Volume 85 — Texas Criminal Reports

<p>The opinion states the case.</p>

<p>Theft—Accomplice—Charge of Court—Sufficiency of the Evidence.</p> <p>Where, upon trial of theft, the State relied upon the testimony of two witnesses who claimed that they were innocent of any criminal intent but were paid by the defendant with some of the alleged stolen property, and it became a question of fact as to whether they were innocent agents or accomplices in the crime, and the court submitted this question to the jury, to which there was no objection, the conviction will not be set aside.</p>

<p>1. —Murder—Evidence—Acts and Declarations of Deceased—Bes Gestas.</p> <p>■ Upon trial of murder and a conviction of manslaughter, there was no error in admitting the testimony of the wife of deceased to the effect that her husband went into his house, laid down on the floor and died in about five miputes, saying, “I think he has killed me.”</p> <p>2. —Same—Evidence—Rebuttal—Harmless Error.</p> <p>Where, upon trial of murder, it appeared from the evidence that the difficulty arose about certain articles which defendant had carried to the house of deceased and which were supposed to have been in the possession of deceased, and much of the defendant’s testimony and his witnesses were directed to the affirmative side of this issue, there was no harmful error in admitting testimony that the pocket-book taken from the deceased immediately after the homicide did not contain such articles.</p> <p>3. —Same—Evidence—Handkerchief—Bill of Exceptions.</p> <p>In the absence of any explanation in the bill of exceptions relating to whom the handkerchief belonged which was picked up near the scene of the difficulty, and in what way it was connected with the case, there was no reversible error.</p> <p>4—Argument of Counsel—Practice in District Court.</p> <p>In the absence of an affirmative objection in open court to the argument of State’s-counsel, and in view of the fact that such argument was not wholly unauthorized, there was no reversible error. Following Weige v. State, 196 S. W. Rep., 524.</p> <p>5.—Same—By-Stander’s Bill—Affidavit.</p> <p>The Statute requires the verification of a bystander’s bill by three bystanders, and where the affidavit was made by only two the same cannot be considered on appeal. Following Osborne v. State, 56 S. W. Rep., 58.</p>

<p>Appeal from Criminal District Court, Cameron County; Walter E. Timón, Judge.</p> <p>Porfirio Gonzales was convicted of receiving and concealing stolen property, and he appeals.</p>

<p>Receiving and Concealing Stolen Property—Charge of Court—Practice on Appeal.</p> <p>In the absence of a statement of facts, matters presented by the motion for new trial cannot be reviewed on appeal, and the judgment must he affirmed.</p>

<p>The opinion states the case.</p>

<p>1.—Negligent Homicide—Accident—Charge of .Court.</p> <p>Where, upon, trial of negligent homicide, growing out of a collision of an automobile and a buggy, the evidence raised the issue of accident or misfortune, the court should have charged the jury on this phase of the law, which would have excused the defendant from liability in the event the jury should have so found from the evidence, and the refusal of a requested charge accurately applying the law of accidental homicide to the facts in the case was reversible error. Following Hamilton v. State, 64 Texas Crim. Rep., 175, and other cases.</p> <p>2.—Same—Evidence—Motive—Cross-Examination.</p> <p>Where the witness for the State has testified to a state of facts showing negligence on the part of the defendant, in. causing the injury, the defendant should have been permitted on cross-examination to show that the witness had brought suit to recover damages resulting to him from the death of his wife from the injuries received in the collision, which suit was pending at the time of the instant trial.</p> <p>3. —Same—Rule Stated—Motive of Witness.</p> <p>The motive which operates upon the mind of the witness when he testified are never regarded as immaterial or collateral matters;' and the defendant is entitled to show animus and prejudice on the part of the State’s witness toward him, and great latitude is allowed when the object is to impeach the witness.</p> <p>4. —Same—Allegation—Proof—Variance.</p> <p>The contention that there was a variance between the allegation and proof is not tenable under the evidence; however the proof must correspond with the material allegations in the indictment. The court does not pass on the sufficiency of the evidence in view of another trial.</p>

<p>Burglary—Accomplice—Charge of Court—Insufficiency of the Evidence—Corroboration.</p> <p>Where, on appeal from a conviction of burglary, the State depended upon the testimony of two witnesses who claimed to be innocent agents of the defendant, but who received part of the stolen property, the court’s failure to charge on accomplice testimony could not be raised for the first time in defendant’s motion for new trial; however, this being a question of fact the conviction could not be sustained unless the testimony of said witnesses was corroborated. But this not being a question of law, there was no reversible error.</p>

<p>1. —Murder—Bill of Exceptions—Practice on Appeal.</p> <p>Where the bills of exception failed to set out any facts pointing out the error in the ruling of the trial court, they cannot be considered on appeal.</p> <p>2. —Same—Insufficiency of the Evidence—Exculpatory Statement.</p> <p>Where, upon trial of murder, the State introduced the written statement of defendant made to the officers after the homicide, and the guilt of the defendant was wholly dependent on the testimony of the State (the defendant not having testified) and this wholly failed to show any guilty connection of the defendant with the shooting, but on the contrary the statement introduced by the State showed that the defendant remonstrated with others who did the shooting, his mere presence when the offense was committed will not make him guilty, and upon the whole the evidence is insufficient to support the conviction.</p>

<p>The opinion states the case.</p>

<p>1. —Wife Desertion—Sufficiency of the Evidence.</p> <p>Where, upon trial of willful desertion of wife and children, the evidence sustained the conviction, there was no reversible error.</p> <p>2. —-Same—Evidence—Moral Turpitude—Adultery.</p> <p>Upon trial of wife and child desertion, there was no error in permitting, on cross-examination of defendant, the State to show that defendant was arrested for adultery, as this was a misdemeanor involving moral turpitude. Following Sexton v. State, 48 Texas Grim. Rep., 497.</p> <p>3.</p> <p>3. —Same—Argument of Counsel.</p> <p>Where the argument of State’s counsel was confined to the facts in the case, there was no reversible error, besides, there was no request for its withdrawal.</p>

<p>1.—Adultery—Insufficiency of the Evidence—Accomplice.</p> <p>Where, upon trial of adultery by unlawfully living together, etc., the facts and circumstances, outside of the testimony of the accomplice, were not sufficient to justify the verdict of the jury in holding that the parties had sexual intercourse, the conviction could not be sustained.</p> <p>2. —Same—Requested Charge—Accomplice—Corroboration.</p> <p>Where, upon trial of adultery, the court charged upon circumstantial evidence and accomplice testimony, but refused to give in addition thereto, a requested charge that in order to convict the defendant the accomplice should be corroborated as to the act of sexual intercourse, the same was reversible error under the facts of the instant case.</p> <p>3. —Same—Rule Stated—Adultery.</p> <p>Where no act of intercourse is shown, proof of mere suspicious circumstances is insufficient. Following Manuel v. State, 45 Texas Grim. Rep., 97, and other cases.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Murder—Age of Defendant—Juvenile Act—Statutes Construed.</p> <p>One who commits a felony while under seventeen years of age, if he is more than seventeen years of age when brought to trial, can properly be tried in the District Court, in the same manner as one who was more than seventeen years of age when the offense was committed.</p> <p>2. —Same—Statutes Construed—Children—Delinquents.</p> <p>The language of the entire Junvenile Act, embraced in title 17, Code of Criminal Procedure of Texas, is that ordinarily used, in speaking of a child and children delinquents.</p> <p>3. —Same—Statutes Construed—Juvenile—Age of Defendant.</p> <p>It could hardly be seriously contended that one who had committed a heinous crime, as for instance murder, while fifteen or sixteen years of age, and who was not apprehended or indicted until he was past twenty-one, would, by reason of such lapse, go absolutely unwhipped of justice, and it is not provided in the statutes that the age when the offense was committed should be set forth in the application provided for in article 1195, C. C. P., or thereafter inquired into.</p> <p>4. —Same—Statutes Construed—Juvenile Act.</p> <p>The plain inference is that if at the time of making the application alleging that the accused is a juvenile, it appears from such hearing that he is not then less than seventeen years of age, the prosecution shall not be dismissed but shall proceed as in other felony cases, so that the inquiry has reference to the age of the accused when brought to trial and not to the time of the commission of the offense.</p> <p>5. —Same—Practice in District Court—Former Appeal.</p> <p>Where, upon former appeal, it was decided that the court below erred in not remanding the defendant for prosecution to the Juvenile Court, and in the meantime defendant became seventeen years of age, the trial court, retaining jurisdiction, proceeded to try him for murder convicting him of such offense, under the usual felony procedure in such cases in the District Court, there was no reversible error, and the action of the lower court in that first trial is not now before this court for revision.</p> <p>6. —Same—Former Trial—Procedure—Practice in District Court.</p> <p>The finding of the District Court that the appellant was under seventeen years of age in a former and different trial than the one from which this appeal is prosecuted, does not ipso facto make-all subsequent proceedings, such as judgment, sentence, etc., absolutely void, and the court properly proceeded to try him for murder he being then more than seventeen years of age.</p> <p>7. —Same—Statutes Construed—Practice in District Court.</p> <p>Had the court below, upon the receipt of the mandate of this court reversing this case upon a former appeal, proceeded by dismissal of the felony charge, and a hearing upon a complaint filed against appellant charging him as a juvenile, the grand jury could have reindicted him for murder as he was clearly then over the age of seventeen, but, the law will not countenance or require the doing of a useless thing, and the court below did rot therefore err in not dismissing the case, retaining jurisdiction to hear and determine the same, and trying and convicting him of murder.</p>

<p>1. —Murder—Co-Defendant—Practice in District Court—Surprise. ■</p> <p>Where appellant complained that he was deprived of the testimony of his witness because he was arrested on an indictment for the same offense while under the rule as the jury were being selected in defendant’s case, but there was no showing in the record that this indictment was found fraudulently or purposely to deprive the appellant of the witness’ testimony, and there was no application for postponement or continuance on the ground of surprise, there was no reversible error. Following Raleigh v. State, 74 Texas Crim. Rep., 484, 168 S. W. Rep., 1050, and other cases.</p> <p>2. —Same—Statement in Original Opinion—Rehearing.</p> <p>Where appellant objected in his motion for rehearing to the language in the original opinion, to the effect that no fraudulent purpose appeared to deprive appellant of his witness’s testimony whoQ^as indicted while under the rule, etc., but this was a reasonable deduction ‘from the record in the manner in which it appeared, there is no error. "''</p> <p>3. —Same—Charge of Court—Apparent Danger—Standpoint of Defendant.</p> <p>Where, upon trial of murder, the court’s charge on apparent danger instructed the jury that a reasonable apprehension of death or serious bodily injury will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in which case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant, there was no reversible error. Distinguishing' Hays v. State, 199 S. W. Rep., 621.</p> <p>4. —Same—Requested Charge—Apparent Danger—Standpoint of Defendant.</p> <p>Where appellant complained of the court’s refusal to give his requested charge on apparent danger, but it appeared from the record that the court had submitted another requested charge of defendant on the same subject which, taken with the main charge, fully instructed the jury that they •should view the situation from the standpoint of the defendant, there was no reversible error; besides this special charge as refused was on the weight of the evidence.</p> <p>5. —Same—Requested Charges—Bill of Exceptions.</p> <p>Where it did not appear from the requested charge or bill of exceptions whether said charge was presented or refused before or subsequent to the reading of the court’s charge, the same cannot be considered.</p> <p>6. —Same—Requested Charge.</p> <p>Where it appeared from the record that the requested charges were either given in the main charge or submitted, there was no reversible error.</p> <p>7. —Same—Evidence—General Reputation.</p> <p>Where the bill of exceptions showed no reversible error in the. admission of testimony as to general reputation of the deceased and whether he was mad, or the testimony admitted as to the location of the bullet holes, etc., there was no reversible error.</p> <p>8. —Same—Argument of Counsel.</p> <p>In the absence of a requested charge to withdraw the argument of State’s counsel to which objection was raised privately there was no reversible error.</p>

<p>The opinion states the case.</p>

<p>Wife Desertion—Insufficiency of the Evidence.</p> <p>Where, upon trial of willfully deserting, neglecting and refusing to provide for his wife, there was no evidence that defendant deserted his wife, and it was insufficient to show that she was in necessitous circumstances or that he failed to provide for her, the conviction could not he sustained.</p>

<p>1. —Negligent Homicide—First Degree—Statement of Facts—Bills of Exception—Time of Filing—Practice on Appeal.</p> <p>Where, upon appeal from a misdemeanor from the County Court, an order was made by the court, when overruling defendant’s motion for new trial, allowing thirty days after adjournment of court in which to file statement of facts and bills of exception, and the same were filed within said thirty days, a motion to strike out the bills of exception because they were filed more than twenty days after the adjournmen of court, is overruled</p> <p>2. —Same—Statement of Facts—Bills of Exception—Statutes Construed.</p> <p>In view of the misapprehension among courts and litigants with regard to filing statement of facts and bills of exception in misdemeanor cases, recent legislation and decision bearing upon this question are reviewed, and the conclusion reached that the former decisions holding that statement of facts and bills of exception must be filed within twenty days after the adournment of the County Court are erroneous. Reviewing Howard v. State, 53 Texas Crim. Rep., 378, 111 S. W. Rep., 1038, and other cases.</p> <p>3.</p> <p>—State—Statutes Construed—Stenographers’ Act.</p> <p>The Act of the Thirtieth Legislature 1907, page 446, granting parties twenty days after adjournment within which to file statement of facts and bills of exception, was superseded later during the same Legislature by the so-called stenographers bill granting thirty days for such filing, and the courts thereafter held that cases appealed from the District Court were properly filed within thirty days but that this did not apply to appeals from the County Court. Following Dobbs v. State, 54 Texas Crim. Rep., 550, 113 S. W. Rep., 921, and other cases. However, the Act of 1909, page 374, Section 7, left not doubt that parties' appealing from the County Court were entitled to thirty days after the day of adjournment in which to prepare and file statement of facts and bills of exception, without reference as to whether the County Court had a stenographer or not .</p> <p>4. —Same—Rule of Construction—Repeal—Statutes Construed.</p> <p>The rule is that we need only to look to rules of construction when tne law is ambiguous and its language not clear, but there is no ambiguity in the Act of 1909, page 374, section 7, and this court so held. Following Sanders v. State, 129 S. W. Rep., 605; Contra, Sewall v. State, 130 S. W. Rep., 1003, and other cases; the later cases holding that the Act of 1909 repealed only chapter 24 of the Act of the Thirtieth Legislature, which is a wrong construction, as not only chapter 24 was repealed but all other laws in conflict therewith. Reviewing Mosher v. State, 62 Texas Crim. Rep., 42, 136 S. W. Rep., 467, and other cases.</p> <p>5. —Same—Statutes Construed—Latest Statute Controls.</p> <p>The latest statute on the subject is the Act of 1911, chapter 119, page 264, which re-enacts section 7 almost entirely of the Act of 1909, supra, and said section is carried into our code of Criminal procedure as article 845, and directs in plain language how the litigant may appeal his case, in misdemeanor cases.</p> <p>6. —Same—Indictment—Negligent Homicide—First Degree.</p> <p>Where the defendant was charged that he negligently and carelessly turned oyer a boat in which was a small boy, whose death by drowning was caused therefrom, defendant’s contention that the negligent homicide was of the second degree, and not of the first degree is untenable, as his act was not a misdemeanor nor would the same per se give justification for a civil action.</p> <p>7. —Same—Evidence—Character of Defendant.</p> <p>The testimony sought to be elicited from defendant’s witness that he considered the defendant a cautious man was merely hearsay and inadmissible.</p> <p>S.—Same—Requested Charge—Practice on Appeal.</p> <p>Where the requested charges were either embraced in the main charge, or upon the weight of the testimony, there was no error in refusing them.</p> <p>9. —Principals—Charge of Court.</p> <p>Where defendant was accompanied by another person who seemed to be acting with him in committing the offense, there was not error in the court’s charge on principals.</p> <p>10. —Same—Argument of Counsel.</p> <p>Where the argument of State’s counsel was in response to the argument of defendant’s counsel, there was no error.</p> <p>11. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of negligent homicide of the first degree, the evidence was sufficient to sustain the conviction, there was no reversible error on that ground.</p> <p>12. —Same—Remarks by Court—Reversible Error—Weight of Testimony.</p> <p>Where, upon trial of negligent homicide of the first degree, the court failed to sustain an objection to the question of defendant’s counsel, whether the witness would or would not say that defendant was a cautious man, but thereupon made the remark to the State’s counsel, “Well, you may be right, but it will do so little harm that I believe I will admit the testimony,’’ the same was reversible error.</p> <p>13. —Same—Rule Stated—Statutes Construed.</p> <p>It is clear that the framers of our law recognized the strategic position occupied by the trial judge and the weight which the jury attach to his words and action, and he is forbidden under article 736, C. C. P. to discuss the facts or use' any argument in his charge calculated to arouse the sympathy or excite the passion of the jury. Following Moore v. State, 33 Texas Crim. Rep., 306, and other cases, and where it reasonably appears that injury could have resulted by such remarks of the trial court the same is reversible error.</p>

<p>1. —Local Option—Agency—Accommodation.</p> <p>Where, upon trial of a violation of the local option law, the defendant claimed to have no interest in the matter other than to accommodate the purchaser, the court should have affirmatively instructed the jury that if this theory was sustained to acquit the defendant.</p> <p>2, —Same—Purchaser—Charge of Court—Accomplice—Principals.</p> <p>The purchaser of the liquor alleged to have been sold is by law dedeclared not to be an accomplice, nor is he a principal; and it was error in the court’s charge, under defendant’s theory of defense of agency, to charge on the law of principals, but he should have given a more comprehensive charge on that of agency.</p>

<p>The opinion states the case.</p>

<p>1. —Aiding the Escape of Prisoner—Insufficiency of the Evidence—Accomplice.</p> <p>One who is in jail who merely accepts the means by one outside to effect his escape, is not within the accomplice rule, but where he conspires to liberate others he is an accomplice, and unless his testimony is corroborated by other evidence it is not sufficient to sustain the conviction.</p> <p>2. —Same—Circumstantial Evidence—Insufficiency of the Evidence.-</p> <p>Where upon trial of aiding in the escape of a prisoner in jail, the theory of the State was that the defendant conveyed a certain file into the jail with which the prisoner affected his escape, and the testimony was wholly circumstantial, the inference that defendant abstracted this file from a certain place must exclude every other reasonable hypothesis, which in "the instant case it not only failed to do, but the evidence was insufficient, taking the same as a whole, to sustain the conviction. Following Lagow v. State, 197 S. W. Rep., 217.</p>

<p>The opinion states the case.</p>

<p>1. —Keeping Disorderly House—Continuance—Want of Diligence.</p> <p>Where, upon trial of keeping a disorderly house, the application for continuance showed a want of diligence, and that the absent testimony was of a cumulative and negative character, there was no reversible error in overruling the same.</p> <p>2. —Same—Rule Stated—Diligence Required.</p> <p>The record must show whether the subpoena was returned or not and if returned the information therein imparted should appear. Following Todd v. State, 57 Texas Crim. Rep., 26.</p> <p>3. —Same—Discretion of Court—Presumption.</p> <p>Where the abuse of discretion vested in the court is charged, in denying application for continuance, the presumption is in favor of the correctness of his ruling until it is shown otherwise.</p> <p>4. —Same—Evidence—Rebuttal—Cross-examination—Reputation.</p> <p>Where upon trial of keeping a disorderly house, the defendant on cross-examination of a State’s witness brought out the fact that said witness had forbidden the child of defendant to enter her premises and that she did so because she did not want her child to associate with the other, there was no error in re-examination of the State’s witness to show that the witness did so because she knew of the bad reputation of defendant for chastity; besides, similar testimony was admitted without objection.</p> <p>5. —Same—Evidence—Character of Witness.</p> <p>Upon trial of keeping a disorderly house, there was not error in permitting a State’s witness to testify that one of the women residing with the defendant was a prostitute, the witness being an officer and knew that such was the fact.</p> <p>6. —Same—Evidence—Reputation of House.</p> <p>Where a State’s witness was called to show the reputation óf defendant’s house, but failed to give material evidence, and defendant on cross-examination of the witness showed that a certain witness took his name, there was no error to show on redirect examination that the witness had signed a petition.</p>

<p>The opinion states the case.</p>

<p>1.</p> <p>1. —Forgery—Statement of Fact—Practice on Appeal.</p> <p>Where upon appeal from a conviction of forgery, the original statement of facts did not accompany the record, the same cannot be considered.. Following Morris v. State, 63 Texas Crim. Rep., 375, and other cases.</p> <p>2. —Same—Indictment—Receipt—Explanatory Averments—Rule Stated.</p> <p>It is the general rule that an indictment for forgery which sets out a written instrument which on its face would have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred or in any manner affected any property whatever, requires no explanatory averments. Following Hendricks v. State, 26 Texas Crim. Rep., 176.</p> <p>3. —Same—Pleading—Written Instrument—Receipt.</p> <p>Where the instrument in question appeared to be more than a receipt for money and was such upon which a civil suit could have been based, it was one upon which forgery could be declared without explanatory averments. Following Fonville v. State, 17 Texas Crim. App., 381.</p> <p>4. —Same—Indictment—Words and Phrases—Practice.</p> <p>The failure to embrace in the indictment averments explaining the words “In Bank of Groveton,” would not render the same subject to quashal on motion, as the matter could be reached by exception to the evidence in case of variance.</p>

<p>The opinion states the case.</p>

<p>1. —Receiving Stolen Property—Evidence—Condition of Defendant—Poor Health.</p> <p>Where, upon trial of receiving stolen property, there was evidence by the alleged thief that the brand wa,s changed on the alleged stolen sheep in the presence of the defendant, the defendant should have been permitted to show his age and poor state of health to show that he was .inactive and would not take notice of things that a healthy younger man would take, or to notice the circumstance that the sheep placed in his pasture by the alleged thief were stolen sheep, the conviction depending upon circumstantial evidence.</p> <p>2. —Same—Remarks by Judge—Reversible Error.</p> <p>Where, upon trial of receiving stolen property, the, defendant offered to show his old age and poor state of health bearing upon the proof of guilty knowledge, and the trial judge remarked: “I believe it is admissible upon another theory; the penalty would be from two to four years’ imprisonment, and if the .defendant should be convicted, the jury might take into consideration his age and the condition of his health in fixing the penalty, and I will admit the testimony,” the same was reversible error. Following McGee v. State) 37 Texas Crim. Rep., 668, and other cases.</p>

<p>The opinion states the case.</p>

<p>Habeas Corpus—Bail—Reduction of amount of Bail.</p> <p>Where, upon appeal from a habeas corpus' proceeding, the amount of bail fixed was excessive, the same is hereby reduced.</p>

<p>The opinion states the case.</p>

<p>1. Indictment and Information @=>176— Variance — Proving Date Alleged.</p> <p>That indictment charged that burglary was committed on December 1st, and the evidence showed that accused was on the 18th of the same month found in possession of property which came out of the burglarized house, would not create a fatal variance.</p> <p>2. Indictment and Information @=>176— Variance — Proving Date Alleged.</p> <p>The facts may show that the offense was committed either before or after the alleged date, provided the date fixed in the indictment precedes the return of the indictment.</p> <p>3. Burglary @=>41(1) — Evidence — Sufficiency.</p> <p>In prosecution of defendant servant for burglarizing his master’s house at night, evidence held sufficient to support conviction.</p> <p>4. Criminal Law @=>1159(1) — Review—Province of Jury. • .</p> <p>In prosecution for burglary, the jurors were the judges of the facts.</p> <p>5. Burglary @=>2 — Liability of Domestic Servant of Owner.</p> <p>The fact that defendant was a domestic servant of the owner of the house burglarized was immaterial, where his service was that of a delivery boy and he had no authority in the house at night.</p>

<p>1. —Petty Theft—Complaint—Ownership—Variance.</p> <p>Where defendant filed a motion to quash the complaint because the same alleged that the property belonged to one Harrison, when the proof showed it belonged to the Panther Auto Supply Co., the objection should have been made to the evidence and not by motion to quash; besides, Harrison was president and manager of the company.</p> <p>2. —Same—Requested Charge—Practice on Appeal.</p> <p>Where it did not appear from the record whether the requested charges were asked before the argument or thereafter, the same could not be considered on appeal.</p> <p>3. —Same—Evidence—Written Memorandum—Practice.</p> <p>Where the State offered a written memorandum to which the defendant objected, and before the court ruled, defendant withdrew his objection and the State withdrew said proffered instrument, whereupon defendant offered the same in evidence and an objection by the State was sustained, there was no reversible error.</p> <p>4. —Same—Evidence—Identification—Bill of Exceptions.</p> <p>Where the bill of exceptions to the testimony as to the identification of the alleged stolen property did not negative the fact of defendant’s presence, the same cannot be considered; besides the bill did not point out and state the facts.</p> <p>6.—Same—Defendant’s Failure 'to Testify.</p> <p>Where the remarks of State’s counsel did not constitute a reference to defendant’s failure to testify, there was no reversible error. , •</p> <p>6.—Same—Newly Discovered Evidence.</p> <p>Where the witnesses were in attendence but not placed on the witness stand, their testimony cannot be regarded as newly discovered evidence.</p>

<p>1. —Assault to Rape—Indictment.</p> <p>Where, upon trial of assault with intent to rape, the indictment followed approved precedent, the same was sufficient. Following Taylor v. State, 44 Texas Crim. Rep., 153.</p> <p>2. —Same—Insufficiency of the Evidence—Insanity.</p> <p>Where, upon trial of assault with intent to rape, the entire testimony as appearing in the record on appeal is unreasonable, and the evidence strongly . tended to show appellant’s insanity, the judgment is reversed and the cause remanded.</p>

<p>1.</p> <p>1. —Murder—Continuance—Practice in District Court—Motion for New Trial.</p> <p>Where the record showed that the application for continuance, and the motion for new trial, on account of the absence of defendant’s witness, was correctly overruled, there was no reversible error; besides, the bill of exceptions, containing a statement of the evidence which was heard by the court thereon was not filed during term time and cannot be considered on appeal. Following Miles v. State, 82 Texas Crim. Rep. 489, 200 S. W. Rep., 158, and other cases.</p> <p>2. —Same—Practice on Appeal—Presumption.</p> <p>In the absence of a statement of facts, the presumption is that the court below correctly overruled the motion for new trial.</p>

<p>1. —Local Option—Sufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, the evidence xvas sufficient to sustain the conviction, there was no reversible error.</p> <p>2. —Same—Intoxicating Liquor—Whisky.</p> <p>Whisky is per se an intoxicating liquor.</p> <p>3. —Same—Law in Force—Agreement.</p> <p>Where, upon trial of a violation of the local option law, the record on appeal showed that the county attorney agreed with the attorney for the defendant that the proof of the record showing that prohibition was in force would be waived, and that it was agreed that the law was in force in the county of the prosecution, this was sufficient to shoxv that the prohibition law was in effect and there was no reversible error. Following Eoff v. State, 75 Texas Crim. Rep., 244, 170 S. W. Rep., 707, and other cases.</p>

<p>1. —Murder—Charge of Court—Self-Defense—Manslaughter.</p> <p>Where, upon trial o£ murder inflicting the death penalty, the court properly charged on manslaughter and self-defense, there was no reversible error on that ground.</p> <p>2. —Same—Misconduct of Jury—Evidence Outside of the Record.</p> <p>Where, upon trial of murder inflicting the death penalty, it appeared from the record on appeal that the jury received in their retirement evidence not developed upon the trial, and that these new facts were used against the defendáht and were instrumental in bringing about the verdict of the jury in favor of the extreme penalty, the judgment must be reversed and the cause remanded. Following McDougal v. State, 81 Texas Crim. Rep., 179, 194 S. W. Rep., 944, and other cases.</p> <p>3. —Same—Rule Stated—Misconduct of the Jury—Outside Evidence.</p> <p>If the jury receives other testimony after having retired to deliberate upon the case, a new trial is mandatory where the testimony is of a material character, and it makes no difference whether the jury received the testimony from one of their number or from others. Following Mitchell v. State, 36 Texas Crim. Rep., 278, and other cases.</p>

From Bexar County. Original habeas corpus proceeding asking release from restraint under contempt proceeding for refusing to obey an injuction in a divorce suit.

<p>1. —Incest—Charge of Court—Limitation.</p> <p>Where, upon trial of incest, the evidence showed several acts of sexual intercourse, some of which would have been barred by the Statute of Limitation, a charge of the court which authorized a conviction if the act of sexual intercourse occurred on or about the first day of June, 1915, as alleged in the indictment which was filed May 14, 1918, was reversible error, although the acts occurring in 1914 were admissible in evidence, the defendant having denied the offense. Following Bradshaw v. State, 82 Texas Crim. Rep., 357, 198 S. W. Rep., 942.</p> <p>2. —Same—Accomplice—Charge of Court—Question of Fact.</p> <p>Where, upon trial of incest, the prosecutrix testified that she engaged in the relation with defendant through fear but that she consented, the matter became a question of fact whether she was an accomplice, and where the charge of the court was unduly restrictive, the same was reversible error. Following Clifton v. State, 46 Texas Crim. Rep., 18, and other cases.</p> <p>3. —Same—Rule Stated—Accomplice—Duress—Fraud.</p> <p>A general statement of the prosecutrix that the accused had carnal knowledge of her without her consent, or that she resisted, or that it was had through force, fear or threat, must be considered in connection with her other testimony, etc., and if the proof shows that the act of sexual intercourse alleged to have been incestuous could not have occurred without her consent, etc., she is an accomplice witness, unless under duress or fraud.</p>

<p>1. —Murder—Charge of Court—Defense of Property.</p> <p>Where, upon, trial of murder, the evidence showed that the defendant committed the homicide while the deceased was in the act of taking his corn at night, the court’s charge that the defendant would not be justified if ho killed deceased in pursuance of a previously formed design and not to prevent the theft of the corn, was reversible error, as the law does not require that the defendant be free of ill-will under such circumstances.</p> <p>2. —Same—Charge of Court—Former Thefts.</p> <p>Where, upon trial of murder, the evidence showed that the homicide occurred while deceased was attempting to steal defendant’s property in the night-time, the charge of the court that former thefts by deceased would not justify the homicide was error.</p> <p>3. —Same—Eight of Arrest—Charge of Court—Self-defense.</p> <p>Where, upon trial of murder, the evidence showed that the homicide occurred while deceased was attempting to steal defendant’s property and that defendant had him under arrest, when deceased called for a gun which his wife brought, when defendant shot him, the court should have submitted a charge with reference to defendant’s right to arrest the deceased under the circumstances.</p> <p>4. —Same—Self-defense—Defendant’s Standpoint.</p> <p>Where, upon trial of murder, the evidence showed that the deceased was about to secure the gun which' his wife had brought him, and the presumption would be that he intended to kill or inflict upon defendant serious bodily injury, the court should have given a specific charge on this phase of the evidence.</p> <p>5. —Same—Evidence—Circumstance.</p> <p>Where, upon trial of murder, the evidence showed that deceased was caught in the act of stealing defendant’s corn from his crib in the nighttime, when the homicide occurred, the defendant should have been permitted to show that the deceased had been in the habit of stealing defendant’s corn to feed his hogs and mules shortly prior to the homicide.</p> <p>6. —Same—Evidence—Impeaching Witness.</p> <p>Where, upon trial of murder, the wife of the deceased was impeached by defendant’s witness in accordance with predicates laid for such impeachment, she should not have been permitted to again take the stand and reiterate her former testimony.</p>

<p>1. —Local Option—Statement of Facts—Bills of Exception.</p> <p>Where the statement of facts and bills of exception were filed too late, they cannot be considered on appeal.</p> <p>2. —Same—Bill of Exceptions—Sufficiency of the Evidence—Rehearing.</p> <p>Where appellant filed an affidavit in connection with his motion for rehearing, but this cannot alter the ruling in the original opinion as the statement of facts was filed too late, yet if the facts were considered the conviction would be sustained and there was no reversible error.</p>

<p>1. —Theft of Automobile—Requested Charge—Possession.</p> <p>Where, upon trial of theft of an automobile, the court’s main charge sufficiently presented the issue, as far as the court can judge in the absence of a statement of facts, with reference to the possession of the alleged stolen property, there was no reversible error.</p> <p>2.</p> <p>2. —Same—Evidence—Circumstances—Practice on Appeal.</p> <p>Where, upon trial of theft of an automobile, certain articles which were found therein in defendant’s possession at the time of his arrest were brought into the courtroom, and the State’s witness during his examination exhibited some of them before the jury, and identified them as parts of his automobile, and some found' therein, the court is not able to discover error, in the absence of a statement of facts; besides, the defendant accepted the bills of exception as qualified by the judge.</p>

<p>1. —Carrying Pistol—Bill of Exceptions—Buie Stated.</p> <p>The bill of exceptions must disclose the relevancy and materiality of the excluded or admitted testimony, and inferences will not be indulged to supply the omissions. Following Luttrell v. State, 14 Texas Crim. App., 147, and other cases.</p> <p>2. —Same—Argument of Counsel.</p> <p>Where the remarks of State’s counsel were not outside of the record, with the exception possibly of his reference to the little boy, but were not of such nature to cause a reversal, unless a requested charge had been refused, there was no reversible error.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Damaging Railroad Track—Practice on Appeal.</p> <p>Although appellant has not filed a motion for new trial this court has nevertheless considered the record as though a motion had been filed.</p> <p>2. —Same—Motion to Quash—Indictment.</p> <p>Where the record was silent as to whether the motion to quash the indictment was ever presented to the court below, the same cannot be considered on appeal.</p> <p>3. —Same—Charge of Court—Motion for New Trial—Practice on Appeal.</p> <p>In the absence of a motion for new trial or raising any objection to the charge of the court, it must be presumed that the same was sufficient.</p> <p>4. —Same—Validity of Statute—Motion In Arrest of Judgment.</p> <p>In the absence of an objection pointing out the unconstitutionality of the statute, the motion in arrest of judgment was properly overruled.</p> <p>5. —Same—Statement of Facts—Bills of Exception—Transcript.</p> <p>While the record might be construed that the statement of facts and bills of exception were filed too late for consideration, yet there appearing some confusion in the various orders of the trial court extending the time for filing, etc., this court has considered the same.</p> <p>6. —Same—Witness Under Rule—Bill of Exceptions—Discretion.</p> <p>The question of enforcing the rule and excusing witnesses from the rule is confided to the sound discretion of the trial court, and unless abuse is shown, the matter will not be revised, and where it appeared that no possible injury resulted in allowing the sheriff to testify there was no reversible error; besides, the bill of exceptions were defective. Following Banks v. State, 62 Texas Crim. Rep., 552,. and other cases.</p> <p>7. —Same—Evidence—Declarations by the Defendant—Confession.</p> <p>Where it appeared from the record on appeal that the defendant was not in custody when he made the written and oral statements which were introduced in evidence, there was no reversible error.</p> <p>8. —Same—Corpus Delicti—Sufficiency of the Evidence—Rule Stated—Confessions.</p> <p>It is the settled law of the State, that the confessions of one accused of crime or his connection therewith, will justify his conviction when the facts making out the substantive crime have been shown otherwise (Attaway v. State, 35 Texas Crim. Rep., 403, and other cases) but in the instant case defendant’s confession was sufficiently corroborated by other evidence. Following Harris v. State, 64 Texas Crim. Rep., 594, and other cases.</p> <p>9. —Same—Motion for New Trial—Rehearing—Attorney and Client.</p> <p>Where appellant was represented in the trial court by a different attorney than the one who appeared in this court, the contention that errors committed in the admission of evidence to which no objections were made can now be heard in this court although a motion for new trial was' not filed, is untenable; the proceeding being free from fraud or táint of unfair dealings.</p>

<p>1. —Local Option—Transfer—District Court—County Court—Bill of Costs— Jurisdiction.</p> <p>The statute does noi require that the bill of cost accruing in the District Court, accompanying the indictment in its transfer to the County Court, be itemized, and the plea to the jurisdiction on this account was therefore correctly overruled.</p> <p>2. —Same—Evidence—Other Transactions—Bills of Exception.</p> <p>Upon trial of a violation of the local option law, the testimony that the defendant bought whisky in quantities large or small, a year before the alleged sale, might become material, and where the bill of .exceptions did not point out the alleged error this court will not resort to other parts of the record. Following Clayton v. State, 67 Texas Crim. Rep., 311, 149 S. W. Rep., 119.</p> <p>3. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, the evidence sustained the conviction under a proper charge of the court there was no reversible error.</p> <p>4. —Same—Bills of Exception—Practice on Appeal.</p> <p>Where the objection to the evidence was that it was too remote on the question of receiving quantities of liquor prior to the alleged sale, and no error was pointed out, this court cannot search the remainder of the record to supplement the fact stated in the bills of exception. Following Thompson v. State, 29 Texas Crim. Rep., 208, and other cases.</p> <p>5. —Same—Date of Offense—Allegation—Proof—Rule Stated.</p> <p>It is well settled that the date of the offense alleged in the indictment is not binding and that the State may show any date within the period of limitation, as the date of the sale on which it elected to seek a conviction, and the bill of exceptions that the question of remoteness of the purchases of liquor, etc., might appear should have pointed out the date of the sale upon which' the State relied.</p> <p>6. —Same—Bills of Exception—Practice on Appeal.</p> <p>The objection in the bill of exceptions that the evidence was not admissible is clearly too general, nothing being pointed out in the bill of exceptions why it was not admissible under the issues of the case.</p> <p>7. —Same—Bills of Exception—Practice on Appeal.</p> <p>The objection made that the evidence was prejudicial is not only general, but is followed by no statement in the bill of exceptions showing how or in what manner same was prejudicial, and it can therefore not be considered on appeal. Following Wilson v. State, 63 Texas Crim. Rep., 81, and other cases.</p> <p>8. —Same—Bill of Exceptions—Practice on Appeal.</p> <p>There is nothing in the remaining part of the objection that the purchase or receipt of intoxicating liquors was in quarts and the sale only claimed to be in pints.</p> <p>9. —Same—Bills of Exception—Rule Stated—Practice on Appeal.</p> <p>If the allegations of the bills of exception be such as to necessitate resort or reference to other parts of the record, in order to ascertain whether the ground set out is well taken, the bill is insufficient. Following Williams v. State, 81 Texas Crim. Rep., 416, 195 S. W. Rep., 860, and other cases.</p> <p>30.—Same—General Demurrer—Bills of Exception—Presumption.</p> <p>The legal effect of bills of exception which are not sufficient in themselves, place them in the light of a general demurrer, and the presumption is in favor of the correctness of the action of the court in overruling them, and unless bills of exception properly present the question of the court’s error in admitting or excluding evidence, the same cannot be considered on appeal.</p>

<p>Murder—Death Penalty—Sufficiency of the Evidence—Confessions—Principal.</p> <p>Where, upon trial of murder, the admission of the defendant came within the provision of the statute authorizing written confessions by a party under arrest, the same was admissible in evidence, and the evidence in the case, being sufficient, to sustain the conviction, and that defendant was a principal, there was no reversible error.</p>

<p>1.—Murder—Malice—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder, the evidence showed that the defendant and others fired into a moving railroad train and killed the hrakeman, it was .not necessary for the state to show specific malice, and the evidence being otherwise sufficient to sustain the conviction, there was no reversible error.</p> <p>2.—Same—Confession—Principal.</p> <p>Where defendant’s written confession showed a deliberate unprovoked shooting into a moving railroad train, which resulted in the death of a brakeman, the defendant claimed that he shot each time his companion shot, but that he fired into the ground, but other evidence showed that he fired into the train, he was guilty as a principal, altho he may not have fired the fatal shot.</p>

<p>The opinion states the case.</p>

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>Steve Czernicki was convicteu of receiving and concealing stolen property, and he appeals.</p>

<p>1. —Manslaughter—Practice in District Court—Bill of Exceptions.</p> <p>It is permissible under the practice in this court for an appellant to take his bill of exceptions to the trial court’s action in modifying, qualifying,, or explaining a bill prepared by appellant and presented to the tria,l court, such bill conforming substantially to the requirements of bills of exception generally.</p> <p>2. —Manslaughter—Bill of Exceptions—Qualifications—Practice in District Court.</p> <p>Bills of exception should be presented to opposite counsel for agreement thereof, and to the judge for approval or rejection, and while the judge may make suggestions to attorneys of corrections and so forth, yet he has no authority to approve a bill oí exceptions, and without agreement of the attorney presenting it, to qualify the same with any character of explanation; and if he does, the attorney has the right to reserve his bill of exceptions thereto.</p> <p>3. —Same—Bill of Exceptions—Case Stated—Practice on Appeal.</p> <p>Where the court below materially qualified the bill of exceptions without presenting same to defendant’s attorney or giving him opportunity to file his exceptions thereto, and the trial court had ample time before adjournment of his court to make these corrections and call the attorney’s attention thereto, but the original bill of exceptions was not filed until the last day before adjoúrnment, when defendant filed his bill of exceptions to the court’s action, this court will pass upon and review the original bill of exceptions,</p> <p>4. —Same—Motion for New Trial—Misconduct of Jury—Bill of Exceptions.</p> <p>Where the trial court informed counsel for defendant that it. was his invariable rule to require all motions for new trial which set up as ground thereof misconduct of the jury to be filed within two days after the rendition of the verdict, to which counsel assented, but the record showed that the counsel offered testimony in justification for not having filed his motion for new trial setting up misconduct of the jury within the two days, the court should have heard the testimony and should have heard said motion for good cause shown, and sustained the same where such misconduct of the jury was shown, and the court’s refusal to do so is reversible error.</p> <p>4. —Same—Evidence—Copy of Telegram—District Attorney.</p> <p>In the absence of a predicate for secondary evidence, there was no error in the Court’s refusal to compel the district attorney to deliver a purported copy of a certain telegram to counsel for' defendant.</p>

<p>Appeal from District Court, Pecos County; James Cornell, Judge.</p> <p>J. J. Kilpatrick, Jr., was convicted of manslaughter upon a second trial, and appeals.</p>

<p>1. —Slander of Female—Charge of Court—Allegation and Proof—Other Transactions.</p> <p>While testimony of other similar statements at times other than that charged in the indictment, in the case of slander of a female is admissible, yet such other statements should be limited by the court’s charge to the question as to whether the particular statement alleged in the indictment was wantonly and maliciously made, and that such statements must have been shown beyond a reasonable doubt were in fact made, before they can be considered by the jury.</p> <p>2. —Same—Charge of Court—Meaning of Language—Innuendo—Rule Stated.</p> <p>Where it becomes necessary to explain the language used by an innundo pleading, it is also necessary to prove that the language was so used and the meaning attached to same by the innuendo, and where this was not done, the same is reversible error.</p> <p>3. —Same—Evidence—Motive—Declarations of Defendant.</p> <p>Testimony to the' effect that defendant told a witness that the alleged female had slighted him was admissible as showing his motive in making the alleged slanderous statement. Following McDonald- v. State, 73 Texas Crim. Rep., 125.</p> <p>i.—Same—Evidence—Bias of Witness—Limiting Testimony.</p> <p>While the bias of the witness could be shown by his acts in arming himself, etc., and which occurred in the absence of the defendant may have been admissible, yet the same should have been properly limited to that purpose in the court’s charge.</p>

<p>The opinion states the case.</p>

Succinctly stated, the evidence, which is very voluminous, showed that the parties resided and had been neighbors in the town of Brasher in Hopkins County, Texas, for some fifteen years.

Tried below before the Hon. F. G. Chambliss, judge. Appeal from a conviction of forgery; penalty, five years imprisonment in the penitentiary. (Copy of Indictment) IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS.

From Red River County. Original habeas corpus proceeding asking release from confinement under a judgment of contempt, from the District Court, placing relator in jail for refusing to answer questions as a witness before the grand jury. The opinion states the case.

<p>1. —Delivering Intoxicating Liquors to United States Soldiers—Requested Charge.</p> <p>Where, upon trial of a violation of the law to deliver intoxicating liquors to soldiers in the United States army, the requested charge directed an acquittal if the defendant bought the whisky for himself, it was correctly refused.</p> <p>2. —Same—Sufficiency of the Evidence—Accomplice Testimony.</p> <p>While it is correct in prosecutions of this character that accomplice testimony must be corroborated, yet where defendant fails to request a charge or except to the court’s charge for failure to instruct on accomplice testimony, there was no reversible error; besides, there was corroborative testimony.</p> <p>3. —Same—Accomplice—Practice on Appeal.</p> <p>In the absence of a requested charge on accomplice testimony, and the State’s witness not being an accomplice as a matter of law, and besides being corroborated by other testimony, there was nó reversible error.</p> <p>4. —Same—Rule Stated—Corroboration.</p> <p>The law does not require that the corroborative evidence be sufficient of itself and "without the aid of the accomplice testimony to show guilt, but if the jury believe the accomplice testimony true and it shows the commission of the offense and the guilt of the accused, the corroboration is sufficient if it is to a material matter and tends to connect the defendant with the commission of the offense. Following Wright v. State, 47 Texas Crim. Rep., 433, and other cases.</p>

<p>1.—Murder—Preliminary Statement—Practice in District Court.</p> <p>Where, upon trial of murder, after arraignment and plea of not guilty, defendant requested that the State be required to make a statement of its case as provided in article Í17 C. C. P., which the State refused to do, and the court refused to require the State to make such statement, the same was reversible error. Following House v. State, 75 Texas Crim. Rep., 338, and other cases.</p> <p>2.</p> <p>—Same—Preliminary Statement—Practice in District Court.</p> <p>Where, upon trial of murder, defendant desired to make a preliminary statement before beginning to introduce his testimony under article 717 G. C. P., the same should have been granted.</p> <p>3.</p> <p>—Same—Charge of Court—Principals.</p> <p>Where, upon trial of murder, the evidence showed that the defendant’s companions fired the shots which killed the deceased, and there was no evidence that defendant fired any shots that killed the deceased or that he was even armed, it was reversible error to instruct the jury that if defendant with malice aforethought killed the deceased by shooting him with a pistol, etc., to find him guilty of murder. Following Oates v. State, 51 T'exas Crim. Rep., 449.</p> <p>4. —Same—Charge of Court—Principals—Weight of Evidence.</p> <p>Where, upon trial of murder, the State’s theory was that defendant was present and aided or encouraged the parties who committed the homicide, and defendant claimed that he- did not participate in any manner therein and had no knowledge of the crime, etc., the charge of the court on the law of principals which practically covered every statute on the subject mentioned in the penal code, and did not apply the law to the facts in the case, was reversible error.</p> <p>5. —Same—Confessions of Third Party—Imputing Crime to Another.</p> <p>Where, upon trial of murder, the record on appeal showed that another party who was charged by separate indictment with the murder of the same person whom defendant was alleged to have killed, and which third party was convicted and the death penalty assessed against him, and who died in jail before his execution, and while in' such dying condition made a confession that defendant was innocent of the crime and that the defendant was present when the crime was committed but had no previous knowledge of the intention of others to commit it and took no part in it, the same was inadmissible in evidence. Following Bowen v. State, 3 Texas Crim. App., 617, and other cases, distinguishing Blocker v. State, 55 Texas Crim. Rep., 30; Pace v. State, 61 Texas Crim. Rep., 436. Davidson, Presiding Judge, dissenting.</p> <p>6. —Same—Rule Stated—Imputing Crime to Another.</p> <p>While it is the settled rule that one accused of crime may show that another person committed the offense where the guilt of such other person would be consistent with the innocence of the accused, yet this proof must be by competent evidence, and as a rule a confession or admission of a third person that he committed the crime of which the defendant is charged is mere hearsay and not admissible in evidence, where it does not constitute a part of the res gesta. Following Dubose v. State, 10 Texas Crim. App., 230, and other cases, distinguishing Blocker v. State, supra, and Pace v. State, supra.</p> <p>7. —Same—Case Stated—Imputing Crime to Another—Codefendant’s Declaration.</p> <p>Where, upon trial of murder, the evidence showed that defendant was admitedly present at the time the homicide took place, and the prosecution against him was upon the theory that he acted with others as principal, and there was no specific declaration that the declarant killed the deceased, and that the dying declarations of such declarant did not necessarily exculpate the defendant, such declarations that the defendant was innocent although present when the crime was committed were inadmissible in evidence. Besides, such declarant having been indicted and convicted for the same offense as that charged against defendant would have been an incompetent witness. Davidson, Presiding Judge, dissenting.</p>

<p>From Gonzales County.</p> <p>Original habeas corpus proceeding asking release from arrest • as delinquent child under a judgment of the County Court, sentencing relator to the State Juvenile Training School, for a period of one year.</p> <p>The opinion states the case.</p>

<p>1. —Perjury—Indictment—Materiality of False Statement. /</p> <p>Where, upon trial of perjury, defendant contended that the indictment must not only allege the materiality of the false statement made before the grand jury, but must go further and allege that the defendant, or some other person, was in fact guilty of some' crime against the laws of this State in the matter about which he falsely testified, the same is untenable and the indictment was good without such allegation.</p> <p>2. —Same—Rule Stated—Perjury—Material Facts.</p> <p>The law intends to punish the makers of false statements regarding the material facts in proper inquiries, no .matter what becomes of the investigation or litigation, or whether it be developed that the matter charged is wholly baseless or absolutely true, and it is not necessary to allege in the indictment that the accused in said investigation was guilty of a crime.</p> <p>3. —Same—Indictment—Allegation of Name—Misnomer—Surplusage.</p> <p>Where, upon trial of perjury, one paragraph in the indictment. alleged the name Minnie Bardshaw, and in other parts of the indictment Minnie Bradshaw, as the woman with whom defendant committed adultery, which he denied in his testimony before the grand jury, such misnomer may be eliminated as surplusage; besides, such minomer was not fatal in the indictment. for perjury. Following Earl v. State, 33 Texas Crim. Rep., 570 and other cases.</p> <p>4. —Same—Venue—Indictment.</p> <p>Where, upon trial of perjury, defendant objected to the indictment and proof that matters were set out and testified to which are alleged to have occurred in a county other than the one in which the grand jury was sitting, before which the alleged perjury was committed, but the record showed that the material question was whether defendant committed adultery with a woman in the county of the prosecution, the fact that he carried her from such county to a rescue home in another county, would not in anyway prevent these facts from being, material as to what he did in the county of the prosecution, and there was no reversible error.</p> <p>5. —Same—Voluntary Statement—Evidence.</p> <p>Where, upon trial of perjury, the testimony showed that defendant made a statement before the grand jury voluntarily, there was no error in the court’s refusal of a requested charge that the jury should not consider this statement unless the same was freely and voluntarily made; the court’s charge properly protecting the rights of the defendant.</p> <p>6. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of perjury, the evidence was sufficient to sustain the conviction, there was no reversible error.</p> <p>It is not necessary in an indictment for perjury to allege therein that defendant or another was guilty of the offense of adultery where the material inquiry, as set out in the indictment, was before said grand jury at the time defendant came before it whether or not defendant and a woman not his wife lived together and had carnal intercourse or had habitual carnal intercourse without living together, and that the grand jury had jurisdiction to make such inquiry.</p> <p>7. —Same—Indictment—Rule Stated—Pleading.</p> <p>8. —Same—Declarations of Defendant—Voluntary Statement—Duress.</p> <p>Where defendant contended that his declaration before the grand jury upon which the indictment for perjury was based were not freely and voluntarily made and therefore not admissible in evidence against him, but the record on appeal showed that they were voluntarily made, and were admitted without objection; and the court charged the jury that such declarations must have been made deliberately and willfully before the jury could convict the defendant, there was no reversible error; besides, under the statute the question as to whether the alleged false statement was freely and voluntarily made cannot be raised, unless such statements are made under duress.</p>

<p>Appeal from District Court, Hood County; J. B. Keith, Judge.</p> <p>Gat Hardin was convicted of perjury, and appeals.</p>

<p>1. —Murder—Continuance—Agreement—Practice in District Court.</p> <p>Where, prior to the conclusion of the trial, the State in open court admitted the truth of the matter which defendant set up in his application for continuance, and which was read to the jury, there was no reversible error.</p> <p>2. —Same—Argument of Counsel—Bill of Exceptions—Explanation.</p> <p>Where defendant accepted the court’s explanation of his bills of exception to the argument of State’s counsel, there was no reversible error.</p> <p>3. —Same—Motion for New Trial—Re-examination of Witness—Bill of Exceptions.</p> <p>In the absence of. a bill of exceptions to the court’s actions in- ref rising to allow defendant to re-examine a witness, the same cannot be considered; besides, it appears from the record that when said witness testified defendant silently permitted, objectionable matters to be introduced against him and he cannot be heard to complain.</p> <p>4. —Same—Misconduct of Jury—Statement of Facts—Bill of Exceptions.</p> <p>In the absence of a statement of facts and bills of exception filed during the term of court at which the case was tried, defendant’s complaint of the misconduct of the jury in his motion for new trial cannot be considered.</p> <p>5. —Same—Bill of Exceptions—Practice on Appeal.</p> <p>Where appellant’s bill of exceptions, containing the facts adduced on his motion for new trial with reference to the misconduct of the jury, was filed after the adjournment of the trial court, the same cannot be considered on appeal.</p> <p>6.</p> <p>—Same—Continuance—Practice in District Court.</p> <p>Where appellant complained that the trial court overruled an application for a continuance in the beginning of the trial, but was acting in accordance with an understanding that the State near the close of the trial would be permitted to admit the truth of the facts set up in said application, but there was nothing in the record to justify any such complaint, ' there was no reversible error.</p> <p>7.</p> <p>—Same—Argument of Counsel.</p> <p>Where the argument of State’s counsel was based upon the record there was no reversible error. 0</p>

<p>1. —Burglary—Accomplice—Corroboration—Rule Stated.</p> <p>The law does not require that the evidence, independent of that of the accomplice, should establish guilt; it requires only that there should be criminative facts proved, which tend to connect the accused directly and immediately with the commission of the ofiense. Following Weldon v. State, 10 Texas Crim. App., 400, and other cases.</p> <p>2. —Same—Corroboration—Accomplice—Sufficiency of the Evidence.</p> <p>Where, upon trial of burglary, the evidence of the accomplice was sufficiently corroborated, and the evidence was sufficient to sustain the conviction, there was no reversible error.</p> <p>3. —Same—Positive Evidence—Circumstantial Evidence—Waiver—Consent.</p> <p>Where, upon appeal from the conviction of burglary, appellant’s contention was that there was positive and direct evidence attainable to prove want of consent of unlawful taking, and that it was, therefore, not permissible to resort to circumstantial evidence, but it appeared from the record that this rule, which is well founded, was not invoked at the proper time on the trial, there was no reversible error. Following Brown v. State, 58 Texas Crim. Rep., 336, and other cases.</p> <p>4. —Same—Rule Stated—Waiver—Practice in District Court.</p> <p>While it is required to produce the best evidence to prove a given fact, yet this may be done by inferior testimony, if no objection is urged, and a failure to do so will be considered a waiver, and if the testimony is sufficient to support the conviction there is no reversible error. Following Wisdom v. State, 42 Téxas Grim. Rep., 579, and other cases.</p> <p>5. —Same—Cases Stated—Sufficiency of the Evidence.</p> <p>Where, upon trial of burglary, the owner of the alleged house testified that he did not give his consent to the breaking and entry thereof, etc., and it was- shown circumstantially, without objection, that he did not give his consent to the taking of the alleged goods, and that defendant’s intent was to steal, the conviction was sustained.</p> <p>6. —Same—Accomplice—Corroboration—Sufficiency of the Evidence.</p> <p>Where, upon trial of burglary, the evidence tended to show that the defendant was in a position to burglarize the house, and was with the party who did the breaking, by the accomplice’s testimony, and this was sufficiently corroborated by circumstances, the conviction was sustained. Following Martin v. State, 21 Texas Crim. Rep., 1, and other cases.</p>

<p>Robbery—Statement of Facts—practice on Appeal.</p> <p>In the absence of a statement of fact and a bill of exceptions to the action of the court, overruling the application for a continuance and motion for new trial, judgment below must be affirmed.</p>

<p>1. —Petty Theft—Value—Charge of Court.</p> <p>Where, upon trial of misdemeanor theft, the evidence showed that the alleged stolen property, or the material going into the same, was bought for two dollars, this was sufficient proof of the value under the law, there being-no question involved as to whether the offense was felony or misdemeanor, and there being no exceptions as to the manner of proving value. Following Hatfield v. State, 66 Texas Grim. Rep., 338, 147 S. W. Rep., 237, and other cases.</p> <p>2. —Same—Verdict—Fine and Imprisonment.</p> <p>Where, upon trial of misdemeanor theft, the jury found the defendant guilty and fixed his fine at one hundred dollars, without adding some term of imprisonment, the judgment must be reversed and cause remanded.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Prom Cooke County.</p> <p>Original habeas corpus proceedings asking release from a judgment against the latter as a delinquent child, committing him to the training school at Gatesville.'</p> <p>The opinion states the case.</p>

The difficulty arose about a difference between deceased on the one hand and defendant and his father on the other about the right of possession of a certain stalk field purchased by the defendant’s father; tearing down cross fences, etc. The State claims that the deceased was accosted by the defendant and his father, and’ that he was struck on the head with a piece of sucker rod coupling, from the result of which he died a few days thereafter.

<p>1. —-Assault to Rape—Indictment—Rule Stated.</p> <p>Where, upon trial of assault to rape, the language of the indictment followed approved precedent the same was sufficient. Following Schockley v. State, 71 Texas Crim. Rep., 475.</p> <p>2. —Same—Evidence—Res Gestae—Declaration of Prosecutrix—Resistance.</p> <p>Where, upon trial of assault with intent to rape, the prosecutrix, immediately after the assault upon her, said to the defendant that if he did not stop treating her like he did she was going to tell the way he always treated her, ever since she was little, etc., the same was res gestee, and and furthermore, was admissible to show the resistance she made at the time against the assault, and did not necessarily infer other transactions amounting to assaults.</p> <p>3.—Same—Sufficiency of the Evidence.</p> <p>Where, upon trial with intent to rape, the evidence was sufficient to support the conviction, there was no reversible error under a proper charge of the court.</p>

The relator was charged, by complaint and information, with the offense of aggravated assault, in the County Court of Galveston County At Law, and on a plea of guilty, was convicted of said offense on the 12th of September, 1918, and his fine assessed at the sum of five hundred dollars and one year confinement in the county jail.

<p>1.—Manslaughter—Evidence—Declarations of Co-conspirator.</p> <p>Upon trial of murder and conviction of manslaughter, it was reversible error to introduce in evidence the declarations of defendant’s father sometime after the homicide, that he and his son, the defendant, had accomplished just what they went there to do, and which was in the absence of the defendant and after any conspiracy could have existed. Following Drake v. State, 29 Texas Rep., 265.</p> <p>2.—Charge of Court—Burden of Proof—Self-Defense.</p> <p>Where, upon trial of murder and conviction of manslaughter the issue of self-defense was made prominent by the facts, and the court’s charge limited the issue of criminality to the exclusion of self-defense as between murder and manslaughter, the same was reversible error, and placed the burden of proof upon defendant.</p>

<p>1.—Swindling—Drawing Check—No Funds in Bank—Information—Variance.</p> <p>It is not necessary to allege in the information that the alleged bank was a corporation or a co-partnership where the bank was not the injured party; but where die allegation named an individual and the proof showed that the money upon which the check was drawn belonged to a corporation or co-partnership, the variance was fatal, and the conviction could not be sustained. Following Faulk v. State, 38 Texas Crim Rep., 78, and other cases.</p> <p>2.—Same—Argument of Counsel.</p> <p>Where the district attorney indulged in argument which was not warranted by the facts or supported by any evidence in the record, the same was reversible error.</p>

<p>Forgery—Evidence—Cross-examination—Bias of Witness.</p> <p>Upon trial of forgery, the defendant had the right under the law to have the jury informed that the State’s witness who had given important testimony, the truth of which he controverted, had an interest in the matter which would or might, in the judgment of the jury, disclose a motive for giving the testimony which would tend to discredit its truth. • Following Watson v. State, 9 Texas Crim. App., 237, and other cases.</p>

<p>Theft of Automobile—Argument of Counsel—Rule Stated.</p> <p>Where, upon trial of theft of an automobile, the district attorney pointed to the defendant and called him a thief and resorted to other abuse and villification of. the prisoner, the same was' reversible error. Following Parks v. State, 35 Texas Crim. Rep., 378, and other, cases.</p>

<p>Complaint—Jurat—Assistant County Attorney.</p> <p>Where the assistant county attorney signed -the jurat in the name of his principal the same was insufficient, and t-he certificate should have shown that the assistant county attorney administered the oath, as he was vested with authority to administer the same. Following Arbetter v. State, 79 Texas Crim. Rep., 487, 186 S. W. Rep. 769.</p>

<p>Tick Eradication—Information—Live Stock Sanitary Commission.</p> <p>Upon trial of a violation of the tick eradication law it is necessary to allege and prove a notification in writing of the time and manner the dipping is required to be done by the Live Stock Sanitary Commission, and where the information failed to allege this the same was fatally defective.</p>

<p>1. —Murder—Circumstantial Evidence—Confessions—Charge of Court.</p> <p>Where, upon trial of murder, one of the State’s witnesses testified to defendant’s confession to her, although the same was made under peculiar circumstances, there was no error in the court’s failure to charge on circumstantial evidence.</p> <p>2. —Same—Evidence—Declarations of Defendant—Hearsay.</p> <p>Where, upon trial of murder, the court permitted a State’s witness to testify that another witness, who was an attendant upon court, had told him that the defendant had told said witness that he killed deceased, the same was hearsay and reversible error. Following Murphy v. State, 65 Texas Crim. Rep., 551, and other cases.</p> <p>3. —Same—Evidence—General Reputation—Too Remote.</p> <p>Where, upon trial of murder, defendant put his reputation in evidence as a law-abiding citizen, covering something like fifteen years prior to the time of the homicide, the State should not have been permitted to introduce testimony showing that fifteen or twenty years or more before this homicide the defendant was given to fighting and was a holy terror; this was too remote. Following Bogus v. State, 55 Texas Crim. Rep., 127, and other cases.</p> <p>4. —Same—Evidence—Tracks—Rule Stated—Opinion of Witness.</p> <p>Before a witness can give his opinion as to the similarity of tracks found upon the ground, and made by the shoes, the witness must have made some measurement of the tracks found upon the ground and the. foot or shoe of the accused, or made some comparison, etc.</p> <p>5. —Same—Case Stated—Tracks—Measurement—Comparison.</p> <p>Where, upon trial of murder, the evidence showed that between the time of the killing and the time that other witnesses came to look for tracks, there had been a rain at that immediate point, and some days after another State’s witness made an examination and testified that he found tracks of peculiar indentations on the ground, and that they corresponded in his judgment with the pair of hoots shown him by the defendant, no measurements or comparison having been made, etc., the same was inadmissible in evidence. Following Hester v. State, 51 S. W. Rep., 932, and other cases.</p> <p>6. —Alibi—Charge of Court.</p> <p>The court’s charge on alibi should have been more complete and conformed to the opinion of this court on former appeal.</p> <p>7. —Same—Evidence—Character of Witness.</p> <p>Upon trial of murder, there was no error in excluding testimony as to the character of house the witness was keeping, and that a woman was living in the house and had giving birth to three illigitimate children, in seeking to impugn the character of the said witness.</p> <p>8. —Same—Remarks by Court—Practice in District Court.</p> <p>Upon trial of murder the court’s observation, in sustaining the objection of defendant to certain testimony, to the effect that it was not admissible if the woman had. seven hundred children, was improper, but he should have simply sustained or overruled the objection.</p>

<p>The opinion states the case.</p>

<p>1. —Theft from the Person—Co-Defendant—Confession—Flight.</p> <p>The flight of a codefendant after the consummation of a conspiracy, if that existed between them at the time of the supposed commission of the offense charged in the indictment, will not justify the introduction in evidence of that flight against his codefendant. Following McKenzie v. State, 32 Texas Crim. Rep., 578, and other cases.</p> <p>2. —Same—Evidence—Reproduction of Testimony.</p> <p>Where, upon trial of theft from the person, the record on appeal showed that the witness who gave testimony before the examining court was in the Republic of Mexico at the time of the trial and beyond the jurisdiction of the court, there was no error in reproducing his former testimony against the defendant. Following Robertson v. State, 63 Texas Crim. Rep., 216, and other cases.</p>

<p>1. —Theft—Embezzlement—Principal—Agent.</p> <p>Where, upon trial of theft of property over the value of fifty dollars from the possession of the depot agent of a Railway Company, the defendant contended, that the offense was embezzlement instead of theft and that he should be acquitted of theft. Held, that said contention is untenable. Davidson, Presiding Judge, dissenting.</p> <p>2. —Same—Evidence—Confession—Arrest.</p> <p>Where, upon trial of theft, it appeared from the record on appeal that defendant was virtually in custody of the officers and under arrest for the' alleged theft at the time he made the alleged confession, which was introduced in evidence, the same was reversible error, and this although the bill of exception was somewhat meager but nevertheless pointed out that there was no warning and that his statement was not reduced to writing. Following Jones v. State, 52 Texas Crim. Rep., 207, and other cases.</p> <p>3.—Same—Arrest—Rules Stated.</p> <p>It is well settled that the defendant may be shown to be under arrest by the surrounding ' facts and. circumstances, and it is not neccessary that the officer should make an arrest in formal words. Following Nolan v. State, Texas Crim. App., 599, and other cases.</p>

<p>1. —Intoxicating Liquors—United States Soldier—Indictment.</p> <p>Where, upon trial of unlawfully procuring and delivering intoxicating • liquors to persons engaged and enlisted in the military forces of the United States, the indictment followed the terms of the statute the same was sufficient.</p> <p>2. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of ■ unlawfully procuring and delivering intoxicating liquors to persons engaged and enlisted in the military forces of the United States, the evidence was sufficient to sustain the conviction, there was ño reversible error.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Sophia Crosby was charged with unlawfully procuring and delivering intoxicants to persons engaged and enlisted in the military forces of the United States, and appeals from the judgment.</p>

<p>The opinion states the case.</p>

From Coleman County. Original habeas corpus proceeding asking release on the ground of former jeopardy in a case pending for trial in the District Court. The opinion states the case.

<p>1. —Habeas Corpus—Extradition—Executive Warrant—Description of Offense.</p> <p>The contention that because in the warrant the relator is charged with the crime of false pretenses vitiates the warrant, for the reason that there is no offense so denominated in the demanding State or any State, and that there is a failure in the warrant to recite facts necessary to show an offense, is not well taken, as it is only required that this be done in general terms. Following Ex parte Cheatham, 50 Texas Crim. Rep., 53, and other cases, and the production of the executive warrant makes a prima facie case; nor was it necessary that the warrant be accompanied by the complaint charging the offense.</p> <p>2. —Same—Burden of Proof—Certificate of Governor—Extradition. .</p> <p>The certificate of the governor of this State to the fact that the governor of the demanding State had made it known to him that the relator was charged by complaint, and that the demand for his surrender was accompanied by a copy of the complaint duly certified as authentic by the governor of the demanding State, was sufficient to put upon relator the burden of proving that the demand was not accompanied by a copy of the complaint, etc. Following Ex parte Faihtinger, 72 Texas Crim. Rep., 633, and other cases.</p> <p>3. —Same—Case Stated—Sufficiency of the Evidence.</p> <p>Where the relator introduced no evidence other than the statute of the demanding State defining the offense of obtaining property under false pretenses, and the respondent introduced a certified copy of the affidavit filed with the requisition which supported a charge against relator for obtaining property under false pretenses, and there was nothing to show that the offense was not sufficiently described, the proof was sufficient and there was no error in introducing said certified copy of the affidavit. Following Ex parte Coleman, 53 Texas Crim. Rep., 93, and other cases. Overruling Ex parte Thornton, 9 Texas, 635.</p> <p>4. —Same—Proof Necessary—Executive Warrant—Affidavit.</p> <p>It is not incumbent upon the respondent to introduce evidence other than the warrant issued by the Governor of Texas, and if there was a faulty description of the offense in the warrant, the question is met by the introduction in evidence by the respondent of a certified copy of the affidavit of the demanding State, although the requisition itself was not introduced in evidence.</p>

<p>1.—Theft of Automobile—Evidence—Confessions—Fruits of Crime.</p> <p>Where, upon trial of the theft of an automobile, the alleged confessions of the defendant led to the finding of the alleged stolen property, the same were admissible in evidence. Following Buntain v. State, 15 Texas Crim. App., 485, and other cases.</p> <p>2. —Same—Ownership—Management and Control—Special Owner.</p> <p>Where, upon trial of the theft of an automobile, the indictment alleged ownership in the person who had control, care and management of the same instead of the actual owner, the. contention that there is a variance between the allegation and the proof as to ownership is untenable, and there is no reversible error. Following Bailey v. State, 18 Texas Crim. App., 426, and other cases.—See opinion for general rule as to allegation and proof of ownership.</p> <p>3. —Same—Evidence—Flight—Same Offense.</p> <p>Where it was shown that the defendant was in jail for the same offense under a different complaint, and during such confinement broke jail and fled, there was no reversible error in admitting such testimony.</p> <p>4. —Same—Evidence—Flight—Lost Papers.</p> <p>In proving the flight of the defendant, there was no error in showing that the papers in the County Court had disappeared and could not be found, as a predicate of showing the flight of the defendant.</p> <p>5. —Same—Ore Confession—Written Confession.</p> <p>Where defendant had made an oral confession which led to the finding of the alleged stolen property, there was no error in admitting such confession, because defendant had subsequently made a written confession which could also be introduced.</p>

From Bowie County. Original habeas corpus proceedings, asking release from arrest under a judgment of the Corporation Court of the City of Texarkana, imposing a fine of ten dollars for a violation of the State Vagrancy law. The relator was fined for a violation of the State Vagrancy law in the Corporation Court of the City of Texarkana, Texas, on July 18, 1917, in the sum of ten dollars and costs.

<p>1. —Assault to Murder—City Charter—Judicial Knowledge—Warrant of Arrest.</p> <p>Section 3, of Chapter 3, of the City Charter of the City of Fort Worth, Texas, is a public law, and the courts will take judicial cognizance and knowledge of the contents and provisions thereof, and it is not necessary to prove the same. This section authorizes policemen of said city to make arrests without warrant .in cases of felony, under certain conditions.</p> <p>2. —Same—Criminal District Court of Tarrant County—Constitutional Law.</p> <p>Under section 1, article 5, of the Constitution of Texas, the Legislature had the authority to create and establish the Criminal District Court for Tarrant County. Following Howard v. State, 77 Texas Crim. Rep., 185, 178 S. W. Rep., 506.</p> <p>3. —Same—Requested Charge—Illegal Arrest—Aggravated Assault.</p> <p>Upon trial of assault with intent to murder, where the question of illegal arrest, claimed by the defendant,' was not supported by any evidence, either in behalf of the State, or the defendant, there was no reversible error in refusing a requested charge that the offense could only be aggravated assault under this phase of the case.</p> <p>4. —Same—Evidence—Declarations of Defendant—Res Gestae.</p> <p>Upon trial of assault to murder, there was no error in admitting testimony that when the defendant was taken from the car, he declared that the damn policeman had tried to shoot him, as this in the instant case was a part of the res gestas.</p> <p>5. —Same—Bill of Exceptions—Practice in District Court.</p> <p>Where the bill of exceptions was approved by the trial court with the statement that no exception was taken, altho objection was made, this was not correct practice, as the bill should have been approved or refused, however, the signature of the trial judge, together with the usual language of approval of the bill, controls the same.</p> <p>6. —Same—Charge of Court—Limiting Testimony.</p> <p>Where defendant complained that the court erred in failing to limit tlie purpose for which testimony of the fact that the defendant was indicted for theft and swindling was admitted, but the only objection thereto was that the indictment was returned on the day the evidence thereof was admitted, there was no reversible error.</p> <p>7. —Same—Objections 'to Charge of Court—Statutes Construed.</p> <p>Article 735, C. C. P., requires that all objections to the court’s charge shall be in writing, and all requested charges shall be in writing and presented to the court before argument begins, and this rule will not be relaxed, altho the trial court, in the instant case orally promised. counsel to insert in his charge a limitation of certain evidence, as counsel had opportunity to inspect the court’s charge and except thereto as the statute directs.</p> <p>8. —Same—Separation of Jury—Burden of Proof.</p> <p>, Where the record showed that the State fully met the burden in showing that no injury resulted to the accused from a casual separation of the jury, there was no reversible error.</p> <p>9. —Same—Verdict By Lot—Practice in District Court.</p> <p>Where the record on appeal showed that the jurors decided to put down their several opinions as to the number of years to be assessed against me defendant and divide the sum by twelve, which resulted in five years and a fraction, but thereupon, under suggestion of a juror, fixed the punishment at six years in the penitentiary, to which all the other jurors agreed, the verdict was not by lot, and there was no reversible error.</p> <p>10. —Same—Argument of Counsel—Requested Charge.</p> <p>In the absence of a requested charge to the argument of State’s counsel, asking that the same be withdrawn, there was no reversible error. Following Parshall v. State, 138 S. W. Rep., 770, and other cases.</p>

Prom Dallas County. Original habeas corpus proceeding asking release under cumulative sentence including the sentence of a former judgment of felony upon which the time for imprisonment in the penitentiary by the verdict of the jury had expired.

<p>Murder—Manslaughter—Charge of Court—Provocation.</p> <p>Where, upon trial of murder, and a conviction of murder, it appeared from the evidence that there were other persons who acted in conjunction with the deceased in giving provocation, the court’s charge on manslaughter that it is not enough that the mind is merely agitated by passion arising from some other provocation, or a provocation caused by some person other than the party the defendant intended to kill, the same was reversible error. Following House v. State, 75 Texas Crim. Rep., 338, and other cases.</p>

<p>Appeal from District Court, Limestone County; A. M. Blackmon, Judge.</p> <p>Eliza Boss was convicted of murder, and appeals.</p>

<p>Disloyalty Act—Practice on Appeal.</p> <p>In the absence of a statement of facts or bills of exception, the record on appeal showing a valid indictment under a valid law, the judgment below is affirmed.</p>

<p>Intoxicating Liquors—United States Soldiers—Insufficiency of the Evidence.</p> <p>Where, upon trial of knowingly purchasing, procuring for, selling, giving or causing to be given or delivered to any person engaged or enlisted in the military forces of the United States, any spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, the evidence was insufficient to sustain the conviction the judgment is" reversed and the cause remanded.</p>

<p>1. —Theft of Cattle—Evidence—Tracks—Opinion of Witness. '</p> <p>Where, upon trial of theft of cattle, the defendant complained that the court erred in permitting State’s witnesses to testify that the horse tracks which accompanied the tracks of the alleged stolen cattle were identical in size, shape and appearance with the tracks made by the horses of the defendant, in the presence of said witnesses, but the record showed that the witnesses first described the said horse tracks and showed their peculiarity, etc., there was no reversible error. Following Parker v. State, 46 Texas Crim. Rep. 461, and other cases. And it was not necessary for the witnesses to have qualified as experts. Following Thompson v. State, 45 Texas Crim. Rep., 397.</p> <p>2. —Same—Evidence—Other Transactions—Res Gestas—Rebuttal.</p> <p>Upon trial of theft of cattle, there was no error in admitting evidence that other cattle found in the field with those alleged to have been stolen, also belonged to the owner of said alleged stolen cattle, and had been taken a short time prior to the time alleged in the instant case; the defendant claiming that all these cattle were raised by defendant’s brother-in-law and sold to defendant, etc.</p> <p>3. —Same—Charge of Court—Limiting—Testimony—Weight of Evidence.</p> <p>Where, upon trial of theft of cattle, testimony was introduced by the State that other cattle th.an those alleged in the indictment were taken, at about the same time and place, the court properly instructed the jury limiting the same to a question of identity, intent and res gestae, and such a charge was not on the weight of the evidence. Following Carter v. State, 23 Texas Crim. App., 508, and other cases.</p> <p>4. —Same—Rule Stated—Limiting Testimony. .</p> <p>The rule is that the charge of the court must be so worded as to point out specifically the evidence which the court is so limiting, and that, without trespassing on the rule against expressing the court’s opinion as to the «•eight of such testimony, and where the' court’s charge in the instant case complied with this rule, there was no reversible error. Following Hemphill v. State, 72 Texas Crim. Rep., 638, and other cases.</p> <p>5. —Same—Charge of Court—Weight of Evidence.</p> <p>It is proper for the'court to assume as true, any fact which is not controverted, and where the court’s charge states that the State had introduced evidence that other cattle were taken and said statement was borne out by the undisputed evidence, the same was not a charge on the weight of the evidence. Distinguishing Cortez v. State, 74 S. W. Rep., 907; Cavaness v. State, 45 Texas Crim. Rep., 209.</p> <p>6. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of theft of cattle, the evidence sustained the conviction under a proper charge of the court there was no reversible erro.r.</p> <p>7. —Same—Rehearing—Weight of Evidence.</p> <p>Where, upon trial of theft of cattle, the State had introduced evidence that other cattle than those alleged in the indictment were taken, at about the same time and place, and the court instructed the jury that they could only consider such testimony to establish identity, the res gestae of the offense, or to prove the guilt of the accused by circumstances connected with the theft, or to show intent, and for no other purpose and that they could not convict defendant for the theft of any property than that named in the indictment, there was no reversible error. Citing Dunn v. State, 43 Texas Crim. Rep., 25, and other cases.</p> <p>8.—Same—Evidence—Tracks—Opinion of Witness—Rehearing—Rule Stated.</p> <p>The rule is in this and other States that a witness who has detailed peculiarities in the tracks on the ground which correspond with the proven or admitted tracks, the witness may give his opinion as to the similarity of the tracks. Following Crumes v. State, 28 Texas Crim. App., 516, and other cases, and in the instant case measurements of the tracks were not necessary as a predicate.</p>

<p>1. —Burglary—Sufficiency of the Evidence—Recent Possession.</p> <p>Where, upon trial of burglary, the evidence showed the recent possession by defendant of the alleged stolen property without sufficient explanation, and the evidence was otherwise sufficient to sustain the conviction there was no reversible error.</p> <p>2. —Identification—Stolen Property—Circumstantial Evidence.</p> <p>Where, upon trial of burglary the evidence showed that the defendant, shortly after the burglary, was found in possession of an overcoat exactly similar to the one which was taken from the burglarized store and which was not seen until defendant was arrested; was also found in possession when arrested of certain tools and keys with which entrance in said house could be affected, etc., the identification of the stolen goods, etc., was sufficient and a conviction is sustained.</p>

<p>1. —Theft—Female Juvenile—Delinquent Child—Practice on Appeal.</p> <p>Where defendant was convicted of felony theft on a plea of guilty, and thereupon another attorney presented a motion for new trial, alleging that the defendant was a female under eighteen years of age, and had not been informed of her right under the statute concerning delinquent children, to make this known to the court, and the court overruled the motion after hearing evidence thereon; the bill of exceptions not being filed within term time cannot be considered on appeal. Following Black v. State, 41 Texas Crim. Rep., 185.</p> <p>2. —Same—Rule Stated—Practice on Appeal—Presumption.</p> <p>When it appears that the trial court heard evidence in overruling the motion for new trial, the presumption is that the facts heard by him justified the conclusion which he reached, and unless the statement of facts or bill of exceptions, preserving the testimony heard on sai'd motion for new trial, is filed during the term at which the case is tried, the same cannot be considered on appeal. Following Probest, 60 Texas Crim. Rep., 609, and other cases.</p> <p>3. —Same—Statutes Construed—Delinquent Boys and Girls.</p> <p>Chapter 26 of the Acts of the Thirty-fifth Legislature Fourth Called Session, merely changes' certain portions of title seventeen of the Code of Criminal Procedure, and the sections not changed by chapter twenty-six are to be read in connection therewith, in ascertaining the -Legislative will touching delinquent boys and girls, and is to be construed as heretofore decided. Following McLaren v. State, 199 S. W. Rep., 811.</p> <p>4. —Same—Statutes Construed—Female Delinquent.</p> <p>The Act of the Legislature, amending title- seventeen, and known as chapter twenty-six, extending the same right to femal juveniles under the age of eighteen, as were heretofore extended to male juveniles, requires that the female juvenile under eighteen years of age charged with a felony, must file a statement in court advising the trial judge of her claim that she is a juvenile, or to exercise her option to be tried under the indictment for felony.</p> <p>5. —Same—Statutes Construed—Female Juvenile.</p> <p>Under Article 5229, Revised Civil Statutes, it is provided among other things that boys under seventeen years of age upon conviction of a felony, if the penalty is fixed at less than five years, the confinement shall be in the juvenile school, but-in the subsequent enactment mentioned, the Legislature failed to make provision applicable to girls similar to that made in said Article 5229 relating to boys, and there is no provision that authorizes the court to exempt from confinement in the penitentiary, a girl who is convicted of felony and has failed to avail herself of the option to be tried as a juvenile.</p>

<p>1. —Swindling—Life Insurance—Premium of Insurance—Challenge to the Array—Statutes Construed—Jury Commissioner.</p> <p>Article 5123 Revised Civil Statutes, providing that the same person shall not act as jury commissioner more than once during the same year, has been omitted in the codification; but besides, the same is only directory, in the absence of resulting injury, and there was no reversible error in failure to observe this statute, and in overruling the motion for challenge to the array to the jury.</p> <p>2. —Same—Statutes Construed—Fraudulent Representation—Insufficiency of the Evidence.</p> <p>Upon trial of making fraudulent representations to procure payment of premium of insurance, under Article 690 P. C., there must be in existence, when the fraudulent representations are made, an obligation to pay such insurance premium, and to constitute such obligation there must be a complete agreement, and where the facts in the instant case do not show such an obligation, the conviction could not be sustained.</p> <p>3.—Same—Fraudulent Representations—Promises as to Future Events—Buie Stated.</p> <p>The rule is that in cases dependent upon fraudulent representations that the same must not he mere false promises or professions as to future happenings or events, hut must relate to something present or past, and where this is not shown hy the evidence, under a prosecution of Article 690, P. C., the conviction cannot he sustained. ' ° .</p>

From Washington County. Original habeas corpus proceeding asking release from arrest under the disloyalty Act of the Thirty-fifth Legislature. The opinion states the case.

<p>The opinion states the case.</p>

<p>1. —Murder—Witness—Practice in District Court—Leading Questions.</p> <p>Where, upon trial of murder, a witness was summoned both by the State and the defendant but was not placed on the stand by the State, and the defendant thereupon moved the court to place him on the witness stand as he was an only eyewitness to the homicide, but the court refused such motion, tendering the witness to both the State and the defendant, whereupon, the State examined the witness in chief and the court refused to allow the defendant to ask leading questions on his cross-examination of the witness, the same was reversible error.</p> <p>2. —Same—Buie Stated—Practice in District Court—Introducing Witnesses— Cross-Examination.</p> <p>It might be better practice for the trial courts to introduce the witnesses, and neither side be held to vouch for them nor permitted to attack them in any way, hilt such is not the practice in this State or any other State within the court’s knowledge. The prosecuting attorney decides the order of the State’s testimony and what witnesses to introduce, and it is not for the court to deprive one side or the other of the valuable right of cross-examination.</p> <p>3. —Same—Practice in District Court—Eyewitnesses—Buie Stated.</p> <p>The State is not bound to introduce all or any of the eyewitnesses to a transaction, nor is direct evidence better than circumstantial evidence per se. The State must make out its case by competent evidence beyond a reasonable doubt, and there the trial rule stops. But when a witness is tendered to both parties and examined in chief by the State, the liberty of cross-examination by the defendant is not thereby curtailed.</p> <p>4. —Same—Evidence—Automatic" Pistol-—Noise—Smokeless Powder.</p> <p>Where, upon trial of murder, it became a question as to who fired the first shot, and a question arose as to whether an automatic pistol firing cartridges with smokeless powder would make much noise, and it was shown that the deceased had such pistol, the witness should have, been allowed to testify as to the noise made by the firing of such pistol.</p>

<p>Used—Charge of Court—Rule Stated.</p> <p>The rule is ¿hat in cases where the instrument used was not necessarily a deadly weapon, the court should charge the jury the substance of Article 1147, C. C. P., to the effect that if there was no intent to kill, and the instrument was not a deadly weapon in the manner used, that the jury might find the accused guilty of an aggravated assault, and where this is not done, as in the instant case, the same is reversible error. Following Crow v. State, 55 Texas Crim. Rep., 202, and other cases.</p> <p>2.—Same—Self-Defense—Right of Going Armed—Charge of Court.</p> <p>The court having given a charge on the law of self-defense, without in any way qualifying it, there was no error in refusing to instruct the jury that defendant had a right to arm himself and seek the deceased for an explanation. Following Williford v. State, 38 Texas Crim. Rep., 397, and other cases.</p> <p>3.—Same—Deadly Weapon—Charge of Court—Presumption.</p> <p>Where, upon trial of murder, there was no evidence that the knife used by the deceased was a deadly weapon, there was no error .in the court’s failure to instruct the jury on the presumption of intent to kill by the deceased, arising by the use by him of a deadly weapon.</p>

<p>Theft of Cattle—Possession—Ownership—Lien for Rent.</p> <p>Where, upon trial of theft of cattle, the possession and ownership was alleged in the name of the real owner, but the proof showed that the cattle ■ were taken from the possession of a jiarty who had them in his pasture under a rental contract from the real owner, and under whose control the cattle were and upon which he held a lien for pasturage, ownership should have been alleged in the name of said last person, or the possession alleged in him as special owner, and the judgment must he reversed and the cause remanded. Following McKnight v. State, 70 Texas Crim. Rep., 470, and other cases.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

From Dallas County. Original habeas corpus proceedings asking discharge from arrest as witnesses refusing to answer questions before grand jury, under judgment of contempt.

<p>1. —Embezzlement—Sufficiency of the Evidence.</p> <p>Where, upon trial of embezzlement, the evidence sustained the conviction there was no reversible error.</p> <p>2. —Same—Evidence—Incorporation—Charter—Oral Testimony.</p> <p>Where, upon trial of embezzlement, the owner was alleged to be an incorporated company, there was no error in permitting the attorney of the company to testify without objection that he procured the charter of said company, and handing him a copy of the said charter which was then introduced in evidence and which was duly certified by the secretary of State. Following Zweig v. State, 74 Texas Crim. Rep., 306, and other cases.</p> <p>3. —Same—Evidence—Confessions—Itemized Statement.</p> <p>Upon trial of embezzlement, there was no error in admitting testimony of the manager, of the corporation whose goods were embezzled, that he put defendant in charge as agent, and manager of said business, and that defendant confessed to him that he had embezzled certain money of the corporation, and to permit him to introduce in evidence an itemized statement as to defendant’s defalcations and which defendant signed before he was arrested. Following Leach v. State, 46 Texas Crim. Rep., 507, and other cases.</p> <p>4. —Same—Evidence—Circumstantial Evidence.</p> <p>Upon trial of embezzlement, there was no error in admitting in evidence the sales slips evidencing the money which defendant had embezzled, and to permit the,banker to testify that defendant deposited money on individual account, etc.</p> <p>5. —Same—Charge of Court—Theft—Embezzlement.</p> <p>Where, upon trial of embezzlement the evidence showed that defendant as the agent of an incorporated company embezzled some of its funds, the . evidence sustained the conviction and the contention-of the defendant chat if he was guilty of any offense it was that of theft and not embezzlement was untenable. Following Johnson v. State, 71 Texas Crim. Rep., 206, and other cases, however, if the act of defendant constituted theft this was no reason why it should not also constitute embezzlement. Following Wilson v. State, 47 Texas Grim. Rep., 159, and other cases.</p> <p>6. —Same—Charge of Court—Felony—Misdemeanor.</p> <p>Where the facts did not call for any charge of the court on embezzlement of less than fifty dollars, there was no error in the court’s failure to submit a charge thereon. Following Lawshe v. State, 57 Texas Crim. Rep., 32.</p>

<p>1. —Burglary—Insufficiency of the Evidence.</p> <p>Where, upon trial of burglary, the conviction depended upon the possession by the defendant' of a certain pocket-knife alleged to have been taken from the burglarized house, but it was not shown whether the knife -was found in defendant’s, possession before or after the burglary, and the evidence was otherwise insufficient to sustain the conviction, the judgment must be reversed, and the cause remanded.</p> <p>2. —Same—Facts Stated in Original Opinion—Rehearing.</p> <p>1 Where, upon inspection of the record on motion for rehearing, certain facts were not correctly stated in the original opinion, the same is now here corrected; however, this has no important bearing in the case, and the motion for rehearing by the State is overruled.</p>

<p>The opinion states the case.</p>

<p>Murder—Manslaughter—Evidence—Undisclosed Motive.</p> <p>Upon trial of murder, and a conviction of manslaughter, it was reversible error to admit testimony of the wife of the deceased, that after having an altercation with the defendant, some time before the homicide, the deceased had left the premises and in a conversation between deceased and his wife said that he would go to the post-office and then meet her at the restaurant, where the homicide occurred, in order to explain his presence there, this undisclosed intent, attributed to the deceased, not being known to the defendant. Following Adams v. State, 44 Texas Crim. Rep., 66, and other cases.</p>

From Harris County. Original habeas corpus proceedings, asking release from detention by the city health officers at the city farm for venereal diseases.

<p>The opinion states the case.</p>

<p>Appeal from Palo Pinto County Court; W. F. Smith, Judge.</p> <p>J. R. Emberline was convicted of violating the tick eradication statute, and he appeals.</p>

<p>Recognizance—Practice on Appeal.</p> <p>Where the recognizance did not bind the appellant to abide by the decision of the Court of Criminal Appeals of Texas, etc., the same was defective, and the appeal must be dismissed.</p>

<p>1.—Murder—Jury—Jury Law—Challenge for Cause.</p> <p>c In the absence of anything which would show that the juror was subject to a challenge for cause; that he'was excused on peremptory challenge; that no objectionable juror was forced on the defendant, who failed to exhaust his peremptory challenges, there was no reversible error. Following Hudson v. State, 28 Texas Crim. App., 338, and other cases.</p> <p>2. —Same—Jury and Jury Law—Peremptory Challenge.</p> <p>Where the court offered to restore a challenge for cause, where the juror was excused upon peremptory challenge, and the court followed the correct procedure under the statute, there was no error. Following Cannon v. State, 59 Texas Grim. Rep., 405.</p> <p>3. —Same—Evidence—Cross-Examination.</p> <p>Where defendant claimed self-defense, there was no error in his cross-examination to permit the State to ask the question whether he shot -in self-defense when he shot deceased when he was crawling on his hands, to which other State's witnesses had testified. Following Weaver v. State, 68 Texas Crim. Rep., 214, 150 S. W. Rep., 785, and other cases.</p> <p>é.—Same—Evidence—Practice on Appeal.</p> <p>Where the bill of exceptions related to the exclusion of testimony which was subsequently admitted, there was no error.</p> <p>5. —Same—Evidence—Leading Questions.</p> <p>The inquiry as to the appearance of defendant, as to whether he was excited or irritated, was not objectionable as leading. Following Cannon v. State, 59 Texas Crim. Rep., 398, and other cases.</p> <p>6. —Same—Jury and Jury Law.</p> <p>The failure to swear all the jurors at one and the same time was an irregularity which was not available, when raised for the first time on motion for new trial. Following Jones v. State, 37 Texas Crim. Rep., 434, and other cases.</p> <p>7.—Same—Suspended Sentence—Harmless Error.</p> <p>Where the defendant was convicted of murder, the suspended sentence law was not applicable, and the court’s ruling that the application for submission of that issue came too late was harmless. Distinguishing Wilson v. State, 210 S. W. Rep., 802.</p> <p>8.—Same—Provoking Difficulty—Theory of Defense—Intent.</p> <p>Where, upon trial of murder, the defendant insisted that if it be conceded, that defendant’s conduct and language were reasonably calculated to provoke the difficulty, yet that his declaimer of intent to do so would preclude the right to submit this issue to the jury, but the evidence showed his intent from other circumstances and facts which the jury must consider, and which took place before the time of the homicide, there was no error in the court’s action in submitting the law on provoking the difficulty. Following McGrew v. State, 49 S. W. Rep'., 227, and other cases.</p> <p>9. —Same—Charge of Court—Murder—Manslaughter.</p> <p>Where, upon trial of murder, the evidence was such that the question as to defendant’s mind, whether it was incapable of cool reflection, was for the jury, there was no error in also submitting a charge on murder.</p> <p>10. —Same—Evidence—Leading Questions.</p> <p>The question, "Was McDaniel looking in the direction of Moore?’’ does not suggest the answer desired and was not leading. Following Moore v. State, 49 Texas Crim. Rep., 502, and other cases.</p> <p>11. —Same—Evidence—Rebuttal—Bill of- Exceptions.</p> <p>Where the receipt of testimony though out of its order was a matter within the discretion of the trial judge, there was no reversible error. Neither was the admission of evidence which is not set out in the bill of exceptions.</p> <p>12. —Same—Manslaughter—Charge of Court—Self-Defense.</p> <p>Where the reference to self-defense in the court’s charge on manslaughter was not an attempt to define self-defense but simply directed the jury’s attention to the fact that they would bear it in mind, the complaint that the charge on manslaughter was unduly restrictive of defendant’s right of self-defense, is untenable.</p>

Tried below before the Hon. C. A. Pippen. Appeal from a conviction of passing a forged instrument; penalty, two years imprisonment in the penitentiary.

<p>Murder—Principal—Circumstantial Evidence—Charge of Court.</p> <p>Where, upon trial of murder, the evidence was circumstantial, there being no direct proof that the defendant took part in the homicide, and the inference drawn from the existence of the fact that he aete.d as a principal could only be made from the circumstances in the case, the court’s failure to charge on circumstantial evidence duly excepted to at the time before the charge was given was reversible error. Following Lesly v. State, 42 Texas Crim. Rep., 65; Early v. State, 50 Texas Crim. Rep., 344, and other cases. Distinguishing Dennis v. State, 71 Texas Grim. Rep., 163.</p>

<p>The opinion states the case.</p>

<p>1. —Carrying Pistol—Notice of Appeal.</p> <p>Where the record on appeal was defective as to showing notice of appeal properly entered on the minutes of the court, and the appeal was dismissed, the same is reinstated after the record in this behalf had been perfected.</p> <p>2. —Same—Carrying Pistol—Insufficiency of the Evidence—Own Premises.</p> <p>Where, upon trial of unlawfully carrying a pistol, defendant at the time of carrying the pistol was on his own premises upon which he was a tenant, the conviction could not be sustained. Following Fuller v. State, 56 Texas Crim. Rep., 449 ,and other cases.</p>

<p>1. Criminal Law <g=C08Y(l) — Notice or Appeal — Entry on Minutes oe Court.</p> <p>Where transcript contained copies of the appeal and recognizance, and clerk’s certificate was to effect that it contained a correct transcript of trial proceedings, but where there was nothing to show an entry on the minutes of the court of the notice of appeal or the recognizance, as required by law, a motion to dismiss the appeal will be sustained.</p> <p>On Motion for Rehearing.</p> <p>2. Weapons <§=>9 — Carrying Pistol — Evidence.</p> <p>In a prosecution for unlawfully carrying a pistol, wherein defendant claimed that he heard a noise behind his house and took his pistol, and ran out the back door some 50-feet, where he met the officers and was arrested, and that the arrest was made on his own rented premises, evidence held not to sustain a conviction.</p> <p>3. Weapons <©==>9 — Carrying Weapons.</p> <p>One has a right to have a pistol upon his-own premises.</p>

<p>The opinion states the case.</p>

<p>1. —Vagrancy—Sufficiency of the Evidence.</p> <p>Where, upon trial of vagrancy, alleging that the defendant was a common prostitute, etc., the evidence was sufficient to sustain the conviction, there was no reversible error.</p> <p>2. —Same—Evidence—General Reputation—House of Ill-Fame,</p> <p>While the rule is that the fact that defendant was a common prostitute can not be established by proof of her reputation as such or of the reputation of the house in which she lived, yet where the allegation is that the house she kept was a disorderly one, evidence of its general reputation as such,' while not sufficient alone to establish the fact, is admissible. Following Forbes v. State, 35 Texas Crim. Rep., 25, and other cases.</p> <p>3. —Same—Charge of Court—Objections—Misdemeanor.</p> <p>The rule in misdemeanor cases requires that omissions in the charge of the court shall be supplied by requested charges and in the absence of such charges, there was no reversible error.</p>

<p>Aggravated Assault—Plea of Guilty—Mistake—Motion for New Trial.</p> <p>Where, upon trial for aggravated assault, the defendant pleaded guilty thereto, under a misunderstanding with the County Attorney, and an excessive fine was imposed by the trial judge upon information which he privately gathered outside of court and not from sworn witnesses confronting the defendant with a right of cross-examination, the motion for new trial should have been granted, although this is a misdemeanor.</p>

<p>1. —Burglary—Sufficiency of the Evidence.</p> <p>Where, upon trial of burglary, the evidence sustained the conviction, there was no reversible error.</p> <p>2. —Same—Other Offenses—Confessions—Suspended Sentence.</p> <p>Where, upon trial of burglary, the defendant made unwritten confessions which led to the finding of the stolen goods, and his declaration as to other burglaries were pertinent to the issue of suspended sentence, there was no reversible error.</p>

<p>1. —Threatening Life—Sufficiency of the Evidence.</p> <p>Where, upon trial of seriously threatening the life of another, the evidence sustained the conviction, there was no reversible error.</p> <p>2. —Same—Other Offenses—Rule Stated.</p> <p>It is only when proof of the collateral offense is such as that the jury might use it improperly that it is necessary to limit the purpose for which such evidence was introduced, and there was no error in facing .to limit testimony ot other threats in the absence oí. any exception. Following Buckley v. State, 70 Texas Crim. Rep., 550, and other cases.</p>

<p>Delinquent Child—Jurisdiction—Juvenile Court.</p> <p>Where relator appealed from an order of the District Court of Dallas County, denying his application for a writ of habeas corpus, which was based upon the proposition that the County Court at Law of Dallas County No. 2, was denied jurisdiction to render judgment as a juvenile court, contending that the said County Court at Law was without jurisdiction, the same is untenable and the judgment is affirmed.</p>

<p>1. ;—Murder—Charge of Court—Provoking Difficulty.</p> <p>Where, upon trial of murder, it was doubtful whether the issue of provoking the difficulty was in the case, and the issue was rather as to who began the difficulty, a charge of the court which assumed the fact that defendant did provoke the difficulty for the purpose of killing deceased, etc., was reversible error.</p> <p>2. —Same—Verbal Charge—Practice in District Court.</p> <p>While the bill of exceptions to a verbal charge or address of the court delivered to the jury while testing their Qualifications, is probably not reversible error in the instant case, yet it is well enough to emphasize that trial courts should not indulge in addresses of such character as shown by the bill of exceptions.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Murder—Habeas Corpus—Bail.</p> <p>Where, upon trial of a writ of habeas corpus, the relator was charged with a capital offense, the evidence showed that relator was entitled to bail, the same is granted.</p>

<p>1. —Murder—Change of Venue—Statutes Construed.</p> <p>While the statutes relating to a change of venue contain provisions prescribing means for either side to obtain a change of venue, these provisions, however, are not limitations upon the power vested in the trial court to change the venue on its own motion, when the judge is satisfied that a trial alike fair and impartial to the State and the appellant, cannot be had. Following Bohannon v. State, 14 Texas Crim. App., 272.</p> <p>2. —Same—Continuance—Order of Court—Change of Venue—Harmless Error.</p> <p>Where the defendant, before the order changing the venue was entered, made an application for a continuance, and in his order granting the change of venue the court stated that the order for continuance was vacated, without making a formal separate order, this irregularity under the circumstances was harmless. Following Blankston v. State, 80 Texas Crim. Rep., 629, 192 S. W. Rep., 1064.</p> <p>3. —Same—Arraignment—Practice in District Court.</p> <p>While the failure to arraign the defendant in the District Court of the County from which the venue was changed was irregular, yet where an arraignment was entered in the county to which the venue was changed, there was no reversible error. Following Goode v. State, 57 Texas Crim. Rep., and other cases.</p> <p>4. —Same—Reproduction of Testimony—Rule Stated.</p> <p>Where it was shown that a State’s witness had given testimony at the examining trial, and had since died, and it appeared that said witness was cross-examined in the interest of the defendant, there was no error in the reproduction of his testimony. Following Young v. State, 199 S. W. Rep., 479, and other cases.</p> <p>5. —Same—Evidence—Expert Witness—Study of Books.</p> <p>Where it was objected that the physician, in testitfying as to the location of the wound upon deceased body, had no practical experience but based his opinion upon his information gained from the study of the medical authorities on gun-shot wounds, the same was untenable and there was no error. Following Rice v. State, 49 Texas Crim. Rep., 569, 94 S. W. Rep., 1029.</p> <p>6. —Same—Evidence—Declarations of Third Parties—Antecedent Quarrels.</p> <p>Upon trial of murder, testimony as to the remarks made by the deceased and defendant’s brother, and to the transaction at a ball game leading up to the difficulty, and the antecedent quarrels before the homicide were admissible in evidence.</p> <p>7. —Same—Cross Examination—Remarks by Court—Weight of Evidence.</p> <p>Where a witness for the defendant had given important testimony for the defense, and State’s counsel sought to lay a predicate to impeach him, and for this purpose asked him if he had not given certain testimony before the grand jury, to which the witness replied that .he did not remember, and upon repeating the question and a like answer the trial judge told the witness he must answer the question, to which the witness replied that he did not remember, and the court then said, “You certainly know whether you told the grand jury, and while I dislike harsh measures, etc., it occurs to me that you can answer that question,” the same was an expression of an opinion by the court as to the credibility of the witness and the weight of his evidence, and was reversible error. Following Taylor v. State, 38 Texas Crim. Rep., 241, and other cases.</p> <p>8. —Same—Charge of Court—Self-Defense—Degree of Force.</p> <p>Where, upon trial of murder, the charge of the court on self-defense and the defense of another was fair and accurate, the expression that the defendant must not use more force than was necessary being a general statement was not reversible error. Following Moss v. State, 60 Texas Grim. Rep., 272.</p> <p>9. —Same—Rehearing—Remarks by Court—Reversible Error.</p> <p>Where the State’s counsel pressed defendant’s witness in an effort to secure from him an admission that in his testimony before the grand jury he had made false statements, and sought and obtained opportunity to correct them, and in doing so, when the witness insisted that his recollection was at fault, the court interposed with the statement, “You certainly know whether you told the grand jury that or not,” and subsequently threatened the use of harsh measures, and made it plain to the jury that the witness willfully prevaricated; the witness having given important testimony favorable to the defendant, such remarks by the court was reversible error. Following Simmons v. State, 55 Texas Crim. Rep., 444, and other cases. Distinguishing Laon v. State, 69 Texas Crim. Rep., 221, 153 S. W. Rep., 305; Bankston v. State, 80 Texas Crim. Rep., 225, 189 S. W. Rep., 142.</p>

<p>Appeal from the District Court of Kaufmann. Tried below before the Hon. Joel R. Bond.</p> <p>Appeal from a conviction of receiving and concealing stolen property; penalty, two years imprisonment in the penitentiary.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1.—Operating For Hire Auto Truck Without License—Insufficiency of the Evidence.</p> <p>Where, upon trial of operating for hire an auto truck without first obtaining license, under the Act of the Thirty-fifth Legislature, the evidence failed to show a violation of this statute, the conviction could not be sustained.</p> <p>2.—Same—Automobile Chauffeur—License—Insufficiency of the Evidence.</p> <p>Under the Act of the Thirty-fifth Legislature requiring license to operate a motor .vehicle as a chauffeur, it is necessary that in order to bring it within the class of chauffeurs as defined in said Act, that he must operate the motor vehicle as such for compensation, wages or hire, and this would apply directly to the fact or relation of driver of the vehicle for such compensation, etc., and would exclude the idea that the vehicle or auto was used as an incident for delivering goods; and where the evidence showed that the defendant was an employee and drove the auto truck to deliver goods for his principal, there was no violation of the law.</p>

<p>1. —Final Sentence—Practice on Appeal.</p> <p>Where, the record on appeal failed to show final sentence, the appeal must be dismissed. However, this defect having been remedied the case is heard on its merits. " '</p> <p>2. —Same—Theft of Hogs—Circumstantial Evidence—Insufficiency of the Evidence.</p> <p>Where, upon trial of theft of hogs, the identification of the alleged stolen property was insufficient, and the defendant’s claim was that the alleged hogs belonged to his wife, and the evidence was otherwise insufficient to sustain the conviction, the judgment is reversed and the cause remanded.</p>

<p>The opinion states the case.</p>

<p>1. —Local Option—Intoxicating Liquors—General Reputation—Contradicting Witness—Other Offenses.-</p> <p>Where, upon trial of a violation of the local option law and selling intoxicating liquors in violation thereof, no attack had been made by the defendant upon the credibility of the State’s witness who was supported by proof of his good reputation, it was reversible error to permit the State to interrogate him on matters not connected with any evidence developed by the defendant. Following Campbell v. State, 62 Texas Crim. Rep., 561, and other cases.</p> <p>2. —Same—Bolstering Up Witness—General Reputation—Rule Stated.</p> <p>The bolstering up of a State’s witness by proof of his general reputation under circumstances as presented in the instant case was unauthorized and reversible error. Following Britt v. State, 21 Texas Crim. App., 221 and other cases.</p>

<p>1. —Murder—District Court—Transferring Case.</p> <p>Where the court was not in existence by law, in such a way as to authorize the transferring of cases to it for adjudication, an order of such transfer was without authority.</p> <p>2. —Same—Appeal Pending—Order of District Court—Transfer.</p> <p>Where the case was pending on appeal in this court, the court from which the appeal was taken is powerless to enter an order of transfer of the case to another court for adjudication. Following Saufley v. State, 48 Texas Crim. Rep., 563, and other cases.</p> <p>3. —Same—Dying Declarations—Conclusion of Witness—Predicate.</p> <p>Where the predicate laid to the dying declaration, as well as the manner of taking the statement and writing it down was not in compliance with the law, but was rather a conclusion of the witnesses and the writer of the statement as to what the substance of the declaration was, and some of the statements of the deceased were not dying declarations, the same should not have been introduced in evidence. Following: Cravens v. State, 49 Texas Crim. Rep., 78, and other cases.</p> <p>4. —Same—Hearsay Evidence—Dying Declaration.</p> <p>Where the dying declarations are intermingled with hearsay statements of witnesses, the same are inadmissible in evidence.</p> <p>5. —Same—Dying Declaration—Sufficiency of Predicate.</p> <p>Upon trial of murder depending upon dying declaration the court erred in not submitting to the jury the sufficiency of the predicate, in order that they might consider the declaration; there being a doubt about the sufficiency of the predicaté laid.</p> <p>.6.—Same—Manslaughter—Charge of Court.</p> <p>Where, upon trial of murder, the evidence suggested manslaughter, all doubts as to the degree of homicide suggested by the evidence m.ust be resolved in favor of the accused, and in the instant case the court should have submitted a charge on the law of manslaughter.</p>

<p>Theft—Ownership—Possession—Variance.</p> <p>Where, upon trial of theft of certain seed cotton, the indictment alleged ownership in the person who owned the farm upon which the cotton was raised, and the evidence showed that the cotton was not upon the premises under the control of said owner nor in his possession but was on the premises he had rented to another under whose care, management, and control it was at the time it was taken, the variance between the allegation and the proof as to ownership and possession was fatal, and reversible error. Following Hall v. State, 22 Texas Crim. App., 632, and other cases.</p>

<p>1. —Local Option—Enhanced Punishment—Indictment—Same Offense.</p> <p>Where, upon trial of a violation of the local option law, under Article 1620, Branch’s Ann. P. C., alleging repetition of the offense, defendant was given a life sentence, and defendant’s motion in arrest of udgment was overruled. Held, that the motion should have been sustained, as the indictment was not sufficient in its allegations of a repetition of the offense. Following Kinney v. State, 45 Texas Crim. Rep., 500, and other cases.</p> <p>2. —Same—Pleading—Description of Offense.</p> <p>Where the indictment charged that the three convictions mentioned in the second count, or enhancing allegations, were for unlawfully selling intoxicating liquors, the same did not charge a violation of the law, as selling intoxicating liquors is not an offense eo nomine.</p>

<p>The opinion states the case.</p>

<p>1—Rape—Insufficiency of 'the Evidence.—Death Penalty.</p> <p>Where, upon trial of rape by force, the evidence showed that the defendant was a colored man, and the prosecutrix a white woman, and the circumstances surrounding the alleged crime were such as to leave grave doubt upon the sufficiency of the evidence, a conviction for such offense, assessing the death penalty cannot be sustained.</p> <p>2.—Same—Motion for Rehearing—Reputation for Chastity.</p> <p>Where, upon trial of rape by force, there was no effort made on behalf of the State to produce any witness to testify in rebuttal of the evidence with regard to the reputation of the prosecutrix for chastity, - truth and veracity, and that it was shown that prosecutrix associated constantly with negroes of both sexes, visiting with them, eating with them, and treating them on terms of equality, this court cannot sustain a conviction for rape by force inflicting the death penalty; especially where the State had opportunity to procure witnesses in rebuttal to these facts, and to show by other testimony direct or circumstantial that the offense was in fact committed. Following Sharp v. State, 81 Texas Crim. Rep., 256, 197 S. W. Rep., 209.</p> <p>3.—Same—Rape—Death Penalty—Excessive Verdict—Consent.</p> <p>Where, upon trial of rape hy force, it appeared that the prosecutrix was of easy virtue, and associated indiscriminately with men both white and black, the defendant should have been permitted to show' specific acts of immorality on the part of the prosecutrix, to affect her credibility and as bearing upon the question of consent. Following Bigliben v. State, 68 Texas Crim. Rep., 530, 151 S. W. Rep., 1044, and other cases.</p>

<p>1.—Murder—Manslaughter—Charge of Court—Practice in District Court.</p> <p>Where the reading to the jury of an additional charge of the court, after the argument of counsel was concluded, was agreed to by defendant’s counsel, a complaint of that fact in the motion for new trial was correctly overruled. Following Nowlin v. State, 76 Texas Grim. Rep., 480, 175 S. W. Rep., 1070.</p> <p>2.—Same—Manslaughter—Charge of Court.</p> <p>Where, upon trial of murder, and a conviction of manslaughter, the evidence raised the issue of manslaughter, the court correctly charged the law on that offense, there was no reversible error.</p> <p>3.—Same—Manslaughter—Adequate Cause—Charge of Court.</p> <p>Where, upon trial of murder, the evidence showed that the killing was either murder or manslaughter, and the court charged on both offenses and also instructed the jury to acquit the defendant if he fired accidentally, there was no error; especially in that part of the charge where the court instructed the jury that unless they believed the killing was upon malice aforethought they would not convict him either of murder or of manslaughter, as this was more favorable than the. facts warranted, nor was other objections just grounds of complaint in other portions of the court’s charge, and the evidence supporting the conviction, there is no reversible error.</p> <p>4.—Same—Requested Charge.</p> <p>There was no error, under the facts in the instant case, in the court’s refusal to submit a requested charge to the effect that if the defendant shot to stop or scare away a strange man, etc., that he would not be guilty.</p> <p>5.—Same—Re-hearing—Whole Charge Must Be Considered.</p> <p>This Court will look to the entire charge of the trial court in determining the deficiency of any particular portion therof, and applying this rule in the instant case appellant’s complaint to the court’s charge on manslaughter, as being too restrictive is not well taken, but the same is applicable to the facts, and there is no reversible error.</p>

<p>The opinion states the case.</p>

<p>1.—Murder—Notice of Appeal—Practice on Appeal.</p> <p>Where, upon appeal, the record disclosed that' the same failed to show that any notice of appeal was entered of record in the minutes of the court below, the appeal must be dismissed. Following Young v. State, 60 Texas Grim. Rep., 209. However, where the defects in the record were thereafter remedied, the appeal is reinstated.</p> <p>2.—Same—Evidence—Dying Declarations—Predicate.</p> <p>Where, upon appeal from a conviction of murder, it appeared from the record that deceased was told by his medical attendant that he must die, that he sent for a minster who administered the dying sacraments; that the deceased was suffering intensely and was shot through the stomach; that he talked to his brother about his business and expressed commiseration for his wife and children, all of which indicated his consciousness of approaching death at the time of his statement that he was shot by the defendant, etc., the same was admissible in evidence as a dying declaration. Following Miller v. State, 27 Texas Grim. Rep., 63, and other cases.</p> <p>3. —Same—Rule Stated—Dying Declarations.</p> <p>In order to make a dying declaration admissible in evidence the deceased must not only be in a dying condition but he must actually believe that he is so. This may be inferred from the statement of the party and also from the nature of the wound and other circumstances. Following Krebs v. State, 3 Texas Grim. App., 348, and other cases.</p> <p>4. —Same—Manslaughter—Charge of Court—Adequate Cause—Insulting Words.</p> <p>Where, upon trial of murder, the court’s charge on manslaughter applied the law to the facts in the case, and instructed the jury that insulting words or gestures were not adequate cause, there was no reversible error. Following: Wood v. State, 71 Texas Grim. Rep., 398, 159 S. W. Rep., 1183, and other cases; especially in the instant case, where defendant denied that such'language of the deceased affected him in any way but that he acted in self-defense.</p> <p>5.—Same—Self-Defense—Charge of Court—Requested Charge.</p> <p>Where, upon trial of murder, the court gave a correct charge under the law of self-defense as applicable to the facts in the case, there was no error in the court’s refusal to submit a requested charge as to defendant’s right to act in his self-defense against any danger or apparent danger which theory was not raised by the evidence.</p>

<p>The opinion states the case.</p>

<p>Habeas Corpus—Bail—Practice on Appeal—Former jeopardy.</p> <p>Where relator was admitted to bail tor the offense of murder, and subsequently indicted for the offense of robbery by the use of firearms, claimed to grow out of the same transaction and was refused hail for said latter offense, this court on writ of habeas corpus will not pass upon the question of fact as to whether these offenses are one and the same transaction, and will not pass upon the question of former jeopardy, but following precedent will admit relator to bail. Following Jones v. State, 200 S. W. Rep., 1086.</p>

<p>1. —Murder—Mandamus—Transcript—Stenographic Reporter.</p> <p>Where it appeared, upon appeal from a conviction of murder, that the stenographic reporter had refused to make out a transcript of his notes of all the evidence introduced upon trial, as required by statute, and the court below had refused appellant’s petition requiring said reporter to make such transcript, a writ of mandamus is issued by this court requiring him to do so. Following Ex Parte Fread, 204 S. W. Rep., 113.</p> <p>2. —Same—Statement of Facts—Trial Judge—Rule Stated.</p> <p>It is uniformity held by this court that a statement of facts must be approved by the judge before whom the case is tried. Following Richardson v. State, 71 Texas Grim. Rep., 717, and other cases. But this defect having been remedied the case is heard upon its mertis.</p> <p>3. —Same—Newly Discovered Evidence—Affidavit.</p> <p>Where the claim of newly discovered evidence set up in the motion for new trial, is not properly sustained by affidavits or evidence before the trial court, the same cannot be considered on appeal.</p> <p>4. —Same—Bill of Exceptions—Charge of Court.</p> <p>Where, upon trial of murder, the evidence was sufficient to sustain the conviction, the court’s refusal to peremptorily instruct the jury to return a verdict of acquittal was proper.</p> <p>5. —Same—Circumstantial Evidence—Bill of Exceptions—Charge of Court.</p> <p>Where, upon trial of murder, the evidence did not raise the issue of a charge of circumstantial evidence, there was no error in the court’s refusal to give such charge; besides the bill of exceptions upon this question was defective.</p> <p>6. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder, and a conviction of said offense the evidence was sufficient to, sustain the same, there was no reversible error.</p> <p>7. —Same—Rehearing—Circumstantial Evidence—Charge of Court.</p> <p>Where, upon trial of murder, and a conviction of said offense the record on appeal showed that there were three witnesses present at the time defendant shot the deceased, and a number of witnesses testified that shortly thereafter the body of the deceased was found dead a short distance away as the result of a pistol shot, there was no reversible error in the court’s refusal to charge on circumstantial evidence.</p>

<p>Criminal Law &wkey;>1097(4) — Appeal—Questions Reviewable — Statement oe Facts.</p> <p>On appeal from a conviction, complaint of the insufficiency of the evidence cannot be considered by the Court of Criminal Appeals, in the absence of a statement of facts.</p>

<p>1. Larceny <&wkey;62(l) — Evidence — Sufficiency.</p> <p>In- a prosecution for theft, evidence as to ownership, loss of property, and defendant’s connection therewith held sufficient to show a taking thereof by defendant.</p> <p>2. Criminal Law <&wkey;1038(2, 3) — Appeal-Instruction — Objection and Request.</p> <p>Failure to charge on circumstantial evidence is not reversible error, where no objection is taken to the court’s charge, nor a special instruction presented.</p> <p>3. Criminal Law <&wkey;»1169(l) — Objections to Evidence.</p> <p>Error in a criminal ease may not be predicated on the admission of evidence, where similar evidence has been admitted without objection.</p> <p>4. Criminal Law <®^338(3) — Evidence—Admissibility.</p> <p>In a larceny prosecution, that an officer identified the purse stolen as the purse identified by a witness, when as a matter of fact such purse was not identified, does not render such evidence inadmissible.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Prom Galveston County. Original habeas corpus proceedings, asking release of relator under indictment charging her of unlawfully soliciting, under the Act of the Thirty-fifth Legislature.

<p>1. —Murder—Manslaughter—Evidence—Wounds—Practice in District Court.</p> <p>Where, upon trial of murder and a conviction of manslaughter, it appeared from the evidence, that there had been a prior difficulty between the parties and their companions, in which one of the latter who was with deceased received some wounds on the back inflicted by the defendant, about which there was no issue or dispute, it was reversible error to permit this companion of the deceased to take off his clothes and exhibit to the jury the scars of the wounds on his back.</p> <p>2. —Same—Evidence—Conduct of District Attorney.</p> <p>Where, upon trial of murder and a conviction of manslaughter, the district attorney propounded all kinds of questions about the collateral matters and conversations, the answers to most of which were inadmissible in evidence, and thereafter in his argument traveled outside of the record, and thus in an indirect way got matters before the jury which were entirely outside of the record, and defendant’s punishment was very likely enhanced thereby, the same was reversible error.</p>

<p>1.—Murder—Continuance—Contest of Application.</p> <p>It is permissible under the statute for the State to traverse an application for continuance on the question of diligence, but not for the purpose of showing that the absent witnesses were not present at the scene of the difficulty; besides, the court should have permitted the filing of defendant’s supplemental motion for a continuance, and if the facts therein stated were true and not controverted by the State, the case should have been postponed or a change of venue ordered, under the facts of the instant case, where the record showed that defendant was a negro and the deceased a white man, and that race feeling and prejudice played a prominent part in the disposition of the case; the judgment is therefor reversed and the cause remanded.</p> <p>2. —Same—Practice in District Court—Jury Commission—Rules of the Street Car Company.</p> <p>There was no error in refusing to quash the indictment because no negroes were on the jury commission or the grand jury; and there was no error in not submitting a charge with reference to the rule of the Street Gar Company.</p> <p>3. —Same—Rehearing—Practice on Appeal.</p> <p>In capital cases this court will assume more latitude in dealing with technicalities than in ordinary felony cases, and in the instant case, where the circumstances surrounding the trial were such as to satisfy this court, that the trial was affected by prejudice and feeling, the judgment will be reversed and the cause remanded.</p> <p>4. —Same—Practice on Appeal.</p> <p>Where, upon motion for rehearing it appeared that a part of the original opinion was probably erroneous the same will be withdrawn, otherwise the motion for rehearing by the State is overruled.</p>

<p>The opinion states the case.</p>

<p>1. —Theft of Automobile—Accomplice—Corroboration.</p> <p>See -opinion on the question of corroboration of accomplice testimony, upon which there is a difference on opinion.</p> <p>2. —Same—Circumstantial Evidence—Charge of Court.</p> <p>Where, upon trial of theft of an automobile, the evidence was such as to require a charge on circumstantial evidence, the court’s failure to do so is reversible error.</p>

<p>1.—Murder—Manslaughter—Self-Defense—Charge of Court.</p> <p>Where, upon trial of murder, and a conviction of manslaughter, the evidence showed that the defendant was making an assault upon the deceased before the latter made any demonstration, and that he intended to kill him because of the insulting conduct toward his wife, there was no reversible error in the court’s failure and refusal to charge on self-defense. Following Doss v. State, 43 Texas Crim. Rep., 552, and other cases.</p> <p>2.—Same—Evidence—Cross-Examination.</p> <p>Where, in the light of the qualification to the bill of exceptions complaining of the unauthorized cross-examination of the defendant’s wife, no error was disclosed, nor in the cross-examination of another witness, there was no reversible error.</p> <p>S.—Same—Evidence—Declaration and Acts of the Deceased—Uncommunicated Threats.</p> <p>In the absence of the issue of self-defense, uncommunicated threats are unimportant, and there was no error to refuse a continuance for testimony as to an admission by the deceased of misconduct toward the wife of the defendant and threats against him, as this was not denied.</p> <p>4. —Same—Evidence—Declarations of 'the Deceased.</p> <p>The declarations of the deceased admitting insulting conduct toward defendant’s wife made to others, was mere hearsay, as were specific acts going to his discredit which were unknown to the defendant. Following Jones v. State, 38 Texas Crim. Rep., 104, besides, the 'testimony was merely cumulative.</p> <p>5. —Same—Self-Defense—Charge of Court—Burden of Proof—Rule Stated.</p> <p>Where the right to a charge on the law of self-defense is not challenged, the burden of proof is on the State, and a charge should be submitted to that effect, but in the instant case the facts do not raise the issue of self-defense, and the evidence in its most favorable light shows that the appellant was guilty of manslaughter, and the court correctly refused to charge on the law of self-defense. Following Peck v. State, 5 Texas Crim. App., 611. Distinguishing Wood v. State, 211 S. W. Rep., 782, and other cases.</p>

<p>1.—Theft of Horse—Ownership—Possesson—No Variance—Charge of Court.</p> <p>Where, upon trial of theft of a horse, the indictment alleged ownership and possession in the real owner, who was an heir in the estate to which the property belonged, and the evidence showed that he was the manager of the ranch from which the horse was taken, and that another person helped him who worked for wages, and who was employed under his immediate direction, there was no variance between the allegation and the proof with reference to ownership and possession, and no error in the court’s charge in submitting this question, or in the court’s refusal to submit the requested charge thereon. Following Bailey v. State, 50 Texas Crim. Rep., 398, and other cases.</p> <p>2.—Same—Temporary Possession—Charge of Court—Requested Charge—Intent.</p> <p>Where, upon trial of theft of a horse, the defendant in part of his testimony claimed temporary taking, although he contradicted this in other parts of his testimony, and the court gave a proper charge thereon, there was no error in refusing the requested charge which was incorrect.</p> <p>3. —Same—Insanity—Burden of Proof—Sufficiency of the Evidence.</p> <p>Where, upon trial of theft of a horse, the defendant pleaded insanity, and the court correctly charged the jury that the burden of proof was upon the defendant to make out this defense, and there was no evidence that defendant did not possess sufficient mind at the time of the offense that such act was wrong, etc., and the evidence was otherwise sufficient to sustain the conviction, there was no reversible error.</p> <p>4. —Same—Rehearing—Amending Original Opinion—Ownership.</p> <p>See Court’s opinion on rehearing, modifying the same, in conformity with the facts in the instant case, on the question of ownership and possession, and reviewing the decisions thereon which, however, do not change the conclusion reached in the 'original opinion.</p> <p>5.—Same—Consent—Case Stated—Joint Possession.</p> <p>Where it was not claimed that defendant laid any sort of claim to the consent of anyone to take the horse in question, and both the real owner and manger of the ranch and his servant were away from the ranch on the day the horse was actually taken, and both had a joint right of possession, the allegations in the indictment were sufficient and met by proof.</p>

J. W. Lawhon. Appeal from a conviction of adultery; penalty, a fine of one hundred and fifty dollars. The opinion states the case.

<p>1. —Murder—Evidence—Declarations of Defendant.</p> <p>Upon trial of murder, there was no reversible error in admitting testimony that defendant, a short time before the homicide while looking at deceased, said “He is here isn’t he," it appearing circumstantially that the reference was to the deceased and went to show at least that defendant took note of his presence.</p> <p>2. —Same—Evidence—Other Testimony—Order of Evidence.</p> <p>Upon trial of murder, there was no error in admitting testimony that the eyewitness of the State, a few minutes after the blow was struck, had said to another that he knew who struck the blow, as there was evidence of the same character admitted without objection; besides, the evidence was admissible in rebuttal to an attack made upon the testimony of said eyewitness, even if not in due order. Following Moore v. State, 7 Texas Crim. App., 14, and other cases.</p> <p>3. —Same—Evidence—Foot Prints—Identity of Defendant.</p> <p>Where, upon trial oí murder, the evidence showed that the assailant, after inflicting the fatal blow, ran away, there was no reversible error in admitting testimony that shortly after the homicide a person ran across a certain field, one witness claiming that he had gone into the said field on the night of the homicide to answer a call of nature and that while there he heard a party running, nor was there error to admit testimony that there were tracks of a person running across'said field, and also tracks corresponding to those which would have been made by said witness.</p> <p>4. —Same—Rule Stated—Cumulative Evidence.</p> <p>The rule does not exclude cumulative evidence of a relevant fact, where the identity of the slayer is the main issue, and the State may introduce evidence of "all the surrounding facts and circumstances which may bear upon the subject of inquiry, and foot-prints found at or near the scene of the homicide are admissible in evidence. Following Haley v. State, 209 S. W. Rep., 675.</p> <p>5. —Same—Evidence—Instrument Used—Description.</p> <p>Where, upon trial of murder, the indictment described the instrument used as a stick with unnecessary particularity, yet where a stick exhibited to the jury was substantially identified as that used in inflicting the fatal blow, there was no reversible error.</p> <p>6. —Same—Evidence-—-Reputation of Deceased.</p> <p>Where, upon trial of murder, the defendant pleaded an alibi, there was no error in rejecting testimony to prove the reputation of the deceased for violence. Following Irwin v. State, 43 Texas 236.</p> <p>7. —Same—Evidence—Imputing Crime to Another—Rule Stated.</p> <p>The rule is that in a proper case testimony is admissible showing opportunity and motive of another person than the defendant, who is in such proximity to the homicide as to have committed the crime, where the identity of the defendant rests upon circumstantial evidence alone, yet testimony that, thirty days prior to the homicide, the deceased at another and distant place from the homicide cursed a certain person and told him he would cut his head off and chunk his body with it is inadmissible.</p> <p>‘Í8.—Same—Declarations of Defendant—Self-serving Declaration.</p> <p>Upon trial of murder, there was no error in excluding testimony that on a different occasion and sometime subsequent to that on which the defendant had uttered a threat against the deceased, the defendant said to a third party that deceased’s cursing him hurt the deceased more than defendant, as this was hearsay and self-serving.</p> <p>9. —Same—Evidence—Impeaching Witness—Rule Stated.</p> <p>The defendant having introduced evidence to impeach the main State’s witness by proof of statements contradictory of his testimony upon trial, the ■State was well within its rights in introducing in evidence the prior consistent statements made by said State’s witness.</p> <p>10. —Same—Evidence—Impeaching Witness—Collateral Issue.</p> <p>Where the testimony offered was hearsay and art attempt to impeach the witness upon a collateral issue, it was properly refused.</p> <p>11. —Same—Evidence—Self-serving Declaration.</p> <p>Upon trial of murder, there was no error in excluding testimony of the conversation between the defendant and his brother, especially, where the substance of the conversation was admitted by other testimony.</p> <p>12. —Same—Conduct of Court—Trial Judge—Witness.</p> <p>Where it appeared from the record that the arrest of a certain witness for the defendant'was not brought to the attention of the jury in a manner or at a time which was harmful to defendant, there was no reversible error.</p> <p>13. —Same—Evidence—Instrument Used—Description—Variance.</p> <p>Where, upon trial of murder, the indictment described the stick used in inflicting the fatal blow with unnecessary particularity, and defendant claimed a variance between the stick described in the indictment and the one introduced in evidence, yet where it was shown by the record that the stick exhibited to the jury and described by the witnesses was substantially the same as described in the indictment, there was no reversible error. Following Holliday v. State, 35 Texas Crim. Rep., 133, and other cases.</p> <p>14. —Same—Instrument Used—Rule Stated.</p> <p>While the rule is that a variance between the allegation and the proof is fatal although the description in the indictment of a thing necessary to be described was d_escribed with unnecessary particularity, yet the rule is equally mandatory that the proof is sufficient if it shows that the description of the weapon used as charged in the indictment is sustained by proof that the weapon used was substantially the same as the one described in the indictment, and the nature and result of its use was the same. Following Douglass v. State, 26 Texas Crim. App., 109, and other cases.</p> <p>15. —Same—Misconduct of Jury—Evidence Outside of Record.</p> <p>Where, upon trial of murder, and a conviction of said offense, the defendant set out in his motion for new trial misconduct of jury in that it received other testimony than that given on the trial, and the evidence on said motion showed that the jury in their retirement received testimony from one of their fellows which was based upon his own knowledge and not upon the testimony of the witnesses, upon a material fact, this court will not speculate as to the effect of such testimony upon the other jurors although some of them stated it had none, and the same is reversible error. Following McDougal v. State, 81 Texas Crim. Rep., 179, 194 S. W. Rep., 944. and other case.</p>

<p>1. —Assault and Battery—Recognizance—Punishment Assessed.</p> <p>Where, the recognizance failed to set out the amount of punishment assessed, and the appeal was dismissed but the matter having been cured, the same is reinstated.</p> <p>2. —Same—Jurisdiction—District Court—County Court—Justice Court.</p> <p>Where the jurisdiction of the Criminal District Court was limited to misdemeanors in which the County Court had original exclusive jurisdiction, the offense of simple assault of which the County Court has concurrent jurisdiction with the Justice Court, the said Criminal District Court had no jurisdiction to try the same.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1.—Rape—Juvenile Court—Affidavit—Arrest—Age of Defendant—Confession —Presumption.</p> <p>Where, upon appeal from a conviction of rape, appellant complained of the introduction of certain testimony in passing upon his affidavit alleging that he was a juvenile, the presumption obtains in this court that there was sufficient testimony before the trial court to sustain his judgment that appellant was more than seventeen years of age, notwithstanding defendant’s statements while under arrest as to his age were inadmissible as confessions. Following Oliver v. State, 81 Texas Crim. Rep., 529.</p> <p>2.—Same—Evidence—Census Report—Rule Stated.</p> <p>Where, upon trial of rape upon a female under the age of consent, the State introduced in evidence the census report of a certain school district showing the defendant’s age; that said report came from the proper custody, etc., there was no error although the census taker could not identify the person whose name was attached to said report, etc., as this went to the weight of the testimony and not its admissibility.</p> <p>3. —Same—Requested Charge—Practice in District Court.</p> <p>Where, upon trial of rape, the indictment was in two counts, one charging statutory rape and .the other rape by force, there was no reversible error in refusing a requested charge that the jury be instructed not to consider the evidence relating to force used by defendant. ^</p> <p>4. —Same—Age of Defendant—Requested Charge—Juvenile.</p> <p>Where, upon trial of rape, defendant claimed that he was under seventeen years of age at the time of his trial but the court overruled his application and he was tried and convicted as in ordinary felony, there was no error in the court’s refusal to instruct the jury if they believed defendant to be under seventeen years of age at the time of the commission of the alleged offense they could not convict him, as the question of defendant’s age was confined to the time of the trial; besides, it was a matter for the court and not the jury to decide defendant’s claim whether he was a juvenile at the time bf the trial.</p> <p>5. —Same—Evidence—Affidavit—Practice in District Court—Discretion of Court—Burden of Proof.</p> <p>Where defendant’s affidavit that he was a juvenile was controverted by the State, and upon this issue evidence was heard, at the conclusion of which the court entered his order and judgment refusing to dismiss the indictment against the defendant, and tried and convicted him as in ordinary felony, and the record on appeal showed that the court below heard the witnesses offered by the defendant and that their testimony was so contradictory as to lead him to believe the same was false. Held, that the matter was largely in the discretion of the trial judge and in the absence of abuse shown by the court in his ruling there was no reversible error; the burden of proof being upon defendant.</p> <p>6. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of rape, the evidence was sufficient to support the conviction there was no reversible error.</p> <p>7.—Same—Juvenile—Motion for Rehearing-—Discretion of Court.</p> <p>Where appellant complained in his motion for rehearing that this court should have held the trial court in error for adjudging appellant to be over seventeen years of age at the time of the trial, but the record showed that the trial court exercised his proper discretion in holding that -appellant failed to show by the burden of proof that he was under seventeen years of age at the time of said hearing, there was no reversible error.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

From El Paso County. Original habeas corpus proceeding asking release from a conviction of carrying intoxicating liquors into a military zone, contending that said military Zone Law was repealed or superseded by the Statewide prohibition law, and subsequent Acts of the Legislature.

<p>The opinion states the case.</p>

<p>1.—Theft—Swindling—Sufficiency of the Evidence—Possession—Title.</p> <p>Where, upon trial of theft under article 1332 P. C., the sufficiency of the evidence was attacked on the ground that if an offense was committed it was swindling and not theft, but the evidence showed that the acquisition of the possession of the alleged property was done under false pretext with the intent to appropriate and was followed by an appropriation, the offense of theft was complete and the conviction was sustained. In swindling the purpose and effect of the false pretenses is to acquire the title and not simply the possession of the alleged property.</p> <p>2.—Same—Accomplice—Sufficiency of the Evidence.</p> <p>Where, upon trial of theft, under article 1332 P. C., the sufficiency of the evidence was assailed upon the proposition that the prosecuting witness was an accomplice, but the evidence showed that by the false pretext of the defendant the witness was induced to surrender his possession of the alleged property, and that he did not intend to part with the title thereto, he could not be an accomplice in the design to steal his own property and he was not an accomplice, and there was no reversible error. Following Gibson v. State, recently decided.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Theft of Horse—Statement of Facts—Charge of Court.</p> <p>In the absence of a statement of facts, complaints to the charge of the court cannot be considered where the charge is entirely compatible with a statement of facts provable under the allegation in the indictment, neither can requested charges be considered.</p> <p>2. —Same—Evidence—Bill of Sale—Bill of Exceptions.</p> <p>Where the bill of exceptions does not enable this court to decide why, or ascertain any reason why certain bills of sale were not admissible in evidence, this court in the absence of a statement of facts finds no reversible error.</p>

<p>Theft—Want of Fraudulent Intent.</p> <p>Where, upon appeal from a conviction of theft, the record showed that there is no evidence of a fraudulent taking of the alleged stolen property, the conviction cannot he sustained.</p>

<p>The opinion states the case.</p>

<p>From Milam County.</p> <p>Original habeas corpus proceedings asking release from extradition proceeding.</p>

<p>Local Option—Withdrawal of Appeal.</p> <p>Where the motion to withdraw the appeal was duly signed and verified by the appellant, the same is granted and the appeal dismissed.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Carrying Pistol—Notice of Appeal—Jurisdiction.</p> <p>Where the. record, on appeal from a conviction of unlawfully carrying a pistol, failed to show that notice of appeal was given and entered in the trial court, the appeal must he dismissed.</p>

2 of Dallas. Tried below before the Hon. C. F. Pippen, judge. Appeal from a conviction of a violation of the local option law; penalty, one year imprisonment in the penitentiary.

<p>Burglary—Notice of Appeal—Practice on Appeal.</p> <p>Where, upon appeal from a conviction of burglary, the record showed that if notice of appeal was given and entered in the lower court this did not appear, the appeal must be dismissed.</p>

<p>Appeal from District Court, Ft. Bend County; Sami. J. Styles, Judge.</p> <p>Will Cato was convicted of burglary, and lie appeals.</p>

<p>Incest—Accomplice—Corroboration—Sufficiency of the Evidence.</p> <p>Where, upon trial of incest, the accomplice testimony was sufficiently corroborated to sustain the verdict, there was no reversible error.</p>

<p>1. —Robbery—Accomplice—Corroboration—Practice on Appeal.</p> <p>Where the judgment. is reversed and the cause remanded for other reasons, the question of the sufficiency of the evidence corroborating the testimony of accomplice is not decided.</p> <p>2. —Same—Evidence—Other Offenses—Credibility of Witness—Rule Stated.</p> <p>The rule is that testimony may be introduced showing the conviction of the witness for felony, for the purpose of impeaching or discrediting his testimony, but the witness has the right to explain the circumstances attending such conviction. Following Cowart v. State, 71 Texas Crim. Rep., 116.</p> <p>3. —Same—Case Stated—Plea of Guilty to Other Felony—Evidence—Explanation.</p> <p>Where, upon trial of robbery, the State was permitted to show that the defendant had been charged with embezzlement in the Federal Court and had entered thereto a plea of guilty, for the purpose of impeaching his credibility as a witness, the defendant should have been permitted to show that his plea of guilty to the charge of embezzlement was made to shield his wife, and that his guilt was only technical and not moral, etc., in view of the fact that the testimony in the case upon which the conviction rested was that of an accomplice, and that the injured party had refused to identify the defendant.</p>