76 Tex. Crim.

Volume 76 — Texas Criminal Reports

161 opinions

76 Tex. Crim. 1Ex Parte McDowell (1914)
From Tarrant County. Original habeas corpus proceeding asking release from the officers of the State Industrial School for Boys. The opinion states the case.
76 Tex. Crim. 5Murff v. State (1914)
1.—Perjury—Indictment—Precedent. Where, upon trial of perjury, the indictment followed approved precedent and was in full accord with the statute, the same was sufficient. Davidson, Judge, dissenting. 8.—Same—Indictment—Death Penalty—Perjury—Statutes Construed. Upon trial of perjury, it is not necessary for the indictment to allege the result of the prosecution against the defendant in the original capital ease in which defendant testified, as under article 311, Penal Code, defendant did not suffer the death penalty, but was acquitted. 3. —Same—Indictment—Unintelligible—Record—Presumption. In the absence of a bill of exceptions presenting how the indictment was unintelligible, etc., the same can not be considered on appeal, and this court must assume that the court below ruled correctly in refusing to quash the indictment on this ground. 4. —Same—Indictment—Oath Administered—Deputy Clerk. A motion to quash the indictment, on the ground .that the same alleged that the oath administered to the defendant in the trial in which the alleged perjury arose was by the deputy clerk of that court, and that there is no such officer known to the law who is authorized to administer an oath, is untenable and is correctly overruled. ' 5.—Same—Term of Court—Indictment. In an indictment for perjury, it was wholly unnecessary to allege specifically at what term of the court the ease was tried in which the alleged perjury occurred; besides, this was alleged. 6. —Same-Indictment—Date of Offense—Limitation. There was no error in overruling a motion to quash the indictment for perjury because the indictment upon which defendant was tried for rape charged that offense to have occurred on January 19, 1913, and the statements attributed to and charged against the defendant as the basis of perjury was alleged to have been made by him in regard to a transaction occurring about February 13, 1913; as the proof is never limited to the particular day on which the offense is alleged to have been committed, as long as it is not barred by limitation. 7. —Same—Indictment—Materiality of Testimony. Where the indictment for perjury specifically alleged that each of the statements made by and attributed to defendant was material to the cause then upon trial, a complaint that it did riot do so and a motion to quash on that ground was correctly overruled. Davidson, Judge, dissenting. 8. —Same—Former Jeopardy, Plea of—Demurrer—Practice. Where defendant was tried for rape and acquitted, and a portion of the elements of that offense was that he had carnal intercourse with a female under the age of consent, and was afterwards charged with perjury in said rape case, where the question of the age of the female in the rape case was not an issue, and the acts which constituted the offense for which the former acquittal was had were not the very acts which constitute the offense of perjuty in the instant case, and the two indictments were so diverse as to preclude the same evidence from sustaining both, and the evidence which was required to support the second indictment would not have been sufficient to secure a legal conviction upon the first indictment, there was no error in sustaining a demurrer to defendant’s plea of former jeopardy.' Following Kain v. State, 16 Texas Grim. App., 282, and other eases. Davidson, Judge, dissenting. 9. —Same—Rape—Perjury—Former Jeopardy. Where, upon trial of perjury, defendant filed a plea of former jeopardy on the ground that he had been tried and acquitted for rape, and that, therefore, he could not thereafter be tried for perjury committed by him on that trial, the same was correctly stricken out on motion of the State. Following Miles v. State, 73 Texas Grim. Rep., 493, and other cases. Davidson, Judge, dissenting. 10. —Same—Bills of Exception—Granting Extension—Notice of Appeal— Jurisdiction—Nunc Pro Tunc. While it is generally the rule that notice of appeal suspends and arrests all proceedings in the trial court, yet where the judge had granted an order and entered it upon his docket allowing defendant thirty days additional time from that allowed by law to file bills of exception, which by mistake or oversight of the clerk was not entered on the minutes of the court, and in view of article 845, Revised Code Criminal Procedure, giving the trial court power and authority both in term time and in vacation to extend the time for filing bills of exception for not longer than ninety days after adjournment, or after sentence, where the. court continued in session longer than eight weeks, the order of the trial court could have been entered nunc pro tune, and the bills of exception will be considered by this court. A different question might arise where no order extending time of filing has been made. 11. —Same—Continuance—Want of Diligence—Discretion of Court. Where, upon trial of perjury, the application for a continuance showed a want of diligence, and that one of the absent witnesses was probably absent by the consent or procurement of the defendant, there was no error in overruling same. See opinion for discussion of application for continuance which is always addressed to the sound discretion of the court. 12. —Same—Stenographer’s Transcript of Evidence—Words and Phrases. Where, upon trial of perjury, the State was permitted to introduce the court stenographer who took down defendant’s testimony in the rape case in which he was alleged to have committed perjury, and permitted the stenographer to identify his transcript of questions and answers, and a controversy arose over the use of the word “hack” -by defendant as a witness in the rape case, there was no error in not postponing the trial for perjury and permitting defendant to get the twelve jurors in the rape case to testify on that point; the court having heard other testimony thereon, and there being no showing in the motion for new trial that any of the jurors would testify that defendant did not use said word. 13. —Same—Evidence—Deputy Clerk. Upon trial for perjury," the deputy clerk could testify -that he was such official without producing Ms appointment, etc. 14. —Same—Evidence—Indictment. Upon trial for perjury, the court properly permitted the clerk to produce and identify the indictment in the case in which the alleged perjury occurred, and also to permit the trial judge to testify that he presided at said trial and that defendant was arraigned and pleaded not guilty. 18.—Same—Evidence—General Reputation. Where, upon trial of perjury, the defendant introduced several witnesses to prove up his general reputation for truth and veracity, whereupon the State’s counsel upon cross-examination propounded some irrelevant questions to which the court promptly sustained objections, there was no reversible error. 16. —Same—Evidence—Impeaching Testimony—Rule Stated. It is well settled in this State that any witness can be impeached by showing a conviction within a reasonable time for any felony, or .even any misdemeanor involving moral turpitude, but in no event can testimony be introduced to prove guilt, or specific acts, for any such purpose. 17. —Same—Evidence—Husband and Wife—Cross-examination. Where, upon trial of perjury, defendant introduced his wife as a witness, whereupon the State, on cross-examination, went to such an extent as to go beyond the questions asked her in the examination in chief, to which objections were made, whereupon the cross-examination was stopped and the testimony withdrawn, which was not material, there was no reversible error. Following Miller v. State, 31 Texas Grim. Rep., 609, and other eases. 18. '—Same—Evidence—Confessions—Statutes Construed. Where, upon trial of perjury growing out of defendant’s testimony in a previous trial for rape in which defendant was acquitted, the court admitted in evidence a confession of defendant while under arrest for the rape case admitting that he had carnal intercourse with the female with her consent, and which confession was not in writing and defendant had not been warned as required by law under article 810, Code Criminal Procedure, that the statement might be used as evidence against him, the same was reversible error. Prendergast, Presiding Judge, dissenting. 19. —Same—Rule Stated—Confessions. The plain letter of the statute renders inadmissible the confessions of the •defendant about the crime for which he is then under arrest in any case for which he may thereafter be tried, unless the same are made in writing after due warning as required by law; but not statements made by him about matters for which he is not then under arrest about offenses not then committed. Qualifying Rheinhardt v. State, 52 Texas Crim. Rep., 59. Distinguishing Mathis v. State, 39 Texas Crim. Rep., 549; Davis v. State, 19 Texas Crim. App., 201. Prendergast, Presiding Judge, dissenting. 20. -—Same—Rule Stated—Confessions. This court has held that such testimony is inadmissible in behalf of a defendant because the statute said the person making the statement was an incompetent witness at the time he made the statement, and if he is incompetent under the statute, such testimony is incompetent also in behalf of the State by virtue of the statute, unless the confession comes within the exceptions named in the statute. Following Milner v. State, 75 Texas Crim. Rep., 22, 169 S. W. Rep., 899, and other cases. Prendergast, Presiding Judge, dissenting.
76 Tex. Crim. 32Cruz v. State (1914)
1.—Scire Facias—Writ of Error—Supersedeas—Jurisdiction. Where a judgment nisi was made final and no appeal was taken, but after the adjournment of the trial court, the principal and sureties filed their formal petition for a writ of error to this court from said final judgment and executed a supersedeas bond, filing same with the clerk of the lower court, this had the effect to cause the ease to be pending in this court from that date, although the imñsdie.t.inu. of. this court does not attach for the purpose of adjudicating the case until service of citation in error. Following Hohenthal v. Turnure, 50 Texas, 1, and other cases. 53.—Same—Writ of Error—Delay—Certificate of Affirmance—Dismissal. Where plaintiffs in error filed their petition for writ of error and supersedeas bond in the lower court, but did not file the record in this court, but persistently pursued such tactics as to delay the hearing of the ease for more than a year after said petition was filed, and the State filed its certificate for affirmance in this court, and the record before this court brought by the State is ample for this court to dispose of the whole ease, and no citations having been issued or served on the appellee, this court will presume that plaintiffs in error have abandoned their writ and are barred by the statute and their laches from having any hearing in this court on its merits, and while this court can not affirm on the clerk’s certificate, the case will be dismissed so that the State can proceed to collect its judgment. Following Thompson v. Rice, 49 Texas, 769, and other cases.
76 Tex. Crim. 37Vasquez v. State (1914)
The opinion states the case.
76 Tex. Crim. 41Ethridge v. State (1915)
The opinion states the case.
76 Tex. Crim. 43Ethridge v. State (1915)
The opinion states the case.
76 Tex. Crim. 47Byars v. State (1914)
1.—Assault to Murder—Continuance—Want of Diligence. Where, upon trial of assault to murder, the application for continuance did not show due diligence, and in view of the motion for new trial the undisputed evidence showed that the proposed testimony of the absent witness is contradicted by the physical facts in the case, and the facts expected to be proved are not stated except upon information ard no attempt is made to show from whom defendant received such information, the application for continuance and the motion for new trial were properly overruled. 2.—Same—Sufficiency of the Evidence. Where, upon trial of assault to murder, the evidence was sufficient to sustain the conviction, there was no reversible ertor. [Rehearing denied January 6, 1915.—Reporter,]
76 Tex. Crim. 50Ex Parte Lambert (1915)
Examining Trial—Habeas Corpus—Practice on Appeal. Where relator was bound over in the Justice Court to appear before the grand jury upon a charge of bigamy, and thereafter sued out a writ of habeas corpus before the district judge who again bound him over to the grand jury, and relator claimed on appeal that the district judge heard evidence which was legally inadmissible, but it appeared from the record that the district judge had probable cause to believe that relator committed an offense, there was no error. Following Ex parte Walclr, 25 Texas Crim. App., 168.
76 Tex. Crim. 51Stewart v. State (1915)
Tried below before the Hon. Jesse F. Odom. 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.
76 Tex. Crim. 56Evans v. State (1915)
1.—Murder—Evidence—Impeaching Own Witness. A party is only permitted to impeach Ms own witness when he is surprised by his testimony, and the witness testifies to facts which are hurtful to his defense, and where the witness simply failed to testify to the facts that defendant was desirous of proving by him, this would present no ground to impeach Mm. Following Erwin v. State, 32 Texas Crim. Rep., 519, and other eases. 8.—Same—Evidence—Immaterial Issue—Impeachment. Upon trial of murder, there was no error in not permitting defendant on cross-examination of the State’s witness to impeach him upon an immaterial issue. Following Rainey v. State, 20 Texas Crim. App., 473, and other cases.
76 Tex. Crim. 58Denton v. State (1915)
The opinion states the case.
76 Tex. Crim. 60Prata v. State (1915)
1. —Burglary—Indictment. Where, upon trial of burglary, the indictment followed approved precedent, the same was sufficient. 2. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence was sufficient to sustain a conviction, although conflicting, the same was sufficient under a proper charge of the court to sustain the conviction. 3. —Same—Evidence—Property Alleged to Have Been Stolen. Where, upon trial of burglary, a State’s witness was permitted to testify that certain property was stolen from said burglarized house, although the indictment did not specifically allege that the said property had been stolen therefrom, there was no error. Following Lynne v. State, 53 Texas Crim. Rep., 386, and other cases. 4. —Same—Evidence—Bills of Exception. Where, upon appeal from a conviction of burglary, the bills of exception to certain testimony and the charge of the court were too indefinite and meager to authorize their consideration and failed to point out any error in the ruling of the court, there was no reversible error.
76 Tex. Crim. 62Cruz v. State (1915)
Tried below before the Hon. Crawford Laxson. Appeal from a conviction of aggravated assault; penalty, a fine of $100 and one hundred and twenty days confinement in the county jail. The opinion states the- case.
76 Tex. Crim. 63McAdams v. State (1915)
1. —Theft—Misdemeanor—Description of Money—Information. Where, upon trial of petty theft, the complaint and information alleged among other necessary allegations that defendant did unlawfully and fraudulently take from the possession of the party injured certain money, the exact description and value of which is to affiant unknown, but of the value exceeding one dollar, the same was sufficient in describing the property and also sufficient to allege a misdemeanor, and not a felony. Following Green v. State, 28 Texas Crim. App., 493, and other cases. Davidson, Judge, dissenting. 2. —Same—Information—Value Alleged—Misdemeanor. Where the information alleged that the exact value of the property alleged to have been stolen is unknown, but exceeds one dollar, this showed that it was not a felony, and was correctly prosecuted by information in the County Court. Davidson, Judge, dissenting. 3. —Same—Statement of Fact. Where the alleged statement of fact was not filed within twenty days after the adjournment of the County Court, the same will be struck out from the record on motion of the State.
76 Tex. Crim. 66Henderson v. State (1915)
1. —Receiving Stolen Property—Bills of Exception. Where the bills of exception were not filed within time, the same can not be considered on appeal; however, if considered, there was no error. 2. —Same—Evidence—Other Offenses. Upon trial of receiving stolen property, to wit: one pool and billiard ball, there was no error in admitting testimony that defendant met the thief, who gave him the first billiard ball, and who told him that he had four more for him. Following Gilbraith v. State, 41 Texas, 567, and other cases. 3. —Same—Evidence—Other Offenses. Where defendant was charged with receiving stolen property, towit: one pool and billiard ball, there was no error in admitting testimony that other like property was taken from the defendant at the time the alleged billiard ball was recovered, as well as the testimony that there were five of these balls delivered to the officer, the defendant being present when this began. 4. —Same—Evidence—Moral Turpitude. Upon trial of receiving stolen property, there was no error in permitting the State on cross-examination of one of defendant’s witnesses to show that he had been convicted of theft, and refusing defendant to go into the details of said theft. 5. —Same—Argument of Counsel. Upon trial of receiving stolen property where State’s counsel in addressing the jury said if the jury turned defendant loose, they would invite crime for all other criminals, the same was not reversible error. 6. —Same—Requested Charges. Upon trial of receiving stolen property, where the evidence sustained the eonviction, there was no error in refusing a requested charge to acquit the defendant and refusing others which were embraced in the main charge. 7. —Same—Misconduct of Jury. Where the court heard testimony on the ground contained in the motion for new trial that the jury alluded to defendant’s failure to testify and a statement of said testimony was not filed until after the trial court adjourned for the term, the same could not be considered on appeal. Following Probest v. State, 60 Texas Crim. Rep., 608; Resides, there was no such allusion made by the jury.
76 Tex. Crim. 69Perales v. State (1915)
1.—Murder—Precedent—Practice on Appeal. Where, upon appeal from a conviction of murder, the questions involved were the same as in companion cases and decided adversely to appellant, there was no error. 8.—Same—Indeterminate Sentence—Reforming Sentence. Where the lower court failed to conform to the Indeterminate Sentence Act, the judgment and sentence of the lower court is hereby reformed in accordance with said Act.
76 Tex. Crim. 70Sutton v. State (1915)
The opinion states the case.
76 Tex. Crim. 72Bruce v. State (1915)
1.—Bobbery—Certiorari—Practice on Appeal. Where appellant accompanied his motion for a writ of certiorari with a certified copy of the amended motion for new trial showing that the same was omitted inadvertently from the transcript, this court will pass upon same without issuing the writ of certiorari. 8.—Same—Severance—Other Trial Pending. Where defendant and five others were indicted in separate indictments for robbery of the same party and were granted a severance, and the trial of one of the defendants was pending when defendant’s case was called, there was no error in overruling a motion for postponement until the jury in the other ease should return a verdict. Following Krebs v. State; 8 Texas Crim. App., 1, and other cases. 3. —Same—Acquittal of Co-defeudant—Immateriality of Testimony. While there was no error in the court’s refusal to postpone defendant’s case until the jury had returned a verdict in a co-defendant’s case, yet as said co-defendant was later acquitted, the defendant was entitled to the testimony of the co-defendant, however, it being immaterial to his defense, there was no error on this ground. Davidson, Judge, dissenting. 4. —Same—Jury and Jury Daw—Bill of Exceptions—Qualifications. Under article 695, Penal Code, there was no error in the court’s' action in having the sheriff to summon talesmen in the absence of regular jurors for the week; besides, defendant’s bill of exceptions, as accepted by him and qualified by the court, presented no error. Following Blain v. State, 34 Texas Crim. Rep., 448, and other,cases. Davidson, Judge, dissenting. 5. —Same—Evidence—Circumstances. Where, upon trial of robbery, the defendant introduced testimony attacking the reputation of the prosecuting witness for truth and veracity, there was no error in admitting in evidence certain whisky bottles which tended to corroborate the evidence of the prosecuting witness; said testimony being part of one and the same transaction. 6. —Same—Evidence—Bes Gestae. Upon trial of robbery, there was no error in admitting testimony' of the deQlarations of the party alleged to have been robbed to a State’s witness, the same being res gestae of the transaction. [Behearing denied February 10, 1915.—Beporter.]
76 Tex. Crim. 78McElroy v. State (1915)
1.—Negligent Homicide—Statement of Facts—Information—Practice on. Appeal. In the- absence of a statement of facts and bills of exception, the only ground in the motion for new trial which can be reviewed is the question of the validity of the information, and this being sufficient, a conviction for negligent homicide in the court helow must be affirmed. 3.—Same—Transcript—Unreasonable Delay. Where the transcript in a misdemeanor case was not filed in this court until four years and nine months after the trial of the case, the same was an unreasonable delay which should not occur, and officers of the court and attorneys are cited to the -plain letter of the law that the transcript in misdemeanor cases must be prepared in preference to civil cases and forwarded to this court without delay. 3.—Same—Buie of Supreme Court—Statute. While the Supreme Court has power to establish rules of procedure of the courts not inconsistent with the laws of the State, such rules must not he in contravention of a statute or the latter will control. Following Johnson v. State, 49 Texas Crim. Rep., 429. 4. —Same—Duty of Clerk—Transcript. Rule 116 of the Supreme Court with reference to the delivery of transcript to the attorneys for appellant, when demanded, has no application to transcripts in misdemeanor cases, and it is the duty of the clerk under articles 930 and 931, Code of Criminal Procedure, to send the transcript direct to the clerk of this court as soon as completed. Following Pilot v. State, 38 Texas Crim. Rep., 515. 5. —Same—Cases Stated—Practice—Penalty—Costs. See opinion for state of facts where the delay in filing the transcript was caused by the county clerk in delivering the same to the attorneys for appellant, but there being no intentional dereliction, no penalty other than the costs for the issuance of process and service thereon will be assessed against him; however, officers of the court and attorneys are admonished that such delays in filing of transcript must not occur.
76 Tex. Crim. 83Calyon v. State (1915)
1. —Assault to Rape—Sufficiency of the Evidence. Where, upon trial of assault with intent to rape, the evidence, although conflicting, sustained the conviction, there was no reversible error. Following White v. State, 60 Texas Crim. Rep., 559, and other cases. 2. —Same—Functions of the Jury. The rule is that where the evidence is sufficient to sustain the verdict, although there may be contradictions in the testimony of the State’s witnesses,, this court can not legally take the place of the jury, and the only question is whether there is sufficient evidence to sustain the conviction. Following Kearse v. State, 68 Texas Crim. Rep., 633. 8.—Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify—Character Witnesses—Affidavit. Where the purported affidavit was made simply and solely on the affiant’s best knowledge, information, and belief to his amended motion alleging misconduct of the jury in alluding to defendant’s failure to testify and to place character witnesses on the witness stand, the same was insufficient, and there was no error in overruling same. Following Hicks v. State, 171 S. W. Rep., 755. Davidson, Judge, dissenting. 4. —Same—Rule Stated—Pleading—Proof—Practice. Where the motion for new trial attacks the verdict of the jury on any matter outside of the record itself, defendant must as a matter of pleading supported by his own affidavit or the affidavit of someone else specifically show the truth of the grounds of the attack, and an affidavit that affiant is informed, believes, etc., is insufficient where it is not shown nor attempted to be shown from whom he received such information, etc. Following Morrison v. State, 39 Texas Crim. Rep., 519, and other cases. 5. —Same—Oath of Jurors—Charge of Court—Practice—Misconduct of Jury. Where, upon trial of assault to rape, the court properly administered the oath to the jurors as provided under article 714, Code Criminal Procedure, otherwise instructing them properly, and in addition, charged them that the failure of the defendant to testify could not be taken as a circumstance against him or alluded to or commented on in their retirement, an affidavit attached to the motion for new trial that, affiant to the best of his knowledge, information and belief, that the jury or some members thereof commented on the defendant’s failure to testify, etc., did not require or authorize the trial judge to summons the jurors before him to answer to any such charge. Davidson, Judge, dissenting. 6. —.Same—Charge of Court—Definition of Rape. Where the trial judge in his definition of rape included threats, etc., hut when submitting the case to the jury for a finding confined himself to the question of force only as charged in the indictment, there was no reversible error. Following Railsback v. State, 53 Texas Crim. Rep., 542, and other cases. 7.—Same—Objections to Charge of Court. Where, upon trial of assault with intent to rape, the court applied the law to the facts in the case and submitted all of defendant’s special charges except the one which required a peremptory acquittal and those embraced in the court’s charge, general objections to such charge that he did not do so are insufficient, and there was no reversible error. . 8.—Same—Evidence—Appearance and Condition of Prosecutrix. Upon trial of assault with intent to rape, there was no error in permitting testimony as to the condition of prosecutrix and her appearance when she reached home about two hours after the assault upon her. Following Conger v. State, 63 Texas Crim. Rep., 328, and other cases; besides, this evidence was excluded from the jury. 9. —Same—Facts Stated in Opinion. See comments in additional opinion by majority of the court with reference to facts stated in the opinion which are in consonance with the record and sufficient to sustain the conviction. Davidson, Judge, dissenting. 10. —Same—Misconduct of Jury—Affidavit—Other Testimony. While the trial court under article 841, Code Criminal Procedure, may hear evidence by affidavit or otherwise and determine the issue as to. a complaint of the misconduct of the jury, yet where such issue has not been properly presented, there was' no error in the court’s overruling a motion for new trial on that ground and refuse to summons the jurors to testify. Following Bryant v. State, 69 Texas Crim. Rep., 457, and other cases. Davidson, Judge, dissenting. 11. —Same—Cases Discussed. See additional opinion and dissenting opinion discussing the decisions in the cases of Barber v. State, 35 Texas Crim. Rep., 70, and Hampton v. State, 63 Texas Crim. Rep., 100.
76 Tex. Crim. 115Davis v. State (1915)
Tried below before the Hon. J. B. Haynes. Appeal from a conviction of wilfully and wantonly killing a cow; penalti', a fine of $5.
76 Tex. Crim. 116Ex Parte T.H. Jennings (1915)
The opinion states the case.
76 Tex. Crim. 117Davis v. State (1915)
The opinion states the case.
76 Tex. Crim. 120Burrus v. State (1915)
The opinion states the case.
76 Tex. Crim. 125Lempke v. State (1915)
The opinion states the case.
76 Tex. Crim. 126Harris v. State (1915)
The opinion states the case.
76 Tex. Crim. 132Strauss v. State (1915)
1.—City Charter and Ordinance—Police Regulations—Illicit Intercourse. The special Act of the Legislature, March 10, 1909, incorporating the City of Port Worth, by its general provisions and especially by the provision giving said city general police powers, empowered said city to pass an ordinance making it unlawful for any white person and any negro to have sexual intercourse with each other within said city limits, said power extending over all acts which could be made a minor offense, and it was not necessary in said special Act, which is the city’s charter, to specially name any and all of the specific acts which came under said police power. Davidson, Judge, dissenting. 2. —Same—Adultery—Fornication—Statutes Construed. The power given to the City of Fort Worth, under its general police power, authorized the said city to enact an ordinance making it unlawful for any white person and any negro to have sexual intercourse with each other within the limits of said city and is not in conflict with the State laws of adultery and fornication, hut is in harmony therewith, as said ordinance makes each act of sexual intercourse a separate offense, whereas the adultery and fornication statute requires more than one such act to constitute these offenses. Davidson, Judge, dissenting. 3. —Same—Color Line—Statute Construed. Our laws have always recognized the difference between negro and white persons, and the validity of such laws can not he questioned because of that fact. 4. —Same—State Legislation—Municipal Legislation—Police Power. The fact that the State has never yet made it an offense for a negro and white person to have one act of sexual intercourse does not mean that the State has no such power. However, there can be no question but that the State can authorize its municipal corporations to make acts an offense therein under the police power even though it does not make the same act a State offense. Following Ayres v. City of Dallas, 32 Texas Crim. Rep., 603, and other cases. Davidson, Judge, dissenting. 5. —Same—Evidence—Rebuttal—Res Gestae. Where, upon trial under a city ordinance prohibiting a white person and a negro to have sexual intercourse with each other, the prosecution relied for a conviction of defendant on the fact that when the witness entered the room where defendant and a white man were alleged to have had sexual intercourse, they were locked in and both of them undressed, etc., the defendant should have been permitted to show that said white man said at the time that he had not had intercourse with the defendant. 6. —Same—Evidence—Rebuttal—Res Gestae. Where, upon trial of illicit intercourse between a black female and a white male under a city ordinance making such act an offense, the prosecution relied upon the fact that the parties were found in a certain room locked in and partly undressed, the defendant should have been permitted to have asked the white man on cross-examination what he intended to do if the officers had not entered the room when they did, to which he would have answered that he was undressing for the purpose of having sexual intercourse with the negress, but that, in fact, he had not had such intercourse. Harper, Judge, dissenting.
76 Tex. Crim. 147Ex Rel. Bergeron v. Co. Court of Travis Cty. (1915)
From Travis County. Rule nisi in prohibition; original application for a writ of prohibition restraining the county judge from trying a cause on appeal in the County Court charging relator with vagrancy and a conviction thereof in the Corporation Court, assessing a fine of $200. The opinion states the case.
76 Tex. Crim. 155Harris v. State (1915)
The opinion states the case.
76 Tex. Crim. 157Slaughter v. State (1915)
76 Tex. Crim. 169Alzalde v. State (1915)
Murder—Indeterminate Sentence—Admonition to Officers. • Attorneys both for the State and for the defendant and officers of the court should see that the indeterminate sentence law is followed in cases where it applies, as it entails expense to reform the judgment and sentence in the appellate court, which is now here done.
76 Tex. Crim. 169Stinson v. State (1915)
1.—Assault to Murder—Indictment—Bad Spelling—Amendment. Where, upon trial of assault with intent to murder, the motion to quash the indictment was on the ground that the “t” at the end of the word “intent” was omitted, there was no error in overruling the motion, although the court had no authority in permitting the district attorney to place the letter “t” at the end of the word “intent.” 8.—Same—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, other exceptions can not be con-sidered on appeal. • [Rehearing denied March 3, 1915.—Reporter.]
76 Tex. Crim. 171Perryman v. State (1915)
The opinion states the case.
76 Tex. Crim. 173Himmelfarb v. State (1915)
1.—Theft—Bailment—Indictment—Description. Upon trial of theft by bailment, where the indictment alleged that the defendant bound himself with the money he received from prosecuting witness to buy certain bar room fixtures and whisky for the prosecuting witness, it was not necessary to allege either the kind, character, quality, name, etc., of the fixtures or the quantity of whisky. 2. —Same—Sufficiency of the Evidence. Where, upon trial of theft of money delivered to the defendant by the prosecuting witness by virtue of a contract of bailment, the evidence sustained the conviction, under a proper charge of the court, there was ho reversible error. 3. —Same—Statement of State’s Case. Upon trial of theft under bailment, there was no error in permitting the attorney representing the State to make a preliminary statement of what the State expected to prove. Following House v. State, 75 Texas Crim. Rep., 338. 4. —Same—Argument of Counsel—Poetical Quotation. Where, upon trial of theft under bailment, the attorney representing the State in his argument to the jury said, “Cast your mind back thousands of years to another contract made by one of defendant’s kind with one of your kind, and he at that time demanded his pound of flesh,” and the trial judge immediately withdrew said remarks from the jury and reprimanded the counsel, who admitted that he had used improper argument, there was no reversible error. 5. —Same—Rule Stated—Argument of Counsel. The rule is that before this court will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear that such remarks were improper; that they were of a material character ■ and calculated to injuriously affect the defendant’s right.. Following Pierson v. State, 18 Texas Crim. App., 524, and other cases. 6. —Same—Rule Stated—Argument of Counsel—Practice. Where objectionable remarks are made in argument by the prosecuting attorney, this court will not reversé unless the remarks were objected to at the time and the defendant requested a special charge in writing instructing the jury to disregard it, and the court refuses such charge, to which refusal defendant takes a bill of exceptions. Following Hatchell v. State, 47 Texas Crim. Rep., 380, and other cases. 7. —Same—Evidence—Rebuttal, Where, upon trial of theft of money under bailment, defendant claimed that he had made application for liquor license for the prosecuting witness to be paid out of the money which he received from the latter, there was no error in permitting a State’s witness to testify that defendant had made no application for license, and that a colored man had inquired of him whether defendant had done so. 8. —Same—Evidence—Want of Consent—Rebuttal. Upon trial of theft of money under bailment, there was no error in permitting prosecuting witness to show his want of consent to the defendant to cgnvert said money, neither did the court err in permitting the State to introduce in evidence a certain bill of lading for a carload of pool tables which defendant bought on his own account. 9. —Same—Evidence—Case Stated—Interest—System. Upon trial of theft of money under bailment, there was no error in admitting testimony showing the whole transaction and the dealing between prosecuting witness and the defendant from the time their negotiations began to the time they ended in order to show system and intent in the illegal conversion of the money obtained by the defendant. Following Kaufman v. State, 70 Texas Crim. Rep., 438, and other cases. 10. —Same—Charge of Court—Venue. ‘Where, upon trial of theft of money under bailment, the defendant complained of the court’s charge on venue, on the ground that the evidence did not show that the alleged, conversion occurred in the county of the prosecution, but the evidence showed that such conversion did occur in the county of the prosecution, there was no error on that ground. 11. —Same—Venue—Buie Stated—Presumption. It .is not essential to prove venue beyond a reasonable doubt, and the same may be proved by circumstantial evidence, and the court will presume that the venue was proved in the court below unless such matter was an issue and it affirmatively appears by bill of exceptions properly signed and proved and incorporated in the record. Following McGlasson v. State, 38 Texas Crim. Rep., 351, and other cases, 12. —Same—Charge of Court—Conversion. It was not necessary, under trial of theft by bailment, that it be shown that the defendant received the alleged money both for the purposes of buying fixtures and whisky; either would suffice, and there was no error in the court’s charge on that issue. Following Terry v. State, 62 Texas Crim. Rep., 73, and other cases. 13. —Same—Bailment—Illegal Transactions—Conversion. The contention, that as the alleged money the prosecuting witness turned over to the defendant was to be used to buy whisky and fixtures in operating a saloon in the name of the defendant for the benefit of prosecuting witness was in effect an illegal transaction, and, therefore, defendant could not be prosecuted for the conversion of said money is untenable. [Rehearing denied March 3, 1915.—Reporter.]
76 Tex. Crim. 184Ex Parte McDaniel (1915)
1. —Extradition—Going Into Facts—Motive. Upon extradition proceedings, there was no error in not permitting relator to go into the facts upon which the complaint or affidavit was founded, and show that he was guilty of no offense; as the question of guilt or innocence can not be inquired into, neither can the motive of relator in leaving the demanding State he inquired into. Following Drew v. Thaw, 235 U. S., 432, and other cases. 2. —Same—Question of Guilt—Motive—Rule Stated—Fugitive from Justice. ■The question of the guilt of the relator or any other ulterior purpose behind the prosecution can not be inquired into, and a person who commits a crime in one State and departs therefrom and is found in another State may be regarded as a fugitive from justice. Following Ex parte Denning, 50 Texas Crim. Rep., 629. 3. —Same—Going Behind Governor’s Warrant—Burden—Prima Facie Case. While it is held that the courts may go behind the Governor’s warrant, yet it has always been held that the warrant issued by the Governor makes a prima facie case on habeas corpus, and the burden is on the relator that the warrant was not legally issued. Following White v. State, 39 Texas Crim. Rep., 497, and other cases. Distinguishing Ex parte Cheatham, 50 Texas Crim. Rep., 51. 4. —Same—Complaint—Affidavit—Governor’s Warrant. Where relator indulged in a criticism of the Governor’s warrant for using the word “complaint” instead of reciting that the demand was accompanied by a copy of an affidavit duly certified, etc., the same was untenable; besides, the affidavit was introduced in evidence.- Following Ex parte White, 39 Texas Crim. Rep., 497. 5. —Same—Justice of the Peace—Magistrate—Demanding State. Where the Governor’s warrant recited .that relator stands charged by complaint before the proper authorities and that the demand is accompanied by a copy of the complaint duly certified as authentic by the Governor of the demanding State, the same was sufficient, and it was incumbent upon relator to show the fact that a justice of the peace is not a magistrate in the demanding State. Following Ex parte Stanley, 25 Texas Crim. App., 372, and other cases. 6. —Same—Indictments Pending—Practice—Dismissal—Vacation. Where- relator, in extradition proceedings, showed that indictments were pending against him in the District Court of Texas and that he could, therefore, not be extradited to the demanding State, although the district attorney had entered a dismissal of such indictments in vacation. Held, if relator insists upon his objection, he will be held in custody until said indictments are duly disposed of and then delivered to the demanding State. Following Ex parte Hobbs, 32 Texas Crim. Rep., 312.
76 Tex. Crim. 189Guiterrez v. State (1915)
The opinion states the case.
76 Tex. Crim. 191Handy v. State (1915)
1. —Burglary—Recent Possession—Explanation. Where, upon trial of burglary, the record showed on appeal that defendant made no explanation of his possession of the alleged property recently stolen, but denied that he ever had such possession, the court should not have submitted a charge on explanation and recent possession. 2. —Same—Rule Stated. It is error to charge on reasonable explanation when the defendant made no explanation of his possession, or when challenged as to the property, stated that he did not know anything about it. Following Mayfield v. State, 23 Texas Crim. App., 645, and other cases. 3. —Same—Circumstantial Evidence—Possession. Where, upon trial of . burglary, defendant made no explanation of his possession of the alleged stolen property, a charge on circumstantial evidence was all that was necessary, and a charge on explanation was error. 4. —Same—Evidence—Plight. While it is permissible for the sheriff to state what efforts he made in trying to locate the defendant, he should not have been permitted to state that a third party told him to look out for the defendant.
76 Tex. Crim. 191Ortiz v. State (1915)
1. —Murder—Indeterminate Sentence Law. Where the trial court failed to apply the indeterminate sentence law, the judgment and sentence will be reformed in the appellate court. 2. -—Same—Continuance—Practice on Appeal. In the absence of a statement of facts and a bill of exceptions, the overruling of the motion for a continuance can not be reviewed on appeal.
76 Tex. Crim. 194Orange v. State (1915)
1.—Murder—Indeterminate Sentence Law, Where the trial court omitted to apply the indeterminate sentence law, the judgment is reformed in this court. 8.—Same—Circumstantial Evidence—Charge of Court. Where, upon trial of murder, the court charged upon circumstantial evidence, presumption of innocence and reasonable doubt, and defendant’s plea was not guilty without presenting an affirmative defense, there was no error in the court’s failure in refusing the charge requested by the defense. 3.—Same—Jury and Jury Law—Challenge for Cause. The mere fact that one of the jurors would first conclude from the evidence, about which there was no dispute among the jurors, that defendant was innocent, and afterwards change his mind and agree to a verdict of guilty would not be a challenge for cause.
76 Tex. Crim. 196Davidson v. State (1915)
The opinion states the case.
76 Tex. Crim. 198Etheridge v. State (1915)
The opinion states the case.
76 Tex. Crim. 209Windham v. State (1915)
The opinion states the case.
76 Tex. Crim. 211Cassanova v. State (1915)
The opinion states the case.
76 Tex. Crim. 212Houseman v. State (1915)
1.—Pandering—Indictment. Where the indictment, in a prosecution for pandering, did not conform to the Act of the Thirty-second Legislature, defining the offense of pandering, the same was insufficient, and the motion in arrest of judgment should have been sustained. 8.—Same—Different Offense. See opinion suggesting, that under the evidence, an indictment might he found under another penal law denouncing the offense of procuring a female to become or remain in a house of ill-fame, etc.
76 Tex. Crim. 213Hays v. State (1915)
1.—Perjury—Indictment—Immaterial Allegations. Where, upon trial of perjury, the allegations contained in the indictment were that defendant’s memory was treacherous and that he failed to remember the transaction about which inquiry was made of him as a witness, the motion to quash the indictment because the matters and things set out were not material should have been sustained. 3.—Same—Insufficiency of Evidence. Where, upon trial of perjury, the evidence did not prove the case as alleged in the indictment by two credible witnesses or one credible witness with strong corroborative circumstances, the conviction could not be sustained. 3. —Same—Circumstantial Evidence—Charge of Court. •Where, upon trial of perjury, the issue of circumstantial evidence was raised, the court should have submitted a charge thereon. 4. —Same—Wilfully and Deliberately. Upon trial of perjury, the court should define the words “wilfully and deliberately.” Following Windon v. State, 56 Texas Crim. Rep., 198.
76 Tex. Crim. 216Jobe v. State (1915)
The opinion states the case.
76 Tex. Crim. 217Maddox v. State (1915)
1.—Murder—Manslaughter — Evidence—Temporary Insanity — Cocaine — Presumption. Where, upon trial of murder, the defendant claimed among other defenses the recent use of cocaine administered to him by the deceased and which caused the temporary insanity of the defendant, there was no error in not permitting the defendant to have witnesses to testify that they were acquainted with deceased and knew that he used cocaine and that at the time of the homicide when he induced defendant to take a drink of whisky which contained cocaine, and long prior thereto that the deceased was habitually addicted to the use of cocaine; defendant claiming that this testimony would aid the jury in forming some correct conclusion as to the amount and quantity of cocaine contained in the whisky given to the defendant by the deceased, and would throw some light on the issue as to whether a sufficient quantity of cocaine was administered to the defendant to produce the mental condition upon the part of the defendant. Davidson, Judge, dissenting. 8.—Same—Buie Stated—Presumption of Pact. The requirement that the logical inference styled a presumption of fact should he a strong, natural and immediate one brings as a corollary that no inference can he based upon a fact the existence of which itself rests upon a prior inference. In other words, there can be no presumption upon a presumption. Following House v. State, 15 Texas Crim. App., 522. S.—Same—Self-defense—Charge of Court—Abandonment of Difficulty. Upon trial of murder, an exception to the court’s charge on self-defense-that the court erred in not instructing the jury that if the fatal wound was inflicted while the defendant was acting in self-defense, the further inflicting of wounds after the necessity thereof had ceased and after deceased had abandoned the difficulty would not impair the defendant’s right of self-defense was not well taken, as such is not the law. Besides, the bill of exceptions was defective. Davidson, Judge, dissenting. 4. —Same—Buie Stated—Other Wounds. The law is that the accused has no right to pursue and inflict other wounds after his adversary flees, and if he does so and death is hastened or contributed to in any sense by the additional wounds, the accused would be guilty of some grade of offense. Following Williams v. State, 2 Texas Crim. App., 271, and other cases. 5. —Same—Buie Stated—Self-defense—Abandonment of Difficulty. No one can pursue another when he knows his adversary has abandoned the difficulty and retreated with no intention of renewing the difficulty and inflict other wounds on him. His right to act in self-defense ceases when he knows all danger to him is over, and he is criminally liable for all acts he commits subsequent to that time; although he might be guilty of no higher grade of offense than aggravated assault; hut defendant did not except to the charge on that ground, and there was no error under Article 743, Code Criminal Procedure. Davidson, Judge, dissenting. 8.—Same—Bequested Charges. Where appellant did not brief his hills as to the court’s failure to give requested charges, this court will not review the same. However, there was no error, as the requested charges were contained in the court’s main charge. Y.—Same—Drunkenness—Drugging Whisky—Evidence. Opon trial of murder and a conviction of manslaughter, the fact that deceased was drunk on the morning before the homicide would be immaterial, as would also be testimony that the deceased put a drug in a bottle of whisky, as this was not a contested issue.
76 Tex. Crim. 228Jeffers v. State (1915)
The opinion states the case.
76 Tex. Crim. 229Schulman v. State (1915)
Keeping Disorderly House—Former Jeopardy. Where, upon trial of keeping a disorderly house, the defendant was placed on trial before six jurors and pleaded not guilty, and one of the jurors was then excused by express permission of defendant and implied authority by State’s counsel, whereupon, defendant requested to be tried before the remaining five jurors, but the court, over his objection, discharged the jury, the plea of former jeopardy should have been submitted to the jury, upon another trial. Following Stell v. State, 14 Texas Crim. App., 59, and other cases.
76 Tex. Crim. 230Solis v. State (1915)
1. —Assault to Murder—Statement of Fact—Bills of Exception. Where it was shown that it was not due to the negligence of appellant that his bills of exception and statement of fact were not filed in time, the same will be considered on appeal. 2. —Same—Aggravated Assault—Charge of Court—Adequate Cause. Where, upon trial of assault to murder, the evidence showed that the party injured inflicted a blow upon defendant which caused pain, this was statutory adequate cause, and the court should have so instructed the jury in his charge limiting defendant’s right of self-defense in the event there was no intention to kill. Following Halsford v. State, 53 Texas Crim. Rep., 42, and other cases. 3. —Same—Provoking Difficulty—Rule Stated. If one provokes the difficulty or produces the occasion in order to have • a pretext for killing, or with intent of killing his adversary or doing him great bodily harm, the killing would be murder, no matter to what extremity he may have been reduced in the combat. 4. —Same—Rule Stated—Intent to Kill. If the defendant provoked the difficulty with no intent to kill or inflict serious bodily injury and thereby brought about the necessity of killing the deceased to save his own life or prevent serious bodily injury being inflicted on him by deceased, it would not be murder, but manslaughter. 5. —Same—Evidence—General Reputation. Where defendant had not attacked the reputation of the prosecuting witness, it was error to permit the State to introduce evidence that the reputation of said witness as a peaceable law-abiding citizen was good. Following Graves v. State, 14 Texas Crim. App., 113, and other cases. 6. —Same—Simple Assault—Charge of Court. Where, upon trial of assault to murder, the evidence did not raise the issue of simple assault, there was no error in the court’s failure to charge thereon.
76 Tex. Crim. 233Herrin v. State (1915)
The opinion states the case.
76 Tex. Crim. 235Schenk v. State (1915)
1. —Theft—Indictment—Description. Where the description of the alleged stolen property was sufficient, there was no error in overruling a motion to quash the indictment. Following Green v. State, 28 Texas Crim. App., 493. 2. —Same—Evidence—Ho Variance. Where the indictment alleged the theft of a distributer leather belt and the evidence showed that a leather belt was missing from the gin called by the witness a distributer leather belt, describing the use of the same, the fact that he also called it by other names was not fatal variance. 3. —Same—Evidence—Other Transactions. Where it was not contended that certain third parties took the alleged stolen property, there was no error in not permitting the defendant to show that these parties took certain other property from the alleged gin. 4. —Same—Evidence—Cross-examination. Where, upon trial for theft from a certain gin, defendant sought to prove that he was part owner of the same, and therefore, had a right to take the things he was charged with stealing, the State had the right on cross-examination to ascertain if such claim was made in good faith. 5. —Same—^-Charge of Court—Property Stolen. Where the theft of several articles was alleged, it was not required that the State prove that defendant had stolen all of the articles alleged and to so charge the jury. 6. —Same—Sufficiency of the Evidence. Where, upon trial of theft, the specific identification of the alleged property ' was not very strong, yet the number and character of things missing were found in defendant’s possession and were similar to those stolen, there was no error in refusing a peremptory charge to acquit. 7. —Same—Burden of Proof—Charge of Court—Harmless Error. Where, upon trial of theft, the issue upon which the court charged was not raised by the evidence, the same was harmless error, but on another trial should be avoided. ’ 8. —Same—Special Owner—Charge of Court. Where the question of special ownership was a contested issue, in a trial for theft, and the court’s attention was called to said fact, the court’s charge, which did not require the finding of such fact, was reversible error. Following Williams v. State, 26 Texas Crim. App., 131.
76 Tex. Crim. 239Jones v. State (1915)
1. —Occupation—Local Option—Indictment. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in overruling a motion to quash the indictment because it did not negative the exceptions in the statute. Following Slack v. State, 61 Texas Crim. Rep., 372. 2. —Same—Evidence—Law in Force—Original Records. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in admitting in evidence the original records showing that local option was in force, without having given notice of such records. 3. —Same—Variance—Sufficiency of the Evidence. Where the indictment alleged that the defendant did make two different sales of intoxicating liquor to T. & N., in a prosecution for following the occupation of selling intoxicating liquors in local option territory, and the evidence showed that the liquor was sold at one time to one party alleged in the indictment for the use and benefit of both persons alleged in the indictment, and another sale was made at another time to the other party alleged in the indictment for the use and benefit of both parties alleged in the indictment, there was no material variance in the allegation and the proof. Following Werbiski v. State, 20 Texas Crim. App., 132, and other cases. 4. —Same—Delay—Filing Transcript. See opinion deprecating delay in filing transcript, and admonishing officers -of the court to comply with the law.
76 Tex. Crim. 243Younger v. State (1915)
1. —Carrying Pistol—Travel—Charge of Court. Where, upon trial of unlawfully carrying a pistol, the defendant claimed that he was a traveler and the court instructed the jury to acquit him if this was the case, this was sufficient in the absence of objections to the charge and a request for special instructions. 2. —Same—Traveler—Statutes Construed. Where, upon trial of unlawfully carrying a pistpl, the evidence showed that the defendant had no home and was wandering around in the neighborhood seeking work, he did not come Within the definition of a traveler under the statute. 3. —Same—County Attorney—Representing State. Where, upon trial of unlawfully carrying a pistol, the court, in the absence of the county attorney, appointed an attorney to prosecute the ease, all the papers having been filed by the county attorney, there was no error. Distinguishing Moore v. State, 56 Texas Crim. Rep., 300.
76 Tex. Crim. 245McCampbell v. State (1915)
1.—Murder—Continuance — Newly Discovered Evidence — Practice on Appeal. Where the judgment was reversed and the cause remanded on other grounds, the overruling of an application for a continuance and a motion for a new trial on the ground of newly discovered evidence need not be considered. 3.—Same—Manslaughter—Charge of Court—Adequate Cause. Where, upon trial of murder, there was no statutory adequate cause and neither of the circumstances isolated and alone would be sufficient to reduce the offense to manslaughter, yet where the facts and circumstances all taken together might be such in the judgment of the jury as to engender in any ordinary man that degree of anger, rage or fear as to render him incapable of cool reflection and would amount to adequate cause, the court should have submitted the law of manslaughter, and a failure to do so was reversible error. Prendergast, Presiding Judge, dissenting. 3. —Same—Manslaughter—Abandonment of Difficulty. Where, upon trial of murder, the evidence raised the abandonment of the difficulty and the facts were such as to raise the issue of manslaughter, the court should have submitted a charge thereon. 4. —Same—Buie Stated—Manslaughter—Charge of Court. It is the law of this State that if one fires the first shot in self-defense and his adversary flees, if by the conduct of his adversary, defendant’s mind is rendered incapable of cool reflection, although not justified in continuing to shoot after the abandonment of the difficulty by his adversary, yet he would be guilty of no higher grade of offense than manslaughter, and the court erred in instructing the jury that as a matter of law defendant would be guilty of murder under such circumstances. Following Mackey v. State, 13 Texas Crim. App., 360. 5. —Same—Self-defense—Abandonment of Difficulty. Where self-defense is presented by the evidence, and the court charges on abandonment of the difficulty, he should in connection therewith charge the jury that if defendant was justified in firing the first shot and continued to shoot after deceased had abandoned the difficulty, if by the previous conduct of the deceased defendant was rendered incapable of cool reflection, etc., he would be guilty of manslaughter, and not murder. 6. —Same—Self-defense—Charge of Court—Acts of Another. Where, upon trial of murder, the evidence raised the issue that another was acting with the deceased in the threatened attack on defendant, the court should have instructed the jury that if from the acts and conduct of deceased and others acting with him, it appeared to the defendant that his life was in danger, etc., to acquit. 7. —Same—Charge of Court—Apparent Danger. Where, upon trial of murder, the evidence raised the issue of apparent danger, the court in his charge should not have limited the defendant’s right to act from an actual attack alone.
76 Tex. Crim. 250Medford v. State (1915)
1.—Assault to Murder—Statement of Facts. Where the statement of facts was inadvertently omitted and not forwarded to this court, by no fault of appellant, the same will be considered on appeal. 8.—Same—Continuance—Diligence—Materiality of Testimony. Where the application for continuance showed proper diligence and the materiality of the testimony, the same should have been granted, and was reversible error.
76 Tex. Crim. 252Abernathy v. State (1915)
The opinion states the case.
76 Tex. Crim. 253Chumley v. State (1915)
1. —Local Option—Indictment—Grand Jury—Motion for New Trial. Where" the motion that the attorney who represented the State was one of the grand jury panel which found the indictment against the defendant was not sworn to by any one, it presented no error. 2. —Same—Sufficiency of the Evidence—Charge of Court. Wherfe defendant claimed that he acted merely as the agent of the purchaser and denied making a sale, and these issues were submitted to the jury and the evidence was sufficient to sustain a conviction, there was no reversible error.
76 Tex. Crim. 254Vasquez v. State (1915)
1. —Murder—Transcript—Delay—Clerk’s Warrant. Where the record was not filed in this court until seven months and two days after the final judgment in the lower court, the whole record not containing as much as eighteen typewritten pages, the same was an unwarranted, delay, and the clerks of the lower courts are warned that if they persist in. violating the law in this way, it will be the duty of this court to impose the penalty of the law upon them for their neglect and failure. 2. —Same—Ninety Days’ Limit—Transcript. Clerks of the lower courts are required to have the record in cases appealed to this court here within not less than the ninety days prescribed by law; otherwise, they will be made to suffer the consequences. 3. —Same—Statements of Fact—Bill of Exceptions—Practice on Appeal. In the absence of a statement of facts and bills of exception, the questions, raised can not be reviewed.
76 Tex. Crim. 255McCaskey v. State (1915)
The opinion states the case.
76 Tex. Crim. 257Arias v. State (1915)
The opinion states the case.
76 Tex. Crim. 260Parker v. State (1915)
Carrying Pistol—Insufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant got his pistol and went down a creek which was the dividing line between him and another who was shooting his hogs, and that when he reached the bridge on the public road, turned back and walked along on the public road part of the way, returning to his home, the same did not constitute a violation of the law.
76 Tex. Crim. 261Christman v. State (1915)
The opinion states the case.
76 Tex. Crim. 263Sparks v. State (1915)
The opinion states the case.
76 Tex. Crim. 269Hill v. State (1915)
1.—Slander of Female—Sufficiency of the Evidence—Ho Variance. Where, upon trial of slandering a female, the testimony of the State’s witness showed that on direct examination, he stated positively that defendant used to him the identical language charged in the indictment, but on cross-examination, was not as positive about it, the question was one for the jury, and there was no reversible error. 3. —Same—Requested Charges—Practice on Appeal. Where no reason was given why the refused requested charges should have been given, there was no reversible error. Following Byrd v. State, 69 Texas Crim. Rep., 35, and other cases. 8.—Same—Language Used—Ho Variance. In prosecutions for slander of a female, it is only necessary to allege the substance of what was said which is charged to be slander, and to prove the same substantially. Following Hasley v. State, 57 Texas Crim. Rep., 400, and other cases. 4. —Same—Identical Language—Requested Charge. Upon trial of slander of a female, there was no error in refusing a requested charge that the State was required to prove the identical language alleged in the indictment, the court charging the jury that the slanderous statements must be substantially proved. • 5.—Same—Leading Questions. Where the court permitted the State to ask the witness whether or not the defendant had stated to him about the alleged female what was alleged in the indictment, there was no error. Following Carter v. State, 59 Texas Crim. Rep., 73. 6.—Same—Evidence—General Reputation. Where the State’s witnesses oil direct examination testified that the gen^, eral reputation of the alleged female was good, and on cross-examination testified that this was their individual opinion, it would not justify the exclusion of such testimony, but would only go to the weight of it. [Rehearing denied February 24, 1915.—Reporter.]
76 Tex. Crim. 273McHenry v. State (1915)
1. —Bribing Officer—Bills of Exception. Where the bills of exception were not approved, and no attempt was made to prove them up, they can not be considered on appeal. 2. —Same—Bills of Exception—Qualification. Where appellant accepted the bills of exception as qualified by the court, he is bound thereby. Following Blain v. State, 34 Texas Crim. Rep., 448. 3. —Same—Evidence—Declaration of Third Parties. Upon trial of bribery, there was no error in not permitting the witness to testify as to the declarations of third parties and what they had told him. 4. —Same—Argument of Counsel. In the absence of requested instructions- and in view of the qualifications of the bills of exception that the alleged argument of counsel was not used, and that which was used was in response to defendant’s counsel, there was no error. 5. —Same—Evidence. Where the alleged refused testimony did not relate in any way to the transaction for which defendant was being tried, there was no error. Distinguishing Green v. State, 54 Texas Crim. Rep., 3. 6. —Conduct of District Attorney—Colloquy Between Counsel. Where, upon trial of bribery, the court excluded from the jury the remarks which occurred in a colloquy between counsel, there was no error. 7. —Same—Argument of Counsel. Where the district attorney remarked in his argument that the law was made for the negroes as well as for the white people, there was no error; the same being in response to defendant’s argument. 8. —Same—Newly Discovered Testimony. Where the motion for new trial upon the ground of newly discovered evidence showed that the same was of an impeaching character on an immaterial issue and did not even do this, but corroborated the State’s testimony, there was no error in overruling the motion. 9. —Same—Sufficiency of the Evidence. Where, upon trial of attempting to bribe an officer, the evidence, although conflicting, was sufficient to sustain a conviction, there was no reversible error. [Eehearing denied February 34, 1915.—Beporter.]
76 Tex. Crim. 277Ex Parte Adams (1915)
The opinion states the case.
76 Tex. Crim. 283McAnthony v. State (1915)
The opinion states the case.
76 Tex. Crim. 285Ex Parte Bartee (1915)
The opinion states the case.
76 Tex. Crim. 297Howard v. State (1915)
1.—Drunkenness—Information—Public Place. In an information charging defendant with drunkenness in a public place, it was not necessary to allege a particular place in the county, and the allegation that it occurred in a restaurant to which people commonly resorted, etc., in the county of the prosecution was sufficient. ¡2.—Same—Sufficiency of the Evidence. Where, upon trial of drunkenness in a public place, the evidence "sustained the conviction, there was no error. 3.—Same—Motion for Hew Trial—Bill of Exceptions. Where defendant took no bill of exceptions to any of the proceedings during the trial, but excepted to the overruling of the court of his motion for new trial, there was nothing to review. 4.—Same—Defendant’s Failure to Testify—Misconduct of Jury. The bare mention by the jurors in their retirement of defendant’s failure to testify, without a showing that this influenced them, presents no ground to set aside a verdict. Following Coffman v. State, 73 Texas Crim. Rep., 295. [Behearing denied March 24, 1915.—Beporter.J
76 Tex. Crim. 299Spikes v. State (1915)
1. —Theft from Person—Statement of Pacts—Attorney and Client. Where the alleged statement of facts was in question and answer form, and not in the narrative form, as required by law, the same is struck out on motion of the State. The contention that defendant had no attorney to prepare his defense, in the absence of a motion to postpone the case, comes too late after verdict. 2. —Same—Newly Discovered Evidence—Affidavit. Where the alleged newly discovered evidence was known to the defendant before the trial, the same did not come within the rule of newly discovered evidence; besides, no affidavit was attached to the motion for new trial. Following Cotton v. State, 4 Texas, 260, and other cases.
76 Tex. Crim. 300Howard v. State (1915)
1. —Aggravated Assault—Hearsay Evidence. Where, upon trial of aggravated assault, State’s witnesses were permitted to testify to statements made by third parties in the absence of the defendant, the same was reversible error. 2. —Same—Insufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence showed that the defendant and the alleged assaulted party were husband and wife, and there was no testimony of a positive nature that defendant made any assault upon his wife, the conviction could not be sustained. 3. —Same—Deadly Weapon—Charge of Court. Where, upon trial of aggravated assault, there was no evidence that any deadly weapon was used, the court’s charge as to the use of a deadly weapon, etc., was reversible error.
76 Tex. Crim. 301Harriss v. State (1915)Affirmed
1. Ceiminal Law <&wkey;1159—Appeal—Verdict. A verdict on conflicting evidence will not be disturbed. [Ed. Note.—For other, cases, see Criminal Law, Cent. Dig. §§ 3074r-30S3; Dec. Dig. &wkey;> 1159.] 2. Criminal Law <&wkey;406 — Evidence — Admissions. Incriminating statements, made by accused before he was arrested, are admissible against ■him. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 785, 894^917, 920-927; Dec. Dig. <&wkey;>406.] 3. Criminal Law <&wkey;1169 — Prejudicial Error—Evidence—Withdrawal. Where, when it was discovered that the incriminating statements testified to by the officer might have been made after accused was under arrest, the court withdrew them,'and directed the jury to disregard the evidence, the admission of the evidence was not error. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <&wkey;>1109.]
76 Tex. Crim. 301Harris v. State (1915)
1.—Bobbery—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence, although conflicting, was sufficient to sustain the conviction, there was no reversible error. 2.—Same—Evidence—Arrest—Confessions. Where, upon trial of robbery, the evidence showed that the defendant’s declarations admitting his guilt were made before arrest, there was no reversible error. 3.—Same—Evidence—Declarations of Defendant—Withdrawing Evidence. Where, upon trial of robbery, the court admitted statements of the defendant which were made before he was arrested, but his witnesses controverted this issue and testified that he was under arrest at the time, and the court, thereupon, withdrew said testimony from the jury, and there was nothing to indicate that defendant believed he was under arrest, there was no reversible error.
76 Tex. Crim. 303Johns v. State (1915)
1.—Pulling Down Pence—Possession—Title—Jurisdiction. Where the evidence showed that the party alleged to be injured went into possession of the land and fence in question as independent executrix of the deceased owner, against whom defendant brought a suit for possession as the rightful owner, which suit was dismissed and that said executrix remained in possession of said land and fence, the court did not err in overruling a plea to the jurisdiction of the County Court, as the title to the land was not involved and could not be adjudicated, and the question was who was in actual possession of the fence alleged to have been torn down. 3.—Same—Other Transactions—Evidence—Good Earth. Upon trial of unlawfully pulling „ down a fence the property of another, there was no error in admitting testimony that defendant not only tore down the fence in question, but also tore down the fence around another tract of land in possession of the party injured, the defendant contending that he pulled down the alleged fence believing that he had a right to do so. Following Davison v. State, 12 Texas Crim. App., 214, and other cases. 3. —Same—-Evidence—Intent—Rule Stated—Other Offenses. In all eases in which the guilty knowledge or intent of a party in the act or transaction in question is an essential element, evidence of other similar acts or offenses committed by such party is relevant and competent testimony. 4. —Same—Misdemeanor—Charge of Court—Limiting Testimony. In the trial of a misdemeanor, the court is not required to give a charge to the jury, and if he does do so, the defendant must reserve an exception thereto and present a special charge, in the absence of which it is too late to complain of the court in not limiting the testimony as to the good faith of the defendant, in the motion for new trial; besides, the court submitted that issue. 5.—Same—Sufficiency of the Evidence. Where, upon trial of unlawfully pulling down the fence of another, the evidence showed that defendant knew the party injured was in possession claiming it as her own, he had no authority or right _to_,forcibly seek to take possession away from her, but should have brought a civil suit therefor, and the evidence being sufficient to sustain a conviction, there was no reversible error.
76 Tex. Crim. 306Griffin v. State (1915)
Carrying Pistol—Statement of Pacts—Notice of Appeal. Where the alleged statement of facts was filed too late, the motion to strike out would ordinarily be granted; however, there being no notice of appeal in the record, this court has no jurisdiction, and the cause must, therefore, be dismissed.
76 Tex. Crim. 307Shepherd v. State (1915)
1. —Local Option—Continuance—Practice on Appeal. Where the judgment was reversed and the cause remanded on other grounds, it is unnecessary to consider the overruling of defendant’s motion for continuance. 2. —Same—Charge of Court—Agency. Where, upon trial of a violation of the local option law, the evidence raised the question of agency and the court refused special instructions thereon, the same was reversible error. 3. —Same—Evidence—Other Offenses. Where, upon trial of a violation of the local option law, the defendant over his objection was required to testify that he had been previously indicted for a violation of the local option law, the same was reversible error. Following Hays v. State, 47 Texas Crim. Rep., 149, and other cases.
76 Tex. Crim. 308Vandeveer v. State (1915)
1.—Arson—Sufficiency of the Evidence. Where, upon trial of arson, the evidence was sufficient to sustain the conviction, there was no error on that ground. 3.—Same—Circumstantial Evidence—Charge of Court. Where, upon trial of arson, the evidence was not wholly circumstantial, but the conviction also rested upon the admissions of the defendant, there was no error in the court’s failure to charge on circumstantial evidence. 3. —Same—Bills of Exception. Where the bills of exception to the exclusion of testimony were so meagre and insufficient under the established rules of this court that they could not be reviewed, there was no reversible error. 4. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not disclose what answer the witness would have given to the questions propounded, the same could not be considered on appeal; besides, there was no error. [Rehearing denied March 3, 1915.—Reporter.]
76 Tex. Crim. 309Bridges v. State (1915)
The State’s witness Zade Alvis testified that he passed by the defendant and dropped a dollar into his pocket and asked him, “Where I could get it? meaning (where I could get the whisky). He said he would let me know. I went from there to Williams’ store and then left there and went across the public square towards Brown’s blacksmith shop.
76 Tex. Crim. 310Glasper v. State (1915)
The opinion states the case.
76 Tex. Crim. 312Bowden v. State (1915)
1.—Murder—Objections to Charge of Court—Article 743. Under the recent statute, in order usually to have errors in the charge of the court reviewed, proper steps must be taken to call these matters to the attention of the court before the charge is read to the jury. 3.—Same—Sufficiency of Evidence—Objections to Charge. Where the objections to the charge of the court were not presented to the court as required by law, and the evidence was sufficient to sustain a conviction, there was no reversible error.
76 Tex. Crim. 313Cisneros v. State (1915)
1.—Murder—Statement of Facts—Bills of Exception. In the absence of a statement of Facts and bills of exception, nothing is raised in the motion for new trial that can be reviewed on appeal. S3.—Same—Indeterminate Sentence—Reform of Judgment. Where, upon trial of murder, the verdict assessed the punishment at ninety-nine years in the penitentiary, and the trial court failed to comply with the indeterminate sentence law, the judgment will be reformed on appeal.
76 Tex. Crim. 314Bodine v. State (1915)
Assignation House—Disorderly House—Charge of Court. Where the indictment charged the defendant with keeping an assignation 'house where people meet by mutual agreement, and the court submitted in his charge the -law of keeping a disorderly house, which is a different offense, the .same is reversible error. Following Ross v. State, 33 S. W. Rep., 972.
76 Tex. Crim. 316Brown v. State (1915)
76 Tex. Crim. 325Cutbirth v. State (1915)
The opinion states the case.
76 Tex. Crim. 326Cox v. State (1915)
The opinion states the case.
76 Tex. Crim. 335Reed v. State (1915)
1.—Perjury—Indictment. Where, upon trial of perjury, the indictment followed approved precedent, the same was sufficient. 8.—Same—Sufficiency of the Evidence. Where, upon trial of perjury, the evidence sustained the conviction, there was no reversible error on that ground. Davidson, Judge, dissenting. 3.—Same—Evidence—General Reputation. Where, upon trial of perjury, the defendant attacked the reputation of the chief State’s witness for virtue and chastity, there was no error in permitting the State to introduce testimony of. her general reputation for virtue and chastity. d.—Same—Evidence—Hearsay—Declaration of Third Parties. Where, upon trial of perjury based upon testimony of the defendant given upon trial of slandering a female, the defendant introduced testimony that the chief prosecuting witness admitted that she had carnal intercourse with a certain party, which said prosecuting witness denied, it was reversible error to admit testimony that said third party had testified on the chief trial, towit, that of slander, that he had not had carnal intercourse with said prosecuting witness, as this was purely hearsay, especially under the charge of the court in limiting said hearsay testimony to the credit of defendant’s witness. 5.—Same—Place of Holding Court—Recalling Jury. Where the trial was held at another place than the county courthouse, it was improper to recall the jury and permit the State to show the authority of'holding court at such place, although this may not have been reversible error.
76 Tex. Crim. 339Hart v. State (1915)
The opinion states the case.
76 Tex. Crim. 342Williams v. State (1915)
1.—Murder—Charge of Court—Objections. Where the record did not show when the requested charges were presented; the same can not be considered in the absence of a bill of exceptions under the law as it now stands; besides, the court correctly refused them. 0.—Same—Sufficiency of the Evidence. Where, upon trial of murder assessing the death penalty, the evidence was sufficient to sustain the conviction, there was no reversible error. 3.—Same—Murder—Statutes Construed—Express and Implied Malice— Death Penalty. Under the murder statute abolishing the two degrees of murder, the death penalty can be inflicted even when the evidence does not show express malice, but shows beyond a reasonable doubt an unlawful killing with malice aforethought, whether that malice is express or implied. The punishment is left to the jury and ranges from imprisonment for five years to and inclusive of the death penalty.
76 Tex. Crim. 346Johnson v. State (1915)
1. —Murder—Declarations of Defendant—Bill of Exceptions. In the absence of a bill of exceptions with reference to an objection to the admission of defendant’s declaration, the same cannot be considered on appeal; besides, if considered, the same was admissible. 2. —Same—Misconduct of the Jury. In the absence of evidence with reference to the misconduct of the jury, in that one of the jurors declared if he had had time he would have hung the jury, the same cannot be considered; besides, the juror will not be allowed to impeach his verdict in this way, 3. —Same—Jury and Jury Law. Where it did not appear from the record that defendant had learned with reference to the prejudice of the juror since the trial, but must have known before trial, there was no error on this ground. 4. —Same—Misconduct of Jury. Where it was contended that one of the jurors considered evidence which had been excluded, but the record showed that this was not the case, and it appeared that the court heard evidence and overruled all these matters, there was no error.
76 Tex. Crim. 347Howard v. State (1915)
The opinion states the case.
76 Tex. Crim. 348Clark v. State (1915)
1. —Pandering—Indictment—Description of House. Where, upon trial of pandering, the indictment followed approved precedent, there was no error in overruling a motion to quash the indictment, and it was not necessary to allege the specific house of ill-fame. Following Sprague v. State, 44 S. W. Rep., 837, and other eases. 2. —Same—Continuance—Representation by Counsel. Where defendant was ably represented by counsel on the trial of the case, and the motion for continuance did not show that defendant desired any witnesses other than those in attendance upon trial, there was no error in overruling the motion. 3. —Same—Evidence—Name of House. Where the indictment alleged that defendant procured a certain female to enter a place where prostitution was encouraged or allowed, there was no error in admitting testimony to support this allegation, and it was not necessary to name the house in the indictment. 4. —Same—Evidence—Reputation of House. Where the indictment alleged that defendant procured a certain female to enter a house where prostitution was allowed, there was no error in admitting testimony as to the bad reputation of said house as a place of prostitution, and that an arrest of prostitutes was made therein, and that such general reputation of the house extended some time back. Following Golden v. State, 34 Texas Crim. Rep., 143, and other cases. 5. —Same—Charge of Court—Definition. It was not necessary for the court to define in his charge the terms “prostitution” and “house of ill-fame,” as the meaning of these words is well understood. 6. —Same—Definition of Offense—Charge of Court. While the court should not have copied the entire section defining the offense of pandering, hut only the subdivision which is charged in the indictment, yet as he only submitted said subdivision and restricted the jury to the consideration thereof in applying the law to the facts, there was no reversible error. 7. —Same—Charge of Court—Different Counts. ■ Where, upon trial of pandering, the indictment charged two counts, the second of which only was submitted by the court, there was no error in refusing a special instruction submitting the first count and not the second count, the evidence supporting a conviction under said second count, and the court otherwise properly charging on the evidence thereunder. 8. —Same—Motion for Uew Trial—Affidavit. Where an affidavit of one of the main State’s witnesses was attached to the motion for new trial alleging that the witness testified falsely in several particulars on the trial of the case, but the other evidence in the case sustains such conviction without such testimony, there was no error. 9. —Same—Charge of Court—Additional Instructions—Indeterminate Sentence Law. Where, upon trial of pandering, the jury asked for additional instructions as to the application of the indeterminate sentence law, and the court correctly charged what was meant thereby, there was no reversible error, although the court should have informed the jury that they had nothing to do with the application thereof. 10. —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. [Rehearing denied March 17, 1915.—Reporter.]
76 Tex. Crim. 353McCallan v. State (1915)
1. —Local Option—Statement of Facts—Record—Practice on Appeal. Where, upon appeal from a conviction of a violation of the local option law, there was no statement of facts on the trial of the main case or any question arising in it in the record, the case must be decided on other questions shown by the record. 2. —Same—Juvenile Court—County Court—Practice. Where the complaint and information filed in the County Court charged defendant with making an unlawful sale of intoxicating liquor charging a misdemeanor and did not indicate the age of the defendant, and the cause was transferred on motion of defendant to the Juvenile Court docket, and afterward changed back to the regular docket for the trial of criminal eases, where the court assessed the lowest penalty for a violation of the local option law, there was no reversible error. 3. —Same—Juvenile Court—Age of Defendant—Discretion of Court. Where defendant was charged with a violation of the local option law as a misdemeanor, and filed a sworn plea that he was under sixteen years of age, and the record showed on appeal that the proof did not sustain said plea, the judgment must be affirmed; however, even if he was under the age of sixteen years, the County Court committed no reversible error in trying him for said offense as in other eases. 4. —Same—Statutes Construed—Legislative Intent—Repeal by Implication. Evidently it was the intention of the Legislature that all the laws passed upon the subject of juvenile criminals were to be construed together as one whole, and that it was not the intention of the Legislature to repeal articles 2199 to 2200, inclusive, of the Revised Civil Statutes, by implication. 5. —Same—Felony—Legislative Intent. Taking the whole legislation on the subject of juvenile criminals, this court can not believe that the Legislature intended that a male person under seventeen years of age shall not under any circumstances be punished as a felon, as illustrations could be made which it seems to this court would preclude such an idea. Following Campbell v. State, 63 Texas Crim. Rep., 595, and other cases. 6. —Same—Misdemeanor — Juvenile Court — Statutes Construed — Delinquent Child. While article 1205, Code Criminal Procedure, was expressly repealed by the Act of April 2, 1913, article 2199 of the Revised Civil Statutes was not amended or expressly repealed, and, under the latter, the County or District Court may order a child coming under the definition of a delinquent, who is charged with the commission of a misdemeanor, to be prosecuted under the criminal laws of this State as other persons charged with a misdemeanor are prosecuted; if the proper order is properly entered. Davidson, Judge, dissenting; [Rehearing denied March 17, 1915.—Reporter.]
76 Tex. Crim. 353McCallen v. State (1915)Affirmed
Infants <⅜=>18 — Juvenile Offendeks — Prosecution — Jueisdiotion. Act April 2, 1889 (Acts 21st Leg. c. 85), incorporated in Code Cr. Proc. 1895, as articles 1145 and 1146, provided that, when a male person under 16 years of age was convicted of felony, and his imprisonment was assessed at 5 years, he should be committed to the reformatory. Act April 5, 1907 (Acts 30th Leg. e. 65), in ten sections defines and prescribes the procedure for trial of a delinquent child. Act April 5, 1907, was copied in the Code Or. Proc. 1911 as articles 1197 to 1206; the earlier act being incorporated as articles 1195 and 1196. The revisers also included the same act in Rev. St. 1911, as articles 2191 to 2201, inclusive. Both compilations were adopted by the Legislature. Acts 33d Leg. e. 112, amended Code Or. Proc. 1911, arts. 1195 to 1207, and at the special session of the Legislature (Acts 33d Leg. [Sp. Sess.] c. 6), Rev. St. 1911, arts. 5221-5234, relating to the same general subject, were amended and re-enacted. Act 1907, §§ 9, 30, appearing in Rev. St. 1911 as articles 2199-2201, were not changed. Code Or. Proc. 1911, art. 1195, as amended, provides that, when a male juvenile under 17 years of age is indicted for a felony, he may set up that fact, and the court shall have the power to dismiss the prosecution and try the juvenile as a delinquent. Rev. St. 1911, art. 5229, contains similar provisions, while article 2Í99 provides that the county or district court may order a delinquent child, charged with crime, to be prosecuted under the criminal laws of the state as other criminals, but that no child under 16 years of age shall be so prosecuted without the order being first entered. Held that, as repeals by implication are not favored, Rev. St. 1911, arts. 2299, 2200, were not repealed, and the district court had jurisdiction to try a juvenile offender. [Ed. Note. — Eor other cases, see Infants, Cent. Dig. § 18; Dec. Dig. ⅞^>18.] Davidson, J., dissenting.
76 Tex. Crim. 358Walderen v. State (1915)
The opinion states the case.
76 Tex. Crim. 360Ex Parte Craig (1915)
The opinion states the case.
76 Tex. Crim. 361Herrera v. State (1915)
Leaving out formal averments, the information and complaint charged that the defendant did then and there unlawfully, wilfully and without justification desert, neglect and refuse to provide for the support and maintenance of his wife, Mrs. C. Herrera, who is in destitute and necessitous circumstances, against the peace and dignity of the State.
76 Tex. Crim. 363Rutherford v. State (1915)
Illegally Practicing Medicine—Statement of Pacts—Information. Where, upon trial of unlawfully practicing medicine, defendant appealed from a conviction, and the transcript showed a sufficient information, the judgment must he affirmed, in the absence of a statement of facts which was stricken out on motion of the State.
76 Tex. Crim. 364Greenwood v. State (1915)
Theft of Automobile—Misdemeanor. Under the recent Act of the Legislature, the theft of an automobile is a misdemeanor, and can not be tried in the District Court. Following Sparks v. State, recently decided.
76 Tex. Crim. 364Rios v. State (1915)
The opinion states the case.
76 Tex. Crim. 365Barnes v. State (1915)
1.—Occupation—Intoxicating Liquors—Local Option—Evidence—Internal ¡Revenue License. Upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, it was reversible error to permit the county attorney to testify that the paper he picked up from the floor was an application by the defendant to procure a United States revenue license, and to testify as to the contents thereof without laying the proper predicate of the loss of the paper, etc. Following Haun v. State, 13 Texas Crim. App., 383, and other cases. 3.—Same—Evidence—Declaration of Third Party. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, it was error to admit in evidence the declarations of the county attorney to the internal revenue officer that he thought that the officer could sell a liquor license to the defendant.
76 Tex. Crim. 367Staples v. State (1915)
The opinion states the case.
76 Tex. Crim. 379Carney v. State (1915)
1.—Obstructing Public Bead—Insufficiency of Evidence. Where, upon trial of obstructing, injuring, etc., a public road, the evidence did not correspond with the allegations in the complaint and information as to the description of the road, the conviction could not be sustained. 8.—Same—Evidence—Willful Obstruction. Where, upon trial of wilfully obstructing a public road, the court ruled out testimony as to a letter written by the county judge to the defendant giving him implied permission to erect the obstruction, and failed to instruct the jury as to the definition of the word, “wilful,” there being also testimony that the Commissioners Court impliedly, at least, gave the defendant permission to erect the alleged obstruction, the same was reversible error.
76 Tex. Crim. 379Carnery v. State (1915)
76 Tex. Crim. 381Offricht v. State (1915)
The opinion states the case.
76 Tex. Crim. 384Keets v. State (1915)
The opinion states the case.
76 Tex. Crim. 386Marshall v. State (1915)
The main State’s witness substantially testified as follows: That on the night of the homicide he had been opossum hunting with defendant and deceased, the latter being defendant’s brother-in-law; that they had all been drinking freely from a bottle of whisky, and before proceeding very far, concluded to return and go to the house of deceased; that while there some wordy altercation occurred between defendant and deceased, who had, up to that time, been friendly; that the…
76 Tex. Crim. 392Barker v. State (1915)
1.—Concealing Stolen Property—Accomplice—Charge of Court. Where, upon trial of receiving stolen property, the evidence showed that a certain State’s witness was an accomplice, the court’s failure to submit a special requested instruction thereon was reversible error. 3.—Same—Case Stated—Accomplice—Charge of Court. Where, upon trial of receiving stolen property, the evidence showed that one of the State’s witnesses was with the defendant when the hack was secured in which the stolen goods were conveyed, and that one of the horses hitched to said hack belonged to the witness; that the witness remained with the defendant during the night and was there when the burglars brought the stolen property to defendant’s house, got up and made a fire for them, etc., the court should have submitted a requested charge whereby the jury was to determine whether said witness was an accomplice. 3.—Same—Evidence—Search—Hearsay—Acts and Declarations of Third Parties. Upon trial of receiving and concealing stolen property, it was reversible error to admit testimony that some twelve months after the burglary during which the alleged property was stolen, the officers were informed, by a party who was not placed on the witness stand, that a certain article had been stolen from said burglarized house and that such article was at defendant’s house, and that, thereupon, the officers went to said house and made a search, without informing either defendant or his wife of their purpose, testifying to all the details of said search and finally finding a similar article in a trunk, it being an issue whether said article belonged to the wife of the defendant or the alleged owner of the stolen goods, there not being sufficient evidence to show that it was the latter’s property; besides, the testimony as to the details of such search were clearly inadmissible.
76 Tex. Crim. 397East v. State (1915)
The opinion states the case.
76 Tex. Crim. 398Jones v. State (1915)
1.—Perjury—Indictment—Precedent. Where, upon trial of perjury, the indictment followed approved precedent, ' there was no error in overruling a motion to quash. ' 0.—Same—Materiality of Testimony—Indictment. Where, upon trial of perjury, the indictment alleged among other things that the alleged perjured testimony consisted in the defendant’s denial that the party who was investigated by the grand 'jury for pursuing the business of selling intoxicating liquors in prohibition territory, had possession of such liquor, the same was a material allegation, and there was no error in overruling a motion to quash. 3. —Same—Possession of Intoxicating Liquors—Perjury. Where the alleged perjured testimony was given before the grand jury, and consisted in the denial hy the defendant that the party who was prosecuted for following the occupation of selling intoxicating liquors in local option. territory had in his possession intoxicating liquors, this was a material inquiry and formed the basis for a prosecution for perjury, as such possession was material evidence before the grand jury in said investigation. Following Wagner v. State, 53 Texas Crim. Rep., 306, and other cases. 4. —Same—Rule Stated—Material Testimony. False testimony is material not only when directly pertinent to the issue, but also if it tended to augment or diminish damages or to import greater credit to substantial parts of the evidence. Following Lawrence v. State, 2 Texas Crim. App., 479. 5. —Same—Rule Stated—Basis of Perjury. Perjury may consist not only in false and corrupt testimony relative to-the main facts immediately at issue, hut also in such testimony relative to material circumstances which tend to'prove that issue and irrespective of the truth or falsity of the main fact at issue. Following Bradberry v. State, 7 Texas Crim. App., 375. 6. —Same—Rule Stated—Material Testimony. It is not necessary that defendant should have sworn falsely as to every matter of fact material to be proved upon the trial; if his false testimony be material as to any one fact, it is sufficient. Following State v. Lindenburg, 13 Texas, 27, and other cases. 7. —Same—Rule Stated—False Statement If the false statement is alleged to be material or so appears from the facts stated, it will be deemed material if it could, have influenced the tribunal in which it was made. Rahm v. State, 30 Texas Crim. App., 310, and other cases. 8. —Same—Rule Stated—Allegation of Material Statement. The materiality of the alleged false statement is sufficiently alleged if it is, simply averred that it was material to the issue. If such averment is made, the indictment need not show how the testimony became material. Following Massie v. State, 5 Texas Crim. App., 81, and other cases. 9. —Same—Rule Stated—Province of Court. It is the province of the court, and not the jury, to pass upon the materiality of the alleged false statement. Following Dunnahoe v. State, 14 Texas Crim. App., 638, and other cases, and, therefore, it was not error to so instruct the jury. 10. —Same—Sufficiency of the Evidence. Where, upon trial of perjury, the testimony. was sufficient to sustain the conviction under a proper charge of the court, there was no reversible error. 11. —Same—Continuance—Immateriality of Testimony. Where the second application for continuance showed that the alleged absent testimony was wholly immaterial, there was no error in overruling same. 13.—Same—Evidence—Immunity—Public Policy. Neither the district attorney nor anyone else had the power or authority to make any binding agreement with the defendant that he would not be prosecuted for perjury committed in his testimony before the grand jury before it was given; such agreement would be against public policy and void, and there was, therefore, no error in striking out defendant’s plea setting up this promise of immunity. 13. —Same—Evidence—Foreman of Grand Jury. Where the perjury was based upon the testimony of defendant before the grand jury, to the effect that he did not get any intoxicating liquors from a certain party and that said party did not have any such intoxicating liquors in his possession, there was no error in permitting the foreman of the grand jury to testify that defendant so testified before the grand jury, and to show this fact also by the district attorney. 14. —Same—Evidence—Witness’s Response. Upon trial of perjury, there was no error in admitting pertinent testimony which although not in direct answer to the question put, was admissible. 15. —Same—Evidence—Hypothetical Questions. Where the alleged hypothetical question was not based on the testimony in the case, there was no error in sustaining an objection thereto, 16. —Same—Evidence—Admission of Defendant. Upon trial of perjury, where defendant testified himself and denied that he had made a statement, or a statement was made in his presence and hearing by another, that there was no use to swear a lie about it because the officers had seen him get the liquor in question, there was no error in permitting the State to impeach his testimony and show by his implied admissions that he' testified falsely on the original trial. 17. —Same—Evidence—Foreman of Grand Jury. Upon trial of perjury, there was no error in permitting the foreman of the grand jury to testify that the defendant was duly sworn before that body, and the nature of the investigation which was pursued by them. 18. —Same—Charge of Court. Where, upon trial of perjury, the court gave a full, clear and apt charge on the facts, there was no error in refusing special requested charges. 19. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of perjury, the evidence was direct, there was no error in the court’s refusal to charge on circumstantial evidence. Following Ballard v. State, 71 Texas Crim. Rep., 168, and other cases. 20. —Same—Material Inquiry—Selling Intoxicating Liquors. Where, upon trial of perjury, the defendant was charged with giving false testimony before the grand jury, in that he denied that the party who was prosecuted for pursuing the occupation of selling intoxicating liquors in local option territory delivered to him such intoxicating liquors or had the same in his possession; it was material to show on the trial for perjury that this testimony was false and that said party did have in his possession at the time in question such intoxicating liquors. Following Oliver v. State, 68 Texas Crim. Rep., 414. 31.—Same—Sufficiency of the Evidence. Where, upon trial of perjury, the indictment alleged that the defendant falsely testified before the grand jury that the party prosecuted for following, the occupation of selling intoxicating liquors in local option territory did not deliver to defendant or have in his possession such intoxicating liquors, and . the testimony for the State fully sustained such allegations, there was no reversible error under a proper charge of the court. 22.—Same—Evidence—TTo Reversible Error. Where, as a matter of fact, the testimony objected to was not admitted <on the trial, but if admitted, constituted no error, there was no reversible error.
76 Tex. Crim. 410Scott v. State (1915)
1. —Theft of Turkeys—Continuance—Want of Diligence. Where the motion for continuance showed a want of diligence in not stating the correct name of the absent witness whom the sheriff could, therefore, not find, there was no error in overruling same; besides, the alleged absent testimony in nowise contravened the State’s testimony. 2. -—Same—Argument of Counsel. Where the argument of the State’s counsel was a mere criticism of the evidence offered in behalf of the defendant, the same presented no error. 3. —Same—Circumstantial Evidence—Charge of Court—Misdemeanor. Where two of the alleged turkeys were identified as those stolen from the prosecuting witness, and the evidence further showed that all the turkeys recovered corresponded with those alleged to have been stolen, there was no error in the court’s failure to charge on circumstantial evidence; besides, no written charge was requested. 4.—Same—Argument of Counsel—Charge of Court. Where State’s counsel referred to the defendant as “Turkey Tom,” and then as a “Gobbler,” in a trial of a misdemeanor case, and the court orally instructed the jury that this was improper and required the county attorney to refer to defendant by his true name only, there was no error. 6.—Same—Evidence—Conversation. Where defendant elicited part of the conversation, there was no error in permitting the witness to state the whole conversation. 6. —Same—Sufficiency of the Evidence. Where, upon trial of theft of turkeys, the evidence sustained the conviction, there was no error. 7. —Same—Ex Parte Affidavits—Practice on Appeal. This court can not consider ex parte affidavits filed for the first time in this court, and simply passes on the record as made in the trial court. Following Pye v. State, 71 Texas Crim. Rep., 94, 154 S. W. Rep., 222.
76 Tex. Crim. 413Wilson v. State (1915)
T.—Carrying Pistol—Continuance—Attachment—Misdemeanor. In misdemeanor eases, the Code of Criminal Procedure requires that attachments shall be applied for for witnesses who do not live in the county where the prosecution is pending, and, where this was not done, there was not sufficient diligence; besides, the bill of exceptions was defective in not showing the facts expected to be proven. Following Garrett v. State, 37 Texas Crim. Rep., 198, and other cases. 8.—Same—Evidence—Bill of Exceptions. Where the bill of exceptions does not set out the testimony to which objection was sustained, the same can not be considered on appeal. 3.—Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Where State’s counsel in his argument stated that the prosecuting witness’s testimony stood before the jury unimpeached, and uncontroverted by any witness or circumstance in the case, the same was not a direct or indirect allusion to defendant’s failure to testify. [Behearing denied May 5, 1915.—Beporter.]
76 Tex. Crim. 415Ex Parte Super (1915)
The opinion states the case.
76 Tex. Crim. 416Allen v. State (1915)
1.—Receiving and. Concealing Stolen Property—Former Jeopardy. Upon trial of receiving and concealing stolen property, where it appeared that the defendant had been acquitted of the offense of burglary out of which the transaction grew in the instant case, the court correctly struck out a plea of former jeopardy based on said acquittal, and there was no error in the court’s failure to charge thereon. Under the Criminal Code and Code of Criminal Procedure, the prosecution and conviction for burglary will not even bar a prosecution for theft or any offense growing out of or connected therewith. Following Loakman v. State, 32 Texas Crim. Rep., 563. 3.—Same—Charge of Court—Separate Offenses. Where, upon trial of receiving and concealing stolen property, the State introduced defendant’s testimony on the burglary trial and other evidence, and it was sufficient to authorize a conviction for receiving and concealing stolen property, but the defendant introduced testimony that he stole the property himself, but did not receive and conceal it, the court’s failure to charge the jury as requested to acquit the defendant if they found that the defendant committed the burglary or was a principal therein, was reversible error.
76 Tex. Crim. 419Ex Parte Lawson (1915)
The opinion states the case.
76 Tex. Crim. 419Hale v. State (1915)
Forgery—Suspension of Sentence—Statement of Facts—Bills of Exception —Motion for New Trial. Where, upon trial of forgery, defendant pleaded guilty and prayed for a suspension of sentence, which the jury ignored and assessed his punishment at two years confinement in the penitentiary, from which defendant appealed, the judgment must be affirmed in the absence of a statement of facts, motion for new trial and bills of exception; the indictment being sufficient.
76 Tex. Crim. 423Hatch v. State (1915)
1. —Wife Desertion—Sufficiency of the Evidence. Where, upon trial of a wife and child desertion under the Act of April 2, 1913, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. 2. —Same—County Court—Jurisdiction—Temporary Absence. Where, upon trial of wilful wife and child desertion, the evidence showed that the said wife and child had resided for six months next preceding the filing of the complaint, etc., in the county of the prosecution, there was no error in overruling defendant’s contention that the County Court of that county had no jurisdiction, and a temporary absence therefrom of the said wife and child could not be deducted from said time. 3. —Same—Complaint—Information—Necessaries of Life. Where, upon trial of wilful wife and child desertion, the complaint and information followed the language of the statute, that the wife and child were then and there in destitute and necessitous circumstances, the same was sufficient, and it was not necessary to allege that the wife and child were without the necessaries of life, etc. 4. —Same—Ex Parte Affidavits—Practice on Appeal. This court is bound by what the record shows was testified to in the trial of the lower court, and is not authorized nor permitted to consider ex parte affidavits filed in this court as to evidence not before the lower court; besides, the matters contained in the affidavit occurred long after the trial, and it was not claimed that the same was newly discovered testimony.
76 Tex. Crim. 428Terrell v. State (1915)
The opinion states the case.
76 Tex. Crim. 439Dodson v. State (1915)
The opinion states the case.
76 Tex. Crim. 442Stewart and MacKley v. State (1915)
1.—Murder—Illegal Arrest—Charge of Court. Where, upon trial of murder, the evidence raised the issue of an attempted illegal arrest by deceased and his companion of the defendants, and the court submitted this issue in a proper charge as well as self-defense in connection therewith, there was no reversible error. Following Miller v. State, 32 Texas Crim. Rep., 319, and other cases. Davidson, Judge, dissenting. 8.—Same—Rule Stated—Arrest—Private Person—Escape. Where the law provides that a private person may arrest one who has ■committed a felony and is escaping or attempting to escape, and defendant .knows deceased’s purpose, his killing deceased by resisting and shooting him •constitutes murder, although deceased did not inform defendant that he was an officer of the law, etc. ■3.;—Same—Rule Stated—Arrest Without Warrant. It is both the right and the duty of a private person who is present when a felony is committed to apprehend the felon without waiting for the issuance of a warrant, and the arrest may be made at any subsequent time as well as at the time of the commission of the felony. Following Staples v. State, 14 Texas Crim. App., 136, and other cases. 4.—Same—Case Stated—Murder—Attempted Arrest. Where, upon trial of murder, the evidence showed the defendants in the dead hour of the night attempted to burglarize, if they did not at first actually burglarize said house, and that, just before they had fully completed the burglary, they were frightened away by the companion of the deceased who communicated the fact to him; that deceased and his companion armed themselves and awaited their return in plain view of the reflection of the hotel lights, when defendants returned heavily armed to complete the burglary, when they were again frightened away upon seeing deceased and his companion who hailed them and they attempted to escape and thereupon shot and killed the ■deceased, the conviction of murder was sustained under a proper charge of 'the court. Davidson, Judge, dissenting. ■5.—Same—Self-defense—Charge of Court—Attempted Arrest. Where, upon trial of murder, the evidence raised the issue of self-defense in connection with the attempted arrest by deceased and his companion of defendants, and the court submitted this issue, there was no error in not sub.mitting self-defense independent of said attempted arrest. Davidson, Judge, dissenting. i6.—Same—Evidence—Burglary—Attempted Arrest. Where, upon trial of murder, the evidence disclosed that the deceased and 'his companion attempted to arrest the defendants, who were found in the act of committing burglary and when they were detected, attempted to escape, there was no error in admitting all the circumstances surrounding the transaction ■of the burglary or attempted burglary, and which led to the identification of the defendants as the persons who were engaged therein. Following Jacobs v. State, 28 Texas Crim. App., 79, and other cases. Davidson, Judge, dissenting. '7.—Same—Fugitives from Justice—Notice of Arrest—Rule Stated. " Where the parties attempted to be arrested were at the time fugitives from justice and attempted to escape while detected in the commission of a felony, they were thereby charged with notice of the object of the persons in pursuing and attempting to arrest them. Following Cortez v. State, 43 Texas Crim. Rep., 315, and other cases. 8. —Same—Arrest—Charge of Court—Notice of Purpose to Arrest. Where, upon trial of murder, the evidence showed that defendants while attempting to escape when they were detected by deceased and his companion in attempting to commit the offense of burglary, if they had not already committed same, and deceased and his companion hailed and attempted to arrest them, when they turned and shot and killed deceased, and the court, in his charge, instructed the jury that it was the duty of the deceased and his companion to inform the defendants of their purpose, if they had time or opportunity to do so and the defendants’ right to resist illegal arrest, and also submitted the right of self-defense in such event, a conviction of murder will not be disturbed, under the facts of this case. Davidson, Judge, dissenting. 9. —Same—Buie Stated—Arrest—Notice of Arrest. If-a party about to be arrested knows the capacity and purpose of the officer, it is not necessary for the officer to make known said purpose or in what capacity he is acting, and where, upon trial of murder, the defendants must have known when they attempted to escape when they were detected by the deceased and his companion in the commission of burglary, the purpose of deceased and his companion to arrest them for such offense, and, thereupon, turned upon them and shot and killed deceased, they were guilty of murder under a proper charge of the court. Following Miller v. State, 31 Texas Grim. Rep., 609, and other cases. Davidson, Judge, dissenting.
76 Tex. Crim. 473Etheridge v. State (1915)
The opinion states the case.
76 Tex. Crim. 480Nowlin v. State (1915)
1.—Burglary—Evidence—Identification of Property. Upon trial of burglary, there was no error in admitting testimony that the officers, as soon as they were informed of the burglary, searched for the stolen goods and the guilty party; that they searched defendant’s house and found in his and his brother-in-law’s trunk two of the shirts which were identified as some of the stolen goods from the burglarized railroad car; although defendant denied that he had gotten these articles and produced others of a like kind, which he said the officers got out of his trunk; this was a question for the jury. 3.—Same—Evidence—Other Offenses. Where, upon trial of burglary, the defendant testified that he did not participate in said offense as allegd, and also showed this by another witness, whereupon, the State in rebuttal, introduced testimony of another burglary which had occurred shortly before the' one for which defendant was being tried, and that articles were taken during said prior burglary, some of which were found afterwards in defendant’s possession, but failed to prove in addition to this testimony of an accomplice that said prior burglary had taken place and said articles had been taken, the same should not have been admitted over the objections of defendant. 3. —Same—Other Offenses—Charge of Court—Additional Charges. Where, upon trial of burglary, the court permitted the State by the testimony of an accomplice to show that a prior burglary had been committed; that some of the stolen articles, which were taken during said burglary, were found in the possession of defendant, hut this testimony was not corroborated by other witnesses, and the court, thereupon, submitted a charge limiting the same to the purpose of identity, res gestae and system, but afterwards withdrew said charge after counsel for the defense had objected thereto and closed their argument to the jury, and then submitted another charge which was on the weight of the testimony and limited to an entirely different purpose, and refused to permit counsel to argue the proposition submitted in the second charge, the same was reversible error. 4. —Same—Charge of Court—Statutes Construed—Practice. Since the amendment of articles 735, 737, 737a and 743, Code Criminal Procedure, the court must deliver his charge before the argument of counsel, and if article 737a, supra, is to he literally construed, the court has no right over defendant’s objection to change his charge or to give any additional charge, especially, after the argument of counsel is concluded, except those mentioned in this article; yet, when all the statutes and decisions upon this subject are considered, it can not be held that the court in no instance could change his charge when he finds that the same is erroneous, but when he submits such charge, he should give counsel an opportunity to argue the same and regulate the time to be consumed therefor; besides, the charge was upon the weight of the evidence, and reversible error, 5.—Same—Evidence—Rule Stated—Other Offenses—Accomplice. The rule that, independent crimes by an accused are ordinarily inadmissible is well established, but it is equally well established that there are certain exceptions to this rule, and where, upon the trial of burglary, the State could show in addition to the testimony of an accomplice that prior to the burglary for which defendant was being tried, a similar burglary was committed and that defendant delivered certain articles taken during said prior burglary to other parties, which the officers claimed were found in his'possession and identified as part of the property stolen during said prior burglary, the same would be admissible in evidence; however, if such proof could not be made, then the court should exclude all the testimony of the accomplice as to said prior burglary. Following Wyatt v. State, 55 Texas Crim. Rep., 73, and other cases.
76 Tex. Crim. 486Matthews v. State (1915)
The opinion states the case.
76 Tex. Crim. 487Simonds v. State (1915)
1. —Theft of Goats—Continuance—Attorney and Client. Where defendant’s motion to continue the cause on the ground that his principal attorney was absent, the same was addressed to the equitable power of the court, and as defendant had two attorneys to represent him, the court did not abuse his discretion in overruling the motion for continuance. 2. —Same—Same—Change of Venue—Affidavit. Where, upon trial of theft of goats, after the application for a continuance on the ground of the absence of defendant’s principal counsel was overruled, he presented an application for change of venue supported by affidavit sworn to before counsel of defendant, which he offered to supply by proper affidavits before the clerk, and the State demurred because the affidavit was taken before the defendant’s counsel as notary public, and the court declined to permit the defendant to file proper affidavits so that the application for change of venue could be heard, the same was reversible error, as defendant had not announced ready for trial. 3. —Same—Case Stated—Change of Venue. Where defendant had drawn his application for change of venue in accordance with the provisions of the Code; no controverting affidavit being filed, and when objection was made by the State it was sworn to before one of the defendant’s counsel, he asked leave and permission to have it sworn to before the clerk; this permission should have been granted, and if no controverting affidavit was filed, defendant was entitled to have the venue changed as a matter of right; otherwise, he had a right to introduce evidence on his motion. 4. —Same—Jury and Jury Law—Change of Venue. Where, upon trial of theft of goats, the defendant asked one of the jurors if there was not in the county general prejudice against him, to which the court sustained an objection, after he had ovérruled defendant’s application for change ,of venue, and every avenue was thus closed as to defendant’s showing that a condition existed which would authorize a change of venue, although an application for a change of venue was filed in time, the same was reversible error. 5. —Same—Evidence—Change of Brand and Mark. Upon trial of theft of goats, there was • no error in admitting testimony that the witnesses looked at some of the brands and marks of the goats and that the same appeared to have been changed. 6. —Same—Evidence—Practice in District Court. Upon trial of theft of goats, the court did not err in refusing to have the goats brought into court, a view of the goats by the jury was not permissible, but the defendant by proper application should have been permitted to view the goats if they were in possession of the prosecution, and then with other witnesses could have testified to the brand, etc. 7. —Same—Expert Testimony. .Where the witness qualified himself as an expert, it was permissible for him to testify that he had examined the brand on the alleged stolen goats and that the same had the appearance of having been burned over, etc. 8. —Same—Competent Witness. Where witness had been found guilty of theft, but his sentence was suspended and no final judgment had ever been pronounced against him, he was a competent witness. 9. —Same—Evidence—Defendant as a Witness—Credibility of Witness. Where defendant took the stand as a witness, it was permissible to show that there was another indictment pending against, him for felony, the court properly limiting said testimony to his credibility. 10. —Same—Charge of Court—Suspending Sentence. Upon trial of theft of goats, where defendant made an application for the suspending of the sentence in the event he was convicted, it was error for the court to instruct the jury that they could not suspend the sentence, unless they found that defendant had never before been guilty of a felony, and had also theretofore borne a good reputation as a law-abiding citizen, as this was a limitation on the jury’s right to suspend the sentence. 11. —Same—Rule Stated—Suspension of Sentence—General Reputation. Evidence of the prior reputation of defendant is admissible where he seeks a suspension of sentence, to aid the jury in passing on that issue, but the only prerequisite to the right of the jury to suspend the sentence, if they desire to do so, is that they must first find that he had not theretofore been convicted of a felony, and the court, in his charge, should not require that they also find that his prior reputation had been that of a law-abiding citizen. IS.—Same—Sufficiency of Evidence—Practice on Appeal. Where the judgment is reversed and the cause is remanded on other grounds, it is not necessary to discuss the. sufficiency of the evidence; however, it should have been shown that the alleged property was or had been in the defendant’s possession.
76 Tex. Crim. 492Brannan v. State (1915)
1. —Forgery—Motion for New Trial—Statement of Facts—Bill of Exceptions—Notice of Appeal. Where the notice of appeal was only vaguely referred to in the sentence and no notice of appeal otherwise appeared of record, the judgment must be affirmed, in the absence of a motion for new trial, bill of exceptions or a statement of facts, the indictment being sufficient. 2. —Same—Notice of Appeal—Sentence. Where notice of appeal is given in open court, and the sentence bears evidence of this fact, the jurisdiction may be conferred upon this court; however, an indefinite notice of appeal referred to in the sentence is insufficient to confer jurisdiction upon this court. Following Young v. State, 41 Texas Crim. Rep., 247. Distinguishing Lewis v. State, 39 S. W. Rep., 370.
76 Tex. Crim. 493Gonzales v. State (1915)
The opinion states the case.
76 Tex. Crim. 496Head v. State (1915)
Carrying Pistol-Want of Criminal Intent—Charge of Court. Where, upon trial of unlawfully carrying a pistol, the evidence did not show a violation of the pistol law, but that defendant was carrying the pistol to a third party who had purchased it, and did not materially deviate from his course of travel to carry out his purpose, although he became involved in a personal difficulty, and defendant requested special charges to cover this phase of the case, which was refused by the court, whose charge was upon the weight of the evidence, the same was reversible error.
76 Tex. Crim. 499Baldwin v. State (1915)
1.—Theft—Information—Description of Property. Where the information described the alleged stolen property as one suit of clothes of the value of $10, a motion to quash for insufficient description thereof was correctly overruled. 8.—Same—Complaint—Information—Fraudulent Taking. Where the complaint and information in a prosecution for theft failed to allege the fraudulent taking of the property from the alleged owner, the same was insufficient, and the same were fatally defective. Following Watt v. State, 61 Texas crim. Rep., 662, and other cases. 3. —Same—Charge of Court—Recent Possession. Where, upon trial of theft, the evidence raised the issue that defendant purchased the alleged stolen property, the court should have charged thereon according to former precedent, although he correctly refused a special instruction thereon. Following Wheeler v. State, 34 Texas crim. Rep., 350, and other cases. 4. —Same—Receiving Stolen Property—Requested Charge. Where, upon trial of theft, the evidence raised the issue that defendant knowingly received the alleged stolen property, he was guilty of receiving stolen property, but not of the theft, and the court should have so charged as requested. Following McAfee v. State, 14 Texas Crim. App., 668, and other cases. 5.—Same—Peremptory Instructions. Upon trial of theft, where the evidence supported the allegations in the indictment, there was no error in the court’s failure to give a peremptory charge to acquit,
76 Tex. Crim. 501Francis v. State (1915)
The opinion states the case.
76 Tex. Crim. 502Davis v. State (1915)
The opinion states the case.
76 Tex. Crim. 504Bankston v. State (1915)
The opinion states the case.
76 Tex. Crim. 508Guyton v. State (1915)
The opinion states the case.
76 Tex. Crim. 508Smith v. State (1915)
Burglary—Newly Discovered Evidence—Statement of Facts—Bill of Exceptions. In the absence of a statement of facts and bills of exception, nothing can be reviewed except the question of the alleged newly discovered testimony, and as this was so well known to the defendant before as subsequent to the trial, there was no reversible error.
76 Tex. Crim. 509Ex Parte McCallan (1915)
Belator contended that the verdict of the County Court convicting him of a violation of the local option law and assessing his punishment at a fine of $25 and twenty days in jail was contrary to the laws of the State and that the County Court was without jurisdiction.
76 Tex. Crim. 510Ryan v. State (1915)
Theft of Hog—Indictment—Possession. Where, upon trial of theft of hogs, the indictment failed to allege that the hogs were taken from the possession of any one, the same was fatally defective, and advantage could - be takene of this defect for the first time in this court. Following Lyttleton v. State, 20 Texas Crim. App., 168, and other cases,
76 Tex. Crim. 511Ex Parte Young (1915)
Bobbery—Habeas Corpus—Continuance by State. Where the record on appeal did not show that relator could not give bond in the sum fixed by the court, the fact that the State had continued the case twice furnished no ground for relator’s discharge.
76 Tex. Crim. 512Arnold v. State (1915)
1.—Theft—Swindling. Where, upon trial of misdemeanor theft, the facts showed that if defendant was guilty of any offense, it was that of swindling, and not theft, the judgment must be reversed and the cause remanded. . 2.—Same—Statutes Construed. Where, in the fraud practiced, the title to the property is passed, the offense is swindling, and not theft; but if mere possession is obtained by false pretenses and the title does not pass, the offense is theft. Following Underwood v. State, 49 Texas Crim. Rep., 285, and other cases.
76 Tex. Crim. 513Brown v. State (1915)
1. —Rape—Consent—Indictment. Upon trial of rape upon a female under the age of consent, it was not necessary to allege in the indictment that the offense was committed without her consent. Following Mayo v. State, 7 Texas Crim. App., 342, and other cases. 2. —Same—Child Witness—Discretion of Court. Where, upon trial of rape, prosecutrix was only six years of age and was examined hy the court as to her competency to testify, who found her a competent witness in his discretion, there was no reversible error. Following Hawkins v. State, 27 Texas Crim. App., 273. 3. —Same—Name of Prosecutrix—Variance. Where the indictment charged that the rape was committed upon Dorothy Cohen, and her mother testified that the child’s name was Dorothy, hy which name she was known, hut the prosecutrix, who was a girl of six years of age, spelled her name “Dorthea,” this did not constitute any variance. 4. —Same—Evidence. Upon trial of rape upon a female under the age of consent, it was not necessary to show force, yet all of defendant’s acts during the transaction were admissible in evidence. 5. —Same—Evidence. Where, upon trial of rape upon a small child, it was shown that a lady interfered and prevented the defendant from committing actual rape, there was no error in permitting a prosecuting witness to testify the length of time she had been acquainted with said lady. 6. —Same—Sufficiency of the Evidence—Requested Charge. Where, upon trial of rape upon a female under the age of consent, the evidence sustained the conviction, there was no error in refusing a charge to acquit the defendant. 7. —Same—Argument of Counsel. Where counsel for defendant simply objected to the remarks of State’s counsel, and the court sustained the objection and instructed the jury to disregard them, and State’s counsel withdrew them ■ and no hill was reserved, there was no reversible error; besides, the argument of counsel was not objectionable. 8. —Same—Practice on Appeal—Motion for New Trial. A motion for new trial should state each ground relied upon so that the trial court may have an opportunity to correct his error, if any*
76 Tex. Crim. 516Smith v. State (1915)
1.—Passing Forged Instrument—Different Counts in Indictment—Variance. Where defendant was charged with forgery in one count, and, in another, ■with passing a forged instrument and was convicted on the last count, the fact that there was a variance in the first count did not vitiate the second count in the indictment. 8.—Same—Case Stated—Indictment. Where the jury specifically found the defendant guilty under the second count of the indictment charging the passing of a forged instrument, and as a refusal by the court to quash the first count charging forgery rendered no evidence admissible that would not have been admissible had the court sustained the motion, there was no error. Following Lafferty v. State, 56 S. W. Rep., 623, and other eases.
76 Tex. Crim. 518Becker v. State (1915)
Simple Assault—Statement of Facts—Bills of Exception. Where, upon appeal from a conviction of simple assault in the County Court, the bill of exceptions and statement of fact were filed too late, and without the proper order of the court, the same can not be considered; besides, if considered, there was no reversible error.
76 Tex. Crim. 519Bain v. State (1915)
The opinion states the case.
76 Tex. Crim. 520Beckham v. State (1915)
The opinion states the case.
76 Tex. Crim. 523Ghent v. State (1915)
The opinion states the case.
76 Tex. Crim. 539Mooney v. State (1915)
1.—Receiving and Concealing Stolen Property—Indictment. Where the indictment charged that the theft of the cattle occurred in the county of the prosecution and the receiving and concealing thereof in another county, and otherwise followed approved precedent, the same was sufficient. 3.—Same—Venue—Jurisdiction. Where the theft of the alleged cattle was committed in the county of the prosecution and defendant lived and received and concealed the same in another county, the county of the prosecution had jurisdiction and venue of the case. 3. —Same—Change of Venue—Discretion of Court. Where defendant’s motion to change the venue under both grounds of the statute was directly controverted by the State, and the trial judge, after hearing the evidence, under his discretion overruled the motion for change of venue, there was no reversible error, although the evidence was conflicting. 4. —Same—Rule Stated. The question of change of venue is left largely to the discretion and sound judgment of the trial judge, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue unless it is clear that such court has abused his discretion. Following Tubb v. State, 55 Texas Crim. Rep., 606, and other cases. 5. —Same—Evidence—Ownership—Identification. Upon trial of receiving and concealing stolen cattle, where the witnesses fully identified same by the flesh-marks, there was no error in permitting them to state that the cattle belonged to them. 6. —Same—Evidence—Person Unknown—Indictment. Where the indictment alleged that the defendant received said cattle from a person to the grand jurors unknown, there was no error in admitting testimony of the district attorney and grand jurors in support of this allegation. 7. —Same—Brand—Ownership—Identity—Knowledge of Defendant. Upon trial of receiving and concealing stolen cattle, there was no error in admitting testimony as to the changing of the brands on said cattle at the time defendant received the same to show guilty knowledge of defendant, and the proof of unrecorded brands was admissible to prove both ownership and identity under the Act of March 31, 1913. Following Turner v. State, 71 Texas Crim. Rep., 477. 8. —Same—Evidence—Defendant as a Witness—Civil Cause. Upon trial of receiving and concealing stolen cattle, there was no error in admitting testimony as to what defendant testified to in the Federal Court in a civil cause, wherein the alleged owners of said cattle were plaintiffs and the defendant the defendant therein; with reference to the ownership and possession of said cattle. 9. —Same—Evidence—Insanity—Rebuttal. Where, upon trial of- receiving and concealing stolen cattle, the defense had introduced some testimony tending to raise the issue -of defendant’s sanity, there was no error to admit testimony in rebuttal as to defendant’s mental condition at the time it was claimed he bought said stolen cattle, and at the time he testified in the civil action brought against him by the prosecuting witnesses. 10. —Same—Charge of Court—Requested Charges. Where, upon trial of receiving and concealing stolen cattle, the court’s charge, in connection with the requested charges by defendant submitted by the court, correctly applied the law under the facts of the case, there was no reversible error. 11. —Same—Evidence—Surprise. Where, upon trial of receiving and concealing stolen cattle, the same testimony of one of the alleged owners had been given on the former trial of the ease, defendant’s counsel could not claim surprise on account thereof. 13.—Same—Insanity—Charge of Court. Where, upon trial of receiving and concealing stolen cattle, the defendant pleaded insanity, which issue was submitted in a proper charge of the court as drawn by - defendant’s attorney, and the jury found the same untrue, there was no reversible, error. 13. —Same—Argument of Counsel—Bystander’s Bill—Requested Charge. Where the hill of exceptions to the argument of State’s counsel was qualified by the court to the extent that no request was ever made on behalf of the defendant that the court instruct the jury not to consider the remarks of State’s counsel, the same must be accepted by this court, in the absence of a bystander’s bill, and the naked statement of the attorneys on this question can not be considered; besides, the request was not in writing as to the court’s charge. 14. —Same—Argument of Counsel—Case Stated. Where State’s counsel, in his opening argument, upon trial of receiving and concealing stolen property, stated that the story of the thievery of which defendant is the head rivaled the stories of Robin Hood of ancient days; that he was the captain of cow thieves, and was at the head of an underground system, leading from the pasture of the prosecuting witnesses down to another county terminating in defendant’s pasture where the cattle were found, and that this system of cattle stealing must he broken up, the same was not reversible error, where defendant’s sole plea was insanity and said remarks of State’s counsel could in no event have affected the jury, and was a legitimate comment on the facts in evidence. Following Bass v. State, 16 Texas Crim. App., 62, and other cases. 15. —Same—Rule Stated—Argument of Counsel. To reverse in all eases in which counsel did not confine themselves to the record would render trials farces, and unless such argument was clearly calculated to prejudice the rights of the defendant, the same is not reversible error. Following House v. State, 19 Texas Crim. App., 227, and other cases. 16. —Same—Rule Stated—Argument of Counsel. When an objectionable statement is made in argument not authorized by the evidence nor a deduction tliérefrom, the mere objection thereto, in the absence of a requested charge to withdraw the same, does not present reversible error. Following Hatchell v. State, 47 Texas Crim. Rep., 380, and other cases. 17. —Same—Rule Stated—Argument of Counsel. Unless the remarks of counsel are obviously of a nature to impair the rights of the defendant or prejudice his case before the jury, such remarks, though improper, will not be considered reversible error, unless a charge was asked and refused, and exception reserved thereto. Following Kennedy v. State, 19 Texas Crim. App., 618, and other cases. 18. —Same—Rule Stated—Requested Charges—Argument of Counsel. It is true that this court has reversed some cases, even where the requested charges were given, but these are exceptions, and not the rule, and each case must rest upon its own facts. 19. —Same—Argument of Counsel—Case Stated. Even conceding that the language of State’s counsel was improper, still under the circumstances of this case, the same are not reversible error, as they were not of such material nature as to impair the rights of the defendant or of such grave character as to render them obviously injurious to him. 20. —Same—Objections to Charge of Court. Where this court inadvertently overlooked the fact in the record that defendant had objected properly to the charge of the court, in the original opinion, but, nevertheless, fully considered such objections in defendant’s appeal,' there was no reversible error.
76 Tex. Crim. 555Barnett v. State (1915)
Tried below before the Hon. Wm. Pierson. . Appeal from a conviction of murder; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case.
76 Tex. Crim. 594Ritter v. State (1915)
1.—Forgery—Indictment—Possession of Forged Instrument—Pleading. An indictment must be tested by itself under the law as a pleading; it can be neither supported nor defeated as such by what evidence is introduced on the trial, and when tested by this rule, the indictment for forgery was sufficient and that the instrument alleged was one showing a pecuniary obligation, the same was sufficient. Z.—Same—Explanatory Averments—Indictment. Where, upon trial of forgery, the indictment made the necessary explanatory averments of the alleged forged instrument, the same was sufficient. Following Chappel v. State, 58 Texas Crim. Rep., 52, and other cases. 3. —Same—Sufficiency of the Evidence. Where, upon trial of forgery and having a forged instrument in possession with intent to use in passing, the evidence sustained the conviction, there was no reversible error. 4. —Same—Charge of Court. Where, upon trial of forgery, the court gave a charge applicable to the facts of the ease, there, was no reversible error. 5. —Same—Charge of Court—Practice in District Court. It is not necessary for the court to tell the jury what the statute is and lay down general principles of law, and where upon trial of forgery the court’s charge required the jury to believe every single fact necessary to show defend-, ant’s guilt and was otherwise sufficient, there was no reversible error. 6. —Same—Evidence—Incorporation. Where, upon trial of forgery, defendant pleaded not guilty and failed to file a plea under oath that the alleged company was not duly incorporated, it was not incumbent upon the State to prove such incorporation. Following White v. State, 61 Texas Crim. Rep., 498, and other cases. 7. —Same—V ariance. 0 Where the indictment alleged that one S. Naylor had authority to issue a certain discharge certificate, which was made a part of the indictment, and the contention that there was a variance in the name between the allegations and the proof was not borne out by the record, there was no error. Following Feeny v. State, 62 Texas Crim. Rep., 585, and other cases.
76 Tex. Crim. 602Kellar v. State (1915)
The opinion states the case.
76 Tex. Crim. 604Richardson v. State (1915)
1.—Murder—Newly Discovered Evidence—Statement of Facts. In the absence of a statement of facts this court can not tell whether the alleged newly discovered evidence was simply cumulative or not, or whether the same would have produced different results, and it must presume that, the trial court correctly overruled the motion for new trial. 3.—Same—Misconduct of Jury—Evidence De Hors the Record. Where the defendant complained that the jury received other testimony than that adduced on the witness stand, and the court heard testimony thereon and found adversely to the defendant, and it also appeared in the record that the alleged remarks in the jury room could not have influenced the jury in finding their verdict, there was no reversible error.
76 Tex. Crim. 606Manly v. State (1915)
The opinion states the case.
76 Tex. Crim. 609Blalock v. State (1915)
The opinion states the case.
76 Tex. Crim. 612White v. State (1915)
The opinion states the case.
76 Tex. Crim. 619Galan v. State (1915)
76 Tex. Crim. 633Allen v. State (1915)
1.—Assault to Rape—Sufficiency of the Evidence. Where, upon trial of assault with intent to rape, the evidence was sufficient to sustain the conviction, there was no error. Following Washington v. State, 51 Texas Crim. Rep., 543, and other eases. 3.—Same—Intent—Sufficiency of the Evidence. Where, upon trial of assault with intent to rape, the only intent defendant had, as shown by the evidence, when lie assaulted the prosecutrix, was to rape her, the same was sufficient to sustain a conviction.
76 Tex. Crim. 636McQueen v. State (1915)
Carrying Pistol—Insufficiency of the Evidence—Own Premises—Intent. Where, upon trial of unlawfully carrying a pistol, the evidence showed' that the defendant carried the alleged pistol from his residence to his place of business, and also showed that he carried the same under circumstances which would not be unlawful and showed no intent to violate the law, these matters should have been submitted to the jury, and a refusal to do so as requested was reversible error. [Behearing denied June 9, 1915.—Beporter.]
76 Tex. Crim. 639Ex Parte Williamson (1915)
The opinion states the case.
76 Tex. Crim. 642Taylor v. State (1915)
1.—Using Obscene Language Over Telephone—Complaint—Information.. Where, upon trial of using vulgar, etc., language over and through a telephone, the complaint and information followed the statute, article 471, Penal Code, the same was sufficient. 8.—Same—Information—Date of Offense. Where the complaint and information alleged that heretofore, etc., defendant committed the alleged offense, the contention that the pleadings were-insufficient in that the offense is not alleged to have been committed before they were filed is untenable. Following Wilson v. State, 15 Texas Crim. App., 150, and other cases. 3. —Same—Information—Telephone Company. It was not necessary, upon trial of using vulgar, etc., language over and’ through a telephone, to allege that the telephone company was a copartnership, corporation, joint-stock company or individual firm. Following Steiner v. State, 33 Texas Crim. Rep., 291. 4. —Same—Information—Pleading. Upon trial of using obscene language, etc., over a telephone, it was not' necessary to allege that said telephone was in operation and capable of use= at the time; besides, said information did so allege. 5. —Same—Information—Disturbing Others. Upon trial of using obscene language, etc., over a telephone, it was not. necessary to allege that the language so used was heard by any one or more persons or was calculated to disturb, etc. 6. —Same—Charge of Court—Time of Offense. Where there was nothing in defendant’s contention that the testimony did not show that the offense was committed before the complaint and information was filed, there was no error. 7. —Same—Charge of Court. The mere statement of the proposition that prosecuting witness had it. within her power to prevent defendant from using obscene language over the-telephone by disengaging the' telephone shows that this contention is untenable. 8. —Same—Argument of Counsel—Allusion to Defendant’s Failure to Testify. Where there was no reference by the county attorney to defendant’s failure to testify and he did not except to the argument, there was no reversible error.
76 Tex. Crim. 645Clark v. State (1915)
The opinion states the case.
76 Tex. Crim. 647Eads v. State (1915)
1. —Murder—Charge of Court—Actual and Apparent Danger. Where, upon trial of murder, the evidence showed that from the language and acts of deceased viewed in the light of the threats that had been com-. municated to defendant, the latter thought his life in danger, etc., and the court charged the jury that if deceased made an attack on the defendant for the purpose of taking life or inflicting serious bodily injury, or if from acts or words of the deceased at the time, it then reasonably appeared to the defendant that he was in danger, etc., even though there was no actual danger in fact, but only apparent danger, from which it appeared to the defendant, etc., that his life was in danger, etc., to acquit the defendant, such charge did not limit his right of self-defense to an actual attack, and there was no error on that ground. Davidson, Judge, dissenting. 2. —Same—Charge of Court—Threats. Where, upon trial of murder, the defendant claimed threats by the deceased, which the State contested, and the court charged the jury that if they found from the evidence that the deceased made threats against the life of the •defendant and that such threats had been communicated to him, etc., or if they found that report of threats had been communicated to the defendant, whether they were actually made or not, etc., to acquit the defendant, such •charge did not require the jury that the deceased actually made the threats. Davidson, Judge, dissenting. 3. —Same—Charge of Court—No' Conflict. Where, upon trial of murder, the court in submitting his charge on self-defense on the issue of threats did not require the jury to find that deceased actually made the threats, when the charge is carefully read, and also submitted a special charge requested by the defense in which he emphasized the defendant’s right to act upon threats as though they had been actually made, although they had in fact not been made, the contention that there was a conflict in the court’s charge is untenable. 4. —Same—Implied Malice—Charge of Court. Where defendant had been tried under the old law of murder and acquitted of express malice or murder in the first degree, but found guilty of implied malice, or murder in the second degree, and the judgment was set aside, he could again be tried for' murder upon implied malice. 5. —Same—Statutes , Construed—Legislative Intent. The Legislature has never repealed the law defining a killing upon implied malice as murder, but merely consolidated and defined as one offense murder upon express and upon implied malice. •6.—Same—Evidence—General Reputation. Where, upon trial of murder, different witnesses were permitted to testify that the reputation of defendant’s wife for virtue and chastity was good, there was no error, inasmuch as defendant testified to an act of carnal intercourse between deceased and defendant’s wife, the defendant placing the transaction at such time and place that no other witness could have seen the same, and not calling his wife as a witness. Following Cameron v. State, 69 Texas Crim. Rep., 439. 7.—Same—Evidence—Circumstances. Where, upon trial of murder, defendant had not yet testified that he had killed the deceased, and the State’s case at that juncture depended upon circumstantial evidence, there was no error in admitting testimony that the sheriff. after the arrest of the defendant made search for arms and found a pistol and some cartridges in the loft of defendant’s premises. 8. —Same—Evidence—Undisclosed Motive of Deceased. Upon trial of murder, there was no error in admitting testimony that a certain store building was used for lodge purposes and that a lodge met there on the night of the killing, and deceased was on his way to the lodge; the defendant’s objection simply being that such testimony was irrelevant and prejudicial to the defendant, but none of the jurors belonging to any lodge, and there being no objection as to the undisclosed motive of the deceased. Following Carter v. State, 37 Texas Crim. Rep., 403, and other cases. Davidson, Judge, dissenting. 9. —Same—Evidence—Circumstances—Motive. Where defendant, upon trial of murder, testified to certain hostile acts of deceased upon which he relied as a justification, testimony by the State that deceased was on his way to a meeting of the lodge could not, and would not, in the least, tend to explain any of said hostile acts, and-in the absence of an objection that defendant was not aware that deceased traveled this road on his way to the lodge and such facts were unknown to him, there was no reversible error. Davidson, Judge, dissenting. 10. —Same—Actual Attack—Apparent Danger. Where the court’s charge did not confine the danger upon actual attack, but upon reasonable appearances of danger, as, it appeared to the defendant, a criticism that defendant’s right of self-defense was made to depend upon actual attack is not well taken. Davidson, Judge, dissenting. 11. —Same—Threats—Charge of Court. Where, upon trial of murder, the court did not require the jury thai the alleged threats by the deceased against the defendant had been actually made, but instructed them if threats had been communicated to the defendant, whether actually made or not, he would have the right to shoot and kill, if deceased at the time, by his acts or words manifested an intention to kill defendant or do him some serious bodily injury, there was no' error; nor was this charge in any conflict 'with the requested charge submitted on' the same subject. Following Buckner v. State, 55 Texas Crim. Rep., 511, and other cases. Davidson, Judge, dissenting. 13.—Same—Evidence—Motive of Deceased. Upon trial of murder, there was no error in admitting testimony that deceased was on the way to attend a lodge at the time of the killing, there being no objection on the ground that the, motive of the deceased was unknown to the defendant. Following McGrath v. State, 35 Texas Crim. Rep., 413, and other cases. Davidson, Judge, dissenting. 13. —Same—Rule Stated. Where the objection is to the admissibility of testimony, the very ground of objection should be stated, and grounds not stated can not be considered on appeal. Following McGlasson v. State, 38 Texas Crim. Rep., 351, and other cases. 14. —Same—Stating Facts in Opinion. Where, in the motion for rehearing, exception was taken to the court’s statement in the opinion as to the State’s theory that defendant took a certain road home, etc., and hid himself in a depression, etc., and such statement was borne out by the facts, there was no error; besides, this question had no bearing on the questions raised on appeal.
76 Tex. Crim. 660Curtis v. State (1915)
1.—Burglary—Private Residence—Pormer Jeopardy—Carving. Where, upon trial of burglary of a private residence in the night-time, defendant pleaded former jeopardy showing that he had been indicted for the same transaction for an ordinary burglary, and had gone to trial thereon be- ' fore a jury. Held, that the same was insufficient as the two offenses are separate and distinct, and the doctrine of carving does not apply. 53.—Same—Evidence—Newspaper Article—Contradicting Witness. Upon trial of burglary, there was no error in not permitting the defendant to introduce in evidence a newspaper article in which it was claimed the prosecuting witness had made contradictory statements to his testimony on trial. Davidson, Judge, dissenting. S.—Same—Sufficiency of the Evidence. Where, upon trial of burglary. of a private residence in the night-time, the evidence sustained the conviction, there was no reversible error. Davidson, Judge, dissenting. [Behearing denied May 19, 1915.—Beporter.]
76 Tex. Crim. 663Egbert v. State (1915)
The opinion states the case.