Flores v. State

• Decision Date: 07 November 1917
• Docket Number: (No. 4647.)
• Parties: FLORES v. STATE.
• Court: Texas Court of Criminal Appeals

198 S.W. 575

FLORES v. STATE.

(No. 4647.)

Court of Criminal Appeals of Texas.

November 7, 1917.

Appeal from District Court, Reeves County; Chas. Gibbs, Judge.

Octabiano Flores was convicted of unlawfully selling intoxicating liquor in prohibition territory, and he appeals. Reversed.

Ben Palmer and Howard & Cooke, all of Pecos, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This conviction was for the unlawful sale of intoxicating liquor in territory where the sale thereof is prohibited. The penalty assessed was confinement in the state penitentiary for three years.

In the attached opinion the conclusions reached are acquiesced in, except that with reference to the complaint of the argument of the prosecuting attorney. This officer used the following language in his argument to the jury:

"If you don't convict the defendant in this case, I am going to have you all indicted and sent to the penitentiary for perjury."

The court, on objection by appellant to the impropriety of this argument, verbally stated that he sustained the objection. He failed to reprimand the attorney making the argument, and subsequently refused a special charge, prepared by appellant, instructing the jury to disregard it. The right of argument, its scope, and the consequences of its abuse, have been the subject of many discussions in the opinions of this court. It is a privilege accorded by the statute. The Supreme Court, acting under a provision of the Constitution permitting it to make rules for the government of the district court, has imposed the duty upon counsel to confine their arguments strictly to the evidence and argument of opposing counsel, and upon the court to exercise his authority in the enforcement of these rules. Rules 39, 41, and 121, Supreme Court. The purpose of these rules is to insure a fair trial, and to maintain the dignity and decorum of the court. Willis & Bros. v. McNeill, 57 Tex. 465. 1 Thompson on Trials, p. 814, § 965, says:

"The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the cause, both as to the law and the facts, is unabridged. The range of discussion is wide. In his address to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of the parties; to impugn, excuse, justify, or condemn motives, so far as they are developed in evidence, assail the credibility of witnesses when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. To this freedom of speech, however, there are some limitations. His manner must be decorous. All courts have power to protect themselves from contempt, and indecency in words or sentences is contempt. This is a matter of course in the courts of civilized communities, but not of form merely. No court can command from an enlightened public that respect necessary to an even administration of the law without maintaining in its business proceedings that courtesy, dignity, and purity which characterize the intercourse of gentlemen in private life."

Our Supreme Court, in the case of Thompson v. State, 43 Tex. 274, said:

"Zeal in behalf of their clients, or desire for success, should never induce counsel in civil causes, much less those representing the state in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments based upon any other than the facts in the case and the conclusions legitimately deducible from the law applicable to them."

The lapse of time has not marred the wisdom of this statement. It is as pertinent to the trial to-day as it was apt at the time it was uttered. Argument such as that quoted in the bill calls for rebuke by the trial judge. 1 Thompson on Trials, § 958, p. 801; Willis v. McNeill, 57 Tex. 465; Burrell v. State, 62 Tex. Cr. R. 636, 138 S. W. 707; Jenkins v. State, 49 Tex. Cr. R. 457, 93 S. W. 726, 122 Am. St. Rep. 812; Crawford v. State, 15 Tex. App. 501; Rushing v. State, 62 Tex. Cr. R. 311, 137 S. W. 372; Brailaford v. State, 71 Tex. Cr. R. 114, 158 S. W. 541; Hatch v. State, 8 Tex. App. 416, 34 Am. Rep. 751; Crow v. State, 33 Tex. Cr. R. 264, 26 S. W. 209; Brazell v. State, 33 Tex. Cr. R. 333, 26 S. W. 723; Henry v. State, 30 S. W. 802; and Hemphill v. State, 72 Tex. Cr. R. 644, 165 S. W. 462, 51 L. R. A. (N. S.) 914, wherein the court expresses regret that it is again called upon to reverse the judgment upon the sole ground of improper argument. The ruling in this court is that where an argument is improper and likely to result in injury to the appellant, which injury may be avoided by an instruction to the jury, that the failure of the court to so instruct the jury upon request of appellant requires a reversal. Branch's Ann. P. C. § 362, and cases cited. And it is held that, if an argument is of such a nature as to be obviously hurtful and prejudicial, it will result in reversal, even though an instruction to disregard it is given. Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966. The threat of the district attorney to cause the indictment of the jurors for perjury if they acquitted the accused, it would seem, would come within the class disclosing obvious injury; at least it was such a breach of the decorum of the court and offense against its dignity as required rebuke; it was such a blow at appellant's right to have his case tried on its merits as to demand its withdrawal by special charge on request of appellant.

The verdict assessed the extreme penalty authorized by the statute for the offense. In what measure it was brought about or influenced by the threat of the state's representative is a question that cannot be answered, but the facts relating to it are such as to require this court, out of respect of its own interpretation by previous decisions of fundamental and statutory rights of the accused to a fair trial, to order a reversal of the judgment.

PRENDERGAST, J. (dissenting).

On May 16, 1917, the grand jury of Reeves county indicted appellant for making an unlawful sale of intoxicating liquor to Ronald Roberson on May 11, 1917, after an election had been held in said county, in accordance with the law to determine whether or not the sale of intoxicating liquors should be prohibited in said county, and such election had resulted in favor of prohibition, and the commissioners' court of said county had duly made, passed, and entered its order declaring the result of such election, and absolutely prohibiting the sale of such liquors in said county as required by law, and the county judge of said county had caused said order to be published in the manner and form and for the length of time required by law. We have omitted the preliminary allegations about the organization, etc., of the grand jury, and while we have not quoted the language of the indictment following we have given in full the substance thereof.

The cause was tried on May 23, 1917. The evidence is very short and to the point. It was agreed by both parties that said election was ordered by the commissioners' court on September 9, 1911, and that the prohibition of the sale of intoxicating liquors in said county was in effect, "and was at the time this sale occurred." The purchaser, Ronald Roberson, testified positively that he knew the defendant and had known him 5 or 6 years; that about May 11, 1917, he bought a half quart of whisky from him, and paid him $1.25 therefor, and that this occurred in a pool hall in the Mexican town in said state and county; that Mose Buchanan was with him at the time he bought the whisky from appellant. Mose Buchanan swore that he was present, and that said Roberson bought from appellant said whisky and paid him $1.25 therefor. There was no testimony whatever from any source disputing the testimony of these two witnesses. They were in no way impeached or attempted to be impeached.

Appellant introduced one witness, the county judge, who swore that he had known him some fourteen years, ever since he was quite a small boy, and that he had never been convicted of a felony in that county or anywhere else. This witness swore that he was not acquainted with his reputation as a peaceful, law-abiding boy, and therefore could not qualify and did not testify as to his reputation in this respect. Another witness did testify that he did not know that he could state that he knew his general reputation in the respect inquired about, because he had never known of him being in any trouble, but that so far as he knew his general reputation in the particular stated was good. He further swore that he had never been convicted of a felony that he knew of. His father swore that appellant was 23 years old and that he had never been sent to the penitentiary. The state introduced the sheriff and a deputy, who each swore that they had known appellant for many years and they knew his reputation for peace and quietude—that it was bad. The sheriff swore he had never been convicted of a felony in that county. There was no testimony by any witness showing, or tending to show, that appellant had ever been charged or convicted for any offense. Appellant pleaded for a suspended sentence.

Appellant made a motion to quash the indictment on the ground that it failed to allege when the prohibition election was held in said county and when prohibition went into effect therein. Whereupon the district attorney made a motion for leave, under the direction of the court, to amend the indictment by inserting the date therein on...