Harwell v. State

• Decision Date: 15 February 1911
• Citation: 134 S.W. 701
• Parties: HARWELL v. STATE.
• Court: Texas Court of Criminal Appeals

134 S.W. 701

HARWELL v. STATE.

Court of Criminal Appeals of Texas.

February 15, 1911.

Appeal from Johnson County Court; J. B. Haynes, Judge.

Jim Harwell appeals from a conviction. Reversed and remanded.

Phillips & Bledsoe, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for violating the local option law.

The state's evidence shows that the alleged purchaser, T. M. Pettigrew, stated that he got a pint of whisky from appellant, for which he paid him 75 cents. This was emphatically denied by appellant; he testifying that he never sold Pettigrew any whisky in his life. Several bills of exception were taken to the argument of the county attorney, and special instructions were requested by counsel for appellant to withdraw these remarks from the jury, with further instructions not to consider the same. These were refused by the court.

The first bill of exception recites that the county attorney in his closing argument said: "If I was sworn as a witness in this case, I would not be afraid to tell the jury why Tim Pettigrew left here. Jim Harwell was surprised when he saw old Tim here as a witness. We got him back. We got him back. We kept on old Tim's trail, until we got him back, and Jim knows why he went to Georgia, and spent several months doing nothing." The second bill recites that in the closing argument the county attorney said: "Now, gentlemen of the jury, listen: Here is Jim Harwell. Why, Jim only weighs 240 pounds; 28 years old and 240 pounds; yet Jim says he was hashing at the American Restaurant. Now, you know that sounds to me like a lie. I can tell you what he was doing, for I know. Jim was selling whisky; that's what Jim was doing. Two hundred and forty pound man hashing! Now, that's a lie, and you know it." The third bill recites that the county attorney used the following language: "Jim Harwell, a `hasher' in the American Restaurant; that is the rottenest hole in the United States today, and he is the blackest bootlegger in Johnson county. I say so, because I know him." Another bill recites that while the county attorney was addressing the jury he said: "We can't enforce the law, if the jury will go out here and turn bootleggers like defendant loose in such cases as this; and now, if you want bootleggers to run riot here, go out and turn this one loose." Another bill recites that the county attorney said: "Gentlemen of the jury, I declare to you Jim Harwell never did a decent act...