80 Tex. Crim.

Volume 80 — Texas Criminal Reports

201 opinions

80 Tex. Crim. 1Webb v. State (1916)
The opinion states the case.
80 Tex. Crim. 4Debth v. State (1916)
The opinion states the case.
80 Tex. Crim. 10Derrick v. State (1916)
The opinion states the case.
80 Tex. Crim. 11Newman v. State (1916)
Murder—Newly Discovered Evidence—Want of Diligence. Where the alleged newly discovered evidence was in direct conflict with, defendant's testimony, and there was also lack of diligence and the motion was not supported by affidavit, there was no error in overruling the motion for a new trial.
80 Tex. Crim. 12Williams v. State (1916)
' 1,—Theft—Indictment—Buie Stated—Pleading. The rule is that an indictment may contain as many counts charging the same transaction as is deemed necessary to meet the proof and to prevent a. variance, and there was no error in overruling a motion to. quash on the ground of ambiguity. 3.—Same—Election by State—Charge of Court. Where, upon trial of theft, the indictment contained several counts, charging the same transaction, the State was not required to elect; however, as the court only submitted certain counts, this in itself was an election. 3. —Same—Evidence—Check—Money—Proof. Where the indictment alleged theft and embezzlement of money and not of any cheek, it was unnecessary to produce the check; besides the record shows that the check could not 'be nroduced. 4. —Same—Bailee—Charge of Court. Where the proof did not show that defendant had any interest in the money he stole as bailee, there was no error in the .court’s failure to submit a charge thereon; besides this matter was not properly raised on appeal. 5. —Same—Sufficiency of the Evidence. Where, upon trial of theft as bailee, the evidence sustained the conviction, . there was no reversible error. Following Maíz v. State, 36 Texas Crim. Rep., 447, and other cases. • 6. —Same—Indeterminate Sentence Law. Where the sentence did not comply with the indeterminate sentence law, it will be reformed and the cause affirmed.
80 Tex. Crim. 14Tindell v. State (1916)
80 Tex. Crim. 14Tindel v. State (1916)
Tried below before the Hon. Jno. W. Goodwin. Appeal from a conviction of seduction; penalty, three years imprisonment in the penitentiary. ■
80 Tex. Crim. 20Freeman v. State (1916)
1. —Murder—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence, although conflicting, was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Evidence—Bill of Exceptions. Where, upon trial of murder, the' record showed on appeal that the hill of exceptions, objecting to a certain conversation between witness and defendant, was totally defective, the same could not he considered; besides the testimony was admissible. 3. —Same—-Evidence—Confessions. Where, upon trial of murder, defendant contended that her statements which were introduced in evidence, were made while she was in legal custody, etc., but the bill of exceptions did not set out the grounds of objection, the same could not be considered on appeal. 4. —Same—Argument of Counsel. Where, upon appeal from a conviction of manslaughter, defendant’s objections to the argument of State’s counsel, were so qualified by the court as to present no error, there waq no reversible error. 5. —Same—Objections to Charge of Court. Where the objections to the charge of the court were not made until after conviction, the same could not be considered on appeal; besides the court’s charge was correct. 6. —iSame—Objections of Charge—Waiver. Where the record on appeal showed that counsel, both for the State and the defendant, waived examination of the court’s charge, there was no reversible error
80 Tex. Crim. 23Ex Parte Villareal (1916)
The opinion states the case.
80 Tex. Crim. 25Coleman v. State (1916)
1. —Burglary—Indictment—Proof—V ariance. Where, upon trial of burglary, the indictment alleged that defendant broke and entered the house of C. Suderman with the intent to commit the crime of theft, and the evidence showed that it was the property of C. Suderman, it was wholly unnecessary to place Sri after his name even through he had a son named C. W. Suderman, and although the property belonged in part to the father and in part to the son, and there was no variance. 2. —Same—Sufficiency of the Evidence—Accomplice—Explanation—Corroboration. Where, upon trial of burglary, the testimony of the accomplice was fully corroborated, and the possession of the stolen property was traced directly into defendant's hands, it was a question of fact for the jury, whether they believed his explanation of his possession of the stolen property. 3. —Same—Witness—Suspended Sentence. The fact that the accomplice had been convicted of the same offense would not render him an incompetent witness under suspended sentence. 4. —Same—Argument of Counsel—Bill of Exceptions. Where the bill of exceptions to the argument of State’s counsel was not properly verified, the same could not be considered on appeal.
80 Tex. Crim. 26Resendez v. State (1916)
1.—liurder—Evidence—Declarations of Defendant. Upon trial of murder, there was no error in admitting in evidence the declaration of the defendant that he would not consent to a divorce, and that the deceased should be careful because she would know what she would be getting, etc.; it having been shown that deceased had brought a suit for divorce against the defendant. 53.—Same—Evidence—Conversation—Practice on Appeal. Where appellant complains that the court below erred in admitting in evidence the conversation between himself and deceased relative to the signing of the waiver in her divorce case against him, and the relation of the said conversation to the case did not appear of record, the matter can not be reviewed. 3. —Same—Evidence—Acts of Defendant—Bill of Exceptions. Upon trial of murder, it was admissible to show that defendant went to his house just prior to the killing and.took his clothes away from home; besides the bill of exceptions was defective. 4. —Same—Evidence—Conversation—Bill of Exceptions. Where the bill of exceptions failed to set out the conversation to which defendant objected, the same can not be reviewed on appeal. - 5. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions failed to set out the object and purpose of the rejected testimony, the same can not be reviewed on appeal. 6. —Same—Bill of Exceptions—Practice on Appeal. Where the answer of the.witness was not set out in the bill of exceptions. but it simply recited that the question was asked, the matter can. not be reviewed. 7. —Same—Bill of Exceptions—Practice on Appeal. Where the bill of exceptions did not show the relevancy or connection" which the rejected testimony had with the case, the matter can not be reviewed on appeal. 8. —Same—Sufficiency of the Evidence. Where, upon trial and conviction of murder, the evidence sustained a conviction, there was no reversible error.
80 Tex. Crim. 30Hazelwood v. State (1916)
The opinion states the case.
80 Tex. Crim. 31McKinney v. State (1916)
The opinion states the case.
80 Tex. Crim. 40Smith v. State (1916)
The opinion states the case.
80 Tex. Crim. 41Cuilla v. State (1916)
1. —Receiving or Concealing Stolen Property—Statutes Construed—Indictment—Proof-—Disjunctive and Conjunctive—Words and Phrases. Where the defendant was indicted for receiving and concealing stolen property, the accused, under Article 1349, Penal Code, could be convicted for either receiving or concealing said stolen property, and the intent to defraud need not be to defraud any particular person, and the word “concealed” is not to be given the literal construction of “hiding.” Poliowing Polk v. State, 60 Texas Grim, liep., 150; Nourse v. State, 2 Texas Grim. App., 304, and other cases. 2. —Same—Sufficiency of the Evidence. Where, upon trial of receiving and concealing stolen property, the evidence was sufficient to sustain a conviction under both -clauses of the statute, there was no reversible error. 3. —Same—Case Stated—Lawyer—Attorney and Client. Where, upon trial of receiving- and concealing stolen property, the evidence showed that an attorney at law who was the defendant, represented the person or persons who were alleged to have stolen the property, and that said attorney at law fraudulently received and concealed a portion of the alleged stolen property, the conviction was sustained. 4. —Same—Evidence—Question by Court—Weight of Evidence. Where, upon trial of receiving and concealing stolen property, the trial judge, in order to understand the witness, asked him to reiterate the question and have the witness explain his meaning, without any intimitation to the jury such as •would call for reversal and without a showing that probable injury to the accused was done thereby, there was no reversible error. Following Harrell v. ¡State, 39 Texas Crim. Hep., 204, and other cases. 5. —Same—Representation by Counsel. Where an attorney at law was present and represented defendant, there was no error in overruling his motion for a continuance because of the claimed absence and inability of his attorney to be present to represent him on this trial. 6. —Same—Bill of Exceptions. Where the bill of exceptions in no way disclosed how the excluded testimony could have been material, or what the answer of the witness would have been, there was no reversible error.
80 Tex. Crim. 48State Ex Rel. Spencer v. Nabers (1916)
From Hardeman County. Original petition asking for a writ of prohibition against the district judge and others, requiring them to desist from further interference or hindrance of the sheriff and county attorney to enforce the pool hall law by criminal prosecutions.
80 Tex. Crim. 50McPeak v. State (1916)
1. —Murder—Evidence—Irrelevant Testimony. Upon trial of murder, it was reversible error to admit testimony to the effect that sometime prior to the homicide, but on the same day, defendant at the request of his friend had gotten a bottle of bitters from him; it not being shown that this matter had any connection with the transaction and was between defendant and a third party who was not connected with the homicide. Following Hodges v. State, 73 Texas Grim. Bep., 378, and other cases. Prendergast, Presiding Judge, dissenting. 2. —Same—Negligent Homicide—Accidental Killing. Where, upon trial of murder and a conviction of said offense, the evidence raised the issue of accidental and negligent homicide and both issues were embraced in the same charge, the same was reversible error as the issue of accidental homicide should have been submitted unfettered and untrammeled with conditions requiring the jury to find that negligent homicide was not in the case before they could acquit on the accidental theory. Following Hamilton v. State, 64 Texas Grim. Bep., 175, and other cases. Prendergast, Presiding Judge, non-concurring. 3. —Same—Charge of Court—Murder. Where, upon trial of murder and a conviction of that offense, the issues of murder, negligent homicide, and accidental killing were raised by the evidence, there was no error in the court’s charge submitting the issue of murder. Davidson, Judge, dissenting. 4. —Same—Mistake—Charge of Court—Negligent Homicide in the First Degree. Where, upon trial of murder and a conviction thereof, the evidence raised the issue of mistaken and negligent homicide of the first degree, the same should have been submitted by proper charges. Prendergast, Presiding Judge, non-concurring. 5.—Same—Argument of Counsel—Carrying Pistol. Upon trial of murder, the argument of counsel with reference to the local option law, and other matters outside of the record were improper, and the fact that defendant was unlawfully carrying a pistol would not render him guilty of any grade of homicide if he fired the pistol unintentionally.
80 Tex. Crim. 56State Ex Rel. Spencer v. Nabers (1916)
From Hardeman County. Original petition asking for a writ of prohibition against the district judge and others requiring them to desist from further interference or hindrance of the sheriff and county attorney to enforce the pool hall law by criminal prosecution.
80 Tex. Crim. 58Moody v. State (1916)
The opinion states the case.
80 Tex. Crim. 60Price v. State (1916)
Carrying Pistol—Statement of Pacts—Practice on Appeal. Where the alleged statement of facts and bills of exception were filed after term time in the County Court without an order, authorizing such filing, the same must be stricken from the record; however, if considered, there was no reversible error, etc.
80 Tex. Crim. 61Cozart v. State (1916)
The opinion states the case.
80 Tex. Crim. 64Thornton v. State (1916)
. 1.—Burglary—Indictment—Proof—Variance—Ownership. It has long been the rule in this State, that when property is owned in common or jointly by two or more persons, the ownership -may 'be alleged to be in all or either of them, and the State is not required to prove the want of consent of any person not mentioned in the indictment, and there was, therefore, no merit in the contention that there was a variance between the allegation and the proof. Following Skaggs v. State, 56 Texas Grim. Rep., 79, and other ■cases. 2.—Same—Evidence—Other Offenses—Circumstantial Evidence. Upon trial of burglary, depending on circumstantial evidence, there was no error in permitting the State to prove that when defendant was found in possession of the alleged stolen property, other property found in his possession had also been stolen at about the same time of the alleged theft, near the same place. Following House v. State, 16 Texas Grim. App., 25, and other cases.
80 Tex. Crim. 66Wagner v. State (1916)
1. —Carrying Pistol—Charge of Court—Misdemeanor—Buie Stated. When a party is only charged with and convicted of a misdemeanor, and no charge appears in the record on appeal, it will be presumed that an oral charge was given by consent of the parties, or that no charge was given, and if the former, that the charge so given was correct. Following Bowden v. State, 2 Texas Urim. App., 56, and other cases. 2. —Same—Buie Stated—Presumption—Practice. Where, in a misdemeanor case, no exceptions were taken to the court’s charge, and no special charges were requested, this court will conclusively' presume that the charge of the court covered every phase of the case, and an unverified complaint thereto can not be considered on appeal. Following Sullivan v. State, 61 Texas Crim. Hep., 657, and other cases. S.—Same—Evidence—Bill of Exceptions—Practice on Appeal. In the absence of a bill of exceptions, a complaint that the court erred in admitting testimony that defendant resisted arrest, can not be considered. 4. —Same—Sufficiency of the Evidence—On or About Person. Where, upon trial of unlawfully carrying a pistol, the State’s testimony showed that defendant drove an automobile to the depot, and shortly thereafter, when he was arrested, tried to break away from the officers and a pistol was found pushed down behind the front cushion of said automobile, the allegation that defendant carried a pistol about his person, was sustained; although there was no evidence that defendant had such pistol in his actual physical possession. Following Leonard v. State, 56 Texas Crim. Hep., 84, and other cases. 5. —Same—Buie Stated-Burden of Proof. The State’s case is complete when, with time and venue, it is shown that defendant carried a pistol about his person, and the burden of proof is on him to show that he is exempt, by reason of coming within some of the exceptions named in the statute. Following Blair v. State, 26 Texas Crim. App., 387, and other cases. 6. —«Same—Buie Stated—Ownership. The offense of carrying a pistol on or about the person, in no way makes it a requisite that the party so carrying the weapon, shall be the owner thereof, and where defendant made no explanation but resisted arrest, the conviction was sustained.
80 Tex. Crim. 70Allen v. State (1916)
1.—Disorderly House—Sufficiency of the Evidence. Where, upon trial of keeping a bawdy house, the evidence was sufficient to sustain the conviction, there was no reversible error. However, the fact that defendant hired and used a livery stable rig twice, should not be admitted in evidence upon another trial. 3.—Same—Grand Jury—Incriminating Evidence. Where, upon trial of keeping a bawdy house, the record showed on appeal that the defendant without proper warning was required to testify before the grand jury, incriminating herself, and that this matter was testified to by some of the grand jurors upon defendant’s trial, the same is reversible error, following Simmons v. State, 184 S. W. Kep., 226.
80 Tex. Crim. 72Booher v. State (1916)
1. —Misdemeanor—Theft—Allegation and Proof—Articles Stolen, Number of. Where the information alleged the theft of twenty-five turkeys and the evidence authorized the jury to find that' five of the turkeys were stolen, the conviction was authorized. Following Grissom v. State, 40 Texas Grim. Rep., 140, and other cases. 2. —Same—Receiving Verdict—Misdemeanor—Tail Penalty—Absence of Defendant. Upon trial of a misdemeanor in which a jail penalty was necessarily a part of the punishment, the court did not err in receiving a verdict of conviction in the absence of the defendant. Following Wyatt v. State, 49 Texas Grim. Rep., 193.
80 Tex. Crim. 73Woods v. State (1916)
Aggravated. Assault—Alibi—Sufficiency of the Evidence—Charge of Court. Where, upon trial of aggravated assault, the evidence failed to exclude the idea of .defendant's- presence at the time of the commission of the offense, a, charge upon the subject of alibi was unnecessary, the court submitting a proper charge otherwise. Following Underwood v. State, 55 Texas Grim. Hep., 601, and other cases.
80 Tex. Crim. 74Stephens v. State (1916)
1.—Local Option—Bills oí Exception. Where the first two bills of exception were refused by the court, for the reason that they recited matters which did not occur on the trial, the same could not be considered on appeal. 2. —Same—Charge of Court—Burden of Proof. Where, upon trial of a misdemeanor, the court’s charge sufficiently presented tile burden of proof, reasonable doubt, and presumption of innocence, there was no error in refusing a requested charge that the burden of proof is on the State throughout the trial, and never shifts to the defendant. Following Huggins v. State, 42 Texas Crim. 1-tep., 364, and other cases. 3. —Same—Former Jeopardy—Charge of Court. Where the statement of facts showed that there was no evidence offered to support the plea of former jeopardy, and the plea on its face, compared with the record, showed it could not present the question of former jeopardy, there was no error in the court’s failure to submit the same. 4. —Same—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence, although conflicting, supported the conviction, there was no reversible error.
80 Tex. Crim. 76Self v. State (1916)
Tried below before the Hon. L. D. Guinn. Appeal from a conviction of seduction; penalty, five years imprisonment in the penitentiary. The charge of the court on accomplice testimony was as follows: A conviction can not be had upon the evidence of an accomplice alone, unless such an accomplice is corroborated by other evidence.
80 Tex. Crim. 77Ex Parte Cook (1916)
The opinion states the case.
80 Tex. Crim. 79Johnson v. State (1916)
The opinion states the case.
80 Tex. Crim. 82Smith v. State (1916)
1. —Rape—Continuance. Where the judgment is reversed and the cause remanded, the overruling of an application for a continuance need not he discussed. 2. —Same—Evidence—Res Gestae—Outcry of Prosecutrix. Where, upon trial of rape, the court admitted in evidence the testimony of the aunt of the prosecutrix to the effect that the latter came running over to her house, and was just about to cry, and then said that defendant had come over to her house, thrown, her down on the bed and' gotten on top of her, to all of which defendant objected on the ground that in rape cases, such res gestae testimony was not admissible; held, that, if the facts and circumstances bring said testimony within the rule governing res gestae statements, the same is admissible; but a like statement made by the prosecutrix to her mother some time after the occurrence, after other matters had intervened, would not he admissible. 3. —Same—Evidence—Complaint of Prosecutrix. Upon trial of rape, while a detailed report of the transaction made by prosecutrix to her mother some time after the occurrence, would not be admissible, yet said mother could testify that prosecutrix came to her and made complaint, arid that she, acting o,n said complaint, examined the clothes of prosecutrix, etc., and sent for a physician, but said mother could not be permitted to testify what the prosecutrix told her or that she complained of the defendant. Following» Pefferling v. State, 40 Texas, 492. 4. —Same—Evidence—Marriage—Immaterial Testimony. Upon trial of rape, there was no error in permitting the State to show that defendant was married to another and different woman, but the question as to whether defendant had treated his wife rightfully or wrongfully, was not an issue in the case. 5. —Same—Evidence—Moral Turpitude. Upon trial of rape, testimony that defendant had been sent to the penitentiary some sixteen years prior to the time of this trial, when he was only sixteen years old, should not have been admitted in evidence.
80 Tex. Crim. 85Winters v. State (1916)
The opinion states the case.
80 Tex. Crim. 87Berry v. State (1916)
1.—Murder—Degrees of Murder—Charge of Court—Manslaughter. Where, upon trial of murder, under the old statutes, defendant was convicted of manslaughter, the court’s charge upon either degree of murder need not be considered. 3.—Same—Whole Charge Must Be Considered. It is elementary that the whole charge of the court must be considered in connection with the paragraph objected to, and that the State has the right, as well as the defendant, to have issues in its favor submitted properly to the jury. 3. —Same — Self-defense — Charge of Court —Provoking ¡Difficulty — Hule Stated—Intent to Kill. The rule is that if a person by words or acts, or both, provoke a contest with the apparent intention of killing or doing serious bodily injury to the deceased, the offense would not be. manslaughter, but murder, even though the killing was done in self-defense, or in defense of another. Following Green v. State, 12 Texas Grim. App., 449, and other cases. 4. —Same—Intent—Battery—Provoking Difficulty—Charge of Court—Buie Stated. The rule is that if the accused by words or acts, or both, provoke a difficulty or combat, or produce the occasion for deceased to attack him, for the. purpose of thereby producing an opportunity of committing a battery upon him, or inflicting violence upon him other than to kill or to do him serious bodily injury and does so, then the accused would be guilty of manslaughter, even though it should then be necessary to kill the deceased in self-defense or defense of another. Following King v. State, 13 Texas Grim. App., 284, and other cases. 5. —Same—Provoking Difficulty—Self-defense. The doctrine of provoking. a difficulty is necessarily a limitation of self-fense or defense of another, and is so intended by the law. 6. —Same—Provoking Difficulty—Trespass—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the evidence showed that the deceased had not given his consent for the defendant and his father to cut corn stalks on land which the deceased had rentfed from said father, and that defendant and his father, with intent to cut said stalks, without consent of the deceased and over his protest, attempted to do so, when the latter made a violent attack on defendant’s father, whereupon defendant killed deceased, the court correctly, in his charge on provoking a difficulty, instructed the jury that if the killing took place under these facts and circumstances, the defendant would be guilty of manslaughter, and there was no reversible error. 7. —Same—Requested Charges. Where, upon trial of murder and a conviction of manslaughter, the refused requested charges were either not applicable or on the weight of the evidence, or contained in the -main charge, there was no reversible error. 8. —Same—Evidence—Bill of Exceptions. Where appellant complained of the court’s refusal to permit him to reproduce in evidence the testimony of a certain witnessi, but the bill of exceptions was defective, and besides, it was not shown that said witness was beyond the jurisdiction of the court, there was no reversible error. 9. —Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no reversible error.
80 Tex. Crim. 91Ellis v. State (1916)
Gaming—Companion Case. Where, upon appeal from a conviction of gaming, every question presented was correctly disposed of. in a companion case, the judgment must be affirmed. Following Wilson v. State, recently decided.
80 Tex. Crim. 92Meissner v. State (1916)
The opinion states the case.
80 Tex. Crim. 93Hassell v. State (1916)
1.—Murder—Self-defense—Landlord and Tenant—Charge of Court—■ Seasonable Doubt. Where the homicide grew out of a dispute over a crop between landlord and tenant, defendant being the tenant and deceased the landlord, and the State contended that the defendant had turned his cotton crop over to the deceased, and that defendant could not claim to have acted in defense of his property, and defendant contended that he had not turned over said crop to the deceased, and had a right to act in defense of his property when he shot and killed deceased, it was reversible error in the court’s charge to require defendant to prove that he had not turned the cotton crop over to deceased, before he would have the right of defending his property, as defendant was entitled to the reasonable doubt upon this issue. 8.—Same—Defense of Property—Statutes Construed. Article 1107, Penal Code, provides that one who acts in defense of his property must resort to all other means then at his command to prevent the injury, before resorting to the extreme of killing the assailant. However, this does not refer to a right to go and sue the aggressor, and the court, in the instant case, should so have instructed the jury; but the contention that this restriction on the right to defend one’s property is untenable, can not be sustained. 3.—Same—Adequate Cause—Manslaughter—Charge of Court, Where, upon trial of murder, the defendant complained that the court below, in his charge on manslaughter, had undertaken to state a part of the facts instead of embracing all of the facts and circumstances, which would amount to adequate cause and reduce the homicide to manslaughter, and, it appeared from the record that this contention was correct, the same was reversible error. Following Wheeler v. State, 54- Texas Crim. Rep., 47, and other cases. 4. —Same—Buie Stated—Adequate Cause—Facts and Circumstances— Charge of Court. Where, upon trial of murder, the court charged the jury that they might look to all the facts and circumstances that had occurred between deceased and defendant, and as a general rule, this would be sufficient to direct the minds of the jury, yet in this case, very nearly all the prior incidents and discussion had taken place between defendant’s father and deceased, and the charge of the court would exclude the jury from considering such matter, when under the peculiar circumstances of this ease, they should have been authorized to consider such facts and incidents, the same was reversible error. 5. —Same—Self-defense—Threats—Charge of Court. Where, upon trial of murder, the charge of the court placed an improper limitation on defendant’s claim of self-defense, and only authorized the jury to consider the threats against defendant's life, when the record showed threats, not only against defendant’s .life but also against the life of his father, and disclosed acts and words to lead the defendant to believe that deceased was a dangerous man, etc., said charge of the court was too restricted, and perhaps, misled the jury in passing on both the issues of manslaughter and self-defense. 6. —Same—Fame of Deceased—Middle Initial—Variance. Where the indictment charged the defendant with killing E. B. Holcomb, while the evidence showed the name of the deceased to be E. J. Holcomb, there was no variance, as the middle initial of the name of the deceased can be wholly disregarded. Following Stockton v. State, 25 Texas, 772. 7. —Same—Evidence—Photograph. Unless the evidence should show that the conditions are practically the same at the time of taking the photograph that they were at the time of the homicide, a photograph of the scene of the homicide, is inadmissible in evidence.
80 Tex. Crim. 101Vansickle v. State (1916)
The opinion states the case.
80 Tex. Crim. 106Kinchen v. State (1916)
1.—Aggravated Assault—Deadly Weapon—Insufficiency of the Evidence, Where, upon trial and conviction of aggravated assault by means of a deadly weapon, the evidence was insufficient to show that the instrument used was a deadly weapon, as contemplated by the statute, there was reversible error. 3.—Same—Verdict—Degrees of Offense. tVhere, upon trial of aggravated assault, the court in his charge submitted both aggravated and simple assault, the jury should have specified, in their verdict, the grade of the offense of which defendant is convicted.
80 Tex. Crim. 108Martin v. State (1916)
Local Option—Copy of Indictment—Statutes Construed—Written Pleading. Under article 551, Code Criminal Procedure, the defendant, as soon as he is arrested, shall be served with, a copy of the indictment, whether he is in custody or not, and under article 579, id., he is entitled to two days, after service of copy of indictment, in which to file written pleadings.
80 Tex. Crim. 109Hall v. State (1916)
1. —School Law—Independent School District—Treasurer—Information. Where the information charged the defendant with having failed to make a report as treasurer of an independent school district, etc., and said omission was not made a penal offense and a penalty affixed thereto 'by the written law of this State, the cause must be remanded and the information dismissed. 2. —Same—Codifiers—Statutes Construed—Penalty Omitted. Where the penalty provided for in the previous Act was never carried forward into the Revised Penal Code of 1911 by the codifiers, who omitted the specific penalty and simply provided for a punishment as provided in the Penal Code, without specifying the penalty, no one can be punished thereunder. 3. —Same—Statutes Construed—Independent School District. Article 2851, section 149, of the Acts of 1905, provides for certain towns to form independent school districts, which may include within its limits incorporated towns, but such towns shall not have the right to assume control of the schools in such independent school districts; and article 1580, Penal Code of 1911, is not broad enough in its scope to embrace the treasurer of such town in said independent school district, and applies only to such treasurers of cities and towns having exclusive control of its schools. 4. —Same—Information—Treasurer—Independent School District. Where the information charged the defendant as the treasurer of a certain town which had formed an independent school district for failing to make an annual report of the school funds of said district, but it appeared by the terms of article 2851, Revised Civil Statutes, that said town could never assume exclusive control of the schools of said district, the treasurer of said town within the limits of said district would not be guilty of a criminal offense under article 1580, Penal Code, for failing to make such report, and such information failed to charge any violation of the Penal Code, and is, therefore, insufficient, and the cause will be reversed and dismissed. 5. —Same—Legislation Suggested. Whereas, the Civil Statutes, pertaining to the school law, require certain reports to be made to the State Superintendent, but no penalty is provided by the Penal Code for the officers failing to make such report, the attention of the Legislature is called to such defect.
80 Tex. Crim. 113Sola v. State (1916)
1. —'Aggravated Assault—Incompetent Witness—Words and Phrases. Article 91, Penal Code, and article 791, Code of Criminal Procedure, not only disqualify those who may he indicted as principals, but also those who are prosecuted as such by complaint and information, and the word indictment in said articles means alleged accusation, and where defendant’s wife was charged with the same transaction by complaint, charging a simple assault, she was incompetent to testify for the defendant; who was charged with an aggravated assault. Pollowing Oliver v. State, 65 Texas Crim. Rep., 150, and other cases. 2. —Same—Judicial Knowledge. Where both complaints were pending in the County Court, one against the husband and the other against the wife, said court had judicial knowledge of the complaint against the wife when she offered to testify.
80 Tex. Crim. 114Ex Parte Parker (1916)
The opinion states the case.
80 Tex. Crim. 115Handle v. State (1916)
Tried below before the Hon. T. H. Downs. Appeal from a conviction of a violation of the local option law; penalty, a fine of twenty-five dollars and twenty days confinement in the county jail.
80 Tex. Crim. 115Randle v. State (1916)Affirmed
Appeal from San Augustine County Court; T. H. Downs, Judge. Bully Randle was convicted of selling intoxicating liquors in prohibition territory, and appeals.
80 Tex. Crim. 116McWilliams v. State (1916)
The opinion states the case.
80 Tex. Crim. 116Fritz v. State (1916)
The opinion states the case.
80 Tex. Crim. 117Gomez v. State (1916)
Murder—Newly Discovered Evidence—Sufficiency of the Evidence. Where the motion for new trial, setting up newly discovered evidence, was not supported by affidavit, and the evidence was sufficient to sustain the conviction of murder, there was no reversible error.
80 Tex. Crim. 118Davis v. State (1916)
1. —Burglary—Delinquent Child—Juvenile Court—Age of-Defendant. In the absence of a statement of facts, where defendant contended on appeal that b® was under seventeen years of age, this court must conclude that the court below heard evidence and either found that appellant was more than eighteen years of age or that he was of that character of person who should not have his ease sent to the Juvenile or Delinquent Court for trial, but should be treated as a felon. Following McCallan v. State, 76 Texas Grim. Rep., 353, 174 S. W. Rep., 611. 2. —Same—Habeas Corpus—Practice on Appeal—Delinquent Child. Where defendant pleaded guilty to burglary, but thereafter filed a motion for a new trial, claiming that he was under seventeen years of age at the time of the commission of the offense and at the time he was tried, which the lower court overruled and defendant appealed to this court, and it appeared that the lower court had committed no error in overruling defendant’s motion for new trial, an original application for a writ of habeas corpus involving the same questions, after defendant had nerfected his appeal, will not be granted.
80 Tex. Crim. 119Martinez v. State (1916)
Theft—Indictment—Possession. Where, upon trial of theft, the indictment was sufficient, an objection that the alleged stolen property was not alleged to have been taken from the prosecuting witness, was correctly overruled.
80 Tex. Crim. 120Moore v. State (1916)
The opinion states the case.
80 Tex. Crim. 121Longoria v. State (1916)
!•—Theft of Cattle—Evidence—Declarations by Defendant—Bill of Exceptions. Where, upon trial of theft of cattle, the defendant testified that he purchased the same, there was no error to permit the State, in rebuttal, to show that whep defendant was first charged with the theft of said cattle, he said that the same did not belong to him, but were the property of his brother; the only objection being that he was afraid not to make a statement, and because this was not a confession; besides, it appeared from the record that defendant, was not under arrest when he made such statement. 2. —Same—Other Transactions—Withdrawal of Testimony. Upon trial of theft of cattle, there was no error in permitting the State- to-show that defendant was in possession of other stolen cattle at the time he sold those described in the indictment. However, as the State did not follow up this, matter, and the court withdrew said testimony, there was no -reversible error» 3. —Same—Election by State—Different Counts—General Verdict. Where the indictment charged in one count the theft of cattle, and in another count receiving the same, etc., there was no error in refusing to require the State to .elect upon which count it would prosecute, nor in submitting both counts, and a general verdict of guilty could be applied to either count. Following Rosson v. State, 37 Texas Grim. Rep., 87.
80 Tex. Crim. 123Longoria v. State (1916)
The opinion states the case.
80 Tex. Crim. 127Guthrie v. State (1916)
1. —Disorderly House—Charge of Court—Election "by State. Where, upon trial of keeping a house for prostitution, the information only contained one count, but the court permitted the State to prove three separate transactions, and failed to limit the evidence to one transaction, hut authorized the jury to convict defendant for any one of the transactions, without requiring the State to elect, the same was reversible error. 2. —Same—Buie Stated—Pleading—Proof—Election "by State. If the information had contained three counts, alleging the offense to have occurred at different dates, in accordance with the proof offered, no election could have been required, but as defendant was charged with committing only one offense, she should have been placed on trial for only one offense. Following Golden v. State, 160 S. W. Bep., 957.
80 Tex. Crim. 129Diaz v. State (1916)
The opinion states the case.
80 Tex. Crim. 130Medford v. State (1916)
The opinion states the case.
80 Tex. Crim. 131Parita v. State (1916)
¡Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no reversible error.
80 Tex. Crim. 132Taylor v. State (1916)
Theft of Cattle—Appeal Bond—Recognizance. Where defendant was convicted of theft of cattle, and the court adjourned after the defendant had entered into an appeal bond instead of a recognizance, the appeal must be dismissed.
80 Tex. Crim. 132Taylor v. State (1916)
The opinion states the case.
80 Tex. Crim. 133Villareal v. State (1916)
The opinion states the case.
80 Tex. Crim. 136Goosby v. State (1916)
1.—Disorderly House—Charge of Court. Where, upon trial of permitting the keeping of a disorderly house, the charge of the court did not conform to the allegations in the information, and the evidence introduced supporting such allegations, but authorized the conviction, on all the clauses contained in the statutes, for unlawfully and knowingly permitting a house to be kept for purposes of prostitution, the same was reversible error. 2. —Same—Evidence—Vagrancy—Disturbing the Peace. Where, upon trial of permitting the keeping of a disorderly house, the defendant objected to oral testimony that one of the inmates of the alleged house had pleaded guilty to vagrancy, and that defendant pleaded guilty to disturbing the peace, and urged that the complaint and information was the best evidence, and it appeared that no proper predicate had been lq.id for the introduction of such oral testimony, and the fact that defendant was charged with disturbing the peace, was not admissible in evidence, the objection should have ■been sustained. 3. —Same—Evidence—General Reputation. Upon trial of permitting the keeping of a disorderly house, it was inproperto permit the State's counsel on direct examination to ask the witnesses from whom they obtained the information that the alleged house had a bad reputation, and an exception thereto should have been sustained.
80 Tex. Crim. 140Lane v. State (1916)
The opinion states the case.
80 Tex. Crim. 141Cogburn v. State (1916)
The opinion states the case.
80 Tex. Crim. 142Bush v. State (1916)
The opinion states the case.
80 Tex. Crim. 146Cortonelia v. State (1916)
Aggravated Assault—Jury and Jury Law—Verdict. Where a regular jury of twelve men was impaneled and none excused thereafter, nine of whom found a verdict, the other three refusing to concur, on a trial of a misdemeanor in the District Court, the defendant excepting to the verdict, the court, nevertheless, receiving the same, and entering a judgment of conviction thereon, the same was reversible error. Following Renfro v. State, recently decided.
80 Tex. Crim. 147Dearman v. State (1916)
1. —Murder—Special Term of District Court—Special Judge—Plea in Abatement. Where, upon appeal, it appeared from the record that the regular judge had convened a special term of the District Court to select grand and petit jurors to try the defendant, and in the absence of the regular judge, the attorneys in attendance of the special term selected an attorney to serve as special judge who qualified according to law and empaneled the jurors, a plea in abatement, when the case was called, alleging that said special term, etc., was illegal, and moving to quash the indictment, was correctly overruled. 2. —Same—Peremptory Challenge—Jury and Jury Law. Where the record disclosed that defendant did not exhaust all of his peremptory challenges, and no juryman unacceptable to him was forced on him, the contention that the court erred in requiring him to exhaust one of his peremptory challenges, presented no error. 3. —Same—Jury and Jury Law—Death Penalty. Where the death penalty was not assessed, and in the absence of a complaint that any juror was challenged because of his answer to the question that if he Were taken as a juror, and the evidence justified it, and the law required it, would he hesitate to inflict the death penalty, there was no error; besides this was not an improper question, and was equivalent as to whether he had any conscientious scruples to inflict the death penalty. 4. —Same—Evidence—Bill of Exceptions. Where the bill of exceptions failed to disclose as to what the witness would have testified, there was no reversible error; besides, the record showed that the witness testified in regard to all the matter about which defendant desired to question him. 5. —Same—Evidence—Examining Trial. Upon trial of murder, a witness was properly permitted to state what he had testified to at the examining trial, as this was' not secondary evidence, and the witness' statement taken at the time, could be used to impeach him. 6=—Same—Evidence—Impeaching Testimony. Where, upon trial of murder, the defendant adduced in evidence a portion of the testimony given by a State’s witness on another trial, for the purpose of impeachment, there was no error in permitting the State to introduce in evidence other portions of this testimony, relating to the same matter. 7. —Same—Evidence—Contradicting Witness. Where a defendant’s witness testifies that she was sick when the court adjourned on account thereof, and this matter was not seriously questioned, there was no error in refusing to permit defendant to prove that said witness was then really si?k. 8. —Same—Insult to Eemale Relative—Evidence—Argument of Counsel. Where, upon trial of murder, the defendant claimed that he billed deceased because of his improper relations with defendant’s sister, the first time he met him after being so informed, there was no' error in permitting the State to show that defendant and deceased had met before on several occasions Since that time, and to introduce other testimony in rebuttal to. defendant’s contention as to trouble between his brother, etc., and the argument of State’s counsel on such testimony was legitimate and presented no error. 9. —Same—Evidence—Prior Difficulty—Details UTot Admissible. Where testimony of a prior difficulty was incidentally referred to, and defendant was permitted to show that he received a cut therein, in an effort to separate some other parties, there was no error in refusing to permit defendant to go into details as to how he received such cut 10. —Same—Jury and’ Jury Law—Inability to Read and Write. Where it was not shown that there was a sufficient number of qualified persons residing in the county of the prosecution, who could read and write, out of whom a jury could he elnpaneled, and it did not appear from the record that the juror was asked on his examination whether he could read and write, an objection on this account was properly overruled. 11. Same—Sufficiency of the Evidence—Adequate Cause—Charge of Court. Where the issue of adequate cause was fairly submitted to the jury, and the evidence sustained the conviction of murder, there was no reversible error.
80 Tex. Crim. 147De Arman v. State (1916)Judgment affirmed
1. Indictment and Information <@=>7 — Special Terms of Court — Statutes. By Code Cr. Proc. 1911, arts. 93, 94, and Rev. St. 1911, art. 1678, the calling of special terms of the district court and the election of special judges is provided for, and an indictment, found at a special term regularly called the grand jury having been impaneled by a special judge duly selected, was valid. [Ed. Note. — For other ■ eases, see Indictment and Information, Cent. Dig. §§ 36-42; Dec. Dig. @=>7.] 2. Jury @=>110(14) — Challenge to Venireman-Failure to Sustain Challenge for Cause. Where defendant did not exhaust all of his peremptory challenges, and no unacceptable juryman was forced on him, there was no error in requiring him to exhaust one of his peremptory challenges on a venireman as to whom the court should have sustained his challenge for cause. [Ed. Note. — For other cases, see Jury, Cent. Dig. § 520; Dec. Dig. @=>110(14).] 3. Jury @=>131(8) — Question to Veniremen —Death Penalty. In a prosecution for murder, the state’s counsel was properly permitted to ash veniremen whether, if taken as jurors, and the evidence justified it, and the law required it, they would hesitate to inflict the death penalty. [Ed. Note. — For other cases, see Jury, Cent. Dig. § 568; Dec. Dig. @=>131(8).] 4. Criminal Law @=>1120(3) — Appeal — Bills of Exception — Showing qf Testimony. Bills of exception, complaining of the court’s refusal to permit defendant to propound certain questions to a witness, should state what the witness would have answered or testified to in regard to the matters complained of. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931, 2932; Dec. Dig. .@=> 1120(3).] 5. Witnesses @=>245 — Examination—Repetition of Testimony. The court properly refused to permit defendant to propound to a witness questions involving matters as to which she had already testified. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 827, 828; Dec. Dig. @=>245.] 6. Criminal Law @=>547(3) — Evidence—Testimony at Examining Trial. A witness was properly permitted to state what he testified to at the examining trial; his testimony not being secondary evidence. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1240-1245; Dec. Dig. @=> 547(3).] 7. Witnesses @=>393(3) — Impeachment — Statement of Former Testimony. The written statement taken at the examining' trial could be used to impeach a witness stating what he testified to at such trial. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1254; Dec. Dig. @=>393(3).] 8. Witnesses @=>396(2) — Impeachment-Evidence — Admission of Part of Statute-Prior Testimony. Under Code Cr. Proc. 1911, art. 811, relative to the admissibility of all of a statement bearing on a matter testified to, in a murder case, where defendant introduced part of the testimony given by a witness qn another trial for purposes of impeachment, the' state was properly permitted to introduce other portions of this testimony relating to the same matter as the portion introduced by defendant, since, when a portion of a statement or testimony is offered in evidence, all the statement bearing on the matter testified to at the same time is admissible to render the meaning clear. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1263.; Dec. Dig. @=>396(2).] 9. Witnesses @=>412 — Corroboration—Actuality of Sickness Causing Adjournment. Where court adjourned on account of the illness of a witness who testified that she was ill, her cross-examination not seriously assailing or questioning her testimony on that point, the refusal to permit defendant to introduce evidence to prove that she was really sick when court adjourned was proper. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1285; Dec. Dig. @=>412.] 10. Homicide @=>181 — Provocation — Evidence. Where defendant claimed to have killed deceased because of his relations with defendant’s sister, etc., contending that he killed deceased the first time he met him after learning of such matters, the court properly permitted the state to elicit from defendant’s brother on cross-examination that he had discussed the matter with defendant some three years before, and to prove by other witnesses that defendant and deceased had met on several occasions since. [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 383-385; Dee. Dig. @=>181.] 11. Homicide @=>181 — Justification — Evidence. Where defendant introduced 'testimony, to make out justification, that deceased might have been the cause of his sister’s ruin, it was permissible for the state to show that, when defendant’s brother killed another brother, there was a rumor afloat that such other brother and the sister had improper relations, to show that no. improper relations existed between deceased and the sister, as between her and her brother, and that defendant knew of the matter and had discussed it with still another brother. [Ed. Note. — For other cases, see Homicide,. Cent. Dig. §§ 383-385; Dec. Dig. @=>181.] 12. Witnesses @=>330(2) — Evidence — Passion or Provocation. In a prosecution for murder, defendant justifying on the ground that deceased had ruined his sister, where defendant introduced his brother, to show that deceased had been guilty, the court properly permitted the state to draw from such brother on cross-examination the statement that he and defendant had discussed before the killing the alleged improper relations between their other brother and sister. [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1107; Dec. Dig. @=>330(2).] 13. Homicide @=>169(1) — Evidence — Explanation of Out. Where the only way a cut of defendant’s was referred to by state’s witnesses was that one referred to it incidentally as fixing the time of an occurrence a year before the killing, the court properly refused to permit defendant to go into details of how he received the cut, several years, before the difficulty, being permitted to testify that he received it in an effort to separate some other parties engaged in a fight. [Ed. Note. — For other cases, see Homicide,. Cent. Dig. § 341; Dec. Dig. @=>169(1).] 14. Juey <§=110(1) — Inability to Read and White—Objection after Verdict. Where a juror swears that he was not asked on his examination whether he could read and write, objection on that score after verdict comes too late. [Ed. Note.—Eor other cases, see Jury, Oent. Dig. §§ 503-505, 515; Dec. Dig. <§=>110(1).] 15. Jury <@=>133 — Inability of Juror to Read and Write—Statute. Under Code Or. Proc. 1911, art. 692, subd. 14, providing that the cause for challenge to a juror that he cannot read and write shall not be sustained when the requisite number of jurors able to read and write cannot be found in the county, in a murder case, where it was not shown to the court that there were enough qualified persons residing in the county who could read and write out of whom a jury could be impaneled, the Court of Criminal Appeals is not authorized to review the action of the court in overruling motion for new trial on the ground that a juror, who could not to the court’s knowledge read and write, had been impaneled. [Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 586-598; Dec. Dig. <@=>133.]
80 Tex. Crim. 152Redwine v. State (1916)
The opinion states the case.
80 Tex. Crim. 153Davis v. State (1916)
Burglary—Accomplice—Corroboration—Insufficiency of the Evidence. Where, upon trial of burglary, the conviction depended upon the evidence of an accomplice, which was not corroborated in any material fact, the conviction could not be sustained, following Welden v. State, 10 Texas Crim. App., 400; distinguishing Martin v. State, 21 Texas Crim. App., 1.
80 Tex. Crim. 157Renfro v. State (1916)
80 Tex. Crim. 161Sarli v. State (1916)
The opinion states the case.
80 Tex. Crim. 169Johnson v. State (1916)
The opinion states the case.
80 Tex. Crim. 169Johnson v. State (1916)Judgment affirmed
Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. Nelson A. Johnson was convicted of seduction, and he appeals.
80 Tex. Crim. 177Matthews v. State (1916)
1.—Occupation—Intoxicating Liquors—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence sustained the conviction, there was no re-Vol. 80 Crim.-12 versible error, although defendant attacked the State’s principal witness as unworthy of belief; this was a question for the jury. 2. —Same—Indictment—Law in Force—Order of Election. It is not necessary to allege the date of the local option election and putting the same in force, if the indictment alleges that the offense occurred after the law_ was in force, nor is it necessary to allege the orders of the court for the local option election, and the indictment being sufficient, there was no error in overruling the motion to quash. Following Mizell v. State, 59 Texas Grim. Rep., 226, and other cases. 3. —Same—Evidence—Reputation of Witness—Cross-examination. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, one of defendant’s witnesses testified that the general reputation for truth and veracity of the State’s principal witness was bad, there was no error, on cross-examination of defendant’s witness, to ask him whether he was a drinking man to show his sympathy for the defendant, the witness answering that he did not drink when he could get it, but might take a drink once in a while. 4. —Same—Evidence—Cross-examination. Where the State contended that defendant on Saturdays went to Dallas on the interurban, returning that night with more or less whisky and kept it from time to time in his room at the boarding house, after the State’s main witness had testified to finding several bottles of whisky in the room where appellant had made the alleged sale, and defendant had introduced his landlord who testified that he never saw any whisky in said room, there was no error in permitting the State, on cross-examination of his’ witness, io undertake to show that defendant did go to Dallas every Saturday night, etc.; witness answering that he did not know whether they went to Dallas or not, thus failing to prove the State’s contention. Following Hart v. State, 57 Texas Grim. Rep., 21, and other cases. Harper, Judge, dissenting. 5. —Same—Evidence—General Reputation. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the defendant objected to the court’s refusal to permit him to have his witnesses testify to defendant’s good general reputation for truth and veracity, because such reputation had not been attacked, there wag no reversible error. Harper, Judge, dissenting. 6. —Same—General Reputation—Rule Stated. It is well established that if the State attacks defendant’s general reputation. for truth and veracity, or attempts to impeach him by proving contradictory statements, defendant should be permitted to introduce proof of his general good reputation for truth and veracity, but the fact that he gives testimony disputing that offered by the State, would make no such testimony admissible. Following Pettis v. State, 68 Texas Grim. Rep., 22Í, and other cases. Harper, Judge, dissenting. 7. —Same—Evidence—Other Transactions—Cross-examination. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the State’s witness testified to finding liquor stored in defendant’s room pending the time defendant made the sales to him, which defendant denied, andjntrodueed a witness to support his testimony, who testified that defendant only had a little whisky, something like half a pint, with which they made eggnog, there was no error on cross-examination by the State, to show that defendant had five pints of whisky in his room on the very day he was arrested. Harper, Judge, dissenting.
80 Tex. Crim. 186Becker v. State (1916)
The opinion states the case.
80 Tex. Crim. 196Glasscock v. State (1916)
Tried below before the Hon. M. A. Hopson. Appeal from a conviction of gaming by matching money for the drinks, etc.; penalty, a fine of ten dollars.
80 Tex. Crim. 197Vance v. State (1916)
The indictment was objected to, among other things, in that it failed to allege that the result of the election and the order putting prohibition in effect in the county of the prosecution was published by the county judge as required by law, and that it alleged a- joint sale. etc.
80 Tex. Crim. 199Martin v. State (1916)
The opinion states the case.
80 Tex. Crim. 202Walter v. State (1916)
1.—Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no reVersible error. 8.—Same—Continuance—Waiver. Where the court overruled the application for a continuance, but recessed and issued attachments for the absent witnesses, and offered to postpone the case until next morning, which offer was not accepted, and the trial proceeded, there was no reversible error. 3.—Same—Bill of Exceptions—Affidavits—Practice. Affidavits filed after the trial can not be considered as a bill of exceptions by the trial court or reviewed by this court.
80 Tex. Crim. 204Flores v. State (1916)
1. —Local Option.—Plea of Guilty—Suspended Sentence—Affirmative Proof—Waiver. Where, upon appeal from a violation of the local option law, the record showed that the defendant entered the plea of guilty and a prayer for the suspension of sentence; that the jury refused to suspend sentence and assessed his penalty at one year imprisonment in the penitentiary, and that defendant expressly waived the introduction of affirmative proof by the State, although the judgment recited that the jury heard the evidence, held that the defendant thereby waived the requirement of article 566, Code Criminal Procedure, to the effect that evidence must be submitted to the jury to decide thereon, when the punishment is not absolutely fixed; as the jury assessed the lowest punishment. Following ICearse v. State, 68 Texas Grim. Rep., 633. Davidson; Judge, dissenting. 2. —Same—Waiver—Statutes Construed—Trial in Felony Case—Affirmative Proof. While article 566, Code Criminal Procedure, requires the introduction of evidence when defendant pleads guilty and the punishment is not absolutely fixed by law, etc., yet article 22, Code Criminal Procedure, provides that the defendant may waive any right except the right of trial by jury in a felony case, and as the defendant can waive the introduction of evidence, and did expressly waive the introduction of affirmative proof by the State, he is in no position to complain, where the jury assessed the lowest penalty authorized by law. Following Hancock v. State, 14 Texas Grim. App., 392. Davidson, Judge, dissenting.
80 Tex. Crim. 208Ellis v. State (1916)
80 Tex. Crim. 211Dupree v. State (1916)
The opinion states the case.
80 Tex. Crim. 216Thomas v. State (1916)
1. —Murder—Sufficiency of the Evidence—Manslaughter—Mutual Combat. Where, upon trial of murder and a conviction of manslaughter, the evidence raised the issue of mutual combat and was otherwise sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error. 2. —Same—Continuance—Other Witnesses—Waiver—Practice on Appeal. Where defendant’s application for a continuance was overruled because the defendant refused the court’s offer to wait for the witness whom defendant had summoned, and the testimony of the other absent witnesses could have been shown by other witnesses in attendance and was probably not true, and no affidavit was attached to the motion for new trial of the alleged absent witnesses, there was no reversible error. 3. —Same—Buie Stated—Discretion of Court—First Application for Continuance. It is the well settled rule in this State that the first application for a continuance as well as subsequent ones, are addressed to the sound discretion of the court, and should not be granted as a matter of right, and where the court finds that the absent evidence is not of a material character, or not probably true, there is no error in refusing a new trial. 4. —Same—Buie Stat.ed—Motion for New Trial—Practice on Appeal. A judgment of conviction will not be reversed because of a refusal of a continuance or postponement, and unless it is made to appear by the motion for a new trial in the light of the evidence adduced at the trial that the alleged absent testimony is relevant, material, and probably true, there is no reversible error in overruling the motion. Following Roller v. State, 36 Texas Grim. Rep., 496, and other cases. 5.—Same—Rule Stated—Practice on Appeal. Unless it appears on appeal that, in connection with the evidence adduced upon the trial, the alleged absent testimony would have produced a verdict more favorable to the defendant than was rendered, the same is not reversible error, even though the defendant may have probably been prejudiced in his rights by the overruling of the motion for continuance and new trial. Following Stewart v. State, 76 Texas Grim. Rep., 52, and other cases.
80 Tex. Crim. 220Diaz v. State (1916)
The opinion states the case.
80 Tex. Crim. 221Smith v. State (1916)
1. —Murder—Dying Declarations—Bes Gestae. Upon trial of murder and a conviction of manslaughter, there was no error in admitting dying declarations and the statement of the defendant in reply to his wife’s statement to go back to the house, he saying that he had done nothing but kill a damn dog, no arrest having been made, and this occurring immediately following the fatal shooting. 2. —Same—Dying Declarations—Practice on Appeal. Where appellant complained of the alleged admission of dying declarations, but the motion for new trial did not raise this question, this matter could not be considered on appeal, as the rule of the Supreme Court requires that grounds not presented to the trial court in the motion for new trial can not be considered on appeal; besides the defendant having been found guilty of manslaughter on his own testimony, he could not complain. 3. —Same—Motion for New Trial—Bill of Exceptions—Dying Declarations. Where the State contended that not only did defendant not complain in his motion for new trial of admitting in evidence the alleged dying declarations, but the bill of exceptions itself was insufficient- in that it did not contain all the predicate laid on which the dying declarations are admitted which must also be set forth, and defendant admitted while this was true, the trial court referred to the statement of facts in approving the bill and that this should cure the defect, yet it being shown by the record that even if this court refers to such statement of facts, the jury could not have properly returned a verdict for less than manslaughter of which the defendant was convicted, there was no reversible error.
80 Tex. Crim. 225Bankston v. State (1916)
1. —Murder—Remarks by Court—Captious Witness. Where the defendant’s witness was captious and refused to answer questions by giving evasive and argumentative answers, the trial judge had -the right to require the witness to answer the questions propounded, and there was no reversible error. 2. —Same—Sufficiency of the Evidence—Manslaughter. Where, upon trial of murder and a conviction of manslaughter, the evidence was sufficient to sustain ■Lhe conviction there was no reversible error.
80 Tex. Crim. 226Miller v. State (1916)
1. —Burglary—Confessions—Corroborations. Where, upon appeal from a conviction of burglary, the appellant contended that the crime must he proved independent of the confession, such is not the law, and where the confession was sufficiently corroborated the conviction is sustained. 2. —Same—Identity of Property. Although the owner was not able to positively identify certain articles taken from his store, but testified that he found at the place where defendant said the stolen goods had been carried, goods of the character and kind that had been taken from the store, there was no error in refusing to withdraw such testimony. Following Turner v. State. 48 Texas Grim. Rep., 585, and other cases. 3. —Same—Confessions—Corpus Delicti—Charge of Court. Where, upon trial of burglary in the night-time, the court instructed the jury to find beyond a reasonable doubt, that the house was entered by force in the night-time, and in another paragraph, that the confession alone was not sufficient to prove the corpus delicti, unless there was other evidence corroborative of said confession, the same was sufficient, as it is not necessary to prove the corpus' delicti, independent of the confession. Following Harris v. State, 64 Texas Crim. Hep., 605, and other cases. 4. —Same—Sufficiency of the Evidence—Sufficiency of the Corroboration—■ Confessions. Where, upon trial of burglary in the night-time, the evidence showed, independent of the defendant's confession, that the alleged goods were taken from the owner’s store without his knowledge or consent; that defendant was seen at night near the scene of the burglary, and that the goods of the character taken out of said store, were hid away, this was sufficient corroboration of the confession.' 5. —Same—Entry—Charge of Court—Night-time Burglary—Charge of Court. Under article 1303, Penal Code, defining a charge defining an entry of burglary in the night-time, must require the entry be made by force, threats, or fraud, and the indictment must allege, and the proof must show this; and where the charge of the court was defective in this respect, the same was reversible eror. Following JNewman v. State, 55 Texas Crim. Hep., 375, and other cases.
80 Tex. Crim. 231Lyons v. State (1916)
Perjury—Jury Not Sworn—Practice on Appeal. Under article 904, Code Criminal Procedure, as amended, it is provided that this court must conclusively presume that the jury was sworn, unless such fact was made an issue in the court below; besides, where the jury were once sworn and the case dismissed, but defendant consented to go to trial, before the same jury, this was sufficient.
80 Tex. Crim. 232Hill v. State (1916)
1.—Assault to Murder—Continuance—Want of Diligence. Where the application for a continuance showed a total want of diligence to procure the presence of the alleged absent witnesses, there was no error in overruling the same. "3.—Same—Evidence—Impeaching Testimony—Cross-examination. Upon trial of assault with intent to murder, there was no error in permitting the State, on cross-examination, to show that defendant was convicted of a felony prior to the instant ease. 3.—Same—Sufficiency of the Evidence. Where, upon trial of an assault with intent to murder, the evidence sustained the conviction, there was no reversible error.
80 Tex. Crim. 232Klopner v. State (1916)
Delinquent Child—Practice on Appeal. No appeal lies to this court from an order adjudging defendant a delinquent child. Hollowing Dartee v. {State, 174 ÍS. W. Hep., 1057.
80 Tex. Crim. 235Marshall v. State (1916)
1.—Murder—Self-defense—Charge of Court. Where, upon trial and' conviction of murder, the defendant claimed self-defense, and the testimony in behalf of the State showed a most horrible murder, and the court submitted the issue of murder and manslaughter, and besides submitted the issue of self-defense in the most comprehensive and complete way in defendant’s behalf it could well have been done, and also submitted a requested charge thereon and only refused such requested charges which were covered by the court’s main charge, or not applicable, there was no reversible error. 3.—Same—Eight to Go Armed—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of defendant’s right to carry his gun with him for the purpose of defending himself, etc., there was no error in the court’s refusal to submit a requested charge thereon, nor in refusing other requested charges which could not and .would not have been of any service to the jury to solve the question submitted. 3. —Same—Defendant’s Eight to Arm Himself—Provoking Difficulty— Charge of Court. W’here, upon trial of murder, the charge of the court submitted defendant’s claim of self-defense most fully and completely from all standpoints, and in no way limited his right of self-defense by a charge on provoking the difficulty, or otherwise, there was no error in his refusal to submit a requested charge on the defendant’s right to arm himself. 4. —Same—Eule Stated—Self-defense—Eight of Going Armed. If the trial court does not limit defendant’s right of self-defense by a charge on provoking the difficulty, or otherwise, but gives him the perfect right of self-defense on every defensive theory, it is not error to refuse to charge on his right to arm himself and seek an explanation. Following Williford v. State, 38 Texas Grim. Rep., 393, and other cases.
80 Tex. Crim. 240Porter v. State (1916)
1. —Assault to Murder—Aggravated Assault—Depositions—Continuance— Want of Diligence. Where, upon trial of assault to murder and a conviction for aggravated assault, one of defendant’s absent witnesses, for which he sought a continuance, lived in another State just across the line, to whom the defendant propounded interrogatories which were duly crossed by the State and sent them to a notary in said other State, this was not due diligence; besides, it did not appear that he provided for the payment of the officer for taking the depositions nor did the application show why said depositions were not taken and returned within time to be introduced on the trial. 2. —Same—Depositions—Notary Public—Statutes Construed. Article 820, Code Criminal Procedure, does not authorize a notary public out of this State to take depositions of an absent -witness residing in such State. Following Lienpo v. State, 28 Texas Grim. App., 179, and other eases. 8.—Same—Continuance—Want of Diligence—Subpoena. Where defendant’s application for a continuance showed that a subpoena was issued for an absent witness and returned not served, and defendant used no other diligence to secure the attendance of said witness, although he could easily have done so, there was no error in overruling his application. Following Giles v. State, 66 Texas Grim. Hep., 038, and other cases. 4.—Same—Charge of Court—Practice on Appeal—Objections to Charge of Court. Where defendant objected to the court’s charge, and the court changed his charge in several respects to meet some of the objections, and the bill of exceptions did not point out the objection to the court’s action in what particular instance he did not correct or change his charge, there was no reversible error. 5. —Same—Requested Charges—Bill of Exceptions. Where the bill of exceptions did not present or point out the questions embraced in the requested charges which the court refused, they can not be reviewed on appeal; besides, there was no error in refusing them. Following Byrd v. State, 09 Texas Crim. Rep., 35, and other cases. 6. —Same—Evidence—Facts Showing Transaction. Upon trial of assault to murder and a conviction of aggravated assault, there was no error in introducing in evidence the acts, and declarations of defendant. and his companions which were a part of the whole transaction and led up to the assault. 7. —Same—Evidence—Remarks by Court. Upon trial of assault to murder and a conviction for aggravated assault, there was no error in introducing testimony that the witnesses were looking for a constable who was the party assaulted, and the remarks of the trial judge with reference thereto which were addressed to counsel and not to the jury, and which were not on the weight of the evidence. 8. —Same—Evidence—Declarations of Third Party. Upon trial of assault to murder and a conviction of aggravated assault, there was no error in permitting the assaulted party to testify as to what was told him about a lot of men on the road shooting a gun and automatic pistol, and requesting him as constable to go down there and stop them; to show why the constable went there and was assaulted by defendant. 9. —Same—Evidence—Flight—Resisting Arrest. Upon trial of assault to murder and‘a' conviction of aggravated assault, there was no error in admitting testimony why the officers responded to a call over the telephone to arrest defendant and his companions who had assaulted the constable, the party alleged to have been injured, and that the defendant and his companions were fleeing and resisted arrest when the officers overtook them; besides, this testimony was withdrawn by the court except as to the question of flight. Following Moreno v. State, 71 Texas Crim. Rep., 460, and other cases. 10. —Same—Evidence—Warrant of Arrest. Where, upon trial of assault to murder and a conviction of aggravated assault, the evidence showed that defendant and his companions, after assaulting the constable, attempted to escape in hasty manner, there was no error in admitting testimony that other officers were notified of their attempted escape and the unlawful manner in which they conducted themselves, to show that the officers had neither time nor opportunity to procure a warrant of arrest for them. 11. —Same—Evidence—Irrelevant Testimony. Upon trial of assault to murder and a conviction for aggravated assault, the proffered testimony by the defendant that he was charged with disturbing the peace, etc., had no legitimate bearing upon the trial of the instant case, there was no error in excluding it. 12. —Same—Evidence—Impeaching Witness. Where a proper predicate had been laid, there was no error in permitting the State to introduce in evidence the written statement of one of the defendant’s witnesses which contradicted some of his testimony on the trial. 13. —Same—Evidence—Acts of Defendant—Shorthand Facts. Upon trial of assault to murder and a conviction of aggravated assault, there was no error in the cross-examination of one of defendant’s witnesses, to have him testify that it looked to the witness that defendant was getting ready to shoot; besides, this testimony was withdrawn by the court.
80 Tex. Crim. 257Kelley v. State (1916)
1.—Assault to Murder—Arrest—Officers—Notice to Defendant. Where, upon trial of assault to murder, the evidence showed that three officers, in citizens clothes, went to the defendant’s room at night, for the purpose of arresting him for committing robbery shortly before, knocked on defendant’s door, who asked, “Is that you, Dave?” when the officers replied, “Yes,” when defendant opened the door and the shooting began, etc.; the evidence further showing that defendant was aware that the parties entering the room were officers to effect his arrest, he was not justified in shooting the officers although they had not notified him of their purpose. Davidson, Judge, dissenting. 12.—Same—Illegal Arrest—Charge of Court—Self-defense—Yoree Used. Where, upon trial of assault to murder, the defendant complained of the court’s failure to give in charge to the jury articles 289 and 290, Code Criminal Procedure, relating to an officer forcibly entering a house to make an arrest, and that the officer shall make it known that he is an officer and that he is there for making an arrest, and the evidence showed that the officers were trying to overtake the defendant who had shortly before committed two robberies and escaped, and forcibly entered defendant’s room who thereupon shot and wounded one of the officers, the evidence further showing that defendant was aware of the fact that they were officers and had come to arrest him, and the court submitted in his charge the theory of the State that the defendant was not justified under these circumstances, and also instructed the jury what would be an illegal arrest, and defendant’s right of self-defense, force used, etc., there was no reversible error. Davidson, Judge, dissenting.
80 Tex. Crim. 264Hawthorne v. State (1916)
1. —Local Option—Indictment. Where, upon trial of a violation of the local option law, the indictment followed approved precedent, the same was sufficient. Following Dupree v. State, recently decided. Davidson, Judge, dissenting. 2. —Same—Evidence—Credibility of Witness—B/ule Stated. It is settled in this State, that proof that any witness who testifies ha-committed any given crime, is inadmissible. It is only permissible to impeach him by showing that he has been indicted or convicted for such crime. 3.—Same—Evidence—Moral Turpitude. Upon trial of a violation of the local option law, the court committed no error in permitting the State on cross-examination of the defendant to prove that he had been indicted, tried, and convicted of a felony or a misdemeanor imputing moral turpitude within a period not too remote. Davidson, Judge, dissenting.
80 Tex. Crim. 266Wilson v. State (1916)
1. —Graining—Matching Money—Indictment. Where, upon trial of matching money, etc., at least two counts of the four counts in the indictment, which were submitted to the jury, were good upon motion to quash, there was no reversible error. Davidson, Judge, dissenting. 2. —Same—Indictment—Pleading—Rule Stated. Where several ways are set forth in the same statute by which an offense may be committed, and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged conjunctively in the same count, and where the pleader charged them in separate counts, this did not change the rule. Following Cabiness v. State, 66 Texas Grim. Rep., 409. 3. —Same—Charge of Court—Requested Charges. Where defendant in neither requested charge nor any way connected therewith, gave any reason why they should have been given, and did not except to the refusal of the court to give them, the same can not be considered on appeal. 4. —Same—Rule Stated—Misdemeanor—Bill of Exception—Practice on Appeal. In misdemeanor cases, the only way this court is authorized to consider complaints of the charge of the court and the refusal of special requested charges, is by bill of exceptions taken at the time to the charge of the court, giving specific reasons of the court’s ruling. Following Basques v. State, 56 Texas Grim. Rep., 329, and other cases. However, there was no error in the ruling of the court. 5. —Same—Charge of Court—Sufficiency of the Evidence. Where, upon trial of matching money, etc., the evidence was sufficient to sustain a conviction under a proper charge of the court, there was no reversible error. Davidson, Judge, dissenting. 6. —Same—Jury and Jury Law—Other Trials—Practice on Appeal. Where, upon appeal of matching money, etc., it appeared from the record on appeal that in the preliminary examination of the jurors of the regular panel, some of them answered in substance that while they had sat as jurors in two other cases against another person on a similar charge and had an opinion, if the facts were similar in the instant case, yet that they could disregard said opinion and try the case according to the law and the evidence, there was no error in overruling a challenge on this account to the whole panel; besides, the record showed that none of the jurors who so answered sat on uefendaht’s case. Following Edgar v. State, 59 Texas Grim. Rep., 252, and other cases. 7. —Same—Evidence—Wager For Drinks—Matching Coin. Where one of the counts in the indictment charged defendant with matching money or coins for cold drinks, it was not necessary that the State must prove the kind of drinks for which the wager was made. 8.—Same—Sufficiency of the Evidence. See opinion setting out the evidence which sustained a conviction for a bet or wager on a game of matching money for the drinks under a proper charge of the court. Davidson, Judge, dissenting.
80 Tex. Crim. 272Lang v. State (1916)
-Assault to Murder—Jurisdiction—Appeal Bond—Recognizance—Statutes Construed. Under article 902, Code Criminal Procedure, when a defendant appeals during term time of the trial court, and desires not to remain in jail pending the ■appeal, he must enter into a recognizance and under article 904, Code Criminal Procedure, he may enter into an appeal bond in vacation, and where, after notice of appeal and while the court was in session, the defendant entered into an appeal bond approved by the sheriff and trial judge, the jurisdiction of this court did .not attach to pass upon his appeal. Following Bloss v. State, 187 S. W. Rep., 487.
80 Tex. Crim. 274Mendlovitz v. State (1916)
1*—Scire Pacías—Writ of Error—Bill of Exceptions—Statement of Pacts. In the absence of a bill of exceptions and a statement of facts, assignments of error, or brief by plaintiff in error, the case must be affirmed, which was brought to this court on writ of error on a scire facias proceeding. 2.—Same—Scire Pacías—Civil Case—Buie Stated—Practice on Appeal— Brief. Where the ease was brought to this court on writ of error, in a scire facias proceeding, the rule governing appeals in civil eases obtains, and, in the absence of a brief filed in the lower court, the appeal must be dismissed on motion of the State. Following Jay v. State, 34 Texas Grim. Rep., 98, and other cases.
80 Tex. Crim. 275Martin v. State (1916)
The opinion states the case.
80 Tex. Crim. 275McAfee v. State (1916)
The opinion states the case.
80 Tex. Crim. 280Smiley v. State (1916)
The opinion states the case.
80 Tex. Crim. 281Wyatt v. State (1916)
The opinion states the case.
80 Tex. Crim. 283Jones v. State (1916)
Disorderly House—Judgment. Where, upon appeal from a conviction of keeping a disorderly house, the judgment was incomplete, the same will be amended so as to correspond with the verdict of the jury.
80 Tex. Crim. 283Spence v. State (1916)
The opinion states the case.
80 Tex. Crim. 287Bankston v. State (1916)
The opinion states the case.
80 Tex. Crim. 288Reid v. State (1916)
The opinion states the case.
80 Tex. Crim. 290Ex Parte Smith (1916)
From Travis County. Original habeas corpus proceeding, asking bail upon a charge of murder, which is granted in the sum of $10,000.
80 Tex. Crim. 290Ex Parte Marshall (1916)
From the Criminal District Court of Dallas. Tried below before the Hon. W. L. Crawford, Jr. Appeal from a habeas corpus proceeding denying relator bail upon a charge of murder.
80 Tex. Crim. 291House v. State (1916)
The opinion states the case.
80 Tex. Crim. 292Cranfill v. State (1916)
The opinion states the case.
80 Tex. Crim. 293Crippen v. State (1916)
The opinion states the case.
80 Tex. Crim. 293Hamilton v. State (1916)
Local Option—Statement of Facts—Practice on Appeal. Where the statement of facts in the County Court was filed more than twenty days after the adjournment of the court, the same can not be considered on appeal, and the judgment must be afiirmed.
80 Tex. Crim. 299Hollingsworth v. State (1916)
The opinion states the case.
80 Tex. Crim. 303Kiernan v. State (1916)
Murder—Insanity—Argument of Counsel—Remarks by Judge. Where, upon trial of murder, the witnesses for the defendant testified that defendant was insane and it was dangerous to the public for him to be at large, and one of the jurors propounded questions to one of the expert physicians who had testified as to defendant’s mental condition if he thought the defendant ought to be turned loose, to which he answered in the negative and that two years confinement would be insufficient, and the prosecuting officer in his argument to the jury insisted that there was no confinement for the criminally insane but the penitentiary, while the district judge remarked that he had turned someone loose because of his insanity on habeas corpus, etc., the same was reversible error. Prendergast, Presiding Judge, dissenting.
80 Tex. Crim. 307Ex Parte Sturrock (1916)
From Tyler County. Original application for writ of habeas corpus, praying to be discharged from an order of the County Court, adjudging relator guilty of contempt in failing to pay the amounts to the wife for wife desertion, by order of said court. The opinion states the case.
80 Tex. Crim. 309Bullington v. State (1916)
The opinion states the case.
80 Tex. Crim. 311Carson v. State (1916)
1.—Murder—Severance—Practice in District Court. Where defendant and another, upon trial for murder, could not agree on the order of trial, and each expressed a desire that the other be first tried, it became the duty of the court to direct which one should first be tried, and as the eodefendant and the defendant both filed pleas of severance, there was no error in the court directing that the defendant be first tried. Following Chumley. v. State, 32 Texas Grim. Rep., 255, and other cases. 2. —Same—Continuance—Bill of Exceptions—Practice on Appeal. In the absence of a-bill of exceptions, the overruling of a motion for a continuance can not be considered on appeal; besides, there was a want of diligence,, and the witness would not have testified as alleged in the application. 3. —Same—Evidence—Acts and Declarations of Defendant—Flight. . Upon trial of murder, where the evidence showed that the witnesses for the' State searched for some evidence as to the cause of the death of the deceased, it was permissible to prove that such search was made during which time it was discovered by the opening of a trunk that defendant and his codefendant had packed their clothing in said trunk ready for flight. 4. —Same—Argument of Counsel—Insanity of Witness. Where, upon trial of murder, the record showed that defendant’s counsel had secured two doctors to visit the codefendant, and that he called both of them as witnesses but asked enither of them any questions about the mentality of said codefendant, there was no reversible error in State’s counsel to comment on that fact. 5. —Same—Evidence—Acts of Defendant. Where, upon trial of murder, the codefendant testified for the State, there was no error in showing by her that defendant had given the deceased rough-on-rats, which contained arsenic.
80 Tex. Crim. 314Lusport v. State (1916)
The opinion states the case.
80 Tex. Crim. 317Looney v. State (1916)
1.—Theft—Ownership—Possession—Control—Indictment. Where, upon trial of theft of property of the value of fifty dollars, the evidence showed that the alleged stolen property consisted of some metal which belonged to a foundry and the ownership was alleged to be in the owner of .tho foundry, but the evidence also disclosed that the metal had been severed from the building by certain parties when it was taken by the defendant, the ownership should have been alleged in the parties who severed the metal from the foundry and who were in actual control thereof. 3.—Same—Intent—Fraudulent Taking—Consent. Where, upon trial of theft, the evidence showed that the defendant had the consent of the party who attended to all the business of the alleged owner, to remove the alleged property, and defendant believed that he had the right to take the alleged property, the case is not one of theft, and the court committed reversible error in refusing to permit the defendant to introduce testimony to show this state of facts. 3.—Same—Charge of. Court—Accomplice. Where, upon trial of theft, the charge of the court on accomplice testimony was not according to precedent, the same was error.
80 Tex. Crim. 322Patterson v. State (1916)
The opinion states the case.
80 Tex. Crim. 323Cozby v. State (1916)
1. —Perjury—Sufficiency of the Evidence—Corroboration. Where, upon trial of perjury, the testimony sustained a conviction, which was based on the testimony of one credible witness corroborated strongly by other evidence, there was no reversible error, and the court did not err in failing to give a peremptory instruction to- acquit the defendant. 2. —Same—Indictment—Precedent. Where, upon trial of perjury, the indictment followed the statute and approved precedent, the same was sufficient. 3. —Same—Charge of Court—Requested Charges. Where defendant’s special charge was fully covered by the court’s main charge, there was no error in refusing it. 4. —Same—Intoxicating Liquors—Impaired Memory—Mistake. Where, upon trial of perjury, the evidence did not raise the issue that defendant’s memory was impaired from drinking alcohol, etc., affecting his memory, and excluded the idea that the defendant was acting under a mistake, there was no error in refusing a requested charge thereon. Following Sisk v. State, 28 Texas Grim, App., 432. ' 5.—Same—Evidence—Record of Court. Upon trial of perjury, there was no error in admitting in evidence the complaint, warrant of arrest, etc., to identify the cause the grand jury had under consideration, and the jurisdiction therein. Following Stanley v. State, 95 5. W. Rep., 1076, and other cases. 6. —Same—Evidence—Impeaching Witness. Where, upon trial of perjury, the defendant sought to impeach the main State’s witness by showing that she had made a different statement before the trial from what she testified to on the trial, there was no error in permitting the State to introduce her testimony on the examining trial showing that her testimony was the same. 7. —Same—Minutes of the Court—Foreman. There was no error in requiring the clerk to enter the court’s order appointing the foreman of the grand jury, etc., as the minutes of the court are under his control during the whole term of the court. 8. —Same—Evidence—Declaration of Defendant. Upon trial of perjury, there was no error in admitting testimony as to the declarations of the defendant as to knowing the chief prosecuting witness; besides, there was no issue made about this fact. 9. —Same—Evidence—Declarations of Prosecutrix. Upon trial of perjury, there was no error under the facts of the case, in permitting the principal State’s witness to testify that she was afraid of a certain party nor in admitting the declarations of the defendant as to why he had a gun on a certain occasion. 10. —Same—Age of Prosecutrix—Evidence—Harmless Error. Where, upon trial of perjury growing out of a certain case of rape upon the chief prosecuting witness, there was no dispute or controversy as to the age of the said witness, the court’s action in permitting in evidence the record of her birth from a page torn from her. parents’ Bible, if error, was harmless. Following Henkel v. State, 27 Texas Grim. App., 510, and other cases. 11. —Same—Cross-examination—Defendant as a Witness. Where the trial court permitted a proper cross-examination of defendant and his witness, there was no reversible error.
80 Tex. Crim. 328Guerra v. State (1916)
1.—Seduction—Juror Under Age—Practice on Appeal—Presumption. Where the testimony heard on motion for new trial with reference to the question that one of the jurors was under age, was not filed during the term of the court, but some weeks after it adjourned, the same can not be considered on appeal, and this court must presume that the trial court’s action was sustained by the facts. Following Black v. State, 41 Texas Grim. Bep., 185, and other cases. 3.—Same—Incompetent Juror—Buie Stated. A new trial should not be granted for the incompetency of one of the jurors by whom the case was tried when it is not shown that this incompetency was not known when the juror was accepted, or that it could have been known by proper inquiry. Following Trueblood v. State, 1 Texas Grim. App., 650, and other cases; besides, no injury resulted, and if the statement of facts were considered, there was no error in the court’s refusal to grant a new trial.
80 Tex. Crim. 330MacIas v. State (1916)
Burglary—Jury and Jury Law—Practice on Appeal. Where appellant complained that one of the jurors who tried him for burglary was properly challenged by him, but by inadvertence, was left on the jury list and called upon the jury by the clerk and there empaneled and sworn to try the cause, but it appeared from the record that the juror was fully qualified, there was no reversible error, in the absence of a showing that the juror was prejudiced, and it is too late to raise this issue after verdict. Following Munson v. State, 34 Texas Grim. Sep., 498, and other cases.
80 Tex. Crim. 331Arce v. State (1916)
The opinion- states the case.
80 Tex. Crim. 332Page v. State (1916)
1. —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence although circumstantial, sustained the conviction, there was no reversible error. 2. —Same—Newly Discovered Evidence. Where the motion for new trial on the ground of newly discovered evidence showed a want of diligence to discover the same, and besides, was not properly presented, there was no reversible error in-overruling the motion.
80 Tex. Crim. 334Cleveland v. State (1916)
L—Local Option—Indictment—Publication of the Result of An Election— Commissioners Court—County Judge—Surplusage. Since the amendment of Article 5728, Revised Civil Statutes, providing for a contest of election within a certain time, whereafter, it shall be conclusively presumed that said election as held, and the result thereof declared, are in all respects valid and binding upon all courts, and it was • not necessary to prove that the publication of the result of said election has been made, but only that an election for prohibition has been held in the named territory and prohibition adopted, it is no longer necessary to make such allegation in the indictment, and when made, must be treated as surplusage, and there was, therefore, no error in overruling a motion to quash the indictment on the ground that the indictment failed to allege that said order of publication was made by the county judge, etc. Distinguishing Carnes v. State, 50 Texas Crim. Rep., 282, and other cases. Following Hardy v. State, 52 Texas Crim. Rep., 420, and other cases. Davidson, Judge, dissenting. 3.—Same—Argument of Counsel. Where, upon trial of a violation- of the local option la'w, the record showed on appeal that the remarks of the district attorney, to which defendant objected, were in response to the argument of defendant’s counsel, and was not in itself sufficient to reverse the case, there was no reversible error.
80 Tex. Crim. 341Faulkner v. State (1916)
The opinion states the case.
80 Tex. Crim. 352Hill v. State (1916)
The opinion states the case.
80 Tex. Crim. 354Emerson v. State (1916)
1.—Carrying1 Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence was sufficient to sustain the conviction, there was no reversible error. Following Leonard v. State, 56 Texas Grim. Rep., 84, and other cases. 3.—Same—On or About Person—Definition of Offense. Where the information alleged that the pistol was carried on and about the defendant’s person, and the evidence showed that the pistol was in the box of the seat, covered by the cushion in the buggy upon which the defendant sat and rode at the time, he was guilty of carrying on and about his person a pistol. Following Wagner v. State, 188 S. W. Rep., 1001, and other cases.
80 Tex. Crim. 356Legois v. State (1916)
1. —City Charter and. Ordinance—Selling Intoxicating Liquors. Where appellant was convicted of selling intoxicating liquors in territory in the corporate limits of the city of Wichita Falls, outside the territory in which saloons were authorized to be licensed by the charter of said city, it was no defense that defendant was a wholesale liquor dealer under license in the prescribed territory and sold beer by the gallon, not permitting it to be drunk on the premises where sold, upon advise of leading counsel. Davidson, Judge, expressing no opinion. 2. —Same—Indictment—Constitutional Law. Where defendant was convicted of selling intoxicating liquors in the corporate limits of the city, outside the territory in which saloons were authorized to be licensed by the charter of said city, a motion to quash the indictment on the ground that this section of the charter is void because in conflict with the Federal and State Constitutions and the laws of the State, was properly overruled. 3. —Same—Constitutional Law—Amending Charter—Selling—License. After the adoption of section 5, article 11, of the Constitution of Texas, the city of Widliita Falls amended its charter by providing, among other things, that no person shall be licensed to sell intoxicating liquors except within certain described boundaries in said city, in compliance with said Constitution, the contention that said section of the city charter only prohibited the issuance of license to sell and did not prohibit the sale of intoxicating liquor, is untenable, as it is necessary to first obtain such license to sell. 4. —Same—Constitutional Law—City Charter—Enabling Act. Section 5, article 11 of the Constitution of Texas, by its terms confers the power of certain cities and towns to act without the specific grant of authority from the Legislature to amend its charter in compliance with said article of the Constitution, and such cities, since the adoption of said section 5, article 11, no longer have to look to the Legislature for a grant of power to act, and no limitation is placed on said sities to amend their, charters in any given particular as long as the same is not inconsistent with the Constitution and tlié general laws of the State; besides, the Legislature passed an enabling act, although not necessary to do so, putting in force this provision of the Constitution. 5. —Same—Liquors Drunk on Premises—Established Districts. The contention that the city charter grants authority only to established districts in which the sale of intoxicating liquors to be drunk on the premises may be prohibited, and does not grant authority to establish districts in which the sale of intoxicating liquors may be prohibited when such liquors are not to be drunk on the premises, is untenable, and said charter gave explicit and implied authority to establish such districts. 6. —Same—City Charter—Constitutional Law. The contention of appellant that this section of the charter of Wichita Falls is violative of section 20, of article 10 of the Constitution of Texas, providing for local option by vote of the people, is untenable. Following Cohen v. Rice, 101 S. W. Rep., 1052, and other cases. 7. —Same—Sale of Intoxicating- Liquors—Limiting- Sale to Certain City Districts. By the act of the Legislature of 1913, it is provided that if any person shall sell any intoxicating liquor in any city or town, after such city or town shall in any manner have fixed the limits in said city or town in which intoxicating liquors may be lawfully sold, outside of such limits, he shall be guilty of a felony, etc., and where such sale is admitted by the defendant, and that he sold such liquors outside of said limits so fixed, the conviction is sustained and there is no reversible error. Davidson, Judge, not expressing an opinion.
80 Tex. Crim. 356Le Gois v. State (1916)Affirmed
N. Bonner, Judge. J. B. Le Gois was convicted of selling intoxicating liquors in the corporate limits of the city outside the territory wherein saloons could be licensed, and he appeals.
80 Tex. Crim. 363Sapp and Sapp v. State (1916)
The opinion states the case.
80 Tex. Crim. 373Tippett v. State (1916)
1. —Carrying Pistol—Judge Corporation Court—Peace Officer. A judge of a Corporation Court is a peace officer under section 12, article 5, of the Constitution of Texas, and has a right to carry a pistol, although he is not in the discharge of any official duty. Following Jones v. State, 65 S. W. Rep., 92. 2. —Same—Judicial Construction—Stare Decisis. See opinion for a discussion of the various articles in the Penal Code in which the writer of the opinion holds that if the question of carrying the pistol by certain officers was not stare decisis, he might hold differently, but bases his opinion of affirming the judgment on Jones v. State, supra.
80 Tex. Crim. 374Clark v. State (1916)
The opinion states the case.
80 Tex. Crim. 376Leach v. State (1916)
The opinion states the case.
80 Tex. Crim. 383Ferguson v. State (1916)
The opinion states the case.
80 Tex. Crim. 383Ferguson v. State (1916)Reversed and dismissed
1. Indictment and Information <@=^128 — Joinder of Offenses in One Count. An indictment for aiding and abetting the cashier of a state bank in violating Pen. Code 1911, art. 523, which declares guilty of felony a bank officer who embezzles or willfully misapplies any of its funds, held to be in one count only. [Ed. Note. — For^other cases, see Indictment and Information, Cent. Dig. §§ 403-413; Dec. Dig. <§=3128.] 2. Indictment and Information <§=> 137(6'— Certainty — Grounds for Quashing. An indictment for aiding and abetting the cashier of a bank in violating Pen. Code 1911, art. 523, held open to motion to quash, on the ground that its language and allegations are confused, indefinite, and unintelligible. [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 486; Dec. Dig. <®=>137(6).] 3. Indictment and Information <@=xol25(27) —Separate Counts — Separate Offenses. Pen. Code 1911, art. 523, declaring guilty of felony an officer of a state bank who embezzles, abstracts, or willfully misapplies its funds, prescribes three separate and distinct offenses, which should be charged in separate counts, and not three ways in which a given offense can be committed, which may be alleged con-junctively. [Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. <®=»125(27).] 4. Embezzlement <&=11(1) — Offenses—“Embezzle’ ’ — ‘ ‘Abstract’ ’ — >Villfully “Misapply.” Within Pen. Code 1911, art. 523, declaring guilty of a felony an officer or clerk of a state bank who “embezzles, abstracts, or willfully misapplies” its funds, “embezzle” refers to acts done for the benefit of the actor as against the bank, “misapply” covers acts having no relation to pecuniary profit or advantage to the doer, while “abstract” means only to take and withdraw from the possession and .control of the bank; and while “embezzlement” may include the offenses of abstraction and willful misapplication, either of those offenses may be committed without embezzlement. [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 9; Dec. Dig. <®=>11(1). For other definitions, see Words and Phrases, ■First and Second Series, Abstract; Embezzle; Misapply.] 5. Indictment and Information <S=>138 — Motion to Quash — Grounds. That the offense is not set forth “in plain and intelligible words,” as required by Code Cr. Proc. 1911, art. 451, subd. 7, by article 576 made ground for motion to quash the indictment, is embraced in a motion to quash because “the language and allegations thereof are confused, indefinite, and unintelligible.” [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. <S=»138.] 6. Indictment and Information <@=>138 — Motion to QuAsn — Grounds. The ground of motion to quash an indictment, that it does not charge any offense against the laws of the state, is sufficient within Code Cr. Proc. 1911, art. 575, providing that an exception of substance to an indictment is that it does not appear from its face that an offense against the law was committed by defendant. . [Ed. Note.- — Eor other cases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. <S=s>138j 7. Criminal Law <©=^1133 — Appeal—Attacking Indictment. Validity of an indictment as to substance may be attacked at any time, even for the first time on motion for rehearing. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. ‘<S==>1133.] 8. Indictment and Information @=»196(7)— Ground for Quashing — Duplicity. That an indictment is duplicitous on its face is a defect of substance, ground for quashing which can be raised at any time. [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 635; Dec. Dig. <®=»196(7).]
80 Tex. Crim. 391Kilpatrick, Jr. v. State (1916)
"I.—Murder—Provoking Difficulty—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of provoking a difficulty, a charge thereon was reversible error. 2. —Same—Counter Proposition—Rule Stated. Where the question of provoking a difficulty vel non is in the case, and the court charges thereon, a counter proposition to this for the defendant should be given; as provoking a difficulty is never in the case, except where self-defense is, also an issue. 3. —Same—Charge of Court—Arrest—Right of Officer. Where, upon trial of murder, the evidence raised the issue of defendant’s right as an officer to make arrests, the jury should have been told under what circumstances defendant would be authorized to make an arrest, where the matters all occurred near him and in his presence. 4. —Same—Evidence—Impeaching Witnesses—Telegram. Where, upon trial of murder, it became important to introduce in evidence a certain telegram which the State’s witnesses had signed, in which they stated that the deceased was killed by a Mexican instead of the defendant, the court should have granted an order requiring the production of said telegram.
80 Tex. Crim. 394Warbington v. State (1916)
1. —BTurder—Sufficiency of the Evidence—Practice on Appeal. The legal question as to the sufficiency of the evidence is not to be measured by what was not proved and might have been proved to strengthen the case, but the question is, whether that which was introduced was sufficient, and if it is, the conviction is sustained, although there were conflicts in the testimony. 2. —Same—Evidence—Acts of Defendant—Motive. Upon trial of murder, there was no error in admitting testimony that defendant had illicit relations with a State’s witness, concerning whom the homicide resulted; besides, the bill of exceptions was insufficient. 3. —Same—Evidence—Non-expert Testimony. Where, upon trial of murder, the evidence tended to show that the homicide occurred at night, there was no error in refusing to admit testimony that defendant could not see at all in the dark; this being a conclusion of the witness, who was not an expert; besides, the bill of exceptions was insufficient.
80 Tex. Crim. 398Wood v. State (1916)
The opinion states the case.
80 Tex. Crim. 411Ex Parte Lovell (1916)
Habeas Corpus—Bail. Where defendant was charged with murder and resorted to the writ, of habeas corpus for the purpose of obtaining bail, which was denied, and upon appeal to this court, bail is granted.
80 Tex. Crim. 412Ex Parte Lovell (1916)
Habeas Corpus—Murder—Bail—Practice on Appeal. In passing on the question of the amount of bail, this court must take into consideration the character of case made by the evidence for the State as well as that of the defendant, and if murder in the first degree is shown, the amount of bail should not be nominal.
80 Tex. Crim. 413Lunsford v. State (1916)
I-—Theft—Information—Name of Party Injured.—Idem Sonans. Where the pleadings alleged that the cotton was stolen from “Dad” McKeg, and that he was the owner, etc., and the proof showed that his initials were J. D. and that his name was spelled McOaig, but that he was known and called as alleged in the information, and that bis name was spelled both ways, etc., this was idem sonans. Z.—Same—Evidence—Describing Location—Letters—Inquiry—Observations—Tracks. Upon trial of petty theft, there was no error in admitting testimony describing location and routes, and the letters found on the shoulder straps of the sack in which the stolen cotton was contained, and that the owner tried to find out by inquiry where the cotton came from; that he made observations on the ground of certain tracks, etc., without stating, what he learned by making the inquiry, there was no reversible error. 3. —Same—Evidence—Tracks—Shoes—Arrest. In the absence of a showing that defendant was under arrest when he made certain statements, there was no error in admitting them, nor in admitting testimony as to the measurement of tracks by certain shoes. 4. —Same—Evidence—Hearsay. Upon trial of petty theft, it was error to admit in evidence testimony as r to what witness heard in the absence of the defendant and which was clearly hearsay. 5. —Same—Evidence—Other Offenses—Buie Stated. The rule is that when an extraneous crime is a part of the res gestae or tends to connect defendant with the offense for which he is on trial, proof of same is admissible, but testimony showing that other goods were identified by another person than the witness was hearsay and inadmissible. 6. —Same—Requested Charge. Where the court’s charge on circumstantial evidence was substantially the same as set out in the requested charge, there was no error in refusing the latter. 7. —Same—Evidence—(Sufficiency of the Evidence Where, upon trial of petty theft, the evidence was sufficient to sustain the conviction, although wholly circumstantial, there was no error in refusing a requested charge to acquit.
80 Tex. Crim. 416Perkins v. State (1916)
1.—Labor Law—Control and Construction of Work—Insufficiency of the Evidence. Where, upon trial of a violation of the eight-hour labor law, the evidence showed that defendant had no authority to issue any orders or to manage or control the construction work, or to employ or discharge any hand or laborer or to issue any orders to them, or to require or permit the laborers on the construction work to work or not to work thereon, and that these laborers were, -controlled by other parties, the conviction could not be sustained. .2.—Same—Words and Phrases—Permit. The word “permit,” in the sense in which it is used in the eight-hour labor 'statute, pertains to the authority or control of the employer or contractor over the employees or laborers, and there must be a corresponding relation by which the laborer works with the permission of his contractor 'or employer or the man who has him under authority; and where the evidence did not show this, the defendant could not be guilty of permitting laborers to work more than eight hours a day.
80 Tex. Crim. 418Samples v. State (1916)
1. —Concealing Stolen Property—Bills of Exception—Extending Time. Where the trial court lasted over eight weeks, and the order of the court extending the time in which the bills of exception could be filed was more than thirty days after final judgment, such order was not authorized and the bills of exception can not be considered on appeal; however, the statement of facts being filed within ninety days authorizing such filing, will be considered. 2. —Same—Question of Pact—Sufficiency of the Evidence. Where, upon trial of receiving stolen property, etc., the defendant by his evidence claimed that the property was not stolen, but was won at a game of cards, and this issue was submitted to the jury who found against the defendant, there was no reversible error. 3. —Same—Accomplice—Charge of Court—Motion for Mew Trial. Where, upon trial of receiving stolen property, etc., the court’s charge was defective, in submitting the issue of accomplice testimony, but no exception was taken thereto at the time, but the question was only generally raised in the _ motion for new trial, and no exception was taken to the court’s refusal to sub- ' mit a special charge thereon, the question can not be revised on appeal. 4. —Same—Mewly Discovered Evidence—Motion for Mew Trial—Recognizance. Where the defendant had been sentenced and had entered into a recognizance several days before his additional motion for new trial had been filed, and did not place himself in such condition as to reinstate the trial court’s authority to act thereon, there was no error in not considering the same as to the newly discovered evidence set out therein, although the same may have presented grounds for new trial and there was no reversible error.
80 Tex. Crim. 421Speers v. State (1916)
1. —Disorderly House—Ownership—Deed—Certified Copy—Three Days Notice. Where, upon trial of keeping a disorderly house, the question of ownership of the premises was a contested issue, it- was reversible error to permit the State to introduce in evidence the record of a deed to the defendant for said premises without having notified defendant in proper time and without procuring a certified copy thereof and filing it, and giving three days notice to defendant before the trial. The rule, of course, is diil'erent where the original deed is produced-Following Gould v. State, 61 Texas Grim. Rep., 195. 2. —Same—Evidence—Hearsay. Upon trial of keeping a disorderly house, it was improper to admit in evidence testimony as to what others told the witness; although in the light of all the testimony, this was not reversible error. 3. —Same—Circumstantial Evidence—Charge of Court. Where the evidence was direct, there was no error in the court’s failure to give a charge on circumstantial evidence. 4. —Same—Special Defense—Plea of Not Guilty—Charge of Court. Where, upon trial for keeping a disorderly house, the defendant pleaded not guilty, there was no error in the court’s refusal of requested charges on special defenses, the charge of the court being otherwise sufficient. 5. —Same—Charge of Court—Weight of Evidence. Upon trial of keeping a disorderly house, there was no error in the court’s refusal to give a charge that the jury take into consideration the location of the alleged house, as this was a charge on the weight of the evidence. 6. —Same—Evidence—Reservation District, Upon trial of keeping a disorderly house, there was no error in admitting testimony that the house in question was in the reservation district of the city, and the fact that others than prostitutes resided there, was a question for argument only. f
80 Tex. Crim. 423Bell v. State (1916)
Theft from Person—Sufficiency of the Evidence. Where, upon trial of theft from the person, the evidence was circumstantial, yet of such character that the jury were authorized to render a verdict of guilty, there was no reversible error.
80 Tex. Crim. 425Owens v. State (1916)
1. —Slander of Female—Insufficiency of the Evidence. Where, upon trial of slander of a female, the information alleged that the slanderous words were uttered in the presence of three named parties, the proof must show that the imputation was made under the circumstances as alleged, and where the evidence showed that the defendant uttered at different times and only to one person alleged at the time when the other persons alleged were not present, and the information contained only one count, the variance was fatal and the conviction could not be sustained. Following Knight v. State, 49 S. W. Rep., 383, and other cases. 2. —Same—Language Used—Variance,- Where the language used as alleged in the information is not the language to which the witnesses testified, the variance is fatal. Following Simer v. State, 62 Texas Grim. Rep., 514. 3. —Same—Charge of Court—Election by State. The court having admitted testimony that defendants made the slanderous declaration at different times to only one of the parties alleged in the information, should at least have elected the transaction upon which a conviction could be based. However, it was error to admit this character of testimony, as the allegation and proof must correspond.
80 Tex. Crim. 428Deisher v. State (1916)
1. —Rape—Sufficiency of the Evidence. Where, upon trial of rape upon a female under the age of consent, the evidence sustained the conviction, there was no reversible error. 2. —Same—Evidence—Suppressing Testimony. Where, upon trial of rape upon a female under the age of consent, two important State’s witnesses testified against the defendant, and it appeared that the defendant knew that they would do so, there was no error in admitting testimony to show that the defendant had been trying to prevent them from testifying against him and to thereby suppress their testimony or prevent them from testifying to the truth against him. ■ 3. —Same—Evidence—Bias in Eavor of Defendant—Witness. Where, upon trial of rape, a witness had testified in behalf oi the defendant, there was no error to permit the State, on cross-examination, to show that the witness was a good friend of the defendant; that he was doing what he could to help him and was surety on his several bonds, etc. Following Magruder v. State, 35 Texas Crim. Bep., 214. 4. —Same—Evidence—Character of Witness. Upon trial of rape, there was no error to permit the State, on cross-examination of the defendant’s witness, to ask him whether he had ever been indicted, to which the witness answered that he had a fair record, etc. Following Harding v. State, 49 Texas Crim. Bep., 601, and other cases. „ 5. —Same—Evidence—Age of Injured Female. Where upon trial of rape upon a female under the age of consent, there was no dispute of the fact that the assaulted girl at the time of the. assault was just past thirteen years of age, the admission of testimony with reference to á torn leaf from the Bible was immaterial, and presented no reversible error. Following Haywood v. State, 61 Texas Crim. Bep., 92, and other cases; besides, the bill of exceptions was defective. 6. —Same—Evidence—Bebuttal Testimony. Where, upon trial of rape upon a female under the age of consent, the assaulted girl testified positively to the act of sexual intercourse with defendant, but admitted on cross-examination that just after the act of intercourse she had several times denied the same, there was no error in permitting said female to testify that her sister had talked with her and tried to get her not to tell anything on the defendant; it appearing that defendant had - attempted to induce all the State’s witnesses to testify in his behalf and not against him. 7. —Same—Argument of Counsel. Where, upon trial of rape, it appeared on appeal that the argument of the district attorney was partly in response to that of defendant’s counsel, and that the rest of it was entirely proper, there was no error, in the absence of a requested charge, not to consider the same. Following Mooney v. State, 76 Texas Crim. Bep., 339, 176 S. W. Bep., 52, and other cases. 8. —Same—Jury and Jury Law-—Challenge for Cause. In the absence of a bill of exceptions showing that defendant had exhausted his challenges, that the jurors to whom he objected sat on his case, or that an improper juror was forced upon him, there was no reversible error; however, it appeared from the record that said jurors were qualified and competent.
80 Tex. Crim. 432Gillespie v. State (1916)
The opinion states the case.
80 Tex. Crim. 442Wilson v. State (1916)
The opinion states the case.
80 Tex. Crim. 446Whitcomb v. State (1916)Affirmed, and motion for rehearing overruled
Appeal from Anderson County Court; E. V. Swift, Judge. Mrs. Lacy Whitcomb was convicted of vagrancy, and appeals.
80 Tex. Crim. 446Whitcomb v. State (1916)
1. —Vagrancy—Recognizance—Appeal Bond—Rule Stated. An appeal in a misdemeanor case tried in the County Court, can only be perfected by entering into a recognizance in open court. Following Maxey v. State, 41 Texas Grim. Rep., 556, and other cases. An appeal bond will not answer the purpose of a recognizance, nor confer jurisdiction on the Court of Criminal Appeals. Following Palmer v. State, 63 Texas Grim. Rep., 614, and other cases, and where the appellant was convicted of vagrancy in the County Court, and filed an appeal bond, this court had no jurisdiction. 2. —Same—Recognizance—County Clerk—Nunc Pro Tunc—Minutes of the Court. Where the county judge certified that he in fact took a recognizance, but that it was not entered in the minutes of the'court, and it appeared from the record that the lower court had adjourned and this court had dismissed the appeal, that the county clerk after adjournment of court, without permission of the court, added to the minutes of the court a copy of the instrument filed, this gave no jurisdiction to this court, even if the lower court ordered the bond entered nunc pro tunc. Following Quarles v. State, 37 Texas Grim. Rep., 362, and other cases. 3. —Same—Rule Stated—Recognizance. In order to give this court jurisdiction, it is necessary not only that the recognizance be taken, but that such recognizance be entered of record during the term at which the appeal is taken. Following Knowlton v. State, 75 Texas Crim. Bep., 8.
80 Tex. Crim. 449Caldwell v. State (1916)
The opinion states the case.
80 Tex. Crim. 450Jennings v. State (1916)Reversed and remanded
1. —Assault to Rape—Eormer Jeopardy—Burglary—Distinct Offense. Where, upon trial of assault with intent to rape, defendant’s plea of former jeopardy alleged that he had formerly been indicted for burglary with intent to ravish the alleged female at the same time and place, and had been acquitted?, there was no error in sustaining an -exception to this plea, as the offenses are distinct and separate under article 1317, Penal Code, et seq 2. —Same—Evidence—Res Gestae. Upon trial of assault with intent to rape, there was no error in admitting in’ evidence the statements of the alleged assaulted female soon after the occurrence, and also testimony as to the extent of her injuries and condition of her clothes and surroundings. g,—Same—Evidence—Character of Prosecutrix. Upon trial of assault with intent to rape, there was no error in refusing to admit testimony that the alleged assaulted woman had immoral relations with other men. Following Wood v. State, recently decided. 4.—Same—Charge of Court—Self-defense—Theory of Defense. Where, upon trial of assault with intent to rape, the defendant testified that he had sexual intercourse with the alleged female with her full consent at the time alleged in the indictment, and after the act, the woman assaulted him and that his assault upon her was wholly in self-defense from his standpoint, a failure of the court to submit this phase of the evidence was reversible error.
80 Tex. Crim. 452Pecht v. State (1916)
1. —Carrying Pistol—Evidence—Res Gestae. ' Where, upon trial of unlawfully carrying a pistol, the State was permitted to introduce testimony as to the details of the difficulty during which it was claimed the defendant exhibited the pistol, there' was no reversible error, as it was part of the res gestae. 2. —Same—Argument of Counsel—Verbal Charge. Where, upon trial of unlawfully carrying a pistol, the State’s attorney com- . mented on matters which were not in evidence, as to the reputation for truth and veracity of one of the witnesses, about which there was no testimony, and to which an objection was sustained, and the jury were orally told to disregard this part of the argument, but the request of the defendant that the jury be instructed in regard to this matter that they should not consider any private knowledge that they might have of the witness for truthfulness, etc., was refused by the court, the same was reversible error, as such argument under the facts was harmful to the defendant, and the court’s verbal instruction to the jury was not sufficient. Prendergast, Presiding Judge, dissenting. 3. —Same—Rule State—Charge of Court—Verbal Charge. The statute prohibits verbal charges given the jury in misdemeanor cases, except by consent of the parties, and a verbal instruction by the court is not in accordance with the statute, which is mandatory, and a verbal instruction to the jury to disregard State’s counsel’s argument was not sufficient, where the defendant requested further that the jury should be properly instructed in regard to this matter. Prendergast, Presiding Judge, dissenting.
80 Tex. Crim. 457Harrison v. State (1916)
The opinion states the case.
80 Tex. Crim. 461Ray v. State (1916)
The opinion states the case.
80 Tex. Crim. 465Carr v. State (1916)
The opinion states the case.
80 Tex. Crim. 468Manicchia v. State (1916)
Aggravated Assault—Jury and Jury Law—Criminal District Court. Where, upon trial of aggravated assault in the Criminal District Court of Dallas county, a jury of txvelve men were impaneled, and a verdict was returned finding the defendant guilty by eleven of the jurors, the other refusing to concur, the same xvas reversible error. Following Cortonelia v. State, recently decided, and other cases.
80 Tex. Crim. 469Carter v. State (1916)
The opinion states the case.
80 Tex. Crim. 470Waggoner v. State (1916)
The opinion states the case.
80 Tex. Crim. 475Bell v. State (1916)
The opinion states the case.
80 Tex. Crim. 478Marion v. State (1916)
The opinion states the case.
80 Tex. Crim. 485Edwards v. State (1917)
1.—Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence was sufficient to support the conviction under a proper charge of the court, there was no reversible error. 3.—Same—Continuance—Motion for New Trial—Presumption. Where the testimony of the absent witness would have been merely cumulative, and the trial court heard the evidence upon the motion for new trial as to this matter, it must be .presumed that the action of the court in overruling the motion was sustained by the testimony heard, where the record did not disclose the same. Following Ethridge v. State, 74 Texas Grim. Rep., 635, and other cases. 3. —Same—Evidence—Credibility of Witness—Remarks by Court. Where, upon trial of murder, the nephew of the defendant, who testified for the latter, denied that in a conversation with the deceased, just before the homicide, he told him that the defendant would settle with him for making a certain statement; whereupon, the State introduced a witness who testified in substance that said defendant’s witness made said statement to the deceased, and in ruling upon the matter, the court remarked that he had admitted the testimony to enable the jury to pass on the credibility of said defendant’s witness, and afterwards, on request of the defendant, instructed the jury not to consider the testimony of said State’s witness for any purpose, there was no reversible error. 4. —Same—Evidence—Conversation—Conspiracy—Credibility of Witness. Upon trial of murder, there was no error in admitting in evidence the whole of' a conversation between one of defendant’s witnesses and the- deceased which included the statement of said defendant’s witness that the defendant would settle with the deceased, first, as it was part of the conversation introduced in evidence by the defendant; it was a circumstance tending to show a conspiracy between the witness and the defendant to kill deceased; and third, it enabled the jury to pass upon the credibility of said witness, and the court’s remark to that effect was not on the weight of the testimony; besides, the whole matter was withdrawn from the jury. Following Miller v. State, 79 Texas Grim. Rep., 9, and other cases. 5. —Same—Evidence—Allusion to Former Trial. Where, upon trial of murder, each side in the examination and cross-examination of many of the witnesses, repeatedly asked them whether or not they had testified on the former trial of the instant case, etc., and the jury was made aware thereby of the fact that a previous trial had been had, and the court instructed the jury not to consider the question which was asked about a new trial, and properly limited the testimony to purposes of impeachment, etc.,.there was no reversible error. Following Witty v. State, 75 Texas Grim. Rep., 440, and other cases. 6. —Same—Self-defense—Charge of Court—Unlawful Attaok. Where, upon trial .of murder, the testimony did not raise any issue as to an attack by the deceased or any other unlawful attack, and the court fully instructed the jury on defendant’s claimed self-defense, there was no reversible error in the court’s failure to submit a charge under article 1107, Penal Code. 7.—Same—Manslaughter—Charge of Court. Where, upon trial of murder, the court submitted a correct charge on manslaughter, applicable to the facts of the case, there was no reversible error.
80 Tex. Crim. 491Watson v. State (1917)
The opinion states the case.
80 Tex. Crim. 497Smith v. State (1917)
The opinion states the case.
80 Tex. Crim. 498Rasberry v. State (1917)
1. —Murder—Principals—Charge of Court, Where, upon trial of murder, the issue of principal was raised by the evidence as to whether defendant was present during the commission of the offense, aiding, etc., the court should have given the requested charge that the mere presence of the defendant at the time and place of the difficulty, was not sufficient to constitute him a principal, but the evidence must show that the defendant did something which would bring him within the statutory rule constituting him a principal, and unless this was shown by the evidence to the exclusion of a reasonable doubt, defendant would be entitled to an acquittal even if the offense was committed by another in his presence. 2. —Same—Objections .to Charge of Court—Bill of Exceptions. Where the bill of exceptions reserved to the overruling of the objection to the charge of the court and a refusal of a requested charge, was in compliance with the law, the same was sufficient. . . 3.—Same—Question of Pact—Defense—Affirmative Charge—Buie Stated. Wherever an issue is presented for solution by the jury under the facts, an appropriate charge should be given, and if it is favorable to the defendant, an affirmative charge must be given so that the jury may pass directly upon that question in reaching their verdict.
80 Tex. Crim. 501Gunter v. State (1917)
The opinion states the case.
80 Tex. Crim. 505McCulloch v. State (1916)
1.—Carrying Pistol—Notice of Appeal—Recognizance. Where, upon appeal from a conviction of unlawfully carrying a pistol, the record failed to show that notice of appeal had been entered, the jurisdiction of this court does not attach; besides, the record as presented, would require an affirmance. 3.—Same—Affidavits—N otice Where, upon rehearing, the appellant undertook by affidavits to show that he gave notice of appeal in the trial court but it was not entered of record, this is an insufficient showing. 3. —Same—Statement of Pacts—Transcript—Practice on Appeal. Where the transcript did not contain the order of the court either granting or refusing to grant the time for filing the statement of facts, and the court could not have granted more than twenty days beyond the term of court for filing said statement and bills of exception, the same could not be considered on appeal. 4. —Same—Unreasonable Delay—Transcript. See opinion calling attention of the county authorities for the delay in filing transcript, etc., which requires an investigation.
80 Tex. Crim. 507Marshbanks v. State (1917)
The State’s testimony showed, substantially, that defendant and deceased were negro tenants, and lived in a cabin in separate rdoms; that while apparently friendly, they had had some former altercations growing out of the weighing of cotton some time before the homicide, possibly a week or so before, and that the defendant on the morning of the day of the killing had made threats to kill the deceased, but that a day before the killing both defendant and deceased, with…
80 Tex. Crim. 511Terry v. State (1917)
Tried below before the Hon. H. F. O’Neal. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary.
80 Tex. Crim. 512Miller v. State (1917)
1. —Theft of a Horse—Intent to Defraud—Original Taking—Insufficiency of the Evidence. Where, upon trial of theft of a horse, the evidence showed no fraudulent intent on the part of the defendant at the time he took the alleged stolen horses to deprive the owner of the value thereof, hut showed that the same, were taken under a claim of right, the conviction could not be sustained. 2. —Same—Requested Charge—Venue, Where, upon trial of theft of a horse, the evidence showed that there was no fraudulent intent on the part of the defendant at the time of the original taking, the court should not have submitted a charge requested by the State with reference to venue of the ease. ,
80 Tex. Crim. 514Dewberry v. State (1917)
The opinion states the case.
80 Tex. Crim. 516Hamilton v. State (1916)
The opinion states the case.
80 Tex. Crim. 521Stockton v. State (1917)
1.—Assault to Rape—Evidence—Res Gestae—Declarations. Upon trial of assault with intent to rape, there was no error in admitting testimony as to what prosecutrix told the witnesses upon reaching the house, after she had jumped out of the buggy and escaped from the defendant about two hundred yards from said house, to which she went as quick as she could and while under great excitement told of defendant’s assault upon her, and exhibited her arm where he had bit her, etc. Following Castillo v. State, 31 Texas Grim. Rep., 145, and other cases. 3.—Same—Evidence—Declarations of Prosecutrix. Where, upon trial of assault with intent to rape, where the prosecutrix had theretofore disobeyed a subpoena for which the case was continued, and defendant, on cross-examination, proved that she had absconded as a witness, there was no error in permitting her to testify as to the reason why she left at the time because of threats of the defendant, etc., to disgrace her; the court properly limiting the testimony. 3. —Same—Evidence—Declarations of Third Parties, Upon trial of assault with intent to rape, where prosecutrix had testified that during said assault defendant had bit her on the arm, there, was no error in admitting testimony that the witness saw a black spot on prosecutrix’s arm two or three days after the allaged assault, nor in admitting testimony that prosecutrix complained to her father of defendant’s assault upon her the first time she saw him. 4. —Same—Aggravated Assault—Charge of Court—Consent. Where, upon trial of assault with intent to rape and a conviction for aggravated assault, the court charged on undue familiarity, and the evidence showed that this was without the consent of the prosecutrix, there was no error in the court’s failure to submit requested charges that if this was done with prosecutrix’s consent, to acquit the defendant, all the evidence showing to the contrary. 5. —-Same—Charge of Court—Assault to Rape. Where, upon trial of assault with intent to rape and a conviction for aggravated assault, a complaint of the charge of the court upon said offense and a refusal of a requested charge thereon, need not be considered on appeal, as that offense passed out of the case; besides, such charge of the court was correct. 6. —Same—Aggravated Assault—Sufficiency of the Evidence. In an indictment for an assault with intent to rape, is included an aggravated assault in any and every way- by which such an assault may be committed, and when evidence on the trial does not establish a charge of an assault with intent to rape only, and exclude an aggravated assault, then it is incumbent upon the trial judge to submit the question of aggravated assault in the general terms in which the trial judge submitted that question in the instant case. Following Ward v. State, 68 Texas Grim. Rep., 154, and there was no error in refusing a requested charge on aggravated assault which was not applicable to the facts. 7. —Same—Aggravated Assault—Charge of Court—Undue Familiarity— Sense of Shame. Where, upon trial of assault with intent to rape and a conviction of aggravated assault, the defendant’s requested charges upon the issue of undue familiarity, sense of shame, etc.., were not applicable to the facts, and the court gave a correct charge on aggravated assault, there was no error in the court’s failure to submit defendant’s requested charges thereon.
80 Tex. Crim. 531Hipple v. State (1916)
1.—Assault With an Attempt to Rape—Former Jeopardy. Where, upon trial of an attempt to rape, the defendant interposed his plea of former jeopardy and alleged that on a former trial, on the same indictment, after defendant had pleaded not guilty, the case was continued without the express consent of defendant who stood mute, neither objecting nor consenting, whereupon the jury was discharged and the case continued because the main prosecuting witness was not competent, and the court, on the instant trial, refused to submit to the jury said plea of former jeopardy, the same was reversible error. Prendergast, Judge, dissenting. 3.—Same—Former Jeopardy—Judicial Construction—Constitutional Law. Jeopardy is not defined in the Constitution, but its meaning has been ascertained by our courts before the adoption of the Constitution, and said prior interpretation is binding. Following Powell v. State, 17 Texas Grim. App., 345. And a person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon indictment or information which is sufficient in form and substance to sustain a conviction. 3.—Same—Common Law Rule—Statutory Rule—Former Jeopardy. The common law rules with reference to the principles relating to jeopardy have -been adopted by our statutes where not in conflict with some of the written laws of the State, 'and the procedure with reference to them is upon the same footing, and where jeopardy attaches,' and a mistrial is ordered and the jury discharged without the consent of the defendant, or some overruling necessity, a plea of former jeopardy will lie. 4»—Same—¡Plea of Former Jeopardy—Demurrer—Practice—Consent. Where the plea of former jeopardy was stricken out on demurrer, the same must be considered as true, and where said plea raised an issue of fact as to whether the trial court had the consent of the defendant to discharge the jury, the failure to submit the same to the jury was reversible error, unless under article 616, Code Criminal Procedure, the trial court could discharge the jury without defendant’s consent, and this under the instant case could not be held as a matter of law, but was a question of fact and should have been submitted to the jury. 5. —Same—Attorney and Client—Rule Stated. Where, upon trial of attempt to rape, the defendant pleaded former jeopardy and alleged that at a former trial the jury was discharged on account of the incompetency of the State’s witness, and the case continued by consent of defendant’s counsel, but without the personal consent of the defendant who stood mute, held, that the defendant was not bound thereby, and the law does not impose upon the defendant in a criminal case the duty of protesting against the discharge of the jury where it was not authorized by law. Prendergast, Judge, dissenting. 6. —Same—Statutes Construed—Discharge of Jury—Mistrial. Article 616, Code Criminal Procedure, gives the trial court authority to discharge the jury without the consent of the defendant under some unexpected occurrence since the trial commenced which no reasonable diligence could have anticipated, and grant a continuance, but the fact that the attempt to rape was upon a child only three years old, who was interrogated by the court and counsel, and found incompetent, is not such an unexpected occurrence as contemplated by the statute. Following Pizano v. State, 20 Texas Grim. App., 139, and this should have been submitted to the jury as a question of fact. Prendergast, Judge, dissenting.
80 Tex. Crim. 543Ex Parte Drane (1917)
1.—Habeas Corpus—Jurisdiction—Rule Stated. Under article 63, Code Criminal Procedure, it is provided that when two or more courts have concurrent jurisdiction of any offense against the penal laws of the State, the court in which an indictment or complaint shall first be filed shall retain jurisdiction of said offense to the exclusion of all other courts, yet relator is not entitled to a discharge on habeas corpus when arrested on process issued from the court in which the case was subsequently filed. Following Pitt-cock v. State, 73 Texas Grim. Rep., 1, and other cases. 3.—Same—Habeas Corpus—Practice—Void and Voidable. The writ of habeas corpus can not serve to discharge relator on account of errors or irregularities which render the proceeding merely voidable, but only when they are absolutely void. It is not available to establish former jeopardy, conviction, or acquittal. 3.—Same—Information—Indictment. An indictment is only required in felony cases, and misdemeanors may be prosecuted by either indictment or information, and the prosecution charging a misdemeanor is, therefore, valid and not void. 4. —Same—Habeas Corpus—Bail—Practice. The rule that the respondent must produce evidence to show the guilt of the relator in a habeas corpus proceeding for hail does not apply in a misdemeanor case where hail was granted by the Corporation Court, and all that it is necessary for the officer to show is that the relator is held under process from the County Court. Distinguishing Ex parte Newman, 38 Texas Grim. Rep., 164. 5. —Same—Information—Rule Stated. Matters which go to the manner and form of informations are not available on application for writ of habeas corpus, hut must be considered, if raised by motion or plea, in the trial court, and where the information charges an offense, although in a defective manner, this court will not discharge relator. Following Ex parte Beverly, 34 Texas Grim. Rep., 644, and other eases. 6. —Same—Pure Pood Law—Adulteration—Constitutional Law. The so called pure food law (articles 609 and 700, Vernon’s Penal Code) is valid, and provides for the punishment of the sale or exchange of any article of food which is adulterated, and where the information alleged that the defendant offered and exposed for sale certain butter which was adulterated with water, etc., so as to reduce and lower and injuriously affect its quality and strength, the same charged an offense, and relator could not claim a discharge on writ of habeas corpus because the offense was defectively alleged. Following Ex parte Cox, 53 Texas Grim. Rep., 240, and other cases. This is a matter for the trial court to pass upon. 7. —Same—Case Stated—Concurrent Jurisdiction—Habeas Corpus—Practice. Where relator was charged with a misdemeanor growing out of an alleged violation of the pure food law, he was not entitled to a discharge on a writ of habeas corpus on the ground that a complaint was first filed in the Corporation Court and subsequently on information in the County Court, for the same offense; and the case pending in the Corporation Court was dismissed, or that an indictment should have been required, or that the respondent had the burden of proof of relator’s guilt. Following Vaughn v. State, 32 Texas Grim. Rep., 407.
80 Tex. Crim. 547Johnson v. State (1917)
1. —Pursuing Occupation—Intoxicating Liquors—Agency. Where, upon trial of engaging in the occupation of selling intoxicating liquors in prohibition territory, defendant denied making any sale, the court correctly refused to submit the question of agency for the purchaser. 2. —Same—Impeaching Witness—Other Transactions. Where, upon trial of engaging in the business of selling intoxicating liquors in local option territory, defendant after laying the proper predicate introduced a witness who testified that on the next day after defendant was arrested for this offense he had a conversation with said State’s witness who stated that he never bought any whisky from defendant in his life, etc., it was not permissible, on cross-examination by the State, to show by said witness, that he worked in the barber shop of another who kept and sold whisky in his shop, said party being also indicted for a similar offense. 3. —Same—Evidence—Cross-examination. Where defendant was on trial of engaging in the business of selling intoxicating liquors in local option territory, and impeaching testimony was introduced by the defendant, there was no error, on cross-examination, to show that said witness drank a great deal of whisky, but it was not permissible to show by said witness as to where he got the whisky, and asking him if he were not a bootlegger, etc. 4. —Same—Evidence—Moral Turpitude—Misdemeanor. While it can be shown that a witness is legally prosecuted or convicted of a felony or a misdemeanor imputing moral turpitude when not too remote, yet he can not he made to testify that he was prosecuted or convicted'of a misdemeanor not involving moral turpitude, and it was reversible error to have him testify that he had been formerly convicted in a misdemeanor case for the illegal sale of intoxicating liquors.
80 Tex. Crim. 550Limon v. State (1917)
The opinion states the case.
80 Tex. Crim. 551Windham v. State (1917)
The opinion states the case. Prosecutrix testified that she and her husband lived together about two months before they separated, and that they had lived with defendant’s father, that she was not prevented from eating there, but that she left there because she didn’t feel it was right for her to eat off of his father and mother; that she could cook but not sew; that she was about sixteen 3-cars old, weighed about one hundred and nineteen pounds, and had always worked, and…
80 Tex. Crim. 552Norwood v. State (1916)
80 Tex. Crim. 568Rudy v. State (1916)
The opinion states the case.
80 Tex. Crim. 571Bowman v. State (1917)
1. —Aggravated Assault—Intent to Injure—Charge of Court. Where, upon trial of aggravated assault, the evidence raised the issue of unintentional injury, and the defendant. submitted a requested charge upon this phase of the case which was refused by the court, the same was reversible error. Following Carrel v. State, 77 Texas Grim. Rep., 344, and other cases. 2. —Same—Rule Stated—Intent to Injure. It has been held that where an intent to injure is a vital issue in the case of an assault, it is error to refuse to give instructions affirmatively submitting the defendant’s theory. Following Warner v. State, 74 Texas Grim. Rep., 209, and other cases. 3. —Same—Case Stated—Intent—Accident—Charge of Court. Where, upon trial of aggravated assault by an adult female upon a child, defendant’s testimony raised the issue as to whether the blow was accidentally or intentionally made, this made it incumbent upon the court when properly requested to submit the issue of accident and intent to injure.
80 Tex. Crim. 573Waters v. State (1916)
1. —Murder—Evidence—Conclusions of Witness. ' Where, upon trial of murder, the defendant attempted to introduce testimony as to the conclusions of the witness about the deceased’s behavior before the homicide, there was no error in excluding the same; besides, this matter was established by the defendant himself and other witnesses. 2. —Same—Evidence—Immateriality of Testimony. Where, upon trial of murder, all the acts and sayings of both defendant and deceased on the morning of the killing were admitted in eyidence, there was no error in excluding testimony as to what time the mail arrived, and the people got their mail, etc., in the town where the killing occurred. 3. —Same—Argument of Counsel—Requested Charge. Where the State attorney’s argument was proper and the defendant merely objected thereto without a requested charge in writing, there was no reversible error. Following Edwards v. State, 75 Texas Crim. Rep., 647. 4. —Same—Evidence—Hearsay—Acts of Defendant. Where, upon trial of murder, the defendant proved by several witnesses each and every act of his in avoiding the deceased when he was about to meet him, there was no error in excluding hearsay testimony as to this matter. Following Hardeman v. State, 61 Texas Grim. Rep., Ill, and other cases. 5. —Same—Conduct of Judge—Witness Under Rule—Practice. Where, upon trial of murder, it developed that one of defendant’s witness, who was under the rule, had been told by the defendant as to what a certain State’s witness had testified to, whereupon the court reprimanded the witness, retired the jury to inquire further into the matter, and then .ordered the return of the jury, and just as they were entering the courtroom, the court in their hearing, said, “Assess his fine at twenty-five dollars,” and while the jury did not know who the fine was against, they supposed it was against the witness and the defendant, which was true, and in their deliberations discussed the matter, this under the facts of the instant case was reversible error, as it was calculated to impress the jury that it was done to discredit defendant and his witness. Following Scott v. State, 72 Texas Grim. Rep., 26, and other eases. Prendergast, Judge, dissenting. 6. —Same—Jury and Jury Law—Readmitting Testimony. Where, after retirement of the jury, they disagreed as to- the testimony of a certain State’s witness and wrote out interrogatories under direction of the court to be asked said witness, one of which was what the witness did when he saw deceased, and what from his attitude he thought he was about to do, and the court in the presence of the jury stated to them that this matter was not testified to by the witness, and he would not permit that question to be answered. Held, that the court could not inhibit the witness from repeating his testimony in reply to the query of the jury. Prendergast, Judge, dissenting. 7. —'Same—Evidence—Adequate Cause—Insult to Female Relative—Motive. Where the facts' constituting the testimony of the widow of the deceased were not communicated to the defendant before the homicide, so far as the evidence discloses, with reference to a transaction between the deceased and the defendant’s son, and which was an insult to the wife of the deceased calculated to arouse the passion of the deceased, its introduction in evidence against the defendant was prejudicial to his ease, and was, therefore, reversible error. Prendergast, Judge, dissenting. 8. —Same—Self-defense—Charge of Court. Where, upon trial of murder, the court’s charge on self-defense was given in rather a negative than a positive form, the defendant’s requested charge to the effect that he had the right to have the jury informed in the charge on self-defense that if he had the right to fire the first shot, then that right continued until the danger to his life had ceased, as viewed from his standpoint of the difficulty should have been given under the facts of the instant case. Following Stanley v. State, 62 Texas Grim. Rep., 306, and other cases. 9. —Same—Evidence—Habits of Deceased—Threats. Where, upon trial of murder, the question arose in connection with threats by the deceased against the defendant whether the former was in the habit of carrying his pistol in his automobile, this character of testimony was admissible under the facts of the instant case. Prendergast, Judge, dissenting.
80 Tex. Crim. 588Howard v. State (1917)
The opinion states the case.
80 Tex. Crim. 603Dolezal v. State (1917)
1. —Carrying Pistol—Remarks by Judge—Bill of Exceptions. In the absence of a bill of exceptions showing that any testimony was elicited .from the witness who from the statement of facts appeared to be an unwilling witness, the remarks of the judge that he was an unwilling witness, and that the prosecuting attorney could ask him leading questions as requested by him, was not reversible error. 2. —Same—Evidence—Rebuttal—Election by State. Where defendant claimed that the pistol- alleged to have been carried by Mm was broken and could not be shot, etc., there was no error in admitting testimony showing that two or three weeks prior to said time, the defendant had a pistol out in the road and fired it several times; besides, it was proper testimony in the absence of a demand that the State elect to establish the offense. Following Bradshaw v. State, 32 Texas Grim. Rep., 381. 3. —Same—Evidence—Rebuttal—Testimony Drawn Out by Defendant—Res Gestae. Where defendant claimed that the pistol which he was alleged to have car•ried was out of repair and could not be fired, there was no error in admitting testimony in rebuttal to show that during a certain difficulty with the State’s witness at the time alleged, he reached in his side pocket and drew a pistol; besides, part of the details of said transaction had been drawn out by the defendant. Following Muldrew v. State, 73 Texas Grim. Rep., 463, and other cases. 4. —Same—Sufficiency of the Evidence—Rebuttal—Election by State. Upon trial of unlawfully carrying a pistol, testimony that two or three weeks before the time alleged defendant carried a pistol in the public road and fired the same, was sufficient to sustain the conviction outside of the testimony that he carried the same at the time alleged, in the absence of a demand that the State elect.
80 Tex. Crim. 606Lyle v. State (1917)
1.—Fool Hall Law—Constitutional Law—Popular Vote—Local Option. The act of the Thirty-third Legislature, chapter 74, prohibiting the operation of pool halls, etc., by an election of the people in certain territory of the State, is unconstitutional. Following Swisher v. State, 17 Texas Grim. App., 441. Overruling Ex parte Francis, 72 Texas Grim. Rep., 304, and other eases. Prendergast, Judge, dissenting. 2. —Same—Rule Stated—Legislative Power—Conflict of Decisions. The legislative branch of the government has full authority to pass laws except in the particulars wherein it is restricted by the Constitution of the United States or forbidden by the express or implied provisions of the Constitution of the State, and unless it is clearly shown that the Legislature has exceeded its powers, the act will be upheld, and ordinarily, the court will not when once construed reopen the discussion; however, there being a conflict of decisions regarding the validity of this act in the courts of last resort, the question is reviewed. 3. —Same—Stare Decisis—Rule Stated—Constitutional Interpretation. So far as the operation of the principle of stare decisis is concerned, the decisions of the Supreme Court rendered before the criminal jurisdiction was transferred to this court, are in effect decisions by this court, and the rule laid down in State v. Swisher, supra, as affecting this case, still obtains, and the Constitution of 1876 has not destroyed any implied prohibition against the passage of local option legislation by popular vote except as pointed out in said Constitution, and section 20, "article 16, as well as section 23, article 16, etc., giving special authority to pass local option laws with reference to the prohibition of the sale of intoxicating liquors and the prohibition of stock running at large, etc., only emphasize the intention of the framers of the Constitution that, no such general authority of the Legislature to pass local laws exist, ’’rendergast, Judge, dissenting. 4. —Same—Judicial Construction—Constitutional Law—Rule Stated. The rule of judicial interpretation of constitutional provisions is so forcible that where a new Constitution is adopted without change of the rules laid down by the courts, the construction is adopted by the new Constitution, and becomes a part of it to the degree that it can not be changed even by a statute expressly undertaking to do so. Following Powell v. State, 17 Texas Crim. App., 345. 5. —Same—Grants to Municipal Corporations—Delegation of Legislative Authority—Distinction Drawn. There exists a distinction between legislation delegating authority to municipal corporations by charter privileges to determine by vote of the electors whether or not such privileges will be exercised, and legislation which authorizes the counties or subdivisions thereof by popular vote to adopt local option laws which are not authorized by the Constitution, but impliedly prohibited, and the decisions within our State emphasizing this distinction are well understood. Following Werner v. Galveston, 72 Texas, 22. 6. —Same—Municipal Corporations—Local Self-government—Constitutional Law. Municipal corporations are generally recognized as instruments of local self-government, and their powers, duties, and limitations are well defined in the Constitution, and statutes thereunder are complete in themselves and are general laws of the State pertaining to municipalities, and simply provide the means of incorporating, and until the "amendment of 1912, the Legislature had the power under the express provisions of the Constitution to pass special charters for certain municipal corporations, but all have a general limitation upon their powers, and are not in conflict with the rule adopted in State v. Swisher, supra. 7. —Same—Decisions Reviewed—Rule of Construction Adhered To. See opinion for a review of decisions in this State showing the proposition laid down in State v. Swisher, supra, that there was no legislative authority for the passage of the law like the pool hall law, except under the constitutional provisions, which specially limited such authority to. the passage of laws prohibiting the sale of intoxicating liquors,- etc., has been adhered to. 8. —Same—Decisions of Other States—Marked Conflict—Constitutional History. There is a marked conflict in the decisions of the courts of other States ujDon this subject, but without entering into a further discussion of them, it suffices to say that none of them are in jurisdictions with a constitutional history like ours, nor in which there has been legislative construction or judicial interpretation such as obtains in this State. 9. —Same—Stare Decisis—Decisions of Other States—Rule Stated. Rulings made under a similar legal system elsewhere may be cited and respected for their reasons, but are not necessarily to be accepted as guides, ■except in so far as their reasons commend themselves to the judicial mind. We are unable to find anything in our constitutional and judicial research upon "which to base a conclusion that the decision of the Supreme Court in following the rule in Swisher v. State is unsound; on the contrary we have pointed out much that, in our judgment, supports its correctness. Following Ex parte Mitchell, 177 S. W. Rep., 953, and other cases. 10. —Same—Power, of Suspending Law—Constitutional Inhibition. Under section 28, article 1, Constitution of Texas, no power of suspending laws of this State shall be exercised except by the Legislature, and by section 6, article' 7355, Revised Civil Statutes, the keeping of pool rooms or the use of pool tables for profit is expressly permitted, and this law is in force throughout tile State, and as chapter 74, Acts of the Thirty-third Legislature, suspends this .law which authorizes and licenses the maintenance of pool halls within any given territory, by delegating to a majority of the voters in such territory affected to do so, the latter is unconstitutional and invalid. Following Brown Cracker Co. v. Dallas, 104 Texas, 290, and other cases. Prendergast, Judge, dissenting. 11. —Same—Rule Stated—Delegating Power to Suspend Laws. It is conceived that the reason supporting the decisions of this State under the constitutional provisions that the Legislature has no power to delegate its authority to suspend laws either to the people or to other agencies of government, are sound, and the framers of the Constitution were not without foresight as to the mischievous consequences that might follow from extending to the Legislature the power to delegate its authority to suspend laws. Prendergast, Judge, dissenting.
80 Tex. Crim. 622Wilson v. State (1917)
Tried below before the Hon. John H. Tate. Appeal from a conviction of swindling; penalty, a fine of ten dollars. The opinion states the case.
80 Tex. Crim. 625Gray v. State (1917)
1.—Assault to Murder—Aggravated Assault—Charge of Court—Adequate Cause. Where, upon trial of assault with intent to murder, the defendant was convicted of that offense, and upon appeal complained that the trial court erred Yol. 80 Crim.-40 in not charging the law in regard to aggravated assault, and it appeared from the record that the alleged insulting conduct to defendant’s sweetheart occurred in ^ defendant’s presence and the alleged assault by defendant upon the party injured about twenty-four hours thereafter when they again met¡ he could not claim the benefit of sudden passion arising from the cause stated. S.—Same-^-CooIing Time—Charge of Court. Upon trial of assault to murder, the question of cooling time did not arise on the evidence so that a charge on aggravated assault should have been given from that viewpoint.
80 Tex. Crim. 627Waring v. State (1917)
The opinion states the case.
80 Tex. Crim. 629Bankston v. State (1917)
1. —Murder—Motion for New Trial—Notice of Appeal—Supplemental Motion—J urisdiction. Where defendant filed his motion and amended motion for new trial which the court overruled, and notice of appeal was given, and he thereafter filed "a supplemental motion for a new trial with the permission and upon the suggestion of the trial judge during the same term of court, and the motion to withdraw notice of appeal was granted but not entered of record, and the trial court awarded a new trial. Held, this was proper practice, and the appeal to this court was thereby concluded and the jurisdiction reattached to the trial court. 2. —Same—Notice of Appeal—Buie. Stated—Jurisdiction of Trial Courts. Under the present statute, as amended, notice of appeal may be entered nunc pro tune, and although not entered in the instant case, where the court suggested and permitted the filing of a supplemental motion for new trial after notice of appeal, it would amount to setting aside the former notice of appeal. See opinion for discussion of this matter, and upon what condition the jurisdiction reattaches to the District Court, again emphasizing the rule that the trial court had jurisdiction of its orders, judgments, and decrees during the term of court, with power to dispose of them as right and justice would suggest. Following ISundiek v. State, 59 Texas Grim. Hep., 9, and other eases. 3. —Same—Bight of Appeal—Notice of Appeal—Practice in District Court. Where the court overrules a subsequent motion for new trial, another notice of appeal should be given, but this would not apply where defendant obtains a new trial, and the former notice of appeal necessarily passes with it, and the jurisdiction reattaches to the trial court.
80 Tex. Crim. 632Adams v. State (1917)
The opinion states the case. Cited cases in Boren v. State, recently decided.
80 Tex. Crim. 635Boren v. State (1917)
1.—Gaming—Affidavit—Signature of Affiant—Information. Where, upon trial of gaming, upon motion to quash the affidavit because it was not signed by the affiant, before the State announced ready for trial the county attorney met this objection by having the affiant sworn who testified, that he did swear to the complaint and thought he had signed it, there was no error in permitting the affiant to then sign the complaint to comply with the requirement of the statute that the signature he appended to the complaint, and it was not necessary to file a new information. 3.—Same—Signature of Affiant—Statutes Construed. Under article 34, C. C. P., it is necessary that affiant attach his signature.
80 Tex. Crim. 637Holland v. State (1917)
1. —Murder—Manslaughter—Charge of Court—Converse Proposition. Where, upon trial of murder and a conviction of manslaughter, the State showed by circumstantial evidence that defendant and others acted together as principals in the commission of the offense, and the theory of the defense was that no such agreement or conspiracy existed, and the court only submitted the theory of the State in his charge on manslaughter, but did not submit the converse of the proposition to acquit the defendant in that event, the same was reversible error. Following Mitchell v. State, 36 Texas Grim.- Rep., 278, and other cases. 2. —Same—Evidence—Insanity—Expert Witness. Where, upon trial of murder and a conviction of manslaughter, one of the issues was the insanity of the defendant, and the defense introduced a physician who qualified himself as an expert to testify as sought by the defendant on the question of insanity, although he did not claim to be such an expert, it was reversible error not to permit such witness to testify as an expert as to his opinion either as to the facts he knew or his observation or upon a hypothetical question, and it was not required that such witness be an alienist or a specialist. 3.—Same—Independent Impulse—Principals. Where, upon trial for murder and a conviction of manslaughter the State’s theory was that the defendant and his two brothers engaged in a conspiracy or understanding to whip the deceased at any hazard, and the defendant contended that there was no such conspiracy nor understanding but that it was a fight of his own, when one of his brothers came upon the scene of his own initiative and killed the deceased, the court should in addition to the State’s theory, have submitted the defendant’s theory. Following Guffey v. State, 8 Texas Grim. App., 187, and other cases.
80 Tex. Crim. 643Darnell v. State (1917)
Misdemeanor—Theft—Practice on Appeal. Where, upon appeal from a conviction of misdemeanor theft, the complaint and information were sufficient, the cause must be affirmed in the absence of a statement of facts or bills of exception.
80 Tex. Crim. 644Pyka v. State (1917)
Carrying Pistol—Insufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant being engaged in a difficulty with one of State’s witnesses incidentally picked up a pistol which was lying on the ground, and which he denied was his own, and struck the said State’s witness over the head with it, and then dropped it near where he picked it up, this did not constitute an offense under article 475, Penal Code, which prohibits any person from carrying a pistol on or about his person. Following Guy v. State, 74 Texas Grim. Rep., 620, and other cases.
80 Tex. Crim. 644Ex Parte Webster (1917)
Habeas Corpus—Bail—-Practice on Appeal. Where the lower court denied bail, and the facts on appeal showed that the judgment of the lower court was correct, the same is affirmed without discussing the evidence.
80 Tex. Crim. 646Ex Parte Guerrero (1917)
The opinion states the case.
80 Tex. Crim. 647Ex Parte Douglass (1917)
Habeas Corpus—Bail—Practice on Appeal. Where, upon appeal from, a habeas corpus proceeding denying bail, the testimony showed that appellant was entitled thereto, the same is accordingly granted. -
80 Tex. Crim. 648Mireles v. State (1917)
1.—Carrying Bowie Knife—Definition of Offense.- Under article 1027, Penal Code, a bowie knife is defined to be a knife intended to be worn upon the person which is capable of inflicting death, and not commonly known as a pocketknife and where the knife carried by the defendant was carried by him in a scabbard and the blade was about nine inches in length with a handle four or five inches long, such character of knife is embraced in the statutory definition of a bowie knife. Following Hernandez v. State, 32 Texas Grim. Rep., 271. S.—Same—Own Premises—Charge of Court. It is no offense for one to carry a bowie knife on his own premises, and where the evidence showed such state of facts, the court should so have instructed the jury. S.—Same—Arrest—Own Premises—Charge of Court. ' Where, upon trial of unlawfully carrying a bowie knife, the evidence showed that defendant was a tenant, and was arrested on his place which he had rented from the landlord, and forced to leave his said premises when he had this knife on his person and to go along the public road, the court should have submitted a requested charge that this would not be a violation of law, if 'he carried the knife with him. 4. —Same—Charge of Court—Own Premises Defined. Where defendant claimed that he had the right to carry arms prohibited by law on his person, off of his place to where he was at work for another person picking cotton, such contention was untenable. 5. —Same—Charge of Court—Requested Charges—Defensive Theories. Where the evidence showed that defendant carried the. prohibited knife at three separate and distinct places and times, and was violating the law only in one instance, that is when he carried the same on some one else’s premises, the judge should have submitted a proper charge on each phase of the case, and the general charge that it was not unlawful for a person to carry a bowie knife on his own property or on property which he had rented or leased was insufficient under the facts of the instant case.
80 Tex. Crim. 652Bennett v. State (1916)
The opinion states the case.
80 Tex. Crim. 661Bennett v. State (1917)