*1 lаw-abiding being peaceable reputation man’s citi- zen. rehearing judgment granted,
The state’s motion for aside, judgment of reversal trial court set and the of the now affirmed. dissenting.
DAVIDSON, Judge, I remain convinced of the correctness the conclusion ex- pressed original opinion. in the ought charged
Defendants solely tried for the offense against ought pleading; in the them called not to be against upon rumors, whisperings, defend and insinuations obviously inflammatory. which are hurtful and against only This had to defend not the accusa- against against guilt tions him also but the insinuations of cast upon questions attorney. him the the district holding my
Under the brethren, an accused re- cannot proseсution charged indictment, strict to the offense for the bridle has taken now been off and unlimited freedom prosecute rumors, now conferred tions, the state to insinua- whisperings true, shown contended to be fact. granting rehearing
To the motion for and the affirm- case, respectfully ance of I dissent. Weatherly
James Franklin v. State 28,521. No. November 1956. *2 ap- Crouch, Worth, Pringle, by Doug for and
Crouch Fort pellant. Attorney, Fender,
Hoioard M. District Conard Criminal Worth, Florence, and Attorney, District Fort Assistant Criminal Douglas, Attorney, Austin, state. for the Leon State’s Judge. DICE, burglary, a
The conviction is for with conviction alleged purpose of enhance- of like for the an offense character penitentiary. ment; years in punishment, 12 the appellant state’s evidence was arrested shows pаrked automobile, seated in his across the street while occupied Company in- building by at the the Hancock Paint Magnolia Lipscomb city Fort and Streets tersection Worth. around reflects that arrest was made 1:30 record appellant companions under after and had been
A.M. Matlock, by Baker, Hopkins, and detectives surveillance upon being at the trial as whom testified called witnesses each of by the state.
According testimony, to their is shown that around 8:00 Hopkins Baker located automo- P.M. Detectives and o’clock looking, parked they place at a for which were known bile Place,” gone Belknap they on East After had Street. “Stella’s returned, appellant Matlock and a com- Lieutenant and Stubblefield, got place, Niles came out of the in panion, Marvin car, appellant place then drove to a known as “Ruck’s got Drive-In,” of the car and and the two out went in. The three having automobile, place followed went detectives engaged whereupon Matlock in conver- Lieutenant place, ap- had come out of the detectives After sation. got pellant companion, Stubblefield, out, and his came again car, Appellant stopped and were followed the officers. gone police car on Main After the Street. officеrs had changed automobiles, station and returned observed get three men across the street car was walk the car. The stopped, then driven to Travis who Street the officers following trips were walking behind observed men two make several again
from the car to a house and back. started The car up pulled and was рark- followed the officers until it in on ing hamburger lot at a stand. The officers testified when stopped parking filling car on pulled lot sta- into an old and, vantage away point, tion about a block from this observed get appellant’s automobile, a man out of walk to door paint store, and, pushing door, after on the return to autоmobile; that, *3 go after observed two men then the from building through and door, automobile enter the the Mat- Lt. proceeded lock appellant car and arrested seated alone car; and, according in the Matlock, Lt. time, at such the running appellant looking motor of the car was and back building. toward the store Hopkins Detectives Baker and and building then and, other officers went in the upon entering, apprehended two onmen the inside who were identified as Mar- Harry vin and Huggins, Niles Stubblefield and also discovered lying the contents of the knob of the safe on the floor and a sledge nearby. hammer and bar proof appellant’s state The made of conviction alleged in the indictment. behalf, in his appellant As a witness own that, testified on night question, taking companions he was home, and stopped
that the reason he him because Stubblefield told he was where lived. He further testified that he did not any indication that there have was to night. be a Appellant further offered testimony support of his con- that because of certain tention shelves and paper wall displays store, impossible paint it was for the looking officers from through filling glass plate station windows of the store which to going the door testified see was entered and the men appellant’s from automobile. court, charge, fully in his instructed the jury on the principals. of law accept chose to jury state’s rejected
662 sup- appellant, sufficient that of the we find evidence port their verdict. By appellant complains of Exception Bills of 1 and 2 Nos. counsel, argument jury
certain made state’s counsel wherein argument, juries opening in his guilty, “If convict stated: will newspapers referring maybe stop will to Fort Worth closing Chicago.’ argument, referred and, as ‘Little in his “dangerous by the as a criminal.” is It shown argu- appellant’s objection bills that ment, sustained the court same, and, after jury not to instruced consider again mistrial, instructed overruling appellant’s motion for argument. jury not to consider such injury improper counsel It is rule that remarks ordinarily is the court and obviated when withdrawn argu- disregard only It when the instructed to same. is obviously prejudicial in such reversal ment cases 184, 239; Tex. No. P. the conviction is called for. 42 Jur. Wood- 100, State, 625. land Tex. R. 184 2d v. Cr. S.W. determining improper In whether the effect of obviously prejudicial such a nature as to hurtful surroundings to, cаse looked the facts and must be objectionable statement or such rule where provisions mandatory 42 Tex. statute. does Jur., violate State, 315, 241; Arcos v. 120 Tex. Cr. R. No. P. *4 395; Bushiey State, 128 Tex. R. 79 2d Cr. S.W. S.W. v. 2d 124. obviously argument was not so have concluded that We by jury removed
prejudicial that its effect could disregard the same. to the court’s instruction agree аppellant’s to reference are unable with We Chicago” conveyed a jury seri- as “Little to Fort Worth concerning Chicago in Fort racketeers ous undertone Worth. Chicago major may is one of our judicial take notice that We cities, may ais of racketeers. Nor we view but not that it Harry light appellant’s contention that the statement him, Huggins, implicated a notorious local with was who was implicated notorious had been in a character who underworld newspaper publicity, case, and had received because murder facts. out such not bear record does agree appellant’s with contention also unable to аre We “dangerous state’s counsel’s reference a con- to him as criminal” attempt place stituted reversible error his because it was reputation placed in issue it had not in issue. It is when been by qualification Exception shown court’s to Bill of No. by that such reference made after counsel was by appellant’s сoncerning jury counsel to the be- ing long law-abiding years a citizen number of since qualification conviction. In view of the court’s argu- jury instruction of the ment, court to the not to consider reversible error is this not shown bill. Exception
Bill presents appellant’s No. 3 contention that committed state’s counsel propounding reversible еrror him, cross-examination, following on question: “You don’t might know who police have informed the was there burglary?” abe that, The answered, record reflects question before the appellant’s objection the court sustained thereto, instructed jury same, not to consider appellant’s and then overruled motion for mistrial. In view оf the court’s instruction to the not to consider question, perceive we asking no reversible error in the mere
of the same as appllant’s the record does not bear out conten- tion that previously court had sought ruled to be elicited inadmissible and that question was asked state’s counsel in bad faith. judgment is affirmed.
Opinion approved by the Court.
DAVIDSON, Judge, dissenting. holding my brеthren that of state’s require does not counsel reversal of the conviction constitutes prosecuting attorneys say, a license to all argument, any- thing long they please, so as what is said statutory violates no because, by I holding, mandate. such no penalty is making any argument, affixed *5 for when the trial court improper argument nоt to consider the instructs forgotten all is is a liberty and state’s counsel to make the same error again. and over over argument of state’s counsel is ought
If the such that it not jury, permitted by the to and to be remain with to be considered ought fact made in the first instance. The it not to have been wrong it that the was withdrawn that was shows should not have been made. was instant case
That the state’s counsel wrong apparent. been made is and should have appel- then, escape that there is no from the conclusion
So law. accordance accorded fair trial with lant has not been argument, My attempt justify the but do not to brethren injured thereby appellаnt was not hurt or because that consider it. jury was instructed not to light this of that conclusion: record Let us examine Worth, upon testi- of Fort whose Peace officers of burglary rests, mony that a was information conviction had driving the automobile was to committed be burglary. In information to used in the view of be suspected parties under keрt the automobile and officers watching standing by parked surveillance, automobile going house the automobile to the parties to and from and the parties part on the of the showed of which and conduct —all acts burglary suspected to and was was about be being consummated. process of from the safe in had beеn knocked until the knob
Not take burglary did the building had been effected officers and the burglary. any action relative suppress prevent the commission made to No effort was every had reason to believe which the officers committed. effort, pre- the least could used have Had the officers crime, prevented suppressed burglary, vented building. property inside the The con- injury the owner’s is that leaves one conclusion —which the officers but duct of completed rather permit offense to occur they preferred occurring. prevent than duty suppress peace place officers law Does the of crime as well as of detеction prevent the commission committed? has a crime been after
665 wilfully any 415, C., provide officer if Arts. P. upon him imposed negligently any duty perform to or fails shall be he of Procedure Penal or Code Criminal Code peace offi- “officer,” used, includes as there punished. The term peace Art. officers. 50, are policеmen Art. C. P. All cers. C. 36, P. C. C. then, im- duties are material, ascertain what
It to becomes Procedure: posed upon peace of Criminal officers Code duty of 37, P., peace officer is under Under Art. C. C. warrant, interfere, pre- to preserving peace and to without P., every peace offi- suppress By or crime. Art. C. C. vent being duty committed prevent an offense cer is under the against to his presence or within property another view. officers, violating here, guilty the statutes
That the were appears They an to knew that mentioned me to be obvious. made no effort offense was about to be committed prevent failure As a commission thereof. result duty, dо their the offense of was committed and damaged. property of Had killed another the offenders burglarized premises knocking the owner of the instead of safe, deceased knob from blood of that would have been prevented upon that kill- their hands because could have doing. ing duty under the were so question naturally arisеs to what effect failure as duty upon
of the do their has for determina- officers to the issue tion here.
Ordinarily, the mere one an fact that knows that offense nothing prevent about to committed and does does be accomplice person an make that committed. That offense rule, however, imposed applied duty there is no where suppress person prevent crime. duty preventing
Where, here, are under the officers doing, so crime and do not do and violate law not so entirely presented. question is different accomplice pre- here
Whether officers were witnesses not, problem. time, I am at this called new and sents uрon difficult I do know —that the failure of the officers to to —but violating duty, law, resulted in their failure war- do which scrutiny rants close of their and of their motives necessity, the case. Of such facts must considered in order *7 argument requires determine whether the of state’s counsel a reversal of the conviction. According to the exceptiоn, bill of counsel said in state’s
opening argument jury: “ ‘If maybe Juries guilty, newspapers will convict the the ” stop referring Chicago.’ will to Fort as Worth ‘Little implication argument The first juries in this that have is convicting not been guilty, the a result as of which the news- papers Chicago.” have referred to Fort as Worth “Little The implication second apрellant, that the jury if would convict charged who the guilty, state probably newspapers was referring Chicago.” stop would third Fort as “Little Worth implication newspapers fact, referred, that had Chicago” to Fort as “Little of the verdicts Worth because juries. arguments clearly implications and the thereunder were beyond, of, by outsidе not warranted evidence in case, giving constituted by of unsworn counsel. It is little wonder that promptly the trial court sustained appellant’s objection argument jury instructed disregard it. closing argument
In complained of, the other and which counsel appellant “dangerous for the state referred to a criminal.” Counsel could not еffectively have more testified before jury statement, than he did that which unsworn was testi-
mony part, dangerous appellant on his that was a criminal. There were no conditions made to that statement counsel. Nowhere did he that such was a deduction from reasonable expression opinion upon the evidence or аn of his the evidence. unqualified The whole effect statement counsel jury acquitted that if theory believed defensive “dangerous appellant setting would criminal.” free jury evidence that had There before been felony. to that conviction once before convicted of As not jury could very trial to tell the court was careful guilt. appellant’s prior evidence conviction as consider appel- Notwithstanding charge, such a utilizing “dangerous had the effect lant was a criminal” appellant’s jury evidence conviction as before the guilt. sustained
Again, the trial court there is little wonder that jury objection instructed the to that consider it! argumеnt, place ought not, by way of Counsel for the state are facts, circumstances, which and conditions before not be law- could to the accused which harmful and hurtful fully proven *8 during the trial of placed before legally is, mind, only sound but my case. Such statement distinguished right concept justice and is a basic of of done wrong. cannot be It is automatic. That which indirectly. directly done cannot be argu- legitimate transgresses the state of bounds When Withdrawing
ment, ought punishment out. some meted be punish- jury is no from the consideration of nothing in with- all, adequate. such There is ment at let alone of tend, least, prevent a recurrence in the drawal that would fixed argument. punishment no similar If there be the same or nothing command ob- rule, there violation servance of the rule. may long bounds the state transcend as counsel for So just punishment, legitimate argument, fear of without
long to so do. will continue the ar- Here, this court admit trial and also court made, but wrong not have been
guments and should made were therefor. рunishment inflicted no ap- facts, my
Notwithstanding brethren all these inflammatory and unwarranted injured pellant was not only by rankest sort arguments counsel. It ap- at, for may arrived such a conclusion speculation that to the crime penalty assessable pellant the maximum received believed, which, if face of evidence this —and innocence. showed respectfully I submit that was not accorded impartial a fair and trial under the law. I dissent from the affirmanceof this case.