Corpus Delicti-Continued.

2. Where the offense is proved by accomplices, the conviction cannot be
sustained unless their testimony of the Corpus delicti is corroborated, and there
is other testimony tending to connect the defendant with the commission of
the offense. Following Slaughter v. State, 86 Texas Crim. Rep., 527, and other
cases, and where the evidence is circumstantial, and the identity of the de-
fendant is left in doubt, the conviction cannot be sustained. Townsend v.
State, 552.

Corroboration. See Accomplice; Burden of Proof, 6; Requested Charge, 9.

1. When there is no question but that the record in a given case presents
ample corroboration of the accomplice testimony, or when it does not ap-
pear that the conviction rests upon the uncorroborated testimony of accom-
plices, the failure of the trial court to submit that issue would not be held
reversible error by this court in the absence of an exception; and where,
in the instant case, the testimony was sufficiently corroborated and was
otherwise sustained by the evidence, there was no reversible error. Howard v.
State, 164.

2. While the rule that the extra-judicial confession of one accused of
crime to the fact that he committed the act charged is insufficient of itself to
justify conviction, yet the same may be corroborated, and the evidence will
then be sufficient. Cadle v. State, 464.

3. It is impracticable to lay down a form of charge an accomplice testimony
for general use, because facts arise wherein it would be inappropriate. How-
ever, where the charge submitted was a copy of one sanctioned by this
court, and was applicable to the facts in the case, there was no reversible error.
Following Campbell v. State, 67 Texas Crim. Rep., 301, and other cases.
Watson v. State, 576.

County Attorney. See Privileged Communication.

County Judge. See Disqualification of County Judge.

Credibility of Witness.

1. Where defendant offered in evidence certain indictments against a
State's witness charging embezzlement, and also judgments of conviction upon
pleas of guilty against the same party, but the record showed that such
witness had not testified in the case, and was not the alleged original taker of
the stolen property, there was no reversible error. Kluting v. State, 44.

2. Upon trial of murder, there was no error in sustaining objections to
testimony showing that the State's witness had filed a complaint against
the third party for rape, who had been acquitted; nor was there error in
sustaining objections to questions to said witness as to whether or not she
and her sister had accompanied two men to a certain town and stayed there
over night; besides, the questions would have been answered in the negative.
Barnes v. State, 51.

Where upon original application for a writ of habeas corpus, a pre-
liminary writ was granted, but it later appeared that relator was not in
custody, the application must be dismissed. Ex Parte Oates, 284.

Date. See Passing Forged Instrument.

It is no good objection to the testimony of a physician, who examined the
injured female that while same took place after the alleged rape, the date
of such examination could not be stated with accuracy. Mannon v. State, 512.

Date of Offense.

1. Proof of relevant facts is competent going to show that the offense was
committed at any time within the period of limitation, and anterior to the
presenting of the indictment. Following Russell v. State, 53 Texas Crim.
Rep., 500, and other cases. Daniel v. State, 225.

2. Where, upon trial of malicious mischief, there was a variance between
the date of the offense as alleged in the complaint and as set out in the in-
formation, such variance was fatal, and reversible error. Following Lackey
v. State, 53 Texas Crim. Rep., 459, and other cases. Stephens v. State, 245.
3. Where, upon trial of statutory rape, the indictment alleged that it oc-
curred about the first of November, 1919, it was the State's privilege to
found its prosecution upon any such act of defendant and the prosecutrix
within twelve months next preceding the filing of the indictment. However,
the State could only convict but for one offense-and it was defendant's right
to have the prosecution elect the transaction upon which it would seek to con-
viet him. Following Bader v. State, 57 Texas Crim. Rep., 294, and other
cases. Crosslin v. State, 467.

4. Where the date of the offense charged was November 4, 1918, and the
prosecutrix testified that an act of intercourse took place on such date, and
no mention was made by her of any other occurrence between herself and
her father, but it developed on cross and re-examination that another act
of intercourse with defendant occurred in January, 1919, and this was also
testified to by another State's witness, and the State thereupon elected to
rely for a conviction upon the act of November 4, 1918, under a proper
charge limiting same to that date, there was no error in refusing a requested
charge that the jury could not consider, for any purpose, the evidence of the
other act of intercourse. Following Bradshaw v. State, 82 Texas Crim.
Rep., 351. Rodriguez v. State, 566.

Daytime Burglary. See Burglary, 4.

Deadly Weapon. See Aggravated Assault, 6; Requested Charge, 13; Simple
Assault.

1. Where, upon trial of aggravated assault the ground of aggravation be-
ing a deadly weapon, it was reversible error to refuse a requested charge
presenting the usual and customary definition of a deadly weapon, and the
court having failed to define in his main charge that term, the same was
reversible error. Jackson v. State, 369.

2. A doctor can say whether an instrument of a certain length and size
that had inflicted a certain wound would be a deadly weapon; following Har
din v. State, 51 Texas Crim. Rep., 561; distinguishing Tolston v. State, 88
Texas Crim. Rep., 269; besides, the verdiet being general may have been
based on the inflicting of serious bodily injury as alleged in the second count
and supported by the evidence. Svidlow v. State, 510.

3. That one cuts another with a pocket-knife voluntarily does not make
him guilty of assault to murder, unless an intent to kill is shown, and the mere
fact that the pocket-knife was used is not proof that it was a deadily weapon.
Following Johnson v. State, 49 Texas Crim. Rep., 429. Moody v. State, 529.

4. Where, upon trial of murder, there was a sharp contention as to whether
the deceased had a pistol and was making any attack or demonstration with
it when he was shot, a requested charge presenting the principle embodied in
Article 1106, P. C., was correctly refused, inasmuch as the main charge
presented all the theory of defense in the requested charge. White v. State,
584.

5. Where, upon trial of murder, the court's main charge in connection
with his explanation to the jury of the law of self-defense, included Article
1106, P. C., but made no application of the law as therein stated to the facts
of the instant case, held that under the facts there was no error in refusing
a requested charge instructing the jury that if deceased was using a knife
in his attack on defendant and that said knife was such as would have been
calculated to inflict death or serious bodily injury, that then the law pre-
sumed that it was the design of the deceased to inflict such injury, etc., as the
evidence in the case did not raise such issue. Briscoe v. State, 650.

Debtor and Creditor.

Where the evidence did not raise the issue submitted in the requested
charge, that if the relation of debtor and creditor existed the defendant should
be acquitted, etc., there was no error in refusing the requested charge.
Rundell v. State, 410.

Declarations and Acts of Co-conspirators.

The acts and declarations of co-conspirators made in pursuance of a
common design and prior to the commission of the offense, may always be
admitted in evidence, regardless of whether same are made in the presence
of the accused or not. Gerber v. State, 37.

Declarations and Acts of Defendant. See Evidence.

1. Upon trial of murder, where defendant was charged with killing his
mother-in-law, there was no error in admitting testimony that the defendant
charged his wife with improper conduct with other men with the encourage-
ment of the deceased, and also the cruel treatment to his wife, to which
deceased objected, and which led to the killing. Smith v. State, 24.

2. Where defendant complained that the court did not permit him to in-
troduce testimony as to conversations between defendant and a third party,
but the record showed, on appeal that this testimony was introduced there-
after, there was no reversible error. Id.

3. Where, upon trial of theft by false representation, the defendant
claimed that he was secretary of a certain cotton exchange, there was no error
in permitting the State to show that defendant was not an employee of such
exchange and show the falsity of the defendant's statement to the party in-
jured. Gerber v. State, 37.

4. Upon trial of assault with intent to murder defendant's witness testi-
fied that defendant, when he reached home, said that he was shot by an
officer, there was no error in refusing a postponement of the trial by verbal
application to suspend the trial until defendant's wife was able to attend
the court, to show that defendant said he was attacked by a robber; besides,
the same testimony had already been admitted. Walker v. State, 56.

5. Where, upon trial of murder, the State's witness was asked, with refer-
ence to the conduct of defendant while deceased was suffering and claiming
to be dying from poison, there was no error in permitting the witness to
state that the defendant did not cry or take on or anything. This was a
shorthand rendering of the facts, and admissible in evidence. Cook v. State,
424.

6. Where, upon trial of murder, it was the theory of the State that de-
ceased had been trying to get away from defendant on account of her im
moral conduct, and that of defendant was that her conduct was caused and
procured by deceased against her wishes, and there was an application for
suspended sentence, there was no error in admitting testimony as to her
immoral association with other men, to show whether she was still living
an immoral life, after she had forfeited her bond. Ott v. State, 403.

7. The mere fact recited in the bill that the sheriff came to where defend-
ant was or had talked to him after the cutting and prior to the making of
certain statements by defendant, would not be tantamount to such showing
of an arrest as would be necessary in order to exclude such statements, and
this showing would not support objections to statements of defendants made
after said visits of the sheriff, and there is no reversible error. Moody v. State,

529.

Declarations of Injured Parties. See Res Gestae, 1.

Declarations and Acts of Prosecutrix.

Upon trial of rape by threats, there was no error in permitting evidence
that prosecutrix went at once to her nearest neighbors who lived but a
few feet from her home and made complaint, and that she and her clothing
were bloody, etc. Following Duke v. State, 35 Texas Crim. Rep., 283, and
other cases. Grace v. State, 329,

Declaration of Third Parties. See Conversation Between Third Parties.
Defendant's Absence.

In the absence of a statement of facts of the evidence heard on a motion
for new trial, on account of the absence of the defendant when the verdict
was received, the matter cannot be reviewed and there is no reversible error
on that ground. Jackson v. State, 369.

Defendant as a Witness.

Our statute gives the defendant the privilege of testifying in his own
behalf, and when he does so, he becomes a witness and is subject to all the
tests of truth that are applied to other witnesses, and when he testifies to
facts which, if true, excuse or mitigate the offense, with which he is
charged, no judge has the authority to decide that his testimony is false,
but the jury must pass upon its credibility under a proper charge of the
court. This is demanded under the Bill of Rights which provides the right
of trial by jury to remain inviolate. Hays v. State, 192.

Defense of Another.

Where, upon trial of murder, the court gave a charge applying the prin-
ciple of self-defense to the theory arising from the evidence, that if defend-
ant took part in the homicide, and was acting in defense of his brother who
had been fired upon and shot by the deceased, he should be acquitted, but
the evidence raised the issue of self-defense applicable to the defendant him-
self, and the court failed to charge on the law of self-defense applicable to
the defendant in defending his own person, the same was reversible error.
Following Knight v. State, 84 Texas Crim. Rep., 396, and other cases. Hays
v. State, 192.

Defensive Theory.

1. Where, upon trial of murder and a conviction of manslaughter, the
evidence showed that defendant took no part in the dispute of his co-defendant
and the deceased, and that his acts and conduct were based upon another
motive, and that this constituted defendant's theory of defense, the same
should have been affirmatively submitted as requested. Joyce v. State, 265.

2. There is no better settled proposition in our practice than that where
there is a defensive theory, it should be submitted in the charge in an
affirmative manner, and where a special charge is requested, submitting such
defensive theory, it should be submitted to the jury unless it be substantially
contained in the main charge of the court. Following Martin v. State, 57
Texas Crim. Rep., 264, and other cases. Duncan v. State, 479.

Definition of Offense. See Abortion; Statutes Construed, 5, 8.

Where the information charged both wilful desertion and failure to pro-
vide for the support and maintenance of the wife, who was alleged to have
been in necessitous and destitute circumstances, and both were submitted to
the jury and a general verdict was returned, there was no error on that ground,
and contention of counsel that desertion was a necessary element of the
offense, even though neglect and refusal to provide for, support and maintain
the wife was shown, is untenable. Following O'Brien v. State, 90 Texas
Crim. Rep., 276, recently decided. Bobo v. State, 397.

Degree of Assault. See Defense, 5.

Delivery of Pardon. See Practice in Trial Court, 17.

Details of Other Offenses.

The only inquiry made of defendant by the State was, if it was not for
a conspiracy to sell liquor to the soldiers at Ft. Worth, that he was con-
victed, and no details of the manner of the commission of the offense were
inquired into, there was no reversible error. Mason v. State, 560.

Description of Money. See Indictment, 6.

Discretion of Court. See Continuance.

It will not be concluded that the trial court abused his discretion in
overruling the application for a change of venue unless injury appears.
Carlile v. State, 1.

Disqualification of County Judge.

Where defendant filed a motion to disqualify the trial judge on the
ground of prejudice, and it appeared from the record that no evidence was
offered to substantiate this claim, and a specific denial of the judge appeared,
and the matter was so accepted by the defendant the same cannot be reviewed
on appeal. Black v. State, 218.

Dismissal. See Severance, 1.

District Attorney. See Conduct of District Attorney; Prosecuting Officer.
Duplicitous Pleading.

was

1. Where, upon trial of manufacturing and possessing intoxicating liquor
not for medicinal, etc., purposes, the count submitted charge that the de-
fendant manufactured and possessed the liquor in question, the same
duplicitous pleading and bad upon motion to quash, the offenses being
separate and distinct. Following Todd v. State, 89 Texas Crim. Rep., 99.
Vrazel v. State, 162.

2. Where, upon trial of transporting intoxicating liquors, etc., the in-
dictment in the second count was obnoxious on motion to quash, to the
rule of duplicitous pleading, the motion to quash should have been sustained.
Following Todd v. State, 89 Texas Crim. Rep., 99. Cook v. State, 646.

Duress.

Where appellant claimed duress in his motion for new trial, but the
record failed to show any such condition of fact, there was no reversible
error. Following Burton v. State, 51 Texas Crim. Rep., 201. Rozier v. State,
337.

Dying Declarations.

Where the record on appeal showed that a due predicate was laid for the
introduction of dying declarations, there was no merit in defendant's declara-
tion that said predicate was insufficient. Hays v. State, 355.

Election by State. See Date of Offense, 3; Separate Offense, 2.

1. Where the defendant complained that the court should have charge i
the jury not to consider the first count in the information, to-wit, that of
habitual intercourse without living together, but seemed to have been sat-
isfied with the court's refusal to permit an election, and there was no bill
of exceptions, there was no reversible error. Cadle v. State, 464.

2. Where, upon trial of statutory rape, the State proved some fifty dif
ferent acts of sexual intercourse not barred by limitation, and the defendant
sought to bring the State to elect as to which offense it based a conviction
upon, and the court refused it, but notified the defendant, after the close of
his evidence, that the jury would be instructed that the State would rely upou
a certain act of intercourse for a conviction, this was reversible error. Fol-
lowing Lunn v. State, 44 Texas, 87, and other cases, as the State should have
been required, in the instant case, to make an election at the close of its
testimony. Crosslin v. State, 467.

Embozzlement.

Where, upon trial of embezzlement, the evidence was insufficient to sup-
port the conviction, in that the corpus delicti was proven only by the extra-
judicial confession of defendant himself, the judgment must be reversed
and the cause remanded. Richardson v. State, 353.