Mathews v. State , 41 Tex. Crim. 98 ( 1899 )

Appellant was convicted of the theft of cattle, and his punishment assessed at two years confinement in the penitentiary.

Appellant made a motion to quash the indictment on the ground that the description of the property stolen, to wit, "one head of cattle," is too general. This question has been expressly decided against the contention of appellant. Matthews v. State,39 Tex. Crim. 553; White's Ann. Penal Code, sec. 1544.

The first bill is reserved to the action of the court overruling his motion for continuance. Neither the application nor the bill shows whether it is the first or second application. If it is the second application, it does not comply with the statute because the same does not show that appellant could not secure the testimony from some other source than the absent witness. Logan v. State, 40 Tex.Crim. Rep.. Furthermore, in the light of the testimony adduced upon the trial, we do not think any of the absent testimony would have probably changed the result, or that the same is probably true. McAdams v. State, 24 Texas Crim. App., 86; Cunningham v. State, 26 Texas Crim. App., 83.

Appellant's special charges numbers 3 and 5 upon the corpus delicti are not correct enunciations of law, and hence the court did not err in refusing to give them. Nor did the court err in refusing charge number 4 on circumstantial evidence, since the State had proved a confession on the part of appellant.

His fourth bill complains of the closing argument of Jas. W. Swayne, county attorney, in the following language: "The evidence in this case, beyond question, shows that this defendant is the thief, and society is entitled at your hands to protection from all thieves and violators of the law," — to which appellant objected "as calculated to injure his rights with the jury, and to induce them to think that they ought to convict this particular defendant to please society; and defendant asked the court to stop the attorney, and instruct the jury not to regard the same." The court refused to do so, and appellant excepted. We do not think there is any error in the remarks of the county attorney. Furthermore, we have held it is the duty of appellant to present a written charge instructing the jury to disregard such remarks. This was not done. Wilson v. State, 32 Tex. Crim. 22; Norris v. State, 32 Tex.Crim. Rep.; Rahm v. State, 30 Texas Crim. App., 310; House v. State, 19 Texas Crim. App., 227.

In bill number 6, appellant complains of the following: "The county attorney, in his closing argument to the jury, stated ``that it was very strange that the defendant didn't bring some one here to prove something against the character of Jim Keys when Jim Keys had testified in this same case on a former trial thereof,' to which argument of the county attorney defendant then objected on the ground that it was a reference to a former trial of this case," etc. The court explains the bill as follows: "Said statement was brought out by defendant's cross-examination of witness Keys, that he had testified herein before on a former trial, and, the defendant having put in evidence to impeach Keys, the State introduced a number of witnesses showing that the general reputation of Keys for truth and veracity was good in the community where he lived; and the defendant in discussing the evidence, made a vigorous attack upon witness Keys' testimony, and it was in reply to what defendant's attorney had said that the county attorney made the remark complained of." Defendant had proved the fact of former trial. We think the explanation of the court attached to this bill renders the remarks of the county attorney harmless. It appears that State's counsel had been provoked into making the remark by the action of appellant's counsel. We have held heretofore that, where counsel for the State has been provoked to comment upon the failure of the defendant to testify by the action of defendant's counsel, we would not reverse the judgment on this account. Parker v. State, 39 Tex.Crim. Rep.; Pierson v. State, 21 Texas Crim. App., 14; Smith v. State, 21 Texas Crim. App., 277. The evidence supports the verdict, and, no error appearing in the record, the judgment is in all things affirmed.

Affirmed.