Volume 93 — Texas Criminal Reports

Tried below before the Honorable L. D. Guinn. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Manufacturing Intoxicating Liquor — Accomplice—Defendant as a Witness.</p> <p>Where the State’s witnesses were accomplices, and the court failed to submit this issue to the jury, to which refusal a bill of exceptions was taken, but the record on appeal showed that appellant himself testified, admitting fully that he manufactured the alleged liquor, there was no reversible error under Article 743, C. C. P., and the conviction was sustained. Following Trent v. State, 31 Texas Crim. Rep., 251, and other cases.</p>

<p>Selling Intoxicating Liquor — Accomplice—Purchaser.</p> <p>Under the original Dean Act, before its amendment, which became effective November 15, 1921, the purchaser of intoxicating liquor was an accomplice — and if the testimony relied upon to secure a conviction was only that of the purchaser, the measure of proof required by the statute was not met, and where the only State’s witness in the instant case was an accomplice, the conviction could not be sustained.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Habeas Corpus — Bail—Practice in Trial Court.</p> <p>Where there was no error in the action of the trial court in refusing bail in a capital case, the judgment is affirmed.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. — Practicing Medicine — Information—Defendant’s Residence.</p> <p>Where two counts of the information charged that the residence of the defendant was unknown, and also alleged that defendant had no authority to .pratice medicine in Uvalde County, or any other county in Texas, a motion to quash on the ground that such' allegation of unknown counties did not meet the requirements of the law, was correctly overruled. Distinguishing Hicks v. State, 88 Texas Crim. Rep., 438, 227 S. W. Rep., 303, and other cases, following Rutherford v. State, 79 Texas Crim. Rep, 605.</p> <p>2. —Same—Charge of Court — Certificate of Registration — Other Counties.</p> <p>Where the State made no effort to prove a failure on the part of the defendant to have his certificate registered, either in Dallas or Jefferson counties, where the evidence showed he had resided, and introduced no evidence supporting the allegation in the third and fourth counts of the inlormation to the effect that ne had no authority to practice medicine in any county of the State (except his failure to register in Uvalde County) the court should not have submitted to the jury the third and lourth counts, and instruct them that the absence of the record was prima-facie evidence that defendant had no certificate of authority.</p> <p>3. —Same—Charge of Court — Residence—Statutes Construed — Words and • Phrases.</p> <p>Where the court charged the jury that the term, “The county in which he resides,” as found in Article 750, 1?. C., is used in a sense which includes those who are actually stated dwellers in said county, although they might have a technical residence elsewhere, and if the jury believed from the evidence that detendant was an actual dweller in the county of the prosecution at the time he practiced medicine, and had removed from some other place- and brought his wife and child with him and was keeping house in said county and had come there for the purpose of remaining some time to practice medicine, etc., then his residence would be in said county of the prosecution, and refused defendant’s requested charge defining residence to be the true, fixed and permanent home of defendant and to which he intends to return, etc., there was no reversible • error, although the main charge was on the weight of the evidence, but no objection was raised thereto on this ground. However, the word residence as used in the statute should be given its ordinary meaning.</p>

<p>The opinion states the case.</p>

<p>1. — Swindling—Information—Statutes Construed — False Representation.</p> <p>The Act of 1913, page 184, chapter 98, subdivision 4, of the present Article of the Penal Code, 1422, simply added a specific declaration that swindling might be accomplished by giving a check upon a bank in which the drawer has no funds, "etc., and did not obviate the necessity of alleging in the information that the person swindled .relied upon the false representation. Following Blum v. State, 30 Texas Crim. App., 578, and other cases. It is not necessary, however, to aver verbal representation, but an averment that the check was believed good and that payment relied upon is deemed essential.</p> <p>2. —Same—Ownership—Possession—Variance.</p> <p>Where the information contained but one count, and named C. C. Willard as the party swindled, but the proof showed that the property was in charge ■of a clerk named Mangum and was purchased from, him and the check delivered to him, this did not support the averment that it was Willard who was swindled. Following May v. State, 15 Texas Crim., App., 430, and other cases.</p> <p>3. —Same—Requested Charge — False Representation.</p> <p>There was no error to refuse to give a requested charge that it was necessary to prove that some false or fraudulent representation was made by the defendant. It was enough to show that defendant gave a check when she was without funds, etc. Distinguishing Brown 1. State, 38 S. W. Rep., 1008.</p>

<p>The opinion states the case.</p>

Tried below before the Honorable- W. W. Walling. Appeal from a conviction of murder; penalty, death. On question of the insufficiency of the evidence and assessing death punishment: Williams v. State, 174 S. W. Rep., 1042.

<p>1. —Lottery—Information—Motion to Quash — Chewing-gum Vending Machine.</p> <p>Where the information alleged that on or about the 8th day of April, 1922, in Milam County, Texas, one John Queen, did then and there establish a lottery, the same being then and there a machine and device for the distribution of chewing gum and trade checks by chance among those patronizing said scheme, the said scheme being described substantially as follows: then setting out a description of ■ the chewing-gum vending machine, and its operation, a motion to quash was correctly overruled.</p> <p>2. —Same—Lottery—Distribution of Prizes.</p> <p>Any scheme for the distribution of prizes under the law of this State is a lottery, and it does not matter that in the drawing or distribution there are no blanks. Following Randle v. State, 42 Texas, 580, and other cases.</p> <p>3. —Same—Charge of Court — Lottery Machine.</p> <p>There was no error in the action of the trial court in instructing the jury that the machine described in the information was a lottery; and it is proper for the court to assume that the facts without dispute established that said machine was a lottery. Following Hegman v. State, 227 S. W. Rep., 954.</p> <p>4. —Same—Charge of Court — Intent.</p> <p>The guilt of one who is charged with the establishing of a lottery is not made to depend on the advice he may have received as to the innocent character of the device; nor on his own belief in the fact that it was not a violation of the law, and there was no error in refusing a charge on this phase of the case.</p> <p>5. —Same—Evidence—Bill of Exceptions — Personal Property.</p> <p>By proper bill of exceptions complaint is presented of the fact that witnesses were allowed to testify that they played at said machine, and to state what the result was, and what they got by their playing; because it showed that it was a disposal of personal property. This is untenable, for the statute makes it penal to establish a lottery or dispose of any estate, real or personal, by lottery. Distinguishing Howard v. State, 49 Texas Crim. Rep., 327, and the proof was necessary to demonstrate the operation of the lottery.</p> <p>6. —Same—Evidence—Good Faith.</p> <p>Where objections to testimony that a number of small boys came to play at said machine were sustained, and the refusal of charges presenting issues of good faith, there was no reversible error.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion' states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Misdemeanor Theft — Transfer from County Court to County Court at Law.</p> <p>The docket and minute entries of orders and judgments but reflect the real judgments of the courts, and where the county judge directed the transfer of the instant case to the County Court at Law prior to the docketing of said case, in the latter court, etc., it was -sufficient.</p> <p>2. —Same—Plea to the Jurisdiction — Practice in Trial Court.</p> <p>' A plea to the jurisdiction comes too late when made after trial, and appellants after submitting themselves to the jurisdiction of the County Court at Law and taking chances upon their acquittal cannot by complaint first appearing in their motion for new trial, object to the jurisdiction of said court</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Tried below before the Honorable L. D. Guinn. Appeal from a conviction of unlawfully manufacturing intoxicating liquor; penalty, one year imprisonment in the penitentiary. The opinion states the case.

<p>Gaming — Reputation of House — Statutes Construed.</p> <p>Where the allegation was that defendant gambled at .a private house and it was alleged as a fact that such house' was commonly resorted to for the purpose of gaming, this allegation could be established like any other fact by circumstantial as well as direct testimony, and the circumstances from which it could be inferred that the house was used for the purpose of gaming must be proved as any other fact, and not by proof of general reputation of the house. Following Cronin v. State, 30 Texas Crim. App., 278. Distinguishing Joliff v. State, 53 Texas Crim. Rep., 63.</p>

<p>The opinion states the case.</p>

Tried below before the Honorable V. H. Stark. Appeal from a conviction of selling intoxicating liquor; penalty, one year imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Tried below before the Honorable Henry S. Bishop. Appeal from a conviction of statutory rape; penalty, thirty years imprisonment in the penitentiary.

<p>The opinion states the case.</p>

Tried below before the Honorable Chas. L. Brachfield. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. The opinion states the case.

Tried below before the Honorable George E. Hosey. Appeal from a conviction of unlawfully manufacturing intoxicating liquor; penalty, one year imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

- Appeal from the District Court of Jefferson. Tried below before the Honorable W. H. Davidson. Appeal from a conviction of abortion; penalty, two years imprisonment in the penitentiary.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Murder — Accomplice—C'rroboration—Insufficiency of the Evidence.</p> <p>Where, upon trial of murder, the State’s case rested upon the testimony of an accomplice according to his own confession, and so treated in the charge of the court, which was without corre boration by other evidence tending to connect the defendant with the offense charged, the judgment must be reversed and the cause remanded.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Swindling—Indictment.</p> <p>Where, upon trial of swindling, the allegations in the indictment were sufficient to charge a violation of the statute, the general exception thereto was correctly overruled.</p> <p>2. —Same—Evidence—Conspiracy—Rule Stated.</p> <p>Where, upon trial of swindling, the evidence developed a conspiracy between defendant and other parties, there was no error in admitting the acts and declarations of each of the co-conspirators done and made in pursuance of the common design, to-wit, in getting the alleged money from the party injured, and also prior to obtaining the same as evidence against the defendant. Following Middleton v. State, 86 Texas Crim. Rep., 307.</p> <p>3. —Same—Evidence—Bills of Exception — Insurance Company — Change of Beneficiary.</p> <p>This court holds that questions relating to a change of beneficiary by the insurance company or the payment of premiums upon such policy, etc., are such matters as would not be of any moment, and that errors asserted in regard thereto are immaterial, and the same is true as to affidavit of the undertaker sent to the insurance company to prove death claim.</p> <p>i — Same—Bills of Exception — Evidence—Fraudulent Intent.</p> <p>In the opinion of the court a statement of the contents of many bills of exceptions obviate the necessity for any discussion of them at length, as matters relating to the receipt of the money which formed the basis of the swindle, and the disposition of same by the defendant or his wife were material circumstances bearing upon the fraudulent purpose and intent in the acquisition of said money, as were also the other matters contained in said bills of exception, and there is no reversible error.</p> <p>5. —Same—Sufficiency of the Evidence — Charge of Court.</p> <p>Where, upon trial of swindling, the evidence sustained the conviction, under a proper charge of the court, together with the theory of the defense, there is no reversible error.</p> <p>6. —Same—Continuance—Want of Diligence — Immaterial Testimony.</p> <p>Where the application for continuance showed a want of diligence and the alleged testimony of the absent witnesses was immaterial under the facts in the instant case, there was no error in overruling the same.</p> <p>7. —Same—Charge of Court — Principals.</p> <p>Where a number of exceptions were taken to the charge of the court, many of which seemed to be based upon an erroneous assumption that the act of one principal cannot be charged to another, etc., there was no reversible error.</p> <p>8. —Same—Rehearing—Indictment—Demurrer.</p> <p>Where appellant, in his motion for a new trial, took exceptions to certain language in the original opinion that a special exception was necessary to reach the fault of the indictment; held, that no such interpretation was intended.</p> <p>9. —Same—Indictment—Corporation—Representations—Particular Persons or Agents.</p> <p>Where it was urged that the indictment alleged that defendant intended to swindle and defraud, and did swindle and defraud, a corporation, that the alleged false representations were made to the corporation, and did not name the particular person or agent to whom they were made, and therefore charged no offense, held,’that the same is untenable, under Article 24 P. C., as in a proper case as in the instant one it may be properly alleged that the false representations were made to the corporation, qualifying Pruitt v. State, 83 Texas Crim. Rep., 148.</p> <p>10. —Same—Indictment—Written Proof of Death.</p> <p>Where it was contended in the motion for rehearing that the indictment is bad for failure to set out the written proof of death forwarded by defendant’s wife to the insurance company, and that in the absence of such instrument defendant’s objection on that ground should have been sustained when it was offered in evidence; held, that such contention is untenable, as this document was not the basis of the swindle. Morrow, Presiding Judge,, assenting under qualifications.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. —Transporting Intoxicating Liquor — Plea of Guilty.</p> <p>Where, upon trial of unlawfully transporting intoxicating liquor, defendant pleaded guilty and was represented by counsel, and it was agreed between him and the district attorney that the latter should recommend the minimum punishment, but the jury in their discretion vested in them by law, found the defendant guilty and assessed his punishment at one and one-half years in the penitentiary, there is no reversible error.</p> <p>2. —Same—Rehearing—Practice on Appeal.</p> <p>On consideration of appellant’s motion the court has discovered nothing to justify it in a change of views as expressed in the original opinion, the motion for rehearing is overruled.</p>

Tried below before the Honorable W. D. Howe. Appeal from a conviction of robbery; penalty, five years imprisonment in the peniteptiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Tried below before ■ the Hon. R. J. Williams. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of one hundred' dollars. ■ The opinion states the case.

<p>1. —Transporting Intoxicating Liquor — Continuance—Vehicle.</p> <p>It is not necessary that one own the vehicle used in the unlawful transportation of liquor in order to make out his guilt, and the allegation that the wife of defendant would testify that he did not transport liquor is but a statement of conclusion, and it is not necessary that the facts show that the liquor was transported for the purpose of sale, and the alleged testimony in the application for continuance was therefore not material.</p> <p>2. —Indictment—Motion to Quash.</p> <p>Where the indictment sufficiently charged the unlawful transportation of intoxicating liquor, a motion to quash was correctly overruled.</p> <p>3. —Same—Evidence—Bill of Exceptions.</p> <p>This court must decline to accept as proved, statements of. objections to the introduction of testimony, unless the fact of the existence is certified.</p> <p>4. —Same—Requested Charge — Practice on Appeal.</p> <p>There was no error in refusing appellant’s request for peremptory instructions of not guilty.</p> <p>5. —Same—Charge of Cotirt — Words and Phrases.</p> <p>When the charge the Court simply instructed the jury that .it is .urn lawful for any person to transport intoxicating liquor, and that if the jury found that the defendant so did transport same, they should return a verdict of guilty, there was no error, although the court did not define the term transport, and did not tell the jury that transportaion means carrying or conveying from one definite place to another for unlawful purposes.</p> <p>6. — Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of transporting intoxicating liquor, the evidence sustained the conviction, there is no reversible error.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Appeal from the District Court of Parker. Tried below before the Honorable F. O. McKinsey.</p> <p>Appeal from a conviction of burglary; penalty, four years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>Rape — Statement of Facts — Bills of Exception.</p> <p>Where the statement of facts and bills of exception .were not filed in the office of the clerk of the trial court within ninety days from the adjournment of the trial court, they are filed too late, and cannot be considered 01. appeal; and the indictment being in accordance with law, the charge of the court in proper form, the judgment must be affirmed.</p>

Tried below before the Honorable.W- H. Reeves. Appeal from the conviction of unlawfully carrying a pistol; penalty, a fine of $100. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Appeal from the District Court of Newton. Tried below before the Honorable V. H. Stark.</p> <p>Appeal from a conviction of manufacturing intoxicating liquor; penalty, one year imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

Tried below before the Honorable C. W. Robinson. Appeal from a conviction of theft; penalty, five years imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Tried below before the Honorable J. R. Warren. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>