*1 Caddell v.' State. 1905.1 857, alleged, in the transaction and under article might robbery However, AA’e Penal Code. are not these questions, discussing to is allude thеm to the contention that this not a case only regard theft of false Penal pretext Code. revision,
There are several other interesting questions presented as this is not case of a" discussion the theft, of remaining ques- is pretermitted. tions
For the reasons is and the reversed indicated, prosecu- ordered dismissed. tion
Reversed and dismissed. Tom Caddell
No. 3358. 1.—Burglary—Want of Consent. burglary, ownership alleged house to have been bur- alleged glarized, property, persons; well to be in as as the was two different there nothing in show to that one of the was asked the record owners while regard сonsent, testify stand in to his want of and he did not witness proven, it. Held that want of consent had been as this to ferred, cannot be in- proven especially this fact could have been witness on the stand. Z.—Same—Evidence—Hearsay. burglary found, fact small that a of tobacco On burglarized hearsay indentified as the tobacco taken from house
but not testimony. 3.—Same—Hearsay—Evidence. found in a trial for evidence that of tоbacco was On way mattresses, connect between the identified to the defendant’s this Brooks, stolen, hearsay Avas that which Avas tobaсco with dissenting. Judge, Tried of Henderson. beloAVbefore District Court from the
Appeal D. H. Gardner. Hon. two.years of burglary; penalty, imprison- from a conviction
Appeal in the penitentiary. ment the case. states
The opinion Prince, for appellant.
John Martin, for the State. Attorney-General, Assistant Howard Judge. Presiding This isa conviction. The ON, DAVIDS have been well as burglarized, to ownership L. Cole. Error T. Cole and W. to be W. is alleged the want consent of prove failure State on the assigned the record to show He L. Cole. W. cоnsent, and he his want did wish to in regard was asked relies the State is supposed it. in regard testify Reports. 49 Texas Criminal [Tyler, might the circumstances the conclusion that he did is not not consent. This sufficient. Here witness did before testify *2 very and it could have been shown or not he jury, easily whether v. 30 Texas Statе, consented. Good Crim. App., 276; Wisdom v. In State, 42 Texas Crim. Wisdom’s it was said: Rep., case, witness, fails “Where the owner is a direct and give to his want of cоnsent to the taking of positive will not be such want of consent inferred from other circumstances Texas State, in evidence. v. 30 276. While it Good Crim. Aрp., true that want of consent be circumstantial evi may by proved Wilson'g dence, case, Texas, in 45 case, Texas, 76; Kemp's said 38 case, 1 110; 102; Texas 3 Texas App., case, McMahon's Crim. Welsh's 5 422; case, 480; Texas Crim. App., Crim. Trafton's App., Clayton's case, case, 348; 15 20 Texas App., Texas Crim. Schultz’s Crim. App., case, 308; 20 this character 603—yet Texas Crim. Mackey's App., not be to where direct of the fact of evidence can resorted State, 7 Texas App., 363; is obtainable. Jackson v. Crim. Stewart State, State, 321; v. 9 Texas Wilson v. Texas Crim. App., Crim. 12 v. Texas 481; State, App., 338; 13 Crim. Williamson Apр., Bowling 514; State, State, v. 13 Texas Anderson v. 14 Texas App., Crim. 49; State, 563; Love 15 Texas Crim. App., Clayton Crim. v. App., State, 348; State, Miller Texas v. 15 Texas Crim. v. 18 Crim. App., Statе, 276; State, Texas 19 34; v. 9 Crim. Scott v. App., Pratt App., 325; State, Texas Crim. App., Texas Crim. App., Schultz is a familiar rule that the best evidence attainable must bе adduced.” It case, rule laid down the Wisdom strictly This comes within and supporting authorities.
E. his appellant’s 16-year- H. over that Garter Stockard, at after the went to the office daughter post Sunday old road, from traveled Stockard to defend usually leading tobacco, with her a small back residence, brought ant’s Talk,” on it. The should have words “Town had the We believe this little town of in the Stockard. occurred to introduce this girl If it wаs desired is entirely used as a-witness. This hearsay. effect introduced to the that some ten also evidence There was of tobaccо was found the alleged burglary, after days the mattresses. Objection was urged the defendant’s from the store was a considerable tobacco taken quantity, to this. brands, some of it the different called by being was identified Talk,” Call,” etc. There was “Roll “Dash,” “Town bill, indicating tobacco found at ap- shown brands, of these or any belonged any way pellant’s that which was stolen. with used Appellant tobacco to connect rе- family he lived: he the other tobacco, as did members in the bill we do not believe As shown this testi- father. with siding course, or circumstance which Of would was admissible. y. Lucas The State. ISOS.'] tend connect defendant with the admissible, burglary' must some connection or some fact tobacco, if it was сonnecting him, defendant or controlled possession with taken from the store Coles. taken as a crimina- certainly fact, tobacco, tive a man uses against who has in his tobacco There must be some evidence possession. introduced the to- connecting baсco in his with stolen. possession
We believe the for continuance should application have been granted, we do deem to enter into though necessary a discussion of it, be- cause that can arise another question hardly trial. reversed and the cause remanded.
Reversed and remanded. Judge.—Thinks BROOKS, evidence in to the tobacco found *3 under the defendant’s bed admitted.
Al Lucas v. No. 3350. 1905. Degree—Evidence—Bill Exceptions. —Murder 1. Second еxceptions ground objection A bill of which does not state the to the testi- to remarks made deceased, with reference defendаnt about to the effect get him, if he went after a man he went can not be considered on an appeal a from conviction of murder. —Same—Credibility Exceptions. of Witness—Bill of 2. murder, on for Where State introduced that defendant was murder, purpose discrediting for an assault fоr under indictment general that such a to do with the. correctly overruled. —Same—Requested Charge—Deadly Weapon. 3. murder, very strongly where the evidence to show deadly weapon, in the homicide was not itself knife used a the court requested charge phase given on of thе case. should —Same—Aggravated Assault—Simple Assault. 4. necessitating charge upon opinion aggravated simple for facts a See аnd assault Procedure. Code Criminal —Same—Manslaughter—Charge 5. of Court. .charge manslaughter predi- for murder where the court’s on On a trial personal great specially injury conflict in cated on serious was inflicted a person killed, etc., charge, no and there was such aggrеssor the deceased was the to show there was struck pain, evidently causing charge blow, first of the court defendant have adequatе given this as cause. —Same—Provoking Difficulty—Charge of Court. murder, difficulty casual on trial the evidence showed a Where committing deceasеd, becoming assault defendant and offended an deceased authorizing charge provoking upon defendant, difficulty. a there was no evidence —Same—Charges of the Court. aggra- degrees homicide, charges suggested opinion See on the different assault, simple vated assault.