66 Tex. Crim.

Volume 66 — Texas Criminal Reports

151 opinions

66 Tex. Crim. 1Ex Parte Martinez, Jr. (1912)
From Taylor County. Original habeas corpus asking relief from a judgment of murder in the first degree inflicting the death penalty, relator claiming that he was prevented from giving notice of appeal by reason of mob violence.
66 Tex. Crim. 122Gould v. State (1912)
The opinion states the case.
66 Tex. Crim. 135Motley v. State (1912)
The opinion states the case.
66 Tex. Crim. 137Banker v. State (1912)
Tried below before the Hon. G. C. Baker. Appeal from a conviction of assault; penalty, a fine of $5. Leaving out formal part's, the recognizance stated “That ’ the said W. P. Banker who stands charged in this court with the offense of assault and battery,” etc., giving no punishment or further description of the offense.
66 Tex. Crim. 138Robinson v. State (1912)
1. —Aggravated Assault—Continuance—Reputation. A continuance will not he granted to secure a witness to testily to the good character of the defendant, or to impeach the prosecuting witness. 2. —Charge of Court—Circumstantial Evidence. Where, upon trial of aggravated assault, there was direct evidence, there was no error in the court’s failure to charge on circumstantial evidence. 3. —Same—Adult Male. Where defendant was charged with making an assault on a woman, and the evidence showed that the person assaulted was a woman and defendant an adult male, the conviction was sustained. [Rehearing denied March 27, 1912.—Reporter.]
66 Tex. Crim. 140Mealer v. State (1911)
66 Tex. Crim. 146Jacobs v. State (1912)
1. —Rape—Evidence—Declaration of Third Parties—Res Gestae. Where, upon trial of rape, the occurrence testified to by the State’s witnesses happened soon after the alleged rape and before defendant and prosecutrix had separated thereafter, in the presence of the' defendant, there was no error in admitting in evidence the declarations of third parties at that time with reference to the fact that prosecutrix was trying to get away from defendant and the latter was attempting to take her away and force her to marry him. 2. —Same—Evidence—Outcry by Prosecutrix. Where, upon trial of rape, it was shown by the ■ evidence that the prose; cutrix made an outcry or attempted statement with, reference to the assault upon her by the defendant, and that this was • the first time she had been placed where she could make an outcry after the alleged rape and before the parties had separated, the defendant attempting to further force her to marry him, there was no error in admitting said testimony. 3. —Same—Evidence—Telephone Message. Where, upon trial of rape, the defendant claimed that prosecutrix had promised to marry him and had consented to the act of sexual intercourse and had done so before, which prosecutrix denied and that she had shunned defendant on all occasions, there was no error to admit testimony that the witness heard prosecutrix answering defendant over the. telephone and that she said “no” all along. 4. —Same—Evidence—Physical Examination. Where, upon trial of rape, prosecutrix testified that defendant had forced her under circumstances that would constitute rape and overcame her by physical strength, there was no error to admit testimony showing the physical condition of prosecutrix the next morning after the alleged outrage and that she was taken to a physician, etc. 5. —Same—Evidence—General Reputation—Bill of Exceptions. Where, upon trial of rape, defendant claimed that he had been having intercourse with prosecutrix before the alleged rape and that others had such sexual intercourse with prosecutrix, there was no error to admit in evidence her general reputation for virtue and chastity. 6. —Same—Evidence—Declarations of Defendant. Upon trial of rape, where defendant had denied the alleged offense, and there was evidence that he called the prosecutrix over the telephone some hours prior to the alleged offense, there was no error in admitting in evidence the declarations of defendant to a third party with reference to said telephone message. 7. —Same—Evidence—Declaration of Third Party—Res Gestae. Where, upon trial of rape, the declarations and acts of third parties were admitted as res gestae, there was no error. 8. —Same—Evidence—Declarations of Prosecutrix. Where, upon appeal from a conviction of rape, it appeared that the defendant was in position to hear the declarations of prosecutrix with reference to taking a walk on the night of the alleged offense—the defendant having followed prosecutrix and taken her from her escort and assaulted her—there was no error in admitting these declarations in evidence. 9. —Same—Statement of Pacts—Motion for Hew Trial. Where the statement of facts growing out of the motion for new trial was not filed until after the adjournment of the court, the same can not be considered on appeal. 10. —Same—Sufficiency of the Evidence. Where, upon trial of rape, the testimony was sufficient to sustain a conviction,. there was no reversible error.
66 Tex. Crim. 152Lott v. State (1912)
The opinion states the case.
66 Tex. Crim. 156Singh v. State (1912)
The opinion states the case.
66 Tex. Crim. 166Frye v. State (1912)
1. —Forgery—Evidence—Passing Forged Instrument. Upon trial of forgery by raising a check from $2.25 to $7.25, there was no error in admitting testimony that a check for $7.25 was cashed at the bank; this was admissible as a circumstance tending to show that defendant was the person who had made the changes in the check, although no one saw him do so. 2. —Same—Evidence—Comparison of Handwriting. Upon trial of forging a check, there was no error in permitting the State to show hy comparison the proven signature of defendant and the alleged writing on the alleged forged check. Following Caldwell v. State, 28 Texas Crim. App., 566, and other cases. 3. —Same—Evidence—Arrest—Declarations by Defendant. Where, upon trial of forgery, it was shown that defendant was not under arrest at the time he made statements with reference to the alleged forged cheek, there was no error in admitting them in evidence. Following Martin v. State, 57 Texas Crim. Rep., 264, and other cases.
66 Tex. Crim. 169Moore v. State (1912)
The opinion states the case.
66 Tex. Crim. 172Trezevant v. State (1912)
1. —Retail Liquor License—Club—Bona Ride Members. A bona fide chartered club may sell intoxicating liquors to its members without taking out a license to do so, during the time such sales may be allowed by law. Hollowing Adams v. State, 66 Texas Crim. Rep., 220, and other cases. 2. —Same—Selling to Stranger—Intoxicating Liquors. Where the information charged defendant with selling intoxicating liquors in quantities of one gallon or less without license, and there was no contention made that the party to whom the sale was made was a member of the chartered club for whom defendant was secretary and manager at the time he made the sale, and the evidence showed that the sale was made directly to such person and not to any member of the club for the use of such person who was not a member, and the court properly submitted both in his main charge and the requested charges the law applicable to the facts, the conviction is sustained. 3. —Same—Information—Pursuing Occupation. It is not necessary, in an information charging the sale of intoxicating liquors by retail without license, to allege that the defendant was pursuing the occupation of retailing liquors; under the law any person who shall sell intoxicating liquors is liable to the penalty fixed by law. Qualifying Cassidy v. State, 58 Texas Crim. Rep., 454, 4. —Same—Case Stated—Chartered Club. Where, upon trial of selling intoxicating liquors in quantities of one gallon or less without license, the evidence showed that the defendant was the secretary and manager of an incorporated club, who sold liquor to its members and that he had made a sale to a person not a member thereof, for which he was being prosecuted, and further tended to show that such sales were made to all persons who desired to purchase, there was no reversible error, and the conviction under the information was sustained. 5. —Same—Evidence—Declarations by Defendant. Upon trial of selling intoxicating liquors, etc., without license, there was no error in admitting' in evidence the declarations of defendant, while not under arrest, asking the officer how much it would take to square himself. 6. —Same—Evidence—Bill of Exceptions. In the absence of a bill of exceptions, the exclusion of testimony can'not be considered on appeal. 7. —Same—Case Stated—Incorporated Club. Where defendant was prosecuted for selling intoxicating liquors, etc., without license, and the evidence showed, that as steward of an incorporated club, he made the sale of intoxicating liquors to a person not a member of the club, and that he had no license to do. so, the conviction was sustained.
66 Tex. Crim. 176Hicks v. State (1912)
Carry Pistol—Intent—Insufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant entered a store with others, and while in the act of taking a drink, saw a pistol lying near, which he took in his hands and fired to see whether it would shoot, the same was not sufficient to sustain the conviction. Following Waddell v. State, 37 Texas, 354, and other cases.
66 Tex. Crim. 177Newell v. State (1912)
1. —Aggravated Assault—Conflict of Testimony. Where, upon trial of aggravated assault, the evidence was conflicting, but sufficient to sustain the conviction, there was no error. 2. —Same—Evidence—General Reputation—Single Acts of TTnchastity. Where, upon trial of aggravated assault, defendant had placed his general reputation for virtue and ehasity in issue, there was no error in admitting in evidente separate instances of uncliastity which had occurred some five or six years previously. Following Davis v. State, 52 Texas Crim. Rep., 629, 108 S. W. Rep., 667; Forrester v. State, 38 Texas Crim. Rep., 245.
66 Tex. Crim. 179Davis v. State (1912)
1. —Keeping Disorderly House—Information—Surplusage. Where the information alleged that the defendant was directly and indirectly connected with keeping a disorderly house, the word, “indirectly” may be treated as surplusage. 2. —Same—Charge of Court—Agency. Where the information charged the offense of keeping a disorderly house, and that the same was occupied, etc., directly and indirectly by the defendant, and the court only submitted the question of direct occupancy, it is unnecessary to pass upon the question of agency, the word “indirectly” being surplusage.
66 Tex. Crim. 180Manning v. State (1912)
The opinion states the case.
66 Tex. Crim. 181Ex Parte Wade (1912)
The opinion states the case.
66 Tex. Crim. 188McWhirter v. State (1912)
The opinion states the case.
66 Tex. Crim. 198Tate v. State (1912)
1.—Robbery—Continuance—Alibi—Want of Diligence. Where defendant’s application for continuance was insufficient in law and without sufficient diligence, and the alleged absent testimony was with reference to an alibi, and the defendant when testifying did not mention the fact that he was with such witness at the time, there was no error in overruling his motion, 2. —'Same—Newly Discovered Evidence—Impeaching Testimony. Where, upon trial of robbery, the prosecuting witness positively identified the defendant as the man who knocked him down and robbed him; and the alleged newly discovered evidence was merely of an impeaching character, there was no reversible error. Following Barber v. State, 35 Texas Crim. Rep., 70, and other cases. 3. —Same—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence sustained the conviction, there was no error. [Behearing denied April 24, 1912.—Beporter.]
66 Tex. Crim. 201Wysong v. State (1911)
1. —Murder—Continuance—Absent Testimony Proved by Other Witnesses. Where the absent testimony was sought on the assumption that the State would prove a previous difficulty between defendant and deceased, which it did not do, and the record showed that defendant proved the same facts by practically all the witnesses and the State did not contest the point, there' was no error in overruling the motion for continuance. 2. —Same—Evidence—Animus of Defendant. Upon trial of murder, there was no error in permitting the State to introduce testimony to show defendant’s state of mind and that he was mad and prepared himself with a pistol in the presence of witness. 3. —Same—Charge of Court—Reasonable Doubt. Where, the court in his charge instructed the jury that the burden of proof was on the State, that the defendant was presumed to be innocent, etc., and in ease_ of a reasonable doubt, to find a verdict of not guilty, there was no error in failing to charge the reasonable doubt in connection with the charge on manslaughter for which defendant was convicted; under Article 723, Code Criminal Procedure. 4. —Same—Sufficiency of the Evidence—Murder—Manslaughter. If the proof shows murder in the first or second degree, and even does not show manslaughter, yet where manslaughter is submitted, and the jury find defendant guilty thereof, the conviction is sustained. Following Gray v. State, 61 Texas Crim. Rep., 454, and other cases. Article 817, Code Criminal Procedure. Davidson, Presiding Judge, dissenting.
66 Tex. Crim. 207Trimble v. State (1911)
1. —Swindling—Sufficiency of the Evidence—Rule Stated, The Appellate Court must take all the evidence tending to establish the facts against the appellant and all reasonable and correct inferences from such facts as are proven, and if from all this, the verdict of the jury can be sustained, the Appellate Court is bound thereby and’ can not on that ground reverse a judgment of conviction. 2. —Same—Case Stated—Circumstantial Evidence. Where, upon trial of swindling, the case was one of circumstantial evidence which sustained the verdict, there was no reversible error. Davidson, Presiding Judge, dissenting. 3. —Same—Evidence—Other Transactions. Where, upon appeal from a conviction of swindling, the case was one of circumstantial evidence, the State claiming that the defendant had sunk a certain shaft for minerals and thereby fraudulently obtained a thousand dollars, etc., and there was also some testimony with reference to another shaft sunk hy defendant for the same parties and that these parties had made investigations with reference to said two shafts, there was no error in admitting this class of téstimony, and objections thereto only went to the weight thereof. 4. —Same—Bill of Exceptions—Evidence. It is elementary that bills of exception to the admission or exclusion of testimony must within themselves contain such matter and point out the error alleged to have been committed, and where, upon trial of swindling, the objection to the testimony was that it was not responsive to the questions asked, but the bill of exceptions did not show that said testimony was inadmissible, there was no reversible error. 5. —Same—Evidence—Bill of Exceptions—Other Transactions. Where, upon trial of swindling, defendant was charged with salting a lead mine, and there was testimony that defendant had dug two shafts for one of which he was being tried, and he objected to testimony as to the shaft for which he was not tried, but the bill of exceptions did not show or point out the error in the admission of such testimony, the same could not be considered on appeal. 6. —Same—Evidence—Bill of Exceptions. Where, upon trial of swindling by means of digging a certain shaft for lead, etc., there was testimony with reference to another shaft which defendant had dug for the same parties, and the parties injured claimed that defendant had swindled them by putting lead in the shaft for which he was being tried, a bill of exceptions with reference to testimony as to taking out‘lead out of an auger hole of the first shaft for which defendant was not on trial, which did not point out the error, could not be considered on appeal. 7.—Same—Charge of Court—Other Transactions—Limiting Testimony. Where, upon trial of swindling by means of digging a shaft for natural lead, there was testimony as to another shaft which defendant had dug before the one for which he was being tried and in which it was contended he had also placed lead to deceive the persons injured, there was no error in submitting a charge limiting said testimony to the developing of the res gestae and the intent of defendant.
66 Tex. Crim. 220Adams v. State (1911)
Tried below before the Hon. W. E. Whitehurst. Appeal from a conviction of unlawfully retailing intoxicating- liquors in nonlocal option territory without license; penalty, a fine of $250 and confinement in the county jail for one day.
66 Tex. Crim. 228Smith v. State (1912)
1. —Murder—Charge of Court—Manslaughter—Provocation. Where, upon trial of murder, there was evidence tending to show that the provocation did not come from the deceased but from others, and the court submitted this phase of the case in a proper charge, there was no error in the court’s charge on manslaughter in limiting the provocation producing the passion to the acts of the deceased; the evidence warranting such a charge also. 2. —Same—Charge of Court—Threats. Where, upon trial of murder, the defense claimed that other parties than the deceased had made threats against the defendant and had attempted to execute same when defendant mistook deceased for said third party and killed him, but the court properly submitted this theory to' the jury, there was no error; besides, the objection thereto was too general. 3. —Same—Charge of Court—Precedent. Where, upon appeal from a conviction of murder in the second degree, the appellant objected to the court’s charge on manslaughter, self-defense and other parts of the charge in a general way, the same could not be considered; besides, all these charges were considered and passed upon in a previous appeal and found correct. 4. —Same—Article 723, Code Criminal Procedure. While defendant under the statute can for the first time make objections to the charge of the court in a motion for new trial, yet under Article 723, Code Criminal Procedure, unless the alleged error is calculated to injure the rights o_f the defendant, this would not be ground for reversal, and such objections can not be looked upon as of the same gravity as if they had been called to the attention of the court by special requested charges. 5.—Same—Charge of Court—Limiting Testimony. ' It is not required that testimony should be limited, where it can only be used for the purpose for which it was introduced, and where defendant himself introduced testimony that he had a difficulty with a third party and asked no charge limiting this testimony, there was no error. [Rehearing denied May 8, 1912.—-Reporter.]
66 Tex. Crim. 234Maxey v. State (1912)
1. —Murder—Continuance—Confession. Where the absent testimony would not have probably produced a different result, there was no error in overruling a motion for continuance; besides, the testimony of the absent witness would not have rendered the confession inadmissible, as the same complied with the provisions of the statute and. was voluntarily made; moreover, the stenographic report of the absent testimony was admitted in evidence. 2. —Same—Voluntary Confession—Evidence. Where the written confession showed upon its face that every provision of the statute had been complied with; that it was voluntarily made, and the evidence was such that it was proper for the confession to go before the jury, there was no error; besides, every statement in the confession was proven independently. 3.—Same—Jury and Jury law—Challenge—Opinion of Juror—Insanity. Where, upon trial of murder-, the juryman answered that he recognized insanity but that it would require overwhelming proof, yet on further examination, answered that he would be governed by the court’s charge and would fry the plea of insanity on the preponderance of evidence, there was no error in overruling the challenge. Distinguishing Jones v. State 60 Texas Crim. Rep., 139, and other cases. 4. —Same—Evidence—Matters Drawn Out by Defendant. Where the defendant had drawn out parts of the conversation between the witness and deceased, there was no error in permitting the State to bring out the entire conversation. Following Spearman v. State, 34 Texas Crim. Rep., 279; besides, the same facts were proved by other testimony. 5. —Same—Evidence—Insanity—Opinion of Witness—Bill of Exceptions. Where the bill of exceptions with reference to testimony on the defendant’s plea of insanity merely contained the question, but. not the answer of the witness, the same could not be considered; besides, there was no error in excluding the testimony, in as much as the evidence showed that the defendant was of sound mind at the time of the homicide, and testimony that defendant was subject to epileptic fits did not suggest unsoundness of mind at the time of the killing, as the last spell of epilepsy occurred in the spring prior to the homicide in the October following, and that these spells only affected defendant for a short period of time. 6. —Same—Insanity—Rule Stated—Epilepsy—Nonexpert. One who shows intimate association or a course of dealing with a person will be permitted to testify whether or not in his opinion such person was of ■unsound mind, but it is only a physician or an expert witness who shows himself qualified that can testify as to what the effect of epilepsy or other, disease on the human mind is likely to produce; and a nonexpert witness can not give his opinion on a theoretical question based on facts with which he is not familiar. 7. —Same—Evidence—Insanity—Self-Serving Declarations. Upon trial of murder, wliere defendant had interposed the plea of insanity, there was no error in refusing to admit in evidence the contract made by defendant with a certain company four years prior to the homicide which provided that if defendant was hurt by reason of having a fit, he would not hold the company liable; as this was in the nature of a self-serving declaration. 8. —Same—Presiding Judge—Absence from Trial. Where, upon trial of murder, defendant and his counsel did not object to the judge stepping aside temporarily to answer a call of nature during the examination of a juror, until after the jury had returned its verdict and no injury was shown, there was no reversible error. 9. —Same—Manslaughter—Charge of Court. Where the matter objected to in the court’s charge on manslaughter could only have been beneficial to defendant, and the charge upon the whole was correct, there was no error. 10. —Same—Charge of Court—Insanity. Where, upon trial of murder, the court’s charge on insanity followed approved precedent, and did not eliminate any cause that might have occasioned insanity according to the evidence, there was no error. 11. —Same—Epilepsy—Sufficiency of the Evidence. Where, upon trial of murder, the evidence under defendant’s plea of" insanity showed that from childhood defendant had had attacks of epilepsy, but that as he grew older, the attacks were less frequent, and there was no evidence that he had had an attack since the spring before the killing in October, and there was no testimony that would indicate that defendant’s mind was otherwise than normal at the time of the homicide, there was no reversible error; the evidence showing a deliberate killing for which the jury assessed the death penalty. [Rehearing denied April 10, 1912.—Reporter.]
66 Tex. Crim. 246Smith v. State (1912)
1. —Theft—fraudulent Taking—Intent. Where, upon trial of theft of an automobile, the evidence showed that ■ the same was not taken with intent of permanently appropriating the same to the use and benefit of the defendant, or to deprive the owner of the value thereof, but for the purpose of stealing a ride, the conviction could not be sustained. following Johnson v. State, 36 Texas, 375, and other cases. 2. —Same—Appeal—Jurisdiction. Where it appeared that the appellant had first declined to appeal, but afterwards during the same term of court gave notice of appeal after his motion for new trial was overruled, this court has jurisdiction over the case. 3. —Same—fraudulent Taking. Although appellant may be guilty of another offense, he can not be convicted of theft in the absence of testimony showing a fraudulent taking.
66 Tex. Crim. 249Milam v. State (1912)
1. —Keeping Disorderly House—Selling Spirituous Liquors—Bill of Exceptions. Where, upon appeal from a conviction of keeping a disorderly house by keeping for sale spirituous, etc., liquors without license, the bills of exception to certain testimony with reference to such sale were entirely defective, the same could not be considered on appeal; besides, such testimony was clearly admissible. Following Conger v. State, 63 Texas Crim. Rep., 312, and other cases. 2. —Same—Charge of Court—Misdemeanor. In the absence of a bill of exceptions or requested charge, in a misdemeanor case, complaints to the charge of the court can not be considered on appeal. Following Basquez v. State, 56 Texas Crim. Rep., 329. 3. —Same—Charge of Court—License—Burden of Proof. Where defendant was charged with keeping and selling spirituous, etc., liquors without license, the court correctly charged that the burden was on defendant to show he had license. Following Lucio v. State, 35 Texas Crim. Rep., 320, and other cases. 4. —Same—Continuance—Bill of Exceptions. In the absence of a bill of exceptions, the overruling of a motion for continuance can not be considered on appeal. 5. —Same—Sufficiency of the Evidence. Where, • upon trial of keeping a disorderly house by the sale of spirituous, etc., liquors without license, the evidence sustained a conviction, there was no error. 6. —Same—Newly Discovered Evidence—Want of Diligence. Where the alleged newly discovered evidence was insufficient, and no proper diligence was shown to procure the same before trial, there was no error. Following Gray v. State, 65 Texas Crim. Rep., 204.
66 Tex. Crim. 251McLaurin v. State (1912)
The opinion states the case.
66 Tex. Crim. 252Hogg v. State (1912)
The opinion states the case.
66 Tex. Crim. 254Williams v. State (1912)
1. —Gaming—Craps—Evidence—Continuous Offense. Where defendant was tried for playing a game of craps, and offered evidence that he did not engage in any such game, by a witness whom the State claimed played another game with the State’s witness, the same was reversible error, as craps is' not a continuous game, and besides, the State did not show that defendant played such game with the witness he offered. Following Day v. State, 27 Texas Crim. Rep., 143, and other cases. 2. —Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Where State’s counsel in his argument stated that no living man had taken the stand to deny that defendant was guilty, and it appeared that the defendant was the only person who could have been permitted to testify, the same was an allusion to defendant’s failure to testify and reversible error. 3. —Same—Caution to Prosecuting Officers. See opinion for caution to prosecuting officers urging them not to inject into the argument matters not authorized by the evidence.
66 Tex. Crim. 256Ex Parte Bullington (1912)
Erom Wichita County. Original habeas corpus proceeding asking release from arrest on contempt proceedings.
66 Tex. Crim. 257Saye v. State (1912)
The opinion states the case.
66 Tex. Crim. 258Maxwell v. State (1912)
Aggravated Assault—Means Used—Deadly Weapon—Variance. Where defendant was charged with committing aggravated assault with wire pliers,, the same being a deadly weapon, and the evidence did not support the charge in the information that the defendant used wire pliers and whether the same was a deadly weapon, the variance was' fatal.
66 Tex. Crim. 259Patton v. State (1912)
1. —local Option—Jury and Jury law—Jury Commission. Where the district judge appointed a commission to select jurors for the succeeding term, but during said succeeding term found that the court remained in session over the time for which jurors were selected, and then appointed another jury commission to select jurors for the remainder of the term out of which the panel who tried the defendant was selected, there was no error in overruling a motion to quash the venire, because the jurors wei'e not summoned as talesmen. Following Columbo v. State, 65 Texas Crim. Rep., 608. 2. —Same—Charge of Court—Shipments of liquor. Upon trial of a violation of the local option law, there was no error in admitting evidence that defendant had received eight barrels of whisky; to show the character of the business in which defendant was engaged, and there was no error in the court’s failure to limit the effect of such testimony. 3. —Same—Sufficiency of the Evidence—Bill of Exceptions. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, and there were no bills of exception to the admissibility of evidence, the conviction is sustained.
66 Tex. Crim. 261Hughes v. State (1912)
The opinion states the case.
66 Tex. Crim. 262Golden v. State (1912)
The State’s testimony showed that the letter, enclosed in an envelope addressed to the alleged party injured, and which came through the mail, reads as follows: “We are in need of money, and we want you to give us three hundred dollars and if you do not leave it where we tell you, we will kill you, and burn all your property. So you had better do what we tell you. Leave it at the corner post north from your gate, above your house by Bloomquist’s new land. It must be there by the 7th of March, and if it is not there, we will do what we told you we would. You must put it there and not say nothing about it, for if you do, we will kill you anyway, so there it is up to you. (Signed) Titus, Rex, Eletcher.” The letter was handed to the sheriff, and one of his deputies went out to the place of the alleged injured party and got a shot sack and placed a lot of iron knucks in it, tied a string around it and carried it to the corner of the field fence where the letter had stated to leave the money; that it was just dusk when he placed the sack at the corner of the fence; that he then went out into the cotton field a short distance and watched the road and the sack, and after dark, between nine and ten o’clock, he could see some men coming up the road towards the sack, and as he raised they started to run, and he fired at them with bird shot and hit one of them, who hollowed and screamed and dropped his hat as he ran down the road; that the bag was gone which he had left there, and that thereupon, he went to a store, and taking some lanterns and a lot of men with him, he surrounded defendant’s house; that defendant told him that if the hat the sheriff had had a buckle on the band, he would know whose it was; that defendant looked at the hat and said it belonged to one of his codefendants; that the sheriff and his party together with defendant then went over to the codefendant whom they found lying down, shot and bloody. Whereupon, he arrested defendant and his two codefendants; that while he could not positively identify the men, that from his position on the ground at the time, he could see them fairly well by the skylight and that to the best of his knowledge, the defendant and his codefendants were the men he fired at. There was a great .deal of circumstantial evidence by the State, to the effect that defendant and his codefendants grubbed ground and burned brushes near the field of the alleged injured party; that they were seen together shortly before this occurrence, etc. The defendant’s testimony tended to prove an alibi and showed that he could neither read nor write, and he denied that he ever caused any such letter to be sent to anyone; that his codefendants could neither read nor write and had nothing to do with the alleged letter, etc.
66 Tex. Crim. 268Henry v. State (1912)
1. —Murder—Evidence—Bills of Exception, In.the absence of bills of exceptions, the court’s ruling in admitting testimony can not be considered; besides, the motion for new trial did not set out such error. 2. —Same—Argument of Counsel. Where the language complained of by the district attorney was not stated in the motion, and there was no bill of exceptions, there was nothing to review on appeal. 3. —Same—Charge of Court. Where the complaint to the charge of the court was of a general character and pointed out no error, the same could not be reviewed. Hollowing Quintanna v. State, 29 Texas Crim. App., 454. 4. —Same—Requested Charges. Where the complaint to the failure of the court to submit special charges was of a general character and did not point out any error, the same could not be reviewed on appeal; besides, the requested charges which were applicable were given by the court. 5. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction inflicting the death penalty, and the court in his charge properly submitted all the issues raised by the evidence, there was no error. [Rehearing denied May 15, 1913.—Reporter.]
66 Tex. Crim. 270Dickson v. State (1912)
66 Tex. Crim. 281Ayers v. State (1912)
The opinion states the case.
66 Tex. Crim. 282Castro v. State (1912)
1. —Murder—Self-Defense—Charge of Court—Defendant’s Standpoint. Where, upon trial of murder, the court, in his charge on self-defense, instructed the jury to view the transaction from what they believed from the evidence was the standpoint of the defendant at the time, etc., the same was reversible error. Following Simmons v. State, 55 Texas Crim. Rep., 441. 2. —Same—Charge of Court—Burden of Proof. Where, upon trial _of murder, the. court’s charge shifted the burden of proof and required the jury to believe the defensive theory before they could acquit, and omitted the reasonable doubt, the same was reversible error. Following Maloney v. State, 57 Texas Crim. Rep., 435, and other cases. 3. —Same—Charge of Court—Self-Defense—Porce. Where, upon trial of murder, the court’s charge limited the degree of force, which the law authorizes a party to use in repelling an attack, to the circumstances as they appear from the standpoint of the jury, and led the jury to believe that defendant used more force than necessary, the same was reversible error. Following Carson v. State, 57 Texas. Crim. Rep., 394, and other cases. 4. —Same—Charge of Court—Self-Defense—Threats.' Where, upon trial of murder, the evidence raised the issues of self-defense and threats, and the court failed to charge self-defense from both standpoints, but complicated the charge on self-defense with threats, the same was reversible error.
66 Tex. Crim. 286Larue v. State (1912)
Aggravated Assault—Evidence—Other Transactions. Where, upon trial of aggravated assault, the evidence showed that the injured party interefered in the difficulty between defendant and his brother on on side and a third party on the other, and -was cut by defendant, it was reversible error to admit in evidence the details of the prior trouble between said other parties with which the said injured party had nothing to do; and the error was not cured because of defendant’s cross-examination of State’s witnesses with reference thereto.
66 Tex. Crim. 288McMillan v. State (1912)
1.—Robbery—Continuance—Motion for New Trial. Where the record on appeal showed that by a postponement or continuance of the case the attendance of all the alleged absent witnesses could have been secured; that due diligence was shown; that the absent testimony was material to show that the defendant was not the man who committed the alleged robbery; that the question of defendant’s identity was a material issue; and that all this was borne out by the affidavits of the alleged absent witnesses, the motion for new trial should have been granted. '2.—Same—Evidence—Details of Conversation. While it was competent to permit the officer to testify that another called his attention to a certain watch, etc., yet the details of the conversation with reference thereto should not have been admitted. 3. —Same—Remarks by Court. Where the court in reading his charge tore out a portion thereof and remarked that he could not give a charge on circumstantial evidence because there was an eyewitness, he should have submitted an instruction withdrawing these remarks from the jury as requested. 4. —Same—Bills of Exception. Where, upon appeal from a conviction of robbery, the bills of exception were incomplete, the matters therein set up could not be reviewed. [Rehearing denied May 15, 1912.—Reporter.]
66 Tex. Crim. 291Fagnani v. State (1912)
The opinion states the case.
66 Tex. Crim. 291Gunter v. State (1912)
1. —Driving Horses from Accustomed Range—Recognizance. Where the recognizance did not show that appellant had been convicted of any offense, what punishment had been assessed, and was defective in other particulars, the same must be dismissed. 2. —Same—Bills of Exception. Where the bills of exception were not filed within the time authorized by the court, they could not be- considered on appeal. [Rehearing denied May 15, 1912.—Reporter.]
66 Tex. Crim. 293Swanney v. State (1912)
1. —Murder—Writ—Return—Jury and Jury Law. Upon trial of murder, there was no error in permitting the sheriff, on motion of the district attorney, to make his return on his writ summoning the jurors, and serving defendant with a copy thereof in due time. 2. —Same—Evidence—W eapon. Upon trial of murder there was no error in permitting the State’s witnesses to testify that they went to the place where deceased lay, about thirty minutes after the killing, and that they saw no weapons of any character on or about deceased. 3. —Same—Evidence—Husband and Wife. Where, upon trial of murder, the defendant placed his wife on the witness stand to show that her husband was not the father of her child, and that she told him of this just before he went to the scene of the homicide, there was no error in permitting the State, on cross-examination, to show that she had told defendant of these matters prior to the day of the killing, by laying the predicate to impeach her by another witness. 4. —Same—Rule Stated—Cross-Examination of Wife. The wife of the defendant may be cross-examined as to all matters testified to by her on her direct examination, and she may he asked questions tending to test the accuracy of her direct testimony as to all matters germane thereto. Following Dobbs v. State, 54 Texas Crim. Rep., 550, and other cases. 5. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction of manslaughter, under a proper charge of the court, there was no error.
66 Tex. Crim. 296Payne v. State (1912)
Burglary—Plea of Guilty—Warning. Where, upon trial of burglary, the defendant pleaded guilty, the court complying with all the requisites of the law, there was no error in refusing a new trial on the ground that defendant had been misled.
66 Tex. Crim. 297Gamble v. State (1912)
1.—Disturbing the Peace—Statement of Pacts. Where the statement of facts was filed after the adjournment of the County Court, and no order authorizing such filing was made, the same could not be considered on appeal. 2. —Same—Newly Discovered Evidence. Where the alleged newly discovered evidence was1 clearly insufficient to have authorized a new trial, there was no error. 3. —Same—Excessive Punishment. Where, upon trial of disturbing the peace, the penalty assessed against the defendant was a fine of $25, the same was not excessive. 4. —Same—Charge of Court—Misdemeanor—Practice on Appeal. In misdemeanor cases, the court will not review on appeal any question as to the charge of the court or refusal to give a special charge, unless the charge of the court is excepted to at the time and a bill of exceptions reserved. 5. —Same—Bill of Exceptions—Argument of Counsel. Where the bill of exceptions did not show sufficiently as to what occurred with reference to argument of counsel and no special charge was requested, there was no error.
66 Tex. Crim. 300Woolridge v. State (1912)
The opinion states the case.
66 Tex. Crim. 302January v. State (1912)
The opinion states the case.
66 Tex. Crim. 307McIndoo v. State (1912)
1.—Carrying Pistol—County Judge. That the county judge represented the plaintiff as an attorney in a civil suit against the defendant, would not disqualify the judge from sitting in the case wherein defendant is charged with a criminal offense. ÍJ.—Same—Sufficiency of the Evidence. Where the evidence was conflicting in a trial for unlawfully carrying a pistol, the conviction will not be disturbed. 3. —Same—Evidence—Bill of Exceptions. In the absence of a bill of exceptions the admission of testimony can not be reviewed on appeal. 4. —Same—Verdict—Costs. Where the jury found defendant guilty of unlawfully carrying a pistol assessing his fine and that he should pay the costs, there was no error. 5. —Same—Misconduct of Jury—Bill of Exceptions. In the absence of a bill of exceptions, the ground of complaint that the jury separated can not be considered on appeal. 6. —Same—Charge of Court—Misdemeanor. In the absence of a bill of exceptions the failure of the court to submit the special charge requested in a misdemeanor ease can not be considered; besides, the same was covered by the main charge. [Rehearing denied May 33, 1913.—Reporter.]
66 Tex. Crim. 309Lubbock v. State (1912)
1. —Murder—Evidence—Character of Deceased. Where, upon trial of murder, the defendant offered to prove that his witness saw deceased make a violent and deadly assault upon a man with a knife, etc., which testimony was excluded, there was no .error, as it was not claimed that the defendant witnessed or knew of this difficulty prior to the homicide. Following Patterson v. State, 56 S. W. Rep., 59, and other eases. 2. —Same—Argument of Counsel. Where the bill of exceptions showed a qualification by the judge that the remarks of the district attorney with reference to defendant’s family was a reply to the argument of defendant’s counsel, he can not be heard to complain. Following Sinclair v. State, 35 Texas Crim. Rep., 130, and other cases. 3. —Same—Sufficiency of the Evidence. Where the conviction of murder in the second degree was sustained by the evidence, there was no error.
66 Tex. Crim. 311Yarborough v. State (1912)
The opinion states the case.
66 Tex. Crim. 313Ward v. State (1912)
The opinion states the case.
66 Tex. Crim. 316Vining v. State (1910)
The opinion states the case.
66 Tex. Crim. 324Yarborough v. State (1912)
The opinion states the case.
66 Tex. Crim. 326Thomas v. State (1912)
The opinion states the case.
66 Tex. Crim. 329Antu v. State (1912)
1.—Murder—Charge of Court—Self-Defense. Where, upon trial of murder, the court charged the jury on the law of gelf-defense, that the defendant was justified in using all necessary and reasonable force to defend bimself, but no more than the circumstances reasonably indicated to be necessary, the same was reversible error; the evidence showing that the deceased was the aggressor. 2.—Same—Impeaching Testimony. Where, upon trial of murder, the evidence showed a case of self-defense and that the conviction rested upon impeaching testimony of the State’s witnesses, the conviction can not be sustained.
66 Tex. Crim. 331Simmons v. State (1912)
1. —Assault to Murder—Statement of Facts. In the absence of a statement of facts, the charge of the court can not he reviewed. 2. —Same—Charge of Court—Degree of Murder—Malice. Where defendant was convicted of assault with intent to murder, and the court gave the definition of malice aforethought, it is not necessary to draw the distinction between the two degrees of murder, and in the absence of a statement of facts, there was no error.
66 Tex. Crim. 332Guill v. State (1912)
1. —Aggravated Assault—Statement of Facts—Bill of Exceptions. In appeals in misdemeanor cases from the County Court, the statement of facts and hills of exception must be filed within twenty days after adjournment, and no longer time can be extended; and the statement of facts must be copied in the transcript. Following Mosher v. State, 62 Texas Crim. Rep., 42, and other cases. 2. —Same—Filing Back. A statement of facts which has been signed by the attorneys and approved by the court, but which is filed back and, in fact, filed after the expiration of twenty days after adjournment of the County Court, can not be considered on appeal. Following Henderson v. State, 20 Texas Crim. App., 304, and other cases. 3. —Same—Practice on Appeal. In the absence of a statement of facts, bills of exception to the evidence can not be considered, and it must be presumed that the charge of the court applies to a state of facts that could have been proved under the information. 4. —Same—Practice on Appeal. The rules laid down by the Appellate Court with reference to the filing of statement of facts and bills of exception must be adhered‘to. 5. —Same—Practice on Appeal. In the absence of a statement of facts in misdemeanor cases, exceptions to refused charges, the admission and excluding of evidence, etc., can not he considered on appeal.
66 Tex. Crim. 335Knight v. State (1912)
1*—Murder—Sentence—Eight Weeks—Statement of Facts. . Where the term of court lasts longer than eight weeks, the time for filing statement of facts and bills of exception begins to run from the time the court pronounces sentence on the defendant, that being the final judgment, and where these were filed after ninety days of said sentence the same could not be considered on appeal. 2. —Same—Term of District Court—Ninety Days Order. Where the term of the court lasted longer than eight weeks, and the court granted ninety days after the sentence within which to file statements of facts and bills of exception, an order granting ninety additional days is not authorized by law. 3. —Same—Rule Stated—Time of Filing Statement of Facts. Where the term of court continues in session more than eight weeks, the time of filing statements of facts, etc., begins to run from the date of sentence, but where the term of the court is for less than eight weeks, such time for filing these papers begins to run at the date of adjournment. 4. —Same—Practice on Appeal—Charge of Court. In the absence of a statement of facts, bills of exception to the testimony or objections to the charge of the court can not be considered on appeal, and it must be presumed that the trial court charged the law and all the law applicable to the evidence. 5. —Same—Going Armed—Self-Defense. The fact that defendant carried his gun home with him would not impair his right of self-defense. 6. —Same—Argument of Counsel. Prosecuting attorneys should always keep within the record and discuss the evidence and draw therefrom only legitimate deductions. 7. —Same—Competent Witness—Divorce. That a State’s witness had been divorced from her first husband on the ground of adultery was correctly excluded. 8. —Same—Jury and Jury law—Jury Commissioners. It is the policy of the law that jurors should be drawn by the jury commissioners and should not be selected by the sheriff or any officer. 9. —Same—Misconduct of Jury. Where, upon trial of murder, it appeared from the record on appeal that facts were admitted before the jury which were not in evidence and which were injurious to the defendant, and that one of the jurors had formed and expressed an opinion that defendant ought to have his neck broke, á new trial should have been granted.
66 Tex. Crim. 338Hatfield v. State (1912)
The opinion states the case.
66 Tex. Crim. 342Talley v. State (1912)
1. —Selling Liquor to Minor—Statutes Construed. Article 593, Revised Penal Code, relating to the sale of liquors to minors, applies to express companies and common carriers alone; Article 622, Revised Penal Code, relating to such sales, applies to retail liquor dealers; and Article 1054, Revised Penal Code, to all persons other than the licensed retail dealer and express companies. 2. —Same—Rules of Construction—Legislative Intent. The rules of construction require that such construction must be given to the Penal Code that all its provisions may he upheld if consistent with the intent of the Legislature. 3. —Same—Venue—Statutes Construed—Boundary Line. Article 2"38, Revised Code Criminal Procedure, applies only to such laws which are in force in the county where the offense is alleged to have been committed and in the county where the prosecution is sought to be maintained, and where the offense is committed on the boundary of said counties or within four hundred feet thereof, the laws regulating the sale of intoxicating liquors in territory where the sale is permitted and providing penalties, etc., have no force and effect in territory where the sale is prohibited. 4. —Same—Case Stated—Jurisdiction. Where defendant was indicted for selling and giving intoxicating liquors to a minor in a county where prohibition was in force because he sold such liquor as a licensed retail liquor dealer in an adjoining county one hundred .feet from the county line, in which said last county prohibition was not in force, the prosecution could not he maintained. 5. —Same—Character of Local Option Law. _ Under the Constitution providing that the sale of liquor might be prohibited in certain territory and permitted in other sections and also providing for local stock laws, while general in their nature in the sense that they become effective in all that territory where the people so decide by their ballots, yet they are local in the sense that they are not in force and effect where the people have not so decided. 6. —Same—Sale of Intoxicating Liquors. The license laws regulating the sale of intoxicating liquors, and all provisions thereof are limited in their operation to the territory where the sale is permitted, while the prohibition laws and all provisions thereof are limited to the territory where prohibition has been adopted; this is authorized by the dual system under the Constitution. 7. —Same—Legislative Bower—Local Option Laws. The Legislature may pass laws to secure the enforcement of the prohibitory law or the stock law whenever and wherever adopted, and make them applicable to that territory alone; and may enact laws regulating the sale of intoxicating liquors, or the keeping of live stock, where not prohibited, and make such laws applicable alone to such territory; this is authorized by the Constitution. 8. —Same—Limitations—Retail Liquor Dealer. The Legislature having limited the law licensing the retail liquor dealers to territory alone where the sale had not been prohibited, none of the provisions of that law are in force in territory where prohibition has been adopted. 9. —Same—Venue—Want of Jurisdiction. Where the indictment charged a' sale of intoxicating liquors by á licensed retail liquor dealer in a prohibition county and the evidence showed that defendant is a retail liquor dealer a hundred feet from the line of said county in an adjoining county where such retail liquor dealing was not prohibited, the conviction could not he sustained.
66 Tex. Crim. 346Lawrence v. State (1912)
Burglary—Insufficiency of tlie Evidence. Suspicions are not sufficient, the testimony must in some way connect the defendant with the theft of the alleged stolen property to authorize a conviction, and where the State failed to make out its case as to the taking of the property, the conviction for burglary could not be sustained.
66 Tex. Crim. 348Williams v. State (1912)
Tried below before the Hon. D. B. Hill. Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary.
66 Tex. Crim. 351Clardy v. State (1912)
1. —Rape—Continuance—Other Transactions—Age of Consent. Upon trial of rape, there was no error in overruling a motion for continuance on the ground of absent testimony to show that the prosecuting witness had intimate relations with one of the absent witnesses. This would be no defense in a rape case upon a female under the age of consent. 2. —Same-Evidence—Continuance. Where defendant expected to show by the absent testimony that the witness who was suspected of having had intercourse with prosecutrix had left the country, there was no error in overruling the motion, in a trial for rape on a female under the age of consent. 3. —Same—Evidence—Hearsay. Where the testimony of the absent witness was hearsay and inadmissible, there was no error in overruling a motion for continuance. 4. —Same—Evidence—Collusion. Where there was no issue of collusion on the part of the absent witnesses and prosecutrix to prosecute the defendant for rape, there was no error in overruling aii application for continuance for the absence of the hearsay testimony of said witnesses. 5. —Same—Evidence—Other Transactions. Where, upon trial of rape on a female under the age of consent, defendant claimed, in his motion for continuance^ that he could show by the absent testimony that prosecutrix had intercourse with some other person than defendant prior to the time alleged in the indictment, there was no error in overruling the motion. Besides, prosecutrix had not been examined thereon. 6. —Same—Other Acts of Sexual Intercourse. Other acts of sexual intercourse prior to the one alleged in the indictment are admissible in evidence, and there was no error upon trial of rape' upon a female under age of consent to permit the State to ask prosecutrix if the alleged act of intercourse with defendant was the first she had with him, etc. Following Battles v. State, 63 Texas Crim. Rep., 147. 7. —Same—Evidence—Bill of Exceptions. Where, upon trial of rape, the defendant asked a continuance to show an alibi, but the court’s qualification of the bill as accepted by the defendant showed that the witness was probably in attendance of court and that if not so in attendance, the absent testimony was probably not true, there was no error in overruling the motion. 8. —Same—Buie Stated—Discretion of Court. Under Article 597, Code Criminal Procedure, an application for continuance is not a matter of right as it was before the amendment of said article, but is addressed to the sound discretion of the court, and where the absent testimony is not probably true, there was no error in overruling a motion for new trial based on an application for continuance of such testimony. 9. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did .not show that the absent witness would have testified as to the defendant’s whereabouts on a specific date and that this was the day upon which the alleged crime occurred, there was no error in overruling the motion for continuance; the date alleged in the indictment not precluding the State from showing that the offense occurred within a time nót barred by limitation. 10. —Same—Evidence—Unwilling Witness—leading Question. Where the State’s witness was a most unwilling and a reluctant witness, there was no error in permitting the State to ask leading questions. 11. —Same—Evidence—Acts of Intimacy, Upon trial of rape upon a female under the age of consent, there was no error to show acts of intimacy not amounting to sexual intercourse between defendant and prosecutrix. Following Battles v. State, 63 Texas Crim. Rep., 147. 12. —Same—Sufficiency of the Evidence. Where, upon trial of rape the evidence sustained the conviction, there was no error. [Rehearing denied May 39, 1913.—Reporter.]
66 Tex. Crim. 356Warner v. State (1912)
The opinion states the case.
66 Tex. Crim. 359Stephens v. State (1912)
Catching Fish—Eling Pleadings—Two Days. The statutes granting two days in which defendant may prepare and file pleadings is mandatory. Article 578, Revised Code Criminal Procedure. Following Reed v. State, 31 Texas Crim. Rep., 35, and other cases.
66 Tex. Crim. 360Washington v. State (1912)
Tried below before the Hon. Arthur P. Bagby. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life.
66 Tex. Crim. 366Weaver v. State (1912)
The opinion states the case.
66 Tex. Crim. 368Partridge v. State (1912)
Unlawfully Catching Fish—Pleading—Two Days. Where, upon appeal from a misdemeanor, the record showed that the defendant demanded two full days after arrest in which to prepare his pleading, it was reversible error to refuse same, and it was not necessary to make known to the court what character of pleadings defendant desired to file or that he desired to present any. Following Evans v. State, 36 Texas Crim. Rep., 32, and other eases.
66 Tex. Crim. 369Templeton v. State (1912)
The opinion states the case.
66 Tex. Crim. 370Hubbert v. State (1912)
1. —Swindling—Indictment—Statutes Construed. Where one by false representations acquires from another a valuable right by procuring the latter’s signature to a note, which renders him liable to pay same in the negotiation of a loan, the same comes within the meaning of the language used in Article 943, Penal Code, defining the offense of swindling. 2. —Same—Insufficiency of Indictment. Where on account of the conflicting allegations in the indictment, in that it alleged that the swindling was accomplished by obtaining the note from the party injured, the owner thereof, and then alleging facts which in law show that said party was not the owner of said note and that the same was not obtained from him, the indictment was rendered insufficient, and the prosecution must be dismissed.
66 Tex. Crim. 374Thomas v. State (1912)
The opinion states the case.
66 Tex. Crim. 378Hubbard v. State (1912)
The opinion states the case.
66 Tex. Crim. 378White v. State (1912)
The opinion states the case.
66 Tex. Crim. 383Smith v. State (1912)
The opinion states the case.
66 Tex. Crim. 392Robinson v. State (1912)
1. —Occupation—Selling Intoxicating Liquors—Indictment. Where the indictment charging the occupation of selling intoxicating liquors in local option territory was in conformity with approved precedent, the same was sufficient. Following Slack v. State, 61 Texas Crim. Rep., 372, and other cases. 2. —Same—Former Conviction—Separate Offenses. Where defendant filed a plea of former conviction, alleging that lie had been convicted of violating the local option law in making sales to two of the parties named in the indictment upon which defendant was being tried for pursuing the occupation of selling intoxcating liquors in local option territory, the same was correctly stricken out on motion of the State, as the two offenses are entirely distinct. 3. —Same—Carving—Different Offenses. While the State can carve but once and convict a person of a given transaction, yet, where the transaction for which he had been convicted would not in and of itself constitute a different offense also, the doctrine of carving does not apply. 4. —Same—Evidence—Other Sales. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in admitting evidence of other sales to show the business that defendant was engaged in.
66 Tex. Crim. 396Bryant v. State (1912)
Burning Automobile—Statement of Facts. Where the statement of facts was filed fifty-one days after the adjournment of court, and the court undertook to .allow ninety days after adjournment to file same with hills of exception, the same could not he considered on appeal.
66 Tex. Crim. 397King v. State (1912)
1. —Swindling—Indictment—Certainty of Pleading. Where, upon trial of swindling, the allegations in the indictment were sufficient to inform defendant that the offense with which he was charged was that he had represented himself as the owner of thirty-seven head of cattle when in fact he owned no such cattle, and had by reason of such representation induced the parties named to pay him the money for said cattle, the same was sufficient under articles 441 and 448, Code Criminal Procedure. Distinguishing Cummings v. State, 36 Texas Crim. Rep., 152. 2. —Same—Money—Checks—V ariance. Where, upon trial of swindling, defendant contended that the evidence showed that he received checks instead of money as alleged in the indictment, there was no variance imder Article 945, Penal Code; besides, the evidence showed that he had received money. 3. —Same—Sufficiency of the Evidence. Where, upon trial of swindling, the evidence sustained the conviction, there was no error. [Rehearing denied May 8, 1912.—Reporter.]
66 Tex. Crim. 400Price v. State (1912)
1. —Carrying Pistol—Impeaching Own Witness. Where the State’s witness denied telling the county attorney that he saw defendant with a pistol, it was reversible error to permit the county attorney to take the witness stand and testify that the witness told him that' he saw defendant with a pistol. 2. —Same—Rule Stated—Impeachment—Witness. The mere denial or failure to testify to a certain fact would not authorize the State to impeach its own witness; this can only be done where the witness makes affirmative testimony injurious to the State’s case, and which testimony is a surprise to the State. Following Goss v. State, 57 Texas Crim. Rep., 557, and other cases. 3. —Same—Evidence—Moral Turpitude. Where defendant was permitted without objection by the State to ask a State’s witness whether he had not been convicted in another State • on the charge of felony and sentenced to the penitentiary, to which the witness answered in the affirmative; this rendered him incompetent to testify, and it was immaterial when he was so convicted, as he remains incompetent until he is pardoned. Following White v. State, 33 Texas Crim. Rep., 177, and other cases. 4. —Same—Evidence—Moral Turpitude. Upon trial of unlawfully carrying a pistol, the defendant should have been permitted to impeach the State’s witness by showing that he had been indicted for burglary in another county of the State. 5. —Same—Evidence—Credibility of Witness. Upon trial of unlawfully carrying a pistol, the defendant should have been permitted to show that if the State’s witnesses saw defendant with a pistol, that they failed to inform the officer who had charge of them at the time as county convicts.
66 Tex. Crim. 403Jones v. State (1912)
1. —local Option—Indictment. Where the indictment complied with the requirements of approved form, the same was sufficient. 2. —Same—Announcement—Surprise. Where the cause is remanded upon other ground, the question of withdrawing announcement of ready on account of surprise need not be considered. 3. —Same—Agency—Evidence. Where, upon trial of a violation of the local option law, the defendant offered to prove that he only acted as agent of the alleged purchaser of the whisky, it was reversible error not to permit him to do so. 4. —Same—Requested Charge—Agency. Where the requested charge more aptly presented the question of agency than the court’s main charge, the same should have been given.
66 Tex. Crim. 405Stephens v. State (1912)
The opinion states the case.
66 Tex. Crim. 406Autry v. State (1912)
The opinion states the case.
66 Tex. Crim. 407Floyd v. State (1912)
The opinion states the case.
66 Tex. Crim. 409Cabiness v. State (1912)
1. —Keeping Disorderly House—Bawdy House—Charge of Court. Where the indictment, upon trial of keeping a bawdy house, properly charged the offense under Article 500; Revised Penal Code, in the conjuctive form, and the court correctly submitted the question in the disjunctive form, there was no error. 2. —Same—Misdemeanor—Practice on Appeal. In misdemeanor cases this court will not consider any objections to the charge of the court unless bills of exception are taken at the time the charge is given, and special charges requested covering the points, and in case of lefusal, a bill of exceptions must be reserved thereto. 3. —Same—Sufficiency of the Evidence—Newly Discovered Evidence. Where, upon trial of keeping a bawdy house, the evidence sustained the conviction, and the alleged newly discovered evidence in no way met the requirements of the law, there was no error. 4. —Same—Indictment—Duplicitous Pleading—Rule Stated. Where several ways are set forth in the same statute by which an offense may be committed and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses and they may be charged conjunctively in the same count. Following Phillips v. State, 29 Texas, 226, and other eases. Distinguishing Porter v. State, 48 Texas Crim. Rep., 125; Novy v. State, 62 Texas Crim. Rep., 492, 138 S. W. Rep., 139. 5. —Same—Case Stated—Conjunctive Pleading. Where the indictment alleged that the defendant did then and there unlawfully keep and was concerned in keeping • a certain house then situate as a bawdy house and as a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation, the same was sufficient under Article 500, Eevised Eenal Code. 6.—Same—Duplicitous Pleading—Motion to Quash—Waiver. Where no motion to quash was made in the court below on the ground of duplicitous pleading, and the question' of insufficient indictment on that ground was not raised in the lower court the defendant thereby waived such defect. Following Nicholas v. State, 23 Texas Crim. App., 317, and other oases.
66 Tex. Crim. 416O'Marrow v. State (1912)
1. —Embezzlement—Partnership. One who appropriates to his use partnership effects is not guilty of embezzlement under the statute. 2. —Same—Jurisdiction. Article 240, Code Criminal Procedure, provides that the offense of embezzlement may be prosecuted in the county in which the defendant received the property. 3. —Same—Partnership, Definition of. Where, upon trial of embezzlement, the evidence showed that under the agreement between defendant and the prosecutor the former would only be an employee of the latter, receiving a part of the profit as compensation for his services, the same was not a partnership. Following Buzard v. Bank, 67 Texas, 83. 4. —Same—Sufficiency of the Evidence. Where, upon trial of embezzlement, the evidence showed that the alleged partnership between defendant and the prosecutor was hut a conditional agreement with the conditions of which defendant did not comply, the same was not a sufficient defense, and the conviction was sustained. 5. —Same—Charge of Court—Partnership—Weight of Evidence. Where, upon tidal of embezzlement, the defense interposed the defense of partnership between defendant and prosecutor and the court’s charge thereon was more favorable to defendant than the law required, and the same was not on the weight of the evidence, there was no error. 6. —Same—Misconduct of Jury. Where the alleged extrinsic matter which was discussed in the jury room was not of a material character and did not affect the issue in the case, there was no reversible error. 7. —Same—Charge of Court—Defensive Matter. Where, upon trial of embezzlement, the court’s charge properly submitted the defensive matter arising from the evidence in a proper manner, there was no error.
66 Tex. Crim. 421Gould v. State (1912)
66 Tex. Crim. 425Decker v. State (1912)
The opinion states the case.
66 Tex. Crim. 426Ferguson v. State (1912)
The opinion states the case.
66 Tex. Crim. 428Stallworth v. State (1912)
Tried below before the Hon. W. A. Keeling. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100.' The prosecuting witness testified that the defendant and her husband had been his tenants on his farm and that he had ordered them to leave; that they left, but the defendant returned in a buggy and entered the tenant house which they had formerly occupied and took her trunk therefrom, placed it in her buggy and left with it; that he followed her on…
66 Tex. Crim. 430Kinslow v. State (1912)
The opinion states the case.
66 Tex. Crim. 433Crawford v. State (1912)
The opinion states the case.
66 Tex. Crim. 433Craig v. State (1912)
The opinion states the case.
66 Tex. Crim. 441Cooper v. State (1912)
1. —Attempt to Commit Burglary—Declarations of Defendant—Arrest. Where defendant’s bill of exception as approved by the court showed that no evidence was admitted to go to the jury as to any statement made by defendant after he was arrested, there was no error. Following Blain v. State, 34 Texas Crim. Rep., 448; besides, no arrest was shown. 2. —Same—Evidence—Alibi—Charge of Court. Where the defendant contended that he slept at the residence of his mother on the night of the attempted burglary, and that he was not awakened until after daylight; the State contending that the offense was committed before daylight, and the court submitted a correct charge on alibi, reasonable doubt, etc., there was no error. 3. —Same—Charge of Court—Practice on Appeal. The charge of the court must be taken as a whole, and when the same is not subject to the criticism that it is upon the weight of the evidence, there is no error. 4. —Same—Argument of Counsel. Where the argument of State’s counsel was not improper, but simply a deduction from the testimony, there was no error. 5. —Same—Argument of Counsel. Where the district attorney did not use the language imputed to him, as shown by the bill of exceptions, there was no error. 6. —Same—Cross-Examination—Bill of Exceptions. Where the bill óf exceptions did not show that defendant’s witness testified to any material facts or in what way the cross-examination of State’s counsel had been harmful to defendant, there was no reversible error. 7. —Same—Election by State. Where the indictment in one count charged the defendant with burglary, and in another count, with an attempt to commit burglary, the State could not be required to elect, and the court properly submitted both counts. 8. —Same—Practice on Appeal. Where the matters complained of were not reserved by bill of exceptions or motion for new trial the same can not be reviewed on appeal. 9. —Same—Circumstantial Evidence—Charge of Court. Where the evidence was not entirely circumstantial and defendant was identified as the party who attempted the burglary, there was no error in the court’s failure to charge on circumstantial evidence. 10. —Same—Indictment—Endorsement. Where, upon trial of attempt to commit burglary, the indictment was endorsed, “indictment for burglary,” this did not render the indictment void, and was no ground to quash same. 11. —Same—Bill of Exceptions—Practice on Appeal. Where the trial-judge specifically-declined to approve the bill of exceptions, it can not be considered on appeal; besides, the remarks of State’s counsel did not constitute reversible error; no requested charge having been asked. 12. —Same—Bill of Exceptions—Qualification. Where a bill of exception is qualified by the trial judge and accepted by the defendant, he is bound thereby. Following Blain v. State, 34 Texas Crim. Rep., 448.
66 Tex. Crim. 446Green v. State (1912)
The opinion states the case.
66 Tex. Crim. 455Jordan v. State (1912)
Tried below before the Hon. W. R. Blackshear. Appeal from a conviction of aggravated assault; penalty, a fine of $50. The opinion states the case.
66 Tex. Crim. 460O'Neal v. State (1912)
1. —Local Option—Evidence—Continuance. Where, upon trial of a violation of the local option law, a motion for continuance was the fourth application, which wholly failed to show diligence and defendant made the same proof by other witnesses which he expected to show by the absent testimony, there was no error. 2. —Same—Argument of Counsel—Rill of Exceptions. Where the bill of exceptions did not explain anything of the circumstances under which the alleged remarks of State’s counsel were made, and the court charged the jury not to consider said remarks, there was no error. 3. —Same—Evidence—Motive of Witness. Upon trial of a violation of the local option law, there was no error in admitting testimony to show the motive, status, and interest of defendant’s witnesses, such testimony not being offered to impeach the witnesses. Following Gelber v. State, 56 Texas Crim. Rep., 460, and other cases. 4. —Same—Information—Date of Election. Where the question of the failure to allege the date of the local option election in the information was not raised in the lower court, the same could not be considered on appeal. Following Meyer v. State, 65 Texas Crim. Rep., 587, and other cases. 5. —Same—Evidence—Interest of Witness. While the fact that a witness was indicted for a violation of the local option law could not be admitted to impeach the credibility of the witness, it was admissible for the purpose of showing the motive, status, and interest of the witness against the State.
66 Tex. Crim. 467Jones v. State (1912)
The opinion states the case.
66 Tex. Crim. 469Jackson v. State (1912)
Murder—Charge of Court—Self-Defense. Where, upon trial of murder, the defendant was convicted of manslaughter, and the evidence showed that in shooting at E. in self-defense, the defendant shot D., who was an innocent bystander, the court should have submitted self-defense to the jury.
66 Tex. Crim. 470Gross v. State (1912)
Burglary—Insufficiency of the Evidence. Where, upon trial of burglary, the conviction was only supported by suspicion, the evidence was not sufficient to sustain the conviction.
66 Tex. Crim. 472Thomas v. State (1912)
1. —Local Option—Recognizance. A recognizance which does not recite that defendant was convicted, and fails to state the amount of the punishment assessed is insufficient, however, upon filing a sufficient recognizance the appeal is reinstated. 2. —Same—Charge of Court—Agency. Where, upon trial of a violation of the local option law, the court authorized the jury in his charge to convict on testimony not raised by the record, the same was reversible error. 3. —Same—Insufficiency of o the Evidence. See opinion where the Presiding Judge deems the evidence insufficient to sustain the conviction.
66 Tex. Crim. 473Caton v. State (1912)
The opinion states the case.
66 Tex. Crim. 478Shetters v. State (1912)
1. —Burglary—Discharge of Firearms—Private Residence. Where the indictment charged the offense of burglary under Article 1307, Revised Penal Code, by the discharge of firearms into a private residence with intent to injure the persons therein, the same was sufficient. Following Railey v. State, 58 Texas Crim. Rep., 1. 2. —Continuance—Testimony Not Probably True. Where defendant’s application for continuance showed a want of diligence and it appeared from the record that the absent testimony was not probably true, there was no error in overruling a motion for continuance. 3. —Same—Charge of Court—Signature of Judge—Article 723, Code Criminal Procedure. Where, upon appeal from a conviction of burglary it appeared from the record that the charge of the court was not signed by the trial judge but that it was the written charge of the court read and delivered to the jury and the only one, the same was not reversible error under Article 723, Code Criminal Procedure, no injury having been shown.
66 Tex. Crim. 480Garrett v. State (1912)
The opinion states the case.
66 Tex. Crim. 482Whitehead v. State (1912)
The opinion states the case.
66 Tex. Crim. 489Chapman v. State (1912)
1. —Assault to Murder—Evidence—Exhibition of Wounds. Where, upon trial of assault to murder, it was admitted that defendant had shot prosecuting witness producing serious and dangerous wounds, it was reversible error to permit the prosecutor to be brought into court and exhibit his wounds to the jury, and permitting a physician to take the bandages oS of said wounds and testify to the seriousness of the injury inflicted, etc. Following Graves v. State, 58 Texas Crim. Rep., 42, and other cases. 2. —Same—Jury and Jury Daw—Officer of the Court. Jurors should not be selected from persons who are engaged- in the discharge of duties as officers of the court; however, where the defendant had not exhausted his peremptory challenges, an objection that the juror was the deputy sheriff, etc., was not reversible error. 3. —Same—Argument of Counsel—Bystander’s Bill. Where the bystander’s bill showed that defendant’s counsel had argued the law to the jury as applied to the facts, and the court charged the jury that they would not consider any statement made by counsel to the jury as to what the law was, and that this was his answer to counsel’s argument, the same was reversible error.'
66 Tex. Crim. 492Rich v. State (1912)
The opinion states the case.
66 Tex. Crim. 494Negrete v. State (1912)
The opinion states the case.
66 Tex. Crim. 495Flowers v. State (1912)
The opinion states the case.
66 Tex. Crim. 496Clampett v. State (1912)
The opinion states the case.
66 Tex. Crim. 498Hogan v. State (1912)
The opinion states the case.
66 Tex. Crim. 500Fowler v. State (1912)
1. —Assault with Intent to Rape—Indictment—Attempt to Rape—Statutes Construed. Articles 608 and 640, Penal Code, create separate and distinct offenses, and an indictment under the latter statute must allege force, threats, or fraud; but where the indictment upon which defendant was tried sufficiently alleged an assault with intent to commit rape, as defined by Article 608, and the court submitted this offense to the jury, there was no error. 2. —Same—Age of Consent—Force. Where the injured female is under the age of consent, it is’ neither necessary to allege in the indictment nor to prove on trial that the offense was committed with or without consent and with or without the use of force, threats, or fraud. Following Moore v. State, 20 Texas Crim. App., 275, and other cases. 3. —Same—Indictment—Attempt to Ravish. Where the indictment alleged that defendant made an assault on the alleged female and did then and there attempt to ravish and have carnal knowledge of her, it sufficiently charged an offense under Article 608, Penal ■ Code, and the use of the word “attempt” in lieu of the word “intent” was a sufficient compliance with the Code. 4. —Same—Sufficiency of the Indictment—Assault with Intent to Rape. Where the indictment alleged that the defendant did unlawfully make an assault upon the person of a certain female named, under the age of fifteen years, not his wife, and that he did then and there attempt to ravish and have carnal knowledge of her, the same was sufficient, under Article 608, Penal Code. Approving Taylor v. State, 44 Texas Crim. Rep., 153, 69 S. W. Rep., 149. Distinguishing Wyvias v. State, 64 Texas Crim. Rep., 236, 142 S. W. 585. 5. —Same—Charge of Court—Force. Where the indictment properly charged an offense on a female under fifteen years of age under Article 608, Penal Code, it was only necessary for the court to define what was meant by assault, and it was not necessary to define force, or state that the offense must_have been committed by force. 6. —Same—Alibi—Simple Assault—Reasonable Doubt. Where, upon trial of assault with intent to rape, the defense was an alibi, this did not present the issue of simple assault, and the court did, therefore, not err in not charging on the reasonable doubt as between degrees of an offense. 7. —Same—Charge of Court—Alibi. Where, upon trial of assault with intent to rape, the defendant contended that the court should have submitted a more full and specific charge on alibi, but requested no charge, and the court submitted the doctrine of reasonable doubt, etc., there was no error. Following Jones v. State, 53 Texas Crim. Rep., 131. 8. —Same—Newly Discovered Evidence. Where defendant’s motion showed that the alleged newly discovered evidence could have been discovered by the use of ordinary diligence, and was only of an impeaching character, the same was correctly overruled.
66 Tex. Crim. 505Kellum v. State (1912)
The opinion states the case.
66 Tex. Crim. 506Logan v. State (1912)
1.—Rape—Insufficiency of the Evidence. Where the testimony of the prosecutrix as to the alleged act of sexual intercourse was unreasonable, and the evidence showed no acts of prior intimacy or even close acquaintance between defendant and prosecutrix, and no circumstantial corroboration of prosecutrix’ testimony, the conviction could not be sustained, although, as a rule, the unsupported testimony of the prosecutrix would be sufficient; however, such testimony must bear verity on its face, and not in itself create doubt as to its reasonableness and probable truth. 2. —Same—Argument of Counsel. Where the bill of exceptions does not present the argument of State’ counsel in a way that the same was reversible error. the cause will not be manded, yet counsel for the State are warned to remain in the record. 3. —Same—Argument of Counsel. Where, upon trial of rape, it appeared from the record on appeal th| improper argument of the State’s counsel influenced the jury in finding! verdict, the same might be reversible error, although no special charge’ requested. 4. —Same—Misconduct of Jury—Telephone. While the State has, perhaps, met the measure of proof to sustain verdict, where appellant complained that the jurors were permitted to with their families over the telephone, yet such practice is condemned and should not he permitted under Article 728, Code Criminal Procedure. 5.—Same—Practice on Appeal. While, perhaps, other matters outside of the insufficiency of the evidence would not be reversible error, yet taking them together with the evidence, the judgment must be reversed and the cause remanded.
66 Tex. Crim. 514Hogan v. State (1912)
The opinion states the case.
66 Tex. Crim. 518Ferguson v. State (1912)
Tried below before the Hon. W. C. Buford. Appeal from a conviction of theft; penalty, two years imprisonment in the penitentiary. The opinion states the case.
66 Tex. Crim. 519Darnell v. State (1912)
1. —Bail Bond—Transcript—Filing too Late. Where the final judgment on a forfeited hail bond was rendered September 18, 1911, and the record was not filed in the Appellate Court until February 17, 1912, the appeal is dismissed on motion of the State because th„ transcript was filed too late. 2. —Same—Practice on Appeal. Appeals to the Court of Criminal Appeals in such cases are regulated and governed by appeals in civil cases.
66 Tex. Crim. 520Brown v. State (1912)
The opinion states the case.
66 Tex. Crim. 522Gotcher v. State (1912)
The opinion states the case.
66 Tex. Crim. 525Welch v. State (1912)
The opinion states the case.
66 Tex. Crim. 537Crowell v. State (1912)
1. —Murder—Sufficiency of the Evidence, Where, upon trial of murder and a conviction of murder in the second degree, the evidence sustained the conviction, there was no error. 2. —Same—Misconduct of Jury—Bill of Exception. Where the matter of the misconduct of the jury set up in defendant’s motion for new trial was overruled by the trial court after hearing the testimony thereon, and the bills of exception presenting this matter were not filed in the lower court until four months and ten days subsequent to the adjournment of the court, the same could not be reviewed on appeal. Following Probest v. State, 60 Texas Crim. Rep., 608. 3. —Same—Bill of Exceptions—Practice on Appeal—Statutes Construed. Under Section 7, .Chapter 39, Thirty-First Legislature, bills of exception can not be filed after ninety days from adjournment of court, and the court has no authority to extend the time beyond that. 4. —Same—Charge of Court—Murder in the Eirst Degree. WThere defendant had been acquitted of murder in the first degree, it was unnecessary to submit murder in the first degree, and where the court used a form of charge frequently approved by this court in submitting murder in the second degree and malice, there was no error. 5. —Same—Charge of Court—Circumstantial Evidence. ■Where, upon trial of murder, the court submitted a correct charge on circumstantial evidence as applied to the facts, there was no error. 6. —Same—Charge of Court—Alibi—Weight of Evidence. Where, upon trial of murder, the court submitted the issue of alibi, accident, reasonable doubt, etc., in a proper manner and no special charges were requested, there was no error. 7. —Same—Transcript—Practice on Appeal—Bill of Exceptions. It is the duty of the clerk to prepare the transcript in criminal cases in preference to civil cases, and a bill of exceptions must be filed in sufficient time to enable the clerk to make out.the transcript so that the latter can be filed in the Appellate Court within ninety days from perfecting the appeal as in civil cases under articles 895, 896, Code Criminal Procedure, and the trial court can not grant more time for filing bills of exception thereafter. 8. —Same—Bill of Exceptions—Practice on Appeal. The law makes it the duty of appellant to prepare and file his bills of exception, and they are not in the same category with the statement of facts which the law requires the stenographer to prepare, and where the bill of exceptions has not been filed within time, the same can not be considered on appeal.
66 Tex. Crim. 541Whittaker v. State (1912)
1. —Forgery—Indictment—Purport Clause. It is the recognized doctrine in this State that it is not necessary that the indictment in forgery contain a purport clause; it is sufficient if the instrument is set out according to Its tenor. Following Rhudy v. State, 58 S. W. Rep., 1007. 2. —Same—Partnership—Corporation. It is not necessary to allege, in the indictment for forgery, whether or not the beneficiary in the instrument was a partnership or corporation, it not being claimed that he executed the instrument. 3. —Same—Obligation. Where the alleged instrument imports an obligation, the same was sufficient to support a prosecution for forgery.
66 Tex. Crim. 542Rowlett v. State (1912)
The opinion states the case.
66 Tex. Crim. 543Molthrop v. State (1912)
1. —Occupation—Intoxicating Liquors—Local Option—Charge of Court. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the charge of the court authorized a conviction simply upon the proposition that defendant had made two sales of whisky without submitting the question as to whether he was engaged in the occupation, the same was reversible error. 2. —Same—Insufficiency of the Evidence. See opinion holding that the facts in evidence are insufficient to sustain a conviction.
66 Tex. Crim. 545Molthrop v. State (1912)
The opinion states the case.
66 Tex. Crim. 546Molthrop v. State (1912)
1. —IiOeal Option—Sufficiency of the Evidence—Conflict. Where upon trial of a violation of the local option law, the evidence, although conflicting, sustained the conviction, there was no error. 2. —Same—Date. Where the date as to when prohibition was declared in force was immaterial, as the sale as alleged was made long thereafter, there was no error.
66 Tex. Crim. 548Eads v. State (1912)
Murder—Allusion to Defendant’s Failure to Testify. Wb£re a party fails to take the witness stand and testify in his own behalf, at a trial previous to the one at which the conviction occurs, it is reversible error on the part of the prqsecuting officer to allude to that fact. Following Richardson v. State, 33 Texas Crim. Rep., 518.
66 Tex. Crim. 549Hernandez v. State (1912)
1. —Burglary—Jurisdiction—Verdict. Where the purported judgment • does not give the verdict rendered, and it nowhere appears in the record, this .court has no jurisdiction. 2. —Nunc Pro Tunc—Judgment. A correct judgment may he rendered nunc pro tunc if, as a matter of fact, there is a verdict to support it.
66 Tex. Crim. 550Bowles v. State (1912)
The opinion states the case.
66 Tex. Crim. 551Summers v. State (1912)
The opinion states the case.
66 Tex. Crim. 567Lee v. State (1912)
1.—Disfiguring—Indictment—Means Used—Ejusdem Generis. Where defendant was charged with unlawfully making an assault upon his wife for the purpose of disfiguring her by means of carbolic acid, the contention that, applying the rule of ejusdem generis to the expression in the statute, “or other instrument,” carries with it the idea that it is such other instrument, and that the same must be of the same character or kind as the knife, is untenable. Following Ex parte Muekenfuss, 52 Texas Crim. Rep., 467. 8.—Same—Indictment—Witnesses—Grand Jury. There was no error in not quashing the indictment because it was found by the grand jury without witnesses or testimony before them, upon which to predicate such finding. Following Kingsbury v. State, 37 Texas Crim. Rep., 259, and other cases. 3. —Same—Plea of Eormer Conviction—Practice. A plea of former conviction comes too late after the trial has been had, and must be made before the trial of the case on its merits. 4. —Same—Verdict—Certainty—Aggravated Assault. Where, upon trial of an assault to disfigure, the verdict found defendant guilty and assessed his punishment at two years imprisonment in the penitentiary, the contention, that inasmuch as the court submitted aggravated assault the verdict should have specified of which offense the conviction was had, is untenable, as the punishment for aggravated assault can not be imprisonment in the penitentiary. 5. —Same—Sufficiency of the Evidence. Where, upon trial of unlawfully making an assault for the purpose of disfiguring, etc., the evidence sustained the conviction, there was no error. [Rehearing denied June 28, 1912.—Reporter.]
66 Tex. Crim. 570Krummel v. State (1912)
The State’s testimony showed- that defendant was employed as a clerk by the prosecuting witness; that the latter saw him take some of the money which he received from sales in the store; that seventy-five dollars were found in possession of defendant, and that when he was accused of stealing the same he voluntarily confessed that he did so, but afterward contended that he received the money from his mother. This with the statement in the opinion is sufficient.
66 Tex. Crim. 572Waters v. State (1912)
1. —Assault to Murder—Indictment. Where the indictment, charging assault with- intent to murder, followed approved precedent there was no error. 2. —Same—Continuance—Want of Diligence—Testimony not Probably True. Where defendant’s application set out facts by which defendant expected to prove an alibi, but his testimony with reference thereto showed that the absent testimony was not true, and besides, the defendant did not use diligence, there was no error in overruling the motion. 3. —Same—Bill of Exception—Charge of Court. Where the bill of exceptions to the charge of the court was general in character and pointed out no grounds of objection, the same was insufficient. 4. —Same—Evidence—Principals—Charge of Court—Accessory. Where,- upon trial of assault to murder, defendant’s testimony was that he was not guilty of any offense, there was no error in admitting the testimony of the State which would make defendant a principal in the commission of the offense, and there was, therefore, no error in the court’s failure to submit the issues as to whether the defendant was an accessory or an accomplice, and in only presenting the law as to who are principals. 5. —Same—Charge of Court—Self-Defense—Alibi. Where defendant’s testimony would tend to show that he wa3 not present and did not participate in making the assault on prosecutor, and the State’s evidence showed the contrary, there was no error in the court’s failure to submit the law of self-defense, but simply to submit -the question of alibi. 6. —Same—Charge of Court as a Whole. Where, upon trial of assault to murder, the court instructed the jury that if they believed beyond a reasonable doubt that defendant yúth malice aforethought unlawfully and intentionally cut the prosecutor, and further found that the act did not constitute aggravated assault and simple assault, he would be guilty of assault to murder, there was no error, the court in another portion of his charge instructing the jury that if they had a reasonable doubt of defendant's guilt to acquit him, etc. Davidson, Presiding Judge, dissenting. 7. —Same—Charge of Court—Harmless Error. Where the error in the court’s charge, if error, could only ‘ result beneficially to defendant, he could not complain. 8. —Same—General Criticism—Charge of Court. Where the criticisms of the charge of the court are vague, indefinite and attempt to point out no error therein, the same can not be considered on appeal. 9. —Same—Misconduct of Jury—Affidavits—Presumption. Where the motion for new trial alleging misconduct of the jury was not supported by affidavit, and was contested by the State and overruled^ by the court, the presumption is in favor of the judgment of the court; besides, the testimony heard on the motion for new trial was not filed until long after the adjournment of court. 10. —Same—Statement of Pacts—Practice on Appeal. , Where a statement of facts is partly typewritten and partly written in pencil on both sides of the sheet, while erasures and interlineations are frequent, the same can not be considered on appeal. [Behearing denied May 1, 1912.—Beporter.]
66 Tex. Crim. 580Dowd v. State (1912)
The opinion states the case.
66 Tex. Crim. 582Remlinger v. State (1912)
The opinion states the case.
66 Tex. Crim. 583Vanderberg v. State (1912)
1. —Rape—Continuance Want of Diligence. Where, upon trial of rape, defendant’s application for continuance showed a want of diligence, and the absent testimony would only tend to impeach the State’s witness, there was no error in overruling same. A subpoena in another case is no .diligence. 2. —Same—Sufficiency of the Evidence. Where, upon trial of rape of a female under the age of consent, the evidence amply supported the conviction, there was no error.
66 Tex. Crim. 584Sheppard v. State (1912)
1. —Eorgery—Indictment—Grand Jury—Presumption. Where upon appeal from a conviction of forgery it appeared that appellant filed a motion to quash the indictment because the foreman of the grand jury was not a qualified voter, but said motion was not sworn to and no evidence was adduced on the motion, the presumption is that the juror was qualified. 2. —Same—Bill of Exceptions—Plea in Abatement. . Where the bill of exceptions failed to show what the answer of the witness would have been had he been permitted to answer, there was nothing to review on appeal; .besides, the proposed testimony if intended to sustain the plea to the indictment could not be offered during the trial of the case on its merits. 3. —Same—Evidence—Hearsay. Upon trial for forgery there was no error in excluding testimony as to what a witness heard another say. .4—Same—Bill of Exception. Where the answer of the witness to the question alleged to have been propounded is not «tated in the bill of exceptions, there is nothing to review on appeal. 5.—Same—Bill of Exception. In the absence of a bill of exceptions to the introduction of testimony the matter can not be reviewed on appeal.
66 Tex. Crim. 591Sain v. State (1912)
1. —Occupation—Intoxicating Liquors—Local Option—Charge of Court. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court failed to define in his charge what it took to constitute following the occupation of selling intoxicating liquors in local option territory, and instructed the jury that if the State proved two sales the jury should convict, there was reversible error. 2. —Same—Charge of Court—Reasonable Doubt—Weight of Evidence. Where the court charged in such a manner as that the burden of proof could have been shifted to the defendant, by using the language, “if you do not believe defendant,” etc., the same was an improper application of the reasonable doubt which was used at the close of the charge.
66 Tex. Crim. 593Smith v. State (1912)
1. —Murder—Continuance—Improbability of Attendance. Where, upon trial of murder, it appeared from defendant’s third application for continuance that there did not seem to be any probability of securing the attendance of the absent witness, even though the case had been postponed or continued, there was no error in overruling the application. 2. —Same—Evidence—Constitutional Daw—Confronting Witnesses. The constitutional provision that a defendant is entitled to be confronted with the witnesses against him does not apply when the witness who has testified is dead, beyond the jurisdiction of the court, insane or is kept away by the wrongful acts of the defendant, in this event the testimony of such witness can be reproduced. Following Robertson v. State, 63 Texas Crim. Rep., 216; but it is the defendant alone who can raise the question of admissibility of testimony on this constitutional ground. 3. —Same—Evidence—Dispositions—Stenographic Notes. The use of the word “deposition” as used in our code has the same meaning as is given that word by the common law, and embraces testimony of a witness at a former trial of the case, and includes stenographic notes in a proper case. 4. —Same—Evidence—Stenographer's Record—Reproduction of Testimony. Where, upon trial of murder, -the defendant showed that the absent witness could not be procured by due efforts made to procure his attendance, and that he was probably beyond the jurisdiction of the court, and the court overruled his application for a postponement or a continuance of the case, whereupon the defendant offered in evidence the stenographer’s record of the testimony of the said absent' witness at a previous trial which had been approved by the court and the counsel of both parties, and which was material to the defense, the same was admissible in evidence within the rules of law admitting the testimony or deposition of an absent witness; there being no constitutional inhibition to do so, and due diligence having been used to secure the attendance of said witness. 5. —Same—Buies of Evidence—Absent Witness’ Testimony. The courts are organized for the purpose of arriving at the truth of any and all controverted issues, and the rules of evidence are and should be so construed as to accomplish that purpose, keeping in view always that the best evidence obtainable must be adduced; and where a witness who had testified under the sanction of an oath and was subject to cross-examination, has moved away permanently, and his whereabouts can not be ascertained after diligent search and inquiry such testimony is admissible upon a subsequent trial in behalf of the defendant. 6. —Same—Evidence—Bias of Witness. Upon trial of murder the father of the deceased should have been required to answer that since the killing of his son he had attempted to shoot defendant, the witness not claiming his exemption to incriminate himself. 7. —Same—Charge of Court—Self-Defense. Where, upon trial of murder, the evidence did not show that the father of the deceased did any act or was guilty of any conduct at the time of the shooting which could or would lead defendant to believe his life was in danger, it was unnecessary in the court’s charge on self-defense to submit this matter further than it was done. 8. —Same—Charge of Court—Eight of Possession. Where, upon trial for murder, the evidence showed that the defendant was not in actual possession of the barn about which the difficulty arose, there was no error in the court’s failure to submit defendant’s right to defend his possession of said barn, although defendant may have believed he was entitled to such possession, yet he could not legally take such possession by force. 9. —Same—Right of Self-Defense. See opinion for a state of facts which would not deprive defendant of the right to defend against an attack on him by the deceased.
66 Tex. Crim. 602Collins v. State (1912)
1. —Assault to Rape—Sufficiency of the Evidence. Where, upon trial of assault with intent to commit rape, the evidence sustained the conviction, there was no error. 2. —Same—Continuance—Want of Diligence—Impeaching Testimony. Where defendant’s application for continuance showed a want of diligence, and the absent testimony was of an impeaching character there was no error in overruling the same. 3. —Same—Misconduct of Jury—Impeaching Verdict. Where, upon trial of assault to rape, some of the jurors sought to impeach their verdict, because they had acted on the suggestion that it was mot necessary for defendant to have the specific intent-to rape, but the court’s charge properly submitted this question, and aJso aggravated assault, there was no error; besides jurors will noifc be permitted to impeach their verdict by testifying that they misunderstood the charge of the court. 4. —Same—Evidence—Supporting Testimony. Where, upon trial of assault to rape, the defendant sought to impeach the testimony of prosecutrix, there was no error in permitting the State to show that she had made the same statement before trial. 5. —Same—Evidence—Bill of Exceptions. Where, upon appeal from a conviction of assault to rape, the bill of exceptions failed to show what answer the defendant made to the question propounded to him by the State, the matter could not be reviewed. 6. —Same—Argument of Counsel. Where, upon trial of assault to rape, the record showed that the argument of State’s counsel was in reply to remarks of defendant’s counsel, there was no error. 7. —Same—Charge of Court—Eorce—Female under Age of Consent. Upon trial of assault with intent to rape, where the evidence showed that the alleged female was under age of consent at the time of the assault, there was no error in refusing a requested charge in regard to the amount of force necessary to establish the specific intent to rape. 8. —Same—Argument of Counsel. Where the court instructed the jury not to consider the remarks of State’s counsel, and there was no charge requested to withdraw the same and they were not of such character as would present reversible error, there was no error. 9. —Same—Charge of Court—Assault. Where the court required the jury to find beyond a reasonable doubt certain facts to be true, which in law would amount to an assault—upon trial of assault to rape upon a female under the age of consent—before they could convict, it was immaterial whether the court gave the definition of assault. [Rehearing denied June 26, 1912.—Reporter.]
66 Tex. Crim. 611Bird v. State (1912)
1.—Keeping Gambling Table—Continuance. Where the count in the indictment upon which the continuance was sought was not submitted, and the whereabouts of the witness was unknown, and under the- evidence the absent witness could hardly have testified as alleged, there was no error in overruling the motion. 2. —Same—Evidence—Moral Turpitude—Disorderly House. A disorderly house as defined by article 496, Penal Code, would render one adjudged guilty of such an offense, guilty of an offense involving moral turpitude. 3. —Same—Billiard Table—Gaming Table. Under article 553, Revised Penal Code, a billiard or pool table if used for gaming is contemplated by said statute following. Stearnes v. State, 21 Texas, 692, and otter cases. 4. —Same—Rule Stated—Table. It is not literally the table on which the game is played that gives character and designation of a gaming table, but it is rather from the character of the game which is played that it receives its specific designation. 5. —Same—Charge of Court—Definition of Gaming Table. Where the court charged, that the characteristics of a gaming table, such as the law forbids the keeping and exhibiting of for the purposes of gaming, were first, that it must be a game; second, that it must have a keeper or exhibitor; third, that it must he based upon the principle of the one against the many; that the keeper or exhibitor must be against all the bettors directly or indirectly; fourth, that it must be kept or exhibited for the purpose of obtaining bettors, and fifth, that the test as a gaming table is, was the game played a game of the one against the many, the definition was correct. 6. —Same—Charge of Court—Gaming Table—Playing Craps. Thete are two ways of betting at the game of craps: the common, or ordinary game, where the players bet with each other, and the other, Where a man keeps and exhibits the game and all players bet with him, and where there was a conflict of testimony, upon trial of keeping and exhibiting a gaming table, as to whether defendant merely engaged in a game of craps with others, or whether he was keeping and exhibiting a crap game where he took all the bets, and the court in liis charge clearly drew the distinction, there was no error. 7. —Same—Sufficiency of the Evidence. Where, upon trial of unlawfully keeping and exhibiting for the purpose of gaming a gaming table, the great weight of the evidence showed that defendant did not himself throw or shoot in his turn at the game of craps, hut those betting at the game did all the shooting and throwing, and he took all the bets, this would make defendant the keeper and exhibitor of a gaming table, and the conviction was sustained. Following Stearnes v. State, supra. Davidson, Presiding Judge, dissenting. 8. —Same—Evidence—Date of Offense. Where, upon trial of unlawfully beeping and exhibiting for the purpose of gaming, a gaming table, the State’s witness was not positive whether the transaction occurred prior or subsequent to the date the indictment was returned, but the State showed that it occured during the time local option was in force, and that this was prior to the díate of-the return of the indictment, there was no error. 9. —Same—Description of Room—Evidence. Where, upon trial of keeping and exhibiting for the purpose of gaming a gaming table, the State’’s witness described the room where the gambling took place as one adjoining a pool room, and that at one end was a counter or bar where intoxicants were dispensed, and in a corner was the billard or pool table upon which the game was played, and the whole -scene was so interwoven and intermingled that a description of one could not have been given without the other, there was no error. 10. —Same—Charge of Court. Where the court’s charge, and the charge given at the request of defendant fully covered every phase of the case, there was no error in refusing other requested charges. 11. —Same—Precedent—Former Decisions. Where defendant was charged with keeping and exhibiting for the purpose of gaming a gaming table, and the evidence showed that defendant stood behind the table and took all the bets, etc., the conviction was sustained, and he was not guilty of playing at the game but was correctly prosecuted under Article 553, Revised Penal Code. Distinguishing Vinsen v. State, 58 Texas Crim. Rep., 47; Askey v. State, 20 Texas Crim. App., 443. Qualifying Chappell v. State, 27 Texas Crim. App., 312. Approving Bell v. State, 32 Texas Crim. Rep., 191. Overruling Whitney v. State, 10 Texas Crim. App., 377. Davidson, Presiding Judge, dissenting. 12. —Same—Judicial Construction—Cases Reviewed. See Opinion for cases reviewed, distinguished, qualified, overruled and approved. 13. —Same—Distinction Between Banking Game and Gaming-Table. The distinction drawn between a banking game and exhibiting a gaming table is, that where the player bets or- pikes at the exhibitor’s game and does not participate in the dealing or playing, it is a banking game; if the player in addition to betting or piking at the game also deals or participates in playing the game it is a gaming table. Following Stearnes v. State, 21 Texas, 698. Davidson, Presiding Judge, dissenting. 14. —Same—Case Stated—Sufficiency of the Evidence. Where, upon trial of unlawfully keeping and exhibiting for the purpose of gaming a gaming table, the evidence showed that the players at a game called craps threw the dice, and the defendant, the exhibitor did not throw dice, but only exhibited the table and took the bets it was a gaming table, and the conviction is sustained. Davidson, Presiding Judge, dissenting.
66 Tex. Crim. 627Blue v. State (1912)
1.—Murder—Charge of Court—Manslaughter. Whére, 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. 2. —Same—Case Stated—Manslaughter not Raised by Evidence. Where, upon trial of murder, the evidence showed premeditation on part of defendant to kill the deceased, and that he killed him without provocation, and defendant pleaded self-defense, there was no error in the court’s failure to submit a charge on manslaughter. 3. —Same—Rule Stated. It is now elementary in this State that if a ease is either murder or perfect self-defense, it is not erro-r to fail to charge on manslaughter. Following Alexander v. State, 63 Texas Crim. Rep., 102, and other eases. 4. —Same—Evidence—Discretion of Court. Where, upon tidal of murder, the witness having already testified that a certain party had no gun, there was no error in sustaining the State’s objection to a repetition of this matter. 5. —Same—Evidence—Res Gestae. Upon trial of murder, -there was no error in sustaining an objection to testimony as to what defendant told the justice of the peace, eiomie time after the killing, as this was not res gestae. 6. —Same—Evidence—Declaration of Third Parties. Upon trial of murder, there was no error in sustaining objections to certain testimony as to the declaration of a child after the killing to the effect that some one shot at defendant. 7. —Same—Charge of Court—Self-Defense. Where, upon triol of murder, the court submitted the proper charge on self-defense, there was no error. 8. —Same—General Objections. Where the -objections to the court’s charge were of a general character, the same could not he considered on appeal. Following Berg v. State, 64 Texas Crim. Rep., 612. 9. —Same—Sufficiency of the Evidence—Charge of Court. Where, upon trial of murder, the defendant was convicted of murder in the second degree, and the court properly submitted the law of the ease as applicable to the facts which sustained the conviction, there was no error.
66 Tex. Crim. 636Sephes v. State (1912)
The opinion states the case.
66 Tex. Crim. 638Giles v. State (1912)
1. —Slandering Female—Continuance—Want of Diligence. Where, upon trial of slandering a female, the application for continuance alleged that ever since defendant had. been charged with the offense he had been trying to ascertain the whereabouts of the absent witness, but did not allege what efforts he had made, and the record showed that said witness might have been obtained before the conclusion of the trial by proper diligence, and did not show that a subpoena was ever issued for said witness, there was no error in overruling the motion for continuance. 2. —Same—Rule Stated. A continuance is properly refused where there is a want of diligence. Following O’Neal v. State, 14 Texas Crim. App., 582, and other cases. 3. —Same—Premature Application. If the application is prematurely made and under circumstances tending to show that, by the use of ordinary diligence between the date of the affidavit and the trial, the grounds of the application might have been obviated by the defendant, it is unquestionably insufficient. Fallowing Buntain v. State, 15 Texas Crim. App., 515 and other eases. 4. —Same—Mere Affirmation. The mere affirmation of diligence in an application for continuance does not suffice; the facts must be stated. Following Henderson v. State, 5 Texas Crim. App., 134 and other cases. 5. —Same—Testimony Not Probably True. Where the absent testimony would not probably have been true, there was no error in overruling the motion for continuance. 6. —Same—Jury and Jury Law—Bill of Exceptions. Where the qualification of the hill showed that the jurar, who was objected to because he was a friend of one of the State’s witnesses, said he could give defendant a fair and impartial trial, and the bill of exception did not show that the jui'or whom defendant was afterwards compelled to accept was in any way disqualified, there was no reversible error. 7.—Same—Charge of Court—Bill of Exceptions. Where the defendant in his motion for a new trial did not point out the reason why his requested charges were not submitted by the court, and took no bills of exception to the court’s charge, there was no error. Following Berg v. State, 64 Texas Crim. Rep., 612. 8. —Same—Charge of Court—Misdemeanor. In misdemeanor cases, the only way this court is authorized to consider complaints of the charge of the court, and the refusal of special requested charges, is by bill of exceptions taken at the time. Following Hobbs v. State, 7 Texas Crim. App., 118, and other cases. 9. —Same—Sufficiency of the Evidence. Where, upon trial of slandering a female the evidence was sufficient to sustain the conviction, there was no error. 10. —Same—Continuance—Want of Diligence. No new rule is established in-holding that where defendant’s application for continuance was overruled and the trial was not concluded until three days thereafter and, that defendant made no effort during that time to procure the attendance of the alleged absent witness who could have been secured by reasonable diligence, there was no error. 11. —Same—Practice on Appeal—Whole Record Reviewed. In reviewing the overruling of an application for continuance, it has been the universal rule to consider in connection therewith the whole record and the whole statement of facts. 12. —Same—Discretion of Court—Statutes Construed. The Statute, article 608, Code Criminal Procedure, subdivision 6, expressly provides that the truth of the application, as well as the merit of the grounds set forth therein and its sufficiency, shall be addressed to the sound discretion of the court, and shall not be granted as a matter of right. 13. —Same—Motion for New Trial. The statute also expressly provides that, where an application for continuance has been overruled and the defendant convicted, a new trial shall be granted if it appear that the evidence of.the absent witness was of a material character and that the facts set forth in said application are probably true. Hollowing Mitchell v. State, 36 Texas Crim, Rep., 299. 14. —Same—Diligence—Onus on Defendant. It must appear tnat all the means provided by law were resorted to by defendant to obtain the absent testimony, and it is not imeumbent on the State to show a want of diligence in opposition to a continuance, and the application must in itself be complete to require this court to say that it was erroneously refused, and the onus is on the defendant. 15. —Same—Case Stated—Want of Diligence. Where the record showed that by proper inquiry at the proper time for the absent witness, defendant -would have gained information in ample time to have secured the attendance of the absent witness; but that defendant did not see- to it that process was issued and placed in the hands of the proper officer, there was no error in overruling his motion for continuance, and the eases cited by de- • fendant do not show that he used sufficient diligence. 16. —Same—Due Diligence— Process Must be Placed in Hands of Officer. It is the duty of defendant to see that the clerk promptly issues the process and that it is placed in the hands of the proper officer, and that that officer actually and promptly executes the process or shows by his return that it can not be done, and it is not sufficient to make application to the clerk to issue process without further diligence to see that the same is issued and executed. 17. —Same—Motion for New Trial—Affidavits—Case Stated. Where the defendant in his motion for new -trial failed to procure the affidavit of the absent witness, and to show that the absent witness would testify as alleged in the application for continuance, and it appeared from the record on appeal that the absent witness would not have sworn to what the application claimed he would have sworn to, and if he had that his testimony would probably not have been true, and that it would not have changed the result of the trial, there was no error in overruling the motion for new trial.
66 Tex. Crim. 651Kidwell v. State (1912)
Tried below before the Hon. G. E. Cowan. Appeal from a conviction of unlawfully selling and giving intoxicating liquors to minor, etc.; penalty, a fine of $25. The opinion states the case.
66 Tex. Crim. 653Jennings v. State (1912)
The opinion states the case.
66 Tex. Crim. 654Polk v. State (1912)
Adultery—Name Alleged in Indictment—Variance. Where, upon trial of adultery, the indictment alleged that defendant lived together in adultery with Cozett Tutt, a woman, etc., and the evidence showed that the said woman was known by that name as well as Oozetta Tutt and Cozebta Houston, there was no variance between the allegation and proof.
66 Tex. Crim. 656Lancaster v. State (1912)
The opinion states the case.
66 Tex. Crim. 659Davis v. State (1912)
Tried below before the Hon. W. B. Powell. Appeal from a conviction of theft; penalty, a fine of $25, and twenty days confinement in the county jail. The opinion states the case.
66 Tex. Crim. 662Williams v. State (1912)
Appeal from the County Court of Johnson. Tried below before the Hon. J. B. Haynes. Appeal -from a conviction of keeping a disorderly house in which spirituous, etc., liquors were kept for sale, etc.; penalty, a fine of $200, and twenty days confinement in the county jail. The following statement of the Assistant Attorney-General is sub-, stahtially correct: Appellant was the keeper of a small grocery establishment in which he sold, among other things, cold drinks, etc., and had therein a large ice box in which he kept ice. One W. B. Feather-stone, county attorney of Johnson County, went to the store of appellant and into the back room, which was usually kept .closed. He discovered two men in the back room, each of whom had a bottle of beer, drinking the same. He tried to take the beer from one of them but failed. He then sent for the sheriff and they found a cask of beer in the building and some other intoxicating liquors. Appellant stated to the said Featherstone that the beer belonged to his stepson and was not his beer. One of the parties who had the bottles of beer testified that the beer they were drinking was not purchased or obtained from appellant, but was brought from Fort Worth by them. It was shown by appellant that he had dominoe tables in bis back room and that parties frequently played dominoes there, but he also testified that he never sold any kind of intoxicating liquors. The State offered proof to show that his place' bore the reputation of being a place where intoxicating liquors were sold.
66 Tex. Crim. 664Green v. State (1912)
Tried below before the Hon. W. F. Whitehurst. Appeal from a conviction of a' violation of the pure food law; penalty, a fine of $25. The testimony for the State was that the fruit of defendant, consisting of grape, etc., was exposed to flies and dust, and was not fit to be sold, etc.
66 Tex. Crim. 665Stiles v. State (1912)
1.—Unlawfully Practicing Medicine—Indictment. Where, upon tri&l of unlawfully practicing medicine under article 751 to 756 inclusive, Penal Code, there was no error in overruling a motion to quash because the indictment did not allege the county of the residence of defendant and the failure to register certificate or license in said county; as such allegation is only required under article 750, Penal Code. Distinguishing Lock-hart v. State, 58 Texas Crim. Rep., 80, and other cases. 2.—Same—Sufficiency of the Evidence. Where, upon trial for unlawfully practicing medicine, etc., without diploma, etc., the evidence sustained the conviction there was no error. -3.—Same—Charge of Court—Date of Offense—Carving. Where the information showed that the State did not carve and charged that the offense was committed on about the 1st day of September, 1911, and tiie court charged the jury that they were authorized to convict the defendant upon transactions occuring prior to said date within the period of limitation, there was no error, although each day of such illegal practice was a separate offense. Poliowing Novy v. State, 62 Texas Crim. Rep., 492, and other cases.