Bailey v. State

• Decision Date: 20 April 1898
• Citation: 45 S.W. 708
• Parties: BAILEY v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W. 708

BAILEY v. STATE.

Court of Criminal Appeals of Texas.

April 20, 1898.

Appeal from Lee county court; I. H. Bowers, Judge.

Prosecution against Wilson Bailey for theft. Conviction, and defendant appeals. Affirmed.

Rector, Harris & Watson, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of theft of property under the value of $50, and his punishment assessed at 30 days' imprisonment in the county jail, and a fine of $50; hence this appeal. The information was under article 877, Pen. Code 1895, making the appropriation of property by a bailee, without the consent of the owner, theft.

Appellant, by his first bill of exceptions, calls in question the action of the court in permitting the county attorney to indulge in remarks of denunciation against the defendant. The bill shows that the county attorney declared before the jury that the appellant was a rape fiend; that he wanted them to punish him according to the gravity of the offense. Appellant objected to this argument, and requested the court to instruct the jury to disregard the same; and the court, in the presence of the jury, replied, "That is the theory of the county attorney," and refused to withdraw said remarks from the consideration of the jury. These remarks were entirely outside of the record in the case, and ought not to have been permitted. It was the duty of the appellant, however, before he could insist on a reversal of the case on said account, to have requested the court to instruct the jury, and to have presented to the court a written charge instructing the jury, to disregard such language and, on the failure of the court to give the same, then, on an exception being reserved, we might feel authorized to reverse the case for the use of such language as was attributed to the county attorney. This course, however, was not pursued. The court gave a general charge to the jury, and also gave two special instructions requested by appellant, which, in effect, covered all the issues in the case. At any rate, no exceptions were reserved to the charge of the court, or the failure of the court to give requested charges, either by bill of exceptions reserved at the time, or in the motion for a new trial; and, even if all the phases of the case are not sufficiently covered by the charges given, appellant is not in a condition to complain. We have examined the record carefully, and in our opinion the testimony is sufficient to...