88 Tex. Crim.

Volume 88 — Texas Criminal Reports

207 opinions

88 Tex. Crim. 1Gray v. State (1920)
The opinion states the case.
88 Tex. Crim. 7Davis v. State (1920)
1.*—Eape—Sufficiency of the Evidence. Where upon trial of rape upon a female under the age of consent, the evidence sustained the conviction, there was no reversible error. 2.—Same—Name of Prosecutrix—Idem Sonans. Where upon trial of rape the indictment alleged the name of prosecutrix to be Mary Hodge, and the evidence showed her name was Mary Hodges, there was no reversible error under -the rule of idem sonans. 3. —Same—Rule Stated—Idem Sonans. If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true name, the variance and misspelling is not material. Or, where the names are pronounced rather indiscriminately, either one way or the other, and in the spelling the variation or difference is slight, it would not constitute ground for a variance under the doctrine of idem sonans. Following Gentry v. State, 62 Texas Crim. Rep., 497, and other cases. 4. —Same—Charge of Court—Variance-—Idem Sonans. Where upon trial of rape the evidence showed that Mary Hodge and Mary Hodges was the same person, and she testified as to the carnal intercourse with her by defendant, there was no sufficient variance between the names to require reversal, and it was harmless error that the court instructed the jury if they found she was the same person mentioned, in the indictment and the one with whom the intercourse was had, it would be sufficient. [Rehearing denied October 13, 1920.—Reporter.]
88 Tex. Crim. 10Tillman v. State (1920)
2, of Dallas. Tried below before the Honorable C. A. Pippen. Appeal from a conviction of theft; penalty, four years confinement in the penitentiary. The opinion states the case.
88 Tex. Crim. 13Rasberry v. State (1920)
1. ^-Murder—Theory of Defense—Charge of Court. Where, upon trial of murder, the theory of the State was that the fatal shot was fired by the defendant, using a shotgun after firing several shots with a pistol, and defendant’s theory was that he used no shotgun and that deceased was not killed by him but was the victim of one of the shots fired by parties who were engaged in the difficulty, and submitted a requested instruction that before they could render a verdict against him the jury must believe beyond a reasonable doubt that the shot or shots which killed the deceased were fired out of a shotgun, then in the hands of the defendant and no one else. The same should have been given, as it was not contained in the main charge and the State did not claim conspiracy, and besides it was the defense’s theory arising from the evidence. Following Martin v. State, 57 Texas Crim. Rep., 264, and other cases. 2. —Same—Self-defense—Charge of Court—Defense of Property—Undisclosed Motive. Where, upon trial of murder, the testimony of the defendant claimed the right of preventing one of the assaulting parties from his entering his premises and interfering with his protection of his property, it was not incumbent upon the defendant to determine the undisclosed purpose of the parties so trespassing, and a charge of the court limiting this right was error. Following Brumley v. State, 21 Texas Crim. App., 223, and other cases. 3. —Same—Change of Venue—Practice on Appeal. Where the judgment is reversed and the cause remanded, it is not necessary to review the evidence introduced upon a motion for change of venue.
88 Tex. Crim. 17Gordon v. State (1920)
1. —Murder—Newly Discovered Evidence—Motion for New Trial. To entitle appellant to a new trial on account of newly discovered evidence, it was incumbent upon him to make it clear by his motion for new trial that he had not been wanting in diligence to secure the absent testimony, and to show that he was not aware of the existence of said testimony before the trial, and this rule prevails, notwithstanding the accused is in jail, unless it appears that there was no outside .assistance available, and where the trial court overruled the motion for new trial, on the ground of newly discovered evidence, there is no error in the absence of a showing that he abused his discretion. Following Gray v. State, 65 Texas Crim. Rep., 204, and other cases. 2. —Same—Attorney and Client—Practice on Appeal—Rule Stated. The defendant having counsel soon after his arrest, their knowledge of the witnesses and their diligence, or lack of diligence, to procure the testimony would be imputed to him. Following Patten v. State, 84 Texas crim. Rep.. 584. 3.—Same—Motion for New Trial—Practice on Appeal. Where the motion for new trial, on account of newly discovered evidence, did not negative the fact that the defendant in person may have known that the alleged absent witness and others named in his motion had seen the tragedy, and the testimony at the most was cumulative and the probable truth of the testimony of the absent witness was a subject for the consideration of the trial judge, in the light of the other testimony, etc., there was no error in overruling the motion. Following Hensley v. State, 81 Texas Crim. Rep., 620.
88 Tex. Crim. 17Robison v. State (1920)
The opinion states the case.
88 Tex. Crim. 21Dunn v. State (1920)
1.—Murder—Jury and Jury Law—Verdict. Where upon appeal from a conviction of murder the record disclosed that, after the jury had been empanelled and the trial had proceeded for some time, one of the jurors was excused with the consent of the defendant and the case thereafter went to its final conclusion with only eleven jurors who rendered a verdict, all of the proceedings including the verdict itself was a nullity, and the judgment must be reversed and the cause remanded. 2.—Same—Rule Stated—Twelve Jurors. A jury in a felony ease must consist of twelve jurors and the defendant cannot waive his right to be tried by a jury of twelve men. Following Jones v. State, 52 Texas Crim. Rep., 303, and other cases.
88 Tex. Crim. 23Roberto v. State (1920)
Tried below before the Honorable Geo. E. Hosey. Appeal from-a conviction of robbery with firearms; penalty, imprisonment in the penitentiary for five years.
88 Tex. Crim. 24Campbell v. State (1920)
The opinion states the case.
88 Tex. Crim. 28Carter v. State (1920)
The opinion states the case.
88 Tex. Crim. 29Thompson v. State (1920)
Assault to Murder—Evidence—Silence of Defendant—Confession. Where, upon trial of assault with intent to murder, the defendant testified to circumstances that would show the State’s theory false, placing him in the attitude of not shooting at the party injured, etc., the fact that he remained silent with reference to these facts and circumstances at the time of his arrest should not be used as a matter of impeachment, and where this was done over his objection, the same is reversible error. Following: Ripley v. State, 58 Texas Crim. Rep., 489, and other cases.
88 Tex. Crim. 30Jones v. State (1920)
Theft—Practice on Appeal—Legal Presumption. In the absence of a statement of facts and a bill of exceptions, the presumption must be indulged that the evidence supports the verdict and that, the proceedings were regular, there being a good indictment.
88 Tex. Crim. 31Danley v. State (1920)
Tried below before the Honorable H. P. Weldon. Appeal from a conviction of theft of value over fifty dollars; penalty, two years imprisonment in the penitentiary.
88 Tex. Crim. 32Allen v. State (1920)
The opinion states the case.
88 Tex. Crim. 34Vyoral v. State (1920)
1. —Aggravated Assault—Evidence—Credibility of Witness—Motive. Upon trial of aggravated assault by driving defendant’s automobile on a public road against the horse and huggy of the injured party, the court should have permitted the defendant to develop from a cross-examination of said injured party that she had sued him for damages on account of the incident to show motive of 'the prosecutrix as tending to affect the credibility of the witness. Following Huffman v. State, 85 Texas Crim. Rep., 11, and other cases. 2. —Same—Mistake of Fact—Requested Charge. Where, upon trial of aggravated assault made upon a female the testimony showed that the injured party was wearing a man’s hat and shirt and presented the general appearance of a man .and looked like such to the defendant who was misled into the belief that she was a man without fault or want of care upon his part, he should have been afforded the benefit of the law as applied in criminal cases of an honest mistake of fact, which, while it would not have excused him, would have mitigated the offense. Following Simpson v. State, 48 Texas Crim. Rep., 328, and other cases.
88 Tex. Crim. 36Revels v. State (1920)
1,—Burglary—Continuance—Immateriality of Testimony. Where the testimony of the absent witness was immaterial to the main issue of the case, or in contravention of the testimony introduced by the defendant and besides, the diligence was insufficient, the application was correctly overruled. 2.—Same—Charge of Court—Recent Possession—Circumstantial Evidence. Where, upon trial of burglary the facts showed that something like three or four weeks after the alleged burglary the defendant was found in the possession of the pistol taken from the alleged burglarized house, which he claims to have purchased, and the court gave a charge on circumstantial evidence and directly applied it to defendant’s theory of purchase, there was no reversible error. Following Wheeler v. State, 34 Texas Crim. Rep., 350. 3.—Same—Evidence—Bill of Exceptions—Reproduction of Testimony. Where appellant claimed that there was no proper predicate laid to the reproduction of the testimony of an absent witness who resided in another State, but defendant’s bill of exceptions was not verified by the trial judge and did not set out the alleged testimony, there was no error in overruling same. 4.—Same—Sufficiency of the Evidence. Where, upon trial of burglary the evidence was sufficient to sustain a conviction under a proper charge of the court, there was no reversible error. 5.—Same—Rehearing—Statements in Opinion—Dates. Where appellant’s motion for rehearing contended that the dates set forth in the opinion were erroneous, but it appeared therefrom that the dates are correct, except that they are located in the wrong month, but this was not a matter of importance, there was no reversible error.
88 Tex. Crim. 41Ex Parte Argenta (1920)
The opinion states the case.
88 Tex. Crim. 42Haynes v. State (1920)
1. —Murder—Charge of Court—Negligent Homicide of the Second Degree— Apparent Danger. Where, upon trial of murder, the court submitted the issue of negligent homicide of the second degree and required the jury that the evidence must show apparent danger of causing the death of the deceased, and refusing a requested charge omitting the clause in regard to apparent danger, there was no error under Article 1116, Vernon’s Penal Code. 2. —Same—Charge of Court—Definition of Negligence. Upon trial of murder, in which the facts raised the issue of negligent homicide, there was no error in the court’s charge defining negligence as the failure to exercise that degree of care and caution which a man of ordinary prudence would use under like circumstances, as this is the statutory-definition under such cases and is applicable to negligent homicide of both degrees. 3. —Same—Temporary Insanity—Recent Use of Ardent Spirits. Under the terms of Article 41, Penal Code, evidence of temporary insanity from the recent use of ardent spirits is receivable only for the purpose of mitigating the penalty, and there was no error in refusing a requested charp-e that the jury must take into consideration such condition of the defem1 and that he could not be held to the same degree of caution as a sober person. 4. —Same—Requested Charge—Main Charge. Where, the defendant’s requested charge to the effect that, if the jury found that he had no intent to shoot or kill deceased, they could in no event convict him of murder, was fully covered by the main charge in the proper manner, there was no error in refusing same, besides the requested charge was improper. 5. —Same—Evidence—Character of Defendant. There was no error where the State was permitted to ask the defendant as a witness if he did not kill another man and had been indicted for it, to which the court sustained an objection; besides, the witness could be asked if he had riot been charged with a felony, in proper form. 6. —Same—Condition of Defendant—Intoxicating Liquor—Charge of Court. Where, upon trial of murder, the defendant insisted that the evidence showed that when defendant committed the homicide he was in such a condition from the use of liquor as to be crazed, and that he had been struck several blows upon the head, etc., and that he was not responsible for his action; however, the record shows that the trial court submitted this question to the jury, and there was no reversible error in the conviction of murder.
88 Tex. Crim. 46Luce v. State (1920)
The opinion states the case.
88 Tex. Crim. 46Holland v. State (1920)
The opinion states the case.
88 Tex. Crim. 51Hafley v. State (1920)
The opinion states the case.
88 Tex. Crim. 53Freeman v. State (1920)
The opinion states the case.
88 Tex. Crim. 55Brown v. State (1920)
Tried below before the Honorable J. R. Warren. Appeal from a conviction of murder; penalty, seven years imprisonment in the penitentiary.
88 Tex. Crim. 60Brown v. State (1920)
Murder—Manslaughter—Judgment—Sentence—Practice on Appeal. Where, the record did not contain the judgment entered upon the verdict assessing a penalty of two years in the penitentiary, but only contained a final sentence, the judgment must be reversed and the cause remanded, as without a judgment the sentence would be unauthorized.
88 Tex. Crim. 61Bridges v. State (1920)
1—Assault to Murder—Assignment of Error—Charge of Court—Practice on Appeal. Attacks upon the charge of the court must be made at the time the charge is read to the jury and before the beginning of the argument, and must be in writing, and where there was no exception taken to the court’s charge, at the proper time, it is too late to raise this question in an assignment of error. 2. —Same—Assignment of Error—Fundamental Error—Practice on Appeal. Assignments of error are not necessary, and, if the point is well taken by an assignment of error, it must be of a fundamental nature which would go to the very foundation of the conviction as being wrong, and in the instant case there was no such fundamental error in the trial. 3. —Same—Misconduct of Jury—Practice in District Court—Verdict. Where defendant’s bill of exceptions recited that the evidence sought to be introduced was to prove by two jurors, that from the charge of the court in two paragraphs thereof they believed the court had instructed them to either find the defendant guilty of assault with intent to murder or of aggravated assault, held: that such question cannot be raised in the manner indicated, nor will the jurors be permitted to thus impeach their verdict, following Collins v. State, 66 Texas Crim. Rep., 602, and other cases. 4 —Same—Misconduct of Jury—Argument of Counsel—Verdict. Where, defendant’s bill of exceptions recited that he offered to show by one of the jurors that other jurors remarked while considering their verdict that from the ch rge of the court and the argument of district attorney they were required to believe that they should find the defendant guilty of either assault with intent to murder or aggravated assault, and further that bystanders heard the argument of district attorney, etc., but the record showed that there was no exception taken to the remarks of the district attorney, and besides, the jury will not be permitted to thus impeach their verdict. Following Ulmer v. State, 71 Texas Crim. Rep., 579, and other cases. 5.—Same—Sufficiency of the Evidence. Where, upon trial of assault with intent to murder, the evidence was sufficient to sustain a conviction of that offense under a proper charge of the court, and the defendant’s contention that he did not intend to kill, but was shooting to frighten the party injured, was adversely decided to him by the jury, there was no reversible error.
88 Tex. Crim. 64Bell v. State (1920)
1. —Murder—Continuance—Subsequent Application. Where, upon trial of murder, the defendant filed a fourth application for continuance which shows on its face that a number of other witnesses testified to the same facts expected to be proved by the absent witnesses, and that it was therefore cumulative, and there was a want of diligence as to another absent witness, the application was properly refused. 2. —Same—Evidence—Bes Gestae—Declarations of Deceased. Where, upon trial of murder, the court admitted testimony that deceased, about twenty minutes after the shooting, in reply to questions, stated that, defendant shot him for nothing, he being found helpless on the ground, the same was res gestae and there was no reversible error. Following Lewis v. State, 29 Texas Crim. App., 201, and other cases, and the statement that “ha shot me for nothing” would not make such declarations inadmissible. 3. —Same—Bill of Exceptions—Practice on Appeal. Where the bills of exception did not set out any material error, they will not be reviewed on appeal. 4. —Same—Husband and Wife—Evidence—Buie Stated. It is the settled law of this State that a wife, testifying for her husband, may be impeached as any other witness, upon a predicate relating to her testimony in chief, and where defendant had introduced his - wife the State had a right to examine her on cross-examination, as to contradictory statements made to her sister. 5. —Same—Bemarks by Court—Practice on Appeal. While the remarks by the court concerning defendant’s witness should not have occurred, the matter need not be discussed, as the judgment must be reversed upon other grounds. 6. —Same—Evidence—Husband and Wife—Witness—Privileged Communication. Where the brother of defendant gave material testimony for him, the State could not lay a predicate to impeach said witness by asking him if he did not tell his wife after the shooting that he did not see any of it, and upon his denial of such statement place the wife of witness upon the stand and have her testify that he did make such statement. This was precluded by Article 794, Vernon’s C. C. P., and constitutes reversible error. 7. —Same—Privileged Communication—Husband and Wife. The rule forbids testimony from either spouse as to communications to or from the other, and the fact that the husband and wife are separated or divorced at the time of the trial would make no difference.
88 Tex. Crim. 68Armstrong v. State (1920)
Unlawfully Selling Intoxicating Liquors—Plea of Guilty—Motion for New Trial—Practice on Appeal. Where, upon trial of unlawfully selling spirituous, malt and vinous liquors, the defendant pleaded guilty in due form, but thereafter filed a motion tor a new trial because the conviction was contrary to the law and evidence, the case must be affirmed in the absence of a statement of facts, bills of exception, or brief.
88 Tex. Crim. 69Miller v. State (1920)
1.—Embezzlement—Indictment—Corporation—Surplusage. Where, defendant was indicted under Article 1416, Vernon’s Penal Code, and it was alleged that he was a clerk and employee of a corporation, there was no error in the trial court, in passing upon defendant’s motion to quash, to hold that the use of the word “employee” was surplusage, where it occurred in said indictment. 2.—Indictment—Embezzlement—Capacity of Accused—Fiduciary Relation. Where, upon trial of embezzlement, under Article 1416, Vernon’s Penal Code, the capacity in which the defendant was acting for his employer was alleged as clerk, in such manner as to bring it within the terms of the statute, and further alleged the fiduciary relations existing, and that it was his duty to receive and care for certain moneys of the corporation, the indictment was sufficient. 3.—Same—Insufficiency of the Evidence—Clerk—Cashier—Variance. - Where, upon trial of embezzlement under Article 1416, Vernon’s Penal Code, it was alleged that defendant was a clerk and employee of a certain corporation (trial court holding that the word “employee” was surplusage because it is not named in the statute), and the evidence on the trial showed that he was a cashier and not a clerk, and the proof entirely rebutted the proposition that he was ever employed in such capacity, the variance between the proof offered and the allegation in the indictment was fatal and reversible error. 4.—Same—Evidence—Other Transactions—Intent—Rules Stated. Where, upon trial of embezzlement under Article 1416, Vernon’s Penal Code, there was a vigorous cross-examination of other employees of the alleged corporation, suggesting the appropriation of the alleged embezzled money by such other employees, and other facts in the instant case, there was no error in permitting the State to show other transactions on. the part of defendant of like kind as the one charged in the indictment, to show intent or guilty knowledge, limiting said evidence to its proper sphere. Following Fry v. State, 86 Texas Crim. Rep., 73. 5.—Same—Evidence—Letters. Where, upon trial of embezzlement, under Article, supra the State introduced the contents of two letters found in defendant’s trunk when arrested, which, although in defendant’s handwriting^ were neither dated, signed, nor addressed, and nothing in either letter referred to any of the facts of any transaction transpiring while defendant was employed by the alleged corporation, etc., the same were inadmissible in evidence. 6.—Same—Circumstantial Evidence—Charge of Court. Where, on trial of embezzlement under Article 1416, supra, the main fact sought to be proved was a matter of inference, the case was one of circumstantial evidence, and a failure of the court to charge on circumstantial evidence, is reversible error. Following Ward v. State, 10 Texas Crim. App., 513, and other cases. 7.—Same—Rehearing—Indictment—Different Counts. This court, in its original opinion, should have1 stated that the indictment herein contains seven counts, and that upon defendant’s motion the State elected the seventh count in which defendant was charged as a clerk or employee of a corporate company. This would have been clearer but in no wise affects the decision. 8. —Same—Words and Phrases—Clerk—Employee—Embezzlement—Corporation- The word “employee” not appearing in the statutory expression of who may commit embezzlement for a corporation, it is evident that the legal terms used in describing defendant’s attitude and relationship in the indictment, being thus narrowed down to the allegations that he was a clerk, there must be evidence which showed him to be a clerk, else the court will be forced to the conclusion of a variance between the indictment and the proof. 9. —Same—Clerk—Employee—Cashier—Legal Definitions. Where, the motion for rehearing insisted that, while appellant was known and designated by those who employed him, and who were associated with him in business, as a cashier, that he was, notwithstanding, a clerk, and that the question for decision is not, what a man is called, but what he is, held, that there is a clear distinction between a cashier and a clerk, both in view of the lexicographers and the leading definition given in the law books, and under the facts of the instant case. 10. —Same—Evidence—Letters—Case Cited. Upon motion for rehearing, the court is unable to find any parallel between the case cited by appellant and the facts in the instant case, with regard to the introduction of letters found in appellant’s possession when arrested. Distinguishing Thompson v. State, 35 Texas Crim. Rep., 523. 11.—Same—Circumstantial Evidence—Charge of Court—Rule Stated. The factum probandum in embezzlement cases is the fraudulent conversion and appropriation of the property in question, and though it he established by positive testimony that said property came into the possession of the defendant, this would not relieve the case of being one of circumstantial evidence, and the court should have submitted, a charge on circumstantial evidence as requested. Following Stewart v. State, 71 Texas Crim. Rep., 480, and other cases.
88 Tex. Crim. 77Miller v. State (1920)
The opinion states the case.
88 Tex. Crim. 79Ratcliff v. State (1920)
Theft—Ownership—Possession—Variance—Buie Stated. Where, upon trial of theft, the ownership and possession were alleged in W. E. Smith, and the proof showed that the possession was in B. W. Ench, and that the property was under his care, control and management at the time it was taken, such variance was fatal to the conviction. Following Otero v. State, 30 Texas Crim. App., 455, and other cases.
88 Tex. Crim. 82Barrow v. State (1920)
The opinion states the case.
88 Tex. Crim. 84Mandosa v. State (1920)
1".—Theft of Turkeys—Transcript—Caption—Adjournment of Court. The Statute limiting the time within which bills of exception and statement of facts may be filed renders knowledge of the date of adjournment necessary, and the clerk of the court below is directed to file a correct and complete transcript; and this being complied with, the cause is heard upon its merits. 2. —Sa¡me—Evidence—Argument—Practice in County Court. Upon trial of theft of turkeys, after the evidence was closed and before the argument was completed, the defendant should have been permitted to introduce material testimony showing that he was not guilty of the offense, under Article 718, C. C. P„ following Poole v. State, 51 Texas Crim. Rep., 596, and other cases. 3. —Same—Imputing Crime to Another—Circumstantial Evidence—Confession. It is in all cases proper to prove by competent evidence that the offense was committed by a person other than the accused. And in a case depending wholly upon circumstantial evidence, it has been held that proof of this character may be made by introducing the confession of another, and where such was offered in the instant case the same should have been received in evidence. Following Blocker v. State, 55 Texas Crim. Rep., 30, and other cases.
88 Tex. Crim. 87Williams v. State (1920)
The opinion states the case.
88 Tex. Crim. 98Mayzone v. State (1920)
1. —Theft From Person—Theories of the Case—Charge of Court. Where, upon trial of theft from the person, by snatching the property from the injured party so suddenly as not to allow time for resistance, the evidence in the case presented three theories: first, that charged in the indictment; second, that there was resistance by the injured party; and third, that the defendant obtained the money by means of a fraudulent bet, and the charge presented these theories fairly well and there was no exception to the charge, except a very general one, there was no reversible error on that ground, although the charge might have been more specific in submitting these different theories. 2. —Same—Practice in District Court—Different Defendants. Where two different defendants were charged by separate indictments for the same offense, but were tried jointly and only one charge given in the case, and there was objection in not charging the law separately under each case, the court should have done so. 3—Same—Allegation—Resistance by Party Injured. Unless the facts supported the allegations in the indictment charging theft from the person that the property alleged was so suddenly taken as not to allow time tor resistance, the conviction could not be sustained, if the evidence showed that there was a struggle between defendant and the party injured;' or, under the phase of the facts that the defendant obtained the money by means of a fraudulent bet. 4 —Same—Evidence—Arrest—Declarations by Defendant. Where, upon trial of theft from the person, the State was permitted, over the objection of the defendant, to prove inculpatory statements made by one of them to the party having him under arrest while in custody and some were made before the grand jury while he was under arrest, and these statements were not made according to the statute, Article 810, G. C. P., and were not in writing, etc., the same should not ¿ave been admitted in evidence, and the same was reversible error. 5,—Same—Evidence—Declarations by Co-defendant. Where, upon trial of theft from the person, the defendant objected to the introduction of the statements of his co-defendant made after the transaction in the absence of the defendant, the same should have been sustained.
88 Tex. Crim. 101Thomas v. State (1920)
1. —Misdemeanor Theft—Ownership—Possession—Buie Stated—Joint Owners. The Statute provides where there are joint owners of property, possession may be alleged in either. It must also be alleged that the property is in one of the owners who has the control and possession of it, and if they are all in possession it can be alleged in either owner; but, if one of the owners is in exclusive possession then it must be alleged in the party having the control, care, and management of the property. Following Frazier v. State, 18 Texas Crim. App., 434, and other cases. 2. —Same—V ariance—Allegation—proof. Where, the alleged stolen property was alleged to be in G. E. Reynolds, who was part owner thereof, but the proof showea that he had leased it thereafter to Joe Reynolds who placed it in possession of Murray, the variance was fatal between the allegation of ownership and possession, and the conviction cannot be sustained. 3. —Same—Corpus Delicti. Where, upon trial of theft there was a failure to prove the corpus delicti, the conviction could not he sustained.
88 Tex. Crim. 104Pollard v. State (1920)
The opinion states the case.
88 Tex. Crim. 106Grice v. State (1920)
1. —Embezzlement—Fiduciary Character of Agent—Rule Stated. In prosecutions for embezzlement, it is essential that the proof sho\> that the relation charged in the indictment existed, and that the property came into the hands of the accused by virtue of such relationship, and where in the instant case the evidence did not meet the allegations in the indictment, the conviction could not be sustained. Following Leach v. State, 46 Texas Crim. Rep., 509, and other cases. 2. —Same—Cases Stated—Grand Lodge of Odd Fellows—Suspension of Local Lodge—Misdemeanor—Felony. Where, from the indictment and the evidence on trial of embezzlement it appeared that the defendant wag secretary of the local lodge of Odd Fellows; that the Grand Order of the lodge contained an insurance feature and that the secretary of the local lodge became the agent of the Grand Order to collect certain dues which were payable to the Grand Order quarterly; that the local order became in arrears and was suspehded under the charter and by-laws by the Grand Order, and defendant was notified of his suspension; that prior to such suspension the amounts received by the defendant were small and trivial at the time, but that subsequently the defendant collected an amount in excess of fifty dollars and failed to remit it to the Grand Order, he could not be convicted of a felony, as his fiduciary relationship did not exist at the time. Following Webb v. State, 8 Texas Crim. App., 310, and other cases. 3. —Same—Evidence—Remittances—Post Office. Where defendant claimed that he had made certain remittances to the Grand Lodge through the post-office, such remittances could be proved if the postmaster had an independent recollection thereof, and such testimony should have been received. 4. —Same—Evidence—Express Office—Negative Testimony. On trial of embezzlement the court below was not in error in permitting the express agent to testify that he had failed to find in the records in his office any stubs showing remittances by express money order by the defendant to the officer of the Grand Lodge, although this was negative testimony.
88 Tex. Crim. 109Rogers v. State (1920)
1. —Rape by Force—Practice on Appeal—As to Sufficiency of the Evidence. Where, the disposition of the ease renders it unnecessary that this court should express an opinion as to whether the evidence is sufficient to sustain the conviction, and the judgment is reversed and the cause remanded upon another ground, no such opinion is expressed. 2. —Same—Remarks by Court—Outcry by Prosecutrix. Where, upon trial of rape by force, the State relied upon the testimony of the injured female alone to show the defendant’s guilt, she having failed to report the outrage to her family, together with other weaknesses in the evidence, the remarks by the trial court in examining the defendant’s witness, who testified that defendant had not committed a felony, under a suspended sentence plea, to the effect that he thought there was a better way to prove the fact, etc., the same was a comment on the testimony and reversible error, as the same was not harmless error in the instant case. 3. —Same—Suspended Sentence—Evidence—Record—Rule Stated—Remarks by Judge. The rules of evidence do not require the introduction of records to negative that defendant had never been convicted of a felony, and the intimation by the trial judge, implying that a record was required was not only unwarranted but a harmful comment and reversible error; especially, where the jury failed to recommend a suspended sentence English v. State, 85 Texas Crim. Rep., 450.
88 Tex. Crim. 112Ex Parte Lozano (1920)
Appeal from El Paso. Application for writ of habeas corpus presented to Honorable W. D. Howe, in vacation, who refused to issue the write of habeas corpus. A transcript in the instant case was made out by the clerk of the District Court of El Paso County, Texas, who certifies to same alone, without certificate of the judge sitting in vacation. The applicant, in his application for writ of habeas corpus, alleged that he was arrested in the Republic of Mexico by two Mexicans dressed in civilian clothes, without process, and was carried to a point in the Republic of Mexico some three or four blocks south of the line between the United States and said Republic of Mexico, on the Mexican side, and there turned over to a person whom the applicant took to be a police officer of the city of El Paso, Texas, and, by-force, threats and fraud and without his consent and over his protest was transported across the international bridge into the United States, at El Paso, Texas, and there incarcerated in the county jail, from which restraint of his liberty applicant seeks release. The judge refused to issue the writ of habeas corpus, and appellant gave notice of appeal
88 Tex. Crim. 114Rutland v. State (1920)
The opinion states the case.
88 Tex. Crim. 122Bradford v. State (1920)
The opinion states the case.
88 Tex. Crim. 126Holloway v. State (1920)
1. —Assault to Murder—Bill of Exceptions—Practice on Appeal—Rule Stated. In the abence of a bill of exceptions reserved to the action of the court, •his rulings upon the admission of evidence cannot be reviewed in this court. 2. —Same—Newly Discovered Evidence—Motion of New Trial—Affidavits. In the absence of supporting affidavits, in the motion for a new trial on the ground of newly discovered evidence, and in the absence of proof before the trial court, there was no error in overruling his motion for new trial on that ground. 3. —Same—Statement of Facts—Motion for New Trial—Practice on Appeal. Where, the statement of facts of the evidence in support of a motion for new trial was not filed until after the adjournment of the trial court for the term, the same cannot be considered on appeal. Following Probest v. State, 60 Texas Crim. Rep., 609, and other cases. 4. —Same—Sufficiency of the Evidence—Practice on Appeal. Where, upon trial of assault with intent to murder, the evidence was sufficient to support the verdict, and nothing was shown in the record on appeal, that the trial was other than a legal one, the judgment must be affirmed. 5. —Same—Rehearing—Evidence—Bill of Exceptions—Practice on Appeal. Whers, appellant in his motion for rehearing sought a reversal because improper evidence was received during the trial, but the record discloses that defendant was represented by experienced and skillful lawyers, and that no objection upon the trial of the case to the evidence now complained of was made, this court must assume that it was without objection, and the motion for new trial will not take the place of a bill of exceptions, and there was no reversible error.
88 Tex. Crim. 129Ex Parte Jonischkies (1920)
Prom DeWitt County. Original Application for writ of habeas corpus before this court, asking release from illegal restraint.
88 Tex. Crim. 130Mullins v. State (1920)
1. —Rape—Continuance—Practice on Appeal. Where the judgment is reversed and the cause remanded, it is unnecessary to pass on the question of refusing an application for continuance, or the sufficiency of the evidence. 2, —Same—Confession—Exculpatory Statements—Charge of Court—Penetration. Where, upon trial of rape, upon a female under the age of consent, the defendant made a confession which excluded the idea of penetration and was exculpatory in its nature, the court should have submitted a charge to the jury that the burden was on the State to show that these exculpatory statements were not true, and the failure to do so was reversible error. Following Draper v. State, 57 S. W. Rep., 655.
88 Tex. Crim. 132Deckerd v. State (1920)
1. —Theft—Confessions—Arrest—Custody. Where, upon trial of theft, it appeared that defendant was at all times under suspicion and under investigation before the grand jury, and that on some of the occasions he was actually in custody and under arrest, all his admissions and confessions made during this time were not admissible in evidence, the same not having been made according to the statute as provided under Article 810, G. C. P. 2. —Same—Custody—Question of Fact. Where, it became a question of fact whether at the time, when defendant made inculpatory declarations, he was in custody, the same should have been submitted to the jury for decision. Following Wood v. State, 22 Texas Crim. App., 431, and other cases. 3.—Same—Withdrawing Illegal Evidence—Practice on Appeal. Where, upon trial- of theft the court admitted certain declarations of defendant which incriminated him, and thereafter withdrew them from the jury, but the record in the instant case was in such condition that this court is unable to say that the injurious effect produced upon the jury by such evidence was removed by the court’s statement to the jury after they had heard it, same was reversible error Following McCandless v. State. 42 Texas Grim. Rep., 59. and other cases.
88 Tex. Crim. 135Ex Parte Davis (1920)
Habeas Corpus—Transcript—Practice on Appeal. Where relator was remanded to custody in the court below on two separate writs of habeas corpus and there was no evidence in the record on appeal, there is nothing tangible upon which this court could base an opinion or review the ruling of the trial court, and this court will not consider a separate paper showing that after notice of appeal the relator was carried away on a writ of extradition, although the jurisdiction of this court attaching, it could have made such disposition of the case as was proper, had the record been in proper condition.
88 Tex. Crim. 136Johnson v. State (1920)
1. —Unlawfully Passing Forged Instrument—Evidence—Bill of Exceptions— Practice on Appeal. Where appellant complained that he was not allowed on cross-examination of the State’s witness to have him answer certain questions, but the bill of exceptions did not show what the answer to the questions would have been, the matter cannot be reviewed and there was no reversible error. 2. —Same—Rehearing—Charge of Court—Weight of Evidence—Practice in District Court. The Statutes, Article 735, C. C. P., requires that exceptions to the court’s charge must be taken before it is read to the jury and in writing, specifying the ground of objection, and where this was not done, the complaint that the court’s charge is on the weight of the evidence, cannot be considered, and is not such fundamental error which goes to the basis of the case; besides, it must be seriously doubted whether there was any error if the exception had been properly taken. 3. —Same—Other Offenses—Evidence—Intent—Charge of Court. Where, upon trial of passing a forged instrument, there was an issue as to the fraudulent intent of the defendant, there was no reversible error in introducing testimony of another similar offense; so that if an exception had been properly taken to the court’s charge limiting this testimony to such intent, there was no reversible error.
88 Tex. Crim. 138Bereal v. State (1920)
1.—Murder—Manslaughter—Insult to Female Relative—Withdrawal of Testimony. Upon the trial of murder and a conviction of that offense, it was reversible error on the part of the court below, in the instant case, to withdraw from the consideration of the jury a large amount of evidence introduced by the defense tending to show undue intimacy between the wife of the defendant and the deceased prior to the homicide, on the ground that this testimony had not been communicated to the defendant. 2. —Same—Evidence—Uncommunicated Acts of Intimacy—Insult to Female Relative. Where, upon trial of murder, the defendant introduced testimony that a short time before the homicide he was apprised of the fact that the deceased had been intimate with defendant’s wife, and that this was the cause of the homicide, other evidence that the deceased at different times was guilty of uttering insulting words and indulging in insulting conduct toward defendant’s wife, although not communicated to him, was admissible to strengthen the probable truth of the fact that defendant had received such information. Following Hill v. State, 52 Texas Crim. Rep., 245, and other cases. Distinguishing McVey v. State, 81 S. W. Rep., 740, and other cases. 3. —Same—Evidence—Insult to Female Relative—Former Conduct of Wife. Where, upon trial of murder the defendant claimed insulting conduct by the deceased to his wife, and the evidence showed that defendant had been married some seven years to said wife at the time of this homicide, and that he killed deceased on first meeting for intimacy with defendant’s wife of which he had been informed shortly before the homicide, the State could not overcome adequate cause because of the fact that prior to the wife’s marriage to the defendant she had been an inmate of a house of prostitution, the evidence showing that she had been true to the defendant until the coming of the deceased some months before the homicide. Following Ballard v. State, 71 Texas Crim. Rep., 587. 4. —Same—Evidence—General Reputation. Where, upon trial of murder, a witness for the defense had testified to defendant’s good reputation, it was inadmissible to ask the witness if he would have so testified if he had known that defendant had married a whore.
88 Tex. Crim. 143Gates v. State (1920)
1—Prohibition—Selling Liquor—Misconduct of Jury—Defendant’s Failure to Testify. Where, upon trial of a violation on the prohibition law, the jury in their retirement alluded to the failure of defendant to testify and to other testimony not before the jury, the defendant not having testified in the case, the same was reversible error. 2.—Same—Other Questions—Practice on Appeal. Where, other matters complained of on appeal may not arise upon another trial, the same will not be discussed, neither will be the suggested reference as to a conflict between the Federal and the State law, as the judgment is reversed and the cause remanded on other grounds.
88 Tex. Crim. 146Burgess v. State (1920)
1.—Bigamy—Indictment—Venue—Motion to Quash Indictment. Where, upon trial of bigamy, the defendant presented a motion to quash the indictment because the same contained no sufficient allegation that the alleged bigamous marriage took place in the county of the prosecution, but the record showed that defendant’s contention was incorrect, there was no reversible error. 2.—Same—Evidence—Accomplice—Charge of Court—Question of Fact. Where, upon trial of bigamy the testimony showed that the defendant on the day of the alleged bigamous marriage informed the woman whom he married that he was already married, the court should have submitted a charge on accomplice’s testimony as applicable to such female, as knowledge of the fact on her part made her a principal, and whether she had such knowledge is a question of fact for the jury. Following Burton v. State, 51 Texas Crim. Rep., 202, and other cases. 3. —Same—Evidence—Practice in District Court—Declarations by Defendant. Where, the State’s witness had already testified without objection that the defendant, while in jail, stated that he did not know why he married his first wife, there was no error in overruling an objection to similar testimony thereafter, as this was harmless error. 4. —Same—Evidence—Former Statement of Prosecutrix—Order of Evidence. Where, on cross-examination by the defendant of the alleged second wife, he handed to her a paper and asked if she had not signed the same, which she admitted, whereupon he offered the contents of the paper in evidence, to which the court sustained an objection, but notified him that he might offer it later when it became material, there was no reversible error, as he should have offered the document in evidence at the proper time; besides, the defendant took no further notice of the document thereafter. 5. —Same—Evidence—Self-Serving Declaration. Upon tria! of bigamy, statements by the defendant to his first wife with reference tc the second marriage were self-serving and inadmissible in evidence, 6. —Same—Theory of Defense—Burden of Proof. "Where, upon trial of bigamy the defendant claimed that he was unconscious at the time of the second marriage and that he knew nothing of it, the court correctly charged the jury that the burden of establishing such defense was upon defendant.
88 Tex. Crim. 150Brookreson v. State (1920)
1. —Murder—Argument of Counsel. Where, upon trial of murder, while the private prosecutor was addressing the jury in the presence of a large number of people, the latter applauded the statement of the prosecutor that a verdict of not guilty, or one with the suspended sentence, would stink in the nostrils of every citizen in the county of the prosecution, and counsel repeated this remark after being reprimanded by the court, the same was reversible error. Following Conn v. State, 11 Texas Crim. App., 390, and other cases. 2. —Same—Rule Stated—Argument of Counsel. It is a safe and sound rule that where the facts justify a conviction, ana the argument of State’s counsel probably induced a punishment above the minimum, it is reversible error. Following McIntosh v. State, 85 Texas Crim. Rep., 417. 3. —Same—Suspended Sentence. Another reason for reversal on account of the argument of State’s counsel, is the fact that defendant entered his plea for a suspended sentence, of which said argument would deprive him. 4. —Same—Newly Discovered Evidence—Practice on Appeal. Where, the judgment is reversed and the cause remanded upon other grounds, the Question of newly discovered evidence need not be considered.
88 Tex. Crim. 154Moore v. State (1920)
1. —Embezzlement—Insufficiency of the Evidence. Where the' indictment charged the. defendant with embezzlement, and converting money received for certain goods in his charge, it was essential that the proof sustain this allegation, and where there was a failure of such proof, the same is reversible error. 2. —Same—Definition of Offense—Statutes Construed—Bailee. Under Article 1348, C. C. P., defining theft by bailee, the contention of defendant that the prosecution cannot be sustained for embezzlement, is correct. Following Lee v. State, 81 Texas Crim. Rep., 129. But, where the bailment contemplated, that the defendant sold the goods, etc., as charged in the indictment, converting the money belonging to his principals, the embezzlement statute, Article 1416, C. C. P., would apply. 3. —Same—Theory of Defense—Purchase—Charge of Court. Upon trial of embezzlement by conversion of certain goods, etc., the defendant’s theory of purchase should have been submitted as requested.
88 Tex. Crim. 155Stroud v. State (1920)
Misdemeanor Theft—Charge of Court. In misdemeanors, a charge of the court is not required unless it is requested, and the record not setting out the charge of the court, and the proceedings in other respects being regular, the conviction is sustained.
88 Tex. Crim. 156Lee v. State (1920)
The opinion states the case.
88 Tex. Crim. 157Miller v. State (1920)
1. —Theft—Indictment—Proof—Ownership—Variance—Special Owner. Where, upon trial of theft, alleging the taking from the possession of H. B. Lamb, certain property, and the proof showed that Enloe was the person who had the care, control and management of said property and was in actual possession of it at the time when it wag taken, was not a mere custodian, but a special owner, .the variance is fatal. Following Frazier v. State, 18 Texas Crim. App., 442. 2. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of theft, the evidence showed that the defendant had admitted the taking of the alleged stolen property, the main, inculpatory fact, a charge on circumstantial evidence was not required. Following Heard v. State, 24 Texas Crim. App., 111. 3. —Same—Sufficiency of the Evidence—Conspiracy—Theft. Where, there was evidence that the alleged stolen property was sold by the accomplice, and a check payable to the defendant put in his possession, and further evidence which authorized the jury to infer that this check was collected and the proceeds divided with the defendant; the proof of these transactions, taking place in the absence of the defendant, including the introduction of the check, was not obnoxious to the hearsay rule, as it showed a conspiracy between defendant and his accomplice which continued until the object was accomplished; besides, the check was a part of the fruits of the crime. Following Pierson v. State, 18 Texas Crim. App., 561. 4. —Same—Argument of Counsel—Comparison of Handwriting. Where, the admitted signature of the defendant was in evidence, and an issue of fact was raised as to whether defendant had indorsed the check in evidence, etc., there was no error in permitting the prosecuting attorney to discuss the comparison of the signatures in his argument. Following Hatch v. State, 6 Texas Crim. App., 384.
88 Tex. Crim. 159White v. State (1920)
1.—Murder—Deadly Weapon—Presumption—Charge of Court—Defendant’s Standpoint. Where, upon trial of murder, the evidence showed that a pistol was found near the body of the deceased and that the trigger guard was bent so as to make it impossible to shoot with the pistol, and the court charged upon the use of a deadly weapon and the legal presumption arising therefrom in stereotyped form, the requested instruction to the effect that this law would apply to the defendant although'the pistol of the deceased was broken, this being unknown to the defendant, should have been given, as the theory of self-defense must be viewed from the defendant’s standpoint. Following Ward v. State, 30 Texas Crim. App., 689, and other cases. ■2.—Same—Manslaughter—Charge of Court. Where, upon trial of murder, the evidence raised the issue of manslaughter, and showed among other facts that as the defendant approached the scene of the difficulty between his brother and the deceased he saw in the hands of the latter a pistol with which he was trying to shoot defendant’s brother, and used language which was calculated to arouse in defendant’s mind a degree of anger, rage, and resentment to render it incapable of cool reflection, the court should have submitted the requested charge on manslaughter. Following Pickens v. State, 86 Texas Crim. Rep., 657, and other cases. .3-—Same—Retreat—Charge of Court—Self-defense. Where, upon trial ol murder, the evidence showed that the defendant acted in defense of his brother in shooting the deceased, and raised the issue of retreat with reference to said brother who was engaged in the trouble and whose life was endangered, the court should have, submitted a charge on the question of retreat. Following Dobbs v State, 51 Texas Crim. Rep,. 133. 4.—Same—Evidence—Declarations of Deceased—Motive. Where, ipon trial of murder, the evidence showed as defendant approached the scene of the trouble between his brother and the deceased and demanded that the latter turn his brother loose, the deceased replied that he would not do so and that he was going to treat him like he had treated defendant’s father, defendant should have been permitted to introduce testimony to prove the circumstances of the trouble between his father and the deceased, who had seriously injured his father in a personal conflict; both as to the theory of self-defense and manslaughter. 5—Same—Evidence—Undisclosed Motive of Deceased. Upon trial of murder, the widow of the deceased should not have been permitted to testify that her husband left home that morning, of the homicide, for the purpose of going to his pasture after some cattle or business connected with his landed property, all of which was unknown to defendant and his brother at the time. Following Adams v. State, 44 Texas Crim. Rep., 64, and other cases. (3.—Same—Principals—Charge of Court—Rule Stated. It is always a sate rule to follow the statutory law, and without discussing the court’s charge on principals it is suggested that he should adhere more strictly to the statute as it is written upon another trial.
88 Tex. Crim. 166Lucas v. State (1920)
1.—Murder—Evidence—Mental Condition of Defendant—Written Statement— Buie Stated. Unless it be admitted, or placed beyond question that a party making the statement offered in evidence was at the time mentally unsound, the trial court will not undertake to stop the orderly progress of the trial in order to-investigate and determine what was the mental condition of the party who made such statement, and there was no reversible error in overruling an objection on this ground. 2. —Same—Continuance—Want of Diligence—Practice on Appeal. Where, defendant’s application for continuance showed a want of diligence and it did not appear therefrom that if the absent witness had been present he would have testified, as stated, same was properly overruled; besides, the record contained neither an application for continuance nor an order of court refusing the same. 3. —Same—Bequested Charges—Bill of Exceptions—Practice on Appeal. Where, neither the bill of exceptions nor the record showed when such requested instructions were presented to the court, the same cannot be considered on appeal. Following Watts v. State, 171 S. W. Rep., 202, and other cases. 4. —Same—Self-defense—Charge of Court—Bill of Exceptions. Where, the bill of exceptions to the court’s charge on self-defense was that the charge failed to instruct the jury fully and as they should be in structed, with reference to the law of self-defense, the evidence in said cause adduced before the jury having shown that the issue of self-defense is the principal issue in said case, the same is too general and cannot be considered on appeal. 5.—Same—Charge of Court—Abandoning the Difficulty. Where, upon trial of murder, the court properly submitted a charge on murder, manslaughter, and self-defense, and defendant was convicted of murder, and the evidence did not raise the issue of the abandonment of the difficulty, there was no reversible error in the court’s failure to charge thereon; besides, there was only a general exception to the court’s main charge, and the evidence being sufficient to sustain the conviction, there was no reversible error. 6.—game—Rehearing—Written Statement—Examining Trial—Practice. Where, upon trial of murder the court admitted in evidence the voluntary written statement of defendant made before the examining magistrate, and it was not claimed by the defendant upon his trial that he was insane or of unsound mind, either at the time of the homicide or at any time thereafter, but he simply objected thereto, that the defendant was mentally incapacitated from an educational standpoint, and from natural ability to understand the consequences or purpose of the statement offered in evidence, and there being no question of the sufficiency of the predicate laid by the State for the introduction of this testimony', the trial court properly overruled these objections and refused to hear testimony at that time on the mental condition of defendant; and the defendant’s opportunity, if he desired to cast doubt on such evidence, was when he was introducing his side of the case. 7.—Same—Continuance—Want of Diligence—Practice on Appeal. Where, the alleged absent testimony would have conflicted with the testimony of the absent witness on the examining trial, and there was a total want of diligence, the application for continuance was properly overruled.
88 Tex. Crim. 173Ahlberg v. State (1920)
The opinion states the case.
88 Tex. Crim. 179Hill v. State (1920)
The opinion states the case.
88 Tex. Crim. 183Davis v. State (1920)
1. —Pool Hall—Transcript—Caption—Date—Practice on Appeal. Where, it is impossible for this court to tell whether the transcript contains the record of the trial during any particular year, as no date appears anywhere in the caption, nor is it there stated when the term of the court began and ended, the appeal must be dismissed; but where on re-hearing it appeared that a proper caption has been affixed, etc., the appeal is reinstated and decided upon its merits. 2. —Same—Constitutional Law—Concurrent Resolutions—Legislative Journals —Corrections. Where, upon appeal from a conviction of the so-called “pool hall law,” Chapter XIV, Acts of Thirty-sixth Legislature, appellant attacked the constitutionality of said law because a concurrent resolution of the Legislature, containing the Act in question, directed that the same be so corrected as to make it use in a certain place the word “and” instead of the word “or,” which appeared in the original bill as engrossed, held, that the Legislature may make corrections such as these at any time before the bill is signed by . the presiding officers of the several houses. 3. —Same—Legislative Bills—One Subject Expressed in Title—Concurrent Resolution. Where, appellant attempted to invoke that part of the Constitution which forbids that any bill or Act shall have more than one subject, which must be expressed in its title, and contended that a concurrent resolution to correct the original bill was a bill itself, and should have been referred to a committee, read on three several days, etc., held, that a concurrent resolution is neither a bill nor a joint resolution; besides, the Legislature is not deprived of its power to correct that which manifestly appears to be a clerical error, especially where the bill has not been signed by the presiding officers of the two houses. Distinguishing: Hunt v. State, 22 Texas Crim. App., 396, and other cases. 4. —Same—Caption—Matters not Comprehended in Bill. Where, appellant complains that the caption of said Act, supra, is not sufficient in that there are matters in the bill not comprehended by the caption, held, that this would not be a good objection to the caption, and that the bill would only be invalid as to matters not so comprehended in the scope of the title, and, where the caption and the act itself are not in conflict, said contention is untenable. 6.—Same—Caption—Terms of Act—Rule Stated. Where, appellant objected to the above law, supra, in that the purpose oT' the Act, as stated in the caption, was to forbid pool halls, the inclusion of billiards and billiard tables in the definition of a pool hall is not allowable, but it appeared from the Act in question that it did not comprehend legislation incongruous in itself, and its provisions by a fair construction have connection with the subject expressed, the same is valid; besides, Section 35, Article 3, of our State Constitution must be liberally construed; and, if the act be singular in substance and its provisions germane in any degree, it will be upheld. Following Nichols v. State, 32 Texas Crim. Rep., 403, and other cases. 6—Same—Constitutional Law—Rule Stated—Legislative Power. There is no express limitation in our Constitution upon the power of the Legislature in defining what constitutes a given offense, and, unless the language and terms in such definition be so repugnant, unintelligible, or inadequate as to fail to make clear the meaning and intent of the law-makers, etc., the court will not undertake to create limitations or invade the domain of a coordinate department of the government. 7.—Same—Pool and Billiard Tables—Legislative Power. Where, the appellant contended that the inclusion of billiards and billiard tables in the definition of a pool hall is not allowable, held, that the court does not know judicially or otherwise any reason why denominating a certain place as a billiard hall or parlor might not mean that pool, as well as billiard tables, were there exhibited, and we do not think the Legislature exceeded its power, or included repugnant or ■ incongruous elements when it defined pool halls as being those places where pool and billiard tables were exhibited. Following Newman v. Williamson, 46 Texas Civil Appeals, 615, and other cases. 8.—Same—Pool Halls—Billiards—Legislative Intent. We hold without further elaboration that the Legislature had power to include within its definition of a pool hall those places where were exhibited tables or structures at which were played games of pool or billiards of any kind or character. 9.—Same—Words and Phrases—Statutes Construed—Constitutional Law—Surplusage. ■■ Where, appellant attacked the so-called pool-hall law, Chapter XIV, Section 1, of the Act of the Thirty-sixth Legislature, as unconstitutional, in that said act seeks to include within its definition of a pool hall any place where is exhibited any table or structure upon which is played a game similar or 'dissimilar to the game of pool or billiards played with balls, cues, or pins, or any similar device, and contended that the use of the words “or dissimilar” destroyed the whole law, held, that the same is untenable, and that said words may be disregarded as surplusage. 10.—Same—Rule Stated—Statute Construed. When a liberal reading of a statute leads to an absurdity plainly not intended, the courts will put such construction upon the language used as corresponds with the plain meaning and intent of the Legislature, and to effect that purpose, will strike out words clearly superfluous. Following Gage v. Chicago, 201 Ill., 93. 11. —Same—Words and Phrases—Legislative Intent—Surplusage. The words “or dissimilar” may be treated as surplusage, and do no violence to the Act, suprra,' and do not take from it that which the Legislature purposely wrote there, and do not affect the frame work of the entire Act. The purpose of the Legislature was to write this law in such broad terms as to make impossible the existence of those places known in common parlance as pool halls, and its intention cannot be misconstrued. 12. —Same—Innocent Game—Pool Tables—Statutes Construed. There is no condemnation in said Act of innocent games; besides, this has no particular reference to the instant case; it not being contended here that defendant operated any other kind of tables save pool, clearly within the violation of the statute.
88 Tex. Crim. 194Stockton v. State (1920)
The opinion states the case.
88 Tex. Crim. 196Ray v. State (1920)
1.—Murder—Requested Charge—Manslaughter—Singling Out Evidence. Where, upon trial oí murder and a conviction of manslaughter, the defendant requested a charge, there being evidence that the deceased killed the brother of the defendant, that that in itself constituted adequate cause, there was no error in refusing same, as it singled out one fact and based adequate cause thereon; besides, such killing occurred years before the-homicide, and the parties had met on several occasions, and the main charge on manslaughter was sufficient. 2 —Same—Evidence—Cross-examination. Where, defendant testified in his own behalf, and the State proved by him on cross-examination that he had been indicted for theft, the defendant in re-direct examination testified that he was acquitted by the jury and there was no exception by the State to this, there was no error in not permitting defendant to further prove by himself that the express company which he had sued, supposedly on the theory that he had been unjustly prosecuted, compromised or settled this matter. Distinguishing Boone v. State, 85 Texas Crim. Rep., 661; Tippett v. State, 37 id., 186. 3.—Same—Argument of Counsel—Practice on Appeal. Where, upon appeal the record showed that, while the argument of counsel on both sides was improper, yet the counsel for the State in his arguments replied chiefly to the arguments of the counsel for the defendants, there was no reversible error.
88 Tex. Crim. 200Woods v. State (1920)
1. —Burglary—Delinquent Child—Insufficiency of the Evidence. Where, upon trial of burglary by a delinquent child, the evidence- was insufficient to sustain the conviction, the same was reversible error. 2. —Same—Recent Possession—Rule Stated—Description of Property. The unexplained possession of property recently stolen is recognized as a sufficient circumstance to justify the jury in finding that the accused was connected with the burglary where the breaking was otherwise proved; but, where the identity of the property possessed by the accused with that which was taken from the burglarized premises is not established, the conviction cannot be sustained; and, where such property is not so identified, but is simply of the same kind as that which has been taken, the conviction cannot be sustained. Following Weyland v. State, 86 Texas Crim. Rep.. 562, and other eases. 3.—Same—Recent Possession—Explanation. Where, the explanation made by the defendant at the time his possession was challenged was consistent with the State’s evidence, and the same was exculpatory, the inference of guilt cannot be sustained. Following Russell v. State, 86 Texas Crim. Rep., 580.
88 Tex. Crim. 203Pruitt v. State (1920)
The opinion states the case.
88 Tex. Crim. 208Felder v. State (1920)
The opinion states the case.
88 Tex. Crim. 209Salazor v. State (1920)
88 Tex. Crim. 209Salazar v. State (1920)
1. —Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence although circumstantial, was sufficient to sustain .the conviction, there is no reversible error. 2. —Same—Jury and Jury Law—Peremptory Challenges—Bill of Exceptions. In the absence of bills of exception to overruling an objection to jurors, presented in the motion for new trial, the same will not be considered on appeal; besides, the motion does not show that appellant exhausted his peremptory challenges. 3. —Same—Jury and Jury Law—Qualification of Juror. Where, the defendant objected, as urged in motion for new trial, that a juror had expressed himself as unfavorable to him, in stating that if he were taken upon the jury he would break defendant’s neck, but the record showed that the statement of facts bearing upon the conduct of the juror was filed long after the adjournment of the trial court, the same cannot be considered; besides, there was no error in refusing to grant a new trial for that reason, if the record were considered.
88 Tex. Crim. 211Pyor v. State (1920)Reversed and remanded
1. Forgery <&wkey;44('/2) — Instrument must be introduced in evidence. In a prosecution for passing a forged instrument, the instrument must be introduced in evidence and that fact appear in the record. 2. Forgery <&wkey;34(6,9) — Proof of passage of check variance from charge of passing draft. In a prosecution for passing a forged instrument, there was a fatal variance between an indictment charging the passing of a draft dated January 18 and evidence showing the passing of a check dated January 20. 3.Criminal law &wkey;>l 169(2) — Error in admitting testimony harmless when otherwise proved without objection. In crimiñal case, error in admitting testimony is harmless where the same matters were testified to by other witnesses without objection.
88 Tex. Crim. 211Pryor v. State (1920)
1. —Forgery—Passing Forged Instrument—Insufficiency of the Evidence. Where, the alleged forged instrument was set out in the indictment, and it did not appear from the record that any such instrument, either in form, substance, tenor, or effect was introduced in evidence, the conviction cannot be sustained. Following McConnell v. State, 85 Texas Crim. Rep., 409. 2. —Same—Evidence—Judgment—Parole Testimony. While, the rule of evidence is that the good faith and validity of the judgment of the court of record cannot be attacked by parole, but the matter was brought out in the testimony of other witnesses without objection, there was no reversible error.
88 Tex. Crim. 212Godby v. State (1920)
1. —Theft Over the Value of Fifty Dollars—Continuance—Want of Diligence. Where, the application for continuance showed a want of diligence, the same is properly overruled. 2. —Same—Rule Stated—Diligence Required. Under our practice the application for continuance must disclose the use of diligence, and when the facts entitle the accused to an attachment, he will not he held to have used sufficient diligence unless he procures the issuance of same. 3. —Same—Continuance—Practice on Appeal. Where, the alleged absent testimony, in the application for continuance, was partly immaterial, and other testimony was probably not true, the application was correctly overruled. 4. —Same—Evidence—Circumstantial Evidence—Res Gestae. Upon trial of theft over the value of fifty dollars, there was no error in permitting in evidence certain stencils by means of which the numbers of cars could be changed, it being shown that they were in the car of prosecuting witness when the same was found in the possession of the defendant. This was res gestae. 0
88 Tex. Crim. 214Williams v. State (1920)
1.—Rape—Force—Consent—Female Under Age of Consent. Where, upon trial of rape upon- a female under the age of consent, the evidence showed that the female gave her consent to the act of sexual intercourse, and no force was used, this was no defense. 2.—Same—Evidence—Witness—Delinquent Child—Perjury of Minors. Where, upon trial of rape upon a female under the age of consent, both she and the State’s female witnesses were all under the age of eighteen years, and defendant contended that therefore they could not be punished for perjury under an indictment for perjury, but would be sent to the juvenile training school for delinquent children and were therefore not competent witnesses. Held, that this contention is untenable, and the rule of law now is that all children of any age who testify may be subject to the pains and penalties of perjury if they have sufficient intelligence to Know right from wrong; and the law with reference to delinquent children would not change the character of the offense but simply change the place of punishment and the mode of trial. Following Moore v. State, 49 Texas Crim. Rep., 450. Distinguishing Frazier v. State, 84 S. W. Rep., 360. «3.—Same—Sufficiency of the Evidence. Where, upon trial oí rape upon a female under the age of consent, the evidence sustained the conviction, there was no reversible error 4.—Same—Rehearing—Leading Question—Case Stated—Bill of Exceptions. Where, upon trial of rape upon a female under the age of consent, the defendant complained in his motion for rehearing on appeal that the court below permitted a leading question to a State’s witness, that the witness was neither unwilling nor unfriendly, but this last proposition was not certified by the court, and the question in the instant case was not a leading question under the surrounding facts, there was no reversible error: besides, the bill did not affirmatively exclude the idea that, under the particular circumstances of the instant case, the court, was justified in permitting the, question; there was no reversible error. 5.—Same—Sufficiency of the- Evidence—Case Stated. Where, upon trial of rape upon a female under the age of consent, the conviction was sustained by the evidence although the facts were very-peculiar and unusual, inasmuch as that the occurrence happened before other eyewitnesses, yet it having been proved to the satisfaction of the jury, their verdict will not be disturbed.
88 Tex. Crim. 220Beasley v. State (1920)
1. —Assault to Murder—Evidence—Requested Charge. Where, upon trial of an assault with intent to murder, the prosecuting witness was permitted to testify that he went down to the scene of the shooting on the night in question upon information that the defendant wanted to see him there, this was hearsay and inadmissible, and the requested charge should have been submitted instructing the jury not to consider it, there being an issue on the identity of the defendant. 2. —Same—Evidence—Declaration of Third Party—Res Gestae. Upon trial of assault with intent to murder, there was no error in admitting in evidence as to what was said by some other person to the defendant prior to the shooting, as a part of the res gestae of defendant’s statement in reply to the effect that the injured party should be shot. 3.,—Same—Bills of Exception—Qualifications by Court. Where, it appeared from the record that the qualifications made by the trial judge to the bills of exception, the same as qualified were sent to appellant’s counsel and by him and received and filed with the clerk of the trial court, this is tantamount to the acquiescence of counsel in such qualifications; distinguishing Kirkpatrick y. State, 85 Texas Crim. Rep.. 132. 4.—Same—Practice on Appeal. Where, errors complained of will not likely occur upon another trial, and the case is reversed upon other grounds, the evidence will not he discussed at length, in view of another trial.
88 Tex. Crim. 223Westbrook v. State (1920)
1. —Selling Intoxicating Liquors—Validity of Federal and State Laws. It not being necessary to pass on the question of conflict between what is known as the Dean and the Volstead laws, raising the question of State and Federal authority, the same is not discussed. 2. —Same—Jeopardy—Former Conviction—Practice in Trial Court. "Where, defendant was indicted in two indictments, one for the sale of whiskey to H, and the other to R, and was convicted in the H case and appealed to this court, and when the R case was called pleaded former conviction and jeopardy in proper form, and also filed a motion to continue until the appeal in the H case should be decided, the continuance or postponement should have been granted until said appeal had been decideel, to give him opportunity to file his plea of former conviction if justified under the facts. Following Phillips v. State, 73 Texas Crim. Rep., 393, and other cases.
88 Tex. Crim. 225Jackson v. State (1920)
Kape—Sufficiency of the Evidence—Charge of Court. Where, upon trial of rape upon a female under the age of consent, the court charged the jury that, if they found the girl to be under eighteen years of age at the time of the intercourse, this would be sufficient on the question of non-consent under the amended Statute elevating the age of non-consent to the age of eighteen, instead of submitting the former statute' fixing the age at fifteen years; but the testimony showing that at the time of the carnal intercourse with defendant she was under fifteen years of age, and the amended statute having been enacted after the occurrence, the age of the girl at the time of the intercourse would be the criterion and not at the time of the trial, there was no reversible error.
88 Tex. Crim. 227Watson v. State (1920)
The opinion states the case.
88 Tex. Crim. 231Bird v. State (1920)
The opinion states the case.
88 Tex. Crim. 233Trinkle v. State (1920)
The opinion states the case.
88 Tex. Crim. 238Aycock v. State (1920)
1. —Murder—Manslaughter—Beginning Difficulty—Provoking Difficulty—"(Jncommunicated Threats. Where, upon trial of murder and a conviction of manslaughter, there was evidence of uncommunicated threats, and the issue as to who began the difficulty was raised, the court’s failure to charge upon the issue of uncommunicated threats, under the facts, was reversible error. Following Kirklin v. State, 73 Texas Crim. Rep., 351, and other cases. 2. —Same—Charge of Court—Rule Stated. It is a -rule of universal application that the charge of the court must always conform to the facts, and the issues arising in the particular case on trial. 3. —Same—Uncommunicated Threats—Rule Stated—Self-defense. Uncommunicated threats, as a general rule, are provable in murder trials in homicide cases when the evidence raises the issue and leaves in doubt the t question as to which of the parties to the homicide began the attack; and this is true where the issue of self-defense is in the case. And, this issue, being before the jury, a charge on uncommunicated threats is necessary.
88 Tex. Crim. 241Berlew v. State (1920)
The opinion states the case.
88 Tex. Crim. 248Gonzales v. State (1920)
1. —Bobbery—Indictment—Election by State—Capital Offense—Practice in Trial Court. Where the indictment charged robbery by assault and violence, and also by the use of firearms, the latter being a capital offense when deadly weapons are used, that charging the use of firearms, which merely enhances the punishment, is not essential, and, it is within the power of the State to abandon that phase and prosecute upon the other. Following Crouch v. State, 219 S. W. Rep., 1099, and, where in the instant case the State practically took this course, there was no reversible error. 2. -—-Same—Special Venire—Number of Challenges—Practice in Trial Court. Where, upon trial of robbery, the State abandoned that part of the indictment which charged the use of firearms and tried defendant for a felony not capital, the trial court correctly overruled defendant’s motion that he would claim the privilege of exercising fifteen peremptory challenges and confined him to ten peremptory challenges, and he was not entitled to A special venire. Following Weaver v. State, 52 Texas Crim. Rep., 11. 3. —Same—Name of Defendant—Practice in Trial Court. Where, the defendant was tried under the name of “Gonzales,” the fact that in the indictment his name was spelled “Gonzilas,” was no ground for quashing the indictment, as he did not suggest that name by which he wished to be tried. 4. —Same—Principals—Charge of Court. Where, upon trial of robbery, the evidence raised the issue of principals, the court correctly charged thereon. 5. —Same—Evidence—Bill of Exceptions—Co-defendant. Where, the bill of exceptions did not show that the conviction of defendant’s co-defendant grew out of the same transaction, as that for which the defendant was tried, but the contrary appeared from the record, there was no error in admitting testimony that said co-defendant had been convicted of the crime of highway robbery; besides, the bill did not state the facts whereby it could be determined that such evidence was inadmissible. Following Horn v. State, 50 Texas Crim. Rep., 404. 6. —Same—Arguument of Counsel—Rule Stated—Bill of Exceptions. It is necessary to adhere to the rule that the bill of exceptions should disclose not only the argument which is complained of, but such pertinent facts as may be necessary to enable the court to determine whether an error has been committed which would reverse the case, and in the absence thereof there was no reversible error. 7.—Same—Evidence—Bill of Exceptions—Imputing Crime to Another. Where, upon appeal from a conviction of robbery, appellant complained of the refusal of the court to permit him to prove by .the prosecuting witness that he had associated with the woman in the case prior to the robbery, offering opportunity for her to steal the property, but it appearing that this was before the robbery, the complaint is without merit. Likewise, there was no error of the refusal of other like evidence. 8. —Same—Evidence—Bill of Exceptions—Argument of Counsel. Where, the bill of exceptions did not disclose in what manner the remark of the prosecuting attorney might have prejudiced the defendant, but simply contained the giounds of objection, the same was insufficient and there was no reversible error. 9. —Same—Deductions of Jurors—Bill of Exceptions—Motion for New Trial. The testimony of the jurors as to the deduction they drew from the proceedings with reference to the remark of State’s counsel was not available to aid the bill of exceptions, and trenched upon the rule declaring them incompetent to impeach their verdict; and, while exceptions may arise to the general rule, the facts in the instant case do not come within any of these exceptions. Following Watson v. State, 82 Texas Crim. Rep.. 310, and other cases. 10. —Same—Misconduct of Jurors—Presumption. Where the facts rebut any presumption of injury by reason of the ' juror conversing with outsiders, but simply received information that members of his family were ill, there was no reversible error. Following Speer v. State, 57 Texas Crim., Rep., 397, and other cases.
88 Tex. Crim. 254Adair v. State (1920)
1. —Aggravated Assault—Serious Bodily Injury—Insufficiency of the Evidence. Where, upon trial of aggravated assault by premeditated design, and by the use of means calculated to inflict serious bodily injury, there was no evidence of any serious bodily injury, and the evidence was otherwise insufficient to sustain the conviction, the judgment must be reversed and the cause remanded. 2. —Same—Complaint—Information. The complaint is a prerequisite for prosecution of a misdemeanor in the County Court; however, the bills showing on motion for rehearing that the complaint was inadvertently omitted from the record, the dismissal is set aside and the judgment reversed and the cause remanded for want of sufficient testimony to support the conviction.
88 Tex. Crim. 256Steen v. State (1920)
1. —Murder—Negligent Homicide Second Degree—Charge of Court —Practice on Appeal. Where, the court submitted the issues only of murder and negligent homicide in the second degree, the court’s failure to instruct the jury in submitting the latter, that it must appear that there was apparent danger resuting from the unlawful act of defendant in firing the pistol, this failure may be corrected upon another trial, and is not very material error. 2. —Same—Manslaughter—Charge of Court. Where, upon trial of murder and a conviction of that offense, the evidence raised the issue of manslaughter and a requested charge on manslaughter was refused, the same was reversible error. 3. —Same—Manslaughter—Rule Stated—Adequate Cause. The causes named in our statute as adequate to reduce a homicide to mansaughter are well understood to be instances and not limitations, and when a killing takes place and there are circumstances in evidence from which such adequate cause might be inferred, the duty of the trial court is to submit such issue to the jury. 4. —Same—Manslaughter—Adequate Cause—Functions of Jury. Whether said mental condition did so exist, and whether the causes in evidence were such as would be calculated to produce such passion in the mind of an ordinary person, are questions of fact for the jury and are not to be decided by the court. 5. —Same—Case Stated—Malice—Sudden Passion. ■ Where, the killing necessarily, in the instant case, was attributable either to malice, or sudden passion, the answer to this question, as to what mental state existed, could only be made by the jury and not by the court, since it was a fact issue and not a question of law, and the court should have submitted a charge on manslaughter. 6. —Same—Manslaughter—Rule Stated—Other Reasons Than Passion. That manslaughter is not precluded by reason of the fact that defendant claimed a killing for other reasons than passion, is well established, is well settled. Following Williams v. State, 61 Texas Grim. Rep., 356, and other cases. 7. —Same—Manslaughter—Statutory Causes—Other Causes—Rule Stated. Other causes may produce manslaughter passion besides those named in the statute, and the trial judge is not the arbiter of the weight of the testimony suggesting such other causes, but must submit the matter to the-jury. Following Black v. State, 38 Texas Crim. Rep., 58, and other cases. —Same—Manslaughter—Rule Stated—Charge of Court. Manslaughter should be charged by the court where the evidence raises a doubt as to whether same is in the case. Following Arnwine v. State, 49 Texas Crim. Rep., 5, and other cases. 9. —Same—Rehearing—Accident—Manslaughter—Charge of Court. Where the State, upon rehearing, claimed that appellant did not claim an intentional killing on passion, but that his act, if the cause of death, was not so intended; held, that it was not necessary that the testimony of defendant be that which raises the issue of manslaughter, if the facts of the case fairly tend to indicate the homicide resulting from any such emotions of the mind, as renders it incapable of cool reflection, it becomes the duty of the trial court to submit manslaughter in his charge; and this even when the accused claimed the homicide to be an accident. Following Green v. State, 58 Texas Crim. Rep., 428, and other cases. . 10. —Same—Manslaughter—Charg; of Court—Murder—Presumption. Where, upon trial of murder, the evidence raised the issue by the language and acts of the accused that there was passion arising from adequate cause, it was reversible error for the court to assume that defendant acted with a sedate and deliberate mind and to refuse to submit the issue of manslaughter. This was a question for the jury to decide.
88 Tex. Crim. 262Ivens v. State (1920)
Murder—Manslaughter—Sufficiency of the Evidence—Self-Defense. Where, upon trial of murder and a conviction of manslaughter, appellant insisted on appeal that the evidence of self-defense was conclusive, etc., but the record showed the contrary, and the evidence was otherwise sufficient to sustain the conviction, the judgment is affirmed.
88 Tex. Crim. 264Ex Parte Ellis (1920)
The opinion states the case.
88 Tex. Crim. 265Hooter v. State (1920)
1. —Bigamy—Sufficiency of the Evidence. Where, upon trial of bigamy, the evidence sustained the conviction, there was no reversible error on that ground. 2. —Same—Temporary Insanity—Recent Use of Intoxicating Liquors—Marriage. Where, upon trial of bigamy, the defendant claimed temporary insanity at the time of the marriage, brought about by the recent use of intoxicating liquors and that this should bar a conviction for the reason that while so affected he would be without the capacity to enter into a marriage agreement; held, that the same is untenable and while this might make a marriage voidable in a direct civil proceeding, it would be no defense in a criminal case under Article 41, Penal Code; following Colbath v. State, 4 Texas Crim. App., 78. 3.—Same—Rule Stated—Bigamy—Marriage. The law does not contemplate that a bigamous marriage be valid, but the crime is committed by entering into the marriage made void by the marriage relation of one of the parties already existing, and defendant cannot excuse himself upon the ground of mental incapacity by the recent use of intoxicants. Following Clore v. State, 26 Texas Crim. App., 624, and, where he was given the benefit of that phase of the statute as to mitigation of the punishment, there was no reversible error. 4.—Same—Voluntary "Use of Liquor—Practice on Appeal. Where, upon trial of bigamy, the defendant claimed temporary insanity from the recent use of intoxicating liquors and claimed that the evidence presented the issue, whether this was voluntary, but no such issue was raised by the evidence, the same was untenable.
88 Tex. Crim. 268Fitzgerald v. State (1920)
Forfeited Bail Bond—Judgment Nisi—Variance—Name of Parties—Evidence. The name of the parties to the appearance bond is an essential part, of the judgment nisi, and upon an effort to make the judgment final, a variance such as that described in the names of the parties was a matter so material as to render the bond inadmissible in evidence. Following Lowe v. State, 15 Texas, 141, and other cases.
88 Tex. Crim. 269Tolston v. State (1920)
The opinion states the case.
88 Tex. Crim. 271Cano v. State (1920)
robbery—Other Offenses—Bills of Exception. Where, upon trial of robbery, the State introduced testimony as to other criminal acts by the defendant to which defendant objected, but the State on appeal insisted that defendant’s bill of exceptions cannot be considered because filed too late, yet the record showed on appeal that defendant objected to the court’s charge which limited the effect of such testimony and requested a charge that such testimony should not he considered, held, that this properly raises the objection and the testimony being inadmissible, the same was reversible error. Following Stone v. State, 45 Texas Crim. Rep., 93, and other cases.
88 Tex. Crim. 273Sherwood v. State (1920)
1. —Theft of Automobile—Caption of Transcript—Rule Stated. In order to be considered, all the proceedings had in the case upon which conviction was obtained must be filed during the term of court shown in the caption, otherwise the trial was had at a term not authorized by law and the appeal must be dismissed. However, where the defect in the transcript was corrected, the case will be heard upon its merits. 2. —Same—Continuance—First Application—Rule Stated—Alibi—Accomplice. Where, upon trial of theft of an automobile, the defendant pleaded an alibi, and the record on appeal showed that this was his first application for continuance to which the rule of cumulative testimony did not apply, and that the accomplice witness placed himself in the attitude of being the purchaser of what he knew to be stolen property, and of manufacturing testimony and committing perjury, the continuance .should have been granted and failure to do so was reversible error. 3.—Same—Practice on Appeal—Bills of Exception. Where, other matters suggested by bills of exception, with reference to the name of the person injured and the duty of the grand jury in ascertaining his name, etc., will not arise upon another trial, it is not necessary to pass thereon.
88 Tex. Crim. 277Escobedo v. State (1920)
The opinion states the case.
88 Tex. Crim. 281Gibson v. State (1920)
1.—Robbery—Evidence—Bill of Exceptions—Identification of Defendant. Where, upon trial of robbery, the statement in the bill of exceptions objecting to evidence with reference to the identification of defendant, failed to set out any grounds upon which the exception was made, and besides, the question was answered before an objection was made, and no request was made to exclude it thereafter, there was no reversible error; besides, the statements to which he objected were not made in the presence of a certain witness as claimed. 2. —Same—Evidence—Bill of Exceptions—Practice on Appeal. Where, the bill of exceptions concluded without a statement of any specific grounds of exceptions with a general statement that the action of the court in overruling the objections was error, the same cannot be considered on appeal; besides, the bill of exceptions contained a large amount of matter, which was admissible, and further consisted of questions and answers of the witness, which was not in conformity to the rule. Following Dugat v. State, 72 Texas Crim. Rep., 39, and other cases. 3. -—Same—Charge of Court—Objections to Charge—Caption. Where, the paper purporting to be an objection to the court’s charge in its caption was marked “refused” by the court, it indicates that the paper was not properly presented and the consideration thereof was refused. 4. —Same—Objections to Charge—Article 735, Vernon’s C. C. P. Before this court can consider an objection to the court’s charge, under Article 735, Vernon’s C. C. P., the same must have been made in writing and presented to-the trial court before the charge of the court was read to the jury, and the record must affirmatively show such fact. Following Clay v. State, 73 Texas Crim. Rep., 78, and other cases. 5. -—Same—Requested Charges—Practice on Appeal. Where, requested charges were either covered by the court’s main charge or properly refused, there was no reversible error. 6. —Same—Sufficiency of the Evidence—Alibi—Identification. Where, upon trial of robbery, defendant pleaded an alibi but the injured party identified the defendant as one of his assailants, etc., the judgment of conviction is affirmed. 7. —Same—Words and Phrases—Opinion of Court. Where, a statement in the original opinion to the effect that objections to the charge must be made, etc., before the verdict, instead of before the charge was read to the jury, the same is now here corrected. S.—Same—Objections to Charge of Court—Practice on Appeal—Rehearing. Where, appellant in his motion for rehearing insisted that the caption of the paper purporting to set forth such objections was sufficient because it recited that it contained the objections presented before the charge was read, held, that this is not a verification by the trial court of the fact of such presentation, and the same cannot be considered on appeal. • 9.—Same—Bill of Exceptions—Practice on Appeal. Where no ground of objection appears in the bill of exceptions, and there is no reference to any ground of objection in said bill, the same is insufficient for consideration on appeal. 10.—Sa-ie—Bill of Exceptions—Practice on Appeal—Stenographic Report. Where there appeared but one objection set out in the stenographic report of the proceedings therein appearing, and this was made at a time when the question had been asked and answered, and no request appears for any instruction to the jury not to consider the answer, there is nothing to review.
88 Tex. Crim. 288Surges v. State (1920)
The opinion states the case.
88 Tex. Crim. 293Walling v. State (1920)
CS-am,ing—Betting—Insufficiency of the Evidence. Where, upon trial of unlawfully playing and betting at a game played with dice called “craps,” there was no testimony showing that a bet was made at the game, the conviction could not be sustained under Article 557, P. C., following Looper v. State, 56 Texas Crim. Rep., 498, and other cases.
88 Tex. Crim. 294Burks v. State (1920)
The opinion states the case.
88 Tex. Crim. 295Douglas v. State (1920)
1.—Burglary—Domestic Servant—Stock-Room—Actual Breaking. Where, upon trial of burglary, the defendant claimed that he was a domestic servant, or inhabitant of a certain building consisting of six floors, and the evidence showed that the alleged burglarized house was a stock-room on the sixth floor of the building, used and occupied by a dry goods company; that defendant was an employee of said company but did not have free access to said store-room but worked on another floor of the building, and was under the control of the manager of the building, he was not a domestic servant, or inhabitant, of said store-room within the purview of Article 1319, Penal Code, which requires an actual breaking in order to constitute burglary by a domestic servant. Following: Watterhouse v. State, 21 Texas Crim. App., 663, and other cases. 2.—Same—Rehearing—Domestic Servant, Definition of. Where, appellant in his motion for rehearing insisted that under the testimony of a certain witness who had charge of the stock-room burglarized, he was a domestic servant, but this testimony, taken in connection with other parts of the record made it plain that defendant’s work and duties lay in other parts of the building, and that his only occasion for going to said stock-room was when said witness in charge was there, and then only to ask and receive articles for use in that part of the building where lay defendant’s work, he was not a domestic servant under the law. Distinguishing Connor v. State, 85 Texas Crim. Rep., 98, and other cases.
88 Tex. Crim. 300Kirkpatrick v. State (1920)
Sunday Law—Moving Picture—Former Precedent. Where, upon trial of a violation of Article 302, Penal Code, by exhibiting a moving picture show on Sunday, defendant was convicted and appealed to this court, the case must be affirmed according to former precedent. Following Ex Parte Lingenfelder, 64 Texas Crim. Rep., 30, and other cases.
88 Tex. Crim. 301Grace v. State (1920)
1. —Rape—Death Penalty—Evidence—Bloody Clothes. Where, upon trial of rape and a conviction of that offense, inflicting the death penalty, defendant pleaded an alibi, and there was evidence by the State, uncontroverted, that the hand of prosecutrix was cut by a knife by her assailant, and that she bled profusely on the bed clothes and on her night gown, etc., it was reversible error to permit the introduction of the bloody clothing, pillow-case, night gown, etc., as it could serve to illustrate no fact connected with the transaction. Following Christian v. State, 46 Texas Crim. Rep., 50, and other cases. , 2. —Same—Bloody Clothes—Evidence—Rule Stated. It has been held, where bloody clothes illustrate some question in the case, or tends to solve it, such testimony is admissible; but, where it does not tend to solve an issue in the case, it would not be admissible. Following Cole v. State, 45 Texas Crim. Rep., 225, and other cases. 3. —Same—Case Stated—Reversible Error—Race-Prejudice, The exhibition of these bloody clothes in a trial of rape by a negro upon a white woman, doubtless did have a prejudicial effect against him, and the same is reversible error. 4. —Same—Rehearing—Stating Facts in Opinion. Where, upon motion for rehearing by the State, complaining of an incorrect statement of facts in the opinion, as not found in the record, it was found that while the language in the opinion did not quote exactly that of the witnesses, but was substantially correct, such criticism is without merit, and there is no reversible error.
88 Tex. Crim. 304Cundiff v. State (1920)
1.—Assault to Murder—Suspended Sentence—Bill of Exceptions—General Reputation. Where, upon trial of assault with intent to murder, a bill of exceptions was taken to the refusal of the court to permit the defendant to show by his own testimony that his reputation for truth and veracity and that of a peaceable and law-abiding man was good, but in the absence of a statement of facts this court does not know what facts were proved by other witnesses, or what issues arose in the case; besides, there was no proof that the defendant had not previously been convicted of a felony, and the excluded testimony would have been of no importance. 2.—Same—Evidence—Suspended Sentence—Honorable Discharge—Punishment. Where, upon trial of assault with intent to commit murder, the defendant’s punishment was assessed at ten years imprisonment in the penitentiary, his plea for suspended sentence could not operate, and the exclusion, therefore, of testimony that he had been in the war and honorably discharged would have been of no avail; besides, the lack of proof that he had not been previously convicted of felony made his plea of suspended sentence unavailable,. and in the absence of a statement of facts, the conviction must be sustained.
88 Tex. Crim. 306Ex Parte Ford (1920)
From El Paso County. Original application for writ of habeas corpus, asking release from arrest under conviction of a sale of intoxicating liquors.
88 Tex. Crim. 307Anderson v. State (1920)
The opinion states the case.
88 Tex. Crim. 309Ex Parte Perkins (1920)
The opinion states the case.
88 Tex. Crim. 309Williams v. State (1920)Affirmed
Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Wesley Williams was convicted of burglary, and he appeals.
88 Tex. Crim. 310Begonia v. State (1920)
Forgery—Motion for New Trial—Statement of Facts—Practice on Appeal. Where, upon appeal from a conviction of forgery, the motion for new trial mentioned bills of exception as having been taken during the trial, but the record did not contain the bills of exception, the matters cannot be reviewed in the absence of these and a statement of facts, and the judgment below is affirmed.
88 Tex. Crim. 311Hood v. State (1920)
Assault to Murder—Statement of Facts—Practice on Appeal. In the absence of the statement of facts, the contention that the judgment is contrary to the law and evidence, etc., the same cannot be revised on appeal and the judgment must be affirmed. .
88 Tex. Crim. 311Nicholson v. State (1920)
Tried below before the Honorable J. R. Warren. Appeal from a-conviction of aggravated assault; penalty, a fine of $100 and thirty days confinement in the county jail.
88 Tex. Crim. 312Kennedy v. State (1920)
The opinion states the case.
88 Tex. Crim. 313Davis v. State (1920)
The opinion states the case.
88 Tex. Crim. 314Watson v. State (1920)
The opinion states the case.
88 Tex. Crim. 314Pior v. State (1920)
Forgery—Final Sentence—Practice on Appeal. Where, upon appeal from a conviction of forgery, the record disclosed that there is no final sentence, the appeal must be dismissed.
88 Tex. Crim. 315Ex Parte Beauchamp (1920)
The opinion states the case.
88 Tex. Crim. 316Lowe v. State (1920)
Tried below before the Honorable Covey C. Thomas. Appeal from a conviction of murder; penalty, imprisonment in the penitentiary for life. The opinion states the case.
88 Tex. Crim. 316Ex Parte Steen (1920)
Habeas Corpus—Practice on Appeal. Where, upon appeal from a habeas corpus proceeding, refusing bail, the evidence entitled relator to bail the same is granted without discussing the evidence.
88 Tex. Crim. 333Estrada v. State (1920)
1. —Misdemeanor Theft—Question of Fact—Practice on Appeal. The credibility of witnesses and the weight to be given to their testimony is a question of fact for the jury. 2. —Same—Name of Accused—Motion in Arrest of Judgment—Variance—Idem Scnan •. Where, the names as set out in the complaint and information were in Spanish, one being spelled Esteada and the others Estreada, and Estrada, and it was not shown how they were sounded, or how they were pronounced, they will be considered as idem sonans. Where, the name originally is properly set out and afterwards referred to as the said party, the variance is not important. 3. —Same—Variance—Filing Complaint—Date of Offense. Where, the complaint and information alleged the offense to have been committed on the eleventh of February, 1920, and the evidence showed that the transaction occurred on the 9th of March of that year, the variance is fatal and the conviction cannot be sustained.
88 Tex. Crim. 335Maguire v. State (1921)
1. —Gaming—Statement of Facts—Transcript—Practice on Appeal. Where, the so-called statement of facts in the record appears to be a narrative of practically everything that occurred during the trial, but no testimony is set out as given by any witness either for the State or for the appellant, the same could not be considered on appeal. 2. —Same—Requested Charge—Objections to Evidence. Where, the requested charge was in the nature of an objection to the evidence, the same was properly refused by the trial court. 3. —Same—Evidence—Bill of Exceptions—Requested Charge. Where, the requested charge was in the nature of a bill of exceptions to the evidence, the same was properly refused by the trial court. 4. —Same—Evidence—Bill of Exceptions—Practice in Trial Court. Where, appellant objected to certain testimony by the defendant because he had not been properly warned, but the bill of exceptions failed to disclose whether the defendant was under arrest or restraint, and the qualifications of the trial judge to said bill of exceptions showed to the contrary, there was no reversible error. 5. —Same—Jury and Jury Law—Bill of Exceptions—Challenges. Where, the bill of exceptions as qualified by the trial court showed that while the juror stated that he had at one time formal an impression as to the case, yet if selected as a juror he could lay same aside and try and decide the case according to the law and the evidence, there was no reversible error. 6. —Same—Sufficiency of the Evidence—Statement of Facts. A complaint that the evidence is insufficient to sustain the conviction cannot be considered in the absence of a statement of facts.
88 Tex. Crim. 337Wilson v. State (1921)
Murder—Sufficiency of the Evidence—Circumstantial Evidence—Alibi. Where, upon trial of murder and a conviction of that offense, the State relied upon circumstantial evidence alone, hut the jury were clearly justified in reaching the conclhsion that the defendant was guilty, although he had pleaded an alibi, tested hy the rules governing circumstantial evidence, there was no reversible error. Following Parish v. State, 85 Texas Crim. Rep., 81.
88 Tex. Crim. 340Corzine v. State (1921)
1. —Murder—Witness—Convict—Cross-examination—Withdrawal of Evidence. On trial of murder and a conviction of manslaughter, the trial court should have sustained the motion of defendant to withdraw from the jury the testimony of the principal State’s witness, the same being materially injurious to defendant, and said witness on cross-examination admitting that he had served a term in the penitentiary for cattle stealing, and had not been pardoned, he was, therefore, an incompetent witness. 2. —Same—Rule Stated—Statute Construed—Convict—Incompetent Witness. One may be asked on cross-examination if he has not been convicted of a felony, the purpose of such question being to discover the incompetence of such witness, and if the opposing party makes no objection and the witness by his answer discloses his conviction and want of pardon, this may be made proper grounds of a motion to exclude all the testimony of said witness, under Article 788, C. C. P. Following Wines v. State, 66 S. W. Rep., 788. Qualifying Batson v. State, 36 Texas Crim. Rep., 606. 3. —Same—Convict—Obj ection—Rule Stated—Pardon—Limitation. If the State was not willing for the incompetence of witness to be thus shown, it should have objected in limine to such character of testimony as not being the best evidence, but the ground of the objection being that same was too remote was untenable, as there is "no limitation upon the incompetence of a witness arising from conviction of felony, and a pardon alone can remove it. Following Price v. State, 66 Texas Crim. Rep., 400.
88 Tex. Crim. 342Franklin v. State (1921)
1. —Selling Intoxicating Liquors—Purchaser—Accomplice—Statutes Construed. Article 602, Penal Code, as to accomplice’s testimony, applies to local option prohibition, but not to the so-called Dean law for state-wide prohibition enforcing the amended section of the Constitution, which fails to embrace a provision exempting the purchaser of intoxicating liquors unlawfully sold, from the operation of the general rule defining accomplice testimony. Following Phillips v. State, 17 Texas Crim. App., 169, and other cases. 2. —Same—Principals—Accomplices—Statute Construed. One who buys intoxicating liquors, knowing that they are s'old in violation of the law, is particeps oriminis within the meaning of the statutes, Chapters, 1, 2, and 3, Title III, of the Penal Code, defining principals, accomplices and accessories. 3. —Same—Accomplice—Corroboration—Purchaser—Statutes Construed. Section 31, Chapter 78, Acts of the Thirty-Sixth Legislature, Second Called Session, declares that it shall be unlawful for any person to purchase for himself or another intoxicating liquors sold or bartered in violation of said Act, and it would seem, therefore, that even if the purchaser was not a ■principal offender with the seller, his testimony would, by reason of the section named, require corroboration. Following Johnson v. State, 58 Texas Crim. Rep., 244, and other cases. 4. —Same—Accomplice—Corroboration—Statutes Construed. Article 801, C. C. P., requires the corroboration of accomplice testimony, and Article 602, Penal Code, abrogates this requirement in local option cases, and which is not contained in the so-called Dean Law, and Section 40, of said Dean Law, although giving immunity from punishment, and compelling all offenders to testify, does not obviate the necessity of requiring corroboration. 5. —Same—Indictment—Federal Law-State Law—Conflict—Precedent. Appellant’s motion to quash the indictment, on the ground of conflict between the Volstead Act and the Dean Act, relates to a matter upon which this court has expressed an opinion adverse to said contention. Following Ex Parte Gilmore, recently decided. ,
88 Tex. Crim. 345Franklin v. State (1921)
Selling Intoxicating Liquors—State Wide Prohibition—Accomplice—Purchaser. Under the so-called Dean Law, of the Thirty-Sixth Legislature, Sections 2, 31, and 36, the witnesses for the State would be particeps criminis, and a charge of the court upon accomplice testimony was necessary and the court’s failure to do so is reversible error.
88 Tex. Crim. 346Welch v. State (1921)
The opinion states the case.
88 Tex. Crim. 349Sopsay v. State (1921)
Burglary—Sentence—Practice on Appeal. Where, the transcript failed to show sentence, this court has no jurisdiction and the appeal is dismissed. Following Thomas v. State, 87 Texas Crim. Rep., 153.
88 Tex. Crim. 349Flores v. State (1921)
The opinion states the case.
88 Tex. Crim. 354Harper v. State (1921)
1.—Theft of Automobile—Unknown Owner—Receiving Stolen Property—Grand Jury. Where upon trial of receiving a stolen automobile, knowing it to have been stolen, the jury finding defendant not guilty of the theft thereof, the indictment alleged that the defendant received said automobile from some party to the grand jurors unknown, and the evidence showed that the grand jurors knew at the time they returned the indictment from whom the defendant received the ear, the conviction could not be sustained. 2.—Same—Exculpatory Evidence—Charge of Court. . Where upon trial of receiving stolen property, the State put in evidence the statements of defendant showing that he bought the car from a certain party, naming him, and that he paid him for it, and that the acknowledged bill of sale was admitted in evidence, it devolved upon the State to show that this theory was false and the jury should have been so instructed.
88 Tex. Crim. 358Collins v. State (1921)
The opinion states the case.
88 Tex. Crim. 360Godby v. State (1920)
1. —Perjury—Recognizance—Practice on Appeal. Where the recognizance failed to state the offense for which the appellant was convicted or the punishment assessed and was otherwise defective, the appeal must be dismissed, following Watson v. State, 62 Texas Crim. Rep., 620, and other cases; however, the proper recognizance having been filed thereafter, the case is considered on its merits. 2. —Same—Credible Witness—Corroboration—Statutes Construed—Accomplice. Under Article 906, C. O. P., it is required that the falsity of the statement as the basis of the charge of perjury be sworn to by two credible witnesses or by one credible witness corroborated strongly by other evidence as to such falsity, and an accomplice is not a credible person under the decisions of this court. Following Conant v. State, 51 Texas Crim. Rep., 610, and other cases. 3. —Same—Case Stated—Insufficiency of the Evidence. Where upon trial .of perjury, the main State’s witness was shown to have been an accomplice, and could not be considered a credible witness, and besides had a bad reputation for truth and veracity, this court is unable to bring itself to believe that there was before the trial court in the instant case, the testimony of one such credible witness to the falsity of the alleged perjured statement of defendant as is required by law, and the judgment must he reversed and the cause remanded.
88 Tex. Crim. 364Reid v. State (1920)
1. —Child Desertion—Evidence—No Reversible Error. Where upon trial of child desertion, the State’s witness testified that the children of defendant were left with him, and that the defendant failing to provide for them they were taken to the Salvation Army Orphanage, there was no reversible error on that ground, nor was his bill of exceptions well taken because said witness was permitted to testify that after defendant was arrested he gave1 bond. 2. —Same—Sufficiency of the Evidence. Where, upon trial of child desertion, the evidence sustained the conviction, there was no reversible error. 3. —Same—Rehearing—Theory of Defense. Where, appellant on motion for rehearing urged that the record on appeal showed that he had made an arrangement with another to care for his children for a monthly stipend,' and that even tho he failed to pay for such care as he had agreed to, yet that if the person who kept the said children did not permit them to suffer for any needful things of life, that he was not guilty of the offense of abandoning his said children, the same Was untenable, and shows no such ground of good faith or inability to care for his children as would constitute a legal defense.
88 Tex. Crim. 367Powell v. State (1921)
The opinion states the case.
88 Tex. Crim. 368Barton v. State (1921)
The opinion states the case.
88 Tex. Crim. 372Wade v. State (1920)
The opinion states the case.
88 Tex. Crim. 377Huey v. State (1920)
1.—Murder—Manslaughter—Former Trial—Former Jeopardy—Statutes Construed. Where, upon a conviction of murder under an indictment for which the defendant had been tried before and convicted of manslaughter, appealed and was granted a new hearing because the jury had not been sworn as required by law, and pleaded former jeopardy on the ground that a conviction of the lesser degree operated as an acquittal of the higher degree, under Article 782, C. C. ,P., held, that under Article 572, C. C. P., this was untenable, as he was not tried by a jury, and the judgment rendered on the former trial is not available as a bar to the present prosecution, following Kepner v. United States, 195 U. S. 100, and other cases. 2.—Same—Rule Stated—Verdict—Jury—Statutes Construed. The law has declared that the jury must be empanelled and sworn, and the courts have held that unless the verdict is rendered by a jury empanelled and sworn, it is not in law a verdict, and jeopardy does not attach in a felony case. Following Howard v. State, 80 Texas Crim. Rep., 588, and other cases. 3.—Same—Case Stated—Former Jeopardy—Verdict—Jurisdiction. Where, appellant on a former appeal invoked the decision of this court upon his contention that the judgment of the court below convicting him of manslaughter was void because the jury were not sworn as required by law, which contention this court sustained, he cannot maintain his present contention that the judgment convicting him of manslaughter was based upon the verdict of a jury which entitled him to a plea of former jeopardy, under Article 572, C. C. P. •
88 Tex. Crim. 380Banks v. State (1921)
Leaving out formal allegations, the indictment alleged that Ves Banks, on of about the 7the day of August, 1920, and anterior to the presentment of this indictment in the County of Kaufman, and State of Texas, did then and there unlawfully and not for medicinal, mechanical, scientific, or sacramental purposes, possess and have in his possession equipment for making spirituous, vinous, and intoxicating liquor and malt liquors and medicated bitters capable of producing…
88 Tex. Crim. 382Perea v. State (1920)
Tried below before the Hon. W. D. Howe. Appeal from a conviction of murder; penalty, death. The opinion states the case.
88 Tex. Crim. 389Walker v. State (1920)
Tried below before the Honorable -P. A. Turner. Appeal from a conviction of murder; penalty, fifteen years imprisonment in the penitentiary. The opinion states the case.
88 Tex. Crim. 402Williams v. State (1921)
Intoxicating Liquors—Manufacture—Equipment—Insufficiency of the Evidence. Where, upon trial of a violation of Article I, Chapter 78, Acts of the Thirty-sixth Legislature, Second Called Session, hy the possession of equipment for making intoxicating liquors for unlawful purposes, the evidence was insufficient to sustain the conviction, the judgment must be reversed and the cause remanded.
88 Tex. Crim. 403Buddy v. State (1921)
The opinion states the case.
88 Tex. Crim. 405Mickle v. State (1921)
1. —Murder—Death Penalty—Self-defense—Provoking Difficulty. If the conduct of the deceased responding to defendant’s words and acts amounted to an assault upon the defendant, while he was standing on the car, and he, as described by the State’s witness, then struck the conductor, the deceased, with a knife, the charge of self-defense, if given, should have been qualified by a charge on the law of provoking the difficulty. 2. —Same—Manslaughter—Charge of Court—Adequate Cause—Statutes Construed. Our statute on the law of manslaughter categorically names certain things which in law constitute adequate cause, to reduce a homicide to the grade of manslaughter; and the first of these is an assault and-battery by the deceased causing pain or bloodshed, and the jury must therefore be charged in such case that such assault and battery would constitute adequate cause, and to leave this question to the jury is reversible error. Following Hill v. State, 8 Texas Crim. App., 143, and other cases. 3. —Same—Charge of Court—Adequate Cause—Words and Phrases. Where, upon trial of murder, the evidence raised the issue of manslaughter from an assault and battery by the deceased causing pain or bloodshed, and the court qualified this statutory adequate cause by the words “such as was reasonably calculated to produce passion,” was reversible error, and the absence of specific testimony that the defendant was caused pain by the assault, did not absolve the court from the duty of giving a charge on adequate cause as defined in the statutes. Following Danforth v. State, 44 Texas Crim. Rep., 114, and other cases. 4.—Same—Case Stated—Excessive Force—Assault and Battery. Where, upon trial of murder, the evidence showed that appellant was thrown off the street car by deceased while it was moving in a manner that caused the defendant to fall on the street on his back, this,- if believed by the jury, constituted an assault and battery, and even if the deceased was not acting from personal resentment, but was moved by a desire to protect the property of his employer, etc., the force he used, was excessive and constituted an assault and battery, and a charge on statutory adequate cause was demanded. Following Skidmore v. State, 2 Texas Grim. App., 2, and other cases. 5.—Same—Provoking Difficulty—Charge of Court—Manslaughter. Where the instant case is pervaded by the question whether the defendant’s conduct was reasonably calculated to provoke the contest and was done for that purpose, with the intention of killing or seriously injurying the deceased, the assault by the deceased producing pain or bloodshed would not suffice to reduce the offense to the degree of manslaughter, and the jury should he so instructed.
88 Tex. Crim. 411Frazier v. State (1921)
1.—Theft of Hog—Certiorari—Transcript. Upon application of appellant to perfect the record for a writ of certiorari, the same is granted. .2.—Same—Insufficiency of the Evidence—Possession—Ownership. Where, upon trial of theft of a hog, there was nothing in the record on appeal showing any claim of ownership or possession of the alleged stolen property by the defendant, the conviction could not he sustained. 3.—Same—Rule Stated—Recent Possession. Where, upon trial of theft of a hog, the testimony for the State showed that when witness found the alleged property there were four people present, none of whom claimed the same or had the same in exclusive possession, one of whom was the accused, the conviction' could not be sustained.
88 Tex. Crim. 414Franklin v. State (1921)
The opinion states the case.
88 Tex. Crim. 415Bell Crawford v. State (1921)
Theft—Complaint—Information—Motion in Arrest of Judgment. Where, the motion in arrest of judgment was made because the complaint did not begin with the Constitutional requirement:, “In the name and by the authority of the State of Texas,” but the information contained that necessary allegation, there was no reversible error in overruling defendant’s motion in arrest of judgment. Following Treadway v. State, 61 Texas Crim. Rep., 546, and other cases.
88 Tex. Crim. 416Suber v. State (1921)
Burglary—Continuance—Want of Diligence—Cumulative Testimony. ' Where, upon trial of burglary, defendant’s first application of continuance, the question of cumulative testimony did not enter into the question; yet in the light of the testimony in the record on appeal this court is of the opinion that while this rule does not apply, still in view of all the testimony and the number of witnesses who testified to an alibi of defendant, there was no reversible error in overruling defendant’s application for continuance for this class of testimony; besides, there was a total want of diligence to procure the attendance of the absent witnesses.
88 Tex. Crim. 418Osby v. State (1921)
1. —Burglary—Charge of Court—Breaking—Practice on Appeal. Where, upon trial of burglary, the defendant contended that there was no testimony calling for the court’s charge on breaking, giving the statutory definition thereof, but the record showed that there was evidence of such breaking, this supported the charge and there was no reversible error. 2. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence was sufficient to sustain the conviction of that offense, under a proper charge of the court, there was no reversible error.
88 Tex. Crim. 419Mims v. State (1921)
Murder—Manslaughter—Newly Discovered Testimony—Motion for New Trial. Where, upon appeal from a conviction of manslaughter, the motion for new trial set out newly discovered testimony, but it appeared from the record that this testimony was not probably true in the light of all the facts, and taken in its most favorable light to appellant it would be but cumulative, there was no reversible error.
88 Tex. Crim. 421Armstrong v. State (1921)
The opinion states the case.
88 Tex. Crim. 422Hand v. State (1920)
1. —Assault to Rape—Aggravated Assault—Minority—Adult Male. Where, upon trial of assault to rape, defendant was convicted of an aggravated assault under sub-division 6, of Article 1022, P. C., under a proper charge of the court, the contention that defendant was under twenty-one years of age at the time and therefore not an adult male person was untenable, and there was no reversible error. 2. —Same—Statutes Construed—Degree of Offense—Indictment. Under Article 771, C. C. P„ the jury may find the defendant guilty of any degree inferior to that charged in the indictment or information, and under Article 772, C. C. P., an assault with intent to commit any felony includes all assaults of an inferior degree. Following Davis v. State, 20 Texas Crim. App., 302, and other cases. 3. —Same—Minority—Aggravated Assault—Fondling Female Against her Consent—Rule Stated. Where the prosecution for aggravated assault is brought under Subdivision 6, Article 1022, P. C., where the means used in the infliction of the injury tended to disgrace the female assaulted, and the evidence shows an unwarranted liberty with the person of the female, etc., calculated to arouse feelings of shame, mortification, etc., the conviction for aggravated assault is sustained, and where in the instant case of an assault with intent to commit rape, the evidence showed the physical handling and contact by defendant of the female on her privates against her consent, the charge of the court under this sub-division of the statute was proper and the conviction is sustained. Following Stockton v. State, 80 Texas Crim. Rep., 521, and other cases, and defendant’s minority would be no defense. Following George v. State, 11 Texas Crim. App., 95, and other cases. 4. —Same—Simple Assault—Charge of Court—Feeling of Shame—Minority. Where, upon trial of assault to rape and conviction of aggravated assault, the appellant contended upon appeal that the evidence in the court below failed to show that the treatment of the alleged injured party by appellant produced any feeling of constraint, shame, or other humiliating emotions of the mind, but the evidence amply showed to the contrary, the conviction is sustained, although defendant was a minor at the time, and the charge on simple assault was correctly refused; besides, the latter was defective. 5.—Same—Aggravated Assault—Disagreeable Emotions of the Mind—Simple Assault. Where, there was nothing in the evidence to suggest that defendant believed or had any right to believe that he might treat the assaulted female by fondling her person against her consent, there was no error in refusing a requested charge to the effect that if defendant did not intend to injure proseputrix, etc., and had good reason to believe that his advances were not objected to, etc., the same would only be simple assault. 6.—Same—Fundamental Error—Charge of Court—Indecent Familiarity. Where, upon trial of assault to rape and a conviction of aggravated assault on the ground of violent and indecent familiarity with the person of the prosecutrix against her will with intent to have carnal intercourse with her, the court submitted this cause of aggravation, which was applicable to the facts in the case, there was no reversible error. Following George v. State, 11 Texas Crim. App., 95, and other cases. 7. —Same—Rehearing—Aggravated Assault—Indecent Familiarity—Rule Stated —Minority. Irrespective of the question of minority, a male person on trial under an indictment for assault with intent to rape may be convicted of aggravated assault upon proof of indecent familiarity with the person of a female against her will and without her consent; and where, in the instant case, such was the proceeding and the facts the conviction of aggravated assault is sustained, and there is no reversible error. Following Slawson v. State, 39 Texas Crim. Rep., 176, and other cases. Distinguishing Ellers v. State, 55 S. W. Rep., 813; Davis v. State, 76 S. W. Rep., 466. 8. —Same—Statutes Construed—Noscitur A Sociis—Rule Stated—Words and Phrases. The decisions of our court, that a male person who violently and indecently fondles the privates of a female against her will and without her consent is guilty of aggravated assault under the terms of Sub-division 6, of Article 1022, Penal Code, irrespective of the age of the accused, is not open to the attack of the rule of construction known as noscitur a sooiis. Following Slawson v. State, supra. 9. —Same—Simple Assault—Charge of Court. Where, upon trial of assault to rape and a conviction of aggravated assault, there appeared no sort of support in the evidence of any theory that defendant believed that his unwarranted conduct was acceptable to the prosecutrix, the issue of simple assault is not in the case, and there was no error in failing to give a charge on simple assault. 10. —Same—Charge of Court—Bill of Exceptions—Requested Charge—Rehearing. Appellants contention upon rehearing, that the court’s definition of aggravated assault in his charge was erroneous is not borne out by the record besides, there was no exception to said definition as given in the charge at the time, and no special instruction asked. Following Willingham v. State, 62 Texas Crim. Rep., 955, and other cases.
88 Tex. Crim. 432Bolton v. State (1921)
Burglary—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, complaints to the failure of the court to charge on the law of accomplice testimony and circumstantial evidence cannot be considered on appeal.
88 Tex. Crim. 433Spence v. State (1921)
88 Tex. Crim. 433Armstrong v. State (1921)
The opinion states the case.
88 Tex. Crim. 433Ex Parte Spence (1921)
The opinion states the case.
88 Tex. Crim. 435Ex Parte Lebo (1920)
The opinion states the case.
88 Tex. Crim. 437Cline v. State (1921)
Wilfully Turning Out Livestock—Election—Insufficiency of Evidence—Judicial Knowledge. The courts do not take judicial knowledge of the holding and results of local option elections in a given territory, and where there was a want of proof that the livestock law, under Article 1241, Penal Code, making it an offense to wilfully turn out, etc., certain livestock and keep the same running at large, was legally adopted in said territory, the conviction could not be sustained. Following Hill v. State, 58 Texas Crim. Rep., 79, and other cases.
88 Tex. Crim. 438Hicks v. State (1920)
The opinion states the case.
88 Tex. Crim. 444Reeves v. State (1921)
1. —Intoxicating liquors—Transporting—Receiving—Constitutional law. The power of the Legislature of this State to make a given act penal is not limited to the permission of the Constitution, and exists in all cases except where specifically forbidden by the terms of that instrument; and under the amended section, 20, Article 16, of the Constitution, the manufacture, sale, barter, and exchange of intoxicants in this State, except for certain purposes, is forbidden, the Legislature was authorized to make such acts penal, as provided in the so-called “Dean Law.” 2. —Same—Transporting, Receiving, and Possessing Intoxicating liquors. No argument is needed to make it clear that a law forbidding the transporting, receiving, or possession of intoxicating liquor, is an aid to and in furtherance of the prohibition of illegal sale and manufacture of such liquor. And likewise, that a law forbidding the sale of beverages containing any alcoholic content would have the same tendency. 3. —Same—Per Cent of Alcoholic Content—Constitutional Law. There is nothing in our present Constitution which forbids the Legislature from making penal the sale of liquor for beverage purposes containing, less than one per cent alcoholic content, nor forbidding them to make illegal the transportation, possession, or delivery of such liquor. 4. —Same—Indictment—Negative Allegations—Statutes Construed. Where, in a prosecution under what is known as the Dean Law, Acts, Second Called Session Thirty-sixth Legislature, Page 228, the indictment failed to negative the exception set out in the enacting part of the law, that is, for medicinal, mechanical, scientific, or sacramental purposes, as set out in the first section of said act, the same was bad on motion to quash, and the. prosecution must be dismissed.
88 Tex. Crim. 447Escue v. State (1921)
1. —Swindling—Practice on Appeal—Verdict—Indictment. Where, upon trial of swindling, the indictment contained two counts, and there was a general verdict of guilty, such verdict would apply to either of said counts, and if one of the same should be defective, said verdict would be upheld under the other count. 2. —Same—Indictment—Motion to Quash—Names of Injured Parties. In an indictment for swindling, it was not necessary to allege that the alleged drafts were executed by the alleged injured parties, as said drafts were set out in haec verba in the indictment, the value of same being also alleged, and the proof sustaining such allegations, there was no reversible error. S.—Same—Evidence—Drafts—Description. Upon trial of swindling, alleging that the -defendant fraudulently obtained certain drafts set out in the indictment, there was no error in admitting said drafts in evidence. 4.—Same—Evidence—Mortgage—Description of Property. Upon trial of swindling, there was no error in admitting in evidence the mortgage given by the defendant on the property described, and an objection upon the ground that the description of the property in the mortgage was not suffici?ntly definite to identify the particular animals therein described, was properly overruled. B.—Same—Statement of Facts—Insanity. In the absence of a statement of facts, a contention that the verdict was contrary to the evidence because the same showed defendant’s insanity cannot be considered. 6. —Same—Requested Charges—Evidence—Practice on Appeal. In the absence of a statement of facts assignments of error, based upon the refusal of special charges and the admission of certain evidence, cannot be considered. 7. —Same—Fundamental Error—Mortgage—Note—Dates. Where appellant presents as fundamental error the fact that in the mortgage set out in the indictment a note is mentioned, as secured by said mortgage, which note is 'described as due November 20, 1920, and further alleged after setting out said mortgage containing the note just mentioned, that the appellant executed a note which is also set out in the indictment, and the due date of which was November 20, 1919, this did not constitute fundamental error, under the facts in the instant case as would justify reversal. 8. —Same—Rehearing—Indictment—Written Instrument. It is not necessary for a written instrument to be such as would stand the scrutiny of the courts, in order to make it sufficient as the pretense upon which one is induced to part with his property in a swindling case. Following May v. State, 17 Texas Crim. App., 216, and other cases. 9. —Same—Insanity—Conviction—Practice on Appeal. A copy of the judgment of the County Court, entered since this appeal, adjudging appellant insane with the request that this Court withholds its. mandate, cannot he considered, besides, the law provides that upon sufficient showing the judgment in the lower court will be suspended and proper disposition made of the case.
88 Tex. Crim. 451Ward v. State (1921)
Theft and Embezzlement—Felony—Practice on Appeal—Death of Appellant. Where it was made to appear to this Court, by the written affidavit of the State’s attorney, that since the apneal was prosecuted the appellant died, the appeal is abated and hereby dismissed.
88 Tex. Crim. 452Lasater v. State (1920)
1.—Murder—Manslaughter—Argument of Counsel—Practice in Trial Court". While the argument of State’s counsel, which was a sort of an apostrophe to the various members of the family of deceased who were present, and contributing to the sympathetic effect of such speech, by their conduct, was objectionable, yet, in the absence of a requested charge to withdraw the same and no apparent injury to the defendant, there was no reversible error. 2. —Same—Conduct of Prosecuting Attorney—Practice in Trial Court. Where, defendant complained that the prosecuting attorney was permitted to hold in his hand in close proximity to the jury certain papers, stated to be those pertaining to divorce cases against the defendant’s former wives, etc., hnd to ask such questions relative thereto as to injure defendant, but the bill of exceptions was qualified by the trial court, that the jury was withdrawn and the objections sustained, and said papers were no longer so held in view of the jury, there- was no reversible error. 3. —Same—Reputation of Defendant For Truth and Veracity and Peaceful Conduct—Practice in Trial Court—Specific Instances of Conduct. When defendant puts his reputation in issue his witnesses may be asked, affecting their knowledge, if they had not heard of specific instances of his misconduct, which, if true, would affect such reputation, although such conduct was against his relatives, including his wife and child, etc. 4. —Same—General Reputation—Rule Stated—Rebuttal. If the trial court be apprised, before evidence by the State in rebuttal to the testimony of the defendant as to good reputation is offered, of its erroneous character, and there be then entire agreement between the State and the defense as to same as to its objectionable character, the court should not permit it in evidence. Following Bullington v. State, 78 Texas Crim. Rep., 187, yet, when such reputation extends over the entire life of defendant, rebuttal evidence which reaches back over some seventeen years before the trial would not be too remote. 5. —Same—Rehearing—Reputation of Defendant—Conviction for Felony— Moral Turpitude.- • We understand the rule laid down in the books to be that a witness can be compelled to answer that he has been convicted, or indicted for a crime imputing moral turpitude, if such is a fact, or the indictment, .or record of conviction can be introduced to attack his credibility, and a witness can be attacked as well by one method as the other. Following Fannin v. State, 51 Texas Crim. Rep., 41. 6. —Same—General Reputation—Moral Turpitude—Rule Stated—Reversible Error. Where the State’s witness was asked, “Did you ever arrest defendant for a felony?” and answered, “Yes, sir,” and was -then asked: “What was the felony?” and answered, “Seduction,” this showing that a charge had been legally made against defendant for such felony as would make the testimony admissible, and was not sufficient, as it did not appear that an indictment was returned, or even a complaint made, or that the arrest was by virtue of a capias or warrant, and therefore the same was inadmissible and reversible error. ■ 7.—Same—Evidence—Former Marriages—Irrelevant Testimony. Upon trial of murder and a conviction of manslaughter, it was material error to allow the State to place before the jury facts relative to the marriages of defendant and that he had been sued by each of his wives for a divorce, such facts not being related to the transaction involving the homicide. Following Hightower v. State, 53 Texas Crim. Rep., 487, and other cases.
88 Tex. Crim. 457Powers v. State (1921)
The opinion states the case.
88 Tex. Crim. 462Smith v. State (1921)
The opinion states the case.
88 Tex. Crim. 465Stanton v. State (1921)
The opinion states the case.
88 Tex. Crim. 466Westbrook v. State (1921)
The opinion states the case.
88 Tex. Crim. 468Corzine v. State (1921)Judgment reversed
P. Bolding, Judge. Joe Corzine was convicted of offering for sale and selling an article of food, consisting of meat of a hog that died otherwise than by slaughter, and he appeals.
88 Tex. Crim. 468Carzine v. State (1921)
The opinion states the case.
88 Tex. Crim. 470Taylor v. State (1918)
The opinion states the case.
88 Tex. Crim. 485Gibbs v. State (1921)
1. —Assault to Rape—Female Under Age—Other Transactions. Upon trial of assault with intent to rape upon a female under the age of consent, there was no error in admitting testimony of a meeting between defendant and prosecutrix on the night preceding that of the alleged assault, as this tended to show the relations of these parties leading up to the occasion of the alleged assault. 2. —Same—Evidence—Bills of Exception—Practice on Appeal. Where the bill of exceptions consisted of questions and answers, and there appeared no place therein where the trial court failed to sustain any objection made, but various places appeared therein where objection was made after a question was asked and answered, but no request appeared to withdraw these matters or to instruct the jury properly thereon, there was no reversible error. 3. —Same—Requested Charge—Intent to Commit Rape. Where, upon trial of assault with intent to commit rape, the defendant asked a requested charge, which if given could only have created confusion in the minds of the jury upon the question of assault with intent to rape, the same was properly refused, and there was no reversible error. 4. —Same—Objections to Court’s Charge—Practice in Trial Court. Where the record contained what purported to be exceptions to the court’s charge, but same were marked by the trial court “overruled,” and there did not appear any bill of exceptions showing that such objections to the court’s charge were properly presented to the trial court in time, there was no reversible error. Following Gibson v. State, 88 Texas Crim. Rep., 281. 5. —Same—Sufficiency of the Evidence. Where, upon trial of assault with intent to rape, the evidence sufficiently showed an assault by the defendant upon the prosecutrix with the then intent to have carnal knowledge of her, the conviction is sustained.
88 Tex. Crim. 488Robert v. State (1920)
1. —Intoxicating Liquors—Recognizance. Where, upon an appeal from a violation of the so-called “Dean Law,” the recognizance was insufficient to confer the jurisdiction upon this Court, the same is dismissed, however, a new recognizance having been filed, which is in proper form, the appeal is re-instated. 2. —Same—Constitutional Law—Federal and State Legislation. The constitutionality of the so-called “Dean Prohibition Law” has been upheld, and is not in conflict with the so-called Volstead Act passed by the Congress of the United States. Following Ex Parte Gilmore, 88 Texas Grim. Rep., 529, Davidson, Presiding Judge, dissenting. 3. —Same—Accomplice—Corroboration—Charge of Court. Where, upon trial of a violation of the. so-called Dean Law, the defendant excepted to the court’s failure to instruct the jury with reference to the law of accomplice, and pointed out that the purchasers of the whisky from the defendant were accomplices, the conviction cannot be sustained and there was reversible error. 4. —Same—Rehearing—Purchaser of Intoxicating Liquors—Accomplice. By the terms of the so-called “Dean Law,” enacted after the Constitutional amendment to the State Constitution was adopted, the purchaser as well as the seller is made to suffer the penalty for its violation, and it was necessary to charge upon accomplice testimony where- the conviction depended upon the testimony of the purchasers of the intoxicating liquors. Following Franklin v. State, 88 Texas Crim. Rep., 342. 5. —Same—Confession—Corpus Delicti—Defendant’s Confession. Where, upon trial of a violation of the State prohibition law, the court below failed to charge upon accomplice testimony, the record showing that the State’s witnesses were purchasers of the liquor sold, the conviction could not be sustained, although the defendant confessed the sale of such liquor, inasmuch as the corpus delicti could not be established by the defendant’s confession alone.
88 Tex. Crim. 492Gumpert v. State (1921)
In this case the defendant pleaded guilty to the offense charged in the indictment, and in his motion for new trial and in arrest of judgment set up the insufficiency of the indictment, and also some excep - tions to the sufficiency of the evidence, but in the absence of a statement of facts the latter is not considered in the opinion of the court. Judge F. L. Hawkins presided at defendant’s trial and therefore did not participate in the decision of this appeal.
88 Tex. Crim. 495Hardin v. State (1921)
1. —Mortgage—Fraudulent Disposition Of—Indictment. In an indictment for fraudulently disposing of mortgaged property, it is not necessary to set out in haeo verba or in substance the mortgage referred to, or to allege any specific indebtedness, and where the indictment complied with approved precedent, there was no error in overruling the motion to quash. Following Haile v. State, 43 S. W. Rep., 999, and other cases. Overruling McElroy v. State, 150 S. W. Rep., 797. 2. —Same—Rule Stated—Indictment. Where, the allegation in the indictment in the instant case was that said mortgage is a valid, subsisting, and unsatisfied mortgage, it sufficiently alleged that the same was for a consideration and given to secure a debt. Following Jones v. State, 35 Texas Crim. Rep., 569. Distinguishing Rudy v. State, 81 Texas Crim. Rep., 272. 3.—Same—Mortgage—Evidence—Bill of Exceptions. Where, upon trial of fraudulently disposing of mortgaged property, the defendant objected to the introduction in evidence of the mortgage in question, for the same reason he set up in his motion to quash, there was no error in overruling same. 4.—Sane—Variance—Mortgage—Description of Property. Where, upon trial of. fraudulently disposing of mortgaged property, the defendant objected to the evidence and contended that there was a variance between the description of the property named in the mortgage and that described in the indictment, and that the variance consisted in the fact that the mortgage named more property than is set out in the indictment, the same was properly overruled. Following Martin v. State, 28 Texas Crim. App., 364, and other cases. 5. —Same—Variance—Name—Suffix—Surplusage. Where, defendant claimed a variance based on the fact that the indictment alleges the mortgage made and given to H. C. Bailey, while the instrument offered in evidence was made and given to H. C. Bailey, Jr., same was correctly overruled, inasmuch as the suffix" junior or senior may be regarded as surplusage. Following Lassiter v. State, 35 Texas Crim. Rep., 541, and other cases. 6. —Same—Question of Fact—Charge of Court—Defensive Theory. Where, defendant contended that the case was not made out because of the fact that he sold the property in question in the forenoon before giving the mortgage in the afternoon of the same day, and there was evidence pro and con upon th'is question, and the court below submitted this defensive theory to the jury, who found against the defendant and convicted him, there was no reversible error. 7. —Same—Rehearing—Indictment—Mortgage—Rule Stated. When a written instrument is but an incident or ancillary to the issues in a transaction, it is not required that it be set out at length in the pleading. Following Green v. State, 28 Texas Crim. App., 493, and other cases; and an allegation that the defendant delivered to the party injured a valid mortgage in writing, etc., is sufficient. Following Haile v. State, supra.
88 Tex. Crim. 500Barnes v. State (1921)
Assault to Rape—Insufficiency of the Evidence—Aggravated Assault. Where, upon trial of assault with intent to rape by force, the evidence would have authorized the jury to convict the defendant of an aggravated assault, but there was an absence of facts which revealed an intent upon the part of the defendant to commit the assault with intent to rape, there is reversible error. Following Collins v. State, 52 Texas Crim. Rep., 457, and other cases.
88 Tex. Crim. 502Castelberry v. State (1921)
The opinion states the case.
88 Tex. Crim. 504Mikeska, Jr. v. State (1921)
Wife Desertion—Insufficiency of the Evidence. Where, upon trial of wife-desertion, the evidence was insufficient to sustain the conviction, or to show any violation of the statute, the conviction could not be sustained and the judgment must be reversed and the cause remanded.
88 Tex. Crim. 506Armstrong v. State (1921)
The opinion states the case.
88 Tex. Crim. 507Bell v. State (1921)
1.—Selling Intoxicating Liquors—Indictment—Negative Allegations. Where, in negativing the statutory exceptions, the indictment used the conjunction “and” between the words “Scientific and sacramental,” and by motion to quash defendant urges that this renders the indictment void: held, that such contention is untenable. Following Ex parte Meckel, 87 Texas Crim. Rep., 120; distinguishing Byrd v. State, 72 Texas Crim. Rep., 242. 2.—Same—Burden of Proof—Rule Stated. The burden is not on defendant to prove that the sale was made under some one of the named exceptions, and that he is therefore not guilty, but is on the State to prove that it was not under any of them. o
88 Tex. Crim. 509Ex Parte Guinn (1921)
1. —Delinquent Child—Complaint—Collateral Attack—Judgment. Although the complaint was not artfully drawn, the pleader having used printed blanks containing much matter that should have been erased, nevertheless, it was sufficient in its allegations of delinquency, besides, this being a collateral attack on the judgment, which recites a sufficient complaint and information, there is no reversible error on that ground. Following Ex parte Davis, 85 Texas Crim. Rep., 219. 2. —Same—Judgment—Collateral Proceeding—Jurisdiction. Where, upon habeas corpus trial of a delinquent child, the judgment below showing that the court was one of competent jurisdiction, and there being nothing in the record that such jurisdiction did not attach, it is presumed in a collateral proceeding that the judgment is valid. 3. —Same—Time and Place of Confinement—Judgment—Docket Entry. Where, the judgment in the instant case sufficiently complies with the law requiring that the time and place of confinement of the delinquent child shall be stated in the judgment, there was no reversible error; following Ex parte Roach, 87 Texas Crim. Rep., 370; and the contention of relator that the docket entry of the trial court was incomplete in failing to state the duration of the confinement, and that therefore the detention of the relator is unauthorized, is untenable, as the judgment contained no such vice. 4. —Same—Affidavit—Judgment—Collateral Attack—Habeas Corpus. Where, the judgment in the instant case is of such dignity that this court cannot disregard it upon an ex parte affidavit to declare the same void upon the ground that no notice was given as the law requires, and this is a matter which the trial court should determine, such affidavit will not be considered on habeas corpus proceedings. Following Ex parte Japan, 36 Texas Crim. Rep., 482, and other cases; and the application for writ of habeas corpus must be dismissed.
88 Tex. Crim. 512Russell v. State (1920)
1. —State Highway Law—Information—Complaint—Inoperative Statute. Where, the first.count of the information was drawn under Section A, of Art. 820-K, Vernon’s Texas Criminal Statutes, 1918, Supplement, and charged that the defendant did then and there drive and operate a motor vehicle upon the highway in this State in a careless manner, and did not then and there show due regard for the safety and convenience of other vehicles and traffic upon said public highway, the same charged no offense, and the provision of the statute under which it is drawn is inoperative and unenforcible, insofar as it undertakes to define an offense. Following Griffin v. State, 86 Texas Crim. Rep., 498. 2. —Same—Complaint—Informtion—Danger Signal—Valid Statute. Where, the second count of the said information was drawn under SubDivision F, Article 820-K, supra, and alleged that the defendant was then and there, while driving a motor vehicle upon a public highway in said State and county, attempting to pass another vehicle by overtaking said vehicle without then and there sounding audible and suitable signal before passing said vehicle going in the same direction, against the peace and dignity of the State, the same properly alleged an offense. It is not the passing or attempting to pass that is made criminal; it is the failure to give the signals required which is made penal; and this was sufficiently alleged in said count of the information, and sufficiently definite in the statute. 3. —Same—Insufficiency of the Evidence—Danger Signal—Motor Vehicle. Where, upon trial of a violation of Section F, Article 820-K, Vernon’s Texas Criminal Statutes, 1918 Supplement, the proof failed to show that the defendant had knowledge of the presence of the buggy which his automobile struck on the public highway, he could not be held to be guilty of an offense under said statutes in his failure to give the signal required thereby, and the conviction cannot be sustained, and the judgment must be reversed and the cause remanded.
88 Tex. Crim. 518Cornelius v. State (1921)
The opinion states the case.
88 Tex. Crim. 520Brooks v. State (1921)
The opinion states the case.
88 Tex. Crim. 525Cockrell v. State (1921)
1. —Scire Facias—Recognizance—Bail Bond—Vacation. Where upon appeal from a final judgment upon a forfeiture of a bail bond, appellant contended that the bond was taken at a subsequent session of the District Court, and not in vacation, and that therefore it was void, held: that such contention is untenable. Distinguishing Laird v. State, 79 Texas Crim. Rep., 129. 2. —Same—Statutes Construed—Words and Phrases—Vacation. The term “vacation” as used in Article 904, C. C. P., is not used for limitation but for inclusion, and that the bond mentioned in said article may be made in vacation as well as during a subsequent sitting of the court; and the matter of a recognizance taken after the expiration of the term, is not involved. Distinguishing Curfman v. State, 81 Texas Crim. Rep., 324, and other cases. 3.—Same—Legislative Intent—Statutes Construed—Appeal Bond. The Legislature of 1907 had in mind the enactment of laws to meet all conditions of confinement of one accused of crime and to make sure the terms of bail in all such cases, and, therefore, a bail bond for appeal taken by the sheriff and approved by the court, after the expiration of the trial term, is valid, although approved while a subsequent term of the court was in session. Following King v. State, 83 Texas Crim. Rep., 304. 4. —Same—Married Woman—Statutes Construed—Surety. By the provisions of Chapter 32, Acts of the Regular Session, Thirty-third Legislature, it is specifically provided that a married woman may become surety on a bond if joined by her husband in the execution of such instrument. ■ 5. —Same—Rehearing—Recognizance—Appeal Bond—Common Law Bond. After the adjournment of the term, the trial court can make no further orders in an appealed case, except to correct records or substitute same; and an original obligation for an appeal after the expiration of the trial term, in a felony case, should be in the form of an appeal bond, conditioned as required by the statute, and is not a Common Law Bond. Following Quarles v. State, 37 Texas Crim. Rep., 362.
88 Tex. Crim. 529Ex Parte Gilmore (1920)
88 Tex. Crim. 548Hegman v. State (1921)
The opinion states the case.
88 Tex. Crim. 560Thompson v. State (1921)
Manslaughter—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, exceptions to the charge of the court, etc., cannot be reviewed on appeal and the judgment must be affirmed.
88 Tex. Crim. 561Prestidge v. State (1921)
The opinion states the case.
88 Tex. Crim. 562Clowers v. State (1921)
The opinion states the case.
88 Tex. Crim. 569Reece v. State (1921)
Intoxicating Liquor—Manufacture—Equipment—Federal and State Legislation. Where, upon trial of having in his possession a still for the manufacture of intoxicating liquors not for mechanical nor medicinal purposes, etc., defendant pleaded guilty, but nevertheless excepted to the court’s charge and contended 'that the court should have instructed the jury to assess the punishment prescribed by the Act of Congress instead of the laws of the State of Texas, there was no error in refusing same; besides, the same was not presented before the court’s main charge was read to the jury. Following Ex Parte Gilmore, 88 Texas Crim. Rep., 529.
88 Tex. Crim. 570Gates v. State (1921)
The opinion states the case.
88 Tex. Crim. 570Cates v. State (1921)
88 Tex. Crim. 574Ex Parte Jonischkies (1921)
From DeWitt County. Original Habeas Corpus proceedings, asking release from confinement by virtue of a capias pro fine issue from the County Court of DeWitt County, upon appeal from the Corporation court of Yorktown. The opinion states the case.
88 Tex. Crim. 576Burciago v. State (1921)
The indictment is as follows: “In the Name and by Authority of the State of Texas: The Grand Jurors in and for the County of Falls, State aforeseaid, duly organized as such at the May Term, A. D., 1920, of the District Court for said County, upon their oaths in said- court present that Tomas Burciago on or about the 12th day of April, one thousand Nine Hundred, and Twenty, and anterior to the presentment of this indictment, in the County of Falls and State of Texas, did then…
88 Tex. Crim. 582Russell v. State (1921)
1. —Manufacturing Intoxicating Liquors—Continuance—Impeachment. Where, defendant’s motion for continuance was for the purpose of impeachment of certain State’s witnesses, the same was correctly overruled; besides, it did not state that it was not made solely for delay, or that the result of the trial would have been different, and it appearing that the testimony was probably not true in the light of the record, there was no error in overruling the motion. Following Browning v. State, 26 Texas Crim. App., 432, and other cases; besides there was not proper diligence. 2. —Same—Endorsement—Indictment—Witnesses—Process. The fact that the names of the State’s witnesses were not endorsed on the inlictmest would not be any excuse for failure to promptly apply for process for the absent witnesses of the defendant, and where defendant was arrested on the 29th of April, and no subpoenas were applied for until the 3rd of May following, the diligence was not sufficient. 3. —Same—Act of Congress—Dean Law—Precedent. The act of Congress, known as the Volstead Act, is not in conflict with the Dean Law of this State, and the questions raised in appellant’s motion for new trial were decided adversely to him in a recent case. Following Ex Parte Gilmore, 88 Texas Crim. Rep., 529. 4. —Same—Indictment—Words and Phrases—Description. The words “spirituous, vinous and intoxicating liquors capable of producing ■ intoxication,” as used in the indictment, are a sufficient description of the liquor claimed to be manufactured. 5. —Same—Constitutional Law—Manufacture and Sale of Intoxicating liquors. There is nothing in our Constitution which denies to the Legislature of this State power to enact laws forbidding the manufacture or sale of liquor intoxicating in character, or even a non-intoxicant with less alcoholic content than would be required to produce intoxication. 6. —Same—Evidence—Manufacturing Liquor—Practice in Trial Court. Upon trial of unlawfully manufacturing intoxicating liquors in violation of the Dean Law, there was no error in admitting testimony that the witness at a certain time and place saw defendant making or cooking whisky, and describing equipment and apparatus in use, that defendant was managing the still; that defendant had stated that" he would kill anybody who told on him for making whisky; nor was there any objection to the testimony because it was admitted upon redirect examination and not in rebuttal. 7. —Same—Evidence—Manufacture of Intoxicating Liquors—Purpose. Upon trial of unlawfully manufacturing, intoxicating liquors under the Dean Law, there was no error in allowing the State to ask defendant while a witness if he had not been offering to get whisky for people about the time of this alleged offense. This bore on the question of manufacturing liquor and that it was not for one of the purposes excepted by the statute. 8. —Same—Evidence—Other Transactions. Upon trial of unlawfully manufacturing intoxicating liquors under the Dean Law, there was no error in permitting the State to ask defendant upon cross-examination if he recalled the finding of a still by the officers near what was known as the "Binkley place,” it appearing that said officers had found such a still, and which was afterwards identified as the same outfit defendant was operating on the day of the instant offense. 9. —Same—Evidence—Declarations of Defendant—Still for Manufacturing Liquor. Upon trial of unlawfully manufacturing intoxicating liquor under the Bean Law, there was no error in allowing the State to ask defendant upon his qualified denial, to prove just what defendant said a day or two after the said still was captured on the “Binkley place,” to the effect that if the officers had not bothered him he would have paid his debts this year, and that this was the still found by the officers, and which he was operating when the State’s witnesses were present and saw him. 10. —Same—Evidence—Bill of Exceptions. Where, the bill of exceptions did not contain enough of the rejected testimony, with reference to defendant being indicted about a year before the violation of the liquor law in the instant case, to show affirmatively that the evidence was inadmissible, there is no reversible error, 11. —Same—Evidence—Reputation—Contradicting State’s Witness. Where, upon trial of unlawfully manufacturing intoxicating liquors under the Dean Law, the defendant attempted to contradict the main State’s witness by laying a direct predicate while said witness was on the stand, showing contradictory statements of the said witness, etc., and that the State’s witness was himself a violator of the law, etc., there was no error in admitting evidence of the good reputation for truth and veracity of the State’s witness by the State.
88 Tex. Crim. 587Roberson v. State (1921)
Carrying Pistol—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant was not legally justified in carrying the pistol, and otherwise supported the conviction, there was no reversible error. Following Mayfield v. State, 75 Texas Crim. Rep., 103.
88 Tex. Crim. 589Shamblin v. State (1921)
The opinion states the case.
88 Tex. Crim. 593Kolb v. State (1920)
1. —Receiving and Concealing Stolen Property—Charge of Court. Where, upon trial of receiving and concealing stolen property, from a certain party, alleging the property in a certain owner, the court charged the jury without confining himself to the property described in the indictment, and did not limit the same to said transaction described therein, the same was reversible error. 2. —Same—Case Stated—Charge of Court—Description of Property. Where, defendant was charged with receiving a car, or automobile, from Pyne, alleged to be the property of Barnes, and the court charged the jury to find the defendant guilty if he knew at the time that said automobile was acquired by theft, by the said Pyne, without limiting the consideration to the transaction as described in said indictment, the same was reversible error. 3. —Same—Definition of Theft—Receiving and Concealing Stolen Property. Where, the defendant was charged with receiving and concealing stolen property, and the evidence showed that he advised and encouraged one Pyne to steal automobiles of a certain kind, agreeing to pay him therefor the sum of $250, and when this had been accomplished Pyne had no further interest in the car, or its proceeds, but defendant could sell or dispose of them in any way he desired and for whatever price he could obtain, and the proceeds and profits all belonged to the defendant, and, in other words, the conspiracy did not extend to defendant’s sale of the car, and the division of the proceeds with Pyne, and the defendant was not a principal in the original taking, the transaction was not theft. Following Burrow v. State, 85 Texas Grim. Rep., 133, and other cases. Distinguishing Smith v. State, 21 Texas Crim. App., 107, and other cases.
88 Tex. Crim. 598Burnett v. State (1921)
1. —Adultery—Complaint—Upon Evidence and Belief. Where, upon trial of adultery, the complaint was made upon “evidence and belief” of affiant, the same was good and supports the information, following Anderson v. State, 34 Texas Crim. Rep., 96, and other cases; and besides, no motion to quash was filed, and the-motion in arrest of judgment did not urge this ground. 2. —Same—Information—Habitual Carnal Intercourse—Living Together. Where the complaint and information charged defendant with unlawfully having habitual carnal intercourse with Ethel Busby without living together, the contention of defendant that the State failed to make out" its case because the parties lived together is untenable, where the proof showed the parties inhabited separate and distinct rooms, although they lived in the same house, and there was no testimony suggesting that defendant supported and maintained or aided in supporting his paramour. Following Boswell v. State, 48 Texas Crim. Rep., 47, and other cases.
88 Tex. Crim. 599Terrell v. State (1921)
1.—Wife Desertion—Amending Statutes—Constitutional Law. Section 36, Article 3, of the Constitution, declaring that no law shall be revised or amended by reference to its title, etc., is not involved in Article 640, C. C. P., wherein a wife is made a competent witness against the husband charged with the offense of wife desertion, even if the effect of this article he to restrict the operation of Art. 795, C. C. P., following Clark v. Finley, 93 Texas, 177, and other cases. 2. —Same—Letter—Evidence—Rule Stated—Act of Defendant—Res Gestae, When. Letters written by the person injured, or by a third person, addressed to the accused and received by him but never answered or acted on by him are not admissible against him unless they are a part of the res gestae, etc.; and where the wife of the defendant, in a trial for wife desertion, opened and read a letter addressed to him by a young woman, and when told about it simply laughed and said it made no difference to him, etc., but aside from the recitals in the letter there was nothing to show that defendant induced its writing, acted upon it, or adopted it, its contents were hearsay and should have been excluded, and not admitted in evidence. Following James v. State, 40 Texas Crim. Rep., 195, and Hollingsworth v. State, 80 Texas Crim. Rep., 300. 3. —Same—Sufficiency of the Evidence—Practice on Appeal. Where, the sufficiency of the evidence was challenged, this matter will not be reviewed, in as much as another trial is contemplated. However, the desertion must be wilful and show that the wife was in destitute or necessitious circumstances. Following Wallace v. State, 85 Texas Crim. Rep., 91, and other cases.
88 Tex. Crim. 602Corder v. State (1921)
Tick Eradication Law—Complaint—Information. Where, upon trial of a violation of the tick eradication law, the complaint and information failed to charge that the written order of the Livestock Sanitary Commission directing defendant to dip his stock was ever delivered to him, and for various other reasons, all of which were previously decided adversely to the State, the pleading was bad on motion to quash, and the judgment is reversed and dismissed.
88 Tex. Crim. 603Criswell v. State (1921)
1. —Burglary—Private Residence—Sufficiency of the Evidence—Recent Possession. - Where, upon trial of burglary of a private residence, the evidence was sufficient to support the conviction, although circumstantial, there was no reversible error. 2. —Same—Recent Possession—Circumstantial Evidence. Where, upon trial of burglary of a priviate residence, the evidence showed possession of recently stolen property unexplained, the knowledge of defendant of the alleged stolen property prior to its disappearance, and that when found it was wrapped in an envelop addressed to the defendant, the conviction is sustained and the motion for rehearing is overruled.
88 Tex. Crim. 605Garcia v. State (1921)
1. —Burglary—Evidence—Confessions—Fruits of the Crime. Where, upon trial of burglary, the evidence showed that the defendant and his companion were arrested together; that some of the property taken from the burglarized house was identified in their possession, and after being placed in jail, both made a confession to the sheriff and informed him where the other stolen property could be found, whereupon the sheriff took along the co-defendant who pointed out the place where he found the property, there was no error in introducing this joint confession against the defendant, although the defendant was not present at the time the property was found; Distinguishing Crowder v. State, 28 Texas Crim. App., 51. 2. —Same—Case Stated—Confession—Joint Defendants—Conspiracy. Where, upon trial of burglary, the evidence disclosed that defendant and his co-defendant were acting together in the alleged burglary, and that both of them made confessions, being together at the time they were made and in the presence of each other, the same were admissible in evidence against the defendant, both of them informing the officer .where the stolen property was hidden and where he afterwards found it, although he took along the co-defendant alone to point out the place. Following Blake v. State, 81 Texas Crim. Rep., 87. 3. —Same—Evidence—Voluntary Statement—Examining Trial—Refreshing Memory. Where defendant was arrested and upon an examining trial before a justice of the peace made a voluntary statement under the statutes, which was offered and admitted in evidence by the State, and it was not clear whether the justice of the peace had made the statement to defendant that his confession could be used for or against him, and during the examination the State’s attorney showed that the warning was read from the statutes, and also the certificate of the justice of the peace was handed to him to refresh his memory, there was no reversible error, neither the certificate nor the statute being introduced in evidence, and there being no requested charge that this matter should be submitted to the jury. 4. —Same—Exclusive Possession—Property Stolen. Where, upon trial of burglary, there was evidence that some of the alleged stolen property was found in the possession of the defendant and his co-defendant when they were arrested shortly after the burglary, and that both were acting together in the offense, there was no error in admitting testimony as to finding some of the property stolen as the result of the joint confession of the defendant and his co-defendant; the contention being that this property so found was not taken from the personal possession of the defendant. 5.—Same—Rule Stated.—Conspiracy—Possession of Stolen Property. Even after the conspiracy is ended, as an exception to the general rule, it may be shown that a co-conspirator, or a co-defendant, was found in possession of the fruits of the crime, etc., and where in the instant case the defendant and his co-defendant were together, and the property was found at least under their joint care and possession, there was no error in admitting such testimony.
88 Tex. Crim. 612Hoyt v. State (1921)
1. —Receiving Stolen Property—Confession—Rule Stated—Hearsay. Where upon trial of receiving stolen property the confession of the alleged thief was introduced in evidence, to the effect that he had stolen the property and that he had delivered and sold same to defendant, the latter part of the confession was hearsay and should not have been admitted in evidence. Following Forrester v. State, 69 Texas Crim. Rep., 62, 152 S. W. Rep., 1041, and other cases. 2. —Same—Embezzlement—Theft—Delivery Boy—Principal and Agent. This court cannot agree with the contention of defendant that the party who was alleged to be the thief of the stolen property was the agent of the alleged owner of the same, and that the offense would be embezzlement and not theft. The alleged thief was but a delivery boy of the alleged owner and was not carrying the goods to a customer but took them out of the store of the alleged owner. 3. —Same—Charge of Court—Defensive Theory. Where, upon trial of receiving stolen property, the defendant claimed that he bought said alleged goods from the alleged thief in good faith and without knowledge that the same were stolen, the court should have submitted an affirmative charge presenting this defensive theory, when requested to do so. This was reversible error. Following Grande v. State, 37 Texas Crim. Rep., 54, and other cases. 4. —Same—Election By State—One Count. Where, the indictment contained but one count, there was no error in overruling defendant’s motion to require the State to elect. 5. —Same—Evidence—Sustaining Witness—Practice in Trial Court. Where defendant attempted to sustain his witness by proving statements similar to his testimony on the trial, but such attempt was made before the State offered any testimony to impeach said witness, and the defendant failed to offer such testimony after the State had introduced its testimony, there was no reversible error. 6. —Same—Intent—Charge, of Court—Receiving Stolen Property. In some way the question of the intent of the accused in receiving said property should have been submitted in the instant case, which raised such issue. Following Wilson v. State, 12 Texas Crim. App., 481, and other cases.
88 Tex. Crim. 614Ex Parte Littleton (1921)
The opinion states the case.
88 Tex. Crim. 618Cotton v. State (1921)
The opinion states the case.
88 Tex. Crim. 624Moore v. State (1921)
1. —Murder—Evidence—Dying Declaration—Statement of Deceased. Where, upon trial of murder, the defendant introduced in evidence a part of the dying declaration of the deceased, there was no error in permitting the State to introduce from said dying declarations the statement of the deceased that he never had any weapon of any kind; the case having heen tried upon the theory that the issue of self-defense upon apparent danger was involved, and the State’s theory was that the deceased made no demonstration, and that there was no act from which the defendant could reasonably draw the inference that he was in danger of attack. Following Williams v. State, 30 Texas Crim. App. 444, and other cases. 2. —Same—Evidence—Declarations of Defendant—Res Gestae. Where, the hill of exceptions did not overcome the presumption in favor of the correctness of the court’s ruling that the declaration of defendant, that he killed the deceased because he had been talking about his sister, was not shown to have heen -res gestae, there was no reversible error. 3. —Same—Murder—Manslaughter—Malice—Other Motive. Where, appellant contended that under the facts, a conviction for a higher grade of offense than manslaughter could not be sustained, but there-was evidence besides that of insulting language to defendant’s sister, that defendant was incensed because the deceased had become the surety for a certain party, upon his bail bond, and that this may have been his motive, etc., there was no error in the court’s submission of the issue of murder, "for which offense the defendant was convicted. 4. —Same—Manslaughter—Charge of Court—Burden of Proof. Where appellant contended that the vice in the court’s charge was that it was so framed as to convey to the jury the idea that the defendant was required to prove the fact relied on by him, to reduce the grade of the homicide from murder to manslaughter, and placed the burden of proof upon him beyond a reasonable doubt, but taking the charge of the court as a whole on murder, manslaughter, and self-defense, and that no requested charge presented manslaughter defensively to the court’s charge on murder, there was no reversible error in the instant case, as the court was not applying the reasonable doubt to manslaughter as a lesser degree, but to manslaughter as a higher crime as against self-defense, or no crime at all. Following Pitts v. State, 29 Texas Crim. App., 374. 5. —Same—Charge of Court—Insulting Language Toward Female Relative. Where the Court’s charge on adequate cause did not convey to the jury the idea that the right of defendant, growing out of alleged insulting conduct towards or words relating to his sister, depended upon the existence of such conduct or words in fact, the complaint on this ground was untenable, and there was no reversible error. 6. —Same—Right to Go Armed—Charge of Court—Perfect Self-Defense. The court having in the charge embodied no qualification of the right of perfect self-defense, there is no merit in the complaint of his refusal to instruct the jury on the law applicable to defendant’s right to arm himself and seek the deceased for an explanation. Following Williford v. State, 38 Texas Crim. Rep., 393, and other cases. 7. —Same—Rehearing—Manslaughter—Requested Charge. Where, appellant contended in his motion for rehearing that this court erred in holding that he asked no special charge on manslaughter, but it appeared from the record that this court did not intend to so hold, hut did intend to say that no charge was asked representing manslaughter defensively, in connection with the charge of murder, there is no reversible error; besides, the requested charge on manslaughter is manifestly erroneous, as it omitted the essential ingredient of a passion such as rendered the mind incapable of cool reflection. 8. —Same—Charge of Court—Right of Going Armed. The contention that said charge should have been given because same prevented appellant’s right to arm himself and ask an explanation is not tenable because the record showed no evidence supporting such issue and that the parties met casually and not upon defendant’s purpose to meet the deceased. 9. —Same—Manslaughter—Charge of Court—Sufficiency of the Evidence. Where, appellant again insisted, in his motion for rehearing, that the court’s charge on manslaughter was too restrictive, but this was not borne out by the record, there was no reversible error; and while the same may not have been aptly framed, it substantially presented the issues raised by the record and no harm to the defendant seems to have resulted from the charge to the court, and the evidence being sufficient to support the conviction of murder, these was no reversible error.
88 Tex. Crim. 634Ex Parte De Silvia (1921)
From Jefferson County. Original Habeas Corpus proceeding asking release from arrest under a fine of $100 assessed against him in the County Court of Jefferson County at Law, No. 2, and confinement in the county jail for 60 days. The opinion states the case.
88 Tex. Crim. 634Silvia v. State (1921)Petitioner discharged
1. Statutes <&wkey;109 — Statute with misleading title unconstitutional. A statute is violative -of Const, art. 3, § 35, requiring the subject of the act to he stated in the title, if the title is misleading and imports a subject different from that to which the law relates. 2. Statutes <&wkey; 124(1) — Statute creating municipal court under title calling for creation of county court invalid. Acts 35th Leg. (1918) 4th Call. Sess. c. 61, ¡held violative of Const, art. 3, § 35, requiring the subject of an act to be stated in the title, in that it is entitled an act to establish a county court, whereas in effect it creates a municipal court, in view of Vernon’s Ann. Civ. St. Supp. 1918, arts. 1788-1811. 3. Constitutional law <&wkey;63(2) — Statute delegating to city power to fix qualifications, etc., of judge held unconstitutional. Acts 35th Reg. (1918) 4th Call. Sess. c. 61, providing for organization of county court of Jefferson county at! law No. 2, held- void, in that under section 3 the Legislature delegated to the governing body of the city of Port Arthur the right to name qualifications, tenure of office, and method of election of judge in violation of Const, art. 5,. §§ 1, 15. 4. Constitutional law &wkey;>63(2) — Legislature cannot deiegate control over organization of courts. The Legislature has no right to delegate ■to a municipal corporation authority to control the organization of courts specially committed to the Legislature, notwithstanding the rule that legislative powers relating to matters of purely local concern may be delegated to the city.
88 Tex. Crim. 639Jennings v. State (1921)
The opinion states the case.
88 Tex. Crim. 642Mason v. State (1921)
The opinion states the case.
88 Tex. Crim. 649Ex Parte Haley (1921)
From Dallas County. Original habeas corpus proceedings, asking release from the penitentiary, contending that the judgment of conviction was void because of a defective recognizance in change of venue proceedings. The opinion states the case.
88 Tex. Crim. 654Ex Parte Rogers (1921)
Habeas Corpus—Bail—Buie Stated. Bail will not be denied unless the evidence in the record is such that this court must conclude that upon a proper decision based thereon, the applicant would receive capital punishment, and in doubtful cases, bail should be granted.
88 Tex. Crim. 655Powell Alias Powers v. State (1921)
1. —Forgery—Notice of Appeal—Motion for New Trial—Transcript. Where, upon appeal from a conviction of forgery, the transcript failed to show that the motion for new trial was overruled, or that notice of appeal was given, as required under the statute, the appeal must be dismissed. Following Parish v. State, 77 Texas Crim. Rep., 19, and other cases. 2. —Same—Statement of Facts—Transcript—Felony—Practice on Appeal. The original statement of facts in a felony case must be sent to this court, and will not be considered if it is copied in the record, and where this appeared in the transcript the statement of facts will be stricken from the record. Following Leggett v. State, 61 Texas Crim. Rep., 99, and other cases.
88 Tex. Crim. 656James v. State (1921)
The opinion states the case.
88 Tex. Crim. 659Cook v. State (1920)
1. —Rape—Sufficiency of the Evidence. Where, upon trial of rape upon a female under the age of consent, the evidence supported a conviction under a proper charge of the court, there is no reversible error. 2. —Same—Evidence—Flight—Examining Trial—Harmless Error—Bail. XTpon trial of rape upon a female under the age of consent, there was no error in permitting proof that at an examining trial the defendant was held under bail to await the action of the grand jury; that while there was no forfeiture of the bail bond, the defendant. did not appear upon the return of an indictment against him, but went to a point in the State of Kansas and was there arrested; to show the flight of the defendant. Following Sorrell v. State, 74 Texas Crim. Rep., 505, 169 S. W. Rep., 104, and other cases; besides, if error, the same was harmless, as the.matter was proved by other evidence without objection. 3. —Same—Jury and Jury Law—Challenge for Cause. Where, defendant complained that a certain juror had expressed an opinion and demanded to challenge him for cause, which the court overruled, and the juror was excused on peremptory challenge and it appeared that the defendant had failed to exhaust his challenges and that no improper or prejudiced juror was forced upon him, there was no reversible error. Following Carter v. State, 45 Texas Crim. Rep., 433, and other cases. 4. —Same—Evidence—Impeaching Witness—Declarations of Prosecutrix. Where, upon trial of rape, defendant’s witness testified that the prosecutrix told him at the house of the mother of a certain State’s witness, that the latter was the cause of her pregnancy, and that defendant’s witness had told said' mother, there was no error in permitting the State to place said mother upon the witness stand and have her deny this matter, contradicting the said defendant’s witness. 5. —Same—Rehearing—Evidence—Flight—Examining Trial—Bail Bond—Rule Stated. Without exception, the rule is that the efforts of one who is accused of crime to evade arrest or trial are available to the State as circumstances against him, and proof that there was a failure to appear in accord with a bail bond or recognizance is admissible in evidence against the accused, and this may be shown, as in the instant case, that the examining court had required bail, and that the defendant did not appear upon- the return of an indictment against him, but left for another State and was there arrested; and this, although there was no forfeiture of the bail bond. Following Brown v. State, 57 Texas Crim. Rep., 572, and other cases. 6. —Same—Sufficiency of the Evidence. Where, upon trial of rape of a female under the age of consent, the evidence was sufficient to support, although based principally upon prosecutrix testimony, the conviction, ther'e was .no reversible error. 7. —game—Rule Stated—Prosecutrix—Rape—Sufficiency of the Evidence. The decisions of this court are uniform in holding that verdicts for rape may be sustained by the testimony of prosecutrix under the age of consent. Following Donley v. State, 44 Texas Crim. Rep., 429, and other cases, and we know of no precedent that will warrant this court in holding that the evidence in this case is so intrinsically weak as to render it insufficient to support the verdict of the jury, and the judgment of conviction must be confirmed.