*1 . State. issued that capias further appearing town of Woodville/ relator is held in a valid warrant.” of which custody thereon virtue by custody And remanded the sheriff. applicant by charged that appellant properly From this clearly appears 130, Code, Penal Revised information under article complaint There is no state- Statutes, 7355, offense. article section an two One to exceptions. ment of has bills which that after had all of evidence effect introduced thereon, affidavit information and information based consisted of the insufficient the evidence because was and the he demurred to capias, offense that the relator had committed the court in justify presuming that an offense had been against him, charged or excepted. to which he court overruled said demurrer and remanded is to the effect he offered in evidence what purported but the court tax of this Comptroller be for said receipt or to hear same, consider refused to him to introduce or an offense had -been committed as to whether or any offense the relator connected with excepted said and he thereupon charged information, ob- says .said action. explaining The court State to estab- that evidence tending to this tax for the reason jected receipt con- lish the of a defendant could guilt properly innocence sidered in reason that hearing a habeas corpus void. expected to show receipt correct, in all except The action things lower When ought corpus. to have refused the of habeas writ peremptorily information properly indictment or person by proper complaint law, commission of an offense under valid trial before regular son can not habeas avoid a by any corpus proceedings If or the court in a misdemeanor if he waives showing has defense he can show on the trial and can Texas Muse, it on Ex habeas avoid a trial. corpus proceedings parte Criminal Reports, affirmed.
Affirmed. Harvey Davis v. 20, 1915.
No. 1.—Murder—Conspiracy—Charge Court—Principals. Where, murder, prin- conspiracy the court’s cipals was according approved precedent, was no reversible error. there Davidson, recently dissenting. Judge, Serrato v. decided. Evidence—Charge of Court. 3.—Same—Circumstantial murder, upon trial of the evidence did not raise the issue cir- alone, cumstantial there was error in the no failure to Davidson, Judge, dissenting. thereon. Beports. 3.—Same—Evidence—Withdrawal of Evidence. upon trial of the court after admitting certain irrelevant *2 testimony of a damaging nature to defendant withdrew the same from the jury, senting. thereby. error not cured Prendergast, Presiding Judge, dis- 4.—Same—Evidence—Reversible Error. of the court admitted certain testimony with purchase reference to the of intoxicating liquors and which had no connection homicide, with the the same was reversible error. Appeal District Court of Newton. Tried below before Hon. A. E. Davis. from a Appeal conviction of murder; five penalty, years imprisonment in the penitentiary. The opinion states case. for appellant. Hamilton, Forse & of question charge on On
principals
conspiracy: Foster
248;
v.
State,
Texas Crim. App.,
State,
Briscoe v.
DAVIDSON, Judge.Appellant was convicted-of murder and pros- ecutes this appeal. The theorjr others, on night homicide,
of the together in unlawful That purposes. among things, they to the house named Helium, Dock Hughes went in the house and shot the wife of Helium to death. Helium killed Dock There Hughes. no evidence that of the house, were in the though the State’s were about the house or near by. to charge reference in acting together the conspiracy kindred subjects is attacked for various reasons. The writer does to care review those is in questions. charge accordance with the in the recent case of Serrato v. writer opinion State. The does e with that sustained in believed that cas opinion, charge
did does state the law. this correctly charge in to in harmony opinion seems is further because it does not submit the charge attacked charge The writer believes the circumstantial evidence. exception ways, in this to well taken. This matter is raised in various respect in charge hut suffice it to that this law was not given say phase offered. to either instructions requested in the court’s At it is a to determine whether a on circum- times little difficult It has been held in several cases is requisite. stantial evidence fact in such close to juxtaposition the facts are this of the law it is not necessary phase cases of however, relied circumstances case, this is no .the homicide. There evidence that connect the defendant idea. His evidence excludes that fact, the killing; in the engaged must at all, if be, gathered with the killing or connection criminality From absence of evidence. in the circumstances, positive circumstantial evidence was charge on writer believes however, light viewpoint, is another There necessary. law. call for seems to criminal intent rule, does not evidence, as a apply Circumstantial act act criminal connection with usually but it applies The mere presence violation of law. *3 make him a criminal. have does not He may of the homicide the scene it if he did yet participate a crime was known that the the his mere encourage killing, doing indirectly directly transaction nor him a the not constitute principal would presence the the So from either killing. with criminally connect him was the facts. Appellant called charge on circumstantial and so as to himself fully clearly the matter bring having presented have statute, the should been given. within the late the in error in It is also claimed by with reference to before the go jury evidence to mitting it was appellant, it absence when and having drinking whisky homicide. The court after admitting in no with this connected way always dangerous is the It jury. withdrew from testimony nature, itas was testimony damaging evidently to admit erroneous to withdraw from and remove jury and then seek and admissible, Tin's was clearly minds. effect from their of such a nature us, facts, damaging occurs to under the not cure the error. of it did the withdrawal selling permitted go whisky some the witness testified negroes she. meeting arose This was some time prior whisky appellant. bought homi- and was not connected at a different place,
homicide and the local option It doubtless was a violation of way. cide noth- that offense had sell this but whisky, for him to in Newton County way was in no connected to do with ing This was error. character. damaging evidently and the cause is reversed stated the reasons above For remanded. and remanded.
Reversed I do not to the reversal HARPER, Judge. agreeing for. evidence was called circumstantial agree negro agreed go and appellant Hughes shows Dock record Dock when together negro.” them a They quarters “get Reports. Hughes sehoolhouse; fired the shots in the were together when they McCain; Elsie appellant whipped together when they they to two other negro houses, they and defendant another negro; whipped when house together went to the Kellum. Hughes carried on conversation about how to Kellum out get As house. on all positive testimony appellant present occasions, these do not think a on circumstantial we for. that killed called fired the fatal shot It clear who Kellum, it is or one Hughes, Grace manifest Dock appellant, shot, those of who fired him-, did do so, regardless act, as Kellum’s to do an the evidence shows went to house act, unlawful each and one all every understanding agreeing with the one who would he present participating equally guilty fired the shot. Presiding Judge. Harper. PRENDERGAST, Judge I by the court of the evidence also withdrawal I believe admis- errer, cured
reason for Elsie McCain whipping reversed, for which the case partly sion of the other evidence error as should cause reversal. N. Burrus R.
No. 3385. *4 Person—Indictment—Description—Honey. 1. —Theft ap the indictment followed upon person, theft from the twenty dollars lawful property as precedent, and described the stolen proved States, Following Green the same sufficient. money of the United App., cases. 28 Texas Crim. and other Person—Charge of Court. from —Theft 2. person, instructed the the court trial theft intended beyond a reasonable doubt that defendant they must believe that to use and benefit before could convict appropriate money to his own do was untenable. contention that failed to so Charges. Court—Requested —Same—Charge requested charges presented were show that failed to Where the record jury, they charge to could not be read his to the court before reviewed on the bill refusal besides, 170 S. W. appeal. Ross v. any reversible error in the point did not out Ryan charges. Following v. State. Moreover, the same embraced other cases. —Same—Evidence—Rebuttal—Strangers. person, theft from the the court refused injured testify that he the same reversible error. members defendant strangers, testimony showing same lodge, State’s