Circumstantial Evidence-Continued.
error in the court's refusal to charge on circumstantial evidence. Following
Roberts v. State, 44 Texas Crim Rep., 267, and other cases. Rundell v. State, 410.
6. Tested by the rules of circumstantial evidence, the testimony in the in-
stant case does not prove the defendant's explanation and denial untrue, nor
does it prove that he made intoxicating liquors, and the judgment must be
reversed and the cause remanded. Hardaway v. State, 485.
7. Upon trial of theft there was no error in admitting testimony that as
defendant fled he was seen to throw away an object and that it was about
the size of a brick-bat and brown in color, and was about the size and
color of the alleged stolen purse. Following Williams v. State, 60 Texas
Crim. Rep., 53, and other cases. Williams v. State, 619.
Where, upon trial of murder, the defendant claimed that the deceased
was shot accidentally in a struggle between him and the deceased to secure
a pistol, and there was testimony by the State that deceased was shot in
the back, there was no error in permitting the State to show that the apron
worn by deceased had powder burns upon it, at a point which, if on the body
of the deceased, would be about the left shoulder, etc.; defendant contending
that deceased was not shot in the back. Smith v. State, 24.
Co-Defendant. See Evidence, 9.
Coffee Grounds. See Mingling Poison.
Collateral Attack. See Jury Commissioners.
1. The rule is re-affirmed that a predicate cannot be laid for contradicting
a witness on a collateral matter. Following Rice v. State, 51 Texas Crim.
Rep., 255. Bryan v. State, 175.
2. To make the act of the grand jury in finding the indictment amenable
to a collateral attack; by writ of habeas corpus, the organization of the
grand Jury must have been void and not voidable merely. Following Ex
parte McKay, 82 Texas Crim. Rep., 221. Ex Parte Clemmins, 261.
Comity of Nations. See Fugitive from Justice, 1.
Where, upon trial of burglary, the indictment charged the occupancy and
control of the alleged burglarized premises in the wife, and the proof showed
that the property was community property occupied by the wife, her hus
band, and their family, and that the husband was at home on the date of
the alleged burglary, the court should have submitted the requested charge
that an acquittal must follow because of a variance between the allegation
and the proof. Following Merriweather v. State, 33 Texas, 790, and other
cases. Peoples v. State, 236.
1. Where, many of the questions raised on appeal in the instant record are
discussed and disposed of in the companion ease, they need not again be
considered. Gunter v. State, 147.
2. Legal questions which are raised in companion cases and decided ad-
versely to appellant need not be again considered. Thompson v.
Competency of Witness.
Where the State's witness was twelve years
voir dire as to the obligation of his oath as a
discretion of the court to permit him to testify.
Complaint. See Filing; Jurat; Variance.
Compurgators. See Change of Venue.
of age, and testified on his
witness, it was within the
Rodriguez v. State, 566.
See opinions of Davidson, Presiding Judge, and Morrow, Judge, concur-
ring in main opinion. Rundell v. State, 410.
Codification and Revision of Statutes.
It may be conceded that there are instances in which repealed statutes
having been re-enacted in revision have been held inoperative, upon the theory
that their re-enactment was inadvertent; but this rule does not apply to Ar-
ticle 572, supra. Neither can it be held that this Article was repealed by im-
plication by the enactment of Article 559, supra. Following Simons v. State,
supra. Francis v. State, 67.
Conduct of Defendant. See Verbal Motion.
Conduct of District Attorney.
Where, during the cross-examination of defendant's witness, who was a
character witness, the district attorney on cross-examination remarked that
the State wanted to show that defendant was not virtuous, and it did not
appear from the record whether the defendant's reputation had been placed
in issue, there was no reversible error. Jetty v. State, 346.
On trial of murder, there was no error in permitting the State's witness
to testify that he had paid the funeral and burial expenses of deceased, and
after cross-examination of defendant, showing that the witness, who was
brother of deceased, got money from the Government after his brother had
died, there was no error on re-direct examination to show that he applied
this money to said burial expenses. Distinguishing Lewis v. State, 48 Texas
Crim. Rep., 149, and other cases. Cook v. State, 424.
Where it was made to appear by the court's explanation attached to ap-
pellant's bill of exception that the clerk, in preparing copy of said indict-
ment wrote out the words "One thousand nine hundred and twenty-one,”’
and then marked out the word "one," there was no error in overruling the
motion to quash the service of the copy of the indictment served upon the
defendant. Johnson v. State, 229.
Where, upon the question of suspended sentence, the State introduced a
copy of the judgment of conviction from the Federal Court, over defendant's
objection, there was no reversible error inasmuch as defendant had already
admitted that he was so convicted of an offense in the Federal Court; and
the court limiting said questions to that of suspended sentence, there was no
reversible error. Mason v. State, 560.
Confessions. See Corpus Delicti, 1; Embezzlement; Plea of Guilty.
1. Where, independent of appellant's written confession, the facts dis-
closed that the property in question was found in the possession of the
defendant, recently thereafter, and pointed to the guilty knowledge of de-
fendant, and under his verbal confession, stating where the property could be
found, the same was found by the officers at the place indicated, the convie-
tion was sustained, regardless of the written confession in evidence, and
regardless of the fact that the officer told him that it would be better to
disclose the fact, following Jones v. State, 50 Texas Crim. Rep., 330. Pierce
v. State, 302.
2. Where defendant, at the time he made the admission to the officer, was
aware of the intention of the sheriff to arrest him, or regarded himself as in
custody of under restraint, was not disclosed, the matter should have been
submitted to the jury, although there was no warrant to exclude the testi-
mony. Gardner v. State, 339.
3. Where appellant complained of the exclusion of the confession of
Jordan Israel, his co-defendant, to the effect that he and another killed the
deceased, and that appellant had nothing to do with it, the same was not
admissible in evidence. Following Bowen v. State, 3 Texas Crim. App., 318,
and other cases. Sanchez v. State, 518.
4. Where the defendant's confessions led to the discovery of ine alleged
stolen property, no warning was necessary. Following Torrence v. State,
85 Texas Crim. Rep., 310, and other cases. Clark v. State, 613.
5. The weight of authority seems in favor of admitting the confessions of
the principal where an accomplice is on trial, it being necessary to show the
guilt of the principal, and all evidence is admissible whose legitimate tendency
is to show such guilt. Following Simmons v. State, 10 Texas Crim. App., 131,
and other cases, and such confessions are not limited to a narration of the
bare facts but includes such statements as to show malice, deliberation, etc.,
and where the court properly limited the charge to the guilt of the principal,
there was no reversible error. Espalin v. State, 625.
Conspiracy. See Murder, 7; Principals; Receiving Stolen Property, 2; Res
Gestae, 4.
1. A conspiracy may be proved by circumstantial evidence, and the intent
to kill, etc., may be shown by defendant's conduct at the time of the homi-
cide. Following Cox v. State, 8 Texas Crim. App., 254. Hays v. State, 192.
2. Where appellant insisted in his motion for rehearing that his exception
to the charge of the court for his failure to submit, the theory of self-
defense as against a knife attack on the part of the deceased, but it appeared
from the record that the court below gave a more favorable charge on de-
fendant's right of defense against an attack by the deceased with the pistol
than defendant was entitled to (the facts showing a conspiracy) there
was no reversible eror. Hays v. State, 355.
3. Where, upon trial of murder, the evidence raised the issues of the law
of principals, conspiracy and of provoking the difficulty, the court correctly
submitted charges thereon. Id.
4. Where there was no evidence which raised the issue as to the presence
of a certain State's witness at the time the offense was committed, there
was no error in the court's failure to charge the jury to acquit the defendant
if said witness committed the offense. Following Dubose v. State, 10 Texas
Crim. App., 230, and other cases. Boone v. State, 374.
Constitutional Law. See Grand Jury; Local Option; Motor Vehicle; Speedy
Trial; Title of Act.
1. It was not necessary to allege how or in what manner defendant held
or obtained any interest in said house, etc., and the unconstitutionality of
the law having been passed on adversely to defendant's contention, there was
no error in overruling the motion to quash. Sanchez v. State, 156.
2. The right or duty to serve on grand juries cannot be confounded with
the right to vote, and this court cannot with any fair construction of lan-
guage say that the provisions in our Constitution and laws that grand juries
shall be composed of twelve men means less than the plain words import, and
the judgment must therefore be remanded and the cause dismissed. Harper
v. State, 252.
3. If the date of the offense was that charged and shown by the testimony
in the present record, the prosecution should have been under the provisions
of the so-called Dean Act, effective October 21, 1919, and there being a
saving clause therein, a judgment of conviction under the local option law,
as it formerly stood is reversed and the cause is remanded. Cone v. State, 508.
Contempt.
In contempt cases of this kind, under the authorities in this case, it is
not necessary that the presentation for contempt be supported by affidavit,
but that same may be made by the prosecuting attorney in his official capaci-
ty. Following Ex Parte Foster, 44 Texas Crim. Rep., 425, and other cases.
Ex Parte Kalin, 41,
Continuance. See Motion for New Trial; Practice on Appeal.
1. Where the record on appeal showed that no process had been issued
for the alleged absent witness, and that the application for continuance was
not in proper form to authorize the court to act upon it, and moreover the
State's counsel offered to admit the alleged absent testimony, to be true
and go to the jury, there was no error in overruling the motion for con-
tinuance. Walker v. State, 56.
2. The truth or merit of any application for continuance is primarily ad-
dressed to the trial court, and unless it appears that this discretion has been
abused, there is no ground for reversal, and in the instant case, there was
no reversible error in the conclusions of the trial court that there was a want
of diligence; that a postponement would not likely procure the testimony of
the absent witness, which was overwhelmingly contradictory of the evidence in
the case, and would justify the court that the witness would not likely
testify as alleged. Fridge v. State, 75.
3. Upon trial of mingling poison with food with intent to injure,
defendant claimed a continuance on account of the absence of two witnesses as
to defendant's mental incapacity to make an extrajudicial confession, but the
record showed that no such mental disorder existed at the time of such
confession, there was no error in overruling the motion for continuance.
Following Wooten v. State, 51 Texas Crim. Rep., 428, and other cases. Harkey
v. State, 212.
4. Where defendant's application left the question uncertain as to what
witness was wanted in obedience to a subpoena which was issued for the ab-
sent witness, there was no error in overruling the same. Carter v. State, 248.
5. Where defendant filed a motion to withdraw his announcement and con-
tinue the case on account of the condition of one of his witnesses whom
he averred was a drug addict, but the record showed that the case did not
go to the jury until three days thereafter, and there was no showing that the
witness was still incapacitated to testify, the application was properly over-
ruled. Following Sweeney v. State, 59 Texas Crim. Rep., 373. Jetty v.
State, 346.
6. Where it appeared from record on appeal that the alleged absent wit-
ness would not likely have testified to the facts claimed in the application
for continuance, or if so, that it would not probably have been true, and
besides the application showed a want of diligence, there was no error in
overruling same. Hays v. State, 355.
7. Where, upon trial of murder, defendant's application for continuance
showed that the absent testimony would be cumulative, and some of it hear-
say, and besides the diligence was questionable, there was no error in over-
ruling the application. Ott v. State, 403.
8. Where appellant complained of the court's action in overruling his ap-
plication for continuance, but the motion for new trial showed that the al-
leged absent witness would not give the testimony as alleged in the applica-
tion for continuance, there was no error in the court's overruling the motion
for new trial. McDuff v. State, 557.
9. Where, upon trial of murder the application for continuance showed a
want of diligence, there was no error in overruling same. Mason v. State, 560.
10. Where the application for continuance showed a want of diligence, and
the absent testimony was of cumulative nature, there was no reversible
error. Crispi v. State, 621.
1. Where the bill of exceptions, as qualified, showed that the testimony
objected to by defendant was admitted for the purpose of impeaching his
brother's testimony, who swore that a state's witness had refused to accept
an apology from the defendant, and, as a circumstance, to prove that said
brother did not tell defendant that said State's witness had refused to accept
defendant's apology, there was no error. Following Proctor v. State, 54
Texas Crim. Rep., 259, and other cases. Smith. v. State, 24.
2. Where, upon trial of rape, defendant introduced a witness who testified
that defendant's reputation with white people was good, and that his conduct
was such as to merit same, there was no error on cross-examination to ask
Contradicting Witnesses-Continued.
said witness if he had not told a certain officer that the hands with whom
defendant associated were always teasing defendant about chasing white
women, and to which he answered in the negative, and the State then intro-
duced the witness who testified that defendant's witness did so state; the
alleged rape being upon a white woman, defendant being a negro. Grace v.
State, 329.
Where, upon trial of murder the defendant objected to certain testimony
brought out on cross-examination, but the record on appeal showed that it
was a part of the same conversation which had been testified to by appellant
on his direct examination, and shed light on the action of the parties at the
time and immediately preceding the homicide, there was no error in its ad-
mission. Mason v. State, 560.
Conversation Between Third Parties.
Where, upon trial of aggravated assault, the defendant objected to cer-
tain testimony with reference to a conversation between the prosecutrix and
the State's witness, in defendant's absence, the objection should have been
sustained. Such testimony was not admissible and was injurious to the rights
of defendant. Crispi v. State, 621.
Converse Proposition. See Provoking Difficulty, 6.
1. Where the requested charges offered, ander the subject of manslaugh-
ter, were but a repetition of matters covered by the main charge, and not
adapted to supply any defect in the charge upon that subject due to an
inadequate submission of the converse of the proposition, therein contained,
they were correctly refused, and the same may be said on the subject of
principals. Hays v. State, 192.
2. On trial of murder the court should properly have submitted in his
charge on the converse proposition of provoking the difficulty a charge which
would obviate the objection that it was on the weight of the evidence.
Lewellen v. State, 588.
Where, upon trial of burglary, the conviction depended largely upon the
testimony of an accomplice, and when the State offered his testimony the
defendant introduced judgments of conviction against him, and the State, to
show his competency as a witness, introduced a pardon from the Governor,
to which defendant objected because the pardon failed to show that it covered
a certain conviction in another county, and that when the witness was per-
mitted to swear that he was convicted only one time in said county, stating
the date, and it was manifest that this was the conviction for which he had
been pardoned there was no error. Distinguishing Miller v. State, 46 Texas
Crim. Rep., 59, and other cases. Watson v. State, 576.
Cooling Time. See Charge of Court, 11.
Where, in connection with the charge on manslaughter, the court also
instructed the jury that if any prior assault upon the defendant Ly the de-
ceased occurred a sufficient length of time before the killing for the mind
of a person of ordinary temper to become capable of cool reflection such
assault alone would not constitute adequate cause, there was no error under
the facts of the instant case. Following Mackey v. State, 13 Texas Crim.
App., 363, and other cases. McDaniel v. State, 636.
Corpus Delicti. See Extra-Judicial Confessions.
1. Where, upon trial of mingling poison with food, the corpus delicti was
established, by proof, independent of defendant's confession, which was also
in evidence, this satisfied the law demanding proof of the corpus delicti
Following Gallegos v. State, 49 Texas Crim. Rep., 115, and other cases. Harkey
v. State, 212.
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