페이지 이미지
PDF
ePub

mission of another crime.-State v. Banks, 167, time he arose from his chair just before he was S. W. 505. shot, was commanding or demanding accused to sit down was proper, where the court informed counsel that they could question the witness as to what deceased said.-Johnson v. State, 167 S. W. 733.

In a prosecution for killing a police officer in attempting to arrest accused, evidence that he had committed other crimes, including robbery, etc., was not admissible as showing cause why the deceased officer attempted to arrest defendant without a warrant; there being no evidence that the officer knew of the commission of the other offenses.-Id.

Where all witnesses agreed that deceased called accused a "damn liar," and accused claimed that much worse epithets were used, the exclusion of a question to a young lady present at the killing as to whether deceased's language was profane was not error.-Id.

(J) Testimony, of Accomplices and Code

$369 (Tex.Cr.App.) That evidence which was admissible to contradict the defense also tended to show that the defendant was guilty of another offense does not affect its admissibility. -Hewitt v. State, 167 S. W. 40.

[blocks in formation]

(G) Acts and Declarations of Conspirators |

§ 427 (Tex.Cr.App.) Declarations of a coconspirator during accused's absence, in furtherance of a conspiracy that accused should burn the coconspirator's house for the insurance, were admissible under an instruction that they could only be considered if the conspiracy was proven beyond a reasonable doubt.-Walker v. State, 167 S. W. 339.

(H) Documentary Evidence and Exclusion of Parol Evidence Thereby.

§ 444 (Tex.Cr.App.) Where a witness testified that a marriage license offered in evidence on a trial for bigamy was the original license issued by the clerk, and that the witness was deputy, and knew the signature on the license to be genuine, the license, under the seal of the clerk, was properly received in evidence, though not filed with the papers in the case.-Harris v. State, 167 S. W. 43.

fendants.

$507 (Tex.Cr.App.) Under Acts 32d Leg., c. 23, making it a felony to procure a female to leave the state for the purpose of prostitution, the female so induced to leave is not an accomplice, even though she went voluntarily.-Hewitt v. State, 167 S. W. 40.

(I) Opinion Evidence.

$ 451 (Tex.Cr.App.) The sustaining of an objection to a question whether deceased, at the

§ 507 (Tex.Cr.App.) A witness is not an accomplice merely because he received from accused a specified sum to procure prosecutrix to write a letter asking for the dismissal of a prosecution for rape, or merely because he obtained a part of the amount so paid.-Burge v. State, 167 S. W. 63.

and Codefendants.

§ 426 (Mo.) Where a codefendant, after having been convicted, testified for the state against accused, evidence of prior statements by such witness concerning her own inno- XI. TIME OF TRIAL AND CONTINcence was not material for any purpose.-State v. Peters, 167 S. W. 520.

UANCE.

jointly charged with theft, and, a severance § 508 (Mo.) Where defendant and C. were having been granted, C. was tried first, and immediately after submission of her case, defendant was placed on trial, C.'s incompetency to testify for the state at the beginning of defendant's trial was removed by her conviction during such trial.-State v. Peters, 167 S. W. 520.

(K) Confessions.

§ 519 (Mo.) Whether a confession, made while under arrest, is involuntary depends on the character, age, sex, disposition, and past experience of accused.-State v. Powell, 167 S. W. 559.

$531 (Mo.) Evidence held to show that a confession was not voluntary.-State v. Powell, 167 S. W. 559.

Where the state, relying on a confession, showed that accused did not want to incriminate a third person, but did incriminate him though he was not guilty, proof that the third person was not guilty was admissible to show that the confession was involuntary and false. —Id.

§ 538 (Mo.) Accused may introduce evidence to impeach or discredit his confession, admitted in evidence.-State v. Powell, 167 S. W. 559.

§ 584 (Mo.) Defendant held not entitled to a postponement to obtain proof of the prior conviction of a witness, where no attempt was made to prove the fact by cross-examination, as authorized by Rev. St. 1909, § 6383.-State v. Peters, 167 S. W. 520.

[blocks in formation]
[blocks in formation]

(E) Arguments and Conduct of Counsel. $ 720 (Tex.Cr.App.) That a witness testifying for accused had been convicted of a felony and had been pardoned by the Governor could properly be referred to in the argument of the prosecuting attorney.-Harris v. State, 167 S. W.

[blocks in formation]

$ 778 (Tex.Cr.App.) Where prosecutrix's withdrawal from the state was claimed to have been to prevent her from testifying against accused, but he denied having any knowledge thereof, the court should have charged, at his request, that,

the fact against him for any purpose.-Caples shooting and killing decedent was not objecv. State, 167 S. W. 730.

tionable.-McDaniels v. State, 167 S. W. 96.

$ 778 (Tex.Cr.App.) A charge held not improper, as casting on accused the burden of proving self-defense.-Johnson v. State, 167 S. W. 733.

§ 784 (Tex.Cr.App.) On a trial for theft, testimony that, while the prosecuting witness was in bed, accused took his pocketbook from his pants, which were lying by the bed, justified the refusal of an instruction on circumstantial evidence.-Thompson v. State, 167 S. W. 345.

$785 (Mo.) Where defendant and his wife testified in his behalf, it was not error to instruct that, in determining the weight to be given to their testimony, the jury might consider "the fact that he is the defendant, and that she is his wife, and the interest they have in the result of the trial."-State v. Hyder, 167 S. W. 524.

786 (Mo.) Where defendant and his wife testified in his behalf, it was not error to instruct that, in determining the weight to be given to their testimony, the jury might consider the fact that he is the defendant.-State v. Hyder, 167 S. W. 524.

§ 789 (Mo.) It is reversible error to fail to instruct that, unless defendant's guilt is proved beyond a reasonable doubt, the jury shall give him the benefit of the doubt and acquit-State v. Douglas, 167 S. W. 552.

Instruction as to the effect of defendant's previous good character, although it referred to reasonable doubt, held not a sufficient instruction as to reasonable doubt.-Id.

§ 789 (Tex.Cr.App.) A charge held to sufficiently present the question of reasonable doubt, without applying it to each paragraph of the charge. James v. State, 167 S. W. 727.

814 (Ark.) Instruction that, if mortal wound was received from a shot fired accidentally, the subsequent intentional firing of other shots would not make accused guilty of homicide unless they contributed to the death held inapplicable, where accused denied firing any of the shots, and the other eyewitness testified that he fired all while standing over deceased, who was lying on the floor.-Woolman v. State, 167 S. W. 851.

§ 814 (Ky.) In a prosecution for homicide, where six defendants had been jointly charged with the crime in an indictment containing three counts, one of which charged a conspiracy, evidence on the separate trial of the defendant, who fired the fatal shot, held sufficient to warrant the court in instructing the jury on the theory of conspiracy.-Gabbard v. Commonwealth, 167 S. W. 942.

$814 (Tex.Cr.App.) Where there was no testimony that there was any usual road which the defendant might have taken to his destination rather than the one he did take and which led by the land of deceased, it was not necessary for the court to give a requested charge that the defendant was not bound to take some other road or diverge from his usual course to avoid meeting the deceased.-Carey v. State, 167 S. W. 366.

§ 815 (Tex.Cr.App.) Where there was evidence that when defendant left the state he had no knowledge that there was an indictment or process against him, the court should have charged that, if he had no such knowledge, his leaving the state could not be considered against him.-Caples v. State, 167 S. W. 730.

§ 823 (Ark.) Where the court charged with particularity and certainty the essentials of the various degrees of homicide and of the material allegations of the indictment, an instruction that the state must prove beyond a reasonable doubt that accused, prior to the finding of the indictment, committed the crime alleged therein by

[blocks in formation]

$9252 (Tex.Cr.App.) Where the evidence of all the jurors showed that there was no discussion of accused's former conviction, though one juror incidentally mentioned the fact, there was no misconduct warranting the setting aside of a conviction.-Burge v. State, 167 S. W. 63.

Where, after the jurors had agreed on a verdiet, one of the jurors remarked that accused had once separated a man and his wife, and the punishment fixed was less than that fixed on the former trial, there was no misconduct.-Id.

938 (Tex.Cr.App.) A new trial on the ground of newly discovered evidence, based on the testimony of a witness, was properly denied, where the witness was in attendance during the trial, and was not placed on the stand after conferring with accused's counsel.-Harris V. State, 167 S. W. 43.

§ 951 (Ky.) Civ. Code Prac. § 344, providing that if grounds for a new trial be discovered after the term at which the judgment was rendered, the application may be made by petition not later than the second term after discovery,

etc., apply alone to civil actions and not to criminal cases.-Wellington v. Commonwealth, 167 S. W. 427.

A judgment of conviction of the circuit court is final, though an appeal be taken, within Cr. Code Prac. § 273, requiring application for a new trial to be made before final judgment; the effect of the appeal being merely to suspend the enforcement of the judgment.-Id. Defendant's motion for a new trial, filed after-Burge v. State, 167 S. W. 63. the term at which he was convicted and judgment entered, could not be considered; Cr. Code Prac. § 271-274, authorizing the granting of new trials and.specifying the time within which such motions may be filed, being exclusive.-Id.

$951 (Mo.) Without objection or exception to the rendition of judgment on the same day the verdict was received, a motion for new trial filed after judgment was too late.-State v. Dunnegan, 167 S. W. 497.

§ 974 (Mo.) Without objection or exception to the rendition of judgment on the same day the verdict was received, a motion in arrest filed after judgment was too late.-State v. Dunnegan, 167 S. W. 497.

XIV. JUDGMENT, SENTENCE, AND
FINAL COMMITMENT.

§ 982 (Tex.Cr.App.) Accused, filing a plea for a suspended sentence under the suspended sentence act, puts his reputation in issue, and the state may show his bad reputation as a lawabiding citizen by proving his arrest for offenses not involving moral turpitude.-Williamson v. State, 167 S. W. 360.

That accused has been convicted of a felony bars him of the right to file a plea for suspension of sentence under the suspended sentence act, otherwise he may file the plea, and where he may reform by extending clemency, and society will not suffer, the sentence may be suspended, but otherwise the punishment should be imposed.-Id.

XV. APPEAL AND ERROR, AND
CERTIORARI.

(A) Form of Remedy, Jurisdiction, and

Right of Review.

$1020 (Tex.Cr.App.) Under Code Cr. Proc. 1911, art. 87, no appeal lies from a conviction in the county court on appeal from a justice's court, where the fine assessed exclusive of costs does not exceed $100.-Allen v. State, 167 S.

W. 342.

(B) Presentation and Reservation in Lower Court of Grounds of Review.

$1028 (Tex.Cr.App.) Under Acts 33d Leg. c. 138, providing that the charge in felony cases shall be read before the argument and after a reasonable time for defendant to present objections and requests for instructions in writing, defendant's requested charges, not presented to the court or acted upon by it before the charge and argument cannot be considered on appeal.-Jones v. State, 167 S. W. 1110.

$1032 (Tex.Cr.App.) Where the original indictment was misplaced while in the hands of accused's attorney, who stated that he had a copy which could be used as a substitute, which was done by consent in the presence of accused, accused could not on appeal complain because he in person made no agreement for substitution. Harris v. State, 167 S. W. 43.

$1037 (Tex.Cr.App.) Accused, objecting to the argument of the prosecuting attorney, should, in addition to the making of an oral request for a charge directing the jury to disregard the argument, present a special charge on the subject, though, where the argument is very harmful, the error may be presented when only the oral request has been made.-Sorell v. State, 167 S. W. 356.

§ 1038 (Ark.) Where an instruction on the de

cused in the language requested, accused, believing that the instruction was susceptible of meaning that the burden shifted on him to prove his innocence, must call the court's attention to it, or he cannot complain on appeal. Joiner v. State, 167 S. W. 492.

$1038 (Tex.Cr.App.) Under Acts 33d Leg. c. 138, an objection to instructions cannot be raised for the first time on motion for rehearing.

art. 743, as amended by Acts 33d Leg. c. 138, $1038 (Tex.Cr.App.) Under Code Cr. Proc. the court on appeal will not consider the correctness of instructions, where no objection was made until after verdict.-Williamson v. State, 167 S. W. 360.

made to the charge either on the ground of $1038 (Tex.Cr.App.) Where no objection was omission or commission, error in the refusal of special charges requested by defendant will not be considered.-Jones v. State, 167 S. W. 1110.

application to withdraw his announcement of § 1052 (Tex.Cr.App.) Overruling defendant's ready for trial and move for a continuance was not reviewable; no exceptions having been taken.-Smith v. State, 167 S. W. 843.

1055 (Mo.) Where defendant does not except to the action of the trial court upon his objection as to remarks of the state's attorney, versal of the case.-State v. Butler, 167 S. W. the remarks will not necessarily cause a re

509.

§ 1056 (Mo.) Notwithstanding Rev. St. 1909, § 2081. the failure to give instructions required to be given without request by section 5231 taken.-State v. Douglas, 167 S. W. 552. is reviewable, without an exception having been

§ 1056 (Mo.) A failure to instruct, in a felony case, upon all questions of law necessary for the information of the jury under Rev. St. 1909, § 5231, need not be excepted to.-State v. Perrigin, 167 S. W. 573.

ap

§ 1063 (Mo.) Under Rev. St. 1909, §§ 5231, 5285, the failure to give an instruction as to reasonable doubt cannot be reviewed on peal, unless brought to the trial court's attention by a motion for a new trial.-State v. Douglas, 167 S. W. 552.

§ 1063 (Mo.) A failure to instruct, in a felony case, upon all questions of law necessary for the information of the jury under Rev. St. 1909, § 5231, must be called to the court's attention by a motion for a new trial.-State v. Perrigin, 167 S. W. 573.

[blocks in formation]

§ 1090 (Tex.Cr.App.) Bills of exceptions must

[blocks in formation]

a conviction, where the challenged jurors did not serve on the jury, and it was not shown that any objectionable juror was forced on de fendant by reason of his being required to chal lenge.-James v. State, 167 S. W. 727.

$1137 (Ark.) In a prosecution for willful and himself testified that he had donated the site malicious injury to a church, where defendant for church purposes, he could not on appeal complain that it was used for a schoolhouse as well as for church purposes.-Saffell v. State, 167 S. W. 483.

§ 1122 (Tex.Cr.App.) Where alleged improper remarks of the district attorney were not disclosed by the record, failure to give a charge requesting the jury not to consider them would not be considered.-Willis v. State, 167 S. W. 352. (G) Review.

[blocks in formation]

§ 1134 (Tex.Cr.App.) An exception to the court's action on defendant's peremptory challenge would not be considered on appeal from

$1169 (Tex.Cr.App.) Any error in admitting evidence that accused, charged with selling intoxicating liquor, had an internal revenue liquor license was not reversible, where the court withdrew the evidence from the jury and di

« 이전계속 »