Benson v. State

• Decision Date: 28 April 1909
• Citation: 118 S.W. 1049
• Parties: BENSON v. STATE.
• Court: Texas Court of Criminal Appeals

118 S.W. 1049

BENSON v. STATE.

Court of Criminal Appeals of Texas.

April 28, 1909.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Willie Benson was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Chester H. Terrell, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is the third appeal of this case. On the first trial appellant was convicted of murder in the first degree, and his punishment assessed at death. 51 Tex. Cr. R. 367, 103 S. W. 911. In this opinion there is a general, but fairly correct, statement of the facts in the case, which was to some extent, however, qualified on the trial of this case. On the second trial appellant was convicted of murder in the second degree, and his punishment assessed at 25 years' confinement in the penitentiary. The opinion on appeal on this conviction is reported in 111 S. W. 403. The conviction on this trial was reversed for the error of the court in charging on the matter of impeaching testimony. Appellant was tried the third time in the district court of Bexar county, and on the 15th day of October, 1908, was again convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 25 years. The case is again before us on appeal duly perfected, and there are perhaps more numerous objections made to the proceedings of the court below on this appeal than on either of the former appeals.

1. We think the case must be reversed on account of the action of the court in permitting the district attorney to refer to and discuss the former conviction of appellant. This action of the district attorney was duly excepted to at the time, and the point saved by proper bills. Among other things, on cross-examination, the district attorney asked the witness Isaac Walker, "Didn't you know it, and don't you know the papers were full of the Benson trial, and didn't you know the jury assessed the death penalty one month after the killing?" This question and the answer sought to be elicited thereby was objected to by counsel for appellant, for the reason that the district attorney had no right to refer to the death penalty having been given, and because he stated the fact in the presence of the jury that the death penalty had once been assessed against appellant. The court explains, in approving this bill, that the question objected to was permitted on cross-examination of the witnesses, who testified that they had not testified at the first trial, but had kept quiet; that the district attorney then pressed the witnesses, asking how they could remain silent and not tell what they knew, when the death penalty had been found by the jury, and the case had been affirmed by the higher court. This, the court states, was allowed, as going to the credibility of the witnesses and the weight to be given to their testimony by the jury. The court also states, in his explanation, that the death penalty was not in this case, and the court so informed the jury at the time, and it was not referred to, except to affect the witnesses as stated, and to show the jury the improbability of their testimony; they remaining silent under such circumstances. The former conviction, the court says, was a part of the history of the case, and, he adds, the attorney for the defendant and the witness Neunhoffer had mentioned the fact to the jury that the knife was found while the case was on appeal.

By another bill it is shown that in his argument to the jury the district attorney frequently commented on the death penalty having been given, in connection with the testimony of Isaac Walker and Ora Lee Moseley, and stated they should not be believed, because they remained silent, knowing that the death penalty had been given. These statements of the district attorney were objected to by counsel for appellant, and exception reserved, for the reason that commenting on the fact that a death penalty had been given in the case heretofore prejudiced the rights of the defendant before the jury, and he had no right to refer to the death penalty having been given at the first trial. This bill is allowed, with the explanation that the testimony was admitted solely for the purpose of going to the credibility and weight of the testimony under the circumstances, and the further statement is made that on the second trial defendant was found guilty of murder in the second degree, and the death penalty could not be considered by the jury in this case, and they were so informed by the court, and no written instructions were asked by defendant's counsel on this subject. It will be noted that, according to the explanation of the court, the only reference made by defendant's counsel to the witness named was an incidental reference to the effect that the knife had been found while the case was on appeal. Whether this appeal would be considered by the jury as referring to his former conviction, or an appeal in an effort to obtain bail, does not appear, and is so casual and incidental as not probably to have been such as would have injured appellant, and was not such a statement as would warrant, as we believe, the district attorney to in terms refer to the fact of a former conviction of appellant, and that that conviction had resulted in the assessment of the penalty of death. Article 823 of the Code of Criminal Procedure of 1895 is as follows: "The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument." It has been uniformly held in this state that it is reversible error for counsel, in argument on a second trial, to allude to a defendant's conviction on a former trial. Hatch v. State, 8 Tex. App. 416, 34 Am. Rep. 751; House v. State, 9 Tex. App. 567; Moore v. State, 21 Tex. App. 666, 2 S. W. 887; Fuller v. State, 30 Tex. App. 560, 17 S. W. 1108; Richardson v. State, 33 Tex. Cr. R. 518, 27 S. W. 139. It has also been held that evidence with regard to the fact of defendant's previous conviction is inadmissible testimony. Richardson v. State, 33 Tex. Cr. R. 518, 27 S. W. 139, 518; Hargrove v. State, 33 Tex. Cr. R. 431, 26 S. W. 993.

In the case of Hamilton v. State, 40 Tex. Cr. R. 464, 51 S. W. 217, it is said: "If the private prosecutor cannot allude to the former conviction in his argument, by the same reasoning he should not be permitted to allude to it during the progress of the trial. Here he not only alluded to it, but alluded to it in the adducing of testimony in a manner calculated to give weight to that testimony—that is, he was permitted to prove by a juror who tried appellant at a former trial that not only he, but the entire jury, believed the prosecutrix's testimony on that trial; and such illegal testimony could have no other result than to prove hurtful to appellant, and it evidently was brought out for that purpose. The jury convicted appellant, and gave him 25 years. They may or may not have convicted him without this illegal testimony, or they may, without this testimony, have given him a less term of years in the penitentiary. We cannot tell. We only know that the evidence and the remark of the private prosecutor were improper and illegal, and were of a character calculated to prejudice appellant. Washington v. State, 23 Tex. App. 336, 5 S. W. 119."

In the later case of Coleman v. State, 49 Tex. Cr. R. 82, 90 S. W. 499, in respect to a matter not so serious as this, the court reversed the judgment of conviction. In that case it seems that the district attorney alluded to and discussed the facts of another case, and it seems, according to the statement of the court, the argument was drawn out by some remarks of appellant's counsel. According to the report the matter arose in this way: "That the case referred to was a murder case, somewhat similar to this case, and that case showed the death penalty had been inflicted, and such allusion was calculated to influence the jury and prejudice their minds against defendant. The court signed the bill by stating `that the district attorney in his closing argument, in answer to some authorities read by counsel for defendant, showed what it took to make murder in the first degree. As soon as objections were made, I told the district attorney it was not proper or right to discuss the fact before the jury in a case not on trial.' In the following bill it is shown: `Defendant's counsel claimed the fact that the defendant told the officers about the occurrence and surrendered was proof of his innocence. The district attorney then in reply said that he knew of a case of a negro named Spencer, and that counsel for defendant and some of the jury knew of said case, where defendant came across the river to Red River county, surrendered to the officers, and was subsequently convicted and sent to the penitentiary for a term of 99 years.' Appellant objected to this for various reasons, and the court signs the bill with the explanation that the court instructed the jury not to consider the remarks of the district attorney. These remarks were highly improper, and the objection to them should have been sustained at once. It is true that the court withdrew the remarks, or rather instructed the jury to disregard them. Still the remarks were made, and evidently found lodgment in the minds of the jury. If the facts stated by the district attorney in his argument had been introduced and offered before the jury, they would have been clearly inadmissible, and the admission of them before the jury would have required a reversal of the judgment. Why matters of this sort should continually occur in the trial of cases we do not understand. Under the theories of our criminal jurisprudence...