63 Tex. Crim.

Volume 63 — Texas Criminal Reports

137 opinions

63 Tex. Crim. 1Kemper v. State (1911)
The defendant and the deceased were rival candidates for the office of constable at the time of the homicide, and much ill-feeling existed between them growing out of this circumstance and a former estrangement.
63 Tex. Crim. 50Jonhson v. State (1911)
63 Tex. Crim. 50Johnson v. State (1911)
Appeal from the Criminal District Court at Dallas. Tried below before the Hon. Bobt. B. Seay. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life.
63 Tex. Crim. 58Zunago v. State (1911)
1.—Murder—Death Penalty—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction of murder in the first degree assessing the death penalty, there was no error. 2. —Same—Evidence—Child Witness—Discretion of Court—Bill of Exceptions. Where, upon trial of murder, no abuse of discretion was shown in permitting a child witness of the age of nine years to testify for the State, there was no error; besides the bill of exceptions did not show what the testimony of this witness was. 3. —Same—English language—Practice in District Court. Where, upon trial of murder, defendant’s attorney offered a motion to the court, after the State and defendant had rested and before argument began, that the defendant was ignorant and unable to speak or understand the English language; that attorneys could not speak or understand his language, and that many witnesses had testified in the English language against him, and moved the court to strike out all this testimony, but failed to show that the court had been requested to furnish the attorneys an interpreter, and the testimony objected to was not of such a nature as to need translation for the defendant, there was no reversible error. 4. —Same—English language—Interpreter. While there is no statutory provision requiring that all pleadings and court proceedings shall be in the English language, yet this is necessary as a matter of course, and where a witness does not understand and speak the English language an interpreter must be sworn for him; and where upon trial for murder an interpreter was provided to translate the Spanish into English and vice versa the testimony admitted, there was no error. 5. —Same—Constitutional law—Confronting Witnesses. Upon trial of murder, where defendant’s counsel contended that the defendant could not speak or understand the English language, insisting that certain testimony submitted in the English language was not understood by the defendant, and that therefore he was not confronted by the witnesses against him as provided by the Constitution, the same was untenable and there was no error. 6. —Same—Indictment—Reasonable Creature in Being. Where the indictment, in a prosecution for murder, was in substantial compliance with the requisites of an indictment as prescribed by law the same was sufficient, and it was not necessary to allege that the deceased was a reasonable creature in being. 7. —Same—Argument of Counsel. Where no bill of exceptions was reserved to the argument of State’s counsel the same could not be considered on appeal. 8. —Same—Charge of Court—Erasures—Self-Defense. Where, upon trial of .murder, the issue of self-defense was not raised by the evidence, and the court gave a full and correct charge on the degrees of murder, manslaughter and reasonable doubt, and ran his pencil through a printed charge on self-defense in submitting his above charge, and also submitted accidental shooting, which was the theory of- the defense, there was no reversible error. 9. —Same—Verdict—Misspelling—Polling Jury. Where, upon trial of murder, the jury wrote the word jury “juor” there was no reversible error; besides the judgment shows that the jury were properly polled before the verdict was received. 10. —Same—Practice—Handcuffs. Where, upon appeal from a conviction of murder, the objection that the sheriff kept the defendant handcuffed, etc., during the progress of the trial, was not reserved by a bill of exceptions, the same could not be considered on appeal; however, such practice is condemned. [Rehearing denied June 23, 1911.—Reporter.]
63 Tex. Crim. 73Gaines v. State (1911)
1. —local Option—Conflict of Testimony. Where there is a sharp conflict of testimony as to whether the sale occurred, the matter is one of fact for the jury. 2. —Same—Continuance—Bill of Exceptions. Where a subsequent application for continuance failed to allege that the witness was not absent by defendant’s procurement or consent, the same was insufficient; besides there was no bill of exceptions reserved. 3. —Same—Evidence—Other Transactions. Where the evidence either showed a positive^sale or that the sale did not occur, and there was no question of intent, etc., it was error to permit the State to prove other transactions that other parties had carried whisky to appellant’s room. [Rehearing denied June 23, 1911.—Reporter.]
63 Tex. Crim. 75James v. State (1911)
The opinion states the case.
63 Tex. Crim. 81Wilson v. State (1911)
The opinion states the case.
63 Tex. Crim. 85McGowen v. State (1911)
The opinion states the case.
63 Tex. Crim. 86Hooper v. State (1911)
The opinion states the case.
63 Tex. Crim. 87Cain v. State (1911)
The opinion states the case.
63 Tex. Crim. 88Inabnit v. State (1911)
Burglary—Statement of Facts—Filing. Where the statement of facts Avas filed more than thirty days from the date of the final judgment, and the term of court lasted inore than eight Aveeks, the same could not he considered on appeal.
63 Tex. Crim. 89Ricen v. State (1911)
The opinion states the case.
63 Tex. Crim. 93Ex Parte Spiller (1911)
The opinion states the case.
63 Tex. Crim. 98Thomas v. State (1911)
The opinion states the case.
63 Tex. Crim. 100Hampton v. State (1911)
Tried below before the Hon. B. W. Simpson. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary.
63 Tex. Crim. 102Alexander v. State (1911)
1. —Murder—Charge of Court—Harmless Error—Article 723, Code Criminal Procedure. Where, upon trial of murder, there were no bills of exception to the evidence and no requested charges and the evidence showed either murder in the first degree or self-defense, and upon all of which the court submitted proper charges which were attacked in a general way in a motion for new trial, there was no reversible error under article 723, Code Criminal Procedure, even if there was some immaterial error. 2. —Same—Murder in the First Degree—Case Stated. Where, upon trial of murder, the defendant testified that he saw deceased and another coming up the road armed; that bad feeling existed between the parties; that he stepped to the side of the road fifteen or twenty feet behind a tree, set his Winchester down by the tree and with his shotgun in his hand, threw the safety off, ready to shoot; and the evidence further showed that he had been standing there for some time, etc., when he shot and killed deceased and his companion as they passed by, claiming self-defense, and there was no evidence to reduce the killing below murder in the first degree, and the court submitted both degrees of murder, manslaughter and self-defense, the conviction for murder in the first degree was sustained. 3. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence showed a case of murder in the first degree or self-defense, and did not raise the issue of manslaughter, yet the court charged on manslaughter, there was no reversible error. 4. —Same—Charge of Court—Manslaughter—Joint Attack. Where, upon trial of murder, the evidence showed that two persons were killed in the homicide by the defendant, and the defendant was indicted for the killing of one of them, and that this one was the only one of the two who made any demonstrations, if any at all, as if to shoot defendant, and there was no hostile word or act shown on the part of the other deceased, and the court in his charge on manslaughter charged upon this phase of the evidence, there was no error in the court’s failure to charge on a joint attack upon defendant; besides the issue of manslaughter was not raised. Davidson, Presiding Judge, dissenting. 5. —Same—Charge of Court—Self-Defense—Joint Attack—Threats. Where, upon trial of murder, the evidence showed the killing of two persons by the defendant, he being indicted for the killing of one of them, and the court submitted the issue of self-defense as to said one, but also charged the jury that if it reasonably appeared to defendant at the time of the killing that the said two persons were acting together viewed from the standpoint of the defendant, to acauit him, and also submitted the issue of communicated threats by the deceased, there was no error 'in the court’s failure to further charge on a joint attack or threats. Davidson, Presiding Judge, dissenting. 6. —Same—Charge of Court—Charge as a Whole. Where, upon trial of murder, the court submitted murder in the first and second degrees defining express and implied malice, and also manslaughter and self-defense, and applied the reasonable doubt between the different degrees of murder as well as between murder in the second degree and manslaughter, and to the presumption of innocence, when considered in its entirety, there was no error. 7. —Same—Charge of Court—Self-Defense—Relation of Parties. Where, upon trial of murder, the court in connection with his charge on self-defense instructed the jury to consider the relation of the parties, their relative size and strength, their previous conduct, and declarations or threats, if any, of the deceased, and all other circumstances, there was no error. Davidson, j?residing Judge, dissenting. 8. —Same—Charge of Court—Article 676, Penal Code—Deadly Weapon—Presumption. Where, upon trial of murder, the court instructed the jury that if it appeared to the defendant from any cause that his life was in danger, etc., he had the right to shoot the deceased, and that a deadly weapon is one which in the manner used is likely to produce death or serious bodily injury, and that if the deceased was in the act of making an unlawful attack upon defendant with a gun, etc., he should be acquitted, article 676, Penal Code, was substantially submitted and there was no error. Davidson, Presiding Judge, dissenting. 9. —Same—Charge of Court—Omission in Charge—Practice. Where, upon trial of murder, the court substantially submitted article 676, Penal Code, and the defendant asked no special instructions and did not reserve any exception thereto but complained of certain omissions in the charge for the first time in his motion for new trial, there was no error. Following Martin v. State, 25 Texas Grim. App., 557, and other cases. Davidson, Presiding Judge, dissenting.
63 Tex. Crim. 140Goodwin v. State (1911)
The State’s testimony showed that the prosecuting witness and others had started out hunting and heard an automobile coming behind them and stopped at the side of the road; that the defendant was driving the automobile at the rate of twenty-five or thirty miles an hour and, as he passed the hunting party, killed a valuable dog; that this was about seven o’clock in the evening, about dark, in the country; that they had no way of measuring the speed except by estimate; that…
63 Tex. Crim. 143Hargrove v. State (1911)
The opinion states the case.
63 Tex. Crim. 147Battles v. State (1910)
1. —Rape—Evidence—Marriage—Intent. Upon trial of rape upon a female under the age of consent, there was no error to admit testimony that the defendant was a married man at the time of the act of sexual intercourse, to show that defendant’s attentions and conduct towards the prosecutrix were inconsistent with an innocent purpose. 2. —Same—Evidence—Acts of Intimacy. Upon trial of rape on a female under the age of consent, there was no error to admit in evidence defendant’s attention, visits, journeys with the prosecutrix and purchases for her, both before and after the act of sexual intercourse. 3. —Same—Charge of Court—Argument of Counsel—Evidence. Where, upon trial of rape, the court correctly submitted the law and there was no error in the argument of State’s counsel and admission of evidence, the conviction was sustained; the evidence being sufficient. 4. —Same—Evidence—Bills of Exception. Where, upon trial of rape, there were no bills of exception to certain testimony as to acts of intimacy between the parties, the same could not be considered on appeal; besides, the testimony was admissible. 5. —Same—Evidence—Acquaintance—Familiarity. Upon trial of rape on a female under age of consent, acts of acquaintance and familiarity between the parties are admissible as tending to show likelihood and opportunity on the part of the defendant to commit the offense, even though conclusions may be drawn therefrom that other acts of intercourse took place. Overruling Ball v. State, 44 Texas Crim. Rep., 489, 72 S. W. Rep., 384; Smith v. State, 44 Texas Crim. Rep., 137, 73 S. W. Rep., 401; Barnett v. State, 44 Texas Crim. Rep., 592, 73 S. W. Rep., 399; Hackney v. State, 74 S. W. Rep., 554; Henard v. State, 46 Texas Crim. Rep., 90, 79 S. W. Rep., 810; Smith v. State, 74 5. W. Rep., 556. Davidson, Presiding Judge, dissenting. 6. —Same—Evidence—Other Acts oí Intercourse—Rule Stated—loco Parentis. In prosecutions of rape on a female under the age of consent, all acts and conduct that can be considered and that were intended as an inducement to render the accomplishment of defendant’s purpose possible are admissible in evidence; and where the defendant stands in loco parentis, etc., to such female and obtains sexual intercourse by reason thereof all acts of sexual intercourse are admissible in evidence which occurred prior to the one for which defendant is being tiled; the court properly limiting such evidence to the purpose for which it is admitted. See opinion for discussion of admitting other acts of sexual intercourse. Davidson, Presiding Judge, dissenting. 7. —Same—Evidence—Circumstances. Upon trial of rape, where prosecutrix had testified that the act of intercourse took place in a creek bottom at night, there was no error in admitting testimony of a State’s witness that he had seen defendant and a woman in a buggy at the time and place fixed by the prosecutrix. 8. —Same—Evidence—Handwriting. Where, upon trial of rape, the court admitted in evidence expert testimony as to the identity of the handwriting of a certain letter, and properly submitted a charge thereon to the jury, there was no reversible error. 9. —Same—Evidence—letters—Comparison. Where, upon trial of rape, the defendant introduced a letter in evidence which he claimed was written by the prosecutrix, but signed in a different name, there was no error to permit prosecutrix to write the name which was fixed to said letter for comparison. 10. —Same—Accomplice. Upon trial of rape on a female under the age of consent, the prosecutrix can not be an accomplice. 11. —Same—Charge of Court—Argument of Counsel. Where the argument of State’s counsel was in response to remarks by appellant’s counsel, and the court had submitted a requested instruction thereon, there was no error in refusing another requested charge thereon.
63 Tex. Crim. 176Richards v. State (1911)
The opinion states the case.
63 Tex. Crim. 180Wagoner v. State (1911)
1. —Swindling—Statement of Facts—Felony—Misdemeanor. The County Court in misdemeanor cases can not grant a longer time than twenty days in which to file statement of facts and hills of exception, and they must be copied in the record. The stenographic Act provides that in felony cases from the District Court the original statement of facts must be seiit up. Following Moshier v. State, 62 Texas Crim. Rep., 42, and other cases. 2. —Same—Indictment—Precedent. Where the indictment for swindling follows the statute and complies with approved precedent, the same is sufficient. 3. —Same—Charge of Court—Misdemeanor. In misdemeanor cases the Appellate Court can not reverse on objections to the charge of the court, unless excepted to and correct charges are requested and refused by the court below. 4. —Same—Practice on Appeal. In the absence of a statement of facts, the indictment being sufficient and the charge of the court submitting correct issues thereunder, there was no reversible error. [Rehearing denied November 8, 1911.—Reporter.]
63 Tex. Crim. 181Haynes v. State (1911)
1. —Keeping Disorderly House—Intoxicating Liquors—Licence—Recognizance. Where, upon appeal from a conviction for keeping a disorderly house, the recognizance failed to state the amount of the punishment inflicted, the same was insufficient; however, upon the filing of a proper recognizance, the appeal was reinstated. 2. —Same—Statement of Facts—Filing. Where the statement of facts was filed twenty days after the adjournment of the County Court, and not within said time, the same could not be considered on appeal. 3. —Same—Information—Repeal—Vagrancy Act. The Act of 1907, p. 246, was not repealed by the Vagrancy Act of 1909, p. Ill, and there was no error in overruling the motion to quash on this ground. Following Parshall v. State, 62 Texas Crim. Rep., 177. 4. —Same—Information—Felony. Upon trial of keeping a disorderly house, there was no error in overruling a motion to quash on the ground that the disorderly house statute conflicted with the Act of 1909, pp. 284 and 356.
63 Tex. Crim. 183Smith v. State (1911)
1. —Rape—Indictment—Term of Court. Where, upon trial of rape, the indictment was found during the proper term of the District Court, there was no error in overruling defendant’s motion to quash on this ground. Following Nobles v. State, 57 Texas Grim. Rep., 307, and other cases. 2. —Same—Name of Injured Party—Idem Sonans. Upon trial of rape, there was no error in overruling objections that the prosecutrix’ name was Hable and not “Maple.” These names are idem sonans. Following Salinas v. State, 39 Texas Crim. Rep., 319, and other cases. 3. —Same—Evidence—Expert Testimony. Upon trial of rape, there was no error in admitting testimony of a witness that he examined the prosecutrix and found that she was prematurely developed, etc.; besides, the bill of exceptions was defective. 4. —Same—Evidence—Age of Prosecutrix—Conclusion of Witness. Upon trial of rape, there was no error to exclude a defendant’s witness’ best judgment as to the age of the prosecutrix; besides, the bill of exceptions was defective, 5. —Same—Evidence—Letter. Upon trial of rape, there was no error in excluding testimony as to the contents of 'a letter, where no predicate was established. 6. —Same—Evidence—Letter. Upon trial of rape, there was no error in excluding testimony as to the contents of a letter with reference to the age of the prosecutrix, as no proper predicate had been laid. 7. —Same—Hearsay Evidence. Upon trial of rape, there was no error in excluding purely hearsay evidence as to the age of the prosecutrix; besides, the bill of exceptions was defective. 8. —Same—Verdict—Words and Phrases. Upon trial of rape, there was no error in having the jury correct the spelling of the word “punishment” in the presence of the court. 9. —Same—Sufficiency of the Evidence. Where, upon trial of rape, the evidence was sufficient to sustain the conviction, there was no error. [Rehearing denied November 39, 1911.—Reporter.]
63 Tex. Crim. 189Lacy v. State (1911)
It appears from the testimony that, while the defendant and his wife were separated, he maintained illicit relatipns with one. Tebe Galloway, and that after a reconciliation with his wife, and their living together, a certain letter written by the said Galloway to defendant fell into the hands of defendant’s wife, causing some domestic trouble between defendant and his wife; that defendant, after making some inquiry as to who was responsible for the letter, left his farm and went to the town of Mabank, taking his shotgun with him, and was seen in Mabank inquiring for the deceased, and that he was standing behind the livery stable at the shop when deceased and another were coming towards town walking along side by side; that the deceased had his hands in his pocket, and he and his companion appeared to be just walking along talking; that defendant called deceased up to him, the latter still having his hands in his pocket, when defendant picked up his shotgun which wais tying nearby, and shot the deceased, killing him; that the deceased was not doing anything just before defendant shot him, but was just walking towards defendant after the latter had called him; that there was but little conversation between the two. The deceased was unarmed at the time. The defendant testified that he called the deceased to him to have an explanation from him about the letter, and wanted him to go to his wife, who was angry about it, and pacify her; that when deceased came up toward the defendant he said: “I see you have got your gun; what are you going to do with it?” starting across the road toward defendant, and that defendant, believing that deceased had a pistol and was going to hurt him, reached for his shotgun and killed deceased.
63 Tex. Crim. 194Ward v. State (1911)
The opinion states the case.
63 Tex. Crim. 200Bryan v. State (1911)
Leaving out formal parts, the indictment charged that the defendant did unlawfully marry in the County of Dallas in the State of Texas, and had for his wife one Laura Russey, and while the said Laura Russey was living did, in the County of Dallas and State of Texas, on the 22d day of November, A. D. 1907, mlairry and have for his wife one Minnie Robison, and afterwards on the 22d day of November, A. D. 1907, did unlawfully and feloniously have both the said Laura Russey and…
63 Tex. Crim. 207Webb v. State (1911)
1. —Disturbing Religious Worship—Indictment. Where it appeared on appeal that some one put in pencil opposite the several counts in the indictment the numbers thereof, there was no reversible error, no injury having been shown. 2. —Same—Charge of Court—Misdemeanor. In misdemeanor cases, unless the record shows that the appellant excepted to the charges of the court and requested special charges, the same can not be considered on appeal. 3. —Same—Charge of Court—Harmless Error. Where the failure of the court to charge on a certain count in the indictment operated in favor of the defendant, there was no reversible error. 4. —Same—Charge of Court—Burden of Proof. Where, upon trial for disturbing religious worship, the court’s charge was not on the burden of proof or the weight of the evidence, there was error; besides, defendant did not except or submit special charges. 5. —Same—Sufficiency of the Evidence. Where, upon trial of disturbing religious worship, the evidence sustained the conviction, there was no error. 6. —Same—Evidence—Animus—Contradicting Witness. Where, upon trial of disturbing religious worship, the testimony objected to was admitted for the purpose of showing the animus of defendant, and to disprove his contention that the disturbance was not wilfully done, there was no error. 7. —Same—Bills of Exception. Where the bills of exception failed to show what the testimony was or the status thereof, there was nothing to review on appeal.
63 Tex. Crim. 212Robinson v. State (1911)
1. —Swindling—Indictment—Deed of Trust—Trustee. Where, upon trial of swindling, the objection was that the indictment showed that by the deed of trust the money was paid by the trustee to the defendant and not by the beneficiary, there was no error to overrule the motion to quash, the instrument reciting that it was executed to secure a note due and payable to the beneficiary. 2. —Same—Evidence—Variance. Where the mortgage was set out in the indictment in haee verba, there was no error in admitting it in evidence on a trial of swindling. 3. —Same—Evidence—Trustee—Beneficiary. Upon trial of swindling, there was no error to permit the beneficiary named in the deed of trust set out in the indictment to testify that he was induced to loan defendant the money on the latter’s representation that he was the owner of the property described in the deed of trust; and this, although the deed of trust was made to a trustee for the beneficiary. 4. —Same—Evidence—Variance. Upon trial of swindling there was no error in admitting testimony that the beneficiary in the alleged deed of trust, at the request of the defendant, paid so much to the hank in discharge of the defendant’s indebtedness, and the remainder to defendant. 5. —Same—Evidence—Money—Books—Checks. Upon trial of swindling, there was no error in permitting the party injured to testify that he had money in the bank upon which he gave defendant checks; without introducing the books of the bank. 6. —Same—Conduct of District Attorney. Where defendant objected to testimony which was admissible, there was no error to permit the district attorney to state and give his reasons why he thought the same was admissible. 7. —Same—Evidence—Settlement. Upon trial of swindling, there was no error in refusing to admit testimony as to a settlement between the defendant and the party injured, after the offense had been committed; besides, it appears from the record that such testimony was admitted. 8. —Same—Variance—Money—Checks. Where the indictment alleged, in a prosecution for swindling, that the defendant obtained money on false representation, describing it as current money of the United States of America, there was no variance where the proof showed that the defendant received checks for the money and obtained same thereon. [Rehearing denied October 11, 1911.—Reporter.]
63 Tex. Crim. 216Robertson v. State (1911)
The opinion states the case.
63 Tex. Crim. 258Sanders v. State (1911)
1. —Murder—Motion for New Trial—Bill of Exceptions. Where, upon appeal from a conviction for manslaughter, it appeared from the qualification of appellant’s bill of exceptions that the testimony objected to in the lower court was brought out by the defendant, and there was no showing in said bill pointing out the objections to the testimony, and the same was not approved by the judge, there was no error: besides, the motion for a new trial was too general. 2. —Same—Sufficiency of Evidence. Where, upon trial of murder, the defendant was convicted of manslaughter, which was supported by the evidence, although conflicting, there was no reversible error.
63 Tex. Crim. 260McDaniel v. State (1911)
The opinion states the case.
63 Tex. Crim. 263Beauchamp v. State (1911)
The opinion states the case.
63 Tex. Crim. 266Springer v. State (1911)
The opinion states the case.
63 Tex. Crim. 268Robertson v. State (1911)
The opinion states the case.
63 Tex. Crim. 270Reynolds v. State. (1911)
1. —Simple Assault—Sufficiency of the Evidence. Where, upon trial of assault, the evidence showed that the defendant by going on to the premises under the control of the prosecutor against the latter’s . will was the primary cause of the difficulty which thereafter arose between them, he could not sustain his plea of self-defense, although the facts attendant upon the difficulty might justify his course at that time, and there was no error. 2. —Same—Charge of Court—Self-Defense. Where the defendant’s requested charge on self-defense on trial of simple assault was given to the jury, he could not complain of the court’s main charge on this issue. 3. —Same—Charge of Court—Misdemeanor. In misdemeanor cases, unless the charge of the court is excepted to and special instructions are requested, the matter can not be revised on appeal. Following Dunbar v. State, 34 Texas Crim. Rep., 596, and other cases. "4.—Same—Evidence—Voices. Where the witness testified that, while she would not positively swear that she recognized the parties by their voices, but that from her knowledge of them and their voices she believed it was they talking, there was no error in permit ting her to testify to the language she heard in connection with the difficulty. [Rehearing denied October 11, 1911.—Reporter.]
63 Tex. Crim. 272Alinis v. State (1911)
The opinion states the case.
63 Tex. Crim. 274Ex Parte Stephenson (1911)
Habeas Corpus—Bond—Custody. Pending an appeal on habeas corpus the relator must remain in custody, and where relator filed an appeal bond, his appeal must be dismissed. Following ex parte Branch, 36 Texas Grim. Rep., 384, and other cases.
63 Tex. Crim. 275Noland v. State (1911)
The opinion states the case.
63 Tex. Crim. 275Ex Parte Northern (1911)
Habeas Corpus—Statement of Facts. Where no statement of facts is contained in the record from an appeal on habeas corpus proceedings, the presumption is in favor of the correctness of the ruling of the lower court.
63 Tex. Crim. 280Ex Parte Robertson (1911)
Habeas Corpus—Bail. Where there is no statement of facts, or evidence in the record sustaining the relator’s petition to the Court of Criminal Appeals, the application must be refused.
63 Tex. Crim. 281Ex Parte Wilson (1911)
Habeas Corpus-—Extradition—Fugitive from Justice. Where it appeared from the evidence that relator was brought from Mexico to the United States, and was there arrested by Texas officers on an extradition warrant based upon an indictment pending in the State of Nevada, but it further appeared that the Texas officers had no connection in forcing the relator upon Texas soil, the fact that citizens of Mexico had brought relator across the boundary line by force was no ground for his release under habeas corpus proceeding in 'the District Court of El Paso, Texas. Following Brookin v. State, 26 Texas Crim. App., 121, and other cases.
63 Tex. Crim. 283Fields v. State (1911)
Tried below before the Hon. B. W. Simpson. Appeal from a conviction of aggravated assault; penalty, a fine of $50.
63 Tex. Crim. 285Ex Parte Savage (1911)
From Lamar County. Original habeas corpus proceedings asking release from arrest under a city ordinance with reference to billboards and billposting. The opinion states the case.
63 Tex. Crim. 297Patterson v. State (1911)
The opinion states the case.
63 Tex. Crim. 312Conger v. State (1911)
The opinion states the case.
63 Tex. Crim. 339Leech v. State (1911)
1. —Murder—Grand Jury—Indictment. Where appellant did not claim or show that he would or could have successfully challenged either the array or any of the grand jurors participating in the consideration or return of the indictment against him, or that he was injured by the fact that the grand jury was excused by the court for a week or such matter before the indictment was found and that only ten of them returned the bill, there was no reversible error. 2. —Same—Evidence—Threats. Upon trial of murder, there was no error in admitting evidence of threats made by the defendant some three and one-half years previous to the killing, but which had been continued from time to time until shortly before the homicide. 3. —Same—Argument of Counsel. Where, upon trial of murder, State’s counsel traveled outside of the record in his argument to the jury, but the court, immediately reprimanded such conduct of counsel, and thereupon offered to withdraw the objectionable argument from the jury, but counsel for the defendant stated to the court that they did not desire a written charge on this matter, there was no reversible error. 4. —Same—Charge of Court—Express Malice. Where, upon trial of murder, the court in his charge taken as a whole properly submitted the issue of murder in the first degree, and the objection thereto was of a general character, there was no reversible error. 5. —Same—Charge of Court—Article 723. Where, upon trial of murder, the court submitted every issue raised by the evidence by proper charge, there was no error in refusing special instructions, and under Article 723 of the Code of Criminal Procedure, there was no reversible error. [Rehearing denied October 18, 1911.—Reporter.]
63 Tex. Crim. 351Jackson v. State (1911)
1. —Murder—Race Discrimination—IT. S. Supreme Court. Where, upon appeal from a conviction of murder, the cause was reversed on other grounds, and the question of race discrimination was not fully developed in the court below, the same will not be considered; but the State courts are bound by the decisions of the United States Supreme Court. 2. —Same—Change of Venue—Bill of Exceptions. Where the question of change of venue is not presented by proper bill of exceptions, it can not be considered on appeal. 3. —Same—Charge of Court—Defensive Matter. It is not essential, in the court’s charge of murder in the first degree, that the court should give in a negative way the defenses of the accused. 4. —Same—Charge of Court—Murder in the Second Degree—Manslaughter. Where the evidence raised the issue of manslaughter, the court in his charge on murder in the second degree should have charged the jury as to what constitutes this degree of murder, with reference to any lesser degree of homicide. 5. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence raised the issue of manslaughter, the court should have charged thereon. 6. —Same—Self-Defense—Threats. Where the court’s charge on self-defense was too general, it was reversible error not to submit requested charges which properly applied the law to the issue of self-defense and threats. 7. —Same—Evidence—Manslaughter. Upon trial of murder, it was reversible error to refuse to admit testimony to show that the defendant, at the time of the homicide, was very much excited and feared an attack by the deceased. 8. —Same—Evidence—Third Parties. Upon trial of murder, there was no error in refusing to admit testimony of ill-feeling existing between the deceased and a third party for failing to pay rent to the latter. 9. —Same—Evidence—Dying Declarations. Upon trial of murder, it was reversible error to admit in evidence the declaration of the wife of the deceased that she kissed her husband shortly before he died, and that he requested her to kiss him “good-bye,” etc., as this was no part of the dying declaration 10. —Same—Evidence—Clothes of Deceased. Where the introduction in evidence of the clothes of deceased, which he wore when he was shot, was to show the position of his gun at the time, and that defendant fired-the first shot, there was no error. 11. —Same—Evidence—Declaration of Third Parties. There was no error to- exclude the testimony of defendant’s father of what defendant told him when he first saw him, some time after the killing. 12. —Same—Argument of Counsel—Death Penalty. It is legitimate for State’s counsel to insist upon the infliction of the death penalty, where the evidence justifies it, but he must confine himself to the record, 13. —Same—Charge of Court—Threats. Where the evidence raised the issue of threats by deceased against the defendant, the court correctly charged thereon. [Rehearing denied October 18, 1911.—Reporter.]
63 Tex. Crim. 359McDaniel v. State (1911)
Appeal from the District Court of Lamar. Tried below before the Hon. Ben H. Denton. Appeal from a conviction of assault to murder; penalty, two years imprisonment in the penitentiary. The testimony of the chief State’s witness was in substance; that he and defendant met in the prosecutor’s field while the latter was plowing, and that the defendant accused him of telling a lie on him; that they had had some words about some fish, which defendant had sent prosecutor, and which were unsatisfactory to the latter; that when the prosecutor denied having told a lie on defendant, the latter pulled out his pistol and fired at the prosecutor and one shot hit him in the back of the neck, felling him to the ground; that prosecutor had nothing but his pipe in his hand and was unarmed at the time. The appellant claimed that prosecutor had made an attack upon him and that he acted in self-defense.
63 Tex. Crim. 361Sandifer v. State (1911)
1. —Assault to Murder—Recognizance—Custody. Where, upon appeal from a conviction of a misdemeanor, there was no recognizance in the record, nor did it appear therefrom that appellant was in custody, the appeal must be dismissed. 2. —Same—Statement of Facts—Filing—Transcript. Statement of facts must not be filed back, and the transcript of the record of the case must be promptly filed in the Appellate Court. [Rehearing denied October 18, 1911.—Reporter.]
63 Tex. Crim. 362Melton v. State (1911)
The opinion states the case.
63 Tex. Crim. 366Dowling v. State (1911)
The opinion states the case.
63 Tex. Crim. 370Carney v. State (1911)
Tried below before the Hon. Joe Irby. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100. The opinion states the case.
63 Tex. Crim. 371Alinis v. State (1911)
The opinion states the case.
63 Tex. Crim. 373Robinson v. State (1911)
1. —Theft—Evidence—Value. Upon trial of theft of and over the value of $50, there was no error in permitting the opinion of an expert as to the value of the bicycle alleged to have been stolen; and where the witness expressed the opinion that he thought the same was worth something like $50, there was no error to exclude the answer of the witness to the question that if the bicycle had been placed in the witness’ store, and priced, at $50, whether the same would find a purchaser. 2. —Same—Charge of Court—Circumstantial Evidence—Felony—Misdemeanor. Where the court in his charge properly submitted the issue of circumstantial evidence and also the question of felony and misdemeanor theft, and properly applied the reasonable doubt as between the two offenses, etc., the jury could not have been misled, and a verdict for felony theft is sustained. 3. —Same—Charge of Court—Purchase. Where, upon trial of theft, the charge of the court properly submitted to the jury the defendant’s claim of purchase, there was no reversible error.
63 Tex. Crim. 374Burton v. State (1911)
Burglary—Escape—Practice on Appeal. Where, pending an appeal, appellant made Ms escape and did not voluntarily return within ten days, the appeal must be dismissed.
63 Tex. Crim. 375Morris v. State (1911)
1. —Local Option—Selling Intoxicating Liquors—Statement of Pacts. Where the statement of facts was not filed within twenty days after the adjournment of the County Court, the same must be stricken from the record on motion of the State. 2. —Same—Stenographer’s Act—Practice—Statutes Construed. The Stenographer’s Act of the Thirty-First Legislature does not apply to criminal cases in the County Court. As to statement of facts in criminal cases tried in the District Court, the statement of facts must be filed in duplicate and the original sent up with the record; in the County Court, the same must be copied in the transcript.
63 Tex. Crim. 377Catron v. State (1911)
1. —Murder—Withdrawing Appeal. An application to withdraw notice of appeal must be made by the appellant in person and must be sworn to by him. 2. —Same—Bill of Exceptions—Venire. Where no bill of exceptions was reserved to the court’s refusal to quash the venire, the matter could not be considered on appeal. 3. —Same—Charge of Court—Statement of Facts. In the absence of a statement of facts, it will be presumed that the court’s charge presented the law applicable to the facts. 4.—Same—Verdict—Correction. Where the court caused misspelling of words in the verdict to be corrected before the discharge of the jury, there was no error.
63 Tex. Crim. 377Ex Parte Kirby (1911)
The opinion states the case.
63 Tex. Crim. 379Ex Parte Dena and Acosta (1911)
From Bexar County. Original habeas corpus proceeding asking release on an oral commitment for contempt of court in the District Court.
63 Tex. Crim. 380Ex Parte Eugene (1911)
From Bexar County. Original habeas corpus proceedings asking release from oral commitment in jail for contempt of court.
63 Tex. Crim. 382Stephens v. State (1911)
The opinion states the case.
63 Tex. Crim. 394Jones v. State (1911)
1. —Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction, there was no error. 2. —Same—Evidenpe—Bills of Exception. Where, upon trial of murder, the bills of exception, in the record on appeal, with reference to the admission of testimony and the questions propounded by the district attorney, were either defective or explained by the judge, there was no reversible error. Following James v. State, 62 Texas Crim. Rep., 610, and other cases, 3. —Same—Evidence—Name of Defendant—Bill of Exceptions—Motion for New Trial. Where, upon trial of murder, no exceptions were taken during the trial to the testimony that defendant went under an alias, it was too late to raise and present this question on motion for new trial; besides, no injury was shown. 4. —Same—Jury and Jury Daw—Name of Juror. Where, upon trial of murder, defendant complained in his motion for new trial that one of the jurors had a different name than appeared on the jury list of the special venire with which he had been served, and it appeared from the record on appeal that the defendant’s counsel was well acquainted with said juror and heard the name of the juror read when the verdict was brought in, etc., the objection came too late in his motion for new trial; besides, no injury was shown. 5. —Same—Argument of Counsel. Where, upon appeal from a conviction of murder, the court’s qualification to the bill of exceptions, with reference to the argument of State’s counsel, showed that the remarks complained of were either not made or, if made, no injury accrued to the rights of defendant, there was no error; besides-, no charges were requested to withdraw the same. 6. —Same—Charge of Court—Murder in the First Degree. Where defendant was convicted of murder in the second degree, he could not complain of the court’s charge on murder in the first degree. 7. —Same—Charge of Court—Harmless Error—Words and Phrases. W|here, upon trial of murder, the court in his charge on murder in the second degree used the words “in a passion aroused without adequate cause” inadvertently, the evidence not raising such a question, the error was harmless, as it placed a greater burden on the State than required, and under Article 723, Code of Criminal Procedure, there was no error. Following Combs v. State, 52 Texas Crim. Rep., 613. 8. —Same—Charge of Court—Principals. Where, upon trial of murder, the evidence showed that the defendant acted with another in the commission of the offense, there was no error in submitting the law of principals. 9. —Same—Charge of Court—Means Used. Where, upon trial of murder, the court submitted to the jury the different means used by the defendant in committing the offense, there was no error. 10. —Same—Charge of Court—Principals—Article 723. The proper construction of article 723, Code Criminal Procedure, as it now stands, does not authorize the Court of Criminal Appeals to reverse a judgment even though there may be some technical omissions or commissions in the court’s charge, and where, upon trial of murder, the court submitted the law of principals as applied to the facts, and no charge was requested on this subject, there was no reversible error. 11. —Same—Charge of Court—Accomplice. Where, upon trial of murder, the evidence did not show that the State’s principal witness was an accomplice in the killing of her child, but the court nevertheless submitted a proper charge on the question of accomplice as to her testimony, there was no error in refusing requested charges that she was an accomplice. [Rehearing denied December 13, 1911.—Reporter.]
63 Tex. Crim. 416Johns v. State (1911)
1. —Assault to Murder—Evidence—Confessions—Bill of Exceptions. Where; upon appeal from a conviction of assault'to murder, the bill of exceptions did not contain the confession admitted in evidence, the same could not be considered; besides, the confession was admissible. Following Burton v. State, 02 Texas Grim. Rep., 402, and other cases. 2. —Same—Charge of Court—Age of Defendant. Where, upon trial of assault to murder, the evidence showed that the defendant was over fourteen years of age at the time the offense was committed, the contention that, under Article 34, Penal Code, he could not be convicted, was not tenable. 3. —Same—Constitutional law—Juvenile Defendant. The provision of law for the incarceration of defendants under sixteen years in the reformatory, etc., is constitutional. 4. —Same—Charge of Court—Principals—General Objection. Where no errors were pointed out in the court’s charge on the law of principals, the same was too general; besides, under Article 723, Code Criminal Procedure, there was no error. 5. —Same—Newly Discovered Evidence—Age of Defendant. Where, upon motion for new trial, no proper diligence was shown why the alleged newly discovered evidence, with reference to defendant’s age, was not procured before trial, there was no error. [Rehearing denied November 29, 1911.—Reporter.]
63 Tex. Crim. 420Ellington v. State (1911)
The opinion states the case.
63 Tex. Crim. 424Ellington v. State (1911)
1. —Theft of Cattle—Charge of Court—Fraudulent Taking. Where the court defined fraudulent taking in the language of the statute, there was no error in the absence of requested instructions. 2. —Same—Charge of Court—Invited Error. Where the court charged the jury on request of defendant’s counsel not to consider certain counts in the indictment, there was no error in the court’s failure to charge on such counts; as this was invited error, if error at all. 3. —Same—Charge of Court—Circumstantial Evidence. Where the objection to the court’s charge on circumstantial evidence did not point out any error, it could not be considered; besides, there was no error. 4. —Same—Evidence—Bill of Exceptions. Where there was no bill of exceptions to the evidence objected to, the same can not be considered on appeal. 5. —Same—Sufficiency of the Evidence—Requested Instructions. When the evidence was sufficient to sustain the conviction, and the requested instructions were covered in the main charge, there was no error. 6. —Same—Practice on Appeal. Matters complained of in the brief which are not reserved by bills of exception or motion for new trial, can not be considered on appeal. [Rehearing denied November 29, 1911.—Reporter.]
63 Tex. Crim. 426Ellington v. State (1911)
1. —Theft of Cattle—Continuance—Want of Diligence. Where the subpoena was issued in a different ease and not in the instant case, there was no error in overruling the motion for continuance for want of diligence. 2. —Same—Evidence—Bill of Exceptions. Where no bill of exceptions was reserved to the admission of testimony, there was nothing to review on appeal. 3. —Same—Charge of Court—Principals. Where the objection to the court’s charge on principals did not point out the error, the same could not be considered; besides, there was no error. [Rehearing denied November 29, 1911.—Reporter.]
63 Tex. Crim. 427Ellington v. State (1911)
1. —Theft of Cattle—Jury and Jury law—Bill of Exceptions. Where, upon appeal, it appeared that no bill of exceptions was reserved to the selection of a jury at the time, the same came too late in a motion for a new trial. 2. —Same—Evidence—Bill of Exceptions. In the absence of a bill of exceptions, objections to evidence can not be considered on appeal. 3. —Same—Charge of Court—Weight of Evidence. Where, upon trial of theft of cattle, the court’s charge did not assume the facts submitted, the same was not on the weight of evidence. 4. —Same—Charge of Court—Principals—Practice on Appeal. Where the objection to the court’s charge on principals was that it was misleading and confusing and calculated to prejudice the rights of the defendant, and was not a correct definition of principals, the same was too general to be considered on appeal, and under article 723, Code Criminal Procedure, an omission in the charge in describing who are principals was not reversible error. 5. —Same—Sufficiency of Evidence. Where, upon trial of theft of cattle, the evidence sustained a conviction, there was no error.
63 Tex. Crim. 429Wright v. State (1911)
1. —Local Option—Sufficiency of the Evidence. , Where, upon trial of a violation of the local option law, the evidence sustained a conviction, there was no error. 2. —Same—Indictment. Where the indictment clearly charged the offense, an objection that it was vague and uncertain was correctly overruled. 3. —Same—Indictment—Date. Where the indictment charged that the election for local option was held on a certain date, an objection that it did not specifically charge a date was not well taken. 4. —Same—Evidence—Bill of Exceptions. Where the district attorney asked the defendant’s witness, who had been talking to him to get him to leave the country, etc., which he answered in the negative, there was no error; besides, the bill of exceptions was insufficient. 5. —Same—Evidence—Bill of Exceptions. Where the district attorney asked defendant’s witness whether he was not hiding when the sheriff came to subpoena him, which he answered in the negative, there was no error; besides, the bill of exceptions was insufficient. 6. —Same—Evidence—Bill of Exceptions. Where the district attorney asked the defendant’s witness whether he had had any luck boot-legging, which he answered in the negative, there was no error; besides, the bill of exceptions was insufficient. 7. —Same—Evidence—Bill of Exceptions. Where the district attorney asked defendant’s witness whether he had not sold whisky about the time defendant was alleged to have sold it, which witness answered in the negative, there was no error; besides, the bill of exceptions was insufficient. 8.—Same—Evidence—Moral Turpitude. Upon trial of a violation of a local option law, where defendant sought to impeach State’s witness by showing that he had been guilty of moral turpitude by committing various misdemeanors which did not involve moral turpitude, there was no error in excluding such testimony; besides, defendant would, have been concluded by the answer of the witness from impeaching him. 9. —Same—Evidence—Self-Serving—Bes Gestae. Where, upon trial of a violation of a local option law, the defendant offered self-serving testimony, which was not res gestae, there was no error in excluding it. 10. —Same—Evidence—Impeachment. Where, upon trial of a violation of the local option law, the defendant asked the, State’s witness whether he had not been arrested for highway robbery, there was no error in sustaining an objection thereto, as it was not shown that the witness had been indicted therefor; besides, the bill of exceptions was insufficient. 11. —Same—Buie Stated—Impeachment of Witness—Complaint—Indictment— Arrest. Where a party is charged by complaint only, and sufficient time has elapsed for an indictment and none lias been preferred, the mere fact of the arrest of the party on a complaint is not legal testimony to go to his impeaclunent. Distinguishing Hunter v. State, 59 Texas Crim. Eep., 449; Jones v. State, 44 Texas Crim. Rep., 405, and other cases. 12. —Same—Argument of Counsel—Bill of Exceptions. Where State’s counsel commented on the testimony of the witnesses, he was within the record, and there was no error; besides, the bill of exceptions was insufficient. [Rehearing denied November 29, 1911.—Reporter.]
63 Tex. Crim. 438Franklin v. State (1911)
The opinion states the case.
63 Tex. Crim. 440Millican v. State (1911)
The opinion states the case.
63 Tex. Crim. 453Davis v. State (1911)
The opinion states the case.
63 Tex. Crim. 457Johnson v. State (1911)
1. —local Option—Charge of Court—Agency. Where, upon trial of a violation of the local option law, the evidence raised the issue that the defendant was acting as the agent of the alleged purchaser of the intoxicating liquors, and was not interested in the sale, the court should have submitted this issue. 2. —Same—Name of Defendant—Variance. Where the information alleged that defendant’s name is Bird, describing him, and the court submitted in his charge that the defendant’s name is Byrd Johnson, and there is nothing in the record to show that appellant is the man who is charged in the information, there is a substantial variance.
63 Tex. Crim. 460Teel v. State (1911)
The opinion states the case.
63 Tex. Crim. 464Parker v. State (1911)
The opinion states the case.
63 Tex. Crim. 465Johnson v. State (1911)
The opinion states the case.
63 Tex. Crim. 470McKinney v. State (1911)
Burglary—Evidence—Consent—Leading Questions. Where it developed upon trial of burglary that the defendant was the grandchild of the wife of the party injured, and defendant claimed that he entered the house alleged to have been burglarized with the consent of the said grandmother, it was reversible error not to permit the defendant to ask the said grandmother whether defendant had authority or permission to go to said house and to enter it; these were not leading questions, nor was the answer thereto that the defendant had such permission, a conclusion of the witness.
63 Tex. Crim. 473Brogdon v. State (1911)
1. —Carrying Pistol—Statement of Facts. Where, upon appeal from a conviction of unlawfully carrying a pistol, it appeared that the statement of facts was not filed within the time allowed by law, the same must be stricken out on motion of the State. 2. —Same—Filing—Information. A delivery of the complaint and information to the clerk was a filing thereof in law, and there was no error in the court permitting the clerk to place the correct file marks on the papers. 3. —Same—-Charge of Court—Circumstantial Evidence. Where the evidence was positive there was no error in the court’s failure to submit a charge on circumstantial evidence. 4. —Same—Evidence—Res Gestae. Upon trial of unlawfully carrying a pistol, there was no error in admitting in evidence the language the defendant used at the time he drew his pistol. 5. —Same—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol,■ the evidence sustained the conviction, there was no error.
63 Tex. Crim. 475Brogdon v. State (1911)
1. —Carrying Pistol—Statement of Facts—Stenographer. The law in relation to official stenographers does not apply to criminal cases tried in the County Court, and where the alleged statement of facts was not found in the transcript, it could not be considered on appeal. 2. —Same—Sufficiency of the Evidence. But should the statement of facts be considered the evidence is sufficient to sustain a conviction of unlawfully carrying a pistol. 3. —Same—Date of Offense—Limitation—Surprise. Upon trial of unlawfully carrying a pistol, there was no error in permitting the State to prove a date other than that alleged in the information, it being within two years prior to filing same; there being no suggestion of surprise. 4. —Same—Election by State. The doctrine of election does not apply with equal force in misdemeanor cases as it does in felony cases, and under the facts there was no error in not requiring the State to elect on which date, March 3d or 4th, defendant carried the pistol, as the occasion upon which he carried it determined the matter. 5. —Same—Charge of Court—Alibi. Upon trial of unlawfully carrying a pistol, where no special charge was requested on the subject of alibi, there was no reversible error; besides, the evidence did not raise such an issue. 6. —Same—Filing—Information—Complaint. Where the record showed, on appeal, that the complaint and information were delivered to the cleric on a certain date, this was a filing in law, and there was no error in permitting the clerk to indorse this date on the papers when called to the court’s attention. Following Starbeck v. State, 109 S. W. Rep., 162. 7. —Same—Verdict. That the verdict is against the law and the weight of the evidence and justice, is too general to be considered.
63 Tex. Crim. 478Corbett v. State. (1911)
Aggravated Assault—Jeopardy—Former Conviction. Where the county attorney filed an information for aggravated assault, based upon affidavit in the County Court, and received defendant’s plea of guilty thereon, it was reversible error in a prosecution, based upon the identical facts, for assault with intent to murder, to strike out defendant’s plea of former conviction; and this, although the proceedings in the County Court may have been irregular, the defendant having paid off the fine assessed against him in the County Court.
63 Tex. Crim. 482Hard v. State (1911)
Tried below before the Hon. H. B. Huff. Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary.
63 Tex. Crim. 483Peddy v. State (1911)
Local Option—Statement oí Eacts—Practice on Appeal. It is not sufficient to tender fees to the official stenographer and accept his promise that he will make out a statement of facts; a resort to some process of law to compel compliance must be shown. Following Smith v. P. V. & N. Ry. Co., 43 Texas Civ. App., 204. [Rehearing denied November 1, 1911.—Reporter.]
63 Tex. Crim. 484Davis v. State (1911)
The opinion states the case.
63 Tex. Crim. 487Byrd v. State (1911)
The opinion states the case.
63 Tex. Crim. 488Majors v. State (1911)
1. —Burglary—Evidence—Leading Question. Where the question was not so framed as to suggest the answer to the witness, it was not leading. 2. —Same—Evidence—Confession—Warning. Where, upon trial of burglary, the written confession of the defendant was not in compliance with the statute, and did not show to whom it was made, its admission in evidence was reversible error. Following Henzen v. State, 62 Texas Crim. Rep., 336. 3. —Same—Charge of Court—Owner. Where, upon trial of burglary, the jury were not required to find that the party named in the indictment was the owner of the property stolen, the same was no-t a proper charge, although it may not have been error under article 723, Code Criminal Procedure. 4. —Same—Argument of Counsel. It is not proper for counsel to go outside of the record in their argument; although in this case the same was not reversible error in the absence of a requested charge. [Rehearing denied November 2D, 1911.—Reporter.]
63 Tex. Crim. 491Schmidt v. State (1911)
The opinion states the case.
63 Tex. Crim. 494Chapman v. State (1911)
Tried below before the ■ J-Ton. R. E. Williams. Appeal from a conviction of gaming; penalty, a fine of $10. The indictment, leaving out formal averments, charged that the defendant did then and there unlawfully bet and wager money at a game played with cards, against the peace and dignity of the State.
63 Tex. Crim. 494Cox v. State (1911)
1. —Burglary—Accomplice—Corroboration—Continuance—Codefendant. Where, upon trial‘of burglary, there was but slight corroboration of the accomplice testimony, it was reversible error to refuse a continuance on account of the testimony of a codefendant who had been acquitted, and which contradicted the testimony of the accomplice. 2. —Same—Evidence. ■ Upon trial of burglary, testimony which did not connect the property found with that taken from the burglarized house should not have been admitted.
63 Tex. Crim. 499Walker v. State (1911)
1. —Assault to Murder—Charge of Court—Provoking Difficulty—Self-Defense. Where, upon trial of assault with intent to murder, the evidence raised a clear-cut issue of self-defense, and also that of provoking the difficulty, the issue of self-defense should have been submitted by an independent charge of the court, and where the court failed to do so, it was reversible error; especially where the court’s charge was burdened with the State’s theory of provoking the difficulty. 2. —Same—Evidence—Declaration of Third Parties. Upon trial of assault to murder it was reversible error to admit testimony that the alleged injured party had been appointed constable and was authorized to carry a pistol, the defendant having no notice thereof and such appointment not having in fact occurred. 3. —Same—Continuance—Practice on Appeal, Where the case is reversed upon other grounds, the question of the motion for continuance need not be considered.
63 Tex. Crim. 503Holloway v. State (1911)
The opinion states the case.
63 Tex. Crim. 507Williams v. State (1911)
The opinion states the case.
63 Tex. Crim. 510Green v. State (1911)
Forgery—Indictment—Extrinsic Facts—Subject of Forgery. It is not necessary that the alleged forged instrument should be directed to any particular individual, and where it is necessary to explain the terms of the instrument, it is proper to do so, and where the instrument was such that it would be valid if genuine, the indictment was sufficient.
63 Tex. Crim. 512Ex Parte Parvin (1911)
Habeas Corpus—Custody. Where relator appealed from a judgment remanding him to custody and gave a recognizance and was not in custody, the appeal must be dismissed.
63 Tex. Crim. 513Chapman v. State (1911)
The opinion states the case.
63 Tex. Crim. 515Williams v. State (1911)
The opinion states the case.
63 Tex. Crim. 516Ex Parte Hubbard (1911)
From Bexar County. Original proceeding of habeas corpus, asking release from a commitment -of a Corporation Court for contempt of court, assessing a fine of $50 and three days confinement in jail. The opinion states the case.
63 Tex. Crim. 519Ex Parte Hoard (1911)
The opinion states the case.
63 Tex. Crim. 522McCray v. State (1911)
1.—Negligent Homicide—Charge of Court—Ordinary Care. Where, upon trial of murder, the evidence developed that the transaction was either negligent homicide or accidental killing, and further showed that the defendant believed that the gun was unloaded, etc., it was reversible error to refuse an instruction, that if the defendant did not know and in the exercise of ordinary care and caution could not know the gun was loaded at the time of the killing to acquit him. 2.—Same—Charge of Court—Accidental Killing.. Where, upon trial of murder, the evidence raised the issue of accidental killing a failure to submit a charge thereon was reversible error.
63 Tex. Crim. 525Anderson v. State (1911)
1. —Murder—Charge of Court—Self-Defense—Deadly Weapon—Presumption. Where, upon trial of murder, the court in submitting the issue of self-defense instructed the jury that if the weapon used by deceased and the manner of its use were such as was reasonably calculated to produce death or serious bodily harm, then the law presumed that he intended to murder or aimed to inflict serious bodily injury upon the defendant, the same was more favorable than necessary under the facts, and substantially submitted the question of deadly weapon and legal presumption under Article 676, Penal Code. 2. —Same—Sufficiency of the Evidence. Where the evidence showed that the deceased did not raise or attempt to raise or point the gun in the direction of defendant, but that he held the stock in one hand with the muzzle on his foot, when the defendant stepped up, caught hold of the gun in the hand of deceased and shot him with a pistol, killing him, a conviction for manslaughter was more than warranted.
63 Tex. Crim. 527Oldham v. State (1911)
1. —Murder—Evidence—Contradicting Witness. Where, upon trial of murder, a State’s witness denied pointing to a certain tree and saying she'was standing at it during the shooting, and a defendant’s witness testified that she did point out this tree and said she was standing at it at the time of the shooting, there was no error in not admitting the further testimony that defendant’s witness was familiar with the ground and that a person standing at said tree could not have seen the place where the shooting occurred; as this was an undisputed fact. 2. —Same—Evidence—Bolstering up Witness. Where a little girl was permitted to testify for the defendant concerning a certain knife she found where the deceased was standing at the time he was shot, and there was no effort made by the State to contradict or impeach her testimony, there was no error in excluding a conversation between the little girl and a third party as to where she found the knife. 3. —Same—Charge of Court—Insult to Female Relative—Adequate Cause—■ Manslaughter. Where, upon trial of murder, the defendant, in his testimony on direct examination said nothing about his wife having been insulted by the deceased, and that he acted upon this matter, but it had to be drawn out of him on cross-examination for the purpose of breaking down his defense of self-defense he was making, and this ipatter was submitted to the jury as to whether same was adequate cause and really produced passion, etc., rendering the defendant incapable of cool reflection, there was no reversible error in refusing defendant’s special instructions that insult to a female relative was adequate cause per se. 4. —Same—Bills of Exception—Evidence. Where there were no bills of exception to the admissibility of testimony, there was nothing to review on appeal. 5. —Same—Charge of Court—Manslaughter—Burden of Proof. Where, upon trial of murder, the court’s charge on manslaughter did not shift the burden of proof, when taken in connection with the entire charge, there was no error on this ground. 6. —Same—Charge of Court—Self-Defense. Where, upon trial of murder, the requested charges together with the court’s charge on self-defense, presented every theory of appellant’s defense, there was no reversible error on this ground. [Rehearing denied January 10, 1913.—Beporter.]
63 Tex. Crim. 537Villa v. State (1911)
The opinion states the case.
63 Tex. Crim. 541Luster v. State (1911)
1.—Murder—Continuance. Where the motion for new trial did not set up in what particulars defendant’s attorneys were unable to prepare his case and showed no grounds for continuance, and there was no diligence to procure the attendance of absent witnesses, and their testimony was not of a material character, there was no error in overruling the motion. Z.—Same—Indictment—Grand Jury. Where the indictment definitely alleged that it was the act of the grand jury of the proper court and county, and was sufficient in other respects, there was no error. 3. —Same—Service of Copy of Indictment—Witnesses. Where the names of the witnesses are not placed upon the indictment, and the copy served upon the accused did not contain such names, there was no error, as the statute is only directory. 4. —Same—Service—Copy of Indictment—Felony—Precept. Where, upon trial of murder, the record on appeal showed that the clerk of the trial court made out a literal copy of the indictment at the proper time, and that the sheriff properly served the same on the defendant within proper time before the trial, there was no error, although the sheriff had no precept issued by the clerk commanding him to make such service; there being no injury shown by reason thereof. 5. —Same—Special Venire—Service. Where, upon trial of murder, the defendant was properly served with a certified copy of the list of the special venire more than one day exclusive of the day of service and the day of trial, there was no error in not quashing the special venire, although the precept was not issued, and there was no seal to the clerk’s certified copy of said venire; but the statute was substantially complied with. 6. —Same—Charge of Court—Manslaughter—Practice on Appeal. Where the objection was general in its nature that the court failed to charge on manslaughter, and no special charge requested, there was no error; besides, the evidence did not raise the issue of manslaughter. Following Mansfield v. State, 62 Texas Grim. Rep., 631. 7. —Same—Sufficiency of the Evidence—Death Penalty. Where, upon trial of murder, a conviction assessing the death penalty was supported by the evidence, there was no error. [Rehearing denied December 6, 1911.—Beporter.]
63 Tex. Crim. 551Morville v. State (1911)
The opinion states the case.
63 Tex. Crim. 553Morville v. State (1911)
1.—Bigamy—Former Jeopardy—Invalid Indictment. Where, upon trial of bigamy, the case first went to trial'on an invalid indictment, and before a verdict was reached the prosecution was dismissed by permission of the court, and another indictment found upon which the defendant was tried and convicted, he could not plead former jeopardy. 2. —Same—Indictment—Precedent. Where, upon trial of bigamy, the indictment followed approved precedent, the same was sufficient. 3. —Same—Evidence—"Variance—Maiden Name. Upon trial of bigamy, there was no error in admitting evidence of the former marriage naming the defendant’s first wife by her maiden name instead of her husband’s name, as alleged in the indictment. 4. —Same—Evidence—Name of Eirst Wife. Where, upon trial of bigamy, there was no controversy about the first wife’s name, there was no reversible error in admitting testimony of a State’s witness that the alleged first wife had been pointed out to her. 5. —Same—Evidence—Marriage—License—Charge of Court. A legal marriage in this State can be solemnized without a marriage license, and can be proved without showing the issuance of a marriage license, and there was no error in admitting testimony that the witnesses saw the marriage ceremony performed without first showing the marriage license; nor was there error in not submitting an instruction that such license was necessary. [Rehearing denied December 6, 1911.—Reporter.]
63 Tex. Crim. 558McClennan v. State (1911)
The opinion states the case.
63 Tex. Crim. 559Jame v. State (1911)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained the conviction, there was no error. 2. —Same—Charge of Court—Bomestic Servant. Where, upon trial of burglary, the evidence did not show that the defendant was a domestic servant of the party injured, or was employed by him in anv capacity, there was no error in refusing a requested charge on the law of domestic servant. 3. —Same—House—Refrigerator—Ice Box. Where, upon trial of burglary, the evidence showed that the defendant was about to enter by force, a refrigerator or ice box used for the preservation of meats, etc., and which was- about seven feet high and five or six feet wide, and could be entered by a man through a door, field, that under well established precedent such refrigerator or ice box was a house within the meaning of the statute applicable to burglary. Following Bingham v. State, 31 Texas Crim. Rep., 249, and other cases. [Rehearing denied November 29, 1911.—Reporter.]
63 Tex. Crim. 563Toliver v. State (1911)
1. —Burglary—Continuance—Want of Diligence. Where, upon trial of burglary, defendant’s .application for continuance „ showed a want of diligence, and that the absent testimony was not probably true, there was no error in overruling same. 2. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained the conviction, there was no error.
63 Tex. Crim. 566Arseneaux v. State (1911)
The opinion states the case.
63 Tex. Crim. 567Siars v. State (1911)
The opinion states the case.
63 Tex. Crim. 569Sheppard v. State (1911)
1. —Burglary—Statement of Pacts—Approval of Judge. Where a purported statement of facts is neither signed nor approved by the trial judge, the same can not be considered. Following Brooks v. State, 2 Texas Grim. App., 1. 2. —Same—Convict—Bill of Exceptions—Sentence. A judgment of conviction does not disqualify a witness until he is sentenced; besides, there was no bill of exceptions. 3. —Same—Charge of Court—Accomplice. In the absence of a statement of facts, it must be assumed that the evidence showed that the witness was an accomplice and that the charge thereon was proper. 4. —Same—Charge of Court—Principals—Words and Phrases. Where the definition of principals in the court’s charge was correct, and the phrase “both being present” followed the word “if” and was limited thereby, the same was not .a charge on the weight of the evidence, and there was no error. 5. —Same—Charge of Court—Accomplice. Where, upon trial of burglary,' the court’s charge on accomplice testimony did not assume that the same was true, there was no reversible error.
63 Tex. Crim. 571Ex Parte Taylor (1911)
Habeas Corpus-—Judgment—Appeal—Void—Voidable. A writ of habeas corpus is not available as the means of effecting the purpose of an appeal, and unless the irregularity in obtaining the judgment is such as to render the same void, and not merely voidable, the Court of Criminal Appeals will not grant relief on habeas corpus and go behind such judgment. Following Cox v. State, 53 Texas Crim. Rep., 241, and other eases.
63 Tex. Crim. 573Melton v. State (1911)
The opinion states the case.
63 Tex. Crim. 577Ex Parte Bradenburg (1911)
From Dallas County. Original contempt proceedings requiring relator to show cause why he should not be fined for contempt, in holding a prisoner under commitment, ufter notice of appeal had been given to the Court of Criminal Appeals.
63 Tex. Crim. 578Sebedra v. State (1911)
Robbery—Statement of Pacts—Extensions. Where the statement of facts and bills of" exception were not filed within thirty days after the adjournment of the District Court, and the extensions allowed thereafter, the same could not be considered on appeal.
63 Tex. Crim. 579Clark v. State (1911)
The opinion states the case.
63 Tex. Crim. 581Beaver v. State (1911)
1. —Murder—Continuance—Want of Diligence. Where defendant’s third application for continuance did not show proper diligence, and the absent testimony was not of a serious character, there was no error in overruling same. 2. —Same—Indictment—Description of Instrument Used. Where, upon trial of murder, the indictment alleged that the instrument used by the defendant was .a piece of pipe, the same was sufficient, and sufficiently described the instrument with which the alleged homicide was committed. , 3. —Same—Jury Wheel—Constitutional Law. The Act of the Legislature known as the jury wheel law is constitutional. 4. —Same—Charge of Court—More than One Assailant. Where the court charged that if the defendant defended himself against the act or acts and words of the deceased, or those acting with him, etc., a complaint that the charge required the combined acts and conduct of all the parties was untenable. 5. —Same—Argument of Counsel. While the arguments of State’s counsel, under the ruling of the court excluding them, was not reversible error, yet prosecuting officers are admonished to keep within the record, and not seiek to obtain judgments by unfair argument. [Rehearing denied January 10, 1913.—Reporter.]
63 Tex. Crim. 584Bailey v. State (1911)
1. —Incest—Indictment—Misspelling—Words and Phrases. Where the indictment for incest set out the offense in ordinary and concise language, and with such a degree of certainty as to give defendant notice thereof and enable him to plead the same in bar of any other prosecution for the same offense, the same-was sufficient, although the word “carnally” was spelt “canally.” 2. —Same—Indictment—Niece. Where the indictment for incest clearly showed that the female upon whom the alleged incestuous intercourse was had was defendant’s niece, the same was sufficient. 3. —Same—Indictment—Marriage. In an indictment alleging- incestuous conduct between defendant and his niece, it was not necessary to allege that her parents were lawfully married, or to give their names, or to allege that she was the lawful daughter thereof. 4. —Same—Evidence—Argument—Discretion of Court—Imputing Crime to Another. Upon trial of incest, when the State’s counsel was about to close his argument, there was no error in not permitting the defendant to introduce testimony that the privates of his son had been examined by a physician and indicated that the said son must have had carnal intercourse, and that the circumstances raised the issue that said son and not the father was guilty of the incest; it appearing to the trial judge that such testimony at that period of the trial was not necessary to a due administration of justice, and that he had not abused his discretion. 5.—Same—Sufficiency of the Evidence. Where, upon trial of incest the evidence sustained a conviction, there was no error. [Rehearing denied December 13, 1911.—Beporter.]
63 Tex. Crim. 592Staten v. State (1911)
The opinion states the case.
63 Tex. Crim. 595Campbell v. State (1911)
1. —Rape—Special Venire—Discretion of Court. The statute provides that the court shall order a special venire for capital cases, and places it within the discretion of the court as to the number of veniremen to be drawn; and where, upon trial of rape, the court refused to have more than fifty men summoned, and no injury was shown, there was no error. 2. —Same—Indictment—W ornan. A woman may be guilty of rape as an abettor or principal, and where the indictment alleged among other things that the defendant unlawfully aided by acts and encouraged by words her codefendant in committing a rape, the indictment was sufficient. 3. —Same—Evidence—Clothing—Age of Prosecutrix. Where, upon trial of rape, there was no controversy or reasonable doubt that the injured female was under the age of consent, there was no error in the court’s refusal to permit her to put on a certain coat-suit, which she was said to have worn on a certain occasion; besides, the fact that prosecutrix’s general appearance might mislead one as to her age would be no defense under the circumstances. 4. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not state why testimony as to intercourse by her codefendant with another woman was objected to, and did not show how this injured the rights of the defendant, there was no error. 5. —Same—Evidence—Letter. Where the proper predicate was laid before the introduction of a certain letter written by the defendant to her codefendiant, there was no error. 6. —Same—Confessions. Upon trial of rape, there was no error in admitting in evidence the written confession of the defendant which met all the requirements of the law. 7. —Same—Evidence—Letter. Where the letter offered by the defense did not remotely tend to prove or disprove any issue in the case, there was no error in excluding it. 8. —Same—Voluntary Confession—Charge of Court—Bill of Exceptions. Where, upon trial of rape, the written confessions in accordance with the law were in evidence, and the defendant claimed that they were not voluntarily made, but the bill of exceptions showed that they were voluntarily made as the statute required, and the appellant accepted this qualification to the bill, there was no error in refusing a special charge thereon. 9. —Same—Principals—Charge of Court—Supplemental Charge. Where, upon trial of rape, the evidence raised the issue as to whether defendant—being present—aided her codeferidant to commit the rape and the defendant offered a special charge as the jury was about to retire, calling the court’s attention to the omission in his charge of this phase of the case, whereupon the court submitted a supplementary charge properly instructing the jury thereon, there was no error.
63 Tex. Crim. 602Chance v. State (1911)
The opinion states the case.
63 Tex. Crim. 606Bagley v. State (1911)
The opinion states the case.
63 Tex. Crim. 611Wallace v. State (1911)
The opinion states the case.
63 Tex. Crim. 613Ex Parte Brown (1911)
The opinion states the case.
63 Tex. Crim. 614Palmer v. State (1911)
1. —Carrying Pistol—Appeal Bond—Recognizance. Where defendant, in an appeal from a conviction of a misdemeanor, entered into an appeal bond instead of a recognizance, and failed to state the amount of the fine adjudged against him, or that he was convicted of a misdemeanor, the appeal must be dismissed. 2. —Same—Notice of Appeal. Where the record did not show that the defendant gave notice of appeal, his appeal must be dismissed.
63 Tex. Crim. 615Beck v. State (1911)
The opinion states the case.
63 Tex. Crim. 618Wells v. State (1911)
1.—Murder—Race Discrimination—Bill of Exceptions. Where, upon appeal, the record did not contain the bill of exceptions on the question of race discrimination, the same could not be considered. S.^Same—Charge of Court—Manslaughter. Where, upon trial of murder, the defendant was convicted of manslaughter, he could not complain of the court’s charge on murder in the first and second degree. 3. —Same—Charge of Court—Self-Defense—Deadly Weapon. Where, upon trial of murder, the court, in his charge on self-defense, submitted an instruction more favorable to the defendant than the law required, on the presumption of a deadly weapon, he could not complain. 4. —Same—Charge of Court—Habitation—Force. Where, upon trial of murder, the court submitted a charge on the question, of force required to be used by the defendant in ejecting deceased from an entrance to defendant’s house, in almost the very language of the statute, and applicable to the facts in evidence, there was no reversible error. 5. —Same—Buie Stated. The statute provides that in order to justify a killing in the defense of habitation, every effort in defendant’s power must have been made to repel ingression before he would be justified in killing,' and the court must charge the law applicable to the case. 6. —Same—Case Stated—Charge of Court—Ejection. Where the evidence suggested strongly that the defendant shot deceased simply because he was in defendant’s house, and that he made no effort to get him out except telling him to leave, the court correctly charged that the defendant must use all reasonable and necessary force in ejecting deceased, before he was justified in killing him, and refusing a requested charge which did not apply the statute.
63 Tex. Crim. 618Wise v. State (1911)
The opinion states the case.
63 Tex. Crim. 623Wilman v. State (1911)
1. —Aggravated Assault—Continuance—Age of Party Injured—Eirst Application. Where defendant’s motion for continuance expected to" show that the boy assaulted was over fourteen years of age, the same should have been allowed, although the evidence was cumulative, it being the first application. 2. —Same—Charge of Court—Weight of Evidence—Moderate Punishment. Where the court’s charge trenched closely upon the rule prohibiting a charge upon the weight of evidence, in submitting the issue of .moderate punishment, upon an assault on a child, the same was improper. 3. —Same—Age of Party Injured—Reasonable Doubt. Where, upon trial of aggravated assault on a boy under fourteen years of age, the defendant requested a special charge that, if there was a reasonable doubt as to such age to acquit, the same should have been given.
63 Tex. Crim. 625Espy v. State (1911)
The opinion states the case.
63 Tex. Crim. 626Hilliard v. State (1911)
Burglary—Variance—Private Residence—Statement of Pacts. In the absence of a statement of facts, an objection that the indictment charged burglary in the ordinary form and the proof showed that the house was a private residence, can not be considered.
63 Tex. Crim. 627Ex Parte Axsom (1911)
1. —Sunday Law—Pool Hall—Labor—Words and Pirrases. The word “labor” has been given a broad meaning when construing the laws relative to the observance of Sunday, and the intention of the Legislature was to prohibit the running of a pool hall on the Sabbath; and one who managed or operated a pool room, etc., is within the definition of a laborer and is amenable to the law. 2. —Same—Case Stated—Statutes Construed. Where the relator was charged with unlawfully and wilfully laboring and doing and performing the labor, work, and business of keeping a pool hall, he was guilty of violating the Sunday law under Article 190, Penal Code, prohibiting any person from laboring on Sunday. Davidson, Presiding Judge, dissenting.
63 Tex. Crim. 632Latham v. State (1911)
The opinion states the case.
63 Tex. Crim. 633Owens v. State (1911)
1. —Murder—Charge of Court—Self-Defense—Other Parties. Where, upon trial of murder, there was no evidence that any other person than those mentioned in the charge of the court were doing any act by which the defendant could justify the killing, or that the defendant was acting in defense of another, there was no error in the court’s failul-e to charge on such a state of facts. 2. —Same—Charge of Court—Threats. Where, upon trial of murder, there was no evidence that any person had made any- threats against any person except the defendant and his son, there was no error in the court’s failure to charge on such a state of facts. 3. —Same—Charge of Court—Standpoint of Defendant. It is not necessary to repeat in the court’s charge defendant’s right to act upon a reasonable apprehension of danger from his standpoint. 4. —Same—Argument of Counsel. Where the district attorney merely commented on the evidence in the case, there was no error; besides, there were no special requested instructions to withdraw the argument. 5. —Same—Sufficiency of the Evidence. Where the evidence sustained a conviction of murder in the second degree, there was no error. [Rehearing denied December 20, 1911.—Reporter.]
63 Tex. Crim. 637Perry v. State (1911)
The opinion states the case.
63 Tex. Crim. 639Calderon v. State (1911)
1. —Murder—Argument of Counsel—Bill of Exceptions. Where, upon appeal from a conviction of murder, there was no bill of exceptions to the argument of counsel, and besides, it appeared from the record that the objectionable language was not used by State’s counsel, there was no error. 2. —Same—Sufficiency of the Evidence—Express Malice—Death Penalty. Where, upon trial of murder, the evidence clearly justified the jury in finding that the killing was with express malice, for which they assessed the death penalty, there was no error. See opinion for facts showing express malice. Davidson, Presiding Judge, dissenting.
63 Tex. Crim. 657Ballenger v. State (1911)
The opinion states the case.
63 Tex. Crim. 662Ethridge v. State (1911)
The opinion states the case.
63 Tex. Crim. 664Wright v. State (1911)
1. —Burglary—Private Residence. Where the defendant was charged with both a daytime burglary and a nighttime burglary of a private residencie, both of which counts were submitted to the jury, and the evidence showed a daytime burglary, of which defendant was convicted, he could not complain of the court’s failure to submit the night-time burglary of a private residence. 2. —Same—Separate Offense. The burglary of a private residence in the daytime is punishable as an ordinary burglary, and it is only when the entry is made in the night-time of sueli residence that it becomes a separate and distinct offense. 3. —Same—lower Punishment—Sundown. Where there was testimony that the burglary occurred more than thirty minutes after.sundown, and also testimony that the offense did not occur more than thirty minutes after sunset, and the jury gave the defendant the reasonable doubt and convicted him of a daytime burglary, which carries a lower punishment than a night-time burglary, lie could not complain, where both counts were submitted. 4. —Same—Evidence—Declarations of Defendant. WTiere the codefendant was under arrest when defendant made his declarations when not under arrest with reference to the stolen property, there was no error in admitting them, as well as those of his codefendant, in reply thereto ill defendant’s presence, in evidence. 5. —Same—Evidence—Identification—Harmless Error. Where, upon trial of burglary, the alleged stolen property was identified by other evidence, there was no error in admitting the statement of a witness, that the witnesses who identified the property told the witness that this was stolen property; besides, the defendant admitted this, but claimed that he was holding the property for another, and the error, if any, was harmless. 6. —Same—Evidence—Confession—Objections. Objections to evidence come too late when first presented in the motion for new trial, and where the exceptions to the confession were based upon other grounds than those presented in the motion for. new trial, they could not be considered on appeal. 7. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of burglary, the defendant was found in possession of the alleged stolen property and confessed the burglary, .there was no> error in the court’s failure to charge on circumstantial evidence. 8. —Same—Charge of Court—Objections. An objection that the court erred in certain paragraphs of his charge is too general to be considered. Following Kubaeak v. State, 59 Texas Grim. Rep., 105, and other cases. 9. —Same—Practice on Appeal. Where no errors are pointed out in the charge of the court in the motion for new trial, and no bills of exception reserved to evidence, or special charges requested, there was no error.