Weatherred v. State , 129 Tex. Crim. 514 ( 1935 )

Our original opinion was based on a supposed error appearing in appellant's bill of exceptions No. 3, which complains of the closing argument of the attorney for the State, who said to the jury, in apparently a continuous statement, as follows: "Roy Lay arrests the defendant and takes him to jail. The defendant says nothing; he explains nothing." The bill recites as follows: "To which language 'The defendant says nothing. He explains nothing,' the defendant then and there in open court and at the time such argument was made duly, properly and timely objected and excepted for the reason that such argument was outside the record, highly inflammatory and prejudicial to the rights of the defendant; and for the further reason that such language was an argument by counsel to the effect that since defendant had made no statement he was guilty as charged, and an argument to the effect that since defendant had exercised his constitutional and statutory right to remain silent and make no statement that such silence should be taken by the jury as evidence of the defendant's guilt; and for the further reason that such argument was a comment on the part of counsel for the State upon the defendant's failure to testify."

It is also stated therein that appellant moved the court to instruct the jury to disregard the language "The defendant says nothing; he explains nothing," and that the court duly instructed the jury not to consider that argument, but did not so instruct them in writing. The bill certifies nothing further save to say that the argument was not made in answer or reply to any argument made on behalf of the defendant.

The State's position in regard to this argument is that in all that was then said, the attorney had reference only to the fact that when appellant was arrested and taken to jail he said nothing and made no explanation.

Manifestly this bill is not clear, and the inference that appellant here seeks to have placed upon the statement made, seems forced. If the attorney had said "Lay arrested defendant; the defendant said nothing; Lay took him to jail; the defendant explained nothing," it would be plain that only reference was intended to acts of the officer identical in point of time and occurrence with the failure of the accused to say or explain. This would result from the identity of the tense of the verbs used. The only difference seems to be that instead of using the past tense, as in our language just above, the attorney used the present tense of the verb throughout, saying, in effect, "Lay arrests appellant; appellant says nothing. Lay takes him to jail; appellant explains nothing."

In other words, in order to agree with appellant we would have to adopt the seemingly unfair proposition of cutting in half the statement actually made by the attorney and thus find support for a contention not borne out by the whole statement, the purpose being to lead us to believe that in the last half of the utterance the attorney meant that on this trial appellant had not testified. We can not agree that it is proper to so mutilate the statement made. The setting of a word or words gives character to them and may wholly change their apparent meaning. A notable illustration of such practice is that of the minister displeased with the manner of hair dressing used by the women of his congregation, who preached from the text "Topnot come down," which was found to be the latter part of the scriptural injunction "Let them that are upon the housetop, not come down."

If we understand anything of phrase construction and interpretation we would be doing plain violence to all the rules if we undertook to say, in the absence of anything to justify such conclusion, looking to the entire utterance above quoted, that in what was said the attorney intended, or the jury understood, that in the first part of his utterance, to-wit: "Lay arrests the defendant; he takes him to jail," the attorney referred to what took place on the night of the homicide, and that when he went at once on in the same connection and said "The defendant says nothing; he explains nothing," — by this the attorney turned completely away from the time first referred to and intended a reference to the immediate occurrences during the trial and to the fact that the accused had not testified.

The language of the objection above quoted, in all save the concluding phrase, suggests that it was aimed at something said at the time of the arrest. The words "Outside the record" mean that there were no testimony that appellant said or explained anything to Lay. The further statement in the objection "Such language was an argument * * * that since defendant had made no statement," appears clearly to be aimed at an argument that the defendant then made no statement, and not to the fact that he now gives no testimony. We observe that the learned trial judge was personally present and saw and heard said argument, the tone, gesture, manner and connection. While the judge instructed the jury not to consider the argument, which is usually done by trial judges when there is any sort of question in their mind regarding argument, he does not certify, nor was he asked to certify, nor can we conclude from the language used when taken altogether, that there was any necessary reference to the failure of the accused to testify as a witness in this case. Reasoning further, manifestly the first and natural inference from the whole statement would be that the time the defendant "Says nothing and explains nothing," would be when "Lay arrests him and takes him to jail."

In Reinhard v. State, 52 Tex.Crim. Rep., discussing an argument claimed to be a reference to the failure of the accused to testify, Judge Davidson, for the court, says: "Wherever a bill of exceptions brings to the attention of this court a matter for review, it must be specific and certain enough to point out the error, and not leave it to inference. The ruling of the trial court will be presumed to be correct, and, in order to overcome this presumption, the record, in a legal way and with legal sufficiency, — must manifest the error requiring a reversal of the ruling of the trial court. We do not believe this bill is in such condition that it requires us to reverse this judgment." In Huff v. State, 103 S.W. 394, the same eminent jurist, again discussing an argument, says that the bill of exceptions must show on its face that the error complained of was such in fact.

Under many decisions of this court we have laid down the rule that an argument must go beyond the proposition that itmight be construed as a reference to the failure of the accused to testify, and we have held that only in case same must have such effect when fairly construed, would the argument be held reversible error. In Jones v. State, 85 Tex.Crim. Rep., speaking through Judge Morrow, the court says: "The rule which appears to have been established is that the implication must be a necessary one." The same language is found in Boone v. State, 90 Tex.Crim. Rep.. In Singleton v. State,93 Tex. Crim. 111, Judge Hawkins italicizes the fact that such implication must be necessary, and in Hubbard v. State,94 Tex. Crim. 482, the court says, through the writer hereof: "We do not regard the argument as one whose necessary effect was a reference to appellant's failure to testify." See, also, Johnson v. State, 114 Tex.Crim. Rep.; Kennington v. State, 120 Tex.Crim. Rep..

No reason is perceived why ordinary rules laid down by text writers, when construing words and phrases in statutes and contracts, might not be resorted to. In Black on Interpretation of Laws, p. 135, Horn Book Series, we find this statement: "Associated words explain and limit each other. When a word used in a statute is ambiguous or vague, its meaning may be made clear and specific by considering the company in which found, and the meaning of the terms which are associated with it."

It would appear a permissible paraphrase to say that when words appear in a statement whose meaning and inference are vague and not clear, their meaning may be arrived at by considering the other things said and words used at the same time and in the same connection.

What were the facts had in mind by the attorney when making the argument? This appellant shortly before this homicide had a fight with the man who was killed. Appellant went away after the fight with a threat to get a gun and kill deceased. After the shooting all the officers of the town were looking for appellant. He appears with wet and muddy shoes; his pants wet half-way up to his knees. He contacts an officer whom he has known all of his life; talks with him, and is carried to jail. He makes no explanation to the officer of how his shoes and clothes became wet. He tells him nothing of where he has been or been doing, or what caused his condition, or why the officer could not find him. Without giving us any light on what the attorney may have previously said leading up to the entire statement, it is merely set out in the bill that said attorney, referring to officer Lay, who first made contact with appellant after the homicide, and who arrested him and took him to jail, — states that defendant says nothing, he explains nothing. We hold that this would appear from the other words used, from the facts making up the setting, to at least be as susceptible of the interpretation that said statement of the attorney referred to the fact that appellant said nothing and explained nothing to officer Lay, as it would be to give to same the interpretation that said attorney intended by said statement to refer to appellant's failure to testify, and under all the authorities cited, if this be true, appellant's complaint of the argument is not well founded. There was evidence in the record, brought out by both sides, that when arrested appellant said nothing and made no explanation.

We have examined each of appellant's other bills of exception. One brings forward complaint of the charge, none of the criticisms of which seem well founded. Another complains of additional argument of the attorney for the State, which argument, for aught we know from the bill, may have been amply supported by testimony. The fourth and remaining bill sets out that in argument the attorney said "John Green was murdered and there sits his murderer," pointing to appellant. Under undisputed facts Green was sitting in his filling station when shot by some one from out in the dark. This was murder. All who heard the argument knew that the attorney making same was not a witness, and that he was but expressing his opinion on the facts. We think none of the bills of exception show any error.

The State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.

Affirmed.

ON APPELLANT'S MOTION FOR REHEARING.