Taylor v. State

• Citation: 100 S.W. 393
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Decision Date: 23 January 1907
• Parties: TAYLOR v. STATE.

100 S.W. 393

TAYLOR v. STATE.

Court of Criminal Appeals of Texas.

January 23, 1907.

Rehearing Denied March 13, 1907.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Bossey Taylor was convicted of homicide, and appeals. Reversed.

C. A. Lord, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

Bill of exception No. 1 complains of the following statement in the argument of the county attorney: "I am well enough acquainted with this class of niggers to know that they have got it in for the race in their heart, and in their hearts call them all white sons of bitches." Defendant then and there, in open court, objected, and asked the court to reprimand the county attorney, and to admonish him against the use of such references to the defendant, to which the court only replied, "You can have your bill of exception," and failed and refused to reprimand the county attorney.

Bill of exception No. 2 complains of the following statement in the argument of the county attorney, to wit: "The only punishment you can give this negro bully is to end his earthly career. If you send him to the penitentiary, it will not reform him. He has been in the penitentiary for assault to murder, and it has had no effect on him. And he goes out the first thing and gets a big six-shooter, and goes to killing. He has been tried in the penitentiary, and that does no good, and you must not give him another chance in the penitentiary, for, if you do, he will watch his opportunity to kill the guards and escape." The language of the county attorney in his argument to the jury, as disclosed by these two bills of exception, was highly inflammatory and prejudicial to the rights of appellant, and the court should not only have reprimanded the counsel, but should have charged the jury to totally disregard such argument. The penalty in this case, as above stated, was death. Here we have the county attorney demanding of the jury that they should not consider whether the facts authorized murder in the second degree or not. He states in his argument that it would do no good to confine appellant in the penitentiary, as he would kill the guards and escape. This is not legitimate argument; in fact, no argument at all. As to what appellant should do in the penitentiary or would do, even conceding that he would kill the guard, which there is no evidence in this record to indicate, would not be a legitimate basis for forming a conclusion as to whether or not he was guilty of murder in the first or second degree. The defendant is entitled to a fair and impartial trial. The counsel should confine his arguments to proper and legitimate deductions of the evidence adduced upon the trial of the case. We apprehend that the facts in this case give as little excuse for resorting to extraneous matters to prejudice the jury as most cases that are tried in the courts of this country, but here we have the county attorney resorting to race prejudice, in the first instance, to extort from the jury a death penalty, and, in the second instance, we have him using the fact that the defendant had been previously confined in the penitentiary as a reason why he should not be again confined. The fact of appellant having previously been in the penitentiary was admitted by the...