65 Tex. Crim.

Volume 65 — Texas Criminal Reports

133 opinions

65 Tex. Crim. 1Bailey v. State (1912)
1. —Murder—Evidence—Declarations of Defendant—Post Cards—Motive. Where, upon trial of murder, the State claimed that defendant’s motive in committing the alleged homicide was to secure the life insurance on his wife’s life, and that he indiscriminately mingled arsenic in coffee of which his wife, the deceased, and others drank, and the case was one of circumstantial evidence, there was no error in admitting testimony that the defendant had proposed to write to some women who were advertising for husbands and that thereupon he received a number of post cards from them which were also admitted in evidence. 2. —Same—Evidence—Identification. Upon trial of murder, by mingling arsenic with coffee, there was no error in admitting the testimony of a druggist that he had sold, about a week before the poisoning, some commercial arsenic to a person whom he could not identify, but whom he described, the testimony of the State showing that defendant was in the town where the arsenic was sold about the time it was ' sold to the man whom the witness described, and which description corresponded' somewhat with defendant; it having also been shown that defendant made the coffee in which similar arsenic was found. 3. —Same—Evidence—Voluntary Statement of Defendant—Grand Jury. Where, upon trial of murder, it was shown that the defendant made a voluntary written statement before the grand jury after he was suspected of the murder, and which was with reference thereto, the same did not come within the scope of the statute relating to extra judicial confessions- and was admissible in evidence, he having been duly warned. 4. —Same—Evidence—Expert Analysis—Arsenic. Where, upon trial of murder, the defendant objected to the expert analysis made of the mixture in which arsenic was contained and of which deceased had drank and died, on the ground that it was not shown that the mixture had been delivered to the chemist who had made the analysis; and it appeared that the testimony showed that it was the identical mixture or coffee from which deceased drank and from which she died, there was no error. I .me—Imputing Crime to Another—Evidence. Where, upon trial of murder, the question asked defendant’s witness corroborated the State’s witness and did not in any way impeach his testimony or tend to connect another with the crime, there was no error in excluding it. 6. —Same—Evidence—Harmless Error. Where, upon trial of murder, the question asked a State’s witness whether his sympathies were not entirely with the defendant, etc., which he answered in the negative, while probably improper, was harmless error, if any. There was no reversible error. 7. —Same—Evidence—Habits of Defendant. - Where, upon trial of murder, the theory of the State was that the defendant had poisoned the deceased in an attempt to poison his wife to get the insurance on her life, there was no error in admitting testimony that defendant had said that he had collected certain insurance money on account of an accident; as this would tend to show that defendant had a mania for insurance money; the case being one of circumstantial evidence. 8. —Same—Verdict—Practice—Statutes Construed. Upon trial of murder, there was no error in -the action of the court that when the jury returned a verdict which did not state the degree of murder in retiring them to find the degree of murder and so state in their verdict; whereupon' the jury returned a verdict of murder in the first degree. Article 712, Penal Code. 9. —Same—Motion for New Trial—Bill of Exceptions. A bill of exceptions, presenting the evidence on a motion for new trial, must be filed during the term of court, and bills presented subsequent to the adjournment of court, can not be considered on appeal. Following Probest v. State, 60 Texas Crim. Rep., 608. 10. —Same—Charge of Court—Express and Implied Malice—Murder by Poison —Statutes Construed. Under article 711, Penal Code, all murder committed by poison is murder in the first degree, and where the indictment charged such homicide, and the evidence tended to sustain it, although it appeared that defendant intended to poison another and not deceased, but that he showed a reckless disregard of human life, there was no error in the court’s charge that murder in the first degree in this case could be predicated upon either express or implied malice. Following Tooney v. State, 5 Texas Crim. App., 189, and other cases. 11. —Same—Charge of Court—Weight of Evidence—Words and Phrases. Where, upon trial of murder, by means of arsenic poisoning, the court instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that such poisoning was the act of another and not that of the defendant, especially naming defendant’s wife, to acquit defendant, the same was not on the weight of evidence, and the omission of the words “wife of defendant” after her name could not have misled the jury. Following Blocker v. State, 55 Texas Crim. Rep., 30. 12. —Same—Charge of Court—Confession. Upon trial of murder, where defendant’s voluntary statement was introduced by the State, there was no error in the court’s charge that such statement must be taken together, and that the State is bound by all of it, unless the State has shown by the evidence that it is untrue. Following Combs v. State, 52 Texas Crim. Rep., 613, and other cases. 13. —Same—Limiting Evidence—Charge of Court. Where, upon trial of murder by arsenic poisoning mingled with coffee, the evidence showed that defendant’s wife and others also drank of the coffee from which deceased died, and that they became very ill, the court properly limited such evidence to the intent of defendant. 14. —Same—Charge of Court—Arsenic Poisoning. Where, upon trial of murder by means of arsenic poisoning, the evidence was clear that the death of deceased was occasioned by arsenic, there was no error in failing to instruct the jury that if deceased came to his death from lead or zinc poison, to acquit. 15. —Same—Jury and Jury law—Opinion of Juror. Where, upon trial of murder, the defendant claimed after conviction that one of the jurors had expressed an opinion as to the guilt of defendant, and it appeared that his counsel was informed of this fact before the jury retired to consider their verdict, but raised no objection until after the verdict was rendered, there was no error; besides, this issue was tried and decided by the court adversely to defendant, and the bill of exceptions was not filed until after adjournment. 16. —Same—Hewly Discovered Evidence—Result. Where the alleged newly discovered evidence attempted to show that defendant's wife, some two years before the homicide, said that she had a little arsenic in her possession, but it appeared from the record that defendant was with his wife on this occasion, it was not newly discovered evidence; besides, the record showed that defendant’s wife drank of the alleged poisoned coffee which very nearly caused her death, etc., and that said alleged newly discovered evidence would probably not have produced a different result upon another trial. ° 17. —Same—Hewly Discovered Evidence. Where part of the alleged newly discovered evidence would not have been admissible, and a portion of it was such that defendant must have had knowledge of it, and still another portion was simply of an impeaching character, there was no error in overruling a motion for new trial on this ground. 18. —Same—Sufficiency of the Evidence. Where, upon trial of murder by means of mingling arsenic in coffee, the evidence sustained the conviction, there was no error. 19. —Same—Confessions—Statutes Construed. Evidence voluntarily given before a grand jury, in an effort to prevent an indictment, does not come within the provisions of article 790, Code Criminal Procedure, as amended. 20. —Same—Charge of Court—Confessions. Where, upon trial of murder, the State introduced a written statement made by the defendant before the grand jury, there was no error in the court’s charge that the whole of said statement and evidence of the defendant as given before said grand jury and admitted in evidence, must be taken together and that the State is bound thereby, unless it has shown the same to be untrue, and that such statements are to be taken into consideration in connection with all the other facts and circumstances of the case. Overruling Wallace v. State, 66 S. W. Rep., 1102. Approving Pratt v. State, 59 Texas Crim. Rep., 635. 21. —Same—Charge of Court—Limiting Testimony. Where, upon trial of murder by means of arsenic poisoning, the evidence showed that defendant’s wife and others besides the deceased suffered injury from drinking the coffee in which the arsenic was mingled, there was no error in the court’s charge limiting said testimony to the question of defendant’s intent. Following Thornley v. State, 36 Texas Crim. Rep., 118, and other cases. 22. —Same—Bill of Exceptions—Statement of Facts—Motion for Hew Trial. When evidence is taken on motion for new trial and is preserved by bill of exceptions which is filed after adjournment, it stands on the same footing with a statement of facts containing such evidence which is filed after adjournment, and neither can be considered on appeal. Following Black v. State, 41 Texas Crim. Rep, 185. 23. —Same—Circumstantial Evidence—Rule Stated. Where the case is one of circumstantial evidence, the mind seeks to explore every possible source from which light, however feeble, may be derived, and no definite line of demarkation can be drawn with regard to facts proximate and remote. Following Noftsinger v. State, 7 Texas Crim. App., 301, and other eases. 24.—Same—Practice on Appeal—Rehearing. Matters which are not raised by bill of exceptions or ground in the motion for new trial can not he considered in a motion for rehearing. Following Flournoy v. State, 57 Texas Crim. Rep., 88, and other cases.
65 Tex. Crim. 18Salinas v. State (1911)
The opinion states the case.
65 Tex. Crim. 25Howard v. State (1911)
The opinion states the case.
65 Tex. Crim. 33Sandoloski v. State (1911)
1. —Local Option—Continuance—Cumulative Testimony. Where the application for continuance was not in compliance with the law, and the absent testimony cumulative, it was correctly overruled. 2. —Same—Information—Complaint—Variance—Statutes Construed. Where the information stated that it was founded upon testimony taken in behalf of the State under oath, the complaint being in the usual form and sworn to, there was no variance. It is not necessary to allege that the information is founded on a complaint. Articles 430 and 431, Code Criminal Procedure. 3. —Same—Evidence—Other Transactions. Where the defendant told the witness that he was shipping Hiawatha to other parties, there was no error in permitting the witness to testify that defendant had shipped to other parties. 4. —Same—Evidence—Other Offenses. Where the testimony that the witness had been convicted for selling the same stuff was promptly excluded by the court, there was no error. 5. —Same—Charge of Court—Intoxicating liquors—Definition—Hiawatha. Where the court properly instructed on the definition of intoxicating liquors, there was no error in refusing special charges which required unconsciousness or delirium as a result of drinking same. 6. —Same—Charge of Court. Upon trial of a violation of the local option law, there was no error in refusing a special charge not applicable to the evidence. 7. —Same—Charge of Court—Punishment—Statutes Construed. W'here the prosecution for the violation of the local option law was had under the misdemeanor statute, of which defendant was convicted, the defendant could not complain because an election had been held resulting in local option after the felony statute became a law, as the defendant was tried under the law in' force when the offense was committed. Article 407, Penal Code construed. 8. —Same—Other Offenses—Misconduct of Jury. Where, upon trial of a violation of the local option law, a State’s witness testified that he had been convicted for selling the same kind of liquor, which testimony was promptly excluded, and it developed on motion for new trial that the jury had not discussed this matter, or had been influenced in such a manner as to vitiate their verdict, and that it was questionable whether it was discussed at all, there was no error. 9. —Same—Statement of Pacts—Motion for New Trial—Stating Pacts. A statement of facts of testimony taken on motion for new trial must be filed during term time' of the trial court, and can not be filed thereafter. Following Probest v. State, 60 Texas Crim. Rep., 608. See opinion on rehearing correctly stating facts in record.
65 Tex. Crim. 40Scott v. State (1912)
The State’s testimony showed that the defendant cut prosecutor with a knife, over the left nipple, which confined him to the hospital for about two weeks; that prosecutor was not doing anything at the time to provoke the defendant, and that they had no previous trouble and were not acquainted at the time; that while prosecutor was going home walking down the sidewalk, defendant ran up behind him, and as prosecutor turned his face, cut him with a' knife; the prosecutor fell, was picked up and carried to the hospital in an ambulance. The defendant’s testimony was that while he was interfering to stop an altercation between two Mexicans, the prosecutor, also a Mexican, approached and attempted to draw a knife or a gun; that this occurred in a saloon, and that when defendant stepped out, one of the Mexicans, not the prosecutor, struck defendant in the face and ran up the street, defendant following him and prosecutor following defendant; that the Mexican running away kept throwing bricks at the defendant, and that someone cried out to defendant to look out that the prosecutor was going to cut him, and that then defendant turned and struck prosecutor with a knife; that he struck him but once and did not intend to kill him. The defendant introduced no other testimony, but there were several State’s witnesses who corroborated the prosecutor’s testimony.
65 Tex. Crim. 43Johnson v. State (1912)
1.—Theft of Horse—Jury and Jury Law—Practice. Where the ground of objection, as to the eligibility of the juror wa°s not verified, the same could not he considered on appeal. 2.—Same—Plea of Not Guilty. Where the judgment recites that the defendant pleaded not guilty, and there is nothing to the contrary in the record, there is no error.
65 Tex. Crim. 44Adams v. State (1912)
1. —Forgery—Identification. Where, upon trial of forgery, the evidence showed the identification of the defendant and supported the conviction, there was no error. 2. —Same—Preparation for Trial—Newly Discovered Evidence. Where it is apparent, from the record on appeal, that the matters which appellant insists he could show if granted a new trial were as well known by him before trial as after the trial, and he made no effort to secure this testimony, and refused to accept the appointment of counsel, there was no error.
65 Tex. Crim. 46Bowen v. State (1912)
The opinion states the case.
65 Tex. Crim. 48Wormley v. State (1912)
The opinion states the case.
65 Tex. Crim. 49Gregg v. State (1912)
The opinion states the case.
65 Tex. Crim. 50Hogan v. State (1912)
The opinion states the case.
65 Tex. Crim. 51Pope v. State (1912)
1. —Carrying Knuckles—Recognizance—Reinstatement. Where a sufficient recognizance was filed after the dismissal of the appeal, the same is reinstated. 2. —Same—Conflict of Evidence. Where the evidence is conflicting, the matter is a question of fact for the jury. 3. —Same—Evidence—Credibility of Witness. Where, upon trial of carrying brass knuckles, the defendant sought to prove facts which showed motive on the part of the witness who testified against him, and that the latter desired the conviction of the defendant and had provoked a former difficulty with the defendant, etc., the same should have been admitted to show the bias, interest, and prejudice of the witness and thus attack his credibility. 4. —Same—Evidence—Animus—Credibility of Witness. Upon trial of unlawfully carrying brass knuckles the defendant should have been permitted to .show the animus of a State’s witness against the defendant, to attack his credibility, by showing that the latter objected and interfered when parties sought to separate the defendant and prosecutor, etc. 5. —Same—Evidence—Character of Wound. Where, upon trial of unlawfully carrying brass knuckles, there was a conflict in the evidence as to whether defendant struck the prosecutor with brass knuckles or whether the prosecutor used the same on the defendant, it was reversible error not to permit the defendant to show the character of wound and bruises which were inflicted upon him by the prosecutor; the defendant denying that he used any brass knuckles.
65 Tex. Crim. 55Murphy v. State (1912)
1. —Seduction—Age of Consent—Rape—Carving. Where, upon trial of seduction, the evidence showed that the prosecutrix was over fourteen and under fifteen years of age at the time she became engaged to marry defendant and the act of carnal intercourse took place, the State could elect to prosecute for seduction or rape; the law permitting a marriage of a female over fourteen years of age. Article 2955, Revised Civil Statutes. 2. —Same—Evidence—Declaration of Third Party. Upon trial of seduction, the declaration of a third party, not a witness, tliat he had intercourse with the prosecutrix is inadmissible. 3. —Same—Charge of Court—Accomplice. Where the court charged the jury that they could not convict upon the testimony of the accomplice alone, unless they first believed her testimony to be true, and that it showed defendant is guilty of the offense charged in the indictment, and not even then, unless they believe that there is other test!mony tending to connect the defendant with the offense charged, there waa no error. Following Campbell v. State, 57 Texas Crim. Rep., 301, and other cases. 4. —Same—Charge of Court—Corroboration. Where, upon trial of seduction, the court’s charge required the accomplice-worthy of credit, and that the corroborating evidence tended to connect the defendant with the commission of the offense, although not directly and positively when independently considered, there was no error. 5. —Same—Charge of Court—Intercourse—Promise of Marriage. Where, upon trial of seduction, the court’s charge substantially complied with article 769, Code Criminal Procedure, a failure to specifically require that the prosecuting witness be corroborated both as to the act of intercourse and the promise of marriage, was not error. Following Nash v. State, 61 Texas Crim. Rep., 259, and other cases. 6. —Same—Evidence—Other Acts of Intercourse. Upon trial of seduction there was no error in permitting the prosecutrix to testify to other acts of intercourse with the defendant, after she had testified to the first act of intercourse. Following Hinman v. State, 59 Texas Crim. Rep., 29. 7. —Same—Charge of Court—Accomplice—Motion for New Trial. Where appellant’s complaint of the court’s failure to instruct on accomplice testimony was not set out in his motion for new trial or special instruction, but only in his brief, the same could not be considered; besides, there was no error. Following Flournoy v. State, 57 Texas Crim. Rep., 88. 8. —Same—Charge of Court—limiting Testimony. Where the defense testimony was admitted generally as well as for impeachment, there was no error in the court’s failure to limit same. 9. —Same—Insufficiency of the Evidence—Elements of Seduction. Where, upon trial of seduction, the evidence did not disclose those attentions or acts on the part of the defendant toward the prosecutrix which it takes to win a woman’s affection and confidence, and there were absent those arts, wiles and blandishments so necessary to win the heart of the weaker sex, and which would cause prosecutrix to yield her person under circumstances that would constitute seduction, the conviction could not be sustained. 10. —Same—Evidence—Corroboration. Where, upon trial of seduction, the corroborating circumstances relied on to prove the promise of marriage, fixed the date subsequent to the act of intercourse, and the corroboration as to this first act of intercourse was very meagre when taken together with defendant’s positive denial, the conviction could not be sustained; especially, where other parties had equal opportunity to have had carnal intercourse with prosecutrix.
65 Tex. Crim. 62Roberts v. State (1912)
The opinion states the case.
65 Tex. Crim. 65Smith v. State (1912)
The opinion states the case.
65 Tex. Crim. 67Suggs v. State (1912)
1. —Theft—Ownership—Possession—Statutes Construed. Where, upon trial of theft, the court instructed the jury that where one person owns the property and another has the possession, charge and control of same, the ownership may be alleged in either, there was no error. 1483 White’s Ann. Penal Code. 2. —Same—Charge of Court—Circumstantial Evidence. Where, upon trial of theft, the evidence was circumstantial, the court correctly charged thereon, and there was no error. 3. —Same—Charge of Court—Recent Possession—Explanation. Where, upon trial of theft, the court correctly charged on recent possession and explanation of the alleged stolen property, there was no error. 4. —Same—Sufficiency of the Evidence. Where, upon trial of theft, the evidence sustained a conviction, there was no error.
65 Tex. Crim. 69Jones v. State (1912)
1. —Murder—Charge of Court—Manslaughter—Words and Phrases. Where, upon appeal from a conviction of , murder, it appeared from the record that no complaint was made to the use of the word “transport,” in the phrase, “in a sudden transport of passion aroused by adequate cause,” in the charge of manslaughter, either by bill of exceptions or the motion for new trial, the. objection came too late when made for the first ti.me in the Appellate Court, to be considered. 2. —Same—Continuance—Want of Diligence—Depositions. Where, upon trial of murder, the application for continuance did not show the proper diligence to enforce the attendance of the alleged absent witness, or to procure testimony by deposition if witness was out of the State, there was no error in overruling same. 3. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not show how the question and answer were prejudicial to the defendant, and did not show how the court had committed error in permitting the questions to be asked and answered by the witness, the same could not be considered on appeal. [Rehearing denied February 28, 1912.—Reporter.]
65 Tex. Crim. 78Ballard v. State (1912)
The opinion states the case.
65 Tex. Crim. 78Brown v. State (1912)
The opinion states the case.
65 Tex. Crim. 80Taff v. State (1912)
The prosecutrix testified that about half past nine at night the defendant tried to get into her house; that he first called, hallo, then went away and returned and again called, hallo, and -after repeating this several times in the yard, he came on the gallery and knocked at the door and tried to open the same, saying that he wanted the prosecutrix to come out, and to be so kind and do so; that the prosecutrix ordered him away, when defendant -came around to the window…
65 Tex. Crim. 82Williams v. State (1912)
1. —Burglary—Argument of Counsel. While it was improper in State’s counsel’s argument to the jury to state the reasons why he concluded to abandon the first count in the indictment charging assault with intent to rape, it was no reversible error, as no injury could result to the defendant. 2. —Same—Charge of Court—Dismissal of Count. Where the State dismissed a count in the indictment the court should not have charged thereon. 3. —Same—Charge of Court—Sufficiency of the Evidence. Where, upon trial of- burglary to commit theft, the evidence sustained the conviction, there was no error in refusing a charge acquitting the defendant. 4. —Same—Husband and Wife—Want of Consent. Where, upon trial of burglary of a private residence at night, the property of the husband, the State was permitted to show that the house was broken into and entered without the consent of the wife, it being shown that the husband was away, there was no reversible error, although it was unnecessary for the wife to so testify, unless defendant had sought to show her consent. 5. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of burglary, the evidence did not raise the issue of circumstantial evidence, there was no error in the court’s failure to charge thereon. See opinion for acts not raising the issue of circumstantial evidence. Following Montgomery v. State, 55 Texas Crim. Rep., 502, and other cases. 6. —Same—Domestic Servant—Tenant—Charge of Court. The term, domestic servant, does not include a tenant whose employment is out of doors and not in the house, and there was no error in the court’s failure to charge on the law of domestic servant. Following Waterhouse v. State, 21 Texas Crim. App., 663, and other cases. 7. —Same—Sufficiency of the Evidence—Breaking—Entry—Intent to Steal. Where, upon the trial of burglary in the night-time of a private residence, the "evidence showed that defendant knew that money was kept about the house, and that he broke and entered therein in the night-time, it may be inferred from the surrounding circumstances that the burglary was intended to commit theft. Following Alexander v. State, 31 Texas Crim. Rep.; 359, and other cases.
65 Tex. Crim. 87Newton v. State (1912)
The opinion states the case.
65 Tex. Crim. 91George v. State (1912)
The opinion states the case.
65 Tex. Crim. 92Johnson v. State (1912)
The opinion states the case.
65 Tex. Crim. 93Lawrence v. State (1912)
1. —Murder—Insanity—Charge of- Court. Where, upon trial of murder, the issue of insanity from the use of intoxicating liquors and drugs was raised by the evidence, the court should have charged the jury that if the defendant was temporarily insane from the use of intoxicating liquors alone, it could be considered by them in determining the degree of murder and in mitigation of the penalty; but if they found defendant was insane, and- such insanity was caused by the use of drugs or the use of drugs and ardent spirits combined, he should be acquitted. 2. —Same—Rule Stated—Insanity—Drugs—Ardent Spirits—Statutes Construed —Common Law. If a person is insane, and the insanity was caused by the use of drugs alone, or by the use of drugs and ardent spirits combined, the common law rule prevails, and he should be acquitted. If the temporary insanity is caused by the use of ardent spirits alone, then the law as announced in article 41, Penal Code, should be applied.
65 Tex. Crim. 96Sprowles v. State (1912)
1. —Carrying Pistol—Complaint—Information—Piling. Where the complaint and information were filed on the same day, hut .the complaint was not sworn to until the next day after the filing, the information was not supported by the complaint. 2. —Same—Charge of Court—Practice on Appeal. Where, upon trial of unlawfully carrying a pistol, no charge was asked or exceptions taken with reference to the court’s refusal to submit defendant’s theory of defense, the same could not be reviewed on appeal. 3. —Same—Posse—Defensive Theory. Where defendant was summoned by the city marshal to" assist him to do police duty, who authorized him to carry arms, he is not guilty of a violation of the law, although he did not return the pistol to the person indicated by the marshal, but to another.
65 Tex. Crim. 98Goodwin v. State (1912)
1. —Gaming—Sufficiency of the Evidence. Where, upon trial of keeping a place for gaming, the evidence sustained the conviction, there was no error. 2. —Same—Grand Jury—Bill of Exceptions. Where the question of the organization of the grand jury was not presented by a bill of exceptions or otherwise, the Appellate Court could not pass thereon. 3. —Same—Calling Case Out of Regular Order—Discretion. Under article 651 (new) Code Criminal Procedure, the calling of eases on the court’s docket is largely in the discretion of the court, and unless injury is shown, no reversible error is presented. Following Wright v. State, 10 Texas Crim. App., 476, and other cases. 4. —Same—Vagrancy—Repeal—Statutes Construed. Article 559 (new) Penal Code, relating to gaming, is not repealed by the Vagrancy Act of 1909. Following Parshall v. State, 62 Texas Crim. Rep., 177. 5. —Same—Statutes Construed—Repeal—Eelony—Misdemeanor. The Act of 1907, article 559, (new) Penal Code, making it a felony to be interested in gaming, if in conflict, repealed article 572 (new) Penal Code, of the Act of 1881; but this last article is for permitting gaming, and the facts do not apply thereto. 6. —Same—Charge of Court—Theory of Defense. Where, upon trial of keeping a certain place for gambling purposes, etc., defendant, by his testimony, denied that any gambling was carried on on his premises, and if it was, that the same was without his knowledge or consent, the court should have submitted this issue to the jury; especially, where the same was requested by proper charge, and the same was reversible error.
65 Tex. Crim. 102Luttrell v. State (1912)
1. —Assault to Murder—Bill of Exceptions. Where the bill of exceptions did not point out the object and purpose of the rejected testimony, the same could not be considered on appeal; although the same might have been admissible for impeachment. 2. —Same—Variance—Name of Party Injured. Where the indictment alleged an assault to murder upon Edward Oscar Williams, and the evidence showed that the difficulty occurred between defendant and Oscar Williams, and there was nothing in the record to show that they are the same parties or that the party injured was commonly called Oscar Williams, the variance is fatal. Following Brown v. State, 53 Texas Crim. Rep., 303, and other cases. 3. —Same—Charge of Court—Adequate Cause—Pain and Bloodshed. Where, upon trial of assault to murder, the court’s charge left the adequate cause to the determination of the jury, and the evidence showed that prosecutor’s attack on defendant before the assault by defendant produced pain and bloodshed, this matter should have been submitted to the jury as adequate cause. Following Gallaher v. State, 55 Texas Crim. Rep., 50, and other cases. 4. —Same—Charge of Court—Cooling Time. Where, upon trial of assault to murder, the evidence raised the issue of cooling time, the same should have been submitted to the jury. 5. —Same—Charge of Court—Self-Defense. Where, upon trial of assault to murder, the evidence raised the issue of self-defense, the same should have beén submitted to the jury.' Following High-tower v. State, 56 Texas Crim. Rep., 248, and othes cases.
65 Tex. Crim. 105Rogers v. State (1912)
The opinion states the case.
65 Tex. Crim. 111Humphrey v. State (1912)
The opinion states the case.
65 Tex. Crim. 116Black v. State (1912)
The opinion states the case.
65 Tex. Crim. 121Brown v. State (1912)
The opinion states the case.
65 Tex. Crim. 125Wade v. State (1912)
The opinion states the case.
65 Tex. Crim. 131Wragg v. State (1912)
The opinion states the case.
65 Tex. Crim. 137Orner v. State (1912)
The opinion states the case.
65 Tex. Crim. 143Jordan v. State (1912)
1.—Passing Forged Instrument—Continuance—Want of Diligence. Where defendant relied on witness’ promise to attend court and had no processes issued, there was no diligence; besides, the witness proved to be dead when motion for new trial was made. St.—Same—Continuance—General Reputation. Where the State did not attack the general reputation for honesty of the defendant, there was no error in overruling an application for continuance on this ground. 3. —Same—Continuance—Declarations of Defendant. Where defendant admitted that he had signed the alleged forged instrument, there was no error in overruling a motion for continuance for absent testimony relating thereto; besides, the diligence was not sufficient. 4. —Same—Attorney and Client—Privileged Communications. Where, upon trial of passing a forged instrument, it appeared that the attorney of defendant got possession of the alleged forged note,' and was called upon as a witness by the State as to the whereabouts of same, and testified that his client had no connection with this transaction, the matter did not come within the scope of privileged communications between client and attorney. 5. —Same—Evidence—Alleged Forged Instrument. Where, upon trial of passing a forged instrument, the instrument introduced was the promissory note described in the indictment, there was no error. 6. —Same—Evidence—Condoning Crime. Upon trial of passing a forged instrument, there was no error in refusing to admit testimony that the alleged holder of the note, in consideration of payment of same, had agreed to mark the same settled, and turn it over to defendant, depriving the State of the evidence of the note, etc.
65 Tex. Crim. 146Lacoume v. State (1912)
1.—Assault to Murder—Charge of Court—Aggravated Assault. Where defendant was convicted of aggravated assault under an indictment of assault to murder, he could not complain of the court’s charge relating to assault to murder. 2. —Same—Means of Aggravation. When a person is charged with aggravated assault, the means of aggravation must be alleged, but when the indictment charges an assault to murder the same embraces aggravated assault in all its various phases. Following Davis v. State, 20 Texas Crim. App. 302, and other cases. 3. —Same—Simple Assault—Charge of Court. Where the evidence did not call for a charge on simple assault, there was nc error in the court’s failure to do so. 4. —Same—Evidence—General Reputation. While the general reputation of prosecuting witness as a violent and dangerous man could have been shown, there was no error in not permitting defendant to show that he assaulted other parties at various times; the State not having offered to prove prosecutor’s good reputation. Following Kemper v. State, 63 Texas Crim. Rep., 1. 5. —Same—Evidence—Acts of Third Parties. Where the evidence showed that defendant and others were acting together, there was no error in permitting the State to exhibit to the jury the pistol which witness testified he had been hit with by one of these parties. 6. —Same—Evidence—Expert Testimony—Hypothetical Questions. Where the witness was a regular practicing physician and was testifying as an expert upon a hypothetical question stated, there was no error to permit him to testify what would be the effect of a lick on prosecutor’s head by the instrument in evidence. 7. —Same—Evidence—Practice. Where the objectionable testimony was excluded and other testimony as to the arrest of defendant’s codefendants was admitted, there was no error. 8. —Same—Evidence—Other Offenses—Moral Turpitude. Theft from the person is a felony and it was permissible to show that defendant was arrested for such offense, and where testimony as to a misdemeanor was introduced without objection, there was no error. 9. —Same—Evidence—Other Offenses. Testimony of another and different offense on a different person at a different time and place would not have been admissible if objected to, and it was error to admit in evidence a subpoena for the party upon whom it was alleged defendant committed another and different assault, and to permit State’s counsel to comment thereon. 10. —Same—Evidence—Clothing. Where the nature and location of the wound was undisputed, it was not admissible to permit the clothing worn by the party, to be introduced for the purpose of showing loss of blood.
65 Tex. Crim. 150Oliver v. State (1911)
The opinion states the case.
65 Tex. Crim. 175Burns v. State (1912)
The opinion states the case.
65 Tex. Crim. 193Williams v. State (1912)
Tried below before the Hon. W. H. Pope. Appeal from a conviction of murder in the first degree; penalty, death. The opinion states the case.
65 Tex. Crim. 204Gray v. State (1912)
1. —Assault to Murder—Charge of Court—Aggravated Assault. Where, upon trial of assault with intent to murder, the evidence did not raise the issue of aggravated assault, there was no error in the court’s failure to charge thereon. 2. —Same—Surprise—Motion for New Trial—Newly Discovered Evidence. Where appellant complained in his motion for new trial that a new trial should have been granted because of surprise at the testimony of one of his witnesses and of newly discovered testimony, but the record showed that he did not claim surprise at the time said testimony was introduced, and did not show that the alleged newly discovered evidence was not known to him before and at. the time of trial, there was no error in overruling the motion. 3. —Same—Rule Stated—Statutes Construed. Under article 817, Code Criminal Procedure, the question of new trial is largely in the discretion of the court, and defendant must show due diligence in not discovering the alleged testimony, and that a different result will be reached, and that the alleged testimony is not simply of an impeaching character, etc. 4. —Same—Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence sustained the conviction, there was no error. [Rehearing denied March 6, 1912.—Reporter.]
65 Tex. Crim. 208Treadway v. State (1912)
The opinion states the case.
65 Tex. Crim. 251Kinney v. State (1912)
1. —Murder—Bills of Exception—Practice on Appeal—Article 723. Article 723, Code Criminal Procedure, provides that a judgment shall not be reversed unless the error in the charge was excepted to at the time of the trial, or is complained of in the motion for new trial, and where this was not done, the same can not be considered on appeal. 2. —Same—Amended Motion for New Trial—Practice on Appeal. Where the amended motion for a new trial brought the matter of the objections to the court’s charge properly up for review, this court will consider them, although the bills of exception thereto were not presented to the court; and the matter of filing the amended motion after two days had elapsed was a matter of discretion of the trial court. 3. —Same—Bills of Exception—Practice on Appeal. Where a bill of exceptions is refused by the trial court, it should not be contained in the record, and there being no bill of bystanders, there is nothing to review. 4. —Continuance—Want of Diligence. Where, in a second application for continuance, the diligence was contested, and overruled for want of diligence, there was no error. 5. —Same—Evidence—Declarations of Third Parties. Where, upon trial of murder, the facts indicated that defendant knew that his codefendant was going to ask for a gun, and the defendant took up the conversation of his codefendant with certain third parties with reference to the gun, and was close enough to hear what his codefendant said to said parties, there was no error in admitting their testimony with reference thereto. 6. —Same—Charge of Court—Principals. Where, upon trial of murder, the evidence showed that defendant and his codefendant .were acting together just before the homicide in getting the gun with which defendant shot deceased, etc., there was no error in the court’s charge on principals wherein he instructed the jury to disregard the testimony of third parties with said codefendant, unless they believed he and defendant were acting together. 7. —Same—Evidence—Res Gestae. Upon trial of murder, the declarations of deceased and a third party at the time of and just after the shooting by defendant of deceased, with reference to such shooting, was admissible as res gestae. 8. —Same—Evidence—Conversation. Where, upon trial of murder, the defendant had elicited portions of a conversation betixveen a State’s witness and the deceased, which occurred just before the homicide, there was no error in permitting the State, on,, cross-examination, to bring out the entire conversation. 9. —Same—Evidence—Declarations of Third Parties. Where' the statements of a third party were hearsay, with reference to delivering a pistol to deceased, there was no error in excluding them. 10. —Same—Evidence—Declarations of Defendant. Upon trial of murder, there was no error in excluding the declarations of defendant as to what he said to a number of people about going hunting, prior to the homicide. 11. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon. 12. —Same—Charge of Court—Murder in the Eirst Degree. Where defendant was convicted of murder in the second degree, objection to the court’s charge on murder in the first degree will not be considered on appeal. 13. —Same—Charge of Court—Self-Defense—Words and Phrases. Where, in the court’s charge on the law of self-defense, the sentence complained of by defendant did not appear, and said charge was a full and fair presentation of the issue of self-defense made by the evidence, there was no error. 14. —Same—Argument of Counsel. Where the court refused a bill of exceptions to the alleged argument of State’s counsel, the presumption is that no such language was used; there being no bystander’s bill. 15. —Same—Charge of Court—Provoking the Difficulty. Where, upon trial of murder, the court fairly submitted the issue of self-defense arising from the evidence, and also, submitted a charge on provoking the. difficulty, although the evidence hardly raised this latter issue, yet where the facts were such that the charge on provoking the difficulty could not have resulted in injury to the defendant, there was no reversible error. 16. —Same—Practice on Appeal—Rehearing—Statutes Construed. Where appellant presented a question for the first time in the Appellate Court, which was not raised by the motion for new trial or bill of exceptions, and even not in defendant’s first brief, but upon motion for rehearing, the same came too late to be considered. Article 723, Code Criminal Procedure. 17. —Same—Charge of Court—Provoking Difficulty. Where the court’s charge on provoking the difficulty could not have abridged defendant’s right of self-defense and defendant’s acts and declarations before and at the time of the homicide were such as to support the State’s theory of an assassination, although defendant claimed self-defense, a charge on provoking the difficulty, while scarcely raised by the evidence, did not present reversible error, where a full and complete charge on self-defense was submitted to the jury.
65 Tex. Crim. 266Grant v. State (1912)
The opinion states the case.
65 Tex. Crim. 271Davis v. State (1912)
The opinion states the case.
65 Tex. Crim. 275Huntley v. State (1912)
The opinion states the case.
65 Tex. Crim. 279Hitchings v. State (1912)
1. —Keeping Disorderly House—Vagrancy Act—Statutes Construed. The Vagrancy Act of 1909 does not repeal or supersede the disorderly house statute. Following Parshall v. State, 62 Texas Crim. Rep., 177. 2. —Same—Evidence—General Reputation. Upon trial of keeping a disorderly house, testimony as to the general reputation of the house is admissible. Following Jolifi v. State, 53 Texas Crim. Rep., 61, and other cases. 3. —Same—Charge of Court—Knowledge. Where, upon trial of keeping a disorderly house, there was evidence that the defendant had no knowledge that women of ill-fame were plying their vocation in her house or the house under her control, the court should have submitted defendant’s special charge on this issue.
65 Tex. Crim. 280Eads v. State (1912)
Tried below before the Hon. J. M. Pearson. Appeal from a conviction of aggravated assault; penalty, a fine of $500 and six months confinement in the county jail.
65 Tex. Crim. 282Drake v. State (1912)
1. —Murder—Continuance—Practice on Appeal. Where the cause is reversed and remanded on other grounds, the overruling of the motion for continuance need not be considered. 2. —Same—Evidence—Motive—Irrelevant Matter. Where, upon trial of murder, the State’s testimony, in support of its theory that defendant killed deceased to marry his widow, was not sufficient in any way to support -this theory, it was reversible error to admit testimony that defendant had so conducted himself towards his. former wife that she had brought suit for divorce, etc., and defendant did not contest, and was solicitious after the former wife obtained a divorce to know whether he could marry again, etc. 3. —Same—Evidence—Declarations of Defendant—Judgment in Civil Suit. While, upon trial of murder, it was proper to permit the State to show that the wife of deceased brought a suit for divorce against the deceased in which the defendant was a witness for plaintiff, and that when he heard that the court had denied a divorce, made certain declarations with reference thereto, it was reversible error to admit in evidence the judgment in that suit or any of the details of that trial. 4. —Same—Evidence—Cross-Examination—letters. Where the defendant introduced as a witness the wife of the deceased to show that there was no foundation to the theory of her future marriage to the defendant, the State had the right to cross-examine her upon this matter, but had no right to go into details about her and her deceased husband’s life and marriage, or the letters that had been written by her to her husband after the separation, with which the defendant had no connection. 5. —Same—Evidence—Dying Declarations. Where the proper predicate had been laid, there was no error in introducing in evidence the dying declarations of deceased. 6. —Same—Evidence—Statement of Deceased. Upon trial of murder, it was error to admit in evidence the declarations of the deceased after he was shot to the effect to tell his poor mother that he was going to die like a man, and that a coward shot him; as this testimony would have been inadmissible if deceased had been living. 7. —Same—Jury and Jury law. Where the record showed that the jurors were qualified to try the defendant, there was no error. 8. —Same—Evidence—Declarations of Defendant. Upon trial of murder, there was no error in admitting in evidence the fact that defendant, on the day of the homicide, asked someone if he would go on his bond if he got into trouble. 9. —Same—Evidence—Declarations of the Defendant. Upon trial of murder, there was no error in admitting in evidence the declarations of the defendant made some time before the homicide with reference to the deceased. 10. —Same—Conduct of Trial Judge—Practice—Statutes Construed. See opinion cautioning trial judges about engaging in the interrogation of witnesses during the trial; such practice may lead to the reversal of cases, as it is calculated to convey to the jury the opinion of the trial judge of the case. Article 767, Code Criminal Procedure. 11. —Same—Evidence—Bill of Exceptions. Where no bills of exception are reserved, the question of the admission or rejection of testimony can not be reviewed on appeal. 12. —Same—Charge of Court—Charge as a Whole. Where the court’s charge on self-defense and manslaughter are not susceptible of the criticisms against them, when considered as a whole, there was no error.
65 Tex. Crim. 290Mayhew v. State (1912)
1. —Murder—Charge of Court—Self-Defense—Force. Where the State’s theory was that the homicide was murder in the second degree, and that from the defendant’s standpoint, self-defense, defense of his son, and self-defense viewed from the .standpoint of communicated threats, it was reversible error to limit defendant’s right to act in perfect self-defense of himself or son by charging the jury that the defendant could use no more force than was necessary. 2. —Same—Rule Stated—Perfect Self-Defense—Defendant’s Standpoint. Where the right of perfect self-defense is involved, and is the issue forming the predicate of the charge, then the accused has the right to use all force necessary without any limitation as to the quantity of such force; and this doctrine applies where the party is defending another, and this must be viewed from defendant’s standpoint, and not that of the attitude of the party to whose defense he goes; as whatever he may do for himself, he may do for another. Following Johnson v. State, 5 Texas Grim. App., 43, and other cases. 3. —Same—Charge of Court—Defense of Another. Where, upon trial of murder, the "evidence showed that defendant’s son provoked the difficulty with the deceased, but that the defendant was not present and not informed of the circumstances of the fight, and that he came to the rescue of his son whom deceased held down on the ground, while another party struck at defendant with a rock, the court’s charge, which limited defendant’s right to defend his son to the same right that the son had to defend himself, was reversible error, although correct upon another state of facts. Following Guffee v. State, 8 Texas Grim. App., 187, and other cases. 4. —Same—Rule Stated—Defense of Another—Intent. A party acting in defense of another is only bound to answer for his own intent, and the intent of his codefendant, unless he adopts the same, does not bind him. 5. —Same—Charge of Court—Threats—Defendant’s Belief. Where, upon trial of murder, the court’s charge required the jury that the threats by deceased against the defendant and communicated to the latter must be actually made, and not that if defendant so believed from «what he had heard, there was reversible error. Following Swain v. State, 48 Texas Crim. Rep., 98, and other cases. . 6. —Same—Charge of Court—Self-Defense—Other Assailants. Where, upon trial of murder, the evidence raised. the issue of more than one assailant, it was error in the court’s .charge to require that these assailants must act together in order to give the defendant the right of self-defense. 7.—Same—Charge of Court—Formed Design—Provocation. Where, upon trial of murder, there was evidence of a former difficulty and that the same had passed, and that the killing occurred upon a new provocation in which defendant came to the rescue of his son, the court should have submitted the defendant’s charge that if the killing occurred, not on a previous formed design or provocation, but on a subsequent one, that the jury should attribute the same to the latter. Following McCoy v. State, 25 Texas, 33.
65 Tex. Crim. 297Moray v. State (1912)
1. —Burglary—Allusion to Defendant’s Failure to Testify. Where it is apparent from the record that the court below heard evidence on the allegation in defendant’s motion for new trial that the jury alluded to his failure to testify, it must be presumed, in the absence of a statement of facts, that the court properly overruled the motion. 2. —Same—Evidence—Identification. Where the owner of the alleged stolen property positively identified the same, there was no error in admitting testimony that she received it from one who had received it from defendant. 3. —Same—Evidence—Explanation. Upon trial of burglary, where the defendant showed that he gave a different explanation as to where he got the alleged stolen ring than he did on a former trial, there was no error to permit the State to show that he had made contradictory statements on a former trial. 4. —Same—Evidence. Where the owner of the alleged stolen property positively identified the same, there was no error in excluding testimony that another person would not be willing to testify to such identification. 5. —Same—Argument of Counsel. Where, upon trial of burglary, the remarks of State’s counsel in opening his argument were not improper, but rather to be commended, there was no error. 6. —Same—Charge of Court—Recent Possession. Where defendant was found in possession of the alleged stolen property and the court properly charged on circumstantial evidence, etc., there was no error to refuse defendant’s requested charge which was not the law of the case. 7. —Same—Possession of Stolen Property—Charge of Court. When a person is found in possession of stolen property, no matter how long after the theft, that fact is admissible in evidence with other circumstances, and his explanation of his possession, if any is given, should be submitted to the jury, and where the court’s charge, on trial of burglary, did this, there was no error. 8. —Same—Charge of Court. Where the requested charges were either covered in the main charge or did not present the law applicable to the case, there was no error.
65 Tex. Crim. 300Doyle v. State (1912)
Leaving out formal averments, the information alleged that the defendant in said State and county on the 10th day of March, A. D. 1911, not being a practicing physician or surgeon, and not alone for the purpose of extracting teeth, did unlawfully engage in the practice of dentistry for fee and reward, without first having complied with the law and obtained a license from a board of examiners duly appointed and authorized by the law to issue such license to practice dentistry…
65 Tex. Crim. 302Miller v. State (1912)
From the brief of counsel the following statement is found to be substantially correct: That the testimony showed that the prosecutor (defendant’s divorced husband), who testified against defendant, was not injured; that he did not occupy the house exclusively where the poison, if any, was spread; that the house where the child died was occupied by the son of prosecutor; that it had been so occupied for nearly six months; that three or four days before the death of the…
65 Tex. Crim. 307Ex Parte Napoleon (1912)
From Dallas County. Original habeas corpus proceedings asking release from commitment under contempt proceedings for refusing to answer questions before District Court and grand jury. The opinion states the case.
65 Tex. Crim. 311Perkins v. State (1912)
The opinion states the case.
65 Tex. Crim. 319McMillan v. State (1912)
1. —Murder—Continuance—Practice on Appeal. Where the judgment is reversed and the cause remanded on other grounds, the refusal of the application for continuance need not be considered. 2. —Same—Argument of Counsel—Requested Charge. Where the court had overruled defendant’s application for a continuance for an absent witness, the State had no right to offer the stenographic report of the testimony of said witness without first admitting that it was true, and the argument of State’s counsel with reference thereto, and the refusal of the court to submit a requested charge withdrawing said remarks was reversible error. 3. —Same—Evidence—Other Transactions. Where, upon trial of murder, it was a question in the case as to whether defendant or the deceased began the difficulty which grew out of a certain election, the court should have admitted testimony to the effect that a week or ten days prior to the difficulty between them, the deceased remarked with reference 'to the election that matters were getting warm and that a good many were getting “raw,” naming defendant as one of them, and that they would likely be trouble over the matter; the evidence showing that the defendant and deceased were on opposite sides of the question involved in said election. 4. —Same—Evidence—Acts and Declarations of Third Parties. Where, upon trial of murder, the State could show that an altercation occurred between the defendant and a third party just prior to the homicide, to show the mental status of the defendant with reference to the election out of which the homicide arose, yet details of said prior altercation and the words used between defendant and said third party were not admissible.
65 Tex. Crim. 323Hightower v. State (1912)
The opinion states the case.
65 Tex. Crim. 331Strapp v. State (1912)
1. —Seduction—Evidence—Corroboration—Birth of Child. Upon trial of seduction, there was no error in permitting the prosecutrix to testify that she had a child by defendant, giving the date of its birth, which was within the time of gestation from the date of the alleged intercourse with defendant; this was a corroborating circumstance of her testimony in chief. 2. —Same—Conduct of Judge. Where it was not claimed that the conduct of the trial judge, by questions developing the testimony, could have influenced the jury, there was no error. 3. —Same—Evidence—Cross-Examination—Rebuttal. Where, upon trial of seduction, the defendant on cross-examination, testified that he remained in Oklahoma a while before the alleged offense was committed, during which time he did not write the prosecutrix, and when, as prosecutrix claimed, they were engaged to be married, there was no error to permit the State to show that defendant had stated to prosecutrix the reason he could not write to her during his absence was because he had been seen with a pistol and that he had to leave on this account, the court properly limiting said testimony. 4. —Same—Evidence—Bill of Exceptions. Where, upon trial of seduction, the State asked the prosecutrix to state what preparations she had made to get married with defendant, etc., which she answered that she prepared her clothes, etc., but the bill of exceptions was defective, the same could not be considered on appeal. 5. —Same—Charge of Court—Charge as a Whole. Where, upon trial of seduction, the charge of the court, when read as a whole, together with requested instructions, sufficiently applied the law to the facts, there was no error in refusing . other special charges upon the same matter. 6. —Same—Newly Discovered Evidence—Attorney and Client—Want of Diligence. Where there was a want of diligence in not discovering the alleged newly discovered evidence, and that the supporting affidavits were made before defendant’s attorney, and the alleged evidence did not materially affect the question as to the period of gestation, there was no error in overruling the motion. 7. —Same—Newly Discovered Evidence—Impeaching Testimony. New trials are granted only on account of impeaching testimony in those instances where the testimony would not only temí to impeach, but also support the testimony of the defendant. 8. —Same—Sufficiency of. the Evidence—Corroboration. Where, upon trial of seduction, the testimony of prosecutrix was sufficiently corroborated, the conviction was sustained. [Rehearing denied March 13, 1912.—Reporter.]
65 Tex. Crim. 336Black v. State (1912)
The opinion states the case.
65 Tex. Crim. 349Nesbitt v. State (1912)
1. —Embezzlement—Indictment—Statutes Construed. Where, upon trial of embezzlement, under article 940, Penal Code, the indictment followed approved precedent, the same was sufficient. 2. —Same—Value—Evidence—Check. Upon trial of embezzlement, under article 940, Penal Code, there was no error in admitting testimony on the question of the value of the property alleged to have been embezzled, and that the alleged cheek was drawn upon money actually in bank, introducing said check in evidence. 3. —Same—Evidence—Conversion. Where the indictment under article 940, Penal Code, charged the fraudulent embezzlement and conversion of a certain check, there was no error in introducing testimony that the defendant deposited said check in the bank, receiving credit on his account. 4. —Same—Evidence—Other Transactions. Upon trial of embezzlement, under article 940, Penal Code, it was reversible error to admit evidence as to other transactions not connected with the case, sucii as the amount of defendant’s general indebtedness and his failure to pay it. 5. —Same—Evidence—Intent—Other Transactions. Upon trial of embezzlement, under article 940, Penal Code, evidence which tended to show whether defendant had authority or believed he had authority to use the alleged check, was admissible, but testimony of extraneous transactions, which would only show his intention to repay the amount alleged to have been embezzled, or his financial ability, were inadmissible. 6. —Same—Impeachment—General Reputation. Where defendant had introduced evidence to impeach the State’s witness, there was no error to admit testimony as to the latter’s general reputation for truth and veracity.
65 Tex. Crim. 353Focke v. State (1912)
1. —Pure Food Law—Statement of Facts—Misdemeanor. In misdemeanor cases, tried in the County Court, the court has no authority to grant more than twenty days after the day of adjournment in which to file a statement of facts and bills of exception. Following Mueller v. State, 61 Texas Crim. Rep., 544, and other cases. 2. —Same-7-Presumption—Practice on Appeal. In the absence of a statement of facts, this court presumes that the trial court charged the law applicable to the facts in evidence. Following Wright v. State, 37 Texas Crim. Rep., 146, and other cases. 3.—Same—Constitutional law—Caption. Where the caption of the pure food law, Act Thirty-First Legislature, p. 116, contained in its title a clause prescribing penalties for the violation of the Act, it was sufficient; and it is not necessary to specifically refer to and describe the offense. Following Brown v. State, 57 Texas Grim. Rep., 269, and other cases.
65 Tex. Crim. 355Scales v. State (1912)
1. —Bobbery—Indictment—Statutes Construed. Under article 857, Penal Code, the indictment must negative that the person injured is guilty of an offense, and must allege the constituent elements of the same. 2. —Same—Case Stated. Where defendant was indicted for robbery under article 857, Penal Code, and the. indictment alleged that the illegal act was adultery, and did not negative the fact that the said alleged injured parties were guilty of adultery, and did not allege the constituent elements of that offense, the same was bad op. motion to quash.
65 Tex. Crim. 358Betts v. State (1912)
The opinion states the case.
65 Tex. Crim. 362McGinsey v. State (1912)
1. —Robbery—Accomplice—Bill of Exceptions. The testimony of an accomplice is admissible, besides there was no bill of exceptions. 2. —Same—Newly Discovered Evidence—Affidavit. Where the affidavit of the alleged absent witness, who was confined in the county jail at the time, was not attached to the motion for new trial setting up newly discovered evidence, and only the affidavit of defendant taken before his counsel was attached thereto, the same was insufficient. Following Maples v. State, 60 Texas Grim. Rep., 169; besides, said' testimony was only of an impeaching character. 3. —Same—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence was sufficient to sustain a conviction, there was no error. 4. —Same—Evidence—Adjournment—Practice on Appeal. Evidence discovered since the trial of the case and the adjournment of .the trial court for the term, can not be considered on appeal.
65 Tex. Crim. 365Anderson v. State (1912)
1. —Murder—Charge of Court—Relative Strength of Parties—Character of Deceased. Where, upon trial of murder, the evidence showed the parties to have been strangers to each other, and did not show anything with reference to their relative strength, or that defendant had any knowledge of the disposition o.r character of deceased, it was reversible error to submit this in the court’s charge as an issue in the case. Following Hickey v. State, 45 Texas Grim. Rep., 297, and other cases. 2. —Same—Evidence—Cocaine Fiend. - Where, upon trial of murder, the defendant offered testimony to show that the main State witness was a cocaine fiend to such an extent that it would impair her credibility as a witness, it was reversible error not to admit the same in evidence. Following Edwards v. State, 38 Texas Grim. Rep., 386, and other cases. 3. —Same—Charge of Court—Murder in the Second Degree. A charge of the court, upon the issue of murder in the second degree, which omitted malice, and authorized the jury to find defendant guilty of that degree of murder if he killed deceased wptli a deadly weapon, was error. Fol-. lowing Clark v. State, 51 Texas Grim. Rep., 519, and other cases.
65 Tex. Crim. 368Foote v. State (1912)
The opinion states the case.
65 Tex. Crim. 374Dickey v. State (1912)
1. —Embezzlement—Public Funds—Official Duty—Conversion—Statutes Construed. Under article 103, White’s Penal Code, the officers therein mentioned can only be charged with the duty of handling property of the city which comes into their possession by virtue of their office, and where such officer is prosecuted for the fraudulent conversion of such funds to his own use, the indictment must show that the funds came into his possession by virtue of his office. Following Hartnett v. State, 56 Texas Grim. Rep., 281, and other cases. 2. —Same—Case Stated—City Warrant—City Charter and Ordinances. Where the defendant was charged as secretary of an incorporated city with the embezzlement of the city warrant, and was not, by the charter, ordinance, or order of the city council charged'with the duty of receiving, paying out or handling the city funds, and that such was not the scope of his official duty he could not be held guilty under a charge of embezzlement, misapplication or conversion of such property. 3. —Same—Conversion—Illegal Credit—Adverse Holding. Where defendant was prosecuted for embezzling a city warrant and was not charged with illegally crediting this warrant to the wrong fund, or with having used funds properly belonging to the other fund, the fact that he deposited said warrant to the city’s credit to cover up a pre-existing shortage of some other fund would not sustain the prosecution; besides, a conversion under the charge of embezzlement must show,that the owner was deprived of the property alleged to have been embezzled by an adverse holding. 4. —Same—Conversion—Embezzlement—Official Duty. Where defendant was charged, that as secretary of an incorporated city, he fraudulently misapplied and converted a certain city warrant, it was necessary to prove, to sustain a conviction, that defendant was charged with the official duty of receiving said warrant and that it was this particular warrant that was misapplied or converted; and he could not be convicted under such indictment because he had credited said warrant to the wrong fund to cover up some prior defalcation. 5. —Same—Insufficiency of the Evidence. Where defendant was indicted as city secretary for the fraudulent conversion of a city warrant, and the evidence showed that the alleged warrant was void; that it was not defendant’s duty to receive the city funds and pay them out; that the city received credit for the full face value of the warrant, the conviction could not be sustained, although the warrant was credited to the wrong fund. G.—Same—Indictment—Seal—City Council. Where, upon trial of embezzlement of a city warrant by defendant as secretary of a city, the indictment did not allege, as required under the charter, that the said warrant was under seal and that it was drawn by order of the city council, the indictment was defective. 7.—Same—Evidence—Other Transactions—Hearsay. Where defendant was indicted for the fraudulent misapplication of a city warrant, testimony that defendant had diverted other funds or money from different funds belonging to the city could not justify a conviction under the indictment, and is, therefore, inadmissible; besides, much of said testimony was hearsay and inadmissible.
65 Tex. Crim. 384MacLin v. State (1912)
The opinion states the case.
65 Tex. Crim. 402Clay v. State (1912)
The opinion states the case.
65 Tex. Crim. 405Ex Parte Farley (1912)
The opinion states the case.
65 Tex. Crim. 408Hinton v. State (1912)
1. —Assault to Murder—Recognizance—Practice on Appeal. Where the appeal is dismissed for want of a sufficient recognizance in describing the offense of which defendant was convicted as aggravated assault, but the appellant thereafter filed a sufficient recognizance in accordance with the rules of this court, the same was 'reinstated. Following Burton v. State, 48 Texas Grim. Rep., 544, 90 S. W. Rep., 498. 2. —Same—Continuance—Practice on Appeal. Where no bill of exceptions was reserved to the action of the court in overruling a motion for continuance, there is nothing to review on appeal. 3. —Same—Charge of Court—Self-Defense—Weight of Evidence. Where, upon trial of assault to murder, the court, in his charge on self-defense, referred to the attack by the injured party upon the defendant as a supposed attack, the same was on the weight of the evidence and reversible error. 4. —Same—Argument of Counsel—Personal Belief of Counsel. An argument of State’s counsel to the jury to the effect that if he did not believe the man was guilty in his heart, he would not prosecute him and that he would tender his resignation if he did not believe defendant was guilty, was highly improper and might present reversible error. 5. —Same—Evidence—Defendant’s Character. Upon trial of assault to murder, it was improper for the State’s attorney to ask a witness what sort of character the' defendant had and whether he was a peaceable and law abiding citizen, the defendant not having put his character in evidence. 6. —Same—Evidence—Other Transactions—Bill of Exceptions. Upon trial of assault to murder, where, to the objection to testimony as to another difficulty having no connection with the case on trial, the court approved the bill disputing its recitals, but qualifies the same by stating that this testimony was introduced, the same was contradictory and did not qualify or explain the bill; besides, the testimony was not admissible, unless it showed malice, etc.
65 Tex. Crim. 412Parker v. State (1912)
1. —Theft of Cattle—Statement of Facts—Diligence. Where counsel for the defendant used due diligence in preparing and filing a statement of facts, and the State’s counsel declined to agree thereto, which failure of agreement was certified thereon by State’s counsel and that of the defendant to the trial judge, and duly presented to him, it was the duty of such judge to prepare and file a statement of facts in due time, and a failure to do so is reversible error. 2. —Same—Statement of Facts—Transcript. By the Act of the Thirty-First Legislature, p. 264, a statement of facts which was filed in the trial court after the transcript was filed in the Appellate Court, can not be considered, and where such delay was caused by no fault or negligence on the part of appellant or his counsel, the cause must be reversed and remanded. Distinguishing Tankersley v. State, 51 Texas Grim. Rep., 224, and other cases.
65 Tex. Crim. 415Edwards v. State (1912)
Theft of Cattle—Statement of Facts—Diligence. Where counsel for defendant prepared a statement of facts in due time and presented same to the district attorney who declined to approve it, and thereupon in due time presented same with certificate of disagreement to the trial judge with the request to make out a statement of facts, and said trial judge did not prepare and file a statement of facts within time and not until after the transcript was filed in the Appellate Court, the cause must be reversed and remanded.
65 Tex. Crim. 416Johnson v. State (1912)
The opinion states the case.
65 Tex. Crim. 418Campbell v. State (1912)
1. —Manslaughter—Statement of Facts—Filing Back. Where, upon appeal from a conviction of manslaughter, it appeared from the record that the statement of facts was not agreed to and approved until more than thirty days after adjournment, but was filed back so as to come within the time of thirty days, the same could not be considered. 2. —Same—Approval of Judge— Statement of Facts. Where the alleged statement of facts had not been approved by the regular judge who tried the case, but the same was approved by a special judge in vacation, the same could not be considered on appeal. 3. —Same—Practice on Appeal—Presumption. In the absence of a statement of facts, the charge of the court must be presumed to be applicable to any state of facts that could be proved under the indictment. 4. —Same—Manslaughter—Murder—Evidence. Where defendant was indicted for manslaughter and the evidence showed that it would have supported a verdict for murder, the qonvietion for manslaughter is, nevertheless, authorized. 5. —Same—Newly Discovered Evidence. In the absence of a statement of facts alleged newly discovered evidence can not be considered on appeal.
65 Tex. Crim. 419Graves v. State (1912)
The opinion states the case.
65 Tex. Crim. 423Cooper v. State (1912)
1. —Burglary—Statement of Facts. In the absence of a statement of facts, the question of the insufficiency of the evidence can not be considered on appeal. 2. —Same—Jury and Jury law—Practice—Challenge. Where, upon conviction of burglary, the defendant claimed that he had challenged peremptorily one of the jurors who sat upon his case, but did not raise this objection until the return of the verdict, and it appeared from the record that while defendant’s counsel erased the name of said juror from the list, that he knew him well, and it must be presumed that he and his client were not absent at the trial, there was no error in overruling a motion for new trial on this ground.
65 Tex. Crim. 425Baggett v. State (1912)
1. —Theft of Hog—Accomplice—Charge of Court. Where, upon trial of a theft of a hog, the court charged the jury that they must believe the testimony of the accomplice to be true and that it must show or tend to show that the defendant is guilty as charged, the same was reversible error. Following Grant v. State, 60 Texas Grim. Rep., 358, and other cases. 2. —Same—Evidence—Codefendant—Acquittal. Upon trial of theft of a hog, where defendant, in his motion for new trial, showed that his codefendant had been acquitted, and that his testimony was material to his defense, the court should have granted a new trial. 3. —Same—Evidence—Confession—Warning—Fruits of Crime. Where, upon trial of theft of a hog, the voluntary written confession failed to show that the same was made by the defendant to the person who warned him, and that said confession did not lead to the finding of the fruits of the crime the same was inadmissible in evidence. Following Crowder v. State, 28 Texas Grim. App., 51, and other cases. 4. —Same—Exculpatory Statements. Where, upon trial of theft of a hog, the alleged statement of the defendant in evidence was exculpatory in so far as connecting the defendant with the alleged theft, and the same was introduced by the State, it devolved upon the State to show that the same was false. 5.—Same—Impeaching own Witness. Where the testimony of the State’s witness was in no way damaging to the State, the State could not contradict said witness, especially on an immaterial question.
65 Tex. Crim. 429Davis v. State (1912)
1. —Theft of Hog—Charge of Court. Where the indictment contained two counts, one alleging the owner and the other the owner was unknown, there was no error in the court’s charge submitting the count as to the unknown owner, although the testimony of the grand jurors that the owner was unknown should be stronger. 2. —Same—Continuance—Materiality of Testimony. Where, upon trial of theft of a hog, the defendant showed on his application for continuance, that the absent witness was sick and unable to attend court, and supported this by the certificate of a reputable physician and it was shown that her testimony was material and probably true, the application should have been granted.
65 Tex. Crim. 431Curl v. State (1912)
The opinion states the case.
65 Tex. Crim. 437Williams v. State (1912)
1. —Murder—Charge of Court—Insulting Conduct to Female Relative—Adequate Cause. Where, upon trial of murder, the evidence showed that a female friend of defendant, whom deceased was alleged to have insulted, was sufficiently under defendant’s legal protection at the time of the homicide to constitute her within the purview of the statute a female relative, the court should have submitted this as adequate cause in his charge on manslaughter. 2. —Same—Charge of Court—Self-Defense—Presumption—Means Used. Where, upon trial of murder, the evidence showed that the deceased threw a rock at defendant and was advancing on him with his knife, the court should have charged on the presumption, under article 676, Penal Code, that the deceased intended to use these instruments to kill defendant.
65 Tex. Crim. 440Ex Parte Landry (1912)
From Harris County. Original habeas corpus proceeding, asking release from custody under commitment of contempt proceeding, fining defendant for constructive contempt for interfering with a witness in a case then pending; penalty, a fine of $100 and three days confinement in the county jail. The opinion states the case.
65 Tex. Crim. 448Myers v. State (1912)
1.—Burglary—Jury and Jury Law—Separation of Jury. Where, upon trial of burglary, it appeared from the record on appeal that the parties had accepted four jurymen who had not yet been sworn to try the case and were thereafter allowed to separate, pending the summons of other jurors to complete the panel, and there was nothing improper shown by such separation, there was no reversible error, although it is the better practice not to permit such separation. Following Bailey v. State, 26 Texas Grim. App., 706. Article 725, Code Criminal Procedure. 2. —Same—Evidence—leading Questions. Where some of the questions were not leading and others, as qualified by the court; presented no injury, there was no error. 3. —Same—Evidence—Telephone Message. Where, in a case of circumstantial evidence, upon trial of burglary, it was shown that the defendant was seen in company with another party who was in possession of and concealing the alleged stolen property, there was no error in admitting testimony that the witness received a telephone message to come to a certain place to buy the alleged property and to call up the party who had possession thereof. 4. —Same—Charge of Court—Recent Possession—Explanation. Where, upon trial of burglary, there was no evidence that defendant offered an explanation at the time of his arrest as to property recently stolen, there was no error in the court’s failure to charge thereon. 5. —Same—Alibi—Charge of Court. Where no special charge was presented on the question of alibi, and the evidence only slightly raised this issue, there was no error in the court’s failure to charge thereon. Following Jones v. State, 53 Texas Grim. Rep., 138. 6. —Same—Verdict—Practice. Where, upon appeal from a conviction of burglary, appellant complained that the indictment, when delivered to the jury, had written thereon the verdict of a previous jury, but the record disclosed that the defendant’s rights were in no way injured, there was no error. 7. —Same—Charge of Court—Circumstantial Evidence—Principals. Where the court’s charge on circumstantial evidence and principals was correct, there was no error. [Rehearing denied March 13, 1912.—Reporter.]
65 Tex. Crim. 453Moore v. State (1912)
The opinion states the case.
65 Tex. Crim. 464Kincaid v. State (1912)
1. —Murder—Charge of Court—Murder in the Second Degree. Where, upon trial of murder, the. court’s charge on murder in the second degree authorized the jury to convict defendant of that degree whether he killed deceased upon malice or under adequate cause or in self-defense, the same was reversible error. 2. —Same—Charge of Court—Going Armed—Demanding Explanation. Where, upon trial of murder, there was evidence of insulting conduct by deceased towards defendant’s wife, a charge which instructed the jury that if defendant went in search of deceased to demand an apology for said insult, he would be guilty of murder if he shot deceased on account thereof without demanding an apology, was reversible error. 3. —Same—Charge of Court—Provoking Difficulty—Self-Defense. A charge of the court which made the mere seeking by defendant of deceased to demand an apology, being armed with a pistol, thereby bringing on the difficulty, a forfeiting of the right of self-defense, without requiring that by words or acts he did provoke the difficulty, is reversible error. 4. —Same—Charge of Court—Provocation. Where, upon trial of murder, the evidence showed that the defendant was informed by his wife shortly before the homicide that deceased had insulted her, whereupon, defendant said that he would go and see him about it, and as he approached deceased, the latter drew his pistol on defendant who then shot and killed him, a charge of the court which confined the provocation to the time of the commission of the offense, and did not instruct the jury as to a first meeting of the parties, was reversible error. 5. —Same—Rule Stated. With reference to the insulting conduct towards a female relative, it is not necessary that it occur at the time of the killing; the legal status of the slayer is the same whether it occurs at the time of the killing or on the first meeting of the slayer with the deceased after being informed of such insulting conduct. 6. —Same—Evidence—Knowledge of Defendant. Before testimony of matters occurring in the absence df the defendant can be introduced in evidence, it must be in some way shown that he had knowledge thereof.
65 Tex. Crim. 469Taylor v. State (1912)
1. —Exposing Person—Public Place—Indictment. Where, upon trial of wilfully exposing the person in a public place, the indictment followed the statute, the same was sufficient. 2. —Same—Insufficiency of the Evidence. Where, upon trial of wilfully exposing one’s person in a public place, there was no evidence that the alleged livery stable was a public place under the statute, or that people were assembled or commonly resorted there for purposes of business, etc., and that defendant was simply bathing himself and did not expose his person outside of said stable, the conviction could not be sustained. 3. —Same—Charge of Court. Where, in a misdemeanor trial, defendant’s requested charges were applicable to the facts, they should "have been submitted. 4. —Same—Livery Stable—Public Peace. A livery stable is not per se a public place, but the facts must show that it was used as such. Metzer v. State, 31 Texas Grim. Rep., 11. 5. —Same—Case Stated. Where, upon trial of wilfully exposing one’s person, the evidence showed that what defendant did was brought about by the frolicsome acts of persons who went to the alleged livery stable to turn the water hose on the defendant, who was asleep, who thereupon disrobed himself and took a bath in said stable, and attempted to retaliate on his friends, there was no violation of law.
65 Tex. Crim. 474Brewster v. State (1912)
Local Option—Charge of Court—Agency. Where, upon trial of a violation of the local option law, there was evidence that the defendant acted for the purchaser in procuring the whisky, the court should have submitted this issue; and it was reversible error to instruct the jury that if defendant sold the whisky to the purchaser or was acting as the agent of some other person, to convict him.
65 Tex. Crim. 475Toliver v. State (1912)
Theft—Statement of Pacts. Where the statement of facts and bills of exception were not filed within time, they must he stricken out on motion of the State. Following Mosher v. State, 62 Texas Crim. Rep., 42, and other cases.
65 Tex. Crim. 476Garza v. State (1912)
The State’s testimony shows that the defendant bantered prosecutor for a fight, which the latter refused, when defendant took hold of him and pulled him back; that after a scuffle, prosecutor got loose and ran, and defendant ran after him, when prosecutor fell and defendant ran up and cut prosecutor several times with a knife while the latter was down, which inflicted wounds that confined him to his bed for ten days or two weeks; that the knife was such that it could have…
65 Tex. Crim. 479Ellias v. State (1912)
Carrying Pistol—Charge of Court—Imminent Danger. Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant carried the pistol from his residence to his store and while on the way believed his life was threatened and drew his pistol, the court should have submitted a requested charge on the question of imminent and threatening danger.
65 Tex. Crim. 480Ellis v. State (1912)
The opinion states the case.
65 Tex. Crim. 482Cowart v. State (1912)
The opinion states the case.
65 Tex. Crim. 484Bishop v. State (1912)
The State’s testimony showed that defendant came to see prosecutrix often, living close to where she lived, making love to her and trying to kiss her, and that she associated with him like young people generally do; that they went to church together, etc., and finally became engaged to marry; that he gave her an engagement ring, and that they became more intimate thereafter; that there was a slight disagreement between them, but that they made up afterwards, and that he told…
65 Tex. Crim. 488George v. State (1912)
The opinion states the case.
65 Tex. Crim. 489Shelton v. State (1912)
The opinion states the case.
65 Tex. Crim. 490Lattimore v. State (1912)
1. —Carrying Pistol—Civil Officer—Rural Mail Carrier. A rural mail carrier is not a civil officer as that term is defined under' article 476, Penal Code, but is a mere employee in the postal department of the United States, and, therefore, not authorized to carry on or about his person, a pistol. 2. —Same—Postal Rules—Evidence. Where, upon trial of unlawfully carrying a pistol, the defendant claimed that under the rules promulgated by the Fourth Assistant Postmaster General for the guidance of rural mail carriers constituted such carrier a civil officer, but no such evidence was introduced on the trial, the same could not be considered on appeal; besides, he was not such civil officer as is contemplated in article 476, Penal Code. 3. —Same—Civil Officer—Ejusdem Generis—Statutes Construed. The doctrine of ejusdem generis particularly applies to article 476, Penal Code, exempting revenue or other civil officers from prosecution under article 475, and said words do not include a civil officer or other civil officer of the same kind or character, as that would include every employee of the government. Following Ex parte Muckenfuss v. State, 52 Texas Crim Rep., 467, and other cases. 4. —Same—Place of Business. Where, upon trial of unlawfully carrying a pistol, the defendant claimed that be carried the pistol while engaged in the carrying and distribution of the United States’ mail as a rural mail carrier in a vehicle used by him, and that he was, therefore, at his own premises and place of business, such defense was untenable. 5. —Same—Place of Business—Public Roads—Vehicle. The public roads of the State, or the buggy in which a man rides driving over them, can not ho considered in law his premises or place of business, and such a contention by defendant, who was accused of unlawfully carrying a pistol, and claimed as a defense that he was on his own premises while in his vehicle as a rural mail carrier delivering mail, is untenable. Following Baird v. State, 34 Texas, 600, and other cases.
65 Tex. Crim. 495Slain v. State (1912)
1. —Theft of Horse—Continuance—Depositions—Want of Diligence. Where, upon trial of theft of a horse, there was a total lack of diligence to take the depositions of the absent witnesses of the defendant who resided in another State, there was no error in overruling a motion for continuance; besides, the absent testimony was not probably true. 2. —Same—Circumstantial Evidence—Assumed Name. Where, upon trial of theft of a horse, the testimony was circumstantial, • but showed that defendant and others were always seen together and were finally found in possession of the alleged stolen horse, there was no error in showing that one of the parties with whom defendant acted went under an assumed name at a certain time and place, and to submit a charge on the law of principals, as it was immaterial which one of the parties actually committed the act of taking.
65 Tex. Crim. 497Mills v. State (1912)
1. —Forgery—V arianee. Where, upon trial of forgery,' the instrument introduced in evidence did not correspond with that set out in the indictment, the variance was fatal. 2. —Same—Misconduct of Jury. Upon trial of forgery, it was improper for the jury to discuss the failure of defendant to testify; however, there being no affidavit attached to the motion for new trial, this presents no reversible error. 3. —Same—Evidence. 'See opinion for evidence which is not satisfactory that defendant forged the alleged instrument.
65 Tex. Crim. 499Moore v. State (1912)
The opinion states the case.
65 Tex. Crim. 500Griego v. State (1912)
1. —Burglary—Statement of Facts—Filing. Where thirty days were allowed for the filing of a statement of facts after adjournment of the District Court, and the same was not filed within that time, and no extension was given, the same was not filed within time; however, when considered, the evidence is sufficient to sustain the conviction. 2. —Same—Charge of Court—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence, although circumstantial, sustained the conviction, there was no error in the court’s refusal to instruct the jury to find defendant not guilty. 3. —Same—Evidence—Bill of Exceptions. In the absence of a bill of exceptions in admitting a certain letter of defendant in evidence, the same can not be considered on appeal. 4. —Same—Possession—Burglary. Where, upon trial of burglary, the evidence showed that, defendant was found in possession of the alleged stolen property, the morning after the burglary, there was no error in the court’s failure to instruct a verdict of not guilty on the ground that defendant was not found in possession of the alleged stolen property.
65 Tex. Crim. 501Dowling v. State (1912)
The opinion states the case.
65 Tex. Crim. 504Moray v. State (1912)
1. —Burglary—Private Residence. Where, upon trial of burglary, the evidence sustained the conviction, there was no reversible error. 2. —Same—Charge of Court—Circumstantial Evidence. Where, upon trial of burglary, the evidence was direct and positive, there was no error in the court’s failure to charge on circumstantial evidence. 3. —Same—Charge of Court—Requested Charges. Where, upon trial of burglary, the court charged properly on all the issues raised by the evidence, including that of defendant’s identification, there was no error in refusing special charges. 4. —Same—Evidence—Description of Money. Where, upon trial of burglary, it developed that some money was stolen, there was no error in admitting evidence as to the description of the money found on defendant. 5. —Same—Evidence—Acts of Defendant. Upon trial of burglary, there was no error in showing the movements of the defendant and his arrest shortly after the alleged burglary. 6. —Same—Evidence—Other Transactions—Confessions. Where, upon trial of burglary, no purported confession was offered in evidence, there was no error in excluding testimony that the officer who arrested defendant and took him to jail, at some other time, mistreated other prisoners in an attempt to get their confessions. 7. —Same—Evidence—Identification. Where, upon trial of burglary, a State’s witness identified the defendant as the burglar, there was no error in excluding the conclusion of witness as to the color of the boots he wore. 8. —Same—Evidence—Description of Money. Where, upon trial of burglary, it was shown that a purse with money in it had been abstracted from the alleged burglarized house, and that similar money was found in possession of defendant shortly after the burglary, there was no error in showing that the alleged purse was found lying under the floor of the front gallery porch, the next morning after the burglary, and was empty.
65 Tex. Crim. 508Hamilton v. State (1912)
1.—Local Option—Statement of Facts. Where the record on appeal -showed no order was entered authorizing the statement of facts or bill of exceptions to be filed after term time, the same was stricken out on motion of the State. Following Misso v. State, 61 Texas Grim. Rep., 241, and other eases. 2. —Same—Statutes Construed—Repeal. The Vagrancy Act does not repeal the local option law as contended by defendant. Following Parshall v. State, 62 Texas Grim. Rep., 177. 3. —Same—Repeal—Statutes Construed. The Act of April 24th, 1909, p. 356, making it a felony to unlawfully sell intoxicating liquors in prohibition territory does not repeal the old article 402, Penal Code, which makes such sale a misdemeanor, where the election was held prior to the Felony Act. Following Lewis v. State, 58 Texas Grim. Rep., 351. 4. —Same—Statutes Construed. Article 597, New Revised Penal Code, provides that a violation of the local option law is a misdemeanor only where the election was held prior to the Act of 1909, and a felony, if the election is held thereafter. 5. —Same—Statutes Construed. See opinion as to power of Legislature to change the penalty of the local option law. 6. —Same—Motion in Arrest of Judgment—Form—Substance. A mere formal objection to the indictment or information can not be reached by a motion in arrest of judgment, this only goes to the substance thereof and not to the form, and a formal objection must be taken before the trial of the case. Following West v. State, 6 Texas Grim. App., 485, and other cases. 7. —Same—Date of Offense—Motion in Arrest of Judgment. Upon a trial of a violation of the local option law, the information or indictment must allege that the election had been held prior to the time the Act of the Legislature became effective making the offense a felony, but an objection on this ground is formal and must be filed prior to announcement and prior to a verdict by the jury, and can not be reached by motion in arrest of judgment. Davidson, Presiding Judge, dissenting. Qualifying Head v. State, 64 Texas Grim. Rep., 112. 8. —Same—Jurisdiction—Date of Offense—Motion in Arrest. Our code fixes the jurisdiction of County and District Courts'as a matter of law, and an exception to the indictment or information that they do not allege that the local option election had been held prior to the time the Act of the Legislature became effective making the offense a felony, is not an objection to the jurisdiction of the court, because such date of the election is not descriptive of the offense and is not a matter of substance; it is therefore only a formal objection which can not be made after the verdict by a motion in arrest of judgment. Davidson, Presiding Judge, dissenting. 9. —Same—Statutes Construed—Statement of Facts. .Section 1 of the Official Stenographer’s Act of 1909, provides that only in the event official shorthand reporters are appointed, the terms of that Act shall apply; and where the statement of facts, in an appeal from the County Court, was filed after adjournment without an order of court, the same must be stricken out on motion of the State. Following Mosher v. State, 62 Texas Grim. Rep., 42, and other cases.
65 Tex. Crim. 518De Los Santos v. State (1912)
1. —Gaming—Indictment—Knowingly Permitting Premises to he Used—Then and There—Venue—Table. Where the indictment alleged that defendant in the county of Webb and State of Texas on or about the 20th day of March, 1911, did then and there knowingly permit premises then and there under his control to be used as a place to bet and wager and gamble with cards, etc., it sufficiently alleged the venue of the offense, and it was not necessary to describe the kind of table or bank. Distinguishing Eylar v. State, 37 Texas Grim. Rep., 257. Davidson, Presiding Judge, dissenting. 2. —Same—Charge of Court—Subtenant—Knowledge of Defendant. Where, upon trial of permitting gambling under defendant’s control, the evidence showed that the defendant sublet the alleged premises in which gaming was proved to have taken place, and the court charged the jury that where a person rents the whole of a building and uses a part of it and sublets other parts, he is nevertheless, in the control of the whole building within the meaning of the gaming law, and if such gaming occurred with his knowledge, to find the defendant guilty, there was no error. Davidson; Presiding Judge, dissenting. 3. —Same—Constitutional law. The Gaming Act punishing .persons for permitting gambling on premises under their control is constitutional. Following Parshall v. State, 62 Texas Grim. Rep., 177. 4. —Same—Charge of Court—Circumstantial Evidence. Where, upon trial of unlawfully permitting gambling on premises under defendant’s control, the defendant was shown in such juxtaposition to the offense as to exclude any other issue than that of positive testimony, there was no error in the court’s failure to charge on circumstantial evidence; besides, the jury were instructed to acquit the defendant, unless they found that he knew that gambling was going on in the alleged room, the_ error, if any, was not such as to call for a reversal of the case, under Article 723, Code Criminal Procedure. Davidson, Presiding Judge, dissenting. 5. —Same—Charge of Court—Practice on Appeal. Where the record showed that at the time of acting on the motion for new trial no error was pointed out in the court’s charge, tlie_ same could not he considered on the general objection of the defendant; besides, the court’s charge is sufficient. Davidson, Presiding Judge, dissenting. 6. —Same—Witness Under the Buie—Discretion of Court. Where witnesses are permitted to testify who are not placed under the rule when the rule is demanded, the same is a matter of discretion, and in the absence of abuse shown, there is no error. Besides, the witnesses did not testify. 7. —Same—Sufficiency of the Evidence. Where, upon trial of knowingly permitting gambling on the premises under defendant’s control, the evidence sustained the conviction, there was no error.
65 Tex. Crim. 533Ex Parte Basham (1912)
The opinion states the case.
65 Tex. Crim. 534Roberts v. State (1912)
1. —Occupation—Selling Intoxicating Liquors—Local Option—Indictment. Where, upon trial of unlawfully pursuing the occupation 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. 2. —Same—Insufficiency of the Evidence—Local Option Law—Election. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the orders of the Commissioner’s Court failed to show for what purpose the local option election was held and the result of said election, and did not show that the local option law was in force in the county of the prosecution, nor did the certificate of publication show these facts, the conviction could not be sustained. 3. —Same—Name of Purchaser—Variance. Where, upon trial of unlawfully following the occupation of selling intoxicating liquors in local option territory, the evidence showed that there was a fatal variance in the name of one of the alleged purchasers, the conviction could not be sustained. [This case did not reach the hands of the Reporter until March, 1912.—Reporter.]
65 Tex. Crim. 537Ex Parte Thomas (1912)
From Dallas County. Original application for writ of habeas corpus asking release under a commitment for contempt of the Corporation Court of the city of Dallas.
65 Tex. Crim. 539Hogue v. State (1912)
The opinion states the case.
65 Tex. Crim. 545Mitchell v. State (1912)
The opinion states the case.
65 Tex. Crim. 564Yantis v. State (1912)
The opinion states the case.
65 Tex. Crim. 572Gavina v. State (1912)
1. —Esh and Game Law—Bill of Exceptions. Where, on an appeal from the County Court, the bills of exception were not filed until twenty-eight days after the adjournment of the court, the same could not he considered on appeal. Following Misso v. State, 61 Texas Grim. Rep., 241, and other eases. 2. —Same—Stenographer’s Act—Statement of Facts—Bills of Exception—Filing. The provision, as to filing of statement of facts, under the Stenographer’s Act of 1911 does not extend to bills of exception. See opinion for discussion of this Act, and the ninety days limit. 3. —Same—Information—Negative Allegations. Where, upon trial of a violation of the fish and game law under Article 529g, Penal Code, the information followed the statute, the same was sufficient, and it is not necessary to allege that the seine used and dragged was not a regular turtle net or that the defendant was seining in breeding ground or in breeding season. 4. —Same—legislative Intent—Closed Waters—Passes—Channels. Under Article 529g, Penal Code, establishing closed waters in this State, it was the intention of the Legislature to declare all waters within passes and within one mile on either side of all passes leading from the Texas coast waters into the Gulf of Mexico closed at all times against seining for fish therein, and by any means other than by the ordinary hook and line and set turtle net. 5. —Same—Pass—Channel—Statutes Construed. The pass intended by the legislative Act under Article 529g, Penal Code, is the entire length of the channel from Corpus Christi Bay to the Gulf of Mexico, and not the strait or pass between Padre Island and Mustang Island. 6. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions was not filed until after twenty-eight days after adjournment of the County Court, the same can not be cqnsidered on appeal; besides, the same presented no error. 7. —Same—Charge of Court—Seining—Coast Waters. Upon trial of a violation of the fish and game law, and unlawfully seining in prohibited waters under Article 529g, the court correctly charged the jury that such seining at any time of the year in the coast waters of the State, within one mile of either side of any pass leading from the coast waters into the Gulf of Mexico, was prohibited, and that the pass leading from the waters of Corpus Christi Bay to the Gulf of Mexico is within the said prohibited waters, and that if defendant did seine, etc., in said channel, to find him guilty. 8. —Same—Charge of Court—Corpus Christi Pass—Channel—law—Fact. The question as to whether the channel of Corpus Christi Bay constitutes Corpus Christi Pass is not an issue of fact, but a question of law, and there was no error in the court’s charge in so submitting it to the jury. 9. —Same—Charge of Court—Circumstantial Evidence. Where the court correctly charged on the law of circumstantial evidence, there was no error. 10. —Same—Charge of Court—Principals. Upon trial of unlawfully seining for fish in closed waters, where the evidence showed that all the parties were acting together in taking fish and dragging seines in prohibited waters, there was no error in the court’s charge on principals; as in misdemeanor cases, all persons who act together are principals. 11. —Same—Charge of Court. Where, upon trial of unlawfully seining in prohibited waters, the evidence supported the allegations in the information, there was no error in refusing a requested charge to acquit the defendant.
65 Tex. Crim. 578Burton v. State (1912)
1. —Theft of Horse—Codefendant—Severance. Where defendant announced ready for trial, and, after the State had introduced its testimony, offered to introduce his codefendant as a witness to which the State objected, which objection was sustained, and he thereupon asked leave to withdraw his announcement, which was refused, but he was permitted to file an affidavit of severance, which was also overruled, there was no reversible error, as defendant must have been aware of these matters before he announced ready for trial, no surprise having been shown; and-this, although the codefendant’s case was pending in a different court. Following Evans v. State, 46 Texas Grim. Rep., 72. 2. —Same—Evidence—Mortgage—Consent. Upon trial of theft of a horse, where it was shown that the same was taken without the knowledge and consent of the owner, there was no error in rejecting testimony that the property was taken with the connivance and consent of the owner in order to defraud the beneficiary in a mortgage which the owner had given; besides, there was no evidence of any such connivance. 3. —Same—Charge of Court—Circumstantial Evidence. Where the property was taken and this fact shown by direct testimony, and the question of fraudulent intent was established by circumstantial evidence, there was no error in the court’s failure to charge on circumstantial evidence. Following Flagg v. State, 51 Texas Grim. Rep., 602, and other cases. 4. —Same—Charge of Court—Intent. Where, upon trial of theft of a horse, the defendant claimed that he either had the consent .of the alleged owner or that he took the property by direction of another whom he believed to be the owner, and the court submitted these questions under proper charges to the jury as well as the requested charges applying thereto, there was no reversible error. 5. —Same—Charge of Court—Principals. Where, upon trial of theft of a horse, the evidence disclosed that the defendant and another acted together in the taking, there was no error in submitting the law of principals along with the law on fraudulent intent, and where the charge as a whole is not subject to the criticism contained in the motion for new trial, there was no error. [Rehearing denied April 24, 1912.—Reporter.]
65 Tex. Crim. 583Hickman v. State (1912)
The opinion states the case.
65 Tex. Crim. 587Meyer v. State (1912)
Tried below before the Hon. Jesse F. Odom. Appeal from_a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.
65 Tex. Crim. 590Clay v. State (1912)
The indictment was as follows: “IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS: The grand jurors for the County of Grimes, State aforesaid, duly organized as such at the May term, A. D. 1910, of the District Court for said county, upon their oaths in said court present that Henry Clay on or about the twenty-fourth day of May, one thousand nine hundred and ten, and anterior to the presentment of this indictment, in the County of Grimes and State of Texas, did then and…
65 Tex. Crim. 593Sweeney v. State (1912)
The opinion states the case.
65 Tex. Crim. 608Columbo v. State (1912)
1. —Local Option—Sufficiency of the Evidence—Felony. Where the indictment alleged the local option election to have been held subsequent to the enactment of the Felony Act, and. the evidence sustained the conviction, there was no error. 2. —Same—Jury and Jury law—Challenge to the Array—Jury Commissioners. Where the district judge appointed a jury commission to select jurors for the succeeding' term, who selected the jurors for only six weeks thereof, and the court appointed a jury commission at the end of these six weeks, for the remaining four weeks of said term, a challenge to the array of such jurors was correctly overruled. 3. —Same—Statutes Construed—Selection of Jurors. While the court might have proceeded under Article 695, Code Criminal Procedure, and ordered the sheriff to summons jurors after the time of the jurors selected by the jury commissioners had expired, yet under Articles 3145, 3150 and 3203, Revised Civil Statutes, and Articles 696 and 662, Code Criminal Procedure, there was no error in overruling a challenge to the array of jurors who had been selected by a jury commission appointed by the court during that part of the term for which no jurors had been selected, as the selection of jurors by a jury commission is supported by the whole policy of our law. Distinguishing Hurt v. State, 51 Texas Crim. Rep., 338, and other cases. 4. —Same—Challenge to Array—Challenge for Cause. Where, upon trial of felony, the defendant excepted to the array of the jurors selected by a jury commission during the term of court, because a majority of said commissioners and the jurors whom they had selected were prohibitionists, and neither excepted to the individual jurors nor moved for a change of venue, and there was nothing to show that the jurors who served in this case were prejudiced or had any bias against defendant, there was no error in overruling his motion. 5. —Same—Challenge to Array. Where jurors have been selected by a jury commission, no challenge to the array can be entertained. 6. —Same—Evidence—Contemporaneous Transactions—System. Where, upon trial of a violation of the local option law, a State witness had testified that he laid seventy-five cents on the counter of defendant and said he wanted some cheese, whereupon delendant picked up the money and went into a back room, and when defendant returned, the witness- went into said room and picked up a bottle of whisky wrapped in paper, there was no error in permitting the witness to testify that on several occasions prior and subsequent to said time, the same proceedings were gone through with defendant, and on each occasion witness had secured a bottle of whisky. Following James v. State, 63 Texas Crim. Rep., 75, and other cases. 7. —Same—Bill of Exceptions—Evidence. Where objections relate to matters which must be reserved by bill of exceptions, they can not be reviewed otherwise. 8. —Same—Charge of Court—Internal Revenue license—Frima Facie Evidence. Where, upon trial of a violation of the local option law, the State introduced in evidence internal revenue retail liquor license, and defendant claimed that he took out the license under the advice of friends and that he was only selling nonintoxicating malt liquors, there was no error in the court’s charge that said license were prima facie evidence that defendant was engaged in selling intoxicating liquors, but not prima facie evidence that defendant made the sale for which he was now on trial; and refusing a special charge more fully instructing the jury thereon. Article 603, Penal Code. 9. —Same—Charge of Court—Internal Revenue' license. Where, upon trial of a violation of the local option law, the State introduced in evidence an examined copy of entries made in the books of the internal revenue collector showing that defendant had secured a license as a retail liquor dealer, there was no error that the court in his charge denominated this paper an internal revenue license. Article 603, Penal Code. 10. —Same—Charge • of Court—Circumstantial Evidence. Where, upon trial of a violation of the local option law, the evidence showed that the prosecuting witness went into defendant’s place of business, laid down his money on the counter and called for cheese, but received a bottle of whisky in another room, there was no error in the court’s charge submitting the law of circumstantial evidence. Following Mosely v. State, 59 Texas Crim. Rep., 90, and other cases. [Rehearing denied April 10, 1912.—Reporter.]
65 Tex. Crim. 615Walker v. State (1912)
The opinion states the case.
65 Tex. Crim. 622Martin v. State (1912)
Bail Bond—Judgment Nisi—Description of Offense. Where the indictment charged the defendant with unlawfully selling spirituous, vinous and intoxicating liquors in quantities of one gallon and less without license, and the bail bond alleged that the defendant was charged with the offense of unlawfully selling intoxicating liquors without license, the same did not sufficiently describe the offense, it not being an offense eo nomine. Following Loveless v. State, 50 S. W. Eep., 361.
65 Tex. Crim. 624Williams v. State (1912)
1. —Giving Intoxicants to Minor—Statutes Construed. Article 1054, Revised Penal Code, and Article 593, Revised Penal Code, may both stand as valid; although the punishment under either is the same. 2. —Same—Variance—Insufficiency of the Evidence. Where defendant was prosecuted of knowingly giving intoxicants to a minor, under Article 1054, Revised Penal Code, he could not be convicted under Article 593, Revised Penal Code, as the latter article does not make it necessary that the party knowingly gave the intoxicant. 3.—Same—Age of Minor—Appearances. Where, upon trial of knowingly giving intoxicants to a minor, the evidence showed that from the appearnce of the alleged minor he was a man of twenty-two or twenty-three years of age, being about five feet and six or seven inches high, weighing one hundred and fifty pounds and having a heavy growth of beard and presenting himself as a man of age, etc., and that defendant understood that the said alleged minor was of age, the conviction was not sustained.
65 Tex. Crim. 627Tucker v. State (1912)
1. —Carrying Pistol—Judgment—Nunc Pro Tunc. Where the judgment was not entered at the term of court at which the verdict was rendered, it could be entered nunc pro tunc at the next term of the court on motion of the county attorney after due notice. 2. —Same—Verbal Charge—Misdemeanor—Bill of Exceptions. In the absence of a bill of exceptions it will be presumed that the court gave a verbal charge in a misdemeanor case, and that the same was correct. Articles 719 and 720, Code Criminal Procedure. 3. —Same—Separate Counts—Indictment—Election by State. An indictment in a misdemeanor case may charge by separate counts different misdemeanors, and the State can not be required to elect, and where defendant was convicted on one count, there being two counts in the indictment, there was no error in the absence of a statement of facts. 4. —Same—Indictment—Pistol. An indictment need not charge that the pistol was unlawfully carried. Following Pickett v. State, 10 Texas Grim. App., 290.
65 Tex. Crim. 629Smith v. State (1912)
The opinion states the case.
65 Tex. Crim. 637Dobson v. State (1912)
1. —local Option—Date of Election—Indictment. Where the indictment failed to allege the time the said local option law was put into operation in the county of the prosecution, this defect should have been raised by a motion to quash and could not be raised by motion in arrest of Judgment. Following Hamilton v. State, 65 Texas Grim. Rep., 508, and other cases. 2. —Same—Evidence—Newly Discovered Evidence. Examining trial testimony of which defendant’s counsel was aware at the time of the trial is not newly discovered evidence, and a discrepancy therein and that of the testimony on trial is not ground for new trial. [Rehearing denied May 1, 1912.—Reporter.]
65 Tex. Crim. 639Grantland v. State (1912)
1. —Aggravated Assault—Complaint by Prosecutrix. Where the bill of exceptions, as accepted, showed that the defendant first asked the prosecutrix to whom she first made complaint of defendant’s conduct in assaulting her, and that thereupon State’s counsel brought out the fact that she told her mother about the trouble immediately on reaching home, without giving the details, there was no error. 2. —Same—Evidence—Rebuttal. Where the State’s counsel, after defendant had introduced his testimony and rested the case, recalled the prosecutrix in rebuttal and asked her about the particulars of the assault upon her by the defendant there was no error. 3. —Same—Argument of Counsel. Where, upon trial of aggravated assault, the issue was sharply drawn between the testimony of the prosecutrix and defendant and his witnesses, there was no error in the argument of State’s counsel in saying that if the jury acquitted defendant, they must believe that -the prosecutrix committed perjury. 4. —Same—Sufficiency of the Evidence—Conflict of Evidence. Where, upon trial of aggravated assault, the evidence was conflicting, but sufficient to sustain the conviction, there was no error. [Rehearing refused April 24, 1912.—Reporter.]
65 Tex. Crim. 643Stephens v. State (1912)
1. —Murder—Evidence—Explanation. Where, upn trial of murder, the defense testimony had fully explained the testimony of the State as to certain particular offenses with which defendant had been charged, there was no error in sustaining an objection to further permit the defendant to testify in this regard. 2. —Same—Charge of Court—Argument of Counsel—Bill of Exceptions. Where the bill of exceptions with reference to objections to the argument of State’s counsel, in connection with a refused charge, did not explain the matter in such a way as to show what was done and said, and present the matter so as to show this court where error was committed, the matter could not be reviewed. 3. —Same—Charge of Court—Self-Defense. Where the court’s charge on self-defense, with reference to preventing robbery, instructed the jury that if it reasonably appeared to the defendant by the acts, words, etc., of deceased, there was no reversible error, even if it be conceded that the deceased uttered no words at the time, as this was to defendant’s advantage, the charge being otherwise correct. 4. —Same—Newly Discovered Evidence. There was nothing in defendant’s motion for new trial, wherein he claimed that if he had known it. at the time, he would have shown by a State’s witness that in his opinion the testimony of deceased’s mother with reference to seeing deceased was not true because it was too dark, as this was inadmissible in that form and is not newly discovered evidence.
65 Tex. Crim. 649Hamilton v. State (1912)
The opinion states the case.
65 Tex. Crim. 649Drake v. State (1912)
The opinion states the case.
65 Tex. Crim. 652Waller v. State (1912)
The opinion states the case.
65 Tex. Crim. 654Wallace v. State (1912)
1. —Murder—Charge of Court—Other Parties. Where, upon trial of murder, the evidence showed that other parties might have done the killing, it was reversible error not to submit a charge on this phase of the case. Following Dubose v. State, 10 Texas Grim. App., 230, and other cases. 2. —Same—Evidence—Declarations of Third Parties. Upon trial of murder, it was reversible error to admit the declarations of third parties made about half an hour prior to the homicide, in the absence of the defendant and having no connection with the said homicide. Dowell v. State, 58 Texas Grim. Rep., 482, and other cases. 3. —Same—Evidence—Contradicting Witness. Where a State’s witness testified that he was not drunk at the time of the killing and on the morning- thereafter, it was reversible error not to permit defendant to show that said witness was drunk at said time. 4. —Same—Evidence—Remarks by Judge—Credibility of Witness. Where the State’s witness denied being drunk the morning after the killing, it was reversible error not to permit defendant to show that the witness was drunk, especially where the court in excluding this testimony, remarked that he did not think the testimony was material, etc. Following Green v. State, 53 Texas Grim. Rep., 496, and other cases. 5. —Same—Rule Stated. Where a witness is produced who undertakes to give a statement of facts coming under his observation, etc., his credibility may be tested in respect to his condition as to drunkenness or sobriety.
65 Tex. Crim. 658Smith v. State (1912)
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—Verdict—Bill of Exceptions. In the absence of any grounds of objection in the bill of exceptions to the verdict of the jury, the matter can not be revised on appeal. 3. —Same—Bill of Exceptions—Evidence. Where there was nothing in the record to indicate that the State’s witness was ever sent to jail, other than as stated in the motion for new trial which was not verified by a bill of exceptions, the matter could not be reviewed. 4. —Same—Charge of Court—Alibi. Where no exceptions were taken to the court’s charge on alibi in a misdemeanor, the matter could not be reviewed.
65 Tex. Crim. 659Booth v. State (1912)
The opinion states the case.
65 Tex. Crim. 662Gould v. State (1912)
Sunday Law—Judicial Construction. Where, upon appeal from a conviction of a violation of the Sunday law, under Article 1014, Penal Code, the questions involved are the same as those decided adversely to appellant in a companion case, there is no error.
65 Tex. Crim. 663Wells v. State (1912)
The opinion states the case.