Parker v. State , 39 Tex. Crim. 262 ( 1898 )

HEHDERS OH, Judge.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail; hence this appeal.

Appellant assigns as error the remarks of the county attorney made during the argument of the case. The bill shows as follows: “The county attorney, in his opening argument to the jury, stated that the defendant had not placed a single witness on the stand. Counsel for defendant, in his argument replying thereto, said that the county attorney had said that the defendant had not placed a single witness on the stand, and defendant’s counsel, continuing, said that it devolved upon the State to make out a case against the defendant before he was'required to offer any testimony; that the defendant might sit there with his lips hermetically sealed, and refuse to place any witness on the stand, unless the State made out against him a case. Counsel for the State, in his closing argument, said: 'Counsel for defendant says that the defendant is not compelled to open his mouth. That is true. The State can not compel him to testify.’ ” Appellant objected to these remarks of counsel, and the court explained the bill as follows: “The county attorney, in his first argument, did not refer to the defendant not having placed a witness on the stand, the matter being raised first by counsel for the defendant, and the remarks of the county attorney were in reply to the statements made by the said counsel for the defendant. Upon objection of counsel for defendant to the remarks of the said attorney, he, the said county attorney, immediately informed the jury that the State had nothing upon which to rely for a conviction except the evidence in the record before them.” The statute on the subject of authorizing a defendant to testify on his own behalf expressly declares that his failure to testify can not be used against him; and this court has reversed a number of eases on account of such allusion by the district and county attorneys. However, it seems in this case that counsel for defendant had himself brought the subject up, and stated that appellant “might sit there with his lips hermetically sealed, and refuse to place any witness on the stand, unless the State made out against him a case.” How, the fact that the State’s observation that the defendant could not be compelled to open his mouth was but a reply to the suggestion of appellant, brought the failure of the defendant to testify no more prominently before the jury than it had already been made by remark of appellant’s own counsel. We hold that when appellant brings this matter to the attention of the jury, he can not complain if the State, in reply, remarks upon his suggestion. This case is not like the case of Hunt v. State, 28 Texas Criminal Appeals, 149. Here appellant’s counsel stated that his client could sit there with his lips hermetically sealed. The State replied to this, “Yes, he can not be compelled to testify.” Immediately the court interfered, and the county attorney then stated to the jury that appellant was only being tried on the record. In the Hunt Case there is some question whether defendant’s counsel alluded to the failure of his client to testify. A witness for the State had testified to admissions of appellant, and the district attorney had discussed the same. In reply thereto appellant’s counsel stated, “You have not appellant’s statement here.” This may have referred to a perversion by the witness as to the appellant’s admissions; but, conceded that defendant’s counsel made a vague suggestion as to this matter, the district attorney insisted on making an argument on appellant’s failure to testify, and insisted on reading the act of the Legislature on the subject. Although admonished by the court, he could not be restrained, and in reply asked the court if he would allow defendant’s counsel to sing that same old song, and not allow the State to reply. The language of the court used in that decision is very broad when it says “that no argument made by the defendant’s counsel could or would justify the district attorney in alluding to or commenting upon the evidence in violation of the plain letter of the law,”—broader than was necessary for the decision in that case. Here, as stated above, there is no more reference on the part of the State to the failure of the appellant to testify than a mere reiteration by the State of what appellant’s counsel had said; no suggestions made to his prejudice, and no theory insisted upon by the State as furnishing a reason why appellant had not testified. In what transpired we fail to see any possible injury that could have ensued to the appellant. We believe in the rigid enforcement of this statute, but, when appellant himself brings forward in the argument the defendant’s failure to testify, a reiteration of this by the State will afford no ground for reversal. On this subject we can not agree to the rule laid down in People v. Tyler, 36 California, 522. A number of cases hold that an error of this sort is cured by an instruction by the judge to disregard the allusion, but it is not necessary to pass upon that question here.

Appellant insists that this case should be reversed because the venue is not proved; and he urges that the agreement shown in the statement of facts does not cover the venue. We disagree with this contention. The information alleges that the violation of the local option law took place “in a subdivision of the county of Hamilton, State of Texas, to wit, the town of Hamilton as incorporated for public free school purposes,” and then goes on to set out the metes and bounds of said town so incorporated. The admission of defendant is in the following language: “It is admitted by the defendant that local option was legally in force in the town of Hamilton at the date of the alleged offense.” This admission was evidently to obviate the necessity of proof of venue, and, in our opinion, fully covered that question. In our opinion, the evidence fully supports the verdict. It is true that the party making the purchase did not recognize the defendant, and did not identify him as the party from whom he made the purchase, but he did identify the place; and the State then proved that Tom Woods was not in Hamilton on October 16th, the day of the alleged sale, but was in Dublin on that day, and that defendant, Buck Parker, was his only clerk on August 17, 1897. The alleged purchaser asked for whisky at appellant’s place of business, and in response to his request a bottle of what had the appearance of whisky was sold him. He paid for the same, and we think that these facts circumstantially show that the liquid was whisky, and whisky is a known intoxicant. The judgment is affirmed.

Affirmed.