73 Tex. Crim.

Volume 73 — Texas Criminal Reports

159 opinions

73 Tex. Crim. 1Pittcock v. State (1914)
The opinion states the case.
73 Tex. Crim. 5Law v. State (1914)
The opinion states the case.
73 Tex. Crim. 9Robey v. State (1913)
The opinion states the case.
73 Tex. Crim. 15Archer v. State (1914)
The opinion states the case.
73 Tex. Crim. 16Lewis v. State (1914)
1. —Local Option—Information—Date of Election. See opinion suggesting that it would save much trouble and the raising ■of many questions if the indictment or information would charge the day, month, and year on which the local option election was held. 2. —Same—Statement of Facts—Law in Force. The statement of facts can not be added to or changed as the certificate of the trial judge is conclusive, and where it did not appear therefrom that local ■option was in effect and in force in the county of the prosecution, the cause must be reversed. 3. —Same—Name of Purchaser. To avoid trouble and complications, the name of the purchaser, of intoxicating liquors should be properly alleged. 4. —Same—Agency—Charge of Court. Where, upon trial of a violation of the local option law, the question of agency was raised by the evidence, the court should have submitted the came as requested.
73 Tex. Crim. 17Hiles v. State (1914)
1. —Murder—Manslaughter—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no error on that ground. 2. —Same—Continuance—Bill of Exceptions. Where the bill of exceptions to the court’s refusal to grant a continuance, as accepted by the defendant, did not show any error in overruling the application, there was no error. 11 3. —Same—Evidence—Threats of Defendant. Upon trial of murder there was no error in admitting in evidence a conversation between defendant and the witness which occurred some time prior to the homicide, in which defendant made some statement about what he would do with reference to killing a man under circumstances and conditions under which the killing occurred; besides, the bill of exceptions was defective. Following Conger v. State, 63 Texas Grim. Rep., 312, and other cases. 4. —Same—Rule Stated—Threats. While the general rule is that the threat must be shown to have been made against the party in question, yet where the same is general and embraces all persons, it is admissible in evidence. Following Holley v. State, 39 Texas Grim. Rep., 301, and other cases. 5. —Same—Evidence—Bill of Exceptions. Where defendant emphatically denied that he had used the language about which the witness was asked, there was no error in the court’s refusal to permit said witness to explain such language; besides, the bill of exceptions was defective. 6. —Same—Evidence—Arrest—Statement by the Defendant. Where, upon trial of murder, the record showed on appeal, that the defendant, when he made the declarations that the deceased was not armed at the time of the killing, did riot consider himself under arrest and in fact was not under arrest, the same was admissible in evidence. Following Craig v. State, 30 Texas Grim. App., 619, and other cases. 7. —Same—Contradicting Witness—Charge of Court—Limiting Testimony. Where, upon trial of murder, one of defendant’s witnesses denied that he signed a certain written statement to which he swore before an officer, with reference to certain declarations by defendant and threats against the deceased, and the State was permitted to show by witnesses that said defendant’s witness did make such written and sworn statement, the court should have properly limited this testimony to the credibility of said witness, and a failure to do so was reversible error. Prendergast, Presiding Judge, dissenting. 8. —Same—Evidence—Map. Where, upon trial of murder, the court permitted a State’s witness to make a map or plat of the ground to illustrate the position of the parties, etc., at the time of the homicide, hut later withdrew said map and the testimony in connection therewith from the jury and orally instructed them not to consider it, defendant’s complaint that the court should have done so in writing, in the absence of a requested charge shows no error.
73 Tex. Crim. 28Graham v. State (1914)
The opinion states the case.
73 Tex. Crim. 35Lassiter v. State (1914)
1. —Aggravated Assault—Charge of Court—Execution—Trespasser. Where, upon trial of aggravated assault, the evidence showed that the injured party, who was acting as constable under a writ of execution which was void and did not give him the right to enter upon defendant’s premises,, and besides, threatened to injure the defendant and to forcibly take his property,, the defendant was justified in using all necessary means to prevent the intrusion of said party upon his property as well as in defense of himself, and where the court’s charge did not apply the law to the facts and the defendant’s-charge set forth the correct rule which the court refused to submit, the same was reversible error. 2. —Same—Invalidity of Execution—Trespasser—Charge of Court. Where the injured party under the evidence occupied the position of a trespasses on defendant’s premises and the writ of "execution under which he acted did not justify him in anything that he did at defendant’s home, the court should have instructed the jury not only that said writ was void, but that the injured party was a trespasser. 3. —Same—Charge of Court—Question of Good Eaith. It was immaterial so far as defendant’s rights are concerned what the constable thought as to the validity of said writ of execution, because the facts showed that the writ was void, and the court should have so instructed the jury. 4. —Same—Defense of Property—Charge of Court. Where the alleged injured party was acting under a void writ of execution in entering defendant’s premises to seize and levy upon defendant’s property, the latter had the right to arm himself to resist such illegal entry and to defend his home to the extent of using such arms, and the court should have so instructed the jury as requested.
73 Tex. Crim. 41Ulloa v. State (1914)
1.—Carrying Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence, although conflicting, was sufficient to sustain a conviction, there was no error. 8.—Same—Charge of Court—Punishment—Repetition. Where, upon trial of unlawfully carrying a pistol, the court, in defining the offense, told the jury what the penalty was and agajn called the jury’s attention thereto in other portions of his charge, there was no error.
73 Tex. Crim. 42Aldama v. State (1914)
The opinion states the case.
73 Tex. Crim. 44Lewis v. State (1914)
Misdemeanor Theft—Possession—Ownership. Where, upon trial of misdemeanor theft, the evidence as to ownership and possession showed the general possession in one party and special ownership in another, and raised a reasonable doubt under the allegations of the information as to such possession and ownership, the cause is reversed and remanded with suggestion to file a new information.
73 Tex. Crim. 45McCraw v. State (1914)
1.—Aggravated Assault—Former Conviction—Distinct Offenses. Where, upon trial of an aggravated assault, the defendant pleaded former conviction as a bar to the prosecution, and the evidence showed that the defendant voluntarily pleaded guilty in the Justice Court to an affray, the court submitting his plea, and the jury convicted defendant of aggravated assault, such charge of the court, although erroneous, was harmless error of which defendant could not complain, although the two offenses are strictly separate and distinct. 2. —Same—Buie Stated—Affray—Carving—Former Jeopardy. In no event was the conviction for an affray on complaint any bar to the conviction of an aggravated assault and battery under the indictment, neither did the doctrine of carving apply. Following Davis v. State, 39 Texas Grim. Rep., 681. 3. —Same—Verdict, Certainty of. Where defendant was indicted for an aggravated assault, and interposed a plea of former conviction for an affray, and the jury found defendant guilty as charged in the indictment and assessed his punishment at a fine of $25, the verdict was sufficiently certain to find defendant guilty of an aggravated assault. Following McGee v. State, 39 Texas Grim. Rep., 190, and other cases.
73 Tex. Crim. 48Buster v. State (1914)
The opinion states the case.
73 Tex. Crim. 49Davis v. State (1914)
1.—Murder—Evidence—General Reputation—Bill of Exceptions. Where, in support of defendant’s contention that deceased had been guilty of insulting conduct towards defendant’s wife he had introduced testimony of the general bad reputation of deceased for lewdness, and the State, in rebuttal thereto, had introduced testimony that the general reputation of deceased was good, it was harmless error not to permit defendant, on cross-examination, to ask the witness if it was not common current report that deceased was keeping lewd women, the court instructing the jury that if defendant was informed that the insulting conduct had taken place it would make no difference whether deceased was in fact guilty thereof; besides, the bill of exceptions was defective. 2. —Same—Adequate Cause—Insulting Conduct Towards Female Relative. Where, upon trial of murder, there was evidence of insulting conduct by deceased towards defendant’s wife, and the court instructed the jury that if defendant was informed of such conduct, etc., that the same would constitute adequate cause and reduce the offense to manslaughter, and- simply left the question as to whether or not this produced such anger, etc., in the mind of the defendant as to render it incapable of cool reflection, the contention that the question as to whether insulting conduct would be adequate cause was left to the jury is untenable, and there was no error. 3. —Same—Evidence—Motive—Ill-will—Witness. While it is always permissible to show the state of feelings of a witness towards the parties, yet, where the bill of exceptions only recited that defendant expected to prove that the father of the defendant did not patronize a certain gin that the deceased patronized, and did not show what the witness would have testified, there was no error in sustaining an objection to said question; besides, defendant’s testimony itself and that of his witnesses showed no such state of facts existed. 4. —Same—Evidence—Self-serving Declarations. Where defendant was permitted to testify his reasons why he intended to move off the place of deceased, there was no error in excluding a self-serving declaration that he had told others this was his reason, subsequent to the time that the defendant was shown to have made the remark that deceased accused him of whipping his, defendant’s, wife, and that he would have to prove it or eat his words. 5. —Same—Exculpatory Statement—Charge of Court. Where, upon trial of murder, defendant testified as to the conduct of deceased at the time of the killing, but denied making any statement to the State’s witness how the difficulty occurred, the fact that this witness testified that defendant had stated among other things that deceased had his gun and had one barrel cocked, and the contention that the court should have submitted defendant’s special charges presenting the issue of exculpatory statements by defendant was untenable; the court having fully and fairly submitted the issue of self-defense as made by defendant’s own testimony. 6. —Samé—Indeterminate Sentence Law—Punishment. Under the indeterminate sentence law, the court correctly required the jury to assess the punishment, and the contention that the jury has no ppwer to do so because it had not assessed the death penalty in a murder trial is untenable. 7. —Same—indeterminate Sentence Law—Reforming Judgment and Sentence. Where, upon trial of murder, the indeterminate sentence law passed at the called session of the Thirty-third Legislature was effective at the time of the trial, defendant was entitled to the benefit of the same, and the trial court erred in' not passing sentence thereunder, but it is not such error as calls for a reversal of the case, as under article 938, Code Criminal Procedure, it is the duty of this court to reform and correct the judgment according to the verdict of the jury so as to comport with said indeterminate sentence law, which is accordingly done. 8. —Same—Charge of Court—Filing Objections—Article 743. Where appellant in his motion for rehearing complained of certain paragraphs of the charge of the court to which he filed no objections at the time of the trial, the same can not be considered on appeal under article 743, Code Criminal Procedure, as amended; besides, there was no reversible error if such objections were considered. 9. —Same—Harmless Error—General Reputation. While it was permissible, on the question of general reputation of deceased as a chaste and virtuous man, to test the knowledge and credibility of the witness who had testified that such reputation was good, yet, where defendant relied on insulting conduct to his wife by the deceased, and the court correctly-submitted that issue, it was harmless error in not permitting defendant to propound the question to said witness if it was not a matter of common current report that deceased was keeping other women.
73 Tex. Crim. 58Hays v. State (1914)
1. —Murder—Continuance—Insult to Female Relative. Where defendant, in his first application for continuance for the absence of his wife, who was physically unable to attend the trial, showed that he could prove by her that she had communicated to him what the daughter had said with reference to the insulting conduct by deceased towards her, the continuance should have been granted, although the daughter had testified that she communicated to her mother such insulting conduct by the deceased, etc. 2. —Same—Evidence—Written Statements—Confronting Witnesses. Upon trial of murder and a conviction of manslaughter, it was error to admit in evidence the written statements of certain witnesses as to their acts and conduct towards the deceased while they were in his employment with defendant, as defendant was entitled to be confronted by these witnesses. 3.—Same—Evidence—Declarations of Deceased—Limiting Testimony. Upon trial of murder and a conviction of manslaughter, it was error to admit in evidence the declarations of the deceased to his wife with reference to his financial affairs, etc., to lay tne predicate of impending death, without limiting the same to such purpose, the same not being a part of the dying declarations. [Rehearing denied March 18, 1914.—Reporter.]
73 Tex. Crim. 61Forrester v. State (1913)
1. —Assault to Murder—Sufficiency of the Evidence. Where, upon conviction of. assault to murder, the evidence was sufficient to sustain the same, there was no error. 2. —Same—Jury and Jury Law—Sheriff—Challenge to Array. ■ Where, upon trial of assault to murder, the defendant moved that all the jurors who had been selected by the jury commissioner be summoned before passing on the jury, and the record showed that while the sheriff was the assaulted party he had no special interest in the ease; that the absent jurors had been excused by the court for legal cause or exemption; that the talesmen were in fact summoned by the deputy sheriffs who were not shown to have acted corruptly or tried to influence the jurors, and there was no proof in support of said motion, there was no error in overruling the..same as well as a motion challenging the array of jurors. 3. —Same—Evidence—Res Gestae. Upon trial of assault to murder, there was no error in permitting the physician who dressed the wounds of the party injured that he immediately reached him after the shooting and that he found him conscious, and though pale from the loss of blood, calm, and not specially excited at the time. 4. —Same—Evidence—Gun Shells. Upon trial of assault to murder, there was no error in admitting in evidence testimony that the next morning after the shooting a steel bullet was found at the place where the shooting occurred, and also some empty automatic pistol shells. 5. —Same—Evidence—Conversation Over Telephone. Where, upon trial of assault to murder, it. developed that the defendant shortly before the shooting used the' telephone ordering a conveyance, etc., in which she afterwards drove to the place of the shooting, there was no error in admitting testimony that the telephone operator heard the conversation and knew her voice. 6. —Same—Cumulative Sentence. Where defendant was convicted of assault to murder, and it was shown to the court that a prior judgment of conviction for felony was had against her in another county and the court, thereupon, made her sentence begin after the sentence in the other case had expired, in conformity with article 862, Code Criminal Procedure, there was no error. 7. —Same—Misconduct of Jury—Statement of Facts. Where the statement of facts concerning the misconduct of the jury was not filed during the term of the trial court, and was in question and answer form besides, the same can not be considered on appeal, and it must be presumed that the court correctly overruled a motion on that ground. Following Probest v. State, 60 Texas Grim. Rep., 608, and other cases. [Behearing denied February 11, 1914.—Beporter.]
73 Tex. Crim. 67Morris v. State (1914)
1. —Carrying Pistol—Conclusions of Fact and Daw. The conclusion of fact and law of the trial judge are not authorized to be filed in criminal cases, but will, nevertheless, be considered in this case. 2. —Same—Insufficiency of Evidence—Want of Criminal Intent. Where defendant claimed that he carried the pistol from the place where it had been repaired to his home, a slight deviation in retracing his steps to make a purchase when the pistol was accidentally discharged would not constitute the offense of unlawfully carrying a pistol.
73 Tex. Crim. 68Cobb v. State (1914)
1. —local Option—Indictment—Date of the Offense—Jurisdiction—Misdemeanor. Where the indictment alleged that the election on local option was held prior to July 1, 1909, the offense was a misdemeanor and the County Court had jurisdiction, and in the absence of any showing that there had been a subsequent election by which this election was nullified, the same was still in force and the indictment was sufficient. 2. —Same—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence was sufficient, although conflicting, to sustain the conviction, there was no error.
73 Tex. Crim. 70Ybarra v. State (1914)
1. —Murder—Sufficiency of the Evidence—Murder in First Degree. Where, upon trial of murder assessing the death penalty, the evidence sustained the conviction, there was no reversible error on that ground. 2. —Same—Change of Venue.' Where the affidavits of several persons contesting the motion to change venue showed that defendant was not entitled to a change of venue, there was no error on that ground. 3. —Same—Indictment—Discrimination. Where, upon trial of murder, the evidence showed that no race discrimination was made in selecting the grand jurors who found the indictment, there was no error in overruling a motion to quash on that ground. 4. —Same—Grand Jury—Talesman. Where appellant complained that the sheriff was not sworn before he summoned a talesman to act on the grand jury, and the record showed that no complaint whatever was made of this at the time the grand jury was empanelled, the complaint came too late to be reviewed, and there was no reversible error. 5. —Same—Jury and Jury Law—Practice on Appeal. Where defendant complained of the refusal of the court to permit him to further examine one of the jurors on his voir dire, etc., and the cause is reversed on other grounds, this question need not be considered. 6. —Same—Degrees of Murder—Old and New Law. Where the killing occurred on June 7, 1913, and defendant elected to be tried under the old law defining murder in the first and second degree and properly reserved his exceptions throughout the trial, and the court tried him under the new murder law, which went into effect July 1, 1913, and failed to ■ charge on the different degrees of murder, the same was reversible error. 7. —Same—Buie Stated—Statutes Construed—Punishment. Where the alleged murder was committed before the new statute went into effect, the defendant must be tried under the old law unless he expressly himself elects to be tried under the new law; the new law ameliorating the penalty as to murder in the first degree, the punishment fixed by the new law must be given in the charge to the jury. Following Hill v. State, 72 Texas Grim. Rep., 109, 161 S. W. Rep., 118, and other cases. 8. —Same—Procedure—Statutes Construed. What is said about being tried under the old law is meant as to the offense itself and the punishment therefor, and does not apply to the procedure under the amended articles of the Code of Criminal Procedure by the Act of April 15, 1913. Following Barnett v. State, 42 Texas Grim. Rep., 302, and other cases.
73 Tex. Crim. 72Manning v. State (1914)
The opinion states the case.
73 Tex. Crim. 75Murphy v. State (1914)
Local Option—Information—Complaint—Name of Affiant. Where, upon trial of a violation of the local option law, the information was based upon a sufficient complaint, and the only objection to the information was that the complainant’s name was not inserted in the information until the trial had begun and the county attorney filled the same out without the consent of the court, the information was, nevertheless, .sufficient as affiant’s name in the body of the information was entirely unessential. Following Maíz v. State, 36 Texas Grim. Rep., 447, and other cases.
73 Tex. Crim. 77Lamont v. State (1914)
1. —Gaming—Trial of Case—Practice on. Appeal. Where defendant in his motion for new trial complained that after the State and he had announced ready for trial, the testimony had been introduced and the argument closed, the court suspended the trial and went into the trial •of a companion case, etc., but this matter was not properly verified in the record, the same can not be considered on appeal. 2. —Same—Statement of Facts. In the absence of a statement of facts, questions relating thereto can not be considered on appeal.
73 Tex. Crim. 78Clay v. State (1914)
The opinion states the case.
73 Tex. Crim. 79Terry v. State (1914)
The opinion states the case.
73 Tex. Crim. 80Dawson v. State (1914)
The opinion states the case.
73 Tex. Crim. 82Link v. State (1914)
1. —Abortion—Indictment—Precedent. Where, upon trial of abortion, the indictment followed approved precedent, the same was sufficient on motion to quash. 2. —Same—Unknown Instrument—Charge of Court. Where the indictment, in a prosecution for abortion, alleged the same to have been produced by an instrument the character and description of which was unknown to the grand jurors, and the evidence showed that if an abortion was brought about, it was done by an instrument, the name, character and description of which was unknown at the date of the trial, there was no error in refusing a charge to acquit on this ground. 3. —Same—Evidence—Rebuttal—Bills of Exception.- Where, upon trial of ■ abortion, the defendant contested the fact that the female in question was pregnant, and further contended that if pregnant, the foetus was dead at the time she was operated upon by defendant, there was no error in admitting testimony that said female had intercourse with her stepfather, and was pregnant at the time; besides, the bills of exception did not give the testimony admitted or point out the error as required. 4. —Same—Evidence—Rule Stated—Bill of Exceptions. Where the bill of exceptions included a number of statements, some of which were clearly admissible in evidence, the same was too general for consideration; besides, there was no reversible error. 5. —Same—Evidence—Contradicting Witness. Where the mother of the female, upon whom an abortion was alleged, testified for the defendant and denied going to certain physicians and seeking their services in the performance of an abortion on her said daughter, there was no error in permitting said physician to testify that she did do so. 6. —Same—Evidence—Rebuttal—Contradicting Witness. Where the mother of the prosecutrix, in a trial of abortion, had testified for defendant that her daughter was not pregnant, and if so, that the foetus was dead, etc., there was no error in permitting the State to show that said mother knew that her daughter was pregnant; that the foetus was not dead; and that she asked defendant to perform an abortion upon her, the court properly limiting said testimony. Following Campos v. State, 50 Texas Grim. Rep., 289, and other cases. 7. —Same—Evidence—Motive—Bias of Witness. Where the mother of the prosecutrix, in a case of abortion upon her daughter, testified for the defendant, there was no error in admitting testimony that the witness’ husband had been arrested as an accomplice for the same offense, to show her bias and interest in the case and the motives which operated upon the mind of the witness. Following Gelber v. State, 56 Texas Grim. Rep., 460. 8. —Same — Evidence — Rule Stated — Cross-examination — Husband and Wife. Where the party on trial introduces the wife of one of the defendants as a witness and she testifies to facts material to the defense, she may be cross-examined as to all matters germane and pertinent to her direct examination. Following Dobbs v. State, 54 Texas Grim. Rep., 550, and other cases. 9. —Same—Evidence—Rebuttal. Where, upon trial of abortion, a witness testified in behalf of the defendant that he knew the prosecutrix, etc., and observed nothing to lead him to believe she was pregnant, there was no error in permitting the State to show that there was nothing to attract the attention of the witness by reason of which he would make a critical observation. 10. —Same—Evidence—Remarks by Judge. Where defendant’s counsel, who was cross-examining a State’s witness, interrupted the witness before he had finished his answer, there was no error in the court’s remark to counsel to let the witness answer the question propounded before butting in on him. 11. —Same—Declarations and Acts of Third Parties—Other Offenses. Where it was not shown that the State’s witness was in any way connected with her father in the commission of another offense, or that she shared the ill-will of her husband towards a codefendant, her husband not being a witness in the case, there was no error in rejecting testimony of this character. 18.—Same—Charge of Court—Punishment. Upon trial of abortion, it was proper for the court to submit to the jury the question of the punishment to be assessed in the event the jury found defendant guilty. 13.—Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Where, upon trial of abortion, prosecuting counsel stated the names of the witnesses who had testified and said that these were all the witnesses who did testify in the case, and then turned to the county attorney and asked whether anyone else testified for the defendant, who answered in the negative, the same was not an indirect reference to defendant’s failure to testify; the remarks not relating to some circumstance or statement about which the defendant alone could be expected to testify. Following "Vickers v. State, 70 Texas Grim. Bep., 558, and other cases. 14. —Same—Argument of Counsel. Where the court instructed the jury not to consider certain remarks of State’s counsel, and they were not of such nature as to influence the jury in the face of such instructions, there was no error. 15. —Same—Requested Charge—Defensive Theory. Where, upon trial of abortion, the court charged the jury that if they believed from the evidence that the foetus or embryo, if any, was dead from any cause whatever, before prosecutrix was operated upon by defendant, or that defendant’s purpose was to save her life, to acquit the defendant, there was no error in refusing special instructions on this issue. 16. —Same—Charge of Court—Definition of Assault. Where, upon trial of abortion, the court’s charge submitted the issues to the jury and required them what they should find beyond a reasonable doubt before they could convict defendant, there was no error in the court’s failure to define the meaning of the word “assault.” 17. —Same—Objections to Charge—Changes Made by Court. It was proper for the court to submit his charge to the attorneys, and after they had filed their exceptions thereto to make such changes as he thought advisable and proper to meet the objections made thereto, and the only matters this court can consider are the objections to the charge of the court as finally read to the jury. 18. —Same—Sufficiency of the Evidence—Charge of Court. Where, upon trial of abortion, the evidence for the State was properly admitted under a proper charge of the court, and the same was sufficient to sustain the conviction, there was no error. [Rehearing denied March 11, 1914.—Reporter.]
73 Tex. Crim. 99Walker v. State (1914)
The opinion states the case.
73 Tex. Crim. 101Smith v. State (1914)
Theft of Cattle—Sufficiency of the Evidence—Voluntary Return—Mistake. Where, upon trial of theft of cattle, defendant claimed that he voluntarily returned the alleged stolen animal; that he took same by mistake, etc., all of which was submitted by a proper charge to the jury, and the evidence was sufficient to sustain the conviction, there was no error.
73 Tex. Crim. 101Buckingham v. State (1914)
Appeal from the County Court of Gregg. Tried below before the Hon. J. H. McHaney. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the county jail. The opinion states the case.
73 Tex. Crim. 102Franklin v. State (1914)
Tried below before the Hon. C. M. Ellis. 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. Following is the statement of facts in full: Anthony Bradley, being sworn testified as follows: My name is Anthony Bradley. I live at Weldon, Houston County, Texas, and I know Ben Franklin. He also lives near Weldon.
73 Tex. Crim. 107Hoskins v. State (1913)
The opinion states the case.
73 Tex. Crim. 109Lord v. State (1914)
1.—Arson—Evidence—Bill of Exceptions—Motion for New Trial. In the absence of a bill of exceptions to the admission of testimony, an exception to the overruling of the motion for new trial on this ground does not present the matter for review. 3.—Same—Statement of Facts—Bills of Exception. The law which authorized the filing of statement of facts and bills of exception after term time, and the granting of additional time provides that if the term of court may continue more than eight weeks, these papers must be filed within thirty days after final judgment, unless further time is granted, and the court is not authorized to grant time which will delay the filing of the transcript in this court within the time prescribed by law. S.—Same—Transcript—Filing—Ninety Days. The law ’ requires the transcript in civil cases to be filed within ninety days, and the Code of Criminal Procedure provides that transcripts shall be filed in this court within the time prescribed in civil cases. 4. —Same—Filing Transcript—Practice on Appeal. While the law in criminal cases does not make it the duty of attorneys to file the transcript in this court, but devolves that duty upon the clerk, yet they must perfect the record in the trial court within the time fixed by law, and the same will be considered in this court regardless of the time in which the transcript may be filed, otherwise, unless' good cause bo shown why the record was not perfected below, the statement of facts and bills of exception will not be considered. 5. —Same—Extension of Time—Ninety Days. Where neither the bills of exception nor the statement of facts were filed within ninety days from the entry of the final judgment, the term lasting more than eight weeks, they could not be considered, although the trial court may have granted an extension of time. [Rehearing denied April 1, 1914.—Reporter.]
73 Tex. Crim. 112McGowen v. State (1914)
1. —Murder—Evidence—Motive—Charge of Court—Self-defense. Upon trial of murder, there was . no error in admitting testimony that the brother of the defendant was charged with the murder of the half brother of the deceased, for the purpose of showing motive, etc., the record showing that the difficulty grew out of such former killing; besides, such testimony was withdrawn from the jury, and the court submitted a proper charge on the defendant’s theory of self-defense. 2. —Same—Argument of Counsel—Criticizing Court—Bill of Exceptions. . In the absence of a proper bill of exceptions, the complaint that the district attorney, in his closing address, made disparaging remarks in regard to a member of this court can not be considered; besides, they could not have affected the trial of the case; however,' if such remarks were made, they were highly improper. 1 3. —Same—Bill of Exceptions—Motion for New Trial. • In the absence of a bill of exceptions, matters complained of in the motion for new trial can not be reviewed on appeal. 4. —Same—Newly Discovered Evidence. Where the alleged newly discovered testimony did not come within the rule prescribed for the granting of new trials on account thereof, there was no reversible error. 5. —Same—Buie Stated—What Must Be Shown. The alleged newly discovered evidence must be shown to have come to defendant’s knowledge since the trial, and that it was not owing to a want of diligence that it was not discovered before; that'it was material, and not merely cumulative, corroborative or collateral, or of an impeaching character; and that it will probably produce a different result. 6. —Same—Charge of Court—Self-defense. Where, upon trial of murder, the defendant pleaded self-defense and the court submitted a charge' on the law of self-defense as applicable to the facts in evidence,' there was no reversible error on that ground. 7. —-Same—Charge of Court—Manslaughter—Murder in Second Degree. Where, upon trial of murder, the evidence did not raise the issue of manslaughter, and the court submitted a charge on murder in the second degree, of which offense the defendant was found guilty, there was no error. [Rehearing denied March 35, 1914.—Reporter.]
73 Tex. Crim. 121Mooney v. State (1914)
1. —Receiving and Concealing Stolen Cattle—Statement of Facts. The duty is placed on the party appealing to reduce the statement of facts to a narrative form without unnecessary repetition, and this court can no longer sanction the filing of a statement of facts in question and answer form, and the same must be stricken out on motion of the State. Following Felder v. State, 59 Texas. Crim. Rep., 144. 2. —Same—Change of Venue—Bill of Exceptions. Where the bill of exceptions relating to the action of the court in overruling appellant’s motion for a change of venue was filed nearly three months after the adjournment of the court for the term, the same can not be considered on appeal. Following Bink v. State, 50 Texas Grim. Rep., 445, and other cases. 3. —Same—Evidence—Ownership—Brand. Where, upon trial of receiving, etc., stolen cattle, the cattle were identified, not only by the brand, but independently thereof, the contention that the best evidence was the record of the brand was untenable. 4. —Same—Evidence—Defendant as a Witness. Upon trial of receiving stolen property, there was no error in permitting a State’s witness to testify that he heard the defendant testify in another court and another case that he knew the cattle in question and that they were the property of the alleged owners, and the contention that the stenographer’s report of said testimony was the best evidence and that otherwise defendant was compelled to testify against himself was untenable. 5. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions complaining of the action of the court in admitting a certain subpoena in evidence was so qualified by the court that no objection was raised thereto there was no error. 6. —Same—Indictment—Knowledge of Defendant. Where the indictment for receiving and concealing stolen cattle concluded “knowing the same to have been so acquired,” a contention that the indictment did not allege that the defendant knew the cattle were stolen at the time he received them was untenable. 7.—Same—Venue—Charge of Court. Where the indictment alleged that the cattle were stolen in the county of the prosecution and received and concealed therein by defendant, and the court’s charge authorized the conviction of defendant for receiving and concealing the same in another county, the same was reversible error, as the defendant was convicted upon a state of facts which were not admissible in evidence under this indictment.
73 Tex. Crim. 125McDonald v. State (1914)
1. —Slandering Female—Allegation and Proof—Variance. Where, upon trial of slandering a female, there was a material variance between the allegation and the proof, and it may be seriously doubted if a part of the alleged slanderous language is sufficient to charge an offense, the judgment must be reversed and the cause remanded. Following Simer v. State, 62 Texas Grim. Rep., 514. 2. —Same—Confidential Communications. Where, upon trial of slandering a female, part of the communication between defendant and the husband of prosecutrix was a confidential communication, the same could not be made the basis of such prosecution. 3. —Same—Language Must Be False and Malicious—Evidence. In a prosecution for slandering a female, it is necessary to show that the language imputing a want of chastity to a female was falsely and maliciously or falsely and wantonly made by the accused without justification, etc., and it Was, therefore, error not to permit defendant to show that prosecutrix had told her husband that she had had sexual intercourse with other men prior to the alleged slanderous words by defendant. 4. —Same—Evidence—Ill-will—Malice. Upon trial of slandering a female, there was no error in admitting testimony concerning declarations of defendant, soon after the alleged slanderous language was used by him, showing his ill-will towards her and his alleged malicious statements. 5. —Same—Charge of Court—Singling Out Testimony—Weight of Testimony. Upon trial of slandering a female, it was error to charge the jury that the statement of a small number of persons as to reputation was insufficient to make a general reputation; especially if the small number testifying were influenced by the same persons or moved in the same business or social circles. 6. —Same—General Reputation—Reasonable Doubt. Upon trial of slandering a female, it is not necessary under the law that defendant should establish beyond a reasonable doubt that the reputation of the female .for chastity is bad; but it is sufficient if the jury believe from the evidence that her reputation is -bad. Neither is it essential that the defendant shall establish the truth of the alleged slanderous statements, hut merely that if the jury believe the i truth of it, it is sufficient.
73 Tex. Crim. 129Smith v. State (1914)
1. —Pandering—Sufficiency of the Evidence. Where, upon trial of pandering, the evidence was sufficient under a proper charge of the court to sustain the conviction, there was no reversible error. 2. —Same—Accomplice—Charge of Court. Under the statute punishing pandering, it is specifically provided that the wife of the person accused and the female for whom the accused is alleged to have procured a room in a house of prostitution may testify for or against the accused, and there was no error in the court’s failure to charge on accomplice testimony where such female testified against the defendant. 3. —Same—Charge of Court—General Reputation. Where, upon trial of pandering, there was other ample evidence in addition to the general reputation of the house as a house of prostitution, there was no error in refusing a requested charge that a house of prostitution can not be proven to be such by mere reputation, the court submitting a correct charge applicable to the evidence. 4. —Same—Charge of Court—Objections. Where the court’s charge specifically required the jury to believe that the said house was a house of prostitution with the other requisites of said offense before they could convict defendant on trial of pandering, there was no error on that ground. 5. —Same—Evidence—Bills of Exception. In the absence of a bill of exceptions, objections to the admission of testimony can not be considered on appeal; however, there was no error.
73 Tex. Crim. 132Rutherford v. State (1914)
The opinion states the case.
73 Tex. Crim. 133Johnson v. State (1914)
The opinion states the case.
73 Tex. Crim. 142Liegois v. State (1914)
1. —Permitting Bawdy House—Lessee—Accomplice. Where defendant was prosecuted and convicted as the lessee of a house which she knowingly permitted to be kept as a bawdy house, there was no error in the court’s failure to charge on accomplice testimony where the witness for the State was simply an inmate of said house and a tenant of one of the rooms furnished her by the defendant, and this even if she kept a disorderly house. 2. —Same—Rule Stated—Accomplice. The general test by which to determine whether one is an accomplice is the inquiry, could such person be indicted and punished for the crime for which the accused is being tried, and where the State’s witness could not be prosecuted and convicted of the offense for which defendant was tried, she was not an accomplice and there was no error in the court’s failure to charge on accomplice testimony. Following Peeler v. State, 3 Texas Grim. App., 533, and other cases. 3. —Same—Evidence—Bills of Exception. Upon trial of knowingly permitting a house to be kept as a bawdy house, testimony that certain women were inmates of said house and which tended to show that they were prostitutes and defendant was aware of that fact was properly admitted in evidence; besides, the bills t>f exception were defective. 4. —Same—Requested Charges. Where one of the requested charges was covered by the court’s main charge and another was not the law, there was no error in refusing them.
73 Tex. Crim. 144Ex Parte Latham (1914)
The opinion states the case.
73 Tex. Crim. 144Oswald v. State (1914)
The opinion states the case.
73 Tex. Crim. 146Powell v. State (1914)
1. —Obstructing Public Road—Statement of Pacts. Where, upon appeal from a conviction of unlawfully obstructing a public road, the statement of facts contained in the record was filed 'within twenty days after the adjournment of the County Court, but the record did not contain an order allowing the filing thereof after the term of court adjourned, the same can not be considered on appeal. 2. —Same—Practice on Appeal. In the absence of a statement of facts, a complaint that the evidence is insufficient and that the court erred in overruling objections .to the testimony can not be considered on appeal. 3.—Same—Evidence—Bills of Exception. In the absence of hills of exception, the exclusion of certain testimony can not he considered on appeal.
73 Tex. Crim. 147Meredith v. State (1914)
The opinion states the case.
73 Tex. Crim. 152Jones v. State (1914)
1. —Bigamy—Statement of Facts—Bills of Exception. A statement of facts must be prepared and filed within ninety days from the adjournment of the term of court at which the cause is tried, or within ninety days after the motion for new trial is overruled and notice of appeal given in,case the term of court continues for a term longer than eight weeks. 2. —Same—Bills of Exception. The statute provides for the filing of bills of exception within thirty days after the same time without any order of court, but authorizes the court to grant longer than thirty days, hut not to exceed ninety days under the same time and terms which the statement of facts can be filed. 3. —Same—Statement of Facts—Bills of Exception—Rehearing. Where the case was affirmed because the statement of facts was not -filed in the court below and the hills of exception were filed too late, but on motion for rehearing it was made to appear that these were properly filed, the same are now considered. 4. —Same—Indictment—Filing. Where it was claimed that the return of the indictment showed an impossible date, but the record showed that it was properly returned and filed in the lower court on a proper date, there was no error. 5. —Same—New Rules of Procedure. Under the new rules of procedure which took effect since July 1, 1913, only such matters as are presented in defendant’s motion for new trial can be assigned as error and considered by this court. Following Gant v. State, recently decided. 6. —Same—Sufficiency of the Evidence. Where, upon trial of bigamy, the evidence sustained the conviction, there was no error on that ground. 7. —Same—Requested Charge—General Objections. An objection that the court erred in refusing to submit defendant’s special charge No. 1 is entirely too general to be considered; besides, there was no error in the court’s refusal of the same. 8. —Same—Bills of Exception—Comparison of Handwriting. Upon trial of bigamy, there was no error in permitting the sheriff to testify about procuring defendant to write copies of a purported letter he had, on the ground that it was written in jail, the same being admitted only for the purpose of comparing his handwriting; besides, the bill of exceptions was defective. Following Ferguson v. State, 61 Texas Grim. Rep., 152, and other cases. 9. —Same—Evidence—Bill of Exceptions. Where defendant objected to the introduction of a petition for divorce against his former wife after he had remarried, but the bill of exceptions failed to state the contents of said petition, there was no error; besides, the matter was testified to by defendant himself. 10. —Same—Charge of Court—Fabricating Testimony. Where, upon trial of bigamy, defendant claimed as a defense that he had received a letter showing, that his former wife was dead and there was testimony that this letter was a fabrication, yet the court, in his charge, submitted this theory of the defense, and also submitted a full charge on the law as applicable to the facts, there was no error.
73 Tex. Crim. 158Girtman v. State (1914)
1..—Murder—Witness Under Rule—Discretion of dourt. Where there was nothing in the record which indicated that the action of the court, before placing the State’s witness under the rule, in allowing the district attorney to confer with the State’s witnesses by taking them collectively into a room adjacent 'to the courtroom where each and all of them could hear the testimony of each other, which in any way injured the defendant, and that the contradiction of one another by the witnesses occurred as usual and they did' not swear to the same thing, there was no error, under the discretion of the trial court. , 2. —Same—Evidence—Expert Opinion. Where a practicing physician had made an examination of the body of deceased the next morning after the killing and minutely testified as to the character of the wounds inflicted, there was no error in permitting him to testify that said wounds on the head of the deceased could have been made with a 45-caliber pistol used as a club; the State having shown that defendant had such pistol on the night of the killing and that there were still traces of blood, etc., thereon. 3. —Same—Evidence—Res Gestae. Upon trial of murder and a conviction of manslaughter, there was no error in permitting the State to show that shortly -before the killing the deceased called State’s witness out and asked him to go down and take defendant’s pistol away from him, etc., and that they were fixing to kill him, as this testimony was admissible as res gestae. Following Washington v. State, 19 Texas Grim. App., 521, and other cases. 4. —Same—Evidence—Moral Turpitude. There was no error in permitting the State on cross-examination of the defendant to ask him whether he was not then under indictment for an assault with intent to murder. 5. —Same—Officers of the Court—Practice in District Court. Upon trial of murder, there was no error in permitting the district attorney, sheriff, and deputy sheriff in holding a consultation in the presence of the jury while the defendant was testifying. 6. —Same—Evidence—Confessions—Arrest. Upon trial of murder, there was no error in permitting in evidence the declarations of the defendant with reference to the killing to the sheriff, made before he was arrested. Following Hilcher v. State, 60 Texas Grim. Rep., 180, and other cases. 7. —Same—Evidence—Hearsay—Declarations of Third Party. The declarations between third parties was purely hearsay, and there was no error in not admitting them in evidence; besides, the bill of exceptions was defective. 8. —Same—Charge of Court—Manslaughter—Aggravated Assault—Deadly Weapon. Where, upon trial of murder and a conviction of manslaughter, the court charged the jury on murder in the first and second degree, manslaughter and aggravated assault and defined the use of the instrument by which the fatal injury was inflicted, and if not a deadly weapon in the manner of its use, etc., the law presumed that death was not intended, and if so, to acquit defendant of manslaughter, and properly applied the law to the facts in evidence, there was no error. 9. —Same—Imputing Crime to Another—Charge of Court. .Where defendant complained that the court failed to charge the law of imputing crime to another, but the court in his charge required the jury to believe that defendant committed the homicide and no other before they could find him guilty, there was no error. Following Thurmond v. State, 27 Texas Grim. App., 422. 10. —Same—Charge of Court—Aggravated Assault—Harmless Error. Where, upon trial of murder and a conviction of manslaughter, the evidence did not raise the issue of aggravated assault, but the court, nevertheless, charged thereon, the defendant could not complain, even if the charge was incorrect. 11. —Same—Deadly Weapon—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the evidence tended to show that the killing was done by defendant with his pistol, using the same as a club, and the court properly submitted a charge defining what was a deadly weapon, there was no reversible error. Following Luttrell v. State, 70 Texas Grim. Rep., 183, and other cases. [Rehearing denied March 25, 1914.—Reporter.]
73 Tex. Crim. 165Durfee v. State (1914)
The opinion states the case.
73 Tex. Crim. 172Mistrot v. State (1914)
The opinion states the case.
73 Tex. Crim. 174Ford v. State (1914)
1. —Occupation—Intoxicating Liquors—Local Option—Indictment. Where, upon trial of engaging in the occupation of selling intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient. 2. —Same—Continuance—Want of Diligence. Where the application for continuance showed a total lack of diligence,, there was no error in overruling same. 3. —Same—Evidence—Bills of Exception. Where the bills of exception to the admission of testimony were defective in not pointing out the error complained of, they can not be considered on appeal. Following Conger v. State, 63 Texas Grim. Rep., 312, and other cases. 4. —Same—Sufficiency of the Evidence—Charge of Court. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the evidence was amply sufficient to sustain the conviction under a proper charge of the court, there was no error " in refusing to give defendant’s peremptory instruction to find defendant not guilty. Davidson, Judge, dissenting.
73 Tex. Crim. 178Wright v. State (1914)
1. —Murder—Charge of Court—Exceptions. Where, upon trial of murder, September, 1913, alleged to have been committed on the 18th day of October, 1912, the defendant failed to file his exceptions to the charge of the court as prepared and submitted to him before it was read to the jury, he could not assail the same in his motion for new trial, and this,' although the offense was committed prior to the passage of the law requiring that exceptions must be filed before the charge is read to the jury. 2. —Same—Rule Stated—Article 743—Procedure—Remedy. Statutes pertaining to the remedy or course and form of procedure, but which do not destroy all remedy for the enforcement of the right are retrospective so as to apply to causes of actions subsisting at the date of' their passage. The Legislature, at any time, may change the remedy or mode of procedure, etc. 3. —Same—Right of Appeal—Statutes Construed—No Fundamental Error. Under the Constitution of the State of Texas, the right of appeal is given only under such conditions and restrictions as may be provided by law, and consequently, the restriction in article 743, Code Criminal P-ocedure, as amended, as to what questions this court shall review on appeal is valid and binding, and the charge of the court can not be reviewed unless complained of at the time of the trial, unless fundamental error is committed. 4. —Same—Evidence—Rebuttal. Where defendant introduced testimony as to the previous relation between defendant and deceased and their families and which led him to believe that his life was in danger, the State could show that these conditions did not exist and that the killing took place under the circumstances testified to by the State’s witnesses. 5. —Same—Evidence—Self-serving Declarations. Upon trial of murder, there was no error to exclude the self-serving declarations of defendant made a long time after he had left the scene of the homicide. 6. —Same—Evidence—Harmless Error. Upon trial of murder, there was no error in admitting testimony that defendant, some time after the commission of the offense, requested the witness to get the two s—n-of-b—hs who arrested him before, in order that he might cut them down, it having been brought out by the defendant that he resisted arrest and refused to give up his gun on this occasion, etc.; this, if any error, was harmless. 7. —Same—Sufficiency of the Evidence. Where, upon trial of murder and the conviction thereof, the evidence amply supported the conviction there was no error. 8. —Same—Charge of Court—Exceptions to Charge. Where appellant complained that he was led to believe by the language of the court that, he was to be tried under the law and procedure in force at the time of the commission of the offense, but the record on appeal showed that when the testimony had been closed the court then prepared his charge and submitted it to counsel, who failed to file his written exceptions thereto and afterwards contended that he could raise these objections in & motion for new trial, this court can not review the matter on appeal, under article 743, Code Criminal Procedure, as amended, the defendant receiving the punishment formerly assessed for murder in the second degree, and there being no fundamental error.
73 Tex. Crim. 186Lingenfelter v. State (1914)
The opinion states the case.
73 Tex. Crim. 192Taylor v. State (1914)
The opinion states the case.
73 Tex. Crim. 194Bowman v. State (1914)
The opinion states the case.
73 Tex. Crim. 197Jasper v. State (1914)
Soliciting Insurance—Information—Substance. Where, upon trial of a violation of article 689, Penal Code, the information failed to. allege that defendant as solicitor was to receive compensation, either directly or indirectly, the cause must be reversed and remanded, although there was no motion to quash, the defect being one of substance.
73 Tex. Crim. 198Campbell v. State (1914)
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 sustained the conviction, under a proper charge of the court, there was no error. 2. —Same—Evidence—Bill of Exceptions. In the absence of a bill of exceptions to the admission of evidence, the same can not be reviewed on appeal. 3. —Same—Charge of Court as a Whole. Where the court’s charge as a whole fairly and fully presented every issue that was raised by the evidence, complaints to isolated portions thereof present no error. 4. —Same—Requested Charges. Where the requested charges were covered by the court’s main charge and others were not the law of the case, there was no error in refusing them. 5. —Same—Definition of Occupation—Charge of Court. Where the court’s charge on what is meant by pursuing the occupation of unlawfully selling intoxicating liquors in prohibition territory followed the law and precedent, there was no reversible error. Following Creech v: State, 70 Texas Crim. Rep., 229, 158 S. W. Rep., 277, and other cases. 6. —Same—Suspension of Sentence—Verdict—Charge of Court. Where the jury found defendant guilty as charged in the indictment and assessed his punishment at two years in the penitentiary and did not recommend the suspension of sentence under a proper charge of the court on this subject, there was no error in the court’s failure to submit requested charges thereon, and there was no error.
73 Tex. Crim. 200Burleson v. State (1914)
Tried below before the Hon. Wm. McDonald. Appeal from a conviction of aggravated assault; penalty, a fine of $25. The opinion states the case.
73 Tex. Crim. 201Clay v. State (1914)
Local Option—Insufficiency of the Evidence. Where, upon trial of a violation of the local option law, the prosecutor did not testify that he bought any whisky from defendant or that the latter had anything to do with it except point it out to him, and the defendant' testified that he did not sell the whisky, etc., the same was insufficient to support a conviction.
73 Tex. Crim. 203Berry v. State (1913)
The opinion states the case.
73 Tex. Crim. 208Ex Parte London (1913)
1. —City Charter and Ordinance—Garbage Department—Legislative Power. The Legislature has the power to authorize the city to enact under its charter an ordinance creating the office oí superintendent of the garbage department and to give the mayor and city council authority to appoint and confirm said officer, authorizing said superintendent to the exclusion of any other person to remove garbage in said city, etc. 2. —Same—Constitutional Law—Perpetuities—Monopolies. Where a city was authorized by its charter to appoint such officers, servants and agents of the corporation as may be provided for by ordinance, etc., and the city passed an ordinance ■ creating the office of superintendent of garbage department to the exclusion of any other person, the contention that said ordinance was void under article 1, section 26, Constitution of Texas, in that it ■created perpetuities and monopolies, is not sound, and such ordinance is valid. 3. —Same—Police Regulations—City Ordinance. In dealing with matters necessary to the preservation of the public health, such as the cleaning of privies, etc., the city council had the right to prescribe regulations and make it the duty of some officer or agent to see that the regulations are complied with, and prevent others from engaging in that occupation as a mode or means of making a livelihood. Following Ex parte Howell, 71 Texas Grim. Rep., 71, 158 S. W. Rep., 535. 4. —Same—Reasonable Regulation. The question that the regulation of fees of officers is unreasonable has not been properly raised, and can not be considered. [Rehearing denied March 4, 1914.—Reporter.}
73 Tex. Crim. 212Qualls v. State (1914)
1. —Seduction—Charge of Court—Abandonment. Where, upon trial of seduction and abandonment after marriage, the court instructed the jury affirmatively upon every defensive issue made by the evidence, and also instructed them that if the wife abandoned the defendant, to acquit him, there was no reversible error in the contention that the court should have submitted the issue that if defendant’s wife abandoned him in Oklahoma that his subsequent refusal to live with her in the county of the prosecution in Texas would entitle him to an acquittal. Davidson, Judge, dissenting. 2. —Same—Requested Charge—Evidence—Two Years. Where, upon trial of seduction and abandonment after marriage, the court correctly admitted testimony showing that defendant’s wife did not intend to abandon him and showed on the other hand that he had the intention of abandoning her, etc., there was no error in refusing a special charge that this evidence could not be considered for any purpose, and the Charge of the court in submitting the issue of the case was not subject to the criticism that it authorized the jury to convict defendant if they believed he intended to abandon his wife after two years. Davidson, Judge, dissenting. 3. —Same—Charge of Court—Abandonment. Where, upon trial of seduction and abandonment, etc., the evidence did not show that defendant’s wife refused to marry him before he was charged with seduction, and further showed that he subsequently did marry her to secure a dismissal of the prosecution for seduction, he was under the legal obligation to carry out the obligations he assumed by such course, and the contention that the court should have submitted a special requested instruction presenting the issue that if defendant offered to marry her, and she refused such offer, to acquit, is not well taken. Davidson, Judge, dissenting. 4. —Same—Evidence—Other Transactions—Remarks by Judge. Upon trial of seduction and abandonment after marriage, testimony that defendant’s wife had been engaged to other men prior to1 the time she became engaged to the defendant was "not germane to any issue in the case, there being no testimony that she had had carnal intercourse with such men; however, the court admitted such testimony, and his remark that he did not consider the matter serious and that the jury could give it such weight as it thought it entitled to presents no error; neither does the fact that the district attorney was nervous when he objected to the testimony. Davidson, Judge, dissenting. 5. —Same—Evidence—Explanation. Upon trial of seduction and abandonment after marriage, it was permissible, under the circumstances, for the wife of defendant to exnlain why she had made the remark that slm was going to Texas to get revenge, and to show that this was simply uttered in a fit of anger and that she subsequently made overtures to defendant to live with him as his wife and he declined them. Davidson, Judge, dissenting.
73 Tex. Crim. 222Gowan v. State (1914)
1. —Murder—Transcript—Ninety Days. The law requires that the transcript be filed in this court within ninety days from the adjournment of the trial court, or if the term lasts more than eight weeks, within ninety days from the overruling of the motion for a new trial. 2. —Same—Filing of Bills of Exception—Antedating. Neither the trial judge nor any other person has authority or power to authorize the antedating of bills of exception and statement of facts, and where it was shown to this court that this had been done, such papers can not be considered on appeal. Following Bryant v. State, 35 Texas Grim. Rep., 394, and other cases. 3. —Same—Statement of Facts—‘Filing. Where it was shown to this court that the statement of facts was not in fact filed within the ninety days after adjournment of the trial court, etc., and that it was not presented to the district attorney or the court for approval within time, and that the same bore a false date of filing, the same can not be considered on appeal. 4. —Same—Jury and Jury Law—Incompetency of Juror. Where the trial court, in overruling a motion for new trial, stated he heard and considered the evidence on the ground of the incompetency, of one of the jurors, and there was no evidence before this court, it must be presumed that ■the trial court did not abuse his discretion in finding that the juror was qualified at the time of the trial. Following Jordan v. State, 10 Texas, 480, and other cases. 5. —Same—Admonition to Trial Judges—Officers of Court. Trial judges and prosecuting officers are admonished not to authorize statement of facts and bills of exception to be filed back as of date within the time; such is a violation of law as it is written and simply results in the delay of criminal cases. 6. —Same—Statement of Facts and Bills of Exception. Where it is shown by evidence in this court that the purported statement of facts and bills of exception were not prepared and presented in the trial court in the time allowed by law, appellant must suffer the consequences of his own negligence, and the case must be affirmed. 7. —Same—Dereliction of Clerk—Delay in Filing Transcript. Where it was shown to this court that the clerk of the court below was serving his first term of office and was acting under the instructions of the trial judge in antedating the filing of the statement of facts and bills, of exception and in the delay in sending the transcript to this court, he will be discharged with the payment of the costs incident to the proceeding. 8. —Same—Practice on Appeal. Where appellant, by his negligence, was not entitled to have his case reviewed, but this court, nevertheless, did so, and found that the conviction of murder in the second degree is amply sustained by the evidence, the judgment is affirmed. 9. —Same—Bills of Exception—Want of Diligence. Where appellant and his counsel admitted that they .did not deliver the bills of exception to the trial judge until about six months after the trial, they can not complain that this court will not consider them. Following Bio jas v. State, 36 Texas Grim. Bep., 182, and other cases. 10. —Same—Bills of Exception—Duty of Defendant. It is made the imperative duty of appellant to see that his bills of exception are filed within the time fixed by law, as this court must be bound by the law and he must not only deliver the bills to the trial judge, but follow them up and have them acted on and filed, and unless this is done they will not be considered on appeal. 11. —Same—Statement of Facts—Agreement—Antedating. Where it is manifest from the record on appeal that the statement of facts was not presented to the trial judge for his approval until more than one hundred days had elapsed after the adjournment of the trial court for the term, the same can not be considered on appeal, and counsel can not by agreement abrogate the law and antedate the filing of such statement of facts or bills of exception, and the question as to whether this court considered the record in other cases where it deemed it proper and before notice was published in the daily press notifying all the clerks that the transcript must be promptly forwarded, this presents no cause for leniency for ignoring the plain letter of the law; besides, such antedating in other cases was not called to the attention of this court.
73 Tex. Crim. 229Barker v. State (1914)
1. —Receiving and Concealing Stolen Property—Evidence—Co-defendant. Where, upon trial of receiving and concealing stolen property, the conviction depended upon the testimony of a confessed accomplice, and it developed after the trial that defendant’s co-defendant was discharged from custody and relieved of prosecution, and defendant obtained his written sworn statement and appended the same to the motion for new trial showing that said co-defendant would have contradicted material testimony of the said accomplice, the defendant should have been awarded a new trial. Following Rucker v. State, 7 Texas Grim. App., 549, and other cases. 2. —Same—Continuance—Practice on Appeal. Where the judgment is reversed and the cause is remanded upon other grounds, the application for continuance need not he considered. However, it is suggested that if the absent witness would testify as alleged, the same would he material. [Rehearing denied March 11, 1914.—Reporter.]
73 Tex. Crim. 232Gorrell v. State (1914)
1.—Theft—Bringing Stolen Property Into this State—Indictment. Where the indictment, charging defendant with bringing stolen property into this State, followed article 1431, Penal Code, and approved precedent, the same was sufficient. 8.—Same—Accomplice—Corroboration—Sufficiency of the Evidence. Where the testimony of the accomplice was corroborated as required by the statute, and the evidence was sufficient to sustain the conviction of bringing stolen property into this State, there was no error in refusing to submit a peremptory charge to find defendant not guilty. 3. —Same—Evidence—Continuance—Bill of Exceptions. In the absence of bills of exception complaints to the introduction of testimony and the overruling of a motion for continuance can not be considered on appeal. 4. —Same—Defendant’s Failure to Testify—Misconduct of Jury. Where the motion for new trial complaining of the jury’s allusion to the defendant’s failure to testify was not sworn to or supported by affidavit or any other testimony, there was no error in overruling same. 5. —Same—Conduct of Trial Judge. Where appellant complained that while the trial was proceeding, the judge vacated the bench and talked with the prosecuting attorney, but the jury could not hear the same and there was nothing to show that this conversation had any influence upon the trial, there was no error. 6. —Same—Evidence—Acts of Defendant. Upon trial of theft of cattle in Oklahoma and bringing them into this State, there was no error in permitting the State to show the transaction between the witness as a banker and the defendant, and that he paid the latter fifty dollars on a check made out by the purchaser of the cattle; the State not attempting to prove the contents of said check and the same having already been proven. 7. —Same—Proof of Foreign Law—Charge of Court. Where the State was permitted without objection to show what the laws of the State of Oklahoma were, both as to theft generally and theft of cattle, and the court properly charged thereon, upon trial of theft of cattle in the State of Oklahoma and the bringing of them into this State, there was no error. 8. —Same—Variance—Charge of Court. Where the indictment alleged the theft of one head of cattle in the State of Oklahoma and bringing the same into this State, and the court properly submitted his charge following the indictment, it was no variance that the evidence not only showed the theft of this one head of cattle, but others at the same time. 9. —Same—Accomplice—Charge of Court. Where the charge of the court in submitting the law on accomplice testimony in substance, if not literally, followed the requested charge, there was no error in the court’s refusal to submit said requested charge. 10. —Same—Charge of Court—Principals. Where, upon trial of theft of cattle in another State and bringing the same into this State, defendant’s companion turned State’s evidence, the court properly submitted the law of accomplice, and required the jury to find that defendant was present during the commission of the offense before they could convict him. 11-—Same—Election by State—Charge of Court—Variance. Where the indictment charged the theft of one head of cattle and the evidence showed the theft of more than one head of cattle, and the court properly submitted the theft of one head of cattle to the jury, there was no error in not requiring the State to elect what particular head of cattle was meant, neither was there any variance between the allegation and proof. 12.—Same—Charge of Court. Where the requested charge did not disclose upon what phase of the evidence it was to apply, and it could not be told from the record what was intended thereby, there was no error in refusing same.
73 Tex. Crim. 237Espinoza v. State (1914)
1.—Murder—Evidence—Co-defendant—Suspended Sentence. Under the second Suspended Sentence Act, neither the verdict of conviction nor the judgment thereon shall become final except under certain conditions, and where a co-defendant pleaded guilty to assault with intent to murder and his punishment was assessed at two years confinement in the penitentiary, but his sentence was suspended on the recommendation of the jury, he was a competent witness for the State against the defendant who was upon trial for murder. 8.—Same—Evidence—Non-expert Opinion. Where, upon trial of murder, it developed that the wounds upon deceased, other than that in the back under the shoulder, were shallow wounds while the one in the back was a fatal wound, and the opinion of non-expert witnesses that this was so based upon facts which they detailed before the jury, their expression of opinion was but the crystallization of the facts, there was no error in admitting in evidence their opinion. 3. —Same—Rule Stated—Non-expert Opinion. The admissibility of the opinions of non-experts rests upon three necessary conditions: First, that the witness detail to the jury so far as he is able the facts and circumstances upon which his opinion is based; second, that the subject matter to which the testimony relates can not be reproduced and described to the jury precisely as it appeared to the witness at the time; and, third, that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending. Following Jackson v. State, 29 Texas Grim. App., 458, and other cases. 4. —Same—Charge of Court—Accomplice. Where, upon trial of murder, the accomplice testified that he inflicted the wounds in front with one knife, and placed defendant at the side or back of deceased, there was no error in admitting evidence of the non-expert opinion of witnesses based upon facts which they detailed before the jury that the wound in the back was the fatal one and was inflicted with a different instrument than that with which the wounds in front were inflicted, the court instructing the jury that said co-defendant was an accomplice and required the necessary corroboration. Davidson, Judge, dissenting. 5. —Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify. Where it was shown that one juryman asked why the defendant did not testify when he was promptly informed that he could not consider that, and there were no further remarks about the matter and no discussion whatever relative to it, there was no error. 6. —Same—Principals—Charge of Court. Where, upon trial of murder, the evidence raised the issue of principals and the court properly charged thereon, there was no error in refusing requested charges on the same subject and others which were on the weight of the evidence. Davidson, Judge, dissenting. 7. —Same—Motion for Rehearing—Stating Facts in Opinion. Where the motion for rehearing insisted that the conclusions of fact were incorrectly held by this court, but the record on appeal bore out the court’s statement of facts and conclusions, there was no error. 8. —Same—Evidence—Mon-expert Opinion. Where the non-expert witnesses did not give any opinion as to which wound was first inflicted, but simply testified that the wound inflicted in the back of the deceased could not have been made by the instrument that inflicted the wounds in front of deceased, and that the wound in the back was a fatal one, basing their opinion upon facts detailed to the jury, there was no error. Distinguishing Powdrill v. State, 62 Texas Grim. Rep., 442. 9. —Same—Sufficiency of the Evidence—Circumstantial Evidence—Charge of Court. Where, upon trial of murder, the evidence and circumstances in the ease sustained a conviction of murder in the second degree under a proper charge of the court upon circumstantial evidence and the law applicable to the facts in the case, there was no reversible error. 10. —Same—Charge of Court—Principals—Fatal Wound. Where, upon trial of murder, the court correctly charged the jury that the mere presence of the defendant would not constitute him a principal and that before they could convict him they must find that he, knowing the unlawful intent, did aid by acts or encourage those actually engaged in the commission of the offense, and the evidence authorized a conviction that defendant acted with another in the commission of the offense, it would be immaterial which wound was the fatal one. 11. —Same—Charge of Court—Objections. Where, upon trial of murder, the defendant was tried under the law which provides that the court shall prepare a charge and submit it to counsel, who shall then make such objections to the charge in writing as they desire, this court on appeal can not pass on any question not thus made and presented to the trial court. 18.—Same—Accomplice—Charge of Court. Where, upon trial of murder, the court charged on accomplice testimony and submitted same to defendant’s counsel, who made no objections thereto as required by law, this court can not review the matter; besides, the evidence raised the issue of accomplice and the court, therefore, properly submitted the question in his charge. Davidson, Judge, dissenting.
73 Tex. Crim. 251Kirklin v. State (1914)
The opinion states the case.
73 Tex. Crim. 255Coleman v. State (1914)
The opinion states the case.
73 Tex. Crim. 258Hightower v. State (1914)
The opinion states the case.
73 Tex. Crim. 266Lane v. State (1914)
1. —Murder—Evidence—Motive. Upon trial of murder there was no error in admitting testimony to show defendant’s adulterous relations with the wife of the deceased, some time before the homicide, in order to prove motive on the part of the defendant. 2. —Same—Evidence—Bolstering Up Testimony. Upon trial of murder there was no error in admitting testimony of adulterous relations between defendant and the wife of the deceased, and that the witness who testified thereto told a third party about it, as the State did not attempt to introduce any other witness to bolster up the statement of such State’s witness that he had made it to said third party. 3. —Same—Evidence—Moral Turpitude. Upon trial of murder, on cross-examination of the defendant, there was no error in permitting the State to ask him and require him to testify that he was convicted of an assault to murder and sentenced to the penitentiary in 1903 for two years; the instant offense being charged to have been committed in 1912, the court properly limiting said testimony. Following Oates v. State, 67 Texas Grim. Rep., 488, 149 S. W. Rep., 1194. 4. —Same—Continuance—Want of Diligence—Cumulative Evidence—Depositions. Where the bill of exceptions showed a want of diligence to procure the absent testimony and that the same was cumulative in character, there was no error in overruling the application for continuance. An accused can not be compelled to take depositions. 5. —Same—Witness Under Buie. The question of placing a witness under the rule is within the discretion of the court, and where no abuse of discretion was shown, there was no reversible error. 6. —Same—Evidence—Letter. Where, upon trial of murder, the State introduced a certain letter purporting to have been written by defendant to the wife of the deceased showing undue intimacy between them, and the jury were instructed not to consider same unless the letter was written by the defendant, there was no reversible error. Following Gonzales v. State, 31 Texas Grim. Rep., 508, and other eases. 7. —Same—Charge of Court—Motive—Article 743, Code of Criminal Procedure. Where, upon trial of murder, the court properly charged on the different degrees of murder, manslaughter and self-defense and threats, and further instructed the jury that the testimony relating to the relations of the defendant with deceased’s wife was admitted only on the question of intent and motive, and no objection was made to this paragraph of the court’s charge when given, there was no error under article 743, Code Criminal Procedure. [Rehearing denied March 11, 1914.—Reporter.]
73 Tex. Crim. 272Davis v. State (1914)
The opinion states the case.
73 Tex. Crim. 273Smith v. State (1913)
1. —Rape—Child Witness—Discretion of Court. Where, upon trial of rape, the record showed on appeal that the prosecutrix who testified for the State was not quite six years of age, and the court, after testing her competency as a witness, permitted her to testify, and under the authorities of this State, she seemed to have met the requirements of the law as to her competency as a witness, there was no error in permitting her to testify. 2. —Same—Child Witness—Capital Case—Statutes Construed. Where, upon trial of rape, it developed that the prosecutrix who testified for the State was not quite six years of age, and counsel objected that the witness was incompetent to testify by reason of the fact she was under seven years of age, and, as a matter of law, irrespective of her intelligence, a child under seven years of age is incompetent to testify in a capital case for the reason that the only penalty affixed to perjury committed in a capital case is death, and that a person under seventeen years of age can not be punished by the death penalty, and could, therefore, not testify subject to the pains and penalties of perjury as provided in section 5, article 1, of the Constitution of Texas. Held, that article 311, Penal Code, does not apply because "the defendant was not punished by death, but by eonfinement in the penitentiary. 3. —Same—Statutes Construed—Rule Stated—Death Penalty. Under article 311, Penal Code, the perjury must not only he in a capital case, but it must be as to a material fact, and the result of the trial must end in the death penalty conviction and by which the party suffers death, and, therefore, defendant’s contention that the child witness was incompetent to testify because, if a death penalty resulted, she could not be convicted of perjury, is not brought within the terms of said article, as the defendant was only allotted fifteen years imprisonment in the penitentiary, and the fact that the death penalty might have been inflicted did not render the witness incompetent, although she testified to material facts. 4. —Same—Sufficiency of the Evidence. Where, upon appeal from a conviction of rape, the offense was admitted by the statement of facts, and there was no error in permitting the prosecutrix, who was a child not quite six years of age, to testify, and the testimony was sufficient to sustain the conviction, there was no reversible error. 5. —Same—Statutes Construed—Legislative Authority. See opinion for a discussion and construction of articles 34, 310 and 311, Penal Code, holding that whether it be wise or not that the Legislature should make the exception in favor of perjury authorizing the conviction of children, is not for this court to say, as this is a matter of legislative authority. [Behearing denied March 11, 1914.—Beporter.]
73 Tex. Crim. 278Fate v. State (1914)
1. —Rape—Jury Viewing Ground. Upon trial of rape, the court correctly • refused that the fury inspect the ground where the offense was alleged to have occurred. 2. —Same—Charge of Court—Objections. Where no written objections were filed to the court’s charge prior to the time it was read to the jury, objections in a motion for new trial come too late; however, there was no error in the court’s charge. 3. —Same—Verdict—Punishment Not Excessive—Reforming Sentence. Whenever a verdict is within the period of time fixed by law as punishment for the offense, it is not excessive; however, where the court erroneously sentenced defendant, the sentence will be reformed according to the verdict.
73 Tex. Crim. 279Gant v. State (1914)
1. —Murder—Rules of Supreme Court—Motion for New Trial. The rules of our Supreme Court provide that in a motion for a new trial in the trial court all grounds relied on shall be stated, or the Appellate Court will not consider such grounds, and where the bills of exception were not filed until after the trial court adjourned and no complaint is made in regard to any of these matters in the motion for new trial, the same can not be considered.- 2. —Same—Bills of Exception—Practice on Appeal—Rule Stated. The record must disclose that the bills of exception were presented to the trial judge and that they were overruled, and this must appear in the motion for new trial, and bills of exception filed after adjournment of which no complaint is made in the motion for new trial can not be considered on appeal. 3. —Same—Assignments of Error—Practice on Appeal. Assignments of error other than the motion for new trial have no place in the record on appeal and will be stricken out therefrom; however, when the bills of exception are considered they present no error. 4. —Same—Dying Declarations—Evidence. Where it was manifest that deceased had no hope of recovery and knew that death was certain, his declarations then made were admissible in evidence. 5. —Same—Evidence—Res Gestae. Upon trial of murder there was no error in permitting the wife of the deceased to testify that she was near him when the fatal shot was fired and at once went to him; this was res gestae. 6. —Same—Evidence—Ill-will. Upon trial of murder there was no error in admitting testimony to show the bad feeling existing between the parties to show motive. 7. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not show what answer, if any, the witness gave to the question propounded, and in another bill that the court sustained the objection to the questions which in themselves presented no error, there was no error. 8. —Same—Jury and Jury Law—Affidavits. In the absence of supporting affidavits of other evidence to the complaint that the juryman could neither read nor write, and the record showing that he could, there was no error. 9. —Same—Charge of Court—Objections. In the absence of exceptions filed to the charge of the court during the trial as the law requires, complaints in the motion for new trial would come too late; besides, there was no error. 10. —Same—Requested Charges. In the absence of any objection to the charge of the court at the time the same was read to the jury, a refusal of a special requested charge can not be considered; besides, the same was embraced in the court’s main charge. 11. —Same—Separation of Jury—Affidavits. In the absence of supporting affidavits or bill of exceptions presenting the testimony, a complaint that the jury separated during its deliberation can not be considered on appeal. 12. —Same—Indictment. Where, upon trial of murder, the indictment sent up with the record was sufficient, there was no error.
73 Tex. Crim. 282Sands v. State (1914)
1.—Malicious Mischief—Circumstantial Evidence. Where, upon trial of poisoning domestic animals with intent to injure the owner, the evidence, although circumstantial, was sufficient to support the conviction, there was no reversible error. Z.—Same—Evidence—Circumstances. Where, upon trial of unlawfully poisoning certain mules, etc., -with intent to injure the owner, it developed on the trial that defendant had arsenic on hand at the time the stock were killed in greater quantities than usual, there was no error in admitting testimony that such arsenic was found with him after the commission of the offense, but which he had ordered before his arrest, etc. 3.—Same—Number of Animals Killed—Variance. Where defendant was charged with unlawfully poisoning nine head of mules and four head of mares, and only twelve carcasses were found and one missing, there was no variance which was fatal to the conviction, as the number actually poisoned was immaterial.
73 Tex. Crim. 284Bierman v. State (1914)
1. —Local Option—Suspended Sentence—Sentence—Appeal. Where, upon appeal from a conviction of a violation of the local option law, it appeared from the record that the jury recommended a suspension of sentence, whereupon, the court ordered that sentence of the judgment of conviction be suspended during the good behavior of the defendant, the right of appeal did not attach, as no final sentence was pronounced, and the appeal must be dismissed without prejudice. 2. —Same—Statutes Construed. Under the Suspended Sentence Law neither the verdict of conviction nor the judgment entered thereon shall become final except under the conditions provided in said law, and a suspension of sentence during good behavior is not a final judgment from which an appeal can be taken.
73 Tex. Crim. 286Laws v. State (1913)
The opinion states the case.
73 Tex. Crim. 288Simmons v. State (1914)
The opinion states the case.
73 Tex. Crim. 290Stanfield v. State (1914)
The opinion states the case.
73 Tex. Crim. 295Coffman v. State (1914)
The opinion states the case.
73 Tex. Crim. 313Sewell v. State (1914)
1. —Murder—Sufficiency of the Evidence—Accomplice—Corroboration. Where, upon trial of murder, the evidence was sufficient to sustain a conviction and the testimony of the accomplices sufficiently corroborated, there was no reversible error. 2. —Same—Functions of the Jury. Our law expressly provides that the jury in all eases are the exclusive judges of the facts proved and of the weight to he given to the testimony, and this court can not take the question of fact from the jury, and where the evidence is sufficient to sustain the conviction, the same will not be disturbed. Following Cain v. State, 68 Texas Grim. Rep., 507, 153 S. W. Rep., 147, and other cases. [Behearing denied April 15, 1914.—Beporter.]
73 Tex. Crim. 317Phillips v. State (1914)
1.—Bobbery—Former Conviction—Pleading—Appeal Pending. Where, upon trial of robbery, the defendant pleaded former conviction and contended that he was convicted of false imprisonment in the County Court on. facts growing out of the same transaction, but it appeared that an appeal was pending thereon, and he made no motion to continue or postpone the ease and his said plea was in other respects defective, there was no error in striking it out. 8.—Same—Rule Stated—Former Conviction.—Pleading. Under article 572, Code Criminal Procedure, a plea of former conviction must be in writing and sworn to and can not be made under the plea of not guilty, and where the former conviction is pending on a motion for new trial or on an appeal, he must make a motion to continue. Following Lindley v. State, 57 Texas Crim. Rep., 305, and other cases. 3. —Same—Former Conviction—Misdemeanor. Where defendant was being tried for robbery, he could not interpose a plea of former conviction of false imprisonment in this court, as this court is an appellate court and can not try the facts. Following Lee v. State, 66 Texas Crim. Rep., 567, and other cases. 4. —Same—Evidence—Materiality of Testimony. Where, upon trial of robbery, the evidence showed that the party injured was employed as a detective to ferret out violations of the local option law, and that he was inveigled into entering defendant’s barber shop where he was cruelly beaten and then robbed by defendant and his campanions, there was no error in admitting testimony that the party injured was so employed and all the facts leading up to the robbery and which transpired immediately thereafter. 5. —Same—Evidence—Cross-examination. Where, upon trial of robbery, the whole manner of cross-examination of the principal State’s witness was such as to make it appear that his testimony was a fabrication, there was no error in admitting supporting testimony by various witnesses showing that the testimony of said principal State’s witness was in accordance with the facts. 6. —Same—Internal Revenue License—Evidence—Motive. Upon trial of robbery which grew out of the effort of the principal State’s witness to detect violations of the local option law, and that defendant was found with whisky in his possession and had inveigled said prosecuting witness into his barber shop and there, together with his companions, cruelly whipped and then robbed him, there was no error in permitting the State to show that the defendant had internal revenue license to sell intoxicating liquors. 7. —Same—Evidence—Immateriality of Testimony. Upon trial of robbery, there was no error in rejecting testimony that the principal State’s witness had illicit intercourse with a woman, and other immaterial testimony. 8. —Same—Charge of Court—Objections. Where, upon trial of robbery, the court submitted a full and proper charge applying same to the facts of the case and fully covered the requested charges which were refused, there was no error; besides, the objections were too general. Following Byrd v. State, 69 Texas Crim. Rep., 35. 9. —Same—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence sustained the conviction under a proper charge of the court, there was no error. [Rehearing denied March 27, 1914.—Reporter.]
73 Tex. Crim. 325Cooley v. State (1914)
The opinion states the case.
73 Tex. Crim. 329Andrus v. State (1914)
The opinion states the case.
73 Tex. Crim. 334Carter v. State (1914)
1. —Assault to Murder—Suspended Sentence—Indeterminate Sentence Act. Upon trial of assault to murder, it was reversible error not to submit defendant’s plea seeking a suspension of the sentence, etc., as the former Indeterminate Sentence Act, even if not void, did not repeal the Suspended Sentence Act, as both could have stood together; besides, the later Act of August 8, 1913, expressly provides that it shall not repeal or limit the Suspended Sentence Act of February 11, 1913. 2. —Same—Evidence—Co-defendant—Remarks by Judge. • Upon trial of assault to murder, there was no error in not permitting the codefendant to testify in behalf of the defendant and reprimanding counsel for offering such testimony. 3. —Same—Evidence—Rebuttal—Hot Self-serving Declaration. Where, upon trial of assault to murder, the State claimed that the defendant and others waylaid the party assaulted, which defendant denied and claimed that the meeting of himself and his brother with the parties injured was accidental, he should have been permitted to show his theory of the case by the declaration of his brother with reference to his movements. 4. —Same—Charge of Court—Simple Assault. Where upon trial of assault to murder, the court properly charged the law applicable to the facts, there was no error in refusing a requested charge of the defendant which were not applicable to that case, including one on simple assault, which was not raised by the evidence.
73 Tex. Crim. 337Shaw v. State (1914)
The opinion states the case.
73 Tex. Crim. 340Bragg v. State (1914)
The State’s testimony showed that the prosecuting witness bought a bale of cotton from defendant’s son, and paid a valuable price therefor, something like $69 or $70, and that when he examined the same a day or two thereafter, he noticed that it was not cotton at all; that it was no good and that there was absolutely nothing but motes, sand, etc.; that he had bought the cotton by sample for good cotton, etc.; that defendant knew of the character of the swindle and induced his son to sell the same to the prosecuting witness, etc.
73 Tex. Crim. 343McMillan v. State (1914)
1.—Murder—Manslaughter—Self-defense—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the court’s charge on self-defense required the jury to believe certain unimportant and unnecessary things in evidence before they could acquit, and defendant made a timely objection thereto, the same was reversible error. 2.—Same—Corpus Delicti. Where, upon trial of murder and a conviction of manslaughter, the evidence was probably sufficient to establish the corpus delicti, yet, in view of a new trial, the same should be established by stronger evidence.
73 Tex. Crim. 345Chant v. State (1914)
1. —Murder—Special Term of District Court. The district judge has authority to call a special term of the District Court and arraign and try persons accused of crime at said special term. Following Ex Parte Young, 49 Texas Grim. Rep., 536, and other cases. 2. —Same—Self-serving Evidence. The court did not err in sustaining an objection as to defendant’s declaration as to what took place long after the difficulty and under such circumstances as not to come within the rule governing res gestae statements: besides, the bill of exceptions was defective, and this character of testimony was afterwards admitted. 3. —Same—Misconduct of Jury—Impeaching Verdict. Jurors are not permitted to impeach their verdict by testifying that they in fact believed defendant’s theory of the case, but agreed to the verdict of guilty in an effort to compromise, etc. 4. —Same—Express and Implied Malice—Charge of Court. Where defendant was convicted of murder on implied malice, an objection to the charge of the court submitting murder upon express malice need not be considered. 5. —Same—Manslaughter—Charge of Court—Negligent Homicide. Where, upon trial of murder, the State’s evidence raised the issue of implied malice and the evidence for the defense, accidental homicide and the testimony as a whole, also raised the issue of negligent homicide, all of which the court submitted to the jury, and under no theory was the question of intentional shooting under the influence of sudden passion, etc., produced by an adequate cause raised by the evidence, there was no error in the court’s failure to charge on manslaughter; besides, the objections to the court’s charge were too general. 6. —Same—Conspiracy—Charge of Court. Where, upon trial of murder, the evidence showed that defendant and another engaged in an unlawful purpose of doing an unlawful act during which the deceased was killed, there was no error in the court’s charge submitting the law of conspiracy, the court also submitting the converse of the proposition under defendant’s evidence that he in nowise aided or encouraged the other in the unlawful mission and that the killing was purely accidental. 7. —Same—Misconduct of Jury—Separation. Where, upon trial of murder, it appeared from the record on appeal that one of the jurors became ill during the trial and was waited upon by a physician and his aunt in the presence of an officer and nothing improper occurred and that he, in fact, was not separated from the other jurors, there was no reversible error. [Behearing denied May 6, 1914.—Beporter.]
73 Tex. Crim. 352Steele v. State (1914)
Carrying Pistol—Character of Pistol—Charge of Court. Upon trial of unlawfully carrying a pistol, there was no error .in refusing a, requested charge that if the jury believed that the pistol was not in shooting condition or had a reasonable doubt thereof to acquit defendant, under the evidence in this case. [Rehearing denied May 6, 1914.—Reporter.]
73 Tex. Crim. 353Bradfield v. State (1914)
1. —Anonymous Letter—Sufficiency of the Evidence. Where, upon trial of delivering an anonymous letter, etc., the evidence sustained the conviction, there was no error on that ground. 2. —Same—Indictment—Sending and Delivering. It was the undoubted intention of the Legislature not only to make it unlawful for any person to deliver or cause to be delivered any such letter, but also to send the same, and an objection to the indictment that no punishment attaches where the writer himself delivers such letter, is untenable, as the law does not exclude, but embraces one who delivers the letter or causes it to be delivered as well as one who sends or causes it to be sent. 3. —Same—Complaint and Information—Words and Phrases. Where, upon trial of delivering an anonymous letter, etc., the information alleged said letter reflects, etc., an objection that the statute used the word, “reflecting,” and that the information was therefore insufficient is hypercritical. • 4. —Same—Complaint—Information—Letter. Upon trial of delivering an anonymous letter to a female reflecting upon her chastity, etc., it was not necessary to copy the alleged letter in the complaint or information. 5. —Same—Charge of Court—Misdemeanor. Where the complaint to the court’s charge and the refusal of requested charges was not properly reserved by bill of exceptions, the same could not be considered on appeal in a misdemeanor case. Following Giles v. State, 66 Texas Grim. Rep., 638, and other cases. 6. —Same—Evidence—Consent. There was no error in not permitting defendant’s witness to testify that on the .night before defendant delivered the alleged anonymous letter, the witness saw defendant hugging and kissing the prosecutrix, it not having been shown whether this was done with her consent or permission. [Rehearing denied May 13, 1914.—Reporter.]
73 Tex. Crim. 359Herrington v. State (1914)
1. —Illegal Practice of Medicine—Constitutional law. The law prohibiting the unlawful practice of medicine is constitutional. Following Collins v. State, 223 U. S., 288. 2. —Same—Information—Separate Offense—Conjunctive. Where the information, in a prosecution for unlawfully practicing medicine, charged the same offense conjunctively as denounced by article 755, Penal Code, it did not thereby charge two separate and distinct offenses, as claimed by the defendant. Following Phillips v. State, 29 Texas, 226, and other cases. 3. —Same—Information—Surplusage. But even if it could be held that article 755, Penal Code, prescribed two separate and distinct offenses, then, in the complaint and information in the instant case, that part which charges the first alternative of said statute could, and should be, regarded as surplusage; besides, the court only submitted the second clause of said statute. Following Mayo v. State, 7 Texas Crim. App., 342, and other cases. 4. —Same—Requested Charges. Where all the issues properly raised had been properly submitted to the jury, there was no error in refusing requested charges thereon. 5. —Same—Masseur—Charge of Court. Where, upon trial of illegally practicing medicine, the. evidence did not raise the issue that the defendant was only a masseur in that sphere of labor who publicly represented himself as such, there was no error in the court’s failure to charge thereon; besides, the requested charge did not correctly present the law. Following Mealer v. State, 66 Texas Crim. Rep., 140, and other eases. 6. —Same—Accomplice—Charge of Court. Where, upon trial of illegal practice of medicine, the State’s witnesses were not accomplices, there was no error in the court’s failure to charge thereon. Following Minter v. State, 70 Texas Crim. Rep., 634, and other cases. 7. —Same—Sufficiency of the Evidence. Where, upon trial of unlawfully practicing medicine, the evidence sustained a conviction under proper charge of the court, there was no error. [Rehearing denied May 13, 1914.—Reporter.]
73 Tex. Crim. 362Hart v. State (1914)
1. —Perjury—Indictment—Negative. Where, upon trial of perjury, the criticism of the indictment was that the same was insufficient because it did not specifically negative the truth of the alleged false statement, but the indictment did allege that said false statement was false and untrue, the same was sufficient, as no particular form of negation is necessary. Following Chavarria v. State, 63 S. W. Rep., 312, and other cases. 2. —Same—-Proof Necessary—Sufficiency of the Evidence. Where, upon trial of perjury, the chief witness for the State sustained the allegations in the indictment and was corroborated by three other State’s witnesses, all of whom were- credible, the conviction was sustained. 3. —Same—Credible Witness—Definition—Charge of Court. Where, upon trial of perjury, the court charged the jury that a credible witness is one who being competent to give testimony is worthy of belief, the same was sufficient, in the absence of a requested charged. Following Kitchen v. State, 29 Texas Crim. App., 46. 4. —Same—Sufficiency of the Evidence. Where, upon trial of perjury, the evidence was sufficient to sustain the conviction under a proper charge of the court, there was no reversible error. 5. —Same—Indictment—Specific Negation. Where the indictment charged that the alleged false statement made by the defendant was false and untrue; that the same was deliberately and wilfully made and was deliberately and wilfully false as defendant then and there well knew, etc., the same was a specific negation of defendant’s alleged false statement, and there was no error in overruling a motion to quash the indictment. 6.—Same—Quantum of Evidence Necessary to Convict. Upon trial of perjury, the question was not whether defendant was guilty of the original theft, but whether he swore falsely to a material fact in said trial for theft that a certain witness was at a certain place, and where the evidence showed that he swore falsely, although somewhat circumstantial, by the necessary number of credible witnesses, the conviction was sustained.
73 Tex. Crim. 367Robbins v. State (1914)
The opinion states the case.
73 Tex. Crim. 373Baker v. State (1914)
felling Liquor Without License—Retail Liquor Dealer—Club. Where, upon trial of selling intoxicating liquors in quantities of less than one gallon without license, the defense was that the defendant was the president of a social club, hut the evidence showed that this club did not come within the rules laid down in the ease of Koenig v. State, 33 Texas Grim. Rep., 367, and Adams v. State, 66 Texas Grim. Rep., 220, but is governed by the rule laid down in Trezevant v. State, 66 Texas Grim. Rep., 172, and that the club was not one who acted in good faith, the conviction must be affirmed.
73 Tex. Crim. 375Samper v. State (1914)
The opinion states the case.
73 Tex. Crim. 376Ex Parte Myers (1914)
Murder—Habeas Corpus—Bail—Newly Discovered Evidence. While the alleged newly discovered evidence hardly came within the rule, yet the court below reduced the bail and the same, as so reduced, not being excessive, there was no error. The opinion stales the ease.
73 Tex. Crim. 377Landreth v. State (1914)
The opinion states the case.
73 Tex. Crim. 378Hodges v. State (1914)
The opinion states the case.
73 Tex. Crim. 380Edwards v. State (1914)
1.—Bigamy—Indictment—Grand Jury. Courts will not inquire into the character of testimony nor the quantum of proof before the grand jury, and where the motion to quash the indictment was on the ground that the first wife of defendant was permitted to testify before the grand jury, upon trial of bigamy, the motion was correctly overruled. Following Dockery v. State, 35 Texas Grim. Rep., 487, and other cases. 2. —Same—Indictment. Where, upon trial of bigamy, the defendant was sufficiently informed by the allegations in the indictment of the offense for which he must stand trial, the same was sufficient. Following McAfee v. State, 38 Texas Grim. Rep., 124, and other cases. 3. —Same—Evidence—Marriage License—Proof of Marriage. Upon trial of bigamy, there was no error in introducing in evidence the original marriage license between defendant and his first wife, the same having been properly filed and recorded, and also filed with the papers in the case; besides, the marriage was proved by other evidence. 4. —Same—Evidence—Marriage License—Husband and Wife—Cross-examination. Where, upon trial of bigamy, the State introduced the marriage license and return thereof showing that defendant was married to his alleged second wife, etc., and defendant introduced his said second wife to show that the officials had not performed the said marriage ceremony as alleged, there was no error in permitting the State, bn cross-examination, to bring out all the facts by the said alleged wife and show that she was married by the said official. 5. —Same—Charge of Court—Objections. Under the law as now existing, objections to the charge of court must be made in writing at the time of the trial, and where these objections were not well founded, as being on the weight of the evidence, there was no error. 6. —Same—Requested Charges—Practice. Objections to the charge of the court must be made at the time it is submitted to counsel and complaint can no longer be made for the first time in the motion for new trial. However, where the issues presented in the requested charge as to the divorce from the first wife were not raised by the evidence, there was no error in refusing same.
73 Tex. Crim. 385Douglas v. State (1914)
1. —Rape—Child Witness—Evidence. Where, upon appeal from a conviction of rape, the record disclosed that when the State’s witnesses were questioned in regard to the transaction they possessed sufficient intelligence to correctly and intelligently relate the transactions about which they were interrogated, there was no error. Following Brown v. State, 2 Texas Grim. App., 115, and other cases. Davidson, Judge, dissenting. 2. —Same—Evidence—Declarations of Prosecutrix—Harmless Error. Where, upon trial of rape, the defendant himself admitted that he committed same, and his only defense was that he was a person of weak intellect, the admission of testimony as to the declarations of the prosecutrix some time after the alleged offense was harmless error. Following Tinsley v. State, 52 Texas Grim. Rep., 91. 3. —Same—Insanity—Charge of Court—Presumption—Burden of Proof. Only in those cases where prior to the commission of the offense, the person on trial has been legally adjudged insane, or it is admitted or proven conclusively that the accused had been insane, would the law presume that this condition existed at the time of the commission of the offense, and there was no error in refusing a requested charge which was contrary to this rule, and the burden of proof is upon the defendant. Davidson, Judge, dissenting. 4. —Same—Insanity—Rule Stated. In this State when the State shows that the crime is committed by the defendant beyond a reasonable doubt and he seeks to avoid its consequences by proof that he was not mentally responsible for his act the burden of proof is on him. 5. —Same—Sufficiency of the Evidence—Weak Intellect. Where, upon trial of rape, the defendant admitted the act of intercourse, but claimed that he was of weak intellect from his birth, yet the facts showed that he knew at the time that he was doing wrong, the conviction was sustained. 6. —Same—Indeterminate Sentence Law—Reforming Judgment. Where, upon appeal from a conviction of rape, the record showed that the defendant was entitled to be sentenced under the indeterminate sentence law, the sentence and judgment is so reformed.
73 Tex. Crim. 385Douglass v. State (1914)Affirmed
1. Witnesses (§ 45*)—Competency — Children. A child eight years old, who shows on her voir dire examination that she can relate the transactions as to which she will be interrogated as a witness, and understands the nature of an oath and that she will be punished if she does not tell- the truth, is properly permitted to testify. [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 104—107; Dec. Dig. § 45.*] 2. Witnesses (§ 79*) — Competency—Children—Presumptions. A child over 14 years old is presumptively competent to testify. [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 201-204, 216; Dec. Dig. § 79.*] 3. Criminal Law (§ 1158*)—Witnesses (§ 79*) —Competency—Children. The competency of a child under 14 years of age to testify must be determined by an examination by the court, and its decision will not be disturbed in the absence of an abuse of discretion to the prejudice of the party complaining. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066, 3070, 3071, 3074; Dec. Dig. § 1158;* Witnesses, Cent. Dig. §§ 201-204, 216; Dec. Dig. § 79.*] 4. Rape (§ 48*) — Evidence—Statements. The detailed statements of a cMld eight years old made to the first person she met after she had been raped, were not admissible, unless a part of the res gestae, and, where the interval between the assault and the meeting of such person was. not shown, the proof of the statements could not be justified. [Ed. Note. — Eor other cases, see Rape, Cent. Dig. §§ 67-09; Dec. Dig. § 48.*] 5. Criminal Law (§ 530*) — Confessions — Evidence — Admissibility. A confession reduced to writing and proved by three witnesses is properly admitted in evidence. [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 530.*] 6. Criminal Law (§ 1169*) — Harmless Error —Erroneous Admission of Evidence. Where all the legal testimony, including the confession of accused, showed his guilt beyond question, and the only defense offered was want of sufficient intelligence, error in admitting improper testimony of guilt was not reversible. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. ’§ 1169.*] 7. Criminal Law (§§ 311, 331*) — Insanity — Defense — Burden of Proof. The rule that if accused was, at any time prior to the commission of the offense, insane, the law presumed that the condition existed at the time of the offense, unless the state established beyond a reasonable doubt that at that time he was of sound mind, applies only where, prior to the offense, accused had been legally adjudged insane, or it had been admitted or conclusively proved on a trial had prior to the offense that he (was insane, and in other eases accused has the burden to show his mental incapacity to commit the crime at the time of its commission. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dee. Dig. §§ 311, 331.*] 8. Criminal Law (§ 331*) — Insanity — Defense — Evidence. Where the state shows beyond a reasonable doubt that accused committed crime, and he relies on mental irresponsibility, he has the burden of showing that fact, notwithstanding the presumption of innocence. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.*] 9. Rape (§ 52*) — Evidence—Sufficiency. Evidence held, to sustain a conviction of rape on a child under the age of consent. [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. § 52.*] 10. Rape (§ 64*) — Punishment—Sentence. Where the jury, finding accused guilty of rape, fixed his punishment at 35 years, the sentence, in view of the indeterminate law, must be a sentence of imprisonment for not less than 5 years nor more than 85 years. [Ed. Note. — For other cases, see Rape, Cent. Dig. § 105; Dec. Dig. § 64.*] Davidson, J., dissenting.
73 Tex. Crim. 390Hearne v. State. (1914)
The opinion states the case.
73 Tex. Crim. 407Subia v. State (1914)
The opinion states the case.
73 Tex. Crim. 409Hahn v. State (1914)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence, although circumstantial, was sufficient to sustain a conviction under a proper charge of the court, there was no reversible error. 2. —Same—Witness Under Rule—Discretion of Court. Where, upon trial of burglary, the sheriff of another county from which the case had been transferred on change of venue was upon request of the State excused from the rule, and was permitted thereafter to testify after other witnesses for the State had done so, and there was no abuse of discretion shown, there was no error. 3. —Same—Evidence—Tracks—Making Tracks. Upon trial of burglary, there was no error in admitting testimony as to the tracks found near the place of the alleged burglary, on the ground that the officer forced the defendants to make their tracks on the ground in order to compare them with the tracks already found. Following Pitts v. State, 60 Texas Grim. Rep., 524, and other cases. 4. —Same—Requested Charge—Tracks—Footprints—Singling Out Testimony. Upon trial of burglary where the evidence was circumstantial and there was testimony as to tracks both of horses and men, the court correctly refused to submit a special charge that character of footprints, measurement of tracks, and tracks are not of themselves sufficient to support a conviction for burglary;, there being other evidence tending to connect defendant with the burglary. 5. —Same—Witness Under Rule—Bill of Exceptions. Where defendant complained that the court erred in excusing a State’s witness from the rule, and the bill of exceptions did not show any injury to defendant by reason of the court’s action, other than that some other material witnesses testified before the said State’s witness, or that he testified to anything than the truth, there was no reversible error, there being no abuse of discretion shown. 6. —Same—Rule Stated—Discretion of Court. The separate examination of witnesses at the trial is a matter within the discretion of the court and will not be reviewed on appeal unless there is a manifest abuse thereof; besides, there is an evident distinction between examining trial magistrates and trials before the District Court which allows discretion to the latter in enforcing the rule, the statute being directory,' and not mandatory in trials in the District Court. 7. —Same—Circumstantial Evidence—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence, although circumstantial, was not only amply sufficient to show that the defendant was guilty, but demonstrated that he, and no other persons, committed the offense, there was no error. 8. —Same—Singling Out Testimony—Charge of Court—Tracks. Upon trial of burglary, where the conviction depended on circumstantial evidence, and a number of links made the chain of circumstantial evidence showing that defendants were the guilty parties, there was no error in refusing a special charge that the footprints and the measurement thereof of both horses’ and men’s tracks were not sufficient in themselves to warrant a conviction.
73 Tex. Crim. 419Bullock v. State (1914)
The opinion states the case.
73 Tex. Crim. 428Weatherford v. State (1914)
The opinion states the case.
73 Tex. Crim. 429Smith v. State (1914)
The opinion states the case.
73 Tex. Crim. 430McClary v. State (1914)
1. —Arson—Circumstantial Evidence—Sufficiency of Evidence. Where, upon trial of arson, the evidence, although circumstantial, sustained the conviction, there was no reversible error. 2. —Same—Argument of Counsel. Where, upon tri.al of arson, the State’s counsel used argument which was not based on the evidence in the record, the same was improper, although it might not present reversible error, but prosecuting counsel are again admonished to remain within the record. 3. —Same—Evidence—Irrelevant Testimony.' Where, upon trial of arson, the court admitted testimony that defendant and another were criminally intimate some months before the alleged offense which in no way tended to show that she was guilty of arson, the same was reversible error. 4. —Same—Evidence—Circumstance. Upon trial of arson, where it was not shown that the dress defendant wore after the fire was included in her loss statement, the same should not have been admitted in evidence. 5. —Same—Evidence—Documentary Evidence. While certain documentary evidence was admissible upon trial for arson when properly proven up, but it was not properly connected up, and the sam& was inadmissible. 6. —Same—Newly Discovered Evidence. Where the cause is reversed and remanded upon other grounds, the alleged, newly-discovered evidence need not be discussd.
73 Tex. Crim. 430Mann v. State (1914)
Occupation—Motion for Mew Trial—Affidavits. In the absence of supporting affidavits to the motion for new trial or any evidence accompanying the record, the cause must be affirmed.
73 Tex. Crim. 433Humphrey v. State (1914)
The opinion states the case.
73 Tex. Crim. 436Cresencio v. State (1914)
The opinion states the case.
73 Tex. Crim. 440Weatherford v. State (1914)
The opinion states the case.
73 Tex. Crim. 442Ransom v. State (1914)
1.—Carrying Pistol—Peace Officer—Statutes Construed. Where, upon trial of unlawfully carrying a pistol, the defendant pleaded under article 476, Penal Code, that he was a peace officer, and tlie evidence showed that he was found with a pistol in another county from that in which he had Been appointed deputy and was not in the discharge of any official duty, such plea was no defense. Following Ray v. State, 44 Texas Grim. Rep., 158, and other cases. Overruling Clayton v. State, 21 Texas Grim. App., .343. 3.—Same—Rule Stated—Officer. Where the defendant claimed an appointment as deputy sheriff for Fort Bend County, and the evidence showed that he carried a pistol in Harris County, and it was not shown that he was on official business, he was guilty of a violation of unlawfully carrying a pistol. 3. —Same—Deputy Sheriff—Void Appointment. Where, upon trial of unlawfully carrying a pistol, the defendant claimed to be a deputy sheriff and it appeared from the record on appeal that the sheriff had appointed two deputies in the justice precinct in which defendant lived and held his deputyship, and outside of the county seat, the appointment was void under article 7125, Revised Civil Statutes. 4. —Same—Mistake of Daw-—Good Faith. Where defendant was laboring under a mistake of law, and not a mistake of facts with reference to his rights to carry a pistol, he could not claim good faith. 5. —Same—Evidence—Irrelevant Testimony. Where, upon trial of unlawfullv carrying a pistol, the State was permitted to introduce in evidence an altercation that occurred between defendant and an officer which had no connection with the offense for which defendant was being tried, and he received the punishment over the minimum, the same was reversible error.
73 Tex. Crim. 445McElwee v. State (1914)
1.—Local Option—Argument of Counsel—Charge of Court. Where the court instructed the jury not to consider counsel’s argument to the effect that the jury’s verdict rested on the fate of a State’s witness, etc., which was improper, it may not be sufficient to justify a reversal on that ground. 8.—Same—Agency—Conflicting Charges—Weight of Evidence. Where, upon trial of a violation of the local option law, the court submitted requested charges from both sides on" the question of agency, which were so in conflict with each other and contradictory of each other that the jury were misled by them, the same was reversible error; besides, the court’s main charge was on the weight of the evidence. 3.—Same—V áriance—Purchaser. Where, upon trial of a violation of the local option law, the defendant was charged With selling intoxicating liquors to William Scott and the proof showed, if he sold any, it was to Jahez Scott, the conviction could not he sustained.
73 Tex. Crim. 448Koger v. State (1914)
li—Adultery—Fornication—Insufficiency of the Evidence. Where, upon trial pf adultery and fornication, the evidence was insufficient "to support the conviction, the judgment must be reversed and the cause remanded. '43.—Same—Charge of Court—Circumstantial Evidence. Where, upon trial of adultery and fornication, the court gave a full charge tin circumstantial evidence, there was no error in refusing defendant’s special charge to the effect that suspicious circumstances and familiarity are not sufficient to prove adultery or fornication by habitual carnal intercourse without actual proof of an act of carnal intercourse. 3. —Same—Evidence—Opinion of Witness. Upon trial of adultery and fornication, it was improper to permit a witness to testify that he thought defendant’s talk to him referred to the witness’s talk with defendant’s alleged paramour. 4. —Same—Evidence—Weight of Testimony. Where the objection went simply to the weight of the testimony admitted, and the testimony was otherwise admissible, there was no error. 5. —Same—Double Punishment—Judgment—Information. Where the prosecution on trial of fornication sought to obtain a double punishment on account of a previous conviction for the same offense, the former judgment of conviction was admissible in evidence, but the State should have introduced the information upon which said judgment was based so as to identify the offense. Following Muckenfuss v. State, 55 Texas Grim. Rep., 216. 6.—Same—Argument of Counsel—Plea of Guilty—Confessions. See opinion with reference to argument of counsel on defendant’s plea of guilty and confessions in the former conviction for the same offense.
73 Tex. Crim. 452Hyde v. State (1914)
1. —Burglary—Accomplice—Charge of Court. Where, upon trial of burglary, the State’s witness did not originate the offense, but assented thereto when it was suggested to him, but participated therein no further than to stand idly by, accepting a part of the stolen money, which he promptly returned to the officers and reported the matter to them, and the court submitted the question to the jury, who found that the witness was not an accomplice, there was., no reversible error. Following Holmes v. State, 70 Texas Grim. Rep., 214, 156 S. W. Rep., 1172, and other cases. 2. —Same—Evidence—Detective—Accomplice. Where, upon trial of burglary, the' defense attempted to show that the main State’s witness was an accomplice, there was no error in admitting testimony in rebuttal that said State’s witness was a detective and made daily reports to his employers, and promptly reported the offense to the officers. 3. —Same—Evidence—Letters—Co-defendant. Where defendant was jointly indicted with another for burglary and jointly tried, there was no error in admitting letters in evidence which were alleged to have been written by the co-defendant, the court properly limiting the same to said co-defendant, no injury having been shown. 4. —Same—Charge of Court—Sufficiency of the Evidence. Where, upon trial of burglary, the conviction was sustained by the evidence, under a proper charge of the court, there was no error. [Behearing denied April 8, 1914.—Eeporter.]
73 Tex. Crim. 454Kaufman v. State (1914)
1. —Murder—Evidence—Supporting Testimony. Where, upon trial of murder, a witness for the defendant testified that she knew the deceased, and that shortly before the killing he and others called at her place and deceased told her he was going down to defendant’s saloon and kill him; that as soon as he left she telephoned defendant, and the State sought to impeach this testimony, it was reversible error to reject testimony offered by the defense to show that in half an hour after the killing, the said defendant’s witness detailed the same facts she had testified to on the trial to one of defendant’s witnesses. 2. —Same—Buie Stated—Supporting Testimony. When it is sought to be shown that a witness has testified under corrupt motives or is guilty of fabrication, proof that the witness had made similar statements before the motive alleged existed to make a false statement is admissible, and the witness may be sustained by showing that he made the same statements shortly after the event and prior to the time the alleged motive existed. Following Williams v. State, 24 Texas Grim. App., 637, and other cases. 3. —Same—Evidence—Irrelevant Testimony. Where, upon trial of murder, the defendant did not testify on the trial of the case, it was error to admit testimony that the defendant was the owner of certain disorderly houses, to show what kind of people he collected rent from, as defendant could only be tried for the offense with which he was charged. 4. —Same—Practice in District Court. Upon trial of murder, the court properly used all means in maintaining order in his court and compelled the defendant to desist from abusing the county attorney, and he should have applied the same methods in repressing State’s counsel in the latter’s position to inject improper testimony into the case. 5. —Same—Evidence—Declarations of Third Party. Upon trial of murder, it was error to permit a witness to testify as to what took place between him and defendant’s son prior to the time the witness said that they went to defendant’s father, it not being connected up properly. [Rehearing denied April 8, 1914.—Reporter.]
73 Tex. Crim. 457Cole v. State (1914)
1. —Murder—Witness Under Buie—Discretion of Court—Officer. Where the bill of exceptions stated no fact tending to show that the' court abused his discretion in allowing an officer of the court to call the witnesses for State’s counsel and be present when State’s counsel was talking with them under instructions of the court, and the officer was thereupon called on to testify as to what he saw a't the scene of the homicide, there was no error. Following McMillan v. State, 7 Texas Crim. App., 142, and other cases. 2. —Same—Evidence—Competency of Witness. Where, upon trial of murder, it appeared from the record on appeal that the State’s witness who was ten years old at the time she testified; that she had sufficient intellect to intelligently give her testimony and to relate the transaction as she saw it, there was no error. Following Williams v. State, 12 Texas Crim. App., 127, and other cases. 3. —Same—Manslaughter—Charge of Court—Sufficiency of the Evidence. ■ Where, upon trial of murder, the evidence did not raise the issue of manslaughter, but the court, nevertheless, instructed thereon, and the evidence was-otherwise sufficient to sustain a conviction of murder under a proper charge of the court, there was no reversible error. 4. —Same—Newly Discovered Evidence. Where the alleged newly-discovered evidence would only tend to impeach certain witnesses, there was no error in overruling same. « 5. —Same—Evidence—Material Issue. Where the testimony of certain State’s witnesses was upon a material issue in the case, the fact that one of them talked with the district attorney would not invalidate the same, and there was no error in refusing to strike out the1 testimony. 6. —Same—Beforming Judgment—Sentence—Indeterminate Sentence Law. Under the indeterminate sentence law, the judgment and sentence of the lower court should have been that defendant be confined in the penitentiary for a period of time, not less than five nor more than seventeen years, and it is so reformed in this court.
73 Tex. Crim. 459Hunter v. State (1914)
The opinion states the case.
73 Tex. Crim. 463Muldrew v. State (1914)
1.—Murder—Habeas Corpus—Setting Case for Trial—Practice. Where the District Court had set defendant’s ease for trial and ordered a special venire who were in attendance of court, and the application for writ of habeas corpus was not made until the morning of the day for which the trial was set, and no sufficient reason was shown why defendant had not applied for a writ of habeas corpus sooner, as there was ample time to have done so, there was no error in denying the writ at that time and to proceed with the trial and directing that the application be heard later. Distinguishing Streight v. State, 62 Texas Grim. Rep., 453. 2. —Same—Suspended Sentence—Practice—Statutes Construed. Where, upon trial of murder, sometime the next day after the case had ,gone to trial, but before the indictment was read and defendant had entered his plea of not guilty, he filed a sworn plea seeking to have his sentence suspended in the event he was convicted of manslaughter, the same was clearly filed too late, and the court was not required to submit that plea. Following Roberts v. State, 71 Texas Grim. Rep., 77, and other cases. 3. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction for manslaughter, the evidence, although conflicting, was sufficient to sustain the conviction, there was no error on that ground. 4. —Same—Evidence—Conduct of Defendant. Upon trial of murder, there was no error in admitting in evidence the acts ■and conduct of defendant which led up to the difficulty. 6.—Same—Requested Charges—Practice on Appeal. In the absence of the record pointing out the errors for refusing requested charges, the same can not be considered on appeal. Following Byrd v. State, 69 Texas Grim. Rep., 35, and other cases. 5. —Same—Charge as a Whole—Manslaughter. Where, upon trial of murder and a conviction of manslaughter, the charge rof the court, when considered as a whole, did not instruct the jury to convict ■ defendant of manslaughter, regardless of whether or not he intended to kill ■ deceased or whether he acted in self-defense, but applied the law to the facts in ■a proper way, and in addition thereto, charged the reasonable doubt between murder in each degree and manslaughter and also between manslaughter and aggravated assault and told the jury that if they had a reasonable doubt as to whether the offense, if any, was aggravated assault and battery, to give the defendant the benefit of the doubt and find him guilty of no higher offense than aggravated assault and b.attery, concluding with a charge on reasonable doubt* as applicable to the whole case and fully and completely charging on self-de:fense, there was no reversible error. Following Pratt v. State, 59 Texas Grim. JRep., 635, and other cases. [Behearing denied April 29, 1914.—Beporter.]
73 Tex. Crim. 471Branch v. State (1914)
1. —Vagrancy—Validity of Daw. Subdivision d of article 634, Penal Code, providing that all able-bodied persons who habitually loaf, loiter and idle in any city, etc., and who have no visible means of support, etc., are vagrants, is valid, and a conviction thereunder upon sufficient proof warranted. Following Ex parte Strittmatter, 58 Texas Grim. Rep., 156. 2. —Same—Sufficiency of the Evidence—Case Stated. Where the proof for the State showed that defendant was an able-bodied man and habitually loafed, loitered and idled in the town, without any visible means of support, the conviction was sustained, although he may have had money secreted about his person or on hand with which he paid for some groceries, as he may have secured such money in an unlawful and improper way/ 3. —Same—Bill of Exceptions—Evidence. Upon trial of vagrancy, there was no error in excluding certain proffered testimony that defendant at the time he was charged in the information with the offense of vagrancy had sufficient money in his possession for his immediate use, etc., it having heen shown that he habitually loafed, loitered and idled in the town without regular employment and without any visible means of support, besides, the bill of exception was insufficient. 4. —Same—Statutes Construed—Legal Status—Vagrancy. The object and purpose of the present vagrant statute is that when the status or course of conduct of a person is that of one who habitually loafs, loiters and idles in a town or village the larger portion of his time, without any regular employment and without any visible means of support, he shall be punished because of such status or course of conduct, and it is no defense to show that he may have money secreted about his person, etc. Following Par-shall v. State, 62 Texas Grim. Rep., 177. 5. —Same—Words and Phrases—Definitions. The word “visible” is defined by lexicographers to mean noticeable, open, conspicuous, apparent, obvious, plain, patent, etc. 6. —Same—Jury and Jury Law. Upon trial of vagrancy, where the regular panel of the jury was discharged for having heard the evidence in a former trial, etc., there was no error in the court’s action in ordering the sheriff to summon talesmen from whom defendant was forced to select a jury. 7. —Same—Requested Charges—Practice in Misdemeanor Cases. In the absence of bills of exception to the refusal of requested charges in a misdemeanor case or any showing in the record, and in the absence of such bill of exceptions to the court’s charge at the time and the assignment of specific reasons, the same could not be reviewed on appeal. Following Giles v. State, 66 Texas Grim. Rep., 638, and other cases.
73 Tex. Crim. 475Black v. State (1914)
1. —Burglary—Suspended Sentence—Private Residence. Where defendant was charged with burglary of a private residence at night and convicted thereof, he was not entitled to have the terms of the Suspended Sentence Act submitted to the jury, as this did not apply to that character of offense. 2. —Same—Intent to Steal—Charge of Court. Where, upon trial of burglary of a private residence at night, the defendant claimed that he was so intoxicated that he did not know what he was doing, which the witnesses for the State denied, and the court submitted the question of intent to commit the crime of theft to the jury, who found him guilty, there was no error. 3. —Same—Intent to Steal. The fact that defendant had not in fact stolen anything when he was detected would not entitle him to an acquittal, there being nothing to indicate that the entry was made with any other intent than to steal, there was no error. Following Smith v. State, 51 Texas Grim. Rep., 427, and other cases.
73 Tex. Crim. 477Burnett v. State (1914)
The opinion states the case.
73 Tex. Crim. 480Williams v. State (1914)
The opinion states the case.
73 Tex. Crim. 492Austin v. State (1914)
The opinion states the case.
73 Tex. Crim. 493Miles v. State (1914)
1. —Perjury—Indictment—Precedent. Where, upon trial of perjury, the indictment followed approved precedent, the same was sufficient. Following Johnson v. State, 71 Texas Crim. Rep., 428. 2. —Same—Sufficiency of- the Evidence—Statutes Construed—Proof Necessary—Circumstantial Evidence. Where, upon trial of perjury, the evidence for the State met the requirements of article 806, Code Criminal Procedure, the conviction was sustained, although the same was largely circumstantial. 3. —Same—Evidence—Other Testimony of Same Facts. Upon trial of perjury, the indictment on which defendant was tried and in which trial the alleged perjury occurred was properly introduced in evidence, and there was no error in also introducing the judgment of acquittal in that case, as this inured to defendant’s advantage; besides, the same matter was proved by other testimony without objection. Following Wagner v. State, 53 Texas Crim. Rep., 306. 4. —Same—Charge of Court—Wilfully. Where, upon trial of perjury, the court’s charge sufficiently defined the term “wilfully,” there was no error. Following Johnson v. State, 71 Texas Crim. Rep., 428. 5. —Same—Circumstantial Evidence—Rule Stated. A person may be convicted of perjury on circumstantial evidence, and this doctrine has been expressly and repeatedly declared. Following Plummer v. State, 35 Texas Crim. Rep., 202, and other cases. Overruling Kemp v. State, 28 Texas Crim. App., 519; Waters v. State, 30 Texas Crim. App., 284. 6. —Same—Charge of Court—Practice—Objections to Charge. Where no objection was made in the court below to the charge of the court and no special charge requested, an objection comes too late in a motion for rehearing in this court. 7. —Same—Former Acquittal—Former Jeopardy. Where defendant contended, on appeal from a conviction of perjury, that he was tried on assault with intent to murder and swore therein that he did not commit that offense and was acquitted thereof, and that he can not now be convicted for perjury committed by him in the trial of said cause, contending that he is being tried again for the same offense, but there was no plea of former jeopardy; and, besides, these offenses were not the same, and there is no reversible error on that ground.
73 Tex. Crim. 501Waddle v. State (1914)
The opinion states the case.
73 Tex. Crim. 505Burge v. State (1914)
The opinion states the case.
73 Tex. Crim. 521Smith v. State (1914)
The opinion states the case.
73 Tex. Crim. 521North v. State (1914)
The opinion states the case.
73 Tex. Crim. 525Moran v. State (1914)
The opinion states the case.
73 Tex. Crim. 527Creacy v. State (1914)
The opinion states the case.
73 Tex. Crim. 528Bain v. State (1914)
The opinion states the case.
73 Tex. Crim. 531Marshall v. State (1914)
The opinion states the case.
73 Tex. Crim. 536Guthrie v. State (1914)
The opinion states the case.
73 Tex. Crim. 539Sasser v. State (1914)
The opinion states the case.
73 Tex. Crim. 546Martin v. State (1914)
1. —Rape—Sufficiency of the Evidence—Trial Judges. Where, upon trial of rape, the evidence, though conflicting, supported the conviction, there was no reversible error. See opinion for an expression of confidence in trial judges. 2. —Same—Charge of Court—-Age of Prosecutrix—Mistake of Defendant. Upon trial of rape on a female under the age of consent, there was no error in refusing a requested charge that if defendant was laboring under a mistake as to the age of the prosecutrix and that he honestly believed she was over fifteen years of age at the time to acquit him. Following Robertson v. State, 51 Texas Grim. Rep., 493. 3. -—Same—Charge of Court—Age of Prosecutrix. Where, upon trial of rape on a female under the age of consent, the court instructed the jury that the defendant must have had actual carnal knowledge of said female and that she was under the age of fifteen at the time, and in the event of a reasonable doubt in either case, to acquit, there was no error. 4. —Same—Age of Prosecutrix—Mistake of Fact. Where, upon trial of rape upon a female under the age of consent, the court properly submitted the issue of the age of prosecutrix in a proper charge to the jury, and there was no evidence that would bring defendant within the provisions of section 47, Penal Code, with reference to a mistake of fact which would excuse him, there was no error in refusing to submit a charge upon this question. [Rehearing denied April 15, 1914.—Reporter.]
73 Tex. Crim. 548Cook v. State (1914)
The opinion states the case.
73 Tex. Crim. 549Somers v. State (1914)
1. —Assault to Murder—Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence was sufficient to sustain a conviction, there was no error on this ground. 2. —Same—Misconduct of Jury—Separation—Burden of Proof. Where, upon trial of assault with intent to murder, it was shown on appeal that one of the jurors, without the knowledge of the officer in charge of the jury, intentionally left the jury and went a distance of between three and four blocks to where his horse was tied, mounted his horse, and rode a distance of seven or eight blocks and turned the horse over to the livery stable, and then went in search of the jury traveling the streets of the town upon which were a number of people, one of whom told the juror that they were looking for him and where he could find them and that he went there and joined the jury after some fifteen or thirty minutes, the burden was upon the State to show that nothing improper occurred during the time the juror was separated from the others, and failing to do this, the-same was reversible error. Following Gant v. State, 55 Texas Grim. Rep., 284, and other cases. Prendergast, Presiding Judge, dissenting.
73 Tex. Crim. 558Goldstein v. State (1914)
1. —Receiving Stolen Property—Bills of Exception. Where the bills of exception were so qualified by the court that they presented no error, they need not be reviewed on appeal. 2. —Same—Accomplice—Charge of Court—Circumstantial Evidence. Where, upon trial of receiving and concealing stolen property, the facts and circumstances in evidence raised the issue of accomplice testimony, the court erred in not submitting a requested charge thereon, and especially, in the absence of a charge on circumstantial evidence. 3. —Same—Requested Charges—Bill of Exceptions. In a felony case, it is not necessary to preserve a requested charge by bill of exceptions where the record discloses that the requested charge is presented in ample time and refused by the court, and it is immaterial whether a bill of exceptions with reference to such requested charge is sufficient. 4. —Same—Motion for New Trial. Where the motion for new trial clearly notified the court that defendant’s contention was that the evidence raised the issue of accomplice testimony and that the court erred in submitting that issue to the jury as requested, the same was sufficient for this court- to pass thereon. 5. —Same—Purpose of the Law—Requested Charges—Practice. While the law, requiring courts to submit their charges and attorneys to make their objections thereto before they are read to the jury, etc., and the law does not require special charges to be asked, yet it is better practice to do so, and where the attorneys fully complied with this practice, the matter will be reviewed on appeal.
73 Tex. Crim. 561Forward v. State (1914)
The opinion states the case.
73 Tex. Crim. 565Cunningham v. State (1914)
1.—Keeping Bawdy House—Definition—Sufficiency of the Evidence. Under article 496, Penal Code, a bawdy house is defined as one kept for prostitution or where prostitutes are permitted to resort or reside for the purpose of plying their vocation, and where the evidence sustained the conviction, there was no error. 3.—Same—Requested Charges. Where, upon trial of keeping a bawdy house, the appellant only presented one of her requested charges on appeal, but there was no error in refusing any of them, there was no reversible error. 3. —Same—Evidence—Bill of Exceptions—Other Transactions—Other Testimony. Where, upon trial of keeping a bawdy house, testimony was admitted that defendant about the time alleged kept at her place three cases of beer in an ice box, which the parties at said place were drinking, there was no error; besides, there was much other proof of the same character not objected to by the defendant. Following Hickman v. State, 59 Texas Grim. Hep., 88, and other cases. Besides, the bill of exceptions was insufficient. Wagner v. State, 53 Texas Grim. Rep., 306. 4. —Same—Evidence—Cross-examination—Bill of Exceptions. Where the bill of exceptions was wholly insufficient to authorize a review of the question therein contained, and besides, it appeared from the record that the matter was drawn out directly by defendant’s cross-examination of the witness, and was favorable to defendant, there was no error. 5. —Same—Evidence—Declarations of Third Parties. While the declaration of the officer may have been inadmissible, yet, in the absence of a showing that it was, in the bill of exceptions, the same can not be reviewed. 6. —Same—Evidence—Immaterial Facts—Impeachment. Where, upon trial of keeping a bawdy house, defendant sought to impeach her own witness which the court did not permit, there was no error; besides, it was not material as to which of the women the two different men were in bed with. 7. —Same—Requested Charges—Knowledge of Defendant—Notice. It is not required by the law, in a prosecution for keeping a bawdy house, to charge the jury that the defendant had knowledge of the character of the women and that she knowingly kept said house for the purpose of prostitution, and there was no error in refusing a special charge to that effect, where it could be presumed from the evidence that such a state of facts existed as would put the party upon notice and inquiry; besides, it was Hot incumbent on the court to so amend or supplement the requested charge as to make it legal. Following Perkins v. State, 65 Texas Grim. Rep., 311; Stokeley v. State, 37 Texas Grim. Rep., 638, and other eases.
73 Tex. Crim. 571Brown v. State (1914)
1. —Obstructing Public Bead—Sufficiency of the Evidence. Where, upon trial of unlawfully and wilfully obstructing and injuring, and causing the same to be done, a certain public road, the evidence sustained the conviction, there was no error, under a proper charge of the court. . 2. —Same—Case Stated—Intentional Violation of the Law. Where the evidence showed that the alleged road had been properly constructed by the county authorities, and that defendant against the positive protest of the same undertook to determine for himself that the road was not properly constructed and knowingly, wilfully, and intentionally so reconstructed the same as to violate the law, the conviction was sustained. 3. —Same—Charge of Court—Objections—Misdemeanor. This court is not authorized to consider complaints of the charge of the court and the refusal of requested charges in misdemeanor eases, in the absence of a bill ’ of exceptions taken at the time in the court below. Following Basquez v. State, 56 Texas Crim. Bep., 329, and other cases; besides, the court’s main charge embraced all which was contained in the requested charges as far as it was proper to be submitted. 4. —Same—Evidence—Declarations of Defendant—Wilfully. Where defendant claimed that he had not wilfully obstructed the road, but that he acted solely to protect his premises from back water, there was no error to admit in evidence the declarations of the defendant, before he altered the road and obstructed the same, to the effect that there was no commissioner’s court, etc., and that he would take the matter in his own hands, etc. 5. —Same—Buie Stated—Evidence—Other Transactions. It is competent to prove acts, conduct and declarations of the accused which tend to establish his knowledge or intent, though they in themselves constitute in law distinct crimes and are apparently collateral and foreign to the main issue and may have occurred either prior or subsequent to the act for which the accused is being tried.
73 Tex. Crim. 576Bolden v. State (1914)
The opinion states the case.
73 Tex. Crim. 576Holman v. State (1914)
The opinion states the case.
73 Tex. Crim. 578Havard v. State (1914)
1.—Manslaughter—Continuance—Bill of Exceptions. Where the qualification of defendant’s bill of exceptions showed no error in overruling defendant’s motion for continuance, there was no error. 2. —Same—Jury and Jury Law—Challenge. Where the record on appeal showed that the juror objected to was qualified to try the case, and no sufficient reason is stated why any juror who served on the case was prejudicial to defendant, and the juror objected to was peremptorily challenged, there was no error. 3. —Same—Misconduct of Jury—Discretion of Court. Where the evidence, upon the motion of the misconduct of the jury, is not included in the record and it is questionable whether the affidavits attached to the motion for new trial presented the matter correctly, there was no error in overruling said motion. 4. —Same—Charge of Court—Motion for Mew Trial. Where the record only contained general objections because the court failed to give requested charges, and besides the same were contained in the main charge, there was no error.
73 Tex. Crim. 580Landrum v. State (1914)
Embezzlement—Stock—Proceeds—Definition of Offense. Where, upon trial of embezzlement the evidence showed that the prosecutrix intrusted to defendant her stock in a life insurance company to he used by him for the purchase of stock in another corporation, the fact that defendant had authority to dispose of said prosecutrix’s stock would not render it less embezzlement of the proceeds of the stock if he had the criminal intent at the time he received the same or after he sold the same to convert the proceeds thereof to his own use and benefit, and where the court submitted the issue in a proper charge, there was no reversible error. [Rehearing denied May 13, 1914.—Reporter.]
73 Tex. Crim. 583Ex Parte Barnes (1914)
1. —Habeas Corpus—Pleading—Proof Required. An application for habeas corpus is a mere pleading, and does not prove itself, and where relator introduced no evidence in support of his allegations he must be remanded to custody. Following Ex parte Welburn, 70 Texas Crim. Rep., 464. 2. —Same—Contempt—Witness—Immunity. Where relator was carried before the district judge to be sworn to answer questions before the grand jury, and refused to be sworn, this would be contempt of court and would authorize her confinement in jail, etc., besides, the witness was promised immunity by the district attorney and the district judge from prosecution for incestuous relations between herself and father, and could, therefore, be compelled to testify. Following Ex parte Muncy, 163 S. W. Rep., 29, and other cases. 3. —Same—Practice—Immunity. It is the better practice in such cases that the sanction of immunity and the approval of the district judge should be made a matter of record and recite the facts. [Rehearing denied May 13, 1914.—Reporter.]
73 Tex. Crim. 585Gillespie v. State (1914)
The opinion states the case.
73 Tex. Crim. 609Capshaw v. State (1914)
1.—Seduction—Accomplice—Corroboration—Charge of Court. Where, at the request of the district attorney, upon trial of seduction, the court charged the jury that the corroborating evidence of an accomplice need not be direct and positive and independent of the testimony of the prosecutrix, but that, proof of such facts and circumstances as tend to support her testimony, and which satisfies the jury that she is worthy of credit as to the facts essential to constitute the offense of seduction as hereinafter defined, and it tends to connect the defendant with the commission of the offense charged, will fulfill the requirements of the law, there was no reversible error. Following Beeson v. State, 60 Texas Crim. Bep., 39. Davidson, Judge, dissenting. 3.—Same—Conduct of District Attorney—Improper Questions. Where the bill of exceptions disclosed that the district attorney was aware, at the time he asked defendant the question while on the witness stand whether it was not a fact that he left a certain county because he was indicted for rape, etc., that no such indictment had ever been presented and no arrest had ever been made, the same was reversible error, although the question was answered in the negative. Following Ballard v. State, 71 Texas Crim. Bep., 168, 160 S. W. Bep., 716, and other cases. 3. —Same—Evidence—Cross-examination. Upon trial of seduction, the court should not have permitted the State’s attorney on cross-examination of defendant’s witness to ask whether or not he had left a certain county because he had carried a pistol, and whether he did not so inform another and show him signs of rust on his clothing where he had carried said pistol, all of which was answered in the negative. 4. —Same—Evidence—Irrelevant Testimony—Moral Turpitude. Upon trial of seduction, it was reversible error to permit the State’s witness to testify that the son of thé defendant had told him that he had left a certain county because he had to carry a pistol, etc., after the said son denied that he so carried a pistol and that he so told the witness. The carrying of a pistol does not involve legal or moral turpitude, and was wholly immaterial in the instant case, and could only prejudice the defendant, who was the father of the witness whose testimony was attacked.
73 Tex. Crim. 613Scott v. State (1914)
The opinion states the case.
73 Tex. Crim. 615Irving v. State (1914)
1. —Abandonment—Information—Name of Wife. Where the information failed to name the defendant’s wife, in a prosecution under the statute which provides that if any husband shall wilfully, etc., neglect, etc., to provide for the support, etc., for his wife, the same was insufficient. 2. —Same—Insufficiency of the Evidence. Where under the second count in the information which alleged that defendant abandoned his son, etc., the State failed to prove the name of the son as alleged, etc., the same was insufficient to sustain a conviction for abandonment. 3. —Same—Insufficiency of the Evidence—Temporary Separation Poverty of Husband. Where defendant was charged with unlawfully deserting and abandoning his wife and minor child and the evidence only showed a temporary separation and poverty and inability of the husband to provide for them, the conviction was not sustained, as the statute carries with it the idea of wilfulness, and does not mean that because the man is unfortunate in not having money to support his wife and child that he shall be subjected to a criminal prosecution.
73 Tex. Crim. 619Sugarman v. State (1914)
The opinion states the case.
73 Tex. Crim. 619Swilley v. State (1914)
1.—Murder—Continuance. In the absence of a bill of exceptions, the overruling of a motion for continuance can not be reviewed on appeal. 2. —Same—Evidence—Reproduction of Testimony—Continuance. Testimony of absent witnesses given at a former trial can not be reproduced or put in evidence except in those cases where the witnesses have since died, gone beyond the jurisdiction of the court, or kept away by the connivance of the defendant, and where it was shown that the witnesses were within the jurisdiction of the court, testimony given at the habeas corpus or inquest trial could not be reproduced by either party, nor should the State have been permitted to show in connection with their testimony at a former trial, that defendant had applied for a continuance on account of their absence. 0 3. —Same—Evidence—Defendant as a Witness. Upon trial of murder, it was improper on cross-examination of defendant to ask him whether or not he had testified at the habeas corpus trial, as a failure to do so was not a circumstance against him. Following Brown v. State, 57 Texas Grim. Rep., 269, 122 S. W. Rep., 565. 4. —Same—Charge of Court—Disjunctive. Where, upon trial of murder, the court’s charge could not be construed that it required the jury to believe both of the defendant’s defensive theories to entitle him to an acquittal, when taken as a whole, there was no reversible error, although the use of the disjunctive would have made the charge clearer.
73 Tex. Crim. 622Scott v. State (1914)
1. —Assault to Rape—Force—Charge of Court. Upon trial of assault with intent to rape upon a female under the age of consent, there was no error in the court’s failure to define force in his charge. 2. —Same—Date of Offense—Election by State. Where, upon trial of assault to rape, there were two eases pending against the defendant upon different dates, and the charge of the court submitted both after the State had elected, the same was reversible error. 3. —Same—Aggravated Assault—Charge of Court. Where, upon trial of assault with intent to rape, the court submitted aggravated assault, he should have defined said offense as applicable to the evidence in the ease which presented indecent and improper fondling of prosecutrix.
73 Tex. Crim. 624Lopez v. State (1914)
The opinion states the case.
73 Tex. Crim. 627Phillips v. State (1914)
1.—Shipping Intoxicating Liquor—Label—Baggage. Under article 606, Penal Code, it is a violation of law to ship intoxicating liquors in a trunk without labeling same, although it is cheeked as baggage. 3. —Same—Venue—Connecting Carriers—Reshipment. Where, upon' trial of delivering and causing to he delivered intoxicating liquors to a railroad company for shipment into local option territory without labeling it, the evidence showed that the liquor was delivered to a railway company in Dallas and was received in Upshur County; that the defendant knew at the time that the liquor could not be transported to Upshur County without being redelivered to another railway company in Upshur County, the venue was in either county, and being laid in Upshur County, there was no erjor. Davidson, Judge, dissenting. 8.—Same—Jury and Jury Law—Challenge. A juror is not disqualified by the mere fact that he has heard the evidence on a former trial of the case, but the disqualifying conclusion must involve the guilt or innocence of the accused to the extent that it will influence his verdict, and where the juror swore that he had no fixed- opinion and would try the case according to the law and the evidence, there was no error in overruling the challenge for cause. Following Long v. State, 59 Texas Grim. Rep., 103, and other cases. 4. —Same—Complaint—Information. Where, upon trial of shipping intoxicating liquors without labeling same, the complaint and information were sufficient under the law, there was no error in overruling a motion to quash.
73 Tex. Crim. 633Lafoon v. State (1914)
Rape—Excessive Punishment—Sufficiency of the Evidence. Where, upon trial of rape, the punishment is within the limit fixed by the Legislature, the same is not excessive, and the evidence being sufficient to sustain the conviction, there is no reversible error. [Rehearing denied May 27, 1914.—Reporter.]
73 Tex. Crim. 634Hodges v. State (1913)
The opinion states the case.
73 Tex. Crim. 638Hodges v. State (1913)
The opinion states the case.
73 Tex. Crim. 649General Bonding & Casualty Ins. v. State (1913)
2 of Dallas County. Tried below before the Hon. Barry Miller. Appeal from a judgment final upon a judgment nisi in the sum of $1500. The opinion states the case.