Marshall v. State

Appellant was convicted of murder and his punishment assessed at ten years confinement in the State penitentiary, from which judgment he prosecutes this appeal.

We do not deem it necessary to discuss those bills of exception which contended that the court erred in overruling his application for a continuance, and in refusing to grant a new trial on account of newly discovered testimony. The testimony will not be newly discovered on another trial, and if he desires the attendance of the witnesses on account of whose absence he sought a continuance, and those whom he says will testify to matters of which he was unaware, he can secure their attendance on another trial by proper diligence.

The most serious matter complained of in the record is presented in a bystander's bill. It is made to appear that the court refused to approve the bill as presented to him without qualifying same. This bill as qualified appellant refused to accept, and proved up his bill by three witnesses under article 2067, Revised Statutes. The trial judge did not, as the law provides, when counsel would not agree to the corrections or qualifications, make out and file a bill setting forth the matter as viewed by the judge, but all we have in the record is the bill as proven up by appellant. The district attorney did not controvert this bill by filing controverting affidavits in the court below, so the bill is before us uncontested. It is true the district attorney had written a letter to the Assistant Attorney General, which was filed with the papers, in which he contends that the bill does not correctly quote his language, but this we can not consider. The law (art. 2067) has provided the way in which such contest must be made, and as no contesting affidavits were filed we must take the bill as presented in this record as correctly presenting the matter. In the hill it is shown that during the closing argument of the district attorney he said: "It is passing strange that in every murder case that the defendant invariably brings in testimony and attacks the reputation of the deceased for peace and violence, and in this case they hare thus attacked the dead man's reputation. Under the law, the State cannot put in a defendant's reputation by evidence before the jury, unless the defendant himself invites it by attempting to show a good reputation for peace and violence, which this defendant has not undertook to do, and he dare not do it, for we would be able to show that his reputation for peace and violence was not good but bad, and the jury already had enough before them about his being drunk and being tied to a tree at a picnic where his neighbors had assembled together to enjoy the day among themselves to let the jury know that the defendant's reputation for peace and violence is not good but bad."

While it is true that defendant took the stand as a witness, he did not put in issue his reputation as a peaceable and law-abiding citizen. It is contended that as there was evidence in the record that on a prior occasion at a picnic he was drunk and was tied to a tree, this furnished some basis for the remark used. Unfortunately for the State's contention, however, the record discloses that while the district attorney did attempt to get such testimony admitted, yet appellant's objection thereto was properly sustained by the court, and such facts were not admitted in evidence. At the time of this alleged occurrence appellant was not even acquainted with deceased; it was some seven years prior to this difficulty, and even if he was drunk on that occasion and was tied to a tree by the sheriff, if such testimony had been admitted on the trial of the case, over objection of appellant, it would have been in and of itself such error that would necessitate a reversal of the case under the evidence before us. This question is discussed very thoroughly in Wright v. State, 63 Tex.Crim. Rep., and it is held that such testimony is inadmissible, and on another trial there should be no effort made to get such evidence before the jury. Appellant was on trial charged with killing Virgil Westmoreland. Any and all facts and circumstances connected with that affair, or that would shed light on the action of the parties, should be admitted, but acts of improper conduct on the part of appellant, if he was guilty thereof, which involved no moral turpitude and in which deceased was in no way connected, should not be sought to be injected in the trial. But had such evidence been in the record it would not have justified the district attorney in saying that, "If the defendant had placed his reputation for peace and violence in issue, which he dare not do, he (the district attorney) would be able to show that his reputation forpeace and violence was not good but bad." Had the State offered sworn testimony that the reputation of the appellant in that respect was bad, when he had not put his reputation in issue, the court would not have admitted it, and if sworn testimony would not be admissible, certainly the district attorney ought not to be permitted to state to the jury in his closing argument that he could have proven his reputation was bad if he had been permitted to do so. In Johnson v. State, 17 Texas Crim. App., 565, the court held in an opinion by Judge White, "it was error to permit the prosecution to investigate defendant's general reputation as a `law-abiding man' when he had not put it as such in issue." In Guajardo v. State, 24 Texas Crim. App., 603, Judge Hurt says, "The admitting of such testimony when defendant has not placed his reputation in issue, whether intended or not, is an outrage upon the rights of the accused." In Felsenthal v. State, 30 Texas Crim. App., 675, Judge White reiterates the rule, "Until a defendant in a criminal case has himself put his character in issue, the State has no right to introduce testimony showing his bad character." The citation of authorities could be continued down to the present day and it has been uniformly held that evidence of reputation of bad character for peace is inadmissible unless it is an issue in the case under some of the well known rules of law. When the remarks of counsel dehors the record will and when they will not be ground for reversal of a case is ably discussed by Judge Ramsey in the case of Davis v. State, 54 Tex.Crim. Rep., and the authorities reviewed, and it may be said to be there correctly held, that when counsel in his argument states and discusses some fact which had not been proven, and which it would not have been permissible to have been proven, which is calculated to be hurtful and harmful to the person on trial, the case should be reversed. In the American English Encyclopedia of Law, vol. 5, p. 352, it is said: "The court should not tolerate argument of counsel outside of the evidence impeaching or fortifying the character or credibility of a defendant or witness in a case," citing authorities from almost every State in the Union, among them being the Davis case, supra, and other cases from this court, and cases rendered by the Supreme Court and the Courts of Civil Appeals.

The complaint that the court erred in submitting the issue of murder in his charge is without merit. The evidence offered in behalf of the State authorizes a submission of that issue, and would sustain such a verdict if the jury so finds. Neither was it incumbent on the court to define the meaning of the words "reasonable doubt." It has been frequently held that the language of the statute needs no amplification or attempt on the part of the court to enlarge or explain them. Thompson v. State,37 Tex. Crim. 227; Hurley v. State, 35 Tex.Crim. Rep.; Fury v. State, 8 Texas Crim. App., 471; Massey v. State, 1 Texas Crim. App., 563, and other cases cited in section 934, White's Ann. Procedure.

The other bills in the record, in our opinion, present no error, but on account of the errors hereinbefore pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.