89 Tex. Crim.

Volume 89 — Texas Criminal Reports

202 opinions

89 Tex. Crim. 1Medford v. State (1921)
1. —Murder—Continuance—Diligence—Absent Testimony, Agreement to. Where, defendant’s first application for continuance shows proper diligence and that the absent testimony is material, the continuance should have been granted, although the State’s counsel offered to permit the use of the absent testimony, but declined to admit that the same was true, and the same constituted reversible error. Following Hyde v. State, 16 Texas, 458, and other cases. 2. —Same—Cross-examination—Continuance—Waiver. Where upon cross-examination of defendant the latter replied that his wife testified upon a former trial and for the absence of whose testimony the defendant asked for a continuance, counsel for the State stated that he was willing for the entire statement of facts with reference to said witness to be admitted in evidence, to all of which defendant’s counsel objected and which was overruled by the court, this did not waive defendant’s right to his continuance, although he then introduced said testimony of said absent witnesses. Following Davis v. State, 52 Texas Crim. Rep., 333, and other cases. 3. —Same—Conduct of State’s Counsel—Practice in Trial Court. The State’s counsel having without qualification declared that the defendant might use the absent testimony, and indicated by the sanction of the court that his failure to do so might be used against him in argument, appellant’s rights were not prejudiced by using the testimony thus made available and thereby endeavoring to minimize or obviate the erroneous adverse ruling of the court. Following McMillan v. State, 65 Texas Crim. Rep., 319, and other cases. 4. —Same—Evidence—Prior Difficulty. Where, upon trial of murder there arose a well defined and controverted issue concerning as to who was the aggressor in the beginning of the fight in which the deceased lost his life, there was no error in admitting evidence, words, and conduct of each of the parties during a former difficulty between them some two years prior to the homicide. Following Pratt v. State, 53 Texas Crim. Rep., 282, and other cases. 5. -—Same—Carrying Distance of Shotgun—Deadly Weapon—Self-defense. The distance that the shotgun used in the difficulty would kill or seriously injure one, may under the same circumstances become the proper subject of inquiry, to show whether the same in the hands of deceased was a deadly weapon. Following Yzaguirre v. State, 48 Texas Crim. Rep., 515, and other cases, but this could not be used to deprive defendant of the privilege of a proper charge on self-defense. ‘6.—Same—Undisclosed Motive—Evidence. Testimony that the deceased purchased a shotgun for his son, whicii was used at the time of the homicide, while not reversible error in the instant case, should not have been admitted in evidence, it being a matter unknown to the defendant. Following Cook v. State, 71 Texas Crim. Rep., 532, and other cases. ?:—Same—Charge of Court—-Deadly Weapon—Presumption—Continuing Danger. Where, upon trial of murder there was evidence that the deceased had threatened to kill the defendant and fired at him once and was in the act of firing again when he was shot, an appropriate charge upon the presumption arising from the use of a deadly weapon should have been given. Following Smith v. State, 57 Texas Crim. Rep., 455. The court should also have instructed the jury, under the facts, in reference to accused’s right to continue to shoot so long as the danger continued, viewed from his standpoint. Following Clark v. State, 56 Texas Crim. Rep., 2-95.
89 Tex. Crim. 6Jones v. State (1920)
1.—Burglary—Circumstantial Evidence—Recent Possession—Sufficiency of the Evidence. Where, upon trial of burglary the evidence showed, although circumstantial, that defendant was found in possession of the property recently stolen and gave no explanation, etc., there was no reversible error on that around. 2. —Same—Argument of Counsel—Practice on Appeal. Where, upon trial of burglary and a conviction of that offense, the argument of State’s counsel to which objection was raised was in response to that of defendant’s counsel, there was no reversible error. 3. —Same—Evidence—Argument of Counsel—Practice on Appeal. Where the bill of exceptions showed that the prosecuting officer used the following language: “Officer Brown knew Bert before this—and I guess he did know him,” and the record showed that the officer testified that he knew the defendant and saw him go into said pawn shop with the clothes, etc., there was no reversible error. 4. —Same—Argument of Counsel—Practice on Appeal. Where the remarks of the State’s counsel objected to by the defendant was a legitimate deduction from the evidence, there was no reversible error. 5. —Same—Bills of Exception—Practice in Trial Court—Rehearing—By-standers Bill. The rule is that the defendant cannot resort to a by-stander’s bill until after the trial judge has filed his own bill in lieu of the one refused by him for the defendant, and where counsel for defendant took the bills of exception refused by the judge and filed them with the clerk, although he was not directed by the trial judge to do so, they could not be considered on appeal, but the trial judge is not authorized, on the other hand, to place qualifications on said bills of exception and refile them unless defendant has assented and agreed that same shall be done, which he did not do, and the judgment must be reversed and the cause remanded. 6. —Same—Practice on Appeal—Bills of Exception. Of course, if this court could say, without qualification, that no error was shown by the practice pursued in the trial court with reference to filing of bills of exception received by the court, etc., no harm could come to appellant, on a refusal to reverse the instant case, but when the qualifications by the court are eliminated, this court must have doubt in affirming the judgment below, and not being able to consider the bills of exception, a reversal must follow.
89 Tex. Crim. 13Glenn v. State (1921)
1. —Murder—Statement of Pacts—Practice on Appeal. Where the alleged document purported to be a narrative statement of facts, which was neither signed by counsel nor the trial judge, and a question and answer statement not properly approved the same cannot be considered on appeal. 2. —Same—Special Venire—Practice on Appeal. Where, the judgment is reversed and the cause remanded upon other grounds, the manner of drawing the special venire need not be discussed farther than to say that trial judges should supervise more closely the drawing of special venires and follow the statute. 3. —Same—Misconduct of Jury—Failure of Defendant to Testify. Where, upon an appeal from a conviction of murder, the fact appeared from the record that there was an allusion to defendant’s failure to testify among the jurors before the amount of punishment was inflicted, and that this was not a casual reference to defendant’s failure to testify, which under the rule if promptly surpressed is not reversible error, this court is unwilling to let this conviction stand under the authority of Rogers v. State, 55 S. W. Rep. 817, and other cases. 4. —Same—Misconduct of Jury—Verdict by Lot—Rule Stated. Where, appellant complains that the verdict was reached by lot, but it is unnecessary in the instant case to discuss or decide that question, except to say that, where the State controverts such issue and testimony is introduced pro and con, it becomes the duty of the trial judge to determine the issue, and in the absence of error pointed out, there was no reversible error.
89 Tex. Crim. 17Richardson v. State (1921)
Unlawfully Transporting Intoxicating Liquors—Insufficiency of the Evidence. Where, upon trial of unlawfully transporting intoxicating liquor, the evidence did not show that the defendant was exercising control of the alleged liquor found in an automobile in which defendant and others were riding at the time, the conviction could not be sustained.
89 Tex. Crim. 18Andres v. State (1921)
1. —Intoxicating Liquors—Equipment—Jurisdiction—Federal and State Law. The contention that the United States District Court should have assumed jurisdiction of the offense because this was made exclusive by the Act of Congress known as the Volstead Act, has already been adversely decided to the defendant. Following Ex Parte Gilmore 88 Texas Crim. Rep.. 529. 2. —Same—Indictment—Motion to Quash—Transcript. Where, upon trial of having in his possession certain equipment for making liquor capable of producing intoxication, the defendant filed a motion to quash the indictment, but the record on appeal failed to show that any motion to quash the indictment was ever filed, the matter cannot be considered. However, upon examination of the indictment, the same is considered sufficient. 3.—Same—Motion For Mew Trial—Newly Discovered Evidence—Affidavit. Where the motion for new trial, because of newly discovered evidence, was not supported by affidavit of either the defendant or his counsel, the same cannot be considered on appeal. Following Vick v. State, 51 S. W. Rep., 1117; besides, conceding that the absent witness would have testified to all that he knew as shown by his affidavit, the same would not have changed the result of the instant trial, and there was no reversible error in overruling the motion.
89 Tex. Crim. 21Henderson v. State (1920)
The opinion states the case.
89 Tex. Crim. 34Mattison v. State (1921)
Theft of the Value of Fifty Dollars—Insufficiency of the Evidence. Where, upon trial of theft of over the value of fifty dollars, the evidence was insufficient to sustain the conviction, the judgment must he reversed and the cause remanded.
89 Tex. Crim. 36Gumpert v. State (1921)
1. —Forgery—Charge of Court—Intent to Injure—Requested Charge. Where, the requested charge, upon trial of forgery, with reference to the intent to injure was substantially submitted in the main charge, there was no error in refusing it. 2. —Same—Person to be Defrauded—Name of Person Defrauded. Assuming that the State is bound to prove the intent to defraud the person alleged in the indictment, upon trial of passing a forged instrument, the evidence being quite sufficient to discharge this burden, there was no error in refusing a requested charge which was embraced in the main charge; besides, an averment of the name of the person to be defrauded in the indictment was unnecessary. 3. —Same—Requested Charge—Guilty Knowledge—Article 743, C. C. P. Where, upon trial of passing a forged instrument, the defendant requested a charge that if he did not know the checks were forged he would not be guilty, but this matter was already embraced in the court’s main charge, there was no error in refusing the requested charge, as it was not calculated to injure the defendant under Article 743, C. C. P. Following Eggleston v. State, 59 Texas Crim. Rep., 543, and other cases. 4. —Same—Indictment—Duplicitious Pleading—Obligation—Instrument. Where, upon trial of passing forged instrument, the defendant by motion to quash and in arrest of judgment attacked the indictment, because it was duplicitous and ambiguous and failed to show that it was such an instrument as would increase or diminish, the obligation or transfer of any property, etc., the same was untenable; the instrument being a check ordinarily used in commercial transactions, and the fact that forgery and uttering a forged instrument are alleged in separate counts in the same indictment does not render it duplicitous. Following Chester v. State, 23 Texas Crim. App., 577, and other cases.
89 Tex. Crim. 39Douglas v. State (1921)
The opinion states the case.
89 Tex. Crim. 40Gumpert v. State (1921)
Forgery—Final Sentence—Practice on Appeal. Where, upon appeal from a conviction of forgery the record failed to show a final sentence, the appeal must be dismissed on motion by the State.
89 Tex. Crim. 40Jones v. State (1921)
The opinion states the case.
89 Tex. Crim. 41Walker v. State (1921)
The opinion states the case.
89 Tex. Crim. 45Barnett v. State (1921)
1. —Carrying Pistol—Evidence. Where, upon trial of unlawfully carrying a pistol, the court admitted testimony that the prosecuting witness was struck by a pistol on the head by the defendant and rendered unconscious, and was also struck with a crutch in the hands of defendant’s companion, but the record showed that this all occured in the same transaction, and that the State could only show the possession of the defendant of said pistol during this difficulty, there was no reversible error; although the court declined to permit defendant to introduce the details of said difficulty. 2. —Same—Deputy Marshal—Good Faith—Intent—Evidence. Upon trial of unlawfully carrying a pistol, the court should have admitted testimony that defendant had been verbally appointed deputy city marshal, had been acting as such for several days, and in fact and in truth believed that he had been duly and legally appointed such deputy at the time he carried the pistol, although he was not in fact legally appointed as such deputy. Qualifying Clopton v. State, 44 S. W. Rep., 173; Following Blair v. State, 26 Texas Crim. App. 387. Overruling Johnson v. State, 73 Texas Crim Rep., 133.
89 Tex. Crim. 48McClain v. State (1921)
1.—Theft of Cattle—Charge of Court—Practices on Appeal. Where, upon trial of theft of cattle, the trial court refused the requested peremptory instructions for acquittal, based on the insufficiency of the testimony. there was no reversible error. 2. —Same—Evidence—Tracks—Bill of Exceptions. Evidence, such as tracks of livestock, crossing from one pasture to the other where the fence had been let down, and that the calf tracks were accompanied by two horse tracks, would be circumstances tending to show human agency in the moving of the cattle, and would be to that extent material on the issue of theft; and in the absence of a sufficient bill of exceptions, there was no reversible error in overruling objection to this testimony. 3. —Same—Evidence—Tracks—Rule Stated—Comparison. It is well settled that in order to enable a witness to testify to the similarity of tracks, something more must appear than a casual observation or comparison, and where witness was permitted to testify that certain horse tracks which he saw at one place were similar to those seen by him at another place, without showing any peculiarity or in what way such tracks could be identified, the same was reversible error. Following Mueller v. State, 85 Texas Crim. Rep., 346, and other cases. 4. —Same—Evidence—Other Transactions—Other Offenses. Where, upon trial of theft of cattle, the State was permitted to prove that about the time the missing cattle were found, the defendant told certain State’s witnesses that a certain pasture was under his control, and that his brand was on some of the cattle in said pasture, it was reversible error to admit testimony that in other pastures besides the one so indicated were found a number of cattle belonging to the party injured whose brand had been changed to other brands than that given the witnesses by defendant as his. 5. —Same—Other Offenses—Evidence—Limiting Testimony. Where defendant was charged with the taking of one animal, no evidence should be admitted that other stolen property was found in possession of the accused aside from that alleged in the indictment without the necessary instructions limiting the jury’s consideration of such evidence. 6. —Same—Venue—Charge of Court. Where the evidence sufficiently showed that the place where the alleged cattle were taken was in the county of the prosecution, the court was justified in the submission of the issue of theft in said county. 7. —Same—Ownership—Foreman—Actual Control and Management—Variance. Where upon trial of theft of cattle the evidence sustained the allegation of ownership and possession in the person alleged in the indictment, and that he had care, control, and management of the animal, alleged to have been taken, there was no variance in the allegation and proof; although he had a foreman in charge of the ranch under his instructions, etc.
89 Tex. Crim. 53Freddy v. State (1921)
The opinion states the case.
89 Tex. Crim. 56Dyer v. State (1921)
The opinion states the case.
89 Tex. Crim. 57Ex Parte John Lewellen (1921)
The opinion states the case.
89 Tex. Crim. 59Gordon v. State (1920)
The opinion states the case.
89 Tex. Crim. 62Lee v. State (1921)
The opinion states the case.
89 Tex. Crim. 63Smallwood v. State (1921)
The opinion states the case.
89 Tex. Crim. 64Gumpert v. State (1921)
Passing Forged Instrument—Companion Case. Where upon appeal from a conviction of passing a forged instrument, appellant raised the same issues which were decided against him in companion cases, the conviction will be affirmed.
89 Tex. Crim. 65Reid v. State (1921)
"Wife Abandonment—Insufficiency of the Evidence. Where, upon trial of wife abandonment, there was evidence that defendant found that by reason of the high cost of living his wages in the city were not sufficient to support him and his wife, and that he went to the country and rented a farm and invited his wife to live with him, which she declined, and which evidence was not contradicted, the conviction could not be sustained.
89 Tex. Crim. 65Ross v. State (1921)
Abating Appeal—Practice on Appeal. It being shown by proper affidavit on appeal that appellant has escaped, the appeal must be dismissed.
89 Tex. Crim. 67McGowan v. State (1921)
The opinion states the case.
89 Tex. Crim. 70Scott v. State (1920)
The opinion states the case.
89 Tex. Crim. 76Walker v. State (1920)
The opinion states the case.
89 Tex. Crim. 87Moore v. State (1921)
The opinion states the case.
89 Tex. Crim. 89Hunt v. State (1921)
1. —Theft of Automobile—Bystander’s Bill—Practice on Appeal. The court agrees with the trial judge that the appellant, nor his attorneys, was such bystanders as the law contemplates. Following Walker v. State, 88 Texas Crim. Rep., 389, 227 S. W. Rep., 308; and it is not necessary to discuss the question as to whether one of the attorneys could sign his co-counsel’s name by him as agent and swear to the facts alleged, and have it considered, if it were otherwise permissible. 2. —Same—Bills of Exception—Practice in Trial Court. The trial judge should not have filed the bills of exception as qualified and explained by him unless defendant agreed to accept them as so modified; however, when defendant ascertained that 'this had been done, his proper course was to present a motion to withdraw them from the files, and request the trial judge to cancel the qualifications and mark the bills “refused,” with the further request that the judge prepare and file bills in lieu thereof; then, if the judge declined to do so, he should have resorted to proper bystanders bill to show that he had been denied his bills. Following Jones v. Stale, recently decided. 3.—Same—Bills of Exception—Qualifications—Practice on Appeal. Where the qualifications and corrections by the trial judge really amount to new bills, and in view of his statement give them the attitude of bills prepared in lieu of refused bills, this court will consider them in connection with the qualifications. 4.—Same—Theft of Automobile—Misdemeanor—Felony—Value—Statutes Construed. Where appellant insists that, notwithstanding the Act of the Legislature of 1915, amending article 1259-A, Vernon’s P. C., the theft of an automobile is still a misdemeanor regardless of its value, and that therefore the District Court was without jurisdiction. held, that considering the law as it now stands, and giving all parts of it effect to reach the conclusion contented for by defendant would do violence to a reasonable construction of the statute. Following Sparks v. State, 174 S. W. Rep., 351. 5.—Same—Requested Charge—Exculpatory Evidence—Motor License—Accomplice. Where, upon trial of theft of an automobile, the State introduced the motor license with the transfer on the back thereof as shown by the instrument, which defendant delivered to the purchaser who bought the car from the defendant, the court should have submitted charge that the jury must accept as true the statements contained in said motor license and transfer, unless the evidence shows same to be untrue beyond a reasonable doubt, and in this connection the testimony of the accomplice is not alone sufficient to prove the statements therein contained, and a failure to do so was reversible error. However, the requested charge was not in proper form. Following Roberts v. State, 60 Texas Crim. Rep., 20, and other cases. 6. —Same—Accomplice Testimony—Withdrawal of Improper Testimony—Other Offenses. Upon trial of theft of an automobile, it was permissible for the accomplice to testify that he and the defendant had entered into an agreement or conspiracy to steal Ford cars, and that this car, alleged in the indictment, was taken by defendant to demonstrate how easy it was to carry out the purpose of the agreement, but it was error to permit the State to show theft by defendant of other automobiles, even though they may have been committed in pursuance of the same conspiracy, and the withdrawal of such illegal testimony did not cure the error. Following Deckerd v. State, 88 Texas Crim. Rep., 133. 7. —Same—Evidence—Flight—Bill of Exceptions—Practice on Appeal. Where the bill of exception, under the issue permitting evidence of defendant’s arrest and attempted escape, were in such condition that they could not be intelligently interpreted, the same will not be considered. , 8.—Same—Charge of Court—Identity of Property—Owner. Where, upon trial of theft of an automobile, the defendant requested the court to.charge the jury to return a verdict of not guilty, unless they believed beyond a reasonable doubt tha't the automobile in question was the one that belonged to the alleged owner, which the court refused, the same was reversible error. Following Doss v. State, 28 Texas Crim. App., 506, and other cases. 9. —Same—Accomplice Testimony—Corroboration—Charge of Court—Insufficiency of the Evidence. Where upon trial of theft of an automobile, the conviction depended chiefly upon the testimony of an accomplice, which was not corroborated sufficiently to sustain the conviction, the judgment must be reversed and the cause remanded. Following Smith v. State, 58 Texas Crim. Rep., 106. 10. —Same—Continuance—Practice on Appeal—Argument of Counsel. Where the judgment is reversed and the cause remanded for other reasons, it is not necessary to discuss the failure of the court to grant the application for continuance, nor the remarks of the county attorney before the jury that he was ready in five cases against the defendant for the same reason, although this should not have occurred.
89 Tex. Crim. 99Todd v. State (1921)
The opinion states the case.
89 Tex. Crim. 105Donegan v. State (1921)
The opinion states the case.
89 Tex. Crim. 106Thomas v. State (1921)
The opinion states the case.
89 Tex. Crim. 108Thomas v. State (1921)
Tried below before the Honorable Joel R. Bond. Appeal from a conviction of selling intoxicating liquors under the Dean Law; penalty, one year imprisonment in the penitentiary.
89 Tex. Crim. 110Thomas v. State (1921)
The opinion states the case.
89 Tex. Crim. 111Connell v. State (1921)
The opinion states the case.
89 Tex. Crim. 112Taylor v. State (1921)
Tried below before the Honorable J. R. Warren. Appeal from a conviction of murder; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case.
89 Tex. Crim. 122Mucker v. State (1921)
Assault to Murder—Evidence—Bill of Exceptions. Where the bill of exceptions did not show the harmful effect of the testimony admitted, and the record showed that the testimony described in the bill of exceptions was not used against the appellant, and the bill does not overcome the presumption in favor of the correctness of the court’s ruling in admitting the testimony objected to, there is no reversible error.
89 Tex. Crim. 123Ex Parte Foster (1921)
From Bowie County. Original application for habeas corpus; seeking release of relator from the State Juvenile Training School under a judgment and sentence adjudging him a delinquent and incorrigible child. The opinion states the case.
89 Tex. Crim. 125Ex Parte Gordon (1921)
From Bowie County. Original application for habeas corpus, asking release from imprisonment in the Juvenile Training School, which is hereby denied. The opinion states the case.
89 Tex. Crim. 129Thomas v. State (1921)
1. —Violation of State Liquor Law—Recognizance—Felony Case—Rule Stated. On an appeal in a felony case, when the record does not contain a recognizance or bail bond, the presumption of this court is unless the opposite is made to affirmatively appear that the appellant is in jail, and the rule contended for by the State applies only to misdemeanor cases; but, the record not containing a final sentence, the appeal must be dismissed. However, the defect being corrected, the case will be considered on its merits. 2. —Same—Insufficiency of the Evidence—Accomplice—Corroboration—Rule Stated. The purchaser of intoxicating liquor who illegally buys the same under the terms of what is known as the Dean Law, being equally guilty of a violation of said law by reason of said purchase, becomes an accomplice and a conviction upon his testimony cannot be supported unless the same is corroborated as required by law. Following Westbrook v. State, 88 Texas Crim. Rep., 466, recently decided.
89 Tex. Crim. 131Uppenkamp v. State (1921)
The opinion states the case.
89 Tex. Crim. 133Williams v. State (1921)
1. —Tick Eradication—Sunday—Service of Notice. Appellant’s contention that the notice to dip his cattle was served upon him on Sunday, and that therefore the service was illegal, and that he could not be prosecuted for failure to dip his cattle is untenable. 2. —Same—Charge of Court—Zone—Quarantined Zone. Where the court in his charge was properly within his province in directing the jury that the territory where defendtnt’s cattle were situated was within the quarantined zone, there was no reversible error. 3. —Same—Information—Proof—Evidence—Variance. Where the information in the case charged that the stock belonging to the defendant had been inspected, and had been found to be infected with fever-carrying ticks, but did not allege that the stock had within nine months next preceding been exposed to the fever tick, and the court in his main charge to the jury limited their consideration to the issue as made in the information, it was reversible error to submit a requested charge by the State over defendant’s objection as to the exposure of such cattle to fever-carrying ticks, etc.; besides, there was no evidence of such exposure.
89 Tex. Crim. 136Mathason v. State (1921)
The opinion states the case.
89 Tex. Crim. 140Lane v. State (1921)
1. —Murder—Bill of Exceptions—Evidence. Where, the hill of exceptions did not show whether the rejected testimony was material or not, there was no reversible error. 2. —Same—Bill of Exceptions—Practice on Appeal. Where, the bill of exceptions did not show that the question asked was answered, or what the answer would have been, the same cannot be considered on appeal. 3. —Same—Bill of Exceptions—Practice on Appeal. Where, the bill of exceptions showed no fact to enable this court to determine, the character of testimony admitted, that it was in rebuttal or too remote, as complained of, same cannot be considered on appeal. 4. —Same—Bill of Exceptions—Practice on Appeal. Where, the bill of exceptions did not show whether the witness answered the question or what answer he would have made, same 'presents no reversible error, and where the evidence sustained the conviction, there was no reversible error.
89 Tex. Crim. 142Ex Parte Crow (1920)
Habeas Corpus—Bail—Practice on Appeal. Where, pending the application for bail, the relator was convicted, the reasons for the application for bail ceased, and this court would be powerless to grant bail under the circumstances; however, it appearing subsequently under relator’s application for rehearing that the judgment of the lower court was reversed and the cause remanded, said application for bail is considered and the judgment of the lower court denying bail is affirmed.
89 Tex. Crim. 143Stevenson v. State (1921)
IForgery—Misconduct of Jury—Defendant’s Failure to Testify. Where, upon trial o£ forgery, certain testimony was withdrawn by the ■court, and the jury were instructed not to consider the same, and also not to consider the defendant’s failure to testify, but the jury, nevertheless, discussed the defendant’s failure to testify, and also considered matters entirely outside the record, the same was reversible error. Following Wilson v. State, 39 Texas Grim. Rep., 365, and other cases.
89 Tex. Crim. 145Smith v. State (1921)
The opinion states the case.
89 Tex. Crim. 149Crow v. State (1921)
Tried below before the Honorable W. S. Anderson. • Appeal from a conviction of murder; penalty, death. The opinion states the case.
89 Tex. Crim. 161Thomas v. State (1921)
The opinion states the case.
89 Tex. Crim. 162Wingo v. State (1921)
1. —Incest—Reproduction of Testimony—Predicate. Where, upon trial of incest, the defendant objected to the reproduction oí the testimony of a certain State’s witness because a proper predicate had not been laid therefor, and the record on appeal showed that the appellant is sustained in this contention, the judgment must be reversed and the cause remanded. Following Ripley v. State, 58 Texas Crim. Rep., 489, and other . cases. 2. —Same—Evidence—Other Acts of Carnal Intercourse. Testimony as to other acts of carnal intercourse should not have been introduced by the State before there had been any denial of such incestuous relations, or a cross-examination of such a chartcter as to make other acts of intercourse admissible. Following Wingo v. State, 85 Texas Criminal Rep.. 118, and other cases.
89 Tex. Crim. 166Pelz v. State (1921)
1. —Using Automobile of Another—Information. Where the information and complaint charged in one count that defendant had driven and operated, and caused to be driven and operated said car, the same was not duplicitous pleading. Following Todd v. State, 229 S. W. Rep., 515. 2. —Same—Name of Court—Information—Jurisdiction. The fact that the legislative Act creating the court in which the instant case was tried denominated said court the County Court of Wichita County at law, and that the information stated its presentment in the County Court at Law of Wichita County, this met the requirement that it must appear from the information that it was presented in a court of competent jurisdiction. S.—Same—Practice in Trial Court. Where it did not appear that appellant was not given his statutory two days between the date of his arrest and the trial, or that he made the application for postponement, or that he was injured by the refusal of such postponement, there was nothing to review.
89 Tex. Crim. 168Nugent v. State (1921)
1. —Recognizance—Name of Offense—Practice on Appeal. Where the recognizance recited that the defendant stood charged with the offense by conversion, etc., the same was an insufficient description of the offense, and the appeal must be dismissed; however, where a sufficient recognizance was entered into thereafter, the appeal is re-instated. 2. —Same—Indictment—Bailment—Agent—Husband and Wife. Where the indictment failed to allege that the party alleged was acting as the agent of the owner of the alleged hogs, or that she was authorized by him to make the contract of bailment with the defendant, the same was insufficient, under Article 1348, Vernon’s Penal Code, and it could not be infered as a matter of law that because she is the wife of the owner of the property that she was authorized to act as agent with reference to said property. Following McCarty v. State, 45 Texas Crim. Rep., 510, and other cases. 3. —Same—Husband and Wife—Ownership—Bailment. If the husband had gone away, leaving his wife in the exclusive control, care, and management of the alleged hog, ownership could be alleged in her.
89 Tex. Crim. 171Gardner v. State (1921)
The opinion states the case.
89 Tex. Crim. 172Harris v. State (1921)
The opinion states the case.
89 Tex. Crim. 174Taylor and Morrow v. State (1921)
The opinion states the case.
89 Tex. Crim. 176Ratcliff v. State (1921)
1.—Burglary—Ownership—Possession—Servant. Where, upon trial of burglary, the evidence showed that the actual owner was not in possession of the house and the alleged property therein as charged in the indictment, but showed that at the time of the burglary the house and property were in possession of another, who had the actual care, management and control of same, ownership and possession should have been alleged in the latter; the relation of the latter to the property not being that of a mere servant, Following Daggett v. State, 39 Texas Crim. Rep., 7. 2:—Same—Accomplice Testimony—Corroboration—Charge of Court. Under the facts of the case, and exception to the court’s charge, the trial judge should have charged the jury that one accomplice cannot corroborate another, it appearing that three of the State’s witnesses were accomplices, and that said fact was so stated in the charge. Following Franklin v. State, 53 Texas Crim. Rep., 549, and other cases.
89 Tex. Crim. 177Williams v. State (1921)
The opinion states the case.
89 Tex. Crim. 178Barnett v. State (1921)
Aggravated Assault—Evidence—Buie Stated—One Transaction—Bes Gestae. Where, upon trial of aggravated assault, the State was permitted to introduce in evidence part of the transaction occurring between the parties, and the defendant was put in the attitude of acting with another against the injured party, the conversation which took place at the time between the parties was a part of the transaction tending to explain the act of defendant and his companion, and the same was res gestae and admissible in evidence and the exclusion of same was reversible error.
89 Tex. Crim. 180Walker v. State (1921)
The opinion states the case.
89 Tex. Crim. 182Poye v. State (1920)
1. —Industrial Welfare Commission—Employer and Employe—Constitutional Law—Police Regulations. Section IX, Chapter 160, Acts of the Regular Session of the Thirty-Sixth Legislature, is constitutional and not violative of the Fifth and Fourteenth, amendments of the Constitution of the United States, and not in contravention of the provisions of Article I, of the Federal Constitution; nor of Section 19, Article I, of the State Constitution. 2. —Same—Repeal of Law—Saving Clause—Practice on Appeal. Where, pending appeal, a motion for rehearing was filed, and the act under which the appellant had been convicted was repealed by the Legislature without a saving clause, and no other penalties substituted, the cause must be dismissed.
89 Tex. Crim. 185Ex Parte Cole (1921)
The opinion states the case.
89 Tex. Crim. 188Grammer v. State (1921)
The opinion states the case.
89 Tex. Crim. 190Tamaya v. State (1921)
The opinion states the case.
89 Tex. Crim. 192Snider v. State (1921)
Misdemeanor—Corporation Court—Complaint—Invalidity of Statute—Motor Vehicle. Where, upon trial of a misdemeanor in the corporation court of the city of Terrell, Texas by complaint, the latter charged no offense against the laws of the State, because the statutes with reference to driving motor vehicles on the public highway is too indefinite to describe an offense, the motion to quash should have been sustained. Following Russell v. State, 228 S. W. Rep., 566.
89 Tex. Crim. 193Donegan v. State (1920)
1. —Receiving Stolen Property—Final Judgment—Practice on Appeal. In the absence of a final judgment in the record on appeal, the appeal must be dismissed; besides, the notice of appeal was defective; however, the record having been corrected, the appeal is reinstated. 2. —Same—Jury and Jury Law—Jury Commissioners—Rehearing—Oath Necessary. Where, upon appeal from a conviction of receiving stolen property under the value of $50, it appeared from the record that the jury commissioners, who selected the jury in the county court, were not sworn by the County Judge, to draw the jury for the term for which the defendant was tried, the judgment must be reversed and the cause remanded; however, the fact that the County Judge and the District Judge appointed the same men as jury commissioners for their respective courts, was no cause for reversal; following White v. State, 45 Texas Crim. Rep., 598. .'3.—Same—Rule Stated—Trial by Jury—Jury and Jury Law. The right of trial by jury stands upon a higher plane than expediency, and fair trial by jury means a jury selected according to the law, regulating their selection and empannelment, and where in the instant case the jury was not selected by a properly appointed jury commissioner, the same is reversible error. Following Irvin v. State, 57 Texas Crim. Rep., 331, and other cases.
89 Tex. Crim. 199Kerley v. State (1921)
The opinion states the case.
89 Tex. Crim. 201Slaughter v. State (1921)
The opinion states the case.
89 Tex. Crim. 205Shaw v. State (1921)
Tried below before the Honorable James Connell. Appeal from a conviction of unlawfully manufacturing intoxicating liquors; penalty, one year imprisonment in the penitentiary. The opinion states the case.
89 Tex. Crim. 211Hunt v. State (1921)
The opinion states the case.
89 Tex. Crim. 213Busby v. State (1921)
The opinion states the case.
89 Tex. Crim. 216Mettall v. State (1921)
1. —Forgery—Fictitious Person—Circumstantial Evidence. Evidence that a fictitious name was signed to the instrument is a circumstance against its genuineness, and the absence of knowledge of or acquaintance with the purported signer of the instrument when testified to by persons situated so that they would probably know him is properly received, and circumstantial evidence is available to prove forgery. Following Fry v. State, 86 Texas Crim. Rep., 79. 2. —Same—Evidence—Confessions—Forgery. Where, upon trial of forgery, the defendant declared in his alleged confession that he, without authority wrote a check coinciding in all particulars with that declared upon, the same is sufficient, even if the statement fell short of a full confession of guilt. Following Bloch v. State, 81 Texas Crim. Rep., 8. 3. —-Same—Endorsement—Variance—Check—Practice in Trial Court. The endorsements found on the check at the time it was offered in evidence did not authorize its rejection upon the ground of variance, as they were no part of the document declared upon. Following Bennesey v. State, 23 Texas Crim. App., 354, and other cases. 4. —Same—Corpus Delicti—Confession—Identity of Defendant. The defendant’s confession was available to the State in aid of other proof to establish the corpus delicti, and the identity of the accused may be established by his confession. Following Sullivan v. State, 40 Texas Crim. Rep., 639, and other cases. 5. —Same—Sufficiency of the Evidence—Practice on Appeal. Where, upon trial of forgery, in addition to the confession of defendant the evidence was sufficient to sustain the conviction, there was no reversible error. 6. —Same—Rehearing—Practice on Appeal—Assignment of Error. Where the grounds of the motion for rehearing simply reiterate that this court erred in not having sustained the assignments originally presented, the motion for rehearing will be overruled. ,
89 Tex. Crim. 219Smith v. State (1921)
1.—Theft of Automobile—Accomplice Testimony—Charge of Court—Verdict By Lot. Where defendant’s requested charge on accomplice testimony was submitted to the jury, there was no error on that ground, nor was there error to warn the jury against finding a verdict by lot. Following Driver v. State, 37 Texas Crim. Rep., 160, and other cases. 2—Same—Evidence—Circumstantial Evidence—Charge of Court. Where the conviction was based upon circumstantial evidence, there was no error in admitting testimony by the owner of the alleged stolen automobile that it was his custom to park his car at the place from which it was stolen, the court instructing on circumstantial evidence.
89 Tex. Crim. 220Dias v. State (1921)
The opinion states the case.
89 Tex. Crim. 220Horn v. State (1921)
The opinion states the case.
89 Tex. Crim. 224Finley v. State (1921)
Scire Facias—Return—Citation—Defective Service—Default Judgment. Where the return upon the citation in a scire facias case was as follows: “Came to hand the fifteenth day of June, 1920, at five o’clock P. M.; executed 18th October, 1920, by delivering to A. Q- Finley and A. H. Hancock in person, a true copy of this writ,” the same was insufficient in not showing that each of the sureties was served with the writ of scire facias, and does not support a judgment by default. Following Fulton v. State, 14 Texas Crim. App., 32, and other cases.
89 Tex. Crim. 225Smith v. State (1921)
Theft—Evidence—Bill of Exceptions—Practice on Appeal. In the absence of a statement of facts, the presumption, in favor of the regularity of the conviction is ordinarily not overcome unless the bill of exceptions is so drawn as to demonstrate that the procedure complained of was calculated to injure the accused, and this did not appear in the instant case.
89 Tex. Crim. 226Criner v. State (1921)
The opinion states the case.
89 Tex. Crim. 230Young v. State (1921)
The opinion states the case.
89 Tex. Crim. 236Hedge v. State (1921)
The opinion states the case.
89 Tex. Crim. 243Campbell v. State (1921)
1. —Intoxicating Liquors—Possession—Transportation—Declaration by Defendant—Arrest. Where, upon trial of having in possession and transporting intoxicating liquors in violation of the law, it was not shown that defendant was under arrest at the time he made the declarations to the officers, that he had just bought said liquor from a bootlegger, etc., there was no reversible error. Following Speer v. State, 4 Texas Crim. App., 485, and other cases. 2. —Same—Evidence—Moral Turpitude—Rule Stated—Common Prostitute. It is competent for either party to ask a hostile witness if she is not a-common prostitute, and this question could be asked, although the witness had already stated that she had a room in the hotel kept by the defendant. Following McCray v. State, 38 Texas Crim. Rep., 609, and other cases. 3. —Same—Charge of Court—Defendant’s Knowledge. Where defendant contended that the trial court erred in his refusal to ’ submit his requested charge, that if the grips were left in defendant’s room and he did not know their contents (intoxicating liquors) he would not be guilty, but the evidence showed overwhelmingly that such contention was without substance, there was no reversible error. Following Mitchell v. State, 65 Texas Crim. Rep., 545; and other cases.
89 Tex. Crim. 245Carr v. State (1921)
The opinion states the case.
89 Tex. Crim. 247Fallon v. State (1921)
1.—Receiving and Concealing Stolen Property—Indictment—Different Counts. It has often been held proper in cases similar to this to charge in separate counts of the same indictment, theft and the receiving and concealing of stolen property. Following Trimble v. State, 18 Texas Crim. App., 632, and other cases. 2. —Same—Indictment—Grand Jury-—Unknown Principals—Theft. To allege that the defendant received the property from some person to the grand jurors unknown, and to further charge that said property had theretofore been acquired by another in such manner that the acquisition thereof comes within the meaning of the term “theft,” is sufficient. Following Taylor v. State, 51 S. W. Rep., 237, and other cases. 3. —Same—Ownership—Possession—Evidence—Rule • Stated—Corporation. The allegation of ownership and possession of property of a corporation in a theft case may be correctly alleged in some individual, and such allegations sustained by proof of the actual care, management, and control of such property by such" individual. 4. —Same—Evidence—Memory of Witness—Secondary Evidence. Upon trial of theft, etc., there was no error in permitting the witness to testify that from memory he could give the serial number of one of the alleged stolen casings, and this was not secondary evidence, because there was a list or written memorandum of said serial numbers which the witness did not have with him. 5. -—Same—Sufficiency of the Evidence—Requested Charge. Where, upon trial of theft and receiving stolen property, the evidence is sufficient to sustain the conviction, there was no error in refusing the requested charge to find the defendant not guilty. Distinguishing Arrington v. State, 62, Texas Crim. Rep., 357. 6. —Same-—Charge of Court—owner—Corporation. Where upon trial of theft, the trial court substantially charged the jury that one individual, or corporation, might be the general owner of property and another person have the actual care, control, and management of the same, and that ownership may be alleged in the person having such actual care, etc., there was no reversible error. 7. —Same—Newly Discovered Evidence—Motion for New Trial. Where the motion for new trial alleging newly discovered evidence was not sworn to by any person, same will not he reviewed on appeal, and the evidence being sufficient to sustain the conviction, there was no reversible error.
89 Tex. Crim. 252Franklin v. State (1921)
1. —Intoxicating Liquors—Possession—Dean Act—Accomplice Testimony. Where, upon trial of having in his possession intoxicating liquors ill violation of the Dean Act, the conviction depended upon accomplice testimony, the court should have submitted a charge on that phase of the la-w- and this would be true of the general statute independent of the Dean Law. 2. —Same—Constitutional Law—Possession. Appellant’s contention that the indictment in the instant case should have been quashed because the provisions of what is known as the Dean Law, with reference to the possession of intoxicating liquor, is contrary to the holding of the Supreme Court of the United States, is untenable. Distinguishing Street v. Lincoln Safe Dep. Co., 41 Sup. Ct. Reports, 31. 3. —Same—Defendant’s Explanation—Agent—Evidence—Mitigation of Punishment. Where, upon trial of possession of intoxicating liquors in violation of the Dean Act, the evidence showed that defendant was in possession of said liquor, he should have been allowed to show that he was not transporting it for himself but for other parties as their agent, in mitigation of the punishment.
89 Tex. Crim. 254Hall v. State (1921)
1. —Aggravated Assault—Surplusage—Information. Where, upon trial of aggravated assault, the information alleged that John Hall in and upon W. 0. Barnes, with a gun, the same then and there being a deadly weapon, did then and there commit an aggravated assault, the latter part of the information, that defendant presented the same in anger, etc., was surplusage, and the information was sufficient on motion to quash. Following Smith v. State, 62 Texas Crim. Rep., 281, and other cases. 2. —Same—Aggravated Assault—Pleading—Simple Assault—Intent to Alarm. If the defendant in the instant case presented at the party alleged to have been injured a shotgun, whether loaded or unloaded, with the intent to alarm and under circumstances calculated to effect that object, he would be guilty, not of an aggravated assault, but of a simple assault, and the court should have so charged the jury. Following Hall v. State, 105 S. W. Rep., 816, and other cases.
89 Tex. Crim. 257Hallmark v. State (1921)
1.—Burglary—Misconduct of Jury—Practice on Appeal—Other Evidence. Where reversal was sought upon the ground that the jury in their retirement received other testimony prejudicial to the defendant, and it appeared from the record on appeal that one of the jurors testified that he •could not recollect whether the discussion of another offense occurred while he was serving on the jury or not, and another juror testified that during ■said discussion another juror remarked that defendant was not on trial for that alleged offense, and no injury was shown to the defendant, there was no reversible error. Following Smith v. State, 52 Texas Crim. Rep., 351, and other cases. '2.—Same—Suspended Sentence—Plea of Guilty—Burden of Proof—Other Offenses. Where defendant entered a plea of guilty and also a plea for suspended •sentence, and the record on appeal showed that he had. been charged with numerous offenses, involving moral turpitude, and bore a bad reputation as-■a law-abiding man, it is doubtful whether the alleged occurrence in the jury "room, as to other offenses, was included in the evidence or not, and the burden being upon the defendant, there was no reversible error.
89 Tex. Crim. 259Fleischman v. State (1921)
1.—Theft—Possession—Charge of Court—Lessee. Where, upon trial of theft, the evidence showed that defendant had leased a certain barn and was in possession, entitled to the use of it and paying rent, the court should have submitted a requested charge that if the defendant at the time he took from said barn certain timber joists, etc., had at the time the care, control, and management of the same, a conviction could not be had. Distinguishing Lee v. State, 81 Texas Crim. Rep., 129. 2. —Same—Rehearing—Possession—Severing Timber from Realty. ■ This court cannot agree with the contention that when defendant by an act unauthorized by his lease contract, severed the timber from the barn, that this act in itself revived the possession of the actual owner. The defendant being in possession of the barn under his lease contract, was by virtue of same in possession of the several parts of the barn, although his act, in committing the severance may have been unauthorized. 3. —Same—Facts Stated in Original Opinion—Facts on Appeal. Where the facts stated in the original opinion, that the owner had protected himself, etc., were erroneous, yet such .statements does not change the legal announcement in the opinion, there is no error. 4. —Same—Practice on Appeal—Rehearing—Theft—Conversion. Where the State's attorney in the motion for rehearing requested that in the event this court should adhere to its holding it announce positively whether the offense would be theft by conversion, or no offense at all, this court, under the circumstances and the press of business, cannot make such announcement at this time.
89 Tex. Crim. 264Keith v. State (1921)
Tried below before the Honorable Joel R. Bond. Appeal from a conviction of maiming; penalty, five years imprisonment in the penitentiary. ■ The opinion states the case.
89 Tex. Crim. 272Barrientas v. State (1921)
The opinion states the case.
89 Tex. Crim. 273Pounds v. State (1921)
1. —Murder—Evidence—Remarks by Court—Child. Witness—Practice in Trial Court. Where, upon trial of murder, one of the State’s witnesses was a child, who testified probably for the first time, there was no error in the remarks by the trial judge to the witness that she take plenty of time and answer the questions, the purpose of the court being to quiet her in order that she might not become excited and to assure her that no harm would hefall her, etc. 2. —Same—Evidence—Witness Under Buie—County Attorney. Upon trial of murder, there was no error in permitting the county attorney, who was assisting the counsel for the State, to testify as a witness for the State, after he had. been sworn with the other witnesses and ordered placed under the rule, but remained in the courtroom assisting the State. 3. —Same—Evidence—Instrument Used. Upon trial of murder there was no error in permitting a State’s witness to testify as to finding and taking possession of a hammer in defendant’s . barn, some twenty-four hours after the injury was inflicted upon deceased, and describing the condition thereof, with reference to blood and "hair upon it, etc. Following Young v. State, 49 Texas Crim. Rep., 207, and other cases. 4. —Same—Argument of Counsel—Implement Used. Where, upon trial of murder, it was the theory of the State that the defendant committed the murder by using a hammer in striking deceased on the head, etc., which implement was in evidence, there was no error in the language of the State’s counsel in saying: “and by imagination transplant yourselves with "the bloody hammer and the whisp of mother’s hair, and standing at the lonely grave of this mother, write your verdict.” Following Tweedle v. State, 29 Texas Crim. App., 591, and other cases. 5. —Same—Argument of Counsel—Response to Counsel’s Argument. Where it appeared from the bill of exceptions that defendant’s counsel had told the jury, in his argument that if defendant had anything against him the jury knew the District Attorney would have brought it out, to which State’s counsel replied that the State could not have done so under - the rule that the defendant must first put his character in issue, there was no reversible error. Following Sinclair v. State,. 35 Texas Crim. Rep., 130, and other cases. .6,—Same—Argument of Counsel—Implement Used. Where, during the closing argument the district attorney took the hammer which was in evidence and said: “I do not know who explained it better than Dr. Cummings, himself, who, on cross-examination said: ‘No, no, it occurred to me that she had been pecked.” (meaning the deceased). ‘You notice it from ear to ear with a blunt instrument like this,’ ” the argument being based upon the facts in evidence, there was no error. 7.—Same—Argument of Counsel—Charge of Court—Bill of Exceptions. Where, upon trial of murder, the State’s theory was that defendant had killed deceased with a hammer, by knocking her in the head, and the defendant’s theory was that she was kicked by a mule, there was no error in the State’s counsel’s argument, using the language, “Has the defendant established to a reasonable and moral certainty that the deceased was killed by a jack?,” it not appearing by the bill of exceptions the connection in which this is used, and the court having already instructed the jury upon this phase of the case. '8.—Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence against the defendant, although wholly circumstantial, was sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error. -9.—Same—Rehearing—Argument, of Counsel—Implement Used. Where, upon trial of murder, there was before the jury evidence that the skull of the deceased was fractured in a number of places, and that by ■a number of blows with some blunt instrument numerous wounds had been inflicted, and that a certain hammer was in evidence, found near the scene of the homicide, spattered with blood and hair, etc., there was no error in the State’s counsel’s language, “it occurred to me that she had been pecked ■from ear to ear with a blunt instrument like this,” etc.
89 Tex. Crim. 287Guyon v. State (1921)
The opinion states the case.
89 Tex. Crim. 293Rainey v. State (1921)
1. —Intoxicating Liquors—Possession—Dean Act—Constitutional Law—Indictment. The so-called Dean Act is Constitutional, and there was no error in overruling the motion to quash the indictment urging that the law was unconstitutional, or that possession was not sufficiently alleged. Following Ex Parte Gilmore, 88 Texas Crim. Rep., 529. 2. —Same—Evidence—Practice on Appeal—Practice in Trial Court. Where it appeared from the record that the answer of the witness was objectionable, the proper procedure would have been to strike out same as not being responsive, and objection to the question asked was not well taken. 3. —Same—Evidence—Leading Question. The question, “Did any liquor come into your hands by anybody?”, is not open to the objection that it is leading, or hurtful to defendant. 4. —Same—Evidence—Illegal Possession—Intoxicating Liquor. Where, upon trial of having in his possession intoxicating liquor in violation of the Dean Act, State’s counsel exhibited to a witness two bottles, a funnel, and a glass jug and asked him the size of the bottle at the mouth, and the witness answered that it was a little bit larger than the little end of the funnel, there was no reversible error, as the State had the right to show the possession of the liquor by the accused for some purpose other than those excepted by the Statute. 5. —Same—Evidence—Opinion of Witness—Smell of Whisky. Upon trial of having in possession intoxicating liquors in violation of the Dean Act, there was no error in asking the witness, who had qualified, if he was acquainted with the smell of whisky, that the bottles taken from defendant’s car from their odor contained whisky. 6. —Same—Evidence—Bill of Exceptions—Practice in Trial Court. Where objections are made to the testimony, the bill of exceptions must set forth affirmatively, not only the grounds of objection stated but enough-facts to make it reasonably asuarent that such objections are meritorious. 7. —Same—Evidence—Conversation—Declarations of Defendant. Upon trial of a violation of the Dean Act, there was no error in admitting testimony setting forth the conversation between the defendant and the sheriff after the former’s arrest and after he had made bond, in which defendant made inculpatory statements. 8. —Same—Evidence—Opinion of Expert Witness. Upon trial of a violation of the Dean Act, there was no error in permitting a State’s witness to testify that from his experience in manufacturing, drinking, and handling whisky, he could tell that the bottle shown him contained home-made whisky and that it was intoxicating; there being no contention on this question.. 9. —Same—Evidence—Materiality of Testimony—Trial Court Practice. Where a witness testified without apparent objection that defendant had a pistol in his car, when arrested, and the record showed on appeal that this testimony had been excluded, there was no reversible error. 10. —Same—Argument of Counsel—Requested Charge. In the absence of a requested charge, against the argument of State’s counsel, in which he said, “Look at that stuff. Put a pistol beside it, then you would have a picture of unlawful weapons,”! there was no reversible error under the facts of the instant case.
89 Tex. Crim. 297Chandler v. State (1921)
The opinion states the case.
89 Tex. Crim. 300Chandler v. State (1921)
1—Sale of Intoxicating Liquors—Accomplice Testimony—Purchaser. Where, upon trial of selling intoxicating liquors in violation of the law, the court refused to charge on accomplice testimony, the same was reversible error. Following Robert v. State, 88 Texas Crim. Rep., 488, and other cases. 2.—Same—Principals—Insufficiency of the Evidence. This court has serious doubts as to whether a case was made out against the defendant, even had there been sufficient corroborating testimony, as there was no evidence that he was a principal in the alleged offense. Discussing Middleton v. State, 86 Texas Crim. Rep., 307, and other cases.
89 Tex. Crim. 302Chandler v. State (1921)
Intoxicating Liquors—Sale—Accomplice—Uncorroborated Testimony. Where, upon trial of the sale of intoxicating liquors in violation of the law, the conviction rested upon the uncorroborated testimony of the purchaser, the same cannot he sustained.
89 Tex. Crim. 303Chandler v. State (1921)
The opinion states the case.
89 Tex. Crim. 305Chandler v. State (1921)
1. —Intoxicating Liquors—Possession—Separate Offense—Former Conviction. Defendant’s former conviction for the sale of this identical intoxicating liquor could not be pleaded in bar for having unlawfully in his possession the same liquor. Following Chandler v. State, recently decided. 2. —Same—Accomplice Testimony. Where, upon trial of having in his possession intoxicating liquors, contrary to law, the testimony of the accomplice was not corroborated, by other evidence, the conviction cannot he sustained.
89 Tex. Crim. 306Chandler v. State (1921)
"Intoxicating Liquors—Possession of Equipment for Manufacturing—Sufficiency of the Evidence. Where, upon trial of possessing equipment for the manufacture of intoxicating liquor contrary to law, the evidence supported the conviction, there was no error in refusing a peremptory charge to acquit, and the conviction was sustained.
89 Tex. Crim. 308Chandler v. State (1921)
The opinion states the case.
89 Tex. Crim. 309Chandler v. State (1921)
The opinion states the case.
89 Tex. Crim. 312Chandler v. State (1921)
The opinion states the case.
89 Tex. Crim. 314Chandler v. State (1921)
Intoxicating Liquors—Sale—Accomplice Testimony—Insufficiency of the Evidence. We are constrained to hold that the statute which forbids the conviction of one accused of crime upon the uncorroborated testimony of an accomplice, and which must not only show that the offense was committed but must tend to connect the accused with the commission of the crime, has not been complied with in the instant case.
89 Tex. Crim. 316Chandler v. State (1921)
The opinion states the case.
89 Tex. Crim. 317Chandler v. State (1921)
The opinion states the case.
89 Tex. Crim. 319Smith v. State (1921)
1. —Burglary—Charge of Court—Explanation of Recent Possession. Where, upon trial of burglary, the theory of the State was that defendant had stopped' the car at a point where he was keeping watch for his companion in crime, while the latter broke into the garage and stole the articles which were lost, etc., there was no error in the court’s charge to tell the jury upon that issue, that if defendant was not a principal in the burglary and he received the stolen goods from his said companion, they would acquit him, and to refuse the requested charge, which was an exact copy of the form of charge laid down in the case of Wheeler v. State, 38 Texas Crim. Rep., 71, which was not applicable to the facts in the instant case. 2. —Same—Form of Charge—Practice on Appeal—Explanation. The charge recommended in the Wheeler case, supra, has not been favored by this court, which has always looked with more favor upon the shorter and simpler charge instructing the jury that if they believed the statement made by the accused, they would acquit. Following Robert v. State, 60 Texas Crim. Rep., 20, and other cases. 3. —Same—Principals—Charge of Court—Issue in Evidence. Where, upon trial of burglary, the evidence showed that the defendant was keeping watch while his companion committed the burglary, and the trial court no doubt had in mind in submitting his charge on principals this issue raised by the evidence, to which he applied his charge, there was no reversible error. 4. —Same—Sufficiency of the Evidence. Where upon trial of burglary the evidence sustained the conviction under a proper charge of the court, there was no reversible error. 5. —Same—Rehearing—Principals—Keeping Watch—Presence of Principal. Where, upon trial of burglary, the evidence showed that defendant kept watch while his companion in "crime committed the burglary, it was not essential that he was present at the immediate time and place of the commission of the offense to make him a principal, if he knew of the unlawful act and was keeping watch to prevent interruption or to secure the safety of his companion. Following Middleton v. State, 86 Texas Crim. Rep., 320, and other cases. 6. —Same—Explanation of Property Recently Stolen—Requested Change. The requested charge has been used in cases in which the State seeks to have drawn the inference of guilty connection with the offense from the possession by the accused of the fruits of the crime, but it is not sufficient in all cases and was not so in the instant case. Following Stephens v. State, 69 Texas Crim. Rep., 437, and other cases. ,
89 Tex. Crim. 326Monroe v. State (1921)
The opinion states the case.
89 Tex. Crim. 330Norman v. State (1921)
1. —Rape—Statutes Construed—Unchastity of Female. Where, upon trial of statutory rape, under the Act of the Thirty-Fifth Legislature, the court instructed the jury that the fact that the alleged female had had intercourse with other men prior to the arrival at the age of fifteen- would constitute no justification of the offense, the same was reversible error. 2. —Same—Words and Phrases—Defense—Chaste Woman—Unchaste Woman. The use of the word “defense” as defined by lexicographers, etc., precludes any meaning of the statute other than this. A chaste woman, within the meaning of the law, as applied to an unmarried woman, signifies one who has had no carnal knowledge of men, and an unchaste unmarried woman is one who has ‘ had carnal knowledge of men, and in cases of statutory rape the fact that the character of the female was unchaste prior to the time she had attained the age of consent, is available. Following Bailey v. State, 37 American State Rep., 543, and other cases. 3. —Same—Statutes Construed—Legislative Intent—Age of Female. The statute of this State, supra, was manifestly framed to preserve the purity of females under eighteen years of age, and to refrain from punishment for rape of one having intercourse with a female over fifteen years of age whom the evidence showed to be unchaste at the time the allegd offense was committed. 4. —Same—Unchastity—Prosecutrix—Circumstantial Evidence—Burden of Proof. Upon trial of statutory rape, defendant should have been permitted by circumstances to supplement the direct evidence tending to show the unchaste character of prosecutrix, and the burden of showing such unchaste character was not by reputation but by specific acts. Following Woodruff v. State, 72 Nebr., 815, and other cases. 5. —Same—Evidence—Husband and Wife—Illicit Intercourse Before Marriage. Upon trial of statutory rape, testimony as to circumstances showing that the defendant had been guilty of illicit intercourse with his wife prior to their marriage was inadmissible.
89 Tex. Crim. 334Williams v. State (1921)
The opinion states the case.
89 Tex. Crim. 340Ex Parte Shearman (1921)
Habeas Corpus—Bail—Record on Appeal—Withdrawal. In the absence of notice of appeal, jurisdiction does not attach to this court; besides, the record showed an application to withdraw the appeal which is therefore dismissed.
89 Tex. Crim. 340Campbell v. State (1921)
The opinion states the case.
89 Tex. Crim. 341Ex Parte Collins (1921)
Habeas Corpus—Capital Case—Practice on Appeal—Bail. It is the custom of this court not to set out or discuss at length the evidence introduced upon habeas corpus hearings, but by reason of the fact that many cases reach this court in which bail should have been allowed, this rule has been recently relaxed, but is again adhered to in the instant case, and bail is denied.
89 Tex. Crim. 342Carson v. State (1921)
The opinion states the case.
89 Tex. Crim. 345Lewis v. State (1921)
1.—Murder—Manslaughter—Charge of Court—Rule Stated—Practice in TriaCourt. J.n a doubtful case a charge of manslaughter should be given, Pickens v. State, 86 Texas Crim. Rep., 662, and other cases; and after all the evidence is in, if it is questionable in the court’s mind as to whether the issue of manslaughter is raised, it should be resolved in the defendant’s favor, and the matter passed to the jury. Following Steen v. State, 88 Texas Crim. Rep. 256. 2.—Same—Manslaughter—Rule Stated—Charge of Court—Practice in Trial Courts. The court does not determine the weight of the testimony, nor whether it is true or false in concluding whether to submit manslaughter. His only duty is to ascertain if any evidence raises the issue, regardless of what he may think of its cogency. S.—Same—Self-defense—Manslaughter—Charge of Court—Case Stated—Requested Charge. Where, upon trial of murder, the evidence raised the issue of self-defense, which was submitted to the jury, but the jury still had a right from the evidence to believe that deceased and his son made an assault on appellant and that the three of them became engaged in a fight and struggle, and from this alone, or in connection with previous abuse and assault, appellant’s mind became so inflamed as to render him incapable of cool reflection, and that the facts and circumstances were sufficient to produce such a state of mind in a person of ordinary temper, the court should have submitted manslaughter, although the defendant’s requested charge thereon was incorrect. 4. —Same—Insult to Female Relative—Adequate Cause—Manslaughter. Where the evidence showed that deceased called appellant a “son-of-a-bitch,” this would not support a charge on insult to a female relative, but such language, in connection with other things might be adequate cause; and in the instant case the jury ought to have been told that if the conduct and language of deceased, or deceased and his son, either alone or in connection with any previous abuse or assault by deceased aroused such a degree of anger, etc., as rendered him incapable of cool reflection, defendant would be guilty of only manslaughter. 5. —Same—Self-defense—Manslaughter—Rule Stated. If the ease is either murder or perfect self-defense, it is not error to fail to charge on manslaughter, but where the case becomes involved from the issues raised, it is a rare instance where the issue of manslaughter does not also become pertinent. Following Washington v. State, 68 Texas Crim. Rep., 589, and other cases. 6. —Same—-Self-defense—Apparent Danger—Charge of Court—Standpoint of Defendant. If from the acts of deceased and his son, or from the acts of either or both of them, or if from the words of either or both of them, coupled with the acts of either or both, it reasonably appeared to the defendant as viewed from his standpoint at the time, and all the facts and circumstances within his knowledge, that he was in danger of losing his life, or suffering serious bodily injury at the hands of either or both of them, and he killed deceased under such circumstances, he should be acquitted under a proper charge of the court. 7. —Same—Apparent Danger—Change of Court—Standpoint of Deletiti.ant. The appearance of danger must be viewed from defendant’s standpoint, and if it appeared to him from such standpoint from the acts or words, coupled with the acts of his assailant, that his life was in danger, he had a right to act on these appearances, Following Swain v. State, 48 Texas Crim. Rep., 103. 8. —Same—Charge of Court—Reasonable Doubt—Rule Stated—Murder. It is always proper, in cases of murder where manslaughter and self-defense are issues, to charge that if the jury find from the evidence, beyond a reasonable doubt, that' accused with malice aforethought killed deceased and that he was not acting under the influence of sudden passion aroused from an adequate cause and that he was not acting in self-defense, they would find him guilty of murder. 9. —Same—Verdict by Lot—Charge of Court—Weight of Evidence. Upon trial of murder there was no reversible error in the court's charge instructing the jury that the question of the guilt of the defendant must not be determined by lot, or in any manner by chance, and that in case of conviction the punishment to be assessed must not. be determined in any such manner, as this was not a charge on the weight of the evidence. 10. —Same—Opinion of Witness—Evidence—Shorthand Rendering of Facts. Where, upon trial of murder, an issue was joined as to whether the condition of the ground at the place of the killing was the result of a scuffle during the difficulty, or was caused by people tramping around there after the killing, there was no error in excluding the answer to the question. “What in your opinion did the tracks, heel prints, and tearing down of corn-stalks indicate,”? as this would not come under a shorthand rendering of the facts.
89 Tex. Crim. 354Ex Parte Collins (1921)
Tried below before the Honorable J. L. Manry. Appeal from a writ of mandamus; appeal from refusing to release appellant and to issue writ of mandamus.
89 Tex. Crim. 355Jones v. State (1921)
1. —Assault to Murder—Notice of Appeal—Jurisdiction. Without notice of appeal this court has no jurisdiction; however, where the omission in the record was supplied, the dismissal is set aside. 2. —Same—Charge of Court—Assault to Murder—Intent—Shot Fired at Another than the one intended. Where the indictment charged that the defendant made an assault in and upon Jud Mathis with intent to murder, etc., and the evidence showed that the shot was fired at another, which injured Mathis, the court correctly instructed the jury that if they believed from the evidence, beyond a reasonable doubt that the defendant with malice aforethought fired the shot that injured Mathis with the specific intent to kill another, he would be guilty of an assault with intent to murder Mathis. Following Mathis v. State, 39 Texas Crim. Rep., 552, and other cases. 3. —Same—Rule Stated—Intent—Shot Fired Hitting Third Farty—Pleading. Assuming that defendant fired at Elliott, and wounded Mathis, it was within the discretion of the State to charge an assault upon both Elliott and Mathis or upon either of them, but the conviction or acquittal, in one case would bar the prosecution in the other; Following Spannel v. State, 83 Texas Crim. Rep., 423, The fact that defendant wounded Mathis whom he did not intend to kill would not excuse him, as he fired with malice intending to kill Elliott. 4. —Same—Indictment—Intent to Injure Another Than the Party Assaulted. It is not essential that the indictment should contain averments setting out all the facts which it is necessary that the State prove in order to sustain the conviction, and where the indictment charged an assault upon Mathis and the evidence showed that he intended to assault another with intent to murder, the conviction was sustained. Following Dodd v. State, 83 Texas Crim. Rep., 164, and other cases. 5. —Same—Newly Discovered Evidence—Motion for New Trial. Where the alleged newly-discovered evidence was known to defendant before the trial, there was no error in overruling the motion for new trial on this ground.
89 Tex. Crim. 358Stanchel v. State (1921)
The opinion states the case.
89 Tex. Crim. 361Lemon v. State (1921)
The opinion states the case.
89 Tex. Crim. 363Finch v. State (1921)
The opinion states the case.
89 Tex. Crim. 368Witt v. State (1921)
The opinion states the case.
89 Tex. Crim. 371Byrd v. State (1921)
The opinion states the case.
89 Tex. Crim. 373Rodriguez v. State (1921)
1. —Assault to Murder—Aggravated Assault—Self-defense—Charge of Court— Rule Stated. If the accused is not willing to rest his case on an exception to the charge, and correct the error or omission by requested instructions, which is given, he is without well-grounded complaint, and his contention in the instant case, that he was compelled to have the issue of self-defense submitted in a requested charge is without merit. 2. —Same—Charge of Court—Defense of Another—Misdemeanor. In a misdemeanor case a requested charge muust be submitted, and the bill of exceptions alone is not sufficient, besides there was no evidence supporting the proposition that at the time the shot was fired by defendant that the same was in defense of his daughter, and there was no reversible error. 3. —Same—Right to Ann Himself—Charge of Court—Requested Charge—Self-defense. Where, upon trial of assault with intent to murder, and a conviction of aggravated assault, the evidence did not raise the issue that the State’s witnesses made demonstrations to attack the defendant and that there was no reason for the use of arms on the part of the defendant at the time of the difficulty, there was no error in refusing a charge to the effect that defendant had the right to arm himself on his own premises, etc., the court submitting a charge on the law of self-defense, without any limitation. Following Williford v. State, 38 Texas Crim. Rep., 396, and other cases. 4. —Same—Reasonable Doubt—Charge of Court—Practice in Trial Court. Where the trial court gave the usual charge on presumption of innocence and reasonable doubt, and applied the doctrine of reasonable doubt to the facts, and also to the degree of the crime charged, there was no error in refusing a requested charge upon the same subject. Following Caton v. State, 66 Texas Crim. Rep., 473. 5. —Same—Evidence—Credibility of Witness—Indictment—Practice in Trial Court. Where the State asked the witness if he had not been indicted for incest, and the defense offered the file mark of said indictment, and the State thereupon introduced the indictment itself, showing that defendant had been indicted for incest, and defendant had admitted that he had been so indicted, there was no reversible error. 6. —Same—Misconduct of Jury—Affidavits—Practice on Appeal. Where the affidavits attached to the motion for new trial showed that two of the jurors swore that one of them had referred to the fact that the defendant was guilty of incest and ought to be given ten years, and the record showed that defendant had admitted before the jury that he had been indicted for incest and the verdict was for aggravated assault, and no injury was shown, there was no reversible error. 7. —Same—Sufficiency of the Evidence. Where, upon trial of assdult with intent to murder and a conviction of aggravated assault, the evidence sustained the conviction under a proper charge of the court, there was no reversible error.
89 Tex. Crim. 378Hoover v. State (1921)
1. —Manslaughter—Continuance—Cumulative Evidence—Communicated Threats- Where the application for continuance as to one witness showed only cumulative evidence, and as to the other, on the question of communicated threats in the light of a motion for new trial, showed that no different results would have occurred had the absent testimony been present, there was no reversible error. Following Frizzell v. State, 30 Texas Crim. App., 55, and other cases. 2. —Same—Charge of Court—Manslaughter—Rule Stated. If accused had been convicted of murder it would have been necessary and proper to review the question on the criticism of the court’s charge on manslaughter as being too restrictive, but the conviction was for manslaughter and there was no just ground for complaint. 3. —Same—Charge of Court—Instrument Used—Deadly Weapon. Where, upon trial of murder, the court charged that the instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the party offending, and if the instrument be one not likely to produce death, it is not to be presumed that death was designed unless from the manner in which it was used such intention evidently appears. This, in connection with the requested charge given under Article 1149 P. C., was sufficient in the instant case. 4. —Same—Self-defense—Charge of Court—Communicated Threats. Where, upon trial of murder, the court gave a proper charge on the law of self-defense and relative to self-defense on the ground of communicated threats and demonstrations by deceased, there was no error in refusing a requested charge upon this subject. 5. —Same—Rehearing—Sufficiency of the Evidence—Practice on Appeal. Where the verdict bears the sanction of the trial court, and there being no weakness in the evidence nor departure from approved procedure to warrant a reversal, the affirmance must stand.
89 Tex. Crim. 382Israel v. State (1921)
The opinion states the case.
89 Tex. Crim. 387Barton v. State (1921)
1. —Robbery—Preliminary Statement—Affidavit—Statutes Construed—Insanity- While, under Subdivision 5 of Article 717, C. C. P., the defendant had the right to make a preliminary statement before introducing his evidence, there was no error in not permitting him to read to the jury an affidavit made by his mother stating that defendant was insane and had been twice adjudged a lunatic and placed in the asylum. 2. —Same—Insanity—Void Judgment—Judgment of Lunacy—Evidence. Where the lunacy judgment in evidence relied upon by defendant bore upon its face evidence that the decision- that lie was a lunatic was not made by a jury but by a commission which purported to act under Chapter 163, Acts of the Thirty-Third Legislature, which has since been declared void, the same was without force and effect; besides, the evidence showed, in the instant case, that the defendant had been released by the officers of the asylum upon parole, and that the offense took place nearly two years and a half after his release, and that he had been without restraint and had gone at large, and there was nothing upon which the inference could be based that his liberty was not with the full sanction of the asylum authorities, said judgment was not a bar to this prosecution. Distinguishing Hazelwood v. State, 79 Texas Crim. Rep., 483, and other cases. 3. —Same—Argument of Counsel—Lunacy Judgment. Where, upon trial of robbery, the defendant introduced a certain lunacy judgment, there was no error in the State’s counsel’s argument that said judgment was void and had been so declared by the Supreme Court; besides, no request was made to withdraw same, and there was no reversible error. Following Cockrel v. State, 85 Texas Crim. Rep., 326. 4. —Same—Evidence—Insanity—Opinion Testimony—Rehearing. Where, the State’s witness did not undertake to express his opinion as to the sanity or insanity of the defendant, but simply reported to the jury, in effect, that what opportunity he had to observe and talk to him disclosed nothing of an abnormal character in his mental condition, there was no reversible error. Following Turner v. State, 61 Texas Crim. App., 97.
89 Tex. Crim. 391Dodaro v. State (1921)
1. —Carrying Pistol—County Court—Precedent—Jurisdiction. Where the question, with reference to jurisdiction, has been decided adversely to the defendant in a recent case, it need not again be considered. Following Pelz v. State, 230 S. W. Rep., 154, recently decided. 2. —Same—Charge of Court—Place of Business—Home—Requested Charge. Where the requested charge, with reference to the defendant’s right of carrying his pistol from his place of business to his home, was not applicable to the facts in the instant case, there was no error in refusing it. 3. —Same—Charge of Court—Evidence—Practice in County Court—Charge of Court. Where the court’s main charge directed the jury not to consider the testimony of the State’s witness, with reference to the intentions of the defendant, and sufficiently covered that portion of the requested charge which it was proper to give, there was no reversible error.
89 Tex. Crim. 393Worley v. State (1921)
The opinion states the case.
89 Tex. Crim. 395Roberts v. State (1921)
1. —Assault to Murder—Continuance. Where upon trial of assault with intent to murder, the first application for continuance on account of an absent witness showed due diligence for process, and that the absent testimony was material, the overruling of same was reversible error. Following Roberts v. State, 67 Texas Crim. Rep., 580, and other cases. 2. —Same—Companion Case—Practice on Appeal. Where, other points presented in the appeal were without merit, and ruled upon adversely in a companion case, they need not be again considered.
89 Tex. Crim. 396Barnes v. State (1921)
The opinion states the case.
89 Tex. Crim. 401Ray v. State (1921)
The opinion states the case.
89 Tex. Crim. 402Patterson v. State (1921)
1. —Robbery—Statement of Facts—Transcript. While it may be permissible to consolidate and try simultaneously cases wherein there be separate indictments, yet, in the event of an appeal, the record in the appellate court must be complete in each case, or this court will be compelled to consider and treat such record as not containing statement of facts. Following Gumpert v. State, 88 Texas Crim. Rep., 492. 2. —Same—Precedent—Practice on Appeal—Co-defendant. Where the same questions were before this court in a companion case with reference to the remarks of the court in empanelling the jury and refused testimony, they need not be considered again. Besides, in the instant case, the evidence was fully placed before the jury. Moreover, the rejected testimony was from a co-defendant and inadmissible. 3. —Same—Evidence—Asking Questions of Witness—Rule Stated. This court could not lay down the rule that for the mere asking of a question as to whether or not one accused of crime had not theretofore been arrested or convicted, even though the accused had not taken the witness stand to reverse the judgment on this account, where the evidence is sufficient to sustain the conviction, and there is no error.
89 Tex. Crim. 404Hunt v. State (1921)
1. —Theft of Automobile—Accomplice—Corroboration. Where, upon trial of theft of an automobile, the testimony of the accomplice was sufficiently corroborated, there was no error in the court’s refusal of a requested charge to acquit on this account. 2. —Same—Ownership—Charge of Court. Upon trial of theft of an automobile, the court should have submitted a requested dharge to acquit defendant unless the jury believed from the evidence, beyond a reasonable doubt, that the automobile sold by the defendant belonged to the alleged owner. S.—Same—Requested Charge—Licensed Receipt. The requested charge with reference to the effect of the introduction of the licensed receipt in evidence should have been given in some form. 4.—Same—Misdemeanor—Precedent—Felony—Theft of Automobile. The contention of- defendant that the theft of an automobile is a misdemeanor, regardless of the value of the car, is untenable. 5—Same—Want of Consent—Theft—Insufficiency of the Evidence. Where, upon trial of theft of an automobile, the owner of the alleged property testified in the case and failed to give direct and positive testimony as to his want of consent to the taking of the property, such want of consent will not be inferred from other testimony, and the same is reversible error. Following Caddell v. State, 49 Texas Crim. Rep., 133, 90 S. W. Rep., 1014.
89 Tex. Crim. 407McClure v. State (1921)
Incest—Accomplice—Corroboration—Insufficiency of the Evidence. Where, upon trial of incest, the facts showed that the Cemale in the case was an accomplice, and there was not sufficient corroboration of the accomplice testimony, the conviction could not be sustained.
89 Tex. Crim. 408Joiner v. State (1921)
1.—Receiving Stolen Property—Appeal Bond—Practice on Appeal. Where the defective appeal bond was substituted by a new bond in accordance with our statutes and filed with the clerk below, a certified copy of which was filed in this court, the appeal will be heard upon its merits. 2—Same—Evidence—Escaped Convict—Cross-examination. Where the main State’s witness on cross-examination admitted that he was an escaped convict and that he had never been pardoned, an objection to his testimony should have been sustained, and the failure to do so was reversible error. Following Corzine v. State, 88 Texas Crim. Rep., 340. 3—Same—Accomplice Testimony—Practice in Trial Court—Motion for New Trial. Where no requested charge was submitted on the rule of accomplice testimony, there was no reversible error in the absence of an exception, and the matter cannot be raised by motion for a new trial. 4. —Same—Evidence—Res Inter Alias Acta. Where the testimony submitted did not appear to be res inter alias acta between the parties, there was no error in admitting same. 5. —Same—Other Offenses—Evidence—Practice in Trial Court. Where there was no contention on the part of defendant that the property was not stolen by the party claimed by the State, nor that his connection therewith was innocent, there was no ground for permitting the introduction of testimony of other thefts, and objection to such testimony should have been sustained. 6. —Same—Peremptory Instructions—Practice in Trial Court. Upon trial of receiving stolen property, there was no error in refusing a peremptory instruction on behalf of defendant under the facts in the instant case. x 7. —Same—Rehearing—Convict—Practice on Appeal. Where the record showed that the alleged escaped convict testified after he was shown to be an escaped, unpardoned convict, the judgment must be reversed and the cause remanded.
89 Tex. Crim. 411Davis v. State (1921)
The opinion states the case.
89 Tex. Crim. 416Stone v. State (1921)
1. —Theft of Hog—Evidence—Other Offenses—Good Faith. Where, upon trial of theft of a hog, defendant claimed innocent connection and denied a fraudulent intent, there was no error in permitting the State to introduce testimony of the fact of possession by defendant of- the alleged stolen property, and also his possession at the same time of other stolen property, that is, the hog of another party, as rebutting his claim of possession in good faith, of the alleged stolen hog. Following Hester v. State, 15 Texas Crim. App., 567, and other cases. 2. —Same—Other Transactions—Evidence. Upon trial of theft of a hog, there- was no error in permitting the State to prove by a defense witness what was said relative to the two hogs mentioned, that is, the one described in the indictment and another hog belonging to another party taken at the same time, and that the owners came and took them from the possession of the defendant. 3. —Same—Evidence—Acts and Declarations of Defendant—Harmless Error, Where, upon trial of theft of a hog, the defendant himself testified that another party got a hog which was in the same pen with the one alleged to have been stolen, there was no reversible error in permitting a witness to testify that this party told him of the fact that he got said pig from defendant, this in no event would be more than harmless error. 4. —Same—Evidence—Other Transactions—Good Faith. Upon trial of theft of a hog, where the evidence showed that the hog alleged in the indictment and another, not described therein, were brought to defendant’s premises at the same time and under a claim of right in good faith, and that he let the two owners of said hogs have the same, still claiming that they were his, there was no reversible error in State’s counsel’s remarks to defense’s witness that defendant just voluntarily gave one of the pigs to one man and the other pig to the other owner. 5. —Same—Rule Stated—Evidence—Other Offenses—Intent. Where, upon trial of theft of a hog, the evidence developed that with the hog described in the indictment was taken another, or another was taken by the defendant belonging to a different party, there was no error in developing the res gestae of the transaction, showing the possession and taking of the alleged stolen hog as well as the fact with reference to the taking of the other. This would also be material in rebutting the claim of innocent intent. Following Kelly v. State, 18 Texas Crim. App., 262, and other cases. 6. —Same—Rule Stated—Evidence—Other Offenses. Evidence of other thefts are properly admissible to develop the transaction, to identify, under certain circumstances, the animal in question, to show fraudulent intent, and if the offense be so closely connected that proof of one necessarily discloses the other, there is no reversible error. Following Welhausen v. State, 30 Texas Crim. App. 623, and other cases. 7. —Same—Requested Charges—Other Offenses. Where evidence as to other offenses was correctly admitted, to develop the res gestae, in rebuttal, etc., there was no error in refusing the requested charges not to consider this testimony. 8.—Same—Evidence—Bill of Exceptions—Practice in Trial Court. One may not allow an objectionable question to be asked and speculate as to its answer, or wait therefor before making his objection; however, there was no vice of the answer made to the questions as to certain hog pens built and owned by the defendant.
89 Tex. Crim. 421Shields v. State (1921)
The opinion states the case.
89 Tex. Crim. 425Jones v. State (1921)
1.—Slander—Information—Female—Motion in Arrest of Judgment. An accusation that any unmarried woman was sleeping with a man is a direct charge of unchastity, and when this is coupled with a further allegation that they would never marry as long as they could continue to sleep together without assuming the obligations of the marriage vows is only emphasizing the charge, and there was no error in overruling a motion in arrest of judgment. 2—Same—Evidence—Limiting Testimony—Requested Charge—Charge of Court. Where the court properly limited testimony as to the declarations of defendant with reference to the prosecutrix and the language used toward her, although not identical with that charged in the information, but showing the intent of the defendant, there was no reversible error. Following Whitehead v. State, 39 Texas Crim. Rep., 89, 45 S. W. Rep.. 10, and other cases; nor was there error in the refusal of the court to submit a requested charge which was covered by the main charge. 3. —Same—Privileged Communication—Rule Stated- Where the language used by defendant upon which the prosecution was based was made to a personal friend, this would not make it a privileged communication, and the same was not elicited by inquiry in the scope of the rule. Following Davis v. State, 22 S. W. Rep., 979, and other cases. 4. —Same—Sufficiency of the Evidence. Where, upon trial of slander of a female, the evidence is sufficient to support the conviction, there is no reversible error.
89 Tex. Crim. 427Dibbles v. State (1921)
The opinion states the case.
89 Tex. Crim. 428Theriot v. State (1921)
The opinion states the case.
89 Tex. Crim. 432Ex Parte Gradington and Jackson (1921)
1. —Habeas Corpus—Extradition Proceedings—Certified Copy of .Affidavit. While it is required that the affidavit of the demanding State accompany the requisition by a certified copy of said affidavit or indictment, yet, where in the instant case the warrant issued by the Governor of Texas disclosed on its face, that said requisition was accompanied by a copy of said affidavit, duly certified, etc., by the Governor of the demanding State, it wiil be presumed that the Governor of Texas had before him accompanying the requisition, a certified copy of the affidavit charging relators with an. offense in the demanding State. 2. —Same—Rule Stated—Extradition—Warrant Sufficient. Where the papers upon which a warrant of extradition is issued are withheld by the executive, the warrant itself can only be looked to for the evidence that the essential conditions of its issuance have been complied with, and it is sufficient if it recites what the law requires. Following Ex Parte Stanley, 25 Texas Crim. App., 377, and other cases. 3. —Same—Extradition—Presumption—Warrant—Evidence—Practice in Trial Court. The presumption arising in favor of the legality of the extradition warrant issued by the governor of the fugitive State is not a conclusive one, and a relator always has the right to go behind such presumption, etc.; but the court cannot presume that no affidavit was in the hands of the executive and the burden is upon the relator to show that the recitals in the extradition warrant were not true.
89 Tex. Crim. 438Banks v. State (1921)
1.—Intoxicating Liquors—Dean Act—Indictment—Constitutional Law—Possession. Under Article 16, Section 20, of the State Constitution as amended, the prohibition of possession of certain intoxicating liquors may be enacted by the Legislature, in which article it is declared that intoxicating liquors are subject to the general police power of the State, etc., and there was no error in overruling a motion to quash on this ground, or on any of the grounds urged in the motion to quash. Following Ex Parte Gilmore, 88 Texas Crim. Rep.. 529. 2—Same—Argument of Counsel—Intoxicating Liquor—Whisky. This court has often held that it may be assumed in the charge to the jury that whisky is intoxicating liquor, and there was no reversible error in assuming this in the argument of the county attorney. 3.—Same—Sufficiency of the Evidence—Possession—Charge of Court. Where, upon trial of a violation of the Dean Act, the proof showed that the defendant’s possession of the intoxicating liquor was not for one of the purposes excepted by the statute, there was no error in refusing a peremptory instruction to acquit, and the evidence was sufficient to sustain the conviction under a proper charge of the court.
89 Tex. Crim. 441Giles v. State (1921)
1. —Murder—Continuance—Diligence—Materiality of Testimony. Where, upon trial of murder, the application for continuance showed sufficient diligence and the materiality of the alleged absent testimony, the same should have been granted and the refusal to do so was reversible error. 2. —Same—First Application for Continuance—Rule Stated. In a first application for continuance in the instant case, the real issue which the State was authorized to make in its contest was not the truth of the absent testimony but the diligence to secure the same. Following Steel v. State, 55 Texas Crim. Rep., 556, and other cases. To be diligent it is not required nor expected that the impossibility should be accomplished. And in the instant case diligence to procure the absent witnesses was sufficient. It does not always happen that the absence of a complete diligence would justify the- trial court in overruling che motion for new trial. Following Day v. State, 62 Texas Crim. Rep., 452, and other cases.
89 Tex. Crim. 447McGowen v. State (1921)
The opinion states the case.
89 Tex. Crim. 448Bean v. State (1921)
Murder—Threats—Self-defense—Requested Change. Where, upon trial of murder, there was evidence of threats accompanied by a demonstration, but in the absence of a requested charge correcting the omission of the main charge upon this phase of the case, and under the peculiar facts of the instant case, which showed that death appeared to result from injuries inflicted by the defendant, after deceased had fled from the premises, there was no reversible error.
89 Tex. Crim. 450Hill v. State (1921)
The opinion states the case.
89 Tex. Crim. 454Roberts v. State (1921)
1. —Assault to Murder—Continuance—Want of Diligence—Subpoena in Other Case. Diligence to procure the attendance of an absent witness is not established by showing that in another case against the accused, pending in the same court, a subpoena for the witness had been issued; but even if the diligence was not wanting, the abuse of the trial judge’s discretion in overruling the application is not apparent; it being conceded that the mental derangement of defendant was an exception, it was his burden to prove that it prevailed at the time the offense was committed, and this could not be shown by the alleged absent testimony. Following Hunt v. State, 33 Texas Crim. Rep., 252, and other cases. 2. —Same—Evidence—Former Testimony—Rule Stated—Defendant as Witness- The rule prevailing in this State is that, where one upon the trial of his case voluntarily becomes a witness and testifies to facts which are relevant and material, they may be used against him in a re-trial or on the trial of another case involving the same transaction. Following Williams v. State, 88 Texas Crim. Rep., 87, and other cases. Distinguishing Somers v. State, 54, Texas Crim. Rep., 475. 3. —Same—Evidence—Insanity—Act of Defendant—Opinion of Witness. There was no error in permitting the sheriff to describe the demeanor of the defendant at the time of his arrest. This testimony was admissible as bearing upon the issue of insanity, nor to give his opinion based upon the conversation with the defendant and his conduct while in his custody touching his insanity. Following Burt v. State, 38 Texas Crim. Rep. 397, and other cases. 4. —Same—Evidence—Former Testimony—Rule Stated—Rehearing—Witness- If an accused, not under arrest or as a witness, makes a statement of a criminative character it may be used against him in any prosecution wherein it may become pertinent. Distinguishing Mathis v. State, 84 Texas Crim. Rep., 514.
89 Tex. Crim. 459Spears v. State (1921)
1. —Keeping Disorderly House—Assignation House—Sufficiency of the Evidence. Where, upon trial of keeping a disorderly house, the evidence was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Statutes Construed—Assignation House—Disorderly House. If there be mutual appointment between the parties to the sexual intercourse, or an appointment made without such mutuality by another party, and such appointment be fo, the purpose of sexual intercourse, the place of such intercourse will become legally an assignation house and hence a disorderly house, no matter if it be a house, room, or simply a place, Following Stokeley v. State, 37 Texas Crim. Rep., 638. 8..—Same—Definition of Offense—Sufficiency of the Evidence. Under the Statute, if the proof show that defendant directly, or for another, kept, or was concerned in keeping, or aided or assisted, or abetted the persons who did keep said house by making appointments with men for the purpose of sexual intercourse with the women in said house, he would, be guilty as charged; and where the evidence showed that the defendant was guilty under this construction of the statute, the conviction was sustained.
89 Tex. Crim. 462Allen v. State (1921)
1—Gaming—Statutes Construed—Felony—Misdemeanor—Precedent. In Article 559, Penal Code, it is made a felony for one knowingly to permit his premises to he used as a place for the purpose of being used as a place to bet, or to permit gambling, etc., and an indictment which was drawn under Article 572, Penal Code, will not support a conviction for felony, and the prosecution must be dismissed. Overruling Robertson v. State, 70 Texas Crim. Rep., 310. Following Simons v. State, 56 Texas Crim. Rep., 339. 2—Same—Statutes Construed—Precedent. Article 572, Penal Code, was not repealed by the enactment of Article 659, Penal Code, and are not in conflict with each other. Following Francis v. State, recently decided.
89 Tex. Crim. 464Walden v. State (1921)
1. —Aggravated Assault—Intent—Presumption, of Innocence. Where, upon trial of aggravated assault, upon the son of defendant, seven years old, the latter testified that defendant hit him on the jaw with his fist and kicked him with his foot, and there was no further description of the occurrence, this did not carry with it the presumption of physical injury or immoderate punishment, and the presumption of innocence would he in defendant’s favor. Following Hubbard v. State, 56 Texas Crim. Rep., 274. 2. —Same—Evidence—Other Offense—Other Transaction. Where, upon trial of aggravated assault committed by defendant upon his seven-year-old son, testimony of another transaction, wherein the defendant assaulted his son at a different time and place and in no wise connected with it or related to the assault alleged to have been committed in the instant case, was inadmissible and reversible error, and will not be admitted on the issue of intent, in the instant case. 3. —Same—Parent and Child—Moderate Correction—Restraint—Burden of Proof. A father has the right of moderate correction of his child, and it is incumbent upon the State in every case where such parent is charged with an aggravated assault upon his child, and the facts do not affirmatively make it beyond question that such assault was of such character as to remove it from the possible domain of corrective punishment, to show that the violence alleged was not in restraint, etc., and the court should instruct the jury that the proof must show beyond a reasonable doubt that the violence inflicted was not for the purpose of restraint or correction. Following Dowlen v. State, 14, Texas Crim. App., 51.
89 Tex. Crim. 467Deisher v. State (1921)
1—Gaming—Precedent—Practice on Appeal—Statutes Construed. Article 572, Penal Code, and Article 559, Penal Code, are both in effect and are not in conflict, and a construction of these Statutes was fully set out by this Court in Francis v. State, No. 5775, this day decided, and under which opinion the instant case must be reversed. Overruling Robertson v. State, 70 Texas Crim. Rep., 307; Stevens v. State, 70 Texas Crim. Rep., 565. Following Simons v. State, 56 Texas Crim. Rep., 339. 2—Same—Statutes Construed—Allegation and Proof. Before a conviction for a felony under Article 559, P. C., can be sustained, if the charge be for permitting, the allegation and proof must show that the owner of property or premises, etc., knew it was being used, etc., for gaming etc.; and if the charge be for renting, the proof must show that the accused rented, etc., for the purpose of being used as a place for gaming etc. 3.—Same—Different Counts in Indictment—Practice on Appeal. Where a count in the indictment has been abandoned, the defendant cannot, upon a subsequent trial, be prosecuted thereunder, and where the count submitted to the jury failed to charge that the premises alleged to have been rented were appurtenances to a public place, which allegation seems necessary, under Article 572, P. C., the judgment is reversed and the cause dismissed.
89 Tex. Crim. 469Hardy v. State (1921)
The opinion states the case.
89 Tex. Crim. 474Vogel v. State (1921)
Malicious Mischief—Sufficiency of the Evidence. Where, upon trial of killing a cow with intent to injure the owner, the evidence sustained the conviction, there is no reversible error.
89 Tex. Crim. 475Armstead v. State (1921)
The opinion states the case.
89 Tex. Crim. 478Searcy v. State (1921)
1. —Robbery—Statement of Facts—Practice on Appeal—Presumption. This court cannot consider the statement of facts filed in one case in the disposition of another; if appellant was not able to pay the stenographer for the preparation of a statement of fact, the law has provided a way in which he may protect himself, and in the absence of a statement of facts only fundamental error will be considered; and every presumption will be allowed in favor of the regularity of the conviction. 2. —Same—Statement of Facts—Charge of Court—Practice on Appeal. In the absence of a statement of facts, it is impossible for this court, to say whether the trial court committed error in his refusal to give requested charges, and it will be presumed that the court’s action in refusing special charges of the court is correct. 3. —Same—Copy of Indictment—Foreman of Grand Jury. Where the copy of the indictment attached to appellant’s motion that be' had not been served with a true and correct copy of the indictment appeared not to have been signed by the foreman of the grand jury, but the bill of exceptions nowhere stated that the original indictment on file was signed by the foreman, this court cannot consider the alleged variance; besides, it was not necessary to the validity of an indictment that the signature of the foreman appear thereon. 4. —Same—Continuance—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, it is impossible for this court to pass intelligently upon the question of a refusal of the .application for continuance; but it appearing from the record that in .the light of the testimony no error was committed by the court below in overruling the motion for continuance, there was no reversible error. 5. —Same—Evidence—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, this court must presume that the trial court acted correctly in his rulings on the admission and rejection of testimony, and the judgment must be affirmed.
89 Tex. Crim. 480Shoemake and Rollins v. State (1921)
Robbery—Indictment—Assault—Pleading—Motion in Arrest of Judgment. Where tlie indictment for robbery by violence, etc., omitted the allegation that the defendant took the property of the injured party by means of an assault, the same was insufficient on motion in arrest of judgment.-
89 Tex. Crim. 481Jackson v. State (1921)
Issuing Check Intended to Circulate as Money—Insufficiency of the Evidence. Where, upon trial of the violation of Article 514, P. C., for issuing a check circulated as money, the evidence showed that the alleged check was issued for the purpose of ordinary checks to pay a debt and not with the intention that it should circulate as money, the conviction could not he sustained.
89 Tex. Crim. 483Phillips v. State (1921)
Tried below before the Honorable F. D. Love. Appeal from a conviction of theft of chickens; penalty, a fine of $50. The opinion states the case.
89 Tex. Crim. 486Garner v. State (1921)
The opinion states the case.
89 Tex. Crim. 489Thielepape v. State (1921)
The opinion states the case.
89 Tex. Crim. 493Thielepape v. State (1921)
Tried below before the Honorable F. O. McKinsey. Appeal from a conviction of the illegal manufacture, etc., of intoxicating liquors; penalty, imprisonment for one year in the penitentiary. The opinion states the case.
89 Tex. Crim. 499Smith v. State (1921)
The opinion states the case.
89 Tex. Crim. 501Gaines v. State (1921)
Murder—Escape—Practice on Appeal. Where it was shown on appeal from a conviction of murder, by proper affidavit of the officers, that the appellant had made his escape and had not returned to custody, the appeal will be dismissed.
89 Tex. Crim. 502Crisp v. State (1921)
1. —Theft—Sufficiency of the Evidence. Where upon trial of theft, the evidence was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Evidence—Bills of Exception. Where defendant’s bills of exception, appearing in the record on appeal, are not complying with the rule, and were defective in not setting out the evidence objected to, and failed to state the ■ answer of the witness, the same cannot be considered on appeal. 3. —Same—Rehearing—Hearsay Evidence—Sufficiency of the Evidence. There being legal evidence to sustain the conviction, this court would not be authorized to reverse the judgment, even though hearsay evidence should be found in the record, in the absence of a bill of exceptions, and ■ a substantial compliance with the provisions of the statute is necessary. However, the conviction in this case did not rest upon hearsay evidence, and there is sufficient evidence to sustain same.
89 Tex. Crim. 504Ex Parte Cates (1921)
1.—Habeas Corpus—Notice of Appeal. Where the appeal was dismissed for want of notice of appeal, but the record was thereafter amended so as to show such notice, the appeal will be determined upon its merits. 2—Same—Practice on Appeal. Where pending the appeal from a refusal of bail, the defendant was tried and convicted and punishment fixed at less than capital, together with other circumstances in the case, bail is allowed.
89 Tex. Crim. 506Flores v. State (1921)
1.—Murder—Juvenile—Preliminary Affidavit—Age of Defendant—Burden of Proof. Where an affidavit was made in the form suggested by the statute that defendant was a juvenile under the age of seventeen years at the time of the trial, the burden of proof is placed upon the accused, and the fact of his juvenility must be established to the satisfaction of the trial judge, and the evidence being conflicting, there was no reversible error in the judgment against defendant on this issue. 2—Same—Newly Discovered Evidence—Reasonable Diligence—Self-Serving Declarations. Where the alleged newly discovered evidence consisted of a statement by the defendant to the assistant county attorney with reference to his age before that fact became an issue in the case, the same would be self-serving and inadmissible; besides, this fact must have been known to defendant and his counsel before the instant trial. 3.—Same—Death Penalty—Age of Defendant—Charge of Court. Where, upon trial of murder, the defendant urged the defense that he was under the age of seventeen years at the time of the commission of the offense, and that the death penalty could not be inflicted, the burden of such proof was upon defendant and the trial court having submitted a proper charge upon this phase of the case, there was no reversible error. Following Ake v. State, 6 Texas Crim. App., 399, and other cases. 4—Juvenile—Age of Defendant—Sufficiency of the Evidence. Where the question of the age of defendant at the time of the trial was fully submitted to the jury and by them considered in the light of all the testimony, and decided adversely to the defendant’s contention, there was no reversible error. 5. —Same—Argument of Counsel—Practice in the Trial Court. Where the point involved in the testimony that defendant had been convicted of robbery was its effect upon his credibility as a witness, and it not being controverted that he had been convicted of said offense, the inadvertent reference by State’s counsel to same as having been committed with fire-arms, which reference was promptly corrected, is not reversible error. 6. —Same—Evidence—Res Gestae—Principals—Instrument Used- Upon trial of murder there was no error in admitting testimony of the sheriff immediately after the killing and when deceased was in the throes of death, that he found a certain object, which was a sort of a bludgeon, incased in some rags behind a certain radiator near the scene of the homicide. This was part of the res gestae and also testimony bearing upon the question of principals; besides, similar testimony had been admitted already without objection. 7—Same—Charge of Court—Principals—Act of Third Party. Where, upon trial of murder, the overwhelming proof showed defendant’s guilty participation in the homicide, there was no reversible error in the charge of the court wherein he authorized the jury to convict defendant of murder in the event they found that he aided in the killing, though the same was brought about by the act of someone else. 8. —Same—Sufficiency of the Evidence. Where upon trial of murder inflicting the death penalty, the evidence showed that defendant was made a trustee by the man whom he slew, and that he took his life for no apparent reason except a desire to escape imprisonment, there was no reversible error and the conviction was sustained. 9. —Same—Bills of Exception—Argument of Counsel—Requested Charge. Where the qualification of the trial judge of defendant’s bill of exceptions showed that defendant had been guilty of robbery, State’s counsel’s argument in referring to this testimony which inadvertently used the expression that the robbery was committed with firearms, of which there was no support in the evidence, which was promptly corrected by the court, was not reversible error in the absence of a requested instruction.
89 Tex. Crim. 515Boaz v. State (1920)
1__Murder—Continuance—Want - of Diligence—Cumulative Testimony. Where, upon trial of murder, defendant’s application for continuance showed a want of diligence and the absent testimony was but cumulative upon an uncontroverted issue, there was no error in overruling the motion for continuance and the motion for new trial. 2.—Same—Evidence—Husband and Wife—Cross-Examination—Same Transaction. Where, upon trial of murder, the defendant introduced his wife as a witness and proved by her that she had had clandestine correspondence with the deceased, and had met him at a certain hotel and occupied a room with him for several hours with the doors locked, there was no error in permitting the State on cross-examination of the wife to show that at this meeting no criminal conduct took place, as a part of the transaction introduced in evidence by the defendant. 3—Same—Self-defense—Threat—Defendant’s Right to Arm Himself—Charge of Court. Where the court instructed the jury upon the law of self-defense embodying the right to defend against apparent as well as against real danger, and also charged upon defendant’s right to act upon a demonstration manifesting the intent upon the part of the deceased to carry out a threat and in no way abridged the right of perfect self-defense, it was not incumbent upon the court to instruct the jury that defendant had a right to arm himself in anticipation of an attack from the deceased; besides, a requested charge upon this phase of the case was submitted. Following Smith v. State. 81 Texas Crim. Rep., 368, and other cases. 4. —Same—Charge of Court—Self-defense—Retreat—Reasonable Doubt. Where the court instructed the jury that the defendant had the right to use any means at his command to protect himself, and that he was in no event bound to retreat, there was no error in failing to repeat the instruction at the request of defendant, and the same is true with reference to the law of communicated threats, or his failure to instruct the jury in charging on the law of threats to grant the defendant the benefit of reasonable, doubt; the court having instructed the jury with reference to reasonable doubt. Following Simpson v. State, 81 Texas Crim. Rep., 389, and other cases. 5. —Same—Right to Continue to Shoot—Charge of Court. Upon trial of murder the defendant’s testimony raised the issue of self-defense upon previous threats and apparent danger at the time he fired the first shot, and he disclaimed any knowledge of what subsequently occurred, and there was no evidence which required a charge instructing the jury that the defendant had the right to continue to shoot, viewed from his standpoint, there was no error in the court’s failure to instruct on this phase of the case. 6. —Same—Rehearing—Reasonable Doubt—Charge of Court—Article 743, Vernon’s C. C. P. Where, upon trial of murder, no exception was presented to the court’s charge specifically pointing out that the reasonable doubt should have been contained in the various charges on threats and self-defense, as required under Article 743, Vernon’s C. C. P., and the main charge being sufficient on this phase of the case, there was no reversible error. Following Walker v. State, 229 S. W. Rep., 527. Distinguishing Johnson v. State, 29 Texas Crim. App., 150. 7. —Same—Self-defense—Charge of Court—Requested Charge—Standpoint of Defendant. Upon trial of murder, there was no error in refusing a requested instruction instructing the jury that in passing upon the issues of the instant case, it was their duty to place themselves as nearly as they could in the place of the defendant at the time of the homicide, and to view all the attending facts and circumstances as they reasonably appeared to him at the time from his standpoint, and not as they appeared to them; the court having sufficiently covered this phase of the case in his main charge.
89 Tex. Crim. 525Golden v. State (1921)
1. —Exhibiting Gaming Table—Suspended Sentence—Remarks by Trial Judge. Where, upon trial of keeping and exhibiting a gaming table, the defendant asked for a suspended sentence and the jury were out a long time, and after they had been out over forty-two hours the trial court sent for them and asked the jury whether they could reach a verdict, and was told by the foreman that they could not, to which he replied that it was expensive to try these cases and the facts in the case being short and clear, the court could not see why the jury could not reach a verdict, etc., and it appeared that there were two jurors on the jury who held out on the question of suspended sentence and the court had a colloquy with the two said jurors with reference thereto, whereupon he retired the jury and within five minutes thereafter they returned with a verdict of guilty, the same was reversible error. Following Lagrone, v. State, 84 Texas Crim. Rep., 609, and other cases. 2. —Same—Verbal Instructions—Practice in Trial Court. The court seriously doubts the legality of the trial court in any case to verbally instruct the jury when empanelled to try a felony case. Following Gribble v. State, 85 Texas Crim. Rep., 52, and other cases. 3. —Same—Misconduct of Jury—Matters Not in Evidence. Where upon trial of exhibiting a gaming table, the jury discussed in their retirement matters not in evidence upon the trial, the same was reversible error.
89 Tex. Crim. 529Payne v. State (1921)
The opinion states the case.
89 Tex. Crim. 531Chadwick v. State (1921)
1.—Forgery—Suggestion of Defendant’s Name—Practice in Trial Court. Upon trial o£ forgery when the case was called for trial defendant suggested that his name was E. B. Chadwick, and by motion asked that he be prosecuted under said name, there was no error in granting the motion. 2—Same—Charge of Court—Weight of Evidence. Where upon trial of forgery, the court’s charge was on the weight of the testimony, and embraced matters not proper to have been submitted and which were calculated to confuse the issues and encumber the record, the same was reversible error. 3. —Same—Suggestion of Defendant’s Name—Procedure—Issues Not Changed. The suggestion on the part of defendant of his name or the procedure made necessary thereby would not change the issue in a forgery case as to whether the accused, without lawful authority, made a false instrument in writing, etc., and the suggestion of the accused of his name under which he selected to be tried would not settle this issue. 4. —Same—Evidence—Declarations by Defendant—Arrest. On trial of forgery the testimony of the officer, that defendant told him while under arrest and unwarned what his name was, was inadmissible. 5—Same—Other Transactions—Evidence. Upon trial of forgery, testimony of defendant’s transactions with third parties was admissible as affecting his intent, and as showing system. 6.—Same—Defendant’s Name—Practice in Trial Court. Upon another trial, if the contention be that defendant’s name is other than Chadwick, that fact should be fully shown, and the issue relative thereto submitted both affirmatively and negatively.
89 Tex. Crim. 537Venn v. State (1921)
The opinion states the case.
89 Tex. Crim. 538Gainer v. State (1921)
The opinion states the case.
89 Tex. Crim. 541Dodson v. State (1921)
1—Gaming—Keeping Gambling Place—Evidence—Immunity—Plea in Abatement. Where, upon trial of a violation prohibiting the keeping of premises for purposes of gambling, defendant interposed a .plea in abatement in which it was shown that he had been called before the grand jury and required to give testimony, under Article 574, P. C., and that by reason of which he was exempted from prosecution, the plea should have been sustained. Following Griffin v. State, 43 Texas Crim. Rep., 432. 2.—Same—Evidence—Declarations by Defendant—Justice of the Peace. Where the record on appeal showed that the time the statement was made by defendant before a justice of the peace, he was under suspicion and under investigation, touching the offense upon which the instant prosecution is based, and such statement was not reduced to writing, the same is inadmissible in evidence. Following Phillips v. State, 86 Texas Crim. Rep., 626, and other cases.
89 Tex. Crim. 544Brent v. State (1921)
1.—Murder—Reproduction of Testimony—Jurisdiction—Removal of Witness. Where the testimony of a witness given at a former trial was reproduced upon the instant trial, and it was shown that he had removed beyond the jurisdiction of the court, there was no reversible error. Following Robertson v. State, 63 Texas Crim. Rep., 216. vi. —Same—Temporary Absence of Witness—Predicate—Residence. Where upon trial of felony, it appears that the witness is only temporarily absent from the State, the predicate would not be sufficient for the introduction of former testimony, but when residence is shown as outside of the state, and the return to the jurisdiction is indefinite, no reason would appear for tne refusal of such evidence. 5.'—Same—Evidence—Reputation. Upon trial of murder, there was no error in rejecting testimony that defendant bore the reputation of being a loyal, efficient, faithful, and obedient officer of the city. 4,—game—Evidence—Custody—Unwarned Statement—Rule Stated—Witness. The introduction of testimony of what was said and done by defendant while in jail and unwarned, and which was of a material character, was reversible error, and such testimony cannot be used to impeach or contradict defendant in the event he becomes a witness in his own behalf. Following Morales v. State, 36 Texas Crim. Rep., 234, and other cases.
89 Tex. Crim. 547Meisner v. State (1921)
The opinion states the case.
89 Tex. Crim. 550Searcy v. State (1921)
1—Robbery—Foreman of Grand Jury—Service of Indictment—Rule Stated. It is the settled law of this State that the signature of the foreman of the grand jury to an indictment is a matter of form, and its omission will not invalidate the indictment or the service upon defendant of a copy of the indictment otherwise correct. 2. —Same—Continuance—Want of Diligence—Date of Subpoena. Sending a subpoena, to the witness would not be diligence, and the date of the issuance of such subpoena should be stated, and to whom delivered, and where the application did not comply with the requirements of the statute, the same was correctly overruled. 3. —Same—Principals—Charge of Court—Requested Charge. An acting together in the robbery of several persons would make the participants guilty, without proof of any particular agreement at one of the injured parties, and if the weapon used in the assault was a pistol, proof would not be necessary that it was agreed among the alleged principals that a pistol should be used, and there was no error in refusing the requested charges. Following Ross v. State, 60 Texas Crim. Rep., 547. 4. —Same—Evidence—One Transaction—Other Transactions. Where, upon trial of robbery, the two transactions were so closely connected as to make it apparent that the men who were engaged in one were engaged in the other, there was no error in admitting testimony material to the development of the entire transaction. b.~ -Same—Evidence—Corroboration. Where, upon trial of robbery, several parties were injured who were alleged to have "been robbed, there was no error in admitting testimony that witnesses saw them about the time or shortly after the alleged robbery; in corroboration of the testimony of the injured parties. 6. —Same—Evidence—Exhibition of Wound. On trial of robbery, there was no error to permit the State’s witness to exhibit to the jury the scars upon his head which he stated were inflicted by his assailant in the alleged robbery. 7. —Same—Identification—Evidence—Sufficiency of the Evidence. Where, upon trial of robbery, the evidence sufficiently identified the defendant, in making the assault, and otherwise was sufficient to support the conviction, there is no reversible error.
89 Tex. Crim. 553Roach v. State (1921)
The opinion states the case.
89 Tex. Crim. 555Parker v. State (1921)
1-—Manslaughter—Argument of Counsel—Suspended Sentence. Where, upon trial of murder and a conviction of manslaughter, State’s counsel, in his argument to the jury, told them that defendant had asked for a suspended sentence and that they should consider such fact as affecting his guilt or innocence, the same was reversible error. Following Tamaya v. State, 230 S. W. Rep., 146. 2.—Same—Newly Discovered Evidence—Practice on Appeal. Where the judgment is reversed and the cause remanded, for other reasons, the question of newly discovered evidence, etc., need not be considered on appeal.
89 Tex. Crim. 556Carlson v. State (1921)
Pure Food Law—Information—Constitutional Law—Police Power. Where defendant was charged with a violation of the pure food law, Acts of the Thirty-Fifth Legislature, and the information failed to allege that any regulation had been made or promulgated, attempting to make unlawful the acts which are described in the pleading, the same was insufficient, and it is not necessary to discuss the constitutionality of the law. Following Ex parte Leslie, 87 Texas Crim. Rep., 476.
89 Tex. Crim. 558Spain v. State (1921)
The opinion states the case.
89 Tex. Crim. 560Williams v. State (1921)
The opinion states the case.
89 Tex. Crim. 563Seebold v. State (1921)
1. —Theft of Automobile—Indictment—Words and Phrases-7-Motion to Quash. Where the two words in the indictment complained of could be entirely eliminated therefrom and still a complete offense be charged therein, and the permitting them to remain in no wise rendered the indictment bad, there was no error in overruling the motion to quash. 2. —Same—Evidence—Declarations of Defendant—Self-servinig Statements. While a State’s witness was testifying he was asked upon cross-examination to tell what, if any, statement the defendant made to him at the time he arrested him with the car, and the witness answered that defendant said he thought the officer was mistaken in the man, etc., and thereafter defendant attempted to introduce an additional statement of defendant which was made about an hour after his arrest, in which he said he did not steal the car, etc., there was no reversible error in excluding the latter statement as a self-serving declaration. 3. —Same—Rule Stated—Declarations by Defendant—Res Gestae, When. The general rule is that what the accused said, on the discovery of the goods with him, is admissible, in his favor if made instantaneously and without opportunity of concoction, as part of the res gestae, and such explanation is equally admissible so long as it is made when his right to the property was first questioned; but it is not admissible where it appears that he had opportunity to concoct a self-serving story. Following Taylor v. State, 15 Texas Crim. App., 359. í.—Same—Explanation of Possession—Charge of Court—Form of Charge. Where, upon trial of theft of an automobile, the court submitted a proper charge upon the explanation of possession of property recently stolen, a contention by the defendant that the court should have said in his charge: “consistent with his innocence as charged in the indictment” etc., was untenable and meaningless; and although the charge recommended in Wheeler v. State, 38 Texas Crim. Rep., 71, has been followed by the courts; it is believed that a simple charge on the facts of such possession is the proper form, and there was no reversible error in the instant case. 5. —Same—Principals—Charge of Court—Requested Charges. Where, upon trial of theft of an automobile, the court’s charge on principals safe-guarded defendant’s rights at every point touched by the refused charges, there was no error in the refusal of these requested charges upon principals. 6. —Same—Argument of Counsel—Practice on Appeal. Where the reference by the State’s attorney as to what other juries had done or not done was improper, yet where the court gave a written instruction to the jury not to consider the argument, there was no reversible error. 7. —Same—Rehearing—Practice on Appeal. Where the motion for rehearing consisted merely of a restatement of .the various assignments which had been disposed of in the original opinion and no new proposition was advanced, the same is overruled.
89 Tex. Crim. 572Russell v. State (1921)
The opinion states the case.
89 Tex. Crim. 577Jones v. State (1921)
The opinion states the case.
89 Tex. Crim. 584Shipp v. State (1921)
1. —Unlawfully Catching Fish—Information. Where, upon trial of unlawfully catching fish, etc., the information was sufficient to charge such offense, under the act of the Thirty-sixth Legislature, Chapter 73, Section 35 of said act, there was no reversible error in overruling a motion to quash. 2. —Same—Criminal District Court of Bowie County—Jury and. Jury Law. Where the defendant was tried for a misdemeanor and convicted in the Criminal Court of Bowie County, before a jury composed of six men, the judgment must be reversed and the cause remanded. Following Rochelle v. State, 232 S. W. Rep., 838.
89 Tex. Crim. 585McGoldrick v. State (1921)
1. —Burglary—Ownership—Corporation—Partnership—Variance. If the real ownership of property be in a corporation, but the property in the possession of an individual, who has care control, and management of same, it will satisfy the law to name him as the owner. Neither would there be variance in the allegation and proof of ownership of either member of a partnership. Following Bailey v. State, 18 Texas Crim. App., 426, and other cases. 2. —Same—Evidence—Res Gestae—Bill of Exceptions. Where the bill of exceptions did not disclose whether the testimony objected to was not res gestae and, therefore, not admissible, with reference to defendant’s declaration in connection with his arrest and the finding of the stolen property, or that such testimony was not admissible upon other grounds, there was no reversible error. Following Manning v. State, 51 Texas Crim. Rep., 214, and other cases.
89 Tex. Crim. 587Cone v. State (1921)
1.—Forgery—Comparison of Hand Writing—Requested Charge. Where, upon trial of forgery, there was evidence with reference to the comparison of handwriting concerning the alleged forged document, both by the experts and the jury themselves, there was no error, as such comparison of handwriting may be made by the jury as well as by experts, and the jury are the judges. of the credibility of the witnesses as well as the facts proven. It was, therefore, no error in refusing a requested charge to take these issues from the jury by means of a peremptory instruction. 2. —Same—Venue—Requested Charge—Statutes Construed. Article 235, C. C. P.. provides that a prosecution for forgery may be maintained in any county in which the alleged forged instrument is used or passed, and the undisputed testimony showing that the alleged check was used by the defendant in the county of the prosecution, said county had venue of the offense. 3. —Same—Evidence—Expert Testimony—Comparison of Handwriting. Where, upon trial of forgery, the defendant’s witness had qualified himself as to his knowledge of defendant’s handwriting sufficiently to enable him to testify that a given instrument was not drawn by the defendant, a refusal of .the court to permit him to do so was reversible error. Following Bratt v. State, 38 Texas Crim. Rep., 121, and other cases. 4. —Same—Misconduct of Jury—Practice. on Appeal—Discretion of Court. In- the absence of the testimony heard upon the question of misconduct of the juror, this court will presume that the trial court’s judgment was supported by the testimony heard, and that he correctly overruled the motion for new trial on question of misconduct of the jury. 5.—Same—Sufficiency of the Evidence—Practice on Appeal. While this court is unable to state that the judgment of conviction is not supported by the evidence, yet on account of the error in not admitting the testimony of defendant’s expert witness on handwriting, the judgment must be reversed and the cause remanded.
89 Tex. Crim. 592Rochelle v. State (1921)
The opinion states the case.
89 Tex. Crim. 597Chandler v. State (1921)
1. —Intoxicating Liquors—Illegal Manufacture—Accomplice—Sufficiency of the Evidence. Where, upon trial of the unlawful manufacture of intoxicating liquors, the conviction depended upon accomplice testimony, which is sufficiently corroborated, there is no reversible error. 2. —Same—Corroborative Testimony—Rule Stated. It is not necessary that the corroborative testimony be sufficient in and of itself to convict. The law only requires that the corroborative evidence tends to connect the defendant with the commission of the offense, and such corroboration may be either by circumstantial or positive testimony. Following Pope v. State, 81 Texas Crim. Rep., 54. 3—Same—Rehearing—Practice on Appeal. Where appellant’s motion tor rehearing is largely a restatement of the questions decided in the original opinion, and no error was committed in said original opinion, the motion for rehearing is overruled.
89 Tex. Crim. 599Chandler v. State (1921)
1. —Intoxicating Liquors—Posssession—Accomplice. Where, upon trial of unlawful possession of intoxicating liquors, one of the State’s witnesses was an accomplice as a matter of law, and his uncorroborated testimony would not support a conviction, but the other State’s witness, whose testimony tended to connect the defendant with the commission of the offense and who was not an accomplice as a matter of law, and no requested charge to submit this question of fact to the jury appeared in the record on appeal, the jury were privileged to find that said last witness was not an accomplice, and the conviction was sustained. 2. —Same—Rehearing—Former Jeopardy—Distinct Offenses. Selling intoxicating liquor is a distinct offense from possessing such liquor under the Dean Law. The two acts, that is, selling and possession, are separate acts under the law, and there was no error in the court’s failure to submit the question of former jeopardy in the instant case, although defendant had been convicted for the sale of such intoxicating liquor. Distinguishing Thomas v. State, 230 S. W. Rep., 159. 3. —Same—Accomplice Testimony—Buie Stated. Upon trial of having unlawful possession of intoxicating liquors, there was no error in failing to charge on accomplice’s testimony where the record showed that appellant was in possession of other liquor than that sold and about which the accomplice testimony was admitted in evidence. 4. —Same—State and Federal Law—Precedent—Conflict of Law. Where the contentions relative to the apparent conflict between the State and national liquor laws have been heretofore adversely decided to defendant’s contention, they need not be again considered.
89 Tex. Crim. 603Stiles v. State (1921)
1. —Theft of Cattle—Venue. Where, upon trial of theft of cattle, there was evidence that the animal in question was fraudulently taken in the County of the prosecution, there was no error in refusing a requested charge to peremptorily instruct the jury to return a verdict of not guilty on the ground that the venue was not proven. 2. —Same—Evidence—State’s Witness—Credibility of Witness. Where, upon trial of theft of cattle, defendant claimed that he bought the animal in question from the State’s witness, who had turned State’s evidence, and who denied the sale to the defendant, and any guilty connection with the animal, the defendant should have been allowed to show that said State’s witness was endeavoring to manufacture testimony with reference to the said animal, and refusal to permit him to do so was reversible error. 3—Same—Requested Charge—Receiving Stolen Property—Theft. Where, upon trial of theft of cattle, the defense, testimony raised the issue of receiving stolen property, the court should have submitted a requested charge that theft and receiving stolen property were separate and distinct offenses, and that a party could not be tried for one and convicted of the other. 4.—Same—Change of Court—Weight of Evidence. A requested charge that possession alone of recently stolen property is not sufficient to warrant a conviction was correctly refused, as upon the weight of the testimony. 5—Same—Accomplice—Charge of Court. Where, upon trial of theft of cattle, the evidence raised the issue of accomplice’s testimony, a refusal of the requested charge thereon was reversible error. 6.—Same—Venue—Charge of Court. Where the question of venue was raised, the court should have submitted an appropriate charge on this phase of the case, and refusal to do so was reversible error.
89 Tex. Crim. 606Smith v. State (1921)
The opinion states the case.
89 Tex. Crim. 609Thomas v. State (1921)
The opinion states the case.
89 Tex. Crim. 611Burton v. State (1921)
The opinion states the case.
89 Tex. Crim. 613Walling v. State (1921)
1. —Working Public Road—Road Overseer—Superintendent—Summons. Where defendant contended for failure to work the public road that the summons, in the instant case, having been made under the direction of the road overseers instead of the superintendent, the same was illegal, and that he need not respond to such notice, held, the same was untenable. 2. —Same—Statutes Construed—Road Overseer—Superintendent. The Act of the Thirty-fifth Legislature, in which the office of superintendent of public roads and bridges is created does not supersede the general road law in the appointment of road overseers. 3. —Same—Invalid—Physical Inability—Public Road. Where, upon trial of failure to work the public road, the defendant claimed that he was physically unable to perform labor upon the public road by reason of cancer of the intestines, and introduced testimony to support his contentions, he came within the scope of the term invalid as used in the statutes, and the court should have submitted a requested charge, instructing the jury to acquit if they found that the defendant was afflicted as aforesaid.
89 Tex. Crim. 615Turner v. State (1921)
The opinion states the case.
89 Tex. Crim. 617Bennett v. State (1921)
The opinion states the case.
89 Tex. Crim. 618Taylor v. State (1921)
1. —Swindling—Other Prosecutions—Practice in Trial Court—Suspended Sentence. Where, upon trial of swindling, preliminary to the trial defendant by motion sought to have another case which was pending against him in the same court disposed of before going to trial in the instant case, claiming that the other case was founded upon fictitious allegations and was for preventing a verdict recommending a suspended sentence in the instant case, held: that the motion was properly overruled, none of said facts having been established by proof; and besides, said other case would have been no impediment to the suspended sentence law. 2. —Same—Variance—Sum of Money Alleged in Indictment. Where, upon trial of swindling, it was charged in the indictment that the sum of money obtained by false representation, etc., was the sum of $1374.20, and the proof fixed the amount obtained at $850, this was not a material variance. Following Pones v. State, 43 Texas Crim. Rep., 201, and other cases. It is not essential that the proof establish that the quantity of money obtained was that named in the indictment. 3. —Same—Evidence—Circumstantial Evidence—Other Testimony. Where, upon trial of swindling, the facts disclosed that the defendant represented to the railway agent in Louisiana that he possessed and desired to ship to a point in Texas a carload of pipe which was situated at a switch near said station, and the car having been placed for him he reported to said agent that it was loaded, and obtained from him a bill of lading showing the shipment, there was no error in admitting testimony that the car which the defendant represented to said agent that he loaded with pipe was in fact not loaded at all, and circumstances were available to the State to prove this issue; besides, the same facts were proved by another witness. 4. —Same—Circumstantial Evidence. Upon trial of swindling, by means of acquiring a bill of lading for a certain car in the railway service claimed to have been loaded with pipe, there was no error in admitting testimony of the conductor describing the conditions surrounding said car and indicating that it had not been loaded. 5. —Same—Rehearing—Fraudulent Representations—Bill of Lading—Telegram. Upon trial of swindling based upon the false representations of having loaded a certain railway car with merchandise and receiving a bill of lading therefor from the railway agent, upon which bill of lading the defendant received a certain sum of money from a Texas Bank, there was no error in permitting the State to show that the representations made by the defendant to the bank based on said bill of lading and upon a forged telegram were of such false and fraudulent character as to make them admissible and support the allegations in the indictment. 6. —Same—Jurisdiction—Other Jurisdiction—Different States. While a prosecution for this offense of swindling may have been had in another State, this would not prevent the courts of this State from having jurisdiction in the instant case. 7. —Same—Recovery of Money—Detection of Crime—Fraudulent Intent. The fact that the national bank from which the money was obtained by false representations recovered from defendant and his kindred the money paid by it to him, and was not in fact deprived of its property is not a defense, as this restitution of property took place after defendant’s detection in the crime. 8. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of swindling, there was direct testimony as to the falsity and fraudulent character of defendant’s representations in receiving the alleged sum of money, there was no error in the court’s failure to charge on circumstantial evidence. 9. —Same—Bills of Lading—False—Representation. The contention of appellant that the two bills of lading involved were in fact issued by the agents of the respective railway company and were therefore genuine instruments, and that the State was estopped from setting up the false and fraudulent character of representations with reference to same, is untenable,
89 Tex. Crim. 623Fowler v. State (1921)
1. —Murder—Argument of Counsel—Practice on Appeal—Bill of Exceptions. It is well settled that it must appear in the bill of exceptions making it reasonably apparent what the error was, and in case of argument of counsel the bill should affirmatively show that such argument is not in answer to something said by counsel for the accused, or was not based on some evidence in the record, and that it was hurtful to the accused and not properly before the jury, etc., Following O’Neal v. State, 66 Texas Crim. Rep., 460, and other cases; and where this is not shown on appeal, there is no error. 2. —Same—Misconduct of Jury—Rule Stated—Practice on Appeal. Where it was complained that a reference was made by one juror to defendant’s failure to'testify, and the court heard evidence in support of this, hut the hill of exceptions was not filed until long after the adjournment of the trial setting up this matter, the same cannot be considered on appeal. Following Salazar v. State, 88 Texas Crim. Rep., 209. 3. —Same—Evidence—Bill of Exceptions—Practice on Appeal. A statement of his grounds of objection by defendant is not tantamount to a showing that such grounds are in fact true; and this court has held uniformly that. facts must appear in the bill which show the error complained of. In addition to this defect in the bill, no error appears inasmuch as the trial court sustained the objection of the defendant. 4. —Same—Evidence—Threats—Presumption. There was no error in refusing to allow a witness to testify that defendant was a man of ordinary hearing, and it was a legitimate assumption in the instant case that the alleged threats were made in defendant’s hearing. 5. —Same—Credibility of Witness—Rule Stated. Where the defense witness admitted that he had been indicted and acquitted for murder, and the State asked the witness what was the ground of his acquittal to which he answered: “self-defense,” there was no reversible error, no injury having been shown to the defendant. Following Post v. State, 10, Texas Crim. App.. 579. 6. —Same—Affidavit—Official Stenographer—Practice on Appeal. Affidavits of the official stenographer and clerk of the trial court as to the expiration of the trial term and the length of the time necessary to prepare the statement of facts adduced on re-hearing of the motion for. new trial, to show that the testimony offered on said hearing was not filed during the term time, were proper, in the absence of some showing to the contrary. 7. —Same—Rehearing—Bill of Exceptions—Practice on Appeal. Where the bill of exceptions failed to show any error for the reason set out in the original opinion, motion for rehearing is overruled. ,
89 Tex. Crim. 628Holden v. State (1921)
1. —Murder—Attorney and Client—Representation by Counsel. It is not obligatory upon the courts of this State to appoint counsel for one accused of crime unless he be charged with a capital offense, or it appear that he is insane, or that he desires an application to be presented for his suspended sentence, and abandonment of defendant’s case by his counsel is no cause for a new trial. Following Giles v. State, 68 Texas Crim. Rep., 612. 2. —Same—Rule Stated—Representation by Counsel. Unless deprived of counsel, by the action of the State, or some outside influence over which the accused had no control, failure to be represented by attorney will not avail in an effort to have the judgment of conviction set aside. Following Patton v. State, 62 Texas Crim. Rep., 28, and other cases. 3. —Same—Case Stated—Practice on Appeal. Where it did not appear from the record that appellant was insane, or that he was charged with a capital offense and that his plea of suspended sentence was not prepared and submitted to the jury, there was no reversible error on the contention of appellant that his attorney declined to go on with the case, the record showing that the court did appoint an attorney for the selection of the jury, etc. 4. —Same—Evidence—Declarations by Defendant—Arrest. Where the statements in evidence made by the defendant were not shown to have been made to an officer, or to any person who had defendant in custody, or under such circumstances as would make the same inadmissible, there was no reversible error. 5. —Same—Rehearing—Evidence—Declarations by Defendant. Although it appeared in a motion for rehearing that the statements made by the appellant were made to a justice of the peace, who was likely acting as a tie facto officer, but also that a felony had been committed in his view by appellant before the latter made such statement, and in the absence of any objection made on the trial there was no error in admitting this testimony; besides, the defendant himself testified thereto. 6. —Same—Representation by Counsel—Practice in Trial Court. Where it appeared from the record on appeal that the court learning of defendant’s desire for suspended sentence appointed counsel to prepare a,n application therefor, and appointed another counsel to select his jury, defendant’s contention that he was thereby misled into believing that such counsel would continue their services throughout the case is no ground for reversible error.
89 Tex. Crim. 632Wray v. State (1921)
The opinion states the case.
89 Tex. Crim. 638Eason v. State (1921)
The opinion states the case.
89 Tex. Crim. 646Mobley v. State (1921)
Tried below before the Honorable P. O. Beard. Appeal from a conviction of manslaughter; penalty, three years’ imprisonment in the penitentiary. The opinion states the case.
89 Tex. Crim. 655Tucker v. State (1921)
Carrying Brass Knuckles—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying brass knuckles, the evidence, although conflicting, sustained the conviction, there was no reversible error.
89 Tex. Crim. 657Pinkerton v. State (1921)
The opinion states the case.