Palmer v. State
| Decision Date | 30 January 1952 |
| Docket Number | No. 25469,25469 |
| Citation | 246 S.W.2d 893,157 Tex.Crim. 96 |
| Parties | PALMER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Adrian A. Spears, San Antonio, for appellant.
Austin F. Anderson, Criminal Dist. Atty., John Patrick Maloney, Asst. Dist. Atty., San Antonio, George P. Blackburn, State's Atty., of Austin, for the State.
WOODLEY, Commissioner.
The conviction is for aggravated assault upon an officer while engaged in the performance of the duties of his office, the jury having assessed the punishment at two years in jail. The incident occurred on July 12, 1950, but the complaint was not filed until December 1, following.
Appellant and Oliver Blumberg, the complaining witness, were both police officers of the City of San Antonio, and the assault, according to the testimony of Blumberg, occurred while he was engaged in arresting a number of Negroes he had found engaged in a dice game. He testified that appellant struck him on the side of the face with his fist and reached for his pistol while cursing him and accusing him of being a snooper. None of the other officers present testified to having seen the assault, but one testified that he later observed Blumberg's face and that it was swollen and red.
Blumberg testified that appellant objected to the arrests being made, and said to him, 'This gambling goes on every night, we know it and the chief knows it, but we are letting them go--We have a hard enough time swinging votes our way the way it is, when you see something like this you just say nothing to it and go on about your business.'
Blumberg further testified that officers Toudouze and Berlanga, who followed him to the scene of the difficulty, verified appellant's statement that gambling was being permitted and that in obedience to the demand of appellant and of Toudouze, the ranking officer present, he released the prisoners.
Appellant testified that if any gambling had been going on it had ceased before he or Blumberg arrived; that after Blumberg had ordered the Negroes brought out and placed in the patrol wagon, officer Toudouze asked Blumberg if he had seen them playing, and if he had obtained any dice or money, and Blumberg said, 'No, but load them in the wagon'; and that appellant then repeated the same question and Blumberg again said no, and he told Blumberg, 'Well, you haven't got a case.' Blumberg replied, 'Well, put them in the wagon anyway, it will do them niggers good to stay in jail over night.'
Appellant said that he took exception to this remark, and ordered Blumberg to release the prisoners, but he kept putting them in the wagon; that while he was trying to reason with Blumberg, one of the Negroes in the wagon called to him and asked to speak with him; that Blumberg was 'blocking' him, 'acted like he wasn't going to let me go to the back of the wagon' and that he pushed or brushed him aside and went on through.
Appellant denied that he cursed or struck Blumberg with his fist and denied each of the remarks attributed to him by Blumberg and Cochran, another police officer.
Officer Toudouze corroborated appellant's version of the affair and testified that he ordered the release of the prisoners when both officers Blumberg and Cochran advised him that they had not seen the Negroes gambling and had not gotten any dice or money from them.
There was no testimony to the effect that any person was engaged in exhibiting or keeping a banking game for the purpose of gaming, the state's evidence going no further than to show that officers Blumberg and Cochran saw a group of Negroes engaged in a dice game with money and dice.
Appellant prepared nine bills of exception, eight of which being refused, the trial judge filed his bills in lieu thereof. Appellant being dissatisfied with the court's bills, then filed eight bystanders bills, each of which was controverted by the state. These bills and the affidavits controverting and supporting them are before us.
In the trial court's bill No. 2, as well as bystanders' bill No. 2, it is shown that in his closing argument to the jury the assistant district attorney said,
And in the court's bill No. 3, and bystanders' bill of the same number, it is shown that the same attorney for the state said in argument, ...
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