Taylor v. State , 50 Tex. Crim. 560 ( 1907 )

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

Bill of exceptions number 1 complains of the following statement in the argument by the county attorney: "I am well enough acquainted with this class of niggers to know that they have got it in for the race in their heart, and in their hearts call them all white sons of bitches." Defendant then and there, in open court, objected, and asked the court to reprimand the county attorney, and to admonish him against the use of such references to the defendant, to which the court only replied, "You can have your bill of exceptions," and failed and refused to reprimand the county attorney.

Bill of exceptions number 2 complains of the following statement in the argument of the county attorney, to wit: "The only punishment you can give this negro bully is to end his earthly career; if you send him to the penitentiary it will not reform him; he has been in the penitentiary for assault to murder and it has had no effect on him, and he goes out the first thing and gets a big six-shooter and goes to killing; he has been tried in the penitentiary, and that does no good, and you must not give him another chance in the penitentiary, for if you do he will watch his opportunity to kill the guards and escape." The language of the county attorney in his argument to the jury, as disclosed by these two bills of exception, was highly inflammatory and prejudicial of the rights of appellant, and the court should not only have reprimanded the counsel, but should have charged the jury to totally disregard such argument. The penalty in this case, as above stated, was death. Here we have the county attorney demanding of the jury that they should not consider whether the facts authorized murder in the second degree or not. He states in his argument that it would do no good to confine appellant in the penitentiary, as he would kill the guards and escape. This is not legitimate argument; in fact, no argument at all. As to what appellant should do in the penitentiary or would do, even conceding that he would kill the guard, which there is no evidence in this record to indicate, would not be a legitimate basis for forming a conclusion as to whether or not he was guilty of murder in the first or second degree. The defendant is entitled to a fair and impartial trial. The counsel should confine his arguments to proper and legitimate deductions of the evidence adduced upon the trial of the case. We apprehend that the facts in this case give as little excuse for resorting to extraneous matters to prejudice the jury as most cases that are tried in the courts of this country, but here we have the county attorney resorting to race prejudice; in the first instance, to extort from the jury a death penalty, and in the second instance, we have him using the fact that the defendant had been previously confined in the penitentiary as a reason why he should not be again confined. The fact of appellant having previously been in the penitentiary was admitted by the court for the sole purpose of testing the credibility of the appellant as witness in his own behalf. It was legitimately admissible for this purpose, and could not legitimately be used for any other purpose. The court so informed the jury, in his charge, yet the county attorney uses the fact of previous incarceration in the penitentiary as a basis for concluding that he should be hanged now since his previous incarceration had not reformed him. It is true, no special charges were asked, but, nevertheless, in the light of this record this argument is so highly prejudicial as to exclude every other reasonable hypothesis than that it was prejudicial to the rights of appellant. It follows, therefore, that the court erred in not granting a new trial to appellant, on account of the argument and statements of the county attorney. Powell v. State, 70 S.W. Rep., 218; Fredrickson v. State, 70 S.W. Rep., 754; Robbins v. State, 11 Texas Ct. Rep., 560.

Appellant also objects to the following charge of the court: "The fact that defendant has served a term in the penitentiary for assault to murder cannot be considered by you in this case for any other purpose than affecting his credibility as a witness, and you are directed to consider it for no other purpose." This charge should have stated that the jury may consider it for that purpose, but he should have informed the jury that having admitted it for that purpose alone, that they were merely authorized to consider it for that purpose alone, if they thought it did affect his credibility.

Appellant further objects to the charge of the court in that it failed to charge the jury that they were judges of the facts proven, and of the weight to be given to the testimony. Article 766, Code Criminal Procedure, lays down the proposition that the jurors are the exclusive judges of the facts proven and the weight to be given to the testimony. The following authorities hold that it is reversible error not to give said charge. Weatherford v. State, 31 Tex.Crim. Rep.; Jackson v. State, 21 Texas Crim. App., 442; Barbee v. State, 23 Texas Crim. App., 199; and Wilbanks v. State, 10 Texas Crim. App., 642. However, all of the above cited authorities were rendered prior to the amendment of article 723, Code Criminal Procedure, which provides that we shall not reverse a case unless the error complained of is excepted to in motion for new trial, or by bill of exceptions, and shall not reverse it then unless the error was calculated to injure the rights of appellant. Without discussing the question as to how far the latter article changes the rule laid down in the cases cited, we will suggest that upon another trial the court properly charge the provisions of this statute in this case, and would further suggest that it would be better to do so in all cases. For the errors, discussed, the judgment is reversed, and the cause remanded.

Reversed and remanded.