Volume 97 — Texas Criminal Reports

<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. —Certified Public Accountant — Police Power.</p> <p>To find sanction, laws placing restrictions upon the exercise of lawful vocations must be referable to some subject within the scope of the police power such as the preservation of public health, safety, morals, or general welfare, nor does the law tolerate any unreasonable interference with the pursuit of a lawful vocation, etc., and the act of the Thirty-Fourth Legislature creating a State Board of Public Accountancy, etc., and authorizing to issue a certificate to the applicant as a certified public accountant of this state is a valid exercise of the police power.</p> <p>2. —Same—Rule Stated — Legislative Authority — Constitutional Law.</p> <p>Such regulations are not inhibited by the Fourteenth Amendment to the constitution of the United States, and the selection of subjects of such legislation and the means of regulation adopted are primarily subject to legislative decision, and the presumption of,validity and reasonableness obtains in a judicial inquiry unless the contrary is made to appear.</p> <p>' , — Same—Charge of Court — Advertising as Public Accountant.</p> <p>Appellant’s criticism of thq charge of the court directed against that phase of it which declines to sanction his contention that his act in advertising himself as a certified public accountant was not illegal, inasmuch is he did not state in his advertisement that he was such certified public accountant for the State of Texas, cannot be sustained.</p> <p>4. —Same—Evidence—Letters—Signature.</p> <p>The receipt of letters written by the appellant upon his stationery containing the words “certified public accountant,” with the letters “C. P. A.” appended to his signature were properly received in evidence.</p> <p>5. —Same—Definition of Act — Public Accountant — Initial Letters.</p> <p>The law does not inhibit the appellant or others similarly situated from pursuing the occupation or vocation or a public accountant in the State of Texas, but the act inhibited is that of holding out to the public that he holds a certificate issued in compliance with the statute of the State by using in his advertisements the term “Certified Public Accountant,” or the initials "C. P. A.”</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. —Selling Intoxicating Liquor, etc. — Final Judgment — Sentence.</p> <p>The sentence is the final judgment and no appeal will lie to this court from a conviction for a felony, save where the . death penalty may have been assessed, until after sentence has been pronounced and where the recital of the so-called judgment upon its face is incomplete the appeal must be dismissed.</p> <p>2. —Same—Rehearing—Supplemental Transcript — Sentence.</p> <p>In the opinion of this court! the supplemental transcript does not aid the record on appeal in any way by bringing forward the purported sentence. ‘The indictment containing two counts both of which were submitted and a general verdict rendered, there being no formal election by the State but an objection to the submission of a second count, and but one conviction was authorized, and the court failed to instruct the jury to state under which count, if any, they convicted, should have applied the judgment to one or the other of the counts, instead of condemning appellant of being guilty of the offense charged in the indictment, and the phrase “violation of prohibition Laws of the State of Texas” is not an offense known to our law, and the purported sentence is therefore no sentence at all, and this court cannot reinstate the appeal.</p>

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

<p>1. —Possessing Intoxicating Liquor for the Purpose of Sale — Bills of Exception — Rule Stated.</p> <p>It is imperative that bills of exception be filed within the time prescribed by law, otherwise this court is without authority to consider them, and no reason appearing in this record for the failure to prepare and cause the filing of the bills within the time which was granted by the court below they cannot be considered.</p> <p>2. —Same—Sufficiency of the Evidence — Companion Case.</p> <p>The facts are practically the same as were embraced in a companion case, and the evidence being sufficient to support the conviction the judgment is affirmed.</p> <p>3. —Same—Rehearing—Filing Bills of Exception.</p> <p>An extension order was entered on May 21, in which appellant was specifically given thirty days from the fourth of June. No other extension order appears in the record. Manifestly thirty days from the fourth of June would expire on the fourth of July, and the bills of exception in the record appearing filed at a later day cannot be considered.</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>Murder — Jury and Jury Law — Misconduct of Jury.</p> <p>The law declares that no person shall converse with the jury while in retirement except in the presence and by permission of the court, and in no case shall any person be permitted to converse with the juror about the case on trial, and where it appeared on appeal that the officer in charge of the jury in substance stated to them that the judge would detain them for another week and carry them into another county, etc., in the ev'ent of their failure to agree, etc., the judgment must be reversed and the cause remanded. Following: Hughes v. State, 81 Texas Crim. Rep., 526, and other cases.</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. —Manufacturing Intoxicating Liquor — Sufficiency of the Evidence.</p> <p>Where, upon trial of manufacturing intoxicating li'quor, the evidence sustained the conviction, there is no reversible error.</p> <p>2. —Same—Charge of Court — Medicinal Purposes.</p> <p>In the absence of evidence presenting any claim on the part of the accused that he manufactured intoxicating liquor for any of the excepted purposes, the court’s failure to submit a charge that defendant had a right to manufacture liquor for medicinal, etc., purposes, presents no error.</p> <p>3. —Same—Principals—Accomplice—Charge of Court.</p> <p>The court’s charge correctly presented the law of principals, and his instruction to the jury that a certain party was an accomplice was proper and not hurtful to the defendant.</p> <p>4. —Same—Evidence—Plight.</p> <p>Flight on part of the defendant after the crime is always admissible, and the weight to be attached to such testimony is for the jury, and propounding such question of flight to the witness is not subject to objection.</p> <p>5. —Same—Evidence—Person in Charge of Still — Opinion of Witness.</p> <p>The defense sought to prove that a person other than defendant was in charge of the still, exercising control of same, managing and doing around the still, making fires and whisky, and manifesting absolute control of the still at the time in question, there was no error in sustaining objection thereto, as the bill, as qualified, called for an opinion of the witness.</p> <p>6. —Same—Evidence—Flight.</p> <p>There was no error for permitting State’s attorney to ask defendant while a witness in his own behalf if he did not run from the officer and was out on a scout for some six months.</p> <p>7. —Same—Rehearing—Accomplice.</p> <p>Where the State’s witness, whom the court assumed to be an accomplice, admitted on cross-examination that he had been convicted and sentenced to a year in the penitentiary for his participation in the instant transaction, the court properly charged that the witness was an accomplice.</p> <p>3. — Same—Evidence—Conclusion of Witness.</p> <p>While the court declined to permit the witness Baucham to give his conclusion as to who appeared to be in control and management of the still from the movements of the parties, he did permit said witness to detail the acts of said party, and with particular reference to the appellant to state that he did nothing in reference to taking a part whatever in the manufacture of liquor, and there is 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>Dorsey v. State, 38 Texas Crim. Rep., 527; J. Borns Baking Company v. Samuel McKeever, 189 N. W., 383; Ex Parte Humphreys, 244 S. W., 822.</p>

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

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

<p>1. —Manufacturing Intoxicating Liquor — Declarations of Co-Conspirators.</p> <p>Where, upon trial of unlawfully manufacturing intoxicating liquor, the testimony of the State’s witnesses, etc., was that all the parties mentioned were engaged in the unlawful manufacture of intoxicating liquor, arid it appeared from their conversation that they had formed a conspiracy to resist arrest and had provided themselves with arms, and they did resist arrest, and shots were fired, their acts and declarations were admissible in evidence,. Following: Richards v. State, 53 Texas Crim. Rep., 400, and other cases. The testimony was also admissible as res gestae.</p> <p>2. —Same—Evidence—Location of Wounds — Harmless Error.</p> <p>Although testimony with reference to the location of the wounds on one of the parties was excluded and might have been res gestae but the exclusion was harmless under the facts of the instant case, there is no reversible error.</p> <p>3. —Same—Evidence—Declarations of Defendant.</p> <p>Where the declarations of one of the co-conspirators before leaving home could be more accurately classified as hearsay, there was no error in excluding the same. Following: Medford v. State, 86 Texas Crim. Rep., 239.</p> <p>4. —Same—Experimental Testimony.</p> <p>The rejection of the testimony of the witness Shaw concerning the experiment made by him after the transaction, in order to demonstrate that the officers could not have identified the appellant and his companions was not reversible error.</p> <p>5. —Same—Evidence—General Reputation.</p> <p>Where the rejection of testimony as to the good reputation of the appellant for truth and veracity on cross-examination was harmless, there was no reversible error.</p> <p>6. —Same—Rehearing—Conspiracy—Res Gestae.</p> <p>Where it was shown that what was done by one of the conspirators and also by the officers who began shooting at the co-conspirator when he offered to shoot at them was part of the res gestae, there was no error.</p> <p>7. —Same—Location of Wounds.</p> <p>The court cannot see how the location of the wounds on one of the parties could have possibly affected the issue as to the guilt or innocence of the appellant in the matter of manufacturing intoxicating liquor, and there was no reversible error in rejecting same.</p> <p>8. —Same—Experimental Testimony. ></p> <p>Where none of the parties present at the time were at the place on the night in question, and it appears manifest that they could not meet the requirements laid down for the receipt of experimental testimony and could ñot show that the experiment was made under the same or similar circumstances which surrounded the actual occurrence, there was no error in excluding same. ■</p>

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

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

<p>1. —Selling Intoxicating Liquor — Continuance—Impeaching Evidence.</p> <p>Where the application for continuance not only showed want of diligence but demonstrated the immateriality of part of the testimony, and that most of it was of an impeaching character, and in the absence of an ■ affidavit of the absent witness the overruling of the application is upheld.</p> <p>2. —Same—Transcript—Special Term.</p> <p>Special terms of the District Courts are legal and authorized by statutes, and where the first time in this court appellant asserted that it was not shown by the transcript that the necessary formalities were observed in i calling said special term, there is no reversible error. ;</p> <p>3. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of unlawfully selling intoxicating liquor the evidence supported the conviction, there is no reversible error.</p> <p>4. —Same—Rehearing—Transcript—Special Term of Court — Issue of Fact.</p> <p>Where the only contention in the motion for rehearing is that the transcript does not show the authority by which or the manner in which the court below called the special term during which this trial was had, the same must be overruled, as an issue of fact is thus raised which cannot be tried in this court.</p> <p>5. —Same—Jurisdiction—Special Term.</p> <p>Where appellant was charged with a felony in Jones County by indictment apparently at the regular term of the District Court in said county and convicted therein at a special term of said court and went to trial without objection, this court is compelled to presume that all necessary steps were taken in order to make said special term legal. Following: Wilson v. State, 223 S. W., 221; Mayhew v. State, 69 Texas Crim. Rep., 187, and other cases.</p>

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

<p>1 — Unlawfully Possessing Intoxicating Liquor — Silence of Defendant — Declaration of Third Party.</p> <p>Where, upon trial of unlawful possession of intoxicating liquor, the justice of the peace was permitted to testify that about four months before the date of the transaction, he said to the defendant: “You have been bootlegging, Frank, take a fool’s advice and quit, or you are going to get into trouble;’’ and that to this the defendant made no reply, and that the justice made this declaration because he had previously looked through the window of defendant’s dwelling and observed him pouring whisky and water into soda water bottles, this was reversible error. Following: Calloway v. State, 65 Texas Crim. Rep., 262, and other cases.</p> <p>2. — Same—Evidence—Practice in Trial Court.</p> <p>There was no error in receiving in evidence the statement of the justice of the peace touching what he saw while looking through the window, nor of the sheriff concerning what he learned by virtue of the search warrant, nor was the act of defendant in opening the door of his premises to let the sheriff execute the warrant such an act as would be inadmissible under the confessions cited.</p>

<p>Manufacturing Intoxicating Liquor — Bill of Exceptions.</p> <p>Where, upon trial of manufacturing intoxicating liquor, hills of exception complaining of the rejection of testimony for the defendant would at most have rebutted or tended to rebut the proposition that appellant was present, taking part in the manufacturing of the liquor, and the facts irresistibly showed the presence of the defendant and his headlong flight when the officers approached, etc., there is no reversible error, and the conviction being otherwise fully sustained by the evidence, the judgment is affirmed.</p>

<p>1. —Possessing Intoxicating Liquor for the Purpose of Sale — Practice on Appeal — Ees Gestae.</p> <p>Where, upon trial of possessing intoxicating liquor for the purpose of sale, the court’s charge on principals did not give undue prominence to this theory, and the testimony of the State’s witnesses as to the drinking of the liquid which smelled like choc beer, etc., was a part of the res gestae of the transaction, and the movements of said witnesses became material as shedding light upon the guilt of the defendant there was no reversible error.</p> <p>2. —Same—Evidence—Identification.</p> <p>There was no error in admitting testimony of State’s witnesses buying two drinks from one of the State’s witnesses, nor as to the identification of a certain bottle which contained the whisky in question, and the acting together of the parties, nor the testimony of the sheriff that he found a certain empty bottle with the odor of whisky on defendant’s premises.</p> <p>8. — Same—Evidence—Declarations and Acts of Principals.</p> <p>Appellant’s movement in and around the premises, and his presence and assistance in carrying on whatever business might have been carried on on the place in question by his co-principals and himself were material questions and admissible in evidence and there is no reversible error.</p>

<p>Theft — Argument of Counsel — Statement of Facts.</p> <p>Where, upon trial of misdemeanor theft, during the argument of the assistant district attorney i he said, “From the way she operated this defendant is a professional shoplifter” to which objection was raised, held that in the absence of a statement of facts it cannot be determined whether there was error, and 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>

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

<p>1. — Murder—Misconduct of Jury — Failure to Testify.</p> <p>Where defendant made a motion on account of the misconduct of the jury, trying him, in that they discussed his failure to testify, having been submitted to the trial judge the truth of the averments in the motion being controverted, and testimony introduced both by affidavits and orally and the motion overruled without showing abuse of discretion on the part of the trial judge, there is no reversible error. Following: Fox v State, 53 Texas Crim. Rep., 150.</p> <p>2. —Same—Defendant’s Failure to Testify.</p> <p>The mention of the appellant’s failure to testify, made, as in this case, after the jury had reached the conclusion that he was guilty and had determined that his punishment should be death or imprisonment for ninety-pine years, in view of the verdict, would not justify a reversal. Following: Wilson v. State, 87 Texas Crim. Rep., 538.</p> <p>3. —Same—Evidence—Cross-Examination—Husband and Wife.</p> <p>On cross-examination of the wife of the deceased, appellant asked her if it were not a fact that upon a certain occasion she attempted to shoot Will Chadwick in the back with a pistol, and that on another occasion she attempted to poison N. H. Hutson by placing glass in his milk, to which State raised objection which was sustained, there was no reversible error. Following: McAfee v. State, 17 Texas Crim. App., 139.</p> <p>i — Same—Evidence—Practice in Trial Court.</p> <p>The fact that the shotgun which was used ih the homicide and introduced in evidence remained in the courtroom until it was removed therefrom by request of the appellant, violates no rule of evidence.</p> <p>5. —Same—Length of Argument — Practice in Trial Court.</p> <p>After one of the counsel for the appellant had spoken for an hour and ten minutes, the court drew his attention to the fact that the time tentatively agreed upon for discussing the facts before the jury had expired and the court refused to extend the time, this was no reversible error, in the absence of a showing that an unreasonable limitation was placed upon argument of counsel. Following: Parkerson v. State, 9 Texas Crim. App., 72.</p> <p>6. —Same—Evidence—Letter.</p> <p>Upon trial of murder there was no error to admit in evidence a certain letter purported to have been written and addressed to the deceased signed Bill Jones, insisting that the deceased return to his wife at once, otherwise the matter would be referred to the Ku Klux Klan; the wife of the deceased having identified this letter and testifying that she had written it at the dictation of the appellant and that he had mailed it, under the facts of the instant case, and while this testimony should have been limited no instruction having been asked therefor, there is no reversible error. Distinguishing: Bishop v. State, 68 Texas Crim. Rep., 559, and other cases.</p> <p>7. —Same—Rehearing—Argument of Counsel — Limitation of Argument.</p> <p>While the record in the instant case reflects many facts and issues calling for discussi.on, this court cannot agree that an hour and a half for discussion was such an abuse of discretion of the trial judge as should call for reversal of the case, but the court calls the attention of trial judges to the fact that they should under no circumstances unreasonably restrict the argument of counsel.</p> <p>8. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder and a conviction therefor, the evidence supported the same, there is 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>False Swearing — Sufficiency of the Evidence.</p> <p>In the absence of statement of facts and bill of exceptions, the indictment being sufficient and the charge of the court in conformity with the law the judgment below 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>Simple Assault — Charge of Court — Different Degrees of Offense.</p> <p>Where defendant was charged with assault to murder and the evidence did not show the size of the knives used by the defendant or by which the size could be inferred from the character of the injuries inflicted, and the trial court submitted a charge on simple assault of which defendant was found guilty, there was no error under subdivision 2 of article 772 C. C. P., providing that assaults include all assaults of an inferior degree.</p>

<p>Habeas Corpus — Reduction of Bond.</p> <p>Where the record on appeal disclosed that relator was held by the sheriff under two capiases issued from the Justice Court based upon complaint filed therein one charging that relator unlawfully transported intoxicating liquor and the other charging him with the possession of intoxicating liquor for the purpose of sale, and bail had been fixed by the sheriff in each case in the sum of $500, and the district judge declined to reduce said bail, from which an appeal.is taken to this court, the judgment below is affirmed.</p>

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

<p>1. — Unlawful Possession of Intoxicating Liquor — Sufficiency of the Evidence.</p> <p>Where, upon trial of unlawfully possessing intoxicating liquor for the purpose of sale, the evidence was sufficient to sustain the conviction, there was no error on that ground.</p> <p>2. —Same—Search Warrant — Affidavit.</p> <p>Where the search warrant and affidavit for the search warrant were introduced in evidence, there was no error in overruling the objection thereto. Following: Gurski v. State, 93 Texas Crim. Rep., 612, and other cases.</p> <p>3. —Same—Evidence—Selling Whisky.</p> <p>Upon trial of unlawfully possessing intoxicating liquor for the purpose of sale, there was no error in admitting evidence that the appellant had previously sold whisky.</p> <p>4. —Same—Charge of Court — Burden of Proof — Beverage Purposes.</p> <p>Upon trial of unlawfully possessing intoxicating liquor for the purpose of sale, the charge of the court to the effect that if the appellant possessed intoxicating liquor for the purpose of sale, the burden was upon him to show that it was possessed for medicinal, mechanical, sacramental, or scientific purposes was unauthorized, as there was no evidence of this sort. The court should have charged the jury that upon the date of the transaction in question, it would not have been unlawful to possess liquor for beverage purposes.</p> <p>5. —Same—Argument of Counsel — Reversible Error.</p> <p>Where State’s attorney in his argument said that when defendants are found in possession of intoxicating liquor and plead not guilty, they do not take the stand and explain the purpose for which they possessed it, is reversible error.</p> <p>6. —Same—Argument of Counsel — Declaration of State’s Counsel.</p> <p>Where State’s attorney in his closing remarks said that the defendant summoned witnesses to impeach certain witnesses, but that these witnesses had told the State’s attorney that they would swear for the State, this was not in the nature of argument but of testimony and reversible error. Following: Askew v. State, 54 Texas Crim. Rep., 414, and other cases.</p> <p>7. —Same—Practice on Appeal — Punishment.</p> <p>Where the jury assessed against the appellant double the minimum penalty, this court is unable to say that they were not influenced by the improper argument of the State’s attorney and the judgment must be reversed and the cause remanded.</p>

<p>1. —Misdemeanor Theft — Hearsay Evidence — Theft of Turkeys.</p> <p>Where, upon trial of misdemeanor theft, the State was permitted to introduce hearsay evidence against the defendant as to how he acquired the alleged stolen property, the judgment must be reversed and the cause remanded.</p> <p>2. —Same—Complaint—Information—Value.</p> <p>There was no error in overruling appellant’s motion to quash the complaint and information upon the ground that same did not accurately state the value of the turkeys. Theft of property of any value of less than fifty dollars would be a misdemeanor of which the County Court has jurisdiction.</p>

<p>1. —Burglary—Consent—Sufficiency of the Evidence.</p> <p>Where, upon appeal from a conviction of burglary, appellant insisted that the record failed to show want of consent on the part of the alleged owner, but the record showed want of consent proved by circumstantial evidence, and also the declaration of the owner that the defendant did not have his permission to enter the store, or to take anything out of it, the conviction is sustained.</p> <p>2. —Same—Requested Charges — Bill of Exceptions.</p> <p>Where appellant complained of the refusal of a requested charge which sought to have the jury told that evidence of another offense was admitted solely as affecting the credibility of the accused as a witness, and that they could not consider this other kind unless it had been shown to their satisfaction beyond a reasonable doubt that the accused was guilty of the other crime, held there was no error in refusing this requested charge. Distinguishing: Lankford v. State, 248 S. W. Rep., 389.</p> <p>3. —Same—Credibility of Witness — Rule Stated.</p> <p>Under the holdings of this court it may be shown for the purpose of affecting credibility that a party has been indicted, even though he may also have been acquitted in such case.</p> <p>4. — Same—Bill of Exceptions — Former Conviction — Felony.</p> <p>Appellant’s objection to inquiry relative to his conviction of a felony at a former time in which case he received the suspended sentence, but did not show that application had been made to have the judgment set aside, etc., there is no reversible error in overruling the objection, and the evidence being sufficient to sustain the conviction, there is no error.</p>

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

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

<p>Rape — Indictment—Election by State — Charge of Court — Verdict.</p> <p>Where the indictment contained two counts charging rape without consent of the female, and also rape upon a female under the age of consent, there was no error in overruling a motion that the State, elect, but the charge of the court submitting both counts and instructing the jury that they might find defendant guilty of either or both counts, and so state in their verdict, and the jury finding a verdict on both counts and assessing the punishment at twenty years imprisonment in the penitentiary, fixing the amount of punishment at four times the minimum, the judgment must be reversed and the cause remanded. Following: Modica v. State, 251 S. W. Rep., 1049, and other cases.</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. —Unlawfully Carrying a Pistol.</p> <p>Wliere, upon trial of unlawfully carrying a pistol, the evidence raised the issue of innocent intention and want of knowledge of the presence of the pistol, and the court’s charge failed to mention the defensive theory that the pistol was placed in the car without the knowledge of the defendant and that his discovery of same was by accident, and that he is not guilty of carrying the same about his person, the judgment must be reversed and the cause remanded. Following: Miles v. State, 52 Texas Crim. Rep., 561, and other cases.</p> <p>2. —-Same—Evidence—Hearsay.</p> <p>Where the State was permitted to introduce testimony that in the absence of the appellant one of his brothers said that the pistol belonged to the appellant, the same was inadmissible and reversible error.</p>

<p>1. —Swindling—Insufficiency of Complaint and Information.</p> <p>Where, upon trial of swindling, the complaint and information failed to state an offense, either under subdivision 4 of article 1422 of Vernon’s P. C. or under the general Swindling Statute, the judgment must be reversed and the cause dismissed. Following: Speer v. State, 50 Texas Crim. Rep., 276, and other cases. Besides, the facts are insufficient to support a conviction.</p> <p>2. —Same—Definition of Offense — Suggestion by the Court.</p> <p>This prosecution should have been brought under the fourth subdivision Of Article 1422 of Vernon’s P. C., under proper pleading.</p>

<p>Burglary — Sufficiency of the Evidence.</p> <p>Where, upon trial of burglary the evidence is sufficient to support the conviction, the judgment, is affirmed, in the absence of bills of exception in the record.</p>

<p>1. —Vagrancy—Evidence—Hearsay—Reputation.</p> <p>Upon trial of vagrancy testimony of witnesses that from what they had heard they were of the opinion that the reputation of defendant’s home was that of a place where intoxicating liquor was sold, was inadmissible.</p> <p>2. —Same—Evidence—Reputation.</p> <p>Upon trial of vagrancy testimony of the deputy sheriff that appellant lived in Breckenridge, Texas, prior to September, 1922, and had the reputation of being a loafer and a bootlegger, was inadmissible.</p> <p>3. —Same—Evidence—Bill of Exceptions.</p> <p>Upon trial of vagrancy testimony of a conversation had by the State’s witness with appellant in which the latter stated that during the first week in April, 1923, he had sold intoxicating liquor, but that he had quit and did not intend selling any more, was inadmissible.</p> <p>4. —Same—Evidence—House of Prostitution.</p> <p>Where appellant was not charged with vagrancy predicated on his association with prostitutes, testimony as to the reputation of a certain bawdy house was inadmissible.</p>

<p>1. —Manslaughter—Bill of Exceptions — Question and Answer Form.</p> <p>Where the bill of exceptions was in question and answer form, it cannot be considered on appeal.</p> <p>2. —Same—Evidence—Rebuttal—Suspended Sentence.</p> <p>There was error in permitting testimony what appellant may have said to a Mrs. Rucker with regard to his intention to kill one Annie Taylor if she did not marry him, or that he killed a man in Mississippi, and the matter was not proper either for impeachment or as affecting suspended sentence.</p> <p>3. —Same—Other Witnesses — Bill of Exceptions.</p> <p>Where the same testimony had been given by another witness and was before the jury without objection, the matter complained of in the bill of exceptions, need not be considered.</p> <p>4. —Same—Charge of Court — Defense of Home.</p> <p>Where, upon trial of murder and a conviction of manslaughter, the evidence showed that Only a few minut.es before the shooting deceased threatened the life of appellant, and had gone away and was returning to appellant’s house and over a warning not to come in was proceeding to enter, the court should have submitted a charge as requested that appellant had the right to defend against an unlawful entry into his home. Following: Richardson v. State, 7 Texas Grim. App., 493, and other cases.</p>

<p>1, —Manufacturing Intoxicating Liquor — Sufficiency of the Evidence.</p> <p>Where, upon trial of unlawfully manufacturing intoxicating liquor, the evidence sustained the conviction, there is no reversible error.</p> <p>2. —Same—Charge of Court.</p> <p>No error appears in the court’s stating in paragraph one of his charge that it was unlawful for any person to directly or indirectly manufacture intoxicating liquor.</p> <p>3. —Same—Charge of Court.</p> <p>This court sees no reason why the court below should have given the requested charge to the effect that the jury could not convict the defendant for possessing liquor nor for having mash in his possession, etc.</p> <p>4. —Same—Requested Charge.</p> <p>Where it was apparent from an inspection of the court’s main charge that after the defendant’s requested instructions, as to the personal presence of defendant was presented, the court inserted it in the main charge as paragraph 2a, there is no reversible error.</p> <p>5. —Same—Suspended Sentence — Charge of Court.</p> <p>The court correctly refused the requested charge which in substance asked that the jury be told that in considering the suspended sentence they would not consider the fact that the accused had been convicted at a former term for possessing liquor, because of the fact that the Court of Criminal Appeals held in his case his possession of liquor was not an offense and reversed and dismissed the case.</p> <p>6. —Same—Rehearing.'</p> <p>While appellant is correct in his complaint as to the refusal of the three special charges mentioned as being inaccurate, yet in the opinion of the court, after passing upon these requested charges, there was no error in refusing them, and the motion for rehearing is overruled.</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. —Abstracting Funds from a Bank — Charge of Court.</p> <p>Where, upon trial of unlawfully abstracting funds from a bank, defendant complained of the court’s refusal of his two requested charges one of which was covered by the main charge, and the other was not the law of the case, there is no reversible error.</p> <p>2. —Same—Charge of Court — Variance—Proof—Indictment—Consent.</p> <p>Where, upon trial of unlawfully abstracting funds from a bank, defendant’s requested charge sought to have the jury instructed to acquit him upon the ground that there was a variance between the allegation and the proof, in that the indictment charged that the money was abstracted from the park Springs Bank without the consent of the directors of the bank, and that the proof showed that appellant was a director and there was no proof of want of his consent to such abstraction, held that the same is untenable, as the bank was a corporation, and the testimony showed that the board of directors thereof had given appellant no consent.</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 Honorable James R. Hamilton. Appeal from a conviction of rape upon a female under the age of consent; 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>

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