Ball v. State

• Decision Date: 20 January 1904
• Citation: 78 S.W. 508
• Parties: BALL v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

78 S.W. 508

BALL v. STATE.^*

Court of Criminal Appeals of Texas.

January 20, 1904.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

G. T. Ball was convicted of rape, and appeals. Affirmed.

Preston Martin, Gilbert & Gilbert, and Brown & Bledsoe, for appellant. Jas. C. Wilson, Co. Atty., for the State.

BROOKS, J.

This is a conviction for rape, the punishment assessed being confinement in the penitentiary for a term of 14 years. The former appeal is reported in 72 S. W. 384, 7 Tex. Ct. Rep. 105.

The first bill of exceptions complains that the prosecuting attorney in his argument to the jury used the following language: "If ever there was a man who swore a lie on the witness stand, this man Ball swore one." Appellant excepted on the ground that it was "unwarranted, vituperative and denunciatory of defendant, and calculated to injure defendant's rights before the jury, and defendant at the same time requested the court to stop counsel in such unwarranted argument, and to withdraw and instruct the jury not to consider the improper language used, which the court declined to do." The court's explanation to the bill reads: "Counsel for state did use the language complained of, and that defendant's counsel at the time called the court's attention to same, and objected and excepted to said remarks; but counsel did not request the court to withdraw same from the jury, or to instruct the jury to disregard the same; that the court, when his attention was called to the remarks by counsel, simply noted the objection and exceptions, and did not stop counsel or instruct the jury to disregard same. This statement is made as explanatory of and part of this bill." His second bill of exceptions complains of the following language used by the prosecuting attorney: "This defendant is as guilty a scoundrel and liar as was ever tried in a courthouse." Appellant urges the same objections, and the court qualifies the bill in substantially the same language as that quoted above as to the first bill. Mere expressions of belief on the part of prosecuting attorney as to the guilt of defendant is not ground for reversal. Thomas v. State, 33 Tex. Cr. R. 607, 28 S. W. 534. In Frizzell v. State, 30 Tex. App. 56, 16 S. W. 751, prosecuting attorney used the following language: "Defendant was a tramp, a vagabond, and a felon." Counsel for appellant interrupted the speaker, and objected to the language. He did not request the court to instruct the jury in relation thereto. In that case it was held the remarks were not such as were calculated to illegally affect the defendant's rights; citing Walker v. State, 28 Tex. App. 503, 13 S. W. 860. Appellant did not ask a written charge that the court instruct the jury to disregard this language. This is necessary. Habel v. State, 28 Tex. App. 588, 13 S. W. 1001; Jackson v. State (Tex. Cr. App.) 37 S. W. 430.

In motion for new trial appellant insists error was committed by the county attorney in his closing argument to the jury, wherein he stated that defendant had doubtless made similar attempts on Myrtie Ball, prosecutrix, previous to the time of the alleged assault upon her, as testified by Myrtie Ball. This complaint is not verified by bill of exceptions nor affidavit, and therefore cannot be considered.

In motion he complains "the charge of the court, as delivered...