83 Tex. Crim.

Volume 83 — Texas Criminal Reports

210 opinions

83 Tex. Crim. 1Mulkey v. State (1918)
1. —Quarantine—Live Stock Sanitary Commission—Information—Delegation of Power. The contention of defendant, upon trial for violating a quarantine order by the Live Stock Sanitary Commission, etc., that the information charged no offense, because it charges the violation of an order prescribed by the Live Stock Sanitary Commission and not an Act of the Legislature, and that the Legislature can not delegate, the lawmaking power to said Commission in violation of section 1, article 3, of the Constitution, is untenable. 2. —Same—Constitutional Law—Local Option Law—Legislative Power. Under article 16, section 23, of the Constitution of Texas, the Legislature can pass any law for the regulation of live stock and the protection of the stock raisers in any part of the State, affecting any given locality, and make it effective with or without submitting it to a vote. Following Ex parte Thompkins, 47 Texas Crim. Rep., 356, and other cases. 3. —Same—Statutes Construed—Live Stock Sanitary Commission—Quarantine. Under article 7312 et seq., Revised Civil Statutes, the Live Stock Sanitary Commission is created and its duties and powers prescribed and it is empowered to establish, maintain and enforce such quarantine lines and sanitary rules as it may deem to be necessary in any district, county or part of county within this State, promulgate rules, regulations, etc., and that it shall be unlawful thereafter to move any live stock from any quarantine district, county, or part of county or premises to any other district, etc., in any other manner except as prescribed by said Commission and proclaimed by the Governor. 4. —Same—Police Regulations—Domestic Animals—Contagious Disease. The authority of the Legislature to enact laws for the protection of domestic animals and to prevent the spread of infectious or contagious diseases among them is everywhere recognized as a valid exercise of the police power of the State, and under the commerce and police powers both the Federal and State governments may pass quarantine laws for the purpose of isolating diseased and suspected cattle. 5. —Same—Legislative ■ Power—Commissions—Delegation of Legislative Functions. It is within the power of the Legislature to confer upon officers or commissions authority to execute the law and to adopt all needful regulations to that end, and legislation of this character is not a delegation of legislative functions, and the State has the power to provide punishment for those who violate the law. 6. —Same—Information—Live Stock Sanitary Commission—Proclamation of Governor. Under these authorities, we think the authority given to the Texas Live Stock Sanitary Commission to quarantine live stock and to adopt rules and regulations to enforce the same, when properly proclaimed by the Governor, is not the exercise of legislative function by the Commission, and the rules and regulations properly s'o promulgated are valid and the violation thereof may be made an offense, which results that the indictment thereunder is valid. 7. —Same—Quarantine Law—Tick Eradication—Governor’s Proclamation—• Judicial Knowledge. It has been correctly held under said tick eradication and quarantine law that the court and jury had to take judicial knowledge of the Governor’s proclamation proclaiming said quarantine, and the rules and regulations adopted by said Live Stock Sanitary Commission, and that it is not necessary to prove them. Following McGee v. State, 81 Texas Crim. Rep., 210, 194 S. W. Rep., 951, and other cases. 8. —Same—Proclamation by Governor—Regulations of Commission. However this court, and no other, is bound to take judicial notice of any rules and regulations adopted by the said Commission, which have not been proclaimed by the Governor, and where such proclamation in no way proclaimed any rule or regulation which had been adopted by said Commission, the courts are not bound to take judicial notice thereof. 9. —Same—Case Stated—Proclamation by Governor—Rules and Regulations—Sanitary Commission—Charge of Court. Where the proclamation of the Governor did not proclaim or purport to proclaim that any or either of said rules and regulations had been adopted by said Live Stock Sanitary Commission, but without any regard to the Commission or any action by it simply stated that certain counties are thereby declared to be under special quarantine, etc., the same was insufficient and a charge of the court instructing the jury that said rules and regulations were in force and effect in said counties, etc., is reversible error.
83 Tex. Crim. 7Hunt v. State (1917)
1. —Burglary—Recognizance—Appeal Bond. Where appellant failed to enter into a recognizance but filed an appeal bond in vacation, which was not approved by the trial judge, the same was invalid, and confers no jurisdiction upon this court. However, this defect having been supplied, the appeal will be reinstated. 2. —Same—Argument of Counsel—Bill of Exceptions. In the absence of a bill of exceptions to objectionable argument by State’s ' counsel, the same can not be considered on- appeal, where this objection simply appeared in the motion for a new trial. S.—Same—Sufficiency of the Evidence. Where, upon trial of burglary and an appeal therefrom, the evidence in the record sustained the conviction, there was no reversible error.
83 Tex. Crim. 8Cirul v. State (1918)
Tried below before the Hon. C. W. Eobinson. Appeal from a conviction of aggravated assault; penalty, fine of five: hundred dollars, and two years confinement in the county jail. The opinion states the case.
83 Tex. Crim. 12Ex Parte Jones (1918)
1.—Habeas Corpus—Bail. Where, upon appeal from a babeas corpus proceeding denying bail, the evidence sustained the judgment below there is no error. 8.—Same—Second Application—Pleading—Buie Stated. Where relator contended that the indictment for robbery is based upon the same fact as the indictment for murder, for which he had been granted bail, but there was no pleading in the court below touching this contention, and relator endeavored to supply this defect by second application for habeas corpus, the same can not be considered. Following Johnson v. State, 26 Texas Crim. App., 631, and other cases. 3. —Same—Same Offense—Practice—Volition—Identity of Act. If the two indictments embraced but one criminal act, the court might judicially take cognizance thereof and dispense with special pleadings, but the fact that the injuries were both inflicted in one criminal transaction is not sufficient, and the volition must be identical. Murder and robbery are made by statute separate offenses, and the courts have generally refused to make inquiry and determine the identity of the act in a habeas corpus proceeding. Following Ex parte Crofford, 39 Texas Crim. Rep., 547, and other cases. 4. —Same—Buie Stated—Dismissal—Indictment. This rule does not obtain in a case where the subsequent indictment is for the identical offense upon which a previously dismissed indictment was found, and where there is no controversy as to the identity of the act, and bail can not be denied in the same case where the original indictment was dismissed and a new one found; following Ex parte Augustine, 33 Texas Crim. Rep., 1, and other cases; or after acquittal in one county to try him on the same charge in another. Following Ex parte Davis, 48 Texas Crim. Rep., 644. 5. —Same—Season of the Buie—Identity of Criminal Act. The reason of the rule not to determine the identity of the criminal act in a habeas corpus proceeding is that the decision of the question of identity often depends on controverted facts, and is a character of inquiry adapted to the solution by the jury. Following Augustine v. State, 41 Texas Crim. Rep., 59, and other cases. 6. —Same—Case Stated—Former Jeopardy—Murder—Ro’b'bery. The question as to Whether relator robbed and killed deceased and acted on one volition or two, and the circumstances proved as bearing upon the identity of the transaction are questions of fact to be passed on under a plea of former jeopardy or former acquittal, but can not be" determined in a habeas corpus proceeding. 7. —Same—Identity of Transaction—Res Adjudicata, When. Wlu-re defendant was denied bail in a case of robbery with deadly weapons, and contended that he had been indicted also for murder • for the same transaction and had been bailed, and that therefore he should be bailed in the instant case, this court, if it is required to compare the evidence and determine the issue as to identity, would hold that the transactions were not identical in the sense that the judgment granting bail in the murder case would be res adjudicata of his claim for bail in the robbery ease.
83 Tex. Crim. 16Phillips v. State (1918)
The opinion states the case.
83 Tex. Crim. 18Thompson v. State (1918)
The opinion states the case.
83 Tex. Crim. 19Kahanek v. State (1918)
The opinion states the case.
83 Tex. Crim. 21Stevenson v. State (1918)
The opinion states the case.
83 Tex. Crim. 22Covington v. State (1918)
The opinion states the case.
83 Tex. Crim. 26Williams v. State (1918)
The opinion states the case.
83 Tex. Crim. 31White v. State (1918)
Theft from Person—Indictment—Pleading. Where, upon trial of theft from the person, the indictment alleged that the-defendant did then and there, etc., privately take from the possession of the person of S. W., etc., instead of a direct allegation that the property was taken from the person of S. W., the same was insufficient under article 1351, P. C. Prendergast, Judge, dissenting. ’
83 Tex. Crim. 33Johnson v. State (1918)
The opinion states the case.
83 Tex. Crim. 33Holloway v. State (1918)
Keeping Disorderly House—Indictment—Grand Jury—Persons in Grand Jury Boom. Where the record showed that during the deliberations of the grand jury touching the indictment against the defendant, that unauthorized persons were with the grand jury, the motion to quash should have been sustained under the evidence adduced. Following Stuart v. State, 35 Texas Crim. Rep., 440, and other cases.
83 Tex. Crim. 35McGregor v. State (1918)
The opinion states the case.
83 Tex. Crim. 39O'Brien v. State (1918)
The opinion states the case.
83 Tex. Crim. 41Earnest v. State (1918)
The opinion states the case.
83 Tex. Crim. 44Austin v. State (1918)
The opinion states the case.
83 Tex. Crim. 45Austin v. State (1918)
The opinion states the case.
83 Tex. Crim. 46Nobles v. State (1918)
The opinion states the case.
83 Tex. Crim. 48Stubblefield v. State (1918)
•Fornication—Insufficiency of the Evidence. Where, upon trial of fornication as defined in article 494, P. C., there was Ho proof to show that the parties were both unmarried, the conviction could not. be sustained. Following Wells v. State, 9 Texas Crim. App., 160, and other cases.
83 Tex. Crim. 49Johnson v. State (1918)
1. —Vagrancy—Information—Complaint. Where neither the complaint nor the information for vagrancy alleged that prohibition was in force or ever had been in the county of prosecution, where the soliciting for orders for intoxicating liquors was alleged to have been done, the same were insufficient under article 635, P. C. 2. —Same—Charge of Court—Vagrancy. Even if the information had been sufficient, the court’s charge especially authorizing defendant’s conviction for unlawfully soliciting orders for intoxicating liquor without any evidence that prohibition was in force, was reversible ' error. 3. —Same—Burden of Proof—Charge of Court. Where the charge of the court to the effect that if the jury believed the defendant is not guilty under either count of t'he indictment, the same was objectionable and placed the burden of proof upon the defendant. 4. —Same—Evidence—Moral Turpitude. • Where the defendant’s bill of exceptions objecting to testimony that he had before been convicted for bootlegging did not show whether this was a misdemeanor or a felony, there was no reversible error.
83 Tex. Crim. 50Stephens v. State (1918)
The opinion states the case. The court permitted Ora Hart to testify for the State over the objection of the defendant, and his testimony was as follows: “The negro, Sherman Stephens, testified before the grand jury as follows: ‘Said he got up there at Tom Frizzell’s, he got up there at the house. It seems he saw a squirrel up the road before he got to the house.
83 Tex. Crim. 54Chumley v. State (1918)
The opinion states the case.
83 Tex. Crim. 55Ex Parte Jackson (1918)
1.—Theft of Automobile—Misdemeanor—Felony—Habeas Corpus. The Act of April 2, 1913, having- been amended, now making the theft of an automobile of or over the value of $50 a felony, the contention of appellant that it is a misdemeanor is untenable. Besides, if he 'had been guilty only of a misdemeanor theft his remedy would have been by appeal and not by habeas corpus proceeding. Following Ex parte Jones, recently decided. 3.-—Same—Caption—Constitutional Law. The Act of 1915 and the caption thereof meets the requirements of section 36, article 3, of the Constitution, and is valid.
83 Tex. Crim. 57Red v. State (1918)
The opinion states the case.
83 Tex. Crim. 57Clayton v. State (1918)
The opinion states the case.
83 Tex. Crim. 61Johnson v. State (1917)
The opinion states the case.
83 Tex. Crim. 64Johnson v. State (1918)
The opinion states the case.
83 Tex. Crim. 67Denton v. State (1918)
The opinion states the case.
83 Tex. Crim. 68Green v. State (1918)
1. —Adultery—Evidence—Husband and Wife—Withdrawal of Argument. Where, upon trial of adultery, the State caused to be sworn and placed on the witness stand defendant’s wife, and after asking some general questions as to where they had been living, etc., without objection on defendant’s part, the county attorney addressed the court in the hearing of the jury, saying that the State could not use her as a witness if the defendant objected, and that he tendered her to the defendant as a witness for both sides, etc., to all of which the defendant objected. This was also alluded to in argument of State’s counsel to the jury. Held, that this is reversible error, although the court by a charge withdrew these matters. Following Eads v. State, 74 Texas Crim. Rep., 628. Prendergast, Judge, dissenting. 2. —Same—Argument of Counsel—Hule Stated. Attorneys in discussing the evidence should he careful and remain within the record, and should not use inflammatory language. 3. —Same—Circumstantial Evidence—Charge of Court. While it would have been proper to have given the requested charge on cireumstantial evidence, yet the court’s charge and that refused were practically the same, and there is no error. 4. —Same—Evidence—Letter. Upon trial of adultery there was no error in- admitting in evidence a certain letter by appellant to his daughter, who was with appellant’s wife, etc., and which could not have been harmful under any event. 5. —Same—Evidence—Circumstances. - Upon trial of adultery there was no error in admitting in evidence circumstances which compromised the defendant in his relations to t'he alleged adulteress. Following Roller v. State, 43 Texas Crim. Rep., 433.
83 Tex. Crim. 72Adler v. State (1918)
The opinion states the case.
83 Tex. Crim. 74Cordill v. State (1918)
1.—Adultery—Habitual Carnal Intercourse—Rule Stated. Proof of an occasional act of carnal intercourse is not sufficient to show habitual carnal intercourse; that is, where the State relies alone upon proof of specific instances of a limited number of acts of this character, and where the evidence excludes the idea that there were other acts, and where there are no attending circumstances upon which to found an inference that the intercourse was habitual 2.—Same—Case Stated—Insufficiency of the Evidence. Where, upon trial of adultery, there was corroborative evidence of three instances of carnal intercourse between defendant and his paramour, and there was no contention that there were other acts which were so corroborated or other relationship than that which was testified to by the accomplice, the evidence was not sufficient to sustain a verdict for adultery by habitual carnal intercourse. Following Hilton v. State, 41 Texas Crim. Rep., 190, and other cases.
83 Tex. Crim. 76Fox v. State (1918)
Manslaughter—Sufficiency of the Evidence—Self-defense. Where, upon trial of murder and conviction of manslaughter, the court’s charge was full in submitting every issue in defendant’s favor, and the evidence being sufficient to sustain t'he conviction, there is no reversible error.
83 Tex. Crim. 77Parker v. State (1918)
The opinion states the case.
83 Tex. Crim. 80Avery v. State (1918)
-Affidavit—Motion for New Trial—Practice on Appeal—Insanity. In the absence of bills of exception and statement of facts an affidavit -alleging defendant’s insanity can not be considered by this court. Besides, appellant has his remedy in the trial court.
83 Tex. Crim. 81Parker v. State (1917)
1 Pandering—Bills of Exception—Rehearing. Where the bills of exception were filed after the time for filing had expired, they will be stricken out on motion by the State. However, the record being corrected in connection with the motion for rehearing, the cause will be considered on its merits. 2. —Same—Sufficiency of the Evidence—Promise to Encourage Inmate of House of Prostitution. Where, upon trial of encouraging an inmate of a house of prostitution to remain therein as such inmate, the evidence sustained the conviction under article 506a, P. C., there was no reversible error. 3. —Same—Evidence—Acts of Defendant. Where, upon trial of pandering, the evidence showed that defendant whipped the female who was in the house of prostitution for not staying there, etc., there was no error in admitting testimony that she gave money to the defendant, because he was sore and cursed her out for not doing so. 4. —Same—Evidence—Acts of Defendant—Making Bond—Promise. Where, upon trial of pandering, the evidence showed that the defendant’s promise to the female was that he would make bail for her whenever she was arrested, etc., there was no error in admitting testimony that the defendant promised her to make bond for her when she was arrested as an inducement to her to continue to ply her vocation, and this did not contravene any constitutional right of defendant. 5. —Same—Evidence—Act of Defendant. Upon trial of pandering there was no error to admit testimony to show relation of defendant with the prostitute, such as delivery by her to him of money she made by prostitution, and the fact that he whipped her because she would not stay in the house of prostitution, etc. 8.—Same—Evidence—Acts of Defendant. Upon trial of pandering there was no error in admitting testimony that defendant made inquiry of officers who were watching the house of prostitution in which said prostitute remained as inmate, and that he was in said house with her, etc., and whipped her for not remaining there. 7. —Same—Evidence—Other Offenses—Bes Gestae. Upon trial of pandering there was no error in admitting testimony that defendant had struck the inmate of the house of prostitution because she did not get enough money for him and remain in a certain house, and there was nothing in the contention that this did not support the allegations of the indictment, as there was no particular house named in the indictment during the relation of defendant with said female inmate in a house of prostitution, as all this was part of the res gestae. 8. —Same—Bequested Charges. Where the requested charges were embraced in the court’s main charge, there was no error in refusing them. 9. —Same—Contradictory Testimony. The fact that the female inmate in a house of prostitution, kept there by the defendant, made some contradictory statements, is not available to sustain defendant’s contention that her evidence was thereby destroyed as a matter of law.
83 Tex. Crim. 86Coleman v. State (1918)
Burglary—Charge of Court—Sufficiency of the Evidence. Where the objections to the court’s charge were not fundamental in their character, and the evidence was sufficient to sustain the conviction thereunder, there was no reversible error.
83 Tex. Crim. 87Carpenter v. State (1918)
1.—Murder—Statement of Facts—Bills of Exception—Filing—Ninety Days Limit. The power of the trial court to extend the time in which bills of exception and statement of facts may be filed is controlled by article 845, C. 0. P., and the limit to which the extension may be made is a total of ninety days after adjournment. Following Roberts v. State, 62 Texas Crim. Rep., 7. Z.—Same—Diligence—Buie Stated. When the appellant is diligent in his efforts to secure a statement of facts and bills of exception and to cause them to he filed in the time required by law, be will not be made to suffer the consequences of the faults of others, but he must use the proper diligence. Following George v. State, 25 Texas Crim. App., 229, and other cases. 8.—Same—Rule Stated—Filing After Time Extended—Laches—Practice on Appeal. The exception to the rule requiring the disregard of bills of exception and statement of facts filed after the time permitted by law is predicated upon the showing to this court of t'he absence of laches on the part of the appellant. And the privilege of this court to consider a bill of exceptions or statement x)f facts filed after the time is not to be arbitrarily exercised. Following Riojas v. State, 36 Texas Crim. Rep., 182, and other cases. 4.—Same—Case Stated—Precedent—Practice on Appeal. Where, upon an appeal from a conviction of murder, the State filed a motion to strike out the statement of facts and bills of exception because they had not been filed in time to be considered, and the record showed that, without violence to the practice long adhered to and often declared, this court can' not consider these documents, the motion of the State must be sustained and the judgment of the lower court affirmed.
83 Tex. Crim. 90Hamilton v. State (1918)
1.—Murder—Change of Venue—Practice on Appeal. This court has no authority to review the action of the trial judge in refusing a change of venue, where the evidence beard on the application for such change of venue was not verified and filed during the term at which the case was tried. Following Bowden v. State, 12 Texas Crim. App., 246, and other cases. 3.—Same—Evidence—Clothes of Deceased—Harmless Error. Where, upon trial of murder, the evidence showed that the brother of defendant had been forbidden to enter the house of deceased, hut he did so anyhow and struck at deceased’s feet with a pocket knife while the latter was holding a lantern in his hand, and it was a controverted issue as to whether deceased struck at his assailant with a lantern or otherwise; defendant claiming that he defended his brother in killing the deceased, and the State introduced in evidence the shoes worn by deceased at the time 'he was killed, hut the record did not make it clear as to the condition of said shoes, that is, whether they had cut-marks or not, the error, if any, was harmless. 3. —Same—Argument of Counsel—Requested Charge—Bill of Exceptions. In the absence of a requested charge, the remark of State’s counsel that the ‘ defendant drove his knife into the heart of deceased without provocation; the evidence showing that the deceased was stabbed in the breast, and that he died in a very few minutes after the wound was inflicted, there was no reversible error. Besides, the hill of exceptions was defective in not showing that the objection was verified. Following Smith v. State, 4 Texas Crim. App., 626, and other cases. 4. —Same—jury and Jury Law—Misconduct of Jury—Acts of Third Parties. Where, upon an appeal from a conviction of murder, the record showed that an old man inadvertently got among the jurors, and upon learning that he was out of place excused himself and left, the conclusion of the trial judge that there was no injurious conversation by members of the jury with an outsider was sustained. Following Fox v. State, 53 Texas Crim. Rep., 284. 5.—Same—Jury and Jury Daw—Misconduct of Jury. Where it appeared from the record on appeal that the sheriff took the jury, while it was forming, to a meal at a place where there were a number of other people dining, to a separate table, and that there was no mingling or eommunication with them, that the sheriff was present with them, and that there was an absence of injury shown, there was no reversible error. Following Parshall v. State, 62 Texas Crim. Rep., 177, and other cases. 6.—Same—Transcript—Practice on Appeal—Invited Argument. Although the transcript was not filed in time, following Black v. State, 41 Texas Crim. Rep., 185, the court has nevertheless examined the same and finds that' the hill of exceptions complaining of the argument of State’s counsel as qualified by the trial judge showed that the argument was invited, there was no reversible error. Following Smith v. State, 21 Texas Crim. App., 277, and other cases. 7.—Same—Evidence—Bill of Exceptions. As presented in the hill of exceptions, the fact that the State’s attorney asked a witness if he did not wink at the defendant while testifying at the examining trial, does not show reversible error. 8.—Same—Evidence—Pocketknife—Deadly Weapon. Where, upon trial of murder, it made it incumbent upon the State to introduce in evidence the pocketknife with which the stab was made, and that the use of it showed that the defendant intended to slay the deceased, was a deadly weapon although it was not such per se, there was no reversible error. 9.—Same—Evidence—Threat not too Remote. Upon trial of murder there was no error in permitting a witness to testify that about two years before the homicide, the deceased and defendant were at a dance, and that a quarrel occurred between them and that defendant said if he ever lived to get grown he would kill the deceased, and this was objected to on the ground alone that it was too remote. 10.—Same—Threats—Rule Stated—Remoteness Does not Exclude. The relevancy of threats as evidence against the accused is not affected by the fact that they were near or remote to the homicide in question, as this is a circumstance to he considered by the jury as to whether there was connection between the threat and the homicide. Following Leech v. State, 63 Texas Crim. Rep., 339. 11.—Same—Threats—Evidence—Reconciliation—lapse of Time. In view of the fact that the authorities are practically in accord upon the proposition that threats are not to be excluded because of a lapse of time alone, and the fact that reconciliation is not made clear in the records, and the fact that the objection made in the instant case is confined to the remoteness of the threats, this court is constrained to overrule the objection thereto, and there was no reversible error. Following Powdrill v. State, 69 Texas Crim. Rep., 340, and other cases. 12.—Same—Murder—Charge of Court. While much of the evidence in the instant ease tends to show manslaughter, there is evidence also that the homicide was unprovoked, and that ■ the same supported the theory of murder. There was no reversible error, therefore, in submitting the law of murder to the jury.
83 Tex. Crim. 97Burnett v. State (1918)
The opinion states the case.
83 Tex. Crim. 102Lacey v. State (1918)
1.—Keeping Disorderly House—Sufficiency of the Evidence. Where, upon trial of keeping a disorderly house, the evidence was sufficient to support the conviction, there was no reversible error. Distinguishing Bowman v. State, 73 Texas Crim. Rep., 194. 8.—Same—Charge of Court—Requested Charge. Where, upon trial of knowingly keeping a disorderly house, the evidence raised the issue that the defendant knowingly kept or was concerned in keeping said disorderly house, the court correctly submitted this issue to the jury, and refused a requested charge asking a peremptory acquittal.
83 Tex. Crim. 103Batts v. State (1918)
Receiving Stolen Property—Sufficiency of the Evidence—Return of Stolen Property. Where, upon trial of receiving stolen property, the evidence sustained the conviction there was no error, and the question of the voluntary return of the property under the facts was not in the case, as defendant was convicted of receiving stolen property and not of theft thereof.
83 Tex. Crim. 104Chenault v. State (1918)
The opinion states the case.
83 Tex. Crim. 106Jackson v. State (1918)
The opinion states the case.
83 Tex. Crim. 107Harris v. State (1918)
The opinion states the case.
83 Tex. Crim. 110Sanders v. State (1917)
The opinion states the case.
83 Tex. Crim. 113Wool v. State (1918)
83 Tex. Crim. 121Wool v. State (1918)
1.—Receiving Stolen Property—Other Offenses—Co-conspirator—Evidence. Where, upon trial of receiving stolen property, the evidence showed that the stolen property taken from several houses burglarized about the same time was received by the defendant and that the State relied upon circumstantial evidence to show criminal intent, there was no error in admitting testimony with reference to other burglaries than the one upon which the proseeutilon was based. Tlie same, however, should have been limited and not extended to transactions in which the possession of the stolen property by the State’s witness connected him alone with the particular collateral crime, and 'his statements after the termination of his connection with defendant were not admissible. Prendergast, Judge, dissenting. 2.—Same—Evidence—Knowledge—Guilty Intent. Where, upon trial of receiving stolen property, the evidence raised the issue whether defendant knew at the time of receiving the alleged stolen property that it was stolen, a charge on that subject should have been submitted. Prendergast, Judge, dissenting.
83 Tex. Crim. 127Sheely v. State (1918)
The opinion states the case.
83 Tex. Crim. 130Anderson v. State (1918)
Scire Facias—Bail Bond—Offense. Where, upon an appeal from a final judgment against the appellant as a surety on a bail bond, the alleged bond recited the offense to be violating the local option law, the same was fatally defective, as there is no such offense eo nomine described by law, and no valid judgment can be entered upon such bond; therefore, the judgment must be reversed and the cause remanded.
83 Tex. Crim. 131Watson v. State (1918)
1. —Murder—Continuance—Want of Diligence. Where the application for continuance showed a want of diligence in not showing why process was not issued at an earlier date, there was no error in overruling the motion. 2. —Same—Sufficiency of the Evidence—Manslaughter. Where, upon trial of murder and a conviction of manslaughter, the evidence supported tile conviction, although the testimony was conflicting, there was no reversible error. 3. —Same—Special Judge—Practice in District Court. Where, in the absence of the regular judge, the members of the bar selected a special judge, who presided over the court during the term and tried the defendant, and it was shown in the motion for new trial that after the selection of said special judge, the regular judge became a captain in the National Guard, held, that the special judge was authorized to try defendant’s case and finish the work of that' particular term. Following Lowe v. State, recently decided.
83 Tex. Crim. 133Phillips v. State (1918)
The opinion states the case.
83 Tex. Crim. 134Lowe v. State (1918)
1. —Murder—Special Judge—Statutes Construed—De Facto—De Jure Officer. Where it appeared from the record on appeal that on a date following the election of the. special judge, in the absence of the regular judge, the latter vacated his office by accepting an appointment in the Federal government as an officer in the military service, there wag no reversible error for the special judge to proceed with the business of the court, under article 1678, Vernon’s Texas Civil Statutes, as authorizeed by section 7 under article 5 of the Constitution. Besides, such judge was a de facto officer, if not a judge de jure. Following Greer v. State, 65 S. W. Rep., 1075, and other cases. 2. —Same—Evidence—Declarations of Defendant—Motive. Upon trial of murder there was no error in admitting testimony as to the declarations of the defendant some time before the homicide with reference to denying the accusation of stealing chickens, etc., over which the difficulty arose. Following Waters v. State, 54 Texas Crim. Rep., 322. 3. —Same—Evidence—Declarations of Third Party—Res Gestae. Upon trial of murder there was no error in admitting in evidence the declarations of a witness, who was coming from the scene of the difficulty, to the effect that they were killing Ms boy, this occurring at the time of the difficulty and within a short distance of the place of its occurrence, and was therefore a part of the res gestae. Following Fleming v. State, 54 Texas Crim. Rep., 339, and other cases. 4. '—Same—Continuance—Want of Diligence. Where the application for continuance showed upon its face a want of diligence to procure process for the absent witness to secure his attendance, there was no error in overruling the motion. Following Hunter v. State, 59 Texas Crim. Rep., 439, and other cases. 5.—Same—Charge of Court—Practice on Appeal. Where the failure to give a requested charge touching the specific intent of the defendant was an omission which, in the absence of proper exceptions can not be reviewed by this court, there was no reversible error. Following Crossett v. State, 74 Texas Crim. Rep., 440, and other cases.
83 Tex. Crim. 139Roberts v. State (1918)
The opinion states the case.
83 Tex. Crim. 146Ex Parte Hill (1918)
The opinion states the case.
83 Tex. Crim. 148Pruitt v. State (1918)
1.—Swindling—Statutes Construed—Buies of Banking—Check. Under articles 1421 and 1422, P. C., it is necessary in order to convict the accused, for the State to prove that, at the time the check in question was drawn, defendant not only had no funds at the bank alleged and on which it was drawn, but that he had at that time no good reason to believe that the -check would be paid, and the burden is upon the State, and in the instant -case where this requirement of the statute was not met by the State, the -conviction-could not be sustained. Following Moore v. State, 20 Texas Crim. App., 233. .2.—Same—Indictment—Name of Injured Person—Motion for New Trial— Buie Stated. While this court is of the opinion that the correct rule is, where an owner or person who is injured is a corporation that a compliance with the law requires, in a prosecution for swindling, that the name of the person to whom the false representation is made be set out in the indictment if the name of such person is 'known, etc., yet, the defect in the indictment of not alleging such name can not be raised after verdict. S.—Same—Insufficiency of the Evidence. Where, upon trial of swindling, under articles 1421 and 1422, P. O., the evidence was insufficient to sustain the conviction, the judgment is reversed and the cause remanded.
83 Tex. Crim. 151Coprew v. State (1918)
Burglary—Continuance—Principal—Evidence. Where defendant’s 'application for continuance was on the ground of the absence of his co-principal and that he could prove by him that the latter committed the burglary, but t'he .facts showed that the two were acting together as principals, it would not relieve the defendant, and there was no error in overruling the motion for continuance; besides, the diligence was hardly sufficient.
83 Tex. Crim. 152Ex Parte Rogers (1918)
The opinion states the case.
83 Tex. Crim. 153Morse v. State (1918)
The opinion states the case.
83 Tex. Crim. 154Cannon v. State (1918)
1. —Murder—Poisoning—Convict—Impeaching Own Witness—Hearsay. Where, upon trial of murder by poisoning, the State introduced a convict as a witness who failed to give any testimony either favorable or derogatory to tire State, it should not have been allowed over the objection of the defendant to require said witness to identify the written statement which said witness had sworn to in the penitentiary, and to testify as to its contents and that he made it in the absence of defendant, etc.; the witness 'swearing on cross-examination that he signed said statement to secure his release and that it was not true. This evidence was hearsay. 2. —Same—Rule Stated—Impeaching Own Witness—Surprise. The rule of law which would permit testimony of this character to be introduced would be occasioned by circumstances authorizing the party introducing the witness to impeach him by showing he made contradictory statements, and this can only be done when the witness gives testimony which is actually prejudicial to the case of the party offering him, and when said party is surprised by his adverse testimony. Following Skeen v. State, 51 Texas Crim. Rep., 39, and other eases. 3. —Same—Evidence—Co-conspirators. Statements of a co-conspirator prior to the time the offense was committed are admissible in evidence. 4. —Same—Evidence—Conspiracy—Subsequent Declarations. Alleged conversations with a co-conspirator subsequent to the commission of the offense are not admissible in evidence, unless they come under the exceptions to the rule which admits them as res gestae, or while the co-conspirator was in possession of the proof of the crime. Following Draper v. State, 22 Texas, 401, and other cases. 5. —Same—Charge of Court—Name of Person Injured. Where the indictment charged murder by poison with intent to kill a person named therein and also some persons to the grand jury unknown, a charge of the court which authorized the conviction if the evidence proved an intent to injure or kill said party named, or any other person, instead of one unknown to the grand jury, the same was reversible error. Following Brewer v. State, 18 Texas Crim. App., 456.
83 Tex. Crim. 157Griffin v. State (1917)
1. —Incest—Bills of Exception—Practice on Appeal. Where the hills of exception were too indefinite, they can not be considered on appeal. 2. —Same—Sufficiency of the Evidence. Where, upon trial of incest, the evidence was sufficient to sustain the conviction, there was no reversible error on that ground. 3. —Same—Charge of Court—Indictment—Half-lSTiece. Where the indictment charged incest between the defendant and his niece and the evidence showed that she was the daughter of his half-sister, making her only his half-niece instead of full blood, the court should have adhered to the statute and submitted to the jury the relation of lialf-uncle and half-niece, and a failure to do so was reversible error.
83 Tex. Crim. 159Lewis v. State (1918)
1. —Murder—Continuance—Bill of Exceptions. In the absence of a bill of exceptions, the action of the court in overruling an application for a continuance can not be considered on appeal. 2. —Same—Evidence—Confession—Bill of Exceptions—Argument of Counsel. Where the alleged confessions are not properly reserved in a bill of exceptions together with the objections thereto, the court must presume that the samet were properly admitted in evidence, and reference by State’s counsel to them in his remarks to the jury is not reversible error under the record.
83 Tex. Crim. 160Dodd v. State (1918)
The opinion states the case.
83 Tex. Crim. 169Patterson v. State (1918)
1.—Murder—Disqualification of Trial Judge—Statutes Construed—Constitutional Law—Change of Venue. Where the trial judge had been county attorney when the indictment charging appellant with murder was found, he was 'disqualified from sitting in the case and entering an order for a change of venue under article 5, section" 11 of the Constitution, and article 617, C. C. P., and this, although such indictment was dismissed and a new one found upon which the venue was changed. Following Graham v. State, 43 Texas Crim. Rep., 110, and other cases. Distinguishing Cock v. State, 8 Texas Crim. App., 659. 2. —Same—Change of Venue—Judicial Act. An order changing the venue of a case is a judicial act and can not be made by a judge who is disqualified by having been of counsel for the State. Following Abrams v. State, 31 Texas Crim. Rep., 449, and other cases. 3. —Same—Change of Venue—Statutes Construed. Under the present statute, article 618, C. C. E., no change of venue shall be necessary where the judge is disqualified -from trying the same, and, where said judge nevertheless made such order, the same is void. ■4.—Same—Ministerial and Judicial Discretion—Rule Stated. There is a distinction between ministerial acts or acts not involving judicial discretion, which may be done by a disqualified judge; but where the act involves judicial discretion, he can not perform it, and if he does, the act is void. Following Rains v. Simpson, 50 Texas, 495, and other cases. S.—Same—General Reputation of Deceased—Cross-examination. Where, upon trial af murder, the State’s witness testified to his knowledge of the good reputation of deceased, and there being evidence upon which to base the inquiry, defendant had the right on cross-examination of the witness to inquire whether or not he had heard that deceased had killed a man and cut another, etc., for the purpose of testing his knowledge and credibility. Following Forrester v. State, 38 Texas Crim. Rep., 245.
83 Tex. Crim. 174Lozano v. State (1918)
1. —Murder—Evidence—Acts of Third Parties. Upon trial .of murder it was error to admit testimony with reference to the movements and actions of deceased and his companions prior to their reaching the scene of a prior difficulty, which had no immediate connection with the homicide, and could not affect the defendant. 2. —Same—Evidence—Prior Difficulty—Details—Charge of Court—Motive. Upon trial of murder it was reversible error to admit in evidence the details of a fight occurring between other parties with which defendant was not connected, except that there was some reference made to the fight before the homicide, and while enough of the fight was admissible to explain this reference the details thereof should not have been admitted in evidence. This was especially so in connection with the court’s charge limiting this testimony to motive for the killing on part of the defendant. 3. —Same—Charge of Court—Weight of Evidence. Where, upon trial of murder, testimony was admitted for the purpose of impeaching defendant’s witness, the court’s charge which practically instructed the jury that it did so impeach said witness was upon the weight of the evidence. 4. —Same—Evidence—Weapon Used—Charge of Court. Where, upon trial of murder, the evidence showed that defendant had been attaclceddby deceased and his three companions and had been knocked down by rocks, his left hand broken and his right hand cut, the court should have submitted a charge that if the weapon used in the assault upon defendant was such as to produce a reasonable apprehension of death or serious bodily injury, they should regard such an attack as being made for that purpose, under article 1106, P. C. 5. —Same—Intent to Kill—Charge of Court—Aggravated Assault—Deadly Weapon. » Where, upon trial of murder, the evidence raised the issue of aggravated assault, showing that the deceased and his companions made a vigorous assault upon defendant inflicting pain, - etc., and that an intent to kill on part of the defendant was absent, the court should have submitted a requested charge on this phase of the case on the question of adequate cause and aggravated assault, especially where the instrument uséd by the defendant was a. poeketknife which was not per se a deadly weapon. 6. —Same—Evidence—Defendant as a Witness—Intent to Kill. Where, upon trial of murder, the defendant claimed that he did not intend' to kill, but acted in self-defense, etc., the court should have permitted him to-testify to these facts in his own behalf. 7. —Same—Evidence—Contradicting Witness—Arrest—Confessions. In order to use statements of a party under arrest, even for impeachment-purposes, he must be warned according to the statute, and that statement must be in writing in conformity thereto, and where this was not the case, it was error to admit the same in evidence. , 8. —Same—Practice on Appeal. Matters which will not occur on another trial, such as the argument of counsel, application for continuance, etc., need not be considered on appeal.
83 Tex. Crim. 181Alvarado v. State (1918)
1.—Theft of Horse—Indictment—Constitutional Law. Where, upon trial of theft, it was discovered after conviction that the indictment did not begin in the name and by the authority, etc., as provided by the Constitution, the trial court should have heard the amended motion for new trial which set up the fact that the words “by the” were inserted in said indictment after it was returned and presented in court and if the allegations were found to be true, as contended by the defendant, the indictment should have been quashed. B.—Same—Amended Motion for New Trial—Buie Stated—Discretion of Court. The general rule is that an amended motion for new trial is within the sound discretion of the trial court, but where the same shows serious substantial error, the same is reversible by this court. 8.—Same—Constitutional Law—Indictment. All indictments for felony must begin in the name and by the authority, etc., and this provision of the Constitution is mandatory and must be complied with or the indictment is bad. Following Moss v. State, 60 Texas Crim. Rep., 268, and other cases. 4.—Same—Technicalities—Pleading—Constitutional Law. The mandates of the Constitution that all indictments shall begin “in the name and by the authority of the State” and conclude “against the peace and. dignity of the State” are not technicalities, but the expressed will of a sovereign people ordaining a constitutional form of government based upon a representative democracy, and these mandates must be obeyed implicitly by the courts and all created power under it.
83 Tex. Crim. 184Vestal v. State (1918)
1, —Murder—Death Penalty—Sufficiency of the Evidence. Where, upon trial of murder assessing the death penalty, the evidence was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Bills of Exception—Filing—-Practice on Appeal. Where the bills of exception are filed long after the time the court had allowed for filing them, they will be struck out on motion of the State; however, if considered, there was no reversible error. 3. —Same—Evidence—Fruits of Crime. Upon trial of murder, where the evidence showed that the murder was committed in the act of robbery, and that defendant had pawned a certain watch worn by deceased, there was no error in admitting testimony by the jeweler to whom the defendant had pawned the same; besides, the defendant had admitted this fact, and there was no reversible error. Besides, the bills of exception had not been filed in time. 4. —Same—Evidence—Identification of Stolen Goods. Where, upon trial of murder, the State’s testimony showed that the same was committed in the act of robbery, there was no error in admitting testimony by the wife of the deceased that the watch which the defendant had pawned belonged to her husband. Besides, said bills of exception were filed too late. Following Harris v. State, 62 Texas Crim. Rep., 235. 5. —Same—Witnesses Under Buie—Practice in District Court. Where, upon trial of murder, the sheriff had been excused from the rule by both parties, but defendant thereafter complained that the sheriff had consulted with the district attorney and should be placed under the rule, there is no error in the court’s refusal to do so under the circumstances surrounding the case; besides, the bill of exceptions was filed too late. Following Hahn v. State, 73 Texas Crim. Rep., 409. 6. —Same—Separation of Jury—Statement of Facts—Motion for Hew Trial. • Where the statement of facts of the testimony of the witnesses heard by the trial court in passing on defendant’s motion for new trial on the ground of the separation of the jury was filed after term time the same can not he considered on appeal. Besides, if such statement of facts was considered, it would show no reversible error. Following Reyes v. State, 81 Texas Crim. Rep., 522, 196 S. W. Rep., 532.
83 Tex. Crim. 190Houston v. State (1918)
1. —Murder—Evidence—Moral Turpitude—Drunkenness. Proof that the witness was charged with a misdemeanor not involving moral' turpitude is not admissible, and there was no error in excluding testimony that the witness had been arrested for drunkenness several times in the preceding six months, it not being contended that she was drunk at the time of the homicide. Following Green v. State, 53 Texas Crim. Rep., 490, and other cases. 2. —Same—Evidence—Exhibition of Knife—Deadly Weapon—Intent. Upon trial of murder there was no error in exhibiting the knife to the jury which was used in the killing of deceased, as it was not shown to be a. deadly weapon per se, and was an element to be considered in determining the-intent of defendant and other controverted facts. 3. —Same—Evidence—Reputation of Deceased. Where, upon trial of murder, the evidence showed that the deceased bore the reputation of being a violent, dangerous, quarrelsome man, drunk or sober, thére was no error in not permitting the defendant to show that the deceased, when under the influence of. intoxicating liquor, had the reputation of such a character. 4. —Same—Evidence—Character of Deceased. Upon trial of murder there was no error in not permitting the defendant to prove the general reputation of deceased as having a quarrelsome and fighting disposition, the court qualifying the bill of exceptions that he had permitted testimony of the reputation of deceased as a fighting and dangerous man,, and this question was not disputed. 6.—Same—Evidence—Argument of Counsel. Upon trial of -murder there was no error in the argument of State’s counsel that the defendant and his wife lived as husband and wife before they were married, the evidence showing that they were living in a house of ill-fame -at the time of the homicide; besides, this argument was withdrawn by the charge of the court. 6.—Same—Charge of Court—Requested Charge—Self-defense—House of Prostitution. Where, upon trial of murder and a conviction of manslaughter, the evidence showed that the homicide occurred in a 'house of prostitution, there was no error in the refusal of the court of a requested charge to the effect that the jury could not consider the character or reputation of the house in which the homicide took place, or the parties therein, as in any manner abridging the defendant’s right of self-defense, the court’s main charge not qualifying defendant’s right of self-defense; nor in rejecting testimony that the deceased received part of the money which was earned by the women in the house of ill-fame, etc. 7.—Same—Jury and Jury Law—Practice on Appeal—Manslaughter—Discretion of Court. Where defendant complained that after the trial court on his request held as disqualified a number of jurors, because they stated that if it should develop that defendant was living in a house of prostitution at the time of the homicide it would influence them, and thereafter declined to permit the same question to be asked further of other jurors, held, that while this was the basis for a peremptory challange, it was in the court’s discretion to refuse to permit such question in examining jurors on their voir dire; besides, the question raised was for the object of reducing the grade of the offense to manslaughter, as shown by the bill of exceptions, of which defendant was convicted, and there was no reversible error.
83 Tex. Crim. 195Hines v. State (1918)
The opinion states the case.
83 Tex. Crim. 198Border v. State (1918)
Tried below before the Hon. Frank S, Boberts. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary.
83 Tex. Crim. 198Borrer v. State (1918)Affirmed
1. Homicide <§=325 — Appeal—Instructions —Waives. Where one indicted for murder makes no objection to the submission of the issue of manslaughter, he waives his right to complain thereof on appeal, in' view of Act 33d Leg. c. 138 (Vernon’s Ann. Code Cr. Proc. 1916, arts. 735, 737, 737a, 743), relating to instructions in criminal cases. 2. Homicide <§=325 — Appeai^Objecttons— Conviction oe Lessor Degree. Where one charged with murder failed to complain at trial of a charge on manslaughter, conviction of manslaughter will not be reversed, manslaughter being a grade of culpable homicide included in an indictment for murder by the express terms of Vernon’s Ann. Code Cr. Proc. 1916, art. 772, and article 771, authorizing a conviction for any inferior degree of an offense. 3. Criminal Law <§=3728(5) — 'Argument oe Counsel — Request eor Instruction. Unless the remarks of counsel in argument are obviously of a nature to impair the rights of accused, they will not authorize a reversal, though improper, in the absence of a special charge requesting their withdrawal. 4. Criminal Law <§=>723(2) — Arguments oe Counsel — Inflammatory Remarks. In a trial for murder, a remark of the counsel for the state that the case reminded him of the first assassination, referring to the story of Cain and Abel, was not improper; the state’s theory being that the homicide was an assassination. 5. Criminal Law <§=>726 — Argument oe Counsel — Retaliatory Remarks. In a murder trial, remark of the counsel for the state on argument that it was not he that was asking for the conviction of accused, because he was simply “the representative of the law-abiding citizenship of your county,” was not reversible error, where it was invited by the statement of defendant’s attorney that the prosecuting attorney was asking for the life and liberty of defendant. 6. Criminal Law <§=>729 — Argument — Cure oe Error. A remark of the state’s counsel in a murder trial that he was not asking for defendant’s conviction personally, hut as a representative of the law-abiding citizens, was not so improper as to render it incapable of withdrawal by special charge. 7. Criminal Law <§=715 — Argument oe Counsel — Use oe Sketch and Illustrations. In a prosecution for murder, it was not error to allow the state’s counsel in his argument to draw a rough sketch of the roads, fences, fields, and pastures described by the witnesses, touching the scene of the homicide, the sketch not being handled by the jury, but merely used as illustration. 8. Criminal Law <§=>784(3) — Instructions— . Circumstantial Evidence. In a murder trial,, a charge on the law of circumstantial evidence is required only where the state relies on circumstantial evidence alone, and is not necessary where accused admits the homicide. 9. Criminal Law <§=726 — Argument oe Counsel — Retaliatory Statements. In a murder trial, where accused admitted the killing and defendant’s attorney had discussed the law of circumstantial evidence, it was not prejudicial- error for the state’s attorney to state that defendant’s counsel had stated the rule of circumstantial evidence correctly, but that he should not have made the argument because the court had not charged on circumstantial evidence. 10. Criminal Law <§=>804(1) — Instructions— Verbal and Written Instructions. In a murder trial, a verbal instruction that the jury must consider the case solely on the evidence and disregard arguments not based thereon, was not error, in the absence of a request for a written instruction. 11. Criminal Law <§=719(1) — Argument oe Counsel — Arguments Not Based on Evidence. In a prosecution for murder by shooting, argument by the state’s attorney that it was a matter of common knowledge that shots are often deflected from a straight course on striking an object was not error as improper comment as to a matter not supported by expert testimony. 12. Criminal Law <§=>730(12) — Argument oe Counsel — Personal Reference to Accused. In a prosecution for murder, a remark by the district attorney, while pointing to accused: “Look at his'face. You have a right to look at his face. Gentlemen of the jury, that man is mad right now” — while improper, was not prejudicial error, in view of instruction to disregard it. 13. Criminal Law <§=>719(1) — Argument oe Oounsei>-Matters Not Sustained by Evidence. In a prosecution for murder, a remark of the district attorney that accused had not informed H., “one of the best men in the county,” of the shooting, was not error, though there was no evidence as to the character of H. 14. Witnesses <§=*240(4) — Leading Questions. In a prosecution for murder, where deceased was barefooted, the question whether there were any barefoot tracks leading away from the cultivator with which deceased was working, although answerable by “Yes” or “No,” was not leading, because it contained no suggestion as to what reply was sought. 15. Witnesses <§=243 — Leading Questions— Discretion. Where a witness is very old and not unfriendly to accused, it is not an abuse of discretion for the trial, court to admit leading questions. 16. Criminal Law <§=447 — Parol Evidence —Impeaching Document. In a prosecution for murder, where the evidence of decedent’s wife given at inquest was reduced to writing, and signed by.her some time afterwards, it was not error to permit her to testify that she made certain statements at the inquest, notwithstanding the written statement did not contain them; such statement not being conclusive as to her testimony at the inquest. 17. Criminal Law <§=656(5) — Conduct oe Court — Instructions as to Witnesses. In a prosecution for murder, it was not reversible error, as indicating his opinion of the credibility of a witness, for the court to instruct the sheriff to tell the witness, who was under the rule, to report to the court before leaving the courthouse; it not appearing that such instruction came to the jury’s knowledge.
83 Tex. Crim. 205Sherman v. State (1918)
1 —Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence although conflicting was sufficient to sustain the conviction, there was no reversible error. 2—Same—Venue—Rule Stated—Judicial Knowledge—Presumption. This court judicially knows that the City of Dallas is in Dallas County fcy reason of the statute which fixes that place as the location of the Court of Civil Appeals; besides, the presumption is that the venue is proved, unless the matter is properly contested or shown in some way by the record that it was not hi the alleged county. 3 —Same—Evidence—IBill of Exceptions. Where the bill of exceptions showed that the exhibition before the jury of cc'-tam pieces of old iron were die tools and pieces of iron taken from the pocket of defendant at the time of the arrest at the house, there was no reversible error, besides, the bill of exceptions was defective. 4.-—Same—Evidence—General Demurrer—Rule Stated. Where evidence may be admissible for any purpose on trial, a general demurrer is not sufficient. 5 —Same—Evidence—Exhibits to the Jury—Bill of Exceptions. Where the grounds of objection are too general and the facts are not sufficiently stated in the bills of exception to show why the introduction of several pieces of old iron in evidence was erroneous, there is nothing for review. 3 —Same—Evidence—Bill of Exceptions. Where appellant objected to the introduction in evidence of certain parts of o. water heater torn down on the inside of the burglarized house, hut the bill of exceptions was too vague to be considered on appeal, there was no error; besides, there was no error in admitting the evidence.
83 Tex. Crim. 207Barnes v. State (1918)
1. —Passing Forged Instrument—Verdict—Practice in District Court. Where defendant was indicted on two counts, the first for forgery and the second for passing that forged instrument, and the State abandoned the first count, and the jury was so instructed there was no error in permitting the jury to change the verdict in the jury box by erasing “first” and writing “second” before the word “count”; besides, there were no objections made at the time and as this was an informal verdict there was no error in having it corrected under the direction of the court. 2. —Same—Sufficiency of the Evidence—Question of Fact—Alibi—Charge of Court. Where, upon trial of passing a forged instrument, t'he testimony for the State was sufficient to sustain the conviction, although defendant introduced. testimony of an alibi, there was no error under a proper charge of the court, as Í the jury are the exclusive judges of the credibility of the witnesses and of the weight to be given their testimony. ;
83 Tex. Crim. 210Berry v. State (1918)
1.—Local Option—Recognizance—Practice on Appeal. Where, upon appeal from a conviction of a misdemeanor, the recognizance-1 was defective, appellant was allowed, under article 923, Code Criminal Procedure; to file a new recognizance in the lower court 8.—Same—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence, al»' though circumstantial, sustained the conviction, there was no reversible error. 3.—Same—Circumstantial Evidence—Misdemeanor—Charge of Court. Upon trial of a misdemeanor, where the conviction depended upon eircum-l stantial evidence, the court should have submitted a requested charge on circumstantial evidence; however, in- the absence of an exception to the court’s refusal thereof, there was no reversible error. Following Schneider v. State, 70 Texas Crim. Rep., 517, and other cases. 4. —Same—Disqualification of Judge. The conditions named in the Constitution, establishing the disqualification of the judge, are exclusive, and prejudice against the accused on part of the judge is not named therein and does not disqualify him. Following Trinkle v. State, 59 Texas Crim. Rep., 257, and other cases. 5. —Same—Constable—Witness. A -constable who is a witness in a criminal case may, nevertheless, summons talesmen; especially, where he is designated by the sheriff as the officer upon attendance upon the court. 6. —Same—Charge of Court—Requested Charges. In the absence of exceptions to the court’s charge and the refusal of requested charges, the. matter can not be reviewed on appeal. 7. —Same—Evidence—Res Gestae.. Upon trial of violation of the local option law, the testimony that the defendant demanded a certain price for his whisky was admissible as res gestae, and other circumstances as to the contents of certain bottles left in the barber shop, was admissible in evidence. Following Myers v. State, 56 Texas Crim. Rep., 222. 8. —Same—Evidence—Self-serving Declaration. What defendant said to the county attorney after his arrest with reference-to the contents of a certain bottle left with same, was self-serving and inadmissible. 9. —Same—Motion for Mew Trial. Where the court, in overruling the motion for new trial, heard evidence thereon, there was no reversible error, in the absence of (bills of exception or "statement of facts. 10. —Same—Intoxicating Liquor—Sufficiency of the Evidence. Where, upon trial' of a violation of the local option law, the evidence, although circumstantial, was sufficient to prove that the liquid sold was intoxicating liquor, the conviction is sustained. Following Pike v. State, 40 Texas Crim. Rep., 613.
83 Tex. Crim. 215Ingram v. State. (1918)
The opinion states the case.
83 Tex. Crim. 215Gibson v. State (1918)
The opinion states the case.
83 Tex. Crim. 218Mays v. State (1918)
The opinion states the case.
83 Tex. Crim. 219Spohn v. State (1918)
Bape—Statement of Facts—Bills of Exception. In the absence of a statement of facts and hills of exceptions, refused requested charges on the grounds of the motion for new trial can not be considered on appeal.
83 Tex. Crim. 220Ditto v. State (1918)
1.—Burglary—Insufficiency of the Evidence. Where, upon trial of burglary, the money found in possession of the defendant shortly after the burglary did not correspond with that taken from the house and the only other evidence which tended to connect the defendant with the transaction was the comparison of the shoe he was wearing at tile time he was arrested with the tracks found near the window of the stofe which was burglarized, the evidence was not sufficient to sustain the conviction. 3.—Same—Newly Discovered Evidence. •' i Where the judgment is reversed and the cause remanded, the alleged newly discovered testimony can not be considered, although some of it seemed to have been brought within the rule. 3. —Same—Suspended Sentence-Private Residence—Storehouse. Where the indictment charged the burglary of a storehouse, and not a private residence, the court should have submitted the plea for a suspended sentence. . i 4. —Same—Argument of Counsel—Matters Not of Record. Where it was shown, upon ‘an appeal from the conviction of burglary, that defendant had served as a train porter for fifteen years, it was reversible error ' to permit the State’s counsel to state in his argument that another train porter was in the penitentiary for a similar violation of the law, there being no evidence in the record of this.
83 Tex. Crim. 222Lay v. State (1918)
The opinion states the case.
83 Tex. Crim. 223Manuel v. State (1918)
Burglary—Insufficiency of the Evidence. Where, upon trial of burglary, the evidence was insufficient to sustain the conviction, the same can not be sustained on appeal. Prendergast, Judge, dissenting.
83 Tex. Crim. 225Redick v. State (1918)
The opinion states the case.
83 Tex. Crim. 228Burkhardt v. State (1918)
1.—Murder—Deputy Sheriff—Officer—De Facto Officer. Where, upon trial of murder, the evidence showed that the homicide grew out of the attempted arrest of defendant by the deceased, who was a deputy! sheriff, and defendant claimed upon trial that the deceased at the time of the homicide was not an officer and that the attempted arrest was illegal and was an assault justifying defendant to resist, etc., but the record showed that de- i ceased had been" appointed, although such appointment could not be found on file after diligent search and was therefore proved orally, which under the cir-, cumstances was permissible, there was no error in overruling defendant’s ob-' jections to such testimony. Besides, the record showed that the deceased was an officer de facto. Following Hull v. State, 50 Texas Crim. Rep., 607, and other cases. 3.—Same—Right to Arrest Without Warrant. ¡ Under article 262, C. C. P., where the offender is about to escape in a case of felony and there is no time to procure a warrant, a peace officer may arrest without it. Following Cortez v. State, 47 Texas Crim Rep., 10, and other 1 cases. And the information upon which. the officer acted was a question for the jury as was the question as to whether the defendant resisted a legal arrest, , and' that the deceased was an officer. Following Lynch v. State, 41 Texas Crim. ’ Rep., 510, and other cases. 3. —Same—Knowledge of Defendant—Officer—Question of Fact—Flight. ' Whether the defendant had knowledge of the fact that deceased was an officer was a question of fact; but if the defendant was unaware of the official j character of deceased, the officer not having time to disclose it, his flight would not deprive him of his right of self-defense against an effort to recapture him. Following Miers v. State, 34 Texas Crim. Rep., 161, and other cases. 4. —Same—Right of Arrest—Stolen Property. Where, upon trial of murder, it was disclosed that deceased, who was an I officer, attempted the arrest of defendant at the- time of the homicide to prevent the consequences of theft and to seize personal property which had been i stolen, he was authorized to make such arrest even though he was not an officer, under article 376, Vernon’s C. C. P. Following English v. State, 34 , Texas Crim. Rep., 190, and other cases. 5. —Same—Excessive Force—Charge of Court. Where, upon trial of murder, it was shown by the .evidence that the homi- | cide grew out of an attempted arrest by deceased of defendant, and raised the issue of excessive force touching the acts of deceased and others, and defendant 1 in resisting such arrest, the court properly submitted this issue to the jury, ' and so far as the correctness of said charge was challenged by defendant’s objections thereto, there was no reversible error. Following Condron v. State, 69 Texas Crim. Rep., 513. 6. —Same—Evidence--—Confessions—Arrest. , W'here, upon trial of murder growing out of an -arrest or attempt to arrest ' after a theft was coinmitted, the complaint of defendant that the State was permitted to prove by the sheriff after the arrest without warning that defend- ! ant confessed to the theft or burglary can not be sustained, because the fruits ‘ of the theft were found as confessed, and the evidence of such confession was material in the homicide case in that it tended to show motive and to rebut i the defendant’s theory of defense that the fatal shot was fired by him with' no intent to kill the deceased- 7. —Same—Evidence—Telephone—Conversation—Hearsay. Evidence of the conversation with the sheriff over the telephone with a third party, who claimed that before the attempted arrest of defendant by deceased, at the request of the latter with the sheriff about the propriety of arresting defendant, was hearsay and inadmissible. 8. —Same—Provoking Difficulty—Charge of Court. Where, upon trial of murder, the evidence showed that the homicide grew out of the attempted arrest of defendant by the deceased and others whose prior relations with the defendant were friendly, and that the fatal shot was fired in defendant’s attempt to escape arrest, and the evidence did not raise the issue of provoking the difficulty, it was reversible error to charge on this phase of the law. Following Reese v. State, 49 Texas Crim. Rep., 242, and other cases. 9. —Same—Buie Stated—Self-defense—Provoking Difficulty. Where the issue of self-defense is raised and submitted, its limitation by a charge of the court upon provoking the difficulty without evidence to justify it, has uniformily been held prejudicial error requiring a reversal. Following Humphreys v. State, 73 Texas Crim. Rep., 433, and other cases.
83 Tex. Crim. 234Faubian v. State (1918)
The opinion states the case.
83 Tex. Crim. 238Roberson v. State (1917)
1. —Murder—Self-defense—Provoking Difficulty—Charge of Court. Where, upon trial of murder, the evidence raised the issue of provoking the difficulty, the court properly submitted a charge thereon. j 2. —Same—Manslaughter—Charge of Court—Provoking Difficulty. Where, upon trial of murder, the evidence raised the issue of manslaughter | as well as provoking the difficulty, and the court submitted a proper charge upon these issues, there was no reversible error. Following Woodward v. State, 54 Texas Crim. Rep., 86. 3. —Same—Converse Proposition—Abandonment of Difficulty. Where, upon trial of murder, defendant contended that the case was sub- | mitted to the jury from the State’s standpoint alone, with reference to provoking the difficulty, and that the converse of the proposition was not embodied in , the court’s charge, and that the evidence showed an abandonment of the dif- | ficulty, but the record showed on appeal that the court’s charge was correct'and otherwise followed approved precedent, there was no reversible error. Following Cox v. State, 57 Texas Crim. Rep., 427, and other cases. 4. —Same—Charge of Court—Rule Stated. , ■ Where defendant relies on self-defense and upon communicated threats ac- Í companied by an overt act and not on an actual attack, the court’s charge on self-defense should be accompanied by and connected with a charge on the law of threats, but where an actual attack is shown, as in the instant case, such ¡ charge is not required; besides, no special charge was requested. Following Chalk v. State, 35 Texas Crim. Rep., 116, and other cases. 5. —Same—Charge of Court—Undue Repetition. Where, upon trial of murder, the State’s requested charge was submitted, of which defendant complained as being a repetition unduly emphasizing the r proposition that there were shots fired after the necessity erased, and as not giving the converse of the proposition involved therein, and as omitting altogether the subject of manslaughter, yet, where the record on appeal showed ¡ that the defendant was convicted of manslaughter, and the charge of the court was otherwise correct under the evidence, there was no reversible error. 6. —Same—Attorney and Client—Agreement Between Counsel—Evidence., Upon trial of murder, the record showed on appeal, that before the trial an agreement was made by the attorneys of both parties that the examining trial ! testimony wfould be Available to the respective parties on the trial, and the record on appeal showed that this testimony and not said agreement was introduced in evidence without objection, there was no violation of the rule that an attorney has no implied authority to make an agreement with opposite counsel with reference to the introduction of testimony which is prejudicial to the accused, and there was no reversible error. Following Pollock v. State, '60 Texas Crim. Rep., 265, and other eases. 7. —Same—Evidence—General Reputation—Argument of Counsel. Where, upon trial of murder, the defendant complained of the cross-examination of his witnesses as to defendant’s reputation as a peaceable and law-abiding man, and also to the argument of State’s counsel with reference thereto, and the record on appeal showed a conviction for manslaughter, and that the examination of the witnesses in this case was legitimate, and that the argument of State’s counsel was invited by the defense, and that there were no requests for special instructions to disregard these, there was no reversible error. 8. —Same—Motion for Rehearing—Self-defense—-Carrying Pistol. Where, upon trial of murder, the evidence suggested that the meeting of the parties was unexpected and that defendant had the right to carry a pistol as a traveler, the court should have submitted the defendant’s requested charge, in connection with the court’s charge limiting defendant’s right of self-defense on provoking the difficulty, that the jury would not be authorized to draw an inference adverse to the defendant from his possession of the pistol at the time of the encounter. Following Shannon v. State, 35 Texas Crim. Rep., 2, and other cases. 9. —Same—Provoking Difficulty—Abandonment. See opinion, Davidson, Presiding Judge, that while the defendant is acquitted of" murder, yet if the trial court should undertake in the next trial to charge upon the issue of provoking the difficulty, he should also charge on the law of abandonment of the difficulty if the evidence is the same, and not permit too-great a latitude in cross-examination in impeaching the character of the defendant as a law-abiding man.
83 Tex. Crim. 250Lee v. State (1918)
Tried below before the Hon. J. B. Williams. Appeal from a conviction of the misdemeanor of receiving stolen property; penalty, a fine of thirty dollars and twenty days confinement in the county jail.
83 Tex. Crim. 257Earnest v. State (1918)
The opinion states the case.
83 Tex. Crim. 261Anderson v. State (1918)
The opinion states the case.
83 Tex. Crim. 268Bennett v. State (1918)
1.—Assault to Murder—Aggravated Assault—Principals—Charge of Court. Where, upon trial of assault to murder and a conviction for aggravated I assault, there was testimony by which the jury could find that the defendant and other parties were acting together in committing the assault, there was no error in submitting a charge on the law of principals, and also submitting the | converse proposition. 3.—Same—Evidence—Conspiracy—Principals—Bill of Exception. I Where, upon trial of assault to murder, the defendant objected to certain „ testimony introduced by the State showing that the defendant and other parties j acted together in the assault, but the bill of exceptions was insufficient to verify ¡ the objection, the same can not be considered on appeal. 3. —-Same—Evidence—Acts and Declarations of Third Parties—Bes Gestae. I Where, upon trial of assault to murder and a conviction of aggravated j assault, the defendant objected to certain acts and declarations of third parties, but the record showed that they were all acting together participating in the trouble, and also that the matter was res gestae of the transaction, there was i no error. . j ' 4. —Same—Evidence—Acts and Declarations of Co-principals. Where, upon trial of assault to murder and a conviction of aggravated j assault, the State introduced testimony describing the wounds found on the party injured, although it was not shown what party inflicted the wounds, but , that all the parties, including the defendant, acted together, there was no reversible error, under a proper charge of the court.
83 Tex. Crim. 272Ferguson v. State (1918)
1, Theft Over the Value of Fifty Dollars—Motion for Mew Trial—Bill of Exceptions. Where the hill of exceptions reserved to the action of the court in overruling the motion for new trial added nothing thereto, nor undertook to verify any statements made therein, nor to detract from same, the same could not be considered on appeal. 2.—Same—Statement of Facts—Questions and Answers. A statement of facts made up of questions and answers can not be considered on appeal and must be stricken from the record, and the judgment below affirmed.
83 Tex. Crim. 273Lemcke v. State (1918)
The opinion states the case.
83 Tex. Crim. 275Tarver v. State (1918)Confessed error
Aggravated Assult—Automobile Collision—Statute Construed—Information—Pleading. Where defendant was charged by complaint and information of a violation of the automobile law under section'35, chapter 207, p. 484 of the General Laws of the Thirty-fifth Legislature, and there were no allegations in the complaint or information that defendant either wilfully or with gross negligence collided with the vehicle in which the injured party was, the same was insufficient on a motion in arrest of judgment. Either or both of the grounds stated in the statute could have been alleged, if the words of the statute and the allegations are of equal significance. Unless this is done the pleading is bad, and the judgment is reversed and the cause dismissed.
83 Tex. Crim. 276Anderson v. State (1918)
The opinion states the case.
83 Tex. Crim. 281Whitener v. State (1918)
The opinion states the case.
83 Tex. Crim. 282Thomas v. State (1918)
The opinion states the case.
83 Tex. Crim. 284Moffett v. State (1918)
The indictment charged that the defendant did then and there unlawfully make an assault in and upon one Jim Scott, and by said assault and by violence and by putting the said Jim Scott in fear of life and bodily injury, did then and there attempt fraudulently to take from the person and possession of the said Jim Scott corporeal personal property of the said Jim Scott, and with the intent then and there on the part of him, the said defendant, to appropriate it to the use and…
83 Tex. Crim. 287Payne v. State (1918)
1. —Burglary—Accomplice—Contradicting Own Witness—Surprise. Where, upon trial of burglary, defendant set up an alibi and introduced' evidence that he was at another place than that at which the offense was committed, and the State thereupon introduced defendant’s brother-in-law to contradict defendant’s testimony as to the alibi and the testimony of such brother-in-law was neither affirmatively nor negatively injurious to the State’s case, and the matter at issue was not called to the attention of said State’s witness at the time he testified, it was error to permit the State to introduce a certain written statement which the said State’s witness had made in the office of the district attorney on the ground that the State was surprised at the testimony of its witness. 2. —Same—Charge of Court—Accomplice Testimony—Certifying Charge. Where the court’s charge on accomplice testimony was not certified by the trial court and was excepted to on that ground, the exception should have been sustained, as the statute is mandatory in this respect. Following Alberson v. State, 54 Texas Crim. Rep., 8.
83 Tex. Crim. 290Williams v. State (1918)
Murder—Death. Penalty—Motion for Hew Trial. Where, upon an appeal from a conviction of murder assessing the death penalty, the two grounds of the motion for new trial relating to questions off fact were in no way verified, the judgment must be affirmed in the absence of aJ statement of facts and bills of exception.
83 Tex. Crim. 291Riddick v. State (1918)
1.—Theft from Person—Circumstantial Evidence—Charge of Court. Where, upon trial of theft from the person, the case was one of circumstantial evidence, yet the facts made the taking, if it occurred by defendant, so close to the transaction that under the decisions it may not have been necessary to charge upon that issue, the case will not be reversed on that point. 3.—Same—Fraudulent Intent—Intoxication—Charge of Court. Where, upon trial of theft from the person, the defendant’s testimony was that he was drunk at the time of the transaction, and that he had no recollection of the same, and the evidence also showed that the defendant was found in a drunken stupor in the street shortly after the transaction, and there was other evidence of the absence of a fraudulent intent on the part of defendant at the time of the taking of the property, the question of intent should have been submitted to the jury apart from the fact whether the defendant was drunk or sober.' 3.—Same—Evidence—Fraudulent Intent. Where, upon trial of theft from the person, defendant offered testimony that shortly after the taking he came to a cafe with the money and watch in hand asking about the prosecuting witness, that he wanted to find Mm and return the same to him, it was error,to reject such testimony as it had a bearing upon defendant’s intent.
83 Tex. Crim. 292Arce v. State (1918)
1.—Murder—Practice on Appeal. Where the judgment was reversed and the cause remanded, questions of ¡change of venue, continuance, jury, etc., need not he considered on appeal. 2. —Same—State of War—Mexico—United States. Where the homicide occurred during the military troubles between the United States and Mexico, and that at the time of said homicide there existed between the two nations an incomplete state of war, although none had been declared on either side, and a military force was organized under the de facto government of Mexico with the view of invading the State of Texas, and which attacked the United States troops located on the American side of the Rio Grande, in which some of the American soldiers were killed and wounded, and some of the Mexican soldiers were arrested and tried for murder in the State District Court of Webb County, held, that if the defendants are guilty of an offense, .they should, be dealt with by the United States government, and not by the courts of Texas, as the question of inchoate or incomplete war is one for the Federal and not for the State authorities to deal with. 3. —Same—State of War—Reversible Error—State Courts. Where the defendants, wrho were tried for murder in the State court, were Mexican soldiers at the time of the homicide, controlled and commanded by their superior officers to attack a detachment of United States troops in a quasi state of war, they should not be convicted of murder in the State court if the same had jurisdiction. However, the matter is for the Federal authorities and not the State court, and the judgment of conviction must be reversed and the cause remanded.
83 Tex. Crim. 298Cowand v. State (1918)
1.—Stock Law—City Charter and Ordinance—Commissioners Court. Where the Commissioners Court ordered an election to vote upon the question of the stock law and the record showed on appeal that the justice precinct in which said election was held included a part of the City of Dallas, but no election was held therein, as no provision had been made whereby such election could have been held, the conviction for a violation of such stock law could not . ! be sustained, inasmuch as the city had the right to order such an election, and there was no authority in the Commissioners Court to order such election. Following Reuter v. State, 43 Texas Crim. Rep., 572. 8.—Same—Bight of Electors to Vote at Election—Stock Law—Local Option. Even if the election could have been held, the voters could not be deprived ' either directly or indirectly of their right to vote upon the question submitted in the election, where it affected their territory.
83 Tex. Crim. 301Harris v. State (1918)
Vagrancy—Bills of Exception—Statement of Facts. Where there was no order allowing the filing of the statement of facts and bills of exception any time after the adjournment of the County Court, and the same were filed eight days after the twenty days which could have been allowed for that purpose, they must be stricken out on the motion of the State. Following Durham v. State, 69 Texas Crim. Rep., 71, and other cases.
83 Tex. Crim. 302Moore v. State (1918)
Tried below before the! Hon. Richard I. Munroe. ‘ Appeal from a conviction of theft; penalty, five years imprisonment in the penitentiary. | The opinion states the case.
83 Tex. Crim. 304King v. State (1918)
Tried below before the Hon. Daniel Walker. Appeal from a conviction of burglary; penalty, three years imprisonment in the penitentiary.
83 Tex. Crim. 305Mizell v. State (1918)
The opinion states the case.
83 Tex. Crim. 307Burgemeister v. State (1918)
Judgment Nisi—Final Judgment—Right of Appeal—Interlocutory Judgment. Where appellant filed a motion in the trial court to set aside the judgment nisi on a forfeited bail bond, which -the court on his own motion dismissed, this gives no right of appeal, as there was no final judgment on the forfeited bail bond as provided under article 960, C. C. P., and the appeal must be dismissed.
83 Tex. Crim. 309Coates v. State (1918)
The opinion states the case.
83 Tex. Crim. 318Moore v. State (1918)
Theft—Other Offenses. Where, upon trial of theft of an automobile, there was no issue as to defendant’s identity or his intent, the introduction of testimony of other thefts in which defendant participated, which had no connection with the instant case, was inadmissible and reversible e^ror.
83 Tex. Crim. 319Solomon v. State (1918)
Burglary—Private Residence—Circumstantial Evidence—Recent Possession. Where, upon trial of burglary of a private residence in the night-time, the evidence was entirely circumstantial and the proof rested upon the possession of property recently stolen from the burglarized house, and the evidence failed to show that said property was in possession of defendant, but upon the hearsay evidence that he had received the same from another party, and there was no other evidence tending to connect the defendant with the commission of the offense, the conviction could not be sustained. Following Oliver v. State, 69 Texas Crim. Rep., 263, and other cases.
83 Tex. Crim. 319Moore v. State (1918)Reversed, and cause remanded
1. Criminal Law @=»369 (5) — Evidence—Other Crimes. In a prosecution for theft of an automobile, where defendant’s participation in the theft and disposition of the car were squarely in issue, evidence of other auto thefts in which defendant’s accomplice testified defendant participated was inadmissible, not serving to connect defendant with the crime, to prove his identity with it, or his intent, and not constituting any part of the res geste. 2. Criminal Law @=>510% — Corroboration —Accomplice in Larceny. That defendant, charged with theft of an automobile, was in possession of the recently stolen car in connection with his accomplice, was proper testimony to corroborate the accomplice, who was a state’s witness. 3. Larceny @=>49 — Evidenoe of Other Offenses — Identity. In prosecution for larceny of an automobile, other indictments and the verdict of a jury in another case were not intraducibie on the question of defendant’s identity.
83 Tex. Crim. 322Price v. State (1918)
1. —Local Option—Indictment. Where, upon trial of a violation of the local option law, the indictment followed approved precedent, the same was sufficient. Following Watson v. State, 52 Texas Crim. Rep., 551, and other cases. 2. —Same—Charge of Court—Allegation and Proof—Harmless Error. Where the indictment charged that the sale was made to four persons,! naming them, it was essential that the proof should agree with the allegations, and a conviction could not he had that t'he sale was made to one of the parties ¡ named in the indictment, and a charge of the court which required this was! erroneous; however, the error was harmless, inasmuch as the proof showed that these parties were acting all together in t'he purchase of the whisky. Following Wimberley v. State, 60 Texas Crim, Rep., 65, and other cases.
83 Tex. Crim. 324Horace Kitchens v. State (1918)
The opinion states the case.
83 Tex. Crim. 325Thomas v. State (1918)
1.—Theft of Goats—Sufficiency of the Evidence—Actual Taking. Where, upon trial of theft of goats," the evidence was sufficient to support the conviction, and which justified the conclusion' that the defendant was the original , taker of the property, by his recent unexplained possession thereof, etc., there was no reversible error. 8.—Same—Bills of Exception—Rule Stated—Presumption. The appellate court indulges the presumption that the rulings of the trial court are correct, and the burden is upon the appellant by some authentic record, to show facts overturning the presumption, and this is usually done by bills of exception. 3. —Same—Bills of Exception—Rule Stated—Bystanders’ Bill. "It is the duty of the appellant to prepare his bill of exceptions and of the judge to allow it, or to file in lieu of it a bill prepared by him, and to controvert the bill thus prepared the appellant has the right to file a bill verified by bystanders. Following Exson v. State, 33 Texas Crim. Rep., 461. 4. —Same—Bills of Exception—Rule Stated—Presumption. The court has no authority without the consent of appellant to qualify a. bill prepared by him, but when a bill is found in the record with a qualification attached, the consent of the appellant will be presumed in the absence of an objection and exception to the qualifications authenticated and brought up in the records. 5. —Same—Charge of Court—Bill of Exceptions. Where, upon trial of theft of goats, the trial court properly submitted the issues in his main charge together with the requested charges, there was no reversible error. 6. —Same—Representation by Counsel. In view of the nature of the case and the presence of experienced counsel, etc., the refusal of the trial court to continue the case because of the absence of the leading counsel, does not present error. Following Monroe v. State, 56 Texas Crim. Rep., 244, and other cases. 7. —Same—Suspended Sentence. The mere pleading of suspended sentence without proof to sustain it raises no issue for the jury. 8. —Same—Evidence—Practice in District Court. The fact that the State was permitted to introduce some evidence after itj had closed its case is in itself not an abuse of the discretion of the court;' besides, the same character of evidence was introduced without objection. 9. —Same—Argument of Counsel. I Where defendant was allowed two and one-half hours to present his case i to the jury no prejudicial error is shown. j 10. —Same—Argument of Counsel. Where defendant claimed that one of the State’s counsel was drunk and j that 'he used bitter and vindictive language, but the records showed that the i attorney was reprimanded and the jury instructed not to consider the argument, there was no reversible error in the absence of special instructions. j 11. —Same—Conduct of District Attorney. While the conduct of the District Attorney in asking the jury whether they ¡ wanted anything else when they were brought into court and requested the j reading of some testimony, was improper, yet it was not such a communication or conversation with the jury as is inhibited by the statute, and there was no j reversible error. 12. —Same—Defendant’s Failure to Testify—Allusion to. Where the language used in the charge to dis ‘“gard the remarks of State’s | counsel was not that which was used in the argument, but it appeared from the record that the language quoted in t'he bill of exceptions was legitimate argu- ¡ ment and it did not appear- as an allusion to defendant’s failure to testify, | there was no reversible error. ’ 13. —Same—Argument of Counsel. j Where the argument of counsel for the State was withdrawn by requested charges, and was not obviously harmful, there was no reversible error.
83 Tex. Crim. 332Woods v. State (1918)
Tried below before the 1 Hon. Bruce Young, Acting Judge. Appeal from a conviction of rape by force, etc.; penalty, imprisonment for life in the penitentiary.
83 Tex. Crim. 337Alt v. State (1918)
The opinion states the case.
83 Tex. Crim. 340Cooley v. State (1918)
1.—Theft of Horse—Sufficiency of the Evidence. Where, upon trial of theft of a horse, the evidence was sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error. 3.—Same—Continuance—Statement of Pacts—Practice on Appeal. Where, upon motion for new trial, the evidence heard thereon was not filed in term time, the same can not be considered on appeal. Besides, there was no error in overruling the motion for continuance. 3.—Same—Argument of Counsel—Alibi—Practice on Appeal. Where the appellant complained of the argument of State’s counsel, to the effect that alibi testimony was the most unreliable, etc., and the record tended to show that this was in response to the argument of appellant’s attorney, and that no injury resulted to the defendant, there was no reversible error.
83 Tex. Crim. 343Tomas Soria v. State (1918)
1.—Assault to Murder—Aggravated Assault—Principals—Charge of Court —'Converse Proposition. Where, upon trial for assault to murder and a conviction of aggravated assault, the evidence was very meager in regard to the proposition of principals, upon which issue the court submitted his charge, the converse of the proposition should also have been submitted. 8.—Same—Alibi—Charge of Court—Forms of Charge. Where, upon trial of assault to murder and a conviction of aggravated assault, the evidence raised the issue of alibi, the court should have submitted the requested charge, which was in proper form; Following Colbert v. State, 52 Texas Crim. Rep., 486, and other cases.
83 Tex. Crim. 345Rollins v. State (1918)
The opinion states the case.
83 Tex. Crim. 347Lutker v. State (1918)
Slander of Female—Insufficiency of the Evidence. Where, upon trial of slander of a female, the evidence was wholly insufficient to sustain the conviction, the judgment must be reversed and the cause remanded.
83 Tex. Crim. 348Gilbert v. State (1918)
1. —Escape—Motion to Reinstate—Dismissal. Where on a former day of the term the appeal was dismissed on account of the escape of appellant, and motion is made to reinstate the appeal, but, the record showed that defendant broke jail and escaped and there was noth-! ing to indicate that it was his purpose to return, the motion do reinstate must| be overruled. Following Lunsford v. State, 10 Texas Crim. App., 118, and other cases. 2. —Same—Insanity—Practice on Appeal. Where the only matter to be reviewed by this court upon motion to dismiss the appeal on account of the escape are matters involved in said escape, the! issue of insanity presented during the defendant’s trial can not be considered, j
83 Tex. Crim. 349Goss v. State (1918)
1. —Occupation—Selling Intoxicating Liquors—Recognizance. Where, upon appeal from a conviction of pursuing the business of selling intoxicating liquors in prohibited territory, the recognizance failed to allege that the appellant bad been convicted, naming the offense, the same was insufficient. However, the appellant having filed a sufficient recognizance in the court below, the appeal will be reinstated. 2. —Same—Motion for New Trial—Bill of Exceptions. Bills of exception add nothing to the motion for a new trial in the alleged etrors of the trial judge in admitting evidence complained of, unless they were reserved at the time of the introduction of the evidence. 3. —Same—Sufficiency of the Evidence—Questions of Fact. The credibility of the witnesses and the weight to be given to their testimony in the event of a conflict is a question for the jury, and where the evidence was sufficient to sustain the conviction, there is no reversible error. Following Looper v. State, 74 Texas Crim. Rep., 144. 4. —Same—Statutes Construed—Burden of Proof. While the burden of proof is upon the State to prove that in pursuance of the occupation of selling intoxicating liquors in prohibited territory, defendant made at least two sales to persons, who must he' named in the indictment, and that there must be other proof to show that he pursued such occupation, yet the measure of such other proof is not fixed by the law, hut where the proof shows that besides such two sales, defendant had received quantities of intoxicating liquor about the time alleged in the indictment, the conviction is sustained. Following Wagner v. State, 58 Texas Crim. Rep., 306, and other cases. 5. —Same—Case Stated—Sufficiency of the Evidence. Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibited territory, the evidence showed that defendant made two separate sales of such liquor to the persons named in the indictment, and besides he received quantities of intoxicating liquors through the express office about the time alleged in the indictment, and his explanation of his receipt thereof was a question of fact for the jury, who held him guilty, there was no reversible error. Following Robertson v. State, 77 Texas Crim. Rep., 410. 6. —Same—Declarations of Defendant. Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibited territory, the State was permitted to introduce the voluntary-declaration of the defendant while he was not under arrest, or before the grand jury, that he sold beer and requested the witness to assist 'him in getting immunity, and was not made to induce defendant to plead guilty and receive a suspended sentence, there was no reversible error. Following Brown v. State, 45 Texas Crim. Rep., 139, and other cases. 7. —Same—Evidence—Other Transactions. Upon trial of pursuing the occupation of selling intoxicating liquors in prohibited territory, there was no error in introducing evidence showing the ¡receipt of shipments of intoxicating liquors to the defendant through the express office about the time alleged in the indictment. Following Cowley v. State, 72 Texas Crim. Rep., 173, and other cases.
83 Tex. Crim. 354Butler v. State (1918)
The opinion states the case.
83 Tex. Crim. 356Bogus v. State (1918)
1. —Carrying Pistol—Information—Complaint—Jurat—Signature. Upon trial of unlawfully carrying a: pistol, where it appeared that the complaint upon -which the information was based was not signed by the complainant, but the jurat showed that he was sworn thereto, there was no error in permitting the ^complainant to sign said complaint after hearing evidence pro and con; besides, the evidence heard upon the motion to amend the complaint was not filed during term time and can therefore not be considered. Following Reyes v. State, 196 S. W. Rep., 532. 2. —Same—Insufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence was insufficient to sustain the conviction, the judgment must be reversed and the cause remanded. Prendergast, Judge, dissenting.
83 Tex. Crim. 358Ex Parte Alderete (1918)
From El Paso County. Original habeas corpus proceedings asking release from a fine of contempt of one hundred dollars and three days in the county jail for violating an injunction of the District Court of El Paso County in a civil proceeding. The opinion states the case.
83 Tex. Crim. 363Seeley v. State (1918)
The opinion states the case.
83 Tex. Crim. 363Seely v. State (1918)Reversed, with directions
(Husband and Wife <&wkey;312 — Abandonment AfteR Seduction and Marriage — Indictment. Indictment under Pen. Code 1911, art. 1450, for abandonment after seduction and marriage, an essential element of the offense being marriage after prosecution for seduction has begun in a court of competent jurisdiction, must allege the particular court where the complaint for seduction was filed, alleging the prosecution for seduction was begun in a court of competent jurisdiction is not enough.
83 Tex. Crim. 364Garrett v. State (1918)
Theft—Argument of Counsel—Reversible Error. Where, upon trial of theft, the State’s counsel indulged ±n unwarranted ■argument against the accused before the jury as an inducement to bring about a conviction, which the court refused to withdraw, and some of which bordered very closely on an allusion of defendant’s failure to testify, the judgment must be reversed and the cause remanded.
83 Tex. Crim. 366Elliott v. State (1918)
1. —Burglary—Evidence—Confession. Where defendant objected to the introduction of his written confession while under arrest, upon the ground that he could not write, but made his mark to the confession, and that the peace officer was not a competent witness, but it appeared from, the record that another competent witness signed the same, there was no error; besides, the confession led to the discovery of t'he fruits of the crime. 2. —Same—Evidence—Opinion of Witness—Harmless Error. Where defendant objected with reference to testimony showing the condition of the door of the house alleged to have been burglarized on the ground that it was an opinion of the witness, but t'he records showed otherwise, and that in case of error it was harmless, there was no reversible error.
83 Tex. Crim. 368Pace v. State (1918)Affirmed
Appeal from District Court, Lamar County; Ben H. Denton, Judge. J. C. Pace was convicted of larceny, and he appeals.
83 Tex. Crim. 368Page v. State (1918)
Tried below before the Hon. Ben H. Denton. Appeal from a conviction of theft; penalty, two years imprisonment in the penitentiary.
83 Tex. Crim. 369Carroll v. State (1918)
1.—Theft—Evidence—Bill of Exceptions—Telegram. Upon trial of theft, the introduction in evidence of a certain telegram sent by a third party to defendant, and which he did not receive, and which occurred after the alleged theft and which defendant did not authorize, was inadmissible in evidence and reversible error. Following Hollingsworth v. State, 78 Texas Crim. Rep., 489, and other cases. , '2.—Same—Argument of Counsel—Husband and Wife. Upon trial of theft, the argument of State’s counsel commenting upon the failure of the wife of defendant to testify as to the whereabouts of defendant at the time of the receiving of a certain telegram, was improper; especially where said telegram had no connection with the ease and was inadmissible in evidence. 3.—Same—Charge of Court—Alibi. Upon trial of theft, where defendant pleaded an alibi, a correct charge should have been submitted thereon.
83 Tex. Crim. 371Shackelford v. State (1918)
The opinion states the case.
83 Tex. Crim. 375Ex Parte Little (1918)
From Bexar County. Original habeas corpus proceedings asking release from custody under a fine of one hundred dollars for contempt in the County Court of Bexar County, Texas. The opinion' states the case.
83 Tex. Crim. 376Johnson v. State (1918)
1.—Murder—Appeal Bond—Approval by Judge. In the absence of the approval of the appeal bond, by the trial judge, the same is insufficient, and the appeal must be dismissed. However, this matter having been rectified, the appeal is reinstated and the case tried on its merits. 8.—Same—Murder—Corpus Delicti—Sufficiency of the Evidence. Where the appellant contended, upon an appeal from a conviction of murder, that the evidence was insufficient to establish a corpus delicti, hut the record showed that such evidence is sufficient upon that question, there is no reversible error. Davidson, Presiding Judge, dissenting.
83 Tex. Crim. 378Claunch v. State (1918)
1.—Keeping Disorderly House—General Verdict. Where, upon trial of keeping a disorderly house under certain clauses of articles 496 and 500, P. 0., the indictment containing several counts, two of which were submitted to the jury, who found a general verdict of guilty, imposing one penalty, and the evidence being sufficient to sustain either or both counts, there was no reversible error, 2. —Same—Constitutional Law—Statutes Construed—Indictment. Articles 496 and 500, P. C., defining the offense of keeping a disorderly house, are valid and constitutional, and an indictment thereunder in conformity to the statutes is sufficient. Following Joliff v. State, 53 Texas Crim. Rep., 61. 3. —Same—Evidence—Internal Revenue—General Reputation. Upon trial of keeping a disorderly house, charging that defendant as proprietor and lessee, etc., had caused to be posted license issued by the internal revenue collector, there was no error in admitting testimony that such license was seen by witness in defendant’s place of business, and also testimony as to the general reputation of the house, and a certified copy of said license. Following Novy v. State, 62 Texas Crim. Rep., 492, and other cases. 4. —Same—Evidence—Labels. Upon trial of keeping a disorderly house, there was no error in admitting in evidence labels on the bottles of the liquor purchased from defendant.
83 Tex. Crim. 382Claunch v. State (1918)
1. —Selling Non-intoxicating Liquor Without License—Statutes Construed —Amendment. The amendment of the statutes defining disorderly houses known as article 496, P. C., repeals article 157, P. C., which levys an annual occupation tax on all persons selling non-intoxicating malt liquors, and this conviction being under said last-named article can therefore not be maintained, and the judgment of the lower court and its affirmance in this court must be set aside and the cause is reversed and dismissed. Following Johnson v. Elliott, 168 S. W. Rep., 968, and other cases. 2. —Same—Statutes Construed—Irreconcilable Conflict. 'The provisions of article 157, P. C., licensing and making lawful, upon payment of the tax, the sale of non-intoxicating malt liquors in its application to prohibition territory, are manifestly conflicting to a degree rendering them irreconcilable with article 496, P. C., which makes it unlawful to sell such liquors in such territory.
83 Tex. Crim. 384Belado v. State (1918)
1.—Pure Food. Law—Jurisdiction—County Court—District Court. Where appellant was convicted in the County Court of Nueces County, of a violation of the pure food law, and fined twenty-five dollars and costs, and in default of payment thereof was placed in jail, whereupon he sued out a writ of habeas corpus before the judge of the Criminal District Court of said county, on the ground that the County Court had no jurisdiction and that he should have been tried in said District Court; and said district judge remanded him to custody, whereupon he appealed to this court. Held, that said County Court had exclusive jurisdiction in said case, and the judgment of the lower court is affirmed. 3.—Same—Statutes Construed—Jurisdiction—Misdemeanor. Under the Act of 1907, creating a Criminal District Court for Nueces County, there is no provision giving said Criminal District Court any original or appellate jurisdiction whatever of any misdemeanor, etc., and it was evidently the intention of the Legislature that in misdemeanor trials the jurisdiction should remain in the County Court of Nueces County.
83 Tex. Crim. 388Mirick v. State (1918)
Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge. J. E. Mirick was convicted of rape, and he appeals.
83 Tex. Crim. 394Reese v. State (1918)Affirmed
C. Jeffrey, Judge. Miles Reese was convicted of assault to commit rape upon a girl under 15 years of age, and he appeals.
83 Tex. Crim. 396Gillum v. State (1918)
83 Tex. Crim. 398Hays v. State (1918)
1. —Local Option—Sufficiency of the Evidence—Identification. Where, upon trial of a violation of the local option law, the identification of defendant was sufficiently shown and the evidence being otherwise sufficient, there was no reversible error. 2. —Same—Motion for New Trial—Affidavit—Newly Discovered Testimony. Where the motion for a new trial and the. affidavit attached thereto were insufficient to bring the absent testimony within the rule of newly discovered evidence, there was no error in overruling the same. 3. —Same—Jury and Jury Law—Challenges—Rule Stated. The rule is that all errors with reference to impaneling the jury relied upon must be reserved by bill of exceptions at the time of impaneling the jury, and if this rule is not followed then there must be something shown in the record excusing such want of diligence on the part of the party complaining, and the mere statement connected with the ground of the motion is not sufficient. Following Hill v. State, 10 Texas Crim. App., 618. And, therefore, the complaint that the State used eleven challenges instead of ten can not be considered in the absence of a bill of exceptions.
83 Tex. Crim. 400Ex Parte Hollingsworth (1918)
From Tarrant County. Original habeas corpus proceedings asking release from arrest for a violation of the so-called “ten-mile zone law” under Act of the Fourth Calied Session of the Thirty-fifth Legislature. The opinion states the case.
83 Tex. Crim. 415Wright v. State (1918)
The opinion states the case.
83 Tex. Crim. 418Spannell v. State (1918)
The following statement which we copy from appellant’s supplemental brief is substantially correct: “Appellant when arrayed at Coleman charged with the murder of Major Butler, at the proper time, filed and presented a proper plea of former jeopardy, and also of res adjudicate, of the main issue in the case, based upon the verdict of acquittal in San Angelo upon the charge of murder of his wife.
83 Tex. Crim. 435Gibson v. State (1918)
Burglary—Gustody—Escape—Voluntary Return. Where, upon appeal from a conviction of burglary, it appeared from the record that the appellant had effected his escape from jail while his case was pending in this court, and that he did not voluntarily return or offer to do so, the appeal must be dismissed on. motion of the State. Following Lunsford v. State, 10 Texas Crim. App., 118, disapproving Leonard v. State, 53 Texas Crim. Rep., 187.
83 Tex. Crim. 440Ricks v. State (1918)Affirmed
Criminal Law <&wkey;742(l) — Credibility and Weight op Witnesses — Questions for Jury. The credibility of all the witnesses, and the weight to be given their testimony, were for the jury.
83 Tex. Crim. 440Ricks v. State (1918)
Appeal from the District Court of Galveston. Tried below before the Hon. Clay S. Briggs. Appeal from a conviction of robbery by means of firearms and violence, etc.; penalty, five years imprisonment in the penitentiary. The testimony of the main State’s witness substantially showed that he walked into a saloon to buy a glass of beer, and there met the defendant and some other parties playing a game of pool with one “Son” Brown: that he bet two dollars on the game and lost it; but in the next game the State’s witness won two dollars, and that' defendant and his companions tried to take this money away from him, and that after some wordy altercation Staté’s witness went home; that in about thirty minute? thereafter, after the witness got home, the defendant and his companions rang the door bell and were admitted by someone in the house, whereupon one of the defendant’s companions grabbed the witness, demanding the money the witness had won at the pool game, and while the parties were tussling, defendant ran in with a pistol drawn, demanding that the State’s witness give him the money; whereupon witness gave him two dollars, when they demanded still more, when other parties interfered and a general strife ensued and someone rang up the police and the parties dispersed; that the State’s witness gave up the two dollars because the defendant drew a pistol on him and he was afraid of being shot, etc. This is the salient part of the State’s evidence, supported by other State’s witnesses. Of course, there appear in the record the usual contradictions and conflicts in the testimony.
83 Tex. Crim. 441Boyd v. State (1918)
Murder—Escape—Practice on Appeal. Where, pending an appeal to this court from a conviction of felony, it is made to appéar hy affidavit that appellant escaped and did not voluntarily return, the appeal must he dismissed.
83 Tex. Crim. 442Grace v. State (1918)
The opinion states the case.
83 Tex. Crim. 444Jones v. State (1918)
1. —Theft—Verdict—Sufficiency of the Evidence—Excessive Punishment. Where, upon trial of theft, the evidence was sufficient to sustain the conviction, and the punishment assessed by the jury was left within its discretion by the law, there was no reversible error. 2. —Same—Evidence—Bill of Exceptions—Buie Stated. In the absence of special exceptions, if the testimony was admissible for any .purpose, there is no reversible error. Following Morgan v. State, recently decided. 3. —Same—Identity of Defendant—Evidence. Upon trial of theft, there was no error in admitting testimony with reference to the matters that occurred between the purchaser of the alleged stolen goods and the seller thereof, and the conversations between them, in the instant case. 4. —Same—Bill of Exceptions. Where a bill of exceptions was allowed and filed over two months after the adjournment of the trial court and without any order, the same can not be considered on appeal.
83 Tex. Crim. 446Jenkins v. State (1918)
Assault to Rape—Sufficiency of the Evidence. Where, upon trial for assault to rape upon a female under the age or consent, the evidence was sufficient to sustain the conviction, there was no reversible - error.
83 Tex. Crim. 448Hubert v. State (1917)
The homicide occurred on Halloween night in the City of Austin, Texas, while the deceased, Bandolph Clark, was indulging with a crowd of other boys in Halloween pranks. The evidence is very voluminous but the salient facts, pro and con, can be gleaned from the testimony of the State’s witness Joe St. John and the testimony of the defendant.
83 Tex. Crim. 451Brown v. State (1918)
Appeal from the District Court of Kaufman. Tried below before the Hon. Joel B. Bond. Appeal from a conviction or murder; penalty, death.
83 Tex. Crim. 453Houseton v. State (1918)
1.—Murder—Evidence—Husband and Wife—Cross-examination. Where the accused introduces his wife as a witness, the State, on cross-examination, is entitled to ask her as to all matters germane and pertinent to her testimony given on her direct examination, and where, upon the instant trial, the matters inquired about had such relation to the direct testimony of the wife, and were so necessarily important to elucidate the truthfulness of her testimony in chief and related thereto, there was no reversible error. Following Dobbs v. State, 54 Texas Crim. Rep., 550, and other cases. 2. —Same—Evidence—Expert Testimony. Upon trial of murder there was no error in permitting a surgeon, who was an expert, to testify that the bullet in this instance could have taken the range it did, fired into a man lying on the fence. Following Pullen v. State, 70 Texas Crim. Rep., 156, and other cases. 3. —Same—Bill of Exceptions—Explanation by Court. Where defendant accepted the bill of exceptions as to the State’s manner in examining the witness, as explained by the court, there was no error. 4. —Same—Evidence—Res Gestae—Self-serving Declaration. Where defendant complained that the court erred in refusing to permit a certain witness to testify as to certain statements made by defendant to said Witness soon after the shooting, but the record on appeal showed that this was not res gestae, but a self-serving declaration, there was no reversible error. Besides, the bill of exceptions was defective.
83 Tex. Crim. 460Legois v. State (1918)
The opinion states the case.
83 Tex. Crim. 460Le Gois v. State (1918)Affirmed, and motion for rehearing overruled
Appeal from District Court, Wichita County; Wm. N. Bonner, Judge. J. B. Le Gois was convicted of unlawfully selling intoxicating liquor, and he appeals.
83 Tex. Crim. 462Powers v. State (1918)
Local Option—Sufficiency of the Evidence—Withdrawal of Announcement. Where, upon trial of a violation of the local option law, the defendant claimed, through his attorney, that after going into the case he was not prepared to meet the same as developed by the State, etc., but the record showed on appeal a want of diligence on the part of defendant and his counsel, and that there was nothing to show that the statements of the witness were not true or anything which would be of any service to appellant and which would have authorized him' to withdraw his announcement of ready for trial, there was no reversible error. Following White v. State, 40 Texas Crim. Rep., 366.
83 Tex. Crim. 464Sloan v. State (1918)
Tried below before the Hon. O. L. Lockett. Appeal from a conviction of murder; penalty, twenty-five years imprisonment in the penitentiary.
83 Tex. Crim. 465Ex Parte Fread (1918)
From Navarro County. Original proceedings praying for writ of mandamus to compel the court stenographer to make out transcript after proper pauper affidavit was made and filed. The opinion states the case.
83 Tex. Crim. 468Harris v. State (1918)
2 of Harris. Tried, below before the Hon. Murray B. Jones. Appeal from a conviction of aggravated assault; penalty, a fine of twenty-five dollars.
83 Tex. Crim. 472Coleman v. State (1918)
Escape of Convict—Employer—Hiring—Insufficiency of the Evidence. Where defendant was arrested under article 338, P. C., for escaping from his employer after he 'had been hired under a convict bond, and the evidence did not show a wilful escape, the conviction could not be sustained. Following Carter v. State, 29 Texas Crim. App., 2.
83 Tex. Crim. 474Kerr v. State (1918)
Tried below before the Hon. Dayton B. Steed. Appeal from a conviction of aggravated assault; penalty, a fine of one hundred dollars.
83 Tex. Crim. 475Torrez v. State (1918)
Murder—Self-defense—Charge of Court. Where, upon trial of murder, the evidence raised the issue of self-defense, a failure to charge thereon is reversible error. See facts in opinion raising the issue of self-defense.
83 Tex. Crim. 477Sullivan v. State (1918)
1. —Local Option—Agreement Between Counsels—Waiver—Rule Stated. While counsel can not agree to waive the introduction of criminative facts, the defendant may, if the waiver is warranted by law, but the fact that local option was in effect would not be considered as a criminative fact, and the absence of objections, there was no error. Following Morton v. State, 37 Texas Crim. Rep., 131, and other cases. 2. —Same—Evidence—Identification. Upon trial of a violation of the local option law it was reversible error to permit the introduction of a bottle of whisky in evidence which had not been sufficiently identified as the one alleged to have been sold. Dane v. State, 36 Texas Crim. Rep., 84, and other cases.
83 Tex. Crim. 479Ramos v. State (1918)
The opinion states the case.
83 Tex. Crim. 479Bassett v. State (1918)
The opinion states the case.
83 Tex. Crim. 481Samino v. State (1918)
The opinion states the case.
83 Tex. Crim. 484Walker v. State (1918)
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. 0.—Same—Continuance—Want of Diligence. -Where neither the application for continuance nor the motion for new trial showed proper diligence, accounting for the absence of the alleged witnesses, there was no error in overruling the same.
83 Tex. Crim. 485Smith v. State (1918)
2. Tried below before the Hon. C. A. Pippin. Appeal from a conviction of the theft of an automobile; penalty, two years imprisonment in the penitentiary. The opinion states the case.
83 Tex. Crim. 490Wilkie v. State (1918)
1. —Murder—Circumstantial Evidence—Insufficiency of Evidence. Where, upon trial of murder, the conviction depended purely upon circumstantial evidence, which, was not sufficiently strong to exclude every reasonable hypothesis except the guilt of the accused, who was convicted of murder, the conviction can not he sustained. Prendergast, Judge, dissenting. 2. —Same—Motive—Buie Stated. In the trial of a criminal cause it is not ahv'ays necessary to show motive, yet if existent it is a circumstance to be considered by the jury in connection with the other facts, and the cogency of motive is also to be determined by the evidence. 3. —Same—Circumstantial Evidence—Buie Stated—Presumption. It is t'he duty of the State to make out its ease, and it is not encumbent upon the defendant to prove a case for the State, as he is clothed with the presumption of innocence, and in case of circumstantial evidence the same must exclude every reasonable hypothesis except that of the guilt of the defendant, and failure by the State to make a case does not raise the presumption of guilt against the accused, and inferences and deductions from failure of proof must be taken in favor of defendant. 4. —Same—Motive—Case Stated. Where, upon trial of murder, the State’s theory on the question of motive was based upon the fact that defendant owed his mother-in-law a large sum of money on a tract of land, and that lie was afraid that she would press him for the payment of this money, and, therefore, he killed her, is not borne out by the facts appearing in the record on appeal and simply remains a theory, and is entirely speculative, the conviction is not sustained. Prendergast, Judge, dissenting. 6.—Same—Burden of Proof—Presumption of Innocence. The burden of proof is not on the defendant to prove his innocence or to account for facts that can be proved by the State and the instant case is not one of those cases where deductions adverse to' the defendant can be made for not disclosing facts exclusively in his possession, and the burden is upon the State to prove its case.
83 Tex. Crim. 500Fry v. State (1918)
1. —Passing Forged Instrument—Different Counts in Indictment. Where the indictment in the' first count charged forgery, and in the second count passing a forged instrument, and the latter alone was submitted to the jury, the count for forgery passes out and in future trials defendant will stand acquitted thereof. 2. —Same—Evidence—Other Offenses. Where, upon trial of passing a forged instrument, the knowledge and intent in passing the same became an issue, evidence of collateral similar offenses was admissible, and there was no error in admitting testimony that defendant passed other forged checks similar to the one for the passing of which he was being- tried, but the defendant’s connection therewith must be proved by the State. Following Ham v. State, 4 Texas Crim. App., 645. Davidson, Presiding Judge, dissenting, holding that none of these collateral transactions were sufficiently proved in the instant case. 3. —Same—Fictitious Person.—Payee—Evidence—Rule Stated. Ordinarily the rule is that where the payee of the questioned instrument is represented to be or reside in the particular locality, and sufficient inquiry is made developing the fact that such person is not known in the locality named, that a finding of the jury that this payee is fictitious would be sustained, but where it appears that no sufficient proof of forgery was made as to a number of checks introduced in evidence under this rule, and the proof was not suf-fieient to connect the defendant therewith, they were inadmissible in evidence. 4. —Same—Evidence—Collateral Crimes—Rule Stated. When conditions are such tha-t collateral crimes are admissible in evidence against the accused, the State is not limited as to the number of such collateral crimes it may introduce in evidence, but each of them depends upon its ability to introduce legal evidence competent to establish, in a forgery case, that the collateral transaction was a forgery. Prendergast, Judge, dissenting. 5. —Same—Collateral Forgeries—Rule Stated. Ho inference of the corrupt intent in passing the forged instrument declared on in the indictment is to be drawn from the passing of a similar instrument which is not shown to be a' forgery, and while the use of circumstantial evidence to establish a fact that an instrument, provable as a collateral transaction, was a forgery is admissible, yet it must amount to proof of the forgery of said collateral instrument, and evidence of circumstances upon which a suspicion may be founded is not sufficient. Following Taylor v. State, 47 Texas Crim. Rep., 109, and other cases. 6. —Same—Evidence—Other Offenses—Case Stated. Where, upon trial of passing a forged instrument, etc., the question of the intent and knowledge in passing the same became a material issue in the case, and the State introduced a large number oí checks similar to the one upon which the prosecution is based, and showed by circumstantial or direct testimony prima facially that said collateral instruments were forged as to their endorsement and knowingly passed by defendant, there was no error as to admitting them into evidence, but where it was also shown on appeal that a number of such instruments of this class were introduced in evidence and there was an absence of sufficient evidence that they were in fact forgeries, the same was reversible error. Prendergast, Judge, dissenting. 7.—Same—Evidence—Other Offenses—Ees Gestae. Where, upon trial of passing a1 forged instrument, it was shown that defendant, after he was indicted, attempted to gain access to various documents which bore upon the transaction and which were in the vaults of the courthouse, and in his attempt to do so in the night-time the homicide resulted therefrom, all the incidents of the transactions were res gestae and were admissible in evidence. Davidson, Presiding Judge, dissenting.
83 Tex. Crim. 511Roberts v. State (1918)
1. —Perjury—Stenographic Report—Statement of Facts—Rule Stated Ever since the passage of the Act of 1909 amending the act with reference to stenographic reports and with reference to statement of facts, it is required that the latter is in narrative form and not in question and answer form. Following Stephens v. State, 77 Texas Crim. Rep., 30, and other cases. Besides, if said statement of facts be considered there is no reversible error. 2. —Same—Sufficiency of the Evidence. Where, upon appeal from a conviction of perjury, if the statement of facts is considered, the evidence sustained the conviction, there is no reversible error. 3. —Same—Continuance—Motion for New Trial—Statement of Facts. A statement of facts containing the evidence upon motion for new trial must be filed during the term of the court, however, when the evidence is considered, there was no reversible error. Following Reyes v. State, 196 S. W. Rep., 532. 4. —Same—Oath Administered to Jury. Where the appellant claimed that the court committed an error in permitting the district clerk to swear orally that the jury was organized to try the issue in the case in which the alleged false testimony was given and that the record was the best evidence, but the record on appeal showed that the judgment of the court in the former case was introduced in evidence and showed that the jury was regularly and legally organized, etc., there was no error; besides, oral testimony was admissible. Following Watson v. State, 24 Texas Crim. App., 237, and other cases. 5. —Same—Court Stenographer. Upon trial of perjury, there was no error in permitting the court stenographer to testify as to what defendant had testified to in the trial in which the perjury originated. 6. —Same—Leading Question—Evidence. Where the question to witness was not leading, but even if it had been, the hill of exceptions was insufficient to point out the error, there was no error. Following Carter v. State, 59 Texas Crim. Rep., 74. 7. —Same—Charge of Court—Sufficiency of the Evidence. Where, upon trial of perjury, at least two witnesses testified that defendant swore to the material testimony upon which t'he perjury was based and by many more witnesses that defendant’s testimony was false, there was no error in the court’s failure to submit the requested charges to acquit the defendant. 8. —Same—Argument of Counsel. Where the State’s attorney did not go outside of the record in his argument there was no reversible error.
83 Tex. Crim. 511Burnett v. State (1918)
Abating Appeal—Practice on Appeal. Where, upon proper motion, it was made to appear to this court that appellant died pending his appeal, the case is hereby abated and dismissed.
83 Tex. Crim. 515Mills v. State (1918)
1.—Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence was sufficient to sustain t'he conviction, there was no reversible error. 8.—Same—Continuance—Immateriality of Testimony—Want of Diligence. Where the alleged absent testimony was immaterial, there was no error in overruling the application for continuance; besides, there was a want of diligence to procure the absent witness. 3.—Same—Motion for a Mew Trial—Continuance—Want of Diligence. Where appellant filed a motion for a new trial, complaining of the overruling of his motion for continuance, which was contested by the State, and which was overruled by the court, it must be presumed that appellant was not entitled to a new trial, Following Reyes v. State, 196 S. W. Rep., 532.
83 Tex. Crim. 518Ward v. State (1918)
The opinion states the case.
83 Tex. Crim. 521Morris v. State (1918)
The opinion states the case.
83 Tex. Crim. 522Joseph v. State (1918)
The opinion states the case.
83 Tex. Crim. 523Bennett v. State (1918)
1.—Vagrancy—Corporation Court—County Court—Jurisdiction. Where appellant was convicted in the Corporation Court of Texarkana for vagrancy under the State law and her fine was assessed at ten' dollars, the conviction was final and her attempted appeal to the County Court was properly ■dismissed. But had the fine exceeded twenty-five dollars, then her exclusive right of appeal would have been to this court. 3.—Same—Corporation Court—Constitutional Daw. Since the adoption of the amendment to the judiciary article of the Constitution, September 22, 1891, it has been held that the Legislature had the power to create a Corporation Court in any of the cities of this State and give it jurisdiction to try any misdemeanor case against the criminal laws of the State. Following Ex parte Abrams, 56 Texas Crim. Rep., 465, and other eases. 3.—Same—Constitutional Daw—Jurisdiction. Under article 5, section 5, of the Constitution of Texas, appellate jurisdiction co-extensive with the limits of the State is expressly conferred upon this court in criminal cases of whatever grade, and the Legislature has the power to give direct appellate jurisdiction from the Corporation Court of Texarkana to this court. Following Cornelius v. City of Dallas, 37 Texas Crim. Rep., 309, and other cases.
83 Tex. Crim. 526Rogers v. State (1918)
Bigamy—Previous Marriage—Insufficiency of the Evidence. To authorize a, conviction, in a trial for bigamy, it is necessary that the State prove that at the time defendant married the alleged second wife he had been previously legally married to another woman, who was living at the time the offense was committed, and in the absence of some further proof of identity than that developed upon trial, the conviction could not be sustained. Following Goad v. State, 51 Texas Crim. Rep., 393.
83 Tex. Crim. 527Clay v. State (1918)
Occupation—Selling Intoxicating Liquors—Recognizance. Where the terms of the recognizance were more onerous than the law requires and not in accord with the statutory requirements, the appeal must he . dismissed.
83 Tex. Crim. 528Mason v. State (1918)
1.—Murder—Motion for New Trial—Evidence—Practice on Appeal. Evidence beard on the motion for a new trial with reference to the separation of the jury, a statement of which was not filed during the term time, can not be considered on appeal. 8.—Same—Continuance—Bill of Exceptions—Motion for Mew Trial. In tlie absence of a bill of 'exceptions to the overruling of an application for continuance, the matter can not be considered on appeal, although a bill of exceptions was reserved to the action of the court overruling the motion for new trial which set out the application for continuance.
83 Tex. Crim. 530White v. State (1918)
The opinion states the case.
83 Tex. Crim. 532Lee v. State (1918)
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. 2. —Same—Bills of Exception—Charge of Court. Where the bills of exception failed to show that the requested charges of the court were presented to the trial judge and were acted upon by him before he read his charge to the jury, or before the jury retired, they can not he considered on appeal. 3. —Same—V erdict—Misspelling. A mere misspelling of words in the verdict which could not affect the validity of the verdict does not constitute reversible error.
83 Tex. Crim. 536Hammett v. State (1918)
The opinion states the case.
83 Tex. Crim. 536Carrell v. State (1918)
¡Final Judgment—Sentence—Jurisdiction. In the absence of final judgment or sentence in the record, this'court has no jurisdiction of the appeal and it must he dismissed.
83 Tex. Crim. 538Ex Parte W.I. Haley (1918)
The opinion states the case.
83 Tex. Crim. 539Davis v. State (1918)
1.—Murder—Indictment—Special Term of District Court. The contention that the indictment was found at a special term of the District Court, without giving thirty days’ notice prior to the time the court was held, is untenable. Following Mayhew v. State, 69 Texas Crim. Rep., 187, and other cases, 3.—Sufficiency of the Evidence. Where, upon trial of murder and conviction thereof, the evidence sustained the same under a proper charge of the court, there was no reversible error. 3. —Same—Evidence—Res Gestae. Where, upon trial of murder, the evidence showed that immediately after defendant had cut and stabbed deceased, the latter went directly to his store and died there within a very few minutes; that as soon as he reached there his wife testified he told her," “Oh! Mother, he has got me this time. He was to blame. He jumped on me.” Held, that the same was res gestae and admissible as a shorthand rendering of the facts. Following Clark v. State, 56 Texas Crim. Rep., 293, and other cases. 4. —Same—Declarations of Deceased—Res Gestae—Bill of Exceptions. There can be no doubt that the statement of deceased to the effect that “Oh, Mother, he has got me this time. He jumned on me,” was admissible, and the other “He was to blame,” not being separately objected to, there was no reversible error. Following Ortiz v. State, 68 Texas Crim. Rep., 524, and other eases. Besides the same character, of testimony was admitted without any objection. Following Wagner v. State, 53 Texas Crim. Rep., 306, and other cases. 5. —Same—Self-defense—Charge of Court. Where, upon trial of murder and a conviction of said offense, the court’s charge on self-defense, although in some respects defective, was cured by the requested charge, there was no reversible error. Besides there were no object jions to the court’s charge. 6.—Same—Eight of Going Armed—Charge of Court. Where no charge on provoking the difficulty is given, there was no error in the court’s failure to submit a requested charge on the subject of defendant’s right to arm himself in preparation of a contemplated attack. Following Carey v. State, 74 Texas Crim. Rep., 112, and other cases.
83 Tex. Crim. 548Barrios v. State (1918)
Appeal from the County Court of Dallas County at Law Ho. 2. Tried below before the Hon. W. L. Thornton. Appeal from a conviction of wife and child desertion; penalty, a fine of one hundred and fifty dollars. The opinion states the case.
83 Tex. Crim. 550Hughes v. State (1918)
1. —Murder—Continuance—Motion for New Trial. Where, upon trial of murder and a conviction of manslaughter, defendant pleaded self-defense, which was one of the principal issues in the case and about which there was conflict of testimony, and it appeared from the record on appeal that his first application for a continuance, alleging the absence of an eyewitness and showing proper diligence in securing 'him, was overruled, and that his motion for a new trial showed the materiality of the testimony of the absent witness, a new trial should have been granted. Following Roquemore v. State, 54 Texas Crim. Rep., 592, and other cases. 2.—Same—District Court—Sessions of Court—Suspension of Law. Where appellant contended that the District Court of the county of the prosecution was not in session at the time the indictment was filed, and that the judge suspended the law with reference to continuing the court in session, such contention is untenable when the different acts of the Legislature are properly considered, which provide that the term of court shall not expire with reference to a court in session, etc. S.—Same—Witness—Convict—Statutes Construed. Article 1617, Penal Code, which makes competent the testimony of convicts in prosecutions against one who, while a convict guard, assaults a convict, is valid. 4.—Same—Evidence—Intention of Defendant. Where defendant was prosecuted for killing a convict while he was a convict guard, there was no error in permitting testimony that shortly before the homicide defendant whipped deceased.
83 Tex. Crim. 554Buckner v. State (1918)
The opinion states the case.
83 Tex. Crim. 555White v. State (1918)
1. —Local Option—Limitation—Evidence—Bes Gestae. Where, upon trial of a violation of the local option law, the main issue in the case was whether the same was hatred by limitation, the defendant should have been permitted to show by a certain transaction which occurred between the witnesses and -the parties that the date of the alleged sale was .beyond the two years of limitation in misdemeanor eases, which showed a part of the res gestae and was not self-serving. Following Gceble v. State, 45 Texas Crim. Rep., 415, and other cases. 2. —Same—Limitation—Charge of Court. Where, upon trial of a violation of the local option law, the date of the alleged sale became an important issue in the case, and the defense showed that if the sale occurred it took place ’more than two years before the prosecutioti was instituted, this matter should have been specifically submitted to the jury in the court’s charge on limitation.
83 Tex. Crim. 559Wright v. State (1918)
The opinion states the case.
83 Tex. Crim. 560Sacks v. State (1918)
Cord Wood—False Measure—Rule Stated. The law does not require that in order to ascertain that a quantity of wood Is a cord that it shall be piled eight feet long, four feet high and four feet wide, but any other measurement or pile that contains a full cord would be sufficient, and where the evidence showed that the defendant did'not use a false measurement, the conviction could not be sustained.
83 Tex. Crim. 562Trevino v. State (1918)
83 Tex. Crim. 568Flewellen v. State (1917)
1.—Murder—Evidence—Conversation—Telephone—Res Gestae. Upon trial of murder there was no error in admitting in evidence sc conversation over the telephone by defendant and his comnanion with two certain women who were with deceased at the time of the killing, and who were importuned to meet defendant and his companion near the place of the homicide, nor the conversation of one of these women with defendant’s companion immediately after the homicide. 2. —Same—Evidence—Fabricating Testimony. Upon trial for murder there was no error in admitting in evidence defendant’s declarations and acts with one of the women who was at the homicide, after the same occurred, and which tended to show that the defendant was trying to induce said women to fabricate testimony. 3. —Same—Evidence—Size and Age of Deceased. Upon trial for murder, where the defendant introduced testimony that deceased was a very heavy kind of man, there was no error on cross-examination to show that deceased was about nineteen or twenty-one years of age, and that defendant was a man of about thirty-eight years of age. Following Treadway v. State, 65 Texas Crim. Rep., 208. 4. —Same—Evidence—General Reputation—Bill of Exceptions. Where the hill of exceptions in no way showed what occurred with reference to interrogating the witnesses as to defendant’s general reputation, there was no material nor reversible error. Following Huggins v. State, 60 Texas Crim. Rep., 214, and other cases. 5. —Same—Evidence—Self-serving Declaration. Upon trial of murder there was no error in excluding a self-serving declaration of defendant, to the effect that the deceased fired at him before the defendant shot at deceased, which declaration occurred long after the homicide. 6. :—Same—Evidence—Presumption. Upon trial of murder there was no error in excluding testimony with reference to defendant’s conduct some five months before the homicide, in taking no offense at what was said about the woman with whom he was infatuated and who afterwards was the cause of the difficulty. Following Maddox v. State, 76 Texas Crim. Rep., 217. 7. —Same—Evidence—Impeaching Witness—Rule Stated. The rule is uniform in this State that it is not permissible to impeach any witness for truth and veracity by showing that his or her reputation for chastity is not good. Following Stayton v. State, 32 Texas Crim. Rep., 33, and other cases. 8. —Same—Self-defense—Charge of Court. Where, upon trial of murder, the defendant claimed self-defense and the court in a separate and complete charge submitted the law on self-defense in accordance therewith, there was no reversible error. 9. —Same—Provoking Difficulty—Charge of Court. " Where, upon trial of murder, the evidence raised the issue of provoking the difficulty on the part of the defendant, there was no error in submitting a charge thereon and, also, on the converse of the proposition. Following Giesecke v. State, 64 Texas Crim. Rep., 531. See opinion for facts raising the issue of provoking the difficulty, in which the issue narrows down to a very close question. Morrow, Judge, dissenting. 10. —Same—Provoking Difficulty—Rule Stated. If a person by his own wrongful acts brings about the necessity of taking the life of another to prevent being himself killed, he can not say such killing was in his necessary self-defense, and malice, express or implied, will he imputed. Following Thumm v. State, 24 Texas Crim. App., 667, and other cases. 11. —Same—Malice—Charge of Court. Where, Upon trial of murder, the court submitted a- proper charge defining malice and malice aforethought, there was no reversible error. Following Witty v. State, 75 Texas Crim. Rep., 474, and other eases. 12.—Same—Charge of Court—Provoking Difficulty—Rule Stated. Wherever an issue of fact is presented in the case, whether for or against either party, during the trial, it is the duty of the court to submit the law to that issue, and there being evidence in the instant ease raising the issue of provoking the difficulty on the part of the defendant, it was the duty of the court to submit that issue to the jury; the issue of self-defense being in the case. Following Sorrel v. State, 74 Texas Crim: Rep., 505, and other cases. Morrow, Judge, dissenting.
83 Tex. Crim. 584Powell v. State (1918)
1.—Forgery—Indictment—Tax Collector—Pleading—líame, Where defendant was charged with forging a delinquent tax report, and the indictment failed to allege that the defendant was tax collector of the county of the prosecution, such instrument would create no pecuniary obligation to the State, and the indictment was bad on motion to quash; and this, although the defendant was described in the certificate attached to said report as tax collector, as this was descriptive of the instrument and not equivalent to a direct allegation that the defendant was in fact the tax collector. Following Beasley v. State, 39 Texas Crim. Rep., 688. 2.—Same—Buie Stated—Allegation and Proof. It is a rule of almost universal application, and is a requirement under our statutes, that everything that is necessary to be proved must be averred. Following Lynch v. State, 41 Texas Crim. Rep., 209.
83 Tex. Crim. 587Amonett v. State (1918)
1.—Occupation—Selling Intoxicating Liquors—Agency—Charge of Court. Where, upon trial of pursuing the occupation, etc., of selling intoxicating liquors in local option territory, the evidence showed that the defendant bought the liquor and delivered it to the alleged purchaser as his agent, the court should have submitted the requested instructions on the law of agency. Following Creed v. State, 71 Texas Crim. Rep., 509, and other cases. 8.—Same—Other Transactions—Charge of Court. While testimony of a sale made by the defendant to a party not named in the indictment as one of the purchasers of the liquor from defendant was admissible, as tending to show that defendant was pursuing the occupation of selling intoxicating liquors in prohibition territory, yet not having alleged such sale in the indictment it could not constitute a basis for conviction, and the court should have instructed the jury to this effect as requested. Following Fisher v. State recently reported, 197 S. W. Rep., 189, and other cases. 3.—Same—Former Acquittal—Sale Must Be Illegal. Where defendant was on trial for pursuing the occupation of selling intoxicating liquors in local option territory, he should have been permitted to show that 'he had been previously acquitted of a violation of the local option law as to the sale to one of the alleged purchasers, as it is only an illegal sale that forms the basis of conviction. 4.—Same—State’s "Witness—Cross-examination—Impeachment. Where one of the alleged purchasers was used by the State as a witness, the defendant, upon cross-examination of said witness, should have been permitted to prove by him that 'he had been previously arrested in different counties for various and sundry violations of the prohibition laws and incarcerated in jail, the evidence being sharply in conflict with reference to the sales.
83 Tex. Crim. 590Bolin v. State (1918)
The opinion states the case.
83 Tex. Crim. 593Wilson v. State (1918)
The opinion states the case.
83 Tex. Crim. 594Sampson and Sampson v. State (1918)
Theft of Indian Corn—Joint Offense—Information—Pleading—Intent. Where the information charged joint offenses by the two defendants of the growing, standing and ungathered Indian corn of the alleged owner, there was no objection in the pleader charging them all conjunctively, and where the evidence showed that the property was standing and ungatliered Indian corn, the contention that it was growing corn was not well taken, but the contention that, to sustain the conviction, the proof must show that defendants were joint offenders is correct, and where the evidence showed to the contrary, or at least was conflicting, a requested charge on this phase of the case should have been given. Besides, the evidence was insufficient to show a fraudulent intent.
83 Tex. Crim. 596Hayes v. State (1918)
Xiooal Option—Recognizance. Where the recognizance failed to recite that appellant was convicted, and the punishment awarded, the appeal must be dismissed on motion of the State.
83 Tex. Crim. 597Lozano v. State (1918)
The opinion states the case.
83 Tex. Crim. 598Ex Parte Bowman (1918)
Appeal from the District Court of Childress. Tried below before the Hon. J. A. Habers. Appeal from a habeas corpus proceeding asking a reduction of bail. The opinion states the case.
83 Tex. Crim. 599Gomez v. State (1918)
Theft of Cattle—Ownership—Possession—Insufficiency of the Evidence. Where, upon trial of theft of cattle, the proof failed to show the alleged ownership or that the alleged owner was ever in possession of the animal, the conviction could not be sustained.
83 Tex. Crim. 602Fults v. State (1918)
1. —Murder—Evidence—Opinion o£ Witness—Dying Declarations—Res Gestae. Upon trial of murder there was no error in admitting testimony of the declarations of deceased shortly after talcing the alleged poison that he would die, etc., unless relief was given him at once, etc., and that defendant administered the poison, shortly after which he died, this was res gestae as well as his dying declaration. Following Rice v. State, 49 Texas Crim. Rep., 569, and other cases. 2. —Same—Sufficiency of the Evidence. Where, upon trial of murder by poisoning, the evidence was sufficient to sustain the conviction, there was no reversible error. 3. —Same—Bills 'of Exception—Rule Stated—Acts of Defendant. The rule is where a bill of exceptions is qualified the qualification controls the bill of exceptions, and the two ■ together control and are superior to the statement of facts, where there is a conflict between the bill of exceptions and the evidence; and where the qualification of the bill showed that the statement of deceased that the defendant had given him a1 drink with poison in it was made in the presence of the defendant, who did not reply thereto, there was no reversible error. 4. —Same—Facts Stated in Opinion—Rehearing. Where appellant in his motion for rehearing contended that the matters were stated too strongly against defendant in the original opinion, but the records showed that the difference, if any, was immaterial, there was no reversible" error.
83 Tex. Crim. 607Lacey v. State (1918)
The opinion states the case.
83 Tex. Crim. 608Mireles v. State (1918)
1.—Rape—Misconduct of Jury—Public Policy. The bill of exceptions alleging misconduct of the jury, in view of the court’s qualification that it was not supported by proof, does not present reversible error. Besides, the use made by the jury of evidence legitimately before it can not be inquired into as a matter of public policy. Following Turner v. State, 161 Texas Crim. Rep., 97, and other cases. 8.—Same—Age of Prosecutrix—Sufficiency of the Evidence. Where, upon trial of rape upon a female under the age of consent, the evidence as to the age of prosecutrix was conflicting, yet sufficient to sustain the conviction, there was no reversible error on that ground. 3. —Same—Continuance—Diligence—Motion for New Trial. Where, upon trial of rape upon a female under the age of consent, defendant’s application for continuance was overruled, and it appeared from the ^record on appeal in the defendant’s motion for a new trial that the time intervening between the overruling of the application and adjournment of the court 'was so short that the defendant could not procure a verification of his claim That the records as to age of prosecutrix in Mexico would support his theory of defense, a new trial should have been granted. 4. —Same—Census Reports—Original Evidence—Rebuttal. Census reports are treated as original evidence of facts, which under the law are required to be recorded, at any event the census reports in the instant case were admissible as rebuttal testimony. Following Lott v. State, 66 Texas Crim. Rep., 152, 146 S. W. Rep., 544.
83 Tex. Crim. 612Hollis v. State (1918)
1. —Theft—Sufficiency of the Evidence. Where, upon trial of theft over the value of fifty dollars, the evidence sustained the conviction, there was no reversible error. 2. —Same—Continuance—Motion for New Trial. Where the application for continuance showed a want of diligence and the absent testimony was not material, and the motion for a new trial was without proper affidavit, there was no reversible error. 3. —Same—Declarations of Defendant. Where the records showed that the declarations of defendant were made before he was arrested, they were admissible in evidence.
83 Tex. Crim. 613Allen v. State (1918)
Embezzlement—Insufficiency of the Evidence. Where defendant was convicted of embezzlement, but the evidence failed to show the fiduciary character of defendant, the conviction could not he sustained.
83 Tex. Crim. 616Bibb v. State (1918)
L.—Murder—Character of Female—Evidence—Insulted Female—Statutes Construed. While the statute provides that the general character of the insulted female may be investigated, in order to ascertain the extent of the provocation, this does not prevent the introduction of specific acts of insulting conduct or illicit relations, and where defendant was seeking a reconciliation with his wife, with whom deceased carried on illicit relations, and killed the deceased while in the act of renewing such relations, the question of manslaughter is not eliminated, especially where the State proved these matters and failed to show matters in extenuation, and the last insulting conduct, rather than the prior conduct of deceased, must form the basis of the homicide. 2. —Same—Charge of Court—Manslaughter—Weight of Evidence. Where, upon trial of murder, the evidence showed that the homicide occurred during an illicit meeting between the deceased and defendant’s wife in which the defendant overtook them and killed the deceased, a charge of the court that if the jury believed that the killing was done not on account of any insulting act or improper conduct of deceased towards defendant’s wife as a provocation, but from hatred or revenge and in pursuance of a design previously formed when defendant’s mind was sedate and deliberate, the killing would not be manslaughter, was on the weight of the evidence and reversible error. Following Ratigan v. State, 38 Texas Crim. Rep., 301, and other cases. Prendergast, Judge, dissenting. 3. —Same—Evidence—Contents of Letter—Privileged Communication— Predicate. Upon trial of murder, where the evidence showed that defendant came to the 'witness and secured him to write a letter directed to defendant’s wife, the . contents of this letter, without laying a proper predicate for the introduction of secondary evidence should not have been introduced, although its exclusion could not have been claimed on the ground of privileged communication between husband and wife. 4. —Same—Evidence—Immaterial Circumstance. Where, upon trial of murder, the evidence showed that the deceased and defendant’s wife were watched by the defendant in their illicit relations, testimony that two officers appeared on the scene should not have been admitted in evidence, there being no. connection shown with t'he transaction. 5. —Same—Evidence—Res Gestae. Upon trial of murder, there was no error in admitting testimony that about the time of the homicide in which defendant killed deceased while in illicit relations with defendant’s wife, the witness heard a voice saying, "Oh! Daddy, why did you do it?” This was res gestae and was a question for the jury. Davidson, Presiding Judge, dissenting. 6. —Same—Husband and Wife—Res Gestae. Upon trial of murder, there was no error in admitting testimony of a witness showing the res gestae statement of the wife of the defendant shortly after he had killed deceased to the effect that defendant had killed him, etc., and this does not come within the inhibition of the statute which prohibits the wife from giving testimony against the husband. Following Robbins v. State, 73 Texas Crim. Rep., 367, and other cases. Davidson, Presiding Judge, dissenting.. 7. —Same—Evidence—Scene of Homicide. While not perhaps reversible error, yet unless relevantly shown, testimony descriptive of the blood and other conditions manifesting themselves upon the scene of the homicide on the morning thereafter, should not have been introduced in evidence.