Lynch v. State

• Decision Date: 21 March 1917
• Docket Number: (No. 4398.)
• Citation: 193 S.W. 667
• Parties: LYNCH v. STATE.
• Court: Texas Court of Criminal Appeals

193 S.W. 667

LYNCH v. STATE.

(No. 4398.)

Court of Criminal Appeals of Texas.

March 21, 1917.

Appeal from Rusk County Court; R. T. Brown, Judge.

Dock Lynch was convicted of aggravated assault, and appeals. Reversed and remanded.

R. T. Jones, of Henderson, T. J. Arnold, of Houston, and J. Y. Gray, of Henderson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was prosecuted under a complaint and information charging him with aggravated assault; he was convicted by the jury, and his punishment fixed at a fine of $50 and 30 days' confinement in the county jail.

The statement of facts is not copied in the record, and the Assistant Attorney General has filed a motion to strike it out. Under the authority of Looper v. State, 62 Tex. Cr. R. 96, 136 S. W. 791, Wagoner v. State, 63 Tex. Cr. R. 180, 140 S. W. 339, Jenkins v. State, 64 Tex. Cr. R. 86, 141 S. W. 222, and Skinner v. State, 64 Tex. Cr. R. 84, 141 S. W. 231, construing article 844, Vernon's Code Cr. Proc., the motion must be sustained.

In bill of exceptions No. 3 it is made to appear that one of the attorneys for the state, in his argument to the jury, used the following language:

"Talk about this defendant not being guilty, and he denying that he came up here and offering to plead guilty if I would let him out for a simple assault, he denies this; but, gentlemen of the jury, I know what he did; I know the defendant is guilty; that the testimony of Mrs. Lynch, because the defendant came to me before this case came to trial and told me that he would plead guilty if I would give him the lowest fine."

That no witness testified to this, and that the defendant while on the stand was asked if he had not offered to plead guilty and denied it. Exception was taken during the argument and overruled.

Bill of exceptions No. 4 shows that, while one of the attorneys for the state was closing the argument, the following proceedings occurred:

"The attorney was making reference to the conduct of the defendant, and stated that, while there was no proof before the jury about the way the defendant treated his wife down at Poole & Strong's sawmill, when his first child was born, he denied that he got drunk and came home and mistreated his wife and ran his mother-in-law off while she was there to wait on her daughter with childbirth; he, the attorney, could tell the jury that it did happen, and would tell — then defendant's counsel objected, interrupted the argument of said attorney, when said attorney said before the court and jury that he knew there was no evidence in, and that it was not right to argue such, but he believed that he would take a shot at it anyway, defendant's counsel still objecting, and ask the court to instruct the jury not to consider such remarks. The court did instruct the jury not to consider such remarks, and told the counsel making the argument to proceed with the argument and stay within the rules. Then over objections he again...