75 Tex. Crim.

Volume 75 — Texas Criminal Reports

118 opinions

75 Tex. Crim. 1Whitfill v. State (1914)
The opinion states the case.
75 Tex. Crim. 5Brown v. State (1914)
1. —Burglary—Sufficiency of the Evidence. Where, upon .trial of burglary, the evidence, although conflicting, was sufficient to sustain the conviction, there was no error. 2. —Same—Evidence—Opinion of Witness. Where, upon trial of burglary, defendant pleaded an alibi and introduced a witness in support of it, who stated that the distance from where she saw defendant to the alleged burglarized store and the length of time elapsing after he had left the room where she was sitting until the shots were fired, the jury was as capable of judging whether or not sufficient time had elapsed for defendant to have gone to the store and entered it as was the witness, and there was no error in sustaining an objection to propounding this question to the witness, as this was simply her opinion. 3. —Same—Suspended Sentence. Where, upon trial of burglary, the court instructed the jury upon the Suspended Sentence Law, who failed to recommend such sentence, there was no error. [Rehearing denied October 14, 1914.—Reporter.]
75 Tex. Crim. 6Hayter v. State (1914)
1. —Assault to Rape—Sufficiency of the Evidence. Where, upon trial of assault to rape, the evidence was sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error. 2. —Same—Misconduct of Jury—Mob Law. Where the appellant complained that outside influence from a mob affected the jury, and the record showed that the court below heard evidence on that issue and decided against it, it must be presumed in the absence of such evidence that the trial court correctly decided that question. [Rehearing denied October 14, 1914.—Reporter.]
75 Tex. Crim. 8Knowlton and Dominguez v. State (1914)
1. —Assault to Murder—Recognizance—Appeal Bond. Where defendant was convicted of an aggravated assault and filed an appeal bond instead of entering into a recognizance after giving notice of appeal, the appeal must be dismissed. 2. —Same—Entering Into New Recognizance. Where defendants instead of entering into a recognizance to perfect their appeal in a; misdemeanor case filed appeal bonds in place thereof, and the appeal was dismissed in this court, and they then attempted during the third term of the court below, since the conviction, to enter into a' recognizance which the court below permitted, the appellants, in the meantime, having been" at large, the appeal will not be reinstated. Following Johnson v. State, 65 Texas Grim. Rep., 416, and other eases. [Rehearing denied October 14, 1914.—Reporter.]
75 Tex. Crim. 9Catlett v. State (1914)
The opinion states the case.
75 Tex. Crim. 12Vickers v. State (1914)
The opinion states the case.
75 Tex. Crim. 17Schapiro v. State (1914)
The opinion states the case.
75 Tex. Crim. 20Taylor v. State (1914)
1. —Murder—Verdict—Degree of Murder. Where the evidence did not raise the issue of murder in the first degree, and the court submitted only murder upon implied malice, it was not necessary for the jury to state in their verdict the degree of murder of which they found defendant guilty. 2. —Same—Evidence—Cross-examination. Where the State elicited no part of the testimony objected to, hut only insisted that as defendant had propounded 'the interrogatory and elicited from the witness a part of the answer that the latter furnish his answer to the question, there was no error. 3. —Same—Charge of Court—Objections. In the absence of objections to the charge of the court at the proper time, objections thereto raised for the first time in an amended motion for new trial can not be considered on appeal. 4. —Same—¡Newly Discovered Evidence. Where .the alleged newly discovered testimony was of an impeaching character, there was no error in overruling the motion for new trial on that ground. [Rehearing denied October 14, 1914.—Reporter.]
75 Tex. Crim. 22Millner v. State (1914)
Tried below before the Hon. F. G. Chambliss. Appeal from a conviction of murder; penalty, twenty years imprisonment in the penitentiary. The opinion states the case.
75 Tex. Crim. 33Sloan v. State (1914)
The opinion states the case.
75 Tex. Crim. 38Yelton v. State (1914)
1. —Aggravated Assault-—Indictment—Simple Assault—Intent to Injure. It is not necessary to allege in the indictment or information and complaint the intent to injure, and one charged with an aggravated assault may be convicted of a simple assault if the facts justify such finding. Following Davis v. State, 20 Texas Grim. App., 302. 2. —Same—Intent to Injure—Sufficiency of the Evidence. Where upon trial of aggravated assault, the evidence showed that defendant called prosecuting witness to him, touched him on the shoulder and told him to go inside and apologize to defendant’s wife, and prosecuting witness attempted to jerk away from him, -when defendant took hold of his coat and pulled out his poeltetknife which -was already open, and the witness did as he was told, there was no error in the court’s refusal of a special instruction to acquit the defendant if the evidence raised the issue that there was no intent to injure, as this issue was not raised by the evidence. 3. —Same—Assault and Battery—Definition—Statutes Construed. Under article 1013, Penal Code, the use of any dangerous weapon or the semblance thereof in an angry or threatening manner with intent to alarm another and, under circumstances calculated to effect that object comes within the meaning of an assault, and when the evidence showed that defendant’s purpose in pulling an open knife was to alarm prosecuting witness to compel compliance with his command, the question of accident or innocent intent is not involved. Following Bell v. State, 29 Texas, 492. 4. —Same—Charge of Court—Theory of Defense. Where, upon trial of aggravated assault, the court not only submitted a proper charge, but also submitted a special instruction on defendant’s theory of defense, there was no reversible error. 5. —Same—Jury and Jury Law—Bill of Exceptions. Where, upon trial of aggravated assault, counsel for defendant desired to ask each juryman if he was a member of the Masonic Lodge, and if the fact that prosecuting witness was a member of the Masonic Lodge influenced him in arriving at a verdict, and only the questions, and not the answers thereto, are stated in the bill of exceptions, the same can not be reviewed on appeal. 6. —Same—Continuance—Want of Diligence. Where the application for continuance showed a want of diligence and that the testimony contradicting the State’s witness was testified to by defendant himself, there was no error in overruling the motion.
75 Tex. Crim. 43Keith v. State (1914)
The opinion states the case.
75 Tex. Crim. 44Stallings v. State (1914)
1. —Graining—Private Residence—Family—Occupying Residence. ■ The statute makes it an offense to play a game of cards at any place or go into or remain at any place where such game is knowingly played, unless such game is played at a private residence and this is occupied at the time the game is played by a family. It is not the private residence that protects the gaming from being unlawful, but it is the fact that that residence is at the time occupied by a family, not that some family make it their residence, but for the time are away. 2. —Same—Case Stated—Private Residence—Absence of Family. Where the evidence showed that the wife of a man in whose residence the game occurred had gone to her parents, and had been there about two weeks, and that her husband had followed her there, and neither of them nor any constituent of the family occupied their residence at the time of the game, the fact that the defendant had permission to play dominoes there while the family were not occupying their residence did not authorize them to gamble there with cards; and the length of time the family were not occupying the residence is not decisive.
75 Tex. Crim. 47O'Fallin v. State (1914)
1.—Burglary—Affidavit—Newly Discovered Testimony. Where newly discovered testimony was made a ground for new trial, but no affidavits were attacked to the motion for new trial, the same need not be considered on appeal; besides, the alleged testimony could have been procured if it existed. Z.—Same—Sufficiency of the Evidence—Circumstantial Evidence. Where, upon trial of burglary, the verdict was sustained by circumstantial evidence, and that defendant had in his possession some of the alleged stolen property, the conviction was sustained. 3.—Same—Exclusive Possession—Recent Possession. Where the State relies for a conviction upon recent possession of the stolen property only to connect the defendant with the burglary, that possession must be exclusive; but where the conviction did not rest alone upon such evidence, and the facts and circumstances showed that the defendant was the guilty party to the exclusion of a reasonable doubt, the conviction was sustained.
75 Tex. Crim. 50Pope v. State (1914)
1. —False Entry—Definition of Offense—Charge of Court. It takes two essential tilings to constitute the offense of making a false entry in an account book with intent to defraud, and where the court in his charge assumed that the entry was false and did not require the jury to find that it was false, the same was reversible error. 2. —Same—Charge of Court—Burden of Proof. Where, upon trial of making a false entry in an account book with intent to defraud, the court’s charge did not place the burden upon the defendant to prove his defense, there was no error on that ground. Following Over-cash v. State, 67 Texas Grim. Rep., 181, and other cases. 3. —Same—Charge of Court—False Entry—Form of Charge. Where, upon trial of making a false entry, etc., the court’s charge designated the entry as the alleged false entry and instructed the jury in substance that even if it was made by the defendant, yet, if they further believed that the same was the correct and proper entry, and they further believed that it was not made with intent to defraud, etc., to acquit, the same was reversible error. See form of charge suggested. 4. —Same—Correct Bookkeeping. Where defendant was charged with making a false entry of money paid out for freight, etc., and contended that it was correct bookkeeping, but the facts showed that defendant took such money and appropriated the same to his own use, it will not be correct bookkeeping, but was a false entry. 5. —Same—Degrees of Offense—Felony—Misdemeanor. The offense of making a false entry in an account book with intent to defraud is not an offense that has degrees, and although defendant may be convicted of a misdemeanor only, he may be convicted of a felony upon a new trial.
75 Tex. Crim. 54Pope v. State (1914)
The opinion states the case.
75 Tex. Crim. 56Williams v. State (1914)
1. —Carrying Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence was sufficient to sustain a conviction, although conflicting, there was no reversible error. 2. —¡Same—Evidence—Cross-Examination—Res Gestae. Upon trial of unlawfully carrying a pistol, there was no error on cross-examination of defendant’s witnesses to show by circumstances, such as pistol shots, cutting scrapes and drunkenness surrounding the transaction, that the defendant was the party who fired the shots or one of them, although no witness swore who fired the shots or engaged in the cutting scrape; nothing appearing to the contrary that this testimony was not res gestae. 3. —Same—Cross-Examination—Rule Stated. Either side has the right to test the witnesses on cross-examination as to those various matters about which they had testified in the examination in chief, so as to show what means of information and observation they had of the occurrences. 4. —Same—Conduct of State’s Attorney—Harmless Error. While the conduct of the State’s counsel in asking the witnesses *Juestions to which objections had been sustained was improper, yet it was not such error as to require a reversal. 5. —Same—Argument of Counsel-—Requested Charges. In the absence of requested charges reserving the objections of the argument of State’s counsel, which, in some respects, was improper, the same is not reversible error. Following Pierson v. State, 18 Texas Crim. App., 524, and other cases. 6. —Same—Rule Stated—Argument of Counsel. Before this court will reverse a conviction because of argument of State’s counsel, it must appear to us that the remarks are improper and that they are of a material character and such as, under the circumstances, were calculated to injuriously affect the rights of the defendant. Following Tweedle v. State, 29 Texas Crim. App., 586, and other cases. 7. —Same—Argument of Counsel—Bills of Exception. Where the bills of exception complaining of the argument of counsel did not sufficiently set forth the surrounding circumstances in connection with the facts, and the lowest penalty was inflicted, there was no reversible error, in the absence of requested instructions. 8. -—Same—Charge of Court—Misdemeanor. In the absence of bills of exception to the charge of the court in a misdemeanor case and special requested instructions, the same will not be considered on appeal. [Behearing denied November 11, 1914.—Beporter.]
75 Tex. Crim. 59Ross v. State (1914)
The opinion states the case.
75 Tex. Crim. 62Wilson v. State (1914)
The opinion states the case.
75 Tex. Crim. 63Hemphill v. State (1914)
1. —Rape—Indictment—Race Discrimination—Grand Jury—Challenge to Array. Where no proof was offered on the complaint of race discrimination and the record shows that no race discrimination against the colored race was made in selecting the grand and petit jurors, and no request was made by defendant to be brought into court that he might challenge the array of grand jurymen, there was no reversible error; it not being shown that defendant had no opportunity to challenge the array. 2. —Same—Petit Jury—Race Discrimination. Where the defendant moved to quash the panel of special veniremen on the ground that the negro race had been discriminated against, but there was no testimony offered which showed the negro race had been discriminated against because of defendant’s race, who was a negro, the motion was correctly overruled. 3. —Same—Change' of Venue—Contest by the State. Where, upon trial of rape, the defendant applied for a change of venue, which the State contested, the court heard evidence pro and con, and there was no showing that the court improperly overruled the motion, there was no error. 4. —Same—Bills of Exception—Change of Venue—Practice on Appeal. The action of the trial court in refusing a change of venue will not. be revised upon appeal unless the facts upon which the same were based are presented in a bill of exceptions signed, approved, and filed at the term of court at which such order was made, and this rule applies to bills of exception to all matters excepting those relating to questions arising upon the trial of the case. Following Probest v. State, 60 Texas Grim. Rep., 608. • 5.—Same—Requested Charges. Where the requested charges were embraced in the court’s main charge, and one of the requested charges which was given, there was no error in refusing same. 6.—Same—Sufficiency of the Evidence. Where, upon trial of rape, the evidence sustained the conviction under a proper charge of the court to which there was no exception, and no exceptions to the evidence admitted or rejected, the conviction must be sustained.
75 Tex. Crim. 66Coleman v. State (1914)
The opinion states the case.
75 Tex. Crim. 67Nichols v. State (1914)
1.—Keeping Disorderly House—Evidence. Where, upon trial of keeping a disorderly bouse where prostitutes resorted, etc., the State was permitted to introduce testimony that a certain woman in the absence of defendant had told State’s witness that defendant knew her and knew the man with her was not her husband, but required them to register as husband and wife to get the room in the alleged house, the same was hearsay, and reversible error. Prendergast, Presiding Judge, dissenting. 3.—Same—Evidence—Hearsay. Where, upon trial of keeping a disorderly house, the State’s witness testified that a young fellow told him he had been in bed with appellant at said house, the same was hearsay and reversible error. Prendergast, Presiding Judge, dissenting. 3.—Same—Evidence—Reputation of House. Where, upon trial of keeping a disorderly house, a State’s witness testified that he found the defendant in bed with a man in said house, and that she was fined therefor, was admissible, and there was no error. Davidson, Judge, dissenting.
75 Tex. Crim. 70Ex Parte Cummings (1914)
The opinion states the case.
75 Tex. Crim. 71Ex Parte Hancock (1914)
Extradition—Plea of Not Guilty. In an extradition proceeding, relator’s testimony that he is not guilty of the offense charged is not an issue in the. case; this must be tried in the court where the offense is pending. Following' Ex parte Stanley, 25 Texas Crim. App., 372.
75 Tex. Crim. 72Onstott v. State (1914)
1. —False Swearing—Sufficiency of the Evidence. Where, upon trial of false swearing, the evidence was sufficient to support the conviction, there was no error on that ground. 2. —Same—Evidence—Rebuttal. Where, upon trial of false swearing, the defendant on cross-examination of a State’s witness injected the issue of another transaction into the case, there was no error in admitting evidence in rebuttal. 3. —Same—Suspended Sentence—Charge of Court. Where defendant filed a plea for the suspension of sentence and the court failed to instruct the jury in regard thereto, but the district attorney contended that the jury could not suspend sentence because it had not been shown that the general reputation-of defendant was good in the community in which he lived, and the court refused to submit an instruction withdrawing the same, the same was reversible error. 4. —Same—Rule Stated—Previous Reputation. Where the accused filed an application for a suspension of sentence, there is but one prerequisite finding that the jury must make, and that is, that he has not theretofore been convicted of a felony in this or any other State, before they are debarred the privilege of recommending a suspension of sentence, if they see proper to do so; although general previous reputation is admissible to assist the jury in determining whether they will suspend the sentence.
75 Tex. Crim. 75Lamb v. State (1914)
1. —Murder—Verdict by Lot—Taking Average—Rule Stated. If jurors take the average as a means of securing an expression as to their views in respect to the punishment (making an experiment) and with no» agreement in advance to be bound by the result, or if the agreement is broken, the court’s finding of no error will not be disturbed on appeal. Following Leverett v. State, 3 Texas Grim. App., 213, and other cases. 2. —Same—Evidence—Threats of Deceased—Bill of Exceptions. Upon trial of murder, there was no error to permit the wife of the deceased to testify that during her husband’s entire lifetime she never heard him make any threat of any kind against the defendant; besides, the bill of exceptions was defective. 3. —Same—Evidence—Acts of Defendant—Res Gestae. Upon trial of murder, there was no error in admitting in evidence what was said and done by the defendant and the deceased from the time they first came in view of each other and when the killing occurred, and that the defendant immediately after leaving the scene of the killing had a six-shooter in each hand and attempted to resist arrest. Following Girtman v. State, 73 Texas Grim. Rep., 158. 4. —Same—Evidence—111 Will—Rebuttal. Where, upon trial of murder, defendant claimed acts of hostility on the part of the deceased to kill him, there was no error in permitting the State to show that the deceased had no ill-will against the defendant and that no acts of hostility, etc., existed. 5. —Same—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence failed to raise the issue of manslaughter, there was no error in the court’s failure to charge thereon. 6. —Same—Provoking the Difficulty—Charge of Court. Where, upon trial of murder, the evidence raised the issue that defendant provoked the difficulty, there was no error in submitting the same to the jury. 7. —Same—Indictment—Misspelling. Where, upon trial of murder, the letter “t” at the end of the word “aforethought” was omitted, there was no error, when the indictment was read as a whole. 8. —Same—Verdict by Lot—Conflict of Testimony. Where, upon motion for new trial, the court heard testimony on the question of misconduct of the jury in arriving at a verdict by lot and was clearly justified in holding that the verdict was not reached by lot, although the evidence was conflicting, there was no reversible error. 9. —Same—Manslaughter-—Charge of Court. Where, upon trial of murder, the evidence suggested self-defense, but not manslaughter, there was no error in the court’s failure to charge on manslaughter. 10. —Same—Buie Stated—Manslaughter—Murder. Two things are requisite to constitute manslaughter; first, adequate cause; and, second, existing passion; unless these two requisites co-exist, the offense is murder; and the passion must be caused by what the deceased does or says, and where the testimony in no way showed or tended to show that the deceased by word or act at the time of the killing said or did anything to the defendant to produce adequate cause, there was no error in the court’s failure to charge on manslaughter. 11. —Same—Buie Stated—Adequate Cause. It has always been held that if there is no adequate cause to produce a state of mind such as anger, rage, sudden resentment or terror, even if such state of mind does exist, the offense is not manslaughter, but murder on implied malice. Following Johnson v. State, 67 Texas Grim. Rep., 441, and other cases.
75 Tex. Crim. 85Coy v. State (1914)
1.—Bigamy—Burden of Proof—Mistake—Charge of Court. It is not required by the law that an accused shall establish Ms defense beyond a reasonable doubt; and where, upon trial of bigamy, defendant claimed that he was laboring under a mistake of fact that his first wife had procured a divorce from him and that this did not arise from a want of proper care on his part, and offered testimony to that effect, the court charged the jury that if they believed from the evidence beyond a reasonable doubt, etc., that this mistake existed, to acquit the defendant, the same was reversible error, although the burden of proof was on the defendant. 0.—Same—Rule Stated—Burden of Proof—Reasonable Doubt. There is quite a difference between the burden of proof, and the proof establishing a fact beyond a reasonable doubt, and while the burden to show a mistake of fact was upon the defendant, yet he was not required to show such mistake beyond a reasonable doubt. 3.—Same—Continuance—Practice on Appeal. While the testimony of the absent witnesses was admissible, yet the cause being reversed on other grounds, this matter need not be considered. 4. —Same—Evidence—Proper Care—Cross-examination—Decree of Divorce —Piling. Where, upon trial of bigamy, the defendant claimed that lie labored under a mistake of fact that his second wife was divorced from him when he married his third wife, and introduced in evidence the contents of a letter to that effect, and that this mistake did not arise from a want of proper care upon his part, there was no error in permitting the State on cross-examination to introduce facts that he did not use proper care, and that the present wife was his third wife, and that in marrying his second wife he acted upon a certified copy of divorce from his first wife, which he did not do in his last marriage, as said certified copy of divorce was only introduced to show want of proper care on the part of the defendant, and not for any other purpose and was expressly so limited by the court, and the Act of Congress under which it would not have been admissible did not apply, nor was it necessary to file said decree. Following Clayton v. State, 67 Texas Chim. Rep., 311. Davidson, Judge, dissenting. 5. —Same—Affidavit—Continuance. ’ Upon trial of bigamy, there was no error in excluding from the evidence a doctor’s affidavit as to the condition of an absent witness. 6. —Same—Decree of Divorce—Charge of Court. Where, upon trial of bigamy, a decree of divorce from defendant’s first wife was introduced in evidence to show a want of diligence on part of defendant in ascertaining whether he was divorced from his second wife at the time he married his third wife in Texas, although said decree was not properly authenticated and had not been filed with the records of the court, there was no error, nor in the court’s failure to give a peremptory charge to acquit, as defendant admitted by his testimony that he was divorced from his first wife before he married the second wife. Davidson, Judge, dissenting. [Rehearing denied November 35, 1914.—Reporter.]
75 Tex. Crim. 91Conatser v. State (1914)
The opinion states the case.
75 Tex. Crim. 94Perrett v. State (1914)
1. —¡Rape—Confession—Evidence. Where, upon trial of rape, the alleged confession of defendant was not made in conformity to law, the same was reversible error. 2. —Same—Contradicting Witness—Evidence. Where, upon trial of rape, the State placed prosecutrix on the stand as a witness who denied all acts of intercourse with the defendant, which was not a matter of surprise to the State, it was improper to permit the State to introduce her written statement made prior to the finding of the indictment in which she substantially admitted the illicit intercourse.
75 Tex. Crim. 95Eaton v. State (1914)
The opinion states the case.
75 Tex. Crim. 96Tyler v. State (1914)
Forgery—Appeal—Escape. Where, pending appeal from a conviction of passing a forged instrument, the defendant escaped from custody and did not voluntarily return within ten days, the appeal must he dismissed.
75 Tex. Crim. 97Woodard v. State (1914)
The opinion states the case.
75 Tex. Crim. 97Hicks v. State (1914)
The opinion states the case.
75 Tex. Crim. 99Reece v. State (1914)
The opinion states the case.
75 Tex. Crim. 102Sparlin v. State (1914)
Tried below before the Hon. W. S. Anderson. Appeal from a conviction of bigamy; penalty, two years imprisonment in the penitentiary. The charging part of the indictment was as follows: “Did then and there unlawfully marry B. Hettie ICnowls, he the said James E. Sparlin, then and there having a lawful former wife then living, against the peace and dignity of the State.”
75 Tex. Crim. 103Mayfield v. State (1914)
The opinion states the case.
75 Tex. Crim. 105Ex Parte Burton (1914)
Habeas Corpus—Murder—Bail. Where, upon habeas corpus for bail in a murder case, the evidence raised the issues of self-defense and imperfect self-defense, the relator was entitled to bail.
75 Tex. Crim. 105Wynne v. State (1914)
The opinion states the case.
75 Tex. Crim. 106Allen v. State (1914)
Assault to Murder—Representation by Counsel. Where the record showed that the trial court had postponed the case to give defendant time to procure counsel, of which defendant did not avail himself, there was no error in overruling a motion on that ground.
75 Tex. Crim. 107Miller v. State (1914)
Malicious Mischief—Poisoning Chickens—Intent to Injure—Insufficiency of the Evidence. Where, upon trial of wilfully and maliciously poisoning chickens with intent to injure the owner, there was a total lack of evidence that the chickens died from poison, and, if they did, that the defendant administered same directly or indirectly, the conviction could not be sustained.
75 Tex. Crim. 108McCuen v. State (1914)
1.—Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence was sufficient to sustain the conviction, there was no reversible error. 3.—Same—Other Transactions—Evidence—Cross-examination. Upon trial of a violation of the local option law, there was no error in admitting testimony that at the time defendant was arrested he had an unopened pint of whisky in his possession similar to the kind he was charged with selling; this was admissible as original evidence as well as on cross-examination. Following Wagner v. State, 53 Texas Grim. Bep., 306, and other cases. 3. —Same—Continuance—Discretion of Court—First Application. Under the statute,' it is expressly provided that the truth of the first or any subsequent application for continuance, as well as the merits of the grounds set forth therein, and its sufficiency, shall be addressed to the sound discretion of the court, and shall not be granted as a matter of right; and the contention that the first application, if otherwise sufficient, must be granted as a matter of right, is untenable. 4. —Same—Continuance—Impeaching Witness—Want of Diligence. A continuance will not be granted when the alleged absent testimony is available only to impeach a State’s witness; besides, there was a want of diligence. Following Giles v. State, 66 Texas Grim. Bep., 638, and other cases.
75 Tex. Crim. 110Carter v. State (1914)
1. —Murder—Fabricated Testimony—Motion for New Trial. Where, upon trial of murder and a conviction of said offense, defendant’s motion for new trial to which was attached the affidavit of the main prosecuting witness showing that her testimony on the trial of the case, and which was material to the prosecution, was false in a number of important particulars, and further showed that she gave the false testimony by reason of threats and inducements of third parties, a new trial should have been granted. 2. —Same—Manslaughter—Adequate Cause—Female Relative. Where, upon trial of murder, it developed that the female who testified for the State had promised to marry the defendant, who claimed that he had found her and deceased in a compromising situation, and that the deceased was about to commit rape upon her when defendant interfered, whereupon deceased drew a pistol upon him and defendant had to flee, and on the same evening of said day made an attack upon him with a knife when he killed the deceased, all of which said female denied upon the trial, but by her affidavit attached to the motion for new trial swore that defendant’s testimony was substantially correct, the issue of manslaughter was properly raised, although this was not statutory "adequate cause and not an insult to female relative. 3. —Same—Rule Stated—Manslaughter. The Code declares that certain things shall be deemed cause sufficient to reduce an unlawful killing to manslaughter and that certain other things shall not be deemed sufficient, and when none of these things mentioned in the Code are disclosed by the evidence, yet the testimony shows a cause or causes arising at the time or in connection with the killing as will produce a degree of anger, fear or rage, etc., such as to render the mind of an ordinary person incapable of cool reflection, etc., the offense would be manslaughter. 4. —Same—Self-defense—Hew Trial—False Testimony. Where, upon trial and conviction of murder, the defendant testified that deceased assaulted him with a pistol the evening before the night of the homi-' cide, and that the acts of the deceased at the time of the killing led defendant to believe his life was in danger, and the affidavit of the main prosecuting witness on motion for new trial showed that she had been induced to swear falsely upon trial and that the testimony of the defendant was substantially true, and that the State had used false testimony to discredit the plea of self-defense by defendant, a new trial should have been granted. 5. —Same—Evidence—Clothing of Deceased. Where, the point of entrance of the fatal shot was an issue in the case, there was no error in admitting the clothing of deceased in evidence. 6. —Same—Evidence—Leading Questions. State’s counsel should never by his questions suggest an answer to a friendly witness, but, as the judgment is reversed on other grounds, this need not be discussed. 7. —Same—Argument of Counsel. Counsel for the State should not appeal to passion and prejudice of the jury, and should always confine his remarks to the evidence and the legitimate deductions therefrom. 8. —Same—Evidence—Bias of Witness. All legitimate testimony tending to show the interest of a State’s witness should have been admitted. 9. —Same—Evidence—Credibility of Witness. The fact that a woman has been raped is not admissible as affecting her credibility as a witness, and such testimony was inadmissible.
75 Tex. Crim. 117Rasberry v. State (1914)
The opinion states the case.
75 Tex. Crim. 119Guiterrez v. State (1914)
1.—Murder—Bills of Exception—Charge of Court. Where, upon appeal from a conviction of murder, it appeared from the record that no objections were urged to the charge of the court before it was read to the jury, the same could not be raised in motion for new trial. 8.—Same—Rule Stated—Objections to Charge of Court. Objections to the charge of the court must be presented before the same is read to the jury, at which time exceptions thereto should be noted and all requested instructions should also be submitted then and properly verified. ' • 3. —Same—Bill of Exceptions—Evidence. In the absence of a bill of exceptions, complaints to the introduction of testimony can not be considered on appeal. 4. —Same—Reforming Judgment—Indeterminate Sentence Law. Where the indeterminate sentence law was ignored in entering the judgment and sentence, the same will be reformed on appeal.
75 Tex. Crim. 120Herrera v. State (1914)
The opinion states the case.
75 Tex. Crim. 123Partridge v. State (1914)
Hunting with Firearms—-Enclosed Land—Information. Where the information did not charge an offense under the Act of 1899, relating to posted lands used for agricultural or grazing purposes upon which stock were being herded or grazed, nor under the Act of 1903, amending article 804, White’s Penal Code, relating to enclosures of less than two thousand acres, whether posted or not, etc., a motion to quash should have been sustained.
75 Tex. Crim. 124Harper v. State (1914)
1.—Murder—Evidence—Threats—Declarations of Defendant. Where, upon trial of murder, the State claimed that the defendant had made threats against the deceased, there was no error in admitting testimony that the witness stayed all night with the defendant between the time of the occurrence of the first wordy altercation and the time of the shooting, and that he saw a pistol in defendant’s trunk, who told him that he had it for a purpose, that he had a man he was looking for, the record rendering it as certain as it was possible to do so without the name being called that the deceased was the man defendant referred to. 2. —Same—Rule Stated—Threats. Though the name of deceased be not mentioned when the threat was made, yet if it can be reasonably gathered that deceased was meant or included in the threat, it is admissible. 3. —Same—Evidence—General Reputation. Where a witness had declined to state that he knew the general reputation of defendant for truth and veracity, there was no, error in sustaining an objection to the question whether the witness ever heard the defendant’s reputation for truth and veracity discussed or questioned. 4. —Same—Rule Stated. The rule is, before a person can testify to the general reputation of a person in any respect, he must answer that he knows his reputation in the respect inquired about. 5. —Same—Evidence-—Reputation of Deceased. Where defendant was permitted to introduce evidence that the general reputation of deceased as a peaceable and law-abiding citizen was bad; that he had killed one man, had had a number of difficulties, and that he had had trouble with a certain party—the nature and circumstance of the difficulty not being stated or shown that they were known to defendant—-there was no error in excluding testimony explaining the nature and circumstances of said difficulty; only such matters the defendant may have known as to the conduct of deceased could possibly be admissible. Following Lubbock v. State, 66 Texas Grim. Rep., 309, and other eases. 6. —Same—Charge of Court—Requested Charges—Self-defense. Where, upon trial of murder, the court submitted a full and complete charge on self-defense, and also requested charges which were applicable to the facts, there was no error in refusing requested charges which were covered in the main charge. 7. —Same—Good Faith—Charge of Court. Upon trial of murder, the words, “in good faith” on the issue of self-defense should not have been embraced in the court’s charge; however, in applying the law to the facts, these words were not used, and there was no reversible error. Following Puryear v. State, 56 Texas Grim. Rep., 231, and other cases. 8. —Same—Charge of Court—Defensive Theory—Threats. Where, upon trial of murder, the theory of the defense was that although deceased was not armed when the homicide occurred, yet in the light of the previous threats and the character and disposition .of deceased, defendant believed his life was in danger, and the court fully submitted this theory in his charge to the jury, and did not use the words, “in good faith,” in this portion of the charge, there was no reversible error.
75 Tex. Crim. 131Ex Parte Nitsche (1914)
From Lee County. Original habeas corpus proceeding on the ground that the county attorney had failed to file an information in the Justice Court upon a complaint filed therein and sworn to before the county attorney. The opinion states the case.
75 Tex. Crim. 137McCue v. State (1913)
1. —Murder—Accomplice—Corroborating Testimony. Where, upon trial of murder, there was ample testimony corroborating the accomplice, tending to connect the defendant with the crime; such as the finding of defendant’s knife near the body, and many other circumstances, there was no reversible error on that ground. 2. —Same—Accomplice—Corroboration. The contention that someone other than the accomplice must have seen defendant at or near the scene of the crime, and must have seen him strike the blow, to be sufficient as corroborative testimony, is not the law, and where the corroborating testimony was sufficient to sustain the conviction, although conflicting, there was' no reversible error. 3. —Same—Alibi—Sufficiency of the Evidence—Charge of Court. Where, upon trial of murder, the evidence presented a strong alibi, but there was positive testimony which would render the alibi untrue, the matter was a question for the jury, and the court submitting a proper charge on alibi, there was no reversible error. Following Hines v. State, 40 Texas Grim. Rep., 23, and other cases. 4. —Same—Evidence—Identification of Dead Body. Upon trial of murder, there was no error in admitting testimony that the letters found in the grip claimed by deceased were written by the witness and her mother to the deceased, and that other wearing apparel, etc., found near the body was that of the deceased’s; the identification of said body being an issue in the case. Following Campbell v. State, 8 Texas Grim. App., 84, and other eases. Davidson, Judge, dissenting. 5. —Same—Argument of Counsel—Harmless Error. Where, upon trial of murder, the time book of the deceased found on the body of the deceased was admitted in evidence for the purpose of identifying the body, the argument of State’s counsel that the deceased had been a hardworking boy, etc., which was shown by said book, should not have been per"mitted; however, the same ivas harmless error. 6. —Same—Evidence—Alibi—Rebuttal. Where, upon trial of murder, defendant pleaded an alibi, claiming that he was at his father’s home all of the time during which the offense was committed, there was no error in admitting testimony that a State’s witness heard his voice in a certain place where defendant was located by other witnesses, to contradict his alibi. 7. —Same—Evidence—Reproduction of Testimony. Upon trial of murder, there was no error in admitting testimony of a witness who had died since, showing that the defendant was at a different place than that contended for in his alibi and was seen in company with the deceased in a certain saloon, etc., on the evening of the night of the homicide. Following Robertson v. State, 63 Texas Grim. Rep., 216. 8. —Same—Evidence—Supporting Testimony. Where, upon trial of murder, a certain State’s witness testified that he saw the defendant in a different place from where he contended he was in his alibi, and the defendant undertook to impeach this witness thereto, and as to certain statements he had made that he knew nothing a-bout the case, etc., ■ there was no error in permitting the State to introduce supporting testimony to corroborate the State’s witness. Davidson, Judge, dissenting. 9. —Same—Evidence—Weight of Testimony—Identification. Upon trial of murder, there was no error in admitting testimony that the witness had seen the defendant on the evening before the homicide in company with a person who suited the description of the deceased, and in a different place from that in which defendant contended he was by his alibi, and to introduce another witness for the State who testified that he was with the first State’s witness and saw parties who suited the description of the defendant and the deceased, although he could not identify the defendant. Davidson, Judge, dissenting. 10. —Same—Evidence—General Reputation. Where, upon trial of murder, the defendant established an alibi principally by members of his family, which was closely contested by the State’s testimony, there was no error in excluding testimony offered by the defense as to the general reputation of the members of defendant’s family for truth and veracity, no attack having been made on said witnesses. Following Hill v. State, 52 Texas Grim. Rep., 241, and other cases. Davidson, Judge, dissenting. 11. —Same—Evidence—Corroborating Circumstances. Upon trial of murder, where the State claimed the same had been committed in the perpetration of robbery, there was no error in admitting testimony that defendant had a considerable amount of money and was spending the same with prostitutes in a saloon immediately after the homicide, and that he had no money prior thereto; the accomplice having testified to similar circumstances. Davidson, Judge, dissenting. 12. —Same—Evidence—Supporting Testimony. Where, upon trial of murder, the State’s testimony disclosed that the defendant and the accomplice came to a certain house of prostitution after the homicide, and that they washed their hands there and spent the remainder of the night there, there was no error in admitting testimony of the accomplice that the first time he met the defendant was at said house of prostitution and that he had seen him there frequently; this was admissible as supporting testimony, etc., of State’s witnesses who were not accomplices. Davidson, Judge, dissenting. 13. —Same—Evidence—Supporting Testimony. Where, upon trial of murder, the accomplice and other State’s witnesses who were not accomplices had testified that defendant had been seen at a certain house of prostitution both before and immediately after the homicide, and to his various acts while there, there was no error in admitting testimony that defendant when arrested on Thursday after the homicide on Saturday night was coming from said house of prostitution and was arrested in front of the saloon thereof; besides, if error, the same was harmless. Davidson, Judge, dissenting. 14. —Same—Charge of Court—Accomplice—Alibi—Principals. Where, upon trial of murder, the evidence raised the issue of accomplice testimony, alibi and principals, and the court submitted a correct charge thereon, when considered as a whole, and the evidence sustained the conviction, there was no reversible error. Davidson, Judge, dissenting. 15. —Same—Motion for Rehearing—Argument of Counsel. See opinion wherein court deprecates certain expressions and animadversions of counsel in their brief and motion for rehearing. 16. —Same—Mewly Discovered Evidence—Want of Diligence. Where the alleged newly discovered evidence in defendant’s motion for new trial showed an utter want of diligence to discover the same before the trial, there was no error in overruling same. Following Carrico v. State, 36 Texas Crim. Rep., 618, and other cases. Davidson, Judge, dissenting. 17. —Same—Continuance—Cumulative Evidence. Where the alleged newly discovered evidence was merely cumulative of testimony admitted on trial, which was the fifth trial of the case, there was no error in overruling the motion for continuance and the motion for new trial on that ground. Following Terry v. State, 3 Texas Crim. App., 236, and other eases. Distinguishing Spencer v. State, 69 Texas Crim. Rep., 92. 18. —Same—Identity of Deceased—Evidence. Where one of the main issues in the trial for murder was the identification of the body of the deceased, there was no error in admitting in evidence certain letters written to the deceased, which were found near the scene of the murder in a grip which belonged to the deceased. Following Kugadt v. State, 38 Texas Crim. Rep., 681, and other cases. Davidson, Judge, dissenting. 19. —Same—Rule Stated—Identity. Where the question in issue is the identity of the dead body, it is competent to show the physical characteristics. So, also, the similarity of wearing apparel and articles found on or near the remains to those known to have been in the possession of the deceased may be shown; also papers and documents in the possession of the deceased. 80. —Same—Supporting Testimony—Rule Stated. Where a State’s witness is sought to be impeached by showing that he has made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the trial, it is not error to allow the State to support the witness by showing that shortly after the transaction he made statements of the matter similar to his evidence delivered on the trial. Following Goode v. State, 32 Texas Crim. Rep., 505, and other cases. 81. —Same—Rule Stated—Supporting Testimony. Where the testimony goes to charge the witness with recent fabrication of his testimony and that the witness testifies from corrupt motives, statements of the witness are admissible in consonance with his testimony on the trial made shortly after the happening of the event in support of his testimony. Following Williams v. State, 24 Texas Crim. App., 637, and other cases. 83.—Same—Evidence—Volunteer Witness. Where, upon trial of murder, the defendant attempted to prove that certain of defendant’s witnesses were volunteering as witnesses in the case, there was no error in permitting the State to show that they were called to testify by the State. Following Gonzales v. State, 16 Texas Crim. App., 152. 33. —Same—Argument of Counsel—Strangers. Where the appellant complained that the argument of State’s counsel tnat defendant’s alibi was false and that, therefore, he should have been permitted to introduce supporting testimony of his alibi witnesses, but there was no attempt on the part of the State to attack the character of defendant’s witnesses who testified to his alibi, there was no error in not admitting such supporting testimony; although- all the witnesses, both for the State and for the defendant, were strangers in the county of the prosecution by reason of the change of venue. Davidson, Judge, dissenting. 34. —Same—Rule Stated—General Reputation. The rule of law is that proof of general reputation of witnesses for truth and veracity is not admissible where no attack has been made on the witness, but there is mere conflict in the testimony offered by the State and the defendant, and this although all the witnesses for the State and for the defense were strangers in the county of the prosecution hy reason of the change of venue. Distinguishing Phillips v. State, 19 Texas Grim. App., 158; Harris v. State, 49 Texas Grim. Rep., 338; Goode v. State, 57 Texas Grim. Rep., 220. Davidson, Judge, dissenting. 25. —Same—Evidence—Alibi—Corroborative Circumstances. Where, upon trial of murder, the defendant pleaded an alibi and contended that he was at his father’s house during the entire time, and some time before and after the homicide was committed, and that he was not in the city of Dallas proper in the afternoon preceding the murder and the night of the murder, and one of the State’s witnesses testified that she heard defendant’s voice in a certain house on the night of said murder, there was no error in permitting the State to introduce testimony of other State’s witnesses that defendant was seen on said night of the murder in said house and that he associated there with prostitutes and freely spent money therein, etc., the State having shown that robbery was the motive of the murder and that defendant and said accomplice had been seen at said house soon after the murder with blood on their hands, etc. Davidson, Judge, dissenting. 26. —Same—Evidence—Circumstances. Where, upon trial of murder, defendant objected to certain evidence introduced by the State to the effect that he was "found in a certain negro house of prostitution and was intimate with the. inmates thereof, etc. Held, that while testimony that defendant had visited these places could not be shown as independent facts; yet, where they were necessarily entwined in and around the circumstances which the State legitimately offered as evidence tending to show his guilt, there -was no reversible error. Davidson, Judge, dissenting. 27. —Same—Charge of Court—Alibi. Where, upon trial'of murder, the defendant pleaded an alibi, and the court submitted a charge thereon according to approved precedent, there was no reversible error. Following McCoy v. State, 56 Texas Grim. Rep., 551, and other-cases. 28. —Same—Accomplice—Charge of Court. 'Where, upon trial of murder, the conviction depended largely upon accomplice testimony and the court submitted a proper charge thereon, there was no reversible error. Following Brown v. State, 57 Texas Grim. Rep., 570, and other cases. 29. —Same—Charge of Court—Requested Charges. Where, upon trial of murder, the court submitted a correct charge on the issues raised by the evidence, which was not calculated to injure the rights of the defendant, and refused requested charges which were not the law of the case, there was no reversible error. Davidson, Judge, dissenting. 30. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the évidence sustained the conviction of murder in the first degree, although conflicting, there was no reversible error. Davidson, Judge, dissenting.
75 Tex. Crim. 177Johnson v. State (1914)
1. —Local Option—Transporting and Delivering Intoxicating Liquors— Legislative Power. The Legislature has power to adopt remedial legislation in aid of the enforcement of the prohibition law, and the contention that the Allison Law prohibiting the unlawful transportation, carriage and delivery of intoxicating liquors into local option territory was invalid because it was enacted after prohibition had been adopted in the county of the prosecution is untenable. Following Fitch v. State, 58 Texas Grim. Rep., 366. 2. —Same—Constitutional Law—Intoxicating Liquors—Allison Law. The Act of th.e Legislature known as the Allison Law prohibiting the unlawful transportation, carrying and delivering of intoxicating liquors into local option territory except by a person who is a resident therein for his personal use, etc., is constitutional. Following Ex parte Muse, 74 Texas Grim. Rep., 76, and other cases. Davidson, Judge, dissenting. 3. —Same—Indictment—Statutes Construed. Where the indictment charged the defendant with unlawfully transporting, carrying and delivering intoxicating liquors into local option territory, there was no error in overruling a motion to quash the indictment on the ground that the Act of the Legislature under which the prosecution was brought was enacted after prohibition had been adopted in the county of the prosecution. Davidson, Judge, dissenting. 4. —Same—Indictment—Voting Precinct. In a prosecution for unlawfully transporting, etc., intoxicating liquors into local option territory and delivering the same to another, it was not necessary to allege the names of the various voting precincts in the county of the prosecution, the allegation that prohibition had been adopted therein, etc., being sufficient. 5. —Same—Indictment—Pleading—Several Offenses. Where the indictment charged that the defendant on a certain date in the county of the prosecution, wherein prohibition was in force, did unlawfully transport, carry and deliver one quart of intoxicating liquors to “H.,” etc., a complaint that the indictment charged three separate effenses is without merit, as the offense could he alleged to have been committed in all of the ways set out in the statute, and proof that the offense was committed in either of the ways alleged would sustain the conviction. 6. —Same—Rule Stated—Several Offenses—One Count. If several offenses are embraced in the same general definition and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count. Following Howell v. State, 29 Texas Grim. App., 592, and other cases. 7. —Same—Sufficiency of the Evidence—Case Stated—Allison Law. Where the indictment alleged and the proof showed that defendant procured intoxicating liquors from some other point in this State and did transport, carry and deliver the same to another person in the county of the prosecution in this State, where prohibition was in effect, and the evidence wholly failed to show what use said party to whom the liquor was delivered intended to put the same when he received it, and the question of personal use was not raised by the evidence (and need not, therefore, be discussed), the defendant is guilty under section 4 of the so-called Allison Liquor Law, Act of the Thirty-third Legislature. Prendergast, Presiding Judge, concurring, holding that even if the party receiving designed it for personal use the' law was violated. Davidson, Judge dissenting. 8. —Same—Evidence—Circumstances—Receptacle of Liquors. Where defendant was prosecuted for carrying, transporting and delivering whisky in prohibition territory for illegal purposes, there was no error in admitting testimony as to the contents of a certain valise in which it had been carried, and permitting the valise to be opened in the presence of the jury and introducing it and its contents in evidence, the same having been sufficiently identified. 9. —Same—Evidence—Intoxicating Liquor—Bottles in Evidence. Where defendant was being prosecuted for carrying, transporting and delivering whisky into prohibition territory for illegal purposes, there was no error in admitting testimony that the bottles containing the whisky and introduced in evidence in fact contained whisky. Davidson, Judge, dissenting. 10. —Same—Evidence—Circumstances—Identity of Defendant. Where, upon trial of carrying, transporting and delivering whisky in prohibition territory for illegal purposes, defendant contended that it could not be shown that he had handled a certain grip or valise containing the whisky designed for a person residing in prohibition territory, there was no error in admitting testimony that the grip was handed out by someone in the railway coach to another person who ran and threw the grip under the coach when the officers approached; it being show that the grip had defendant’s name on it and the circumstances rendered it certain that defendant was the man who handed the grip out of the coach. 11. —Same—Evidence—Res Gestae—Other Liquor. Where defendant was charged with carrying, transporting and delivering one bottle of whisky into prohibition territory for illegal purposes, and it was developed on trial that the same was carried in a certain grip owned by the defendant, there was no error in permitting the entire contents of the grip containing twelve bottles of whisky to be introduced in evidence. 12. —Same—Charge of Court—Several Offenses. Where defendant was charged with carrying, transporting and delivering whisky in prohibition territory for illegal purposes, a conviction could be had if the offense was committed in either of the ways alleged in the indictment, and there was no error in so instructing the jury. Following Copping v. State, 7 Texas Grim. App., 61. 13. —Same—Several Means Alleged—Delivery. Where defendant was charged with carrying, transporting and delivering whisky in prohibition territory for illegal purposes, a conviction would be authorized even if the whisky was not delivered, the evidence showing'that defendant transported and carried the same as alleged in the indictment; besides, the delivery by defendant to a go-between was a delivery to the party intended. 14. —Same—Agency—Sale. Where defendant was prosecuted for carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, and merely acted as the agent of the person to whom he carried and delivered the liquor, the question, of sale of same and a violation of the law on that ground was , not involved. Harper, Judge, dissenting. ■ 15.—Same—Agency—Sufficiency of the Evidence—Use—Purpose. | Where defendant was prosecuted for carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, and the proof sustained the allegations, and showed that he acted as the agent of the person to whom the liquor was delivered, the evidence wholly failing to show to what use the liquor was intended to be put when received, defendant is guilty of a i violation of section 4 of the so-called Allison Law. Prendergast, Presiding ' Judge, concurring, holding that it was immaterial for what use the liquor was i intended. Davidson, Judge, dissenting. 16.—Same—Negative Averments—Personal Use Not Involved. Where defendant was charged with carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, it was not necessary to negative any of the exceptions set out in the statute (although this was done), and if the evidence showed that defendant did either carry, transport or deliver to another in prohibition territory intoxicating liquors, the case is made out against him, unless defendant brings himself within any of the exceptions, and the question of personal use is not raised and need not be discussed. 17.—Same—Sufficiency of the Evidence—Introducing Liquors—Delivery. Where, upon trial of carrying, transporting and delivering intoxicating liquors into prohibition territory for illegal purposes, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. Davidson, Judge, dissenting. 18.—Same—Personal Use—Statutes Construed. See opinion, Harper, Judge, holding as there is no testimony that the whisky carried, transported and delivered into prohibition territory was intended for personal use (that question need not be discussed), the conviction is sustained. Prendergast, Presiding Judge, holding that if defendant so carried and delivered said liquor, he was guilty regardless as to what use the person receiving it should make of it. Davidson, Judge, holding that the mere carrying, transporting and delivering of said liquor by defendant to another into prohibition territory would not be a violation of law under the Constitution of Texas, which only prohibits the sale of such liquor. [Rehearing denied November 25, 1914.—Reporter.]
75 Tex. Crim. 188Barnes v. State (1914)
The opinion states the case.
75 Tex. Crim. 213Savage v. State (1914)
The opinion states the case.
75 Tex. Crim. 225Whitten v. State (1914)
Local Option—Sale—Sufficiency of the Evidence. Where it was shown that defendant said that he had some whisky at home in his trunk; that prosecuting witness paid him for the whisky and went to defendant’s home where defendant’s brother showed him defendant’s trunk, and the witness went into it and got therefrom a quart of whisky, the sale was complete.
75 Tex. Crim. 226McCaulay v. State (1914)
Aggravated Assault—Statement of Facts—Bills of Exceptions—Requested Charges. In the absence of a statement of facts and bills of exception, a refusal of ■ requested charges can not be considered on appeal.
75 Tex. Crim. 227Whitten v. State (1914)
Tried below before the Hon. Geo. Morrison. . Appeal from a conviction of a' violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.
75 Tex. Crim. 227Seats v. State (1914)
Assault to Murder—Statement of Facts—Bills of Exception—Charge of Court. In the absence of a statement of facts and exceptions to the charge of the court before it was read to the jury, the question of the insufficiency of the evidence and the refusal of the court to give certain instructions can not he considered on appeal.
75 Tex. Crim. 228Horton v. State (1914)
Carrying Pistol—Statement of Pacts—Bills of Exception. In the absence of a statement of facts and bills of exception, the indictment charging an offense, the court’s failure to charge on defendant’s theory of defense can not be considered. [Rehearing denied November 25, 1914.—Reporter.]
75 Tex. Crim. 229Calvert v. State (1914)
1.—Aggravated Assault—Serious Bodily Injury—Insufficiency of the Evidence. Where, upon trial of aggravated assault caused by inflicting serious bodily injury, the evidence showed that the person assaulted called defendant a d-d liar, whereupon defendant with his fist struck him on the right cheek or jaw, from which he fell, striking his head either against an auto or the curbing of the sidewalk, and that from said fall a fracture of the skull occurred producing insanity, etc. Held that the result of defendant’s blow by which the party assaulted fell and struck his head against the curb on the sidewalk was not the necessary or probable result and not in contemplation of defendant when he struck the blow, and the facts did not constitute aggravated assault. Prendergast, Presiding Judge, dissenting. 8.—Same—Evidence—Declaration of Third Parties. Upon trial of aggravated assault, testimony with reference to certain entries in a book, of independent matters between third parties, should not have been introduced. 3. —Same—Argument of Counsel. Counsel for the State are admonished not to go outside of the record in their argument. 4. —Same—Charge of Court—Excessive Force. Upon trial of aggravated assault, where the evidence did not raise the issue of the use of excessive force, the court should not have charged on this matter; however, the record did not properly present this issue on appeal. 5. —Same—Filing—Duty óf Clerks. Clerks of the lower courts are admonished that they must take time to properly file papers and make the transcripts show the proper filing, and to he more careful in following the rules and practice in regard to such matters.
75 Tex. Crim. 238Blair v. State (1914)
The opinion states the case.
75 Tex. Crim. 239Gomez v. State (1914)
The opinion states the case.
75 Tex. Crim. 244Eoff v. State (1914)
1.—Perjury—Evidence—Agreement—Attorney and Client. Where the agreement between defendant’s and State’s counsel was made in open court in defendant’s presence and hearing, was introduced without objection by defendant, and evidenced no matter which would tend to show that defendant was guilty of false swearing, but only some preliminary matters that were necessary to be proven, it is too late to raise the question that defendant did not personally assent to said agreement or make the same in motion for new trial; besides,, the same facts were proved by other testimony. .2.—Same—Grand Jury—Administering Oath—Indictment. In an indictment for perjury before the grand jury, it was unnecessary to allege any other facts than that' the oath was administered to the witness by some person under the direction of the foreman; besides, it was shown that the district attorney administered the oath under the direction of the foreman. Following Bailey v. State, 41 Texas Grim. Rep., 157, and other cases. [Rehearing denied November 11, 1914.—Reporter.]
75 Tex. Crim. 247Ex Parte Peede (1914)
The opinion states the case.
75 Tex. Crim. 309Bedford v. State (1914)
1.—Swindling—Evidence—Knowledge of Defendant—Rebuttal. Where, upon trial of swindling in borrowing money and giving a lien on a certain city lot, the State showed that prior thereto the defendant had already sold the lot to another party, and defendant contended that the money on said prior deal had not been paid him, and that he did not know that the deed he gave the first party had been placed on record, etc., there was no error in permitting the State to show in rebuttal that defendant had received full payment on the first deal, and that his deed to said lot was delivered to the first purchaser and placed on record, and that the defendant knew these facts. 3.—Same—Evidence—Other Offenses—-Rule Stated. Where the issue is with what intent the alleged act complained of was done, proof of another offense is admissible as direct evidence against the accused. 3. —Same—Suspension of Sentence—Evidence—Credibility of Witness. Upon trial of swindling, where defendant had filed his application asking a suspension of sentence in the event he was convicted, there was no error in permitting the State, on cross-examination of defendant,"to show that he had been indicted for several offenses, although testimony as to a prior conviction for forgery in which the judgment was set aside and the indictment dismissed was not proper evidence; however, no specific objection having been urged thereto, and the court properly limiting said testimony, there was no reversible error. 4. —Same—Charge of Court—Requested Charge—Intent. Where, upon trial of swindling in obtaining money on a certain city lot, the evidence showed that the defendant had made a prior conveyance thereto to another party, and defendant claimed that he had received no consideration on said first deal, which was rebutted by the testimony of the State, a special instruction that the jury could not consider the deed from defendant to the first party as evidence of guilt was correctly refused, the court having submitted the question of intent in his general charge; which also covered another refused requested charge by the defendant. 5. —Same—Charge of Court—Objections. Under the law as it now is, this court can not consider objections made to the charge of the court after it has been submitted to the jury or after verdict; besides, the exception thereto was too general, and the criticism that it was upon the weight of the evidence was not borne out by the record. 6. —Same—Charge of Court—Amended Motion for Hew Trial. Where appellant in his amended motion for new trial complained of the charge of the court, hut there was no fundamental error to show that appellant had. not received a fair and impartial trial, there was no reversible error. 7. —Same—Sufficiency of the Evidence—Record Evidence—Oral Testimony—Harmless Error. Where defendant was charged with swindling in obtaining money upon a city lot which he had conveyed prior thereto to another party and received the money thereon, all of which was shown by oral testimony upon the trial without objection, a complaint in the motion for new trial that the conviction was not supported by the evidence, under which complaint in appellant’s brief it was claimed that the note and deed of trust given by appellant to the party alleged to have been swindled had not been introduced in evidence, nor the deed from defendant to the first purchaser, which was home out by the statement of facts, yet as the record was replete with oral evidence of the contents of these instruments to which no objection had been made, there was no reversible error. [Rehearing denied November 18, 1914.—Reporter.]
75 Tex. Crim. 315Brown 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 %vas no reversible error. 2. —Same—Postponement—Depositions. In the absence of an effort to take the depositions of defendant’s witness living in another State, there was no error in overruling an application for a postponement of the case on that account. 3. —Same—Indictment—Indorsement—Foreman of Grand Jury. The fact that the name .of the foreman of the grand jury who signed the indictment was not indorsed thereon did not vitiate the indictment. 4. —Same—Charge of Court—Reasonable Doubt. Where the court below gave the usual and customary instructions as to presumption of innocence and reasonable doubt, there was no error in refusing a requested instruction which was not the law on this phase of the case. [Rehearing denied November 18, 1914.—Reporter.]
75 Tex. Crim. 317Davis v. State (1914)
1. —Murder—Sufficiency of the Evidence—Death Penalty. Where, upon trial of murder and a conviction assessing the death penalty, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. 2. —Same—Bill of Exceptions—Practice on Appeal. In the absence of a bill of exceptions to matters complained of during the trial, the same can not be reviewed on appeal. However, when considered, there was no reversible error. [Rehearing denied Hovember 18, 1914.—Reporter.]
75 Tex. Crim. 318Hatcher v. State (1914)
The opinion states the case.
75 Tex. Crim. 320Ex Parte Lewis (1914)
The opinion states the case.
75 Tex. Crim. 322Brown v. State (1914)
The opinion states the case.
75 Tex. Crim. 325Turner v. State (1914)
1. —Theft of Cattle—Sufficiency of the Evidence. Where, upon trial of theft of cattle, the evidence was sufficient to sustain the conviction, there was no error on that ground. 2. —Same—Venue—Charge of Court. Where, upon trial of theft of cattle, the evidence showed that the same were stolen in another county in this State and taken into the countv of the prosecution, the court properly instructed the jury that the venue was in the county of the prosecution. 3. —Same—Ownership—Charge of Court—Objections—Fundamental Error. Where, upon trial of theft of cattle, the court under article 457, Code Criminal Procedure, instructed the jury that if the party alleged in the indictment as the owner had possession, charge and control of the property alleged, that this constituted him the owner, although the title to the property was in another, but did not give the correct name of the latter, and his attention was not called thereto at the time of the trial, and the appellant for the first time in his brief complained of said paragraph of the court’s charge, the same came too late, and there was no reversible or fundamental error. Following Mooney v. State, 73 Texas Grim. Rep., 121. 4. —Same—Brand—Ownership—Charge of Court. Where, upon trial of theft of cattle, the defendant submitted a requested charge that the brand on said cattle could only be considered for the purpose of identity, and not as any proof of ownership because unrecorded, but there was no hill of exceptions to the court’s refusal to give it, and the court gave mo charge whatever on the subject, the same can not be considered on appeal; besides, under the Act of March 31, 1913, there was no error. Following James v. State, 72 Texas Grim. Rep., 457, and other cases. 5. —Same—Evidence—Testimony on Former Trial. Where, upon trial of theft of cattle, the State was permitted to introduce a portion of the testimony of the defendant on a former trial, and defendant offered the balance of the testimony on the question involved, which was by the court excluded, the same was reversible error. Prendergast, Presiding Judge, dissenting, holding that the bill of exceptions was defective.
75 Tex. Crim. 330Watts v. State (1914)
The opinion states the case.
75 Tex. Crim. 337Hobbs v. State (1914)
The opinion states the case.
75 Tex. Crim. 338House v. State (1914)
The opinion states the case.
75 Tex. Crim. 347Romano v. State (1914)
1.—Embezzlement—Statement of Facts. Where the statement of facts was not filed until nearly four months after the adjournment of court, and n-o reason was shown why the same was not filed sooner, the same must be stricken out on motion of the State. ■ 2.—Same—Requested Charge. In the absence of a statement of facts, a refusal of a requested charge can not be revised on appeal. 3.-—Same—Statement of Facts—Practice on Appeal. While it may be a very serious question whether defendant should have been convicted, yet where the statement of facts was filed too late, the judgment must be affirmed.
75 Tex. Crim. 348Speer v. State (1914)
1. —Pandering—Suspension of Sentence—Verdict. In the absence of an application for the suspension of sentence, the jury' had no right to recommend it to the court. 2. —Same—Charge of Court—Objections—Sufficiency of the Evidence. In the absence of objections to the charge of the court before the same was read to the jury, the same could not be considered on appeal; besides, the court’s charge correctly submitted the issue made by the evidence. 3. —Same—Sufficiency of the Evidence. Where, upon trial of pandering, the evidence sustained the conviction under a proper charge of the court, there was no reversible error.
75 Tex. Crim. 350Cook v. State (1914)
1. —Murder—Sufficiency of the Evidence—Manslaughter. Where, upon trial of murder, the evidence did not raise the issue of manslaughter and was sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error. 2. -—Same—Exculpatory Statements—Charge of Court. Where, upon trial of murder, appellant complained on appeal that the court should have submitted a charge on manslaughter, especially, in view of the exculpatory confessions of the defendant in evidence, but the record on appeal showed that the court properly submitted the question of exculpatory statements, and the jury found them untrue, which was borne out by the record to have been a correct finding, and the court’s charge on self-defense, as raised by defendant’s admissions, was applicable to the facts, and that the killing showed a homicide on implied malice, which the court submitted in a proper charge, a conviction of murder in the second degree is sustained. 3. —Same—Circumstantial Evidence—Charge of Court." Where the court’s charge on self-defense, insanity and exculpatory statements by defendant were all submitted in the court’s main charge, there was no error in refusing special instructions thereon, and the evidence being direct by defendant’s admission that he killed deceased, there was no error in the court’s failure to charge on circumstantial evidence, as it is only in cases where the evidence is wholly circumstantial that the court is required to charge on circumstantial evidence.
75 Tex. Crim. 354Alexander v. State (1914)
Carrying Pistol—Sufficiency of the Evidence—Intent. Where, upon trial of unlawfully carrying a pistol, defendant claimed that she was greatly excited, etc., and that if she went out into the street with a pistol, she did so unconsciously, and the court submitted the defense of being on her own premises, etc., to the jury, there was no reversible error.
75 Tex. Crim. 356Wertheimer v. State (1914)
1. —Embezzlement—Statement of Facts. Where the statement of facts was • approved by counsel both for the State and for the defendant before reaching the trial judge, and the latter refused to consider the same because he was leaving the State on Ms vacation, and the appellant thereby lost his right to file his statement of facts within time without fault on his part or- that of his counsel, the judgment must be reversed and the cause remanded. Following Parker v. State, 65 Texas Grim. Rep., 412, and other cases. 2. —Same—Filing Back. The trial court has no authority to order a statement of facts filed back, and the clerk of the court is correct in not obeying the order.
75 Tex. Crim. 357Swafford v. State (1914)
The opinion states the case.
75 Tex. Crim. 361Perkins v. State (1914)
The opinion states the case.
75 Tex. Crim. 362Francis v. State (1914)
1. —Murder—Charge of Court—Murder in First Degree. Where defendant was found guilty of murder in the second degree, a complaint to the charge on murder in the first degree need not be considered. Following Potts v. State, 56 Texas Crim. Rep., 39. 2. —Same—Negligence and Gross Mistreatment. Where, upon trial of murder, the evidence did not raise the issue whether deceased’s death was caused by negligence and gross mistreatment after he was shot, there was no error in the court’s failure to charge thereon. 3. —Same—Assault to Murder—Aggravated Assault—Charge of Court— Manslaughter. Where the issues of assault to murder, aggravated assault and manslaughter were not raised by the evidence, there, was no error in the court’s failure to charge thereon. Following Johnson v. State, 167 S. W. Rep., 733. 4. —Same—Supplemental Motion for New Trial—Practice on Appeal. Where defendant’s motion for new trial was overruled and he gave notice of appeal, and after court adjourned for the term, filed a so-called supplemental motion for new trial, the same could not be considered by the lower court or by this court. Following Tores v. State, 166 S. W. Rep., 523. 5. —Same—Evidence—Res Gestae. Where, upon trial of murder, the declarations of deceased were admitted to the effect that he wanted to see his poor little children, that he was shot by the defendant, and the defendant objected in a general way to this testimony, part of which was admissible and another, part was not, there was no reversible error. Following Ortiz v. State, 68 Texas Grim. Rep., 524. 6. —Same—Evidence—Dying Declarations. Where the alleged dying declarations were admitted upon a proper predicate, there was no reversible error. 7. —Same—Conversation—Cross-examination—Ill-Will. Where, upon trial of murder, part of the conversation was admitted in evidence, there was no error on cross-examination by the State in permitting it to bring out the remainder of the statement made by the deceased to the witness; besides, the same showed ill-will by the defendant towards the deceased. 8. —Same—Evidence—Dying Declarations. Where part of the statement of the wife of the deceased was simply introductory and led up to the main dying declaration of the deceased, which was admissible in evidence, and defendant was found guilty of the lowest offense on the charge of murder and his punishment assessed at the lowest penalty fixed by law, there was no reversible error. 9. —Same—Evidence—Written Statement by Deceased. Where, upon trial of murder, the evidence showed that it was a fair inference from the facts in evidence that when the written statement of the deceased admitted as 'his dying declarations was made, the required conditions existed, there was no error. 10. —Same—Evidence—Irrelevant Matter. Where, upon trial of murder, the court ruled out testimony that deceased did not have very much regard and consideration for defendant, etc., there was no reversible error. [Rehearing denied November 35, 1914.—Reporter.]
75 Tex. Crim. 369Echols v. State (1914)
1. —Murder—Evidence—Other Transactions—Character of Deceased. Where, upon trial of murder, and the plea of self-defense, etc., the court permitted defendant to show the reputation of deceased to' be that of a violent and dangerous man; that he had made threats against the defendant; that on a former occasion he shot the defendant and also his two brothers, and all acts of violence that defendant claimed he had, heard deceased had been guilty of, there was no error in not permitting defendant to testify and to prove by others the details of said prior shooting. Following Menefee v. State, 67 Texas Grim. Rep., 201, and other cases. 2. —Same—Evidence—Declarations of Third Parties. Where, upon trial of murder in which defendant claimed self-defense, etc., and in which the court permitted him to testify to the injury he received, etc., at a prior shooting by deceased, there was no error in not permitting testimony to go to the jury as to what a witness individually knew about the former difficulty between deceased and the defendant, defendant not claiming that he had received any information from said witness in regard to that matter. 3. —Same—Evidence—Acts of Third Parties. The reason why a witness for defendant was carrying a pistol on the day of the homicide would be immaterial to any issue in the case, as what might have influenced the witness in carrying the pistol for the deceased should have no bearing on what influenced the defendant in firing the shot that killed the deceased. 4. —Same—Evidence—Declaration of Third Parties—Argument of Counsel—Harmless Error. Where it was not shown that a certain witness was dead or beyond the jurisdiction of the court, there was no error in refusing to permit other witnesses to testify as to what they heard the absent witness testify to at the examining trial; hut the remark of State’s counsel that the defense did not believe this testimony ought not to have been made, yet, this was harmless error. 5. —Same—Evidence—Declarations of Deceased—Knowledge of Defendant. Where, upon trial of murder, defendant did not claim that he had heard as to what deceased had said about a third party, there was no error in not permitting a defendant’s witness to testify as to this statement; it is only acts of violence of which defendant knew or had heard, which were admissible in evidence. Following Patterson v. State, 56 S. W. Rep., 59, and other cases. 6. —Same—Evidence—Acts of Third Parties—Acts of Deceased. Where defendant claimed self-defense on trial of murder, it was the acts and conduct of deceased, and not those of a third party that defendant could rely upon, and it was not a question as to what said third party would have-done under different circumstances, said third party testifying in full as to the acts of the deceased at the time of the shooting when he tried to place said third party in front of him. 7. —Same—Evidence—Opinion of Witness. , Where the answer the witness could have given to the question propounded would have been but an opinion of the witness, there was no error in sustaining objection thereto; besides, the answer was not given in the bill of exceptions. 8. —Same—Argumentative Questions—Examination of Witness. Where the 'questions of defendant’s counsel assumed the form of an argument instead of permitting the witness to state the facts, there was no error in not permitting such examination. 9. —Same—Evidence—Immaterial Matter. Where it was not contended that the answer of the witness would have shown that he had been guilty of moral turpitude, there was no ’error in sustaining an objection propounded to the witness as to why he resigned the office of justice of the peace. 10. —Same—Evidence—Bias of Witness. Where the question and explanation was clearly assuming facts that were not even shown in evidence, and the contrary was shown by the witness, there was no error in the court’s action to sustain an objection thereto. 11. —Same—Evidence—Bias of Witness—Declarations of Third Party— Time and Place. Where the defendant asked the witness whether it was not a fact that he had expressed his feelings to divers parties and did not name the parties, time and place, there was no error in sustaining objection thereto. IS.—Same—Evidence—Rebuttal. Where the defendant had testified that he did not advance towards the deceased, there was no error in admitting testimony in rebuttal that defendant did go towards the deceased before he fired the shot that killed him. 13. —Same—Remarks by Judge—Harmless Error. Where defendant attempted to show that a certain witness had permanently removed from the State, so that his testimony given at the examining trial might be proven up, and had thus shown that said witness had disappeared to avoid process, there was no reversible error in the court’s remark, “Gentlemen, it appears to me that said witness has skipped out for the purpose of keeping away from this court,” although he should not have used such remark. 14. -—Same—Colloquy Between Court and Counsel—Practice. The court should never lose his temper' in ruling on evidence, and in a colloquy with defendant’s counsel with reference to the latter’s attempt to continually seek to introduce testimony that the court has held inadmissible, should enforce obedience to his ruling, not in the presence of the jury by yielding to his loss of temper, but by retiring the jury and reprimanding counsel. 15. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence, although conflicting, sustained the conviction, there was no reversible error. 16. —Same—Former LaW:—Penalty—Murder in the First Degree—Article 743—Charge of Court. While it was defendant’s right to have the jury instructed as to the law ' as it exists now, and have applied the penalty to murder of the first degree as now fixed by law, yet, where the offense occurred before the recent law consolidating the elements of murder, and he made no objection to the court’s charge submitting the ease under the law as it existed when the alleged murder was committed, defining murder upon express and implied malice and the punishment attached thereto, he could not raise the question for the first time in his oral argument in this court, and it must he presumed that he elected to be tried under the law as it existed at the time the offense was committed, and there was no reversible error under article 743, Code Criminal Procedure. 17.—Same—Charge of- Court—Objections—Statutes Construed—Presumption. While defendant had a right to have the new law applied wherein the degrees of murder are consolidated, and the punishment for murder upon express malice was authorized to be ameliorated by the jury, yet wher.e the offense was committed under the old law of murder and the court submitted the same thereunder, and no objection was made at the proper time to the court’s charge, the contention of defendant that the court should have submitted the law as fixed by the last Legislature, wherein the degrees of murder are consolidated, etc., comes too late when made for the first time in this court, and it must be presumed that defendant elected to he tried under the law as it existed at the time of the commission of the offense. Following James v. State, 72 Texas Crim. Rep., 457, and other cases.
75 Tex. Crim. 382Quinn v. State (1914)
The opinion states the case.
75 Tex. Crim. 387Clay v. State (1914)
The opinion states the case.
75 Tex. Crim. 390Goldstein v. State (1914)
1. —Receiving Stolen Property—Status of Witness—Rule Stated. The facts and law existing at the time of the trial, and not at the time of taking the depositions, must be looked to ordinarily, to determine the competency of the evidence. Following Webster v. Mann, 56 Texas, 119, and other cases. 2. —Same—Conviction for Felony—Other Jurisdictions. The question of whether a conviction for a felony in another State will render a person incompetent as a witness in this State is governed by statute, and the words, “or in any other jurisdiction,” in the Code embraces within its terms judgments of conviction had in other States of the Union. Following Pitner v. State, 23 Texas Grim. App., 366, and other cases. 3. —Same—Common Law Rule—Foreign Jurisdiction. At common law, and on general principles of jurisprudence, when not controlled by express statute giving effect within the State which enacts it to a conviction and sentence in another State, such conviction and sentence can have no effect by way .of penalty or of personal disability or disqualification beyond the limits of the State in which the judgment is rendered. Following Missouri Ry. Co. v. Dubord, 21 Texas Civ. App., 691. .4.—Same—Rule Stated—Witness Incompetent, When. A judgment of conviction for a felony in a foreign State will render a person an incompetent witness in a criminal action in this State when the following facts are shown: that the person has been finally convicted of an offense in a foreign State; that the offense of which he was convicted was a felony under the laws of the State in which he was convicted, and that such an offense would be a felony under the laws of this State if committed within its bounds. 5.—Same—Best Evidence—Judgment of Conviction. The best evidence of such a state of case would be a copy of the indictment and final judgment of conviction properly certified, together with a copy of the laws of that State showing that such acts constitute a felony under the laws of such State; we would not be understood, however, in saying that other legitimate evidence could not be adduced to prove such facts or that they could not be proven by secondary evidence, if no objection was made. 6. —Same—Case Stated-—Felony—Conviction—Competency of Witness— Reproduction of Testimony. Where, upon trial of. receiving stolen property, the defendant contended that the testimony of the main State’s witness taken at a former trial was not admissible because the witness was now confined in the penitentiary in the State of California under a judgment of conviction in said State, but the evidence did not show or tend to show for what offense the witness was convicted or that the same was a felony under the laws of the State of California, and it was manifest by the record -that the witness was permanently beyond the jurisdiction of the court, there was no error in permitting the reproduction of the testimony of said witness at a former trial. 7. —Same—Evidence—Theft—Embezzlement. Where, upon trial of receiving stolen property, the defendant objected to the evidence because the person who stole the property obtained the possession thereof under circumstances that would constitute embezzlement instead of theft, but the evidence showed that the thief obtained the possession of the alleged property without the knowledge and consent of the owner, this would raise the issue of theft pure and simple, and there was no error. 8. —Same—Evidence—Thief—Persons Receiving Stolen Property. Upon trial of receiving stolen property, all evidence which would have been admissible on the trial of the alleged thief, to show that he was guilty of theft, was admissible on the instant trial to show that the goods delivered to the defendant were stolen goods and that he knew this at the time. 9. —Same—Sufficiency of the Evidence. Where, upon trial of receiving stolen property, the evidence was sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error.
75 Tex. Crim. 396Scott v. State (1914)
The opinion states the case.
75 Tex. Crim. 401Bell v. State (1914)
1. —Perjury—Indictment—Material Allegations. As a general rule, an indictment for perjury must not only show conclusively, hut should charge affirmatively, that the testimony given by the defendant and alleged to be false was material to the issue -on the trial of which he was sworn; but where the materiality of the evidence alleged to be false is shown by the nature of the case, no express averment of jts materiality is necessary. Following Bullen v. State, 33 Texas Crim. Rep., 551, and other cases. 2. —Same—Case Stated—Indictment—Perjury. Where the indictment for perjury, taking all the allegations together, did not sufficiently show that what defendant testified to was material to the issue to supply the necessary allegations that what he testified to was material to the issue, the same was fatally defective. Following McMurtry v. State, 38 Texas Crim. Rep., 521, and other cases. 3. —Same—Form of Indictment—Omission. Attention is called of judges and prosecuting attorneys to the omission in Judge Wilson’s Form Book, sec. 135, p. 71, 4th ed., that in an indictment for perjury it must be alleged that defendant’s testimony or statement was material to the issue, and also Judge White’s Ann. Penal Code, for the same omission. 4. —Same—Indictment—Immunity—Perjury. While under the Penal Code a conviction for the violation of certain articles in the Code may be had upon the unsupported evidence of an accomplice who shall be immune from prosecution for said offense, this would not protect him from a prosecution for perjury. 5. —Same—Specific Offense—Perjury—Indictment. In an indictment for perjury, it is not essential that the indictment shall charge the specific offense which the grand jury were investigating. Following McDonough v. State, 47 Texas Crim. Rep., 227, and other cases. Distinguishing Weaver v. State, 34 Texas Crim. Rep., 554. 6. —Same—Gaming Statutes—Change of Law—-Perjury—Indictment. Our gaming statute has been materially changed since the rendering of the opinion in the case of Weaver v. State, 34 Texas Crim. Rep., 554, the indictment in that case being held bad because the false testimony did not embrace any offense. It is now an offense to play cards whether anything is bet thereon or not at any place except a private residence occupied by defendant, and where the indictment for perjury based upon the false testimony of defendant that he had not played at any game of cards at any place other than a private residence, etc., alleged this, -the indictment on that ground was sufficient. 7. —Same—Indictment—Grand Jury. Where it clearly appeared that the grand jury restricted their investigations to card playing in the county of the prosecution only, the contention that the indictment was bad because the grand jury did not so confine' their investigations is untenable. <9 8. —Same—Innuendo—Indictment for Perjury. Where, upon trial of perjury, it was alleged that defendant testified falsely that he had never played at a game of cards in the last two years, the same was sufficient on innuendo as to what defendant meant thereby, as alleged in the indictment. Following Donahoe v. State, 14 Texas Crim. App., 638. 9.—Same—Indictment for Perjury—Place and Time. In an indictment for perjury based upon the false testimony of the defendant before the grand jury that he did not play at any game of cards, etc., it was not necessary to allege the places and several times he played such game, nor that he did not know that they, were not in a private residence occupied by a family; this was a matter of proof.
75 Tex. Crim. 409Swilley v. State (1914)
1.—Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. 3.—Same—Continuance—Want of Diligence. Where the application for continuance was a second application for the same witness and was wholly insufficient to show diligence, there was no error in overruling same. Davidson, Judge, dissenting. 3.—Same—Continuance—Case Stated—Consent—Want of Diligence. Where, upon trial of murder, appellant’s contention was that the diligence of the State to secure the absent witness was sufficient in law and inured to his benefit, in his motion for new trial, which the State contested, and the record showed that the application was the second for the same witness, and that the trial court was justified in his conclusion that the witness was absent with the consent of the defendant by reason of the conduct of his counsel, and also showed a want of diligence in procuring the attendance of the absent witness or his deposition, and it furthermore appeared that there was no reasonable expectation of procuring the absent testimony at the next term of the court, there was no error in overruling the application. Following Cocker v. State, 31 Texas, 498, and other eases. Davidson, Judge, dissenting.
75 Tex. Crim. 416Martinez v. State (1914)
1.—Murder—Circumstantial Evidence—Elag—Newspaper Manifesto. Where, upon trial of murder, it was necessary for the State to show that the defendant was a member of an armed band who in their attempt of an armed invasion into the Republic of Mexico incidentally killed deceased and committed other outrages upon the sheriff and his posse before they could be arrested, there was no error in permitting the State, in order to prove the conspiracy, to introduce in evidence a certain flag carried by one of the party and a certain newspaper manifesto, and other articles of war which were found in their camp. S.—Same—Rule Stated—Circumstantial Evidence. Circumstantial evidence is admissible to prove conspiracy from the very nature of the case, and where, upon trial of murder, defendant’s connection with the conspiracy was not admitted, there was no error in permitting the State to introduce testimony of the different facts going to show a conspiracy to invade the Republic of Mexico by an armed force; of which defendant was a member and pending which the deceased was killed. 3. —Same—Buie Stated—Great Latitude Allowed. In the reception of circumstantial evidence, great latitude must he allowed, and it is no objection that the evidence covers a great many transactions and extends over a long period of time. 4. —Same—Evidence—Conspiracy—Buie Stated. If it be shown that several have combined together for the same illegal purpose, any act done by one of them in pursuance of the original plan and with reference to the common object is, in contemplation of law, the act of all, and is admissible in evidence. Following Atkinson v. State, 34 Texas Grim. Bep., 424, and other eases. 5. —Same—Evidence—Intent—Collateral Facts. Where the guilt of a party depends upon the intent, purpose or design with which an act is done, or upon his guilty knowledge thereof, collateral facts in which he bore a principal part may be examined into for the purpose of establishing such guilty intent, design, purpose or knowledge. 6. —Same—Common Design—Conspiracy—Buie Stated. Although the fraudulent and corrupt combination—the common design— is the essential element, it is not necessary to prove that the defendants came together and actually agreed in terms to have this common design and to pursue it by common means and so carry it into execution, if their acts and the means used, one performing one part of an act, and another another part of the same act, shows a conspiracy, the same is admissible in evidence. Following Mason v. State, 31 Texas Grim. Bep., 306, and other cases. 7. —Same—Conspiracy—Exploded Doctrine—Conspiracy. The ancient doctrine that a conspiracy must first be established ipso facto before proof of acts and declarations of the individual conspirators are admissible against each other is now exploded. Following Smith v. State, 21 Texas Grim. App., 107, and other cases. 8. —Same—Case Stated—Conspiracy—Circumstantial Evidence. Where, upon trial of murder, the evidence showed that the defendant and others had combined and armed themselves for an armed invasion into the Bepublie of Mexico during which, in an effort of the sheriff and his posse to arrest the defendant, they captured two of his posse and incidentally killed one of them after many acts of torture, etc., there was no error in permitting the State to introduce testimony as to the articles of war found in the camp of the defendants, together with a certain written manifesto as to their intention in carrying out their conspiracy, and all the circumstances and what each of the conspirators said and did from the time of their discovery by the sheriff’s posse until their arrest. 9. —Same—Evidence—Confession. Where defendant’s co-defendant, when arrested, told the officers where the defendant and others could be found, and they were found as pointed out by said statement, there was no error in admitting same in evidence. 10. —Same—Evidence—Clothes of Deceased. Where, upon trial of murder, the hat worn by the deceased and the rope with which he was tied, and other articles connected therewith, were introduced to aid in demonstrating the manner and mode of the homicide and the position deceased was in at the time, there was no error. 11. —Same—Evidence—Handcuffs—Co-defendants—Discretion. Upon trial of murder, where defendant and others were shown to have conspired together for an armed invasion into the Bepublic of Mexico, p'ending which the deceased was killed by them, and defendant’s identity and that of his companion was an issue in the case, there was no reversible error to have the co-defendants brought into court, although they were handcuffed at the time, it not appearing from the record that the defendant was brought into court hándcuffed, or that the court acted beyond ordinary prudence and discretion. 12. —Same—Charge of Court—Principals. Where, upon trial of murder, the court’s charge on principals was applicable to the facts, and the verbal errors pointed out by defendant’s objection were corrected, there was no error, and the contention that the court should have used the. very language of article 78 of' the Code, defining principals, is untenable. 13. —Same—Charge of Court—Objections. Where the complaints of the charge of the court were not made during the time of trial, they came too late to be considered on appeal. 14. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sufficiently sustained the conviction under a proper charge of the court, there was no reversible error. Davidson, Judge, dissenting. 15. —Same—Case Stated—Conspiracy—Charge of Court. Where, upon trial of murder, the evidence showed that the killing grew out of the general conspiracy between defendant and others to enter the -Republic of Mexico by an armed invasion, and that the killing was incident to and so connected with said general conspiracy in a way that if defendant was proven to be a party to the general conspiracy, it would be under such circumstances as to render him responsible for the death of the deceased equally with those who in fact fired the shots, an objection to the charge of the court not made at the time it was submitted that the court erred in authorizing a conviction if there was a specific conspiracy to take the life of the deceased, comes too later after trial.
75 Tex. Crim. 434Beach v. State (1914)
1.—Election Frauds—False Canvass—Indictment. Where, upon trial of wilfully making a false canvass of the votes cast at a city election for mayor, the indictment failed to allege the names of the voters, so falsely called, or to allege that their names were unknown, the same was fatally defective. 3.—Same—Evidence—Ballot Box—Names of Voters. Upon trial of unlawfully and wilfully making a false canvass of the votes cast at a city election for mayor, it -was reversible error to introduce in evidence and open the ballot box containing the names of the voters at the election mentioned in the indictment. Harper, Judge, dissenting. Prendergast, Presiding Judge, expressing no opinion. 3. —Same—Case Stated—Ballot Box—Election Contest. Where, upon trial of unlawfully and wilfully making a false canvass of the votes cast at a city election for mayor, it was inferable from the record that there had been a contest over the offices prior to the time of the indictment, and it appeared that the ballots had not been destroyed, but had been passed from hand to hand and the ballot box had been locked in the death cell of the county jail, and it was from this receptacle that the ballot box was brought and opened on defendant’s trial and introduced in evidence. Held, that this was not an election contest, and the ballots could not be introduced in evidence on the instant trial. Following State v. Taylor, 119 S. W. Rep., 373, and other cases. Harper, Judge, dissenting. Prendergast, Presiding Judge, expressing no opinion. 4. —Same—Witnesses—Accomplices—Conversation. See opinion calling attention to fact that the judges of the election and other officers, who assisted defendant in holding the election, were used as witnesses and testified to conversations had among themselves in regard to the manner of defendant’s calling the names of the ballots for the tabulating clerk, by which they placed themselves in the attitude of accomplices, etc.
75 Tex. Crim. 440Witty v. State (1914)
1.—Murder—Sufficiency of the Evidence—Insanity. Where, upon trial of murder, the defendant interposed a plea of insanity as his only defense, and the evidence showed beyond a reasonable doubt that the defendant was sane at the time he killed the deceased, although there was much evidence to the contrary, a conviction of murder in the second degree was sustained. 3.—Same—Charge of Court—Charge Considered as a Whole. It is elementary that in considering attacks upon the charge of the court and his refusal to give requested charges, the whole charge of the court must be considered and not separate and distinct paragraphs of it alone. 3. —Same—Charge of Court—Extenuation—Insanity—Murder in Second Degree. Where one paragraph of the court’s charge was attacked because it did not state what facts or circumstances extenuated the homicide, and failed to state the elements of murder in the second degree and wholly ignored the issue of insanity as a part of the definition of second degree murder, and charged that malice was implied from the fact of an unlawful killing, but the record showed on appeal that when the different paragraphs of the court’s charge ' were considered as a whole, the same correctly applied the law, there was no reversible error. Hollowing Christian v. State, 71 Texas Crim. Rep., 566. 4. —Same—Charge of Court—Insanity—Right of the State—Burden. Where, upon trial of murder, the defendant interposed a plea of insanity, and the theory of the State was that the defendant was sane when he killed the deceased, the State had a right to have that theory submitted to the jury for a finding, and where the court’s charge was in all respects proper and required the jury that they could not convict defendant unless they believed he was sane at the time of the killing beyond a reasonable doubt, there was no reversible error; the burden in the instant case being on the State. Following Cooper v. State, 72 Texas Grim. Rep., 250. 5. —Same—Charge of Court—Insanity-—Burden—Former Decree. Where, upon trial of. murder, defendant’s sole plea of defense was insanity, and the presumption was raised by a former decree that defendant was insane at the time he shot and killed the deceased, and the court instructed the jury that the burden of proof was on the State to show by the evidence beyond a reasonable doubt that defendant was sane at the time he killed deceased, and the court’s charge, considered as a whole, was a most admirable presentation of the law applicable to the facts in the case, and he y submitted besides the requested charges of the defendant, which together with the main charge made it a charge really in favor of defendant, and he was convicted of murder in the second degree upon sufficient evidence that he was sane at the time of the killing, there was no reversible error. Following Hunt v. State, 33 Texas Grim. Rep., 352, and other cases. 6. —Same—Evidence—Other Transactions—Insanity. Where, upon trial of murder, the defendant interposed a plea of insanity and introduced evidence thereunder attempting to show that he was insane at the time of the killing, there was no error in permitting the State to attempt to show that defendant was sane at the time of the killing and introduce testimony of his former acts and conduct, including prior assaults and batteries iipon different parties and that he harbored lewd women, and that his acts in connection therewith showed that he was not insane; this testimony being properly limited to the issue of insanity. 7. —Same—Rulo Stated—Common Law Insanity. The common law rule of evidence in respect to the proof of insanity shall be observed in all trials where the question is in issue, under article 40, Penal Code, and any and all conduct of the person claiming insanity is admissible in evidence. 8. —Same—Evidence—Insanity—Facts and Circumstances—Case Stated. Where defendant was indicted and tried for murder, and pleaded insanity, and introduced witnesses who testified to many facts and circumstances of what he did and said from the time he was born up to the killing, including the mental and physical condition of his parents and his collateral kin, and claimed that he was acting under the insane delusion that the deceased had immediate designs upon his life, etc., there was no error in permitting the State to show that he was not insane at the time of the killing, but sane, and to introduce testimony of his acts and deeds for several years prior to the homicide and up to the same, said testimony being properly limited to the issue of insanity. 9. —Same—Evidence—Reference to Former Conviction. Where, upon trial of murder, the State’s counsel in his examination of a witness inferentially referred to defendant’s former conviction, which was immediately withdrawn from the jury by the court, etc., and in the court’s main charge thereafter, there was no reversible error. Following Baines v. State, 43 Texas Grim. Rep., 490, and other cases. 10. —Same—Manslaughter—Insane Delusions—Adequate Cause—Charge of Court—Waiver. Where, upon trial of murder, defendant pleaded insanity and submitted requested charges on that issue, to the effect that if defendant’s mental condition was such that he did not know the character of his acts, etc., that he should be acquitted, he thereby cut himself off of a charge on manslaughter, even if he had. heen entitled thereto; besides, the contention that any insane delusions entertained by the defendant that deceased' designed to kill Mm, etc., would not constitute adequate cause. 11.—Same—Manslaughter—Charge of Court—Insanity. Where, upon trial of murder, defendant pleaded insanity, which the court submitted in his main charge and by defendant’s requested charges, and the evidence did not raise adequate cause or any of the elements of manslaughter, there was no error in the court’s failure to charge thereon. Hollowing Tread-way v. State, 65 Texas Crim. Rep., 208, and other eases. 18.—Same—Insane Delusions—Manslaughter—Charge of Court—Insanity. Where, upon trial of murder and a conviction of murder in the second degree, the defendant pleaded insanity, which the court properly submitted in his main and requested charges, the contention that the court below should have submitted manslaughter on the issue of insane delusions entertained by the defendant of designs of deceased upon his life is untenable and not the law. 13.—Same—Insanity—Rule Stated—Ho Degrees of Insanity. There is no_ grade of insanity, and a party can not be half sane and half insane; he is either sane or insane, and insanity never operates as mitigation of a homicide, as it goes only to the punishment and not to the character of the act itself; its only effect is to exempt the slayer from the punishment prescribed for the homicide, without exonerating him from the charge of committing it.
75 Tex. Crim. 457Nesbitt v. State (1914)
Tried below before the Hon. Joe A. P. Dickson. Appeal from a conviction of aggravated assault; penalty, a fine of $300 and sixty days confinement in the county jail. The opinion states the case.
75 Tex. Crim. 461Hicks v. State (1913)
1.—Murder—Bystander’s Bill of Exceptions. A bystander’s bill of exceptions proven up and filed thirty-eight days after the adjournment of the trial court, without an order of extension after the first thirty days had expired, can not be considered by this court. 3.—Same—Statement of Facts—Bills of Exception—Filing. A statement of facts of the evidence of the trial may be filed at any time within ninety days after the adjournment of the court, or after the overruling of the motion for new trial in case the term of court lasts longer than eight weeks, without any order of the court to that effect. Bills of exception are allowed to be filed within thirty days after said time without any order of court, or thereafter if the time be properly extended; provided, the same does not exceed ninety days. 3. —Verdict by Lot—Motion for New Trial—Supporting Affidavits. Where the defendant in his amended motion for new trial alleged that the verdict of the jury was arrived at by lot, but the same was not sworn to by the defendant or anyone else, and was not supported by the independent affidavit of anyone whomsoever, the same can not he considered by the trial court, and the court’s action in overruling same, and refusing to hear evidence thereon, will not be reviewed on appeal Following Byrant v. State, 69 Texas Grim. Rep., 457, and other cases. Davidson, Judge, dissenting. 4. —Same—Attorney and Client—Affidavit. An affidavit attacking the verdict of the jury can not be considered by this court, and is a nullity, even though sworn to, if the affidavit is made before defendant’s attorney. Following Maples v. State, 60 Texas Grim. Rep., 169, and other cases. 5. —Same—Evidence—Husband and Wife—Cross-examination—Impeachment. Where, upon trial of murder, the evidence developed that defendant’s wife had formerly been married to deceased' and had had two children while married to the latter, over whose possession there arose a controversy between deceased and his former wife, etc., and defendant introduced his said wife on said trial who testified that the deceased was the father of both of her said children, the older of which was horn after wedlock with deceased; whereupon the State was permitted on cross-examination to ask defendant’s wife if defendant, and not deceased, was the father of her older child, and if she had not made the statement that deceased was not the father thereof, which she denied, whereupon the State was permitted to show that she did make such statements, there was no reversible error. 6. —Same—Argument of Counsel—Harmless Error. Where there was no controversy that the defendant killed the deceased, or as to the immediate facts of the killing, there was no reversible error in the argument of State’s counsel that the State had proved the killing, etc., by several good witnesses and that defendant had not contradicted their testimony, etc., and the error, if any, was harmless. 7. —Same—Letters—Practice—Retirement of Jury. Where, upon trial of murder, some letters written by the deceased to the wife of the defendant were introduced in evidence, disclosing that deceased wished her to abandon defendant and live with deceased in illicit intercourse, all of which were read in the presence of the jury and fully discussed, there was no reversible error in the court’s disregard of defendant’s request that the jury take these letters with them in their final deliberations. 8. —Same—Statutes Construed. Article 751, Code Criminal Procedure, providing that the jury on their retirement may take with them all the original papers, etc., is simply directory and not mandatory. 9. —Same—Charge of Court—Murder in Second Degree—Self-defense. Where appellant contended that the court’s charge on murder in the second degree required that they should convict him of that degree of murder, unless they found him not guilty under his plea of self-defense, and thereby eliminated manslaughter, but it appeared from the record on appeal that when the charge of the court was construed as a whole, as it should be in all cases, such complaint was untenable; there was no reversible error on that ground. Following Martinez v. State, 30 Texas Crim. App., 129, and other cases. 10. —Same—Charge of Court—Exceptions—Article 743. Where appellant complained of the court’s charge on murder in the second degree, but it appeared from the record that he took no . exception whatever to said charge. of the court before the trial was completed, and did not complain thereof except in his amended motion for new trial, the same can not be reviewed on appeal, and there was no error under article 743, Code Criminal Procedure. 11. —Same—Manslaughter—Self-defense—Charge of Court. Where, upon trial of murder, the court’s charge on murder in the second degree, on self-defense and manslaughter were submitted m separate and complete paragraphs and were in all respects sufficient, when the court’s charge was considered as a whole, there was no reversible error. 18.—Same—Form of Charge—Murder in Second Degree. While it is true that this court has laid down and approved a form of charge on murder in the second degree in cases where self-defense and manslaughter are raised by the evidence, yet this court does not hold that where these defenses are not excepted in the particular paragraph of the court’s charge that the same would be necessarily erroneous where the application of the principle is set out in other portions of the court’s charge. Distinguishing' Best v. State, 58 Texas Crim. Rep., 327, and other cases. 13.—Same—Self-defense—Charge of Court—Words and Phrases. Where, upon trial of murder, the court submitted a proper charge on self-defense when taken as a whole, a complaint that said charge merely laid down abstract propositions of law, and did not apply the law to the facts or cover the questions of apparent danger from defendant’s standpoint, and the phrase used in the charge “words coupled with acts” could not have injured defendant, there was no reversible error; besides, self-defense was not in the case. Following Jones v. State, 63 Texas Grim. Rep., 394. 14. —Same—Threats—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of threats, there was no error in the court’s failure to charge thereon. 15. —Same—Manslaughter—Charge of Court—Insult to Female Relative. Where, upon trial of murder, the defendant claimed insulting words and acts by the deceased towards his wife, and the State claimed that defendant killed deceased over a controversy as to the custody of a minor child of the deceased, and the court in his charge on manslaughter followed substantially, if not literally, the statute on the subject and properly applied the law to the evidence, there was no reversible error. 16. —Same—Excessive Verdict. Where, upon trial of murder, the defendant was convicted of murder in the second degree and his punishment assessed at nineteen years imprisonment in the penitentiary, and the evidence fully sustained the verdict of the jury, the same was not excessive. 17. —Same—Mistake of Facts—Practice on Appeal. Where, upon rehearing, it appeared that some mistake of facts were made in dictation in the original opinion, but the same were immaterial, there was no reversible error. 18. —Same—Verdict by Lot—Motion for Mew Trial—Common Law. Even if it were granted that the statute as to a motion for new trial alleging a verdict by lot did not in express language require the motion setting up matters extrinsic the record to he sworn to, then the rule of the common law, as provided under article 26, Code Criminal Procedure, must be applied and govern, and such motion must be supported by affidavit or the same will not be considered by the trial court or this court. Following Gordon v. State, 29 Texas Grim. App., 410, and other cases. Davidson, Judge, dissenting. 19. —Same—Attorney and Client—Affidavit. Affidavits made by the defendant before his attorney and attached to a motion for new trial or contesting the same, can not he considered. Following Patterson v. State, 63 Texas Grim. Rep., 297, and other eases. 20. —Saíne—Motion for Mew Trial—Written Pleadings. Appellant’s contention that the lower court should take as confessed his motion for new trial, unless expressly contested by State’s counsel by written pleadings, even if the motion alleges an extrinsic fact attacking the verdict of the jury, is a doctrine that can not be sanctioned by this court. 21. —Same—Verdict by Lot—Abandoned Agreement. Where defendant complained of a verdict by lot, but it appeared from the record on appeal that the jury had abandoned their previous agreement to abide by the result of their balloting by lot, the verdict would be valid. Following Cravens v. State, 55 Texas Grim. Rep., 519. 22. —Same—Stating Facts in Opinion—Mistake in Stating Facts. Where it appeared on motion for rehearing that this court had inadvertently used the words, “prior to,” in referring to the marriage of deceased and the paternity of the older child, when, instead, the court should have used the word “after, etc,” this mistake is now here corrected. 23. —Same—Sufficiency of the Verdict—Murder in Second Degree—Stating Facts in Opinion. Where this court did not undertake to state all the evidence or its details, but merely stated some of the conclusions, which the whole evidence authorized, and if any mistakes in stating the facts were made in the original opinion, they could not have affected the decision of the ease, and the testimony showed murder in the second degree, of which defendant was convicted, the fact that the evidence also raised the issue of manslaughter, all of which was submitted by the court under a proper charge, would not be a cause of reversal, and the judgment must be affirmed. 24.—Same—Manslaughter—Murder in Second Degree—Charge of Court. Two requisites are necessary to constitute manslaughter; first, sudden passion; second, that that sudden passion must arise from an adequate cause, and that in order to show that an unlawful homicide is manslaughter, and not, at least, murder in the second degree, such homicide must be committed under the immediate influence of sudden passion arising from an adequate cause; and where the court correctly applied this principle to the facts, and the jury convicted defendant of murder in the second degree, there was no reversible error. Following Puryear v. State, 56 Texas Crim. Rep., 231, and other cases.
75 Tex. Crim. 491Shamblin v. State (1914)
The opinion states the case.
75 Tex. Crim. 499Bodkins v. State (1914)
The opinion states the case.
75 Tex. Crim. 506Martin v. State (1914)
The opinion states the case.
75 Tex. Crim. 507Waits v. State (1914)
The opinion states the case.
75 Tex. Crim. 508Jones v. State (1914)
The opinion states the case.
75 Tex. Crim. 509Lewis v. State (1914)
The opinion states the case.
75 Tex. Crim. 529Demarco v. State (1914)
The opinion states the case.
75 Tex. Crim. 531Wade v. State (1914)
1.—Local Option—Evidence—Limitation. Where, upon trial of a violation of the local option law, the testimony Which defendant offered, and which was rejected, would have tended to show that the offense is clearly barred by the statute of limitations, the same is reversible error. 8.—Same—Deed—Trade—Date of Offense. Where the date of the offense could only be established as to when a certain sale or trade of real estate took place, and the State introduced the deed thereof and refused to admit testimony as to when the trade was made, which oeeured before the deed was made, the same was -error. 3. —Same—Evidence—Date of Offense. Where the date of the offense became an issue, the defendant should have been permitted to cross-examine State’s witness as to what he told defendant’s attorney with reference to such date, and to lay the predicate for his impeachment. 4. —Same—Evidence—Bias—Prejudice. It is always permissible to show the bias, prejudice, hostility, etc., of a witness against the defendant, and it was error not to permit the defendant’s counsel to show this. 5. —Same—Limitation—Sufficiency of the Evidence. Where the evidence introduced would not show limitation of the offense, and was sufficient to sustain the conviction, there was no error on that ground; although the excluded evidence might have shown the contrary.
75 Tex. Crim. 531Renteria v. State (1914)
The opinion states the case.
75 Tex. Crim. 534Collins v. State (1914)
The opinion states the case.
75 Tex. Crim. 537Baskins v. State (1914)
1. —Abandonment—Seduction—Marriage—Offense Defined. The gist of this offense is that if without the woman’s fault, such as would entitle defendant to a divorce: 1, he shall abandon her; 2, or refuse to live with her; 3, or shall be so cruel to her as to compel her to leave him; 4, or shall be guilty of such outrages of cruelty towards her as -to make their living together insupportable, thereby leaving her; 5, or under the same circumstances, forcing her to leave him, under these two, and live apart from each other, he is guilty of abandonment. 2. —Same—Indictment—Beginning of Prosecution. Where, upon trial of abandonment after seduction and marriage, the indictment alleged among other things that while said defendant was under legal arrest following the filing of a complaint and before a proper grand jury had been legally organized, etc., to find an indictment charging defendant with seduction, and before he had pleaded to said indictment married prosecutrix, etc., and afterwards unlawfully abandoned her, etc., a motion to quash the indictment on the ground that the filing of the complaint and issuing the warrant of arrest was insufficient to amount in law to the beginning of a proseeution for seduction, but that an indictment only is in law the beginning of a prosecution, the same was correctly overruled. 3. —Same—Beginning of Prosecution—Complaint—Arrest. Under the statutes, the making and filing of a complaint before a justice of the peace charging the accused with a felony, the issuance of a warrant thereon by the magistrate, placing it in the hands of'a peace officer and the arrest of the accused thereunder is the beginning of a prosecution, under article 1450, Penal Code. 4. —Same—Statutes Construed. The fact that the statute prescribes that the marriage of the parties takes place before the defendant pleads to the indictment, must be considered with reference to what the law was aforetime, as, under the former law, the defendant in good faith could offer marriage to the female seduced at any time before the verdict was rendered, while, under the new law, he must do so after prosecution has begun before he pleads to the indictment. 5. —Same—Indictment—Justice Precinct—Surplusage. The fact that the indictment alleged that the complaint had been filed in the Justice Court of Precinct No. —, of the county of the prosecution, thus omitting the number of the precinct, did not vitiate the same, as the words, “Precinct No. —,” was surplusage. Following Goodwin v. State, 70 Texas Crim. Rep., 600, and, the indictment being sufficient in other respects, there was no error in overruling a motion to quash. 6. —Same—Allegation—Oral Proof—Complaint—Warrant—Evidence. Where, upon trial of abandonment after seduction and marriage, the indictment alleged the filing of a complaint before a justice of the peace and the issuance of a warrant of arrest thereon, it was necessary that the complaint and warrant'or properly certified copies thereof should have been introduced in evidence, or their loss accounted for, and, without this, the introduction of oral testimony as to the contents of said complaint and warrant was- reversible error. 7. —Same—Evidence—Complaint—Warrant—Pile Mark. Upon trial of abandonment after seduction and marriage, there was no error in permitting the State to show by oral testimony the existence of a complaint and warrant of arrest, although the same bad not been filed and docketed, and the warrant was returnable to another justice of the peace than the one who issued it, but the complaint and warrant or properly certified copies thereof were the best evidence, and before their contents could be proved by oral testimony, their loss, etc., should have been accounted for. 8. —Same—Evidence—Relevant Testimony—Cruel Treatment. Upon trial of abandonment after seduction and marriage where the indictment had left the number of the justice precinct in which the complaint was filed for seduction blank,' there was no error in permitting the State to prove the number of said precinct, nor to permit defendant’s wife to testify under the statute as to the ill-treatment of her by defendant’s mother and other members of his family in his absence, as -the same was brought to his knowledge and tended to show that his wife was forced to leave him because thereof. 9. —Same—Accomplice—Charge of Court—Witness—Husband and Wife. Under the abandonment statute, article 1450, Penal Code, the female seduced and subsequently married and abandoned is a competent witness against the defendant, yet there was no error in the court’s charge requiring that her testimony on the subject of seduction must be corroborated, as she was an accomplice therein, and where he did so in substantial accordance with the statute, there was no error. 10. —Same—Sufficiency of the Evidence—Charge of Court. Where, upon trial of abandonment after seduction and marriage, the evidence was sufficient to authorize and require the court to submit the issue: I, that defendant had abandoned his wife; 2, that he had refused to live with her; 3, that he was .guilty of such cruelty or outrages towards her as to make their living together insupportable, etc., the contention that the evidence was insufficient on these issues to authorize a charge of the court thereon is not well taken. 11. —Same—Seduction—Charge of Court—Conditional Promise. Where defendant contended that the evidence did not show seduction, but only a conditional promise of marriage, but the prosecutrix showed that he seduced her as denounced by the statute and other testimony corroborated her testimony, the court correctly submitted this issue under a proper charge. 12. —Same—Abandonment—Cruel Treatment—Charge of Court—Divorce Law1. Where, upon trial of abandonment after seduction and marriage, the court instructed the jury that if the defendant unlawfully abandoned prosecutrix after marriage, etc., or unlawfully refused to live with her, or that he was guilty of such 'outrages and cruelty towards her as to make their living together insupportable, thereby forcing her to leave him and causing them to live apart from each other, to find him guilty of abandonment, etc., the same was sufficient without defining what would constitute abandonment, outrages and cruel treatment under the divorce law, as this was a question for the jury under the evidence under the charge given to them in general terms for a finding. 13. —Same—Buie Stated—Function of Court—Function of Jury. It has long been the settled policy of the laws of this State to keep separate and distinct, and to define accurately, the respective functions of the judge and of the jury in the trial_ of cases, both civil and criminal, and the judge shall not, in any case, charge or comment on the weight of the evidence, and there was, therefore, no error in the court’s failure to pick out certain facts showing or tending to show acts of outrages or cruelties or abandonment, as this would have been a charge on the weight of evidence, in a trial of abandonment after seduction and marriage. 14. —Same—Charge of Court—Temporary Absence of Defendant—Intention. In a trial for abandonment after seduction and marriage, it would be proper to charge the jury in substance that the temporary absence of defendant from his wife with her consent and without intention to abandon her would not authorize a conviction under the Abandonment Statute. 15. —Same—Charge of Court—Cruelty—Cause of Abandonment. Upon trial of abandonment after seduction and marriage, it would have been proper under the evidence that if prosecutrix abandoned the defendant without cause, he would not be guilty; yet, if his treatment of her and that of the members of his family, which was brought to his attention was, under all the circumstances, an act of cruelty, etc., which forced her to leave him, then he would be guilty of abandonment. 16. —Same—Charge of Court—Place of Abode—Husband and Wife. Where, upon trial of abandonment after seduction and marriage, the evidence showed that the parties resided with defendant’s family, who were guilty of outrages towards her, there was no error in refusing a special charge to the effect that the husband has the right to designate and fix the place of residence of himself and wife, etc., as such a rule had no application to the facts. 17. —Same—Minor—Husband and Wife—Case Stated. Where, upon trial of abandonment after seduction and marriage, the evidence showed that the defendant failed and refused to protect his wife and to provide for her, and the cruel treatment of the members of his family towards his wife was part of the scheme to drive her away from, him and force her to leave him, his contention that because he was under age and had to live with his parents, and that, therefore, he should be held guiltless of abandonment is' untenable.
75 Tex. Crim. 550Goode v. State (1914)
Appeal from the County Court of Franklin. Tried below before the Hon. J. J. Walker. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100.
75 Tex. Crim. 551Merkel v. State (1914)
The opinion states the case.
75 Tex. Crim. 558Guerrero v. State (1914)
The opinion states the case.
75 Tex. Crim. 562Johnson v. State (1914)
The opinion states the case.
75 Tex. Crim. 571Ranols v. State (1914)
The opinion states the case.
75 Tex. Crim. 572Wade v. State (1914)
The opinion states the case.
75 Tex. Crim. 573Carmicle v. State (1914)
The opinion states the case.
75 Tex. Crim. 575Latham v. State (1914)
The opinion states the case.
75 Tex. Crim. 611Ex Parte Hopkins (1914)
From Tarrant County. Original habeas corpus proceeding asking release from a warrant of arrest based upon a complaint that relator transported, carried and delivered intoxicating liquor from a territory where its sale is permitted to territory where its sale is prohibited by law. The opinion states the case.
75 Tex. Crim. 616Longmire v. State (1914)
The opinion states the case.
75 Tex. Crim. 643Castillo v. State (1914)
The opinion states the case.
75 Tex. Crim. 647Edwards v. State (1914)
1. —Murder—Charge of Court—First and Second Degree Murder—Manslaughter. Where, upon trial of murder, defendant was convicted of murder upon implied malice and his punishment assessed at five years imprisonment in the State penitentiary, the evidence on the part of the State showed a case of murder, and the issues of self-defense and manslaughter were also raised by the evidence upon which the court submitted a proper charge, there was no error in submitting the issues of murder in the first and second degrees. 2. —Same—Weight of Evidence—Charge of Court—Definition. Where, upon trial of murder, the court in his charge defining the same instructed the jury that where one person intentionally kills another, it depends upon the circumstances attending the killing whether the act is justifiable or not, or if not justifiable, the degree of his guilt, the same was not on the weight of the evidence under the facts of the case. S.—Same—Evidence—Impeaching Witness—Cross-examination of Witness. Where, upon trial of murder, one of the principal State’s witnesses gave material testimony against the defendant on the sharply contested and contradictory points in the case, the defense on cross-examination of said witness should have been permitted to show the prejudice of said witness against the defendant which grew out of an election for county clerk, wherein the witness was on one side of the question and the defendant on the other, in order to give the jury a chance to properly weigh the witness’ testimony against the defendant, and the same is reversible error. Following Roberts v. State, 74 Texas Grim. Rep., 150, and other eases. 4.—Same—Evidence—Bias of Witness. Upon trial of murder, where a witness gave important testimony in favor of the defendant, and the State was permitted on cross-examination to show that said witness was friendly to the defendant so as to bias him in his favor, the defense should have been permitted on redirect examination of the witness to show that the deceased and the witness were on the same side in a certain election for county clerk shortly before the homicide. 5. —Same—Evidence—Hearsay—Declarations of Third Party. Upon trial of murder, there was no error in not permitting certain witnesses for the defense to testify as to what the report was which a certain third party made about the homicide, and who was not a witness in the case. 6. —Same—Argument of Counsel—Rejoinder—Illustrations. Where, up oh the trial of murder, defendant’s counsel dwelled on the fact that defendant had a good reputation for peace, etc., and, therefore, would not have committed an unlawful killing, there was no reversible error in permitting State’s counsel in rejoinder to said argument to say that he had known of a minister of the Gospel, who had always borne an enviable reputation, committing a heinous murder after he was sixty years old, as this was simply emphasizing a point in argument, and was not an effort to get before the jury prejudicial facts, which are not permitted in argument. Following Hudson v. State, 44 Texas Grim. Rep., 251.' 7. —Same—Newly Discovered Evidence—Want of Diligence—Uncommuni- , cated Threats. Where defendant’s motion for new trial on the ground of newly discovered evidence alleged that the deceased had threatened the defendant, which threats were not communicated and which would have been admissible only on the question as to who began the difficulty which resulted in the killing of deceased by defendant, and it appeared from the record that the case had been several times continued and that other witnesses for the defense testified to similar threats, there was no error in overruling the motion on that ground. 8. —Same—Newly Discovered Evidence—Want of Diligence. Where defendant, in his motion for new trial on ■ the ground of newly discovered evidence, alleged that the absent witness would testify that immediately after the homicide he met the defendant, whose suspender was cut, hut it appared from the record that the ease had been pending for a long time and that the defendant was in possession of this fact and could have made proper inquiry of the witness, he did not show proper diligence; besides, other witnesses testified to the same fact. Following Carrico v. State, 36 Texas Grim. Rep., 618, and other cases. 9. —Same—Newly Discovered Evidence—Cumulative Testimony. Where defendant’s motion for new trial, on the ground of newly discovered evidence, disclosed that the absent testimony would only be cumulative in character and was not in fact disputed in the record, there was no error in overruling the motion.
75 Tex. Crim. 659Rhodes v. State (1914)
The opinion states the case.
75 Tex. Crim. 662McGrew v. State (1914)
The opinion states the case.