68 Tex. Crim.

Volume 68 — Texas Criminal Reports

168 opinions

68 Tex. Crim. 1Snell v. State (1912)
1. — Local Option — Statement of Facts — Bills of Exception. Where no order was made permitting the statement of facts and bills of exception to be filed after the adjournment of the term, they could not be considered on appeal, as they were filed after adjournment. Following Hamilton v. State, 65 Texas Crim. Rep., 508. '2. — Same—Motion in Arrest of Judgment — Repeal of Law — Vagrancy Act. The Vagrancy Act did not repeal the prohibition law in counties where the same is made a misdemeanor. Following Parshall v. State, 62 Texas Crim. Rep., 177. 3. — Same—Information—Motion in Arrest of Judgment. Where the information did not allege whether the prohibition election which put the law in force in the territory of the prosecution occurred before or after the felony statute went into effect, this formal defect could not be reached by motion in arrest of judgment. Following Hamilton v. State, 65 Texas Crim. Rep., 508.
68 Tex. Crim. 2Black v. State (1912)
The opinion states the case.
68 Tex. Crim. 4Hardes v. State (1912)
The opinion states the case.
68 Tex. Crim. 11Marlow v. State (1912)
1. —Assault to Murder — Aggravated Assault — Motion for New Trial. Where the grounds in the motion for new trial relate to the admission of testimony, the same can not be considered in the absence of bills of exception verifying these matters. 2. —Same—Bill of Exceptions. Where a bill of exceptions is not in the record, the same can not be reviewed on appeal. 3. —Same—Charge of Court — Statement of Facts., In the absence of a statement of facts, criticisms of the court’s charge can not be considered, especially where defendant was acquitted of assault to murder and convicted of aggravated assault.
68 Tex. Crim. 12Valigura v. State (1912)
The opinion states the case.
68 Tex. Crim. 14Coley v. State (1912)
Tried below before' the Hon. James L. Shepherd. Appeal from a conviction of unlawfully disposing of mortgaged property; penalty two years imprisonment in the penitentiary. The opinion states the case.
68 Tex. Crim. 17Holmes v. State (1912)
1. —Murder—Evidence—Declaration of Third Party. Where, upon trial of murder, the difficulty arose from the relations between defendant and the sister of deceased, there was no error in not admitting testimony as to the declarations of a third party to the father of the deceased which rendered it possible or probable that another person than defendant had also had sexual intercourse with the sister of the deceased, it not being shown that defendant had any knowledge of this conversation prior to the shooting, and said testimony not being admissible or -offered as impeaching said State’s witness, who was the father of the deceased. Davidson, Presiding Judge, dissenting. 2. —Same—Discretion of Court — Argument of Counsel — Statutes Construed. Where it was contended that the court did not give sufficient time to defendant’s counsel to present his side of the case, and there was no showing that the court abused his -discretion in limiting the argument of counsel, under article 705, Code Criminal Procedure, and no injury was shown, and appellant’s bill of exceptions did not disclose that his counsel even used the time allotted to them, there was no reversible error. 3. —Same—Discretion of Court — Discussion of the Lav?. It is a matter within the discretion of the court whether the authorities on questions of law shall be presented to the court in the presence of the jury, and this discretion will not be revised on appeal unless it has been abused to the prejudice of the defendant. 4. —Same—Charge of Court — Bill of Exceptions — Practice on Appeal. Where it did not appear on appeal, either by bills of exception or motion for new trial, that any reason was assigned why the court erred in failing to give a requested charge, the same can not be reviewed. Following Ryan v. State, 64 Texas Crim. Rep., 628, and other cases. 5. —Same—Motion for New Trial — Practice on Appeal. The rule adopted by this court is that the motion for new trial .must so definitely specify the reasons why a special charge should have been given as to direct the attention of this court to the precise error of which complaint is made, and no reason not so specified can be urged on appeal; and attorneys can not proceed in this regard under the rules in civil cases. 6. —Same—Assignments of Error — Civil Cases. In civil eases the motion for new trial merely states that the court erred in a certain paragraph of his charge, and then in the assignments of error, filed later on, the claimed error is pointed out under certain propositions; this is not the rule in criminal cases, but everything must be stated in the motion for new trial. 7. —Same—Evidence—Moral Turpitude. Where, upon trial of murder, the State was permitted to introduce in evidence certain indictments to show that the defendant was charged with certain misdemeanors not involving moral turpitude, the error was not of such nature as to work a reversal of the case, as the witness’ testimony 'was upon an immaterial matter; yet such practice was improper and should not reoccur. 8. —Same—Charge of Court — Weight of Evidence. Where, upon trial of murder, all the witnesses agreed that the large wound in the right breast or side of deceased was the one, and the only one, that could have caused death, there was no reversible error that the court submitted the case solely on this wound and left the question of fact to the jury as to whether defendant inflicted it. 9. —Same—Charge of Court — Reasonable Doubt — Charge as a Whole. Where, upon trial of murder, the court instructed the jury that if someone else than defendant fired, etc., to acquit, and also in another portion of the charge submitted the reasonable doubt as to whether defendant fired the shot, there was nothing in the 'contention that the court had not ¡submitted the reasonable doubt; when the charge was considered as a whole. 10. —Same—Charge of Court — Reasonable Doubt. Where, upon appeal from a conviction of manslaughter, it appeared that the court attempted to define reasonable doubt instead of instructing the jury in the language of the statute, while not reversible error, yet it is better practice' to charge the language of the statue, and not define the meaning of th.e words. 11. —Same—Bill of Exceptions. In the absence of a bill of exceptions showing that the court below lectured the jury, etc., the matter can not be reviewed on appeal. 12. —Same—Charge of Court — Manslaughter. Where the indictment charged the defendant with retaining liquors with charge on manslaughter, and the court’s charge in this respect, when taken as a whole, was not subject to said criticism, and the jury found defendant guilty of manslaughter and assessed the lowest punishment, • there was no reversible error. 13. —Same—Charge of Court — Self-Defense—Place of Safety. Where, upon trial of murder, defendant was convicted of manslaughter, and it did not appear from the evidence that defendant after firing the first shots to relieve himself of illegal restraint had .reached a place of safety and voluntarily returned to the conflict, when he fired the fatal shot, the court should have submitted a charge on self-defense.
68 Tex. Crim. 35Ex Parte John Beal Sneed (1912)
The opinion states the case.
68 Tex. Crim. 38Foster v. State (1912)
The opinion states the case.
68 Tex. Crim. 44Shores v. State (1912)
The State proved that defendant passed the alleged forged check and was identified by the cashier of the bank; that the alleged signer of the check gave him no authority to execute the check in her name. The defendant attempted to show that the cheek was passed by some one else and that he was not the person that passed it on the cashier.
68 Tex. Crim. 45Tate v. State (1912)
1. — Rape—Evidence—Age of Prosecutrix. Upon trial of rape, it was reversible error to admit testimony to prove by general reputation tbe age of tbe prosecutrix. a. — Same—Charge of Court — ‘Age of Prosecutrix. Where, upon trial of rape, there was considerable evidence that tbe prosecutrix was born on a certain date which made her over fifteen years of age, the court should have submitted an affirmative charge in regard to this matter.
68 Tex. Crim. 47Hamilton v. State (1912)
Recognizance — Appeal Bond. Where, upon appeal from a conviction of a misdemeanor, the appellant entered into an appeal bond, after the adjournment of court instead of a recognizance during the term, the appeal must be dismissed.
68 Tex. Crim. 47Minter v. State (1912)
The opinion states the case.
68 Tex. Crim. 49Brinson v. State (1912)
1. — local Option — Statement of Facts — Bills of Exception. Where the statement of facts and bills of exception were not filed within time, in an appeal from a conviction of misdemeanor, the same can not be considered. 2. — Same—Jurisdiction—Recognizance—Custody. Where no entry of recognizance appeared in the record on appeal, and the same disclosed that appellant was not confined in jail, the appeal must be dismissed.
68 Tex. Crim. 51Johnson v. State (1912)
Bail Bond — Scire Facias — Judgment Nisi — Final Judgment — Discretion of Court. Where, upon an appeal from a judgment final on a bail bond, the record showed that the court under his discretion found that the principal in the bail bond wilfully and intentionally absented himself to prevent the trial of his case, there was no error in entering a final forfeiture on said bail bond, there being nothing to show that the trial court abused his discretion.
68 Tex. Crim. 53Williamson v. State (1912)
Scire Facias — Forfeiture of Bail Bond — Judgment Final. Article 500, Code Criminal Procedure, sets out specifically tbe causes that will exonerate the defendant and his sureties from liability upon a bail bond, and articles 501, 503, Code Criminal Procedure, provide as to the discretion of the court in remitting in whole or in part a forfeiture on said bond, and where the principal in said bond purposely and wilfully failed to make his appearance at the proper term of the court, there was no error in the court’s judgment in entering a full forfeiture of said bond and making same final.
68 Tex. Crim. 56Mitchell v. State (1912)
1. —'Disorderly House — Owner—Lessee—Insufficiency of the Evidence. Where, upon trial of permitting certain premises by owner or lessee to be used as a place in which prostitutes resorted, etc., there was no evidence to show any connection between the defendant and the owner or lessee of the building used as such place, the court should have submitted a charge that unless the jury found that the defendant was either the owner or lessee of said house, to acquit him. 2. —Same—Charge of Court — Circumstantial Evidence. Where the evidence was direct, there was no error in the court’s failure to submit a charge on circumstantial evidence.
68 Tex. Crim. 57Teasley v. State (1912)
Aggravated Assault — Deadly Weapon. — Sufficiency of the Evidence. Where, upon trial of assault to murder, the defendant was convicted of aggravated assault, and there was no direct evidence that the instrument used was a deadly weapon, but the evidence was sufficient to justify the jury in arriving at that conclusion, there was no error.
68 Tex. Crim. 58Wood v. State (1912)
1. —Murder—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence showed such circumstances as to raise the issue of manslaughter; that the injuries received by defendant caused pain and bloodshed and that there was a serious conflict between the parties, the court should have submitted a charge on manslaughter. 2. —Same—Rule Stated. Where a state of facts exists which is favorable to the defendant and would raise the issue of an inferior degree of homicide, the court’s failure to charge thereon is reversible error.
68 Tex. Crim. 62Cowden v. State (1912)
1. —Rape—General Reputation — Age—Evidence. Where, upon trial of rape, both mother and father testified positively as to the age of the prosecutrix, even though they testified differently thereto, it was reversible error to admit testimony that the witnesses were acquainted with the general reputation of the prosecuting witness in the community where she lived as to her age and this was that she was only thirteen years of age. 2. —Same—Rule Stated — Proof of Age — Hearsay. In a proper ease, where the mother and father are dead or beyond the jurisdiction of the court and the age of the prosecutrix is an issue, hearsay testimony is admissible if based on statements of the father and mother or other near relatives or persons who were in position to know; but not in a case where the parents have testified positively as to such age.
68 Tex. Crim. 63Kirby v. State (1912)
The opinion states the case.
68 Tex. Crim. 75Wren v. State (1912)
1. —Local Option — Charge of Court — Sale. Where there is an agreement to let one have property of any character and a delivery and acceptance of the property follows, a sale is made, and the law implies a promise to pay therefor a reasonable price. 2. —Same—Case Stated — Sufficiency of the Evidence — Sale—Charge of Court. Where the State’s testimony showed that defendant told the prosecutor that he would receive some whisky that day and asked him if he wanted some of it, that the prosecuting witness replied in the affirmative and defendant told him he would leave it for him at his brother’s blacksmith shop; that defendant got the whisky and afterwards paid defendant a dollar for it, all of which defendant denied, and asked the court to instruct the jury to find the defendant not guilty if they found that the money was not paid to him. Held, there was no error in the court’s refusal of this charge. 3. —Same—Testimony Drawn Out by Defendant. Where it appeared from the record on appeal that the testimony objected to was drawn out by defendant on cross-examination, there was no error in the court’s refusal to withdraw the same from the jury. Hollowing Hill v. State, 54 Texas Crim. Rep., 646. 4. —Same—Charge of Court — Order. Where, upon trial of a violation of the local option law, the evidence did not raise the issue that defendant ordered the whisky for the alleged purchaser, there was no error in the court’s refusal of a special charge thereon. 5. —Same—Special Charge — Bills of Exception. Where the defendant accepts the bills of exception as filed, and it did not appear therefrom that any exceptions were reserved to the charge of the court at the time of the delivery of the same, and no question was raised in the motion for new trial, there was no reversible error. 6. —Same—Argument of Counsel. Where, upon appeal from a conviction of a violation of the local option law, no exceptions appeared in the record or special charge to withdraw the argument of State’s counsel, there was no reversible error. 7. — Same—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law the evidence sustained a conviction and no error was pointed out in the charge of the court, the conviction was sustained. [Rehearing denied October 30, 1912. — Reporter.]
68 Tex. Crim. 78Montgomery v. State (1912)
The opinion states the case.
68 Tex. Crim. 88Ex Parte King (1912)
The opinion states the case.
68 Tex. Crim. 89Horn v. State (1912)
1. —Forgery—Voucher—Receipt—Indictment—Evidence. Where, upon trial of forgery, the instrument as set out in the indictment was a railroad voucher to the defendant with a blank receipt attached thereto for the defendant to sign, and the indictment alleged that the figures of this voucher providing for the payment of $5.20 had been fraudulently raised to $15.20 by the defendant, it was not necessary to allege that the defendant had signed this receipt, as the instrument was the subject of forgery without such signature, under article 925, Penal Code; nor was it necessary to prove that defendant had signed said receipt, and such instrument as altered was admissible in evidence. 2. —Same—Evidence—Payment—Circumstantial Evidence. Upon trial of forging a voucher on a certain railway company by raising the figures thereof, there was no error in permitting the cashier of the bank to testify that the voucher as altered had been paid by the bank; the evidence being circumstantial. 3. —Same—Evidence—Other Transactions. Upon trial of forgery -of a certain railway voucher, testimony was admissible that the bank had paid a number of such vouchers to defendant in person although it could not positively be shown that defendant presented this identical voucher. 4. —Same—Rule Stated — Circumstantial Evidence. In a case depending entirely upon circumstantial evidence, greater latitude is allowed in the presentation of evidence than when direct and positive testimony is relied on. Following Noftsinger v. State, 7 Texas Crim. App., 301. 5. —Same!—Evidence—Other Offenses — Contemporaneous Transaction. Upon trial of forgery of a certain railway voucher, it was error to introduce testimony that defendant had presented other forged vouchers for payment, not shown to have been contemporaneous with the transaction for which defendant was being prosecuted. 6. —Same—Evidence—Comparison of Handwriting. Upon trial of forgery of a railway voucher by defendant, it was reversible error to admit in evidence defendant’s bail bond, for the purpose of showing that the name of defendant as signed thereto was the same by comparison as the signature of the alleged voucher, without first proving that defendant had signed said bond. Following Phillips v. State, 6 Texas Crim. App., 364.
68 Tex. Crim. 93Sharp v. State (1912)
1. —Swindling—Misdemeanor—County Court — Statement of Facts — Bills of Exception. Where, upon appeal from a conviction of a misdemeanor tried in the County Court, the statement of facts and bills of exception were filed after the adjournment of said court without permission of said court, they must be stricken out on motion of the State. 2. —Same—Charge of Court — Statement of Facts — Presumption. In the absence of a statement of facts, the charge of the court being applicable to any state of facts that might be made by the testimony, it will be assumed that the trial court submitted the law of the case.
68 Tex. Crim. 94Drake v. State (1912)
1. —Incest—Confession—Evidence. Where, upon trial of incest, defendant’s written confession was in due form, and voluntarily made, there was no error in admitting same in evidence, under a proper charge. 2. —Same—Evidence—Penetration—Cross-Examination. Where, upon cross-examination, a medical expert testified, upon trial of incest, that prosecutrix’ hymen was not destroyed or punctured, etc., there was no error in permitting the State on re-examination to show that in the medical world it was known that there were cases where women had become pregnant without destruction of the hymen. 3. —Same—Irrelevant Testimony. Where defendant had declined to place a witness on the stand for whom he had moved for a continuance, there was no error in refusing testimony [Rehearing denied December 4, 1912. — Reporter.]
68 Tex. Crim. 99Cubine v. State (1912)
Local Option — Affidavit—Jurat—Amendment. Where the jurat to a complaint in the County Court was defective in not stating the year in which it was made, and the court upon request of the county attorney granted permission to the officer to amend and correct his jurat in this respect, there was no error. Following Scott. v. State, 9 Texas Crim. App., 434, and other eases.
68 Tex. Crim. 100Carver v. State (1912)
The opinion states the case. The indictment concluded “did then and there unlawfully sell to Ben Helton intoxicating liquor in violation of said law aforesaid, and which law aforesaid was then and there in full force and effect in said county, against the peace and dignity of the State.” The defendant contended that the indictment did not charge that the offense was committed against the peace and dignity of the State, but did charge that the law was in full force and effect…
68 Tex. Crim. 104Johnson v. State (1912)
Bigamy — Evidence—Former Wife — Defendant’s Declarations. Where, upon trial of bigamy, the only proof that defendant had a former living wife at the time he married his alleged present wife was the statement by defendant to several witnesses, without showing cohabitation and other circumstances, the conviction could not be sustained. Following Dumas v. State, 14 Texas Crim. App., 464, and other cases.
68 Tex. Crim. 105Woods v. State (1912)
X. — Sunday Law — Sale of Intoxicating Liquors — Sufficiency of the Evidence. Where, upon trial of a violation of the Sunday Law, by the sale of intoxicating liquors within the prohibited hours between twelve o’clock midnight Saturday until five o’clock a. m. of the following Monday, the evidence sustained the conviction, there was no error. 2. —Same—Evidence—Bill of Exceptions — License. Where, upon trial of selling intoxicating liquors during prohibited hours, the State was permitted 1,0 prove that the county clerk had issued a liquor license to the defendant, without proving its contents, there was no error; besides, the bill of exceptions was insufficient. 3. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions was not properly verified, the same could not be considered on appeal; besides, the evidence admitted as to the name of the defendant was properly admitted. 4. —Same—Evidence—Name of Defendant — Identity of the Defendant. Where, upon trial of selling intoxicating liquors during prohibited hours and on Sundays, it was shown by the clerk of the defendant that the place where the liquor was sold was owned and controlled by the defendant who had a license to sell the same during proper hours, and that the clerk attended to all saloon business for the defendant who got the money therefor; that defendant was usually present when sales were made, a finding by the jury that license ha'd been issued to defendant was thereby sustained, and there was no reversible error. 5. —Same'—Evidence—Identity of Defendant. Where defendant was indicted as Frank Woods, there was no error in admitting evidence that retail liquor dealer’s license was issued to J. F. Woods, it substantially appearing from the evidence that they were one and the same person. 6. —Same—Stub-Book—Evidence—Bill of Exceptions. Where, upon trial of selling intoxicating liquors on Sunday, the defendant objected to the introduction of a certain stub-book showing the issuance of liquor license, and defendant’s bill of exceptions did not show that the said stub-book or its contents was introduced in evidence, there was nothing to review. 7. —Same—Evidence—Witness Under the Rule — Discretion of Court. Where, upon trial of selling intoxicating liquors on Sunday, defendant contended that a certain witness was not placed under the rule, but it appeared that the answer of the witness could not have injured the defendant, there was no reversible error; besides, no abuse of discretion of the court was shown. 8. —Same—Evidence—Occupation. Upon trial of selling intoxicating liquors on Sunday, there was no error in the admission of testimony that defendant was running a saloon in the county of the prosecution; besides, the defendant introduced his clerk who testified to the same fact. 9. —Same—Evidence—Circumstance—Date of Offense. Upon trial of selling intoxicating liquors on Sunday, there was no error in the admission of testimony that the defendant’s saloon door was open on Sunday, but that the witness did not recollect whether it was church Sunday. 10. —Same—Evidence—Eixing Time of Offense. Upon trial of selling intoxicating liquors on Sunday, there was no reversible error in the State’s attorney’s question in order to fix the time, whether the witness remembered when certain persons were summoned before the grand jury, with reference to the time the witness saw the defendant’s saloon open, to which the witness answered that he did not know. 11. —Same—Evidence—Bill of Exceptions — Other Sales. Where the bill of exceptions did not disclose the status of the case with reference to the admission of testimony that the witness got a pint of whisky from defendant, the same could not be reviewed; besides, such testimony was admissible. 12. —Same—Local Option — Presumption—Burden of Proof. Upon trial of selling intoxicating liquors on Sunday under a retail liquor dealer’s license, it was not incumbent upon the State to prove that prohibition was not in force in the county of the prosecution; besides, the circumstances showed that prohibition was not in force in said county. The court can not presume that prohibition is in force in any county or subdivision thereof. 13. —Same’—Argument of Counsel — Bill of Exceptions. In the absence of a bill of exceptions a complaint to the argument of counsel can not be considered on appeal.
68 Tex. Crim. 113Edmondson v. State (1912)
The opinion states the case.
68 Tex. Crim. 115Robison v. State (1912)
The opinion states the case.
68 Tex. Crim. 117Sylvas v. State (1912)
The opinion states the case.
68 Tex. Crim. 119Bailey v. State (1912)
1. —Fornication—Charge of Court — Sufficiency of the Evidence — Corroboration — Accomplice. Where, upon trial of fornication, the defendant himself corroborated the prosecutrix on the question of having habitual carnal intercourse with her, and the main charge of the court substantially submitted defendant’s requested charges; the court’s charge on accomplice testimony, although not technically sufficient, was not reversible error, in the light of the evidence, under article 743, Code Criminal Procedure; no injury having been shown. 2. —Same—Character of Prosecutrix. Where defendant was prosecuted and convicted of fornication, the contention that prosecutrix was a prostitute, and that her reputation for virtue is bad, was no defense.
68 Tex. Crim. 122Giles v. State (1912)
The opinion states the case.
68 Tex. Crim. 124Shelton v. State (1912)
1. —Aggravated Assault — Charge of Court — Other Grounds of Aggravation. Where, upon trial of aggravated assault, the charge of the court submitted other grounds of aggravation and means of committing the assault than those charged in the information, the same was reversible error. 2. —Same—Charge of Court — Serious Bodily Injury. W^here, upon trial of aggravated assault, the information charged that the same was made by defendant by cutting the party injured with a knife, inflicting serious bodily injury, the court should have submitted a requested charge upon the meaning of serious bodily injury, as the court’s main charge did not cover this phase of the ease, and the evidence did not disclose that the injuries inflicted were of a serious nature. 3. —Same—Provoking Difficulty — Charge of Court. Where, upon trial of aggravated assault, the evidence did not raise the issue of provoking the difficulty, it was reversible error to submit a requested charge by the State on provoking the difficulty, to which defendant excepted.
68 Tex. Crim. 127Pistole v. State (1912)
1. —Practicing Veterinary Medicine — Statutes Construed — Police Power. Although the Act of the Thirty-Second Legislature, page 132, may be crude in some of its provisions, it is nevertheless, valid, and a conviction for unlawfully practicing and attempting to practice veterinary medicine, surgery, and dentistry .can be sustained thereunder; such legislation is within the police power of the State, and is reasonable in its provisions. 2. —Same—Title—Subject Matter. The title of the Act to regulate the practice of veterinary medicine, surgery and dentistry, etc., is in every way sufficient to embrace and authorize the various provisions thereof, under the Constitution of Texas and the decisions of the court thereunder. Following Watts v. State, 61 Texas Crim. Rep., 364, and other cases. 3. —Same—Constitutional Law — Equal and Uniform Taxation. Sections 1 and 2, article 8, Constitution of Texas, which require that taxation shall be equal and uniform, etc., have no application to the Act of the Thirty-Second Legislature regulating the practice of veterinary medicine, etc., as the same is a police, and not a tax measure. Following Ex parte Cramer, 62 Texas Crim. Rep., 11. 4. —Same—Constitutional Law — Police Power. The Act of the Thirty-Second Legislature, page 132, does not violate sections 17 and 19, article 1, Constitution of Texas and is merely a reasonable regulation to regulate the practice of veterinary medicine, etc. 5. —Same—Fourteenth. Amendment — Due Process of Law. The Act of the Thirty-Second Legislature, page 132, regulating the practice of veterinary medicine, etc., does not violate section 2 of article 4, of the Fourteenth Amendment of the Constitution of the United States, and is due process of law. 6. —Same—Police Power — Residence of State — Officers of the United States. Section 7 of the Act of the Thirty-Second Legislature, page 132, which • exempts certain residents of the State from the payment of the fee or license does not contravene the Constitution of the State or of the United States, and the clause exempting officers of the United States from its provisions is a valid and reasonable regulation. 7. —Same—Board of Examiners — Revoking License — Fraud. Section 11 of the Act of the Thirty-Second Legislature, page 132, regulating the practice of veterinary medicine, etc., which authorizes the board of examiners to revoke any license it has issued, upon evidence that it was secured by fraud, etc., is a reasonable and proper regulation; besides, even if such section was invalid, it would not affect the othef provisions of the Act. 8. —Same—Board of Examiners — School of Medicine. The contention that the board "of examiners under the Act of the Thirty-Second Legislature, regulating the practice of veterinary medicine, etc., consisted of only five members, and that three of them were graduates of ithe same school is untenable, and can neither affect the validity of the Act nor justify defendant in the violation thereof. 9. —Same—'Presumption—Executive Branch of Government. This court must presume that the Governor, who represents a co-ordinate branch of the Government, has acted in compliance with the law in the appointment of members of the board of examiners as provided under the Act of the Thirty-Second Legislature, page 132, regulating the practice of veterinary medicine, etc., it being shown by the record that said board existed legally under said Act. [Rehearing denied November 6, 1912. — Reporter.]
68 Tex. Crim. 136Baxter v. State (1912)
Theft — Continuance—Motion for New Trial. Where, upon conviction of theft, defendant attached to his motion for new trial the affidavit of the absent witnesses for which he had asked a continuance, and the testimony of said witnesses was material and probably true, the application for continuance should have been granted, although the diligence may not have been all the law required.
68 Tex. Crim. 138Willcox v. State (1912)
1. —Theft of Cattle — Continuance—Want of Diligence. Where the application for continuance showed on its face a clear want of diligence, the same was properly overruled. 2. —Same—Statement of Tacts — Bill of Exceptions. Where no order was granted for additional time in which to file statement of facts and bills of exception, and the bill of exceptions was filed long after the time authorized by the order of the court, the same could not be considered on appeal. 3. —Same—Verdict—Place of Confinement. Where the verdict of the jury found defendant guilty as charged in the indictment alleging cattle theft, and assessed his punishment at two years imprisonment, without stating place of confinement, and the court had properly submitted said offense to the jury, no other place except the penitentiary could have been intended by the jury, and the verdict was sufficient. 4. — Same—Sufficiency of the Evidence — Circumstantial Evidence — Charge of Court. Where, upon trial of theft of cattle, the evidence was sufficient to sustain the conviction, there was no error, and the same not being wholly circumstantial, the eourt’s failure to charge on circumstantial evidence was not reversible error.
68 Tex. Crim. 140Ex Parte M.M. Hewgley (1912)
From Bexar County. Original habeas corpus proceedings asking release from arrest, under a prosecution charging the relator with the sale of intoxicating liquors without license, in nonprohibition territory. The opinion states the case.
68 Tex. Crim. 144Stewart v. State (1912)
Unlawfully Cutting Timber — Statement of Facts. Where, upon appeal from a conviction of a misdemeanor, it appeared from the record that appellant had used all diligence authorized by law to secure a statment of facts and that it was not his fault that he was deprived of the same, the cause will be remanded for new trial.
68 Tex. Crim. 145Stevens v. State (1912)
Local Option — Evidence—Agency—Book Entries — Express Company. Where, upon trial of a violation of the local option law, the defendant introduced evidence that he acted as the agent of the purchaser of the alleged intoxicating liquors, it was reversible error to permit the State, in order to counteract this testimony, to introduce the entries in a certain book kept ■as the record of the express company shfowing certain consignments of liquor to a person of the same name as defendant, without showing any connection between said entries in said book and the defendant, or that he had written his name in said book or that the entries were correctly kept at the time they were -made. Distinguishing Stephens v. State, 63 Texas Crim. Rep., 382.
68 Tex. Crim. 147White v. State (1912)
1. —Assault to Rape — Recognizance. Where the appeal was dismissed on account of a defective recognizance, and thereafter a new recognizance in conformity with law was filed, the appeal is reinstated. Following Burton v. State, 48 Texas Crim. Rep., 544. 2. —Same—Aggravated Assault — Adult Male — Insufficiency of the Evidence. Where, upon appeal from a conviction of aggravated assault, the record did not show any evidence upon which to base a conclusion that the defendant was twenty-one years of age at the time of the alleged assault upon a female, the conviction can not be sustained. Following Davis v. State, 6 Texas Crim. App., 133, and other cases.
68 Tex. Crim. 149Zinn v. State (1912)
1. —Gaming—Statement of Facts — Filing. Where, upon appeal, the cause was affirmed because the statement of facts and bills of exception were filed after the adjournment of the county-court, but it was shown on motion for rehearing that the statement of facts was properly filed within time, the judgment of affirmance is set aside. 2. —Same—Information—Allegation—Pleading. Where the information did not present to the court that defendant had Violated the law, but only presented that there was an affidavit filed to the effect that the defendant committed the offense, the same was insufficient, and the prosecution must be dismissed.
68 Tex. Crim. 151Black v. State (1912)
Tried below before the Hon. W. C. Buford. Appeal from a conviction of pursuing the occupation of selling intoxicating liquors in local ojition territory; penalty, two .years imprisonment in the penitentiary. The opinion states the case.
68 Tex. Crim. 154Ward v. State (1912)
1. —Assault With Intent to Rape — Continuance—Want of Diligence. Where, upon trial of assault with intent to rape, the trial court was justified in holding that no. diligence was used to procure the attendance of the absent witness, and to believe that he was not present by the consent, if not the procurement, of defendant himself, for the very purpose of obtaining a continuance on account of his absence, the same was properly overruled, and there was no error, although this was the first application. 2. —Same—Sufficiency of the Evidence — Aggravated Assault. Where, upon trial of assault with intent to rape, the defendant was convicted of aggravated assault, and the evidence showed that the jury was justified in finding that the defendant committed an assault and battery upon the prosecutrix in the house and residence of her father, the conviction was sustained. 3. —Same-Charge of Court — Case Stated — Sufficiency of Evidence. Where, upon trial of assault with intent to rape and a conviction of aggravated assault, no charge on circumstantial evidence was requested and none was given, but a charge applicable to the facts in the ease was submitted and the evidence showed • an assault and battery, with intent to injure was committed by defendant upon prosecutrix in her father’s private residence, the conviction was sustained. 4. —Same—Definition of Assault and Battery — House of a Private Family— Intent to Injure. Under article 1008, Penal Code, it is expressly provided that the use of any unlawful violence upon the person of another with intent to injure him whatever be the means or degree of the violence used is an assault and battery, and under article 1009, id., the intent to injure is presumed when an injury is caused by violence to the person. 5. —Same—Aggravated Assault — House of a Private Family. Under article 1022, Penal Code, an assault or battery becomes aggravated when the person committing the offense goes into the house of a private family and is there guilty of an assault and battery, and the court did. therefore, not err to sumbit under the facts in the case a charge on aggravated assault. 6. —Same—Argument of Counsel — Bill of Exceptions. Where the bill of exceptions did not point out how the argument >of State’s counsel was objectionable except merely to complain of the language used, the same was insufficient; besides, no charge was requested to withdraw the alleged objectionable argument. 7. —Same—Argument of Counsel — Absence of Witness. A comment by State’s counsel upon the absence of defendant’s witness is not reversible error under the facts of this ease. 8. —Same—Special Charge — Motion for New Trial. Where a special charge is requested and refused by the court and the bill of exceptions fails to show why it should have been given, the same can not be considered on appeal. Following Ryan v. State, 64 Texas Orim. Rep., 628, and other eases. 9. —Same—Charge of Court — Misdemeanor. Unless the charge of the court is excepted to at the time and a special charge requested in writing, the same can not be reviewed on appeal in misdemeanor cases. 10. —Same—Assault to Rape — Aggravated Assault — Degrees of Offense. Where defendant was indicted for assault with intent to rape, etc., and convicted of aggravated assault, the contention that in the absence of allegations in the indictment that' an assault and battery was committed in a private residence the conviction could not be sustained is untenable under article 771, Code Criminal Procedure, which provides that the defendant can be convicted of any degree inferior to that charged in the indictment or information. 11. —Verdict—Statutes Construed. Under article 837, Code Criminal Procedure, a verdict is not contrary to the law and evidence where defendant is found guilty of an offense of an inferior grade to, but of the same nature as the offense proved. [Rehearing denied December 18, 1912. — Reporter.]
68 Tex. Crim. 162Shaffer v. State (1912)
The opinion states the case.
68 Tex. Crim. 175Pilgrim v. State (1912)
1. —Swindling—Ownership—Charge of Court — Variance. Where, upon trial of swindling, the indictment alleged that the certificate or life insurance policy was acquired from eight certain persons named and that the false representations were made to these eight persons, and that the right to issue said certificate or policy was in said eight persons, and the proof showed that said certificate or policy and the authority to issue same was in only one of said eight persons, the variance was fatal; the court requiring the jury in his charge to convict if they believed that the title and possession of said certificate or policy and the right and authority to issue same was in but one of said persons. 2. —Same—Evidence—Bill of Exceptions. Where the testimony objected to was admissible, the bill of exceptions thereto did not present reversible error. 3. —Same?—Charge of Court — Practice on Appeal. Where the complaint to certain paragraphs of the court’s charge were that they shifted the burden of proof, they need not be passed on, as the cause was remanded on other grounds.
68 Tex. Crim. 177Broadnax v. State (1912)
The opinion states the case.
68 Tex. Crim. 181Parker v. State (1912)
Local Option — Information-Date of Election — Amendment. Where the complaint and information did not allege the date prohibition was put in force in the county of the prosecution, and the defendant moved to quash same for this defect of form, which motion the court overruled, this was reversible error; although this matter was one of form and could have been amended. Following Hamilton v. State, 65 Texas Crim. Rep., 508, and other cases.
68 Tex. Crim. 181Coleman v. State (1912)
Robbery — Indictment. Where, upon trial of robbery the indictment followed approved precedent, there was no error.
68 Tex. Crim. 182Coleman v. State (1912)
The opinion states the case.
68 Tex. Crim. 184Hughes v. State (1912)
1. —Assault to Rape — Charge of Court — Threats—Force. Upon trial of assault with intent to rape, there was no injury to defendant’s right, if the court, in his charge in the general definition of the offense charged, mention threats, the submission being upon the theory iof force. 2. —Same—Requested Charges. In the absence of a statement of facts, the Appellate Court can not pass on the refusal of requested charges.
68 Tex. Crim. 185Rodriquez v. State (1912)
1. —Murder—Jury and Jury law — Bill of Exceptions. Where the complaint to the organization of the jury was not verified in any way and no bill of exceptions was reserved, the same could not be reviewed on appeal. 2. —Same1—Sufficiency of the Evidence. Where defendant was convicted of murder in the second degree and the evidence sustained a conviction for murder in the first degree, there was no error. 3. —Same—Charge of Court — Threats—Malice. Where, upon trial of murder, the court gave a charge on self-defense in connection with defendant’s special charge, which presented every theory of defense, there was no error in the court’s failure to' charge on threats, in view of the declaration of defendant that they would do one another up; which was admitted to show malice.
68 Tex. Crim. 185Whorton v. State (1912)
Tried below before the Hon. J. W. Patterson. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.
68 Tex. Crim. 187Whorton v. State (1912)Affirmed
1. Burglary (§ 41*) — Sufficiency of Evidence. * Evidence in a prosecution for burglary held sufficient to sustain a conviction. [Ed. Note. — For other cases, see Burglary,. Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.*]. 2. Criminal Law (§ 1169*) — Harmless Eb-bob — Admission of Evidence — Cube by Yeedict. In a prosecution for burglary, error, if any, in permitting evidence that defendant was-20 years of age, and that his companion was only 18, was harmless, where the jury assessed the minimum punishment. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3088, 3130, 3137-3143; . Dec. Dig. § 1169.*] 3. Criminal Law (§ 532*) — Confession— Admissibility of Evidence — Time. In a prosecution for burglary, the testimony of the owner of the store entered that, he heard, that his store had been burglarized,, given preliminary to proving a confession by defendant to witness, made the next morning,, was admissible as fixing the time. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1218; Dec. Dig. § 532.*] 4. Ceiminal Law (§ 829*) — Tbial — Requested Charges. Requested charges, which are fully covered by the main charge, are properly refused. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]' 5. BurglaRy (§ 28*) — Prosecution — Issues and Proof — Ownership. Under an indictment for burglary of a store alleged to belong to the prosecuting witness, proof that it was the store of the witness and his son was not error, where the witness testified that he was in charge of it. [Ed. Note. — For other cases, see Burglary,. Cent. Dig. §§ 67-78; Dee. Dig. § 28.*] 6. Burglary (§ 22*) — Prosecution and Indictment-Ownership. Where property is owned in common or jointly by two or more persons, an indictment for burglary may allege ownership to be in either or all of them. [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 55-61, 66; Dec. Dig. § 22.*.] 7. Criminal Law (§ 784*) — Trial —Instructions — Circumstantial Evidence. Where a witness in a burglary trial testified that defendant admitted to him that he was guilty of the offense, it was not necessary to charge on circumstantial evidence. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, I960; Dec. Dig. § 784.*]
68 Tex. Crim. 189Woolen v. State (1912)
1. —Local Option — Jury and Jury Law — Jury Commissioners — Indictment. Where, upon trial of a violation of the local option law, the grand jury which returned the indictment was drawn for the March term 1912, which was the second term after the appointment of the jury commissioners who drew the grand jurors, the indictment is void. 2. —Same—Jury Commissioners — Statutes Construed. The intentional disregard of the statutes by the district judge, requiring him to appoint jury commissioners to select grand jurors for each term of the court, is a violation of law, and the indictment found by the second grand jury summoned for the second term of court following their appointment is void. 3. —Same—Jury and Jury Law — Constitutional and Statutory Law. The intentional disregard of the district judge of the statute, requiring him to appoint jury commissioners at each term of the court to select juries for the next term of court is a violation of constitutional and statutory law; and the question is not one of expediency for the courts to determine. 4. —Same—Unintentional Oversight — Accident—Rule Stated. Oases have arisen and will arise where, upon some unintentional matter or oversight, or accident on the part of. the court or jury commissioners, or through instrumentalities of courts, a grand or petit jury, either or both have not been selected, and in such eases the court may be authorized to instruct the sheriff to summon the necessary jurors; but the trial judge can not intentionally ignore the statutes for appointing jury commissioners, etc.
68 Tex. Crim. 193Johnson v. State (1912)
The opinion states the case.
68 Tex. Crim. 195Spiller v. State (1912)
Robbery — Charge of Court — Aggravated Assault. Where the defense testimony, on a trial for robbery, raised the issue of a simple assault, and the testimony for the State justified a conviction for robbery, and the court’s charge submitted the issue of robbery and that of simple assault, a conviction for robbery was sustained, and there was no error in the court’s failure to charge on aggravated assault.
68 Tex. Crim. 197Edwards v. State (1912)
1. —Murder—Charge of Court — Manslaughter—Deadly Weapon. Where, upon trial of murder, it was shown that deceased threatened to strike defendant with an iron bar or rod of sufficient dimension to have inflicted death or serious bodily injury, the court in his charge on manslaughter should have applied it to these facts in reference to adequate cause, instead of leaving the jury to infer from such charge that deceased had drawn a deadly weapon. 2. —Same—Charge of Court — Article 676, White’s Penal Code — Presumption— Self-Defense. Where, upon trial of murder, the evidence showed that deceased made an attack upon defendant with an iron bar or rod, the court in his charge on self-defense should have charged, under article 676, White’s Penal Code, that if the facts reasonably indicated from defendant’s standpoint, an intention on the part of the deceased to murder, maim, Or disfigure defendant, etc., it was presumed that the deceased designed to inflict such injury; anil a charge to acquit defendant if he believed Ms life was in danger was insufficient. 3. — Same—Charge of Court — Abandonment of Difficulty — Self-Defense. , Where, upon trial of murder, the evidence showed that defendant had abandoned the difficulty, the court should have charged that his perfect right of self-defense was thereby revived.
68 Tex. Crim. 200Galan v. State (1912)
1. —Murder—Statement of Tacts. Where the statement of facts was not approved by the trial judge, the same could not be considered on appeal. 2. —Same—Bill of Exceptions — Practice on Appeal. Where the bill of exceptions was refused by the trial judge, it can not be considered on appeal. 3. —Same—Jury aud Jury Law — Separation of Jury — Bill of Exceptions. Where the trial judge qualified the bill of exceptions, as to the separation of the jurors, that every juror was constantly within the sight and hearing of an officer and within the immediate view and surveillance of the court, and it was not shown that the jurors talked to anyone, there was no error. 4. —Same—"Witness—Officer in Charge of Jury — Rule—Waiver. Upon trial of murder, there was no error to permit the sheriff, although a witness in the case, to accompany the jury, there being no showing that the officer attempted to influence the jury; nor was there any error in not placing the sheriff under the rule; besides, the defendant had waived this. 5. —Same—Jury and Jury Law — Separation of Jury — Remarks by Sheriff. Where, upon trial of murder, one of the jurors started to the toilet, but was immediately recalled and the sheriff remarked, “Gentlemen, you must all remain together, this is San Antonio rules;” whereupon the court instructed the jury not to consider this remark, there was no reversible error, although the sheriff’s conduct was improper. 6. —Same—Charge of Court — Dying Declarations — Bill of Exceptions. Where the bill of exceptions did not show that the deceased’s mind, at the time he made the declarations, was so affected as to make his declarations inadmissible, the same was insufficient, and the complaint therein that the evidence called for a charge upon dying declarations and the sanity of deceased, etc., could not be considered on appeal. 7. —Same—Charge of Court — Justifiable Homicide — Bill of Exceptions. Where defendant objected to the charge of the court because it did not submit the question of justifiable homicide when committed to prevent a felony, and the bill of exceptions, in the absence of a statement of facts, did not state all the evidence bearing upon that question, the same could not be considered on appeal. 8. —Same—Communicated Threats — Charge of Court — Bill of Exceptions. Where, in the absence of a statement of facts, defendant’s bill of exceptions failed to allege all the evidence bearing upon the question of communicated threats, an objection that the court should have charged thereon can not be considered on appeal.
68 Tex. Crim. 205Barrett v. State (1912)
1. —Scire Facias — Bail Bond — Felony—Variance. Where the bail bond stipulated that defendant should appear to answer an indictment charging him with a felony, and the judgment nisi read that the indictment charged defendant with the offense of a felony, to wit, burglary, there was no variance. 2. —Same—Description, of Offense — Bail Bond. Since the amendment of the Code Criminal Procedure in 1899, the law provides that it is only necessary that the bond state that defendant is charged with a felony, and it is not necessary to state therein the elements of the offense. Following Hannon v. State, 48 Texas Crim. Rep., 199, and other cases. 3. —Same—Time of Appearance — Date—Time and Place. Where the bail bond required the defendant to appear at the next term of the District Court, on , the 11th day of September, -1911, the court being in session when said bond was taken, and said 11th day of September was a day of that term, the bond, nevertheless, correctly stated the time and place at which defendant was required to appear, under article 321, Revised Code Criminal Procedure, and the words, “next term of eourt,” did not govern in fixing the date of appearance. 4. —Same—Procedure—Civil Action. Under article 962, Revised Code Criminal Procedure, the proceedings in scire facias cases shall be regulated by those governing civil actions and the date in the alleged bail bond could not mislead anyone, and could not render the obligation void. Distinguishing Thomas v. State, 12 Texas Crim. App., 416; Burnett v. State, 18 Texas Crim. App., 283; Heath v. State, 14 Texas Crim. App., 213; Wagner v. State, 28 Texas Crim. App., 419. [Rehearing denied December 11, 1912. — Reporter.]
68 Tex. Crim. 208Harris v. State (1912)
1. — Robbery—Impeaching- Testimony. Impeaching testimony is not of sufficient probative force upon which to base a verdict, and under such a state of facts, an affirmative charge is not necessary. Following Dunagin v. State, 38 Texas Crim. Rep., 614. 2. —Same—Other Transactions. Where, upon trial of robbery, the defendant, on cross-examination, elicited the fact that the witness claimed defendant had also robbed him at another time and place, in order to prove contradictory statements in regard to this latter transaction, there was no error in the court’s failure to limit the purposes for which this testimony was admitted, the court limiting the offense to the one charged in the indictment. 3. —Same—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence sustained the conviction, there was no reversible error. [Rehearing denied November 13, 1912. — Reporter.]
68 Tex. Crim. 210Burns v. State (1912)
1. — Murder—Mutual Combat — Sufficiency of the. Evidence. Where, upon trial of murder, the defendant was convicted of manslaughter, and the evidence showed that the parties met by agreement to engage in a mutual combat, the conviction was sustained. ¡2. — Same—Evidence—Res Gestate. Where, upon trial of murder, the defendant and his brother were jointly indicted, but tried separately, and the evidence showed fhat they acted together at the time of the commission of the offense, there was no error to admit testimony that the brother of the defendant within about a hundred yards of the killing upon leaving the scene of the homicide at full speed, waived his gun and hallowed. 3. —Same—Verdict—Words and Phrases. •Where the word “thee,” could be readily read as “three,” and the word was so pronounced at the reading of the verdict, and sentence duly entered thereafter, there was no reversible error. 4. —Same—Charge of Court — Mutual Combat. Where, upon trial of murder and a conviction of manslaughter, Ihe evidence showed a mutual combat, there was no error in the court’s submission of this issue, and that if the jury so found that the appellant could not claim self-defense. 5. —Same—Charge of Court — Abandonment.» Where, upon trial of murder, there was evidence of an abandonment by defendant of mutual combat, the court properly instructed the jury that thereby he would not forfeit his right of self-defense. 6. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no error. [Rehearing denied March 13; 1912. — Reporter.]
68 Tex. Crim. 214Weaver v. State (1912)
1. —Burglary—Continuance—Want of Diligence. Where, upon trial of burglary,'defendant’s fourth application for Continuance showed a want of diligence in securing the absent witness, and it did 'not appear that his whereabouts was then known or that defendant had made serious effort to learn, there was no error in overruling the motion. 2. —Same—Evidence—Opinion of Witness. Where the witness had testified to the time that he saw the defendant at the hotel and the State’s witness had testified the time his house was entered, and the distance between the two places was shown, it was a question for the jury, and not for the witness, whether defendant could make the trip in the intervening time. 3. —Same—Evidence—Credibility of Witness. Upon trial of burglary, there was no error in asking defendant on the witness stand if he knew of any reason why prosecuting witness would have had him arrested unless it was because he entered his house, to which the defendant answered in the negative. Following Pope v. State, 65 Texas Crim. Rep., 51. 4. —Same—Evidence—Cross-examination. Where, upon trial of burglary, the defendant testified that he was selling a certain medicine and did not know he had to have a license, the State could show, on cross-examination, that 'he knew he ought to have obtained such license, to test his credibility. 5. —Same—Evidence—Identification. Upon trial of burglary, where the owners of the burglarized house had identified defendant as the person who entered their house, and after counsel for defendant on cross-examination endeavored to break down the testimony of said witnesses as to the identification of defendant, there was no error in permitting these witnesses to testify that the day after the burglary they were called to the police station and there again identified the defendant. Following Reddick v. State, 41 Texas Crim. Rep., 120; Bowen v. State, 47 Texas Crim. Rep., 137, and other cases. 6. —Same—Buie Stated — Corroboration. A Witness may detail all facts within his personal knowledge bearing on the identification of the defendant, but other persons cannot be called to corroborate such witness as to prior statements or identification, unless it is sought to impeach the witness in some of the ways known to the law. 7. —Same—Evidence—Identification—Appearance of Defendant. Upon trial of burglary, where the defendant was identified as the burglar by the State’s witnesses and it developed on the trial that the appearance of defendant had in a measure been changed, by a change of clothes, etc., there was no error in admitting evidence by these same witnesses that they afterwards identified defendant at the police station. Following Young v. State, 49 Texas Crim. Rep., 207. 8. —Same—Alibi—Charge of Court. "Where the court’s charge on alibi was in accordance with the form frequently approved by this court, there was no error. ■ [Rehearing denied November 13, 1912. — Reporter.]
68 Tex. Crim. 221Pettis v. State (1912)
The opinion states the case.
68 Tex. Crim. 228Love v. State (1912)
1. —Assault to Rape — Charge of Court — Specific Intent — Female Under Age of Consent. Where, upon trial of an assault with intent to rape upon a female under the age of consent, the court fully and clearly submitted the law to the jury and instructed them that they must find beyond a reasonable doubt that defendant had the specific intent to commit rape at the time of the alleged assault, and also upon the question of aggravated assault, and the charge was more favorable than the law authorized, although some of the words were omitted inadvertently that might have been used, and no injury resulted to defendant, there was no reversible error under Article 743, Code Criminal Procedure. Distinguishing Cromeans v. State, 59 Texas Crim. Rep., 611. 2. —Same—Requested Charges — Intent—Force. Where part of the requested charge was embraced in the court’s main charge, with reference to the specific intent to commit rape, and that with reference to force was not the law of the case, there was no error in refusing same. Following Hightower v. State, 65 Texas Crim. Rep., 323. 3. —Same—Evidence—Circumstances. Where, upon trial of assault with intent to commit rape, other witnesses had testified that a certain State’s witness was a minister of the gospel, without objection, there was no error in admitting further testimony to this effect; besides, it was proper by this testimony to show why the defendant knew the prosecutrix, etc. 4. —Same—Evidence—Complaint by Prosecutrix. Where, upon trial of rape, the State was permitted to show by the mother of the prosecutrix that the latter complained to her about defendant’s assault two or three days thereafter, and the court afterwards withdrew said testimony, there was no error as like testimony had already been admitted without objection, besides, the above testimony was admissible in the first instance. 5. —Same—Evidence—Flight. Upon trial of assault with intent to rape, there was no error in permitting the officer to testify what efforts he had made in locating the defendant, and offering reward after he had fled the country. 6. —Same—Argument of Counsel. Where, upon trial of assault with intent to rape, the bill of exceptions to the argument of State’s counsel did not present the matter so that the Appellate Court could pass thereon, and did not request special instructions to withdraw same, there was no reversible error. 7. —Same—Sufficiency of the Evidence. Where, upon trial of assault with intent to rape, the evidence was sufficient to sustain the conviction, there was no error in the court’s refusal to submit a peremptory charge to find defendant not guilty. 8. —Same—Specific Intent to Rape. Where, upon trial of assault with intent to rape, the jury was authorized to believe from all the facts and circumstances in evidence that at the time the defendant committed the alleged assault upon a female under the age of consent he had the specific intent then and there to have carnal knowledge of her, and the court properly submitted this issue to" them, the conviction is sustained. See opinion for facts showing a specific intent on the part of the defendant to commit rape upon a female under the age of consent.
68 Tex. Crim. 238Overstreet v. State (1912)
The opinion states the case.
68 Tex. Crim. 243Robertson v. State (1912)
The opinion states the case.
68 Tex. Crim. 250Clay v. State (1911)
The opinion states the case.
68 Tex. Crim. 252Yoakum v. State (1912)
Tried below before the Hon. W. F. Whitehurst. Appeal from a conviction of swindling; penalty, a fine of $100 and six months confinement in the county jail.
68 Tex. Crim. 252Johnson v. State (1912)
1. —Robbery—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence was sufficient to sustain the conviction, there was no error. 2. —Same—Newly Discovered Evidence. Where, upon trial of robbery,, the alleged newly discovered evidence was known to defendant and his counsel before the trial, there was no reversible error. [Behearing denied November 20, 1912. — Beporter.]-
68 Tex. Crim. 254Yoakum v. State (1912)Affirmed
1. Okiminal Law (§§, 1095, 1102*) — Appeal — Bill op Exceptions — Filing After Adjournment — Permission. A statement of facts and bills of exception filed after adjournment of the court without any order authorizing or permitting the same to be so filed is invalid, and renders the statement and bills subject to a motion to strike. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. §§ 1095, 1102.*] 2. False Pretenses (§ 26*) — “Swindling”— What Constitutes. Where an indictment charged that defendant, in order to obtain $10 frpm prosecutor, represented that he was the owner of certain real estate in El Paso county, Tex., and by means of false pretenses and fraudulent representations induced prosecutor to exchange such sum for an instrument purporting to be a conveyance of the land described, and by such false pretenses prosecutor was induced to-part and did part with the possession of the money to accused, when, in fact, accused did not own the land or have the right to sell the same, or make a valid deed thereto, etc., sufficiently charged the crime of swindling within Pen. Code 1911, art. 1421, defining swindling-to constitute the acquisition of money by means-of some false or deceitful device or fraudulent representation with intent to appropriate the-same to the use of the party so acquiring it; [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 31; Dec. Dig. § 26.* For other definitions, see Words and Phrases,vol. 8, pp. 6839-6841.] 3. False Pretenses (§ 11*) — Swindling — Land. The crime of swindling or obtaining money by false pretenses defined by Pen. Code 1911,. art. 1421, may be committed by the use of false-pretenses with reference to real, as well as personal, property. [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 15; Dec. Dig. § 11.*] 4. Criminal Law (§ 92*) — Jurisdiction— County Court. Where an indictment for swindling alleged that defendant acquired certain money from prosecutor by false representations as to defendant’s ownership of certain land, and Ms.right to convey the same by deed, when, in fact, he had no title to or right to convey the land, the title to the land was not “involved”' in the trial of such cáse so as to deprive the county court of jurisdiction to try the same within the constitutional provision giving to the district court exclusive jurisdiction to try title to land. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 137-166; Dec. Dig. § 92.*]'
68 Tex. Crim. 257Lyster v. State (1912)
Carrying Pistol — Statement of Facts — Practice on Appeal. Where, upon appeal from a conviction of unlawfully carrying a pistol, the record showed that appellant's counsel had used proper diligence in preparing a statement of facts and bills of exception, and that he was not at fault that the same was not properly approved and filed or that one was not prepared by the trial judge, the cause must be reversed.
68 Tex. Crim. 259Davis v. State (1912)
1. —Gaming—Knowingly Permitting Gaming — Control of House. Where defendant was charged with unlawfully and knowingly permitting property to be used as a place for people to resort, to bet and wager upon certain games played with dice and cards, and the evidence showed that while the house was the residence of another party, that defendant, an unmarried man, was staying at said house during the absence of said owner, and permitted it to become a resort for the purposes of gambling, the conviction was sustained. 2. —Same—Indictment—Negative Allegations — Private Residence. Where, upon trial of unlawfully permitting gaming in a house under defendant’s control, the evidence showed that it was not a private residence occupied by a family at the time the gaming took place, it was not necessary to negative in the indictment that the house was a private residence, or allege that it was a private residence commonly resorted to for gambling. 3. —Same—Requested Charge — Permitting Gaming. Where it was shown that on more than one occasion the defendant engaged in gambling with others at a house under his control, this in law would be construed to be permission for these others to gamble there, and there was no error in refusing a special charge to the contrary. 4. —Same—Requested Charge. Where there was no evidence upon which the requested charges could be based, there was no error in refusing them. 5. —Same—Charge of Court — Consent. Where there was evidence that defendant engaged in games with others at a house under his control, the mere fact that just before the grand jury met the defendant requested these parties to stop gambling, would not show that the gambling on prior occasions was without his consent, and there was no error in refusing a special charge thereon. 6. —Same—Reading Law to Court — Discretion of Court. Where the record showed that no law was read by State’s counsel to the jury, but only to the court prior to the preparation of his charge, there was no error. 7. —Same—Harmless Error — Evidence. Where, upon trial of unlawfully and knowingly permitting gambling in a house under defendant’s control, testimony was admitted that witness had never known defendant to do any work, etc., the same was harmless error, the minimum punishment being assessed. 8. —Same—Motion in Arrest of Judgment — Indictment. Upon trial of knowingly permitting a certain house under defendant’s control to be used for gambling, it was not necessary under Article 559, Penal Code, to describe the premises in which the gaming took place, nor that the same-was used for retailing liquors, etc.
68 Tex. Crim. 262Curry v. State (1912)
1. —Seduction—Reproduction of Testimony. Upon trial of seduction, there was no error in admitting'in evidence the written testimony of the prosecutrix who had been cross-examined by the defendant and who had since died, said testimony having been taken down in the examining trial and the substance thereof written down. 2. —Same—Evidence—Circumstantial Evidence. The faet that the prosecutrix was unmarried at the time of the alleged seduction may be shown by circumstances as well as by direct testimony. 3. —Same—Evidence—Corroboration. Where, upon trial of seduction, the testimony of the prosecutrix was not corroborated as required by law, the conviction could not be sustained. See opinion as to what character of corroborating testimony is necessary in cases of seduction.
68 Tex. Crim. 265Simpson v. State (1912)
The opinion states the case.
68 Tex. Crim. 266Coggins v. State (1912)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence was circumstantial and defendant offered no explanation of his possession of part of the property which was.taken from the'house burglariously entered, and the court submitted a proper charge, there was no error. 2. —Same—Charge of Court — Principals. Where the evidence clearly disclosed that two persons participated in the alleged burglary, the court properly charged on the law of principals. 3. —Same—Charge of Court — Arrest—Bill of Exceptions. Where the bill of exceptions did not disclose that the testimony as to defendant’s explanation was objected to on any ground, and no special charge was requested, there was no error in the court’s failure to instruct the jury as to whether defendant was under arrest at the time he made explanation; besides, the bill showed that defendant was not under arrest. 4. —Same—Remarks by Court. Where the language of the trial judge was not such as to present cause for reversal, there was no reversible error. 5. —Same—Bill of Exceptions — Practice on Appeal. Where no bills of exceptions were reserved to the introduction of testimony, the matter cannot be reviewed on appeal. 6. —Same—Charge of Court — Explanation—Recently Stolen Property. Where the defendant offered no testimony, in explanation of the possession of property recently stolen during the alleged burglary, that he had purchased same, and it was shown that his explanation, that such property was not that recently stolen, was absolutely untrue, there was no error in the court’s failure to charge on defendants explanation of possession of recently stolen property.
68 Tex. Crim. 269Brown v. State (1912)
1. —Private Bank — Illegal Deposit — Indictment—Owner—Agent. Where, upon trial of unlawfully receiving an illegal deposit by a private bank, the indictment failed to allege that the defendant was either the owner, agent or manager of said bank, and failed to allege the names of any owner of the bank, but simply alleged that the defendant was the president of said bank, and failed to allege that the owners of said bank were insolvent or in failing circumstances at the time the alleged money was received on-deposit and that defendant knew these facts, the same was insufficient. 2. —Same—Accomplice—Charge of Court. Where, upon trial of an illegal deposit in a private bank, the testimony revealed that one of the State's witnesses was an accomplice, and the court failed to submit a charge on accomplice testimony, there was reversible error. 3. —Same—Charge of Court — Solvency. Upon trial of receiving an illegal deposit in a private bank, the court should have submitted a charge in regard to the question of solvency or insolvency by which-the jury might have determined that question. Following Fleming v. State, 62 Texas Crim. Kep., 653. 4. —Same—Evidence—Date of Offense. Where defendant was charged with having received an illegal deposit on a certain day, it was error in admitting testimony to show that deposits were made on a date long before the date.alleged in the indictment.
68 Tex. Crim. 275Wagoner v. State (1912)
The opinion states the case.
68 Tex. Crim. 276Mayfield v. State (1912)
Assault to Murder — Jury Commissioners. There is no authority of law for the eourt to order a jury commission to summons a grand jury for any cither than the next or succeeding term of court; and where the jury commissioners were ordered to summons grand jurors for the three succeeding terms of eourt, and defendant was indicted by a grand jury summoned for the second term after the order was made, the prosecution must be dismissed.
68 Tex. Crim. 276Wells v. State (1912)
The opinion states the case.
68 Tex. Crim. 277Wells v. State (1912)
The opinion states the case.
68 Tex. Crim. 278Height v. State (1912)
1. —Theft—Bailment—Contract of Hiring — Piano. Where, upon trial of theft under bailment, the evidence showed that the owner of the alleged piano let defendant have the same for the use of his child, this constituted a bailment of hiring. Following Neel v. State, 33 Texas Crim. Rep., 408. 2. —Value—Charge of Court — Harmless Error — Article 743 C. C. P, Where, upon trial of theft under bailment, it appeared from the evidence beyond controversy that the property alleged to have been stolen was worth more than $50, the failure of the court to submit this issue of value was harmless error, under Article 743, Code Criminal Procedure. 3. —Same—Fraudulent Conversion. Where, upon trial of theft under bailment, the evidence was sufficient to show that defendant fraudulently converted the alleged property, etc., there was no error. 4. —Same—Charge of Court — Sufficiency of the Evidence. Where, upon trial of theft of property under bailment, the evidence clearly showed that defendant, without the knowledge or consent of the owner removed the alleged property from the county of the prosecution to New Mexico under such circumstances as to show a frarrdulent conversion, and the court submitted in his charge all the defensive theories of defendant, and properly charged the jury on the facts, there was no error in refusing certain requested charges which were either covered by the main charge or wpre not applicable to the facts. 5. —Same—Newly Discovered Evidence. Where the alleged newly discovered evidence did not meet the requirements of the law to entitle defendant to a new trial on that account, there was no reversible error. [Rehearing denied November 20, 1912. — Reporter.]
68 Tex. Crim. 282Stevens v. State (1912)
The opinion states the case.
68 Tex. Crim. 288Alanis v. State (1912)
The opinion states the case.
68 Tex. Crim. 290Clary v. State (1912)
The opinion states the case.
68 Tex. Crim. 292Willis v. State (1912)
The opinion states the case.
68 Tex. Crim. 295Burford v. State (1912)
The opinion states the case.
68 Tex. Crim. 297Fisher v. State (1912)
Aggravated Assault — Deadly Weapon. Where, upon trial of aggravated assault with a deadly weapon, the evidence showed that the wounds inflicted were not serious, and there was no evidence that the instrument used, to-wit, a certain saw, was a deadly weapon in itself, the conviction could not be sustained.
68 Tex. Crim. 299Bush v. State (1912)
1. —Selling Intoxicating Liquors Without License — Recognizance. Where the appeal was dismissed on account of an insufficient recognizance, but a sufficient recognizance was filed thereafter, the appeal will be reinstated. 2. —Same—Charge of Court — Accomplice. Where, upon trial of retailing intoxicating liquors without license in non-local option territory, the evidence showed that two of the-State’s witnesses were accomplices, a failure to charge on accomplice testimony as requested was reversible error. 3. —Same—As to Who Are Accomplices. Where, upon trial of retailing intoxicating liquors without license, the evidence showed that two of the State’s witnesses upon whose testimony the conviction rested had agreed with the sheriff at the rate of three dollars per day to find violators of the liquor law, and that they induced defendant to sell liquor to them without having license to retail liquor in non-local option territory, they were accomplices and the court should have submitted the question of accomplice testimony. 4. —Same—Rule State. Where a. party receives money for the purpose of inaugurating and bringing about violations of the law, and in accordance with such agreement, brings about such violation, he is an accomplice. 5. —Same—Distinction Drawn. There is a distinction between parties who are playing the role of detective for the arrest and punishment of parties, and those who originate the crime or assist in originating it in the first instance; the latter are accomplices, while the former are not.
68 Tex. Crim. 303Gage v. State (1912)
The opinion states the case.
68 Tex. Crim. 311Pinson v. State (1912)
The opinion states the case.
68 Tex. Crim. 315Walker v. State (1912)
The opinion states the case.
68 Tex. Crim. 317Kelly v. State (1912)
The opinion states the case.
68 Tex. Crim. 331Duckett v. State (1912)
The opinion states the case.
68 Tex. Crim. 343Carpenter v. State (1912)
1. —Carrying Pistol — Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence sustained the conviction, there was no error. 2. —Same—Deputy—Want of Authority. Where the defendant claimed that he had authority to carry the alleged pistol, but the evidence showed that he had no such authority, and the court, nevertheless, submitted this issue to the jury, who found against the defendant, there was no error. 3. —Same—Imminent Danger. Where, upon trial of unlawfully carrying a pistol, the defendant claimed that he was in imminent danger of an attack, etc., but the evidence failed to support his contention, and the court, nevertheless, submitted this issue to the jury, who found against him, the conviction was sustained. 4. —Same—Harmless Error — Charge of Court. Where, upon trial of unlawfully carrying a pistol, there was no evidence that defendant had not been called on by an officer to assist in suppressing an unlawful assembly, the court should not have charged thereon; but in view of the fact that the evidence sustained the conviction under other portions of the court's charge, and that no injury resulted to defendant, there was no reversible error.
68 Tex. Crim. 346Walker 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—Bills of Exception. Where the bills of exception were insufficient under the rules of this court, the same will not be considered on appeal. 3. —Same—Jury and Jury Law — Challenge for Cause. Where defendant did not exhaust his peremptory challenges and no objectionable juror sat upon his ease, there was no error, even if the court should have sustained defendant’s challenges for cause. 4. —Same—Evidence—Identification. Where the testimony with reference to the- identification of the alleged stolen goods went to the weight and not the admissibility of the evidence, there was no error; besides, the identification as to the stolen goods was complete by other testimony. 5. —Same—Evidence—Description of Breaking. Where the State’s witness was allowed to illustrate before the jury, with a stick, the condition of the bar and door to the burglarized house, but was not permitted to state as to what another witness had told him with reference to such condition, there was no error. 6. —Same—Extraneous Offenses — Evidence. Upon trial of burglary, there was no error in the court’s refusal to admit testimony as to extraneous crimes committed by a co-defendant which were not connected with the ease on trial. 7. —Same—Charge of Court — General Objections. Where the objections to the court’s charge were not specific in pointing out any alleged error therein, they cannot be considered on appeal; besides, the court’s charge was correct. 8. —Same—Charge of Court — Principals. Where, upon trial of burglary, the evidence raised the issue of principals, the court correctly charged on such issue. 9. —Same—Recent Possession — Charge of. Court. Where the court’s charge on the possession of property recently stolen followed approved precedent, there was no error.
68 Tex. Crim. 351Morse v. State (1913)
The opinion states the case.
68 Tex. Crim. 354Collins v. State (1913)
The opinion states the case.
68 Tex. Crim. 358Vivian v. State (1913)
1. —Assault to Eape — Charge of Court — Affirmative Defense. Where, upon trial of assault to rape,' it was shown by the evidence that defendant assaulted prosecutrix and attempted to have sexual intercourse with her, the question as to what hour of the day it occurred did not raise an affirmative defense, and there was no error in the court’s failure to charge on this phase of the case, as the charge of the court properly applied the law to the facts and instructed the jury to acquit defendant if they had a reasonable doubt of his guilt. 2. —Same—Charge of Court — Ability to Commit an Assault. Where, upon trial of assault with intent to rape, the State proved the assault, but the defendant contended that he was not at the place where the offense occurred at the hour of the day the witnesses fixed said assault, and the question as to the exact time or the hour of the day when said assault was committed was indefinite, there was no error in the court’s failure to instruct the jury that the defendant must have been within such distance of the prosecutrix as to place it within his power to commit a battery. Articles 1012 and 1008, Penal Code. 3. —Same—Charge of Court — Sufficiency of the Evidence. Where, upon trial of assault with intent to rape, the evidence sustained the conviction of aggravated assault, and the court submitted both the issue of assault with intent to rape and aggravated assault, there was no error.
68 Tex. Crim. 363Hamilton v. State (1913)
The opinion states the case.
68 Tex. Crim. 365Fenoglio v. State (1913)
1. —Local Option — Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no error. 2. —Same—Charge of Court — Requested Charges. Where the requested charges were sufficiently represented in the court’s main charge, there was no error.
68 Tex. Crim. 366Fennell v. State (1913)
Theft — Sufficiency of the Evidence — Explanation. Where, upon trial of theft, the evidence was sufficient to sustain the conviction, and the court’s charge on explanation of defendant’s possession applied to the facts, there was no error. [Rehearing denied February 5, 1913. — Reporter.]
68 Tex. Crim. 367Cukierski v. State (1913)
The opinion states the case.
68 Tex. Crim. 373Shed v. State (1913)
The opinion states the case.
68 Tex. Crim. 376Ware v. State (1913)
1. —Murder—Charge of Court — Provoking Difficulty. Where, upon trial of murder, the court’s charge on provoking the difficulty did not inform the jury that the defendant must do some act or say something that was calculated to provoke the difficulty, the same was insufficient; besides, the court should have submitted the issue that the deceased provoked, the difficulty. 2. —Same—Abandonment of Difficulty. Where, upon trial of murder, the court submitted the issue of provoking the difficulty and there was evidence of defendant’s abandonment of the difficulty, this issue should have been submitted in a proper charge. 3. —Same—Threats—Self-defense. Where, upon trial of murder, the court in his charge confused the law of self-defense with the law of threats and did not submit these issues in a separate charge, the same was reversible error. 4. —Same—Charge of Court — Manslaughter—Adequate Cause. Wherever the adequate cause is statutory, the jury are not the judges as to whether there is a sufficient provocation or not, and where the court’s charge on manslaughter blended the statutory adequate cause with the other facts, and made the jury the judges as to whether or not there was a sufficient provocation, the same was reversible error. 5. — Same—Bill of Exceptions — Practice on Appeal. Where the bill of exceptions with reference to the introduction of testimony was filed too late, the same cannot be considered on appeal.
68 Tex. Crim. 382Wisnoski v. State (1913)
The opinion states the case.
68 Tex. Crim. 387Ex Parte J. Brewer (1913)
From Dallas County. Original habeas corpus asking- release from arrest under a violation of the city ordinance of tbe City of Dallas with reference to closing pool halls. The opinion states the case.
68 Tex. Crim. 400Davis v. State (1913)
The opinion states the case.
68 Tex. Crim. 410McDonald and Harper v. State (1913)
1. —Burglary—"<Tenue—Statutes Construed. Article 938, Code Criminal Procedure, requires that this court shall presume that the venue is proven in the court below unless it is made an issue in the court below, and it affirmatively appears to the contrary by proper bill of exceptions, and in the absence of such bill, there is nothing to review. 2. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained the conviction, there was no error. 3. —Same—Charge of Court — Exculpatory Admissions. Where, upon appeal from a conviction of burglary, it appeared from the reeord that no exculpatory confessions were introduced in evidence by the State, there was no error in the court’s failure to charge thereon; besides, this point is not presented by appellant’s brief.
68 Tex. Crim. 414Oliver v. State (1913)
The opinion states the case.
68 Tex. Crim. 417Shanklin v. State (1913)
The opinion states the case.
68 Tex. Crim. 419Hamilton v. State (1913)
1. —Incest—Intimidation of Witness. Where, upon trial of incest, the evidence showed that the testimony of the female against the defendant in the ease was procured by threats, intimidations, and confinement in jail, the conviction could not be sustained. 2. —Same—Attorney and Client. Where, upon trial of incest, the record on appeal showed that the officers refused the attorney for the defendant and his codefendant to take counsel with the latter in the preparation of defendant's defense, and forced said eodefendant to testify against defendant, the same was reversible error. 3. —Same—Rights of Counsel — Practice—Fair Trial. Where defendant and the female with whom it was charged he had incestuous intercourse employed an attorney to defend them, and said female was induced to turn State's evidence after she had been confined in jail and threatened with imprisonment in the penitentiary if she did not testify-for the State, and was prevented from consulting with her counsel, and said counsel was not jiermitted to investigate the testimony which she had given before the grand jury, and prevented from interrogating her as to this, the same was reversible error. 4. —Same—Custody of Prisoner — Right of Consulting Counsel — Constitutional Law. Under the Constitution of Texas, every person accused of crime has the right to consult counsel, and under Article 1046, Revised Penal Code, it is an offense if an officer or any other person having the custody of a prisoner wilfully prevents such prisoner from consulting or communicating with counsel. 5. —Same—Charge of Court — Undivorced Wife. Where, upon trial of incest by defendant upon his stepdaughter, the defendant introduced evidence that he had a living undivorced wife at the time he married the mother of his codefendant, the failure of the court to submit a requested charge that the jury must find from the evidence that the former wife was dead or legally divorced before they could convict defendant, was reversible error. Following McGrew v. State, 13 Texas Crim. App., 340, Harville v. State, 54 Texas Crim. Rep., 426, and other eases. 6. —Same—Pair and Impartial Trial. Where, upon appeal from a conviction of incest, the record showed that the defendant did not have a fair and impartial trial, and a witness against Mm was coerced to give testimony against him by the conduct of the grand-jury and the deputy sheriff and others, the cause must be reversed and remanded for new trial. [Rehearing denied February 12, 1913. — Reporter.]
68 Tex. Crim. 432Mims v. State (1913)
The opinion states the case.
68 Tex. Crim. 437Yates v. State (1913)
1. —Aggravated Assault — Sufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence sustained the conviction, there was no error. 2. —Same—Charge of Court — Requested Charge — Intent. Where, upon trial of aggravated assault, the court submitted the defendant’s intent to injure and in ease of a reasonable doubt to acquit him, there was no error in the court’s refusal of defendant’s requested charges on the same issue. 3. —Same—Charge of Court — Statutory Definition. Where, upon trial of aggravated assault, defendant contended that the injuries inflicted were accidental, there was no error in the court’s submission to the jury of the correct statutory provisions under Article 1009, Penal Code, as a part, of the law of the ease. 4 — Same—Evidence—Cross-Examination—Depositions. Where, upon trial of aggravated assault by the defendant on his wife, it • was shown that the latter had left the State and remained away, and defendant testified that he had had a conversation with her about this difficulty, there was no error in permitting the State to cross-examine on the same point without bringing out the conversation itself, and there was no error in not permitting defendant to detail to the jury such conversation; defendant having failed to get her depositions. 5. —Same—Evidence—Ex Parte Affidavits. Where, upon trial of aggravated assault, defendant claimed that the injured party had exonerated him, there was no error in excluding ex parte affidavits from said injured party; the defendant, having failed to take depositions. 6. —Same—Argument of Counsel — Depositions. Where the defendant was charged with assault and battery upon his wife, and the latter had removed from the State, but defendant claimed that she had since exonerated him, but failed to show this by her depositions, there was no error in State’s counsel’s comment upon this fact. 7. —Same—Argument of Counsel — Practice in County Court. Where defendant’s counsel sought in his argument to introduce the ex parte hearsay statement of defendant’s wife whom defendant was charged with assaulting and who he claimed had since exonerated him, but failed to introduce any testimony to that effect, it was proper that the court admonished defendant’s counsel to stay within the record, and not repeat such ex parte statements to the jury.
68 Tex. Crim. 440Drake v. State (1913)
1. —Murder—Companion Case — Practice on Appeal. Where the questions raised on appeal were decided adversely to appellant in a companion case, there was no error. Davidson, presiding judge, dissenting. 2. —Same—Continuance—Want of Diligence — Depositions. Where the application for continuance or postponement showed a want of diligence in procuring process and depositions of witnesses, there was no error in overruling same. 3. —Same—Evidence—Declarations of Third Parties. Upon trial of murder, there was no error in admitting testimony of the brother of deceased as to what he heard defendant say at the time a divorce case of deceased against bis wife was tried, and what another witness had heard him say at another time and place. i. — Same—Charge of Court — Malice—Words and Phrases. A complaint to the charge of the court that it did not define malice, and that it used the word reasonable and reasonably too often showed no error. 5. —Same—Charge of Court. Where the court’s charge on the presumption that deceased intended to kill or inflict some bodily injury upon defendant was more favorable to defendant than necessary, there was no error. 6. —Same—Sufficiency of the Evidence. Where, upon trial of murder the evidence sustained a conviction of murder in the second degree, there was no error. [Rehearing denied February 19. — Reporter.]
68 Tex. Crim. 443Ex Parte A.S. Shepherd (1913)
68 Tex. Crim. 444Ex parte Shepherd (1913)
Appeal from the Criminal District Court of Harris. Tried below before the Hon. C. W. Robinson. Appeal from a conviction of contempt; penalty, a fine of $100 and three days confinement in the county jail.
68 Tex. Crim. 449Spearman v. State (1913)
1. —-Perjury—Evidence—Papers in Civil Suits. "Where, upon trial of perjury, the State was permitted to introduce in evidence the petition, answer, and judgment of the civil suit out of which the prosecution for perjury grew, and upon which it was based to show that the eourt had jurisdiction, etc., there was no error; besides, the bill of exceptions was defective in not pointing out the alleged error in the introduction of such papers. 2. —Same—Husband and Wife — Declarations of Defendant — Impeachment. Where the alleged perjury was based principally upon the fact of defendant ’s sworn statement that he had never had carnal intercourse with his wife before their marriage, and he so testified in his divorce proceedings against her, there was no error in permitting said wife, she being divorced at the time, to testify in detail to the acts of intercourse between her and defendant before their marriage. 3. —Same—Evidence—Bill of Exceptions. Where it developed in a prosecution for perjury that defendant had sent away his wife in order to procure a divorce from her out of which the perjury proceeding originated against him, there was no error in permitting her to testify that she left the State, etc.; besides, the bill of exceptions was insufficient. 4. —Same—Evidence—Husband and Wife. Where, upon trial of perjury, the statements testified to by the divorced wife of defendant were made to her by the defendant at least three weeks after he had procured a divorce from her and that they were not then, and never afterwards, husband and wife, and such statement related to the false testimony of the defendant in a divorce suit against her out of which the prosecution for perjury against him originated, there was no error; besides, the bill of exceptions was defective. 5. —Same—Evidence—Reputation for Chastity. In a prosecution for perjury, there was no error in excluding testimony as to the unehastity of defendant’s divorced wife for the purpose of impeaching her testimony. 6. —Same—Evidence—Husband and Wife — Cross-examination—Depositions. Where the defendant introduced the depositions of his divorced wife showing what she had testified in his divorce suit against her, among other things that she had never had carnal intercourse with him before their marriage, which was false, and the prosecution was based thereon against the defendant, there was no error in permitting the State, on cross-examination, to show why and how she came to so testify and that she was induced to do so by the defendant. 7. —Same—Charge of Court — Questions of Law. Where the State was permitted to introduce the papers in the civil suit out of .which the prosecution for perjury against the defendant grew, as a predicate, there was no error in the court’s failure to submit to the jury for its finding whether or not such civil suit was pending, as this was a matter of law and not of fact. 8. —Same—Charge of Court — Limiting Testimony. Upon trial of perjury, where the pleadings in a civil suit out of which the prosecution originated were admitted in evidence, it was proper for thq court to tell the jury why such testimony was introduced. 9. —Same—Charge of Court — Falsity of Testimony — Perjury. Where the prosecution for perjury was based upon defendant’s testimony in a divorce suit against his wife that he had not had sexual intercourse with her before he married her, which was alleged and shown to have been false, and the court charged the jury that they must believe from the evidence beyond a reasonable doubt that the falsity of said statement had been established by the testimony of two' credible witnesses, or by one credible witness strongly corroborated by other evidence, and that said false statement made by defendant was wilfully and deliberately made, the same was sufficient. 10. —Same—Requested. Charges — Bill of Exceptions. Where bill of exceptions to the refusal of defendant’s requested charges was entirely too.general to require this court to pass thereon, there was no error; besides, they were essentially embraced in the main charge. 11. —Same—Evidence—Husband and Wife — Cross-examination—Public Policy. Where, upon trial for perjury, based upon the testimony of defendant that he had never had carnal intercourse with his wife before their marriage, it was shown that he surreptiously obtained a divorce from her upon testimony of his said wife which he falsely induced her to make, to the effect that she had had no such carnal intercourse with him before their said marriage there was no error, after defendant had introduced in evidence such testimony in the form of the said wife’s depositions, to permit the State, on cross-examination of said former wife to have her relate the circumstances why and how she was induced by defendant to make such false depositions, and this although said depositions were made during their marriage relation, as the law prohibiting one spouse to testify against the other is not applicable in eases of this kind as a matter of public policy. Davidson, Presiding Judge, dissenting.
68 Tex. Crim. 468Crutchfield v. State (1912)
1. —Murder—Continuance—Want of Diligence. Where, upon trial of murder, which lasted some five or six days after the application for a continuance was overruled, no effort was made to locate the alleged absept witnesses either before the process was issued or at any time thereafter, and one of the said witnesses attended the trial and was not introduced, there was no error in overruling the motion. Following Giles v. State, 66 Tex. Crim. Rep., 638, 48 S. W. Rep., 317. 2. —Same—Special Venire — Practice in District Court. Where the court, if not fully and literally, complied with the law in ordering a special venire, the issuance of the writ, the service and the return thereof, and no injury was shown to the defendant, there was no error. 3. —Same—Evidence—Witness for State. Where it was shown that one of the State’s witnesses gave material testimony for the State, and it developed that he had been arrested for the murder for which defendant was being tried, there was no error in showing that he had never been indicted by the grand jury for said offense. 4. —Same—Argument of Counsel — Bill of Exceptions. Where the bill of exceptions did not show that the remarks of State’s counsel to the jury were uncalled for, and stated nothing else in connection with said remarks to point out any error, and no special instruction was requested and the court orally withdrew said remarks from the jury, there was no error. Following Clayton v. State, 67 Texas Crim. Rep., 311, 149; S. W. Rep., 119. 5. —Same—Charge of Court — Aggravated Assault. Where, upon trial of murder, defendant was convicted of murder in the second degree, and the evidence did not raise the issue of aggravated assault, there was no error in the court’s failure to charge thereon. 6. —Same—Deadly Weapon — Shotgun—Means Used. Where, upon trial of murder, the evidence showed that the homicide was committed with a double-barrel of a shotgun which was used as a bludgeon and crushed the skull of deceased from which he died, and said barrel of said shotgun was introduced in evidence and handled by the jury, the jury could not have been aided by the mere statement of a witness that this was a • deadly weapon and the omission of such testimony was not reversible error under the charge of the court. 7. —Same—Charge of Court — Unlawful Killing — Intent to Kill. Where, upon trial of murder, the evidence showed that the deceased had been killed with the double-barrel of a shotgun detached from the stock, and the facts pointed to the defendant as the party who did the killing who denied it, and there were no circumstances raising the issue of self-defense accidental, or ' unintentional killing, and the court properly charged on the different degrees of murder and manslaughter, applying the same to the facts in evidence, there was no reversible error in the court’s failure to require the jury to find that the defendant intended to kill of that the killing was unlawful. 8. —Same—Charge of Court — Murder in the Second Degree. Where defendant was acquitted of murder in the first degree and convicted of murder in the second degree, the court’s charge on murder in the • first degree need not be considered, 9. —Same—Charge of Court — Deadly Weapons — Intent to Kill. Where the evidence showed an unlawful and intentional killing and the instrument used and the manner of its use produced the death of the deceased, and the court properly charged the jury on both degrees of murder and manslaughter, who found the defendant guilty of murder in the second degree, there was no error in the court’s failure to specifically require the jury to find that it was the specific intent of the defendant to kill. 10. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of murder in the second degree, the evidence sustained the conviction, there was no error. 11. —Same—Rule Stated — Charge of Court — -Article 743. The charge of the court must always be tested with reference to the evidence introduced and must be pertinent thereto, and in criticisms of the charge, this court will pass upon the whole of the charge, and under Article 743, Code Crim. Proc., it will not reverse a case unless the error appearing of record is calculated to injure the rights of defendant. 12. —Same—Charge of Court — Murder in Second Degree. Where, upon trial of murder and a' conviction of murder in the second degree, the defendant set up no other defense except that he did not do the killing, and the evidence showed an unlawful intentional killing and pointed to the defendant as the man who did it, there was no error in the court’s failure to require the jury to believe that the killing was unlawful and intentional, the court’s charge on murder in the second degree being full and correct and applicable to the facts. 13. —Same—Ride Stated — Charge of Court — Malice. The mere omission in a particular paragraph of the court’s charge, in a trial for murder, to require the killing to be unlawful or upon malice does not vitiate a proper charge on murder in the second degree where the facts required to be found, both as a matter of law and as a matter of fact, would make the killing unlawful and stamp it inevitably as of the grade of murder in the second degree. Following Puryear v. State, 56 Texas Crim. Rep., 333. 14. —Same—Presumption of law — Intent to Kill Presumed. If the weapons or means used by defendant were calculated to effect the purpose of murder or serious bodily injury, it is an .absolute presumption of law that it was the intention of the defendant to effect the purpose indicated. ' 15. —Same—Practice in District Court — Charge of Court. While it is the better practice to require the jury to believe by the court’s charge that the killing was both unlawful and intentional, yet, where on trial of murder, defendant denied the killing and set up no other defense and the evidence shows an intentional killing and pointed to him as the guilty party, there was no error under Article 743, Code Crim. Proc., in the court’s failure to specifically require the jury to find as a prerequisite to defendant’s guilt that the killing was unlawfully and intentionally done; besides, the court’s charge did so substantially require when taken as a whole. 16. —Same—Misconduct of Jury — Verdict by Lot — Affidavit. Where the question of the misconduct of the jury was raised for the first time on motion for rehearing in this court, the same came too late; besides, the affidavits attached to the motion were made before counsel for defendant and could not be considered. Following Maples v. State, 60 Texas Crim. Rep., 169, and other cases.
68 Tex. Crim. 483Brewer v. State (1913)
The opinion states the case.
68 Tex. Crim. 487Ferrell v. State (1912)
L — Misapplication of Public Funds — Tax Collector — Indictment—Words and Phrases. Where, upon trial for misapplication of publie funds, the indictment in two counts charged the defendant with' such offense, strictly following the statute, the same was sufficient, although in the second count, the word, “secret," was used instead of that used in the statute; towit, “secrete." 2. —Same—Rule Stated — Indictment—Certainty in Pleading. Under Article 460, Code Crim. Proe., the words used in a statute to define an offense need not be strictly pursued in the indictment, where the same charges the offense in ordinary and concise language; and under Article 453, id, special or particular terms may be alleged in general terms, and only such certainty is required as will enable the accused to plead the judgment in bar of any other prosecution. 3. —Same—Evidence—Tax Roll. Upon trial of misapplication of publie funds by a tax collector, there was no error in admitting in evidence the tax rolls for the assessment of property for a certain year upon which defendant collected money and after-wards embezzled it. 4. —Same—Evidence—Conversion—Bill of Exceptions. Upon trial of the misapplication of publie funds against the county tax collector, there was no error in permitting the State to show that the defendant at various times took money out of his tax collection for his personal use; besides, the bill of exception was defective. 5. —Same—Evidence—Bank Books. Where, upon trial of misapplication of publie funds against defendant as tax collector, it was shown .that the defendant kept said funds with certain banks who kept an account thereof, showing that defendant drew out the same on his own and his deputies’ cheeks the funds so deposited, there was no error in introducing such bank books after the proper predicate was laid as to their correctness. 6. —Same—Evidence—Remarks by Judge. Upon trial of a misapplication of publie funds against the defendant as tax collector, where the defendant testified that someone else misappropriated said money, there was no error in permitting the State, on cross-examination, to require defendant to state the date, the amount, and the items, which said other parties appropriated, as claimed by the defendant; and the remarks by the judge to defendant’s counsel in a low tone of voice which the jury did not hear that the defendant ought to be able to tell, was not reversible error. 7. —Same—Evidence—Expenditure of Money. Upon trial of a misapplication of publie funds by defendant as tax collector, there was no error, on cross-examination of defendant, to show that he told another party that he let a certain female have $900, etc., -during the time he was charged with said offense. 8. —Same—Evidence—Reports of Comptroller. Upon trial of a misapplication of publie funds of defendant as tax collector, there was no error in admitting in evidence the defendant’s reports as such collector to the State Comptroller. 9. —Same—Charge of Court — Current Money of the United States. Where defendant was charged with the misapplication of public funds as tax collector, and the money was alleged to be current money of the United States, there was no error in refusing a special requested charge that this meant legal tender coins, or legal tender treasury notes of the United States. 10. —Same Definition — Current Money of the United States. It is beyond question the settled law of this State that money and current money of the United States means and includes gold, silver, copper or other coin, bank bills, government notes, or other eirculative medium current as money. Following Butler v. State; 46 Texas Crim. Rep., 287, and other cases. 11. —Same—Charge of Court — Imputing Crime to Another. Where, upon trial of a misapplication of public funds as tax Collector, the defendant claimed that some one else illegally converted said money, and the court submitted a proper charge on this issue and no special charge was requested, there was no error. 12. —Same—Charge of Court — Circumstantial Evidence. Where the conviction did not wholly depend upon circumstantial evidence, but the court, nevertheless, submitted a charge on circumstantial evidence, and no special charge was requested, there was no error. 13. —Same—Charge of Court — Different Counts — General Verdict. Where the indictment charged the fraudulent misapplication and conversion of public funds in one count of the indictment, and in the second that defendant fraudulently secreted said money with intent to fraudulently convert it, and both counts were submitted and a general verdict of guilty returned, there was no error in the court’s submission of both counts; besides, there was evidence to support both counts. 14. —Same—Sufficiency of the Evidence. Where, upon trial of a misapplication of public funds, the evidence sustained the conviction, there was no error. 15. —Same—Current Money of the United States. Current money of the United States, and any such like general description, whether in theft or any character of embezzlement case, means and includes gold and-silver, copper or other coin, bank bills, government notes, or other circulating medium, current as money; and also includes gold and silver certificates and national bank bills. Following Berry v. State, 46 Texas Crim. Rep., 420; Butler v. State, 46 Texas Crim. Rep., 287; Overruling Lewis v. State, 28 Texas Crim. App., 140; Kimbrough v. State, 28 Texas Crim. App., 367; Summers v. State, 45 Texas Crim. Rep., 423; Block v. State, 44 Texas, 620, and other eases.
68 Tex. Crim. 498Barnes v. State (1912)
The opinion states the case.
68 Tex. Crim. 507Cain v. State (1913)
1. —Rape—Sufficiency of the Evidence. Where, upon trial of rape upon a female under the age of consent, the evidence was sufficient to sustain the conviction, although conflicting, there was no error. 2. —Same—Rule Stated — Functions of Jury — Practice on Appeal. Where the evidence was Sufficient to sustain the verdict, this court cannot legally take the place of the jury and determine whether it will believe any witness or witnesses, and from all of the testimony as reduced to writing and appearing in the record find a different verdict and reverse the ease; if there is sufficient evidence, the conviction is sustained, as the -jury in all cases are the exclusive judges of the facts and the weight to be given to the testimony. Following Kearse v. State, recently decided. 3. —Same—Evidence—Impeachment—Explanation. Where there had been an effort to impeach the State’s witness as to declarations made to him by' the defendant that he had the case against him beat, etc., there was no error in permitting the State to recall said witness to explain his testimony. 4. —Same—Charge of Court — Impeaching Testimony — Rule Stated. Where the impeaching testimony can only be used by the jury to impeach a witness, it is not necessary to charge on the subject at all, and there was, therefore, no error in the court’s failure to limit impeaching testimony which could only be used to impeach the witness; especially, where such testimony was favorable to the defendant. 5. —Same—Evidence—Prejudice of Witness — Bias in Favor of Defendant. Where a witness had given material testimony in favor of defendant and against the State, the State had the right to show his bias and prejudice in favor of the defendant. Following Pope v. State, 65 Texas Crim. Rep., 51, 143 S. W. Rep., 611, and other eases. • 6. — Same—Witness—Ill-will. There was no error in permitting the State to show that a State’s witness had no ill-will or bias against the defendant; the defendant attempting to show that he had. 7. —Same—Evidence—Practice in District Court. Where a witness was allowed to substantially testify to the same thing which was excluded in ease of another witness, there was no error. 8. —Same—Charge of Court — Bill of Exceptions. Where the objection to the refusal of requested charge simply quoted the refused charge without giving any reason as to why it should have been given the same is too general to be considered on appeal; besides, the same point was covered in the court’s main charge. 9. —Same—Evidence—Other Acts of Intercourse. Upon trial of rape upon a female under the age of consent, there was no error in permitting the prosecutrix to testify to other acts of intercourse that defendant had with her, other than the one with which he was charged in the indictment and to which the court had limited the finding of the jury. Following Battles v. State, 63 Texas Crim. Rep., 147, and other eases. Overruling Henard v. State, 82 S. W. Rep., 655; Smith v. State, 73 S. W. Rep., 401; Hackney v. State, 74 S. W. Rep., 554. 10. —Same—Name of Injured Party — Variance. Where the indictment charged defendant with ravishing Velma Coalson, and the evidence showed that at the time of the alleged act this was her name, but that soon thereafter, she married Walter McDonald and she was as frequently called by one name as by the other, there was no variance. 11. —Same—Charge of Court — Age of Prosecutrix. Where, upon trial of rape upon a female under the age of consent, the court charged that the jury must find that the prosecutrix was under the age of fifteen years at the time of the alleged rape, there was no error, although her age was not contested. 12. —Same—Evidence—Imputing Crime to Another. Where, upon trial of rape, the defendant contended that another had committed the crime, there was no error in permitting this other party to testify that he never had had sexual intercourse with prosecutrix. 13. —Same—Charge of Court — Limiting Testimony. Where, upon trial of rape, the evidence showed the place where the act of intercourse occurred, there was no error in the court’s charge in limiting the jury to the act of sexual intercourse by defendant with prosecutrix to that place; especially, as this followed a requested charge. 14. —Same—Misconduct of Jury — Practice on Appeal. Where, upon appeal from a conviction of rape, it appeared from the record that the court had carefully heard the ground in the motion for new trial as to the misconduct of the jury, heard testimony thereon and overruled the same, there was no error; besides, appellant’s counsel failed to urge this ground in their brief and evidently abandoned same. [Rehearing denied February 5, 1913. — Reporter.]
68 Tex. Crim. 520Elder v. State (1912)
1. —Slandering Female — Evidence. Upon trial of slandering a female, where the record disclosed that the alleged female was found in a compromising position with a witness, defendant should have been permitted to show that this witness made preparations for sexual intercourse. 2. —Slandering Female — Evidence—Flight. Where, upon trial of slandering a female, the defendant was seeking to use the flight of the man whom he contended had been intimate with defendant’s wife, there was no error in permitting that party to testify as to the reason of his flight. 3. —Same—Evidence—Circumstances. Where, upon trial of slandering a female, the State’s theory was that the defendant’s declarations were wholly untrue and slanderous and were made for the purpose of obtaining a divorce from his wife that he might marry another, there was no error in admitting testimony as to defendant’s attentions to this other woman just prior to the occasion of his alleged slander. 4. —Same—Evidence—Reputation for Chastity. Where, upon trial for slandering a female, several young men had testified to damaging facts concerning the reputation of prosecutrix for chastity, it was reversible error to admit hearsay statements to affect the testimony of these young men without individuating them. 5. —Same—Charge of Court — Falsity of Statement. Where, upon trial of slandering a female, the question as to the falsity of the alleged slander 'became an issue under the evidence, it was error to refuse a special charge covering this phase of the case.
68 Tex. Crim. 524Ortiz v. State (1912)
The opinion states the case.
68 Tex. Crim. 530Bigliben v. State (1912)
1. —Rape—Evidence—Moral Turpitude — Credibility of Witness. Where, upon trial of rape upon a female under the age of consent, the prosecutrix testified in her examination in chief to a certain act of carnal intercourse with defendant and that this was the first instance of such intercourse, it was reversible error not to permit the defendant .,to show that the prosecutrix before such date had indiscriminate carnal intercourse with different men; for the purpose of affecting her credibility; and this, although the State had "been permitted to withdraw her testimony as. to the first act of intercourse. 2. —Same—Evidence—Rule Stated. Where, upon trial of rape, the court correctly refused to permit the defendant to prove other individual acts of intercourse by prosecutrix with others than defendant, yet where the defendant offered to show that the prosecutrix had been an inmate of a house of prostitution and had promiseous carnal intercourse with different men prior to the alleged act of intercourse, such testimony was admissible to affect her credibility, she being under the age of consent. 3. —Same—Evidence—Age of Prosecutrix — Bible. Where, upon trial of rape upon a female under age of consent, the age of the prosecutrix was sharply contested, it was error to admit in evidence the testimony of the prosecutrix that her birth was entered by her father in the family Bible in his handwriting; the record disclosing that her father was still living and was in attendance on court, and no testimony being offered as to when such entry was made. 4. —Same—Bills of Exception. Where, upon appeal from a conviction of rape, the bill of exceptions did not show what the answers would have been to the questions objected to, the same cannot be considered.
68 Tex. Crim. 533Brock v. State (1912)
The opinion states the case.
68 Tex. Crim. 536Hogue v. State (1912)
The opinion states the case.
68 Tex. Crim. 539MacKey and Grice v. State (1912)
1. —Adultery—Jury and Jury Daw — Verdict—Waiver. Where, upon trial of adultery of two defendants who were jointly indicted, the case was tried by only five jurors and the verdict was signed by one juror only as foreman, and the record showed that the defendants agreed to try the case before a jury of five men, there was no error; besides, in misdemeanor cases, the jury can be waived altogether. 2. —Same—Verdict—Foreman—Signature. The verdict of the jury need not be signed by the foreman or any other or others of the jury, even in a felony ease. 3. —Same—Evidence—Declaration of Defendant — Charge of Court. Where defendants were tried jointly for adultery, there was no error in admitting the declarations of each of them, and the contention that such declarations were not made in the presence of each other was untenable, and the defendants not having asked a special charge on this question, there was no error. 4. —Same—Circumstantial Evidence. Where, upon trial of adultery, the State relied somewhat upon circumstantial evidence, there was no error to admit testimony tending to show that the witness saw the defendants under such circumstances as to show that they had sexual intercourse. 5. —Same—Evidence—Age of Witness — Bill of Exceptions. Where the bill of exceptions did not show that the witness who was thirteen years of age was incompetent to testify, there was no error. 6. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not show that the testimony objected to was inadmissible, there was no error. 7. —Same—Age of Defendant. Where, upon trial of adultery of both defendants, the witness testified that the female defendant told him that she was fifteen years old, there was no error. 8. —Same—Sufficiency of the Evidence. Where, upon trial of adultery, the evidence showed that the defendants had sexual intercourse for such a period of time as to make it habitual, and that one was married and the, other unmarried, the conviction was sustained. 9. —Same—Evidence—Testimony Before Grand Jury. Upon trial of adultery, there was no error in admitting the testimony of one of the defendants before the grand jury as to her transactions with co-defendant with reference to the offense charged, and the contention that such testimony is secret and cannot be disclosed is untenable. Following Wisdom v. State, 42 Texas Crim. Rep., 79, and other cases. Overruling Gutgezell v. State, 43 S. W. Rep. 1016.
68 Tex. Crim. 542Earnest v. State (1912)
1. —Murder—rAggravated Assault — Circumstantial Evidence. Where, upon trial of murder, the defendant was convicted of aggravated assault, the evidence showing that defendant and her husband and the deceased child of the defendant by a former marriage lived together, and the facts and circumstances showed that no other person except these two had an opportunity of inflicting the injury upon the deceased, and the circumstances in evidence authorized the jury to find that defendant was the person who inflicted the injury, the evidence sustained the conviction; the court having properly submitted a charge on the law of circumstantial evidence. 2. —Same—Charge of Court — Requested Charges. Where defendant was convicted of aggravated assault, the defendant’s complaint of the court’s refusal to submit special charges relating to murder passed out of the ease. 3. —Same—Charge of Court — Admissions and Statements of Defendant. Where the conviction for aggravated assault under an indictment for murder was largely based on the admissions of the defendant, and the court properly submitted a requested charge instructing the jury that the State was bound by these admissions unless they were shown to be untrue, etc., there was no error, i. — Same—Chastisement—Child. Where, upon trial of murder and a conviction for aggravated assault, the evidence showed that the deceased who was defendant's child by a former marriage had received injuries from the chastisement administered by the defendant, and the court submitted this issue to the jury, there was no error in refusing a special charge on the same issue. 5. — Same—Charge of Court — Aggravated Assault. Where defendant was charged with the murder of her own child, and the evidence showed that she administered to same an unmerciful chastisement, but there was no evidence as to a specific intent to kill, the court correctly charged on aggravated assault. [Rehearing denied January 15, 1913. — Reporter.]
68 Tex. Crim. 547Flowers v. State (1912)
The opinion states the case.
68 Tex. Crim. 549Leonard v. State (1912)
The opinion states the case.
68 Tex. Crim. 553King v. State (1912)
1. —Assault to Murder — Charge of Court. Where the requested charges were partly contained substantially in the court’s main charge, and others were incorrect, there was no error in the court’s refusal to submit same. 2. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions to the admission of testimony was defective, the same could not be considered on appeal. 3. —Same—Argument of Counsel — Bill of Exceptions. Where the bill of exceptions to the argument of State’s counsel was defective, there was no error. [Rehearing denied January 15, 1913. — Reporter.]
68 Tex. Crim. 555Huffman v. State (1912)
1. — Murder—Reading Law — Practice in District Court. Where the record showed that the State’s counsel read certain decisions to the court and not to the jury, and the bill of exceptions did not show that the jury heard the decisions read, there was no error. 2. — Same—Statement of Facts. In the absence of a statement of facts, there was ho ground in the motion for new trial to present error. [Rehearing denied January 15, 1913. — Reporter.]
68 Tex. Crim. 556Price v. State (1912)
1. — Gaming—Keeping Gambling House — Indictment. Where the grounds of complaint, in an- appeal from a conviction of keeping a gambling house, as to the insufficiency of the indictment and unconstitutionality of the law had been adversely decided to appellant, there was no error. Following Parshall v. State, 62 Texas Crim. Rep., 177. 2. ' — Same—Severance—Different Jurisdiction. Where, upon trial of keeping a gambling house, the court overruled defendant’s motion of severance, and it appeared from the record on appeal that the case against the defendant and that of his co-defendant were pending in different courts and the granting of the motion would have operated as a continuance, there was no error in overruling same. 3. —Same—Statement of Facts — Practice on Appeal. In the absence of a statement of facts, the question raised in the motion for new trial cannot be considered on appeal. [Rehearing denied January 15, 1913. — Reporter.]
68 Tex. Crim. 559Bishop v. State (1912)
1. —Seduction—-Want of Corroboration. Where the prosecutrix testified that she was called out on the gallery by the defendant in the presence of her father, mother, sister, and others, none of whom were called to corroborate this circumstance, and she testified that defendant induced her to yield upon a promise of marriage on said gallery, there was no corroboration of this circumstance. 2. —Same—Accomplice—Letters. An accomplice cannot corroborate himself, and where, upon trial of seduction, the prosecutrix testified that certain letters in evidence were written by the defendant, but there was no corroboration that these letters were written by defendant, the court should have submitted a requested charge that the letters within themselves would not furnish the corroboration which the law requires to warrant a conviction. Following Smith v. State, 58 Tex. Crim. Rep., 106, 124 S. W. Rep., 919. 3. —Same—Evidence—Reference to Former Conviction. Upon trial of seduction, it was improper to permit the district attorney, in cross-examination of the witness, to refer'to a former trial and conviction of the defendant. Following Wyatt v. State, 58 Texas Crim. Rep., 115.
68 Tex. Crim. 561Tate v. State (1912)
Theft of Cattle — Accomplice—Charge of Court. Where, upon trial of theft of cattle, the evidence did not tend to show that the State’s witness was an accomplice, there was no error in the court’s failure to submit the question of accomplice to the jury. [Rehearing denied December 18, 1912. — Reporter.] — On question of the court’s failure to instruct on accomplice testimony: Phillips v. State, 17 Texas Crim. App., 169; Burke v. State, 15 id, 156; Winn v. State, 15 id, 169; Smith v. State, 45 S. W. Rep., 707; Rios v. State, 48 S. W. Rep., 505; Johnson v. State, 58 Tex. Crim. Rep., 244; 125 S. W. Rep., 16.
68 Tex. Crim. 562Ely v. State (1912)
The evidence of the State showed substantially that the defendant whipped her pupil for a disobedience of the rules of the school, with a paddle about two feet long and about two inches wide of white pine wood, with which she administered a number of licks on the back part of the legs above the knees of the pupil; the pupil testifying that it hurt him and that he could not go back to school for several weeks, as he could not well sit down on account of the whipping and that…
68 Tex. Crim. 567Gentry v. State (1912)
The State’s testimony showed that the defendant stabbed deceased with a knife, killing him, and indicated that the difficulty arose from the fact that deceased was found in company with defendant’s mistress; that the killing occurred at a negro festival and was witnessed by several parties and occurred at night. The defense’s testimony showed that the deceased first struck or struck at the defendant having something in his hand.
68 Tex. Crim. 572Wilson v. State (1912)
Carrying Pistol — Officer—Sufficiency of Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant had won the money from another at a game of cards, who took a scantling and compelled defendant to give him back his money, and that thereupon the defendant went home and armed himself with a pistol and returned, his plea that he got the pistol to arrest the other party was not tenable, the testimony showing that an officer of the law was in calling distance of the defendant. [Rehearing denied December 18, 1912. — Reporter.]
68 Tex. Crim. 573Alexander v. State (1912)
The opinion states the case.
68 Tex. Crim. 575McCrary v. State (1912)
1. —Carrying Pistol — Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence sustained the conviction, although conflicting, there was no error. 2. —Same—Evidence—Impeaching Testimony. Where, upon trial of unlawfully carrying a pistol, the defendant denied making a certain statement, there was no error in introducing impeaching testimony.' 3. —Same—Charge of Court — Words and Phrases. Where defendant was charged with unlawfully carrying a pistol, and the court instructed the jury that if any person shall unlawfully carry on or about his person a pistol, etc., the use of the word “have” instead of the word “carry” in one portion of the court’s charge did not vitiate the charge when considered as a whole.
68 Tex. Crim. 576Stone v. State (1912)
The opinion states the case.
68 Tex. Crim. 577McDowell v. State (1912)
1. —Murder—Charge of Court — Murder in Second Degree. Where the court’s charge authorized the conviction of defendant for murder in the second degree, although he may have killed in self-defense, or have been guilty of no higher offense than manslaughter, or even if it was an unintentional killing, the same was reversible error. Following Clark v. State, 51 Texas Crim. Rep., 519, and other eases. 2. —Same—Charge of Court — Specific Intent to Kill. Where, upon trial of murder, there was evidence of an unintentional killing, the court should have submitted a requested charge under Article 1149, Revised Penal Code, requiring a specific intent to kill deceased in order to sustain a conviction of murder. 3. —Same—Charge of Court — Provocation. Where there was no other provocation than that which occurred at the time of the difficulty, the court should not have charged on a former provocation. 4. —Same—Charge of Court — Accidental Killing — Self-defense. Where, upon trial of murder, there was evidence both as to an accidental killing and self-defense, these issues should have been given in a disconnected way, and so as not to impinge on the right of self-defense.
68 Tex. Crim. 580Young and Longwood v. State (1912)
1. —Assault to Murder — Charge of Court — Aggravated Assault — Intent to Kill. Where, upon trial of assault to murder, the court in his charge limited the jury in their consideration of aggravated assault to the theory that had the assault resulted in a killing, and it would have been manslaughter, then the jury would be justified in returning a verdict for aggravated assault, without instructing them upon the question of serious bodily injury and circumstances not amounting to an intent to murder or maim, the same was reversible error. 2. —Same—Rule Stated — Intent to Kill — Malice. In order to constitute the offense of assault with intent to murder, there must be an assault, and there must be a specific intent to kill actuated by malice. Following Henderson v. State, 55 Texas Crim. Rep., 15. 3. —Same—Charge of Court — Weight of Evidence. Where, upon trial of assault to murder against two defendants, the charge of the court assumed a state of facts that at least one of the defendants was in the wrong, and did not put the matter in the alternative, the matters of fact being in dispute, there was reversible error. Following Ponton v. State, 35 Texas Crim. Rep., 597, and other cases.
68 Tex. Crim. 584Hughes v. State (1912)
The opinion states the case.
68 Tex. Crim. 589Washington v. State (1912)
Tried below before the Hon. P. L. Hawkins. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary.
68 Tex. Crim. 593Hobbs v. State (1912)
The opinion states the case.
68 Tex. Crim. 596Coons v. State (1912)
1. —Aggravated Assault — Sufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence sustained the conviction, there was no error. 2. —Same—Charge of Court — Defense of Another. Where, upon trial of aggravated assault, the evidence showed that defendant not only acted in self-defense, but also in the defense of another, a failure to submit said latter issue was reversible error, a charge having been requested on this phase of the case and refused and proper exceptions taken thereto.
68 Tex. Crim. 598Mollenkopf v. State (1912)
1. —Occupation—Selling Intoxicating Liquors — Local Option. Where the State’s testimony did not show that defendant engaged in the occupation of selling intoxicating liquors in local option territory, but defendant took the stand and admitted that she had sold considerable quantities of wine or grape juice, the case, if otherwise sufficient, was made out to support a verdict that she was engaged in such occupation. 2. —Same—Intoxicating Liquors — Non-intoxicating Liquors — Mistake of Fact —Charge of Court. _ The mistake of fact provided for under Articles 45 and 47, Penal Code, which will excuse, must be such that the person would have been excusable if his conjecture as to the fact had been correct and did not arise from a want of proper care, and the simple belief of defendant that the alleged liquor was not intoxicating does not raise that issue, and there was no error in refusing a charge on this question. Following Coleman v. State, 54 Texas Crim. Rep., 401. 3. — Same—Charge of Court — Intoxicating Quality an Issue — Grape Juice. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the State’s testimony showed that the liquor was intoxicating and the defendant’s testimony showed that it was not, but only grape juice, the charge of the court should have submitted this issue as requested. 4. —Same—Charge of Court — Definition of Occupation. Where the jury could infer from the court’s charge that proof of two sales of intoxicating liquors in local option territory would in and of itself constitute a business or occupation, the same was improper, and the court should submit the proper definition of occupation in a prosecution of this kind. 5. —Same—Proof Required — Two Sales — Occupation. In prosecutions for pursuing the occupation of selling intoxicating liquors in local option territory, the’ State must show that the person charged with the offense is engaged in such occupation, which may be proven by circumstances, and also prove that two sales of intoxicating liquors have been made to persons named in the indictment.
68 Tex. Crim. 602Stanton v. State (1912)
1. — Assault to Murder — Continuance—Immateriality of Testimony. Where the evidence on the trial disclosed that the testimony alleged in the application for continuance did not enter into the case and was immaterial, there was no error in overruling a motion for new trial for a failure to grant said application for continuance. 2. — Same—Intent to Kill — Deadly Weapon — Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence did not show definitely that the weapon used was a deadly one, but that it was one with which a person could be killed and there was enough evidence to authorize the jury to reach the conclusion that the assault was made with intent to kill, the conviction for assault with intent to murder was sustained; the court having submitted the issues properly.
68 Tex. Crim. 605Raines v. State (1912)
Burglary — Notice of Appeal. A recitation at the close of the sentence that inasmuch as defendant had given notice of appeal the judgment would be suspended is not a sufficient entry of notice of appeal.
68 Tex. Crim. 606Fields v. State (1912)
Theft of Mule — Filing of Indictment. Where, upon trial of theft of a mule, the defendant claimed that the indictment charged that the offense was committed after the indictment was filed, but the record on, appeal showed that the offense was alleged to have been committed before the filing of the indictment, and that the alleged filing in the copy of the indictment was clearly a typographical error, there was no reversible error.
68 Tex. Crim. 607Morgan v. State (1912)
The opinion states the case.
68 Tex. Crim. 608Ortiz v. State (1912)
The opinion states the case.
68 Tex. Crim. 612Giles v. State (1912)
Burglary — Motion for New Trial — Practice on Appeal. Where the motion for new trial is not verified other than by the fact that appellant swore to the motion, and the matters raised therein were not reserved by bill of exceptions, there was nothing to review and the judgment must be affirmed.
68 Tex. Crim. 613Jennings v. State (1912)
Burglary — Withdrawal of Appeal — Practice on Appeal. The rules of this court provide that a request to withdraw the appeal must be signed in person and sworn to by appellant; however, there being no statement of facts and no other question to .review, the judgment is affirmed.
68 Tex. Crim. 614Bradberry v. State (1912)
Tried before the Hon. Jno. J. Ford. Appeal from a conviction of unlawfully pulling and breaking down and injuring the fence of another; penalty, a fine of $10. The opinion states the case.
68 Tex. Crim. 621Abbott v. State (1912)
Burglary — Statement of Facts — Bills of Exception — Practice on Appeal — Due Process of Law. "Where, upon appeal from a conviction of burglary, there was no showing that appellant was unable to secure a statement of facts or that he was in any manner deprived of securing the same, and there was no statement of facts or bills of exception in the record, the cause must be affirmed, and such procedure is due process of law and not unconstitutional.
68 Tex. Crim. 622Bradshaw v. State (1913)
1. —Burglary—Evidence—Declarations of Third Party. The fact that the absent witness was in Europe afforded no reason why conversations he had with another party should be used against the defendant. 2. —Same—Evidence—Declaration of Third Party. What may have occurred between third parties, in the absence of defendant, would not be binding upon him an is inadmissible in evidence. 3. —Same—Evidence—Confessions—Codefendant—Arrest. The declarations of a codefendant made in defendant’s presence when the latter was under arrest are not binding upon the defendant. 4. —Same — Evidence — Declaration of Codefendant — Warning — Arrest — Remarks by Court. Where defendant was under arrest, the warning to his codefendant could not apply to the defendant, and whatever remarks or declarations the defendant made while under arrest without warning could not be used against him; besides, the remarks by the court thereon were improper.
68 Tex. Crim. 625De Leon v. State (1913)
1. —Murder—Exculpatory Evidence — Charge of Court. Where, upon trial of murder, there were no eyewitnesses to the transaction and the State introduced in evidence statements of the defendant made shortly after the homicide to the officers, in which he claimed self-defense, the failure of the court to submit to the jury the question that unless the State disproved the statements of the defendant, he should not be convicted, was reversible error. 2. —Same—Evidence—Motive—Knowledge of Defendant. Where the State sought to prove motive on the part of defendant, it was reversible error to permit it to introduce testimony that the deceased intended to marry the sister of defendant and was about to procure a marriage license, without showing that defendant had knowledge of these matters; besides, the court failed to limit said testimony. Following Phillips v. State, 22 Texas Crim. App., 139, and other eases. 3. —Same—Evidence—Motive—Knowledge of Defendant. Upon trial of murder, where the State sought to show motive on the part of defendant, it was reversible error to admit testimony that the sister of defendant was about to marry deceased and shortly after the homicide died from the effects of arsenic poison, without showing any knowledge of or connection with defendant with reference to these matters.
68 Tex. Crim. 628Andrado v. State (1913)
The opinion states the case.
68 Tex. Crim. 631People v. State (1912)
Occupation — Selling Patent Medicines — License—Insufficiency of the Evidence. Where, upon trial of following the occupation of selling patent and other medicines without a license, the evidence showed that defendant after the expiration of his license traveled over the country and sold peppers, spices, etc., the conviction was not sustained.
68 Tex. Crim. 632Smith v. State (1912)
1. —Swindling—Sufficiency of the Evidence — Plea of Guilty. Where, upon trial for swindling, defendant pleaded guilty and the Stale introduced other evidence, the conviction was sustained. 2. —Same—Practice on Appeal — Assignments of Error. Where the trial court adjourned, and three months thereafter appellant filed other assignments of error, the same could not be considered on appeal. Following Sue v. State, 52 Texas Crim. Rep., 122.
68 Tex. Crim. 633Kearse v. State (1912)
1. —Rape—Function of Court — Practice on Appeal — Contradiction. "Where, upon trial of rape, the prosecutrix contradicted herself and was contradicted by other testimony, but there was sufficient testimony to sustain the conviction, the judgment of conviction will not be disturbed. 2. —Rape—Same—Functions of Jury — Practice on Appeal. Our law expressly provides that the jury in all criminal eases are the exclusive judges of the facts proved and of the weight to be given to the testimony, and this court cannot assume the functions of the jury in this behalf without usurping authority that was never given nor intended to be given to it; and where, upon trial of rape, the evidence was conflicting and there were contradictions in the testimony, it was the peculiar province of the jury to settle these questions of fact and a conviction will not be set aside on this ground; the evidence being sufficient to sustain the conviction. 3. —Same—Evidence—Testimony Before Grand Jury. "Where, upon trial of rape, the testimony of one of defendant’s witnesses tended to break down the State’s ease, there was no error in permitting the State to introduce the written testimony of said witness before the grand jury, which was in direct contradiction of some of his testimony given on the final trial. 4. —Same—Charge of Court — Testimony Before the Grand Jury. "Where, upon trial of rape, the State introduced testimony given before the grand 3ury by one of defendant’s witnesses for the purpose of impeaching said witness’ testimony, and left out a portion thereof which the defendant introduced, there was no error in the court’s charge limiting said testimony to the credibility of the witnesses concerned therein; and especially, where the latter part of the charge was favorable to defendant. Following Gallegos v. State, 48 Texas Crim. Rep., 58, and other eases. 5. —Same—Evidence—Age of Prosecutrix — Accounting for Absent Witness. Where, upon trial of rape, the State was permitted to prove the age of the prosecutrix at the time of the alleged offense and as to the presence of the members of her family, there was no error to admit testimony by such State’s witnesses that the mother of the prosecutrix was dead at the time of the alleged offense, for the purpose of accounting for the mother’s absence as a witness; and this, although defendant admitted the age of the prosecutrix. 6. —Same—Evidence—Rule Stated. Where it was the contention of the defendant that the different members of the family of prosecutrix were in and about the premises at the time of the alleged offense, and could have known what -*was going on, and thereby attacked the credibility of prosecutrix, there was no error in permitting the State to show that the mother of prosecutrix was dead at the time, in order to account for the absence of her as a witness. Following Sweeny v. State, 65 Texas Crim. Rep., 593, 146 S. W. Rep., 883; there being no injury shown to defendant. 7. —Same—Evidence—Reputation of Prosecutrix — Limiting Number of Witnesses. Where, upon trial of rape upon a female under the age of consent the court limited the number of witnesses to three to show the bad character of prosecutrix for chastity, there was no error in view of the fact that prosecutrix admitted that she had had carnal intercourse with other men; besides, such testimony was not admissible for the purpose of affecting the credibility of prosecutrix who was under age of consent. 8. —Same—Bill of Exceptions — Ground of Exception — Practice on Appeal. Where, upon trial of rape, the court sustained an objection to the question propounded by defendant’s counsel to one of defendant’s witnesses, to the effect whether he was present at the trial of another party also accused for the offense of rape with the prosecutrix in the instant ease- wherein said other party was acquitted, and the objection of defendant’s counsel was to the court’s remarks that he would fine counsel if he repeated the question, because such remarks were' calculated to mislead the jury, there was no error, and this court cannot look to the oral argument of one of appellant’s counsel that the object of such question was for another purpose, to-wit: to show the testimony of prosecutrix on said other trial. 9. —Same—Rule Stated — Practice on Appeal — Other Assignment of Error. Where appellant’s counsel in oral argument contended that the court below refused to permit appellant’s attorneys to tell the court what they expected to prove by their witness as to what the prosecutrix had testified to on the trial of a third party charged with a similar offense on prosecutrix; but the bill of exceptions and motion for new trial did not assign this reason; but simply showed that defendant’s attorney requested the court to withdraw the jury that he might make his objections and take his exceptions to the ruling of the court, which the court declined to do, stating to counsel that he could put any objection in his bill, and the court, thereafter, prepared a bill of his own in lieu of the one presented by defendant’s counsel, which counsel accepted, there was no error, and this court cannot consider an assignment of error not contained in the bill of exceptions or motion for new trial. 10. —Same—Bills of Exception — Practice on Appeal — Suspending Trial. Under Article 744, Code Criminal Procedure, and various articles under the Revised Statutes, as to bills of exceptions, in both criminal and civil cases, where the judge, upon trial of rape, substantially complied with the rules laid down in said statutes, and counsel was satisfied with the bill of exceptions as prepared by the trial judge, and there were no affidavits of counsel or other showing that said trial judge had not complied with said statutes, there was no error, and the mere fact that the court did not suspend the trial and give him a bill of exceptions at- once was not reversible error. [Rehearing denied December 18, 1912. — Reporter.]