84 Tex. Crim.

Volume 84 — Texas Criminal Reports

194 opinions

84 Tex. Crim. 1Meador v. State (1918)
Carrying a Pistol—Statement of Facts—Bills of Exception. Where the statement of facts and bills of exceptions were not filed within the time prescribed by law, they can not be considered on appeal and the judgment must be affirmed.
84 Tex. Crim. 2Payne v. State (1918)
The opinion states the case.
84 Tex. Crim. 4Jones v. State (1918)
The opinion states the case.
84 Tex. Crim. 6Haynes v. State (1918)
The opinion states the case.
84 Tex. Crim. 8Bohannon v. State (1918)
The opinion states the case.
84 Tex. Crim. 16Trial v. State (1918)
Appeal from Karnes County Court. Dissenting opinion.
84 Tex. Crim. 33Lumpkin v. State (1918)
Passing Forged Instrument—Motion for New Trial—Newly Discovered Evidence. Where, upon trial of passing a forged instrument, defendant pleaded an alibi and defendant’s identity was the main issue in the case, a new trial should have been granted upon a showing, in his motion for a new trial, that defendant was not the man who passed the alleged forged instrument.
84 Tex. Crim. 35Williams v. State (1918)
Cutting Fence—Insufficiency of the Evidence. Where, upon trial of wantonly and wilfully cutting a fence, not his own, etc., the evidence failed to show that the defendant acted wantonly and wilfully in cutting the alleged fence, but rather with an intent to protect his own rights, the conviction could not be sustained.
84 Tex. Crim. 36Mitchell v. State (1918)
1. —Assault to Murder—Hearsay Evidence. Where, upon trial of assault to murder, the State was permitted to show by its witness what another party said that defendant said, which was denied by the other party, the same was purely hearsay and inadmissible. Following Casey v. State, 49 Texas Crim. Rep., 174, and other cases. 2. —Same—Continuance. Where the application for continuance showed due diligence and the materiality of the testimony of the absent witness, a continuance should have been granted.
84 Tex. Crim. 38Richardson v. State (1918)
Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained the conviction, there was no reversible error.
84 Tex. Crim. 39Williams v. State (1918)
The opinion states the case.
84 Tex. Crim. 40Quaternick v. State (1918)
The opinion states the case.
84 Tex. Crim. 43Keel v. State (1918)
The opinion states the case.
84 Tex. Crim. 49Cox v. State (1917)
1. —Vagrancy—Common Prostitutes—Statutes Construed—Insufficiency of the Evidence. Vagrancy is a present condition or status and not an abandoned condition or status. A party may have been a vagrant in the past and this may not bar prosecution for keeping a disorderly house, but if she has abandoned such vice, it does not justify the prosecution for a present status of vagrancy, under articles 634-640, Penal Code. Prendergast, Judge, dissenting. 2. —game—Buie Stated—Past Condition—Abandonment—Common Prostitute. It is not sufficient that the defendant may have been in the past a common prostitute, but that status' must now exist to justify her arrest and detention; and where she has abandoned such a life, she is not a vagrant, although she may be subject to prosecution for having kept a. disorderly house. Following Pascal v. State, 138 S. W. Rep., 166, and other cases. Prendergast, Judge, dissenting. 3. —Same—Insufficiency of the Evidence—Common Prostitute—Sporadic Acts. Where, upon trial of vagrancy on the ground that defendant was a common prostitute, etc., the evidence did not show the accused to be a vagrant in that she was a common prostitute, and that only sporadic acts of sexual intercourse were shown, the conviction could not he sustained. Following Springer v. State, 16 Texas Crim. App., 591. Prendergast, Judge, dissenting.
84 Tex. Crim. 58Sweeney v. State (1918)
1.—Burglary—Statement of Facts—Bills of Exception. ' Where, upon an appeal from a conviction of burglary, it appeared from the record that the bills of exception and statement of facts were not filed within time, etc., they can not be considered, but the defects of the record having been remedied, the merits of the case are considered. 8.—Same—Indictment—Ownership—Possession. Where, upon trial of burglary, the indictment alleged the possession of the burglarized house in B. C. Alexander, and the evidence showed that his possession of the property stolen therefrom was in the alleged owner for the purpose of sale, this would constitute such control as to make the same sufficient ownership and possession under the statute. Davidson, Judge, dissenting. 3.—Same—Evidence—Other Transactions. Where, upon trial of burglary, the State was permitted to introduce testimony with reference to the disappearing of other property of the same kind at a different -time and a different place hot contemporaneous with the transaction alleged in the instant case and not shedding any light thereon, the same was reversible error. Prendergast, Judge, dissenting.
84 Tex. Crim. 75Alexander v. State (1918)
The opinion states the case.
84 Tex. Crim. 89Campbell v. State (1918)
1. —Murder—Charge of Court—Abandoning Difficulty—Rule Stated. The abandonment of the difficulty by the defendant does not arise where the difficulty was continuous, the only change being in the position of the parties, and where the facts did not raise the issue of abandoning the difficulty there was no error in the court’s failure to charge thereon. 2. —Same—Suspended Sentence—Charge of Court. Where defendant pleaded for suspended sentence, there was no error in the court’s failure to submit a requested charge that the jury should not regard tliis plea as any evidence of guilt; the court’s charge in other respects being full and correct.
84 Tex. Crim. 92Gomez v. State (1918)
1. —Theft of Cattle—Evidence—Ownership—Registration—Partnership— Brand. Where, upon trial of theft of cattle, the ownership was alleged in a partnership, there was no error to admit in evidence a certified copy of the registration of the alleged owners’ brand in the county of their residence. Following Turner v. State, 71 Texas Crim. Rep., 477, and other cases. And it was immaterial whether the alleged owners were partners or not. 2. —Same—Pleading—Former Conviction—Announcement. Where the record showed on appeal that the court offered to permit defendant to file a plea of former conviction, but refused to let him withdraw his announcement, there was no reversible error. 3. —Same—Verdict—Different Counts—Amendment. Where the indictment alleged theft of cattle and in another count the fraudulent receiving thereof, and the court only submitted the count on theft, there was no error in having the jury to so amend their verdict in the presence of the court as to apply only to the count of theft. 4. —Same—Charge of Court—Partnership. There was no error in the refusal of the court to peremptorily charge the jury to acquit because the proof showed that the owners owned the property as a firm. 5. —Same—Ownership—Consent—Rule Stated—Partnership. The rule is that want of consent may be proved by circumstantial evidence if the owner is dead, and where the property was alleged to belong to owners who were partners and one of them had since died, and the evidence showed circumstantially the want of consent of said deceased owner, the same was sufficient under a proper charge of the court.
84 Tex. Crim. 97Vann v. State (1918)
1. —Procuring—Sufficiency of the Evidence—Conflict of Testimony. Where, upon trial of procuring, under article 498, P. C., the evidence was sufficient, although conflicting, there was no reversible error. 2. —Same—Bill of Exceptions—Rule Stated. The legal presumption is that the ruling of the trial court was correct, unless the bill of exceptions shows otherwise. 3. —Same—Bill of Exceptions—Rule Stated. A bill of exceptions should be made so full and certain in its statements as that, in and of itself it will disclose all that is necessary to manifest the supposed error; and where the bills of exception were wholly insufficient under the authorities to authorize or require their consideration, there was no reversible error; besides, if they could be considered, in the light of the whole record, none of them present reversible error. .4,—Same—Date of Offense—Limitation. Where the time proved as to the date of offense was prior to the finding of the indictment, but within the period of limitation, although it was not the date alleged in the. indictment, there was no reversible error in admitting such proof. 5. —Same—Evidence—Bill of Exceptions. If the coui’t could look to the statement of facts it would find that it contained the testimony in question substantially as appellant claimed the witness would testify; besides, the bill of exceptions was defective. 6. —Same—Bill of Exceptions. Where it could not be discovered from the bill of exceptions whether any of the defendant’s objections were well taken, the same could not be considered on appeal. 7. —Same—Evidence—Cross-examination—Bill of Exceptions. If the court could look to the statement of facts it would show a proper cross-examination of the witness; besides, the bill of exceptions was defective. Following McGrath v. State, 35 Texas Crim. Rep., 413, and other cases.
84 Tex. Crim. 100Morris v. State (1918)
The opinion states the case.
84 Tex. Crim. 109Mann v. State (1918)
The opinion states the case.
84 Tex. Crim. 112Lloyd v. State (1918)
Rape—Evidence—Other Transactions—Acts of Lascivious Familiarity. Where, upon trial of rape upon a female under the age of consent, the proof was. abundant that the girl was under fifteen years of age; that she was not the wife of said defendant, and that he had had sexual intercourse with her, and there was no denial of these facts or rebutting evidence, testimony of other lascivious conduct and familiarity between the parties was inadmissible, and could have been used by the jury for no other purpose than to inflame their minds against the defendant, and the same was reversible error. Distinguishing Battles v. State, 63 Texas Crim. Rep., 147. Prendergast, Judge, dissenting.
84 Tex. Crim. 115Watson v. State (1918)
The opinion states the case.
84 Tex. Crim. 131Ex Parte Williams (1918)
Habeas Corpus—Bail—Statement of Facts—Bill of Exceptions. In the absence of a bill of exceptions, objections in the statement of facts to the introduction of testimony can not be considered, and the evidence supporting the denial of bail, there was no reversible error.
84 Tex. Crim. 131Williams v. State (1918)Affirmed
Appeal from District Court, Austin County; M. O. Jeffrey, Judge. John Williams was convicted of manslaughter, and lie appeals.
84 Tex. Crim. 134Rosalez v. State (1918)
The opinion states the case.
84 Tex. Crim. 136Walker v. State (1918)
1. —Murder—Evidence—Opinion oí Witness. Where, upon trial of murder, a .State’s witness testified that he was an eyewitness to the homicide, and heard what was said and saw what was done between the parties at the time and immediately before the shooting, he should not have been permitted to testify that the reason he did not go back to the house after going away was that he was afraid. Following Dempsey v. State, 27 Texas Crim. App., 269, and other cases. 2. —Same—Evidence—Dying Declaration—Predicate. Where it was not shown by the State that at the time of the making of the declaration of the deceased he was conscious of approaching death; that he believed there was no hope' for him to recover; that it was voluntarily made, and not through the persuasion of any other person or in answer to interrogatories; that he was of sane mind at the time, etc., but it appeared from the evidence that the statement was made too remote from the date of the death of the deceased, etc., the' declaration should not have been admitted. Following Craven v. State, 49 Texas Crim. Rep., 78, and other cases. 3. —Same—Evidence—Bill of Exceptions—Motive. Where the bill of exceptions did not connect up the matter properly,there was no error in excluding testimony as to the declarations of the defendant to the witness that he should go home, etc., and was too indefinite to show motive as the bill presented it. 4. —Same—Evidence—Supporting Testimony—Impeaching Witness. A general statement of the witness to the effect that the statement of the impeached witness sought to be corroborated was about the same as that testified to on the witness stand, is but a conclusion or an opinion of the witness and does not comply with the rule. Following Richmond v. State, 58 Texas Crim. Rep., 435, and other cases. 6.—Same—Argument of Counsel—District Attorney. Where the district attorney stated in his speech to the jury that he once prosecuted a man in another county in which the facts were very similar to the facts in the instant case, and that the jury in that case assessed the death penalty on that trial, the same was reversible error, as he could not have even testified to such facts. Prendergast, Judge, dissenting.
84 Tex. Crim. 142Reimer v. State (1918)
Theft of Cattle—Corpus Delicti—Insufficiency of the Evidence —Fraudulent Intent. Where, upon trial of theft of cattle, the State failed to prove the corpus delicti and a fraudulent intent, the conviction could not he sustained. Following James v. State, 32 Texas Crim. Rep., 509.
84 Tex. Crim. 144Holland v. State (1918)
The opinion states the case.
84 Tex. Crim. 146Wrenn v. State (1918)
The opinion states the case.
84 Tex. Crim. 148Thompson v. State (1918)
1. —Theft—Convict—Pardon—Evidence—Rule Stated—Surprise—Postponement. It seems to be well settled that where a convict witness is offered, and objection is made on that ground, then in order to permit Ms testimony it must be shown, by the production of his pardon, that he has been restored to Ms citizenship; the State could have waived this, but raising the objection, oral statements that the defendant had been pardoned could not be introduced in evidence, and in the absence of the statement of facts, testimony as to an application for postponement or continuance on the ground of surprise can not be considered. 2. —Same—Statement of Pacts—Want of Approval—Charge of Court. Where a so-called statement of facts was not approved by the trial judge it can not be considered on appeal, and in the absence of such statement of facts questions with reference to the charge of the court can not be considered.
84 Tex. Crim. 150Nolan v. State (1918)
Rape—Age of Prosecutrix—Burden of Proof. Upon trial of rape, upon a female under the age of consent, it was necessary to allege and prove that the prosecutrix was under fifteen years of age at the time of the alleged offense, and where this was not shown by the evidence beyond a reasonable doubt, the conviction could not be sustained; especially where this could have been done. Following Lawrence v. State, 32 S. W. Rep., 539.
84 Tex. Crim. 151Green v. State (1918)
Wife Desertion—Insufficiency of the Evidence. Where, upon trial of wife desertion, the evidence was insufficient to show a wilful desertion, under the statute, the judgment must be reversed and the cause remanded. Following Irving v. State, 73 Texas Crim. Rep., 615, and other cases.
84 Tex. Crim. 154Holland v. State (1918)
The opinion states the case.
84 Tex. Crim. 157Leroy v. State (1918)
The opinion states the case.
84 Tex. Crim. 157Patterson v. State (1918)
Receiving Stolen Property—Indictment—Amendment. Where, upon trial of receiving and concealing stolen property, the indictment charged the venue of the offense in Erath County it was reversible error to permit the district attorney to amend the indictment by striking out Erath and inserting therein Palo Pinto, thus charging the offense to have been committed in the latter county; even in a matter of form the amendment generally must be made before the trial begins, but no matter of substance can be amended.
84 Tex. Crim. 159Tolbert v. State (1918)
Theft—Sufficiency of the Indictment. Where, upon trial of theft, the indictment alleged in describing the property that the same was one bale of seed cotton of the value of $100, the same was sufficient. Following Bell v. State, recently decided.
84 Tex. Crim. 159Bennett v. State (1918)
Vagrancy—Corporation Court—Insufficiency of the Evidence. Where, upon trial of vagrancy, in the Corporation Court of the city of" Texarkana, the evidence was wholly insufficient to authorize the conviction, the; judgment must be reversed and the cause remanded.
84 Tex. Crim. 160Bell v. State (1918)
The opinion states the case.
84 Tex. Crim. 161Kimball v. State (1918)
Theft—Automobile—Practice on Appeal—Plea of Guilty. In the absence of a bill of exceptions and a statement of facts, the ground' in the motion for a new trial that the verdict was contrary to law and the evidence can not be considered, it appearing from the record that the defendant was properly admonished of the consequences of his plea of guilty, there was no reversible error.
84 Tex. Crim. 162Green v. State (1918)
1. —Theft of Hog—Sufficiency of the Evidence, Where, upon trial of theft of a hog, the evidence sustained the- conviction, there was no reversible error. 2. —Same—Requested Charges—Time of Presenting. Where the bills of exception did not show when the requested charges and defendant’s objections to the court’s charge were made, or the reasons why they should have been given, they can not be considered on appeal; besides, there was no error in refusing them. 3. —Same—Misconduct of Jury—Motion for New Trial—Statement of Facts. Where the appellant in his motion for new trial alleged misconduct of the jury, but no statement of the evidence on said motion was properly approved, or .filed during term time the same could not be considered on appeal. Following Reyes v. State, 81 Texas Crim. Rep., 588, 196 S. W. Rep., 532.
84 Tex. Crim. 163Crockett v. State (1918)
The opinion states the case.
84 Tex. Crim. 164Porter v. State (1918)
1. —Local Option—Intoxicating Liquors—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence was sufficient to sustain a conviction, there was no reversible error. 2. —Same—Continuance—Diligence, Want of. Where the application for continuance showed a want of diligence, and the absent testimony was of an impeaching character, there was no error in overruling the same. 3. —Same—Date of Offense—Sufficiency of the Evidence—Bill of Exceptions. Where the court properly limited the offense to a certain date alleged in the indictment, there was no reversible error; besides, the bill of exceptions was defective. Following James v. State, 63 Texas Crim. Rep., 75. 4. —Same—Motion for New Trial—Misconduct of Jury. Where, upon motion for new trial, for the misconduct of the jury, the court heard evidence and overruled the motion, there was no reversible error.
84 Tex. Crim. 166Vaughn v. State (1918)
The opinion states the case.
84 Tex. Crim. 168Miller v. State (1918)
1. —Assault to Rape—Attempt to Rape—Charge of Court. Where the indictment charged assault with intent to commit rape this would not sustain a conviction for an attempt to rape, and it is error to submit a charge on an attempt to rape; however, these issues passed out of the case, defendant having been found guilty of an aggravated assault. 2. —Same—Aggravated Assault—Attempt to Rape. Where an assault is made a conviction can not be had for an attempt to rape, but if an assault was made, the jury might be instructed to convict of an aggravated assault, even where the court submitted the charge on an attempt to rape, and in the absence of a statement of facts it must be presumed that the court properly submitted the issue of an aggravated assault.
84 Tex. Crim. 169Teague v. State (1918)
Murder—Negligent Homicide—Aggravated Assault—Simple Assault— . Charge of Court. Where, upon trial of murder and a conviction for negligent homicide of the first degree, the evidence showed an assault by shooting at the party injured to frighten him, but with no intention of killing him, the court should have instructed on simple assault and not upon negligent homicide, and he should have also charged under the facts on aggravated assault, and also in the defense of property, and a conviction for negligent homicide of the first degree is not sanctioned by the testimony.
84 Tex. Crim. 172Brady v. State (1918)
Murder—Death Penalty—Practice on Appeal. In the absence of a statement of facts, the insufficiency of the evidence and the charge of the court can not be considered on appeal; besides, there are no bills of exception accompanying the record, and the judgment assessing the death penalty must be affirmed.
84 Tex. Crim. 173Barlow v. State (1918)
The opinion states the case.
84 Tex. Crim. 177Parsons v. State (1918)
Burglary—Charge of Court—Standpoint of Defendant. Where, upon trial of burglary, the defendant claimed consent of the alleged owner to enter said house and get the alleged property, the case must be looked at from the defendant’s standpoint and not from the standpoint of the jury, and although defendant may not have had specific permission to enter the house, yet if he believed he had such authority and acted upon it, he would not be guilty, and the court should have so instructed the jury, and a refusal to do so is reversible error.
84 Tex. Crim. 179Young v. State (1918)
The opinion states the case.
84 Tex. Crim. 181Jackson v. State (1918)
Burglary—Motion for New Trial—Practice on Appeal. Where the grounds in the motion for new trial are not verified by bills of exception they can not be considered on appeal, in the absence of the statement of facts, and the defendant having pleaded guilty, under a proper warning of the court, the judgment is affirmed.
84 Tex. Crim. 182Mansfield v. State (1918)
1. —Selling Intoxicating Liquors Without License—Newly Discovered Evidence. Where it was not made to appear in defendant’s motion for neW trial that the evidence was newly discovered and was unknown to the defendant before the trial, and would have produced a different result, there was no error in overruling the motion. 2. —Same—Accomplice—Charge of Court. The contention that the State’s testimony was given by accomplices was untenable; besides, there was no complaint of the failure of the court to charge thereon, and there was corroboration, and there was no reversible error.
84 Tex. Crim. 184Perez v. State (1918)
1. —Gaining—Evidence—Bill of Exceptions. Where the relevancy of the question addressed to the witness in relation to the case is not made apparent by the bill of exceptions) and it, furthermore, appeared from the record that the witness was fully examined, there was no reversible error. 2. —Same—Assignments of Error—Bill of Exceptions. Where the matters complained of should be brought up to this court by bill of exceptions, duly verified, documents in the record denominated assignments of error can not be considered on appeal.
84 Tex. Crim. 185Alexander v. State (1918)
The opinion states the case.
84 Tex. Crim. 187Wood v. State (1918)
The opinion states the case.
84 Tex. Crim. 192Isaac v. State (1918)
The opinion states the case.
84 Tex. Crim. 193Skelton v. State (1918)
The opinion states the case.
84 Tex. Crim. 194Kissinger v. State (1918)
The opinion states the case.
84 Tex. Crim. 195Villafranco v. State (1918)
The opinion states the case.
84 Tex. Crim. 197Bell v. State (1918)
The opinion states the case.
84 Tex. Crim. 201Marshall v. State (1918)
The opinion states the case.
84 Tex. Crim. 204Ex Parte Heidingsfelder (1918)
From Harris County. Original habeas corpus proceeding asking release from arrest under a judgment óf a contempt of court, assessing a fine of one hundred dollars.
84 Tex. Crim. 208Alsup v. State (1918)
The opinion states the case.
84 Tex. Crim. 210Boattenhamer v. State (1918)
The opinion states the case.
84 Tex. Crim. 212Canales v. State (1918)
Local Option—Circumstantial Evidence—Charge of Court. Where, upon appeal of a violation of the local option law, the conviction was based on circumstantial evidence alone, the court’s failure to submit a charge thereon as requested was reversible error.
84 Tex. Crim. 214Vastine v. State (1918)
Assault to Murder—Statement of Facts—Bills of Exception. Where the failure to file a statement of facts and bills of exception was not shown to have been without fault or want of diligence of appellant and his counsel, and did not come within the rule to require reversal, the judgment must be affirmed.
84 Tex. Crim. 216Campos v. State (1918)
The opinion states the case.
84 Tex. Crim. 219Nelson v. State (1918)
1. —Murder—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence raised the issue of manslaughter, and the court’s charge failed to submit the same over the objections of the defendant, the same was reversible error. 2. —Same—Buie Stated—Adequate Cause. The rule is that if there is evidence which supports the theory of adequate cause, and that the killing was on account of passion arising therefrom, the court is not the judge of its possible truth, but should leave it to the jury; although the evidence in the instant case supported a conviction of murder. 3. —Same—Charge of Court—Degrees of Murder. Since the Act of the Legislature of 1913, eliminating the degrees of murder, the court should not charge thereon. 4. —Same—Common. Law Marriage—Husband and Wife—Charge of Court. Where the evidence was insufficient to show that defendant and deceased were husband and wife under a common law marriage there was no error in failing to submit a charge thereon. Besides, this was immaterial in the instant case. Following Melton v. State, 71 Texas Crim. Rep., 130, and other cases. 5. —Same—Bill of Exceptions. Where the bill of exceptions to the exclusion of testimony was so qualified as to make the testimony admissible, there was no error.
84 Tex. Crim. 221Crouch v. State (1918)
The opinion states the case.
84 Tex. Crim. 225Reum v. State (1918)
The opinion states the case.
84 Tex. Crim. 227Schwimmer v. State (1918)
The opinion states the case.
84 Tex. Crim. 228Collins v. State (1918)
of Automobile—Jury and Jury Law—Challenge for Cause, here, unon trial of theft of an automobile, two of the jurors answered heir voir dire that they had an opinion as to the guilt or innocence of endant, and the record shows that the jurors had each been talked the case by the prosecuting witness, whose property was alleged to n stolen, and there was no suggestion that they reached their conelusions from any other source, the cause for challenge should have been sustained, and it appearing from the record that defendant exhausted his peremptory challenges and that objectionable jurors were forced upon him, the same was reversible error. Following Quinn v. State, 51 Texas Crim. Rep., 155, and other cases.
84 Tex. Crim. 231Aeby v. State (1918)
The opinion states the case.
84 Tex. Crim. 232Young v. State (1918)
L—Burglary—Indictment—Sufficiency of Pleading. In an indictment for burglary, other than the burglary of a private residence at night, if it alleges that the accused did break and enter, it need not be alleged whether the entry was in the daytime or at night, and where the instant indictment alleged that defendant did then and there unlawfully in the daytime and at night; by force, threats, and fraud, break and enter the house, etc., without the consent, etc., of the owner and with the intent, etc., to steal, the same was sufficient. Following Carr v. State, 19 Texas Crim. App., 635, and other cases. 2. —Same—Severance—Bes Judicata—Practice in District Court. The granting of a severance at a previous term of the court is not res judicata of the question of a severance between different defendants at the next term of the court, and where defendant did not make a motion for severance he could not rely on his motion made at the previous term; besides, the granting of a severance would have resulted in a continuance. Following Millner v. State, 72 Texas Crim. Rep., 45, and other cases. 3, —Same—Continuance—Statement of Facts. In the absence of a statement of facts the overruling of a motion for continuance can not be considered where said motion was contested.
84 Tex. Crim. 236Lowe v. State (1918)
The opinion states the case.
84 Tex. Crim. 241Railey v. State (1918)
Theft—Charge of Court—Sufficiency of the Evidence. In the absence of a statement of facts, exceptions to the charge of the court and grounds of the motion for new trial, both in refusing requested instructions and in passing on the sufficiency of the evidence, can not be considered on appeal.
84 Tex. Crim. 242Jennings v. State (1918)
Occupation—Intoxicating Liquors—Sufficiency of the Evidence. Where, upon appeal from a conviction of pursuing the occupation of selling intoxicating liquors in local option territory, the evidence sustained the conviction, there was no reversible error.
84 Tex. Crim. 243Johnson v. State (1918)
The opinion states the case.
84 Tex. Crim. 244James v. State (1918)
The opinion states the case.
84 Tex. Crim. 245Russell v. State (1918)
The opinion states the case.
84 Tex. Crim. 252Liggon v. State (1918)
Murder—Practice on Appeal. Where, upon appeal from a conviction of murder, assessing lifetime imprisonment in the penitentiary, the record was without statement of facts or bills of exception, the judgment below must be affirmed.
84 Tex. Crim. 253Howard v. State (1918)
Occupation—Intoxicating Liquors—Statement of Facts—Bills of Exception. Where the statement of facts and the bills of exception were not filed Within time, they can not be considered on appeal, and the judgment must be affirmed.
84 Tex. Crim. 253Abogado v. State (1918)
Theft—Statement of Facts—Bills of Exception. In the absence of a duly approved statement of facts, or bills of exception, the judgment must be affirmed.
84 Tex. Crim. 254Stephenson v. State (1918)
Local Option—Recognizance—Appeal Bond—Misdemeanor. Where, upon appeal from a conviction of a misdemeanor, appellant failed to enter into a recognizance during term time, but after adjournment of court filed an appeal bond, the appeal must be dismissed for want of jurisdiction.
84 Tex. Crim. 255Williams v. State (1918)
Motor Vehicle—Recognizance—Appeal Bond—Jurisdiction. Where appellant failed to enter into a- recognizance and filed an appeal bond after adjournment, in a misdemeanor case, the appeal will be dismissed for want of jurisdiction.
84 Tex. Crim. 256Moore v. State (1918)
The opinion states the case.
84 Tex. Crim. 259McClendon v. State (1918)
1. —Murder—Continuance—Motion for New Trial—Practice on Appeal. A statement of facts of the evidence given on motion for new trial, because of the overruling of a motion for continuance, must be filed in term time, in order to enable this court to consider it; besides, there was no error in overruling the motion. Following Reyes v. State, 81 Texas Crim. Rep., 588. 2. —Same—Evidence—Bills of Exception—Practice on Appeal. Where the bills of exception to the refusal of admitting certain testimony did not comply with the well established rules in the preparation of such bills,, they can not be considered on appeal. Following Best v. State, 72 Texas Crim. Rep., 201, and other cases. Besides, there was no error if the bills were considered. Following Clayton v. State, 67 Texas Crim. Rep., 311, and other cases.
84 Tex. Crim. 261Martinez v. State (1918)
Local Option—Statement of Facts—Fractice on Appeal. In the absence of a statement of facts and bills of exception, the suggestion that the judgment is contrary to "law and the evidence, can not be considered; however, the statement of facts, having been left out of the record "by inadvertence and was afterwards supplied, it is now here considered, and while the evidence was somewhat contradictory, it is, nevertheless, sufficient to sustain the conviction, and the judgment is affirmed and the motion for rehearing is overruled.
84 Tex. Crim. 262Ray v. State (1918)
The opinion states the case.
84 Tex. Crim. 263Bashara v. State (1918)
1. —Local Option—Indictment—Motion in Arrest of Judgment. Where, upon trial of a violation of the local option law, the indictment was sufficient, there was no error in overruling a motion in arrest of judgment. 2. —Same—V enue—Presumption. Article 938, C. C. P., requires that this court shall presume that the venue was proved in the court below, unless this was made an issue in the trial reserved by bill of exceptions; besides, the proof shows that the sale was made in the City of Waco, which the court judicially knows is in McLennan County. 3. —Same—Sale—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence was sufficient to sustain the conviction, the sickness of the purchaser of the liquor was no defense. Distinguishing Waldstein v. State, 29 Texas Crim. App., 82. 4. —Same—Whisky—Intoxicating Liquor. Where, upon trial of a violation of the local option law, the evidence showed that the liquor sold was whisky, this is sufficient to show that it was an intoxicant. 5. —Same—Bill of Exceptions—Practice on Appeal. In the absence of bills of exception other matters in the motion for new trial can not be considered on appeal, and the evidence being sufficient to sustain the conviction, the judgment is affirmed. 6. —Same—Words and Phrases—Vote—Election—Contest. Article 5721, Revised Civil Statutes, directs that the court shall immediately make an order declaring the result of said vote, and there is no dis- - tinction or difference between declaring the result of said election and declaring the result of said vote, and the use of these words, one for the other, is wholly immaterial; besides, there was no contest of the election. 7. —Same—Definition of Offense—Indictment. It is not necessary to allege that the sale of intoxicating liquors was made for the purpose of evading the law.
84 Tex. Crim. 267Turner v. State (1918)
The opinion states the case.
84 Tex. Crim. 269Chester v. State (1918)
The opinion states the case.
84 Tex. Crim. 271Castleberry v. State (1918)
The State’s testimony shows that there occurred a prior wordy altercation between the parties and others, near a little church where the people had collected to attend Sunday school; that deceased and his brother rode away, but afterwards returned and that deceased spoke to the defendant and offered his right hand, holding his hat in his left hand; that the defendant refused to shake hands with deceased and that thereupon deceased shook hands with the uncle of the defendant,…
84 Tex. Crim. 278Shipley v. State (1918)
1. —Local Option—Information—Motion to Quash—Date of Election. Where, upon trial of a violation of the local option law, the information did not allege at what time the election for local option was held, whether before or after the law punishing the sale of liquor was made a felony, a motion to quash after the trial of the case comes too late, as the omission of srich date is a formal matter. Following Hamilton v. State, 65 Texas Crim. Rep., 508. 2. —Same—Controverted Issue—Oral Motion—Practice on Appeal. Where appellant contended that he made an oral motion before trial to quash the information, with the understanding that it should be reduced to Writing and filed later, but the State controverted this matter and the trial judge and officers of the court sustained the opposite of appellant’s contention, this court, without a further showing, must be governed by the record, and there being no other question, the judgment is affirmed.
84 Tex. Crim. 279Falcone v. State (1918)
The opinion states the case.
84 Tex. Crim. 280Stone v. State (1918)
1. —Local Option—Misdemeanor—County Court—Jurisdiction. Where, upon trial of a violation of the local option law, in the County Court under the misdemeanor laws of the statute, upon an indictment trans-. ferred from the District Court, there was no objection to the jurisdiction of. the County Court before trial it is too late to object thereto after trial, and in the absence of a statement of facts the judgment is affirmed. Following Garner v. State, 62 Texas Crim. Rep., 525, dnd other cases. 2. —Same—Date of Election—Motion in Arrest of Judgment. A motion in arrest of judgment for failure to .allege date of election comes too late after trial. Following Garner, 62 Texas Crim. Rep., 525.
84 Tex. Crim. 281Yancey v. State (1918)
The opinion states the case.
84 Tex. Crim. 282Davis v. State (1918)
Murder—Sufficiency of the Evidence—Charge of Court. Where, upon trial of murder and a conviction of said offense, the evidence was sufficient to sustain the same under a proper charge of the court, there was no reversible error, and the court properly refused defendant’s requested charges, which were not applicable to the facts.
84 Tex. Crim. 285Bird v. State (1918)
1.—Local Option—Indictment—Spelling. Where, upon trial of a violation of the local option law, the defendant complained in a motion in arrest of judgment of the omission of the letter “i” in the middle of the word “intoxicating” the same was correctly overruled; besides, the omission of said letter was completely supplied in other parts of the indictment. Following Barrett v. State, 9 Texas Crim. App., 33, and other cases. 3.—Same—Evidence—Bills of Exception. Upon trial of a violation of the local option law, it was wholly immaterial how much family defendant had, or whether he made any money out of the sale of the liquor; besides, the bills of exception were defective. 3.—Same—Charge of Court—Sale—Ownership. The court correctly charged that it was immaterial who the real owner of the liquor was, and gave a correct charge as to what constituted a sale.
84 Tex. Crim. 288Ex Parte Meyer (1918)
From Bexar County. Original habeas corpus proceeding, asking release from arrest under a warrant for a violation of selling intoxicating liquors, under section 2, ' Act of the Thirty-fifth Legislature, known as the State-wide prohibition law. The opinion states the case.
84 Tex. Crim. 329Wallace and Henry v. State (1918)
The opinion states the case.
84 Tex. Crim. 330Thomas v. State (1918)
The State’s testimony shows that the parties had been playing cards and that defendant shot and killed deceased. The defendant’s testimony shows that the deceased would not give up the money which defendant had won in a game of cards, and that defendant then reached for his pistol and demanded the money, a quarrel ensued and that he then shot deceased in self-defense.
84 Tex. Crim. 332Tucker v. State (1918)
The opinion states the case.
84 Tex. Crim. 333Carter v. State (1918)
Assault to Murder—Aggravated Assault—Sufficiency of the Evidence. Where, upon trial of assault to murder, the evidence showed that the distance between the parties varied from ten to thirty steps, and that the weapon used was a shotgun loaded with small shot, there was no reversible error, and the evidence was sufficient to sustain the conviction of assault to murder.
84 Tex. Crim. 334Pierce v. State (1918)
The opinion states the case.
84 Tex. Crim. 335Reed v. State (1918)
1. —Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of the local option law, the evidence1 was. sufficient to sustain the conviction, there was no reversible error. ' 2. —Same—Local Option—License—Statutes Construed. Article 612, P. C., did not repeal local option, but simply applied to obtaining license for selling liquor in non-local option territory; besides, the Legislature has no authority to repeal the punishment in local option territory where it has been voted upon by the people. Following Lewis v. State, 58 Texas Crim. Rep., 351. Prendergast, Judge, dissenting as to latter proposition.
84 Tex. Crim. 337Grayson v. State (1918)
Aggravated Assault—Statement of Facts—Practice on Appeal—Rule Stated. In misdemeanor cases the statement of facts must be copied in - the transcript and not sent to this court in a separate paper as in felony eases; besides, the so-called statement of facts was neither filed nor approved as required by law.
84 Tex. Crim. 338Grace v. State (1918)
The opinion states the case.
84 Tex. Crim. 343Bryant v. State (1918)
The opinion states the case.
84 Tex. Crim. 345Harper v. State (1918)
The opinion states the case.
84 Tex. Crim. 347Mathis v. State (1918)
Simple Assault—Charge of Court—Sufficiency of the Evidence. Where appellant was charged with «aggravated assault, but convicted of simple assault, and the evidence was sufficient to sustain the conviction under a proper charge of the court, there was no reversible error.
84 Tex. Crim. 349Hays v. State (1918)
The opinion states the case.
84 Tex. Crim. 352Wright v. State (1918)
1. —Murder—Manslaughter—Charge of Court. Where, upon trial of murder, the court submitted both that offense and manslaughter, and the evidence was not such -to establish as a matter of law that adequate cause existed, etc., and sufficient evidence to sustain the conviction for murder, there was no reversible error. 2. —Same—Misconduct of Jury. Tile reference of the jury In their deliberations to the fact that the defendant, during the trial, dozed off to sleep and nodded several times, does not require a new trial, as the jury was not inhibited from doing so; moreover, evidence was heard on this matter and the motion for new trial overruled. 3. —Same—Indeterminate Sentence Law—Reform of Sentence. Where the sentence failed to apply the indeterminate sentence law, the judgment of the lower court is hereby reformed, hollowing Cisneros v. State, 76 Texas Crim. Rep., 313, 174 S. W. Rep., 608.
84 Tex. Crim. 354Venable v. State (1918)
Be it remembered that on the trial of the above entitled and numbered cause, and after the selection and empaneling of the jury, the reading of the indictment, and the entering of the defendant’s pleas of not guilty, and after the witness Ola Fincher, the prosecutrix herein, had been by the State placed upon the witness stand, and after she had been examined as to an automobile ride, she, the defendant, one Irene Tucker, and one Vou Rosenberg, had taken on the night of the…
84 Tex. Crim. 390Clark v. State (1918)
1. —Concealing Stolen Property—Confessions—Arrest. Where, upon trial of concealing stolen property, the State relied upon circumstantial evidence, a part of which consisted of verbal statements made by defendant while he was under arrest unwarned, and were such as the State was inhibited from using by the terms of the statute, article 810, C. C. P., the same was reversible error. 2. —Same—Buies Stated—Arrest—Confession. If by the acts and conduct of an officer having the party in charge he is led to believe he is under arrest, or in his own mind conscious of being under arrest, then the confessions, not coming within any of the exceptions named or implied in the statute, are not admissible. Following Patrick v. State, 45 Texas Crim. Rep., 587, 74 S. W. Rep., 550, and other cases. 3. —Same—Case Stated—Confession. Where the State introduced proof of defendant’s statement, after he was taken to the sheriff’s office, and while he was in company with the officer during the search of his room and place of business, and then introduced evidence to show that the statements thus proved to have been made by defendant were false, and they being contradictory of the.defense urged upon the trial, were used against him by the State to prove his guilt, the same was reversible error. Following Dover v. State, 81 Texas Crim. Rep., 545. 4. —Same—Confessions—Inculpatory Pacts—Arrest—Buies Stated. A confession or admission of an inculpatory fact by defendant, where he is under arrest and unwarned, can not be used as evidence against him. Following Bailey v. State, 40 Texas Crim. Rep., 150, and other cases. Prendergast, Judge, dissenting.
84 Tex. Crim. 393Rasberry v. State (1918)
The opinion states the case.
84 Tex. Crim. 395Knight v. State (1918)
The opinion states the case.
84 Tex. Crim. 398Melton v. State (1918)
1.—Perjury—Accomplice—Charge of Court. Where, upon trial of perjury, the State relied on the evidence of two witnesses whom the jury might have concluded entered into a conspiracy to commit perjury, the court’s charge that before they could convict they must find, if one of the witnesses was an accomplice' and the other not, that the false statement was corroborated by one credible witness and strongly corroborated by other evidence, when there was no corroborative evidence, the same was reversible error. 3.—Same—Statute Construed—Rules Stated—Corroboration. In perjury the statute has been construed to differ from the general statute requiring corroboration of an accomplice’s testimony, and there must be either two credible witnesses or evidence equivalent thereto, and an accomplice is not a credible witness in this sense. Following Grady v. State, 49 Texas Crim. Rep., 3, and other cases. 3. —Same—Practice on Appeal. Where matters presented in the bills of exception are not such as would likely occur again they need not be discussed on appeal. 4. —Same—Presentation of Indictment. The bill .of exceptions relating to the manner in which the indictment is presented is without merit; besides, the minutes of the court could have been corrected.
84 Tex. Crim. 400Johnson v. State (1919)
1. —Burglary—Accomplice—Corroborating Testimony—Rule Stated. Where, upon trial of burglary, the corroborating testimony did not establish facts material and relevant which would authorize the jury to credit the testimony of the accomplice against the defendant, the conviction could not be sustained. 2. —Same—Identity of Property Stolen. ' Where, upon trial of burglary, the identity of the stolen property was sufficiently established by circumstantial evidence, there was no error on that ground. However, the evidence was insufficient as to possession and other matters. ■
84 Tex. Crim. 402Funk v. State (1919)
1. —Murder—Jurisdiction—Soldier.' Where defendant was charged with murder in May, 1917, and at his trial during the same year interposed a plea to the jurisdiction of the District Court of Bexar County, on the ground that he was a soldier in the United States Army at the time of the alleged offense and at the time of the trial, the same was correctly overruled. 2. —Same—Buie Stated—United States Soldier—Statutes Construed—Jurisdiction. A soldier of the United States who murders a citizen of a State offends against both the military and State laws and is amenable to both, and where in the instant case the military authorities had not asserted any prior right to try the defendant by court-martial, or urged any objection, the choice of the court by which he is to be- tried was not given to the defendant, and the court correctly overruled his plea to the jurisdiction of the State court. 3. —Same—Removal from State Court—United States Court. Where defendant was accused of murdering a citizen of this State who was pursuing a civil occupation, and the defendant was not engaged in an enterprise connected with or incident to his duty as a soldier, etc., there was no error in the court in refusing to grant his petition for removal of his case from the State court to the District Court of the United States. 4. —Same—Special Venire—Practice in District Court—Rule Stated. When a special venire has been regularly issued and the veniremen summoned to appear, and the accused served with a copy of the sheriff’s return showing the service, and there was no motion to quash, the court is not authorized to discharge the veniremen without just cause and without the consent of the accused and order a second venire. Following Bates v. State, 19 Texas, 122, and other cases. 5. —Same—Evidence—Hearsay—Harmless Error. Where, upon trial of murder, the court admitted in evidence hearsay testimony, the same was harmless error as the same testimony was given by the defendant. 6. —Same—Evidence—Written Statement—Accomplice—Harmless Error. While the defendant should have been accorded the privilege of inspecting the previous written statements of an alleged accomplice, yet where he had the benefit of them on cross-examination of the witness for the purpose claimed, the error was harmless.. 7. —Same—Evidence—Accomplice — Admission — Conspirator — Fruits of Crime. Upon trial of murder, there' was no error to admit testimony by the officer that he obtained from two participants in the homicide certain information, and acting thereon obtained three pistols and cartridges, which were identified on the trial as having been used in the homicide. Following Henderson v. State, 50 Texas Crim. Rep., 266, and other cases. 8. —Same—Evidence—Absent Witnesses. Upon trial of murder, it was error to admit testimony that certain witnesses had disappeared and that search had been made for them and a subpoena issued for them with the return thereon, there being no facts to show that defendant had been instrumental in causing their disappearance or preventing their attendance. Following Askew v. State, 59 Texas Crim. Rep., 152, 127 S. W. Rep., 1037, and other cases. 9. —Same—Principals—Charge of Court—Alibi—Circumstantial Evidence. Where, upon trial of murder, the court delivered a correct charge on the law of principals as applied to the facts, and also a charge on the law of alibi and circumstantial evidence, there was no reversible error, although the charge on alibi was not required. 10. —Same—Requested Charge—Conspiracy. . Where the requested charge ignored the theory of conspiracy it was correctly refused.
84 Tex. Crim. 412Watkins v. State (1919)
1. —Theft—Embezzlement—Statutes Construed. Where, upon trial of theft, the evidence did not show that the defendant bad the care, management or control of the alleged stolen property, and the question Vas simply whether he took the same fraudulently, the offense was theft and not embezzlement. 2. —Same—Charge of Court—Recent Possession—Explanation. Where, upon trial of theft, the evidence showed that the defendant, before the alleged stolen property was found, denied having it, and after it was found claimed that he bought the same, the court properly submitted a charge on defendant’s explanation of possession of recently stolen property. 3. —Same—Possession—Charge of Court—Temporary Absence. Where, upon trial of theft, the evidence showed that the alleged owner of the stolen property was away from home for the day during which the property was taken, his temporary absence did not change his ownership and control of said property. 4. —Same—Bills of Exception—Practice in District Court. Where defendant complained that his hills of exception had been explained away by the trial court, but no reason was shown why he could not have had an extension of time, if the statement of facts and bills of exception as approved by the court were not satisfactory to him, etc., there was no reversible error. 5. —Same—Argument of Counsel—Requested Charge. Where defendant complained of the argument of State’s counsel and the court gave written instructions not to consider part of them, and refused to •give a charge to disregard other parts thereof because they were in response to the argument of defendant’s counsel, there was no reversible error.
84 Tex. Crim. 418Ice v. State (1919)
1.—Perjury—Indictment. Where, upon appeal from a conviction of perjury, it appeared that the motion to quash the indictment, which was in ail respects good, was correctly overruled by the court below, there was no error. S3.—Same—Charge of Court—Objections to Charge. Where it was evident from the court’s charge as contained in the record and appellant’s objections thereto, that if the charge as originally drawn contained what he objected to, that the court corrected and modified the same, there was no reversible error. 3.—Same—Evidence—Rule Stated—Hearsay Evidence. Testimony is not admissible unless it affects to some appreciable extent the truth of the issue joined, which in the instant case was whether defendant swore falsely before the grand jury in a seduction case that he had been criminally intimate with the alleged prosecutrix, and where the latter testified over the objection of the defendant as to acts and conversations of her alleged seducer, which occurred in defendant’s absence, etc., the same was reversible error. Following Peyton v. State, 32 S. W. Rep., 892.
84 Tex. Crim. 422Lopez v. State (1919)
local Option—Bill of Exceptions—Practice on Appeal. Where, upon appeal from .a conviction of a violation of the local option law, appellant’s bill of exceptions did not show in what connection the excluded testimony came, or why he was seeking to introduce it, and under the court’s qualifications, the testimony was admissible, there was no reversible error.
84 Tex. Crim. 424McDougal v. State (1919)
1. —Murder—Self-defense—Provoking Difficulty—Charge of Court. Where, upon trial of murder, the State’s evidence showed that after a wordy altercation between the parties, and after defendant had used insulting language towards the deceased, the defendant walked rapidly to his wagon, which was nearby, got his gun and pointed it at deceased, had made former threats" to kill deceased, etc., this justified the conclusion by the jury that defendant’s intent in bringing about the claimed assault b.y the deceased was to produce the occasion to kill him, and the court properly charged on the law of provoking the difficulty. 2. —Same—Burden of Proof—Charge of Court—Provoking the Difficulty. Where, upon appeal from a conviction of murder, appellant complained of a certain paragraph of the court’s charge as shifting the burden of proof, yet when this paragraph is considered in connection with the other portion of the charge mentioned, and viewed in the light of the evidence which justified the jury in “concluding that appellant had determined to kill deceased and threatened to do. so a few moments before he fired the fatal shot, and provided himself with a deadly weapon which he used with fatal effect when deceased attacked him, or started to do so, the jury was not misled on the court’s charge on the law of provoking the difficulty. 3. '—Same—Abandonment of Difficulty—Charge of Court. Where, upon trial of murder, the defendant complained of the failure of the court to charge on the law of abandonment of the difficulty, but the record on appeal showed that the court submitted this, issue in defendant’s requested charge, there was no reversible error. 4. —Same—Malice Aforethought—Charge of Court—Definition of Malice. Where, upon trial of murder, defendant objected to the court’s charge on malice aforethought upon the ground that the court erred in failing to define the terms, “will in law justify, excuse or extenuate the homicide,” and, “without just cause or excuse,” but the record showed that the court’s charge was in approved form, and the jury were not without instructions as to what facts, if found true, would in law justify, excuse or extenuate the homicide, there was no reversible error. Following Davis v. State, 204 S. W. Rep., 652, and other cases. Distinguishing Swain v. State, 86 S. W. Rep., 335. 5. —Same—Presumption—Acts of Deceased—Charge of Court—Deadly Weapon. Where, upon trial of murder, the defendant complained of the court’s charge that when a homicide takes place to prevent the infliction of death or some serious bodily injury, if the weapon or means used by deceased, etc., was such as would have calculated to produce death, etc. (provided deceased used any such weapon or means), the .law presumes that he designed to inflict death, etc., because of words in parenthesis indicated to the jury that the deceased was not using- a ’weapon, and also contended in a requested charge to use the term deadly weapon, etc. Held, that under the evidence in the instant, case, there was no reversible error. 6. —Same—Charge of Court—Self-defense—Words Used by Deceased. Where the view advanced by appellant that his rights were invaded by a. certain paragraph of the court’s charge, in that it withdrew from the jury in passing upon self-defense the words used by the deceased and confined appellant’s right to his interpretation of acts of deceased, was not sustained by the record, when read in connection with the remainder of the court’s charge on self-defense, there was no reversible error. 7. —Same—Requested Charge—Character of Deceased—Singling Out Testimony. Where, upon trial of murder, the evidence showed that the defendant was a younger and stronger man than the deceased and was armed with a shotgun, and the court instructed the jury both on self-defense and manslaughter and told them to consider all the facts and circumstances from the defendant’s standpoint, there was no error in refusing the requested instruction to the effect that the evidence of the character of deceased might be considered by them; such a charge would have been objectionable in singling out testimony. Following Salazar v. State, 55 Texas Crim. Rep., 307, 116 S. W. Rep., 819, and other cases.
84 Tex. Crim. 433Davidson v. State (1919)
The opinion states the case.
84 Tex. Crim. 437Standfield v. State (1919)
The opinion states the case.
84 Tex. Crim. 449Beason v. State (1919)
The opinion states the case.
84 Tex. Crim. 455Daggett v. State (1919)
The opinion states the case.
84 Tex. Crim. 459Judge Lynch International Book & Publishing Co. v. State (1919)
The opinion states the case.
84 Tex. Crim. 461Williams v. State (1919)
The opinion states the case.
84 Tex. Crim. 463Ex Parte Hardcastle (1919)
Prom Bexar County. Original habeas corpus proceeding asking for release from arrest by the city health officer charging relator with a communicable venereal disease. . The opinion states the case.
84 Tex. Crim. 466Miller v. State (1919)
Embezzlement—Motion for New Trial—Continuance. Where defendant was convicted of embezzlement of a certain automobile, and in his motion for new trial produced the affidavit of one of the individuals to whom he had rented the car and who had used and returned it, and accounted for his absence at the trial and a failure to apply for a continuance because he could not then give the name or whereabouts of said individual, etc., the court should have granted a new trial under the circumstances of the instant case. Following Dunham v. State, 3 Texas Grim. App., 465, and other cases.
84 Tex. Crim. 468Reagan v. State (1919)
1. —Murder—Evidence—Experiments—Dissimilarity of Conditions. Where, upon trial of murder and a conviction of manslaughter, the. State introduced before the jury several sheets of white cardboard paper, at which the same pistol with the same kind of cartridges used by defendant had been fired by some officers who were witnesses in experimenting, in order to determine the distance at which a pistol fired at paper would cause powder burn, etc., over the objection of the defendant, and the evidence showed that the deceased wore dark clothes and it was not shown that the position of the wound was such that the powder burn would have shown, etc., there was such dissimilarity between the experiment and the facts which rendered the testimony inadmissible. Following Morton v. State, 71 S. W. Rep., 281, and other cases. 2. —Same Provoking Difficulty—Charge of Court. Upon trial of murder and a conviction of manslaughter, the court’s charge on provoking the difficulty should have been made more applicable to the' facts, although correct in the abstract.
84 Tex. Crim. 471Jones v. State (1919)
Murder—Death Penalty—Practice on Appeal—Presumption. Where, upon appeal from a conviction of murder assessing the death penalty, the record contained no hills of exception or any statement of facts, and the trial appeared to have 'been regular, it must be presumed that the evidence justified the conviction.
84 Tex. Crim. 471Roach v. State (1919)
1. —Murder—Charge of Court—Requested Charges. Where the requested charges were embodied in the main charge there was no error in refusing them. 2. —Same—Argument of Counsel. Where the argument, of State’s counsel did not show any abuse of the privilege of argument, there was no reversible error. 3. —Same—Charge of Court—Requested Charges. Where the requested charge did not accurately present the defendant’s theory and was calculated to interpolate matters that did not arise from the -evidence it was correctly refused; the court having correctly submitted in his main charge the issues raised by the evidence. 4. —Same—Evidence—Bills of Exception. Where, upon trial of murder, defendant complained of the refusal of the court to allow him to introduce testimony showing that the relations between him and his wife appeared pleasant, and the bills of exception did not show that the exclusion of this testimony under the circumstances was error, there was no reversible error. 5.—Same—Bills of Exception—Filing. Bills of exception must be filed tty the district clerk or they .will be stricken out on motion by the State.
84 Tex. Crim. 474Johnson v. State (1919)
The opinion states the case.
84 Tex. Crim. 475Winn v. State (1919)
Tried below before the Hon. Joel B. Bond. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.
84 Tex. Crim. 479Cannon v. State (1919)
The opinion states the case.
84 Tex. Crim. 483Vaughn v. State (1919)
The opinion states the case.
84 Tex. Crim. 485Green v. State (1919)
Soliciting—United States Soldier—Practice on Appeal. Where, upon appeal from a conviction of soliciting a soldier for the purpose of illicit intercourse, the record was without a statement of facts or bills of exception, it must be presumed that the evidence was sufficient to sustain the case as charged by the indictment, and there was no reversible error.
84 Tex. Crim. 486Beasley v. State (1919)
The opinion states the case.
84 Tex. Crim. 493Levy v. State (1919)
1.—Vagrancy—Insufficiency of the Evidence. Where the offense of vagrancy was based on the allegation that defendant was a common prostitute and was running a house of prostitution, it was incumbent on the State to show that she was a common prostitute, and sexual intercourse with men on two or three different occasions would not support the conviction. Following Cox v. State, 205 S. W. Rep., 134. 0.—Same—House of Prostitution—Insufficiency of the Evidence. Where the prosecution was based on an allegation that defendant was running a house of prostitution, and the evidence showed that she had ceased to do so at the time the offense was charged, the evidence fails to sustain the allegation, as vagrancy is a present condition or status and not a past condition. Following Cox v. State, supra. 3.—Same—Evidence—General Reputation. Where defendant was charged as a vagrant in that she was a common prostitute and running a house of prostitution, the general reputation of some of her associates, and the general reputation of certain houses in that part of the city was inadmissible. Following Arnold v. State, 28 Texas Crim. App.,. 480, and other eases.
84 Tex. Crim. 496Williams v. State (1919)
The opinion states the case.
84 Tex. Crim. 496Hester v. State (1919)
.Vagrancy—Transcript—Practice on Appeal. In the absence of a complaint, information, or indictment in the record, the judgment of the lower court must be reversed and the cause remanded.
84 Tex. Crim. 497Ex Parte Jones (1919)
The opinion states the case.
84 Tex. Crim. 499Lewis v. State (1919)
1. —Carrying Pistol—City Marshal—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed defendant carried a pistol, his defense that he was a deputy city marshal would not avail him, where he carried the pistol outside the city limits. 2. —Same—Verdict—Practice in County Court. There was no error in permitting the jury, after returning their verdict, to correct the same in open court by inserting the words therein “as charged in the indictment.” 3. —Same—Intent—Defensive Theory—Charge of Court. Upon trial of unlawfully carrying a pistol, there was no error in the court’s refusal to submit a special instruction that if the jury believed that defendant carried the pistol without intent to violate the law to acquit him. Following Johnson v. State, 73 Texas Crim. Rep., 133, 164 S. W. Rep., 833.
84 Tex. Crim. 500Kiernan v. State (1919)
Murder—Insanity—Insufficiency of the Evidence. • Where defendant was convicted of the murder of his son, and the record on appeal showed that the verdict was clearly against the overwhelming weight and preponderance of the evidence, and the defendant was insane at the time of the alleged. offense the judgment is reversed and the cause remanded.
84 Tex. Crim. 503Rutherford v. State (1919)
Assault to Murder—Death of Appellant—Abatement. Where, pending an appeal from a conviction of assault to murder, the appellant died and this was made to appear by affidavit filed with the record, the appeal is abated.
84 Tex. Crim. 504Cannon v. State (1919)
The opinion states the case.
84 Tex. Crim. 509Ice v. State (1919)
1. —Seduction—Continuance—Want of Diligence. Where, upon trial of seduction, the second application for a continuance showed a want of diligence in securing the absent witnesses and justified the conclusion that the alleged testimony was probably not true, there was no error in overruling application for continuance. 2. —Same—Evidence—Other Acts of Sexual Intercourse. Upon trial of seduction, there was no error in admitting evidence of other acts of sexual intercourse to corroborate the prosecutrix in her statement that they were coincident with a renewed promise of marriage at a fixed date within a short time, as these acts came within the settled rule that in this character of case subsequent acts of intercourse are provable. Following Bradshaw v. State, 198 S. W. Rep., 942, and other cases. 3. —Same—Evidence—Corroboration. Upon trial of seduction, there was no error in admitting testimony by the prosecutrix and others that she made dresses in preparation of marriage. 4. —Same—Evidence—Impeaching Own Witness. There was no error in the refusal to permit defendant to lay the predicate for the impeachment of his own witness, where-he simply failed to testify as defendant desired. Following Bennett v. State, 24 Texa Crim. App., 77. 5. —Same—Requested Charges. Where the requested charges upon a reasonable doubt, accomplice, and intercourse with others was contained in the main charge, there w;as no error in refusing them. 6. —Same—Limiting Testimony in Charge of Court. Where the court limited impeaching testimony, as far as the law required it to be done, there was no reversible error. 7. —Same—Charge of Court—Chastity—Promise of Marriage. Where, upon trial of seduction, there was no evidence that the prosecutrix submitted to sexual intercourse with the defendant for other reasons than that of promise of marriage, there was no error in the court’s failure to submit a charge on any other theory. 8. —Same—Evidence—Chastity of Prosecutrix—General Reputation. Where the prosecutrix’s character for chastity was challenged by testimony of acts of intercourse with other parties, there was no error in admitting testimony by the State in support of her character by proof of general reputation. 9. —Same—Evidence—Moral Turpitude. There was no error on cross-examination of defendant’s witness to show by him that he was under indictment for perjury. Following Lights v. State, 21 Texas Crim. App., 313. Distinguishing Bennett v. State, 47 Texas Crim. Rep., 52. 10. —Same—Evidence—Other Acts of Intercourse. Where, upon trial of seduction, there was some confusion as to the date of the first act of intercourse, there was no error in admitting subsequent acts of intercourse as explaining the birth of the child and the date thereof. Following Hinman v. State, 59 Texas Crim. Rep., 29. 11. —Same—Accomplice—Charge of Court. Where, upon trial of seduction, the charge of the court on accomplice testimony conformed to approved precedent, there was no reversible error. Following King v. State, 57 Texas Crim. Rep., 370, and other cases.
84 Tex. Crim. 514Mathis v. State (1919)
1.—Adultery—Witness—Incriminating Testimony. Where, upon trial of adultery, the State introduced in evidence defendant’s own statement given in a prior divorce trial, to which objection was raised by an attorney at law who was not then representing defendant, and it appeared that the defendant as a witness then was uninformed of his right to make the objection, and such testimony incriminated the defendant as to acts of adultery in the instant case, the same was reversible error, as the court should have instructed the witness that he could not be compelled to incriminate himself. 8.—Same—Rule Stated—Incriminating Testimony. When a witness makes known in any language his objection to giving incriminating testimony, the trial court should either desist or further ■ inquire into the cause of his hesitation and inform him in language understood by the witness that he does not have to incriminate himself.
84 Tex. Crim. 517Tonnahill v. State (1919)
The opinion states the case.
84 Tex. Crim. 519Scoggins v. State (1919)
1. —Seduction—Sufficiency of the Evidence. Where, upon trial of seduction, the evidence, although conflicting, was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Witness Under the Rule—Discretion of Court. Where the defendant had invoked the rule, there was no error that the court refused to allow a witness who had been in the court room during the trial to testify to a matter of impeachment. of the prosecutrix; no abuse of discretion being shown. 8.—Same—Evidence—Marrying Prosecutrix. Where, upon trial of seduction, the defendant contended that he had offered in good faith the evening prior to the trial to marry prosecutrix, there was no error in permitting the State on cross-examinatibn of the defendant, to ask him if he was willing to marry the prosecutrix if she should at that time signify her willingness to marry him. 4.—Same—Function of Jury—Practice on Appeal. The jury are made the exclusive judges of the credibility of the witnesses and of the weight of the testimony, and where the evidence is merely conflicting the conviction will not be disturbed.
84 Tex. Crim. 521Wright v. State (1919)
Burglary—Evidence—Hearsay—Declarations of Third Party. Where, upon trial of burglary, the conviction was based upon the declaration of a third party in a conversation with a State’s witness, in the absence of the defendant after his arrest, the conviction could not be sustained.
84 Tex. Crim. 522Nichols v. State (1919)
1.—Carrying Pistol—Statement of Facts. Where the alleged statement of facts is not approved by the trial judge ■it can not be considered on appeal. 8.—Same—J urat—Amendment. Upon trial of unlawfully carrying a pistol, there was no error to permit State’s counsel to orally move in open court for permission to amend the complaint by adding the jurat by the officer before whom the affidavit was made. Following Flournoy v. State, 51 Texas Crim. Rep., 29, and other cases.
84 Tex. Crim. 523Ex Parte Stedham (1919)
Anti-vice Daw—Custody—Practice on Appeal. Where the appellant, pending an appeal on writ of habeas corpus proceeding, was discharged from custody, the appeal must be dismissed.
84 Tex. Crim. 524Williams v. State (1919)
i.—Burglary—Insufficiency of the Evidence—Identity—Accomplice. Where, upon trial of burglary, the conviction was based on property taken in exchange of the alleged stolen property, but the identification of said property taken in exchange was not sufficient to corroborate the accomplice testimony, the conviction could not be sustained. 3.—Same—Case Stated—Identification—Secondary Evidence. Where, upon trial of burglary, certain casings of an automobile" were alleged to have been stolen in the burglary, and an accomplice testified that he and defendant had exchanged these casings for certain automobile tires which were claimed by the State to have been found in possession of defendant, and it appeared that these tires bore certain numbers which were written on the tags attached thereto when sold, but these tags or their loss were not accounted for, nor sufficient evidence was introduced as to the identity of the numbers or tires, the introduction in evidence of certain slips of paper upon which data was made when the alleged tires were taken from the defendant were not the best evidence and inadmissible to identify the said tires, in as much as the State had undertaken to definitely identify them by the fact that the numbers moulded on the tire's coincided with the numbers on the tags which had been taken off of them.
84 Tex. Crim. 527Moore v. State (1919)
1. —Theft—Automobile—Accomplice—Corroboration—Insufficiency of the Evidence. Where, upon trial of theft of an automobile, the State relied for a conviction upon circumstances testified to by an accomplice and by other circumstances tending to corroborate and connect the defendant with the offense, and also upon the possession of one of the tires of the automobile and its identification, but such identification was insufficient, the conviction could not be sustained. 2. —Same—Case Stated—Identification—Entry in Book—Predicate. Where, upon theft of an automobile, the conviction depended chiefly upon1 an automobile tire found in defendant’s possession, and to identify this tire, as one that was on the stolen automobile the State introduced the books kept, by the person who sold similar tires, and testified that he kept a record, showing the number of the tires sold and that his entries were made from memoranda made by the various salesmen, but - this was not received by him. direct from the salesman, such testimony was inadmissible on the predicate laid for its introduction. Following Howard v. State, 35 Texas Crim. Rep., 136, and other cases.
84 Tex. Crim. 529Long v. State (1919)
1. —Murder—Adequate Cause—Charge of Court—Manslaughter. Where, upon trial of murder, the evidence raised the issue of manslaughter, and the court in his charge on that offense made no application of the law to the facts of the case, and refused a requested charge thereon which pointed out the failure to specifically and affirmatively charge the law, the same was reversible error. 2. —Same—Rule Stated—Adequate Cause—Charge of Court. If a condition or circumstance made adequate cause by statute is in evidence, the charge of the court should not only inform the jury that the same is adequate cause, but should apply the law to the facts. 3. —Same—Impeaching Testimony—Other Offenses. Proof of other offenses for the purpose of impeaching the defendant should be confined to such as are not too remote, and to those which are felonies, or misdemeanor involving moral turpitude, and the argument of counsel must be confined to the record.
84 Tex. Crim. 531Gill v. State (1919)
The opinion states the case.
84 Tex. Crim. 535Ex Parte Johnson (1919)
The opinion states the case.
84 Tex. Crim. 536Finks v. State (1919)
1. —Murder—Change of Venue—Sufficiency of the Evidence. Where, upon trial of murder,' defendant filed an application for change of venue based upon both grounds of the statute, which was overruled and a venire of 300 men was exhausted on account of developments in the investigation of the jurors on their voir dire and other reasons to their examination, when the motion to change venue was renewed, and the evidence in support thereof showed that there was a prejudgment of the case by practically ninety-five per cent of the jurors of the county, and also a strong combination of influential men, etc., the motion should have been granted and the venue changed. 2. —Same—Evidence—Impeaching Witness. Where, upon trial of murder, defendant’s brother-in-law testified in his behalf only as to facts at the place of the homicide, and the State was thereupon permitted on cross-examination to show that this witness had visited the defendant in jail two or three times, and thereupon was permitted to ask the witness if he did not tell the sheriff and others if they would go to the house of one of the State’s witnesses that they would find the watch of the deceased, etc., all of which the witness denied, -and the State was then permitted to introduce witnesses to contradict witness, the same was inadmissible and reversible error. 3. —Same—Rule Stated—Impeaching Own Witness—Conversations of Third Parties. The rule is well settled that under such circumstances, that having failed to elicit the testimony, the State would be bound by witness’ answers and wonld not be permitted to get before the jury the statements by impeachment; besides, they were conversations between third parties and in no way binding on defendant. Following Ballard v. State, 71 Texas Crim. Rep., 587, 160 S. W. Rep., 718, and other eases. 4. —Same—Evidence—Contradicting Witness—Predicate. Where no predicate was laid to contradict a defendant’s witness with reference to a conversation had with a State’s witness, said last witness should not have been permitted to testify to such conversation. 5. —Same—Conversation—Evidence—Telephone—Charge of Court. Where, upon trial of murder, the State was permitted to ask a defendant’s witness, as well as the defendant, as to a conversation which occurred between them over the telephone, as to improper relations between them, which both denied, the matter should have ended there, and the court should not have charged the jury that they could consider it for the purpose of attacking, the credibility of defendant’s witness. 6. —Same—Evidence—Coercing Witnesses—Alibi—Fabricating Testimony. Upon trial of murder, where defendant had introduced a witness who testified to an alibi of the defendant, he should have been permitted to show that some of the officers whipped her severely, placed her in jail without process, etc, to make her make statements which she said were not true, and to show further the influences brought to bear upon the witnesses who testified against the defendant, to show how they were maltreated by said officers to make them testify to the things that were not true, and to show a conspiracy between the officers and others to secure the conviction of defendant on false testimony. 7. —Same—Evidence—Coercing Witnesses. Upon trial of murder, where two alleged accomplices testified against the defendant, he should have been permitted to show how these accomplices were whipped and maltreated in order to make them testify against the defendant. 8. —Same—Evidence—Alibi—Rebutting Testimony. Where, upon trial of murder, defendant claimed an alibi, and the State thereupon introduced a witness who testified that the defendant could have been at the scene of the homicide, and that it would only take - twenty-five or thirty-five minutes to ride the distance from where' he was seen and the place of the homicide, the defendant should have been permitted to show that it would take two or two and one-half hours to ride this distance. 9. —Same—Principals—Charge of Court. Where, upon trial of murder, the State relied upon the theory that defendant and one of the alleged accomplices killed deceased and that both of them shot at him, and the court’s charge on principals that if the defendant was present, knowing the unlawful intent of his accomplice, aided him or encouraged him by words or gestures in the commission of an unlawful act, etc., defendant would be a principal, etc., was error, as there was no testimony that defendant was a principal in the sense set forth in said charge, and the court’s charge should have conformed to the facts. Following Burges v. State, 33 Texas Crim. Rep., 9, and other cases.
84 Tex. Crim. 544Jarrott v. State (1919)
1. —Local Option—Statement of Facts—Bills of Exception. Where the statement of facts was not approved by the trial judge, and the bills of exception were filed one day too late, the motion to strike out must be sustained. 2. —Same—Indictment—Local Option Law. In the absence of a contest in the election within the time prescribed by the statute, and a finding of the court that the election was illegal, the same can not be questioned thereafter. Besides, a motion to quash without the facts supporting it can not be considered. 3. —Same—Zone Law—Statutes Construed—Repeal. The so-called zone law is a regulatory measure and does not apply to local option territory; besides, the local option law can not be repealed except by the people themselves. ° 4. —Same—Statewide Prohibition. The so-called statewide prohibition law has been held invalid and does not repeal a local option law. Following Ex parte Myer, 207 S. W. Rep., 100.
84 Tex. Crim. 545White v. State (1919)
1.—Local Option-—Bill of Exceptions—Statement of Facts. Where the bills of exception were not filed in time in the lower court, and the statement of facts was not approved by the trial judge, the same must be stricken from the record on motion of the State. Follpwing Taylor v. State, 73 Texas Crim. Rep., 192. 2. —Same—Election—Evidence-—-Practice on Appeal. In the absence of a statement of facts and bill of exceptions the motion to quash the indictment, on the ground that no prohibition election was held in the county of the prosecution, can not be considered on appeal. 3. —Same—Ten-mile Zone Law—Indictment—Local Option—Repeal. A motion to quash the indictment on the ground that the territory in which the sale of intoxicating liquor is alleged to have been made is within the ten-mile zone law on account of a military camp, thereby repealing the local option law, can not be sustained, as said zone law is simply a regulation designating the locality in which the sale of intoxicating liquors can not be made, and precludes its operation in localities in which the sale is prohibited; besides, the local option prohibition law when once adopted can only be repealed by the people at an election. 4. —Same—Indictment—Statewide Prohibition. The contention to quash the indictment because the local option law was repealed by the statewide prohibition law is without merit, as the latter has ■been held invalid. Following Ex parte Myer, 207 S. W. Rep., 100.
84 Tex. Crim. 548Greenwood v. State (1919)
The opinion states the case.
84 Tex. Crim. 552Doherty v. State (1919)
Rape—Insufficiency' of the Evidence—Impeaching Own Witness. Where, upon trial of rape upon a female under the age of consent, the prosecutrix was placed on the stand as a witness in behalf of the State and denied most emphatically .that defendant had ever had sexual intercourse with her, it could be of no service to the State to obtain a conviction to prove a statement made by the prosecutrix to a third party that defendant had intercourse with her, by way of impeachment, and the conviction can not be sustained.
84 Tex. Crim. 554Carrell v. State (1919)
The opinion states the case.
84 Tex. Crim. 564Jacobs v. State (1919)
The opinion states the case.
84 Tex. Crim. 566Johnson v. State (1919)
The opinion states the case.
84 Tex. Crim. 567Johnson v. State (1919)
The opinion states the case.
84 Tex. Crim. 570Ex Parte Nelson (1919)
From Fayette County. Habeas corpus proceeding before this court, asking release from arrest under an indictment of murder on the ground that the Governor had issued his proclamation granting him parole under a conviction of . another indictment of murder. •The opinion states the case.
84 Tex. Crim. 574Albertson v. State (1919)
1. —Swindling—Continuance—Want of Diligence. Where the application for continuance showed a want of diligence in securing the alleged absent witnesses the same was correctly overruled. 2. —Same—Evidence—Variance—Misspelling. Where, upon trial of swindling, the indictment alleged and set out A written mortgage, there was no error in overruling defendant’s objection to the introduction in evidence of said mortgage; on the ground of an alleged variance because the printed portion of said mortgage misspelled the word become. Following Hennessy v. State, 23 Texas Crim. App., 340, and other cases. 3. —Same—Indictment—Ownership of ¡Property. Where the indictment for swindling did not allege that the injured party was induced to part, and that he did part with the title and ownership of the alleged property, the same was insufficient. Following Curtis v. State, 31 Texas Crim. Rep., 39, and other cases. 4. —Same—Indictment—Injured Party—False Pretenses. Where the indictment for swindling failed to allege that the injured party relied in any manner upon the alleged false pretenses, the same was insufficient. Following Johnson v. State, 57 Texas Crim. Rep., 347, and other cases. 5. —Same—Indictment—Pleading. Where the indictment for swindling alleged that the defendant obtained possession of the alleged property by giving a note, but failed to allege that the execution of the alleged false mortgage was an inducement to part with such possession, or that either of them were delivered by defendant to the party injured, or that the latter delivered possession of the property described in the indictment, the same was insufficient.
84 Tex. Crim. 577Evans v. State (1919)
The opinion states the case.
84 Tex. Crim. 579Winfrey v. State (1919)
The opinion states the case.
84 Tex. Crim. 584Patten v. State (1919)
1.—Assault to Murder—Aggravated Assault—Charge of Court. In the absence of a requested instruction or exception taken at the proper time to the failure of the court to submit the law of aggravated assault, upon trial of assault to murder, it will not be considered reversible error and is not of such fundamental nature to require reversal.,. 3.—Same—Newly Discovered Evidence—Amended Affidavits. Where the amended affidavits attached to the motion for new trial alleged that while the witnesses talked with counsel for appellant during the trial, they rather evaded telling him what they knew, as they did not care to antagonize the police force, but did not state what occurred between them and' the counsel, or what the evasion was, if any, and the record is silent as to the defendant’s version as to what occurred between himself and these two witnesses who were not placed on the stand during the trial, there was no error in overruling the motion asking a new trial on the ground of newly discovered evidence. Following White v. State, 76 Texas Crim. Rep., 612, and other cases.
84 Tex. Crim. 586Gardner v. State (1919)
1. —Theft of Goats—Recent Possession—Charge of Court. Where, upon trial of theft of goats, defendant’s possession thereof having been fully and definitely explained by the State, in a manner which showed that he was not present at their taking and took no part in the actual theft, his theft of them could not be inferred from such possession, and the court’s charge on this phase of the case was error. Following Lincoln v. Franks, 102 U. S., 1189. 2. —Same—Accustomed Range—Charge of Court. Where, upon trial of theft of goats, aside from proof of evidence of the habit of goats to stray sometimes from their accustomed range, there was no evidence that the goats in question had strayed from their range, and the charge assuming this to be the fact is error. 3. —Same—Second Taking—Practice on Appeal—Rehearing. Where, upon trial of theft of goats, it was insisted by the State on rehearing that under the evidence two separate and distinct takings of the alleged stolen property were shown, and if the defendant be not guilty under the original taking the facts, nevertheless, showed him to be guilty under a second taking, which would somewhat modify the original opinion but it appeared from the record on appeal that the case was not tried upon this theory, there was no reversible error. 4. —Same—Rule Stated—Second Taking. The rule is that there may be two separate and distinct unlawful takings of property so as to make two separate offenses. Following Taylor v. State, 62 Texas Crim. Rep., 611. But if the State relies upon either of said takings such theory should pertinently be submitted.
84 Tex. Crim. 590Yates v. State (1919)
1. —Adultery—Habitual Intercourse—Information. Where, upon trial of adultery hy habitual carnal intercourse, the complaint and information failed to allege that the same was without living together, the samp was insufficient. Following Cannedy v. State, 58 Texas Crim. Rep., 184, and other cases. 2. —Same—Habitual Intercourse—Kúle Stated. While it has been held that a specific number of instances of carnal intercourse does not constitute habitual intercourse, yet it has also been held that one act of carnal intercourse corroborated by sufficient other facts will justify a conviction. Following Mabry v. State, 54 Texas Crim. Rep., 449. Distinguishing Cordill v. State, 201 S. W. Rep., 181.
84 Tex. Crim. 591Hafley v. State (1919)
The opinion states the case.
84 Tex. Crim. 593Castle v. State (1919)
1. —Assault to Murder—Burden of Proof-—Charge of Court—Self-defense. Where, upon trial of assault with intent to murder, the evidence raised the issue of self-defense, the court in his charge on self-defense should have instructed the jury that the burden of proof was upon the State to establish the facts constituting an unlawful assault beyond a reasonable doubt, and the court’s charge was obnoxious in this respect, and reversible error. Following Stuart v. State, 57 Texas Crim. Rep., 592, and other cases. 2. —Same—Actual Danger—Intent to Kill—Deadly Weapon—Charge of Court. Where, upon trial of assault with intent to murder, the evidence raised the issue of actual danger, the court should have charged on the presumption of the intent to kill from the use of a deadly, weapon by the injured party. Following Hudson v. State, 59 Texas Crim. Rep., 650, and other cases.
84 Tex. Crim. 594McNew v. State (1919)
1. —Burglary—Copy of Indictment—Spelling. Where the copy of the indictment with which defendant was served was a literal copy, except that the word corporeal omitted the letter “e,” there was no reversible error on that ground. Following Johnson v. State, 4 Texas Crim. App., 268, and other eases. 2. —Same—Accomplice—Charge of Court. Where, upon trial of burglary, the court gave a proper charge on accomplice testimony, there was no reversible error. 3. —Same—Continuance—Impeaching Testimony. Where, upon trial of burglary, the defendant sought a continuance, and the record showed that the application was overruled because the absent testimony was of an impeaching character, there was no reversible error. 4. —Same—Argument of Counsel. Where the argument of the district attorney was in response to the argument of the defendant’s attorney, with reference to his appearance and demeanor, there was no reversible error. 5. —Same—Entry—Breaking—Force—Charge of Court. Where the indictment charged that the defendant did then and there unlawfully and by force, threats and fraud break and enter, etc., without alleging whether the same was in the daytime or the night-time, but the testimony showed a night-time burglary, defendant’s theory that the trial court committed error in his charge relating to entry, breaking and force, was untenable, and there was no reversible error. 6. —Same—Evidence—Continuance—Impeaching Testimony. Where defendant’s application for continuance for witnesses by whom he expected to prove that a State’s witness was an accomplice, was as to this defendant hearsay and only admissible for impeachment purposes, there was no error in overruling same. Distinguishing Harrison v. State, 47 Texas Crim. Rep., 393, 83 S. W. Rep., 699; Tull v. State, 55 S. W. Rep., 61.
84 Tex. Crim. 600Drawhorn v. State (1919)
The opinion states the case.
84 Tex. Crim. 602Curlin v. State (1919)Reversed and remanded
1. Assault and Battery ⅞=»54 — Aggravated Assault on an Officer. To constitute an aggravated assault on an officer, it must appear that the person assaulted was an officer in the discharge of his duties, and that the assault was made as an interruption of his official duties. 2. Assault and Battery ⅞=»92 — Aggravated Assault on Officer — Evidence,. Evidence that defendant accosted a justice, while latter was going from the post office to his office with some papers, before going out to show a man some land, and struck him down on receiving an affirmative answer to question whether the justice was going to issue certain papers in his official capacity, held insufficient to show an aggravated assault on an officer in the discharge of his duties.
84 Tex. Crim. 604Crockett v. State (1919)
Local Option—Sufficiency of the Evidence. Where, upon trial of a violation of pursuing the occupation of selling intoxicating liquor in local option territory, the evidence together with defendant’s admissions, was sufficient to sustain the conviction, there was no reversible error.
84 Tex. Crim. 605Turner v. State (1919)
The opinion states the case.
84 Tex. Crim. 606Henton v. State (1919)
1.—Bigamy—Motion for New Trial—Statement of Facts—Practice on Appeal. Where the statement of facts is filed after the expiration of time allowed by the court, when he overruled defendant’s motion for new trial, the same can not be considered on appeal. 8.—Same—Charge of Court—Requested Charges. Where the requested charges are covered by the court’s main charge, there was no error in refusing them. 3.—Same—Indictment—Former Spouse. Where, upon trial of bigamy, the indictment alleged that one Wise Hentott did then and there unlawfully marry Bessie Scott, he, the said Wise Henton, then and there having a lawful former wife then living, towit, Florence Henton, nee Florence Bullock, to whom he had theretofore been lawfully married, the same was sufficient. Following Nicholson v. State, 53 Texas Crim. Rep., 631. Distinguishing Vinsant v. State, 42 Texas Crim. Rep., 413, and other cases.
84 Tex. Crim. 609Lagrone v. State (1919)
The opinion states the case.
84 Tex. Crim. 616Gilbert v. State (1919)
The opinion states the case.
84 Tex. Crim. 619Hopson v. State (1919)
The opinion states the case.
84 Tex. Crim. 621Helms v. State (1919)
Sunday' Law—Complaint—Information—Rule Stated—Words and Phrases. While it is always best and safest, in pleading, to follow the language employed in the statute, yet if words of the same or greater import are used instead of the statutory words, the pleading is good, and the allegation that defendant was a dealer of wares and merchandise, instead of in wares and merchandise, does not invalidate the complaint or information.
84 Tex. Crim. 622Matthews v. State (1919)
1. —Wife Desertion—Sufficiency of the Evidence. Where, upon trial of deserting and failing to support defendant’s wife and three-year-old son, under article 640a, P. 0., the evidence was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Evidence—Harmless Error. Where the evidence admitted was in support of appellant’s defense and was clearly harmless, there was no reversible error. ■
84 Tex. Crim. 623Shipp v. State (1919)
1.—Receiving Stolen Property—Complaint—Information—Name of Party. Where it was shown in the motion in arrest of judgment that the complaint and information will not sustain the conviction, for the reason that it was known before their filing that defendant had received the goods from H. M., and that therefore the allegation that lie received the same from persons unknown was fatal to the complaint and information, and the motion being sustained by proper evidence, the judgment must be reversed and the cause remanded. 2.—Same—Complaint—Marne of Party. Where the complaint failed to allege that defendant received stolen property from anyone, known or unknown, the same was fatally defective. Following Jorasco v. State, 6 Texas Grim. App., 238, and other cases.
84 Tex. Crim. 626Williams v. State (1919)
Í.—Swindling—False Promises—Insufficiency of the Evidence. Where, upon appeal from a conviction of swindling, the evidence in the record showed that the prosecuting witness was relying wholly upon the false promises of defendant and his companion, and their division with him of an unknown amount of money to which none of them had any sort of claim, and the acquisition of which would have constituted the offense of theft, the conviction could not be sustained. 3.—Same—Rule Stated—Swindling—False Promises. The rule of law in Téxas is that mere false promises can not form the basis of the crime of swindling, and it is exceedingly doubtful whether one who parts with his property in actual exchange for property delivered to him which he knows to be stolen and to which he can acquire no title, could under such circumstances be deprived of Ms property in such way as to make the offense swindling.
84 Tex. Crim. 629Haley v. State (1919)
The opinion states the case.
84 Tex. Crim. 635Hammett v. State (1919)
The opinion states the case. The following is a copy of the court’s remarks prior to calling any case for trial: “A defendant is presumed to he innocent until his guilt is established beyond a reasonable doubt. A reasonable doubt is such a doubt as a reasonable man would have after hearing a given state of facts.