72 Tex. Crim.

Volume 72 — Texas Criminal Reports

185 opinions

72 Tex. Crim. 1Bishop v. State (1913)
1. —Seduction—Evidence—General Reputation of Peaceable Character. Upon trial of seduction, where defendant tendered witnesses who would have testified that they knew him, knew his reputation in the community where he resided and that his reputation as a peaceable and law-abiding citizen was good, and the court sustained an objection by the State thereto, the same was reversible error. Following Jones v. State, 10 Texas Crim. App., 552, and other cases. 2. —Same—Rule Stated—General Reputation—Intent. A defendant may prove his general good character when criminal intention is of the essence of the offense. Following House vs. State, 42 Texas Crim. Rep., 125, and other cases. S.—Same—Rule in Seduction Cases—Criminal Intent. The crime of seduction is based upon the theory that the defendant used the means and made the promise to accomplish the ruin of the girl with no intention of fulfilling his promise of marriage, and he may, therefore, if he so desires, put his reputation in issue. 4. —Same—Evidence—Leading Questions. Where the witness was unlettered, unable to understand and reluctant in character, questions leading in their nature could be propounded. 5. —Same—General Exceptions—Practice on Appeal. Where defendant groups a number of questions and answers and makes a general objection to all of them, some of which are not leading, the same can not be reviewed on appeal. Following Ortiz v. State, 68 Texas Crim. Rep., 524. 6. —Same—Argument of Counsel—Vituperative and Abusive Language. Under no circumstances is a prosecuting officer justified in resorting to vituperative and abusive language, and this court may be called upon to reverse a case for that reason alone. 7. —Same—Evidence—Bill of Exceptions. Where the evidence as qualified in the bill of exceptions was admissible, there was no error.
72 Tex. Crim. 4Veherana v. State (1913)
The opinion states the case.
72 Tex. Crim. 5Bradford v. State (1913)
Local Option—Bills of Exception—Statement of Facts. Where the statement of facts and bills of exception were filed too late, and no reason was given why the same were not filed in time, they can not be considered on appeal.
72 Tex. Crim. 6Thompson v. State (1913)
The opinion states the case.
72 Tex. Crim. 9Graham v. State (1913)
1. —Aggravated Assault—Written Pleadings—Two Days. The defendant, who was charged with aggravated assault by information, insisted upon having his two days in which to prepare and file written pleadings, which being overruled by the court, is reversible error. Following Evans v. State, 36 Texas Crim. Rep., 32, and other cases. 2. —Same—Continuance—Sickness of Defendant. While it is not necessary to pass upon defendant’s application for continuance, yet, where the record showed that he was not in a condition to be tried, a continuance should have been granted. 3. —Same—County Attorney—Private Prosecutor. Where the information was not signed by the county attorney, but by a private prosecutor, and the record did not show who represented the State, the matter should be corrected upon another trial. 4. —Same—Evidence—Dehors the Record—Bills of Exception. Where the court qualifies the bill of exceptions, he should not quote facts, dehors the record. Following Leonard v. State, 53 Texas Crim. Rep., 187. 5. —Same—Allegations and Proof. When the State confines its investigation or its basis of conviction to the-date alleged in the information, it will he limited to that particular transaction.. Following Lunn v. State, 44 Texas, 85. 6. —Same—Complaint—Information— Officer’s Duty. The complaint and information should be properly signed and approved by the proper officers, and the record should not be burdened with questions of this sort on appeal.
72 Tex. Crim. 12Smith v. State (1913)
Murder—Statement of Facts—Ninety Days—Filing. The law requires that statements of facts shall he filed in the lower court within ninety days from the adjournment of the court, and where, upon appeal from a conviction of murder, the record showed that the statement of facts was not filed at all in the lower court, the same can not be considered.
72 Tex. Crim. 13Rasberry v. State (1913)
The opinion states the case.
72 Tex. Crim. 16White v. State (1913)
Local Option—Substitution of Indictment—Jurisdiction. Where the substitution of the indictment was not made according to the provisions of article 482, Revised Code Criminal Procedure, but the county attorney only verbally asked permission of the court to substitute the lost indictment, and thereafter, at a subsequent term and after the case was appealed, undertook to comply with the law, the same was without jurisdiction, and constitutes reversible error. Following Strong v. State, 18 Texas Crim. App., 19, and other cases.
72 Tex. Crim. 17Anselin v. State (1913)
Tried below before the Hon. R. J. McMurrey. Appeal from a conviction of failing to work on a public road; penalty, a fine of $1. The opinion states the case.
72 Tex. Crim. 19Golden v. State (1913)
1. —Keeping Disorderly House—Evidence—Other Transactions. Upon trial of knowingly permitting and keeping a house for purpose of prostitution on an information containing but one count, there was no error in permitting the State to prove that defendant owned some eight or ten other houses located in the same neighborhood as the house which he was charged with keeping, and that they were all occupied by women who were running houses of prostitution. 2. —Same—Rule Stated—Other Transactions—Knowledge. Where knowledge of the character of the occupants of houses and their vocation must be traced home to defendant, testimony that he owned other houses, etc., collected rent therefor, knew the vocation they were pursuing, the reputation of the houses, etc., are admissible in evidence, although defendant is charged with keeping but one certain house for purposes of prostitution. Following Sylvester v. State, 42 Texas, 496, and other cases. 3. —Same—Election by State—One Count—Different Misdemeanors. Where defendant was charged by information in but one count for keeping a disorderly house, and the evidence showed that he owned some eight or ten other houses located in the same neighborhood which were all used for purposes of prostitution, and the court, after the evidence was all closed, overruled defendant’s motion requiring the State to elect on which one of these houses it would seek a conviction, and charged the jury that if defendant kept a house for prostitution, etc., to find him guilty, whereby the jury could have found him guilty for keeping either of said houses, the same was reversible error, and the State should have been required to elect upon which transaction it would seek a conviction. 4. —Same—Rule Stated—Misdemeanor—Felony—Election by State. If the information contains but one count charging a misdemeanor, and the evidence discloses two or more separate and distinct transactions, the State may be required to elect unless the offense is a continuous one, but where the information contains two or more counts, the State will not be required to elect as between counts, but may ask the conviction upon all counts. The rule is different in felony cases. Following Williams v. State, 44 Texas Crim. Rep., 316, and other cases. Qualifying Williams v. State, 97 S. W. Rep., 498.
72 Tex. Crim. 24Calhoun v. State (1913)
The opinion states the case.
72 Tex. Crim. 24Thompson v. State (1913)
The opinion states the case.
72 Tex. Crim. 26Scott v. State (1913)
1.—Perjury—Indictment—Specific Questions. Where the indictment for perjury specifically alleged the questions propounded to the witness by the grand jury upon which the perjury was based, an objection that the same were too general was not sound, and the indictment was sufficient. Following McDonough v. State, 47 Texas Crim. Rep., 227. Overruling Meeks v. State, 32 Texas Crim. Rep., 420 and McMurtry v. State, 38 Texas Crim. Rep., 521. 3.—Same—Evidence—Grand Jury. Where, upon trial of perjury, defendant was put upon notice of the fact that he was suspected by the grand jury of being implicated in certain games and knew that the same had been played and that he was a party thereto, there was no error in permitting a grand juror to testify that defendant’s attention was called to these matters; although as a rule, such testimony would be inadmissible. 3. —Same—Evidence—Allegation and Proof. Where the game of dice which formed the predicate for perjury was alleged to have occurred with the parties named on a certain time and place, it was inadmissible to admit testimony of another game not alleged in the indictment at a different time and place by different parties; especially, where the same was not limited by the court’s charge. 4. —Same—Evidence—Remarks by Judge—Recalcitrant Witnesses. When the trial court deems it necessary to punish recalcitrant witnesses, he should retire the jury so that they may not be affected injuriously to the cause of the accused, and the court should not express his opinion about the testimony of the witness, but should limit his ruling upon the rejection or admission of testimony without expressing his views about it, and a withdrawal of the matter from the jury of his conduct can not cure the error. Following Deary v. State, 62 Texas Crim. Rep., 352, and other cases. 5. —Same—Evidence—Other Transactions. Where, upon trial of perjury, the same was based upon the testimony of the defendant as to a certain game played with dice in a certain place at a certain time, it was error to admit testimony as to another game at a different time and place; especially, where such testimony was not limited in the court’s charge. 6. —Same—Charge of Court—Venue. Where, upon trial of perjury, there was some question as to the venue of the offense, the court should have submitted defendant’s requested instructions thereon.
72 Tex. Crim. 33Brown v. State (1913)
1. —Occupation—Intoxicating Liquors—Local Option—Continuance. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court correctly overruled the application for continuance, in the light of the testimony adduced upon the trial, there was no reversible error. 2. —Same—Evidence—Other Sales—Other Transactions. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in admitting testimony as to other sales of intoxicating liquors than to the persons named in the indictment, and also the books of the express company showing the quantity of liquor received by defendant prior to the return of the indictment. 3. —Same—Evidence—Animus of Witness. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in showing the animus and relationship of the witness in the case; besides, part of the testimony was brought out by defendant. 4. —Same—Docket—Calling Cases—Discretion of Court. It was in the discretion of the trial court to recess the court pending the preparation of a motion for continuance, or to call the next ease on the docket, which was defendant’s case. 5. —Same—Evidence—Bias of Witness. It is always permissible to show the bias of any witness, and there was no error in permitting the State to show that defendant’s witness had approached a State’s witness and told him if he testified against defendant, he would get hell beat out of him, 6. —Same—Name of Defendant—Examined Copy Internal Revenue License. Where the evidence showed that defendant’s name is James Walter Brown, there- was no error in admitting an examined copy of entries in the books of the internal revenue collector that license as a retail liquor dealer had been issued to James Brown, etc. 7. —Same—Evidence—Pursuing Occupation. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in admitting testimony that drunken people were frequently seen in defendant’s place of business, etc., to show his occupation. 8. —Same—Alibi—Charge of Court. Where the evidence did not raise the issue of alibi and no charge was requested thereon, and the court charged on presumption of innocence, etc., there was no error. 9. —Same—Impeachment—Charge of Court. There was no error in refusing a requested charge that if the testimony of a certain State’s witness had been impeached on a material issue, to acquit defendant. 10. —Same—Charge of Court—Occupation. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court charged the jury that the State must prove that the defendant both pursued the occupation of selling intoxicating liquors and made at least two sales to persons named, in the indictment, together with reasonable doubt, etc., there was no error. 11. —Same—Charge as a Whole. The charge of the court must be considered as a whole, and where the same was applicable to the evidence and properly presented the law of the case, there was no error. [Rehearing denied November 12, 1913.—Reporter.]
72 Tex. Crim. 37St. Clair v. State (1913)
1.—Aggravated Assault—Statement of Facts—Transcript." A statement of facts which was neither signed nor filed in the court below should not be copied in the transcript, and can not be considered on appeal. 3.—Same—Statement of Facts—Practice on Appeal. In misdemeanor, cases in the County Court, unless the court allows twenty days or other number of days after adjournment for the purpose of filing statement of facts and bills of exceptions, the same can not be considered on appeal, unless filed during term time. Following Hamilton v. State, 65 Texas Crim. Rep., 508. 3.—Same—Bills of Exception—Practice on Appeal—Statement of Facts. Where the record showed on appeal that the appellant himself through his attorney alone is responsible for not getting his statement of facts in this case and hills of exception properly approved and filed, the same can not be considered on appeal. Following Douglas v. State, 62 Texas Crim. Rep., 599, and other cases. [Rehearing denied November 12, 1913.—Reporter.]
72 Tex. Crim. 39Dugat v. State (1913)
1. —Passing Forged Instrument—Sufficiency of the Evidence. Where, upon trial of knowingly passing a forged instrument, the evidence sustained the conviction, there was no error. 2. —Same—Evidence—Bills of Exception—Other Offenses. Upon trial of knowingly passing a forged instrument, where the defense was a mistaken identity, there was no error in admitting in evidence the passing or attempted passing by defendant of other forged instruments about the same time; besides, the bills of exception were too general to be considered on appeal. Following James v. State, 63 Texas Crim. Rep., 75, and other eases. 3. —Same—Rule Stated—Other Offenses—Identity. While the rule is that independent crimes by the accused are ordinarily inadmissible, yet where such crimes are part of the res gestae or are offered, to prove identity, guilty knowledge, intent, motive, system, etc., the same are admissible in evidence. Following Melton v. State, 63 Texas Crim. Rep., 362, and other cases. 4. —Same—Evidence—Other Forged Instruments. Upon trial of knowingly passing a forged instrument, there was no error in admitting testimony that the officers who arrested defendant, at the time of his arrest, found other forged instruments on his person and with his baggage, and showing the character of ink with which they had been written; besides, the bills of exception to such testimony were insufficient. 5. —Same—Motion to Postpone and Continue. Where defendant went to trial, but afterwards moved to postpone or continue the case for the absence of certain witnesses, but no affidavits were attached to the motion for new trial to show that said absent witnesses would testify to what defendant claimed they would, and it further appeared from the record that defendant must have known what proof the State would make against him, there was no error in overruling his application for postponement or for continuance. 6. —Same—Evidence—Handwriting. Upon trial of passing a forged check, defendant’s objection to the testimony of handwriting of the various forged checks was not well taken. Following Speiden v. State, 3 Texas Crim. App., 156. 7. —Same—Evidence—Harmless Error—Hotel Register—Argument of Counsel. While it was error to admit in evidence a certain hotel register as to a certain name signed therein upon a trial of knowingly passing a forged cheek,, the same was harmless, as was the argument of counsel on same. 8. —Same—Charge of Court—Other Transactions—Limiting Testimony. Where, upon trial of knowingly passing a forged check, testimony of other forged checks was introduced in evidence, which the court’s charge properly limited, there was no error in the court’s failure to further charge thereon; besides, the question was not properly raised on appeal. [Rehearing denied November 12, 1913.—Reporter.]
72 Tex. Crim. 44Collins v. State (1913)
Unlawful Practice of Medicine—Statement of Pacts. r Where the purported statement of facts was not filed in the County Court until more than twenty days after adjournment of said court, the same could not be considered on appeal. [Rehearing denied December 10, 1913.—Reporter.]
72 Tex. Crim. 45Millner v. State (1913)
The opinion states the case.
72 Tex. Crim. 45Arrisman v. State (1913)
Robbery—Statement of Facts. Where the purported statement of facts was not filed in the court below until six months after the adjournment of the court, the same can not be considered on appeal. [Rehearing denied December 10, 1913.—Reporter.] On question of statement of facts: Johnson v. State, 159 S. W. Rep., 848.
72 Tex. Crim. 68Dawson v. State (1913)
1.—Murder—Manslaughter—Deadly Weapon—Intent to Kill. Where, upon trial of murder and a conviction of manslaughter, it appeared from the evidence that defendant was armed with two knives and used one of them on deceased in such a manner as to show an intent to kill, and that deceased was not armed at all, but defendant seemed to be the aggressor, it was immaterial that defendant was the smaller man, and the conviction for manslaughter was sustained. Ü.—Same—Intent to Kill—Instrument Used. Where, upon trial of murder, the defendant contended that he acted in self-defense; and if not in self-defense, that the instrument used was not a deadly weapon and that he would not be guilty of a higher offense at any event than aggravated assault, there was no error to admit in evidence the character of the wounds inflicted by him upon the deceased, to show the mode and manner of the use of the knife with which they were inflicted, and that the same showed an intent to kill. 3. —Same—Evidence—Declarations of Deceased. Upon trial of murder and a conviction of manslaughter, there was no error in excluding the declarations of deceased which were made some time after the difficulty and were not res gestae. 4. —Same—Misconduct of Jury—Verdict by Lot. Where the record on appeal showed that there was no previous agreement among the jurors to abide by the result reached upon a certain plan of balloting, the same was not a verdict by lot, and there was no error. 5. —Same—Charge of Court. Where the evidence excluded the idea that defendant approached deceased to demand an explanation, there was no error- in the court’s failure to charge thereon. 6. —Same—Suspending Sentence. The fact that the court submitted the question of suspending the sentence at the request of defendant, and the jury did not recommend it, presents no error. [Rehearing denied December 17, 1913.—Reporter.]
72 Tex. Crim. 71Poster v. State (1913)
1. —Murder—Trial Judge—Statement of Facts—Bills of Exception. The judge of the court who tried the case and before whom the proceedings were had could alone approve the bills of exception and statement of facts, and his successor could not do so, and a motion to strike out said alleged statement of facts and bills of exception so filed must be sustained. 2. —Same—Practice on Appeal—Death Penalty. Where the alleged statement of facts and bills of exception could not be considered on appeal, but this court, nevertheless, considered them because of the death penalty inflicted, and no reversible error appeared, the judgment will be affirmed. 3. —Same—Insulting Language. Where it appeared from the purported statement of facts that the alleged insulting language by deceased to defendant was not the cause of the killing, even if it was used, there was no error. Following Fitzpatrick v. State, 37 Texas Crim. Rep., 20. 4. —Same—Indictment—Grand Jury. If the bill of exceptions, raising the point that the county attorney had with him in the grand jury room a sworn bailiff as his stenographer taking the testimony and who was not present while the grand jury discussed the propriety of finding an indictment, had been properly taken and filed, it presented no valid ground for quashing the indictment on that ground. Following Haywood v. State, 61 Texas Crim. Rep., 92, and other eases.
72 Tex. Crim. 71Porter v. State (1913)
72 Tex. Crim. 75Hendricks v. State (1913)
1. —Robbery—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence sustained the conviction, there was no reversible error. 2. —Same—Circumstantial Evidence—Charge of Court. Unless the evidence is wholly circumstantial, a charge on circumstantial evidence can neither be required nor given, and where the evidence is positive as, to defendant’s guilt, there was no error in the court’s failure to charge on circumstantial evidence. [Rehearing denied December 19, 1913.—Reporter.]
72 Tex. Crim. 76Bradford v. State (1913)
The opinion states the case.
72 Tex. Crim. 77Ex Parte Preston (1913)
The opinion states the case.
72 Tex. Crim. 81Butler v. State (1913)
1. —Local Option—Statement of Facts—Bills of Exception—Filing—Misdemeanor. The statute does not authorize or permit the County Court in misdemeanor cases to allow longer than twenty days after adjournment to file a statement of facts or bills of exception, and where the same were not filed within twenty days from adjournment, they must be stricken out on motion of the State. 2. —Same—Opinion of Trial Judge. The opinion bf the trial judge that the law authorized him to grant thirty days after adjournment within which to file statement of facts and bills of exception, by which defendant says he was misled, does not offer any reasonable excuse why these papers were not filed within time.
72 Tex. Crim. 82Hooper and Benton v. State (1913)
Tried below before the Hon. C. W. Robinson. Appeal from a conviction of assault with intent to rape; penalty, two years imprisonment in the penitentiary. The opinion states the case.
72 Tex. Crim. 83Ex Parte Marshall (1913)
1. —Indeterminate Sentence—Punishment—Jury—Constitutional Law— Void for Uncertainty. The indeterminate sentence law, chapter 132, Act of Thirty-third Legislature, regular session, is wholly void, as the provisions of same are so indefinite that no construction can be given to them that render an enforcement of that law possible. Prendergast, Presiding Judge, dissenting. 2. —Same—Case Stated—Verdict not Fixing Punishment. Where defendant was charged with a. violation of article 597, Penal Code, and the jury rendered a verdict finding defendant guilty as charged in the indictment, affixing no punishment and the judge sentenced defendant for a term not less than one nor more than three years in the penitentiary under the indeterminate sentence law, Act of Thirty-third Legislature, regular session, the judgment must be reversed and the cause remanded. 3. —Same—Functions of Jury—Punishment—Constitutional Law. The Constitution of this State does not require that the jury shall assess the punishment, but only guarantees the right of trial by jury, and said Act would not be void on this ground; but this is the statutory requirement under article 770, Code Criminal Procedure, which is not repealed by said Act. 4. —Same—Statutes Construed—Applies to All Felonies. The indeterminate sentence law, chapter 132, Act of Thirty-third Legislature, regular session, applies to all felonies, and can not be upheld on the ground that it applies only to a certain class of felonies. Prendergast, Presiding Judge, dissenting.
72 Tex. Crim. 88Decker v. State (1913)
Carrying Pistol—Intent—Charge of Court. Where, upon trial of unlawfully carrying a pistol, defendant contended that he was carrying a pistol to a shop for repairs, and the -court submitted this issue under a proper charge requested by defendant, the conviction was sustained. Davidson, Judge, dissenting.
72 Tex. Crim. 90Ex Parte Simpkins (1913)
The opinion states the case.
72 Tex. Crim. 91Trevino v. State (1913)
The opinion states the case.
72 Tex. Crim. 95Fair v. State (1913)
The opinion states the case.
72 Tex. Crim. 97Tripp v. State (1913)
Tried below before the Hon. O. S. Ferguson. Appeal from a conviction of swindling; penalty, a fine of $200 and thirty days confinement in the county jail. The opinion states the case.
72 Tex. Crim. 98Meyer v. State (1913)
The opinion states the case.
72 Tex. Crim. 99Banks v. State (1913)
The opinion states the case.
72 Tex. Crim. 100Lara v. State (1913)
The opinion states the case.
72 Tex. Crim. 103Reed v. State (1913)
The opinion states the case.
72 Tex. Crim. 105Romero v. State (1913)
1. —Theft of Horse—Statement of Facts—Ninety Days—Rule Stated. The Act of 1911, page 267, provides that the statement of facts may be prepared and filed at any time before the time for filing the transcript in this court, and appellant has ninety days within which to file the same, and where the transcript of the evidence made by the stenographer was filed with the papers and accessible to appellant and he failed to make out a statement of facts therefrom, it was his own fault, and there was no error. 2. —Same—Absence of Trial Judge—Affidavits—Bills of Exception. In the absence of bills of exception raising the question of the absence of the trial judge during trial, affidavits which were filed more than eighty days after adjournment of court on this question can not be considered on appeal. 3. —Same—Practice on Appeal. In the absence of a statement of facts, the sufficiency of the evidence and failure of the court to charge upon certain phases of the law can not be considered. 4. —Same—Motion for Hew Trial—Charge of Court. Where the court’s failure to charge on circumstantial evidence was not called to the attention of the trial court in the motion for new trial, the same can not be considered on appeal; the matter not being fundamental.
72 Tex. Crim. 107McLain v. State (1913)
The opinion states the case.
72 Tex. Crim. 109Hill v. State (1913)
The opinion states the case.
72 Tex. Crim. 114Shaw v. State (1913)
1. —Murder—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon. 2. —Same—Explanation—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of defendant’s right to demand an explanation from the deceased, there was no error in -the court’s failure to charge thereon. 3. —Same—Evidence—-Character of Deceased. Where the State did not question the fact that deceased had served a term in the penitentiary, and this was shown by all the testimony, there was no error in refusing to permit defendant to further show this fact by the wife of the deceased. [Rehearing denied December 23, 1913.—Reporter.]
72 Tex. Crim. 117Harris v. State (1913)
The opinion states the case.
72 Tex. Crim. 122Ex Parte Singleton (1913)
72 Tex. Crim. 124Ex Parte Hunt (1913)
Vagrancy—Writ of Habeas Corpus—Mandamus. Where defendant was seeking a discharge from arrest by writ of habeas corpus because he had been deprived of his right of appeal by the failure of the court to approve his bond, this would not justify a resort to the writ of habeas corpus, but he should have applied for a writ of mandamus. Following Ex parte Deloche, 50 Texas Crim. Rep., 525.
72 Tex. Crim. 126Iovanovich v. State (1913)
The opinion states the case.
72 Tex. Crim. 127Smith v. State (1913)
72 Tex. Crim. 129Key v. State (1913)
1.—Perjury—Evidence Dehors the Record—Transcript in Civil Suit. Upon trial of perjury based upon the alleged false testimony in a civil suit for damages in which defendant pleaded defective memory, it was reversible error to allow the jury, over the objections of the defendant, to take with them in their retirement' the transcript of the testimony of defendant in said civil suit, which apart from the questions and answers to and by defendant was not in evidence, and it was manifest that the jury by this method received and considered other evidence than that adduced on the trial of a material character. 2.—Same—Evidence—Non-expert Testimony. Where defendant was indicted for perjury based on his testimony in a damage suit against a certain railway and pleaded defective memory, it was error to exclude the testimony of non-expert witnesses who had intimate acquaintance and dealings with defendant and knowledge of his habits and conduct, not to express an opinion as to his mental condition and what effect it would have on his memory. Following Jordan v. State, 64 Texas Crim. Rep., 187. 3.—Same—Charge—Theory of Defense. Where, upon trial of perjury, defendant pleaded defective memory at the time he made the sworn statement upon which the offense was based, the court should have submitted in an affirmative way said defensive theory.
72 Tex. Crim. 135Borders v. State (1913)
The testimony shows that all parties were negroes and that defendant and his wife, the deceased, occupied a room in Molly Coin’s house in Freedmantown, a negro district of Waxahachie, Texas; that the house in which the killing occurred had a front gallery, a back gallery and a hall, the front door opening into the hall; that witness’ room in this-house was to the left side of the hall, going in the front door; that defendant and his wife’s .room was on the right side of the…
72 Tex. Crim. 140Poulter v. State (1913)
1.—Perjury—Evidence—Grand Jury Testimony. Upon trial of perjury, there was no error in admitting testimony to show that the grand jury was inquiring into an alleged violation of the law at the . time defendant testified before it; however, testimony with reference to the result of the trial of the civil suit wherein the alleged perjury occurred was immaterial, except the citation and plea of minority as to defendant’s brother. 3.—Same—Evidence—Pleadings in Civil Suit. Upon trial of perjury, which grew out of a civil suit against defendant’s brother, who pleaded minority, and which question the grand jury had under investigation when defendant testified before the grand jury that his brother was not more than nineteen years of age, etc., any testimony with reference to the merits of said suit, and the mortgage given by the defendant, etc., was not admissible, but defendant’s plea of minority, etc., was admissible. 3. —Same—Evidence—Grand Jurymen May Testify When. Where the perjury grew out of a civil suit in which defendant’s brother pleaded minority, and which question the grand jury was investigating when defendant appeared before it and testified that his brother was not more than nineteen years of age, all testimony with reference thereto occurring before said grand jury was admissible in evidence. 4. —Same—Evidence—Other Offenses and Transactions. Where defendant was upon trial for the offense of perjury, evidence as to other offenses for which defendant had never been prosecuted or indicted were not admissible, neither was the fact that defendant’s father, who was not a witness in the case, left a certain county under suspicious circumstances. 5. —Same—Evidence—Cross-examination. Where defendant, on cross-examination of the State’s witness to show bias, elicited from said witness the fact that a number of other witnesses were involved in the same matter, the State had the right on redirect examination to ask the witness in regard to these others. 6. —Same—Evidence—Acts of Third Parties. Where defendant’s father was not a witness in the case, testimony that be had stolen a log chain some years before the trial was inadmissible. 7. —Same—Indictment—V ariance. Where, upon trial of perjury, the indictment was sufficient and there was no variance in the proof and the material allegations contained therein, there was no error as contended by appellant. 8. —Same—Continuance—Practice on Appeal. Where the judgment is reversed and the cause is remanded upon other grounds, the overruling of the application for continuance need not be considered on appeal.
72 Tex. Crim. 143Currington v. State (1913)
The opinion states the case.
72 Tex. Crim. 151Miller v. State (1913)
1. —Occupation—Intoxicating Liquors—Local Option—Election—Contest— Evidence. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in admitting in evidence the orders of the Commissioners Court with reference to the prohibition election; besides, there was no contest of the said election within the time allowed by law. 2. —Same—Evidence—Soliciting. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in admitting evidence that defendant solicited witness to make a purchase of whisky. 3. —Same—Evidence—Books of Express Company. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in introducing in evidence the books of the express company, to show the business defendant had with same with reference to the shipping and delivery of intoxicating liquor; it being shown that the books were correctly kept. 4. —Same—Charge of Court. Where the evidence supported a conviction, there was no error in the court’s refusal to instruct the jury to find defendant not guilty. 5. —Same—Motion for New Trial. Where the court overruled the motion for new trial, a general bill of exceptions presents no question for review further than the motion would itself present. 6. —Same—Argument of Counsel. In the absence of a requested instruction with reference to objectionable argument, and an oral withdrawal thereof by the State’s attorney and the court appeared of record, there was no error. 7. —Same—Withdrawal of Announcement. There was no error, after the trial bad begun and the State had introduced its evidence, in overruling a motion to withdraw defendant’s announcement; no diligence having been shown to ascertain the facts before trial, and the same being only of an impeaching character. 8.—Same—Charge of Court—Occupation. Where the court’s charge in defining occupation followed approved precedent, there was no reversible error.
72 Tex. Crim. 153Kuykendall v. State (1913)
The opinion states the case.
72 Tex. Crim. 155James v. State (1913)
The opinion states the case.
72 Tex. Crim. 159Boyd v. State (1913)
False Imprisonment—Statement of Facts—Bills of Exception. When the statement of facts and bills of exception are filed in the County Court without an order allowing twenty days or less, or where such papers are not filed in accordance with such order within twenty days from the adjournment of the County Court, the same can not be considered on appeal. Following Durham v. State, 69 Texas Crim. Rep., 71.
72 Tex. Crim. 160Hart v. State (1913)
False Imprisonment—Statement of Facts—Bills of Exception. Where the statement of facts and bills of exception were not filed within twenty days after adjournment of the County Court, the same can not be considered on appeal.
72 Tex. Crim. 160Phillips v. State (1913)
The opinion states the case.
72 Tex. Crim. 161Hall v. State (1913)
The opinion states the case.
72 Tex. Crim. 163Jobe v. State (1913)
1.—Burglary—Accomplice—Corroboration. Where, upon trial of burglary, the testimony showed that some of the witnesses were accomplices, their testimony required corroboration, and is not sufficient otherwise to sustain the conviction. 3.—Same—Practice—Practice on Appeal. In the absence of bills of exception, objections to the remarks of prosecuting officers, overruling the motion for continuance, and the admission and rejection of testimony, can not be considered on appeal. 3.—Same—Insufficiency of the Evidence. Where, upon trial of burglary, the evidence was insufficient to sustain a conviction, the judgment must be reversed and the cause remanded.
72 Tex. Crim. 170Dunn v. State (1913)
1.—Gaining—Statutes Construed—Information. Where the article of the Penal Code has been held invalid, a prosecution can not he based thereon, and the information should he quashed. 2.—Same—Information—Private Residence—Appurtenance. A private residence can not be an appurtenance to a public road, and where the evidence showed that the premises under defendant’s control where the game was alleged to have been committed was the home and private residence of the defendant, the conviction could not be sustained. 3. —Same—Evidence—General Reputation—Premises—Opinion of Witness. Where there was no allegation that the house in which gaming was alleged to have been permitted was a disorderly house, testimony as to the general reputation thereof was inadmissible. 4. —Same—Argument of Counsel. Where, upon trial of gaming, the county attorney went out of the record and discussed matters not in evidence which were objected to by proper bill of exceptions, the same was reversible error. 5. —Same—Absence of Trial Judge. Where, upon trial of gaming, the trial judge absented himself during trial and lost control of the case thereby, the same was reversible error. 6. —Same—Misconduct of Jury—Facts Dehors the Record. The statute prohibits the jury from receiving testimony after they have retired to consider their verdict, and where the record showed this to have been done, the same was reversible error. Courts must observe the statute.
72 Tex. Crim. 173Cowley v. State (1913)
1.—Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence was sufficient to sustain the conviction, there was no error on that ground. 2.—Same—Evidence—Other Transactions. Upon trial of a violation of the local option law, there was no error in permitting the State to prove, by the agent of an express company, that defendant received and receipted for different shipments of intoxicating liquor prior to and about the time he was charged with having made a sale of intoxicating liquors. Following Wagner v. State, 53 Texas Crim. Rep., 306, and other cases. 3. —Same—Evidence—Other Transactions. Where, upon trial of a violation of the local option law, the State showed the sale of only one-half pint of intoxicating liquor, it was reversible error to permit the express agent to testify that half-pint packages of liquor were received by other parties, and with which defendant was not connected. 4. —Same—Evidence—Rebuttal. Where defendant was charged with selling intoxicating liquors in local option territory, he should have been permitted to show that he did not sell such liquor, but only procured same for the prosecuting witness as an accommodation. 5. —Same—Hearsay. What another party may have told the witness was clearly hearsay and inadmissible and presents no error. 6. —Same—Agency—Charge of Court. Where, upon trial of a violation of the local option law, the court’s charge on agency was not borne out by the facts and was erroneously submitted, the same was error.
72 Tex. Crim. 176Perales v. State (1913)
1.—Murder—Continuance—Discretion of Court. Where the record on appeal did not show that the trial court abused his discretion in overruling defendant’s motion for continuance because he was too unwell to go to trial, there was no error. 3.—Same—Temporary Insanity—Charge of Court. Where, upon appeal from a conviction of murder, nothing in the record showed that a charge on temporary insanity was called for, there was no,error. 3.—Same—Self-defense—Charge of Court—Words and Phrases. Where defendant alone testified that deceased had threatened to kill him, and the court, in his charge on self-defense, used the words, “if deceased had made a threat against the life of defendant as testified to by defendant,” etc., there was no reversible error. 4. —Same—Threats—Charge of Court. Where defendant alone testified that deceased had threatened to kill him, there was no error in the court’s failure to charge that if defendant honestly believed he made such threat, etc. 5. —Same—Jury and Jury Law—Practice on Appeal. Where defendant complained of the manner of selecting the jury on account of certain prejudice against Mexicans, but the record showed that evidence was heard on the motion for new trial on this matter, it must be presumed in the absence of the evidence that it did not sustain defendant’s allegations.
72 Tex. Crim. 176Pegram v. State (1913)
Contempt—Jurisdiction. Where appellant was fined by the lower court for contempt of court in refusing to obey a subpoena and appealed to this court, this court had no jurisdiction. Following Carter v. State, 4 Texas Crim. App., 165, and other cases.
72 Tex. Crim. 178Johnson v. State (1913)
1. —Murder—Indeterminate Sentence—Invalidity of Law—Verdict. The first indeterminate sentence law passed by the Thirty-third Legislature is invalid, and the defendant had the right to have a jury and not the trial judge to assess the punishment, and a verdict finding defendant guilty of murder without assessing the punishment was unwarranted. 2. —Same—Case Stated—Degrees of Murder—Statutes Construed. Where the defendant was indicted for murder in 1901 when the laws of this State prescribed a different punishment for murder committed upon express malice, from that committed upon implied malice, he had a right to have the jury determine whether he had committed the homicide upon express or implied malice, and to be tried under the law which was in force when the offense was committed. 3. —Same—Self-defense-—Charge of Court—Good Faith. Upon trial of murder, it was error to instruct the jury to find affirmatively that at the time defendant shot he believed in good faith, etc., to be justified in shooting.
72 Tex. Crim. 180Tafolla v. State (1913)
1. —Carrying Pistol—Evidence—Other Transactions—Attack. Where, upon trial of unlawfully carrying a pistol, the facts showed that at the time the defendant carried the pistol, an exciting election was in progress and contended that he had reason to believe that there was danger of an attack from unknown persons, there was no error in excluding testimony as to the fights and riots of others during said elections; the defendant having testified himself that he was working in the interest of one of the candidates going from one polling place to another, and there being no showing of a threatened and imminent attack upon him. 2. —Same—Charge of Court—Requested Charges. Where, upon trial of unlawfully carrying a pistol, the court’s charge with the requested instructions given sufficiently, presented any defense that the defendant was justly entitled to have submitted to the jury, there was no error in the court’s refusal of other requested charges which were not applicable to the facts. 3. —Same—Imminent Danger—Harmless Error. The law of this State permits a citizen to carry on or about his person a pistol whenever he has reasonable grounds for fearing an unlawful attack upon his person and the danger is so imminent and threatening as not to admit of the arrest of the party about to make the attack on him upon legal process, and where the court submitted this issue, although the evidence did not warrant it, the defendant could not complain. 4. —Same—Charge of Court—Intent. Where, upon trial of unlawfully carrying a pistol, the defendant did not show-that he was going about his usual business when he had the pistol in his buggy and on him, there was no error in the court’s refusal of a requested instruction thereon. 5. —Same—Costs on Appeal—Inability of Sureties—Recall of Execution. The sureties on the appellant’s recognizance are responsible for the costs incidental to the appeal, and where execution was issued by .this court to collect such costs it will not be recalled. Following Arbuthnot v. State, 38 Texas Crim. Rep., 509.
72 Tex. Crim. 185Tafolla v. State (1914)Motion denied
Pete Tafolla was convicted of carrying a pistol, and he appeals. Affirmed. 161 S. W. 1091. Motion to withdraw and recall execution for costs.
72 Tex. Crim. 185White v. State (1913)
The opinion states the case.
72 Tex. Crim. 189Matula v. State (1913)
Disturbing Peace—Corporation Court—Right of Appeal—Recognizance. Where appellant, was convicted for disturbing the peace in the Corporation Court and appealed to the County Court, where his appeal was dismissed on account of a defective appeal bond, he had a right to appeal to this court. However, his recognizance to this court is defective in failing to recite that he would abide by the judgment of the Court of Criminal Appeals in this case.
72 Tex. Crim. 189Hampton v. State (1913)
The opinion states the case.
72 Tex. Crim. 191Chappell v. State (1913)
1. —Carrying Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence, although conflicting, sustained the conviction, there was no error. 2. —Same—Continuance—Want of Diligence. Where the record clearly showed a lack of diligence on the part of the defendant in applying for process to secure the attendance of absent witnesses, there was no error in overruling the application. Following Giles v. State, 66 Texas Crim. Rep., 638. 3.—Same—Newly Discovered Evidence. Where the proposed newly discovered evidence was of an impeaching character and besides, there was no diligence in discovering same, there was no error in overruling defendant’s motion for new trial on that ground. Following Gray v. State, 65 Texas Crim. Rep., 204.
72 Tex. Crim. 193Vincent v. State (1913)
The opinion states the case.
72 Tex. Crim. 198Bracher v. State (1913)
1.—Robbery—Statement of Facts—Transcript—Filing. The time for filing transcripts in the Appellate Court expires in ninety days from the adjournment of the term of court, or if the term extends more than eight weeks, within ninety days from the date of sentence, and where the statement of facts was not filed until some five months after the sentence was pronounced, the same could not he considered on appeal. 2.—Same—Amended motion for New Trial—Rule Stated. If, after the motion for new trial has been overruled by the trial court, and appellant desired to file an amended motion for new trial, he should file a motion asking the trial court to set aside the order overruling the motion for new trial and grant him a new trial, and the record should show this on appeal. 3.—Same—Practice on Appeal. In the absence of a statement of facts, the matters presented for review can not be considered. 4. —Same—Attorney and Client—Negligence. Where appellant employs his own attorney, negligence of his attorney in securing a statement of facts will be attributed to appellant; however, if the purported statement of facts were considered by this, court, there was no error. 5. —Same—Newly Discovered Evidence. Where the motion for new trial on account of newly discovered evidence is not supported by affidavit and no reason is shown why such affidavit was not attached, the same can not be considered »on appeal. Following Love v. State, 3 Texas Crim. App., 501, and other cases. 6. —Same—Variance. Upon trial of robbery, where the evidence showed that prosecutor was robbed of more than $10, as alleged in the indictment, this would not constitute a variance. 7. —Same—Indictment—Description of Money. An indictment for robbery need not allege the denomination and kind of money of which prosecutor was robbed. 8. —Same—Jury and Jury Law—Talesman—Bill of Exceptions. In the absence of bills of exception to the formation and organization of the jury on the ground that the jury was made up by talesmen, the matter can not be considered on appeal.
72 Tex. Crim. 201Best v. State (1913)
1. —Murder—Bill of Exceptions—Reproduction of Testimony. Upon trial of murder and a conviction for manslaughter, there was no error in introducing in evidence part of the statement of facts made up on the first trial of the case which purported to be a part of the testimony of the defendant on said former trial, the official stenographer being absent from the State; besides, the bill of exceptions was defective. 2. —Same—Rule Stated—Bill of Exceptions. The allegations in a bill of exceptions should be full and explicit so that the matters presented to the court on appeal for revision may be comprehended without recourse to inferences. 3. —Same—Bill of Exceptions Must Be Explicit. A bill of exceptions should be so explicit as to enable the court on appeal to fully understand all the facts upon which the correctness or error of the ruling depends. 4. —Same—Must Set Out Proceedings—Bill of Exceptions. The bill of exceptions must set out the proceedings in the court below sufficiently to enable the court on appeal to know that an error has been committed, and must disclose in itself all that is necessary, and enough of the evidence to manifest the supposed error. 5. —Same—Motion for New Trial—Bill of Exceptions. A bill of exceptions can not be aided either by a statement in reply to a motion for new trial or by the statement of facts. 6. —Same—Controls Statement of Facts—Bill of Exceptions. A bill of exceptions controls even the statement of facts. 7. -—Same—Must be Verified—Bill of Exceptions. Objections or the mere statement of the ground of objection in the bill of exceptions is not the certificate of the judge that what is.stated is true, but is a mere objection of the parties. 8. —Same—Omissions—Inferences—Bill of Exceptions. Inferences will not be indulged in to supply omissions in a bill of exceptions, nor will the court on appeal supply omissions or aid the bill by inferences or presumptions. 9. —Same—Waiver—Bill of Exceptions. Objections not affirmatively mentioned in the bill of exceptions are deemed to have been waived. 10. —Same—Objections—Bill of Exceptions. A bill of exceptions to the admission of evidence is incomplete and insufficient which" simply states the grounds of objections to the errors, but fails to state as matters of fact the matters upon which the objections were predicated. 11. —Same—Evidence—Defendant as a Witness—Hearsay. Whatever an accused states or admits to any person when he is not under arrest, etc., can be proved by anybody who heard him make the admission, and it is not hearsay, and this includes his testimony on a former trial. 12. —Same—Statement of Facts—Evidence. Because what defendant had testified to on a former trial was contained in a statement of facts would not make it inadmissible. 13. —Same—Oral Testimony. A statement of facts of defendant’s testimony upon a former trial while not the testimony of another witness, is his own, and, therefore, admissible. 14. —Same—Condensed Statement—Reproduction of Testimony. Defendant’s testimony at a former trial contained in a statement of facts prepared for an appeal, being a condensed statement of the testimony, would not make it inadmissible on that ground. 15. —Same—Narrative Statement—Question and Answer. The testimony of defendant on a former trial contained in a statement of facts need not be in question and answer form to be admissable on trial; all that is necessary is that what is given is a narrative statement of his testimony. 16. —Same—Signature of Defendant—Witness. Testimony of the defendant given upon a former trial need not be signed by him in order to make it admissible in evidence; besides, such testimony is never signed by the witness. 17. —Same—Evidence—Bill of Exceptions—Statement of Facts. Where the bill of exceptions to the admission of the statement of facts made up during a former trial, containing part of the testimony of the defendant, did not exclude the idea that the testimony was not proven up in some of the methods prescribed by law to render it admissible, the same was defective and could not be reviewed on appeal. 18. —Same—Reproduction of Testimony—Witness. Former evidence of a witness may be established by the testimony of any person who can swear to it from memory, including a committing magistrate, the stenographer, the county clerk, or a juryman. Following Black v. State, 1 Texas Crim. App., 368, and other eases. 19. —Same—Rule Stated—Reproduction of Evidence—Practice. It has been the uniform practice of all the courts in this State to permit, when proper, the testimony of a party given on a former trial to be proved by anybody who heard his testimony and can undertake to reproduce it. Following Patterson v. State, 63 Texas Crim. Rep., 297. [Rehearing denied March 25, 1914.—Reporter.]
72 Tex. Crim. 206Smith v. State (1913)
1. —Keeping Disorderly House—Statement of Facts—Bills of Exception— Nunc Pro Tunc. Where no order was entered of record in a conviction for a misdemeanor extending the time for filing statement of facts and hills of exception, the same can not be considered, and no such order can be entered nunc pro tune after the appeal is perfected. Following Offield v. State, 61 Texas Crim. Rep., 585. 2. —Same—Evidence—Bill of Exceptions—General Reputation. The general reputation of a disorderly house may be proven by the character of the women residing at or frequenting said house, and witnesses may testify as to said general reputation of said inmates though they do not know them; besides, the bill of exceptions was defective. 3. —Same—Bill of Exceptions—Evidence. In the absence of a bill of exceptions to the admission of testimony, the same can not be considered on appeal. 4. —Same—Suspension of Sentence—Misdemeanor—Verdict. There is no law authorizing a suspension of sentence in a misdemeanor case, and where the jury returned a verdict recommending such suspension of sentence, there was no error in the court’s action in refusing to accept said verdict and instructing the jury to retire and return a verdict according to the court’s instructions. 5. —Same—Sufficiency of the Evidence. Where, upon trial of keeping a disorderly house, the evidence sustained the conviction, there was no error. [Rehearing denied January 14, 1914.—Reporter.]
72 Tex. Crim. 209Ex Parte Coffee (1913)
From Mitchell County. Original habeas corpus proceeding asking release from a judgment of the County Court finding relator guilty of contempt and assessing a fine of $10. The opinion states the case.
72 Tex. Crim. 212Perrett v. State (1913)
The opinion states the case.
72 Tex. Crim. 214Ex Parte Zuccaro (1913)
From Tarrant County. Original application for writ of habeas corpus, asking release under a commitment for contempt in the District Court, for violating an injunction restraining relator from exhibiting moving pictures on Sunday for pay. ' The opinion states the case.
72 Tex. Crim. 219Brice v. State (1913)
1. —Murder—Evidence—Hearsay. Where the record showed that the rejected testimony was simply hearsay and if the facts as to the insanity of defendant’s father were true, the defendant could have shown this by other testimony, there was no error. 2. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions accepted and filed by the defendant presented no error, there was nothing to review. 3. —Same—Evidence—Opinion of Witness. Where defendant’s witness and defendant were strangers to each other, there was no error in refusing to permit the witness to express an opinion of the acts and conduct of defendant with reference to defendant’s sanity. 4. —Same—Argument of Counsel. Where the argument of State’s counsel was not of such character as to cause in itself a reversal, and the court instructed the jury not to consider the same, there was no error. 5. —Same—Evidence—Opinion of Witness-—-Insanity. Where the State’s witness testified that he had been intimately associated with the defendant in the transaction of business and had known him a long time, detailing all the circumstances, there was no error in permitting the witness to testify as to defendant’s mental condition. Following Burt v. State, 38 Texas Crim. Rep., 397. 6. —Same—Insanity—Use of Intoxicants—Charge of Court. Under article 41, Renal Code, where defendant relied under his plea of insanity upon the recent use of intoxicating liquors, there was no error in refusing a requested charge to acquit the defendant if he was rendered insane by the long continued use of intoxicating liquors in conjunction with the recent use of such liquors. 7. —Same—Requested Charge—Intent. Where the evidence showed that the defendant was shooting the deceased with the intention to kill her, there was no error in refusing a requested charge as to a reckless discharge of firearms without the intention to shoot anyone, as the evidence did not raise this issue. 8. —Same—Insanity—Charge of Court. Where, upon trial of murder, the defendant interposed the plea of insanity by the evidence introduced, and the court correctly charged on the law of insanity as applicable to the facts, there was no error in refusing requested charges on the alleged issue of defendant’s former insanity, as this was not raised by the evidence, and there was no reversible error. 9. —Same—Misconduct of Jury—Motion for New Trial. Where the motion for new trial upon the ground of the misconduct of the jury was not supported by affidavit, there was no error in overruling same; besides, the record showed that the trial court, nevertheless, heard testimony and overruled the motion. 10. —Same—Evidence—Motion for New Trial. This court can not consider bills of exception containing the evidence on the hearing of the motion for new trial, unless the same is filed in term time; besides, there was no error. Following Probest v. State, 60 Texas Crim. Rep., 608. 11. —Same—Statement of Facts—Bills of Exception—Transcript. The law contemplates and plainly provides that a transcript of the statement of facts and bills of exception, etc., in a criminal case shall be filed in this court within ninety days after the final judgment has been entered by the trial court; where this is not done, the statement of facts and bills of exception filed three months after the transcript had been filed in this court can not be considered. 12. —Same—Statement of Facts—Bills of Exception—Filing Back. The district judge has no power to order a statement of facts filed back, but it is the duty of the district clerk to file same as of date he received same, and, if not filed within the time fixed by law, it will not be considered by this court. 13. —Same—Practice on Appeal—Admonition to Officers and Attorneys. Clerks of courts will be required to forward the transcript in criminal cases to this court within the time prescribed by law, and if the bills of exception and statement of facts are not filed within such time, they will not be considered. [Rehearing denied January 21, 1914.—Reporter.]
72 Tex. Crim. 226Elmore v. State (1912)
1.—Theft of Cattle—Evidence—Husband and Wife. Upon trial of theft of cattle, there was no error in admitting, in evidence the details of a conversation that took place between defendant and his wife in the presence and hearing of the witness in regard to the theft of the animal alleged to have been stolen. S.—Same—Evidence—Tracks. Where, upon, trial of theft of cattle, the State’s testimony showed the way the defendant and others went in going after the animal, etc., there was no error in admitting testimony by another State’s witness that he knew the horse defendant was riding on that occasion; that he was shod all round and that he knew the kind of tracks he made; that he traced this horse’s tracks, corroborating the testimony of other State’s witnesses as to the way defendant traveled, etc., as the objections could only go to the weight, and not the admissibility, of the testimony. 3. —Same—Evidence—Brand—Identity—Charge of Court. Upon trial of theft of cattle, where evidence of a brand was not offered to prove ownership, but the identity of the animal and was so limited in the court’s charge, there was no error. 4. —Same—Sufficiency of the Evidence. Where, upon trial of theft of cattle, the evidence sustained the conviction, there was no error in the court’s refusal to peremptorily charge an acquittal. 5. —Same—Charge of Court. Where, upon trial of theft of cattle, the evidence did not raise the issue submitted in the requested charge; there was no error in refusing same. 6. —Same—Accomplice—Charge of Court. Where, upon trial of theft of cattle, the evidence did not raise the issue of an accomplice as to a certain State’s witness, there was no error in the court’s failure to submit a charge thereon. Following Pinckard v. State, 62 Texas Crim. Rep., 602. 7. —Same—Mistake—Charge of Court. Where the evidence did not raise the issue that defendant believed the alleged stolen animal was his own, there was no error in the court’s failure to charge thereon. 8. —Same—Evidence—Tracks—Opinion of Witness—Comparison. Where, upon trial of theft of cattle, the State’s witness testified that he saw the tracks where the stolen cow was butchered and that they were the tracks of the blue horse defendant rides, this was not an opinion of the witness, but a positive fact, and was not based upon an opinion of the witness by a comparison of these tracks with others, and was, therefore, admissible. Distinguishing Parker v. State, 46 Texas Crim. Rep., 461, and other cases.
72 Tex. Crim. 231Boyette v. State (1913)
The opinion states the case.
72 Tex. Crim. 232Flores v. State (1913)
The opinion states the case.
72 Tex. Crim. 237Lee v. State (1913)
The opinion states the case.
72 Tex. Crim. 239Dosh v. State (1913)
The opinion states the case.
72 Tex. Crim. 240Chavario v. State (1913)
1. —Manslaughter—Statement of Facts—Pauper’s Affidavit—Mandamus. Where defendant, after conviction for manslaughter and before adjournment of court, filed his pauper’s affidavit that he .was unable to pay or give security for the costs for making out the stenographic statement of facts, and the stenographer failed to comply with said order and the record did not show that the defendant resorted to mandamus or other compulsory processes to require the stenographer to make out and file such statement, there was no reversible error. 2. —Same—Bills of Exception—Practice on Appeal. If the defendant desired a longer time than thirty days after adjournment of court within which to file his bills of exception, he should have secured an order from the trial judge extending the time beyond thirty days and to see that the same were properly approved and signed, and he is required to exercise due diligence, and there was no reversible error.
72 Tex. Crim. 242Byrd v. State (1913)
The opinion states the case.
72 Tex. Crim. 247Floyd v. State (1913)
1.—Murder—Statement of Facts—Charge of Court. In the absence of a statement of facts, this court must presume that the trial court charged the law, and all the law, applicable to the evidence. 2.—Same—Evidence—Res Gestae. Where the testimony objected to was res gestae, there was no reversible error in admitting same. 3. —Same—Evidence—Conduct of State’s Counsel. Where the testimony which was excluded was in fact admissible, there was no reversible error in permitting the State’s counsel to ask the question lie propounded. 4. —Same—Practice on Appeal. It is too late after verdict and judgment to raise the question as to the admissibility of evidence.
72 Tex. Crim. 249Hayes v. State (1913)
The opinion states the case.
72 Tex. Crim. 250Cooper v. State (1913)
1.—Murder—Negligent Homicide—Motive. The issue of negligent homicide, was not raised. Upon trial of murder, there was no error in admitting testimony showing a continuous ill-treatment of deceased by defendant, her husband, to the very time of the killing. 2.—Same—Evidence—Witnesses under Rule—Discretion of Court. The law gives the trial judge wide discretion in permitting witnesses to testify who have not been placed under the rule, and where no abuse of discretion was shown, there was no error. 3.—Same—Evidence—Leading Questions. Where, upon trial of murder, the record on appeal showed that the questions propounded by State’s counsel were legitimate, and not such leading questions as were objectionable, there was no error. Following Carter v. State, 59 Texas Crim. Rep., 73. 4. —Same—Murder in the Second Degree—Charge of Court. Where, upon trial of murder, the court gave a proper charge on murder in the second degree, there was no error. 5. —Same—Charge of Court—Exculpatory Statements. Where, upon trial of murder, the defendant claimed accidental shooting, and this question was properly submitted to the jury, there was no error. 6. —Same—Charge of Court—Implied Malice—Unlawful Killing. Where, upon trial of murder, the court properly submitted the question of implied malice, there was no error on this ground. Following McCoy v. State, 25 Texas, 33, and other cases.
72 Tex. Crim. 258Gusman v. State (1913)
1. —Murder—Charge of Court—Murder in the Second Degree. Where, upon trial of murder, the court’s charge on murder in the second degree was not subject to the criticisms made thereto by the defendant, and was a proper charge under the facts of the ease, there was no error. Davidson, Judge, dissenting. 2. —Same—Argument of Counsel—Reversible Error. Where, upon trial of murder, the district attorney, in his address to the jury, stated that he had learned that the defendant was a bad man and that he had committed a crime in Mexico, etc., for all of which there was no evidence, the same is reversible error. 3. —Same—Leading Questions—Interpreter. Where, upon trial of murder, some of the State’s witnesses were Mexicans and testified through an interpreter, leading and suggestive questions should not have been permitted.
72 Tex. Crim. 265Bybd v. State (1913)
72 Tex. Crim. 265Byrd v. State (1913)
Tried below before the Hon.. J. N. Viles. Appeal from a conviction of unlawfully practicing medicine; penalty,, a fine of $50 and one day in jail.
72 Tex. Crim. 266Cooper v. State (1913)
The opinion states the case.
72 Tex. Crim. 271Darnell v. State (1913)
The opinion states the case.
72 Tex. Crim. 273Leach v. State (1913)
1. —Burglary—Bills of Exception—Statement of Facts. In the absence of bills of exception and statement of facts, the court’s ruling on the rejection of testimony can not be reviewed. 2. —Same—Circumstantial Evidence—Charge of Court. In the absence of a statement of facts, a complaint that the court failed to charge on circumstantial evidence, and as to newly discovered evidence, can not be reviewed.
72 Tex. Crim. 274Dean v. State (1913)
The opinion states the case.
72 Tex. Crim. 275Young v. State (1913)
Assault to Murder—Notice of Appeal. Where the record disclosed that no notice of appeal was given during the term of court at which appellant was tried, this court has no jurisdiction. Following Offield v. State, 61 Texas Crim. Rep., 585.
72 Tex. Crim. 276Clemmons v. State (1913)
Robbery—Aggravated, and Simple Assault—Charge of Court. Where, upon trial of robbery, the evidence raised the issue and that alone as to whether defendant committed the robbery, there was no error in the court’s failure to charge on aggravated and simple assault.
72 Tex. Crim. 277Allen v. State (1913)
The opinion states the case.
72 Tex. Crim. 278Orth v. State (1913)
1. —Keeping Disorderly House—Statement of Facts—Bills of Exception. Where the alleged statement of facts and bills of exception contained in the record in an appeal from the County Court were not filed within the time prescribed by law, the same could not be considered on appeal. 2. —Same—Indictment. Where, upon trial of keeping a disorderly house for purposes of prostitution, the indictment followed approved precedent, the same was sufficient. Following Willis v. State, 34 Texas Crim. Rep., 148, and other cases.
72 Tex. Crim. 279Yates v. State (1913)
The opinion states the case.
72 Tex. Crim. 282Cole v. State (1913)
1. —Occupation—Intoxicating Liquors—Local Option—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence was sufficient to sustain the conviction, there was no error. 2. —Same—Continuance—Want, of Diligence. Where the application for continuance, and the record on appeal, clearly showed a want of diligence to procure the attendance of absent witnesses, there was no error in overruling the motion. 3. —Same—Jury and Jury Law—Challenge. Where the record showed that the alleged objectionable juror was qualified, and was challenged by both parties, and no other objectionable juror served on the ease, there was no error. 4. —Same—Evidence—Contradicting Witness. A witness can not be impeached on immaterial matter, and there was no error in not permitting defendant’s counsel to ask State’s witness whether he had bought any whisky from any other person, intending to show by such other person that no such sale had been made. 5. —Same—Evidence—Other Transactions. Testimony by witnesses of purchases of intoxicating liquors from defendant about the date alleged in the indictment was admissible in evidence, without the indictment alleging such sale. 6. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions is wholly defective and as qualified by the trial court presented no error, there was no reversible error. 7. —Same—Requested Charge—General Objections. Where the requested charge was substantially covered by the court’s main charge, there was no error; besides, the objection thereto was entirely too general. Following Byrd v. State, 69 Texas Crim. Rep., 35, 151 S. W. Rep., 1068. 8. —Same—Definition of Occupation—Charge of Court. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the court gave a full, fair and complete charge under the law applicable to the facts, and also defined properly what is meant by pursuing the occupation of selling intoxicating liquors in local option territory, there was no reversible error. [Rehearing denied January 21, 1914.—Reporter.]
72 Tex. Crim. 285Gordon v. State (1913)
1. —Assault to Murder—Sufficiency of the Evidence. Where, upon trial of assault to murder, the evidence sustained the conviction, there was no error. 2. —Same—Newly Discovered Evidence—Affidavits—Attorney and Client. Where the affidavits supporting a motion for new trial on account of newly discovered evidence were sworn to before appellant’s attorney, they can not be considered on appeal. Following Maples v. State, 60 Texas Crim. Rep., 169, and other cases; besides, the affidavits were insufficient in other respects.
72 Tex. Crim. 286Daniels v. State (1913)
Assault to Murder—Statement of Facts—Intent to Bob—Carving. Where appellant complained of the court’s refusal to submit his requested charge to acquit the defendant if he acted with intent to rob, there was no error in refusing the same, on-trial of assault to murder, even if the evidence showed an assault with intent to rob, as the State had the right to carve; besides, in the absence of a statement of facts, this complaint can not be reviewed on appeal.
72 Tex. Crim. 287Bradley v. State (1913)
The opinion states the case.
72 Tex. Crim. 287Vernon v. State (1913)
The opinion states the case.
72 Tex. Crim. 290Powers v. State (1913)
Tried below before the Hon. W. L. Crawford. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. The opinion states the case.
72 Tex. Crim. 294Haller v. State (1913)
1. —Bribes—Officer—Legal .Arrest—Warrant. Where, upon trial of bribing a policeman of an incorporated city, the evidence showed that just before the bribe was offered the officers made an arrest of a woman who was about to ply her vocation as a common prostitute, and that they acted without a warrant, the same was a legal arrest under article 261, Code Criminal Procedure, and the city ordinances, and defendant was therefore guilty of the offense of offering a bribe on the condition that the officer should release the prostitute. 2. —Same—Evidence—General Reputation. There was no error in admitting in evidence the general reputation of the woman arrested to be. that of a common prostitute, and also to show that the offer to bribe by the defendant was made to both officers who made the arrest, it being all one and the same transaction, and also, to show the reputation of the house in which the arrest was made. 3. —Same—Sufficiency of the Evidence. Where, upon trial of offering a bribe to a policeman of an incorporated city, the evidence sustained the conviction under a proper charge of the court, there was no error. [Rehearing denied January 21, 1914.—Reporter.]
72 Tex. Crim. 296Bacon v. State (1913)
Appeal from the County Court of Wichita. Tried below before the Hon. C. B. Felder. Appeal from a conviction of adultery; penalty, a fine of $75. The recognizance filed in this case did not state the penalty assessed against appellant.
72 Tex. Crim. 297Towery v. State (1913)
Aggravated Assault—Recognizance. Where the recognizance in a misdemeanor case did not state the penalty assessed against appellant, the appeal must be dismissed.
72 Tex. Crim. 298Humphries v. State (1913)
1. —Keeping Disorderly House—Statement of Facts. Where the purported statement of facts was neither signed by appellant’s counsel nor approved by the county judge, the same could not be considered on appeal. 2. —Same—Practice on Appeal. In the absence of a statement of facts, the indictment being sufficient in law, the conviction must be sustained.
72 Tex. Crim. 298Forester v. State (1913)
The opinion states the case.
72 Tex. Crim. 304Ex Parte Francis (1914)
From Wilbarger County. Original habeas corpus proceeding asking release of relator under a capias issued out of the County Court charging him with violating the Pool and Billiard Local Option Law.
72 Tex. Crim. 366Lawless v. State (1914)
The opinion states the case.
72 Tex. Crim. 367Newman v. State (1914)
The opinion states the case.
72 Tex. Crim. 368Sandaval v. State (1914)
Local Option—Election—Felony—Misdemeanor. Where defendant was convicted of a violation of the local option law in the County Court, and contended that said court had no jurisdiction because the offense, if any, was a felony, and should be tried in the District Court, and it appeared from the record that since the first local option election in the justice precinct, in which prohibition carried, the county of the prosecution was organized out of the old county in which said precinct was situated, and after such organization and the Act making it a felony, another election was held in a commissioner’s precinct in the new county in which part of said justice precinct was embraced, and in which prohibition carried, the latter election controls and the District Court alone has jurisdiction. Following Enriquez v. State, 60 Texas Crim. Rep., 580.
72 Tex. Crim. 371Williams v. State (1914)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained the conviction under a proper charge of the court, there was no error. 2. —Same—House—Show Window. Where, upon trial of burglary, the evidence showed that when the store or building was built a place was provided for the display of goods by means of a show window, which was a part of the building, although partitioned from the main building, and that this show window was burglarized, the same came within the definition of a house under our burglary statute. Article 1309, Penal Code. Following Jame v. State, 63 Texas Crim. Rep., 559, and other cases. 3. —Same—Evidence—Bills of Exception. Where the bills of exception were defective as to the rejection of certain testimony, they could not be considered; besides, if considered, there was no error.
72 Tex. Crim. 374Cober v. State (1914)
1. —Sunday Law—Allusion to Defendant’s Failure to Testify. Where State’s counsel alluded to defendant’s failure to testify, the same was reversible error. 2. —Same—Practice in County Court—Sheriff. It was improper for the sheriff to interrupt defendant’s counsel in the examination of witnesses, and such conduct should not be tolerated by the trial court. 3. —Same—Evidence—Custom. Upon trial of a violation of the Sunday law, there was no error in rejecting testimony that it was the custom of parties to sell intoxicants under license and on prescription on Sunday.
72 Tex. Crim. 375Blalack v. State (1914)
1.—Incest—Variance—Insufficiency of the Evidence. Where the indictment charged that defendant and Sara Walser were the children of the same parents and. that Sara Walser was the mother of the prosecutrix with whom defendant is alleged to have had incestuous intercourse, the State was required to prove said allegation, and testimony that prosecutrix was a niece of defendant did not prove she was the,„daughter of Sara Walser, and the conviction could not he sustained. 2.—Same—Accomplice—Charge of Court. Where, upon trial of incest, the court’s charge on accomplice testimony was defective, there was reversible error.
72 Tex. Crim. 377Lewis v. State (1914)
The opinion states the case.
72 Tex. Crim. 381South v. State (1913)
1.—Occupation—Traveling Retail Peddler—Patent Medicine. Article 130, Penal Code, defining the offense of unlawfully pursuing and following the occupation or calling of a traveling retail peddler of patent medicines without paying the license tax therefor, and the Revised Statutes relating thereto are constitutional. Following Needham v. State, 51 Texas Crim. Rep., 248, and other eases. 2. —Same—Sufficiency of the Evidence. Where, upon trial of unlawfully pursuing the occupation of a traveling retail peddler of patent medicines without license, the evidence sustained the conviction, there was no error. 3. —Same—Complaint—Information. Where the complaint and information charging defendant with unlawfully pursuing the occupation of a traveling retail peddler of patent medicines without paying the tax required by law, etc., followed the statute, the same was sufficient. 4. —Same—Constitutional Daw—Occupation Tax—Classification. The Constitution expressly gives the Legislature power and authority to impose occupation taxes both upon natural persons and corporations, and recognizes that classes may he made for that purpose, and persons who travel around as peddlers may be differentiated from merchants who sell the same articles. Following Camp v. State, 61 Texas Crim. Rep., 229, and other eases. 5. —Same—Definition of Offense—Statutes Construed. Under article 3, Penal Code, as it now stands, an offense is not required to he specially defined, but any act or commission may be made a penal offense without being specially defined, so that article 130, Penal Code, in connection with the Revised Civil Statutes prescribing what occupations may he taxed, etc., prescribes a penal offense and is constitutional. Following Ex parte Williams, 31 Texas Crim. Rep., 262, and other eases. 6. —Same—Penalty— Commissioners Court. The law is not void because the penalty in part may be fixed by the Commissioners Court levying a tax of one-half of that of the State for the use of the county. Following Fahey v. State, 27 Texas Crim. App., 146, and other eases. 7. —Same—Police Regulation—Revenue—Punishment for Debt. The failure to pay an occupation tax and take out a license therefor is an offense, whether regarded for revenue or for revenue and police regulation, and is not a punishment for debt.
72 Tex. Crim. 381Mayes v. State (1914)
The opinion states the case.
72 Tex. Crim. 386Staha v. State (1914)
The opinion states the case.
72 Tex. Crim. 387Johnson v. State (1913)
1. —Theft of Mule—Venue—Jurisdiction. Article 245, Code Criminal Procedure, expressly provides that where property is stolen in one county and carried by the defendant into another, he may be prosecuted in either, and to sustain the allegation of venue, it shall only be necessary to prove that by reason of the facts existing in the case, the county where such prosecution is carried on has jurisdiction. 2. —Same—Venue—Presumption—Practice—Reasonable Doubt. Under article 938, Code Criminal Procedure, this court will presume that the venue was proven in the court below, unless such question was made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions properly allowed, and the question can not be raised on motion for new trial or by requested charge, nor need it be proved beyond a reasonable doubt. 3. —Same—Circumstantial Evidence—Charge of Court. Where defendant’s guilt did not depend purely upon circumstantial evidence, there was no error in the court’s failure to charge thereon. 4. —Same—Husband and Wife—Cross-examination—Charge of Court. Where, upon trial of theft of a mule, it was a material question where defendant was at a certain time, and defendant introduced his wife, who testified that he was at home during that time, and that he left early in the morning saying that he was going to a certain place, and she denied on cross-examination that she told a State’s witness that her husband was going to a different place, there was no error in permitting the State to show by said witness that she did make that statement to him, the court properly limiting said testimony to her impeachment. Following Dobbs v. State, 54 Texas Crim. Rep., 550, and other eases. 5. —Same—Alibi—Charge of Court. Where, upon trial of theft of a mule, defendant claimed an alibi under the evidence, the court properly charged thereon, there was no error. 6. —Same—Sufficiency of the Evidence. Where, upon trial of theft of a mule, there was other evidence in addition to the testimony of an accomplice which supported the conviction, there was no error. 7. —Same—Circumstantial Evidence—Charge of Court—Accomplice. It is not error to fail to charge on circumstantial evidence although the only direct evidence is that of an accomplice, and- where the court required proper corroboration of the accomplice testimony, there was no error in the court’s failure to charge on circumstantial evidence. Following Wampler v. State, 28 Texas Crim. App., 353, and other cases. 8. —Same—Husband and Wife—Cross-examination—Impeachment. Where defendant’s wife testified that he stayed at her house all night and left there the next morning with the accomplice, telling her where he was going, and it became material for the State to impeach her testimony on this point, it clearly had a right to do so. Following Smith v. State, 44 S. W. Rep., 520, and other cases.
72 Tex. Crim. 393Dickerson v. State (1914)
1. —Minor—Gift—Intoxicating Liquors—Former Jeopardy—Separate Offense. Where defendant was tried and convicted for giving and delivering intoxicating liquors to a minor, etc., his plea of former jeopardy was correctly stricken out, where it was disclosed that he had been before charged and acquitted of a violation of the local option law; as these offenses are entirely separate and distinct. 2. —Same—Charge of Court—Bill of Exceptions. Where the hill of exceptions gives no reason why a requested charge in a misdemeanor case should have been given, the same presents no reversible error. Following Ryan v. State, 64 Texas Crim. Rep., 628. [Rehearing denied January 28, 1914.—Reporter.]
72 Tex. Crim. 394King v. State (1914)
1. —Assault to Murder—Statement of Facts. Where the purported statement of facts is entirely made up by questions and answers and is not approved either by counsel or the trial court, the same can not be considered on appeal. 2. —Same—Suspension of Sentence. It is necessary, where the plea of suspension of sentence is interposed, that the jury, in their verdict, recommend such suspension, otherwise the court can not do so. Following Roberts v. State, 158 S. W. Rep., 1003, and other eases. Distinguishing Snodgrass v. State, recently decided. 3. —Same—Suspension of Sentence—Distinction Recognized. There is a broad distinction recognized by law and the decisions between the suspension of sentence, and that which suspends a judgment or its execution, or which intervenes and prevents the passing of sentence. 4.—Same—Statement of Facts. In the absence of a statement of facts, other questions presented can not be revised on appeal.
72 Tex. Crim. 396Corbitt v. State (1914)
1.—Murder—Dying Declarations—Evidence. Where, upon trial of murder, the proper predicate having been laid, there was no error in admitting in evidence the dying declarations of deceased that he was bound to die; that the trouble came up over nothing; that the parties had been quarreling about the books and that deceased started to get up and go away when defendant cut him. 2.—Same—Evidence—Dying Declarations. In the absence of a bill of exceptions to the admissibility of testimony showing the dying declarations of deceased, the same can not be reviewed on appeal; besides, the same were admissible, there being nothing in the record to show that defendant weakened the State’s case or that he asked special instructions. 3. —Same—Evidence—Res Gestae. Upon trial of murder, there was no error in admitting testimony that deceased was carried to a drug store, where it was found that his intestines were protruding and that he remarked that that fellow took my life for nothing, all this occurring right after the difficulty. 4. —Same—Evidence—Ill-will. Upon trial of murder, there was no error in admitting testimony that some two or three weeks before the fatal encounter, defendant and deceased quarreled over their books, defendant objecting to the manner in which deceased kept the books, defendant claiming in his testimony that deceased and not he made such objections. It was also admissible to show motive. 5. —Same—Cause of Death—Charge of Court. Where there was no evidence of improper treatment of the deceased after be was wounded by the defendant, there was no error in refusing a requested charge on this subject. 6. —Same—Deadly Weapon—Charge of Court. Where, upon trial of murder, there was proof that the knife used by the defendant was a deadly weapon, but the court, nevertheless, submitted this question to the jury, there was no error. 7. —Same—Charge of Court—Manslaughter—Sudden Passion—Adequate Cause. Adequate cause without passion will not reduce the offense to manslaughter, neither will passion without adequate cause; it takes the two combined to make manslaughter, and where the court properly submitted the law thereon, there was no error. Following Blackwell v. State, 29 Texas Crim. App., 194, and other cases. 8. —Same—Manslaughter—Charge of Court—Conjunctive. Where, upon trial of murder, the court in defining adequate cause instructed the jury that an assault and battery causing pain and bloodshed, etc., is deemed adequate cause, but in applying the law to the facts, so instructed the jury that the use of the word “and” in place of the word “or” in the definition of the offense, did not present reversible error, there was no error. Davidson, Judge, dissenting. 9. —Same—Evidence—Opinion of Witness—Res Gestae. The words by the deceased, “that fellow took my life for nothing,” was admissible as res gestae, and was not a mere expression of opinion. Following Carter v. State, 8 Texas Crim. App., 372, and other Cases. 10. —Same—Definition of Offense—Charge of Court—Manslaughter. Although there may have been some slight error in that part of the court’s charge defining adequate cause, yet the court in applying the law to the case gave an accurate charge of the law applicable to the evidence, there was no reversible error. Following Carter v. Stale, 59 Texas Crim. Rep., 73, and other cases. Davidson, Judge, dissenting.
72 Tex. Crim. 404Bowen v. State (1914)
The opinion states the case.
72 Tex. Crim. 408Mistrot v. State (1914)
The opinion states the case.
72 Tex. Crim. 410Neuvar v. State (1914)
The opinion states the case.
72 Tex. Crim. 414Essery v. State (1913)
1.—Murder—Verdict—Discharge of Jury. Where the court had accepted the verdict and discharged the jury, he had no authority or power to reconvene this jury two days later and permit them to amend their verdict; however, the verdict was sufficient as originally rendered. 2. —Same—Degrees of Murder—Verdict—Statutes Construed—Case Stated. Where, upon trial of murder, under the old law defining degrees of murder, the indictment being in the usual form that defendant with malice aforethought did the killing, and the evidence did not raise the issue of any lower degree than murder in the first degree, which alone was submitted in the court’s charge, and the jury returned a verdict finding the defendant guilty as charged in the indictment and assessed his punishment at imprisonment for life, the same was sufficiently certain upon which to base a judgment of conviction of murder in the first degree. Davidson, Judge, dissenting. 3. —Same—Rule Stated—Degrees of Murder—Verdict—Charge of Court. While under the old law, when murder was divided into two degrees and both degrees were submitted to the jury, it was a valuable right for the defendant to have them determine of what degree of murder he had been adjudged guilty, yet where, under the law, the court submitted to the jury only murder in the first degree and they were not and could not be authorized to return a verdict of guilty of murder of any other degree than murder in the first degree, a verdict which found the defendant guilty as charged in the indictment and assessed his punishment at imprisonment for life is sustained. Davidson, Judge, dissenting. 4. —Same—Practice in District Court—Harmless Error. While perhaps it was erroneous for the court to accept a verdict which did not specifically find that defendant was guilty of murder in the first degree, yet, when the verdict is taken in connection with the indictment and the charge of the court, and the only conclusion is that the verdict found him guilty of murder in the first degree, which was the only issue submitted, it was not reversible error. Davidson, Judge, dissenting. 5. —Same—Rule Stated—Statutes Construed. When murder was divided into two degrees it was intended that when the two degrees were submitted to the jury, they should he required to find of what degree defendant had been adjudged guilty; but the Code providing that murder committed in a certain way is murder in the first degree, the law so makes it and the jury by their verdict can not find otherwise. 6. —Same—Hot Reversible Error—Case Stated—Presumption. Where no error was committed in the trial of the case, as is shown by the record, and the only matter complained of is that the verdict in express language did not state of what degree of murder the defendant was found guilty, and the charge of the court only submitted murder in the first degree, it must be presumed that the facts showed that if defendant was guilty of any offense, it was murder in the first degree, and the charge of the court, the verdict and the indictment must be looked to in passing upon this question, and there is no reversible error. Davidson, Judge, dissenting. 7. —Same—Express Malice—Murder in the First Degree. Under article 1141, former Penal Code, all murder committed with express malice is murder in the first degree, and all murder not of the first degree is murder of the second degree, and under all our decisions murder with implied malice is murder in the second degree, and can not be murder in the first degree, and where the indictment charged express malice and was sustained by the evidence, and murder in the first degree alone was submitted to the jury, who found defendant guilty as charged in the indictment and assessed his punishment at imprisonment for life, the verdict must be sustained as one finding defendant guilty of murder in the first degree; and the whole record must be looked to in construing this verdict. Davidson, Judge, dissenting. 8. —Same—Allegations by Inclusion—Indictment. Where the indictment, under all the forms and under the statute and decisions of this State, on its face expressly charged murder in t the first degree and nothing else, all lower degrees of homicide are only charged by inclusion, and not otherwise, and where defendant was found guilty as charged under a charge of the court submitting murder in the first degree alone, and the evidence did not raise any other degree, such verdict is sustained. Davidson, Judge, dissenting. 9. —Same—Statutes Construed—Degrees of Murder. Article 1142, Penal Code, must be construed in 'the light of other articles in the Penal Code and the Code of Criminal Procedure, and so construing the same, a verdict in a murder ease, which finds defendant guilty as charged in the indictment and assesses his punishment for life is not void because it does not expressly find in so many words of what degree of murder he is guilty, as it is absolutely certain that thereby a verdict for murder in the first degree was intended under the record of this case. Distinguishing Slaughter v. State, 24 Texas, 410; Buster v. State, 42 Texas, 315. Davidson, Judge, dissenting. 10. —Same—Charge of Court—Verdict—Rule Stated. The verdict of the jury must be considered in connection with the charge of the court even more so than in connection with the indictment itself. Following Marshall v. State, 4 Texas Crim. App., 549; Styles v. State, 37 Texas Crim. Rep., 599, and other cases. Distinguishing Burton v. State, 62 Texas Crim. Rep., 648; McCloud v. State, 37 Texas Crim. Rep., 237, and other cases. 11. —Same—Cases in Point—Rule Stated. The ease of McGee v. State, 39 Texas Crim. Rep., 190, even goes further than the rule laid down in this case with reference to degrees of offenses and fully sustains the opinion in this case. Following Holland v. State, 38 Texas, 474. 12. —Same—Practice in District Court—Degrees of Murder. In all murder trials under the old statute, the trial court should see to it that the verdict read guilty of murder in the first degree or in the second degree, as the case may be. Not only because the statutes say so, but to avoid just such a question as arises and is urged in this case. [Rehearing denied January 14, 1914.—Reporter.]
72 Tex. Crim. 439Suesberry v. State (1913)Affirmed
The opinion states the case.
72 Tex. Crim. 442Bizzell v. State (1913)
1. —Murder—Jury and Jury Law—Special Venire—Challenges. Where, upon trial of murder, in the organization of the jury seven of the special veniremen did not answer to their names as they were called on their voir dire, and the court was informed by the sheriff that the absent jurors were exempt and had claimed their exemption, although no affidavits were on file, whereupon the court excused the said absent jurors over the objection of defendant, who demanded that each be brought into court, and declined to proceed until this was done, which the court refused, whereupon the State peremptorily challenged all the absent jurors, and the court forced the defendant to proceed to trial, there was no reversible error, as defendant had not exhausted all his challenges and no injury was shown. Davidson, Judge, dissenting. 2. —Same—Exempt Jurors—Practice—Statutes Construed. Under the Act of April 16, 1907, article 676, Code Criminal Procedure, persons summoned as jurors on a special venire who claim their exemption, may make oath before any authorized officer and file their affidavits with the clerk, which shall constitute sufficient excuse, without appearing in person. But where even this is not. done, yet the State peremptorily challenges such jurors, no substantial right of defendant is violated in the absence of any injury shown. Davidson, Judge, dissenting. 3. -—Same—Directory Statutes—Statutes Construed. Articles 673, 675, 676, 677, 696, and all the statutes regulating the formation of a jury in a capital case, are not mandatory but only directory, and where under article 690, Code Criminal Procedure, the State peremptorily challenges the absent special veniremen, and defendant has not exhausted his peremptory challenges, and the court was advised that each absent juror had a lawful excuse, there was no error in forcing defendant to proceed to trial. Following Jackson v. State, 30 Texas Crim. App., 664, and other cases. Davidson, Judge, dissenting. 4. —Same—Change of Law—Statutes Construed—Practice. The Act of 1907, supra, article 676, under which persons may file their exemption as special veniremen with the clerk, without appearing in person, has not changed the practice with reference to permitting the State to peremptorily challenge absent special veniremen without assigning any reason, and the court forcing defendant to proceed to trial. Following Miller v. State, 47 Texas Crim. Rep., 329, and other cases. 5. —Same—Ex Parte Affidavits—Practice on Appeal. This court will not consider ex parte affidavits filed in this court to contradict bills of exception showing that the district attorney peremptorily challenged the absent special veniremen. Following Pye v. State, 71 Texas Crim. Rep., 94.
72 Tex. Crim. 450Nolen v. State (1913)
The opinion states the case.
72 Tex. Crim. 452Boyd v. State (1913)
The opinion states the case.
72 Tex. Crim. 453Newsome v. State (1914)
Aggravated Assault—Statement of Facts. Where the alleged statement of facts and bills of exception were filed more than twenty days after the adjournment of the County Court, they can not be considered on- appeal, and the appellant is not allowed thirty days to file such statement, etc. Davidson, Judge, dissenting.
72 Tex. Crim. 454Martin v. State (1914)
The opinion states the case.
72 Tex. Crim. 455Kaufman v. State (1914)
The opinion states the case.
72 Tex. Crim. 457James v. State (1914)
1. —Murder—Variance—Date of Offense. Where the indictment alleged the murder to have been committed about March 30, and the evidence showed that it was committed on the 'day previous thereto, the matter presented no variance. 2. —Same—Charge of Court—Objections—Practice—Statutes Construed. Where defendant was not tried until September, 1913, the law which provides that the judge shall furnish counsel with a copy of his charge was in force, and under this law counsel for defendant must at that time, before the charge was read to the jury, present his objections thereto in writing distinctly specifying each ground of objection. 3. —Same—Charge of Court—Practice—Procedure. Where the record on appeal disclosed that defendant’s counsel was furnished a copy of the charge of the court during his trial for murder and before it was read to the jury, and presented no objections thereto, the fact that the offense was committed before the above law went into effect does not change the practice, and he can not complain of the charge of the court for the first time in his motion for new trial, as the Act of the Thirty-third Legislature relates solely to the procedure in the trial of criminal cases. Following Mrous v. State, 31 Texas Crim. Rep., 597. 4. —Same—Case Stated—No Fundamental Error. Where chapter 138 of the Acts of the Thirty-third Legislature with reference to the charge of the court, in requiring that objections thereto must then be made in writing, etc., was in force and effect when defendant was tried for murder, and he took no such exceptions to the charge of the court before it was read to the jury or during the progress of the trial, the same can not be reviewed on appeal, no fundamental error appearing of record. 5. —Same—Accomplice—Charge of Court—Limiting Testimony—Exceptions to Charge. Where appellant complained for the first time in his amended motion for new trial that the charge of the court failed to instruct the jury as to the law governing accomplice testimony, and it appeared of record that chapter 138 of the Acts of the Thirty-third Legislature requiring that written exceptions must be made to the charge of the court before it is read to the jury was in force, this court can not review said matter. 6. —Same—Sufficiency of Evidence. Where, upon trial of murder and a conviction of murder at imprisonment for life was sustained by the evidence, there was no error on that ground. 7. —Same—Newly Discovered Evidence—Impeachment. Where the alleged newly discovered testimony only tended to impeach the State’s witness with reference to the fact that said witness did the shooting, and the court instructed the jury to acquit the defendant if from the evidence they had a reasonable doubt as to whether or not he did kill deceased, there was no error. 8. —Same—Degrees of Murder—Charge of Court—Jurisdiction. Where, upon trial of murder, it appeared on appeal from the record that the law defining murder under chapter 116 of the Act of the Thirty-third Legislature was not in effect when said offense was alleged to have been committed, but the Act of the Thirty-third Legislature, chapter 138, with reference to presenting exceptions to the charge of the court in writing before the same is read to the jury was in effect at the time of the trial, and it further appeared that defendant made no such exceptions or complaint at the time the charge of the court was delivered to him for inspection, and did not raise this question as to the degrees of murder until two months after the term of court at which he was tried adjourned, and when the case was pending in the Court of Appeals, the matter can not be reviewed on appeal, as the question did not go to the jurisdiction of the trial court, and the charge of the court authorized the jury to inflict a penalty of not less than five years. 9. —Same—Motion for Mew Trial—Practice on Appeal. Where defendant was convicted of murder and his penalty assessed at imprisonment for life, and made no exceptions to the charge as required under the present law, but contended that he could do so in his motion for new trial, and therein stated that the verdict is unsupported by the evidence and is contrary to law, this would only raise the question of the sufficiency of the evidence, and the same being sufficient to sustain the conviction under the present law, there was no error. 10. —Same—Bills of Exception—Article 743, Code of Criminal Procedure. Where the law of the Thirty-third Legislature with reference to presenting written exceptions to the court’s charge at the time it is tendered for inspection, etc., was in force, the contention of appellant that as the court granted time to file bills of exception that thereby he could file bills of exception to the charge of the court within the time granted is untenable, where he had failed to make exceptions to the charge as required by the above law; especially where he had not complained thereof in his motion for new trial. Article 743, Code Criminal Procedure, as amended. Davidson, Judge, not concurring.
72 Tex. Crim. 463Curry v. State (1913)
The opinion states the case.
72 Tex. Crim. 481Black v. State (1913)
1. —Theft from Person—Indictment. Where, upon trial of theft from the person, the indictment followed approved precedent, there was no error. 2. —Same—Sufficiency of the Evidence. . Where, upon trial of theft from the person, the evidence showed that the defendant was a principal in the commission of the offense, and supported the conviction under a proper charge of the court, there was no error. [Rehearing denied January 14, 1914.—Reporter.]
72 Tex. Crim. 482Stoner v. State (1913)
1. —Assault to Murder—Change of Venue—Discretion of Court. In the absence of an abuse of discretion by the trial court in overruling an application for change of venue, there was no error. Following Tubb v. State, 55 Texas Crim. Rep., 616, and other cases. 2. —Same—Continuance—Want of Diligence. Where the application for continuance showed a want of diligence to secure the attendance of absent witnesses, and the record showed that their testimony would probably not have been true, there was no error in overruling the motion. 3. —Same—Jury and Jury Law—Sheriff—Deputy. Where, upon, trial of assault to murder, the evidence showed that the sheriff and his deputies were implicated more or less in the offense, there was no error in the court’s action in instructing the constable to summon the talesmen and placing the jury in charge of the deputy constable. 4. —Same—Bills of Exception. In the absence of the approval of the trial judge of bills of exception, the same can not be considered on appeal. 5. —Same—Charge of Court—Self-defense—Provoking Difficulty. Where, upon trial of assault to murder and a conviction of aggravated assault, the evidence showed that the prosecuting witness had published some matter in the newspaper at which the sheriff and his deputies took umbrage, and the State contended that the alleged assault was made without provocation, and defendant’s defense was that he attempted to arrest the defendant for disturbing the peace and was then required to act in self-defense, and the court submitted in his charge on self-defense the question of arrest, disturbing the peace, and provoking the difficulty as brought out by the facts in evidence, there was no error in the court’s failure to charge that the defendant must have done some act or used some language at the time calculated to provoke the difficulty. [Rehearing denied January 14, 1914.—Reporter.]
72 Tex. Crim. 487Ex Parte Mussett (1913)
From Tarrant County. Original application for writ of habeas corpus, asking a release from commitment for contempt for violating an injunction issued from the District Court restraining relator from exhibiting moving pictures on Sunday for pay.
72 Tex. Crim. 491Harris v. State (1914)
The opinion states the case.
72 Tex. Crim. 493Hughes v. State (1914)
Keeping Disorderly House—Statement of Facts. In the absence of a statement of facts and bills of exception, the alleged insufficiency of the evidence, and the refusal to give requested instructions, etc., can not be considered on appeal.
72 Tex. Crim. 494Lisenbee v. State (1914)
Food Law—Misdemeanor—Statement of Facts—Bills of Exception. Where the purported statement of facts and bills of exception were not filed within time in the County Court, the same can not be considered on appeal, and in the absence thereof, the case must be affirmed; the information charging an offense under the law.
72 Tex. Crim. 494Ferguson v. State (1914)
Appeal from the County Court of McLennan. Tried below before the Hon. George H. Denton. Appeal from a conviction of permitting lewd women on the premises of a retail liquor dealer; penalty, a fine of $500 and six months confinement in the county jail.
72 Tex. Crim. 496Jones v. State (1914)
1. —Pandering—General Reputation of House. Where defendant was being prosecuted for procuring a place of the alleged female as inmate of a house of prostitution, testimony of the general reputation of said house being that of a house of prostitution was admissible. Following Harkey v. State, 33 Texas Crim. Rep., 100, and other eases. 2. —Same—Indictment—Venue—Then and There. Where the indictment alleged that defendant did, in the county of the prosecution, then and there procure a place, etc., the words related back that the cause was situated in the county of the prosecution. Following De Los Santos v. State, 65 Texas Crim. Rep., 518. 3. —Same—Former Jeopardy—Bill of Exceptions—Discretion of Court. In the absence of a bill of exceptions in granting a motion to strike from the record defendant’s plea of former jeopardy, the same can not be considered on appeal; besides, the action of the court in discharging a jury upon a former trial of the case did not show any abuse of discretion. 4. —Same—Evidence—Acts of Defendant. Upon trial of pandering, there was no error in admitting in evidence the acts and conduct of the defendant and his relation with the alleged female; however, her testimony relating to his cursing and abusing her should have been excluded on proper objections. 5. —Same—Name of Party—Pandering. Upon trial of pandering, in the absence of any grounds stated in the bill of exception, there was no error in not permitting the females in question to reveal their real names, they being generally known by their assumed names. 6. —Same—Charge of Court—Weight of Evidence. Where, upon trial of pandering, the jury returned and propounded a question to the court whether the words “consent” and “request" were synonymous, an instruction that it was a fact proven that the alleged female made the request for the room obtained for her by defendant was on the weight of the evidence. 7. —Same—Accomplice—Charge of Court. Under the law defining pandering, the female who kept the house of prostitution and the female who was induced to go there by the defendant do not come within the rule governing accomplice testimony, and there was no error in the court’s failure to charge thereon. 8.—Same—Allusion to Defendant’s Failure to Testify—Misconduct of Jury. Where, upon appeal from a conviction of pandering, the record showed that the jury in their retirement alluded to defendant’s failure to testify, and said that if defendant had anything good in his past record his lawyer would have shown that fact, etc., the same was reversible error.
72 Tex. Crim. 501Mason v. State (1914)
1. —Murder—Charge of Court—Manslaughter. Where, upon trial of murder, the court’s charge in his definition of murder excluded the fact that if the facts and circumstances reduced the offense to manslaughter, it would not he murder, the same was reversible error, the issue of manslaughter being presented by the evidence. 2. —Same—Provoking Difficulty—Self-defense—Charge of Court. Where the State’s theory made a case of murder, and the defendant claimed self-defense and himself introduced testimony which would show a provocation and renewal of the difficulty, there was no error in the court’s charge in submitting to the jury the question of provoking the difficulty. 3. —Same—Peaceful Mission—Charge of Court—Self-defense. Where, upon trial of murder, the charge of the court on self-defense abridged this right by requiring the jury to find as an affirmative fact that defendant approached deceased with the intention and purpose of adjusting their differences in a peaceable and friendly manner, the same was reversible error. 4. —Same—Abandonment of Difficulty—Burden. Where the court’s charge put the burden on defendant to show that the passion engendered by the encounter continued, before the jury would be authorized to find him guilty of manslaughter, the same was reversible error under the evidence that defendant continued to shoot after deceased abandoned the difficulty.
72 Tex. Crim. 504Jones v. State (1914)
The opinion states the case.
72 Tex. Crim. 516Gatlin v. State (1914)
1. —Theft of Horse—Allusion to Defendant’s Failure to Testify. Where, upon trial of theft of a horse, the State’s counsel examined a witness as to the identity of the horse alleged to have been stolen, and the latter asked whether he could say what defendant told him, whereupon, the district attorney replied in the negative and incidentally said that defendant was here and could tell it himself, the same was not reversible error, although such remarks should not be made. Following Johnson v. State, 53 Texas Crim. Rep., 339, and other cases. 2. —Same—Name of Party Injured—Idem Sonans. Where the indictment alleged that the animal was stolen from James and the proof showed that his name was Janes, but that he was commonly known and called James, there was no variance. Following Lott v. State, 24 Texas Crim. App., 723, and other cases. 3. —Same—Evidence—Expert Testimony. Upon trial of theft of a horse, there was no error in permitting experienced stockmen to testify in regard to the change of the original brand of the animal alleged to have been stolen. [Rehearing denied February 18, 1914.—Reporter.]
72 Tex. Crim. 518Loicano v. State (1914)
1. —Selling Intoxicating Liquors Without License—Information—Surplusage. Where the words objected to in the information describing the character of liquor should be regarded as surplusage, in a prosecution for selling intoxicating liquors without license, the same was sufficient. Following Goodwin v. State, 70 Texas Crim. Rep., 600, 158 S. W. Rep., 274. 2. —Same—Sufficiency of the Evidence. Where, upon trial of selling malt liquors capable of producing intoxication, without license, the evidence sustained the conviction, there was no error. 3. —Same—Evidence—Contradicting Own Witness. Where a State’s witness, to whom the sale of intoxicating liquors was alleged to have been made, testified to a state of facts which would make it doubtful that he had purchased the same, there was no error in permitting State’s counsel to show that said witness had previously stated that he had made said purchase, and requiring said witness to answer that-he did make such purchase. 4. —Same—Compromising Case—Bill of Exceptions. Where the bill of exceptions was not properly verified, and it appeared from the record that the testimony of the assistant county attorney did not show an effort by defendant to compromise the case so as to make the evidence inadmissible, there was no error. 5. —Same—Requested Charge. Where the evidence sustained the conviction, there was no error in refusing a charge to find the defendant not guilty. 6. —Same—License—Liquor Dealer—Locality. The law prohibits the liquor dealer from carrying on his business under his license at more than one place at the same time, and provides that if he desires to change the place designated in the license, he must apply to the county judge and have the change made, and there was no error to refuse a, charge if defendant had any license to sell intoxicating liquors at another place to acquit.
72 Tex. Crim. 521Boyd v. State (1914)
The opinion states the case.
72 Tex. Crim. 526Hall v. State (1914)
The opinion states the case.
72 Tex. Crim. 527Meador v. State (1914)
1. —Malicious Mischief—Injuring Fence of Another—Evidence—Intent. The want of intent is relevant in a prosecution for injuring the fence of another and it is reversible error to exclude testimony showing a want of intent to injure. 2. —Same—Charge of Court—Principal. Where, upon trial of injuring the fence of another, the evidence raised the-issue as to whether defendant participated in the act of taking down the gate-of such fence and if he did anything, assisted the person who did so in carrying: the gate away a few steps and hiding it, the court should have submitted defendant’s requested charge to instruct the jury to acquit defendant if he only-assisted in carrying away the gate after it was taken down by another.
72 Tex. Crim. 529Ex Parte Eldridge (1914)
The opinion states the case.
72 Tex. Crim. 530Ex Parte Iles (1914)
The opinion states the case.
72 Tex. Crim. 531Daly v. State (1914)
1. —Burglary—Bills of Exception. Where the hills of exception were accepted with the indorsement of the trial court’s refusal to approve them and no attempt was made to prove up the bills, they can not be considered on appeal. 2. —Same—Evidence—Refreshing Memory of Witness. Where the witness made a memorandum of the date of the burglary, or at least the time, it was called to his attention as an officer, he could refer thereto as a means of refreshing his memory, and this whether the record was original or not, the same not being used as evidence itself. 3. —Same—Convict—Pardon. Where the bill of exceptions did not show what the testimony of the witness- was, but only disclosed that she had not been pardoned, and did not affirmatively show that she testified at all, the matter can not be revised on appeal, as her evidence is not in the record, if she testified at all. 4. —Same—Record of District Clerk. Where the record of the district clerk could have been produced by proper process, and the record did not disclose on appeal whether the witness had testified, the objection as to her former conviction, etc., could not be considered.
72 Tex. Crim. 533Sims v. State (1914)
Tried below before the Hon. B. H. Cocke. Appeal from a conviction of aggravated assault; penalty, a fine of $200. The opinion states the case.
72 Tex. Crim. 535Humphries v. State (1914)
The opinion states the case.
72 Tex. Crim. 536Walker v. State (1914)
1. —Local Option Law—Publication of Law. Where, upon trial of a violation of the local option law, there was no sufficient evidence showing that the result of the local option election was published according to law, the same was reversible error. 2. —Same—Evidence—Contradicting Witness. Where there was no attempt to impeach the State’s witness, it was error to admit in evidence testimony corroborating such witness by his own statement to a third party. 3. —Same—Result of Election—Ultra Vires. Where the Commissioners Court met on the ninth day after the election for local option and declared the result thereof, their action was ultra vires and void, although this may not have rendered the election void.
72 Tex. Crim. 538Green v. State (1914)
Tried below before the Hon. Jo. A. P. Dickson. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary.
72 Tex. Crim. 539Dickerson v. State (1914)
Local Option—Agency—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, there was evidence that the defendant acted as agent of the purchaser, but also evidence that he did not do so, but made the sale, the conviction was sustained under a proper charge of the court.
72 Tex. Crim. 541Ex Parte Muncy (1913)
From Floyd County. Original habeas corpus proceeding asking release from commitment to jail for contempt, in refusing to testify for the State. The opinion states the case.
72 Tex. Crim. 587Ex Parte Rice (1913)
1.—Pardon.—Governor—Revocation of Pardon—Habeas Corpus. Where the Governor pardoned relator, stating that the condition of the pardon was that relator must conduct himself as a good and law-abiding citizen and not again violate the laws of the State before the expiration of the time for which he was sentenced, and relator accepted said pardon under the conditions therein set forth, the Governor could not revoke said pardon on the ground that further evidence had been presented and upon further consideration it was not thought that the relator deserved clemency at this time. 2.—Same—Rule Stated—Unconditional Pardon—Fraud. When the Governor has issued an unconditional pardon and it is accepted by the prisoner and he is released thereunder, all power and control by the Governor over the prisoner is gone, unless the pardon was obtained by fraud. 3. —Same—Conditional Pardon—Unconditional Pardon. A conditional pardon is as absolute an act upon the conditions named therein as is an unconditional pardon, and it can be revoked only upon a, violation of the condition the Governor has seen proper to insert therein, and where the Governor does not claim in the proclamation of revocation that relator has violated any of the conditions in the pardon, such revocation is null and void. 4. —Same—Conditional Pardon—Case Stated. Where the sole ground alleged in the revocation is that since the, granting of the conditional pardon further evidence has been presented to the Governor, who, upon further consideration, does not deem relator worthy of clemency, and the original pardon was granted upon the condition that relator should not violate the laws of the State, such revocation is null and void. 5. —Same—Power of the Courts—Discretion of Governor. While it is true that the right to grant pardons is conferred on the Governor by the Constitution and is not subject to review, yet this power does not necessarily' carry with it the right to revoke the pardon on a condition not stated therein, and under the Constitution the judicial department under the writ of habeas corpus can discharge the relator. 6. —Same—Revocation—Future Violation of Conditions. If relator should violate the condition at any time which the Governor placed in the pardon, the same may be revoked and annulled, but until he does so he is entitled to his liberty. 7. —Same—Practice on Appeal. Where, in view of the disposition of the 'case, it is unnecessary to decide other questions raised, they will not be passed on. 8. —Same—Rule Stated—Right to Revoke—Conditional Pardon. The right to revoke a conditional pardon does not come from any power conferred on the Governor by the Constitution and laws of the State, but solely by reason of the conditions placed in the pardon. 9. —Same—Rule Stated—Power of Governor to Revoke, When. Neither the Constitution nor the laws of this State invest the Governor with the authority to conduct an investigation and decide whether or not a condition in the pardon has been violated. His power to revoke must arise from the language he uses and the reservations he makes in the conditional pardon, but this question is not raised, and need not be discussed, as the Governor does not claim that the conditions named by him in the pardon were violated by relator. 10. —Same—Case Stated—Conditional Pardon. When the pardon was delivered to and accepted by relator, the conditions became binding on him and the Governor as well, and before the Governor can act, relator must violate the conditions named, or some one of them.
72 Tex. Crim. 602Coulter v. State (1913)
The opinion states the case.
72 Tex. Crim. 611Ross v. State (1914)
The opinion states the case.
72 Tex. Crim. 614Whittlesey v. State (1914)
Tried below before the Hon. J. B. Lewis. Appeal from a conviction of a.violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.
72 Tex. Crim. 616Robinson v. State (1914)
1.—Gaming—Private Residence—Insufficiency of the Evidence. Where, upon trial of gaming, the evidence failed to show that the house where the game was played was a private residence and that people commonly resorted to the same for the purpose of gaming, as alleged, the conviction could not be sustained. 2.—Same—Variance—Banking Game. Where defendant was indicted for betting at a game of cards, etc., and the evidence showed the exhibition of a banking game, the variance was fatal. Following Chancellor v. State, 52 Texas Crim. Rep., 464, and other cases.
72 Tex. Crim. 617Dunnaway v. State (1914)
Simple Assault—Insufficiency of the Evidence. Where, upon trial of assault, the evidence showed that the alleged injured party was the aggressor and that defendant used no more force in repelling the assault than an ordinary man would have done, the conviction was not sustained.
72 Tex. Crim. 618Williamson v. State (1914)
1.—Rape—Sufficiency of the Evidence. Where, upon trial of rape, the evidence was sufficient to sustain the conviction, there was no error. 2.—Same—Jury and Jury Law—Suspension of Sentence. Where the defendant upon trial of rape had not filed his plea asking for a suspension of sentence before the trial began, and after four jurors had been accepted,, filed such plea for the first time and sought to ask the jurors upon their voir dire whether they had any prejudice against the suspended sentence law, to which the court sustained an objection, there was no error. Following Roberts v. State, 70 Texas Crim. Rep., 588, and other cases. 3. —Same—Evidence—Bills of Exception. In the absence of a bill of exceptions, complaints to the introduction and exclusion of testimony can not be considered on appeal; besides, there was no error. 4. —Same—Indeterminate Sentence Law—Penalty. Where no valid indeterminate sentence law was in force at the time of the trial the court’s charge requiring the jury to assess the penalty was correct, even if there had been such law. 5. —Same—Evidence—Other Acts of Carnal Intercourse. Upon trial of rape there was no error in admitting other acts' of carnal intercourse by appellant on a female trader age, the court properly limiting the jury to the consideration of only one specific act. Following Battles v. State, 63 Texas Crim. Rep., 147. 6. —Same—Argument of Counsel—Bill of Exceptions. In the absence of a bill of exceptions to the refusal of a requested charge as to argument of counsel, the same can not be considered on appeal.
72 Tex. Crim. 620Joiner v. State (1914)
The opinion states the case.
72 Tex. Crim. 621Pena v. State (1914)
Appeal from the County Court of Wharton. Tried below before the Hon. J. B. Bowen. Appeal from a conviction of aggravated assault; penalty, a fine of $25.
72 Tex. Crim. 621Sims v. State (1914)
1.—Theft of Horse—Sufficiency of the Evidence. Where, upon trial of theft of a horse, the evidence was sufficient to sustain the conviction, there was no error on that ground. 2.—Same—Evidence—Conversation—Explanation. Where the State attempted to show that the defendant sold the alleged horse at less than its reasonable market value, and introduced a part of the conversation between the defendant and the party who purchased the horse, it was reversible error not to permit the defendant to introduce the entire conversation explaining the reason why he was taking less than the reasonable market value of the horse. 3.—Same—Evidence—Declarations of Third Party. Where, upon trial of theft of a horse, it developed that the party whose declarations about the alleged horse was himself under indictment for the theft of the same animal, and was, therefore, an incompetent witness, his declarations to a third party with reference thereto were hearsay and inadmissible; besides, the same character of testimony had been admitted, and there was no error.
72 Tex. Crim. 621Pena v. State (1914)
72 Tex. Crim. 624Howard v. State (1914)
The opinion states the case.
72 Tex. Crim. 628Lamb-Campbell v. State (1913)
1. —Forgery—Indictment—Receipt—Extrinsic Averment. A receipt from the treasurer of a life insurance company is such an instrument upon which a prosecution for forgery may be based, without extrinsic averments that such company is a corporation or individual or that it had authority to issue such receipt for money paid, and there was no error in overruling a motion in arrest of judgment. 2. —Same—Sufficiency of Indictment—Receipt—Legal Obligation. Where, upon trial of forgery of a receipt of a life insurance- company, the same was set out in the indictment, it was not necessary to show by extrinsic averments how and in what manner it might become possessed of capacity to defraud, out.side of the receipt itself, the same creating a legal obligation on its face. Following Fonville v. State, 17 Texas Crim. App., 368.
72 Tex. Crim. 630Myers v. State (1914)
1.—Aggravated Assault—latent to Alarm—Intent to Injure. Under article 1013, Penal Code, the use of a dangerous weapon or the semblance thereof in an angry and threatening manner with intent to alarm another and under circumstances calculated to effect that object is an assault, and where the evidence showed that the weapon was not only presented with the intent to alarm, but did alarm, it was not necessary to show an intent to injure. 3.—Same—Simple Assault—Deadly Weapon. Under article 1022, Penal Code, ah assault becomes aggravated when committed with a deadly weapon under circumstances not amounting to an intent to murder, and where the evidence sheaved that defendant presented. a gun in a shooting position with intent to alarm, the same constituted an aggravated assault and not a simple assault.
72 Tex. Crim. 632Ex Parte Faihtinger (1914)
The opinion states the case.
72 Tex. Crim. 634Beaty v. State (1913)
1. —Occupation—Selling Intoxicating Liquors—Local Option—Indictment —Negative. An indictment charging the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory need not negative the fact that the alleged sales were permitted by law. Following Slack v. State, 61 Texas Crim. Rep., 372. 2. —Same—Indictment—Pursuing Occupation—Single Sale. Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, the indictment followed approved precedent, a complaint that it charged a single violation of the local option law and failed to allege that the defendant pursued the occupation, etc., was untenable, and the indictment was sufficient. 3. —Same—law in Force—Motion in Arrest of Judgment. Where, upon trial of pursuing the occupation of selling intoxicating, liquors in prohibition territory, the question as to whether the law was in force in the county of the prosecution having been previously settled by the decisions of this court adversely to defendant, there was no error in overruling a motion in arrest of judgment on that ground. Following Fitch v. State, 58 Texas Crim. Rep., 366. 4. —Same—Continuance—Want of Diligence. Where the bill of exceptions showed a total lack of diligence on the part of the defendant to procure the witnesses material to his defense, and a refusal of all assistance by the court and district attorney to secure such witnesses, and that no process had ever been issued for them, there was no reversible error. 5. —Same—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence sustained the conviction, under a proper charge of the court, there was no error. 6. —Same—Bill of Exceptions—Qualification by Court. Where, upon appeal from a conviction of pursuing the occupation of selling intoxicating liquors in local option territory, the qualification by the court of defendant’s bill of exceptions showed that defendant had never applied for process for the absent witnesses for whose absence he asked a continuance, and that the defendant accepted the bill with the court’s qualifications, there was no reversible error.
72 Tex. Crim. 638Hemphill v. State (1913)
The opinion states the case.
72 Tex. Crim. 645Cooper v. State (1914)
The opinion states the case.
72 Tex. Crim. 649Turner v. State (1914)
1. —Rape—Evidence—Confessions—Cross-examination. Where, upon trial of rape, it appeared from the record on appeal that the defendant, on cross-examination of the alleged injured female, deliberately brought out the confessions of guilt of the defendant for the purpose of supporting his contention that the father of the girl was trying to force defendant off his land and make him leave the country, there was no error in permitting the parents of prosecutrix who were present at the time of the alleged confession to testify in regard to what was said and done on that occasion, and that defendant admitted that he committed the rape on their little daughter, he not being under arrest. 2. —Same—Evidence—Flight—Change of Name—Declarations of the Defendant. Upon trial of rape, there was no error in admitting in evidence the flight of the defendant, and the fact that he went under an assumed name and his declarations with reference thereto when he was not under arrest. Following Elsworth v. State, 54 Texas Crim. Rep., 38, and other cases. 3. —Same—Evidence—General Reputation. Where defendant interposed the plea for a suspension of sentence and introduced evidence of his general reputation, there was no error in permitting the State to inquire into his habits and mode of life. 4. —Same—Force—Charge of Court. Where, upon trial of rape upon a female under the age of consent, the court refused a requested charge to acquit defendant unless he used force, there was no error. 5. —Same—Rule Stated—Force—Non-age of Female. Carnal knowledge of a female under the age 'of consent and not the wife of the person having carnal knowledge of her is rape, no matter what the circumstances, and the question of consent, force, threats or fraud is wholly immaterial. Following Whitehead v. State, 61 Texas Crim. Rep., 558, and other cases. 6. —Same—Unnecessary Allegations—Surplusage. In a prosecution for rape upon a female under the age of consent, allegations that defendant did ravish or used force, threats, or fraud may be rejected as surplusage. Following Vaughn v. State, 62 Texas Crim. Rep., 24, and other cases. 7. —Same—Reasonable Doubt—Charge of Court. Where, upon trial of rape, the court applied the rules of reasonable doubt between the different degrees of the offense, and gave the usual and customary charge on presumption of innocence, there was no error on that ground. 8. —Same—Evidence—Declarations of Defendant—Duress. Where defendant himself injected the issue that the father of the injured girl whipped him in order to run him- out of the country, and brought out his declarations of his admission of the crime, and requested no charge that defendant made these statements under duress, etc., there was no error", although the parents of the injured child were allowed to state their version of this transaction.
72 Tex. Crim. 654Matthews v. State (1914)
The opinion states the case.
72 Tex. Crim. 658Armstrong v. State (1914)
Local Option—Statement of Facts—Bills of Exception. Where the statement of facts and bills of exception were not filed within ninety days, as required by the statute, and no showing was made why this was not done, the same can not be considered on appeal. [Rehearing denied March 11, 1914.—Reporter.]
72 Tex. Crim. 659Thompson v. State (1914)
1. —Murder—Requested Charge—Circumstantial Evidence. Where, upon trial of murder, the testimony showed that the defendant admitted to many witnesses that he struck the blows that killed deceased, there was no error in refusing a special charge on circumstantial evidence. 2. —Same—Sufficiency of the Evidence. Where, upon a conviction of murder assessing the death penalty, the record on appeal showed that the evidence sustained the conviction, there was no error on that ground. 3. —Same—Insulting Conduct to Female Relative—Charge of Court. Where, upon trial of murder, the defense introduced in evidence insulting words and conduct of deceased towards defendant’s sister, and the court instructed the jury in the language of the statute that this was adequate cause, etc., there was no error on that ground. 4. —Same—Manslaughter—Charge of Court—Insulting Conduct to Female Relative. Where the court’s charge on manslaughter was in strict accordance with articles 1132 and 1133, Penal Code, there was no error on that ground. 5. —Same—Reasonable Doubt—Charge of Court. Where the court’s charge on reasonable doubt was in accord with the statutory provision in that respect, there was no reversible error. 6. —Same—Jury and Jury Law—Challenge for Cause. Where, upon appeal from a conviction of murder, the record showed that the jurors objected to were qualified, and it was not shown that they served on the jury in the trial of the defendant, or that defendant was forced to accept any objectionable juror, there was no error. 7. —Same—Evidence—Tracks. Where, upon trial of murder, it was shown by the evidence, that defendant was at a certain place on the night of the homicide and admitted that he had had a fight with the deceased, etc., there was no error in admitting testimony of tracks found leading from the place where deceased was found to the place or in the direction of the place where defendant made these declarations. 8. —Same—Evidence. Where the admission of the testimony of a certain witness was correct there was no error on this ground. 9. —Same—Evidence—Contradicting Witness. Where a certain witness testifying to material facts for the State claimed that she was forced and coerced into making certain statements to the county attorney, there was no error in permitting him to testify that said witness was not in any manner coerced in making such statements. 10. —Same—Argument of Counsel. Where the argument of State’s counsel criticising a certain witness could not have injuriously affected defendant’s case and no special instruction was requested, and the court orally instructed the jury not to consider same, there was no reversible error. 11. —Same—Evidence—Bills of Exception. In the absence of bills of exception to the admission of testimony, complaints in the motion for new trial on this ground can not be considered on appeal. [Rehearing denied March 4, 1914.—Reporter.]
72 Tex. Crim. 665Sherley v. State (1914)
1. —Local Option—Evidence—Bias of Witness. Upon trial of a violation of the local option law it was reversible error not to permit defendant to show the ill-feeling, motive and bias of the prosecuting witness against the defendant. Following Earles v. State, 64 Texas Crim. Rep., 537, and other cases. 2. —Same—Evidence—-Bill of Exceptions. Where the bill of exceptions failed to show that the prosecuting witness had any reason to believe that the defendant was going to prosecute him or would be a witness against him in a certain matter, there was no reversible error, as the question of bias and ill-feeling of the witness, which could have been shown, was not properly connected up.