79 Tex. Crim.

Volume 79 — Texas Criminal Reports

157 opinions

79 Tex. Crim. 1Hiles v. State (1916)
1. — Manslaughter—Sufficiency of the Evidence. Where, upon trial of murder, and a conviction of manslaughter, the evidence sustained the conviction, there was no reversible error. 3. — Same—Evidence—Precedent—Former Appeal. Where, upon appeal from a conviction of manslaughter, the questions raised on the admission of evidence were decided adversely to defendant on a former appeal, it is not necessary to again discuss them, and there is no reversible error. 3. — Same—Evidence—Clothes of Deceased. Where, upon trial of murder and a conviction of manslaughter, it became necessary for the State to show where the wounds took effect, there was no error in admitting in evidence the clothes of deceased.
79 Tex. Crim. 2Davis v. State (1916)
The opinion states the case.
79 Tex. Crim. 4Townser v. State (1916)
1. —Forgery—Indictment—Precedent. Where, upon trial of forgery, the indictment followed approved precedent, the same is sufficient. 2. —Same—Indictment—Order for Goods — Pecuniary Obligation. Where the indictment alleged that the forged instrument was an order for goods, it was not necessary to allege that this instrument would have created, diminished, discharged or defeated any pecuniary obligation, etc. Following Davis v. State, 70 Texas Crim. Rep., 253, and other cases. 3. —Same—Indictment—Order for Goods. Where the indictment alleged the forgery, of an order for goods ana was neither vague nor uncertain, especially when taken in connection with the explanatory averments, and showed clearly that the order to furnish the goods called for was to the person alleged in the indictment, who was a salesman of a mercantile company, it was sufficient, and it was not necessary to allege that said salesman himself had goods for sale or that he was empowered to furnish said goods from the stock of said company, or that lie accepted the order. Following Rubio v. State, 50 Texas Crim. Rep., 177, and other eases. 4. —Same—Indictment—Partnership—Corporation. Where the indictment for forgery alleged that an order for goods was to the salesman of a certain mercantile company, it was not necessary to allege that said company was a firm, partnership or corporation; besides it was not their names which were alleged to be forged. Following Lamb-Campbell v. State, 72 Texas Crim. Rep., 628, and other cases. 5. —Same—Delinquent Child — Juvenile Court — Female—Statutes Construed. The law makes no provision where an indictment has been found against a female for felony to dismiss such indictment and try the case in the Juvenile Court against a delinquent child, and even in the case of a male under 17 years of age who is prosecuted for felony, it is not made compulsory that the judge dismiss such felony charge and have the party proceeded against under the Juvenile Act. Following McCallen v. State, 76 Texas Crim. Rep., 353, 174 S. W. Rep., 611, and other eases. 6. — Same—Sufficiency of the Evidence — Charge of Court. Where, upon trial of forgery, the evidence was sufficient under a proper charge of the court to sustain the conviction, there was no error in refusing a peremptory charge to acquit, even if the same had been presented in proper time.
79 Tex. Crim. 7Wilson v. State (1916)
1. — Burglary—Circumstantial Evidence — Charge of Court. Where, upon trial of burglary in the night-time by force, the defendant was identified by positive evidence as the burglar, there was no error in the court’s failure fo charge on circumstantial evidence. S. — Same—Consent. Where, upon triai of burglary in the night-time by force, the indictment alleged that the entry was made with the intent to commit theft, and did not contain a count charging theft, it was not necessary to prove the want of consent of the owner who was absent at the time, the defendant denying that he was the person who burglarized the house; in such case it was neither necessary to allege nor to prove that the entry was made without the consent of the owner of the house. Following Buchanan v. State, 24 Texas Crim. App., 195, and other cases. [Rehearing denied February 15, 1916. — Reporter.]
79 Tex. Crim. 9Miller v. State (1915)
1. — Rape—Indictment—Precedent. Where, upon trial of rape of a girl under the age of consent, the indictment followed approved precedent, there was no error in overruling the motion to quash. 3. — Same—Sufficiency of the Evidence — Practice on Appeal. Where, upon trial of rape upon a female under the age of consent, the evidence, although conflicting, supported the conviction under a proper charge of the court, there was no reversible error. 3. —Same—Bills of Exception— Qualifications by Court — Rule Stated. It is not only proper, but necessary in a great many instances, for the trial judge to explain and qualify bills of exception so that this court in reviewing the question can more readily comprehend the point, to pass thereon, and where no material injustice had been done the defendant, there was no reversible error. 4. —Same—Continuance—Want of Diligence. Where the application for continuance showed an utter want of diligence to procure the attendance of the alleged absent witnesses, and the bill of exceptions so stated as the court qualified the same, there was no error in overruling the same. Following Stacey v. State, 177 S. W. Rep., 115. 5. —Same—Bill of Exceptions — Evidence—Age of Prosecutrix — Marriage. Where the bill of exceptions did not show what the witnesses would have testified, the same was fatally defective, but even if prosecutrix would have stated that she told defendant she was over age at the time of the alleged rape it would have been wholly immaterial, especially where the defendant got the lowest punishment. Following Martin v. State, 73 Texas Crim. Rep., 546, and other cases. And so would have been the fact that she was previously married. Following Smith v. State, 74 S. W. Rep., 557. 6. —Same—Character of Prosecutrix — Specific Acts of Intercourse. Where, upon trial of rape upon a female under the age of consent, the trial court ruled that specific acts of intercourse with other men on the part of prosecutrix were not admissible in evidence, but subsequently thereto reversed his ruling and held that defendant could prove such specific acts of prosecutrix with other parties to show her general reputation as to chastity and veracity, and that the prosecutrix could be asked and required to answer such questions thereon, and no exception was taken thereto and no witness was offered to prove such acts, and no request made to retire the jury while this point was being discussed by court and counsel, there was no reversible error. Harper, Judge, dissenting. 7. —Same—Evidence—Cross-examination—Immaterial Testimony. Where, upon trial of rape upon a female under the age of consent, the prosecutrix on cross-examination by defendant testified that she had told defendant that she had married a certain party a year or so before the alleged offense was committed, and she had testified on her examination in chief that she did not so tell him until after the act of intercourse, and she had named the residence and names of witnesses who were present at such marriage, and witnesses of such name were subpoenaed by defendant and produced before her while she was being cross-examined, and she denied positively that either of them were the respective persons she had named, and said alleged witnesses denied that they were present at this marriage ceremony or had any knowledge on the subject, and the court thereupon instructed the jury not to consider this testimony because it was immaterial, there was no reversible error. Following Williams v. State, 24 Texas Crim. App., 637, and other cases. Harper, Judge, dissenting. 8. —Same1—Evidence—Impeaching Own Witness — Grand Jury Testimony. Where, upon trial of rape upon a female under the age of consent, the parents of prosecutrix' were hostile to the State, and testified in favor of the defendant when the State placed them upon the withess stand, there was no error in permitting the district attorney to ask them leading questions, show them their own testimony before the grand jury, which was against the defendant and in behalf of the State, and therefrom ask them, respectively, if they did not so testify, some of which questions they denied and others of which they admitted, the court properly limiting such testimony. Following Mischer v. State, 69 Texas Crim. Rep., 223. Harper, Judge, dissenting. 9. —Same—Argument of Counsel — Other Acts of Sexual Intercourse. Where, upon trial of rape upon a female under the age of consent, there was testimony introduced which by inference at least tended to show more than one act of sexual intercourse, and the district attorney in his argument alluded thereto, there was no reversible error, although the court had erroneously refused to permit the State to prove directly more than one act of sexual intercourse. Following Battels v. State, 63 Texas Crim. Rep., 147. Harper, Judge, dissenting. 10. —Same—Misconduct of Jury — Withdrawal of Testimony — Argument of Counsel'. Where the testimony of three of the jurors was amply sufficient to justify the trial judge to conclude that the jury did not go out of the record and discuss facts and matters not in the record; that they did not consider nor discuss any of the excluded evidence about the defendant committing other similar offenses; that they did not consider nor discuss what the district attorney said in his argument about other offenses and that it did not influence them, and that besides that if the jury mentioned and considered any of these outside matters it was after, and not before, they had all agreed on defendant’s guilt, and, besides, defendant refused to examine the other jurors upon the question of misconduct of the jury, although invited to do so by the court, there was no reversible error. Following Lamb v. State, 169 S. W. Rep., 1158. Harper, Judge, dissenting. Í1. — Same—Discretion of Trial Judge — Rule Stated — -Harmless Error. District judges are sworn officers of the law and have the opportunity on motion for new trial as well as on.the trial itself to hear all the witnesses, observe their manner of testifying, and the conduct of direct and cross-examination of the witnesses by the attorneys, etc., and to observe the whole conduct of the trial, as well as to hear the jurors testify on the motion for new trial as to misconduct of the jury, and where, as in the instant ease, the trial judge did not abúse his discretion, but corrected errors when he committed them in such a way as to render them harmless, there was no reversible error. Following Martin v. State, 73 Texas Crim. Rep., 546. Harper, Judge, dissenting. 12. —Same—Failure to Examine Witnesses — Rule Stated — Presumption. If a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable, and where the defendant alleged the misconduct of the jury in considering extraneous matters when deliberating upon their verdict, and only introduced three of the jurors whose testimony did not sustain his contention and declined to introduce the other jurors as witnesses, although they were in attendance, there was no reversible error in overruling his motion for new trial. Following Sweeney v. State, 65 Texas Crim. Rep., 593. Harper, Judge, dissenting. 13. —Same—Evidence—Other Offenses — Impeaching Witness. Upon trial of rape upon a female under the age of consent, the State had the right to prove by defendant himself on cross-examination, in order to impeach him, that he had been arrested under a complaint charging him with the seduction of another female, and that in order to prevent a conviction therefor he had married the seduced girl so as to make her his wife and thereby prevent her from testifying against him; besides such testimony was admissible to show defendant’s system of crime in these sexual offenses with young girls. Following Chance v. State, 63 Texas Crim. Rep., 603, and other cases, and while the details of defendant’s connection with such similar offenses was inadmissible, yet no injury resulting therefrom, and the testimony being immediately withdrawn, there was no reversible error. Following Miller v. State, 31 Texas Crim. Rep., 609, and other cases. Harper, Judge, dissenting. 14. —Same—Rule Stated — Withdrawing Testimony Illegally Admitted. While there is contrariety in the decisions of this -court on the subject of the withdrawal of the testimony improperly admitted, yet the true rule is that if the admitted testimony is of such damaging character as to suggest the impossibility of withdrawing the impression produced upon the minds of the jury and thus curing the error, it will be cause for reversal; otherwise such testimony can he withdrawn and the error thereby cured, and where, as in the instant case, the admission of such testimony was not of that character the same could be withdrawn, and there was no reversible error. Following Hatcher v. State, 43 Texas Crim. Rep., 237, and other cases. Harper, Judge, dissenting. 15. —Same—Argument of Counsel — Rule Stated — Practice in District Court. When an objectionable statement is made in the argument of State’s counsel which is not authorized by the evidence or a deduction therefrom, mere objecting thereto will not present error as the defendant must also request a charge requiring the jury to disregard it, and where, as in the instant case, this was not done, there was no reversible error. Following Mooney v. State, 76 Texas Crim. Rep., 176 S. W. Rep., 52. 16. —Same—Case Stated — Argument of Counsel. While this court emphatically condemns the argument of the district attorney in the instant case, still the record demonstrates that the jury did not consider it and 'it resulted in no injury to the defendant, and, therefore, it presents no reversible error. Harper, Judge, dissenting.
79 Tex. Crim. 44Spooner v. State (1916)
Sunday Law — Picture Show — Sufficiency of the Evidence — Subterfuge. Where, upon trial of violating the law in operating a picture show on Sunday, the evidence showed that defendant took in free contributions, ostensibly for the benefit of the sanitarium and took from said amount his expenses, etc., turning the balance over to the inmates of the said sanitarium, he was guilty of violating the law. Following McLeod v. State, 77 Texas Crim. Rep., 365, 180 S. W. Rep., 117.
79 Tex. Crim. 45Morgan v. State (1916)
1. —Wife Desertion — Bill of Exceptions — Want of Approval. Where, the bill of exceptions was not approved by the judge or presented to him, the same can not be considered on appeal. 2. —Same—Statement of Facts — Want of Approval. Where the alleged statement of facts was not filed in the County Court within twenty days and was not approved by the judge, the same can not be considered on appeal, and their being nothing to 'review the case must be affirmed. [Behearing denied February 9, 1916. — Beporter.]
79 Tex. Crim. 46Gilliard v. State (1916)
The opinion states the case.
79 Tex. Crim. 48Mansell v. State (1916)
1. —Murder—Evidence—Opinion of Witness. Where, upon trial of murder and a conviction of manslaughter, the defendant desired to introduce in evidence the expression of his wife, to the effect that it was nothing more than she expected, after hearing of the difficulty, there was no error in ruling out this testimony, as it did not throw any light on the transaction. 2. —Same—Evidence—Cross-examination. Where, upon trial of murder and a conviction of manslaughter, the defendant in cross-examination of the wife of the deceased showed by her testimony that she ran a hotel after her husband’s death, for the purpose of leaving the impression upon the jury that her character was not above reproach, there was no error in permitting the State to show that the deceased had left the witness no property and that after his death she ran this hotel to make a living. 3. —Same—Evidence—Declarations and Acts ■ by Defendant. Upon trial of murder, there was no error in permitting the officer who arrested defendant to testify that at defendant’s instance he searched him and found no knife or weapon of any character on him; this being contemporaneous with the arrest. 4. —Same—Evidence—Rebuttal—City Ordinance — Hack Drivers. Where the homicide grew out of ill-feeling caused by the arrest of the deceased at the instance of- defendant, both being hack drivers carrying passengers from the depot, and defendant introduced in evidence facts to show that deceased in crossing the line at the depot to secure baggage had violated the city ordinance and that this was the reason for defendant’s action in reporting the matter to the officer, there was no error in permitting the State to show that deceased had in fact not violated this ordinance. 5. —Same—Evidence—Dying Declarations. Where defendant introduced witnesses who testified that deceased refused to make a statement or dying declaration-, there was no error in permitting the State to show that the deceased did' not refuse, hut said at the time he felt too weak to make a statement to the county attorney, and afterwards did make the statement that he -tried to get away, a proper predicate having been first laid; to counteract the impression that deceased recognized he -was in the wrong and for this reason refused to make a statement about the difficulty. 6. —Same—Evidence—Character and Condition of Deceased. Where defendant contended that he killed deceased in self-defense and introduced testimony as to the ability of the deceased to inflict death or serious bodily injury, there was no error in permitting the State to show that the defendant knew the condition -of deceased before and at the time of the difficulty,- and that the deceased suffered from rheumatism since he was a child, and this permanently impaired his strength and the use of his limbs. 7. —Same—Evidence—Clothing of Deceased. Unless it can be shown' that the clothing of deceased is virtually in the same condition at the time of its introduction in evidence as it was at the time of the difficulty, it should not be introduced in evidence; however, as the court sustained an objection thereto, there was no reversible error. 8. —Same—Evidence—Acts of Defendant. The fact that the defendant; four or five days after the homicide, when the body of deceased was being shipped for burial, was at the depot talking and laughing to his relatives a few feet from the corpse, while apparently heartless in the presence of the relatives of the deceased, should not have been admitted in evidence. 9. —Same—Continuance—Materiality of Testimony- — Diligence. Where, upon trial of murder and a conviction of manslaughter, defendant filed an application for a continuance which on its face showed sufficient diligence to procure the absent witness and that his testimony was material on a contested issue in the case, it was reversible error to overrule the same and not to grant a motion for new trial; although defendant and his son testified to the same facts. 10. —Same—Adequate Cause — Charge of Court — Aggravated Assault. Where, upon trial of murder and a conviction of manslaughter, the defendant requested a charge to find him guilty of aggravated assault even if he had a specific intent to kill, the same was correctly refused.
79 Tex. Crim. 54Ex Parte Castorena (1916)
1. — Habeas Corpus — Notice of Appeal. Where the appeal was dismissed because the record did not show that notice of appeal had been given, but it was afterwards certified that such notice of appeal had been given, the appeal is reinstated. 3. — Same—Accomplice—Reduction of Bail. Where appellant contended that the only testimony against him was by a confessed accomplice, and that therefore appellant should be discharged or his bail reduced, but the record showed that the crime was one of express malice, and the bail was fixed at one thousand dollars, the judgment will be affirmed.
79 Tex. Crim. 55Lanier v. State (1916)
1. — Burglary—Continuance—Bill of Exceptions. In the absence of a bill of exceptions to the overruling of an application for a continuance, and no sufficient diligence appeared, there was no error in overruling the same, 8. — Same—Recent Possession — Explanation—Rule Stated. Where a burglary is shown and the defendant is found in possession shortly afterwards of some of the stolen property and gave an explanation which exonerates him, the State must show the statement to be false in order to obtain a conviction, and where there was a conflict of testimony as to such statement the question is one for the jury, and there is no reversible error. 3. —Same—Evidence—Witness—Insanity. Where, upon trial of burglary, there was nothing in the record except the general statement that at one time the State’s witness had been convicted of lunacy and nothing appeared that he was not' in proper mental condition to testify, this was no cause for reversal. 4. —Same—Motion, for New Trial — Affidavit—Newly Discovered Testimony. Where there was not a sufficient showing that the newly discovered evidence was material and the affidavit to the motion for new trial was on information and belief and the alleged testimony in any event was but impeaching testimony, and but hearsay, there was no error in overruling the motion. 5. — Same—Practice—Motion for New Trial. Where the record showed that the trial court was still in session and would not adjourn for some time, an additional motion for new trial couid have been filed and additional affidavits secured if the motion had merit; however, this was not done, and as the record was presented there was no error. [Behearing denied February 9. 1916. — Beporter.]
79 Tex. Crim. 59Furnace v. State (1916)
The opinion states the case.
79 Tex. Crim. 67Ex Parte Goodman (1916)
From Hill County. Original habeas corpus proceedings asking discharge from custody based on affidavit made in this State to have relator extradited.
79 Tex. Crim. 68Atkison v. State (1916)
” 1. — Murder—Manslaughter—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, under a proper charge of the court, there was no reversible error. 8. — Same—Leading Questions — Unwilling Witness. - Where the State’s witness was decidedly adverse to the State, there was no error in permitting State’s counsel to ask him leading questions. Following Carter v. State, 59 Texas Crim. Rep., 73. 3. —Same—Impression of Witness. Upon trial of murder, there was no error in refusing to permit defendant’s counsel to ask the witness and. have him answer as to the impression which was made upon his mind by the deceased at the time he saw him with a gun, and that he believed that deceased intended to go and shoot the defendant. 4. —Same—Charge of Court — Self-defense—Provoking Difficulty. Where, upon trial of murder, the court submitted an admirable charge upon murder, manslaughter, self-defense and provoking the difficulty, all of which were raised by the evidence, there was no reversible error. Following Woodward v. State, 54 Texas Crim. Rep., 86, and other cases. 5. —Same—Charge of Court — Manslaughter—Theory of Defense. Where, upon a trial of murder and a conviction of manslaughter, the defendant objected to the court’s charge because it did not also submit a charge on manslaughter, on the theory that deceased’s attack of him with a knife produced-that degree of passion to render him incapable of cool reflection, but the record showed that defendant asked no special charge submitting manslaughter under any such theory, and the court’s main charge on manslaughter was applicable to the facts, there was no reversible error; the defendant having been convicted of manslaughter. 6. —Same—Charge of Court — Self-defense. Where defendants’ requested charge on self-defense was embraced in the court’s main charge, there was no error in refusing same. Neither did the court err in refusing a requested charge about defendant’s right to arm himself with a pistol, as the evidence did not properly raise this issue. 7. —Same—Provoking Difficulty — Charge of Court — Motion for Behearing. Where appellant in his motion for rehearing contended that this court erred in holding that the lower court was justified in charging on provoking the difficulty, but the evidence in the record clearly raised this issue, there was no error in overruling the motion for rehearing. See opinion for facts set out which raised the question of provoking the difficulty, and that it was the duty of the court to charge on that issue; the court in the meantime submitting the converse of the proposition.
79 Tex. Crim. 78Hoecker v. State (1916)
The opinion states the case.
79 Tex. Crim. 80Ariola and Manchaca v. State (1916)
The opinion states the case.
79 Tex. Crim. 83Sparks v. State (1916)
1. —Carrying Pistol — Recognizance. • The record must disclose that a recognizance has been given or that the appellant is in jail and has been continuously confined therein to confer jurisdiction on this court. But where the case was dismissed and it was afterwards shown that defendant was in custody, the appeal is reinstated. Following McHenry v. State, 42 Texas Crim. Rep., 469. 2. —Same—Insufficiency of the Evidence — Own Premises. Where, upon trial of unlawfully carrying a pistol, the evidence did not show that defendant was off the premises on which he was living, the same is reversible error, although he might be guilty of firing his pistol.
79 Tex. Crim. 84Grigsby v. State (1916)
Misdemeanor — County Court — Appeal—Jurisdiction. Where appellant was tried in the Corporation Court and appealed to the ■County Court where he was fined one hundred dollars, the judgment was final and no appeal lies to this court.
79 Tex. Crim. 85Cutbirth v. State (1916)
Perjury — Companion Case — Precedent. Where, upon appeal from a conviction of perjury, the issues raised were substantially the same as those raised in a companion case which was decided adversely to the appellant, they need not be again reviewed, and the judgment is affirmed. [Behearing denied March 29, 1916. — Beporter.]
79 Tex. Crim. 85Jones v. State (1916)
The opinion states the case.
79 Tex. Crim. 87McAlister v. State (1916)Affirmed
1. Criminal Law <S=o372 — Evidence or Other Offenses — Sales of Liquor. Witness having testified to purchase of liquor from defendant, and on cross-examination that he had gone to defendant’s house, and defendant’s wife delivered the liquor to him, and he afterwards paid defendant for it, he may on redirect testify to it having been customary for him to make purchases from defendant this way, as showing defendant’s system of making sales and delivery. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dee. Dig. 372.] 2. Criminal Law <§=»S0 — Principals—Misdemeanors. In misdemeanors all parties connected either as &n accomplice or principal may be prosecuted and convicted as principals. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 103-111, 1384; Dec. Dig. <®^80.]
79 Tex. Crim. 87McAllister v. State (1916)Affirmed
1. — Local Option — Evidence—Other Transactions — Date of Sale. Where the appellant complained that the lower court erred in permitting the main State’s witness to testify that prior to the day of the alleged sale he had purchased whisky from appellant, but it appeared from the record that the State’s witness had testified to a purchase of whisky from appellant, and the latter on cross-examination developed the fact that said State’s witness had received the whisky from appellant’s wife, it was permissible for the State to show on redirect examination of the witness that it was customary for the witness to make purchases of appellant in this way. Following Holland v. State, 51 Texas Crim. Rep., 142, and other eases. 2. — Same—Misdemeanor—Accomplice—Principals. In misdemeanor cases, if one advises another or acts through an agent, whether present or not, or whether acting with those actually engaged in the commission of the offense or not, he is a principal and can he convicted as such, and there was no error in the court’s charge that if defendant made a sale of whisky, acting alone or with his wife, he would he guilty. Following Lott v. State, 58 Texas Crim. Rep., 604, and other cases.
79 Tex. Crim. 89Rios v. State (1916)
1. —Murder—Notice of Appeal — Judgment—Nunc Pro Tunc. In the absence of notice of appeal properly entered in the minutes of the court, and an incorrect entry of the judgment which was attempted to be amended in vacation, the appeal must be dismissed; however, it being made to appear that the clerk made the mistake and the proper judgment being entered nunc pro tune at a succeeding term of court, and notice of appeal being given therefrom, this court has jurisdiction. Following Madison v. State, 17 Texas Crim. App., 479, and other eases. 2. —Same—Name of the Defendant — Indictment—Two Days — Arraignment. Where defendant filed a written motion suggesting his true name and a correct order was entered noting the true name of defendant, there was no error in refusing to abate the indictment, and it was not necessary to postpone the case for another two days; the indictment having been served on the defendant more than two days before his arraignment. Following Sinclair v. State, 34 Texas Crim. Rep., 453. 3. —Same—Written Statement of Defendant — Warning—Confession. Where the defendant made a voluntary statement at the examining trial under articles 294, 295, Code Criminal Procedure, the same was not an extrajudicial confession under article 810, Code Criminal Procedure, and it could be shown by oral testimony that all requirements of the statute had been complied with in taking these statements. Following Guy v. State, 9 Texas Crim. App., 161. 4. —Same—Voluntary Statement — Spanish Language — Translation. Where it did not appear in the record that the voluntary statement of defendant at the examining trial was made in the Spanish language, and translated into English, the contention that it was so made can not be reviewed on appeal.
79 Tex. Crim. 93McPherson v. State (1916)
1. — Burglary—Evidence—Circumstances—Other Transactions. Upon trial of burglary, there was no error in admitting testimony that the defendant was in possession of a key to a burglarized house, neither was there any error to admit in evidence that another house was burglarized on the same night, same being in the same building, and the transaction was so interwoven as to be part and parcel of the same transaction. 8. — Same—Evidence—Rebuttal—Res Gestae. Where, upon trial of burglary, the State introduced testimony that the defendant and his son and another walked down in front of the saloon which was burglarized, and in a few moments turned and went into the saloon, the court should have admitted testimony in rebuttal that while defendant _ was standing there waiting for a ear he was called into the saloon by a third party and asked to take a drink, through an open door and that when he and his companions got inside and saw what was taking place they refused to drink and at once left the place; said third party being the alleged burglar, and what was said by said third party to the defendant was res gestae. Following Hunter v. State, 54 Texas Crim. Rep., 224, and other eases. 3. —Same—Evidence—Judgment. Where, upon trial of burglary, defendant desired to introduce the judgment showing that other parties had pleaded guilty to burglarizing the said saloon, he should have been allowed to do so. 4. —Same—Rule Stated — Evidence—Res Gestae — Declarations of Third Parties. Where, upon trial of burglary, defendant claimed that certain other parties committed the alleged burglary, and that he and his son and another party were called into the said saloon to take a drink by the said parties who were then in the act of burglarizing said saloon and taking liquors therefrom, the acts and declarations of said alleged burglars were res gestae, and admissible in evidence. Following Thomas v. State, 47 Texas Crim. Rep., 534, and other eases. 5. —Same—Evidence—Imputing Offense to Another. W'here, upon trial of burglary, it was evident from the State’s testimony that all the five men who were in the alleged burglarized saloon did not enter from the front door and did not go in together, any testimony was admissible which would tend to show that the two persons to whom defendant imputed the burglary alone were the parties who broke and entered the saloon, and had invited the others in to take a drink who as soon as they perceived that a burglary was being committed left the place. Following Dubose v. State, 10 Texas Crim. App., 230, and other cases. 6. —Same—Evidence—Principals—Charge of Court. Where, upon trial of burglary, there was evidence showing that defendant so conducted himself as to be a principal in- the transaction, but defendant’s testimony would show that he was an innocent bystander, the court should have admitted the testimony of defendant and given a proper charge thereon in his charge on principals. 7. —Same—Evidence—Remarks by Court. On trial of burglary, where defendant testified that when he saw the parties in the saloon and understood that they were in the act of burglarizing the same, he should have been permitted to show that he had none of the stolen liquor which was taken from the saloon about his person or in his house, and that the latter was searched and no liquor was found, and the remarks of the court that this testimony was immaterial was improper. Following Brown v. State, 56 Texas Crim. Rep., 87, and other cases. 8. — Same—Bill of Exceptions — Motion for Rehearing. Where the State filed a motion for rehearing insisting that a certain hill of exceptions was insufficient in that the answer of the witness was not stated, but the record showed that the bill of exceptions presented the matter properly for review, and the same presented error, this court was authorized in reviewing the questions therein raised.
79 Tex. Crim. 98Sullenger v. State (1916)
The opinion states the case.
79 Tex. Crim. 104Whetstone v. State (1916)
The opinion states the case.
79 Tex. Crim. 106Chamberlain v. State (1916)
The State’s testimony showed that the party injured was assaulted in the night-time, in the City of Dallas, by defendant and another, who took his money from him, and that he recognized defendant by the street lights. The defendant claimed an alibi.
79 Tex. Crim. 109Mikeska v. State (1916)
79 Tex. Crim. 125Hickman v. State (1916)
1. — City Ordinance — Corporation Court — County Court — Appeal—Jurisdiction. Where appellant was convicted in the Corporation Court of a city for violating the city ordinance, from which conviction he appealed to the County Court of the county of the prosecution, the latter court had jurisdiction to entertain the appeal. Following Taylor v. State, 16 Texas Crim. App., 514, and other cases; contra Jarvis v. Taylor County, 163 S. W. Rep., 334. <3. — Same—Corporation Court — City Ordinances. Since the adoption of the amendment to the Constitution of 1891, section 1, article 5, has been held by both the Supreme Court and this court that the Legislature has the power to create a Corporation Court with power and authority to enforce both laws of the State and city ordinances. Following Ex parte Abrams, 56 Texas Crim. Rep., 465, and other cases. 3. —Same—Right of Appeal — Corporation Court — County Court — Practice. Under 'the Act of the Legislature of 1899, under section 16 of said Act the right of appeal from a Corporation Court to the County Court is specifically recognized in all criminal cases arising under the ordinances of the city, town or village of which the justice of the peace has concurrent jurisdiction, and where the fine is not in excess of two hundred dollars, and the rules of pleading, practice and procedure established for the County Court apply to such Corporation Court where the prosecution is either for the violation of a city ordinance or the law of this State. 4. —Same—Constitutional Law — Statutes Construed — Justice Court — Inferior Tribunals — Criminal Offense — Appeal. Section 22, article 5, Constitution of Texas, authorizes the Legislature to confer jurisdiction on the County Court to entertain appeals from the Corporation Court, Justice Court and other inferior tribunals, and section 16 of the Act of 1899 provides for an appeal to the County Court from said Corporation Courts, and a trial de novo; and said Act of 1899 specifically defines a violation of th^ city ordinance to be a -criminal offense.
79 Tex. Crim. 129Laird v. State (1916)
The opinion states the case.
79 Tex. Crim. 148Hudson v. State (1916)
The opinion states the case.
79 Tex. Crim. 149Black v. State (1916)
1. —Theft—Insufficiency of the Evidence. Where, upon trial of theft of coal, the evidence was insufficient to sustain the conviction, the same was reversible error. 2. —Same—Evidence—Immaterial Testimony. Where defendant admitted that he had sold the alleged stolen property to a certain female, bis illicit relations with her should not have been admitted in evidence, the defendant’s reputation not being in issue.
79 Tex. Crim. 150Hyroop v. State (1915)
1. —Unlawfully Practicing Medicine — Information. Where, upon trial of unlawfully practicing medicine, the information was according to approved precedent, there was no error in overruling a motion to quash. Following Collins v. State, 68 Texas Crim. Rep., 354, 152 S. W. Rep., 1047. 2. —Same—Constitutional Law. The Medical Practice Act is constitutional, and has been so held by this and the Supreme Court of the United States. Following Collins v. State, supra. 3. —Same—Accomplice—Detective. Where, upon trial of unlawfully practicing medicine, the evidence showed that some of the witnesses who were treated by defendant as a practicing physician were detectives, the contention of defendant, that this made them accomplices and the court should have so instructed the jury, is untenable as they were not accomplices. 4. —Same—Evidence—Masseur. Where, upon trial of unlawfully practicing medicine, the defendant contended that he was a masseur, and therefore did not have to obtain and register a certificate, there was no error in permitting the State to show that he was treating disease by other means and methods than that usually ascribed to a masseur, and also to show that defendant had an account at a drug store for medicines, etc. 5. —Same—Evidence—Masseur—Advertising. Where, upon trial of unlawfully practicing medicine, the record showed that defendant did not state, in offering hi’s testimony, that he could have proved by his witnesses that his treatment was that of a masseur in his particular sphere of labor, there was no error; besides the fact that he advertised and held himself out as a masseur would not prevent the State from showing that he treated his patients by other means than those .customarily used by a masseur in his particular sphere of labor, and it was not necessary to show that he actually administered medicine. 6. —Same—Evidence—Circular—Advertising. Upon trial of unlawfully practicing' medicine, there was no error in the court’s refusal to sustain defendant’s objection to admitting in evidence the circular which defendant used for advertising purposes, as defendant admitted this fact, and there was no error to refuse to permit witnesses to testify as to its contents, and if he practiced as a physician, the fact that he did not so hold himself out was no defense. [Rehearing denied ¡November 10, 1915. This case did not reach the Reporter until April, 1916. — Reporter.]
79 Tex. Crim. 153O'Toole v. State (1916)
1. —Vagrancy—Sufficiency of the Evidence. Where, upon trial of vagrancy, the evidence, though rather meager, was sufficient to sustain a conviction, there was no reversible error. 2. —Same—Charge of Court — Practice in County Court. Where the trial court had notified both parties that he would not give a written charge, and the defendant presented requested charges after the argument had closed, there was no error in the court’s refusal to submit them. 3. —Same—Evidence—Bill of Exceptions. Where the hill of exceptions showed that the defendant only objected to certain testimony, which objection the co.urt sustained, objections to other parts of the testimony after trial come too late. 4. —Same—Evidence.—Bill of Exceptions. Where the hill of exceptions as to certain testimony with reference to the residence of the defendant showed that the same was admissible, there was no reversible error. 5. —game—Practice—Evidence—Motion to Strike Out Evidence. Where the motion to strike out the testimony was filed with the clerk, and was not called to the attention of the trial judge until after the trial, the motion for new trial was correctly overruled. , 6. — Same—Charge of Court — Practice—County Court. Where the trial judge gave no written charge at all, hut permitted the attorney for the defendant to argue the law and read it to the jury without objection by thé State, there was no reversible error.
79 Tex. Crim. 156Hill v. State (1916)
79 Tex. Crim. 156Hill v. State (1916)Reversed and remanded
Appeal from District Court, Mills County; John D. Robinson, Judge. E. A. Hill was convicted of rape, and appeals.
79 Tex. Crim. 169Mason v. State (1916)Reversed
Appeal from District Court, Johnson County ; O. L. Lockett, Judge. Will Mason was convicted of murder, and appeals.
79 Tex. Crim. 171Mason v. State (1916)
79 Tex. Crim. 177Knight v. State (1916)
The opinion states the case.
79 Tex. Crim. 182Hernandez v. State (1916)
The opinion states the case.
79 Tex. Crim. 184Summerville v. State (1916)
The opinion states the case.
79 Tex. Crim. 185Gleason v. State (1916)
1. —Seduction—Evidence—Cross-Examination—Supporting Testimony. While the cross-examination may not have authorized the State to support prosecutrix’s testimony by proof of prior statements made before the date of the alleged act of intercourse, yet where appellant introduced her testimony on the former trial to impeach her as- to a prior existing promise of marriage, then the State could support her testimony and prove by her mother that some two or three months prior to the alleged act of intercourse prosecutrix had told her that she was engaged to marry the defendant, and by her sister’s testimony that she helped the prosecutrix then in making her wedding clothes. Following Williams v. State, 24 Texas Crim. App., 637, and other cases. 2. —Same—Evidence—Leading Questions. Upon trial of seduction, under the circumstances and facts of the case, there was no error in permitting the State to propound questions to the prosecutrix whether or not she loved the defendant and whether she would have submitted if she had not loved him. Following Hinman v. State, 59 Texas Crim. Rep., 29, 127 S. W. Rep., 221, and other cases. 3. —Same—Evidence—Declarations of Defendant. Upon trial of seduction, where the prosecutrix had testified to meeting defendant several times after she became aware that she was pregnant and that he always promised that he would carry out his promise and marry her, it was not improper to permit her to testify that shortly before the birth of the baby defendant was at her home and at that time said that he was not going to marry her but that she could go to hell or any other damn place, and then fled the country. 4. —Same—Evidence—Conversation. Where a State’s witness testified to a conversation he had with defendant, there was no objection in permitting the witness to state what he said to defendant, as it was necessary to render intelligible the statements of defendant on that occasion, and to permit the entire conversation to be introduced in evidence, as the. same amounted to an admission that he seduced the prosecutrix and felt legally obligated to marry her, all of which corroborated her statements. Following Davis v. State, 3 Texas Crim. App., 91, and other cases. 5. —Same—Bill of Exceptions. Where the bill of exceptions did not disclose what the answer of the witness would have been to the question propounded, it presented nothing for review, as it must always be shown that it is as to some material fact in the past. Following May v. State, 25 Texas Crim. App., 114, and other cases. 6. —Same—Evidence—Impeaching Witness — Limiting Testimony. Where a defendant’s witness testified to a material fact which tended to show that prosecutrix was not a virtuous and chaste female, it was proper to permit testimony to be introduced showing that the witness had made contrary statements at the former trial, and it was not necessary to limit this impeaching testimony. Following Brown v. State, 24 Texas Crim. App., 170, and other cases; Y. — Same—Evidence—Recent Fabrications — Rebuttal. Where the defendant made an effort to create the impression that the testimony of the prosecutrix was of recent fabrication, and. that the attorneys for the State had suggested to -her that it was necessary that she must add to her former testimony, there was no error in permitting State’s counsel to ask her in rebuttal whether it was not a fact that the State’s attorneys had told her that the ease had been reversed and wanted to know of her whether there was anything she had forgotten, as they wanted to know the truth, the whole truth, and nothing but the truth, and in permitting her to answer the question; the fact of the reversal of the case having already been brought out by the defendant. 8. —Same—Bringing the Child Into Court. Where, upon trial of seduction, the prosecutrix came into the court-room with her baby in her arms, and the court immediately had the same removed and it was testified to by other witnesses that she had a baby, there was no error. 9. —Same—Sufficiency of the Evidence — Charge to Acquit. Where, upon trial of seduction, the evidence sustained a conviction, there was no error in refusing to give peremptory instructions to acquit. 10. —Same—Evidence—Incidental Facts. Where, upon trial of seduction, the prosecutrix and her mother were severely cross-examined as to their good standing in the community, there was no error in permitting the mother of the prosecutrix to state incidentally that she was a member of the church. 11. —Same—Charge of Court — Promise of Marriage. Upon trial of seduction, there was no error in the court’s refusal of a requested charge to the effect that if the jury found that the prosecutrix yielded to defendant wholly on account of said promise to marry her, to acquit him, as the contrary proposition is the law. 18. — Same—Corroboration—Charge of Court — Accomplice. Where defendant asked for peremptory instructions to acquit on the ground that there was no evidence corroborating the testimony of prosecutrix as to a promise of marriage and the act of sexual intercourse, but the testimony showed the admissions of defendant as to both of these and also by other facts and circumstances, there was no error in refusing appellant’s requested charges; the court charging in approved form upon accomplice’s testimony. Following Campbell v. State, 57 Texas Crim. Rep., 301, 123 S. W. Rep., 583. \ 13. — Same—Requested Charges — Presumption of Innocence — Reasonable Doubt. Where, upon trial of seduction, the court gave a full charge applicable to the facts, including the presumption or innocence and reasonable doubt, and a proper charge on accomplice’s testimony, there was no reversible error. 14. —Same—Seduction—Barter and Sale. Where the defendant contended that the évidence of prosecutrix did not make a case of seduction, but showed a case of barter and sale, but the record showed the contrary, the conviction was sustained. 15. —Same—Supporting Testimony — Buie Stated. It has always been the rule in this court that if defendant’s case is left to a witness who testified under a corrupt motive or that her testimony is of recent fabrication, that the State may sustain the witness by proof of similar statements in harmony with her testimony, made before any motive existed to testify falsely. Hollowing English v. State, 34 Texas Crim. Rep., 190, and other cases, 16. —Same—Accomplice—Corroborating Herself. Such supporting testimony was not permitting a conviction by allowing prosecutrix to corroborate herself, but was admissible in ■ determining whether ! or not she was speaking the truth, and the jury were specifieially so instructed! 17. —Same—Corroboration—Promise of Marriage. . v Where defendant contended that prosecutrix was not corroborated as to defendant’s promise of marriage, yet it appeared from the testimony that no other deduction could be drawn therefrom, there was no reversible error. 18. —Same—Promise of Marriage — Charge of Court. It was not proper, upon trial of seduction, to charge the jury as requested I if the prosecutrix relied solely on the promise of marriage to acquit the defendant. 19. —Same—Sufficiency of the Evidence — Eight Months Child. Where, upon trial of seduction, the evidence was sufficient to sustain a conviction, the fact that the child was born eight months after the act of sexual intercourse would not render the testimony wholly insufficient, as such children frequently live.
79 Tex. Crim. 196Clark v. State (1916)
The opinion states the case.
79 Tex. Crim. 196Galindo v. State (1916)
The opinion states the case.
79 Tex. Crim. 198Carrell v. State (1916)
The opinion states the case.
79 Tex. Crim. 206Duncan v. State (1916)
The opinion states the case.
79 Tex. Crim. 209Odell v. State (1916)
1. — Assault to Rape — Evidence—Credibility o£ Witness — Ill-will—Motive —Acts of Third Parties. Where, upon trial of assault with intent to rape, the prosecutrix, who was a girl about fourteen years of age, testified that she was assaulted by some one who threw a blanket over her head and attempted to ravish her and thar during the struggle she recognized defendant, and that when her parents returned she notified them of the assault, and it was also in evidence that prosecutrix had stated to different persons after the occurrence that she did not know her assailant, and her younger brother also testified for the State that he heard the outcry of his sister when she called defendant’s name at the time of the assault and then saw the defendant running off, and the parents of the prosecutrix did not testify, and the evidence further showed that these children were minora under the control of prosecutrix’s parents, and the boy had made the statement a day after the occurrence that he thought it was not the defendant. Held, that it was reversible error not to permit the defendant to show that the father of the prosecutrix had brought a sequestration suit against the father of the defendant about the time the complaint against the defendant was filed, and had thereafter agreed to compromise the prosecution and the civil suit with the father of the defendant who refused to compromise, and that thereupon, said father of the prosecutrix became very angry, etc., to show the bias, prejudice and ill-feeling of the said father of the prosecutrix and that he influenced his children to testify falsely. Following Edwards v. State, 172 S. W. Rep., 252, and other cases. Prendergast, Presiding Judge, dissenting. 8. — Same—Practice in District Court — Removing Wife and Child of Defendant from Court Room. Where, upon trial of assault with intent to rape, after both sides had closed their evidence, the court suspended proceedings, retired the jury and instructed the officer to remove the wife of defendant and her baby from her seat by her husband in front of the jury inside of the railing of the bar, and when afterwards the child returned to defendant who placed it on Ms knee, the court went through the same proceedings and had the child removed and sent back to its mother; the court qualifying defendant’s bill of exceptions to the effect that under the rule of the court he did not allow relatives to sit by defendant at the bar._ Held that this action of the court may have tended to impress the jury against the defendant, and that under the circumstances of this case it wag improper. Prendergast, Presiding Judge, dissenting.
79 Tex. Crim. 219Stone v. State (1916)
The opinion states the case.
79 Tex. Crim. 222Reed v. State (1916)
1. —Perjury—Indictment. Where, upon trial of perjury, the indictment followed approved precedent, there was no error in overruling a motion to quash. Following Anderson v. State, 56 Texas Crim. Rep., 360, and other cases. 2. —Same—Continuance—Second Application — Bill of Exceptions. Where defendant accepted' the bill of exceptions with the qualification by! the court that it was the second application for continuance, he cannot be heard to dispute that fact on appeal, and where one of the absent witnesses was a fugitive from justice and had testified before and the same was permitted to be introduced in evidence, and the testimony of another absent witness was immaterial and the witness will probably not testify as contended, there was no error in overruling the motion for continuance. 3. —Same—Buie Stated — Continuance—Motion for New Trial. In passing on a supposed error in refusing a continuance, the court will look to evidence adduced on the trial, and where it appears therefrom that the absent witness could not have known anything about the facts to which it is alleged he would testify, there is no reversible error. Following Lindsey v. State, 35 Texas Crim. Rep., 164, and other cases. 4. —Same—Buie Stated — Cumulative Testimony. It has always been the rule of this court that a second application for a continuance will not be granted to secure testimony that is merely cumulative of the testimony adduced on the trial. Following Harvey v. State, 35 Texas Crim. Rep., 545, and other cases. 5. —Same—Evidence—Opinion of Witness — Corroboration. Where the perjury was based on testimony of defendant in a slander case that the slandered female had had carnal intercourse with him, the defendant, and there was testimony in the said slander case that said female had been physically examined by several physicians who testified that the said female had never had carnal intercourse with any man, this was a statement of a fact, and not merely an opinion, and could be used in corroborating said female to the effect that defendant swore falsely, and brought the State’s testimony under the rule that a conviction, for perjury can be sustained by one credible witnesss corroborated strongly by other evidence. 6. —Same—Charge of Court — Corroboration.—Perjury. Where the court in his main charge instructed the jury that they could not convict the defendant for perjury, unless the falsity of the statement had been established by the testimony of one credible witness strongly corroborated, and the testimony of the main State’s witness denied that she had had carnal intercourse with the defendant as he falsely swore on the trial for slander, and was corroborated not only by the physicians who physically examined her and testified that she had never had carnal intercourse with any man, but by a number of witnesses testified to her good reputation for virtue and chastity, there was no error in refusing a requested charge that the corroboration by testimony of physicians as to the physical examination was not sufficient. 7. —Same—Evidence—Reputation for Chastity. Where, upon trial for perjury, one of the issues was whether the prosecuting witness was a chaste woman, and the defendant had introduced testimony tending to show that she was not, there was no error in permitting the State to introduce testimony that her reputation for virtue and chastity was good. Following Wilson v. State, 17 Texas Crim. App., 525. ' 8. — Same—Rule Stated — Rebuttal Testimony. It has always been the rule of this court when the defendant by his testimony injects any issue into the case material thereto, the State can meet that proof by rebuttal testimony. Following Knight v. State, 64 Texas Crim. Rep., 541, 144 S. W. Rep., 967. 9. —Same—Charge of Court — Voluntary Witness. Where, upon trial of perjury, the evidence showed that on trial for slander-defendant had testified that before said alleged slander he had had carnal intercourse with the alleged slandered female which the latter denied, and upon which the perjury was based, and the evidence further showed that the defendant voluntarily testified as a witness in said slander case, there was no error in refusing a requested charge that the jury could not convict defendant if he was compelled to testify in such slander case. 10. —Same—Evidence—Affidavit—Impeachment. Where, upon trial of perjury, a witness for defendant gave damaging testimony to the reputation for virtue and chastity of the State’s main witness, and was asked on cross-examination whether he had not said that the affidavit he made was untrue, and that part of the affidavit which related to this matter was introduced in evidence, there was no error in refusing the introduction of the remainder of said affidavit which related to a different matter. 11. —Same—Evidence—Questions Propounded by Court. Where defendant objected to questions propounded by the court, and" the bill of exceptions showed that the jury was retired at the time, and no objections were raised thereto at the time and that none of the questions which were asked the witness by the court were asked by the State’s counsel, there was no reversible error. [Rehearing denied March 15, 1916. — Reporter.]
79 Tex. Crim. 229Cline v. State (1916)
1. — Murder—Precedent—Companion Cases. Where, upon trial of murder, the same was tried in accordance with the opinion of this court in companion cases, there was no reversible error. 3. — Same—Principals—Conspiracy—Precedent. Where, upon trial of murder, the law of principals, conspiracy, etc., was correctly decided by this court in companion cases, there is no reason to again discuss these questions. 3. —Same—Evidence—Newspaper Manifestos — Spanish Language. Where, upon trial of murder, the case was largely dependent on circumstantial evidence to show a conspiracy, there was no error in admitting in evidence a certain newspaper manifesto, not withstanding defendant testified that he had never seen or read the same and could not read Spanish, the same being in Spanish. This document, like all the other several articles found with the company of which defendant was a member, was admissible in evidence. Following Martinez v. State, 171 S. W. Rep., 1153. 4. —Same—Charge of Court — Objections—Bill of Exceptions. In the absence of a showing in the record that the objections to the court’s charge were seen by or acted upon by the trial judge, and the insufficiency of the bills of exceptions to the refusal of the court to give special requested instructions, the matter can not be reviewed on appeal. Following Byrd v. State, 69 Texas Crim. Rep., 35, and other cases. Besides there was no reversible error. 5. —Same—Sufficiency of the Evidence — Practice—Precedent. Where, upon trial of murder, the evidence was sufficient to sustain the com viction under a proper charge of the court, and all the questions raised are adversely decided in companion cases, there was no reversible error. [Rehearing denied March 15, 1916. — Reporter.]
79 Tex. Crim. 231Carrell v. State (1916)
The opinion states the case.
79 Tex. Crim. 234Lake v. State (1916)
1. —Murder—Principal—Charge of Court — Presence of Defendant. Where, upon trial of murder, the evidence sufficiently raised the issue that defendant was a principal as charged in the indictment and had conspired with another to kill the deceased, or knowing the unlawful intent to kill, aided such other person by acts or encouraged him by words or gestures to kill the deceased, he may be convicted as a principal even though he may not at the time of the killing have been bodily in the immediate presence of the actual slayer, and it became the duty of the court to apply the law of principals and properly submit the issue to the jury for a finding. Following Serrato v. State, 74 Texas Crim. Rep., 74, and other cases. 2. —Same—Principal—Keeping Watch. — Procuring Arms — Charge of Court. Where, upon trial of murder and the conviction for said offense, the evidence did not raise the issues, either that defendant kept watch so as to prevent the interruption of the one committing the offense, or that he purchased arms to assist in the commission of the offense, and the court submitted in his charge to the jury both of these issues and authorized the jury to convict the defendant if they believed either of such issues, the same was reversible error. 3. —Same—Principals—Charge of Court. Where, upon trial of murder, the defendant’s acts and declarations in connection with his son, who actually fired the fatal shot, were such as to raise the issue and require the submission of the same to the jury whether or not the defendant was a' principal, the court’s charge on principals on this phase of the case was proper. 4. —Same—Self-defense—Resorting to Other Means to Prevent the Injury. Where, upon trial of murder, the evidence hardly raised the issue of self-defense, unless it showed that defendant’s son, who did the killing aided and encouraged by defendant, resorted to all other means for preventing any injury upon him by deceased before he had the right to shoot and kill him, which was not shown, but the court nevertheless submitted manslaughter and self-defense, the defendant could not complain. 5. —Same—Provoking Difficulty — Self-defense—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of provoking the difficulty, even if self-defense was raised thereby, it was error in the court below to submit any question of provoking the difficulty. 6. —Same—Evidence—Conduct of Counsel for the State. Where the bills of exception to the exclusion of certain testimony and to the question asked by the district attorney presented no' error, they need not be reviewed on appeal.
79 Tex. Crim. 241Wright v. State (1916)
The opinion states the case.
79 Tex. Crim. 244Chandler v. State (1916)
The opinion states the case.
79 Tex. Crim. 245Redwine v. State (1916)
1. — Rape—Age' of Prosecutrix — School Census — Affidavit—Husband and Wife. Where, upon trial of rape upon a female under the age of consent, the State introduced in evidence over the objection of defendant the affidavits of the wife of defendant with reference to the school census to show the age of prosecutrix, and said wife had not been called on the witness stand by the defendant, and this matter was not brought out on cross-examination, the same was reversible error; besides, it appeared that defendant was not present when these affidavits were taken. 2. — Same—Evidence—Bible—Erasures. Where, upon trial of rape on a female under age of consent, the Bible was introduced to show the birth of the prosecutrix, and certain erasures appeared therein, it is not necessary to pass on this matter as the same may be properly adjusted upon another trial.
79 Tex. Crim. 247Fyke v. State (1916)
The opinion states the case.
79 Tex. Crim. 251Lloyd v. State (1916)
Rudely Displaying Pistol — Public Place — Charge of Court — Theory of Defense. Where, upon trial of rudely displaying a pistol in a public place, etc., the evidence showed that the pistol was fired in the air in the back door of a store where defendant was trading for a pistol to see whether it would shoot, in a small town, and that there was nothing but woods in the rear of the store where the pistol was fired, and that the proprietors of said store in selling firearms frequently permitted their customers in trying out said firearms to shoot out of the back door into the woods, and the court instructed the jury that to hold a pistol in the hand and fire the same in a public place as herein defined is to rudely display the same as contemplated by law, which was excepted to by appellant, and was reversible error, as this was a charge on the weight of the evidence; besides the court should have submitted the theory of defense raised by the evidence. Distinguishing Gozy v. State, 34 Texas Crim. Rep., 146.
79 Tex. Crim. 254McDougal v. State (1916)
1. —Murder—Provoking Difficulty — Charge of Court. Where, upon trial of murder, the testimony of the State raised the issue of provoking the difficulty, the court properly submitted a charge thereon. Distinguishing McCandless v. State, 42 Texas Crim. Rep., 58 and other cases. Following Tardy v. State, 47 Texas Crim. Rep., 444, and other eases. 2. —Same—Provoking Difficulty — Manslaughter—Rule Stated — Intent. If defendant provoked the difficulty with no intent to kill the deceased, or to inflict serious bodily injury upon him, and thereby brought about the necessity of killing the' deceased to save his own life, or to prevent serious bodily injury, being inflicted upon him by deceased, the offense would be manslaughter. Following Jones v. State, 17 Texas Crim. App., 602, and other cases. 3. —Same—Provoking Difficulty — Manslaughter—Charge of Court — Self-defense — Intent. Where, upon trial of murder, the court instructed the jury, in effect, that if they had a reasonable doubt that defendant intended by his words and conduct to provoke the difficulty his right of self-defense would be abridged, or if the jury had a reasonable doubt as to whether the defendant employed words or acts towards deceased that were reasonably calculated to provoke a difficulty, his right of self-defense would be abridged, the same was reversible error, and this was not a correct exposition of the law as applicable to manslaughter. A. — Same—Provoking Difficulty — Charge of Court — Manslaughter. Where, upon trial of murder, the evidence raised the issue that if the defendant provoked the difficulty he did not at the time intend to kill the deceased or inflict serious bodily injury, and that he killed him because deceased advanced upon him with an open knife, this theory of the case should have been submitted to the jury on the issue of manslaughter, and as the court’s charge as given only authorized the jury to acquit or find him guilty of manslaughter, in the event they found he did not provoke the difficulty, regardless of his' intent of doing so, the same was reversible error. 5. —Same—Husband and Wife — Cross-examination—Impeachment. Where, upon trial of murder, the wife of defendant was introduced by him as a witness and testified as to the facts immediately attendant upon the homicide, how it arose and oceured, and that deceased was assaulting the defendant with an open knife when defendant shot him, there was no error in permitting the State on cross-examination to 'ask her if on the day of the homicide and shortly thereafter, she did not. tell others that defendant killed deceased because he had sued him, and that she did everything to keep him from doing it, which she denied, and thereupon permitting said witnesses to whom she had made this statement to testify that she did make the same, and thus impeach her testimony. Following Johnson v. State, 72 Texas Crim. Rep., 387, and other cases. Distinguishing Hobbs v. State 53 Texas Crim. Rep., 71. 6. —Same—Rule Stated — Husband and Wife — Cross-examination—Impeachment. The defendant’s wife, when he places her upon the stand as a witness may be impeached by showing that she had made contradictory statements, the same as any other witness as to matters she testified to on direct examination at defendant’s instance. 7. —Same—¡Evidence—Character of Deceased. . Where, upon trial of murder, defendant attacked the reputation of the deceased as a peaceable and law-abiding citizen, it was permissible for the State to show by the intimate associates of deceased, who had known him for many years, that he was not a man who cursed, and they had never heard him use any oath; defendant having testified that deceased cursed him at the time of the difficulty. Following Bearden v. State, 83 S. W. Rep., 808, and other cases. 8. — Same—Threats—Charge of Court. Where, upon trial of murder, there was no evidence that deceased prior to this difficulty had ever made any threats against the defendant, and the only threats testified to by defendant, if made by deceased, were such which occurred in the wordy altercation immediately preceding the fatal shooting, no charge on threats was called for or was required; besides a charge on threats was given even more favorable to defendant than he was entitled to. Following Hancock v. State, 47 Texas Crim. Rep., 3, and other cases.
79 Tex. Crim. 267Howard v. State (1916)
The opinion states the case.
79 Tex. Crim. 271Leonard v. State (1916)
The opinion states the case.
79 Tex. Crim. 273Cantrell v. State (1916)
Selling Intoxicating Liquors Without License — Statement of Facts — Bills of Exception. Where, upon conviction of a misdemeanor in the County Court, the statement of facts and bills of exception were filed too late, they must be stricken out on motion of the State. Following DeFriend v. State, 69 Texas Crim. Rep., 329, 153 S. W. Rep., 881, and other eases.
79 Tex. Crim. 274Taylor v. State (1916)
1. — Rape—Continuance—Diligence. Where, upon trial of rape, defendant’s application for a continuance showed due diligence, and that the testimony of the absent witness was material, and • this was shown in the trial of the case, the motion for new trial should have been granted. , 3. — Same—Evidence—Supporting Testimony. Where, upon trial of rape, the defendant testified, among other things denying that he saw a certain State’s witness and talked to him, it was error to permit the State to call a witness in support of the testimony of another State’s witness who said he had talked with defendant at a certain time and place. 3. — Same—Marriage License — Evidence. Where, upon trial of rape, the age of the prosecutrix was an issue in the case, the marriage license if properly proven up would have been admissible iu evidence, it being in evidence that prosecutrix was born one year from said date of marriage.
79 Tex. Crim. 276Barnes v. State (1916)
Local Option — Indictment—Date of Election — Jurisdiction. An indictment which merely alleged that the local option law had been adopted prior to the presentment of the indictment, giving no date, and alleging a sale subsequent to the enactment of the felony statute, presents on its face a felony charge and, of course, can not be tried in the County Court. Following Hamilton v. State, 65 Texas Crim. Rep., 508, and other cases. Opinion states the ease.
79 Tex. Crim. 277Meredith v. State (1916)
Appeal'from the District Court of Medina. Tried below before the Hon. B. H. Burney. Appeal from a conviction of theft of money received by defendant as agent and held in trust for a life insurance company, penalty, two years imprisonment in the penitentiary. The opinion states the case. ' - .
79 Tex. Crim. 285Teem v. State (1916)
The opinion states the case.
79 Tex. Crim. 303Tudyk v. State (1916)
The opinion states the case.
79 Tex. Crim. 305Gay v. State (1916)
Ho. 3650. State of Texas vs. L. W. Gay. In the County Court, Comanche County, Texas. October 4, 1915.
79 Tex. Crim. 313Jemison and Jackson v. State (1916)
• 1„ — Theft of Hog — Ownership—Possession—Variance—Charge of Court. Where, upon trial of theft of a hog, the evidence showed that the party-alleged to he the owner of said hog was the real owner, and that said hog wag in Ms actual control, care and management, although his hired hands assisted him therein, there was no variance in the proof and allegations* ,.as to the possession and ownership of the alleged stolen property, the court emitting said issue to the jury. Davidson, Judge, dissenting. Jr 3. — Same—Argument of Counsel — Allusion to Defendant’s Failure to Testify. Where, upon trial of theft of a hog, the argument of State’s counsel was a reference to defendant’s failure to testify, the same was reversible error. 3. — Same—Accomplice—Farticeps Criminis — Charge of Court. Where, upon trial of theft of a liog, the evidence did not raise the issue that one of the State’s witnesses was an accomplice, there was no error in the ■ court’s failure to charge thereon. Davidson, Judge, dissenting.
79 Tex. Crim. 318Mills v. State (1916)
Rape — Age of Prosecutrix — Charge of Court — Converse of Proposition. Where, upon trial of rape upon a female under the age of consent, a sharp issue was raised as to the age of the prosecutrix, and the court required the jury in his charge to believe beyond a reasonable doubt that the female was under age before they could find defendant guilty, and did not affirmatively submit the converse of the proposition, the same was reversible error.
79 Tex. Crim. 319Pettigrew v. State (1916)
The opinion states the case.
79 Tex. Crim. 321Davis v. State (1916)
The opinion states the case.
79 Tex. Crim. 322Medlock v. State (1916)
1. — Occupation—Intoxicating Liquors — Sufficiency of the Evidence. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the evidence was sufficient to sustain the conviction, there was no reversible error. 8. — Same—Practice—Practice on Appeal. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in local option territory, the district attorney stated that he was going to dismiss another indictment against defendant for the same offense, and did so dismiss it, defendant having first objected and then withdrew his objections, there was nothing to review. 3. — Same—Suspension of Sentence — Statutes Construed — General Reputation. The statutes on suspended sentence (Section 2, Act February 11, 1913, p. 8) expressly prescribe that when the defendant applies in' time for a suspension of sentence in the event he is convicted, the court shall permit testimony and submit the question to the jury as to the general reputation of defendant to enable the jury whether to recommend a suspension of sentence, and this of itself puts in issue his reputation as a peaceable, law-abiding citizen, - and any evidence which tends to show that he is not entitled to such reputation is admissible, and the fact that he has not before that time been convicted of felony does not in and of itself entitle him to a suspension of sentence, and there was therefore no error in admitting testimony that defendant had the reputation of being a bootlegger, etc.; that he ran a dance hall, etc., where liquors were sold. Following Williamson v. State, 74 Texas Crim. Rep., 289, and other cases. Í. — Same—Evidence—Rule Stated. It is well established in this State where more than one of several items of testimony is objected to as a whole a part of which is admissible and other parts are not, there is no error to admit such testimony over a general objection that it is incompetent and illegal. Following Ortiz v. State, 68 Texas Crim. Rep., 524, and other cases. 5. — Same—Evidence—Rule Stated. It is another well established rule that even the erroneous admission of testimony is not cause for reversal, if the same fact is proved by other evidence not objected to. Following Wagner v. State, 53 Texas Crim. Rep., 306, and other cases. And where defendant himself testified that he bore the reputation of unlawfully selling whisky, other testimony that he had the-reputation of being a bootlegger did not constitute reversible error. 6. — Same—Question of Fact — Credibility of Witnesses. The contention that the State’s witnesses were unworthy of belief was a question of fact exclusively for the jury and the trial judge. [Rehearing denied April 26, 1916. — Reporter.]
79 Tex. Crim. 327Foster v. State (1916)
The opinion states the case.
79 Tex. Crim. 329Williams v. State (1916)
The opinion states the case.
79 Tex. Crim. 330Foard v. State (1916)
Disturbing the Peace — Corporation Court — Appeal—Jurisdiction. Where appellant was convicted in the city Corporation Court and appealed therefrom to the County Court where a trial de novo occurred, a fine of one hundred dollars was assessed against him, whereupon he appealed to this court, the appeal must he dismissed for want of jurisdiction. Following Grigsby v. State, 183 S. W. Rep., 143, [Rehearing denied May 3, 1916. — Reporter.]
79 Tex. Crim. 330Foard v. State (1916)dismissed
Appeal from Bexar County Court; Nelson Lytle, Judge. F. O. V. Foard was convicted, and appeals. Appeal
79 Tex. Crim. 331Coleman v. State (1916)
The opinion states the case.
79 Tex. Crim. 332Montoya v. State (1916)
1. — Rape—Fraud—Knowledge and Consent — Charge of Court. Where, upon trial of rape by force, threats and fraud, the court charged the jury a part of article 1066, Penal Code, applicable to rape by fraud, but omitted that part of the statutes which requires that the substance administered to the female was without her knowledge or consent, the same was reversible error; the evidence showing that she drank beer voluntarily. 3. — Same—Threats—Charge of Court. Where, upon trial of rape by force, threats and fraud, the only evidence of threats was that defendant told the female if she did not submit they would leave her on the road and would not take her back to the city, this would not be such a threat as would give just fear of death or great bodily harm, and the court erred in submitting the issue of threats in his charge, 3. —Same—Force—Sufficiency of the Evidence. The contention that the evidence wholly failed to make a case of rape by force can not be sustained, where the evidence showed that the prosecutrix was given beer and that defendant threatened to leave her in the road if she did not submit and would not take her to the city in his automobile, as such evidence while not admissible on the question of fraud and threats was admissible on the question of force, under a proper charge of the court. 4. —Same—Practice on Appeal. ’ Where appellant complained that the jury discussed his failure to testify, and of remarks of court and counsel, but the judgment was reversed and the cause remanded for other reasons, this complaint need not be considered.
79 Tex. Crim. 334Fregia v. State (1916)
1. — Assault to Murder — Charge of Court — Ability to Commit — Deadly Weapon. P Where, upon, trial of assault to murder, there was conflict in the testimony as to whether the pocket knife used in the assault was a deadly weapon, and that the distance between the parties was too great for defendant to have committed the assault, and the court charged the jury that the weapon used was a deadly weapon, and as used, if the jury so found, would entitle the State to a conviction for assault to murder, the same was reversible error. 0. — Same—‘Charge of Court — Deadly Weapon — Intent "to Kill — Aggravated Assault. To constitute assault with intent to murder, the intent to kill coupled with an ability to commit the battery upon the person assaulted must be proved, and if defendant was acting under the influence of sudden passion aroused by an adequate cause, death not resulting, the same is aggravated assault, and proof that the weapon used was a pocket knife is not sufficient of itself to show that the intent was to kill, and the jury should have been properly instructed under this phase of the case. Following Martinez v. State, 35 Texas Crim. Rep., 3§6, _ and other cases.
79 Tex. Crim. 336Burkhalter v. State (1916)
¡L. — Murder—Evidence—Declaration oí Third Parties — Hearsay. Upon trial of murder, the declaration of a third party, with reference to the gun with which deceased was killed, should have been excluded if objection thereto had been made by the State, as said party was a witness in the case and no question was asked him in regard to the matter when he testified. H. — Same—Circumstantial Evidence — Sufficiency of the Evidence. Where, up,on trial of murder, the ease was one depending upon circumstantial evidence, but which with other testimony was sufficient to sustain the conviction, the cause would not be reversed if the court had not failed to submit all the issues made by the testimony. 3. —Same—Imputing a Crime to Another — Charge of Court — Circumstantial Evidence — Alibi. Where, upon trial of murder, the evidence raised the issue which tended to show that another party, and not defendant, had probably committed the offense, the court should have submitted defendant’s requested charge on that issue, and the court’s charge upon alibi and circumstantial evidence, which perhaps negatively presented this issue, was not sufficient. Following Kirby v. State, 49 Texas Crim. Rep., 517. Distinguishing Brown v. State, 169 S. W. Rep., 437. 4. —Same—Rule Stated — Distinct Defense — Charge of Court. When the defendant, in addition to his plea of not guilty, introduces evidence setting up a distinct defense, such defense must be affirmatively presented in the charge of the court, and a negative presentation of such an issue is insufficient. Following Davis v. State, 63 Texas Crim. Rep., 484, and other cases. 5. —Same—Alibi—Charge of Court. Where, upon trial of murder, defendant submitted to the court a special charge- requesting that the same be submitted to the jury as peculiarly applicable to the facts in the case the same should have been given, as the court’s main charge upon this issue was not full enough. 6. —Same—Evidence—Conversation—Declaration of Third Parties. While it is permissible for the State to. introduce in evidence conversations the witnesses had with the defendant, yet such witnesses should not be permitted to testify that they told the defendant a great many things damaging to him, etc. 7. —Same—Bills of Exception — Practice on Appeal. Where the judgment was reversed and the cause remanded on other grounds, it is not necessary to pass upon the matters complained of in other bills of exception which will not again occur upon another trial. [Behearing denied April 5, 1916. — Beporter.]
79 Tex. Crim. 341Simmons v. State (1916)
The opinion states the case.
79 Tex. Crim. 343Salvador v. State (1916)
The opinion states the case.
79 Tex. Crim. 345White v. State (1916)
The opinion states the case.
79 Tex. Crim. 345Lundschien v. State (1916)
The opinion states the case.
79 Tex. Crim. 346Sanford v. State (1916)
The opinion states the case.
79 Tex. Crim. 359Carroll v. State (1916)
The opinion states the case.
79 Tex. Crim. 361Case v. State (1916)
Rape — Statement of Pacts — Stenographer’s Transcript — Question and Answer. A transcript of the evidence made out by the stenographer in question and answer form, which is not signed by the attorneys nor approved by the trial judge can not be considered on appeal.
79 Tex. Crim. 361Gomez v. State (1916)
1. — Sodomy—Indictment—Precedent. Where, upon trial of sodomy, the indictment followed approved precedent, the same was sufficient. 8. — Same—Statement of Pacts — Sufficiency of the Evidence. In the absence of a statement of facts the question of the insufficiency of the evidence can not be considered on appeal. 3. — Same—V erdiet — Severance. Where a severance had been obtained and defendant alone was on trial the contention that the verdict did not show which one of the defendants was found guilty, is untenable.
79 Tex. Crim. 361Gomez v. State (1916)Affirmed
Appeal from District Court, Austin County ; Frank S. Roberts, Judge. A. Gomez was convicted of sodomy, and he appeals.
79 Tex. Crim. 362Kelley v. State (1916)
1. — Bobbery—Evidence—Introducing Testimony — Plea of Guilty — Practice — Other Offenses. Where, upon trial of robbery, the defendant entered a plea of guilty, this would not prevent the State from introducing other evidence to show the method of the robbery so the jury could determine the punishment to be assessed, neither was there error in showing that defendant resisted arrest and sought to escape, etc., however, it was error to admit testimony of a prior attempt to rob different parties at a different place and time. 2. —Same—Buie Stated — Other Offenses — Evidence. Where, upon trial of robbery with firearms, etc., the defendant pleaded guilty, and there was no question in the case as to the identity of the defendant nor of his intent to commit the robbery charged in the indictment, it was error to admit testimony of a prior attempted robbery by the use of firearms on the same night of the robbery and that when the parties attempted to escape defendant and his companions shot at them, even though said testimony was admitted upon the theory that the State has a right to show that defendant intended to kill the injured party if they resisted, etc., as in the instant case no resistance or attempt to escape was shown or that the defendant attempted to shoot or kill. Prendergast, Presiding Judge, dissenting. 3. —Same—Buie Stated — Other Offenses. Upon trial of robbery with firearms, etc., where the defendant pleaded guilty and was given a sentence of ninety-nine years in the penitentiary, it was reversible error to admit in evidence testimony as to an attempted robbery by the same parties during the night of the instant robbery; the same being a different crime committed at a different time and place, and not a part of the res gestae of the transaction for which the defendant was being tried; the identity of defendant not being questioned and his intent to commit the robbery and the fact that he did rob the alleged injured party being proved and admitted, and no -evidence that he was the character of man who would commit murder, if necessary to accomplish the robbery, was admissible when he had not put his reputation in issue. Prendergast, Presiding Judge, dissenting. 4. —Same—Evidence—General Beputation. Upon another trial the State should not seek to prove that defendant had theretofore been confined in the penitentiary, unless he should testify or put his reputation in issue. 5. —Same—Argument of Counsel. Upon another trial the prosecuting officer will confine his remarks to the evidence adduced upon trial and the legitimate deductions therefrom, and will not discuss matters de hors the record. -
79 Tex. Crim. 369Robison v. State (1916)
1. — Carrying Pistol — Sufficiency of the Evidence. . Where, upon trial of unlawfully carrying a pistol, the evidence, although conflicting, sustained the conviction, there was no reversible error. 8. — Evidence—Immaterial Testimony. Upon trial of unlawfully carrying a pistol, there was no error in sustaining an objection by the State to certain testimony why defendant was at the place of a negro function if he had a pistol, unless he had the right to carry it under some statutory exception, which was not claimed; this was not of sufficient importance, even if the court was in error, to require a reversal. ■ S. — Same—Evidence—Competent Witness — Buie Stated. The fact that a witness stands charged with a felony under an indictment does not render him incompetent to testify ás a witness for the State, even when he is indicted for the same offense as the party on trial. 4. — Same—"Verdict—Form of. Where, upon trial of unlawfully carrying a pistol, the verdict was as follows: “We, the jury, find the defendant guilty and assess 'his punishment at one hundred dollars. (Signed) J. M. Waddell, Foreman,” the same was sufficient and responded to the information and the charge of the court.
79 Tex. Crim. 371Dawson v. State (1916)
1. — Swindling—Information—V ariance. Where there was a variance between the complaint and the information alleging the offense of swindling under article 1422, Penal Code, subdivision 4, new pleadings should be filed which are in consonance with each other as to the averments therein. 2. —Variance—Insufficiency of the Evidence. Where, upon trial of swindling under article 1422, Penal Code, subdivision 4, there was a variance between the allegation in the information and the evidence, the same is reversible error. 3. —Same—Charge of Court. Where, upon trial of swindling under article 1422, Penal Code, subdivision 4. it appeared by the evidence that defendant was an endorser of the alleged check and responsible for its payment, and it was not shown that he was in a conspiracy to defraud anyone, his requested charge presenting his theory of defense that he offered to pay said cheek, etc., and his honesty in the transaction should have been submitted to the jury. 4. — Same—Endorser.—Insufficiency of the Evidence — Statutes Construed. While it is not intended to here say that an endorser might not be responsible criminally under this statute, article 1422, Penal Code, subdivision 4, yet the State must show that defendant was in some way criminally connected with the proposition i¿o defraud, and that he acted from that standpoint, and where the evidence does not show this sufficiently, the conviction was not sustained, and the judgment must be reversed and the cause remanded.
79 Tex. Crim. 371Wright v. State (1916)
Tried below before the Hon. M. H. Garnett. Appeal from a conviction of robbery; penalty, five years imprisonment in the penitentiary.
79 Tex. Crim. 376Epps v. State (1916)
The opinion states the case.
79 Tex. Crim. 378Ex Parte Ellison (1916)
Habeas Corbus — Bail. Where it appeared upon, appeal that the lower court did not err in refusing to grant the relator bail on the evidence adduced upon habeas corpus hearing, the judgment must be affirmed.
79 Tex. Crim. 379Hare v. State (1916)
The opinion states the case.
79 Tex. Crim. 380Bennett v. State (1916)
The opinion states the case.
79 Tex. Crim. 382Lowery v. State (1916)
The opinion states the case.
79 Tex. Crim. 390Turner v. State (1916)Affirmed
1. —Assault to Murder — Statement of Facts — Rehearing. , Where the statement of facts appeared not to he signed and approved by the trial judge and the judgment was thereupon affirmed without passing on the merit, but the cleric of the lower court by inadvertence did not send up the statement of facts, as approved by the judge, but did so after the affirmance, the case will be heard on its merits. 2. —Same—Charge of Court — Aggravated Assault — Arrest—Officers—Warrant. Where, upon trial of assault to murder, the defendant claimed that he resisted an unlawful arrest, but the evidence showed that there was no attempt by the party injured to make an arrest or that the issue of aggravated assault was raised, there was no error in the court’s failure to submit charges on these matters, and it was immaterial whether the warrant of arrest was legally issued; the court submitting the issue of self-defense, which alone was raised by the evidence.
79 Tex. Crim. 393Martin v. State (1916)
The opinion states the case.
79 Tex. Crim. 395Barnes v. State (1916)
The opinion states the case.
79 Tex. Crim. 401Barnes v. State (1916)
The opinion states the case.
79 Tex. Crim. 402Kelley v. State (1916)
1. —Assault to Murder — Aggravated Assault — Charge of Court. Where, upon trial of assault with intent to murder, the evidence did not raise the issue of adequate cause and showed that the defendant shot twice with a pistol-at the prosecuting witness at close range, there was no error in the court’s refusal to submit the issue of aggravated assault. Following Hatton v. State, 31 Texas Crim. Rep. 586, 2. —Same—Rudely Displaying Pistol — Charge of Court — Plea of Guilty. Where, upon trial =of assault with intent to murder, the evidence showed, that the defendant fired at prosecuting witness with a pistol at close range and was convicted of said offense on a plea of guilty, a complaint that the court should have submitted a charge on the issue of rudely displaying a pistol and disturbing the peace, is untenable, and there was no reversible error in the court’s refusal to submit a requested charge thereon. 3. — Same—Election by State — Buie Stated. The rule is well settled that where au election is authorized it is the duty of the State or the court for the State to make that election, and this can not be done by the defendant in a special charge or exceptions to the testimony. Following Bradshaw v. State, 32 Texas Crim. Rep., 381, and other cases. But in the instant case the State could not be required to elect. [Beheading denied May 10, 1916. — Beporter.]
79 Tex. Crim. 405Jones v. State (1916)
Murder — Newly Discovered Testimony — Presumption. Where appellant in his motion for new trial claimed newly discovered testimony, and it appeared from the record that the trial judge heard testimony thereon and overruled the motion, this court must presume, in the absence of said testimony, that the court ruled correctly. Following Ethridge v. State, 74 Texas Crim. Bep., 635; hut even if appellant’s motion and the facts disclosed thereby by the affidavits attached thereto is considered on appeal, there is no reversible error. Following Gray v. State, 65 Texas Crim. Bep., 204, and other cases [Behearing denied May 10. 1916. — Beporter.]
79 Tex. Crim. 407Bell v. State (1916)
1. —Scire Facias — Bail Bond — Certiorari—Transcript. Upon trial of a scire facias case, where this court on appeal issued a certiorari requiring the clerk below to send up an additional transcript with the correct caption to the case, the organization of the grand jury, the filing of the indictment, etc., with which the clerk complied, the same will not be stricken out on motion of appellant. Following General Bonding Go. v. State, 73 Texas Crim. Rep., 649. 2. —Same—Affidavit—Practice on Appeal. Accompanying affidavits and original documents not filed in the lower court will not be considered on appeal. 3. —Same—Bail Bond — Statutes Construed — Forfeiture—Procedure. In later years, the whole trend of legislation, as well as the decisions of this court and the Supreme Court is to get away from extremely technical and unimportant matters in cases of forfeitures of bail bonds, and to get to the real merits and not decide the case on purely immaterial technical points. Following Hodges v. State, 73 Texas Crim. Rep., 634, and other cases. 4. —Same—Judgment Nisi — Final Judgment — Defective Indictment. Appellant’s contention that the judgment nisi and final judgment against him were void because the indictment in the case in which he gave bail bond was fatally defective can not be maintained. Following Cox v. State, 25 Texas, 405, and other cases. 5. —Same—Surety—Citation—Statutes Construed. Appellant’s contention that no judgment on his bail bond could be taken against him, because none was taken against his sureties at'the same time, the case being dismissed against them; that he was not served with citation, etc., can not be maintained, as the statute specifically so provides. 6. —Same—Scire Facias — Judgment—Indictment—Void Judgment. Where defendant appealed from a judgment by default rendered against him in a scire facias case, and it appeared from the record that the case against the sureties was dismissed and judgment entered against him by default when for the first time he filed his motion for new trial, and among other things alleged that the court had granted his motion to quash the indictment in the case against him, and that this was admitted by the State’s demurrer to said motion. Held, that the judgment is void and must be reversed and remanded; although the defendant had failed to take any notice of the judgment nisi and had not pleaded thereto whatever, and that the case went over from term to term until final judgment by default was rendered against him. Prendergast, Presiding Judge, dissenting. [Rehearing denied May 31, 1916. — Reporter.]
79 Tex. Crim. 413Rose v. State (1916)
1. — Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence although conflicting was sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error. 8. — Same—Principals—Charge of Court — Question of Fact. Where, upon trial of murder, the State contended that defendant was one of the principals under any contingency, and that either one Otto Manus or another person, whom the witnesses designated and called “Yellow Boy," was the other principal, and it was also an issue whether Otto Manus or the Yellow Boy was one and the same person, or different persons, although the defense contended that they were one and the same person, and the court throughout his whole charge submitted the issue to the jury on the theory that Yellow Boy might be a different person from Otto Manus, there was no reversible error. Davidson, Judge, dissenting. 3. — Same—Charge of Court — Facts for Jury — Alibi—Charge of' Court. Where, upon trial of murder, the defendant introduced testimony of an alibi both as to himself and one of the principals, who fired the fatal shot with defendant’s pistol, which the latter handed to him and told him to shoot deceased, and the State controverted the alibi both of defendant and his principals, and especially by Otto Manus by introducing testimony that both were present at the killing, the matter was a question of fact for the jury and the court so charged. 4. —Same—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence did not raise .the issue of manslaughter, there was no error in the court’s action in refusing to submit this issue. Davidson, Judge, dissenting. 5. —Same—Rule Stated — Definition of Manslaughter. Two things at least are necessary to raise the issue of manslaughter; that is, adequate cause, and passion aroused thereby to such an extent as to render the slayer incapable of cool reflection, and an assault and battery so slight as to show no intention to inflict pain or injury is not adequate cause. 6. —Same—Case Stated — No Adequate Cause. Where, upon trial of murder, the evidence showed that there was no indication that the prosecutrix stepping on the foot of one of defendant’s principals caused him any such pain as the statute indicates would raise manslaughter, and if there was any assault and battery, it was so slight as to show no intention to inflict pain or injury and could be nothing more than an insult, there was no error in the court’s refusal to submit the issue of manslaughter. Davidson, Judge, dissenting. 7. —Same—Alibi—Charge of Court — Co-principal. Where, upon trial of murder, the court gave a direct charge on alibi as to the defendant, there was no error in the court’s refusal to submit a requested charge, applying the question of alibi both to the defendant and his co-principal, Otto Manus, because thereby the court would have ignored all testimony tending to show that the person who did the shooting was some other person than said Otto Manus, and such a charge would have been misleading. 8. —Same—Principals—Charge of Court. Where, upon trial of murder the evidence showed that the defendant’s co-principal who killed the deceased was Otto Manus or probably a different person called “Yellow Boy,” and the defendant objected to the court’s charge on principals which was applicable to this state of facts, and the evidence also showed that the defendant handed his co-principal, whoever he was, a pistol and told him to shoot the deceased, which would make the defendant a principal, it was immaterial whether his co-principal was Otto Manus or any other person, and there was no reversible error. Davidson, Judge, dissenting. 0. — Same—Self-defense—Charge of Court. Where, upon trial of murder, it was doubtful whether the testimony raised the issue of self-defense, but the court nevertheless charged on self-defense in defendant’s favor to which there seemed to be no objection, there was no rever-sible error. 10. —Same—Manslaughter—Suspended Sentence. . Where, upon trial of murder, the issue of manslaughter was not in the case, the court did not err in refusing to submit a suspension of sentence in the event he was convicted of manslaughter. 11. —Same—Evidence—General Reputation. Where, upon trial of murder, the court fully permitted all the testimony as to the general reputation of the defendant who was alone upon trial, there was no error in excluding testimony as to the general reputation of his co-principal who did the actual shooting. 12. —Same—Continuance—Cumulative Testimony — Subsequent Application. Where defendant filed his second or subsequent application for continuance for alleged absent testimony, which was clearly cumulative, there was no error in overruling the application. Following Attaway v. State, 31 Texas Crim. Rep., 475, and other eases. 13. —Same—Jury and Jury Law — Fair and Impartial Jury — Special Venire. Where, upon .trial of murder, many of the regular veniremen were absent, some of whom had been excused, and the court issued an attachment for the absent veniremen, some of whom were brought in and passed upon, but only four jurors were selected therefrom, and the court refused to postpone the trial until all the attachments for absent regular veniremen were returned and they were brought in, and ordered defendant to proceed with the organization of the jury from the talesmen who had been summoned, and defendant did not exhaust his challenges, and the record did not show that any objectionable juror was selected, there was no reversible error. Davidson, Judge, dissenting. 14. —Same—Jury and Jury Law — Attachment—Talesmen—Rule Stated. The statute on the subject of the organization of the jury from a special venire is directory and not mandatory, and where an attachment has issued for an absent juror, it is not error not to delay the trial until the return of the attachment, and to proceed with the trial and fill up the jury from talesmen. Following Murray v. State, 21 Texas Crim. App., 466; Deon v. State, 37 Texas. Crim. Rep., 506, and other cases. 15. —Same—Reasonable Delay — Special Venire — Discretion of Court. It has been repeatedly held that the question of what is a reasonable delay to procure absent veniremen is left largely to the discretion of the trial judge, and where, upon trial of murder, it appeared from the record on appeal that the time the trial judge delayed waiting for the return of the attachment for the. absent jurors was reasonable, there was no reversible error. Following Jones v„ State, 31 Texas Crim. Rep., 177, and other cases.
79 Tex. Crim. 426Short v. State (1916)
Appeál from the District Court of Jones. Tried below before the Honorable John B. Thomas, judge. Appeal from a conviction for murder; penalty, imprisonment in the penitentiary for life. The opinion states the case.
79 Tex. Crim. 436Ex Parte Collins (1916)
Habeas Corpus — Carrying Pistol — Special Term of County Court. Where defendant wq.s convicted of unlawfully carrying a pistol and was placed upon the public road to work out Ms fine, and thereupon sued out a writ of habeas corpus asking that he be discharged on the ground that he had been convicted at a term of court unauthorized by law, and it appeared from the record tktffc the county judge called a special term of the county court at which defendant entered the plea of guilty. Held, that while Article 583, Code Criminal Procedure, providing for the call of special term is unconstitutional, yet relator is not entitled to a discharge and must be held by virtue of the warrant of arrest issued on the indictment. Poliowing Ex parte Cole, 51 Texas Crim. Rep., 166, and other cases.
79 Tex. Crim. 437Sorrell v. State (1916)
1. — Murder—Continuance—Motion for Hew Trial — Statement of Facts — ■ Practice on Appeal — Presumption. Where, upon appeal from a conviction of murder, the record disclosed that the court below heard evidence both on the application for continuance and the motion for new trial based thereon, but this evidence was not disclosed by the record, it must be presumed by this court that the evidence heard in the court below clearly justified the action of the court in overruling said application and motion, and that in the absence of a proper bill of exceptions or statement of facts of the evidence introduced and filed during term time, there was no reversible error. Following Black v. State, 41 Texas Crim. Rep., 185, and other cases. ¡3. — Same—Continuance—Motion for Hew Trial — Practice in District Court. But even if this court considers the defendant’s bill of exceptions not filed in term time but nearly two months after the term of the court had adjourned; still as qualified by the court, by which the defendant is bound, there was no merit either in the application for continuance or the motion for the trial based thereon; as the same showed a want of diligence; that the absent witness was a transient person; that the testimony claimed was not probably true; that the witness would not have testified as claimed, and for other grounds. B. — Same—Continuance—Motion for Mew Trial — Rule Stated — Discretion, of Court. Ho application for a continuance shall be granted as a matter of right, and the truth as well as the merits thereof and its sufficiency is addressed to the sound discretion of the court; neither shall a motion for a new trial be granted after an application for a continuance is overruled, unless the testimony of the absent witness is material and probably true, and this is left to the sound discretion of the court. 4. —Same—Continuance—Rule Stated — Diligence. The law requires a rigid compliance with its exact terms prescribed for an application for continuance, and if there be a lack of diligence, apparent from the application or otherwise, its mandate is inexorable and the trial must proceed. Following Skipworth v. State, 8 Texas Crim. App., 135. 5. —Same—Rule Stated — 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, and the State is not required to show a want of diligence in opposition of a continuance. Following Walker v. State, 13 Texas Crim. App., 618. 6. —Same—Continuance—Burden on Defendant. The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance, and the burden is upon him or the party seeking a continuance to show himself entitled to it by definite, exact and certain averments. Following Long v. State, 17 Texas Crim App., 128. 7. —Same—Continuance—Inference—Presumption. The courts will not supply by inference and presumption allegations not contained in an application for a continuance; the application must he complete within itself, and if presumptions are indulged in, they must be decided in favor of the rulings of the court. Following Massie v. State, 30 Texas Crim. App., 64. 8. —Same—Continuance—Rule Stated — Diligence. The accused can not cease his diligence to secure his witness when the trial has begun, but he must continue it up to the very time, at least until the arguments are concluded. Following Mitchell v. State, 36 Texas Crim. Rep., 278. S. — Same—Practice on Appeal- — Motion for New Trial — Continuance. This court will not reverse the judgment of the lower court, refusing a continuance or overruling a motion for new trial thereon, unless it is made to appear by the evidence adduced thereon that the proposed absent testimony was relevant, material, and probably true. 10. —Same—Continuance—Case Stated. Where, upon trial of murder, it appeared from the record on appeal that the court below overruled defendant’s application for a continuance on the ground of lack of diligence; that even if the witness had been obtained he would -not probably have testified as claimed, and if he had it would have been untrue; that he was a transient person, and no affidavit was secured to the motion for new trial to show that the absent witness would testify as claimed by defendant, there was no error in overruling the motion for new trial. 11. —Same—Bills of Exception. Where the bills of exception to the admission of testimony, the argument of counsel and the charge of the court were so qualified as to present no error, there was no reversible error. 13i — Same—Evidence—Conversation. . Where, upon trial of murder, defendant introduced testimony of a part of a conversation which the witness had with the deceased shortly before the homicide as to threats he made against defendant, the State -on cross-examination had the right to introduce in evidence the balance of the conversation of the deceased at the time. 13. —Same—Evidence—Bill of Exceptions. Where the bills of exception were to the mere asking of some questions propounded by the State to the witnesses, to which the defendant objected, and the court sustained his objections, and the witnesses were not permitted and did not answer the questions, there was no reversible error. Following Huggins v. State, 60 Texas Crim. Rep., 214, and other cases. 14. —Same—Argument of Counsel — Rule Stated. The rules pertaining to the argument of counsel as laid down by this court are well understood, and where the bills of exception to the argument of counsel failed to show any error, and the court, moreover, charged the jury not to consider the arguments of counsel to which defendant excepted, there was no reversible error. Following Mooney v. State, 76 Texas Crim. Rep., 539, and other cases. 15. — Same—Charge of Court — Requested Charges — Provoking Difficulty. Where, upon trial of murder, the evidence raised the issue of provoking a difficulty, the court properly charged thereon, and besides the court correctly applied the law to the facts of the case, both in his main charge and defendant’s requested charges which were applicable to the facts, there was no reversible error. 16. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction, under a proper charge of the court, there was no reversible error. 17. —Same—Motion for Rehearing — Statement of Facts — Bills of Exception. Where, for the first time, the appellant in his motion for rehearing moved to strike out all the bills of exception and the statement of facts in the record on the ground that they were not approved and signed by the trial judge, and prayed for a reversal of the judgment because he was deprived of these documents without fault on his part, but it appeared from the record, the affidavits, lette'rs, etc., on file in this court that said motion was not well taken, the same is overruled, 18. —Same—Statement of Facts — Bill of Exceptions — Trial Judge — :Want of Diligence. Where it appeared from the record on appeal from a conviction of murder, that the regular judge had excused himself and a special judge had qualified and presided over all the proceedings of the trial, which consumed.some five weeks, when the court adjourned, and the presiding judge became ill and some six weeks thereafter died; that defendant’s attorneys did not use the proper diligence in getting the bills of exceptions and statement of facts approved by the judge who tried the case, or to prove up such bills by bystanders, or use proper diligence in getting the regular judge to take proper action in the premises, the motion for rehearing must be overruled. 19. —Same—Statement of Facts — Bill of Exceptions — Motion for Rehearing — Signature. Where the judge who tried the case became ill after adjournment of the court, but was at times during his illness capable of transacting his business, and during the time of his illness consented that the clerk of the court sign the judge’s name to the statement of facts and bills of exception, which was done, but soon thereafter the trial judge became worse and died, and said statement of facts and bills of exception were filed by defendant’s attorneys, and considered by this court iu affirming the judgment, and it appeared from appellant’s motion for rehearing that the attorneys could have obtained either from the judge who tried the case as special judge, or from the regular judge of the district, a properly signed statement of facts and hills of exception, by using proper diligence. Held, that the question as to whether the clerk of the court could sign the judge’s name to these documents, under the circumstances, need not he decided and no opinion is given thereon. 20. —Same—Attorney and Client — Statement of Facts — Bills of Exception. Where, upon trial of murder, defendant had a number of attorneys to represent him, and it appeared that after trial the preparation of the bills of exception and the agreement to the statement of facts were left to one of the attorneys and one of his law partners, who attended to the whole matter for the defendant and his attorneys, all were bound thereby, and the defendant and his other attorneys can not claim a want of personal knowledge as to these matters. 21. —Same—Trial Judge — Successor—Bills of Exception — Statement of Facts — Mandamus—Estoppel. Ordinarily, the trial judge, whether special or regular, when alive and mentally and physically able to act, must sign and approve bills of exception and statements of fact arising during the trial, and this even after his time of office expires; but the defendant and his attorneys must use all diligence necessary to procure these documents; and where the trial judge died some six weeks after the adjournment of the court, his successor had the power and it would have been his duty upon defendant’s application or his attorneys to have passed upon said bills of exception and statement of facts, and he could have been compelled by mandamus to do so. However, the defendant and his attorneys in the instant case failed to use proper diligence either to obtain the approval of the trial judge or his successor, and therefore can not complain of the action of this court in passing upon these documents although not regularly signed and approved by the trial judge or his successor, and the motion for rehearing to reverse the judgment must be denied, whether these documents are considered or stricken from the record. 22. —Same—Decisions Hot in Conflict — Practice in District Court — Cases Distinguished. The decision of this court in the instant case is in no way in conflict with the following eases on the question of approving statements of fact and bills of exception: Richardson v. State, 71 Texas Crim. Rep., 111; Porter v. State, 72 Texas Crim. Rep., 71; Allen v. State, 72 Texas Crim. Rep., 277; Kaufman v. State, 72 Texas Crim. Rep., 455; McGee r. State, 182 S. W. Rep., 309.
79 Tex. Crim. 454Westergreen v. State (1916)
The opinion states the case.
79 Tex. Crim. 455McDaniel v. State (1916)
The opinion states the case.
79 Tex. Crim. 460Major v. State (1916)
1. —Manslaughter—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no reversible error. 2. —Same—Argument of Counsel — Bill of Exceptions. Where the bill of exceptions showed the refusal of the court to submit a requested charge to disregard a certain argument of State’s counsel that it was on the ground that said argument was in reply to the arguments of defendant’s attorneys, there was no reversible error.
79 Tex. Crim. 460Hernandez v. State (1916)
1. —Incest—Statement of Facts — Practice on Appeal — Bill of Exceptions. In the absence of a statement of facts an objection to the court’s charge can not be considered; besides the bill of exceptions did not point out the reason why the refused charges should have'been given. 2. —Same—Bill of Exceptions — Argument of Counsel. Where the bill of exceptions to the argument of the district attorney was not verified by the trial judge, the same can not be considered on appeal.
79 Tex. Crim. 461Ellis v. State (1916)
1. —Murder—Continuance—Transient Person. Where one of the witnesses mentioned in the application for continuance testified during the trial, and the facts expected to be shown by another witness are not stated in the application, and that of still another witness was of an - impeaching character, and the fourth witness was a transient person who could not be located, and it was hardly probable that his testimony would be obtained upon another trial, there was no error in overruling the motion for continuance. Following Hall v. State, recently decided. 2. —Same—Verdict—Excessive Punishment. Where, upon trial of murder and a conviction thereof assessing defendant's punishment at thirty years imprisonment in the penitentiary, the said verdict was justified by the evidence, the contention that the verdict was excessive is not well taken. 3. — Same—Charge of Court. Where no exceptions were made to the charge of the court and the court also submitted the only requested charge, there was no reversible error on that ground.
79 Tex. Crim. 463Hall v. State (1916)
1. —Murder—Continuance—Immateriality, of Testimony. Where the application for continuance showed that the alleged absent testimony would not have been admissible if the witness had been in attendance on the court, there was no error in overruling the same. 2. —Same—Continuance—Want of Diligence. Where the application for continuance showed' that the absent witness was a transient person going from place to place, and that he could not be located and no useful purpose would have been accomplished by the granting of a new trial, there was no error in overruling the motion for continuance. Following Smith v. State, 66 Texas Crim. Rep., 593. 3. —Same—Motion for New Trial — Attorney and Client. Where the affidavit attached to the motion for new trial was sworn to before one of the attorneys of defendant, a motion to strike out should be sustained. Following Maples v. State, 60 Texas Crim. Rep., 169. However, there is no merit in the motion if considered. 4. —Same—Manslaughter—Charge of Court. Where, upon trial of murder, the court properly instructed upon manslaughter generally, and also submitted Article 1131, Penal Code, as to adequate cause besides fully instructing on self-defense, etc., there was no reversible error. 5. — Same—Limiting Testimony — Charge of Court. Where, upon trial of murder the court submitted defendant’s requested charge upon limiting the testimony of a certain witness, there was no reversible error. [Behearing denied May 3, 1916. — Beporter.]
79 Tex. Crim. 466Blackburn v. State (1916)
1. — Pursuing Occupation — Intoxicating Liquors — Agency. Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, the evidence showed that the defendant bought the whisky at one price and sold it at a profit to the prosecuting witness, the same constituted a sale in law, and a conviction is sustained. Hollowing Bogle v. State, 42 Texas Crim. Bep., 391, and the question of agency is not involved. 8. — Same—Place of Sale — Definition of Sale — Hule Stated. The place of sale is to be determined by actual delivery and parting of the seller with the property in the liquor; whenever this occurs the sale is made. Following Weldon v. State, 36 Texas Crim. Rep., 34, and other cases. 3. — Same—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, the evidence sustained a conviction, there was no reversible error. [Behearing denied Hay 10,. 1916. — Beporter.]
79 Tex. Crim. 468Smith v. State (1916)
1. — Murder—Manslaughter—Defense of Person and Property — Charge of Court. Where, upon trial of murder and a conviction for manslaughter, the testimony did not raise the issue of the right to kill in defense of property, and much less defense of the person of defendant, the contention that the court should have submitted a charge on defense of defendant’s person was untenable, -and there was no reversible error, the court having submitted a charge on defense of property. 8. — Same—Charge of Court — Murder. Where defendant was convicted of manslaughter, his objections to the court’s charge on the issue of murder need not be considered on appeal. 3. —Same—Manslaughter—Charge of Court — Burden of Proof. Where, upon trial of murder, the court’s charge on manslaughter was not subject to the criticism in defendant’s bill of exceptions in that it did not reverse the rule on the burden of proof, there was no reversible error. Following Hendricks v. State, 69 Texas Crim. Rep., 209. 4. —Same—Charge of Court — Defense of Property. Where, upon trial of murder, the court submitted a requested charge by the state to the effect that if the jury found beyond a reasonable doubt, etc., that if defendant killed deceased in the execution of a previously formed intent, etc., and not in defense of his property, etc., such killing would not be justifiable, there was no reversible error as the evidence raised such an issue, 5. —Same—Requested Charges. Upon trial of murder, there was no error in the court’s refusal to submit defendant’s requested charges upon issues which were not raised by the evidence, or upon issues which the court’s main charge had submitted. [Behearing denied May 3, 1916. — Beporter.]
79 Tex. Crim. 474Scott v. State (1916)
1. —Assault to Murder — Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence sustained a conviction under a proper charge of the court, there was no reversible error. " 2. —Same—Attachment—Practice in District Court. Where the application for an attachment of absent witnesses was merely oral, and the bill of exceptions failed to show any legal grounds why the attachment should issue, there was no error in the court’s refusal to order such attachment. 3. —Same—Continuance—Second Application — Want of Diligence. Where the alleged absent testimony, in the light of the record, was probably not true, and no affidavit was attached to the motion for new trial, and besides there was a want of diligence to procure the absent witnesses, there was no error in overruling the motion for continuance. Following Giles v. State, 66 Texas Crim. Rep., 638, and other cases. 4. —Same—Evidence—Credibility of Witness. The court committed no error in his refusal to permit defendant, who was tried for assault to murder, to show that the prosecutrix was a woman of loose character, etc., to attack her credibility as a witness. Neither did the court err in refusing to permit him to prove by the sheriff t-hat if he had an attachment he could have secured the absent witnesses, as this was not a question for the jury. 5. —Same—Suspended Sentence — Charge of Court. Where the penalty assessed against the defendant was ten years imprisonment in the penitentiary, the jury could not have recommended a suspension of sentence; besides the charge of the court was not objectionable. 6. —Same—Argument of Counsel. Where the argument of the district attorney was based upon the evidence in the case, there was no 'error. 7. —Same—Punishment—Rule Stated. -It has always been held by this court that the" amount of the punishment fixed by the jury, if within the time prescribed by law, is binding on this court.
79 Tex. Crim. 478Thompson v. State (1916)
1. —Murder—Evidence—Bes Gestae — Dying Declarations. Upon trial of murder, the State was permitted to introduce the res gestae declarations and dying declarations of the deceased made a short time after the fatal injury, there was no reversible error, and the question as to whether the deceased was conscious at the time would not render the testimony inadmissible, but would only go to its weight. 2. —Same—Evidence—Impeaching Witness. Upon trial of murder, where defendant introduced a witness who testified that in her opinion the declarations of deceased were made when she was unconscious, there was no error to impeach her testimony by showing that she had made different statements prior thereto. 3. —Same—Evidence—Motive. Upon trial of murder, there was no error in admitting testimony of a previous quarrel between deceased and the defendant and what defendant said, to show motive for the crime. 4. —Same—Continuance—Imputing Crime to Another. Upon trial of murder, there was no error in overruling defendant’s application for a continuance, as it appeared from its face that the parties who were imputed to have committed the crime had no opportunity to commit the offense. 5. —Same—Circumstantial Evidence — Charge of Court. Where, upon trial of murder, the case depended upon direct and positive testimony for a conviction, there was no error in the court’s failure to charge on circumstantial evidence. 6. —Same—Bes Gestae — Declarations of Deceased. Where, upon trial of murder, the statements made by the deceased were made a short time after the homicide, when her suffering excluded the idea of fabrication, there was no error in admitting the same as res gestae. Following Boothe v. State, 4 Texas Crim. App., 208, and other cases. 7. —Same—Evidence—Bes Gestae — Dying Declarations — Questions and Answers. Where, upon trial of murder, the court admitted testimony as to declarations of the deceased who was then in a dying condition and who stated that the defendant assaulted her, and this occurred shortly thereafter, there was no reversible error, although the statements were made in answer to questions which were not calculated to lead the deceased to make any particular statement. Following Hunter v. State, 59 Texas Crim. Rep., 439, and other cases. 8. —Same—Evidence—Conduct and Declarations of the Deceased. Upon trial of murder, there was no error in permitting the witness to testify that the deceased was conscious when he shaved her head, describing her conduct, and which was introductory to her dying declaration that defendant ■hit her with a hammer. 9. —Same—Evidence—Predicate—Impeachment—Bill of Exceptions. Where appellant contended that there was no predicate laid to impeach one of his witnesses, but the bill of exceptions did not show that any such objection was urged in the trial court, it comes too late. 10. —Same—Evidence—Qualifying Bill of Exceptions — Threats. Where defendant permitted his bill of exceptions to be qualified, with reference to the admission of testimony as to defendant’s threats against the deceased, there was no reversible error. Following Blain v. State, 34 Texas Crim. Rep., 448. 11. —Same—Opinion of Witness. Where the witness, in language could not portray what she saw and observed, there was no error to permit her to express an opinion that from the conduct of the deceased at the time she was conscious when she declared that the defendant assaulted her. 12. —Same—Sufficiency of the Evidence — Death Penalty. Where, upon trial of murder, the evidence was sufficient to sustain the death penalty by showing a wanton and cruel murder, there was no reversible error.
79 Tex. Crim. 483Hazelwood v. State (1916)
The opinion states the case.
79 Tex. Crim. 486Kirven v. State (1916)
murder — Indeterminate Sentence Law. Where, upon trial of murder, the verdict assessed the punishment at ten ■years in the penitentiary and the sentence was for only two years, the latter will, be reformed to conform to the indeterminate sentence law.
79 Tex. Crim. 487Arbetter v. State (1916)
The opinion states the case.
79 Tex. Crim. 490Hopkins v. State (1916)
The opinion states the case.
79 Tex. Crim. 490Bowen v. State (1916)
The opinion states the case.
79 Tex. Crim. 492Simmons v. State (1916)
1. —Rape—Election by State — Other Acts of Sexual Intercourse. Upon trial of rape by defendant upon his granddaughter, there was no error m admitting in evidence other acts of sexual intercourse occurring subsequently to the date elected by the State; the court instructing the jury that they could not convict the defendant for other acts of sexual intercourse than the one selected by the State, and that they could only consider these other acts of intercourse in passing on the question as to whether an act of sexual intercourse took place on the date on which the State had selected to prosecute, and the court correctly refused a requested charge to instruct the jury not to consider for any purpose these subsequent acts of intercourse. Following Battles v. State, 63 Texas Crim. Rep., 147, and other cases. 2. —Argument of Counsel. Upon trial of rape, there was no error in the argument of State’s counsel, although he did not literally repeat the testimony of the witness in discussing their testimony. 3. —Same—Evidence—Habits—Immaterial Testimony. Upon trial of rape, there was no error in not admitting testimony by a, physician that from his knowledge and experience, in dealing with young girls, it was always the natural desire and impulse of a girl to deny the guilt of her lover and charge some other man with having been the cause of her downfall.. This was simply a question for argument. 4. —Same—Opinion of Juror — Challenge for Cause — Statement of Facts. Where the defendant in his motion for new trial complained that one of the jurors who tried the defendant was incompetent by having expressed an opinion,, but failed to file the statement of facts of the testimony adduced on said question during court, the same could not be considered on appeal; however, when considered there was no reversible error. 5. —Same—Statement of Facts — Questions and Answers. Where the evidence was not reduced to narrative form in the statement of facts,'but appeared in question and answer form, the same can not be considered -on appeal, even if it had been filed in time. Following Kemper v. State, 57 Texas Crim. Rep., 355, and other cases. 6. —Same—Misconduct of Jury — Affidavits. Where defendant alleged that the jury heard other evidence than that adduced on the witness stand, but no affidavit was attached to the motion for a. new trial, the same can not be considered on appeal. 7. —Same—Absence of Defendant — Practice on Appeal. Where defendant complained that the defendant was absent during part of the proceedings had on his trial, the matter can not be considered on appeal in the absence of a bill of exceptions reserved, at the time; besides, no such absence appeared in the record. 8. —Same—Motion for Rehearing — Act of Sexual Intercourse — Election by State. Where appellant contended in his motion for rehearing that the act of sexual intercourse upon which the State elected to try him, had in fact not occurred, but the record disclosed that the date of said act of intercourse clearly appeared in the statement of facts, upon which the court below based his charge, there was no reversible error.
79 Tex. Crim. 496Crutcher v. State (1916)
1. Swindling — Statement of Facts — Bills of Exception — Misdemeanor— County Court. Where the County Court allowed twenty days after adjournment in which to file bills of exception and a statement of facts and refused further time, the clerk had no authority to file these papers at a later date. Following Durham v. State, 69 Texas Crim. Rep., 71, and other cases. 2. —Same—Indictment. Where the indictment for swindling followed approved precedent, the same was sufficient. [Behearing denied June 7, 1916. — Beporter.]
79 Tex. Crim. 497Quillin v. State (1916)
The opinion states the case.
79 Tex. Crim. 508Banks v. State (1916)
1. — Local Option — Misdemeanor—Felony—Motion for New Trial. Where, upon appeal from a conviction of a misdemeanor in the County-Court, defendant’s motion for new trial was filed five days after judgment was entered, without leave of the court, and an amended motion for new trial was also filed with the clerk fourteen days after trial, there was no error in the court’s refusal to permit him to file his amended motion, which set up newly discovered evidence. 3. — Same—Motion for New Trial — Rule Stated — Statutes Construed. The law provides that a conviction of a misdemeanor case is final if no-motion for new trial is filed within two days, while in felony cases, the court may allow the same to be made at any time before adjournment for good cause shown, and it is immaterial whether the statute is mandatory or directory. Had an original motion for new trial been filed witbin two days after conviction, the lower court could have permitted the same to have been amended at a later day, but as no motion of any character was filed until five days after conviction, there was no error in the court’s action in refusing to hear it. [Behearing denied June 14, 1916. — Beporter.]
79 Tex. Crim. 510Baker v. State (1916)
The opinion states the case.
79 Tex. Crim. 523Gilbert v. State (1916)
1. — Theft From Person — Corroboration—Accomplice. Where, upon trial of theft from the person, the evidence showed that the alleged stolen money was positively identified and the defendant was found in possession of the property purchased therewith, and other corroborating circumstances of the testimony of the accomplice the conviction was sustained. —Same—Principal—Charge of Court — Harmless Error. Where, upon trial of theft from the person, the court in his charge on principals instructed the jury that parties were principals whether in point of fact all were actually, bodily present, etc., yet the evidence showed that the defendant was bodily present, acting together with the accomplice while the offense was committed; said charge of the court was harmless error.
79 Tex. Crim. 525Pippins v. State (1916)
Wife and Child Desertion — Sufficiency of the Evidence. Where, upon trial of wilfully deserting wife and minor children, etc., the evidence sustained the conviction, there was no reversible error. [Behearing denied June 21, 1916. — Beporter.]
79 Tex. Crim. 526Powell v. State (1916)
The opinion states the case.
79 Tex. Crim. 529Holland v. State (1916)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence was sufficient to. sustain the conviction, there was no reversible error. 2. —Same—Suspended Sentence — Evidence—Charge of Court — Practice. Under the statute, where defendant files a sworn plea seeking a suspension of his sentence in the event of conviction, no presumption is indulged in his favor that he has not so committed a felony, but he must prove it and if there is no proof of this fact, then the court should not submit the issue of suspended sentence to the jury, and where this was the ease, there was no reversible error. 3. —Same—Suspended Sentence — Evidence—General Reputation — Hearsay. Where the defendant claims suspended sentence, the State can introduce testimony not only as to his general reputation hut can also prove specific instances of crimes, misdemeanors, conduct, and habits, although he has never before been convicted of a felony. However, the court should not permit purely hearsay testimony. 4. —Same—Suspended Sentence — Rule Stated. Where defendant has filed his plea for suspension of sentence, the State is not hound to wait until he himself offers proof that he has committed no felony and of his good reputation, habits, etc., but may introduce such proof at the time of proving the offense itself; unless the plea is withdrawn. 5. —Same—General Reputation — Sufficiency of the Evidence. Where, upon trial of burglary, the offense was clearly proved by the State, and defendant’s general reputation as a peaceable, law-abiding man was shown to be bad, and defendant offered no proof in support of his claim and plea for a suspended sentence that he had never before .been convicted of a felony, the court did not err in not submitting this issue, and there was no reversible error. 6. —Same—Suspended Sentence — Hearsay—Harmless Error. Where, upen trial of burglary, the defendant filed a sworn plea for a suspended sentence in the event of conviction, but offered no proof that he had never before been convicted of a felony, and the State anticipating such evidence introduced testimony as to the defendant’s bad general reputation for law and peace, and was permitted also to introduce testimony that the State’s witness had heard that defendant’s picture appeared in the rogue’s gallery but had no knowledge of this himself except by hearsay, the error of admitting this hearsay testimony was harmless, in view of the fact that the defendant received the lowest punishment, although clearly guilty, .and that the court submitted no charge at all on the issue of suspended sentence, but instructed the jury upon their inquiry that they had no right to pass on this question. Davidson, Judge, dissenting.
79 Tex. Crim. 538Wilson v. State (1916)
1. —Murder—Manslaughter—Charge of Court. . Where, upon trial of murder, the court submitted in his charge only murder and self-defense, hut the evidence raised the issue of manslaughter upon which the court refused a requested written charge, the same was reversible error. Prendergast, Presiding Judge, dissenting. 2. —Same—Rule Stated — Manslaughter. It is the well settled rule in Texas that if there is evidence, however weak or inconclusive it- may seem to the court, if it tends to prove facts from which the jury may deduce a, finding of manslaughter, it is- error to fail to charge that issue. 3. —Same—Newly Discovered Evidence. Where the alleged newly discovered evidence was material, this should cause a reversal. However, the same may be obtained at another trial. Prendergast, Presiding Judge, dissenting.
79 Tex. Crim. 542Bryson v. State (1916)
The opinion states the case.
79 Tex. Crim. 544Johnson v. State (1916)
1. — Unlawfully Carrying Pistol — Transcript—Misdemeanor. The law requires that the statement of facts must be copied in the transcript in misdemeanor cases, but in felony cases the original must be sent up to this court. However, this transcript may be corrected on proper application so that the statement of facts may be brought properly before this court. 2. — Same—Requested Charge — Traveler—Disturbing Peace. Where defendant was on trial for unlawfully carrying a pistol, a requested charge by the State that even though the jury found defendant was a traveler, yet if he disturbed the peace or engaged in any other unlawful purpose he would be guilty of unlawfully carrying a pistol, the same was reversible error, as defendant was not on trial for disturbing the peace.
79 Tex. Crim. 546Arensman v. State (1916)
1. —Arson—Requested Charges — Practice on Appeal — Bill o£ Exceptions. Where all the bills of exceptions to the refusal of defendant’s requested chargee were qualified and explained by the trial judge when he allowed them, and defendant accepted them with this action of the court, he is bound thereby. 2. —Same—Evidence—Hearsay—Conspiracy. Where, upon trial of arson, defendant objected to the testimony of a witness, who testified as to what defendant’s wife told said witness with reference to burning the alleged building, which occurred a short time before the commission of the offense, hut the testimony in the case showed that there existed between defendant and his wife a conspiracy to bum the building in question and that they were acting together in such common design, and the court in his charge instructed the jury properly limiting this testimony to the question of conspiracy, and told them that they could not consider it, unless they believed from all the evidence that there was such a conspiracy, there was no reversible error. Following Smith v. State, 46 Texas Crim. Rep., 267, and other cases. 3. —Same—Conspiracy—Husband and Wife — Rule Stated. If either the husband or wife is on trial for the completed offense., proof of the acts or declarations of either, though made in the absence of the other, is admissible against the other if done or made pending the conspiracy and in furtherance of the common design. Following Smith v. State, 48 Texas Crim. Rep., 233. 4. —Same—Evidence—Declarations of Co-conspirators — Rule Stated. When a conspiracy is shown, proof of the acts and declarations of co-conspirators .is admissible to show the common design, purpose and intent of all the conspirators, whether such acts and declarations were made before or after the formation of the conspiracy, or whether the same were made before or after the defendant on trial entered into the conspiracy. 5. —Same—Evidence—Co-conspirators—Rule Stated — Husband and Wife. Proof of what was said and done by any of the conspirators pending the conspiracy and in furtherance of the common design is admissible against the one on trial, though said or done in his absence; and this is not compelling the wife to testify against her husband. 6. —Same—Evidence—Letters—Post Cards — Husband and Wife. Where, upon trial of arson, the court admitted in evidence testimony as to the contents of a letter and postal of defendant’s wife to the witness requiring him to remove his goods from the alleged burned building; a proper predicate having been laid that the letter and postal were lost or beyond the jurisdiction of the court, there was no reversible error. 7. —Same—Evidence—Confession—Practice in District Court. Where; upon trial of arson, the court excluded certain written confessions of the defendant because they had been induced t'o be made by the promise of a suspended sentence, but afterwards admitted a certain oral confession which was made after defendant was out on bond and had consulted counsel, and was voluntarily made, there was no reversible error. 8. —Same—Argument of Counsel — Husband and Wife — Principal; Where, on trial of arson, State’s counsel alluded to the fact that the defendant had failed to introduce his wife as a witness, there was no reversible error, although she was implicated as a principal. 9. —Same—Misconduct of Jury — Defendant’s Failure to Testify. Where defendant objected to the verdict claiming misconduct -of the jury in discussing his failure to testify, and the court heard all the jurors testify on the subject and settled the question of fact against the defendant, which he was authorized to do, there was no reversible error. Following Lamb v. State, 75 Texas Crim. Rep., 301, 169 S. W. Rep., 1158. 10. —Same—Objections to Court’s Charge — Practice on Appeal. The statute requires that the objections to the court’s charge shall be made before it is read to the jury, and that such objections shall specifically point out claimed errors or omissions therein, and that it is too late to do so after the trial. However, when considered they present no reversible error. 11. —Same—Principal Offender — Indictment—Rule Stated. A principal offender may be charged directly in the indictment with the commission of the offense, although it may not have been actually committed by him, and it is never necessary to the validity of an indictment to allege the acts which make him a principal. 18. — Same—Charge .of Court — Entire Charge Considered — Rule Stated. It is elementary that the whole charge of the court must be considered when objections are made to excerpts or short paragraphs thereof. However, when considered, there is no reversible error, as the charge of the court was full, fair and proper. [Rehearing denied June 31, 1916. — Reporter.]
79 Tex. Crim. 555Hill v. State (1916)
The opinion states the case.
79 Tex. Crim. 555Jones v. State (1916)
The opinion states the case.
79 Tex. Crim. 556Burt v. State (1916)
Vagrancy — Justice Court — Custody—Trial de Novo. Where appellant was convicted in a Justice Court and was fined one hundred dollars, gave notice of appeal to the County Court and remained in jail, failing to give an appeal bond, and his appeal was dismissed in the County Court, the same was reversible error and he was entitled to a trial de novo under articles D21, 924 and 925, Code of Criminal Procedure. Following Gruenzel v. State, 47
79 Tex. Crim. 558Crabble v. State (1916)
1. —Passing Forged Check — Sufficiency of the Evidence. Where, upon trial of passing a forged check, the evidence sustained a conviction, there was no reversible error. 2. —Same—Motion for New Trial — Affidavit. Where the motion for new trial was not sworn to and no affidavit attached thereto to substantiate the allegation therein, and the record showed that the court below heard evidence on the motion,, which evidence is not shown in the record, there was no reversible error.
79 Tex. Crim. 559State Ex Relator McNamara v. Clark (1915)
From McLennan County. Original application praying for a writ of prohibition, etc., to prevent the district judge from enforcing an order for the writ of injunction against, relator, restraining him as county attorney to institute criminal prosecutions, for violations of the pool hall law after the same had been adopted in McLennan County. The opinion states the case.
79 Tex. Crim. 603Guild v. State (1916)
Omitting formal allegations, the information alleged that Frank Guild was then and there the agent of the Terrell Cotton Oil Company, an incorporated company engaged in said State in the manufacture and sale of a concentrated commercial feeding stuff, towit, cottonseed cake,'and did then and there in said Hemphill County, Texas, as such agent sell to the Canadian Implement Company, an incorporated company, ten bags of said cottonseed cake, each bag containing said cake…
79 Tex. Crim. 605Rutherford v. State (1916)
1. — Illegal Practice of Medicine — Punishment—Charge of Court. Where, upon trial of unlawfully practicing medicine, the court erroneously defined the penalty to be that of a fine and omitted the part of the punishment which was confinement in the county jail, and the jury found the defendant guilty, assessing his fine at $100, the same was reversible error. Following Dillard v. State, 77 Texas Crfen. Rep., 1, 177 S. W. Rep., 99. 8. — Same—Indictment—Proof. The indictment should not only allege that defendant had not recorded a certificate authorizing him to practice medicine in the county of the prosecution, but should further allege that he had no such certificate, and proof that he had recorded no such certificate would he prima facie proof that he had none.
79 Tex. Crim. 606Sparks v. State (1916)
1. — Assault to Murder — Evidence—Threats. Where, upon trial for assault to murder, the defendant at the time he made the threats to kill someone in the conversation. between the witness and the defendant was concerning and about the prosecutrix, and no other inference could be drawn than that he alluded to her, the same was admissible in evidence. 2. —Same—Identity of Defendant — Evidence—Voice—Charge of Court. Where, upon trial of ass'ault to murder, the evidence disclosed that tha defendant and the prosecutrix had theretofore been criminally intimate; that prosecutrix had discarded the defendant; that they had slept in the same bed, etc., and that on the night of the shooting someone came to the window where she lay in bed, and after making threats shot her; that she recognized the defendant by sight as well as by his voice, the same was sufficient identification and the court correctly refused requested charges that unless defendant saw prosecutrix and she saw him, to acquit him. 3. —Same—Evidence—Newly Discovered Testimony. Where the newly discovered testimony disclosed that a person lying on the bed where prosecutrix lay when she was shot could not recognize a person on the outside of the window in the night, but the testimony of the prosecutrix was that she not only recognized the defendant by personal sight of him but by his voice and repeated the language he used, and that she had been intimate with him before, there was no error in overruling the motion for new trial on that ground.
79 Tex. Crim. 609Pearson v. State (1916)
1. —Robbery—Indictment. Where, upon trial of robbery with firearms, the indictment followed approved precedent, the same was sufficient. 2. —Same—Verdict—Words and Phrases — Charge of Court. Where, upon trial of robbery, the court properly charged the jury in case they found the defendant guilty, to assess his term of punishment at not less than five years, the misspelling in the verdict of the word “years” by leaving out the letter “r” did not vitiate the verdict. 8. — Same—Continuance—Want of Diligence — Immateriality of Testimony. Where defendant’s application for continuance showed a total want of diligence in that he could have had the witnesses present before the trial was completed, and also showed the immateriality of the alleged testimony, there was no error in overruling the motion. <t. — Same—Indictment—Robbery—Value—Surplusage. In an indictment for robbery it is unnecessary to allege the value of the property taken, as this does not affect the penalty a.nd such allegation is surplusage, and there was, therefore, no error in permitting the State’s witness to state the value of the alleged stolen property. O. — Same—Charge of Court — Requested Charges — Practice on Appeal. Where none of the requested charges were presented to the trial judge at the time required by law, and no reason appeared why they should have been given, the same can not be considered on appeal. Hollowing Ross v. State, 170 S. W. Rep., 305, and other cases; besides the requested charges should not have been given had they been properly, presented. 6. —Same—Circumstantial Evidence — Charge of Court. Where, upon trial of robbery by firearms the evidence was direct and positive, there was no error in the court’s failure to charge upon circumstantial evidence. 7. —Same-—Argument of Counsel — Practice on Appeal. Where the argument of State’s counsel was substantially not out of the record or was partly provoked and called for in response to the argument of defendant’s counsel, there was no reversible error. Following Mooney v. State, 76 Texas Crim. Rep., 539, and other cases. [Rehearing denied June 23, 1916. — Reporter.]
79 Tex. Crim. 615Lillie, Alias Shavers v. State (1916)
The opinion states the case.
79 Tex. Crim. 617Bergin v. State (1916)
The opinion states the case.
79 Tex. Crim. 617Bloss v. State (1916)
The opinion states the case.
79 Tex. Crim. 622Wilson v. State (1916)
1. —Murder—Charge of Court — Sufficiency of the Evidence. Where, upon trial of murder, the evidence raised that issue,-there was no error in submitting the same to the jury. 2. —Same—Self-defense—Charge of Court — Coupling Conditions. Where, upon trial of murder, the court in his charge on self-defense, coupled and joined the conditions under which defendant was entitled to self-defense, which was error, but in the same charge stated the law correctly and favorably to the defendant and instructed the jury that if they believed from the evidence either statement or condition, or had reasonable doubt thereof, to acquit the defendant, there was no reversible error; distinguishing Lara v. State, 48 Texas Crim. Bep., 568. 3. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. 4. —Same—Motion for Rehearing — Expressions in Opinion. Where, upon motion for rehearing, appellant contended that the court’s expression, in the original opinion that deceased and his wife were not living together, etc., was not supported by the record, but the contrary appeared, there was no reversible error. 5. —Sainé—Charge of Court — Self-defense—Coupling Conditions. Where the court gave a charge on self-defense that would have been reversible error, by coupling all the conditions upon which defendant claimed self-defense, and then in the same charge instructed the jury that if either statement was made or any condition occurred followed by the attack, real or apparent on the part of the deceased, the defendant should be acquitted, there was no reversible error; distinguishing McMillan v. State, 73 Texas Crim. Bep., 343; Dodson v. State, 45 Texas Crim. Bep., 574; Lara v. State, 48 Texas Crim. Bep., 568.
79 Tex. Crim. 628Black v. State (1916)
The opinion states the case.
79 Tex. Crim. 631Rodriques v. State (1916)
Tried below before the Hon. Isaacks. Appeal from a conviction of murder; penalty, five years imprisonment in the penitentiary. The opinion states the case.
79 Tex. Crim. 635Johnson v. State (1916)
1. — Murder—Sufficiency of the Evidence. Where, upon trial of murder, assessing the death penalty, the evidence was sufficient to sustain the conviction, there was no reversible error. 3. — Same—Confessions—Circumstantial Evidence. Where, upon trial of murder, the defendant made a direct confession, this placed the case beyond the pale of circumstantial evidence. 3. — Same—Newly Discovered Testimony — Affidavits—Reputation for Truth and Veracity. Testimony which only is impeaching does not afford a ground for a new trial, and is not classed as newly discovered testimony; besides, the affidavits of the State showed the confessions of the defendant to the alleged absent witnesses.
79 Tex. Crim. 637Humphries v. State (1916)
The opinion states the case.
79 Tex. Crim. 641Ferguson v. State (1916)
The opinion states the case.
79 Tex. Crim. 650Hutspeth v. State (1916)
1. —Theft—Evidence—Property Pound — Buie Stated. Upon trial of theft of property found, there was no error in admitting testimony that defendant had no money before the alleged theft and shortly thereafter was spending money freely, although the money was. not identified as that which was contained in the lost poclcetbook. Following Armstrong v. State, 34 Texas Crim. Rep., 248, and other eases. 2. —Same—Sufficiency of the Evidence — Bequested Charge. Where, upon trial of theft, the evidence was sufficient to sustain the conviction, there was no error in refusing peremptory instructions to acquit the defendant. 3. —Same—Charge of Court — Bequested Charge. Where, upon trial of theft, the evidence showed that the State’s witness had lost her poclcetbook, containing money, which the defendant was seen to have picked up and quickly put into his pocket, and afterwards spent about the amount of money contained in said poclcetbook, and other incriminatory facts, there was no error in refusing a requested charge to the effect that if the purse or contents did not contain any means of identification of the owner, to acquit the defendant; the court properly instructing the jury as to the law applicable to the facts. 4. —Same—Circumstantial Evidence — Charge of Court. Where, upon trial of theft, the court gave the proper charge on circumstantial evidence, there was no error in refusing a requested charge thereon, and the court’s charge was not on the weight of the evidence. Following Reed v. State, 8 Texas Crim. App., 40, and other cases.
79 Tex. Crim. 652Neyland v. State (1916)
The opinion states the case.