86 Tex. Crim.

Volume 86 — Texas Criminal Reports

199 opinions

86 Tex. Crim. 1Whittington v. State (1919)
The opinion states the case.
86 Tex. Crim. 6Lewis v. State (1919)
The opinion states the case.
86 Tex. Crim. 8Brown v. State (1919)
1. —Theft—Evidence—Other Offense—Court Record—Accomplice. Where, upon trial of theft, which grew out of a burglary, there was no error in admitting in evidence an indictment and the court records against the defendant for burglarizing the house from which the stolen goods were taken and to which he had pleaded guilty; as this was an admission that he entered the burglarized house and also corroborated the testimony of the accomplice. 2. —Same—Evidence—Harmless Error. Where, upon trial of theft, the State’s witness testified that she was; the proprietress of the millinery store from which the alleged property had been stolen, and that her mother and one or more of her sisters worked in said store, etc., there was no reversible error in permitting her to testify that she ran that store to make a living and keep up her widowed mother and sisters in the instant case, defendant receiving the lowest punishment. 3. —Same—Evidence—Identification of Stolen Property—Accomplice. Where, upon trial of theft, the accomplice had testified that some of the stolen property had been given by defendant to a woman who lived with him claiming to be his wife, there was no error in permitting the State’s witness to testify that some of the property stolen from her was found in possession of said woman. 4. —Same—Witness—Suspended Sentence—Buie Stated—Final Judgment. Where a jury suspended the sentence of the accomplice who was convicted of burglary, he was a qualified witness in the trial of theft of the defendant who had pleaded guilty to said charge of burglary; there being no final judgment against said accomplice.
86 Tex. Crim. 13Ex Parte Adlof (1919)
A complaint was filed in the Recorder ?s Court of the city of Sherman, Grayson County, Texas, on the 24th of April, 1917, charging relator with a violation of a city ordinance relating to the public cemetery.
86 Tex. Crim. 23Porter v. State (1918)
The opinion states the case.
86 Tex. Crim. 63Juhan v. State (1918)
86 Tex. Crim. 73Fry v. State (1918)
The opinion states the case.
86 Tex. Crim. 89Stracner v. State (1919)
1. —Seduction—Continuance—Third Application—Want of Diligence. Where, upon trial of seduction, the third application for a continuance showed a want of necessary diligence; and besides, the evidence set out in the application was of a cumulative character, and the same as set out was not sufficiently specific in matters of dates, etc., there was no error in overruling the application for continuance and the motion for new trial. 2. —Same—Newly Discovered Evidence—Affidavits—Practice on Appeal Where affidavits pro and con were appended to the motion for new trial alleging newly discovered evidence, and the evidence introduced on the trial on this contest, if any was introduced, is not in the record and said motion is overruled, there was no reversible error. 3. —Same—Evidence—Bills of Exception—Proferí of Child. Where the bill of exceptions recited that the prosecuting witness was permitted to carry with her on the witness stand, etc., the child which was alleged to have been that of the defendant, etc., but said bill stated no ground of objection the matter cannot be intelligently reviewed on appeal. 4. —Same—Bill of Exceptions—Evidence—Promise of Marriage. Where, upon trial of seduction, the bill of exceptions recited that the prosecutrix was permitted to testify that she yielded to the defendant because he had promised to marry her, and on cross-examination that she yielded because she loved him, but the grounds of objection were not stated, there was no error; besides, the evidence was admissible. 5. —Same—Evidence—Bill of Exceptions—Associations with Lewd Women. Where, the bill of exceptions recited that the defendant was not permitted to introduce testimony that the sister of the prosecutrix had been convicted of .murder and that her child was a bastard, but did not point out " the purpose for which this testimony was to be introduced, the same was insufficient; besides, it was shown that the prosecutrix had never associated with her sister or sister’s son, and therefore did not bring the testimony within the rule of associating with lewd women. 6. —Same—Evidence—Bill of Exceptions—Character of Prosecutrix. Where, upon trial of seduction, the defendant in attempting to attack the prosecutrix’s character for chastity complained that he was not permitted to show an act of unchastity upon her part, but the bill of exceptions did not show when this occurred and the record further showed that the witness was allowed to testify fully as to this matter, there was no reversible error. 7. —Same—Sufficiency of the Evidence. Where, upon trial of seduction, the record on appeal showed that the testimony of the prosecutrix was sustained by other evidence, and that all of the evidence sustained the conviction, there was no reversible error. 8. —Same—Rehearing—Corroboration—Sufficiency of the Evidence—Letters. Where; upon trial of seduction, the testimony of the prosecutrix was fully corroborated by the letters of the defendant to the prosecutrix, the conviction was sustained and there was no reversible error. 9. —Same—Juvenile—Minority—No Defense—Seduction—Age of Defendant. Where appellant’s contention was that he was about sixteen or seventeen years of age at the time of the alleged seduction, and that he should have been tried under the law with reference to delinquent children, but the record showed that he was nineteen years of age when he was tried there was no error; besides the fact that he was a minor would not excuse him for seducing a female under a promise of marriage, there was no reversible error. Following Hinman v. State, 59 Texas Grim. Rep., 34, and other cases.
86 Tex. Crim. 96Turpin v. State (1919)
1.—Scire Facias—Judgment Nisi—Bail Bond—Statutes Construed. Until the Act of 1907, article 337 C. C. P., was enacted, the sheriff could not take bond during term time. Under article 337, supra, the sheriff is now authorized to take the bond under the condition and stipulation of the amended act, but bail bonds are statutory and the terms of the statute must be strickly followed. Following Wallen v. State, 18 Texas Grim. App., 414, and other cases. 2. —Same—Bail Bond—Order of Court—Practice on Appeal. Where, upon appeal from a judgment nisi on a forfeited bail bond, it appeared from the record that the amount of said bond was not fixed by the court, as provided under article 337 supra, and the sheriff was not authorized to take said bail bond, the forfeiture thereof could not be sustained. Distinguishing Wiseman y. State, 70 Texas Grim. Rep., 477. 3. —Same—Complaint—Indictment—Felony—Bail Bond. Where the record, on appeal from a judgment nisi of a bail bond, showed both in the bond and scire facias that the accusation against the principal was by complaint instead of indictment for a felony in the District Court, the forfeiture was thereby rendered invalid. Following Harrell v. State, 22 Texas Grim. App., 692, and other cases.
86 Tex. Crim. 98Doggett v. State (1919)
Aggravated Assault—Husband and Wife—Evidence—Grand Jury. Where, upon trial of aggravated assault, the State was permitted on cross-examination of defendant's wife to lay a predicate to impeach her, by asking questions as to her testimony-before the grand jury which she answered over the objections of the defendant, and the State was then permitted to introduce as a witness a member of the grand jury who testified to a statement of defendant’s wife before the grand jury which was contradictory to some extent, at least, of her testimony before the trial jury, the same was reversible error. Following Johnson v. State, 66 Texas Crim. Rep., 586, 148 S. W. Rep., 328, and other cases.
86 Tex. Crim. 101Barrett v. State (1919)
1. —Murder—Manslaughter—Charge of Court—Provocation. Where, upon trial of murder, the defense evidence showed insult to defendant’s wife by the deceased, and the court’s charge on manslaughter instructed the jury that the provocation must arise at the time of the commission of the offense and that the passion is not the result of a former provocation, the same was reversible error. 2. —Same—Manslaughter—Provocation—Charge of Court. Upon trial of murder, where the defendant showed insulting conduct by the deceased towards defendant’s wife, the charge of the court in submitting manslaughter instructing the jury that the act must be directly caused by the passion arising out of the provocation, if any, at the time of the killing and not from some other provocation, or a provocation given by some person other than the party killed; there being no evidence of a provocation given by some other person than the deceased; although the court later practically instructed the jury in the language in the statute, the same was reversible error. 3. —Same—Adequate Cause—Insulting Conduct to Female Relative. Where the evidence raised the issue of insulting conduct to a female relative, the court should have instructed the jury that this is adequate cause under the statute, and that this should determine whether a sufficient passion was engendered, and it was not for them to believe whether the adequate cause existed or not, for this must be looked to from defendant’s standpoint. 4. —Same—Manslaughter—Charge of Court—Self-Defense—Apparent Danger. Where the court’s charge, with reference to the demonstration by the deceased, applied the same to the offense of manslaughter instead of self-defense, and limited the right of self-defense to real attack instead of apparent danger the same was reversible error. Following Benson v. State, 51 Texas Crim. Rep., 367. 5. —Same—Self-defense—Charge of Court—Actual Danger—Apparent Danger. Where, upon trial of murder, the evidence did not raise the issue of actual danger but that of apparent danger, and the court confined the charge to actual danger and refused a requested charge applicable to the facts of the case, the same was reversible error. Following Phipps v. State, 34 Texas Grim. Rep., 560, and other cases. 6. —Same—Evidence—Reputation of Deceased—Specific Instances. Where, upon trial of murder, the defendant placed the reputation of deceased as to chastity in issue, and that the same was bad and the State met this by showing that it was good, the defendant should have been permitted on cross-examination of the State’s witnesses to show that they had heard of the prior trouble the deceased had had with reference to the wife of a third party, and that this was talked about in the community and even got into the church. 7. —Same—Evidence—Reputation of Deceased. Where the State was permitted, over objection of defendant, to place in evidence the general reputation of the deceased as a peaceable man, when defendant had not raised this issue, the same was reversible error; especially where the State sought to bolster up this line of testimony.
86 Tex. Crim. 107James v. State (1919)
The opinion states the case.
86 Tex. Crim. 112Bibb v. State (1919)
1. —Murder—Manslaughter—Reputation for Chastity—Evidence. Where, upon trial of murder, defendant pleaded self-defense but contended that the State introduced evidence raising the issue of manslaughter and that it was bound thereby, and could not ask for a conviction of murder and was in no event authorized to introduce testimony of the bad reputation of the wife of the defendant, in order to rebut and overcome the theory of manslaughter thus raised by its own evidence, held, that such contention was untenable. 2. —Same—Rule Stated—Manslaughter—Evidence—Malice. If, upon trial of murder, the State had introduced testimony from which a conclusion of manslaughter might be drawn, in whole or in part, it would not be compelled to rest its case there, or be precluded from showing that such testimony did not produce adequate cause and that the facts evidenced malice in the particular case and was murder. 3. —Same—Rule Stated—Insult to Female Relative—Murder—Manslaughter. In the instant case if the State had seen fit to prove, as an original proposition, that defendant killed deceased because he was going with his wife who had sued him for divorce, this would in no sense have deprived the State of its right to proceed, if it could, to show that such killing was without passion or without the other indicia of manslaughter. 4. —Same—Rule Stated—Insulting Conduct to Female Relative. In all cases where insulting conduct to female relative is relied upon to reduce the homicide to manslaughter, the character of the female in question is made an issue under the statute. Following Wood v. State, 31 Texas Crim. Rep., 571, and other cases. And where the testimony covered a period of time beginning some eight years previous to the homicide and extending back for several years it was not too remote. 5. —Same—Rule Stated—Time Not Essential—Question of Fact.. In determining how far this character of evidence may be removed from that of the offense to which such evidence relates, it is impossible to make any hard and fast rule, and it seems that when such evidence is admissible at all, the same should be allowed regardless of the time, this being a fact for the jury. 6. —Same—Evidence—Reputation—Rule Stated—Place of Residence—Presumption. A. witness or party whose reputation becomes issuable may rove from place to place without fixed residence, in which case his or her reputation may be proven at any place where the witness or party lived long enough to establish one. Mynatt v. Hudson, 66 Texas, 66, and other cases, and the rule sustains the proposition that the reputation once established is presumed to remain the same until the contrary appears. 7. —Same—Evidence—Specific Instances of Immorality. The defendant’s contention that the trial court erred in admitting testimony of specific instances of his wife’s immorality is sufficiently met by the fact that no objection was urged to any testimony upon this ground. 8. —Same—Requested Charges—Manslaughter. Where the requested charges were either covered by the main charge of the court on manslaughter, or were on the weight of evidence, there was no reversible error in refusing them. 9.—Same—Manslaughter—Self-defense—Charge of Court. Where, upon trial of murder, the court’s charge on self-defense followed precedent as also his charge on manslaughter, and the evidence in the case was sufficient to sustain the conviction of murder, there was no reversible error. 10. —Same—Insult to Female Relative—Rule Stated—Unchastity. The accusation of unchastity, made against the female relative, cannot be adequate cause to arouse the mind of a male relative who already knows the facts of such unchastity. Following Redmond v. State, 52 Texas Crim. Rep., 591, and other cases. 11. —Same—Manslaughter—Rule Stated—Insult to Female Relative. Four things must appear in a given case of homicide to reduce the same to manslaughter where the defendant relies upon insulting conduct to a female relative. The occurrence of insulting conduct or words; proof that this was the real cause of the killing, and that the killing must have taken place immediately on the happening of the insult or soon thereafter as the accused met the insulter, and that his mind was affected to such an extent as would commonly render the mind of a person of ordinary temper incapable of cool reflection. Following Reagan' v. State, 70 Texas Crim. Rep., 498, and other cases. 12.—Same—Insult to Female Relative—Rule Stated. It seems not reasonable that a man made to be shown to have knowledge of the wife’s criminal intimacy with any number of men, without any passion being aroused, that he would still be allowed to set up such intimacy with one other man as having produced uncontrolable passion, but even then, the other necessary elements must concur in order to reduce the homicide to manslaughter. 13.—Same—Manslaughter—Charge of Court—Insult to Female Relative. Where, upon trial of murder, the court’s charge on manslaughter, raised by the issue of insulting conduct by the deceased to defendant’s wife, did not limit the jury to insulting conduct ipso nomine but allowed them to range through the entire • evidence to find any condition or circumstance which is capable of creating and does create sudden passion, and instructs them that if from any such cause sudden passion arose and caused the killing it will be manslaughter, and further specifically calls their attention to such insulting conduct as adequate cause, the same was sufficient and there was no reversible error. 14. —Same—Insulting Conduct to Female Relative—Evidence—Rule Stated. Where, upon trial of murder,- the defendant pleaded self-defense but also introduced evidence of his res gest® statement made immediately after he killed the deceased that the deceased broke up defendant’s family, this put the State upon notice that defendant would rely upon manslaughter also, and the State was privileged to prove the general bad character of defendant’s wife for virtue, and defendant’s knowledge of his wife’s immoral conduct on specific occasions. 15. —Same—Unchastity—Rule Stated—Manslaughter—Charge of Court. The proof of the unchaste character of defendant’s wife did not take the issue of manslaughter out of the case, but the court’s charge on this phase of the evidence was sufficient, and there was no error in refusing a requested charge on this subject. Davidson, Presiding Judge, dissenting. 16. —Same—Rehearing—Reputation for Chastity. Where, upon rehearing, the appellant contended that this court erred in overruling his exceptions to the testimony as to the reputation for chastity of his wife on specific occasions, but the record showed such unchastity and also showed the defendant’s knowledge of and consent thereto, there was no reversible error, although such conduct occurred many years before the homicide; there being no facts shown of a reformation of such conduct. 17. —Same—Unchastity—Reputation—Manslaughter—Rule Stated. Where defendant claimed that the deceased broke up his family and that the killing resulted therefrom he had the right to have this issue submitted to the jury, but where the evidence also showed or suggested that defendant’s wife was a prostitute and that he knew that fact and that it ordinarily raised in his mind no anger, rage, etc., these were matters for the jury to decide whether the killing resulted from malice or uncontrolable emotion, and the fact that such evidence covered a period of years might affect its weight but not its admissibility; there being nó evidence to indicate any change in the character of defendant’s wife, or that defendant showed any resentment thereto. 18.—Same—Requested Charge—Manslaughter—Weight of Evidence. Where, upon trial of murder, the defendant pleaded self-defense but the evidence also raised the issue of insulting conduct to defendant’s wife by the deceased, and showed criminal intimacy of said wife with deceased, etc., and the court gave a proper charge on manslaughter, there was no error of his refusal to submit defendant’s requested charge on this issue, which was on the weight of the evidence and did not submit the law of the case.
86 Tex. Crim. 129Ex Parte Albertson (1919)
Habeas Corpus—Former Appeal—Practice on Appeal—Indictment. Where relator applied to the District Court for a writ of habeas corpus to obtain his discharge, because this court on appeal from a conviction of swindling ordered the prosecution against defendant dismissed, but the record showed that when the mandate reached the trial court said court ordered relator to be held to await the action of the grand jury to file a new indictment, and the grand jury thereupon returned a new indictment under which relator is now held, his appeal for writ of habeas corpus is dismissed.
86 Tex. Crim. 130Dugan v. State (1919)
1. —Murder—Charge of Court—Instrument Used—Burden of Proof—Presumption. Where, upon trial of murder, the controverted issue was whether the intent to kill was formed from malice or passion or the necessity of self-defense, the burden was on the State to prove the unlawful homicide to overcome the presumption of innocence, and no presumption from the character of the weapon used was available to discharge this burden, and under the facts of the instant case a charge of the court that the instrument used in committing the homicide should be taken into consideration in judging the intent of the defendant, was reversible error. Following: Burnett v. State, 46 Texas Crim. Rep., 116, and other cases. Overruling: Barbee v. State, 50 Texas Crim. Rep., 429. 2. —Same—Self-Defense—Charge of Court—Language Used—Rule Stated. In a proper case, that is, one in which the evidence shows that the language of the deceased may have given color to his acts, the charge of the court should be so framed as to give the accused the benefit of the language as well as the acts of the deceased, and in such case its limitation to the acts alone has been uniformly held harmful error, and was such under the facts in the instant case. Following Andrus v. State, 73 Texas Crim. Rep., 329, and this error is enhanced by the charge of the court on provoking the difficulty. Following: Lockhart v. State, 53 Texas Crim. Rep., 596. 3. —Same—Experimental Evidence—Practice in District Court. Upon another trial the evidence of experiment upon the body of de. ceased, to determine whether the blows on his face could have been made with a pistol should be omitted.
86 Tex. Crim. 135Lewis v. State (1919)
1. —Aggravated Assault—Verdict—Begree of Ofiense. Where, upon trial of aggravated assault, the information charged one count, and the court submitted to the jury in his charge both aggravated and simple assault, and they found the defendant guilty as charged in the information and assessed his fine at twenty-five dollars, the contention that the verdict should have stated whether defendant was guilty of aggravated of simple assault is untenable, and there is no reversible error. Following: McGee v. State, 39 Texas Crim. Rep., 190, and other cases. Distinguishing: Lee v. State, 41 Texas Crim. Rep., 557. 2. —Same—Statutes Construed—Begree of Ofiense—Former Decisions. Under articles 771 and 772, Vernon’s C. C. P., it is clear, the conflict of decisions has arisen, if there he such conflict, and in the cases cited by appellant as holding the opposite to the decision in the instant case, it will be found that in most of them the court in his charge submitted the different degrees of the offense and the jury found defendant guilty generally, or guilty as charged, frequently assessing, a punishment which might be inflicted for either the higher or lower degree submitted, are in entire accord with the holding in this case. 3. —Same—Verdict—Charge of Court—Intention of Jury—Pleading. While the jury are presumed to express their finding with reference to the charge of the court, it must follow that when the information or in. dictment contains but one count, and the verdict recites that the accused is guilty as charged in the information or indictment, and a punishment is fixed which is allowed by law for either of the offenses submitted by the court, the court must look to the indictment or information referred to In the verdict in order to ascertain the intendment of the jury. Following: Cohea v. State, 11 Texas Crim. App., 153, and other cases.
86 Tex. Crim. 142Canales v. State (1919)
The opinion states the case.
86 Tex. Crim. 144Lucas v. State (1919)
The opinion states the case.
86 Tex. Crim. 145Williams v. State (1919)
Theft—Bailment—Final Judgment—Notice of Appeal—Practice on Appeal. In the absence in the record of a final judgment and notice of appeal, the appeal must be dismissed.
86 Tex. Crim. 145Starnes v. State (1919)
Adultery—Statement of Facts—Bills of Exceptions—Bequested Charges. In the absence of a statement of facts and bills of exception, the Insufficiency of the evidence cannot be considered on appeal; and where the record failed to show whether the requested charges were given or not the presumption is that they were given.
86 Tex. Crim. 146Lee v. State (1919)
1. —Theft—Juvenile—Age of Defendant—Bes Adjudicata. Where appellant was arraigned in the District Court for felony theft and presented his affidavit of juvenility in accordance with the statute, tendering his testimony, which the court refused to hear because at a former trial a similar affidavit had been overruled, the same was reversible error and the doctrine of res adjudicata is not applicable and the court should have heard testimony as to the age of the accused. 2. —Same—Evidence—Former Trial—Age of Juvenile. Upon trial of felony theft where defendant presented his affidavit of juvenility, it was error to permit the district attorney to put into the record for appeal, over the objection of appellant, the evidence heard upon the issue of juvenility by the court at a former trial, the same not having been offered upon trial of the case; besides, this would not be conclusive of the age of the accused.
86 Tex. Crim. 147Franklin v. State (1919)
Aggravated Assault—Agreement Between Counsel. Where, upon trial of assault to murder and a conviction of aggravated assault, it appeared from the record on appeal that defendant pleaded guilty to an aggravated assault in the County Court according to an agreement between the parties, the judgment must be affirmed in the absence of a showing that defendant was misled.
86 Tex. Crim. 149Ex Parte Furton (1919)
From Dallas County. Original habeas corpus proceeding, asking release from arrest under an indictment charging relator with having and keeping intoxicating liquors in a public road, and transporting the same unlawfully in local option territory. The opioion states the case.
86 Tex. Crim. 168Ex Parte Davis (1919)
From Dallas County. Original habeas corpus proceeding, asking release from arrest upon a complaint in the Justice Court, charging a violation of section 1, chapter 24, Act of Thirty-fifth Legislature, Fourth called session, known as the state-wide prohibition law. The opinion states the case.
86 Tex. Crim. 183Wales v. State (1919)
The opinion states the case.
86 Tex. Crim. 188Terreto v. State (1918)
The opinion states the case.
86 Tex. Crim. 188Terretto v. State (1918)Affirmed
Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. V. Terretto was. convicted of a felony in the alleged violation of Vernon’s Ann. Pen. Code 1916, art.-630a, and appeals.
86 Tex. Crim. 191Duncan v. State (1919)
1.—Forgery—¡Sufficiency of the Evidence—Charge of Court. Where, upon trial of forgery alleging that defendant filled out a certain check and placed therein an amount not authorized by the payor, it became a question whether he had the authority to do so, it was the function of the jury to decide this issue on proper instructions of the court, and the jury having found him guilty, although the evidence was conflicting, there was no reversible error. 2.—Same—Evidence—Other Transactions. Upon trial of forgery by filling out a signed blank check in a sum not authorized by the payor, there was no error in admitting evidence with reference to a certain note and other transactions occurring at the time of the signing of the check by the payor, as bearing on the question as to whether defendant had authority to fill out the check in the amount he claimed. 3. —Same—Evidence—Oustom of Banks—Clearing House. Upon trial of forgery, by filling out a check in an unauthorized sum, there was no error in admitting evidence with reference to the custom where hanks handle checks through a clearing house. 4. —Same—Forgery—Swindling—Definition of Offense. Where, upon trial of forgery by filling out a blank signed check for an unauthorized amount, defendant contended that if any offense was committed it was not forgery but swindling, such contention, under the facts of the instant case under the law applicable thereto, is untenable. Following: Hooper v. State, 30 Texas Crim. App., 412. 5. —Same—Buie Stated—Definition of Offense—Blank Gheck—Signature. Where a person procures the signature of another upon a blank paper, and without authority of the latter writes an apparently valid instrument above it he is guilty of forgery, and the rule- is the same where an agent having the genuine signature of his principal with instructions to write an instrument in a certain way, disobeys his instructions. 6. —Same—Buie Stated—Statutes Construed—Filling Out Signed Blank Check. If the ease be one of swindling or forgery, the statute requires prosecu. tion for the forgery, and where defendant was charged with filling out a blank check signed by his principal in an amount not authorized by the latter, he was correctly prosecuted for forgery. 7. —Same—Swindling—Forgery—Definition of Offense—Case Stated. Where, upon trial of forgery by filling out a signed blank check for an amount not authorized by the payor, the evidence showed that defendant presented the check to a banker and asked him to ascertain if the check would be paid in any amount at a certain other bank and the said banker after inquiry from the said other bank, stated that the said, check would be paid in any amount, and the defendant thereupon directed said banker to fill the check out for $1262, and the evidence showed that the defendant was not authorized to fill out said check in an amount exceeding $40, the offense was forgery; it appearing that the payor knew nothing about the latter transaction. 8. —Same—Innocent Agent—Principal. Where, upon trial of forgery by filling out a signed blank check in an unauthorized amount, there was no merit in defendant’s contention that another filled out said check at defendant’s direction, who was not aware that he was filling a fraudulent check; and this would be no defense to the charge of forgery. - 9. —Same—Evidence—Endorsement—Check—Circumstantial Evidence. Where, upon trial of forgery upon the unlawful filling out of a signed blank check, the State introduced its endorsement by the defendant, to which the latter objected which objection the court overruled, there was no reversible error.
86 Tex. Crim. 195Stribling v. State (1919)
Disturbing Peace—Husband and Wife—Credible Person. Where, upon trial of disturbing the peace, the information was supported by affidavit of the wife of the defendant, a motion in arrest of judgment, based upon the proof of this fact, should- have been sustained as the wife of the accused cannot be regarded under article 479, Penal Code, as a credible witness within the meaning of this statute, except for those offenses committed against her as provided under article 795 C. C. P. Following: Overton v. State, 43 Texas, 616, and other cases.
86 Tex. Crim. 197Spencer v. State (1919)
Hunting—Enclosed Lands of Another—Variance—Allegation and Proof. Where the information and complaint alleged a violation of articles 1255a, b, and c, Vernon’s Annotated P. C., which pertains to enclosed land of two thousand acres or more, and the evidence showed that such offense, if any, was with reference to an enclosure containing not more than six hundred acres, and the court gave an erroneous charge as to the punishment, the same was reversible error. Following: Berry v. State, 69 Texas Crim. Rep., 602.
86 Tex. Crim. 198Barton v. State (1919)
1.—Burglary—Depositions—Practice in District Court—Affidavit—Continuance. Where, upon trial of burglary by the use of high explosives, the District Court had issued a commission to another State to take the depositions of certain witnesses for the defense, in answer to the direct and cross interrogatories accompanying the commission, and the depositions were taken, returned and filed with the district clerk, and at a subsequent term thereof, when the case was called for trial, the county attorney presented a written motion to quash the depositions which had not been filed before, and no notice of it bad been served upon the defendant or Ms counsel, it was reversible error to sustain it; especially in view of the application for continuance to secure the presence of the district clerk to show that the preliminary affidavit had been filed. 2.—Same—Depositions—Affidavit—Statutes Construed — Predicate — Commission. The affidavit, required by article 824, C. C. P., goes to the manner and form of taking depostions in criminal cases and is required as a predicate for the issuance of a commission, and it appearing that the State’s attorney had notice thereof and filed cross-interrogatories, and that no objections were filed to the form of taking depositions, at the proper time, a motion to quash them should have been overruled, and it was not necessary that said affidavit should accompany the depositions or the commission. 3.—Same—Civil Cases—Depositions—Practice in District Court—Continuance. Article 822, C. C. P., declares that the rules obtaining in civil cases shall control the taking of depositions in criminal cases, when not in conflict with the requirement of the chapter in which that article is found, and article 3676, civil code, provides that where depositions have been on file for one day before the case is called no objection to their form or manner of taking shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial begins, and such objections shall be made and determined at the first term of the court after the depositions have been filed and not thereafter; therefore the motion to quash in the instant case, coming at a subsequent term, should uot have been entertained. Following: Blake v. State, 38 Texas Grim. Rep., 377; besides, the defendant was entitled to have the testimnoy of the clerk to show that the preliminary affidavit was filed. 4. —Same—Jury and Jury Daw—Practice on Appeal. Where the judgment is reversed and the cause remanded upon other ground, bills of exception to the formation of the jury need not he discussed. 5. —Same—Evidence—Bills of Exception. In the absence of sufficient bills of exception objections to the introduction of circumstantial evidence cannot be considered on appeal. 6.—Same—Evidence—Witness—General Reputation. Upon trial of burglary, testimony to support a States witness who had been impeached by proof that his general reputation was bad, should not have been admitted. However, the bills of exception being insufficient no reversible error is shown.
86 Tex. Crim. 202Ex Parte Sanders (1919)
From Milam County. Original habeas corpus proceedings asking release under warrant of arrest in extradition proceedings.
86 Tex. Crim. 203Lee v. State (1919)
Juvenile Delinquent—Waiving Jury—Misdemeanor. Where defendant was tried under a complaint and information as a juvenile delinquent, article 1195, CÍ. C. P., and waived a jury and was convicted; not being prosecuted for a felony, there was no reversible error. Following: Shulman v. State, 76 Texas Crim. Rep., 229, and other cases.
86 Tex. Crim. 204Neely v. State (1919)
The opinion states the case.
86 Tex. Crim. 205Tippins v. State (1919)
The opinion states the case.
86 Tex. Crim. 207Anderson v. State (1919)
1.—Murder—Change of Venue—Discretion of Court. Where, upon trial of murder, the defendant prestented an application for a change of venue on the ground of prejudice, which was controverted by the State upon statutory grounds, and evidence was heard for and against the same, and the- only witness for defendant who testified that he did not believe he could obtain a fair and impartial trial in said county was related to the defendant, there was no error in overruling the application. 2. —Same—Charge of Court—Manslaughter—Words and Phrases. Where, upon trial of murder, it appeared that the deceased was not the person against whom the fatal shot was aimed, and the court gave a correct charge on manslaughter and the use of the word “intentional” therein which could not affect said charge of the court so as to make it injurious to the defendant there was no reversible error. 3. —Same—Charge of Court—Act of Another—Self-Defense—Deadly Weapon. Where, upon trial of murder, the defendant claimed justification for his act in shooting and killing the deceased on the ground that the brother of the deceased had a shotgun and raised the same in a threatening manner, and that defendant’s action in firing the gun was in self-defense against the purported attack of the brother of the deceased, and the court, considering his charge as a whole, instructed the jury that defendant would 'be justified in acting upon a reasonable apprehension of danger, as viewed from his standpoint regardless of whether he shot before, at the time of, or after the brother of deceased fired his gun, etc., and regardless as to whether said gun was a deadly weapon, there was no reversible error. 4. —Same—Defendant’s Bight to Arm Himself—Charge of Court. Where, upon trial of murder, the evidence showed that defendant took the gun along because he feared a clash with his adversaries with whom he had had a previous difficulty, and one of whom he killed, for the purpose of barring them off to have a conversation with them to settle the matter,, and these matters were fully covered by the court’s charge, which instructed the jury that defendant had the right to arm himself against any attack which he might fear and to interview his assailant in regard to the previous difficulty, there was no reversible error. 5. —Same—Sufficiency of the Evidence—Conflict of Evidence. Where, upon trial of murder, the evidence was sufficient, although conflicting, to sustain the conviction, there was no reversible error. 6. —Same—Charge of Court—Presumption—Intent to Kill—Words and Phrases. Where appellant, in his motion for rehearing, contended that the trial court in failing and refusing to give in his charge articles 1105 and 1106, Vernon’s Penal Code, with reference to the presumption of the law as to an attack by deceased’s brother with a shotgun capable of producing death or serious bodily injury upon the defendant or his codefendant, the record showed, that viewing the charge as a whole, such presumption was not limited thereby, there was no reversible error, and the use of the word “capable” instead of the statutory term “calculated” was favorable to defendant. 7. —Same—Charge of Court—Eight to Go Armed—Self-Defense. Where appellant in his motion for rehearing contended that the court’s charge on the right of going armed was too restrictive and made an attack upon the court’s original opinion in sustaining the court’s said charge, this court finds no reason to change its original opinion thereon, but further observes that where the trial court gave to the appellant a charge on his right of self-defense, as was done in this case unlimited by any charge on provoking the difficulty, or other theory of imperfect self-defense, a charge on appellant’s right to go armed to the place where he met the deceased, is unnecessary. Following: Crippen v. State, 80 Texas Crim. Rep., 293, 189 S. W. Rep., 496, and other cases.
86 Tex. Crim. 217Bargas v. State (1919)
1. —Theft of Cattle—Sufficiency of the Evidence. Where, upon trial of theft of cattle, the evidence is sufficient to sustain the conviction, there is no reversible error. 2. —Same—Evidence—Bill of Exceptions—Motion for New Trial In the absence of a bill of exceptions duly certified and approved, the admission or rejection of evidence cannot be considered, if the complaint thereto is merely raised in the motion for new trial. Following: Sessions v. State, 81 Texas Crim. Rep., 424. 3. —Same—Objections to Charge of Court—Requested Charges. To authorize the consideration of objections to the charge of the court or the refusal of requested charges, the record must disclose that the requirements of the statute, articles 735, 737, 737a, and 743, C. C. P., were complied with. 4. —Same—Objections to Charge—Requested Charges—Rule Stated. Objections to the charge of the court and refused requested charges cannot be considered on appeal, when there is a failure in the record to show that they were presented to and acted upon by the court, as required by the statutes supra. 5. —Same—Venue—Practice on Appeal—Rule Stated. Where (here is no indication in the record that an issue was made on the subject on the trial of the case as to question of proof of venue, the same must be presumed as made, on appeal; however, the record shows that venue was proved. 6. —Same—Name of the Defendant—Spelling—Indictment—Motion for New Trial. In the absence of a showing in the record that complaint was made that defendant’s name is incorrectly stated or spelled in the indictment, at the time of arraignment of defendant, and the question is raised for the first time in the motion for new trial, the matter cannot be considered on appeal.
86 Tex. Crim. 219Temple v. State (1919)
Bobbery—Insufficiency of the Evidence—Charge of Court. Where, upon; trial of robbery, the evidence raised the issue that defendant was induced to part with his money and place it under the control of the party alleged to have been injured, through the latter’s deception and fraud in playing a game of cards, and that he thereupon took it away from him, he was not guilty of the offense of robbery. Distinguishing: Blaine v. State, 34 Texas Grim. Rep., 448, and the court should have submitted a requested charge upon this phase of the case. Following: Porter v. State, 23 Texas Grim. App., 295, and other cases.
86 Tex. Crim. 221Sine v. State (1919)
1. —Aggravated Assault—Other Offenses. Where, upon trial of aggravated assault upon a female child by indecently fondling her person, the court permitted the introduction of testimony of a different and separate offense upon another child than that named in the indictment and at a different time and place, the same was reversible error. 2. —Same—Evidence—Obscene Pictures—Other Transactions. Where upon trial of aggravated assault upon a female infant, the evidence showed that the defendant enticed said child into his dwelling house and there indecently fondled her person, and exhibited to her some obscene pictures, the State should not have been permitted to introduce testimony to the effect that on various occasions, in no way connected with the one upon which the prosecution was founded, the defendant had exhibited obscene pictures, although a predicate was laid therefor.
86 Tex. Crim. 222Parker v. State (1919)
1.—Murder—Provoking Difficulty—Charge of Court. Where, upon trial of murder, the evidence raised the issue of provoking the difficulty, the court properly submitted a charge on this phase of the case. 8.—Same—Evidence—Bill of Exceptions—Buie Stated. A bill of exceptions must not only state the ground of objection, but must go further and contain such matter as will make apparent the injury claimed from the recitals of the bill itself, and where this is not done the same will not be considered on appeal. 3. —Same—Absent Witness—Evidence—Practice in District Court. Where no effort was made to connect the defendant with the failure of an absent witness to appear, the State should not have been permitted to place in evidence the application for process of said absent witness. Following: Funk v. State, 208 S. W. Rep., 508. 4. —Same—Collateral Matters—Evidence—Bebuttal. Where, upon trial of murder, it appeared from the evidence that the homicide occurred as the result of a statement made by the deceased that the defendant had been intimate with a certain woman at a certain time and place, there was no error in admitting testimony that such was the fact. But the defense should have been permitted to show the bias of the witness who gave this testimony. 5. —Same—Hearsay Evidence. Upon trial of murder, the conversation between third parties, out of the presence and hearing of defendant, should not have been admitted in evidence, although this may have followed a question by the defendant which had been withdrawn before the same was answered. 6. —Same—Evidence—Other Transactions. Where the homicide was the result of a statement by deceased that another party had told him that the defendant and a woman had been found in a compromising situation at a certain time and place, there was no error in admitting testimony that tracks and other evidence of the presence there of other men and women had been found at such place. 7. —Same—Evidence—Threats by Deceased. Upon trial of murder, the court should have admitted testimony to the effect that a short time before the homicide he saw and heard deceased point through a door evidently at defendant, making threats against him at the time.
86 Tex. Crim. 229Bradford v. State (1919)
The opinion states the case.
86 Tex. Crim. 229Moss v. State (1919)
The opinion states the case.
86 Tex. Crim. 230Eberhardt v. State (1919)
Theft—Escape—Practice on Appeal. Where it was satisfactorily established in this court that the appellant had escaped from the custody of the county jailor and is now at large pending this appeal, the same is hereby dismissed.
86 Tex. Crim. 231Bargas v. State (1919)
1. —Theft of Cattle—Bill of Exceptions—Practice on Appeal. Where the bill of exceptions purporting to be a transcript of what occurred on the trial was not approved by the trial judge or presented to him or properly filed in time, it cannot be considered on appeal. 2. —Same—Name of Defendant—Variance—Buie Stated. Where appellant contended that his name was Vargas instead of Bargas as alleged in the indictment, and therefore there was a variance, but it appeared from the record that he failed to request the court to change said name in the indictment, there was no reversible error; the rule would be different if .there had been a variance in the name of the alleged owner. 3. —Same—Continuance—Bill of Exceptions. In the absence of a bill of exceptions the overruling of an application for a continuance cannot be considered on appeal. 4. —Same—Motion for New Trial—Bill of Exceptions—Sufficiency of the Evidence. In the absence of a bill of exceptions, a motion for new trial containing several grounds cannot be considered on appeal, and' the evidence being sufficient to sustain the conviction, there is no reversible error.
86 Tex. Crim. 232Grandberry v. State (1919)
Manufacture of Intoxicating Liquors—Plea of Guilty—Sufficiency of the Evidence. Where, upon trial of unlawfully manufacturing intoxicating liquors under the so-called statewide prohibition statute, passed by the fourth called session of the Thirty-fifth Legislature, it appeared from the record that defendant had pleaded guilty and was assessed the lowest punishment, he is not in position to urge the insufficiency of the evidence as a ground for reversal; besides, if a statement of facts is considered the verdict is sustained. Davidson, Presiding Judge, dissenting, holding that the statute is invalid.
86 Tex. Crim. 234Curry v. State (1919)
The opinion states the case.
86 Tex. Crim. 234Coats v. State (1919)
Intoxicating Liquors—Manufacture—Statewide Prohibition—Sufficiency of the Evidence. Where, upon trial of unlawfully manufacturing intoxicating liquors, the record on appeal showed that defendant pleaded guilty and was given the lowest penalty, he is not in position to urge the insufficiency of the evidence -as a ground for reversal; besides, defendant confessed his guilt.
86 Tex. Crim. 235Flores v. State (1919)
The opinion states the case.
86 Tex. Crim. 237Medford v. State (1919)
The opinion states the case.
86 Tex. Crim. 243Davidson v. State (1919)
1. —Burglary—Indictment—Occupancy. In prosecutions for burglary an allegation of occupancy alone is sufficient. Following: Pyland v. State, 33 Texas Crim. Rep., 382. 2. —Same—Continuance—Want of Diligence. Where, upon trial of burglary, the application for continuance showed a want of diligence to secure the attendance of the absent witness, the same was correctly overruled. 3. —Same—Jury and Jury Law—Jury Commissioners—Statutes Construed. Under the provisions of chapter 4, title 8, C. C. P., providing for the formation of juries in cases less than capital, where from any cause the number of jurors in the box or panel is reduced below the number required, there was no error that the court authorized the summons of tales-man, and the contention that defendant was forced to trial before a jury not selected by the jury commissoners is untenable, there being no objectionable jurors forced upon defendant. 4. —Same—Occupancy of House—Alleged Owner—Rule Stated—Verdict. It is not necessary in order to constitute oceupancy within the meaning of the burglary statute, that there be the actual corporeal presence of the alleged occupant in the alleged house at the time, and the alleged occupancy was met by proof that said alleged owner of the house closed it up and went to California, but prior to leaving directed his brother to keep the. doors closed and look after his property in the house; besides, a general verdict was authorized under the pleadings. Following: Moore v. State, 48 Texas Crim. Rep., 400, and other cases. 5. —Same—Charge of Court—Practice on Appeal—Bill of Exceptions. This court will not search the entire record to ascertain if a bill of exceptions to the charge of the court is well founded, but will look to the bill itself, and where this is insufficient, there was no reversible error. 6. —Same—Evidence—Identity of Property. Where, uitm trial of burglary, there was nothing in the evidence to suggest more than one burglary or tending to raise the question of the connection of any one therewith save the defendant and those indicted with him, there was no reversible error in permitting the owner to show where lie found his property which was in the house and taken therefrom. 7. —Same—Requested Charge—Closed Door—House and Room. Upon trial of burglary, the requested charge asked, with reference to whether the doors were open or not, was properly refused, for the same mentioned only the doors of the house, omitting entirely the submission of the question as to whether the doors of the room in which the property was were open; asi burglary may be committed by entering a room which is closed, as well as by entering a house.
86 Tex. Crim. 247McCullers v. State (1919)
1. —Injuring Fence of Another—Want of Consent. Upon trial of unlawfully; breaking and pulling down and injuring the fence of another without his‘consent, it was essential that the proof should show that the alleged owner of the fence did not give his consent, and in the absence of said proof the same was reversible error. Following: Frazier v. State, 18, Texas Grim. App., 442. 2. —Same—Chaufficiency of Evidence—Conflicting Testimony. Where, upon trial of unlawfully injuring the fence of another, there was a conflict of testimony as to whether the injury to the fence was due to the act of the defendant, the jury was authorized to settle this conflict, but in the absence of testimony that the alleged owner was in fact the owner and did not give his consent, the judgment must be reversed and the cause remanded.
86 Tex. Crim. 249Biscoe v. State (1919)
The opinion states the case.
86 Tex. Crim. 251Ex Parte Kemper (1919)
Prom Limestone County. Original habeas corpus proceeding asking release from arrest under a judgment of contempt in the District Court, imposing a fine of $100 and two days confinement in the county jail.
86 Tex. Crim. 252Gerlich v. State (1919)Affirmed
1. Cbiminal law <3=958(6) — New tbial fob NEWLY DISCOVEEED EVIDENCE. An affidavit of only one witness to the effect that the main witness was hostile to accused was not sufficient to require the granting of a motion for a new trial on the ground of newly discovered evidence. 2. Cbiminal law <3=939(1) — New tbial fob NEWLY DISCOVEBED EVIDENCE. On motion for a new trial on the ground of newly discovered evidence, defendant should show why the evidence was not offered on the trial, or that it was unknown to defendant or his attorney and could not have been discovered by the use of reasonable diligence.
86 Tex. Crim. 252Gerlick v. State (1919)
The opinion states the case.
86 Tex. Crim. 253Black v. State (1919)
1. —Illegal Practice of Medicine—Registration. Where, upon trial of a violation of unlawful practice of medicine, by failing to register with the district clerk in the county of the prosecution in the manner and form provided by law, the evidence sustained the conviction, there is no reversible error. 2. —Same—Constitutional Law —Statutes Construed. The Act of the Legislature, chapter 6, title 12, Vernon’s Penal Law, etc., regulating the practice of medicine is constitutional and includes all persons who shall treat, or offer to trat any disease or disorder, mental or physical, or any physicial deformity or injury, by any system or method, or to effect cures thereof, and charge therefor directly or indirectly money or any other compensation. Following: Ex parte Collins, 57 Texas Crim, Rep., 2, and other cases. 3.—Same—Information—Pleading. Where, upon trial of unlawfully practicing medicine, the information followed almost literally the language of the statute, and conformed to the rules of pleading, the same was sufficient.. i.—Same—Requested Charge. Upon trial of unlawfully practicing medicine, the requested charge was not applicable to the law and facts of the case, the same was properly refused.
86 Tex. Crim. 255Vaughn v. State (1919)
The opinion states the case.
86 Tex. Crim. 260Haverbekken v. State (1919)
Assault—Sufficiency of the Evidence. Where the State’s evidence showed that one of the defendants had in his possession a large rock, and the other had a stick and were within a few steps from the injured party, and approached him with the rock and stick drawn in a striking attitude, using threatening language, etc,, a conviction for assault is sustained under article 1008, penal code. Following: Yawn v. State, 37 Texas Crim. Rep., 205, and other cases.
86 Tex. Crim. 261Jones v. State (1919)
The opinion states the case.
86 Tex. Crim. 262Gordon v. State (1919)
The opinion states the case.
86 Tex. Crim. 264Axtell v. State (1919)
The opinion states the case.
86 Tex. Crim. 265Petterson v. State (1919)Affirmed
Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge. Willie Petterson was convicted of theft, and appeals.
86 Tex. Crim. 265Perrerson v. State (1919)
Tried below before the Hon. P. A. Turner, judge. Appeal from a conviction of theft; penalty, two years imprisonUient in the penitentiary. The State’s testimony showed that some of the alleged stolen Property was found in defendant’s house, and some of it was found in her trunk. The defendant denied thac she stole the prop-f*' .y.
86 Tex. Crim. 266Jenkins v. State (1919)
Aggravated Assault—Recognizance—Statutes 'Construed. The Statute, 2 Vernon's Criminal Statutes, articles~949, 920, require that the recognizance in misdemeanor cases must be made iñ substantial compliance with the form prescribed in the statute, and where this was not done the appeal must be dismissed.
86 Tex. Crim. 267Flores v. State (1919)
Forgery—Accomplice—Charge of Court. Where, upon trial of forgery, the evidence showed that one of the witnesses for the State was an accomplice, the failure of the court to charge thereon, to which failure defendant excepted, was reversible error.
86 Tex. Crim. 269Chadwick v. State (1919)Reversed and cause remanded
Steed, Judge. W. E. Chadwick was convicted of keeping and permitting to be kept a bawdyhouse on premises leased and controlled by him, and he appeals.
86 Tex. Crim. 271Alsobrook v. State (1919)
1. —Wilfully Permitting Hogs to Run at Large—Information. Upon trial of wilfully permitting hogs to run at large, where the information failed to allege the original petition for the election; an order by the Commissioners’ Court for the election, the order by the county judge declaring the result of the election and a proclamation thereof, the same was bad on motion to quash. Following: Hill v. State, 124 S. W. Rep., 940. 2. —Same—Petition for Election—Description of Boundaries. Where, upon trial of willfully permitting hogs to run at large, the evidence showed that the original petition for the election failed to allege with sufficient certainty the subdivision of the county where the law should apply after the election, the same was insufficient and all proceedings thereunder were invalid. Following: Ex parte Gulledge, 57 Texas Crim. Rep., 156, and other cases.
86 Tex. Crim. 272Poldrack v. State (1919)
The opinion states the case.
86 Tex. Crim. 274Carneal v. State (1919)
1. —Burglary—Occupancy—Election by State—Verdict. Where, upon trial of burglary, the indictment in separate counts charged that the burglarized house -was occupied by different persons, but the evidence showed that one of these persons was the owner of the house, and leaving his furniture therein to go to another state with the view that he. might locate there, requested his brother, the other person alleged in the indictment, to look after the property in the house and to see that the doors were locked, etc., with which request his brother complied, and there was a general verdict of guilty, the contention that there was a failure to prove occupancy as alleged, and to require the State to elect was untenable and there was no error. Following: Pyland v. State, 33 Texas Crim. Rep., 382, and other rases. 2. ——Breaking—Locked Doors. Where, upon trial of burglary, it was shown that the particular room from which che articles were taken was closed, a conflict in the evidence whether the doors of the entire house were closed was immaterial and there was no reversible error. 3. —Same—Continuance—Practice on Appeal. Where the record on appeal showed that the alleged absent testimony set out in the motion for continuance would not have brought about a different result, there was no reversible error. 4-—Same—Want of Consent—Charge of Court. Where, upon trial of burglary, it was shown that the alleged property was taken from the house alleged to have been burglarized without the consent of either of the occupants, there was no error in the court’s failure to give a requested charge on this subject. 5.—Same—Bill of Exceptions—Practice, on Appeal. Upon trial of burglary, where the bill of exceptions failed to set out explanatory facts to indicate that there was harm in admitting certain testimony with reference to the description of certain property taken from the house, there was no reversible error; and the same rule applied as to the refusal of a requested charge, nor was it error to show that certain property was in possession of defendant which was taken from the burglarized premises. Following: Davidson v. State, recently decided.
86 Tex. Crim. 276Johnston v. State (1919)
The opinion states the case.
86 Tex. Crim. 276Johnson v. State (1919)Affirmed
Appe’al from District Court, Angelina County; L. D. Guinn, Judge. Henry Johnson was convicted of murder, and he appeals.
86 Tex. Crim. 281Kelley v. State (1919)
1, —Arson—Evidence—Imputing Grime to Another—Newly Discovered Evidence. Where, upon trial of arson, defendant in a motion for new trial produced affidavits of two witnesses showing newly discovered evidence, and placing the accomplice and unknown companions in proximity to the destroyed property under suspicious circumstances a short time before the fires were lit, and showed that defendant was in his dwelling out of sight of, and some distance from, the locality of the accomplice and his companion at the time, and the record on appeal further showed that outside of the testimony of this accomplice the evidence was entirely circumstantial, a new trial should have been granted. Following: DuBose v. State, 10 Texas Crim. App., 230, and other cases. 2. —Same—Argument of Counsel—Traveling Outside of Becorti, Where State’s counsel, in closing the argument, stated to the jury in substance that just before the fire the lumber market was bad and that the jury well knew of a great many big stacks of lumber around in the vicinity at different places which could not be sold, and there was no such evidence introduced, the omission could not be lawfully supplied by the unsworn statement of counsel for the State, and the same was reversible error.
86 Tex. Crim. 285Beland v. State (1919)
The opinion states the case.
86 Tex. Crim. 288Howard v. State (1919)
1. —Obstructing Pubic Road—Appeal Bond—Practice on Appeal. Under the statute as amended, article 918 C. O. P., the sheriff had authority to approve an appeal bond in a misdemeanor case, after the expiration of the term of the court. 2. —Same—Statement of Facts—County Court. Where the County Court entered an order allowing sixty days after the adjournment of court in which to file a statement of facts, during which time the same was filed, the motion to strike out the same on appeal is overruled. Following: Cribble v. State, recently decided. 5.—Same—Sufficiency of the Evidence. Where, upon trial of obstructing a public road, the evidence was sufficient, under a proper charge of the court, to sustain the conviction, there was no reversible error. 4.—Same—Objections to Charge—Requested Charges—Words and Phrases. Where the record failed to show that' the trial court approved defendant’s exception to the court’s charge and refusal to requested charges, the same was insufficient; however, the main objection urged being to the definition of the word willful, which was sufficient, there was no reversible error. Following: Cornelison v. State, 4o Texas Grim. Rep., 159.
86 Tex. Crim. 291Cone v. State (1919)
l. —Accomplice to Theft —Other Offenses —Evidence —Buie Stated. While it has been held that evidence of extraneous crime may be admitted in evidence to develop the res gestae, or show intent or system, it will be observed that the authorities draw a broad distinction between the doctrine of system and systematic crime, and upon trial of accomplice of theft of an automobile, testimony of other thefts of automobiles committed by the principal should not have been admitted. Following: Long v. State, 39 Texas Crim. Rep., 537, and other cases. 2. —Same—Accomplice—Charge of Court—Principal—Theft. Where defendant was prosecuted as an accomplice to the theft of an automobile, it was necessary for the State to prove that the party committing the theft was a principal; that defendant advised and encouraged him to commit the theft, and that defendant was to receive the stolen auto and pay the principal for it, and the charge on accomplice testimony should haven been given on these lines. 3. —Same—Continuance—Practice on Appeal. Where the judgment is reversed and the cause, remanded for other reasons, the overruling of the application for continuance need not be re-, viewed. 4.—Same—Evidence—Declarations of Third Parties. Upon trial of theft as an accomplice, testimony as to subsequent acts and statements of others was not admissible, where the defendant was in no way a party thereto or had knowledge thereof.
86 Tex. Crim. 291Haverbekken v. State (1919)Affirmed
Assault—Sufficiency of the Evidence—Companion Case. Where the same questions were decided adversely to appellants in a companion case, it is unnecessary to discuss the same and the judgment is affirmed.
86 Tex. Crim. 296West v. State (1919)
The opinion states the case.
86 Tex. Crim. 298Luman v. State (1919)
1.—Manslaughter—Misconduct of Jury—Facts not in Evidence. Where, upon trial of murder and a conviction of manslaughter, it was shown, in motion for new trial that the jury discussed the fact of another homicide, implicating defendant therewith, and that his codefend^nt had been convicted thereof, neither of these questions having been admitted in evidence upon trial, but occurred after the retirement of the jury and before reaching their verdict, the same was reversible error. Following: Horn v. State, 50 Texas Crim. Rep., 404, and other cases. 2.—Same—Argument of Counsel—Practice on Appeal. Where the judgment is reversed and the cause remanded for other reasons, the objection to the argument of State’s counsel need not be considered.
86 Tex. Crim. 301Ex Parte Carroll (1919)
The opinion states the case.
86 Tex. Crim. 304McDonald v. State (1919)
1.—Local Option—Complaint—Information—Buie Stated. A misdemeanor in the County Court cannot be prosecuted without a complaint as a predicate for the information. 2. —Same—Continuance—Practice on Appeal. Where the application for continuance alleged that’ defendant’s wife had been duly subpoenaed but was pregnant and unable to attend the court at the time of the trial and was sick in bed, the continuance should have been granted. Following: Phillips v. State, 35 Texas Crim. Rep., 483, and other cases. 3. —Same—Admissions by State—Continuance—Practice in County Court. Where defendant filed an application for continuance on account of the testimony of his sick wife, and the State offered the defendant the right to place before the jury the testimony expected to be proved by the absent wife, which was declined by defendant, without admitting the truth of such testimony, this would not defeat the application, and it appearing from the record that said absent testimony was material the' continuance should have been granted.
86 Tex. Crim. 307Middleton v. State (1919)
1. —Murder—Death Penalty—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of that offense, inflicting the death penalty, the evidence sustained a conviction under a proper charge of the court, there was no reversible error. 2. —Same—Accomplice—Charge of Court—Words and Phrases. Where, upon trial of murder, the court in his charge on accomplice testimony instructed the jury that there must be other evidence than that of the accomplice tending to connect the accused with the offense charged, there was no reversible error, as the words, “tending to connect” are not used as referring to the accomplice’s testimony, but to the corroborated testimony. 3. —Same—Evidence—Accomplice—County Jail—Practice in District Court. Where defendant complained that the accomplice who turned State’s evidence was brought from the county jail to testify and was therefore under intimidation, but the record showed that there was no statutory affidavit for severance and no tenable objection made before this witness testified, there was no error in overruling the objection, it appearing from the record that the case against the accomplice had been dismissed. 4. —Same—Charge of Court—Bill of Exceptions. Where the bill of exceptions presented all of the exceptions to the court’s charge, none of which pointed out specifically by quotation or paragraph, the error complained of, it need not be reviewed, besides, there was no reversible error. 5. —Same—Charge of Court—Principal Offender. Upon trial of murder, the court did not err in instructing the jury that one may be a principal offender who is not bodily present when the offense is committed, as this is in accord with the statute and decisions. 6. —Same—Principals—Charge of Court. Where, upon trial of murder, the evidence raised the issue of principals, the court properly submitted a charge thereon. 86 Texas Criminal Reports. [December, 7. —Same—Accomplice—Principals—Rule Stated. An accomplice is one who has completed his offense before the crime is actually committed, and whose liability therefor is depending upon his previous acts in connection therewith, and in determining the question as to the attitude of one whose connection is shown both by the testimony of the accomplice and the attendant circumstances to have existed before and after the commission' of the crime, we may look to the rule above mentioned in determining who are accomplices, and who are principals. Following: Cook v. State, 14 Texas Crim. App., 96, and other cases. 8. —Same—Principal—Bodily Presence—Case Stated—Removing Witness. Referring to the contention of defendant that one cannot be a principal who is not bodily present at the time of the commission of the offense, it may be remarked that it is seriously questionable under this record whether defendant was absent from the scene at the time of the killing; besides, one who purposely removes a possible or probable witness for the purpose of preventing said witness from witnessing the proposed crime is within the definition of principal, and this question is one of fact for the jury in the instant case. 9. —Same—Accomplice—Corroboration—Rule Stated—Charge of Court—Principal. It is not necessary, under the authorities, to corroborate an accomplice’s entire narrative, nor all of his testimony, and moreover, where the evidence showed a conspiracy between the accomplice and defendant, the acts of each in furtherance of a common design, as long as the same continued, were the acts of both and each would be a principal in any crime committed in the execution of such design; besides, there was no exception to the manner of the submission of the court’s charge on principal. 10. —Same—Evidence—Identification of Deceased—Clothes. Upon trial of murder, when the remains of the deceased were identified by the skeleton, clothes, hair, etc., all of which were found under the direction of the accomplice and identified as those of the deceased, there was no error to exhibit her clothing before the jury, as the identification of the deceased was one of the issues; nor was it error to admit testimony as to these items of bones, hair, etc., because they were not positively identified. 11. —Same—Grand Juror—Evidence—Allegation—Proof—Means Used. Where, upon trial of murder, it was alleged in the indictment that the grand jury did not know the means by which deceased was killed, there was no error to permit the foreman of the grand jury to testify about the efforts made by the grand jury to ascertain such means, and their inability to do so, in connection with the exhibition before the jury of a hammer and hatchet found in the car of deceased after her death. 12. —Same—Rehearing—Charge of Court—Rule Stated—Bills of Exception. Under the statutes a charge of the court must be excepted to in due time so that the supposed errors which are pointed out may be corrected, etc., and a failure to so except is held to cure all errors in the charge not fundamental; which rule was not observed in the instant case; however, in consideration of the severe penalty inflicted they will be considered. IS.—Same—Charge of Court—Principals—Bodily Presence of the Accused— Rule State. Where, upon trial of murder, the evidence raised the issue of principals and the court instructed the jury that all persons are principals who are guilty of acting together in the commission of an offense, and that when an offense has been actually committed by one or more persons the true criterion for determing who are principals, is, did the parties act together in the commission of the offense; was the act done in pursuance of a common intent in pursuance of a previously formed design in which the mind of all united and concurred? if so, then the law is, that all are alike guilty; provided the offense was actually committed during the existence and in the execution of the common design and intent of all, whether in point of fact all were actually, bodily present on the ground when the offense was actually committed or not, and applying this law to the facts of the case, there was no reversible error. Following: Bean v. State, 17 Texas Crim. App., 60, and other cases overruling: Yates v. State, 42 S. W. Rep., 296, and other cases; distinguishing: Dawson v. State, 41 S. W. Rep., 599. 14. —Same—Principals—Accomplices—Line of Cleavage. In every case, no matter what phase of the law is involved, the evidence must show, and the charge of the trial court submit, that at the time of the commission of the offense the parties must be acting together, each doing some part in the execution of the common purpose in order to make him a principal, and just there lies the line of cleavage between, accomplices and principals, under articles 74. 76, 78 Penal Code. Following: Cook v0. State, 14 Texas Crim. Rep., 96, and where the court’s charge on principals, as applied to the facts in the instant case, followed this rule there was no reversible error, besides, in the instant case the defendant was either secreted near by the scene viewing the crime he had advised and therefore present or endeavoring to secure the safety and concealment of his coprincipal. 15. —Same—Evidence—Bill of Exceptions—Grand Juror—Indictment. A general objection to the testimony of the witness, a part of which is material and competent, will not avail in this court; besides, -the evidence to which objection was made was admissible as the indictment alleged that the means or instruments usei m the commission of the homicide were unknown to the grand jury and it therefore became material to show that fact by the foreman of the grand jury.
86 Tex. Crim. 322Saunders v. State (1919)Reversed, and cause remanded
R. Pearman, Judge. Scire facias on bail bond by the State against Owen Saunders and others. Judgment for plaintiff, and defendants appeal.
86 Tex. Crim. 322Sanders v. State (1919)
1.—Scire Facias—Citation—Judgment Final. Where, upon scire facias proceedings, the record on appeal showed that the principal gave bond which was forfeited, and none of the surieties were served by citation to answer the forfeiture, except one, but judgment final was taken against all the surieties, the same was reversible error. 2. —Same—Rule Stated—Citation of Surieties—Practice. The rule is that where there are more parties than one on the bond, and the surieties have not all been served, a judgment cannot be rendered against them, even by default, and unless a dismissal is had of those not served a final judgment cannot be taken. 3. —Same—Judgment—Forfeiture of Bail Bond—Statutes Construed. Where the sureties are jointly and severally liable, the judgment must so decree, and it is not sufficient to render a judgment only specifically against each surety for the amount stipulated in the bond; this being a statutory bond. 4.—Same—Bail Bond—Description of Offense—Buie Stated. It is necessary that the scire facias shall state the offense with which the principal is charged, and unless this is done, final judgment cannot he correctly rendered upon the bond, and where the recitation of the offense in the hail bond was that the principal stood charged with the offense of selling liquor in violation of the local option law, the same was insufficient. Following: Stephens v. State, 50 Texas Crim. Rep., 531, and other cases.
86 Tex. Crim. 324Petty v. State (1919)
1. —Murder—Self-defense—Charge of Court—Defendant’s Standpoint. Where, upon trial of murder, there was nothing in the evidence indicating that defendant was called upon to resort to any means other than force sufficient to repel the attack of the deceased and avoid the injury to himself from his standpoint, a charge of the court under the law of self-defense that homicide' is justifiable in the protection of the person against any unlawful and violent attack, but in. such cases all other means must be resorted to for the prevention of the injury, was reversible error. Following: Kendall v. State, 8 Texas Crim. App., 582, and other cases. 2. —Same—Provoking Difficulty—Self-defense—Charge of Court. Where, upon trial of murder, the evidence did not raise the issue of provoking the difficulty, it was reversible error to submit a charge thereon limiting the defendant’s right of self-defense. Following: Young v. State, 53 Texas Crim. Rep., 417, and other cases. 3. —Same—Aggravated Assault—Charge of Court. . In the event of another trial under like evidence, the court should1 submit a charge on aggravated assault arising under article 1149, Penal Code. Following: Hill v. State, 11 Texas Crim. App., 470, and other cases.
86 Tex. Crim. 327Washington v. State (1919)
Tried below before the Hon. John S. Prince, judge. Appeal from a conviction of burglary of a private residence; penalty, five years imprisonment in the penitentiary.
86 Tex. Crim. 327Mince v. State (1919)Affirmed
C. Joiner, Judge. Malcolm Mince was found guilty of being a delinquent child and ordered confined in the State Industrial School, and he appeals.
86 Tex. Crim. 329Jackson v. State (1919)
1. —Theft of Hog—Sufficiency of the Evidence. Where, upon trial of theft of a hog, the evidence was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Evidence—Bill of Exceptions. Where, upon trial of theft of a hog, defendant complained of not being permitted to show that the injured party was not able to give any description of the alleged stolen hogs other than their marks, but the bill of exceptions did not manifest any harmful error, there was no reversible error. 2.—Same—Evidence—Bill of Exceptions. Where the bill of exceptions did not disclose the State’s objection to defendant’s question, or point out the materiality or relevancy of the injury, the same was insufficient, and there was no reversible error. Following: Luttrell v. State, 14 Texas Crim. Rep., 147, and other cases.
86 Tex. Crim. 331Freeman v. State (1919)
1. —Attempt to Commit Burglary—Private Residence—Insufficiency of the Evidence. Where the indictment charged the attempted entry oí a private residence Avith intent to commit theft, and he evidence failed to shoAV the specific intent Avhich actuated him in attemnting to enter the house, the eonvictio?! could not be sustained. Following: Sedwick v. State, 57 Texas Grim. Rep., 420, and other cases. 2. —Same—Want of Consent. Where the alleged owner of the private residence in a trial for burglary was shown to be dead at the time of the trial, but circumstances Avere in eAddence to show hi'- want of consent, there was no reversible error on that ground. Following: Franklin v. State, 53 Texas Grim. Rep., 547, and other cases. S.-rSame—Allegation and Proof—Rule Stated. Where the indictment alleged that the attempt to commit burglary in a private residence was with intent to commit the crime of theft, the same must be proved as alleged.
86 Tex. Crim. 333Dollar v. State (1919)
1. —Pandering—Evidence—Conversation of Third Parties.—Harmless Error. Where, upon trial of pandering, the State’s theory was that defendant was keeping and was the propritor of a house of ill-fame, and that he attempted to procure and was concerned in procuring a certain female to become an inmate thereof, there was no reversible error- to admit testimony that a conversation occurred between a certain woman and another party in the lobby of said house in an undertone, about going into a room in said house and that she did not know whether defendant heard this conversation as this testimony was admissible to show that defendant was keeping a house of ill-fame, the evidence further showing that said woman was a prostitute and occupied one of the rooms pointed out by said third party in said house for that purpose, and at the most the admission of this testimony was harmless error; besides the bills of exception were insufficient. 2. —Same—Evidence—Conversation—Third Party. Where, upon trial of pandering, the evidence showed that the woman alleged in the indictment to have been induced by defendant to become an inmate in a house of ill-fame under his control, left and went to another place because her baby was ill, there was no error in admitting in evidence a conversation which occurred between the owner of the second place and the defendant who went there to secure the return to his place of said female, the defendant being in such position that the witness heard the conversation; besides, the testimony was admissible to show that defendant was there to induce the said female to return to the house of ill-fame. 3. —Same—Evidence—Circumstances—Motive. Where, upon trial of pandering, the evidence showed that the defendant enticed a female to enter his house of ill-fame, there was no reversible error in admitting testimony that this female left said house of ill-fame to secure better attention of her sick infant, and while this was- not of particular moment, the question was whether defendant sought to induce her to return to the house of ill-fame.
86 Tex. Crim. 337Webb v. State (1919)
The opinion states the case.
86 Tex. Crim. 339Gatlin v. State (1919)
1. —Murder—Assault to Murder—Sufficiency of the Evidence—Charge of Court. Where, upon trial of murder and a conviction of assault to murder, the evidence raised the issue of assault to murder and the trial court submitted murder,' manslaughter, assault to murder, aggravated assault, and self-defense, and there was no exception to the charge of the court on assault to murder, and the jury had been instructed that they must first find defendant not guilty of any grade of homicide before considering whether he was guilty of an assault to murder, there was no reversible error. Following: Borrer v. State, 83 Texas Crim. Rep., 198; 204 S. W. Rep., 1003. 2. —Same—Requested Charge of Court. Where, upon trial of murder and a conviction of assault to murder, the evidence raised the issue of said latter offense, there was no reversible error to refuse a requested charge not to submit murder and assault to murder. 3. —Same—Evidence—Res Gestae—Declaration of Third Party. Where, upon trial of murder and a conviction of assault to murder, the State’s counsel asked one of defendant’s witnesses if he heard defendant’s son, just after the difficulty in which deceased was cut, say to his father that he ought not to have cut him, to which the witness replied that he did not remember, whereupon he was asked whether he did not so testify before the grand jury and was shown the book purporting to contain the grand jury evidence to refresh his memory, but which was not offered in evidence, the witness continued to answer that he did not remember, there was no reversible error; besides, this matter was res gestae and admissible. Following: Rice v. State, 49 Texas Crim. Rep., 576, and other cases. 4. —Same—Charge of Court—Manslaughter—Entire Charge Must Be Considered. Where, upon trial of murder and a conviction of assault to murder, the defendant complained that the court’s charge on manslaughter was too restrictive, in that it required that the provocation must arise at the time of the homicide, but the record showed that when said charge is considered as a whole, and not judged by isolated paragraphs, the same is sufficient, there is no reversible error. 5. —Same—More than One Assailant—Charge of Court. Where, upon trial of murder and a conviction of assault to murder, there was no evidence that the mother of the deceased made an attack upon defendant at the time of the homicide, or a combined attack by deceased and his mother, there was no error in refusing a charge on such state of facts. 6. —Same—Dying Declarations—Predicate. Where, upon trial of murder and a conviction of assault to murder, objection was made to the dying declarations of deceased, but the record on appeal showed that a proper predicate was laid for the introduction of such dying declarations, there was no reversible error. Distinguishing: Walker v. State, 206 S. W. Rep., 96. 7. —Same—Assault to Murder—Sufficiency of the Evidence—Malice. Where, upon trial of murder and a conviction of assault to murder, there was evidence sufficient to show a deadly attack by defendant upon deceased, preceded by a serious threat on the part- of the defendant, all of the elements of an unjustifiable homicide existed, as malice may be conceived and executed in the shortest possible time, and a conviction for assault to murder is sustained. 8. —Same—Declaration of Third Party—Res Gestae. Upon trial of murder and conviction of assault to murder, the statement attributed to the son of defendant and which he denied, upon which the State attempted to lay a predicate by his testimony before the grand jury, was one which was made directly by said son to the defendant immediately after the occurrence and was therefore res getsae, and one vhich called for a reply from defendant, and none being made was a fact to be considered by the jury. 9. —Same—Requested Charge—Manslaughter—Assault to Murder—Rule Stated. Murder, under the code, includes every degree of homicide and of assault, and where the evidence raised the issue of murder, manslaughter, assault to murder, aggravated assault, and self-defense, all of which the court submitted to the jury, who found the defendant guilty of assault to murder, there was no reversible error, and defendant’s contention that the facts only raised the issue of manslaughter necessarily implies death as the result of the act of the accused, and the court did therefore not err in refusing defendant’s requested charge that the jury could not find defendant guilty of murder or assault to murder. 10.—Same—Dying Declaration—Buie Stated. The contention of defendant that dying declarations are only admitted in evidence in homicide cases, and that he having been acquitted of homicide, the admission of the dying declaration of deceased should be held reversible error is untenable; besides, there is no issue that these declarations are not upheld by the other testimony of the case.
86 Tex. Crim. 348Wooldridge v. State (1919)
1. —Assault to Rape—Sufficiency of the Evidence. Where, upon trial of rape and assault to rape, the defendant was convicted for assault with intent to rape upon a female under the age of consent, and the evidence supported the conviction, there was no reversible error. 2. —Same—Age of Prosecutrix—Opinion of Witnesses. Upon trial of assault with intent to rape, there was no error in admitting the testimony of the managers of an orphanage who intimately knew the prosecutrix, and who stated as their opinion that she was at the time of the commission of the offense twelve or thirteen years of age, and that weight of this testimony was tor the jury, and this court cannot conclude that it was insufficient to support the verdict, 3. —Same—Evidence—Age of Prosecutrix—Proof of Age—Rule Stated. Upon trial of assault with intent to rape there was no error in admitting testimony by the prosecutrix that all she knew as to her age she got from defendant, who told her that she was only a year and one-half old when he adopted her which would make her thirteen years of age at the time of the commission of the offense. Following: Sheppard v. State, 56 Texas Crim. Rep., 605, and other cases; besides, there was testimony of witnesses who. heard defendant testify at another time and place who bore out the testimony of prosecutrix. 4. —Same—Expert Opinion—Age of Prosecutrix. We doubt if expert, opinion is a necessary condition in the instant case, but, if it, were the two State’s witnesses who based their opinion on the appearance, etc., as to the age of the prosecutrix, were shown to be qualified experts. Following: Donley v. State, 71 S. W. Rep.,' 958, and other cases. 5. —Same—Force—Charge of Court—Penetration. Where, upon trial of assault to rape, the evidence showed that there, was sufficient force to effect penetration and this was pointedly submitted in the court’s charge to the jury, there was no reversible error. 6. —Same—Age of Prosecutrix—Loco Parentis—Evidence. The evidence of the prosecutrix that defendant told her her age, was admissible both as a statement against the interest made by the accused, and as a statement relative to her age made by one standing in loco parentis. 7. —Same—Function of Jury—Discretion—Practice on Appeal. The jury are primarily the judges of the credibility of the witnesses and the weight to be given their testimony, and unless there appears a manifest abuse of their discretion in these matters, the verdict will not be disturbed. 8. -—Same—Credibility of Witness—Sufficiency of the Evidence. The matters in evidence concerning a certain letter written by prosecutrix after the alleged commission of the offense, etc., attacking her credibility does not justify this court to hold that the jury had no right to accept as true her testimony against the defendant. 9. —Same—Assault to Rape—Sufficiency of the Evidence. The contention that the conviction of assault with intent to rape is unwarranted because of the fact that prosecutrix testified to the completion of the act of sexual intercourse is untenable as the testimony of the physician showed that at the time of his examination the private parts of the alleged female were inflamed, sore, etc., and that probably only partial or attempted intercourse was effected, and the jury was justified in finding their verdict. 10. —Same—Force—Female Under Age—Charge of Court. Where, upon trial of assault with intent to rape upon a female under the age of consent, the evidence was sufficient to show that character of force necessary under our decision and the statute, under a proper charge of the court, there was no reversible error.
86 Tex. Crim. 352Hornbuckle v. State (1919)
1. —Burglary—Private Residence—Allegation and Proof. The term private residence includes any building or room occupied and actually used by any person or persons as a place of residence, and, where upon trial of burglary of a private residence, the evidence showed that the alleged stolen property was taken from the kitchen, the same was included as part of the private residence within the meaning of the statute. Following ¡Holland v. State, 45 Texas Crim. Rep., 172, and other cases. 2. —Same—Accomplice—Corroboration—Charge of Court. Where, upon trial of burglary of a private residence, the State’s witness was so connected with the crime in receiving or concealing the alleged stolen property with knowledge of its theft, as to make him an accomplice, the court should have charged on accomplice testimony as requested, and his failure to do so was reversible error. Following: Johnson v. State, 58 Texas Crim. Rep., 245, and other cases.
86 Tex. Crim. 354Morrow v. State (1919)
1. —Scire Facias—Bail Bond—Practice on Appeal. Where the principal in a bail bond was arrested under a capias after the return of the indictment, the sheriff was not authorized to take the bail bond without a legal order of the court, and the bond taken theretofore under the writ of habeas corpus was of no effect; the indictment charging a capital offense. 2. —Same—District Court—Jurisdiction—Transfer—Motion to Quash. Where the District Court which approved the bail bond had no jurisdiction, inasmuch as that the case had not been transferred from another District Court, it had no jurisdiction to enter an order of forfeiture of same. Following; Walker v. State, 214 S. W. Rep., 331, and other cases, and the motion to quash the bond should have been sustained. Following: Ex parte Wilson, 20 Texas Crim. App., 498, and other cases.
86 Tex. Crim. 356Wilson v. State (1919)
Carrying Pistof—Theory of Defense—Charge of Court. Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant had borrowed the pistol to carry to his home, and on his way used it to defend his brother, and then turned back to his brother’s store to ascertain whether he was seriously hurt and there left the pistol, the same was not a violation of the law and the court should have so instructed the jury, and a failure to do so was reversible error.
86 Tex. Crim. 358Quinney v. State (1919)
The opinion states the case.
86 Tex. Crim. 362Minor v. State (1919)
Carrying Pistol—Postponement—Practice in County Court. Where, upon trial of unlawfully carrying a pistol, defendant, after the trial had begun, asked the court below to postpone or continue the case, because of the illness of his wife, which the court refused to do, and it appeared from the record on appeal that it was not alleged or claimed that said wife was a witness in the case, nor that he had been deprived of any right by the court’s action, "there was no reversible error..
86 Tex. Crim. 363Bell v. State (1919)
The opinion states the case.
86 Tex. Crim. 364Gipson v. State (1919)
The opinion states the case.
86 Tex. Crim. 365Cotton v. State (1919)
Murder—Manslaughter—Companion Case—Practice on Appeal. Where the issues presented are passed on in a companion case the same need not be reviewed on appeal in the instant case, and the judgment is reversed and the case remanded.
86 Tex. Crim. 366McCormick v. State (1919)
1.—Theft—Incident—Two Counts—Verdict. Where the indictment charged the defendant with theft in one count and in another with receiving, etc., stolen property, and the court under a general verdict applied the same to the count charging theft, there was no error. 2. —game—Accomplice—Charge of Court, Where, upon trial of theft, the evidence raised the issue of accomplice testimony, the court should have submitted a requested charge submitting this issue to the jury, and a refusal to do so is reversible error. Distinguishing: Dever v. State, 37 Texas Crim. Rep., 396, and other cases. 3. —Same—Confessions—Accomplice—Charge of Court. It is entirely immaterial, to a decision of this question of accomplice testimony, to consider the fact that defendant contradicted himself in his confession. 4. —Same—Requested Charge—Practice on Appeal, Where the requested charge was covered by the main charge there was no error in refusing it. 5. —Same—Suspended Sentence—Evidence—Moral Turpitude. Where the defendant pleaded for a suspended sentence, there was no error in admitting testimony that he had been convicted for playing poker, although this did not involve moral turpitude.
86 Tex. Crim. 366Williams v. State (1919)Affirmed
CRIMINAD DAW <&wkey;273 — EVIDENCE TO FIX PENALTY AFTER PDEA OF GUIDTY. ■ A plea of guilty admits all the criminating facts alleged, and evidence is admitted only for the purpose of enabling the jury to determine the penalty.
86 Tex. Crim. 366Williams v. State (1919)
Manufacture of Intoxicating Liquors—Plea of Guilty. Where, upon trial of unlawfully manufacturing intoxicating liquors, defendant contended in his motion for new trial that it was not shown that the liquor was intoxicating, but it appeared from the record on appeal that defendant had pleaded guilty, he could not complain; besides, the statement of facts showed that the. liquor was intoxicating.
86 Tex. Crim. 369Cassi v. State (1919)
1. —Carrying Pistol—Buie Stated—Principal and Agent. One who is directed by an employer to carry a pistol, one time, from one place of business to another, may lawfully execute said order, as what one might lawfully do for himself he may do by an agent; but he cannot carry such pistol habitually or in a round-about way or as a subterfuge, and where, upon trial of unlawfully carrying a pistol, the court below refused to permit the defendant and his witnesses to show that he was so employed, the same was reversible error. Following: Huff v. State, 51 Texas Crim. Rep., 441, and other cases. 2. —Same—Date of Offense—Complaint—Filing. The complaint having been filed on the 22nd of May and the State’s witness testifying that he saw defendant with the pistol on or about the 21st of said month but it nowhere appeared that this was before the complaint was filed, the proof should have shown that the offense was committed before such filing.
86 Tex. Crim. 371Jones v. State (1919)
1. —Murder—Manslaughter—Charge of Court—Buie Stated. Where there are any circumstances that would mitigate or reduce the offense to a lower grade than that of which defendant was convicted, he is entitled to the benefit of such circumstances under appropriate instructions from the court as to the law as thereto applicable, and where, upon trial of murder and a conviction thereof, the record on appeal showed that the evidence raised the issue of manslaughter, a failure to charge thereon although requested is reversible error. Following: Hutchinson v. State, 40 Texas, 12, and other cases. 2. —Same—Buie Stated—Theory of Defense—Charge of Court. Wherever the evidence presents an issue favorable to the accused, the trial court should not diregard it, but should fairly and freely submit such issue for the consideration of the jury under appropriate instructions, and an omission to do so cannot be treated by this court as immaterial. Following: Moore v. State, 15 Texas Crim. App., 1, and other cases. 3. —Same—Manslaughter—Charge of Court—Case Stated. If it reasonably appeared, upon trial of murder, to defendant that he was in danger of serious bodily harm, injury or death at the hands of deceased, falling short of self-defense, and he was thereby aroused to such terror or resentment by such appearance as to render his mind incapable of cool reflection, he would be entitled to a charge on manslaughter. Following: McLaughlin v. State, 10 Texas Crim. App., 340, and. other cases. 4. —Same—Rule Stated—Manslaughter—Charge of Court. Where there is a doubt as to testimony, its cogency and effect, and its probable bearing upon the minds of the jury in their decision of the case, it redounds to the benefit of the accused and an appropriate charge should be given to cover that doubt. 5. —Same—Continuance—Practice on Appeal. When the judgment is reversed and the cause remanded for other reasons, the overruling of an application for continuance need not be considered. 6. —Same—Evidence—Declarations of Defendant. Where, upon trial, of murder, the court admitted in evidence statements made by the defendant at the time he was brought from jail and executed his appearance bond, and there was some doubt as to whether he was then under arrest or had been discharged under a bond, and the court submitted this question to the jury, there was no reversible error, although this was a close question in the instant case.
86 Tex. Crim. 375Hurst v. State (1919)
1.—Murder—Evidence—Irrelevant Testimony. ■ _ Where, upon trial of murder, the evidence developed that deceased and his wife, the latter being defendant’s daughter, moved in the house of defendant with his permission, occupying one room thereof, it was reversible error to show by the testimony of said daughter that she moved into said room because she expected to become a mother soon, etc., this testimony having no connection with the difficulty and its effect evidently influenced the jury adversely to defendant’s cause. Following: Tyson v. State, 14 Texas Crim. App., 390, and other cases. 2. —Same—Evidence—Irrelevant Testimony. Upon trial of murder, and a conviction of said offense and raising the issues of self-defense and manslaughter, it was reversible error to permit the private prosecutor to ask defendant whether he had not been separated from his wife forty times before he ever met the deceased, the witness answering that he had been separated once; the evidence showing that the defendant and his wife were then living separately, and the previous separation of defendant from his wife had no bearing upon the case and this testimony injuriously affected the defendant. 3. —Same—Evidence—Irrelevant Testimony. Upon on trial of murder, it was error to permit the private prosecutor to ask defendant on the witness stand whether he had not whipped his wife theretofore in another county, although the witness answered in the negative. 4. —Same—Evidence—Irrelevant Testimony. Upon trial of murder, it was reversible error to permit State’s counsel on cross-examination of defendant’s son to ask him if he was not present at the time his mother told his father, before the killing, that she was going to stay in the room with deceased and his wife, and that thereupon his father kicked witness’ mother; and this although the witness answered in the negative, as the answer of the witness could not have removed the evil effect of the question. 5. —Same—Evidence—Declaration of Defendant. Upon trial of murder, it was error to permit testimony that defendant had told a third party that defendant’s wife had been telling lies on him around in the neighborhood, as this had no connection with the homicide. 6. —Same—Buie Stated—Illegal Evidence. Whether evidence of an illegal character may have entered into the verdict it will be error if it leads to a conviction, and when without the error the conviction may not have been obtained or has resulted in a higher punishment, as in the instant case.
86 Tex. Crim. 380Potter v. State (1919)
1.—Libel—Indictment—Innuendo—Explanatory Averments—Pleading. Where, upon trial of criminal libel, the indictment failed to allege by innuendo or explanatory averment wherein the alleged libelous matter was a libel, said libelous publication not being sufficient in itself the same was bad on motion to quash, and article 472, Vernon’s C. C. P., know as the common-sense indictment act of 1881 is not sufficient. Following: McKie v. State, 37 Texas Crim. Rep., 544, and other cases. 2.—Same—Jury and Jury Law—Prejudice—Opinion—Voir Dire. Where the alleged libelous matter was a severe attack and criticism of Jews generally, and it appeared that there were four or five members of the jury who belonged to their race and who would have admitted that they were prejudiced against the publisher of said libel, the defendant should have been permitted to question them on their voir dire, and challenge them for cause, as prejudice is not to be confounded with mere opinion.
86 Tex. Crim. 384Hunter v. State (1919)
The opinion states the case.
86 Tex. Crim. 386Lemcke v. State (1919)
The opinion states the case.
86 Tex. Crim. 387Cotton v. State (1919)
The opinion states the case.
86 Tex. Crim. 398Dollar v. State (1919)
1.—Pandering—Sufficiency of the Evidence. Where, upon trial of pandering under article 506a, Penal Code, the evidence was sufficient to sustain the conviction, there was no reversible error. 2.—Same—Husband and Wife—Evidence—Cross-examination. Where, upon trial of pandering, the cross-examination of the husband was with reference to his direct examination and germane thereto, and besides, the court withdrew the same and the bill of exceptions did not point out specifically any injury to the defendant, there was no reversible error. 3.—Same—Argument of Counsel. While the argument of State’s counsel was not as decorous as it should have been, the same in the instant ease presents no reversible error. Following: Borrer v. State, 83 Texas Crim. Rep.. 198. 204 S. W. Rep., 1006. 4.—Same—Evidence—Bill of Exceptions—Character of House. Where, upon trial of pandering, it appeared from the evidence that a certain State’s witness was a prostitute and that defendant induced her to become an inmate of the house she was keeping as a house of prostitution, tnere was no error in asking the witness the question whether the defendant and her husband were in charge of said house, to which she answered in the affirmative. 5.—Same—Evidence—Character of House. Upon trial of pandering, it was permissible that the State prove that, the house kept by defendant and her husband was made the resort of prostitutes and to show by a witness who was a prostitute that she was assigned a room therein by defendant’s husband, and the fact that defendant was not present in the lobby of the hotel at the immediate time was not material. Following: Clark v. State, 76 Texas Crim. Rep., 348, 174 S. W. Rep., 355, and other cases. 6, —game—Evidence—Bill of Exceptions. Upon trial of pandering, there was no error in admitting testimony showing the character of persons who registered at the place kept by the defendant to show its public character; besides, the bill of exceptions was insufficient. 7. —game—Charge of Court—Practice on Appeal. Where upon trial of pandering, the court’s main charge, together with submitted requested charges fairly submitted the issues to the jury, there was no error in refusing other special charges thereon.
86 Tex. Crim. 401Singleton v. State (1919)Reversed and remanded
Appeal from District Court, El Paso County; W. D. Howe, Judge. L. F. Singleton was convicted of manslaughter, and he appeals.
86 Tex. Crim. 406Dixon v. State (1919)
Burglary—Presentment of Indictment—Date of Offense—Buie Stated. While it is imperative that the date on which the offense is alleged to have been committed must be at a date anterior to the finding of the indictment, yet this may appear otherwise than by an allegation in the indictment itself, and where it appears from the record that the date of the offense alleged in the indictment was before the indictment was filed, the same is sufficient, and in the absence of a statement of facts the judgment is affirmed.
86 Tex. Crim. 407King v. State (1919)
The opinion states the case.
86 Tex. Crim. 413Saunders v. State (1919)
1.—Scire Facias—Forfeited Bail Bond—Citation. Where, upon a forfeited bail bond, a final judgment was entered against the principal and all of bis sureties, only one of the sureties being served, the judgment by default is void. 3.—Same—Citation—Service—Judgment. Where the judgment recites that all the sureties in a forfeited bail bond are served with citation, such recital would prevail against the sheriff’s return in a collateral attack, hut this being a direct attack on the judgment, the want of service on the sureties can be shown. Following: Burditt v Howth, 45 Texas, 466, and other cases.
86 Tex. Crim. 414Richards v. State (1919)
1.—Murder—Provoking Difficulty—Self-defense—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the State claimed that defendant armed himself and lay in wait for deceased and defendant claimed threats and attempts against his life, and that he sought the deceased with the view of effecting a peaceful settlement and that deceased assaulted him and he had to kill him, the evidence did not raise the iásue of provoking the difficulty, especially where the State introduced these statements of the defendant, and did not disprove them, Following: Pratt v. State, 59 Texas Crim. Rep., 635, and other cases. 2. —Same—Provoking Difficulty—Lying in Wait. Even if the State’s theory, that the defendant was lying in wait, be .accepted as true, it would appear .that the intent to provoke a difficulty was excluded. Following: Cheatham v. State, 57 Texas Crim. Rep., 442, and other cases. 3. —Same—Self-defense—Going Armed—Buie Stated. The accused would not forfeit the right of self-defense, hy the mere act of arming himself and seeking an interview with the deceased for the purpose of bringing about a peaceful settlement. Following: Shannon v. State, 35 Texas Crim. Rep., 2.
86 Tex. Crim. 418Rogers v. State (1919)
The opinion states the case.
86 Tex. Crim. 420White v. State (1919)
The opinion states the case.
86 Tex. Crim. 422Adams v. State (1919)
1. —Theft of Hog—Sufficiency of the Evidence. Where, upon trial of theft of a hog, the evidence, although conflicting, sustained the conviction, there was no reversible error. 2. —Same—Argument of Counsel—Practice on Appeal. Where, upon appeal from a conviction of the theft of a hog, the argument of State’s Counsel was withdrawn by the court and was not of sufficient importance to require a reversal, the judgment will not be disturbed. Following: Borders, v. State, 72 Texas Crim. Rep., 135, 161 S. W. Rep., 483, and other cases.
86 Tex. Crim. 424Nader v. State (1919)
1.—Murder—Corrupting Witness—Third Parties—Evidence—Limiting Testimony—Impeaching Witness. Where, upon trial of murder, the State on cross-examination of a defendant’s witness, who gave material testimony for him, attempted to show that this witness had attempted to corrupt some of the State’s witnesses it was well within its right provided that such testimony of impeachment was properly limited to the credibility of said witness, but, where it appeared from the record that third parties who were not witnesses in the case were included in said attempted impeachm'ent, the same was reversible error. 2",—Same—Rule Stated—Impeaching Witness—Motive. In all such cases the inquiry, and predicate, if one be necessary, and the impeaching testimony if called for, must be confined to what was done and said by the witness there attacked, and cannot be broadened out to include other persons and relatives whose motives are of no moment in the case. Following: Estep v. State, 9 Texas Crim. App., 367. 3, —Same—Rule Stated—Credibility of Witness—Bias—Motive—Limiting Testimony. It must be conceded that no witness can be impeached, or his credibility attacked by showing bias or motive upon proof of an immaterial statement or aot, except as to reputation or other purely collateral matters, but when the attack upon the witness is made upon a material matter it must necessarily follow that it is more or less an attack upon the party for whom such witness appears and therefore the same must be properly limited. 4, —Same—Interpreter—Partisan—Practice in District Court. The interpreter who is sworn to interpret for the court should not be sworn in if he be a partisan or is cognizant of material facts, as was true in the instant case. 6.—Same—Accomplice—Bill of Exceptions. Where there was nothing in the evidence raising the question of accomplice as applicable to the testimony of a certain witness named in the bill of exceptions, there was no error. 6. —Same—Standpoint of Defendant—Charge of Court—Self-defense. In every case where the issue of self-defense is raised by the evidence a charge of the court should instruct the jury that in determining this issue the matter must be viewed from the standpoint of the defendant, and this though the issue is raised by the testimony of the defendant alone. 7. —Same—Argument of Counsel—Supended Sentence. It was improper for State’s counsel to argue to the jury his personal objection to the law of suspended sentence or any other statute which is invoked, but inasmuch as the case is reversed for other reasons the error will not again occur. 8. —Same—Behearing—Bills of Exception—Practice on Appeal, Where it was urged by the State on motion for rehearing that the original opinion indicated that the case was decided on errors which were not shown by the bills of exception but must have been considered from the statement of fact, etc., but the record showed that this court remained well within the rules laid down by the statutes and the decisions with reference to the rules governing the relation of bills of exception to statement of facts, there was no reversible error, besides, the bills of exception aid raise such issue. 9. —Same—Statements in Original Opinion. Where a complaint was made in the State’s motion for rehearing of certain statements made by the court in its original opinion which were not horn out by the statement of facts, but the record showed that this complaint was not well founded, there was no reversible error.
86 Tex. Crim. 433Scales v. State (1919)
1. —Theft—Receiving Stolen Property—Circumstantial Evidence—Charge of Court. ' Where, upon trial of receiving stolen property, the evidence connecting the defendant with the offense was wholly circumstantial, the court should have submitted a charge on circumstantial evidence. 2. —Same—Accomplice—Corroboration—Charge of Court—Statutes Construed. Where, upon trial of receiving stolen property, the main State’s witness was an accomplice, the court should have instructed the jury on accomplice testimony, and the term accomplice as used in the statute has a meaning broader than that contained in the definition of accomplice in article 79, Penal Code. Following: Phillips v. State, 17 Texas Crim. App., 169, and other cases.
86 Tex. Crim. 434Wright v. State (1919)
The opinion states the case.
86 Tex. Crim. 437Ex Parte Cox (1919)
The opinion states the case.
86 Tex. Crim. 438Surginer v. State (1919)
The opinion states the case.
86 Tex. Crim. 439Lucas v. State (1919)
1. —Rape—Evidence—BiU of Exceptions—Practice on Appeal. Where, upon appeal from a conviction of rape upon a female under the age of consent, it appears from the record that defendant objected to a certain question by the State to the prosecutrix as to what her relations were with the defendant on a certain date, but the bill of exceptions did not show as to what the witness testified in answer to such question, the same cannot be considered on appeal. 2. —Same—Accomplice—Sufficiency of the Evidence—Rule Stated, Where, upon trial of rape upon a female under the age of consent, the prosecutrix testified to facts showing the guilt of the accused, the same was sufficient and she is not an accomplice, and her testimony is not required to be corroborated. Following: Hamilton v. State, 36 Texas Crim. Rep., 372, and other cases. 3.—Same—Rehearing—Practice on Appeal. Where appellant filed a formal motion for rehearing without citation of authority or reasons why same should be granted and there being no error in the original opinion, the motion for rehearing is overruled.
86 Tex. Crim. 441Walker v. State (1919)
1. —Burglary—Misconduct of Jury—Practice on Appeal. Where, upon appeal from a conviction of burglary, appellant complained that one of the jurors alluded to the fact that appellant did not testify, but it was shown from the record that the court heard testimony and overruled the motion, there was no reversible error. 2. —Same—Insanity—Newly Discovered Evidence—Practice in District' Court. Where, upon trial of burglary, the defendant pleaded insanity but was nevertheless convicted and thereupon filed a motion for new trial, attaching the affidavits of a great many people who therein swore that defendant was crazy and was so at the time of the alleged offense, a new trial should have been granted, although this testimony strictly speaking could not be newly discovered, but strict diligence does not apply to the question of insanity, viewed in the light of newly discovered testimony. Following Schuessler v. State, 19 Texas Crim. App., 472, and other cases.
86 Tex. Crim. 444Armstrong v. State (1919)
The charge of the court on accomplice testimony was as follows: “You are instructed that if you believe from the evidence on this trial, beyond a reasonable doubt, that there was an act of intercourse between the defendant and Katherine Armstrong, and if you further believe that said- Katherine Armstrong is the daughter of the defendant; yet, unless you further believe that said act of intercourse was against the will and without the consent of the said Katherine you are…
86 Tex. Crim. 446Harper v. State (1919)
1.—Intoxicating Liquor—Public Place—Sufficiency of the Evidence. Where the indictment charged the defendant with unlawfully having and keeping in his possession certain intoxicating liquors in a public place within prohibition territory, under the Act of the fourth called session of the Thirty-fifth Legislature, and the evidence sustained the conviction under a proper charge of the court, there was no reversible error. a.—Same—Charge of Court—Public Place. Where, upon trial of having and keeping in his possession intoxicating liquor at a public place in prohibition territory, the court instructed the jury that before defendant could be convicted he must have had' said liquor at or around the depot at the railroad station, and that the jury must find that the same was a place to which persons resorted for the purpose of business, and boarding trains for the purpose of transportation, etc., the same was a sufficient definition of a public place, and it is not necessary in order to make one guilty under this statute that he intends to remain iii the place where he is charged to have such intoxicating liquor. 3. —Same—Validity of Act—Constitutional Law. The Act of the Fourth called session of the Thirty-fifth Legislature defining the offense of having and keeping in one’s possession certain intoxicating liquor at a public place in prohibition territory, is valid and constitutional, and does not conflict* with the Webb-Kenyon Act. Following: Ex parte, Fulton, 86. Texas Crim. Rep., 149. 4. —Same—Sufficiency of the Evidence. Where, upon trial of unlawfully having and keeping at a public place in prohibition territory intoxicating liquors, the evidence abundantly showed the guilt of the defendant, and that he was seeking to evade the law and to carry out a boast that the officers could not catch him, there was no reversible error, and the conviction is sustained. 5. —Same—Charge of Court—Practice in District Court. Even if this court should conclude that defendant’s requested charge presented a correct statement of the law involved, yet the record on appeal did not show when the same was presented to the trial court and refused, and in the absence of a showing that the same was presented to the cotirt before the main charge was read to the jury, etc., there is no reversible error.
86 Tex. Crim. 450Kennedy v. State (1919)
The opinion states the case.
86 Tex. Crim. 453Reynolds v. State (1919)
1. —Murder—Circumstantial Evidence—Charge of Court. Where, upon trial of murder, the court’s charge on circumstantial evidence was negative in form as applied to the facts in the instant case and failed to instruct the jury that the facts must show defendant’s guilt and be inconsistent with any other theory than that of guilt, the same was reversible error; the evidence strongly pointing to the conclusion that the death of the deceased was accidental and not brought about by the accused. 2. —Same—Misconduct of Jury—Discussing Fact Outside of Record. Where, upon trial of murder, the jury after their retirement discussed the fact that defendant did not testify, and that she had been previously convicted and alloted twenty years in the penitentiary, etc., these facts not being before the jury, and the fact that defendant did not iestify, was reversible error.
86 Tex. Crim. 455Smith v. State (1919)
The opinion states the case.
86 Tex. Crim. 459Tolbert v. State (1919)
Transporting Intoxicating Liquors—Statutes Construed. The “term” delivery as used in the Act of the Thirty-third Legislature chapter 67, and the Acts of the Thirty-fifth Legislature, fourth called session, chapter 31, relates to the transportation of intoxicating liquors, and '.vas not intended to embrace an act in which the owner and possessor of whisky at his home gave and delivered it to another, and the evidence in the instant case was not sufficient to support a conviction for transporting the liquor contrary to the provision of the Act in question. Following: Clifton v. State, 39 Texas Grim. Rep., 619, and other cases.
86 Tex. Crim. 461Sauzeda v. State (1919)
Murder—Notice of Appeal—Practice on Appeal. It is imperative under the- statutes that a notice of appeal to the Court of Criminal Appeals of Texas be not only given by the appellant at the term at which his trial was had, but the same must also be entered in the minutes and so appear in the record sent to this court. Following: Lenox v. State, 55 Texas Crim. Rep., 259, and other cases, and a statement: “Notice óf appeal is given,” at the conclusion of the order overruling the motion for new trial is not sufficient.
86 Tex. Crim. 462Victor v. State (1920)
The opinion states the case.
86 Tex. Crim. 463Taylor v. State (1920)
The opinion states the case.
86 Tex. Crim. 464Saunders v. State (1920)
The opinion states the case.
86 Tex. Crim. 465Torez v. State (1920)
Burglary—Continuance—Motion for New Trial—Impeachment. Where, upon trial of burglary, the record on. appeal showed that the application for continuance was good on its face; that the diligence was ample, and the testimony material; that the affidavit of the absent witness attached to the motion for new trial fully verified the allegations in the motion, a new trial should have been granted, although there was a discrepancy between this affidavit and the testimony given at the hearing on the motion for new trial as it disclosed important testimony tending to corroborate the defendant in his defense, and was not simply of an impeaching character. Following: Bains v. State, 42 Texas Crim. Rep., 513, and other cases.
86 Tex. Crim. 468Jones v. State (1920)
The opinion states the case.
86 Tex. Crim. 469Hays v. State (1920)
Burgary—Private Residence—Rape—Insufficiency of the Evidence. Where, upon trial of burglary of a private residence, with intent to commit the offense of rape, the evidence showed that prosecutrix was awakened from sleep to find the defendant bending over her at night and holding her wrist, and that when she moved defendant said it was he, when she jerked away from him and he ran out of the room; it having been shown that defendant was requested by the husband of prosecutrix to stay at his house during his absence for her protection, etc., but there was nothing in the evidence to indicate an intent to use any force to accomplish the purpose of sexual intercourse, the conviction could not be sustained. Following; Mitchell v. State, 33 Texas Crim. Rep., 575, and other cases.
86 Tex. Crim. 471Kyle v. State (1920)
1.—Receiving Stolen Property—Evidence—Confessions—Rule Stated. Where property is found in pursuance to a confession it does not come Avithin the rule of warning and written confessions. 2. —Same—Evidence—Declarations of Third Party. Where defendant in his confession stated that a third party received the alleged stolen property, who was thereupon arrested and some of the stolen property was secured, the acts and conduct of said third party which amounted to a confession would not be evidence against the defendant, even though committed in the latter’s presence. Following: Wright v. State, 37 Texas Crim. Rep., 627, and other cases; although it could be shown that said third party turned over said property to the officers of the law; there being nothing to show that defendant instructed said third party with reference to the property but simply claimed that he had pawned it to him. 3. —Same—Evidence—Confession—Arrest. Upon trial of receiving stolen property, it was error to admit in evidence the acts and declarations of the third parties, with reference to a search for the alleged stolen property at the time defendant was under arrest, and to use this statement of the said third parties against the defendant. 4. —Same—Charge of Court—Name of Party From Whom Property was Received Where, upon trial of receiving stolen property, from a certain party named in the indictment after it had been frauduently acquired during a burglary, the court should have confined his charge to said party alleged, and should not have made the guilt of the defendant dependent upon the fact that if he received said property from anybody and knew that it was stolen to find him guilty as charged in the indictment.
86 Tex. Crim. 471Garcia v. State (1920)
86 Tex. Crim. 476Cundiff v. State (1920)
The opinion states the case.
86 Tex. Crim. 476Ex parte Guerrero (1920)
From Bexar County. Original habeas corpus proceeding pending appeal from the County Court of Bexar county from a conviction of relator as a delinquent child, showing that a penalty of one year in the Bexar County training school had been assessed against him; that he had made a motion for new trial in said county or Juvenile court which was overruled, and had thereupon offered.a recognizance or bail bond pending his appeal, which the court refused to accept, whereupon he…
86 Tex. Crim. 484Kraft v. State (1920)
1. —Swindling—Insufficiency of the Evidence—Variance—Check. Where, upon trial of swindling, the evidence did not show that the defendant received the money which the pleading charges him with receiving, and the check introduced in evidence was at variance with the one alleged in the information, the conviction could not be sustained. Following: Rudy v. State, 81 Texas Crim. Rep., 272, and other cases. 2. —Same—Rehearing—Written Instrument—Rule Stated—Pleading. Where the swindle is perpetrated by means of a written instrument as in the instant case, and not by the reception of money, the instrument must be set out in haeo verba, if it can be obtained and if not then some reason must be given, .and where this was not done and there is a variance between the allegation and the proof, the conviction could not be sustained. Following: Lieske v. State, 60 Texas Crim. Rep., 276, and other cases, and this although the motion for rehearing was filed too late.
86 Tex. Crim. 487Plummer v. State (1920)
In addition to what has been said in the opinion of the court, and to show the immediate facts surrounding the case, it may be further stated that defendant’s family consisted of himself, his wife and two children, one a son of about fourteen years and one a daughter of about seven years of age; that according to the defense testimony the husband and wife had lived together amicably for some eighteen years, and until about three weeks before this that at this time defendant…
86 Tex. Crim. 497McCuin v. State (1920)
The alleged judgment was as follows: “The State of Texas v. Jack McCuin, No. 8065, Sept. 24, 1919.
86 Tex. Crim. 498Griffin v. State (1920)
Operating Automobile—Front Lamp—Invalid Statute. The Act of the Thirty-fifth Legislature, chapter 207, section 9, providing, that it shall be unlawful for any person to operate an automobile, motorcycle or bicycle upon the public highways of this State at nighttime, whose front lamp shall project forward a light of such glare and brillancy as to seriously interfere with the sight of, or temporarily blind the vision of the driver of a vehicle approaching from an opposite direction, is invalid and void on account of its indefiniteness, under article 6, Penal Code. Following: Cogdell v. State, 81 Texas Crim. Rep., 66, 193 S. W. Rep., 675, and other case's.
86 Tex. Crim. 502Moore v. State (1920)
1.—Carrying Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, it was an issue from the evidence whether defendant armed himself to seek and probably provoke a difficulty with another, and that his purpose was unlawful, he could not justify himself upon the theory that his route home would bring him in contact with the man he was seeking, and the jury finding against his theory upon a proper charge of the court submitting the issue, there was no reversible error. Following: Ballard v. State, 74 Texas Crim. Rep., 110, and other cases. 2. —Same—Rule Stated—Theory of Defense. It may be asserted as a sound legal proposition that if the conditions which sustained carrying the pistol ceases, that the right to carry it also ceases. 3. —Same—Requested Charge—Practice on Appeal. Where, upon trial of unlawfully carrying a pistol, the court’s main charge substantially and correctly submitted the theories of the defense, there was no reversible error in refusing requested charges under the same subject.
86 Tex. Crim. 505Ware v. State (1920)
1. —Assault to Murder—Aggravated Assault—Charge of Court—Insufficiency of the Evidence. Where, upon trial of assault with intent to murder and a conviction of aggravated assault, the same was against both the charge of the court and the evidence in the case, the judgment must be reversed and the cause remanded. 2. —Same—Presumption, of Law—Intent to Kill—Deadly Weapon. Where, upon trial of assault to murder and a conviction of aggravated assault, the evidence showed that the injured party not only struck the defendant on the head with a deadly weapon before the latter ever drew his pistol, but declared that he intended to kill or seriously injure the defendant which all the facts corroborated, and the court charged on the presumption of the law in such cases, but the jury nevertheless convicted the defendant, the same was reversible error, as the verdict was not responsive to the charge of the court or the facts in the case.
86 Tex. Crim. 508Newton v. State (1920)
The opinion states the case.
86 Tex. Crim. 509Ex Parte Cain (1920)
The opinion states the case.
86 Tex. Crim. 514Davis v. State (1920)
Wife Desertion—Insufficiency of the Evidence. Where, upon trial of the offense of wilful wife desertion, under article 640a, Vernon’s Penal Code, the evidence failed to show that the defendant left his wife in destitute and necessitous circumstances at the time the charge was brought, the conviction cannot be sustained.
86 Tex. Crim. 515Hardy v. State (1920)
The opinion states the case.
86 Tex. Crim. 520Shaw v. State (1920)
The opinion states the case.
86 Tex. Crim. 522Wayland v. State (1920)
1.—Burglary—Recent Possession—Rule Stated. When a burglary is established, and the accused is found in possession of the property recently stolen from the premises, the inference may be drawn that he committed the offense, the breaking being shown by other evidence. Following: Bloch v. State, 81 Texas Crim. Rep., 1, and other cases. 2.—Same—Identity—Stolen Property—Insufficiency of the Evidence. Where, upon trial of burglary, the evidence used by the State at the most showed that the defendant was in possession of property of a similiar description, but which was not identified as the alleged stolen property, and this testimony came from an accomplice, the corroboration was not sufficient and the conviction could not be sustained. 3.—Same—Recent Possession—Identity of Property—Rule Stated. Where - the State relies for a conviction upon the circumstance that the accused is found in possession of property recently stolen from burglarized premises, it is essential that the identity of the property in his possession be established. Following: Johnson v. State, 36 Texas Crim. Rep., 394, and other cases.
86 Tex. Crim. 527Slaughter v. State (1920)
1. —Seduction—Charge of Court—Accomplice—Corroboration. The corroboration under article 789, C. C. P., is intended to go to both the promise of marriagé and the carnal knowledge, and it is the right of the accused to have the jury so instructed. Following Woolley v. State, 50 Texas Crim. Rep., 214, and other cases. ■ 2. —Same—Accomplice—Corroboration—Promise of Marriage—Intercourse, Upon trial of seduction, the conviction cannot be sustained upon the testimony of the alleged female unless the same is corroborated by other evidence tending to connect the defendant with the offense charged, under article 789, C. C. P., and this has reference to both the promise of marriage and the sexual intercourse. Following: Ice v. State, 84 Texas Crim. Rep., 418, 208 S. W. Rep., 344, and other cases. 3. —Same—Other Jurisdictions. In many of the states the rule as to corroboration is extended to other elements of proof, but in all of them the corroboration must be furnished of the evidence of promise of marriage and the fact of sexual intercourse. Following: Allen v. State, 19 Am. & Eng. Ann. Cases, 869, and other cases. 4. —Same—Rule Stated—Carnal Knowledge—Promise of Marriage. To connect the accused with the offense, it is essential that he be connected with both the carnal knowledge and the promise of marriage, and unless these concur there is no offense. Following: Wright v. State, 31 Texas Crim. Rep., 359. 5. —Same—Rule Stated—Charge of Court—Carnal Knowedge—Promise of Marriage. Since a conviction cannot 'be sustained without corroborative evidence tending to connect the accused with a marital contract and carnal knowledge, it is obvious that the jury should be told in the charge of the court that such corroborative facts, though they may be shown by circumstances, are essential as a predicate for conviction, and this is required by statute, especially where demand for more specific instructions is made as in the instant case. Distinguishing: Murphy v. State, 65 Texas Crim. Rep., 55, 143 S. W. Rep., 618. 6. —Same—Conflict of Decision—Corroboration—Rule Stated. The cases holding that the court is not required on appellant’s proper suggestion to instruct the jury that the corroboration must point to the carnal knowledge and the promise of marriage, were decided by a divided court; they conflict with the rule e. ' 'bli -hed by the earlier cases, and are out of harmony with the judicial t.¿unions in other jurisdictions, and are inconsistent with the rule of this court relating to the sufficiency of the evidence in like cases. 7. —Same—Charge of Court—Rehearing. The complaint of the charge of the Court because it omitted to state that the corroboration is not sufficient if it merely shows the commission of the offense, is not well taken, under article 789, C. C. P.
86 Tex. Crim. 534Lawler v. State (1917)
The opinion states the case.
86 Tex. Crim. 535Bride v. State (1920)
The opinion states the case.
86 Tex. Crim. 539Rippey v. State (1920)
1.—Burglary—Evidence—Finding Stolen Property—Rule Stated. The finding of stolen property in the house or on the premisis of one accused of their theft is material and admissible, and the fact that at the time the property was so found, such accused was absent, and had given no permission to make the search, would be immaterial; and the controversy as to the identity of such property can only affect the weight of evidence. 2.—Same—Evidence—Identity of Stolen Property. Where defendant was charged with burglary and the theft of certain sausage found in her house, there was no error in admitting testimony that the same was that of the alleged owner who had made a particular description of same before said identification. 3.—Same—Evidence—Bill of Exceptions. Where the bill of exceptions was defective- in not setting out the facts which showed the alleged error in admitting testimony as to how a certain witness earned his living, etc., the same could not he considered on appeal. 4. —Same—Charge of Court—Alibi—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained a conviction there was no error in refusing a requested charge that defendant was not guilty nor in not submitting a charge on alibi under the evidence in the instant case. Following: Crane v. State, 57 Texas Crim. Rep., 476, and other cases. 5. —Same—Principals—Charge of Court. Where, upon trial of burglary, the evidence raised the issue of principals there was no error in the court’s submitting a charge thereon. 6. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence sustained the conviction under a proper charge of the court there was no reversible error. 7. —Same—Rehearing—Right of Search—Rule Stated—Collateral Issue. Where upon motion for rehearing appellant contended that the State bad no right to introduce evidence that certain property identified as being taken from the alleged burglarized house was found in the house of appellant while she was absent, because the search therefor was without her consent and without authority of law, held that the trial court properly refused to stop the trial and investigate the collateral issue as to how this evidence was obtained. Following: Adams v. New York, 192 U. S., 585, and other cases. Distinguishing: Weeks v. TJ. S., 232 U. S., 383. 8. —Same—Rule Stated—Demonstrative Evidence. There is a vast difference between demonstrative evidence, which consists of those things whose undeniable ownership and property is in the accused, and which are not directly connected with the crime under search, and such evidence when the same consists of the finding of stolen property, etc., or other evidence directly tending to identify the crime, or connect the criminal therewith. 9. —Same—Rule Stated—Search and Seizure—Stolen Property. It is permissible under the law to search for and seize stolen property and is in no sense compelling one to give evidence against himself when the same is a reasonable search or seizure under color of law, and in any event the finding of stolen property - is admissible in evidence if it affects the accused. Following: Jones v. State, 214 S. W. Rep., 322, ond other cases. Distinguishing: Ex parte Wilson, 39 Texas Crim. Rep., 630. 10. —Same—Case Stated—Search and Seizure. Where, upon trial of burglary, the defendant did not even make claim of ownership, or right of possession to the alleged stolen property which was found in her house, there was no error in admitting evidence that the alleged stolen property taken from the burglarized house was seized in her house after a search therefor, although this was without her consent and in her absence. 11. —Same—Sufficiency of the Evidence—Breaking—Entry. Where, upon trial of burglary, the evidence with reference to the breaking and entry of the house by means of certain keys of which defendant possessed herself and the taking of the alleged stolen goods, was sufficient to sustain the conviction, there was no reversible error. 12.—Same—Possession—Recently Stolen Property—Rule Stated. It has been held by this court that the finding of a part of recently stolen property in possession of the accused supports a conviction of taking it all. Following: Rose v. State, 52 Texas Crim. Rep., 155, and other cases. And that such possession of recently stolen property obtained from burglarized premises will support a conviction if not properly explained.
86 Tex. Crim. 549Moore v. State (1920)
The opinion states the case.
86 Tex. Crim. 550Wood v. State (1920)
1. —Murder—Manslaughter—Former Conviction—Misconduct of Jury. Where, upon appeal from a conviction of manslaughter, it appeared from the record that if any reference was made to a former conviction upon the trial of the instant case, it was but an incidental one based upon the information obtained by the jurors in the selection of the jury and the conduct of the trial, and not to be classified as the introduction of new evidence, there was no reversible error. Following: Fox v. State, 53 Texas Crim. Rep., 155. 2. —Same—Bill of Exceptions—Rule Stated—Practice on Appeal. Where the bill of exceptions relating to the alleged misconduct of the jury, with reference to the former conviction, was filed after the trial court terminated, it could not be considered; yet, even if there was timely objection, the action of the trial court in overruling the motion after hearing the facts should not be disturbed.
86 Tex. Crim. 552Curd v. State (1920)
1. —Willfully Refusing to Support his Own Children—Husband and Wife. A divorced wife of one accused is competent against him in any character of case and she may testify to any matters which are not confidential communications, and the mere fact that she was his wife when the matters sought to be elicited occurred would not prima .facie make such matters privileged. Following: White v. State, 40 Texas Crim. Rep., 371, and other cases 2. —Same—Husband and Wife—Statutes Construed—Rule Stated. The law making the wife incompetent to testify against her husband, as to privileged communication, is purely statutory and the husband or wife is entirely competent to testify to all relevant facts in a prosecution for wife desertion, or for failure to support the minor children, under article 640c, Vernon’s Code, and there was no error in permitting her to do so. 3.—Same—Evidence—Attitude of Defendant—Similar Testimony. Upon trial of wilfully rei using to support defendant’s minor children, there was no error in admitting testimony that after defendant had filed divorce proceeding against his wife and the latter had gone to the house of defendant’s father for shelter and support, the latter employed an attorney to represent her in said divorce suit; besides, similar testimony had been admitted without objection. 4. —Same—Evidence—Attitude of Defendant—Same Testimony. Upon trial of defendant for wilfully refusing to support his minor children, thers was no error in admitting testimony that defendant filed a suit for divorce before he had lived in said county six months, to show his attitude for his indifference and neglect of his wife and children. 5. —Same—Evidence—Attitude of Defendant—Harmless Error. Upon trial of defendant for wilfully refusing to support his minor children, where the evidence showed that defendant’s wife after he had filed a suit for divorce against her, went to the father of defendant’s house for shelter and support, there was no error in admitting testimony that said wife had a miscarriage there, caused by the cruel treatment of defendant; besides, similar testimony was admitted without objection and the above testimony could at the most be harmless error. 6. —Same—Evidence—Argument of Counsel—Practice in County Court. While the closing argument for the State was being made, the defendant asked that he be given the privilege of taking the witness stand and explaining a part of the testimony, in regard to which he contended the prosecuting attorney was in error, which the trial court refused, there was no reversible error, no abuse of discretion appearing, 7. —Same—Sufficiency of the Evidence. Where, upon trial of defendant for wilfully refusing to support his minor children, the evidence was sufficient to sustain the conviction, there was no reversible error.
86 Tex. Crim. 556Green v. State (1920)
The opinion states the case.
86 Tex. Crim. 557Ex Parte Stevens (1920)
From Bexar County. Original habeas corpus proceedings asking release from custody pending his motion for new trial; relator being convicted of aggravated assault under an indictment of assault with intent to murder.
86 Tex. Crim. 559Mercardo Jr. v. State (1920)
1. —Wife and Child Desertion—Definition of Offense. To be guilty of the offense defined in chapter 9a, Vernon’s Penal Code, the State must prove that the accused deserted and neglected or refused to provide for his wife, or children under sixteen years of age, that such conduct on his part was wilful and without justification, and that such wife or children were in destitute or necessitous circumstances at the time. 2. —Same—Definitions—Words and Phrases. The term wilful means not only with evil intent and malice but also implies a set purpose and design, and the term justification is defined as a sufficient lawful reason why a party did or did not do the thing charged. 3. —£ ame—Mam age—Obligations and Duties of Husband and Wife. Marriage is a partnership with mutual obligations and duties, and when either party refuses to meet the fair demands of a partnership contract the law will not compel the other party to a further observance of these demands. 4. —Same—Insufficiency of the Evidence. Where, upon trial of the wilful desertion by the defendant of his wife and children, the evidence failed to show that he wilfully and without justification deserted, or neglected, or refused to provide for his wife or children on the date alleged in the indictment, the conviction can not be sustained. Following: Irving v. State, 73 Texas Crim. Rep., 615, 166 S. W. Rep., 1166, and other cases.
86 Tex. Crim. 562Bloxom v. State (1920)
1. —Murder—Evidence—Examining Trial—Buie Stated. Where, upon trial oí murder and a conviction of manslaughter, it appeared from the record on appeal that the matter of the homicide underwent an investigation before an inquest or an examining trial, and the defendant and his codefendant were called before said court of inquiry and made statements without being warned as to the consequence thereof which were reduced to writing, the same could not be reproduced before the trial jury against the defendant, his arrest having grown out of said homicide and said testimony; neither could the said testimony of his codefendant be used against him, and the same was reversible error. Following: Wood v. State, 22 Texas Crim. App., 431. 2. —Same—Verbal Charges—Felony Case. The statute requires a charge in writing in felony cases and does not authorize verbal instructions to the jury, and where the court sought to control certain testimony of an impeaching nature by verbal instruction the same was error. 3. —Same—Declarations of Codefendant. The acts and declarations of parties engaged in the homicide cannot be used except as against the party making them, the transaction being complete, and it was therefore error to admit the testimony with reference to acts and conduct and statements made- by codefendant after the homicide in the absence of the defendant. Following: Kyle v. State, 217 S. W. Rep., 943, recently decided. 4. —Same—Argument of Counsel. Where the judgment was reversed and the cause remanded on other grounds, the argument of district attorney while improper need not be considered. 5. —Same—Case Stated—Charge of Court—Burglary. Where, upon trial of murder and a conviction of manslaughter, the record showed that the defendant and his codefendant went to the house in which deceased was killed for the purpose of investigating the offense of gambling and possibly later to arrest parties guilty thereof, the court should not have submitted a charge on burglary by shooting into said house and injuring its inmates, as burglary was excluded from the transaction.
86 Tex. Crim. 566Johnson v. State (1920)
1. —Murder—Evidence—Declaration of Deceased—Predicate—Res Gestae. Upon trial of murder, where the evidence showed that the next morning after the difficulty an officer h«d a conversation with the deceased, in which he informed him that he had arrested the right man, it was error to admit in evidence the declaration of deceased that he was glad that the officers had got the right man; it being neither a dying declaration nor res gestae, even if a proper predicate had been laid. Following: Craven v. State, 49 Texas Crim. Rep., 81, and other cases. 2. —Same—Dying Declaration—Charge of Court—Rule Stated—Predicate. The testimony of a physician that he informed deceased, prior to making the statement that he was glad that the officers had the right man, that his wound was a serious one and he thought a fatal one, this was not a sufficient predicate for dying declaration; besides, where the predicate is of a doubtful nature the court should instruct the jury under what circumstances they could consider such declaration, and when they could not. 3. —Same—Evidence—Acts and Declarations of Officers—Opinion of Witness. Where, upon trial of murder, the evidence showed that the officers arrested three persons including the defendant shortly after the homicide, and that thereafter they discharged the two others, testimony why they did so and their reasons therefor should not have been admitted, as this was simply the opinion of the officers. 4. —Same—Charge of Court—Self-Defense. Where, upon trial of murder, the evidence showed that deceased was killed while defendant was in the act of chasing a woman trying to recover money which she had taken from him, deceased interfering when the fatal shot was fired either by defendant or someone else, the court in his charge on self-defense, under article 1105, subdivision 8 of the penal code, should have applied the law to the facts of the case and it was reversible error to refuse a requested charge on this phase of the case. 5. —Same—Evidence—Bes Gestae—Exculpatory Statement. Upon trial of murder, there was no error in admitting the declarations of deceased within five minutes of the shooting that another person not the defendant had shot him, as this was a res gestae statement and it devolved upon the State to disprove that statement and to show that the defendant fired the fatal shot. 6. —Same—Jury and Jury Law—Special Venire—Statutes Construed. Where, upon trial of murder, it appeared from the record on appeal, that in drawing the special venire the names of one hundred and forty-four jurors summoned for regular jury service during the term were placed in the box, and one hundred and fiity names of the jurors who had been drawn for special venire service were also placed in the box, and out of the two hundred and ninety-four names of jurors contained in the box, seventy-five names were ordered to be drawn as a special venire to serve in the instant case, the same was reversible error, as the names of the regular jurors should first have been econmized as required by the statute before the special venire list war used, and the question of injury does not enter in this case. Following: Moore v. State, 49 Texas Crim. Rep., 629; Distinguishing: Taylor v. State, recently decided.
86 Tex. Crim. 573Jupe v. State (1920)
1. —Assault to Murder-^Charge of Court—Self-Defense—Simple Assault. Where, upon trial of assault to murder, the evidence raised the issues of assault to murder, aggravated assault, simple assault, and self-defense, and the court’s charge limited defendant’s right of self-defense to the question of danger of death or serious bodily harm to the higher grades of assault and failed to apply self-defense to the question of simple assault, the same was reversible error. 2. —Same—Rule Stated—Self-Defense. The right of self-defense does not depend upon the fact that the life of the accused was in danger or his body in danger of serious bodily injury under all circumstances; this right is broader and applies as well where the case is not one where the life of the accused is in danger or his body of serious harm. 3. —Same—Character of Prosecutor—Pule Stated. Where the character of the prosecutor had not been raised by the defendant, and the State was permitted to introduce evidence as to the good character of the prosecutor for peace and quietude which was afterwards withdrawn by the court, but later sought again to be injected by the State’s attorney, the same was reversible error. Following: Solis v. State, 76 Crim. Rep., 230, and other cases. 4. —Same—Argument of Counsel—Practice on Appeal. While the argument of State’s counsel need not be discussed as it would probably not occur upon another trial, yet the remarks of State’s counsel denouncing defendant as a cowardly cur should not have been permitted, and similar argument has many times been condemned by this court. 5.—Same—Witness—Husband and Wife—Witness Under Rule. The wife of the defendant when a witness for him should have been placed under the rule if defendant desired her to testify in the case; the rule having been invoked.
86 Tex. Crim. 576Swim v. State (1920)
1.—Scire Facias—Forfeited Bond—Practice on Appeal—Briefs. The rule is that a party appealing from a judgment of forfeiture must file briefs in the lower court and in the Court of Criminal Appeals as in civil actions, and where this is not done the appeal must be dismissed. Following: Heinman v. State, 70 Texas Crim. Rep., 480, and other cases; however, where it was made to appear that briefs were so filed the dismissal will be set aside. 2. —Same—Judgment Final—Dismissal. Where, upon appeal from a final judgment on a forfeited appeal bond, it appeared from the record that before final judgment was taken against appellant, there was a dismissal as to some of the sureties and one of the principals, there was no error. Following: Bonding Company v. State, 73 Texas Crim. Rep., 649. 3. —Same—Approval of Bond—Other Counties. Where the appeal bond was approved by the trial judge in a county-other than that in which the conviction of the principal occurred, this did not affect the validity of the bond; it would be otherwise in case of recognizance, under article 904, C. C. P. 4. —Same—Citation—Term of Court—Amount of Bond, Where, upon appeal from a final judgment on a forfeited appeal bond, it was contended that the citation is not sufficient in that it fails to name the term of court at which the bond was forfeited, and the amount of the bond, but an inspection of the record on appeal did not sustain this contention, there was no reversible error.
86 Tex. Crim. 580Russell v. State (1920)
The opinion states the case.
86 Tex. Crim. 582Ex Parte Ray (1920)
1. —Habeas Corpus—Bail—Deadly Weapon—Buie Stated. While the burden of proof is on the State to show that the proof is evident that a capital offense has been committed before bail is denied, and that the instrument used is to be considered in determining the intent of the relator, yet in the instant case the facts were such that the court below correctly denied bail. 2. —Same—Express Malice—Buie Stated. It is true that the express malice necessary to constitute murder of the first degree must be shown, and shown too as the result of a sedate, deliberate mind, and formed design to kill, but it does not follow because the killing may be the result of the prompt and speedy execution of a hasty or immediate resolution, that it may not have been done with express malice. Following: Gaitan v. State, 11 Texas Grim. App., 560.
86 Tex. Crim. 585Clark v. State (1920)
1. —Brawdyhouse—Definition. A brawdyhouse is one kept for prostitution, or where prostitutes are permitted to resort or reside for the purpose of plying their vocation. 2. —Same—Accomplice—Charge of Court. Where, upon trial of keeping a bawdyhouse, a State’s witness testified that she used defendant’s house for the purpose of plying her vocation as a common prostitute with the knowledge of the defendant and shared with her the money received therefor, and attended to the business of keeping the house for defendant during her absence, this made her not only an inmate of the house but an accomplice and it was reversible error not to so instruct the jury. Following: O’Brien v. State, 83 Texas Crim. Rep., 39, 201 S. W. Rep., 179. Distinguishing: Stone v. State, 47 Texas Crim. Rep., 575. 3. —Same—Requested Charge—Bill of Exceptions. Where the bill of exceptions to the refusal to give defendant’s requested charge was in separate paragraphs, each paragraph being in itself specific, and fully complying with the statute, the same was sufficient. Following: Bank v. Richards, 177 S. W. Rep., 531.
86 Tex. Crim. 587Rusell v. State (1920)
86 Tex. Crim. 587Russell v. State (1920)
Tried below before the Hon. James R. Hamilton, judge. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary.
86 Tex. Crim. 591Ex Parte Lee Scott (1920)
Habeas Corpus—Indictment—Detention of Relator. Where relator claimed release from custody, upon the ground that the evidence was insufficient to authorize his detention after an examining trial, and it appeared to this court that pending this appeal the grand jury had found a bill of indictment against him for the offense upon which he was committed, the appeal will be dismissed.
86 Tex. Crim. 592Haddad v. State (1920)
The opinion states the case.
86 Tex. Crim. 594Young v. State (1920)
1. —Threatening Life—Transcript—Practice on Appeal. The accused is not responsible for the record in criminal cases; the clerk is required to make out and forward the transcript to the clerk of this court, and the motion of the State to dismiss is overruled. 2. —Same—Evidence—Argument of Counsel—Insufficiency of the Evidence. Upon trial of threatening to take the life of another, it was error to admit testimony as to language imputed to the defendant criticizing the government of the United States in the recent war with Germany, and to which the court sustained an objection, but afterwards permitted the State’s counsel to allude to the fact of such language; besides, the evidence was not sufficient to sustain the conviction.
86 Tex. Crim. 595Kirkland v. State (1920)
1.—Assault to Murder—Aggravated Assault—Evidence—Cross-examination. Where, upon trial of assault to murder and a conviction of aggravated assault, the State used the testimony of an eye-witness who had been before the grand jury and his testimony therein reduced to writing, and upon cross-examination of defendant, the counsel for the State read from this written statement stating that he did so to refresh his own memory and lay a predicate to impeach the defendant, and refused to pass the writing over to the attorney of the defendant that he might have it before him in re-examining the witness, the same was reversible error, as this was an attempt to get hearsay testimony before the jury. Following: McLin v. State, 48 Texas Crim. Rep., 551, and other cases. 2.—Same—Written Testimony—Refreshing Memory—Practice in District Court. If this written testimony was used for the purpose of refreshing the memory of the State’s counsel, clearly a sense of fairness would require that it be made available to counsel for the accused. Following: Green v. State, 53 Texas Crim. Rep., 493; Besides there was no occasion for laying a predicate to impeach the defendant. Following: Christian v. State, 40 Texas Crim. Rep., 671.
86 Tex. Crim. 598James v. State (1920)
The opinion states the case.
86 Tex. Crim. 606Alexander v. State (1920)
1. —Occupation—Intoxicating Liquor—Evidence—General Reputation. Where, upon trial of pursuing the occupation of selling liquor in violation of the prohibition law, the court admitted testimony that the general reputation of defendant as. a bootlegger and seller of intoxicating liquors was bad in the community where he lived and where the offense was alleged to have been committed, the same was reversible error. Distinguishing: Sasser v. State, 73 Texas Crim. Rep., 539, 166 S. W. Rep., 1160. 2. —Same—Evidence—Moral Turpitude, As explained by the trial court that the offenses inquired about were felonies, and no objection-having been made to the form of the question, there was no error in the State propounding the question to the defendant while on the witness stand as to how many times he had been indicted for selling whisky. 3.—Same—Evidence—Injunction—Presumption of Innocence. Upon trial of pursuing the occupation of selling intoxicating liquors in violation of the prohibition law, it was reversible error to ask defendant and show while on the witness stand if it was not a fact that an injunction petition had been filed against him by the county attorney in the District Court in the county of the prosecution alleging that he was selling intoxicating liquors, etc., as the defendant was presumed to be innocent until his guilt was established by legal evidence.
86 Tex. Crim. 609Russell v. State (1920)
The opinion states the case.
86 Tex. Crim. 611Hughes v. State (1920)
The opinion states the case.
86 Tex. Crim. 614Drozda v. State (1920)
The libelous matter, set up in the information, was published in the Bohemian language and a translation is attempted to be made into the English, together with innuendoes added by the pleader, as follows: , Those people which you call leaders have recognized the G N S (Meaning the Bohemian National Alliance) only after our people began more liberally with their donations.
86 Tex. Crim. 619Bosley v. State (1920)
Seduction—Continuance—Service in Army. Where defendant’s application for a continuance showed that two of his absent witnesses were in the service in France during the late war, and were so situated that their evidence could not be obtained, and which was material, it was reversible error to overrule the same. 2.—Same—Filing Affidavit—Practice on Appeal. Where it appeared in the transcript that the trial judge, after the final disposition of the case and notice of appeal, on his own'accord filed what he termed bills of exceptions including certain affidavits of some of the absent witnesses named in the application for continuance, the same cannot be considered on appeal.
86 Tex. Crim. 620Jones v. State (1920)
Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence, although conflicting, was sufficient to sustain the conviction under a proper charge of the court, there was no reversible error.
86 Tex. Crim. 621Young v. State (1920)
The opinion states the case.
86 Tex. Crim. 624Phillips v. State (1920)
1.—Theft of Chickens—Declarations of Defendant—Arrest. Where, upon trial of theft of chickens, the defendant made a statement to an officer that he had purchased the same and the officer had in no manner given an intimation that he intended to arrest the defendant, although this was his intention but unknown to the defendant, there was no error in admitting in evidence said statement. Following: Hart v. State, 15 Texas Crim. App., 230, and other cases. 2.—Same—Written Confession—Ho Warning. Where the written statement of the defendant before the county attorney with reference to his possession of the alleged stolen property was made under such circumstances that he was in legal custody, and he was not warned that the same might be used against him, the same was inadmissable in evidence. Following: Callaway v. State, 55 Texas Crim. Rep., 262, and other cases.
86 Tex. Crim. 626Williams v. State (1920)
1.—Carrying Pistol—Evidence—Res Gestae. Where, upon trial of unlawfully carrying a pistol, the evidence showed that while an altercation was going on between two negro women, one of whom was defendant’s sister, he was sitting near by in a buggy and exhibited a pistol during this fight, and that about a half an hour or three-quarter thereafter the woman worsted in said fight told her husband out of the hearing of the defendant, yet near the scene of the difficulty, not to go back towards the defendant because he had a pistol, and that they then deflected their course, held, that this declaration was admissible as res géstate, and there was no reversible error; besides, the matter is not of such importance as to require a reversal of the judgment. 2. —Same—Bes Gestae—Rule Stated—Court of Criminal Appeals of Texas. In this State, a statement of the principles or rules upon which res gestae statements become admissible as an exception to the rule excluding hearsay, furnishes only in a qualified manner a guide to the appellate court in passing upon the ruling in a particular case, under our practice of considering the entire record in weighing, analyzing, and thoroughly digesting all of the evidence before applying the law of the case. Following: Lewis v. State, 29 Texas Crim. App., 202, and other cases. 3. —Same—Rule Stated—Res Gestae—Condition of Witness—Discretion of Court. While res gestae statements must spring out of the principal fact, must tend to explain it, be voluntary and made at a time so near as to preclude the idea of deliberate design, yet a certain degree of reliance upon the discretion of the trial judge in ruling upon said statement must be observed, and considering the circumstances in the instant case we are not justified in drawing the conclusion that the mind of the witness who made the statement was not at the time in a condition so as to admit the same, and that the ruling of the trial court that this statement sprung out of the principal fact and was voluntary and spontaneous was not correct. 4. —Same—Bill of Exceptions—Rule Stated. Bill of Exceptions in question and answer form should only be made when the character of the testimony cannot be reproduced otherwise.
86 Tex. Crim. 632Woodard v. State (1920)
The opinion states the case.
86 Tex. Crim. 633Venn v. State (1920)
1. —Violation of Prohibition Law—Service of Copy of Indictment—Practice in District Court. Where the defendant requested a copy of the indictment the same should have been granted as is expressly provided by article 553, Vernon’s Code of Criminal Procedure, and the court should have directed that he be served with a copy of the indictment as request was made in his motion, and the overruling of said motion was reversible error. 2. —Same—Practice in District Court—Written Pleading—Two Day’s Delay. Where defendant was on bail on the day his case was called to trial, his motion for two days’ delay to file written pleading was correctly over, ruled, under article 557, Vernon’s Code Criminal Procedure.
86 Tex. Crim. 636Ex Parte Montgomery (1920)
The opinion states the case.
86 Tex. Crim. 640Williams v. State (1920)
1. —Forgery—Deposit Slip—Indictment. Where, upon trial of forgery, the indictment charged that the defendant forged a duplicate deposit slip from a bank, including appropriate innuendo averments, the same was sufficient to charge the ofíense. Following: Martin v. State, 85 Texas Crim. Rep., 89, 209 S. W. Rep., 668, and other cases. 2. —Same—Insufficiency of the Evidence—Comparison of Handwriting. Where, upon trial of- forging a duplicate deposit slip issued by a bank upon a receipt of a deposit for money, the evidence was insufficient to sustain the conviction, and the evidence being wholly circumstantial resting partly upon comparison of handwriting the conviction cannot be sustained. 3. —Same—Evidence—General Reputation—Impeaching Witness. Where, upon trial of forgery, the evidence as to general reputation for honesty of the defendant was admissible, the State had the right in rebuttal to show that some years back defendant’s business house at one time burned, and that suspicion of arson was aroused against him, and that his reputation in the community where he formerly lived was bad, but such testimony could not be used to prove his guilt of the offense involved in this appeal, but only to discredit him.
86 Tex. Crim. 644Lang v. State (1920)
1. —Aggravated Assault—Sufficiency of the Evidence—Maximum Penalty. Where, upon trial of murder and a conviction of aggravated assault, the evidence sustained the verdict with the maximum penalty under a proper charge of the court, there' was no reversible error. 2. —Same—Charge of Court—Aggravated Assault—Confessions. Where the confessions of the defendant showed that he choked the deceased to death, although he claimed it was for the purpose of freeing himself and with nc intent to kill and no means used that ordinarily and reasonably would kill, the court properly charged upon the issue of aggravated assault and the evidence sustaining the conviction, there was no reversible error.
86 Tex. Crim. 646Rosa v. State (1920)
The opinion states the case.
86 Tex. Crim. 652Washington v. State (1920)
86 Tex. Crim. 652Washington v. State (1920)
= Tried below before the Hon. Ben. H. Powell, judge. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary.
86 Tex. Crim. 653Hart v. State (1920)
1.—Embezzlement—Bills of Exception—Time of Filing. Under the statute bills of exception must be filed within thirty days after the final judgment, which is the sentence, and where this is not done the same cannot be considered on appeal, and where some of the bills of exception presented misconduct of the jury they must be filed before adjournment of the court. 2. —Same—Statement of Facts—Stenographer—Mandamus—Bills of Exception. Where appellant claimed that he repeatedly applied to the official court stenographer for a statement of facts and was informed by him that he would furnish same in ample time, but that he was not so furnished with one, either as to the testimony on trial or upon the motion for new trial for the misconduct of the jury, but he failed to apply for á mandamus in time to compel a transcript of said testimony in order that he might prepare his bills of exception, the same shows a lack of diligence and said bills of exception cannot be considered although the court extended the time of filing after the same had expired. Following: Peddy v. State, 63 Texas Crim. Rep., 483, and other cases. 3. —Same—Sufficiency of the Evidence. • Where, upon trial of embezzlement, the evidence was sufficient to sustain . the conviction, there was no reversible error.
86 Tex. Crim. 656Arocha v. State (1920)
The opinion states the case.
86 Tex. Crim. 657Pickens v. State (1920)
1.—Murder—Exculpatory Evidence—Charge of Court—Declaration by Defendant. Where, upon trial of murder, the State introduced the declaration of defendant that he had killed the deceased who had run his hand in his pocket and told the defendant not to- meet him any more, and that he acted in self-defense, but in addition to said statement other criminating evidence was introduced and was sufficient to establish' the falsity of the exculpatory or mitigating facts accompanying the declaration, and the court instructed cn self-defense, apparent danger, and on threats, and by a specific charge covered the defense theory suggested in the exculpatory statement connected with the confession introduced by the State, there was no error in the court’s failure to instruct the jury that the burden rested upon the State to disprove the said statement explaining the killing. Following: Casey v. State, 54 Texas Crim. Rep., 587, and other cases. 2. —Same—Manslaughter—Charge of Court. Where, upon trial of murder, there were phases of the evidence which might, in the opinion of the jury, have been sufficient to mitigate the offense to manslaughter which came from other witness than defendant, such as assaults, insults, and threats on former occasions, etc., and the defendant requested a charge on manslaughter,-the same should have been submitted and the court’s refusal to do so was reversible error. Following: Lundy v. State, 48 Texas Crim. Rep., 217, and other cases. 3. —Same—Evidence—Clothes of Deceased. Where, upon trial of murder, there was an issue as to the location of the wounds there was no error in introducing in evidence the clothes worn by the deceased, and the facts relating thereto as to whether deceased was shot from ambush or whether he was facing the defendant.