Lanham v. State

Citations

• 7 Tex. Ct. App. 126

Syllabus

<p>1. Construction oe Statute.—An act of 1879, which contained an “emergency clause,” changed the times of holding the District Courts in the Twenty-second Judicial District; but a proviso in the act required that the first term held under it should be held in C. County, which term in C. County was fixed by the act for the third Monday of September, 1879. Held, that, notwithstanding the “emergency clause,” the proviso operated to postpone any change in the times of holding the said courts until the first term could, in compliance with the act, be held in C. Oounty; and that, in the interim, the antecedent act fixing the terms of the courts remained in force. Braves v. The State, 6 Texas Ct. App. 228, cited approvingly on this question.</p> <p>2. Charge of the Court. — In a trial for murder, the defence asked that the jury be instructed, in effect, to consider no evidence which implied the existence of better evidence not produced or accounted for, and, with this view, to consider whether the testimony of by-standers implied that a certain person who was first assailed by the defendant could, if produced, have given better evidence than the by-standers. He Id, correctly refused, because invasive of the province of the jury; and because, if not a direct charge on the weight of evidence, it was like, if given, to be construed by the jury as disparagement by the court of the evidence adduced.</p> <p>3. Practice. —Objections to the admissibility of evidence cannot be raised by asking instructions to the jury. They should be taken when the objectionable evidence is offered. If, when evidence is introduced, it is found to imply the existence of better evidence, a motion to exclude it is the proper practice; and if the motion was overruled, a bill of exceptions would bring up the ruling for revision on appeal.</p> <p>4. Evidence. — The testimony of belligerents cannot be supposed to be better evidence of what transpired in an exciting rencontre than that of bystanders who w