91 Tex. Crim.

Volume 91 — Texas Criminal Reports

234 opinions

91 Tex. Crim. 1Snow v. State (1921)
1. —Murder—Charge of Court—Burden of Proof—Reasonable Doubt. Where, upon trial of murder, the theory of the defense was that there were others shooting, and that there was no -concert of action, and the shots which were fired were tired because parties believed the officers were robbers, and that they had no information, that they were peace officers, there was no reversible error in the court’s charge, which, among other things charged the jury that if defendant shot and killed the deceased in order to prevent him from arresting the parties who were running the game, he would be guilty, and in other portions of the charge instructed the jury upon the presumption of innocence and reasonable doubt. 2. —Same—Excessive Force—Peace Officers—Attempt to Arrest. Where, upon trial of murder, the charge of the court submitted imperfect self-defense and perfect self-defense, and limited the right of the officers to arrest, that they could use only such force as was reasonably necessary, there was no reversible error. 3. —Same—Motion for New Trial—Misconduct of Jury—Reputation. Where, upon trial of murder, it appeared in the motion for new trial that outside evidence was considered by the jury in their deliberations, and improper statements in the jury room affecting defendant’s reputation were made, all of which were prejudicial in character, the judgment must be reversed and the cause remanded.
91 Tex. Crim. 9Garcia v. State (1921)
1. —Murder—Plea of Guilty—Practice in Trial Court. Where, upon trial of murder, a reversal was sought upon appeal because of the insufficiency of the evidence, held: that if the appellant regarded the evidence insufficient and desired the question reviewed on appeal he should have withdrawn his plea of guilty and entered the plea of not guilty, Following Alexander v. State, 69 Texas Crim. Rep., 23. 2. —Same—Felony—Amount of Punishment—Statutes Construed. In a case of felony in which the jury has discretion concerning the extent of punishment, it is incumbent upon the State to introduce testimony under the plea of guilty. This is done, however, not upon the issue of justification but to enable the jury to advisedly assess the penalty. Following Terretto v. State, 86 Texas Crim. Rep., 191, and other cases. 3. —Same—Justifiable Homicide—Practice on Appeal. It is not necessary to pass upon the point that under the statutes justifying homicide to prevent theft, appellant’s act was lawful, as the evidence showed the intent, or motive, which impelled the defendant to shoot the deceased would be a question of fact for the jury, and, under the plea of guilty, the supposed lawful intent was eliminated. 4. —Same—Rehearing—Plea of Guilty—Judicial Construction. Where appellant in his motion for rehearing questioned the correctness of the court’s statement as to the effect of the plea of guilty, and referred the court to Harris v. State, 76 Texas Crim. Rep., 126, as not being in harmony with this court’s view, held: that said opinion must be read in the light of the issue before the court, which was the question of insanity. Following Taylor v. State, 88 Texas Crim. Rep., 470. 5. —Same—Justifiable Homicide—Theft—Statutes Construed. On the proposition that defendant was justified in the killing as being a homicide to prevent theft at night under Article 1105, Subdivision 8, P. C., he is referred to the recent case of Espalin v. State, which is adverse to his contention.
91 Tex. Crim. 13Archie v. State (1922)
The opinion states the case.
91 Tex. Crim. 15Smith v. State (1922)
1. —Murder—Juvenile—Principal—Accomplice—Requested Charge — Punishment. Where defendant was tried as an accomplice for murder, and it developed on the trial that her principal, who was her own daughter, was just over thirteen years of age, when the offense was committed, and the defendant raised the question that there could be no accomplice without a principal liable to punishment, inasmuch as the alleged principal was under 18 years of age, and not subject to punishment under the juvenile law, held: that this contention of defendant is untenable, and the court properly declined to submit defendant’s special charge that if said principal was a juvenile she could not be a principal. 2. —Same—Confessions—Guilt of Principal—Accomplice. Where the alleged principal refused to testify to any statement which would incriminate the defendant, there was no error in permitting the State to introduce her confession to establish her guilt as a principal. 3. —Same—Voluntary Confessions—Rule Stated—Response to Questions. The fact that the alleged principal may have been told that it would be better for her to tell it, does not render the confession inadmissible, though the statement may have been made in response to questions; and the fact that interwoven in the confession were expressions connecting the defendant with the acts' of the principal would not render the statement unavailable to the State. Following Walker v. State, 88 Texas Crim. Rep., 389. 4. —Same—Requested Charge—Limiting Confession—Defendant’s Acts. _ Ordinarily this court would think that the charge given by the court limiting the confessions of the principal sufficient to protect same, yet, on account of_ the peculiar wording of the confession interweaving defendant’s acts and directions with those of the confessor, the more specific instruction in the requested charge should have been given. 5. —Same—Requested Charge—Accomplice—Principal—Death of Infant. Where the essence of the crime charged against the accused was that she advised, commanded, or encouraged her daughter to kill her infant by throwing it in the water and drowning it, and there was testimony that the child may have been dead, or that defendant believed it dead, and that she thought that the body of the infant thrown in the water was dead at the time, she could not be guilty as an accomplice in murder by drowning, and the court should have so instructed the jury as requested by defendant’s special instruction, and the failure to do so was reversible error. 6. —Same—Corpus Delicti—Practice on Appeal—Confession—Practice on Appeal. The judgment being reversed and the cause remanded on other grounds, the question of the exclusion of the confession and the corpus delicti need not be discussed.
91 Tex. Crim. 23Martin v. State (1921)
1. —Murder—Evidence—Motive—Jealousy—Rule Stated. Where, upon trial of murder, no evidence of motive was introduced by the State in its opening testimony, and the defendant claimed both insulting conduct to a female relative and self-defense, and it developed in the course of cross-examination of defendant and his witnesses that both the defendant and the deceased had been paying attention to a certain young lady, and defendant denied that he knew that deceased was doing so, and there were circumstances in evidence to support the State’s contention that he did know, there was no error in admitting in evidence testimony to the effect that the deceased had been showing the young lady attention, as jealousy is uniformly regarded as admissible upon the issue of motive. Following Moore v. State, 53 Texas Crim. Rep., 336, and other cases, and this may be shown by circumstantial evidence. Following Kunde v. State, 23 Texas Crim. App. 95. 2. —Same—Evidence—Motive—Defensive Theories. It was not alone to the evidence concerning the attentions of the defendant and the deceased to the young lady that the jury might have looked in rejecting the defensive theories of the defendant, but they could also consider the conduct of the sister of defendant who was the female alleged to have been insulted, and that the same was inconsistent with her declaration that deceased had raped her. 3. —Same—Requested Charge—Seeking Explanation—Self-Defense. Where there was no abridgement or qualification of defendant’s right of perfect self-defense, there was no error in refusing a requested charge that defendant had a right to seek the deceased for an explanation and to arm himself for the occasion. Following Smith v. State, 81 Texas Crim. Rep., 377, and other cases. 4. —Same—Threats—Charge of Court. Where the charge on threats was not subject to any just criticism upon the view that it made defendant’s right to act depend upon the belief by the jury that the threats had in fact been made, there was no reversible error. 5. —Same—Requested Charge—Different Shots Fired—Self-Defense. Where the requested charge proceeded upon the theory that though the defendant made an unprovoked attack upon the deceased justified neither on the theory of self-defense nor manslaughter, and that in this state of mind the first and second shots were fired and death resulted from the third shot, the offense might be mitigated and reduced to the grade of manslaughter if, between the beginning and the end of the difficulty, his mind was rendered by sudden passion incapable of cool reflection, there was no error in refusing the same. 6. —Same—Requested Charge—Cooling Time, Definition of. While the doctrine of cooling time is, that while at the beginning the accused was justifiable, yet that when he killed the danger was passed, but that his passion might have been such as to mitigate the offense, yet, where the requested charge was opposed to that of cooling time, and was predicated upon the idea that though when the defendant began the attack he acted on implied malice, his passion aroused during its progress might reduce the grade of the offense, there was no reversible error in refusing it. Distinguishing Lagrone v. State, 84 Texas Grim. Rep., 609, and Anderson v. State, 87 Texas Grim. Rep., 242. 7. —Same—Cooling Time—Charge of Court—Practice in Trial Court. In view of the issues made, the testimony adduced and the instructions given, the issue of cooling time, if it was in the case, was not of such importance to require the court to instruct upon it, in the absence of a specific exception or a definite request. 8. —Same—Rehearing—Statement of Facts in Opinion. Where the mistake of using certain language in the original opinion evidently occurred in misunderstanding dictation, the correction is made in order that the opinion may speak the facts, although it has no bearing upon the decision of the case. 9. —Same—Motive—Knowledge of Defendant—Circumstantial Evidence. Where it was insisted upon motion for rehearing that this court committed error in holding that the State could properly introduce evidence showing that deceased and appellant had been paying attention to the same young lady, as bearing upon a probable motive for the homicide, because it was not shown by the testimony that appellant was apprised of deceased’s attention, but the record showed that the situation of the parties, the relation existing between them; their living in the same neighborhood; could all be considered by the jury upon the issue of appellant’s knowledge, there was no reversible error.
91 Tex. Crim. 31Gilmore v. State (1922)
1. —Murder—Provoking Difficulty—Charge of Court—Acts of Deceased. Where, upon trial of murder, the evidence showed that the difficulty between the parties did not begin with the blows by defendant, but that the quarrel was initiated by the deceased, the court’s charge on provoking the difficulty, that if defendant just prior to the time he shot and killed the deceased struck the deceased and that he did so for the purpose and with the intent of provoking the deceased to attack him, etc:, was reversible error. Following McCandless v. State, 42 Texas Crim. Rep., 58, and other cases. 2. —Same—Threats—Charge of 'Court—Self-Defense—Requested Charge. Where no reference to threats made by the deceased and communicated to the defendant was made in the charge of the court, either separately or in connection with the paragraph on self-defense, and the charge as requested seeking to correct it, was refused, same was reversible error. Following Penton v. State, 53 Texas Crim. Rep., 323, and other cases. 3. —Same—Charge of Court—Party Acting With Deceased—Requested Charge. Where the conduct of the party acting with the deceased in 'the conflict was such as to require the court upon request to instruct the jury in the manner that they would understand that if viewed from defendant’s standpoint he was in danger of the party acting with deceased, he might embrace both in his defensive efforts should have been given. Following Stacy v. State, 48 Texas Crim. Rep., 95. 4. —Same—Evidence—Res Gestae—Husband and Wife—Silence of Defendant. Upon trial of murder, there was no error in admitting in evidence the statement of defendant’s wife, who exclaimed immediately after the shooting: “You told me you were going to kill him, and now you have killed him,” addressing said remarks to defendant. This was res gestae and not a privileged communication, and in the nature of an accusation in which defendant’s acquiescence might be inferred from his silence. Following Cole v. State, 48 Texas Crim. Rep., 439, and other cases. 5. —Same—Evidence—Declarations and Acts of Defendant—Suspended . ¡sentence. Upon trial of murder,- testimony of circumstances tending to show that defendant was on terms of intimacy with a certain woman referred to by the deceased, in his conversation with defendant’s wife, was admissible on the question of the relations of the parties, but not on the issue of suspended sentence. Following Baker v. State, 87 Texas Crim. Rep., 305.
91 Tex. Crim. 38Rodgers v. State (1921)
The opinion states the case.
91 Tex. Crim. 46Moore v. State (1922)
The opinion states the case.
91 Tex. Crim. 49Ex Parte Thomas (1922)
The opinion states the case.
91 Tex. Crim. 51Spears v. State (1922)
Tried below before the Honorable W. D. Howe. Appeal from a conviction of robbery by firearms; penalty, fifteen years imprisonment in the penitentiary. The opinion states the case.
91 Tex. Crim. 59Bethany v. State (1922)
The opinion states the case.
91 Tex. Crim. 62Ex Parte Mitchum (1922)
From Wise County. Original application for writ of habeas corpus asking release from arrest under an indictment for having in his possession for the purpose of sale intoxicating liquors, etc. The opinion states the case.
91 Tex. Crim. 65Ex Parte Mitchum (1922)
1.—Habeas Corpus—Intoxicating Liquors—Former Jeopardy. Where relator did not claim that he had been tried and convicted, but admits that the prosecution is merely pending, this court will not pass upon said issue upon writ of habeas corpus, as the trial courts are the tribunal in which all issues of fact must be brought to judgment, Following Ex Parte Jennings, 76 Texas Grim. Rep., 116. 2.—Same—Jeopardy—Former Acquittal—Rule Stated—Habeas Corpus. Jeopardy, former conviction or acquittal, constitute defenses which must be proved in the lower court, and the same was not a matter whose sufficiency can be tested by habeas corpus, Following Ex Parte Kent, 40 Texas Grim. Rep., 12, and other cases. 3.—Same—Statutes Construed—Repeal of Law. Relator’s contention, that the law forbidding the manufacture of intoxicating liquor in this State was repealed by the Act of the Special Session of the Thirty-sev.enth Legislature is untenable.
91 Tex. Crim. 67Ex Parte Oates (1921)
From Stephens County. Original application for habeas corpus, asking release under a complaint in a city corporation court for vagrancy. The opinion states the case.
91 Tex. Crim. 68Parker v. State (1921)
The opinion states the case.
91 Tex. Crim. 79Ex Parte Oates (1921)
From Stephens County. Original habeas corpus proceedings asking release from arrest under a complaint in a city Corporation Court for vagrancy under Subdivision E, Art. 634, Vernon’s P. C. The opinion states the case.
91 Tex. Crim. 83Ex Parte Redwine (1921)
From Eastland County. Original habeas corpus proceedings asking release from arrest under a warrant duly issued by the Prison Commission upon proclamation revoking a conditional parole.
91 Tex. Crim. 90Smith v. State (1922)
The opinion states the case.
91 Tex. Crim. 93Ex Parte Andres (1922)
Prom Sabine County. Original Habeas Corpus proceedings, asking release from confinement in the penitentiary for the offense of unlawfully possessing equipment for the manufacture of intoxicating liquor. The opinion states the case.
91 Tex. Crim. 96Carter v. State (1922)
1. —Conspiracy to Swindle—Indictment—Pleading—Completed Acts. The rule in criminal pleading is that in an indictment for a conspiracy, the conspiracy must be sufficiently charged, and cannot be aided by averments by acts done by one or more of the conspirators in furtherance of the objects of the conspiracy, and where the indictment for a conspiracy to swindle did not set out the false pretenses, tokens, and devises agreed to be used to accomplish the purpose or effect the end, and that it was to cheat and defraud in some of the modes made criminal by statute, the indictment is insufficient. 2. —-Same—Case Stated—Conspiracy to Swindle—Indictment. Where the indictment for a conspiracy to swindle did not show that the party alleged to be injured was in any way interested in any land situated in the county named, nor how any representations, false or otherwise with reference to the title to any such lands might cause him to part with any money, and is silent as to what false representation had been agreed upon to be used by the conspirators to induce him to surrender to them any money, and failed to state in what particular the abstract referred to was false or bogus, or how the same was to be used in furtherance of the purpose to procure money from him fraudulently, the same was insufficient.
91 Tex. Crim. 100Moore v. State (1922)
1.—Intoxicating Liquors—¡Possession—Transportation—Argument of Counsel —Allusion to Defendant’s Failure to Testify. There being no other witness who could have raised his voice or testified with reference to the transaction, save the appellant alone, the language of the district attorney, “No living person has raised his voice to deny that Day got the package from defendant’s wagon, but we have proved it by four witnesses,” cannot be regarded in any other light than a direct allusion to appellant’s failure to testify. Following Shaw v. State, 57 Texas Grim. Rep., 474, and other cases. 2. —Same—Charge of Court—Accomplice Testimony. If it be found necessary to charge on the issue of corroboration of accomplice testimony, the form of charge recommended in Brown v. State, 57 Texas Grim. Rep., 570, and other cases, may be followed. 3. —Same—Possession—Statute Repealed." Since the Act of the called session, of the thirty-seventh Legislature it is not an offense to possess intoxicating liquor, except for the purpose of sale. Following Petit v. State, 90 Texas Grim. Rep., 336; and other cases.
91 Tex. Crim. 101Farley v. State (1922)
The opinion states the case.
91 Tex. Crim. 104Cansler v. State (1922)
Intoxicating Liquors—Possession of Equipment. The possession of equipment for manufacturing intoxicating liquor was omitted from the Dean law which operated as a repeal of the provision making such possession illegal, and the Judgment must therefore be reversed and the cause dismissed. Following Petit v. State, 90 Texas Grim. Hep., 336, and other cases.
91 Tex. Crim. 105Allen v. State (1922)
The opinion states the case.
91 Tex. Crim. 106Blackstock v. State (1922)
1. —Assault to Rape—Charge of Court—Definition of Offense. Where the State’s theory of the assault to rape was controverted by defendant and his witnesses, and the latter testified that the familiarity of the defendant consisted in putting his arm around the alleged female, with out protest on" her part, while, defendant denied going to that extent, and the court charged that the laying on of hands with, the specific intent at the time to have carnal knowledge of a woman would be an assault, the same was reversible error. Following Cromeans v. State, 59 Texas Grim. Rep., 622, and other cases. 2. —Same—Chastity of Prosecutrix—Charge of Court. There was no evidence raising the issue as to the want of chastity of the prosecutrix, but the charge complained of was erroneous.
91 Tex. Crim. 107Wooten v. State (1922)
1.—Perjury—Credible Witness—Accomplice—Statuets Construed—Rule Stated. It has been held in previous decisions that within the meaning of the statute, article 806, C. C. P„ an accomplice is not a credible witness; that is, if he was a party with the accused to a conspiracy to give false testimony; but, where the evidence showed that the alleged accomplice was only such by reason of a previous crime of burglary, into which the grand jury was investigating when the defendant testified before it, this does not come under the rule. Distinguishing Conant v. State, 51 Texas Grim. Rep., 612, and other cases. 2.—Same—Charge of Court—Circumstantial Evidence—Credible Witness. If the alleged accomplice in the prior offense of burglary is regarded as a credible witness, the circumstances in the case were sufficient to support the finding by the jury that they furnished strong corroboration within the meaning of the statute and the judgment of conviction would, therefore, be sustained. However, where this theory was not submitted to the jury and they were authorized to convict under the charge of the court, if they regarded the said witness as other than a credible witness, the same was reversible error.
91 Tex. Crim. 111Caples v. State (1922)
The opinion states the case.
91 Tex. Crim. 112Nations v. State (1922)
1. —Aggravated Assault—Credibility of Witness—Fart of Conversation. Under Article 811, Vernon’s O. C. P., when any part of an act, declaration, conversation, or writing, is given in evidence by one party, the whole on the same subject may be introduced by the other party. Following Davis v. State, 85 Texas Grim. Rep., 15. 2. —Same—Discrediting Witness—Rule Stated—Supporting Testimony. When the attempt to discredit a witness advances to where it is in evidence that he has made statements at other times and places at variance from the testimony now given, or that he has been approached by influences which affect his testimony, etc., he may be supported by the introduction of statements made by him similar to those given on the witness stand, and which were made before the approach of such influences, etc. Following Marable v. State, 87 Texas Grim. Rep., 28, and other cases. 3. —Same—Evidence—Insanity—Judgment of Lunacy. Where a lunacy judgment rendered about a year prior to the instant trial was offered in evidence.to disqualify the state’s witness, there was no error to admit testimony of a physician that from his personal knowledge of his treatment of the witness at the insane asylum from which he had been discharged as cured, and as to his mental condition at the time of the alleged homicide, and at the time of the instant trial, and that at all these times the witness was sane. Following Singleton v. State, 57 Texas Grim. Rep., 560.
91 Tex. Crim. 115Williams v. State (1922)
1. —Murder—Transcript—Caption—Practice on Appeal. Where the caption ot the transcript -showed that the court had convened and adjourned in 1920, and the papers filed in the case bore the file mark of 1921, the same was totally defective; however, it having been corrected, by an amended transcript, the appeal is heard upon its merits. 2. —Same—Verdict—Reforming Judgment. Where the clerk did not copy the verdict as returned, and made certain changes therein, held: that this should not have occurred; but, as the verdict which was actually returned supported the judgment, when properly reformed, there was no error and the same is so reformed. 3.—Same—Statement of Facts—Bills of Exception—Extension of Time. Where the statement of facts and the bills of exception were not filed in the lower court until after the expiration of ninety days from adjournment, the same cannot be considered on appeal. Following Romero v. State, 72 Texas Crim. Rep., 105, and other cases.
91 Tex. Crim. 118Moore v. State (1922)
1. —Murder—Justifiable Homicide—Rape—Attempted Rape—Requested Charge- Where, upon trial of murder, the defense’s testimony showed that the defendant caught the deceased in the act of having one arm around defendant’s daughter and the other hand under her clothes, and that he was about to commit sexual intercourse upon her, she being under the age of 18, and that defendant killed the deceased to prevent the attempted rape, the requested charge on that phase of the case should have been submitted, although it was not in proper form. Following Joy v. State, 57 Texas Grim. Rep., 102, and other cases. 2. —Same—Evidence—Cross Examination—Suspended Sentence. Where, upon cross-examination of the defendant, she was asked by the prosecuting attorney if it was not a fact that she had pulled J. Vinson’s hair, which she denied, whereupon the State called said Vinson as a witness and he testified that some six or seven years before the trial, defendant had pulled his hair. This testimony was inadmissible, and could not be used under a plea of suspension of sentence. 3. —Same—Reputation—Rule Stated—Suspended Sentence—Specific Acts. The suspended sentence law has riot changed the rule touching the manner of- proving general reputation, and under the general rule proof of reputation cannot ordinarily be made by specific acts.
91 Tex. Crim. 121Smith v. State (1922)
91 Tex. Crim. 121Smith v. State (1922)
Bigamy—Evidence—-Bill of Exceptions—Practice on Appeal—Motion For 'New Trial. In the absence of a bill of exceptions, complaint of the action of the court in ruling upon the evidence in the motion for new trial will not suffice. Following Clifton v. State, 70 Texas Grim. Rep., 346.
91 Tex. Crim. 122Andrews v. State (1922)
1. —Murder—Statement of Facts—Bill of Exception. In the absence of a statement of facts or bills of exception, there being a valid indictment, and the proceedings appear to be regular, the judgment below must be affirmed. 2. —Same—Rehearing—Attorneys and Others—Interested—Notice. This court again calls attention of attorneys interested in cases pending in this court, that in order to accommodate them and conduct the business of the court in an orderly and prompt way, rules were adopted many years ago directing the clerk to notify attorneys interested when cases were set for submission. No other notice is necessary, and even this is not required under the law. 3. —Same—Transcript—Pauper Affidavit—Shorthand Reporter. Article 846, and 845, must be read together. If the accused, who has been convicted is not able to pay for a transcript he shall make affidavit as provided for in article,845, and in the absence of such affidavit and no request was made to the trial judge, verbal or otherwise, the shorthand reporter was not required to make such transcript. Following Roberts v. State, 70 Texas Grim. Rep., 588, and other cases.
91 Tex. Crim. 125Pythian v. State (1922)
Crim. Rep., 615, and other cases. Appeal from the County Cort of Williamson. Tried below before the Honorable P. D. Love. Appeal from a conviction of gaming; penalty, a fine of $25.00. The opinion states the case.
91 Tex. Crim. 126Slocovich v. State (1922)
The opinion states the case.
91 Tex. Crim. 127Lyles v. State (1922)
1.—Theft—Confession.—Rule Stated—Proof Aliunde. It has often been, held that where the offense is substantially proved aliunde, the confession of the accused is sufficient to identify him as the guilty agent. Following Williard v. State, 27 Texas Crim. App., 391, and other cases. 2. —Same—Confession—Charge of Court—Buie Stated—Question of ±'act, When. It is the settled law that, if from the evidence it appears that the confession is not freely and voluntarily made, if proper request therefor be made, the court should submit the issue to the jury, though the issue may be raised by the testimony of defendant himself, etc. Following Cortez v. State, 43 Texas Grim. Rep., 383, and other cases, and under the facts in the instant case, this issue should have been submitted to the jury, and a failure to do so is reversible error. 3. —Same—Accomplice—Charge of Court.. There is nothing in the record on appeal indicating any error by the trial court in refusing to apply the law of accomplice testimony to a certain witness. 1
91 Tex. Crim. 127Speer v. State (1922)Judgment reversed, with directions
Intoxicating liquors <§=>139, 211 — Indictment charging possession must allege purpose of sale; mere possession not an offense. Indictment charging defendant with having possession of intoxicating liquors must allege such possession to have been for the purpose of sale, as, under Acts 36th Leg. (1919) 2d failed Sess. c. 78, as amended by the Acts 37th Leg. (1921) 1st Called Sess. e. 61, possession is not an offense unless the possession is for the purpose of sale.
91 Tex. Crim. 127Spear v. State (1922)
Intoxicating Liquor—Possession—Sale—Repeal. Under the law as now amended, the possession of intoxicating liquor is not an offense unless such possession is for the purpose of sale, and the judgment must therefore be reversed and the cause dismissed. Following Francis v. State, 90 Texas Crim. Rep., 67. ,
91 Tex. Crim. 131Cottrell v. State (1922)
1.—Incest—Continuance—Affidavit—Motion for New Trial. Where, upon appeal from a conviction of incest, the record showed that defendant filed an application for continuance and showed proper diligence and the materiality of the absent testimony, and it developed on the trial, during cross-examination of prosecutrix, that counsel asked for the written contradictory statement which prosecutrix had previously made and the court refused to permit same, all of which was shows hy the motion for new trial, the refusal to grant a new trial was reversible error. Following Eppison v. State, 82 Texas Grim. Rep., 369, and other cases. 2. —Same—Evidence—Other Acts of Intercourse—Election by State. While it is the exception to the rule of admitting in evidence other acts of carnal intercourse, yet in the instant case where the cross-examination of the prosecutrix, had the effect of seriously contraverting her testimony, touching her relations with defendant, there was no error in admitting in evidence other acts of carnal intercourse; besides, there was no motion for the State to elect. 3. —Same—Accomplice—Corroboration—Charge of Court. Where, upon trial of incest, the charge of the court was susceptible of the construction by the jury that though the declaration of the accomplice to third parties would not be corroborative of herself, yet her testimony that defendant had had previous sexual relations with her might be so used, the same was reversible error. 4. —Same—Other Acts of Sexual Intercourse—Rule Stated—Accomplice. Under the rule that other acts of sexual intercourse may be introduced in a trial for incest, etc., and that such proof -is pertinent to establish the offense charged, to be given legal weight for that purpose it is essential that proof of them should not rest alone upon the uncorroborated testimony of the prosecutrix whom the facts show to be an accomplice. Following Smith v. State, 58 Texas Grim. Rep., 106, and other cases. 5. —Same—Statement of Facts—Practice on Appeal. Where some of the statement of facts was in question and answer form, but enough of it was in narrative form to enable the court to comprehend the record, the motion to strike out is overruled. However, statements of fact and bills of exception should be in narrative form. Following Jetty v. State, 90 Texas Grim. Rep., 346, and other cases.
91 Tex. Crim. 131Hamlin v. State (1922)
Intoxicating Liquors—Possessing Equipment for the Manufacture of. Where the verdict of the jury and the court’s judgment were based upon the offense of the possession of equipment for the manufacture of liquor, the judgment must be reversed and the cause dismissed as there is no such offense under the present law.
91 Tex. Crim. 137Grayson v. State (1921)
■ Appeal from the District Court of Cottle. Tried below before the Honorable J. H. Milam. Appeal from a conviction of murder; penalty, eight years imprisonment in the penitentiary. The opinion states the case.
91 Tex. Crim. 143Coloniger v. State (1921)
91 Tex. Crim. 143Cloniger v. State (1921)
Tried below before the Honorable C. R. Rearman. Appeal from a conviction of rape upon a female under the age of consent: penalty, five years imprisonment in the penitentiary.
91 Tex. Crim. 143Cloninger v. State (1921)Reversed and remanded
Appeal from District Court, Denton County; C. R. Pearman, Judge. Barney Cloninger was convicted of rape of a girl under the age of consent, and he appeals.
91 Tex. Crim. 151Collins v. State (1921)
1. —Murder—Sufficiency of the Evidence. Where, upon trial of murder, the evidence was sufficient to sustain the conviction, there was no reversible error. 2. —Same—Requested Charge—Real and Apparent Danger—Self-defense. Where the court’s charge submitted self-defense in the proper manner, and instructed the jury that the transaction must be viewed from defendant’s standpoint, and that if a threatened attack from this standpoint had begun to be executed the defendant would be justified in shooting to kill the deceased, and sufficiently covered the matter submitted in the requested charge, there was no error in refusing the latter. 3. —Same—Charge of Court—Manslaughter. Where, upon trial of murder, the court’s charge was sufficient to guard all the rights of the defendant on the law of manslaughter, there was no error in refusing a requested charge thereon to the effect that if defendant bad a reasonable apprehension that the deceased might arm himself, etc., and which was too broad when applied to the facts. 4. —Same—Indictment—Malice Aforethought—Words and Phrases. Where it was contended that because the indictment omitted the use of the word “unlawful” in charging malice aforethought, that the same was bad on motion in arrest of judgment, held: that such contention is untenable, following Thompson v. State, 30 Texas Grim. App., 325, and other cases. 5. —Same Evidence—General Reputation—Bill of. Exceptions—Suspended Sentence. In the absence of alleging as to what character of general reputation the State witnesses testified to, the bill of exceptions cannot be considered, and defendant having taken the witness stand, his general reputation for veracity was in issue; besides, he had filed an application for a suspended sentence. 6. —Same—Rule Stated—Limiting Testimony—Objections to Charge. It is the duty of the defendant, who desires that evidence admissible for a specific purpose be limited by the charge to the jury to that particular purpose, to present a request to the trial judge for such limitation, or take a proper exception to the court’s charge, and in the absence thereof, there was no reversible error. 7. —Same—Rehearing—Actual and Apparent Attack—Charge of Court—Defensive—Theory . Where defendant claimed that after discussing some differences between him and deceased the latter seized defendant’s rifle and undertook, as he believed, to get possession of it for the purpose of shooting him, and the court charged the jury on the subject of self-defense, that if from the manner and character of deceased’s attack upon defendant, etc., caused the latter to have a reasonable expectation, or fear of death or serious bodily injury, etc., he killed the deceased, then the defendant should be acquitted, this phase of the evidence was sufficiently submitted, and there was no question under such facts that an attack had already commenced and was not merely apparent.
91 Tex. Crim. 156Davis v. State (1922)
Unlawfully Carrying Pistol—Insufficiency of the Evidence—Intent. The provisions of the code denouncing the offense of unlawfully carrying arms were not passed for the purpose of punishing one who had momentary possession of a pistol, where the facts- negatived the intention to violate the law, and where the facts were of such character in the instant case as to come within this rule, the conviction cannot be sustained. Following Guy v. State, 74 Texas Crim. Rep., 620, and other cases.
91 Tex. Crim. 156Johnson v. State (1922)
Intoxicating Liquor—Possession—Amended Statute. A prosecution for the unlawful possession of intoxicating liquor cannot be maintained on the present indictment alleging simply such possession, and the judgment must be reversed and the cause dismissed. Following Francis v. State, 90, Texas Grim. Rep., 67, and other cases.
91 Tex. Crim. 158Pye v. State (1922)
The opinion states the case.
91 Tex. Crim. 161Dodd v. State (1922)
1. —Intoxicating Liquors—Manufacture—Sufficiency of the Evidence. Where the evidence was sufficient to sustain the conviction, of unlawfully manufacturing intoxicating liquors, there is no reversible error. 2. —Same—Confessions—Certifying Witness—Evidence. Upon trial of unlawfully manufacturing intoxicating liquor, where the State introduced the confessions of the defendant, there was no error in permitting a certifying witness to the confession to identify the confession. 3. —Same—Confession—Sufficiency of the Evidence. Where the indictment contained an additional count of the unlawful possession of equipment, etc., but the court limited the same to the unlawful manufacture, and thus withdrew the other count, and there was no reliance upon the possession of the still, but solely upon the confession and other circumstances, there was no reversible error.
91 Tex. Crim. 162Bison v. State (1922)
The opinion states the case.
91 Tex. Crim. 164Mullins v. State (1922)
The opinion states the case.
91 Tex. Crim. 165Keith v. State (1922)
Maiming—Death of Appellant—Abatement—Affidavit. Where, pending the appeal, the appellant died and this was properly certified by affidavit of the sheriff, the appeal will be abated.
91 Tex. Crim. 166Hornsby v. State (1922)
Tried below before the Honorable M. B. Blair. Appeal from a conviction of murder; penalty, death. The opinion states the case.
91 Tex. Crim. 177Talmadge v. State (1922)
1. —Theft—Possession—Owner—Practice in Trial Court. Where the alleged owner testified, and the facts showed that the alleged property stolen was under his care, control, and management, the fact that he also testified to the conclusion that he was in possession of it was neither important nor harmful. 2. —Same—Words and Phrases—Evidence. . Where a witness testified that defendant described the alleged stolen property as “hot stuff,” and the defendant testified that the alleged stolen oil pipe was at times referred to as “hot pipe” and sometimes as “wet pipe,” there was no reversible error. 3. —Same—Evidence—Refreshing Memory—Grand Jury Testimony. Where a Statute’s witness failed to recall a conversation with the defendant, there was no error refreshing his memory by exhibiting to him a written statement made before the grand jury. Which, however, was not read to the jury. 4. —Same—Continuance—Want of Diligence. Where neither in the application for continuance nor the motion for new trial any sufficient reason was given for the failure to cause the subpoena to be issued, etc., there was no error in overruling the application for continuance and motion for new trial. 5. —Same—Accomplice—Charge of Court. Where a State’s witness was not an accomplice, as a matter 'of law, there was no error, in the absence of a requested charge, in failure to submit such question to the jury. Huggins v. State, 85 Texas Grim. Rep., 205, and other cases. 6. —Same—Rehearing—Continuance—Subpoena—Negligence. The promise of the witness to be present at the trial would not avail the defendant, and a failure to apply for process was a want of diligence, and an application for continuance and a motion for new trial thereon was properly overruled; besides, the absent testimony was immaterial. 7. —Same—Accompliance—Charge of Court. Where the evidence showed that the sheriff disguised himself as a laborer for the purpose of detecting the offenders, went with the party and helped to load the alleged stolen property, he was not an accomplice, and no charge thereon was necessary.
91 Tex. Crim. 181Deatherage v. State (1922)
1. —Procuring—Evidence—Charged in Same Indictment—Impeaching Witness. Where the State objected to the testimony of defendant’s witnesses to testify upon the ground that they were under indictment for the same offense, but there was no proof of such fact or that any complaints or indictments were filed against them, the court erred in sustaining such objections. Following Thomas v. State, 66 Texas Grim. Rep., 326, and other cases. 2. —Same—Requested Charge—Accomplice—Chief State’s Witness. Upon trial of procuring, where it was not shown that the woman involved, herself originated the criminal enterprise, or procured the soliciting extended to her for illicit intercourse, she would not be an accomplice, and there was no error in the court’s refusal of a requested charge thereon. However, where the chief State’s witness, who testified, suggested the procuring of said female, he would be an accomplice. 3. —Same—Insufficiency of the Evidence. The court has serious doubts as to the sufficiency of the evidence to support a conviction for procuring a female for carnal intercourse with men, as the two State’s witnesses upon which the State relied pointedly contradicted each other on material matters.
91 Tex. Crim. 183Anderson v. State (1922)
The opinion states the case.
91 Tex. Crim. 186Baker v. State (1922)
B. Blair, Judge. J. A. Baker, alias J. Warren, was convicted of possessing equipment for the manufacture of intoxicating liquor, and he appeals.
91 Tex. Crim. 187Hightower v. State (1922)
The opinion states the case.
91 Tex. Crim. 187Milner v. State (1922)Reversed, and prosecution ordered dismissed
Appeal from District Court, Titus County; R. T. Wilkinson, Judge. Ed Milner was convicted for possessing intoxicating liquor, and appeals.
91 Tex. Crim. 189Pruitt v. State (1922)
1.—Robbery—Insanity—Evidence—Co-Defendant. While there might arise some state of facts wherein the insanity of the principal actor might be provable, not as a defense per se, but as lending ■color to some theory of defense, yet in the instant case where the record showed an utter failure to support the proposition of such principal actor’s insanity, there was no error in excluding the proffered testimony that said principal actor was insane at the time of the alleged robbery. 2. —Same—Charge of Court—Principals—Keeping Watch. Where in the general definition of principals, the court included one who not being actually present kept watch, etc., but in applying the law to the facts, the jury were told that if defendant’s companion committed the robbery, then among other things which would render defendant guilty, would be, that he was present and kept watch while his companion committed said offense, etc., there was no reversible error, under the facts of the instant case. 3. —Same—Rule Stated—Abstract Charge—Practice on Appeal. In determining whether the erroneous abstract instruction would necessitate a reversal, the whole case must be looked to in order to determine whether the error was of such a character as would have been calculated to mislead the jury, and where this was not the case in the instant case, there was no reversible error. 4. —Same—Rehearing—Insanity—Co-Principal—Practice on Appeal. By all precedent, the burden of proving insanity rests upon the accused, and in re-examining the record in the instant case, this court is of the opinion that the excluded testimony with reference to the insanity of the co-principal and principal actor is totally insufficient to show such insanity, and could not have induced the jury to find that such co-principal was insane at the time of the commission of the offense, and would not have produced a different result.
91 Tex. Crim. 196Edwards v. State (1922)
The opinion states the case.
91 Tex. Crim. 199Anderson v. State (1921)
1.—Assault to Murder—Bills of Exception—Statement of Facts. The burden is upon appellant to establish that he has been deprived of his bills of exception without fault on his part, and in the absence of a statement of facts, the blame of the absence of a bill of exceptions should not be charged to the trial judge. 2.—Same—Bills of Exception—¡Affidavit—Practice on Appeal. This court has been unable to conclude on a motion for rehearing that the matter was improperly decided in the original opinion, and the motion for rehearing will therefore be overruled.
91 Tex. Crim. 201Ex Parte Freeman (1922)
1. —Murder—Habeas Corpus—Practice on Appeal—Bail. Where, upon trial of a habeas corpus, appealed from the District Court, on a charge of murder, the same refused bail, this court after considering the facts in the case and without commenting upon the evidence affirms the judgment below. 2. —Same—Rehearing—Capital Felony—Bail Refused. Where appellant insisted on his motion for rehearing the facts did not warrant a capital conviction, this court after again going over the testimony adheres to its conclusion that bail should be refused.
91 Tex. Crim. 203Jones v. State (1922)
The opinion states the case.
91 Tex. Crim. 205Littleton v. State (1922)
The opinion states the case.
91 Tex. Crim. 212Chewning v. State (1922)
The opinion states the case.
91 Tex. Crim. 217Dixon v. State (1922)
1. —Murder—Continuance—Diligence—Materiality of Testimony. Where defendant’s application for continuance showed proper diligence, that absence of his witness was not due to any fault of the defendant and the testimony was material, there was reversible error to refuse it, especially where the absent testimony would support the defendant’s defense, otherwise resting on his own testimony. Following Beard v. State, 55 Texas Crim. Rep., 158, and other cases. 2. —Same—Continuance—Rule Stated—Motion for New Trial. The rule which should govern the trial court in passing, first, upon an application for continuance and subsequently upon a motion for new trial, is, if there is such a conflict between the culpatory facts and those set forth in the application as to render it improbable that the facts stated in the application are material and probably true, the continuance should be refused, and also a new trial based upon such refusal should be denied. There must, however, not only be such a conflict but the inculpatory facts should be so strong and convincing as to render the proof of the facts set forth in the application improbable. Following Bronson v. State, 59 Texas Crim. Rep., 17, and other cases. 3. —Same—Special Venire—Irregularity of Return—Practice in Trial Court. In making his return on the special venire writ, the sheriff gave a list of those summoned, but left blank a space corresponding with the name and number of three of the veniremen. One of the missing veniremen attended, one filed an affidavit of exemption and one was shown to have been out of the county and not served for that reason, and where a correct list of the jurors summoned was served upon the defendant, and the trial was postponed for one full day, after the service, there was no reversible error. Following Whittington v. State, 86 Texas Crim. Rep., 1, and other cases. 4. —Same—Special Venire—Exempt Jurors. While the law does not contemplate that persons summoned to serve on a special venire shall be excused by the court without the consent of the accused except for some reason exempting such person from jury service, and upon a written affidavit filed with the clerk exists, the juror should be excused, but the court cannot excuse the juror unless such affidavit is filed. However, in the instant ease, injury is excluded and there is no reversible error. Following Campbell v. State, 30 Texas Crim. App., 645, and other cases. 5.—Same—Evidence—Bill of Exceptions—Part of Testimony Admissible. In the absence of a sufficient bill of exceptions, the complaint of defendant to the admission of certain evidence showing the conduct of the wife of the deceased, cannot be considered on appeal. Besides, it is the general rule that where a part of the statement is admissible, a bill complaining of a ruling of the trial court in admitting the whole is too general. Furthermore, in the instant case, the conduct of the deceased and his wife towards each other and their relation, which were known to the defendant, being so intimately connected with the state of the mind of both the defendant and the deceased, such testimony was admissible in evidence. 6. —Same—Charge of Court—Provoking Difficulty—Going Armed. There being no charge to the jury upon the issue of provoking the difficulty, and no requested charge limiting or qualifying the right of perfect self-defense, there was no error in the court’s failure to instruct the jury that the defendant had a right to arm himself, etc., following Williford v. State, 38 Texas Grim. Rep., 393, and other cases. 7. —Same—Rehearing—Continuance—Motion for New Trial. Where the record showed on appeal that by the absent witness threats of deceased to take the life of appellant would have been shown, and also the fact of the communication of such threats to the accused, prior to the fatal encounter, the continuance should have been granted, as also the motion for new trial thereon.
91 Tex. Crim. 224Alsup v. State (1921)
1.—Libel—Definition of Offense—Character of Publication. To constitute libel, it is not essential that the act or omission be charged against the injured party in direct terms. It may be expressed by insinuation or irony. No more is required than that the statements in the publication be so plain and unmistakable in their meaning that no intelligent person can fail to understand or comprehend what is by them intended. Following Jones v. State, 38 Texas Grim. Rep., 368 and other cases. 2. —Same—Case Stated—Libelous Publication—Sufficiency of Evidence. When fairly construed, the conclusion cannot be escaped that the statement, in its entirety, set out in the information conveyed the idea that the injured party had been guilty of acts which, though not penal, were disgraceful to him as a member of society, etc.; and, that if, in the efforts of the injured party to secure election to office, etc., he was guilty of the disgraceful conduct which the statement imputes to him, he was within the meaning of the statute “dishonest” and unworthy of the office. 3. —Same—Statutes Construed—Standard Applied—Libelous Matter—Information. Article 1157, P. C., furnishes a measure, or standard, by which to determine whether the alleged libelous matter contained in the pleading conveys the idea that the conduct described comes within any one or more of the sub-divisions of that article, and while it is essential that this appear from the pleading, it is not required that the pleader designate to which of the sub-divisions of the statute the alleged libelous statement pertains. Following Lockhard v. State, 43 Texas Grim. Rep., 61. Qualifying, McKie v. State, 37 Texas Grim. Rep., 544. 4. —Same—Venue—Case Stated—Newspaper—Intent to Circulate—Candidate for Office. Where upon trial of libel, the defendant testified that he wrote the article intending it to be used in influencing the voters against the party injured, who was the democratic nominee for governor; that he handed it to the publishers of a certain newspaper for publication; that he knew that this paper had a broad circulation in Texas, and knew that copies of it would be distributed; he cannot claim as a defense, and as an objection to the venue, that there was no specific testimony that defendant knew that the paper containing these statements would be circulated in the county of the prosecution, where the evidence charged it was circulated. 5. —Same—Charge of Court—Requested Charge—Truth of Publication—Good Faith. Where the court instructed the jury that if they believed the statement to be true with reference to the candidate for office, an acquittal must follow, but further instructed them in a requested charge by the State that belief on the part of the defendant in their truth would not suffice to excuse him, there was no reversible error, as the good faith of the author and- publisher will not give him immunity if the facts are not true, but can only mitigate the penalty. Following McArthur v. State, 41 Texas Grim. Rep., 639, and other cases. 6. —Same—Verdict—Practice in Trial Court—Sufficiency of Evidence—Rehearing. Where the information contained two counts, one charging libel of the party injured as an individual, and the other charging libel of him as a candidate for governor, no election between said counts having been made, and both having been submitted to the jury and a general verdict of guilty rendered, and there was no question of the sufficiency of the evidence to show guilt under the -first count, the conviction must be sustained; however, there is also sufficient evidence to sustain the second count. 7.—Same—Statutes Construed—Words and Pirrases—Dishonesty—Public Official. The word “dishonest” as used in Sub-division 5, article 1157, Penal Code, is not confined to financial transactions, as the only one of the qualifications • to be expected from a public servant, and in view of the fact that there are many public offices in which- the handling of public money forms but a minor portion of the duties thereof. The Legislature intended to use the word in a much larger and broader sense, and not in the restricted construction heretofore given. Overruling Squires v. State, 39 Texas Crim. Rep., 96.
91 Tex. Crim. 234Thompson v. State (1922)
1. —Robbery—Deadly Weapon—Death Penalty—Sufficiency of the Evidence Corpus Delicti. Where,, upon trial of robbery by the use of a deadly weapon, the State did not rely solely upon the confession of the defendant to prove the corpus delicti, and the facts presented a most cold-blooded, inhuman, and unprovoked attack made upon sleeping inmates of the house, etc., the conviction assessing the death penalty is sustained. 2. —Same—Charge of Court—Robbery—Punishment—Article 743 C. C. P. Where the court erroneously instructed the jury that the penalty was death or penitentiary for life, or for any term not less than five years, and the jury found the defendant guilty and assessed his punishment at death, held,: that the court’s charge being correct as to the minumum and maximum penalty given, the mistake of the court of inserting in the charge an intermediate punishment not authorized by law was not reversible error, under article 743, C. C. P. 3. —Same—Case Stated—Charge of Court—Mistake—Rehearing. Believing the conviction was fully authorized under the evidence, and that the mistake in the court’s charge could in no way have harmfully affected the appellant’s rights in the jury’s consideration of his case, the motion for rehearing is overruled.
91 Tex. Crim. 238Volney v. State (1922)
Intoxicating Liquor—Possession of Equipment—Repeal of Law. The offense upon which the judgment rests having been repealed since the conviction, the judgment must he reversed and the prosecution dismissed. Following Francis v. State, 90 Texas Grim. Rep., 67.
91 Tex. Crim. 239Sparks v. State (1922)
Intoxicating Liquor—Sale—Local Option Law—Repeal. The section of our Constitution under which Local Option statutes, with reference to intoxicating liquors were voted into existence was repealed by the constitutional amendment adopted May 24, 1919, effective July 3, 1919, and the judgment must be reversed and the cause dismissed. Following Cone v. State, 90 Texas Grim. Rep., 489, 236 S. W. Rep., 486.
91 Tex. Crim. 240Jones v. State (1922)
1. —Carrying Pistol—Peace Officer—Requested Charge. Where, upon trial of unlawfully carrying a pistol, the defendant claimed that he believed himself to be a traffic officer under the appointment of the Commissioners’ Court, but the county judge testified that defendant was only appointed a special officer to assist the sheriff in collecting auto licenses, and that the appointment was only in connection with his duty as marshal, and it was shown that he had not been marshal the year previous to the offense, there was no error in withdrawing said testimony and refusing to instruct the jury, that if appellant was a civil officer, etc., to acquit. 2. —Same—Statutes Construed—Peace Officer—Former Decisions. As the law now reads, the exemption applies to a peace officer only when in the actual discharge of his official duty, and decisions under the former statute are not applicable to the instant case. The defendant did not bring himself within the terms of the statute. Following Baker v. State, 53 Texas Grim. Rep. 29. 3. —Same—Charge of Court—Defensive Theories—Sufficiency of the Evidence. Where, upon trial of unlawfully carrying a pistol, the testimony with reference to the condition of the pistol and other matters of defense were properly submitted to the jury, and the evidence was sufficient to sustain the conviction, there was no reversible error.
91 Tex. Crim. 243Jordan v. State (1922)
Embezzlement—Charge of Court—Circumstantial Evidence. • Where, upon trial of embezzlement, the conviction depended wholly upon circumstantial evidence, a refusal to submit a requested charge on circumstantial evidence is reversible error. Following Miller v. State, 88 Texas Grim. Rep. 69.
91 Tex. Crim. 245Williams v. State (1922)
The opinion states the case.
91 Tex. Crim. 246Shoemake v. State (1922)
The opinion states the case.
91 Tex. Crim. 247Padillo v. State (1922)
The opinion states the case.
91 Tex. Crim. 249Byington v. State (1922)
Aggravated Assault—Adult—Child—Defensive Theory. Where, upon trial of aggravated assault by an adult upon a child, the evidence raised the issue that the defendant acted alone in defense of his son, and used no undue force, and requested a charge on this issue, which was refused, same was reversible error. Following Duffee v. State, 8 Texas Grim. App., 187, and other cases.
91 Tex. Crim. 250McKennon v. State (1922)
The opinion states the case.
91 Tex. Crim. 251Munoz v. State (1922)
The opinion states the case.
91 Tex. Crim. 252Tucker v. State (1922)
1. —Carrying Pistol—Words and Phrases—Record on Appeal. Examining the record, the testimony omitted the word “not,” which should be supplied in the consideration of the testimony. 2. —Same—Newly Discovered Testimony—Affidavit—Practice on Appeal. Where, upon trial of unlawfully carrying a pistol, defendant was convicted on testimony of two State’s witnesses, who contradicted each other directly as to whether the defendant held the pistol in his hand or had it under his clothes, etc., and in the motion for new trial, supported by affidavit, it was shown that the absent testimony would prove the defendant’s contention, that the pistol which he was alleged to have carried was in his trunk at home at the time, a new trial should have been granted.
91 Tex. Crim. 252Gaston v. State (1922)
Tried below before the Honorable L. D. Guinn. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary.
91 Tex. Crim. 252Caston v. State (1922)Affirmed
Appeal from District Court, Cherokee County; L. D. Guinn, Judge. N. W. Caston was convicted of forgery, and he appeals.
91 Tex. Crim. 255Johnson v. State (1922)
Murder—Sufficiency of the Evidence—Death Penalty. Where, upon trial of murder, inflicting the death penalty, the evidence sustained the conviction, there was no reversible error.
91 Tex. Crim. 257Whitmore v. State (1922)
Intoxicating Liquors—Possession—Sale Not Alleged. Failure to allege in the indictment that the possession of intoxicating liquers was for the purpose of sale makes the indictment fatally defective, and the judgment is reversed and the prosecution dismissed.
91 Tex. Crim. 258Williams v. State (1922)
The opinion states the case.
91 Tex. Crim. 259Jennings v. State (1922)Affirmed
Appeal from CountyCounty Court, Hopkins County;, Homer L. Pharr, Judge. Will Jennings was convicted of unlawfully carrying a pistol, and he appeals.
91 Tex. Crim. 259Mobley v. State (1922)
Theft of Automobile—Plea of Guilty—Statement of Pacts. In the absence of a statement of facts, the indictment being regular, and the judgment and sentence in proper form, matters set up in the motion for new trial cannot be considered on appeal, and the judgment is affirmed.
91 Tex. Crim. 261Chappell v. State (1922)
The opinion states the case.
91 Tex. Crim. 262Traylor v. State (1922)Affirmed
Appeal from Fannin County Court; A. P. Bolding, Judge. Ed Traylor was convicted' of unlawfully carrying a pistol, and he appeals.
91 Tex. Crim. 262Karels v. State (1922)
The opinion states the case.
91 Tex. Crim. 267Ahlgren v. State (1922)
The opinion states the case.
91 Tex. Crim. 269Snover v. State (1922)
1. —Swindling—Name of Owner—No Variance—Joint Ownership—Indictment. Where, upon trial of swindling, W. H. Sanders was named as the owner, of the property, and the proof showed that Sackowitz Bros, was a corporation engaged in selling merchandise; that Sanders was secretary-treasurer of the corporation, and part owner of it, there was no variance in the allegation and the proof. Following. Price v. State, 55 Texas Grim. Rep., 158; the ownership being joint, the averment naming the owner in possession was sufficient. Following Coates v. State, 31 Texas Grim. Rep., 261. 2. —Same—Sufficiency of the Evidence. Where, upon trial of swindling, the evidence sustained the conviction, there was no reversible error.
91 Tex. Crim. 270Epps v. State (1922)
Intoxicating Liquor—Transportation—Possession—Practice on Appeal. Where the ■ indictment contained two counts, one for the transportation of intoxicating liquors and one for unlawful possession without alleging that possession was for the purpose of sale, and no n» ition was made to quash the latter1 count, and both were submitted to the jury and a general verdict rendered, the judgment will be reformed and affirmed in the absence of a statement of facts, and the conviction will rest alone upon the count charging the transportation of intoxicating liquor.
91 Tex. Crim. 272Kellum v. State (1922)
The opinion states the case.
91 Tex. Crim. 277Nichols v. State (1922)
1. —Theft—Evidence—Other Testimony—Practice in Trial Court. Where, upon trial of theft, defendant objected to testimony that Mrs. Hawes and Walker registered at a certain hotel as man and -wife, etc., but the bill as qualified showed that no error was commited, and that the matters complained of in the bill were testified to by the .defendant himself, there was no reversible error. Following Wagner v. State, 53 Texas Grim. Rep., 306. 2. —Same—Evidence—Flight—Other Circumstances. Where defendant in his own testimony explained his flight to Oklahoma by claiming that he was fearful of trouble in connection with some whisky, there was no reversible error that on a certain occasion the fact was- revealed that he had some corn whisky along. Following Miller v. State, 31 Texas Grim. Rep., 609. 3. _Same—Evidence—Suppressing Testimony—Consciousness of Guilt. Upon trial of theft there was no error in introducing testimony that defendant proposed to marry his co-defendant, Frances Hawes, it being shown in connection with the propsal that his object was to render her testimony unavailable to the State. 4. —Same—Evidence—Assuming líame—Jail Register. Upon trial of theft there was no error in introducing testimony that defendant, while in Oklahoma, went under the name of Collins, and it was brought out on cross-examination by defendant’s counsel that the witness was told that defendant’s name appeared as “Collins” on the jail register; and the objection to the testimony that he was in jail is likewise untenable. 5. —Same—Requested Charges—Bill of Exceptions. Where, in the accepted bill of exceptions, it was declared by the trial judge that there was neither written nor verbal exceptions -to his refusal of the requested charges, same could not be considered on appeal; besides, had they been properly presented, there was no reversible error. Following Barrios v. State, 83 Texas Grim. Rep., 550. 6. —Same—Alibi—Charge of Court—Circumstantial Evidence. Where the court’s charge on alibi, and on circumstantial evidence were both in full accord with approved precedents, there was no reversible error. 7.—Same—Flight—Evidence—Discrediting Incident—Res Gestae, If, in proving the flight of the defendant there was developed discrediting incidents, they appeared but res gestae of the flight, and corroborative of the accomplice witness, and there was no reversible error. Following Roquemore v. State, 59 Texas Grim. Rep., 568. 8.—Same—Rehearing—Facts Stated in Opinion—Practice on Appeal. It is scarcely necessary for counsel in any case to challenge this court to verify any conclusion it reaches as to the facts or as to the correctness of any proposition of law stated; as this court is always ready to correct mistakes. However,' the facts stated in the original opinion by the court are amply borne out by the record, and the motion for rehearing is overruled.
91 Tex. Crim. 285Bedford v. State (1922)
1. —Forgery—Indictment—Deed—Conveyance—Securing Debt. A written conveyance of land, conveying the interest of the grantor for the purpose of securing a debt, would not prevent its being a deed within the definitions. Following Lockridge v. McCommon, 90 Texas, 234. 2. —Same—Continuance—Want of Diligence—Truth of Testimony. Where the application for continuance shewed a want of diligence and the absent testimony was probably not true and would not have effected the result different from that obtained, there was no error in overruling the application. S.—game—Rule Stated—Diligence—Rehearing. A mere affirmation of diligence is not sufficient, but the facts must be set forth showing such diligence, and the right of compulsory process is guaranteed by the Constitution; and one accused of crime who fails to follow the. statute must abide the consequences. 4.—Same—Rule of Court—Practice in Trial Court. Reverting to the matter of the existence of a rule of the trial court vefusing the issuance of process till causes have been set for trial, referred to in appellant’s motion, this matter is not properly before this court, as no such facts are authenticated by the trial court. However, the trial court was not authorized to make such rule. 5. —Same—Record—Continuance—Practice on Appeal—Rule Stated. This court is compelled to adhere to the utterances of the record before it, and is forced to conclude that the same shows such lack of diligence in the matter of obtaining process of alleged absent witness as called for a refusal of continuance, and this in recognizing the' correctness of the proposition that when in doubt as to diligence, the doubt must resolve itself in favor the accused. 6. —Same—Continuance—Practice on Appeal—Precedent. The correctness of our conclusions, that a reversal should not be granted unless we were impressed with the belief that had the absent testimony been at hand, a verdict more favorable to the appellant would have resulted is affirmed in former decisions. Following Browning v. State, 26 Texas Grim. App., 432, and other cases.
91 Tex. Crim. 289Cooper v. State (1922)
1.—Forfeited Bail Bond—Information—Jurisdiction. The rule is that an information must be filed in the County Court before jurisdiction attaches, and if bond be taken prior to filing the information, it is without authority of law. However, this matter is not important in the instant case. 2.—Same—Scire Facias Writ—Judgment—Variance—IName of Principal. There .is no finding in the judgment or recital in the scire facias writ that J. B. Cooper and Jim Cooper is the same person, and when the judgment and bonds were offered in evidence objection was made because of the variance. This variance in the name in the judgment nisi and the bail bond is fatal. Following Uppenkamp v. State, 89 Texas Grim. Rep., 131, and other cases.
91 Tex. Crim. 291Johnson v. State (1922)
The opinion states the case.
91 Tex. Crim. 295Rollins v. State (1922)
The opinion states the case.
91 Tex. Crim. 296Bush v. State (1922)
1. —Irrigation Law—Information—Duplicity of Pleading—Motion to Quash. Article 837d, Penal Code contains two separate and distinct offenses, and while the same might be charged in the same indictment in separate counts, they cannot be charged in the same count without being subject to condemnation for duplicity, and where this was done in the instant case, the motion to quash should have been sustained. 2. —Same—Duplicity—Buie Stated—Misj oinder—Pleading. Duplicity is the joinder in the same count of two or more separate offenses, or the joinder in the same count of two or more phases of the same offense where the punishment is different. Following Todd v. State, 89 Texas Grim. Rep., 99, and other cases. 3.—Same—Statutes Construed—Local Option—Information. It.is obvious that article 837-d, supra, is effective only in those localities where irrigation of water-improvement districts have been created in the manner provided for bringing them into existence under the law, and it has always been held necessary, that where a local law or where a law local in its character was invoked by the State, it was necessary to allege the existence of the law in the locality where the allegd offense was committed, and necessary also to prove its existence. Following Felchach v. State, 87, Texas Grim. Rep., 207; and other cases.
91 Tex. Crim. 299Wyatt v. State (1922)
1. —Intoxicating Liquors—Manufacture—Suspended Sentence—Constitutional Law. Where defendant in due time and manner filed his application for a suspended sentence and also presented to the trial court a special charge and requested the submission of said issue to the jury which was refused by the court, the same was reversible error. Following Carr v. State, 89 Texas Grim. Rep., 245. 2. —Same—Constitutional Amendment—Statutes Construed. The constitutional amendment to article 16 of the Constitution of the State, as adopted May 24, 1919, relates solely to matters transpiring between the adoption of said amendment and the passage of the so-called Dean Law, which latter makes no reference directly or indirectly inhibiting the right of suspended sentence in case of a conviction under any of its provisions; and the refusal to submit the question of susplended sentence was, therefore, reversible error.
91 Tex. Crim. 301Baughman v. State (1922)
Tried below before the Honorable J. H. Milam. Appeal from a conviction of the unlawful possession of liquor ; penalty, one year imprisonment in the penitentiary.
91 Tex. Crim. 301Bauchman v. State (1922)
91 Tex. Crim. 302Roberts v. State (1922)
The opinion states the case.
91 Tex. Crim. 302Green v. State (1922)
The opinion states the case.
91 Tex. Crim. 303Lopez v. State (1922)
Felony Theft—Statement of Facts—Bills of Exception—-Practice on Appeal— Misconduct of Jury. Where the alleged statement of facts heard by the trial court, on motion for new trial because of the misconduct of the jury, was filed long after the expiration of the trial term, the same cannot be considered on appeal.
91 Tex. Crim. 304Crane v. State (1922)
1. —Burglary—Requested Charges—Practice in Trial Court. It must be made to appear on the record that requested charges were timely presented, and where it is not shown that they were presented to the trial judge before his main charge was read to the jury, they cannot be considered on appeal. Following Castleberry v. State, 88 Texas Grim. ,Rep-> 502, and other cases. 2. —Continuance—Co-defendant—Evidence—Practice in Trial Court. •' -Where the absent testimony was not available to the defendant, because the alleged witness was his co-defendant, there was no error in declining to delay the trial under the circumstances. 3. —Same—Severance—Continuance—Practice in Trial Court. Where it appeared, from the record on appeal, that granting the defendant’s request for severance would have operated as a continuance, the court properly overruled’ the application. 4. —Same—Evidence—Remarks by Court—Trial Judge. Where, upon trial of - burglary, defendant sought to prove by certain witnesses the location of the switches in the packing house by which the lights were turned on, and the court in refusing such testimony remarked ’ that anyone could step in and strike a match and find the switch, etc., and therefore that the testimony was immaterial, there was no reversible error in the instant case. However, trial judges are admonished to refrain from expressing an opinion. 5. —Same—Evidence—Voluntary Statements of Co-Defendant—Witness. Upon trial of burglary there was no error in excluding the voluntary statement of the co-defendant made at an examining trial, as the co-defendant could not have testified himself. 6. —Same—Charge of Court—Entry—Breaking—Force—Caution Suggested. Where, upon trial of burglary, the State’s testimony showed entry unquestionably effected by force, there was no error in the court’s charge, in the instant case, in his reference to his entry, although isolated the same would have been error; but, given in the connection that it was, under the court’s definition of breaking and force, and further that the entry must be made by force directly applied to the house and with the intent to commit the specific crime of theft, there was no reversible error. However, the courts are admonished to use caution in framing a charge upon burglarious entry. 7. —Same—Sufficiency of the Evidence. Where, upon trial of burglary, the evidence was sufficient to sustain the conviction, there was no reversible error. 8. —Same—Rehearing—Written Exceptions to Charge of Court. A written exception to the charge of the court signed by the attorneys for the defendant reciting that it was presented to the trial judge before the e main charge was read to the jury, which recital was not verified by the trial judge, cannot be considered on appeal. 9. —Same—Bills of Exception—Burden on Appellant—Presumption. The burden is upon the appellant to show by bills of exception that an error has been committed, unless he does so the presumption upon appeal is in favor of the correctness of the trial court.
91 Tex. Crim. 310McCowan v. State (1922)Reversed
1. Homicide 145 — Intention to kill not presumed from use of weapon not deadly in character. When a homicide is committed by the use of a weapon not in itself deadly in character, the intention to kill will not be presumed from the use of such instrument, but must be shown from other facts and circumstances under Vernon’s Ann. Pen. Code 1916, art. 1147.. 2. Homicide &wkey;>319 — Denial of new trial for newly discovered evidence held error. Where defendant killed deceased with a baseball bat, not a deadly weapon, after having gone to deceased’s house, denial of motion for a new trial on the ground of newly discovered evidence that would have tended to prove that defendant went to deceased’s house to give him a whipping for improper conduct toward defendant’s wife, and not with the intent to kill him, held error. 3. Criminal law &wkey;»938(2) — Testimony of acquitted codefendant or codefendant who has been convicted and has paid tine held “newly discovered evidence” within statute as to new trial. The testimony of an acquitted codefendant, whether indicted in the same or a separate indictment or of a codefendant who has been convicted and his fine paid, is newly discovered evidence within statute as to new trial. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Newly Discovered Evidence.]
91 Tex. Crim. 310McGowan v. State (1922)
Tried below before the Honorable Richard I. Munroe. Appeal from a conviction of murder; penalty, thirty-five years imprisonment in the penitentiary.
91 Tex. Crim. 313Stone v. State (1922)
. i.—Assault to Murder—Evidence—Practice in Trial Court—Cumulative Testimony. Where, upon trial of assault with intent to murder, after defendant rested his case, the State introduced a number of eyewitnesses giving testimony conflicting with that of defendant and corroborative of that given by the State’s witnesses in opening the case, which testimony was cumulative, and thereupon defendant offered testimony of three eyewitnesses who would have given material testimony for the defense, and in detail would have corroborated the testimony of the defendant, which the court refused to admit, the same was reversible error. And the fact that the State’s testimony was cumulative was immaterial. Following Zimmer v. State, 64 Texas Grim. Rep., 117. 2.—Same—Rule Stated—Cumulative Testimony—Practice in Trial Court. The court having permitted the State to strengthen its case by the introduction of cumulative evidence pointing to the guilt of defendant, the due administration of justice demanded that a like privilege should not be deniéd the defendant to present material testimony directly tending to establish his innocence.
91 Tex. Crim. 316Saleh v. State (1922)
1. —Sunday Law—Milk Chocolate—Definition of Law. Where, upon trial of a violation’of the Sunday law, under article 302, P. C., the evidence showed that the defendant, at about ten or eleven o’clock on Sunday forenoon, sold to the purchaser a glass of milk chocolate, the defendant being in the confectionery business, and it was shown that the purchaser did not buy the milk chocolate for a beverage but for a food, and so used it, the same being made of about five ounces of pure miilk and one ounce of pure chocolate, the same was not a violation of the law. Following Searcy v. State, 40 Texas Grim. Rep., 460. 2. —Same—Legislative Intent—Exemptions—Statutes Construed. It is apparent that the purpose of the Legislature was to exempt the articles sold and not the seller by reason of the character of business he might be engaged in, and under the exemption of article 303, it was no offense to sell milk in any quantity by anybody, and the chocolate used being the same kind used by housewives for cooking and by restaurant and hotel keepers, there was no offense under the facts.
91 Tex. Crim. 318Richardson v. State (1922)
1. —Murder—Evidence—Declarations of Defendant—Motive. • On trial of murder, there was no error in admitting testimony that the defendant stated that he had appealed the forcible, entry and detainer case, shortly preceding the homicide; he having brought suit against the place in controversy. This was admissible on the issue of motive. Following McKinney v. State, 8 Texas Grim. App., 627. 2. —Same—Evid ence—Witness—Prejudice—Trial—Contradicting V» itness. Where a witness who had given material testimony in favor of the defendant, was asked on cross-examination if he had not stated with reference to the.deceased that the “son-of-a-bitch was dead and in hell where he ought to be” and when he denied the same proof was made for the purpose of impeaching him, that he did make the statement, there was no reversible ■ error. Following Watts v. State, 18 Texas Grim. App., 384, and other cases. 3. —Same—Evidence—Moral Turpitude—Practice in Trial Court. Where the State’s counsel asked the defendant on cross-examination whether it wasn’t true that some five or six years ago, in the county of the prosecution, he was tried, indicted, and convicted of the offense of bigamy and sent to the penitentiary for that offense, which he answered in the affirmative, there was no reversible error, as this gave no indication that the question called for testimony too remote, and the bill as qualified showed that the trial court had no knowledge that the conviction had occurred prior to the time indicated by the question. 4. —Same—Requested Charges—Defense of Property—Force Used. Where, upon trial of murder, the facts did not raise the issue that the homicide was in defense of property, but showed that the true issue was whether it was in defense of defendant’s person, there was no error in refusing requested charges on that subject; besides, these charges ignored the essential elements of the law of homicide in defense of property, namely, that of resorting to other means before taking life. Following Wells v. State, 63 Texas Grim. Rep., 622. 5. —Same—Charge of Courfck-Reasonable Doubt—Grades of Homicide—Requested Charge. Where, upon trial of murder, the court in separate paragraphs charged on the law of murder, manslaughter, and self-defense, and in one of the concluding paragraphs of the charge the court instructed on the law of reasonable doubt as applied to the whole case, and an exception was reserved to the failure of the court to charge on the law of reasonable doubt as between the grades of homicide, which the court refused to do, the same was reversible error. Overruling Little v. State, 39 Texas Grim. Rep., 655. 6. —Same—Rehearing—Presumption of Law—Deadly Weapon—Statutes Construed. The omission to charge article 1106, P. C., was not such fundamental error as would require reversal in the absence of a proper exception, under a correct interpretation of article 743, C. C. P. Following Williamson v. State, 74 Texas Grim. Rep. 293, and other cases. 7. —Same—Article 743, C. C. P.—Practice in Trial Court—Requested Charge. The construction placed upon the present practice Act is that the trial judge is still expected to write the law applicable to the case in his charge to the jury, and if he has inadvertently omitted some phase of the law, or, if he thinks some phase of the law inapplicable, where counsel for appellant entertains the contrary view, and the omission is specifically pointed out by written objection, it is not necessary in a felony case that a special charge be submitted to supply the omission.
91 Tex. Crim. 329Willis v. State (1922)
The opinion states the case.
91 Tex. Crim. 335Newton v. State (1922)
1. —Intoxicating Liquors—Manufacture—Sale—Bill of Exceptions—Accomplice —Requested Charge. Where, upon trial of illegal sale of intoxicating liquors, the evidence did not raise the issue of accomplice as to one of State’s witnesses, but merely the drinking of liquor illegally purchased by another, there was no ■ error in the court’s refusal to submit a requested charge that said State’s witness was an accomplice, or to submit that issue to them; nor, to reject certain testimony claimed by the defendant to show that said witness was an accomplice. Following Howard v. State, 233 S. W. Rep., 847, and other cases. 2. —Same-Case Stated—Accomplice—Rule Stated—Witness—Purchaser. That two, or two hundred men, had such friendly feelings or relations toward each other as that when one bought liquor the others felt themselves welcome or free to use it, would not make of them accomplices to the crime, or the seller of such liquor in any particular case. A witness must be criminally connected with the offense on trial before a charge on accomplice testimony is required, and the rule as to include a purchaser of the liquor as an accomplice cannot be extended to such a witness, and there was therefore no error in refusing the requested charges. 3. —Same—Rehearing—Practice on Appeal. Where the matter presented in the motion for rehearing are but a repetition of those passed upon in the original hearing, the motion will be overruled.
91 Tex. Crim. 339Ex Parte Holland (1922)
1. —Habeas Corpus—Indictment—Illegal Grand Jury—Collateral Attack—Ap- peal—Conviction. Where relator sought release under an indictment for robbery by an application of writ of habeas corpus to this court, before he was tried, and claimed -that the indictment was returned by an illegal grand jury because it was not selected by a jury commission, but by the sheriff under a writ issued under authority of the trial court at a special term, held: that this court is not cognizant of a collateral attack upon an indictment in which this court has annulled it, except in cases in which the constitutional pro- . visions concerning the organization of the grand jury has been disregarded, and even in those cases not until after the accused had been convicted and either appealed or lost his right of appeal. Following Ex parte McKay, 82 Texas Grim. Rep., 221. 2. —Same—Jury Commission—Selection of Grand Jury—Special Term. In the instant case this court is of opinion that the trial judge in failing, at the previous term of court, to provide for the selecting of the grand jury, at the special term did not act in an arbitrary manner in disregard of the provisions of the statute, as he did not foresee the need of a grand jury at the special term and therefore proceeded within the purview of article 399, C. C. P., and had the sheriff to summon the grand jury under an order and writ directed by the court, although he was authorized to appoint jury commissions during the said special term. Following King v. State, 234 S. W. Rep., 1107, and other cases. 3. —Same—Rehearing—Statutes Construed—Selecting Grand Jury—special Term. Referring to article 94, C. C. P., relator insists that a grand jury cannot be selected under the provisions of article 399, C. C. P., but this court adheres to the conclusion expressed in the original opinion that the method of selecting grand and petty jurors mentioned, is not exclusive, but is cumulative of other provisions of the statute. 4. —Same—Statutes Construed—Special Term—Grand Jury. At a regular term of the District Court the preferred way of selecting a grand jury is by jury commissioners, and that method is not to be arbitrarily disregarded at a special term, but article 399, C. C. p., is also available when it is not apparent that there will be' need of a grand jury at the beginning of the term, and there was a good reason for not then appointing jury commissioners and causing a grand jury to be selected by them, and subsequent developments made the grand jury necessary it might be selected by the sheriff in accord with article 399, supra.
91 Tex. Crim. 344Clay v. State (1922)
The opinion states the case.
91 Tex. Crim. 348McLaughlin v. State (1922)
The opinion states the case.
91 Tex. Crim. 348Wyatt v. State (1922)
Intoxicating Liquor—Unlawful Possession—Indictment. Where the indictment did not allege that the unlawful possession of intoxicating liquor was for the purpose of sale, the judgment must be reversed and the prosecution dismissed.
91 Tex. Crim. 349Counts v. State (1922)
Intoxicating Liquors—Possession—Sale—Indictment. The statute has so modified the law as to limit the offense of the possession of intoxicating liquor to the purpose of sale, and the indictment must so allege. Following Francis v. State, 90 Texas Grim. Rep., 67, and. other cases.
91 Tex. Crim. 350Powell v. State (1922)
Theft of Cattle—Sufficiency of the Evidence—Fictitious Name—Possession. Where, upon trial of theft of cattle, defendant claimed that he purchased the animal from a certain person named Raymond, which the evidence showed to have been fictitious, and the animal was either taken from the pasture or was in the road in the range, and therefore still in possession of the owner, and the evidence was sufficient to sustain the conviction, there was no reversible error.
91 Tex. Crim. 350Parrish v. State (1922)
1—Intoxicating Liquor—Unlawful Possession of., Equipment—Indictment— Repeal. The Second Called Session of the Thirty-Seventh Legislature omitted, in the amendment to the Dean Law any mention of the possession of equipment for manufacturing liquor, and such omission repealed the law. Following Cox v. State, 90 Texas Grim. Rep., 256, and other cases.
91 Tex. Crim. 352Armenta v. State (1922)
Murder—Withdrawal of Appeal—Abatement. Appellant having filed an affidavit in due form asking that he be permitted to withdraw his appeal, the application is granted, and the appeal is ordered abated.
91 Tex. Crim. 353Powell v. State (1922)Reversed, and prosecution, dismissed
Appeal from District Court, Young Coun-. ty; H. F. Weldon, Judge. L. B. Powell was convicted of possessing intoxicating liquor, and lie appeals.
91 Tex. Crim. 353Cates v. State (1922)
The opinion states the case.
91 Tex. Crim. 353Powell v. State (1922)
The opinion state’s the case.
91 Tex. Crim. 354Polk v. State (1922)
The opinion states the case.
91 Tex. Crim. 365Sweeden v. State (1922)
Theft of Automobile—Insufficiency of the Evidence. Where, upon trial of theft of an automobile, the record on appeal is so devoid of evidence showing appellant’s connection with the original taking, etc., as to necessitate a reversal of the case, the conviction cannot be sustained.
91 Tex. Crim. 367Andrews v. State (1922)
Appeal form the County Court of Howard. Tried below before the Honorable James T. Brooks. Appeal from a conviction of keeping a disorderly house; penalty, a fine of $200 and twenty days in jail. The opinion states the case.
91 Tex. Crim. 369Woodson v. State (1922)
The opinion states the case.
91 Tex. Crim. 371Ex Parte Reynolds (1922)
From Travis County. Original Habeas Corpus proceedings asking releíase from arrest under a warrant issued against the relator for refusing to testify as a witness before the grand jury. The opinion state's the case.
91 Tex. Crim. 371Jordan v. State (1922)
The opinion state's the case.
91 Tex. Crim. 373Sweak v. State (1922)
Tick Eradication—Appeal Bond—Practice on Appeal. Where no recognizance was entered into during the term, but appellant presented his appeal bond, which was not approved either by the sheriff or the judge, but only by the county clerk, and was not in compliance with the requirement of article 919, O. C. P., the appeal must be dismissed. Following Cryer v. State, 36 Texas Grim. Rep., 621.
91 Tex. Crim. 374Gerard v. State (1922)
1. —Robbery—Punishment—Statutes Construed—Verdict. Where, upon trial of robbery, the indictment alleged that the defendant had been theretofore convicted for a, like offense, and the jury found him guilty of the instant robbery, and also found that he had theretofore been found guilty of a former robbery, and not being instructed to fix the punishment did not fix the same, and the court entered thereon the judgment fixing the punishment at confinement in the penitentiary for life, under article 1619, P. C., there was no reversible error, the punishment being absolutely fixed by law. Following Murray v. State, 1 Texas Grim. App., 430, and other cases. 2. —Same—Insanity—Requested Charge—Practice on Appeal. Where, upon trial of robbery, the record contained on appeal what purports to be a bill of exceptions to the refusal of the court to submit the issue of insanity, but it appeared from the record also that no exceptions were taken at the time in writing, to the court’s failure to charge on the issue of insanity, and no special charge was requested, this court cannot review the matter. 3. —Same—Insanity—Remedy. If there. really be a question as to insanity, appellant is not without remedy under the statute. 4. —Same—Rehearing—Insanity—Charge of Court—Practice on Appeal. Where appellant contended in his motion for rehearing that it was incumbent upon the trial court to embrace the issue of insanity in his charge to the jury, although there was no request that he do so, and there was no exception to the charge because of his failure to do so, and counsel referred to former precedent: Held, that the decisions of this court must necessarily be read in the light of the statutes in force at the time of the trial to which the decision relates, and under the present statutes this court has no right to review a supposed error in the trial court in omitting to submit to the jury the issue of insanity when no complaint was made of the failure to do so at the time of the trial, and the motion for rehearing must be overruled
91 Tex. Crim. 377Scott v. State (1922)
Intoxicating Liquor—Possession—Indictment—Sale. Where, upon trial of possessing intoxicating liquor, the indictment failed to allege that the possession was for the purpose of sale, the judgment must he reversed and the cause dismissed.
91 Tex. Crim. 378Nothaf v. State (1922)
The opinion states the case.
91 Tex. Crim. 383Nicholson v. State (1922)
1. —Murder—Evidence—Confessions—Arrest—Statement Found True. Where, upon trial of murder, the defendant objected to the testimony of an officer as to what was said and done by defendant at the time he came into the police station because he was under arrest and unwarned, but it appeared from the record that reliance was had in the introduction of such statement that it was found to be true, and conduced to establish the guilt of the accused, the same was admissible. 2. —Same—General Reputation—Evidence—Predicate—Practice in Trial Court. Where defendant proved that the deceased’s general reputation was that of a dangerous and violent woman, there was no error in rejecting testimony of a number of witnesses offered by him to prove that deceased had made violent assaults upon them, he having laid no predicate that the accused knew or had been informed of the matters proposed to be given in such testimony at the time of the act charged against him. Following Willis v. State, 49 Texas Crim. Rep., 142 and other cases. 3. —Same—Evidence—Rebuttal—Practice in Trial Court—Discretion of Court. Where defendant objected to certain evidence introduced by the State after the defense had rested, because it was not in rebuttal, held, that this matter was largely within the discretion of the court, and in the absence of injury shown, there was no reversible error. 4. —Same—Rehearing—Bill of Exceptions—Practice on Appeal. Where, upon motion for rehearing, complaint is made because this court declined to consider a bill of exceptions taken to some remarks of the trial court, which bill was refused, for the reason, as stated by the trial judge, that no exception was taken to any statement made by him, and a controversy arose between the trial judge and attorneys as to whether certain matters occurred, same cannot be settled by this court, and the proper procedure is, where the trial judge denied the occurrence, this court must be governed thereby, as presented by bill of exceptions in the record.
91 Tex. Crim. 386Torres v. State (1922)
The opinion states the case.
91 Tex. Crim. 392McIntosh v. State (1922)
1. —Rape—Verdict—Punishment—Rule Stated. The fact that the jury do not render a verdict commensurate with the gravity of the crime, if proven, is no serious ground of complaint upon which might be based a request for a new trial. Bragg v. State, 73 Texas Crim. Rep., 340, and other cases; and where the testimony was sufficient to support the conviction, there was no reversible error. 2. —Same—Charge of Court—Evidence Other Than as to Prosecutrix—Other Offenses. Where, upon trial of statutory rape, testimony of other like offenses was introduced in evidence, and the same was duly limited, defendant’s complaint that the same was insufficient in not affirmatively instructing the jury on said testimony, was untenable. Besides, no requested instructions was presented. 3. —Same—Evidence—Impeaching Witness—Harmless Error. Where, upon trial of statutory rape, defendant complained of the refusal of the trial court to permit him to ask a certain State’s witness if a complaint had not been filed against her in the justice court charging her with being a vagrant, to-wit, a common prostitute, and that she was convicted thereon, the question should have been allowed, but in the instant case, under the facts, there was no reversible error. 4. —Same—Rehearing—(Impeaching Witness—Harmless Error. While it was error not to permit the defendant to show that a state’s witness had been convicted of being a common prostitute, yet under all the facts, such ruling of the court was harmless error, and there was no reversible error. Overruling Neyland v. State, 79 Texas Crim. Rep., 652; Ellis v. State, 56 Texas Crim. Rep., 14.
91 Tex. Crim. 398Ex Parte Francis (1922)
H. Milam, Judge. Habeas corpus proceedings by Alvin Francis to procure his release on bail. From an •order of the district judge remanding relator without bail, relator appeals.
91 Tex. Crim. 400Lyles v. State (1922)
The opinion states the case.
91 Tex. Crim. 402McNeil v. State (1922)
The opinion states the case.
91 Tex. Crim. 404Rivera v. State (1922)
Theft—Evidence—Defensive Theory—Flight. Where, upon trial of theft, the conviction largely depénded upon testimony of the flight of the defendant, he should have been permitted to explain the alleged flight, and failure to do so is reversible error. Following Arnold v. State, 9 Texas Grim. App., 435.
91 Tex. Crim. 405Plachy v. State (1922)
1. —Selling Intoxicating Liquor—Indictment—Statutes Construed. Where, upon trial of selling intoxicating liquor, defendant moved to quash the indictment upon the proposition that Chapter 61, Acts Second Called Session of the Thirty-Seventh Legislature so changed the law as to render same inoperative upon offenses of similar character as this, which were committed prior to the taking effect of the said amendatory chapter, the same was correctly overruled. 2. —Same—Indictment—Verdict—General Verdict—Two Counts in Indictment. Where the indictment charged two counts, one for unlawful possession of intoxicating liquor and the other for selling intoxicating liquor, and there was a general verdict of guilty, the same will be upheld as under the count for selling intoxicating liquor, the other count being defective. 3.—Same—Ex Post Facto Law—Rule Stated—Rule of Evidence Changed. It is well settled in this State that a law which alters the rules of evidence applicable in a given case so that under the new law less or different testimony is required to convict the offender than was required at the time of the commission of the offense, must be held an ex post faeto law, and not applicable upon the trial of one for an offense committed prior to the taking effect of such new enactment. Following Calloway v. State, 7 Texas Crim. App., 585, and other cases. 4.—Same—Case Stated—Statutes Construed—Accomplice—Charge of Court—■ Purchaser. The Dean Law which was in operation November 2, 1921, made the purchaser of intoxicating liquor punishable, and when used as a witness such purchaser was an accomplice, and this construction of the law must continue to prevail as to all violations thereof which occurred prior to the taking effect of the amendment to Chapter 61, supra; and where the court failed to submit a charge on accomplice testimony, as to the purchaser of the liquor, the same was reversible error. 5.—Same—Ex Post Facto Law—Rules of Evidence—Rule Stated. An ex post facto law is one which imposes a punishment for an act which was not punishable when it was committed, or imposes additional punishment or changes the rules of evidence by which less or different testimony is sufficient to convict. 7.—Same—Ex Post Facto Law—Purchaser—Accomplice—Intoxicating Liquor. Where, upon trial of the unlawful sale of intoxicating liquor which was committed prior to November 15, 1921, at which time the amended law went into effect, the case of the State depended upon the testimony of the purchaser of the liquor, the removal of the purchaser of intoxicating liquor from the ranks of accomplice testimony by the amended statute clearly makes possible a conviction on less evidence, and the court should have submitted the rule of the former law that the purchaser of liquor is an accomplice and that his testimony must be corroborated before a conviction can be upheld. 8. —Same—Witness—Accomplice—Charge of Court—Requested Charge. Where, upon trial of selling intoxicating liquor, nothing appeared in the record indicating that a certain state’s witness had any criminal connection with the purchase of said liquor, but only showed that he may have taken a drink of said liquor, he is not an accomplice, and there was no error in refusing a requested charge thereon. 9. —Same—Argument of Counsel—Admonition of State’s Counsel. This court regrets that it is so often called upon to review argument of counsel of matters de hors the record, and which should not be used in order to obtain convictions. 10.—Same—Cross-Examination—Defendant as a Witness. When one accused of crime becomes a witness in his own behalf, he is subject to the same character of cross-examination as any other witness. 11.—Same—Charge of Court—Practice in Trial Court—Sale of Intoxicating Liquor. Where complaint was made of the fact that in the charge of the court the trial court recited the various ways in which the Dean Law might he violated, while not reversible error, the better practice is that where one is charged with the selling of intoxicating liquor to state to the jury in the charge that the accused is on trial for such offense.
91 Tex. Crim. 410Freeman v. State (1922)
Tried below before the Honorable Geo. B. Hall. Appeal from a conviction of murder; penalty, ten years imprisonment in the penitentiary. - The opinion states the case.
91 Tex. Crim. 415Craig v. State (1922)
Intoxicating Liquor—Sale—Accomplice—Charge of Court. Where, upon trial of the sale of intoxicating liquors, the court refused to treat certain state’s witnesses as accomplices and refused to charge thereon, same was reversible error.
91 Tex. Crim. 417Jordan v. State (1922)
Intoxicating Liquor—Equipment—Possession—Repeal. Section 1 of Chapter 78, in so far as it made the possession of equipment for the manufacture of intoxicating liquors a crime has been repealed, and the judgment must he reversed and the cause dismissed.
91 Tex. Crim. 418Weaver v. State (1922)
The opinion states the case.
91 Tex. Crim. 419Staton v. State (1922)
Transporting Intoxicating Liquors—Possession—Reforming Judgment. The indictment for possessing intoxicating liquor being defective, but the count- for transporting being without fault, the judgment will be reformed and made to apply to the offense of unlawfully transporting intoxicating liquor, there being a general verdict. Following Pitner v. State, 37 Texas Grim. Rep., 272, and other cases.
91 Tex. Crim. 420Gilstrap v. State (1922)
The opinion states the case.
91 Tex. Crim. 421Cole v. State (1922)
Intoxicating Liquors—Equipment—Repeal of Law. The repeal of the statute as to the possession of equipment for the manufacture of intoxicating liquor makes it necessary that the judgment be reversed and the cause dismissed.
91 Tex. Crim. 422Bennett v. State (1922)
The opinion states the case.
91 Tex. Crim. 425Alexander v. State (1922)
Tried below before the Honorable R. T. Wilkinson. Appeal from a conviction of the unlawful possession of equipment for the manufacture of intoxicating liquor; penalty, one year imprisonment in the penitentiary.
91 Tex. Crim. 426Greer v. State (1922)
1.—Incest—Misconduct of Jury. Where upon appeal from a conviction of incest, appellant’s motion for new trial alleged misconduct of the jury, and the evidence introduced upon the hearing of the motion did not support the averments to the extent which would authorize a reversal of the case,- there was no reversible error. Besides, a remark by a juror about the testimony of some of the witnesses before the final conclusion of the testimony is not cause for reversal. Following Scott v. State, 43 Texas Grim. Rep., 599. 2.—Same—Allusion to Defendant’s Failure to Testify. Where there was no discussion in the jury room as to failure of appellant to testify in his own behalf, and the only reference thereto occurred during the progress of his trial, and. one of the juror’s said, “I wonder if the defendant will take the witness stand,” there being no reply to him, and no further comment was made, there was no reversible error. 3. —Same—Manner of Witness. It appears to this court that if a juror is sufficiently intelligent to do jury service it would be impossible for him not in some degree, in his own mind, to determine from the appearance and manner of the witness upon the stand, whether such witness was speaking the truth. 4. —Same—Appearance of Defendant. Appellant was necessarily before the jury during the trial, and if his countenance was not of a prepossessing character, and that the jurors may not have been impressed with his personal appearance, does not authorize this court to reverse the judgment and remand the cause. 5. —Same—Unsworn Statement—Practice on Appeal. In the absence of a statement of facts, this court cannot consider an unsworn statement, claimed by appellant to have transpired upon the trial.
91 Tex. Crim. 428Lyles v. State (1922)
The opinion states the case.
91 Tex. Crim. 430Woolridge v. State (1922)
1. -Murder—Death Penalty—Statement of Facts—Practice on Appeal. In the absence of a statement of facts, this court cannot reverse the judgment and remand the cause for a new trial, and must presume that the evidence was sufficient to sustain the conviction. 2. —Same—Rehearing—Statutes Construed—Statement of Facts—Practice on Appeal. The statute naming the time in which a statement of facts shall be filed in order to entitle it to consideration in this court is binding alike upon the litigant and the court, and where not filed in accord with the terms of the statute, this court is not privileged to consider it unless there are given sufficient reasons for the delay. However, this court not treating the statement of facts as an official one, finds that the evidence is sufficient to support the conviction, under a proper charge of the court.
91 Tex. Crim. 433Roberts v. State (1922)
1. —Misdemeanor Theft—Evidence—Confessions—Arrest. Where it appeared from the record on appeal that from the time of finding appellant in the restaurant he was not permitted by the officers to go at large or to be out of their custody until he was lodged in jail, his statements as to the theft to said officers was inadmissible. 2. —Same—Circumstantial Evidence—Charge of Court. Where, upon trial of theft, the defendant requested a special charge on eurcumstantial evidence, which issue was raised by the evidence, the refusal of same was reversible error. 3. —Same—Value—Rules Stated—Theft. Upon trial of misdemeanor theft, the prosecution should have proved some value of the property alleged to have been stolen. 4. —Same—Charge of Court—Reasonable Doubt—Presumption of Innocence. Upon trial of theft the court should have submitted a charge upon the presumption of innocence and reasonable doubt.
91 Tex. Crim. 434Hill v. State (1922)
Misdemeanor Theft—Insufficiency of the Evidence. Where, upon trial of misdemeanor theft, the evidence failed to establish a single element of theft, the judgment must be reversed and the cause remanded.
91 Tex. Crim. 435Ansley v. State (1922)
The opinion states the case.
91 Tex. Crim. 438Savage v. State (1922)
The opinion states the case.
91 Tex. Crim. 441Johnson v. State (1922)
1. —Assault to Murder—Newly Discovered Evidence. Where, upon appeal from a conviction of assault with intent to murder, appellant sought a new trial because of the alleged newly discovered evidence, but the defendant did not bring himself within the rule, by showing proper diligence, etc., in obtaining the. absent testimony there was no error in overruling the motion. 2. -—Same—Statement of Facts—Practice on Appeal. The document filed and denominated, as the statement of facts given upon motion for new trial, which consists in question and answer form, cannot be considered on appeal. Following Ferguson v. State, 83 Texas Grim Rep., 273, and other cases.
91 Tex. Crim. 443McIlvain v. State (1922)
The opinion states the case.
91 Tex. Crim. 446Harris v. State (1922)
1.—Robbery—Special Venire—Jury and Jury Law—Drawing Special Venire. Where exception was reserved to the refusal of the trial court to quash the special venire writ, and it appeared from the record, on appeal that in drawing the veniremen the clerk put into the box the names of all the persons designated by the jury commissioners for regular jury service, amounting to 270 men, and that of these one hundred had previously been drawn one time for special venire service, and that on the list drawn for appellant there were the names of 29 veniremen previously drawn for service, and another special venire, 20 of whom failed to respond to the summons, and in completing the jury it was necessary for the sheriff to summons talesmen, there was no reversible error, in not appearing that any right on the part of the jurors to claim the exemption had been made or any default in the attendance of qualified jurors in number corresponding to the venire ordered and drawn. 2. —Same—Special Venire—Rule Stated—Jury and Jury Law—Exemption. In order to obtain relief from jury service, for a given week, the juror may show that he has served on two special venires, or, if seeking relief from special venire services, he might show that he served one week as a regular juror and on one special venire, but unless some such facts are made to appear, he could not claim such exemption, and where it was no*, shown in the instant case that such exemption was claimed by the jurors, and the bill of exceptions having failed to show that any such right was claimed, or any default in the attendance of qualified jurors there was no error in overruling the motion to quash the venire writ. Following Moore v. State, 49 Texas Crim. Rep., 629, and other cases. 3. —Same—Co-ercion—Sufficiency of the Evidence—Accomplice—Corroboration. Where defendant claimed, upon trial of robbery, coercion on part of his co-defendant in participating in the robbery, and it was not shown that the*defendant had connection with the conspiracy, but it appeared from the record on appeal that defendant and his codefendant and others associated and conspired to commit the robbery antecedent thereto, the conviction is sustained, and the corroboration of the accomplice’s testimony was sufficient. Following Stanley v. State, 16 Texas Crim. App., 401, and other cases."
91 Tex. Crim. 455Winn v. State (1922)
Murder—Self-Defense—Charge of Court. Where, upon trial of murder, the evidence shows threats and the words and conduct of deceased were such as would demand a charge ou self-defense, failure to do so, although duly requested, was reversible error.
91 Tex. Crim. 457Reese v. State (1922)
The opinion states the case.
91 Tex. Crim. 461Stiles v. State (1921)
1.—Murder—Evidence—Bill of Exceptions—Contradicting Witness—Bull Stated. Where, upon trial of murder, the court permitted defendant to introduce defensive evidence showing the cruelty of deceased to defendant, extending over many years, as effecting her mental condition at the time she committed the homicide, there was no error in permitting the State to show that during said period of time; the witness had never seen any such cruel Conduct, etc., although he had had opportunity to observe it, under the rule that when any facts material to the issue was introduced by one side, the other has a right to deny, contradict, or explain. 2.—Same—Argument of Counsel—Standing and Influence of Prosecuting Attorney. Where, upon trial of murder, the attorney assisting in the prosecution stood high in influence among the citizens', and those who comprised the jury, and in his closing argument told them that if the deceased was the kind of a man that the defendant had testified him to have been, it would have been shown by the citizens of Kent County who were here as witnesses, and counsel knew that he was not that kind of a man. The same was reversible error, although the court had instructed the jury not to consider such remarks; as the same was obviously hurtful in spite of its withdrawal.
91 Tex. Crim. 468Robat v. State (1922)
Assault to Rape—Insufficiency of the Evidence. Where, upon trial of assault with intent to rape, it was essential to show that a specific intent to commit rape was established, and this must go beyond the mere possibility of such intent; and where the proof failed in this regard, the conviction cannot be sustained. Following Barnes v. State, 88 Texas Grim. Rep., 501, and other cases.
91 Tex. Crim. 469Sims v. State (1922)
The opinion states the case.
91 Tex. Crim. 471Pate v. State (1922)
1.—Bobbery—Accomplice—Insufficiency of the Evidence. Where, upon trial of robbery, it appeared there was nothing in the record at all tending to connect the accused with the robbery, in the absence of the testimony of his accomplice, the judgment must be reversed and the cause remanded. 2. —Same—Accomplice—Charge of Court—Form of Charge. Where, upon trial of robbery, depending upon the evidence of an accomplice, the charge was not in conformity with approved precedent, the lower court is directed to a form of charge approved by this court. Following Brown v. State, 57 Texas Crim. Rep., 576, and other cases. 3. —Same—Charge of Court—Joint Assault. Where, upon trial of robbery, the indictment charged an assault upon two certain persons and the use of violence toward both of them, and thus charged a joint assault, the court could not instruct the jury to find defendant guilty if an assault was committed upon either of them, or violence used toward either of them. Following Barton v. State, 88 Texas Crim. Rep., 370, and other cases.
91 Tex. Crim. 475Ex Parte Frazier (1922)
The opinion states the case.
91 Tex. Crim. 478Holland v. State (1922)
1. —City Charter and Ordinance—Secondary Proof. A copy of a newspaper purporting to publish the alleged ordinance is inadmissible in evidence, without accounting for the original ordinance. 2. —Injurying Fence of Another—City Charter and Ordinance—Insufficiency of the Evidence. Where the prosecution was based on article 1240, P. C., declaring it unlawful for any person to break, pull down, or injure the fence of another without his consent, and alleged that the fence belonged to the city of Overton, and was used for the impounding of stock, etc., in the corporate limits of said city, but the evidence showed no authority for the impounding of such stock and did not coincide with the averments in the information, the conviction could not be sustained, following Klein v. State, 39 Texas S. W. Rep., 369.
91 Tex. Crim. 480Blakeley v. State (1922)
Intoxicating Liquor—Possession—Indictment—Sale. An indictment for the possesion of intoxicating liquor under, the present law can he maintained only where the possession is for the purpose of sale. Following Francis v. State, 90 Texas Crim. Rep., 67, and other cases.
91 Tex. Crim. 480Blakely v. State (1922)
91 Tex. Crim. 481Estell v. State (1922)
1.—Manufacturing Intoxicating Liquor—Severance—Co-Defendant. Article 727, C. C. P., provides that upon making an affidavit setting out. substantially the provisions of said statute, a severance shall be granted, the only ground upon which such request may be denied is that if each party make a similar affidavit, the court may decide which is to be tried first, and the severance must not operate as a continuance, and where the allegation in the motion for severance is sufficient, the same should have been granted. Following Dodson v. State, 32 Texas Crim. Rep., 529. 2.—Same—Election by State—Practice in Trial Court. Where the indictment charged three counts, and the authorities permit the insertion of several counts which charges offenses similar in kind, or which might find support in the same kind of testimony, and there was therefore no error in refusing the motion to require the State to elect. 3.—Same—Change of Court—Intoxicating Liquor—Words and Phrases. Where the first count of the indictment charged the defendant with the unlawful manufacture of liquor capable of producing intoxication, the other two counts being defective, and the court charged the jury that the words “intoxicating liquor” include any spirituous, vinous, or malt liquors containing in excess of one per cent of alcohol by volume, the same was reversible error, as it was not responsive to the count in the indictment; and, besides, he instructed the jury that liquor containing one per cent of alcohol by volume is intoxicating, as a matter of law. 4.—Same—Rule Stated—Intoxicating Liquor—Federal and State Laws. There seems now no dispute of the fact that. Federal and State laws may make penal in the several jurisdictions, the sale, etc., of liquors of different alcoholic content, when not carrying it to the extent of allowing the sale, etc., of liquor which is, in fact, capable of producing intoxication.
91 Tex. Crim. 484Gray v. State (1922)
1. —Misdemeanor Theft—Recognizance—Jurisdiction—Words and Phrases. Where, upon appeal from a misdemeanor theft, the recognizance was incomplete in that it omitted the words “in this case,” it gives this court no jurisdiction of the appeal; however, the defect in the record having been cured, the order dismissing this cause is set aside and the case here is heard upon its merits. 2. —Same—Charge of Court—Claim of Right—Separate Property—Husband and Wife—Intent. Where, upon trial of theft, defendant was charged that he stole a ten dollar bill from a certain boy who lived with his mother and father, and the evidence showed that afterwards the mother claimed the money, which the boy carried to defendant’s store, who had given defendant’s father credit therefor, the court should have submitted the requested charge that if the father of the hoy was indebted to the defendant and the money was the property of the mother and that it was taken and afterwards applied on account they should acquit, as there was no claim that the money was the separate property of the wife; and besides, there was an absence of intent to steal. Following Young v. State, 37 Texas Crim. Rep., 467, and other cases.
91 Tex. Crim. 486Norman v. State (1922)
The opinion states the case.
91 Tex. Crim. 490Jurado v. State (1922)
1. —Receiving and. Concealing Stolen Property—Misconduct of Jury—Practice on Appeal. In the absence of a bill of exceptions, to the action of the court in overruling the motion for new trial because of the misconduct of the jury, and the evidence which was taken on said motion not being filed within the term of the court, the same canot be reviewed upon appeal. Following Probest v. State, 60 Texas Crim. Rep., 608, and other cases. 2. —Same—Sufficiency of the Evidence. Where, upon trial of receiving and concealing stolen property, the evidence was sufficient to sustain the conviction, there was no reversible error. 3. —Same—Rehearing—Practice on Appeal. Where, upon motion for rehearing, after a consideration of the record, this court comes to the conclusion that the original opinion, holding that the evidence is sufficient to sustain the conviction was correct, the motion for rehearing is overruled.
91 Tex. Crim. 494Harris v. State (1922)
Tried below before the Honorable E. A, Hill. Appeal from a conviction of murder; penalty, thirteen years imprisonment. in the penitentiary. The opinion states the case.
91 Tex. Crim. 494Ware v. State (1922)
The opinion states the case.
91 Tex. Crim. 496Meter v. State (1922)
Tried below before the Honorable Geo. B. Hall. Appeal from a conviction of the unlawful possession of intoxicating liquor; penalty, oneyear imprisonment in the penitentiary.
91 Tex. Crim. 496Meyer v. State (1922)
91 Tex. Crim. 497Wright v. State (1922)
The opinion states ease.
91 Tex. Crim. 497Sloan v. State (1922)
The opinion states the case.
91 Tex. Crim. 499Wright v. State (1922)
Theft—Name of Party Injured—Owner—Special Owner. Where upon trial of theft the alleged owner was F. S. Barron designated as a special owner, and the evidence showed that the alleged suit, case and its contents was held by the railway company of which Barron was an agent, etc., the same fully met the requirements of the law under ownership.
91 Tex. Crim. 500Cane v. State (1922)
The opinion states the case.
91 Tex. Crim. 501McClelland v. State (1922)
The opinion states the case.
91 Tex. Crim. 502Calloway v. State (1922)
1. —Burglary-—Suspended Sentence—Practice in Trial Court. Where defendant was convicted for a felony and judgment of suspended sentence was rendered, and thereafter at, a subsequent term of court he was placed upon trial for another felony case, the issue of suspended sentence should not have been submitted to the jury, but where the jury recommended a suspended sentence, the court erred in sustaining the State’s motion to strike out the suspended sentence and make, the punishment cumulative with the former conviction, and the judgment must be reversed and reformed by affirming and reinstating first sentence. 2. —Same—Rule Stated—Suspended Sentence—Final Judgment. Before the suspension of sentence can be set aside in a given case, and sentence therein be pronounced against the accused, there must be shown a final subsequent conviction of the accused of some other felony, and where there had been no final conviction at the time defendant’s suspended sentence was set aside in the instant case, the judgment must be reinstated, giving the appellant the benefit of suspended sentence.
91 Tex. Crim. 504Calloway v. State (1922)
The opinion states case.
91 Tex. Crim. 506Cottrell v. State (1922)
Incest—Accomplice—Corroboration—Insufficiency of the Evidence. Where, upon trial of incest, the evidence offered by the State for the purpose of corroborating the testimony of prosecutrix is entirely insufficient to meet the requirements of the law, the judgment must be reversed and the cause remanded. Following Skidmore v. State, 67 Texas Crim. Rep., '497, and other cases.
91 Tex. Crim. 507Walker v. State (1922)
The opinion states case.
91 Tex. Crim. 511Young v. State (1921)
1. —Murder—Variance—Name—Arrest of Judgment. The question of variance between the name of deceased, as alleged, and as same appears in the proof, cannot be of avail when raised in motion in arrest of judgment. This only reaches the indictment. 2. —Same—Conscientious Scruples—Veniremen—Capital Case. The State, in questioning veniremen, in a capital case, dependent upon circumstantial evidence has the right to ask each man if he has conscientious scruples against the infliction of death as punishment in such case. , Following Borders v. State, 72 Texas Grim. Rep., 135. 3. —Same—Jury and Jury Law—Veniremen—Deputy Sheriff—Challenge for Cause. That the veniremen, in a capital case, has been a deputy sheriff and has served some process in said case, is not ipso facto ground for challenge for cause, he being otherwise qualified. 4. —Same—Evidence—Letters—Handwriting—Bill of Exceptions. Where letters were offered by the State and obiect.ed to because not signed, and not shown to be in the handwriting of defendant, and the bill of exceptions showed that abundant proof was offered by the State upon said issue, there was no error. 5. —Same—Witness Under Rule—Practice in Trial Court—Discretion of Court. Excusing the sheriff from the rule and permitting him to remain in the courtroom while other witnesses were testifying is a matter largely within the' discretion of the trial court, and in the absence of abuse of discretion, there was no reversible error. 6. —Same—Evidence—Part of Statement—Rule Stated. While it is statutory that when a part of a statement is introduced in evidence the whole of such statement, upon the same subject becomes admissible by the opposite party, it is not necessary that- the party introdueing such statement shall introduce all of it. Following Davis v. State, 85 Texas Crim. Rep., 15, 209 S. W. Rep., 751. 7. —Same—Practice in Trial Court—Document—Letters. Letters and documents in evidence may be taken by the jury in their retirement. 8. —Same—Circumstantial Evidence—Charge of Court. When the court has charged on circumstantial evidence, it is not necessary that the jury be expressly told that this is a case of circumstantial evidence. Following Henderson v. State, 50 Texas Crim. Rep., 268, and other cases. 9. —Same—Remark of Witness—Practice in Trial Court. A reference by the court to that which is excluded, of testimony of a witness at the request of the accused, to the effect that it is of no weight is not error capable of injuring the defendant. 'Following McGee v. State. 37 Texas Crim. Rep., 658, and other cases. 10. —Same—Evidence—Expert Witness—Handwriting—Comparison. Cashiers and officers of banks, etc., who had had experience of passing on many signatures and letters may be held experts, regardless of whether they think themselves such and may testify to handwriting by comparison. Following Crow v. State, 33 Texas Grim. Rep., 364. 11. —Same—Evidence—Handwriting—Letters—Amanuenses. Where it was shown that the defendant could write and prior to his arrest had frequently written, there was no error in permitting the introduction of letters in evidence which were claimed by the State to be in defendant's handwriting, although it was shown that while defendant was in jail he got a fellow prisoner to do all his writing for him. 12. —Same—Evidence—Cross Examination—Recalling Witness. Where defendant complained that he was deprived of the right to cross-examine a certain state’s witness, having deferred such cross-examination for a time, but there is nothing in the bill of exceptions that the defendant was deprived and not allowed to ask said witness such questions as he wished when she was recalled, there was no reversible error, although it would have been erroneous to refuse to permit him to examine her at all, but in the absence of any injury, there was no reversible error. 13. —Same—Evidence—Rebuttal—Bill of Exceptions. Where the bill of exceptions, setting out the objections to the recital of certain testimony, gives no fact by which this court may determine how or in what way said evidence was not in rebuttal, there was no reversible 14. —Same—Argument of Counsel—Requested Charge—Reversible Error. Where, upon trial of murder, State’s counsel stated to the jury that there was no middle ground in the matter, and that the jury should hang the defendant, etc., and the court orally instructed the jury not to consider such remarks, there was no reversible error under the facts in the instant case, no written request or special charge relative to the matter having been asked for. 15. —Same—Bill of Exception—Evidence. Sufficient facts must appear in the bill of exceptions to enable this court to determine the correctness of objections made to certain evidence. 16. —Same—Argument of Counsel. Where the court orally instructed the jury not to consider the closing argument of state’s counsel, and the matter was not so injurious as to merit a reversal, in the absence of a written request, there is no error. 17. —Same—Husband and Wife—Cross-Examination—Acts of Witness. Where, upon trial of murder, on cross-examination of defendant’s wife about a certain pair of old shoes, which she denied being hers, there was no error to ask her if it was not true that when the sheriff and her father presented those shoes to her and asked her if they were not hers she did not break down and cry. 18. —Same—Bill of Exceptions—Practice in Trial Court. Where defendant, at the end of che record took a general bill of exceptions to the various qualifications to other bills of exceptions, but no facts were pointed out which would show such error, there was no reversible error. 19. —Same—Sufficiency of the Evidence. Where, upon trial of murder assessing the punishment of imprisonment in the peniténtiary for life, the evidence supported the conviction, there was no reversible error. 20. —Same—Name of Deceased—Buie Stated—Variance. Where the name of deceased was used both ways as “Shook” and “Shooks,” all through the trial, and no obiection thereto was reserved thereto by defendant, there is no merit in the contention that there is a variance in the allegation and proof of such name. 21. —Same—Evidence—Letter—Bill of Exceptions. Where a certain letter was objected to because it was a privileged communication between husband and wife, but the bill of exceptions did not show any such ground, there was no reversible error. 22. —Same—Evidence—Bill of Exceptions—Practice and Appeal. Where defendant was seeking to have the jury directed not to consider the testimony with reference to what the defendant claimed he had done while under arrest with reference to letters which a certain witness testified had been written for the defendant by a fellow prisoner, but the bill does not point out whether the information from said witness was elicited by the state or the defendant, and was otherwise defective, the same could not be considered, as the record presents itself.
91 Tex. Crim. 521Baker v. State (1921)
The opinion states ease.
91 Tex. Crim. 534Cottom v. State (1922)
The opinion states the case.
91 Tex. Crim. 538Tucker v. State (1922)
1. —Aggravated Assault—Simple Assault—Sufficiency of the Evidence. Upon trial of aggravated assault if a verbal charge was given, no exceptions thereto were taken, and a requested charge on simple assault was refused because on the weight of this, and other refused charges were fully-covered by one given at the request of the defendant, and the evidence supports the conviction, there was no reversible error. 2. —Same—Rehearing—Serious Bodily Injury. Where one suffers from a blow on the head after the external effect has disappeared, it would seem to warrant a conclusion that the bodily injury inflicted' was serious, and there was therefore no reversible error in finding defendant guilty of aggravated assault. Following Stephenson v. State, 27 Texas Grim. Rep., 461, and other cases.
91 Tex. Crim. 540Huckaby v. State (1922)
The opinion states the case.
91 Tex. Crim. 543Underwood v. State (1922)
The opinion states the case.
91 Tex. Crim. 546Washington v. State (1922)
Tried below before the Honorable V. H. Stark. Appeal from a conviction of assault to murder; penalty two years imprisonment in the penitentiary.
91 Tex. Crim. 549Ex Parte Copeland (1922)
1. —Contempt—Witness—Grand Jury—Rule Stated. It is clear that if a given answer does not involve that which incriminates the person to whom it is addressed, such answer may not properly he withheld by a witness called to testify before the grand jury. 2. —Same—Witness—Discretion of Judge—Rule Stateu. The witness, as will be seen, is not the exclusive judge as to whether he is entitled on this ground to refuse to answer. The question is for the discretion of the judge, who must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. Following Ex Parte Park, 37 Texas Crim. Rep., 594. 3. —Same—Rule Stated—Witness not Exclusive Judge of Question. Manifestly, a claim that an answer is refused because criminating cannot be held as established by the naked assertion of such fact; and is equally plain that to leave this matter to the ipse dixit, of one who for one or all of many motives might not wish to give evidence would be to withhold from the State all testimony of friends of the accused, or those who might be interested in defeating the ends of justice. 4. -—Same—True Rule—Witness—Judge—Incriminating Evidence. The true rule is that it is for the judge before whom the question arises to decide whether an answer to the question put may reasonably have the tendency to criminate the witness, or to furnish proof of the link in the chain of evidence necessary to convict him of a crime. 5. —Same—Case Stated—Witness Before Grand Jury. We are unable to see upon what ground relator, a witness before the grand jury, can support the proposition that he refused to answer because such answers would tend to criminate him, when immediately he declares that he had no criminal connection with any of the matters inquired about. 6. —Same—Constitutional Right—Immunity—Compelling Witness to Testify While the Bill of Rights declares that one accused of crime cannot be compelled to give evidence against himself, and the courts have always respected this mandate, yet it has been uniformly held that it was not violated by compelling one to give incriminating testimony against himself when by adequate authority he was given immunity from prosecution. Following Young v. State, 45 Texas Crim. Rep., 202, and other cases. 7.—Same—Immunity—Rule Stated—Witness Bound by Action of Court. The point raised by relators that while the State may be bound by appropriate action of the district attorney and the trial court, it is not competent for the court to compel one to give his testimony under such guarantee, but that notwithstanding the immunity thus tendered he would have the right to maintain his silence, is untenable. Following Hughes v. State, 62 Texas Grim. Rep., 289, and other cases. 8. —Same—Immunity by Statute—Immunity by Court—Witness Must Answer. The soundness of the contention that one guaranteed immunity by statute may be compelled to give testimony, but one guaranteed immunity by the court may not be so compelled, is not apparent. Following Ex Parte Muncy, 72 Texas Crim. Rep., 541, and other cases. 9. —Same—Immunity—State and Federal Jurisdiction—Real Danger. The reason urged that relator should not answer the questions because the State court and district attorney had no right to guarantee immunity from Federal prosecution, has such a shadowy and uncertain basis that it scarcely needs discussion, and the protection against self-incrimination is confined to real danger, and not to remote possibilities.
91 Tex. Crim. 559Newman v. State (1922)
Murder—Manslaughter—Misconduct of Jury. Where, upon trial of murder and a conviction of manslaughter, the record on appeal showed that the jurors were permitted to scatter and to receive matters addressed to them coming from the postoffice, and it was not shown that they did not relate to the case, to rebut the presumption of injury, the same was reversible error. Following Early v. State, 51 Texas Grim. Rep., 391, and other cases.
91 Tex. Crim. 561Hill v. State (1922)
1.—Theft—Suspended Sentence—Judgment—Practice in Trial Court. Where, upon trial of theft over the value of $50, the defendant filed an application for a suspended sentence, and the issue was submitted to the jury, who recommended the suspension of sentence, but the court refused to enter a judgment accordingly, but directed that the defendant’s confinement in the penitentiary be for a period of three years, same was reversible error; and because another jury returned into court another verdict against this appellant on the same day was not a sufficient reason. 2.—Same—Buie Stated—Final Judgment—Practice on Appeal. There must have been a final judgment in the latter case to justify the trial court in invoking the rule of procedure laid down in article 865-E, Vernon’s C. C. P. Following Ex Parte Lawson, 76 Texas Crim. Rep., 516, and the judgment of conviction herein will be reformed according to law.
91 Tex. Crim. 563Shell v. State (1922)
1.—Murder—Confession—Question and Answers—Bill of Exceptions. The mere fact that a confession is made in reply to Questions does not vitiate it; besides, that objection does not apply to the confession in the instant case. It relates the circumstances leading up to the killing and incident thereto, and appears to the court to be the statement of defendant telling in his own way the facts as best he could, and there being nothing to indicate that the confession was not voluntary, there was no error in admitting it in evidence; besides, the bill of exceptions is insufficient. 5.—Same—Declarations and Acts of Defendant—Letter—Evidence. • Upon trial of murder, the son of the defendant testified that within a few minutes after the killing he talked to his father, who told him what the devil could do for people, etc., and that the deceased had made threats against him and handed to the witness one sheet of a letter she had written to her husband, in which she stated that defendant was trying to lead her a dog’s life, whereupon the defendant offered other parts of the purported letter, to which objection was made by the State, because the same had not been identified, etc., there was no error in introducing the first part of the letter and rejecting the other portion. Distinguishing Corpus v. State, 51 Texas Crim. Rep., 315. 3.—Same—Mental Incapacity—Motion for New Trial—Newly Discovered Evidence. Upon motion for new trial setting up that defendant was of unsound mind and irresponsible for his acts, it did not appear from the bill of exceptions any statement of fact of the testimony upon the issue, same could not he considered on appeal.
91 Tex. Crim. 569McRuffin v. State (1922)
The opinion states the case.
91 Tex. Crim. 570Sims v. State (1922)
1.—Theft—Written Confession—Venue—Corroboration. Where the confession was definite that the theft had been committed by the defendant and another in the county of the prosecution, all of which evidence was corroborated, the same was sufficiently proven. 2.—Same—Corpus Delicti—Rule Stated, The confession, while not adequate alone, to establish the corpus delicti. was available in aid of other proof to do so. Following Harkey v. State, 90 Texas Grim. Rep., 212, and other cases.
91 Tex. Crim. 571Huckaby v. State (1922)
Theft From Person—Companion Case—Practice on Appeal. Where the facts involved in the instant appeal are identical with those in Cause No. 6874, the judgment will be reversed and the cause remanded for the same reasons.
91 Tex. Crim. 572Kolb v. State (1922)
The opinion states the case.
91 Tex. Crim. 574Ex Parte Pearson (1922)
The opinion states the case.
91 Tex. Crim. 575Odom v. State (1922)
Intoxicating Liquor—Possession—Indictment. Since the amendment of the first and second called session of the Thirty-seventh Legislature, the indictment in question must charge that the possession of intoxicating liquor was for the purpose of sale, and where this was not the case, the judgment must he reversed and the cause dismissed.
91 Tex. Crim. 575Wharton v. State (1922)
Assault to Rape—Aggravated Assault—Statement of Facts—Bills of Exception. In the absence of a statement of facts or bills of exception, the charge submitted to the jury being sufficient under the indictment, the judgment below is affirmed.
91 Tex. Crim. 576Martinez v. State (1922)
1. —Forgery—Jury and Jury Law—Practice in Trial Court. Where the clerk called the names of the first twelve men upon the list, among them being the name of Henri Therrien,' who failed to respond, and the court then instructed the clerk to call the next name on the list, which was that of R. E. Lee, to which defendant objected and asked the court to compel the attendance of the juror Therrien, but it did not appear from the record that said juror had been in attendance or whether his name was properly on the list, and the accepted juror was not .disqualified in any way, there was no reversible error. 2. —Same—Evidence—Bill of Exceptions—Practice in Trial Court. Where bills of exception to certain evidence, with reference to the transfer of money and the reason why the defendant did not pay the beneficiary, was because the latter had been divorced, etc., and did not meet the requirements of the rule relative to bills of exception the same cannot be considered on appeal. 3. —Same—Bill of Exceptions—Evidence. Where the bill of exceptions failed to state what the answer of the witness was, same cannot be considered on appeal.
91 Tex. Crim. 579Evans v. State (1922)
Assault to Murder—Aggravated Assault—Continuance—Motion For New Trial. Where it appeared from the record on appeal that there was a want of diligence as to two of the witnesses named in the application for continuance, and as to the other it appeared on motion for new trial that if the witness had been in court she would not have testified as claimed by the defendant and besides the motion for new trial was not supported by an affidavit from the witness, there was no error in overruling the motion.
91 Tex. Crim. 582Johnson v. State (1922)
1. —Murder—Bill of Exceptions—Questions and Answers. . Bill of exceptions in the form of questions and answers will not be considered on appeal. Following Ferguson v. State, 83 Texas Crim. Rep., 372, and other cases. 2. —Same—Race Discrimination—Bill of Exceptions. When an attempt is made to raise the question of discrimination on account of race and color, the evidence on such question, by bill of exceptions in question and answer form cannot be considered on appeal. Following Plummer v. State, 86 Texas Crim. Rep., 493, and other cases. 3. —Same—Reproduction of Testimony—Predicate. Where a proper predicate is laid, showing that the State’s witness had died since the former trial, reproduction of his testimony was admissible, following Porch v. State, 51 Texas Crim. Rep., 7, and other cases. 4. —Same—Charge of Court—Murder. Where the defendant objected to the court’s charge because the issue of murder was submitted, there was no reversible error in the instant case, in overruling such objectibn. 5. —Same—Manslaugher—Charge of Court. Where, upon trial of murder, the evidence called for the court’s charge on manslaughter as it appeared in the record, there was no error in refusing specially requested charges on the part of the defendant, on the same subject; besides, the main charge covered all the matters set out in the requested charges. 6. —Same—Argument of Counsel—Bills of Exception—Practice in Trial Court. Where the trial court . found that neither of the bills of exception tendered by both counsel for defendant and for the state were correct,' and prepared a bill himself in lieu thereof, there was no reversible error. 7. —Same—Rehearing—Suspended Sentence—Statutes Construed—General Reputation. Prior to the enactment of the suspended sentence law, the general reputation of the accused, when invited by himself, was limited to the particular trait of character then under investigation; this is not true under the suspended sentence law; but whenever that issue is raised, proof of general reputation must be made in accordance with the well established rules, and while defendant was not authorized to prove as original evidence that he had never before been arrested, specific acts of misconduct of the defendant are not available to the State on the issue of suspended sentence. Following Fountain v. State, recently decided. 8. —Same—General Reputation—Rule Stated. When accused undertakes to support, or the State to attack, his general reputation,' it must be done in the same manner, be governed by the same rules, and subject to the same exceptions where the suspended sentence law is involved as in other cases.
91 Tex. Crim. 592Waters v. State (1922)
Tried below before the Honorable J. R. Warren. Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary. The opinion states the case.
91 Tex. Crim. 603Punchard v. State (1922)
1. —Robbery—Bill of Exceptions—Evidence—Practice on Appeal. So much of the'surroundings antecedent or accompanying the facts must appear in the bill of exceptions as will enable this court to determine if the complaint urged be well founded. Where there is nothing of this sort in the bill, it cannot be considered on. appeal. 2. —Evidence—Practice on Appeal—Bill of Exceptions. Where appellant’s bill of exceptions alleges that while he was on the stand as a witness, he was asked certain questions by a certain juror as to where appellant was when he got the money, etc., but the bill of exceptions does not show the proper surroundings and setting, of the proposed procedings, to show error, there was no reversible error. 3. —Same—Charge of Court—Requested Charge by State—Ownership. Where the court submitted the following requested instructions on behalf of the. State, “Gentlemen of the Jury: At the request of the State you are further charged, that where two persons engage in a game of cards, betting money thereon, and one of the parties wins the other’s money, and the party losing delivers the money so lost, voluntarily to the winner, then, within the meaning of the law, the winner is the owner of the money so passed into his possession,” the same was proper under the facts of the instant case, and the evidence being sufficient to support the conviction, there was no reversible error.
91 Tex. Crim. 607Ex Parte Miller (1922)
1. —Habeas Corpus—Contempt—Grand Jury—Witness. Wheré relator was fined for contempt in not answering questions propounded by the grand jury, it appeared that the questions propounded were not intended to elicit information pertaining to an inquiry into any offense against the laws of the State, under investigation by the grand jury, the relator must be discharged. 2. —Same—Statutes Construed—Grand Jury—Witness. The scope of the authority of the grand jury and method or procedure and the conditions under which a witness refusing to respond to its inquiries may be punished in this State are prescribed by.statute. 3. —Same—Jurisdiction—Contempt—Habeas Corpus. As applied to the law of contempt, the term “jurisdiction” has a peculiar significance. The proceeding is summary and no right of appeal is provided, and the accused has the right to review by the way of habeas corpus. Following Ex Parte Degener, 30 Texas Crim. App., 566, and other cases. 4. —Same—Materiality of Question—Legal Province of Grand Jury. The contention by the State that relator is not entitled to release because of the materiality of the questions propounded by the grand jury is not a matter of concern to the witness, is untenable. Distinguishing Blair v. U. S„ 250 U. S., 273, and it is not within the jurisdiction of the trial court to enter judgment of contempt, unless the questions propounded are proper ones, and were material to some inquiry in the legal province of the grand jury. Following Allman v. State, 34 Texas, 673, and other cases.' 5. —Same—Statutes Construed—Contempt—Proper Questions. It is by virtue of Article 438 C. C. P., and it alone, that a witness may be ordered confined in jail, for the time and in the summary manner provided, and this extraordinary power cannot be exerted and such punishment imposed when, as in the instant case, the inquiry bears no relation to an investigation touching any offense against the laws of the State.
91 Tex. Crim. 612Ex Parte Jennings (1922)
Prom Wichita County. Original habeas corpus proceedings asking release under a judgment of contempt for refusal to testify before the grand jury. The opinion states the case.
91 Tex. Crim. 617Narsingle v. State (1922)
The opinion states the case.
91 Tex. Crim. 619Nothaf v. State (1922)
Assault to Murder—Assault and Battery—Charge of Court—Requested Charge Rule Stated. If there is evidence that no more was contemplated than an ordinary battery upon deceased, and that another upon an independent impulse or design killed the deceased, the court should charge affirmatively upon such theory, and inform the jury that if such was the purpose of defendant and that another besides the intent and purpose of defendant killed the deceased intentionally that the defendant will be guilty of no higher offense than an assault and battery, and where the trial court refused the requested charge comporting with the above rule, the same is reversible error.
91 Tex. Crim. 622Sotello v. State (1922)
The opinion states the case.
91 Tex. Crim. 625Ex Parte Wolf (1922)
Bail—Reduction of Bail—Habeas Corpus. Where, .upon appeal from habeas corpus proceedings, it appeared that the trial court had set the bail at $10,000 for assault to rape, and the bail usual in such, cases runs from $750 to $1000," the bail is reduced to the sum of $2500.
91 Tex. Crim. 627Ex Parte Martin (1922)
Habeas Corpus—Contempt—Grand Jury—Companion Case. Where the record in the instant case is an exact duplicate of that in the case of Ex Parte Jim Jennings, No. 6978, and Ex Parte Miller, 240 S. W. Rep., 944, this day decided, the same is disposed of in the same manner, and the relator discharged.
91 Tex. Crim. 627Turner Barton v. State (1922)
The opinion states ease.
91 Tex. Crim. 632Washington v. State (1922)
Tried below before the Honorable Robert G. Street. Appeal from a conviction of assault with intent to murder; penalty, five years imprisonment in the penitentiary.
91 Tex. Crim. 634Doddy v. State (1922)
The opinion states the case.
91 Tex. Crim. 636Scudder v. State (1922)
Misdemeanor Theft—Accomplice—Want of Corroboration. Where, upon trial of misdemeanor theft, the accomplice testimony was not sufficiently corroborated, the conviction could not be sustained.
91 Tex. Crim. 637Weaver v. State (1922)
The opinion states the case.
91 Tex. Crim. 642Hughes v. State (1922)
1. —Bunglary—Venue—Rule Stated—Practice on Appeal—Presumption. Where the statement oí facts contained no specific statement that the premises were in the county of the prosecution, but it appeared from the record on appeal that no issue was raised in the trial touching the question of venue, the presumption obtained that the venue was proved. Following Glassen v. State, 38 Texas Crim. Rep., 351. 2. —Same—Bill of Exceptions—Time of Filling. The law requires that bills of exception be filed within thirty ■ days unless there be granted an extension of time, and where in the instant case this did not appear, the bill of exceptions could not be considered.
91 Tex. Crim. 644Pinkston v. State (1922)
91 Tex. Crim. 644Pinktson v. State (1922)
Tried below before the Honorable Geo. E. Hosey. Appeal from a conviction of murder; penalty, twenty-five-years imprisonment in the penitentiary.
91 Tex. Crim. 646Evans v. State (1922)
The opinion states the case.
91 Tex. Crim. 648Aldridge v. State (1922)
1.—Murder—Clothing of Deceased—Evidence. Where, upon trial of murder, there was no serious controversy concerning the distance between the parties at the time the fatal shot was fired, etc., and the location of the wound, the introduction of the wife of the deceased to identify the articles of clothing worn by the deceased at the time of the homicide, was reversible error. Following Cole v. State, 45 Texas Crim. Rep., 233, and other cases. ?.—Same—Remarks by Judge—Practice on Appeal. Where the judgment is reversed and the cause remanded for other reasons, the complaint as to the remark of the court during the trial need not be considered.
91 Tex. Crim. 653Martin v. State (1922)
Intoxicating Liquor—Manufacture—Sufficiency of the Evidence—Accomplice. Where, upon appeal from a conviction of the unlawful manufacture of intoxicating liquor, the evidence was sufficient to sustain the conviction, and the contention that the principal witness for the State was an accomplice was not borne out by the record, the conviction is sustained.
91 Tex. Crim. 655McCoy v. State (1922)
The opinion states the case.
91 Tex. Crim. 659Darnall v. State (1922)
1.—Child Desertion—Witness Under Buie—Discretion of Court. Where upon appeal, the bill of exceptions, as to the placing of a witness under rule, failed to show any wilful failure on the part of the trial court to place said witness under rule, there is no error. 2.—Same—Variance—Complaint—Information—Initials in Names. Where appellant for the first time raises the question of variance between the complaint and in the information in this court, as to the initials of the names of the parties, and no motion to quash was made in the court below, same constitutes no reversible error. 3.—Same—Rehearing—Initials—Practice on Appeal. The presumptions and inferences are in favor of a sufficiency of the pleadings, and under the statutory directions mentioned in our original opinion, we must believe that the pleader was describing the injured person by the use of her initials.
91 Tex. Crim. 662Mercer v. State (1922)
The opinion, states the case.
91 Tex. Crim. 664Kellum v. State (1922)
Burglary—Defendant’s Failure to Testify—Misconduct of Jury—Attorney and Client. Where it was not shown when the discussion among the jurors took place, whether before or after they had agreed upon the verdict, there was no reversible error, and affidavits which were made before the appellant’s attorney could not be considered.