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dy, which is not sworn to and which fails to portunity to obtain the same by reason of the give the names of the witnesses and what he fact that said new witnesses live at such a disexpects to prove by them, was properly over- tance from where this defendant has been kept ruled as being too vague and indefinite. in custody since the trial herein, that it has

[Ed. Note. For other cases, see Criminal been impossible for him to secure said affidaLaw, Cent. Dig. 88 2337, 2339-2344; Dec. Dig. vits." 949.]

This motion is not sworn to by appellant, Appeal from District Court, Atascosa nor any other person. It will be noticed he County; F. G. Chambliss, Judge.

does not give the name of the witness or Chon Alverez was convicted of selling in- witnesses, nor what he expects to prove by toxicating liquors in prohibition territory, the witness or witnesses. Under such cirand he appeals. Affirmed.

cumstances, there was no error in overruling C. C. McDonald, Asst. Atty. Gen., for the this ground of the motion for a new trial.

It was too vague and indefinite. State.

The judgment is affirmed. HARPER, J. Appellant was convicted of the offense of selling intoxicating liquors in prohibition territory, from which conviction Ex parte NEYLAND. (No. 3828.) he prosecutes this appeal.

(Court of Criminal Appeals of Texas. Oct. 27, [1] There were no exceptions reserved to

1915.) the charge of the court and no special charg- BAIL Cw52--AMOUNT OF BAIL - EXCESSIVEes requested. The only exception reserved

NESS.

The Court of Criminal Appeals will not to the introduction of testimony recites:

set aside a judgment, fixing the bail of a person “Jim Dillard, a witness for the state, being on indicted for murder at $5,000, where, though the witness stand under oath as a witness, the he produced evidence with reference to his following questions and answers ensued, it be ability to give bail, putting the maximum that ing redirect examination of said witness: 'Q. he could give at $1,000, it does not appear Jim, why did you tell me that was in January that he has attempted to give bail in the amount of this year? Mr. Brown: We object- (No fixed and failed. ruling noted.) Witness: I told you I didn't

[Ed. Note.-For other cases, see Bail, Cent. know, Q. What month was it? A. I don't Dig. & 209; Dec. Dig. Om 52.] know what month at all. Q. You know it was this year? A. Yes, sir. Q. You know it was Appeal from Criminal District Court, Harbefore you came into the room-into the grand ris County; C. W. Robinson, Judge. jury room. A. Yes, sir. Q. Was it before that time? A. Yes, sir. Mr. Brown: We object

Application by T. L. Neyland for admisto these questions trying to get this witness to sion to bail. From the judgment fixing the tell something he doesn't know. The Court: amount of bail, he appeals. Affirmed. Objection is overruled. Proceed. Mr. Brown: Note our exception. Which testimony was ob- Heidingsfelders, of Houston, for appellant. jected to by the defendant at the time it was c. C. McDonald, Asst. Atty. Gen., for the offered, upon the following grounds, to wit: The witness had testified as to his utter lack of

State. knowledge as to the month and day on which the alleged sale of liquor was consummated. DAVIDSON, J. Applicant was indicted for The course of questioning by the district attor- murder.

The facts attending the homicide ney was calculated to refresh the mind of the witness, if possible, without any recollection of are not made a part of the record, and in the facts in the mind of the witness upon which fact the record shows the testimony was not to base any hope of direct knowledge in the introduced. The record shows the indictmemory of said witness. Also, the same was ment, process, and return of the sheriff were calculated to strengthen the witness in the minds of the jury, and to prejudice them against introduced, and such documentary evidence the defendant."

as pertained to the cause after arrest. The The witness had testified that he did not judgment of the court refusing bail follows remember the day nor month. On his cross- | this. Applicant produced evidence with referexamination appellant had sought to showence to his ability to give bail, putting the that his remembrance of the occasion of the maximum that he could give at $1,000. There purchase was vague, and witness could not, is no evidence showing that he made an ator would not, fix the date. It is shown he tempt to give this amount of bond, and failwas a boy, who could neither read nor write, ed. The record shows that upon placing the and very illiterate. To bring the date with bond at $5,000 he gave notice of appeal. As in the period of limitation, it was permissi- the matter stands, we are of opinion that ble to show that the purchase was made the court would not be justified in setting some time during this year, and the testi- aside this order of the court. If the party mony was not subject to the objections made. had not been able to give the bond, after

[2] In the motion for a new trial appel- making due and appropriate attempts, we lant states that:

would have a different question presented, "This defendant has found new evidence in but this is not here made to appear. In fact, support of his own testimony, and new evi- it rather appears that he made no attempt by dence to disprove the testimony of state's wit- reason of the fact that, upon the entering of ress Jim Dillard, all of which he is willing to the judgment placing the bail at $5,000, he verify by affidavit of said witnesses, and would have their affidavits attached heretobut for the gave notice of appeal. We suppose the thefact that he has not had the time nor the op- ory of this appeal is that $5,000, under the

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circumstances, is too large. We cannot, in influence of sudden passion" "and adequate the state of the record, so hold. It may be cause," and stating that the passion cannot be that if, after due effort is made to give bail causing the death must be caused directly by in the amount fixed, he fails, the trial judge passion from provocation then given, it not should look into the matter and, if thought being enough that the mind is merely agitated advisable, reduce the bail.

by passion from previous or other provocation, As the record is presented, the judgment occurring at and prior to the homicide in deter

and that the jury should consider the matters will be affirmed.

mining provocation, with a further charge on murder and manslaughter, submitting the punishment, and the jury assessed the lowest pun

ishment for manslaughter against the defendant, Ex parte HENGY. (No. 3742.)

the charge is not reversible error as being so (Court of Criminal Appeals of Texas. Oct. 27, general and abstract as to mislead the jury 1915.)

into thinking that defendant was offering some

excuse under his right of self-defense. HABEAS CORPUS Om 113 - JURISDICTION-RELEASE PENDING APPEAL.

[Ed. Note.-For other cases, see Homicide, The Court of Criminal Appeals has no Cent. Dig. 88 715-717, 720; Dec. Dig. Om jurisdiction of an appeal from the judgment in 340.] a habeas corpus proceeding remanding the petitioner to custody, where he is admitted to bail Appeal from District Court, Fayette Counpending the appeal.

ty; Frank S. Roberts, Judge. [Ed. Note. For other cases, see Habeas Cor- Sidney Lockett was convicted of

of manpus, Cent. Dig. $$ 102–115; Dec. Dig. Om113.] slaughter, and appeals. Affirmed. Appeal from Criminal District Court,

I. D. Brown, of La Grange, for appellant. Dallas County; W. L. Crawford, Jr., Judge. c. C. McDonald, Asst. Atty. Gen., for the Habeas corpus by Louis Hengy. Prisoner

State. remanded to custody, and he appeals. Cause dismissed.

DAVIDSON, J. Appellant was convicted C. C. McDonald, Asst. Atty. Gen., for the of manslaughter, his punishment being asState.

sessed at two years' confinement in the peni

tentiary. PRENDERGAST, P. J. Appellant was ar- The only bill of exception in the record rested on a proper warrant issued on a com- complains of the fact that Mr. Sam Shelplaint against him from the corporation court bourne, foreman of the grand jury, was not of the city of Dallas, and was held in cus- a citizen of Fayette county, and therefore not tody by the chief of police of the city there- a competent grand juror, and, being incompeunder. He sued out before one of the dis- tent, he was a person not entitled to be in trict judges of Dallas a writ of habeas corpus the grand jury room at the time the indictseeking his discharge from said arrest and ment was found. It is unnecessary to disimprisonment. The judge heard the case and cuss that question, inasmuch as the facts all the evidence and remanded him to the show that Mr. Shelbourne was a citizen of custody of the officer holding him. He there- Fayette County and a qualified juror. upon appealed from the judge's order to this

Appellant filed exceptions to the charge at court and at once entered into a recognizance the time it was given, first, because the court and was discharged from actual custody by did not peremptorily instruct a verdict for virtue thereof.

the defendant. It is useless to discuss that Under such circumstances, it has uniform- in view of the testimony. We are of opinion ly been held by this court that it has no the court was correct in not so instructing jurisdiction to hear and determine any such the jury. The second exception to the cause. The giving bond or recognizance and charge is because it gives general and abdischarge thereunder prevents this court stract propositions of law upon the subject of from acting on the appeal. Ex parte Snyder, manslaughter, not applicable to the facts and 39 Tex. Cr. R. 120, 44 S. W. 1108; Ex parte issues, and by the giving of which in such Talbutt, 39 Tex. Cr. R. 12, 44 S. W. 832; Ex general and abstract form the jury were misparte Richie, 177 S. W. 85; Ex parte Har- led and confused to the prejudice of the devey, 177 S. W. 1174, and cases cited in these fendant, and caused them to conclude defendseveral cases.

ant was offering some excuse under his right This cause is therefore dismissed.

of self-defense. The charge on manslaughter we think is not subject to the criticism.

It gives the general definition of what is LOCKETT v. STATE. (No. 3751.)

meant by "under the immediate influence of (Court of Criminal Appeals of Texas. Oct. 27, sudden passion” and “adequate cause," and 1915.)

that the passion is not the result of a former HOMICIDE O340 — APPEAL - HARMLESS ER- provocation, and that the act causing death

— ROR--INSTRUCTIONS.

must be caused directly by the passion arisWhere, in a prosecution for homicide, the ing out of the provocation then given, and it court charged on self-defense and further charged on manslaughter, giving the general defini- is not enough that the mind is merely agition of what is meant by “under the immediate / tated by passion arising from some other or

previous provocation, but, in determining as I could take advantage of it, it must affirmativeto the provocation at the time, the jury ly appear that it was called to the attention of should consider all the evidence in the case,

the trial court. of matters occurring at the time of the dif- Law, Cent. Dig. 88 2951-2953; Dec. Dig. Om

[Ed. Note. For other cases, see Criminal ficulty, and all matters occurring prior there- 1128.] to. The court also gave the definition of Davidson, J., dissenting. "adequate cause," etc. The court charged on murder, submitting the punishment, and also

Appeal from District Court, El Paso Counon manslaughter, submitting the punishment. ty; W. D. Howe, Special Judge.

. Take the charge as a whole, it seems to be

Gabino Ornelas and Alfonzo Munoz were sufficient. The court also gave a charge on

convicted of burglary, and they appeal. Af

firmed. self-defense, of which there is no complaint. Inasmuch as the defendant received the low- C. C. McDonald, Asst. Atty. Gen., for the est punishment for manslaughter, and that State. being an issue in the case under the facts, we are of opinion there is no such error, even DAVIDSON, J. Appellants were convicted if the charge was not as full and specific as of burglary, their punishment being assessed it might have been. Where the charge on at two years' confinement in the penitentiary. manslaughter may be deficient in some re- The record is before us without a statespects, and the jury award the lowest pun- ment of facts or bill of exceptions. A moishment, we are of opinion the charge would tion for new trial was filed on the 5th day of not be error unless it interfered with defend- June, alleging that the verdict was not supant's rights to the extent of cutting off or ported by the evidence, and was contrary to minimizing his theory of self-defense. Had the law and the evidence as submitted to the the defendant received above the minimum jury. On June 21st an amended motion for punishment, the charge would have been crit- new trial was filed. It is unnecessary to noically reviewed, but, as before stated, man- tice the first ground. The second ground is slaughter being in the case, and the court as follows: having fairly presented that question, and "Because the jury after they had received the the lowest punishment having been awarded, charge they retired to their room to consider

their verdict, discussed the fact that defendant and in the absence of the fact that he con- Ornelas never testified in his own behalf, and tended it eliminated his self-defense or in considered that as a circumstance showing the any wise minimized it, we do not believe it guilt of the defendants herein." should be cause for reversal.

On the same day, June 21st, the following The other matters are mainly with refer- affidavit was filed: ence to the sufficiency of the evidence to sup

"Before me the undersigned authority this day port the conviction. This issue was sharply after being by me duly sworn deposes and says

personally appeared Luther Davenport, who controverted. The state's evidence would that he was a juror that tried Gabino Ornelas make a case fully as high as manslaughter. and Alfonzo Munoz, and that after the jury had That for the defendant presented the issue retired to the jury room to consider the evidence of self-defense. It is not the purpose of this in said cases one of the jurors during the discus

sion of the evidence mentioned the fact that the opinion to review the testimony. The issues defendant Ornelas did not testify in said case were made, and the jury decided them, and cither in his own behalf or in the behalf of there is evidence which justifies the verdict. the defendant Mụnoz and that his failure to so Under this view of the record, we think the show the guilt of the defendants, and this fact

testify was a circumstance which tended to judgment ought to be affirmed; and it is ac- was discussed by different members of the jury cordingly so ordered.

and was considered by them in rendering the verdict herein.

“[Signed] Luther Davenport."

This was properly sworn to and filed on ORNELAS et al. v. STATE. (No. 3703.) June 21st. On the same day, June 21st, the (Court of Criminal Appeals of Texas. Oct. 27, court entered this judgment: 1915.)

On this day came on to be heard the moCRIMINAL LAW Cm1128-APPEAL-REVIEW-tion of the defendants, Gabino Ornelas and Al

MOTION FOR NEW TRIAL - CONSIDERATION fonzo Munoz, to set aside the verdict and judgOF AFFIDAVIT.

ment and grant him a new trial of this cause, After conviction an affidavit of a juror the said defendants Gabino Ornelas and Alfonzo was filed, to the effect that after retirement of Munoz being present in court, in person, and the jury one of the jurors mentioned that a the court having heard said motion read, and defendant did not testify in his own behalf or being fully advised in the premises, is of the in that of the other defendant, stating that his opinion that the same should be overruled. failure was a circumstance tending to show de- is therefore ordered," etc. fendants' guilt, and that the fact was discussed The writer is of the opinion that this judgby different members of the jury and considered by them in rendering the verdict. Such affida- ment should be reversed. This affidavit is vit was not attached to or made a portion of or uncontroverted, and is the only thing in the an exhibit to the motion for new trial, which record bearing on the question of the diswas overruled on the same day that the motion cussion by the jury of the failure of dewas sworn to and filed. Held, that the judgment inust be affirmed, as such affidavit could fendant to testify. My Brethren are of the not be considered, since, before the defendants opinion that as this affidavit was not re

.

ferred to in the motion for new trial, or 3. CRIMINAL LAW Om 1097-APPEAL_REFUSmade an exhibit to it explicitly, therefore it

AL TO CHARGE-STATEMENT OF FACTS-NE

CESSITY. may not have been called to the attention of

Upon appeal in a criminal case, the action the trial judge, and that before appellant of the trial court in refusing to give special could take advantage of this it must affirma- charges, as requested, cannot be reviewed, in tively appear in some way that it was call- the absence of a statement of facts. ed to the attention of the court, and in this Law, Cent. Dig. ss 2862, 2864, 2926, 2934,

[Ed. Note.-For other cases, see Criminal condition of the record they hold the judg. 29:38, 2939, 2941, 2942, 2947; Dec. Dig. ment ought to be affirmed. In view of their 1097.] conclusion about the matter, the judgment

Appeal from Fisher County Court; M. A. will be affirmed, but the writer believes that inasmuch as it is specifically alleged in the Hopson, Judge. motion for new trial that the jury discussed

John Roe Dorris was convicted of wife the failure of Ornelas to testify, and that desertion, and he appeals. Appeal dismissed. the affidavit was filed the same day as was J. D. Barker, of Roby, for appellant. c. the motion for new trial, and the court on C. McDonald, Asst. Atty. Gen., for the State. the same day overruled it, this is sufficient evidence of the fact that it was called to HARPER, J. Appellant was convicted of his attention, and that he was aware of its wife desertion, and his punishment assessed existence as part of the motion for new at a fine of $200 and imprisonment in the trial. There is nothing to indicate the court county jail for a period of six months. did not know it, and it may be very reason- [1] The Assistant Attorney General moves ably presumed, and is in my judgment a just to dismiss the appeal because the recogniconclusion, that, if this affidavit had been zance is not in compliance with the statute, filed after the action of the court on the and this motion must be sustained. May v. motion for new trial, this record would have State, 40 Tex. ('r. R. 196. 49 S. W. 402; Johnshown it. The district attorney certainly son v. State, 49 S. W. 594. would not have let anything of this sort pass [2, 3] But if the recognizance was sufficient him, and especially as the court did not ad- to give this court jurisdiction, the statement journ until the 26th of June, five days after of facts does not show to have been presentthe overruling of the motion for new trial. ed to nor approved by the county judge, and But, in obedience to the opinion of the we could not consider the paper alleged to majority, the order will be entered affirming be a statement of facts. The only complaint the judgment.

in the motion for a new trial relates to the

failure of the court to give special charges HARPER, J. (concurring). I agree to the requested. With no statement of facts we affirmance because the motion for new trial can consider, it would be impossible for us is sworn to by no person. The affidavit re- to determine whether or not they, or either ferred to in the opinion is not attached to of them, should have been given. nor made a portion of nor exhibit to the The appeal is dismissed. motion for new trial, but bears separate and distinct file marks, and I do not think we are authorized to consider it as a part of the motion. The order overruling the motion evi- GRUBBS v. STATE. (No. 3747.) dences no evidence or affidavit was intro- (Court of Criminal Appeals of Texas. Oct. 27, duced on the hearing of the motion.

1915.) CRIMINAL LAW Om 1134APPEAL-BILLS OF EXCEPTION.

The only grounds in a motion for new trial DORRIS V. STATE. (No. 3738.) were insufficiency of the evidence and improper (Court of Criminal Appeals of Texas. Oct. 27, argument by the district attorney. The motion 1915.)

was not sworn to, and that the district attor

ney used such language was verified in no way. 1. BAIL O 65 CRIMINAL PROSECUTION - Held, that as the only bill of exceptions in the FORM.

record was reserved to the overruling of the An appeal from a conviction in a criminal motion for new trial, the one question for recase will be dismissed, where the recognizance view was the alleged insufficiency of the evidoes not set forth the punishment assessed, as dence. required by the statute.

[Ed. Note.-For other cases, see Criminal Ed. Note.-For other cases, see Bail, Cent. Law, Cent. Dig. 88 2587, 2653, 2986-2998, 3056, Dig. § 285; Dec. Dig. Om65.j

3067–3071; Dec. Dig. Om 1134.] 2. CRIMINAL LAW 1099-APPEAL-RECORD -STATEMENT OF FACTS-APPROVAL BELOW

Appeal from Criminal District Court, NECESSITY.

Travis County; A. S. Fisher, Judge. The statement of facts on appeal in a John Grubbs was convicted of crime, and criminal case cannot be considered, where it he appeals. Affirmed. fails to show a presentment to or approval by the county judge. [Ed. Note.-For other cases, see Criminal c. C. McDonald, Asst. Atty. Gen., for the

C. C. Parker, of Austin, for appellant. Law, Cent. Dig. &$ 2866-2880; Dec. Dig. Om

C. 1099.]

State.

HARPER, J. Appellant was convicted of the charge, as given, directly applied the law to assault with intent to commit the offense of the facts. rape on a girl under 15 years of age, and his

[Ed. Note. For other cases, see Larceny, Cent. punishment assessed at 6 years' confinement Dig. 88 182, 183, 185, 186; Dec. Dig. Cm70.] in the state penitentiary.

4. CRIMINAL LAW Om792-CATTLE THEFT

PRINCIPAL ACCOMPLICE INSTRUCTIONThe only bill of exceptions in the record SUFFICIENCY. is reserved to the action of the court in over- An instruction in a prosecution for cattle ruling his application for a new trial. Con- theft that all persons guilty of acting together

in the commission of an offense are principals, sequently the only ground of the motion we

as are also others present knowing the unlawful can review is the one alleging the insuffi- intent who aid or encourage those actually enciency of the testimony to support the con- gaged, that the offense of theft is complete when viction. The only other ground in the mo- the alleged thief has taken actual possession

and assumed ownership of the property, and tion alleges that the district attorney used that defendant should be acquitted unless he certain language in his closing address. The had some connection with the original unlawful motion is not sworn to, and that the district taking of the cow, was sufficient, and not obattorney used such language is verified in no to instruct that defendant must be acquitted if

jectionable for a failure to define principals or way.

shown by the evidence to be an accomplice. We have carefully read the evidence ad- [Ed. Note. For other cases, see Criminal duced on the trial. There is a sharp conflict Law, Cent. Dig. $8 1818-1820; Dec. Dig. Om in the testimony. The little girl's evidence,

792.) like that of many other children, is not en- 5. LARCENY Ow70—CATTLE THEFT—INSTRUC

TION-SUFFICIENCY. tirely satisfactory, but when we take the

In a prosecution for cattle theft, a charge evidence of the other witnesses in the case, we that, if defendant bought or traded for the cow, cannot say that the jury was not authorized or was not connected with the original taking, to believe her statement that the appellant he should be acquitted, coupled with a further

charge on circumstantial evidence, was not obdid make the attempt. An officer swears jectionable for failure to charge that defendant that on the occasion in question he caught should not be convicted if he was a receiver, appellant and the girl in a house occupied and not the thief, since, under the charge, the alone by him, with the door locked and a pal-jury were bound to find defendant not guilty if

he was not connected with the original taking, let on the floor. We do not deem it neces- even though he had received the animal with sary to recite all the evidence.

knowledge. The judgment is affirmed.

[Ed. Note.-For other cases, see Larceny, Cent. Dig. 88 182, 183, 185, 186; Dec. Dig. Om 70.]

Appeal from District Court, Milam CounMCANINCH v. STATE. (No. 3763.)

ty; J. C. Scott, Judge. (Court of Criminal Appeals of Texas. Oct. 27, George McAninch was convicted of cattle 1915.)

theft, and he appeals. Afirmed. 1. CRIMINAL LAW Om 814–COUNTS CHARGING DIFFERENT OWNERSHIP-INSTRUCTIONS.

E. A. Camp, of Rockdale, for appellant. Where, in a prosecution for cattle theft on C. C. McDonald, Asst. Atty. Gen., for the two counts, the first alleging ownership of the State. stolen cow in the husband, and the second count in the wife, whom the evidence showed to claim ownership, both having testified to lack of their DAVIDSON, J. Appellant was convicted consent, it was not error to charge on the ques-of cattle theft; his punishment being astion of theft of a cow as the property of the sessed at two years' confinement in the penhusband. [Ed. Note. For other cases, see Criminal itentiary.

, Law, Cent. Dig. $S 1821, 1833, 1839, 1860, 1865, [1] Exception was reserved to the court's 1883, 1890, 1924, 1979–1985, 1987; Dec. Dig. charge on several grounds. The first was Om 814.]

that the court erred in charging on the ques2. CRIMINAL LAW 775—ALIBI - INSTRUC- tion of theft of the cow as the property of TION.

A charge on alibi which told the jury that, P. B. Hickson; it being claimed the cow if they had a reasonable doubt as to the pres- | did not belong to P. B. Hickson, but was ence of defendant at the time and place where the property of Lula Hickson, the wife of the offense was committed, they should find him P. B. Hickson. The indictment contains two not guilty, sufficiently submitted the defense.

[Ed. Note. For other cases, see Criminal counts, one charging the cow to be the propLaw, Cent. Dig. $$ 1833-1837; Dec. Dig. Om erty of Lula Hickson, and the other charg775.)

ing the cow to be the property of P. B. Hick3. LARCENY Ow70_CATTLE THEFT-INSTRUC- son. They both testified in the case, and TION-SUFFICIENCY.

to the want of consent on their part. There A charge in a prosecution for cattle theft, is some evidence showing that Mrs. Lula in which the defense was that the cow was received in a trade, that if the jury believed Hickson claimed the cow, and we suppose it that defendant received the cow in trade or sale, was community property, though there is or if they had a reasonable doubt thereof, they nothing said about it. These people were must acquit, was not objectionable, as failing husband and wife, and she speaks of it in to charge when a theft is completed, and that defendant must be acquitted unless he partici- | the nature of a milk cow-a noted cow in pated in the actual taking as a principal; since the neighborhood where it was stolen, But

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