20, 1909.
62 Tex. Crim. 110Mayo v. State (1911)
1. —Local Option—Indictment—Exceptions in Law. The indictment in a prosecution for a violation of the local option law need' not allege the exceptions made by the law and negative them. 2. —Same—Elections—Statutes Construed—Felony. Where the sale of intoxicating liquors in local option territory was made subsequent to the second election and declaration of the result, both elections resulting in prohibition, the prosecution was properly based on the second election making the sale a felony under the law. 3. —Same—Evidence—Leading Question—Unwilling Witness. Where the witness was an unwilling one and extremely hostile to the State, there was no error in permitting State’s counsel to ask leading questions. Following Taylor v. State, 22 Texas Grim. App., 529, and' other cases, 4. —Same—Bills of Exception—Practice on Appeal. Where the matter complained of was not properly reserved by bills of exception, the same could not be considered on appeal. 5. —Same—Charge of Court. Upon trial of a violation of the local option law there was no error in refusing a requested instruction to find defendant not guilty. 6. —Same—Charge of Court—Requested Charge. Where a charge is marked given there was nothing to revise on appeal upon this ground. 7. —Same—Charge of Court—Whisky—Intoxicating Liquor. Whisky is an intoxicating liquor, and the court may so instruct the jury. 8. —Same—Charge of Court—Sale—Words and Phrases. Where the court charged correctly on the definition of a sale, and the words “three quarts” when considered in connection with the whole charge referred to the word “whisky” there was no error.
62 Tex. Crim. 113Ex Parte Carter (1911)
The opinion states the case.
62 Tex. Crim. 114Hawthorn v. State (1911)
1. —Burglary—Election by State. Where the defendant was indicted upon two counts, one charging burglary of a private residence and the other burglary in the ordinary form, and the court submitted both counts, the jury convicting defendant upon the first count, there was no error in not requiring the State to elect. 2. —Same—Charge of Court—Reasonable Doubt. Where, upon trial of burglary of a private residence and ordinary burglary, the evidence excluded the idea of a daytime burglary and the court charged the jury upon both counts, there was no error in refusing a requested charge that if the jury entertained a reasonable doubt as to whether the burglary was committed in the daytime- or at night, to find the defendant guilty of daytime burglary. 3. —Same—Charge of Court—Explanation—Recent Possession. Where, upon trial of burglary of a private residence, etc., the explanation given by defendant at the time he was first charged with the crime and that given by him on the witness stand was practically identical to the effect that he purchased the alleged stolen goods from another, and the court charged the jury that if they believed the defendant bought said goods or if they had a reasonable doubt thereof, to acquit him, there was no ■ error in, refusing a special instruction upon this issue which was correct under precedent. 4. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence was sufficient to sustain the conviction, there was no error.
62 Tex. Crim. 117Harwell v. State (1911)
The opinion states the case.
62 Tex. Crim. 118McLain v. State (1911)
1. —Murder—Indictment. Where upon trial of murder, the indictment followed approved form there was no error. Following Ringgold v. State, 54 Texas Grim. Rep., 566. 2. —Same—Evidence—M.oral Turpitude. Upon trial of murder there was no error in permitting the State to ask the defendant, while he was on the witness stand, if he had ever been convicted of a felony. 3. —Same—Evidence—Contradicting Witness. Upon trial of murder there was no error in permitting the State, on cross-examination of defendant’s witness, to show that a short time prior to the homicide the defendant had struck deceased with a rock. 4. —Same—Sufficiency of the Evidence. Where upon trial of murder the evidence was sufficient to support a conviction of murder in the second degree, there was no error.
62 Tex. Crim. 119Moore v. State (1911)
Carrying Pistol—Statement of Pacts—County Court. Where, upon appeal from a misdemeanor conviction, it appeared from the record that there was no order authorizing the filing of the statement of facts after adjournment, and the same was filed after adjournment, and not contained in the record, etc., it must be stricken from the record on motion of the State.
62 Tex. Crim. 120Morgan v. State (1911)
1. —Theft—Case Stated—Insufficiency of Evidence. See opinion which seriously doubts that the evidence makes a case against the defendant for theft. 2. —Same—Evidence—Charge of Court—Other Offenses. Where, upon trial of theft, defendant was not found in possession of the alleged stolen property, testimony as to goods found in the possession of a third party was inadmissible; defendant not having been connected therewith; especially where the court charged the jury with reference to other thefts. 3. —Same—Evidence—Opinion of Witness—Hearsay. Upon trial of theft testimony with reference to the opinion of witness as to the possession of a third party of the alleged stolen goods and other goods was inadmissible, it not having been shown that defendant was connected therewith. 4. —Same—Opinion of Witness—Hearsay. Upon trial of theft, testimony as to the opinion of witnesses with reference as to how certain goods got into the possession of a third party with which defendant was not shown to have been connected was inadmissible. 5.—Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Where, upon trial of theft, during the argument of defendant’s counsel, the county attorney interrupted him by saying that the defendant had not testified in his own behalf, etc., there was reversible error.
62 Tex. Crim. 124Smith v. State (1911)
The opinion states the case.
62 Tex. Crim. 126McCullough v. State (1911)
Tried below before the Hon. B. G. Neighbors, Special Judge. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. The opinion states the case.
62 Tex. Crim. 129Owens v. State (1911)
Aggravated Assault—Accident—Want of Criminal Intent. Where, upon trial of aggravated assault, there was evidence that the transaction was accidental and not intentional on the part of the defendant, and a requested charge was refused on this phase of the case, the same was reversible error.
62 Tex. Crim. 130Drake v. State (1911)
The opinion states the case.
62 Tex. Crim. 132Williamson v. State (1911)
Local Option—Insufficiency of the Evidence—Misconduct of Jury. Where, upon trial of a violation of the local option law, the testimony as to the identity of the defendant was not shown very clearly, and the jury discussed facts not in evidence in arriving at the verdict, there was reversible error.
62 Tex. Crim. 133Ex Parte Sperger (1911)
The opinion states the case.
62 Tex. Crim. 138Anthony v. State (1910)
The opinion states the case.
62 Tex. Crim. 177Parshall v. State (1911)
The opinion states the case.
62 Tex. Crim. 231Comegys v. State (1911)
1. —Assault to Murder—Charge of Court—Self-Defense—Force. Where, upon trial of assault to murder, the evidence showed that defendant either made an unprovoked assault on the party injured, or that the latter was advancing on him with a drawn pistol, it was reversible error in the court’s charge to instruct the jury that the defendant was justified in using all necessary force to protect his life or person, etc., especially where the defendant requested a proper charge thereon. 2. —Same—Evidence—Irrelevant Testimony. Where, upon trial of assault to murder, it appeared that the trouble grew out of certain family relations between defendant and deceased, it was error to permit the State to introduce testimony as to whether or not defendant called upon the wife of the deceased some two or three years prior to the difficulty, as such circumstances would not tend to show the state of defendant’s mind at the time of the homicide. 3. —Same—Evidence—Other Offenses. Upon trial of assault with intent to murder it was improper to permit the State to show that defendant had pleaded guilty to carrying a pistol on the occasion he shot at the prosecutor and to permit State’s counsel to discuss this testimony. 4. —Same—Charge of Court—Reasonable Doubt—Weight of Evidence. Upon trial of assault to murder it was improper for the court, in charging on reasonable doubt and presumption of innocence, to instruct the jury at the conclusion of his charge that if the evidence satisfied their minds beyond a reasonable doubt of the guilt of the defendant, to convict him.
62 Tex. Crim. 235Harris v. State (1911)
1. —Murder—Practice on Appeal. Where the case is reversed on other grounds the court as a rule Avill not discuss the sufficiency or insufficiency of the evidence. 2. —Same—Assignments of Error—Practice on Appeal. This court docs not pass upon assignments of error except when they are based upon bills of exception or grounds of a motion for new trial. 3. —Same—Evidence—Bills of Exception. On trial of murder, if the testimony sufficiently shorved that the articles found upon the burned premises, where the alleged homicide took place, were the property of the husband of the deceased and were found recently thereafter in the possession of the defendant, the same Avas admissible, although several searches Avere made; but AA'here the bills of exception did not sufficiently show these matters, the court could not intelligently pass thereon. 4. —Same—Evidence—Experimental Evidence. Upon trial of murder it Avas error to permit a State’s Avitness to testify to an experiment he made as„to how the homicide occurred, which Avas based on speculative and hypothetical theories, and not established on any fact upon Avhicli such experiment could have been' made. 5. —Same—Conduct of District Attorney. Upon trial of murder, Avhere the court properly sustained an objection to a question of the State’s attorney on cross-examination of the defendant, it Avas improper on part of State’s counsel to persist in his question thereafter. 6. —Same—Evidence—Shorthand Facts. Where, upon trial of murder, the evidence shoAved that the deceased and her husband Avere probably murdered in their own house and the house burned down and their charred remains found thereafter, and some of the State’s witnesses in testifying to a certain vest found in possession of defendant stated that it resembled a vest worn by the said husband of deceased, etc., but were unwilling to swear that it was the identical vest that they had seen him wear, etc., there was no error in permitting State’s counsel to ask the witnesses whether in their best judgment and their opinion it was the vest that they saw said husband wear in his lifetime, which they answered in the affirmative. This was a shorthand rendering of the facts and went more to the weight than to the admissibility of the testimony. 7.—Same—Evidence—Stains on Clothing. Where, upon trial of murder, the State’s witness testified that her husband and the husband of deceased wore shirts made out of the same kind of cloth, and that when her husband perspired such perspiration made a stain similar to that which was on the domestic around the truss found with the defendant and introduced in evidence, it was necessary to show the time when this cloth was made into such shirt and that the husband of the deceased had worn the shirt so made for him out of said cloth.
62 Tex. Crim. 242Bell v. State (1911)
Occupation—Selling Intoxicating liquors—Local Option—Negative. Upon trial for pursuing the occupation of selling intoxicating liquors in local option territory, where the State showed that local option was in force; that defendant had made sales of intoxicating liquors and was pursuing that business or occupation, it made a prima facie case, and it was not necessary or incumbent upon the State to show that defendant did not have a license'to'sell on prescription, etc., or to show any of these negative matters; as this was a matter of defense, and if true peculiarly within the knowledge of the defendant and incumbent on him to prove. Following Duke v. State, 42 Texas, 455, and other cases. Davidson, Presiding Judge, dissenting.
62 Tex. Crim. 258Dozier v. State (1911)
The opinion states the case.
62 Tex. Crim. 270Cole v. State (1911)
The opinion states the case. Leaving out formal parts, the indictment charged that Maria Cole, on or about the 14th day of October, one thousand nine hundred and ten, and anterior to the presentment of this indictment, in the county of Burleson and State of Texas, did then and there unlawfully make an assault in and upon Jim Hadley, with the intent then and there of maiming the said Jim Hadley, by then and there attempting to cut off the penis of the said Jim Hadley, against…
62 Tex. Crim. 272Tilmeyer v. State (1911)
1. —Murder—Continuance—Bill of Exceptions—Qualification. Where, upon trial of murder, defendant’s application for continuance stated that he was sick and unable to proceed with the trial, but the bill of exceptions as qualified by the judge showed that the defendant’s physicians stated that the defendant could go to trial without injury to his health, there was no error. 2. —Same—Charge of Court. Where the requested charge refused by the court was contained in the main charge there was no error. 3. —Same—Charge of Court—Threats—Self-Defense. Where, upon trial of murder, the court’s charge on the question of threats and self-defense were in accordance with the opinion of the court in the former appeal in the case, there was no error. 4. —Same—Charge of Court—Erasures. Where it appeared on appeal from a conviction of murder that the erasures in the court’s charge could not have misled the jury, there was no error. 5. —Same—Charge of Court—Murder in the Second Degree. Where, upon appeal from a conviction of murder in the second degree, the exception to the court’s charge was of a general character and pointed out no error, the same could not be considered; besides under article 723 the record showed that there was no such error which was calculated to injure the rights of the defendant. 6. —Same—Sufficiency of the Evidence. Where, upon appeal from a conviction of murder in the second degree, the same was supported by the evidence, there was no error. 7. —Same—Assignments of Error—Practice on Appeal. Assignments of error- can not be considered on appeal, and all matters must be presented by motion for new trial, or they will not be considered on appeal.
62 Tex. Crim. 276Germany v. State (1911)
1.—Illegal Practice of Medicine—Constitutional Law—Masseur. The Act of the Thirtieth Legislature, providing that it shall be unlawful for any person to practice medicine in any of its branches, etc., who has not obtained a certificate from the State Medical Board, etc., is constitutional, and said Act includes masseur treatment when practiced for pay, and it is no defense that the law made no provision for medical examiners for the practice of masseur treatment, and there was no error in not admitting evidence to this effect. 2. —Same—Evidence. On trial of illegally practicing medicine there was no error in admitting in evidence the fact that defendant had treated others than the person alleged in the indictment. 3. —Same—Evidence—Masseur Treatment—Massage. Upon trial of illegally practicing medicine there was no error in admitting testimony by qualified physicians that they were familiar with the sphere of labor of a masseur, such as is exempted under the operation of the medical practice Act, and in permitting them to testify that the sphere was to work under the directions of a physician, and that one who is not well up on anatomy, physical diagnosis, etc., is not capable of directing the use of massage. 4. —Same—Practice in District and County Court—Reading law. Where it is not shown on appeal what was in the briefs of another case which were read to the court, the same could not be considered on appeal; besides appellant did not object to their being read in the presence of the jury. 5. —Same—Charge of Court—Defining a Physician. Where the definition given of a physician was in accordance with precedent there was no error; and where one treats or offers to treat mental or physical disease by any system or method and charge therefor, and who has not obtained authority to do so from the Medical Board he is amenable to the law. 6. —Same—Complaint—Information. Where, upon appeal, it was not shown that any material change was made in the information, and the record showed that the information was based upon a complaint in the record, there was no error; besides it was wholly unnecessary to allege or make mention of the affidavit in the information which was filed with it.
62 Tex. Crim. 281Smith v. State (1911)
1. —Aggravated Assault—Charge of Court—Misdemeanor—Practice in County Court. Where the defendant made no exception to the court’s charge in the County Court at the time of the trial, and offered no special instruction, there was no error; besides the bills of exception and statements of fact were not filed in time. 2. —Same—Misconduct of Jury—Bill of Exceptions. Where, upon appeal from a conviction of aggravated assault, the record showed that the motion for new trial with reference to the misconduct of the jury was not sworn to or accompanied by any affidavit and not filed in time, but the motion was nevertheless heard by the lower court, who found that there was no misconduct, there was no error. 3.—Same—Sufficiency of the Evidence. Where the conviction for aggravated assault was sustained by the evidence there was no error. [Rehearing denied May 10, 1911.—Reporter.]
62 Tex. Crim. 284Johnson v. State (1911)
The opinion states the case.
62 Tex. Crim. 288Hughes v. State (1911)
1.—Assault to Murder—Recognizance—Reinstatement. Where, upon appeal from a conviction of aggravated assault, the recognizance failed to show the punishment assessed, or the court in which the defend-' ant was tried' and before which he obligates himself to appear, the same must be dismissed on motion of the State. However, where the appellant filed a proper recognizance, the case was reinstated. Í2.—Same—Charge of Court—Deadly Weapon—Serious Bodily Injury. Where, upon trial of assault to murder, the defendant being convicted of aggravated assault, the testimony showed that serious bodily injury was inflicted upon the person assaulted, there was no error in the court’s failure to properly define a deadly weapon. 3. —Same—Charge of Court—Aggravated Assault. Where the party was convicted of aggravated assault he could not complain of the court’s refusal to submit a requested charge on aggravated assault; besides the charge of the court was sufficient. 4. —Same—Identity of Defendant—Evidence—Declaration of Third Party. Upon trial of assault with intent to murder where the defendant’s identity was an issue, testimony as to what the father of the defendant had said with reference thereto in the absence of the defendant was inadmissible. 5. —Same—Conduct of District Attorney—Immunity of Witness. Where, upon trial of assault to murder, the State’s counsel had not filed in the court an unconditional agreement not to prosecute a witness, he could not compel him to testify whether he or his brother committed the assault, and a conditional agreement without the approval.of the court was insufficient, and it was reversible error for State’s counsel to insist before the court and jury that the witness must answer the questions. [Rehearing denied May 10, 1911.—Reporter.]
62 Tex. Crim. 294Thacker v. State (1911)
The opinion states the case.
62 Tex. Crim. 297Hoyle v. State (1911)
1. —Aggravated Assault—Recognizance—Reinstatement. Where appellant’s recognizance did not show that he had heen convicted of any offense in the court below, the appeal must be dismissed; however, appellant having filed a proper recognizance, the case may be heard on its merits. 2. —Same—Charge of Court—Requested Charges—Practice on Appeal. In trials of misdemeanors it is necessary in the event the court’s charge is objected to, to except thereto and request and present a special instruction, and if this is not done the charge of the court below can not be reviewed on appeal. 3.—Same—Sufficiency of the Evidence. Where the evidence sustained a conviction for an aggravated assault, there was no error.
62 Tex. Crim. 299Craig v. State (1911)
The opinion states the case.
62 Tex. Crim. 302Purvis v. State (1911)
The opinion states the case.
62 Tex. Crim. 306Stanley v. State (1911)
1. —Murder—Charge of Court—Self-Defense—Threats. Where, upon trial of murder, the evidence showed threats by the defendant, but that at the time of the homicide he did no act which could induce the deceased to act on said threats, and that the deceased brought on the difficulty, it was reversible error not to submit the charge requested by the defendant that he was not deprived of self-defense against an attack or threatened attack by the deceased. 2. —Same—Evidence—Other Offense. Where, upon trial of murder, the defendant on cross-examination testified that he had been indicted in another homicide, but acquitted, there was no error in refusing to let defendant further testify as to the details of the other homicide. 3. —Same—Charge of Court—Impeaching Testimony. Where, upon trial of murder, the State brought out the fact that defendant was indicted for another homicide, the court should have limited such testimony to purposes of impeachment. 4. —Same—Charge of Court—Manslaughter. See opinion for facts which required a charge on manslaughter.
62 Tex. Crim. 309Rushing v. State (1911)
The opinion states the case.
62 Tex. Crim. 311Vickery v. State (1911)
The opinion states the case.
62 Tex. Crim. 316Lucas v. State (1911)
1. —Incest—Evidence—Bills of Exception. Where no objection was urged to the testimony during the trial and exceptions reserved thereto, the same could not be considered on appeal. 2. —Same—Sufficiency of the Evidence. Where, upon trial of incest, the evidence supported the conviction there was no error.
62 Tex. Crim. 317Diaz v. State (1911)
The opinion states the case.
62 Tex. Crim. 321Dilliard v. State (1911)
1. —Aggravated Assault—Statement of Facts. Where the statement of facts and bills of exception were filed more than twenty days after the adjournment of the County Court, the same must be stricken from the record on motion of the State. 2. —Same—Information—Officer. Where the information alleged that the defendant made an assault upon an officer, naming him, while in the discharge of his official duty, the same was sufficient to charge an aggravated assault.
62 Tex. Crim. 322Williams v. State (1911)
The opinion states the case.
62 Tex. Crim. 323Barclay v. State (1911)
The opinion states the case.
62 Tex. Crim. 326Moore v. State (1911)
The opinion states the case.
62 Tex. Crim. 336Henzen v. State (1911)
The opinion states the case.
62 Tex. Crim. 345Green v. State (1911)
1. —local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence supported the conviction, there was no error. 2. —Same—Indictment—Order of Commissioners Court—Exceptions. It is not necessary that the indictment allege that the order of the Commissioners’ Court negative the exceptions in the statute wherein such liquors may be sold; as the order for the prohibition election need not set out these exceptions. Following Frickie v. State, 39 Texas Crim. Rep., 254, and other cases. 3. —Same—Indictment—law in Force and Effect. Where the indictment charged that the sale took place after an election had been held and the result declared, etc., the contention that the indictment did not show that the alleged sale was made after the said election had been declared is untenable. 4. —Same—Indictment—J urisdiction—V enue. Upon trial for a violation of the local option law, it was not necessary to allege in the indictment the place where said sale was made, other than that it was in the county of the prosecution. Following Wesley v. State, 57 Texas Crim. Rep., 277, and other cases. 5. —Same—Continuance—Diligence—Immateriality of Testimony. Where the application for continuance did not show proper diligence, and the testimony set out therein to the effect that other people had tried to get whisky from defendant and had failed, being inadmissible, there was no error. 6. —Same—Evidence—Intoxicating liquor—Whisky. Where, upon trial for a violation of the local option law, the defendant was given full opportunity to cross-examine a State’s witness with reference to the intoxicating qualities of the liquor sold, and the witness had testified that it was whisky, there was no error in not permitting defendant’s counsel to further cross-examine the witness with reference to the character of whisky the witness sold while he was in the saloon business. 7. —Same—Evidence—Moral Turpitude. Where, upon cross-examination of the State’s witness, the defendant brought out the fact that the witness had been indicted some years previously for murder, there was no error in permitting the State to show that the witness was acquitted of said charge. 8. —Same—Evidence—leading Question. Where the questions asked by the State merely sum up the testimony delivered by the witness on defendant’s cross-examination, and the bill of exceptions did not show that these questions were improperly asked or answered, or their connection shown with other testimony in the case, there was no error. Following Long v. State, 58 Texas Crim. Rep., 209. 9. —Same—Evidence—Moral Turpitude. It is always permissible to impeach a witness in a criminal case by showing by him that he has been indicted or convicted for a felony, or indicted and convicted for any misdemeanor showing moral turpitude; and where the bill of exceptions was so qualified that the questions and answers with reference to offenses were limited to felony indictments,- etc., there was no error. 10. —Same—Charge of Court—Gift. Where, upon trial for a violation of the local option law, the court instructed the jury that the gift of the intoxicating liquor would not be a violation of the law, there was no error in refusing a special requested charge on this phase of the case, and which embodied other matters which did not announce any correct principle of law applicable to the case. 11. —Same—Argument of Counsel—Bill of Exceptions. Where the objection to the argument of State’s counsel was not presented by bill of exceptions, the same could not be considered on appeal. 12. —Same—Charge of Court—Law in Force—Harmless Error. Where, upon trial for a violation of the local option law, the evidence showed conclusively that the sale occurred after the local option law went into force, there was nothing in the objection that the court inadvertently stated the date the law went into effect was on July 8, 1910, instead of July 15, 1910, the sale having taken place on October 6, 1910. Nor was it error to reject court orders of a former election. [Behearing denied May 17, 1911.—Beporter.]
62 Tex. Crim. 352Deary v. State (1911)
1. —Fornication—Remarks by Judge. Where the judge during the trial left the bench and went around to the witness and addressed a question to the witness which indicated to the jury the judge’s conclusion or belief about the testimony, the same was reversible error. 2. —Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Where the State’s counsel alluded to the defendant’s failure to testify, and was corrected by the court, and then stated to the jury that defendant had placed no witnesses on.the stand, the same was reversible error. 3. —Same—Charge of Court—Accomplice Testimony. Where the court failed to charge the jury that they must believe the testimony of an accomplice to be true, etc., when defendant had submitted proper instructions which were refused, the case being a misdemeanor, the same was reversible error.
62 Tex. Crim. 354Paris v. State (1911)
1. —local Option—Insufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence failed to show any sale by the defendant, the conviction could not be sustained. 2. —Same—Argument of Counsel. See opinion for improper argument of counsel.
62 Tex. Crim. 356Jones v. State (1911)
The opinion states the case.
62 Tex. Crim. 357Arrington v. State (1911)
1.—Receiving Stolen Property—Bills of Exception—Extension. Where the order extending the time for filing a statement of facts did not include the hills of exception, the latter could' not be considered on appeal. Í2.—Same—Insufficiency of the Evidence—Venue. Where, upon trial for receiving and concealing a stolen horse, there was no evidence that the defendant had received and concealed the alleged horse in the county of the prosecution, the conviction could not be sustained.
62 Tex. Crim. 358McGee v. State (1911)
The opinion states the case.
62 Tex. Crim. 360Pool v. State (1911)
The opinion states the case.
62 Tex. Crim. 361Vela v. State (1911)
1. —Murder—Corpus Delicti—Sufficiency of the Evidence. Where, upon trial of murder, the evidence did not even suggest that deceased died from any other cause than that of the criminal act of the defendant, the conviction is sustained. 2. —game—Charge of Court—Corpus Delicti—Cause of Death. Where the court instructed the jury that the State must prove by competent testimony beyond a reasonable doubt not only that the. defendant shot the deceased, but that the shot was the actual cause of his death, there was no error. Following Thompson v. State, 38 Texas Grim. App., 335, and other cases. 3. —Same—Circumstantial Evidence—Charge of Court. Where the evidence was positive and direct there was no error in the court’s failure to charge on circumstantial evidence. 4. —Same—Charge of Court—Self-Defense. Where the court properly submitted the issue of self-defense in his main charge, and also submitted special instructions requested by the defendant covering the various phases of the testimony, there was no error in refusing other instructions relating to the same matter. 5. —Same—Continuance—Impeaching Testimony. Where the absent testimony alleged in defendant’s application for continuance was of an impeaching character, there was no error. 6. —Same—Charge of Court—General Exceptions. Where the complaint to the court’s charge is of a general character, and the error is not pointed out, the same can not be considered on appeal. 7. —Same—Charge of Court—Practice on Appeal. Where no objection was made to the court’s charge in the court below or error assigned in the motion for new trial, the same can not be considered on appeal.
62 Tex. Crim. 370Wheeler v. State (1911)
The opinion states the case.
62 Tex. Crim. 374Boyce v. State (1911)
The opinion states the case.
62 Tex. Crim. 378Neece v. State (1911)
The opinion states the case.
62 Tex. Crim. 380Jordan v. State (1911)
1. —Murder—Murder in the First Degree—Charge of Court. , Where defendant was acquitted of murder in the first degree, it is unnecessary to pass on the court’s charge on that degree of murder. 2. —Same—Charge of Court—Practice on Appeal. Where, upon appeal from a conviction of murder in the second degree, no specific defects were pointed out in the court’s charge on murder in the second degree, the same could not be reviewed. 3. —Same—Charge of Court—Manslaughter—Provocation. Where, upon trial of murder, the defense showed insulting conduct to a female relative, and the court instructed the jury that the provocation must arise at the time of the commission of the offense, and that the passion must not be the result of a former provocation, but thereafter in his charge gave an appropriate instruction on the question of insulting conduct towards the female relative as adequate cause, and besides submitted the special instructions requested by the defense upon this issue, there was no reversible error, although the first part of the charge would have been error if standing alone. 4. —Same—Murder in the Second Degree—Charge of Court. Where, upon trial of murder, the defense relied upon insulting conduct to female relative, but there was evidence that the defendant had invited the deceased to his house for improper purposes or for improper liberties with his family, etc., and it became a question for the jury to decide as to the condition of appellant’s mind at the time of the homicide, the court properly instructed on murder in the second degree. 5. —Same—Witnesses—Under Rule—Practice. Upon trial of murder, where the court permitted the district attorney to talk with his witnesses for the purpose of arranging the order of introducing the State’s testimony, while the witnesses were under the rule, there was no error. 6. —Same—Argument of Counsel. Where, upon., trial of murder, State’s counsel used argument to which the defendant’s counsel objected, and the court thereupon promptly stopped counsel from speaking and instructed the jury to disregard same, and the matter was not of sufficient importance to require reversal, there was no error. 7.—Same—Charge of Court—Repetition. Where, upon trial of murder, the court’s charge on manslaughter was full and sufficient, the complaint that it contained repetition was not of such harmful character as to require reversal.
62 Tex. Crim. 388Jordan v. State (1911)
The opinion states the case.
62 Tex. Crim. 392Manley v. State (1911)
1. —Murder—Change of Venue—Statutes Construed—Contest. Where, upon trial of murder, defendant made application for' change of venue under section 133 of chapter 104 of the Act of the Twenty-Ninth Legislature, stating that he was a member of the military forces of this State and. of the National Guard; that he was indicted for murder and that the alleged offense was committed .while he was performing a military duty required of him under said Act; that there existed so great a prejudice against him in the county of the prosecution tha.t he could not obtain a fair and impartial trial, etc., which application was supported by the affidavit of two credible persons, a change of venue should have been granted, and a contest over the means of knowledge of compurgators of said application was not authorized under said Act. 2. —Same—Continuance. Where the cause was reversed upon other grounds it became unnecessary to pass on defendant’s application for continuance, 3. —Same—Indictment—Precedent. Where the indictment for murder was according to approved precedent, there was no error in overruling a motion to quash. 4. —Same—Jurisdiction—Civil Authorities. Under the military Act of the Twenty-Ninth Legislature, officers and soldiers accused of crime, etc., against the person or property of any citizen of the State are to be tried by the civil courts. 5. —Same—Evidence—Validity of Order—Calling Out National Guard. Where, upon trial pf murder, the evidence showed that the defendant was a member of the National Guard and on military duty under orders of his superiors- at the time the' alleged offense was committed, and that he was carrying out the orders of his superiors in enclosing and guarding a portion of the public street of a city during a public demonstration receiving the President of the United States, it was error to admit testimony questioning the validity of the order calling out said National Guard, and the mayor’s right to order the closing of said public street, as defendant was reqúired under the law to obey the orders of his superior officers, and it was not shown that he was in possession of any facts that would put him on inquiry. 6. —Same—Argument of Counsel—Reading law to Court—Pageant. Upon trial of murder, where the evidence showed that the defendant was a member of the National Guard on military duty under the orders of his superior officers to maintain order during a public pageant in a city when the alleged offense was committed, it was error to permit the State’s counsel to read to the court and jury an excerpt from a decision of the court in a civil case, governing the rights of pedestrians and others on public streets. 7. —Same—Evidence—Dying Declarations—Opinion of Witness. Upon trial of murder it was error to admit that part of the written dying declarations of the deceased to the effect that the defendant stabbed him without any word or act of the deceased that could be regarded as hostile or a provocation. 8. —Same—Evidence—General Reputation for Truth and Peace. Upon trial of murder the court should not have limited testimony supporting the general reputation of defendant for truth and peace, the State not having admitted defendant’s said reputation. 9. —Same—Evidence—Military Orders—Officers and Soldiers. Upon trial of murder, where the evidence showed that the defendant was a member of the National State Guard at the time of the alleged offense, guarding a certain portion of a closed street in a city, under orders of superior officers, there was no error in not admitting testimony of such superior officer to the effect that he had instructed the defendant to keep the people out of said enclosure at all hazards, as this would not authorize defendant to take human life. 10. —Same—Duties of National Guard—Army Regulation. The duties of the National Guard are defined in the military Act of the Twenty-Ninth Legislature, and upon trial of murder, where the evidence showed that the defendant was a member of the National Guard at the time of the alleged offense, there was no error in not permitting the United States Army Regulations to be introduced in evidence. 11. —Same—Evidence—National Guard. Upon trial of murder, where the evidence showed that the defendant was a member of the National Guard in the discharge of his duty under orders of his superior, there was no error in not admitting testimony that the State militia is a part of the United States soldiery, as this was not material to any issue in this case, 12.—Same—Military Duty—Militiamen. In times^ of peace a militiaman has no more right to take human life than any other officer or citizen, nor is he deprived of any right of any other officer or citizen under the Constitution and laws of this State.
62 Tex. Crim. 400Barfield v. State (1911)
1. —Gaming—Statement of Facts—County Court—Stenographer. In County Court cases, where there is no court stenographer, the County Court has no power or authority to grant a longer time than twenty days within which to file a statement of facts and hills of exception; and where this is done the same can not be considered on appeal. 2. —Same—Constitutional law—Information. Article 388f of the Act of the Thirtieth Legislature, upon the subject of gaming, is not unconstitutional, and is neither in violation of article 3, section 35, of the Constitution of Texas, nor article 1, section 3, of said Constitution, nor article 4, section 2, nor article 14, section 1, of the Constitution of the United States, and an information which conformed to said article 388f in alleging the offense is sufficient. 3. —Same—Requested Charges. In the absence of a statement of facts and bills of exception, excluded special charges can not be considered on appeal.
62 Tex. Crim. 402Burton v. State (1911)
1. —Murder—Evidence—Confessions—Warning. Where, upon trial for murder, it did not appear from the face of the alleged written confession that the defendant was warned by the person to whom the confession was made, the same was inadmissible in evidence. 2. —Same—Evidence—Confessions—Defendant as a Witness. Where the alleged written confession did not show that it was made to the person who gave the warning, and defendant’s testimony on the stand was different in many respects from the alleged confession, the error of admitting the alleged written confession was not thereby cured. 3. —Same—Continuance—Practice on Appeal. Where the cause is remanded on other grounds, the' question of continuance need not be considered. 4. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon.
62 Tex. Crim. 403Shrewder v. State (1911)
1.—Theft—Statements of Facts and Bills of Exception—Practice on Appeal. Where, upon appeal from a conviction of theft, it appeared from the record that the statement of facts was presented to the county attorney within the time allowed by law, hut the latter would not agree thereto, it was the duty of appellant arid his counsel to present the matter to the judge to make up a statement of facts, and where this was not done the diligence was not sufficient, and the same can not be considered on appeal; and the indictment being sufficient, the judgment must be affirmed. 2. —Same—Antedating Pile Marks. An agreement between counsel to antedate a statement of facts in filing the same is a practice which can not be tolerated. 3, —Same—Charge of Court—Indictment—Bailment—Words and Phrases—Practice on Appeal—Article 723. Where the indictment charged the defendant with having in his possession the alleged stolen money by virtue of his contract of borrowing for the purpose of counting the same, and the court instructed the jury in the language of the indictment, but added thereto the words, “or other bailment,” the same, in the absence of a statement of facts, sufficiently submitted the offense alleged in the indictment, and under article 723, Code Criminal Procedure, ' there was no reversible error.
62 Tex. Crim. 410Sullivan v. State (1911)
The opinion states the case.
62 Tex. Crim. 413Day v. State (1911)
The opinion states the case.
62 Tex. Crim. 417Fletcher v. State (1911)
The opinion states the case.
62 Tex. Crim. 419Atkinson v. State (1911)
The opinion states the case.
62 Tex. Crim. 423Barrow v. State (1911)
The opinion states the case.
62 Tex. Crim. 424Bradford v. State (1911)
1. —Burglary—Indictment—Breaking—Force. In ordinary cases of burglary committed in the night-time, it is unnecessary to allege that the entry was committed by means of breaking, and an allegation that the entry was by force is sufficient. 2. —Same—Evidence—Confessions—Statement of Facts. Where there is no statement of facts, and the alleged confession is not recited in the bill of exceptions, the same can not be considered on appeal. 3. —Same—Evidence—Convict—Codefendant. Where defendant’s codefendant was serving a term in the penitentiary for participation in the same offense for which defendant was then on trial, he was not a competent witness for the defendant. 4. —Same—Indictment—Value. In cases of burglary with intent to commit theft it is unnecessary to allege the value of the property, and the jury need not find on this issue. 5. —Same—Special Charges—Practice on Appeal. In the absence of a statement of facts, requested charges can not be considered on appeal.
62 Tex. Crim. 426Adams v. State (1911)
The opinion states the case.
62 Tex. Crim. 428Ayers v. State (1911)
The opinion states the case.
62 Tex. Crim. 430Fox v. State (1911)
The opinion states the case.
62 Tex. Crim. 433Franklin v. State (1911)
The opinion states the case.
62 Tex. Crim. 435Ballard v. State (1911)
1. —Murder—Charge of Court—Manslaughter. Where the defendant was convicted of manslaughter, the charge of the court on the different degrees of murder need not be considered. 2. —Same—Charge of Court—Self-Defense—Manslaughter. Where, upon trial of murder, the charge of the court on the law of manslaughter was so confusing that it authorized the conviction of defendant of manslaughter on a case of self-defense, the same was reversible error. 3. —Same—Charge of Court—Self-Defense—Standpoint of Defendant. Where, upon trial for murder, the court’s charge on self-defense was so drawn as to leave the matter of danger from an attack of the deceased to the viewpoint of the jury, and not to the standpoint of the defendant, and further instructed the jury that self-defense is a defensive and not an offensive act and must not exceed the bounds of mere defense and prevention, the same was reversible error. 4. —Same—Defendant’s Bight to Seek Explanation—Self-Defense. If defendant sought an explanation from deceased, and the latter’s conduct was such as to lead the former to believe that his life was thereby endangered, he had the right of self-defense.
62 Tex. Crim. 440Fitzsimmons v. State (1911)
1. —Injuring Fence of Another—Ownership—Possession. Upon trial of unlawfully pulling down and injuring the fence of another, the inquiry in regard to the possession of the fence should be confined to the question of actual quiet and peaceable possession, and not the rightful possession of the fence; and where the court disregarded this rule there was reversible error. 2. —Same—insufficiency of Evidence. Where, upon trial of unlawfully injuring the fence of another, the evidence showed that the defendant was in quiet and actual possession of the alleged fence, and had been for ten or twelve years preceding, the conviction was not sustained.
62 Tex. Crim. 442Powdrill v. State (1911)
1. —Murder—Evidence—Expert Opinion—Position of Parties. Upon trial of murder, it was reversible error to permit a physician who testified as to the range of the shots in the body of the deceased, to testify that the shot which took effect under the left arm of the deceased was the first shot fired, he not being an eyewitness as to the position of the parties. 2. —Same—Evidence—Shorthand Pacts—Defendant’s Demeanor. Upon trial of murder there was no error in permitting the State’s witness to testify that she could tell that the defendant was mad from his manner, his walk, his looks, the way he cleared his throat and the peculiar expression about his face, etc. This was not a conclusion, but a shorthand rendering of the facts. 3. —Same—Buie Stated—Shorthand Facts—Opinion of Witness. The opinion of a witness, so far as it consists of the statement of the effect produced upon the mind, which can not be so described as that the jury itself can determine the facts, is primary evidence, and is admissible. 4. —Same—Evidence—Affidavit—Papers in Suit—Motive. Upon trial of murder, there was no error in permitting the State to show that the wife of the defendant had instituted a divorce suit against him and secured an injunction restraining defendant from disposing of any of their property, and that she made affidavit that he violated this injunction, it having been shown that the deceased acted with said plaintiff in these proceedings; but the detailed allegations in said papers were not admissible. 5. —Same—Evidence—Motive—Other Transactions. Upon trial of murder, there was no error in permitting the State to show a previous altercation between the defeiidant and the deceased growing out of a lawsuit between defendant’s wife and the defendant, the deceased siding with the mother; but the details of the fight were inadmissible. 6. —Same—Charge of Court—Cooling Time—Murder in Second Degree. Where, upon trial for murder, the evidence showed that the defendant was very much angered and agitated when he first was informed that his wife had made an affidavit seeking to have him punished for a violation of an injunction suit, and that the deceased was instrumental in securing this affidavit, and that this occurred about thirty minutes before the homicide, the court should have charged on the question of cooling time, that if the mind of defendant at the time of the killing was incapable of cool reflection, that defendant would be guilty of murder only in the second degree. 7. —Same—Rule Stated—Inadequate Cause—Previous Altercation. A charge on cooling time is ordinarily held to arise in cases when the testimony showed an altercation or fight between the deceased and the accused prior to the killing; but where anything occurs prior to the killing that excites and disturbs the mental equilibrium of the accused and shows that sufficient time has not elapsed for the accused to become cool, calm and deliberate, a charge on cooling time should be submitted. 8. —Same—Charge of Court—Manslaughter. If the issue of manslaughter is raised by the evidence, the court should give an affirmative charge thereon, and likewise on the issue of self-defense if the same is raised by the evidence. 9. —Same—Provoking Difficulty. Where, upon trial for murder, the evidence did not show that the deceased provoked the difficulty, there was no error in the court’s failure to charge thereon.
62 Tex. Crim. 448Day v. State (1911)
1. —Assault to Murder—Assignments of Error—Practice on Appeal. Assignments of error can not be considered upon appeal, and the unvarying rule is that nothing that is not presented in the motion for new trial will be reviewed. Following Harvey v. State, 57 Texas Grim. Rep., 7, and other cases. 2. —Same—Continuance—Want of Diligence—Materiality of Testimony. Where, upon trial of assault with intent to murder, it became a material issue whether the prosecuting witness had his gun leveled at the defendant at the time the defendant shot at him with a shotgun, and that the absent testimony would show that the prosecutor’s gun received a shot in the breach, the same was material testimony, and a new trial should have been granted, although the diligence was insufficient, the defendant claiming surprise. 3. —Same—Evidence—Declarations of Third Parties. Upon- trial of assault to murder it was error to admit testimony that witness and defendant’s son were running from the grand jury, there being no testimony that defendant aided or induced them to avoid going before the grand jury 4. —Same—Evidence—Intimidating Witness. Upon trial of assault to murder, testimony that the witness was threatened by the defendant to induce the witness to make a certain statement in his favor was admissible, but testimony that the witness made a complaint against defendant for such threat, etc., was inadmissible. 5. —Same—Evidence—Other Transactions. Upon trial of assault to murder, testimony that defendant made another assault on a third party not connected with the assault, for which he was being tried, was inadmissible.
62 Tex. Crim. 453Streight v. State (1911)
1. —Murder—Change of Venue—Fair and Impartial Trial. Where upon trial of murder, the evidence on the application for change of venue, showed that the testimony in the ease and the opinion of the trial judge denying hail were published in newspapers having a general circulation throughout the county of the prosecution, that a number of citizens had hanged and burned in effigy the judge granting defendant bail, and that defendant could not get a fair and impartial trial on account of the existing prejudice ”and excitement, the venue should have been changed. 2. —Same—Dismissal—Codefendant—Severance. Upon trial. of murder, where defendant filed a motion to place his codefendant on trial first, but the State’s counsel dismissed the prosecution against said codefendant, the latter then became a qualified witness for either party, although tlie prosecution had not agreed that it would not prosecute codefendant in the future, and there was no error. 3. —Same—Indictment—Jury and Jury law. Where a grand juror had intense opinions in the matter of the prosecution against the defendant, but was not a private prosecutor in -a legal sense, this was no cause for challenge or a ground for quashing the indictment. 4. —Same—Continuance—Sickness. Where a defendant was so ill as not to be able to confer with her counsel, and too sick to stand a trial without lying down on a cot, etc., she should not have been forced to trial. 5. —Same—Jury and Jury law—Selecting Jury. While it would not be such error as to require reversal, in the absence of injury shown, yet where a motion to exclude veniremen from the courtroom during the selection of a jury would show that the defense would be prejudiced by not excluding said veniremen, the same should be granted. 6. —Evidence—life Insurance—Motive. Where, upon trial of murder, it was shown that the policies on the life_ of the deceased were in part payable to defendant, there was no error in admitting testimony that defendant inquired about such insurance. ■ 7.—Same—Evidence—Opinion of Witness. Upon trial of murder it was error to ask defendant’s witness, on cross-examination, if she did not tell another that the defendant had made three or four different tales about the killing, and that there was no use to ask defendant about it. This was simply the opinion of the witness. Following Drake v. State, 29 Texas Grim. App., 265. 8. —Same—Evidence—Conduct of State’s Counsel. Upon trial of murder, it was improper for the district attorney, in the presence and hearing of the jury, to say that the defendant’s witness had testified on a former trial that deceased was lying in a perfect position of rest, the court having sustained an objection to this question. 9. —Same—Evidence—Rebuttal. On trial of murder, there was no error where defendant’s witness had denied that defendant told him that deceased was after defendant, running her around the room with a razor, and that she got a pistol and shot him, to show in rebuttal that she did make such statement. 10. —Same—Evidence—Impeachment. Where the testimony of the defendant as a witness was attacked by a severe cross-examination, it was permisible to prove that she had told her cousin, with whom she was raised and who was a lawyer, of her husband’s conduct, but acting on the advice of her cousin remained with her husband. 11. —Same—Evidence—Experiment. ■ Where, upon trial of murder, the State contended that when the pistol was fired it had burned the eyebrows of deceased, the defendant should have' been permitted to show by an experiment which defendant’s witness had made that a pistol shot would not have burned the eyebrows of deceased when fired, regardless of the range. 12. —Same—Evidence—Contradicting Witness. Where, upon trial of murder, the witness for the defendant had testified that she heard the bedsprings screak at the time of the homicide, there was no error -in permitting the State to show that the said bedsprings did not screak. 13. —Same—Character of Deceased—Threats—General Reputation. Where, upon trial of murder, the defense introduced testimony that the deceased had made threats to kill the defendant, there was no error to admit testimony of the general reputation of deceased as a peaceable, law-abiding citizen; although testimony that the witnesses had never heard deceased curse his wife or any other member of his family was hardly proper. 14. —Same—Evidence—Bias and Prejudice of Witnesses. Upon trial of murder, the defendant should have been permitted to show that the State’s witnesses were biased and prejudiced and had ill will towards defendant, by showing that when the judge had admitted her to bail that they hanged said judge in effigy. 15. —Same—Child Witness—Discretion of Court. Where no injury was shown to the defendant, there was no error in admitting the testimony of a witness who was only nine years old. 16. —Same—Evidence—Telephone. Upon trial of murder, where the witnesses recognized, the voice of defendant and another, there was no error to permit them to testify as to a conversation between them over the telephone. 17. —Same—Evidence—Opinion of Witness. Upon trial of murder it was error to permit the. State’s witness to testify as to the opinion of a third party about the killing, and her statements with reference thereto in the absence of th"e defendant. 18. —Same—Evidence—Contradicting Witness. Upon trial of murder, where defendant’s witness was asked if she did not tell another that deceased was one of the highest minded men she ever knew, it was error not to permit her to tell what she did say, and to force her to answer the question yes or no. 19. —Same—Evidence—letters—Motive—Degrees of Homicide. Where, upon trial of murder, the defendant had testified on cross-examination as to certain troubles between herself and her husband, the deceased, which were caused by the belief of deceased in her infidelity, and that certain letters written by defendant but whose authorship she denied tended to shed light upon these troubles and the homicide, as to motive and as to the causes leading up to it, and determined to some degree the character of the homicide in the event she committed it. Held, that these letters, in the light of all the evidence and especially defendant’s testimony, were admissible in evidence, although the examination in chief limited these troubles to a certain period of time, and some of the letters extended beyond that time. Davidson, Presiding Judge, dissenting. 20. —Same—Bail—Habeas Corpus—Constitutional law—Statutes Construed.—■ Practice. Where, upon appeal from conviction of murder, it appeared from the record that defendant had immediately after the indictment was found, and before her main case was set for trial made application for a writ of habeas corpus which was granted, and that the court afterward set the main trial on the same day for which the writ of habeas corpus was made returnable and which application was not heard, but defendant was forced to trial and carried back and forth from jail during her trial, such practice was in direct conflict with article 1, section 12, Constitution of Texas, and was a denial of defendant’s right under articles 635 and 636, Code Criminal Procedure, to remain on bail during trial if her case was bailable. 21. —Same—Habeas Corpus—Practice on Appeal. Where it appeared on appeal from a conviction of murder that the trial court had granted a writ of habeas corpus but had refused to hear the same and forced fhe defendant to trial, and the case was remanded on appeal, the lower court is instructed to hear the writ of habeas corpus before proceeding with the main trial of the case. 22. —Same—Evidence—Impeachment. Where, upon trial of murder, the State for the purpose of impeachment introduced certain excerpts from the testimony of the defense witnesses at a habeas corpus trial and affidavits before the grand jury, it was error not to permit the defendant to introduce the other portions of such testimony and statements. 23. —Same—Conduct of Counsel—Side Bar Remarks. Side bar remarks of counsel for both State and defendant are improper and under certain circumstances may lead to a reversal. [Rehearing denied May 24, 1911.—Reporter.]
62 Tex. Crim. 485Condron v. State (1911)
The opinion states the case.
62 Tex. Crim. 492Novy v. State (1911)
1. —Disorderly House—Recognizance—Reinstatement. Where the recognizance failed to state the amount of punishment assessed against the appellant in a misdemeanor case, the same was defective. However, on filing of a proper recognizance the case was reinstated. 2. —Same—Information—One Offense. Where, upon trial of keeping a disorderly house where spirituous and vinous liquors were kept for sale, etc., without license, the information charged that the defendant kept such a house from July 1 to November 1, 1909, only one offense was charged, and the objection that the information charged one hundred and twenty separate offenses (there being so many days intervening between the two dates) was untenable, as but one conviction could be obtained. 3. —Same—Evidence—Freight Bills. Upon trial of keeping a disorderly ho,use for the sale of vinous and other liquors, etc., there was no error in admitting in evidence the freight bills against defendant which were properly proven up by the agent. 4. —Same—Evidence—Abbreviations. There was no error in admitting in evidence the freight bills or receipts against the defendant because they contained certain abbreviations indicating that they were for liquor delivered to defendant. 5. —Same—Evidence—Internal Revenue Records. Upon trial of keeping a disorderly house for the sale of vinous and other liquors, etc., there was no error in admitting in evidence the examined copy of the internal revenue collector’s records. 6. —Same—Evidence—Agency. Upon trial of keeping a disorderly house for the sale of spirituous and vinous liquors, etc., there was no error in admitting testimony that a State’s witness had purchased such liquors from defendant’s clerk in his grocery store; and this although the information charged the defendant as the owner and lessee of said house, etc. 7. —Same—Charge of Court—Agency. Where, upon trial of keeping a disorderly house for the sale of vinous and other liquors, etc., the information charged the defendant with being the owner and lessee of the said house, it was reversible error to charge the jury that the keeping of such house by the defendant through an agent and knowingly permitting it to be so kept, rendered the defendant guilty, as the evidence tended to show a specific sale of such liquor by one of appellant’s clerks, and the defendant requested the proper charges and presented proper exceptions to the charge of the court at the time.
62 Tex. Crim. 497Gentry v. State (1911)
The opinion states the case.
62 Tex. Crim. 501Allen v. State (1911)
1. —Arson—Circumstantial Evidence—Sufficiency of the Evidence. Where, upon trial of arson, the evidence was purely circumstantial, but linked up with that certainty as to authorize a conviction, there was no error. See opinion for facts held sufficient to support a conviction on circumstantial evidence. 2. —Same—Continuance—Immateriality of Testimony. Where the testimony of the absent witness, as to the time when defendant was seen on the night of the commission of the offense, was immaterial, there was no error in overruling same. 3. —Same—Charge of Court—Definition of House. Where the court in his charge defined a house to be any building, edifice, or structure enclosed with walls and covered, whatever be the material used for the building, there was no error. 4. —Same—Charge of Court—Ownership. Where, upon trial of arson, the court charged that if the defendant burned a certain house as charged in the indictment to find him guilty, and the indictment alleged the name of the owner of the house, there was no error in not setting forth the name of the owner in the charge of the court. 5. —Same—-Bills of Exception—Practice on Appeal. Where bills of exception are not embraced in the record they can not be considered on appeal. G.—Same—Evidence—Deed—Ownership. The allegation of ownership in a prosecution for arson is merely to describe and identify the subject of the crime, and the title is not in issue, and there was no error to admit oral testimony to show that the alleged owner bought the property from a third party some time before the offense was committed, without introducing the deed. 7. —Same—Evidence—Identification. Where the defendant was positively identified, there was nothing in the bill of exceptions objecting to such identification. 8. —Same—Evidence—Tracks. Where, upon trial for arson, the evidence was entirely circumstantial, there was no error in permitting a witness to testify that he pointed out to the sheriff the team driven by the defendant; and in permitting the sheriff to testify that he examined the tracks and the feet of these horses. 9. —Same—Witnesses Under the Buie—Discretion of Court. Where, upon appeal, the bills of exception did not show that the court abused his discretion in permitting a witness to 'testify who was not placed under the rule, there was no error. 10. —Same—Argument of Counsel. Where the bill of exceptions presented no error, and the defendant requested no instruction to withdraw State counsel’s argument there was no error. 11. —Same—Motion for New Trial—Bills of Exception. Where the objections set out in the motion for new trial were not embraced by bills of exception in the record, they could not be considered on appeal. [Rehearing denied May 31, 1911.—Reporter.]
62 Tex. Crim. 507Miller v. the Sate (1911)
The opinion states the case.
62 Tex. Crim. 508Perkins v. State (1911)
The opinion states the case.
62 Tex. Crim. 512Knox v. State (1911)
1.—Gaming—Constitutional Law. The Act of the Thirtieth Legislature, making it a felony to keep a house where people resort for the purpose of betting and gambling with cards, is constitutional. i$.—Same—Sufficiency of the Evidence. Where, upon trial of keeping a house where people resorted for the purpose of betting and gambling with cards, the evidence showed that the defendant was in control of the house where the gambling was alleged to have taken place, and the people resorted there for the purpose of betting and gambling with cards, the conviction was sustained. See opinion for facts held sufficient to sustain the conviction. . Davidson, Presiding Judge, dissenting. [Behearing denied Hay 31, 1911.—Beporter.]
62 Tex. Crim. 514Simer v. State (1911)
The opinion states the case.
62 Tex. Crim. 524Randell v. State (1911)
The opinion states the case.
62 Tex. Crim. 525Garner v. State (1911)
The opinion states the case.
62 Tex. Crim. 527Day v. State (1911)
The indictment charged the defendant with disturbing the inhabitants in a private house of one Kemp by wilfully using loud and vociferous language, cursing and yelling, etc. Another count charged the defendant with making an assault on said Kemp, and still another count for using violent and abusive language concerning said Kemp, calculated to provoke a breach of the peace.
62 Tex. Crim. 530Miles v. State (1911)
The opinion states the case.
62 Tex. Crim. 532Spates v. State (1911)
1. —Murder—Accomplice—Charge of Court—Knowledge of Crime. Where, upon trial of murder, the evidence showed that the defendant told the witness for the State, before the homicide occurred, “There is where I will do the work tonight,” to which the witness replied, “Uh huh,” and left; and it was not shown that the said witness had advised or consented to, approved or encouraged the crime. Held, that he was not an accomplice, and there was no error in the court’s failure to charge on accomplice testimony as to this witness. 2. —Same—Charge of Court—Accomplice Testimony. Where, upon trial of murder, one of the State’s witnesses was an admitted accomplice, and the court’s charge, taken as a whole, correctly submitted this issue to the jury, there was no error. Following King v. State, 57 Texas Crim. Rep., 363. 3. —Same—Evidence—Circumstances. Upon trial of murder, there was no error in admitting testimony that the deceased was in possession of quite a lot of money just before the homicide, and that none or very little was found on his body thereafter; and to show that an iron piece of pipe was found covered with blood stains, etc., near the scene of the homicide. 4. —Same—Evidence—Expert Testimony. On trial of murder there was no error to admit testimony of a physician’s post mortem examination of the deceased, to show how he came to his death. 5. —Same—Circumstantial Evidence. Upon trial of murder there was no error in admitting testimony that the defendant had no money just before the homicide, and that he had quite a lot of it immediately thereafter. 6. —Same—Evidence—Flight. Upon trial of murder there was no error in admitting testimony that the sheriff pursued the defendant and arrested him in another county, and that there were several charges of felony and misdemeanor against the defendant; the defendant not objecting to any of the testimony at the time. 7. —Same—Closing Evidence—Discretion of Court. Where no abuse of discretion is shown, there was no error in the court’s action to permit additional testimony for the State after the opening speech of the prosecution had been made, and while counsel for the defendant was making his opening address. 8. —Same—Sufficiency of the Evidence—Charge of Court. Where, upon trial of murder, a conviction of murder in the first degree was sustained by the evidence, and showed the purpose of the homicide to have been robbery, there was no error in refusing to give a peremptory instruction to acquit.
62 Tex. Crim. 537Davis v. State (1911)
The opinion states the case.
62 Tex. Crim. 538Seibert v. State (1911)
The opinion states the case.
62 Tex. Crim. 539Palmer v. State (1911)
Carrying Pistol—Practice on Appeal—Ex parte Letter. Where there are neither bills of exception nor attestment of facts in the record, the Appellate Court could not consider an ex parte letter written by the appellant, and must assume that the court submitted the law applicable to the case.
62 Tex. Crim. 540Long v. State (1911)
The opinion states the case.
62 Tex. Crim. 541Jackson v. State (1911)
Simple Assault—Evidence—Other Transactions. Where, upon trial of assault, it was a question of some importance as to who was responsible for the beginning of the difficulty, it was reversible error not to admit testimony that the prosecutor, while under the influence of the rage, passion and excitement engendered by prior difficulties with other parties, began the difficulty with the defendant; the prosecutor denying that he was excited, etc., at the time.
62 Tex. Crim. 545Carden v. State (1911)
1. —Bribery—Officer—Evidence—Convict—Pardon. Where, upon trial of attempt to bribe an officer, it appeared from the record on appeal that the defendant’s counsel, under a misapprehension, were led to believe that a certain witness for the State would not be allowed to testify unless it appeared that he had been pardoned, and defendant’s counsel acting thereon had not obtained a certified copy of the conviction of said witness, and offered to prove the same orally which they were not permitted to do; and defendant’s motion for new trial set out this matter fully and showed that counsel had not been derelict in obtaining said certificate, a new trial should have been granted. 2. —Same—Evidence—Other Offenses—Intent. Upon trial of attempting to bribe an officer, there was no error in permitting the State to introduce testimony that some months after the original attempt to bribe the officer, defendant had attemped to bribe a juror, in order to show intent of defendant in the first transaction. 3. —Same—Charge of Court—Other Offenses. When evidence of other offenses is admitted to show intent, the jury should be plainly instructed that before they can consider this evidence upon the question of intent, the same must be found to be true.
62 Tex. Crim. 550Ex Parte John Kuhlman (1911)
Murder—Denial of Bail. See opinion for evidence sustaining a iudgment of denial of bail upon writ of habeas corpus. [Behearing denied June 21, 1911.—Beporter.]
62 Tex. Crim. 551Waterhouse v. State (1911)
Carrying Pistol—Insufficiency of the Evidence—Traveler. Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant in taking his pistol home was traveling the most practicable route and the one he most generally went, although there might have been a shorter road, the court charged the jury that the defendant must travel the shortest and most practicable route, and did not submit the special charge submitting the issue of defendant’s incidental stopping to buy groceries and that he was traveling the most practicable route, the same was reversible error.
62 Tex. Crim. 552Banks v. State (1911)
1.—Local Option—Charge of Court—Circumstantial Evidence. Where, upon trial of a violation of the local option law, the evidence was ample to support the verdict, and there was no charge requested on circumstantial evidence, the case being a misdemeanor, there was no reversible error. 2. —Same—Substituting Lost Information—Notice—Bill of Exceptions. Where the orders of the court below, with reference to substituting the original information, were regular and the record showed that the defendant was present at the entry of the same, there was no reversible error; besides the bill of exceptions did not recite the grounds of objection which rendered the action of the court improper. 3. —Same—Substituting Lost Information—Nunc Pro Tunc. An order substituting a lost indictment or information may be entered nunc pro tunc at a subsequent term of the court.
62 Tex. Crim. 556Shuffield v. State (1911)
1. —Aggravated Assault—Assault and Battery—Assault. Where the information did not charge an assault and battery but limited the allegation to an assault, the jury should have been limited to the offense charged in the information. 2. —Same—Insufficiency of the Evidence—Simple Assault. Where, upon trial for aggravated assault by means of a deadly weapon, the evidence showed that the defendant presented a gun in a threatening manner to alarm, a conviction of aggravated assault could not be sustained and the offense if any was simple assault. Following Haygood v. State, 51 Texas Crim. Rep., 618; Pierce v. State, 37 Texas Crim. Rep., 643, and other cases. Overruling McCullough v. State, 24 Texas Crim. App., 128; Blackwell v. State, 33 Texas Crim. Rep., 278.
62 Tex. Crim. 557Allen v. State (1911)
The owner of the house alleged to have been burglarized testified that he left the house closed, and when he returned found that a sack of flour, a coat, a bridle, a shotgun and five midlings of meat had been taken from his house and smoke house; that his house was fastened with bolts, etc.; that the next day he and another State’s witness saw the defendant’s accomplice and a man they took to be defendant put something in a wagon and drive off with it.
62 Tex. Crim. 561Campbell v. State (1911)
1. —Assault to Rape—Recognizance—Dismissal—Reinstatement, Where the appeal was dismissed because the recognizance was defective in not stating the amount of punishment assessed against the appellant, but he later filed a new recognizance within proper time, the case will be heard on its merits. 2. —Same—Bill of Exceptions—Practice on Appeal. Where bills of exception were not in the record the error assigned in them can not be considered. 3. —Same—Evidence—Leading Question—Child Witness. When a person is of immature years and laboring under excitement, etc., leading questions may be permitted by the court; and where the prosecutrix in trial for attempt to rape was only thirteen years old, was crying and under excitement, there was no error in permitting leading questions to be asked. 4. —Same—Hearsay Evidence. Upon trial of assault to rape there was no error in not permitting certain witnesses to testify as to what a third party, who was not a witness, had said to them on different occasions when neither the defendant nor prosecuting witness were present. 5. —Same—Letters—Evidence. Before a witness who has read a letter will be permitted to testify as to its contents, some reason must be given for its nonproduction; and where no such reason was given in trial of assault to rape there was no error in not permitting witnesses to state the contents of a certain letter to defendant. G.—Same—Evidence—Credibility of Witness. Where, upon trial of rápe, the defendant had sought to impeach the prosecutrix by her mother as to a conversation between them with reference to the alleged rape, there was no error in permitting the said mother to testify to this conversation in substance as the prosecutrix had detailed it. 7. —Same—Argument of Counsel—Practice. It is proper for the court to confine the argument of counsel to the evidence adduced on trial and to instruct the jury accordingly. 8. —Same—Argument of Counsel—Response. Where the defendant’s counsel had first referred to extrinsic matters not in evidence, he could not complain of State’s counsel’s remark in direct response to such references; especially where no special charge was requested, and there was no error. Following Levine v. State, 35 Texas Grim. Rep., 649, and other cases. 9. —Same—Evidence—Defendant as a Witness—Cross-Examination—Credibility of Witness. While a defendant' as a witness is subject to the same cross-examination as any other witness, he can not be cross-examined on a matter about which he has not been indicted, and the question does not indicate’ a state of affairs for which he could be indicted, for the purpose of affecting his credibility; and the State must accept his answers to such questions and will not be permitted to impeach him. Following Brittain v. State, 36 Texas Grim. Rep., 410, and other cases. 10.—Same—Evidence—Case Stated. Where the testimony brought out on cross-examination of defendant as a witness could only show that he was not a moral man, perhaps, a libertine, and thus create a prejudice in the minds of the jury against him on a trial of assault to rape, the same was inadmissible, and could not affect his credibility as a witness.
62 Tex. Crim. 568Hickey v. State (1910)
The opinion states the case.
62 Tex. Crim. 585Feeny v. State (1911)
1. —Forgery—Certificate—Practice on Appeal. Original papers sent up to the Court of Criminal Appeals must be verified by the certificate of the clerk in the trial court. 2. —Same—Fictitious Person—Evidence. Where the indictment alleged that the alleged maker of the check was a fictitious person, there was no error in admitting proof of this allegation, especially where the endorsement on the check purported to show contractual relations between defendant and said fictitious maker. 3. ^-Same—Charge of Court—Deposit—Collection. Where, upon trial of forgery, the evidence showed that the defendant left the alleged check with a bank and drew against it, the amount having been passed to his credit, this showed that the check was left for deposit and not for collection, and there was no error in the court’s failure to submit the question of collection to the jury. But even if left in the bank for collection he must have known the fraud. 4. —Same—Variance—Charge of Court. Where, upon appeal from a conviction of forgery, the appellant claimed a variance between the allegations in the indictment and the instrument introduced in evidence, and the original written instrument was sent up with the record and simply showed bad handwriting and no material variance, there was no error in the court’s failure to submit a requested charge on the question of variance. 5. —Same—Variance—Non Est Factum. Where, upon appeal from a conviction of forgery, the appellant claimed a variance between the allegation in the indictment and the written instrument in evidence as to the name of the maker, and it further appeared from the record that the appellant had pleaded non est factum, spelling the name of the alleged maker of the instrument as set out in the indictment, he could not be heard to claim a variance. 6. —Same—Variance—Rule Stated. Where the allegation is sufficiently certain that the accused may know the instrument which he is charged to have forged or passed, and is sufficiently identified to enable the defendant to plead former acquittal or conviction, no substantial variance can he claimed, 7.—Same—Statement of Facts. Where it is shown on appeal that the statement of facts was filed within time, an order of the Appellate Court declining to consider the same will be set aside and the case heard on its merits.
62 Tex. Crim. 592Brown v. State (1911)
The opinion states the case. As to the value of the eighty acres of land, defendant placed the witness Posey on the stand, and.on cross-examination State’s counsel asked this witness the following question: “Didn’t you make a trade with G. 0.
62 Tex. Crim. 599Douglas v. State (1911)
Illegal Practice of Medicine—Statement of Facts—Bills of Exception. Where, the statement of facts and bills of exceptions were filed after the time provided by law in which they can be filed, and there was no reason assigned why they were not filed in time; and they were not approved by the judge nor signed by defendant’s counsel or the prosecuting attorney, they could not be considered on appeal; and the mere submission of the statement of facts by defendant’s counsel to the county attorney during the term of the court at which the conviction was had, and the latter’s promise that same would be signed and filed, was not sufficient diligence.
62 Tex. Crim. 607Carden v. State (1911)
The opinion states the case.
62 Tex. Crim. 610James v. State (1911)
Carrying Pistol—Substituting Information. Where appellant, seven days after the trial and judgment, filed a motion in arrest of judgment on the ground that no information had been filed, and the court permitted the county attorney to present a motion to substitute the information and heard affidavits upon the question, and thereupon entered an order subsituting the information, there was no reversible error. [Rehearing denied June 21, 1911.—Reporter.]
62 Tex. Crim. 611Taylor v. State (1911)
1.—Theft of Cattle—Indictment—Want of Consent. Where, upon trial of theft of cattle, there was a specific allegation in the indictment that the property was taken without the consent of each of the two owners alleged in the indictment, the same was sufficient without the further allegation that the taking was without the consent of either of them. 2. —Same—Ownership—Special Owner. Where, upon trial of theft of cattle, the evidence showed that the alleged owners were in actual control and management of the cattle on the range by authority of the actual owner, the allegation of ownership in the indictment was sufficiently sustained. 3. —Same—Evidence—Brand—Memorandum. Where, upon trial of theft of cattle, the State’s witness had already testified to the mark and brand he found on the alleged stolen animal, there was no error in permitting him to further testify that at the time he and others examined the brand on said animal that he made a memorandum of the mark and brand and handed it to the district attorney, who offered it in evidence. 4. —Same—Evidence—Identification. Where, upon trial of theft of cattle, the State had shown that defendant sold the alleged animal to the witness testifying, there was no error in permitting said witness to further testify that he had shown the alleged animal he had purchased from the defendant to another party, which testimony was connected up with the testimony of said party and other witnesses as to the identity of the animal. 5. —Same—Evidence—Handwriting. Upon trial of theft of cattle, where defendant claimed that he had purchased the alleged stolen animal and introduced a bill of sale, there was no error in permitting the State to introduce in evidence a certain road petition which the alleged grantor of the bill of sale had signed, and permit a comparison of handwriting by an expert. 6. —Same—Evidence—Opinion of Witness. On trial of theft of cattle there was no error in rejecting witness’ understanding as to what a third party had told him. 7. —Same—Evidence—Bill of Sale. On trial of theft of cattle there was no error in rejecting testimony as to a bill of sale signed by the wife of defendant’s alleged vendor, and relating to different transactions, and which was not in the handwriting of said vendor. 8. —Same—Bill of Exceptions—Statement of Facts—Practice on Appeal. While bills of exception may be reserved in a statement of facts, such bills must be separately approved by the court, and where the certificate of approval was limited to the approval of the statement of facts and did not include bills of exception in said statement of facts, the bills could not be considered on appeal. 9. —Same—Charge of Court—Circumstantial Evidence—Taking. Where, upon trial of theft of cattle, the defendant contended that if he changed the brand on the alleged animal on the range that this would constitute the original taking, and that the fact that he was subsequently seen driving it from its accustomed range was but a circumstance to be considered in determining whether or not he was the person who branded the animal, and that the court should have charged on circumstantial evidence. Held, that defendant not requesting any special instruction there was no error under article 723, Code Criminal Procedure; besides the defendant’s act of taking said animal from its accustomed range was an offense in itself, and constituted a new theft. 10. —Same—Charge of Court—Circumstantial Evidence. Where, upon trial of theft of cattle, the defendant admitted that he took the alleged stolen animal from its accustomed range, basing his defense on an alleged purchase, there was no error in the court’s failure to charge on circumstantial evidence. 11. —Same—Charge of Court—Purchase—Reasonable Doubt. Where, upon trial of theft of cattle, the court not only submitted defendant’s claim of purchase but instructed the jury that if on the whole case they had a reasonable doubt of defendant’s guilt, to acquit him, there was no error. 12. —Same—Bills of Exception—Identity of Stolen Animal—Brand. Where, upon appeal' from a conviction of theft of cattle, appellant reserved his bill of exceptions in the statement of facts, but the judge so limited his approval of the statement of facts as to exclude the idea that he was approving the bills therein contained, the same could not be considered on appeal, besides as the rejected testimony was with reference to the brand on the alleged animal and the identity of said animal was proved by other testimony there was no error. 13. —Same—Ownership—Possession. Where the issue of ownership was not raised in the evidence on trial, but was raised for the first time in appellant’s brief, it could not be considered on appeal; besides the evidence was ample to support the finding of the jury that the persons alleged in the indictment were the special owners of the alleged stolen animal.
62 Tex. Crim. 620Watson v. State (1911)
The opinion states the case.
62 Tex. Crim. 622Newton v. State (1911)
1. —Theft—Charge of Court—Conspiracy—Weight of Evidence. Where, upon trial of theft of cotton, the evidence did not show any conspiracy on the part of the defendant with other parties, and that he was present at the time these other parties had a conversation with reference to borrowing a wagon and team to move the alleged cotton, it was reversible error to instruct the jury that these statements in the absence of the defendant could be used against him, the jury not being told in what manner such testimony could be used against defendant, whether to prove the conspiracy or the entire transaction. Besides defendant was not connected with the conspiracy. 2. —Same—Evidence—Conspiracy. Where, upon trial of theft of certain seed cotton, the evidence did not show a conspiracy between defendant and other parties concerned therein, and there was no predicate laid therefor, testimony on conspiracy was inadmissible. 3. —Same—Charge of Court—Accomplice. Where, upon trial of theft of certain seed cotton, there was no evidence connecting defendant therewith, but the evidence showed that the defendant’s brother and the State’s witness were concerned therein, it was reversible error in the court’s charge on accomplice testimony, taken in connection with the court’s charge on principals and conspiracy, to so frame the same as to make the accomplice testimony applicable to the defendant as being criminally connected with the transaction. 4. —Same—Charge of Court—Repetition. Where, upon trial of theft, the evidence showed that defendant’s brother and the principal State’s witness were concerned with the taking of the alleged stolen cotton, it was reversible error in the court’s charge on principals, etc., to impress the jury by various repetitions in his charge that the defendant in the court’s judgment was connected with the taking, there being no evidence to so connect the defendant, further than that the said accomplice furnished a team and wagon to defendant’s brother, etc.
62 Tex. Crim. 631Mansfield v. State (1911)
Tried below before the Hon. W. H. Pope. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life. The opinion states the case.
62 Tex. Crim. 635Burrell v. State (1911)
1. —Local Option—Argument of Counsel. Where the State’s counsel, in his argument to the jury, told them that if they did not convict the defendant they might as well wipe the local option law off the statute books and tear down their courthouse, and that if it had not been that the felony law was passed after the local option law the defendant could be sent to the penitentiary, and that therefore they should give him the severest penalty, etc., to all of which the defendant duly excepted, and asked that the remarks be withdrawn, which the court refused, the same was reversible error. 2. —Same—Newly Discovered Evidence—Affidavit. Where the allegation of newly discovered evidence is not supported by the affidavit or the testimony of the witnesses, the same can not be considered on appeal. 3. —Same—Argument of Counsel. See opinion admonishing prosecuting officers to keep within the record in their argument.
62 Tex. Crim. 637Jones v. State (1911)
The opinion states the case.
62 Tex. Crim. 638Gordon v. State (1911)
The opinion states the case.
62 Tex. Crim. 639Pyron v. State (1911)
The opinion states the case.
62 Tex. Crim. 640Frazier v. State (1911)
The opinion states the case.
62 Tex. Crim. 642Griffith v. State (1911)
1. —Burglary—Continuance—Particeps Criminis. The testimony of an absent witness must be in such condition that it can b.e forced from him as expected to be proved by the application for continuance, and where the absent witnesses were particeps criminis and had fled the country, and besides there was no diligence in procuring their testimony, there was no error in overruling the application. 2. —Same—Charge of Court—Night Burglary. Where, upon trial of burglary by night, the court correctly defined this offense and applied the law to the facts there was no error. 3. —Same—Sufficiency of the Evidence. Where, upon trial for burglary, the evidence sustained the conviction, there was no reversible error.
62 Tex. Crim. 645Robinson v. State (1911)
1. —Robbery—Evidence—Bill of Exceptions. Where no bills of exception were contained in the record reserving the objection to the admission of evidence, the same could not be considered, and the statement of facts can not be considered as a bill. 2. —Same—Charge of Court—Alibi. Where, upon trial of robbery, the evidence did not raise the issue of alibi, and there was no special charge requested, and the court properly submitted the law applicable to the facts, there was no error. 3. —Sufficiency of the Evidence. Where, upon trial of robbery, the evidence sustained the conviction, there was no error. 4.—Same—Variance—Indictment. It is not necessary to prove that the exact amount of money stated in the indictment for robbery was actually taken; it is sufficient if any amount was taken.
62 Tex. Crim. 648Burton v. State (1911)
1. —Theft—Evidence—Statement of Facts. In the absence of a statement of facts or bill of exceptions, an objection to the testimony can not be considered. 2. —Same—V erdiet—C ertainty. Where, upon trial of felony theft, the jury returned a verdict that they found the defendant guilty as charged in the indictment and assessed his punishment at four years confinement in the State penitentiary, the same was sufficiently certain to support the indictment and judgment. Overruling Guest v. State, 24 Texas Grim. App., 530; approving McGee v. State, 39 Texas Grim. Rep., 190. 3. —Same—Rule Stated. It is now the well established rule that verdicts are to have a reasonable intendment and construction, and are not to be avoided unless from necessity originating from doubt of their import or immateriality of the issue found. Following Walker v. State, 13 Texas Grim. App., 618, and other cases. 4. —Same—Charge of Court—Fraudulent Taking. Where the court in his charge properly submitted the fraudulent taking of the alleged property, want of consent of the owner, .etc., there was no error in the court’s failure to charge that the taking must be stealthy or without the knowledge of the owner. 5. —Same—Article 723—Charge of Court. Where there was no statement of facts, a complaint to the charge of the court as to fraudulent taking was not reversible error under article 723, Code Criminal Procedure, even if not technically correct.
62 Tex. Crim. 651Ex Parte Bockhorn (1911)
1. —Habeas Corpus—Occupation Tax—Constitutional law—Repeal. Where relator was tried and convicted in the Justice Court on the charge of following the occupation of selling sewing machines without paying the occupation tax, under an Act of the Legislature exempting merchants who follow such occupation. Held, that under article 8, sections 1 and 2 of the Constitution of Texas, said Act is unconstitutional and discriminating; and this although the tax upon merchants had been thereafter repealed. 2. —Same—Rule of Construction. An unconstitutional law can not be vitalized and held constitutional by reason of some subsequent Act of the Legislature which removes the difficulty either directly or indirectly.
62 Tex. Crim. 653Fleming v. State (1911)
1.—Illegal Deposit—Bank President—Statutes Construed. Under the Act of the Twenty-fifth Legislature, page 130, it is necessary that the indictment should charge the particular named officer with a violation of said statutes, and that such officer received or assented to receive a deposit of money or other valuable thing into the hank of which he is an officer, knowing at the time of the deposit that the bank was insolvent or in failing circumstances, and that he either received this in person or assented thereto with the intention not to return the money. 2. —Same—Indictment—Insolvency—Deposit. Where, in a prosecution of an illegal deposit in a bank, the indictment did not allege affirmatively that the bank was insolvent at the time of the reception of the deposit, and did not aver that the alleged check was in such condition as to become a deposit in the bank to the credit of the bank, or that it was transferred to the bank as a deposit, the same was insufficient. Qualifying Roby v. State, 41 Texas Grim. Rep., 152. Prendergast, Judge, dissenting. 3. —Same—Insolvency of Bank—Insufficiency of the Evidence. Where, upon trial for receiving an illegal deposit in a bank, the evidence showed that the bank was thoroughly investigated at the time of its alleged insolvency, and that the bank officers, directors and attorneys were all of the opinion that the bank was solvent under the law at the time of the alleged deposit, and that the bank was solvent from the standpoint of its assets in excess of its liabilities. Held, that the State failed to prove insolvency of the bank. Prendergast, Judge, expressing no opinion. 4. —Same—Solvency—Evidence—Receiver—Insolvency. Where, upon trial of an illegal bank deposit, it was shown that the bank at the time of said deposit and at the time it closed its doors on the day alleged in the indictment was solvent, it was error to admit the testimony of the receiver long after said date as to the insolvency of said bank, and to admit in evidence his account of the condition of said bank, as this was not a criterion of its solvency. 5. —Same—Charge of Court—Insolvency—Railing Circumstances—Cash Value. Upon trial of illegally receiving a bank deposit, a charge of the court, that a bank is not insolvent or not in failing circumstances if it has sufficient assets realizable in cash value to meet its liabilities as they fall due in the ordinary .course of business, treating them as an ordinarily prudent person would ordinarily conduct his business, was reversible error. 6. —Same—Solvency—Requested. Charge. Upon trial of receiving an illegal bank deposit, it was reversible error not to submit a requested charge that if the jury had a reasonable doubt concerning the alleged bank, on the date of the alleged deposit, that it owned and held assets to pay its debts within a reasonable time, in the ordinary course of business under the conditions existing, then said bank was not insolvent or in failing circumstances within the meaning of the law. 7. —Same—Charge of Court—Insolvency—Railing Circumstances. Where, upon trial for receiving an illegal bank deposit, the court’s, charge presented the wrong criterion and 'gave erroneous instructions as to what insolvency means, and as to what in failing circumstances mean, and that the requested instructions presented the better and sounder rule, which the court refused to submit, there was reversible error. 8. —Same—Knowledge of Defendant—Insufficiency of the Evidence. Where, upon trial of receiving an illegal bank deposit, the evidence showed that the defendant knew nothing about said deposit and never heard of it until subsequent to the bank closing and after it had ceased to operate, the conviction could not be sustained. Prendergast, Judge, expressing no opinion. 9. —Same—Statutes Construed—Rraudulent Intent. In order to hold an officer of the bank criminally responsible under the law, there must he some evidence of fraud on his part, and in connection with the knowledge of the fact that the bank is insolvent there must be a purpose' on his part in receiving deposits to place the depositor in such position that he would thereby lose his money; and the Act of the Legislature in order to make it consistent with our criminal jurisprudence must be so construed, and words importing such construction must be read into said statutes. Prendergast, Judge, dissenting. 10.—Same—Change of Venue—Prejudice. Where, upon trial of receiving an illegal bank deposit, the evidence showed that the county of the prosecution was thoroughly canvassed by opposing candidates for office, and the matter, of defendant’s alleged dereliction was discussed from one end of said county to the other, and was made the turning point in said race for office, and whether defendant should be indicted, etc., a change of venue should have been granted.