McKinley v. State

• Decision Date: 04 December 1907
• Citation: 106 S.W. 342
• Parties: McKINLEY v. STATE.
• Court: Texas Court of Criminal Appeals

106 S.W. 342

McKINLEY v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1907.

Appeal from Hopkins County Court; T. J. Russell, Judge.

Bill McKinley was convicted of violating the local option law, and he appeals. Reversed and remanded.

D. Thornton, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is a conviction for violating the local option law. The state's case was made by the testimony of a negro witness testifying positively to the fact that he bought a bottle of whisky from appellant; that he paid appellant the money and appellant told him to go into the back room of the house where they were and he would find it setting on the table; that he went as directed, and got the whisky. Appellant testified in his own behalf positively that no such transaction occurred. Over appellant's objection he was required to answer that for quite a while he was a whisky drummer, that he had been engaged in taking orders for whisky some five or six years, and that the house for which he took orders furnished him free sample whisky, which he would treat out among his customers at his discretion. The amount of whisky furnished depended upon the amount of business appellant did for his house. When he would send in a good number of orders, he would get more samples than when his business was dull. Various objections were urged to the introduction of this testimony, which we think were well taken. See Bell v. State (Tex. Cr. App.) 56 S. W. 913, Harris v. State, 98 S. W. 842, 17 Tex. Ct. Rep. 815, and Harris v. State, 97 S. W. 704, 17 Tex. Ct. Rep. 270.

In making his closing speech the county attorney used the following language: "Gentlemen of the jury, I want you to convict this defendant on the evidence in this case. It is true he testifies in his own behalf that he did not sell whisky to the prosecuting witness, but the prosecuting witness says that he did; and it is true the prosecuting witness is a negro, but I would believe the negro before I would believe a man like the defendant, who has time and again paid the penalty for the violation of the people's local option law, and goes manifestly without any principle around over the country boot-legging whisky in open violation of our local option law; and that is the kind of a man that is being tried before you." The bill recites these remarks were not supported by the evidence in the case, and that they were immaterial and irrelevant, outside of the record, and were erroneously recited by the county attorney. Exception was reserved. It is further shown that the court instructed the jury not to consider such remarks; but it is claimed that such instructions did not withdraw the prejudice created thereby from the minds of the jury. There was no evidence in the record that appellant had been previously convicted for violations of the local option law, nor to the effect that he had been boot-legging whisky over the country. Appellant had not put his character at issue. Permitting attorneys for the prosecution to dwell in argument on the character of a defendant, when not in issue, in a way calculated to prejudice him before the jury, is error. See Turner v. State, 39 Tex. Cr. R. 322, 45 S. W. 1020; Pollard v. State, 33 Tex. Cr. R. 197, 26 S. W. 70. Nor is vituperative and abusive argument permissible, and a conviction obtained in this manner is unlawful; and, where the record on appeal shows such was permitted to prejudice the accused before the jury, the appellate court should not hesitate to set it aside. See Crawford v. State, 15 Tex. App. 501, and Parks v. State, 35 Tex. Cr. R., 378, 33 S. W. 872. And it is error for counsel in argument to state facts not in evidence. See Tillery v. State, 24 Tex. App. 251, 5 S. W. 842, 5 Am. St. Rep. 882; Orman v. State, 24 Tex. App. 495, 6 S. W. 544; Clark v. State, 23 Tex. App. 260, 5 S. W. 115; Robbins v. State, 83 S. W. 690, 11 Tex. Ct. Rep. 560; Bell v. State (Tex. Cr. App.) 56 S. W. 913; Harris v. State, 98 S. W. 842, 17 Tex. Ct....