Tardy v. State

• Decision Date: 17 February 1904
• Parties: TARDY v. STATE.
• Court: Texas Court of Criminal Appeals

78 S.W. 1076

TARDY v. STATE.

Court of Criminal Appeals of Texas.

February 17, 1904.

Appeal from District Court, Caldwell County.

J. D. Tardy was convicted of murder, and appeals. Reversed.

W. K. Baylor and Moore, Hearrell & Moore, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

Bill of exceptions No. 1 complains that, during the selection of the jury, Lee Bear and Jim Taylor were duly and legally summoned talesmen after the exhaustion of the special venire, and were each asked the following question by appellant's counsel: "Whether he had formed an opinion as to the guilt or innocence of the defendant from what purported to be the facts in the case, and from what he had heard of the case, and each juror answered in the affirmative—that he had formed an opinion. And each juror was further asked if it would require other and different evidence to change his opinion. Each answered it would." Whereupon defendant's counsel challenged each of said jurors for cause, and the court overruled the challenge, and compelled defendant to peremptorily challenge said two jurors. And defendant took two other jurors, to wit, Jim Richburg and Dick Winfrey, whom he would have challenged peremptorily but for his challenges having been exhausted by the action of the court in declaring the two jurors Bear and Taylor qualified jurors. The court approved this bill, with the following explanation: "The court had already asked the two jurors the statutory question, and in answer to which they said they had formed no such opinions as would in any way affect their verdict, and such opinion as they had formed was only such as every man would form, based merely upon rumor. And the court further asked each of said jurors if there was established in their minds such an opinion, from hearsay or otherwise, as would influence their verdict, and each answered they had not. Each of said jurors answered that nothing that they had heard would influence them in their verdict. And the court, being of opinion that each of said jurors was impartial, and had no such opinion as would influence their verdict, ruled they were qualified to serve as jurors." The explanation of the court shows there was no error in the ruling.

Bill of exceptions No. 4 complains of the following language used by the district attorney in closing his argument to the jury: "Gentlemen of the jury, you acquit this defendant on these facts, and it will cause more murders to follow." To which statement of counsel, defendant objected by his attorney, and asked that said language be withdrawn from the jury, and that the jury be instructed not to consider the same, which objection was overruled, and defendant excepted. No special charge was requested by appellant, requiring the jury to disregard this argument. We cannot say it is of such a character as would necessarily prejudice appellant to such an extent as would authorize a reversal.

Appellant asked the court to give the following charge: "You are further instructed in this cause that defendant is a competent witness in his own behalf, and you are the sole judges of his testimony, and you should judge and weigh it as you would the testimony of any other witness." This charge was refused. In this there was no error. It is never proper for the court to single out the testimony of any witness, and give a charge similar to the one asked. Defendant's testimony, under the law, stands as any other witness, but it is not proper for the court to charge thereon.

In motion for new trial, appellant complains of the following portion of the court's charge: "The...