Ainsworth v. State, 12925.

• Decision Date: 25 June 1930
• Docket Number: No. 12925.,12925.
• Citation: 30 S.W.2d 310
• Parties: AINSWORTH v. STATE.
• Court: Texas Court of Criminal Appeals

30 S.W.2d 310

AINSWORTH v. STATE.

No. 12925.

Court of Criminal Appeals of Texas.

June 25, 1930.

Appeal from District Court, Eastland County; J. Frank Sparks, Special Judge.

John Ainsworth was convicted for theft of property worth more than $50, and he appeals.

Reversed and remanded.

Chastain & Judkins and Tom J. Cunningham, all of Eastland, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for theft of property of the value of more than $50; punishment seven years in the penitentiary.

There appears in this record in bill of exceptions No. 13 an objection to the argument of the county attorney. The argument objected to is as follows: "You have seen John Ainsworth smiling and playing around here with these little flappers around the court room during the trial of this cause and you are going to bring in a verdict that will take that smile off his face and make him serious one time in his life—He talks to the flappers, but does not choose to talk for you." The objection to this was that it was an allusion to the failure of the defendant to testify in his own behalf. We are constrained to believe the contention well founded. There is in the record an application by the state for a certiorari seeking to have incorporated in this record an amendment to said bill of exceptions No. 13, which purported amendment omits from the bill the last clause of the argument above quoted referring to appellant's failure to talk to the jury. The application for certiorari is accompanied by a supplemental transcript and a statement of facts heard by the court upon hearing of the motion to correct the record. Without going at length into the question as to whether or not, upon a proper showing of fraud, this court could make an order directing a trial court to forward to this court a corrected bill of exceptions, we are of opinion that there is no such showing made in this case of any fraud or deception practiced upon the trial court as could in any event call for the granting of such order by us. The case was tried before a special judge. He testified himself upon the hearing, and says in plain language: "There was no fraud or deception practiced on me to obtain my signature to bill No. 13, that I know of." The attorneys who prepared the bill of exceptions testified that same was made from notes taken upon the trial, and that it correctly represented the facts according to their best judgment. We do not believe...