74 Tex. Crim.

Volume 74 — Texas Criminal Reports

123 opinions

74 Tex. Crim. 1Walker v. State (1914)
1. —Arson—Sufficiency of the Evidence. Where, upon trial of arson, the evidence sustained the conviction, under a proper charge of the court, there was no reversible error on that ground. 2. —Same — Conspiracy — Circumstantial Evidence — Reasonable Doubt — Charge of Court. Where, upon trial of arson, the evidence showed that defendant and another acted together in the commission of the offense and the court submitted proper charges on the question of conspiracy, circumstantial evidence, and reasonable doubt, there was no reversible error. 3. —Same—Defensive Theory—Eire by Lightning. Where, upon trial of arson, the defendant claimed that the alleged house was struck hy lightning and was burned thereby, and the court submitted this theory of the defense, there was no error. [Eehearing denied June 10, 1914.—Beporter.]
74 Tex. Crim. 3Taylor v. State (1914)
The opinion states the case.
74 Tex. Crim. 16Willis v. State (1914)
The opinion states the case.
74 Tex. Crim. 25Allen v. State (1914)
Justice Court—County Court—Appeal—Jurisdiction. Under article 87, Code Criminal Procedure, where an appeal from the justice court is taken to the county court and the fine assessed in the latter court does not exceed $100, exclusive of costs, no appeal lies to this court. Following Tison v. State, 35 Texas Crim. Rep., 300.
74 Tex. Crim. 26Mora v. State (1914)
1.—Rape—Sufficiency of the Evidence. Upon trial of rape upon a female under the age of consent where the evidence sustained the conviction, there was no error on that ground. 3.-—Same—Evidence—Confessions—Marriage. Upon trial of rape, there was no error in showing that the prosecutrix was not married to the -defendant, and the objection that the testimony was not sworn to was untenable, as this fact was admitted in open court by the confessions of the defendant. 3. —Same—Charge of Court—Objections. Objections to the charge of the court must be made before it is read to the jury, and it is too late to complain thereof in a motion for new trial. 4. -—Same—Election by State. Where, upon trial of rape, different acts of sexual intercourse were in evidence and the defendant filed a motion in due time to require the State to elect upon which act of intercourse it would rely for a conviction, the motion should have been sustained, and it was reversible error not to do so, especially, where the court charged otherwise. Following Battles v. State, 63 Texas Crim. Rep., 147.
74 Tex. Crim. 28Wyres v. State (1914)
The opinion states the case.
74 Tex. Crim. 35Modwell v. State (1914)
The opinion states the case.
74 Tex. Crim. 36Coleman v. State (1914)
The opinion states the case.
74 Tex. Crim. 37Tores v. State (1914)
The opinion states the case.
74 Tex. Crim. 46Hewitt v. State (1914)
The opinion states the case.
74 Tex. Crim. 52Harris v. State (1914)
1.:—Bigamy—Evidence—Marriage License—Sufficiency of the Evidence. Where, upon trial of bigamy, the marriage license between defendant and his alleged first wife was properly introduced in evidence and defendant was identified as the man described in said license, there was no error in refusing a peremptory instruction to acquit. , 8.—Same—Continuance—Facts Expected to Be Proved. Where the application for continuance did not state what facts were expected to he proven by the absent witness, there was no error, in overruling the motion. 3. —Same—Substitution of Indictment—Agreement. While it is always better practice to pursue the statutory mode'of substituting an indictment, yet when it was done by agreement, objection thereto comes too late after trial, it not being contended that the indictment substituted is not a copy of the original indictment. 4. —Same—Evidence—Character for Chastity of First Wife. Upon trial of bigamy, there was no error in refusing to admit testimony that defendant’s first wife had been guilty of illicit intercourse with other men; besides, the bill of exceptions was insufficient. 5. —Same—Evidence—Bill of Exception. Where the bill of exceptions stated that no such testimony as was objected to was admitted, there was no error. 6. —Same—Argument of Counsel—Bill of Exceptions. Where the argument of counsel is neither a direct nor an indirect reference to defendant’s failure to testify, there was no error; besides, the bill of exceptions was defective. 7. —Same—Argument of Counsel—Credibility of Witness—Convict. The fact that the witness had been convicted of a felony and was' thereafter ' pardoned was admissible as affecting the • credibility of the witness, and the prosecuting officer had a right to comment thereon. 8. —Same—Evidence—Hotel Register. Upon trial of bigamy, there was no error in introducing in evidence a leaf out of the hotel register showing that the defendant had registered with his alleged wife, defendant’s identity having been shown. 9. —Same—Marriage License—Filing. Upon trial of bigamy, the marriage license was properly admitted in evidence and it was not necessary that the same be filed with the papers in the case. 10. —Same—Hewly Discovered Evidence. Where it appeared from the record on appeal that the alleged absent witness from whom the newly discovered evidence was expected to be derived had been in attendance on the trial and had not been used as a witness, there was no error. 11. —Same—Marriage License—Copy. Where a copy of the original marriage license, is contained in the statement of facts and there is nothing to show that it is not a true copy, an application that the original license be sent up to this court must be overruled.
74 Tex. Crim. 56Williams v. State (1914)
The opinion states the case.
74 Tex. Crim. 59Hillis v. State (1914)
1.—Murder—Charge of Court—Trespass—Self-defense. Where, upon trial of murder and a conviction of manslaughter, defendant’s theory of defense was that he had a right to go upon the premises where the difficulty occurred, on the ground that he had rented the land to the deceased and that under the contract he had the right to enter the premises and work out the crop for the mutual benefit of himself and the deceased, and the evidence raised this issue of defense, the court should have submitted this theory and his charge that defendant had no right to forcibly go on the land and premises to work and cultivate the crop, etc., was not applicable to the facts and was reversible error. 2. —Same—Evidence—Intent. Where, upon trial of murder, the State claimed that the defendant was a trespasser at the time he entered the premises where the homicide occurred, and the defendant claimed that under the terms of the contract with deceased he had a right to go there and work the crop, the court should have permitted' him to show that he had told the justice of the peace who had advised him that, under the circumstances, he had a right to go upon the ground and work the crop. 3. —Same—Evidence—Condition of Crop—Contract. Where, upon trial of murder, the defendant claimed that he had a contract with deceased to work the crop in case the deceased failed to do so, he should have been permitted to show the condition of said crop and that his going upon said land was authorized.
74 Tex. Crim. 64Martoni v. State (1914)
The opinion states the case.
74 Tex. Crim. 66Moore v. State (1914)
The opinion states the case.
74 Tex. Crim. 67Anderson v. State (1914)
1. —Judgment Nisi—Bail Bond—Insufficient Appeal Bond—Re-instatement. Where the cause was dismissed at a former day of the term on account of defective appeal bond, and appellant thereafter tendered á sufficient appeal bond within proper time, the appeal is reinstated and heard upon its merits. 2. —Same—Statutory Bond—Words and Phrases. A bail bond which is in substantial compliance with the Code in an appeal from a misdemeanor in the Justice Court to the County Court, is not void because the word “personal” was omitted therefrom in requiring appearance before the County Court. 3. —Same—Personal Appearance Required—Statutes Construed. Since the amendment of 1901, the law now requires that the defendant bind himself in an appeal from the Justice to the County Court to make his appearance before said latter court, and is not conditioned as formerly for the payment of the costs, etc., and the defendant must appear and his attorney can not appear for him. Article 921, Code Criminal Procedure. 4. —Same—Double the Amount of Pine and Costs. Where, in a scire facias proceeding, the defendant, in his amended motion for new trial, filed more than two weeks after the entry of final judgment, alleged that said bond was not in amount of double the fine and costs in the Justice Court, the same was too late; besides, no proof was offered in support thereof, and there was no error on appeal. 5. —Same—Motion for Rehearing—Appellate Court. This is not a trial, but an appellate court, and does not hear evidence in addition to that contained in the record, and such evidence will not be heard on motion for rehearing.
74 Tex. Crim. 70Fields v. State (1914)
The opinion states the case.
74 Tex. Crim. 71Singleton v. State (1914)
1.—Assault to Murder—Evidence—Undisclosed Motive of Party Injured. Where, upon trial of assault. with intent to murder, defendant relied upon self-defense, and it appeared from the evidence that the party injured and those with whom he had gone to any place where they knew or had the least idea that they would come in contact with the defendant, and that defendant knew he would pass said place and that these parties were gathered there, and armed himself for that purpose; and, besides, he did not rely for a defense upon the fact that these parties were together at the place stated, but that they made an actual attack upon him, there was no error in admiting testimony showing that the party injured and those with him were at said place for the purpose of repairing a fence and that the fence had been repaired, as this evidence was not within the rule of law relied on by the defendant about testimony of undisclosed motive. Distinguishing Brumley v. State, 21 Texas Crim. App., 222, and other cases. 0.—Same—Defense of Another—Charge of Court. Where, upon trial of assault to murder, the evidence showed that the difficulty between defendant’s female relative and another took place after defendant had fired at the party alleged to have been injured, and there was no evidence that he did so because he believed that an assault had been made on said female relative or that she was in anywise threatened or in apparent danger, there was no error in the court’s failure to submit the law of defense of another. Following Mitchell v. State, 38 Texas Crim. Rep., 170. 3. —Same—Evidence—Character of Wounds. Where, upon trial' of assault to murder, after a physician had testified that he would not state that the wound on the party alleged to have been assaulted was such a one as might probably result in death, there was no error in permitting him to testify to the character of the wounds with a view of submitting a charge on aggravated and simple assault. 4. —Same—Insulting Conduct to Female Relative—Charge of Court— Words and Phrases. Where, upon trial of assault to murder, it appeared from the record on appeal that the party alleged to have used insulting conduct towards the female relative of defendant was not present on the occasion of the alleged assault and did not participate in any manner therein, any language he may have used could not be attributed to the party injured and those acting with him; besides, the term “wolf” would not be statutory adequate cause, but only a circumstance, which under the charge of the court, the jury was authorized to consider. 5. —Same—Absence of Defendant—Swearing Witness. It being apparent from the record, upon an appeal from a conviction of assault to murder, that the only proceedings had during the absence of defendant upon the trial was the administering of the oath to a State’s witness, and the matter -was not complained of until in the motion for new trial, the same presented no error. 6. —Same—Sufficiency of the Evidence. Where, upon trial of assault to murder, the evidence though conflicting, sustained a conviction under a proper charge of the court, there was no reversible error. c 7. —Same—Evidence—Undisclosed Motive—Bill of Exceptions. Where the ground of objection in the bill of exceptions was that the statement of the State’s witnesses occurred in the absence of the defendant, and was not on the ground of the undisclosed motive of the party injured, this latter objection was, therefore, not brought under review on appeal; besides, the-record showed that defendant knew that the party injured and those with him had gathered at the place where the difficulty occurred and that he had armed himself because of that fact and was expecting trouble, and there was, therefore, no error in having admitted the testimony for the State showing that the party injured and those with him had gathered at said place to repair a fence, and the rule of undisclosed motives does not apply. Distinguishing Bradley v. State, 60 Texas Crim. Rep., 398, and other eases. 8. —Same—Rule Stated—Undisclosed Motive—Self-defense. The rule is that if one unexpectedly meets his adversary, and from his acts and conduct at the time, viewed in the light of previous threats, is led to believe that his life is in danger, such acts and conduct in the presence of defendant can not be explained by facts unknown to him, but where the defendant was informed that he would meet the party injured and those with him and that he armed himself expecting trouble when he passed them on his way to church, and there was no testimony that could be said to be unknown to defendant other than that the parties were at the back of the garden instead of being on the porch, etc., the fact that the State introduced testimony that these parties were there to repair a fence and that their purpose was unknown to defendant would not present reversible error. Distinguishing Darnell v. State, 58 Texas Grim. Rep., 585; Pratt v. State, 53 Texas Crim. Rep., 281, and other eases. Following Bozanno v. State, 60 Texas Crim. Rep., 507. 9.—Same—Threats—Charge of Court—Self-defense. Where, upon trial of assault with intent to murder, the alleged threats which were claimed by defendant to have been made by the assaulted party to do defendant serious bodily injury were either not communicated to the defendant or were not seriously made and that he met the party thereafter, etc., there was no error in the court’s charge on self-defense on the ground of threats, the court having submitted a sufficient charge on threats in his charge on self-defense.
74 Tex. Crim. 90Martoni v. State (1914)
The opinion states the case.
74 Tex. Crim. 94Ward v. State (1914)
The opinion states the case.
74 Tex. Crim. 96Messer v. State (1914)
The opinion states the case.
74 Tex. Crim. 97Barnhill v. State (1914)
The opinion states the case.
74 Tex. Crim. 98Willis v. State (1914)
The opinion states the case.
74 Tex. Crim. 100Sorell v. State (1914)
1. —Rape—Evidence—Memorandum—Independent Recollection. Where, upon trial of rape upon a female under the age of consent, the question of prosecutrix’s age was an issue, and the defense offered testimony of a school record with reference to the age of prosecutrix of which the teacher, defendant’s witness, had no independent recollection, but remembered that the record was made hy her and stated that she did not know whether she had it down correctly, yet, if she would have testified if allowed to do so that she correctly recorded what was tljen told her by the prosecutrix, the evidence would be admissible, otherwise, it would not he, and the bill of exceptions not properly presenting the matter, there was no reversible error. 2. —Same—Argument of Counsel—Requested Charge. While, upon trial of rape, the argument of State’s counsel that influential people and money could beat any case, etc., was highly improper, yet, standing alone, would probably not present reversible error in the absence of a requested charge. 3. —Same—Evidence—Fabricating Testimony. Upon trial of rape, testimony as to a corrupt agreement between the father and others to fabricate testimony for the defense, of which defendant had no notice or knowledge, should not have been admitted in evidence, neither of said parties having been witnesses in the ease, except in so far as to be permitted to exonerate themselves of such agreement. 4. —Same—Rule Stated—Fabricating Testimony. Defendant in a criminal case is not bound by, and it is error to prove the effort of his friends, relatives, or attorneys to induce a witness to leave or suppress or manufacture testimony or compromise the case, unless it be shown that the defendant was connected with or authorized the effort to tamper with the witnesses. Following Estep v. State, 9 Texas Crim. App., 366, and other cases. 5.—Same—Case Stated—Insufficiency of the Evidence—Cross-examination. Where, upon trial of rape upon a female under the age of consent, there was a sharp conflict as to whether defendant had sexual intercourse with the prosecutrix, and if he did, whether or not she was under fifteen years of age, and the manner of cross-examination of witnesses by the State’s counsel and the testimony having a tendency to create an unjust prejudice against the defendant in view of the improper argument used by State’s counsel and in view of the severe punishment assessed, a new trial is granted.
74 Tex. Crim. 108Brown v. State (1914)
Illegal Plumbing—City Charter and Ordinance—Insufficiency of the Evi- , dence. Where, upon trial of unlawfully engaging in and working at and conducting the business of plumbing without license under Article 131, Penal Code, the evidence showed that the special charter of the city in which defendant was prosecuted made no provision for a board of health, city physician, city health officer, city engineer, or city inspector of-plumbing, and it did not appear from the statement of facts that said city had such officers or board of health, or that it had underground sewers and cesspools, the .evidence was insufficient to sustain the conviction; and it is not necessary to pass upon the question as to whether said statute is mandatory or not and applies to said city.
74 Tex. Crim. 110Ballard v. State (1914)
The opinion states the case.
74 Tex. Crim. 112Carey v. State (1914)
The opinion states the case.
74 Tex. Crim. 126Knox v. State (1914)
The opinion states the case.
74 Tex. Crim. 127Caples v. State (1914)
1.—Rape—Assault to Rape—Aggravated Assault—Age of Prosecutrix. Where, upon. trial of rape and assault to rape, the State showed that the prosecutrix was a little over sixteen years of age at the time of the alleged offense, it was error to exclude testimony by the defense that she was at least two years older, such testimony being important under the circumstances of this case. Z.—Same—Charge of Court—Aggravated Assault—Prosecuting Witness. . Where, upon trial of rape and assault to rape and a conviction of aggravated assault, the State introduced testimony that the prosecutrix left the State in company with two men, and the theory of the State was that this was done to get rid of her as a witness against the defendant, and defendant denied any connection with the matter, the court should have submitted a requested charge not to consider this testimony if they found that this was done without the consent or procurement or suggestion of defendant. 3.—Same—Plight—Charge of Court. Where, upon trial of rape, etc., there was evidence of flight of defendant, but the defendant explained same; that he left the State temporarily to attend school and was not aware at the time that an indictment had been returned against him, the court should haVe charged the jury that, if they believed defendant’s evidence, the matter of his flight should not be considered at all, and the court’s charge was too restrictive. 4. '—Same—Evidence—Credibility of Witness—Limiting Testimony. Where defendant’s witnesses had been indicted for another offense with the defendant as accessories in spiriting away the prosecutrix as a witness, and testimony with reference thereto went before the jury, the same should have been properly limited in the court’s charge as requested. 5. —Same—Charge of Court—Aggravated Assault. Where, upon trial of rape, etc., the defendant was convicted of aggravated assault based upon evidence of the prosecutrix that she received bruises, etc., in the assault by defendant upon her, and there was testimony for the defense that she obtained these bruises and hurts after the alleged assault and that defendant had no connection therewith, this phase of the case should have been submitted as requested.
74 Tex. Crim. 133Young v. State (1914)
The opinion states the case.
74 Tex. Crim. 135Lopez v. State (1914)
Burglary—Consent—Evidence—Charge of Court. Where, upon trial of burglary, the issue of consent was sharply raised, testimony offered by the defendant that on the next day after the alleged offense he wrote a post card to prosecutrix in which he explained the matter should have been admitted, in the light of the testimony admitted for the State, and the court should have submitted a proper charge thereon.
74 Tex. Crim. 136Ex Parte Barnett (1914)
local Option—Habeas Corpus—Jurisdiction. Where defendant was convicted of a violation of the local option law and appealed, and after adjournment of court made application for writ of habeas corpus, which was refused, no appeal lies to this court; besides, after conviction, relator had no right to the writ of habeas corpus. Following Magee v. State, 44 Texas Crim. Rep., 384; Ex parte Barfield, 44 S. W. Rep., 1104.
74 Tex. Crim. 137Mills v. State (1914)
The opinion states the case.
74 Tex. Crim. 139James v. State (1914)
1. —Abandonment—Seduction—Jury and Jury Law. Where, upon trial of abandonment after seduction and marriage, the defendant challenged two jurors for cause and they answered that they were prejudiced against the crime of seduction and that they would believe a woman sooner than a man, it being shown that neither of these men served on the jury or that any objectionable juror was forced on defendant, there was no error. Following Grissom v. State, 8 Texas Crim. App., 386, and other cases. 2. —Same—Jury and Jury Law—Regular Panel. Where defendant demanded a full panel of the regular jury before passing on a partial list of the jurors which was overruled by the court, there was no ■reversible error. Following Burfey v. State, 3 Texas Crim. App., 519, and other cases. 3. —Same—Oath of Officer—Summoning Talesmen—Waiver. While the law requires that the officers should be sworn when the court instructs them to summon talesmen, but the defendant failed to make timely objection thereto on this ground, he will be presumed to have waived said right and can not make objection after the jurors have been offered and passed upon. Following Murray.v. State, 21 Texas Crim. App., 466. 4. —Same—Evidence—Birth of Child. Upon trial of abandonment after seduction, etc., there was. no error in admitting evidence that the prosecuting witness had given birth to a child. Following Snodgrass v. State, 36 Texas Crim. Rep., 207. 5. —Same—Corroboration—Prosecuting Witness. Upon trial of abandonment after seduction and marriage, there was no error in refusing a requested charge that the prosecuting witness must be corroborated both as to the act of intercourse and a promise of marriage; besides, the appellant having married prosecutrix after prosecution for seduction, etc., this would be corroboration. Following Williams v. State, 59 Texas Crim. Rep., 347, and other cases. 6. —Same—Accomplice—Charge of Court. Where, upon trial of abandonment after seduction and marriage, the court’s charge on accomplice testimony followed approved precedent, there was no error. Following King v. State, 57 Texas Grim. Rep., 363, and other cases. 7. —Same—Reasonable Doubt—Charge of Court. Where, upon trial of abandonment after seduction and marriage, the court properly submitted the reasonable doubt, the same was sufficient, and it is not necessary to apply reasonable doubt to each paragraph of the court’s charge. 8. —Same—Continuance—Bill of Exceptions—Evidence. There being no motion for continuance in the record and no bill of excep- ' tions to.the introduction of testimony, these matters can not be considered on appeal. 9. —Same—Charge of Court—Requested Charge. Where the requested charge was not submitted until the court had read his main charge to the jury, it came too late; besides, it did not present the correct proposition of law, and, therefore, the court properly refused it. 10. —Same—Statutes Construed—Good Faith—Charge of Court. The law condones defendant’s past offenses if he marries the injured female whom he has seduced and lives with and supports her, and also requires of him to condone all the acts of his wife done prior to the marriage, and if she, after he has led her astray, and before he married her, should again fall, it would not justify him in abandoning her after marriage. 11.—Same—Sufficiency of the Evidence. Where, upon trial of abandonment after seduction and marriage, the evidence sustained the conviction, although there was testimony that defendant did not originally seduce the prosecutrix, the same being too unreasonable and so contrary to all human experience as to justify the jury in not believing the same, there was no error. [Behearing denied June 3, 1914.—Beporter.]
74 Tex. Crim. 144Looper v. State (1914)
The opinion states the case.
74 Tex. Crim. 145Thompson v. State (1914)
The opinion states the case.
74 Tex. Crim. 150Roberts v. State (1914)
1. —Murder—Sufficiency of the Evidence. Where, upon trial of murder, and the conviction thereof, assessing defendant’s punishment at twenty years imprisonment in the penitentiary, the evidence sustained the conviction, there was no error on that ground. 2. —Same—Evidence—Bills of Exception. Where the bills of exception to the admission and exclusion of evidence were clearly defective, the same can not he considered on appeal. 3. —Same—Evidence—Letter—Contradicting Witness. Where, upon trial of murder, the evidence showed that the wife of the deceased, who was the daughter of the defendant, testified in favor of her father under the dictation of her father to certain cruel treatment of her by the deceased, there was no error, for the purpose of impeaching her testimony, in admitting in evidence a letter which she had written to the deceased a few days before the homicide in which she expressed affection for her husband and asked him to come for her and take her back, etc., the court properly limiting said testimony to impeachment. 4. —Same—Evidence—Letter—Envelope—Blood Stains. Upon trial of murder, there was no error in admitting in evidence the envelope in which was contained a letter of the wife of deceased to her husband to show the date of the letter, etc., and the fact that there were some splotches of dry blood on the envelope would not make it inadmissible, as they were not of such .character as to inflame the minds of the jury. Following Cole v. State, 45 Texas Grim. Rep., 225. 5. —Same—Evidence—Res Gestae—-Declarations of Third Parties. Upon trial of murder, there was no error in introducing in evidence the acts and declarations of deceased’s wife immediately after the homicide directed to the defendant and his declarations in reply, as they were all res gestae of the transaction and admissible in evidence. Following Rice v. State, 54 Texas Crim. Rep., 149, and other cases. 6. —Same—Evidence—Impeachment—Limiting Testimony. Where deceased’s wife had testified on trial of- murder that her husband was guilty of various acts of cruelty towards her and that she had voluntarily separated from him and that she had not instituted divorce proceedings against him under the dictation of her father, there was no error in admitting testimony of her declarations that she loved her husband and would go back to him and that her father made her sue for divorce, she having denied such statement and the court properly limiting said testimony to impeachment. 7. —Same—Evidence—Impeaching Witness. Where, upon trial of murder, the defendant sought to show by his daughter, the wife of deceased, that he was protecting her from the cruelty of the deceased, etc., and the said daughter denied that her father induced her to bring a divorce suit against the deceased, there was no error in admitting testimony that the said witness on the day of bringing said suit admitted that her father induced her to bring said divorce suit, etc., but that she would remarry her husband, etc. 8. —Same—Evidence—Husband and Wife—Cross-examination—Animus— Impeachment. Where, upon trial of murder, the defendant introduced his wife who gave material testimony in his behalf as to his claim of self-defense, and testified that she had no unkind feeling against the deceased and denied that she said that if she were her husband she would kill the deceased, there was no error in permitting the State to show that she did make this statement; in order to show the bias and animus of the witness. Following Pope v. State, 65 Texas Grim. Rep., 51. Davidson, Judge, dissenting. 8.—Same—Evidence—Threats. Where, upon trial of murder, the record showed on appeal that the deceased some two or three weeks before the killing sued defendant for a lot of personal property and attempted to sequester the same, and that when the officer approached the defendant with a writ of sequestration, the defendant said it would not be good for the deceased to come to defendant’s place and for the defendant to lay eyes upon him, when the officer told defendant that he might bring him to point out the property, and that defendant must have known that the threat would be communicated to deceased; the deceased having in his possession a pistol at the time of the homicide; besides, the bill of exceptions is defective in not being properly'verified. 10. —Same—Evidence—Papers in Divorce Suit. Where, upon trial of murder, there was a great deal of evidence showing everything in connection with a divorce suit filed by the wife of the 'deceased against the deceased, and that everything admissible in evidence was admitted in reference thereto, and the bill of exceptions failed to point out for what purpose the petition'for divorce was offered in evidence and excluded, there was no reversible error. 11. —Same—Remarks by Judge. Where, upon trial of murder, the trial judge made some trivial remarks to the effect that the parties on both sides were becoming very technical and after-wards withdrew the same, there was no reversible error. 12. —Same—Self-defense—Charge of Court—Weight of Evidence—Objec- tions. Where, upon trial of murder, the court’s charge on self-defense, when taken as a whole, presented everything that was necessary or proper to be presented in a fair way as applicable to the testimony and did not limit defendant’s right of self-defense, the same was sufficient; besides, the objections thereto were too general to be considered. 13. —Same—Verdict—Degree of Offense—Murder—Manslaughter. Where, upon trial of murder under a plain indictment for murder, and nothing else, the court submitted to the jury murder, manslaughter, and self-defense and defined the punishment for both murder and manslaughter, and the jury found defendant guilty and assessed his punishment at twenty years in the penitentiary, an objection that the verdict was fundamentally void because it did not specifically find defendant specifically guilty of murder is untenable, and there is no reversible error. Following Lee v. State, 66 Texas Grim. Rep., 567, and other cases. Davidson, Judge, dissenting. 14. —Same—Rule Stated—Verdict. In construing a verdict, the object is to arrive at the meaning of the jury, and where the jury have clearly expressed an intention to find defendant guilty ag' charged in the indictment and to assess his punishment in terms of the law, the verdict is sufficient, and, in the instant case, where defendant was indicted for murder and the jury found him guilty and assessed his punishment at twenty years in the penitentiary, it is not necessary that the verdict should recite that they found the defendant guilty of murder. Davidson, Judge, dissenting. 15. —Same—Evidence—Letter—Impeachment. Where, upon trial of murder, the defense sought to show that the deceased was most cruel towards his wife, who was the daughter of the defendant, and had threatened to do her great violence for which she brought divorce proceedings against him and had testified to such cruel treatment to her by her deceased husband, etc., there was no error in admitting in evidence a certain letter which the wife of the deceased wrote to him a few days before the homicide in which she contradicted her testimony upon trial of defendant with reference to said cruel treatment by her husband. 16. —Same—Evidence—Impeachment of Witness. Where, upon trial of murder, the wife of the deceased, a daughter of the defendant, testified that her father did not make her sue for a divorce against the deceased and that she brought the suit of her own accord and denied that a few days before the homicide, she declared that her father had made her sue for divorce, there was no error in permitting the State to introduce testimony that she did make such statement. 17. —Same—Evidence—Res Gestae—Declarations of Third Party. Upon trial of murder, there was no error in admitting in evidence the declarations of the wife of deceased made over the body of her dead liusoand to her father immediately after the latter had killed him. This was res gestae. Following Hardin v. State, 57 Texas Grim. Rep., 401. 18. —Same—Charge of Court—Self-defense—Burden of Proof. Where, upon trial of murder, the court’s charge on self-defense did not "in any way place the burden upon defendant to prove anything about his self-defense, but instructed the jury.if they believed from all the evidence beyond a reasonable doubt the certain facts recited therein, then defendant would have no self-defense, the evidence clearly justifying such charge, there was no error. Distinguishing Lyons v. State, 71 Texas Grim.- Rep., 189, and other eases. 19. —Same—Evidence—Husband and Wife—Cross-examination—Impeach- ment. Upon trial of murder, there was no error on cross-examination of defendant’s wife, who had testified for the defendant that she was friendly towards the deceased, to ask her whether she did not say some time before the homicide that if she were defendant, she would kill the deceased, which she denied, whereupon, the State introduced testimony that she did make such statement, and the fact that she was the wife of the defendant made no difference, as the State could show her bias and prejudice the same as in case of any other witness. 20. —Same—Rule Stated—Cross-examination of Wife. Whenever a husbafid or wife is put upon the witness stand to testify in behalf of the other, he or she so testifying should be subjected to as rigid a cross-examination as any other witness, with the exception only that he or she can not be examined in regard to anything against the other about which there had been no testimony on the examination in chief. Following Creamer v. State, 34 Texas, 173, and other cases. And everything which is legitimate for the purpose of testing her knowledge of the facts sworn, to, her bias, her prejudice; in fact, any matter 'that goes legitimately to discredit her is admissible on cross-examination. Following Jones v. State, 38 Texas Crim. Rep., 87, and other cases. Davidson, Judge, dissenting. 81.—Same—Evidence—Impeachment—Limiting Testimony. Where, upon trial of murder, the evidence with reference to the impeachment of defendant’s .wife could not have been used by the jury for anything but impeachment, it was unnecessary to charge thereon; besides, a complaint that the court should have done so, made for the first time in appellant’s motion for rehearing, comes too late.
74 Tex. Crim. 179Johnson v. State (1914)
The opinion states the case.
74 Tex. Crim. 204Ex Parte Crumpton (1914)
The opinion states the case.
74 Tex. Crim. 205Jones v. State (1914)
Tried below before the Hon. W. J. Oxford. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.
74 Tex. Crim. 209Warner v. State (1914)
1.—Simple Assault—Recognizance—Reinstatement. Where the appeal was dismissed for want of a sufficient recognizance, and a sufficient recognizance was thereafter filed, the appeal is reinstated. 8.—Same—Insufficiency of the Evidence—Charge of Court. Where, upon conviction of a simple assault, it appeared on appeal that the court had declined to submit defendant’s theory of innocent intent, the same was error. 3.—Same—Complaint—Information—Date of Offense. Where it appeared on appeal that the affidavit was taken twenty-nine days before the offense was committed and the same error appeared in the information, the same should have been quashed on motion, as this was an impossible date.
74 Tex. Crim. 211Bybee v. State (1914)
The opinion states the case.
74 Tex. Crim. 214Bishop v. State (1914)
The opinion states the case.
74 Tex. Crim. 219Hamilton v. State (1914)
1.—Rape—Continuance—Want of Diligence—Cumulative Testimony. Where the record showed on appeal that some of the alleged absent witnesses were in attendance on court and the testimony of the absent witness was merely cumulative, and there was a want of diligence, there was no error in overruling the motion. 3.—Same—Representation by Counsel. Where one of defendant’s counsel voluntarily assumed the position of judge in the trial of a civil case in another part of the courthouse and was not present when the defendant’s case was called, hut was present before the testimony was adduced in the instant case, and, besides, an able attorney represented the defendant and was present during all of the proceedings', there was no error on this ground. Following Oliver v. State, 70 Texas Crim. Rep., 140. 3. —Same—Different Offenses—Charge of Court. Where defendant was tried for rape committed on the 15th of August at a certain place, and it developed in the trial that he had also been tried for rape committed on May 5th of the same year at a different place, for which he had been previously acquitted, the court properly charged the jury not to consider the transaction which occurred on said 5th of May, upon which defendant had been acquitted, and this was not a charge on the weight of the evidence. Following Morton v. State, '37 Texas Crim. Rep., 131. 4. —Same—Other Acts of Intercourse—Former Acquittal. Where defendant had been acquitted of one act of sexual intercourse upon the same female in the same year, but at a different time and place, and pleaded his former acquittal, and the State in the instant ease proved another distinct and separate act of sexual intercourse after said time and at a different place, and the court properly submitted a charge thereon confining the jury to the offense for which defendant was being tried, and instructing them properly upon the law in the case as applied to the facts, there was no error in refusing a requested charge thereon. 5. —Same—Evidence—Former Acquittal. Where, upon trial of rape, defendant pleaded former acquittal, and contended that testimony as to the transaction for which he had been acquitted of a like offense at a different time and place could not be introduced, there was no error in overruling the objection if said testimony tended to prove that defendant had raped the prosecutrix at the time and place for which he was being prosecuted. 6. —Same—Challenge of Juror—Prejudice. Where a juror answered that he had a prejudice against the law of rape on a female under the age of consent,, he was properly challenged by the State. 7. —Same—Evidence—Character of Witness. Upon trial of rape, there was no error in sustaining an objection as to whether witness would believe the testimony of a woman who was not virtuous as readily as one who is. 8. —Same—Evidence—Age of Prosecutrix. ■ Where, upon trial of rape, upon a female under the age. of consent, testimony was admitted that prosecutrix did not realize the enormity of the crime at the time she submitted to acts of intercourse, there was no reversible error. 9. —Same—Evidence—Contradicting Witness—Rebuttal. Where, upon trial of rape, the defendant introduced several witnesses who testified that they saw him when he came out of a certain house and kept him in view until he had passed a certain branch, etc., there was no error to permit the State to show that it was impossible for defendant’s witnesses to have seen him all the time as he went along the way he did go. 10. —Same—Evidence—Moral Turpitude. Upon trial of rape, there was no error in permitting the State to show that a defendant’s witness had been convicted and sentenced to the penitentiary in 1910 (trial occurring in January, 1914). 11. —Same—Evidence—Contradicting Witness—Impeachment. Where defendant had laid a predicate to impeach prosecutrix as to her statements made to others as to ever having sexual intercourse with defendant, there was no error in permitting the State to introduce testimony that shortly after the alleged rape and near the scene thereof prosecutrix had stated that she had intercourse with defendant, although this was not res gestae. 12. —Same—Plea of Former Acquittal—Charge of Court. As defendant was acquitted of an entirely 'different offense, there was no error in the court’s action in .talcing away from the jury the consideration of defendant’s plea of former acquittal. 13. —Same—Charge of Court—Age of Prosecutrix. Where, upon trial of rape upon a female under the age of consent, the court properly submitted the question of prosecutrix’s age, there was no error, although there was a conflict in the testimony. [Rehearing denied June 26, 1914.—Reporter.]
74 Tex. Crim. 225Tipton v. State (1914)
1.—Occupations—Specialist—Optician—Sufficiency of the Evidence. Where, upon trial of unlawfully engaging in and pursuing the occupation of a specialist in the line of an optician traveling from place to place, etc., without license, the evidence sustained the conviction, there was. no error, under a proper charge of the court. B.—Same—Optician—Charge of Court. Where the court’s charge sufficiently defined the term, “optician,” there was no error. 3. —Same—Evidence—Medicated Glasses. Upon trial of pursuing the occupation of a traveling optician without license, there was no error in admitting testimony that defendant said that the glasses he offered were medicated glasses. 4. —Same—Jury and Jury Law—Challenge—Misspelling. In the absence of objections at the time to the list of jurors on the ground of the misspelling of the name of a juror, the court’s action in overruling a challenge on that ground was proper. 5. —Same—Private Prosecutor. Where the person who employed a private prosecutor was not a witness in the case, that question is immaterial. 6. —Same—Charge of Court—Requested Charges. Where the requested charges which were proper were embraced in the court’s main charge, there was no error in refusing such which did not present correct propositions of law. [Rehearing denied June 26, 1914.—Reporter.]
74 Tex. Crim. 228Smith v. State (1914)
The opinion states the case.
74 Tex. Crim. 229Fisher v. State (1914)
1.—Simple Assault—Aggravated Assault—Charge of Court—Self-defense—Force. Where, upon trial of aggravated assault and .a conviction of simple assault, the evidence showed that the assaulted party first made an assault upon the defendant who testified that he believed the party assaulting was going to kill him, he having drawn a six-shooter upon him some time prior thereto, a charge of the court which required the jury in his charge on self-defense to find that defendant did not use greater force than was reasonably necessary to prevent such assault or otherwise to convict him was reversible error. Following Mars-den v. State, 53 Texas Grim. Rep., 458, and other cases. 8.—Same—Theory of Defense. It is elementary that the defense of an accused, where raised by the evidence, must be submitted even though the other evidence would justify a finding against him. See proper distinction where a charge on greater force is proper. Approving Vinson v. State, 55 Texas Crim. Rep., 490. 3.—Same—Self-defense—Rule Stated. The defendant was entitled to have self-defense submitted from his standpoint, and the charge of the court requiring that he use no more force than was necessary to protect himself from the party assaulted was reversible error.
74 Tex. Crim. 232Smith v. State (1914)
1. —Driving Cattle Across Quarantine Line—Sanitary Commission— Governor. Upon trial of the offense of driving and causing to be driven certain cattle across the quarantine line, defendant insisted that the law which authorized same had not gone into effect and that, therefore, the action of the Governor and the Sanitary Commission in establishing said quarantine line was illegal and void, but the record showed that said line was not to become effective until after the law passed by the Thirty-third Legislature had gone in force, the same was legal and valid. 2. —Same—Delegation of Legislative Power—Constitutional Law. The Act of the Thirty-third Legislature, Chapter 169, authorizing the Sanitary Commission and the Governor to establish, maintain and enforce quarantine lines whenever they deem it necessary for the protection of live stock against splenetic fever, is not a delegation of legislative powers, but is constitutional and valid. 3. —Same—Argument of Counsel. Where the argument of State’s counsel was authorized by the evidence and no charge was requested withdrawing the same from the jury, there was.no reversible error. [Behearing denied June 24, 1914.—Beporter.]
74 Tex. Crim. 234Brown v. State (1914)
The opinion states the case.
74 Tex. Crim. 235De Rossett v. State (1914)
The opinion states the case.
74 Tex. Crim. 242Reed v. State (1914)
1.—Murder—Remarks by Judge—Practice in District Court. Where, upon trial of murder, the court, at the time he administered the oath to the regular panel of the jury, then addressed them orally in a general way as to their duties in the trial of eases, at some length, to all of which defendant’s attorney objected at the time for various reasons, and seven jurors of said panel were afterwards taken on the jury who tried defendant, but the defendant at the time his case was called and after said address by the judge made no voir dire or other examination of the said jurors, and it was not shown that any objectionable juror was forced on him, and the jury was charged in his case by written instructions from the court that they would be governed by the charge then given to them, there was no reversible error. Davidson, Judge, dissenting. 2. —Same—Jury and Jury Law. There is no law that requires a trial judge when a jury is to be empaneled in a felony case, not capital, to summon other jurors when there are more than twelve in the panel to select from. 3. —Same—Evidence—Leading Questions. Where the bill of exceptions, as accepted, recited that the court exercised his discretion in permitting the question, there was no error. Following Carter v. State, 59 Texas Crim. Rep., 73. 4. —Same—Evidence—Declarations of Defendant. Upon trial of murder, there was no error in admitting in evidence the previous threat of defendant that he could whip the damned son-of-a-bitch who killed his dog. 5. —Same—Provoking Difficulty—Mutual Combat—Charge of Court. Where, upon trial of murder, the issues of provoking the difficulty and of mutual combat was raised by the evidence, and also whether defendant intended only to engage in an ordinary fight without intent to kill, and the court submitted these issues according to the opinion of this court in a former appeal, there was no reversible error; besides, the charge was favorable to defendant, Davidson, Judge, dissenting. 6. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction thereof, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. [Rehearing denied June 26, 1914.—Reporter.]
74 Tex. Crim. 256Mason v. State (1914)
1.—Murder—Continuance—Attorney and Client—Undue Haste. Where, upon trial of murder, the case was not called for trial until thirteen days after defendant was served with a copy of the indictment, and twelve days after an attorney had been appointed by the court to represent him, and seven days after his attorney had been employed in the case, the court was not guilty of undue haste in forcing him to trial, and the contention that he had not sufficient time to prepare for trial is untenable, in the absence of a showing that he was thereby deprived of other testimony. 2. —Same—Arraignment—Absence of Counsel". Where defendant’s counsel, upon trial of murder,. had overstayed more than twice the length of time they had been granted by the court, and the officer of the court had failed to locate them, the fact that defendant was arraigned while they were not in the court room, but no further action taken, this, in the absence of any injury shown, presents no error. 3. —Same—Practice—Conferring with Witnesses. Where defendant complained of the action of the court in not taking a recess to permit him to confer with his witnesses; but the record showed that the court gave him ample time to do so, there was no error. 4. —Same—Remarks by Judge. While it is always better practice for the court to rule on evidence without making any additional remarks, yet it is only where such comment is upon the weight of the evidence that such action presents error, and, where this does not appear from the record, there was no error. 5. —Same—Evidence—Bill of Exceptions—Appearance of Defendant. Upon trial of murder, there was no error in introducing in evidence the appearance, acts and conduct of defendant when not under arrest and when under suspicion; besides, the bill of exceptions was defective in not containing the testimony objected to. 6. —Same—Unknown Instrument Used. Where the indictment alleged that deceased was killed with some sharp instrument to the grand jury unknown, there was no- error in permitting the district attorney to testify as to the efforts made • by the grand jury in trying to ascertain the character and kind of instrument used. 7. —Same—Evidence—Admissions. As the testimony which defendant offered was admitted by the prosecution and to go to the jury, there was no error. 8. —Same—Witness—Insanity—Presumption. Where defendant’s witness had been adjudged insane some eighteen months prior to the trial of the instant case and said judgment had never been set aside, it must be presumed in law that he was insane at the time of the trial and that his "testimony was of little value. 9. —Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. A mere reference to the fact that the testimony did not disclose the whereabouts of the defendant during the time of the homicide was not a comment on defendant’s failure to testify by State’s counsel. 10. —Same—Circumstantial Evidence—Charge of Court—Reasonable Doubt. Where, upon trial of murder, the court’s charge on circumstantial evidence followed approved precedent and applied the reasonable doubt to the whole case, there was no error in refusing requested charges on this issue, nor was it necessary to apply the reasonable doubt to each fact in the chain of circumstances. 11. —Same—Requested Charges. Where the requested charges, in so far as they applied to the facts, were fully covered by the court’s main charge, there was no error in refusing same. 12. —Same—Conduct of Counsel—Bill of Exceptions. Where the bill of exceptions as accepted showed that the counsel was very disrespectful to the court, there was no error in the court’s action in ordering the officer to seat counsel, etc. 13. —Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify. In the absence of testimony on the misconduct of the jury, it must he presumed that the court correctly overruled a motion for new trial on this ground, it being shown by affidavits for the State that no allusion to defendant’s failure to testify was niade in the jury room, further than reading the charge of the court that this must not be done, etc. 14. —Same—Confessions—Exculpatory Statements—Arrest—Withdrawal of Testimony. Where, upon trial of murder, the declarations of the defendant, which were of an exculpatory nature, made while under arrest were admitted in evidence, hut afterwards withdrawn by the court and a number of witnesses testified to the same statement made by the defendant when he was not under arrest, there was no reversible error, as in the first place the evidence was admissible, and, in the second place, the testimony was withdrawn; and, besides, the same facts were proven by a number of other witnesses who talked with the defendant prior to his arrest. Davidson, Judge, dissenting on the ground that the testimony was inculpatory. Following Whorton v. State, 69 Texas Grim. Rep, 1; Ferguson v. State, 31 Texas Grim. Rep, 93. Overruling Bailey v. State, 40 Texas Crim. Rep, 150, and other cases.
74 Tex. Crim. 269Arnold v. State (1914)
The opinion states the case.
74 Tex. Crim. 277Henson v. State (1914)
The opinion states the case.
74 Tex. Crim. 284Truett v. State (1914)
1. —Murder—Continuance—Admission by State. Where defendant filed his application for continuance, and the State admitted as true every fact sought to he proven by the defendant by the witnesses set out in his motion for a continuance, and the court instructed the jury that they were hound to take such evidence as true, the defendant could not complain on this ground. 2. —Same—Insanity—Recent Use of Intoxicating Liquors. Under article 41, Penal Code, the recent use of intoxicating liquors is no defense to crime, unless such use has been so continuously for so long a time and so excessively as to produce delirium tremens, etc., and the criminal act takes place while the defendant is suffering from such condition of the mind; and where the admissions by. the State can not be construed that defendant at the time of the homicide was suffering from delirium tremens, but that he .was only temporarily insane, there was no error in the court’s failure to instruct a verdict of not guilty, the court instructing the jury that such testimony could be taken into consideration in mitigation of the punishment. 3. —Same—Manslaughter—Rule Stated—Intoxicating Liquors. When one voluntarily drinks intoxicating liquors and produces in himself an excited state of ipind, this would not be adequate cause under 'the law to reduce the homicide to manslaughter, and there was no error in the court’s failure to submit the law of manslaughter on such testimony. 4. —Same—Legislative Intent—Statutes Construed. The Legislature never contemplated nor intended that the recent use of intoxicating liquors, etc., should reduce an unlawful killing below the grade of murder, and the. mere consolidation of the two degrees of murder and- defining murder as one offense would not require or call for any other construction of article 41, Penal Code, than that heretofore given. 5. —Same—Accidental Shooting—Evidence—negligent Homicide. Where, upon trial of murder, there was nothing to suggest an accidental shooting by the defendant, there was no error in refusing to admit testimony that the pistol with which defendant fired the fatal shot was tricky and easy on the trigger, and there was no error in the court’s failure to submit accidental or negligent homicide. 6. —Same—Self-defense—Charge of Court. Where, upon trial of murder, there was no evidence raising the iqsue of self-defense, there was no error in the court’s failure to charge thereon, neither did the court err in refusing special requested charges embraced in his main charge. [Rehearing denied June 26, 1914.—Reporter.]
74 Tex. Crim. 289Williamson v. State (1914)
1. —Theft—Suspended Sentence—General Reputation. Where, upon trial of theft, the defendant filed his application for suspended sentence in the event he was convicted, he thereby put his general reputation in issue, and where he testified besides, that his reputation for truth, veracity, honesty, etc., was good, there was no error in permitting the State to introduce testimony in rebuttal. 2. —Same—Evidence—Moral Turpitude. Where, upon trial of felony theft, the defendant filed his application for a suspended sentence in the event of conviction, he thereby placed his reputation as a peaceable and law-abiding citizen in issue, and, upon cross-examination, there was no error in permitting witnesses to testify of acts and offenses of defendant which were not felonies and did not involve moral turpitude; however, such offenses which did not involve moral turpitude could not affect his credibility as a witness and should have been properly limited by the court’s charge to the question of suspension of sentence, but no objection having been urged to the court’s charge, which was erroneous in this behalf, before the same was read to the jury, the same can not be reversed thereon under article 743, Code Criminal Procedure. S.—Same—Motion for TTew Trial—Objections to Charge of Court. Since the amendment of article 743, Code Criminal Procedure, an objection to the court’s charge can not be considered on appeal, unless the same was made at the time the court submitted his charge to counsel and before the same was read to the jury, and where the same is not complained of until after the verdict, it can not be reviewed on appeal. [Behearing denied June 10, 1914.—Beporter.]
74 Tex. Crim. 294Roberts v. State (1914)
The opinion states the case.
74 Tex. Crim. 296Magee v. State (1914)
1.—Rape—Age of Prosecutrix—Repetition. Upon trial of rape, there was no error in sustaining an objection to the question as to the witness’s general understanding of prosecutrix’s age, as the same would be but a repetition of testimony already admitted. 8.—Same—Evidence—Cross-examination—Contradicting Witness. Where a defendant’s witness who testified to the age of prosecutrix in cross-examination by the State was shown to have been in jail at the time for bootlegging and could not have, had the conversation as to prosecutrix’s age at the time he said he did, there was no error. 3.—Same—Newly Discovered Evidence. Where the motion for new trial on the ground of newly discovered evidence is not sworn to by any person, and not supported by affidavit of the alleged witness or any other affidavit, there was no error in overruling same. [Rehearing denied June 26, 1914.—Reporter.]
74 Tex. Crim. 298Davis v. State (1914)
1. —Slander of Female—Misdemeanor—Bills of Exception—Charge of Court. In the absence of bills of exception, the question of introducing and rejecting testimony, the charge of the court, and the failure to give special requested charges can not be considered in a misdemeanor case. Following Basquez v. State, 56 Texas Crim. Rep., 329.. 2. —Same—Privileged Communication—Slander. Where the defendant did not claim to have heard the slanderous matter, but he was the originator of the same, the fact that he uttered it upon inquiry of another person would not make it any the less slander. 3. —Same—Statement of Facts—Delay—Antedating. Where there was no contention made in the affidavits that any statement of facts of any character was. presented by appellant to the trial judge for his approval within the time allowed by law, the failure must be charged to him, and such alleged statement could not be antedated and the same can not bo considered on appeal. [Behearihg denied June 36, 1914.—Beporter.]
74 Tex. Crim. 300Dukes v. State (1914)
1. —Murder—Sufficiency of the Evidence—Manslaughter. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no error. 2. —Same—Continuance—Impeachment—Want of Diligence. Where the application for continuance, if there was any, showed a want of diligence and that the alleged absent testimony was of an impeaching character, there was no error in overruling same. 3. —Same—Newly Discovered Evidence—Affidavits. Where the motion for new trial on the ground of newly discovered evidence is not supported by affidavit of the claimed witnesses, but the court heard testimony thereon and overruled the motion, there was no error, in the absence of a statement of facts of the evidence on said motion; none being filed during the term of the trial court; besides, if considered, there was no reversible error. Following Gray v. State, 65 Texas Crim. Rep., 204. [Rehearing denied June 26, 1914.—Reporter.]
74 Tex. Crim. 301Lamb v. State (1914)
1. —Assault to Murder—Self-defense—Charge of Court—Aggravated Assault. Where, upon trial of assault with intent to murder, the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to chárge on aggravated assault, as the only issue in the case was that of self-defense, upon which the court submitted a proper charge. Following Dougherty v. State, 59 Texas Crim. Rep., 471. 2. —Same—Evidence—Defendant as a Witness. Where defendant testified in his own behalf, there was no error in permit ting the State to show that he had been twice indicted for murder; as affeci ing his credibility as a witness, the court properly limiting his testimony to his credibility. 3,—Same—Requested Charge—Sufficiency of the Evidence. Where the requested charges were embraced in the court’s main charge, there was no error in refusing them, and the evidence sustaining the conviction of assault to murder, there was no error. [Behearing denied June 26, 1914.—Beporter.]
74 Tex. Crim. 304Collmorgen v. State (1914)
The opinion states the case.
74 Tex. Crim. 306Zweig v. State (1913)
:i.—Receiving Stolen Property—Indictment—Date of Original Taking. In an indictment for receiving stolen property and bringing the same into this State, it is not necessary to allege the date that the person committing the theft committed the same, or to allege the time and place of the original taking, the indictment being sufficient in other respects. Following Perkins v. State, 45 Texas, 10, and other cases. 2.—Same—Proof of County in Other State—Surplusage. Where, upon trial of receiving stolen property in another State and bringing the same into this State, the indictment alleged that the defendant received the stolen property in the State of Missouri, County of St. Louis, it was not necessary that the proof show that he received the property in that county, as that allegation was not an element oí the offense or in any way descriptive of the same, and the same may be regarded as surplusage; besides, the evidence showed that the goods were stolen in the city of St. Louis, which was usually considered and understood to be a part of St. Louis County. Following Mayo v. State, 7 Texas Crim. App., 342, and other cases. Davidson, Presiding Judge, dissenting. 3. —Same—Severance—Bill of Exceptions. Where the application for severance and the bill of exceptions reserved thereto did not make it manifest that defendant had ever been arrested, that he was willing to be first tried or whether he had been indicted as an accomplice, principal or accessory, or that the granting of the application for severance could not have resulted in a continuance, there was no error in overruling said application. Following Williams v. State, 27 Texas Crim. App., 466, and other cases. 4. —Same—Buie Stated—Presumption. On appeal, the legal presumption is that the court ruled correctly, and in order to have the matter revised on appeal, the bill of exceptions must state matters which would show the error in the ruling of the trial court. Following Ortiz v. State, 68 Texas Grim. Bep., 608. 5. —Same—Election by State—Practice. Where the defendant was indicted in one count for theft in another State and bringing the property .into this State, and in another count for receiving such property and bringing it into this State, there was no error in the court’s refusing to force the State to an election; besides, the latter count alone was submitted. Following Goode v. State, 57 Texas Grim. Bep., 220. 6. —Same—Evidence—Corporation—Oral Testimony. Where there was no effort made to show for what purpose the alleged company was incorporated, but merely the fact that it was an incorporated company, the objection that the incorporation could not be proved by oral testimony is untenable. 7. —Same—Evidence—Identity—Bill of Exceptions. Upon trial of receiving stolen property in another State and bringing the same into this State, where the State’s witness testified that he was able to identify the goods found as the goods stolen from him, which testimony was somewhat weakened on cross-examination, the latter would go to the credit of the witness, and not to the admissibility of the testimony; besides, the bill of exceptions was defective, it not pointing out specifically the supposed objectionable portion of the testimony. Following Ortiz v. State, 68 Texas Grim. Bep., 608, and other cases. 8. -—Same—Evidence—Conspiracy. The statement of all the conspirators during the pending of the conspiracy is admissible in evidence, and where it was shown that the conspiracy to convert the property alleged to have been stolen/ and received by defendant to the use of the defendant and his companions was not completed, the statements of each and all of them were admissible in evidence. Following O’Neal v. State, 14 Texas Grim. App., 582, and other cases. . ' 9. —Same—Buie Stated—Evidence—Conspiracy—Statements of Co-con- spirators. Acts and declarations of one conspirator in furtherance of the common design are admissible against another conspirator pending the conspiracy and until its final termination; including anything that was within the contemplation of the conspiracy, such as dividing the spoils, or any of those matters that may be subsequent to, but included in thé scope of the conspiracy. Following Long v. State, 55 Texas Grim. Bep., 55, and other cases. 10. —Same—Rule Stated—Co-conspirators. What is said and done by any of the conspirators pending the conspiracy and in furtherance of the common design is admissible against the one on trial, though said and done in his absence. Following Wallace v. State, 46 Texas Grim. Rep., 341, and other cases. 11. —Same—Acts of Defendant—Requested Charge—Possession. Upon trial of receiving stolen property in another State and bringing the same into this State, it was not necessary that defendant himself should ship the goods to Texas, if he was the procuring cause to have them so shipped, and the fact that the owner of the goods employed a drayman to carry the alleged stolen goods to the depot from which they were stolen would not take them out of his possession; and there was no error of the court’s refusal of the requested charge. 13.—Same—Charge of Court—Requested Charge—Grand Jury—Testimony. A grand jury is authorized to return an indictment on examining trial testimony, and there was no error in the refusal of a requested charge that the witnesses must be personally present before the grand jury. 13. —Same—Circumstantial Evidence—Charge of Court—Sufficiency of the Evidence. Where, upon trial of receiving stolen property in another State and bringing the same into this State, the evidence was circumstantial, and the court gave a full and fair charge on circumstantial evidence, and the same sustained a conviction, there was no error. Davidson, Presiding Judge, dissenting. 14. —Same—Indictment—Original Taking. Upon trial of receiving stolen property in another State and bringing the same into this State, where the indictment specifically alleged that the offense charged would also have been receiving stolen property by the law of the foreign State, and that the same would be an offense in this State, it was not necessary to allege the facts going to constitute theft against the original taker from whom the property was received. Following Hodges v. State, 22 Texas Grim. App., 415, and other cases. 15. —Same—Indictment—Time and Place. Where the indictment alleged the time and place the defendant received the property in the foreign State, knowing the same to have been stolen, and thereafter, on or about a certain date, brought the same into this State, it was not necessary to name the place in the foreign State where the goods were received; however, where this was alleged, it was not a descriptive allegation, and no proof thereof was necessary, and the allegation was mere surplusage; besides, such proof was sufficiently made. Following Gordon v. State, 2 Texas Grim. App., 154, and other cases, on first proposition, and on latter proposition, Polk v. State, 66 Texas Grim. Rep., 654, and other cases. 16. —Same—Motion for Rehearing—Practice on Appeal. Where appellant, in his second amended motion for rehearing, assigned errors on grounds not assigned in the motion for new trial in the court below nor assigned in the original motion for rehearing in this court, the same must be stricken from the record. [This case did not reach hands of Reporter until June, 1914.—Re-porter.]
74 Tex. Crim. 322Pye v. State (1913)
The opinion states the case.
74 Tex. Crim. 333Ex Parte Broussard (1913)
Tried below before the Hon. W. H. Davidson, who refused to discharge relator on the ground that the city ordinance was unconstitutional. The opinion states the case.
74 Tex. Crim. 350Jones v. State (1913)
The opinion states the case.
74 Tex. Crim. 356Brown v. State (1913)
The opinion states the case.
74 Tex. Crim. 413Serrato v. State (1914)
The opinion states the case.
74 Tex. Crim. 437Cyrus v. State (1914)
1.—Assault to Murder—Evidence—Immaterial Testimony. Where the alleged refused testimony shed no light on the transaction for which defendant was on trial, there was no error. 3.—Same—Self-serving Declarations. Upon trial of assault to murder, there was no error in excluding the self-serving declarations of the defendant to third parties, the same not being res gestae; and the fact that he had been warned when the alleged statements were made would not make it admissible. 3. —Same—Evidence—Contradicting Witness. It is always permissible, either for the State or for the defendant, to show that a witness had made a different statement from that to which he testified on the trial on a material matter. Following Campos v. State, 50 Texas Grim. Eep., 289. 4. —Same—Newly Discovered Evidence. Where the alleged newly discovered testimony would not tend to discredit the testimony of the State or detract therefrom, but rather to strengthen it, there was no error in overruling a motion for new trial on that ground. 5. —Same—Regular Order—Calling Cases. In the absence of a bill of exceptions, the complaint in the motion for new trial that defendant’s case was called out of .its regular order can not be considered on appeal; besides, it was not so called. [Rehearing denied October 14, 1914.—Reporter.]
74 Tex. Crim. 440Crossett v. State (1914)
The opinion states the case.
74 Tex. Crim. 447O'Hara v. State (1914)
The opinion states the case.
74 Tex. Crim. 449Ex Parte Cowden, Jr. (1914)
1. —Stock Law—Constitutional Law. The Act of the Thirty-first Legislature, and subsequent Acts relating to • the live stock law prohibiting horses and cattle, etc., from running at large after an election held, etc., is constitutional. Following Roberson v. State, 42 Texas Crim. Rep., 595. 2. —Same—Repeal—Exempting County. The Act of the Thirty-first Legislature with reference to the stock law was not repealed by any subsequent legislation as to the county of the prosecution. Following Holman v. Cowden and Sullivan, 158 S. W. Rep., 571, and other cases. 3. —Same—Election Contest—Civil Courts—Supreme Court. Contests on the legality of elections is a question peculiarly within the jurisdiction of our civil courts, and the Court of Criminal Appeals will be bound thereby on all questions in connection therewith which has been passed on by the Supreme Court of Texas; besides, the law was not repealed in the • county of the prosecution by the plain letter of the law. 4. —Same—Election—Order of Commissioners Court. Where the order of the Commissioners Court and the proclamation of the county judge of an election on the stock law, when considered as a whole, were in conformity with law, an objection that they were insufficient was untenable. 5. —Same—Habeas Corpus—Void and Voidable. On habeas corpus, it is only those matters which would render the trial and judgment void, and not merely voidable, that can be reviewed, and mere irregularities which do not render the proceedings void will not be considered. ' Following Ex parte Taylor, 63 Texas Crim. Rep., 571, and other eases. 6. —Same—Complaint—Wilful—Knowingly—Words and Phrases. While it is better practice to follow the language of the Code, yet if words of equivalent meaning are used in a complaint, the same is sufficient, and where the complaint used the word, “wilful,” where the statute uses the word, “knowingly,” the complaint was sufficient. 7. —Same—Rule Stated—Words and Phrases. The word, “wilful,” as used in the statute, is synonymous with the word “knowingly.”
74 Tex. Crim. 452Hawkins v. State (1914)
1. —Assault with Intent to Murder—Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence, although conflicting, was sufficient to sustain the conviction, there was no error. 2. —Same—Charge of Court—Objection. Where no objections were filed to the charge of the court except in the motion for new trial, they can not be considered on appeal. 3. —Same—Charge of Court—Suspended Sentence. Where appellant objected to the court’s charge on the question of suspended sentence, and the record showed on appeal that the defendant introduced no evidence authorizing the jury to suspend the sentence, the criticism of the court’s charge.does not present any error; besides, the objection was not made in time. 4.—Same—Newly Discovered Evidence—Impeachment. Where the motion for new trial on the ground of newly discovered evidence Was wholly insufficient, and the alleged testimony was on the question of impeachment, and, besides, there was a want of diligence in procuring same, there was no error in overruling the motion. Following Gray v. State, 65 Texas Crim. Rep., 204.
74 Tex. Crim. 455Greenwood v. State (1914)
The opinion states the case.
74 Tex. Crim. 456Bering v. State (1914)
The opinion states the case.
74 Tex. Crim. 457Ex Parte Winfield (1914)
The opinion states the case.
74 Tex. Crim. 458Gonzales v. State (1914)
74 Tex. Crim. 464Clark v. State (1914)
The opinion states the case.
74 Tex. Crim. 468Gonzales v. State (1914)
The opinion states the case.
74 Tex. Crim. 475Whitehead v. State (1914)
Unlawfully Cutting Timber—Statement of Facts. Where, upon appeal from a misdemeanor, the statement of facts and bills of exceptions were not filed in time in the court below, they must be stricken from the record. Following Durham v. State, 69 Texas Crim. Rep., 71, and other cases.
74 Tex. Crim. 476Ex Parte Muse (1914)
The opinion states the case.
74 Tex. Crim. 479Sinclair v. State (1914)
1. —Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no error. 2. —Same—Distinct Offenses. The offense of .pursuing the occupation of selling intoxicating liquors in local option territory is a separate one from that of making one sale in violation of the local option law. Following Robinson v. State, 66 Texas Crim. Rep., 392. 3. —Same—Continuance. As the witness for whom defendant sought a continuance attended court and testified, there was no error in overruling a motion for continuance.
74 Tex. Crim. 480Pullum v. State (1914)
The opinion states the case.
74 Tex. Crim. 480Hyde v. State (1914)
Aggravated Assault—Indictment—Serious Bodily Injury. Where the indictment for aggravated assault complied with the statute and alleged serious bodily injury as the ground of aggravation, the same was sufficient, and in the absence of a statement of facts, it must be presumed that the same was proven.
74 Tex. Crim. 481Hill v. State (1914)
The opinion states the case.
74 Tex. Crim. 484Raleigh v. State (1914)
1.—Robbery—Evidence—Rebuttal—Common Law Rule. Where, upon trial of robbery, the defendant testified that he did not beat or bruise the party alleged to have been injured, there was no error in permitting the State in rebuttal to show that he did do so; besides, the common law rule as regards testimony in rebuttal is no longer in force in this State, and material testimony may be introduced at any time before the argument is closed if it is necessary to a due administration of justice. 3.—Same—Fames of Witnesses on Indictment. Where the defendant did not make any effort in limine to have the names of the State’s witnesses indorsed on the indictment and did not show any surprise, etc., there was no error on this ground. Following Fehr v. State, 36 Texas Crim. Rep., 93. 3.—Same—Continuance—Want of Diligence—Impeachment. Where the defendant, in his application for continuance, did not show proper diligence and the alleged absent testimony would only tend to impeach a State witness, there was no error in overruling the application and motion for a new trial. 4.—Same—Charge of Court—Objection—Simple Assault. In the absence of written objections to the charge of the court before the same was read to the jury, the same could not be considered on appeal, it not being disclosed that defendant was prevented from having a fair and impartial trial, and there was no error in refusing special charges; besides, there was no error in the court’s charge and his failure to submit simple assault.
74 Tex. Crim. 488Haworth v. State (1914)
1. —Injuring Land of Another—Indictment—Description. Where, upon trial of unlawfully and knowingly "entering upon the land of another without his consent, etc., the indictment failed to describe the said land sufficiently, the same was insufficient on motion to quash. 2. —Same—Insufficiency of the Evidence. Where, upon trial of unlawfully and knowingly entering upon the land of another, etc., the evidence was insufficient to sustain the conviction, the same was reversible error.
74 Tex. Crim. 491Vasquez v. State (1914)
The opinion states the case.
74 Tex. Crim. 495Dickson v. State (1914)
The opinion states the case.
74 Tex. Crim. 498Brown v. State (1914)
Selling Cocaine—Indictment—negative Averments. In an indictment for unlawfully selling, etc., cocaine and morphine, it was not necessary to allege matters of defense which were not a part of the description of the offense. Following Slack v. State, 61 Texas Crim. Rep., 372, and other cases.
74 Tex. Crim. 500Jarrot v. State (1914)
The opinion states the case.
74 Tex. Crim. 501Barnes v. State (1914)
1. —Occupation—Selling Intoxicating Liquors—Local Option—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence was sufficient to sustain the conviction, there was no reversible error on that ground. 2. —Same—Continuance—Sufficient Diligence. Where the State’s witnesses testified to the sale of the intoxicating liquors by the defendant in his restaurant, and the application for continuance showed that the absent witnesses would testify that no whisky was kept in the restaurant or sold by defendant therein, and the issue was whether he did so sell, the continuance should have been granted; the diligence being sufficient. 3. —Same—Jury and Jury Law—Practice. Counsel for defendant should have been permitted a list of the jurors to ask each juror any question which tended to show whether the juror had formed an opinion in the case or had any bias or prejudice against the defendant. 4. —Same—Indictment—Precedent. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient. Following Mizell v. State, 59 Texas Crim. Rep., 226.
74 Tex. Crim. 503Reeves v. State (1914)
1. —Murder—Bill of Exceptions—Statement of Facts. In the absence of a hill of exceptions, the approval of the statement of facts, in which exceptions were not reserved to the testimony objected to, the same could not be considered on appeal; besides, there was no error in admitting this testimony. 2. —Same—Intent to Kill—Aggravated Assault—Charge of Court. Where, upon trial of murder, the evidence raised the issue of want of intent to kill and that the weapon used was not per se a deadly weapon, the court should have charged on aggravated assault, as requested.
74 Tex. Crim. 505Sorrell v. State (1914)
1. —Murder—Degrees of Murder—Change of Law. The abolishing of the degrees of murder under the recent statute does not repeal the law of murder, and where defendant had been tried under the old law and convicted of murder in the second degree, his contention that he could not be again tried for murder in the second degree, but only for manslaughter is untenable. Following Shaw v. State, 71 Texas Crim. Rep., 630, and other cases. 2. —Same—Change of Venue—-Prejudice—Fair and Impartial Trial. Where, upon trial of murder, the defendant filed an application for a change of venue on account of the prejudice against him in the county of the prosecution to the extent that he could not get a fair and impartial trial, and the evidence was sufficient to sustain his application, the venue should have been granted, although the application was contested by the State and the evidence was conflicting. Prendergast, Presiding Judge, dissenting. 3. —Same—Evidence—Dying Declarations. Where, upon trial of murder, a sufficient predicate was laid to admit in evidence the dying declarations of the deceased, there was no error in admitting same; however, the advice of the witness to the deceased that he should have known better than to go out there, etc., should not have been admitted; neither should the declarations of the deceased that he was shot down like John Eoss have been admitted. Prendergast, Presiding Judge, dissenting. 4. —Same—Buie Stated. Where evidence of this character is intentionally and deliberately introduced, the same is reversible error. 5. —Same—Evidence—Judgment Uisi—Flight. Where, upon trial of murder, the defendant’s flight was admissible in evidence, yet a judgment nisi declaring a forfeiture under defendant’s bond was inadmissible for this purpose. Prendergast, Presiding Judge, dissenting. 6. —Same—Evidence—Prior Difficulty. The merits of a prior difficulty between deceased and two of defendant’s younger brothers were not material under defendant’s trial for murder, yet any knowledge or information brought home to the defendant concerning this difficulty was admissible on the issue of malice and manslaughter. 7. —Same—Evidence—Former Conviction. Where, upon trial of murder, the State was permitted to ask defendant if it was not a fact that he had before been convicted upon a former trial in the case now being tried, to which objection was overruled and defendant was required to testify that he had been so convicted, the same was reversible error, and this, although defendant had filed his plea for a suspension of sentence and the jury knew of his former conviction. Prendergast, Presiding Judge, dissenting. 8. —Same—Evidence—Acts of Defendant. Upon trial of murder, testimony that defendant was seen near the fence of deceased armed with a gun and that he was seen going back and forward to this place different times with a gun, it not being connected up sufficiently, was inadmissible. Prendergast, Presiding Judge, dissenting. 9. —Same—Evidence—Acts and Declarations of Defendant. Where, upon trial of murder, it was shown that defendant’s bond was forfeited and that thereafter defendant returned and approached one of his sureties, apologizing to him in not telling him in advance, about his intended trip to Louisiana and that he did not blame him for not again becoming his bondsman, and it was not shown that defendant’s purpose in going to Louisiana was to avoid trial; the same was inadmissible. Prendergast, Presiding Judge, dissenting. 10.—Same—Evidence—Declarations of Defendant. Upon trial of murder, there was no error in admitting in evidence declarations of defendant a short time before the homicide to the effect that while he wanted no trouble with the deceased, yet, if he did have trouble, it would be serious and that he would kill out the entire crowd and the court could do as it liked with him. 11.—Same—Evidence—Threats. Where there was no evidence in the record that defendant had deceased in mind when he remarked that he would use a certain pistol on a gentleman that night, the same was inadmissible. Prendergast, Presiding Judge, dissenting. 12. —Same—Evidence—Conversation Between Defendant and Deceased. Upon trial of murder, there was no error in admitting in evidence parts of a conversation between defendant and deceased just prior to the homicide. 13. —Same—Charge of Court—Justifiable Homicide. Where, upon trial of murder, the evidence did not call for the court’s charge, under the head of justifiable homicide, “Without resorting to other means such as retreat,” etc., the same should not have been given. Prendergast, Presiding Judge, dissenting. 14. —Same—Degrees of Murder—Charge of Court. A .person who has been acquitted of murder in the first degree by being convicted of murder in the second degree can, upon new trial, be convicted of second degree murder on testimony showing first degree homicide, and the charge of the court, therefore, which may have been erroneous on this subject, was harmless error. 15. —Same—Provoking Difficulty—Charge of Court. Where, upon trial of murder, the evidence raised the issue of provoking the difficulty, the court should have submitted this issue to the jury under a proper charge, but it was error to use the' word, “Peacable,” or other language of similar import in submitting the issue that defendant had the right to call on the deceased for an explanation. Prendergast, Presiding Judge, dissenting. 16. —Same—Charge of Court—Weight of Evidence. Where the issue was sufficiently covered by the court’s main charge, it was error to give a requested charge by the State directly pointing out specific acts and thus charge on the weight of the evidence. Following Parnell v. State, 51 Texas Crim. Bep., 620. Prendergast, Presiding Judge, dissenting.
74 Tex. Crim. 524Archer v. State (1914)
1. —Murder—Statement of Facts—Waiver—Want of Diligence. Where defendant and his counsel did not use the diligence required by law to secure a statement of facts, but in fact expressly waived the same, the cause can not be reversed for the want of a statement of facts, as the failure to file one was due to the action of appellant and his counsel. Distinguishing Burden v. State, 70 Texas Crim. Rep., 349, 156 S. W. Rep., 1196. 2. —Same—Circumstantial Evidence—Declarations and Acts of Defendant. Where, upon trial of murder, the case depended entirely upon circumstantial evidence, there was no error in admitting testimony that defendant was seen shortly before the homicide going in the direction where it occurred, saying he was going to get some meat, etc., and that the witness heard talking and some licks passed, etc. Following Noftsinger v. State, 7 Texas Crim. App., 301, and other cases.
74 Tex. Crim. 526State Ex Rel. Looney v. Hamblen (1914)
Convict—Habeas Corpus—Time of Service in Penitentiary—Mandate. Where a convict had only served part of his time in the penitentiary and Was illegally released, but rearrested by the prison authorities, and thereupon sued out a writ of habeas corpus before a District Court asking his release, -whereupon the State of Texas ex rel. its Attorney General, filed in this court a written application praying for a writ of prohibition and that the convict serve out his time of service in the penitentiary. Held, that the application is granted and it is ordered that the convict be returned to the penitentiary and required to serve his full time in accordance with the judgment and mandate of this court.
74 Tex. Crim. 529McGaughey v. State (1914)
The opinion states the case.
74 Tex. Crim. 552Fondren v. State (1914)
Tried below before the Hon. Marvin H. Brown. } Appeal from a conviction of accomplice to abortion; penalty, five years imprisonment in the penitentiary. The opinion states the case.
74 Tex. Crim. 604De Lerosa v. State (1914)
The opinion states the case.
74 Tex. Crim. 607Farris v. State (1914)
1.—Keeping a Disorderly House—Evidence—Husband and Wife. Upon trial of keeping a bawdy house, there was no error in permitting witnesses for the State to testify that defendant’s husband was in the automobile business and would bring men and women to said house to engage in unlawful cohabitation; this would not be the husband giving testimony against the wife. 3.—Same—Rule Stated—Husband and Wife—Misdemeanor—Principals. Where the husband aids the wife in keeping a disorderly or bawdy house, such fact can be shown by other witnesses. In misdemeanors all persons aiding and abetting in the commission of the offense are principals, and their acts and conduct are admissible in evidence. Hollowing Cook v. State, 22 Texas Crim. App., 525, and other eases. 3.—Same—Separation of Jury—Misdemeanor. Where, upon trial of keeping a disorderly house, the jury were permitted under instructions of the court to separate, and there was nothing to show an abuse of discretion or improper conduct on the part of the jury, there was no reversible error. ■4.—Same—Evidence—Declarations of Husband. Where the defendant acted together with her husband in keeping a disorderly or bawdy house, there was no error in permitting the State’s witness to testify that the husband requested her to stay at the house of his wife, telling her she could make lots of money if she would do so; this was not compelling the husband to testify against the wife. Following Cole v. State, 51 Texas Grim. Rep., 89, and other cases. ¡5.—Same—Evidence—Husband and Wife. Upon trial of keeping a disorderly or bawdy house, there was no error in admitting testimony as to the acts of defendant’s husband which would tend to show that he was aiding and assisting her in keeping said disorderly house. 6. —Same—Evidence—Reputation of House. Upon trial of keeping a disorderly house, there was no error in permitting the State’s witness to testify that while she was rooming at said house, men could come there and she would go to other places and have sexual intercourse with them; besides, she testified to having sexual intercourse at said bouse. 7. —Same—Evidence—Defendant’s Knowledge. Upon trial of keeping a disorderly house, there was no error in admitting testimony tending to show that one of defendant’s roomers was a prostitute, and to show that defendant was aware of that fact. 8. —Same—Evidence—Immateriality of Testimony. Upon trial of keeping a disorderly house, there was no error in not permitting the defendant to ask a State’s witness if he had not tried to get an inmate of defendant’s house to go around with him to other places and engage rooms for the purpose of entrapping other persons, there being nothing to show that he had entrapped this inmate, or sought to get her to bring other women to said house. 9. —Same—Argument of Counsel. Where the argument of State’s counsel was in response to that made by .appellant, the same was not reversible error. [Eehearing denied November IT, 1914.—Beporter.]
74 Tex. Crim. 611Noodleman v. State (1914)
The opinion states the case.
74 Tex. Crim. 614Baker v. State (1914)
The opinion states the case.
74 Tex. Crim. 617Rutherford v. State (1914)
1. —Occupation—Traveling Physician—Indictment. Where the word “physician” was written “physicial” in the indictment, and defendant moved to quash the indictment on that ground, but the court permitted the State to change the word so as to read “physician,” the same was reversible error; although had the court not undertaken to have changed the wording, the indictment may have been sufficient. 2. —Same—Insufficiency of the Evidence. Where, upon trial of engaging in the occupation of an itinerant physician without license, the evidence showed conclusively that the defendant resided permanently in the county of the prosecution, the conviction could not be sustained; although he might have been convicted for illegally practicing medicine.
74 Tex. Crim. 619Barnett v. State (1914)
■ 1.—Local Option—"Verdict—Suspension of Sentence. The jury is not authorized to recommend a suspension of sentence where no application was filed by the defendant; such application must be made in writing, sworn to and filed before the trial begins. 3.—Same—Indictment. Where, upon trial of a violation of the local option law, the indictment followed approved precedent, the same was sufficient. 3.—Same—Charge of Court—Objections. In the absence of exceptions taken to the charge of the court before a verdict is rendered, the same can not be considered on motion for new trial.
74 Tex. Crim. 620Guy v. State (1914)
Carrying Pistol—Insufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant’s entire and only connection with the pistol was that it was handed to him and that he fired it three times, the same was not sufficient to convict. Following Fretwell v. State, 52 Texas Crim. Rep., 499, and other cases.
74 Tex. Crim. 621Anderson v. State (1914)
The opinion states the case.
74 Tex. Crim. 623Allen v. State (1914)
The opinion states the case.
74 Tex. Crim. 624Bell v. State (1914)
The opinion states the case.
74 Tex. Crim. 626Johnson v. State (1914)
The opinion states the case.
74 Tex. Crim. 627Johnson v. State (1914)
The opinion states the case.
74 Tex. Crim. 628Eads v. State (1914)
1.—Murder—Communicated Threats—Charge of Court. Where, upon trial of murder, it was an issue in the case as to whether the threats by deceased had been made, but the evidence showed that such threats were communicated to the defendant, it was reversible error for the court to charge requiring the jury to find that such threats had been made as defendant would have the right to act even though the threats had not in fact been made. Following Buckner v. State, 55 Texas Crim. Rep., 511. 3.—Same—Evidence—Reproduction of Testimony. Where, upon trial of murder, the evidence showed that certain of the State’s witnesses were beyond the jurisdiction of the court, but no proof was offered that the statements introduced in evidence were in fact the testimony of said witnesses, the same was error. 3. —Same—Evidence—Husband and Wife—Practice. Upon trial of murder, it was improper to permit the State to call defendant’s wife to the witness stand and force the defendant in the presence of the jury to object to her testifying. 4. —Same—Conduct of State’s Counsel. Upon trial of murder, it was improper to permit State’s counsel to say to the defendant when on the witness stand: that he knew under the law his wife could not testify unless he waived his objection to her testimony. 5. —Same—Argument of Counsel. Upon trial of murder, it was improper for State’s counsel to argue to the jury that defendant had closed the mouth of his wife by refusing to waive objections to her testimony with reference to the threats made by deceased. 6. —Same—Waiver—Husband and Wife. Article 795, Code Criminal Procedure, does not permit the spouse on trial to waive his objections to her testimony. Following Brock v. State, 44 Texas Grim Rep., 335, and other eases. 7. —Same—Evidence—Case Stated. Where, upon trial of murder, defendant testified that his wife, who was the daughter of the deceased, had told him not to go to deceased’s house, that the latter would kill him, and another witness testified that he heard the declarations of the wife, and defendant did not place his wife on the witness stand, it was reversible error to permit the State’s counsel to place said wife on the witness stand and force defendant to object to her testifying. Prendergast, Presiding Judge, dissenting. 8. —Same—Argument of Counsel—Husband and Wife. Where defendant refused to place his wife on the stand, it is not improper for State’s counsel to refer to that fact in his argument, but he could not use the wife so as to convey to the jury the idea that if permitted to testify against the husband she would contradict his testimony, and defendant can not waive this right in behalf of the State. Prendergast, Presiding Judge, dissenting. 9. —Same—Evidence—Irrelevant Testimony. While the State could show friendly relations between the witness and • the defendant to disclose his interest and bias for the defendant, it would be improper to elicit said testimony for the purpose of showing that defendant, who was on trial for murder, was a cow thief, and thus to use it in argument; however, the bill of exceptions is defective. 10. —Same—Argument of Counsel—Former Conviction. Upon trial of murder, it was improper to permit State’s counsel to refer to the former conviction of defendant, even if defendant’s counsel had transgressed the law in this respect in his argument, as his conduct would have to be very pronounced in this respect before State’s counsel would be authorized to refer to a former conviction of defendant; however, defendant’s bills of exception are defective. 11. —Same—Separation of Jury—Practice. Where the bills of exception, as qualified by the court, with reference to the separation of the jury, would not in and of themselves, perhaps, present reversible error, yet such matter should be prevented by the trial court, and. avoid getting them into the record on appeal; as in felony cases, the jury shall 1 not separate, unless by permission of court and consent of counsel and under charge of an officer. 12.—Same—Misconduct of Jury. Where the judgment is reversed and the cause remanded on other grounds and the evidence with reference to the misconduct of the jury is vague and indefinite, the same need not he considered. 13—Same—Argument of Counsel. See opinion in which the court deprecates the- conduct of private prosecutors in using unfair argument to secure a conviction.
74 Tex. Crim. 635Ethridge v. State (1914)
1.—Slander—Sufficiency of the Evidence. Where, upon trial of slandering a female, the evidence sustained the conviction, there was no reversible error. 3.—Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Where, upon trial of slander of a female, a certain witness whe was friendly to the defendant had not been placed upon the witness stand during the trial, to which fact State’s counsel referred, saying that defendant had not seen fit to put him on the stand to deny that he made the slanderous statement and that it had not been denied that defendant made such slanderous statements, this was not an allusion to defendant’s failure to testify. Following Link v. State, 72 Texas Crim. Rep., 82, and other cases. 3.—Same—Requested Charge. Where, upon trial of slandering a female, the special charge requested was not applicable to the facts and pleading in the ease, there was no error in the court’s refusal to submit the same. Following Lawrence v. State, 20 Texas Crim. App., 536, and other cases. 4. —Same—Statement of Facts. Where the attorneys failed to agree upon a statement of facts as to the testimony on trial as well as that heard on the motion for new trial, the duty, therefore, devolved upon the county judge to certify such statement of facts. 5. —Same—Newly Discovered Evidence—Bill of Exceptions. In the absence of a bill of exceptions and a statement of facts filed within term time as to testimony heard on motion for new trial on the question of newly discovered evidence, the same can not be considered on appeal, and it must be presumed that the motion was correctly overruled. 6. —Same—Buie Stated—Statement of Facts—Motion for New Trial. A statement of facts of the evidence heard on the motion for new trial must be filed within term time in the court below, and, unless so filed, it can not be considered on appeal. Following Black v. State, 41 Texas Crim. Bep., 185, and other, eases.
74 Tex. Crim. 639Williams v. State (1914)
1. —Carrying Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence sustained the conviction, there was no error. 2. —Same—Traveler—State Line. Where, upon trial of unlawfully carrying a pistol, defendant claimed that he was a traveler when he carried the pistol, but the facts showed that defendant was not on a real1 journey, although he crossed the State line, the conviction was sustained. Following Hickman v. State, 71 Texas Crim. Rep., 483.
74 Tex. Crim. 640Womack v. State (1914)
1.—Murder—Sufficiency of the - Evidence. Where, upon trial of murder, the evidence sustained the conviction, there "was no error. 3.—Same—Continuance—Bill of Exceptions. In the absence of a bill of exceptions, the overruling of the motion for continuance can not be considered on appeal. 3. —Same—Evidence—Declarations of Defendant. Where a State’s witness had demanded of defendant an explanation of the presence of blood on his shirt, there was no error in admitting in evidence as a part of this transaction that the defendant said he had something to tell the witness, but would not do so because she was common on the town and of bad repute; besides, the bill of exceptions was defective. 4. —Same—Bill of Exceptions. Where the bill of exceptions is made up of defendant’s objections to the introduction of testimony, which were mere objections, and not statements of fact and were not approved by the court, the same can not be considered on appeal. Following Best v. State, 72 Texas Crim. Rep., 201. 5. —Same—Charge of Court—Objections. Where the defendant did not make any objections to the court’s charge before it was read to the jury, -or requested special charges before the same was read to the jury, and there was no bill of exceptions to the refusal of the. court to give alleged requested charges, they can not be considered on appeal. 8.—Same—Circumstantial Evidence—Charge of Court. Where, upon trial of murder, the conviction rested partly on the confessions of the defendant and partly on- circumstantial evidence, there was no error in the court’s failure to charge on circumstantial evidence. 7. —Same—Buie Stated. It is only when the evidence is purely and wholly circumstantial that the court is authorized or required to charge on circumstantial evidence. 8. —-Same—Accomplice Testimony—Charge of Court. Where, upon trial of murder, it was not shown by the evidence that the State’s witness who testified to the confessions of the defendant to witness was an accomplice or an accessory, there was no error in the court’s failure to charge on accomplice testimony. Following Hargrove v. State, 63 Texas Crim. Rep., 143, and other cases. 9. —Same—Alibi—Charge of Court. Where, upon trial of murder, the court’s charge in every way met the question of alibi, no other charge on that subject was required or would have been proper. 10. —Same—Misconduct of Jury—Presumption. Where the court below heard evidence on defendant’s ground of complaint that one of the jurors in the presence of the other gave testimony to them which was not introduced in evidence upon the trial, and overruled the motion, it must be presumed, in the absence of a statement of facts of such evidence upon said motion, that the court correctly overruled the same. 11. —Same—Buie Stated—Statement of Pacts. It is just as essential that the lower court shall pass upon and approve the statement of facts of the testimony introduced upon motion for new trial on account of the misconduct of the juror, as it is that he shall do so as to the statement of facts on the trial of the case.
74 Tex. Crim. 645Walker v. State (1914)
1. —Manslaughter—Suspended Sentence—Motion for Mew Trial. Where the defendant properly filed his plea for a suspended sentence and the court submitted the same to the jury and the jury returned a verdict finding defendant guilty of manslaughter, ignoring the question of a suspension of sentence, and defendant, for the first time, raised this question in his amended motion for new trial, the same came too late, and there was no error in overruling the motion. 2. —Same—Presumption—Practice on Appeal. Where the jury failed to make any recommendation as .to defendant’s plea of suspension of sentence, the presumption is that they refused to recommend same. It is otherwise where the jury can not agree upon the question of suspension of sentence and the verdict itself shows this fact and a proper and timely objection is made before the jury is discharged. Following Mills v. State, 74 Texas Crim. Rep., 137, 168 S. W. Rep., 88, and other cases. 8.—Same—Evidence—Declarations of the Defendant. Upon trial of murder and a conviction of manslaughter, there was no error in admitting in evidence defendant’s declarations made several hours after the killing that he was not going to be arrested, and that all he wanted was a shot at the eonstahle. 4.—Same—Aggravated Assault—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the evi'denee did not raise the issue of aggravated assault, there was no error in the court’s failure to charge thereon; the court submitting a charge upon all the issues raised in the case. Following Hatton v. State, 31 Texas Crim. Rep., 586, and other cases.
74 Tex. Crim. 648Miller v. State (1914)
1.—Theft from Person—Special Venire. Where defendant was charged with theft from the person, and, in another count, with robbery, and defendant asked that a special venire he ordered, whereupon the county attorney dismissed the count charging robbery and placed defendant on trial for theft from the person, there was no error. 3.—Same—Jury and Jury Law—Bill of Exceptions. In the absence of a hill of exceptions to the court’s action in excusing jurors and instructing the sheriff to summon others, the matter can not he reviewed on appeal. 3. —Same—Continuance—Want of Diligence. Where defendant’s application for a continuance showed a want of diligence, there was no error in overruling same. 4. —Same—Evidence—Bill of Exceptions—Moral Turpitude. Where the hill of exceptions did not show that the testimony on the question of moral turpitude was inadmissible, there was no error. 5. —Same—Trial Judge—Bills of Exception. Bills of exception should have been presented to the judge who tried the case for his approval, and not to his successor in office.
74 Tex. Crim. 649Thetford v. State (1914)Appeals dismissed
F. Spencer, Judge. Proceeding by the State of Texas against J. B. Thetford and others for the forfeiture of bail bonds. From several judgments forfeiting the several bonds, the defendants appeal.
74 Tex. Crim. 649Thetford v. State (1914)
1.—Judgment Nisi—Civil Docket—Procedure. Where a judgment final on a forfeiture of bail bond is rendered, the statute provides that such cases shall be placed on the civil docket, and the proceedings shall be governed by the same rule governing other civil actions. 3.—Same—Brief—Practice on Appeal. In an appeal from a judgment final on a judgment nisi, the law requires that appellant must file a brief in the lower court and in this court as in civil actions, and, where this is not done, the appeal will be dismissed upon motion of the State. Following Conrad v. State, 9 Texas Crim. App., 674, and other cases.
74 Tex. Crim. 650Ex Parte Dooley (1914)
Murder—Habeas Corpus—Bail—Proof Hot Evident. Where, upon hearing of habeas corpus, the evidence showed that the issue of manslaughter and self-defense was raised and that the proof of murder upon express malice is not evident, relator was entitled to bail.
74 Tex. Crim. 651Ex Parte Long (1914)
Habeas Corpus—Bail—Justice of the Peace. Where a justice of the peace granted hail in a murder case, and thereafter a district judge reached the conclusion that the case was not bailable, from which relator appealed to this court, and the facts show that the case is bailable, the judgment is reversed, the cause remanded, and bail granted.
74 Tex. Crim. 652Harris v. State (1914)
1. —Murder—Argument of Counsel—Mutual Combat—Abandonment of Difficulty. Where, upon trial of murder, the evidence showed that the parties had a fight and deceased then got up and ran, when defendant followed him and struck him on the head with an axe, when parties interfered and took deceased into a house when defendant again attacked him with an axe and killed him, there was no reversible error in the argument of State’s counsel that if deceased had abandoned the mutual combat, it would be the same as if he had never engaged in the difficulty. 2. —Same—Evidence—Insanity—Argument of Counsel. Where the county attorney, in a moment of petulancy, made a derogatory remark about defendant in questioning the witness and immediately apologized therefor, and the court instructed the jury not to consider -the same, there was no reversible error. 3. —Same—Temporary Insanity—Dse of Intoxicating Liquor. Temporary insanity produced by the use of intoxicating liquors will not reduce an offense from murder to manslaughter, and the court did not err in refusing a requested charge to so instruct the jury. 4. —Same—Charge of Court—Manslaughter. It is not the law that if defendant’s mind was so intoxicated from the recent immoderate use of intoxicating liquors to the extent that he was incapable of cool reflection that that fact should be considered in passing on the issue of manslaughter. 5. —Same—Appointed Counsel—Preparation for Trial. Where the court gave appointed counsel all the time the statute required, and the fact was not made known that more time was desired or a postponement asked, it is too late after verdict to contend that more time should have been given counsel to prepare the case for trial. 6. —Same—Temporary Insanity—Mitigation of Punishment. Where the court charged the jury that if they found defendant temporarily insane from the recent use of intoxicants, to take this into consideration in mitigation of the punishment assessed, this was all the law authorized now, since murder is only of one degree; it was different under the old statute. 7. —Same—Postponement—Practice on Appeal. Where the submission of the ease in this court had already been postponed once at appellant’s request, a further request could not be granted. Davidson, Judge, dissenting. 8. —Same—Death Penalty—Indeterminate Sentence Law. The contention of appellant’s counsel, on motion for rehearing, that the punishment of death in this State does no longer exist for any crime, and that such punishment was repealed by the indeterminate sentence law of the Thirty-third Legislature is untenable, and there was no error in the jury assessing the death penalty for murder. 9. —Same—Indeterminate Sentence Law—Legislative Intent. There is nothing repugnant or inconsistent in the amendment of the indeterminate sentence law' with those laws fixing the death penalty for certain crimes; the only intention of the Legislature being to restore to the defendant the right to have the jury assess the punishment in all cases and give consideration to any mitigating circumstances, and requiring the court to fix the minimum punishment fixed by the statute and the maximum punishment fixed by the jury, so the person convicted may have the benefit of good conduct while confined in the penitentiary. 10—Same—Repeal—Death Penalty. The indeterminate sentence law, as amended, neither expressly nor by implication repeals those provisions of the Code which authorize the jury to assess the death penalty for certain crimes, when they, m their judgment, believe that this punishment should be assessed. 11.—Same—Sufficiency of the Evidence—Death Penalty. Where, upon trial of murder, the evidence sustained the conviction assessing the death penalty, there was no reversible error.
74 Tex. Crim. 658King v. State (1914)
1. —Loitering—Public School—Information—Words and Phrases. Where, upon trial of unlawful loitering upon the public school ground, under the Act of 1905, section 70, chapter 124, the information alleged that the father of the alleged minor caused him to commit the offense, this was equivalent that he instigated him to commit the offense, under article 37, Penal Code, and the information was sufficient. 2. —Same—Sufficiency of the Evidence. Where, upon trial of causing a minor to loiter on the public school ground, the evidence was sufficient to sustain the conviction, there was no reversible error. 3. —Same—Charge of Court—Practice on Appeal. In the absence of an exception to the charge of the court or the failure of the court to give a requested charge "in a misdemeanor case, the same can not be reviewed on appeal; besides, the requested charges were correctly refused. Following Basquez v. State, 56 Texas Crim. Rep., 239. 4. —Same—Loitering—Definition of Offense. The word “loitering,” as used in article 1514, Penal Code, should not he given a narrow restricted meaning, and where the act of loitering came clearly within the mischief sought to he remedied by the statute, the conviction was sustained. 5. —Same—Title of Act—Subject of Legislation—One Offense. Where the Act of the Legislature, section 70, chapter 124, 1905, provided for a complete system of public free schools in Texas, the section making it a misdemeanor for any person to loiter or loaf upon any public school grounds, etc., was embraced in the subject of the title of the Act, and did not contravene section 35 of article 3 of the Constitution of Texas, and defined hut one offense. Following Joliff v. State, 53 Texas Crim. Rep., 61, and other cases. 6. —Same—Information—Pleading. It is never necessary to allege the evidence in the information, and when the allegation was that defendant caused the minor to commit the offense of loitering, etc., it was not necessary to allege the way or manner in which he caused or instigated it to he done. 7. —Same—Knowledge of Defendant—Sufficiency of the Evidence—School Grounds. Where, upon trial of instigating a minor to loiter and loaf upon public school grounds, the evidence showed that the defendant not only knew of the minor’s acts, but caused him to do them, the conviction was sustained, and the statute covers such acts done inside of the school building as well as on the grounds outside of the building.
74 Tex. Crim. 663Gentry v. State (1914)
The opinion states the case.