87 Tex. Crim.

Volume 87 — Texas Criminal Reports

190 opinions

87 Tex. Crim. 1Revill v. State (1919)
The opinion states the case.
87 Tex. Crim. 6Pilgrim v. State (1920)
1. —Burglary—Statement of Facts—Approved by Judge. Where the document accompanying the record and called a statement oí facts was not approved or authenticated by the trial judge, the same cannot be considered on appeal. Following: Wright v. State, 37 Texas Crim. Rep., 3, and other cases. 2. —Same—Statement of Facts—Bill of Exceptions—Practice on Appeal. In the absence of a statement of facts the presumption in favor of the correctness of the Court’s ruling will prevail on appeal, unless the bill of exceptions is complete to a degree that renders the harmful error apparent without the statement of facts. Following: Davis v. State, 2 Texas Crim. App„ 162, and other cases. 3. —Same—Alibi—Charge of Court—Bill of Exceptions. Where the bill of exceptions does not show that there was evidence making it incumbent upon the court to give a charge on alibi there was no reversible error. 4. —Same—Principals—Charge of Court. Where there was no substantial vice in the court’s charge on principals there is no reversible error. 5. —Same—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, complaints to the ruling of the court upon the admission or rejection of evidence cannot be considered on appeal. Following: Hobbs v. State, 28 S. W. Rep., 814, and other cases. An exception to this rule obtains where the evidence admitted is flagrantly irrelevant, etc. Following: Hare v. State, 56 Texas Crim. Rep., 6, and other cases. 6. —Same—Evidence—Declarations of Defendant—Arrest. Where the main contention in the bills of exception were so qualified by the judge that their efficacy was destroyed even if the statement of facts were at hand, and did not sustain the contention that defendant was under arrest when he made the statements, etc., there was no reversible error.
87 Tex. Crim. 8Ex Parte Houston (1920)
From Bexar County. Original habeas corpus proceedings asking release from arrest on contempt proceedings for violating a permanent writ of injunction, issued out of the District Court on a civil proceeding. The opinion states the case.
87 Tex. Crim. 12Garrett v. State (1920)
The opinion states the case.
87 Tex. Crim. 12Smith v. State (1920)
The opinion states the case.
87 Tex. Crim. 15Hilliard v. State (1920)
The opinion states the case.
87 Tex. Crim. 19Grant v. State (1920)
1. —Receiving Stolen Property—Rule Stated—Circumstantial Evidence. To establish the offense of receiving stolen property the evidence must show beyond a reasonable doubt that the property was stolen, and that thereafter the accused received said property from the person alleged in the indictment wih fraudulent intent knowing the same to have been stolen. Following: Wilson v. State, 12 Texas Crim. App., 481, and other cases, and where circumstantial evidence was relied upon, a charge on the same should have been submitted as demanded in the instant case. 2. —Same—Witness—Conviction—Sentence. A witness is not disqualified from testifying although a verdict of guilty of felony has been rendered against him for felony until his sentence is entered. Following: Arcia v. State, 26 Texas Crim. Rep., 205, and other cases. 3. —Same—Evidence—Predicate—Harmless Error. Whether a sufficient predicate was laid for the introduction of the statement of a witness to support him is a matter of some doubt, but as said statement was not a controverted one there was no reversible error.
87 Tex. Crim. 21De Hart v. State (1920)
87 Tex. Crim. 21Dehart v. State (1920)
Abduction—Charge of Court—Punishment—Statute Construed. Where, upon trial of abduction, of a girl under fourteen years of age, for the purpose of forcing her into marriage, under article 1059, P. C., the court submitted in his charge the offense under article 1062, P. C., which is a felony, the indictment charging a misdemeanor, the conviction cannot be sustained.
87 Tex. Crim. 22Hahn v. State (1920)
1. —Aggravated Assault—Evidence—Moral Turpitude. Where the defendant complained of the refusal of the trial court to permit proof that assaulted party who was a State’s witness was a common thief, but the record showed that all defendant attempted to show by a certain witness was that while said party worked for him some lumber was stolen, there was no reversible error. 2. —Same—Evidence—Practice on Appeal. Where the qualification of the bill of exceptions showed that the proof was made, which the defendant, complained he was not permitted to make, there was no reversible error. S.—Same—Evidence—Cross-examination. Where one of the counts in the information alleged that defendant was robust in health and strength, the defendant had introduced testimony that he suffered from rheumatism which caused him to limp, the State had the right in rebuttal on cross-examination to show that the witness who knew the facts had not observed him limping.
87 Tex. Crim. 23Busey v. State (1920)
Theft of Fruit—Punishment—Statutes Construed. Where defendant was charged by information with theft in regular form of ten bushels of pears and fined ten dollars, the judgment must be reversed and the cause remanded as the law does not authorize punishment by fine alone for misdemeanor theft; besides the prosecution should have been brought for taking or carrying away fruit from the orchard of another under article 1234, Vernon’s Penal Code.
87 Tex. Crim. 24Moore v. State (1920)
The opinion states the case.
87 Tex. Crim. 25Gebhardt v. State (1920)
1.—Delinquent Child—Punishment—Function of Jury. Where, upon trial of a delinquent child, a jury had been demanded and impaneled, the trial judge was without power or authority to fix the punishment, this was a matter exclusively within the province of the jury. Following: Ex parte Pruitt, 82 Texas Crim. Rep., 394. 2. —Same—Delinquent Child—Insufficiency of the Evidence. Where, upon trial of a delinquent child, the evidence was insufficient to support the conviction, the verdict could not he sustained. 3. —Same—Construction of the Law—Practice on Appeal. Where it was not necessary to the disposition of the case, other questions with reference to the construction of the statute are not discussed.
87 Tex. Crim. 27Young v. State (1920)
Theft of Automobile—Suspended—Sentence—Conversation—Evidence. Where, upon trial of theft of an automobile, it appeared that one of the defendants was already under a two-year suspended sentence, there was no error in permitting the district attorney to ask about a certain conversation had by defendants with the alleged owner shortly after the auto had been stolen, in which they offered to pay him, and one of them stated as his reason that he did not want to go to the penitentiary for an additional term to the suspended sentence, etc., besides, the bill of exceptions was defective.
87 Tex. Crim. 28Marable v. State (1920)
1. —Theft—Sufficiency of the Evidence. Where, upon trial of theft, the evidence was sufficient to support a conviction under a proper charge of the court there was no reversible error. 2. —Same—Recent Possession—Charge of Court—Rule Stated. It is not necessary, to constitute legal possession, that the property in question be in the hands or house or on the premises of the alleged possessor, but if the same is in his care, control and management he is the legal possessor thereof, and where the alleged stolen property was secreted in a crib some two or three miles from appellant’s house and was there pointed out to the purchaser by defendant or his agent, this was sufficient to charge him with possession of said property after the same was stolen, and the court properly charging on said recent possession, there was no reversible error. 3. —Same—Argument of Counsel—Response to Defendant’s Counsel. Where the alleged improper argument of the district attorney was a legitimate reply to defendant’s counsel’s argument, there was no reversible error. 4. —Same—Argument of Counsel. Where the district attorney in his argument said that the hour had struck for these thieves to be convicted to the penitentiary, and the court instructed the jury not to consider same, there was no reversible error. 5.—Same—Impeaching Witness—Supporting Testimony. Where the State’s witness had been severely attacked in an attempt to impeach him and was confused by testimony that he had made different statements out of court to that on the trial, there was no error in admitting in evidence a prior written statement before the county attorney and which was the same in substance as that which he made upon the trial. Following: Mitchell v. State, 36 Texas Crim. Rep., 302, and other cases; however, the court is not to be understood as holding that a witness may be supported generally by proof of prior statement, as there are well defined exceptions. 6.—Same—Identification—Stolen Property. Where, upon trial of theft of property over the value of fifty dollars, the appellant contended on motion for rehearing that there was not sufficient proof of the identification of the alleged stolen property, but the record on appeal bore out this court’s contention that the evidence was sufficient there was no reversible error, and there being no error in other respects the judgment of conviction is affirmed.
87 Tex. Crim. 34Fitzgerald v. State (1920)
The opinion states the case.
87 Tex. Crim. 40Willoughby v. State (1919)
1. —Burglary—Recognizance—Punishment. Where the recognizance failed to state the punishment fixed against the appellant the same is defective. Following: Watson v. State, 62 Texas Crim. Rep., 620, and other cases. 2. —Same—Recognizance.—Appeal—Felony—Statutes Construed. Article 320, Vernon’s C. C. P., binds the appellant only for his appear, anee in the trial court, but article 903 of said code prescribes the form of recognizance which should be given by one who is convicted of a felony and appeals, and such recognizance should state the amount of punishment. Following: Hays v. State, 83 Texas Crim. Rep., 596; 204 S. W. Rep., 330, and other cases. But the appellant was allowed to file in the trial court a proper appeal bond and the case is now here heard on its merits. 3. —Same—Burglarious Entry—Guilty Participation. Where, upon trial of burglary, the indictment charged burglary by breaking and entry in the usual form, and the evidence showed that the fastening on the transom had been broken off and the property had been taken from the burglarized house, said entry, etc., was sufficiently proved. 4. —Same—Sufficiency of the Evidence—Practice on Appeal. Inasmuch as the case is reversed for other reasons the sufficiency of the evidence is not discussed as a whole. 5. —Same—Cross-examination—Evidence. Where the State contended that if any error was committed in the original admission ,of defendant’s statement, that the suit case and grip was his property, the same was rendered harmless because defendant brought out the same facts on cross-examination, the same is untenable. 6. —Same—Confession—Evidence—Fruits of Crime. Where, upon trial of burglary, the evidence showed that, something like a month after the said burglary, two hand grips and a suit case were found in different places under a house which was ocuupied by defendant and his mother who were not at home at the time, and that the grips were taken away by the officers' to police headquarters and defendant later came down to the police station with an officer and as he entered the office said, “That suit case and black grip is my property,” the contention of the State that defendant’s statement was admissible because the stolen property was found is untenable, because it was already found when the statement was made. 7. —Same—Declaration by Defendant—Evidence—Arrest—Confession. Where, upon trial of burglary, the evidence showed that a suit case and grip were found some time after the burglary which contained the alleged stolen property, and when the defendant was shown the same said that they were his property, the same is a confession and must be taken as an inculpatory statement. 8. —Same—Evidence—Confession—Arrest. Where, upon trial of burglary, it was shown that the defendant when he made the statement of the ownership of the alleged stolen property was in custody of an officer, although he was not then formally arrested, his confession was inadmissible unless it was made as the statute directed and it was reversible error to admit the same in evidence.
87 Tex. Crim. 47Wagner v. State (1920)
Aggravated Assault—Verdict—Excessive Punishment—AEtule Stated—Waiver of Jury. The law having prescribed the bounds to which and beyond which the jury may go or not go in fixing the punishment, the verdict of the jury will not be set aside where they have remained in said bounds as a rule, except in rare and extreme cases; but it appearing from the record in this case that the defendant was tried before the court and his punishment asesessed at a fine of three hundred dollars and ninety days in jail, and it did not appear from the record that the defendant had in fact waived a jury; that he was an ignorant negro without counsel, and in view of the hasty manner in which the defendant’s trial was conducted, and in view of the statement made by the prosecuting officer which was not based upon the evidence, the judgment is reversed and the cause remanded.
87 Tex. Crim. 49Dill v. State (1920)
The opinion states the case.
87 Tex. Crim. 55Hart v. State (1920)
The opinion states the case.
87 Tex. Crim. 61Lawerence v. State (1920)Reversed
Appeal from District Court, Montgomery County; D. E. Singleton, judge. George Lawerenee was convicted of incest, and he appeals.
87 Tex. Crim. 61Lawrence v. State (1920)
1. —Incest—Other Acts of Intercourse. Where, upon trial of incest, there was no testimony controverting that of the prosecutrix as to the act of sexual intercourse, testimony as to other acts of sexual intercourse was inadmissible. Following: Bradshaw v. State, 82 Texas Crim. Rep., 151, 198 S. W. Rep., 942. 2. —Same—Accomplice—Requested Charge. Where, upon trial of incest, the evidence showed that prosecutrix lived with her mother and made no complaint or outcry at any time, and the trial judge submitted to the jury the question as to whether her evidence was to be governed by the rule of accomplice testimony, but the defendant requested a more specific charge, the same should have been granted under the facts of the instant case. Following: Wingo v. State, 85 Texas Crim. Rep., 118, 210 S. W. Rep., 547.
87 Tex. Crim. 63Casanova v. State (1920)
1. —Theft of Cattle—Conspiracy—Evidence—Co-conspirator. Upon trial of the theft of a cow, it was error to admit testimony of a conversation between the officers and certain third parties who claimed to have made an agreement, with reference to stealing the cow, with the defendant, which conversation was after the commission of the offense and in the absence of the defendant. 2. —Same—Confessions—Arrest—Predicate. Where, upon trial of theft of cattle, the evidence showed that defendant came to the court-house at the call of a deputy sheriff whose purpose was to arrest him and who afterwards did place him in jail, his declarations to the officers under such circumstances were inadmissable and no proper predicate was laid to admit them as his confessions. 3. —Same—Tracks—Evidence—Comparison—Measurement. Where there was no measurement made of the tracks found and no other peculiarity shown that wmuld indicate that defendant made the tracks at the point where the alleged cow was taken, testimony in regard thereto was inadmissible. Following: Tankersly v. State, 51 Texas Crim. Rep., 170, and other cases.
87 Tex. Crim. 67Adams v. State (1920)
The opinion states the case.
87 Tex. Crim. 71Erwin v. State (1920)
Appeal from the Criminal District Court No. 2, of Dallas. Tried below before the Honorable Robt. B. Seay. Appeal from a conviction of aggravated assault; penalty, a fine of $500..
87 Tex. Crim. 74Gunter v. State (1920)
The opinion states the case.
87 Tex. Crim. 75Lillard v. State (1920)
Burglary—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence showed that the defendant was found in possession of some of the alleged stolen goods; that the property was taken burglariously from the house without the owner’s con. sent, and the admission.of the defendant that he had knowledge of the theft and his effort to suppress the testimony were .sufficient to justify the verdict.
87 Tex. Crim. 77Moore v. State (1920)
The opinion states the case.
87 Tex. Crim. 81Medina v. State (1920)
The opinion states the case.
87 Tex. Crim. 83Nalls v. State (1920)
1. —Murder—Burglary—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, exceeding the minimum punishment, the evidence did not raise the issue of burglary, by firing into a house with intent to injure, etc., a charge on burglary, under article 1307, was reversible error. 2. —Same—Statutes Construed—Burglary—Discharge of Firefarms—Entry. Article 1307, Penal Code does not create a new offense or change the definition of the offense of burglary, but simply extends the enumeration of the manner of entry by the discharge of firearms into a house with intent to injure any person therein, but it is essential under article 1304 P. C., in every case of burglary that the entry be made with the intent to commit, a felony or the crime of theft, and where the evidence did not suggest that the purpose of the defendant was to commit the crime of theft and that the shot was fired in such a manner that it could not have injured those within the house the offense could not have been burglary. Following: Miller v. State, 81 Texas Crim. Rep., 237; modifying: Railey v. State, 58 Texas Crim. Rep., 1.
87 Tex. Crim. 86Pinion v. State (1920)
1. —Motor Vehicle—Public Highway—Information—Names of Persons Injured. Where, upon trial of a violation of an Act of the Thirty-fifth Legislature defining unlawful driving of persons in control or charge of any motor vehicle upon the public highway, etc., the information failed to allege the names of the persons alleged to have been injured, the same was bad on motion to quash. 2. —Same—Rule Stated—Pleading—Names of Persons Injured. Wherever the statute punishes, or seeks to punish for an injury by one person to another, either his person or property, it is necessary to name the party injured or intended to be injured. 3. —Same—Insufficiency of the Evidence. Where the pleading alleged that the defendant was in control of the motor vehicle and was operating it, and the evidence showed that another party was with him but'tlid not show who was controlling or operating it. the conviction could not be sustained.
87 Tex. Crim. 89Holland v. State (1919)
The opinion states the case.
87 Tex. Crim. 92Cozine v. State (1920)
The opinion states the case.
87 Tex. Crim. 95Patterson v. State (1920)
The opinion states the case.
87 Tex. Crim. 107Clark v. State (1920)
The opinion states the case.
87 Tex. Crim. 112Scitern v. State (1920)
Prom the District Court of Hopkins. Tried below before the Honorable William Pierson; Appeal from a conviction of assault with intent to rape; penalty, four years imprisonment in the penitentiary. The opinion states the case.
87 Tex. Crim. 115Crouch v. State (1920)
1.—Robbery—Indictment—Duplicitous Pleading—Firearms. Where, upon trial of robbery, the indictment alleged that Charles I. Crouch in and upon W. C. Carter did make an assault and did then and there by said assault and by violence and by putting the said W. C. Carter in fear of life and bodily injury and by then and there using and exhibiting a firearm, to wit, a pistol, the same was not duplicitous and properly alleged the offense under the statute. 2.—Same—Rule Stated—Pleading—One Offense. It is essential that the indictment should charge either an assault or violence or putting in fear of life or bodily injury, whether it was committed with a firearm or by other means, and charging the same conjunctively is not duplicitous pleading, following Reum v. The State, 49 Texas Crim. Rep., 125, and other cases; besides, the statute does not denounce two offenses but only one offense, connected with which there may be aggravated facts increasing the punishment, following Garcia v. State, 19 Texas Crim. App., 389, and other cases.
87 Tex. Crim. 117Knott v. State (1920)
The opinion states the case.
87 Tex. Crim. 119Hale v. State (1920)
The opinion states the case.
87 Tex. Crim. 120Ex Parte Meckel (1919)
From Crockett County. Original Habeas Corpus proceedings, asking release from arrest under an indictment for the violation of the so-called. Disloyalty Act, Acts Thirty-fifth Legislature, Fourth Called Session, Chapter 8, Page 13. The opinion states the case.
87 Tex. Crim. 127Pulliam v. State (1920)
The opinion states the case.
87 Tex. Crim. 128Ex Parte Young (1920)
Bail—Transcript—Practice on Appeal. Article 950, C. O. P., provides that where a habeas corpus was heard in vacation, as in the instant case, the transcript may be prepared by anyone under the direction of the judge, but must be certified by the judge, and it is not sufficient to be certified by the clerk; and where this was not done, the appeal must be dismissed. Following Ex Parte Malone, 35 Texas Crim. Rep., 297, and other cases. However, the appellant is permitted to withdraw the transcript in order1 that the trial judge may certify to same in accordance with the statutes.
87 Tex. Crim. 129Halbadier v. State (1920)
1. —Adultery—Complaint—Motion to Quash—Credible Person—Accomplice. Where, appellant attacked the complaint by motion to quash, in a trial of adultery, because the same was sworn to and signed by his alleged paramour, contending that as an accomplice she was not a credible person within the meaning of Article 479, Vernon’s C. C. P., held that the same was untenable, and the motion to quash was correctly overruled. Following Jones v. State, 58, Texas Crim. Rep., 313 and other cases. 2. —Same—Question of First Impression—Accomplice—Credible Person—Complaint. The direct question as whether or not an accomplice is such credible person has never before been passed upon by this court and is one of much importance; however, in reviewing the decisions of the Texas courts, both in civil and criminal cases, it is held that in the use of the word “credible person” is merely meant whether he is a competent witness to testify, and does not, like in cases of purjury, involve the question as to what amount of testimony is necessary to sustain a conviction. Following Nixson v. Arm. strong, 38 Texas, 296, and other cases. 3. —Same—Statutes Construed—Procedure—Words and Phrases. Articles 34 and 35, Vernon’s C. C. P., set forth fully and in detail the procedure necessary in the institution of prosecutions, and provide for taking a complaint and filing information, and no mention is there made of the requirement that the maker of the complaint should be a credible person, therefore, we hold that the word “credible” as used in Article 479, Vernon’s C. C. P., should be construed as meaning competent to testify. 4. —Same—Evidence—Declarations of Third Party’s—Hearsay. Where, upon trial of adultery, the State was permitted to introduce in evidence the declaration of third parties to the State’s witness with reference to the illicit relations between prosecutrix and the defendant out of the presence of the defendant, held that the same was hearsay and not- perrmssiblp 5.—Same—Declarations of Defendant—Corroboration. Upon trial of adultery, the statements made by the defendant to other parties and the prosecutrix are admissible in evidence when testified to by parties other than prosecutrix, and may be considered in the light of corroborative evidence. 6.—Same—Sufficiency of the Evidence—Accomplice—Corroboration—Buies Stated. It is only necessary under our practice that the evidence offered to corroborate an accomplice, tends of itself, to connect the accused with the commission of the crime, and is ordinarily a question of fact for the jury, hue this court has never been able to lay down a hard and fast rule as to what constitutes habitual carnal intercourse. '
87 Tex. Crim. 134Knight v. State (1920)
1. —Aggravated Assault—Jury and Jury Law—Bill of Exceptions. Where, upon trial of aggravated assault, the list of regular jurors was exhausted and a deputy sheriff was sent out to summon talesmen without then being sworn, but the bill of exceptions showed that no objections were made at the time, and the question was first raised on.a motion for a new trial, there was no reversible error. Following: Habel v. State, 28 Texas Crim. App., 588, and other cases. 2. —Same—Evidence—Bill of Exceptions—Practice on Appeal. Where, the appellant complained that the trial court refused to permit certain evidence, but the alleged language so offered in evidence was not set out in substance or in words in the bill of exceptions, there was no reversible error, and the complaint that appellant was not permitted to show this in his bill of exceptions should have been obviated by a bystander’s bill. 3. —Same—Evidence—Bill of Exceptions—Reputation. Unless it affirmatively appears that the rejected testimony was of the general reputation of the prosecuting witness, it would not be admissible, and the bill of exceptions being defective, there was no reversible.error. 4. —Same—Venue—Charge of Court. Where, upon trial of aggravated assault, the venue was proven, there was no error in the court’s failure to give a requested charge in which an acquittal was asked on the ground that the venue was not proved. 5. —Same—Serious Injury—Sufficiency of the Evidence. Where, the indictment alleged serious hodily injury as means of aggravation, and the evidence showed that the injured party was struck a blow by the defendant with the metal part of a pitchfork which produced a cut four inches in length, laid the bone bare, and left a print on the skull, making him unconscious, etc., the allegation was sustained, and there was no reversible error. [Rehearing refused, April 24, 1920—Reporter.]
87 Tex. Crim. 137Crisp v. State (1920)
The opinion states the case.
87 Tex. Crim. 142Mann v. State (1920)
The opinion states the case.
87 Tex. Crim. 146Bray v. State (1920)
The opinion states the case.
87 Tex. Crim. 148Henry v. State (1920)
The opinion states the case.
87 Tex. Crim. 152Dodson v. State (1920)
Live Stock Law—Insufficiency of the Evidence—Proof of Local Option. Where, upon trial of a violation of the quarantine established by the Live Stock Sanitary Commission, the record on appeal showed that there was no proof that such quarantine had been established, the conviction cannot be sustained. Following Tyrel v. State, 44 S. W. Rep., 159.
87 Tex. Crim. 153Thomas v. State (1920)
Rape—Suspended Sentence—Practice on Appeal. Where, upon appeal from a conviction of rape, the record showed that the trial court entered judgment upon the verdict suspending sentence, and the verdict transcribed in the judgment failed to show any finding of the jury upon the question of suspended sentence, and did not contain the final sentence, the appeal must be dismissed.
87 Tex. Crim. 154Cummings v. State (1920)
The opinion states the case.
87 Tex. Crim. 158Glanges v. State (1920)
The opinion states the case.
87 Tex. Crim. 160Amaya v. State (1920)
1. —Intoxicating Liquors—Prohibition—Validity of Statute. - The contention that Section 3, Chapter 24, Acts Thirty-fifth Legislature, Fourth Called Session, Page 37, was inoperative at the date of the offense, June 9, 1919, is untenable, following Ex Parte Davis, 86 Tex. Crim. Rep., 168; and other cases. 2. —Same—Explanation—Charge of Court. Where, upon trial of a violation of the prohibition law in unlawfully transporting intoxicating liquor, the defendant explained his possession of the liquor, that he found the same and was taking it to the police station, this theory was submitted by the court’s charge to the jury who found him guilty, there was.no error on that ground. 3. —Same—Jury and Jury Law—Convict. Where, upon trial of unlawful transportation of intoxicating liquor and a conviction of said offense, the record showed on appeal that the foreman of the jury had been convicted theretofore in the United State’s Court of a felony and was unpardoned, the conviction must be set aside and the judgment reversed and the cause remanded. 4. —Same—Rules Stated—Unpardoned Convict—Jury and Jury Law. The construction given our statute has been uniform to the effect that it is the' imperative duty of the trial court or the appellate court to set aside a verdict which was rendered by the jury a member of which was an unpardoned convict, and this, although the conviction of said juror was in another jurisdiction. Following Wright v. State, 52 Texas Crim. Rep., 542, and other cases.
87 Tex. Crim. 163Price v. State (1920)
The opinion states the case.
87 Tex. Crim. 169Brannan v. State (1920)
The opinion states the case.
87 Tex. Crim. 170Hogue v. State (1920)
The opinion states the case.
87 Tex. Crim. 173Blackmon v. State (1920)
Rape—Sufficiency of the Evidence. Where, upon trial of rape, upon a female under the age of consent, the evidence was sufficient to sustain the conviction, there was no reversible error, and unsworn contradictory statements were not sufficient to overcome the testimony of prosecutrix, that defendant had sexual intercourse with her and effected penetration, and the case was one of fact to be settled by the jury.
87 Tex. Crim. 176Parkinson v. State (1920)
1. —Theft—Bailee—Indictment—Foreman of Grand Jury. The signature of the foreman of the grand jury is not essential to the validity of an indictment. Following Hanna v. State, 1 Texas Grim. App., 579, and other cases; and, where, another member of the grand jury had signed said indictment, the objection that the foreman of the grand jury should have done so, is untenable. Following Day v. State, 61 Texas Crim. Rep., 117, and other cases. 2. —Same—Other Offenses—Moral Turpitude—Suspended Sentence. Where, upon trial of theft, defendant testified in his own behalf, there was no reversible error in permitting State’s counsel, on cross-examination, to show that defendant was under indictment in two other felony cases, although there may have been suspended sentence therein, or even if he had been acquitted. 3. —Same—Requested Charges—Practice on Appeal. Where, upon trial of theft of an automobile by bailee, the court in his main charge submitted the defendant’s theory of defense, there was no error in refusing requested charges upon the same subject.
87 Tex. Crim. 178Raymond v. State (1920)
The opinion states the case.
87 Tex. Crim. 180Williams v. State (1920)
The opinion states the case.
87 Tex. Crim. 181Gusters v. State (1920)
1. —Murder—Accomplice—Charge of Court. Where, upon trial of murder the evidence raised the issue of accomplice’s testimony, a failure to charge thereon was reversible error. 2. —Same—Co-defendants—Rules Stated. Where parties are jointly indicted and one of them turns State evidence or testifies for the State, the court should submit a charge presenting the question of accomplice’s testimony, although the witness so jointly indicted may deny participation in the homicide. Following: Thomas v. State, 66 Texas Crim. Rep., 374, and other cases. 3. —Same—Argument of Counsel—Reversible Error. Where, upon trial of murder State’s counsel travelled outside of the record, saying: “Let’s call a halt. There are too many murders committed in this county, etc.” The same was reversible error. 4. —Same—Evidence—Other Transactions. Upon trial of murder it was not permissible to show the manner in which the body of deceased was buried, or that he was a pauper buried at the expense of the county.
87 Tex. Crim. 184Young v. State (1920)
The opinion states the case.
87 Tex. Crim. 186Walker v. State (1920)
The opinion states the case.
87 Tex. Crim. 189Watson v. State (1920)
The opinion states the case.
87 Tex. Crim. 190Elam v. State (1920)
The opinion states the case.
87 Tex. Crim. 193Churchill v. State (1920)
Forgery—Passing Forged Instruments. Where, the indictment alleged forgery in one count and in another passing a forged instrument and the State dismissed the first count and elected to try upon the second count, there was no reversible error, even if the first Count was subject to demurrer.
87 Tex. Crim. 194Griffin v. State (1920)
1. —Theft of a Hog—Possession—Requested Charge—Accustomed Range. Where, upon trial of theft of a hog, the evidence showed that the animal had wandered from his accustomed range, and the defendant contended that it was not in the possession of the alleged owner at the time, and requested a charge that hogs not in the accustomed range would not he in the possession of their owner, the same was correctly refused; as it was shown that the animal was in the care, control and management of the alleged owner, being on its accustomed range up to a comparatively short time before the alleged theft and had only recently wandered away. 2. —Same—Ownership—Rule Stated. Unless possession of some one other than the real owner be shown in a case where the animal has recently wandered away out of its accustomed range, it is proper to allege ownership and possession in such real owner if known. Following Alford v. State, 31 Texas Crim. Rep., 299 and other cases, and if the owner be not known to the grand jury, the ownership may be alleged in an unknown owner. 3. —game—Evidence—Motive—Other Transactions—Bill of Exceptions. Where, upon trial of theft of a hog it was shown that the slaughtered carcasses of four hogs were found hanging in the smokehouse of defendant while the officers attempted to make a search of the premises and defendant personally, and some other parties immediately drew their pistols and began shooting at the officers and members of the searching party, such facts were admissible in evidence; besides the bill of exceptions was defective. Following Mitchell v. State, 52 Texas Crim. Rep., 37. 4.—Same—Evidence—Good Faith—Requested Charge. Where, upon trial of theft of a hog, the defendant claimed the same as his property, the court should have submitted a requested charge on the question of good faith, as the court’s main charge failed to submit this question and was duly excepted to; and this although there was testimony that the defendant had said that these hogs were “strays,” as this was a question of facts for the jury.
87 Tex. Crim. 197Gandy v. State (1920)
1. —Tick Eradication—Information—Validity of Law. Where defendant contended that the Act of the Thirty-fifth Legislature, known as the Tick Eradication Law, was invalid because it prescribed two penalties for the same offense, such contention is untenable, as the offenses mentioned in Sections 15 and 22 in said Act, are not the same. 2. —Same—Local Option—Statutes Construed. Defendant’s contention that said Tick Eradication Law has no force and effect in counties where no local option election under the terms and provisions of Section 7 of said Act has been held, is untenable. Following McGee v. State, 81 Texas Crim. Rep., 210; and other cases. Said law is not a local option law as is contemplated by the terms of Section 23, Article 16, of the Constitution of Texas, but is a State-wide Act; and the provision contained in Section 7 is simply to hasten the operation of said law as to such counties. 3.—Same—Evidence—Disability of Defendant—Statutes Construed. Upon trial of a violation of the Tick Eradication Law, the defendant should have been permitted to show the fact that he was ill at the time when he was required to dip his cattle, and physically unable to take his cattle to the dipping vat, as the Tick Eradication Law is not immune from the application of rules of reasonableness, both in construction and enforcement.
87 Tex. Crim. 200Carter v. State (1920)
Murder—Manslaughter—Provoking Difficulty. Where, upon trial of murder and a conviction of manslaughter, the evidence suggested only the issues of murder and justifiable homicide, and did not raise the question of provoking the difficulty, the court’s charge on the law of provoking the difficulty is reversible error. Following Thomas v. State, 71 Texas Crim. Rep., 387, and other cases.
87 Tex. Crim. 203Ex Parte Stallcups (1920)
1. —City Charter and Ordinance—Service Car—Habeas Corpus. Where, the City of Houston had abolished the stands for parking automobiles and so amended the ordinances, limiting the number of stands, but providing that the auto or vehicle carrying passengers could stop along the streets and take on or discharge passengers without limitation as to territory, and relator was arrested for having his car stationed or parked at one of the stands designated in one of the former ordinances, held that the same was a reasonable regulation and defendant was finable. 2. —Same—Reasonable Regulation—Police Power. What may be reasonable has been the subject of a great deal of litigation, legislation, and judicial construction, but relator not having shown that the abolition of the stand' he subsequently occupied is unreasonable, or that it in any way worked a hardship upon him, the court must assume that the ordinance was reasonable. Following Green v. San Antonio, 178 S. W. Rep., 6, and other cases, and the writ for habeas corpus is dismissed.
87 Tex. Crim. 205Beard v. State (1920)
1. -—Robbery—Sufficiéncy of the Evidence. Where, upon trial of robbery by the use of firearms, the evidence fully supported the conviction, there was no reversible error. 2. —Same—Continuance—Want of Diligence. Where, the application for continuance showed a want of diligence the same was correctly overruled.
87 Tex. Crim. 207Felchack v. State (1920)
1. —Tick Eradication—Variance—Allegation and Proof. Where, the information for a violation of the tick eradication law alleged that an election was held in the county of the prosecution, putting in force said law, but the only proof supporting said allegation of said election was the certified copy of the supplemental proclamation of the governor, such as is provided for by Section 7 of Chapter 60, Act of the Regular Session of the Thirty-fifth Legislature, the same was insufficient. 2. —Same—Judicial Cognizance—Proclamation of Governor. While the courts take judicial cognizance of the proclamations of the Governor, they will not take judicial cognizance of the fact that a local option election has been held, or that such law is in force in any particular territory. Following: Robinson v. State, 69 Texas Crim. Rep., 496, 154 S. W. Rep., 947 and other cases. S.—Same—Statutes Construed—Law in Force—Election—Proof Required. In a prosecution of this kind when had under the provisions of Sections 9 and 10 of the Tick Eradication Law, a certified copy of the proclamation of the Governor would be sufficient to establish the existence of the quarantine; but proof of the holding of the election and putting same into effect should be made as in other cases of violation of Local Option Laws. 4.—Same—Date of Offense—Notice for Dipping. The date of the alleged offense should correspond with that in the written notice served for dipping the cattle.
87 Tex. Crim. 209Thurogood v. State (1920)
The opinion states the case.
87 Tex. Crim. 213Baker v. State (1920)
1.—Robbery—Change of Venue—Practice in District Court. Where, upon appeal from a conviction of robbery, the appellant insisted that the order entered in the trial court discloses an absence of authority to change the venue, and that, therefore, the court’s action was reviewable without bill of exceptions, which challenges the validity of Article 634, Code of Criminal Procedure; held that this contention is untenable, although the reason for the change of venue was given as the crowded condition of the docket, the question being raised for the first time in motion for a new trial. Following Taylor v. State, 81 Texas Crim. Rep., 358, and other cases. '2.—Same—Change of Venue—Rules Stated—Discretion of Court. It is essential to the overturning of the order of the trial judge granting or refusing a change of venue, that it be made to appear on appeal that there has been an abuse of discretion to the prejudice of the appellant, and where the trial court upon his own motion, under Article 626, Code Criminal Procedure, changed the venue and this order was not challenged until after conviction in the motion for a new trial, the same was correctly overruled. 3. —Same—Rehearing—Change of Venue—Order of Court—Irregularities— Waiver. It has heretofore been held that the Constitution, failing to fix the venue in criminal cases and the Statute providing that the venue may be changed by the court, irregularities in the order of the court changing venue are waived by failure to object to it at the time, and no complaint having been made until after conviction in the motion for a new trial, the question was waived and there was no reversible error. 4. —Same—Rule Stated—Objection in Limine. Independent of Article 634, Code Criminal Procedure, forbidding the revision on appeal of 'an order changing the venue in the absence of .a bill of exceptions, in the opinion of the court, no review of such order could be lawfully made unless it was shown that the venue was changed over the objection of the accused, and no error not fundamental can be noticed on appeal unless exception is reserved to it in the court below. Following Nelson v. State, 1 Texas Crim. App., 44, and other cases.
87 Tex. Crim. 213Flournoy v. State (1920)
The opinion states the case.
87 Tex. Crim. 213Baker v. State (1920)
87 Tex. Crim. 219Smith v. State (1920)
The opinion states the case.
87 Tex. Crim. 222Hood v. State (1920)
1. —Wife Desertion—Statutes Construed—Rules Stated. The State must show, in order to support a conviction, not only that there was a willful and unjustifiable desertion and failure to support, but also an affirmative showing of destitution and necessitous circumstances on the part of those who are alleged to be injured parties; and a failure on the part of the wife to use the available credit or support of her husband might be sufficient to rebut apparent destitute and necessitous condition. Following Wallace v. State, 85 Texas Crim. Rep., 91; and other cases. 2. —Same—Insufficiency of Evidence. Where, upon trial of wife desertion the evidence failed to show that the said wife was in necessitous and destitute circumstances when defendant left her, etc., the conviction could not be sustained. 3.—Same—Venue—Pleading and Proof—Complaint. While it is substantially provided by Article 640 D. Code of Criminal Procedure, that the venue of this offense may he laid either in the county where the desertion occurred, or in any county in which the deserted wite or children had lived for six months next preceding the filing of the complaint, yet where the complaint in the instant case made no mention of the length of time that the abandoned wife had lived in the county of the prosecution at the time the complaint was filed, and the facts showed that the actual desertion, if any, took place in another county, etc., the same was insufficient. See opinion for proper form of complaint.
87 Tex. Crim. 226Perry v. State (1920)
Wife Desertion—Complaint—Date of Offense—Limitation. Where, upon trial of wife desertion, the date in the complaint and information as to the commission of the offense and the filing of the pleading showed a variance, and besides the proof showed that the offense was committed four years and over before the complaint was filed, in the County Court, etc., the conviction could not be sustained; besides, the evidence failed to sustain the allegation that the wife was in destitute and necessitous circumstances, etc.
87 Tex. Crim. 226Lord v. State (1920)
Swindling—Check on Bank—Complaint. Where, upon trial of swindling, the complaint failed to allege and set out the alleged check upon the bank in which the accused had no money, etc., and which was the basis of the prosecution, the pleading was insufficient upon motion to quash. Following Wilson v. State, 80 Texas Crim. Rep., 622.
87 Tex. Crim. 228Baldauf v. State (1920)
1.—Intoxicating Liquors—Public Place—Having and Keeping—Validity of Statute. The Act of the Thirty-fifth Legislature, Fourth Called Session, Chapter 31, making it an offense to unlawfully have and keep intoxicating liquors in a public place in a locality in which the sale of such liquor is prohibited by local option, is valid. Ex parte Fulton, 86 Texas Crim. Rep., 149, and other cases. 2.—Same—Sufficiency of the Evidence—Plea of Guilty. Where, defendant pleaded guilty to the offense of unlawfully having and keeping intoxicating liquor in a public place, etc., and was assessed the lowest punishment, the sufficiency of the evidence to sustain the conviction is not in question. Following Terretto v. State, 86 Texas Crim. Rep., 188.
87 Tex. Crim. 228McKey v. State (1920)
Tried below before the Honorable J. A. Ward. Appeal from a conviction of manslaughter; penalty, four years imprisonment in the penitentiary.
87 Tex. Crim. 230Anderson v. State (1920)
The opinion states the case.
87 Tex. Crim. 233Charles v. State (1920)
The opinion states the case.
87 Tex. Crim. 240Coleman v. State (1920)
The opinion states the case.
87 Tex. Crim. 242Anderson v. State (1920)
The opinion states the case.
87 Tex. Crim. 245Reese v. State (1920)
The opinion states the case.
87 Tex. Crim. 248Huey v. State (1920)
The opinion states the case.
87 Tex. Crim. 248Hewey v. State (1920)
87 Tex. Crim. 252Ex Parte Townsley (1920)
Murder—Bail—Burden of Proof—Rules Stated—Commitment. All persons shall he bailable by sufficient sureties unless in capital offenses when the proof is evident, and the burden is upon the State, and where the evidence does not satisfy the mind of the court to the degree that in the due administration of the law a jury would probably inflict the death penalty, bail will be granted, which is done in the instant case, and the fact that the formal commitment is not at hand is not important. Following Newman v. State, 38 Texas Crim. Rep., 164, and other cases.
87 Tex. Crim. 254Batts v. State (1920)
Manslaughter—Evidence—Letters—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, appellant complained of the action of the trial court in refusing to admit in evidence two certain letters which were admittedly written to his wife by a witness for the State, to show the animus of said witness, but the record disclosed no such animus, there was no reversible error. Besides, the conviction is sustained by the testimony of a number of other State’s witnesses, and there is no reversible error.
87 Tex. Crim. 256Cokeley v. State (1920)
The opinion states the case.
87 Tex. Crim. 260Guerrero v. State (1920)
The opinion states the case.
87 Tex. Crim. 261Brown v. State (1920)
The opinion states the case.
87 Tex. Crim. 267Rosebud v. State (1920)
Carrying Pistol—Insufficiency of the Evidence—Rules Stated. It is the unbroken line of authority in this State that a party has a right to carry his pistol to his residence, or place of business under legitimate circumstances, and where, in the instant case, the evidence showed that the defendant got the pistol from his brother to whom he had loaned it and carried it thirty miles to his home, it would not constitute a violation of the law.
87 Tex. Crim. 268Ex Parte Smallwood (1920)
From Gregg County. Original Habeas Corpus proceedings asking release from arrest under a violation of the Tick Eradication Law and attacking its constitutionality. The opinion states the case.
87 Tex. Crim. 269Lewis v. State (1920)
Theft of Hogs—Practice on Appeal. In the absence of a statement of facts and bills of exception the charge of the court cannot be considered, the indictment being in proper form and there being no fundamental error in the court’s charge.
87 Tex. Crim. 270Simmons v. State (1920)
1. —Assault to Murder—Declaration of Defendant—Evidence. "Where. the' ottered testimony with reference to the declarations of defendant while he was sharpening his knife to the effect, that defendant told the witness that if the assaulted party would give him a little time he intended to and would pay the bill, contained neither justification nor mitigation and could not affect his right of self-defense, the same was properly excluded. 2. —Same—Evidence—Bill of Exceptions. Where the record showed on appeal, when the matter came up with reference to certain testimony by a defendant’s witness, the defendant excused said witness without objection by the State, no error is presented. 3. —Same—Evidence—Self-ser ving Declaration. Upon trial of assault with intent to murder, the defendant sought to testify that on the morning of the day of the assault, and before he assaulted ihe injured party he had a conversation with a certain merchant of the town who had refused further credit to him, and that he presumed that this was on account of what the injured party had told said merchant, etc., there was no error in excluding such testimony. 4. -—Same—District Attorney—Examination of Witness. While the question asked by the district attorney, if there were not a lot of people who wanted to mob the defendant for cutting the injured party, etc., was manifestly improper, but it appeared that the trial judge promptly sustained an objection thereto and defendant took no further action upon the matter by requested charge or otherwise, there was no reversible error. 5. —Same—Charge of Court—Requested Charges—Insulting Language. Where the court’s charge on self-defense gave defendant his unlimited right of self-defense and gave no charge on provoking the difficulty, there was' no error in refusing a requested charge, that the assault by the injured party was not justified by reason of the epithet applied to him by the defendant. 6. —Same—Charge of Court—Self-defense—Requested Charge. Where, upon trial of assault to murder, the court charged the jury that defendant would have the right to approach the prosecutor and endeavor to adjust any differences, and that such approach would not deprive him, of any right of self-defense, there was no error in refusing a requested charge that defendant had the right to arm himself and make such approach; besides, sharpening a pocket knife and carrying it up one’s sleeve is not arming one’s self as contemplated by law. 7. —Same—Rehearing-—Evidence—No Part of Same Transaction. Where, the State had shown that in a previous conversation between defendant and the injured party, the latter had threatened to sue the former for debt,, and shortly thereafter defendant was seen to sharpen his knife with which he afterwards cut said party injured, there was no error in not permitting defendant to introduce testimony on cross-examination, that, while he was sharpening his knife, he stated to the witness that if he were given a little more time by the injured party be would pay him; as this was no part of the transaction of sharpening the knife, about which the State’s witness had testified. 8. —Same—Conduct of District Attorney—Practice in District Court. Where, appellant complained in his motion for rehearing that this court should reverse the judgment and remand the cause because of the action of the district attorney in repeating certain questions to which the trial court finally sustained objections, but it appeared from the record that the bill of exceptions did not present reversible error, there was no error in the ruling of the court.
87 Tex. Crim. 277Simpson v. State (1920)
The opinion states the case.
87 Tex. Crim. 280Williams v. State (1920)
1. —Murder—Words Uttered—Charge of Court—Apparent Danger—Threats. Where, upon trial of murder there was evidence that the deceased called to defendant to hold up, reaching his hand behind him, when defendant fired, the court should have instructed the jury with reference to the words uttered by deceased at the time that he spoke to defendant and told him to hold up, in his charge on self-defense, apparent danger, and threats. Following Lundy v. State, 59 Texas Crim. Rep., 136. 2. —Same—Charge of Court—Defendant’s Right to Arm Himself—Threats. Where, upon trial of murder, the evidence raised the issue that the defendant had the right to arm himself in anticipation of an attack from the deceased, and deceased having threatened to kill defendant when opportunity offered, which threat was communicated to the defendant, the court should have submitted this phase of the case. Following Simmons v. State, 55 Texas Crim. Rep., 449, and other cases. 3. -—Same—Apparent Danger—Standpoint of Defendant—Charge of Court. Upon trial of murder, under the facts of the instant case, raising the issue of apparent danger, the court should have submitted affirmatively a charge on self-defense from the standpoint of the defendant and not from the standpoint of the jury. Following Nix v. State, 45 Texas Crim. Rep., 504, and other cases.
87 Tex. Crim. 284Berrian v. State (1920)
The opinion states the case.
87 Tex. Crim. 287Morrow v. State (1920)
1. —Embezzlement—Insufficiency of the Evidence. Where, upon trial of embezzlement, alleging that defendant embezzled a certain check, there was no proof that the check had been converted into money, the allegation that the defendant was guilty of a fraudulent appropriation of the money was not supported by the proof. 2. —Same—Charge of Court—Requested Charges—Fiduciary Relations Absent. Where, upon trial of embezzlement there was evidence as to defendant’s right to retain the alleged funds, and no proof of his fiduciary relations, the court should have submitted requested charges on that issue and his failure to do so is reversible error.
87 Tex. Crim. 288Jolly v. State (1920)
1.—Burglary—Explosives—Insufficiency of the Evidence—Descriptive Allegation. Where, upon trial of burglary by means of explosives, the allegations in the indictment described the means used in committing the offense, it became essential to prove that one of the explosives named was used in order to sustain the conviction, and where the evidence meeting this burden upon the State, was inconclusive, and the State’s evidence fell short, of identifying the defendant as the author of the crime or a participant therein, the conviction could not be sustained. 2.—Same—Verdict—Insufficiency of the Evidence—Buies Stated. The sanctity of the verdict of a jury is such that it must not lightly be annulled in any case, but the law does not contemplate that an accused shall suffer because of the verdict when the evidence, viewed in its strongest light from the standpoint of the State, fails to make his guilt reasonably certain. Following Mitchell v. State, 33 Texas Crim. Rep., 575.
87 Tex. Crim. 293Flowers v. State (1920)
The opinion states the case.
87 Tex. Crim. 296Houser v. State (1920)
, Tried below before the Honorable Geo. E. Hosey. Appeal from a conviction of theft of an automobile- Penalty: two years imprisonment in the penitentiary.
87 Tex. Crim. 299Carter v. State (1920)
The opinion states the case.
87 Tex. Crim. 302Singleton v. State (1920)
1. —Burglary—Private Residence—Recognizance. Where, the recognizance failed to state the offense with which the appellant was charged and of which he was convicted, the same is insufficient. Following Goss v. State, 83 Texas Crim. App., 349; however, where a proper recognizance is thereafter filed, the appeal is reinstated and the cause decided upon its metits. 2. —Same—Evidence—Confession—Fruits of Crime—Threats. Where defendant objected to the introduction of testimony as to his confessions on the ground that they were made under arrest, and secured by threats or persuasion, and while defendant was unwarned, but the record showed that his confessions led to the recovery of the fruits of the crime, the same were admissible in evidence and there was no reversible error.
87 Tex. Crim. 305Baker v. State (1920)
1. —Murder—Manslaughter—Charge of Court—Rules Stated. It is the general rule that where an acquittal of murder results no error can be successfully predicated upon charging on that degree of the offense, unless it is made to appear that injurious results were produced thereby, and where there was nothing in the record bringing the case within this exception, there was no reversible error; besides the issue of murder was in the case. Following White v. State, 44 Texas Crim. Rep., 346, and other cases. 2. —Same—Adequate Cause—Charge of Court. Where, upon trial of murder and a conviction of manslaughter growing out of a sudden quarrel, with reference to the question of defendant subscribing to liberty bonds, deceased calling him a slacker and striking defendant with his open hand, the fact raising the issue of adequate cause, it was a question of facts for the jury which the court properly submitted to them, and the verdict for manslaughter will not be disturbed. 3. —Same—Evidence—Provocation—Self-Denfense—Manslaughter. Where, defendant was not permitted to prove his patriotism during the recent war. having been called a slacker by the deceased, the jury having found him guilty of manslaughter, and the rejected testimony would not. have aided the jury in deciding whether the shots were fired in self-defense, nor was it applicable to the question of manslaughter under the facts of the instant case, there was no reversible error. 4. —Same—Evidence—General Reputation—Suspended Sentence. Prior to the suspended sentence law, the reputation of one accused of crime was a subject upon which the State was not permitted to introduce evidence unless invited by the accused. But under said statute the invitation is extended and reputation is to be proved by competent evidence, whether it is good or bad. Following Fannin v. State, 51 Texas Crim. Rep., 41. and other cases, and specific acts become available when pertinent upon cross-examination. Following Williamson v. State, 74 Texas Crim. Rep., 290, and in the instant case there was no reversible error in permitting the State, on cross-examination, to show that while defendant resided in another county some sixteen years previous to the trial, he had paid two fines for drunkenness. 5. —Same—Self-Defense—Charge of Court. Where, upon trial of murder and a conviction of manslaughter, the court’s charge on self-defense informed the jury that it was not necessary that there should have been actual danger provided defendant acted upon the reasonable appearance of danger from defendant’s standpoint, and also submitted requested charges on this basis, there was no reversible error.
87 Tex. Crim. 310Berdell v. State (1920)
The opinion states the case.
87 Tex. Crim. 315White v. State (1920)
1.—Tick Eradication—Recognizance—Transcript—Custody. It is necessary that the record show either a recognizance, or the affirmative fact that the appellant has been continuously in jail since the overruling of his motion for new trial, in order to give this court jurisdiction, and the mere statement of the clerk that defendant is in the custody of the sheriff is not sufficient. Following Bruce v. State, 40 Texas Crim. Rep., 378, and other cases. 2. —Same—Ex Parte—Affidavit—Jurisdiction—Custody. The question involved being the jurisdiction of this court, the right to consider an ex parte affidavit of the sheriff that appellant is not in his custody is necessary. 3. —Same—Rehearing—Statutes—Construed. Where, appellant contended that, under Article 918, Vernon’s C. C. P., as amended by Chapter 18 of the Act of the regular session of the Thirty-sixth Legislature, this court acquired jurisdiction by the notice of appeal, and that whether or not the appellant was in custody or had given his recognizance became immaterial; held. While this-act gave to the appellant the right to make a bail bond, etc., it does not seem to change the necessity that the record show upon appeal that appellant is either in jail or at large upon bail or recognizance, and the appeal must be dismissed.
87 Tex. Crim. 318Ochoa v. State (1920)
1.—Murder—Accomplice—Evidence—Letters—Interpretation. Where, upon trial of murder, as an accomplice, the State introduced a number of letters written to the State’s witness, who was alleged to have acted as principal, in which appellant advised her to poison the deceased, according to the interpretation of said letters, held that the defendant would not be responsible for her acts unless they reflected his intention and his meaning must be ascertained by the jury from the letters in the light of the surrounding circumstances, and her opinion that the language had a meaning other than its purport could not be used. 2. —Same—Rules Stated—Interpretation of Letters—Opinion of Witness. It is a general rule of law that the opinion of a witness is not available to interpret the language written or spoken by another, and where the facts in the instant case do not come within the exception to this rule, they were inadmissible, and the testimony was simply the conclusion of the witness and constitutes reversible error. Following Dowell v. State, 68 Texas Crim. Rep., 482, and other cases. 3. —Same—Evidence—Letters—IT ame. With reference to the testimony of the witness, touching the identity ■ of the person called “Coy” in the letter of February 2nd, 1919, the trial court was warranted in its admission, for the reason that the witness says that in a previous conversation appellant had arranged to refer to his son as “Coy.” 4. —'Same—Practice on Appeal—Newly Discovered Evidence. Where the judgment is reversed and the cause remanded the assignment touching newly discovered evidence need not be considered.
87 Tex. Crim. 324Strahan v. State (1920)
1. —Murder—Special District Judge—Statutes Construed. Where, upon appeal from a conviction of murder, it appeared from the record that the presiding judge was disqualified, and that the special judge was not in fact a district judge but a practicing attorney selected by the bar to preside specially over that term of the court, and excluded th.e fact that he was selected by the parties, he could not sit as a judge in the instant case, and the question could be raised for the first time on appeal. 2. —Same—Evidence—Suspension of Sentence—General Reputation. Where, upon trial of murder, testimony as to the indebtedness of the defendant to the witness and their altercation about this matter, and defendant’s declaration during a casual conversation that there was no such thing as honor and that any man would swear a lie if it was to his own interest, was inadmissible either under the plea of suspended sentence or an attack upon defendant’s general reputation. 3. —Same—Evidence—Defendant’s Declarations. Upon trial of murder, testimony as to a conversation had between witness and the defendant in which the latter accused the former of stealing his corn, etc., should not have been admitted.
87 Tex. Crim. 328Choate v. State (1920)
The opinion states the case.
87 Tex. Crim. 330Taylor v. State (1920)
Tried below before the Honorable M. C. Jeffrey. Appeal from a conviction of murder; penalty, ten years imprisonment in the penitentiary. The opinion states the case.
87 Tex. Crim. 354Woods v. State (1920)
The salient facts in this case are, that about an hour before the fatal difficulty deceased had been in defendant’s barber shop and was shaved by a female barber, concerning whom the defendant and deceased had a wordy altercation and defendant ordered him out of the barber shop: that about an hour thereafter deceased returned to make an apology to the defendant, claiming that the first trouble was based upon a misunderstanding between them, when defendant again ordered him…
87 Tex. Crim. 360Boubel v. State (1920)
1.—Hunting—Firearms—Enclosed Land—Information. Where, upon trial of hunting with firearms upon the enclosed and posted lands of another, the complaint and information did not allege who was in charge of said land or the want or consent of the owner or agent, etc., the same was insufficient, besides, the testimony was not sufficient to support the conviction. 2.—Same—Statutes Construed—Information—Rehearing—Insufficiency of Evidence. There are two statutes with reference to hunting upon the enclosed lands of another, and the information must charge either one or the other, and if this prosecution was brought within the definition of pastures of two thousand acres or less, the same was fatally defective, as it failed to a negative want of consent of all the parties named in the statutes. Following Holtzgrasft v. State, 23 Texas Crim. App., 404; besides, the allegations in the information were not sustained by the proof.
87 Tex. Crim. 365Barnard v. State (1920)
1.—Murder—Manslaughter—Verdict by Lot. Where, upon an appeal from a conviction of manslaughter, the appellant contended that the verdict was reached by lot, but the record disclosed that the jurors, after agreeing to a verdict of manslaughter, a large majority of the jurors was found to favor five years and two or three a lesser penalty, the trial court was warranted in concluding that the addition and division were not to be binding upon them, and that the verdict was not reached by lot. Following Dawson v. State, 72 Texas Crim. Rep., 78; and other cases. 2.—Same—Order of Evidence—Practice on Appeal. The order of testimony is not fixed by iron-clad rules under our practice, and is confined largely to a discretion of the trial courts and their actions will not be disturbed unless by some unusual variance from the customary procedure some injury appears probable, which is not the fact in the instant case. 3.—Same—Argument of Counsel—Practice on Appeal. Where the district attorney withdrew his statement to the effect that one of the attorneys of the defendant went to the scene of the homicide with certain witnesses and pointed out various places, etc., upon being corrected, there was no reversible error. 4.—Same—Argument of Counsel—Bill of Exceptions. Where, the argument of State’s counsel with reference to the children of the deceased did not call for a reversal of the case in the light of the Qualifications of the bill of exceptions, which is also true of other bills of exceptions, there was no reversible error. 5.—Same—Charge of Court—Murder—Practice on Appeal. Upon trial of murder and a conviction of manslaughter, the mere fact of the submission of the law of murder does not constitute reversible error. 6.—Same—Self-Defense—Charge of Court—Pursuing Assailant. Where, upon trial of murder and a conviction of manslaughter, it was doubtful whether the evidence raised the issue of self-defense, but the court, nevertheless, fully charged thereon and instructed the jury further on the right of one assailed to pursue his assailant, there was no reversible error. 7.—Same—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction under a proper charge of the court, there was no reversible error. 8.—Same—Rehearing—Verdict hy Lot. Where, appellant in his motion for rehearing renewed his contention that the .verdict was reached by lot, it appeared from the record that only one juror, who testified, claimed that either in words or in effect the verdict was arrived at by lot and all the other jurors gave testimony as opposed to this conclusion, there was no reversible error. Following Ulrich v. State, 30 Texas Crim. App., 63, and other cases.
87 Tex. Crim. 370Ex Parte Roach (1920)
From Galveston County. Original Habeas Corpus proceedings asking release from arrest in the Girls’ Training School at Gainesville, Texas. The opinion states the case.
87 Tex. Crim. 372Hoover v. State (1920)
Murder—Deadly Weapon—Charge of Court—Buie Stated—Intent to Kill. In instances under the evidence, tjhe instrument used in producing the homicide was not a deadly weapon, or in which there was an issue upon that point, this court with marked uniformity, has held that upon defendant’s request his theory of an absence of intent to kill should be put before the juryMn a manner clearly informing them as to the law, and a failure to do so in the instant case was reversible error. Following Washington v. State, 53 Texas Crim. Rep., 53, and other cases.
87 Tex. Crim. 375Briscoe v. State (1920)
Apepal from the District Court of Commanche. Tried below before the Honorable J. H. Arnold. Appeal from a conviction of murder. Penalty: fifty years imprisonment in the penitentiary. The opinion states the case.
87 Tex. Crim. 379Pierce v. State (1920)
The opinion states the case.
87 Tex. Crim. 382Ott v. State (1920)
The opinion states the case.
87 Tex. Crim. 387Redwine v. State (1920)
The opinion states the case.
87 Tex. Crim. 392Henry v. State (1920)
1. —Assault to Murder—Accomplice—Charge of Court—Conspiracy. Where, upon trial of assault with intent to murder, the evidence did not raise the issue of accomplice with reference to the testimony of Hettie Glass, it was reversible error for the court to charge on accomplice’s testimony, there being no evidence of conspiracy between said witness and defendant. 2. —Same—Circumstantial Evidence—Charge of Court. Where upon trial of assault to murder, the only direct testimony was such as was not to be taken seriously, and the case was not taken out of the rule of circumstantial evidence thereby, the court should have submitted a charge on circumstantial evidence. Following Kelley v. State, 86 Texas Crim. Rep., 281. 3. —Same—Evidence—Declarations of Third Party. The statement of Hettie Glass, that she advised or suggested to her husband, the injured party, not to leave home that night, etc., was not admissible, as it showed no conspiracy between herself and the defendant. 4. —Same—Argument of Counsel—Practice on Appeal. Where the judgment was reversed and the cause remanded upon other grounds, an exception to the remarks of State’s counsel need not be considered. 5. —Same—Declarations of Third Party—Evidence. The statements of witnesses and their remarks to the defendant after they had carried the injured party to the hospital, to the effect that if he would wait a while they would get gasoline for his car, etc., did not show any intention of flight on part of the defendant and was immaterial from any viewpoint. 6. —Same—Evidencce—Supporting Testimony. Where the testimony of the injured party was contradicted by testimony of the defense, there was no error in admitting corroborative statements of the said witness.
87 Tex. Crim. 397Parish v. State (1920)
1. —Female Employee—Regulating Hours of Labor—Complaint. Where, upon trial of violating the law with reference to limiting the hours of labor of female employees, the complaint was insufficient in charging the offense; a motion in arrest of judgment should have been sustained; besides, it is questionable whether the evidence is sufficient to sustain the conviction. 2. —Same—Employer—Agent—Information—Complaint. In charging this offense, it must be alleged and proved that the employer of the alleged female employee did the forbidden acts named in the statute, and to allege that defendant was foreman, etc., is not sufficient.
87 Tex. Crim. 399Hollingsworth v. State (1920)
The opinion states the case.
87 Tex. Crim. 403Messimer v. State (1920)
The opinion states the case.
87 Tex. Crim. 411Schellenger v. State (1920)
The opinion states the case.
87 Tex. Crim. 412Ex Parte Young (1920)
Tried below before the Honorable B. F. Singleton, District Judge, denying bail to the relator. This case was originally appealed as No. 5783, and appellant was permitted to withdraw the transcript that the trial judge might certify to same in accordance with the statutes, which was done and the case now heard upon its merits.
87 Tex. Crim. 416Hilliard v. State (1920)
1.—Robbery—Firearms—Evidence—Confession—Question of Fact. If, in fact, the money recovered was that of the person alleged to have been robbed, the declaration of the defendant leading to the discovery of the money was admissible, although made while under arrest without warning, although induced by promises, and not reduced to writing. Following Jones v. State, 50 Texas Crim. Rep., 329, and other cases. Since, however, this depended upon the identity of the money found with that which was stolen, it was incumbent upon the State to prove such identity, and this question should have been submitted to the jury. Following Bagley v. State, 3 Texas Crim. App., 166, and other cases. 2—Same—Confession—Identity of Property—Controverted Issue—Charge of Court. Where the single fact which would render the confession or declaration of defendant admissible, was the identity of the property found with that which is alleged to be stolen, and this was controverted, it was the duty of the court upon request by defendant to submit to the jury this question of fact. Following Doss v. State, 28 Texas Crim. App., 506, and other cases. 3.—Same—Evidence—Property Found—Declaration by Defendant. ' Where the pistol found by the sheriff, after defendant’s arrest, was stated by the’ defendant as the one that was used in the robbery, such declaration was inadmissible in evidence as the defendant was not warned, etc. Following Wiseman v. State, 33 Texas Crim. Rep., 383, and other cases. 4.—Same—Misconduct of Jury—Evidence Outside of Record. Where the motion for new trial supported by affidavit made it appeal' that the jury in their retirement were informed that defendant’s co-defendant had been convicted of the same offense, and was discussed by members of the jury before they arrived at the verdict, or reached the conclusion that defendant was guilty, a new trial should have been granted. Following Tutt v. State, 49 Texas Crim. Rep., 202, and other cases.
87 Tex. Crim. 419Bouldin v. State (1920)
The opinion states the case.
87 Tex. Crim. 424Higgins v. State (1920)
1. —Rape—Sufficiency of the Evidence. Where, upon trial of rape, the evidence was sufficient to sustain the convicted, on a proper charge of the court, there was no reversible error on that ground. 2. —Same—Evidence—Other Transactions—Rebuttal. Upon trial of rape, where the defendant had introduced evidence that he was not in physical condition to commit rape on the particular date alleged in the indictment, the State could not show in rebuttal that some two months thereafter the appellant had made a similar assault upon the sister of prosecutrix, it not being shown that the same conditions existed, and the same was reversible error.
87 Tex. Crim. 425Davis v. State (1920)
1.—Theft—Accomplice—Charge of Court. Where, upon trial of theft the State used an accomplice as witness, the court’s failure to charge on accomplice’s testimony was reversible error. 2. —Same—Other Offenses—Charge of Court. Where, upon trial of theft over the value of fifty dollars, the State introduced extraneous matters and offenses to connect defendant with the instant offense, the charge of the court upon this evidence, that if the jury believed that the same tended to prove the theft of other property, etc., that the same could be considered to establish res gestae, etc., the" same was reversible error. 3. —Same—Evidence—Acts of Defendant—Intent. Upon trial of theft over the value of fifty dollars, there was no error in admitting testimony, defendant’s connection with the transaction in showing his purpose to obtain money from the results of the theft and selling the. property, etc. 4.—Same—Jury and Jury Law—Practice on Appeal. Where the judgment was reversed and the cause remanded upon other grounds, the selection and empaneling of the jury need not be discussed. 6.—Same—Statement of Facts—Exoneration of Appellant—Practice on Appeal. Where the statement of facts was not filed within the ninety days as -«^v.lred under the decisions, but it appeared from the statement of the trial judge that this occurred by his own inadvertence and without the fault of the appellant, the statement of facts will be considered. Following Eitelv. State, 78 Texas Crim. Rep., 552, and other cases.
87 Tex. Crim. 428Bocknight v. State (1920)
1. —Murder—Manslaughter—Continuance—Practice on Appeal—Want of Diligence. where the circumstances were such that diligence would have demanded the prompt issuance of process for the witness when his whereabouts, after the continuing for his absence, became known to the defendant, there was no reversible error in overruling same. Following Todd v. State, 57 Texas Crim. Rep., 26, and other cases. 2. —Same—Continuance—Motion for New Trial—Rule Stated. Where the testimony expected from the absent witness was that the defendant had been told by him that the deceased had threatened to run him away from the dance which was merely cumulative. Held, to justify an annullment of the verdict there must be a reasonable probability that with the presence of the absent witness a verdict more favorable to the defendant would have resulted. Following Covey v. State, 23 Texas Crim. App., 388, and other cases; and the motion not being supported by the affidavit of the absent witness, and there being no showing that the trial court abused his discretion, there was no reversible error.
87 Tex. Crim. 432Greer v. State (1920)
The opinion states the case.
87 Tex. Crim. 434Dawson v. State (1920)
Theft—Conspiracy—Co-conspirator. Upon trial of theft over the value of fifty dollars, it was reversible error to admit the statements of a co-conspirator with reference to things and matters connected with the alleged offense and defendant’s connection therewith, in the absence of the defendant and after the consummation of the transaction and after defendant’s arrest.
87 Tex. Crim. 435Lankford v. State (1920)
1. —Incest—Husband and Wife—Conduct of Prosecuting Attorney. Where, upon trial of incest, the defense only introduced one witness, who testified that the condition of prosecutrix might have been brought about by masturbation, and there was no other direct testimony for the State except that of the prosecutrix, it was reversible error to call the wife of the defendant as a State’s witness, although she was not used as such witness, and during the examination of defendant’s witness to ask him on cross-examination if he had not told the wife of the defendant that her daughter was a good girl and had not had frequent penetrations, which defendant’s witness denied, and to permit the district attorney, in his argument, to say that the wife had not been used as a witness. Following Moore v. State, 45 Texas Crim. Rep., -234. 2. —Same—Allusion to Defendant’s Failure to Testify. Where the record on appeal showed that there was no one present when the alleged incest took place, except prosecutrix and her father, the defendant, the argument of State’s counsel that defendant was content to sit still and rely on his plea of not guilty alone and put no witnesses on the stand except the doctor, the same was reversible error. Following Vickers v. State, 69 Texas Crim. Rep., 628, and other cases.
87 Tex. Crim. 439Herberg v. State (1920)
1. —Embezzlement—Books—Evidence—Rule Stated. Where upon trial of embezzlement a State’s witness was permitted to testify that no remittance appeared upon the books of the company, such testimony was inadmissible in the absence of the production of said books, and the verification by him of their correctness, the witness not testifying from personal knowledge. Following Moore v. State, 83 Texas, 318. 2. —Same—Charge of Court—Want of Fraudulent Intent. Where upon trial of embezzlement the evidence raised the issue of want of fraudulent intent on part of the defendant, the court should have submitted a requested charge thereon. 3.—Same—Felony—Misdemeanor—Charge of Court. Where the evidence raised the issue that if there was any fraudulent intent, it only extended to an amount of money under the value of fifty dollars, the court should have submitted the requested charge on said phase of the case. Following Loving v. State, 44 Texas Crim. App., 375, and other cases.
87 Tex. Crim. 442Watts v. State (1920)
The opinion states the case.
87 Tex. Crim. 444Hesley Jr. v. State (1920)
Tried below before the Honorable M. W. Munson. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion states the case.
87 Tex. Crim. 452Dawes v. State (1920)
Trial Judge—Bills of Exception—Practice on Appeal. Where the court judicially knows that the judge who signed all orders, charges, and bills of exception in the record on appeal is not the judge of said District Court, and nothing appears in the record how any special judge became qualified or authorized to act, etc., the judgment must he reversed and the cause remanded.
87 Tex. Crim. 453Ex Parte Albritton (1920)
From Harris County. Original Habeas Corpus proceedings asking release from arrest under contempt procedings for violating orders in a civil suit.
87 Tex. Crim. 454Parham v. State (1920)
1—Theft of Automobile—Attorney and Client—Postponement. Where, upon trial of theft of an automobile the defendant in his motion for continuance or postponement on account of the absence of counsel, showed that the latter was engaged in the trial of cases set at the same time that the defendant’s case was called for trial in another county, and that a postponement of the case for the presence of counsel would not have operated as a continuance, the postponement should have been granted. 2.—Same—Bills of Exception—Transcript—Practice on Appeal. Where it was shown upon motion for rehearing that two of the bills of exception were approved by the judge subsequent to the making out of the transcript, but before the time of filing same had expired, the same should be considered on their merits; and the same showing that defendant and his companion were under arrest and unwarned when they made statements amounting to confessions, the same was reversible error to admit such confessions in evidence. '3.—Same—Other Offenses—Charge of Court—Limiting Testimony. Where upon trial of theft of an automobile testimony with reference to another offense was introduced by the State, and the court failed to limit such testimony to the purpose for which it was introduced, the same was reversible error. '
87 Tex. Crim. 458Alarcan v. State (1920)
Tried below before the Honorable F. L. Hawkins. Appeal from a conviction of theft; penalty, three years imprisonment in the penitentiary.
87 Tex. Crim. 460Ex Parte Ballard (1920)
From Ellis County. Original Habeas Corpus proceedings, asking release from a conviction for failing to make a report of school funds to the Superintendent of Public Instruction; penalty, five hundred dollars and thirty days in county jail. The opinion states the case.
87 Tex. Crim. 460Hellman v. State (1920)
The opinion states the case.
87 Tex. Crim. 465Grissom v. State (1920)
The opinion states the case.
87 Tex. Crim. 470Ex Parte Roselle (1920)
The opinion states the case.
87 Tex. Crim. 473Briggs v. State (1920)
1. —Scire Facias—Forfeited Bail Bond—Attorney and Client—Default. Where, upon appeal of final judgment upon a forfeited bail bond, appellant contended that he employed an attorney who failed to file an answer in the court below, and that the judgment by default was taken against him and his sureties, but failed to show sufficient excuse, for failure to file said answer or that he had meritorious defense, there was no reversible error. 2. —Same—Rule Stated—Accident—Unavoidable Cause—Judgment by Default. • The rule is that in the absence of some showing of fraud, accident, or unavoidable cause, a default judgment of a court of competent jurisdiction will not be set aside. Following Martin v. Clements, 193 S. W. Rep., 437, and other cases, and where there is no abuse of discretion shown, the judgment must be affirmed.' 3. —Same—Rehearing—Attorney and Client. Where the only excuse or reason suggested for the failure to file an answer to a judgment nisi was that an attorney, whom appellant had employed failed to file an answer, and there was no showing that said attorney was in anywise prevented or was unable to file such answer, or was misled, etc., there was no reversible error. Í.—Same—Description of Offense—Bail Bond. Where appellant claimed that inasmuch as the bail bond in question described the offense with which his principal was charged as unlawfully keeping intoxicating liquor in violation of law, a felony, the same was not a sufficient description and the bond and therefore invalid, said contention is untenable.
87 Tex. Crim. 476Ex Parte Leslie (1920)
The opinion states the case.
87 Tex. Crim. 482Hendrix v. State (1920)
The opinion states the case.
87 Tex. Crim. 485Winn v. State (1920)
Tick Eradication Law—Information—Complaint—Invalidity of Law. Where this appeal was dismissed for want of a proper complaint as a basis for the information, but this defect of the transcript has been cured, the cause is re-instated. However, in view of recent decisions, it is deemed unnecessary to discuss the various questions at any length, the law having been held invalid, and the judgment is therefore reversed ad dismissed. Following Ex parte Leslie, 87 Texas Crim. Rep., 476, recently decided.
87 Tex. Crim. 486Shrum v. State (1920)
The opinion states the case.
87 Tex. Crim. 493Narango v. State (1920)
The opinion states the case.
87 Tex. Crim. 497Rabe v. State (1920)
1. —Theft of Cattle—Ownership—Indictment—Verdict. Where, upon trial of theft of cattle; the indictment charged different ownership in three different counts, and all three counts were submitted in the charge of the court and the jury found the defendant guilty,, in a general verdict, and it developed from the evidence that only one of the named owners in one of the counts should have been alleged as owner, as he was at the time in the active care, control and management of the cattle, same was reversible error. 2. —Same—Misconduct .of the Jury—Defendant’s Failure to Testify. Where, upon trial of theft of cattle, the jury, in their retirement alluded to and discussed defendant’s failure to testify, the same was reversible error. Following Boozer v. State, 198 S. W. Rep., 295, and other cases.
87 Tex. Crim. 500Ex Parte Wade (1920)
The opinion states the case.
87 Tex. Crim. 502Thompkins v. State (1920)
The opinion states the case.
87 Tex. Crim. 502Thompkins v. State (1920)Motion overruled
Criminal law <§=31131 (7) — Motion to reinstate appeal a month after adjournment of term is too late. Though the court has jurisdiction over motions to reinstate appeals during the term at ■which its judgment dismissing the appeal was rendered, or, under the statute, for 16 days after the rendition of the judgment if the term expires in the meantime, a motion to reinstate the appeal, made more than a month after the rendition of the judgment dismissing the appeal and a month after the adjournment of the •term, is too late.
87 Tex. Crim. 504Wagley v. State (1920)
The opinion states the case.
87 Tex. Crim. 507English v. State (1920)
The opinion states the case.
87 Tex. Crim. 511Ex Parte v. Matthews (1920)
From Harris County. Original application for-a writ of habeas corpus asking release from arrest for a violation of the Tick Eradication Law.
87 Tex. Crim. 512Mayes v. State (1920)
Tried below before the Honorable F. E. Wilcox. Appeal from a conviction of aggravated assault, penalty of fíne of five hundred dollars and one hundred and twenty days confinement in the county jail. The opinion states the case.
87 Tex. Crim. 519Haley v. State (1920)
1.—Murder—Evidence—Other Offenses—Motive—Rule Stated. Where it is reasonably apparent that successive crimes are but necessary steps or parts in the completion of a formed design, evidence establishing each of said crimes becomes competent and material in proving any other part or the whole of such enterprise, and it was, therefore, legitimate to introduce evidence against the defendant that he had poisoned his wife in order to marry the wife of the deceased, and there was no reversible error; this testimony being properly limited. Following Felton v. State, 60 Texas Crim. Rep., 412, and other cases. Distinguishing Smith v. State, 44 Texas Crim. Rep., 63, and other cases. 2.—Same—Sufficiency of the Evidence-—Defendant’s Motive. Where, upon trial of murder the evidence was sufficient to show that defendant killed the deceased in order to possess himself of the latter’s wife, and there was also evidence-that defendant had poisoned his wife in order to obtain his object, the judgment of conviction giving him a life sentence in the penitentiary was sustained. 3 —Same—Rehearing—Change of Venue—Practice on Appeal—Recognizance. Where appellant in his motion for rehearing insisted that no sufficient recognizance was entered into by him at the time the venue of the case was changed, hut the record showed that no such question was raised, upon the trial, and besides, no exceptions were taken in the court from which the venue was changed to such change of venue, the same cannot be considered. Following Thompson v. State, 35 Texas Crim. Rep., 505. 4. —Same-—Name of District Court—Practice on Appeal. Where it was urged in appellant’s motion for rehearing that the cause should be reversed because the District Court of Kaufman County, in its order changing the venue, designated the court to which the cause was sent, as Criminal District Court, Place No. 2, Dallas County, while the statute named said court “Criminal District Court No. 2, Dallas County,” and that the use of the word “Place” in the order changing the venue would be such misdescription of the court to which the ease was sent as to he fatal. Held: that this contention is untenable; besides, such plea to the jurisdiction should have been made in the court from which the venue was changed. Following Krebs v. State, 8 Texas Crim. App., 1, and other cases. 5. —Same—Evidence—Other Offenses—No Reversible Error. Where appellant in his motion for rehearing again complains of the admission of evidence as to the details of the supposed death of his wife by poisoning, this court after a careful review of these matters adheres to its former ruling.
87 Tex. Crim. 527Wallace v. State (1920)
1. —Forgery—Name of Injured Party—Statement of Facts. In the absence of a statement of facts, the motion to quash on the grounds that the check or draft alleged to have been forged was described as the act of J. Bickerell, whereas the name of J. W. Bicknell is signed to the instrument introduced in evidence, and that there is a variance between the names alleged and proved cannot be considered on appeal. 2. —Same—Motion to Postpone—Affidavit—Bill of Exceptions. Where the alleged motion to postpone or continue the case was not sworn to by defendant or anyone else, the same cannot be considered;besides, this should have been reserved by bill of exceptions. 3. —Same—Evidence—Practice on Appeal—Bill of Exceptions. Where the motion for new trial states that the court erred in admitting testimony, but this is not verified by bill of exception, the same cannot be considered on appeal.
87 Tex. Crim. 528Smiley v. State (1920)
1. —Assault with Intent to Rob—Alibi—Circumstantial Evidence—Charge of Court—Intent—Identity. Where, upon trial of assault to rob,- the matter of identity and specific intent to rob is left by the evidence in a condition to render it necessary "that the jury determine by inference from facts rather than.from direct testimony that defendant is guilty, his request that the jury be instructed upon the iaw of circumstantial evidence should have been granted, he hav.ing pleaded an alibi. 2. —Sams—Aggravated Assault—Exhibition of Wounds. Where the indictment alleged an assault to rob it .necessarily included a charge on aggravated assault, and it was, therefore, no reversible error to introduce in evidence the extent of the injury received by the exhibition ot' the wounds.
87 Tex. Crim. 530Mitchell v. State (1920)
The opinion states the case.
87 Tex. Crim. 537Garza v. State (1920)
Carrying Pistol—Allegation—Proof—Variance—Idem Sonans. Where, upon trial of unlawfully carrying a pistol, the complaint and information charged defendant with carrying a “pistle,” and testimony showed that he carried a “pistol,” objection that there was a variance between the allegation and the proof was correctly overruled, as the words were idem sonans.
87 Tex. Crim. 538Wilson v. State (1920)
Appeal from the District Court of Edwards, Tried below before the Honorable James Cornell. Appeal from a conviction of a theft of sheep, Penalty, two years imprisonment in the penitentiary. The opinion states the case.
87 Tex. Crim. 548Lovett v. State (1920)
The opinion states the case.
87 Tex. Crim. 551Baugus v. State (1920)
The opinion states the case.
87 Tex. Crim. 556Ex Parte Jowell (1920)
The opinion states the case.
87 Tex. Crim. 559Berry v. State (1920)
1. —Theft of. Automobile—Sufficiency of the Evidence—Possession of Recently Stolen Property. Where, upon trial of theft of an automobile over the value of fifty dollars, the conviction depended chiefly upon the possession of alleged stolen property recently after the theft, the conviction was sustained. Following Hill v. State, 41 Texas, 256, and other cases. 2. —Same—Evidence—Declarations of Owner of Car—Identification. Where the alleged stolen car was identified by the alleged owner of a certain steering wheel on said car, there was no error in admitting said testimony that within the owner’s knowledge and experience the parts of a Ford car were easily detached and positively identifying said steering wheel. Distinguishing Schnaubert v. State, 28 Texas Crim. App., 222. 3. —Same—Evidence—Number of Engine on Car. There was no error in admitting the owner of the alleged stolen car to testify that the number of the engine of the car found in possession of defendant was about a million above the number on engines then put out by Mr. Ford; the case being one of circumstantial evidence. 4. —-Same—Evidence—Serial Numbers on Cars—Book Entries—Other Evidence. Upon trial of theft of an automobile there was no error in admitting testimony that the numbers appearing on Ford engines run serially, and all engines of said make were numbered consecutively, and to identify a book in which appeared the number of Ford engines manufactured during the five or six years preceeding; and that such book entries were reliable. Distinguishing Aldenhoven v. State, 42 Texas Crim. Rep.. 6, and other cases; besides, such testimony was given by other witnesses from their own knowledge. 5,'—Same—Remarks by Court—Practice on Appeal. Where the remarks of the court complained of had no bearing on the weight of the evidence referred to, but were addressed solely to the admissibility of the book in question and no objection was made thereto at the time, there was no reversible error. 6. —Same—Evidence—Cross-examination—Interest of Witness. Upon trial of theft of an automobile, in cross-examination of the witness who worked for defendant and had very strongly testified to "an alibi, there was no error in asking him whether or not defendant had somebody to come to Waco and steal that car for him, to which the witness answered he didn’t know. 7. —Same—Evidence—Bill of Exceptions. Where the objection to the question as to whether witness did not know that the defendant had raised the number of the alleged car to something nearly a million, but the bill of exceptions was defective, there was no reversible error; besides, this fact was practically undisputed. 8.—Same-—Argument of Counsel—Practice on Appeal. In the absence of a requested charge not to consider the remarks of the County Attorney, and the bill of exceptions not showing that counsel alluded to defendant’s failure to testify, there was no reversible error. 9.—Same—Newly Discovered Evidence—Practice rn Appeal. Where the alleged newly discovered evidence could have been obtained on the trial, and besides, the same was immaterial or insufficient to produce a different result, there was no error in overruling a motion for new trial on that ground. 10.—Same—Rehearing—Recent Possession. Where upon trial of theft of an automobile, defendant was found in possession of the parts of recently stolen property, and when his possession of the same was called in question he gave a false explanation thereof, the conviction is sustained. Distinguishing Wafford v. State, 44 Texas, 439. 11.—Same—Description of Property Stolen. Where it was strenuously argued in motion for rehearing that appellant’s explanation of his acquisition of the alleged car was not shown to be false, it was immaterial whether the body of said car belonged to the party injured, and the State proved the falsity of the claim of appellant as to the possession of the entire car, when the State did prove the falsity of defendant’s explanation as to the steering wheel. 12.—Same—Acts of Defendant—Subsequent Possession. Where appellant insisted also in his motion for rehearing that it was not shown that his connection with the alleged stolen car was not subsequent to its loss by theft, but the record showed that appellant did not claim that the alleged steering wheel was on the car when he got in possession of it, and there was nothing in the record to suggest any acquisition of him of the steering wheel, subsequent to such theft, there was no reversible error. 13.-—Same—Book Entries—Evidence—Serial Numbers—Ford Car. Where the only object of using the so-called “Ford Owner Book” was to show that the serial numbers on Ford Cars in 1919, and at the time of this theft, did not run anything like as high as the engine number upon the alleged stolen car, and besides the witnesses further testified that within their own knowledge and experience the book was reliable and its information correct, there was no reversible error. 14.—Same—Argument of Counsel—Practice on Appeal. In the absence of a requested charge to withdraw the remarks of the county attorney, that the defendant made no explanation as to how he came in possession of the car and where he got the alleged steering wheel, there was no reversible error.
87 Tex. Crim. 569Moore v. State (1920)
The opinion states the case.
87 Tex. Crim. 576Hollman v. State (1920)
The opinion states the case.
87 Tex. Crim. 585Barber v. State (1920)
The opinion states the case.
87 Tex. Crim. 588Steele v. State (1920)
Tried below before the Honorable H. F. O’Neal. Appeal from a conviction of mixing poison in water to injure and kill another; penalty, four years imprisonment in the penitentiary.
87 Tex. Crim. 597Klepper v. State (1920)
1. —Seduction—Requested Charge—Corroboration. Where upon trial oí seduction there was sufficient corroboration of prosecutrix, the court correctly refused a requested charge to return a verdict of not guilty. 2. —Same—Requested Charge—Weight of Evidence. A requested charge that the fact of continuous association between the accused and the prosecutrix, is not sufficient evidence to corroborate a promise of marriage was a charge on the weight of the evidence, and was correctly refused. 3. —Same—Requested Charge—Declarations of Prosecutrix—Subsequent Declaration—Seduction. A charge requested by defendant, that no acts, statement or declaration of the prosecuting witness subsequent to the alleged seduction could be considered by them as corroborating her testimony, was correctly refused in the instant case. Distinguishing Barnard v. State, 76 S. W. Rep., 475. 4. —Same—Requested Charge—Chastity of Prosecutrix. Where nothing appeared in the evidence to suggest any reflection upon the chastity of the prosecutrix or that she consented to the carnal act from anything other than her affections and her reliance upon defendant’s promise to marry her, the court correctly refused a requested charge that if the' intercourse resulted from lust, etc., to acquit the defendant. Distinguishing Muhlhause, 56 Texas Crim. Rep., 288. 5. —Same—Requested Charges—Charge of Court. There was no error in the refusal of the court to give requested charges which were either contained in the main charge or did not correctly represent legal theories. 6. —Same—Charge of Court—Bill of Exceptions—Invited Error. Where there was no error against the defendant in that portion of the court’s charge, to which the defendant objected, and, if erroneous, was upon the invitation of the defendant, there was no error. 7. —Same—Charge of Court—Fixed Time For Marriage. Upon trial of seduction there was no error in the court’s charge that it would be immaterial that no definite time was fixed or agreed upon for the marriage of the parties. 8. —Same—Accomplice—Charge of Court—Corroboration. • Where upon trial of seduction, the court correctly charged on accomplice’s testimony and a corroboration of the testimony of prosecutrix, there was no reversible error. Following Wright v. State, 31 Texas Crim. Rep., 354. 9. —Same—Argument of Counsel—Allusion .to Defendant’s Failure to Testify. Where the argument of State’s counsel was not an allusion to appellant’s failure to testify, there was no reversible error. 10. —Same—Sufficiency of the Evidence—Corroboration. Where upon trial of seduction the testimony of the prosecutrix was sufficiently corroborated, and the evidence otherwise sufficient to sustain the conviction, there was no reversible error on that ground. Following Nash v. State, 61 Texas Crim. Rep., 269, and other' cases. 11. —Same—Rehearing—Argument of Counsel—Birth of Child. The birth of a child, in trials for seduction, is not corroborative of any fact except that the prosecutrix has had carnal knowledge of someone, and it was therefore improper that the county attorney, in his argument to the jury, to state that the prosecutrix was corroborated by the birth of said child. Following Stapp v. State, 144 S. W. Rep., 941, and other cases, and the judgment is therefore reversed and the cause remanded.
87 Tex. Crim. 604Haag v. State (1920)
1. —Malicious Mischief—Injuring Automobile—Temporary Insanity—Excessive Use of Liquor. Upon trial of malicious mischief in injuring an automobile, the defendant, in the instant case, should have been permitted to introduce testimony as to the quantity of intoxicating liquor he had been drinking and that he was in a state of temporary insanity at the time, in mitigation of punishment, under Article 41, C. P.; and it was also reversible error to refuse the requested charge on this phase of the case, as the act of the defendant to become criminal must have been wilfully and maliciously done. 2. —Same—Mental Condition of Defendant—Requested Charge. Where upon trial of malicious mischief the evidence showed that shortly prior thereto the defendant had received a blow upon his head which had rendered him unconscious or so deranged his mind that it was not capable of forming the evil intent necessary in this offense, it was reversible error to refuse the requested charge on said phase of the case.
87 Tex. Crim. 606Sapp v. State (1919)
1. —Murder—Change of Venue—Practice on Appeal. Where the judge in the county of the prosecution changed the venue of a murder case on his own motion to a county of another district, with the consent of defendant, on account that a trial alike fair to the State and the defendant could not be had in the county where the indictment was found, and defendant did not reserve a bill of exceptions as authorized under Article 634, C. C. P., at the time the order of change of venue was made, but made a plea to the jurisdiction in the county to which the venue was changed, there was no error in overruling said plea and motion. 2. —Same—Continuance—Practice on Appeal. A motion for continuance was correctly refused on the ground that defendant’s application for bail was pending in the Court of Criminal Appeals, or on account of the absence of his counsel, other able counsel repre- ' senting him. 3. —Same—Severance—Continuance—Practice on Appeal. The trial court did not err in overruling the - application for severance asking that the codefendant be placed upon trial first, where the cases were pending in separate counties and the severence asked for would have amounted to a continuance of the case. Following Price v. State, 68 Texas Crim. Rep., 556, and other cases. 4. —Same—Jury and Jury Law—Challenge for Cause—Conscientious Scruples. There was no error in allowing the State to challenge jurors for cause who stated under voir dire that they had conscientious scruples against inflicting the death penalty as punishment in a case depending on circumstantial evidence. Following Shafer v. State, 7 Texas Crim. App., 239, and other cases. 5. —Same—Eyewitness—Circumstantial Evidence. That there was an eyewitness to the actual homicide would not necessarily remove the case from the domain of circumstantial evidence, nor would the statement of the man who actually fired the fatal shot, to the effect that the defendant hired him to do so, take the case out of the rule of such evidence. Following Bloch v. State, 81 Texas Crim. Rep., 1. 6. —Same—Jury aud Jury Law—Opinion of Juror. Objection to a particular juror who stated that he had formed an opinion by mere reading of newspapers, etc., and such that would not influence him in arriving at a verdict in the case, was correctly overruled. 7. —Same—Evidence—Conspiracy—Declarations of Co-conspirators. Where the indictment alleged that defendant acted as an accomplice in the murder of his wife, and only the name of one co-conspirator is mentioned in the indictment as principal, but the State claimed a conspiracy between all the parties, which was to kill the deceased to get her money, the statements of the principals and co-conspirators pending the conspiracy was admissible in evidence, and such conspiracy continued until the main object thereof was obtained, which was to get the property of the deceased and which, therefore, did not cease until the will of the deceased was probated. Following Gracy v. State, 57 Texas Crim. Rep., 68, and other cases; also, Cox v. State, 8 Texas Crim. App., 303. Davidson, Presiding Judge, and Morrow, Judge, Concurring, qualifiedly. 8. —Same—Confessions of Principals—Conspirators—Rule Stated. The confessions of a principal are admissible in evidence on the trial of • an accomplice or accessory to evidence the commission of a crime by the principal, and when several persons are proved to have combined for the same unlawful purpose, any act done by one of the party in pursuance of the concerted plan with reference io the crime charged is the act of all., and proof of such' act is evidence against one and all the others. Following Cox v. State, supra, and other cases. 9. —Same—Order of Evidence—Conspiracy—Rule Stated—Co-conspirators. The rule that the conspiracy must be established before declarations of co-conspirators are admissible against the accused no longer obtains in this State, nor does the order in which evidence to show the conspiracy is admitted affect its admissibility. Following Nelson v. State, 43 Texas Grim. Rep., 563, and other cases. And the declarations of both the conspirators, the one who was not named in the indictment and the one who was, were admissible in evidence. Davidson, Presiding Judge, and Morrow, Judge, assenting qualifiedly. 10. —Same—Evidence—Principals—Accomplice. Where, defendant was charged as accomplice in the murder of his wife, not being actually present, when the killing took place, and this being alleged in the indictment, it devolved upon the State to prove the guilt of the principals as a part of its case against defendant, and under this rule the declarations of the principals were admissible in evidence. Following Simms v. State, 10 Texas Crim. App., 131, and other cases; besides, there was no objections to such testimony at the time of its introduction, to have such testimony limited to the principals and there was no reversible error. 11.—Same—Evidence—Motive—Co-conspirators—Circumstantial Evidence. Where upon trial of murder charging defendant as an accomplice, where the evidence showed that two of the conspirators were eye-witnesses to the killing, one being named in the indictment, it was proper to permit the State to show, if possible, that defendant attempted to destroy their evidence by killing them, and to introduce testimony that sometime after the murder these co-conspirators declared defendant’s guilty connection with thfe killing, and that shortly thereafter their dead bodies were found with indisputable evidence that they had been murdered. 12j—Same—Evidence—Declarations of Third Party—System—Other Transactions. Upon trial of murder of defendant as an accomplice, there was no error in admitting evidence to the effect that the defendant and another had tried to induce the witness, some time prior to the marriage of defendant and deceased, to marry a wealthy old woman, obtain her property, thereafter dispose of her and divide her property between them, as this bore on the plan pursued in the instant case. 13.—Same—Evidence—Domestic Relations—Husband and Wife—Motive. Where defendant was indicted for the murder of his wife, as an accomplice, there was no error in admitting testimony as to the acts and conversations between defendant and his wife, showing the lack of affection on the part of defendant for his wife, his attitude toward her, both before and after their marriage, his neglect of her, his attentions to other women, and his desire to get possession of her property, to show motive for the killing. Id.—Same—Witness—Reputation for Chastity. Where efforts were made to impeach witnesses for the State by proving their bad reputation for chastity, the court correctly overruled this attempt to attack the credibility of said witnesses. 15. —Same—Evidence—Declarations of Co-conspirator—Rule Stated. Where it was claimed by the State that the brother of the defendant made himself a party to the conspiracy of killing the witnesses who had killed the wife of the defendant, there was no error in admitting in evidence the acts and declarations of said brother; although he had entered the conspiracy at a latter stage of the same. 16. —Same—Charge of Court—Circumstantial Evidence—Accomplices—Requested Charges. Where, upon trial of murder, defendant being charged as an accomplice, the evidence was circumstantial, and the trial court fairly submitted the law thereon, and the law upon accomplices, etc., there was no error in refusing special requested charges on the same subject. 17. —Same-—Sufficiency of the Evidence—Accomplice. Where the defendant was indicted as an accomplice to the murder of his wife and his punishment assessed at ninety-nine years in Ihe penitentiary, and the record on appeal showed that the conviction was sustained under a proper charge of the court, there was no reversible error. 18.—Same—Rehearing—Declarations of Principals—Evidence. Where it was urged, on motion for rehearing, that this court committed error in holding, as admissible, the statement of a co-conspirator and principal in the offense who had not been named in the indictment, and who was contending not to be a party to the conspiracy to kill the deceased, held, that it is not necessary, in order to make admissible evidence, that one was a co-conspirator to show that he was indicted as such. Following Bass v. State, 59 Téxas Grim. Rep., 191, and other cases; besides, the uncontroverted testimony showed that at the time deceased was killed by the principal named in the indictment, the other, who was not named therein, was a few feet distant, and his statement, therefore, made some time after the killing, to the effect that he had hired a man, who was the other principal, to kill the deceased, was admissible in evidence. Davidson, Presiding Judge, and Morrow, Judge, qualifiedly concurring. 19—Same—Acts and Declarations of Co-conspirators—Motive. The co-conspirator who was not named in the indictment, but who was shown to have been a party to the conspiracy bringing about the death of the deceased, and who- was present at the homicide, and whose subsequent declarations against the defendant made his removal most material to the defendant, was a fact admissible in evidence upon the trial of the defendant for murder of his wife, as an accomplice. Davidson, Presiding Judge, and Morrow, Judge, qualifiedly concurring. 20. —Same—Declarations of Defendant—Motive. Upon trial of defendant as an accomplice for the murder of his wife, there was no error in introducing the conversation had between the witness on one side, and the defendant and another on the other, some time prior to the marriage of defendant and deceased; the proof further showing that some time during the following year defendant got a divorce from his wife, and a few months thereafter married the deceased, who was an old, wealthy woman; appellant being a young man, and that very soon thereafter he came into possession of large sums of money from deceased, etc. 21. —Same—Disqualification of Juror—Opinion of Juror. Where the juror read about the proceedings of another trial against the defendant for the murder of one of his co-conspirators and had an opinion therefrom, but upon direct examination stated positively that while he had such an opinion it was not such as would influence his action as a juror, and that he could try the case upnn the law and the evidence just as fairly and impartially as he could if he had never heard of it, there was no reversible error. 22. —Same—Evidence—Domestic Relations—Bill of Exceptions—Presumption. Where appellant on rehearing again objected to the admission of testimony on the trial as to the domestic relations between defendant and the deceased, but the bill of exceptions disclosed that the testimony was material, and there was nothing to show whether defendant was present or not at the time the statements were made, the presumption must be in favor of the correctness of the ruling of the court, and there was no reversible error. 23. —Same—Bill of Exceptions—Practice on Appeal. Where a blanket exception was made to the testimony of witnesses as to the domestic relations between the defendant and his wife, generally urging that said testimony was prejudicial, etc., such exception will not suffice to bring any matter up for review, it being disclosed by said bill that a great part of the testimony set out therein was material and admissible in evidence. 24. —Same—Principal Not Named in Indictment—Declaration—Rehearing— Motive. The admissibility of the declarations of Havard, the principal who was not named in the indictment, is upheld upon the proposition that his death was brought about by the defendant, and that it was material to the State to show that Havard had made declarations which would furnish a motive for the defendant to destroy him in order to avoid the disclosure by him of defendant’s connection with the murder of his wife.
87 Tex. Crim. 624Rather v. State (1920)
Carrying Pistol—Own Premises—Charge of Court—Residence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant used as his residence two different places, and requested, a charge thereon, which "was refused by the court, the same was reversible error. Following Gibbs v. State, 70 Texas Crim. Rep., 278, and other cases.
87 Tex. Crim. 625Wilson v. State (1920)
The opinion states the case.
87 Tex. Crim. 632Godwin v. State (1920)
The opinion states the case.
87 Tex. Crim. 639Kincaid v. State (1920)
1. —Murder—Manslaughter—Sufficiency of the Evidence. Where, upon trial of murder and a conviction of manslaughter, the evidence was sufficient to support the conviction, under a proper charge of the court, there is no reversible error. 2. —Same—Evidence—Gambling. The facts that the parties were engaged in gambling with cards was one of the incidents leading up to the homicide, and was properly admitted in evidence.
87 Tex. Crim. 641Anderson v. State (1920)
1.'—Murder—Conspiracy—Charge of Court—Declarations and Acts of Co-conspirators. Where, defendant was charged as a principal, and the evidence showed that his co-principal did the killing, the State relying solely upon circumstantial evidence to connect the defendant with the offense, admitting the acts and declarations of said co-principal, in the absence of the defendant, the court should have instructed the jury that such acts and declarations made before the act was done were inadmissible to show the conspiracy and being admitted could not be used as such, and the mere presence of the defendant at the homiicde without aiding and assisting his co-principal would not make him a principal and could not prove the conspiracy. 2:—Same—Evidence—Threats—Declarations ■ of Co-defendant—Charge of Court. A declaration by a co-defendant conveying a threat against somebody but not showing what party he referred to, and not referring to the deceased should not have gone to the jury and was inadmissible for any purpose, unless a conspiracy was shown and that said remarks related to the deceased, and the jury should have been instructed that this testimony could not be used to prove the conspiracy.
87 Tex. Crim. 645Hollien v. State (1920)
The opinion states the case.
87 Tex. Crim. 646Wheeler v. State (1920)
1.—Assault to Murder—Aggravated Assault—Charge of Court. Where, upon trial of assault with intent to murder and a conviction of aggravated assault, the defendant excepted to the court’s charge on assault to murder, the same need not be considered on appeal. 2. —Same—Charge of Court—Statement of Facts. In the absence of a statement of facts, an exception to the charge of the court on aggravated assault cannot be considered on appeal. 3. —Same—Evidence—Bill of Exceptions—Practice on Appeal. Where defendant excepted to the action of the court in refusing to permit his counsel to- ask a witness a certain question, but the bill of exceptions failed to show how the matter came up, or its relation to the case and the other testimony, the same cannot be considered on appeal, especially in the absence of a statement of facts.
87 Tex. Crim. 648Ealey v. State (1920)
The opinion states the case.
87 Tex. Crim. 651Earnest v. State (1920)
1.—Abortion—Sufficiency of the Evidence. Where, upon trial of abortion the evidence was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Evidence—Circumstantial Evidence. Upon trial of abortion there was no error in permitting the prosecutrix to testify to the beginning of her interrupted menses four or five weeks after her treatment by the defendant the second time, to show that the cessation of such menstrual flow had been removed by the treatment of defendant. 3. —Same—Evidence—Pregnancy—Foetus, Upon trial of abortion, there was no error in refusing a peremptory instruction for acquittal on the ground that the State had not made- out its case either as to the pregnancy of prosecutrix or the destruction of the foetus by the defendant; these issues of fact, having been directly and pertinently submitted to the jury, and the jury having found’ against the defendant. 4. —Same—Rules Stated—Pregnancy—Question of Fact. There are no established rules known to this court or set forth in the testimony in this case by which pregnancy may be determined in its earlier stages, and none by which we may satisfy ourselves that the State had not made out its ease, and the court therefore properly submitted these issues of fact to the jury. 5. —Same—Argument of Counsel—Invited Argument. Where, the argument of State’s counsel was objected to and the record showed that the same had been invited by the defense and besides) was a proper inference from the facts, there was no reversible error. 6. —Same—Requested Charges—Limitation of Argument. Where, the requested charges were fully covered by the main charge oí the court, and the limitation placed upon the argument of the attorneys was not unreasonable, there was no reversible error. [Rehearing denied October 13, 1920.—Reporter.]
87 Tex. Crim. 655Mills v. State (1920)
1.—Misdemeanor Theft—Recognizance—Practice on Appeal. Where the appeal was dismissed because of a defective recognizance, but a certified copy of a sufficient recognizance, filed in the court below, accompanied the appellant’s- motion to reinstate the appeal, said motion is granted. 2.—Same—Requested Charge—Want of Fraudulent Intent. Where, upon trial of misdemeanor theft the special instruction on the part of the State was too restrictive with reference to the intent of the accused, the facts showing that defendant had a right to take the alleged property by consent of the owner, regardless of whether the minds of the parties completely agreed upon the price, which said requested charge demanded of the jury, the same was reversible error, especially where the requested charge of defendant was refused on this phase of the case. 3.—Same—Civil Liability—Insufficiency of the Evidence. The enforcement under civil liability should never be aided by a criminal prosecution; and if the relation of debtor and creditor existed between the parties, no resort should have been had to the criminal courts, and it is to be seriously doubted as to whether any theft was committed in the instant case.
87 Tex. Crim. 657Bowen v. State (1920)
Gaming—Bill of Exceptions—Statement of Fact—Jury and Jury Law. In the absence of a statement of facts and bills of exception, the motion t@ quash the venire cannot be considered on appeal, and the judgment must be affirmed.