69 Tex. Crim.

Volume 69 — Texas Criminal Reports

174 opinions

69 Tex. Crim. 1Whorton v. State (1913)
1. —Forgery—Reproduction of Testimony—Permanent Removal. Where, upon trial of forgery, a sufficient predicate was laid for the reproduction of the testimony of an absent witness who had permanently removed from the State, there was no error. Following Connery v. State, 23 Texas Crim. App., 378, and other eases. Davidson, Presiding Judge, dissenting. 2. —Same—Rule Stated—Absent Witness. When it is once shown that a witness had permanently removed beyond the jurisdiction of the court, it is not necessary to show his exact whereabouts on the day of the trial. Following Smith v. State, 66 Texas Crim. Rep., 593. Qualifying Ripley v. State, 58 Texas Crim. Rep., 489. 3. —Same—Evidence—Exculpatory Statements—Confessions. The statutes governing the admissibility of confessions made under arrest do not apply xto nor include statements which are wholly exculpatory, even though the State should introduce other evidence showing that such exculpatory statements are false. Following Ferguson v. State, 31 Texas Crim. Rep., 93. Distinguishing Morales v. State, 36 Texas Crim. Rep., 234. 4. —Same—Case Stated—Confessions—Arrest. Where the exculpatory statement was that defendant had not been in the place at the time the alleged offense was committed, the same was not a confession required to be in writing when defendant was under arrest; besides, the facts showed that he did not know he was under arrest, and that he afterwards made a written statement which complied with the statutes as to confessions under arrest which was the same in substance as his exculpatory oral statement, and there was no error. Following Martin v. State, 57 Texas Crim. Rep., 264, and other eases. Davidson, Presiding Judge, dissenting. 5. —Same—Evidence—Signature. Where, upon trial of forgery, while a State’s witness was testifying that he did not write his name on the back of the alleged forged check, the court permitted him to write his name on a slip of paper in the presence of the jury, but the jury did not see the signature and the paper upon which it was written was excluded from the consideration of the jury, there was no error. 6. —Same—Circumstantial Evidence—Check. "Upon trial of forgery, there was no error in introducing in evidence, as a circumstance, that the party whose name was alleged to be forged had given defendant another check upon the same bank, to trace knowledge to the defendant that the said party did his banking business with said bank. Following Noftsinger v. State, 7 Texas Crim. App., 301, and other cases. 7. —Same—Charge of Court—Defendant’s Declarations—Exculpatory Statements—Alibi. Where, upon trial of forgery, the court admitted in evidence the exculpatory statement of defendant that he was not in the place where the alleged forged check was passed at the time it was passed or forged, as claimed by the state, and such statement did not contain any inculpatory fact, and the court charged on alibi, there was no error in refusing a special charge that the State was bound by said statement of defendant unless disproved by the evidence. Following Trevenio v. State, 48 Texas Crim. Rep., 207, and other cases. Davidson, Presiding Judge, dissenting. 8. —Same—Indictment—Words and Phrases. Where, upon trial of forgery, the indictment followed approved precedent, the fact that “A. D.” was left out just before the year “1911,” was immaterial and the indictment was sufficient. 9. —Same—Indictment—Endorsement. Where the endorsement on the alleged forged cheek was made at the bank where it was cashed, at the banker’s request, it was not necessary to allege such endorsement in the indictment. Following Crayton v. State, 47 Texas Crim. Rep., 88, and other eases. 10. —Same—Evidence—Comparison of. Handwriting. Upon trial of forgery, there was no error in admitting in evidence certain letters found upon defendant which were in the handwriting of the defendant, as standards of comparison with the writing in the forged check Hughes v. State, 59 Texas Crim. Rep., 294, and other cases. 11. —Same—Evidence—Declarations of Defendant—Charge of Court—Invited Error. Where the declarations of defendant applied to the charge of forgery against the defendant and were thus limited by the charge of the court, the contention of defendant that he was not informed that he was also charged with passing a forged instrument are not well taken, and there was no error; besides, the court’s charge was invited by a requested charge by defendant. Following Carbough v. State, 49 Texas Crim. Rep., 452. 12. -—Same—Practice on Appeal—Charge of Court. Where defendant was indicted for forgery and passing a forged instrument, but tried and convicted of forgery, objections relating to the charges of the court as applied to passing a forged instrument need not be considered. 13. —Same—Charge of Court—Sufficiency of the Evidence. Where, upon trial of forgery, the evidence was sufficient to support the conviction, and the requested charges were either given or covered by the court’s main charge, there was no error.
69 Tex. Crim. 23Alexander v. State (1912)
1. —Occupation—Selling Intoxicating Liquors—Local Option—Plea of Guilty —Motion for New Trial. Where defendant contended that he did not know in entering his plea of guilty that he was charged with pursuing the occupation of selling intoxicating liquors in local option territory which was contested by the State, and the court heard testimony as to this issue on defendant's motion for new trial and found against him, there was no reversible error. 2. —Same—Withdrawal of Plea of Guilty. While the defendant has the right to withdraw his plea of guilty at any time before the retirement of the jury, yet this question, under Article 938, Code Criminal Procedure, cannot be raised for the first time in the Court of Criminal Appeals where the defendant has not reserved same by bill of exceptions or motion for new trial in the court below. Distinguishing Noble v. State, 50 Texas Crim. Rep., 581, 99 S. W. Rep., 996. 3. —Same—Verdict by Lot. Where the verdict was not arrived at by lot or chance, but was a compromise of differences arising between the jurors, it was not a verdict by lot and valid. [Rehearing denied Jan. 8, 1913.—Reporter.]
69 Tex. Crim. 27Pace v. State (1913)
The opinion states the case.
69 Tex. Crim. 31Thompson v. State (1913)
The opinion states the case.
69 Tex. Crim. 35Byrd v. State (1912)
1. —Occupation—Selling Intoxicating Liquors—-Local Option—Jurisdiction. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, defendant moved to transfer the case from the District Court to the County Court, the motion was properly overruled. Fitch v. State, 58 Texas Crim. Rep., 366, and other cases. 2. —Same—Indictment—Approved Precedent. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient. Following Mizell v. State, 59 Texas Crim. Rep., 226, and other cases. 3. —Same—Indictment—Date of Offense—Passage of Law. Where the date of the offense was alleged to be fifteen months after the law became effective under which defendant was prosecuted, it was not necessary to allege in the indictment that the offense occurred subsequent to the passage of the law. 4. —Same—Indictment—Date of Offense—Limitation. Where the indictment alleged that defendant on a given date pursued the business and occupation of selling intoxicating liquors in local option territory, such allegation would admit proof that he was engaged in such occupation within any time prior to the presentment of the indictment within the period of limitation, and in this instance, subsequent to the enactment of the law covering the months charged in the indictment, and it was not necessary to repeat the allegation that he was pursuing such business or occupation each time a sale was alleged to have been made. Davidson, Presiding Judge, dissenting. 5. —Same—Rule Stated—Certainty—Indictment. The certainty required in an indictment is only such as will enable the defendant to plead the judgment that may be given upon it in bar of any ' prosecution for the same offense. 6. —Same—Distinct Offense—Felony—Sale. Where the indictment charged the defendant with pursuing the business or occupation of selling intoxicating liquors in local option territory, the same is a distinct offense from making a sale of intoxicating liquors in local option territory and is a felony. Fitch v. State, 58 Texas Crim. Rep., 366, 7. —Same—Witnesses—Indictment—Indorsement. Where the main State’s witnesses were indorsed on the indictment, a motion requiring the State to indorse on the indictment the names of all its witnesses was correctly overruled. 8. —Same—Jury and Jury Law—Challenges. Where one of the jurors was excused by the State, and the other juror said that the opinion he had formed from hearsay would not influence his verdict, and he was challenged by both the State and the defendant, and no objectionable juror served in the case, there was no error. 9. —Same—Argument of Counsel. Where the remarks of State’s counsel were not of that nature that would call for a reversal, and the jury were orally instructed not to consider the same, there was no reversible error. 10. —Same—Evidence—Other Sales. Where the indictment charged defendant with pursuing the business or occupation of selling intoxicating liquors in local option territory on a certain date, there was no error in admitting testimony of sales of whisky on dates other than the dates named in the indictment. 11. —Same—Age of Witness. There was no error in permitting the State to introduce testimony of the age of the State’s witness. 12. —Same—Evidence—Other Transactions. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error of admitting testimony of large shipments of intoxicating liquor about this time to the defendant. 13. —Same—Evidence—Custom. Upon trial of selling intoxicating liquor as an occupation in local option territory, there was no error in the court’s refusal to permit defendant to show that it was the custom of patrons of his place of business to have defendant order intoxicating liquors for them. 14. —Same—Evidence—Self-Serving Declarations. Where defendant did not testify in the ease, he could not make evidence for himself by proving by others that on a given occasion he had told them certain things. 15. —Same—Charge of Court—Bill of Exceptions. Where the objections to the court’s charge was that the court erred in charging the jury as follows, and then set out. the paragraph of the charge without pointing out the error complained of, the same cannot be considered on appeal. 16. Same—Rule Stated—Civil Cases—Practice on Appeal. The rule in criminal eases under Article 743, Code Criminal Procedure provides that no criminal ease shall be reversed on account of error in the charge of the court, unless the charge is excepted to at the time of the trial or in the motion for new trial and the error pointed out, and shall not be regarded as excepted to as in civil eases. 17. —Same—Reasons of the Rule. As to why the Legislature, as to exceptions to the charge of_ the court, made a distinction between civil and criminal eases, is not a question for the court, but for the law making body, and this construction has been followed by the Court of Criminal Appeals for over twenty years. Following Quintana v. State, 29 Texas Crim. App., 401, and other eases. 18. —Same—Rule Stated—Error Must Be. Pointed Out. While the complaint to the charge of the court may be preserved by bill of exceptions or by a ground in the motion for new trial, yet, in either event, the alleged error must be specifically pointed out or it will not be considered on appeal. Following Sims v. State, 30 Texas Crim. Rep., 605, and other cases. 19. —Same—Legislation Suggested—Procedure. See opinion for suggestions to the Legislature to provide one rule of procedure on appeal applicable alike to all courts and to all cases whether civil or criminal, felony or misdemeanor. 20. —Same—Practice on Appeal—Objections to Charge of Court. The Court of Criminal Appeals, as the law now stands, cannot consider complaints of the charge of the court nor the failure to give the special charges requested, unless the same are pointed out and reserved as the law directs, or unless fundamental error is presented. 21. —Same—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence sustained the conviction, there was no error. [Rehearing denied January, 1913.—Reporter.]
69 Tex. Crim. 44Edwards v. State (1913)
Theft—Statement of Pacts. In the absence of a statement of facts, the charge of the court and the refusal of the continuance without bill of exceptions cannot be considered on appeal.
69 Tex. Crim. 45Rhodes v. State (1913)
The opinion states the case.
69 Tex. Crim. 50Baker v. State (1913)
1. —Game Law—Killing Deer—Date of Offense. Where, upon trial of unlawfully killing a wild deer, the evidence sufficiently fixed the date of the offense and that the deer was killed out of season, the conviction was sustained. 2. —Same—Evidence—Self-serving Declarations. Dpon trial of unlawfully killing a wild deer, there was no error in excluding the self-serving declarations of defendant after the commission of the offense. 3. —Same—Information—Signature. In the absence of a bill of exceptions showing that the information was not signed by the county attorney, the same cannot be considered on appeal; besides, the record showed that the information was so signed. 4. —Same—Charge of Court—Date of Offense. In the absence of a bill of exceptions to the court’s charge in a misdemeanor case and requested charges thereon, the same cannot be reviewed. However, where the date of the offense could not have misled the jury under the court’s charge, there was no error. [Rehearing denied February 5, 1913.—Reporter.]
69 Tex. Crim. 53Polk v. State (1913)
2. Tried below before the Hon. Barry Miller. Appeal from a conviction of keeping a gambling house; penalty, two years imprisonment in the penitentiary.
69 Tex. Crim. 55Crain v. State (1913)
1. —Carrying Pistol—Ignorance of the Law. Ignorance of the law excuses no one, and it is a violation of the law to carry a pistol even though one should place one part of it in one pocket and another part in another pocket; the pistol being in no way out of repair. 2. —Same—Intent—Charge of Court. The question of defendant’s intent does not enter into the case, where the defendant took the pistol apart and carried it around with him to church and other places of public gatherings, and the only excuse was that he did not know it was against the law. 3. —Same—Charge of Court—Intent—Case Stated. Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant carried the pistol" on and about his_ person at different public gatherings, saying that he wanted the party who gave it to him to redeem it; and that he was found with the pistol, having all the different parts of it in his pocket, there was no error in the court’s refusal of a special charge to acquit the defendant if he did not intend to violate the law, and if he took the pistol apart. 4. —Same—Charge of Court—Weight of Evidence. Where, upon trial of unlawfully carrying a pistol, the charge of the court applied the law to the admitted facts, the same was not on the weight of the evidence. Following Cordova v. State, 50 Texas Crim. Rep., 353, and other cases. 5.—Same—Evidence—Firing Fistol. Where defendant was permitted to testify that he did not fire the pistol, there was no error in permitting testimony that the officer who found defendant in possession thereof heard shooting in that direction. [Rehearing denied February 5, 1913.—Reporter.]
69 Tex. Crim. 58Reeves v. State (1913)
The opinion states the case.
69 Tex. Crim. 59Wilder v. State (1913)
1. —Carrying Pistol—Statement of Facts. Where, upon appeal from a conviction of a misdemeanor, the statement of facts was not properly filed, the same could not be considered. 2. —Same—Recognizance—Punishment. Where the alleged recognizance did not state the punishment found by the jury, the same was insufficient. 3.—Same—Special Charges—Statement of Facts. In the absence of a statement of facts, the refusal of requested charges cannot be considered on appeal.
69 Tex. Crim. 60Jefferson v. State (1913)
Murder—Jury and Jury Law—County of Residence—Practice on Appeal— Bill of Exceptions. Where the question, that the juror was incompetent because he was not a legal resident of the county of the prosecution was raised for the first time in the motion for- new trial, the same could not be considered on appeal; besides, defendant accepted the qualification to his bill of exceptions which showed that the juror was a legal resident of said county.
69 Tex. Crim. 62Forrester v. State (1913)
1. —Receiving Stolen Property—Charge of Court—Ordinary Diligence. Where defendant was prosecuted for receiving stolen property knowing it to have been stolen at the time he received it, a charge of the court that-if defendant did not know by the exercise of ordinary diligence that the property was stolen, etc., was reversible error, as defendant must have received the property with a fraudulent intent to convert to his own use and deprive the owner of the value thereof. Following Bray v. State, 41 Texas, 203, and other cases. 2. —Same—Evidence—Other Offenses. Where it was not shown that another theft was connected with the theft for which defendant was being prosecuted as receiving the property stolen, but the two transactions were independent of each other, and this evidence was not properly limited, the same was reversible error. 3. —Same—Evidence—Accomplice. Upon trial of receiving stolen property, the acts and declarations of the persons alleged to have stolen the property after the theft, in the absence of the defendant, were inadmissible; and especially, where the same was not properly limited by the court.
69 Tex. Crim. 65Lane v. State (1913)
1. —Theft—Venue—Charge of Court. Where, upon appeal from a conviction of theft, the defendant asked a peremptory charge of acquittal, and the bill of exceptions did not give the evidence on the question of venue but referred to the statement of facts, the same could not be considered on appeal, and under Article 938, Code Criminal Procedure, there was no reversible error. Following Conger v. State, 63 Texas Crim. Rep., 312; besides, the venue was sufficiently proven. 2. —Same—Practice on Appeal—Venue. Where the evidence shows no venue and a contest is made on that point as required by law, it is not decided that in every instance the want of evidence showing venue must be shown by a bill of exceptions. 3. —Same—Evidence—Fruits of Crime—Statutes Construed—Arrest. Where the evidence showed that what was said and done between defendant and the officer resulted in the recovery of the stolen property, there was no error under Article 810, Code Criminal Procedure, although defendant was under arrest at the time. 4. —Same—Ownership—Husband and Wife. Where, upon trial of theft, the ownership was alleged in the wife, and “ the property was community and in the actual possession of the wife at the time it was stolen, there was no error under Article 457, Code Criminal Procedure. 5. —Same—Want of Consent. Where the alleged stolen property was community and the ownership alleged in the wife and want of consent shown on her part, there was no error. 6. —Same—Evidence—Declarations of Third Party. Where, upon trial of theft, the declarations of a third party with reference to the taking of the property was admitted in evidence in connection with defendant’s declarations as to the same at the same time, there was no error; nor was there error in admitting testimony as to the efforts which were made to find the property. 7. —Same—Indictment—Description of Money—Statutes Construed. Where the allegation in the indictment as to the description of the alleged stolen money was sufficient under Articles 458 and 468, Code Criminal Procedure, there was no error. Following Sims v. State, 64 Texas Crim. Rep., 435. 8. —Same—Charge of Court—Value. Where the uncontroverted evidence showed that the money alleged to have been stolen was over the value of fifty dollars, a complaint that the court’s charge assumed the value of the property to have been proven, there was no error, besides, the court’s charge was not subject to such criticism. 9. —Same—Charge of Court—Fraudulent Intent. Where the court’s charge on fraudulent intent was in substantial accord with approved precedent, there was no error. 10. —Same—Charge of Court—Venue. Where, upon trial of theft, the court’s charge required the jury in order to convict defendant that he fraudulently took the property and converted it to his own use in the county of the prosecution, a complaint as to the court’s charge on venue was not well taken.
69 Tex. Crim. 71Durham and Harris v. State (1913)
1. —Fornication—Statement of Facts—Time of Filing. Neither bills of exception nor statement of facts in County Court cases filed in the lower court after adjournment can be considered by this court unless an order is made during term time authorizing such filing. Following Hamilton v. State, 65 Texas Crim. Rep., 508. 2. —Same—Statutes Construed—Precedent. The Act of May 14, 1907, p. 446, on the subject of filing statement of facts in the County Court in misdemeanor eases is still in force and is not changed by the enactments of the Revised Statutes of 1911, Civil or Criminal. Following Mosher v. State, 62 Texas Crim. Rep., 42. 3. —Same—Legislative Intent—Official Court Stenographer. The Legislature has made a distinction between statement of facts and the filing of same where there is an official court stenographer and where there is not; and also in felony eases, where there is an official court stenographer, and in misdemeanor eases in the Count,'' Court where there is not such stenographer. 4. —Same—Statutes Construed—Independent Statement of Facts. The Act of May 1, 1909, p. 374, provided that nothing in that Act shall be so construed as to prevent‘parties from preparing statement of facts on appeal independent of the transcript of the notes of the official shorthand reporter, and thus did not expressly repeal that part of the Act of 1907, p. 509. 5. —Same—Duty of Codifiers. Under the Act of March 19, 1909, p. 130, the codifiers were simply authorized to adopt such of the Revised Statutes, Civil and Criminal, as had not been repealed or amended, and that they should not change the words or1 punctuations thereof except in cases of evident, clerical or typographical errors, etc. 6. —Same—Statutes Construed—Former Law—Repeal. While the codifiers of the Civil Revised Statutes of 1911 copied the various sections of the various Acts, etc., including the Act of 1909, p. 374; yet, in the Act of 1911, adopting said Revised Statutes, the laws of that Session were not affected by the repealing clause of said Act, and by the Act of March 31, 1911, p. 264, of that Session, the Act of 1909, supra, which had been copied in said Revised Codes, Civil and Criminal, was expressly repealed, and the Act of May 14, 1907, supra, was in no way affected or repealed. 7. —Same—Rule of Construction—Repeal by Implication. See opinion for a full discussion of the rules applicable with reference to the abrogation of particular legislation and repeal by implication, etc. 8. —Same—Case Stated—Statement of Facts—Filing in Misdemeanor Cases. Neither the Revised Statutes, Civil and Criminal, nor the Act of March 31, 1911, p. 264, repeal or otherwise affect the Act of May 14, 1907, p. 446; and a statement of facts in a County Court misdemeanor ease must be filed within term time, unless an order of the court during term time is made authorizing it to be filed within twenty days after adjournment; and it must be filed within the time so allowed and which cannot be extended beyond twenty days. Following DeFriend v. State, 153 S. W. Rep., 881.
69 Tex. Crim. 76Cloud v. State (1913)
The opinion states the case.
69 Tex. Crim. 84Rogers v. State (1913)
Theft—Venue—Statutes Construed. Under Article 245, Revised Code Criminal Procedure, where property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the county where he took the property or in any other county through or into which he may have carried the same. Following Pearce v. State, 50 Texas Crim., Rep., 507, and other cases.
69 Tex. Crim. 86Davis v. State (1913)
Tried below before the Hon. Robt. B. Seay. Appeal from a conviction of assault to rape; penalty, ten years imprisonment in the penitentiary. The State’s testimony showed that while prosecutrix was returning to her home by herself late in the evening, the defendant made an assault upon her and attempted by force to have sexual intercourse with her, and that she resisted and finally escaped from him.
69 Tex. Crim. 87Robinson v. State (1913)
Tried below before the Hon. Robt. B. Seay. Appeal from a conviction of aggravated assault; penalty, a fine of $100 and six months confinement in the county jail.
69 Tex. Crim. 89Horton v. State (1913)
1. —Theft—Continuance—Want of Diligence. Where defendant’s application for continuance showed a total want of diligence, there was no error in overruling same. 2. —Affidavit—Motion for New Trial—Attorney and Client. Affidavits attached to the motion for new trial which were taken and sworn to by appellant’s, counsel as notary public cannot be considered on appeal. Following Maples v. State, 60 Texas Crim. Rep., 169. [Rehearing denied March 12, 1913.—Reporter.]
69 Tex. Crim. 90Rogers v. State (1913)
1. —Assault to Rape—Indictment—Words and Phrases. Where the word, “teo," was in fact, “ten," with reference to the date alleged in the indictment, when taken in connection with the entire sentence employed, there was no error in overruling a motion to quash on that account. Following Lewis v. State, 55 Texas Crim. Rep., 167, and other cases. 2. —Same—Sufficiency of the Evidence. Where, upon trial of assault with intent to rape, the State’s testimony sustained the verdict, there was no error, although there was a conflict of testimony; this is a question of fact for the jury.
69 Tex. Crim. 92Spencer v. State (1913)
1—Murder—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no error. 2. —Same—Newly Discovered Evidence—Cumulative Evidence. While it is public policy to forbid new trials for the purpose of admitting cumulative testimony, yet, where newly discovered testimony is of such cogency and force that it may properly show that an innocent man has been convicted, a new trial should be granted. 3. —Same—Case Stated—New Trial Should be Granted, When. Where defendant was convicted of manslaughter, and the brother of the defendant testified during the trial that he and not his'brother fired the shot at the deceased, and after conviction, it was shown by affidavit of a disinterested witness that this testimony was true, but had been wilfully withheld from the knowledge of the defendant and. his counsel until after trial, a new trial should have been granted, although such newly discovered' evidence was mainly cumulative. 4. —Same—Charge of Court—Independent Impulse. Where there was no evidence that defendant and his brother were acting together at the time of the homicide, upon a previous understanding, and there was evidence that defendant’s brother killed deceased, the court’s charge should not have required that he must have acted upon an independent impulse.
69 Tex. Crim. 98Bussey v. State (1913)
The opinion states the case.
69 Tex. Crim. 100Bosley v. State (1913)
1. —Murder—Continuance—Second Application—Want of Diligence. Where the application for continuance was the second in number and did not state that the testimony could not be procured from any other source, but showed on its face that it could be so procured and, besides, there was a want of diligence in not applying for process after the witness moved out of the county of the prosecution, there was no error in overruling a motion for continuance. 2. —Same—Continuance—Other Testimony. Where another witness testified to the same facts that were expected to be proved by the absent witness, there was no error in overruling the motion. Following Harvey v. State, 35 Texas Crim. Rep., 545. 3. —Same—Continuance—Want of Diligence—Depositions. Where defendant’s motion for continuance showed a want of diligence in applying for process or taking the depositions of the absent witness while out of the State, and besides, the testimony of the absent witness was admitted in evidence by another witness and the only disputed fact was not probably true, there was no error in overruling the motion. Following Wilkins v. State, 35 Texas Crim. Rep., 525, and other eases. ’ ,-Same—Evidence—Contradicting Witness—Regular Order, , Where evidence is introduced to impeach the witness by proof of contradictory statements made to him by others, evidence is competent to show that he had previously made statements agreeing with and corroborating his testimony on trial, even if such evidence is not introduced in regular order. Following Hamilton v. State, 36 Texas Crim. Rep., 372, and other cases. 5.—Same—Evidence—Self-Serving Declarations—Allusion to Defendant’s Failure to Testify. Upon trial of murder, there was no error in excluding the self-serving declarations made by the defendant to his witness after his arrest, and there was no reversible error in the State’s counsel’s remark that if they wanted^ to prove that fact, to place defendant on the stand; the same occurring during trial, and was but an incidental remark of State’s counsel, and not such an allusion to defendant’s failure to testify as to be cause for reversal. Following Combs v. State, 55 Texas Crim. Rep., 332, and other cases. 6. —Same—Charge of Court—Circumstantial Evidence—Alibi. Where, upon trial of murder, the case being one of circumstantial evidence, and defendant claimed an alibi, the court properly submitted these issues in a proper charge; no exact words being necessary in charging on circumstantial evidence, and the failure to use the words, ‘ ‘ and -none other,' ’ was not material. Following Henderson v. State, 50 Texas Crim. Rep., 266. 7. —Same—Defendant as a Witness—Charge of Court. The court’s failure to charge the jury that the defendant could testify in his own case, but a failure to do so should not be considered against him or alluded to or discussed by the jury; there being no contention that the jury did allude thereto, was not reversible error. Following Morrison v. State, 40 Texas Crim. Rep., 473. 8. —Same—Sufficiency of the Evidence. Where, upon trial of murder in the second degree and conviction thereof, the evidence sustained the conviction, there was no error. 9. —Same—Affidavits—Matters Occurring After Trial—Practice on Appeal. This court cannot consider affidavits concerning matters occurring since the trial, and can only look to the record made on the trial of the case from which the appeal is prosecuted; besides, the question of former jeopardy set up in these affidavits could not apply. ,
69 Tex. Crim. 107Flagg v. State (1913)
1. —Theft of Horse—Statement of Facts. Where the alleged statement of facts was not approved by the trial judge, the same cannot be considered on appeal. 2. —Same—Circumstantial Evidence—Charge of Court. While it would be better practice for the court to inform the jury, when he gives a charge on circumstantial evidence, yet it is not necessary to do so, where the court, in fact, charges on such evidence.
69 Tex. Crim. 107Johnson v. State (1913)
1.—Keeping Disorderly House—Evidence—Other Transactions. Upon trial of keeping a disorderly house, there was no error in refusing to admit testimony as to other complaints against other parties by the State’s witness; the latter being an officer. 2. —Same—Evidence—Acts of Defendant After Arrest. Where defendant was prosecuted for keeping a disorderly house for the sale of intoxicating liquors, etc., there was no error in rejecting testimony by the defense that he kept his doors closed after the complaint was filed against him. 3. —Same—Evidence—General Deputation. Upon trial of keeping a disorderly house for the sale of intoxicating liquors without license, testimony as to the general reputation of the place is admissible in evidence. Following Joliff v. State, 53 Texas Crim. Rep., 61. 4. —Same—Evidence—Bill of Exceptions. Where the .bill of exceptions does not disclose what answer, if any, the witness made to the question, the matter cannot be reviewed on appeal. Following Tweedle v. State, 29 Texas Crim. Rep., 586. 5. —Same—Evidence—Bevenue License. Upon trial of keeping a disorderly house for the sale of intoxicating liquors without license, there was no error in permitting the witness to testify that he saw an internal revenue license posted in the place of defendant’s building. 6. —Same—Evidence—Contradicting Witness. Whenever either the State or the defendant seeks to impair the credit of a witness by a line of investigation, it is permissible for the opposite side to show the real facts in order that the jury may determine whether such circumstances do or do not affect his credit. 7. —Same—Buie Stated—Contradicting' Witness. Where, defendant, on cross-examination, elicited the fact from the State’s witness that he had been indicted for running a gambling house, there was no error in permitting the State to show that such case was dismissed after an acquittal of one of his co-defendants. 8. —Same—Evidence—Charge of Court—Social Club—Subterfuge. Where, upon trial of keeping a disorderly house for the sale of intoxicating liquors, etc., the defendant elicited testimony that the defendant was president of a social club, etc., but there was no evidence that a charter had been obtained, and that if it had been obtained it was a subterfuge and was no defense against selling liquors without license, and the court so instructed the jury, there was no error in refusing a requested instruction that the burden of proof was on the State in this behalf. 9. —Same—Charge of Court—Sunday Law. Where defendant was charged with keeping a disorderly house for the sale, of intoxicating liquors without license, the question of a violation of the Sunday Law was not involved, and there was no error in refusing requested charges thereon; besides, they were not the law.
69 Tex. Crim. 113Blackshear v. State (1913)
1. —Murder—Charge of Court—Aggravated Assault—Deadly Weapon. Where, upon trial of murder and a conviction of manslaughter, there was no testimony that the knife used by the defendant was a deadly weapon, and it was not conclusively shown that defendant intended to kill deceased, the court should have submitted the issue of aggravated assault, and the failure to do so was reversible error. 2. —Same—Self-defense. Where it was not clear that the issue of self-defense was raised by the evidence and the cause was remanded on other grounds, this question need not be decided; however, the fact that others and not the deceased threw rocks at defendant would not justify the homicide. 3. —Same—Charge of Court—Principals—Converse. Proposition. Where, upon trial of murder and a conviction of manslaughter, the evidence showed that defendant acted with others in the commission of the offense, the court properly submitted the law on principals; however, the converse proposition should have also been submitted. Following McMahon v. State, 46 Texas Crim. Rep., 540, and other cases. 4. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence raised the issue of manslaughter, the court properly submitted that issue to the jury. 5. —Same—Negligent Homicide—Charge of Court. Where the evidence did not raise the issue of negligent homicide, there was no error in the court’s failure to charge thereon. 6. —Same—Deadly Weapons—Charge of Court. Where the question of deadly weapon was raised by the evidence, the court should have charged thereon.
69 Tex. Crim. 116Meadows v. State (1913)
Appeal from the District Court of McLennan. Trial before the Hon. Richard I. Munroe. Appeal from a conviction of theft of mules; penalty four years’ imprisonment in the penitentiary. The opinion states the case.
69 Tex. Crim. 117Alsup v. State (1912)
The opinion states the case.
69 Tex. Crim. 123Johnson v. State (1913)
The opinion states the case.
69 Tex. Crim. 125Witty v. State (1913)
The opinion states the case.
69 Tex. Crim. 134Sanchez v. State (1913)
1. —Murder—Evidence—Reproduction of Testimony—Predicate. "Where, upon trial of murder, there was a sufficient predicate laid to admit the testimony given on a former trial by a State’s witness who had left the State, there was no error. Following Robertson v. State, 63 Texas Crim. Rep., 216. 2. —Same—Charge of Court—Reasonable Doubt. Where, upon trial of murder, the court’s definition of reasonable doubt was in accordance with Article 765, Code Criminal Procedure, without further amplification or explanation, the same was sufficient and proper practice. Following Thompson v. State, 37 Texas Crim. Rep., 227, and other eases. 3. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon. 4. —Same—Requested Charges. Where one requested charge was not applicable to the facts and the other embraced in the court’s main charge, there was no error in refusing them. 5. —Same—¡Evidence—Size—Age. Where the issue was material, there was no error in admitting testimony as to the relative size and age of the parties. 6. —Same—Sufficiency of the Evidence. Where, upon trial of murder, a conviction of- murder in the first degree was sustained by the evidence under a proper charge of the court, there was no error.
69 Tex. Crim. 135Fletcher v. State (1913)
The opinion states the case.
69 Tex. Crim. 138Brown v. State (1913)
1. —Adultery—Motion for New Trial—Jurisdiction. Where, upon appeal from a conviction of adultery, the record showed that the court below permitted defendant to execute a temporary appeal recognizance and thereupon allowed him within two days after trial to file his motion for new trial, which was then overruled, notice of appeal given and a new recognizance entered into, this court’s jurisdiction did not attach by reason of the first recognizance. 2. —Same—Sufficiency of the Evidence—Circumstantial, Evidence. Where, upon trial of unlawfully living together in adultery, the evidence showed that both parties were married at the time to other parties and that they lived together practically as man and wife, and the evidence further circumstantially showed that they had sexual intercourse while thus living together, the conviction was sustained. 3. —Same—Charge of Court—Requested Charges. Where, upon trial of adultery, the requested charges which were refused were substantially covered by the court’s main charge, there was no error. 4. —Same—Evidence—Shorthand Facts—Bill of Exceptions. Where, upon trial of adultery, a State’s witness was permitted to testify that defendant lived together with his paramour, this was a shorthand rendition of the facts, and not a conclusion of the witness, and therefore admissible; besides, the bill of exceptions was defective. Following Conger v. State, 63 Texas Crim. Rep., 312. 5. —Same—Leading Question—Bill of Exceptions. Where, upon trial of adultery, the question asked by the State’s counsel how long defendant and his paramour lived together was not leading, there was no error; besides, the bill of exceptions was defective. Following Carter v. State, 59 Texas Crim. Rep., 73. S.—Same—Evidence—Bill of Exceptions. Where, upon trial of adultery, the evidence showed that the defendant and his paramour lived together for some time, there was no error in admitting testimony that delivery wagons carried groceries to the house where they lived together and that defendant told a State’s witness that his paramour was a married woman at the time, etc.; besides, the bill of exceptions was defective and all this testimony'was brought out by defendant. 7. —Same—Evidence—Practice on Appeal. It is too late to raise objections to the admission of testimony for the first time in the motion for new trial; besides, the testimony that defendant’s paramour was a prostitute was admissible. 8. —Same—Indictment—Different Counts. There was no error in overruling defendant’s motion in arrest of judgment because of the two counts in the indictment under which the cause was submitted. Following Cabiness v. State, 66 Texas Crim. Rep., 409. [Rehearing denied March 19, 1913.—Reporter.]
69 Tex. Crim. 145Baggett v. State (1912)
1. —Arson—Accomplice—Continuance. Where defendant was tried as an accomplice for arson, and the State claimed by the witness who burned the house that the defendant employed said witness to do the burning and the agreement was made at a certain time and place, and defendant’s motion for continuance alleged that he expected to show by the absent witness that at said time and place the witness was present and that no such agreement was made between the parties, the continuance" should have been granted. 2. —Charge of Court—Accomplice—Corroboration. Where the State claimed that the defendant burned the alleged house by employing another to do so and the court submitted a general charge on the corroboration of accomplice’s testimony, but failed to direct the attention of the jury to the fact that the corroboration should be as to whether defendant employed State’s witness to burn the house, and a special charge submitting this issue was requested, the same should have been given. 3. —Same—Newly Discovered Evidence. Where the judgment is reversed and the cause remanded upon other grounds, the question of newly discovered evidence need not be considered.
69 Tex. Crim. 147Scott v. State (1912)
Tried below before the Hon. George Morrison. Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.
69 Tex. Crim. 150Yarbrough v. State (1912)
1. —Theft—Circumstantial Evidence—Rule Stated. In cases of circumstantial evidence, the rule is that each fact necessary to establish guilt must be proven, and the facts and circumstances must not only be consistent with guilt, but inconsistent with any other reasonable hypothesis than the guilt of the accused. 2. —Same—Case Stated—Insufficiency of the Evidence. Where, upon trial of theft, the evidence did not show the finding of any of the stolen property and the case depended entirely on circumstances, it was necessary to show that defendant, and defendant alone, was in such juxtaposition to the property as that he and he alone could have stolen it, or positively to have shown that others who had equal opportunity to steal the property did not do so. 3. —Same—Circumstantial Evidence—Suspicions. Suspicious circumstances alone are not sufficient upon which to base a conviction; the circumstances must unerringly point out the defendant as the guilty person when circumstantial evidence is relied upon. Following Hogan v. State, 13 Texas Crim. App., 319, and other eases.
69 Tex. Crim. 152Harrison v. State (1912)
The opinion states the case.
69 Tex. Crim. 155Cuellar v. State (1913)
The opinion states the case.
69 Tex. Crim. 158Mueller v. State (1913)
1. Illegal Practice of Medicine—Indictment. Where, upon trial of unlawfully practicing medicine, the indictment followed approved precedent, the same was sufficient. Following Singh v. State, 66 Texas Crim. Rep., 156, and other eases. 2. —Same—Election by State—Different Courts. Where the indictment in a misdemeanor case charged the offense in two separate counts, the State could not be required to elect; besides, the court only submitted pne count and this in itself was an election. 3. —Same—Sufficiency of the Evidence—Public Professing. Where, upon trial of unlawfully practicing medicine by publicly professing to be a physician, without having first registered a license, etc., the evidence supported the conviction, there was no error; see opinion for facts showing that defendant held himself out as a physician for pay without license. 4. —Same—Evidence—Advertisement—Practitioner. Where, upon trial of unlawfully practicing medicine, the State was permitted to introduce in evidence defendant’s advertisement by which he offered to practice medicine, there was no error, although the advertisement did not in so many words state that he was a practitioner or physician. 5. —Same—Evidence—Names of Persons Treated. Upon trial of unlawfully practicing medicine without license for pay, there was no error in introducing numerous witnesses for the State who stated that they had been treated by defendant for various ailments and diseases, although they were not named in the indictment. 6. —Same—Evidence—Husband and Wife—Payment. Upon trial of unlawful practicing medicine, there was no error in showing that the persons treated by the defendant paid defendant’s wife in his presence for such treatment; besides, it was shown by other testimony that defendant received payment directly and indirectly for such medical treatment. 7. —Same—Precedent—Practice on Appeal. Where, upon appeal from a conviction of unlawfully practicing medicine, the questions raised had been discussed and decided adversely to appellant in numerous cases, it was not necessary to pass on them again. Following Ex parte Collins, 57 Texas Crim. Rep., 2.
69 Tex. Crim. 161Ex Parte R.C. Botts (1913)
1. —City Charter and Ordinance—Police Power—Hogs at Large. A hog is that character of animal that his keeping may be absolutely prohibited in the thickly inhabited portions of a city, and where the ordinance restricted the keeping of hogs in the City of Gonzales to certain limits, describing the metes and bounds in which hogs could not be kept, which covered about, one-half the corporate limits of the city, the same was a valid ordinance and a conviction of relator for a violation thereof in the Corporation Court will not be set aside on writ of habeas corpus. Following Ex parte King, 52 Texas Crim. Rep., 383, and other cases. 2. —Same—Judicial Knowledge—Hogs, Nature of—Police Power. The courts will take judicial cognizance of the nature and habits of the hog, and the results incident to his keeping and confinement within the limits of the populous portion of a city, and that their keeping may be absolutely prohibited therein under the police regulations of the city. Following Ex parte Glass 90 S. W. Rep., 1108. [Rehearing denied March 12, 1913.—Reporter.]
69 Tex. Crim. 163Williams v. State (1913)
The opinion states the case.
69 Tex. Crim. 165Collum v. State (1913)
1. —Forgery—Indictment—Grand Jury—Description—Variance. Where, upon trial of forgery, the grand jury did not describe in the indictment the alleged forged instrument as it was in fact given and as they could have described it by fair and reasonable diligence, the indictment was not sufficient, and there was therefore a variance between the allegation and the instrument forged, and the judgment must be reversed and the cause remanded. 2. —Same—Buie Stated—Diligence—Indictment. Wherever the grand jury could have known by ordinary diligence the true facts, they are not authorized to set out by averment in an indictment an excuse for not setting out the real facts. Following Carlton v. State, 60 Texas Crim. Rep., 584, and other cases.
69 Tex. Crim. 169Manley v. State (1913)
The opinion states the case.
69 Tex. Crim. 175Pierce v. State (1913)
The opinion states the case.
69 Tex. Crim. 183Ex Parte W.M. Andrus (1913)
1. —Habeas Corpus—Jurisdiction—Practice on Appeal. It is necessary under the statute that a trial for bail, after indictment found be heard in the county where the homicide oecured and where the indictment is found; and where a district judge had granted a writ of habeas corpus in a ease in which there was a change of venue, the writ is returnable to the county in which the indictment was found. But an original application to this Court will be heard. 2. —Same—Denial of Bail. Where the proof is evident in a capital case, the relator is not entitled to bail. [Rehearing denied February 19, 1913.—Reporter.]
69 Tex. Crim. 184Perry v. State (1913)
The opinion states the case.
69 Tex. Crim. 187Mayhew v. State (1913)
The opinion states the case.
69 Tex. Crim. 209Hendricks v. State (1913)
1. —Murder in First Degree—Charge of Court. Where defendant was convicted of murder in the second degree, the court's charge on murder in the first degree need not be considered on appeal; however, the charge was correct. 2. —Same—Charge of Court—Murder in the Second Degree. Where the court submitted the issues of manslaughter and self-defense and submitted a charge on murder in the second degree, which has often been approved by this court, there was no error and it is wholly unnecessary to define in the latter the words, "tend to mitigate, excuse or justify the act." 3. —Same—Murder in the Second Degree—Charge of Court. Where the court’s charge on murder in the second degree was in full compliance with approved precedent and also charged fully on manslaughter and defined adequate cause, it was not necessary to do so again in the charge on murder in the second degree. Following Best v. State, 58 Texas Crim. Rep., 327. 4. —Same—Charge of Court—Manslaughter—Adequate Cause. Where the court’s charge on manslaughter was more favorable to defendant than called for by the evidence, when construed as a whole, and his definition of adequate cause was correct, there was no error. 5. —Same—Charge of Court—Burden of Proof—Reasonable Doubt. Where the court’s charge on manslaughter in connection with his charge on murder properly applied the doctrine of reasonable doubt, the contention that the court’s charge placed the burden on defendant is untenable. Distinguishing Huddleston v. State, 54 Texas Crim. Rep., 93. 6. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction of murder in the second degree, there was no reversible error, although the jury might have reached a different verdict. [Behearing denied March 19, 1913.—Beporter.]
69 Tex. Crim. 214Powers v. State (1912)
The opinion states the case.
69 Tex. Crim. 216Jones v. State (1913)
The opinion states the case.
69 Tex. Crim. 221Loan v. State (1913)
The opinion states the case.
69 Tex. Crim. 223Misher v. State (1912)
1.—Occupation—Intoxicating Liquors—Local Option—Indictment—Precedent. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors m local option territory, the indictment 'followed approved precedent, there was no error. Following Slack v. State, 61 Texas Crim. Rep., 372. 2. —Same—Other Sales—Evidence. Upon trial of pursuing the business or occupation of selling intoxicating liquors in local option territory, testimony of any and all sales made by defendant was admissible as a circumstance going to show that he was engaged in said business. ' Following Robinson v. State, 66 Texas Crim. Rep., 392, 147 S. W. Rep., 243, and other cases. 3. —Same—Charge of Court—Evidence—Record—Date of Sale. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the witnesses for the State were unwilling witnesses and could not fix the date of the different sales by the defendant, it was permissible to show by the court record of their former testimony at the examining trial the date of such sales; the court instructing the jury that they must acquit defendant if they had a reasonable doubt that he made at least two sales as charged in the indictment to persons named therein, and that he pursued the occupation, etc. 4. —Same—Rule Stated—Evidence—Recollection of Witness—Date of Offense. If a witness had no present recollection of the fact, if he is able to refer to data which he knows was correct at the time it was made, the data may be used to prove the fact, even though at the time of the trial, the witness had no independent recollection of the fact. Following Kimbrough v. State, 28 Texas Crim. App., 367, and other cases. 5. —Same—Charge of Court—General Objections. An objection that the court erred in submitting to the jury, paragraph 1 of the court's general charge, without pointing out the error, is too general to be considered on appeal. Following Quintana v. State, 29 Texas Crim. App., 401. 6. —Same—Intoxicating Liquor—Charge of Court—Beer. A charge of the court that beer is an intoxicating liquor as a matter of law is proper. Following Moreno v. State, 64 Texas Crim. Rep., 660, 143 S. W. Rep., 156. 7. —Same—Number of Sales. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the indictment alleged four separate and distinct sales, the contention that the proof must show each of such sales is untenable, as it is only necessary to prove two. 8. —Same—Charge of Court—Definition of Occupation. Where the court instructed the jury that in order tp constitute the occupation of selling intoxicating liquors, etc., it is meant that which occupied a part of the attention and time of the defendant as a business or calling and which he pursued for the purpose of profit and gain, and that he made at least two sales prior to the filing of the indictment, the same was sufficient and not on the weight,of the evidence. [Rehearing denied January 29, 1913.—Reporter.]
69 Tex. Crim. 230Green v. State (1913)
The opinion states the case.
69 Tex. Crim. 232Butler v. State (1913)
The opinion states the case.
69 Tex. Crim. 232Jones v. State (1913)
The opinion states the case.
69 Tex. Crim. 233Rios v. State (1913)
Theft—Insufficiency of the Evidence. Where, upon trial of theft, the evidence did not show with any degree of certainty that defendant was the man who stole the alleged horse, if it was stolen, the evidence was insufficient to sustain a conviction.
69 Tex. Crim. 234Wingate v. State (1912)
1.—Assault to Rob—Charge of Court—Alibi. Where, upon trial of assault with intent to rob, the State’s evidence, sustained the conviction, there was no error, although defendant attempted to show an alibi which the court properly submitted to the jury. 2. —Same—Motion for New Trial—Bill of Exceptions. Where the motion for new trial was based on many grounds, and appellant’s bill of exceptions was to .the court’s action overruling said motion, the same cannot be considered on appeal. 3. —Same—Evidence—Bill of Exceptions—Identification. . Where defendant’s bill of exceptions did not point out the error as to the admission of testimony concerning the identification of defendant, the same cannot be considered on appeal; besides, such identification at the police station was an established fact. 4. —Same—Evidence—Pistol. Upon trial of assault with intent to rob, there was no error in introducing testimony that the officer found a pistol near the scene of the attempted robbery; there being other testimony that defendant had a pistol at that time. 5. —Same—Evidence—Confessions—Contradicting Witness. Where, upon trial of assault with intent to rob, defendant introduced as a witness one of his alleged companions who was shown to have been with him at the time, for the purpose of proving an alibi, there was no error in permitting the State to introduce the confessions of said witness, which completely proved the fact of the attempted robbery by the defendant; the court properly limiting such testimony to the purpose of impeachment. 6. —Same—Charge of Court—Principals. Where, upon trial of assault with intent to rob, the evidence showed that other persons acted together with defendant in the alleged offense, the court correctly charged on the law of principals. 7. —Same—Charge of Court—Specific Intent to Bob. Where the court’s charge required an assault with intent to then and there by such assault and violence to rob the party injured, a complaint that the court’s charge failed to instruct on specific intent to rob was untenable. 8.—Same—Indictment. Where, upon trial of assault with intent to rob, the indictment followed approved precedent, the same was sufficient. ' 9. —Same—Highest Penalty. Where, upon trial of assault with intent to rob, the jury fixed the highest penalty for this offense and the evidence supported the verdict, there was no error. 10. —Same—Stating Facts—Practice on Appeal. Where the motion for rehearing pointed out errors in the statement of the facts in the original opinion which could not change the result, there was no error in overruling same on this ground. 11. —Same—Confessions—Impeaching Witness—Charge of Court. Where the alleged confessions introduced in evidence were not those of defendant, but those made by a companion and were introduced to impeach the latter’s testimony with reference to defendant’s alibi, there was no error; the court properly limiting such testimony for the purposes of impeachment.
69 Tex. Crim. 242Bowen v. State (1913)
The opinion states the case.
69 Tex. Crim. 245Peace v. State (1913)
Theft—Insufficiency of the Evidence. Where, upon.trial of theft, the evidence did not show that the defendant had in Ms possession any of the alleged stolen property or that he had ever taken same, and the property recovered was never identified as being that alleged to have been stolen, the conviction could not be sustained.
69 Tex. Crim. 248Maxwell v. State (1913)
1. —Murder—Statement of Facts—Ninety Days. Under no construction can it be held that the Legislature intended to grant more than ninety days in which to file a statement of facts in the trial court, ■ and where such statements was filed one hundred and five days after the adjournment of the trial court, the same cannot be considered on appeal. 2. —Same—Misconduct of Jury—Statement of Facts. In the absence of á statement of facts, the ground in the motion for new trial complaining of the misconduct of the jury could not be considered, especially, where same was filed after adjournment of court. Following Prebest v. State, 60 Texas Crim. Rep., 608. 3. —Same—Argument of Counsel. Where, upon appeal from a conviction of murder in the second degree, it appeared that the argument of State’s counsel was made in response to that of appellant’s counsel, and the court withdrew said remarks from the jury, there was no error. 4. —Same—Charge of Court—Practice on Appeal, In the absence of a statement of facts, the rule is if the charge of the court is applicable to any state of facts, provable under the indictment, the presumption is that the court charged the law and all the law called for under the testimony.
69 Tex. Crim. 250Gould v. State (1913)
1. —Sunday Law—Transcript. See opinion suggesting legislation with reference to filing transcript in the Appellate Court. 2. —Same—Indictment. Where, upon trial of a violation of the Sunday Law, the indictment followed approved precedent, there was no error. Following Gould v. State, 66 Texas Crim. Rep., 122. 3. —Same—Practice on Appeal. Where all the questions raised by bills of exception and motion for new trial were decided adversely to appellant in a companion case, they need not be again considered.
69 Tex. Crim. 251Davis v. State (1913)
The opinion states the case.
69 Tex. Crim. 253Ex Parte Douglas Copley (1913)
The opinion states the case.
69 Tex. Crim. 254Parish v. State (1913)
1. —Aggravated Assault—Evidence—Contradicting Witness—Malice. Where, upon trial of aggravated assault, the party alleged to have been injured testified that he and the defendant had always been friends and that he did not put any dough containing poison in front of defendant’s house and did not poison defendant’s chickens therewith, the court should have permitted defendant to show the alleged injured party did all these things, to show the malice of the State’s witness. 2. —Same—Evidence—Credibility of Witness. Where, upon trial of aggravated assault, the party alleged to have been injured testified that he had not been able to work, etc., and to be out and about for some time after the injury, the court should have permitted the defendant to show that the said party, the day after 'the difficulty, was around defendant’s place armed with a gun, cursing and abusing defendant and daring him to come out and settle the difficulty. 3. —Same—Charge of Court—Force—Self-defense. Where, upon trial of aggravated assault, the evidence showed that the defendant was acting in self-defense, a charge of the court curtailing the defendant’s right of self-defense to the issue of more force than was necessary, etc., was reversible error; the defendant having requested proper charges on this issue of the case. 4. —Same—Charge of Court—Weight of Evidence—Self-defense. Where, upon trial of aggravated assault, the evidence raised the issue of self-defense, a charge of the court eliminating such defense was reversible error. 5. —Same—Serious Bodily Injury—Insufficiency of the Evidence. Where serious bodily injury was alleged as a cause of aggravation in a trial for aggravated assault, and the evidence did not show any such serious bodily injury inflicted upon the party alleged to have been injured, the conviction can not be sustained.
69 Tex. Crim. 263Oliver v. State (1913)
Tried below before R. W. Simpson. Appeal from a conviction of burglary of a railway car; penalty, two years imprisonment in the penitentiary.
69 Tex. Crim. 265Jones v. State (1913)
The opinion states the case.
69 Tex. Crim. 269Lucas v. State (1913)
1. —Murder—Continuance—Want of Diligence. Where the court overruled the application for continuance which clearly showed a lack of diligence, there was no error. 2. —Same—Indictment—Precedent. Where, upon trial of murder, the indictment followed approved precedent, there was no error in overruling a motion to quash. 3. —Same—Sufficiency of the Evidence—Pleading—Proof. Where, upon trial of murder, the evidence supported the conviction of that count in the indictment which charged the defendant with killing deceased by beating and bruising her with a weapon the name, character and description of which was to the grand jury unknown, there was no error on this ground. 4. —Same—Charge of Court—Voluntary Use of Intoxicating Liquors. Upon trial of murder, where there was no evidence that defendant claimed that he was insane from the recent voluntary use of intoxicating liquors, there was no error in the court’s failure to charge upon art. 41, Penal'Code; besides, the complaint in the motion for new trial on this ground was entirely too general, and no special charge having been requested and no bill of exceptions reserved at the proper time. Following Byrd v. State, 151 S. W. Rep., 1068; Ex parte Evers, 29 Texas Crim. App., 539, and other cases. 5. —Same—Use of Intoxicating Liquors—Intoxication no Defense. The mere fact of intoxication at the time of the homicide will not affect the crime nor the degree of murder. Following Clore v. State, 26 Texas Crim. App., 624, and other cases. 6. —Same—Misconduct of Jury—Statement of Facts. Where the statement of facts, on the motion for new trial attacking the verdict of the jury for misconduct of the jury, was filed after the adjournment of the trial court, the same could not be considered on appeal; besides, the record showed that there was no such misconduct. Following Knight v. State, 64 Texas Crim. Rep., 541, 144 S. W. Rep., 967 and other cases. 7. —Same—Corpus Delicti—Sufficiency of the. Evidence. Where, upon trial of murder, the evidence showed that the deceased was killed by violence to her person and that the defendant and no other killed her, the corpus delicti was established and the conviction of murder in the second degree sustained. [Rehearing denied April 16, 1913.—Reporter.]
69 Tex. Crim. 275Summerlin v. State (1913)
The opinion states the case.
69 Tex. Crim. 280Martinez v. State (1913)
1. —Assault to Murder—Statement of Facts—Ninety Days Limit. Where the statement of facts and bills of exception were filed four months and one day subsequent to the adjournment of the trial court, the same cannot be considered on appeal, and this, although the attorneys representing them on the trial abandoned the case and other attorneys were employed, no sufficient reason being shown why diligence was not used by the defendant to file said statement of facts and bills of exceptions within ninety days from adjournment of court. 2. —Same—Assignments of Error. Assignments of error filed four months subsequent to the adjournment of the trial court cannot be considered; but if considered, there was no error. Following Wilson v. State, 52 Texas Crim. Rep. 173, and other cases. 3. —Same—Plea of Not Guilty—Apostrophe—Practice on Appeal. Under Article 938, Code Crim. Proc. as amended, this court must presume that the defendant was arraigned and pleaded to the indictment, unless such issue is raised in the court below by proper bills of exception, and therefore, a contention that the judgment did not show that the defendants entered a plea of not guilty cannot be considered; besides, the record showed that such plea was made, and the improper use of an apostrophe is entirely too technical. 4. —Same—Charge of Court—General Objections. Where the objection to the court's charge is that the court erred in not charging on mutual combat, as defendant's testimony warranted such charge, the same is entirely too general to be considered on appeal; besides, this issue was not raised by the evidence and there was no bill of exceptions or complaint in the motion for new trial. 5. —Same—Practice on Appeal—Assignment of Error. Where errors are attempted to be pointed out for the first time in this court in the assignments of error and in the brief, they cannot be considered on appeal. Art. 743, C. C. P. 6. —Same—Objections—Practice" on Appeal. That the verdict and judgment are contrary to the law and the evidence is too general an objection, unless the evidence is insufficient to sustain the verdict, .which it is not. 7. —Same—Jury and. Jury Law—Bill of Exceptions. In the absence of a bill of exceptions reserved to the formation of the jury or the selection of any member of the jury, the same cannot be considered on appeal. 8. —Same—Change of Venue. In the absence of an application made to change the venue, and nothing in the record to disclose any reason therefor, there was no error. 9. —Same—Evidence—Papers in Civil Suits—Bill of Exceptions. Where the bill of exceptions did not include the petition for divorce, which defendant desired to introduce, the question cannot be reviewed; besides, there was no error in excluding it. Following Fifer v. State, 64 Tex. Crim. Rep. 203, 141, S. W. Rep., 989. 10. —Same—Evidence—Res Gestae. Where the exclamation of the injured party introduced in evidence was res gestae, the same was admissible; besides, the bill of exceptions raising this question was defective. 11. —Same—Evidence—Aggravated Assault. Where, upon trial of assault with intent to murder, defendant attempted to introduce testimony as to improper relations between his wife and the alleged injured party, but the record showed that he had since frequently met such injured party in a friendly way, the same was inadmissible to reduce the degree of the offense, even if the statements of facts and bills cf exception were considered. 12. —Same—Reform of Judgment—Verdict—Practice on Appeal. Where the verdict assessed the punishment against one of the defendants at five years in the penitentiary, and the judgment and sentence for a period of ten years, this court, under Article 938, Code Criminal Procedure, will correct and reform the judgment so as to make it conform to the verdict. Following McCorquodale v. State, 54 Texas Crim. Rep., 344.
69 Tex. Crim. 285Yeary v. State (1913)
Aggravated Assault—Statement of Facts. Where, upon appeal from a conviction of aggravated assault, no order of record appeared authorizing the filing of a statement of facts after term time, the same could not be considered.
69 Tex. Crim. 286Hollis v. State (1913)
1. —Burglary—Evidence—Description of Keys. Where, upon trial of burglary, the circumstances indicated that the alleged room had been unlocked, there was no error in admitting testimony describing certain keys found in defendant’s possession, one of which exactly fitted the keyhole of the door of the said room, and it was not necessary to exhibit said keys to the jury as the best evidence; besides, it was shown that the keys were lost. 2. —Same—Breaking—Sufficiency of the Evidence. Under Article 1308, Penal Code, the unlocking and opening of a locked door and an entry thus effected, where the intent to steal is shown, or an actual theft is shown, this would be a breaking under the law, even though the burglar, after thus effecting an entry and committing the theft, in leaving should again close and lock the door and leave it in exactly the same condition as before he entered, and where such a state of facts were shown, the same was sufficient to sustain a conviction for burglary. 3. —Same—Charge of Court—Bequested Charges. Where, upon trial of burglary in the daytime, the court fully charged the law as applicable to the facts and also submitted the requested charges which were in point, and the evidence amply supported the conviction, there was no error.
69 Tex. Crim. 291Harrison v. State (1912)
Tried below before the Hon. J. H. Arnold. Appeal from a conviction of accessory after the fact; penalty, two years imprisonment in the penitentiary. The opinion states the case.
69 Tex. Crim. 307Galloway v. State (1913)
Local Option—Law in Force. Where, upon trial of a violation of the local option law, there was no evidence that local option was in force, and the defendant requested a charge to find defendant not guilty on this ground, which was refused, the same was reversible error.
69 Tex. Crim. 307Lafell v. State (1913)
The opinion states the case.
69 Tex. Crim. 312Lester v. State (1913)
1. —Occupation—Selling Intoxicating Liquors—Local Option—-Insufficiency of the Evidence—Charge of Court. "Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence did not show that the defendant sold such liquors to the parties alleged in the indictment, and did not show that local option was in force, and the court did not charge the law of the case, the conviction could not be sustained. 2. —Same—Evidence—Law in Force. "Where, upon trial of pursuing the occupation of selling intoxicating liquors, in local option territory, it was not shown that local option was in force, the mere fact that the State offered such testimony, but the record did not show that it was introduced, the same was insufficient.
69 Tex. Crim. 316French v. State (1913)
Stock Law—Recognizance—Appeal Bond. Where, upon appeal from a conviction of the stock law, the record showed that appellant did not enter into a recognizance during term time, but after adjournment entered into an appeal bond, this court has no jurisdiction.
69 Tex. Crim. 317Walls v. State (1912)
The opinion states the case.
69 Tex. Crim. 320Valigura v. State (1913)
The opinion states the case.
69 Tex. Crim. 322Poteet v. State (1913)
1. —Embezzlement—Indictment—Description of Money. Where, upon trial of embezzlement, the indictment followed approved precedent and properly described the money embezzled, there was no error in overruling a motion to quash. 2. —Same—Charge of Court—Venue. Where, upon trial of embezzlement, the court’s charge specifically required the jury to believe beyond a reasonable doubt that the defendant fraudulently embezzled the alleged money in the county of the prosecution, the same was sufficient. 3. —Same—Jurisdiction—Statutes Construed. Under Article 251, Code Criminal Procedure, where the defendant received the alleged embezzled money in the county of the prosecution, the jurisdiction of the court was sustained. 4. —Same—Case Stated—Jurisdiction—Venue. Where, upon trial of embezzlement, the evidence showed that by agreement between the defendant and the prosecutor, the defendant drew on the prosecutor for the amount of the alleged embezzled money through a bank in the county of the prosecution to which the prosecutor paid the money after receiving a letter from the defendant directing him to do so,, and that in fact and in law the defendant received said money in' the county of the prosecution, although he was at the time in- another county, the jurisdiction of the offense properly attached to the county of the prosecution. 5. —Same—Partnership—Charge of Court. Where, upon trial of embezzlement, there was slight evidence of partnership between defendant and prosecutor and the court submitted the issue to the jury, who found adversely to defendant thereon, there was no error. 6. —Same—Charge of Court—Practice on Appeal. Where no reason is given in the requested charge itself why it should have been submitted and no such reason was set up in the motion for new trial, the same will not be considered on appeal; besides, the evidence did not raise the issue submitted in the requested charge. 7. —Same—Misconduct of Jury—Presumption. Where the question of the misconduct of the jury was examined into by the trial court and decided adversely to defendant, and there appeared in the record on appeal no evidence, the presumption is that the trial court correctly ruled thereon. [Rehearing denied February 26, 1913.—Reporter.]
69 Tex. Crim. 329De Friend v. State (1913)
The opinion states the case.
69 Tex. Crim. 331Carpenter v. State (1913)
1. —Simple Assault—Verdict—Degree. Where, upon trial of aggravated assault, the court’s charge limited the jury to the consideration of a simple assault only, and the verdict assessed a fine of five dollars, there was no uncertainty as to the degree of which the jury found defendant guilty, and there was no error because the verdict did not specify of what degree they convicted defendant. 2. —Same—Charge of Court—Misdemeanor—Practice on Appeal. In the absence of bills of exception to the court’s action in refusing special charges in misdemeanor eases, where the conviction is justified by the information or the facts, this court cannot review the matter.
69 Tex. Crim. 332Hall v. State (1913)
The opinion states the case.
69 Tex. Crim. 334Waddle v. State (1913)
The opinion states the case.
69 Tex. Crim. 335Smith v. State (1913)
Theft—Insufficiency of the Evidence. Where, upon trial of theft, the evidence did not show that the alleged suit of clothes which was found in defendant ?s possession was identified as the property of the alleged owner, the conviction could not be sustained.
69 Tex. Crim. 337Stewart v. State (1913)
1. —Local Option—Bill of Exceptions. Where the bill of exceptions is not approved by the trial judge, the same cannot be considered on appeal. 2. —Same—Charge of Court—Other Transactions—Weight of Evidence—Singling Out Testimony—Intent. Where, upon trial of a violation of the local option law, there was evidence that intoxicating liquors were found on the premises controlled by defendant and claimed by him, and the court charged the jury that this testimony could only be used for the purpose of showing the intent of the defendant to commit the offense, the same was a charge on the weight of the evidence and reversible error in ascribing it to the purpose of proving intent of defendant. Following Rice v. State, 49 Texas Crim. Rep., 569, and other cases.
69 Tex. Crim. 340Powdrill v. State (1912)
1. —Murder—Evidence—Former Difficulty—Motive. Upon trial of murder, there was no error in permitting the State to introduce testimony as to a former difficulty between the defendant and deceased occurring several years before the homicide, as to what was said and done during that difficulty, without giving the details thereof, but showing that defendant made an assault with a knife upon deceased and that the difficulty grew out of the separation of his parents and ending by defendant telling deceased, his son, to leave his house; and this, although a partial reconciliation had occurred sometime before the killing. Davidson, Presiding Judge, dissenting. 2. —Same—Evidence—Threats—Motive—Reconciliation. Upon trial of murder, there was no error in admitting in evidence the threats of the defendant against the deceased made at different times, and this, although a partial reconciliation had occurred between defendant and deceased since these threats were made. Following Leech v. State, 63 Texas Crim. Rep., 339. 3. —Same—Evidence—Papers in Civil Suit—Motive. Where, upon trial of murder, it developed that the homicide grew out of divorce and injunction proceedings which the wife of the defendant had instituted against him, and in which her son, the deceased, supported her, there was no error in admitting in evidence so much of the proceedings in the civil suit which explained the transaction without introducing the details thereof. Davidson, Presiding Judge, dissenting. 4. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence showed that the homicide grew out of certain divorce and injunction proceedings instituted by the wife of the defendant against him, and in which deceased assisted her; that defendant had made different threats at different times on account of this against the deceased, threatening to kill him if he continued meddling with Ms affairs, and that he finally did kill him for this reason, and there was no evidence which tended to show sudden passion or adequate cause, there was no error in the court’s failure to charge on manuslaughter. Davidson, Presiding Judge, dissenting. Following Redman v. State, 52 Texas Crim. Rep., 591. 5. —Same—Charge of Court—Self-defense—Manslaughter. It is the well established law of this State that where the case presents either murder or perfect self-defense, there is no error in the court’s failure to charge on manuslaughter; besides, in the instant case, there was no evidence of self-defense. Following Treadway v. State, 65 Texas Crim. Rep., 208. 6. —Same—Former Decision—Practice on Appeal—Manslaughter. Where, upon a former appeal, this court did not pass upon the question of manslaughter, but the ease was reversed upon another ground, and the court merely called attention to the question of manslaughter, the instant case cannot be controlled by that opinion; besides, the court charged upon manslaughter in the instant case on -the only possible theory suggested by the evidence, and there was no error. 7. —Same—Charge of Court—Res Gestae Statements. Where, upon trial of murder, the res gestae statement of defendant that he had to kill deceased because he came at Mm with a knife was not an admission or confession by him, and was part of the res gestae of the transaction; and besides, the State introduced other evidence upon which to base a conviction of murder, all of which was submitted under ¿ proper charge of the court, there was no error in the court’s failure to instruct the jury that they could not convict defendant because of his res gestae statement, unless they found the same untrue beyond a reasonable doubt. Davidson, Presiding Judge, dissenting. Following Slade v. State, 29 Texas Crim. App., 381, and other cases. 8. —Same—Charge of Court—Murder—Cooling Time—Limiting Evidence. Where, upon trial of murder, the court, according to the facts, submitted the different degrees of murder and cooling time and properly limited the testimony with reference to a former difficulty, there was no error. 9. —Same—Charge of Court—Explanation. Where, upon trial of murder, the evidence raised circumstantially the question that defendant approached deceased for an explanation of certain troubles between them, the court properly submitted a charge thereon; besides, this was in favor of defendant, and he could n'ot complain. 10. —Same—Charge of Court—Requested Charge—Art. 743, C. C. P. Where, upon trial of murder, the charge of the court properly embraced every matter raised by the evidence, and there were no errors of omission or commission in the charge which could result in injury to defendant, there was no error on this ground, under Article 743, Code Crim. Proc. [Rehearing denied February 5, 1913.—Reporter.]
69 Tex. Crim. 356Staha v. State (1912)
The opinion states the case.
69 Tex. Crim. 357Pugh v. State (1912)
The opinion states the case.
69 Tex. Crim. 363Bellew v. State (1912)
1. —Burglary—Charge of Court—Accomplice. Where; upon trial of burglary, the court’s charge on accomplice testimony followed approved precedent, there was no error. Following Tucker v. State, 58 Texas Crim. Rep., 271. 2. —Same—Sufficiency of the Evidence. Where, upon trial of burglary in the night-time, the evidence sustained the conviction, there was no reversible error. 3. —Same—Newly Discovered Evidence—Want of Diligence. Where the motion for new trial showed a want of diligence in not procuring the alleged newly discovered evidence on the trial of the case, there was no error. 4. —Same—Appointment of Counsel. Where the record on appeal did not show that the defendant requested or desired an attorney to be appointed by the court representing him on the trial, there was no error.
69 Tex. Crim. 366Brooks v. State (1912)
The opinion states the case.
69 Tex. Crim. 369Clements v. State (1913)
The opinion states .the case. For facts, see 61 Texas Crim. Rep., 161.
69 Tex. Crim. 372Ragland v. State (1913)
Burglary—Continuance—Counsel—Postponement. Where, upon trial of burglary, it appeared from the record on appeal that the defendant exercised no diligence in procuring the absent testimony or in employing counsel, and said testimony was probably not true, there was no error in overruling the motion for continuance and postponement.
69 Tex. Crim. 374Nesbitt v. State (1913)
The opinion states the case.
69 Tex. Crim. 376Simpson v. State (1913)
The opinion states the case.
69 Tex. Crim. 379Stephens v. State (1913)
The opinion states the case.
69 Tex. Crim. 384Stewart v. State (1913)
Counsel for appellant took the ground that the failure of the court to give a requested charge is sufficient to bring said refused charge under review without pointing out specifically the error why it should have been given, as the charge itself specifically and pertinently presents the matter of defense raised in the evidence, reviewing Ryan v. State, 64 Texas Crim. Rep., 628, and cases cited in opinion.
69 Tex. Crim. 393Chafino v. State (1913)
1. —Assault to Bob—Sufficiency of the Evidence—Alibi. Where, upon trial of assault with intent to rob, the evidence was sufficient to support the conviction, although defendant's alibi was strongly supported by evidence for the defense, there was no error. 2. —Same—Evidence—Custom. Where, upon trial of assault with intent to rob, the prosecuting witness stated that the reason the defendant did not get his money was that the witness had. it in his shoe, there was no error in permitting him to testify that this was his custom. 3. —Same—Argument of Counsel—Bill of Exceptions. Where the bill of exceptions did not point out the error in the argument of State’s counsel, and no written charge was requested, there was no error. Following Clayton v. State, 67 Texas Rep., 311.
69 Tex. Crim. 394Caples v. State (1913)
The opinion states the case.
69 Tex. Crim. 399Serop v. State (1913)
1.—Robbery—Statement of Facts—Statutes Construed. Where the statement of facts was signed by the county attorney and approved by the trial judge who stated that the statement of facts was correct, that he approved the same and ordered it filed as a part of the record in the cause, and the same was filed within time, the same was a substantial compliance with Article 824, Code Criminal Procedure, when taken in connection with the Revised Civil Statutes on this subject, although the same was not signed by appellant’s counsel. Following Kelso v. Townsend, 13 Texas, 140. 2. —Same—Bills of Exception. Where the bills of exception were not presented and approved and filed within the time allowed by law, the same cannot be considered on appeal, and only objections to the charge complained of in the motion for new trial can be reviewed. 3. —Same—Charge of Court—Circumstantial Evidence. Where, upon trial of robbery, the evidence was not entirely circumstantial, but positive in its character, there was no error in the court’s failure to charge thereon. 4. —Same—Evidence—Conduct of Defendant—Charge of Court. The acts and conduct of defendant when he was arrested were admissible in evidence, and there was no error in the court’s failure to limit the same. 5. —Same—Charge of Court—Other Transactions. Upon trial of robbery, there was no error in admitting testimony that another person was robbed at the same time and place as the one alleged in the indictment, and no charge in relation thereto was called for. 6. —Same—Charge of Court—Alibi—Imputing Crime to Another. Where, upon trial of robbery, the defense was an alibi, and imputing the crime to another, and the court’s charge properly submitted these issues to the jury, there was no error. 7. —Same—Misconduct of Jury—Affidavit. Where the ground of the motion for new trial alleged misconduct of the jury, but no supporting affidavits were attached, the same could not be considered on appeal. 8. —Same—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence supported the conviction, there was no error.
69 Tex. Crim. 403Peters v. State (1913)
1. —Attempted Burglary—Sufficiency of the Evidence. Where, upon a trial of an attempt to commit burglary, the evidence showed that the steps taken by defendant had gone beyond a mere preparation, and the only step remaining would have been to have committed the completed offense, the conviction was sustained. 2. —Same—Name of Defendant. Where defendant was indicted under the name‘of A. L. Fierce and on trial suggested his name was A. L. Peters, and the same was corrected in accordance with his suggestion, there was no error. 3. —Same—Name of Party Injured. Where the name of the party injured was alleged to be A. Dodson, Jr., and the proof showed his name to be A. Dodson, there was no variance. 4. —Same—Charge of Court—Entry. Where the court gave the proper charge on entry of the house, there was no error in refusing special charges which were not based on the evidence.
69 Tex. Crim. 405Cooper v. State (1913)
The opinion states the case.
69 Tex. Crim. 410Decker v. State (1913)
The opinion states the case.
69 Tex. Crim. 413Webb v. State (1913)
Tried below before the Hon. R. W. Simpson. Appeal from a conviction of theft of cattle; penalty,' two years imprisonment in the penitentiary.
69 Tex. Crim. 417Hart v. State (1913)
1. —Disturbing Peace—Indictment—Words and Phrases. Where the word “street” was spelled “stree,” in the indictment, the indictment was, nevertheless, sufficient when construed as a whole, and there was no error in overruling a motion in arrest of judgment. Following Bailey v. State, 63 Texas Crim. Rep., 586, and other cases. 2. —Same—Evidence—Res Gestae—Bill of Exceptions. All the facts and circumstances immediately occurring at the time and place of the main fact are res gestae, and there was no error, upon trial of disturbing the peace, to show that defendant motioned with his hand in connection with the language he used; besides, the bill of exceptions was defective in not showing why the testimony was inadmissible. 3.—Same—Sufficiency of the Evidence. Where, upon trial of disturbing the peace, the evidence showed that the defendant willfully used loud and vociferous language in a manner calculated to disturb the inhabitants of a public place, the conviction was sustained.
69 Tex. Crim. 420Davis v. State (1913)
1. —Murder—Charge of Court—Sufficiency of the Evidence. Where, upon trial of murder, the evidence was sufficient to sustain the conviction, and the charge of the court presented defendant’s theory of defense as made by the testimony as favorable as it was possible to do, there was no error. 2. —Same—Evidence—Other Transactions—Ees Gestae. Where, upon trial of murder, the evidence showed that not more than twenty yards were traveled by defendant from the time the wound was inflicted until he returned to the deceased and kicked her and used the language attributed to him, the same was res gestae and part of the transaction and admissible in evidence. 3. —Same—Evidence—Motive—Animus. Where, upon trial of murder, it was shown that the defendant immediately after his wife was stabbed, returned to her body and kicked it, using abusive language, the same was admissible to show the animus, motive, and ill-will of defendant toward deceased, and there was no error in the court’s failure to limit said testimony. Following Davis v. State, 65 Tex. Crim. Rep., 271, 143 S. W. Rep., 1161. 4. —Same—Evidence—Expert Witness—Opinion. Where defendant introduced an expert witness and was permitted to show by. him all the facts to which he could legitimately testify, there was no error in excluding the opinion of said witness as to whether or not under the circumstances in the case, the wound was intentionally inflicted or accidentally done; this was not a subject of expert testimony. 5. —Same—Practice in District Court. If defendant expected to illicit any expert testimony, he should have so informed the court at the time, and it was too late to do so after the verdict had been rendered. 6. —Same—Argument of Counsel—Presumption. Where the argument of State’s counsel was not shown in the bill of exceptions to have been harmful to such an extent as to have been reversible error, there was no error, although the remark of counsel that the jury could presume something which had not foundation in the evidence was improper. 7. —Same—Sufficiency of the Evidence. Where, upon trial for murder, the defendant contended that the wound upon his wife was either self-inflicted or accidental, but the evidence indicated that defendant inflicted the wound and that it would be almost a miracle to have been self-inflicted or accidental, the conviction was sustained.
69 Tex. Crim. 426Lester v. State (1913)
The opinion states the case.
69 Tex. Crim. 430Polk v. State (1913)
1. —Policy Game—Indictment—Gaming Statutes. Under Article 558, Revised Penal Code, a policy game is included within the gaining statute and is prohibited from being kept or exhibited directly or indirectly for the purpose of gaming, and an indictment in the terms of said statutes, alleging that the policy game was kept and exhibited for the purpose of gaming is sufficient. Following Morris v. State, 57 Texas Crim. Rep., 163, and other cases. 2. —Same—Statement of Facts. In the absence of a statement of facts, the sufficiency of the evidence cannot be reviewed.
69 Tex. Crim. 432Wilson v. State (1913)
The opinion states the case.
69 Tex. Crim. 437Stephens v. State (1913)
1. —Theft of Horse—Continuance—Want of Diligence. Where defendant’s application for continuance showed a want of diligence for applying for proper process, and that it was hardly possible that the alleged witness could have been procured by further postponement of the case, there was no error in overruling the motion. 2. —Same—Evidence—Recent Possession—Explanation—Charge of Court. Where, upon trial of theft of a horse, the defendant claimed that he had traded therefor, and the court charged the jury that if they believed that he traded for said horse or had a reasonable doubt to acquit him, there was no error in refusing a special charge on the same question couched in a more formal manner. Following Hinsley v. State, 60 Texas Crim. Rep., 565. 3. —Same—Indictment—Grammatical Errors—Words and Phrases. Grammatical errors present no ground for quashing an indictment as long as it can be rendered certain, and the omission of the word, “of,” in the latter part of the indictment presented no error. 4. —Same—Sufficiency of the Evidence—Reasonable Explanation. Where defendant gave more than one explanation of his possession of the alleged stolen horse, the conflict in such statements could be considered by the jury and the conviction will not be reversed on appeal. Following Cabral v. State, 57 Texas Crim. Rep., 304, and other cases. [Rehearing denied March 26, 1913.—Reporter,]
69 Tex. Crim. 439Cameron v. State (1913)
1. —Murder—Jury and Jury Law—Juror’s Absence. Where, upon trial of murder, it was shown by the record on appeal that the juror for whom defendant moved to quash the venire was absent from the county and it was impossible to have him brought into court, there was no error in overruling the motion to quash and proceeding with the trial. Following Thuston v. State, 18 Texas Crim. App., 26, and other cases. 2. —Same—Evidence—Conspiracy—Declarations of Co-Conspirator. Where, upon trial of murder, the evidence showed that the brother of defendant and the latter were acting together at the time of the commission of the homicide, there was no error in admitting the declarations of said brother when asked about the trouble between defendant and deceased that it was not going to leak out from them, but that it might leak out after a while, and which was made a few days before the killing in the absence of defendant; the court properly limiting this testimony to a conspiracy; besides, the ill-will of defendant towards the deceased was amply shown by other testimony. 3. —Same—Evidence—Insulting Conduct to Female Relative—Manslaughter. Where, upon trial for murder, defendant’s contention, was that he had been informed by his wife that the deceased raped her and that he killed him on first meeting, there was no error in permitting the State to introduce testimony which rendered it impossible for deceased to have committed such rape at any time claimed by defendant, and that it was unlikely that she had communicated such fact to the defendant and that this contention of the defendant was probably not true; the court properly submitting the issue to the jury and limiting the testimony to the credibility of the witness. 4. —Same—Evidence—Cross-Examination. In the absence of a bill of exceptions, the court’s action in permitting certain questions to be asked the wife of the deceased on cross-examination cannot be reviewed. 5. —Same—Murder in the First Degree—Charge of Court. Where, upon trial of murder, the court’s charge on murder in the first degree was in accordance with approved precedent and not on the weight of the evidence, there was no error. Following Alexander v. State, 40 Texas Crim. Rep., 395. 6. —Same—Manslaughter—Charge of Court—Reasonable Doubt. Where, upon trial of murder, the court’s charge on manslaughter, when taken as a whole, was correct and applicable to the facts, there was no error, the court also"appIying the reasonable doubt between murder and manslaughter. [Rehearing denied, February 26, 1913.—Reporter.]
69 Tex. Crim. 447Jones v. State (1913)
The opinion states the case.
69 Tex. Crim. 457Bryant v. State (1913)
1. —Theft—Motion for New Trial. An objection that the court erred in paragraph one of the charge in defining the offense of theft, and in refusing to give defendant's special charge is too general to be considered on appeal; besides, when considered, there was no error. Following Sue v. State, 52 Texas Crim. Rep., 122, and other cases. 2. —Same—Misconduct of Jury—Motion for New Trial—Affidavit. When extrinsic matters are set up in a motion for new trial, they must be supported by affidavit. Following Barber v. State, 35 Texas Crim. Rep., 70. 3. —Same—Statement of Facts—Motion for New Trial. Where the statement of facts of the evidence on motion for new trial was not filed in term time, the same cannot be considered on appeal; besides, there was no error. Following Probest v. State, 60 Texas Crim. Rep., 608.
69 Tex. Crim. 459Spicer v. State (1913)
1. —Burglary—Continuance—Immaterial Testimony. Where defendant’s application for continuance stated no fact that he expected to prove by the absent witnesses which could or would have been a defense to the offense charged, there was no error in overruling the motion for continuance. 2. —Same—Copy of Indictment—Service—Waiver. While Article 546, Code Criminal Procedure, provides that defendant shall be entitled to two days after service of copy of indictment to prepare for trial, such right can be waived by the defendant, and where he did so, there was no error in forcing him to trial before that time; besides, it is too late to make this contention after verdict. Following Richardson v. State, 7 Texas Crim. App., 486. 3. —Same—Evidence—Declarations by Defendant. Where, upon trial of burglary, the State introduced in evidence the declarations of the defendant before a justice of the peace as a witness by which he admitted that he sold the alleged stolen property to the party in whose possession it was found, there was no error, it appearing that defendant, at that time, was not under arrest and that no complaint had been filed against him for the offense for which he was being tried.
69 Tex. Crim. 462Garrett v. State (1913)
The opinion states the case.
69 Tex. Crim. 464Creed v. State (1913)
1. —-Occupation—Intoxicating liquors—local Option—Change of Venue. In the absence of a bill of exceptions to the overruling of an application for change of venue, the same cannot be reviewed on appeal, under Article 634, Code Criminal Procedure. 2. —Same—Special Judge—Term of Court. Where the special judge had been elected, qualified and opened the District Court for the term, it remained open until the end of the term, unless sooner adjourned for the term by order of the judge presiding, and the temporary leaving of the judge did not.adjourn the term. 3. —Same—Continuance—Bills of Exception. In the absence of bills of exception to the overruling of an application for continuance and the admissibility of testimony,, the same cannot be reviewed on appeal. 4. —Same—Indictment—Date of Offense—Words and Phrases—Surplusage. Where the words objected to with reference to the date of the offense could be treated as mere surplusage, and did not render the indictment in anywise uncertain as to the date of the offense, the same was sufficient on motion to quasji. 5. —Same—Charge of Court—Occupation. Where the court’s definition of the word, "occupation,” was according to approved precedent, there was no error in refusing requested charges which were not applicable. Following Fitch v. State, 58 Texas Crim. Rep., 236, and other cases. 6. —Same—Charge of Court—Law in Force. Where the orders' of the Commissioner’s Court were introduced in evidence, the court could have charged that local option was in force, although he did not assume this in his charge, and there was no error. Following Byrd v. State, 53 Texas Crim. Rep., 507, and other eases. 7. —Same—Charge of Court—Agent—Principals. Where the evidence conclusively showed that defendant controlled the place where all the sales were made and that he was the manager of said place and knew that his employer was selling intoxicating liquors, and besides, showed that defendant made numerous sales himself, etc., there was no error in refusing defendant’s special charge that he could not be convicted as agent of said employer, as defendant was a principal. [Rehearing denied April 2, 1913.—Reporter.]
69 Tex. Crim. 468Ellis v. State (1913)
1. —Selling Intoxicating Liquor—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. —Jury and Jury Law—Practice—Bill of Exceptions. Neither side should be permitted to test jurors by showing that they would or would not give credence to the testimony of any witness for either Bide; besides, the bill of exceptions was defective in not pointing' out the error. 3. —Same—Challenge—Opinion of Juror. Where, upon appeal, the bill of exceptions showed that defendant’s claim that the juror had a formed opinion was not supported, but was shown that the juror was qualified, there was no error; besides, the juror was peremptorily challenged and did not sit on the case. Following Dyke v. State, 61 Texas Crim. Rep., 441, and other cases. 4. —Same—Jury and Jury Law—Talesmen. While the court should have granted the motion to place the names of the talesmen on separate slips of paper, etc., as the statute directs, yet, where the record showed on appeal that no injury whatever occurred by this action of the court and that no objectionable juror was forced upon the defendant, there was no error. Following Mays v. State, 50 Texas Crim. Rep., 165, and other cases. 5. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not show that any answer was given to the question which was objected to as leading, there was nothing to review. Following Carter v. State, 59 Texas Crim. Rep., 73. 6. —Same—Evidence—Impeaching Witness. Upon trial of a violation of the local option law, there was no error in not permitting the defendant to ask a State’s witness what he had sworn to in another case with a view of impeaching him, the matter having no connection with the case on trial. 7. —Same—Evidence—Impeaching Witness—Moral Turpitude. It is always permissible to impeach a witness by showing that he has been indicted or is then under indictment for a felony, and the court correctly refused a special charge to the contrary. 8. —Same—Agency—Charge of Court—Alibi. Where the evidence showed a specific and direct sale of intoxicating liquors by defendant to the witness, the court did not err in not submitting the question of agency to the jury, and in not charging that the question of alibi was thereby not affected. 9. —Same—Charge of Court—Limiting Testimony. Where testimony could not be legitimately or rationally used for any other purpose than that of impeachment, it is not error to refuse to limit same for that purpose. Following Sue v. State, 52 Texas Crim. Rep., 122, and other eases. 10. —Same—Charge of Court—Alibi—Words and Phrases. Where, upon trial of a violation of the local option law, the evidence raised the issue of alibi and the court gave a correct charge thereon, the contention that the use of the words “that if the offense was committed as alleged’’ was on the weight of the evidence was untenable. 11. —Same—Argument of Counsel. In the absence of a bill of exception pointing out the error in the argument of State’s counsel and a written charge withdrawing same, there was no error.
69 Tex. Crim. 473Ex Parte Edwin Cobb (1913)
1. —Felony—Bail Bond—Statutes Construed—Surety. Under Articles 322 and 330, Revised Code Criminal Procedure, a surety on a bail bond or recognizance on appeal has a right to surrender his principal and be released from liability on the undertaking; and the provisions of the code in regard to release of sureties on bail apply as well to bonds given before as after conviction. Overruling Talley v. State, 44 Texas Crim. Rep., 162. 2. —Same—Case Stated—Surrender of Principal by Surety. Where appellant was convicted of a felony, gave notice of appeal and entered into bail bond pending his appeal, and thereafter his surety surrendered him to the sheriff and he subsequently escaped, but was recaptured, his contention that his surety had no right to surrender him and that the original bail bond is still in effect is untenable.
69 Tex. Crim. 474Bailey v. State (1913)
1. —Theft of Horse—Accomplice—Sufficiency of the Evidence—Charge of Court. Where, upon trial of theft of a horse as an accomplice, the court properly-charged on accomplice testimony and the evidence was sufficient to sustain the conviction, there was no error. 2. —Same—Charge of Court—Accomplice Testimony. Where, upon trial of an accomplice to the theft of a horse, the evidence did not raise the issue of accomplice with reference to the purchaser of said horse, there was no error in the court’s failure to charge thereon. 3. —Same—Other Offenses—Limiting Testimony—Intent—System. Where, upon trial of horse theft as an accomplice, the State was permitted to introduce testimony with reference to another theft of a horse prior to the instant ease, without objection, and the testimony with reference thereto clearly showed the motive, system, and intent of defendant in committing the theft for which he was on trial, there was no error in the court’s failure to specifically limit said testimony to this purpose, no charge being requested by defendant, and the other theft being clearly proven. 4. —Same—Buie Stated—Charge of Court—Limiting Testimony. It is only when proof of another offense is such that the jury might use that testimony improperly to convict for that collateral offense instead of the offense charged and on trial, or make- some other unwarranted use of that testimony to the prejudice of the defendant that it is necessary to limit the purpose for. which such evidence is admitted. Following Thornley v. State, 36 Texas Crim. Rep., 118, and other cases. Distinguishing Saldiver v. State, 55 Texas Crim. Rep., 177; Reno v. State, 25 Texas Crim. App., 102. 5. —Same—Case Stated—Other Offenses—Charge of Court. Where defendant was on trial and convicted alone for the offense charged in the indictment, and could not have been convicted for any other offense, and the evidence concerning the other offense was admitted alone for the purpose of showing motive, system and intent for the theft upon which he was on trial as an accomplice, there was no error in the court’s failure to limit the testimony to the purpose for which it was introduced. 6. —Same—Accomplice in Collateral Offense—Charge of Court. Where, upon trial of theft of a horse by an accomplice, the State introduced the accomplice in another offense prior to the theft for which defendant was being tried, and which said witness was neither directly nor indirectly connected with the theft of the instant ease, there was no error in the court’s failure to charge either that said witness was an accomplice in the instant case, or that he was an accomplice in the other theft which was purely collateral matter. 7. —Same—Charge of Court—Article 743, Code Criminal Procedure. Where, upon trial of theft of a horse as an accomplice, the testimony of another offense was introduced by an accomplice thereto without objection, and the appellant for the first time raised the question of the court’s failure to charge on said accomplice testimony in his amended motion, and there being no injury shown to the rights of defendant, there was no error under Article 743, Code Criminal Procedure.
69 Tex. Crim. 485Green v. State (1913)
1. —Murder—Evidence—Absent Witness. Where the State showed the absence of a witness on a former trial and inferentially left the impression that the testimony of the said absent witness was favorable to the State, the defendant should have been permitted to show that such testimony was favorable to defendant, and a refusal to permit him to do so was reversible error. Following Sweeney v. State, 65 Texas Xrim. Rep., 593. 2. —Same—Absent Witness—Reproduction of Testimony. The mere fact that the witness was absent would not authorize his former testimony to be reproduced, unless it was shown that he was dead, beyond the jurisdiction of the court, or intentionally kept away. Following Robertson v. State, 63 Texas Crim. Rep., 216. 3. —Same—Charge of Court—Manslaughter. Where defendant had been acquitted at a former trial of both degrees of murder, the court correctly charged upon manslaughter. 4. —Same—Evidence—Bias of Witness. It is always permissible to prove the bias and prejudice of any witness by himself, and if he denies by another. 5. —Same—Aggravated Assault—Charge of Court—Intent—Deadly Weapon. Where, upon trial of manslaughter after an acquittal of murder, the evidence showed that there was no proof that the instrument used by the defendant was a deadly weapon, and he testified that he did not intend to kill and there was also testimony that the deceased began the difficulty by an assault upon defendant, the court should have submitted aggravated assault as requested.
69 Tex. Crim. 488Skinner v. State (1913)
1. —Theft—Indictment—Different Offenses. Where defendant was indicted for a misdemeanor theft in one count and in another for pulling down and injuring the fence of another, which grew out of the same transaction, there was no error in overruling a motion to quash on the ground that the offenses charged did not arise out of the same transaction. 2. —Same—rSufficiency of the Evidence. Where a conviction of theft of wire was supported by the evidence, there was no error. 3. —Same—Name of Injured Party—Indictment. Where the allegation of the party injured was such that it could not mislead anyone, and that the use of another name which had no connection with the transaction was clearly a clerical error and could not vitiate the indictment, there was no error in overruling a motion to quash. Following Bailey v. State, 63 Texas Crim. Rep., 584. 4. —Same—Verdict—Words and Phrases. Where the verdict used the word "jurors” instead of the word "jury,” the same was, nevertheless, sufficient under the statute. 5. —Same—Assignment of Errors—Practice on Appeal. This court cannot consider questions raised by Assignment of errors like in the civil courts, but is restricted to questions raised by bills of exception or motion for new trial.
69 Tex. Crim. 490Pech v. State (1913)
1. —Theft of Mules—Practice on Appeal—Sufficiency of the Evidence. In the absence of bills of exception to the admission of testimony and objections to the refusal of requested charges, these matters cannot be reviewed, and the evidence supporting the conviction, there is no error. 2. —Same—Charge of Court—Bailment—Venue—Words and Phrases. Upon trial of theft of mules as bailee, where the court properly charged that if the defendant obtained possession then and there and fraudulently converted same, etc., to find him guilty, there was no reversible error on the ground that the words, ‘‘ then and there, ’ ' did not sufficiently instruct the jury on the venue of the case. 3. —Same—Charge of Court—Bailment. Where defendant was charged with theft of mules under bailment and contended that he had not sold the mules, but left them in charge of another for the owner, and this issue was fairly submitted to the jury who found adversely to defendant, there was no error. 4.—Same—Newly Discovered Evidence. Where, upon trial of theft of mules under bailment, the conviction was amply supported by defendant's confession and other testimony, there was no error in overruling a motion for new trial on the ground of newly discovered evidence, where the record showed a want of diligence to obtain this testimony and that besides, it was not probably true.
69 Tex. Crim. 492Price v. State (1913)
Tried before the Hon. A. J. Smith. Appeal from a conviction of aggravated assault; penalty, a fine of $100 and thirty days confinement in the county jail.
69 Tex. Crim. 492Chapa v. State (1913)
The opinion states the case.
69 Tex. Crim. 493Turner v. State (1913)
Burglary—Declarations of Defendant—Charge of Court. Where, upon trial of burglary, defendant’s statement as to his possession of the alleged stolen property was properly submitted to the jury, there was no reversible error.
69 Tex. Crim. 494Powers v. State (1913)
1. —Theft of Cattle—Charge of Court—Bill of Sale. Upon trial of theft of cattle, there was no error in the court’s refusal to charge the jury that if they believed that if the alleged stolen animal was one of the animals described in the bill of sale from defendant to the party injured, to acquit defendant; the evidence showing that one of the alleged animals was positively identified as one of the alleged stolen animals. 2. —Same—Jury and Jury Law—Opinion of Juror. Where counsel for defendant had knowledge of the facts with reference to the expressed opinion of the juror at the time the jury was selected, the contention that the juror had formed and expressed an opinion prior to the trial came too late. 3. —Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify. A mere incidental reference in the jury room to the failure of defendant to testify is not a cause for reversal.
69 Tex. Crim. 496Robinson v. State (1913)
The opinion states the case.
69 Tex. Crim. 497Jones v. State (1913)
1.—Theft-—Impeaching Testimony—Charge of Court. • Where the testimony of the State was purely impeaching in its character and not admissible as original testimony, or as testimony upon which the conviction could be predicated, it should have been limited in the court’s charge, and a failure to do so was reversible error. Following Henderson v. State, 58 Texas Crim. Rep., 581, and other cases. 2. —Same—Evidence—Impeaching Own Witness—Charge of Court. Where a State’s witness had failed to identify the defendant except in a very indefinite way, and the State laid a predicate to impeach him and introduced another witness who testified that the first witness had identified the defendant, the court’s failure to limit said testimony to purposes of impeachment was reversible error. Following Dusek v. State, 48 Texas Crim. Rep., 519, and other cases. 3. —Same—Charge of Court—Original Taking—Receiving Stolen Property. Where, upon trial of theft, there was evidence that the defendant purchased the alleged stolen property, he could not be guilty as principal, although he may have actually known that the property was stolen, and the court’s failure to charge upon the issue of purchase was reversible error.
69 Tex. Crim. 502Manley v. State (1913)
1. —Murder—Continuance—Want of Diligence. Where defendant's fourth application for a continuance showed that some of the alleged absent witnesses appeared and testified; that the diligence as to others was insufficient, and those, where due diligence had been used, could only testify to cumulative facts, there was no error in overruling same. 2. —Same—Jurisdiction—National Guard. The Act under which the State Militia, termed National Guard, is organized provides that the State courts shall have jurisdiction of offenses committed by militia men; besides, this is the law exclusive of this statute, in times of peace, and where the District Court first obtained jurisdiction, the same attached throughout. 3. —Same—Evidence—Dying Declarations—Predicate, Where the proper predicate was laid and the dying declarations based thereon were admitted, there was no error; and even that part of deceased's declarations which the court, on a former appeal, held to be inadmissible, and which was not in fact admitted, was admissible. Following Pierson v. State, 18 Texas Crim. App., 524, and other cases. 4. —Same—Evidence—National Guard. Where it was admitted by the State that the call for the militia was regular and made by proper authority, and that defendant was legally at the place where the difficulty occurred, there was no error in excluding other testimony of this character. 5. —Same—Requested Charges—Manslaughter—Adequate Cause. Where all the requested charges on manslaughter were covered by the court’s main charge, except two, which were not the law of the case on adequate cause, there was no error; besides, the court properly submitted the issue of manslaughter. 6. —Same—Self-Defense—Accidental Killing—Negligent Homicide. Where, upon trial of murder, the court properly submitted self-defense and accidental homicide, as raised by the evidence, and the issue of negligent homicide was not raised by the evidence, there was no error in the court’s failure to submit the latter. 7. —Same—Charge as a Whole—Sufficiency of the Evidence. Where, upon trial of murder, the defendant was convicted of murder in the second degree which was sustained by the evidence under a proper charge of the court, when considered as a whole, there was no error.
69 Tex. Crim. 506Salmon v. State (1913)
The opinion states the case.
69 Tex. Crim. 513Condron v. State (1913)
1. —Murder—Charge of Court—Manslaughter. Where, upon trial of murder, the defendant was convicted of manslaughter, receiving the lowest penalty, the charge on murder need not be considered and that on manslaughter, although slightly inaccurate, was not cause for reversal. 2. —Same—Argument of Counsel. Where the criticisms of the argument of counsel in the light of the qualifications by the court were untenable, there was no error. 3. —Same—Charge of Court—Weight of Evidence. Where the court’s charge was but a statement of a proposition of law if the jury found a given state of facts, the same was not on the weight of evidence. 4. —Same—Charge of Court—Carrying Pistol—Officer—Right to Arrest. Where, upon trial of murder, the evidence showed that shortly before the homicide the defendant had a difficulty with a third party during which he reached for his pistol and fired it, and a warrant was placed in the hands of the deceased who was sheriff and his deputy for the arrest of defendant-for carrying a pistol, and who approached him with said warrant to arrest him when the difficulty arose in which deceased was killed by defendant’s companion, there was no error in the court’s charge that if defendant was unlawfully carrying a pistol that he was subject to arrest by deceased or any of his deputies, and such charge did not assume the fact that the defendant was carrying a pistol and was proper under the law and facts of the case. Article 479, Penal Code. Following Jacobs v. State, 28 Texas Crim. App., 79, and other cases. Davidson, Presiding Judge, dissenting. 5. —-Same—Charge of Court—Reasonable Doubt—Charge as a Whole. Where the court charged that the burden rested on the State to establish the guilt of the defendant beyond a reasonable doubt, etc., or else to acquit him, but if the evidence satisfied the jury beyond a reasonable doubt of the guilt of the defendant, to convict him of that degree of the offense of which he was guilty, this could not mislead the jury that the court believed there was no reasonable doubt as to defendant’s guilt, when taken in connection with other portions of the charge that defendant was not only entitled to the benefit of a reasonable doubt on the whole case, but as between the degrees of the homicide committed, and there was no error Distinguishing Comegys v. State, 62 Texas Crim. Rep., 231. Davidson, Presiding Judge, dissenting. 6. —Same—Charge of Court—Manslaughter—Presumption of Innocence— Reasonable Doubt. The law requires the jury to find the facts affirmatively before they are authorized to convict of any degree of offense, and the doctrine of reasonable doubt need not be appended to each paragraph of the charge of the court if the same as a whole properly instructs the jury on that issue, and where the court not only instructed upon the reasonable doubt on the whole case, but on the different degrees of homicide, the defendant is not denied the presumption of innocence and the benefit of the reasonable doubt. 7. —Same—Charge of Court—Manslaughter—Conflict in Charge—Self-defense. Where, upon trial of murder, the court submitted a charge on manslaughter as well as one on self-defense, and the evidence showed that the homicide greiy out of an attempted arrest by the deceased and his deputy who were sheriffs, and the court correctly drew the line of distinction as to when the acts of deceased in attempting the arrest of defendant would reduce the offense to manslaughter and when such acts would justify the killing in self-defense, there was no conflict in the said two paragraphs of the court’s charge as contended by the defendant. Davidson, Presiding Judge, dissenting. 8. —Same—Charge of Court—Presumption of Innocence—Reasonable Doubt. Where, upon- trial of murder, the defendant criticised the court’s charge on manslaughter, claiming in one instance that it took away from the defendant the benefit of a reasonable doubt, and in another that it authorized the jury to convict on a preponderance of the evidence; but when the charge, read as a whole, did neither of these things, there was no reversible error. 9. —Same—Charge of Court—Force Used—Manslaughter—Self-defense. Where the defendant claimed that the court’s charge on manslaughter in one instance instructed the jury that if the officers who attempted his arrest, one of whom was deceased, were using greater force than was necessary under the circumstances and this produced adequate cause to render defendant’s mind incapable of cool reflection to find him guilty of manslaughter, and in another part of the charge, instructed them that if such arrest was made in a wanton manner and the use of greater force than was necessary, the defendant would be justifiable in killing deceased, but when the charge was considered as a whole, no such conflict occurred in the court's charge, there was no reversible error. Davidson, Presiding Judge, dissenting. 10.—Same—Charge of Court—Self-defense. Where, upon trial of murder, the court's charge on self-defense presented every phase as made by the evidence and when read as a whole, is not subject to any criticisms, there was no reversible error. [Rehearing denied April 2, 1913.—Reporter.]
69 Tex. Crim. 528Taff v. State (1913)
1. —Assault to Rape—Sufficiency of the Evidence—Alibi—Charge of Court— Specific Intent—Woman of Loose Virtue. Where, upon trial of assault to rape, the evidence was sufficient to sustain the conviction, and the court fully instructed the jury on the issue of alibi raised by the evidence and submitted defendant’s special- instructions on specific intent to rape, there was no error in refusing other special charges on the same subject, and the contention that prosecutrix was a woman of loose virtue was no defense, and there was no error. 2. —Same—Charge of Court—Attempt to Rape. Where, upon trial of assault to rape, the evidence did not raise the issue of an attempt to rape, there was no error in refusing a special charge thereon. 3. —Same—Evidence—Other Testimony Showing Same Fact. Where the evidence was admissible under the qualifications of the bills of exception; there was no error; besides, the same facts were shown on cross-examination and by other witnesses. 4. —Same—Former Conviction—Lower Degree of Offense. Where, upon appeal from a conviction of assault to rape, it appeared from the record that the defendant pleaded guilty to aggravated assault on an information filed in the County Court for the same transaction under a fraudulent effort to oust the jurisdiction of the District Court of the case there pending for assault with intent to rape, the court properly struck out said plea. This was specially authorized under Article 63, Code Criminal Procedure, as amended. 5.—Same—Case Stated—Jurisdiction—County Attorney. Where defendant was indicted in the District Court for assault with intent to rape and convicted and appealed therefrom to this court, and pending such appeal, by agreement with the county attorney, pleaded guilty, on an agreed statement of facts, to an aggravated assault upon an information filed in the County Court, the jurisdiction of the District Court was thereby not ousted and the county attorney had no authority to make such agreement under Article 63, Code Criminal Procedure, as amended. Following Johnson v. State, MS S. W. Rep., 300. [Rehearing denied April 2, 1913.—Reporter.]
69 Tex. Crim. 534Fuller v. State (1913)
The opinion states the case.
69 Tex. Crim. 538McKelvey v. State (1913)
The opinion states the case.
69 Tex. Crim. 545McDowell v. State (1913)
The opinion states the case. The indictment, omitting formal parts, charged that the defendant did then and there unlawfully in the State of Arkansas, procure one Gertrude McDaniel, a female person, to come from the State of Arkansas into the State of Texas and County of Hopkins in said State of Texas, for the purpose of prostitution on the part of her, the said Gertrude McDaniel, against the peace and dignity of the State.
69 Tex. Crim. 550Kelly v. State (1913)
The opinion states the case.
69 Tex. Crim. 550Green v. State (1913)
Local Option—Law in Force. Where the record did not show that local option was in effect in the territory where the alleged violation of the law occurred, the same is reversible error.
69 Tex. Crim. 553Laird v. State (1913)
The opinion states the case.
69 Tex. Crim. 557Gusemano v. State (1913)
On one of the nights early in May a railway ear in the possession of one Bush was broken open and considerable merchandise taken therefrom. The officers were notified of this burglary and by daylight the next morning they had traced a wagon from the place where the car was burglarized to the store of appellant. The goods stolen consisted largely of shoes wrapped with a peculiar kind of paper.
69 Tex. Crim. 561Peters v. State (1913)
Tried below before the Hon. Jas. R. Harper. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life.
69 Tex. Crim. 562Hysaw v. State (1913)
1. —Murder—Manslaughter—Sufficiency of the Evidence. Where, upon trial of murder, defendant was convicted of manslaughter, which was sustained hy the evidence, there was no error on that ground. 2. —Same—Charge of Court—Aggravated Assault—Weapon. Where, upon trial of murder, there was no evidence that the knife used was a deadly weapon and the idea that defendant intended to kill deceased was excluded by the evidence, the court should have submitted a charge on aggravated assault, 3. —Same—Evidence—Character of Deceased—Specific Acts. When self-defense is an issue, and it is necessary to show the state of mind of defendant at the time of the commission of the homicide, specific acts of violence of the deceased which are then known to defendant and which show or tend to show that deceased was a violent and dangerous man may be ntroduced in evidence on the issue of self-defense; however, where such specific acts are not known to defendant prior to the homicide, general reputation alone is admissible. 4. —S ame—Rule Stated—Cross-Examination. Where specific acts of violence are introduced in evidence, the State should be permitted, on cross-examination, to go into the particulars of the specific act to rebut defendant’s theory that deceased was a dangerous person. 5. —Same—Evidence—Specific Acts. Where, upon trial of murder, proof that deceased habitually carried a pistol was admissible, but testimony that a witness saw deceased carry a pistol at one time was not admissible. 6. —Same—Evidence—Conduct of Deceased. Where defendant did not attempt to show that the deceased had the general reputation of being a violent and dangerous man, it was improper for the court to prove or disprove this fact. 7. —Same—Conduct of District Attorney. Where the conduct of the witness justified the conduct of the district attorney in cross-examining. him, there was no error and the latter had the right to discuss this testimony. 8. —Same—Attorney—Contempt. Where the cause is reversed and remanded on other grounds, it is not necessary to consider the complaint to the action of the court in imposing a fine on defendant’s attorney. 9. —Same—Charge of Court—Reasonable Doubt. It is always sufficient for the court to charge the reasonable doubt in substantial conformity to the language of the statute, and there was, therefore, no error in refusing a requested charge which did not conform thereto. [Rehearing denied April 23, 1913.—Reporter.]
69 Tex. Crim. 567Wilson v. State (1911)
1. —Occupation—Intoxicating Liquors—Local Option—Sufficiency of the Evidence—Subterfuge. Where, upon trial for unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the evidence clearly justified the jury in believing that the so-called lunches attended with the ordering of beer, etc., were a mere subterfuge, and that more than two sales of intoxicating liquors and the pursuing by defendant of such occupation was amply proved, the conviction was sustained. 2. —Same—Requested Charges—General Objections. Where the error assigned on the refusal of submitting requested charges was of a general character without pointing out any error, the same could not be considered on appeal; besides, there was no error in refusing them. Following Berg v. State, 64 Texas Crim. Rep., 612, and other cases. 3. —Same—Constitutional Law—Indictment. The Act of 1909, Penal Code, Article 589, making it unlawful to engage in the occupation of selling intoxicating liquors in local option territory is constitutional, and there was no error in overruling defendant’s motion to quash the indictment on this ground. Following Fitch v. State, 58 Texas Crim. Rep., 366, and other cases. 4. —Same—Felony—Misdemeanor—Former Conviction. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the record showed on appeal that prohibition was in force prior to the time the felony Act went in force, and that defendant had been prosecuted and convicted in the County Court under said law for violating the local option law by making single sales, he could not plead these convictions as former jeopardy, as the offense for which he had been convicted was separate and distinct from the offense for which he was being- tried. Following Robison v. State, 66 Texas Crim. Rep., 392. 5. —Same—Agreement of Immunity—District Judge—Approval. An agreement between defendant and the prosecuting officers promising immunity from further prosecution is not valid without the approval of the district judge, where such agreement is offered in bar to the prosecutions then pending. Following Johnson v. State, 66 Texas Crim. Rep., 586, and other cases. 6. —Same—Evidence—Former Conviction. Where defendant’s plea of former conviction was wholly insufficient ana was no bar to the offense for which he was being tried, there was no error in not permitting the defendant to offer testimony as to the conduct of the prosecuting officer in said former trial, or to show that the transaction was the same. 7. —Same—Other Sales—Occupation. Upon trial of unlawfully engaging in the occupation of selling intoxicating liquors in local option territory, there was no error in admitting evidence of other sales than those specifically alleged in the indictment. 8. —Same—Evidence—Books of Express Company. In a prosecution for unlawfully engaging in the business of selling intoxicating liquors in local option territory, the books of the express company having been properly proven up and the entries shown to have been correctly made and defendant’s receipt therein show, were properly admissible in evidence. Following Stephens v. State, 63 Texas Crim. Rep., 382. 9. —Same—Leading Questions—Unwilling Witness. It is always permissible to permit leading questions to be asked to an unwilling witness, etc. Following Carter v. State, 59 Texas Crim. Rep., 73. 10. —Same—Remarks by Judge. Where the court before reading his charge to the jury explained to- them the reason of the delay in the preparation of his charge, at which the jury had become impatient, there was no error. 11. —Same—Conduct of District Attorney. Where the district attorney, in examining the jurors before they were empanneled, stated to them that the law now makes it a felony to engage in the occupation of selling intoxicating liquors in local option territory and asked them whether they believed it was a good law, etc., which they answered in the affirmative, there was no reversible error. 12. —Same—Charge of Court—Charge as a Whole—Occupation. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the court’s charge, when taken as a whole, correctly charged the law under which defendant was being prosecuted, and the same could not have misled the jury to believe that two sales of intoxicating liquors would establish the offense, there was no reversible error. 13. —Same—Charge of Court—General Objections An objection to the charge of the court in a general way without pointing out specific error cannot be considered on appeal. Following Ryan v. State, 64 Texas Crim. Rep., 628, and other eases. 14. —Same—Charge of Court—Accommodation. Where, upon trial of unlawfully pursuing the occupation of selling inisidcating liquors in local option territory, the defendant claimed that he ordered the liquor as an accommodation to the parties to whom he was alleged to have sold it, and also claimed that he collected the money therefor before he ordered it, and the court’s charge in this respect specifically submitted the defendant’s theory, there was no error. 15. —Same—Charge of Court—Pursuing Occupation—Two Sales. It is never error to charge the law as it is, when appropriate to charge it at all, and where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court in his charge substantially submitted the statutes applicable to the facts in evidence and did not either directly or indirectly or by implication make the criterion of the offense to consist simply of two sales as synonomous with pursuing the business or following the occupation, but made defendant’s guilt depend upon the fact that he pursued such occupation and, in addition, made at least two sales as charged in the indictment, there was no error. 16. —Same—Charge of Court—Practice on Appeal. It is elementary that this court will not review complaints of the charge of the court when made for the first time in this court. In order to authorize a review of the court’s charge, the objection must be raised either by bill of exceptions or by motion for new trial in the court below; and where the appellant, on motion for rehearing, claimed for the first time, error in the court’s charge, because it required the jury to believe that he collected the money from the parties before the order for liquor was ma,de, the same could not be considered. 17. —Same—Charge of Court—Sale—Accommodation. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory,' the evidence showed that the defendant ordered liquor to be drunk with lunches with which he served certain parties, and the defendant claimed that he ordered this liquor for the accommodation of the parties and claimed that he collected the money from them before he ordered it, but the State denied this and contended that it was a sale and that he collected the money after ordering the liquor, and the court in his charge specifically followed the testimony as made by the defendant himself on this point in submitting the issue, there was no reversible error.
69 Tex. Crim. 580McGee v. State (1913)
The opinion states the case.
69 Tex. Crim. 582Bolton v. State (1913)
The opinion states the case.
69 Tex. Crim. 585Jenkins v. State (1913)
The opinion states the case.
69 Tex. Crim. 588Holmes v. State (1913)
The opinion states the case.
69 Tex. Crim. 593Lewis v. State (1913)
The opinion states the case.
69 Tex. Crim. 595Gradington v. State (1913)
The opinion states the case.
69 Tex. Crim. 598Christie v. State (1913)
The opinion states the case.
69 Tex. Crim. 602Berry v. State (1913)Affirmed
1. Trespass (§ 77*) — Criminal Responsibility — Statutory Provisions — Repeal oe Statutes. Pen.- Code 1895, art. 804, which made one entering inclosed and posted lands of another for hunting with firearms, etc., liable to a fine, by article 805 was made inapplicable to inclosures of 2,000 acres in one inclosure. Acts 26th Leg. c. 102, applying to inclosures of 2,00o1 acres or more, prohibited hunting upon inclosed and posted land under a penalty not exceeding $200, and provided by section 4 that it should not repeal the law as to inclosures of 2,000 acres or less; and Acts 28th Leg. c. 103, amending Pen. Code, art. 804, provided a penalty of not less than $10 nor more than $100, and by section 2 provided that it should not apply to inclosures containing 2,000 acres or more. Held that, as Pen. Code, art. 804i, was not repealed by Acts 26th Leg. c. 102, and as Acts 26th Leg. c. 102, was not repealed by Acts 28th Leg. c. 103, the law in 1903 prohibited hunting within inclosed and posted lands containing less than 2,000 acres without the consent of the owner, under penalty of not less than $10 nor more than $200, and hunting within inclosed lands containing more than 2,000 acres under fine not exceeding $200; the distinction in the two later acts being that inclosed lands of less than. 2,000 acres need no't be posted, while inclosures of 2,000 acres or more should be posted. [Ed. Note. — For other cases, see Trespass, Cent. Dig. § 167; Dec. Dig. § 77.*) 2. Statutes (§ 159*) — Repeal by Implication. A Legislature may repeal by implication; but, to justify the finding of the intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to repeal must be clearly expressed, and where the intention not to repeal is manifest there is no room for repeal by implication. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 229; Dec. Dig. § 159.*] 3. Statutes (§ 158*) — Presumptions to Aid Construction — Repeal by Implication. Where express terms are not used, the presumption is always against the intention to repeal. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.*] 4. Statutes (§ 152*) — Repeal—Express Repeal. An express repeal of a statute’ may be accomplished only by positive enactment; but, the question of repeal being one of legislative intent, an express declaration that a particular statute is repealed will not be given effect, where it was apparent that the Legislature did not so intend. [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 219, 223, 224, 227; Dec. Dig. § 152.*] 5. Statutes (§ 153*) — Express Repeai>-Re-cital in Title of Act. A recital in the title of an act that its purpose is. to repeal a previous act is not of itself sufficient for that purpose, in the absence of a repealing clause in the body of the statute ; tbe title not being an operative part of the act. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 220; Dec. Dig. § 153.*] 0. Statutes (§ 157*) — Repeal of Inconsistent Acts — General Repealing Clause. A general clause repealing all acts or parts of acts inconsistent therewith, while effective in repealing inconsistent enactments, extends only to those acts on the same subject, or parts of such acts, clearly inconsistent with the repealing act, and only to the extent of the conflicting provisions. [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 225, 226; Dec. Dig. § 157.*] 7. Statutes (§ 158*) — Repeal by Implication. A statute is repealed by implication whenever subsequent legislation shows that the Legislature does not intend it to remain in force, and, conversely, no statute operates as an implied repeal of an earlier statute, if it appears that the Legislature did n'ot so intend; but repeals by implication are not favored, and a statute will not be held to repeal any former law relating to the same matter, unless the later act is either repugnant to the earlier one, or fully embraces the subject-matter thereof, or unless the reason for the earlier act is removed. [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.*] 8. Statutes (§ 167*) — Repeal by Adoption of Code — Provision Omitted. Acts 26th Leg. c. 102, applicable to inclosures of 2,000 acres or more, prohibited hunting upon inclosed and posted land without the consent of the owner, under penalty of not more than $200, and by section 4 provided that it should not repeal the law as to inclosures of 2,000 acres or less. Pen. Code 1895, arts. 804, 805, and Acts 28th Leg. c. 103, amending article 804, not applying to inclosures of 2,000 acres or more, provided a penalty of not less than $10 or more than $100. The codifying commission provided by tbe Legislature of 1899 brought forward in the Penal Code of 1911 the act of 1903 as article 1255, and entirely omitted the act of 1899; and in 1911 the Code was enacted by bill providing in section 1 “that the following titles, chapters, and articles shall hereafter constitute the Penal Code of the state of Texas,” and in section 4 that “nothing in this act shall be construed or held to repeal * * * any law or act passed by this Legislature at its regular session.” and no other acts were specifically exempted from repeal. The Penal Code so adopted contained no express repeal of the act of 1899 and no provision dealing with the subject of that act. Held, that tbe adoption of the Code did not impliedly repeal the act of 1899, and that it was still in full force and effect. [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 242, 243; Dec. Dig. § 167.*]
69 Tex. Crim. 610Todd v. State (1913)
1. —Occupation—Local Option—Talesman—Sheriff. Where the sheriff was not disqualified to summon jurors in the case, the judge of the court was not authorized directly or indirectly to set him aside, as such officer, and appoint a private citizen to discharge the duties of sheriff in summoning talesman, and the same was reversible error; and the fact that the sheriff may have had a heated campaign for renomination did not disqualify him to summon jurors. 2. —Same—Evidence—Agreement in Other Case. Upon trial of unlawfully pursuing the occupation of selling intoxicating' liquors in local option territory, it was reversible error to introduce in evidence an agreement between defendant and the county attorney in another ease, in which defendant was charged with violating the local option law, and which agreement provided that defendant would not engage in the business of selling intoxicating liquors in the county of the prosecution while local option was in force in said county, etc., all of which had no connection with the instant case. 3. —Same—Charge of Court—Limitation. Where the charge of the court authorized the jury, with reference to the question of limitation, to convict for any offense that may have been comrnitted more'than three years prior to the time the indictment was presented, the same was error. 4.—Same—Charge of Court—Intoxicating Liquors—Beer. Jn the absence of proof on the subject as to whether beer was intoxicating or non-intoxicating, the court judicially knows and determines that "beer is an intoxicant. Following Moreno v. State, 64 Texas Crim. Rep., 660, and other cases. Davidson, Presiding Judge, dissenting.
69 Tex. Crim. 614Cowan v. State (1913)
Local Option—Information—Date of Offense. Where the evidence showed that the offense was committed four days after the complaint and information were filed, the conviction could not be sustained.
69 Tex. Crim. 615Scott v. State (1913)
Gaming—Betting at Dice—Sufficiency of the Evidence. Where, upon trial of betting at dice, the evidence showed.that the defendant threw the dice and put up his money, the conviction was sustained, although the State’s witness did not remember any specific bet made by the defendant, there being several engaged in the throwing of dice.
69 Tex. Crim. 616Scott v. State (1913)
1. —Gaming—Date of Offense—Sufficiency of the Evidence—Limitation. Where, upon trial of betting at a game of dice, no other reasonable conclusion could be reached by the evidence, as a whole, than that the offense was committed on or about the date alleged in the information, and no question of limitation having been raised by the evidence, the convistion was sustained. 2. —Same—Gaming—Dice—Private Residence—Definition of Offense. To bet at a game of dice is unlawful wherever the game occurs. It is only a game with cards and dominoes that is no offense when played at a private residence occupied by a family. 3. —Same—Venue—Bill of Exceptions. Where, upon trial of playing dice, the venue was clearly proved, there was no error; besides, in the absence of a bill of exceptions, the question of venue could not be passed upon on appeal.
69 Tex. Crim. 617Broadnax v. State (1913)
1. —Selling Intoxicating Liquors Without License—Information. Where, upon trial of selling intoxicating liquors in non-local option territory without license, the information followed approved precedent, there was no error in overruling a motion to quash, Following Gill v. State, 67 Texas Crim. Rep., 585. 2. —Same—Charge of Court—Requested Charges. Where the court’s main charge, and the requested charges submitted, presented every phase of the law applicable to the evidence, there was no error in refusing further requested charges.
69 Tex. Crim. 618Kelly v. State (1913)
Theft from Person. In the absence of a statement of facts, a refusal to grant a continuance ■ and new trial on account of the newly discovered evidence, cannot be considered on appeal.
69 Tex. Crim. 619Irby v. State (1913)
The opinion states the case.
69 Tex. Crim. 624Simmons v. State (1913)
1. —Murder—Evidence. Where testimony which was first ruled out by the court was afterwards admitted on behalf of defendant, there was no error. 2. —Same—Charge of Court—Murder. Where the evidence raised the issue of murder in both degrees, it was proper for the court to charge thereon in the proper form. Following Barton v. State, 53 Texas Crim. Rep., 443, and other cases. 3. —Same—Charge of Court—Manslaughter—Words and Phrases. Where, upon trial of murder, the evidence showed that the killing occurred after the first meeting, but the court, nevertheless, charged on manslaughter and adequate cause, the defendant had no ground to complain, and the contention that the charge of the court used the words, sudden passion,” is without merit. 4. —Same—Charge of Court—Requested Charges—Self-defense. Where, upon trial of murder the court properly charged on self-defense as made by the evidence, there was no error in refusing requested charges on the same subject.
69 Tex. Crim. 626Corley v. State (1913)
1. —Aggravated Assault—Continuance—Mutual Combat. Where it was a serious question whether defendant invited the injured party out of the house or whether he acted in self-defense, he should have been permitted to procure the witnesses who were present at the difficulty. 2. —Same—Charge of Court—Self-defense—Force. Where, under the evidence, the issue of mutual combat and self-defense were presented, defendant’s right of self-defense should not have been abridged by a charge on excessive force, as the evidence did not raise this issue. 3. —Same—Evidence—Bloody Clothing. Where the location of the wound was not disputed and that the defendant did the cutting, the court should not have permitted in evidence, the bloody coat which the injured party wore at the time he was cut and permit prosecuting counsel to comment thereon.
69 Tex. Crim. 628Vickers v. State (1912)
The opinion states the case.
69 Tex. Crim. 633Graso v. State (1913)
The opinion states the case.
69 Tex. Crim. 634Eason v. State (1913)
Local Option—Information—Complaint. Where the complainant swore positively to a sale instead of his belief, and the information and complaint did not negative the fact that a sale was' not made on a prescription, etc., the same were, nevertheless, sufficient.
69 Tex. Crim. 635Gamboa v. State (1913)
1. —Fraudulent Conversion—Reproduction of Testimony—Impeachment. In the absence of a proper predicate, it was error to reproduce the testimony of an absent witness; besides, the testimony was not of an impeaching character and should not have been admitted for that purpose. 2. —Same—Evidence—Rebuttal. Where, upon trial of fraudulent conversion of a horse, the defendant sought to meet the testimony of the alleged owner that he had inquired about his horse by showing that he had not made such inquiry, he should have been permitted to do so.
69 Tex. Crim. 637Rivers v. State (1913)
The opinion states the case.
69 Tex. Crim. 638Clyman v. State (1913)
The opinion states the case.
69 Tex. Crim. 639Matthews v. State (1913)
1. —Theft of Hog—Insufficiency of the Evidence. . See opinion for facts held to be insufficient to sustain a conviction for theft of a hog. 2. —Same—Charge of Court—Defensive Theory. Where, upon trial of theft of a hog, the evidence showed that defendant claimed to have purchased the hogs, the meat of which was found in his possession, etc., the court should have submitted his defensive theories of the case. 3. —Same—Charge of Court—Circumstantial Evidence. Where, upon trial of theft of a hog, the evidence was circumstantial, the court should have submitted a proper charge thereon. 4. —Same—Remarks by Judge—Comment on Testimony. Upon trial of theft of a hog, it was error on part of the trial judge to make certain remarks on the condition of the witness and the character of his testimony with reference to finding tracks, etc., as the same was a direct comment on the testimony and in violation of the statute.
69 Tex. Crim. 642Clark v. State (1913)
1. —Burglary—Sufficiency of the Evidence. . Where,- upon trial of burglary, the evidence, although conflicting, sustained the conviction, there was no error. 2. —Same—Circumstantial Evidence—Charge of Court. Where there was positive evidence, there was no error in the court’s failure to charge on circumstantial evidence. 3. —Same—Newly Discovered Evidence—Acquittal of Codefendant—Rule Stated. Where two are jointly indicted and one is tried and convicted and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where it appears that the new evidence is legal and competent and material to his defense. Following Rucker v. State, 7 Texas Crim. App., 549, and other eases. 4. —Same—Case Stated—Codefendant as Witness. Where the State’s witnesses testified that defendant and his codefendant were always together when they were in possession of the alleged stolen property taken from the burglarized house and when defendant made admissions of his guilt, and said codefendant was acquitted after defendant was convicted, and it appeared in the motion for new trial that the codefendant would testify that all of these statements of the State’s witnesses were false, a new trial should have been granted.
69 Tex. Crim. 644Perry v. State (1913)
1. —Robbery—Bills of Exception—Filing. Where, upon appeal from a conviction of robbery, it appeared from the record that the bills of exception were not filed within time, they were stricken out on motion of the State. 2. —Same—Statement of Facts—Practice on Appeal. Where appellant filed a motion in the trial court asking that the original statement of facts in question and answer form as made up by the stenographer be sent up, which was overruled, and he thereupon accepted the bill of exceptions, as qualified by the court, it is too late to complain in this court, and this cannot be shown by ex parte statements. 3. —Same—Evidence—Witness—Convict—Pardon. Upon trial of robbery, there was no error in the ruling of the court below that a conviction of a State’s witness could not be proved orally, but that the judgment of conviction is the best evidence. 4. —Same—Evidence—Convict—Pardon. Where the court permitted the defendant on cross-examination of a State’s witness for purposes of impeachment to show orally that the witness was convicted and afterwards pardoned, there was no error. „ 5. —Same—Evidence—Judgment of Conviction—Bill of Exceptions. In the absence of a bill of exceptions embracing the judgment and sentence of conviction, this court cannot pass on the question that such judgment was offered in evidence. 6. —Same—Evidence—Date of Offense—Limitation. Where the indictment alleged the date of the offense on or about a certain date, there was no error in admitting testimony that the offense occurred within the period of limitation. Following Cudd v. State, 28 Texas Crim. App., 124, and other cases. 7. —Same—Evidence—Conversation. Where the State’s witness was detailing the conversation with defendant in regard to committing the robbery, there was no error in admitting in evidence a part of the same conversation. 8. —Same—Evidence—Accomplicé—Corroboration. Where it became necessary to corroborate the accomplice testimony relating to an agreement at a certain place to commit the alleged robbery, there was no error in admitting testimony that the accomplice and the defendant were seen at that place, fixing the time by the occurrence of the said robbery. 9. —Same—Evidence—Circumstances. Upon trial of robbery, there was no error in admitting testimony that the State’s witness loaned the defendant some money and that the day after the robbery, he paid it back, and that defendant had no money prior to said, date. 10. —Same—Evidence—Identification—Opinion of Witness. Upon trial of robbery, there was no error in permitting the State’s witness who was alleged to have been robbed to testify that in his opinion defendant was one of the men who committed the robbery. Following Coffman v. State, 51 Texas Crim. Rep., 478, and other cases. 11. —Same—Impeaching Own Witness—Surprise. Upon trial of robbery, there was no error, under Article 795, Code Criminal Procedure, to permit the State who claimed surprise to show that its witness had made a different statement as to the party who committed the robbery from the one he had made on the stand. 12. —Same—Evidence—Flight. Upon trial of robbery, there was no error in permitting the State to show that shortly after the alleged robbery search was made for the defendant and he could not be found, and that he was subsequently arrested in a distant county. 13. —Same—Bills of Exception. Where the bills of exception were not filed within time, but this court, nevertheless, considered them that there might not be any complaint, there was no reversible error. 14. —Same—Sufficiency of the Evidence—Requested Charge. Where the court’s main charge covered the requested charges except one, which instructed the jury to acquit peremptorily, and the evidence sustained the conviction, there was no error. 15. —Same—Circumstantial Evidence—Charge of Court. Where the evidence was positive, there was no error in the court’s failure to charge on circumstantial evidence. 16. —Same—Accomplice Testimony—Charge of Court—Alibi. Where, upon trial of robbery, the court instructed on alibi and accomplice testimony according to approved precedent, there was no error. Following Brown v. State, 57 Texas Crim. Rep., 570. 17. —Same—Practice on Appeal. The presumption that the court below acted fairly in regard to giving bills of exception must prevail in this court, until it otherwise appears from the record.
69 Tex. Crim. 649Thomas v. State (1913)
1. —Assault to Murder—Statement of Facts—Behearing. Where the case was affirmed in the absence of a statement of facts, but it was shown on motion for rehearing that the clerk had inadvertently omitted the same from the record, the case will be heard on its merits. 2. —Same—Reasonable Doubt—Charge of Court. Where, upon trial of assault to murder, the evidence developed two theories, one, that of the State, that the defendant made the assault with intent to kill, and that of the defense, of perfect self-defense, and the court properly^ charged on the burden of proof, reasonable doubt and the presumption of innocence, there was no error in the court’s refusal of defendant’s requested charge that there must be a concurrence of the twelve minds of the jurors, etc., with reference to reasonable doubt. 3. —Same—Charge of Court—Self-Defense. Where, upon trial of assault to murder, the court submitted defendant’s theory of self-defense in a proper charge, there was no error. 4. —Same—Charge of Court—Manslaughter—Aggravated Assault. Where, upon trial af assault to murder, the issue of manslaughter did not arise from the evidence, there was no error in the court’s failure to charge on aggravated assault. 6.—Same—Rule Stated—Aggravated Assault. If a case is either assault to murder or perfect self-defense, it is not error to fail to charge on aggravated assault. Following Johnson v. State, 47 Texas Crim. Rep., 300, and other cases. 6. —Same—Rule Stated—Aggravated Assault. If the case is either assault to murder or that defendant is guilty of no offense, it is not error to fail to charge on aggravated assault. Following Bramlette v. State, 21 Texas Crim. App., 611, and other eases. 7. —Same—Manslaughter—Rule Stated—Adequate Cause. If, had death resulted, the issue of manslaughter would not be in the case, it is not error to fail to charge on aggravated assault on the theory of sudden passion aroused by inadequate cause. Following Anderson v. State, 15 Texas Crim. App., 447, and other cases.
69 Tex. Crim. 654Ponder v. State (1913)
1. —Aggravated Assault—Evidence—Undisclosed Motive. Where, upon trial of aggravated assault, the court permitted the alleged assaulted party to testify that a few moments before the difficulty, he put his pistol in his pocket on account óf the information he had received from the clerk of the hotel with reference to defendant—of all of which defendant had no knowledge, the same was reversible error. 2. —Same—Evidence—Codefendant. Until a party is indicted, he is not rendered incompetent to testify in behalf of a codefendant, and where the court excluded such testimony, the same was reversible error. Following Scroggin v. State, 30 Texas Crim. App., 92, and other eases. 3. —Same—Charge of Court—Provoking Difficulty—Converse of Proposition. Where the evidence raised the question as to whether defendant provoked the difficulty, arid there was testimony pro and con, the court should have submitted, where he charged on provoking the difficulty, the converse of the proposition. Following Gaines v. State, 58 Texas Crim. Rep., 631.
69 Tex. Crim. 656Bogue v. State (1913)
1. —Murder—Sufficiency of the' Evidence—Manslaughter. Where, Upon trial of murder and a conviction of manslaughter, the evidence supported even a higher grade of the offense, while defendant’s testimony showed justifiable homicide, the conviction is sustained. 2. —Same—Evidence—Motive—Remarks by Judge. Where, upon trial of murder, it appeared that all the testimony admitted was necessary to render intelligible that part of it as to what defendant said about killing deceased, there was no error, and the remark of the court when the objection thereto was made could not have been hurtful to the defendant. 3. —Same—Evidence—Husband and Wife—Cross-Examination—Moral Turpitude. Where defendant’s wife had been introduced as a witness to testify to material facts in behalf of her husband, the defendant, there was no error in permitting the State to prove by her that she had been convicted of the offense of keeping a disorderly house, which was an offense involving moral turpitude. 4. —Same—Evidence—Immaterial Matter. Upon trial of murder, there was no error in excluding testimony that the State’s witness had a pistol on the day prior to the homicide. 5. —Same—Evidence—Trespasser. Upon trial of murder, there was no error in permitting the State’s witness to testify that he heard defendant say two days prior to the homicide that he had authorized deceased and others to pick the cotton in dispute, to show he was not a trespasser. 6. —Same—Argument of Counsel. In the absence of a bill of exceptions or a requested charge, complaints as to arguments of counsel cannot be considered on appeal. 7. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence, under a proper charge of the court, sustained the conviction, there was no error. [Rehearing denied April 23, 1913.—Reporter.]
69 Tex. Crim. 659Nickerson v. State (1913)
1. —Aggravated Assault—Officer—Arrest—Warrant—Serious Bodily Injury. Where the indictment charged the defendant with an assault upon an officer, and also by inflicting serious bodily injury, and the evidence showed that the officer had no warrant to arrest defendant, etc., but that the latter inflicted serious bodily injury, the conviction could, nevertheless, be sustained for aggravated assault; especially, where the court submitted simple assault also. 2. —Same—Aggravated Assault—Serious Bodily Injury. Where the evidence showed that defendant was illegally arrested and that he made no effort to effect his release, but used abusive language towards the officer, who struck him, wheréupon defendant inflicted upon said officer serious bodily injury, he was guilty of aggravated assault. 3. —Same—Charge of Court—Requested Charges. Where, upon trial of aggravated assault, defendant’s requested charges were substantially given in the court’s main charge, there was no error. 4. —Same—Peremptory Instructions. Where, upon trial of aggravated assault, the evidence sustained the conviction, there was no error in the court’s failure to submit a peremptory charge to acquit. 5. —Same—Misdemeanor—Bill of Exceptions. In the absence of bills of exception to the ruling of the court in misdemeanor cases, the grounds in the motion for new trial cannot be considered on appeal. Following Basques v. State, 56 Texas Crim. Rep., 329, 6.—Same—Sufficiency of the Evidence. Where, upon trial of aggravated assault for inflicting serious bodily injuries, the evidence sustained the conviction, there was no error. [Rehearing denied March 26, 1913.—Reporter.]