Baughman v. State
| Decision Date | 22 November 1905 |
| Citation | 90 S.W. 166 |
| Parties | BAUGHMAN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Rusk County Court; W. W. Moore, Judge.
J. G. Baughman appeals from a conviction. Reversed.
R. T. Brown and Buford & Buford, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of the sale of whisky in a local option territory to one Tucker. The county attorney, in his closing argument, used the following language: "Go back to the defendant's testimony in this case, and see if you can find where the sale has been denied." Another counsel for the state, in his argument to the jury, turned, and, looking defendant in the face, and while in this position, said, "Who knows better whether or not he sold Tucker the whisky?" pointing out defendant in the courtroom to the jury. The contention is made that this is an allusion to the failure of the defendant to testify and take the stand as a witness in his own behalf. Defendant did not testify. We are of opinion that these contentions are correct. They could mean nothing else but to point out the fact to the jury that appellant had not testified.
Another bill is reserved to the remarks of private counsel for prosecution, wherein it is recited that he pointed his finger at defendant, who was sitting inside the bar, near the jury, and with much force and emphasis proceeded to use the following language: "He knows whether or not he was indicted in the federal court at Tyler." Several objections were urged to this. This remark should not have been made. Tucker had testified to his being before the grand jury at Tyler, in regard to these matters, and defendant had not taken the stand. Tucker did not testify that an indictment had been returned. His evidence was confined to the fact that he was before the federal grand jury at Tyler. Whether appellant was indicted in the federal court or not was immaterial in this case. It could not have been evidence on the trial, and, if offered, should have been excluded. An attorney is not authorized in argument to make statements to the jury that are not in evidence, and which, if offered in evidence, would be excluded. Certainly an attorney in his argument would not be permitted to make statements to the jury not admissible in evidence, if the statements of the attorney were with reference to facts.
Pete Hendricks was permitted to testify to the following facts: ...
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Miller v. State
...St. Rep. 812; Rodriquez v. State, 58 Tex. Cr. R. 275, 125 S. W. 404; Askew v. State, 54 Tex. Cr. R. 416, 113 S. W. 287; Baughman v. State, 49 Tex. Cr. R. 34, 90 S. W. 166; Coleman v. State, 49 Tex. Cr. R. 86, 90 S. W. 499; Cline v. State, 71 S. W. 23; Turner v. State, 39 Tex. Cr. R. 329, 45......
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...is not admissible. (State v. Reynolds, Kan. 47, P. 573; Walker v. State, Tex. 72 S.W. 861; Swalm v. State, Tex. 91 S.W. 575; Baughman v. State, Tex. 90 S.W. 166; Johnson v. State, Tex. 62 S.W. 756; Erwin v. State, Ga. 49 S.E. 689; Cook v. State, Miss. 32 So. 312; Crimes v. State, Tex. 72 S.......
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Green v. State
...but the evidence shows that the place was open for business. Items were for sale. It was referred to as a store. Cf. Baughman v. State, 49 Tex.Cr.R. 33, 90 S.W. 166 (1905), and Jones v. State, 81 Tex.Cr.R. 230, 194 S.W. 1109 The evidence supports the verdict and the court did not err by ref......
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State v. Ferrone
... ... that may be put to him, and asked why the accused did not do ... so. These remarks were held to be improper and ground for ... reversal, if the trial court in its charge had not instructed ... the jury to disregard them. To the same effect are the ... decisions in Baughman v. State, 49 Tex. Cr. R. 33, ... 90 S.W. 166; State v. Goode, 132 N.C. 982, 43 S.E ... The ... record before us shows that the court, by denying the motion ... made by the counsel for the accused, added the influence of ... its ratification and sanction to the effect which the ... ...