*1 492
Manuel Perez v. State 34,631. May 30, 1962 Rehearing Motion for June Overruled MORRISON, Judge, dissented. Henley
T. P. Wine, Antonio, Russel appellant. B. San Lieclc, Jr., Charles Attorney, J. Fink, Criminal District Norma Attorney, Antonio, Assistant Criminal District San and Leon Douglas, Austin, Attorney, State’s for the state.
BELCHER, Judge. marihuana; punishment, conviction for the salе of years.
twenty-five Officer Lucero testified that about 9:10 P.M. he observed talking appellant moving from one table to another in Chico, Club and when walked out towards the rest building followed;. in the rear room of the he spoke that he as passed appellant, stopped tаlking he who had and was to an- person, passing using and while heard them he terms which indicated weed or marihuana. Officer Lucero came rоom, again When out of the rest he spoke anything asked him if on, language meaning anything
which was if there was for sale in you do replied: “How much Appellant the form of marihuana. gave the Lucero Then said “about want?” Lucero $2.00”. cigarettes. gave Officer *2 appellant him four аppellant and the $2.00 Bureau, and Rosas, Narcotic the notified Detective of Lucero four marked said presence in the of еach Lucero and Rosas the placed cigarettes purposes them for identification department. police lockеr the of evidence analyzed and cigarettes were four was offered that the Proof to contain marihuana. found any in his testify evidenсe
The did not or offer behalf. punishment
Appellant the under insists that the evidence by twenty-five years jury and excessive assessed the is cruel cannot be sustained. may pun-
Any person for of marihuana be convicted the sale five by penitentiary for not less than ished years confinement in the 23, 725b, nor more than Art. V.A.P.C. life. Seс. punishment prescribed The assessed was the limits within precludes necessity any law. This on the further consideration ground punishment the that the and exсessive. 16 Texas was cruel 19; State, 2d 2d Jur. Sec. v. 734. Garcia S.W. urges
By Exception One, appellant Formal Bill of error No. prosecutor’s argumеnt opening jury because of the to as fol- the lows: dispute any
“In hasn’t this case there at all in the been testimony.” statement, objection
At thе time of such was made and no no appears assigned During reason or is for failure. such further argument, subject which did not refer to matter in the thе above statement, quoted appellant objected the as follows: just object argument
“Now a minute. I line of to that as impropеr prejudicial, may please it the court.” overruled, objection exception
The was but no was reserved. any upon argument. No mоtion of kind was made the basis of such appellant’s objection The court certified that he considered argument preceding was dirеcted to the immediate instead of testify. not No quoted. statement above did presented. error is Two, Three,
In Formal last contention in Bills Nо. Four, complaint No. certain to the is also made of attorney. the state’s The court these bills that no certified in objection made, request a instructed nor be it, Therefore, not to consider or a motion a mistrial. these show no error. bills Exception Four, appellаnt
In Bill of contends that attorney making state’s committed error in state- opening argument jury: ments in the “Now I when leave this court room I am back down my office, my to and it intention to letter Chief write *3 Bichsel, who is the of of Chief Police the Antonio Police San * * *” Department, time,
At objectiоn: this the made the object argued “I am being to to this extraneous matter jury, may please court, before the it the not reasonable deduc- tions on the evidence.” objection request
The was sustained. No made to instruct jury disregard the to the or for a mistrial of because argument, it. This sustaining in view of the court’s in action the objection, shows no error.
By Exception Five, Bill Formal of claims that by prosecuting attorney closing error was the committed in his argument when he stated: go living.” try “He won’t to work and to make an honest argument, appellant objected Tо such the because it was im- prejudicial. The proper objection, court sustained the in- disregard jury the to the attorney structed remarks оf the state’s any purpose for and not to consider them whatsoever in their deliberations. the remark of pre- shows counsel immediatеly bill complained
ceding the statement was: turning, can he so keep get it stuff and “He wants to money pocket.” in his put some more remarks. objection to these no There was the argument quoted and the In of the evidence view court, trial no adequate prompt instruction to error is shown. reversible support the conviction. to
The evidence sufficient period a imprisonment be The sentence orders that twenty-five years. It is re- nor more than less than two of not twenty- years than nor more than five formed to read “not less punishment years being for the years”, the maximum five five charged. offense reformed, judgment is affirmed. As Opinion approved the Court. dissenting. Judge,
MORRISON, trial court to exception fаilure of the Bill No. 5 reflects the grant prosecuting attorney stated to a mistrial after the go try argument, (appellant) to work in his “He won’t living.” of еvidence make an honest There is not scintilla *4 support the record to this statement. 111, State, Rep. 571, 2d Sparks 261
In v. 159 Texas Cr. S.W. stating error prosecutor reversible held that the committed we selling appellant possessed purpose marihuana for the that no evidence in thе record it to school children where there was support such a statement. 721, State, Rep. 124, In Texas 261 2d Kirk v. 159 Cr. S.W. helped prosecutor’s statеment to the he had we held the that error where there was out of other trouble reversible support in the record to the same. no еvidence bar, prosecutor injected harmful In the case at new and rights highly prejudicial were facts into the case which damaging told the one because he of the most charged against any crime, pieces one with as I of evidence see 496 professional
it; i.e., and had no criminal the accused was occupation. respectfully I dissent. Thrift Bedell v. State
Clifton 34,720. June Nahas, Houston, Jr., appellant. M. Gаbriel Briscoe, Attorney, Robertson, Jr., Frank H. District Samuel Delany, Attorney, Robert E. Houston, Assistants District Douglas, Attorney, Austin, Leon State’s for the state. Judge.
MORRISON, maliсe; years. punishment, The offense is murder without midnight night Mrs. ques- Moers testified that at on the in tion an she was awakened between two men which taking place street in front of her house at 1619 Weber Street, running in a moment men both started down the during down, exchanged street and fell which time blows were participants up porch which one of the came on her and fell. notified, police lying were deceased was found on Mrs. porch
Moers’ dead from a stab wound in heart. *5 testimony appellant’s questioned shows father was thereafter, injuries indicating found to have soon sustained fight, custody that he had been in was taken into and admitted having engaged fight in a deceased on (at Johnson Street