Jackson v. State

• Citation: 20 S.W. 921
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Decision Date: 10 December 1892
• Parties: JACKSON v. STATE.

20 S.W. 921

JACKSON v. STATE.

Court of Criminal Appeals of Texas.

December 10, 1892.

Appeal from district court, Walker county; N. G. KITTRELL, Judge.

Drew Jackson was convicted of grand larceny, and appeals. Affirmed.

While the district attorney was making his closing argument to the jury, the following language was used by him, to wit. "Counsel for the defense insists that the state has not proved that the money taken from Drew Jackson by the sheriff was the money of Tucker Miller. I say they have not proved that the money was Drew's money. Why have they not had Drew's family here, and the other witnesses, to prove that the money was Drew's money? Don't you know that counsel appreciates the importance of the evidence, and, if the money was Drew's money, they ought to have had their witnesses here to prove it? And nobody has testified to this jury that the money belonged to defendant, and he has never claimed it since the sheriff took it from him." The defendant then and there excepted to the above remarks of the district attorney, because the same were not warranted or authorized in law, and were certainly calculated to prejudice the minds of the jury against the defendant, and were calculated to and did create upon the minds of the jury the impression and belief that the defendant was required to prove the money found in his possession was his property, and that, too, when the state had wholly failed to prove that the money taken from defendant by the sheriff was the money of Tucker Miller, and that the money so taken had been turned over to Tucker Miller.

Campbell & Ball, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of the theft of $30 from one Tucker Miller, and sentenced to five years in the penitentiary, from which judgment he appeals.

1. Appellant complains that the court erred in overruling his application for a continuance, on account of the absence of Tom Jackson, who, witness said, was then to be found in Harris county. The application does not state whether it is the first or second application, but, conceding defendant has shown due diligence, we can see no error in overruling it. The witness Tom Jackson was not present the night before, when defendant handed Tucker Miller his envelope, which defendant then claimed to contain the whole $70, and, at the very time when Tucker says defendant took out a portion, a $10 bill may have been dropped on the ground, and may have been picked up by defendant next morning;...