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be had on the unsupported confession.-Owens, proper question of self-defense, instructions on v. State, 179 S. W. 1014.

the same question requested by the defendant

were properly refused. Thompson v. State, 179 (G) Necessity, Regaisites, and Sufficiency S. W. 561. of Instructions.

om 829 (Tex.Cr. App.) Where a charge request775 (Tex.Cr.App.) Charge on alibi instructed by accused and covering the issue is given, ing jury to acquit upon reasonable doubt of pres- other special charges requested by accused on ence of defendant at time and place of offense same issue are properly refused.-Davis v. State, held good.—McAninch v. State, 179 S. W. 719. 179 S. W. 702. m778 (Ark.) On a trial for homicide, it was 829 (Tex.Cr.App.) In prosecution for larnot error to charge in the language of Kirby's ceny, held, in view of the charge as to defendDig. 8 1765, relative to the burden of proving ant's explanation of his possession of the propmitigating circumstances.—Johnson v. State, erty, that it was unnecessary to give requested 179 S. W. 361.

special charges on that issue.-Rice v. State, Om778 (Tex.Cr.App.) Instruction that burden 179 S. W. 876. of proof is on state 'held usually sufficient, ur- m 829 (Tex.Cr. App.) The refusal of requested less some peculiarity requires the further in-charges covered by those given is not error.struction that the burden never shifts to de- Edwards v. State, 179 S. W. 1163. fendant.--Hawkins v. State, 179 S. W. 448.

Om 829 (Tex.Cr.App.) Where the court gave a Om780 (Tex.Cr.App.) The fact that officers went to one charged with practicing medicine proper charge on an issue, it was not necessary unlawfully and procured him to treat them does Burley v. State, 179 S. W. 1170.

to give a special requested charge thereon.not make them his accomplices so as to require 834 (Ark.) The court is not bound to give a charge on accomplices' testimony.—Hyroop instructions exactly in the requested words, if v. State, 179 S. W. 878.

the instruction given is correct and complete. 780 (Tex.Cr.App.) If testimony suggested -Sheppard v. State, 179 S. W. 168. that the state's witnesses were accomplices, em834 (Ark.) A requested charge that accusheld, that the court should have charged the ed's alleged confession should be received with provisions of Code Cr. Proc. 1911, art. 801, caution being on the weight of evidence, deas to the corroboration of accomplices.-Bagley fendant cannot complain of a modification, v. State, 179 S. W. 1167.

charging that conviction could not be had on Om782 (Ark.) In prosecution for assault with the unsupported confession.-Owens v. State, intent to kilí, held not error to refuse to in- 179 S. W. 1014. struct that, where the facts were susceptible of two interpretations, that of innocence must (1) Objections to Instructions or Refusal prevail.-Deshazo v. State, 179 S. W. 1012.

Thereof, and Exceptions. 792 (Tex.Cr.App.) Instruction in prosecution 844 (Tex.Cr.App.) Objection to a charge for cattle theft held sufficient on the distinction that it did not directly submit the issues raised between principal and accomplice, and the ne- by the evidence, and did not instruct on certain cessity of acquittal if accused was the latter.- subjects, held not to point

out specific errors, as McAninch v. State, 179 S. W. 719.

required by statute. -McDonald v. State, 179 Om 801 (Tex.Cr.App.) Reading charge before S. W. 880. argument held not mandatory in misdemeanor cases.--Robison v. State, 179 S. W. 1157.

(J) Custody, Conduct, and Deliberations

of Jury. Om814 (Ark.) In a prosecution for assault with intent to rape, refusal to give instructions Cw854 (Tenn.) In a capital case, it constidistinguishing between acts of preparation and tutes reversible error to permit the jury to go acts constituting the beginning of the attempt at large pending the trial, though accused conto commit rape held properly refused, where not sents, this depriving him of his constitutional required by the issues.-Tyra v. State, 179 S. guaranties of fair and impartial trial by jury. W. 167.

-Lee v. State, 179 S. W. 145. ww814 (Tex.Cr.App.) Where there were two ww 854 (Tenn.) Notwithstanding accused's concounts charging cattle theft, one charging own- sent to separation of the jury, a conviction of ership in husband, and one in wife, charge on felony cannot be upheld under Const. art. 1, $ question of theft of cow as property of husband 9.-Long v. State, 179 S. W. 315. held good.--McAninch v. State, 179 S. W. 719. Cw866 (Tex.Cr. App.) Conduct of jury in pros

822 (Tex.Cr. App.) Objection that charge in ecy tion for theft, in determining term of improsecution for carrying pistol was contradic- prisonment by totaling the amount desired by tory cannot prevail, when charge, as a whole, all and dividing by their number, the result was clear and could not mislead' jury.-Davis not being followed ultimately, but a different v. State, 179 S. W. 702.

term of imprisonment being agreed unon. held

to present no error.-Luna v. State, 179 S. W. (H) Requests for Instructions.

1152. 829 (Ark.) In prosecution for assault with

XIII. MOTIONS FOR NEW TRIAL intent to kill, instruction that indictment raised

AND IN ARREST. no presumption of guilt held properly refused, in view of other instructions given.-Deshazo v. 922 (Tex.Cr.App.) Where defendant failed State, 179 S. W. 1012.

to except to the charge in a misdemeanor trial In prosecution for assault with intent to kill, he could not raise objection on motion for new held not error to refuse to instruct as to rea- trial.-Robison v. State, 179 S. W. 1157. sonable doubt, where the law on such subject 925 (Tex.Cr.Anp.) That jurors during the was covered by instructions given.-Id.

trial made comments on accused's. conduct at In prosecution for assault with intent to kill, the time held not ground for new trial, in the it was not error to refuse to instruct that words absence of any showing that accused was not of threatening character might reduce the crime guilty of such conduct.-Word v. State, 179 S. to aggravated assault, or justify an aggravated W. 1175. assault in view of other instructions given. 928 (Tex.Cr.App.) Statement of juror, be-Id.

fore vote was taken, that he knew. prosecuting Om829 (Tex.Cr.App.) On a trial for theft, a witness would not swear another man into the requested instruction as to defendant's posses- penitentiary, held not to justify new trial.sion of the stolen property and his explanation Wilburton v. State, 179 S. W. 1169. held sufficiently presented by instructions given. Om938 (Tex.Cr. App.) In a prosecution for se-Whitfield v. State, 179 S. W. 558.

duction motion for new trial for newly discovOm 829 (Tex.Cr. App.) Where in a prosecution ered evidence, held improperly overruled.---Long

1231

INDEX-DIGEST

Criminal Law

945 (Tex.Cr. App.) New trial, after convic- mission of special charges before the charge was tion of assault to rane a child under 15 years, read.-Taylor v. State, 179 S. W. 1161. will not be granted for newly discovered testi-O 1043 (Ark.) Where erroneous instruction as mony of a physician that he found no bruises to disregarding testimony of witness testifying on the child.-Mays v. State, 179 S. W. 1192. falsely to any material fact was part of a long Om949 (Tex.Cr. App.) A motion for new trial | instruction, and was not specifically called to in a prosecution for selling intoxicating liquors the attention of the trial judge, held, that held properly overruled as too vague and in there was no error.-Johnson v. State, 179 S. definite.-Alverez v. State, 179 S. W. 714. W. 361. Om954 (Tex.Cr. App.) In a motion for a new 1051 (Tex.Cr.App.) Under Code Cr. Proc. trial, appellant should specifically point out the 1911, art. 938, the court on appeal will not conreasons for a new trial, so as to give the court sider question of venue not raised in the case a chance to correct its own errors, if any.-- and no bill of exception taken thereto.-Park v. Jackson v. State, 179 S. W. 711.

State, 179 S. W. 1152. em 956 (Tex.Cr.App.) A new trial sought on Om 1054 (Tex.Cr.App.) The court on appeal the ground of newly discovered evidence held cannot review the admission of evidence, alproperly refused, accused not making a suffi- leged as grounds for a new trial, to which no cient showing of diligence.-Ellis v. State, 179 exceptions were preserved on the trial below.S. W. 1163.

Munoz v. State, 179 S. W. 566. ww956 (Tex.Cr. App.) That a juror stated that an 1056 (Tex.Cr.App.) Where no exceptions accused would have been acquitted but for facts were reserved to the court's charge when subinjected into the case as to his shooting of a mitted to defendant's counsel for inspection, the third person, unaccompanied by any affidavit, refusal of special charges requested by defendheld not ground for new trial.- Word v. State, ant was proper.-Galvan v. State, 179 S. W. 179 S. W. 1175.

875. Om956 (Tex.Cr.App.) Where defendant had om 1064 (Tex.Cr.App.) All alleged errors must two days after verdict in which to secure the be contained in the motion for a new trial or affidavits of absent witnesses on motion for new in the bills of exceptions filed in the trial court, trial, it was not an abuse of discretion to re-especially in view of rule 101a for district and fuse the continuance, where such affidavits county courts (159 S. W. xi).–Vinson v. State, were not produced.-May v. State, 179 S. W. 179 S. W. 574. 1176.

A ground in a motion for a new trial, alleging Om 957 (Tex.Cr.App.) A conviction cannot be that the court erred in its charge to the jury, impeached by affidavits of the jury.-Chapman v. but not attempting to point out any error, is State, 179 S. W. 570.

too general to receive consideration.-Id. XIV. JUDGMENT, SENTENCE, AND (C) Proceedings for Transfer of Cause, FINAL COMMITMENT.

and Effect Thereof. Om982 (Tex.Cr.App.) The state cross-ex

Om 1069 (Tex.Cr.App.) No appeal can be taken amination of accused filing plea for suspension in criminal cases until sentence is pronounced, of sentence may show that he had been ar- since sentence is the final judgment.-Dodd v. rested for various crimes. Backus v. State. State, 179 S. W. 564. 179 S. W. 1166.

Om 1069 (Tex.Cr.App.) An appeal does not lie

until sentence has been pronounced.—WilburXV. APPEAL AND ERROR, AND

ton v. State, 179 S. W. 1169. CERTIORARI. (A) Form of Remedy, Jurisdiction, and (D) Record and Proceeding's Not in RecRight of Review.

ord. Om 1023 (Tex.Cr. App.) Pronouncement of sen-m1090 (Tex.Cr.App.) Where there is neither tence by the judge in vacation is not authorized, a statement of facts nor any bill of exceptions, so that sentence so pronounced is not a final nothing is presented which the Court of Crimijudgment on which an appeal may be rested.- nal Appeals can review.-Calvert v. State, 179 Dodd v. State, 179 S. W. 564.

S. W. 98. Om 1024 (Ky.) The commonwealth_can appeal on 1090 (Tex.Cr.App.) Where there is neither in criminal cases under Cr. Code Prac. $ 337, statement of facts nor bill of exceptions, and only from decisions of the court adverse to it. the only ground of motion for new trial was that Commonwealth v. Brand, 179 S. W. 844. the verdict was contrary to the law and eviOm 1026 (Ky.) Defendant has an appeal under dence, the ruling thereon cannot be reviewed. Cr. Code Prac. $$ 335, 337, from final judgment Lockhart v. State, 179 S. W. 556. of conviction, but he cannot appeal before judg- Om 1090 (Tex.Cr. App.) Where the record on apment and afterwards also, or prosecute a cross- peal contains neither statement of facts nor bills appeal upon an appeal by the commonwealth.- of exceptions, the ruling on a motion for new Commonwealth v. Brand, 179 S. W. 844. trial is not reviewable on appeal.-Lawson v.

State, 179 S. W. 557. (B) Presentation and Reservation in Low- cm 1090 (Tex.Cr.App.) Complaints in the moer Court of Grounds of Keview.

tion for new trial of rulings on evidence, as to Om 1028 (Tex.Cr.App.) The court of criminal which no bills of exceptions appear in the recappeals can pass only upon such questions as ord, cannot be considered on appeal.-Rea v. are properly raised in the trial court.-Davis v. State, 179 S. W. 706. State, 179 S. W. 702.

Om 1090 (Tex.Cr.App.) The impropriety of cm 1038 (Tex.Cr.App.) Statutory provision as overruling a motion for continuance cannot be to objections to charge and failure to charge reviewed without a bill of exceptions.-Smith v. held one the Legislature had a right to enact, State, 179 S. W. 1165. and one which the courts can neither ignore norow 1090 (Tex.Cr.App.) Şufficiency of evidence emasculate.- Vinson v. State, 179 S. W. 574.

L’nder Code Cr. Proc. art. 743, defendant, in cannot be reviewed in absence of statement of the absence of objection or request for special facts or bill of exceptions.-Gragara v. State, charge, cannot complain of court's failure to 179 S. W. 1185. charge as to contention not made at the trial. Cm 1090 (Tex.Cr. App.) Insufficiency of the evi-Id.

dence, asserted as ground for a new trial, held Om 1038 (Tex.Cr.App.) Error in refusing charg- not reviewable, in the absence of a bill of exes held not shown, where transcript did not ceptions or statement of facts.-Ridgeway v. show exception to charge and request for sub-i State, 179 S. W. 1185.

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Om 1091 (Tex.Cr. App.) A bill of exceptions Om 1097 (Tex.Cr. App.) The sufficiency of the showing merely the substance of evidence ob- evidence to sustain a conviction cannot be conjected to, but failing to show when the objec- sidered without a statement of facts.-Smith v. tions were made or what the other evidence on State, 179 S. W. 1165. the subject was, is insufficient under White's own 1097 (Tex.Cr.App.) The contention of apAnn. Code Cr. Proc. $8 857, 1123.–Tinker v. pellant that evidence fails to support the conState, 179 S. W. 572. A bill of exceptions to the conduct of a prose- statement of facts.-Augustine v. State, 179 S.

viction cannot be reviewed in the absence of a cuting attorney which states only appellant's W. 1185. conclusions, and not facts, does not show re

of

Om 1098 (Tex.Cr.App.) Statement versible error.-Id.

facts,

made up of questions and answers, held not to Om 1091 (Tex.Cr.App.) Under Code Cr. Proc. be considered.-Hawkins v. State, 179 S. W. 1911, art. 938, a bill of exceptions complaining 448. of refusal to direct acquittal on ground that am 1099 (Tex.Cr. App.) After conviction for a venue had not been proven presents no question. am. 1099 (Tex.Cr.App.) After conviction for a -Fondren v. State, 179 S. W. 1170.

misdemeanor, a statement of facts not filed unem 1092 (Ark.) Where accused failed to file his court will be stricken.-Celo v. State, 179 S. W.

til 81 days after adjournment of the county bill of exceptions within the time granted there- 99. for, no question on the admission of evidence or the instructions is presented on appeal.-Riley of facts was filed after adjournment of court

Om 1099 (Tex.Cr.App.) Where the statement v. State, 179 S. W. 661.

without an order for that purpose, such papers Om 1092 (Tex.Cr.App.) Where the bills of ex- will not be considered. --Van Dyke v. State, 179 ceptions were filed after adjournment of court S. W. 111. without an order for that purpose, such pa Code Cr. Proc. 1911, art. 845, does not aupers will not be considered.- Van Dyke v.

Dyke v. thorize statements of fact to be filed after adState, 179 S. W. 111.

journment of court, whether there was an order Code Cr. Proc. 1911, art. 845, does not au- entered to that effect or not. Id. thorize statement of facts and bills of excep

Where an order of the trial court authortions to be filed after adjournment of court, izing the filing of statement of facts after adwhether there was an order entered to that ef-journment was not carried forward into the fect or not.-Id.

minutes of the court, it does not authorize filWhere an order of the trial court authorizing ing after adjournment.-Id. the filing of bills of exceptions after adjourn 1099 (Tex.Cr.App.) Statement of facts, apment was not carried forward into the minutes of the court, it does not authorize filing after proved and filed about 75 days after the term

of court at which accused was tried had adadjournment.-Id.

journed, cannot be considered.-Martin v. Scate, Om 1092 (Tex.Cr.App.) Bills of exceptions, ap- 179 S. W. 121. proved and filed about 75 days after the term cm 1099 (Tex.Cr.App.) Where the statement of of court at which accused was tried had ad-facts fails to show its presentment or approval journed, cannot be considered.-Martin v. State, below, it cannot be considered.-Dorris v. State, 179 S. W. 121.

179 S. W. 718. Cm 1092 (Tex.Cr.App.) Bills of exceptions, filed m1099 (Tex.Cr.App.) Statement of facts, filfor the purpose, will not be considered.-Luna for the purpose, will not be considered.—Luna for the purpose, will not be considered.-Luna ed after adjournment, without an order entered v. State, 179 S. W. 1152.

v. State, 179 S. W. 1152. Om 1092 (Tex.Cr.App.) Allowance of bill of exceptions to remarks by county attorney not ex- C 1099 (Tex.Cr. App.) Alleged newly discovcepted to or called to the court's attention until cred evidence and misconduct of jury and counthe motion for a new trial, and denied by the ty attorney as to which evidence was heard on county attorney to have been made, held proper- motion for new trial held not reviewable withly refused.-Taylor v. State, 179 Ś. W. 1161.

out a statement of facts filed during term time. Om 1092 Tex.Cr.App.) Bills of exception can

-Taylor v. State, 179 S. W. 1161. not be considered where the trial court refused On 1099 (Tex.Cr. App.) Court on appeal from expressly to approve them.—Backus v. State, county court cannot consider statement of facts 179 S. W. 1166.

filed after adjournment of the term, in absence Iww.1092 (Tex.Cr.App.) Court on appeal from of order, allowing filing thereof.-Williams v. county court cannot consider bills of exception -i filed after adjournment of the term, in absence on 1099 (Tex.Cr.App.) Statement of facts filed of order allowing filing thereof. Williams v. within 90 days after sentence pronounced at State, 179 S. W. 1167.

term subsequent to that at which accused was Eww1092 (Tex.Cr.App.) Bill of exceptions, filed convicted hcld filed in time.-Wilburton v. State, more than 20 days after adjournment of court, 179 S. W. 1169. held not to be considered. -Ridgeway v. State, cm 1099 (Tex.Cr.App.) Statement of facts, fil179 S. W. 1185.

ed more than 20 days after adjournment of Om 1092 (Tex.Cr. App.) A so-called “Appellant's court, held not to be considered.–Ridgeway v. Exceptions to the Charge of the Court." not State, 179 S. W. 1185. verified by the trial judge, or shown to have m 1102 (Tex.Cr.App.) Where there was no orbeen presented to him for his action before the der in the record authorizing a statement of trial was concluded, cannot be considered.- facts to be filed after adjournment of county Grisham v. State, 179 S. W. 1186.

court, a purported statement of facts must be Om 1092 (Tex.Cr.App.) Where term of court ad- stricken.-McGee v. State, 179 S. W. 1165. journed on May 15th, bills of exceptions filed 1102 (Tex.Cr.App.) A statement of facts filJuly 29th and 30th held to be stricken and not ed more than 20 days after the adjournment of considered.-Green v. State, 179 S. W. 1191.

the court will be stricken on motion.—Lawson Om 1097 (Tex.Cr.App.) Without statement of v. State, 179 S. W. 1186. facts, the grounds of a motion for new trial re- cm 1102 (Tex.Cr.App.) Where term of court adlating to the insufficiency of the evidence, to the journed on May 15th, statement of facts filed improper conduct of counsel, and to the erro- July 29th held to be stricken.-Green v. State, neous admission of evidence, cannot be reviewed. 179 S. W. 1191. -Dixon v. State, 179 S. W. 561.

Cm II11 (Tex.Cr.App.) Where a bill of excepOm 1097 (Tex.Cr.App.) Error in refusing spe- tions as qualified by the court and a bystander's cial charges in criminal case held not reviewa- bill are filed, the court must consider the quesble, in absence of a statement of facts.-Dorris tions raised by bystander's bill.—Word v. State,

1233

INDEX-DIGEST

Criminal Law

Om 1114 (Tex.Cr.App.) In absence of bills of, will be denied where the statement is in no way exception, complaints as to charge, and re- verified.—Robertson v. State, 179 S. W. 106. quests for special charges, the only question on appeal from a conviction of crime was the suf

(G) Review. ficiency of the evidence.—Looper v. State, 179 cm 1134 (Tex.Cr.App.) Where the only quesS. W. 110.

tion properly presented by the motion for new Om 1114 (Tex.Cr.App.) Where the record on trial was the alleged insufficiency of the eviappeal contains no statement of facts, bill of dence and the only bill of exceptions was to the exceptions, or motion for new trial, no question overruling of the motion, the sole question for is presented which can be reviewed.-Garza v. review is the insufficiency of the evidence.State, 179 S. W. 556.

Grubbs v. State, 179 S. W. 718. Om 19 (Tex.Cr.App.) Prosecuting attorney's Om 1134 (Tex.Cr.App.) Where no exceptions allusion to the negro race in harsh and bitter were reserved to the introduction of any testiterms held not to require a reversal, in the ab- mony, nor to the charge, and no special charge sence of a proper statement of facts.—Hawkins was requested, the only question presented for v. State, 179 S. W. 448.

review was the sufficiency of the testimony.w 119 (Tex.Cr.App.) A bill of exceptions, Richardson v. State, 179os. W. 1186. complaining of a remark of the state's attor- en 1137 (Tex.Cr. App.) Where the court, on deney, held not to present reversible error.–Park fendant's request, charges that his failure to v. State, 179 S. W. 1152.

testify shall not be taken as a circumstance Om 1120 (Tex.Cr.App.) Where the record fails against him, defendant cannot show error thereto include questions which the court rules call in.-Munoz v. State, 179 S. W. 566. for opinions of witnesses, and to which ruling am 1144 (Tex.Cr.App.) Where the record omits the defendant excepts, the ruling must be taken evidence on the question of qualification of juas correct, and no question is presented for re- rors, the ruling on a motion to discharge the juview.-Rea v. State, 179 S. W. 706.

ry for want of qualifications must be presumed Om 1120 (Tex.Cr.App.) A bill of exceptions, correct. --Thompson v. State, 179 S. W. 561. complaining of the refusal to strike out the tes- Om | 148 (Ark.) In absence of proof of prejutimony of a witness, held not to present rever- dice, refusal of trial court to grant defendant's sible error, where the testimony of the witness motion, under section 2350, Kirby's Dig., to diswas not shown.-Park v. State, 179 S. W. 1152. charge sheriff and the venire summoned by him Om 1121 (Tex.Cr.App.) The court, on appeal for prejudice, was not an abuse of discretion.from a conviction of violating the local option Oliver v. State, 179 S. W. 366. law, in the absence of evidence on the point om 151 (Ark.) The trial court has a large cannot consider whether the option election discretion in granting or refusing continuances, was invalid.-Van Dyke v. State, 179 S. W. and, unless there has been a manifest abuse 111.

of its discretion in the denial of a continuance, Om 1121 (Tex.Cr.App.) Defendant's bill of ex- its action will not be reversed.-Carmen v. ceptions to the denial of a directed acquittal on State, 179 S. W. 133. the ground that venue was not shown, presents en 1156 (Tex.Cr.App.) Denial of a new trial on no question for review, where the bill does not the ground of newly discovered evidence will contain the evidence on that point.—Thompson v. not be disturbed, unless it appears that the State, 179 S. W. 561.

trial court abused its discretion, to defendant's ww1124 (Tex.Cr. App.) Where there was no prejudice.-McDonald v. State, 179 S. W. 880. bill of exceptions or statement of facts or verification of the testimony set out in motion for Emo 159 (Ark.) In testing the sufficiency of

appeal to uphold the verdict, the new trial based on insufficiency of the evidence, evidence on held that nothing was presented for review.- only necessity is that there be some substantial Besenta v. State, 179 S. W. 1185.

evidence upon which to base it.-McLaughlin

v. Benson, 179 S. W. 326. om 1128 (Tex.Cr. App.) Court on appeal cannot consider an ex parte affidavit as to disqualifica-1159 (Tex.Cr. App.) A conviction will not tion of a juror for bias, made after the term at be reversed solely on the ground of the insuffiwhich the verdict was rendered, but is confined ciency of the evidence, if the state's evidence to matters which are a part of the record in is worthy of credit, and if true supports the the trial court.-Rea v. State, 179 S. W. 706.

verdict.-Mitchell v. State, 179 S. W. 116. mm 1128 (Tex.Cr.App.) Affidavit of juror, that om 1159 (Tex.Cr.App.) Where there is a conjury had considered the fact that defendant did flict in the evidence which sustains the verdict, not testify, which was not attached to nor made the court on appeal will not set the verdict a portion of nor an exhibit to the motion for aside.-Tinker v. State, 179 S. W. 572. new trial, cannot be considered.-Ornelas v. Om 1159 (Tex.Cr.App.) Where a direct conflict State, 179 S. W. 717.

in the testimony has been decided adversely to

the accused, the judgment will not ordinarily (E) Assignment of Errors and Briefs.

be reversed.-Grant v. State, 179 S. W. 871. em 1129 (Tex.Cr.App.) Assignments of error Om 1159 Tex.Cr.App.) Where evidence

was filed in vacation have no place in a transcript sufficient to sustain the verdict, whether defendin a criminal case, as the motion for a new trial ant or the witnesses for the state were to be alone will be looked to.-Vinson v. State, 179 S. believed was a matter for the jury and the trial W. 574.

court alone.-Taylor v. State, 179 S. W. 1161. Cum 1129 (Tex.Cr.App.) Assignments of error, em 1 159 (Tex.Cr.App.) A conviction on confiled after the term at which appellant was tried ficting testimony and sustained by testimony has adjourned, have no place in the record. will not be disturbed.-Wilburton v. State, 179 Jackson v. State, 179 S. W. 711.

S. W. 1169. (F) Dismissal, Hearing and Rehearing. examination of one jointly indicted with ac

Om 1163 (Ark.) Admission of question on crossOm 1131 (Tex.Cr.App.) Where, since conviction cused as to whether his brother had not been and pending appeal, accused escaped from cus-charged with killing and burning a woman held tody, the appeal will be dismissed.-Acosta v. presumptively prejudicial.-Counts v. State, 179 State, 179 S. W. 870.

S.. W. 662. Om 1133 (Tex.Cr.App.) A motion for rehear-Om I 166 (Tex.Cr.App.) The denial of a contining, based upon statements that apnellant was uance because of the absence of witnesses whose deprived of a statement of facts and bill of ex- presence was secured presents no error.-Galceptions through the fault of the trial judge,' van v. State, 179 S. W. 875.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

Om 11661/2 (Tex.Cr.App.) Remark of the court

CROPS. in ruling on evidence held not reversible error, where the court, at the request of accused, di- See Constitutional Law, 240, 296; Crimirected the jury not to consider the question or nal Law, On 1026. answer.-Word v. State, 179 S. W. 1175. Om 1169 (Tex.Cr.App.). Although it is error to

CROSS-EXAMINATION.
admit oral evidence that a certain person in- See Witnesses, 269–280, 330.
sured burned property, and at the same time
exclude the policy of insurance, in showing CRUEL AND UNUSUAL PUNISHMENT.
ownership, the error is harmless, where other
evidence showed ownership.-Tinker v. State, See Criminal Law, em 1213.
179 S. W. 572.
um 1 169 (Tex.Cr.App.) Defendant's exception

CRUELTY.
to a ruling admitting évidence in his favor can-
not be cunsidered on appeal.- Rea v. State, 179 See Divorce, 130.
S. W. 706.

CURTESY.
Om 1169 (Tex.Cr.App.) Admission of testimony
based on what witness was told by G. held on 12 (Ark.) Where defendants bought plain-
not reversible error, where G. testified to the tiff's estate by the curtesy, without investigating
same facts without contradiction.--Southall v. whether taxes were paid, and there were no mis-
State, 179 S. W. 872.

representations they would not be relieved of
Om 1169 (Tex.Cr.App.) Admission of evidence payment, on the ground the estate was forfeited
of propositions of defendant in seduction to wit- for nonpayment of taxes under Kirby's Dig. 8
ness was harmless, where it was stricken out, 7132.-Ward v. Ward, 179 S. W. 495.
and the jury instructed to disregard it; the
jury having assessed the lowest punishment.-

CUSTOMS AND USAGES.
McDonald v. State, 179 S. W. 880.

Where proper objection was not made till aft-See Master and Servant, em 118.
er witness had testified to part of the contents Our 4 (Tex.Civ.App.) Custom or usage to en-
of a letter, and was then sustained, there was large scope of agent's authority must exist long
no error; the court having previously instruct- enough to become generally known so as to
ed that, under such circumstances, testimony warrant presumption of silent inclusion by prin-
should not be considered.-Id.

cipal.-Holmes v. Tyner, 179 S. W. 887.
Erroneous admission of testimony is not
ground for reversal; the same fact having been

DAMAGES.
testified to by another, without objection.-Id.
ww1170 (Tex.Cr.App.) Where, on trial for cat- See, Appeal and Error, ew1004; Breach of
tle theft, a state's witness confessed that he was

Marriage Promise, m29; Carriers, Om319,

382; Death, 91-99; False Imprisonment, a thief and had aided in the theft, exclusion of testimony on cross-examination of his attempt

35, 36; Landlord and Tenant, 129;

Libel and Slander, Om120; Malicious Proseto get a third person to aid in stealing cattle

cution, 68; Master and Servant, 41; held not prejudicial, where he had also testified to such fact on the direct.-Durley v. State, 179

Municipal Corporations, @m385-404; NegliS. W. 1170.

gence, m101; New Trial, Om75, 76; Tele

graphs and Telephones, m 68. Om I 1701/2 (Tex.Cr.App.) That the court permitted the state to disqualify accused's witness III. GROUNDS AND SUBJECTS OF under Code Cr. Proc. 1911, arts. 791, 792, on COMPENSATORY DAMAGES. the erroneous theory that the inquiry affected the credibility of the witness and not because

(A) Direct or Remote, Contingent, or he was indicted for the same offense, held not

Prospective Consequences or Losses. prejudicial.-Fondren v. State, 179 S. W. 1170.23 (Tex.Civ.App.) Salary of vaudeville em 1 171 (Tex.Cr.App.) Remarks of counsel for troupe as element of damage for breach of constate in prosecution for murder held improper, tract to furnish electricity for theater buildand the jụdge's refusal to warn the jury against ing held not within contemplation of parties; them prejudicial error.–Brod v. State, 179 S. it being understood that the business to be W. 1189.

conducted was that of a moving picture show. Om 1172 (Tex.Cr.App.) Where all the evidence --City of Brownsville v. Tumlinson, 179 S. W.

1107. showed that the sale, violating the prohibition

Damages not within the contemplation of parlaw, was within less than two years prior to ties held not recoverable, though defendant's the return of the indictment, the court's error representative had notice of the facts giving rise in authorizing a conviction for a sale before the to such damages before the breach of the contwo years was harmless.—Sloan v. State, 179

tract.-Id. S. W. 111.

Cm 24 (Mo.App.) In action for personal injury, (H) Determination and Disposition of held, that the jury might take into account such Cause.

future pain of body and mind, if any, as in all em 1 184 (Tex.Cr.App.) Where, contrary to the reasonable probability plaintiff would suffer as Indeterminate Sentence Law, accused was sen- a direct result of his injury.-Clark v. Dunham, tenced to a definite term of imprisonment, the 179 S. W. 795. judgment will be reformed so as to comply with Om 32 (Ky.) Future suffering held element of the law, and affirmed.-Dixon v. State, 179 S. damages in personal injury case regardless W. 561.

whether permanent impairment of earning powOm 1186 (Tenn.) Under Pub. Acts 1911, c. 32, er was pleaded or proved.-Moses v. Proctor where in spite of error the judgment is sus-Coal Co., 179 S. W. 1043. tained by the evidence, and it appears that the m40 (Mo.App.) In an action for damages for error is harmless, no new trial will be granted. the termination of an insurance agency, ex-Lauterbach v. State, 179 S. W. 130.

pected profits may be recovered, where there is

actual data upon which a reasonable estimate XVII. PUNISHMENT AND PREVEN

thereof may be based.—United States Fidelity TION OF CRIME.

& Guaranty Co. v. Ridge, 179 S. W. 791. m1213 (Ky.) Act March 17, 1904 (Laws 1904, c. 29, Ky. St. § 12010), prescribing imprison- (B) Aggravation, Mitigation, and Reduc. ment in the penitentiary for poultry theft, held

tion of loss. not in violation of Const. § 17, prohibiting cruelon 62 (Ark.) Plaintiffs' action for injury to a punishments.-Fry v. Commonwealth, 179 S. W. supply pool is not defeated by failure to re

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