81 Tex. Crim.

Volume 81 — Texas Criminal Reports

199 opinions

81 Tex. Crim. 1Bloch v. State (1916)
The opinion states the case.
81 Tex. Crim. 21Childs v. State (1917)
The opinion states the case.
81 Tex. Crim. 24Freeman v. State (1917)
The opinion states the case.
81 Tex. Crim. 25Cole v. State (1917)
Tried below before the Hon. T, A. Work. Appeal from a conviction of a violation of a city ordinance, for exhibiting moving pictures without permission; penalty, a fine of fifty dollars.
81 Tex. Crim. 25Colf v. State (1917)
81 Tex. Crim. 26Ex parte Patterson (1917)
Habeas Corpus — Bail—Burden of Proof. The burden of proof is on the State to show a non-bailable case, and where this was not undertaken by the State the case stands as if it had never been tried, and in the absence of a statement of facts before this court, the judgment refusing bail in the court below will be reversed and relator granted bail.
81 Tex. Crim. 28Noble v. State (1917)
1. — Theft of Hog — Circumstantial Evidence — Original Taking — Rule Stated. Where the State relies upon circumstantial evidence alone, and the main fact is proved as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence, and in cases of theft, the main fact to he proved is the taking from the possession of the person in whom possession is laid, and if there is no direct evidence of such taking, a charge on circumstantial evidence is required. Following Stewart v. State, 71 Texas Crim. Rep., 480, 160 S. W. Rep., 381. 3. — Same—Admissions of Defendant — Circumstantial Evidence — Rule Stated; Proof of an admission of the defendant will not relieve the court from the necessity of charging on circumstantial evidence in a theft case, unless the same is an unequivocal admission of the taking, and not only a process of inference of such main fact. Following Crowell v. State, 24 Texas Crim. App., 404. 3. — Same—Original Taking — Case Stated — Insufficiency of the Evidence. Even assuming that the identity of the alleged hog stolen, which- is doubtful, there is no direct evidence in the instant ease that defendant was in possession of the hog at any time until after it was killed, and it being charged that the defendant stole the animal and not the meat, it is essential to connect him with the taking of the hog while it was a hog. and before it became pork, and the circumstances in the ease were not sufficient to prove this fact to sustain the conviction. Following' Yarbrough v. State, 69 Texas Grim. Rep., 150, 151 S. W. Rep., 545, and other cases.
81 Tex. Crim. 31Stanley v. State (1917)
The opinion states the case.
81 Tex. Crim. 37Anderson v. State (1917)
1. —Adultery—Insufficiency of the Evidence. Where, upon trial of adultery by habitual carnal intercourse without living together, the evidence was insufficient to sustain the conviction, the judgment must be reversed and the cause remanded. Following Manuel v. State, 45 Texas Crim. Rep., 96, and other cases. 2. —Same—Evidence-—Moral Turpitude. Where, upon trial of adultery, defendant put her reputation for virtue and chastity in evidence, there was no error in permitting evidence for the State that her daughter was illegitimate.
81 Tex. Crim. 39Hudley v. State (1917)
The opinion states the case.
81 Tex. Crim. 43Borders v. State (1917)
The opinion states the case.
81 Tex. Crim. 48Verse v. State (1917)
The opinion states the case.
81 Tex. Crim. 49Porter v. State (1917)
Adultery — Statement of Facts — Practice on Appeal — County Court. A longer time than twenty days after adjournment of the County Court can not be given to file a statement of facts, even though the court enters an order allowing thirty days, and where the statement of facts is filed after twenty days it can not be considered on appeal. Following DeFriend v. State, 69 Texas Crim. Rep., 329, and other cases.
81 Tex. Crim. 50Partridge v. State (1917)
1. — Game and Eish Law — Ensnaring and Entrapping Eish — Complaint and Information. Where, upon trial of unlawfully catching fish, etc., the complaint and information failed to allege the name of the owner of the waters said to have been netted or seined, the same were insufficient, as the statute requires that this must he done without the consent of the owner. 3. — Same—Buie Stated — Pleading. It is the settled law in Texas that all constituent elements contained in the definition of the offense must be charged in the complaint and information, and where this it not done, the same must be quashed.
81 Tex. Crim. 51Jackson v. State (1917)
The opinion states the case.
81 Tex. Crim. 54Pope v. State (1917)
The opinion states the case.
81 Tex. Crim. 62Cain v. State (1917)
Theft — Insufficiency of the Evidence — Circumstantial Evidence. Where, upon trial of theft, the evidence did not meet the requirements of circumstantial evidence sufficient to convict, and did not exclude every reasonable hypothesis except the guilt of the defendant, and the conviction was dependent upon circumstantial evidence alone, the same could not be sustained,, and the judgment is reversed and the cause remanded.
81 Tex. Crim. 64Lynch v. State (1917)
1. —Aggravated Assault — Statement of ¡Facts — Transcript. Where, upon appeal from a conviction in the County Court, the statement of facts was not copied in the transcript, the same can not be considered on appeal, and must be stricken out on motion of the State. Following Looper v. State, 62 Texas Crim. Rep., 96, and other cases. 2. —Same—Argument of Counsel — Discussing Matters De Hors the ¡Record. Where, upon trial of aggravated assault, counsel for the State traveled outside of the record and discussed matters before the jury which were not in evidence and which were material, and adverse to the defendant, the judgment must be reversed and the cause remanded. Following Marshall v. State, 76 Texas Crim. Rep., 386, and other cases.
81 Tex. Crim. 66Sogdell v. State (1917)
The opinion states the case.
81 Tex. Crim. 66Cogdell v. State (1917)
81 Tex. Crim. 69Nave v. State (1917)
1. — Poll Tax — Election—Indictment—Statutes Construed — Surplusage. Under article 239, Revised Penal Code, it is required to allege in the indictment that defendant advanced the money to pay the poll tax of another, knowing it was to be used in paying the poll tax and that this would have qualified . the party as a voter; besides, the proper year for which the tax was paid must he alleged, and where it is incorrectly alleged, it can not he treated as surplusage. 3. — Same—Insufficiency of the Evidence. "Where, upon trial of advancing money for poll tax, the evidence showed that the party to whom the money was advanced was not a resident of the county of the prosecution at the time the money could have been applied for procuring a poll tax, and that the taxes were not due for the year alleged in the indict- . ment, the conviction could not be sustained. 3. — Same—Statutes Construed — Minority Opinion. See opinion of the writer thereof on construction of statutes not adhered to by majority of the court, but still adhered to by writer. Following Solon v. State, 54 Texas Crim. Rep., 261.
81 Tex. Crim. 71Johnson v. State (1917)
The opinion states the case.
81 Tex. Crim. 73Bateman v. State (1917)
1. —Bobbery—Statement of Facts — Felony—Transcript. Where the statement of facts was transcribed in the record in a felony case, the same could not be considered on appeal; but when considered, there was no reversible error. 2. —Same—Evidence—Other Transactions. Viewed in the light of the statement of facts, there was no error in admitting evidence not immediately connected with the offense alleged. 3. —Same—Evidence—Other Offenses — Buie Stated. Where the defendant was not clearly identified at the timé as one of the parties connected with the robbery, there was no error in admitting evidence of identification at the other times and places mentioned, the same occurring close together. Following Wyatt v. State, 55 Texas Crim. Rep., 73, and other cases.
81 Tex. Crim. 75Stubbs v. State (1917)
1. — Murder—Manslaughter—Evidence. Where, upon trial of murder and a conviction of manslaughter, the defense offered testimony that the defendant shortly before the homicide motioned deceased away in response to something the latter said to him, showing that defendant did not wish deceased to follow him, such testimony was admissible on the theory of self-defense. 52. — Same—Evidence—Undisclosed Motive. Upon trial of murder and a conviction of manslaughter, a State’s witness should not have been permitted to testify for the State over the objection of the defendant, that a few days before the killing witness saw deceased and on that occasion he was not doing anything out of the ordinary; this occurring in the absence of the defendant. 3. — Same—Evidence—Motive—Res Gestae. Upon trial of murder and a conviction of manslaughter, a State’s witness was on the stand and had testified that he saw another State’s witness put a knife in the deceased’s pocket just a few minutes after he was shot and while he was lying on the ground where he fell, said witness should have been permitted to testify as to whether said other State’s witness said anything to him about the knife at the time, and that said witness told the first witness be picked up said knife when it was open by the side of the body of the deceased, which said witness denied saying, as this was-a part of the res gestae. Following Upton v. State, 48 Texas Crim. Rep., 289, and other cases. Prendergast, Judge, dissenting. 4. —Same—Evidence—Bystander—Res Grestae — Rule Stated. • Where the excluded testimony is res gestae it is admissible in evidence, and does not come under the rule applicable to bystanders. Following Felder v. State, 23 Texas Crim. App., 477. 5. —Same—Evidence—Threats Against the Defendant by the Deceased. Where the testimony individuates the defendant either directly or by circumstances, or points to the defendant as the man against whom the deceased makes the threat, it is admissible in evidence, and it is error-to rule it out. 6. —Same—Continuance—Practice on Appeal. Where the judgment is reversed and the cause remanded upon other grounds, the overruling of the application for a continuance need not be discussed on appeal. 7. —Same—Manslaughter—Charge of Court — Practice on Appeal. Where defendant was given the lowest punishment for manslaughter, it is not very important that the charge of the court on manslaughter is subject to criticism. 8. —Same—Self-defense—Threats—Standpoint of Defendant — Charge of Court — Rule Stated. A charge of the court on self-defense should never be given in the negative form, and the defendant is entitled to have submitted this right, as viewed from his standpoint and not of the jury, with a direct pertinent application of the law to the facts on trial.
81 Tex. Crim. 81Pizana v. State (1917)
1. — Murder—Principals—Self-defense—Charge of Court. Where, upon trial of murder, the evidence raised the issue that defendant’s brother in shooting the deceased acted in his own necessary self-defense, the court should have instructed the jury as requested that if they believed this from the evidence, etc., they should acquit the defendant. Following McMahan v. State, 46 Texas Crim. Rep., 540, and other cases. 2. —Same—Rule Stated — Self-defense. One can not be convicted for aiding and abetting any homicide where the person actually doing the killing was justified in so doing in self-defense, and the jury, under the facts in the instant ease, should have been so advised. Following Patton v. State, 62 Texas Grim. Rep., 71, and other cases. 3. —Same—Principals—Charge of Court. Where, upon trial of murder, the evidence failed to show that there was a conspiracy or that the defendant acted with others and aided and abetted them with any knowledge of the guilty intent, or raised the issue which authorized the court to charge on the law of principals, the court’s charge on principals was reversible error. Following Marwilsky v. State, 9 Texas Crim. App., 377, and other cases. 4. —Same—Insufficiency of the Evidence. Where, upon trial of murder, the evidence fails to support a conviction for that offense, the same is reversible error. Following Sanchez v. State, 70 Texas Grim. Rep., 24, 156 S. W. Rep., 218. 5. —Same—Circumstantial Evidence — Charge of Court. Where, upon trial of murder, there was no evidence that defendant actually took part in the homicide, and if there was evidence that he aided or abetted others, it was wholly circumstantial, the court should have submitted the law on circumstantial evidence. Following Burnam v. State, 61 Texas Grim. Rep., 616. 6. —Same—Misconduct of Jury — Practice on Appeal. Where the evidence heard upon motion for new trial on the misconduct of the jury was not filed during the term of court at which defendant was tried, the same can not be considered on appeal. Following Black v. State, 41 Texas Grim. Rep., 185. 7. —Same—Illegal Arrest — Manslaughter. Where the issues of illegal arrest and manslaughter were not involved, they need not be noticed on appeal.
81 Tex. Crim. 87Blake v. State (1917)
The opinion states the case.
81 Tex. Crim. 90Cox v. State (1917)
The opinion states the case.
81 Tex. Crim. 96Bishop v. State (1917)
The opinion states the case.
81 Tex. Crim. 108Cogburn v. State (1917)
The opinion states the case.
81 Tex. Crim. 109Lerma v. State (1917)
1. —Local Option — Evidence—Exhibits—Practice—Harmless Error. While it has frequently been criticized to exhibit certain compounds to the jury upon trials of violation of the local option law, yet where the evidence was conclusive that if the sale was made, that the fluid was whisky and that whisky is an intoxicant, the fact that the jury examined or smelled the liquid, while error, would not be harmful under the facts of this case. Following Thompson v. State, 72 Texas Crim. Rep., 6, and other cases. Distinguishing Parker v. State, 45 Texas Crim. Rep., 334, 75 S. W. Rep., 30, and other cases. 2. —Same—Other Offenses — Rebuttal Evidence. Where appellant complained of the introduction in evidence of another and different offense, but it appeared from the record that the evidence complained of was in rebuttal to that given by the appellant with reference to the length of time she had lived with her present husband, etc., and the facts did not develop proof of another offense, there was no reversible error. 3. —Same—Insufficiency of the Evidence — Law in Force — Judicial Notice. Where the statement of facts failed to show that the sale of intoxicating liquor had been prohibited in the justice precinct where the offense was alleged to have been committed, the evidence was insufficient to support the conviction, and this court can not take judicial notice of the fact that there has been an election resulting in the prohibition of such sale. Following Jackson v. State, 157 S. W. Rep., 1196, and other cases. 4. —Same—Rule Stated — Law in Force — Judicial Notice. The local option law is a local or special law and is in force only in those counties where the people have adopted it, and this court does not judicially know in what territory it has been adopted, and the evidence must show this law to be in force in the territory where the sale is alleged to have been made, or the judgment can not be sustained. "Following Dorman v. State, 64 Texas Crim. Rep., 104, and other cases.
81 Tex. Crim. 112Clemens v. State (1917)
1. — Gaming—General Reputation for Truth — Rule Stated. Where, upon trial of gaming, it was shown that the State’s witness’ reputation was had, the defendant should have been permitted to show that he could not he believed upon oath. Following Bluett v. State, 12 Texas Crim. App., 39; although this was not reversible error in the instant ease. 3. — Same—Argument of Counsel. State’s counsel should not have indulged in sharp criticism of the defendant in regard to matters touching the question of impeachment, etc. 3. — Same—Evidence—Other Transactions. Upon trial of gaming, transactions about which the defendant was questioned as having occurred in another county some two years prior to the instant transaction should not have been introduced in evidence.
81 Tex. Crim. 114Adams v. State (1917)
1. —Scire Facias — Judgment Final — Forfeiture of Bail Bond. Where, upon appeal from a judgment final on a forfeited hail bond, it appeared from the record that the appellant appeared in the County Court before final judgment to answer the accusation against him and presented his motion to set aside the judgment nisi" and stand his trial, showing that he had been prevented from appearing at the time his bond was forfeited on account of sickness, which fact was not controverted, a final judgment should not hav$ been entered against him and his sureties, and the judgment must be reversed and the cause remanded. Following Reddick v. State, 21 Texas Crim. App., 267, and other cases. 2. —Same—Filing Briefs — Agreement—Fractice on Appeal. Where the attorneys on both sides entered into a written agreement in the lower court waiving the filing of briefs therein, a motion to dismiss on that account is overruled.
81 Tex. Crim. 115Cox v. State (1917)
The opinion states the case.
81 Tex. Crim. 117Lee v. State (1916)
The opinion states the case.
81 Tex. Crim. 135Marta and Bonado v. State (1916)
The opinion states the case.
81 Tex. Crim. 156Holloway v. State (1917)
Occupation — Intoxicating Liquor — Attorney and Client — Affidavits—Newly Discovered Evidence. Where the affidavits attached to the motion for new trial were sworn to before defendant’s attorney in the trial court, they could not be considered on appeal; besides, the motion showed no merit, and the want of sufficient diligence of the alleged newly discovered evidence. q
81 Tex. Crim. 157Clark v. State (1917)
1. —Theft—Severance—Statutes Construed — Buie Stated. It is only by reason of article 91, Penal Code, and a'rticle 791, Code Criminal Procedure, that the testimony of principals, accessories, and accomplices is denied to the defendant when they are indicted, and under article 727, Code Criminal Procedure, the defendant can only demand that persons prosecuted for the saíne offense be first-tried, when the testimony would be denied him by law. 2. —Same—Different Offenses — Principals—Accomplice—Accessories. Theft and concealing stolen property are separate offenses, and a person charged with receiving the stolen property, although indicted therefor, is not prohibited from testifying for the defendant who is charged with the theft of the property, as they are not charged with the same offense, and therefore an application for severance was correctly overruled, as the conduct of the parties was not so connected with the theft as to make them principals, accomplices or accessories so that they could be indicted as such. Following Kaufman v. State, 70 Texas Crim. Rep., 438.
81 Tex. Crim. 160Downs v. State (1917)
1. —Theft—Original Taking — Charge of Court — Mistake. Where, upon trial of theft, the evidence showed on the part of the defendant that at the time he took the property alleged to have been stolen he did not know th'at it was not his own and did not at that time intend to appropriate it to his own use, and there was also testimony that he formed the intent tq take the property subsequently after discovering his mistake, this phase of the ease should have been submitted to the jury; that under these circumstances he would not be guilty. 2. —Same—Rule Stated — Original Taking — Subsequent Appropriation. If the original taking was lawful, no false pretext being used, a conviction based upon a subsequent appropriation will not be sustained under an ordinary indictment for theft. Following Stokely v. State, 24 Texas Crim. App., 509, and other cases. 3. —Same—Rule Stated — Conversion—Fraudulent Intent. Proof of the conversion of the property is not sufficient of itself to show that defendant intended at the time of the taking to deprive the owner of the value of the same and to appropriate it to the use or benefit of the defendant. Following Pitts v. State, 3 Texas Crim. App., 210, and other cases. 4. —Same—Defensive Theory — Charge of Court. Where, upon trial of theft, defendant’s defense was that the original taking was not unlawful, and at the time there was no intent to appropriate the property, he was entitled to a charge upon this theory which was raised by the evidence. Following James v. State, 72 Texas Crim. Rep., 511, and other cases.
81 Tex. Crim. 162Fleming v. State (1917)
The opinion states the case.
81 Tex. Crim. 165Jerrols v. State (1917)
The opinion states the case.
81 Tex. Crim. 167Mathis v. State (1917)
The opinion states the case.
81 Tex. Crim. 167Butler v. State (1917)
School Law — Compulsory Attendance — Age of Delinquent — Constitutional Law. Where appellant’s criticisms of the constitutionality of the law, Act Thirty-fourth Legislature, chapter 49, as to compulsory school law, do not involve matters which would affect the result of this appeal they need not be reviewed, although laws having the general scope of this one have been held valid; however, as defendant’s son had attained the age of fourteen years before the compulsory term began, the law compelling the attendance of children under fourteen years of age, was not applicable to him, and consequently, the appellant committed no offense in consenting that his son should absent himself from school at the time that the evidence showed he did so.
81 Tex. Crim. 170Lee v. State (1917)
The opinion states the case.
81 Tex. Crim. 171Bunch v. State (1917)
1. — Theft from. Person — Pleading and Proof — Variance. Where the indictment charged theft from the person under both grounds of the statute, but the court only submitted taking the property without the knowledge of the owner, and the evidence showed that the latter knew all about it at the time and protested, the conviction could not be sustained. Prendergast, Judge, dissenting. 3. — Same—Insufficiency of the Evidence.- Where, upon trial of theft from the person, the" evidence showed that the injured party had knowledge of the taking, and besides, showed that there was no fraudulent intent of the defendant at the time of the original taking, a subsequent fraudulent intent, if any, was shown, would not relate back and make the original taking fraudulent. Following Roberts v. State, 21 Texas Crim. App., 460, and other eases. Prendergast, Judge, dissenting. •
81 Tex. Crim. 174Johnson v. State (1917)
1. —Occupation—Intoxicating Liquors — Local Option — Beer. Where defendant was charged with and convicted of the offense of unlawfully pursuing the business of selling intoxicating liquors in local option territory, and raised the issue that it was not shown that the beer he sold was an intoxicating liquor, but the circumstances showed that he sold the alleged beer by engaging in the 'business of selling the same, and that it was of an intoxicating variety, the conviction is sustained, without reference to the conflicts in our decisions, as to whether it must be shown that beer is intoxicating liquor where a single sale is made. " 2. —Same—Agency—Insufficiency of the Evidence — Charge of Court. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquor in local option territory, the evidence did not raise the issue of agency, there was no error in the court’s failure to submit the same. Following Hamilton v. State, 191 S. W. Rep., 1160.
81 Tex. Crim. 177Stephens v. State (1917)
The opinion states the case.
81 Tex. Crim. 179McDougal v. State (1917)
The opinion states the case.
81 Tex. Crim. 192Welch v. State (1917)
1. — Maliciously Changing Gear o£ Motor "Vehicle — Insufficiency of the Evidence. Where, upon trial of purposely and maliciously changing the • gears of a standing motor vehicle, etc., under section 3 of the Act of April 2, 1913, the evidence was not sufficient to show that defendant purposely and maliciously, in the sense intended and prescribed by said statute, changed said gear, etc., ■a conviction could not be sustained. .3. — Same—Statutes Discussed. See opinion for a discussion of section 1 of said Act, as amended in 1915, to emphasize the fact-that the evidence was insufficient to show that defendant ■was guilty under section 3 of said Act.
81 Tex. Crim. 192Owens v. State (1917)
Dairying Pistol — Jurisdiction—Recognizance. Where appellant filed an appeal Jbond instead of entering into a recognizance, the appeal must be dismissed on motion of the State. Following Whitcomb v. State, 190 S. W. Rep., 484.
81 Tex. Crim. 194Holder v. State (1917)
1. — Murder—Jury and Jury Law — Original Papers — Practice. Upon trial of murder and a conviction of manslaughter, there was no error in permitting the jury to take' with them in their retirement, when the case was submitted to them, the written confession of defendant which had been introduced in evidence without objection. Following Ferguson v. State, 61 Texas Grim. Rep., 152. H. — Same—Rule Stated — Papers and Documents — Jury and Jury Law. It is now the general doctrine that all papers and documents given in evidence, with the exception in some jurisdictions of depositions, may properly be allowed to go to the jury. S. — Same—Evidence—Opinion Testimony. Where, upon trial of murder, there was an issue as to whether the deceased had fired more than one shot at the time of the homicide, there was no error in permitting the State to permit a witness who had qualified himself as being familiar with pistols, etc., to testify that the pistol exhibited at the trial and in possession of the deceased at the time of the himieide had only been fired once. Following Fay v. State, 52 Texas Grim. Rep., 185, and other cases. 4. —Same—Evidence—Rule Stated — Opinion by Witness. The rule is that a witness must have some special practical knowledge of the subject in order to enable the court to determine his competency, and the determination of this question is largely in the discretion of the trial court, and unless said discretion is abused, the ruling will not be disturbed. Following Bratt v. State, 38 Texas Grim. Rep., 121. But where a person shows himself totally disqualified, his testimony should be excluded. Following Dane v. State, 36 Texas Grim. Rep., 84. 5. —Same—Evidence—Opinion of Witness. Where the defendant offered a witness on the question as to whether the pistol of deceased had been fired more than once, but it developed on the examination of the witness by the court that the witness had never seen the pistol in question until he was put on the witness stand, and that he then said that he knew about as much as the average man that uses a gun very much, this did not qualify him to express an opinion as a witness that said pistol had been fired more than once; besides, another witness had testified to said fact. Following Hill v. State, 37 Texas Grim. Rep., 415, and other cases. 6. —Same—Provoking Difficulty — Charge of Court. Where, upon trial of murder, the circumstances in evidence were such that the issue of provoking the difficulty was thereby raised, there was no-error in the court’s submitting a charge thereon. Following Mason v. State, 72 Texas Grim. Rep., 501. Besides, there was no exception to the charge of the court at the time. Following Gray v. State, 77 Texas Grim. Rep., 221, and other eases. 7. — Same—Evidence—Opinion of Witness — Rehearing. Where appellant insisted that there was error in the failure of the trial court to permit his witness to testify as an expert that the pistol in question had been fired more than once, but it appeared from the record that it was not shown that the knowledge of the witness with reference to this matter qualified him to express an opinion thereupon, there was no reversible error.
81 Tex. Crim. 200McBride v. State (1917)
Aggravated Assault — Simple Assault — Deadly Weapon — Self-defense. Where, upon trial of aggravated assault and a conviction for simple assault, the court submitted a requested charge on self-defense, which, covered the issue raised by the evidence, but refused other requested charges to avoid repetition in his charge, there was no reversible error. Following Carbough v. State, 49 Texas Crim. Rep., 452, and other cases.
81 Tex. Crim. 201Savalla v. State (1917)
Assault to Murder — Newly Discovered Evidence — Motion for New Trial — ■ Attorney and Client. Where the motion for new trial on the ground of newly discovered evidence showed a want of diligence in securing said testimony, the same was correctly overruled; besides, the affidavit supporting the motion was sworn to before the attorney for the defendant and can not, therefore, be considered.
81 Tex. Crim. 202Cole v. State (1917)
Unlawful Assembly- Information — Intent—Pleading. Where, upon trial of a violation of articles 435 et seq., Penal Code, defining an unlawful assembly, the information failed to allege that defendant with the other persons named therein unlawfully assembled with intent to aid each other by violence, etc., to prevent the street car employees named from pursuing their labor, etc., the same was bad on motion to quash.
81 Tex. Crim. 204Odam v. State (1917)
School Law — Compulsory Attendance — Information. Where, upon trial of a violation of the compulsory attendance school law, the information failed to allege the child’s name, age or relationship of defendant to the child, whether parent, guardian or other custodian, and also failed to allege in the second count when or where defendant hired said child, etc., the same was fatally defective.
81 Tex. Crim. 206Armendariz v. State (1917)
The opinion states the case.
81 Tex. Crim. 208Price v. State (1917)
The opinion states the case.
81 Tex. Crim. 210McGee v. State (1917)
Among other things, the defendant offered in evidence the testimony of the county attorney to the effect that after the local election on the tick eradication law, the defendant consulted him as to the dipping required, and the county attorney advised him that he could disinfect the cattle in his own way, and that if he destroyed the ticks, he would, not have to dip the cattle, etc.
81 Tex. Crim. 214Munsey v. State (1917)
1. —Tick Eradication Law — Statutes Construed. Where the tick eradication law had been construed adversely to the defendant in a companion case, it need not be again reviewed. 2. —Same—Information—Pleading—Knowledge of Defendant. Where the complaint and information undertook to charge the defendant conjunctively with violating the statute in both ways prescribed, which was proper, but failed to allege in the second manner of violating the statute that said animal was known to have been exposed to a contagious disease, etc., a motion to quash should have been sustained. 3. —Same—Insufficiency of the Evidence. Where the evidence was insufficient to sustain a conviction for a violation of the first method of violating said law, and the complaint and information were insufficient to allege a violation of the law as to the second method, and should have been quashed on motion presented, the conviction could not be sustained. 4. —Same—Legislative Intent. Whatever the object and purpose of the Legislature was as to the second phase of the law, the same can not be ignored, and the allegation and proof must comport therewith.
81 Tex. Crim. 216Wilson v. State (1917)
The opinion states the case.
81 Tex. Crim. 217Nolan v. State (1917)
The opinion states the case.
81 Tex. Crim. 218Smith v. State (1917)
1. — Forgery—Indictment—Innuendo Allegations Necessary. - Where, upon trial of forgery, the indictment was duplicitous, and, besides, the alleged instrument showed on its face that it is not a subject of forgery, in the absence of innuendo allegations, and bore date subsequent to the return of the indictment, etc., the same was bad on motion to quash. Following Womble v. State, 39 Texas Crim. Rep., 24, and other cases. Brendergast, Judge, dissenting. 2. —Same—Spelling—Alleged Forged Instrument — Explanatory Allegations. See opinion pointing out discrepancies between the spelling in the alleged iorged instrument and the original, which should be properly explained, in the event a new indictment is found. Prendergast, Judge, dissenting. 3. —Same—Original Instrument — Order of Court. Where the originally alleged forged instrument was sent to this court for examination, the clerk of this court is directed to return same to the clerk of the lower court.
81 Tex. Crim. 221Henley v. State (1917)
The opinion states the case.
81 Tex. Crim. 225Thodberg v. State (1917)
1. — Scire Facias — Appeal—Brief. Where the plaintiff in e^rror failed to file a brief in the case in the court below, on an appeal from a forfeited bail bond, the appeal must be dismissed; however, it being shown that the filing of said brief was waived by the attorney for the State, the appeal is reinstated and disposed of on its merits. a. — Same—Sickness of Principal — Uncontrollable Circumstances. Where defendant had given a bail bond under a charge of unlawfully carrying'a pistol, and failing to answer said bond was forfeited, but it appeared from the record that defendant afterwards appeared and answered said charge, was convicted thereof, and thereupon filed his answer in the scire facias proceeding, showing that he was too ill at the time of the forfeiture to answer such criminal charge, and there was no controversy about this fact, the forfeiture should not have been made final under subdivision 3, article 500, Code Criminal Procedure, and the judgment is, therefore, reversed and the cause remanded.
81 Tex. Crim. 225Harris v. State (1917)
Swindling — Statement of Facts — Bills of Exception. In the absence of a statement of facts or bill of exceptions, the overruling of a motion for a continuance can not be reviewed.
81 Tex. Crim. 225Parris v. State (1917)
81 Tex. Crim. 227Roberts v. State (1917)
The opinion states the case.
81 Tex. Crim. 230Jones v. State (1917)
81 Tex. Crim. 230Jokes v. State (1917)
Tried below before the Hon. J. F. Perritte. Appeal from a conviction of a violation of the local option laws; penalty, a fine of twenty-five dollars and twenty days confinement in the county jail. .
81 Tex. Crim. 233Gallon v. State (1917)
Local Option — Recognizance—Appeal Bond. Where, upon appeal from a conviction of a violation of the local option law, defendant gave an appeal bond instead of entering into a recognizance, and was given his liberty, the appeal must be dismissed. Following Laird v. State, 79 Texas Crim. Rep., 129.
81 Tex. Crim. 234Baxter v. State (1917)
The opinion states the case.
81 Tex. Crim. 237Miller v. State (1917)
1. —Burglary—Private Residence — Statutes Construed — Indictment. Burglary of a private residence at night is a separate and distinct offense from burglary at night of a house other than a private residence, and it is a separate and distinct offense from burglary committed in the daytime by breaking and entering a house whether a private residence or not. 2. —Same—Rule Stated — Definition of Offense. Where the proof shows without controversy burglary of a private residence at night, a conviction for ordinary burglary will be set aside, the two offenses being separate and distinct. Following Jones v. State, 47 Texas Crim. Rep., 126, and other cases. 3. —Same—Charge of Court — Rule Stated. Where the proof showed a burglary of a private residence at night, the court should not charge ordinary burglary. Following Rogers v. State, 59 Texas Crim. Rep., 146, and other cases. 4. —Same—Statutes Construed — Cases Distinguished. It has been held that article 841, Penal Code, was but an addition to articles 838 and 839, and thereby read article 841 into articles 838 and 839 (now 1303 and 1304), but a private-residence night burglary is an entirely new and distinct offense, and these articles should not be read into the articles creating night burglary of a residence, as they have no application thereto. Distinguishing Railey v. State, 58 Texas Crim. Rep., 1, and other cases. 5. —Same—Buie Stated — Intent—Felony—Theft—Shooting Into House. If the statute is upheld, as the language imports, then a night-time burglary of a private residence, being a distinct and separate offense from other burglaries, the allegation in the indictment must conform to the definition, and in order to-do so, it must charge a private-residence burglary at night with the intent of committing a felony of theft, and shooting into a house to injure does not charge a felony. “ 6. —Same—Indictment—Shooting Into House — Intent—Burglary. Where, upon trial of burglary of a private residence in the night-time, by shooting into a house, etc., the indictment failed to charge that it was the intent of the defendant to commit felony or theft, the same was insufficient on motion to quash.
81 Tex. Crim. 241Mizell v. State (1917)
The opinion states the case.
81 Tex. Crim. 256Sharp v. State (1917)
The opinion states the case.
81 Tex. Crim. 272Rudy v. State (1917)
1. — Anonymous Letter — Information—Letter Must Be Set Out. Where, upon trial of sending an anonymous letter, the information failed to allege the words and tenor which reflected upon the chastity, virtue, good, character, and reputation of the party named in the information, the same was insufficient on motion to quash. 3. — Same—Rule Stated — Language "of Statute. Notwithstanding, the general rule is that in describing the offense in an indictment, it is sufficient to follow the language of the statute, there are instances which form exceptions to this general rule, and in which more •certainty is required, either from the obvious intention of .the Legislature or from the application of known principles of law. Following Wills v. State, 24 Texas Crim. App., 400, and other cases. Prendergast, Judge, dissenting. 3. —Same—Pleading—Instrument Should. Be Set Out in the Indictment. Where a written instrument enters into an offense as a part or basis thereof, or when its proper construction is material, the instrument should be set-"out in the indictment. Following White v. State, 3 Texas Crim. App., 605, and other cases. Qualifying Bradfield v. State, 73 Texas Crim Rep., 353. 4. —Same—Threatening Letter — Indictment—Rule Stated. Where the offense consists in the sending of a threatening letter for the purpose of extorting money, it is not sufficient to charge the offense alone in the statutory words, and the letter itself should be set out in the indictment, or such a description given of it that the court may judge of its character. Following Tynes v. State, 17 Texas Crim. App., 123, and other cases. 5. —Same—Disqualification of Judge. Where the bill of exceptions did not show the disqualification of the trial judge, there was no reversible error. 6. —Same—Evidence—Other Transactions — Letter. Where the letter on which the prosecution was founded was referred to therein, there was no error in admitting this letter in evidence as res gestae, etc. 7. —Same—Experts—Comparison of .Handwriting. Upon trial of sending an anonymous letter, etc.,' there was no error to show by expert testimony- that the two letters in evidence were written upon -the same typewriter, under the rule of comparison of handwriting.
81 Tex. Crim. 278Whitehead v. State (1917)
1. — Swindling—Charge of Court — Requested Instructions. Where, upon trial of swindling, the prosecutrix testified that she had a conversation with other parties and relied upon what they told her with reference to defendant’s solvency, and the issue was thus raised that the prosecutrix did not rely altogether upon what defendant had told her of his solvency before she parted with the title of her property to him; and the court’s charge simply submitted the question of false representation in a general way, limiting them to what defendant had told prosecutrix, and refused to submit the requested charge as to prosecutrix’s conversation with other parties about selling the property described in the indictment to the defendant, etc., the same was reversible error. Prendergast, Judge, dissenting. 3. — Same—Requested Charge — Misconception—Words and Phrases. Where, upon trial of swindling, the issue was raised that the prosecutrix relied upon the representation, in part at least, which other parties had made to her concerning defendant’s solvency, and the court refused a requested charge because it was therein stated that the prosecutrix must have relied solely and alone upon the statements made to 'her by the defendant, and thereby misconceived the requested charge which did not contain such a limitation, hut simply asked the court to instruct the jury that if they relied upon other statements and representations, etc., to acquit the defendant, the requested charge should have been given. Prendergast, Judge, dissenting. 3. —Same—Evidence—Other Transactions — Subsequent Insolvency. Upon trial of swindling in which the indictment charged that the defendant obtained property from the prosecutrix upon the false representation that he was solvent, etc., it was reversible error to introduce evidence that subsequent to such transaction the defendant bought a farm and executed a mortgage on his property which included that which he had obtained from the prosecutrix. Prendergast, Judge, dissenting. 4. —Same—Evidence—Schedule—Bankruptcy Proceeding — Bill of Exception. Where, upon trial of swindling, in which the indictment charged that the defendant obtained property upon the false representation that he was solvent, etc., the State was permitted to introduce in- evidence a great number of items in the schedule filed in bankruptcy proceedings by defendant and his brother, over a year after the purchase of the property by defendant from prosecutrix, upon -which the charge of swindling is based, to show his insolvency at the time of the transaction, and the defendant excepted to such testimony. Held that the hill of exceptions, while not technically pointing out all the different illegitimate items, was nevertheless sufficient to present the question, and called the court’s attention to the fact that the items to which he was objecting were those debts created since the transaction between himself and prosecutrix, and this did not contravene the rule that where some of the testimony mentioned in the bill of exceptions is admissible and some is not that the bill must particularize the matters to which objection was urged. Prendergast, Judge, dissenting. 5. —Same—Insufficiency of the Evidence. See opinion -expressing doubt as to sufficiency of the evidence to sustain a conviction for swindling. Prendergast, Judge, dissenting.
81 Tex. Crim. 293Clay, Jr. v. State (1917)
1. —Murder—Bill of Exceptions — Continuance—Bystander’s Bill. Where, upon trial of murder, the defendant complained that he was not fairly treated by the court in the preparation and presentation of an application for continuance, and excepted to the qualification of his bill of exception, but finally requested the court to prepare the bill of exceptions, it was incumbent upon him, if he did not like the bill prepared by the court, to interpose his objection and prepare a bill of exceptions and prove it up by bystanders. 2. —Same—Continuance—Want of Diligence — Cumulative Testimony. Where the record on appeal showed that no process had been issued for the witnesses and the testimony could have been obtained, and that there was a total want of diligence in procuring the same, there was no error in overruling the application for continuance. Besides the absent testimony was cumulative. 3. —Same—Evidence—Motive—Other Transactions. Upon trial of murder, there was no error in permitting the State to introduce evidence going to show that a few moments before the homicide there was a difficulty between deceased and another, which aroused the anger of the defendant, and would tend to show motive of appellant in committing the homicide. 4. —Same—Rehearing—Continuance—Facts Stated in Opinion. Where appellant contended in his motion for rehearing that this court was in error in stating that the absent testimony was cumulative,' but under the view taken in the original opinion the court held that the application for continuance was overruled for want of diligence, the contention of appellant would be immaterial. Besides the record showed that the evidence was cumulative. 5. —Same—Counsel for Defendant — Continuance—Want of Diligence. Where it appeared from the record that the attorneys who originally represented the defendant had passed out of the case, and that other counsel now represented defendant, still this would not account for want of diligence on the part of the defendant, especially where the application was a subsequent one; and defendant had knowledge and opportunity as to the witnesses who were material, and who could have been secured at the trial, and there was no reversible error in overruling the application.
81 Tex. Crim. 298Carpenter v. State (1917)
1. —Perjury—Indictment—Grand Jury — Violation of Law. Where, upon trial of perjury, the indictment nowhere alleged that it was the violation of any law for the party making the order to sign the same, etc., which the indictment alleged was the material inquiry before the grand jury, the same was insufficient on motion to quash. 2. —Same—Rule Stated — Investigation Before Grand Jury — Perjury. It is well settled that in an indictment for perjury, alleged to have been committed 'before a grand jury, the allegations must show that the matter under investigation before the grand jury, was a violation of law; in other words, that what the grand jury was investigating when the alleged false testimony was given before it, was the violation of some law. Following Gallegos v. State, 50 Texas Crim. Rep., 190, and other eases. 3. —Same—Pleading—Grand Jury — Venue. Where, upon trial of perjury, it appeared from the face of the indictment that it contained no specific allegation that the grand jury was investigating whether an offense had been committed in the county of the prosecution, it would be better practice for the indictment to so specifically allege. 4. —Same—Indictment—Necessary Allegation — Order Should Be Alleged. In an indictment for perjury, it is always necessary to allege distinctly and clearly what the false testimony was, which is made the basis of the offense, and then traverse it, and other preliminary matters in connection with said false testimony should not be confused with that which is made the basis for perjury. It is also best to copy in the indictment the alleged forged order.
81 Tex. Crim. 302Moore v. State (1917)
1. —Occupation—Injurious to Health — Requested Charges — Sufficiency of the Evidence. Where, upon trial of carrying on an occupation injurious to health, etc., under article 694, Penal Code, the evidence was sufficient to sustain the conviction, on a proper charge of the court prepared by the defendant, there was no reversible error. 2. —Same—Evidence—Opinion—Unsanitary Conditions. Where, upon trial of carrying on an occupation injurious to health, etc., testimony was admitted that defendant’s place of business, towit, a slaughter house near a stream, was in a most unsanitary and filthy condition, the term unsanitary, although somewhat an expression of opinion by the witness, was nevertheless admissible under the circumstances of the case, inasmuch as non-expert witnesses, both for the defendant and the State, used the term sanitary and unsanitary, and the lowest penalty being assessed, there was no' reversible error. 3. —Same—Evidence—Other Transactions — Res Gestae. Upon trial of carrying on an occupation injuries to health, etc., there, was no error in admitting evidence that defendant left a dead animal on his own premises near those of a neighbor, which was offensive to the latter; this was descriptive of the conditions of defendant’s premises, etc., and was part of the res gestae, and this although there may have been another prosecution under another article of the Penal Code against the defendant. Following Landrum v. State, 73 Texas Crim. Rep., 580, and other cases. 4. —Same—Evidence—Slaughter House — Condition of Premises. Where defendant was charged with carrying on an occupation injurious to health, etc., towit, a slaughter house, etc., there was no error in admitting testimony to show the filthy condition of the premises, as to flies swarming around the hides and bodies of slaughtered animals, etc., that the water wasi polluted around the premises, and little children played about it, and this, although it may have been a separate offense; besides, similar testimony was admitted without objection. Following Wagner v. State, 53 Texas Crim Rep. 306.
81 Tex. Crim. 306Weinberg v. State (1917)
1. — Local Option — Charge of Court — Intoxicating Liquor. Where, upon trial of a violation of the local option law, the issue was raised by the evidence whether the alleged beverage was intoxicating, the court should have instructed the jury as requested that before they could convict the defendant, they must believe from the evidence that the alleged liquor sold by defendant was intoxicating. Following Decker v. State, 39 Texas Crim. Rep., 20. Distinguishing Moreno v. State, 64 Texas Crim. Rep., 660. 3. — Same—Intoxicating Liquor — Rule Stated. The rule is that any liquor intended for use as a beverage or capable of being so used, which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such proportion that it will produce intoxication, when taken in such quantities as may practically be drunk, is an intoxicant. 3. — Same—Evidence—Other Transactions. Upon trial of a violation of the local option law, testimony which showed that some time subsequent to the alleged sale, defendant bought intoxicating liquors for a number of guests, who attended the marriage of his daughter upon defendant’s invitation, was inadmissible.
81 Tex. Crim. 307Martin v. State (1917)
Forged Check — Intent to Bass — Sufficiency of the Evidence — Handwriting — Expert Testimony. Where, upon trial of knowingly having a forged check in his possession with intent to pass it as true, the evidence as a whole circumstantially corroborated the hank experts in their testimony, to the effect that the name signed to the check was defendant’s handwriting, the same was sufficient to sustain the conviction.
81 Tex. Crim. 313Haverebakken v. State (1917)
1. — Affray—Charge of Court — Variance. Where the indictment charges the defendants with having committed an affray by fighting with another in a public place, it was reversible error in the charge of the court to instruct the jury that, if defendants in a public place fought with each other, to convict, as this> was not the offense charged in the indictment. 3. — Same—Self-defense—Force Used — Charge of Court. Upon trial of an affray, the issue of more or less force or the use of greater force than was necessary to prevent an assault would not make it an affray, because if defendants had the right of self-defense against an assault by another, there would be no affray. Following Coyle v. State, 72 S. W. Rep., 847. 3. — Same—Evidence—Knowledge of Defendants — Public Place. Upon trial of an affray, testimony that the party alleged to have been assaulted had authority from the Commissioners Court to haul gravel and sand from the road bed of a public road, should not 'have been admitted, as this was not known to the defendants when they found the ■ party trespassing upon their property; besides, the court should have instructed the jury what it takes to constitute a public place, etc.
81 Tex. Crim. 316Garcia v. State (1917)
1. — Burglary—Accessory—Corroboration. Upon trial of burglary, charging defendant as an accessory, a conviction could not be had upon the uncorroborated testimony of the accomplice; besides, the evidence outside of the accomplice’s testimony did not connect defendant with a commission of the crime. Following Franklin v. State, 53 Texas Crim Rep., 388. 3. — Same—Accessory—Definition—Receiver of Stolen Property, Hot An. The acts which would make one an accessory are such as are personal to the offender, and he must give some personal help or assistance to such offender in order that the latter may evade an arrest or trial for the offense committed, and the mere receiver of stolen property can not be convicted as an accessory to theft or to the offense of burglary.
81 Tex. Crim. 318Aquilar v. State (1917)
81 Tex. Crim. 318Aguilar v. State (1917)
Tried below before the Hon. Joseph Jones. Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary.
81 Tex. Crim. 320Turman v. State (1917)
81 Tex. Crim. 320Thurman v. State (1917)
1. —Carrying Pistol — Transcript—Indictment—-Rehearing. Where, upon an appeal from a conviction of unlawfully carrying a pistol, the transcript failed to set out the indictment, etc., the appeal must he dismissed. However, in the motion for rehearing, the State having filed a proper transcript containing the indictment, the appeal is reinstated. 2. —Recognizance—Appeal Bond — Bractice on Appeal. Where, after the adjournment of court, appellant entered into a bond, but did not enter into a recognizance during term time, the appeal must be ■dismissed.
81 Tex. Crim. 322State Ex Rel. Nicholson v. Humphries (1917)
From Collingsworth County. Original application for a writ of prohibition to prevent the district judge and others to enjoin relators from enforcing the pool hall law.
81 Tex. Crim. 323Curfman v. State (1917)
1. — Scire Facias — Appeal Bond — Adjournment of Court. Where an appeal bond, in which appellant who had been convicted of forgery, taken after the adjournment of the District Court, in the county in " which he had been convicted, and while the same judge was holding court in another county of the district, and approved by him and the sheriff of the county of the conviction, the contention that said judge had no authority to do-this is not well taken; and the judgment nisi substantially conforming to- the statute was valid. Distinguishing Laird v. State, 79 Texas Crim. Rep., 129. 3. — Same—Citation—Surety—Principal. Where the citation on a judgment nisi was issued and served upon all of the sureties except one, and was not served upon the principal, and the case as to the surety who was not served was dismissed, and judgment final entered against the rest, there was no error, as it was not necessary to serve the principal. 3. — Same—Judgment Nisi — Statutory Requirements — Citation. Where the citation issued upon a judgment nisi against the sureties was not in compliance with the statutes, did not state the amount of the forfeiture, etc., the same was insufficient, as the same serves the double purpose of a petition and a citation, and where the answer pointed out these defects and contained a general denial, the same should have been sustained, and proper citation issued. Following Arrington v. State, 13 Texas Crim. App., 554, and. other cases.
81 Tex. Crim. 326Pickerell v. State (1917)
Rape — Assault to Rape — Insufficiency of the Evidence. Where, upon trial of rape by force, threats and fraud, the testimony of the prosecutrix made out a case of completed rape, and defendant’s testimony that of no offense, a conviction for assault with intent to rape could not be supported under all the evidence, and the judgment is reversed and the cause remanded.
81 Tex. Crim. 328Shipp v. State (1917)
The opinion states the case.
81 Tex. Crim. 347Taylor v. State (1917)
The opinion states the case.
81 Tex. Crim. 359Taylor v. State (1917)
The opinion states the case.
81 Tex. Crim. 366Ex Parte Evans (1917)
Habeas Corpus — Appearance Bond — Examining Magistrate. Where relator was arrested for felony, taken before the examining court and bound over to await the action of the grand jury, and his bond was approved by the examining magistrate while the court was in session, and approved by him, relator is entitlted to a discharge thereon on a writ of habeas corpus. Following Arrington v. State, 13 Texas Crim. App., 551, and other cases. Distinguishing State v. Russell, 24 Texas, 505.
81 Tex. Crim. 367Ramirez v. State (1917)
The opinion states the case.
81 Tex. Crim. 368Smith v. State (1917)
The opinion states the case.
81 Tex. Crim. 378Robertson v. State (1917)
1. — Burglary—Evidence—General Reputation. Where, upon trial of burglary, the defendant testified and was contradicted by testimony for the State, he should have been permitted to introduce testimony of his general reputation for truth and veracity. 3. — Same—Evidence—Confession—Arrest—Involuntary Statement. Where, upon trial of burglary, the State was permitted to introduce the • involuntary written confession of the defendant made while 'he was under arrest, 'the same was reversible error, which was not cured by submitting the issue as to whether they were voluntary or not to the jury.
81 Tex. Crim. 385Clayton v. State (1917)
The opinion states the case.
81 Tex. Crim. 388Ex Parte Medrano (1917)
Erom El Paso County. Habeas corpus proceedings in which relator asks discharge from a conviction under a judgment based upon an indictment for felony, etc.
81 Tex. Crim. 389Simpson v. State (1917)
1. — Theft of Cattle — Reasonable Doubt — Charge of Court. Where, upon trial of theft of cattle, the defendant contended that the court’s charge submitting ’his defenses and the converse of the State’s case did not give him the benefit of the law of reasonable doubt, but no special charge was requested and the court’s charge did conclude with the instruction to the jury to give the defendant the benefit of the reasonable doubt as to each of the matters referred to in the court’s charge, it was sufficient; besides, the court submitted a general charge on reasonable doubt. Following Rice v. State, 49 Texas Crim. Rep., 582, and other cases. 3. — Same—Other Offenses — Evidence—Rule Stated — Intent. The general rule that evidence of other offenses is not admissible is modified by exceptions which are well defined, one of which is that where intent of the party charged is an issue, other similar offenses committed about the same time may become admissible upon that issue. 3. —Same—Case Stated — Intent—Other Offenses — Evidence. Where, upon trial of theft of cattle, defendant testified declaring that in his dealing with the animal in question, he had no knowledge of the theft, but there was testimony of a companion in crime that he and defendant were partners in the business of stealing and butchering cattle, etc., and the defendant admitted that he helped slaughter and butcher the animal in question, and the sale of the hide and meat and his connection with other similar transactions, there was no error in introducing testimony that the cattle involved in the other offenses were stolen by the witness and defendant, and were dealt with in a similar manner, and this although defendant was not present at the time of the actual taking of the animal alleged to have been stolen. Following Mason v. State, 31 Texas Crim. Rep., 311, and other cases. 4. —Accomplice—Principal—Charge of Court — Conspiracy. "Where, upon trial of theft of cattle, the defendant’s companion in crime testified for the State that they were in partnership in stealing cattle^ butchering them at night, selling the hides and meat, and dividing the profits thereof, and defendant denied that he had any knowledge that the alleged animal was stolen, but admitted his connection with it at the time it was slaughtered, etc., they would both be principals under the law of conspiracy, and each responsible for the acts of the other, and there was no reversible error in the court’s failure to charge on the law of accomplice. Following Smith v. State, 21 Texas Crim. App., 107, and other cases. 5. —Same—Principals—Charge of' Court — Conspiracy. Where, upon trial of theft of cattle, the testimony of defendant’s companion in crime showed a conspiracy between them to steal and slaughter cattle, dispose of the products and divide the profits, they were both principals; and the court submitting in his charge this principle of the law, although in a rather meager way, such charge was sufficient and there was no reversible error. Following Davis v. State, 61 Texas Crim. Rep., 611. 6. —Same—Announcement—Withdrawal of Announcement — Practice in District Court — Surprise. Where the defendant claimed, surprise and asked a withdrawal of his announcement of ready for trial and a continuance, in order that he might obtain a pardon for a witness -whose testimony was excluded on the ground that he was a convict, and it appeared that said witness had been released from the penitentiary for some years of time, and the testimony was of an impeaching character, and not essential to a fair. trial, there was no error in refusing the application. 7. —Same—Other Offenses — Evidence—Intent—System. Where, upon trial of t’heft of cattle, the evidence raised the issue as to the intent of the defendant, who denied that he had any knowledge that the alleged stolen animal was stolen, but the testimony showed a conspiracy between him and the State’s witness to steal cattle, slaughter them, and dispose of -the product and divide t'he profits, there was no error in admitting testimony of said other thefts of cattle which disclosed the system of conduct and tended to solve the issue of intent. Following Petty v. State, 59 Texas Crim., Rep., 586. 8. —Same—Typographical Error — Words and Phrases. While the words used in the original opinion were “specially prepared charge” when it should have been “carefully prepared charge” this had no important bearing. 9. —Same—Accomplice—Principal—Charge of Court — Conspiracy—Rule Stated. If it be proved that the defendants by their acts pursued the same object, often by the same means, one performing one part and another another part of the same, so as to complete with a view to the attainment of t'he same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object, and all are principal offenders' whether present bodily at the place of the offense or not, and the court should submit a charge on principals and not on accomplices. Following Berry v. State, 4 Texas Crim. App., 492, and other cases.
81 Tex. Crim. 397Parker v. State (1917)
1. —Murder—Change of Venue — Compurgators. Where the State contested the affidavit of defendant’s compurgators to his motion for change of venue, alleging want of means of knowledge of same, it was unnecessary under the statute to also attack the credibility of defendant’s compurgators, as the contest applied to both grounds under the statute. Following Lemons v. State, 59 Texas Crim. Rep., 299, and other cases. 2. —Same—Change of Venue — Discretion of Court — Rule Stated. Unless it is clear that the trial court abused his judicial discretion, Ms action in refusing a change of venue will not require a reversal, and where, in the instant case, the court found that there was. nothing to prevent defendant to obtain a trial before a fair and impartial jury, there was no reversible error. " Following Tubb v. State, 55 Texas Crim. Rep., 606, and other eases. 3. —Same—Evidence—Motive. Where, upon trial of murder, the evidence showed that the defendant heard of deceased circulating a report that he had illicit intercourse with a woman a few nights, before the killing, which led up to the killing, there was no error in permitting the State to show that such illicit intercourse had taken place, 4. —Same—Evidence—Motive. Upon trial of murder, where a certain report circulated by the deceased, that defendant had had illicit intercourse with a woman which led up to the [killing, there was no error in admitting testimony that the defendant told the State’s witness that he had an engagement with said woman, and inviting the .witness to come with Mm, etc., but testimony that the witness had illicit intercourse with said woman should not have been admitted. However, there was no objection urged. 5. —Same—Provoking Difficulty — Charge o£ Court — Words and Phrases. Where, upon trial of murder, the evidence raised the issue of provoking a difficulty, the court should have charged that defendant, in seeking an explanation from the deceased, had the right to arm himself, and that this would not of itself forfeit his right of self-defense, leaving it to the jury to pass upon the circumstances; but properly refused a requested charge that the jury should not consider this fact. Prendergast, Judge, dissenting. 6. —Same—Charge of Court — Abandoning Difficulty. Where, upon trial of murder, tne evidence showed that the whole transaction was continuing and occurred in a very short space of time, there wasi no error in the court’s refusal to charge upon abandoning the difficulty. Following Wilson v. State, 71 Texas Crim. Rep., 404. 7. —Same—Evidence—Cross-examination—Credibility of Witness. While the rule is that considerable latitude is permitted on crossi-examination to show the bias, prejudice, etc., of a witness, and that the witness was formerly convicted of a felony or a misdemeanor involving moral turpitude, when not too remote, yet the State should not have been permitted to show that the sheriff.tried to arrest the witness who ran and that the former fired at him, etc,, while seeking illicit relationship with a woman. Prendergast, Judge, dissenting. 8. —Same—Evidence—Cross-examination—Moral Turpitude. ■ While it was permissible to prove by a witness on cross-examination that ■he had been prosecuted for theft, if not too remote, yet testimony that the witness had been shot at when caught stealing was inadmissible. Prendergast, Judge, dissenting. 8. —Same—Evidence. Where the State was permitted to introduce testimony of improper relationship by deceased and another with a prostitute, etc., and that a prosecution therefor by defendant against deceased had been dismissed, defendant should have been permitted to show the ground of such dismissal. Prendergast, Judge, dissenting. 9. —Same—Practice on Appeal. Where more or less other important questions are raised in the record which can not arise on another trial, it is unnecessary to discuss them.
81 Tex. Crim. 402Bostick v. State (1917)
Gaming — Judgment Nisi — Plea o£ Guilty — Pinal Judgment: Where appellant’s bail bond has been forfeited, and he thereafter demanded a trial to plead guilty, which the court declined, the matters can not be considered on appeal in the absence of a final judgment in the record; besides, as there was no notice of appeal, etc., appeal must be dismissed.
81 Tex. Crim. 403Woods v. State (1917)
Vagrancy — Hearsay Evidence, Where appellant was charged with vagrancy and being a common prostitute, etc., and the State was permitted to prove by witnesses that they had 'heard; several men say that they had had intercourse with appellant, etc., such testimony was hearsay and reversible error.
81 Tex. Crim. 404Bostick v. State (1917)
The opinion states the case.
81 Tex. Crim. 405Ex Parte Grimes (1917)
The opinion states the case.
81 Tex. Crim. 407Hargrove v. State (1917)
Carrying Knucks — Continuance—Reversible Error. . Where, upon trial of unlawfully carrying knucks, the absent testimony set out in the defendant’s application. for a continuance was material, and he ’had used all diligence to secure the witnesses, the application should have been granted.
81 Tex. Crim. 408Kelley v. State (1917)
81 Tex. Crim. 408Kelly v. State (1917)
Tried below before the Hon. A. J. Gates. Appeal from a conviction of slandering a female; penalty, a fine of one hundred dollars and thirty days confinement in the county jail.
81 Tex. Crim. 411Ex Parte Bostick (1917)
1. —Gaming—Ho tice of Appeal. In the absence of notice of appeal in the transcript, the appeal must be dismissed. 2. —Same—Bystanders’ Bill — Affidavit—Attorney and Client. Where bystanders signed and swore to the bill of exceptions, and said oath was taken before the, attorney in the case, the same can not be considered on appeal. 3. —Same—Plea of Guilty — Misdemeanor. See opinion suggesting that the plea of guilty in a misdemeanor case should have been accepted by the court, and eases may arise when the prayer for discharge under habeas corpus may be granted, if the case is properly presented.
81 Tex. Crim. 412Bostick v. State (1917)
1. —Judgment Nisi — Forfeited Bail Bond — Notice of Appeal — Transcript. In the absence of a notice of appeal, and of the fact of a faulty transcript, the record can not be considered on appeal. 2. —Same—Affidavit—Bill of Exceptions — Attorney and Client. A bystander’s bill of exception, to which affidavit is attached taken by the attorney in the case, can not be considered on appeal.
81 Tex. Crim. 413Ex Parte Ramseur (1917)
From Lee County. Original habeas corpus proceeding, on application of a delinquent child, who was convicted for burglary under indictment, and sentenced to three years to the Boys’ Industrial School. The opinion states the case.
81 Tex. Crim. 416Williams v. State (1917)
1. —Murder—Evidence—Bill of Exceptions. Where the bill of exceptions failed to allege the relation of the excluded testimony to the issues in the case, and its probable effect thereon, the same could not be considered on appeal. 2. —Argument of Counsel — Practice on Appeal. Where, upon trial of- murder, the State’s counsel in his argument indulged in legitimate inferences .and deductions from the facts in the case, there was no reversible error. 3. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the jury was warranted in finding defendant guilty of said offense under the facts of the case, and a charge of the court more favorable than the law required, there was no reversible error, and the conviction is sustained.
81 Tex. Crim. 419Briscoe v. State (1917)
The opinion states the case.
81 Tex. Crim. 424Sessions v. State (1917)
The opinion states the case.
81 Tex. Crim. 444Ervin v. State (1917)
The opinion states the case.
81 Tex. Crim. 445Flores v. State (1917)
81 Tex. Crim. 445Flores v. State (1917)
The opinion states the case.
81 Tex. Crim. 445Vacio v. State (1917)
Assault With Intent tq Murder — Practice on Appeal. In the absence of bills of exceptions, where the indictment is sufficient, as well as the evidence to support it, the judgment must be affirmed.
81 Tex. Crim. 446Smith v. State (1917)
The opinion states the case.
81 Tex. Crim. 448Robinson v. State (1917)
1. — Occupation—Intoxicating Liquors — Charge of' Court. Upon trial of pursuing the occupation of selling intoxicating liquors in prohibited territory, the evidence tended to prove that defendant had made one sale of intoxicating liquors to each of the parties named in the indictment, hut no evidence of more than, one sale to either of them or anyone else, and the issue of fact arose as to whether there was a sale to one of the parties named or whether defendant in that instance acted as the agent of said party, the court’s charge should have instructed the jury that it was essential.to a conviction that the State prove that defendant made such sale to said party, and was not acting as his agent as requested by the defendant, and a failure to do so was reversible error. Following Mizell v. State, 59 Texas Crim. Rep., 226, and other cases. 3. — Same—Rule Stated — Two Sales — Proof Necessary, It is essential in this class of cases that the indictment allege the making of two sales-, naming the parties to whom they were made, and such allegation must he proved, before a conviction can he sustained. Following Jones v. State, 76 Texas Crim. Rep., 239, and other cases.
81 Tex. Crim. 450Davis v. State (1917)
1. —Murder—Self-defense—Charge of Court- — Theft. Where, upon trial of murder, the evidence showed that defendant was in the act of stealing in the night-time, he could not rely upon self-defense, although the owner hailed' him and even shot at him; however, the court submitted self-defense in his favor, and there was no reversible error; besides, the defendant did not except to the court’s charge at the time or ask for special instruction. 2. —Same—Manslaughter—Charge of Court. Where, upon trial of murder and a conviction of that offense assessing the death penalty, the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon; besides, defendant did not except to the court’s charge on this ground. - u 3. —Same—Imperfect Right of Self-defense. Where, upon rehearing, t'he appellant contended that although he was caught in the act of theft, that deceased shot at him or somebody with him before lie shot deceased, and while defendant was running away, and that the court should therefore have instructed on manslaughter, yet the record showed that the court charged on perfect self-defense in a manner more favorable to appellant than was justified under the law and the facts, there was no reversible error. Following Young v. State, 53 Texas Crim. Rep., 416, and other cases. Besides, no exception was taken to the court’s charge. 4. — Sams—Rule Stated. The submission of the appellant’s defensive act to the jury in a light more favorable than the law required does not make the failure to submit it with a limitation, reversible error, or condemn the trial for fairness and impartiality, and there is no reversible error.
81 Tex. Crim. 456Garcia v. State (1917)
1. — Theft—Statement of Facts — Practice on Appeal. Where, upon appeal from a conviction of theft, the record showed that the indictment was regular, exceptions to the charge of the court and the evidence can not be considered on appeal, in the absence of a statement of facts. Following Ruiz v. State, 48 Texas Grim. Rep., 470. 3. — Same—Motion for New Trial — Misconduct of Jury. Where the bill of exceptions alleging misconduct of the jury was filed subsequent to the adjournment of the court at which defendant was tried, the same can not be considered under an assignment in the motion for new trial. Following Black v. State, 41 Texas Grim. Rep., 185, and other cases. Besides there was no error, if considered.
81 Tex. Crim. 457Charles v. State (1917)
1. — Rape—Assault With Intent to Rape — Charge of Court. Where, upon trial of rape, the court refused a requested charge to submit the issue of assault with intent to rape, there was no reversible error, as the evidence showed that the assault was not only made but rape was fully accomplished, defendant denying any assault whatever. Following Dusek v. State, 48 Texas Crim. Rep., 519. 3. — Same—Evidence—Practice in District Court. Upon trial of rape, to which defendant pleaded not guilty, there was no error in admitting testimony describing the ground where the alleged offense was committed, and the finding of a comb on the day after the alleged offense, in connection with the other facts and circumstances in the case. Following Sharp v. State, 71 Texas Crim. Rep., 633. 3. —Same—Evidence—Declarations of Defendant. Upon trial of rape, there was no error in admitting in evidence the declarations of defendant denying that he had pushed a white woman in the gulley as testified to by State’s witness, and claiming t'hat it was a colored woman. Following May v. State, 33 Texas Crim. Rep., 74, and other cases. 4. —Same—Witness—Sufficiency of the Evidence. Where, upon trial of rape, the State’s case depended largely upon the testimony of a negro boy about twelve years of age supported by other facts and circumstances, all of which sustained the conviction, there was no reversible error, as the question of the competency of the witness was a matter , for the court. 5. —Same—Testimony of Prosecutrix — Sufficiency of the Evidence. While the courts have uniformily scrutinized with extreme care the testimony of the injured female in cases of rape, etc., yet this rule is not to prevent a conviction when there is nothing to discredit her testimony as in the instant case, which was corroborated by the defendant, by other testimony, and circumstances in the case, and the conviction must be sustained in case of rape assessing the death penalty.
81 Tex. Crim. 460Lagow v. State (1917)
1. — Aiding Escape — Evidence—Local Option — Moral Turpitude. Upon trial of aiding t'he escape of a prisoner from jail, it was. reversible error to permit the 'State on cross-examination of defendant, in the absence of any testimony that local option was in effect in the county of the prosecution at the time inquired about, whether or not defendant had been indicted in the last two years in said county for violating the local option laws, as the judge could not judicially know that local option was> in effect, and that the felony statute applied and affected defendant’s credibility as a witness. Following Leonard v. State, 53 Texas Crim. Rep., 187, 109 S. W. Rep., 149, and other cases. Prendergast, Judge, dissenting. 2. — Same—Argument o£ Counsel — Practice in the District Court. Where, upon trial of aiding the escape of a prisoner from the jail, it was more than doubtful that the evidence was sufficient to sustain the conviction, the argument of State’s counsel to the effect that the jury knew defendant was guilty because the officers had been chasing him for some time for violating the local option laws, there being no testimony that local option was in effect, the' same was reversible error. Prendergast, Judge, dissenting.
81 Tex. Crim. 465Messenger v. State (1917)
The opinion states the case.
81 Tex. Crim. 471Hunter v. State (1917)
1. — Attempted Abortion — Indictment. Where, upon trial of attempted abortion, the indictment conformed to precedent, the same was sufficient. 3. — Same—Rule Stated — Attempted Abortion. If the accused shall use means to produce an abortion which was calculated to have that effect, he is guilty of an attempt to produce an abortion, though the means used should fail to produce an abortion. Distinguishing Williams v. State, 19 S. W. Rep., 897, Fretwell v. State, 43 Texas Crim. Rep., 501. 3. —Same—Sufficiency of the Evidence. Where, upon trial for an attempted abortion, the evidence was sufficient to sustain a: conviction, there was no reversible error. Following Cave v. State, 33 Texas Crim. Rep., 535, and other cases. 4. —Same—Newly Discovered Testimony — Bill of Exception. Where the bill of exceptions did not properly present the court’s refusal to grant a motion for new trial on account of newly discovered testimony, there was no' reversible error ; besides, when considered, the record showed that defendant knew before the trial of the alleged newly discovered testimony. Following Gray v. State, 65 Texas Crim. Rep., 206, and other cases.
81 Tex. Crim. 476Weige v. State (1917)
1. — Murder—Insanity—Insane Delusion — Evidence. Where, upon trial of murder, the defendant pleaded insanity, and claimed to have acted, upon an insane delusion of illicit relations between his father and his wife, general rumors as to this relation circulating in the community, are manifestly not admissible in evidence, unless it was brought to the knowledge of the defendant; however, the same fact was proved without objection by another witness. Following McLane v. Elder, 23 S. W. Rep., 757. S. — Same—Argument of Counsel — Insanity—Charge of Court. Where, upon trial of murder, the defendant pleaded insanity and supported his plea with strong evidence, the court submitting the issue to t'he jury in a proper charge, it was reversible error on the part of the State’s counsel' to disregard the court’s charge to acquit in the event the defendant was found insane, and urge the jury to convict the defendant because then he would not go at large, would be tried for lunacy, and sent to the asylum; said argument not being in response to argument by the defendant. Following Smith v. State, 55 Texas Crim. Rep., 569. Prendergast, Judge, dissenting. 3. — Same—Objections to Argument of Counsel — Practice in District Court. Where, upon appeal from a conviction of murder, appellant complained of a rule in the trial court which prohibited counsel for the defendant to make objection to the argument of State’s counsel in open court, and required that such objection be made in a whisper to the trial judge, all of which was borne out by the record; held, that this exceeded the authority of the trial court, and that defendant has a right to be heard by himself and counsel under the bill of rights. Following Reeves v. State, 34 Texas Crim. Rep., 483, and other cases. Prendergast,- Judge, dissenting.
81 Tex. Crim. 491Waters v. State (1917)
1. —Theft From Person — Sufficiency of the Evidence. Where, upon trial of theft from the person, the evidence although conflicting was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Bill of Exceptions — Practice on Appeal. Where the court qualified defendant’s bills of exception and he accepted the same, he was bound thereby. 3. —Same—Suspended Sentence — Practice in District Court. Where defendant properly pleaded for a suspended sentence, and in cross-examination by the State was permitted to prove her character, which showed -arrest for felony, but offered no testimony that she had never before been convicted of felony, and the court refused to submit a charge on a suspended sentence, but suggested to the attorney for defendant to withdraw the application for suspended sentence, which he refused to do, there is no reversible error.. 4. —Same—Motion for Mew Trial — Newly Discovered Evidence. Where the motion for new trial on the ground of newly discovered evidence showed no diligence and the same was not properly supported by affidavit, the same was properly overruled. Following Gray v. State, 65 Texas Crim. Rep., 204,
81 Tex. Crim. 493Jonks v. State (1917)
The corrected information was in the following form: In the name and by the authority of the State of Texas, I, John B. McNamara, county attorney of McLennan County, in said State - of Texas, now here in the County Court of McLennan County, at the November term, A. D. 1916, thereof, do present this information founded upon the written affidavit of J. S. Dixon, herewith filed, which information charges and presents to said County Court that Ed Jonks in the County of McLennan…
81 Tex. Crim. 493Janks v. State (1917)
81 Tex. Crim. 496Barrett v. State (1917)
The opinion states the case.
81 Tex. Crim. 496Hargrove v. State (1917)
The opinion states the case.
81 Tex. Crim. 501Utsler v. State (1917)
1. —Abandonment of Minor Children — Information—Complaint. Where, upon trial of defendant for deserting his minor children and failing to support them, they being under necessitous circumstances, the complaint and information followed substantially the language of the statute, this was all chat was necessary, and such pleading was sufficient. Following Hatch v. State, 76 Texa's Crim. Rep., 423. 2. —Same—Words and Ehrases — Sufficiency of Information. Where the information alleged that defendant was the father of the four children named therein, and thereafter styled them the injured party, and that they were under the age of sixteen years, the same was sufficient. 3. —Same—Name of Affiant — Complaint. Where the affidavit or complaint was signed by the affiant making the same, sworn to before the proper officer, and attested by a proper jurat, a motion to quash because the affiant’s name was not given in the body of the complaint, was correctly overruled. Following Upton v. State, 33 Texas Crim. Rep., 231, and other cases. 4. —Same—Sufficiency of the Evidence. Where, upon trial of deserting his minor children and failing to support them, they being under necessitous circumstances, the evidence sustained the conviction, the same will be sustained. 5. —Same—Continuance—Theory of Defense. Where defendant’s application for a continuance alleged that the absent witnesses would testify that he in their presence and in the presence of his wife offered to take said children and provide for them, which she refused, there was no error in overruling the application, as neither the law nor justice would excuse him for failure to support and maintain his minor children, even though his wife refused to surrender possession of them.
81 Tex. Crim. 506Soders v. State (1917)
1. — Burglary—Evidence—Other Transactions. Upon trial of burglary, there was no error in admitting in evidence, as part of the transaction, that whisky was found outside of the saloon, although it was not shown by direct evidence that this had been taken out of the saloon. Following Kubacak v. State, 59 Texas Crim. Rep., 165, and other eases. 8. — Same—Charge of Court — Circumstantial Evidence. Where, upon trial of burglary, the facts in the case brought the defendant in such close juxtaposition to the breaking and entering as to render a charge on circumstantial evidence unnecessary, there was no error in the court’s failure to charge on circumstantial evidence. Following Montgomery v. State, 55 Texas Crim. Rep., 502, and other eases. 3. — Same—Charge of Court — Requested Charge. Where, upon trial of burglary, the court’s charge was substantially correct, a special instruction covering the same subject not materially different from the main charge was correctly refused.
81 Tex. Crim. 508Jenkins v. State (1917)
1. — Theft of Cattle — Accomplice—Corroboration—Sufficiency of the Evidence. Where, upon trial of theft of cattle, the accomplice’s testimony was sufficiently corroborated to sustain the conviction there waá no reversible error. 8. — Same—Buie Stated — Accomplice Testimony. A very safe rule in testing the sufficiency of the corroboration as tending to connect the defendant with the offense is the elimination of the testimony of the accomplice, and then ascertain from the remainder of the facts whether there is evidence, either positive or circumstantial, which tends to connect the defendant with the commission of the crime; and, if so, the accomplice is corroborated, and applying this rule to the.facts in the instant case, the conviction is sustained. 3. — Same—Evidence:—Weight of Testimony — Identification—Opinion of Witness. Where, upon trial of theft of cattle, the State’s witness testified that to the best of his knowledge one of the men in possession of this cow was defendant, and that he had known him for quite a while, the same is not opinion testimony, but its weight is to be determined by the jury. Following Tate v. State, 35 Texas Crim. Rep., 231, and other cases.
81 Tex. Crim. 511Blacklock v. State (1917)
1. — manslaughter—Self-defense—Charge of Court — Apparent Danger. Where, upon trial of murder and conviction of manslaughter, the testimony raised the issue of apparent danger, the charge on self-defense should not have been restricted as to the amount of force ■ defendant was authorized to use, as the law with reference, to resort to other means or no jnore force than was necessary does not apply to self-defense actual or apparent, nor was he required to retreat, etc., and where the court charged that defendant could not use any more force than was necessary, etc., the same was reversible error. 3. — Same—Practice on Appeal. The question of continuance and the manner of summoning the jury will not arise on another trial as presented in this case, and need not, therefore, be considered.
81 Tex. Crim. 514Royston v. State (1917)
Aggravated Assault — Information—Insufficiency of the Evidence. Where the information alleged an aggravated assault to 'have been committed with a deadly weapon, and also serious bodily injury and the proof was insufficient to sustain the allegation, the conviction could not be sustained. Prendergast, Judge, dissenting.
81 Tex. Crim. 516Wilson v. State (1917)
Tried below before the Hon, O L. Lockett. Appeal from a conviction of perjury; penalty, two years imprisonment in the penitentiary.
81 Tex. Crim. 516Montgomery v. State (1917)
Selling Patent Medicine — Notice of Appeal — Recognizance, Where, upon appeal from a conviction of selling patent medicines without license, the record contained neither statement of facts nor bill of exceptions, and no notice of appeal, the appeal must be dismissed, although a recognizance has been entered in the court below. However, if notice of appeal had been entered, the record showed no reversible error.
81 Tex. Crim. 517Ex Parte Mitchell (1917)
Habeas Corpus — Bail—Return of Writ. Where relator was indicted in the county where the alleged offense was committed and the venue of the ease was changed to another county in the same judicial district, in which latter county the district judge granted a writ of habeas corpus and tried relator denying bail, held, that the writ was returnable to the county where the alleged offense had been committed, and the cause must be reversed and remanded for further proceedings.
81 Tex. Crim. 518McCoy v. State (1917)
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. 3. — Same—Trial Court — Rule Stated — Question of Eact — Judge. Where, upon trial of a ’ violation of the local option law, in the County Court, defendant waived a jury, the trial judge has the same functions as the jury with reference to the credibility of witnesses, the weight to be given their testimony, etc., and, where the evidence was sufficient to sustain the conviction, there was no reversible error. 3. — Same—Evidence—Bill of Exception — Practice on Appeal. Where the bill of exceptions to the objection to testimony was> too uncertain and vague to be considered on appeal, there was no reversible error. '
81 Tex. Crim. 522Shepperd v. State (1917)
1. —Local Option — Identity of the Defendant — Insufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence failed to show the identity of the defendant as the person who sold the alleged liquor, a conviction could not be sustained. 2. —Same—Defendant’s Failure to Testify — Argument of Counsel — Requested Charge. Where, upon trial of a violation of the local option law, the court at the request of defendant instructed the jury that they would not consider defendant’s failure to testify, and State’s counsel, over the objection of defendant, commented on said failure to testify, the same was reversible error. Following Dougherty v. State, 59 Texas Crim. Rep., 464, and other cases'. 3. —Same—Hearsay Evidence. Where a State’s witness was permitted to testify that the prosecuting witness, in the' absence of the defendant, told the witness that he bought the alleged liquor from the defendant, the same was reversible error, as the testimony is purely hearsay. Following Kirksey v. State, 61 Texas Crim. Rep., 641, and other cases. 4. —Same—Practice on Appeal. Where the judgment is reversed and the cause remanded, it is not necessary to consider matters which are not likely to reoccur on another trial.
81 Tex. Crim. 524Joiner v. State (1917)
The opinion states the case.
81 Tex. Crim. 526Hughes v. State (1917)
1. — Murder—Conduct and Remarks by the. Judge. Where, upon trial of murder, after defendant’s witness had testified to his theory of t'he case, and at the termination of his examination and cross-examination, the court beckoned to the deputy sheriff, and after a short whispered conversation the deputy sheriff took the witness frofli the presence and in front of the jury and carried him to jail, which was within a few feet of the jury, the same was reversible error. Following Kirk v. State, 35 Texas Crim. Rep., 224, and other cases. Prendergast, Judge, dissenting. 3. — Same—Jury and Jury Law — Remarks by Judge. Where, upon trial of murder, the jury had several times returned into the court and reported that they could not agree, and upon inquiry of the judge stated that they stood 11 to 1, whereupon the court remarked, “Gentlemen, it-seems that you are practically agreed. I will have to send you out again. I will not be authorized to discharge you,” etc., the same was reversible error. Prendergast, Judge, dissenting.
81 Tex. Crim. 529Oliver v. State (1917)
The opinion states the case.
81 Tex. Crim. 534Smith v. State (1917)
1. —Passing Forged Instrument — Indictment—Motion in Arrest of Judgment. Where, upon trial of (knowingly attempting to pass a forged note, the indictment alleged in due form the attempt to pass the instrument, and also in the same count at the conclusion of same alleged that he did so pass said instrument, but not as to whom, there was no error in overruling a motion in arrest of judgment filed after trial. 2. —Same—Rule Stated — Pleading—One Count. Where the indictment for attempting to pass a forged instrument as defined under article 937, Penal Code, also alleged in the same count that defendant did pass same, although the two offenses may be called distinct they were embraced in the same definition, etc., and the completed offense implied the other not yet completed, and there was no repugnancy in the pleading. 3. —Same—Rule Stated — Pleading—Indictment. 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 for purposes of pleading, and they may be charged conjunctively in the same count. 4. —Same—Rule Stated — Pleading—Indictment. When offenses are several in their nature, and yet of such a character that one of them, when complete, necessarily implies the other, there is no such repugnancy as to make their joinder improper. Following Randle v. State, 41 Texas, 292, and other cases. And the completed passing of a forged instrument necessarily implies an attempt to do so. 5. —Same—Pleading—Surplusage—Rule Stated. Redundant allegations and those which are in no manner descriptive of the offense and not essential to constitute the offense may he treated as mere surplusage, and where the indictment alleged an attempt to pass a forged instrument and also defectively alleged the completed passing of same, but omits to allege on whom it was passed, the latter allegation was surplusage. 6. —Same—Rule Stated — Pleading—Duplicity—Verdict—Arrest of Judgment. It is too late after verdict, on a motion to arrest the judgment, where the indictment is merely duplicitous to quash same. Following Hickman v. State, 64 Texas Crim. Rep., 161, and other cases. 7. —Same—Bill of Exceptions — Filing. Where appellant failed to file bills' of exception within thirty days after which his motion for new trial was overruled, at a term of the District Gourt continuing more than eight weeks, the same can not be considered on appeal, 8. —Same—Sufficiency of the Evidence. Where, upon trial of attempting to .pass a forged instrument, the evidence was sufficient to sustain the conviction, there was> no reversible error.
81 Tex. Crim. 538Smith v. State (1917)
Burglary — Statement of Facts — Bill of Exceptions. In the absence of a statement of facts and hills of exceptions, objections to the charge of the court, to omissions and rejection of testimony, and the sufficiency of the evidence can not be considered on appeal.
81 Tex. Crim. 539Henderson v. State (1917)
The opinion states'the case.
81 Tex. Crim. 539Sheffield v. State (1917)
Theft — Indictment—Practice on Appeal. Where, upon trial of theft, the record on appeal showed that the indictment was sufficient the judgment must h,e affirmed, in the absence of bills of exception and assignments of error.
81 Tex. Crim. 540Gearheart v. State (1917)
1. — Occupation—Selling Intoxicating Liquors — Local Option Election. The proposition that the legislative Act creating the offense of pursuing the occupation of selling intoxicating liquors in prohibited territory can be the foundation of a prosecution only in territory in which the election was held subsequent to the passage of the Act is untenable, and was decided adversely to defendant’s contention in former decisions of this court. Following Fitch v. State, 58 Texas Crim. Rep., 367, and other cases. Distinguishing Lewis v. State, 58 Texas Crim. Rep., 351, and other cases. 2. —Same—Legislative Construction — Rule Stated — Judicial Constructions. When the Legislature revises the statutes of the State after a particular statute has been judicially construed without changing that statute, it is presumed that the Legislature intended that the same construction should continue to be applied to the statute, and this applies with peculiar force to the instant case. Following Mizell v. State, 59 Texas Crim. Rep., 226, and other eases. 3. —Same—Stare Decisis — Rule Stated. Where the decisions of the same court upon a given question are conflicting, it often becomes necessary to determine which is supported by the better reason, and to overrule the cases holding to an opposite view; but when a rule has been once deliberately adopted and declared and uniformly followed, it should not be abandoned except upon the most urgent reason. Following Lyle v. State, 193 S. W. Rep., 684. 4. —Same—Insufficiency of the Evidence — Occupation—Business. The statute under which this prosecution is maintained requires proof that the accused was engaged in the business of selling intoxicating liquors in prohibited territory, and that defendant made at least two sales of liquor in pursuance of said business, and where, as in the instant case, the proof falls short of this, the judgment must be reversed and the cause remanded. 5. —Same—Indictment. Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibited territory, the indictment followed approved precedent, there is no reversible error.
81 Tex. Crim. 540Peace v. State (1917)
Burglary — Private Residence — Statement of Pacts. In the absence of a statement of facts it must be presumed that the defendant has had a fair and impartial trial, and that the evidence sustains the conviction.
81 Tex. Crim. 545Dover v. State (1917)
The opinion states the case.
81 Tex. Crim. 554Huey v. State (1917)
The opinion states the case.
81 Tex. Crim. 566Latham v. State (1917)
1. — Simple Assault — Principals—Misdemeanor. Where, upon trial of simple assault, the evidence showed that the defendant offered a dollar to a certain party to give a third party a whipping, which he did, this was an assault at the instigation of the defendant, and it would make no difference whether he was immediately present or not, as this would make him a principal in a misdemeanor case. Following Houston v. State, 13 Texas Crim. App., 595. 3. — Same—Rule Stated — Felony—Accomplice. Had the defendant advised another to commit a felony, he might have been considered as an accomplice, but the distinction between accomplice and principal is not recognized in this State so far as misdemeanors are concerned.
81 Tex. Crim. 567Ward v. State (1917)
The opinion states the case.
81 Tex. Crim. 568Fisher v. State (1917)
1. —Occupation—Selling Intoxicating Liquors — Special Term of Court» Where the District Court was in session in another county in the same district, it was no defense that defendant was tried during a special 'term of said court in another county of said district, and the motion to quash the indictment on that ground was correctly overruled. Hollowing Elliott v. State, 58 Texas Crim. Rep., 200. 2. —Same—Alibi—Charge of Court. Where the court’s charge correctly submitted the issue of an alibi in his main charge, there was no error in refusing a requested charge on the same subject. 3. —Same—Definition of Offense — Charge of Court. The criticism of the definition of the offense contained in the main charge can not be sustained, as the same is upheld by precedent. Following Fitch v. State, 58 Texas Crim. Rep., 367, and other cases. 4. —Same—Accomplice—Charge of Court. Where the evidence did not sustain the contention that the State’s witness was an accomplice, there was no error,in the court’s refusal of a requested charge thereon. Following Ray v. State, 60 Texas Crim. Rep., 138, and other cases. 5. —Same—Bill of Exceptions — Practice on Appeal. Where the bill of exceptions fails to point out the objectionable testimony, or to disclose sufficient facts to enable this court to pass upon its probable effect, it can not be considered on appeal. Following Harris v. State, 64 Texas Crim. Rep., 594. However, when considered, there is no reversible error, in as much as the trial court was not authorized to assume as a matter of law that the witnessi was an accomplice, or that his testimony was essential to a conviction. 6. —Same—Evidence—Express Company — Record of Shipment. Upon trial of pursuing t'he occupation of selling intoxicating liquors in local option territory, there was no error in permitting the State to introduce the books of the express company showing shipments of intoxicating liquor to the defendant, and to permit the express agent to testify that the books contained a certain entry of a delivery of whisky to the defendant on a certain day, although in the handwriting of another agent, with which the witness was familiar. Following Stephens v. State, 36 Texas Crim. Rep., 382, and other cases. 7. —Same—Charge of Court — Allegations—Proof—Two Sales. Where, upon trial of pursuing the occupation of selling intoxicating liquors in local option territory, the indictment alleged three separate sales of such liquor to a party named therein, the charge of the court should 'have required the jury to find from the evidence as a predicate for conviction that two sales of intoxicating liquor had been made by the defendant to such person, although there was evidence that defendant had made a sale to a person not named in the indictment, under a general allegation that sales were made to unknown parties. Following Rhodes v. State, 75 Texas Crim. Rep., 659. 8. —Same—Unknown Parties — Indictment. It is not to. be understood that in a case where the names of the purchasers are unknown, and can not be ascertained by the grand jury, that an indictment can not be drawn, and the prosecution maintained, but the record in the instant case does not show such a contingency.
81 Tex. Crim. 574Fowler and Atkins v. State (1917)
1. — Failing to Keep Register of Automobile — Punishment—Invalid Statute. Upon trial of t'he offense of operating a repair shop, etc., for the purpose of repairing automobiles under the recent Act of the Thirty-fifth Legislature, page 368, under which defendant was convicted for failing to keep a register, etc., of said automobile. Held that said act is invalid in as much as no punishment is denounced against any citizen of this State, and only applies to a garage, workshop, repair shop, etc., and not to any person, and the word garage is not synonymous with person or citizen. 3. — Same—Secretary of State — Certification of Enrolled Bill. Where the Secretary of State complied with the law in publishing and certifying the enrolled bill passed by the Legislature, with all such grammatical and other errors as it contained, it must be held to be correctly certified and reported.
81 Tex. Crim. 577Le Master v. State (1917)Reversed and remanded, and rehearing 'denied
L. Umphres, Judge. Mike C. Le Master was convicted of unlawfully becoming indebted to a state bank of which he was president, and appeals.
81 Tex. Crim. 577Lemaster v. State (1917)
1. —Violation of Bank Daw — President of State Bank — Indictment. Where, upon trial of becoming indebted to a State bank of which defendant was president without the consent of the board of directors, etc., the indictment followed the statute and approved precedent, the same was sufficient on motion to quash. Davidson, Presiding Judge, dissenting. 2. —Same—Evidence—Other Transactions — System—Bes Grestae. Where defendant was indicted as president of a State bank for becoming indebted thereto in the sum of $8000 without the consent of a majority of tlx board of directors, which transaction was based upon a. certain cattle deal, it was reversible error to permit the State to introduce testimony of other subsequent cattle deals which had no connection with the transaction alleged in the indictment, and especially as the court failed to limit said testimony, which did not show system and was no part of the res gestae. 3. —Same—Evidence—Withdrawal of Testimony — Cross-examination. Where, upon trial of a violation of the State bank law, the State was permitted to introduce testimony of some matters that occurred on the trial of a civil case, which the witness took down as a stenographer, and in which the defendant had testified, and it developed in the course of the testimony that on the trial of said civil ease the defendant won the suit, the State should not have been permitted to withdraw said testimony on the ground that it did not purpose to introduce the record in said civil case, and this although much of the favorable testimony for the defendant was brought out on cross-examination. Following Speight v. State, 1 Texas Crim. App., 552, and other cases. 4. —Same—Rule Stated — Adverse Testimony. Where the. State introduced a witness who testified without objection by the defendant, the State could not, because the testimony was somewhat damaging to its ease, withdraw it from the jury, and this although much of it was brought out on cross-examination by t'he defendant. Following Moore v. State, 6 Texas Crim. App., 562, and other cases. 5. —Same—Charge of Court — Variance. Where the indictment charged the defendant with becoming indebted to a State bank as its president, without the consent of the hoard of directors, etc., and did not charge that he was criminally liable as a director of said bank, it was error to base a charge of the court upon that character of case. 6. —Same—Partnership—Charge of Court — Secret Partner. Where, upon trial of becoming indebted to a State bank of which defendant was president, etc., the State relied on the testimony of one of its witnesses that defendant was a secret partner in the profits and losses that might arise in a certain option contract concerning a cattle deal, for which the hank was supposed to have furnished the money without the consent of the directors, etc., the jury should have been instructed that in order to convict the defendant, that they must find that defendant became indebted to the bank by means of this partnership, and the failure of the court to so charge is reversible error. 7. —Same—Charge of Court — Partnership. Where, upon a trial of the violation of the State hank law in which the State claimed that the defendant was a secret partner with others in a certain cattle deal in which he, as president of the bank, had advanced money of the bank without the consent of a majority of the hank directors, etc., the court did not apply the law of partnership to the facts in the case and how defendant was connected therewith, but merely gave the law of partnership, the same was reversible error, although somewhat favorable to the defendant. 8. —Same—Charge of Court — Partnership—Converse Proposition. Where, upon trial of a violation of the State bank law, the issue arose as to whether the defendant was a secret partner in a certain cattle deal upon which he, as president of the hank, advanced the bank’s money without the consent of a majority of the directors of the bank, and the court’s charge only submitted one side of it, and did not charge the converse of the proposition, the same was reversible error. 9. —Same—Insufficiency of the Evidence — Practice in the District Court. See opinion of the judge who wrote same doubting that the evidence is sufficient to sustain the conviction, and suggesting that if the case is further prosecuted, the testimony should he limited to the transaction upon which the State claims a conviction, and not to other transactions which in no way related to the one under investigation. 10. —Same—Motion for Rehearing — Matters Stated in Opinion. • Where the State contended that it was not responsible for the withdrawal of unfavorable testimony which had been given by a State’s witness, and that-it had only undertaken to withdraw the testimony which the State introduced and did not undertake to withdraw the testimony introduced on cross-examination, and it appeared from the record that the matter was so intermingled with other matters in the case that said testimony could not have been withdrawn, from the jury without injury to the defendant, there was reversible error.
81 Tex. Crim. 588Reyes v. State (1917)
The opinion states the case.
81 Tex. Crim. 597Jackson v. State (1917)
1. — Murder—Charge of Court — Manslaughter. Where, upon trial of murder and conviction of manslaughter, the evidence, is sufficient to sustain the conviction, under a proper charge of the court, there is no reversible error. 8. — Same—Newly Discovered Evidence — Contest—Practice in District Court. Where defendant’s motion for new trial claimed newly discovered evidence, which, the State contested attaching affidavits of witnesses thereto, and defendant filed a motion to strike out the State’s contest together with the alleged affidavits, the court correctly overruled the same, as the State had the right to file such contest. 3. — Same—Affidavit—Motion for New Trial — Newly Discovered Evidence. Where defendant’s motion for new trial alleged newly discovered evidence, to which the State filed a contest attaching written affidavit of witness, which was sworn to before the district attorney as a notary public, and defendant moved to strike out said contest, without raising the exception that the affidavit was made before said district attorney, and there was no showing in the record whether said affidavit was excluded in the consideration by the court, there "was no reversible error; besides, the alleged newly discovered testimony did not come within the scope of the rule, and defendant’s attorneys must have known of the same before the trial. 4. —Same—Discretion of Court — ITewly Discovered Testimony — Rule Stated. Alleged newly discovered testimony isi closely scrutinized and is largely confided to the discretion of the trial court, and there is no' error unless such discretion is abused. Following Templeton v. State, 5 Texas Crim. App., 398, and ether cases. 5. —Same—Rule Stated — ITewly Discovered Testimony. Where the testimony is of such a character as that it must have-been known to the counsel for the defendant before the trial, it is in no sense newly discovered evidence. Following Burton v. State, 33 Texas Crim. Rep., 138. 6. —Same—Rule Stated — Newly Discovered Evidence. Where a witness is interviewed by defendant’s counsel upon one phase of the case only and is not put upon the stand, his testimony upon another phase is not newly discovered. Following Williams v. State, 45 S. W. Rep., 572. 7. —Same—Rule Stated — ITewly Discovered Evidence. Where it appears that- the proposed witness had been subpoenaed in the case, but was not put upon t'he stand to testify, the testimony is not newly discovered. Following Powell v. State, 36 Texas Crim. Rep, 377, and other cases. 8. —Same—ITewly Discovered Evidence — Affidavit—Attorney and Client. Where defendant’s motion for new trial alleged newly discovered evidence and the State contested same attaching affidavit thereto, there was no error of the court in overruling a motion to strike out said contest, in the absence of specific exceptions to the affidavit on the ground that it was taken béfore the State’s attorney as notary public, or objection to the introduction of such affidavit in evidence, if it was offered; besides, the said alleged testimony does not come under the rule of newly discovered evidence, as defendant and his counsel must .or could have known of same before trial. Following Waggoner v. State, 190 S. W. Rep, 493.
81 Tex. Crim. 604Melton v. State (1917)
Perjury — Accomplice Testimony — Charge of Court. Where, upon trial of perjury, charging defendant with said offense before the grand jury where he had falsely testified that he had not played at a game of cards in the county of the prosecution, etc., and the conviction depended upon the testimony of three witnesses, and the testimony of one at least was that they had made an agreement with defendant not only not to testify but to testify falsely that they had not played nor seen said game played, etc., this, if true, made them accomplices to the offense of perjury and a, charge upon that phase of the testimony should have been submitted as requested by the' defendant. Following Conant v. State, 51 Texas Crim. Rep., 610, and other cases.
81 Tex. Crim. 606Moore v. State (1917)
1. — Swindling—Indictment—Pleading—Mortgage. Upon trial of swindling on account of the acquisition of a certain sum of money in the sale of certain personal property on the false representation that it was free from incumbrance, it was unnecessary to set out the mortgage which constituted the alleged incumbrance upon said property. This should be alleged with sufficient accuracy but not necessarily in haec verba. However, the indictment is defective in not affirmatively alleging the existence of the debt. Following. McElroy v. State, 67 Texas Crim. Rep., 203, 150 S. W. Rep., 797, and other .cases. 2. —Same—Election by State — Charge oí Court. Where, upon trial of swindling, and also on another count in the indictment charging fraudulent disposition of mortgaged property, which latter charge was not submitted to the jury, and only the count of swindling was submitted in the charge of the court, this was equivalent to an election by the State, and there was no reversible error. Betts v. State, 57 Texas Crim. Rep., 389, and other cases. 3. —Same—Pleading—Indictment, Where defendant was indicted for swindling, and the fraudulent disposition of mortgaged property on two different counts, the mortgage should be more fully and accurately described, t'he existence of the debt should be alleged, and that the money was acquired by defendant, etc., and the connection between the false statement and the acquisition of the money should be more definitely alleged. Following Johnson v. State, 57 Texas Crim. Rep., 347.
81 Tex. Crim. 609Ex Parte Henderson (1917)
Habeas Corpus — Misdemeanor—Appearance Bond — Motion for New Trial. Under the recent Act of the Thirty-fifth Legislature, chapter 110, article 900, C. C. P., it is provided that where the defendant is convicted in a misdemeanor case and is on bail when the trial commences, the same shall not thereby be considered discharged, until the defendant’s motion for new trial shall have been overruled by the court, and where defendant was convicted of a misdemeanor, and was held on an appearance bond, and a motion for new trial was pending, he was entitled to his discharge. Following Bennett v. State, 194 S. W. Rep., 148, and other cases.
81 Tex. Crim. 610Rayburn v. State (1917)
live Stock — Sanitary laws — Indictment—Rule of Sanitary Commission. Where defendant’s violation of the law could he predicated only upon a violation of some rule of the Live Stock Sanitary Commission, and the complaint and information contained no allegation that any such rule had been made or promulgate^, the pleading was insufficient. Hollowing Wallace v. State, 44 Texas Crim. Rep., 300.
81 Tex. Crim. 611Gold v. State (1917)
1. — Theft of Cattle — Sufficiency of the Evidence. Where, upon trial of theft of cattle, the evidence was sufficient to sustain, the conviction, there is no reversible error. Following Hall v. State, 41 Texas Crim. Rep., 423, and other cases. 3. — Same—Recent Possession — Declarations of Defendant — Circumstantial Evidence — Charge of Court. Where, upon trial of theft of cattle, there was evidence as to defendant’s possession, and his declaration with reference thereto, the court properly submitted the issue, and charged the jury that the falsity of defendant’s statement could be shown by circumstantial evidence, there was no reversible error. Following Barfield v. State, 41 Texas Crim. Rep., 19, and other cases.
81 Tex. Crim. 613Cheves v. State (1917)
Occupation — Non-intoxicating Malt Liquors — Failure to Pay Taxes. Where, upon trial of engaging in the business of selling non-intoxicating malt liquors without payment of taxes, the evidence failed to show that the liquid sold was a non-intoxicating malt liquor, and that defendant was engaged in the business of selling said liquor at any definite time, the conviction could not be sustained.
81 Tex. Crim. 614Tiger v. State (1917)
1. —murder—Sufficiency of the Evidence — Death Penalty. Where, upon trial of murder, and a conviction thereof, assessing the death penalty, was amply supported by the State’s testimony, the conviction must be sustained, although there was testimony of self-defense, which the jury evidently did not believe, as it is for the jury to pass upon the evidence and assess the penalty. 2. —Same—Evidence—Res Gestae — Impeachment. Where the testimony of the witness to which objection was raised was admissible, both on the ground of impeaching defendant’s witness and as a res gestae statement of said witness, there was no reversible error. Following Gillespie v. State, 190 S. W. Rep., 146.
81 Tex. Crim. 618Ex Parte Sparks (1917)
The opinion states the case.
81 Tex. Crim. 619Ex Parte Mitchell (1917)
The opinion states the case.
81 Tex. Crim. 620Hensley v. State (1917)
1. — Local Option — Evidence—Letters—Hearsay. Upon trial of a violation of the local option law, where defendant pleaded an alibi, and the date of the offense became a question in the case, there was no error in refusing to admit in evidence part of a letter which defendant’s witness had written to his father that defendant stayed in another county until after the offense was committed. This was clearly hearsay, as there was no effort to impeach said defendant’s witness and the testimony did not come within any of the exceptions to the rule of excluding hearsay testimony. Following Wilkerson v. State, 60 Texas Crim. Rep., 388, and other cases. 2. —Same—Date of Offense — Evidence. Where there was some question about the date of the offense, there was no error in permitting a witness to testify that he fixed the date on which the defendant was last in the county of the prosecution by a conversation had with a person who had served on the jury, the fact as to the fight, etc., having been withdrawn by the court but replaced on cross-examination. 3. —Same—Newly Discovered Evidence — Postponement—Practice. Where, upon hearing of a motion for new trial, defendant presented an affidavit of a witness who was then out of the State which alleged that the witness was present on a certain occasion with reference to the date of the offense, but the record showed that the same testimony could have been procured from other parties, the failure to account for such testimony and to seek a postponement to obtain it not being explained as required by law, there was no error in overruling the motion. Following Wilson v. State, 37 Texas Crim. Rep., 156, and other eases.
81 Tex. Crim. 620Henderson v. State (1917)
The opinion states the case.
81 Tex. Crim. 623McHam v. State (1917)
1. —Simple Assault — Sufficiency of the Evidence — Conflict of Testimony. Where the defendant was convicted of simple assault and the testimony was sufficient, although conflicting, to sustain the conviction, there was no reversible error. 2. —Same—Evidence—Res Gestae. Where, upon trial of simple assault, all of the testimony to which the defendant raised objection was res gestae of the transaction, and directly connected therewith, there was no reversible error. Following Muldrew v. State, 73 Texas Crim. Rep., 433. Besides, the defendant received the lowest punishment. 3. —Same—Requested Charge. Where the requested charge was sufficiently embraced in the court’s main charge, there was no error in refusing to submit it.
81 Tex. Crim. 625Davis v. State (1917)
Assault With Intent to Murder — Declaration by Defendant. Where, upon trial of assault with intent to murder, part of defendant’s declaration as to how he committed .the offense was introduced in e~idenee by the State, the defendant should have been permitted to introduce the balance of his declaration, showing exculpatory facts which would have raised the issue of self-defense, which was not submitted to the jury. Following Sims v. State, 163 S. W. Rep., 79, and other cases.
81 Tex. Crim. 626Spurlock v. State (1917)
The opinion states the case.
81 Tex. Crim. 627Martinez v. State (1917)
I. —Murder—Self-defense—Charge of Court — Provoking Difficulty. Where, upon a trial of murder and a conviction of manslaughter, the evidence showed that the deceased sought an interview with defendant, and showed no cause on the part of the defendant or purpose to bring on a quarrel, and an intent to bring on the occasion to kill deceased appeared to be entirely absent, there was no error in the court’s failure to submit a charge on provoking the difficulty. Following Reese v. State, 91 S. W. Rep., 583. 8. — Same—Misconduct of Jury — Statement of Facts. Where the statement of facts on motion for new trial, on account of misconduct of jury, was not filed during term time of the trial court, it can not be considered on appeal. Following Black v. State, 41 Texas Crim. Rep., 185. 3. — Same—Argument of Counsel — Practice on Appeal. The assignment with reference to the argument of counsel, relating to a matter that doubtless would not arise upon another trial, need not be considered.
81 Tex. Crim. 629Munoz v. State (1917)
The opinion states the case.
81 Tex. Crim. 630MacKey v. State (1917)
1. —Local Option — Indictment—Prior Election. Defendant’s contention t'hat because the election for local option was held, carried, etc., prior, to the time the Legislature made it an offense by the Act of 1909 to pursue the occupation, etc., of selling intoxicating liquors in prohibition territory, said latter law was inapplicable, can not be substained. Following Fitch v. State, 58 Texas Crim. Rep., 366, and other cases. 2. —Same—Indictment—Other Sales. Where the indictment alleged that defendant made other and different sales', in addition to those alleged, to persons to the grand jurors unknown, there was no error in overruling a motion to quash on this ground. 3. —Same—Indictment—Allegations. Upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, it is not necessary that the indictment allege that the sales made were unlawful. Following Ikard v. State, 46 Texas Crim. Rep., 605. 4. —Same—Indictment—Two Distinct Sales Must Be Alleged. Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquors in prohibition territory, the indictment failed to allege, two separate and distinct sales naming the partieg and the dates, and the allegation upon this phase of the pleadings was not sufficiently clear, the indictment was bad. Following Martin v. State, 72 Texas Crim. Rep., 454, and other cases. Prendergast, Judge, dissenting.
81 Tex. Crim. 632Ryan v. State (1917)
1. —Murder—Dismissal—Eight of Appeal. Where upon trial of murder, the district attorney filed a motion to dismiss the case, stating his reasons, to which opposition was filed by defendant, and the reasons assigned were assailed, and on hearing, the trial court entered a judgment dismissing the ease, to which defendant excepted and gave notice of appeal to this court, held, that this court can not entertain the appeal, and the ease must be dismissed. Following Venters v. State, 18 Texas Crim. App., 209, and other cases. 2. —Same—Statutes Construed — Eight of Appeal — Final Judgment. Construing articles 894 and 952, C. C. P., this court has limited its right to entertain appeals to eases that come within the terms of one of these provisions, and that there must be a final judgment of conviction to authorize this court to consider the ease on appeal. Following Cox v. State, 34 Texas Crim. Rep., 94, and other cases. 3. —Same—Rule Stated — Statute Construed — Final Judgment — Conviction- While the term “final judgment” is used in the statute, and in a sense a judgment dismissing the case is final, yet it is not a final judgment of conviction, and the term “final judgment” under the decisions and article 853, O. 0. P., is one in which there 'has been a trial settling the controversy against the defendant by his conviction. 4. —Same—Suggestions by the Court — Dismissal. While it is not to be doubted that a wrongful dismissal might be oppressive and that against such wrong the aggrieved party would have an appropriate remedy, yet this relief is not to be obtained by an appeal from the order of dismissal.
81 Tex. Crim. 635Bega v. State (1917)
1. —Burglary—Charge of Court — Requested Charges. Where, upon trial of burglary, the evidence did not raise the question that the door to the alleged building was not closed, there was no error in failing to charge thereon as requested. 2. —Same—Charge of Court — Circumstantial Evidence. Where, upon trial of burglary, the evidence showed that the defendant committed the offense with another, the requested charge on circumstantial evidence that it was necessary for the jury to conclude that the defendant alone burglarized the house, etc., was correctly refused. 3. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained a conviction under a proper charge of the court, there was no error.
81 Tex. Crim. 636Carrillo v. State (1917)
1. — Rape—Indictment—Grand Jury, Where the indictment alleged that the grand jury of Cameron County, Texas, upon their oaths present in the District Court thereof at the March term, A. D. 1917, while not very explicit was in sufficient compliance with the statute, although it should have been more carefully drawn. 3. — Same—Charge of Court — Statement of Facts. In the absence of a statement of facts, objections to the charge can not be considered on appeal. 3. — Same—Race Discrimination. Where the question of race discrimination was presented by affidavit, and it was not shown that any evidence was offered or received by the trial court, • the matter can not be reviewed on appeal.
81 Tex. Crim. 637Clay v. State (1917)
The opinion states the case.
81 Tex. Crim. 638Burrage v. State (1917)
The opinion states the case.
81 Tex. Crim. 639Cooper v. State (1917)
1, — Burglary—Continuance—Bill of Exceptions. In the absence of a bill of exceptions to the overruling of an application for a continuance, the matter can not be reviewed on appeal. S. — Same—Circumstantial Evidence — Sufficiency of the Evidence. Where, • upon trial of burglary, the circumstances in the case as contained in- the statement of facts are sufficient to support the conviction, there is no. reversible error.
81 Tex. Crim. 639Banks v. State (1917)
The opinion states the case.
81 Tex. Crim. 640Gustamente v. State (1917)
The opinion states the case.
81 Tex. Crim. 643Strickland v. State (1917)
1. — Theft of Hog — Insufficiency of the Evidence. Where, upon trial of theft of hogs, the evidence showed that the defendant publicly drove the hogs in question into a lot and killed some of them, and the alleged stolen hogs were not sufficiently identified, the conviction could not he sustained. Prendergast, Judge, dissenting. 3. — Same—Charge of Court — Venue. Where the court’s charge on the question of venue, on a trial of theft of hogs, was on the weight of the evidence, the same was reversible error. Following Williams v. State, 11 Texas Crim. App., 275. Prendergast, Judge, dissenting.
81 Tex. Crim. 646Ex Parte Jones (1917)
Appeal from the Hon. W. D. Howe, Judge, in vacation. Appeal from habeas corpus proceedings denying bail.
81 Tex. Crim. 647Terrell v. State (1917)
1. —Assault With Intent to Murder — Severance—Statutes Construed. Where, upon trial of assault with intent to murder, the orders of the court placing defendant upon trial deprived him of no right under article 726, C. O. P., and in the absence of an agreement, with himself and his codefendant as to the order of trial, and that the severance would have resulted in a continuance, there was no reversible error. Following Stouard v. State, 27 Texas Crim. App., 1, and other cases. 2. —Same—Change of Venue — Discretion of Court. Where, upon trial of assault with intent to murder, defendant sought a change of venue on the ground of prejudice and his application was controverted by the State, and overruled by the court after hearing tstimony, there was no reversible error in the absence of a showing of an abuse of discretion vested in the court. Following Joy v. State, 57 Texas Crim. Rep., 93, and other cases'. 3. —Same—Continuance—Practice in District Court — Codefendant. Where the defendant sought a continuance to secure the testimony of three witnesses to show the size, temper, etc., of the injured party, and still another witness who could not be secured on account of sickness, and it was shown by the qualification of the bill of exceptions that two or three of the witnesses were present at the trial by whom this fact could have been shown but were not put on the stand, and that the absent witness was a codefendant, there was no error in overruling the application. Following Blaine v. State, 34 Texas Crim. Rep., 448, and other cases. 4. —Same—Misconduct of Jury — Allusion to Defendant’s Failure to Testify — Punishment. Where, upon trial' of assault with intent to murder, defendant’s motion for new trial complained of the misconduct of the jury, because it received evidence in its retirement and some of the jurors alluded to the defendant’s failure to testify, and the facts on the motion showed that the jurors discussed the defendant’s age and there was testimony as to this fact, and there was only a casual reference to his failure to testify, there was no error in overruling the motion for new trial, and the matter of punishment was a fact for the jury in the absence of any showing that there was prejudice or passion which controlled the jury.
81 Tex. Crim. 651Haney v. State (1917)
The opinion states the case.
81 Tex. Crim. 653Faudoa v. State (1917)
The opinion states the case.
81 Tex. Crim. 654Parsons v. State (1917)
!• — Assault With Intent to Murder — Insanity—Charge of Court — Practice on Appeal. Under the present statute it is usually necessary to reserve an exception to supposed errors in the court’s charge, whether they be of commission or omission^ and in the absence of such exception, the court’s- failure to charge upon the issue of insanity is not reversible error. 3- — Same—Sufficiency of the Evidence. Upon trial of assault with intent to murder, where the evidence sustained the conviction under a proper charge of the court, there was no reversible error.
81 Tex. Crim. 654Ex Parte Finks (1917)
Habeas Corpus — Bail—Practice on Appeal. Where relator was denied bail by the district judge below, and appealed to this court he is granted bail, after a careful consideration of the testimony.
81 Tex. Crim. 655Ex Parte Marlin (1917)
The opinion states the case.
81 Tex. Crim. 656Young v. State (1917)
1. — Local Option — Statutes Construed — Different Offenses. Article 597, Penal Code, makes it an offense to sell intoxicating liquors in prohibited territory, and "article 589 makes it an offense to pursue the business of making such sales, and the two offenses are separate and distinct. Following Fitch v. State, 58 Texas Crim. Rep., 366, and other cases. 3. — Same—Insufficiency of the Evidence — Occupation Must Be Proved. Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, the indictment alleged two separate sales to two different parties on two different times, and only one sale was proved the conviction could not be sustained. Not only are at least two sales as alleged necessary to be proved but there must be additional evidence that the defendant was engaged in the business or occupation of making sales of intoxicating liquors in prohibition territory. Following Mizell v. State, 59 Texas Crim. Rep., 226, and other cases. 3. —Same—Rule Stated — Occupation—Offense Defined. The extent of the proof to authorize a conviction must show that defendant was engaged in the business as alleged, although this is not defined by law, and it need not. be his" principal business or occupation, but two or three isolated sales will not alone be sufficient to establish hisi guilt. Following "Whitehead v. State, 66 Texas Crim. Rep., 482, 147 S. W. Rep., 583, and other caseá. 4. —Same—Rule Stated — Statutes Construed. A reversal often becomes necessary where the evidence is sufficient to support a conviction under article 597, Penal Code, prohibiting the sale of intoxicating liquors, etc., but not sufficient to show the pursuit of the business under article 589, Penal Code, and where the prosecution is under the latter section, and this distinction should be observed by prosecuting officers.
81 Tex. Crim. 658Phillips v. State (1917)
Sunday Law — Moving Pictures — Companion Case. Where appellant was convicted of a violation of the Sunday law, under article 302, Penal Code, for exhibiting in a place of amusement a moving picture show on Sunday, and appealed, the case must he affirmed in accordance with a companion case, recently decided. Davidson, Presiding Judge, dissenting. [Pinal dissenting opinion October 33, 1917. — Beporter.]
81 Tex. Crim. 658Riggle v. State (1917)
The opinion states the case.
81 Tex. Crim. 659Cottar v. State (1917)
The opinion states the case.
81 Tex. Crim. 660Dillon v. State (1917)
The opinion states the case.
81 Tex. Crim. 661Cohen v. State (1917)
Tried below before the Hon. Jesse M. Brown. Appeal from a conviction of a violation of the Sunday law; penalty, a fine of twenty-five dollars.