Crawford v. State , 15 Tex. Ct. App. 501 ( 1884 )

Hurt, Judge.

We have examined all the grounds relied upon by the appellant for a reversal, and are of the opinion that none are well taken except that which is contained in the third bill of exceptions.

From this bill it appears that E. E. Hannay closed the argument for the prosecution, and in his closing remarks he turned to the defendant and said: “You black thief, you are a thief, a thief as blacK as hell itself.” Then, turning to the jury, he said: “Gentlemen, if you don’t convict this man you had better throw open the jail doors, tear down our court houses, and burn up our law books; because if you acquit such men, and that is to be the law in Waller county, people will flock to Waller county from North and South Texas to become thieves. All good men in Waller county know this man ought to be convicted, and it is your duty to do so. I feel an interest in this case, and want to see this man convicted.” To which the defendant then and there objected, to which the court replied: “I will give you a bill of exceptions * * * .” To this bill the leafned judge presiding appends this explanation: “I do not remember the foregoing to be the precise language used by R E. Hannay, one of the prosecuting attorneys, but in the main it is correct.”

Whether tÜe appellant was white or black certainly had nothing whatever to do with his guilt. If black, he had a right to demand a fair trial, just such a trial as is intended by the law to he given to any and all of the citizens of this'State. That he was a black thief, or a thief at all, was the turning issue in question, and, instead of denouncing appellant as such, it was the duty of counsel representing the State to attempt to prove him a thief from the law and evidence introduced on the trial. This colored man’s mouth was closed; his counsel had made his argument, and had no chance to reply. Was it proper, right or just for counsel, in the closing argument’, to thus attack, the defendant? We think not.

The consequences flowing from a failure to convict this negro, to Waller county, if the attorney be correct in his prognostications, may be terrible indeed. For it would be a dire calamity, truly, for all those living in Forth and South Texas, who purpose to engage in the avocation of theft, to flock to this county. But certainly these consequences to this county were not foreseen by defendant when he stole the plow and harness, if he is guilty of the, theft. Defendant is very unfortunate in presenting a case before the jury, in which a wrong verdict would entail such fearful consequences to his county.

How the learned counsel ascertained that all of the good men in Waller county knew that defendant was guilty, or should be convicted, the record does not inform us. What had the knowledge and opinion of all the good men in the county to do with this case?

Under our Code, the citizens of this State are not bound by the knowledge and opinions of good or bad men, unless the knowledge and opinions were ascertained from them on' the witness stand. And we are of the opinion that to thus appeal to the knowledge of all the good men of Waller county, in order to secure a conviction of defendant, was wrong, and we will not sanction a verdict obtained by such methods. Bearing upon all the matter objected to by the defendant which appears in his bill of exceptions, we refer with approbation to what is said by Mr. Bishop, in sections 975a and 9756 of his work on Criminal Procedure.

Opinion delivered March 5, 1884.

Article 975a reads as follows: “Counsel are entitled to employ with the jury only legitimate argument. To indulge in vituperation and abuse of the party, or urge that if the defendant is not convicted the prosecutor will be ruined or be deemod convicted of perjury, or influence tljem with the idea that justice has not been well administered before, and therefore the defendant must not be acquitted, is irrelevant while it is unjust. 1 The jury should decide,’ says Crompton, judge, ‘upon the case solely upon the weight or credibility of the evidence, and not with reference to the supposed consequences to one side or the other.’ Of the like sort is the expression by defendant’s counsel, of belief in his client’s innocence.”

Article 9756 comments as follows: “ If counsel undertake what is thus inadmissible in argument, it is the right of counsel on the other side to object. And whether objection is made or not, the court may stop it; and, the author submits, a due regard for the purity of public justice demands that courts should oftener interfere in this way than is common, hiot in all circumstances can an error of this sort in the presiding judge be corrected by a higher tribunal, but in some it can do so by granting a new trial.”

When it appears that an error of this sort is calculated to injure the dófendant, this court has not hesitated to reverse the judgment. What benefit could inure to the. defendant by the court below giving him a bill of exceptions, we cannot imagine, unless the learned judge desired this court to pass upon the matter again. For in the Hatch case, 8 Texas Court of Appeals, 416; the House case, 9 Texas Court of Appeals, 565, and the Conn case, 11 Texas Court of Appeals, 391, matter of the same character came before us for revision, and we in those cases reversed the judgment, holding, such means for conviction unlawful, and that'we would not sanction such methods.

The judgment is reversed and the cause remanded.

Reversed and remanded,