Volume 96 — Texas Criminal Reports

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<p>Rape — Companion Case.</p> <p>Where, upon trial of rape, the facts relied upon were similar to those in the companion case, and the newly discovered testimony relied upon in each case is identical, the judgment is reversed’ and the cause remanded. Following Duncan v. State, 8002, recently decided.</p>

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

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

<p>1. —Murder—Evidence—Practice in Trial Court.</p> <p>Where the testimony with reference to flight of defendant’s companion after his arrest and during that flight the pistol of the deceased and cartridges fitting it were thrown into the alley was withdrawn from consideration of the jury, there is no error.</p> <p>2. —Same—Evidence—Acts of Deceased.</p> <p>The statement of the deceased to his sister as he was in the act of starting away that he was going to the home of defendant’s companion was properly received in evidence. Following Porter v. State, 86 Texas Crim. Rep., 43.</p> <p>3. —Same—Declaration of Deceased — Hearsay.</p> <p>The declaration of the deceased to his sister that defendant’s companion had borrowed his pistol is hearsay and was not available to the State to prove that defendant’s companion had borrowed the pistol of deceased.</p> <p>4. —Same—Evidence—Footprints—Measurement.</p> <p>The measurement and description of the footprints of defendant’s companion was properly received in evidence, and that both he and defendant were seen together in the afternoon of the day on which the deceased disappeared.</p> <p>5. —game—Evidence—Acts and Declarations of Third Parties — Conspiracy.</p> <p>While the evidence that one of the companions of the defendant was seen driving his car at night at a certain place was admissible, the same could not be used against the defendant unless there was proof of a conspiracy to kill the deceased.</p> <p>6. —Same—Requested Charge — Conspiracy.</p> <p>Where, upon trial of murder, the evidence revealed that the defendant was acting with others and the defendant prepared a comprehensive requested charge to the effect that the acts and declarations of his companions could not be considered as evidence of his guilt unless there was a conspiracy shown, the same should have been submitted, as this phase of the law was not embraced in the Court’s main charge. Following Wallace v. State, 46 Texas Crim. Rep., 341, and other cases.</p> <p>7. —Same—Requested Charge — Accessories—Accomplices.</p> <p>If there be sufficient circumstance to establish the guilt of the defendant of complicity in the offense, they leave such doubt of the nature of his connection with it as would render appropriate, ¡the submission of a charge on the law of accessories and accomplies as was requested by the defendant.</p> <p>8. —Same—Practice on Appeal.</p> <p>As the action of the trial court touching the examination of witnesses in the presence of the venire, etc., will not occur upon another trial, it is not necessary to repeat them here.</p>

<p>Appeal from District Court, Mantague County.</p> <p>On second rehearing.</p>

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<p>1. —Embezzlement—Bills of Exception.</p> <p>Where the bills of exception are not filed within time, they cannot be considered on appeal.</p> <p>2. * — Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of embezzlement, the evidence is sufficient to sustain the conviction, there is no reversible error.</p>

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<p>1. — Murder—Provoking Difficulty — Charge of Court — Converse Proposition.</p> <p>Where, upon trial of murder, the court’s charge on provoking the difficulty was without instructing the jury as to the converse of the proposition, same was reversible error under the facts of the instant case. Following Mason v. State, 88 Texas Crim. Rep., 642, and other cases. Besides, the propriety of charging upon the subject of provoking the difficulty is seriously questioned.</p> <p>2. — Same—Defendant as a Witness — Cross-Examination.</p> <p>Where, upon cross-examination of appellant upon trial for murder, the State asked him if he had not sold whisky to a certain party, which appellant denied, and the State then proved by said person that he had bought whisky from appellant, to all of which objection was raised and there was no connection between this transaction and the killing, the qrestion should not have been asked.</p>

From Liberty County. Original Habeas Corpus Proceedings asking discharge from illegal restraint, and in the alternative for writ of prohibition, etc. The opinion states the case.

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

<p>1. —Murder—Manslaughter—Charge of Court — Bill of Exceptions.</p> <p>Where defendant complained that the court’s charge required the jury to believe appellant’s defensive theory as a predicate for acquittal, whereas he was entitled to an acquittal if there existed in the mind of the jury a reasonable doubt as to whether his defensive theory was true, but it appeared from the record that no written bill of exceptions was taken to this paragraph of the Court’s charge, there was no reversiv'le error under article 735-743 C. C. P. Following Boaz v. State, 89 Texas Crim. Rep., 516, and other cases.</p> <p>2. —Same—Self-defense—Reasonable Doubt — Charge of Court — Rule Stated.</p> <p>It is required by statute that the Court’s charge before being read to the jury should be submitted to counsel and they must at that time present in writing any objection to the charge, distinctly specifying each ground of objection, and if no objection is made at that time, the case shall not be reversed because of errors in the charge, and, unless such errors were calculated to injure the rights of the defendant, or unless it appears he has not had a fair and impartial trial. Following Richardson v. State, 239 S. W. Rep., 218, and other cases.</p> <p>3. —Same—Charge of Court — Reasonable Doubt — Entire Charge.</p> <p>Where it appeared that in various parts of the Court’s charge in the instant case the Court presented the law of reasonable doubt, and that in most cases it is sufficient to apply the doctrine of reasonable doubt to the whole case, and the charge on self-defense was not specifically excepted to in writing in the manner now required by law, there is no reversible error. Following Eggleston v. State, 59 Texas Crim. Rep., 542, and other cases.</p> <p>4. —Same—Rehearing—Bill of Exceptions — Change of Court — Rule Stated.</p> <p>A bill of exceptions in form usual for such bills reciting that the charge of the Court was excepted to for various reasons, would not be sufficient to bring such alleged exceptions before this Court, unless the same appear to have been made in writing distinctly specifying each ground of objection, as is provided in article 735 C. C. P., and an oral exception is not sufficient.</p> <p>5; — Same—Special Venire — Sheriff’s Return.</p> <p>Where appellant complained of the overruling of his motion to quash the return under special venire and it appeared that his ground of objection was that as to thirty-three veniremen no return was made and as to the remaining thirty-eight the return was insufficient, but it appeared that the Court gave the sheriff time to amend his return although this amended return nor the supplemental motion to quash appears in the record, etc., it cannot be held that said return was insufficient.</p> <p>6. — Same—Evidence—Scene of the Shooting.</p> <p>No error was committed in admitting testimony as to- the blood found on the car or around the scene of the shooting, or that at the place where the body of the deceased was found there was a little blood.</p> <p>7. —Same—Requested Charge — Presumption.</p> <p>Where defendant contended that he was shot by deceased in the head and then took from her the pistol used by her and shot her with it, there was no error in refusing the requested charge to the effect that if deceased was armed with a pistol at the time she was killed, etc., the law presumes that the deceased intended to murder the defendant or inflict upon him serious bodily injury.-</p> <p>8. —Same—Evidence—Bill of Exceptions.</p> <p>Where the bill of exceptions, complaining that a witness stated that the body of the deceased had a wedding ring on its finger, stated only the grounds of the objections, the same presented no reversible error.</p> <p>9. —Same—Second Motion for Rehearing.</p> <p>Where appellant requested permission to file a second motion for rehearing, asserting that many alleged errors were not considered either in the original submission or on motion for rehearing, but this was not borne out by the record the request must be denied.</p>

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<p>Bail — Habeas Corpus — Vacation.</p> <p>Giving effect to the action of the trial judge in vacation and to the decisions of the court in causes similar in principle, we are constrained to believe that applicant is not shown to have exercised that diligent effort which should be indulged before we would feel justified in overturning the judgment of the lower court who is not bound to the agreement of counsel as to the amount of the bond. Following Ex Parte Thompson, 243 S. W. Rep., 910.</p>

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<p>Application for mandamus to compel the County Judge to compel the Justice of the Peace to make transcript of a ease in said Justice Court to be brought to said County Court.</p>

<p>1. —Selling Intoxicating Liquor — Impeaching Witness — Bills of Exception— Bystander’s Bill.</p> <p>This court is unable to discern any substantial conflict between the bills of exception, prepared by the court and the bystanders’ bills and both are considered in the instant case, and it is held that the defendant should have been permitted to have brought out the entire conversation of the witness Goldsmith with reference to the impeachment of the witness Bruton, and the judgment is reversed and the cause remanded.</p> <p>2. —Same—Bills of Exception — Buie Stated. — Bystander’s Bill.</p> <p>The effect of article 846 C. C. P., is not to be understood that a bystander’s bill is not available save as to matters not taken down by the court reporter and that his transcribed notes control. The article permits notes in narrative form relating to a disputed point in the testimony of a witness, but the enactment of that article does not repeal the statute pertaining to bystander’s bill.</p> <p>3. —Same—Bills of Exception — Practice in Trial Court,</p> <p>When appellant prepared his bills for inspection and presented them to the trial court, if they did not properly reflect the record, it was the duty of the court to refuse to certify them and also to prepare and file with the clerk bills of exception properly presenting the action and ruling of the court. However, the court had no right to qualify the bills prepared by the defendant without his consent, and when he is not satisfied he may then resort to a bystander’s bill.</p> <p>4. —Same—Conversation—Evidence—Buie Stated.</p> <p>Under the statute when part of an act declaration, or conversation is given in evidence by one party the whole on the same subject may be inquired into by the other, and when the State on cross-examination proved that the witness Goldsmith had been told by the witness Bruton that he had turned appellant in to the grand jury at a previous term of the court the State opened the way for proof by Goldsmith of all that was said to him by Bruton, on the same subject.</p> <p>5. —Same—Details of Transportation.</p> <p>Where objection was made to testimony upon the ground that it was going into unauthorized details touching the offense, the same should have been sustained.</p>

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

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

<p>1. —Perjury—Evidence—Written Statement.</p> <p>Where, upon trial of perjury, defendant complained of the testimony of the county attorney to the effect that appellant came to his office with two other men just prior to the time defendant testified before the grand jury, and made a written statement and swore to it, in which he stated that he, defendant, purchased intoxicating liquor from Ash and a man named Evans, because this was an ex parte affidavit made about another case then under investigation and that the same was not a confession, held that there was no error in overruling said exception.</p> <p>2. —Same—Bill of Exceptions — Practice on Appeal.</p> <p>This court has considered each of the other remaining bills of exception and has found nothing therein that seems to call for discussion and the same are overruled.</p> <p>3. —Same—Rehearing—Indictment—Approved Precedent.</p> <p>Where, upon trial of perjury, the indictment was drawn according to approved precedent, there is no reversible error.</p> <p>4. —Same—Indictment—More than One Assignment — Collateral Facts.</p> <p>It is the rule that when more than one assignment is laid in a perjury indictment those not material or not proved will be rejected, and still a conviction be upheld if material assignments appear and are supported by proof, and perjury may be assigned on false testimony as to facts which are collaterally, remotely, or circumstantially material, the extent of the materiality not affecting the question.</p> <p>5. —Same—Evidence—Confession—Affidavit.</p> <p>We do not think the issue of a confession vel non raised by said affidavit, the making of same by appellant was but a circumstance and testimony thereof tended to support the State’s claim that appellant swore falsely on the issue before the grand jury.</p> <p>6. —Same—Evidence.</p> <p>We are not inclined to believe ourselves in error in holding it proper for the trial court to have rejected the testimony of the witness Keen.</p>

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

<p>1. —Murder—Adequate Cause — Manslaughter—Charge of Court.</p> <p>Where, upon trial’of murder and a conviction for that offense, the court instructed among other things on self-defense but refused to submit charge on manslaughter, although the evidence raised the issue of adequate cause and that the defendant was probably incapable of cool reflection,' the judgment must be reversed and the cause remanded. Following Steen V. State, 88 Texas Crim. Rep., 256, 225 S. W. Rep., 529.</p> <p>2. —Same—Manslaughter—Charge of Court.</p> <p>The jury might or might not find that the shooting in the instant case was under the immediate influence of sudden passion, but in the opinion of this court the decision of that question was for the jury and not for the trial court and its refusal to submit a charge on manslaughter was reversible error. Following Pickens v. State, 218 S. W. Rep., 758.</p> <p>3. —Same—Charge of Court — Practice in Trial Court.</p> <p>After the trial court prepared his charge and submitted same to counsel for defendant who thereupon presented a number of exceptions to same and also special charges, and it appeared from the bill of exceptipns that the court after considering said exceptions and requested charges changed his main charge and thereafter refused to submit it to counsel for appellant for further exception, unless they themselves would agree to draw a complete charge either on self-defense or threats, and finally refused the same for further exception, this, under article 737a C. C. P., is reversible error.</p> <p>4. — Same—Motion for New Trial — Exceptions to Charge.</p> <p>The contention by the State that the defense can set up in a motion for new trial all matters of legitimate exception to the charge, etc., is untenable; the law as amended requires that the trial court submit his charge to the attorney for the defendant before same is read to the jury, and makes it the duty of such attorney to then take all exceptions to the charge, and after these exceptions have been considered the trial court may correct or change his charge but must then submit it again to1 defendant’s attorney for further exception. Following Czernicki v. State, 85 Texas Crim. Rep., 169, 211 S. W. Rep., 223</p>

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

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

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

<p>1. — Unlawful Transportation of Intoxicating Liquor — Date of Offense — Negative Averments.</p> <p>Where, upon trial of unlawfully transporting intoxicating liquor, the proof showed that the offense took place anterior to the time the indictment was filed, and within the period of limitation, and at a time when the law did not require that the indictment contain an averment negativing the exceptions, the verdict of conviction is warranted, and the misstatement of the date of the offense did not vitiate the indictment: Distinguishing Davidson v. State, 93 Texas Crim. Rep., 394, 248 S. W. Rep., 384.</p> <p>2. — Same—Alibi—Change of Court — Sufficiency of the Evidence.</p> <p>The only defensive theory presented was that of alibi. This the court submitted in a requested charge, and the evidence being sufficient to sustain the conviction the judgment must be 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>