71 Tex. Crim.

Volume 71 — Texas Criminal Reports

182 opinions

71 Tex. Crim. 1Fowler v. State (1913)
The opinion states the case.
71 Tex. Crim. 6Williams v. State (1913)
The opinion states the case.
71 Tex. Crim. 7Compton v. State (1913)
The opinion states the case.
71 Tex. Crim. 9Creale v. State (1913)
1. —Theft—Intimidation—Witness. Where, upon cross-examination, the main State’s witness testified that she had first declined to file a complaint against defendant, there was no error in permitting the State to show that from the words and conduct of defendant-she was prevented from doing so through fear. 2. —Same—Remarks by Judge—-Presence and Hearing of Jury. Where the hill of exceptions failed to show that the remarks by the judge to which objections were made were made in the presence and hearing of the jury, but disclosed that they were only made in the presence of the jury, that the judge believed the jury did not hear them, .there was no error. 3. —Same—Evidence—Intent. Where, upon trial of theft of rings, defendant admitted that they were the property of the prosecutrix, but that he had pounded them with her consent, it was immaterial what lie intended to do after lie had pounded them, arid there was no error in the court’s refusal to permit him to testify that he intended to pay the prosecutrix for the rings and that he did not liavé the money to redeem them. 4. —Same—Evidence—Declarations of .Defendant. Where, upon trial of theft, defendant admitted that the alleged stolen rings belonged to .the prosecutrix; that he had never claimed them and pounded them with her consent, there was no. error in permitting the State to show that when he offered to pound them he claimed them as liis own. 5. —Same—Different Counts in the .Indictment. Where defendant was indicted under two different counts and both of which were submitted and convicted under the one of theft as bailee, complaints as to the other count need not be considered on appeal, the court correctly submitting the law on bailments. 6. —Same—Bailment—Embezzlement—Theft. While the dividing line between embezzlement and theft by bailee is difficult to distinguish at times, yet where in the instant case, the evidence justified a conviction for theft by bailee, there was no error. Referring to Butler v. State, 49 Texas Grim. Rep., 159. 7. —Same—Theft from the Person—Charge of Court. Where; upon charge of theft as bailee, the evidence did not raise the issue of theft from the person, there was no error in the court’s failure to charge thereon. 8. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of theft as bailee, the evidence was direct, there was no error in the court’s failure to charge on circumstantial evidence. 9. —Same—Sufficiency of the Evidence. Where, upon trial of theft as bailee, the evidence sustained the conviction on a proper charge of the court, there was no error. [Eehearing denied June 11, 1913.—Reporter.]
71 Tex. Crim. 14Bush v. State (1913)
The opinion states the case.
71 Tex. Crim. 17Welch v. State (1913)
1. —False Swearing—Bills of Exception—Practice on Appeal. In the absence of bills of exception to complaints in regard to admitting certain testimony, the same can not be considered on appeal. 2. —Same—False Swearing—Perjury. • Where the affidavit upon which the charge of false swearing was based was not attached to the motion for continuance or used in 'the trial, of the case against the defendant, but was found on his person when he was arrested charged with the offense of false swearing, this constitutes the offense of false swearing and not of perjury. 3. —Same—Indictment—Affidavit Voluntarily Made. Where the indictment charged that the affidavit upon which the false swearing was based was unlawfully, deliberately, corruptly, and wilfully made, the same was sufficient without using the word “voluntarily.” 4. —Same—Attorney and Client. In a prosecution for false swearing, it was no defense that defendant consulted with an attorney and made the affidavit in pursuance of the suggestion of the attorney, there was no error in refusing a special charge on this theory. 5. —Same—Wilfully and Deliberately. Upon trial of false swearing, the fact that defendant was suffering at the time of making the alleged affidavit from a bowel trouble did not show that the affidavit was not wilfully and deliberately made. 6. —Same—Insanity—Charge of Court. Where, upon trial of false swearing, the defendant’s testimony tended to raise the issue that he might have been insane at the time of making the alleged false affidavit, and the court properly submitted the issue of insanity, there was no error. 7. —Same—Voluntary Declarations—Charge of Court. Where, upon trial of false swearing, the court properly submitted the law requiring that the statement must be voluntarily made and. properly defined the law of false swearing, the criticism that the court failed to instruct the jury that the affidavit must be voluntarily made is not borne out by the record. 8. —Same—Charge of Court—Harmless Error. Where, upon trial of false swearing, the evidence showed the absolute falsity of the alleged affidavit, there was no error in the court’s charge that said1 affidavit was not required by law, and although the latter part of the charge' on this subject may have been subject to criticism, the error, if any, was, harmless under the evidence. 9. —Same—Insanity. Where defendant testified that at the time of the trial he had recovered his mental status, and there was nothing to disclose that at the time of defendant’s trial for insanity theretofore, there was any evidence offered that defendant was insane at the time he committed the offense, there was no error in the court’s charge requiring that the burden was on the defendant to show by a preponderance of testimony that he was of unsound mind at the date of the commission of the offense. Distinguishing Witty v. State, recently decided. [Rehearing denied June 11, 1913.—Reporter.]
71 Tex. Crim. 20Coleman v. State (1913)
1.—Abandonment—Seduction—Continuance. Where, upon trial of abandonment by defendant of the woman he married after her alleged seduction, the case was reversed on appeal and other grounds, the overruling of the application for continuance need not be considered. 8.—Same—Charge of Court—Definition of .Offense—Accomplice Testimony. Where, upon trial of abandonment, the court’s charge on the definition of seduction, marriage, and abandonment thereafter and accomplice testimony probably did not present reversible error, yet the court should apply more fully the law applicable to the case. 3. —Same—Requested Charges—Promise of Marriage—Lust. Where, upon trial of abandonment of a woman after seduction and marriage, the evidence showed that the prosecutrix was probably actuated by other motives than defendant’s promise to marry her in yielding herself to sexual intercourse, the court should have submitted defendant’s requested charge presenting this issue. 4. —Same—Charge of Court—Chastity of Prosecutrix. Where, upon trial of abandonment of a woman after seduction and marriage, there was evidence that defendant had sexual intercourse with the prosecutrix before the time she claimed that he had such intercourse upon a promise to marry, the court should have submitted this issue as requested. 5. —Same—Evidence—Contradicting Witness. Where, upon trial of abandonment of a woman upon marriage after seduction, the State was permitted to introduce testimony that prosecutrix left home on account of her pregnant condition, the defendant should have been permitted to show her contradictory statements and that this was not the cause of her leaving home. 6. —Same—Evidence—Declarations of Prosecutrix. Upon trial of abandonment of a woman after seduction by defendant after marriage, it was error to admit testimony as to the declaration of prosecutrix that she felt she had been disgraced because she became pregnant with child by the defendant and that she left home at night, etc. Following Bailey v. State, 30 S. W. Rep., 669.
71 Tex. Crim. 27Anderson v. State (1913)
1. —Arson—Evidence—Contents of Barn. Where, upon trial of arson, the defendant received the minimum punishment, and it was apparent that the jury acted without passion or prejudice in finding their verdict, there was no error in permitting the State’s witness to testify as to the contents of the barn burned; besides, such testimony was admissible anyway. 2. —Same—Evidence—Deed—Oral Testimony. Where defendant was charged with arson of a barn belonging to the State, there was no error in admitting oral testimony that said barn was the property of the State without producing the deed thereto. Following Wilson v. State, 24 S. W. Rep., G49, and other cases. 3. —Same—Evidence—Expert Testimony. Upon trial of arson, there was no error in admitting testimony that the persons charged with burning the alleged building would know the effect of cutting the electric wire's, it having been showLn that the witness was an electrical engineer and possessed the necessary information to give an opinion, and that he had taught the persons charged with burning the building, the effects of cutting the wires, and that the offense was deliberately planned. 4. —Same—Principals. Where, upon trial of arson, the facts showed and authorized the jury to find that the defendant was a principal in the commission of the offense, there was no error. 5. —Same—Evidence—Confessions. Where, upon trial of arson, the voluntary confessions of defendant were reduced to writing according to statutory requirements, they were admissible as evidence. 6. —Same—Evidence—Rebuttal. Where the defendant had.testified in his own behalf, there was no error in introducing in rebuttal the conversation between him and the State’s witnesses while not under arrest, as it affected his credibility. 7. —Same—Inculpatory Statements—Confessions—Charge of Court. Where defendant’s confessions were inculpatory and were corroborated by other evidence, it was not necessary for the court to charge that exculpatory confessions must be disproved. 8.—Same—Circumstantial Evidence—Charge of Court. Where, upon trial of arson, the written confessions of defendant were admitted in evidence, there was no error in the court’s failure to charge on circumstantial evidence. Following Barnes v. State, 53 Texas Grim. Bep., 629, and other eases. ■ [Behearing denied October 15, 1913.—Beporter.].
71 Tex. Crim. 31Haynes v. State (1913)
The opinion states the case.
71 Tex. Crim. 36Knight v. State (1913)
The opinion states the case.
71 Tex. Crim. 40Harrison v. State (1913)
Murder—Statement of Facts—Bills of Exception. Where the statement of facts and bills of exception are not filed within time, the same could not be considered on appeal, however, if such statement be considered, there was no error in' defendant’s conviction of murder in the first degree and assessing the death penalty. [Rehearing denied June 27, 1913.—Reporter.]
71 Tex. Crim. 41Scott v. State (1913)
The opinion states the case.
71 Tex. Crim. 43Black v. State (1913)
The opinion states the case.
71 Tex. Crim. 44Sims v. State (1913)
The opinion states the case.
71 Tex. Crim. 45Brown v. State (1913)
1. —Forgery—Evidence—Confessions—Impeachment. Where, upon trial of forgery, testimony as to the declarations and confessions of defendant made while under arrest was admitted in evidence, and the same were not in writing and defendant was not warned at the time, the same were inadmissible; neither could this testimony he used to impeach the defendant. 2. —Same—Buie Stated—Confession—Arrest. Where defendant is under arrest and makes statements or confessions, which are not reduced to writing and do not conform to the requirement of the statute and he takes the witness stand on the trial of the case, he can not he examined about statements of a criminative nature made hy him while so under arrest. Following Morales v. State, 36 Texas Grim. Rep., 234, and other cases. 3. —Same—Charge of Court—Passing Forged Instrument—Variance. Where, upon trial of forgery and passing a forged instrument, defendant was charged with passing said check on D, a charge of the court instructing the jury if the check was passed upon B, etc., to coavict defendant, was error.
71 Tex. Crim. 50Vick v. State (1913)
1. —Murder—Murder in Second Degree—Sufficiency of the Evidence. Whether the evidence is sufficient to sustain a verdict is a question of law, but this court does not pass upon the weight of the evidence or its credibility; these are questions for the jury, and where the evidence was sufficient to sustain the verdict, the conviction will be sustained. 2. —Same—Requested Charges—General Objections. Where no error is pointed out to the refusal of the court to submit special requested charges, but simply a general objection that they were refused, by number, the same can not be considered on appeal; yet, when considered, there was no reversible error. Following Byrd v. State, recently decided. 3. —Same—Charge as a Whole. Where, upon appeal from a conviction of murder in the second degree, the court’s charge when considered as a whole, was correct, there was no reversible error. 4. —Same—Accidental Killing—Charge of Court. Where, upon trial of murder in the second degree, the court gave a full and fair charge upon the question of accidental killing, a complaint that the court erred in failing to charge affirmatively on this issue is not well taken, and besides, is 'too general. 5. —Same—Charge of Court—Intent to Kill. Where, upon trial of murder in the second degree, the court, in his charge, specifically submitted the issue of intent to kill, there was no error in appellant’s complaint that he did not do so. 6. —Same—Charge of Court—Reasonable Doubt. Where, upon trial of murder in the second degree, the court submitted that offense together with manslaughter, negligent homicide of the first degree, accidental killing, reasonable doubt and reasonable doubt between different degrees, in a full and accurate charge, there was no error. 7. -—Same—Argument of .Counsel—Bills of Exception—Evidence. In the absence of bills of exception, complaints to the argument of counsel, and the admission of testimony, can not be considered on appeal. 8. —Same—Misconduct of Jury—Jury and Jury Law—Bills of Exception. In the absence of bills of exception, qualifications of jurors and the misconduct of the jury can not be considered on appeal; besides, a statement of facts heard on motion for new trial on the ground of the misconduct of the jury can not be considered where the same was not filed before the court adjourned. Following ICnight v. State, 64 Texas Grim. Rep., 541, and other cases. 9. —Same—Evidence—Former Conviction—Other Offenses. Where it Was made known to the court not in the hearing of the jury that defendant’s former conviction of another crime was too remote to be admitted in evidence, the court should not have allowed counsel for the State to interrogate defendant upon this question; however, as the error was harmless, there was no reversible error. Davidson, Presiding Judge, dissenting. 10. -—Same—Former Conviction—Remoteness of Conviction. See opinion for a discussion as to when a former conviction of other crimes is too remote to be admitted in evidence. 11. —Same—Former Conviction—Bill of Exceptions. Where it was shown by defendant’s bill of exceptions, as qualified by the court that in hearing the testimony of the jurors on the motion for new trial, it was shown that the matter of former conviction of defendant of other crimes had no effect on them and they did not, at the time of the trial, know that defendant had been convicted, and there was no showing that he had been prejudiced by this testimony, there was no reversible error. Following Roberts v. State, 48 Texas Grim. Rep., 210, and other cases. [Behearing denied June 18, 1913.—Beporter.]
71 Tex. Crim. 64Trinkle v. State (1913)
The opinion states the case.
71 Tex. Crim. 67Qualls v. State (1913)
1. —Abandonment — Seduction - Marriage — Indictment — Constitutional Law. Upon trial of abandonment after seduction and marriage, there was no error in overruling a motion to quash the indictment on the ground that the law was unconstitutional. Following Thacker v. State, 62 Texas Crim. Rep., 294. 2. —Same—Indictment—Woman—Words and Phrases—Misspelling. Where the indictment, upon trial of abandonment, etc., by a half dozen different allegations charged that the prosecutrix was a female, the misspelling of the word, “woman,” in one place of the indictment would not render the same defective. Following Bailey v. State, 63 Texas Crim. Rep., 584. 3. —Same—Indictment—Pleading. Upon trial of abandonment after' seduction and marriage, the indictment was not defective because in addition to alleging that defendant unlawfully abandoned his wife, it could have alleged that he refused to live with her, as either of the methods of abandonment named in the law is sufficient. 4. —Same—Variance—Pleading—Proof—Charge of Court—Jurisdiction. Where the indictment alleged that defendant unlawfully abandoned his wife after seduction and marriege, proof that he refused to live with her could not be made, it not being alleged, especially, where this matter involved the jurisdiction of the court; and this issue should have been submitted to the jury as requested. 5. —Same—Evidence—Opinion of Witness. While it was permissible to contradict defendant’s witness with reference to the declarations of his wife, yet opinion testimony was not admissible. 6. —Same—Evidence—Contradicting Witness. Where, upon trial of abandonment after seduction and marriage defendant testified that he was informed by his father that defendant’s wife had quit him, etc., and each side was contending to show that the other was in wrong in quitting, it was error to refuse to permit said father to testify that he had so told the defendant. 7. —Same—Evidence—Husband and Wife. The abandonment statute specifically authorized the wife who has been abandoned to testify, and there was no error in permitting her to do so. 8. —Same—Secondary Evidence—Letter. In order to admit the contents of a letter, it must be shown that the same can not be procured, etc. 9. —Same—Indictment—Pleading—Jurisdiction. See opinion suggesting that the district attorney secure another indictment so as to meet the question of jurisdiction.
71 Tex. Crim. 71Ex Parte Howell (1913)
The opinion states the case.
71 Tex. Crim. 75Joyce v. State (1913)
Theft—Sufficiency of the Evidence—Statement of Facts—Practice on Appeal. Where, upon appeal from a conviction of theft, complaints to the charge of the court and the insufficiency of the evidence can not be considered on appeal in the absence of a statement of facts.
71 Tex. Crim. 76Seymour v. State (1913)
1. —Misdemeanor Theft—Evidence—Hearsay. Statements of defendant’s wife in Ins absence and not offered as impeaching testimony were hearsay and inadmissible. 2. —Same—Chicken Theft—Insufficiency of the Evidence. Where, upon trial of theft of chickens, the evidence was insufficient to sustain the conviction, the judgment must be reversed and the cause remanded.
71 Tex. Crim. 77Roberts v. State (1913)
Occupation—Intoxicating Liquors—Local Option—Felony—Suspension of Sentence. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the court, upon defendant’s sworn plea, submitted the Act of March 4, 1913, with reference to suspension of sentence, and the jury failed to recommend in their verdict that the sentence he suspended and to affirmatively recommend the same m their verdict finding defendant guilty of a felony, there was no error in the court’s failure to suspend sentence. Following Monroe v. State, 70 Texas Crim. Rep., 245, and other eases.
71 Tex. Crim. 79Love v. State (1913)
The opinion states the case.
71 Tex. Crim. 83Gonzales v. State (1913)
Burglary—Statement of Facts. In the absence of a statement of facts, complaints to the sufficiency of the evidence, the admission of testimony, and the charge of the court can not be considered on appeal.
71 Tex. Crim. 84Hollins v. State (1913)
Carrying Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, defendant contended that he had the pistol at the time charged for the purpose of selling it, and the court fully submitted this matter to the jury, who, nevertheless, found the defendant guilty on sufficient evidence, there was no error.
71 Tex. Crim. 86Russell v. State (1913)
1. —Aggravated Assault—Insufficiency .of the Evidence—Deadly Weapon. Where, upon trial of aggravated assault alleging a deadly weapon, etc., there was no evidence that the stick used by the defendant was a deadly weapon or that serious bodily injury was inflicted, a charge of the court submitting the law of aggravated assault is reversible error. 2. —Same—Charge of Court—Self-defense. Where, upon trial of aggravated assault, the evidence showed self-defense, the court should have submitted this issue without any limitation, and erred in refusing a requested charge which correctly submitted the law. 3. —Same—Evidence—Res Gestae Statements. Upon trial of aggravated assault, the court erred in not admitting in evidence the res gestae statement of the defendant made a few minutes after the difficulty, while her wound was bleeding and she was laboring under the excitement incident to the difficulty. 4. —Same—Evidence—Moral Turpitude—Opinion of Witness. Upon trial of aggravated assault, it was error to permit defendant’s witness . to answer that his license as a saloon keeper had been forfeited, and his opinion that this was on account of keeping a house of prostitution.
71 Tex. Crim. 89Dunn v. State (1913)
1. —Aggravated Assault—Complaint—Name of Affiant—Complaint. It is not necessary to name the person swearing to the complaint in the body of the complaint, and the contention that the person named in the body of the complaint, is different from the one who signed it is not well taken. Following Maíz v. State, 36 Texas Grim. Rep., 447. 2. —Same—Misdemeanor—Bills of Exception—Requested Charge. In the absence of bills of exception in the record on appeal, complaints to the refusal of requested charges in a misdemeanor ease can not be considered. Following Brunk v. State, 60 Texas Grim. Rep., 263, and other cases. 3. —Same—General Objections—Motion for Hew Trial. Complaints in the motion for new trial stating that the court erred in failing and refusing to give certain special instructions, in the absence of bills of exception can not be considered on appeal. Following Ryan v. State, 64 Texas Grim. Rep., 628. 4. —Same—Charge of Court—Simple Assault. Where defendant was charged with aggravated assault, he can not complain that the court, in his charge, submitted simple assault, even if the evidence did not raise this issue, which it did. 5. —Same—Sufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence sustained the eon-, viction of simple assault, there was no error. 6. —Same—Charge of Court—Motion for He'w Trial. Where appellant ■ neither at the time nor in the motion for new trial pointed out error in the court’s charge, there was no error. 7. —Same—Information—Simple Assault. See opinion for an information which is held to be sufficient to support a verdict for simple assault. '
71 Tex. Crim. 92Sullivan v. State (1913)
The opinion states the case.
71 Tex. Crim. 93Mitchell v. State (1913)
The opinion states the case.
71 Tex. Crim. 94Pye v. State (1912)
T.—Forgery—Venue—Jurisdiction—Evidence. Where, upon trial of forgery, the defendant contended that he wrote and signed the alleged note in a county other than that of the prosecution, but the State showed that the note was payable and dated in the county of the prosecution, and that the defendant lived and did business there and the court properly submitted the issue of venue in his charge to the jury, there was no error on this ground. 2. —Same—Venue—Circumstantial Evidence. It has been held by this court that although proof of venue be wholly circumstantial, the court is not required to charge on circumstantial evidence as to venue. Following Stedhan v. State, 40 Texas Grim. Rep., 43. 3. —Same—Rule Stated—Venue. Where, from the evidence, the jury may reasonably conclude that the offense was committed in the county alleged, this court will not disturb their finding. Following Hoffman v. State, 12 Texas Grim. App., 406, and other cases. 4. —Same—Charge of Court—Requested Charges. Where, upon trial of forgery, there were circumstances in evidence upon which to base a finding of the jury that the venue was in the county of the prosecution, and the court submitted a proper charge thereon, there was no error in refusing special charges on this issue. Distinguishing Arrington v. State, 62 Texas Grim. Rep., 357; Smith v. State, 25 Texas Grim. App., 454; Miles v. State, 23 Texas Grim. App., 410. 5. —Same—Venue—Equitable Lien. Where an equitable lien could be secured and enforced on land in the county of the .prosecution, the venue was properly laid in said county. Article 235, Code Criminal Procedure. 6. —Same—Name of Party Injured—Idem Sonans. Where, upon trial of forgery, the prosecuting witness testified her name was “Rene Perry,” and the name signed to the alleged forged note was “Reen Perrey,” the names were idem sonans, and there was no error in permitting prosecutrix to testify that she had not signed the note or authorized any person to sign her name thereto. 7. —Same—Rule Stated—Misspelling. The law not regarding orthography, no harm comes from misspelling a name, provided it is idem sonans with the true spelling. Following Koontz v. State, 41 Texas, 570, and other cases. 8. —Same—Rule Stated—Idem Sonans. Where words pleaded and those proved can be sounded alike without doing violence to the power of the letters found in the variant orthography, a discrepancy between the pleading and proof will be disregarded, the true rule being that the misspelling to be material must have changed the word intended into another word having a different meaning, etc. Following Goode v. State, 2 Texas Grim. App., 520, and other cases. 9. —Same—Case Stated—Name of Party Injured. Where, upon trial of forgery, the defendant admitted on the witness stand that it was the name of “Rene Perry” he signed and intended to sign to the alleged note, etc., there was no error in permitting the prosecuting witness to testify that she had not signed the note and had not authorized defendant to sign her name to it. 10. —Same—Sufficiency of the Evidence. Where, upon trial of forgery, defendant admitted that he signed the prosecuting witness’ name to the alleged forged note, claiming that he thought he was authorized to do so, which prosecutrix denied, and there were other facts in evidence corroborating her testimony, the conviction was sustained. 11. —Same—Requested Charges. Where the requested charges were refused and so far as applicable to the case, were fully covered by the main charge, there was no error. 12. —Same—Indictment—Purport Clause. In an indictment for forgery, it was not' necessary to allege whose act it purported to be or who was intended to be defrauded, it being sufficient in other respects. Following Howard v. State, 37 Texas Crim. Bep., 494, and other cases. 13. —Same—Ex Parte Affidavits—Practice on Appeal. The Court of Criminal Appeals can not consider ex parte affidavits which counsel contend strongly support defendant’s testimony on the trial and going to the merits of the case and developed after- the trial, this is a matter for the trial courts and not for the Appellate Court.
71 Tex. Crim. 101Brookins v. State (1913)
The opinion states the case.
71 Tex. Crim. 108Rodriquez v. State (1913)
The opinion states the case.
71 Tex. Crim. 111Richardson v. State (1913)
The opinion states the case.
71 Tex. Crim. 113Brailaford v. State (1913)
The opinion states the case.
71 Tex. Crim. 116Cowart v. State (1913)
1. —Theft of Mortgaged Property—Evidence—Other Offenses—Impeachment. Where defendant took the witness stand, and the State, for the purpose of impeachment, was permitted to ask him on cross-examination as to other offenses which had no connection with the instant case, the same was reversible error. 2. —Same—Consent—Charge of Court. Where, upon trial of selling mortgaged property the issue was sharply drawn whether defendant had the consent of the mortgagee to sell the alleged mortgaged property, the failure to submit this issue was reversible error. 3. —Same—Charge of Court—Consent—"Written Order. Where, upon trial of fraudulently selling mortgaged property, evidence was introduced showing that the mortgagee had given defendant a written order to the county clerk to turn over the mortgage in question, which the mortgagee denied, etc., it was error in the court’s charge to instruct the jury that this would hot be any defense in the case, but could only show intent, etc., as the same affected the credibility of the witness and bore on the question of consent. 4. —Same—Evidence—Moral Turpitude—Other Offenses—Rebuttal. Where, upon trial of felony, the State was permitted to show that the defendant had been charged in other eases with embezzlement, the defendant should have been permitted to show that these cases had been dismissed, and that he had not been convicted of any felony.
71 Tex. Crim. 120Jefferson v. State (1913)
1.—Murder—Charge of Court—Definition of Homicide—Words and Phrases. Where appellant complained that the court used the expression in his definition of homicide: “the destruction of the life of one person by the act,” etc., instead of, “the destruction of the life of one human being,” there was no merit in the contention. 3.—Same—Charge of Court—Receiving Law from Court. Where the court charged that the jury must receive the law from the court, there was no error in the complaint that the court did not so charge. 3.—Same—Sufficiency of the Evidence. Where, upon a conviction of murder in the second degree, the evidence sustained the conviction, there was no error.
71 Tex. Crim. 121Nobles v. State (1913)
The opinion states the case.
71 Tex. Crim. 130Melton v. State (1913)
The opinion states the case.
71 Tex. Crim. 149Rogers v. State (1913)
1. —Arson—Continuance—Cumulative Evidence—Depositions! Where defendant’s application for continuance showed a want of diligence in not taking the depositions of the absent witness, it being defendant’s second application for continuance, and also showed that the absent testimony was cumulative in character, there was no error in overruling the motion. 2. —Same—Written Statement of Defendant—Arrest—Confessions. Where, upon trial of arson', it appeared that defendant testified before the grand jury when he was not under arrest and there made a written statement which was not a confession under 'the statute when under arrest, there was no error in admitting the same in evidence, although the same did not comply with the law as to written confessions. Following Bailey v. State, 65 Texas Grim. Rep., 1, and other cases. ' 3. —Same—Evidence—Insanity—Opinion of Witnesses. Where, upon trial of arson, defendant interposed the plea of insanity and introduced many witnesses in support thereof who testified as to their associations with defendant, etc., and then expressed their opinion, there was no error in permitting the State to introduce testimony in rebuttal and likewise' permitting the State’s witnesses to state their opinion that defendant was sane after detailing their dealings with him, their observation and knowledge, etc., and that they believed he knew right from wrong. Following Jordan v. State, 64 Texas Crim. Rep., 187, and other cases. 4. —Same—Misconduct of Jury—Discretion of Court—Impeaching Verdict • :—Pardon. Where the testimony taken upon the question of the misconduct of the jury as a whole showed that the jury did not receive or consider any evidence other than that properly admitted before them on the trial, there was no error on that ground. A juror will not be permitted to impeach his verdict .because the jurors had agreed to sign a recommendation for defendant’s pardon. Following Montgomery v. State, 13 Texas Crim. App., 74, and other cases. 5. —Same—Charge of Court—Charge as a Whole. Where, upon trial of arson, the charge of the court when taken as a whole correctly submitted all the issues raised by the evidence including that of insanity, .criticisms to various phrases in this charge are hypercritical, and there is no reversible error. 6. —Same—Charge of Court—Requested Charge. Where, upon trial of arson, the court fully charged on the issues raised by the evidence, and no additional charges were requested, there was no error. Following Dozier v. State, 62 Texas Crim. Rep., 258. 7. —Same—Sufficiency of the Evidence—Sanity of Defendant. Where, upon trial of arson, defendant pleaded insanity, but the evidence showed that he was sane .at the time of the commission of the offense, and amply sustained the verdict of conviction, there was no error. [Behearing denied June 18, 1913.—Beporter.]
71 Tex. Crim. 158Allen v. State (1913)
1.—Keeping Disorderly House—Evidence—Incompetent Testimony. Where, upon trial of keeping a disorderly house where spirituous and other liquors were sold and kept for sale without license, defendant contended that he had rented this house to a social club and was not concerned in the sale or keeping said liquors, and the court had sustained an objection to the question whether the witness had ever seen them close except when there was an injunction against them, but State’s counsel persisted in repeating this question until the witness finally answered in the affirmative, the same was reversible error, as the evidence in the injunction case was not shown to have been the same as that in the instant case. 2. —Same—Evidence—Name of Place. Where defendant claimed that he was not concerned or interested in the sale of intoxicating liquors, but that he had rented his place to a social club who were in control of the premises and conducting them, it was error to admit • testimony that these premises were known under the name of the defendant as Allen’s Garden. 3. —Same—Evidence—Irrelevant Testimony. Where the question was as to whether defendant or a social club was concerned in keeping the premises for the sale of liquor without license, testimony that the premises were located near a school building, etc.,- was inadmissible.
71 Tex. Crim. 162Dennis v. State (1913)
1.—Burglary—Night-time—Indictment. Where the indictment correctly charged burglary in the night-time according to approved precedent, the same was sufficient. Following Williams v. State, 24 Texas Crim. App., 69, and other cases. 3.—Same—-Motion to Postpone—Copy of Indictment. Where it did not appear from the record that defendant had not been served two days before the trial with a true copy of the indictment, there was no error on this ground. 3. —Same—Charge of Court—Daytime. Where, upon trial of burglary at night, the court’s charge required the jury that they must find that defendant entered the alleged house at night before they could find him guilty, there was no error in refusing a requested charge that they could not convict him for daytime burglary. 4. —Same—Name of Party Injured—Idem Sonans. Where the different names by which the owner was named in the indictment and was known were idem sonans, there was no variance, and there was no error in refusing a special charge thereon. Following Feeny v. State, 62 Texas Crim. Bep., 585, and other cases. 5. —Same—Circumstantial Evidence—Charge of Court—Article 743, C. C. P. Where, upon trial of burglary, the evidence, although circumstantial, showed without dispute the guilt of the defendant and no special charge was requested on circumstantial evidence, and no exception made to the court’s failure to charge thereon except in the motion for new trial, there was no reversible error, under article 743, Code Criminal Procedure. Davidson, Presiding Judge, dissenting. 6. —Same—Charge of Court—Insanity. Where, upon trial of burglary, defendant’s only defense was insanity and the court properly submitted this issue, and the evidence sustained the conviction, there was no error. 7. —Same—Circumstantial Evidence—Sufficiency of the Evidence—Article 743, C. C. P. Where, upon trial of burglary, the evidence was entirely circumstantial, but established defendant’s guilt, the court’s failure to instruct on circumstantial evidence was harmless error under article 743, Code Criminal Procedure. 8. —Same—Night-time Burglary—Want of Consent—Breaking. Where the indictment alleged a night-time burglary by force and breaking, it was unnecessary to either allege or prove in specific terms the want of the owner’s consent. Following Sullivan v. State, 13 Texas Crim. App., 462, and other eases. 9. —Same—Sufficiency of the Evidence—Force—House. Where, upon trial of burglary by night, the evidence sustained the conviction and showed that the alleged entry was made by opening a door, it was not necessary to show actual breaking. Articles 1306, 1308, Penal Code, and where the evidence was sufficient to sustain the conviction, and that the room entered was a house defined by statutes, there was no error. [¡Rehearing denied June 37, 1913.—Keporter.]
71 Tex. Crim. 168Ballard v. State (1913)
1. —Theft of Cattle—Circumstantial Evidence—Charge of Court—Article 743—Alibi. Where the court’s failure to charge on circumstantial evidence was not such error as was calculated to injure the rights of the defendant, the case will not he reversed under article 743, .Code Criminal Procedure, as the omission of such charge, in the light of the court’s charge on alibi and other portions of his charge, did not present reversible error. Davidson, Presiding Judge, dissenting. 2. —Same—Court’s Failure to Charge on Circumstantial Evidence Hot Error. Where, upon trial' of theft of cattle, the taking of the alleged property, the driving of the animal from the owner’s pasture and that it was butchered; that the hide corresponded with the animal taken; that defendant and another were seen with beef in his hack, etc., was all shown by positive testimony, the court’s failure to charge on circumstantial evidence was not reversible error. Davidson, Presiding Judge, dissenting. [Rehearing denied October 22, 1913.—Reporter.]
71 Tex. Crim. 179Law v. State (1913)
The opinion states the case.
71 Tex. Crim. 181Veach v. State (1913)
The opinion states the case.
71 Tex. Crim. 183Thomas v. State (1913)
1. —Murder—Statement of Facts. Where, upon appeal from a conviction of murder with the death penalty assessed, the statement of facts was filed too late in the lower court, the same can not be considered on appeal. 2. —Same—Murder in the Second Degree—Charge of Court—Sudden Transport of Passion. The use of the words “in a sudden transport of passion,” in the court’s charge on murder in the second degree is not reversible error. Overruling Kannamacher v. State, 51 Texas Grim. Rep., 118. Following Waters v. State, 54 Texas Grim. Rep., 322, and other cases. 3. —Same—Charge of Court—Murder in Second Degree. Where the court’s charge on murder in the second degree did not contain the words “unlawful” or the expression “upon malice implied or malice aforethought,” but set forth all the elements of murder in the second degree in applying the law to the facts, the same was sufficient. Following Davis v. State, 57 Texas Grim. Rep., 545, and other eases, especially, in the absence of a statement of facts. 4. —Same—Self-Defense—Charge of Court. In the absence of a statement of facts, where the court’s charge on self-defense with reference to the relative strength of the parties may have been applicable to the evidence, there was no error. [Rehearing denied October 22, 1913.—Reporter.]
71 Tex. Crim. 185Mitchell v. State (1913)
1.—Local Option—Charge of Court—Alibi. Where, upon trial of a violation of the local option law, the evidence did not raise the issue of an alibi, but defendant denied making the sale testified to by State’s witnesses, and the issue was sharply drawn whether there was a sale made, it was error to submit the law of alibi. 2. —Same—Limiting Testimony—Charge of Court. Where the State was permitted to introduce testimony as to other sales in a trial of a violation of the local option law, and such testimony was not limited by the court’s charge, the same was error. Harper, Judge, and Prendergast Judge, dissenting. 3. —Same—Alibi—Sale—Charge of Court. Where the charge of the court on alibi was assuming an issue in the case, which was not raised by the evidence, and the ease turned around the question whether a sale had been made, the same was reversible error.
71 Tex. Crim. 189Lyons v. State (1913)
The opinion states the case.
71 Tex. Crim. 195Pinkerton v. State (1913)
1.—Burglary—Sufficiency of the Evidence—Accomplice—Corroboration. Where, upon trial of burglary, the evidence was sufficient to sustain the conviction and the accomplice was amply corroborated, there was no" error. Z.—Same—Evidence—Accomplice. Upon trial of burglary, there was no error in admitting testimony of a State’s witness that he went with the accomplice to where he said defendant and he had hid the pocket-knives, in a little hole, and that they found a hole, but no knives; the accomplice having testified that he and the defendant on the morning after the burglary hid the knives in that place, etc. 3. —Same—-Evidence—Tracks—Comparison. Upon trial of burglary, there was no error in introducing testimony about certain horse tracks that were found on the ground shortly after the burglary and near the scene thereof, and also as to certain buggy tracks, as this testimony was not intended as a comparison of tracks; besides, the case was not one of circumstantial evidence. 4. —Same—Evidence—Accomplice—Conspiracy. Where the State was not attempting to prove by. other and independent witnesses what the accomplice himself had said to other witnesses, and was not attempting to introduce the confessions of the accomplice to show a conspiracy to commit a crime, but introduced testimony of the accomplice himself, there was no error. 5. —Same—-Evidence—Rule Stated. Even if there had been some particular portion of the testimony inadmissible, yet where defendant made no specific objections to that, but objected to the whole of it, there was no reversible error. Following Ortiz v. State, 151 5. W. Rep., 1056, and other cases. 6. —Same—Evidence—Stolen Property. Upon trial of burglary, there was no error in admitting testimony that some of the alleged stolen property was found under a school-house after it had disappeared from the place where defendant and the accomplice had first h'id it. 7. —Same—Charge of Court—Principals—Article 743. Where, upon trial of burglary, the accomplice testified that he kept watch while the defendant was committing the burglary, and the court submitted this phase of the case in his charge on principals, there was no error under article 743, Code Criminal Procedure; defendant receiving- the lowest penalty. 8. —Same—Imputing Crime to Another. Where, upon trial of burglary, there was no evidence raising the issue that another person than defendant had committed the burglary, there was no error in the court’s failure to submit the question of imputing crime to another. [Rehearing denied October 22, 1913.—Reporter.]
71 Tex. Crim. 204Betts v. State (1913)
1. —Murder—Continuance—Record. Where the motion for continuance is not in the record, the same can not be reviewed; besides, there was no error in overruling same. 2. —Same—Evidence—Precedent. Where the testimony objected to was held admissible upon former appeal, there was no error. 3. —Same—Charge of Court—Manslaughter. Where the court defined manslaughter and no objection was pointed out to said charge, there was no error. 4. —Same—Charge of Court—Aggravated Assault. Where the complaint to the charges of the court were passed upon on former appeals and the question of aggravated assault was submitted as favorable as the evidence authorized, and the verdict supported a conviction for manslaughter, there was no reversible error. [Rehearing denied October 33, 1913.—Reporter.]
71 Tex. Crim. 206Johnson v. State (1913)
1. —Embezzlement—Indictment. Where, upon trial of embezzlement, the indictment followed approved precedent, there was no error. Following Golden v. State, 22 Texas Grim. App., 1, and other cases. 2. —Same—Theft by Bailee—Embezzlement—Distinction. Under article 1329, Penal Code, there must be a fraudulent taking, and a bailee can not be guilty of embezzlement unless there exists some fiduciary or trust relations between the bailor and bailee, and this necessitated the passage of article 1357, Penal Code, making conversions by bailee an offense, as for theft, to fill the hiatus existing between theft and embezzlement under our decisions. Discussing Reed v. State, 16 Texas Grim. App., 586. 3. —Same—Rule Stated—Fiduciary Relations—Bailment. In each case the court must look to see whether or not a trust or fiduciary relation exists between the parties, and if it does exist, then the conversion by bailee constitutes embezzlement, otherwise it is theft by bailee. 4. —Same—Case Stated—Boarding House Keeper—Boarder. Where defendant was the keeper of a boarding house and one of his boarders deposited money with him for safe keeping to be returned on demand, this would establish such relations between the parties as would constitute the appropriation of the money to his own use embezzlement. 5. -—Same—landlord’s lien-—Fiduciary Relations. The law gives the landlord a lien oh all the property of his boarders deposited with him to secure him in the payment of his board bill, and this necessarily produces fiduciary relations between them. [Behearing denied October 15, 1913.—Beporter.]
71 Tex. Crim. 209Long v. State (1913)
Murder—Statement of ¡Facts. In the absence of a statement of facts, criticism of the court’s charge can not be considered on appeal. [Behearing denied October 15, 1913.—Beporter.]
71 Tex. Crim. 209Potter v. State (1913)
The opinion states the case.
71 Tex. Crim. 210Swann v. State (1913)
The opinion states the case.
71 Tex. Crim. 211Ely v. State (1913)
The opinion states the case.
71 Tex. Crim. 212Brown v. State (1913)
The opinion states the case.
71 Tex. Crim. 212Martin v. State (1913)
Burglary—Suspended Sentence Act—Practice on Appeal. Where, upon trial of burglary, the defendant invoked the suspended sentence Act of the Thirty-third Legislature, which was submitted by the court, and the jury under the evidence found defendant guilty and assessed his punishment at four years imprisonment in the penitentiary, with recommendations to suspend the sentence, which the court refused to do, the cause must be remanded with instructions to comply with the verdict of the jury. Following Baker v. State, 70 Texas Grim. Rep., 618, recently decided.
71 Tex. Crim. 213Silvas v. State (1913)
71 Tex. Crim. 236Cox v. State (1913)
Gaming—Jury Commissioners. Where the County Court tailed to appoint jury commissioners for the next term of court on account of death of the clerk of the court, and at such subsequent term ordered the sheriff to select the jurors, there was no error under article 715, Code Criminal Procedure. Following Colombo v. State, 65 Texas Grim Hep., 608, and other cases.
71 Tex. Crim. 237Stewart v. State (1913)
1. —Murder—Argument of Counsel. Where the bill of exceptions did not disclose the error with reference to argument of State’s counsel, and no charges were requested, and the record showed that the State’s counsel may have properly used the language objected to, there was no reversible error. Following Clayton v. State, 67 Texas Grim. Rep., 311. 2. —Same—Corpus Delicti—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the corpus delicti was amply proved and the evidence was otherwise sufficient to sustain the conviction, there was no error. 3. —Same—Charge of Court—Manslaughter. Where, upon the trial .of murder, the evidence raised the issue of manslaughter for which the defendant was .convicted, there was no error, and he was in no condition to complain, even if the evidence established murder. Following Woodward v. State, 54 Texas Grim. Rep., 86. 4. —Same—Charge of Court—Manslaughter—Deadly Weapon. Where, upon trial of murder and a conviction of manslaughter, the court correctly submitted a charge on manslaughter, and also what constituted a deadly weapon, more favorably than the law required, and did not assume that the evidence was true, there was no error. 5. —Same—Self-defense—Charge of Court. Where, upon trial of murder, the court’s charge on self-defense was more favorable than the law authorized, defendant could not complain, and there was no error.
71 Tex. Crim. 241Mitchell v. State (1913)
1. —Local Option—Change of Venue—Bills of Exception—Statement of Facts. Where the facts presenting the question of change of venue, and bills of exception with reference thereto, were not filed during term time, the same could not be considered on appeal. 2. —Same—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no error. 3. —Same—Election—Evidence—Law in Force. Where, upon trial of k violation of the local option law, all the matters appertaining to the election for local option were introduced in evidence showing that prohibition was in force, there was no error; and such election could not be affected by the result of another election in another precinct, and would not constitute an election over the whole county; neither could the fact of a general election in the county, less than two years before said election in said precinct affect the same. 4. —Same—Excessive Punishment. The penalty of imprisonment in the penitentiary for a violation of the local option law, as fixed by the Legislature, is not excessive. 5. —Same—Charge of Court—Alibi—Reasonable Doubt. Where, upon trial of a violation of the local option law,'the court properly submitted the law upon alibi, reasonable doubt, etc., there was no error on those grounds.
71 Tex. Crim. 243Hewitt v. State (1913)
The opinion states the case.
71 Tex. Crim. 253Anderson v. State (1913)
Local Option—Jury Commissioners—Indictment. Where the indictment was found by a grand jury which had not been duly drawn by a legally constituted jury commission, the same was insufficient, and bad on motion in arrest of judgment.
71 Tex. Crim. 254Mitchell v. State (1913)
The opinion states the case.
71 Tex. Crim. 255Nagle v. State (1913)
The opinion states the case.
71 Tex. Crim. 256Rupard v. State (1913)
1. —Retailing Liquors Without License—Recognizance—Certiorari. Where the appeal was dismissed for defective recognizance, whereupon an amended recognizance was filed, and the motion to grant a writ of certiorari to give appellant time to substitute the lost papers, after much delay, was finally complied with, but no error appeared of record, the cause is affirmed. 2. —Same—Practice on Appeal. Where the bills of exception which were granted by the court presented no error, either on the facts admitted in evidence or as to the information, the cause must-be affirmed.
71 Tex. Crim. 259Love v. State (1913)
1. —Carrying Pistol—Absence of Defendant—Practice in County Court. - Under article 646, Code of Criminal Procedure, the defendant who was charged with unlawfully carrying a pistol had the right to be personally present when his ease was called and tried, and the court had no power or authority to try him in his absence over his attorney’s objection, he not having waived his presence. 2. —Same—Charge Of Court—Waiver of Jail Penalty. While it may not have been improper for the county attorney to have insisted upon a fine only and not upon a jail sentence, yet it was not proper for the court to so tell the jury in liis charge.
71 Tex. Crim. 260Drummond v. State (1913)
The opinion states the case.
71 Tex. Crim. 261Pope v. State (1913)
1.—Embezzlement—Sufficiency of tbe Evidence—Sale—Consignment. Where, upon trial of embezzlement, the issue was sharply contested as to whether the goods were sold to defendant on a credit, or were placed with him on consignment, and the court fairly submitted that issue to the jury, who found against him, there was no reversible error. 8.—Same—Husband and Wife—Consignee. Where the trade was with the defendant, and it was understood by him and the consignor that the name of defendant’s wife would be used to keep creditors from interfering, but the goods were delivered to him and not to his wife, he was the consignee in law. 3. —Same—Evidence—Compromise. Upon trial of embezzlement, the court did not err in excluding evidence of offers to compromise after the embezzlement had taken place and the prosecution begun. 4. —Some—Charge of Court—Definition of Consignee. Where, upon trial of embezzlement, the State’s testimony showed that the defendant held the alleged embezzled goods as consignee, there was no error in the court’s failure to give a definition of the word, “consignee,” in the absence of requested instructions; the court properly submitting the law applicable to the case. 5. —Same—Rehearing— Stating Eacts in Opinion. Where appellant in his motion for rehearing insisted that the appellate court had not correctly stated the facts upon which it based its conclusion, to the effect that the State’s evidence showed that the defendant held the alleged embezzled goods on consignment, but the record showed that this court was correct in stating the facts upon which it based its conclusion, and that appellant’s attorney was in error, there was no reversible error. 6. —Same—Evidence—Compounding Crime—Compromise. Upon trial of embezzlement, there was no error in excluding testimony that after the arrest of the defendant, the consignors had made tentative propositions of compromise; even if they had gone so far as to compound the crime under article 422, Penal Code, and rendered themselves liable to criminal prosecution, this would be no justification for defendant in committing the crime of embezzlement, and such testimony was inadmissible for any purpose.
71 Tex. Crim. 268Mangum v. State (1913)
The State’s testimony showed.that defendant assaulted the alleged female, who was a child of tender years, and attempted to have carnal intercourse with her; while the defendant denied all the'testimony of the State’s witness.
71 Tex. Crim. 268Ray v. State (1913)
The opinion states the case.
71 Tex. Crim. 269Hooks v. State (1913)
The opinion states the case.
71 Tex. Crim. 271Rogers v. State (1913)
1. —Assault to' Murder—Charge of Court—Provoking the Difficulty—Intent to Kill. Where, upon appeal from a conviction of assault to murder, defendant complained of the court’s charge in submitting the issue of provoking the difficulty that he had failed to submit the issue of defendant’s want of intent to kill, the evidence showed that the defendant made the assault with a deadly weapon with such an intent, there was no error, as under article 51, Penal Code, the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the" commission of the forbidden act, etc. Following McCoy v. State, 25 Texas, 33, and other eases. 2. —Same—Manslaughter—Charge of Court. Where, upon trial of assault with intent to murder, the evidence did not raise the- issue of adequate cause, there was no error in the court’s failure to submit the law of manslaughter. 3. —Same—Charge of Court—Aggravated Assault. Where, upon trial of assault with intent to murder, the evidence did not raise the issue of aggravated assault, there was no error in the court’s failure to charge thereon. 4. —Same—Charge of Court—Provoking the Difficulty—Sufficiency of the Evidence. Where, upon trial of assault to murder, the facts and eireumstanpes in evidence all pointed to the fact that the defendant sought the party injured with a deadly weapon to engage in a deadly affray, the same raised the issue sufficiently to authorize the court to submit the law of provoking the difficulty, and the evidence sustaining the conviction of assault to murder under a proper charge, there was no error. Following Cartwright v. State, 14 Texas Grim. App., 4S6, and other cases. Davidson, Presiding Judge, dissenting. . 5.—Same—Self-defense—Charge of Court. Where, upon trial of assault to murder, the evidence raised the issue of provoking the difficulty and the court submitted this issue and the converse proposition thereof, and also submitted tire law of self-defense in that event, there was no reversible error; Davidson, Presiding Judge, dissenting.
71 Tex. Crim. 281Pendley v. State (1913)
Theft of Hog—Charge of Court—Original Taking—Principal—Alibi. Where, upon trial of theft of a hog, the questions of principal, original talcing, alibi and receiving stolen property were raised by the evidence, the court’s failure to charge on these matters present reversible error, defendant having availed himself in due time of these defects in the court’s charge. Following Kaufman v. State, recently decided, and other cases.
71 Tex. Crim. 283Rust v. State (1913)
The opinion states the case.
71 Tex. Crim. 285Ex Parte Ellerd (1913)
From Hale County. Original writ of habeas corpus asking release under a writ of commitment for contempt from the District Court, for $250. The opinion states the' case.
71 Tex. Crim. 297Jackson v. State (1913)
The opinion states the case.
71 Tex. Crim. 299Sneed v. State (1913)
The opinion states the case.
71 Tex. Crim. 300Campbell v. State (1913)
The opinion states the case.
71 Tex. Crim. 301Ex Parte Lynchard (1913)
Rape—Bail—Penalty-—Incest. Where, upon habeas corpus, relator was charged with rape and denied bail, it appeared from the evidence that he might have been indicted for incest upon the same transaction which would have been bailable, it is proper that bail should not be denied, no force having been used.
71 Tex. Crim. 302Partridge v. State (1913)
1.—Catching Fish—Information. Where, upon trial of unlawfully catching fish upon the enclosed lands of another, etc., the complaint and information followed the statute, the same was sufficient. Following Berry v. State, recently decided. 3.—Same—Statement of Facts. Where the statement of facts was filed too late in the court below, the same can not be considered on appeal. Following Durham v. State, recently decided.
71 Tex. Crim. 303Mares v. State (1913)
The opinion states the case.
71 Tex. Crim. 307Templeton v. State (1913)
1.—Catching Fish—Information—No Repeal. A motion to quash the information and complaint charging defendant with unlawfully catching fish, etc., on the ground that i the Act upon which they were based had been repealed by a subsequent Act of the Legislature was correctly overruled. 8.—Same—Sufficiency of the Evidence—Statement of Facts. In the absence of a statement of facts, the same not having been filed in time, the insufficiency of the evidence and requested charges can not he considered; however, if considered, there was no error.
71 Tex. Crim. 308Stephens v. State (1913)
1. —Catching Fish—Statement of Facts. Where the statement of facts in a misdemeanor case was filed more than twenty days after adjournment of court, it can not be considered on appeal. 2. —Same—Information. Where, upon trial of unlawfully catching fish, the complaint and information were properly drawn under article 1235, Revised Penal Code, the same were sufficient.
71 Tex. Crim. 309Wilson v. State (1913)
The opinion states the case.
71 Tex. Crim. 310Ward v. State (1913)
1. —Arson—Evidence—Imputing, Crime to Another. Upon trial of arson, where the evidence was entirely circumstantial, it was error not to admit testimony that one of the State’s witnesses had been threatened by certain parties in the neighborhood and that others than the defendant had a motive to set fire to the house in which the witness lived, and which was set on fire the night one of the houses was burned. 2. —Same—Buie Stated—Circumstantial Evidence. A person accused of crime may show motive, reasons and opportunity on the part of others to commit the crime and, especially so, in cases of circumstantial evidence. Following Dubose v. State, 10 Texas Grim App., 230, and other cases. 3. —Same—Imputing Crime to Another—Charge of Court. Where, upon trial of arson, there was some evidence introduced that others than defendant bad motive, reason and opportunity to commit the crime, the court should have submitted a charge thereon. 4. —Same—Imputing Crime to Another—Evidence, " Where, upon trial of arson, the position, opportunities and reasons were as strong on part of others as the defendant to commit the offense, and the State’s evidence was entirely circumstantial, the defendant should have been permitted to introduce such testimony. 5. —Same—Insufficiency of the Evidence. See opinion wherein the Presiding Judge holds that the evidence is insufficient to support the conviction. 6. —Same—Stating Facts in Opinion. Where this court did not state the' facts correctly with reference to the names of State’s witnesses, but such mistake was immaterial and could not change the conclusions of this court reached in the opinion, there was no error. 7. —Same—Buie Stated—Imputing Crime to Another. Where the accused is confronted with facts that are thought to be criminative he has the same right to meet those facts as the State had in the first instance to place them in evidence before the jury, and where defendant sought to show that others had the same opportunity and reasons to commit the crime than he, and the evidence was entirely circumstantial, he should have beep permitted to do so.
71 Tex. Crim. 318Fox v. State (1913)
1. —Murder—Continuance—Immaterial Testimony. Where defendant’s application did not show the materiality of the alleged . absent testimony, with reference to an alibi of a party whom the State did not claim was at the homicide, there was no error in overruling same. 2. —Same—Bill of Exceptions. Where the court below states that the allegations of the hill of exceptions are wholly incorrect, the matter presents no error.- 3. —Same—Evidence—Insult to Female Relative. Where, upon a trial of murder and conviction of manslaughter, the de- ■ fendant claimed insult to his wife hy the deceased, there was no error in permitting the State to show that the general reputation of defendant’s wife for virtue and chastity was bad in the community in which he lived. Art. 1134, Penal Code. 4. —Same—^Evidence—General Reputation. Where defendant’s witnesses testified that his reputation for truth and veracity was good and that they had never heard his reputation' questioned, there was no error in permitting the State to show that defendant’s veracity was questioned by witnesses in a certain damage suit. 5. —Same—Evidence—Beading Questions. While the State should not have been permitted to ask leading questions, yet where the evidence was, nevertheless, admissible and was not very material, the matter presents no reversible error. 6. —Same—Evidence—Ill-will of Deceased. Where defendant testified that deceased, while deputy sheriff, had refused to approve a certain bond, which defendant presented to him, to show the ill-will of deceased, there was no error to permit the State, on cross-examination, to show that deceased refused to receive the bond because it was insufficient. 7. —Same—Charge of Court—Going Armed—Explanation. Where, upon trial of murder, there was testimony that the deceased had made insulting remarks about defendant’s wife; that thereupon, defendant armed himself and went in search of deceased to demand an explanation of him; that the latter gave him no opportunity, but reached for his pistol, when defendant shot and killed him, there was no error in the court’s failure to submit this matter to the jury, the court having given a full and fair charge on self-defense without any limitation. Following Williford v. State, 38 Texas Grim Rep., 303, and other cases. 8. —Same—Charge as a Whole—Self-defense—Serious Bodily Injury. Where, upon trial of murder and a conviction of manslaughter, the court gave a full and fair charge on self-defense, when considered as a whole, criticisms of phrases in the charge, and that the court omitted to present serious bodily injury as a ground of self-defense, were untenable, and there was no error. 9. —Same—Presumption—Deadly Weapon. Where the 'defendant testified that deceased not only reached for his pistol, but got it and dropped it, the court did not err in charging on presumption arising from the use of a weapon. 10. —Same—Sufficiency of the Evidence. Where, upon a trial of murder and a conviction of manslaughter, the evidence sustained the conviction, under a proper charge of the court, there was no error.
71 Tex. Crim. 325Finch v. State (1913)
The following statement by the Assistant Attorney-General is substantially correct: Appellant was the former husband of Mrs. Della Finch, by whom he had a boy six years of age, who at the time of this difficulty was residing with his mother, Mrs. Finch. Appellant and Mrs. Finch at the time of the difficulty had been divorced about a year and the deceased had been paying court to Mrs. Finch, and at the time he was killed was engaged to her.
71 Tex. Crim. 330Wilson v. State (1913)
The opinion states the case.
71 Tex. Crim. 335Palmer v. State (1913)
The opinion states the case.
71 Tex. Crim. 341Dreeben v. State (1913)
1.—Forgery—Confederate Pension Warrant—Indictment—Indorsement— Non-negotiable Paper. Where the alleged written instrument was a Confederate pension warrant and the forgery was alleged to consist in defendant’s signing and forging the names of the payees on the hack of said warrant, the false indorsement so made would, if the same were true, have created a pecuniary obligation, whether said warrant was negotiable or non-negotiable, and was, therefore, the subject of forgery, and the indictment being otherwise sufficient, there was no error in • overruling a motion to quash. ■2.—Same—Pleadings—Rule Stated. The trend of modern decisions is to look rather to the substance than to the form that such instruments may take, and in latter times, the niceties of pleading in prosecutions for forgery have not always been recognized. Following Forcy v. State, 60 Texas Grim. Rep., 209. 3. —Same—Case Stated—Counter Signature. Where the said warrant was a Confederate pension warrant, the alleged forged indorsement of the name of payees in blank did affect the legal status of the paper, although it was not countersigned by tlie State Treasurer and though the same may not have been negotiable under the terms of the law. 4. —Same—Statutes Construed—Appropriation. Under the various acts affecting the issuance of Confederate pension warrants, the General Appropriation Act of the Legislature making the appropriation therefor, entirely superseded the former Act of Appropriation, so that the Comptroller, in issuing the pension warrant, properly stated therein that the money was to be paid out of the appropriation of said general Appropriation Act, and this did not invalidate tlie indictment. 5. —Same—Pension Warrants—Other Warrants. It is perfectly apparent by the provisions of the several acts affecting the issuance of Confederate pension warrants, .that the Legislature .intended to make, and did make, a distinction of pension warrants from any and all other pay warrants issued by the Comptroller, and it was not necessary that the State Treasurer should countersign them so as to make them valid and payable, and the indictment was not insufficient on this-ground. 6. —Same—Uegotiable Paper—Indictment. The Comptroller, under the power and authority given him under the law, was not prevented from making a Confederate pension warrant negotiable, or at least, quasi-negotiable, on account of the manner in which these warrants were issued under the law to the various pensioners throughout the State, it being practically impossible for the holders of these warrants to present them in person at tlie Treasury for payment, and the indictment was not defective on this ground. . 7. —Same—Indorsement—Sufficiency of the Indictment. Under article 933, Penal Code, in connection with other articles of said Code on the subject, it is forgery to make, with intent to defraud or injure, a written instrument by filling up over a genuine signature or by writing on the opposite side of a paper so as to make the signature appear as an indorsement, and the false indorsement of the payees’ names on a Confederate pension warrant would come within the scope of forgery as set out in the indictment. 8. —Same—Rule Stated—Forgery Defined. The false instrument must be such as, if true, would be of same real or legal efficacy, that is, that it must either be in fact or must appear to be of legal validity, but it need not have both the appearance and the reality. Following King v. State, 42 Texas Crim. Rep., 108, and other cases. 9. —Same—Case Stated—Indictment. Where the forgery alleged was the false indorsement of the names of the payees on a certain Confederate pension warrant, it was immaterial whether said warrant was negotiable or non-negotiable, and said indorsement, as set out in the indictment, was. the proper subject of forgery, and defendant’s motion to quash the indictment on this ground was properly overruled. 10. —Same—Sufficiency of the Evidence. Where, upon trial of forgery of the indorsement of a certain Confederate pension warrant, the evidence sustained the conviction, there was no reversible error. 11 .—Same—Evidence—Affidavits— W arrant. Where, upon trial of forgery of the indorsement of the payees on a certain Confederate pension warrant, the court admitted in evidence certain forged affidavits in connection with said warrants, all of which were properly indentified, there was no error. 12.—Same—Charge of Court—Affidavits—Warrants. Where, upon trial of forgery of an indorsement upon a certain Confederate pension warrant, certain affidavits which were necessary to procure said warrant, which were also forged, were admitted in evidence, there was no error in the court’s charge instructing the jury of what effect and for what purpose the said affidavits were admitted in evidence. [Rehearing denied June 27, 1913.—Reporter.]
71 Tex. Crim. 353Brown v. State (1913)
1. —Fraudulent Banking—Deposit—Indictment—Private Bank. Where the indictment alleged that the bank was an unincorporated private bank; that defendant was the owner thereof; that the same was insolvent and that defendant was insolvent, the contention that the' indictment failed to allege the names of the persons composing the bank is untenable, and the indictment, under article 532, Penal Code, is sufficient. 2. —Same—Evidence—Knowledge of Defendant. Upon trial of permitting a deposit to be made after the bank was insolvent, there was no error in admitting testimony that such, deposit was made as alleged in the indictment, and this although defendant was not present; the evidence showing that defendant established the bank and was the sole owner thereof. 3. —Same—Refreshing memory—Insolvency—Books. Where, upon trial of fraudulent banking, a witness had testified that he ivas the cashier of the bank and correctly kept the books thereof, it was legitimate for the State to show by said witness, refreshing his memory from books so kept by him, the amount, character and value of the resources of said bank, and the debts and liabilities of said bank on the date it closed its doors. 4. —Same—Evidence—State Banking Commissioner—Insolvency—Other Transactions. Upon trial of receiving deposits in a private bank after its insolvency, there was no error in admitting the testimony of the State banking commissioner to show that the defendant owned a State bank which was also insolvent at the time of the failure of defendant’s private bank, and to permit said official to make such statements from the books of the bank and the data therein; besides, he testified that the same was correct. 5. —Same—Evidence—Banking Commissioner. It was also permissible to show by the' State banking commissioner what property of the defendant he received and the investigations he made as to its condition and value, to show whether or not defendant was insolvent; besides, the bill of exceptions was defective. 6. —Same—Evidence—Other Transactions.' Upon trial of fraudulent banking, it was permissible to show the property and assets of another bank owned by the defendant and that no capital was paid in at the time of its organization to show the insolvency of the bank in which deposits were received after insolvency, and in this connection the, productive capacity of the different plants could be shown, in order to ascertain the real value, etc. 7. —Same—Market Value—Intrinsic Value. Upon trial of fraudulent banking, where the value of the property involved was concerned, the instrinsie value of the property could be shown where there was no market value. 8. —Same—Charge of Court. Upon trial of fraudulent banking, where the evidence sustained the conviction, there was no error in refusing a peremptory charge to acquit. 9. —Same—Knowledge of Defendant—Insolvency—Deposits. Where defendant opened a private bank, the business of which was to receive deposits, he will be held in law to have given his assent to the reception of each and every deposit made in the bank, and there was no error in refusing a special charge to acquit the defendant if he was not personally present when the alleged deposit was made. 10. —Same—Charge of Court—Time of Deposit. Where, upon trial of receiving deposits in a private bank after the same was insolvent, the court submitted a proper charge on the facts in evidence, there was no error, and the contention that there was error in the charge in stating that if the bank received the money after defendant knew the bank was insolvent, etc., as not fixing the time properly, is hypercritical. 11. —Same—Charge of Court—Insolvency—Prima Facie Evidence. Under article 532, Penal Code, the failure of a private bank is prima facie evidence of knowledge of the owner that the same was insolvent or in failing circumstances when the money was received on deposit, and there was no error in the court’s charge to so instruct the jury. 12. —Same—Charge of Court—Insolvency. Where, upon trial of illegally receiving deposits in a private bank after the same was in failing circumstances, the court properly defined insolvency, failing circumstances, etc., and did not charge upon the weight of the evidence and there were no requested charges, there was no error. 13. —Same—Knowledge—Deposit. Upon trial of receiving deposits after insolvency in a private bank, there was no error in the court’s failure to instruct the jury that defendant must have had knowledge of this individual deposit and given his personal assent thereto before the jury could convict him; as defendant will be held to have assented thereto from the fact that he opened the bank and was the owner thereof. 14. —Same—V enue—Presumption. Where the question of venue was not made an issue during the trial and reserved by proper bill of exceptions, this court under article 938, will presume that the venue of the offense is proved as alleged. 15. —Same—Evidence—Bills of Exception. In the absence of bills of exception to the admissibility of evidence, the same can not be considered on appeal. 16. —Same—Continuance—Reversible Error. Where, upon trial of receiving unlawful deposits in a private bank after its insolvency, defendant’s application for a continuance showed due diligence and that the testimony of the absent witnesses was material in showing the solvency of the bank, it was reversible error to overrule same and a new trial should have been granted.
71 Tex. Crim. 369Criner v. State (1913)
The opinion states the case.
71 Tex. Crim. 370Easter v. State (1913)
The opinion states the case.
71 Tex. Crim. 371Figueroa v. State (1913)
The opinion states the case.
71 Tex. Crim. 374Matthews v. State (1913)
1. —False Imprisonment—Sufficiency of the Evidence. Where, upon appeal from a conviction of false imprisonment, the evidence sustained the same, there was no error. 2. —Same—Indictment—Transfer—Jurisdiction—Pleading. Where it clearly appeared from the record that a legal grand jury of.the county of the prosecution had returned into the District Court only one indictment against the defendant and the same was transferred by proper order to the County Court, a mere clerical error in the indictment as to the date of the organization of the grand jury was at most a formal defect and should have been reached by a motion to quash or plea to the jurisdiction, and -not by bill of exceptions. 3. —Same—Charge of Court—Threats—General Exception. While it was unnecessary and improper to define threats in the court’s general definition of false imprisonment, yet, in submitting the case to the jury for a finding, nothing was submitted on that subject, there was no reversible error. Following Jones v. State, 63 Texas Grim. Bep., 394, and other cases. 4.—Same—Defendant's Failure to Testify—Misconduct of Jury. Where the objection of the misconduct of the jury in discussing defendant’s failure to testify was not reserved and filed during term time, the same could not be considered on appeal. Following Probest v. State, 60 Texas Grim. Bep., 608, and other cases. [Behearing denied November 26, 1913.—Reporter,]
71 Tex. Crim. 377Ex Parte Russell (1913)
1. —Murder—Bail—Constitutional Law. All prisoners shall be bailable by sufficient surety, unless for capital offenses when the proof is evident. Article 1, section 11, Constitution. 2. —Same—Capital Offense—Bill of Bights—Proof Evident. In order to make the case non-bailable under the Bill of Bights, the proof must be evident that' there has been committed a capital offense, and the proof must show that relator would be punished by death, if the law is properly administered, and the word “evident” means clear, plain, and obvious. Following Ex parte Boyett, 19 Texas Crim. App., 17, and other cases. 3. —Same—Change of Law—Rule Not Changed. Under the old law, murder was of two degrees, but under the present law as amended, the degrees of murder are abolished and the punishment may be either death or imprisonment in the penitentiary, but this can not affect the constitutional rule authorizing bail in all cases except capital offenses where the proof is evident. 4. —Same—Statutes Construed—Purpose of Amendment. It does not follow that because the definition and punishment for murder has been changed that, therefore, all cases of murder are non-hailable; the intention of the Legislature would show that this was not the purpose of the amendment, and the circumstances attending each killing must be the guiding rule as to whether the same is bailable. 5. —Same—Case Stated—Reversible Error. Where, upon trial of habeas corpus proceedings for bail under a charge of murder, the facts disclosed that the defendant was entitled to bail, a judgment of the lower court refusing bail will be reversed and remanded and the bail fixed.
71 Tex. Crim. 380Ex Parte Stephenson (1913)
The opinion states the case.
71 Tex. Crim. 383Ex Parte Martin (1913)
The opinion states the case.
71 Tex. Crim. 384Windham v. State (1913)
The opinion states the case.
71 Tex. Crim. 387Thomas v. State (1913)
1. —Manslaughter—Charge of Court—Provoking Difficulty. Where, upon trial of manslaughter, the evidence did not raise the issue of provoking the difficulty, it was reversible error to charge thereon. 2. —Same—Charge of Court—Converse Proposition. Even if the evidence did raise the question of provoking the difficulty, but there was evidence that it did not, the court should have submitted the converse of the proposition.
71 Tex. Crim. 389Chism v. State (1913)
1. —Gaming—Evidence—Confessions. Where the alleged confessions were not reduced to writing in accordance with the statute and the defendant was not warned, they were inadmissible in evidence. 2. —Same—Evidence—Opinion of Witness. Upon trial of gaming, it was reversible error to admit in evidence the opinion or conclusion of the witness. '
71 Tex. Crim. 390Stubbs v. State (1913)
1. —Theft—Misdemeanor—Statement of Facts—Bills of Exception. Where the statement of facts and bills of exception in a misdemeanor case were filed more than twenty days subsequent to the adjournment of court for the term, they can not be considered on appeal; however, if they were considered, there was no reversible error. 2. —Same—Bill of Exceptions—Motion for New Trial. Where the bill of exceptions only embraced the motion for new trial, it added nothing to the strength thereof. 3. —Same—Sufficiency of the Evidence. Upon appeal from a conviction of misdemeanor theft, if the evidence could be considered, the same supported the conviction. 4. —Same—Voluntary Return of Stolen Property. Where the evidence did not raise the issue of voluntary return of stolen property in a misdemeanor theft, and no charge was requested thereon, there was no error.
71 Tex. Crim. 391Johnson v. State (1913)
The opinion states the case.
71 Tex. Crim. 393Heidelberg v. State (1913)
The opinion states the case.
71 Tex. Crim. 395Hare v. State (1913)
The opinion states the case.
71 Tex. Crim. 397Cobb v. State (1913)
Carrying Pistol—¡Representation by Counsel. Where, upon appeal from a conviction of unlawfully carrying a pistol, there appeared nothing in the record to show that defendant was prevented from obtaining counsel, his contention that he was not represented by counsel in the trial of the case can not be considered on appeal.
71 Tex. Crim. 398Woods v. State (1913)
The opinion states the case.
71 Tex. Crim. 399Wilson v. State (1913)
The opinion states the case.
71 Tex. Crim. 405Edwards v. State (1913)
The opinion states the case.
71 Tex. Crim. 406Cagel v. State (1913)
The opinion states the case.
71 Tex. Crim. 408Bonds v. State (1913)
1. —Murder—Misconduct of Jury—Allusion to Defendant’s Failure to Testify. Where, upon a trial of murder and a conviction of murder in the second -degree, it became a contested issue whether the jury had alluded to defendant’s failure to testify, the court should have permitted an oral examination of each and all the jurors upon this • question, and a refusal to do so was reversible error. , 2. —Same—Evidence—Moral Turpitude. Upon trial of murder, testimony as to a charge of theft against one of defendant’s witnesses when he was a boy twelve years old should not have been admitted, as it was too remote in time, etc. However, the question was not properly presented on appeal. 3. —Same—Charge of Court—Words and Phrases. Where the use of the word, “defendant,” was twice used in the court’s charge in place of “deceased,” and it appeared from the record that the same was a mere clerical error and could not have misled the jury, there was no reversible error, although the court is reminded to be more careful in writing his charge. 4. —Same—Character and Disposition of Deceased—Charge of Court. Where, upon trial of murder, the evidence showed that deceased had been a violent and dangerous man, etc., the court in submitting the issue of self-defense should have charged that the jury might consider defendant’s knowledge of the character and disposition of deceased. Following Messer v. State, 43 Texas Crim. Rep., 97.
71 Tex. Crim. 414Day v. State (1913)
The opinion states the case.
71 Tex. Crim. 415Green v. State (1913)
The opinion states the case.
71 Tex. Crim. 416Cannan v. State (1913)
The opinion states the case.
71 Tex. Crim. 417Edwards v. State (1913)
1. —Perjury—Sufficiency of tlie Evidence. Where, upon trial of perjury, the evidence sustained the conviction, under a proper charge of the court, there was no error. 2. —Same—Evidence—Papers in Civil Suit. Where appellant admitted in his brief that his assignment of error in admitting the petition for divorce in evidence was not well taken, it is unnecessary to pass thereon. 3. —Same—-Evidence—Husband and Wife. Where, upon trial of perjury, the real issue was whether defendant had sworn falsely in his suit for divorce that his wife was afflicted with a natural and incurable impotency of the body in that her sexual organs were not natural, there was no error in admitting the testimony of the wife’s father and mother and a physician who had examined her after the- separation and just before the trial of the divorce case, and who stated that she was a natural woman and had no such growth or defects as testified to by the defendant; and this was not permitting the wife to testify against the husband. . 4. -—Same—Charge of Court—Return of Jury. Where the jury after retiring, returned into court and propounded a question to him, and the court orally instructed the jury to look to the charge of the court as theretofore given them, there was no error, in the absence of complaints to said charge; besides, the charge of the court was correct. 5. —Same—Evidence—Commission—Practice. Where both sides had closed their testimony, and the court adjourned till next morning when defendant filed a written request that defendant’s wife be compelled to submit her person to a commission of five physicians as to the condition of her sexual organs, which was the issue in the case, there was no error in overruling said application, in the absence of any claim of surprise, because there was no bill of exceptions reserved. [Rehearing denied November 19, 1913.—Reporter.]
71 Tex. Crim. 420Madrid v. State (1913)
The opinion states the case.
71 Tex. Crim. 426Wilson v. State (1913)
1.—Theft From the Person—Indictment—Value. An indictment charging the offense of theft from the person which alleged that one purse containing money and checks, the corporeal personal property of the alleged owner, was stolen, it was not necessary to further describe the . property or to allege the value thereof. Following Sims v. State, 64 Texas Grim. Rep., 435, and other eases. 2. —Same—Evidence—Bill of Exceptions. Where the hill of exceptions did not show what the testimony was that the defendant claimed was excluded, the same could not he considered on appeal. 3. —Same—Evidence—Prostitute. Upon trial of theft from the person, there was no error in permitting the State to ask the defendant, on cross-examination, if she was not a prostitute, which she answered in the negative. a 4. —Same—Sufficiency of the Evidence. Where, upon trial of theft from the person, the evidence was sufficient to sustain a conviction under a proper charge of the court, there was no error. [Behearing denied November 26, 1913.—Beporter.]
71 Tex. Crim. 428Johnson v. State (1913)
The opinion states the case.
71 Tex. Crim. 433Meek v. State (1913)
1. —Receiving Stolen Property—Sufficiency of the Evidence. Where, upon trial of receiving or concealing stolen property, the evidence sustained the conviction, under a proper charge, there was no error. 2. —Same—Evidence—Bill of Exceptions. Where, upon trial of receiving or concealing stolen property, the court admitted testimony as to the finding of a part of the alleged stolen property and its delivery to the owner, there was no error; besides, the bill of exceptions was defective. Following James v. State, 63 Texas Grim. Rep., 75, and other cases. 3. —Same—Evidence—Principal—Confession—Record. Where defendant was charged with receiving or concealing stolen property, there was no error in admitting in evidence the sworn confession of the thief, and also the indictment, verdict, judgment, and sentence against the latter; there being no objection to the introduction of said record, and all the testimony having been properly limited by the court’s charge. Davidson, Judge, dissenting. 4. —Same—Corpus Delicti—Requested Charge—Confessions. Where, upon trial of receiving or concealing stolen property, the court admitted in evidence the written sworn confession of defendant together with other facts and circumstances showing defendant’s guilt, and properly instructed the jury upon the law as applied to the facts, there was no error in refusing a requested charge that the corpus delicti can not be proved by the confession of the defendant alone, and this, although the court required the jury to find more than the statute required; that is, that defendant must have received and concealed the alleged property. • 5. —Same—Charge of Court—Invited Error-—Intent. Where, upon trial of receiving or concealing stolen property, the court substantially followed in his charge the defendant’s requested charge that if defendant fraudulently received and concealed the alleged property, etc., and the evidence did not show any innocent purpose on the part of defendant, there was no reversible error. 6. —Same—Charge of Court—Limiting Testimony. Where, upon trial of receiving or concealing stolen property, the court admitted in evidence the confessions of the thief, etc., and properly limited the same in his charge to the jury and no error was pointed out therein in defendant’s motion for new trial, there was no error. 7.—Same—Charge of Court—Accomplice. Where, upon trial of receiving or concealing stolen property, the court properly charged on accomplice testimony and properly limited the same, there was no error. [Behearing denied November 19, 1913.—Beporter.]
71 Tex. Crim. 439Thomason v. State (1913)
The theory of the State was that defendant had had this building insured; that in order to secure the insurance, he employed the principal to burn it; it also being shown that said principal occupied a room in. the said building, and circumstances tended to show that he used kerosene oil in saturating the floor and then touched it off to burn. The defendant claimed that the property burned at the time of the fire was much more valuable than the insurance which he could get out of it, and that, therefore, he had no motive to have it set on fire.
71 Tex. Crim. 443McGill v. State (1913)
1. —Aggravated Assault—Charge of Court—Defensive Theory. Where, upon trial of aggravated assault upon a female by an adult male, the testimony showed upon the part of the State indecent fondling, but the evidence for the defendant showed that the prosecutrix consented, the court should have submitted defendant’s requested instruction upon this phase of the case, and his failure to do so was reversible error. 2. —Same—Evidence—Moral Turpitude—Remoteness. Upon trial of aggravated assault, it was error, on cross-examination of defendant, to permit the State to ask defendant whether he had not been convicted of assault with intent to rape, the conviction having occurred twenty-three years before this trial, and was, therefore, too remote.
71 Tex. Crim. 445Shoemaker v. State (1913)
The opinion states the case.
71 Tex. Crim. 447Portwood v. State (1913)
1. —Perjury—Disjunctive—Charge of Court. ' Where the indictment charged defendant with swearing falsely before the grand jury that he had not bet at a game played with dice with certain parties named and other persons, and the court charged the jury that if defendant had bet with said parties or any other persons, he would be guilty, there was no reversible error. Davidson, Judge, dissenting. 2. —Same—Assignment of Perjury—Charge of Court. Where, upon trial of ' perjury, the evidence sharply presented the issues whether defendant was asked before the grand jury if he did not play at the particular game of dice alleged in -the indictment, and that he had not been asked to testify about any particular game with the parties mentioned, but only generally, the court’s failure to instruct upon this phase of the evidence as requested was reversible error. Following Simms v. State, 67 Texas Crim. Rep., 98. 3. —Same—Rule Stated—Defensive Theory—Charge of Court. A defendant is entitled to a distinct and affirmative, not merely an implied or negative, presentation of the issues which arise upon his evidence. 4. —Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify. Where, upon trial of perjury, the jury, in their retirement before they reached a verdict, alluded to defendant’s failure to testify, the same was reversible error. Following Walling v. State, 59 Texas Crim. Rep., 279, and other cases. 5. —Same—Continuance—Practice on Appeal. Where the judgment is reversed and the cause remanded upon other grounds, the overruling of the motion for continuance need not be discussed. 6.—Same—Evidence—Allegations and Proof—Value. Where, upon trial of perjury, the indictment alleged that it was a material inquiry before the grand jury whether defendant bet at a certain game played with dice, the evidence should show that something of value was bet, as it is no offense to bet at a game unless something of value is bet. See opinion pointing out how evidence may be strengthened.
71 Tex. Crim. 454Reynolds v. State (1913)
1. —Theft of Cattle—Jury and Jury Law—Challenge for Cause. Where, upon trial for theft of cattle, the record showed on appeal that the jurors objected to were not subject to challenge for cause and that none of them served on the trial of the case, there was no reversible error. Following Oates v. State, 67 Texas Grim. Rep., 488. 2. —Same—Jury and Jury Law—Regular Panel. When there are as many as twelve or more jurors in the panel, in ordinary felony cases the parties can correctly be required to make their challenges, and it is only when the panel is reduced to less than twelve jurors that the court is required to have others summoned, and where the panel was composed of twenty-four jurors, an objection that the same was not full was correctly overruled. 3. —Same—Evidence—Brand. Evidence of the brand on cattle is admissible for the purpose of proving their identity, even though such brand is not recorded, and where this was done under a proper charge, there was no error. 4. —Same—Evidence—Map. Where, upon trial of theft of cattle, the jury had before them a map showing the pasture of the alleged owner, the fences, gates, etc., which was freely used on both sides, and it was shown that the same was approximately correct, there was no error in admitting same in evidence. 5. —Same—Evidence—Declarations of Defendant—Conversation. Where defendant had shown by his witness part of the declarations of the defendant as to how he obtained the alleged stolen cattle, there was no error in permitting the State, on cross-examination, to show the entire conversation defendant had with the witness. 6. —Same—Evidence—Practice in District Court. Upon trial of theft of cattle, there was no error in permitting the State to show that the testimony of defendant on the point as to when he saw the brand on the cattle for' the first time was not true; this was necessary to a due administration of justice. Article 718, Code Criminal Procedure. 7. —Same—Venue—Evidence—Charge of Court. It is the settled law of this State that it is not essential to prove venue beyond a reasonable doubt, and the same may be proved by circumstantial evidence, and where the evidence sufficiently showed the venue as alleged, under a proper charge of the court, there was no error. 8. —Same—Charge of Court—Circumstantial Evidence—Venue. Where the court gave a correct charge on circumstantial evidence as applied to the facts of the case, the same was sufficient, and a charge on circumstantial evidence on the question of venue was inapplicable and was correctly refused. 9. —Same—Bequested Charges—Venue. Where the court’s main charge substantially covered the points in the requested charges, there was no error in refusing special charges on the same subject; especially, where they ignored the statutes.
71 Tex. Crim. 460Moreno v. State (1913)
The opinion states the case.
71 Tex. Crim. 463Harris v. State (1913)
The opinion states the case.
71 Tex. Crim. 473Harwell v. State (1913)
The opinion states the case.
71 Tex. Crim. 475Shockley v. State (1913)
1. —Attempt to Eape—Assault to Eape—Separate Offenses. It is the well established law of this State that an attempt to commit rape under article 1070, Penal Code, is an entirely separate and distinct offense from an assault with intent to commit rape under article 1029, Penal Code. Following Fowler v. State, 66 Texas Grim. Rep., 500. 2. —Same—Indictment—Pleading—Surplusage. Where the indictment sufficiently charged an assault with intent to commit rape, and not an attempt to commit rape, the same was sufficient, although unnecessary allegations were used. 3. —Same—Charge of Court—Submitting Wrong Offense. Where the indictment charged an assault with intent to commit rape, and not an attempt to commit rape, hut the court submitted the question of an attempt to commit rape and excluded thereby an assault with intent to rape, the same was reversible error. 4. —Same—Discussing Evidence—Practice on Appeal—Sufficiency of the Evidence. While it may he improper to discuss the evidence, yet it was sufficient to sustain a conviction for an attempt to rape if the defendant had been charged with that offense.
71 Tex. Crim. 477Turner v. State (1913)
1. —Theft of Cattle—Evidence—Unrecorded Brand—Charge of Court. Under the law as it formerly stood, evidence of an unrecorded brand on the alleged stolen cattle for the purpose of ownership, was inadmissible, and could only show identity of the alleged stolen animal; but it Avas necessary to so limit the testimony. 2. —Same—Unrecorded Brand—Amended law—Ownership—Identity. Under the Act of March 31, 1913, article 7160, Revised Civil Statutes, is noAV so amended that evidence of an unrecorded brand is now admissible for the purpose of establishing ownership as well as identity. 3. —Same—Recent Possession—Charge of Court. Where, upon trial of theft of cattle, the evidence raised the issue of recent possession and explanation, the court properly charged on such issue, and the charge following approved precedent, there was no error. Following Wheeler v. State, 34 Texas Crim. Rep., 350. 4. —Same—Evidence—Moral Turpitude. Upon trial of theft of cattle, testimony of the conviction of defendant about eighteen years previous to the instant trial- Avas too remote and inadmissible. 5. —Same—Evidence—General Reputation. Upon trial of theft of cattle, the general reputation of the notary public before Avliom the purported bill of sale was acknoAvledged Avas thought a little bad should not have been admitted.
71 Tex. Crim. 480Stewart v. State (1913)
The opinion states the case.
71 Tex. Crim. 482Kimball v. State (1913)
The opinion states the case.
71 Tex. Crim. 483Hickman v. State (1913)
1. —Carrying Pistol—Evidence. Upon trial of unlawfully carrying a pistol, there was no reversible error in admitting evidence that defendant fired the pistol at a mark, the jury having assessed the minimum punishment. 2. —Same—Traveler—Requested Charge. Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant while carrying the pistol was going to see his customers, who were living within trading distance of his store, this would not constitute him a traveler within the meaning of our Code, and there was no error in refusing defendant’s requested charge.
71 Tex. Crim. 484Thomas v. State (1913)
The opinion states the case.
71 Tex. Crim. 484Ramos v. State (1913)
The opinion states the case.
71 Tex. Crim. 485Key v. State (1913)
1. —Keeping Disorderly House—Ownership—Husband and Wife. The husband having the sole management of the wife’s separate property, he is in law responsible for the character of business conducted in a house thereon. 2. —Same—Evidence—General Reputation. Upon trial of keeping a disorderly house, evidence of the general reputation of the females who occupied the alleged house and that they had pleaded guilty to being common prostitutes and that defendant had gone on their bond, etc., was admissible. . . 3. —Same—Evidence—Marriage. Where it had been conclusively proven that defendant and his alleged wife were married, no error was committed in permitting witnesses to state that she was supposed to. be defendant’s wife. 4. —Same—Control of House—Husband and Wife—Separate Property. As the law puts the defendant in control of the separate property of his wife, and the evidence showing that they both lived on the property, no error' was committed refusing a requested charge that the husband is not bound to assume control of the separate property of the wife; in the absence of any proof that he was not in control of same. 5. —Same—Sufficiency of the Evidence. Where, upon trial of keeping a disorderly house the evidence sustained the conviction, tliere was no error.
71 Tex. Crim. 487Valdez v. State (1913)
The opinion states the case.
71 Tex. Crim. 489Cooper v. State (1913)
The opinion states the case.
71 Tex. Crim. 490Vine v. State (1913)
The opinion states the case.
71 Tex. Crim. 491Kelton v. State (1913)
1. —Aggravated Assault—Charge of Court—Excessive Force. Where, upon trial of aggravated assault, the evidence did not raise the issue of excessive force, this matter should not have been embraced in the court’s charge of self-defense. 2. —Same—Self-Defense—Insufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence showed that defendant acted in self-defense, the conviction could not be sustained.
71 Tex. Crim. 493Pickle v. State (1913)
Local Option—Sufficiency of the Evidence—Sale. Where, upon trial of a violation of the local option law, the evidence showed such facts as would constitute a sale, the conviction was sustained.
71 Tex. Crim. 493Ross v. State (1913)
71 Tex. Crim. 509Creed v. State (1913)
The opinion states the case.
71 Tex. Crim. 514Coulter v. State (1913)
The opinion states the case.
71 Tex. Crim. 521Martin v. State (1913)
1. —Assault to Murder—Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence, although conflicting, was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Self-Defense—Charge of Court. Where, upon trial of assault to murder, the defendant claimed an accidental or unintentional shooting, and the evidence did not raise the issue of self-defense, there was no error in the court’s failure to charge thereon. Davidson, Judge, dissenting. 3. —Same—Charge of Court—Limitation of Self-Defense. Where, upon trial of assault to murder, the evidence did not raise the issue of self-defense, a charge of the court that if the jury had a reasonable doubt that defendant went into the alleged restaurant upon a peaceful mission, to find him not guilty was not reversible error, and was more favorable to the defendant than was called for. Following Puryear v. State, 56 Texas Crim. Rep., 231. Davidson, Judge, dissenting. 4. —Same—Evidence—Cause of Trouble. Upon trial of assault with intent to murder, there was no error in admitting in evidence the previous altercation out of which the subsequent assault to murder grew. [Behearing denied November 26, 1913.—Beporter.]
71 Tex. Crim. 531Gerrate v. State (1913)
Keeping Bawdy House—Statement of Facts—Bills of Exception. Where neither the statement of facts nor bills of exception are approved by the trial judge, they can not be considered on appeal.
71 Tex. Crim. 532Cook v. State (1913)
1. —Murder—Self-Defense—Charge of Court. Where, upon trial of murder, the evidence raised the issue of self-defense, the court’s failure to charge thereon was reversible error. 2. —Same—Exculpatory Statement—Charge of Court—Self-Defense. Where, upon trial of murder, the State introduced in evidence the declarations of the defendant which embraced the issue of self-defense and to this extent was exculpatory, the court’s failure to instruct the jury that the State was bound by such declarations, unless they were shown by the evidence to be untrue, in the absence of a charge on self-defense, was reversible error. Following Jones v. State, 29 Texas Crim. App., 20, and other cases. 3. —Same—Buie Stated—Circumstantial Evidence. While the falsity of such declarations need not be shown by positive testimony, yet they must be. shown to be false, either by direct or circumstantial evidence, and such a charge must be given when the State relies for conviction alone upon the admissions and confessions of the accused, where the same contained exculpatory matter. 4. —Same—Charge of Court—Self-Defense—Buie Stated. Where the State did not rely solely upon his confession to show that defendant killed deceased, there being circumstantial evidence authorizing a conviction, yet where the court failed to charge on self-defense as raised by the exculpatory statement and failed to charge on such exculpatory statement, the same was reversible error. 5. —Same—Opinion of Trial Judge. Although the trial judge may have believed that the exculpatory part of defendant’s confession was not true, it was, nevertheless, necessary to submit the issue to the jury. 6. —Same—Evidence—Undisclosed Motive. In the absence of any proof that defendant was aware of the fact that deceased had been shot at in February, some months before the shooting, and that for this reason he had purchased a gun which he carried on the day of the killing, such testimony was inadmissible against defendant to show the undisclosed motive of deceased in carrying the gun. Following Pratt v. State, 53 Texas Crim. Pep., 281, and other cases. 7. —Same—Insanity—Charge of Court. Where there was no evidence that the defendant did not know right from wrong or was insane at the time of the offense, there was no error on the court’s failure to charge on insanity. 8. —Same—Manslaughter—Charge of Court. Where the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon. 9. —Same—Murder—Change of Law—Degrees of Murder. The Legislature, by taking the definition of murder in the first and murder in second degree and consolidating them into one offense, did not declare that the elements constituting those offenses, or either of them, should no longer be punishable, but merely substituted a new penalty.
71 Tex. Crim. 538Ex Parte Davis (1913)
1.—Cumulative Punishment—Statutes Construed. Under article 8G2, Code Criminal Procedure, the courts can order a cumulative term and that one term of imprisonment shall begin at the expiration of another, and in case the court does not so order in his final judgment, the terms of punishment run concurrently. Following Ex parte Hunt, 28 Texas Grim. App., 3G1, and other cases. 8.—Same—Misdemeanor—Felonies—Practice—Sentence. The provisions of article 8G2, Code Criminal Procedure, apply as. well to misdemeanors as to felonies, and there is no good reason why if a person is convicted of a felony and sentenced to a term of years in the penitentiary and subsequently tried and convicted of a misdemeanor with imprisonment in the county jail, the court could not order that the latter should begin after the expiration of the former. Prendergast, Presiding Judge, dissenting. 3.—Same—Case Stated—Cumulative Punishment. Where, at the time relator was committed to jail on a conviction of misdemeanor theft, and had been convicted of no felony at that time, but was committed to the county jail for said theft and served for three months therein before he was tried for burglary, no prior conviction having been had at the time he was convicted of the misdemeanor theft, the trial court would have been powerless to order a cumulative penalty and did not attempt to do so, and the timet he so served in jail for such misdemeanor imprisonment must be computed as a part of the four months imprisonment assessed against him for said misdemeanor, and a charge of felony for which he had not yet been tried could not interrupt such sentence; and this although he had failed to give bail on the felony charge. Prendergast, Presiding Judge, dissenting.
71 Tex. Crim. 543Cockrell v. State (1913)
Appea.l from the County Court of Coryell. Tried below before the Hon. 6. E. Johnson. Appeal from a conviction of knowingly enticing a minor away from the custody of his parents; penalty, a fine of $50. The opinion states the case.
71 Tex. Crim. 547Wilson v. State (1913)
The opinion states the case.
71 Tex. Crim. 549Barrow v. State (1913)
1.—Theft—Conversion—Charge of Court—Bailment. As the law, with reference to the commission of the offense of conversion by bailee, provides that a person guilty of that offense shall be punished in th,e same manner as if he had been guilty of tbeft, there was no error in the court’s charge in defining theft and stating the punishment therefor, and it was not necessary to further define the word, “conversion.”' 3.—Same—Charge of Court—Weighing Evidence. It is the peculiar province of the jury to weigh the evidence, and there was no error in refusing a special charge that the jury could not weigh the evidence. 3. —Same—Consent—Charge of Court. Where, upon trial of illegal conversion, there was no evidence raising the issue of consent, there was no error in refusing a requested charge thereon. 4. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of theft of a cow, the evidence was direct, the defendant only contending that the witnesses were mistaken as to the identity of the animal, there was no error in the court’s failure to submit a charge .on circumstantial evidence.
71 Tex. Crim. 551Humphries v. State (1913)
The opinion states the case.
71 Tex. Crim. 551Johnson v. State (1913)
Rape—Indictment—Statement of Facts. In the absence of a statement of facts and bills of exception, where the indictment, in a case of rape, followed approved precedent, there was nothing to review on appeal.
71 Tex. Crim. 552Latham v. State (1913)
The opinion states the case.
71 Tex. Crim. 555Whiten v. State (1913)
The opinion states the case.
71 Tex. Crim. 559Anderson v. State (1913)
Assault—Sufficiency of the Evidence—Intent. Where, upon trial of an aggravated assault, the testimony for the State was sufficient to sustain the conviction, and the defense of innocent intention was at the request of the defendant properly submitted to the jury, there was no reversible error.
71 Tex. Crim. 560Tollet v. State (1913)
The opinion states the case.
71 Tex. Crim. 560Stark v. State (1913)
The opinion states the case.
71 Tex. Crim. 561Robinson v. State (1913)
1. —Burglary—Indictment—Theft—Pleading. Where a burglary is charged to have been committed with the intent to1 commit theft, the indictment must set out the elements of theft, and where this was not done, the same was fatally defective. Following Williams v. State, 41 Texas, 98, and other cases. 2. —Same—Continuance—First Application—Cumulative' Evidence. The rule of cumulative evidence does not apply in a first application for continuance, and where the diligence was sufficient and the absent testimony material, the continuance should have been granted. 3. —Same—Defensive Theory—Charge of Court. Where, upon trial of burglary, the court ignored in his charge the defensive theories, the same was reversible error. 4.—Same—Charge of Court—Defensive Theory. A defendant in a criminal cause is entitled to a distinct and affirmative charge on any theory that may be presented by the evidence and which tends to exonerate him, or about which the jury might have a reasonable doubt, and the court’s failure to do this.was reversible error.
71 Tex. Crim. 564Fisher v. State (1913)
The opinion states the case.
71 Tex. Crim. 566Christian v. State (1913)
1. —Murder—Evidence—Res Gestae. Where, upon trial of murder, the court admitted testimony of the State that the witness was about half a mile from the shooting and ran there as soon as he heard it, finding deceased lying on the ground, who voluntarily told the witness of how and by whom he was shot, the same was res gestae. Following Rainer v. State, 67 Texas Crim. Rep., 87. 2. —Same—Dying Declarations—Evidence. Where it was shown that the wound of deceased was necessarily fatal and he handed his pistol to the witness, saying that he would have no more use for it, there was no error in admitting in evidence the statements of the deceased made at that time as to who shot him, etc., as dying declarations. 3. —Same—Cross-Examination—Bills of Exception. ■ Great latitude is always permitted in the cross-examination of a witness, and where the bill of exceptions merely complained of certain questions which were asked the witness on cross-examination but not answered, there was nothing to review. Following Sweeney v. State, 65 Texas Crim. Rep., 593. 4. —Same—Evidence—Co-Defendant—Witness. Where the proffered witness was under a separate indictment for the same offense for which defendant was being tried, he was incompetent to testify. 5. —Same—Charge of Court—Rules Stated. See opinion for well established rules pertaining to the giving of charges and how the court’s charge must be construed. 6. —Same—Charge of Court—Alibi. Where, upon trial of murder, the theory of the defense was an alibi, but the evidence also raised the issues of manslaughter and self-defense, and defense of another, there was no error in the court’s submission of these issues in connection with a complete and perfect charge on alibi, and the contention that the court should not have charged on either manslaughter or self-defense, etc., was not well taken; nor was the contention that the court by implication expressed an opinion as to the defense of alibi tenable. 7. —Same—Article 743, Code Criminal Procedure—Charge of Court. It is not reversible error, under article 743, Code Criminal Procedure, that the court gave a charge to the jury which was more favorable than the evidence required, unless injury is shown to the rights of the defendant. Following Scruggs v. State, 35 Texas Crim. Rep., 622, and other cases. 8. —Same—Rule Stated—Charge of Court—Alibi. While there may be cases where defendant’s defense is an alibi that the court should not submit the questions of manslaughter, self-defense, and defense of another; yet, the facts of the instant case and the manner of raising the objections to the court’s charge did not present such a case; and there could not have been any injury to the defendant even if the evidence did not call for the submission of these issues; besides, such issues were in fact raised by the evidence. 9. —Same—Manslaughter—Charge of Court—Attempted Arrest. Where, under one theory of the evidence, it could be well contended that it showed the attempted arrest of defendant and his confederates by the deceased at the time deceased was killed was not a legal arrest or an attempt to arrest, the issue of manslaughter was thereby raised. Following Sherwood v. State, 29 Texas Crim. App., 334, and other cases. 10. —Same—Self-Defense—Charge of Court. Where, upon trial of murder, there was evidence which would tend to show that the arrest attempted by the deceased was exercised in a wanton or menacing manner, this raised the issue of self-defense, and the court did not err in charging thereon. Following Jones vs. State, 26 Texas Crim. App., 1, and other cases. 11. —Same—Unnecessary Force—Arrest—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence concerning the attempted arrest by deceased of defendant and his companions raised the issue of the use of more force than was necessary for such purpose, the court correctly submitted manslaughter on this phase of the case. 12. —Same—Defense of Another—Self-Defense—Charge of Court—Stolen Property. Where, upon trial of murder, the issue of the seizure of personal property, by the deceased as an officer and the use of unreasonable means thereby was raised by the evidence, inuring to the benefit of defendant and his companions, the court correctly submitted the issue on self-defense and defense of another on that phase of the case. 13. —Same—Case Stated—Charge of Court—Alibi. Where, upon trial of murder, the theory of the State was murder and that of the defense an alibi, but the evidence raised the issues of manslaughter, self-defense, and defense of another in defendant’s favor, the court properly submitted these issues and the contention of the defendant that under his plea of alibi, his rights were thereby injured, is not well taken, and there was no reversible error. 14. —Same—Principals—Charge of Court. Where, upon trial of murder, the evidence showed that the defendant and his companions conspired to burglarize a freight car, and did burglarize the same, and that in the attempt to escape with the booty, defendant shot and killed the deceased in his attempt to arrest him, there was no error in the court’s charge on principals, the charge expressly requiring the jury that the defendant himself, and not any of his companions, fired the shot and did the killing, and in case of reasonable doubt to acquit. 15. —Same—Murder—Charge of Court—Burglary. Upon trial of murder, where the evidence showed that defendant and his co-conspirators agreed to arm themselves with deadly weapons to commit burglary and theft, there was no error in the court’s charge in submitting article 1141, Penal Code, that all murder committed in the perpetration of burglary, etc., is murder in the first degree, and properly defining the offense of burglary and theft and applying the law to the facts; it appearing that the offense had not been completed when the defendant shot and killed deceased who was attempting to arrest him and his companions. 16. —Same—Circumstantial Evidence—Charge of Court. Where the evidence did not raise the issue of circumstantial evidence, a charge thereon was not called for, and there was no error in the court’s failure to submit same. 17. —Same—Accomplice—Charge of Court. Where, upon trial- of murder, it was questionable whether the evidence raised the question of accomplice as to certain witnesses save one, but the court, nevertheless, submitted a complete and admirable charge on the subject of accomplice testimony with reference to all of said witnesses, there was no reversible error. 18. —Same—Sufficiency of the Evidence—Death Penalty. Where, upon trial of murder, the evidence fully warranted a conviction of murder in the first degree assessing the death penalty, there was no reversible error. [Rehearing denied December 3, 1913.—Reporter.]
71 Tex. Crim. 579Ulmer v. State (1913)
Appeal from the District Court of Hunt. Tried below before the Hon. Wm. Pierson. Appeal from a conviction of rape; penalty, five years imprisonment in the penitentiary. The testimony showed for the State that prosecutrix was the daughter ’ of the defendant and about nine years old; that defendant forcibly had sexual intercourse with her on different occasions, one of which was in the storm house, etc. The defendant denied ever having had any improper relations with prosecutrix.
71 Tex. Crim. 582Strickland v. State (1913)
The evidence shows that the defendant had heard of some derogatory statement which the deceased and one Welsh should have made about defendant and his sister-in-law; that defendant called on said Welsh with reference to ''said statements who denied having made them, whereupon defendant insisted that he should go with him to his uncle, the father of the deceased, and deny the same in his presence; that said Welsh consented and they proceeded towards said uncle’s house, but stopped within a short distance thereof, when defendant proceeded to his said uncle’s house for the purpose of bringing him to said Welsh; that he did not find his uncle at home, and was told that the deceased was plowing in a field a short distance from the house;, that defendant, in returning to the said Welsh, accidentally met the deceased, when the homicide occurred; that there were no other eyewitnesses present, but that the shots were heard, and defendant shortly thereafter was met by some of the State’s witnesses to whom he stated that he had killed deceased, but that he had it to do, etc. The deféndant. claimed self-defense, while the State insisted upon an unlawful" killing.
71 Tex. Crim. 587Ballard v. State (1913)
1.—Murder—Continuance—Practice on Appeal. Where the judgment is reversed and the cause remanded for other causes, the motion for continuance need not be considered. Z.—Same—Evidence—Other Transactions. Upon trial of murder and a conviction of manslaughter, it was reversible error to permit the State, on cross-examination of the defendant, to show that he had lived and cohabited with his wife before he had married her; the manslaughter being based on illicit conduct of deceased with defendant’s wife. 3. —Same—Evidence—Collateral Matters—Impeachment. Upon trial of murder and a conviction of manslaughter, where defendant based adequate cause upon the illicit intercourse between deceased and defendant’s wife, testimony as to trouble defendant may have had with reference to a third party about defendant’s wife before defendant married her, and to impeach defendant’s testimony thereon was inadmissible and reversible error. 4. —Same—Cross-Examination—Collateral Matter—Rule Stated. It Is not proper to allow a witness to be cross-examined as to any matter which is collateral and not material to the issue, merely for the purpose of contradicting him by other evidence, and the answer can not be subsequently contradicted by the party putting the question. 5. —Same—Evidence—Other Transactions. Upon trial of murder and a conviction of manslaughter, testimony that defendant had associated with other women or had whipped his wife before their marriage and had had illicit intercourse with her before said marriage was inadmissible to counteract the testimony of the defense that the deceased had had illicit intercourse with defendant’s wife and that defendant killed him on first meeting. 0 6. —Same—Evidence—Impeachment. Proof that defendant or any other witness in the case associated with lewd women or kept had company was not admissible for the purpose of impeachment, as such matter was irrelevant to 'the case on trial. Following Holsey v. State, 24 Texas Grim. App., 35, and other cases; it not being shown that defendant’s wife during coverture was guilty of any illicit intercourse, and manslaughter being based on deceased’s illicit intercourse with defendant’s wife. 7. —Same—Rule Stated—Impeachment; Impeaching a material witness on an immaterial matter is reversible error, and it is not proper to allow a witness to be cross-examined on immaterial and collateral matter for the purpose of contradicting him by other evidence, unless the matter pertains to motive, etc. 8. —Same—Rule Stated—Cross-Examination—Collateral Matter. When a witness is cross-examined on a matter collateral to the issue, his answer can not he subsequently contradicted by the party putting the question. 9. —Same—Rule Stated—Credibility of Witness. Mere accusations or evidence of particular acts of misconduct are not admissible to affect the credibility of a witness; it must be shown that he has been legally charged with a felony or a misdemeanor imputing moral and legal turpitude. 10. —Same—Rule Stated—Adulterous Relations. If a witness answers no as to adulterous relations or other courses of con•duct that might reflect upon him, the answer is completed, and opposing counsel should not he permitted to put other witnesses on the stand and impeacli the witness by proving conduct and transactions that would lead the jury to believe that the witness had been guilty of adultery. Following Gonzales v. State, 54 Texas Grim. Rep., 230, and other cases. 11. —Same—Charge of Court—Limiting Testimony. It is error in limiting impeaching testimony for the court either to assume that an act was done or that the witness had made such statement, and it is also error to single out one or more facts in evidence and limit this to motive. Following Green v. State, 49 Texas Grim. Rep., 645, and other cases. 12. —Same—Self-Defense—Charge of Court—Relative Strength. Where, upon trial of murder and a conviction of manslaughter, the question of relative strength of the parties had nothing to do with the case, a charge on this matter in the court’s charge on self-defense was reversible error. 13. —Same—Charge of Court—Apparent Danger. Where, upon trial of murder and a conviction of manslaughter, the evidence raised the issue of apparent danger, the court, in his charge on self-defense, should not have submitted the question from the viewpoint of an actual attack made upon defendant by deceased.
71 Tex. Crim. 594Myers v. State (1913)
1.—Murder—Bills of Exception—Practice on Appeal. In the absence of bills of exception, the overruling of applications for a change of venue and continuance can not be considered on appeal. 3.—Same—Jury and Jury Law—Challenge. Where the juror on bis examination testified under oath that notwithstanding his opinion he could render an impartial verdict on the law and the evidence, and the court, in his discretion admitted him as competent to serve, there was no error in overruling a challenge for cause. 3.—Same—Evidence—Declarations of Defendant. Where the statement of defendant .which was introduced in evidence presented the matter in as favorable light to the defendant as did any of the testimony adduced on the trial, there was no error. 4.—Same—Charge of Court—Cooling Time. Where, upon trial of murder, the court instructed on the different degrees of murder and manslaughter, and his failure to instruct on cooling time was more favorable to defendant than if he had done so, there was no error. .
71 Tex. Crim. 599Brooks v. State (1913)
Theft of Horse—Charge of Court—Sufficiency of the Evidence. Where, upon trial of theft of a horse, the court in his charge fairly and fully presented the only real issue raised by the evidence, which was sufficient to sustain the conviction, there was no error.
71 Tex. Crim. 600Pigg v. State (1913)
1. —Perjury—Indictment. Where, in a prosecution for perjury, the indictment failed to allege that the defendant was asked the questions before the grand jury or that he was a witness before said body and was sworn as such, and that the questions asked him were material, etc., the same was insufficient. 2. —Same—Grand Jury—Jurisdiction. The grand jury has no right to inquire beyond the county of the prosecution as to offenses committed, and questions of offenses outside of said county to a witness can not be made the basis of perjury.
71 Tex. Crim. 604McGregor v. State (1913)
1. —Murder—Change of Venue—Arraignment—Statutes Construed. Article 630, Code Criminal Procedure, requiring that the plea of not guilty shall be entered before a change of venue, is only directory, and under article 938 id., the presumption that defendant was arraigned unless otherwise shown obtains, and in the absence of a bill of exceptions, the matter can not be reviewed on appeal; the record showing that defendant was properly arraigned in the county to which the venue was changed. 2. —Same—Argument of Counsel. Where it appeared from the record that the court expressly told the jury not to consider the remarks of the State’s counsel, there was no reversible error, although counsel are warned to remain in the record. S.—Same—Manslaughter—Adequate Cause—Charge of Court—Harmless Error. Article 1131, Penal Code, expressly states that insulting words are not adequate cause, and the court should not have so instructed the jury, but the charge being more favorable to defendant than the law requires, the error was harmless. 4. —Same—Insulting Words—Charge of Court. Where the evidence expressly excluded the fact that the difficulty out of which the killing grew was caused by insulting words of the deceased towards defendant’s wife and her lady companion, there was no error in the court’s failure to charge thereon; besides, no such special'requested charge appears of record. 5. —Same—Charge of Court—Self-Defense. Where the defendant’s requested charge on self-defense was not copied in the record, the same could not be considered on appeal. 6. —Same—Provoking the Difficulty—Charge of Court—Converse Proposition. Where the charge of the court on provoking the difficulty was clearly defective in that it did not require that the words or acts of the defendant provoking the difficulty were with the apparent intention of killing or doing serious bodily injury to the deceased, and failed to submit the converse of the proposition, the same was reversible error. Following McCandless v. State, 42 Texas Grim. Rep., 58. 7. —Same—Dying Declarations—Charge of Court. Where there was nothing in the confession or the record that would call for a charge on the dying declarations of the deceased, there was no error in the court’s failure to charge thereon, as such a charge would have been on the weight of the evidence. 8. —Same—Newly Discovered Evidence—Practice on Appeal. Where the judgment is reversed and the cause remanded on other grounds, the question of newly discovered evidence need not be considered.
71 Tex. Crim. 608Masters v. State (1913)
1. —Murder—Charge of Court—Threats—Self-Defense. Where, upon trial of murder, the evidence raised the issue of threats, the court’s failure to charge thereon in connection with self-defense was reversible error. 2. —Same—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence raised the issue of manslaughter from the standpoint of insult to a female relative as well as from the general circumstances of the case, it was reversible error not to submit these issues. 3. —Same—Other Causes of Death—Improper Treatment. Where, upon trial of murder, the evidence raised the issue of negligence and improper treatment of deceased by others than the defendant, the court’s failure to submit said issue was reversible error. 4. —Same—Self-Defense—Charge of Court. See opinion for facts suggesting a more explicit and full charge on self-defense than the one given.
71 Tex. Crim. 610Johnson v. Thee State (1913)
The opinion states the case.
71 Tex. Crim. 612Bussey v. State (1913)
The opinion states the case.
71 Tex. Crim. 614Grimes v. State (1913)
1. —Assault to Rape—Evidence—Husband and Wife—Cross-Examination. Where defendant’s wife had testified at his instance, she was subject to impeachment on the matters to which she testified, and having denied making a certain statement to a State’s witness that prosecutrix had told her that defendant tried to ruin her, there was no error in permitting the State to introduce this State’s witness and thus impeach the wife’s testimony; the court properly limiting said evidence. 2. —Same—Evidence—Conduct of State’s Counsel. While it was highly improper for State’s counsel to ask the State’s witnesses questions whether defendant had ever been guilty of any improper conduct towards the sisters of the prosecutrix, yet, where the court immediately sustained objections thereto and reprimanded State’s counsel, the same was not reversible error. 3. —Same—Requested Charge—Degree of Offense. Where defendant was charged with assault to rape, there was no error in refusing a requested instruction to acquit on the ground that the evidence showed rape. 4. —Same—Penetration—Charge of Court. Where, upon trial of assault to rape, the evidence sustained the conviction, there was no error in refusing a requested charge to acquit defendant if defendant penetrated the rectum of prosecutrix. 5. —Same—Argument of Counsel—Presumption. In the absence of any showing that the State’s counsel used the language objected to, it must be presumed that the court ruled correctly.in refusing special charges thereon.
71 Tex. Crim. 617Broughton v. State (1913)
1.—Carrying Pistol—Amendment—Information—Complaint—Date. The date of the offense alleged in the information is a matter of substance and can not be amended either by the -court or the county attorney, and the correct practice is to quash the information and file a new one. 8.—Same—Case Stated. Where the case had proceeded to trial and the county attorney, with the permission of the court, amended the information so as to make the date of the offense to correspond with that in the- complaint, the same was reversible error.
71 Tex. Crim. 618Ex Parte Higgins (1913)
From Johnson County. Original habeas corpus proceeding asking release from confinement for contempt for refusing to answer certain question by the grand jury. The opinion states the case.
71 Tex. Crim. 620Johnson v. State (1913)
1. —Murder—Manslaughter—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no error. 2. —Same—Misconduct of Jury—Statement of Facts. Where the statement of facts of the evidence heard upon the motion for new trial on account of the misconduct of the jury was not filed during the term of the trial court, the same could not be heard on appeal. Following Probest v. State, 60 Texas Grim. Rep., 608, and other eases.
71 Tex. Crim. 621Black v. State (1913)
The opinion states the case.
71 Tex. Crim. 625Blackburn v. State (1913)
The opinion states the case.
71 Tex. Crim. 630Shaw v. State (1913)
The opinion states the case.
71 Tex. Crim. 633Sharp v. State (1913)
The State’s testimony showed that the prosecutrix while riding in an automobile with defendant, late in the afternoon, and while they were returning towards her home shortly after dark, the defendant . forcibly took her out of the automobile, after she had refused to kiss him, etc., threw her forcibly to the ground, and in spite of her strenuous resistance, had carnal intercourse with her by force and against her consent.
71 Tex. Crim. 642Key v. State (1913)
71 Tex. Crim. 646Belcher v. State (1913)
1.—Murder—Venue—Practice on Appeal. Where the question of the failure to prove venue was first raised by appellant in his motion for new trial and no issue was made thereof during trial, and it did not affirmatively appear that venue was not proven by a bill of exceptions as required by law, the same could not be considered; besides, it affirmatively appeared from the record that the killing occurred in the county of the prosecution. 3.—Same—Rule Stated—Venue—What Proof Required. It is the settled law of this State that it is not essential to prove venue beyond a reasonable doubt and that this doctrine does not apply to the issue of venue, and if from the evidence, the jury may reasonably conclude that the offense was committed in the county alleged, it is sufficient. 3. —Same—Statutes Construed—Presumption. Prior to the Act of 1897, now article 938, Code Criminal Procedure, it was necessary that the record on appeal must affirmatively show venue, whether contested or not, but since said Act, this court shall presume that the venue was proven in the court below, unless that was made an issue in the .court below and duly reserved by bill of exceptions. Following McGlasson v. State, 38 Texas Grim. Rep., 351. 4. —Same—Jury and Jury Law—Challenge. Where the record on appeal showed that the juror was duly examined on liis voir dire and that he was qualified under subdivision 13, article-692, Code Criminal Procedure, there was no error. 5. —Same—Evidence—Motive—Declarations of Defendant. Upon trial of murder, there was no error in admitting in evidence testimony that the State’s witnesses, in passing near the defendant and the house of the deceased shortly before the homicide they saw both" parties and heard defendant at that time do some pretty loud swearing, and it was not essential that these witnesses must know positively that it was defendant, although one of them did so testify. 6. —Same—Remarks by Judge. ' Where, upon trial of murder, defendant objected to the remarks of the judge directed to the district attorney that he might ask the witness the questions which the judge asked while the jury was out, with reference to recognizing defendant’s voice, and the court qualified the bill that the witness knew defendant by his voice, there was no error. 7. —Same—Rules of Evidence—Relevancy of Testimony. Evidence may be given in any proceeding of any fact in issue, and of any fact relevant to any fact in issue, and every fact which is a part of the same transaction as the facts in issue is deemed to be relevant thereto, although it may not be actually in issue, and although if it were not part of the same transaction, it might be excluded as hearsay. 8. —Same—Relevancy of Evidence—Rule Stated. It is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable, and any circumstance of the transaction may be submitted to the jury, provided it affords a fair presumption or inference as to the matter in issue. 9. —Same—Main Issue—Relevant Testimony—Motive. However remote from the main issue in point of time, place or other circumstances a fact may be, if relevant and tending to explain the main issue, the safer practice is to admit evidence thereof, and facts tending to show a motive, though remote, are admissible in evidence. 10. —Same—Rule Stated—Circumstantial Evidence. Where, upon trial of murder, it developed that outside of the defendant’s confessions, the evidence was largely circumstantial as to the corpus delicti, a greater latitude in the presentation of the evidence was demanded in order to explore every possible source from which any light, however feeble, might be derived. Following Noftsinger v. State, 7 Texas Grim. App., 301, and other cases. 11. —Same—Evidence—Flight of Defendant—Independent Facts. Where, upon trial of murder, it took the testimony of several witnesses to independent facts known and testified to by them to show defendant’s flight and the change of his name and going under an assumed name, there was no error in admitting in evidence testimony with reference to the sending of telegrams, conversations over the telephone, and letters mailed and directed - to defendant under an assumed name, with reference to such flight; besides the bills of exception were defective. 12. —Same—Evidence—Oral Confession—Proof of Defendant’s Declarations—Statements Found to be True. Where, upon trial of murder, one of the main contested points was whether or not the dead body found was that of deceased and as to whether lie was murdered, and by whom, and by what means the killing was effected, there was no error in admitting in evidence the oral confessions of the defendant voluntarily made while in custody, which were found to be true and which conduced to establish his guilt and the instrument with which he stated the offense was committed, and this was a question of law, and there being no contest that the same were voluntarily made, there was no error in the court’s failure to submit a charge upon them to the jury. 13. —Same—Evidence—FTon-Expert Testimony. Upon trial of murder, there was no error in permitting State’s witnesses to testify that the next day after the homicide, and for a few days thereafter, they went to the former home of deceased and found blood at various places on the ground, etc., there being no attempt to show as to whose blood it was, etc. 14. —Same—Charge of Court—Weight of Evidence. Where the charge of the court, as a whole, left everything necessary to have been found by the jury to them without any intimation as to the weight of the evidence to establish any fact in the case, the same was not on the weight of the evidence. 15. —Same—Evidence—Confessions—Exculpatory Statement—Charge of Court. It is only when the State introduces exculpatory statements in a defendant’s confession, and practically wholly relies thereon for proving defendant’s guilt, that makes it necessary to charge the jury that they must be taken as true unless the State proves the falsity thereof, and where the defendant introduces such testimony, there was no error in the court’s failure to charge thereon. Distinguishing Pharr v. State, 7 Texas Crim. App., 472. 16. —Same—Threats—Charge of Court—Self-Defense. Where, upon trial of murder, the only threat, if any, was made at the ver|[ time of the killing, there was no error in the court’s failure to charge on the Ia% of threats in connection with self-defense, the court’s charge on self-defense being in every way favorable to defendant. Ii3g_q 17. —Same—Charge of Court—Character and Disposition of Deceased!? Where, upon trial of murder, the defendant himself, and he alone, intrddueed testimony showing that the deceased was a violent and dangerous man, tliS size, weight, relation and ages of the parties, etc., there was no error in the? court’s charge submitting the issue of the relative strength of the parties and defendant’s knowledge of the character and disposition of deceased. 18. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained a conviction of murder in the second degree, there was no reversible error on this ground. [Rehearing denied December 10, 1913.—Reporter.]
71 Tex. Crim. 661Smith v. State (1913)
1. —Local Option—Evidence—Cross-examination. Where, upon cross-examination, defendant asked the State’s witness if he did not go to defendant’s sister and tell her that he did defendant a wrong, etc., there was no error in permitting the State to have the witness tell what did occur on that occasion. 2. —Same—Charge of Court—Credibility of Witness. Where, upon trial of a violation of the local option law, the defendant introduced witnesses to impeach the prosecuting witness with reference to a statement which he denied making to said witness, there was no error in the court’s charge in limiting said testimony to the credibility of the State’s witness. Distinguishing Howard v. State, 25 Texas Crim. App., 686. 3. —Same—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no error. [Rehearing denied December 3, 1913.—Reporter.]
71 Tex. Crim. 662Daniels v. State (1913)
The opinion states the case.