Tipton v. State , 138 Tex. Crim. 341 ( 1939 )

Appellant again complains because of the remarks of the district attorney in his argument to the jury, and also takes issue with some of the statements in our original opinion herein. He takes issue with the opinion wherein it states that: "It is admitted in the appellant's brief, and we think the admission is warranted, that no one of the statements made by the prosecuting attorney, taken alone, would justify a reversal of the case. It is contended, however, that all of the arguments complained of, considered together, present reversible error."

Appellant contends that probably such a conclusion might be drawn from his argument relative to bills Nos. I, II and VII, but when taken together with his other bills, he renews his contention that same evidence serious error.

Appellant's bill No. III, as qualified by the court, seems to have been an argument invited by the prior argument of appellant's attorney. We are not in accord with appellant's contention that same necessarily referred to appellant's witness Dr. Swindell.

Bill of exceptions No. V complains because of the following argument of the district attorney: "Fellows like this one (referring to the defendant) who is a fraud, a cheat and a thief, and he got money that did not belong to him, and probably has been practicing upon it for years." The facts show that appellant did get money by means of what the State contended was a finished piece of forgery, hard to detect, doubtless evidencing experience in copying the signature of others, so the State claimed, appellant's main objection going to the use of the word "thief." We must confess there seems to us to be very little difference between obtaining a person's money by a fraudulent taking and a forged instrument, knowing the same to be forged. We do not think this is a reversible matter.

Appellant's bill of exceptions No. VI is concerned with the abstract statement made by the district attorney that "Lying, cheating and stealing all go hand in hand." This is possibly a matter of opinion alone, but the State claimed that there was in evidence certain statements that were unreasonable, contradictory and unbelievable which appellant claimed showed a condition of insanity, but which the State claimed were pure fabrications. We see no serious error evidenced by such a statement.

We do not mean to hold herein that an error committed in the trial of a case is always cured by the fact that the jury awarded the accused the minimum penalty. We do mean to hold, however, that we see no error of a serious nature evidenced by appellant's bills of exception.

The question of appellant's sanity was properly presented to the jury under appropriate instructions, and their finding against him is supported by the State's evidence.

The motion is overruled.