6 S.W.2d 118 | Tex. Crim. App. | 1928
Rehearing
On Motion for Rehearing.
In view of the able motion filed by the state in this case, we have given our careful attention to each point made and have examined all the authorities cited. We do not think any of them present a case in which the argument complained of was as capable of harm to the accused as in
In this condition of the record we are unable to bring ourselves to believe that the statement of the district attorney, a man in whom the jury had confidence, and who was recognized by them as a trusted public official, in substance and effect that he knew said state witness and had known him for a number of years, and that when the state witness testified to his purchase of intoxicating liquor said district attorney believed him, and that he still believed him, was not gravely prejudicial to the rights of the accused. There was no other testimony in the record to show that the district attorney had not only present but long-continued acquaintance with the witness. As we view the matter, the statement in argument set out in the original opinion in this case had the effect of placing the district attorney, as a witness to the good character and reputation of said state witness, alongside the other witnesses introduced by the state in rebuttal.
We are constrained to believe the motion for rehearing should be overruled, and it is so ordered.
Lead Opinion
The offense is selling intoxicating liquor;, the punishment. confinement in the penitentiary for iy2 years.
The state’s witness, George Norris, testified that he purchased a quart of Choc beer from appellant and that it' intoxicated him. Appellant did not testify.
Appellant’s first application for a postponement was based on the absence of the assistant county attorney, who had been duly summoned as a witness. It was alleged in the application that, if present, the witness would testify that the state’s witness told him he bought the liquor in question from a negro woman. Such testimony .would have been wholly impeaching in its nature. The record shows that no predicate was laid for impeaching Norris. We are constrained to hold that in overruling the application no abuse of discretion on the part of the trial judge is shown. Smith v. State, 100 Tex. Cr. R. 614, 272 S. W. 207.
In his closing argument the district attorney used language as follows:
“I know George Norris. I have known him several years, and when he told me that he had bought intoxicating liquor from the defendant, I believed him and still believe him.”
Appellant timely objected to this argument, and the court instructed the jury not to consider it for any purpose. The general reputation of Norris for truth and veracity was placed in issue. Several witnesses testified that Norris’ general reputation for truth and veracity was bad. Norris was the only witness who testified to the sale of the liquor. The argument was in effect the unsworn testimony of the district attorney that the witness’ reputation in the respect mentioned was good. Such argument was obviously prejudicial and constituted reversible error.
The judgment is reversed, and the cause remanded.
PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.
