INDEX

Abandonment. See Self-Defense, 3.

Abandonment of Difficulty. See Self-Defense, 7.

Where, upon trial of murder, the evidence did not raise the issue of
self-defense, it was not required by the court to charge on the abandonment
of the difficulty. McDaniel v. State, 636.

Where the term of the statute fixes the completed act of abortion, that is
by the term "abortion" is meant that the life of a foetus or embryo shall be
destroyed in the woman's womb, the theory of the State that the removal of
a child's body from the mother's womb is a part of the abortion even if
the death of the child was brought about somehow somewhere else, and the
operation being performed in the county of the prosecution, that the venue
was in said county, is untenable under the evidence, which showed that if
any abortion was effected it was by a drug administered in another county
than that of the prosecution. Crossett v. State, 440.

Abduction. See Extradition.

When a foreign county surrenders the fugitive from justice under an
extradition treaty, he can be tried in the demanding country alone for the
offense named in the extradition proceedings, but when the fugitive is kid-
napped, or abducted, in a foreign country and brought to the United States
and there tried for an offense against its laws, the judgment of conviction
will not be disturbed. Following Ker v. U. S. 119, U. S. 421, L. Ed. Domin-
guez v. State, 92.

Absence of Defendant.

While during the taking of testimony the defendant absented himself
from the courtroom while a witness was testifying, and the court at once
stopped proceedings when discovering such absence, and upon return of
defendant the same evidence was reproduced in his presence, there was
no reversible error. Following Cason v. State, 52 Texas Crim. Rep., 224.
Sullivan v. State, 170.

Accidental Shooting.

Where there was no testimony tending to raise the issue that the prin
cipal of the defendant shot at the companion of the deceased, and that such
shots accidentally killed the deceased, there was no error in the court's
failure to submit a requested charge on this phase of the case. Espalin v.
State, 625.

Accomplice. See Corroboration; Intoxicating Liquors, 25; Robbery, 21.
1. Where the contempt proceeding against relator is a misdemeanor, and
it is evident from the testimony in the case that the chief witness against
the defendant was an accomplice and required corroboration, and the evi-
dence was insufficient to show such corroberation, the conviction for contempt
cannot be sustained. Ex Parte Kahn, 41.

(663)

Accomplice Continued.

2. Where, upon trial of receiving stolen property, the testimony of the al-
leged accomplice was sufficiently corroborated, there was no error in refusing
requested charges that it was not sufficiently corroborated. Kluting v. State,
44.

3. Where, upon trial of murder, the undisputed testimony showed that a
certain State's witness was one of the two men who came to the scene of
the shooting some two hours after it took place and assisted in carrying de-
ceased to his home, and had no connection with the shooting, there was no
error in refusing a requested charge to the effect that said witness was an
accomplice. Barnes v. State, 51.

4. The mere presence of a witness at the time of the commission of an
offense does not call for an instruction on the law of accomplice testimony,
or constitute such witness an accomplice. Following Smith v. State, 28 Texas
Crim. App., 309; and the fact that the witness tasted the liquor in question
and drank a portion of it would not make her an accomplice. Besides, the
testimony of the main State's witness was amply corroborated, and there
was no reversible error. Howard v. State, 164.

5. While the law does not require that corroboration of an accomplice be
sufficient of itself to show guilt, yet inconclusive or immaterial matter which
does not tend directly or immediately to connect or corroborate testimony
which does not fill this measure is not sufficient. Following Frankling v.
State, 53 Texas Crim. Rep., 388, and other cases, and the judgment must
be reversed and the cause remanded. Nunnally v. State, 233.

6. A female procured, etc., is not an accomplice, and in the absence of a
requested charge, that the female originated the mattter, there was no rever-
sible error. Following Denman v. State, 77 Texas Crim. Rep., 256. Carter
v. State, 248.

7. Where, upon trial of burglary, the evidence showed beyond question
corroborative evidence measuring up to the statutory rule announced in Ar-
ticle 801, Vernon's C. C. P., and went beyond a mere showing that an offense
had been committed, the failure to incorporate such paragraph in the charge
of the court would be but harmless error under Article 743, Vernon's C. C. P.,
although the better practice is to include such paragraph in the charge.
Forson v. State, 271.

8. Where, upon trial of theft of turkeys, the evidence sufficiently showed
that outside of anything the accomplice may have testified to, it was of an
inculpatory character and not only tended, but strongly tended to show de-
fendant's guilty connection with the taking of the turkeys, there was no re-
versible error. Faust v. State, 308.

9. Where, upon trial of robbery, the conviction depended upon the cor-
roboration of accomplice testimony, and no inculpatory facts were shown
which come to the aid of the accomplice in embracing the defendant in the
unlawful enterprise, the same was insufficient to sustain the conviction.
Boone v. State, 374.

10. Where upon trial of theft there was no corroboration of the ac-
complice's testimony, and no corroboration of the corpus delicti, the convic-
tion could not be sustained. McGlaster v. State, 387.

11. Where, upon trial of incest, exception was taken to the court's charge
because same did not instruct the jury that the prosecutrix was an accom-
plice, but it appeared from the record that this question was submitted to
the jury as one of fact, under a proper charge of the court, there was no
reversible error; and there was no error in refusing requested charges on
the same subject. Rodriguez v. State, 566.

12. Where the conviction depended chiefly upon the testimony of an ac-
complice, but defendant testified that he had no knowledge of any intent
on the part of his co-defendant, but drove to the place where the robbery was
committed at the direction of his companions, and that he was simply hired
as a service car driver, and requested the court to submit this issue to the
jury in a requested charge, which the court refused, same was reversible error,
following Duncan v. State, recently decided. Carreon v. State, 572.

13. Where the accomplice testified to a complete case, and the movements
of all the parties, both before and after the burglary, there was no error in

Accomplice-Continued.

permitting the State to introduce witnesses supporting him in many of the
details related by him. Watson v. State, 576.

14. Where the rejected evidence was harmless error as far as it concerned
the accomplice, and had no legitimate bearing on the proposition that the
other party concerned was an accomplice, there was no reversible error.
Newton v. State, 598.

15. Where the defendant was indicted as an accomplice, and the testi-
mony of his principal clearly showed his guilt, and this testimony was sub-
stantially corroborated, the conviction of murder as an accomplice is sus-
tained. Espalin v. State, 625.

An accused cannot speculate as to how long his victim may live who has
already had a moral wound inflicted upon him by another; when he inflicts
additional wounds that hasten his death, and there was no error in refusing
a requested charge on this phase of the case. Following Powell v. State,
13 Texas, Crim. App., 244, and other cases. Hays v. State, 355.

Adequate Cause. See Assault and Battery; Manslaughter.

Where, upon trial of murder, the court's charge was limited to an as-
sault and battery by the deceased, and the facts in evidence raised the issue
of other occurrences from which sudden passion might be inferred beside
the one blow struck by deceased at one of his assailants, a general charge
on manslaughter, including all the facts and circumstances, should have been
given. Monday v. State, 8.

Adultery.

1. Where, upon trial of adultery by living together and having carnal
intercourse, the evidence sustained the conviction not only by an extra-
judicial confession; but by corroboration of the same, a conviction was sus-
tained, and there was no reversible error, and one act of such intercourse
was sufficient to sustain the conviction. Cadle v. State, 464.

2. Where, upon trial of adultery by having habitual carnal intercourse
without living together, the evidence adduced by the State did not reach
that degree of certainty as required by law, and the guilt of defendant was
entirely dependent upon circumstances alone, the same was not sufficient to
sustain the conviction. Following Green v. State, 53 Texas Criminal. Rep.,
540, an other cases. George v. State, 494.

Advice of Counsel. See Attorney and Client.

Affidavit. See Contempt; Motion for New Trial; Separation of Jury, 1; State-
ment of Facts; Written Confession.

1. Where the issue made by the State based upon an affidavit attacking
the credibility and means of knowledge of defendant's compurgators in his
application for change of venue was in statutory form, the court did not err
in overruling defendant's demurrer thereto. Carlile v. State, 1.

2. Disqualification of the trial judge cannot be established by an ec
parte affidavit filed in this court; the remedy is to be sought in a forum
whose jurisdiction will enable it to determine the issues of fact. Adams v.
State, 65.

Agent. See Ownership.

Age of Consent. See Rape.

Age of Defendant. See Juvenile.

Where, upon appeal from a conviction of burglary, the record on appeal
showed that the evidence presented an issue of fact touching the age of ap-
pellant, and the solution of the issue by the trial court upon the conflicting
testimony is conclusive on appeal, there is no reversible error. Following
Mireles v. State, 83 Texas Crim. Rep., 608, and other cases. Huell v. State,
602.

Age of Female.

Where the indictment charged that the age of the alleged female was
under fifteen years of age, and the evidence showed without controversy that
said female was but eleven years of age at the time of the trial, there was
no reversible error in the court's charge that rape was the carnal knowledge
of a female under the age of eighteen years, etc. Distinguishing Young v.
State, 89 Texas Crim. Rep., 230. Mannon v. State, 512.

Age of Prosecutix. See Requested Charge, 11.

1. While the indictment alleged that the rape was committed upon a girl
under the age of fifteen, the facts without dispute showed her to be eleven
years of age at the time of the trial, and there was no reversible error in the
court's charge placing the age of consent at eighteen. Mannon v. State, 512.

2. Where the motion to quash the indictment and arrest of judgment
claimed that the prosecutrix being over 15 years of age, the indictment should
have alleged that she was of previous chaste character, held; that unchastity
is made a defense between fifteen and eighteen years, but it is not necessary
for the State to allege previous chastity. Moore v. State, 604.

Aggravated Assault. See Deadly Weapon; Information, 1; Intent to Rape.

1. Where, upon trial of assault to rape, defendant was convicted of an
aggravated assault, and the evidence showed that defendant used violence
upon the person of the alleged female, although it did not amount to an at-
tempt to commit rape, there was no error in refusing the requested charge
which would have been applicable in a case of assault with intent to rape,
and the conviction was sustained. Following Sheds. State, 39 Texas Crim.
Rep., 418, and other cases. Mooring v. State, 129.

2. Where appellant insisted on motion for rehearing that the court
should have charged upon aggrevated assault, and relied upon the case of
McCullough v. State, 47 S. W. Rep., 990, but the record showed that the facts
in that case were entirely different from the instant case, the same is not
applicable to the facts of the instant case, and the motion is overruled. Dis-
tinguishing McCullough v. State, 47 S. W. Rep., 990. Rettig v. State, 142.

3. Where, upon trial of aggravated assault, the court, in his charge to
the jury fell into the error of making the defendant's right of self-defense
depend upon an assault made upon him by the party injured of a character
which led defendant to believe that he was likely to suffer death or serious
bodily injury, the same was reversible error. Following Kingslow v. State,
66 Texas Crim. Rep., 430. Waller v. State, 257.

4. Where, upon trial of aggravated assault, by driving a motor vehicle
wilfully and with gross negligence and injuring another person thereby, the
court charged the jury verbally and then read two sections of the statute
which had no application to the facts of the case, over proper objections of
the defendant, and did not charge the law of gross negligence properly, the
same was reversible error, and no requested charge could have corrected the
error. Wright v. State, 435.

5. Where, upon trial of assault to murder and a conviction of aggravated
assault, the State's case made out an unprovoked wanton shooting into a
car occupied by several persons without any apparent excuse, the conviction
for aggravated assault is amply sustained. Salisbury v. State, 438.

6. Upon trial of aggravated assault, where the information alleged the
offense in two counts, one asserting serious bodily injury and the other the
use of a deadly weapon, and both counts were submitted and a general ver-
dict rendered, a complaint that the physician who attended the alleged in-

Aggravated Assault-Continued.

jured party was permitted over objections of defendant to state that a piece
of iron pipe, etc., is a deadly weapon, was not reversible error. Besides, the
verdict being general, might well be referred to the other count in the in-
formation, which the evidence amply supported. Svidlow v. State, 510.

7. Where, upon trial of assault with intent to rape and a conviction of
aggravated assault, the trial judge in submitting his charge on aggravated
assault apparently proceeded upon the theory that inasmuch as the prosecu-
trix being under eighteen years of age and therefore precluded by law from
giving her consent to carnal knowledge was also incapable of consenting to
indecent familiarity, the same was reversible error, as defendant's guilt of
aggravated assault would depend upon whether defendant's conduct was
without the consent of the prosecutrix. Following Hand v. State, 88 Texas
Crim. Rep., 431. Price v. State, 534.

8. Where, upon trial of aggravated assault, the evidence sustained the
conviction, there was no reversible error. Donohue v. State, 541.

9. Where, upon appeal from a conviction of assault to murder, it ap-
peared from the record that the appellant excepted to the charge of the court
below for his failure to submit the issue of aggravated assault, and the record
also showed that the issue was raised by the evidence, the same is reversible
error. Moody v. State, 529.

10. Where appellant in his motion for rehearing contended that even in
the absence of an exception to the charge of the court for failure to submit
the law of aggravated assault, this court should have held such failure to be
fundamental error and should have ordered a reversal thereon, held; under
the present practice and statute the failure of the court to submit the law of
an offense supposed to be included in the one charged in the indictment can-
not be held by this court to be fundamental, in the absence of proper ob-
jections and exceptions; besides, the jury did not give the appellant the
lowest penalty, and it would not be likely that the court's failure to charge
on aggravated assault would have injured the appellant. Wright v. State,
555.

Alibi.

1. Where, upon trial for robbery, defendant in his application for con-
tinuance gave no details as to the hour of day at which he was at the place
alleged in his application, and it is only a conclusion upon which he re-
lies that he was there when the offense was committed, the same was prop-
erly overruled. McDuff v. State, 557.

2. Where the court's main charge sufficiently instructed the jury on the
law of alibi, there was no reversible error in refusing a requested charge
thereon. Moore v. State, 604.

Allusion to Defendant's Failure to Testify. See Rule Stated, 10.

Where, upon trial for robbery, counsel for the State, in his argument
stated that i he were accused of an offense of robbery and had been tried
once and was on trial again for the offense he would feel he should give the
jury the benefit of all his movements on the day of the robbery and that
they (meaning the defendant and his counsel) hadn't done it, this was not
reversible error, under Article 790, C. C. P. Following Wilkerson v. State,
57 S. W. Rep. 961. Boone v. State, 374.

Amendment.

The Act of the Second Called Session of the Thirty-seventh Legislature,
page 233, amending the so-called “Dean Law," provides that the possession
of intoxicating liquor is not an offense unless for the purpose of sale. Blake
v. State, 280.

Apparent Danger. See Self Defense.

Where a certain paragraph of the court's charge was assailed as a re-
striction upon the right of the appellant, in failing to make available the law