64 Tex. Crim.

Volume 64 — Texas Criminal Reports

89 opinions

64 Tex. Crim. 1Wilcock v. State (1911)
The opinion states the case.
64 Tex. Crim. 2Andrews v. State (1911)
The opinion states the case.
64 Tex. Crim. 7Kennard v. State (1911)
local Option—Variance—Name of Purchaser. Where the indictment alleged the sale to have been made to “T,” and the proof showed that it was made to “S,” the conviction could not be sustained. Following Smart v. State, 49 Texas Crim. Rep., 373, and other cases.
64 Tex. Crim. 8Davis v. State (1911)
The opinion states the case.
64 Tex. Crim. 14Ford v. State (1911)
1.—Murder—Charge of Court—Negligent Homicide—Intent to Kill. Where, upon trial of murder, the court submitted the issue of negligent homicide, and the intent to kill, in a proper manner, there was no error. it.—Same—Charge of Court—Self-Defense—Murder in the Second Degree. Where, upon trial of murder, the court submitted the issue of self-defense, and murder in the second degree, of which the defendant was convicted, there .was no error. 3. —Same—Charge of Court—Manslaughter—Means Used. Where, upon trial of murder, the court in submitting manslaughter, instructed the jury that if the means used were not reasonably calculated to accomplish the death of the deceased, etc., they should acquit the defendant, he could not complain under the facts that lie only used small shot .and had no intent to kill. 4. —Same—Charge of Court—Specific Intent to Kill—Sufficiency of the Evidence. Where, upon trial of murder, the charge of the court in connection with special charges submitted presented every theory of the defense, the conviction must be sustained, although there was evidence on the part of the defense that he had no intent to kill. [Rehearing denied January 10, 1912.—Reporter.]
64 Tex. Crim. 19McCline v. State (1911)
The opinion states the case.
64 Tex. Crim. 30Ex Parte Lingenfelter (1911)
From McClennan County. Original habeas corpus proceeding, asking release from a commitment issued out of the Corporation Court of the city of Waco, on a conviction of violating the Sunday law, assessing a fine of $20. The opinion states the case.
64 Tex. Crim. 61Adams v. State (1911)
The opinion states the case.
64 Tex. Crim. 64Grimes v. State (1911)
1. —‘Assault to Rape—Continuance. Where the cause is reversed upon other grounds, it is not necessary to pass on the application for continuance. 2. —Same—Evidence—Motive. Upon trial of assault to rape, there was no_ error to admit in evidence what was said and done by the defendant to the prosecutrix in the afternoon before the evening of the assault, with reference to the defendant’s motive in making opportunity to comniit the assault. However, the fact that the defendant whipped the prosecutrix on another occasion was not admissible. 3. —Same—Evidence—Appearance of Prosecutrix. Upon trial of assault to rape, there was no error in admitting testimony as to the appearance of prosecutrix two days after the alleged assault; that her lips were blue and that she had bruised spots on her throat, etc. However, the witness’ conclusions as to finger prints should have been excluded. Following Pefferling v. State, 40 Texas, 492. 4. —Same—Evidence—Cross-Examination. Upon trial of assault to rape, there was no error in permitting the State to show by defendant’s witness on cross-examination that he had not testified at a former trial; no question being asked as to the result of such trial. 5. —Same—Evidence—Rebuttal. Where the mother of prosecutrix had testified that prosecuting witness had never told her about the assault, there was no error in permitting the prosecutrix to testify that she did tell her. 6. —Same—Evidence—Declarations of Defendant. Upon trial of assault to rape, there was no error in permitting a State’s witness to testify that defendant had come to him and told him that if witness had testified like defendant wanted him to that he would have been $25 better off. 7. —Same—Charge of Court—Force. Where, upon trial of assault to rape, the court had charged on the question of force, there was no error in refusing special charges thereon. 8. —Same—Evidence—Other Acts of Intercourse. Upon trial of assault to rape, on a female over the age of consent, it was improper for State’s counsel to repeat the question whether defendant ever made any similar assaults on prosecutrix prior to the one charged in the indictment, the court having sustained objections thereto. 9. —Same—Argument of Counsel—Requested Charges. Upon trial for assault to rape, it was reversible error, in the absence of testimony, for State’s counsel to impugn defendant’s reputation, and state that defendant had tried to debauch other girls and that for this reason they had left home, etc., and this although no instructions were asked to withdraw such argument.
64 Tex. Crim. 70Walker v. State (1911)
• 1.—Bigamy—Indictment. Where, upon trial of bigamy, the indictment followed approved precedent, there was no error. Following Bryan v. State, 63 Texas Crim. Rep., 200. 2. —Same—Foreign Laws—Certified Copy—Presumption. Where the certified copy of the laws of Alabama, relating to the celebration of the rites of matrimony, were duly in evidence, and the certificate showed March 15, 1911, as the date, it must be presumed, in the absence of anything to the contrary, that they are still the law. 3. —Same—Evidence—Marriage License—Foreign Court—Record. The records of a foreign court must be verified, as provided in the Act of Congress, and are not admissible in evidence by any State statute, and the certified copy of a. marriage license of the Probate Court of Alabama can not be introduced in evidence unless it is authenticated as provided by the Revised Statutes of the United States. 4. —Same—Evidence—Marriage License—Notice. Where the original marriage license was introduced in evidence, it was not necessary to first file it with the papers and give notice thereof. 5. —Same—Evidence—Letter—Husband and Wife. Upon trial of bigamy it was error to admit in evidence a letter written by the defendant to the alleged former wife. This was a privileged communication. Following Gross v. State, 61 Texas Crim. Rep., 176. 6. —Same—Argument of Counsel—Discretion of Court. Where the argument of State’s counsel was a legitimate deduction from the testimony, there was no error; and it was in the discretion of the court to permit State’s counsel to make more than one argument, where defendant’s counsel declined to address the jury. 7.—Same—Continuance—Bill of Exceptions. Where there was no bill of exceptions to the court’s action in overruling a motion for continuance, there was no error.
64 Tex. Crim. 73Hernandez v. State (1911)
The opinion states the case.
64 Tex. Crim. 83Treadwell v. State (1911)
1. —Injuring1 Fence of Another—Special Charge. Where the requested charge is not in the record, the same can not be considered on appeal. 2. —Same—Charge of Court—Misdemeanor—Requested Charge. Where, upon appeal from a conviction of injuring the fence of another, "there was evidence that the same was not wilfully done, but no special charge was requested, there was no reversible error, although the defense was good. In misdemeanor cases a special charge must be requested in order to bring the matter up on appeal.
64 Tex. Crim. 84Skinner v. State (1911)
1. —Local Option—Statement of Facts—Transcript. In appeals from the County Court the statement of facts must appear in the transcript, and the original can not be considered. 2. —Same—Indictment—Mutilated Instrument. Where the indictment as copied in the record did not disclose any mutilation, and the original did not accompany the transcript, there was no error. 3. —Same—Filing—Indictment—Practice, Where the record showed that the indictment had been filed at the proper time, but the clerk had failed to mark that it was filed, there was no error.
64 Tex. Crim. 85Jenkins v. State (1911)
The opinion states the case.
64 Tex. Crim. 86Jenkins v. State (1911)
1. —Local Option—Statement of Facts—Transcript. Where the statement of facts was not embodied in the transcript, in an appeal from the County Court, the same could not be considered. 2. —Same—Indictment—Mutilated Instrument. Where appellant contended that the indictment was a separate piece cut from another and different instrument and pasted on the face of the indictment, and did not show ia valid indictment, but the face of the original indictment showed that it was the act of the grand jury, there was no error.
64 Tex. Crim. 88Jenkins v. State (1911)
1. —Local Option—Statement of Facts—Transcript. Where the statement of facts is not embodied in the transcript, in an appeal from the County Court, the same can not be considered. 2. —Same—Indictment—Mutilated Instrument. Where it appeared from the original indictment that the same was spliced together, but there was no evidence that this was done by anyone except the grand jury, there was no error.
64 Tex. Crim. 89Barber v. State (1911)
1. —Forgery—Indictment—Act of Another. In an indictment for forgery it is not necessary to allege that the forged instrument purports to be the act of tire party injured,, or to name the person whose act such instrument purports to be. 2. —Same—Indictment—Innuendo Averments—Obligation. It is not required that the instrument if true should in fact discharge or defeat an obligation; it will be the subject of forgery if its tendency is such; and where the instrument alleged in the indictment was vague and indefinite, but by explanatory averments it is alleged that it was intended if genuine to have operated as a credit on a certain note, the indictment was sufficient. 3. —Same—Evidence—Instrument. Upon trial of 'forgery, there was no error under the facts in admitting in evidence the instrument upon which the indictment was based. 4. —Same—Evidence—Receipt—Explanation. Where, upon trial of forgery of a certain receipt the State was permitted to introduce testimony with reference to the business relations between defendant and prosecutrix, and with reference to a certain civil suit by the latter against the defendant involving a note which said receipt was intended to discharge, and the abstraction of said note by the defendant, etc., there was no error in admitting all this testimony in connection with said receipt. 5. —Same—Evidence—Comparison of Handwriting—Opinion of Witness. . Upon trial of forgery, where the State’s witness testified that he was familiar with the handwriting of the prosecutrix, etc., and that the alleged receipt was not in her handwriting, but that it bore evidence of having been traced from a genuine signature of prosecutrix, there was no error from all the testimony in the case. 6. —Same—Pleading in Civil Suit—Evidence. Upon trial of forgery, there was no error in admitting in evidence the an- ' swer tiled by the defendant in a certain civil suit involving the instrument or receipt upon which the prosecution was based. 7. —Same—Evidence—Comparison of Handwriting. Upon trial of forgery, where the State claimed that the forgery was accomplished by tracing over the genuine signature of prosecutrix, and defendant’s witness claimed that the same was a genuine signature by comparing it with admitted signatures, there was no error-to have said witness write his own name on different pieces of paper, and by comparison show that no one would space letters in making his signature in the same way if he signed his name twice. 8. —Same—Evidence—Animus of Witness. Where the rejected testimony did not show that the witness attacked was talking about the defendant, to show animus, there was no error. 9. —Same—Charge of Court—Accomplice. Where the court’s charge on accomplice testimony was according to precedent, and other objections to the charge of the court did not point out any error, there was no reversible error. 10. —Same—Argument of Counsel. Where no written charges were requested, and the court admonished the jury not to consider the remarks of counsel complained of, there was no reversible error. [Rehearing denied January 10, 1912.—Reporter.]
64 Tex. Crim. 96Barber v. State (1911)
The opinion states the case.
64 Tex. Crim. 104Dorman v. State (1911)
1. —Local Option—Indictment. Where the indictment, in a prosecution for the violation of the local option law, is drawn in accordance with approved form, the same is sufficient. 2. —Same—Evidence—State’s Witness. Where the State’s witness was not attacked in his statements, the State can not support its witness by proving his statement at other times and places. 3. —Same—Charge of Court—Law in Force. The State must show, in prosecutions under the local option law, that prohibition is in force in the territory of the alleged offense, and where this is not done and proper exceptions were made by special charge and in motion for new trial, there was reversible error.
64 Tex. Crim. 106Barker v. State (1911)
1. —Keeping Disorderly House—Married Woman—Principals. A married woman can in law be convicted, as a principal with her husband ' in the commission of an offense, if the facts so justify and she not acting under coercion or duress, and where, in a prosecution against the wife for keeping a disorderly house, the testimony did not show that she was acting under coercion, etc., of her husband, there was no error in submitting the issue of principals in her case. 2. —Same—Misdemeanor—Charge of Court. In a misdemeanor case where the appellant did not complain in motion for new trial of the failure of the court to submit his special charges, there was no error. 3.—Same—Evidence—Reputation. In prosecutions for keeping a disorderly house, the general reputation of the house is admissible in evidence. 4.—Same—Charge of Court—Bills of Exception. Where the bills of exception do not point out any error in the charge, and no complaint thereof was made in motion for new trial, the court certifying that no exception was taken to the charge of tine court at the time of the trial, and no special charges were requested (this being a misdemeanor), there was no error.
64 Tex. Crim. 108Johnson v. State (1911)
The opinion states the case.
64 Tex. Crim. 110Lewis v. State (1911)
1. —Obstructing Public Road—Limitation. Where, upon trial of obstructing a public road, the evidence showed that defendant had possession for more than ten years, he could not-be dispossessed without his consent. 2. —Same—Due Course of Law—Notice—Compensation. Where, upon trial of obstructing a public road, there was no evidence that the defendant had received notice of the laying out of the road, or that he had received compensation, or that the road was laid out under due course of law, the conviction could not be sustained.
64 Tex. Crim. 112Head v. State (1911)
The opinion states the case.
64 Tex. Crim. 114Zimmer v. State (1911)
The opinion states the case.
64 Tex. Crim. 122Diggs v. State (1911)
The opinion states the case.
64 Tex. Crim. 127Pressley v. State (1911)
1. —Theft of Horse—Sufficiency of the Evidence. Where, upon trial of theft of a horse the evidence sustained the conviction, there was no error. 2. —Same—Indictment. Where the indictment followed precedent, the same was sufficient. 3. —Same—Evidence—Justice of the Peace—Examining Trial. Where, upon trial of theft of a horse, the defendant objected to the introduction in evidence of his statement taken on the examining trial before a justice of the peace, because the same was not properly authenticated and irregular in other respects. Held, that the same was admissible as defendant’s testimony given by him on said examining trial, and it need not be decided whether the same was admissible as a statement under Articles 282 and 283, Code Criminal Procedure. 4. —Same—Statutes Construed. Article 790, Code Criminal Procedure, as amended by the Act of 1907, wholly relates to the confessions as such, and was not intended to change the law with reference to the statement of an accused in an examining trial. 5. —Same—Charge of Court—Recent Possession—Explanation. Where, upon trial of theft of a horse, the court in his charge on recent possession and explanation followed approved precedent, there was no error. Following Wheeler v. State, 34 Texas Crim. Rep., 354.
64 Tex. Crim. 135Roberts v. State (1911)
1. —Theft of Cattle—Evidence—Bill of Exceptions. Where the bill of exceptions did not show that the witness answered the question objected to, or what the answer was, the same will not be considered on appeal. 2. —Same—Evidence—Bill of Exceptions. Where, upon trial of theft of cattle, the defendant claimed the animal in good faith, there was no reversible error in asking the witness a& to the marks on the animal, etc.; besides, the bill of exceptions was insufficient. 3. —Same—Side-Bar Remarks. Where the objectionable statement of State’s counsel was immediately withdrawn and could not have injured defendant, there was no reversible error. 4. —Same—Evidence—Hearsay. Where, upon trial of theft, the defendant’s witness stated that he did not know the alleged animal, there was no error in sustaining an objection as to what the witness had been told about it by the defendant. 5. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not state what the answer was or would have been to the question objected to, the same could not be considered on appeal. 6. —Same—Sufficiency of the Evidence—Fraudulent Intent. Where, upon trial of theft of cattle, the evidence sustained the conviction, there was no error. See opinion for facts held sufficient to show a fraudulent taking. Davidson, Presiding Judge, dissenting.
64 Tex. Crim. 148Browning v. State (1911)
The opinion states the case.
64 Tex. Crim. 153York v. State (1911)
1. —Assault to Murder—Evidence—Condition of Weapon. Upon trial of assault to murder, there was no error in admitting testimony that the knife used had some blood on it, was very sharp, and showed that next to the jaws of the knife it had some rock or dust of grindroclc on it as if it had been freshly sharpened; it having been shown that defendant had sharpened his knife just before the difficulty. 2. —Same—Evidence—Character of Prosecutor. Where, upon trial of assault to murder, the defendant had been permitted to show that the assaulted party had more or less trouble and fights with others, and that he was considered high-tempered, etc., there was no error to exclude testimony that said party was especially dictatorial, overbearing, etc., in matters pertaining to the Baptist Church. 3. —Same—Evidence—Clothing of Assaulted Party. Where it appeared that the clothing worn by the assaulted party at the time of the difficulty was material to corroborate the State’s testimony as to the number of times defendant cut the assaulted party, there was no error to introduce same in evidence. 4. —Same—Charge of Court—Intent to Kill—Self-Defense. Where, upon trial of assault to murder, the court submitted assault to murder, and that if the defendant had no specific intent to kill, that they must find defendant either guilty of aggravated or simple assault, and also submitted self-defense, applying the reasonable doubt in a proper manner, according to the evidence, there was no error in the conviction of assault to murder. [Rehearing denied January 10, 1912.—Reporter.]
64 Tex. Crim. 157Taylor v. State (1911)
The opinion states the case.
64 Tex. Crim. 159Boydston v. State (1911)
The opinion states the case.
64 Tex. Crim. 161Hickman v. State (1911)
Tried below before the Hon. A. W. Ritchie. Appeal from a conviction of unlawfully establishing a raffle; penalty, a fine of $5. The opinion states the case.
64 Tex. Crim. 164Weir v. State (1911)
Keeping Disorderly House—Repeal of law. The Act of 1907, p. 247, defining disorderly and bawdy houses and prescribing a penalty therefor, was not repealed by the Act of 1909, p. 111. Following Parsehall v. State, 62 Texas Crim. Rep., 177.
64 Tex. Crim. 165Baumgarner v. State (1911)
1. —Breach of Peace—Bill of Exceptions—Requested Charges. Where, upon trial of breach of the peace, there were no bills of exception taken to the action of the court in refusing defendant’s requested charges, the same could not be reviewed; besides,, there was no error. 2. —Same—Motion for New Trial—Practice on Appeal. An objection in the motion for new trial that the court erred in refusing defendant’s special instructions is too general to be considered. 3. —Same—Sufficiency of the Evidence. Where, upon trial of disturbing the peace, the evidence sustained a conviction, there was no error. 4. —Same—Evidence—Bill of Exceptions. Where there was no bill of exceptions in the record to the introduction of testimony, there was nothing to review. 5. —Same—Charge of Court—Practice on Appeal. Where the complaint to the charge of the court is made for the first time in defendant’s amended motion for new trial, in a misdemeanor case, the same can not be considered on appeal; besides, there was no error, as the court’s charge was substantially in the language of the statute.
64 Tex. Crim. 168Whitstone v. State (1911)
Local Option—Purchaser—Variance. Where, upon trial of violation of the local option law, the evidence did not show a sale to the alleged purchaser, but if there was any sale at all, it was made to another person, the conviction could not be sustained. Following Miles v. State, 62 Texas Crim. Rep., 530, and other cases.
64 Tex. Crim. 171Ex Parte Wright (1911)
Prom Bexar County. Original habeas corpus proceeding, asking release on a commitment issued out of the District Court for contempt of court in interfering with a juryman; penalty, a fine of $100 and confinement in the county jail for three days.
64 Tex. Crim. 175Hamilton v. State (1911)
The opinion states the case.
64 Tex. Crim. 179Porterfield v. State (1911)
The opinion states the case.
64 Tex. Crim. 183McCauley v. State (1911)
Libel—newspaper—Information—Innuendo. Where, upon trial of criminal libel,by a newspaper publication, the language used as a basis for the second count in the information, upon which defendant was convicted, could not be made to convey the meaning alleged in the innuendo averments in said count, but such averments gave to said language a meaning not ordinarily flowing therefrom,.a motion to quash the information should have been sustained.
64 Tex. Crim. 187Jordan v. State (1911)
1. —Murder—Charge of Court—Insanity. Where, upon trial of murder, there was evidence as to the insanity of the defendant and the court charged upon this issue according to the precedents laid down by this court, and, in fact, submitted the same more favorably to the defendant than was necessary, there was no reversible error. 2. —Same—Evidence—Nonexpert Opinion—Insanity. Where, upon trial of murder, the witnesses who testified on the question of insanity were nonexpert, and before their opinion was elicited on the question of the defendant’s sanity or insanity were interrogated by both sides as to their means of knowledge gathered from defendant’s acts and conduct; and there was no objection as to the witnesses’ means of observation, there was no error. 3. —Same—Evidence—Bill of Exceptions. In passing on a bill of exceptions, the Appellate Court does not go to the statement of facts to look up the testimony in passing on such bill, and unless the bill is sufficient in itself, the matter can not be reviewed. 4. —Same—Charge of Court—Insanity—Nonexpert Opinion. Nonexpert witnesses, when they are shown to have had a sufficient knowledge of the accused for a sufficient length of time and came in contact with him and have had conversations and business relations with him for ány considerable period of time, based solely on their own knowledge and observation, can express an opinion as to the sanity or insanity of the accused; and where witnesses in a murder trial were not asked their opinion of the sanity or insanity of the defendant until after he had opportunity by his counsel to thoroughly cross-examine the witnesses upon their means of observation, there was no error. 5. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained a conviction of murder in the second degree, there was no error. 6. —Same—Motion for Rehearing—Practice on Appeal. Complaints made in the briefs of counsel or in assignments that are not based upon a specific ground pointed out properly in the court below, or in motion for rehearing in this court, can not be considered; there being no motion to amend at the proper, time requested.
64 Tex. Crim. 200Farrell v. State (1911)
1. —Keeping Disorderly House—Statement of Tacts. In misdemeanor cases, in the County Court, the statement of facts must be incorporated in the transcript on appeal. 2. —Same—Indictment—Precedent. Where, in a prosecution for keeping a disorderly house, the indictment followed approved precedent, the same was sufficient. Following Wimberly v. State, 53 Texas Crim. Rep., 11. 3. —Same—Indictment—Description of location. Where the indictment charged the commission of the offense of keeping a disorderly house in the county of the prosecution, the location was sufficiently described; nor was it necessary to allege that the defendant knowingly permitted the offense. 4. —Same—Practice on Appeal—Certiorari. After a case had been submitted in the Appellate Court and the decision rendered, a motion for a writ of certiorari to perfect the record as to the statement of facts comes too late on motion for rehearing, where the appellant had actual notice of such defect before the time of submission; besides, there was no reversible error.
64 Tex. Crim. 203Fifer v. State (1911)
1. —Murder—Postponement—Judgment of District Court. The judgments of the District Courts of this State, when not appealed from, are final, and the defendant on trial of murder was bound by the judgment against him in a civil suit in which he was defending, wherein the land was adjudged to the plaintiff, and there was no error in overruling defendant’s motion for a postponement of the case for a land survey to show that he was on his own land and had a right to resist ejection. 2. —Same—Amended Petition—Default. Where, upon trial of murder, it appeared that the homicide grew out of ejection proceedings against the defendant, and defendant claimed the right to resist ejection because judgment had been rendered against him for the land by default on an amended petition of the plaintiff, and the record showed that the amended petition set up no new cause of action, but simply set out the field notes. Held, that defendant was bound by the judgment of default and there was no error in overruling his motion for postponement. 3. —Same—Judgment—Ejection. Where defendant was tried for murder which grew out of ejection proceedings against him, he had no right to defend his possession by force of arms, and there was no error in overruling his motion for postponement in order to have a survey of the land made to show that he was on his own land; the original judgment having decided the fact against him. 4. —Same—Continuance—Impeachment. Where, upon trial of murder, a postponement was asked for impeaching testimony, there was no error in overruling same. 5. —Same—Evidence—Bills of Exception. Where, upon trial of murder, the defendant objected to the questions propounded by State’s counsel because the answers would have been conclusions of the witness, etc., but did not set out «enough of the testimony in his bill of' exceptions to enable the court to pass on the question of admissibility of the testimony, the matter could mot be reviewed; besides, the objection would only go to the weight of the testimony. 6. —Same—Evidence—Court Records—Civil Suit—Motive. Where the defendant claimed that he was the owner of the land about which the homicide occurred -which grew out of ejection proceedings, there was no error in admitting in evidence the record in a civil case which disclosed that defendant had been sued for said land and judgment rendered against him, and that he had been enjoined from entering thereon and had disobeyed said injunction, etc., in order to show motive and malice, the testimony being properly limited thereto; besides, the bill of exceptions was defective in not setting out the instruments to which objection was made. 7. —Same—Evidence—Assignments of Error. Assignments of error in the transcript will not be considered; the Appellate Court can only look to the motion for new trial. 8. —Same—Evidence—Threats—Writ of Possession. Upon trial of murder, there was no error in permitting the State’s witness to testify that a writ of possession was issued out of the District Court against the defendant to dispossess him of the land about which the homicide occurred, and that defendant threatened to kill the man who attempted to put him off the land, and that he resisted the civil process of the court, etc. 9. —Same—Evidence—Malice. Where, upon trial of murder, defendant contended that he claimed the land in good faith about which the homicide occurred, there was no error to show that at the time defendant was dispossessed the officer took the decree of the court, and in the presence of defendant ran the lines of the land and put defendant and his property off the land; to show that he had notice of the decree. 10. —Same—Evidence—Execution. Where defendant contended that the deceased was a trespasser at the time defendant killed him, there was no error in permitting the State to show that the deceased, who was a deputy sheriff, had an execution in his pocket at the time, against the defendant. 11. —Verdict—Reforming Verdict. Upon trial of murder there was no error in the court’s action to change the form of the verdict before it was filed, in the presence and by the assent of the juxy- 12. —Same—Argument of Counsel. Where the argument of State’s counsel was a legitimate deduction from the evidence, there was no error. 13. —Same—Charge of Court—Practice on Appeal. Where the objection to the charge of the court pointed out no error, the same can not be considered on appeal. 14. —Same—Charge of Court—Special Charge. WThere the motion for new trial did not point out the error as to the failure of the court to submit defendant’s special instructions, the matter can not be reviewed; besides, the court’s main charge covered the issues submitted. 15. —Same—TJncommunicated Threats. Where, upon trial of murder, there was no evidence that deceased had made any threats, there was no error in the court’s failure to charge on uncommunicated threats. 16. —Same—Charge of Court—Self-Defense—More Than One Assailant. Where, upon trial of murder, the evidence showed that the deceased and another were officers and had gone to defendant’s place for the purpose of serving some papers in a civil suit, out of which the homicide arose, and there was no evidence that the-party accompanying the deceased said or did anything at which anyone could take offense, but merely showed his presence at the scene of the homicide and no more, and the court in charging upon self-defense limited defendant’s right thereto to the acts of the deceased, and did not submit the acts and conduct of his said companion, there was no reversible error. Davidson, Presiding Judge, dissenting. 17. —Same—Charge of Court—Manslaughter. W’here, upon trial of murder, the evidence showed that the defendant was in hiding at the time he shot deceased, who was an officer attempting with another officer to serve some papers in a civil suit upon the defendant, and defendant’s testimony did not show such a state of anger, rage or terror as to render him incapable of cool reflection, but that he acted coolly and deliberately when he fired the shot, there was no error in the court’s failure to-charge on manslaughter. Davidson, Presiding Judge, dissenting. 18. —Same—Newly Discovered Evidence. Where the facts alleged to be newly discovered testimony did not authorize a reversal of the case, there was no error. 19. —Same—Practice on Appeal. Where the alleged error is such that it could not have operated injuriously to defendant, there is no reversible error; and where the court fully and fairly submitted the law of self-defense- as applicable to the facts, and there was no manslaughter in the case, and defendant was convicted of murder in the first degree, there was no error in the court’s failure to submit manslaughter. David: son, Presiding Judge, dissenting.
64 Tex. Crim. 225Allen v. State (1911)
1. —Murder—Continuance—Husband and Wife—Cumulative Testimony. Where, upon trial of murder, the defendant and his wife had testified substantially to the facts recited in the application for continuance, as expected to be proved by the absent witness, and which was uncontradicted by the State, it being the second application for continuance, there was no error in overruling the motion. D'avidson, Presiding Judge, clissenting. 2. —Same—Reputation—Evidence—Truth and Veracity. Where, upon trial for murder, there urns no effort made to impeach defendant by contradictory statements or otherwise, there was no error in not permitting defendant to prove his general reputation for truth and veracity. 3. —Same—Evidence—Impeaching Witness. Where, upon trial of murder, the defendant sought to impeach a State’s witness by showing that at the examining trial of defendant said witness had made statements contradictory of his evidence on the main trial, and then introduced a portion of said testimony for said purpose, there was no error in permitting the State to support the witness by introducing, the entire testimony of the witness taken at the examining trial. Davidson, Presiding Judge, dissenting. 4. —Same—Evidence—Bill of Exceptions. A complaint to the rejection of testimony as to the reputation of prosecuting witness can not1 be considered in the absence of a bill of exceptions. 5. —Same—Requested Charge—Weight of Evidence. A requested charge which selected the evidence of a particular witness was correctly refused as being on the weight of the testimony. G.—Same—Charge of the Court—Manslaughter. Where, upon trial of murder, the court submitted the different degrees of murder and manslaughter, the defendant being convicted of murder in the second degree, there was no error in submitting the issue of manslaughter, and this whether the issue was raised or not. 7. —Same—Charge of Court—Self-Defense—Apparent Danger. Where, upon trial of murder, the court in submitting self-defense instructed the jury that defendant had a right to act upon reasonable apprehension of danger as it appeared to him from his viewpoint, the contention that defendant had the right to act upon apparent danger, as well as real danger, did not show an injury to defendant, as the charge was more favorable than necessary. 8. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained a conviction of murder in the second degree, there was no error. 9. —Same—Continuance—Attachment. An application for continuance is not strengthened by embodying in same an application for an attachment, but must be ruled upon in accordance -with the rules of law applicable to a second application for continuance, where this is the case. 10. —Same—Continuance—Husband and Wife. While it is true that the State could not compel or require defendant or his wife to testify, yet, when they voluntarily took the stand as witnesses and testified to all the falets it was expected to be proven by the absent witness and which were not contested by the State, there was no error in overruling a motion for new trial on account of not granting a continuance for this absent testimony. Davidson, Presiding Judge, dissenting. 11.—Same—Evidence—Impeaching Witness. Where, upon trial of murder, the defendant sought to impeach and discredit the testimony of a State’s witness by introducing a part of his testimony given at an examining trial, it was proper to permit the State to introduce all of the examining trial testimony of said witness in support of the testimony of said witness, and thus show that the first statement made by said witness in no material way differed from the evidence on the main trial. Davidson, Presiding Judge, dissenting.
64 Tex. Crim. 236Wyvias v. State (1911)
1. —Attempt to Rape—Indictment—Charge of Court. Where the indictment alleged an assault to rape, and an attempt to rape, of which latter offense defendant was convicted, and the court charged the law applicable to an assault to rape only, the conviction could not be sustained. 2. —Same—Indictment—Force—Fraud—Threats. An indictment for attempt to rape must allege that it was done either by force, threats, or fraud, although the female upon which it was committed was under the age of consent; and the evidence must sustain this allegation. 3. —Same—Verdict—Charge of Court. The verdict of a jury must be responsive to the charge of the court as well as to the allegations in the indictment. 4. —Same—Insufficiency of the Evidence. Where, upon trial of attempt to rape, the evidence does not show force, or that character of force which is required in such cases, the conviction can not be sustained. [Rehearing denied January 17, 1912.—Reporter.]
64 Tex. Crim. 238Ex Parte Wolters (1911)
64 Tex. Crim. 311Ex Parte Gray (1911)
64 Tex. Crim. 350Ex Parte Townsend (1911)
From Orange County. Original habeas corpus proceeding asking release from commitment under a charge against relator of the offense of pursuing the occupation of selling nonintoxicating malt liquors without paying the tax and procuring the license therefor. The opinion states the case.
64 Tex. Crim. 399Johnson v. State (1911)
1. —Murder—Charge of Court—Words and Phrases. Where defendant was charged with committing the homicide with a piece of board, and the court, in his charge in one place, only used the phrase “a piece of wood” instead of “board,” there was no reversible error. 2. —Same—Evidence—Bills of Exceptions. In the absence of a bill of exceptions, the complaint to the admissibility of testimony can not be considered. 3. —Argument of Counsel—Bill of Exceptions. In the absence of a bill of exceptions or special charge, a complaint of the argument of counsel can not be considered. 4. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained a conviction of murder in the second degree, there was no error. [Rehearing denied January ‘17, 1913.—Reporter.]
64 Tex. Crim. 401Gowans v. State (1912)
The opinion states the case.
64 Tex. Crim. 411Lutrall v. State (1912)
1. —Aggravated Assault—Practice on Appeal. In misdemeanor cases the trial court is not required to charge the jury unless requested to do so, and an error therein can .not be considered unless excepted to at the time, and a bill oí exceptions reserved. 2. —Same—Buie in Misdemeanor Cases. . In misdemeanor cases, unless the charge of the court is excepted to at the time and charges requested, the matter can not be reviewed on appeal. 3. —Same—Misconduct of Jury—Jury and Jury Law. Where the motion for new trial set out that one of the jurymen could not read or write, but no evidence was offered to sustain the motion, the matter could not be reviewed on appeal.
64 Tex. Crim. 413Edmanson v. State (1911)
Tried below before the Hon. M. M. White. Appeal from a conviction of unlawfully pursuing the occupation of taking orders for intoxicating liquors in local option territory; penalty; a fine of $6,000 and ninety days confinement in the county jail.
64 Tex. Crim. 435Sims v. State (1912)
1. —Theft from Person—Indictment—Description—Money. Where, upon trial of theft from the person, the property was described in the indictment as one pocketbook containing one ten dollar bill and two five dollar bills, all of the aggregate value of twenty dollars good and lawful money of the United States of America, the same was sufficient. 2. —Same—Sufficiency of the Evidence—Description of Property—Charge of Court—Current Money. Where, upon trial of theft from the person, the indictment charged the taking of one pocketbook containing one ten dollar bill and two five dollar bills, all of the aggregate value of twenty dollars good and lawful money of the United States of America, and the evidence showed that the pocketbook taken contained the money therein described as a ten dollar bill and two five dollar bills, the same was sufficient without showing that said bills were current money of the United States of America., and the failure to so charge the jury was not error. 3. —Same—Statutes Construed—Property—Money—Description. See opinion for a construction of article 446, Code Criminal Procedure, as to the term property, money, etc., and a description thereof, and articles 859 and 866, Penal Code, with regard to theft.
64 Tex. Crim. 444Williams v. State (1912)
Burglary—Evidence—Recent Possession—Sufficiency of the Evidence. See opinion for evidence held sufficient to connect the defendant with the burglary and to sustain the conviction. Davidson, Presiding Judge, dissenting:
64 Tex. Crim. 445Weeks v. State (1912)
local Option—Occupation—Intoxicating liquors—Indictment. Where, in a prosecution of unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient. Following Slack v. State, 61 Texas Crim. Rep., 372, and other cases.
64 Tex. Crim. 446Clinton v. State (1912)
The opinion states the case.
64 Tex. Crim. 448Price v. State (1912)
The opinion states the case.
64 Tex. Crim. 452Ex Parte Hendrix (1912)
From Travis County. Original habeas corpus asking release under a commitment from the County Court assessing a fine of $25 against. relator on an appeal from the Justice Court.
64 Tex. Crim. 454Smith v. State (1912)
The opinion states the case.
64 Tex. Crim. 462Leigh v. State (1912)
Assault to Murder—Charge of Court—Aggravated Assault—Intent. Where there may be one or more intents or purposes growing out of a transaction, that most favorable to the defendant must be given in charge to the jury, and where the defendant was indicted for assault to murder, and there was evidence raising the issue of aggravated assault, it was reversible error not to.submit that issue to the jury.
64 Tex. Crim. 464Bost v. State (1912)
1. —Seduction—Evidence—Bill of Exceptions. Where no bills of exception are reserved to the introduction of testimony, the same can not be considered on appeal. 2. —Same—Continuance—Discretion of Court. Where it was very improbable that the alleged absent witness would have testified as alleged in the application for continuance, and the same was addressed to the sound discretion of the court, there was no error in overruling same; besides, there was no diligence. 3. —Same—Argument of Counsel—Defendant’s Failure to Testify. Where, upon trial of seduction, there was evidence that prosecutrix wrote three letters to defendant, one of which was introduced in evidence, the argument of State’s counsel to the effect that defendant had failed to produce the other two letters, etc., was not a comment on the failure of defendant to give evidence against himself; besides, the bill of exceptions was defective. 4. —Same—Charge of Court—Article 723. Where, upon trial of seduction, the court, in his charge, sufficiently and correctly applied the law to the facts, arid the defendant asked no special instructions, there was no reversible error under article 723, Code Criminal Procedure, although there may have been some omissions in some particulars in the charge of the court. 5. —Same—Charge of Court—Time of Offense. Where, upon trial of seduction, the court charged the jury that if they believed from the evidence, etc., that defendant, at any time within three years next prior to the date of filing the indictment, seduced the prosecutrix, etc., to find him guilty, the indictment charging defendant on or about a certain date of the year in which the indictment was filed, there was no reversible error. 6. —Same—Charge of Court—Definition' of Seduction, Where, upon trial of seduction, the court’s charge properly defined the word “seduced” according to the precedents of this court, there was no error. Following Faulkner v. State, 53 Texas Crim. Rep., 258, and other eases. 7. —Same—Corroboration—Sufficiency of the Evidence. a Where, upon trial of seduction, the evidence sufficiently corroborated the testimony of -the prosecutrix, the conviction is sustained, and there was no error. See opinion for facts which sufficiently corroborate the testimony of prosecutrix. [Rehearing denied February 38, 1913.—Reporter.]
64 Tex. Crim. 480Hawkins v. State (1912)
Theft—Information—Words and Phrases—Bad Spelling. Where, upon trial of theft, the information and complaint, instead of using the word “appropriate,” used in lieu thereof “apprpriate,” the letter “o” being omitted in spelling the word, there was no error in overruling a motion to quash. Following Earp v. State, 41 Texas, 487, and other cases.
64 Tex. Crim. 482Butler v. State (1912)
1. —Local Option—Bills of Exception—Practice on Appeal. Where appellant prepares hills of exception in time, presents them to the opposing counsel and endeavors to get them acted upon by said counsel, and thereafter presents them in due time to the court and endeavors to get action from the court on them, and the court refuses to suggest any errors in the bills so presented and refuses to prepare other bills correctly setting .forth the exception, but simply marks the bills refused, the Court of Criminal Appeals will consider the bills so presented without the approval of the lower court. Following Éxon v. State, 33 Texas Crim. Rep., 461. 2. —Same—Bill of Exceptions—Bystanders. Where the court refused to allow the bills of exception presented to him and gave no reason for it, and prepared none in lieu of them, it was not necessary for the defendant to secure bills of exception from the bystanders. 3. —Same—Evidence—Defendant as a Witness. Upon trial of a violation of the local option law, defendant could not be made a witness against himself and compelled to testify that he had testified in a Magistrate’s Court, and admit that said testimony so given was false; the record showing that he was taken by a constable and brought before said Magistrate’s Court, and put under oath without warning and made to testify concerning the very transaction about which he was tried. 4. —Same—Evidence—Confessions—Arrest. Where the party is under arrest or in custody, not being cautioned as the statutes require, his testimony is incompetent; and where he was suspected and arrested for the very offense for which he was convicted in the trial court, there was reversible error. 5. —Same—Argument of Counsel. See opinion for admonition of the court to counsel for the prosecution not to travel outside of the record in their remarks to the jury.
64 Tex. Crim. 489Nelson v. State (1911)
1.—Keeping Assignation House—Bills of Exception—Motion for New Trial. Where the bills of exception to the admission of testimony were sought to be reserved in the motion for new trial, they can not be considered on appeal; besides, they were not signed by the judge. 3.—Same—Charge of Court—Practice on Appeal. Where no special charges were requested and no exceptions taken to the charge of the court, there was nothing to review; besides, the court’s charge was correct. 3.—Same—Sufficiency of the Evidence. Where, upon trial of keeping an assignation house the evidence supports the conviction, there was no error.
64 Tex. Crim. 490Lewis v. State (1912)
The opinion states the case.
64 Tex. Crim. 491Williams v. State (1912)
Aggravated Assault—Officer—Arrest—Charge of Court—Statutes Construed. Where, upon trial of aggravated assault upon an officer, in the discharge of his duty, the evidence showed that the latter had no warrant of arrest, and that if an offense was committed it was not in his presence, and that the officer had no legal right to arrest the defendant; and the court charged the jury that the arrest was authorized although the offense was not committed in the presence of the officer, there was reversible error. Article 259, Devised Code Criminal Procedure.
64 Tex. Crim. 494Williams v. State (1912)
The opinion states the case.
64 Tex. Crim. 495Burr v. State (1912)
The opinion states the case.
64 Tex. Crim. 497Terry v. State (1912)
The opinion states the case.
64 Tex. Crim. 498Morris v. State (1912)
The opinion states the case.
64 Tex. Crim. 501Adams v. State (1912)
1. —Sodomy—Allusion to Defendant’s Failure to Testify. Where, upon trial of sodomy, the State’s counsel commented on the fact that when defendant was arrested the prosecuting witness had charged him with the offense and he did not deny it, this was not an allusion to defendant’s failure to testify. 2. —Same—Bill of Exceptions—Qualification. Where appellant accepts the bill of exceptions as qualified by the lower court, he is bound thereby. 3. —Same—Newly Discovered Evidence—Identity. Where, upon trial of sodomy, the defendant was positively identified, and the so-called newly discovered evidence is not of that nature, as to identification, as to cause a reversal, there was no error. 4.—Same—Alibi—Sufficiency of the Evidence. Where the question of alibi was submitted to the jury, and the evidence sustained a conviction for sodomy, there was no error.
64 Tex. Crim. 504Rigsby v. State (1912)
The opinion states the case.
64 Tex. Crim. 510Jones v. State (1912)
Prosecuting witness testified that he had $80 in currency in his pocket when he saw defendants in a certain saloon; that while he and they were there, witness took some money out of his pocket and had it changed when he bought some beer; that late that night he started home and saw the defendants in the yard, who followed him, and one of them struck him with a rock; that they knocked him unconscious, and when he came to they pulled off his coat and carried him about a block…
64 Tex. Crim. 512Tyler v. State (1912)
The opinion states the case.
64 Tex. Crim. 514Thompson v. State (1912)
1. —Injuring Fence—Statement of Facts—Filing. Where the statement of facts was filed too late, the same must be stricken out on motion of the State. 2. —Same—Indictment—Name of Injured Party—Variance. Where the defendant was charged with pulling down and injuring the fence of W. G. Amos, without the consent of W. J. Amos, there was no variance. 3. —Same—Bills of Exception—Filing. Where the bills of exception in a misdemeanor case were filed_ more than twenty days after adjournment, they can not be considered on appeal.
64 Tex. Crim. 515Roman v. State (1911)
The opinion states the case.
64 Tex. Crim. 524Farris v. State (1912)
The opinion states the case.
64 Tex. Crim. 531Foster v. State (1912)
The opinion states the case.
64 Tex. Crim. 531Giesecke v. State (1912)
The opinion states the case.
64 Tex. Crim. 535Carlisle v. State (1912)
The opinion states the case.
64 Tex. Crim. 537Earles v. State (1912)
1. —Theft of Hog—Bill of Exceptions—Evidence. Where, upon appeal from a conviction of theft of a hog, the hill of exceptions did not show for what purpose the testimony was sought, the same could not be considered. 2. —Same—Evidence—Animus of Witness. Where, upon trial of theft of a hog, the defendant offered testimony to show the ill-feeling and animus of a State’s witness toward the defendant which was refused, there was reversible error. Following Bosborrough v. State, 21 Texas Crim. App., 672, and other cases. 3. —Same—Evidence—Impeachment. Where the object of the introduction of the examining trial testimony was to show that the State’s witnesses at said trial testified differently than they did upon final trial, the same should have been admitted. 4.—Same—Evidence—Impeaching Witness. Upon trial of theft of -a hog, testimony that the alleged owner first accused another party of t.he theft, and that he desisted because he expected to get into trouble, and that he changed his testimony, should have been admitted.
64 Tex. Crim. 541Knight v. State (1912)
64 Tex. Crim. 594Harris v. State (1912)
The opinion states the case.
64 Tex. Crim. 607Sanford v. State (1912)
The opinion states the case.
64 Tex. Crim. 610Sparks v. State (1912)
The opinion states the case.
64 Tex. Crim. 612Berg v. State (1911)
1.—Murder—Jurisdiction—Change of "Venue—Practice in District Court— Transcript. Where, in a prosecution for murder, the attorneys of both parties agreed orally that the venue of the case should be changed hack to the county from which it had come by change of venue, and the court duly entered an order changing back the venue to the county" where the prosecution arose, this divested the court making such order of further jurisdiction, and a plea to the jurisdiction in the county to which the case had been last ordered, on the ground that no transcript was filed of the last change of venue, was correctly overruled upon an oral showing without objection that the venue was then changed back to the original county; the transcript being filed thereafter, which had been omitted to be done at the time of said plea by some oversight or delay; it also appearing that defendant had entered into a new bond in said last named county and had never questioned the matter for nearly two years, and until a motion for continuance had been overruled. 2. —Same—Continuance—Bill of Exceptions. In the absence of a bill of exceptions an order overruling the motion for a continuance, on account of the absence of counsel and the witnesses named therein, can not be considered on appeal. 3. —Same—Substitution of Indictment. Where the original indictment had been lost, there was no error in permitting the district attorney to substitute the same. 4. —Same—Jury and Jury law—Challenge. . Where it -was not claimed that the juror who sat upon defendant’s case, and whom he could not challenge because he had exhausted his challenges, had any formed opinion, bias or prejudice, there was no error. 5. —Same—Requested Charges—Practice on Appeal. Where no reason is assigned in the motion for new trial why requested charges should have been given, but it is only stated that the court erred in not giving them, there was nothing to review. 6. —Same—Rule Stated—Bill of Exceptions. The primary object of a bill of exceptions reserved to the charge of the court is to call the attention of the trial judge to the particular matter complained of, so that he may be afforded an opportunity to correct any error he may have fallen into, and to enable the Appellate Court to ascertain what error was committed, and this can not be done by a general exception, but must appear by the allegations of the bill. 7. —Same—Rule Stated—Motion for Hew Trial. In the absence of a bill of exceptions, when the matter is complained of for the. first time in a motion for a new trial, the reasons must be stated as specifically as is required in a bill of exceptions. 8. —Same—Postponement—Jurisdiction. Where the court had jurisdiction, a motion to postpone on account of want of jurisdiction was correctly overruled. 9. —Same—Evidence—Motion to Strike Out. Where no exception was reserved to the testimony of the State’s witness, and the same was admitted without objection, a motion to strike out was correctly overruled, and the defendant could not reach this matter by a special charge withdrawing said testimony; especially, where no reasons were given in the special charge why said testimony was not admissible. 10. —Same—Jury and Jury law—newspapers—Bill of Exceptions. In the absence of a bill of exceptions showing that the jury read newspapers during the trial, and that the same resulted in injury to the defendant, there was no error. 11. —Same—Evidence—Bill of Exceptions. In the absence of a bill of exceptions to the testimony of a witness given on a former trial, the same can not be considered on appeal; besides, this testimony was admitted without objection. 12. —Same—Charge of Court—Murder in the First Degree. Where the court instructed on murder in the first degree for the purpose of better enabling the jury to understand the essentials of murder in the second degree and for no other purpose, and the defendant was convicted of murder in the second degree, there was no error; although defendant had been acquitted of murder in the first degree .at a former trial. 13. —Same—Charge of Court—Motion for New Trial. The motion for new trial must specifically point out the error in the charge of the court, and a general exception to the charge of the court in said motion can not be considered on appeal. 14. —Same—Arrest of Judgment—Jurisdiction. Where the court had jurisdiction, a motion in arrest of judgment for want of jurisdiction was correctly overruled. 15. —Same—Assignments of Error—Practice on Appeal. On appeal, the court looks alone to the bills of exception and the motion for new trial, and assignments of error filed in the Appellate Court or contained in the brief can not be considered. [Rehearing denied January 15, 1912.—Reporter.]
64 Tex. Crim. 621Lyles v. State (1912)
1. —Murder—Continuance—Depositions. Where the application for continuance showed that it was the eighth application, and that one of the alleged absent witnesses had been out of the State for seven years, and the other was confined to her bed for an equal number of months, the defendant should have made some effort to get their depositions. 2. —Same—Evidence—Dying Declarations—Impeachment. Where, upon trial of murder, the court refused to admit testimony to impeach the dying declarations of deceased, which strongly corroborated defendant’s version of the homicide, there was reversible error; there being no showing that at the time the deceased made contradictory statements that he was under the influence of opiates, etc. 3. —Same—Evidence—Conclusion of Witness. Where the witness had detailed all she saw and heard of the homicide at the time, it was not permissible to show what she would have done under certain circumstances. 4. —Same—Charge of Court—Filing—Nunc Pro Tune. Where the court gave additional instructions in writing, and his attention was called to the fact that this charge was not filed, and the court instructed the clerk to place the file mark thereon nunc pro tunc, before an appeal was perfected, there was no error. 5. —Same—Evidence—Bill of Exceptions. Where no bill of exceptions was reserved to the introduction of testimony, the matter could not be considered on appeal; besides there was no error in admitting the dying declarations and the testimony surrounding it. 6. —Same—Temporary Insanity—Intoxicating Liquor—Charge of Court. Where, upon trial of murder, the court properly instructed the jury that intoxication, or temporary insanity caused by the voluntary recent use of ardent spirits, will not constitute an excuse for the commission of crime, but may be considered in mitigation of the punishment to be assessed, there was no error. 7. —Same—Requested Charges. Where the requested charges were covered by the main charge, there was no error. 8. —Same—Evidence—Dying Declarations—Opinion of Witness. Where the proffered evidence in positive terms contradicted the dying declarations of the deceased introduced by the State, this was not an opinion of the witness, but a statement of facts and should have been admitted in evidence. Following Orange v. State, 47 Texas Crim. Rep., 337, and other cases.
64 Tex. Crim. 628Ryan v. State (1911)
1. —Murder—Severance—Affidavit—Practice—Statutes Construed. In a motion for severance, an affidavit is only required when one of the defendants desires the evidence of the other and that the latter be tried first; where no affidavit is filed, the court directs which one of the defendants is to be tried first. Article 706, Code Criminal Procedure construed. 2. —Same—Evidence—Codefendant—Witness—Statutes Construed. Upon trial of murder there was no error in permitting a codefendant to remain in the courtroom, as he could not testify for the defendant, and was not offered as a witness for the State; and the court correctly refused to permit him to testify or to permit his evidence at the examining trial to be introduced for defendant. Article 771, Code Criminal Procedure construed. 3. —Same—Evidence—Codefendant. A codefendant can not be witness for a defendant either directly or indirectly, and what he told a third party about the homicide is inadmissible. 4. —Same—Evidence—Dying Declarations. Upon trial of murder, there was no error in admitting in evidence both the written and oral dying declarations of the deceased, proper predicate having been laid. 5. —Same—Evidence—Wife of Codefendant. Where defendant himself objected that the wife of the codefendant be permitted to testify, he could not complain that an attorney who was not employed by him made the same objections; besides, the bill of exceptions as to the admissibility of such testimony is defective and can not be considered on appeal. 6. —Same—Witnesses Under Rule—Discretion of Court. The matter of placing witnesses under the rule and permitting them to converse with or hear testimony of other witnesses is largely in the discretion of the court, and where the bill of exceptions does not show the character of the testimony admitted, the same can not be considered on appeal. 7. —Same—Evidence—Res Gestae. Where the statement of the witness, as to what she said and what the deceased told her as to who did the killing, was in such close proximity of the scene and time of the homicide that defendant could probably have heard at least some of it, the same was res gestae and admissible in evidence. 8. —Same—Evidence—Principals. Where, upon trial of murder, the defendant had testified that he did not know of any trouble between his codefendant and deceased, and it was shown that the defendant was present at the homicide, there was no error to admit testimony that said codefendant and defendant were together shortly before the homicide and that the latter was aware that the former and deceased were likely to have trouble; both as impeaching and original testimony. 9. —Same—Evidence—Fabrication of Testimony. Upon trial of murder, where the evidence showed that defendant and his codefendant were together at the time the latter shot deceased in his bedroom, and that no knife was seen near him, then there was no error in admitting testimony that the State’s witness had loaned a poeketknife, which was after-wards found in the bed of deceased, to said codefendant, and that defendant had been seen in the room of deceased near the cot on which he lay. 10. —Same—Accomplice—Principal—Accessory—Charge of Court. Where, upon trial of murder, the evidence showed that the defendant was present at the time his codefendant shot and killed the deceased; that they had been together the entire afternoon before the killing, that he placed an open poeketknife near the deceased after the shooting, and that he must have known his codefendant’s intent to kill deceased, he was neither an accomplice nor an accessory, and the court’s failure to charge thereon was not error, as defendant was a principal under the evidence. 11. —Same—Charge of Court—Rule Stated. No error assigned in the motion for new trial will be considered on appeal, unless the motion specifically points out the error, and when complaint is made of failure to give a special charge, the reasons why said charge should have been given must be assigned in the motion for new trial or in a bill of exceptions, otherwise, the same can not be considered. 12. —Same—Charge of Court—Practice on Appeal. Where a paragraph of the court’s charge is subject to the criticism contained in the brief, yet in the motion for new trial no complaint is made thereof, the same can not be considered on appeal. Following Joseph v. State, 59 Texas Crim. Rep., 84, and other cases. 13. —Same—Charge of Court—Motion for New Trial—Practice on Appeal. Complaints of the charge of the court or failure to give special charges requested, occurring for the first time in the motion for new trial, are in the nature of bills of exception and must be equally specific. 14. —Same—Evidence1—Charge of Court. Upon trial of murder, there was no error in admitting impeaching testimony of defendant’s statements as well as that he knew that trouble existed between his codefendant and deceased when they went to the latter’s hotel, and that defendant was urging trouble, and there was no error in the court’s failure to limit this testimony, or that a knife had been found with the deceased. 15. —Same—Argument of Counsel—Bill of Exceptions. In the absence of a bill of exceptions, an objection to the argument of counsel, can not be considered. [Rehearing denied January 17, 1912.—Reporter.]
64 Tex. Crim. 639Renn v. State (1911)
The opinion states the case.
64 Tex. Crim. 660Moreno v. State (1911)
The opinion states the case.