Brooks v. State , 118 Tex. Crim. 205 ( 1930 )

On more mature reflection we think the error committed by the prosecuting attorney in his argument demands a reversal.

The prosecuting witness Walker had testified that he bought a pint of whisky from appellant about one or two o'clock on December 14th; that he only went to appellant's house one time, and that William Chatham nor any one else went with him to appellant's house at any time. When the officers first accosted Walker and inquired about the whisky he told them he got it from Son Gilmore. Appellant testified that he was away from home on December 14th from about nine o'clock in the morning until about five o'clock in the afternoon; that he never saw Walker until eight or nine o'clock that night when he came to appellant's house hunting whisky; that he told Walker he had none and did not know where he could get any. He denied making any sale to Walker. Appellant's wife testified substantially as did he regarding Walker's visit to the house on the night of December 14th. She also testified she had gone to Waco that day, leaving about nine o'clock in the morning and did not return until about dark. The witness Chatham contradicted Walker, testifying that he went with Walker twice to appellant's house on the day in question; the first time about ten o'clock and the second time about thirty minutes later; that appellant was not at home at either time; that later witness saw Walker with some whisky but did not know where he got it. The issue of sale was thus closely drawn, and Walker's contradictory statements were before the jury.

Bill of exception number three shows that appellant's attorney had argued to the jury that the witness Walker should not be believed because he first said he got the whisky from Son Gilmore. This was a legitimate argument and within the record. The county attorney in reply to that argument told the jury that Walker had not only testified in court before them under the sanction of an oath that he got the whisky from appellant, but "that he had come before the grand jury on the 31st day of December and testified to the same facts." What the witness had testified to before the grand jury was outside the record. It was not the statement of a conclusion from any facts in the record, but was an unsworn statement of the prosecuting attorney as to a fact which had become most material to the state in the condition the case was then in.

We are of opinion the obvious harm was not cured by the court withdrawing the argument, and that appellant lost no right to complain by failure to ask written instructions to disregard the argument. The county attorney had gotten before the jury a fact not in evidence, the evil effect of which could not be cured by the court's action. The case is very similar on its facts to those found in Pendleton v. State,26 S.W.2d 240. See also Derrick v. State, 80 Tex. Crim. 10,187 S.W. 759; Davis v. State, 116 Tex.Crim. Rep.,28 S.W.2d 168; Rosborough v. State, 93 Tex. Crim. 393,248 S.W. 372, and cases therein cited. Stanchel v. State, 89 Tex.Crim. Rep., 231 S.W. 120; Clancy v. State,93 Tex. Crim. 380, 247 S.W. 865; Horn v. State,106 Tex. Crim. 190, 292 S.W. 227. In Vineyard v. State,96 Tex. Crim. 401, 257 S.W. 548, the rule in regard to the matter was stated in the following language:

"We think the only safe rule to be that this court should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or where a mandatory provision of the statute is violated, or some new and harmful fact injected intothe case. Stanchel v. State, 89 Tex.Crim. Rep.,231 S.W. 120; Henderson v. State, 76 Tex.Crim. Rep.,172 S.W. 793; Bowlin v. State, 93 Tex.Crim. Rep.,248 S.W. 396."

That the argument of the prosecuting attorney in the present case comes within the inhibition of the rule is unquestionable. If the county attorney thought the evidence given by Walker before the grand jury was admissible he should have offered proof thereof in the proper way and not have injected the fact into the case through an argument.

The motion for rehearing is granted, the opinion of affirmance is set aside, and the judgment is reversed and the cause remanded.

Reversed and remanded.