70 Tex. Crim.

Volume 70 — Texas Criminal Reports

132 opinions

70 Tex. Crim. 1Acosta v. State (1913)
The opinion states the case.
70 Tex. Crim. 2Donahue v. State (1913)
The opinion states the case.
70 Tex. Crim. 3Wilson v. State (1913)
1. —Assault to Murder—Sufficiency of the Evidence. Where, upon trial of assault to murder, the evidence sustained the conviction, there was no error on this ground. 2. —Same—Evidence—Co-Conspirators—Motive—Limiting Testimony. What is said and done by any of the conspirators pending the conspiracy and in furtherance of the common design is admissible against the one on trial, though said and done in his absence; and where such testimony showed the motive of the parties, there was no error in the court’s failure to limit the same. 3. —Same—Severance—Change of Venue. Where a severance is granted, there was no error in changing the venue to different counties; especially, where this is done with the consent.of the defendants. 4. —Same—Evidence—Conversation. Under article 811, Code Criminal Procedure, the whole of the conversation as it relates to the same matter may be inquired into by the opposite party, when part of a conversation is introduced in evidence by one party. Following Carter v. State, 59 Texas Crim. Rep., 73. 5. —Same—Evidence—Supporting Testimony. . Where the theory of the State was that the defendant and his companions had stopped at a certain place to waylay the assaulted party, there was no error in admitting testimony in support of the prosecutor that he had lost his hat there. 6. —Same—Charge of Court—Defense Theory. Where, upon trial of assault to murder, the evidence showed that the defendant did not do the actual shooting and that during the difficulty between the prosecutor and defendant’s companions the defendant declared that they wait a minute to hear what prosecutor had to say, when the only shot was fired by one of defendant’s companions, who was not in the conspiracy with defendant to whip the prosecutor, the court should have submitted defendant’s requested charges on this theory of the case. 7. —Same—Charge of Court—Aggravated Assault—Conspiracy. Where the State’s evidence showed that the defendant with others entered into a conspiracy to whip the party assaulted if he did not make a satisfactory explanation, and one of said companions afterwards shot at the party injured and went further than the conspiracy originally contemplated, the court should have submitted this phase of the case, as defendant would not be guilty of a graver offense than aggravated assault. Following Goodwin v. State, 58 Texas Crim. Rep., 496, and other cases. 8. —Same—Charge of Court—Conspiracy—Theory of Defense. Where the State’s case was based on the theory of a conspiracy which defendant combated in his evidence, and it was also shown that the shot was fired by one of defendant’s companions, the court should have instructed the jury that unless the jury found that a conspiracy existed to take the life of the assaulted party, they could not consider the testimony of the acts and conduct of the companions against the defendant.
70 Tex. Crim. 8Dawson v. State (1913)
The opinion states the case.
70 Tex. Crim. 10Shed v. State (1913)
The opinion states the case.
70 Tex. Crim. 16Snider v. State (1913)
1. —Disorderly House—Selling Spirituous Liquors—Information. Where, upon trial of keeping a disorderly house in which spirituous and other liquors were kept for sale without license, the information followed approved precedent, the same was sufficient. Following Joliff v. State, 53 Texas Crim Rep., 61, and other cases. 2. —Same—Evidence—Declarations toy Defendant. Where defendant was not under arrest at the time he made the declarations that he was the manager of the place where the liquors were sold, there was no error in admitting same in evidence. Following Williams v. State 53 Texas Crim. Rep., 2, and other cases. 3. —Same—Date of Offense. Where the record showed that the acts constituting the offense were committed prior to the arrest of the defendant and the filing of the complaint, there was no error on this ground. ^
70 Tex. Crim. 17Dimitri v. State (1913)
1. —Keeping Disorderly House—Sufficiency of the Evidence. Where, upon trial of keeping a disorderly house for purposes of prostitution, the evidence sustained the conviction, there was no error. 2. —Same—Evidence—Circumstances. Upon trial of keeping a disorderly house for the purposes of prostitution, there was no error in admitting testimony that the officer had arrested twelve women at the alleged house and that he knew they were prostitutes and that they pleaded guilty. Following Robbins v. State, 60 Texas Crim. Rep., 523, and other cases. 3. —Same—Charge of Court—Good Faith—Knowledge. Where, upon trial of keeping a disorderly house, the evidence showed that defendant knew the character of the house to be one used for the purposes of prostitution, there was no error in the court’s refusal to submit the question of good faith in renting the rooms thereof.
70 Tex. Crim. 19Beaupre v. State (1913)
The opinion states the case.
70 Tex. Crim. 22Bowman v. State (1913)
1.—Burglary—Intent—System—Evidence—Other Offenses—Charge of Court. Where, upon trial of burglary, the evidence clearly showed that ihe person entering the building alleged to have been burglarized did so with the intent to commit theft, it was reversible error to admit evidence that other stores were burglarized some months prior to the burglary of the instant case, as such other offenses would not add any additional strength to the force of the testimony showing defendant’s guilt; besides, the court failed to limit such testimony. 3.—Same—Buie Stated—Other Offenses. A defendant should be tried on the merits of each case, and proof of extraneous crime which does not go to show intent, identity or system, or which is no part of the res gestae is not admissible if it could only show that defendant was a criminal .generally. Following Gilbraith v. State, 41 Texas, 567, and other cases.
70 Tex. Crim. 24Sanchez and Gamboa v. State (1913)
The opinion states the case.
70 Tex. Crim. 30Haley v. State (1913)
1. —Theft of Horse—Possession—Security for Debt. Where defendant was prosecuted under article 1329, Penal Code, for theft of property which had been left with him as a pledge or security for debt, there was no error in admitting evidence of the preliminary transactions and agreements between the defendant and the prosecutor which led up to the pledge of the alleged stolen horses left in the possession of defendant; besides, the bills of exception were defective in not pointing out the alleged error. 2. —Same—Evidence—Self-serving Declarations. Upon trial of theft of horses left as a pledge in defendant's possession, there was no error in excluding testimony that defendant had brought a civil suit for the possession of said horses since the alleged trade and before the- finding of the indictment, as this was self-serving testimony; besides, the bill of exceptions was defective. Following Conger v. State, 63 Texas Crim. Rep., 312. 3. —Same—Charge of Court—Weight of Evidence. Where, upon trial of theft of horses as a pledgee, the court submitted a charge in accordance with the law and the evidence, and defendant complained that the same was on the weight of the evidence, there was no error. Following Duren v. State, 15 Texas Crim. App., 624, and other cases. 4. —Same—Sufficiency of the Evidence. Where, upon trial of theft of horses left as a pledge in the possession of defendant, the evidence, although conflicting, sustained the conviction, there was no error.
70 Tex. Crim. 37Davis v. State (1913)
The opinion states the case.
70 Tex. Crim. 45Thornton v. State (1913)
1. —Malicious Mischief—Knowingly Turning Stock on Inclosed Lands of Another—Recognizance—Reinstatement. Where the appeal was dismissed on account of a defective recognizance, but a sufficient recognizance was thereafter filed, the appeal is reinstated. 2. —Same—Insufficiency of the Evidence. Where the uncontroverted evidence showed that defendant was in possession of the land upon which he is charged of knowingly turning stock without the consent of the owner, by reason of a rent contract from the latter, and that neither the land nor the crops thereon were injured by turning horses thereon, and that he had a right to control the premises for all reasonable purposes, a conviction could not be sustained. Following Coggins v. State, 12 Texas Crim. App., 109, and other cases.
70 Tex. Crim. 47Maddox v. State (1913)
The opinion states the case.
70 Tex. Crim. 48Hightower v. State (1913)
1.—Local Option—Contest—Collateral Attack. Where the election for local option was not contested under article 5728, Revised Civil Statutes, it must be conclusively presumed that a valid and binding election was had, and the same can not be reviewed collaterally. 3.—Same—Evidence—Statutes Construed—Witness. Under article 815, Code Criminal Procedure, the court did not err in admitting testimony by the chief State’s witness to the effect that^ he did testify before the grand jury that he was the purchaser named in the indictment and gave the money to the defendant for the whisky, the witness first having testified that he did not deliver the money to the defendant. 3.—Same—Sufficiency of the Evidence. Where the alleged purchaser of the whisky first stated that he did not deliver the money to the defendant, but afterwards stated that he did so testify before the grand jury and now so testified before the jury, and this testimony was corroborated by another State’s witness, the conviction of a violation of the local option law was sustained.
70 Tex. Crim. 50Chumley v. State (1913)
Local Option—Insufficiency of the Evidence. Where the alleged purchaser of the whisky testified that he got the same, not from the defendant, but from another, and another State’s witness undertook to show that said purchaser paid the defendant something which he did not see or describe or that it was in payment of the whisky, the conviction could not be sustained.
70 Tex. Crim. 52Robbins v. State (1913)
1. —Murder—Misconduct of Jury—Opinion of Juror. Where two of the jurors who sat on defendant’s case had expressed themselves as to the guilt of the defendant and denied under oath on their voir dire that they had, and one of them sat in the courtroom and heard the testimony on the former trial, who denied ever, having heard anything of the case, the cause must be reversed and remanded, as there is nothing in the record making any denial of this. 2. —Same—Charge of Court—Character and Disposition of Deceased. Where, upon trial of murder, there was no evidence as to the relative strength of the parties and the character and disposition of the deceased, the court should not have submitted a charge on this matter. 3. -—Same—Charge of Court—Self-defense—Threats. Where, upon trial of murder, there was evidence of threats by deceased, it was not a question whether the threats were actually made, but the charge of the court on self-defense should have instructed the jury that this must be viewed from defendant’s standpoint, and not from the standpoint as to whether the threats were or were not made. 4. —Same—Charge of Court—Words and Phrases. Where the court’s charge encumbered defendant’s defensive matter with the words, “but he would not have the right to go with this gun, intending to harm deceased,” etc., the same was error, as defendant’s side of the case should be given untrammeled by the State’s view of it. * 5. —Same—Motion for Rehearing—Misconduct of Jury—Practice on Appeal. Where the facts adduced upon motion for new trial on the question of misconduct of jury were not filed in the court below during the term, they cannot be considered on appeal, and where the State filed such testimony in this court and requested a recall of the mandate, the motion for rehearing on this ground must be overruled.
70 Tex. Crim. 57Scott v. State (1913)
The opinion states the case.
70 Tex. Crim. 62Smith v. State (1913)
1. —Murder—Evidence—Declarations of Third Party—Bes. Gestae. Where the declarations were not wholly disconnected with the transaction and were not made by an outsider, but by one of the actors at least in the event leading up to the homicide, and at the time the shots were fired which killed the deceased, they were admissible as res gestae; however, as they were withdrawn by the court, there was no reversible error. Following Roberts v. State, 48 Texas Crim. Rep., 210, and other cases. 2. —Same—Evidence—-Declarations by the Defendant. ■Upon trial of murder, there was no error in admitting the declarations of the defendant to his son shortly after the killing occurred, not to tell the matter in any other way. 3. —Same—Evidence—Examining Trial Testimony. Where defendant’s son had testified the day after the homicide at the examining trial and his testimony was reduced to writing and signed by him, there was no error in introducing this in evidence, where the witness had no independent recollection of the matter until this former written testimony was called to his attention, when he testified as to what defendant said immediately after the shooting. 4. —-Same—Evidence—Isolated Acts—Character of Deceased. Isolated acts which would tend to show that deceased was a dangerous man are not admissible in evidence, unless knowledge of them is brought to defendant on trial, at the time of or prior to the difficulty. Following Willis v. State, 49 Texas Crim. Rep., 139, and other cases. 5.—Same—Evidence—Bills of Exception. In the absence of bills of exception, the admissibility or rejection of testimony cannot be considered on appeal. 6.—Same—Charge of Court—Murder in the Second Degree. Where the court’s charge of murder in the second degree instructed the jury that the killing must have been unlawful, and defined implied malice under which the act must have been done, and did not command a conviction of defendant if done under the influence of sudden passion aroused by adequate cause, and when considered as a whole, correctly applied the law to the facts, there was no error. Following Carson v. State, 57 Texas Crim. Rep., 394, and other cases; besides, there was no manslaughter in the case. 7.—Same—Charge of Court—Self-defense—Threats. Where the evidence showed threats by the deceased against the defendant, the court should have submitted the law that if deceased, by words or conduct done at the time of the homicide, created a reasonable apprehension or fear in the mind of the defendant that deceased was then and there about to slay him, etc., to acquit. Following Hightower v. State, 56 Texas Crim. Rep., 248, and other cases.
70 Tex. Crim. 68Smith v. State (1913)
The opinion states the case.
70 Tex. Crim. 71Lopez v. State (1913)
1. —Abduction—Prostitution—Definition of Offense. Under article 1060, Penal Code, it was intended to make it an offense for a person to take a girl under fourteen years away from her parents for the purpose of having carnal intercourse with her individually, as this would constitute a prostitution of the girl. 2. —Same—Other Offense—Rape. The offense of abduction can be committed although no act of intercourse takes place, and although defendant might have been charged with rape, if in- " tercourse was had, the State could elect and charge defendant with a lesser grade of the offense. 3. —Same—Age of Prosecutrix. Under article 1060, Penal Code, the female must be under the age of fourteen years to constitute the offense of abduction, and where the evidence conclusively showed that she was over the age of fourteen years at the time of the alleged abduction, the conviction could not be sustained. 4. —Same—Age of Prosecutrix—Evidence. Where the witness did not know anything about the date of prosecutrix’s birth, he should not have been permitted to testify that she appeared to be under fourteen years of age.
70 Tex. Crim. 73Wright v. State (1913)
The opinion states the case.
70 Tex. Crim. 73Corbett v. State (1913)
Misdemeanor—Jurisdiction—Appeal. Under article 87, Revised Code Criminal Procedure, it is provided that where the case originates in the Justice or Recorder’s Court or other inferior court and is appealed to the County Court, and in the latter court, the judgment is for $100 or less, the judgment is final.
70 Tex. Crim. 75Liner v. State (1913)
1.—Wilfully Injuring Heal Property—Evidence—Contradicting Own Witness—Ex Parte Statement. Upon trial of wilfully injuring real property where the State’s witnesses refused to testify to what they had said before in an ex parte written statement made before the county attorney, it was reversible error to permit the State to prove by the constable what statements these witnesses had made before the county attorney as a basis upon which to found a verdict of guilty; especially, where the court did not limit this testimony to the credibility of the witnesses. Z.—Same—Argument of Counsel. Where, upon trial of wilfully injuring real property, the county attorney was permitted, in his argument, to discuss other offenses outside of the evidence in the record, the same was reversible error.
70 Tex. Crim. 77Rodriguez v. State (1913)
The opinion states the case.
70 Tex. Crim. 79Evans v. State (1913)
Fraudulent Conversion—Indictment—Contract of Hiring. Where, upon trial of fraudulent conversion, the indictment sufficiently alleged a contract of hiring, there was no error in overruling a motion to quash.
70 Tex. Crim. 80McDonald and Harper v. State (1913)
1. —Theft—Escape—Affidavit. Where, upon appeal, affidavits were filed showing that one of the appellants had escaped from custody, the appeal as to him must be dismissed. 2. —Same—Sufficiency of Evidence—Becent Possession. Where, upon trial of theft, the defendants were found in possession of the stolen goods, without sufficient explanation, the conviction was sustained. B.—Same—Burglary—Theft—Separate Offense, The conviction of burglary upon the same transaction would not bar a prosecution for theft. 4.—Same—Possession—No Variance. Where, upon trial of theft, the evidence sustained the allegations in the indictment as to the person in possession of the alleged stolen goods, there was no error, although the possession in the burglary case might have been in a different person.
70 Tex. Crim. 81Robinson v. State (1913)
1. —Assault to Murder—Evidence—Impeaching Witness. Where the principal State’s witness testified that she did not know whether she had. been indicted for a felony within the last two or three years and did not remember whether she had been 'indicted as a common prostitute, the court should have permitted defendant to introduce the indictments show- 1 ing that she had been so indicted. 2. —Same—Charge of Court—Adequate Cause. Where, upon trial of murder, the court did not define what constituted adequate cause, the question of intent to kill having been raised by the evidence, the same was reversible error. 3. —Same—Charge of Court—Aggravated Assault. Where, upon trial of assault to murder, it was a serious question from the evidence whether defendant had an intent to kill or whether it was simply aggravated assault, the court should have submitted these matters properly to the jury.
70 Tex. Crim. 84Walker v. State (1913)
The opinion states the case.
70 Tex. Crim. 89Strong v. State (1913)
2. Tried below before the Hon. Barry Miller. Appeal from a conviction of knowingly permitting gambling on premises under defendant’s control; penalty, two years imprisonment in the penitentiary. The opinion states the case.
70 Tex. Crim. 138Jenkins v. State (1913)
Minor—Intoxicating Liquors—Gift—Loan—Sale. Where, upon trial of giving and causing to be given intoxicating liquors to a minor, etc., the evidence showed that there was no gift, but a loan, which under the law would have been a sale in local option territory, the conviction could not be sustained; especially, where the court charged the jury that a loan would come within the meaning of the statute.
70 Tex. Crim. 140Oliver v. State (1913)
1. —Murder—Indictment—Race Discrimination—Change of Venue. Where, upon trial of murder, defendant moved to quash the indictment because of race discrimination in the selection of a grand jury, after the venue thereof had been changed, and besides, it did not appear that the motion alleged that defendant was a negro nor was this proved, there was no error in overruling same. Following McCline v. State, 64 Texas Crim. Rep., 19, and other cases; besides, no race prejudice was proven. Following Villa v. State, 63 Texas Crim. Rep., 537. 2. —Same—Evidence—Bill of Exceptions—Latitude in Questioning Witnesses. Where the bill of exceptions to the action of the court in sustaining objections to defendant’s question to the witness, upon hearing the issue of race discrimination, failed to state what the answers of the witnesses would have been, the same could not be considered on appeal; besides, ample latitude was given by the court in propounding questions to witnesses. 3. —Same—Continuance—Illness of Defendant—Want of Diligence. Where defendant’s fourth application for continuance contended that he was too sick to go to trial, and also for the want of a witness, which was contested by the State, and it was shown that neither ground was well taken, there was no error in overruling the motion, both on the ground that defendant was not too unwell to go to trial, and that he had not used proper diligence to procure the attendance of the absent witness; besides, he could have proved the same facts by other witnesses in attendance. 4. —Same—Trial Judge—District Court—Court House—Absence of Defendant. Where, upon trial of murder, it appeared that the regular district judge was disqualified to try the ease, and that another district judge sat in exchange on the trial of the case in the same courthouse where the regular judge was holding court, but in a different part thereof, a motion to quash the special venire on the ground that it was drawn by said exchange judge in the office of the clerk of the District Court in said courthouse while the regular judge was trying a civil case in the courtroom of said courthouse, and also because the defendant and his attorney were not present at the drawing of said special venire, was correctly overruled, and there was no error in the court’s action. 5. —Same—Confessions—Evidence—Voluntary Confessions—Questions and Answers. Where defendant’s confessions were in writing in accordance with law, and it was shown that they were voluntarily made, a contention that they were made in answer to questions propounded by the officer was correctly overruled; besides, this objection is not disclosed in the bill. 6. —Sdme—Evidence—Declarations of Third Party—Hearsay. Upon trial of murder, the declarations of a third party as to the motive of the defendant in killing deceased because he was intimate with defendant’s wife were correctly excluded, as it was shown that said third party was ’ not present at the time of the homicide, and that his declarations were hearsay. 7. —Same—Evidence—Plight of Defendant. Where, upon trial of murder, defendant attempted to counteract evidence of his flight by offering to show that the sheriff’s wife told her husband sometime after the killing of the deceased that some one called for him, the same was correctly excluded as hearsay, as she did not know who it was that called her husband; having been permitted to testify that many people called and were told by her that the sheriff was not there. 8. —Same—Evidence—General Reputation for Unchastity. Where, upon trial of murder, defendant’s wife was not offered as a witness by either side, there was no error in the court’s ruling excluding testimony as to her general reputation for unchastity. 9. —Same—Evidence—Res Gestae—Declarations of Third Party. Where, upon trial of murder, the State sought to show that defendant waylayed deceased and assassinated him while the latter and others were trying to take defendant’s wife to the house of the sheriff in the night-time to protect her against the assaults of the defendant, and offered such testimony to counteract the contention of the defendant that he killed deceased because he found him in compromising relations with defendant’s wife, there was no error in permitting the State to introduce declarations of a third party who was with deceased, to the effect that just before the killing he loudly called the defendant’s wife to come out of her room and go to the sheriff’s house, it having been shown that defendant was near enough to hear and see what was going on at the time; the court properly limiting this testimony and instructing the jury that unless they believed beyond a reasonable doubt that defendant heard said declarations to disregard it. Following Lagrone v. State, 61 Texas Crim. Rep., 170. 10. —Same—Special Venire—Jury and .Jury Law—Swearing Deputy Sheriffs. Where defendant moved to quash the first special venire because eighty men were drawn and fifty-four of those summoned, and only ten of those who had been summoned answered the call, and it appeared from the record that some of the jurors were properly excused, some dead, and some out of the State; that defendant in no way sought any attachment to bring in the special veniremen who were summoned and did not attend; that no objectionable juror was forced upon the defendant, and that his peremptory challenges were not exhausted, there was no error in the court’s action ordering the summoning of fifty talesmen by regularly sworn deputy sheriffs, and it was unnecessary to swear such deputies again. Following Habel v. State, 28 Texas Crim. App., 588. 11. —Same—Charge of Court—Words and Phrases—Sufficiency of Evidence. Where defendant’s complaints to the charge of the court of various words and phrases therein contained were more than ordinarily hypercritical, and the said charge submitted every issue in a proper manner including his theory of defense, there was no error; the evidence being sufficient to sustain a conviction of murder assessing the death penalty. 12. —Same—Charge of Court—Requested Charges. Where, upon, trial of murder, the court covered every ground where defendant requested special charges by his main charge, so far as any of such special charges were correct, and only refused such which were not raised by the evidence, there was no reversible error. 13. —Same—Misconduct of Jury. Where, upon trial of murder, defendant’s motion for new trial claimed misconduct of the jury in discussing a certain case not before them after their retirement and while they were considering the case, but it was shown that such misconduct or any other did not occur, there was no error. 14. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction assessing the death penalty, the defendant’s guilt was shown beyond a shadow of a doubt under a proper charge of the court, there was no reversible error. [Rehearing denied June 4, 1913.—Pending on writ of error in Supreme Court, United States.-—-Reporter.]
70 Tex. Crim. 156Pullen v. State (1913)
The following statement by the Assistant Attorney-General is substantially correct: The undisputed evidence shows that the store was entered by someone at 3:20 a. m. on the 11th day of July, 1912; that at the time the party entered the store, one J. W. Cornett, a guard, was concealed therein; that he fired upon the intruder three times.
70 Tex. Crim. 161Ex Parte Hogg (1913)
1.—City Charter and Ordinance—Peddler—Farmers. A peddler or hawker is a small retail dealer who carries his merchandise with him, traveling from place to place or from house to house exposing his or his principal’s goods for sale and selling them. It is immaterial that the goods are bartered instead of sold; that the sale is a conditional one or that it is on the installment plan. Persons who raise or produce .what they sell, such as farmers and butchers, are not peddlers. 2. —Same—Distinct Business—Peddling—Producer. The business of peddling is held to be a separate and distinct thing from where the manufacturer or producer himself sells his own articles and products. Following Ex parte Bradshaw, 70 Texas Crim. Rep., 166. 3. —Same—Police Power—Streets, Alleys and Public Grounds. Where a city under the general law had power to pass all ordinances, rules and police regulations not contrary to the Constitution, etc., and had exclusive control and power over the streets, alleys, and public grounds, etc., of the city; to control and regulate market places and privileges, etc, and to license, tax, regulate or suppress and prevent hawkers and peddlers, etc., and thereunder passed an ordinance making it unlawful for any person to peddle any kind of merchandise, etc., on the public square or any street within the corporate limits of said city, the same was a valid ordinance. Davidson, Presiding Judge, dissenting. 4. —Same—Peddlers—Police Regulation. Where a city under the general laws had power and authority to prohibit peddlers from using the streets of said city, and passed an ordinance thereunder prohibiting such peddling, the question as to whether the city would prohibit peddling in all of its treets, alleys, and public squares was a question of policy to be decided and determined by the municipality, and the ordinance was not void or contrary to the Constitution, or discriminatory or in derogation of the common rights given to all men. Following Wade v. Nunnelly, 19 Texas Civ. App., 256; Ex parte Henson, 49 Texas Crim. Rep. 177. Davidson, Presiding Judge, dissenting. 5. —Same—Class Legislation—Constitutional Law. A city ordinance under the general laws of the State preventing peddling on the streets, etc., of said city is not class legislation, as a peddler is in a separate class from other merchants or persons selling their own produce, and there is no law authorizing peddlers to make marts of the public streets for the sale of their merchandise. Davidson, Presiding Judge, dissenting. [Rehearing denied May 14, 1913.—Reporter.]
70 Tex. Crim. 166Ex Parte Bradshaw (1913)
1. —City Charter and Ordinance—Peddler—Constitutional Law—Class Legislation. Where a city, under a special charter, was authorized to control the streets, etc., and to prevent peddlers and hawkers from carrying on their business on said streets, etc., and thereunder enacted an ordinance making it unlawful for anyone to use said streets and alleys embraced within the fire limits of said city for the purpose of selling merchandise o.r peddling goods, etc., and provided therein that said ordinance should not apply to any person who himself offered for sale any produce raised or grown upon the.property owned or rented by him or under his control, the same is not invalid on the ground that it is class legislation. Following Henson v. State, 49 Texas Crim. Rep., 177, and other cases. Davidson, Presiding Judge, dissenting. 2. —Same—Constitutional Law—Not Class Legislation—Equal Rights. A city ordinance which prohibits peddlers from selling on the streets of the city or peddling goods thereon, and authorizes other persons to sell on its streets within its fire limits any products raised or grown upon their property, rented by them' or under their control, is not violative of section 3, article 1, Constitution of Texas, providing that all free men have equal fights, etc. Davidson, Presiding Judge, dissenting. 3. —Same—Streets—Markets—Public Places—Vested Rights—Classification—Peddling. Persons have no vested right to make marts of the streets, alleys, and other public places in any incorporated town, and the Legislature, as well as municipal corporations, where authorized by their charter, may classify persons according to their business and may apply different rules to those which belong to different classes. Following Green v. State, 49 Texas Crim. Rep., 380; Wade v. Nunnelly, 46 S. W. Rep., 668, and other cases. 4. —Same—Classification—Discrimination—Judicial Construction. Where city ordinances have been held invalid and violative of section 3, article 1, Constitution of Texas, it was because they excepted from the operation of the Act other persons .within that class, nevertheless, the Legislature or municipal corporations, when authorized by their charters, have the right and power to make classes which are founded upon some just basis, and tax, regulate or prohibit one class and not the other. Distinguishing Ex parte Jones, 38 Texas Crim. Rep., 482, and other cases. Davidson, Presiding Judge, dissenting. 5. —Same—Case Stated—Reasonable Classification. Where, by special charter, a city was authorized to pass ordinances regulating the use and control of the streets and to regulate and prevent the vending of merchandise on the said streets, etc., and thereunder passed an ordinance prohibiting vending and peddling 'of goods, wares, and merchandise on said streets within the fire limits, and exempted persons who offered for sale their own products, etc., and the relator in violation of said ordinance peddled apples upon such streets and public places within the fire limits, which he had not grown himself. Held, that such classification was valid and reasonable, and relator was remanded to custody. Davidson, Presiding Judge, dissenting. 6. —Same—Public Square—City—County. Where relator was arrested for violating the city ordinance by peddling apples on the public streets of the city, and contended that he had permission of the county authorities to peddle on the public square around the courthouse, but it was shown that the said public streets and public square were used and controlled by said city, his contention that the fee and title of the public square was in the county was no defense. 7. —Same—Stating Pacts in Opinion—Peddler. Where the relator claimed, in his motion for rehearing, that this court had misquoted the testimony in deciding that relator was a peddler, but the statement of facts in the record clearly bore out the court in its conclusion, there was no error.
70 Tex. Crim. 183Luttrell v. State (1913)
The opinion states the case.
70 Tex. Crim. 197Poulter v. State (1913)
The opinion states the case.
70 Tex. Crim. 205Maldonado v. State (1913)
The opinion states the case.
70 Tex. Crim. 209Sanders v. State (1913)
The opinion states the case.
70 Tex. Crim. 211Wrba v. State (1913)
1.—Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no error. Z.—Same—Evidence—Other Transactions. Upon trial of a violation of the local option law, there was no error in admitting testimony that defendant kept alcohol in his drug store, it being charged that defendant had sold alcohol. Following Wagner v. State, 53 Texas Crim. Rep., 306, and other cases. 3.—Same—Argument of Counsel. In the absence of bills of exception to the argument of counsel, the matter cannot be considered on appeal; besides, the argument of counsel was proper.
70 Tex. Crim. 212Ex Parte Yoshida (1913)
From Dallas County. Original habeas corpus proceeding asking release from a writ adjudging relator guilty of contempt of court The opinion states the case.
70 Tex. Crim. 214Holmes v. State (1913)
The opinion states the case.
70 Tex. Crim. 222Irving v. State (1913)
The opinion states the case.
70 Tex. Crim. 225Asbeck v. State (1913)
1. —Murder—Jury- and Jury Law—Bill of Exceptions. In the absence of a bill of exceptions, complaints relating to the selection of jurors cannot be considered on appeal. 2. —Same—Evidence—Declarations of Defendant—Motive. Where, upon trial of murder, it was shown that defendant, several months before the homicide, made threatening declarations against the deceased, there was no error in admitting same in evidence. 3. —Same—Evidence—Letter—Secondary Evidence. Where, upon trial of murder, it was shown that defendant had written a letter or note addressed to his sister, a few moments before the homicide, in which he threatened to kill his wife and himself and which note had been destroyed, there was no error in admitting secondary evidence as to its contents. 4. —Same—Evidence—Declarations of Defendant. Where, upon trial of murder, the evidence tended to show that the killing was premeditated, and that defendant expected to escape by the use of muriatic acid to keep bloodhounds from following his trail, there was no error in admitting in evidence defendant’s declarations made sometime before the homicide to the effect that the use of muriatic acid would prevent dogs from trailing anyone. 5. —Same—Credibility of Witness—Evidence. Upon trial of murder, where a witness for the defendant had testified to material facts for the defense, there was no error in admitting evidence that said witness was then under indictment for seduction in which defendant was a witness for said defendant’s witness. 6. —Same—Sufficiency of the Evidence—Death Penalty. Where, upon trial of murder, the evidence showed a premeditated killing, a conviction of murder in the first degree with the, death penalty was sustained. 7. —Same—Special Venire—Bill of Exceptions—Eecital in Judgment. A mere judgment overruling the motion to quash the special venire is not Sufficient to bring the matter in review on 'appeal, in the absence of a bill of exception; besides, there was no error in overruling the motion to quash the venire. Following Nelson v. State, 1 Texas Grim. App., 41, and other cases.
70 Tex. Crim. 229Creech v. State (1913)
1. —Occupation—Selling Intoxicating Liquors—Local Option—Indictment. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient. Following Mizell v. State, 59 Texas Crim. Rep., 226. 2. —Same—Former Jeopardy—Disorderly House—Distinct Offense. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the defendant pleaded former jeopardy, and it appeared from his said plea that he was charged in said former trial and conviction with an entirely separate and distinct offense, towit, that of keeping a disorderly house for the sale of malt liquors, etc., without license, at an entirely separate and distinct time, there was no error in the court’s failure to submit said plea. 3. —Same—Rule Stated—Former Jeopardy—Same Offense. Under Section 14, Article 1 of the Constitution, the term same offense as used therein does not mean an offense of the same nature or of similarity, but the identical offense. Following Muckenfuss v. State, 55 Texas Crim. Rep., 216, and other eases. 4. —Same—Flea of Former Conviction—Fleading. The plea of former conviction, to be sustained, must allege the proceedings which resulted in such former conviction, including the pleadings and evidence, judgment and verdict, and the identity of the person convicted. Following Williams v. State, 13 Texas Crim. App., 285, and other cases. 5. —Same—What Fro of Necessary—Acts Must Be Same. To sustain the plea of former conviction, the defendant must prove that the acts which constitute the offense for which he was formerly convicted are the very acts which constitute the offense for which he is on trial. Following Kain v. State, 16 Texas Crim. App., 282, and other cases. 6. —Same—Carving—Time of Offense. When the time is carved, where the offense is continuous, the proof must be confined to the acts done within the time alleged, whether the plea be of former conviction or acquittal, and a plea of former conviction will not avail where such time has not been utilized by a former conviction. Following Fleming v. State, 28 Texas Crim. App., 234. 7. —Same—Evidence—Cross Examination. Upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in admitting testimony as to the number of times the witness bought liquor from defendant and drank the same with other parties, and refusing defendant’s counsel to ask the witness on cross-examination, as to how old these parties were and where they came from. 8. —Same—Setting Case for Trial—Practice in District Court—Discretion of Court. Where, upon appeal from a conviction of felony, the record did not show that the court abused his discretion in setting the case for trial and forcing defendant to trial, there was no error; appellant accepting the bills of exceptions as qualified. 9. —Same—Attorney and Client—Consultation. Where, upon appeal from a conviction of felony, appellant complained that the court below did not permit his counsel sufficient time to consult his client before putting him on the witness stand, and fining the attorney in connection therewith, but the bill of exceptions as qualified by the court, did not show any action on the part of the court upon which defendant’s counsel could complain, there was no error. 10. —Same—Argument of Counsel—Limiting Time—Discretion of Court. In the absence of abuse of discretion to such an extent as to show, material injury to the defendant, a complaint that the court below limited the argument of the case to one hour to the side is not cause for reversal. 11. —Same—Evidence—Time of Different Sales. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, it was not necessary to confine the evidence to specific sales alleged in the indictment; besides, many sales, as alleged, were proven. Following Clay v. State, 55 Texas Crim. Rep., 402; 144 S. W. Rep., 280, and other eases. 13.—Same—Argument of Counsel. Where, upon trial of unlawfully selling intoxicating liquors in local option territory, State’s counsel remarked in his argument to the jury that the defendant had walked up and down the street looking for men to sell whiskey to, etc., to which the court sustained objections and instructed the jury in a written charge not to consider the same, there was no reversible error.' Following Tweedle v. State, 29 Texas Crim. App., 586, and other cases. 13. —Same—Occupation—Definition—Charge of Court. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court’s definition of • the terms “occupation” and “business” in his charge to the jury conformed to approved precedent, there was no error. Following Fitch v. State, 58 Texas Crim. Rep., 366, and other cases. 14. —Same—Occupation—Requested Charge. A requested charge instructing the jury that the terms “occupation and business,” in a prosecution for pursuing the occupation of selling intoxicating liquors in local option territory, meant vocation, calling, trade, the business which one principally engages in to procure a living or obtain wealth, was correctly refused. 15. —Same—Accomplice—Charge of Court. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court submitted the question of accomplice concerning the State’s witnesses to the jury under a proper charge, there was no error in not charging the jury as a matter of law that said witnesses were accomplices. 16. —Same—Accomplice—Purchaser of Intoxicating Liquors. One who merely purchases intoxicating liquor from one unlawfully selling it, and connected with it in no other way than as a purchaser is not an accomplice, and the court correctly charged the jury to this effect. Following Fox v. State, 53 Texas Crim. Rep., 150, and other cases. 17. —Same—Accomplice—Question of Fact. Ordinarily where there is no doubt and the proof is certain that any witness is an accomplice, the court should so tell the jury; but even where that is the ease, it is sufficient to submit the question to the jury. Following McGrew v. State, 31 Texas Crim. Rep., 336, and other cases. 18. —Same—Charge of Court—Requested Charge—Practice on Appeal. It is a well established rule that when the lower court has charged the law applicable to the ease in distinct and comprehensive terms, this court will not reverse because it might have been fuller and more pertinent, when appellant requests no special charge. Following Dozier v. State, 62 Texas Crim. Rep., 258. 19. —Same—Accomplice—Charge of Court. Where, upon trial of felony, the evidence, at most only tended to show that certain State’s witnesses' were accomplices, the court correctly submitted that question to the jury. ¡¡Rehearing denied June 4, 1913.—Reporter.]
70 Tex. Crim. 240Hall v. State (1913)
"1.—Carrying Pistol—Arrest of Judgment—Information—Date of Offense. -- Where the record showed on appeal that the information was filed on the -.same day on which the complaint was filed, although it bore no file marks and was then filed nunc pro tune, there was no error; besides, this matter could not be reached by motion in arrest of judgment, but only upon motion to quash. 2. —Same—Sufficiency of the Evidence—Statement of Facts—Filing. Where, upon an appeal from a conviction of unlawfully carrying a pistol, it appeared from the record that the purported statement of facts was filed too late, a complaint to the sufficiency of the evidence could not be considered. 3. —Same—Statement of Facts—Practice on Appeal. Where it did not appear from the record why the alleged statement of facts was not filed in accordance with the statute, the same can not be considered, and the information being sufficient, the conviction must be affirmed.
70 Tex. Crim. 241Smith v. State (1913)
The opinion states the case.
70 Tex. Crim. 243Francis v. State (1913)
The opinion states the case.
70 Tex. Crim. 245Monroe v. State (1913)
1.—Occupation—Selling Intoxicating Liquors—Local Option—Indictment —Election. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient and it was not necessary to allege that the election was valid and legal. 2,.—Same—Election—Contest—Presumption. 'Where no contest of election is filed under Act of Thirtieth Legislature, Chapter 8, p. 447, the presumption is that said local option election was a valid one. 3. —Same—Suspended Sentence—Bepeal—Amelioration. The suspended sentence law, passed by the Thirty-third Legislature, repeals no law of this State declaring what are penal offenses, and had no application to a prosecution then pending for pursuing the occupation of selling intoxicating liquors in local option territory, nor did it ameliorate the penalty in such prosecutions. 4. —Same—Suspended Sentence Act—Prerequisites Necessary. The suspended sentence Act can only be invoked on condition that the person on trial, before the trial begins and the verdict of the jury is rendered, shall request in writing that his reputation be made an issue in the trial, before he may receive any benefits from the ameliorating statutes, and was not intended to apply to trials had or pending before the passage of the law. Following Walker v. State, 7 Texas Crim. App., 245. 5. —Same—Judgment and Sentence—Definition of Offense. Upon conviction for pursuing the occupation of selling intoxicating liquors in local option territory, the judgment and sentence of the court need not define the offense as specifically and definitely as the indictment or bail bond, and need only refer in general terms to the offense charged in the indictment, as all of the pleadings, charge of court, the verdict, etc., are a part of the record in the case. [Rehearing denied April 35, 1913.—Reporter.]
70 Tex. Crim. 250Anderson v. State (1913)
The opinion states the case.
70 Tex. Crim. 253Davis v. State (1913)
1.—Forgery—Indictment—Pecuniary Obligation. Where the instrument on its face imports a pecuniary obligation, it was not necessary to allege in the indictment that the instrument, if genuine, would have created, increased, diminished or discharged or defeated any pecuniary obligation. Following Horton v. State, 32 Texas, 80, and other eases. 8.—Same—Indictment—Firm—Payee. It was not necessary in the indictment for forgery to allege that the payee in the alleged forged check was a firm. 3. —Same—Indictment—Injury. In forgery, it is not necessary to allege the name of the person to be defrauded, or that any particular person was injured thereby. Following Labaitte v. State, 6 Texas Crim. App., 257, and other eases. 4. —Same—Indictment—Explanatory Averments—Words and Phrases. In an indictment for forgery, it was not necessary by explanatory averments to allege what was meant by “no” just before the 'word “dollars” in the check, and the allegation “for goods” after the amount simply evidenced the fact that the alleged check had been given for goods purchased. Following Forcy v. State, 60 Texas Crim. Rep., 206. 5. —Same—Indictment—Incorporation. Upon trial of forgery, it was not necessary to allege in the indictment that the bank in question was incorporated or unincorporated, the bank not being the' injured party. Following Reeseman v. State, 59 Texas Crim. Rep., 430, and other cases. 6. —Same—Evidence—Check. Upon trial of forgery, there was no error in admitting in evidence the check described in the' indictment. 7. —Same—Hearsay Evidence. Upon trial of forgery, there was no error in rejecting testimony what one ■witness had told the other as to defendant’s authority to sign the name to the check. 8. —Same—Charge of Court—Defensive Theory. Where, upon trial of forgery, the court’s charge presented defendant’s theory of defense in an affirmative way, there was no error. Following Hatch v. State, 6 Texas Crim. App., 384, and other cases. 9. —Same—Bills of Exception. Where the bills of exception referred to in the motion for new trial were not contained in the record, they could not be considered on appeal.
70 Tex. Crim. 256Green v. State (1913)
The opinion states the case.
70 Tex. Crim. 258Rhea v. State (1913)
Quarantine—Cattle—Contagious Disease—Information—Dive Stock Commission. Where the information alleged a violation of the quarantine laws affecting contagious diseases of cattle in violating the orders of the inspector of the Live Stock Commission, and the information failed to allege that the Live Stock Sanitary Commission had passed any regulation in regard thereto, but simply alleged that defendant’s act was done in violation of the order of the inspector, a verdict based on said count of the information can not be sustained, as said count is fatally defective.
70 Tex. Crim. 260Huddleston v. State (1913)
1. —Manslaughter—Indictment—Description of Instrument. Where the indictment charged the instrument used with the words, “some sharp instrument” without alleging that said instrument used was not known to the grand jury and a better description, could not be obtained, etc., the same was insufficient. Following Jarasco v. State, 6 Texas Crim. App., 238, and other eases. 2. —Same—Insufficiency of the Evidence. Where the indictment charged the defendant with stabbing the deceased with some sharp instrument without a further description, and the evidence failed to show that he did use a knife or any sharp instrument, the jury could not convict defendant on said count of the indictment. 3. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the evidence raised the issue of circumstantial evidence, a failure -of the court to charge thereon.was reversible error. 4. —Same—Instrument Used—Deadly Weapon—Intent to Kill. Where, upon trial of murder," it was not shown by the evidence whether the instrument used was a deadly weapon or one likely to produce death, and did not make evident defendant’s intention to kill, the court should have submitted article 1147, Revised Penal Code. 5. —Same—Aggravated Assault—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the evidence raised the issue of aggravated assault, the court should have submitted the same, in a proper charge to the jury. 6. —Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify. Where, upon trial of murder, the jury in their retirement alluded to defendant’s failure to testify, the same was reversible error. 7.—Same—Argument of Counsel. Counsel for the State are warned in the opinion of the court not to allude to defendant’s failure to testify.
70 Tex. Crim. 265Cowser v. State (1913)
The opinion states the case.
70 Tex. Crim. 271Carden v. State (1913)
Burglary—Statement of Facts—Bills of Exception. Where more than ninety days had .elapsed since • sentence was pronounced, during a term of the District Court which continued in session for more than eight weeks, and no statement of facts or hills of exception were filed, and the indictment was sufficient, it must be presumed that the charge of the court submitted all the law arising from the evidence.
70 Tex. Crim. 272Alsbrook v. State (1913)
The opinion states the case.
70 Tex. Crim. 273Drysdale v. State (1913)
The opinion states the case.
70 Tex. Crim. 275Williams v. State (1913)
1.—Burglary—Insufficiency of the Evidence. Where, upon trial of burglary, the evidence failed to show a breaking of the alleged burglarized house, and the evidence as to the- possession of the alleged stolen property and the offense generally was entirely circumstantial, the conviction could not be sustained. 3.—Same—Buie Stated—Breaking—Becent Possession. While the possession of property recently taken from a burglarized house, without sufficient explanation, will sustain a conviction, it is, nevertheless, necessary to prove a breaking of the alleged burglarized house in some manner violative of the statute.
70 Tex. Crim. 278Gibbs v. State (1913)
1. —Carrying Pistol—Statement oí Facts—Bills of Exception. Where it was shown on appeal, or rehearing, that the failure to get .the statement of facts filed in time arose from no fault of the attorneys for appellant or for the State, the same will be considered on appeal. 2. —Same—Rented Premises. Where, upon trial of unlawfully carrying a pistol, the evidence tended to show that if defendant carried a pistol, it was on premises which he had rented and which were under his control, he was not guilty of a violation of the law. 3. —Same—Assembly—Distinct Offense. While it is the law that a party can not carry a pistol into an assembly of people, although the premises belong to him, yet where defendant was not charged with such offense and the facts did not show that he carried a pistol where people' had assembled, he could not be convicted on a charge of unlawfully carrying a pistol. 4. —Same—Evidence—Declaration of Third Party. Upon trial of unlawfully carrying a pistol, it was error to admit in evidence the declarations of a third party, with reference to the pistol, which were made when defendant was not present; no conspiracy having been shown. 5. —Same—Continuance—Practice on Appeal. Where the judgment is reversed and the cause remanded on other grounds, the overruling of the motion for continuance need not be considered on appeal.
70 Tex. Crim. 281Ex Parte Burford (1913)
From Reeves County. Original application for writ of habeas corpus asking discharge from further prosecution of incest in three different indictments on the ground of former jeopardy because of a trial on another indictment and an acquittal thereon.
70 Tex. Crim. 284Ex Parte Finney (1913)
Murder—Bail—Evidence. Where, upon appeal from a denial of bail, the evidence sustained the order of the lower court refusing relator hail, there was no error.
70 Tex. Crim. 285White v. State (1913)
The opinion states the case.
70 Tex. Crim. 289Ausbrook v. State (1913)
70 Tex. Crim. 292Jackson v. State (1913)
1. —Assault to Murder—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, the failure of the court to charge on aggravated assault and the question of the insufficiency of the evidence can not be considered on appeal. 2. —Same—Statement of Facts—Want of Diligence—Practice on Appeal. Before a reversal can be demanded for the failure to secure a statement of facts, the inability of the appellant to secure a statement of facts must be shown, and a simple request on his part of the court to compel the stenographer to file such statement of facts is insufficient.
70 Tex. Crim. 297Roberts v. State (1913)
The opinion states the case.
70 Tex. Crim. 307Robertson v. State (1913)
1. —Gaming—Knowingly Permitting Property to be Used Por—Resort to Gamble—Indictment. Under article 559, Penal Code, under which defendant was charged with knowingly permitting property under his control to be used to gamble with cards, etc., in one count, and knowingly permitting said property to be used as a place where people resort to gamble, it was not necessary to allege or prove that such property was kept for the purpose of being used as a gambling house. 2. —Same—Words and Phrases—Kept and Used for Gaming. The words “so used” contained in article 559, Penal Code,, do not relate back to and make it necessary, in order to commit the offense of knowingly permitting the property to be used for gaming, that it shall also be kept as a gambling house; as property used for gaming need not necessarily be kept for that purpose. 3. —Same—Sufficiency of the Evidence—Control. • Where, upon trial of knowingly permitting property under his control to be used to gamble with cards and as a place where people resort to gamble, the evidence sustained the conviction that the defendant was in such control of the property as that he could be convicted of permitting gaming thereon, the conviction was sustained. 4. —Same—Rule Stated—Practice on Appeal. It is not for this court to consider that there was evidence authorizing an acquittal, but simply to determine whether there was sufficient evidence to sustain the conviction. 5. —Same—Control of Premises—Rule Stated. The usual and ordinary signification of the word “control” is the same as the word “manage,” which is to have control over the particular matter, to check, to restrain, to govern with reference thereto, and it is not necessary that the party be the owner, renter or tenant of the house to be in control thereof. Following Davis v. State, 151 S. W. Rep., 313, and other eases. 6. —Same—Case Stated—Control—Sufficiency of- the Evidence. Where, upon trial of knowingly permitting property under defendant’s control to be used for gaming, etc., the evidence showed that defendant had .control of the door on the ground floor of said building and the stairway leading up to the second floor and the room on said floor, through which and from which, the only access to the attic where the gaming occurred was had by a ladder therefrom into the attic, and that defendant knew that persons gathered there for gaming, reaching said attic only and solely through his door as aforesaid and that he himself engaged in said gaming, the conviction was sustained, although defendant did not have said attic leased from the owner. 7. —Same—Statutes Construed—Repeal of Misdemeanor Felony. The contention that because articles 551, 572 and 573, Revised Penal Code, make the same acts misdemeanors punishable by fine only, which articles 558 and 559, of said Code, make felonies, are in conflict and nullify each other, is not well taken, as the latter articles repeal the former and are now in force. 8. —Same—Statutes Construed—Repeal—Legislative Intent. See opinion for a discussion of the different Articles of the Code relating to permitting gaming, holding that the Act of 1907 was intended by the Legislature and had the effect of taking the place of and entirely supplanting article 551, Revised Penal Code, and by implication, if not expressly, clearly repealed it. Overruling Simonds v. State, 56 Texas Crim. Rep., 339. Davidson, Presiding Judge, dissenting. 9. —Same—Repeal by Implication.—Rule Stated. While repeals by implication are not favored, yet, where a new law covers the whole subject matter of an old law and prescribes a penalty different from that provided in the old law, the old law is repealed by implication. Following Fleeks v. State, 47 Texas Crim. Rep., 327. 10. —Same—Revised Code—Codifiers—Statutes Construed. The recopying in the Revised Penal Code of 1911 of said repealed articles 551, 572 and 573 as well as said articles 558, 559, repealing them did not have the effect to invalidate all of said articles both new and old, but the history of this legislation shows clearly the reverse and that the Legislature did not intend to repeal articles 558 and 559, Penal Code, which is the Act of 1907, and is now the law. Davidson, Presiding Judge, dissenting. 11. —Same—Rule Stated—Statutes Construed—Presumption—Codification. Where a statute upon a specific subject has been repealed, not expressly but by implication, by the enactment of a later statute upon the same subject inconsistent with the first, and both laws are subsequently included in a revision or codification, they still have the same relative force and effect as before the codification; that is to say, the earlier remains repealed by the later statute; the presumption being that the repeal of the earlier statute has been overlooked by the codifiers and the Legislature. Following Ex parte Cox, 53 Texas Crim. Rep., 240, and other cases. 12. —Same—Codification—Statutes Construed. This court holds that notwithstanding said repealed articles 551, 572 and 573 are copied in the Revised Penal Code of 1911 by the codifiers, that they were not thereby re-enacted, but inadvertently and by mistake included therein, and that the said articles 558 and 559 of said Code by the Act of 1907 are still the law and in force as contained in said Revised Penal Code. Davidson, Presiding Judge, dissenting.
70 Tex. Crim. 340Wilson v. State (1913)
The opinion states the case.
70 Tex. Crim. 343Jones v. State (1913)
1. —Local Option—Indictment—Date of Election—Jurisdiction. Where the indictment alleged the date of the election and showed that thereafter defendant made a sale of intoxicating liquors, which under the law gave jurisdiction to the county court, there was no error. 2. —Same—Intoxicating Liquors—Beer—Charge of Court. While the court will take judicial knowledge that liquor sold in this Stat^ denominated as beer is an intoxicating liquor, yet when the defendant introduced evidence that the liquor which was in fact sold, while called beer, did not produce intoxication, this issue should have been properly submitted to the jury, and the burden of proof should not have been placed on the defendant, he having requested a special charge presenting this issue. 3. —Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Upon trial of a violation of the local option law, it was improper for the attorney representing the State to make an indirect reference to the failure of the defendant to testify. 4. —Same—-Definition of Intoxicating Liquor—Fermented Liquors—Charge of Court. All fermented liquors are not intoxicating liquors, and while in some cases, it might not be error to instruct the jury that they are, yet where the evidence showed that the alleged beer did not produce intoxication, it was improper to instruct the jury as a matter of law that beer is a fermented liquor and that all fermented liquors are, within the meaning of the local option law, intoxicating.
70 Tex. Crim. 346Clifton v. State (1913)
The opinion states the case.
70 Tex. Crim. 347Johnson v. State (1913)
The opinion states the case.
70 Tex. Crim. 349Burden v. State (1913)
’Appeal from the Criminal District Court of Dallas No. 2. Tried below before the Hon. Barry Miller. Appeal from a conviction of rape; penalty, ten years imprisonment in the penitentiary. The opinion states the case.
70 Tex. Crim. 355Wilson v. State (1913)
1. —Murder—Evidence—Declaration of Defendant. Where, upon trial of murder and a conviction of manslaughter, it was a sharply contested issue whether or not defendant was mistaken in shooting the deceased for his brother, and the State claimed that there was no mistaken identity as to this and attempted to impeach the defendant as to this matter, the defendant should have been permitted to introduce his declarations in evidence in support of his contention that he believed he shot deceased’s brother when he was first told that he shot the deceased and then declared that he thought' it was his brother who had threatened to kill him. 2. —Same—Rule Stated—Explanations—Conduct of Defendant. When a person is first charged with any crime, his acts, words, and conduct are admissible in evidence, either when they are incriminating in behalf of the State, or when they are explanatory, in his own behalf. 3. —Same—Evidence—Self-serving Declarations. Where defendant contended that he shot the deceased by mistake thinking that it was his brother, he could not introduce in evidence his declarations as ' to this matter after he had been informed that he killed the deceased and not his brother, as this was self-serving testimony. 4. —Same—Evidence—General Reputation. Where defendant claimed that he thought at the time of killing deceased that it was his brother who had threatened defendant, there was no error in permitting the State to introduce testimony that said brother was a peaceable, law-abiding citizen. 5. —Same—General Reputation—Evidence. Where there was evidence that the defendant killed deceased believing that it was the brother of deceased who had made threats against the life of defendant, it was error to permit the State to prove the general reputation of the deceased as. a peaceable, law-abiding citizen, as his reputation was not attacked by the defendant. 6. —Same—Charge of Court—Provocation. Where defendant killed deceased contending that he acted under mistake m thinking that he was shooting his brother who had threatened defendant’s life and insulted his daughter it was error in the court’s charge to instruct the jury that a provocation given by some other persons than the party killed was not adequate cause in manslaughter. 7.—Same—Self-defense—Charge of Court—Mistake. Where defendant claimed a mistake in killing deceased and that he intended to shoot the brother of deceased in self-defense, the court should have informed the jury that if this was true, the defendant had the same right to act in self-defense as he would have had if it had in fact been the brother of the deceased whom he believed was attacking him, and a charge limiting these acts to the deceased was error.
70 Tex. Crim. 361Burnaman v. State (1913)
1. —Murder—Evidence—Bias of Witness—Original Testimony—Predicate —Charge of Court. Where, upon trial of murder, defendant’s brother had given material testimony for the defense, with reference to res gestae statements and conduct of defendant made in the presence of said witness and the State’s witness who had been before introduced by the State as to such res gestae, there was no error in permitting the State to reintroduce the said witness to show that said defendant’s witness undertook to persuade said State’s witness to change or manufacture testimony, and this without laying a predicate therefor, as original evidence to show the bias of said defendant’s witness, and without showing that this occurred by defendant’s authority; and there was no error in the failure of the court to limit said testimony to the credibility of defendant’s witness. Davidson, Presiding Judge, dissenting. 2. —Same—Evidence—Original Issue—Collateral Matter—Bias of Witness. Upon trial of murder, there was no error in permitting the State to show, without laying a predicate therefor, by a State’s witness who was present with defendant’s brother and heard the res gestae statements and saw the res gestae acts of the defendant, that said brother approached said State’s witness and undertook to have him change or compromise this testimony on said res gestae matter, as this was not collateral to the main issue, but was original evidence and was admissible to show the bias of defendant’s witness, although defendant was not responsible for the acts of his said brother; besides, the objection thereto was withdrawn. Davidson, Presiding Judge, dissenting. 3. —Same—Bias of Witness—Rule Stated—Credibility of Witness. Motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matter, and a party may prove declarations of the witness which tend to show his bias, interest, prejudice, . or any other mental status which fairly construed, might tend to affect his credibility. Following Pope v. State, 65 Texas Crim. Rep., 51. And this may be. shown by cross-examination of the witness, or other witnesses may be called who can swear to the facts showing it, without laying a predicate for such testimony. Following Cockrell v. State, 60 Texas Crim. Rep., 124, and other cases. Davidson, Presiding Judge, dissenting. 4. —Same—Distinction—Rule Stated—Predicate Not Necessary. If it had been attempted to impeach the brother of defendant by showing by the State’s witness that he had made statements theretofore in contradiction of his testimony on the trial, a predicate would have been required, but where said brother had given material testimony for the defense, the State could show by its witness the interest and bias of the defendant’s said witness in favor of the defendant; and this without showing that the defendant authorized the acts of his brother in undertaking to change the testimony of said State’s witness, or laying a predicate. 5. —Same—Limiting Testimony—Charge of Court. It is elementary that it is improper for the court in his charge to limit the effect of evidence which shows the motive or interest of either the defendant or any material witness for him, as such would be a charge on the weight of the evidence; and there was no error, especially, where defendant requested no charge, but raised the question in the motion for new trial, and withdrew his objection to said testimony when it was offered. 6. —Same—Limiting Testimony—Rule Stated. Testimony does not have to be limited where it can only be used by the jury for the purpose for which it was introduced. Following Sue v. State, 52 Texas Crim. Rep., 122. 7. —Same—Self-defense—Charge of Court—Harmless Error. Where, upon trial of murder and a conviction of manslaughter, it appeared from the evidence that when defendant continued to shoot, it no longer reasonably appeared to him that he was in any danger, there was no error in the court’s charge on self-defense to instruct the jury, that if after the first shot fired by the defendant in self-defense it did not reasonably appear to him that he was' in further danger, but he, nevertheless, continued to fire other shots into the body of the deceased hastening the death of the latter, then such later shots would not be in self-defense, but the offense in such case would be of no higher grade than manslaughter; as this, even if restricting defendant’s right of self-defense, could not have misled the jury. Davidson, Presiding Judge, dissenting. 8. —Same—Sufficiency of the Evidence—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. 9. —Same—Evidence—Tampering with Witness—Limiting Testimony. Where, upon trial of murder, the State was permitted to introduce testimony for the purpose of showing the bias and interest of an important witness for the defense, and not for the purpose of showing that said latter witness was undertaking to tamper with the said State’s witness and thus to corruptly influence him to testify falsely in behalf of defendant, there was no reversible error, although no predicate had been laid for such testimony, and it was not shown that defendant in any way authorized such tampering with said witness, and there was no error in the court’s failure to limit said testimony. Following Earles v. State, 64 Texas Crim. Rep., 537, and other eases. Davidson, Presiding Judge, dissenting. [Behearing denied June 25, 1913.—Beporter.]
70 Tex. Crim. 389Shornweber v. State (1913)
1. —Burglary—Argument of Counsel. In the absence of a bill of exceptions, an objection to the argument of counsel can not be considered. 2. —Same—¡Private ¡Residence—Indictment. Where the indictment charged burglary in two counts in the ordinary form alleging burglary at night-time and in daytime, and the evidence showed that the alleged injured party did not sleep or live in that part of the building which was in fact burglarized, but slept in another part of it on a little gallery between the lower floor and the roof elevated about ten feet from the floor, this would not constitute the store which was burglarized, a private residence within the meaning of the statute. Following Alinis v. State, 63 Texas Crim. Rep., 272. 3. —Same—Practice on Appeal. In the absence of a bill of exceptions or motion for new trial, matters suggested for the first time in the brief can not be reviewed on appeal. 4. —Same—Stating Facts in Opinion—Practice on Appeal. Where this court found from the record that the indictment did not allege that the house burglarized was a private residence and the record supported this finding, this will control the statement in attorney’s briefs and motion for rehearing. 5. —Same—Private Residence. Where the indictment did not allege that the house burglarized was a private residence, and the evidence showed that it was a store and that the party injured slept in another portion of the building used as a sleeping gallery and was not a part of the store, the contention that the evidence showed that the house burglarized was a private residence is untenable and there was no error. Following James v. State, 63 Texas Crim. Rep., 559, and other cases. 6. —Same—Separate Offense. Ordinary burglary is a different offense from that of breaking into a private residence and requires different allegations and different proof, but this issue is not raised in the instant case. 7. —Same—Breaking—Daytime Burglary—Charge of Court. Where the court did not submit directly a daytime burglary, but charged the jury that if defendant broke and entered the alleged house by force, he would be guilty, which charge was supported by the indictment and the evidence, which did. not support a- daytime breaking, there was no error in the court’s failure in submitting a daytime burglary.
70 Tex. Crim. 393Ward v. State (1913)
1. —Murder—Evidence—Res Gestae—Declarations of Deceased. Where, upon trial of murder, the evidence showed that after deceased was: cut with a knife by defendant, he turned and rode home and in ten or fifteen minutes thereafter told his wife that he was suffering, and that it appeared to her that he was in a dying condition; that they had to help him from his horse, etc., there was no error in admitting his statements that the defendant cut him with a knife, and other acts and words attending the homicide. 2. —Same—Rule Stated—Res Gestae Statements. Res gestae statements of the deceased voluntarily and continuously made at the time of the transaction, or so near to it as to reasonably preclude the idea of design, are to be regarded as contemporaneous, and are admissible in evidence. 3. —Same—Buie Stated—Bes Gestae Statements. Res gestae statements need not be coincident as to time if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. Following Rainer v. State, 67 Texas Crim. Rep., 87. 4. —Same—Evidence—Motive. Where, upon trial of murder, it developed that the killing took place over a difference claimed to be due deceased by defendant, and defendant attempted to prove that said debt had been paid, it was not improper to permit the State to show what the witness had heard the defendant say about the matter. 5. —Same—Evidence—Intoxicants—Condition of Deceased. Where, upon trial of murder, it was shown that the only intoxicants in possession of deceased at the time of the homicide were received from the express office, there was no error in excluding testimony that some time during the summer preceding the difficulty the witness had seen "deceased intoxicated, etc., there being no connection shown. 6. —Same—Dying Declarations in Evidence. Upon trial of murder, it was shown that the deceased made the statement which was offered as his dying declaration without any interruption and not in answer to questions propounded calculated to lead the deceased to make a particular statement, there was no error, "the court submitting a proper charge thereon. Following Taylor v. State, 38 Texas Crim. Rep., 552, and other cases. 7. —Same—Charge of Court—Dying Declarations—Words and Phrases. Where, upon trial of murder, the evidence excluded the idea that deceased at the time he made his dying declaration had any hope of recovery, there was no error in the court’s charge in omitting that part of the statute which requires that the deceased had no hope of recovery, the charge being otherwise sufficient and no'injury resulting to defendant. Following Taylor v. State, 38 Texas Crim. Rep., 552. 8. —Same—Witness "Under Buie—Discretion of Court. Upon trial of murder, where "defendant requested that the brother of the deceased be placed under the rule with the other witnesses, and the State stated that it needed and desired his assistance in the trial of the case and that he be excused from the rule, there was no error in the exercise of the court’s discretion, no abuse thereof having been shown, the witness having been instructed not to communicate with any person about the case. 9. -—Same—Husband and Wife—Cross-examination. Where defendant’s wife was placed upon the witness stand and testified without objection as to defendant’s acts after the homicide; that neither he nor she went to the house of the deceased after he was cut, etc., and the only objection was to the facts brought out that the witness did not attend the funeral of deceased, on the ground that this was irrelevant, but the wife was not compelled to testify as to new matters, and against the defendant, and besides, the same testimony was introduced by other witnesses; it being disclosed that the deceased was her son-in-law and that friendly feeling should have existed, there was no error in admitting this evidence to show the bias of the witness. 10. —Same—Buie Stated—Bias of Witness—Practice. Where, upon trial of murder, the State was permitted to introduce testimony to show the bias of defendant’s wife as a witness without objection, complaints to said testimony in the motion for new trial came too late. Qualifying Brock v. State, 44 Texas Crim. Rep., 335. 11.—Same—Rule Stated—Objections to Testimony. A party can not be heard to complain of illegal and incompetent evidence to which he did not object and except to at the time of its introduction, and which he made no motion to exclude during the trial of the case. Following Wright v. State, 35 Texas Crim. Rep., 367, and other cases. 12. —Same—Evidence—Instrument Used. Where a knife was exhibited to the defendant while on the witness stand which he stated was the knife with which he cut deceased, and the State thereupon showed that the defendant had another knife which he had sharpened shortly before the homicide, and it appeared from the character of the wound that whatever knife defendant used was a deadly weapon in the manner in which it was used by defendant, there was no error in admitting this testimony, and the court’s failure to charge on aggravated or simple assault under articles 1147 and 1150, Revised Penal Code; however, the court .charged on manslaughter, and there was no error. 13. —Same—Evidence—Means Used—Deadly Weapons. Where, upon trial of murder the evidence showed that the deceased attempted to use a large sized pocket-knife, there was no error in refusing expert testimony on the basis of hypothetical questions that the same was a deadly weapon, as this was a matter of common knowledge. 14.—Same—Evidence—Instrument Used—Deadly Weapon—Charge of ' Court. Where, upon trial of murder, tlhe defense introduced testimony that deceased attempted to use a large sized pocket-knife and threatened to kill defendant and then reached in his pocket as if attempting to draw a pistol and struck at defendant twice with a knife, and the court, in his charge, instructed the jury that if deceased did these acts or in case of á reasonable doubt to acquit defendant, this was a sufficient submission of the law of the presumption that the deceased intended to kill or to inflict serious injury, and there was no reversible error in the court’s failure to admit answers to hypothetical questions as to the character of the knife, or his failure to charge the exact words of the statute on the presumption of the intent of deceased. 15. —Same—Charge of Court—Self-defense. Where, upon trial of murder, the defense introduced testimony that the deceased at the time of the homicide was attempting to draw a pistol or knife to kill the defendant, and the court instructed the jury that in such case the defendant had a right to cut and stab the deceased in self-defense, and otherwise submitted a proper charge on self-defense, there was no error. 16. —Same—Serious Bodily Injury—Great Bodily Injury—Charge of Court. Where the court in defining, self-defense used the words “great bodily injury,” instead of “serious bodily injury,” yet when he came to apply the law to the facts, he used the words “serious bodily injury,” there was no error, besides, the words “great” and “serious” in substance mean the same thing. 17. —Same—Charge of Court—Self-defense—Force. Where, upon trial of murder, the court, in his charge on self-defense, in his general definition, instructed the jury that the defendant was justified in using all necessary and reasonable force to defend himself, but in applying the law to the facts omitted the use of these words as to what force was necessary, and correctly applied the law to the facts, there was no reversible error, although said words should not have been used in the instant ease, or in any case where the evidence does not raise the issue. Following Moss v. State, 60 Texas Crim. Rep., 268. Distinguishing Castro v. State, 66 Texas Crim. Rep., 282; Antu v. State, 66 Texas Crim. Rep., 329; Mayhew v. State, 65 Texas Crim. Rep., 290. 18. —Same—Buie Stated—More Force Than Necessary. Where the court, in applying the law to the case, correctly does so, some error in the definition of a general principle which could not have misled the jury is no ground for reversal, and this rule will be adhered to, although trial courts are warned not to use the words of more force than necessary in their charge on self-defense unless it is an issue in the case. 19. —Same—Evidence—General Reputation. Where, upon trial of murder, the court admitted testimony that defendant’s general reputation was that of a peaceable law-abiding citizen and good in the community where he lived, there was no error in excluding testimony of the individual opinion of a witness. 20. —Same—Jury and Jury Law—Special Venire. Where defendant’s motion to quash the special venire was overruled for good reasons, and besides, the record showed that the defendant secured a jury satisfactory to him without exhausting his challenges, there was no error. 21. —Same—Continuance—Bill of Exceptions. In the absence of a bill of exception, the overruling of a motion for continuance can not be reviewed. 22. —Same—Evidence—Expert Testimony—Cause of Death. Where defendant contended that the wounds of the deceased had not been properly treated and that deceased had not died therefrom, it was proper to permit the State to show by the examining physicians the depth, course, and character of the wound, although the defense tendered no witness, but only insisted on introducing medical books and propounding questions thereon. 23. —Same—Evidence—Dying Declarations—Predicate. Where defendant contested the admissibility of dying declarations, there was no error in permitting the State to prove that the deceased at the time of making them was sane, conscious of approaching death and had no hope of recovery. 24. —Same—Evidence—Clothing of Deceased. Upon trial of murder, there was no error in admitting in evidence the clothing of the deceased to show the location, nature and character of the wound which were questioned by the defendant. 25. —Same—Evidence—Acts of Deceased. Where defendant introduced testimony that deceased offered to buy a pistol a few days before the homicide, there was no error in permitting the State to show that this'was before there was any enmity between the parties. .26.—Same—Condition of Deceased—Evidence—Repetition. Where the witness had several times testified to what she knew about the appearance and condition of deceased before the homicide, there was no error in excluding testimony as to what she told another witness. 27.—Same—Evidence—General Reputation. Where defendant placed in evidence the issue of his general reputation as a peaceable man, it was harmless error to ask him whether he had not, prior to said difficulty, broken a couple of ribs of a third party, to which he answered in the negative. 28. —Same—Evidence—Contradicting Witness. Where the wife of deceased had testified that she was picking cotton and saw the defendant strike the deceased, and defendant offered testimony tending to show that her view was obstructed at this point; that she could not have seen the transaction, there was no error in permitting the State to show that the witness could have seen the transaction. 29. —Same—Evidence—Contradicting Witness. Where the bill of exceptions did not present any error with reference to contradicting a State’s witness to the effect that he saw the knife of the deceased a few moments after the killing, etc., there was no error. 30. —Same—Colloquy Between Court and Counsel—Remarks by Judge. Where counsel persisted in asking questions to which objections had been sustained, and a colloquy between the court and counsel arose in which the court threatened to fine the counsel, but did not make any comment on the testimony excluded to indicate his opinion of the merits of the case, there was no reversible error, although these matters are to be regretted. 31. —Same—Rule Stated—Practice. While it would be better practice, where the court feels constrained to criticise counsel not to do so in the presence of the jury, yet it is never proper for counsel to state in the presence and hearing of the jury what the testimony of the witness would be were he permitted to testify. 32. —Same—Sufficiency of the Evidence—Charge of Court. Where, upon trial of murder, the evidence sustained a conviction of murder in the second degree, under a proper charge of the court, there was no error. [Rehearing denied June 27, 1913.—Reporter.]
70 Tex. Crim. 419Kinch v. State (1913)
The opinion states the case.
70 Tex. Crim. 423Holmes v. State (1913)
The opinion states the case.
70 Tex. Crim. 434Young v. State (1913)
Perjury—Sufficiency of the Evidence—Statement in Solido. Where, upon trial of perjury, the indictment was so drawn as to present separate and distinct allegations upon material false testimony, and distinctly traversed them, and the court correctly submitted them to the jury upon the evidence, there was no error in the court’s failure to charge the jury that the allegations in the indictment must be proved in solido. Following Robertson v. State, 150 S. W. Rep., 893, and other cases. [Rehearing denied May 28, 1913.—Reporter.]
70 Tex. Crim. 436Castenara v. State (1913)
1.—Burglary—Attorney and Client. Where it appeared from the record that defendant’s attorney appeared before any witness was examined, and no injury resulted, there was no error. 3.—Same—Evidence—Habits. Where the evidence with reference to the habit of the Mexican people was not a material inquiry upon a trial of burglary, there was no error. 3. —Same—Evidence—Codefendant—Witness. Where the codefendant was tried and convicted, he could not be a competent witness for defendant. 4. —Same—Evidence—Fixing Time of Offense. Upon trial of burglary, there was no error in admitting testimony that the witness heard of the burglary on one morning,- and that the night before he had seen defendant and his codefendant together at a certain place; so as to fix the time when he had seen them. 5. —Same—Sufficiency of the Evidence—Statement of Facts. In the absence of a statement of facts, this court can not pass on the insufficiency of the evidence.
70 Tex. Crim. 438Kaufman v. State (1913)
1. —Concealing Stolen Property—Bills of Exception. Where, upon appeal from a conviction of concealing stolen property, the bills of exception did not point out the error in the admission of evidence and were defective in other respects, the court could not review them on appeal. Following Conger v. State, 63 Texas Crim. Rep., 315, and other cases. 2. —Same—Evidence—Leading Questions—Bills of Exception. Where the bills of exception with reference to leading questions were defective, they could not be considered on appeal. Following Carter v. State, 59 Texas Crim. Rep., 73. 3. —Same—Evidence—Other Offense. Where, upon trial of receiving stolen property, the court admitted in evidence testimony as to other contemporaneous offenses of the same character, and properly limited the same in the charge of the court to the question of knowledge, intent, system, etc., there was no error. Following Melton v. State, 63 Texas Crim. Rep., 362, and other cases. 4. —Same—Case Stated—Other Offenses—Evidence—Accomplice—Corroboration. Upon trial of receiving stolen property, there was no error in admitting the testimony of an accomplice to the effect that he had made an agreement with the defendant to steal goods and deliver them to defendant on the occasion charged in the indictment, and also of similar transactions prior to the time the offense was charged to have been committed, in which he was corroborated by other testimony, the court limiting these other transactions to establish system of like crime committed by the defendant, and requiring corroboration of said testimony. 5. —Same—Alibi—Charge of Court—Definition of Offense. Upon trial of receiving stolen property defendant must have had such control of the property as at least amounts to constructive possession, but actual corporeal possession is not necessary, and where it was shown that the defendant received the property constructively at a place designated by him, his personal presence was not necessary to complete the offense, and there was no error in the court’s failure to charge on alibi, the court specifically requiring in his charge that the defendant must have received the goods knowing that they were stolen before he could be convicted. 6. —Same—Argument of Counsel—Defendant’s Witnesses. Where, upon trial of receiving stolen property, it developed that several relatives of the defendant were present at the time of the delivery of said stolen goods at the place where they were found, there was no error, in permitting State’s counsel to argue the fact that these relatives were not placed on the witness stand to testify. Following Sweeney v. State, 65 Texas Crim. Rep., 593. 7. —Same—Evidence—Other Offenses—Moral Turpitude—Bill of Exceptions. Where appellant complained that the court refused to permit him on cross-examination of the principal State’s witness- to show that he was guilty of felonies, but the bill of exceptions showed that the court allowed the defendant to ask this witness about all indictments against him, and also as to the theft and burglaries which were involved in the system about which the witness was testifying, there was no error. 8. —Same—Evidence—Impeaching Witness—Moral Turpitude. Where, upon appeal from a conviction of concealing stolen property, appellant complained that he had not been permitted to ask the chief State’s witness, on cross-examination, whether he had not committed many robberies, and not that he had been indicted or convicted of robbery, there was no error in the court’s refusal to permit him to do so, as the witness could not have been legally impeached, unless it was shown that he had been legally charged with a felony or a misdemeanor imputing moral turpitude. 9. —Same—Principal—Accomplice—Theft—Concealing Stolen Property— Carving. Where, upon trial of concealing stolen property, the evidence clearly established that the defendant was guilty of this offense as a principal as charged in the indictment, and not as an accomplice to such receiving and concealing, the contention that he was an accomplice to the theft of the property, and, therefore, could not be convicted of concealing and receiving the same, was untenable, inasmuch as theft of property is an entirely separate and distinct offense from that of an accomplice to theft of such property, and also an entirely separate and distinct offense from that of receiving and concealing said property, and the State had the right of choice as to which crime it would prosecute.
70 Tex. Crim. 449Lynch v. State (1913)
The opinion states the case.
70 Tex. Crim. 451Clay v. State (1913)
1. —Murder—Murder in Second Degree—Special Venire. Upon trial of murder, where the district attorney filed a written motion that defendant be placed on trial for murder in the second degree, which motion was sustained and defendant required to select the jury from the panel of the week, without a special venire, there was no error. Following Gentry v. State, 152 S. W. Rep., 635. 2. -—Same—Evidence—Other Transactions—Former Difficulty. Upon trial of murder, where defendant offered testimony that the deceased about a month before the homicide assaulted her and threatened to kill her, and again shortly before the homicide assaulted and threatened to kill her, it was reversible error to refuse to admit in evidence such testimony. 3. —Same—Evidence—Previous Acts and Declarations of Deceased. Where, upon trial of murder, defendant testified that the deceased was approaching her with a knife, saying that he was going to kill her, previous acts, a short time before the homicide in which he attempted to kill or to inflict serious bodily injury, should have been admitted in evidence as bearing on her good faith in claiming that deceased would kill her. 4. —Same—Continuance—Practice on Appeal. Where the judgment is reversed and the cause remanded for other grounds, the overruling of a motion for continuance need not be considered on appeal.
70 Tex. Crim. 454Pace v. State (1913)
1.—Keeping Disorderly House—Selling Liquor Without License—General Reputation. Upon trial of selling intoxicating liquors, etc.,- at retail without license and keeping a disorderly house, there was no error in admitting evidence of the general reputation of the house as a place where intoxicating liquors were sold. Following Joliff v. State, 53 Texas crim. Rep., 61. 8.—Same—Social Club—Charter—Extra-Territorial Law. A charter granted by one State has no force and effect in any other State except by force of the laws of the State in which it is sought to transact business, and a charter issued by the State of. Oklahoma authorizing the running of a social club has no effect in the State of Texas. 3. —Same—Rule Stated—Corporation—Charter. A corporation being a mere creature of the law, possesses only those properties which the charter confers upon them, either expressly or as incidental to its very existence. 4. —Same—Rule Stated—Residence of Corporation—County. A corporation is a mere creature of the law and can have no legal existence beyond the limit of the sovereignty which created it. It must dwell in the place of its creation, and the State of its creation can not confer on it a corporate existence beyond its own bounds, nor add to nor diminsh the powers to be exercised by it in other States. It has no 'extraterritorial force in another State and is only permitted to operate there under the principle of comity. 5. —Same—Rule Stated—Foreign Corporation. Every State has the right to prescribe the terms upon which any corporation in another State or foreign country may do business within its limits or it may exclude such corporation entirely with the exception as to transacting interstate commerce. 6. —Same-Foreign Corporation—Permit Required. A foreign corporation has no absolute rights of recognition iri another State, but depends for such recognition and enforcement of its contract upon the assent of said State upon such condition as such State may deem proper. 7. —Same—Foreign Corporation—Rule Stated—Character of Business. A corporation chartered under the laws of one State which undertakes to take up its habitation in another State and there transact business, must show that it is authorized to do the character of business in the State where created as well as that it is authorized to do the business under the laws of the State where it seeks to locate. 8. —Same—Case Stated—Social Club—Charter. Where defendant was prosecuted for keeping a disorderly house where intoxicating liquors were kept for sale and sold, and claimed that he was entitled under a charter issued in the State of Oklahoma to run a social club, but failed to show that under said charter he would have the right to dispense liquors to the members of the club, he would not have such right in this State, even if he had secured a permit to do business in this State under such charter, unless authorized by the terms of the permit or other laws of the State. 9. —Same—Charge of Court—-Bona Fide Club. Where defendant was charged with the keeping of a disorderly house, etc., for the sale of liquor without license, and offered in evidence a charter obtained in the State of Oklahoma to run a social club without showing that he had a right to dispense liquors, etc., it was not necessary to submit the question of a bona fide club, although the court so instructed the jury, and the defendant could not complain. 10.—Same—Case Stated—Sufficiency of the Evidence. Upon trial of keeping a disorderly house where spirituous, vinous or malt liquors were sold or kept for sale at retail without license, the evidence showed that defendant was in control of the house and sold intoxicating liquors, he could not claim protection under a charter issued in the State of Oklahoma to run a social club, without showing that he had been granted a permit under the laws of this State, and the conviction was sustained.
70 Tex. Crim. 459Cole v. State (1913)
The opinion states the case.
70 Tex. Crim. 463Goolsby v. State (1913)
The charging part of the indictment is as follows. First count. “That I. L. Goolsby, owner and manager of a pool hall, late of the County of Jones, on or about the 15th day of December, in the year of our Lord One Thousand Hine Hundred and Eleven, with force and arms, in the County of Jones and State of Texas, did then and there unlawfully permit a game of pool to be played upon his premises, the said premises being then and there a pool hall, the same being a public place wherein people resorted for the purpose of playing pool, and did then, and there permit and allow the fees of the game to be bet and wagered upon said game.” Second count. “That I. L. Goolsby, being the manager and owner of a certain pool hall in Jones County, Texas, on or about the 15th day of December, 1911, and before the presentment of this indictment, did then and there unlawfully permit a game of pool to be played in his pool hall, the same then and there being a public place, where people resorted for the purpose of playing pool, and did then and there allow and permit a game of pool to be played, wherein the fees of the game were bet and wagered upon the result of said game, he, the said'I. L. Goolsby, then and there having control and management, of the said pool hall.” (Tr., p. 3.)
70 Tex. Crim. 464Ex Parte Welburn (1918)
The opinion states the case.
70 Tex. Crim. 466Bell v. State (1913)
1. —Theft from Person—Attempt to Commit Theft from Person—Degrees of Offense. Where the indictment charged theft from the person by privately taking from the possession of the person injured certain property, the offense of an attempt to commit theft from the person was included in said offense, and the court correctly submitted that question to the jury for its finding, under articles 771 and 772, Code Criminal Procedure. 2. —Same—Additional Charge of Court. Where, upon trial of theft from the person, the jury asked for additional instructions and the court properly submitted same under article 754, Code Criminal Procedure, there was no error, although the court had submitted the question in his original charge, but it became necessary on account of the argument of defendant’s counsel to further instruct the jury.
70 Tex. Crim. 469Terry v. State (1913)
The opinion states the case.
70 Tex. Crim. 470McKnight and Elmore v. State (1913)
The opinion states the case.
70 Tex. Crim. 475Whitmire v. State (1913)
The opinion states the case.
70 Tex. Crim. 477Wiseman v. State (1913)
1. —Bail Bond—Forfeiture—Approval—Sheriff—Term Time—Felony. Where, for felony, during the term of the District Court, the sheriff took defendant’s hail bond and the latter appeared before the court and was tried, convicted, and a new trial granted and he was discharged on said bond, and the evidence did not show that the court did not verbally fix the amount of the bond and so instruct the sheriff, the contention that it was not shown to have been fixed and approved by the court, will not cause a reversal of the judgment. Following Arrington v. State, 13 Texas Crim. App., 551, and other cases. 2. —Same—Statutes Construed—Bail Bond—New Trial. Where defendant entered into bond for his appearance for a felony, was convicted and his conviction thereafter set aside and a new trial awarded and the sheriff instructed to discharge him from custody on said original bail bond, the defendant and his sureties were liable thereon, defendant having defaulted to answer at the next term of the court. 3. —Same—Statutes Construed—Old and New. See opinion for a discussion of the statutes, both old and new, with reference to bail bonds and forfeitures. 4. —Same—Query—Appeal Bond—Reversal—Bail Bond. Where defendant after conviction was granted a new trial and discharged on his former bail bond by order of the court, the question if he had in the meantime given an appeal bond, whether the sureties upon reversal of cause would have been discharged on said former bail bond, need not be decided. 5. —Same—Difference Between the Old and New Statutes. The only relative difference in the two statutes is that under the Act of the Thirtieth Legislature the defendant is permitted to go at large during his trial on bail bond; whereas, under the previous law, he was taken into custody immediately upon his announcement of ready for trial. [Rehearing denied May 14, 1913.—Reporter.]
70 Tex. Crim. 480Heiman v. State (1913)
1.—Bail Bond—Notice of Appeal—Writ of Error—Practice. It has always been the rule in this State that after 'forfeiture of a bail bond or a recognizance the procedure and practice is the same as in civil cases. Following Houston v. State, 13 Texas Crim. App., 558, and other cases. 3.—Same—Scire Facias—Practice—Civil Cases—Brief. Unless briefs have been filed in the court bélow and in this court in scire facías cases in compliance with the rule governing civil cases, such appeals will be dismissed. Following Jay v. State, 34 Texas Crim. Rep., 98. 3. —Same—Writ of Error—Delay. Where the record in a scire facias appeal was not filed in this court for nearly a year, although notice'of appeal had been given and the statement of facts approved and filed, and appellants filed a writ of error and even then took no proper steps to present their case, the same should not be considered; however, the questions presented present no error. 4. —Same—Evidence—Indictment. In a scire facias proceeding on a bail bond, it was not necessary to introduce the indictment in evidence. Following Abbott v. State, 45 Texas Crim. Rep., 514. 5. —Same—Bail Bond—Filing. A bail bond duly taken and approved by the sheriff is not vitiated by the fact that it was not filed with the clerk until the day of the forfeiture. [Behearing denied June 27, 1913.—Beporter'.]
70 Tex. Crim. 481Nunez v. State (1913)
1.—Kidnapping—Bills of Exception. Where the hills of exception are not approved by the trial judge, they •can not be considered on appeal; however, where it was shown, upon motion for rehearing, that.the bills were approved by the judge and that the clerk inadvertently omitted to'so certify in the transcript, they will be considered. 2. —Same—Continuance—Want of Diligence. Where the application for continuance showed a want of diligence in applying for process of the absent witness, there was no error in overruling same. 3. —Same—Evidence—Conspiracy—Defendant's Absence. Where, upon trial of kidnapping, the evidence showed a well developed conspiracy between the defendant and others, there was no error to admit in evidence the acts, words, and conduct of each and all the conspirators in furtherance of the common design, and this whether the person on trial was actually present at all times or not. 4. —Same—-Evidence—Circumstances. Upon trial of kidnapping, there was no error in admitting testimony that the witness saw defendant and others have the party injured in charge taking him across the Eio Grande river, although the witness may not have seen them take bodily charge of said party. 5. —Same—Boundary Dine—Evidence. Where, upon trial of kidnapping, the evidence showed that the party alleged to have been kidnapped was taken across the Eio Grande river from the United States of America to the Eepublic of Mexico without his consent, there was no error in admitting evidence which tended to show that the point where the alleged kidnapping took place was in El Paso County, Texas. 6. —Same—Boundary Line—Erosion—Sudden Change—Charge of Court— Treaty. Where, upon trial of kidnapping, the court properly submitted the Treaty of Guadalupe Hidalgo with reference to the boundary line between the Republics of Mexico and the United States, there was no error in refusing a special charge with reference to a sudden change of the Eio Grande river bed, there being no evidence on this matter. 7. —Same—Sufficiency of the Evidence. Where, upon trial of kidnapping, the evidence sustained the conviction, there was no error.-
70 Tex. Crim. 485Garcia v. State (1913)
1. —Murder—Charge of Court—Manslaughter—More Than One Assailant. Where, upon trial of murder, the evidence showed more than one assailant in an assault upon the .defendant, the failure of the court in his charge on manslaughter to submit this issue, and limiting the provocation and the right of defendant to act alone upon the acts of the deceased, the same was reversible error. 2. —Same—Buie Stated—Adequate Cause. The charge of the court must not confine adequate cause to the acts of deceased, if there is evidence that another is acting with him. Following Brown v. State, 54 Texas Crim. Rep., 121, and other cases. 3. —Same—Charge of Court—Provocation. Where, upon trial of murder, the evidence showed that another was acting with deceased in an attack upon defendant, it was reversible error in the court’s charge to limit the provocation to the acts of the deceased, in his charge on manslaughter. 4. —Same—Pain and Bloodshed—Adequate Cause. Where, upon trial of murder, the evidence showed pain or bloodshed on part of defendant, the jury should have been affirmatively charged under the law of manslaughter that this was adequate cause, and a charge of the court that the jury might consider all the facts and circumstances is not sufficient. 5. -—Same:—Self-defense—Charge of Court—Real and Apparent Danger. Upon trial of murder, where the evidence showed both real and apparent danger, the court should have submitted a pertinent charge thereon. 6. —Same—Charge of Court—Threats—Conspiracy. Where, upon trial of murder, the evidence showed that the deceased had made threats to take the life of defendant, etc., and also tended to show that his companion was in the conspiracy with him to execute those threats when they met defendant and made a joint attack upon him, this issue should have been properly submitted to the jury, and the court’s charge limiting ’the threats to the words and acts of deceased was insufficient. 7. —Same—Evidence—Ill-Will—Declarations of Deceased. Upon trial of murder, the defendant should have been permitted to show statements made by deceased of his ill-will against the defendant, although made in the absence of defendant, as this bore on the question of ill-will, and as to who began the difficulty. 8. —Same—Evidence—Res Gestae Statements. Upon trial of murder, it was error not to admit testimony offered by the defendant that, immediately upon the cessation of the difficulty, defendant rapidly returned to his home, and within ten or fifteen minutes thereafter stated to his parent in a nervous, suffering and excited condition, that he had been attacked by deceased and another and that he killed deceased in the difficulty. Following Craig v. State, 30 Texas Crim. App., 619, and other cases. 9. —Same—Charge of Court—Murder in Second Degree—Unlawful Killing —Implied Malice. Upon trial of murder, it was error in the court’s charge on murder in the second degree to instruct the jury that malice will be implied from an unlawful killing. 10. —Same—Evidence—Original Testimony—Interpreter—Declarations of Defendant. Upon trial of murder, it was error to permit a State’s witness to testify as to what he had been told by the interpreter that the companion of the deceased said were defendant’s declarations, just before the homicide, as this was offered as original, and not as impeaching testimony.
70 Tex. Crim. 493Ex Parte Ross (1913)
The opinion states the case.
70 Tex. Crim. 494Womack v. State (1913)
The opinion states the case.
70 Tex. Crim. 495Comegys v. State (1913)
The opinion states the case.
70 Tex. Crim. 497Wilson v. State (1913)
The opinion states the case.
70 Tex. Crim. 498Reagan v. State (1913)
1. —Murder—Clothing of Deceased—Evidence. Where, upon trial of murder, the evidence raised a sharp eonflict as to the position of deceased when the first shot was fired, there was no error in admitting in evidence the clothing worn by deceased at the time of the .shooting. 2. —Same—Evidence—Husband and Wife—Cross-Examination. Where, upon trial of murder, the defendant’s wife had testified on direct examination to witnessing the shooting, etc., there was no error in permitting the State, on cross-examination, to show that at the time of the shooting she was having a conversation over the telephone and could not have seen the shooting. 3. —Same—Evidence—Rebuttal—Contradicting Witness. Where the wife of the defendant had testified to witnessing the shooting and denied having a conversation over the telephone with a certain party at. said time, there was no error in permitting the State, in rebuttal, to show that she did have such conversation. 4. —Same—Evidence—Declarations by Defendant—Res Gestae. Where it did not appear, from the record on appeal, what length of time had elapsed between the shooting and the declarations by the defendant that deceased came at him with a knife, this court can not determine whether the same was admissible as res gestae. 5. —Same—Evidence—Exhibit—Knife XT sed—Practice. Where, upon trial of murder, the defendant introduced in evidence the knife that he claimed was found near the body of the deceased, hut failed to have the same described by any witness, and after adjournment of court asked for an order to send this knife up as an exhibit, -which the court refused, the same was not reversible error, in the absence of a showing that the trial judge abused his discretion. The application for such order should have been made to this court. 6. —Same—Charge of Court—Murder in the First Degree. Where defendant was convicted of murder in the second degree, his complaint to the charge of the court on murder in the first degree thereby passed out of the case; besides, the same was correct. 7. —Same—-Murder in the Second Degree—Charge of Court. Where the court submitted a proper charge on murder in the second degree and instructed the jury as to the facts that would authorize a conviction, and therein stated “and not in defense of himself, and not under circumstances which would reduce the offense to manslaughter, did unlawfully, with implied malice, shoot and thereby kill,” etc., there was no reversible error on that ground. Following Puryear v. State, 56 Texas Crim. Rep., 231, and other cases. Distinguishing Roberts v. State, recently decided. 8. —Same—Manslaughter—Charge of Court—Self-defense—Provocation. Where, upon trial of murder, there was evidence that deceased used insulting language during the difficulty that resulted in the homicide and which conveyed an insult to defendant’s wife, and there was also evidence of a prior difficulty and threats by deceased against the defendant, and the court, in his charge, limited the provocation to such as arose at the time of the homicide, the same was reversible error. 9. —Same—Charge of Court—Adequate Cause—Previous Provocation— Threats. Where the evidence showed previous provocation and communicated threats, the jury should have been instructed on passion and adequate cause, that they should consider such previous provocation as such and threats, in passing on the provocation occurring at the time of the homicide. 10. —Same—Insulting Words and Gestures—Assault and Battery—Charge of Court. Where, upon trial of murder, there was no evidence calling for a charge of the court on insulting words or gestures or an assault and battery so slight as to show no intention to inflict pain or injury when not amounting to adequate cause, it was error to charge thereon, especially, where defendant claimed insulting communications and threats in the presence of his wife, which would amount to adequate cause, under article 1130, Penal Code. 11. —Same—Charge of Court—Self-defense. Where, upon trial of murder, the State’s theory was that defendant killed deceased while he was going along the public road, but defendant contended that deceased entered his yard and was guilty of abusive and threatening conduct, the charge of the court which instructed the jury that defendant would have the right to use all necessary force to expel deceased from his premises, but no right to eject deceased from the public road was error; there being no evidence calling for this latter qualification. 12. —Same—Charge of Court—Self-defense—Defense of Property. Where, upon trial of murder, the evidence raised the issue of self-defense and the right of the defense of property against an intruder, separate and distinct charges should have been given on these two separate issues, and a combination of the two was error. 13. —Same—Change of Law—-Murder—Penalty. See opinion with reference to the new law on murder, and that the jury would not be authorized under the said new law to assess the penalty now assessed against murder in the first degree.
70 Tex. Crim. 506Lawrence v. State (1913)
The opinion states the case.
70 Tex. Crim. 511Holley v. State (1913)
The opinion states the case.
70 Tex. Crim. 515Bird v. State (1913)
1.—Occupation—Intoxicating Liquors—Local Option—Charge of Court. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court, in his charge, made the criterion simply two sales as pursuing the business or occupation of selling intoxicating liquors, and by no means made it clear that the jury must believe from all the evidence that the defendant pursued said occupation and in addition thereto made as many as two sales, the same was reversible error. Following Wilson v. State, 154 S. W. Rep., 572. 3.—Same—Description of Precinct. The description of the precinct in which prohibition was adopted was» sufficient, and there was no error on that ground.
70 Tex. Crim. 517Schneider v. State (1913)
The opinion states the case.
70 Tex. Crim. 519Stanton v. State (1913)
Appeal from the Criminal District Court of Dallas Ho. 2. Tried below before the Hon. Barry Miller. Appeal from a conviction of murder in the first degree; penalty, death. In addition to the evidence stated, in the opinion of the court, it was shown that the officer who arrested the defendant testified that before he arrested him, defendant said, “You know that woman has been bleeding me all the time,” in answer to a remark by his brother, and further said, “Here I am, Cap,” and that this was all said before defendant was arrested and immediately after the shooting. Among other witnesses, the defendant introduced his sister, who nursed him when a child, who testified that when defendant was about ten years old she fell, out of a porch with him and broke his left arm and knocked a hole in his head and that he was unconscious about three or four hours, and that this affected his mind and that he was never right thereafter; that she always attended to his business when he was around her for many years, paying his rents, etc., and that at one time he paid his rent twice; that his mind was not right; that he could not carry on a good conversation; that she always treated him as a child. Other testimony was introduced on this line, and it was shown that at times he was peculiar, etc. It was also shown by the testimony for the defendant that he had reason to believe that his wife was unfaithful to him. Defendant testified in his behalf. He testified' substantially that he believed that his wife had been having illicit relations with another; this led to their separation; that he never maltreated her and was still giving her money when she needed it; that on the day of the killing he had met her at another place than where the homicide occurred and she insisted upon having more money, but that he had none, and that she searched his pockets and could not find any; that she then told him that she must have money that day; that if he did not get it for her she would kill him; that when she approached him at the place of the homicide, after the meeting that day, she insisted on getting money from him and reminded him of what she said; that she threw her hand in her jacket, and defendant believed she was going to shoot him, and thereupon shot her, etc.
70 Tex. Crim. 524Davis v. State (1913)
The following statement of the case made by the Assistant Attorney-General, is substantially correct; One Dilmous Davis, before the alleged offense in this case had been convicted of a felony, towit: assault with intent to rape, and there was pending in the Criminal District Court of Dallas County a motion for new trial in the Dilmous Davis case.
70 Tex. Crim. 532Sanders v. State (1913)
The opinion states the case.
70 Tex. Crim. 550Buckley v. State (1913)
Carrying Pistol—Defensive Theory—Misdemeanor—Charge of Court. Where, upon trial of unlawfully carrying a pistol, the defendant presented evidence that he carried the pistol to his father’s home where he lived, etc., and requested a special charge on said evidence which the court refused, the same was reversible error.
70 Tex. Crim. 551Parsons v. State (1913)
The opinion states the case.
70 Tex. Crim. 558Vickers v. State (1913)
1. —Murder—Manslaughter—Charge of Court—Defense of Another. Where, upon trial of murder, the evidence showed manslaughter and the court’s charge on manslaughter did not recognize the right of defendant to act in defense of another as the evidence required, and that adequate cause existed, the same was reversible error. 2. —Same—Self-defense—Charge of Court—Defense of Another. Where, upon trial of murder, the evidence raised the issue that the defendant was acting in defense of his brother and the court in his charge simply submitted the case on self-defense, the same was reversible error.
70 Tex. Crim. 561Giles v. State (1913)
The opinion states the case.
70 Tex. Crim. 563Davis v. State (1913)
1. —Carrying Pistol—Recognizance—Reinstatement. Where the appeal was dismissed for want of a sufficient recognizance, but a sufficient recognizance was thereafter properly filed, the appeal is reinstated. 2. —Same—Plea—Judgment—Waiver—Presumption. Where, upon trial of unlawfully carrying a pistol, the judgment below showed that defendant announced ready for trial and pleaded not guilty, waiving a jury, etc. Held, it will be presumed that he thereby also waived his right to enter a plea of not guilty under article 938, Code Criminal Procedure, if he did not in fact enter such plea, and it is too late to raise this question after verdict. 3. —Same—Evidence—Court Propounding Questions. Where, upon trial of unlawfully carrying a pistol, the defendant waived a jury, there was no error because of the fact that the court propounded some questions to the witnesses. 4. —Same—Absence of Defendant—Motion for Rehearing. Where no objection was made until after the court had heard and overruled the motion for new trial, and no jail penalty was assessed, there was no error that the defendant was not personally present.
70 Tex. Crim. 565Stevens v. State (1913)
1. —Gaming—Exhibiting Gaming Table—Indictment. Where, upon trial of exhibiting a gaming table for the purpose of gaming, the indictment charged that the defendant directly, and as agent and employe of another, kept and exhibited for the purpose of gaming a gaming table and bank, the same was sufficient. 2. —Same—Indictment—Not Duplicitous—Pleading. An indictment which charged the defendant directly and as agent and employe of another kept and exhibited, etc., a gaming table, the same was not duplicitous, as the statute provides that the offense may be committed in several ways, and there was no error in charging these conjunctively in the same count in the indictment. Following Morris v. State, 57 Texas Crim. Rep., 163, and other cases. 3. —Same—Statutes Construed. The fact that article 551 of the Revised Penal Code makes it a misdemeanor to keep and exhibit a gaming table or bank, does not vitiate article 558 of the same Code, making this offense a felony. Following Robertson v. State, 70 Texas Crim. Rep., 307. 4. —Same—Codifiers—Legislative Intent. The codifiers had no authority to add to, amend, omit, or write new statutes, and their work only becomes law through the Act of the Legislature, and the fact that a given provision is enacted as a part of revision gives it no more force and effect than if enacted as a separate and distinct bill. 5. —Same—Statutes Construed—-Later Act Controls—Codification. That article 558, when it was enacted by the Legislature in 1907 necessarily repealed article 551, which was passed in 1887, there can be no question, and the adoption of the codification of 1911, in which both articles were reenacted, did not have the effect of invalidating both statutes, and effect must be given to. article 558, which is the latter statute. Davidson, Presiding Judge, dissenting. 6. —Same—Buie Stated—Statutes Construed—Revision. Where two statutes in pari materia, originally enacted at different periods of time, are -subsequently incorporated in a revision and re-enacted in substantially the same language, with the design to accomplish the purpose they were originally intended to produce, the times when they first took effect will be ascertained by the courts and effect will be given to that which was the latest declaration of the will of the Legislature, if they are not harmonious. 7. —Same—Rule Stated—Legislative Intent—Conflicting Acts. Two Acts of the Legislature on the same subject passed at the same session of the Legislature ought, if possible, to be construed together, but where they are repugnant to each other, the last must stand as the will of the Legislature. Thus if considered as one bill, the felony statute being the later of the two, repeals the misdemeanor statute and leaves article 558, Penal Code, in force as the law of this State. Following Parshall v. State, 62 Texas Crim. Rep., 177; 138 S. W. Rep., 759, and other cases. Davidson, Presiding Judge, dissenting. 8. —Same—Bills of Exception—Evidence. Where the bills of exception did not state what was expected to be proven and it is impossible to see therefrom whether the testimony objected to was admissible, the same can not be considered on appeal. 9. —Same—Bills of Exception—Evidence—Practice on Appeal. Where the bill of exceptions did not show what the witness would have stated in regard to the questions propounded, the same can not be considered on appeal. 10. —Same—Evidence—Immaterial Testimony. Where none of the persons were introduced as witnesses, the fact as to whether or not they gambled and were discharged as clerks was not a material issue in the case. 11. —Same—Sufficiency of the Evidence—Exhibiting Gaming Bank. Where, upon trial of keeping and exhibiting for the purpose of gaming a gaming table and bank, the evidence sustained the conviction, there was n-o error. Davidson, Presiding Judge, dissenting.
70 Tex. Crim. 577Northcutt v. State (1913)
1. —Rape—Continuance—Evidence—Contradicting Witness. In the absence of a bill of exceptions the overruling of a motion for continuance can not be considered. Where defendant sought to impeach prosecutrix by proving contradictory statements, there was no error in admitting supporting testimony on the part of the prosecutrix. Following Goode v. State, 32 Texas Crim. Rep., 505, and other cases. 2. -—Same—Evidence—Husband and Wife. Where defendant, upon trial of rape of a female under age of consent, sought to prove the age of prosecutrix by his wife, there was no error, on cross-examination, to permit the State to show that defendant’s wife had sworn three days before defendant was indicted that prosecutrix was only fourteen years of age. Following Dobbs v. State, 54 Texas Crim. Rep., 550, and other cases. 3. —Same—Affirmative Issue—Charge of Court—Presumption of Innocence. A denial of guilt presents no affirmative issue, and where, upon trial of rape, the court submitted a proper charge on the presumption of innocence and reasonable doubt, there was no error. 4. —Same—Age of Prosecutrix—Charge of Court. Where, upon trial of rape, the court submitted defendant’s requested charge on the- question of the age of the prosecutrix, which was the only issue in the case, there was no error. 5. —Same—Transcript—Delay-—Statutes Construed. Where, upon appeal from a felony, the transcript was not filed within time, but delayed for. eleven months, but it appeared that the clerk was not guilty of contempt, he will not be punished; clerks of courts are admonished, however, that in the future they will be fined -for contempt if the filing of the transcript in this court is unnecessarily delayed. 6. —Same—Rule Stated—Statute Construed. Under article 932, Code Criminal Procedure, the clerk of the court below immediately after the adjournment -of the court, in all cases that are appealed, shall make out a certificate under the seal of his office exhibiting the lists of all such cases and transmit same to the clerk of this court, and clerks will be required to comply with the statute or held in -contempt. 7. —Same—Transcript—Statutes Construed—Ninety Days. Under articles 929, 930, Code Criminal Procedure, the clerks of the courts from whidh appeals are taken, as soon as practicable, must prepare transcripts to this court in preference to civil cases, etc., which must be filed within ninety days from the date of perfecting the appeal. See also article 934, Code Criminal Procedure. Clerks are warned that if they do not comply with the provisions of the statute, they will be held in contempt. 8. —Same—Attorneys—Misconduct—Neglect—Transcripts. Attorneys of defendants are cautioned, that if the clerks show that they are prevented from a compliance with the statute in making out .their transcripts by the wilful neglect or conduct of the attorneys that they will be held in contempt. 9. —Same—Admonition of Court—Delay in Criminal Cases. The delay in criminal cases ' can be remedied without writing another line of law into the Codes, and officers and attorneys are admonished to comply with the statutes- which will hereafter be rigidly enforced. [Behearing denied June 27, 1913.—Beporter.]
70 Tex. Crim. 582Johnson v. State (1913)
1.—Local Option—Indictment—Felony—Presumption. Where the indictment does not allege when prohibition went into effect and the offense is committed after the felony statute went into effect, the indictment prima facie charges a felony. Following Enriquez v. State, 60 Texas Crim. Rep., 580, and other cases. g.—Same—Date of Election—Hatter of Form—Amendment. The date on which a prohibition election was put in force is a matter of form and defendant can only take advantage thereof by motion to quash, when the State can amend. Following Hamilton v. State, 65 Texas Crim. Rep., 508. 3.—Same—Proof of Law in Force—Judicial Knowledge. Unless proof is made showing that prohibition is in force at the time the alleged violation occurred, the conviction can not be sustained, and the courts can not take judicial notice that prohibition is in force. The personal knowledge of tihe presiding judge is not judicial knowledge, and it was, therefore, error in the absence of proof to charge that that law was in force. Following Ellis v. State, 59 Texas Crim. Rep., 419, and other cases.
70 Tex. Crim. 584Neal v. State (1913)
1. —Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no error. 2. —Same—Accomplice—Purchaser—Charge of Court. Upon trial of a violation of the local option law, there was no error in the court’s failure to charge that the purchaser was an accomplice or submitting this question to the jury, as the purchaser is especially exempted, and is not an accomplice. Penal Code, article 602. 3. —Same—Charge of Court—Identification of Money. Where, upon trial of a violation of the local option law, the State proved the sale which the defendant denied, and the State’s evidence also showed that the paper dollar which went to pay for the whisky was afterwards clearly identified by a mark thereon, there was no error in the court’s failure to submit this matter to the jury, as this was no special .defense.
70 Tex. Crim. 586Sims v. State (1913)
1.—Hunting with Firearms—Enclosed Lands of Another—Mistake of Fact. Where, upon trial of hunting with firearms on the enclosed lands of another without the consent of the alleged owner, the evidence showed on part of the defendant that he entered upon said land believing that it belonged to another party than the one alleged in the indictment, the court should have submitted this issue to the jury. 3.—Same—Query—Insufficiency of the Evidence. See opinion questioning that where quail flew up out of a lane and went into the premises of another, where appellant went and fired one shot, killing three, was a violation of the statute.
70 Tex. Crim. 588Roberts v. State (1913)
1. —Burglary—Statement of Pacts—Bills of Exception. When the term of the court is more than eight weeks in length, the time within which a statement of facts and bill of exception may be filed begins to run from the date of the sentence, and where they were not filed within such time, they could not be considered on appeal. 2. —Same—Transcript—Capital Offense—Stenographer—Mandamus. It is only in case where one is charged with a capital offense and the court appoints an attorney for him that under the law he is entitled as a matter of right to have the stenographer make out a transcript of his notes, and, in all other cases, he must use due diligence, and if necessary, by mandamus, and where he filed his mandamus after the ninety days from the date of the sentence had elapsed, the same came too late. 3. —Same—Ex Parte Affidavit—Practice on Appeal. Where the time had elapsed when appellant could have filed his statement of facts and no reason appears why he did not apply for a mandamus in time, ex parte affidavits will not be considered. 4. —Same—Statement of Pacts—Practice on Appeal. In the absence of a statement of facts, no question being raised in the motion for new trial which the court can review, the judgment is affirmed.
70 Tex. Crim. 590Hall v. State (1913)
The opinion states the case.
70 Tex. Crim. 594Anderson v. State (1913)
The opinion states the case.
70 Tex. Crim. 596Culwell v. State (1913)
The opinion states the case.
70 Tex. Crim. 596Armstrong v. State (1913)
Burglary—Transcript—Statement of Facts. Where matters set forth in the transcript referred to questions of practice altogether in regard to securing a statement of facts, and which had been adversely decided against appellant, the same need not be again considered. Following Roberts v. State, recently decided.
70 Tex. Crim. 600Goodwin v. State (1913)
Appeal from the County Court of Rains. Tried below before the Hon. O. H. Rodes. Appeal from a conyiction of adultery; penalty, a fine of $100.
70 Tex. Crim. 605Norwood v. State (1913)
1.—Unlawfully Practicing Medicine—Variance. Where, upon trial of unlawfully practicing medicine, the information alleged that the defendant treated a certain human being for consumption, and the proof did not show that the disease he treated was consumption, the variance was fatal. Z.—Same—Agent—Corporation—Principal and Accomplice—-Misdemeanor. There is no distinction between principals and accomplices in misdemeanors, and if defendant comes either within the definition of an accomplice or principal, he is a principal in a misdemeanor case, and the contention of defendant that he was the mere agent of the corporation who treated patients and received pay therefor was untenable, and, if he personally violated the law, he was guilty. Following Houston v. State, 13 Texas Crim. App., 595, and other cases.
70 Tex. Crim. 607Claussen v. State (1913)
1. —Burglary—Bill of Exceptions. Where it appeared from the record on appeal that the bills of exception were filed within time, there was no error in overruling a motion to strike out. 2. —Same—Statement of Facts—Sufficiency of the Evidence. Where the statement of facts was not made out according to law, the same will be stricken from the record; however, even if the same be considered, the evidence was sufficient to sustain the conviction. 3. —Same—Jury and Jury Law—Bill of Exceptions. Where defendant complained that he did not get a fair and impartial jury out of the talesmen which were summoned to fill up the regular jury, but there was no showing that the sheriff did not exercise proper diligence to procure the talesmen, there was no error. 4. —Same—Misconduct of Jury. Upon trial of burglary, there was no error in overruling a motion for new trial on account of the misconduct of the jury because they had discussed the testimony of State’s witnesses and reached the conclusion that these as well as the defendant were guilty. 5.—Same—Continuance—Want of Diligence—Impeaching Testimony. Where, upon trial of burglary, defendant’s application for a postponement or continuance on account of absent witnesses showed a want of diligence, and that the absent testimony was of an impeaching character, there was no error in overruling the motion. Following Garrett v. State, 37 Texas Crim. Rep., 198, and other cases. [Rehearing denied June 4, 1913.—Reporter.]
70 Tex. Crim. 610Thompson v. State (1913)
The following statement' of the Assistant Attorney-General is substantially correct: Mr. Ash and the defendant were close friends and the defendant often visited at the home of Mr. Ash in Snyder. At the time the offense is alleged to have been committed Mr. Ash was out of town.
70 Tex. Crim. 612Cheesebourge v. State (1913)
1. —Forgery—Transcript—Ex Parte Paper. A paper which is attached to the front page of the transcript, but not embodied in or made a part thereof and not certified to nor verified in any way, can not be considered on appeal. Following Carroll v. State, 24 Texas Crim. App., 313. 2. —Same—Hegotiable Instrument—Indictment. Where the instrument on its face is a negotiable instrument and importing a pecuniary condition, it is not necessary for the indictment to contain any explanatory averments. Following Reeves v. State, 51 Texas Crim. Rep., 604. 3. —Same—Evidence—Practice in District Court. Where the evidence was admissible on the count of the indictment whieh charged forgery, and the second count charging the passing of a forged instrument was not submitted to the jury, there was no error. 4. —Same—Evidence—Bill of Exceptions—Variance. Where the bill of exceptions did not refer to the alleged variance between the instrument offered in evidence and that alleged in the indictment, the same could not be considered on appeal; besides, the statement of facts showed that there was no variance. 5. —Same—Evidence—Entries in Books. Upon trial of forgery, there was no error in admitting testimony as to the entries made in an express company’s book by the direction of the witness," it being shown that the book was correctly kept; besides, these facts were testified to by the witness making the entries. 6. —Same—Evidence—Handwriting. • ' Upon trial of forgery, there was no error in admitting testimony showing that shipments of liquor were received by defendant who signed for same in an express company’s book, and, also, the introduction of such books. 7. —Same—Evidence—Bill of Exceptions—Money Order. Where, upon trial of forgery, the record did not show on appeal that the alleged forged money order offered in evidence was not a copy of the one set out in the indictment or pointed out by the variance, there was no error. 8. —Same—Evidence—Bill of Exceptions—Signature. Where defendant objected to the testimony that the alleged maker of the forged money order did not sign the same because there was a variance between the proof and the pleading, but said order was not copied in the bill of exceptions nor the variance pointed out therein, the same could not be considered on appeal. 9. —Same—Evidence—Expert—Comparison of Handwriting. Where, upon trial of.forgery of an express money order, the State was permitted to introduce testimony by an expert as to comparison of handwriting between the signature on said order and the proven signature of defendant, there was no error; besides, the hill of exceptions did not point out the error as to the alleged variance between the money order introduced in evidence and that alleged in the indictment. Following Quintana v. State, 29 Texas Crim. App., 401, and other cases. 10. —Same—Bad Writing—Spelling—Charge of Court—Variance. Bad writing and bad spelling will not vitiate an instrument, and where appellant did not show in his hill of exceptions in wihat the variance consisted between the words and figures used in-the instrument introduced in evidence and the one alleged in the indictment, there was no error, although the alleged instrument was badly written, hut could, nevertheless, be deciphered, and there was no error in the court’s failure to charge thereon. 11. —Same—Charge of Court—Circumstantial Evidence. Where, upon trial of forgery, the court properly charged on circumstantial evidence, and that the alleged forged instrument must have been wilfully made without the knowledge and consent of the person whose name was forged, there was no error. 12. —Same—Original Instrument—Bill of Exception. Where, upon rehearing in this court, the clerk of the court below certified that the money order attached to the transcript is the one introduced in evidence, the same will be considered, but as the bill of exceptions objecting to its introduction is defective, no reversible error is presented.
70 Tex. Crim. 618Baker v. State (1913)
1. —Burglary—Suspended Sentence—Verdict of Jury. Where, upon trial of burglary, defendant invoked the Act of the Thirty-third Legislature, known as the Suspended .Sentence Law, which was submitted to the jury upon the facts, who found the defendant guilty, assessing two years imprisonment in the penitentiary and recommending a suspension of sentence, but the court sentenced the defendant to the penitentiary, holding said Act unconstitutional, the same was reversible error. 2. —Same—Legislative Power—Constitutional Law. The Constitution confers upon the Legislature the authority and power to define crime and fix the punishment therefor, and when they enact a law defining a crime and fixing the penalty, it becomes the law of the land, unless it is vetoed by the Governor; and in the Act of the Thirty-third Legislature, known as the Suspended Sentence Law, the Legislature did not seek to relieve from punishment after conviction, but by a general provision of said Act provided that in certain character of cases no punishment should be assessed unless the person on trial should again violate the law. 3. —Same—Constitutional Law—Legislative Power—Penalty. The Constitution does not inhibit the Legislature from passing a general law which provides that in the trial for certain offenses, defined by the Code, the question shall be submitted to the jury whether or not the person on trial has ever before committed any offense, and in the event, if they so find, that no punishment shall be undergone, etc., and the Act of the Thirty-third Legislature, supra, relates solely to the penalty to be suffered. 4. —Same—Difference Between ' Former and Present Act. In the former Act, the judge was invested with the power to suspend upon another trial, etc., while the present act leaves the jury to pass upon the innocence or guilt of the accused and to determine whether or not he should be confined in the penitentiary. 5. —Same—Case Stated—Practice on Appeal. Where, upon trial of burglary, the defendant invoked the Suspended Sentence Act, which was submitted to the jury, who in their verdict recommended such suspension, but the court sentenced the defendant to the penitentiary, the same was reversible error, and the lower court is instructed to vacate and annul the sentence and release the defendant upon proper recognizance.
70 Tex. Crim. 627Wilson v. State (1913)
1.—Assault to Murder—Words and Phrases—Charge of Court. Where, upon trial of assault to murder, the court submitted the issue of self-defense upon an attempt by State’s witnesses to rob the defendant, using the words, “if by force and violence,” the property of .defendant was taken from him, etc., that he had the right of self-defense, the contention that the court should have used the words, “by assault and putting in fear of their lives or bodily injury,” was hypercritical and not well taken, and there was no error. 3.—Same—Evidence—Corroboration. Where, upon trial of assault to murder growing out of the playing of a game of cards, the main State’s witness had described the furniture in the room where the cards were played, there was no error in permitting the State to show by the officers that they examined said room, describing the furniture therein, in corroboration of the State’s witness. 3. —Same—Evidence—Res Gestae. Upon trial of assault to murder, there was no error in admitting in evidence the statement of the main State’s witness immediately after he had been fired upon, that defendant and others had robbed him and shot him as he came downstairs; especially, as the same was withdrawn thereafter by the court. 4. —Same—Evidence—Contradicting Witness. Where a State’s witness had not been placed on the stand and his reputation as a law-abiding citizen was not an issue in the case, there was no error in excluding testimony as to certain instances of dangerous conduct in the life of said witness, no one having knowledge of such facts. Following Willis v. State, 49 Texas Crim. Rep., 139, and other cases. 5. —Same—Remarks by Judge—Charge of Court. Where the remarks of the trial judge could not have been injurious to defendant, and the court’s charge on justifiable homicide was such as would cause such remark to be really beneficial instead of hurtful to the defendant, there was no error. 6. —Same—Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence sustained a conviction of such offense, under a proper charge of the court, there was no error.
70 Tex. Crim. 631Wilson v. State (1913)
1.—Theft—Value of Property—Felony—Sufficiency of the Evidence. Where, upon trial of theft over the value of $50, the evidence sustained the conviction, under a proper charge of the court, there was no error. 3.—Same—Taking—Intent—Different Parts of House. The fact that the property was taken from different parts of the house in different lots would not constitute different takings, but would support the proposition that the same was taken in pursuance of one purpose and intent at the same time. 8.—Same—Charge of Court—Felony—Misdemeanor. Where, upon trial-of theft of property over the value of $50, the defendant contended that the property was taken at different times in quantities less than $50, and the court instructed the jury that before they could convict defendant of a felony, the State must show beyond a reasonable doubt that there was $50 or more of property taken at the same time, following said charge with reference to misdemeanor theft, there was no reversible error.
70 Tex. Crim. 631Johnson v. State (1913)
Burglary—Charge of Court—Peremptory Instructions to Acquit. . Where, upon trial of burglary of a private residence, the evidence sustained the case, although circumstantial, there was no error in refusing a peremptory instruction to acquit, and the conviction was sustained under a proper charge of the court.
70 Tex. Crim. 634Minter v. State (1913)