67 Tex. Crim.

Volume 67 — Texas Criminal Reports

131 opinions

67 Tex. Crim. 1Johnson v. State (1912)
The opinion states the case.
67 Tex. Crim. 4Watts v. State (1912)
Carrying Pistol—Evidence—Convict—Pardon. Where, upon trial of unlawfully carrying a pistol, material testimony was admitted by a witness who was an unpardioned convict for felony there was reversible error. Article 782, Code Criminal Procedure.
67 Tex. Crim. 5Foster v. State (1912)
1. —Aggravated Assault—Recognizance. Where the appeal was dismissed for a defective recognizance, but a new recognizance as provided by law was filed the appeal was reinstated. 2. —Same—Bill of Exceptions. In the absence of a bill of exceptions, objections to the admissibility of testimony can not be considered on appeal. 3. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the defendant was convicted of aggravated assault, an objection to the court’s refusal to give charges relating to manslaughter will not be considered on appeal. 4. —Same—Self-Defense—Charge of Court. Where, upon trial for murder, the defendant was convicted of aggravated assault and the evidence showed that defendant first struck the deceased in self-defense, the court should have submitted the question of defendant’s right to continue to act in self-defense as long as it reasonably appeared to him to be necessary, and if he ceased to so act as soon as he learned that the necessity had ceased to acquit the defendant. 5. —Same—Charge of Court—Deadly Weapon. Where the evidence showed that deceased fired with a pistol and that then defendant struck her, the court should have charged article 676, Penal Code.
67 Tex. Crim. 8Burman v. State (1912)
1. —Murder—Manslaughter—Charge of Court—First Meeting. Where the evidence, with reference to insulting conduct to defendant’s wife by deceased, showed that the killing took place after the first meeting of the parties, but also showed that there was such conduct subsequent to said first meeting, the court perhaps properly submitted the issue of manslaughter; yet appellant’s conduct seemed to suggest that he was cool and collected at the time he shot the deceased. 2. —Same—Evidence—Manslaughter—Rebuttal. Where, upon trial of murder, the defendant sought to reduce the killing to manslaughter by introducing testimony as to the statement, acts and conduct of deceased, to show that the latter was the moving cause of the separation between defendant and his wife, there was no error to permit the State to introduce acts and conduct of deceased which would tend to show that -he was not the cause of such separation. 3. —Same—Evidence—Conversation—Ill-Feeling. Where, upon trial of murder, everything said about the defendant hy deceased was admitted in evidence to show the state of feelings of deceased towards the defendant, the fact that deceased desired an abortion to be produced upon his daughter would add no strength to his statement that he would rather that she had a child by the coalest black negro in the State than one by defendant, and there was no error in excluding this statement. 4. —Same—Argument of Counsel. Where the argument of State’s Counsel was made to the court, and not to the jury, and no special charge was requested to withdraw it, there was no reversible error. 5. —Same—Evidence—Irrelevant Testimony. On trial for murder, where the defendant sought to show that the deceased wias the cause of the separation between the defendant and his wife, and the court had admitted the declaration of deceased that he was glad defendant’s wife (Ms daughter) had come home and he was never gladder of anything in Ms life and he wanted to get -a divorce for her as quick as he could, there was no error in excluding Ms additional statement that he was willing to marry as a pure business matter (the deceased being a widower). 6. —Same—Self-Serving Statements. Upon trial of murder, there was no error in excluding testimony giving the reasons why defendant mistreated his wife, as this was self-serving, the State not being permitted to show any such mistreatment. 7. —Same—Evidence—Bias of Witness. On trial of murder, there was no error in asking defendant's witness if the uncle of defendant had not given her a pair of shoes, to show the bias of the witness. 8. —Same—Charge of Court—Apparent Banger. Where, upon .trial of murder, the court had given a full charge on the question of threats and apparent danger, there was no error in refusing a special charge that if deceased was about to make an attack on defendant it would be Wholly immaterial that defendant was in no danger from such an attack, as such a charge was misleading. 9. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the court in his charge on manslaughter submitted the law as applicable to the evidence more favorable than the refused special charge, there was no error. 10. —Same—Threats—Charge of Court—Self-Defense. Where, upon trial of murder, the evidence was that the deceased bad made serious threats against the life of the defendant which were communicated to the latter, there was no error in refusing a special charge that it was not necessary for the jury that such threats were seriously made. 11. —Same—Sufficiency of the Evidence—Manslaughter. Where, upon trial of murder, it was extremely doubtful whether the testimony raised the issue of manslaughter, but the court nevertheless submitted that issue together with all the law applicable to the facts, and the evidence sustained the conviction, there was no error. 12. —Same—Adequate Cause—Manslaughter. Even if adequate cause exists, the mind must be affected in a way to render it incapable of cool reflection, or manslaughter is not in the case.
67 Tex. Crim. 15Compton v. State (1912)
1. —Robbery—Bill of Exceptions—Practice on Appeal. Where the bill of exceptions was to the overruling of the motion for new trial, which presented several distinct grounds, the motion for new trial and not the bill of exceptions will he reviewed. 2. —Same—Indictment—Words and Phrases. Where, upon trial of robbery of two persons at the same time, the word “respectfully” instead of the word “respectively” was used in referring to the persons robbed, there was no error, the indictment being otherwise sufficient. 3. —Same—Representation by Counsel—Bill of Exceptions. Where, upon appeal from a conviction of robbery, appellant complained that he was young and inexperienced and had been denied counsel, but the record showed that the court had offered to appoint counsel, etc., and defendant refused, there was no error; besides there was no bill of exceptions. 4. —Same—Separate Offenses—Election by State. Where defendant was charged with committing robbery upon two persons at the same time, and the record showed on appeal that the robbery of both persons was one continued transaction, and in effect the same transaction, and no objection was made to the introduction of any of the testimony, and no motion was made to require the State to elect, and the verdict being general, there was no error; especially where the defendant received the lowest penalty. 5. —Same—Verdict. Where the indictment charged -the defendant with robbery of two persons at the same time, and the verdict of the jury found the defendant guilty and assessed his penalty at five years in the penitentiary, the verdict was sufficient. 6. —Same—Charge of Court. Upon trial of robbery of two persons at the same time, the court correctly charged that the jury must find that the robbery was committed upon both persons but that the property taken was the property of each of them. Following Clark v. State, 28 Texas Grim. Aipp., 189.
67 Tex. Crim. 19Brown v. State (1912)
The opinion states the case.
67 Tex. Crim. 24Lawson v. State (1912)
The opinion states the case.
67 Tex. Crim. 27Smith v. State (1912)
The opinion states the case.
67 Tex. Crim. 32Baldwin v. State (1912)
1. —Assault to Murder—Sufficiency of the Evidence. Where, upon trial of assault to murder, the evidence was sufficient to sustain the conviction, there was no error. 2. —Same—Charge of Court—Drunkenness—Intent. Upon trial of assault to murder, there was no error in the failure of the court’s charge to authorize the jury to consider evidence of drunkenness in determining whether or not he specific intent to kill existed at the time of the commission of tire offense. . 3. —Same—Intoxication—Temporary Insanity—Mitigation—Punishment. Neither intoxication nor temporary insanity produced by the voluntary recent use of ardent spirits, is any excuse for the commission of crime, or can mitigate the degree of the offense, hut may be introduced in mitigation of the punishment.
67 Tex. Crim. 33Lockett v. State (1912)
The opinion states the case.
67 Tex. Crim. 34Lee v. State (1912)
The opinion states the case.
67 Tex. Crim. 35Evans v. State (1912)
The opinion states the case.
67 Tex. Crim. 37Simpson v. State (1912)
The opinion states the case.
67 Tex. Crim. 38Clark v. State (1912)
1. —Assault to Murder—Continuance. In the absence of a statement of facts, the overruling of an application for continuance can not he considered on appeal. 2. —Same—Evidence—Leading Questions. Where the answer to the question to the witness is not stated-in the bill of exception, the question that it was leading can not be considered on appeal. 3. —Same—Evidence—Practice on Appeal. Where the defendant objected to certain testimony which objections were sustained by the court, there was nothing to review on appeal. 4. —Same—Evidence—Bias of Witness. Where, upon trial of assault with intent to murder, the court admitted testimony as to the bias of the prosecuting witness, there was no ' error in sustaining objections by the State, where the witness was asked to testify to the same matter. 5.—Same—Evidence—Accepting Bill of Exceptions. Where the bill of exceptions was refused by the court with the statement thla* no such ruling was made, and the defendant accepted the bill as qualified there was nothing to be reviewed.
67 Tex. Crim. 41Teague v. State (1912)
1. —Murder—Continuance—Practice on Appeal. The recital in the judgment that a continuance was refused and that defendant excepted will not supply the place of a specific bill of exceptions, and this court will not consider same. Following Gaston v. State, 11 Texas Grim. Rep., 143, and other cases. 2. —Same—Special Venire—Motion to Quash—Practice on Appeal. Where, upon appeal, there appeared in the record a motion to quash the special venire, but no evidence to sustain the grounds alleged in the motion for new trial, and there was no bill of exceptions reserved to the action of the court in overruling the same, the matter can not be reviewed. Following Sharp v. State, 6 Texas Grim. Rep., 657. 3. —Same—Peremptory Challenges—Bill of Exceptions. In the absence of a bill of exceptions, the objection that defendant was required to exhaust his peremptory challenges, and that he should have been granted additional challenges can not be reviewed. 4. —Same—Bill of Exceptions. In the absence of bills of exception to the admission and exclusion of evidence, the matter can not be reviewed on appeal. 5. —Same—Charge of Court—Manslaughter—Ground of Objection. Where defendant’s ground of objection in his motion for new trial is that the court erred in his charge to the jury in failing to submit manslaughter, etc., and points out no error in the charge of the court the same is insufficient to present any matter for review. Following Quintana v. State, 29 Texas Grim. App., 401, and other cases. Davidson, Presiding Judge, dissenting. 6. —Insult to Female Relative—Charge of Court. Where, upon trial of murder, the evidence slightly raised the issue of manslaughter with reference to insulting conduct to a female relative, but also showed that defendant’s estimate of said relative was such that he must have known that the alleged statement upon which he was presumed to act was true, this would not reduce the grade of offense to manslaughter, and there was no error in the court’s failure to charge thereon; especially when considered under article 723, Code Criminal Procedure. Davidson, Presiding Judge, dissenting. 7. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained a conviction of murder in the first degree, the same will not be disturbed on appeal. 8. —Same—Argument of Counsel. Where the grounds of objection to the remarks of the district attorney are not verified by any bill of exceptions, the same can not be considered on appeal. 9. —Same—Requested Charges. A ground of objection that the court erred in refusing the several special charges requested by defendant is too general to be reviewed on appeal.
67 Tex. Crim. 46Dugat v. State (1912)
The opinion states the case.
67 Tex. Crim. 60Jaramillo v. State (1912)
The State’s testimony shows that the defendant conducted a general mercantile establishment, and had several persons working for him; that at different times in the year 1911, drunken men had been seen and arrested in and about his store; that the sheriff with a search warrant for the search of intoxicating liquors found a barrel of wine in said store about two-thirds full, also a barrel of eider, and a large quantity of beer and whisky on the defendant’s premises; that the…
67 Tex. Crim. 63King v. State (1912)
The State’s testimony showed that the chief prosecuting witness, VoIImar, after selling his cotton in the town of Seguin on the evening of September 3, 1910, started home in his wagon drawn by two mules, and having 'the money he received for his cotton in his purse in his pocket, but when he got to the outskirts of-town he was hailed by the defendant and his companion who asked him if they could ride in his wagon to a certain place, and that the witness told them to get in;…
67 Tex. Crim. 67Craft v. State (1912)
1. —Occupation—Soliciting Orders—Intoxicating liquors—local Option—Constitutional law. Where the constitutionality of the legislative Act, punishing the taking of orders for intoxicating liquors without license, etc., has been sustained in former decisions of this court, said question will not be further considered. Following Edmanson v. State, 64 Texas Crim. Rep., 413. 2. —Same—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling and offering for sale by taking orders therefor intoxicating liquors, without license in local option territory, the evidence sustained the conviction there was no error. 3. —Same—Constitutional law—Interstate Commerce. The legislative Act making it unlawful to engage in, pursue and follow the occupation and business of selling and offering for sale, by taking orders therefor, Intoxicating liquors, without license is not violative of the Federal Constitution and is not an interference with interstate commerce. 4. —Same—Sale—Meaning of Terms-Judicial Construction. The contention of appellant that this becomes a sale in the prohibited territory and that said legislative Act is therefore void is not sound, as the sale in such instance takes place at "the point of shipping where the order is filled, and not where the order is taken, and the Legislature in using the word sale did so with the knowledge of the meaning this court has placed thereon. [Rehearing denied June 5, 1912.—Reporter.]
67 Tex. Crim. 69Meeking v. State (1912)
Carrying Pistol—Motion for New Trial—Want of Criminal Intent. Where defendant in his motion for new trial alleged that he had plead guilty of carrying a pistol because he feared further prosecution of theft of a pistol, and further showed that he never owned a pistol, but that he found the one for which he was arrested and carried it home, and that it was the one for which he and the officer had been looking after a negro had thrown it away and had been arrested for carrying same, a new trial should have been granted.
67 Tex. Crim. 71Green v. State (1912)
Burglary—Charge of Court—Presumption. In the absence of a statement of facts, complaints as to the charge of the court and refusal to give special charges can not be considered, and it must be presumed that the charge of the court was applicable to the facts under the allegations of the indictment. [Rehearing denied June 5, 1912.—Reporter.]
67 Tex. Crim. 72Kelly v. State (1912)
Tried below before the Hon. J. M. Pearson. Appeal from a conviction of burglary; penalty, two years imprisonment' in the penitentiary. .
67 Tex. Crim. 79Robinson v. State (1912)
1. —Robbery—Indictment—Violence—Force. Where, upon trial of robbery, the indictment alleged that the defendant with force and arms in the county and state aforesaid, did unlawfully and willfully by using and exhibiting a firearm, to wit, a pistol, fraudulently take from the person and possession and without the consent and against the will (naming the party injured and describing the property taken) with the fraudulent intent then and there, etc., the same was sufficient in alleging that the robbery was effected by violence. Davidson, Presiding Judge, dissenting. 2. —Same—Rile Stated—Words and Phrases—Statutes Construed. It is not necessary to use the indentical language of the statute, if words of similar import and meaning are used, and where the indictment used the words “with force and arms,” the indictment must be held to charge that the offense was committed by force, in a prosecution for robbery, under article 1327, Revised Penal Code. Davidson, Presiding Judge, dissenting. 3. —Same—Force—Violence—Words and Phrases. Under article 1327, Revised Penal Code, providing that if any person by assault, or violence, etc., shall fraudulently take, etc., an indictment which alleged that the defendant with force and arms did unlawfully and wilfully by using and exhibiting a firearm, to wit a pistol, did fraudulently take, etc., is equivalent to the word “violence” as used in said statute. Davidson, Presiding Judge, dissenting. Distinguishing Green v. State, recently decided; Bond v. State, 20 Texas Crim. App., 436. 4. —Same—Statute Construed—Words and Phrases. While under article 460, Code Criminal Procedure, the words “with force and arms” are not necessary to the validity of an indictment, still they are not meaningless when they are used, and when used, the indictment must be held in connection with other allegations to charge that the offense was committed by force, and is equivalent to the statutory meaning of the word violence as used in article 1327, Revised Penal Code. Davidson, Presiding Judge, dissenting. 5. —Same—Case Stated—Assault—Violence. Robbery may be committed by violence whether accompanied by an assault or not, and where the indictment charged that defendant with force and arms fraudulently took from the person and possession and without the consent and against the will of the party injured certain property, the same is sufficient although the word of the statute, “violence” is not used. Davidson, Presiding Judge, dissenting. , 6. —Same—Separate Offense—Statutes Construed. ' Under article 1327, Revised Penal Code, three separate and distinct modes are provided by which the offense of robbery may be committed; first, by assault; second, by violence; and third, by putting in fear of life or bodily injury, whether connected and accompanied or not by either of the other two modes, and when, the indictment charged one of these modes the same is sufficient. Following Tones v. State, 48 Texas Grim. Rep., 369, and other cases.
67 Tex. Crim. 87Rainer v. State (1912)
1. —Murder—Declarations by Defendant—Res Gestae. Where, upon trial of murder, it appeared that the defendant made a declaration some fifteen or twenty minutes after the killing, to the effect that the officer should go down to the scene of the killing and see whether defendant’s wife was dead and that if she was he would be satisfied, etc., and it was an issue in the case whether defendant had intended to kill his stepson or his wife, and everything indicated that defendant’s mind was not detracted from the occurrence at the time and his statement was spontaneous and not broken by any intervening occurrence and was free and voluntary, there was no error in admitting same as a part of the res gestae. Following McKinney v. State, 40 Texas Grim. Rep., 374, and other cases. 2. —Same—Evidence—Confession. Where defendant’s confessions were in conformity with the statute, there was no error in admitting the same in evidence. 3. —Same—Charge of Court. Where, upon trial of murder, the defendant contended that in trying to kill his stepson he killed his wife by mistake, and the court submitted this issue in a proper charge to the jury, and the evidence sustained the conviction of the defendant for the murder of his wife, there was no error.
67 Tex. Crim. 93Cruz v. State (1912)
The opinion states the case.
67 Tex. Crim. 93Ex Parte Mitchell (1912)
Habeas Corpus—Ball—Felony. Where it appeared that relator had been indicted in two felony cases for which his bond had been fixed at $750 each, and other complaints were filed against him charging him with felony, a bond of $500 in each case is considered reasonable and proper.
67 Tex. Crim. 95Johnson v. State (1912)
Appeal from the District Court of McLennan. Tried below before • the Hon. Bichard I. Munroe. Appeal from a conviction of robbery; penalty, fifteen years imprisonment in the penitentiary. The testimony for the State shows that the prosecuting witness was on his way home, on the night alleged in the indictment, and as he was coming by the church was accosted by some one sitting near the church wall, and two others who commanded him to hold up his hands or they would kill him; that witness raised both hands and the parties took his watch, pistol and purse from him and told him to get; that there was a street car coming about that time and witness stepped out to try to stop the car, and there was a shot fired, etc. The State witness believed defendant was one of the robbers. The written confession of defendant was introduced in evidence and corroborated by other testimony.
67 Tex. Crim. 96Cooper v. State (1912)
The opinion states the case.
67 Tex. Crim. 98Simms v. State (1912)
1. —Assault to Murder—Evidence—Clothing. Where the issue in the case was as to how close prosecuting witness was to defendant when the shots were fired, there was no error in admitting testimony that the clothing worn by prosecuting witness a.t the time were not powder burned. 2. —Same—Evidence—Character of Wound. Where, upon trial of assault to murder, the attending physician bad testified to the nature and character of the wound inflicted upon prosecuting witness, there was no error in admitting testimony that the prosecutor after he was shot turned his horse loose, believing that it would go home. 3. —Same—Bills of Exception. Where the bills of exceptions did not state any grounds of objection why the testimony was rejected, the siame can not be considered on appeal. 4. —Same—Sufficiency of the Evidence—Motive—Malice. It has been uniformly held by this court, that in the absence of motive being shown, and the killing or shooting is without excuse or justification and unexplained, the law implies malice; and where the evidence showed no motive or explanation other than a wanton and wilful act without excuse or justification, the conviction was sustained, the court properly submitting the theory of the defense. 5. —Same—Rule Stated—Practice on Appeal. If there is evidence to support the finding of the jury, and there i& nothing in the record to cast a doubt on that evidence, other than that the evidence offered in behalf . f the defendant appealed strongly to the judgment of the Appellate Court, there is no reversible error. 6. —Same—Charge of Court—Theory of the Defense—Shooting to Scare. . If defendant, by some act or conduct of prosecutor, was not justified in shooting, if he shot at him to scare'him it would be a wilful and wanton act and an offense for Which he would be responsible, under article 51, Penal Code; and where the court aptly and tersely presented the defense upon trial of assault with intent to murder, the conviction of such offense was sustained.
67 Tex. Crim. 103Briscoe v. State (1912)
The opinion states the case.
67 Tex. Crim. 105Sewall v. State (1912)
1. —Murder—Special Venire—Oath of Officers. Where, upon trial of murder, it appeared from the record. on appeal that the officers who summoned additional jurors, after the jurors selected by the jury commissioners had been exhausted, were no", sworn to select such jurors as provided by article 3184, Revised Civil Statutes, the motion to quash the0venire should have been sustained. 2. —Same—Charge of Court—Negligent Homicide. Where, upon trial of murder, the State contended that the case was one of murder, and the defendant contended that the shooting was unintentional and a negligent killing, the court should have submitted the question of negligent homicide. 3. —Same—Change of Venue. Where the question is properly raised, the court should hear evidence upon the question of a change of venue. 4. —Same—Severance—Witnesses Indicted—Accessories. Where, upon motion of severance, the other parties being charged as accessories, the court was not in error in refusing to grant a severance, but if the witnesses were indicted to prevent them from testifying the court should see that no injury is done the defendant.
67 Tex. Crim. 108Irvin v. State (1912)
The State’s testimony showed that ill feeling existed between defendant and the deceased, growing out of their relations with a certain married woman; that on the night of the homicide all the parties were at a social function or supper; that after the supper the .said woman, Eoberta Green, together with the deceased, left in a buggy with the two infant children of said woman, and that after proceeding a while they were overtaken by the defendant, and that the latter rode up…
67 Tex. Crim. 113Sullivan v. State (1912)
Resisting Arrest—Information, In a prosecution for resisting arrest under a valid legal warrant where the information did not charge defendant with having committed any offense, and under article 238, Penal Code it being prerequisite to a violation of the law that the person shall resist a legal warrant of arrest, and under article 254, Penal Code it being provided what are the legal requisites of a warrant, the information was insufficient and a motion to quash should have been sustained.
67 Tex. Crim. 116Carver v. State (1911)
1. —Murder—Reputation of Deceased—Evidence—Charge of Court. Where, upon trial of murder, the defendant introduced some ten or twelve witnesses who testified that the reputation of deceased was that of a violent and dangerous man, and if he made a threat he was calculated to carry the same into execution, there was no error in not permitting the defendant to introduce additional testimony on that issue, there being no contest about it; neither did the court err in refusing a special charge relating to the weight to be given this testimony. 2. —Same—Evidence—Res Gestae—Statement of Deceased. Where, upon trial of murder, the deceased mia.de a statement to his physician, within a few minutes after lie was shot, and a.t the time he was suffering and bleeding from the wounds inflicted by the defendant, giving in detail his version of the difficulty, the same was admissible as a res gestae statement. Following Lewis v. State, 29 Texas Grim. App., 201, and other cases. 3. —Same—Evidence—Statement of Counsel. While it was improper for State’s counsel to make the statement that he would excuse a witness because the court had ruled out testimony of a similar kind, which was to show that a State’s witness whom defendant attempted to impeach had given the same testimony before the grand jury, and which was really admissible, there was no error. 4. —Same—Charge of Court—Self-Defense—Threats. Where, upon trial of murder, the court in his charge on self-defense as well as on manslaughter fully instructed the jury that they should take into consideration all therats communicated to defendant, and other facts and circumstances in evidence in passing on the state of defendant’s mind, there was no error in refusing special instructions on this theory of the ease. 5. —Same—Charge of Court—Uncommunicated Threats. Where, upon trial of murder, all the defense testimony showed an absolute assault, and sought to justify self-defense on an actual assault and apparent danger therefrom; the State’s witness denying such assault, there was no reversible error in the failure of the court to charge on uncommunicated threats to show who was the aggressor; the court fully submitting the question . of superior strength of and threats by deceased. 6. —Same—Charge of Court—Aggravated Assault. Where, upon trial of murder, the evidence showed that the knife used by defendant was a deadly weapon and that he killed deceased with malice, there was no error in the court’s failure to charge on aggravated assault. 7. —Same—Case Stated—Charge of Court. Where, upon trial of murder, the defendant was convicted of manslaughter, and the evidence showed that the defendant used abusive epithets towards deceased, who attacked defendant thereupon in his shirt sleeves, and did not attempt to draw a weapon but fought defendant with his fists and hand, and the court fully submitted threats by deceased, disparity of strength and size etc., there was no error, under article 723, Code Criminal Procedure. 8. —Same—Self-Defense—Provoking Difficulty—Imperfect Self-Defense. While one has a right to defend against any character of assault upon Mm, the law is different if one bring on the difficulty or is the aggressor, then he has only imperfect right of self-defense which will not justify but only reduce the grade of offense. 9. —Same—Rule Stated—Provoking Difficulty. Whenever a party, by his own wrongful acts, produces a condition of things wherein it becomes necessary for his own safety that be should take life or do serious bodily harm, then the law wisely imputes to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of offense, which but for such act, would never have been occasioned. Following King v. State, 13 Texas Crim. App., 283, and other cases. 10. —Same—Case Stated—No Self-Defense—Charge of Court. While it may be said to be an issue as to who struck the first blow, yet the State’s testimony showing that defendant made the first blow with a knife, following deceased up as he retreated,, the defendant admitting that he used and applied insulting language to deceased, striking deceased with a knife when the latter only struck with his hands • and continued to do so until deceased fell, there was no self-defense in the case, and it was immaterial whether the court presented the law as to uncommuni'cated threats, or refused additional testimony as to the dangerous disposition of deceased.
67 Tex. Crim. 137Lee v. State (1912)
The opinion states the case.
67 Tex. Crim. 149Burton v. State (1912)
1. —Murder—Practice in District Court—Motion for New Trial. Where, upon appeal from conviction of murder in the second degree, it appeared from the record that the motion for new trial was not sworn to, and there was no application praying for permission to file it, it not having been filed within two days after conviction, there was no error that the same was stricken from the record upon motion of the district attorney; there appearing no reasons why the same was not filed in time. However, notice of appeal having been given, bills of exception will be considered. 2. —Same—Charge of Court—Self-Defense—Possession of Property. Where, upon trial for murder, the evidence showed that the deceased was the owner of the horse about which the trouble arose and the homicide resulted, and that he had taken same from the wrongful possession of the defendant, there was no error in refusing a requested charge that the defendant had the right to pursue the deceased in an effort to recover possession of the horse, etc., and to shoot in self-defense; besides the issue of self-defense if raised at all was so slight that there was no error in court’s failure to charge on self-defense. Following Bishop v. State, 43 Texas, 390, and other cases. 3. —Same—Continuance—Want of Diligence. Where, upon trial for murder, the application for continuance showed a want of diligence, and there was no affidavit attached to the motion for new trial by the alleged witness that she would testify as alleged, and other witnesses testified to the same facts, there was no error in overruling the motion. 4. —Same—Evidence—Remarks of Counsel. Where defendant objected to the introduction of the witness on the ground that he was convicted of felony, and the objection was sustained, when defendant’s counsel remarked that he would have offered said witness if he had not known of the conviction, to which the district attorney replied that the witness would contradict one of defendant’s witnesses, there was no error; as defendant brought out the matter. 5. —Same—Evidence—General Reputation—Defendant as a Witness. Where defendant testified, there was no error in permitting the State to show that the general reputation of defendant was bad in the community where he lived. Following Huffman v. State, 28 Texas Grim. App., 177, and other cases. 6. —Same—Practice in the District Court. Where the issue bf self-defense was not raised by the evidence, there was no error that the court informed counsel for defendant, who were addressing the jury on the subject of self-defense, that the court would not submit that issue. 7. —Same—Sufficiency of the Evidence. Where, upon trial for murder, the court submitted the issues raised by the evidence, which sustained the conviction, there was no error. 8. —Same—Knowledge of Defendant—Charge of Court—Self-Defense. Where appellant claimed that the trial court erred in failing to submit the issue of self-defense because defendant had no legal right to the horse in question, and contended that defendant had no knowledge that deceased had any right to the horse, but the record showed that defendant did have such knowledge, there was no error in the court’s failure to submit the issue of self-defense.
67 Tex. Crim. 155Grant v. State (1912)
The opinion states the case.
67 Tex. Crim. 161Payne v. State (1912)
1. —Burglary—Evidence—Judgment—Codefendant—Witness. Where, upon trial of burglary, a codefendant was introduced as one of defendant’s witnesses who testified that he had been acquitted for a like offense, there was no error in not admitting in evidence the judgment of the court showing such acquittal; this motion being controverted and the testimony showing that he was the same person whom the chief State’s witness had identified with the defendant on the night of the burglary. 2. —Same—Evidence—Means Used—Collateral Eact. Where a State’s witness denied that she had identified a certain monkey-wrench found in the house which was burglarized as her property, and the testimony showed that the wrench Was the instrument that the burglar used in striking the chief State’s witness on the night of the burglary, and that the defendant was in the room that night where the officers pretended to said witness that they found the wrench, the same was not a collateral fact, but such testimony as was admissible in the first instance, and the defendant’s witness having denied the same there was no error in admitting testimony for her impeachment. 3. —Same—Rule Stated—Impeachment—Cross-Examination. While a witness can not be cross-examined as to any fact which if admitted would be collateral and wholly irrelevant to the matters in issue, for the purpose of contradicting him by other evidence, yet, where it may be proved as a part of the case it is not collateral and subject to impeachment. 4. —Same—Charge of Court—Actual Occupation of House. While it is true that under article 1314, Penal Code, the house must be actually used at the time of the burglary as a place of residence, yet it was not necessary in the court’s charge to use the word “actual,” as the evidence showed that the house was occupied and actually used by the inmates thereof, and therefore there was no reversible error under article 723, Code Criminal Procedure; the circumstance that the house was occupied as a residence at the time of the burglary having been also sufficiently submitted. 5. —Same—Charge of Court—Control and Ownership—Husband and Wife. Where, upon trial of burglary, the ownership of the house was alleged in the husband, and the evidence showed that notwithstanding the husband did not sleep therein all the time (it being his wife’s residence), but that he stayed at his daughter’s house as a matter of convenience in the conduct of his business, and that he stayed at his said wife’s residence whenever it suited him, Held, that he was in control of said house and there was no variance and the ownership was properly alleged. Article 457, Code Criminal Procedure. 6.—Same—Charge of Court—Alibi. Where, upon trial of burglary, the court charged upon the issue of alibi, there was no error in refusing special charges which were upon the weight of the evidence ; the court also charging on the presumption of innocence and the reasonable doubt. Following Jones v. State, 53 Texas Grim. Rep., 131. [Rehearing denied June 19, 1913.—Reporter.]
67 Tex. Crim. 170Robinson v. State (1912)
Tried below before the Hon. Richard I. Munroe. Appeal from a conviction of robbery; penalty, seventeen years inn prisonment in the penitentiary.
67 Tex. Crim. 171Ex Parte Campbell (1912)
From' Potter County. Original habeas corpus proceedings to fix bail, on complaint charging heMor with a violation of the local option law. The opinion states the case.
67 Tex. Crim. 173Ex Parte Creed (1912)
From Potter County. Original habeas corpus proceedings asking the Court oí Criminal Appeals to fix bail, after waiving examining trial before a justice of .the peace. The opinion states the case.
67 Tex. Crim. 175Kinney v. State (1912)
1.—Burglary—Former Acquittal—Name of Party Injured. Where defendant was indicted for burglary, with the intent to steal certain property belonging to A. J. Cariker, and filed his plea of former acquittal upon an indictment charging him with the burglary of the same house with intent to steal the property belonging to Tom Oariker, the court properly 'sustained a demurrer to the plea as the parties injured were not the same. Following Sineo v. State, 9 Texas Grim. Rep., 348, and other cases. 2. —Same—Continuance—Immaterial Testimony. Where the application for continuance did not show the materiality of the absent testimony, there was no error in overruling same. 3. —Same—Charge of Court—Definition of House. Where, upon trial for burglary, the evidence showed that the building entered consisted of a room in which hay had been stacked as high as the joists, making a partition of the room, and which room had a door at each end, there was no error in the court’s charge to define what constitutes a house as applicable to said evidence, and instructing the jury that if such hay constituted an obstruction reaching near the roof so as to make it necessary to climb or crawl over it in order to pass from one end of the room, to another, then each was a separate house. Following Anderson v. State, 17 Texas Grim. App., 309, and other cases. 4. —Same—Charge of Court—Occupant. Where, upon trial of burglary, the court instructed the jury that if the alleged owner or occupant had the key and exclusive right and means of entry then he would in law be the occupant, there was no error. 5. —Same—Requested Charges—Bill of Exceptions. Where the requested charges were fully covered by the main charge, except the one in regard to the remark of State’s counsel, but there was no exception reserved to said remarks, there was no error. 6. —Same—Misconduct of Jury—Statement of Facts. Where the evidence heard on motion for new trial on tlie ground of the misconduct of the jury was not filed until after the adjournment of the trial court, the same could not be considered on appeal; besides the alleged misconduct was not such as to present ground for "reversal. Following Probest v. State, 60 Texas Grim. Rep., 609; Barnes v. State, 61 Texas Grim. Rep., 37, and other cases. \ 7. —Same—Statement of Evidence—Practice on Appeal. Where appellant in Ms motion for rehearing criticised the statement contained in the opinion showing that defendant had used force in opening the door of the alleged burglarized house, hut the record bore out the court’s statement of the facts, there was no error. 8. —Same—Partition in Room. A partition in a room need not be a permanent partition, if it is there at the time of the commission of the offense, but where the evidence showed that the entry was made by force it would be burglary regardless as to tlie question of partition.
67 Tex. Crim. 181Overcash v. State (1912)
The opinion states the case.
67 Tex. Crim. 192Rippetoe v. State (1912)
1. —Murder—Evidence—Continuance—Bill of Exceptions. In the absence of a bill of exceptions to the overruling of a motion for continuance, the admission of testimony and a specific objection to the charge of the court, the same can not be considered on appeal. 2. —Same—Charge of Court—General Objection—Bill of Exceptions. Where no error is pointed out in the charge of the court the bill of exceptions is insufficient. Following Quintana v. State, 29 Texas Grim. App., 454. 3. —Same—Remarks by Judge—Weight of Testimony. Where, upon trial-of murder, the jury announced that they could not agree and asked to be discharged, whereupon the .court remarked to them that the case had to be settled by some twelve men; that he did not know of any twelve men who could do better than they could; that he thought they could settle it and ought to settle it and that the court wanted it settled; that the court would adjourn on the night of the next day but he could hold it in session till the business in hand was disposed of, there was no reversible error; there being nothing in the court’s statement which could be construed as an opinion on the merits of the case. 4. —Same—Sufficiency of the Evidence. Where, upon trial for murder, the defendant was convicted of manslaughter which was sustained by the evidence, there was no reversible error. [Rehearing denied June 19, 1912.—Reporter.]
67 Tex. Crim. 197Rhea v. State (1912)
1. —Murder—Continuance—Sick Witness. Where, upon trial for murder, the evidence showed that a knife was found near deceased which appellant testified deceased held in his hand while advancing on him, and deceased’s wife testified that she had never seen her husband with said knife, and defendant applied for a continuance on account of the absence of his wife who could not attend court on account of her advanced pregnancy, and the affidavit of the motion for new trial showed that the absent wife would have testified that the knife did not belong to defendant, and it appeared from the record that the deceased owned a knife, the motion for- continuance and new trial should have been granted. _ 2. —Same—Evidence—Motion for New Trial—Animus of Defendant. Where, upon trial for murder, a State’s witness testified as to a declaration by the defendant showing his animosity toward the deceased, and that the same was made in the presence of a witness who attached his affidavit to the motion for a, new triql and swore that no such statement was made in his presence, and the defendant had also denied making such statement, the motion for new trial should have been granted. 3. —Same—Motion, for New Trial. Where the wife of defendant attached her affidavit to the motion for new trial swearing that the knife found near deceased did not belong to her husband, and that the parties were on friendly terms, both of which facts the State’s testimony controverted, a new trial should have been granted, it being shown that the wife could not attend trial on account of sickness. 4. —Same—Charge of Court—Actual Attack. Where, upon trial for murder, the evidence showed an apparent attack by . the deceased upon the defendant, the court should have instructed the jury accordingly instead of charging upon actual attack. 5. —Same—Evidence—Declarations by Third Party. Where, upon trial for murder, the State showed that a certain statement was made in the presence of defendant just after the shooting, to which defendant made no reply, and the defendant denied hearing such statement, the court should have instructed the jury that if the defendant did not hear such remarks they would not consider same. 6. —Same—Depositions—Continuance—Temporary Disability of Witness. Where, upon trial of murder, the defendant applied for a continuance on account of the advanced pregnancy of his wife, who was an important witness, such was the correct practice, instead of procuring her depositions.
67 Tex. Crim. 201Menefee v. State (1912)
1.—Murder—Continuance—Misconduct of Jury—Practice on Appeal. Where, upon appeal from a conviction of murder, it appeared that the alleged reasons for a continuance and misconduct of the jury are not likely to occur upon another trial, the same need not be reviewed. 2. —Same—Change of Venue. This court disposes of the motion for change of venue with the statement that conditions may be different upon another trial, but if they should not be, a change of venue should be granted. 3. —Same—Charge of Court—Murder in the Second Degree—Circumstantial Evidence—Rule Stated. Before the trial court would be authorized to refuse a charge on murder in the second degree, the case being one of circumstantial evidence, the facts and circumstances must exclude murder in the second degree, and must further be of such cogent character as to constitute murder in the first degree to the exclusion of murder in the second degree. 4. —Same—Charge of Court—Case Stated. Where, upon trial of murder, the case was one of circumstantial evidence, and there was no testimony that the defendant was present at the time and place of the homicide, and the defendant’s testimony expressly excluded his presence, and there was no testimony as to the facts and circumstances at the time of the homicide whether the meeting of the parties was accidental, etc., it was reversible error not to have submitted a charge on murder in the second degree. 5. —Same—Charge of Court—Principals. Where, upon trial of murder, the court charged the jury that if defendant, acting together with another, killed deceased with malice aforethought he would be guilty of murder in the first degree, and did not define the law of principals, which required that defendant must have been present knowing the unlawful •intent, etc., the same was reversible error. 6. —Same—Charge of Court—Accomplice—Principals. • Where defendant was indicted as a principal, and there being evidence showing that he was not present at the homicide, this required a charge that the jury could not convict him as a principal under that state of case, although they might have believed him to be an accomplice or an accessory. In order to convict as a principal, the accused must be indicted as such and the evidence must sustain such indictment. 7. —Same1—Charge of Court—Principal—Statement Introduced by State. Where the language of the charge authorized the jury to convict whether defendant was present or not, and solely upon the ground that he may have been connected in some way with another in the killing, and the evidence excludes the fact that appellant did the killing but showed that another did it and the State proved this by such other person’s statement, the State is bound thereby and the court should have charged that defendant could not be convicted as a principal. 8. —Same—Evidence—Declarations of Third Parties. Upon trial of murder, it was reversible error to admit in evidence the declarations between third parties with reference to a clandestine meeting between the wife of the codefendant and another, there being no connection shown with defendant. 9. —Same—Evidence—Declarations of Third Parties. Upon trial of murder, a conversation occurring between the codefendant and third party, as to a message which the latter was to convey to the defendant but which was never communicated to him, was inadmissible. 10. —Same—Evidence—Attorney and Client—Confidential Communication. Upon trial of murder, communications between attorney and the defendant, in which the attorney gave him professional advice were inadmissible in evidence. 11. —Same—Evidence—Other Offenses. ■ Upon trial of murder, it was permissible to show defendant’s ill-will toward deceased for his attempted prosecution in regard to a certain alleged offense with which defendant was said to have been connected, but the details of such matter in regard to the birth of the alleged child and the acts of the parties were inadmissible. 12. —Same—Evidence—Extraneous Matters. Upon- trial of murder, where the State was permitted not only to show that certain extraneous matters had occurred which involved defendant and his possible ill-will against the deceased, but also to go into all the details and circumstances at great length, the same constituted error. 13. —Same—Discussion of Facts—Motion for Rehearing. Where the State filed a motion for rehearing in which it contended that this court was in error in stating the facts upon which it based its rulings in reversing the case, but the record bore out the statement of the court in the various matters assigned, there was no error, and the motion for rehearing is overruled.
67 Tex. Crim. 216Ex Parte Flake (1911)
From Johnson County. Original habeas corpus proceeding asking relief from arrest on an indictment charging the defendant with unlawfully pursuing' the business of keeping, maintaining and operating a cold storage where intoxicating liquors were kept, etc., in local option territory. The opinion states the case.
67 Tex. Crim. 251Harris v. State (1912)
The opinion states the case.
67 Tex. Crim. 273Warren v. State (1912)
1. —Forgery—Accomplice—Evidence—System. Upon trial of defendant as an accomplice to forgery, there was no error in admitting testimony that the party who was the principal in the forgery presented and had cashed, partly in merchandise and partly in cash the five checks which were alleged to have been forged by the principal by the aid and encouragement of the accomplice on trial, to prove the allegations in the indictment, and to show that the defendant was an accomplice to the forgery and to show the intent and system on the part of the defendant. Following Taylor v. State, 47 Texas Grim. Rep., 108, and other eases. 2. —Same—Evidence—Identity of Defendant—Bill of Exceptions. Upon trial of defendant as an accomplice to forgery, there was no error in admitting testimony that the principal to the forgery, who had testified against the defendant, was in this store with a young man the day before she passed the alleged forged check, although witness could not identify the man with said principal; besides the bill of exceptions was defective. 3. —Argument of Counsel. In the absence of a requested charge withdrawing the argument of State’s counsel, with reference to a certain letter written by the principal to the defendant and admitted in evidence, there was no reversible error. 4. —Same—Evidence—letter—Practice. Upon trial of forgery there was no error in permitting the jury in examining a certain letter written by the principal to the defendant accomplice and which was introduced in evidence, and to permit the jury to take same with them in their retirement. Following Fergurson v. State, 62 Texas Grim. Rep., 162. 5. —Same—Charge of Court—Words and Phrases. Where, upon trial of forgery, where defendant was indicted as an accomplice, and convicted upon the testimony of his principal corroborated by other testimony tending to connect him with the commission of the offense, there was no reversible error in the use of the words in the court’s charge that proof of the passing of such forged instrument would not be sufficient corroboration, when the charge is considered as a whole. 6. —Same—Charge of Court—Singling Out Testimony. Upon trial of forgery there was no error in refusing requested charges by which the defendant singled out certain specific testimony, and asked the jury not to consider same for the purpose of corroboration; besides the court’s main charge sufficiently submitted the matter of corroboration. 7. —Same—Charge of Court—Principal. Where the defendant was charged in the indictment as an accomplice to forgery, and the evidence sustained the allegation, there was no error in the court’s failure to charge the jury that if they believed that defendant was a principal to acquit him. 8. —Same—Corroboration—Sufficiency of the Evidence. Where the defendant was indicted as an accomplice to forgery, and his principal made out the offense completely against the defendant, and her testimony was corroborated by the testimony of other witnesses which tended to connect the defendant with the commission of the offense, the conviction is sustained. Following Nourse v. State, 2 Texas Grim. App., 216, and other cases. Davidson, Presiding Judge, dissenting. 9. —Same—Buie Stated. The corroborative evidence may be slight and entitled to but little consideration; nevertheless, the requirements of the statute are fully met if there be any corroborating evidence which of itself tends to connect the accused with the commissions of the offense. Following Nash v. State, 61 Texas Grim. Bep., 259, and other cases. Davidson, Presiding Judge, dissenting.- 10. —Same—Argument of Counsel. In order to entitle the defendant to a reversal because of improper argument by State’s counsel, he should promptly except to the same and request a special charge withdrawing same from the jury. 11. —Same—Corroboration. Where, upon trial of defendant as an accomplice to forgery, there was sufficient evidence other than that of the accomplice, tending to connect the defendant with the offense committed, there was no reversible error. Davidson, Presiding Judge, dissenting.
67 Tex. Crim. 287Williams v. State (1912)
1. —Murder—Evidence—Credibility of Witness. Where, upon trial of murder, the evidence showed that a State’s witness felt a deep interest in the case and was perhaps a biased witness, there was no error in asking said witness whether defendant had ever asked him to handle cattle belonging to his principal, to which he answered in the negative. 2. —Same—Evidence—Threats—Character of Deceased. Where the defendant had shown threats of deceased and that he was the character of man who would he likely to execute a threat when seriously made, there was no error in admitting testimony that the State’s witness had known deceased intimately and had never known him to carry a pistol. 3. —Same—Evidence—Motive. Upon trial .of murder, there was no error in admitting evidence that a herd of cattle that had belonged to defendant was driven inside of a certain pasture, and that deceased stopped the same "but when told that they belonged to another permitted him to water them, etc.; the trouble growing out of this matter and showing the motives of the parties in the events that happened subsequently to the conversation between defendant and deceased at that time. 4. —Same—Evidence—Acts and Declarations of Defendant. Upon trial of murder, there was no error in introducing testimony that immediately after the conversation between the defendant and deceased, about certain cattle, the defendant rode home, and saw his wife and brother, and that his wife told him where to get the gun and that they all three went to" the depot where the homicide occurred; and also the declaration which he made about that time. 5. —Same—Evidence—Conclusion of Witness. Where, upon trial of murder, it was shown that just before the homicide defendant’s brother and the deceased were fighting with ropes, there was no error in permitting a State’s witness to testify that defendant’s brother got the best of the fight; there being no injury shown to defendant. 6. —Same—Evidence—Irrelevant Matter. Upon trial of murder, there was no error in refusing to permit it to be shown that a witness in marrying the second time had married a woman of questionable virtue. 7. —Same—Evidence—Threats. Upon trial of miurder, there was no error in admitting testimony as to a threat made by defendant against the deceased. 8. —Same—Evidence—Threats. Upon trial of murder, where' defendant had testified to communicated threats by deceased against him, and the parties who so told him had not testified, there was no error in permitting the State to show that defendant knew that deceased did not associate with these men and that he would not likely have made the threats to them. 9. —Same—Evidence—Reputation—Truth and Veracity. Where the State had not offered to impeach the defendant, there was no error in excluding testimony to prove defendant’s reputation for truth and veracity. 10. —Same—Remarks by Judge. Upon trial of murder, where the remarks made by the judge during colloquies between himself and the defendant’s counsel were not made upon the weight of the testimony and did not indicate to the jury the court’s opinion of the merits of the case, there was no reversible error; however, the court should never permit himself to be drawn into a discussion of this character. 11. —Same—Remarks by Judge—Practice. Where it was not shown that the remarks of the court were such that they could have influenced the verdict of the jury in ruling on certain remarks made there by State’s counsel to the effect that the jury should not consider them it was not necessary to again instruct them thereon, there was no error; besides the bill of exceptions was defective. 12. —Same—Evidence—Impeachment. Where a State’s witness denied making a certain statement, and defendant introduced a witness that such a statement was made by said witness, there was no error in permitting the State to introduce the testimony of said witness at the examining trial to support his testimony in the trial; besides the bill of exceptions was defective. 13. —Same—Evidence—Conclusion of Witness. Where the question did not call for a conclusion of the witness with reference to the position of the parties at the time of the homicide, there was no error. 14. —Same—Remark by State’s Counsel. While the remark of State’s counsel to the effect that defendant’s brother, who was on the stand, was an extraordinary man, was improper, yet it was not reversible error. 15. —Same—Continuance—Remarks of Counsel, In the absence of a bill of exceptions to the overruling of an application for a continuance or to the remarks of the State’s counsel, the same can not be considered on appeal. 16. —Same—Charge of Court—Murder in Second Degree. Where defendant hau been acquitted at a former trial of murder in the first degree and tne court’s charge left the question for the jury to determine whether the evidence showed either express or implied malice and tl.at they could not convict except for murder in the second degree, there was no error. 17. —Same—Charge of Court—Manslaughter—Charge as a Whole. Where, upon trial of murder, the court’s charge on manslaughter with reference to the provocation was not conflicting, when read as a whole, there was no error. 18. —Same—Charge of Court—Provocation. Where the court instructed the jury that it was their duty to determine the adequacy of the provocation, instead of the adequacy of the cause of defendant’s passion, a criticism thereto is hypercritical. 19. —Same—Charge of Court—Enumerating Facts. Where the court’s charge on manslaughter sufficiently grouped the facts in evidence, and instructed the jury that they must consider all the facts and circumstances in the case in passing on the issue of manslaughter, there was no error. 20. —Same—Charge of Court—Cooling Time. Where, upon trial of murder, the evidence called for a charge on cooling time, which the court gave, there was no error. 21. —Same—Charge of Court—Adequate Cause. Where, upon trial of murder, the court’s charge in defining adequate cause when read in connection with the whole charge was not confusing or misleading, there was no error. 22. —Same—Charge of Court—Words and Phrases. Where the court in his charge on manslaughter used the words “bear in mind the foregoing definitions, etc.,” the same was not confusing or misleading. 23. —Same—Charge of Court—Self-Defense—Words and Phrases. Where, upon trial of murder, the court in his charge on self-defense used the words “imminent and pressing danger” there was no error under the evidence 'of the ease, the court instructing the jury that they must view the case from the standpoint of the defendant; neither was there error to place the right of self-defense upon necessity or apparent necessity. 24. —Same—Charge of Court—Threat. Where, upon trial of murder, the evidence showed threats by deceased against the defendant, and the court instructed the jury that if they believed from the evidence that threats had been made by deceased to take the life of the defendant and that defendant honestly believed the information of such threats, and that deceased by some act then done, word spoken or demonstration made manifest an intention to execute the threats, defendant would have the right to kill and to acquit in that event, there was no error. Distinguishing Tillery v. State, 24 Texas Grim. App., 271." 25. —Same—Charge of Court—Evidence—Special Charges. While perhaps there are some verbal inaccuracies in the charge of the court, and the court made remarks to counsel which he should not have made, yet taking' the" case as a whole no illegal evidence was admitted and the charge of the court as a whole correctly submitted the law on the issues, there was no error; and the complaint that the special charges were refused presents no error. 26. —Same—Evidence—Impeachment. Where the effort was made to prove that the testimony was a fabrication, there was no error in permitting the State to show that this testimony was given at a time when such motives did not exist with the witness. Following Jones v. State, 38 Texas Grim. Rep., 103. 27. —Same—Evidence—Husband and Wife. Where the State did not offer the wife of defendant as a witness, but simply showed by other testimony that she had told the defendant where to get the gun and that she and defendant’s brother rode direct to the place where the deceased was and the difficulty occurred in which the latter was killed by defendant, showing a preconceived killing, there was no error. .Following Smith v. State, 48 Texas Crim. Rep., 235. 28.—Same—Evidence—Motive. Upon trial of murder, there was no error in showing that certain cattle held by the defendant at a certain pasture were watered at a lake over the objections of the deceased; the evidence showing that the whole trouble between defendant and deceased grew out of matters connected with a certain cattle range, etc.
67 Tex. Crim. 305Garlington v. State (1912)
Tried below before the Hon. T. B. Smith. Appeal from a conviction of intimidation; penalty, a fine of $25.
67 Tex. Crim. 307Rembert v. State (1912)
Murder—Charge of Court—Murder in Second Degree—Manslaughter—Self-Defense. Where, upon trial of murder, the case was submitted to the jury upon facts not borne out by the record, and upon issues not suggested by the testimony, there was reversible error.
67 Tex. Crim. 311Clayton v. State (1912)
1. —Murder—Charge of Court—Sufficiency of the Evidence. Where, upon trial of murder, the court charged murder in the first and second degree, manslaughter and self-defense, and there was no complaint thereto, and the evidence sustained the conviction of murder in the second degree, there was no error. 2. —Same—Evidence—Divorce—Judgment. Where, upon trial of murder, the evidence showed that the woman about whom the homicide occurred was the former wife of defendant from whom she had been divorced, there was no error in admitting in evidence the decree of divorce in her favor, there being other evidence to the same effect; besides the bill of exceptions was insufficient as the objections were too general and did not point out any error. Distinguishing Dunagain v. State, 38 Texas Grim. Rep., 614. 3. —Same—Evidence—Bill of Exceptions. Where, upon trial of murder, the defendant on cross-examination denied that he had been convicted of a felony, etc., and the State’s counsel asked him how long it had been, to which defendant objected and was sustained by the court, •there was no error; besides the bill was insufficient in not pointing out the objections raised to the question. Following Huggins v. State, 60 Texas Grim. Rep.; 215, and other cases. 4. —Same—Argument of Counsel. Where, upon trial of murder, the bill of exception to the argument of counsel, with reference to the divorce about which there was some evidence in the record, did not show any such injury to the rights of defendant as would justify the reversal of the ease, there was no error. See opinion as to latitude in argument of counsel. 5. —Same—Rule Stated. Unless the bill of exceptions shows that the remarks objected to are obviously of a nature to impair the rights of defendant, and prejudice his case before the jury, such remarks though improper will not be considered cause for reversal, unless a charge was asked and refused and exceptions reserved at the time. Following Hatchell v. State, 47 Texas Grim. Rep., 385, and other cases. 6. —Same—Case Stated. Where, upon trial of murder, the evidence showed the acts and conduct of defendant concerning the worn an who was formerly his wife, and that she had obtained a divorce from him upon some statutory ground, and defendant sought to reduce the homicide to manslaughter on account of the relations of deceased to defendant’s said former wife, there was no reversible error in permitting State’s counsel in discussing this testimony, and the character of defendant in this behalf. 7. —Same—Evidence—Judgment—Notice. Where, upon trial of murder, the State introduced in evidence a judgment of divorce which was obtained by a woman about whom the homicide arose in the same court in which defendant was tried for murder, there was no error under article 2306, Revised Civil Statutes, and no notice, or the filing thereof with the record in the criminal ease was necessary. Article 784, Revised Code, Criminal Procedure.
67 Tex. Crim. 320Anderson v. State (1912)
The opinion states the case.
67 Tex. Crim. 325Gaines v. State (1912)
1. —Murder—Charge of Court—Manslaughter—Self-Defense. While the evidence may have justified the court in submitting murder in the second degree, yet the evidence on the part of the defense clearly raises the issue of manslaughter and self-defense, and the court should have submitted a charge on this phase of the case. 2. —Same—Insult to Female Relative. Where, upon trial of murder, there was evidence that the deceased was trying to take away defendant’s mistress who was under his protection and care at the time, and defendant interceded for ■ her at the time the deceased was killed, the court should have submitted this matter as adequate cause upon the issue of manslaughter. 3. —Same—Adequate Cause—Pain or Bloodshed. Where, upon trial of murder, there was evidence that defendant was attacked and stabbed in the back with a knife and this caused pain or bloodshed, the court should have submitted the issue of manslaughter. 4. —Same—Charge of Court—Self-Defense. Where, upon trial of murder, there was evidence that others began shooting at defendant and that the deceased was killed while he stepped in between the parties, this phase of the case should have been submitted. 5. —Same—Charge of Court—Provocation. Where, upon trial for murder, the court in his charge on manslaughter entirely omitted the evidence with reference to a blow inflicting pain or' bloodshed, and failed to instruct the jury with reference to the conduct of deceased towards defendant’s mistress, the same was reversible error. 6.—Same—Female Relative—Mistress. Where, upon trial of murder, the evidence showed the woman about whom the trouble arose was living with the defendant as his mistress at the time; that she was cooking for him and occupied all relations as if she were his wife, this under the statute placed her under his protection, and the statute with reference to an insult to a female relative applied and should have' been given in the court’s charge on manslaughter.
67 Tex. Crim. 333Hughes v. State (1912)
1. —Intoxicating Liquors—Express Record—Inspection—Local Option—Information—Reasonable—Words and Phrases. Where, upon trial of refusing to let the county officials examine the express records pertaining to the shipment of intoxicant liquors, etc., the information alleged that on and about 3 o’clock in the afternoon, on the said date, the same being within the office hours of said express company, at its said office, etc., did then and there unlawfully refuse to permit B to inspect a certain book above mentioned, etc., the same was sufficient although the word reasonable as used in the statute was omitted. Articles 448, 449, 462, Code Criminal Procedure, Davidson, Presiding Judge, dissenting. 2. —Same—Charge of Court—Misdemeanor Cases. Where, upon trial of refusing to permit the examination of express records pertaining to the shipment of intoxicating liquors, etc., no bills of exception were taken to the refusal of the court to submit requested charges, there was no error; the offense being a misdemeanor. 3. —Same—Argument of Counsel—Discretion of Court. Under article 704, Code Criminal Procedure, the question of the regulation, order and length of argument of counsel is within the sound discretion of the trial court, and where no injury was shown in the court’s action in limiting the argument of counsel to thirty minutes on each side, in a misdemeanor case, there was no reversible error. 4. —Same—Ignorance of the Law. Under article 14, Penal Code, ignorance of the law is no defense to a prosecution under the Act of August 19, 1910, governing the examination of express records pertaining to the shipment of intoxicating liquors, etc. 5. —Same—Absence of Trial Judge. Where, upon appeal from a conviction of a misdemeanor, the record showed that counsel for both parties agreed that the trial judge might retire from the bench to write his charge, and that in the event he was needed they would send for him; that soon after he was sent for and passed upon the matter submitted to him and -again started to retire, when counsel for the defendant requested him to remain and the court replied that he had already- agreed to his leaving and then left to finish his charge, when some controversy arose as to the testimony during the judge’s absence whereupon he shortly returned and delivered his charge to the jury. Held, that no injury being shown and the lowest penalty inflicted, and the bill of exceptions being defective, there was no reversible error. Davidson, Presiding Judge, dissenting. 6. —Same—Evidence—Letter. Upon trial of refusing to let the county officials examine the express records pertaining to the shipment of intoxicating liquors, etc., there was no error in not admitting in evidence defendant’s letter to the sheriff, which was written the next day after the offense was committed, and which invited the officials to examine the express records. Davidson, Presiding Judge, dissenting. 7. —Same—Constitutional Law—Bill of Rights—Searches and Seizures—Police Regulation. The Act of the Thirty-First Legislature approved August 19, 1910, concerning the inspection of express records, etc., is not in violation of the Bill of Eights, section 9 of the Constitution of Texas, and is a due exercise by the Legislature of its police power. Davidson, Presiding Judge, dissenting. 8. —Same—Absence of Trial Judge. While even the temporary absence from the court room of the trial judge, pending a trial, is not sanctioned, yet where no possible injury occurred to the rights of the defendant and none could have occurred, a temporary absence of the judge is not cause for reversal. Davidson, Presiding Judge, dissenting. 9. —Same—Evidence—Letter—Self-Serving Declaration. Where, upon trial of refusing to permit the county officials to examine the express records pertaining to the shipment of intoxicating liquors in local option territory, the defendant offered in evidence his letter to the sheriff written the next day after he had committed the offense, inviting him to examine said records, there was no error in excluding same; besides the contents of said letter were orally in evidence. Davidson, Presiding Judge, dissenting.
67 Tex. Crim. 355Vines v. State (1912)
1. —Murder—Evidence—Motive. Upon trial of murder there was no error in admitting testimony that defendant was charged with crime in another county, had escaped and resisted arrest, to show motive in slaying deceased, who was an officer. 2. —Same—Evidence—Pistol Used. Where, upon trial of murder, there was some question as to the identity of the person who did the killing, there was no error in introducing evidence as to the character of pistol defendant wore, and showing that it was of the same caliber as the pistol with which the homicide was committed. 3. —Same—Evidence—location of Wound. Upon trial of murder, there was no error in permitting the undertaker to testify as to the point of entrance and the exit of the ball, he showing familiarity with wounds of that character. 4. —Same—Evidence—Bill of Exceptions—Change of Venue. In the absmee of a bill of exceptions to the court’s ruling on evidence, and the order overruling the application for change of venue the same can not be considered on appeal.. 5. —Same—Jury and Jury Law—Race Discrimination—Challenge. In the absence of a bill of exceptions, and there being no evidence in the record, the question as to race discrimination in the jury, and challenge thereto can not be considered on appeal. 6. —Same—Charge of Court—General Objections. Where the objections to the court’s charge are of a general character, and do not point out the errors, the same can not be considered on appeal. 7. —Same—Sufficiency of the Evidence—Charge of Court—Self-Defense. Where, upon trial of murder, it was doubtful whether the evidence raised the issue of self-defense, but the court nevertheless submitted a charge thereon, and the evidence was sufficient to sustain a conviction of murder in the first degree, assessing the death penalty, there was no error. [Rehearing denied June 28, 1912.—Reporter.]
67 Tex. Crim. 360Savage v. State (1912)
1. —Scire Facias—Certificate of Affirmance. Where the transcript, in a scire facias case, appealed from the court below, was not filed in the Appellate Court within ninety days from the perfecting of the appeal as required under article 1015, Revised Civil Statutes, the same will be affirmed on certificate. 2. —Same—Want of Diligence. Where -the appellant made no effort to file the transcript within the time required by law, and showed no diligence or sufficient reason for not having done so, the case must be affirmed on certificate under the requirements of article 1016, Revised Civil Statutes.
67 Tex. Crim. 363Howell v. State (1912)
The opinion states the case.
67 Tex. Crim. 364Atkinson v. State (1912)
The opinion states the case.
67 Tex. Crim. 369Ex Parte Wilson, Jr. (1912)
1.—Insanity—Habeas Corpus—Bond—Statutes Construed. While it appears that there are no express statutory provisions as to what shall be done with a person accused of crime when he has been adjudged insane, under article 39, Penal Code, before conviction, yet in such cases articles 1023 and 1025, Code Criminal Procedure, when construed in the light of article 120, Revised Civil Statutes, should be followed, at least in substance and spirit, and such person should be restrained and treated in one of the insane asylums and not allowed bail as provided under article 140, Revised Civil Statutes, but should be returned to the court having jurisdiction of the offense when he recovers sanity; and this should be the proceeding even where the case is bailable and bail has been granted. 2. —Same—Case Stated—Restraint of Accused Before Trial—Insane Asylum, Where, upon appeal from habeas corpus proceedings, it appeared from the record that the appellant was indicted for murder; that he had made an application to the District Court after such indictment that he was insane at that time asking suspension of a trial, whereupon said court tried him for insanity and the jury found him insane, whereupon he was committed to the custody of the sheriff subject to the further order of the county judge, who committed him for restraint and treatment to the insane asylum, there was no error in the court’s ruling in recommitting relator to said asylum and denying him bond under article 140, Revised Civil Statutes. 3. —Same—Future Legislation. See opinion as to future legislation, and as to policy of keeping relator confined in an insane asylum for treatment.
67 Tex. Crim. 374Redman v. State (1911)
The opinion states the case.
67 Tex. Crim. 420Maxwell v. State (1912)
The opinion states the case.
67 Tex. Crim. 423Harris v. State (1912)
1. —Murder—Evidence—Impeaching Own Witness. Where, upon trial of murder, the State claimed that defendant had killed deceased with a stick of wood, etc., and the defendant’s witness had testified that another person and not the defendant struck the deceased the fatal blow with a chair, and the State on cross-examination elicited the fact that witness saw-defendant throw something toward the deceased using the expression, “Now God damn you take that,” it was reversible error not to permit the defendant to show by the examining trial testimony that this witness had not testified to this latter fact at the examining trial, for the purpose of impeaching her on the theory that the witness had testified to an injurious fact against him in the face of her previous testimony given at the examining trial. 2. —Same—Rule Stated—Impeachment. The defendant has the right, even where he places a witness on the stand, to expect the witness to testify upon his trial as he had testified upon a former trial, and where the witness had testified to an injurious fact against him he has the right to impeach the witness in regard thereto, and this whether the witness became a State’s witness or not. 3. —Same—Evidence—Convict—Pardon—Record of Conviction. Where, upon trial of murder, the State on preliminary examination proved by defendant’s witness that he had been previously convicted of felony, the defendant had the right under the circumstances to have the record of conviction produced before the witness could be disqualified, and it was error not to permit the defendant to have -the witness testify to a material fact in his defense. Following White v. State, 33 Texas Grim. Rep., 177. 4.—Same—Misconduct of Jury. Where the judgment is reversed and the cause remanded upon other questions, the misconduct of the jury need not be considered. 5.—Same—Charge of Court—Aggravated Assault—Deadly Weapon. Where, upon trial of murder, the State contended that the defendant killed the deceased with a stick of wood about six to ten inches long and two or three inches thick by throwing it at him and strilcng him on the head, and there was no evidence that this stick of wood was a deadly weapon or that defendant struck deceased with the intention to kill him, it was reversible error not to submit a charge on aggravated assault.
67 Tex. Crim. 429Madison v. State (1912)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained the conviction, there was no error. 2. —Same—Continuance—Want of Diligence. Where the defendant based his continuance on the subpoena issued by the State, and the record showed that neither the State nor the defendant used proper diligence to secure the absent witness, there was no error in overruling the motion.
67 Tex. Crim. 431Douglas v. State (1912)
The opinion states the case.
67 Tex. Crim. 432Gibson v. State (1912)
The State’s testimony shows that the defendant, in company with two other negroes, entered the prosecutor’s store, and that the defendant offered to buy a pair of pants from prosecutor and gave him a check for $14.35 in payment thereof; that this check was payable to Sam Jackson on the American Exchange National Bank of Dallas, and was signed Al Poe; that defendant said he was Sam Jackson and had been working for Poe, and when asked by prosecutor what his boss did, answered…
67 Tex. Crim. 434Parker v. State (1912)
The opinion states the case.
67 Tex. Crim. 438Loggins v. State (1912)
1. —Mortgaged Property—Continuance—Impeachment. Where, upon trial of fraudulently disposing of mortgaged property, the absent testimony was of an impeaching character, and the same kind of testimony was introduced on trial, and the same was not probably true, there was no error in overruling the motion for continuance. 2. —Same—Charge of Court—Defensive Theory. Where, upon trial of fraudulently disposing of mortgaged property, there was some evidence that the prosecutor had agreed with defendant to release the lien upon the alleged property, and the court in a proper charge submitted this theory of the case and instructed the jury to acquit the defendant in the event of a reasonable doubt that defendant believed such release to have been made, there was no error. 3. —Same—Charge of Court—Completed Trade. Where, upon trial of fraudulently disposing of mortgaged property, there was no question that the trade between defendant and prosecutor and the agreement to give a mortgage on the alleged property was completed, there was no error in the court’s failure to submit this issue.
67 Tex. Crim. 441Johnson v. State (1912)
The opinion states the case.
67 Tex. Crim. 448Penton v. State (1912)
1,—Murder—Charge of Court—Aggravated Assault—Instrument Used. Where, upon trial of murder, the defendant had been found guilty of manslaughter and a new trial was granted, and he was again tried for manslaughter, and the evidence showed that he killed deceased with an axe and pleaded self-defense, there was no error in the court’s failure to charge on aggravated assault. 2. —Same—Evidence—Declarations of Third Parties. Where, upon trial of manslaughter, there was no suggestion that anyone else was engaged in the difficulty other than defendant and deceased, a remark made by some one to the effect that if he had been given the pistol he would have gotten him, made subsequent to the difficulty, was inadmissible. 3. —Same—Charge of Court—Self-Defense—Conjunctive. Where the court in his charge on self-defense instructed the jury that if deceased had done some act which alone or by words accompanying the act, etc., the complaint that the court had used the conjunctive was untenable; besides the court submitted the requested charges and there was no error. 4. —Same—Charge of Court—Motive. Where the court upon the request of the defendant limited the purpose of the testimony with reference to the motive of the killing, there was no error in refusing additional instructions thereon. 5. —Same—Sufficiency of the Evidence. Where, upon trial of manslaughter, on an indictment for murder, the evidence sustained the conviction of manslaughter, under a proper charge of the court, there was no error.
67 Tex. Crim. 451Snodgrass v. State (1912)
1. —Burglary—Indictment. While it is better practice to allege, whether the burglary was committed in daytime or night-time, such allegation is not essential to the sufficiency of the indictment. Following Conoly v. State, 2 Texas Crim. App., 412, and other cases. 2. —Same—Private Residence—Night-time—Baytime—Separate Offense. Where a private residence is burglariously entered in the daytime, the punishment is the same as for any other ordinary burglary; it is only where the burglary of a private residence is committed in the night-time that it is made a separate and distinct offense. 3. —Same—Date of Offense1—Defendant’s Declaration. Where, upon trial of burglary, the State introduced defendant’s statement that he entered the house to get something to eat, etc., there was no error in permitting the State to show that such statement was false, and in fixing the date of the burglary to show another burglary at night, the court properly limiting the testimony of the other burglary. Following Wyatt v. State, 55 Texas Crim. Rep., 74, and other cases. 4. —Same—Charge of Court—Force—Requested Charge. Where, upon trial of burglary, the court properly defined the offense and that the entry must be made with actual force, etc., with the specific intent to commit theft, and refused a requested charge to acquit defendant if the intent to steal was conceived after he entered the house, there was no error, as this issue was not raised by the evidence.
67 Tex. Crim. 453Sanchez v. State (1912)
1. —Murder—Evidence—Photographs. Upon trial of murder, there was no error in introducing in evidence photographs taken at the scene of the homicide the next morning, showing the position of the buggy and the dead body of the deceased therein, and such environments as were included in the picture, as the same threw light upon the transaction. 2. —Same—Evidence—Pistol Found. Where testimony had been introduced showing that defendant admitted that he gave a pistol to a third party after the shooting, there was no error in introduoing testimony that a pistol was found at the barn of the deceased which was sufficiently identified as that used by the defendant. 3. —Same—Charge of Court—Self-Defense—Relative Strength of Parties. A charge with reference to the relative strength of the parties, their character and. disposition, etc., should never be given except where the facts call for it, and where, upon trial of murder, the facts did not call for such a charge it should not have been given, 4.—Same—Charge of Court—Self-Defense—Statutes Construed—Confessions. Where, upon trial of murder, the written confessions of the defendant showed that deceased made an attack on him with an open knife saying that he and. defendant were going to have it tonight, the court should have given hi charge the statutory provision of article 1105, Revised Criminal Code, with reference to the acts or words of deceased; as the State was bound by said written confessions unless they were disproved, and a general charge on the subject of self-defense was not sufficient under the evidence.
67 Tex. Crim. 459Davis v. State (1912)
The opinion states the case.
67 Tex. Crim. 460Slack v. State (1912)
The opinion states the case.
67 Tex. Crim. 463Clanton v. State (1912)
The opinion states the case.
67 Tex. Crim. 464Crossly v. State (1912)
Burglary—Evidence—Codefendant. Where the codefendant pleaded guilty, the statement in his confession of guilty can not exonorate the defendant and was not competent testimony.
67 Tex. Crim. 465Thomas v. State (1912)
The opinion states the case.
67 Tex. Crim. 466Collins v. State (1912)
The opinion states the case.
67 Tex. Crim. 467Rogers v. State (1912)
1. —Murder—Charge of Court—Manslaughter—Adequate Cause. Where upon trial of murder, the evidence showed that the deceased visited the wife of the defendant and had improper relations with her, and that the defendant on several occasions asked the deceased to cease his attentions to defendant’s wife, and on the day of the homicide again urged him not to do so, whereupon deceased told the defendant that he would continue such improper conduct regardless of defendant’s objections, and that he would marry defendant’s wife as soon as she got a divorce, etc., whereupon the defendant shot him, the court should have submitted this phase of the case in his charge on manslaughter. 2. —Same—Rule Stated—Insulting Conduct Towards Female Relative. Insulting words or conduct towards a female relative, embrace not only such circumstances as really insult the woman, but even if the acts are agreeable to her, yet the conduct is such as to be an insult to her husband, they are within the statute. Following Garrett v. The State, 36 Texas Grim. Rep., 233. and other oases. 3. —Same—Adequate Cause—State of Mind. Even though the adequate cause did exist, if the mind was not rendered incapable of cool reflection by anger, rage or resentment it would not reduce the offense to manslaughter. 4. —Same—Adequate Cause by Statute—Charge of Court. If a cause is made adequate by statute and is in evidence, the charge must not only tell the jury that the same is adequate cause but must apply the law to the facts. Following Ware v. State, 49 Texas Grim. Rep., 416, and other cases. 5. —Same—Practice. After the court has so instructed the jury, then it is proper to leave it to the jury to determine whether such cause produced anger or resentment to the extent to render the mind incapable of cool reflection. Following Chapman v. State, 40 Texas Grim. Rep., 272, and other eases. 6. -—Same—Cool Reflection. If one’s mind is capable of cool reflection, even though statutory adequate cause is proved, yet tne offense would be murder. Following Jones v. State, 47 Texas Grim. Rep., 515, and other cases. 7. —Same—First Meeting—Additional Insults. Where there has been a meeting after the first provocation, and the defendant learned of additional insults, and the killing occurs at the first meeting after the last provocation the charge should apply the law to the fresh provocation, authorizing the jury to look to the preceding facts and circumstances only in passing on the condition of defendant’s mind. Following Venters v. State, 47 Texas Crim. Rep., 281, and other eases. 8. —Same—Evidence—Threat. Before a threat made by the defendant can be admitted in evidence, it must be shown that the same related to the person slain. 9. —Same—Charge of Court—Murder in Second Degree—Self-Defense. Where, upon trial of murder, the objections to the court’s charge defining and applying the law of murder in the second degree and self-defense were not well founded, there was no error.
67 Tex. Crim. 472Tyler v. State (1912)
1<—Murder—Continuance—Bill of Exceptions. In the absence of a bill of exceptions, the overruling of the application for a continuance and admitting certain testimony oan not be considered on appeal. 2. —Same—Charge of Court—Conspiracy. In the absence of evidence to suggest a conspiracy between deceased and others to harm defendant, there was no error in the court’s failure to charge on conspiracy. 3. —Same—Charge of Court—Manslaughter—Self-Defense. Where, upon trial of murder, the court submitted proper charges on the law of manslaughter and self-defense as applicable to the evidence, there was no error. 4. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the defendant was convicted of murder in the second degree and the evidence sustained the conviction under a proper charge of the court, there was no error.
67 Tex. Crim. 474Lamb v. State (1912)
Forgery—Indictment—Explanatory Averments. Where, in an indictment for forgery, the instrument set out in the indictment was so uncertain on its face as not to show that it created a pecuniary obligation the same was insufficient, in the absence of explanatory averments alleging its true meaning.
67 Tex. Crim. 475Clinton v. State (1912)
Assault to Rape—Sufficiency of the Evidence—Identity of Defendant. Where, upon trial of assault to rape, the defendant was sufficiently identified as the party committing the assault, and the other facts were sufficiently proved, the conviction was sustained.
67 Tex. Crim. 476Baker v. State (1911)
1. —Theft of Cattle—Sufficiency of Evidence. Where, upon trial of theft of cattle, the evidence sustained a conviction, there was no error.' 2. —Same—Ownership—Brand. Where, upon trial of theft of cattle, ownership was established not solely by the owner’s brand, but by other evidence, there was no error. 3. —Same—Bill of Exceptions. The allegations in the bill of exceptions must be full and explicit, so that the matters presented to the court may be comprehended without recourse to inference. 4. —Same—Bill of Exceptions. The allegations in the bill of exceptions must be so explicit as to enable the Appellate Court to fully understand all the facts upon which the correctness or error of the ruling depends. 5. —Same—Bill of Exceptions. The bill of exceptions must set out the proceedings in the court below sufficiently to enable the Appellate Court to know that an error has been committed. 6. —Same—Bill of Exceptions. The bill of exceptions must be so full in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error, and must state enough of the evidence or facts proven to render intelligible the rulings excepted to. 7. —Same—Bill of Exceptions. A bill of exceptions can not be aided either by a statement in reply to a motion for new trial, or by the statement of facts; it controls even the statement of facts. 8. —Same—Bill of Exceptions. Objections in the bill of exceptions, or the mere statement of the ground of objection in it, is not the certificate of the judge that what is stated is true. Following James v. State, 63 Texas Crim. Rep., 75, and other cases. 9. —Same—Charge of Court—Defensive Theory. Where, upon trial of theft of cattle, the court’s charge clearly presented the law and applied it to the facts, and did not authorize the jury to do either or any of the things claimed in the attack thereon, but was favorable to the defendant, as far as the evidence allowed it, there was no reversible error. 10. —Same—Requested Charges. Where it did not appear from the record that the requested charges had been refused, and besides, were substantially covered in the court’s main charge, as far as they were applicable to the facts, there was no reversible error. [Rehearing withdrawn April 3, 1912. This case should have appeared under April, 1912.—Reporter.]
67 Tex. Crim. 482Johnson v. State (1912)
The opinion states the case.
67 Tex. Crim. 488Oates v. State (1912)
1. —Murder—Jury and Jury Law—Challenges. Where, upon trial of murder, it appeared by the record on appeal that no objectionable juror was forced upon defendant, there was no reversible error; it not appearing that the juror who sat upon the case was legally objectionable. Following Berg v. State, 64 Texas Grim. Rep., 612, and other cases. 2. —Same!—Evidence—Contradicting Witness—Surprise. Where, upon trial of murder, it was not clear that there was any particular or material difference between the positive statement of the witness of the State made in 1904 that two shots were fired, and the statement made on the trial in 1911 by the witness that he did not know how many shots were fired, and no injury was shown to the defendant in excluding the testimony of the witness given in 1904, and there was a serious question as to whether or not the matter of surprise could he urged, there was no reversible error. 3. —Same—Evidence—Moral Turpitude—Remoteness. Where, upon trial of murder, the testimony admitted showed that the defendant, after serving two years in the penitentiary for manslaughter, was only at liberty about five years when he was again convicted of homicide and sent to the penitentiary and that he had only been at liberty one year when arrested in the instant case and had since been in jail, there was no error in admitting this testimony, although the first conviction was nineteen years and the second conviction about twelve years prior to the time of the trial, as this was not too remote. Qualifying Winn v. State, 54 Texas Grim. Rep., 538. 4. —Same—Charge of Court—Principals. Where, upon trial of murder, it was clear from the evidence that defendant fired at deceased at the time of the homicide and that he and his companion were charged therewith, there was no error in the charge of the court that if the defendant participated in the transaction and did the killing, and the murder was committed in the act of a robbery, to convict him of murder in the first degree. 5. —Same—Charge of Court—Accomplice. Where the court’s charge on accomplice testimony was in compliance with the form laid down in approved precedent, there was no error. Following Campbell v. State, 57 Texas Grim. Rep., 301, and other cases. 6. —'Same—Sufficiency of the Evidence. Where, upon trial of murder, the same resulted in the death penalty, and the verdict was supported by the evidence, there was no reversible error. 7. —Same—Loyalty of Counsel—Attorney and Client. See opinion for commendation by the court of the loyalty of counsel for the defendant, under the appointment of the court. [Rehearing denied October 16,, 1912.—Reporter.]
67 Tex. Crim. 497Hart v. State (1912)
1.—Local Option—Statutes Construed—Statement of Tacts. Section 6 of chapter 119, Thirty-Second Legislature, provides that the party appealing shall prepare, or cause to be prepared from the transcript filed by the official shorthand reporter, as provided in section 5 of said Act, a statement of facts in duplicate, stated in a succinct manner and without unnecessary repetition, and where a statement of facts is brought up in question and answer form, the same will not be considered. 2. —Same—Continuance. Where the absent testimony of defendant’s wife could not have been true, there was no error in overruling the motion for continuance. 3. —Same—Evidence—Animus of Witness—Bill of Exceptions. Where defendant had been permitted to testify that he was a witness against a certain third party who was charged with robbery, and who became a witness against him in the instant case, and was allowed to show the animus of the said witness, there was no error in excluding testimony as to the guilt or innocence of said witness; besides, the bill of exceptions to said testimony was not filed within time. 4. —Same—Evidence—Orders of Commissioners Court. Upon trial of a violation of the local option law, there was no error in admitting in evidence the records of the Commissioners Court to prove that prohibition was in force in the county of the prosecution, although such orders were transcribed by the clerk of the court in the minutes, "and not by the judge or Commissioners Court. 5. —Same—Jury and Jury Law—Professional Jurors. Where, upon trial of a violation of the local option law, the appellant complained in his motion for new trial that the jurors were professional jurors, but there appeared no motion to quash the panel of the jurors, the complaint came too late; besides, the bill of exceptions was not filed within time. 6. —Same—Charge of Court—Alibi, Where, upon trial of a violation of the local option law, the evidence raised the issue of alibi, the court properly submitted a charge thereon. 7. —Same—Practice on Appeal—Statement of Pacts—Bill of Exceptions. Where, it appeared on motion for rehearing, that the clerk of the lower court had inadvertently failed to copy in the transcript a proper statement of facts prepared in accordance with the rules, and also the order extending the time in which to file bills of exception, the same were considered on appeal, but there appearing no error, the case must be affirmed. 8. —Same—Indictment—Behearing—Date of Election. Where the appellant, in his motion for rehearing, for the first time, attacked the sufficiency of the indictment because it did not allege the date of the election on prohibition, the complaint came too late. Following Hamilton v. State, 65 Texas Crim. Rep., 508. 9. —Same—Charge of Court—Motion for Rehearing. Where appellant sought in the motion for rehearing to complain of the court’s charge, and had not raised this question by bill of exceptions or in the motion for new trial, the same could not be considered on appeal.
67 Tex. Crim. 502Ashmore v. State (1912)
The opinion states the case.
67 Tex. Crim. 504Cyphers v. State (1912)
1.—Passing Forged Instrument—Bills of Exception. Where the bills of exception to the admission of evidence and matters of practice were not filed in the lower court, they must be stricken out on motion by the State; besides, appellant accepting the bills as qualified, there was no reversible error. .2.—Same—Charge of Court—Requested Charge. Where, upon trial of passing a forged instrument, the question of consent or authority to sign, etc., were submitted to the jury more favorably to the defendant than in the charge he requested, there was no reversible error. [Rehearing denied October 16, 1912.—Reporter.]
67 Tex. Crim. 506Knapp v. State (1912)
The opinion states the case.
67 Tex. Crim. 507Wesley v. State (1912)
1. —Passing Forged Instrument—Circumstantial Evidence—Charge of Court. Where, upon trial of passing a forged instrument, the evidence was direct, there was no error in the court’s failure to charge on circumstantial evidence. 2. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not show what answer the witness gave, there was nothing to review on appeal. 3. —Same—Evidence not Hearsay. Upon trial of passing a forged instrument, where the testimony showed a personal knowledge of the transaction by the witness, it was not hearsay; neither was there error in showing that the bank on which the alleged check was drawn refused payment thereof. 4. —Same—Secondary Evidence—Check. Where, upon trial of passing a forged instrument, the proper predicate was laid of the loss of the original check described in the indictment, there was no error in admitting secondary evidence of its contents. 5. —Same—Evidence. Where the court had quashed the first count in the indictment because of a defect therein, there was no error in excluding testimony with reference thereto. 6. —Same—Continuance—Surprise. Where, upon trial of passing a forged instrument, there was a want of diligence in procuring the absent witness and no surprise could be claimed, there was no error in overruling the motion. 7. —Same—Evidence—Request by Jury—Statutes Construed. Where the jury, after their retirement, requested that the stenographer read the testimony of a certain State’s witness, the jury disagreeing about such testimony, and the court only permitted that part to be repeated which covered the request of the jury there was no error. Article 735, Code Criminal Procedure. 8. —Same—Indictment—Indorsement. It was not necessary to allege the indorsement on the check, as it was shown that it was placed there long subsequent to the execution of that instrument. [Rehearing denied October 16, 1912.—Reporter.]
67 Tex. Crim. 510Tucker v. State (1912)
The opinion states the case.
67 Tex. Crim. 519Jaynes v. State (1912)
The opinion states the case.
67 Tex. Crim. 541Boyd v. State (1912)
The opinion states the case.
67 Tex. Crim. 543Brown v. State (1912)
1. —Arson—Insufficiency of the Evidence—Circumstantial Evidence. In a case of circumstantial evidence, the rule is that the circumstances must be sufficiently cogent to exclude every reasonable doubt except the guilt of the defendant, and where, upon trial of arson, the evidence was entirely circumstantial and defendant pleaded an alibi, and there was a want of sufficient evidence that he burned the alleged house, the conviction could not be sustained. 2. —Same—Secondary "Evidence—Insurance Policy. Where, upon trial of arson, the State attempted to show that the alleged house was burned for the purpose of getting the’ fire insurance thereon, the insurance policy was the best evidence, and before secondary evidence could be introduced, the loss of the policy should have been shown or that it could not be produced, and the fact that defendant took the witness stand subsequently and testified about the matter does not cure the error. 3. —Same—Rule Stated. Where testimony has been erroneously admitted, and the defendant is thereby called upon to meet such testimony, the error of the admission of such illegal testimony is not thereby cured. 4. —game—Evidence—letter—Confession. Where, in- a trial for arson, the State was permitted to introduce a letter of the defendant while in jail to one of the State’s witnesses, and the qualification of the trial judge that the letter was used to show that said State’s witness was unfriendly to the defendant did not relieve the matter of the objection that the same was inadmissible either as a direct or indirect confession, there was reversible error. 5. —Same—Imputing Crime to Another. Where, upon trial of arson there was evidence that third parties removed certain property from defendant’s house without his consent, and the burning of said house occurred in defendant’s absence and he denied that he had anything to do with such removal of said goods or the burning of said house, the court should have instructed the jury to acquit the defendant if they did not believe he was concerned in the removal of said goods as the State claimed.
67 Tex. Crim. 549Ex Parte Burroughs (1912)
Tried below before the Hon. Bobt. B. Seay. Appeal from extradition proceedings remanding relator to custody. The State’s testimony showed that the officer of the demanding State identified the relator as the man for whom he had the requisition, and that he was a fugitive from justice from that State.
67 Tex. Crim. 550McCollum v. State (1912)
Carrying Pistol—Residence—Charge of Court. Where, upon trial of unlawfully carrying a pistol, there was evidence that the defendant carried the alleged pistol on his uncle’s place which he considered as his home, there was reversible error in not submitting a charge on this phase of the case as requested by the defendant.
67 Tex. Crim. 551Bolt v. State (1912)
The opinion states the case.
67 Tex. Crim. 551Milling v. State (1912)
The opinion states the case.
67 Tex. Crim. 556Rawls v. State (1912)
Decoying Minor—Statement of Facts. Where the judgment was affirmed because of the absence of a statement of facts, and it was shown on motion for rehearing that the failure of the trial judge to approve the statement of facts arose from no want of diligence on the part of appellant, the judgment will be reversed and the cause remanded. Sargent v. State, 61 Texas Grim. Rep., 34, and other cases.
67 Tex. Crim. 558Parrish v. State (1912)
1. —Malicious Mischief—Transcript—Practice on Appeal—Certiorari. Where the transcript made out was contested as incorrect by State’s counsel, and the court, on its own motion, issued a writ of certiorari commanding the clerk of the court below to send up a correct transcript, and it was found that the record was in such condition that the transcript could not be considered, the case must be affirmed, as the fault was due to appellant or his attorney. 2. —Same—Transcript—Practice on Appeal. Where the clerk of the court below failed to obey the writ of certiorari commanding him to send up a correct transcript, and the court cited the attorneys of both parties and the county clerk to appear before his court to show why they should not be punished, and it appeared that parties had not been intentionally derelict, they were discharged with the cost of the proceeding, and the State’s counsel who was not derelict was discharged without cost. 3. —Same—Practice on Appeal—Transcript—Clerk of Court. No clerk of the court below should send up a transcript in any cause appealed from his court without personal knowledge that the same is a correct copy of the records in his office. 4. —Same—Tampering with Transcript. While in this case no intentional wrong is found as to those who had anything to do with the preparation of the transcript, no fine will be imposed, but if it were found that any person had intentionally sent to this court an incorrect record for the purpose of securing either an affirmance or a reversal of the case, the court would assess such punishment against him as would in future deter persons from doing so. 5. —Same—Practice in County Court—Transcript. Persons coming in contact with the record should realize the necessity that transcripts sent to this court must be free of suspicion, and clerks in comparing the copies with the original files should see that the transcript is correct, and that if any papers bare any evidence which arouse suspicion, the matter should be called to the attention of the trial judge and the issue tried by him.
67 Tex. Crim. 561Boswell v. State (1912)
1. —Gaming—Indictment. Where, upon trial of unlawfully keeping a room as a place where people resorted for the purpose of betting upon games played with cards, the indictment followed approved precedent, there was no error. Following Goodwin v. State, 63 Texas Grim. Rep., 140. 2. —Same—Continuance. Where the alleged absent testimony was immaterial, and that which was material was testified to by other witnesses, there was no error in overruling a motion for continuance. 3. —Same—Requested Charge. Where the evidence did not raise the issue set out in the special charge, there was no error in refusing it; neither was there error to refuse a re- ■ quested charge which was embraced in the main charge. 4. —Same—Sufficiency of the Evidence—Principals. Where, upon trial of unlawfully keeping a room in a certain place where people resorted for the purpose of gaming, the evidence sustained the conviction and the court’s charge on principals was authorized by the evidence, there was no error. 5. —Same—Charge of Court. Where the testimony showed that defendant was running a gambling house and not that he was actually engaged in playing, the criticism of the court’s charge as to his participating in the game is untenable; defendant being convicted for unlawfully keeping a gambling room.
67 Tex. Crim. 565Overstreet v. State (1912)
1. —Burglary—Confession—Evidence—Oral Testimony. Where the written confession stated that defendant was advised by the • county attorney that he was charged with burglary and that he did not have to make any statement about the matter, unless he desired to do so, and that any statement that he might make could- be used against him in the trial of his case and that he willingly made said written statement to the said Pat M. Neff, -who was then shown by oral testimony to be the county attorney, the same was sufficient. Davidson, Presiding Judge, dissenting. 2. —Same—Evidence—Confession of Codefendant—Conspiracy.. - Where, upon trial of burglary, the defendant was charged with a certain . burglary and the theory of the State was that defendant and his companion had been, acting together in the entry of two different houses on different occasions with burglarious intent to steal, it was reversible error to admit in evidence the statement of said companion made after the commission of the offense and out of the presence and hearing of the defendant, and this, although said statement led to the discovery of some of the alleged stolen goods. 3. —Same—Charge of Court—Confession of Accomplice. Upon trial of burglary, it was reversible error to instruct the jury that they might consider the confession of an accomplice after the alleged burglary which led to the discovery of some of the . stolen goods, and which statement was made in the absence of the defendant; and which further charged the jury that they might consider the previous confession of the defendant in connection therewith, although the same was not freely made. 4. —Same—Evidence—Other Offenses. Wherever the State has made a clear ease, the resort to evidence of other offenses is not permissible, and where defendant was charged with burglary of a certain house and the State’s case was not dependent upon a previous burglary which had no connection with the burglary for which defendant was being tried, evidence with reference to such previous burglary was inadmissible.
67 Tex. Crim. 569Woods v. State (1912)
The opinion states the case.
67 Tex. Crim. 572White v. State (1912)
The opinion states the case.
67 Tex. Crim. 573Kinch v. State (1912)
The opinion states the case.
67 Tex. Crim. 574Bagley v. State (1912)
1. —Aggravated Assault—Evidence. Where the record did not contain any bill of exceptions to the admission of certain testimony, the same could not be considered on appeal. 2. —Same—Indictment. Where the indictment sufficiently alleged the offense of aggravated assault and battery, the same was sufficient. 3. —Same—Charge of Court—Serious Bodily Injury. Where the court’s charge properly defined the term “serious bodily injury,” there was no error; besides, no special charge was requested or bill of exceptions reserved. 4. —Same—Sufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence sustained the conviction, there was no reversible error.
67 Tex. Crim. 576Dool v. State (1912)
1. —Aggravated Assault—Indictment. Where the indictment for aggravated assault followed approved precedent, the same was sufficient. 2. —Same—Evidence—Definition. Every battery includes an assault, and there was no error in admitting testimony that defendant struck the injured party, bit her finger, and otherwise maltreated her. " 3. —Same—Sufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence showed that the defendant forcibly took away his children from his wife and in doing so struck her and bit her finger, the conviction was sustained. 4. —Same—Requested Charge—Intent. Where, upon trial of aggravated assault, the evidence showed that the defendant in an attempt to forcibly take his children from the peaceable possession of his wife, bit and otherwise abused her, there was no error in refusing requested charge on the question of intent to injure.
67 Tex. Crim. 578Bowles v. State (1912)
1. —Gaining—Offense Defined. Under article 557, Penal Code, betting on any game played with dice is made an offense wherever played. 2. —Same—Surplusage—Information. Where the information charged that defendant bet at a game played with dice at a private residence, the allegation that the private residence was commonly resorted to for the purpose of gaming was surplusage and the State could make out its case without proving said last allegation, and there was no error in the court’s failure to charge that such proof was necessary. 3. —Same—Convict—Felony—Witness. Where the witness had been convicted of felony and no final judgment had been pronounced against him when he testified, he was a competent witness. Articles 27, Penal Code, and 788, Code Criminal Procedure.
67 Tex. Crim. 580Roberts v. State (1912)
1. —Murder—Evidence—Bills of Exception. The statute requires that bills of exception must be filed with the clerk within the given time, and the file marks of the clerk must appear thereon; but where it is shown that such bills were filed, but the file mark inadvertently omitted in the transcript, the same will be considered on appeal. 2. —Same—Charge of Court—Practice on Appeal. Where the defendant was convicted of murder in the second degree, a complaint of the charge of the court on murder in the first degree will not be considered on appeal. 3. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence would have sustained a verdict of murder in the first degree, there was no reversible error in the court’s definition of implied malice and his repetition thereof, as defendant was convicted of murder in the second degree and could not complain; there being no issue of manslaughter in the case. 4. —Same—Charge of Court—Insanity. Where, upon trial of murder, the court’s charge placed the burden of proof on defendant to show by a preponderance of the evidence that he was insane, there was no error; besides, the complaint was too general. 5. —Same—Charge of Court—Uncontrollable Impulse. Where, upon trial of murder, the defendant requested a charge on the question of uncontrollable impulse, there was no error in refusing same, as the question was whether he knew the nature and quality of the act charged against him. 6. —Same—Evidence—Continuance. Where, upon trial of murder, defendant’s application for continuance showed due diligence, and that the absent testimony would be material in establishing the plea of insanity, the continuance should have been granted. 7. —Same—Evidence—Acts of Deceased. "Upon trial of murder, it was error to admit testimony that prior to the "killing the deceased was kneeling down at the church altar crying, it not being shown that defendant was present or could have seen this. 8. —Same—Evidence—Confessions. A confession can not be introduced in evidence unless it be reduced to writing under the requirements of the statute, nor can its contents be introduced in evidence unless the absence of the original is accounted for. 9. —Same—Argument of Counsel. The statement of the county attorney, that the jury ought to hang the • defendant and that if they did not do so, and sent him to the penitentiary, the Governor would pardon him under some flimsy pretext, etc., while highly improper, was not reversible error, as the death penalty was not inflicted. 10.—Same—Practice on Appeal. Complaints to the selection of a special judge, and other matters which will not arise on another trial need mot be considered on appeal.
67 Tex. Crim. 585Gill v. State (1912)
1. —Recognizance—Dismissal. Where an appeal was dismissed because of a defective recognizance, the same was reinstated upon the filing of a valid recognizance. 2. —Selling Liquor Without License—Information—Surplusage. Where, upon trial of selling spirituous and other liquors by retail without license, the information charged this offense, even after the surplus words objected to were stricken out, the same was sufficient. 3. —Same—Sufficiency of the Evidence. Where, upon trial of retailing spirituous and other liquors, keeping or being concerned therein under articles 496 and 500, Revised Penal Code, the evidence established the fact that the defendant could not obtain license in that portion of the city where the liquor was kept for retail, and that he was personally concerned in keeping and selling malt liquors, the conviction was sustained. 4. —Same—Charge of Court—Accomplice. Upon trial of being concerned in keeping a certain house where spirituous and other liquors were sold and kept for sale by retail without license, • there was no error in the court’s failure to charge on the law of accomplice. Moreno v. State, 64 Texas Grim. Rep., 660, and other cases. 5. —Same—Charge of Court—License. In a prosecution for being concerned in keeping a certain house for the sale of intoxicating liquors by retail, the fact that the sales were made in territory where defendant could not obtain license would be no defense, and there was no error in the court’s failure to charge thereon. Following Joliff v. State, 53 Texas Grim. Rep., 61.
67 Tex. Crim. 587Soape v. State (1912)
The opinion states the case.
67 Tex. Crim. 588Irving v. State (1912)
The opinion states the case.
67 Tex. Crim. 590Williams v. State (1912)
1. —'Assault to Murder—Statement of Facts. Where, upon appeal from a conviction of assault to murder, the purported statement of facts was not signed and approved by the trial judge, the same could not be considered. 2. —Same—Bill of Exceptions—Practice on Appeal. Where, in the .absence of a statement of facts, the bill of exceptions did not show upon its face that it contained all the evidence in the trial in regard to the matter complained of, the same could not be considered on appeal. Following Bryant v. State, 35 Texas Grim. Rep., 394, and other eases. 3. —Same—Practice on Appeal. In the absence of a statement of facts, exceptions to the insufficiency of the evidence and charge of the court can not be considered on appeal. 4. '—Same—Evidence. Upon trial of assault to murder, there was no error in excluding testimony as to what, took place between defendant and the alleged injured party the day after the difficulty, as the same threw no light on the transaction. 5. —Same—Evidence—Acts of Third ■ Parties. Where neither defendant nor the third party were on trial for the transaction offered as testimony, there was no error in refusing to permit in evidence the details of their transaction. 6. —Same—Charge of Court—Practice on Appeal. In the absence of a statement of facts, where the charge of the court is applicable to any state of facts that might be made by the testimony under the allegations in the indictment, this court will assume that the court below submitted to the jury the law of the case and all the law required by the testimony on any portion of same. Following Wright v. State, 37 Texas Crim. Rep., 146, and other eases. 7. —Same—Deliberations of Jury. This court shall not consider the length of time a jury shall take in considering what verdict they shall render, and a bill of exceptions that the jury returned a verdict within ten minutes presents no error. [Rehearing denied October 23, 1912. Reporter.]
67 Tex. Crim. 593Love v. State (1912)
1. —Burglary—Statement of Facts. Where counsel for appellant did not comply with the law in getting up a statement of facts, and the record was incomplete as to such statement of facts by their own fault, there was no reversible error, and the statement could not be considered, it not being approved as the law directs. 2. —Same—Continuance—Bill of Exceptions. In the absence of a statement of facts, the bill of exceptions to the overruling of the motion for a continuance can not be considered, and the indictment being sufficient and the court submitting the offense charged therein, there was no error. [Behearing denied October 23, 1912. Beporter.]
67 Tex. Crim. 594Banks v. State (1912)
1. —Murder—Charge of Court—Adequate Cause—Manslaughter. Where, upon trial of murder, the defendant was convicted of manslaughter, the contention that the 'court did not define adequate cause in his charge on manslaughter, presented no error. 2. —Same—Charge of Court—Alibi. Where the court, at the conclusion of his charge on manslaughter, charged upon the law of alibi, the objection that the court mingled and eo-mingled his charge on manslaughter with the charge on alibi was untenable; especially where no charge on alibi was requested. Following Jones v. State, 3 Texas Grim. Rep., 131. 3. —Same—Charge of Court—Self-Defense. Where, upon trial of murder and a conviction of manslaughter, there was evidence that some other person than defendant committed the offense, and also evidence of self-defense, there was no error in the court’s charge, in submitting self-defense, to add thereto that if some other person than defendant did the killing, to acquit. 4.—Same—Charge of Court—Defensive Theories. Where, upon trial of murder, the defensive theories were presented more favorably than necessary, the complaint that these issues were made too prominent, was untenable. [Rehearing denied October 33, 1913. Reporter.]
67 Tex. Crim. 597Williams v. State (1912)
The opinion states the case.
67 Tex. Crim. 599Kinnebrew v. State (1912)
1. —Occupation—Selling Intoxicating Liquors—Local Option—Law in Force. Where, upon appeal from a conviction of pursuing the occupation of selling intoxicating liquors in a county where prohibition had been adopted, the statement of facts did not show that prohibition was in force in said county, the cause must be reversed and remanded. 2. —Same—What the Record Must Show—Prohibition Territory. The record must show that prohibition has been adopted—in a prosecution for pursuing the occupation of selling intoxicating liquors—in the county of the prosecution; as the court can not judicially know in what portions of the "State the people have adopted this law. 3. —Same—Occupation—Sale—Definition. The pursuit of the occupation of selling intoxicating liquors in prohibition territory is a distinct offense from that of making a sale therein, and the court must properly so charge the jury..
67 Tex. Crim. 600Knowles v. State (1912)
1. —Gaining—Betting at Craps—Private Residence. Betting at craps is a violation of the statue everywhere, although it occurs at a private residence. 2. —Same—Craps—Continuance. Where defendant’s first application for continuance showed proper diligence and the absent testimony was material, he was entitled to a continuance.
67 Tex. Crim. 601Tyler v. State (1912)
The opinion states the case.
67 Tex. Crim. 603McElroy v. State (1912)
Mortgaged Property—Fraudulent Disposition of—Indictment—Indebtedness. Where, upon trial of fraudulently disposing of mortgaged property, the indictment failed to alleged the consideration for said mortgage, or what indebtedness it was to secure, the same was fatally defective.
67 Tex. Crim. 604Gaines v. State (1912)
The opinion states the case.
67 Tex. Crim. 609Wood v. State (1912)
The opinion states the case.
67 Tex. Crim. 612Craig v. State (1912)
1. —Perjury—Practice on Appeal—Companion' Case. Where the issues raised on appeal were' decided advérsély to appellant in a companion case, they need not be again considered. 2. —Same—Jury and Jury law—Remarks by the Court—Challenge. Where defendant excepted to the remarks by the court, with reference to a reprimand which the court gave a defendant in another case, as having influenced the jurors, and therefore, challenged them for cause, and the court overruling this challenge the defendant exhausted his peremptory challenges and there were left some of the jurors upon his jury to whom he had excepted on the above ground, but the bill of exceptions did not show that appellant was in any way injured by having to take said jurors, who were not disqualified, there was no error. 3.—Same—Sufficiency of the Evidence. Where, upon trial of perjury, the evidence sustained the conviction and the court correctly submitted the issues in the ease, there was no error. [Behearing denied December 18, 1912, Beporter.]
67 Tex. Crim. 615Snodgrass v. State (1912)
1. —Theft of Horse—Sufficiency of the Evidence—Alibi. Where, upon trial of theft of a horse, the issue was squarely drawn as to whether defendant was the person who stole the horse, the testimony offered by him proving a complete alibi, if the jury had believed it, but the testimony offered by the State supported the verdict of the jury, there was no reversible error. 2. —Same—Suspension of Sentence—Constitutional law. The Legislature has no authority under the Constitution to confer upon district judges the authority to suspend sentence after a person has been legally convicted of crime, or to extend immunity from punishment under the condition named in the Act of the Third-Second Legislature, chapter 44. 3. —Same—Suspension of Sentence—Judicial Power. The power of the court to suspend the sentence does not conflict with the power of the Governor to grant reprieves, there being a distinction between a reprieve and a suspension of sentence, in that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time; but the Act of the Thirty-Second Legislature permits the court to grant an unconditional pardon, although the word .“pardon” is not used therein, and is unconstitutional as the pardoning power is conferred • by that instrument upon the Governor alone. 4. —Same—Power to Pardon—Constitutional Law. The Act of the Thirty-Second Legislature, chapter 44, under conditions named exempts from punishment persons guilty of crime, and is but an indirect exercise of the power to pardon which by the Constitution is exclusively Conferred upon the Governor. 5. —Same—Constitutional Power—Co-ordinate Branches of Government. The legislative, judicial and executive departments each received from the people as expressed in the Constitution that portion of power that the sovereign citizenship deemed necessary and proper to discharge all the functions of government relating to their respective departments and no more, and each is sovereign in the exercise of the powers confided to it, each the equal but not the superior of the other co-ordinate branch of the government. 6. —Same—Constitutional Law—Pardoning Power. The Constitution of Texas having conferred upon the Executive Department the exclusive power to grant pardons, the Act of the Thirty-Second Legislature, chapter 44, seeking to confer this- power on the district judges of the State is in violation of that provision of the Constitution, and is null and void. 7. —Same—Suspension of Sentence—Power to Reprieve. While the power to suspend the sentence by the court does not conflict with the power of the Governor to grant reprieves and pardons, the Legislature had no power to confer on the trial court authority to remit the punishment after a conviction had been obtained and the penalty assessed by a verdict of the jury, and said Act under the guise of suspension of sentence can not exercise the power of the Governor to reprieve or pardon. 8. —Same—Judicial Construction:—Inherent Power of Courts—Benefit of Clergy. The courts of the other states which hold that the courts have the inherent power to suspend sentence, decline to go to the extent that the court by order entered may entirely remit all punishment, and base the power of suspension of sentence upon the custom of the English courts by whom it was termed a reprieve and who permitted the plea of benefit of clergy to be filed after conviction, but before the punishment had been assessed; but this procedure has no application to the jurisprudence of Texas, and has long since been abolished in England. 9. —Same—Constitutional Law—Pardoning Power. The people of Texas desiring to make it certain that no one except the Governor should ever exercise the pardoning power, apparently being afraid that as first written the power to reprieve might not be ample to stay the hand of the other departments of government, later added in their written constitution that the power to commute the punishment was vested solely in the Governor, clearly making it known that it was not their wish or will that the judiciary of Texas should ever exercise the power and authority exercised by the English courts under the benefit of clergy plea; whatever may be the rule in other jurisdictions under different constitutions and laws, it is not' the rule in Texas. 10. —Same—Practice in English and Federal Courts. The practice in the English and Federal courts is that the jury passes -on the guilt of the prisoner, but has nothing to say as to the punishment to be assessed; this is done under the sentence of the court, but in Texas the jury in passing on the guilt of the defendant also assesses the punishment if they find defendant guilty and the judge in pronouncing sentence can neither alter nor amend, increase nor diminish the punishment, but must assess the penalty as fixed by the jury, therefore, the plea of benefit of clergy has never had any place in our system of jurisprudence. ^ 11. —Same—Policy of Constitution. As to the wisdom of the framers of the Constitution of Texas, in giving to one department of government the authority to try offenses and assess the punishment thereof, and to another department the authority to remit the punishment, is not a question for- the courts; however, there were many good reasons therefor. 12. —Same—Meaning of the Term “After Conviction.” The contention of appellant that the words “after conviction,” mean after the sentence has been pronounced and that the Governor has no right to pardon until the court has pronounced sentence is untenable. Distinguishing Arcia v. State, 26 Texas Grim. App., 193. 13. —Same—Judicial Construction—Words and Phrases. In the case of Arcia v. State, 26 Texas Grim. App., 193, the court was not discussing the meaning of the words “after conviction,” as used in the Constitution of Texas, and only limited the decision as it affected the civil rights of the person adjudged guilty of crime and based it upon the peculiar wording of our statutes at that time with reference to appeals and sentences. 14. —Same—legislative Construction—Common law. The contemporaneous legislative construction of the meaning of the words “after conviction,” is in accord with the meaning of the words as known to the common law, and as adhered to by the great weight of authority in this county, and is in accord with the opinion of this court in the Arcia case, supra. 15. —Same—Common law—Conviction for Crime. Under the common law, a person was said to be convicted of the crime when verdict was rendered thereon adjudging him guilty, but not attainted (a forfeiture of civil rights) until after the punishment had been assessed by the judgment and sentence of the court; thus it is seen that the terms, “after conviction,” under our Constitution do not embrace the sentence, but simply the guilt of the defendant who is subject to pardon after conviction. 16. —Same—Right of Appeal—Final Conviction—Statutes Construed. Under the Act of the Thirty-Second Legislature, the question of the right of appeal is not involved as thereby no right of appeal shall exist, and after conviction no additional step is authorized to be taken by any tribunal in determining the guilt of the accused, and therefore, the conviction is final. 17. —Same-—Judicial Construction—Common law—Forfeiture of Civil Rights. Under the common law a man did not forfeit his civil rights until after he had been attainted and this followed the sentence, although he might be convicted of the offense by verdict of the jury; and in the Arcia case, supra, this court limited its holdings to a forfeiture of civil rights and it has so been held in all subsequent decisions, which are not, therefore, in conflict with the opinion in this case; but under the above Act, the right of appeal is taken from a defendant when the court suspends sentence thereunder, and the conviction is, therefore, a finality. 18. —Same—Statutes Construed—Practice in English Courts. The Act of the Thirty-Second Legislature, chapter 44, is drawn in accord-ance with the practice of the English courts .under the benefit of clergy plea as known in the eighteenth century (just before its abolishment in that country), except there is added to the provisions the right to later recall tlie judgment of clemency and inflict the original punishment for some act thereafter committed. This was never known or practiced at common law and is entirely foreign to the jurisprudence of Texas and contrary to our Constitution. 19. —Same—Suspension of Sentence—Reprieve—Pardon. This character of sentence or reprieve was never exercised by the common laub courts and is unknown to both the English jurisprudence and that of this country; it is a misnomer, and gives to these words a meaning unknown to the law and unauthorized by any lexicographer. The pardoning power in England can only be exercised by the King, and in Texas by the executive, under our Constitution. 20. —Same—Definition of Pardon. A pardon is an act of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed; this power is exclusively conferred upon the executive of this state and can not be conferred upon the courts as is attempted by the Act of the Thirty-Second Legislature, which is, therefore, clearly unconstitutional. 21. —Same—New Trial—Motion for New Trial. That portion of appellant’s brief relating to the power of a court to grant a new trial need not be discussed, as the Act in question does not contemplate another trial of the defendant;" however, the rule of law in this State is, where no motion for new trial has been filed before the end of the term at which the judgment is entered, no court has the power or authority to grant a new trial or change its judgment at a subsequent time. 22. —Same—Constitutional Law—Forfeiture of Rights or Privileges. The Act of the Thirty-Second Legislature, chapter 44, is also violative of section 2 of article 16 of the Constitution of Texas, wherein it is provided that persons adjudged guilty of certain offenses shall forfeit certain rights and privileges. 23. —Same—Suggestion of Remedial Legislation. See opinion suggesting a law that, where it appears in the trial court that the offense is the first one of which defendant may be convicted, the court may make recommendations to the Governor for a conditional pardon. 24. —Same—Constitutional Law—Practice on Appeal. The Constitution of Texas is the supreme law of the State and can not be frittered away by technical judicial construction, and this court will take the Constitution as its guide and uphold it in all its provisions.
67 Tex. Crim. 615Landry v. State (1912)
The opinion states the case.
67 Tex. Crim. 648Snodgrass v. State (1912)
The opinion states the case.
67 Tex. Crim. 654Miller v. State (1912)
The opinion states the case.
67 Tex. Crim. 658Calliham v. State (1912)
The opinion states the case.
67 Tex. Crim. 660Thompson v. State (1912)
The opinion states the case.
67 Tex. Crim. 664Windham v. State (1912)
1.—Theft—Evidence—Fruits of Crime—Confession. Where, upon trial of theft, the officer who arrested defendant testified that the defendant admitted he had stolen the alleged money and told him that he had given it to a third party who surrendered it to the sheriff, such testimony was admissible under article 810, Penal Code, with reference to confessions. Following Martin v. State, 57 Texas Grim. Rep., 595, and other cases. i$.—Same—Demurrer to the Evidence. Where, upon trial of theft, the evidence was sufficient to sustain the conviction, there was no error in overruling a demurrer to the evidence. 3. —Same—Juvenile Law—Jury. Under the juvenile law the court is authorized to empanel a jury to pass upon the guilt or innocence of defendant; the court fixing the punishment. 4. —Same—Requested Charge—Practice. Uniere the court, on motion of defendant, transferred his case to the juvenile docket and tried him iinder the provisions of that law, there was no error in refusing a requested charge that the jury fix the punishment. 5. —Same—Age of Defendant—Charge of Court—Discretion of Minor. Article 34, Penal Code, requires that the defendant must understand the nature and illegality of his act, when a person is under the age of thirteen, and the burden is upon the State to show that defendant has such discretion, and where the evidence showed that he did have such discretion, a refusal of a special charge with reference to the age and discretion of defendant was not reversible error under article 743, Code Criminal Procedure. Davidson, Presiding Judge, dissenting. 6. —Same—Bills of Exception. Where the record on appeal did not show that any motions or pleas were filed.with reference to the term of court and the swearing of the officer who summoned the jury, and that bills of exceptions were reserved, the same could not be considered on appeal.