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&=231 (Mo...App.) Court of Appeals held Without jurisdiction on appeal to determine the constitutionality of Rev. St. 1909, §§ 8315, 8320, so that the case would be transferred to the Supreme Court for final determination.-State V. Wild, 179 S. W. 954.
&=247 (Tex.) Rev. St. 1911, art. , 1623, , requires that the certificate of a question of law, and the record in a case in which the decision conflicts with a prior decision, be made only when the decision is in direct conflict with a prior decision, and the test is whether one would overrule the other if in the same court.Coultress v. City of San Antonio, 179 S. W. 515.
Decisions of a Court of Civil Appeals, denying a discharged policeman recovery of salary subsequently accruing, held not in conflict with other cases, so as to require certification to the Supreme Court.—Id.
3:247 (Tex.Civ.App.) The Court of Civil Appeals will not certify a case to the Supreme Court, where that court has jurisdiction to grant a writ of error.—National Live Stock Ins. Co. v. Gomillion, 179 S. W. 671.
See Arson, ©:30; Assault and Battery, & 91–97; Bail; Bigamy; Burglary; Conspiracy; Contempt; Counties, @:139; Disorderly House; Embezzlement; False Pretenses; Fences; Forgery; Fornication; Game; Habeas Corpus, 3-113; Homicide, 3:234; Husband and Wife, @:302, 313; Incest; Indictment and Information, @:137; Injunction, @:105; Intoxicating Liquors, @. 139–238; Judgment, @:559; Larceny; Libel and Slander, @:144–156; , Physicians and Surgeons, Ç26; Prostitution; Rape; Records, 3:17; Robbery; Statutes, 3:118; Vagrancy; Weapons; Witnesses.
I. NATURE AND ELEMENTS OF
Q->27 (Tex.Cr.App.) Under Acts 31st Leg. c. 35, and Pen. Code 1911, art. 597, sale of liquors in territory where prohibition was adopted prior to the act of 1909 held a misdemeanor, but in territory where prohibition was subsequently #" a felony.—Green v. State, 179 S. W. &=>36 (Ark.) The rule that one in pari delicto with defendant cannot recover for acts of the defendant does not apply to criminal actions, and the fact that the prosecuting witness was also a party to the crime will not prevent conviction of the defendant.—Lawson v. State, 179 S. W. 818
III. PARTIES TO OFFENSES.
<>59 (Tex.Cr.App.) Mere presence, without participation in the commission of an offense, will not constitute one a principal, but presence, with other circumstances, may be sufficient to show that such person was a principal.—Taylor V. State, 179 S. W. 113.
&=>84 (Ark.) Under Const. art. 7, § 40, the Legislature may abolish the jurisdiction of justices of the peace in misdemeanor cases.—State v. Woodruff, 179 S.W. 813. Laws 1915, p. 340, § 10, giving municipal courts thereby created jurisdiction over misde
meanors exclusive of justices of the peace, held not invalid under Const., art. 7, $43, authorizing such courts with “jurisdiction concurrent with justices of the peace.”—Id. Under Const. art. 7, § 43, held, that the Legislature may vest jurisdiction in municipal courts beyond the geographical limits of the municipalities.—Id. &=87 (Ark.) Justices of the peace held to have no vested right to fees and emoluments of their office, and Laws 1915, p. 340, establishing municipal courts, is not void as impairing vested rights.—State v. Woodruff, 179 S. W. 813.
V. VENUE. (B) Change of Venue.
3: I 19 (Ark.) One convicted of crime securing trial of sanity issue on writ of error coram nobis after sentence held entitled to change of venue as in other cases.—Dewein v. State, 179 S. W. 346. <>12! (Ark.). Where supporting witnesses to affidavit for change of venue in criminal case are qualified under Kirby's Dig. § 2318, the court has no discretion, and must grant the change.—Dewein v. State, 179 S. W. 346. Q: 134 (Ark.) Evidence held to support finding that supporting witnesses to an affidavit for change of venue were not credible for want of knowledge.—Dewein v. State, 179 S. W. 346. 6: 134 (Tex.Cr.App.) It is not error to allow time to file a contest to defendant's motion for a change of venue, nor to extend the time for verification when the contest is not at first sworn to.—Thompson v. State, 179 S. W. 561. A change of venue was properly denied where only one of defendant's witnesses swore he could not get a fair trial, while all the witnesses for the state, resisting the change, swore that he could.—Id. &= 135 (Ark.) For sole purpose of ascertaining their credibility, the court may examine supporting witnesses to affidavit for change of venue as to their means of knowledge and the probability of petitioner having fair trial.—Dewein v. State, 179 S. W. 346. C: 137 (Ark.) Statement of court on motion for change of venue that supporting witnesses to affidavit were reputable citizens, etc., held not finding that they were “credible,” within £ Dig. § 2318.—Dewein v. State, 179 S. )
Credibility of supporting witnesses to affidavit for change of venue, is a question largely within the discretion of the trial court.-Id.
VI. LIMITATION OF PROSECUTIONS.
3-5 147 (Tex.Cr.App.) In prosecution for violating the prohibition law, there could be a conviction only for an offense committed within two years prior to the filing of the indictment.–Sloan v. State, 179 S. W. 111.
VII. FORMER JEOPARDY.
<>170 (Tex.Cr.App.) Where an information in a former complaint charged an impossible date, a conviction could not be had under it, so that an acquittal thereunder was not available as a plea of former acquittal.-Spicer v. State, 179 S. W. 712. Q= 185 (Ark.) Trial under defective indictment resulting in discharge of jury for failure to agree, under I\irby's Dig. § 2396, held not to bar a new trial under a valid indictment.— Carmen v. State, 179 S. W. 183. Q-> 193!/2 (Tex.Cr.App.) Where defendant tried for murder was acquitted by a conviction of manslaughter, the issue of murder could not be submitted in another trial, though the court, in submitting manslaughter, might charge as to what constituted murder.—Wollintine v. State, 179 S. W. 108. Q->200 (Tex.Cr.App.) Acquittal on a charge of carrying “knucks” is immaterial, on the charge of having committed an assault with
C=369 (Ky.) Evidence of different offenses, though ordinarily incompetent, held admissible to establish identity, guilty knowledge, intent, or motive, or where they cannot be separated, or were perpetrated to conceal the crime on trial. —Richardson v. Commonwealth, 179 S. W. 458. &=371 (Ark.) Where a sheriff and his deputy had searched two persons, and were both threatened by them, on a charge of burning the barn of the sheriff the following night evidence was admissible that the deputy’s fence and corntops were burned the same night.—Shuffield v. State, 179 S. W. 650. Q->371 (Ky.) In a prosecution for embezzlement, where defendant relies upon the absence, of intent fraudulently to convert, or claims that his act was the result of oversight, accident, or mistake, evidence of other acts of embezzlement is admissible to show guilty knowledge.-Commonwealth V. Brand, 179 S.W. 844. In prosecution for crime, the commission by defendant of other criminal acts of the same nature cannot be considered as substantive testimony of defendant's guilt, but only as indicating motive and intent.—Id. <=372 (Tex.Cr.App.) In a prosecution for swindling, held proper to prove other similar transactions had about the same time.-Arnold v. State, 179 S. W. 1183. 6:374 (Ark.) On a criminal prosecution, other offenses, tending to show the intent or motive, cannot be established by hearsay.—Shuffield v. State, 179 S. W. 650. 3:376 (Ark.) The prosecution cannot introduce evidence of the bad character of accused as a cirumstance from which the jury might infer guilt, until the accused has introduced evidence of his good character.—Shuffield v. State, 179 S. W. 650.
Q->378 (Ark.) Proof of pleading guilty to stealing chickens is not admissible to rebut evidence of the good character of one accused of arson.Shuffield v. State, 179 S. W. 650. C:380 (Tex.Cr.App.) Where accused put his good character as a peaceable citizen in issue, testimony that it had been reported some 30 years before that he killed a man in another state and was a member of a gang of outlaws is too remote to be considered.—Taylor v. State, 179 S. W. 113.
(D) Materiality and £mpetency in Gene1"all
Q->396 (Mo.) In a prosecution for embezzlement by a bank cashier, where evidence had been admitted showing a general shortage in the assets of the bank, testimony by accused tending to explain the shortage was improperly excluded.—State v. Wilcox, 179 S. W. 479.
Q=>396 (Tex.Cr.App.) In prosecution for keeping house for prostitution, where defendant testified that, upon arrest for vagrancy, she had been mistreated and induced to plead guilty through misrepresentations, etc., it was proper in rebuttal to permit police officers to explain # whole matter.—Jackson v. State, 179 S. W.
(E) Best and Secondary and Demonstrative Evidence.
&=398 (Tex.Cr.App.) Witness, having lost a letter to her, could testify to its contents.—McDonald V. State, 179 S. W. 880.
6:400 (Tex.Cr.App.) Parol evidence of the contents of a circular was properly rejected, where the circular itself could be put in evidence.— Hyroop v. State, 179 S. W. 878.
&:404 (Ark.) Stolen knife held not sufficiently identified to warrant its admission in evidence in a prosecution for burglary.—Oliver v. State, 179 S. W. 366.
(F) Admissions, Declarations, and Hearstly. &=>406 (Tex.Cr.App.) Statements of defendant and of another party, made while the police officer was making an investigation, held not inadmissible as made while defendant was under arrest.—Rice v. State, 179 S. W. 876.
&=406 (Tex Cr.App.) On defendant's admission that a circular was one used by him in advertising his business as a masseur, the circular was properly admitted in evidence to show the purpose for which he held himself out.—Hyroop v. State, 179 S. W. 878.
&=406 (Tex.Cr.App.) Testimony of officer as to searching deceased's rooms for money, and defendant’s statements held admissible, even though defendant was under arrest; the money having been found by reason of her statements. –Hand v. State, 179 S. W. 1155.
6:407 (Ky.) Statement made by one to another jointly accused with him of murder, charging him with firing the shot, held competent against person so accused, where the circumstances were such that he would naturally have
Q:423 (Ark.) Where the evidence made a question for the jury as to a conspiracy between defendant and H., evidence of H.'s possession of a pistol held competent either on direct or cross examination.—Johnson v. State, 179 S. W. 361. &=>423 (Tex.Cr.App.) On trial of defendant as principal in assault committed by W., evidence as to remark by W. regarding his intention to whip the prosecuting witness, just prior to the assault, held admissible.—Southall v. State, 179 S. W. 872.
If defendant was principal in assault by W., evidence as to what W. did to the assaulted party after he ran away, pursued by W., held admissible.—Id. Q:424 (Ark.) Statement of one jointly indicted for arson with defendant held erroneously admitted because any conspiracy had been consummated when it was made.—Counts v. State, 179 S. W. 662.
&=424 (Ky.) Letter by one defendant, written after commission of crime and threatening to kill the jailer, held not admissible upon joint #-wilton v. Commonwealth, 179 S. W. 3:427 (Tex.Cr.App.) That defendant and other companions of W. followed him and party assaulted by him, and remarked that W. ought to beat such person's head off, held to strongly tend to show that defendant was a principal.— Southall v. State, 179 S.W. 872.
(H) Documentary Evidence and Exclusion of Parol Evidence There loy.
&=>447 (Tex.Cr.App.) Written employment contract held not to merge previous representations of accused so as to prevent their proof by state in prosecution for swindling.—Arnold v. State, 179 S. W. 1183.
(I) Opinion Evidence.
<>448 (Ky.) In prosecution of sheriff for embezzlement, evidence of a county attorney that he had in the exercise of his official functions determined that the tax which defendant was accused of embezzling had never been certified to him for collection was inadmissible as opinion.—Commonwealth V. Brand, 179 S. W. 844. £->448 (Tex Cr.App.) It was not error to allow a city detective to testify that the persons who had signed confession by defendant as witnesses did not hold any official position in the city or county.—Jernigan v. State, 179 S. W. 1187. G=452. (Ark.), Opinion of nonexpert witness on sanity held only admissible upon showing association with subject, opportunity for obseryation, and statement of facts upon which opinion is based.—Dewein v. State, 179 S. W. 346. C:476 (Tex.Cr.App.) Opinion evidence by a doctor, who qualified as an expert witness, as to the cause of the injuries inflicted, held properly admitted.–Chisom v. State, 179 S.W. 103. held error where there was not sufficient time in which to obtain the witness without continuance.—State v. Flick, 179 S.W. 768. <>598 (Tex.Cr.App.). In prosecution for unlawfully carrying a pistol, held, that there was no error in refusing a continuance on the ground of surprise; no diligence being shown. -Grant v. State, 179 S. W. 871. Q=598 (Tex.Cr.App.) Denial for want of dili: gence of a continuance sought for absence Of witness, who would give material testimony, held error.—Coleman v. State, 179 S.W. 1172. Q=598 (Tex.Cr.App.) A defendant indicted for seduction in November, 1913, whose trial was set for May, 1915, held not to have exercised such diligence in obtaining the presence of a witness as to make it error to refuse_a continuance.—May v. State, 179 S. W. 1176. <>608 (Ark.) Where the showing on a motion for postponement did not clearly disclose the whereabouts of the absent witness, or establish that his attendance could be procured later, the denial was not an abuse of discretion.Owens v. State, 179 S.W. 1014.
C:478 (Tex.Cr.App.) Chemist who analysed deceased's stomach held competent to express an opinion as to how much strychnine sulphate would cause a man's death.—Hand v. State, 179 S. W. 1155.
(J) Testimony of Accomplices and Code- fendants.
Q: 507 (Ky.) Person assisting in removing stolen goods from place of concealment held not an accomplice to the offense of breaking into a railroad depot from which such goods were *::Richardson v. Commonwealth, 179 S.
©:507 (Tex.Cr.App.) Under Pen. Code 1911, art. 498, a female solicited to illicit sexual intercourse, who consents without persuasion, is 'not an accomplice of the solicitor making requisite corroboration of her testimony for '''" thereon.—Denman v. State, 179 S.
<>507 (Tex.Cr.App.) Sheriff and person employed by him to detect bootleggers, and who, pursuant thereto, purchased whisky from defendant, held not accomplices in view of Pen. Code 1911, art. 602.—Bagley v. State, 179 S. W. 1167. Q->508 (Tex.Cr.App.) Where a theft is established, a conviction may be had on accomplice testimony on proof of facts and circumstances tending to connect accused with the offense.— Edwards v. State, 179 S. W. 1163. &=508 (Tex.Cr.App.) Under Code Cr. Proc. 1911, arts. 791, 792, making codefendants incompetent witnesses for each other, accused may not complain that the state proved that a witness called by him was indicted for the same offense.—Fondren v. State, 179 S. W. 1170. 3:55 10 (Ky.) Statement made by one to another jointly indicted for murder with him, charging latter with firing the shot, and testified to by third person, who overheard same, held not accomplice testimony, within Cr. Code Prac. § 241, requiring corroboration.—Wilson v. Commonwealth, 179 S. W. 237. 6:951 1 (Ark.) Unexplained possession of a portion of property recently stolen may be considered in corroboration of testimony of accomplices in a prosecution for grand larceny, although the value of the property so found does # exceed $10.—White v. State, 179 S. W.
6:55 1 I (Ark.) Evidence in corroboration of an accomplice to a burglary held insufficient, under # Dig. § 23S4.—Ernest v. State, 179 S.
<>51 1 (Tex.Cr.App.) In a prosecution for cattle theft, evidence of corroboration held sufficient to connect defendant with the offense and to justify conviction on an accomplice's testimony.—Edwards v. State, 179 S.W. 1163.
@->517 (Ky.) Where accused confessed to a witness the commission of two breakings, for one of which he was being tried, the entire confession held provable to establish his ideotity.— Richardson V. Commonwealth, 179 S. W. 458. Q+2531 (Tex.Cr.App.) A district attorney to whom a confession of crime was made held
competent to testify that it was made voluntarily after warning in accordance with Code Cr. Proc. 1911, art. 810.—Jernigan v. State, 179 S. W. 1187. C>534 (Ky.) Where accused confessed to a witness the commission of two breakings, the finding of goods stolen at each time held provable, as corroborative.—Richardson v. Commonwealth, 179 S. W. 458.
Q:2535 (Tex.Cr.App.) While the confession of an accused may be used where the corpus delicti is established, yet it is inadmissible to establish the corpus delicti.—Brice v. State, 179 S. W. 1178.
(M) Weight and Sufficiency.
C>561 (Ky.) In order to convict, the jury must have no reasonable doubt of defendant's £-commonwealth v. Brand, 179 S. W. C=570 (Ark.) Evidence on the issue of sanity held sufficient to support verdict of sanity.— Dewein v. State, 179 S. W. 346.
XI. TIME OF TRIAL AND CONTINIJANCE
C>577 (Tex.Cr.App.) Defendant’s failure to insist on a ruling on his plea of former acquittal and his motion to postpone and his announcement of immediate readiness for trial held a waiver of his right to the two days allowed to £are for trial.—Spicer v. State, 179 S. W.
<=586 (Ark.) The trial court has a large disCretion in granting or refusing continuances.— Carmen v. State, 179 S. W. 183. Q:589 (Tex.Cr.App.) Denial of continuance was not erroneous, where accused was not deprived of any testimony.—Word v. State, 179 S. W. 75. &=595 (Tex.Cr.App.) In a criminal prosecution, it Was not error to refuse a continuance, where the affidavit of the absent witness stated that he had seen the prosecuting witness intoxicated at about the time of the offense; the fact of the witness’ intoxication not rendering # incompetent.—Fletcher v. State, 179 S. W. $79. C>595 (Tex.Cr.App.) Denial of continuance because of absence of witnesses who would have testified to defendant’s whereabouts at a different time than the times when sales of liquor were claimed to have been made held not error.—Bagley v. State, 179 S. W. 1167. C:595 (Tex.Cr.App.) In a prosecution for abandonment after seduction and marriage, testimony of a witness to the chastity of prosecutrix held material, so that absence of the witness could be ground for continuance.—Coleman v. State, 179 S. W. 1172. C>596 (Ark.) The denial of a continuance on the ground of an absent witness whose testimony would be merely cumulative is not an abuse of discretion.—Owens v. State, 179 S. W. 1014. Q=596 (Tex.Cr.App.) The rule against cumulative evidence does not apply to a first application for a continuance, nor is it applied with strictness where the witnesses present are nearW 'd to accused.—Chapman v. State, 179 S. . 570.
&=608 (Tex.Cr.App.) It was not error to refuse a continuance in a prosecution for seduction, where defendant failed to produce any affidavits that the absent witnesses would testify as stated in his motion.—May v. State, 179 S. W. 1176.
XII. TRIAL. (A) Preliminary Proceedings.
<>622 (Tex.Cr.App.) Application for severance in order that codefendant, who was an important witness, might be first tried, held erroneously denied.—Dieter v. State, 179 S. W. 557.
(B) Course and Conduct of Trial in General.
&=636 (Tex.Cr.App.) Under Code : Cr. Proc. 1911, art. 646, absence of defendant, who was locked in jail, while counsel was arguing motion for instructed verdict, held to require a reversal.—Brooks v. State, 179 S. W. 447.
(C) Reception of Evidence.
Q:673 (Ky.) Where evidence of a different breaking was admitted, held, that court should have admonished jury that it could be considered only on the questions of motive and identity.—Richardson v. Commonwealth, 179 S. Q->673 (Ky.) In prosecution of sheriff for embezzling a collected tax, the court, on admission of evidence of the clerk of the county court that defendant failed to report collections, should admonish the jury that such evidence was only to £ent-commonwealth v. Brand, 179 S.
3:676 (Ark.) The court did not abuse its discretion in limiting cumulative testimony, by excluding the testimony of 10 witnesses upon certain facts, where there was nothing to show that their testimony was of special value or weight, and 9 witnesses had already testified \"", £ same facts.—Sheppard v. State, 179 S.
Q:676 (Tex.Cr.App.) Where a given fact is sufficiently shown by a number of witnesses, it is not error to exclude testimony of another witness which is merely cumulative.—Tinker v. State, 179 S. W. 572. &:678 (ICy.) Commonwealth held to have elected to try accused for one of two breakings, where its first witness testified as to accused’s possession of property stolen at the time of such breaking.—Richardson v. Commonwealth, 179 S. W. 458. <>683 (Tex.Cr.App.) In rebuttal of testimony of witness, who claimed that he, and not accused, assaulted the prosecuting witness, testimony of prosecuting witness as to how he was
dressed and that he had a lantern held permissible.—Winson v. State, 179 S. W. 574.
(E) Arguments and conduct of counsel.
3>720 (Ark.) Prosecuting attorney's statement that, no doubt, defendant was given a check by his father and advised that other climes would be more healthful for him after committing a homicide, held justified by the evidence.—Yancey v. State, 179 S. W. 352.
G:720 (Ark.) Where accused and another who were traced from the place of the killing to the drug store, where they were found the next morning, asserted that they spent the night together, argument by the prosecutor that such other person participated in the crime is Warranted.—Owens v. State, 179 S. W. 1014. &=720 (Tex.Cr.App.). Prosecuting attorneys in their argument should confine themselves to legitimate deductions from the facts as they apply to the law of the case.—Hawkins v. State 179 S. W. 448. &=722 (Ark.) In prosecution for grand larceny, district attorney's closing argument, imputing a criminal intent to defendant in over insuring his house, and tending to counteract proof of his good character, held reversible error.—Miller v. State, 179 S. W. 1001. C: 724 (Tenn.) Statements of the prosecuting attorney that if one ran over and killed a child of his he would shoot him, held improper.— Lauterbach v. State, 179 S. W. 130.
&=728 (Ark.) That the prosecuting attorney made statements as to proof he would adduce, but on trial was unable to furnish it, is not ground for reversal, where the statements were in good faith, and accused requested no instructions that the jury should not consider such statements.—Owens v. State, 179 S. W. 1014.
&=730 (Mo.) That counsel expressly advised the jury not to read the instructions, but to return a verdict forthwith, was cured by the direction of the court that the jury pay no attention thereto.—State v. Wilcox, 179 S. W. 479.
Q=730 (Tex.Cr.App.) Where defendant had not put his character in issue, remark of county attorney, that he did not know whether defendant had been previously charged with an offense, presented no error where objection was sustained with an instruction not to consider it. —Rice v. State, 179 S.W. 876.
Q:730 (Tex.Cr.App.) Action of state's attorney, in asking accused if he had not been convicted of crime, held not reversible, where the court, sustained an objection to , the question and directed the jury not to consider it.—Park v. State, 179 S. W. 1152.
(F) Province of Court and Jury in Genera1.
&=737 (Tex.Cr.App.) Under the evidence and defendant's admission at the time stolen property was taken from his person, held, that there was no question of venue in the case.—Whitfield v. State, 179 S. W. 558.
Q:741 (Ark.) Whether form of insanity is such as to preclude discovery by a nonexpert held question of fact for the jury on the issue of defendant’s sanity at the trial for the crime.— Dewein V. State, 179 S. W. 346.
Q->762 (Tex.Cr.App.) An instruction that appellant “stands charged by indictment with the offense of the murder of S. G., alleged to have been committed by him,” does not suggest to the jury the opinion of the court that the defend# was guilty.—Munoz v. State, 179 S. W. 566.
G+763, 764 (Ark.) A charge that accused’s alleged confession should be received with caution is on the weight of the evidence, and he cannot complain of a modification, where the jury were informed that conviction could not