Bill of Exceptions-Continued.
connected with that charged in the indictment, the exception did not reach
the matter objected to, inasmuch as part of the testimony was admissible, even
if the other was not, and the exception did not point out the particular evi-
dence objected to. Rundell v. State, 410.
11. Where the bill of exceptions did not show that the witness saw either
one of said parties on the day of the homicide, we can only infer therefrom
that he saw neither of them, when he said that he did not see the accused
with her husband on that day. Cook v. State, 424.
12. Where the court's qualification to the bill of exceptions stated that
the testimony objected to was elicited from the witness by defendant's
counsel, this would destroy the effect of the bill of exceptions that the answer
was not in response to the question. Shaddix v. State, 431.
13. Where the bill of exceptions consisted wholly of questions and answers
the same will not be considered on appeal. Rylee v. State, 482.
14. Where the bill of exceptions was not filed within time which was
after the expiration of the ninety days' time granted, the same cannot be con-
sidered on appeal. Darnell v. State, 492.
15. Where there was no order for extending the time for filing bill of ex-
ceptions, and the bill of exceptions was not filed in time, the motion by the
State to strike out will be sustained. Whitley v. State, 503.
16. Where the bill of exceptions complains that certain witness were al-
lowed to state in their testimony that they would not believe the prosecutrix,
the alleged injured party on oath, the same is reversible error. The rule is
that the witness may not be asked if he would or would not believe on oath
the party inquired about, although he may be asked if from general reputation
said party is worthy of belief under oath. Moody v. State, 529.
17. When the attack in the bill of exceptions is against the whole of the
testimony, the trial court is not in error in overruling the objection where
he would have been authorized to exclude only a part. Following Tubb v.
State, 55 Texas Crim. Rep., 623; besides, some of the testimony objected to
would have been admissible to show that the defendant was not on the prem-
ises to see his children but to interfere with the management of the prop-
erty. Solosky v. State, 537.
18. Where defendant presented to the trial court his bill of exceptions to
the argument of state's counsel and the trial court made a written statement
thereon that no objection was made to the argument of prosecuting attorney
therein complained of, when such argument was made to the jury and that
no exception was taken to said argument, and that the same was not allowed
or approved as a bill of exceptions, this court cannot consider what purports
to be the bill of exceptions accompanied by affidavit to the facts therein
stated, and not part of the record. Donohue v. State, 541.
19. Where a bill of exceptions is presented to the trial court which, if
merely incorrect, the proper course is indicated by Article 2065, Vernon's
Civil Statutes, wherein the court is directed to suggest proper corrections,
which, if agreed to, the court may make and the bill thus corrected shall be
approved and filed. Id.
20. In the absence of a bill of exceptions the admission of evidence can-
not be considered on appeal, and the motion for rehearing must be overruled.
Collins v. State, 550.
21. Where the bill of exceptions to the question of juvenility was in
question and answer form, the same could not be considered on appeal. How-
ever, if the court considers the fragmentary part of the bill not subject to the
objection pointed out, the evidence does not sustain the contention that the
officers of the court purposely continued the case until after defendant be-
came seventeen years of age in order to deprive him of his rights under the
juvenile law. Watson v. State, 576.
22. Where the bills of exception were not filed in time, but even if con-
sidered present no error, the judgment of conviction must be affirmed. Vickers
v. State, 609.
23. Where the bill did not reveal the error, for the reason that concededly
a part of the confession testified to by the witness was admissible because
from it the finding of the stolen property resulted, and the objection was
Bill of Exceptions-Continued.
addressed to the whole and not a part of the testimony, the matter cannot be
reviewed; besides, the bill when considered shows no reversible error. Clark
v. State, 613.
24. Where the bill of exceptions did not show that defendant was not
present at the time of the alleged conversation, there was no error in admitting
the same in evidence. Crispi v. State, 621.
25. Where the bill of exceptions did not point out any part of the con-
fession of the principal and make specific objections thereto, but the objection
was as to the whole for the reason stated, there was no reversible error.
Espalin v. State, 625.
Bill of Lading. See Manual Possession.
Where the trial judge certified that the evidence with reference to the
introduction of clothing worn by deceased at the time of the homicide was
substantially the same as upon the former trial, to show the attitude of the
parties, etc., there was not reversible error. Briscoe v. State, 650.
Bottle Containing Strychnine.
Where, upon motion for rehearing, appellant again complained of the ad-
mission in evidence of a bottle of strychnine similar to the one in which
was strychnine, purchased by him a very short time prior to the death of the
deceased; held, that while the bottle itself was not that which killed, it was
the container of the deadly agent and was therefore admissible in evidence.
Following Jackson v. State, 48 Texas Crim. Rep., 650, and other cases.
v. State, 424.
Burden of Proof. See Extradition, 2.
1. The burden is not upon the accused to show that the prejudice against
him or against his case is such as to render a fair trial impossible, but if
there exists a prejudice such as rendered it improbable that a fair and im-
partial trial should be had, he is entitled to have his application granted.
Following Randle v. State, 34 Texas Crim. Rep., 59, and other cases; and
it is not necessary that such prejudice grew out of the offense on trial but
out of a false accusation relating to his former conduct. Following Barnes
v. State, 34 Texas Crim. Rep., 59 and other cases. Cox v. State, 106.
2. Where, upon trial of violation of the so-called Dean Act, the court in-
structed the jury that the State is not required to prove in the first instance
that the manufacture of vinous liquor capable of producing intoxicating, or
the possession of any equipment for making such vinous liquor, or whisky,
was not for either medical, mechanical, scientific, or sacramental purposes;
but when the evidence showed that the defendant manufactured such liquor,
or did possess equipment for making such vinous liquor, or whisky, then
the burden is on the defendant to show that such manufacture, or possession,
was for either mechanical, medical, scientific, or sacramental purposes,
there was no reversible error. Following State v. Duke, 42 Texas, 455, and
other cases. Robert v. State, 133.
3. Where, upon trial of rape on a female alleged to have been mentally
diseased, etc., while the court's main charge was probably not reversible
error, yet in view of another trial, the special charge requested by the de-
fendant, stating the issue more clearly as to prosecutrix's mental condition
than the language employed by the main charge, which was objected to
because it placed the burden of proof on the defendant, should be given.
Bryan v. State, 175.
4. Upon app from a habeas corpus proceeding denying bail in a capital
case, to wit, murder, the evidence must show malice, and the burden rests
upon the State to produce evidence of a capital offense, and this burden is
not discharged by proof of a sudden killing by shooting upon an unexpected
meeting with no explanation of the motive. Following Farrer v. State, 42
Texas Crim. Rep., 271, and other cases; besides, the evidence showed self-
Burden of Proof-Continued.
defense, communicated threats, etc., and bail is granted. Ex Parte Harris,
5. Upon trial of the unlawful possession of intoxicating liquors, it is con-
templated by the statute that to authorize a conviction there should be
proof that the accused had actual, personal care, control and management of
the intoxicating liquor, and where in the instant case, in which the evidence
was wholly circumstantial, this requirement of the statute was not fulfilled,
the verdict of guilty was unwarranted; particularly so in view of the amend-
ment of the statute upon which the conviction was founded, where the pos-
session can only become unlawful if the intoxicating liquor was held for the
purpose of sale, and the burden of proof is on the State. King v. State, 289.
6. Where the indictment in extradition proceedings charged that the al-
leged fugitive from justice obtained nine liberty bonds of the aggregate
value of $750, fraudulently from another in the State of Kentucky, by false
representations, his personal testimony that he did not receive said bonds
fraudulently, and that when he received them he was in the State of Ohio,
will not suffice to discharge him from the extradition warrant, and the
burden is upon him to show conclusively that he was not in the State of
Kentucky at the time he received them, and his own evidence unsupported
by other testimony will not entitle him to a discharge under an extradition
warrant. Ex Parte Hatfield, 293.
7. Where, upon trial of robbery, the defendant pleaded insanity, and the
court instructed upon this issue, under the rule of approved precedent in such
cases, there was no error in refusing a request charged on the same state
of facts. Following Hurst v. State, 40 Texas Crim. Rep., 378, and other
cases. Gardner v. State, 339.
8. Defendant's special charge, that the burden was on the State to show
that the liquor in question was not manufactured for one of the purposes
excepted by Statute, was properly refused. Following Robert v. State, 90
Texas Crim. Rep., 133, recently decided. Shaddix v. State, 431.
Burglary. See Accomplice, 7; Charge of Court, 4; Harmless Error, 6.
1. Possession of property recently stolen without satisfactory explana-
tion is generally sufficient to justify a conviction for theft, or the burglary
of premises from which the property is taken, and the matter of the credibil-
ity of witnesses, etc., is a question of fact for the jury, and there is no
reversible error in the instant case. Following Nightengale v. State, 50 Texas
Crim. Rep., and other cases. Renois v. State, 202.
2. Where it was alleged that defendant's intent in firing into the house
was to commit a felony, as required under article 1303, Vernon's P. C., but
the court charged the jury to find defendant guilty if he discharged a firearm
into a house with intent to injure the occupant, the same was reversible error,
as Article 1307, Vernon's P. C., relates solely to the question of what is
meant by "entry," and no intention therein appears to create a new defini-
tion of burglary. Following Miller v. State, 81 Texas Crim. Rep., 238, and
other cases. Peoples v. State, 236.
3. Where, upon trial of burglary, the evidence was sufficient to sustain
the conviction, there was no reversible error on that ground. Fountain v.
State, 474.
4. Where, upon appeal from a conviction of burglary, the appellant com-
plained of the court's failure to charge on the law of day time burglary but
the record showed that both the appellant and the witnesses for the State
declared that the transaction took place at night, there was no error in the
court's failure to charge on daytime burglary. Williams v. State, 487.
5. Where, upon trial of burglary, the evidence sustained the conviction,
and there being no exception to the indictment or the charge of the court,
both of which seem in conformity with the law, there was no reversible error
and the judgment must be affirmed. Darnell v. State, 492.
6. Where, upon trial of burglary, the corroboration of the accomplice was
sufficient to meet the requirements of the law, and the evidence was sufficient
to sustain the conviction, there was no reversible error. Watson v. State, 576.
In such a case if the court proceeds to file what he considers a correct
bill of exceptions, and appellant is dissatisfied therewith, he may proceed to
have prepared and file what is denominated a bystander's bill in accordance
with the provisions of Article 2067 of said civil statutes. Donohue v. State,
Capital Offense. See Robbery, 6.
Carrying Pistol. See Own Premises.
1. Where, upon trial of unlawfully carrying a pistol, the evidence showed
that defendant, while carrying a pistol, traveled from Taylor to Austin,
Texas, about 40 miles apart, and that it took about two hours each way
to make the trip, there was no reversible error in the court's holding that
defendant was not a traveler under the facts; and the evidence being other-
wise sufficient the conviction is sustained. George v. State, 179.
2. Where the decree of divorce gave the wife the complete and exclusive
control of the premises and the rents and revenues therefrom for supporting
her minor children, etc., and only gave the husband, the defendant, the right
to see and visit such children but not to interfere with the management of
them or the property, he could not claim the same as his own premises
under the act of lawfully carrying a pistol. Solosky v. State, 537.
Cases Distinguished. See Cases Cited.
Alexander v. State, 63 Texas Crim. Rep., 103
2. Brown v. State, 87 Texas Crim. Rep., 261
Davis v. State, 68 Texas Crim. Rep., 259
4. Davis v. State, 81 Texas Crim. Rep., 450
5. Denton v. State, 76 Texas Crim. Rep., 58
Ex Parte Ballard, 87 Texas Crim. Rep., 480
Gibson v. State, 85 Texas Crim. Rep., 416
Grant v. Haas, 75 S. W. Rep., 245
Russell v. State, 88 Texas Crim. Rep., 512
16. Seals v. State, 35 Texas Crim. Rep., 138
17. Slack v. State, 67 Texas, Crim. Rep., 460
18. Sorrell v. State, 74 Texas Crim. Rep., 100
19. Spannell v. State, 83 Texas Crim. Rep., 418
20. Spriggins v. State, 42 Texas Crim. Rep., 341
21. Strange v. State, 88 Texas Crim. Rep., 280
22. Tolston v. State, 88 Texas Crim. Rep., 269
23. Whitfill v. State, 75 Texas Crim. Rep., 1
24. Wisdom v. State, 45 Texas Crim. Rep., 315
25. Woolen v. State, 68 Texas Crim. Rep., 189
27. Young v. State, 89 Texas Crim. Rep., 230
Cases Followed. See Cases Cited.
Arbetter v. State, 79 Texas Crim. Rep., 487
Bader v. State, 57 Texas Crim. Rep., 294
Bains v. State, 42 Texas Crim. Rep., 510
4. Baker v. State, 7 Texas Crim. App., 613
5. Barnes v. State, 34 Texas Crim. Rep., 59
6. Barnes v. State, 53 Texas Crim. Rep., 629
7. Barrios v. State, 83 Texas Crim. Rep., 548
8. Basquez v. State, 56 Texas Crim. Rep., 330
Bass v. State, 59 Texas Crim. Rep., 191
Batchelor v. State, 41 Texas Crim. Rep., 501
Cases followed-Continued.
Battles v. State, 63 Texas Crim. Rep., 147
Bearden v. State, 44 Texas Crim. Rep., 583
Bell v. State, 77 Texas Crim. Rep., 126
Bell v. State, 32 Texas Crim. Rep., 436
Bennett v. State, 80 Texas Crim. Rep., 662
Berliner v. State, 6 Texas Crim. App., 181
17. Berry v. State, 58 Texas Crim. Rep., 291
18. Bigliben v. State, 68 Texas Crim. Rep., 530
Blandford v. State, 10 Texas Crim. App., 640
Bluman v. State, 33 Texas Crim. Rep., 43
Bowen v. State, 3 Texas Crim. App., 318
Bradshaw v. State, 82 Texas Crim. Rep., 251
23. Brady v. State, 65 Texas Crim. Rep., 521
Brown v. State, 73 Texas Crim. Rep., 574
25. Brumley v. State, 21 Texas Crim. App., 238
26. Burow v. State, 85 Texas Crim. Rep., 133
27. Burton v. State, 51 Texas Crim. Rep., 201
28. Busey v. State, 87 Texas Crim. Rep., 23
29. Buzan v. State, 59 Texas Crim. Rep., 213
Cabral v. State, 57 Texas Crim. Rep., 304
Cabrera v. State, 56 Texas Crim. Rep., 149
32. Campbell v. Warner, 24 S. W. Rep., 703
33. Campbell v. State, 57 Texas Crim. Rep., 301
34. Carr v. State, 89 Texas Crim. Rep., 245
35. Cason v. State, 52 Texas Crim. Rep., 224
36. Cheatham v. State, 57 Texas Crim. Rep., 442
37. Childs v. State, 81 Texas Crim. Rep., 81
38. Clark v. State, 56 Texas Crim. Rep., 295
Clark v. State, 87 Texas Crim. Rep., 107
Clayton v. State, 83 Texas Crim. Rep., 57
Clifton v. State, 70 Texas Crim. Rep., 546
Cole v. State, 73 Texas Crim. Rep., 457
Colter v. State, 37 Texas Crim. Rep., 284
Coney v. State, 2 Texas Crim. App., 62
Cowan v. State, 41 Texas Crim. Rep., 617
Cox v. State, 8 Texas Crim. App., 254
Cox v. State, 90 Texas Crim. Rep., 256
Crow v. State, 89 Texas Crim. Rep., 142
49. Davis v. State, 2 Texas Crim. App., 162
50. Dawson v. State, 32 Texas Crim. Rep., 535
Denton v. State, 42 Texas Crini. Rep., 427
Doans v. State, 37 S. W. Rep., 751
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
53. Doggett v. State, 86 Texas Crim. Rep., 98
Doucette v. State, 45 S. W. Rep., 800
Dow v. State, 31 Texas Crim. Rep., 287
56. Dubose v. State, 10 Texas Crim. App., 230
57. Duke v. State, 35 Texas Crim. Rep., 283
58. Eads v. State, 76 Texas Crim. Rep., 647
59. Early v. State, 50 Texas Crim. Rep., 34-
30. English v. State, 34 Texas Crim. App., 190
61. English v. State, 85 Texas Crim. Rep., 450
62. Ex Parte Drane, 80 Texas Crim. Rep., 543
63. Ex Parte Erwin, 7 Texas Crim. App., 288
64. Ex Parte Foster, 44 Texas Crim. Rep., 425
65. Ex Parte Gilmore, 88 Texas Crim. Rep., 529
66. Ex Parte Grilli, 179 New York Supp.,
67. Ex Parte McKay, 82 Texas Crim. Rep., 21
68. Ex Parte Reynolds, 35 Texas Crim. Rep., 437
69. Ex Parte Smith, 23 Texas Crim. App., 100
Farrer v. State, 42 Texas, 65
Faulkner v. State, 43 Texas Crim. Rep., 311
Feeney v. State, 58 Texas Crim. Rep., 152
73. Ferguson v. State, 83 Texas Crim. Rep., 273
134, 338, 612
254
263, 288
201
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