co-principal or through an innocent agent would come within the purview
of the statute. Smith v. State, 273.
2. The offense of possessing intoxicating liquor as defined by the Dean
Law prior to the amendment thereof was so changed as to amount to a repeal
of the former law, and the case must be reversed and dismissed. Following
Cox v. State, 90 Texas Crim. Rep., 256, recently decided, and other cases,
Lee v. State, 458.
3. Where, upon trial of passing a forged instrument, it was alleged that
the instrument was passed on the agent of the owner who was his employee at
the time, and who was in actual possession of the alleged goods which were
taken, a complaint as to variance, ownership and possession is not well
taken. Following Heimes v. State, 59 Texas Crim. Rep., 420, and other
Duncan v. State, 479.
4. While the second count in the indictment was duplicitous, yet the third
count charging possession was good under the law as it was when the in-
dictment was presented, and the case tried, but since the amendment re-
pealing the possession of intoxicating liquors, the same is not now made an
offense unless the same is for the purpose of sale; and there being no saving
clause in the amendment, the judgment must be reversed and the cause dis-
missed, and no further prosecution can be had under that count. Cook v.
State, 646.
1. Where the amended statutes disclosed that possession of equipment for
making intoxicating liquor is not enumerated in the forbidden act, the same
constitutes a repeal of the law under which defendant was convicted, and the
judgment must be reversed and dismissed. Following Harold v. State, 16
Texas Crim. App., 157, and other cases. Cox v. State, 256.
2. Where, upon appeal from a conviction of the unlawful possession of
equipment for making intoxicating liquor, it appears in obedience to Art.
16, of the Penal Code, exempting from punishment those offending against
the law subsequently repealed before the judgment becomes final, the judg-
ment must be reversed and the cause dismissed, this is accordingly done.
Following Cox. v. State, 90 Texas Crim. App., 258. Holland v. State, 394.
3. Where but one offense was committed by the defendant, and several
counts in the indictment were submitted to the jury, the general charge to
the jury upon which a general verdict was rendered supports the conviction of
the count in which the stolen money was alleged in a certain bank cashier,
and the fact that another count alleged a different owner is not material.
Byrd v. State, 418.
Where, upon trial of murder, the defendant claimed that deceased at-
tacked him with a knife and cut his clothes, which were exhibited to the
jury, and it was a controverted question whether deceased ever opened his
knife, and it was the theory of the State that defendant cut his own clothes,
there was no error in permitting the State in rebuttal to prove that when de-
fendant was arrested he had a very sharp knife in his possession, whereas
the evidence showed that the closed knife found near the body of deceased
was very dull and in a generally delapidated condition. Briscoe v. State, 650.
Practice in Misdemeanor Cases.
In the absence of a requested charge for the court's failure to define the
term wilfully as used in the complaint and information, no reversible error
was committed in a misdemeanor case. Stephens v. State, 245.
Practice in Trial Court. See Absence of Defendant; Charge of Court; Con-
tinuance; Election by State; Evidence; Jeopardy; Jury and Jury Law;
Motion to Examine Prosecutrix; Practice on Appeal; Remarks by Judge;
Self-Defense; Severance.
1. Where the State abandoned its question objected to by the defendant
without waiting for a ruling of the Court, and then asked whether the witness
Practice in Trial Court-Continued.
compared the numbers of a certain bill of lading with those on the boxes
which contained the property in question, to which he answered affirmatively,
and that they corresponded, and there was no motion to exclude, the bill of
exceptions presented no reversible error. Kluting v. State, 44.
2. In the absence of a statement of facts, this court is deprived of any
means by which it may determine that certain evidence was improperly
admitted, and must presume that no error in fact occurred. Dove v. State, 85.
3. Where appellant urged on his motion for rehearing that the judgment
should be reversed and the cause remanded for the failure of the court be-
low to submit the law of accomplice testimony, but it appeared from the
record on appeal that no exception was taken to such failure, and no re-
quest appearing for the submission of such issue, there was no reversible
error. Following Huggins v. State, 85 Texas Crim. Rep., 205, and other cases.
Besides, in the instant case, if there was accomplice testimony, it was amply cor-
roborated. Howard v. State, 164.
4. Where, upon motion for rehearing, appellant again contended that the
judgment should be reversed and the cause remanded, because of a tempo-
rary absence of defendant during his trial, this court is of the opinion that
the accused was confronted with the witnesses against him and given every
opportunity to cross-examine and preserve any rights due him, and that he
was present at his trial within the contemplation of our statute, and there
is no reversible error. Sullivan v. State, 170.
5. By Article 743, C. C. P., it is required that objections to the charge of
the court shall be made before it is read to the jury, and that the refusal
of requested charges must be then objected to, and in the absence of state-
ment of facts and bill of exceptions, there is nothing to review. Following
Nelson v. State, 59 Texas Crim. Rep., 149. Phillips v. State, 186.
6. Where appellant complained that he was not granted sufficient time to
prepare for trial, but the record showed the reverse, there was no rever-
sible error. Brooks v. State, 208.
7. It is the better practice that after jurors are selected as veniremen that
they be withdrawn from the courtroom during the examination of the re-
mainder of the venire. Following Crow v. State, 89 Texas Crim. Rep., 142.
Gunn v. State, 209.
8. Where the effect of the procedure in stopping the defendant from stat-
ing his case for suspended sentence, was to prevent him from having
the question submitted to the jury upon trial of violation of the Dean Law,
the same was reversible error. Following Carr v. State, 89 Texas Crim.
Rep., 245. Brown v. State, 231.
9. Where defendant objected to a question propounded by the State to a
witness, after the answer of the witness was given, and there was no mo-
tion to strike out the answer, etc., the motion was correctly overruled, and
there was no reversible error. Johnson v. State, 229.
10. Where defendant was arrested on Tuesday, and tried on the following
Monday, in a misdemeanor case, there was no merit in the contention that
defendant was forced to trial too soon after his arrest. Carter v. State, 248.
11. Where, upon trial of procuring objection was made to a certain letter
offered in evidence, which was sustained, but it was then agreed that the
same be introduced in evidence, there was no reversible error. Id.
12. Upon trial of felony theft, it was manifest error in failing to
give a written charge to the jury, informing them of the law applicable
to the offense and the punishment. Following Williams v. State, 18 Texas
Crim. App.. 409, and other cases. Howard v. State, 270.
13. Where it did not appear from the record on appeal that the requested
charges were presented to the court prior to the reading on the main charge,
there was no reversible error. Following Oliver v. State, 58 Texas Crim.
Rep., 50. Hurst v. State, 446.
14. Where appellant again insisted that the lower court committed reversi-
ble error in not taking action on bill of exceptions to argument of State's
counsel, this court might content itself by saying that the correctness of the
court's action may not be made an issue when only controverted by the af-
fidavit of appellant's attorney in this court. Following Moore v. State, 47
Practice in Trial Court-Continued.
Texas Crim. Rep., 410. However, this being an important matter of practice,
the same will be further discussed. Donohue v. State, 541.
15. Where appellant excepted to the charge of the court in many particu-
lars, but it is found on examination of the record that the corrections must
have been made in the court's charge, as the same is not subject to com-
plaints, as urged, there was no reversible error. Mason v. State, 560.
16. Where defendant by cross-examination of prosecutrix and by the in-
troduction of evidence contradictory of that given by her sought to destroy
the State's case as to the acts of intercourse alleged in the indictment, and
denied such intercourse, there was no error in admitting as evidence that
after such act of intercourse another act of intercourse was indulged in
shortly thereafter. Rodriguez v. State, 566.
17. Where the defendant objected to the pardon because same had never
been delivered to, or accepted by the witness, and thereupon the county at-
torney asked the witness if he accepted the pardon, and receiving an af-
firmative answer, there was no reversible error. Following Hunnicut v. State,
18 Texas Crim. App., 498. Watson v. State, 576.
18. Where the sheriff was on the witness stand, having been called by the
defendant and the district attorney asked him, on cross-examination. "You
say you haven't been interested in defendant's defense," to which he replied
in the negative, and was then asked "Didn't you state this week that you
would have to stay with her because you didn't want the job of hanging
her," to which he also replied in the negative, and to which the court sustained
defendant's objection, there was no reversible error; besides, the bill of ex-
ceptions did not point out what testimony had been given by the witness on
direct examination. McDaniel v. State, 636.
19. This court would not be inclined to hold that reversible error was com-
mitted by the asking of a question by the State, to which the objection of
the accused was sustained unless some injury was involved. Id.
Practice on Appeal. See Affidavit, 2; Argument of Counsel; Article 743; CCP;
Bill of Exceptions; Companion Case; Copy of Indictment; Escape;
Final Judgment; Harmless Error; Misconduct of Jury; Motion for New
Trial; Murder; Newly Discovered Evidence; Recognizance; Reforming
Judgment; Rehearing; Requested Charge; Statement of Facts; Suf-
ficiency of Evidence; Transcript; Verdict.
1. Where application for habeas corpus is filed in this court during vaca-
tion, the judges of this court may hear argument concerning the matter
during vacation, and may decline bail pending the hearing. Following
Ex Parte Erwin, 7 Texas Crim. App., 288. Ex Parte Sparks, 190.
2. Where the requested charges were submitted to the trial judge at the
time he prepared his general charge, and were not embraced in their entirety
in the charge of the court, and there were no written exceptions at the time
the charge was given, objections on that account cannot be considered on ap-
peal. Black v. State, 218.
3. The burden is not upon the court of appeals to discuss all questions
raised. To do so would extend the opinion beyond reasonable limits. How-
ever, in the instant case this was done. Daniel v. State, 225.
4. In the absence of a statement of facts and bills of exception, refused
requested instructions cannot be considered; and the indictment being good,
and the charge of the court in conformity to the law, the judgment must be
affirmed. Palms v. State, 260.
5. Where the judgment is reversed and the cause is remanded for other
reasons, the question as to irregularities in drawing the venire need not be con-
sidered. Joyce v. State, 265.
6. In the absence of a bill of exceptions, the requested charges in a mis-
demeanor case will not be considered on appeal. Following Barrios v. State, 83
Texas Crim. Rep., 548. Wright v. State, 318.
7. Where appellant in his motion for new hearing presents no new matter,
the motion will be overruled. Parrocini v. State, 320.
Practice on Appeal-Continued
8. Where the bill of exceptions consisted entirely of questions and an-
swers and rulings of the court, same could not be considered on appeal; be
sides, there was no reversible error when the bills were considered, and all
were defective in not complying with the rules for bills of exception. Jetty
v. State, 346.
9. Without attempting to discuss the question of procedure, in the action
of the trial court, and having examined the amended motion for new trial
this court finds therein no such grounds as would have called for the grant-
ing of same, had permission been given defendant to file it, and the trial
court considered same as upon a regular filing and presentation, and there was
no reversible error. Gay v. State, 373.
10. Where appellant was admitted to bail while he was charged by com-
plaint, and afterwards was indicted for the same offense, and bail again re-
fused in the lower court, without any additional facts, the judgment must be
reversed and the cause remanded. Ex Parte Fields, 395.
11. Where this court had granted bail on habeas corpus, which was denied
by the District Judge, and after indictment was returned the district judge
upon the same facts again denied bail, held; that whatever views the dis-
trict judge may entertain personally, with reference to either the law or the
facts, whenever this court has expressed its opinion, it is the duty of the
lower court to respect it and bail is granted in the instant case. Ex Parte
Scott, 396.
12. In the absence of a statement of facts and bills of exception, a motion
for new trial supported by affidavit expressing the opinion that defendant
was of unsound mind and stating that defendant and counsel had no knowl-
edge of the evidence during the trial, cannot be considered on appeal.
Anderson v. State, 409.
13. Where the record showed on appeal that there was no communication
between the sheriff of another county and the jury during the short time
he was in charge of them, etc., there was no reversible error. Cook v. State,
14. Where it nowhere appeared in the record that either the requested
charges or the objection to the charge of the court were filed before the main
charge was read to the jury, or were ever called to the court's attention, they
cannot be considered on appeal. Kosarek v. State, 457.
15. Where the requested charge with reference to treating the disease and
asking compensation thereof was substantially given in the main charge, there
was no reversible error in refusing same. Maier v. State, 459.
16. Where it is made to appear by an admission of the assistant Attorney
General, and filed herein, that since the appeal herein was perfected the
appellant duly appeared before said grand jury and gave testimony and there-
by purged himself of contempt, the appeal is dismissed on State's motion.
Ex Parte Green, 601.
17. Where a statement of facts is not filed within the 90 days, it cannot be
considered on appeal, and where the record shows that there was ample
time to have authenticated the document and file the same, the same cannot be
considered here, as it is not within the province of this court to arbitrarily
extended the time within which the law permits the statement of facts to be
filed. Following Riojas v. State, 36 Texas Crim. Rep., 182, and other cases.
Vickers v. State, 609.
18. Where no exception was taken to the charge of the court as given for
failure to incorporate therein the defensive theory as to the innocent acts of
the defendant, the same could not be considered on appeal, although such
matter should have been presented by the court. Crispi v. State, 621.
19. Where the bill of exceptions with reference to the question of evidence
that defendant was under arrest, etc., and that his statement was not
admissible, was in the form of question and answer, the same cannot be con-
sidered on appeal, and while it may sometimes be necessary for the trial
judge to direct the incorporation of questions and answers for the aid of this
court, yet, in the first instance, they should not be presented in this form.
Following Jetty v. State, 90 Texas Crim. Rep., 346; recently decided, and other
cases. McDaniel v. State, 636.
Practice on Appeal-Continued
20. In the absence of a statement of facts and a bill of exceptions, there
being a sufficient indictment and charge of the court, the judgment must be
affirmed. Lynch v. State, 648.
Predicate. See Dying Declaration.
Prejudice in Change of Venue. See Change of Venue, 1, 2; Rule Stated, 3.
Where in the instant case the testimony of all the witnesses was to the
effect that the prejudice contemplated by the statute existed and permeated
the county of the prosecution, and which was created by the circulation of
the newspapers containing certain derogatory statements concerning the de-
fendant, growing out of his acquittal in another case, etc., the venue should
have been changed; especially where the verdict against the defendant was
for a felony and imprisonment for 10 years in the penitentiary, and that
of his companion, against whom there was no such prejudice was only that
of a misdemeanor. Cox v. State, 106.
Presumption. See Deadly Weapon, 5.
Presumption of Innocence.
Where the court had already told the jury, in his main charge that de-
fendant is presumed to be innocent until his guilt is established by legal and
competent evidence beyond a reasonable doubt, there was no error.in refusing
requested charges on the same subject. Parrocini v. State, 320.
Upon trial of wife neglect, etc., there was no error in the court's charge
in submitting Article 640-c, Vernon's C. C., providing that the proof of
neglect or refusal to provide for the support and maintenance of such wife,
etc., shall be prima facie evidence that such neglect or refusal is wilful, and the
same was not a charge on the weight of the evidence. Following Floeck v.
State, 34 Texas Crim. Rep., 314. O'Brien v. State, 276.
Principal. See Confessions, 5; Rule Stated, 1.
1. Where, upon trial of murder, the court correctly charged upon the law
of principals, and correctly refused the requested charges, to the effect that
if one who knowingly engages with others in an unlawful enterprise having
for its object the death or serious bodily injury of another he must have
intended that his own hand, should strike the fatal blow, there was no re-
versible error. Monday v. State, 8.
2. Upon trial for theft, in which defendant was charged as an accomplice
with several others who were principals, there was no error in admitting
testimony showing the negotiation that took place between the party injured
and defendant's principals, in his absence, at it was essential that the state
prove the guilt of the principal offenders named in the indictment. Follow-
ing Cox v. State, 8 Texas Crim. App., 256, and other cases. Gerber v. St.te, 37.
3. Where the court's charge on principals amply protected the defendant's
rights upon trial for murder, there was no reversible error. Havs v. State, 355.
4. Where the indictment contained two counts, one charging appellant as
principal in the murder, and the other charging him as an accomplice, and
both counts being submitted to the jury when the case was closed, there
was no error in overruling defendant's motion for an instructed verdict as
to the first count, inasmuch as the verdict found defendant "not guilty"
under such count. Espalin v. State, 625.
Where the bill of exceptions did not point out to what statement of the
private prosecutor objection was taken, this court cannot consider the same.
Donohue v. State, 541.
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