*1 Purcell v. The State. original jurors opinion, other stated in our five testified As they who heard no reference the failure of the said that notwithstanding testify, they defendant fact were present during jury all the in retire- discussions while ment. testimony gentlemen
There of the three is suggesting above misconduct than that referred other testify, the failure as above the reference to of the set out. That this was reference” held in but a “casual reversal, cases not to call a There was no dis- evident. nothing appears remotely cussion mаtter of the to indicate upon jurors the reference made had effect two acquittal. Nothing who appears making plausible were for it jurors that one attribute two should to the who were for acquittal, each of whom testified said that the remark whatever, mentioned had no effect them a falsehood in stating. so
Appellant holding contrary still insists that our to that juror Boozer v. 82 Tex. 72. that case a retirement, stated being while the were in if he tried for the murder of his wife he would have taken the jurors stand in his own defense. sworе that this state Three ment was made. Under the facts of that case held that the failure testify of the accused did enter into the consider ation jury. showing Giving No such jurors is made here. effect trial, what the three it swore in instant reasonably juror charge reading sure as the Hill was part warning he came to that to consider of same testify, the fact failure constituting the remark a to such failure and in that reference charged connection himself them not said that court had jurors it consider such fact. Each testified was not of sаid discussed or mentioned thereafter. rehearing
The motion for will overruled.
Overruled. J. C. The State.
No. June 1925. 8723. Delivered Rehearing 23, 1926. denied June Murder—Evidence—Cross-Examination—Properly Excluded. 1.— Where, murder, on a witness on cross-examination state gave present on a that he was admitted trial, objection sustaining there was no of the state 104 Texas Criminal Court [June knew, question, trial, time
further
case .was
being
something
tried. The
that one knew
so
alone
about
that
a
fact
*2
case,
testify,
credibility
would
and he
called to
not affect
was
his
when
Distinguishing
State,
1157,
called
a later
Rice v.
103 S.
аnd
trial.
W.
State,
Tex.
402.
Dina v.
46
Crim.
Injury
by Court —No
Shown.
2.—Same—Remarks
controversy
Where, during
for the
a
between counsel
state and defend
admissibility
appellant’s
insanity,
testimony,
as to
the
in the
the
of
over
ant
court
referring
opinion
court,
remarked,
to
former
a
incorrect,
Appeals
very
case: “I think the Court of Criminal
was
same
ruling,”
charge
afterward,
to their
in his
we will
bow
and
but
the
them that declarations
have
remark,
and
told
instructed
them
to consider
further
his
Appeals
the
the Court of Criminal
of
constituted
Distinguishing
land,
presented.
supreme
error
is
and correct
the
no harmful
law of
State,
State,
Rep. 52;
Tex.
ble
v.
85
Wallace v.
Grib
Rep. 300;
State,
44
v.
4. — Error. insisting appellant, the trial counsel for was Where court ordered who objections, arguing court, seat, upon with take on his his contempt, to do so he was fined for while the court’s his refusal action bring may unwarranted, cannot have been we to believe ourselves matter, presented the as to court as error was require Distinguishing State, v. Texas a reversal. Robertson 38 187; State, 825; State, 786; S. W. House v. 57 W. Echols v. 170 S. State, 778; (Mo.) v. 192 S. W. v. 225 State S. Walters Davis W. and Warren S. W. 575. Exception Qualified 5.—Same—Bill Error Shown. —As —No appellant complains, exception, Where in a bill refusal permit questions, below the witness to answer certain qualification to the bill court’s states was told expected witness, appellant court as to what was from this accepted qualifications bill, presented. no error Insanity 6. Error Shown. —Same—Evidence—On —Nd appellant Where stated facts based, thought appellant crazy, wanted v. The State. from, refusing him, get away error allo.w the there no to witness In insane. words in so to state his people crazy, ordinary language speak insane and vice versa. we as —Same—Continued. 7. state, permitting material cross- Nor on was there witness, complaint him if ever filed a
examination of this against to ask he had being crazy. appellant for Exception Admission of Evidence —No Error 8.—Same—Bill of —To Shown. appellant objected Where to the introduction of a certain letter state, signed offered which was and his wife and deceased, ground addressed to the was immaterial irrelevant, shown no error far as can bill. as tell may mental condition. light shedding have been offered a circumstance *3 9. Insanity Properly —Same—Evidence—On Received. — appellant issue, insanity, Where had raised on his trial the of there laying predicate, permit error in state, was no the rebuttal in the deputy regаrd testify sheriff and sheriffs to in connec- kangaroo tion with the jail, court which been carried in of judge, which the for the state who permit was the nor a gave sane, it as his testify as to appellant prior what occurred between himself and to the homicide, when he went to house arrest him. —Same—Argument 10. Counsel —No of Error Shown. state, argument Where jury, appellant counsel for ground insanity, among defended things complaint other said: you going get asylum,’’ “How are him in is which made, necessarily injurious does not to us seem to contain matter rights to of the Distinguishing Weige accused. State, v. 81 Tex. Rep. 479.
11.—Same—Continued. Complaints arguments always light must appraised be in the particular the facts in a might A case. statement which a call for might regarded another, reversal facts. in one case be not so on different reversal, To demand particular argument under the facts improper, must not be injure rights but must be calculated accused, injury must be such that an instruction to the argument not to consider accomplish would ineffectual in the object. ment Rep. See Todd 93 Tеx. Crim. 553. Also see C., page Branch’s Ann. P. 204.
ON REHEARING. —Same—Argument 12. Insanity of Counsel—On Issuer—Not Reversible Error. argument is well established rule that where is to, withdrawn, resorted but or the court not instructs same, ordinarily consider injury cured, has been and it will . 104 Texas [June Criminal Court injurious impossible appears legally error, unless it
held reversible argument or the withdrawal could have been removed effects prosecutor private instant instruction. objection discussing insanity was withdrawn issue rehearing jury, present error, motion a reversible and the for does is overruled. County. Appеal of Hill Tried below from the District Court Porter, Judge. the Hon. Horton B. before murder, years twenty Appeal penalty from a conviction of penitentiary. in the 279. appeal-in this case. 256 S. W.
This the second See opinion. sufficiently facts are stated the former Hillsboro, Cogsdell, Collins, Dupree James & Crenshaw of P. appellant. Attorney, Lyles, Stinson, D. and Robert M. Sam State’s Attorney, Assistant State’s State.
LATTIMORE, Judge. Appellant was convicted the Dis County murder, punishment fixed trict Court of Hill and his twenty years penitentiary. appeal This is in this case. S. the second See 256 W. opinion. sufficiently
279. The facts are stated this trial admitted on cross- On a witness for state given testimony present he had not been examination that *4 knew, at the counsel asked him he trial. Defense trial, being tried. at on it was so the time case was objected The material. To the court’s state this was not objection exception sustaining reserved. action in was No such any appears. suggestion at the witness No is made that him, inquiry known to proper concealed the facts time case, that facts had as in the Rice 103 S. 1157—or W. unfavorably might arisen the former trial which reflect since upon give testimony, was the case failure to and as 402, State, Rep. are Dina which cases v. 46 Tex. Crim. knew some- cited The fact alone that one brief. testify, thing called to about a that he was not credibility would not at later trial. affect his when called appel- Baldwin, Mrs. Hattie of deceased and sister of widow lant, insanity. question was a defense witness on the she is which shown that she testified incidents based her time of conclusion at the insane 1926] 641 v. Statе. she was asked cross-examination relative On homicide. by her, named admitted that she each incident so things. people do On redirect examination she seen sane these predicate said that she did not her single any incident, on on Defense
insane but all them.
counsel then her asked as follows:
“Q. get you I with will what the facts are refer- to state least, your opinion, part ence to at whether based upon June’s the time manner and demeanor conduct at things these ^on happened, various it is or whether based alone you detailed,” replied: instances which which she things “I special think it is on as well based those one —that any as other.” point At this said: state’s counsel suggest pertinent “It is for counsel to witness predicates insanity. way proper an ask the everything they detail have in mind.”
Whereupon following defense counsel statement: made before, very question “That is the Frazier raised which Mr. very question passed Court which
Criminal Appeals sustaining assignment as Mrs. testimony. Winn’s They incorrect held Mr. Frazier was about it.”
In reference thereto the learned trial very “I Appeals remark: think the Court Criminal incorrect, ruling.” Exception but we will have to bow to their court, was taken to this remark of the Art. C. our State, State, 52; Rep. C. P. Gribble v. 85 Tex. Crim. Wallace 1161, Rep. 300; State, Rep. Tex. Davis v. 143 S. W. supporting and Deason v. are cited S. W. appellant’s contention. We think none of them do in fact support any it. If the remark of the court related to testi mony, given by trial, it was that Mrs. Winn at a former exceptions is not bill shown time at during gave testimony this trial Mrs. to which Winn such application. permit remark could have This court does not for, by remarks, its decisions to be affected however uncalled may regarding opinions be made in connection with its court, trials in the lower unless such remarks be made *5 time rights and in such manner as that of the defendant are, may thereby. on trial or been All the cases have affected cited show or upon questions comments of fact court pertinent law testimony on issues material the case then on trial. do not think of the remark We this the effect 104 Texas Criminal Court {June objected by the court here to. -also note We that
charging instructed the court below them not to con- remark, and further them that sider told declarations Appeals supreme constituted the Court Criminal correct law of state in criminal cases. just large applies we have measure to bill of
What exceptions out No. wherein is set the fact the learned judge attorney told defendant’s would fine him contempt for made further reference to what the Court .he bill, Appeals of -Criminal learn from the held. We just discussed, sets out the same as the bill that a matters answered, question had been asked and and that after such given by answer had been a statement was made state’s coun- objection, sel the nature of an to which counsel by replied Appeals reference to what of Criminal Court regard upon appeal had said in a former of this to this thp asserting question by the same asked answered appellate witness was held admissible appeal another than the one in reference to witness the court. No now on the stand. There was before given by motion had been made to have making objection to an of an answer withdrawn. already given nothing. There was no for amounts to occasion court with the discussion of the remarks of the trial reference Appeals. Appellant’s counsel Court Criminal discussing holding Appeals not of Criminal Court testimony, offered with reference to matter of > question. already witness had answered the We are not judge could held inclined to believe the remark of prevented appellant’s us under the circumstances to have referring discussing opinions properly cоunsel from presented, our concern of this court. As the matter is might ruling the court could or whether the acts and rights injury reasonably been calculated to cause to. might appellant. further remark do not think so. We supposed counsel and the difference between defense jury could have not which the court was over a matter integ- character, imputed any believed or reflection standing attorney rity as an or honor of said counsel. His about thereby affected. was not attacked or time, it is point practice really at the material in con- impossible zeal of eliciting pres- tending position to the extent *6 643 v. The State. 19261 place jail a threat ence of from the court to him in contempt might favorably impressed jury. for — any charge given special instructing event the not to any pay may counsel, attention to what the court have said to withdrawing remark, telling and and further them what by Appeals supreme was said the Court of Criminal was the cases, and correct law in criminal would seem to obviate possible evil effect.
Bill No. 5 recites the same matters are set out in the two bills, preceding counsel, persisting and that defense further taking being exception bills after directed to take by court, was fined seat the sheriff directed $25.00 jail, appearing judgment to take counsel to presence order of the court were entered out of the regard jury. legality judgment Our views in contempt Crenshaw, 587, Rep. in Ex Parte 259 S. W. and in line with what we there said further refer to 2d. Law, Ed., Bishop 252, 9th Sec. wherein are found person statements the effect that no to should be molested judge doing respectfully anything presence for right do, the trial court which has a to mere attorney party fact that an for persists before the court addressing being examined, though court while a witness is desist, contempt. admonished does pith not constitute exception ordering under discussion at this time jail contempt under the circum disparagment stances constituted such censure attorney by of said the trial court as vitiate should the verdict proposition trouble, in this case. The free from not very satisfactory. Appellant the authorities found are not State, 187; Texas, State, cites Robertson v. House v. 57 S. Rep. State, 825; Rep. 786; W. v. Echols 170 W. S. Walters State, Davis, Rep. 778; (Mo.) 192 S. W. State v. 225 S. W. Rep. and Warren v. 259 W. We can S. 575. bring agreement Judge not ourselves in with the Ogden in the case named wherein the court’s .first proceed theory seems to reverse the case would way punish wrongful 'proper be the trial for his during contempt acts. For committed imprisoned
counsel were over after after trial was they They brought had filed motion for new were triаl.
jail argue and ordered the court said motion new They exception, being brought took an but trial. whether [June Court Texas Criminal argue it, motion, being required to or argue out prepare given opportunity time or they were because argue appear. to us that seems it—does *7 rights the of the accused question was —were involved real conduct, question the court’s in the case affected rendering considered at all appear to have been in does case, supra, was reversed for the acts opinion. House the right to denying the the examine in to of the court light evidence, opinion the sheds no demonstrative case, appellant’s supra, that here. In Echols issues rulings ignoring persisted the of the court in counsel had hasty temper remarks lost his and made the court case, was the matter follow when that is the but as often case, supra, ground In held not sufficient for reversal. Walters’ reflection on was deemed a what was said the trial court credibility was deemed an extent as the of a witness to such In the Art. 787 P. of the forbiddance of C. C. a violation case, language to supra, of the court Davis the delay the impute purposeful of counsel held to him a was by resorting and was deemed suffi methods integrity attorney. cient to affect as an Warren’s language the supra, a comment on court used held to be the analogous weight us of the These do not evidence. Dallas, also note that cases to etc., one now before us. We McAllister, Ry. the manner 90 S. Co. W. coupled with what reprimanding counsel
tone court in said, as refleсtion on counsel he were held to constitute such jury. prejudice The statement of his case with the that counsel put the fact court was held to before . Nothing agreement open court had violated an tone of bill under the manner or discussion shows colloquy was not courteous. After the court’s statement Appeals, the court of Court Criminal refusing, upon his directed his seat and defense counsel to take jail. continued to address ordered him to Defense counsel ,to again speak the court under court and told was penalty in that connection of fine. The court further said carefully kindly he had asked counsel to be seated. We analyzed unable we and are sifted and this matter as best can honor, integrity, anything char to find that reflects merely insist standing acter counsel. He was right was ing exception and the court to state his insisting he must be have his bill but that that counsel could v. The State. declining insisting seated, upon counsel be seated and court, making the court announced that statements contempt. matter, punish for In this would counsеl he case, supra, indicated our Crenshaw right. not, however, legally can
bring the error the court in the ourselves believe require a case. matter was such as to reversal point proceedings appears that indicated the court again recessed, up taken below and when case was fined, morning counsel, present next who had been during proceeded the remainder the trial. It can not be deprived presence said that assistance counsel, application and there presеnted immediately continuance which was adjudged guilty contempt. after said counsel *8 exceptions Appellant’s bill of No. 7 fails to show a refusal questions of the court below to let the witness answer certain out, contrary presents therein plain set but on the direction things to the witness to detail those on which she based her appellant qualification conclusion that A insane. to bill further states that was told the court toas what testimony expected this witness answer to such questions. below, holding
We do not think the action оf the court that witness who had what detailed occurred between him appellant, and who further stated in that connection that thought appellant from what was said and done he to be crazy get away materially wanted to from him —was declining opinion erroneous in allow to to the witness state his appellant ordinary in so words that was insane. In language crazy versa, speak people we of insane vice opinion and we are of that the statement the witness that thought appellant crazy sufficiently he set forth his belief opinion that he was insane. exceptions
Bill of No. 12 sets forth that the witness last referred thought crazy, appellant testified he that required was asked and to answer on cross-examination that any against he complaint being had never filed crazy. regard objection do as of materiality. exceptions objection bill No. 13 to a cer-
tain rebuttal, objection being letter offered state that it irrelevant, was immaterial and because it was [June Texas Criminal Court already evidence, being priоr written it to a contract
written merged that the letter was into the contract. asserted The signed by appellant letter was wife and addressed to deceased, may far as can tell and as from the bill shedding light appellant’s been offered circumstance as a mental condition. testimony deputy regard the sheriff and sheriffs with kangaroo appellant’s which connection with court' jail judge,
been carried on in might of which he forming be admissible as the basis for the question insanity. said witnesses on the qualified they part bills are with the fоrmed statement predicate admission said along objectionable deem this line. Nor do we it gave appel- a witness for it as his the state who sane, testify lant was was allowed to to what occurred between prior him and when on an occasion homicide struggle went to him house arrest and had a with him pistol. over a argument exception
There are three bills of to the of state’s length counsel. Bill No. 23 sets an out some excepted exception which was an to in full but taken argument, to a statement is as сontained follows: you get asylum?” being going “How are con- him attempt tended this constituted influence an regard against return a verdict their conviction question insanity, theory turned him *9 get loose, asylum. do jury him in the not no other could subject objection particular thus statement the think this made, get you going in question, him “How are the asylum,” to be the which is stated made, argument out, complaint is only part set of the necessarily injurious any matter does not seem to us to contain rights of the accused. argument complained Bill 21 is much like of in No. Thе 479, Weige case, Rep. appearing the Tex. Crim. that though Weige objectionable. quite case was reversed not case refused several errors. The trial court objec argument jury the deemed not to consider the instruct supporting and, tionable, opinion, the evidence in the as stated argument strong, was said insanity theory being the the In the case open complaint directed thereat. the us to be insanity, regard the evidence of now before we do not so us v. The State. case, viewing the court this also we observe the differently Weige’s court from what the below did in matter case, jury promptly not supra, instructed consider the unlikely by argument, deemed and in such case us that Complaints argument arguments was harmful. must light always appraised particular in the the facts in a be might call for A statement which reversal one case. regarded
might in another on not so different facts. To be argument reversal, only must not demand a facts, as, particular but such under was calculated to rights injure accused, injury must be such jury argu not as that an instruction tо the to consider the ment, accomplishment ineffectual in the would of that object. 553, Todd 93 Tex. Crim. authorities distinguishable readily cited. The instant case Weige case, supra, cogency matter of the evidence supporting insanity, the issue of and also because prompt suppressing argument action of the instructing jury it, to consider view of which distinguishing characteristics we think ourselves not called on anything Weige to reverse because said in the case. What just complained said about the matter of in bill exceptions applies equally No. 21 to a similar com plained of in bill No. wherein it the court objection also sustained the and instructed the argument. consider page Mr. Branch on 204 of his supporting Annotated P. proposi C. cites authorities sition that obviously unless the remarks of state’s counsel are impair rights of a improperly nature of defendant or prejudice jury, remarks, though case before the improper, will not be considered sufficient for reversal unless charge instructing disregard them was asked refused, exception and an reserved.
Finding record, judgment no error will be affirmed.
Affirmed. ON MOTION FOR REHEARING. Judge.
LATTIMORE, raised in matter *10 rehearing given motion for which has us concern is our argument prose decision with private reference to the of the complained cutor exception of in bills Nos. 21 and 22. If it argument erroneous, be conceded that said it must be {June 104 Texas Criminal Court that, jury court instructed the the trial not to in mind
borne purpose argument same; also that of said consider ground jury acquit insanity. not to to induce the reveals the fact of the record the testi- Examination theory insanity mony appears support to fаll judgment cogency call for far which seem to a short of twenty such who had favorable to issue. Some witnesses years, and appellant many some of them of his known all sanity. life, his He was a married man and testified to during, ways business in usual to have transacted hand, all, appel- three if not life. the other On mind; not of sound lant’s sisters testified that also basing witnesses, opinions latter their three other slight jury who had apparently Also a doctor sat on a facts. charged composed at a time when of six doctors offense, opposition no with when there was another insane, opinion appel- testified that him declared lant was insane. jury’s pass province to on fact trench on the
We do not citing pertinent well matters issues but are these argument rule that where resorted established jury withdrawn, instructs or the to but cured, same, ordinarily injury and it has been consider when, by under this court held reversible will legally pos- does not the circumstances injurious referred to effect of the sible by or instruction. the withdrawal could been removed satisfy charged with crime is оn one The burden insane, testimony that he is preponderance defense, support of when the such be the altogether unlikely that theory appears make it such as to justified in plea, we feel accepted such a would have determining whether taking fact into consideration instruction, argument complained of spite of court’s brought that which otherwise different about a verdict conclude under not able to resulted. are would have argument was so error of said case that facts withdrawal. cured its it could not be serious as rehearing will be overruled. motion for TJie Overruled. Judge. Presiding dispo concur in MORROW, I do write not care exception but do 21 and sition of bills in the case.