Goldman v. State

In his motion for rehearing appellant requests us to again consider his bill of exception number one complaining of the argument of one of State's counsel, and insists that the construction placed upon said bill in our original opinion is not in consonance with the record, when considered in its entirety. After a further consideration of the question we have reached the conclusion that appellant's position is correct. It must be borne in mind that the evidence shows that R. J. (Whitey) Rutledge had been to various places in the State and out of it in response to efforts of appellant and others to keep the witness from being placed under process to testify in certain criminal cases. The witness had returned to Longview, Texas, and from that point left for Louisiana in company with other parties in a car belonging to appellant. Bill of exception number one reads as follows:

"Be it further remembered that in the closing argument for the State, Mr. John Storey, a private prosecutor employed by Mr. J. C. Hunter, made the following argument to the jury: 'They came to Gregg County and went down here to Longview, right here in this town, to his sister's house to take a little nap and lo and behold he hadn't been there long enough to get his nap out until here comes Bill Anderson and he said I want you to get out of this country, we've got to get these cases thrown out. All right, he takes him again; he says I've got to go down and get the boys together and get some money together, stay together so you can leave here. What happened? He went down there. What did Wilks say? He said when I took him to Bill Anderson's house that night he asked him to go down to Bill Anderson's to be down there; that Harry Goldman and Sol were getting Harry's car ready to go.' At this point Mr. Storey turned and faced the defendant who was seated only a few feet from the prosecutor and extending his arm in the direction of the defendant and pointing his finger directly at the defendant, Mr. Storey made the following remarks: 'And Mr. Goldman, that car the man testified about you, about here, was yours, the testimony shows it was yours. What were you loaning him your car for?' Be it further remembered that the defendant remained silent and did not answer the question. At which time counsel for the defendant objected to such argument in writing for the reason that by the prosecutor turning around and asking the defendant questions was a comment on the defendant's failure to testify and was an attempt to make the defendant testify in the case."

The record shows that R. J. (Whitey) Rutledge, Woodrow Rutledge and A. A. Wilks had testified to facts which, if true, left no other conclusion than that appellant was furnishing the car in which Whitey Rutledge was again leaving the State for the purpose of avoiding service of process in the criminal cases mentioned. It is true that he was accompanied by Sol Goldman (a brother of appellant) and Hayes, neither of whom were called as witnesses either by the State or appellant. The case of Hyde v. State, 68 S.W.2d 200, cited in our original opinion as supporting the conclusion then reached, contained the following argument:

"They did not put on any proof of any extenuating circumstances, and there is no proof of his right to carry a gun."

We think the opinion that the argument there complained of did not refer to the failure of appellant to testify, but to the failure to produce testimony, was correct.

A case pointed out by appellant as being more nearly in point as it relates to the argument here complained of is McClure v. State, 95 Tex.Crim. Rep., 251 S.W. 1099. In that case State's counsel seems to have pursued the tactics used in the present instance and addressed his argument not to the jury, but to the defendant. He referred to him in the second person, and asked where he went and what he did on a certain occasion, and if he talked to anybody or saw anybody, and so forth. Such questions directed to defendant on trial was held to be a comment on the failure of defendant to testify and in direct violation of Art. 710, C. C. P. It is true that in the present case Hayes and Sol Goldman might have testified to facts from which the jury might have drawn a conclusion as to the reason appellant was furnishing the car for the removal of the witness from the State, but nobody save appellant could absolutely know what was in his mind at the time he so provided said car. Giving the language complained of in the argument the fair construction which the record seems to call for it was equivalent to saying, if not directly saying, to appellant in the presence of the jury "the record in this case shows the reason you furnished your car was to remove this witness from the State in order that he might avoid the service of criminal process. If this conclusion is not true, what have you to say in regard to the matter in explanation of your conduct under the circumstances?" The method of argument employed in the present case is never commendable and always dangerous. Remarks of counsel should be directed to the jury and not to the accused. We regret the necessity of reversing cases for argument, but we have become convinced from a further consideration of the matter that the present instance furnishes a violation of the mandatory provision of Art. 710, C. C. P., which expressly provides that the failure of defendant to testify in his own behalf shall not be "alluded to or commented on by counsel in the cause." This court has had occasion many times to call attention to the effect of violations of this mandatory statute, notwithstanding which the Legislature has not seen fit to modify it in any particular, and this court has no option but to give it effect. For further support of the conclusion now reached see Sanders v. State, 123 Tex. Crim. 409,59 S.W.2d 1116.

Appellant also urges in his motion for rehearing a matter which was not briefed or argued upon original submission, and which was not considered at the time our original opinion was prepared. It is urged by appellant that the charge upon accomplice testimony is incomplete. The charge was as follows:

"You are instructed as a matter of law that R. J. (Whitey) Rutledge, Alfred A. Wilks, Woodrow Rutledge and T. A. Sharps are accomplice witnesses. You are further instructed that you cannot convict the defendant on their testimony or the testimony of either of them unless you first believe that such testimony is true and that it shows the defendant is guilty as charged in the indictment and even then you cannot convict the defendant upon such testimony unless you further believe that there is other testimony in the case corroborative of the accomplice testimony tending to connect the defendant with the offense committed, if any, and the corroboration is not sufficient if it merely shows the commission of the offense."

It is appellant's contention that the testimony of none of the accomplice witnesses made out a complete case against appellant and therefore the court should have added to the charge given the following "and unless you find and believe beyond a reasonable doubt from all the evidence that the defendant is guilty you should acquit him." We do not express ourselves upon the point as to whether the testimony of the accomplice witnesses, if true, makes out a complete case against appellant, but in view of another trial call attention to the fact that this court has frequently suggested that where a complete case is not made out by the testimony of the accomplice witnesses it is proper to incorporate in the charge on accomplice testimony an instruction, the omission of which is complained of here. It is appellant's contention that the omission was specifically called to the court's attention by the exceptions to the charge of the court and by his special requested charge number six. We refer to the following authorities for the holdings of this court in regard to the matter. Spears v. State, 102 Tex.Crim. Rep.,277 S.W. 142; Anderson v. State, 95 Tex.Crim. Rep.,254 S.W. 986; Schleisinger v. State, 121 Tex.Crim. Rep., 50 S.W.2d 319; Lightfoot v. State, 80 S.W.2d 984.

Appellant's motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.

Reversed and remanded.