XI. TIME OF TRIAL AND CONTINUANCE.

§ 594 (Tex.Cr.App.) The court did not err, on the day of a criminal trial, in refusing accused time to inform her attorney, who had just been employed, to get a witness, who would have testified that she and accused were together shortly before the alleged commission, but whose attendance accused had made no effort to secure.-Johnson v. State, 156 S. W. 1181.

$ 596 (Tex.Cr.App.) It is not error to refuse a continuance on the ground of the absence of a witness whose testimony is impeaching.-Cole v. State, 156 S. W. 929.

$598 (Tex.Cr.App.) Accused, who relies on his sister's word that she will attend court, does not show diligence essential to a continuance on the ground of her absence.-Cole v. State, 156 S. W. 929.

$598 (Tex.Cr.App.) Where defendant was arrested on May 19th and no process was issued for any witness until October 26th, the cause being set for trial October 31st, there was an inexcusable lack of diligence, warranting the overruling of an application for a continuance. -Nunez v. State, 156 S. W. 933.

$ 637 (Tex.Cr.App.) The fact that defendant was arrested in another case pending against him during the time he was on trial was not ground for reversal.-Nunez v. State, 156 S. W. 933.

§ 641 (Tex.Cr.App.) White's Ann. Code Cr. Proc. art. 547, requiring the court in capital felony cases to appoint counsel for accused, too poor to employ counsel, is mandatory.-Burden v. State, 156 S. W. 1196.

§ 643 (Tex. Cr. App.) Under White's Ann. Code Cr. Proc. art. 547, requiring the court in capital felony cases to appoint counsel for accused too poor to employ counsel, and Acts 32d Leg. p. 264, providing for official court stenographers, the court, in a capital felony case appointing counsel for accused, must compel the stenographer, when an appeal is perfected, to furnish a transcript.-Burden v. State, 156 S.

W. 1196.

§ 649 (Tex.Cr.App.) On facts stated, held, that refusal to defer the selection of a jury until defendant had been furnished with the, names of all contributors to a fund in aid of prosecution was not error.-Holmes v. State, 156 S. W. 1172.

(C) Reception of Evidence.

§ 671 (Ark.) The approved practice is to withdraw the jury while the court is hearing evidence to determine whether a confession is admissible.-Greenwood v. State, 156 S. W. 427.

§ 673 (Tex.Cr.App.) Where contradictory statements of unsatisfactory witnesses for the state were admitted, it was error to refuse to charge

$ 683 (Tex.Cr.App.) Where accused, on trial for seduction, showed, on the cross-examination of prosecutrix, that he paid expenses incurred by her going away, the state could show that he had not paid all the expenses but that her father had paid part of them.-Cole v. State, 156 S. W. 929.

§ 684 (Ky.) The court may permit in rebuttal testimony that should have been introduced in chief.-Duff v. Commonwealth, 156 S. W. 149. $ 687 (Ky.) Under Cr. Code Prac. §§ 220223, defining the order of proof and proceedings in criminal cases, the action of the court in permitting the commonwealth's attorney, in his closing argument, to compel accused to stand up before the jury by the side of a state's witness held reversible error.-Balee v. Commonwealth, 156 S. W. 147.

§ 687 (Tex.Cr.App.) Whether a case shall be reopened after the testimony has closed is within the sound discretion of the court.-Cole v. State, 156 S. W. 929.

(E) Arguments and Conduct of Counsel. $ 720 (Tex.Cr.App.) Argument of the prosecuting attorney is not improper where based on legitimate deductions from the testimony.— Wrba v. State, 156 S. W. 1164.

$ 721 (Tex.Cr.App.) District attorney's language, containing only an indirect reference to defendant's failure to testify, held not reversible error.-Pullen v. State, 156 S. W. 935.

al for selling intoxicating liquor in prohibition 8721 (Tex.Cr.App.) Where accused on a triterritory, did not testify, the statement of the state's attorney in his argument that the jury might as well expect accused to testify that he sold intoxicating liquor as to expect a state's witness to so testify was an improper reference to accused's failure to testify.-Jones v. State, 156 S. W. 1191.

§ 722 (Tex.Cr.App.) In a prosecution for breaking schoolhouse windows, argument of county attorney inferentially charging accused with other petty offenses of which there was no charge or evidence held error.-Liner v. State, 156 S. W. 211.

§ 723 (Ky.) While accused's guilt or innocence must be determined from the facts of the lence of crime, it is within the limits of legiticase, and he cannot be affected by the prevamate argument to insist upon the jury doing its duty for the purpose of preventing bloodshed and crime.-Williams v. Commonwealth, 156 S. W. 372.

remarks of a prosecuting attorney, qualified by $ 726 (Tex.Cr.App.) A bill of exceptions to the judge's statement "refused because in answer to argument of defendant's counsel," presents no error.-Holmes v. State, 156 S. W. 1172.

$730 (Ky.) Remark of commonwealth's attorney in murder case that there were nine murder cases on the docket, and that this state of affairs would not be stopped until some one was sent to the chair, held not reversible error. though improper, where the court withdrew it from the jury's consideration.-Williams v. Commonwealth, 156 S. W. 372.

(F) Province of Court and Jury in General.

$741 (Tex.Cr.App.) An instruction on a trial for horse theft held not on the weight of the evidence.-Haley v. State, 156 S. W. 637.

§ 744 (Ky.) Where a second indictment showed, on its face, that it was a continuation of the former prosecution, begun by indictment which had been quashed, and there was no conflict in the evidence on the question, the court

$761 (Tex.Cr.App.) Where the issue was whether beer sold by accused in prohibition territory would produce intoxication, an instruction that beer is a fermented liquor, and that all fermented liquors are intoxicating, was erroneous for failing to leave the issue to the jury.-Jones v. State, 156 S. W. 1191.

$792 (Tex.Cr.App.) In a prosecution for the theft of cattle, where it was an issue whether defendants were so connected with the original taking as to be principals, the jury should have been appropriately instructed thereon.— McKnight v. State, 156 S. W. 1188.

$800 (Tex.Cr.App.) In a prosecution for assault with intent to kill, held, that an instruction on adequate cause without explaining or defining the same was erroneous.-Robinson v. State, 156 S. W. 212.

88 763, 764 (Tex.Cr.App.) A charge given after the jury's retirement, on its request, as to whether it could convict of an attempt to commit theft from the person under an indictment charging theft, which authorized such conviction upon the finding of an attempt in the state and county named and on the date alleged in the indictment, and from the person named as owner held not on the weight of the evidence.-Bell v. State, 156 S. W. 1194.

(G) Necessity, Requisites, and Sufficiency of Instructions.

8770 (Tex.Cr.App.) In a prosecution for the theft of cattle, an instruction that, if they were stolen as charged and found in the possession of defendants shortly thereafter, such possession and the explanation thereof, if any, would be proper for the consideration of the jury in determining the guilt or innocence of the defendants under all the circumstances was objectionable as submitting the defendants' innocence; his guilt being the only question for the jury.-McKnight v. State, 156 S. W. 1188.

$772 (Tex.Cr.App.) In a prosecution for the theft of cattle, where the question of defendants' possession in the county where the indictment was found was fought out before the jury on the facts, a charge failing to submit such issue was reversible error.-McKnight v. State, 156 S. W. 1188.

$779 (Tex.Cr.App.) An instruction that if defendants, or either of them, assaulted the prosecuting witness with intent to kill, to find them, or either of them, guilty of assault with intent to murder, was erroneous; since it authorized a conviction of both, if either made an assault with such intent.-Maldonado v. State, 156 S. W. 647.

§ 780 (Tex.Cr.App.) In a prosecution for burglary, the mere fact that an employé of the owner of the warehouse was employed to feed stock and carried a key to the warehouse would not raise the issue of his authority to permit another to go to it in the dead of night to carry away feed, so as to require a charge thereon.Holmes v. State, 156 S. W. 1172.

§ 784 (Tex.Cr.App.) It is only when the testimony relied on for a conviction is wholly circumstantial that the court is required to charge on circumstantial evidence; and, where there was positive testimony that defendant was the man who committed the burglary, the weight of which was somewhat weakened by cross-examination, no charge on circumstantial evidence was necessary.-Pullen v. State, 156 S. W. 935.

§ 784 (Tex.Cr.App.) Where there had been no difficulty between defendant and deceased, and defendant in a general fight struck deceas

§ 814 (Ky.) A statement by accused to third persons as to how he came to enter the chamber of prosecutrix, which was overheard and testified to by the witness, is not a confession that requires an instruction on the subject of confessions.-Black v. Commonwealth, 156 S. W. 1043.

§ 814 (Tex.Cr.App.) In a prosecution for kidnapping, where the jurisdiction of the offense was in issue and where there was no proof that the channel of the Rio Grande had suddenly changed, there was no error in refusing defendant's requested charge assuming that the river had suddenly changed its course into a new channel.-Nunez v. State, 156 S. W. 933.

§814 (Tex.Cr.App.) Where there was no testimony suggesting that certain parties were accomplices, the court did not err in refusing to submit that issue to the jury.-Holmes v. State, 156 S. W. 1172.

for

prosecution $ 815 (Tex.Cr.App.) In a theft from the person, an instruction held not improper in unduly limiting the defense, in excluding from the consideration of the jury the question whether accused had any money, or whether the money found on him was that won by him in gambling.-Green v. State, 156 S. W. 682.

$815 (Tex.Cr.App.) In a prosecution for the theft of cattle, where defendant explained that he did not know they were in his herd until pointed out, and did not claim them, an instruction that if they were stolen as charged, and defendant was found in possession thereof, such possession and its explanation, if any, might be considered on the question of guilt was erroneous as not submitting defendant's phase of the case.-McKnight v. State, 156 S. W. 1188.

§ 823 (Tex.Cr.App.) An instruction that prosecutrix, on a trial for seduction, is an accomplice and that accused cannot be convicted on her testimony alone unless there is other evidence tending to connect accused with the offense, is not erroneous for failing to charge on reasonable doubt covered by an instruction following. Cole v. State, 156 S. W. 929.

929.

court's main charge.-Holmes v. State, 156 S. W. 1172.

(J) Custody, Conduct, and Deliberations of Jury.

$850 (Tex.Cr.App.) The fact that a deputy sheriff was a witness in a case did not disqualify him from performing his official duty in guarding the jury.-Holmes v. State, 156 S. W. 1172.

§ 857 (Tex.Cr.App.) Where several of the jury after retirement discussed defendant's failure to take the stand in his own behalf contrary to the charge of the court, such misconduct was reversible error.-Huddleston v. State, 156 S. W. 1168.

$863 (Tex.Cr.App.) Under Code Cr. Proc. 1911, art. 754, permitting the jury, after retirement, to ask further instructions, and requiring the court to instruct on the particular point asked, an instruction that the jury could convict of attempt to commit theft from the person under an indictment charging theft from the person, held proper in response to a question as to whether the jury could so convict. Bell v. State, 156 S. W. 1194.

(K) Verdict.

$1020 (Tex.Cr.App.) Under Code Cr. Proc. 1911, art. 87, declaring final a judgment of the county court for $100 or less, on appeal from an inferior court, it is not appealable to the Court of Criminal Appeals.-Corbett v. State, 156 S. W. 206.

§ 1026 (Ky.) Voluntary and unnecessary payment of fines imposed by judgments in prosecutions for illegal sale of liquor, so that the amount of the fine remaining in one case was less than $50, held to require a dismissal of appeals under Cr. Code Prac. § 347.-Eutsler v. Commonwealth, 156 S. W. 855.

(B) Presentation and Reservation in Low

XIII. MOTIONS FOR NEW TRIAL AND IN ARREST.

$922 (Tex.Cr.App.) An exception to the refusal to charge on circumstantial evidence in a misdemeanor case comes too late when made for the first time on a motion for new trial. Schneider v. State, 156 S. W. 944.

§ 922 (Tex.Cr.App.) Error in the charge as given can be taken advantage of in the motion for a new trial.-Holmes v. State, 156 S. W. 1172.

§ 938 (Tex.Cr.App.) Where the alleged newly discovered evidence would only be admissible as tending to impeach a witness and would not be of that force as would probably produce a different result, the denial of the motion for new trial was not error.-Holmes v. State, 156 S. W. 1172.

§ 945 (Tex.Cr.App.) New trial held not to be granted for newly discovered evidence consisting of a witness' testimony that she and accused were together on the evening of the crime, where it appeared that they had separated before the commission of the theft.-Johnson v. State, 156 S. W. 1181.

$ 951 (Tex.Cr.App.) A motion for new trial, had, comes too late.-Kinch v. State, 156 S. W.

filed after the term at which conviction was

649.

§ 956 (Ky.) A new trial, asked for misconduct of a juror, is properly denied, where the affidavit setting up the juror's misbehavior in expressing an opinion failed to show that accused and his counsel did not learn thereof until after verdict.-Black v. Commonwealth, 156 S. W. 1043.

$956 (Tex.Cr.App.) Evidence on the issue whether the jury, before agreeing upon their verdict, had referred to defendant's failure to testify, held to show that a juror's reference to such failure was made after the jury had agreed upon defendant's guilt, though before the fixing of the time of punishment.-Pullen v. State, 156 S. W. 935.

except to any part of the charge given in a § 1038 (Tex.Cr.App.) Where accused did not Cr. Proc. 1911, art. 743, and requested no spemisdemeanor prosecution, as required by Code cial charge, there was no reversible error.Johnson v. State, 156 S. W. 1164.

(C) Proceedings for Transfer of Cause, and Effect Thereof.

14, providing that where the court appoints an $1077 (Tex.Cr.App.) Act 32d Leg. p. 268, § attorney to represent the defendant the official reporter shall furnish such attorney, if convicted, and where an appeal is prosecuted, with a transcript, as provided in section 5, for which service the state shall pay, etc., when construed with section 8, does not authorize the furnishing of a transcript of the evidence to an accused, who was represented by employed counsel.-Jackson v. State, 156 S. W. 1183.

§ 1084 (Ky.) Under Cr. Code Prac. § 336, subsecs. 1, 2, providing that an appeal prayed during the term must be granted, and that a suspension of the execution of the judgment must be ordered, the circuit court must, as matter of right, grant an appeal prayed during the term and suspend execution of the judgment.-Balee v. Commonwealth, 156 S. W. 147.

(D) Record and Proceedings Not in Record.

§ 1088 (Tex.Cr.App.) Where the official stethe court to furnish a transcript, and the court nographer failed to comply with the order of took no steps to compel him to do so, and the stenographer could not comply with the order of the Court of Criminal Appeals because he had lost a part of his notes, the case must be reversed and remanded.-Burden v. State, 156 S. W. 1196.

§ 1090 (Tex.Cr.App.) On appeal in a criminal case, where the record contains neither a statement of facts nor bills of exception, the sufficiency of the evidence to warrant a conviction cannot be reviewed; the testimony not being before the court.-Lane v. State, 156 S. W. 204.

§ 1090 (Tex.Cr.App.) Rulings on evidence can not be considered on appeal, where no bills of exception thereto are contained in the record.-Smith v. State, 156 S. W. 214.

$1090 (Tex.Cr.App.) In the absence of bills of exceptions, objections to the admission and