8. Where, upon trial of murder, complaint was made that the court's
charge on manslaughter did not submit to the jury the question of adequate
cause, as to defendant's knowledge of assault previously made on him and
other persons, but the record showed that the court did instruct the jury that if
they found from the evidence that previous to the shooting the deceased had
made an assault or assaults on the defendant they would take that with all the
other facts in determining the facts of adequate cause. Same was sufficient;
besides, provocations arising by the acts of others or third parties are not
required in the charge. McDaniel v. State, 636.
The possession of the bill of lading put the property under the control
of the defendant and unless under our statute the manual possession of it
was required, he, in receiving the bill of lading, received the property,
Manual possession is not necessary. Glasser v. State, 116.
Manufacturing Intoxicating Liquor. See Intoxicating Liquor.
Medicine. See Illegal Practice of Medicine.
Where, upon trial of murder, the evidence did not show that the deceased
and his companions knew there were any melons in the patch pulled or
piled up in the field, there was no error in refusing the requested chargo
that if deceased entered the premises in question on the night of the homicide
to steal melons already severed from the vines, etc., to acquit the defendant.
Espalin v. State, 625.
Mental Attitude. See Evidence, 10.
Mingling Poison. See Food.
Where, upon trial, under Article 1077, Penal Code, the facts showed
that it was the custom of the family to use the coffee grounds left from
breakfast in preparing coffee for the noon meal, and that afterwards strych-
nine was mingled in same by defendant, the offense was complete under
said article. Harkey v. State, 212.
Misconduct of Jury. See Jury and Jury Law.
1. Where the judgment is reversed and the cause remanded for other rea-
sons, a complaint of the misconduct of the jury need not be considered,
but the courts are again told to carefully caution juries not to discuss any
matters outside of the record. Gunn v. State, 209.
2. Where the question was raised that after the retirement of the jury to
deliberate on the case it received cther evidence, the affidavits evidencing
such facts and attached to the motion for new trial was sworn to before
defendant's counsel as a notary, the same cannot be considered on appeal.
Following Maples v. State, 60 Texas Crim. Rep., 171, and other cases. How-
ever, where oral testimony was permitted on the hearing of motion for new
trial, but nothing appeared in the record to show that at the time of the
jury's deliberation any such outside evidence was received, there was no
reversible error, and at most the matter was a mere statement of one
juror that the accused had been previously convicted, and there was no rever-
sible error. Gonzales v. State, 238.
3. It is mandatory that the statement of facts of the testimony adduced
upon motion for new trial shall be filed during the term of court, other-
wise it cannot be considered on appeal. Following Probest v. State, 60 Texas
Crim. Rep., 608, and other cases. Parrocini v. State, 320.
4. Where, upon appeal from a conviction of murder, it appeared from the
record that the jury while deliberating upon their verdict received evidence
which was not before them during the progress of the trial, and that this in-
fluenced the verdict of the jury, the judgment must be reversed and the
Misconduct of Jury-Continued.
cause remanded. Following Gilbert v. State, 85 Texas Crim. Rep., 597, and
other cases. Suddath v. State, 401.
5. All matters relating to the misconduct of jurors are addressed primarily
to the discretion of the trial court, and unless it appears to this court
that such discretion has been abused, it will uphold the conclusions of the
court below, and there was no reversible error. Mannon v. State, 512.
6. Where the judgment is reversed and the cause remanded for other rea-
sons, it is not required in the instant case to pass upon the misconduct of
the jury of receiving outside evidence or upon the argument of state's counsel.
Lewellen v. State, 588.
In misdemeanor cases complaints of the charge of the court and of re-
fusal to give requested charges are reviewable only upon bills of exception.
Following Brown v. State, 73 Texas Crim. Rep., 574. Daniel v. State, 225.
Where, upon trial of misdemeanor theft, the record on appeal showed
that defendant was found in possession of recently stolen property, and did
not explain its possession in a reasonable manner, the conviction is sustained.
Following Roberts v. State, 17 Texas Crim. App., 82, and other cases. Wright
v. State, 318.
Misspelling. See Indictment.
Mere matters of bad spelling, etc., did not ordinarily affect the indictment,
and the motion being addressed to the form of said indictment must in any
event be raised by motion to quash, and cannot be urged after verdict.
Mosier v. State, 136.
A description in the indictment of the property alleged to have been taken
in the robbery as forty-one dollars in money, is sufficient, and proof of such
fact meets the requirement of the law; and it was not necessary to allege the
value of the property. Gunter v. State, 147.
1. The refusal of a witness to answer the question propounded by de-
fendant's attorney as to whether he had ever been convicted of a felony was
not reversible error, and could not form a sufficient predicate for the
objection that such witness was incompetent because an unpardoned con-
viet; the burden being upon the objector to show the incompetency of the
witness; besides, the witness stated on cross-examination that he had not
been confined in the penitentiary within the last ten years. Fridge v. State, 75.
2. Upon trial of robbery, there was no erro in denying the defendant
the privilege of proving that the injured party was operating the gambling
house in question; besides, this fact was admitted by the other witnesses.
Thompson v. State, 125.
Motion For New Trial. See Continuance; Duress; Newly Discovered Evidence;
Statement of Facts.
1. In the absence of a bill of exceptions, a motion for new trial complain-
ing of errors in the reception of evidence cannot be considered on appeal.
Whitley v. State, 352.
2. In the absence of a statutory direction in such case, it is suggested
that if the accused desires to controvert such statement by the court that no
exception was in fact taken, he may raise the issue in his motion for new trial
and tender evidence in support thereof, which, if controverted, may then be
taken to this court for consideration; but where in the instant case defendant
Motion for New Trial-Continued.
seems to have made no further effort to get the matter into the record and
brings his matter here by direct affidavit of his attorney, the same cannot be
considered. Donohue v. State, 541.
3. Where appellant in his motion for rehearing again contended that his
application for continuance should have been granted, but in the light of the
facts developed upon the trial and upon the hearing of the motion for new
trial, the action of the trial judge in overruling the motion for new trial
was clearly not an abuse of discretion, there was no reversible error. McDuff
v. State, 557.
4. If diligence is shown and the absent testimony appears material and
probably true, and of such character as that same might have produced a
different result, a new trial should be granted, and where, as in the instant
case, the absent witness made affidavit that he would have sworn to the facts
stated in the application, the question of probable truth of such testimony is
no longer one for the decision of the trial court. Following Baines v. State,
42 Texas Crim. Rep., 510, and other cases. White v. State, 584.
Where, in a motion for rehearing, appellant asked for a writ of certiorari
to complete the record, but failed to state in what particular the record was
incomplete, and two months have elapsed since, and no application for cer-
tiorari has been filed, the motion for rehearing must be overruled.
Cole v.
State, 540.
The uniform holding of this court is that an objection of this character
must be raised in limine and not in this court. Following Coney v. State,
2 Texas Crim. Rep., 62. Gilmore v. State, 611.
Motion to Examine Prosecutrix Physically.
Where prosecutrix had denied that she had ever had intercourse with de-
fendant or any other man, and thereupon the attorney for the defendant
requested the court to appoint three reputable physicians to examine her
as to whether she had ever engaged in sexual intercourse, which motion
the court refused, there was no reversible error, as the prosecutrix could
not be subjected to such examination by the order of the court. Rettig v.
State, 142.
Motion to Quash. See Indictment.
1. Where, upon trial of murder, defendant introduced testimony that the
relations between him and his wife were more than ordinarily pleasant, etc.,
and that deceased attempted to disrupt his family relations and for no cause
induced defendant's wife to leave him, there was no error in permitting the
State to show that deceased in the advising and bringing about a separation
between defendant and his wife, was on account of his unwarranted cruelty
toward his wife, and that defendant acted with malice in killing her. Fol-
lowing Eads v. State, 76 Texas Crim. Rep., 647, and other cases. The de-
fendant having failed to introduce his wife as a witness. Smith v. State, 24.
2. Upon trial of robbery, evidence was admitted that the defendant on the
second day preceding the offense engaged in a game of poker, with some of
the parties who were afterwards robbed, and where the bill of exceptions did
not state the surrounding facts, and did not show the parties who were en-
gaged in the gambling, the same could not be considered on appeal, be-
sides the evidence was admissible, under the facts of the instant case. Adams
v. State, 65.
1. Article 820M, Vernon's P. C., with reference to the offense of an auto-
mobile striking any person, etc., and not rendering assistance, etc., is valid,
and the motion to quash the indictment because of the invalidity of said
statute is properly overruled. Distinguishing Russell v. State 88 Texas Crim.
Rep., 512. Scott v. State, 100.
2. Where, in his amended motion for a new trial, appellant for the first
time set up the unconstitutionality of Section 18, Chapter 207, Acts of
Regular Session, Thirty-fifth Legislature, held: this should have properly
been presented by motion to quash. Mosier v. State, 136.
3. Article 820-m, supplement to Vernon's Penal Code, is valid with certain
interpretations and limitations. Following Scott v. State, 90 Texas Crim.
Rep., 100. Stalling v. State 310.
4. Article 820-0, of the so-called State Highway Law, with reference to
motor vehicles, provides among other things that it shall be unlawful to
drive an automobile at a rate of speed in excess of twenty-five miles per hour;
and where the information under this article alleged that the defendant
drove at a rate in excess of twenty-five miles an hour, the same alleged an
offense under said article; and a motion to quash was correctly overruled;
although other parts of the indictment may have been insufficient. Follow-
ing. Noodleman v. State, 74 Texas Crim. Rep., 611. Parroccini v. State, 320.
Murder. See Cause of Death; Certified Copy of Venire; Evidence, 1; Justifiable
Homicide; Intent to Kill; Malice; Manslaughter; Provoking Difficulty;
Race Discrimination; Self Defense; Strychnine Poisoning.
1. Where, upon trial of murder, the evidence sustained the conviction
under a proper charge of the court, there was no reversible error. Monday
v. State, 8.
2. Where, upon appeal from a conviction of murder, it appeared from the
record that defendant asked a peremptory instruction of "not guilty," upon
the ground that the evidence did not establish that the shot from the gun
of appellant killed deceased which requested charge was refused. There was
no error, as it appeared from the record that defendant did the shooting.
Green v. State, 149.
3. Where, upon appeal from a conviction of murder, no fundamental error
appeared, the judgment must be affirmed in the absence of a statement of
facts and bill of exceptions. Jackson v. State, 187.
4. Where, upon trial of murder, the evidence showed that the defendant
was present when the deceased was killed, knowing the unlawful purpose of
his companions who also engaged in the killing, he aided and encouraged
them, the court properly charged on the law of principals under Article 78,
Penal Code. Following Middleton v. State, 86 Texas Crim. Rep., 307. Hays
v. State, 192.
5. Where, upon trial of murder and a conviction of that offense, with life
imprisonment, the evidence is sufficient to sustain the conviction, there was
no reversible error. Johnson v. State, 229.
6. Where, upon trial of murder and a conviction of manslaughter, the
evidence sustained the conviction, there was no reversible error. Jetty v.
State, 346.
7. Upon trial of murder, where the defendant with others acted together,
there was no error in admitting testimony as to conduct of one of the de-
fendant's companions toward the deceased before leaving the dance, and to-
wards a certain female in deceased's company at the first stop on the bridge,
after they had left the dance, under the well known rule that what is done
and said by any of the co-conspirators pending the conspiracy and in further
ance of the common design is admissible against the defendant, although said
and done in his absence. Hays v. State, 355.
8. Where, upon trial of murder by poison, it was shown that deceased in a
conversation with defendant told her that she had given him poison and he
was going to die, and this was said when deceased was suffering with cramp-
ing and convulsions, there was no reversible error. Cook v. State, 424.
9. Where, upon trial of murder, the defendant contended that he went
to the premises of deceased unarmed, upon the invitation of deceased's father,
upon a peaceful mission and for a lawful purpose, and that the manner in
which the homicide took place, etc., excluded the theory of malice as a matter
of law, held: that this was a question of fact for the jury, and it was not
necessary for the jury to believe that the defendant had the intent to kill
the deceased when he went to his home, for he might have formed malice
after he reached the same. Following McCoy v. State, 25 Texas, 37, and
other cases. Williams v. State, 451.
10. Where, upon trial of murder, the court's charge on self-defense was
criticised because it limited the right of self-defense to an actual attack, and
that the theory of apparent danger should have been submitted, but it appeared
from the testimony that the deceased with the threat upon his lips and
the butcher knife in his hand was advancing upon the defendant in a menane-
ing attitude in striking distance at the time the shot was fired, there was
no reversible error. Lewellen v. State, 588.
11. Where, upon appeal from a conviction of murder, appellant contended
that the corpus delicti was not sufficiently proved, but the record showed that
the son of deceased testified that the deceased told him appellant shot her;
that the shooting was admitted by the defendant, etc., the corpus delicti
was sufficiently proven. McDaniel v. State, 636.
12. Where, upon trial of murder, the defendant claimed that deceased
made an attack upon him of such a character as did not comport with the
ordinary conduct of one of his age and defective vision, there was no error
in admitting testimony in rebuttal that deceased's eyesight was very bad,
and that he could not recognize persons close to him, etc. Briscoe v. State, 650.
Name of Party Injured.
Where the party alleged in the indictment as owner, etc., testified that
as manager he had the care and control of the money of the bank, there
was no error in overruling the question raised as to variance, and the fact
that another was present with the party alleged in conveying the money
when the assault was made did not show any such variance. Following
Hasley v. State, 87 Texas Crim. Rep., 444, and others Cases. Carreon v.
State, 572.
Where, upon trial of fraudulently receiving stolen property, the indict-
ment alleged that the person from whom the property was received was
unknown to the grand jury, but the State introduced no testimony to show
that the grand jury made any investigations concerning said name, and it
was made affirmatively to appear from the record on appeal that knowledge
was available to the grand jury; that defendant claimed he had received said
property from a certain party at the time of his arrest, etc., the judgment
must be reversed and the cause remanded. Following Jorasco v. State, 6
Texas Crim. App., 238, and other cases. Mayfield v. State, 315.
Names of Witnesses on Information.
In the absence of any injury shown to the defendant, and the record
showing that ne was given ample time and opportunity to consult the wit-
nesses against him, there was no error in overruling his motion that the
names of certain witnesses did not appear on the information. Carter v.
State, 248.
Negative Exceptions. See Statute Construed, 12.
The doctrine is that the indictment, under the statute, like any other, must
show a prima facie case, and it need not do more. So, that if the statute has
exceptions, provisos, and the like, those which are affirmative elements in
the offense must be negatived in averment, while those in the nature of
defense may be disregarded. In its application much depends on the location
of the severa clauses or provisions in the statutes; and applying this rule,
the matter of chastity is not an affirmative element of the offense of rape upon
a female under the age of consent, but unchastity is a fact available as a de-
fense. Following Newman v. State, 58 Texas Crim. Rep., 226, and other cases.
Moore v. State, 604.
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