The Texas Criminal Reports; Cases Argued and Adjudged in the Court of Criminal Appeals of the State of Texas (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1900 edition. Excerpt: ... did, and Swanner immediately advanced on deceased, and began cutting him with a large, new knife which he had in his hand when he came on the gallery. Defendant, in his own behalf, says: That Will Swanner said to deceased, "You took advantage of me yesterday at your own house, and cursed me and called me a liar." Swanner said something about Willard repeating it, and Willard said he did repeat it, and then struck Swanner with a stick, and then the fight began. He says, however, "I did not know that Swanner had a knife at the time." We think that this testimony, under the circumstances of this case, sufficiently raised the issue of provoking a difficulty on the part of Swanner, and that appellant himself was apprised of the fact that Swanner was the aggressor in provoking the difiiculty. So the charge was not an abstract proposition, as claimed by appellant, but the court applied the law to the facts in that connection. Nor should the court have submitted the words used in connection with the charge. Appellant also urges that the court erred in failing to charge on the law of circumstantial evidence, claiming that this is a case depending on circumstantial evidence for the conviction of appellant. The fact of appellant's going to the scene of the homicide in company with Will Swanner, and his being present at the time, and what he did there, is proved by positive evidence. Of course, a number of circumstances are detailed, both before and after the time, tending to show his malicious intent in being present, but this does not make the case one of circumstantial evidence. The rule is well expressed by Mr. Thompson on this subject, to wit: "Where a criminal intent is to be established by circumstantial...