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State v. Chisnell, 36 W. Va., 659. 566 State v. Davis, 69 N. C., 495... 405 State V. Doe, 139 Pac. Rep.

(Kan.), 1169 ...259, 291 State v. Elliott, 41 Texas, 224.. 325 State v. Flagg, 25 Ind., 243. 405 State v. Francis, 88 Mo., 557... 436 State v. Gannon, 75 Conn., 206. 653 State v. Graham, 62 Iowa, 108.. 566 State v. Grier, 88 Atl. (Del.), 579.... .250, 259, 283, 286, 291 State v. Hall, 7 Blackf. (Ind.), 25

406 State v. Harrison, 145 N. C., 408. 566 State v. Haywood, 1 Nott & M.

Sutton v. State, 2 Texas Crim. App., 342

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Stubblefield v. Stubblefield, 45 S. W. Rep., 967..

479

585

Swancoat v. State, 4 Texas Crim. App., 105

505

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405

Sykes v. State, 53 Texas Crim. Rep., 165

514

263

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405

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153

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436

Mex., 391

153

Terry v. State, 3 Texas Crim.

194

App., 236

152

482

(S. C.), 546...
State v. Hobbs, 40 N. H., 229... 405
State v. Howard, 35 S. C., 197.. 566
State v. Intoxicating Liquors, 94
Me., 335

State V. Intoxicating Liquors,
101 Me., 430...
264
State v. Jenkins, 64 N. H., 375.. 275
State v. Killeher, 201 Mo., 614.. 566
State v. Marshall, 47 Mo., 378.. 405
State v. Mumford, 1 Dev. (N.
C.), 519
State v. O'Connell, 99 Me., 61.. 275
State v. Oregon, 39 Ore., 90..
State v. Taylor, 119 S. W. Rep.,
373

State v. Texas Brewing Co., 157
S. W. Rep., 1166..
State v. Towler, 13 R. I., 661... 585
State v. United States Exp. Co.,

145 N. W. Rep. (Ia.), 451.259, 291
State v. Yewell, 63 Md., 120.... 206
State v. York, 74 N. H., 125. 275
State v. Young, 74 Vt., 478..... 566
Staten v. State, 32 Texas Crim.
Rep., 33
172
Stearnes v. State, 21 Texas, 692. 507
Steele v. State, 19 Texas Crim.
App., 425

Taylor v. State, 35 Texas Crim. Rep., 97

Testard v. Butler, 20 Texas Civ. App., 106

Texas Brewing Co. v. State, 157

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TEXAS CRIMINAL REPORTS

OCTOBER, 1914.

J. W. WHITFILL V. THE STATE.

No. 3179. Decided June 24, 1914.

Rehearing denied October 14, 1914.

1.-Burglary-Theory of Defense-Charge of Court.

Where, upon trial of burglary, the defendant claimed that he purchased the alleged stolen property from an unknown party, and the court in his charge and by defendant's requested charge submitted this theory of the case, there was no reversible error on that ground.

2. Same-Continuance Second Application—Alibi.

Where, upon trial of burglary, the defendant claimed an alibi and asked for a continuance on this ground, but did not allege in the application that the absent witness would swear that the co-defendant who turned State's evidence was at a certain place at the time of the burglary, but simply alleged that the witness would swear that when she heard of the burglary that defendant's co-defendant was at her house, and it was hardly probable that the alleged absent testimony would have been any more definite than that which was introduced on this point during the trial, there was no error in overruling defendant's second application for continuance, as the testimony was merely cumulative. Following Harvey v. State, 35 Texas Crim. Rep., 545.

3.—Same—Evidence Other Indictment-Argument of Counsel.

Where, upon trial of burglary, it was permissible for the State to show that another indictment for felony was pending against the defendant, for the purpose of affecting his credibility, it was not proper for State's counsel to say in his argument that this was a strong circumstance to show defendant's guilt in the instant case; however, as no special charge was requested withdrawing this argument from the jury, and the court instructed them in the general charge that they could not consider the indictment of the other case for any other purpose than to aid them in determining the credibility of the defendant as a witness, there was no error.

Appeal from the District Court of Ellis. Tried below before the Hon. F. L. Hawkins.

Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

W. H. Fears, for appellant.-On question of argument of counsel on other indictment: Davis v. State, 54 Texas Crim. Rep., 236; Taylor v. State, 50 id., 560; Jenkins v. State, 49 id., 457; Smith v. State, 55 id., 563; Rodriguez v. State, 58 id., 275; Adams v. State, 47 id., 347.

Vol. 75 Crim.-1.

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