Flores v. State

MORROW, J.

This conviction was for the unlawful sale of intoxicating liquor in territory where the sale thereof is prohibited. The penalty assessed was confinement in the state penitentiary for three years.

[1-3] In the attached opinion the conclusions reached are acquiesced in, except that with reference to the complaint of the argument of the prosecuting attorney. This officer used the following language in his argument to the jury:

“If you don’t convict the defendant in this case, I am going to have you all indicted and sent to the penitentiary for perjury.”

The court, on objection by appellant to the impropriety of this argument, verbally stated that he sustained the objection. He failed to reprimand the attorney making the argument, and subsequently refused a special charge, prepared by appellant, instructing the jury to disregard it. The right of argument, its scope, and the consequences of its abuse, have been the subject of many discussions in the opinions of this court. It is a privilege accorded by the statute. The Supreme Court, acting under a provision of the Constitution permitting it to make rules for the government of the district court, has imposed the duty upon counsel to confine their arguments strictly to the evidence and argument of opposing counsel, and upon the court to exercise his authority in the enforcement of these rules. Rules 39, 41, and 121, Supreme Court. The purpose of these rules is to insure a fair trial, and to maintain the dignity and decorum of the court. Willis & Bros. v. McNeill, 57 Tex. 465. 1 Thompson on Trials, p. 814, § 965, says:

.“The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the causo, both as to the law and the facts, is unabridged. The range of discussion is wide. In his address to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of the parties; to impugn, excuse, justify, or condemn motives, so. far as they are developed in evidence, assail the credibility of witnesses when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. To this freedom of speech, however, there are some limitations. His manner must be decorous. All courts have power to protect themselves from contempt, and indecency in words or sentences is contempt. This is a matter of course in the courts of civilized communities, but not of form merely. No court can command from an enlightened public that respect necessary to an even administration of the law without maintaining in its business proceedings that courtesy, dignity, and purity which characterize the intercourse of gentlemen in private life.”

Our Supreme Court, in the case of Thompson v. State, 43 Tex. 274, said:

“Zeal in behalf of their clients, or desire for success, should never induce counsel in civil causes, much less those representing the stato in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments based upon any other than the facts in the ease and the conclusions legitimately deducible from the law applicable to them.”

[4] The lapse of time has not marred the wisdom of this statement. It is as pertinent to the trial to-day as it was apt at the time it was uttered. Argument such as that quoted in the bill calls for rebuke by the trial judge. 1 Thompson on Trials, § 958, p. 801; Willis v. McNeill, 57 Tex. 465; Burrell v. State, 62 Tex. Cr. R. 636, 138 S. W. 707; Jenkins v. State, 49 Tex. Cr. R. 457, 93 S. W. 726, 122 Am. St. Rep. 812; Crawford v. State, 15 Tex. App. 501; Rushing v. State, 62 Tex. Cr. R. 311, 137 S. W. 372; Brailaford v. State, 71 Tex. Cr. R. 114, 158 S. W. 541; Hatch v. State, 8 Tex. App. 416, 34 Am. Rep. 751; Crow v. State, 33 Tex. Cr. R. 264, 26 S. W. 209; Brazell v. State, 33 Tex. Cr. R. 333, 26 S. W. 723; Henry v. State, 30 S. W. 802; and Hemphill v. State, 72 Tex. Cr. R. 644, 165 S. W. 462, 51 L. R. A. (N. S.) 914, wherein the court expresses regret that it is again called upon to reverse the judgment upon the sole ground of improper argument. The ruling in this court is that where an argument is improper and likely to result in injury to the appellant, which injury may be avoided by an instruction to the jury, that-the failure of the court to so instruct the jury upon request of appellant requires a reversal. Branch’s Ann. P. C, § 362, and cases cited. And it is held that, if an argument is of such a nature as to be obviously hurtful and prejudicial, it will result in reversal, even though an instruction to disregard it is given. Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966. The threat oí the district attorney to cause the indictment of the jurors for perjury if they acquitted the accused, it would seem, would come within the class disclosing obvious injury; at least it was such a breach of the decorum of the court and offense against its dignity as required rebuke; it was such a blow at appellant’s right to have his case tried on its merits as to demand its withdrawal by special charge on request of appellant.

The verdict assessed the extreme penalty authorized by the statute for the offense. In what measure it was brought about or influenced by the threat of the state’s representative is a question that cannot be answered, but the facts relating to it are such as to require this court, out of respect of its own interpretation by previous decisions of fundamental and statutory rights of the accused to a fair trial, to order a reversal of the judgment.

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