77 Tex. Crim.

Volume 77 — Texas Criminal Reports

152 opinions

77 Tex. Crim. 1Dillard v. State (1915)
The opinion states the case.
77 Tex. Crim. 19Parish v. State (1915)
The opinion states the case.
77 Tex. Crim. 20Johnson v. State (1915)
1. —Poll Tax Receipt—Indictment—Duplicitous Pleading.. Where the indictment was so drawn as to contain in one count a misdemeanor and a felony and two separate and distinct offenses, the same was duplicitous. 2. —Same—Negative Exceptions. It is not necessary for the indictment to negative the exceptions in the statute; these were matters of defense. Hollowing Mizzell v. State, 59 Texas. Crim. Rep., 226, and other cases. 3. —Same—New Indictment. .See opinion suggesting that a new indictment he found, ordering the case hack to the District Court for further orders.
77 Tex. Crim. 22Stallings v. State (1915)
1.—Scire Facias—Principal and Surety. The statute requires' that the judgment nisi against the principal and the sureties shall be for the full amount of the bond against the principal and each of the sureties, and there was no error on this ground. 2.—Same—Sufficiency of Bail Bond, Where, upon trial of scire facias proceedings, the hail bond complied with the requirements of the statute, the same was sufficient, and there was no reversible error.
77 Tex. Crim. 25Johnson v. State (1915)
1. —Poll Tax Receipt—Indictment—Duplicitous Pleading. A misdemeanor and a felony, representing separate and distinct offenses can not be charged in the same count of an indictment, as this would be duplicitous pleading. 2. —Same—Jurisdiction. See opinion suggesting that the pleadings should be confined to one of the statutes. Appeal from the County Court of Palo Pinto. Tried below before the Hon. J. T. Ranspot.
77 Tex. Crim. 26Sunday v. State (1915)
The opinion states the case.
77 Tex. Crim. 30Stephens v. State (1915)
The opinion states the case.
77 Tex. Crim. 31Anderson v. State (1915)
1. —Theft of Hogs—Sufficiency of the Evidence. Where, upon trial of theft of hogs, the evidence sustained a conviction under a proper charge of the court, there was no reversible error. 2. —Same—Swindling—Theft—Distinction Drawn. To constitute swindling, the pretense or representation must consist of a statement of some pretended existing fact or past event made for the purpose of inducing the prosecutor- to part with his property; no statement of anything to take place in future will be a pretense within the provisions of the Code, and mere false promises of future intention, are insufficient. Following Johnson v. State, 41 Texas, 65, and other cases. 3. —Same—Case Stated—Theft—Consent of Owner. Where, upon trial of theft of hogs, the evidence showed that defendant got possession of them with the consent of the owner who delivered the same to defendant’s agent, and who relied upon defendant’s promise that he would send the money back by said agent, and the evidence showed that the taking of said hogs, though originally lawful, was obtained by a false pretext and fraudulent intent to deprive the owner of the value thereof, he was guilty of theft under article 1332, Penal Cole. Following, Porter v. State, 23 Texas Crim. App., 295, and other cases. 4. —Same—Judicial Construction—Swindling—Theft. See opinion for discussion of the different articles in the Penal Code on swindling and theft, drawing the distinction between the two offenses. 5. —Same—Statutes Construed. Where, upon trial of theft of hogs, it appeared from the record on appeal that the prosecution might have been maintained under another article of the Penal Code yet showed also that the defendant was prosecuted and convicted for theft under the proper article of the Penal Code there was no reversible error. Following Lewis v. State, 48 Texas Crim. Rep., 309.
77 Tex. Crim. 37Aven v. State (1915)
1.—Arson—Accomplice—Sufficiency of the Evidence. Where, upon trial of an accomplice for arson, the evidence sustained the conviction, there was no reversible error. 2.—Same—Evidence—Principal. Upon trial of an accomplice to arson, there was no error to introduce evidence to show the guilt of the principal. Following Simms v. State, 10 Texas Crim. App., 131, and other cases. 3. —Saíne—Evidence—Bill of Exceptions. Where, upon trial of accomplice for arson, the record showed on appeal that the State introduced the whole of said principal’s testimony on his trial in the trial of the instant case, and defendant objected generally without objecting to that part of the testimony which may have been inadmissible, there was no reversible error. Following Ortiz v. State, 68 Texas Crim. Rep., 524, and other cases. 4. —Same—Evidence—Co-conspirator. Upon trial of accomplice for arson, where the court admitted testimony showing the guilt of the principal, properly limiting said testimony to said purpose, there was no reversible error.
77 Tex. Crim. 38Bunker v. State (1915)
The opinion states the case.
77 Tex. Crim. 52Stacy v. State (1915)
1. —Murder—Continuance—Want of Diligence. Where, upon trial of murder, the application for a continuance showed a want of diligence on the part of the defendant- to apply and have issued process for the alleged absent witness, there was no reversible error in overruling same. Davidson, Judge, dissenting. 2. —Same—Discretion of Court—Continuance—Not Matter of Bight. The accused is not entitled as a matter of right to a continuance; the truth of his application therefor, ae well ae the merits of the ground and its sufficiency is addressed to the sound discretion of the trial court, and he must affirmatively show due diligence. 3. —Same—Buie Stated—Diligence—Negligence. Diligence in securing the attendance of a witness is in the highest degree essential, and a continuance should invariably be refused when the want of diligence amounts to pure negligence. Following Greenwood v, States, 9 Texas Crim. App., 638, and other cases. 4. —Same—Rule Stated—Diligence—Burden on Defendant. No rule of law requires the State to show a want of diligence in opposition to a continuance; it devolves upon the defendant to show affirmatively and distinctly that he has used all the diligence required by law to obtain his witness. Following Walker v. State, 13 Texas Crim. App., 618, and other cases. 5. —Same—Buie Stated—Presumption. Neither this court nor the trial court will supply by inference or presumption allegations not contained in an application for continuance which should be stated therein; the application must be complete in itself. Following Massie v. State, 30 Texas Crim. App., 64. 6. —Same—Process by State—Diligence, When, The fact that a subpoena had been issued for the absent witness by the State upon which the defendant based his application for continuance is not sufficient diligence, in the absence of a showing that said witness had already been served with a subpoena, and even then upon application to the trial judge, the defendant or his attorneys could have had another subpoena issued for this same witness. Davidson, Judge, dissenting. 7. —Same—Setting Case for Trial—Knowledge of Defendant. The defendant and his attorneys can not claim as an excuse for not applying for the issuance of a subpoena for the alleged absent witness on the ground that they did not know that the court had set the case for trial on a certain -date; they are presumed to know, and the slightest diligence would have informed them. 8. —Same—Want of Diligence—Residence of Witness. Where the application for continuance did not, show at what time the defendant ascertained that the witness was a resident of the county to which he claimed process issued, the diligence is insufficient. Following Hughes v. State, 18 Texas Crim. App., 130, and other cases. 9. —Same—Process by Opposite Party—Want of Diligence. While either party may avail himself of process issued for witnesses by the opposite party, the partly relying for a continuance thereon must be able to show that diligence was used by the opposite party, and where, as in the instant case, this was not shown there was no reversible error. Following Mixon v. State, 36 Texas Crim. Rep., 66, and other cases. Davidson, Judge, dissenting. 10. —Same—Immateriality of Testimony—Testimony Probably Hot True. The truth, merit and sufficiency of an application for a continuance are matters addressed to the sound discretion of the court, and where the alleged absent testimony was not of a material character and probably not true, there was no error in overruling defendant’s application for a continuance. Following Carver v. State, 36 Texas Crim. Rep., 552, and other cases. Davidson, Judge, dissenting. 11. —Same—Rule Stated—Motion for New Trial. The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement unless it is made to appear in the motion for new trial that by the evidence adduced at the trial the proposed absent testimony was relevant, material, and probably true. Following Koller v. State, 36 Texas Crim. Rep., 496, and other cases. 13.—Same—Rule Stated—Motion for New Trial. Unless the motion for new trial shows in connection with the overruling of the motion for a continuance that defendant might reasonably procure a different result on the trial of the case by reason of the absent testimony, there is no reversible error. Following Land v. State, 34 Texas Crim. Rep., 330, and other cases. 13. —Same—Case Stated—Continuance. Where it appeared from the record on appeal that the trial judge could have correctly concluded that the absent witness would not testify as defendant alleged he would) and that even if he did, his testimony in that respect would not be probably true, no' reversible error is presented in overruling defendant’s motion for a continuance. Davidson, Judge, dissenting. 14. —Same—Evidence—Husband and Wife—Cross-examination. Where, upon trial of murder, it became a material question whether the open knife which was found upon the body of the deceased some time after he was killed was defendant’s knife, and defendant introduced his wife as a witness, whose testimony tended to show that it was not defendant’s knife, there was no error in permitting the State, on cross-examination of the wife, to examine her with reference to this matter. 15. —Same—Threats of Deceased—Evidence—Cross-examination of Defendant’s Wife. Where, upon trial of murder, defendant’s wife testified to a threat by the deceased against the defendant, there was no error in permitting the State on cross-examination to show that the defendant and the deceased had made up and were friendly after said alleged threats. Following Roberts v. State, 74 Texas Crim. Rep., 150. 16. —Same—Argument of Counsel—Bill of Exceptions—Practice. Where defendant complained of the remarks of State’s counsel that the court refused to permit him to object to the language of State’s counsel at the time it was being uttered, but required him to wait until the speech was completed, but the bill was so qualified that this contention was incorrect and that counsel was not required to wait, etc., there was no reversible error. Davidson, Judge, dissenting. 17. —Same—Evidence—Threats—Requested Charge. Where, upon trial of murder, the testimony of the State’s witnesses showing threats by the defendant against the deceased were clearly admissible to show the motive, malice and intent of the defendant, there was no reversible-error, and there was no error in the court’s failure to charge the jury not to-consider said testimony. 18.—Same—Charge of Court—Self-defense—More Than One Assailant. Where, upon trial of murder, the evidence showed that immediately prior to the time when defendant killed the deceased that his brother did not say or do anything showing an attack or any contemplated attack upon the defendant, there was no error in the court’s failure to charge upon the question of more than one assailant, the defendant’s testimony showing that the deceased alone made an attack upon him when he shot him, which was controverted by the State’s testimony. Davidson, Judge, dissenting.
77 Tex. Crim. 71Ex Parte Richie (1915)
The opinion states the case.
77 Tex. Crim. 72Ex Parte Sullivan (1915)
From Tarrant County. Original habeas corpus proceeding asking writ of habeas corpus and discharge of relator under a conviction in the Corporation Court and County Court under city ordinance of the City of Fort Worth; penalty, a fine of $10. The opinion states the case.
77 Tex. Crim. 108Howe v. State (1915)
1. —Murder—Evidence—Hearsay. Upon trial of murder, there was no error in refusing to admit testimony] as to what the drummers told the deceased had said about patronizing his stable, as this was merely hearsay. 2. —Same—Evidence—Threats. Upon trial of murder, there was no error in admitting in evidence testimony of threats, in this that the witness was with the defendant the latter part of July talking to him when the deceased drove by, and defendant then remarked to the witness he bet he would kill somebody before Christmas, it being a fact that defendant killed the deceased before Christmas, and other facts and circumstances in the record showed that the defendant referred to the deceased when he made this remark. Following Miller v. State, 31 Texas Crim. Rep., 609, and other cases. 3. —Same—Rule Stated—Threats. Though the name of the deceased be not mentioned when the threat is made, yet if it can be reasonably gathered from the evidence that the deceased was meant when the threat was mentioned, it is admissible. Following Williams v. State, 40 Texas Crim. Rep., 497, and other eases. 4. —Same—Evidence—Declarations of the Deceased—Withdrawal of Testimony. Where the court, after admitting the declarations of the deceased, reconsidered his action and withdrew the same from the jury, there was no reversible error. Following Roberts v. State, 48 Texas Crim. Rep., 216, and other cases. 5. —Same—Evidence—Declarations of the Deceased—IT ncommunieated Threats. Where, upon trial of murder, defendant introduced in evidence uncommunicated threats by the deceased to show the latter’s state of mind, and as to who began the difficulty, which was an issue in the case, there was no error in permitting the State to show that these uneommunicated threats did not correctly show the state of mind of deceased, but since uttering them, he had undergone a change of mind. 6. —Same—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of manslaughter, the complaint to the court’s charge' in not properly charging on manslaughter did not constitute reversible error. Following Eggleston v. State, 59 Texas Crim. Rep., 542. 7. —Same—Requested Charge. Where the requested charge was sufficiently embraced in the main charge, there was no reversible error, in the absence of any exception to the charge as given in the respect complained of. 8. —Same—Newly Discovered Evidence—Want of Diligence—Cumulative Evidence. Where the alleged newly discovered evidence was either cumulative or the motion for new trial showed a want of diligence to procure the same, there was no error in overruling the motion for new trial on that ground. 9. —Same—Misconduct of Jury—Declaration of Juror. Where defendant complained that one of the jurors had expressed an opinion that defendant should be severely punished, before he was taken upon the jury and after the facts had been detailed to the juror, but the evidence showed that the juror could not be positively identified and that he denied ever having made such statement as to the guilt of the defendant, there was no,error in overruling the motion for new trial.
77 Tex. Crim. 116Hammons v. State (1915)
1. —Murder—Evidence—threats—Co-defendant. Where defendant was jointly indicted with another for murder, hut was alone on trial, there was no error in not admitting in evidence threats that the deceased is alleged to have made against the co-defendant, it not being shown that the defendant had knowledge of such threats. 2. —Same—Charge of Court—Justifiable Homicide. ■ Where, upon trial of murder, the evidence showed that the deceased fled from the defendant and that defendant pursued him in hot haste, there was no error in refusing a requested charge that even if defendant and his companion pursued the deceased with the intention to kill him, yet if when they overtook the deceased, he drew a pistol and fired, defendant would be justified in killing him. 3. —Same—Self-defense—Charge of. Court—Evidence—Threats. Where, upon trial of murder, threats of the deceased were admitted in evidence, the court should have admitted the further declarations of the deceased made in the same conversation that he, deceased, had killed one man in Oklahoma, all of which was communicated to defendant. 4. —Same—Evidence—Undisclosed Motive of Deceased. Upon trial of murder, the court should not have admitted in evidence the undisclosed motive of the deceased in trying to evade a meeting with the defendant, in the absence of a showing that defendant was aware of this fact. 5. —Same—Charge of Court—Self-defense—Presumption. Upon trial of murder, if the evidence raised self-defense, the court should have instructed the jury that if deceased was armed with a pistol and shot at defendant, the law presumes that the deceased intended to kill defendant. Following Clark v. State, 56 Texas Crim. Rep., 494, and other cases. 6. —Same—Relative Strength of Parties—Charge of Court. Where, upon trial of murder, the defendant’s evidence showed that the deceased used a pistol in attacking defendant, the court should not have instructed the jury that they could take into consideration the relative strength of the parties, as it was irrelevant whether deceased was a smaller man than the defendant. 7. —Same—Charge of Court—Limiting Right of Self-defense. Where defendant’s charge unduly emphasized the issue limiting defendant’s right of self-defense, there was no error in refusing it. 8. —Same—Self-defense. See opinion expressing grave doubt whether the evidence in the case raised the issue of self-defense. Following Thumm v. State, 24 Texas Crim. App., 667.
77 Tex. Crim. 122Crowder v. State (1915)
1.—Arson—Indictment—Consent—Defensive Issue. Where, upon trial of arson, the indictment sufficiently and fully charged the offense of arson, as defined by article 1200 of the Penal Code, the same was sufficient and the State could introduce evidence thereunder; that although the owner of the house gave consent to burn it, the apparent danger by reason of said burning endangered the building of other houses, etc., and the consent of the owner was defensive matter. Davidson, Judge, dissenting. 2.—Same—Evidence—Insurance Policy—Oral Testimony. Where the contention of the State was that a conspiracy existed between defendant and the owner of the house alleged to have been burned by the defendant to burn same, and that said house carried insurance and was burned with the consent of the owner to obtain the insurance thereon, the best evidence that the house was insured was the policy of insurance, and this being within the jurisdiction of the court, should have been procured, and it was reversible error to admit oral testimony of the contents of such policy. 3. —Same—Remarks by Court. Upon trial of arson, it was improper by the court to remark in ruling on evidence that the objections of counsel was a by-play of the attorneys, etc. 4. —Same—Statutes Construed—Defensive Matter—Consent. . While it is true under article 1207, Penal Code, the owner of a house may destroy it by fire, etc., without incurring the penalty of the law; yet, under article 1208, Penal Code, he can not do so when the house is insured or when he endangers thereby his neighbor’s property as an incident to burning his own house, and he must bring himself within the statutory exceptions by way of defense, and when the State establishes the fact that defendant had caused fire to be set to said house, the case is made out by the State, and unless he shows matters of defense, he is guilty of, a violation of the law.
77 Tex. Crim. 127Jones v. State (1915)
1. —Murder—Statement of Facts. Where, upon appeal from a conviction of murder, the alleged statement of facts was not signed by anyone or approved by the presiding judge, the same can not be considered on appeal. 2. —Same—Bill of Exceptions—Continuance—Challenges. In the absence of a bill of exceptions, the overruling of an application for a' continuance and challenges to jurors can not be considered on appeal.
77 Tex. Crim. 128Lustress v. State (1915)
The opinion states the case.
77 Tex. Crim. 129Mills v. State (1915)
1. —Delinquent Child—Appeal—Habeas Corpus. Under the delinquent child statute, a conviction or trial thereunder is not the subject of appeal, and the remedy, if any, is by writ of habeas corpus. Following Ex parte Bartee, 76 Texas Crim. Rep., 285. 2. —Same—Married Woman. Where, under a conviction of the delinquent child statute, it was contended that the child convicted thereunder was a married woman under the age of eighteen years and was, therefore, not subject to punishment or correction, this can not be considered on appeal, and the remedy, if any, is by the writ of habeas corpus.
77 Tex. Crim. 130Satterwhite v. State (1915)
1. —Murder—Evidence—Other Offenses—Accusing Others of Crime. Where, upon trial of murder, the defendant sought to show that other parties had opportunity to commit the crime, there was no error in the refusal of the court to permit the defendant to prove that just prior to the alleged homicide certain night burglaries were committed in this community for the purpose of theft or robbery, it not being known who these parties were, etc.; and this, although the evidence wag purely circumstantial. Davidson, Judge, dissenting. 2. —Same — Evidence — Circumstances — Opinion of Witness — Shorthand Facts. Upon trial of murder which depended upon circumstantial evidence, the defendant should have been permitted on cross-examination of the State’s witness to show that the location of the dead body of the deceased was such that there was no obstruction and that a person of ordinary height on foot could easily have seen the body lying where it was found; this was not an opinion of the witness, but a short rendering of the facts, and it being an issue in the case was relevant testimony. 3. —Same—Evidence—Contradicting Witness—Recalling Witness. Where, upon trial of murder, a State’s witness who testified and was excused, the witness should not have been recalled by the State, and excerpts of her written testimony given by her before the justice of the peace at a coroner’s inquest read to her in the presence of the jury, she not having testified to a different statement before the jury to what she made before the coroner’s inquest. Prendergast, Presiding Judge, dissenting. 4. —Same—Evidence — Circumstances — Watch. — Time of Commission of Offense. Where, upon trial of murder, the prosecution depended upon circumstantial evidence and the State had introduced in evidence the statement of the defendant that he had not seen deceased after a certain hour of the night in which the homicide was supposed to have been committed, there was no error in admitting in evidence certain matters connected with the finding of a watch on the body of the deceased and that it showed on the dial of the watch that it had stopped running at a certain hour. Davidson, Judge, dissenting. 5. —Same—Evidence—Grand Jury—Unknown Instrument. The acts and conduct of the grand jury are not admissible in evidence against the accused, unless it be shown that the grand jury could have known the character of the instrument by which the homicide was committed, and where no issue of this kind was raised, such testimony was inadmissible. 6. —Same—Sufficiency of the Evidence. See opinion where doubt is expressed by one of the judges of this court that the evidence is sufficient to sustain a conviction.
77 Tex. Crim. 140Thompson v. State (1915)
The opinion states the case.
77 Tex. Crim. 143Hamilton v. State (1915)
1. —Burglary—Charge of Court—Bill of Exceptions. In the absence of a bill of exceptions to the charge of the court, the matter can not be reviewed on appeal. 2. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence was sufficient to sustain the conviction, there was no reversible error. 'See opinion for facts held sufficient to sustain a conviction for burglary.
77 Tex. Crim. 144Ex Parte Campbell (1915)
Habeas Corpus—Bail—Circumstantial Evidence. Where,' upon trial of habeas corpus, the evidence against relator was wholly circumstantial, but sufficient to show that an offense was committed by relator, there was no error in binding him over for the action of the grand jury.
77 Tex. Crim. 145Pritchard v. State (1915)
The opinion states the case.
77 Tex. Crim. 146Goodman v. State (1915)
1. —Robbery—Indictment. Where, upon trial of robbery, the indictment followed approved precedent, the same was sufficient. 2. —Same—Statement of Facts—Bills of Exception. In the absence of a statement of facts and bills of exception, the indictment being sufficient, the judgment must be affirmed.
77 Tex. Crim. 146Bell v. State (1915)
The opinion states the case.
77 Tex. Crim. 150Caruth v. State (1915)
1. —Keeping Gaming House—Social Club—Conduct and Remarks by-Judge. Where, upon trial of keeping a gaming house, the evidence showed that it was a negro social club, and one of defendant’s witnesses denied that gaming was carried on at the club room, whereupon, the court examined the witness, who insisted upon said denial, when the court, in the presence of the jury, ordered the sheriff to take the witness and lock him up in jail until an indictment for perjury could be filed against him, the same was reversible error. 2. —Same—Bill of Exceptions—Bystander’s Bill. Where, upon trial of keeping a gaming house, defendant pleaded not guilty and also filed a written application for a suspended sentence and appellant by his bystander’s bill showed that the court had ordered defendant’s witness to jail during the trial in the presence of the jury because the witness had testified that no gambling had taken place, this was an expression by the court on the weight of the testimony, and was reversible error, the jury having also disregarded the plea for a suspended sentence. Following Taylor v. State, 38 Texas Crim. Rep., 241, and other cases. 3. —Same—Suspended Sentence—Other Offenses. Where defendant was upon trial for keeping a gaming house and pleaded not guilty and also filed a written plea for a suspended sentence in the event of a conviction, it was reversible error to admit testimony of transactions in connection with the offense on trial, and the reputation and standing of defendant could only be affected by other prior transactions than that for which he was being tried, on his plea of suspended sentence. Following Fossett v. State, 55 S. W. Rep., 497.
77 Tex. Crim. 154Sparks v. State (1915)
The opinion states the case.
77 Tex. Crim. 156Collins v. State (1915)
Tarrant. Tried below before the Hon. R. B. Young. Appeal from a conviction of robbery; penalty, thirty-five years imprisonment in the penitentiary. The opinion states the case.
77 Tex. Crim. 183Brown v. State (1915)
The opinion states the case.
77 Tex. Crim. 185Howard v. State (1915)
The opinion states the case.
77 Tex. Crim. 200Lewis v. State (1915)
The opinion states the case.
77 Tex. Crim. 203Jones v. State (1915)
The opinion states the case.
77 Tex. Crim. 204Clifford v. State (1915)
Keeping Disorderly House—Sufficiency of the Evidence—Charge of Court —General Reputation. Where defendant was indicted with keeping and being concerned in keeping, and knowingly permitting to be kept her house, etc., for prostitution, both as owner, lessee and tenant, etc., and the evidence showed that she kept said house, or was concerned in keeping the same, it was not necessary to show that she was either the owner, lessee, or tenant of same, and it being shown by the evidence, outside of the general reputation of said house, that it was one kept for prostitution, and there being no exceptions to the charge of the court, the conviction is sustained.
77 Tex. Crim. 206Dooms v. State (1915)
Soliciting and Procuring—Prostitutes—Accomplice. Where upon trial of unlawfully soliciting, procuring, etc., a female, under article 498, Penal Code, the evidence showed that the chief State’s witness was an accomplice, the court’s failure to instruct on accomplice testimony was reversible error. Following Denman v. State, recently decided.
77 Tex. Crim. 207Giles v. State (1915)
1. —Robbery—Indictment—Pleading. Where, upon trial of robbery, the defendant’s contention that the pleader undertook in one count of the indictment to charge two separate and distinct offenses, was not well taken, there was no error in overruling a motion to quash. Following Green v. State, 66 Texas Crim. Rep., 446. 2.—Same—Statement of Facts, Stenographer—Capital Case. Where defendant was charged with a capital offense, and counsel was appointed to defend him, and the court stenographer made out a full and complete statement of facts in narrative form, and appellant’s counsel refused to file same, or to make out a statement of facts therefrom, there was no reversible error.
77 Tex. Crim. 209Cooper v. State (1915)
1. —Murder—Accomplice—Corroboration—Sufficiency of the Evidence. Where defendant was tried as an accomplice to murder, and the chief witness against him was his principal in the offense, who testified as the indictment alleged that the defendant then and there advised, commanded and encouraged him, etc., to kill a certain party, and that in attempting to do so, he killed another by mistake, and said testimony of said principal was sufficiently corroborated in every material matter, the conviction is sustained, although there was conflict of testimony, and contradictions and inconsistencies in the testimony of some of the witnesses. . 2. —Same—Jury and Jury Law—Challenge for Cause. Where upon trial of murder as an accomplice, and a conviction of murder in the second degree under the former statute, defendant’s cause for challenge of one of the jurors was overruled, and the record showed that the court did not err in holding the juror to be qualified, there was no reversible error, 3. —Same—Murder in the Second Degree—Charge of Court. Where, upon trial of murder as an accomplice, it was shown by' the evidence that the principal, in attempting to commit the offense, by mistake killed a person other, than the one designed to be killed by the accomplice, and the court in his charge to the jury, instead of using the words of the statute, charged the jury that the accomplice (defendant) to the offense originally intended, should receive the punishment affixed to murder in the second degree, there was no reversible error. 4. —Same—Charge of Court—Mistake. Where defendant was charged as an accomplice to murder, and the indictment alleged that the principal killed another person than the one originally designed to be killed by the accomplice, through mistake, and the court in his charge substantially submitted the allegations in the indictment and the-issue of mistake, and instructed the jury further that if the allegations in the indictment were sustained by the evidence .beyond- a reasonable doubt, to convict the defendant of murder. in the second degree, there was no reversible error, and the contention that the issue of mistake was not sufficiently submitted to the jury, was untenable. 5. —Same—Accomplice—Charge of Court—Corroboration. Where upon trial of an accomplice to murder, wherein the principal was the. chief State’s witness, the court gave the usual correct form on the issue of accomplice testimony, and in addition thereto, instructed the jury that it is not necessary that the corroborative evidence, if any, be sufficient in itself and alone, outside of and independent of the testimony of the accomplice, there was no reversible error. Following Holmes v. State, 70 Texas Crim. Rep., 423, and other cases. 6. -—Same—limiting Testimony—Credibility of Witness—Charge of Court. Where, upon trial of murder as an accomplice, defendant in various ways sought to contradict and impeach the testimony of a certain State’s witness, and introduced the former district- attorney to impeach said witness’ testimony at a ‘former trial, and the court correctly limited said testimony of said district attorney to the question of impeachment of the State’s witness, and practically submitted the charge requested by the defendant, there was no reversible error, said testimony of the district attorney, supporting instead of impeaching the testimony of said State’s witness. ¡Following Brown v. State, 74 Texas Crim. Rep., 356, and other cases. 7.—Same—Requested Charge. Where the requested charge was fully embraced in the court’s main charge, there was no error in the court’s refusal to give the same.
77 Tex. Crim. 221Gray v. State (1915)
The opinion states the case.
77 Tex. Crim. 237Williams v. State (1915)
The opinion states the case.
77 Tex. Crim. 239Myers v. State (1915)
1.—Murder—Change of Venue—Discretion of Court. Where, upon trial of murder, the defendant filed his application for a change of venue on both statutory grounds, and the State filed a contest of the application, when the court heard the evidence adduced thereon, and the testimony was conflicting, but fully sustained the judgment of the court in refusing to change the venue, there was no reversible error, it not being shown that the trial judge abused his discretion. 2.—Same—Jury and Jury Law—Death Penalty. Where, upon trial of murder, and a conviction thereof, assessing the death penalty, the record showed that the examination of one of the jurors disclosed that he would be unwilling to inflict the death penalty under any circumstances, there was no reversible error in excusing him. ' 3.—Same—Jury and Jury Law—Death Penalty—Conscientious Scruples. Where, upon trial of murder, a juror on his voir dire stated that, if it were left to him, there were no eases in which he would inflict the death penalty, although he also stated that there might be cases in which he would agree to the death penalty, there was no error in excusing him. 4:—Same—Jury and Jury Law—Opinion of Juror. Where the record showed on appeal that the juror had heard people talking about the case since he had been summoned on the venire, and while in attendance upon the court on several occasions, there was no error in excusing him. 5.—Same—Jury and Jury Law—Challenge for Cause—Opinion of Juror. Where the juror, upon his examination by State’s counsel, stated that he had a fixed opinion about the case, and that it would take pretty strong evidence to remove it, there was no error in sustaining a challenge for cause by the State, without calling on defendant to act on the challenge. 6.—Same—Challenge for Cause—Jury and Jury Law—English Language. Where the juror appeared to understand the questions propounded to him by the attorneys, and gave intelligent answers in the English language, he was not disqualified on the ground that there were some words in the English language of which he might not understand the meaning. 7. —Same—Jury and Jury Law—Defective Hearing. Where the juror could hear the questions propounded to him, apparently without difficulty, and that he had no opinion as to the guilt or innocence of the defendant, although he had read newspaper reports of the homicide, he was, nevertheless, a qualified juror. 8. —Same—Jury and Jury Law—Opinion. ■ Where the juror stated on his voir dire that he had heard some slight discussions of the case, but that he had no opinion upon it; that if the testimony developed the fact that a witness was in sympathy with the defendant, he would consider that fact in passing on his testimony, and would not give it as much weight as the testimony of a witness who had no interest in the ■case, he was a qualified juror. 9. —Same—Jury and Jury Law—Opinion. Where the juror stated on his voir dire that while he had read newspaper reports of the homicide, that he had never heard the case discussed by anyone, or expressed an opinion, and that while he had a casual impression from what he read in the papers, that this would not influence him in finding a verdict according to the law and the evidence, he was a qualified juror. 10. —Same—Jury and Jury Law—Rule Stated. Where some of the jurors stated on their voir dire that they had read the newspaper reports of the • homicide, hut had no such opinion as would influence their verdict, and who did not serve on the jury, there was. no reversible error, it not being shown, that an objectionable juror was forced upon the defendant. Following Grissom v. State, 8 Texas Crim. App., 386, and other cases. 11. —Same—Rule Stated—Practice on Appeal. The inquiry in the appellate court is, not whether the court may have technically erred in passing upon the qualification of a juror, but, did the action of the court in so doing tend to defeat ,the constitutional right of a fair and impartial jury; if not, there is no reversible error. 12. —Same—Continuance—Practice on Appeal—Mental Condition. The overruling of an application for continuance must be viewed in the light of the evidence had on the trial, and the evidence had on the hearing of the motion for a new trial, and where the alleged absent testimony with reference to the sanity of the defendant, related to a condition of his mind some six years before the commission of the homicide, and it was not shown that the absent witnesses had opportunity to observe defendant’s mental condition in the time intervening, and defendant’s sanity at the time of the homicide was clearly established by the evidence, there was no error in overruling the motion for continuance. 13. —Same—Sufficiency of the Evidence. Where, upon trial of murder, and a conviction assessing the death penalty, the evidence amply supported the verdict of the jury, there was no reversible error. 14. —Same—Attorney and Client. See opinion complimenting the attorneys of the defendant, who were appointed by the court, for their faithful and able -defense of their client.
77 Tex. Crim. 252Ford v. State (1915)
1. —Murder—Sufficiency of the Evidence. Where, upon trial oí murder, tlie evidence sustained the conviction under a proper charge of the court, there was no reversible error. 2. —Same—Charge of Court—Bight of Going Armed—Self-defense. Where, upon trial of murder, 'the court, in his charge, did not limit defendant’s right of self-defense, there was no error in refusing a requested charge to the effect that defendant had the right to arm himself and seek a peaceable settlement with deceased. Following Williford v. State, 38 Texas Crim. Rep., 393. 3. —Same—Charge of Court—Provoking Difficulty. Where, upon trial of murder, the court did not limit defendant’s right of self-defense by a charge on provoking the difficulty, there was no error in refusing a requested charge that defendant had the right of going armed and seek a peaceable settlement with deceased. Following Fox v. State, 71 Texas Crim. Rep., 318, and other cases.
77 Tex. Crim. 253Tulley v. State (1915)
The opinion spates the case.
77 Tex. Crim. 254Williams v. State (1915)
The opinion states the case.
77 Tex. Crim. 255Ford v. State (1915)
The opinion states the case.
77 Tex. Crim. 256Denman v. State (1915)
1. —Soliciting and Procuring—Sexual Intercourse—Accomplice. Where, upon trial of procuring and soliciting for illicit sexual intercourse, the only State’s witness was the female with whom the illicit sexual intercourse was alleged to have been had, which the defendant denied, held that said State’s witness was an accomplice, and defendant could not he convicted on her uncorroborated testimony; the evidence showing that the soliciting and procuring occurred in pursuance of her request. 2. —Same—Accomplice. _ See opinion for discussion of the question of accomplice where the prosecuting witness initiates the crime. Following Bush v. State, 68 Texas Crim. Rep., 299, and other cases.
77 Tex. Crim. 258Mills v. State (1915)
The opinion states the case.
77 Tex. Crim. 261Urben v. State (1915)
The opinion states the case.
77 Tex. Crim. 266Hart v. State (1915)
The opinion states the case.
77 Tex. Crim. 267Park v. State (1915)
The opinion states the case.
77 Tex. Crim. 267Hart v. State (1915)
Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained‘a conviction, there was no reversible error.
77 Tex. Crim. 270Haggart v. State (1915)
1. —Rape—Other Acts of Sexual Intercourse—Limitation. Where, upon trial of rape upon a female under the age of consent, and under the control of the defendant in loco parentis, there was no error in admitting in evidence acts of intimacy and acts of sexual intercourse, even though one of the latter acts of intercourse was barred by limitation. Following Battles v. State, 63 Texas Crim. Rep., 147. Davidson, Judge, dissenting. 2. —Same—Charge of Court—Weight of Evidence. Where, upon trial of rape upon a female under the age of consent, defendant was properly permitted to introduce evidence showing that all the time the said female was an inmate of his home he gave her the tenderest care and treated her as he would his own child, etc., but the court erred in his charge, wherein he instructed the jury the purpose for which said testimony was admitted, as such charge was on the weight of the evidence. 3. —Same—Evidence—Declarations of Defendant. Where, upon trial of rape upon a female under the age of consent, it was error to admit in evidence the declarations of the defendant, which could have had no reference to the prosecutrix. Following Tomlin v. State, 25 Texas Crim. App., 676, and other cases. 4. —Same—Bills of Exception. Where certain bills of exception in the record did not show error, it is unnecessary to discuss them. 5. —Same—Misconduct of Jury—Fair and Impartial Jury—Opinion. Where the defendant attached proper affidavits to his motion for a new trial, showing the misconduct of the jury, and that one or more had expressed an opinion before he was taken on the jury, that defendant was guilty and ought to be hanged, a new- trial should have been granted.
77 Tex. Crim. 274Bolden v. State (1915)
The opinion states the case.
77 Tex. Crim. 281Cline v. State (1915)
1. —Murder—Companion Case. Where, upon trial of murder, the exceptions to the evidence adduced on the trial were ruled upon adversely in a companion ease, except in one instance, they need not be passed upon, except in said instance. 2. —Same — Evidence—Book — Industrial Workers of the World—Conspiracy. Where, upon trial of murder, the State sought to prove a conspiracy to kill the deceased, or that the killing of the deceased grew out of, and was incident thereto, it was reversible error to admit in evidence a certain book which showed that the defendant was a member of the Industrial Workers of the World, but which did not tend to prove a conspiracy, or that the deceased was killed in pursuance of such conspiracy, but would only tend to show that defendant was a, member of said organization; the punishment of the defendant being such thA¡ such evidence was injurious to defendant. 3. —Same—Evidence—Co-conspirators, Declarations of. Where, upon trial of murder, the State’s testimony showed that the defendant was one of the members of a party, or rather of a number of persons who had conspired together for an armed invasion into the Republic of Mexico, and than when defendant was arrested, stated after the killing of deceased, which grew out of such conspiracy, that he had Been captured and forced to go along with said party and had escaped from them as soon as he could, there was ilo error in admitting evidence, m rebuttal thereto, the conduct of the co-conspirators, after defendant was arrested, and to show his presence when part of the offense was committed; however, the court should have submitted a charge on defendant's said exculpatory statement. 4. —Same—Independent Design—Principals—Charge of Court. Where, upon trial of murder, the State attempted to show that the defendant was a member of a certain party to a conspiracy to invade the Republic of Mexico, out of which grew che killing of the deceased, or was incident thereto, the court should have submitted a requested charge that if the jury had a reasonable doubt, under the evidence, that sucn killing was upon an independent impulse of the party or parties who did che killing, and not in pursuance of the original agreement with the defendant, to acquit him; the evidence raising this issue. 5. —Same—Conspiracy—Charge of Court. Where, upon trial ot murder, the indictment alleged that the defendant with others killed the deceased, and the State introduced evidence of a conspiracy, the court should have instructed the jury that unless they found the defendant had entered into a conspiracy to take the life o# the deceased, or to do an unlawful act out of which grew the killing of the deceased, and was incident thereto, etc. they could not convict the defendant.
77 Tex. Crim. 285Abrigo v. State (1915)
The opinion states the case.
77 Tex. Crim. 287Sweat v. State (1915)
The opinion states the case.
77 Tex. Crim. 290St. John v. State (1915)
Aggravated Assault—Insufficiency of the Evidence. Where, upon trial of aggravated assault upon a little girl, charging indecent fondling her person, the evidence did not sustain the conviction (although it was immaterial whether the child consented), the judgment is reversed and the cause remanded. Prendergast, Presiding Judge, dissenting. Citing Scroggins v. State, 51 S. W. Rep., 232.
77 Tex. Crim. 297Fears v. State (1915)
Local Option—Charge of Court—Election by State—Former Conviction. Where, upon trial of a violation of the local option law, the State relied on the testimony of one State’s witness, who testified to three different sales on the same day of which defendant had been before convicted, and had filed his plea of former conviction in the instant case, and the testimony in both eases was exactly the same, and the State had not elected upon which sale the State would rely for conviction in the former case, and the court did not instruct the jury with reference thereto, the same was reversible error. Following Alexander v. State, 53 Texas Crim. Rep., 553, and other cases.
77 Tex. Crim. 298Ex Parte Hopkins (1915)
Murder—Habeas Corpus—Bail. Where, upon appeal from a writ of habeas corpus denying bail, the evidence-justified hail, the same will he granted.
77 Tex. Crim. 299Ex Parte Harvey (1915)
Habeas Corpus—Bail Bond—Custody—Jurisdiction. Where, upon appeal from a habeas corpus proceeding, relator was remanded to the custody of the officers on a writ of extradition, but was allowed bail pending said appeal, and was not in actual custody, this court has no jurisdiction of the appeal. Following Ex parte Walton, 45 Texas Crim. Rep., 74, and other cases.
77 Tex. Crim. 300Gleason v. State (1915)
The opinion states the case.
77 Tex. Crim. 302Ables v. State (1915)
1. —Theft—Sufficiency of the Evidence. Where, upon trial of theft, the evidence' was sufficient to sustain the conviction, there was no reversible error. Davidson, Judge, dissenting. 2. —Same—Absence of Witness—Practice in District Court. Upon trial of theft, where a witness was absent, and did not testify, and his testimony was material, the State had a right to probe this matter, to ascertain the whereabouts of this witness, and why he was not present to testify; the witness being a brother-in-law to defendant. Following Jones v. State, 7 Texas Crim. App., 103, and other cases.
77 Tex. Crim. 312Ex Parte Brown (1915)
1. —Extradition—Affidavit—Belief and Information. Where the affidavit upon which the extradition proceedings were based, when taken as a whole, was not on information and belief alone, but was sworn to positively, the same was sufficient. Davidson, Judge, dissenting. 2. —Same—Evidence—Defendant’s Guilt. Upon an extradition proceeding, there was no error in not permitting the relator to testify that he was not guilty of the offense charged. Following Denning v. State, 50 Texas Crim. Rep., 629.
77 Tex. Crim. 314Burton v. State (1915)
The opinion states the case.
77 Tex. Crim. 319Grimes v. State (1915)
The opinion states the case.
77 Tex. Crim. 344Carrel v. State (1915)
1. —Aggravated Assault—Sufficiency of the Evidence. Where, upon trial of aggravated assault, the evidence showed that defendant had given the temporary custody of his infant child to the prosecuting witness, and that it became a question thereafter whether defendant was entitled to its custody, and the matter was pending in the court, defendant had' no right to< use violence upon the prosecutrix to repossess himself of the child, even though he was legally entitled to its custody. 2. —Same—Evidence—Cross-examination—Custody of Child. Where, upon trial of aggravated assault, the defendant cross-examined prosecutrix fully as to how she came into custody of the child, etc., there was no error in sustaining an objection to the question as to what right she had to such custody. 3. —Same—Accident—Innocent Intention—Charge of Court. Where, upon trial of aggravated assault, the evidence raised the issue that the alleged blow was accidental or unintentional, the court should have submitted the same to the jury as requested.
77 Tex. Crim. 347Jackson v. State (1915)
1.—Occupation—Intoxicating Liquors—Local Option—Indictment. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient. Following Slack v. State, 61 Texas Crim. Rep., 372. 3.—Same—Continuance—Want of Diligence. Where defendant’s application for a continuance showed a want of proper diligence, the same was properly overruled. 3. —Same—Postponement—Practice. Upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, there was no error in not postponing the ease for trial until some cases pending in the County Court in which defendant was charged with making sales of whisky were tried; as they were distinct offenses, and besides, a postponement should not have been granted, even if they had been the same offense. 4. —Same—Evidence—Declaration of Third Party. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the defendant testified that he delivered the whisky to the alleged purchaser, the declarations of a third party of the same fact, although not made in the presence of the defendant, did not constitute reversible error. Following Tinsley v. State, 52 Texas Crim. Rep., 91. 5. —Same—Evidence—Orders of Commissioners’ Court—Contest. Upon trial of pursuing the occupation of selling intoxicating liquors, etc., there was no error in admitting in evidence the orders of the Commissioners Court with reference to the election, although a word was omitted therein, as these matters could not be raised on the trial after the time to contest the election had elapsed. Kirksey v. State, 61 Texas Crim. Rep., 298, 135 S. W. Rep., 124. 6. —Same—Evidence—Occupation. Where the testimony was admissible on the issue of whether or not defendant was engaged in the business of selling intoxicating liquors, etc., as charged in the indictment, there was no error. 7. —Same—Occupation—Business—Vocation—Charge of Court. Where the court defined the occupation of selling intoxicating liquors in local option territory, etc., according to approved precedent, there was no error in refusing requested charges which gave an incorrect definition thereof. Following Fitch v. State, 58 Texas Crim. Rep., 366, and other cases.
77 Tex. Crim. 349Fears v. State (1915)
1. —Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence, although conflicting, sustained the conviction, there was no reversible error. 2. —Same—Motion for Hew Trial—Bill of Exceptions. Where the court’s ruling was correct in overruling the motion for a new trial, a bill of exceptions to the action of the court presents no error. 3. —Same—Other Offenses—Election by State. Where, upon trial of a violation of the local option law, defendant requested a charge withdrawing from the jury the evidence tending to establish three sales of whisky on the same day, for the reason that he was being tried for one crime only, which the court refused because it came .too late, there was no reversible error, although it would have been proper if the court’s attention had been called thereto in time to have required the State’s counsel to elect; besides, the matter inured to defendant’s benefit. 4. —Same—Newly Discovered Evidence. Where the motion for new trial on the ground of newly discovered evidence met none of the requirements of the statute, it -was correctly overruled. Following Gray v. State, 65 Texas Crim. Rep., 204, 144 S. W. Rep., 283.
77 Tex. Crim. 351Ex Parte Innes (1915)
Extradition. — Fugitive from Justice — Case Stated — Involuntary Asylum. Where the record on appeal showed that the relator did not come into this State voluntarily, but that being charged with crime alleged to have been committed in Bexar County, State of Texas, the Governor of Texas issued a requisition on the Governor of Oregon, who honored the same, and relator was in Texas by reason of being brought here on that requisition; that relator, after being fried for the offense charged in Bexar County, was acquitted, and that it then developed that while relator was in jail in said Bexar County, the Governor of Texas had granted a requisition from the Governor of Georgia, and instead of being discharged from custody, relator was immediately arrested on said last requisition; whereupon she sued out a writ of habeas corpus, and the court below refused to release her, but turned her over to the Georgia authorities. Held: that the Governor of this State had authority to grant the requisition from the Governor of Georgia. Davidson, Judge, dissenting. 2. -—Same—Statutes Construed—Federal Constitution—Found in State. The language of our statute is in accord with the provisions of the Federal Constitution, is violative of no provision thereof, and especially grants to the (Sovefnor of Texas the authority to issue the requisition whenever a person charged with crime in another State is found within the borders of the State of Texas, and the Governor of Texas, having acted in conformity with and under the authority of the statutes of this State, which are in accord with the Federal Constitution, there was no error in honoring the requisition from the Governor of Georgia, and relator was a fugitive from justice from said demanding State, Dayidson, Judge, dissenting. 3. ^-Same—Federal Constitution—Federal Statutes—Words and Phrases. . "The Federal Constitution provides that a person charged in any State with treason, felony, or other crimes, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the cause, and the courts can not look alone to the Federal statute enacted under the Federal Constitution, which contains the qualifying words, “to which he has fled,”" and the power to honor a requisition is not limited to the Governor of the State to which such person may voluntarily go. Following Ham v. State, 4 Texas. Crim. App., 645. Davidson, Judge, dissenting.
77 Tex. Crim. 364Ex Parte Innes (1915)
Extradition—Writ of Habeas Corpus—Companion Case. Where the questions of fact and law are the same in the instant case as those in a companion case which were decided adversely to relator, they need not again he considered, and the judgment of the lower court is affirmed. Davidson, Judge, dissenting.
77 Tex. Crim. 365McLeod v. State (1915)
1. —Sunday Law—Moving Picture—Admission Pee. Where, upon trial of a violation of the Sunday Law by permitting a motion picture show for which an admission fee was charged, the evidence sustained the conviction, there was no reversible error. Davidson, Judge, dissenting. 2. —Same—Admission Pee—Contribution Box—Evasion—Subterfuge. Where, upon trial of a violation of the Sunday Law, by permitting a moving picture show to be exhibited for an admission fee, the evidence showed that while defendant did not require an admission fee, he placed a glass jar near the ticket window on the outside before the show was opened, for the purpose of receiving donations from any person who wished to donate upon entering the show, and such donations were made, amounting to over $30, such was an evasion of the law, and the conviction is sustained. Davidson, Judge, dissenting. 3. —Same—Words and Phrases—Admission Pee Charged—Contributions. Where, upon trial of a violation of the Sunday Law by exposing motion pictures for an admission fee, defendant contended that a literal construction should be given to the word “charge,” that is, that a price was demanded before anyone was admitted to the show, held that such contention was untenable, where it was shown that defendant collected contributions by means of a receptacle which he placed where the ticket seller stood on other days of the week, in which he received contributions. Distinguishing Ex parte Jacobson, 55 Texas Crim. Rep., 240. Davidson, Judge, dissenting. 4. —Same—Statutes Construed—Meaning of Words in Penal Code. Under article 10 of the Penal Code, this court must take into consideration the entire provision of said article, and ascertain the intent of the Legislature in the use of the words “admission fees charged,” taking into consideration the context and subject matter, and if the intent can be ascertained, it must govern over the literal import of the words, without regard to grammatical rules. Following Walker v. State, 7 Texas Crim. App., 245, and other cases. Davidson, Judge, dissenting. 5. —Same—Statutes Construed—Legislative Intent. Taking into consideration the entire provision of the Code, with reference to the violation of the Sabbath for opening places of public amusement, which shall be construed to mean theaters, and such other amusements as are exhibited, and for which an admission fee is charged, it is clear that it was the intent of the Legislature to prohibit any such place to be open on Sunday where remuneration was received and accepted by the proprietor for keeping his place open, and giving such public amusement, and the facts in the instant case come within the scope of the law, and the violation thereof. Following Wallis v. State, 78 S. W. Rep., 231, and other cases. Davidson, Judge, dissenting. 6. —Same—Legislative Construction—Judicial Precedent—Moving Pictures. Since this court construed the Sunday Law as prohibiting the operation of moving picture shows on Sunday for an admission fee, the Legislature convened and adjourned, and a bill, authorizing cities to permit moving picture shows to be operated on Sunday, was overwhelmingly defeated, it is clear that it was not the intent of the Legislature to permit such picture shows. Following Ex parte Lingenfelter, 64 Texas Crim. Rep., 50. 7. —Same—Holy Scriptures—Natural Law—State Legislation—Sabbath. The Legislature, in enacting the Sunday Law, but followed the injunction of Holy Scripture, and the law of Nature in making it an offense to violate the Sabbath. Davidson, Judge, dissenting.
77 Tex. Crim. 375Thompson v. State (1915)
Keeping Disorderly House—Sufficiency of the Evidence. Where, upon trial of keeping a house where prostitutes were permitted to resort and reside, and keeping a disorderly house, the same being a place where men and women met by mutual appointment for the purpose of sexual intercourse, the evidence sustained the conviction, there was no reversible error.
77 Tex. Crim. 376Taylor v. State (1915)
1.—Murder—Manslaughter—Principal—Evidence. Where the State sought the conviction on the theory that the defendant was a principal in the commission of the offense, it having been shown that he was present at the time of the homicide, testimony of all the facts and circumstances showing that he acted together with the person committing the offense at the time of its commission, was admissible in evidence to show that he aided by act or encouraged by words or gestures Ms son, the person who did the shooting at the time. 2. —Same—Charge of Court—Principals. Where, upon trial of murder and a conviction of manslaughter, the court’s main charge on principals was defective, it would have presented reversible error under the particular facts of the instant case, had the court not given a special requested charge on this issue, which cured the defect. 3. —Same—Presence of Defendant—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, it was admitted that defendant was present at the time his son did the shooting, but it was contended that he did not 'encourage hy words or gestures the person who did the shooting, and did no act that would constitute him a' principal, the court should have instructed- the jury that the mere presence of defendant would not constitute him a principal, unless he gave such aid, etc., at the time of the commission of the offense. 4. —Same—Evidence—Impeaching Own Witness. Where, upon trial of murder and a conviction of manslaughter, the State called to the witness stand a daughter-in-law of defendant, who was asked, among other things, whether she did not put her hand over her ears to keep from hearing the report of the gun, etc., to which she replied that she did this after the shot was fired, etc., whereupon the State was permitted to show her her former statement to refresh her memory, which was permissible, but the State was not authorized to prove what this witness had testified to on a former occasion, it not being shown that the witness swore to facts injurious to the State’s cause. 5. —Same—Rule Stated—Common. Law—Impeaching Own Witness. At common law, one could not impeach Ms own witness. Our Code has, however, so modified this rule that a party may attack the testimony of his own witness when the facts stated by the witness called by him are injurious to him; but in no other instance can he attack a witness whom he has called, who merely fails to remember, refuses to - testify, or fails to make out the. State’s case. Following Goss v. State, 57 Texas Crim. Rep., 557, and other cases. 6. —Same—Evidence—Case Stated—Former Statement of Witness. Having attempted to refresh the witness’ memory by exhibiting to ner a copy of the statement she made at the coroner’s inquest, and she having denied making such statement, it was error to permit the State to introduce in evidence portions of her said statement made at the coroner’s inquest. Following Dunagain v. State, 38 Texas Crim. Rep., 614, and other cases. 7. —Same—Evidence—Cross-examination—Moral Turpitude. Upon trial of murder, the court should not have admitted in evidence testimony that some thirty years before the trial, defendant had killed a man in Georgia, and at that time was a member of the Jesse James gang. This was entirely too remote in time to affect defendant’s standing as a law-abiding citizen. 8. —Same—Charge of Court—Self-defense—Threats—Principals. Where, upon trial of murder and a conviction of manslaughter, the defendant testified that before his son fired the gun which killed the deceased, the latter drew a pistol, etc., the court should have given in charge the law of self-defense as to said son, both from apparent danger to himself and his father, viewed in the light of communicated threats, and whether defendant was a principal, etc,, and if his said son was justifiable as viewed from his standpoint, defendant would not be guilty. 9.—-Same—Charge of Court—Reasonable Doubt. Where the court’s charge on reasonable doubt might be misleading, but on another trial could not again arise as defendant was acquitted of murder, still language of such doubtful construction should not be used in applying the law of reasonable doubt, as between murder and manslaughter.
77 Tex. Crim. 384Martin v. State (1915)
The opinion states the case.
77 Tex. Crim. 389Nye v. State (1915)
1. —Fornication—Common Law Wife—Sufficiency of the Evidence. Where, upon trial of fornication, the defense was that the woman was defendant’s common law wife, and the facts tended to show a common law marriage between the parties, yet, when considered as a whole, a reasonable conclusion only could be drawn that their apparently assumed relationship of husband and wife was merely for the purpose of covering up and preventing detection in their real illicit relationship, and that the arrangement between them was in substance and actual effect to appear married rather than to be married, the conviction for fornication was sustained. Davidson, Judge, dissenting. 2. —Same—Evidence—Intent—Marriage License. Where, upon trial of fornication, the question of defendant’s intent in the sexual relations between him and the said woman was a material inquiry, the marriage license procured by him by which he was thereafter lawfully married to another woman, were admissible in evidence to show that defendant never intended that the relationship which existed between him and the alleged woman was really and truly that of husband and wife. 3. —Same—Intent—Common Law Marriage. Though the intention of the woman was that they should be husband and wife, her intention could not control. It took the intent of both and each of them to make a common law marriage.
77 Tex. Crim. 395Denman v. State (1915)
Tried below before the Hon. C. C. Wren. Appeal from a conviction of unlawfully soliciting a female to have sexual intercourse with other men; penalty, a fine of $50. The opinion states the case.
77 Tex. Crim. 397Chisom v. State (1915)
The opinion states the case.
77 Tex. Crim. 400Sapp v. State (1915)
1. —Habeas Corpus—Practice on Appeal—Murder. It is the rule of this court not to discuss the evidence in appeals of this character, and the court will adhere to that rule. 2. —Same—Bail—Evident Proof—Exception—Rule Stated. The rule is all prisoners shall he bailable. The exception is, when the proof is evident, that not only the accused is guilty, but that the jury will, if . they properly enforce the law, probably assess capital punishment, and that this conclusion is to be reached by the well guarded and the dispassionate judgment of the court or judge passing upon the question of bail. Following Ex parte Stephenson, 71 Texas Crim. Rep., 380. 3. —Same—Rule Stated—Case Stated. Where appellant’s counsel admitted, and the facts are such that in all probability a jury will assess the death penalty, if on final trial, the guilt of appellant be shown, the only other question remains whether the evidence as a whole was clear and strong enough to lead a well guarded and dispassionate judgment to the conclusion that the accused is the guilty agent. If so, bail was correctly denied. Following Ex parte Russell, 71 Texas Crim. Rep., 377, and other cases. 4. —Same—Case Stated—Practice on Appeal—Denial of Bail. Where appellant was denied hail upon a charge of a capital offense, and appealed to this court, we are not prepared to say that the action of the lower court was without ample warrant, and without comment on the testimony, we deem it our duty to affirm the judgment of the lower court.
77 Tex. Crim. 404Mitchell v. State (1915)
1. —Murder—Manslaughter—Charge o£ Court. Where, upon trial of murder, the issue of murder as well as manslaughter was raised by the evidence, there was no error in submitting a charge "on murder. 2. —Samé—Manslaughter—Charge of Court. Where, upon trial of murder, of which offense defendant was conyictqd, the court’s charge authorized a conviction for a higher grade of offense than manslaughter on grounds unauthorized by law, under the evidence, the same was reversible error. 3. —Same—Charge of Court—Murder—Manslaughter. Where, upon trial of murder, there was nothing in the evidence upon which to base a finding that defendant had no information from which he could reasonably believe that defendant’s wife and deceased had- been guilty of adultery, but the court nevertheless so charged the jury, the same was reversible error, it appearing to the contrary from the evidence, and that defendant was in possession of information that led him to believe, and that he did believe that improper relations existed bétween his .wife and deceased, and that the killing took place.because of such belief. 4. —Same—Case Stated—Adequate Cause—Manslaughter. Where, upon trial of murder,' the evidence showed that defendant "did not slay deceased at the first meeting after hearing of the adulterous relation between him and defendant’s wife, but that he came in contact with deceased several times thereafter,' yet'the evidence also showed that defendant was led to believe at the very time of the homicide, that deceased was endeavoring to get defendant’s wife to renew such relations, this conduct of deceased, in' the light of the information defendant had received prior to that time raised the issue of adequate cause, and the court should have submitted this issue in his charge on manslaughter on" that phase of the case. 5. —Same—Adequate Cause—Adultery—Charge of Court. Adultery with the wife is declared by statute to be adequate cause, and the court should have so instructed the jury, and he erred in refusing to do so at defendant’s request. 6. —Same—Adultery—Consent—Conduct of Spouse—Adequate Cause,. Where, upon trial of murder, it was shown that the wife of the defendant was equally at fault with the deceased in bringing about improper relations between them, which strongly tended to show were adulterous, the court should have made it clear to the jury that even though the wife consented thereto, yet if such conduct was such as to he an insult and outrage against the husband, adequate cause would exist, and this, although he had condoned the first offense, yet at the time of the homicide believed that deceased was then endeavoring to have such improper relations between him and defendant’s wife renewed. Following Jones v. State, 33 Texas Crim. Rep., 492, and other cases. 7.—Same—Husband and Wife—Evidence—Cross-examination. Where, upon trial of murder, the defendant introduced his wife as a witness, and she admitted the adulterous relation between her and the deceased, the State, on cross-examination, was correctly permitted to prove that her statement to the county attorney, immediately after the homicide, was to the effect that deceased had not been guilty of improper conduct, yet it should not have been permitted over the objection of defendant to interrogate her on matters about which she had not been interrogated in her examination-in-chief.
77 Tex. Crim. 410Robertson v. State (1915)
1. —Intoxicating Liquors—Occupation—Local Option—Indictment. Where, upon trial of pursuing the business or occupation of selling intoxicating liquors in local option territory, the indictment followed approved precedent, there was no error in overruling motion to quash. Following Mizell v. State, 59 Texas Crim. Rep., 226. 2. —Same—Requested Charge. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence sustained the conviction, there was no error in refusing to submit a requested charge to acquit the defendant. 3 —Same—Charge of Court—Circumstantial Evidence. Where the .conviction depended upon circumstantial evidence, there was no error in refusing a requested charge that unless the jury found that defendant kept in his possession intoxicating liquors for sale, they would acquit him. 4. —Same—Evidence—Accomplice. The purchaser of liquor is not an accomplice of the seller even though he solicits the sale to be made to him. Following Fox v. State, 53 Texas Crim. Rep., 150, and other cases. 5. —Same—Sale—Charge of Court. Where the elements of the sale were properly defined in the court’s charge, an objection thereto presents no error. 6. —Same—Sufficiency of the Evidence. Where, upon trial of following the occupation of selling intoxicating liquors in local option territory, the evidence, although conflicting, sustained the conviction, there was no reversible error.
77 Tex. Crim. 413Walton v. State (1915)
1. —Rape—Age of Consent—Sufficiency of the Evidence. Where, upon trial of rape upon • a female under the age of consent, the evidence- was sufficient to sustain the conviction under a proper charge of the court, there,was no reversible error. 2. —Same—Continuance—Want o£ Diligence — Impeachment — Irrelevant Testimony. Where defendant’s application for a continuance showed a want of diligence, and that the absent evidence was not material, and of an impeaching character, there was no error in overruling the motion. 3. —Same—Evidence—Impeachment—Want of Predicate—Bill of Exceptions. Where defendant failed to lay a predicate as to statements by the prosecuting witness, there was no error in sustaining an objection to the introduction of a conversation between defendant’s witness and the prosecuting witness to the effect that defendant was not guilty, etc.; besides, defendant accepted the qualification by the court of his bill of exceptions which showed no error. 4. —Same—Evidence—Age of Prosecutrix—Marriage Certificate. Where the age of the prosecutrix, in a trial for rape, was a material issue, there was no error in permitting the State to introduce in evidence the marriage certificate of the parents of prosecutrix. 5. —Same—Evidence—Age of Prosecutrix—Scholastic Census. Upon trial of rape upon a female under the age of consent, where the age Of the prosecutrix was' a material issue, there was no error in permitting the State to introduce in evidence the scholastic census, signed and sworn to by the mother of the prosecutrix upon a certain date therein named, giving the age, date and birth of prosecutrix. 6.—Same—Conspiracy—State’s Witnesses—Charge of Court. Where, upon trial of rape, defendant contended that there was a conspiracy among the State’s witnesses to have him indicted for said offense, there was no error in the court’s failure to single out his testimony and submit a charge thereon; besides there was no proper objection to the charge of the court.
77 Tex. Crim. 417Thompson v. State (1915)
The opinion states the case.
77 Tex. Crim. 426Long v. State (1915)
The opinion states the case.
77 Tex. Crim. 429Wheat v. State (1915)
Carrying Pistol—Statement of Facts—Reversible Error. Where, upon appeal from unlawfully carrying a pistol, it was shown that appellant used all the diligence that the law required of him to obtain a statement of facts, and that he was deprived thereof without any fault on his part, the judgment must be reversed and the cause remanded. Following Haak v. State, 60 Texas Crim. Rep., 366.
77 Tex. Crim. 430Ex Parte Long (1915)
From Titus. Original habeas corpus proceeding asking release from imprisonment for contempt of court in not answering questions as a witness; penalty, a fine of $100 and three days confinement in the county jail. The opinion states the case.
77 Tex. Crim. 432Ex Parte Mode (1915)
From Milam. Original habeas corpus proceeding, asking release from arrest under a charge of violating the pool hall law. The opinion states the case.
77 Tex. Crim. 483Jackson v. State (1915)
1.—Disorderly House—Information—Tenant—Lessee. In the sense the word tenant is used in the information, it is synonymous with lessee, and the court did not err in overruling a motion to quash. 2. —Same—Husband and Wife—Tenant. Where, upon trial of keeping a disorderly house, the defendant contended that she was a married woman living with her husband, and that he, but not she, would be the tenant, but the record showed on appeal that she was the person who made the trade to rent the premises, under authority of the husband, there was no reversible error. Following Curry v. State, 24 S. W. Rep., 516. 3. '—Same—Evidence—Rebuttal—Other Offenses. Where, upon trial of keeping disorderly house, the defendant, to gain sympathy for herself, testified that she was mistreated by the officers when she was arrested as a vagrant, and induced to enter a plea of guilty, there was no error in permitting the State in rebuttal to permit the officers to explain the whole matter. 4.—Same—Motion for NeW Trial—Bill of Exceptions—Assignments of Error. Where the bills of exception were filed after court had adjourned, and the motion for new trial did not specifically point out the errors complained of, there was no reversible error. Assignments of error filed long after the , court had adjourned have no place in the record and will not be considered. Following Sue v. State, 52 Texas Crim. Rep., 122. 5.—Same—Sufficiency of the Evidence. Where, upon trial of keeping a disorderly house, the evidence sustained the conviction under a proper charge of the court, there was no reversible error.
77 Tex. Crim. 485Whitfield v. State (1915)
1.—Theft—Indictment—Felony—Misdemeanor. Where, upon trial of theft, the indictment was so drawn as to meet any phase of the evidence that might be presented with reference to the consent of the owner of the property, or the person in exclusive control and management thereof, there was. no merit in the contention that the different counts taken together charged a felony instead of a misdemeanor. 2.—Same—Transcript—-District Court—County Court. Where the transcript of the indictment from the District to the County Court was in compliance with the law, there was no error on that ground. 3.—Same—Venue—Presumption. It will be presumed on appeal that the venue has been proved, and unless the record shows that proper bills of exception were taken at the proper time to show that the venue was in issue- upon the trial, the matter can not be reviewed on appeal. ' Besides, the record shows that the venue was proved. 4.—Same—Possession—Property Recently Stolen. Where, upon trial of misdemeanor theft, the defendant claimed that he got the alleged stolen property from some .one else, and the court properly submitted the issue of possession of property recently stolen, and defendant’s explanation thereof, there was no reversible error.
77 Tex. Crim. 489Smith v. State (1915)
The opinion states the case.
77 Tex. Crim. 490Southall v. State (1915)
The opinion states the case.
77 Tex. Crim. 493Tyrone v. State (1915)
“In the trial of every case in the District Court it is frequently necessary during the trial for the court to retire the jury- during argument of counsel on the admissibility of testimony; that is a matter which is controlled by law, and when you are forced to retire every few minutes, if that should be the case, you must not become nettled at the attorneys who make the objections, or anyone else, as the law demands it, and you are as much responsible for it as anyone else;…
77 Tex. Crim. 506Tinker v. State (1915)
1. —Arson—Indictment. Where, upon trial of arson, the indictment charged that the defendant on the date alleged in the indictment, and anterior to the presentment of- the same in the county of the prosecution, did then and there unlawfully and maliciously set fire to and burn the house of O. S., there situate, the same was sufficient, under article 1200, Penal Code, et seq. 2. —Same—Evidence—Title—Possession. The title to the property burned, in a prosecution for arson, is never in issue, and it is not essential that a deed to the alleged owner be introduced' in evidence, but oral testimony of the possession and ownership is always admissible. Following Allen v. State, 62 Texas Crim. Rep., 501. 3. —Same—Bill of Exceptions. Where the bill of exceptions was to the admission of testimony that the property belonged to the alleged owner without further pointing out the error, the same was insufficient to be considered on appeal. Following James v. State, 63 Texas Crim. Rep., 75, and other cases. 4. —Same—Evidence—Possession. Upon trial of arson, there was no error in permitting a local insurance agent to testify that the alleged owner of the burned gin insured it. Such testimony was admissible to show possession. Besides, there was other testimony of the same character admitted without objection. 5. —Same—Rule Stated. It is well settled in this State that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to. Following Wagner v. State, 53 Texas Crim. Rep., 306, and other cases. 6. —Same—Evidence—Insurance Policy—Ownership—Possession. Where defendant was not the owner of the burned gin, it was not necessary to introduce the insurance policy to show that the burned house was injured, upon trial of arson, and there was no error in admitting oral testimony that the alleged owner of the gin insured it. 7. —Same—Irrelevant Testimony. Upon trial of arson, there was no error in not permitting the defendant to introduce testimony that a certain brand of whisky came from an important State’s witness. 8. —Same—Property in Controversy—Deeds—Possession. Upon trial of arson, there was no error in not admitting in evidence copies of deeds which defendant claimed showed that the alleged burned property was in controversy, without showing that someone other than the alleged party injured, was in possession, or at least claimed possession. 9. —Same—Evidence—Indictment. An indictment must be tested by itself, as a pleading under the law. It can neither' be supported nor defeated as such by what evidence is introduced on the trial; Following Ritter v. State, 76 Texas Crim. Rep., 594. 10. —Same—Conduct of District Attorney—Bill of Exceptions. Where the bill of exceptions was not verified, and pointed out no error as to the conduct of the district attorney in cross-examining the witness, there was no reversible error. 11. —Same—Sufficiency of the Evidence. Where, upon trial of arson, the evidence, although conflicting, sustained the conviction, there was no reversible error.
77 Tex. Crim. 510Winterman v. State (1915)
The opinion states the case.
77 Tex. Crim. 515Lockhart v. State (1915)
The opinion states the case.
77 Tex. Crim. 516Dieter v. State (1915)
1. —Aggravated Assault—Simple Assault—Verdict. Where, upon trial of aggravated assault, both aggravated assault and simple assault were submitted to the jury, who returned a verdict assessing a fine of $25, the verdict should have specified whether defendant was convicted of aggravated or simple assault. 2. —Same—Severance. Where defendant’s motion for severance was in accordance with the law, upon trial of aggravated assault, the same should have been granted. 3. —Same—Defendant as a Witness—Insulting Conduct to Female Relative—Hearsay. Where defendant was testifying in his own behalf, and was asked why it was that he made the assault, and' would have answered thereto that he was informed by his wife and others that the prosecuting witness had been guilty of rape on defendant’s wife, and that the difficulty occurred at the first meeting, he should have been permitted to answer, and the rule of hearsay does not apply.
77 Tex. Crim. 517Brooks v. State (1915)
The opinion states the case.
77 Tex. Crim. 519Lawson v. State (1915)
The opinion states the case.
77 Tex. Crim. 520Hawkins v. State (1915)
1. —Robbery—Statement of Facts—Questions and Answers. Where the statement of facts is made up by questions and answers, and there is no statement by the judge that this was necessary, and it appears that it was not necessary, the same can not be considered on appeal. 2. —Same—Burden of Proof—Charge of Court. Where, upon trial of robbery, the court charged, among other things, that in all criminal eases, the burden of proof is on the State, the complaint that a requested charge should have been given, which required that the burden is on the State, and never shifts to defendant, was untenable in the absence of a statement of facts. 3. —Same Argument of Counsel—Minimum Punishment. Where, upon trial of robbery with firearms the defendant received the minimum punishment, a complaint to the argument of State’s counsel in which harsh and bitter terms were used, while not reversible error in the instant case, was improper, and prosecuting counsel are reminded to remain within the record in their argument.
77 Tex. Crim. 522Vollintine v. State (1915)
The Statens testimony showed that the defendant entered the barber shop of the deceased and asked whether deceased was in, and when the latter answered that he was, saying, “That’s me,” the defendant drew a pistol from under his overcoat and shot and killed deceased; that deceased was unarmed and was not doing anything except to raise his arm when defendant fired; that defendant had not seen deceased for many years, and seemed not to have known him at the time.
77 Tex. Crim. 526Van Dyke v. State (1915)
The opinion states the case.
77 Tex. Crim. 528Moser v. State (1915)
The opinion states the case.
77 Tex. Crim. 534Sloan v. State (1915)
1.—Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence was sufficient to support the conviction, there was no reversible error. 2.—Same—Charge of Court—Limitation. Where, upon trial of a violation of the local option law, the evidence showed that if a sale was made, it was made within less than two years prior to the return of the indictment (the offense being a misdemeanor), a complaint that the court erred in his charge upon limitation was untenable.
77 Tex. Crim. 535Looper v. State (1915)
Vagrancy—Sufficiency of the Evidence—Visible Means of Support. Where, upon trial of vagrancy, the defendant showed that he owned a home valued at $400, and two vacant lots, and some other property, of which the value was not given, and none of them were shown to produce any revenue, or that defendant had any income therefrom, and the testimony of the State showed that he had no visible means of support, and that he habitually loafed, loitered, and was then and there an idle person, the conviction was sustained.
77 Tex. Crim. 536Robertson v. State (1915)
1. —Local Option—Recognizance—Reinstatement. Where the appeal was dismissed for the want of a sufficient recognizance, but a sufficient recognizance was afterwards filed, the appeal will be reinstated, , and the merits of the same decided. 2. —Same—Statement of Facts—Bill of Exceptions. In the absence of a statement of facts and bill of exceptions, the cause must' be affirmed. 3. —Same—Statement of Facts—Practice on Appeal. Where, upon rehearing in this court, the appellant presented an application that he had been deprived of his statement of facts and bills of exception by the action of the trial judge without fault or neglect on the part of appellant or his counsel, but no affidavit is attached to said application, and no certificate is made thereto by the trial judge, the same can not be considered.
77 Tex. Crim. 539Bagley v. State (1915)
1. —Occupation—Selling Intoxicating Liquors—Local Option—Indictment. Where, upon trial of pursuing the occupation of selling "intoxicating liquors in local option territory, the indictment followed approved precedent, the same was sufficient. 2. —Same—Continuance—Immaterial Testimony. Where, upon appeal from a conviction of selling intoxicating liquors in local option territory, the record showed that the alleged absent testimony was immaterial, there was no error in the court’s overruling the application for a continuance and for new trial on this ground. 3. —Same—Requested Charges—Accomplice. The fact that a person purchases intoxicating liquors from one who sells it in violation of the law, under article 602, Renal Code, shall not constitute such person an accomplice, and there was no error in the court’s not submitting a requested charge on accomplice testimony. 4. —Same—Accomplice—Sheriff. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option! territory, the testimony showed that the sheriff had agreed to pay witness $25 for each bootlegger he might detect, etc., this did not make the sheriff an accomplice. Following Walker v. State, 72 S. W. Rep., 401. 5. —Same—Occupation—Definition. The fact that defendant was a cattle buyer would not prevent him from also pursuing the occupation of selling intoxicating liquors in local option territory. Following Fitch v. State, 58 Texas Crim. Rep., 366; 127 S. W. Rep., 1040.
77 Tex. Crim. 541Fletcher v. State (1915)
The opinion states the case.
77 Tex. Crim. 543Dodd v. State (1915)
1.—Burglary—Sentence—Appeal—Vacation. Sentence must be pronounced during the term of court at -which the judgment is rendered, or if not then done, at a subsequent term of court; but the court can not sentence a defendant in vacation. 2.—Same—Jurisdiction—Notice of Appeal. When the court adjourned, his authority over the case ceased, where notice of appeal had been given to this court, except in cases specially provided by statute.
77 Tex. Crim. 544Dickie v. State (1915)
The opinion states the case.
77 Tex. Crim. 545Munoz v. State (1915)
1. —Murder—Bill of Exceptions—Motion for New Trial. In the absence of a bill of exceptions, a complaint to the introduction of testimony, made in a motion for new trial, can not be considered on appeal. 2. —Same—Charge of Court—Weight of Evidence. Where, in the beginning of the court’s charge, be informed the jury that defendant stands charged by indictment with the offense of the murder of S. G., alleged to have been committed by him, this is not a charge on the weight of the evidence. 3. —Same—Charge of Court—Defendant’s Failure to Testify. Where defendant requested the court to instruct the jury that his failure to testify should not be taken as a circumstance against him, to which the court conformed, there was no error.
77 Tex. Crim. 546Vinson v. State (1915)
1. —Assault to Murder—Assignment of Error—Charge of Court. Where, on the trial of a case, no especial charges were requested, and no exceptions reserved to the charge of the court, and besides no attempt was made to point out any error in the charge of the court in defendant’s motion for new trial, but he only objected thereto in the assignments of error, filed after the court had adjourned, the same can not he considered on appeal. 2. —Same—Rule Stated—Motion for New Trial—Fundamental Error. It is the rule in this State in all the appellate courts now, that all grounds relied on to present error, must he contained in the motion for new trial, filed in the court below, and under the rules adopted by the Supreme Court, which govern all the courts in the State, all errors not directly specified in the motion for new trial shall be waived, unless the error is fundamental 3. —Same—Charge of Court—Objections Thereto. Objections to the charge of the court must be submitted by counsel in writing before the same is read to the jury, and if counsel does not think the charge fully and correctly presents the law, under all the issues raised by' the evidence, it is the duty of counsel, at that time, to direct the attention of the court, in writing, to such error of omission or commission. Following Ross v. State, 75 Texas Crim. Rep., 59. 4. —Same—Assignments of Error—Motion for New Trial. Assignments of error filed in vacation have no place in the transcript in a criminal ease; the motion for a new trial is what this court looks to, and that alone. Following Harvey v. State, 57 Texas Crim. Rep., 7, and other cases. 5. —Same—Sufficiency of the Evidence. Where, upon a conviction of assault to murder, the evidence sustained the conviction, there was no reversible error. 6. —Same—Evidence—Bill of Exceptions. As the witness had made it plain in his testimony that he had never stated who cut the injured party, before testifying on this trial, the fact he had never been called on to swear in regard thereto would be wholly immaterial. Besides, the bill of exceptions was defective. 7.—Same—Evidence—Rebuttal—Recalling Witness. Where defendant complained of the recall of the prosecuting witness to testify that on the night he was cut, he wore a pair of blue pants, etc., and that he had a lantern in his hand, etc., but this was in rebuttal of the testimony of defendant’s witness, there was no error. 9-—Same—Charge of Court—Article 743—Practice on. Appeal. Where, upon trial of assault with intent to murder, defendant, contended that another made the assault, but did not object to the court’s charge at the proper time, and did not present the issue as contended .for by him on the trial of the case, he can not complain of the court’s charge on said issue, in an assignment of error filed in vacation, after the adjournment of court, and there was no error under article 743, Code of Criminal Procedure.
77 Tex. Crim. 550Thompson v. State (1915)
The opinion states the case.
77 Tex. Crim. 554Dixon v. State (1915)
The opinion states the case.
77 Tex. Crim. 555Luttrell v. State (1915)
The opinion states the case.
77 Tex. Crim. 556Robison v. State (1915)
The opinion states the case.
77 Tex. Crim. 563Williams v. State (1915)
The opinion states the case.
77 Tex. Crim. 565Rea v. State (1915)
The opinion states the case.
77 Tex. Crim. 572Colson v. State (1915)
- “On this, the 3rd day of June, 1915, the above entitled and numbered cause was called for trial. The defendant appeared in open court and plead guilty, and his punishment was fixed at a fine of $5, and all costs of the court. On the above named date, the defendant in the above entitled and numbered cause, by his attorney, filed a motion for an appeal to the honorable County Court of Henderson County, Texas.
77 Tex. Crim. 572Golson v. State (1915)Reversed and remanded
D. Owen, Judge. L. E. Golsoh, being convicted in justice court of crime, appealed to thé county court, and from a judgment of dismissal, he again appeals.
77 Tex. Crim. 573Hughitt v. State (1915)
The opinion states the case.
77 Tex. Crim. 576Arnold v. State (1915)
The opinion states the case.
77 Tex. Crim. 580May v. State (1915)
The opinion states the case.
77 Tex. Crim. 583Freeman v. State (1915)
1. —Assault to Murder—Evidence—Declarations of Third Party—Res Gestae. Where the declaration of a third party was made at the very time that ■ the offense was committed, exhorting defendant not to throw rocks and bricks, at the prosecuting witness, the same was res gestae and admissible in evidence. 2. —Same—Sufficiency of the Evidence—Intent to Kill. Where, upon trial of assault with intent to murder, the intent to kill was. sufficiently shown by the evidence, the contention that the same was not sufficient, is untenable, and there was no reversible error.
77 Tex. Crim. 584Reyna v. State (1915)
The opinion states the case.
77 Tex. Crim. 587Taylor v. State (1915)
1. —Carrying Pistol—Sufficiency of the Evidence—Traveler. Where, upon trial of unlawfully carrying a pistol, the defendant contended that he was a traveler when he carried a pistol, but the evidence showed that this was not the pistol he was charged with carrying, but that he did carry a pistol as alleged, and went around to various places, seeing different persons, and that he was not a traveler at that time, or that he carried the nistol to deliver it to some other person, the conviction was sustained. 2. —Same—Charge of Court—Objections—Practice on Appeal. Where defendant made no objection to the charge of the court at the time it was given, and the transcript on appeal failed to show that he excepted to the court’s charge before it was read to the jury, or that he requested charges, the same could not be reviewed on appeal; besides, the requested charges were not the law of the case, and the issues of fact were properly submitted in the court’s charge. Following Younger v. State, 173 S. W Rep., 1039 3. —Same—Charge of Court—Traveler. Where, upon trial of unlawfully carrying a pistol, the defendant contended that he was a traveler at the time, and the court properly submitted this issue to the jury, and refused a special requested charge upon this issue, which was not the law concerning travelers, there was no reversible error. Following Williams v. State, 74 Texas Crim. Rep., 639, and other cases 4. —Same—Continuance—Want of Diligence. Where defendant’s application for continuance showed a want of diligence, and besides, the absent evidence was wholly immaterial to any issue in the case, there was no error in overruling the same. 5. —Same—Charge of Court—Burden of Proof—Reasonable Doubt. Where the court’s charge more than once told the jury that the burden of proof was upon the State, and that defendant’s guilt must be proved beyond a reasonable doubt, it was not susceptible of the construction that it required the defendant to. establish either of his defenses beyond a reasonable doubt. 6. —Same—Misconduct of Jury—Argument of Counsel—Newly Discovered Evidence. Where the amended motion for new trial attacked the verdict on account of misconduct of the jury, improper argument of State’s counsel, and newly discovered evidence, all of which was contested by the State, and that the court heard evidence and overruled the motion, and all the bills of exception concerning these matters were filed long after the adjournment of the County Court, they can not be reviewed on appeal, especially where the alleged statement of facts concerning these matters was not filed during the term of court. Following Graham v. State, 73 Texas Crim. Rep., 28, 163 S. W. Rep., 730, and other cases. 7. —Same—Bills of Exception—Argument of Counsel—Practice on Appeal. There was no error in the court’s refusal to allow defendant a bill of exceptions to the alleged remark of the State’s counsel, when the record showed that no exception was taken thereto at the time, and this matter was not called to the trial judge’s attention until two weeks after the trial in defendant’s amended motion for new trial.
77 Tex. Crim. 591Chapman v. State (1915)
77 Tex. Crim. 595Engman v. State (1915)
1.—local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence, although conflicting, was sufficient to sustain the conviction, there was no reversible error. 2.—Same—Remarks by Judge Where the remarks made by the judge to the jury were in no way prejudicial to the defendant, there' was no reversible error. Following Tyrone v. State, 77 Texas Crim. Rep., 493. 3.—Same—Other Sales—Bill of Exceptions. Where the complaint was that evidence was admitted as to other sales, was not borne out by the record, and the bill of exceptions was defective, there was.no reversible error. 4.—Same—Evidence—Pregnant Pacts. Where, upon trial of a violation of the local option law, the location as to where the whisky was alleged .to have been sold, was in issue, there was no error in admitting evidence as to the furniture in the room for the purpose of showing the identity of the place where the alleged sale occurred.
77 Tex. Crim. 597Miles v. State (1915)
1.—Carrying Pistol—Requested Charge—Defective Pistol. Where, upon trial of unlawfully carrying a pistol, the defendant prepared in writing and presented to the trial judge a requested charge, submitting to the jury in effect, that if they believed from the evidence the pistol was so defective, in the particular claimed, that it could not be fired or discharged, etc., to acquit him, and there was evidence to support this charge, a refusal of same was reversible error. 2.—Same—Rule Stated—Pistol Out of Repair. It is not an offense to carry a pistol, if it is so out of repair that it can not be fired, and this would include the fact that it was so defectively manufactured that it could not be fired at all. Following Cook v. State, 11 Texas Crim. App., 19, and other cases. Distinguishing Steele v. State, 73 Texas Crim. Rep., 352.
77 Tex. Crim. 598Davis v. State (1915)
Carrying Pistol—Intent—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the defendant claimed that the pistol was broken and would not shoot, and that he was carrying the same back to his home, but did not request a charge on the first issue in proper form, but the court submitted the second issue by a requested charge, and no exception having been reserved to the court’s charge, there was no reversible error.
77 Tex. Crim. 600Coleman v. State (1915)
1.—Abandonment—Seduction—Marriage—Continuance. Where defendant’s application for continuance showed that prior to the time that prosecutrix .says defendant led her astray under a promise of marriage, the absent witness would testify that he saw her in the act of carnal intercourse with another, and the record showed that the witness had previously testified to such statement, and had been placed under a bond to attend the court, and it was not shown that defendant was aware of any fact that would put him upon inquiry that the witness had left the State, the continuance and motion for new trial should have been granted. 2. —Same—Evidence—Imputing Crime to Another. Where, upon trial of abandonment after seduction and marriage, defendant attempted to prove that before the alleged seduction, the prosecutrix was found in a compromising position with another whom the infant which prosecutrix bore resembled, which testimony the court refused to admit because said party was related to prosecutrix, and was not sufficiently identified, held, that such testimony was admissible. 3. —Same—Complaint—Indictment—Beginning of Prosecution—Duress— Divorce. The filing of a complaint and arrest thereon charging defendant with seduction was the beginning of the prosecution, and the marriage must have taken place before pleading to the indictment found, to avoid prosecution for seduction, but if the abandonment thereafter showed that defendant did so because he was compelled to marry prosecutrix under duress, he should have been permitted to show this fact, as well as that he immediately brought suit for divorce. 4. —Same—Evidence—Decree of Divorce. Upon trial of abandonment after seduction and marriage, there was no error in excluding the judgment decreeing a divorce to defendant after said marriage, as the State could not be bound thereby in a criminal prosecution against defendant for abandonment. 5. —Same—Remarks by Judge—Practice on Appeal. Where the judgment was reversed and the cause remanded on other grounds, the remarks made by the trial judge during the trial of the case'need not be considered on appeal.
77 Tex. Crim. 604Pope v. State (1915)
The opinion states the case.
77 Tex. Crim. 606Lockett v. State (1915)
1. —Murder—Manslaughter—Jury and Jury Law—Citizen. Where, upon trial of murder and a conviction of manslaughter, defendant complained that the foreman of the grand jury was not a citizen of -the county of the prosecution, but the record showed that he was a citizen of said county, and qualified juror, at the time the indictment was found, there was no error on that ground. 2. —Same—Charge of Court—Peremptory Charge to Acquit. Where, upon a conviction of manslaughter, the evidence sustained the offense, there was no error in the court’s failure to peremptorily instruct the jury to find the defendant not guilty. 3. —Same—Charge of Court—Manslaughter. Where, upon trial of murder and a conviction of manslaughter, the court properly instructed on manslaughter, considering the charge as a whole, there was no reversible error on that ground, the jury awarding the lowest punishment. 4. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence, although conflicting, was sufficient to sustain the conviction, there was no reversible error.
77 Tex. Crim. 608Grant v. State (1915)
The opinion states the case.
77 Tex. Crim. 610Bennett v. State (1915)
1. —Burglary—Change of Venue—Substituting Papers. Where, upon trial of burglary of a private residence, the venue was cnanged, and the papers in the case were lost in transit, there was no error in permitting the State to substitute the said papers, including copy of orders of the court, and of the indictment. 2. —Same—Jurisdiction—Lost Papers;—Substitution. Where the venue was changed, and the papers were lost in transit, and the State was permitted to substitute the lost papers in the District Court, to which the venue had been changed, there was no error, and the contention that the jurisdiction attached to the county from which the venue was changed, is untenable. Following Berg v. State, 64 Texas Crim. Rep., 612. 3. —Same—Substitution of Lost Papers—Notice—Waiver. It is not necessary under the statute and the decisions that notice shall be served upon the accused before such lost papers can be substituted. Besides, •defendant was present when the motions were acted upon by the court, and «objected, whereby he waived notice. 4. —Same—Substituted Indictment. Defendant’s claim that he could not be tried under the substituted copy of the indictment, because this was not the indictment of the grand jury, is wholly untenable.
77 Tex. Crim. 612McDonald v. State (1915)
1. —Seduction—Corroboration—Sufficiency of the Evidence Where, upon trial of seduction, the evidence, although conflicting, was sufficient to sustain the conviction, and amply corroborated, there was. no reversible error. Following Williams v. State, 59 Texas Crim. Rep., 347, and other cases. 2. —Same—Charge of Court—Objections. Where the objections to the charge of the court were too general, and did not point out any specific error, they will not be reviewed on appeal. 3. —Same—Evidence—Bill of Exceptions. Where the court was under the impression that the mother of the prosecutrix was testifying to a conversation she had with defendant regarding his mistreatment of the prosecutrix, but as soon as he discovered that the witness had in mind an illicit proposition to herself by the defendant, he instructed the' jury not to consider the same, there was no reversible error, the jury assessing the lowest punishment. Following Miller v. State, 31 Texas Crim. Rep., 609, and other cases. 4. —Same—Evidence—Letter—Contents. Upon trial of seduction, where the prosecutrix testified that she had received a letter from defendant and had lost the same, there was no error in permitting her to testify to its contents. 5. —Same—Letter—Evidence—Practice in District Court. Where, upon trial of seduction, the prosecutrix claimed to have received a letter from the defendant, and an objection was sustained to her telling the contents, in the absence of notice to the defendant to produce it, there was no, reversible error, although the witness had testified to parts of the letter, when-the objection was made; the court having previously instructed the jury that.' when an objection was sustained to any proper testimony, they should not" consider it, even though some part of it had been, heard by them. 6. —Same—Evidence—Rebuttal—Credibility of Witness. Where a witness for the defendant showed considerable interest in the defense, and denied" that she had given a prescription for cotton root to produce a miscarriage on the prosecutrix, there was no error in permitting the State to introduce the mother of the prosecutrix in rebuttal, to show that said wit-i ness called on the said mother and gave her said prescription, such testimony being properly limited to the credibility of such witness, in the court’s charge. 7. —Same—Rule Stated—Animus of Witness. The law is well established that the opposite side may show animus and, prejudice on the part of the adverse witness towards him and its extent, and that in such examination great latitude is allowed when the object is to impeach the credit of the witness. Such testimony is never regarded as immaterial or collateral. Following Pope v. State, 65 Texas Crim. Rep., 51, and other cases. 8. —Same—Evidence—Rule Stated. Where, upon trial of seduction, defendant objected to the testimony of the mother of the prosecutrix, to the effect that one of defendant’s witnesses had given her a prescription for cotton root to produce a miscarriage on the prosecutrix, but the record showed that the prosecutrix herself had testified the same thing without any objection thereto, there was no reversible error. Following Wagner v. State, 53 Texas Crim. Rep., 306, and other cases 9. —Same—Evidence—Self-serving Declarations. Where appellant complained that the court refused to permit him to show that he had announced his marriage on a certain occasion, but it did not appear that such announcements were directly or indirectly communicated to the prosecutrix, who charged the defendant with seduction, there was no reversible error, as such declarations were self-serving; besides, it appeared from the record that many witnesses testified to said declaration. 10. —Same—Requested Instruction—Charge of Court. Where the court’s main charge embraced all the requested instructions that were proper, and those not so embraced should not have been given, there was no reversible error. 11. —Same—Newly Discovered Evidence—Motion for New Trial—Affidavit—Attorney and Client. Where one of the affidavits attached to the motion for new trial on the ground of newly discovered evidence was sworn to before one of defendant’s attorneys, the same will not be considered on appeal. Following Maples v. State, 60 Texas Crim. Rep., 169. 18.—Same—Newly Discovered Evidence—Rule Stated—Discretion of Court. A motion for new trial on the ground of newly discovered evidence must be closely scrutinized, and is largely confided to the discretion of. the trial court, and is not ground for a reversal, unless such discretion is abused. Following Burns v. State, 12 Texas Crim. App., 269, and other cases. 13.—Same—Newly Discovered Evidence—Rule Stated. It is incumbent on the appellant, when he sets up newly discovered evidence, to satisfy the court. 1. That the evidence .has come to his knowledge since the former trial. 2. That it was not owing to the want of due diligence on Ms part that it was not discovered* and' did not come to his knowledge before the trial. 3. That it is competent and material evidence, arid not merely cumulative, corroborative, or collateral. 4. That it will probably produce a different verdict if a new trial is granted. 5. That it is not simply for the purpose of impeaching a former witness, and if the application is defective in establishing any of these essentials, a new trial should be refused. Following Gray v. State, 65 Texas Crim. Rep., 204, and other cases.
77 Tex. Crim. 617Rice v. State (1915)
The opinion states the case.
77 Tex. Crim. 620Dorris v. State (1915)
1.—Wife Desertion—Recognizance—Practice on Appeal. Where, upon appeal from a conviction of wife desertion, the recognizance was not in compliance with the statute, a motion to dismiss must be sustained. Following May v. State, 49 S. W. Rep., 402. 2.—Same—Statement of Facts—Requested Charges. Where the alleged statement of facts showed that it had not been presented or approved by the trial judge, the same could not be considered on appeal, and a complaint to the court’s failure to give requested instructions can, therefore, not be considered.
77 Tex. Crim. 621Alverez v. State (1915)
1.—Local Option—Examination of Witness—Date of Offense—Limitation. Where, upon trial of a violation of the local option law, the State’s witness had testified that he did not remember the day or the month of the alleged sale, and the defense sought to show that the witness could not fix the date, and it appeared that the witness was an illiterate boy, there was no error in permitting the State in his re-direct examination of the witness to show that the purchase was made some time during this year, to bring the same within the period of limitations. 2.—Same—Newly Discovered Evidence—Motion for New Trial. Where the motion for new trial, alleging newly discovered evidence, was not supported by affidavit, and did not show what the defendant expected to prove, there was no error in overruling the same.
77 Tex. Crim. 621Ex Parte Hengy (1915)
The opinion states the case.
77 Tex. Crim. 623Hand v. State (1915)
On August 15, 1913, Eugene Savoy (the deceased) was employed by the San Antonio Traction Company as controller and motor inspector, a position requiring physical labor, and his hours of work were from 10 o’clock p. m. to 6 o’clock a. m. Savoy remained in this employment from that time until June 26, 1914, leaving the company’s employment on June 25, 1914, on a leave of absence.
77 Tex. Crim. 632Taylor v. State (1915)
1. —Murder—Evidence—Bills of Exception. Where, upon appeal from a conviction of murder, the bill of exceptions failed to show the answer of the witness to a question propounded by the State as to when he saw the parties running, the same can not he reviewed on appeal. 2. —Same—Evidence—Bill of Exceptions. Where, upon trial of murder, the district attorney asked the witness whether the deceased stopped before he was killed after he began running; this was Hot a leading question; besides the bill of exceptions was defective. 3. —Same—Evidence—Leading Question. It was not a leading question to ask the witness whether he saw deceased and defendant all the time until the former was killed. 4. —Same—Evidence—Memory of Witness. Where, upon cross-examination, the witness answered that he did not remember about the question asked him as to whether deceased and defendant were close together, and there was no predicate laid to impeach the witness, this bill of exceptions presents no error. 5. —Same—Evidence—Threats—Individuating Deceased. Where, upon trial of murder, the facts in the case showed that the deceased ' was one of the Nugent family, and was related to the person who was killed by one of the Taylor family, and defendant was one of the latter, there was no error in permitting the State to show that the defendant made a statement in the presence of the witness that one Taylor was “worth the whole damn Nugent family,” as the deceased was clearly included m this declaration. 6. —Same—Evidence—Bill of Exceptions—Motive. Where, upon trial of murder, a witness for the State was asked if one of the Taylor family had not been convicted of murder, which was answered m the affirmative, and the' defendant objected when the witness was further asked for whose murder the conviction was had, and the witness answered, for the killing of deceased’s half-brother; such testimony was admissible to show the relation of the parties and the probable motive defendant had to kill the deceased. 7. —Same—Evidence—Bill of Exceptions—Impeachment of Witness—Examining Trial Testimony. Where, upon trial of murder,- defendant objected to the cross-examination of one of his witnesses, whether the witness did not make certain statements in his examining trial testimony, on the ground that it was not properly signed and sworn to, which objection' was overruled, there was no reversible error, as it was proper to lay a predicate to impeach by the examining trial testimony of said witness, whether reduced to writing or not, as contradictory statements of witnesses may be proved, whether they are signed and sworn to or not, and this, although the State did not introduce such imneaching testimony, no injury having been shown. 8. —Same—Bill of Exceptions. Where the bill of exceptions was too indefinite in pointing out the testimony objected to, and for what purposes such objections were made, the same can not be considered on appeal. 9. —Same—Bill of Exceptions. Where the answer of the witness is not given, nor the bill points out why the objections were made, the same can not be considered on appeal. 10. —Same—Evidence—Tracks. Where, upon trial of murder, the witness -was asked if he looked at the horse tracks found near the -body and could tell whether the horses were walking or running, and the witness answered they were running, there was no error. .11.—Same—Evidence—Instrument Used—Remarks by Court. Where, upon trial of murder, a witness for the State was asked to identify the gun which was used in the killing, which he did, to which defendant objected, and the court remarked that he did not like this kind of procedure, this was not of sufficient importance to be seriously considered on appeal 12. —Same—Evidence—Objections—Like Testimony by Other Witnesses. Where, upon trial of murder, defendant objected to the manner of examination of the wife of the deceased as to her feelings toward defendant and his family, and the witness answered she did not like one of defendant’s family because he had killed her son, this was not reversible error, as the fact had already -been shown by other testimony, without objection. 13. —Same—Evidence—Mot Material. Where a State’s witness stated that her former husband was a brother of the deceased, who had been killed by one of defendant’s family, this, under the facts of this case, was not reversible error. 14. —Same—Argument of Counsel. Where -the county attorney’s argument was based upon the evidence# there was no error. 15. —Same—Argument of Counsel. Where, upon trial of murder, the district attorney, in his argument,/Stated that the defendant had a gun m a certain place, and that this appeared from the evidence, as well as that on the examining trial, to which the defendant objected, and also with reference to the State’s counsel’s argument that defendant bought cartridges, of which there was no evidence, but no charge was requested to withdraw the same, this did not constitute reversible error. Following Little v. State, recently decided. 16. —Same—Evidence—Bill of Exceptions—Impeaching Testimony. Where defendant objected to the attempt of the State to impeach one of defendant’s witnesses by the testimony of a stenographer who had taken the testimony in the examining trial, because the same had not been properly verified, etc., which objections were overruled, there was no error; besides, the bill of exceptions failed to show what testimony was detailed by said stenographer, either from his notes, or without them. 17. —Same—Indeterminate Sentence Law—Reforming. Sentence. Where the lower court failed to follow the indeterminate sentence law, the proper order will be entered here, so reforming and correcting the sentence.
77 Tex. Crim. 642Ex Parte Neyland (1915)
Habeas Corpus—Bail—Ability to Give Bail. Where, upon habeas corpus proceedings, the relator " simply gave notice of appeal, and there was no evidence in the record showing that, he made an attempt to give the bond, the judgment of the lower court must be affirmed, if it should be made to appear before the trial judge that bail should be reduced, he. will no doubt reduce the amount of bail, if advisable.
77 Tex. Crim. 643Acosta and Rosas v. State (1915)
The opinion states the case.
77 Tex. Crim. 644Ornelas and Munoz v. State (1915)
Burglary—Misconduct of Jury—Affidavit—Practice on Appeal. Where, upon trial of burglary, the defendant claimed, after conviction in his motion for new trial, the misconduct of the jury in alluding to one of the defendants’ failure to testify, but the motion was not sworn to by any person, and the affidavit as to this matter was not attached to the motion, but bore a separate and distinct file mark, and it was not shown that this affidavit had been introduced in evidence, and may not have been called to the attention of the trial judge, there was no reversible'error. Davidson, Judge, dissenting.
77 Tex. Crim. 646Galvan v. State (1915)
The opinion states the case.
77 Tex. Crim. 649McAninch v. State (1915)
1. —Theft of Cattle—Ownership—Husband and Wife. Where the indictment contained two counts, one charging the cow to be the property of the wife, and the other charging the cow to be the property of the husband, and both counts were submitted, and a want of consent of both was shown by the evidence, there was no merit in the contention that the court charged erroneously that the alleged property was that of the husband. 2. —Same—Charge of Court—Alibi. Where, upon trial of theft of cattle, the court submitted a proper charge on alibi, there was no error on that ground. 3. —Same—Charge of Court—Principal—Purchase. Where, upon trial of theft cf cattle, the evidence for the State showed that defendant and another acted together, and that they were seen driving the alleged cow, but the defendant claimed that he bought the cow, and the court properly charged the jury if the defendant received the alleged animal after it was stolen, to acquit the defendant, directly applying the law to the facts, there was no reversible error. 4. —Same—Charge of Court—Principal—Original Taking. Where, upon trial of theft of cattle, the defendant denied the original taking, but the court submitted the law on principal, and also defendant’s defense, and required the jury to find that the defendant must have participated in the original taking before they could find him guilty, the same was sufficient, 5. —Same—Sufficiency of the Evidence—Theft—Receiving Stolen Property. Where, upon trial of theft of cattle, the defendant claimed that he purchased the animal in question, and the court submitted this defense, as well as the law of principals, and the evidence was sufficient to sustain the conviction, there was no reversible error.
77 Tex. Crim. 651Grubbs v. State (1915)
1. —Assault to Rape—Sufficiency of the Evidence. Where, upon trial of assault with intent to commit rape, the evidence, although conflicting, sustained the conviction, there was no reversible error. 2. —Same—Argument of Counsel. Where the motion for new trial objected to the argument of State’s counsel, but the same was not sworn to, and it was not verified m the record that the district attorney used the language objected to, the matter could not be reviewed on appeal.
77 Tex. Crim. 653Backus v. State (1915)
1-—Forgery—Passing Forged Instrument—Sufficiency of the Evidence. Where, upon trial of having a forged instrument in possession, with intention to pass it, the evidence sustained the conviction, there was no reversible error. 2. —Same—Bills of Exception. Where the bills of exception were either not approved, or presented no error to be considered, there was no reversible error. 3. —Same—Suspension of Sentence—Evidence. Where defendant pleaded suspension of sentence, and the record showed that he had been repeatedly arrested for various misdemeanors, and once for a felony, he could not complain, even if the trial court had overruled his objection. Following Williamson v. State, 74 Texas Crim. Rep., 289.
77 Tex. Crim. 654Edwards v. State (1915)
The opinion states the case.
77 Tex. Crim. 657Wilburton v. State (1915)
1. —Forgery—Sentence—Statement of Facts. As no appeal would lie until sentence was pronounced, appellant had ninety days after sentence at a succeeding term of court was entered in which to prepare and file a statement of facts, and as the same was filed within time, the motion to strike out is overruled. 2. —Same—Misconduct of Jury—Opinion of Juror. Where the expression of the juror was but an opinion from the testimony adduced on the trial, this was not giving additional testimony in the jury room, and there was no error in overruling a - motion for new trial on that ground. 3. —Same—Sufficiency of the Evidence—Conflict of Testimony. Where, u,.on trial of forgery, the evidence, although conflicting, was sufficient to sustain the conviction, there was no reversible error.
77 Tex. Crim. 659Luna v. State (1915)
1. —Misdemeanor Theft—Statement of Facts—Bills of Exception. Where the alleged bills of exception and statement of facts were filed after the adjournment of the County Court, and without an order therefor, they can not be considered on. appeal. 2. —Same—Misconduct of Jury—Verdict by Lot. Where it was not shown that the jury, before they added up and divided the number of months, bound themselves to stand by this quotient, there was no error in overruling a motion for new trial on that ground.
77 Tex. Crim. 660Fondren v. State (1915)
1. —Gaming—Venue—Presumption. Under article 791, Code of Criminal Procedure, as amended, it is provided that this" court on appeal shall presume that the venue was proved in the court below unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the trial judge, and where the only bill reserved related to the court’s failure to give defendant’s special charge on this matter, the same is not sufficient to review the question; besides, the jury was authorized to find that the venue was. proven. Following Barker v. State, 47 S. W. Rep., 980. 2. —Same—Incompetency of Witness—Co-defendant. Where defendant called a co-defendant as a witness, he will not be heard to complain that the State offered proof showing that he was an incompetent witness; besides, the court erroneously overruled the objection of the State, and permitted the witness to testify at his instance. So—Same—Competent Witness—Acquittal—Co-defendant. While it was competent for the State to seek to disqualify a defendant’s witness by showing that he /was also indicted for the same offense, yet there-was no error in permitting said witness to testify for the defendant, as he had paid his fine, although the "court permitted him to do so for a wrong reason, and defendant could not complain. 4. —Same—Offense of Gaming Defined—Private Residence. The statute now provides, and has so provided for several years, that card playing in any place other than a private residence, occupied by a family, is an offense, and where it was not contended that defendant was a married man, and that his family resided in the room in question, there was no error in overruling his motion for absent testimony to show that he played in a certain room in a boarding house, at a game of cards, if' he played at all.