Citation Numbers: 1 Tex. Ct. App. 494
Judges: Ector
Filed Date: 7/1/1877
Status: Precedential
Modified Date: 9/3/2021
The defendant was indicted at the October term, 1876, of the district court of Webb county, for the robbery of one Ambrosio Rodrigues, on the 1st day of October, 1876, in Webb county, and tried on the 12th day of October, 1876, when a verdict of guilty was rendered by the jury, who assessed his punishment at three years’ confinement in the penitentiary. There was a motion for new trial, which was refused by the court, and an appeal taken by the defendant.
The counsel for the defendant assigned the following errors:
“ 1st. The verdict of the jury is contrary to the law and the evidence.
“2d. The court erred in overruling defendant’s motion for a new trial.
“ 3d. The court erred in restricting defendant’s counsel, on the trial of this cause, to less than two addresses to the jury, as shown by defendant’s 1st bill of exceptions.”
The 1st and 3d assignment of errors are the reasons which were set forth in defendant’s motion for new trial. The entire evidence in the case we will give in this opinion. Ambrosio Rodrigues (the person alleged in the indictment to have been robbed) testified “that on the 1st or 2d of October of this year (1876), in the city of Laredo, Webb
All we deem it necessary to say as to the 1st error assigned is that, if the jury believed the testimony of Rodrigues was true, this assignment is not well taken.
We will now proceed to notice the 3d error assigned. The record shows that, after the testimony in the case had closed, the county attorney, for the state, made the opening address to the jury, and he was followed in a speech by the counsel for the defendant; that the county attorney then addressed the jury; and that then the counsel for the defendant again commenced to address the jury, when he was ordered by the presiding judge to desist on the ground that before the commencement of the argument he had not notified the court of his desire to make two speeches to the jury in the case. The court would not allow the counsel for the defendant to again address the jury. The defendant’s counsel mainly relies on this ruling, which he claims is an error in the action of the court below in refusing to permit him to make another speech to the jury. In fact, this seems to be the only point on which he relies for a reversal of the case, and is the only one discussed in his brief. In support of his position that his right to make two speeches in the case was a legal one, secured to his client by law, of which the court could not lawfully deprive
“ Art. 3050. When a criminal cause is to be argued the order of argument may be regulated by the presiding judge; but in all cases the state’s counsel shall have the right to make the concluding address to the jury.
“Art. 3051. In prosecutions for felony the court shall never restrict the argument to a less number of addresses than two on a side.”
It often occurs that more than two attorneys on a side ■desire to address the jury. In order, therefore, to prevent them from consuming too much of the valuable time of the ■court, and yet not deprive the defendant of a fair trial, the legislature saw proper to confer upon the presiding judge the right to restrict the argument to two speeches on a side in prosecutions for felony. It was never the intention of the legislature to confer upon the defendant or his counsel the power of having two speeches in his defense if he had only one counsel. If the court has the power to restrict the speeches to two on a side, and if, in regulating the argument, he is required to give the state’s counsel the opening .and concluding address to the jury, then the defendant, to avail himself of the right of having two speeches on his side, must have two counsel to defend him, or, if he has ■only one counsel, then he and his counsel must both make .a speech. It would be nonsense to say, if he had only one ■counsel, that this counsel should make a speech, announce that this was his first speech, then announce that he would make his second speech, and proceed to do it. The construction put upon these two Articles (3050 and 3051) by the courts of the country has been too long and too well
The state’s counsel, in his opening speech, should fairly develop his case and give the law on which he relies. The presiding judge should require him in all cases to do this. If he failed to do this until Iris second speech, the presiding judge, in his discretion, would be authorized to let the defendant’s attorney again address the jury, and then to allow the state’s counsel to close the argument.
We will admit, however, for the sake of the argument, that our construction of Article 3051 is not correct, and still, we think, if the counsel for the defendant in the case at bar intended to claim the right to make two speeches in the case, he should have notified the court of his intention before the commencement of the argument to the jury. On his failure to give such notice the court would properly conclude that he had waived this right. Certainly it would • be too late for him to assert his right to make two speeches to the jury after the state’s counsel had concluded his argument. It is not pretended that the state’s counsel did not fully and fairly, in his first speech, present the law and facts upon which he relied for conviction.
It is insisted, in substance, on the part of the defense that, as there was but one witness to the alleged act, and that one the party ‘ ‘ pretending to have been injured,” the accused was at the mercy of any statement the witness should make, and that the counsel for the accused had solely to rely upon the manner and appearance of this witness before the jury, in testifying, to refute his statement, and that the defendant was entitled to every opportunity or suggestion which might occur in two addresses in his behalf to comment on the appearance and manner of witness in delivering his testimony, and thus impress the jury with the belief that this witness had made an improbable story, and
We believe that the defendant had a fair trial by an impartial jury, and that he was not deprived of any legal right on the trial by the action of the court below.
The judgment of the district court is affirmed.
Affirmed.