Warthan v. State

• Decision Date: 10 January 1900
• Citation: 55 S.W. 55
• Parties: WARTHAN v. STATE.
• Court: Texas Court of Criminal Appeals

55 S.W. 55

WARTHAN v. STATE.

Court of Criminal Appeals of Texas.

January 10, 1900.

Appeal from district court, Red River county; E. S. Chambers, Special Judge.

Will Warthan was convicted of murder, and he appeals. Reversed.

J. C. Hodges and H. B. Birmingham, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of 20 years; and he prosecutes this appeal.

Appellant placed George McBride on the stand as a witness in his behalf, and after his examination in chief the state asked him in regard to a conversation he had previously had with the district attorney, and, among other things, this question was propounded: "Did you not tell me [meaning the district attorney] during the last term of this court, and a month or six weeks after Barney Gray was killed, that the Warthans had come to you to try to get you to help Will Warthan out, by swearing falsely, and said, if you would do so, that they would help your brother Jim McBride out; and did you not tell me [meaning the district attorney] at that time that you told them that you knew nothing that would help Will Warthan, and was not going to get mixed up in the matter; and did not the district attorney then ask you which one of the Warthans made you this proposition, and did you not then tell the district attorney that it was Mrs. Warthan, defendant's wife?" This question was objected to as being irrelevant and as being hearsay; the defendant not then being present, and not being bound by any conversation occurring between the witness and his wife. It appears that this objection was overruled by the court, and the witness answered in the negative; that is, that he had no such conversation with the district attorney. Clearly, the question here asked was inadmissible, as it sought to elicit matters purely hearsay,—the defendant not being present at the time; and, had the witness answered in the affirmative, it would have been error. But the witness denied any such conversation. While the court should not have permitted the question, yet the mere asking of the question, when answered negatively, we do not believe was calculated to prejudice appellant,—certainly not to that extent requiring a reversal of the case.

During the closing argument for the state, the private prosecutor, representing the state, used the following language, to wit: "That Jim McBride, a witness for defendant, had lied like a tombstone; that they lied more than any other inanimate objects; but that there was one that did not lie, and it was the plain shaft that was reared to poor, humble Barney Gray, back in old Mississippi, and which had upon it, `Murdered at Annona, Texas, on October 22nd, 1898,'—if the facts be true." While it is sometimes difficult to determine the latitude which will be permitted in legitimate argument, we do not believe it is ever permissible to go out of the record, and to state facts, and not deductions merely from facts proven. In this case a fact was stated by counsel, not in evidence; neither could it have been. It occurs to us that the court should have reprimanded counsel, and have instructed the jury to disregard the statement. However, no charge was asked in this case on the subject, and the current of decisions indicates that the proper practice would require that a written charge should be asked and refused, before this court would make the illegitimate argument the basis for reversal. Certainly, before we would feel called on to interfere, it must be shown that there was a very gross violation of the right of legitimate argument, and that such violation was calculated to injure or impair appellant's rights. Young v. State, 19 Tex. App. 536; Matthews v. State (Tex. Cr. App.) 38 S. W. 172; Gilmore v. State, 37 Tex. Cr. R. 178, 39 S. W. 105; Norris v. State, 32 Tex. Cr. R. 172, 22 S. W. 592; Pennington v. State (Tex. Cr. App.) 48 S. W. 507.

Appellant, by his third and fourth bills of exception, complains of the action of the court in refusing to give certain requested instructions. The court, however, certifies that no written instructions were requested, and the suggestion of such instructions was only made in the argument of counsel for appellant. Appellant further complains in his motion for new trial that instructions were not given by the court upon the subjects indicated in said bills. If the evidence raised the issues embodied in said bills, and same was not covered by the charge of the court, then appellant has some grounds of complaint. The first of these bills suggests, in substance, that appellant had a right to arm himself with his pistol, to protect his place of business and suppress a breach of the peace, and order deceased or others out, who were making such disturbances, and to use such force as was necessary to put them out, and that he could only be held amenable for the offense in case he used more force than was necessary. The court gave a charge on self-defense, which we think covered this phase of the case as presented by the evidence. Bill No. 4 complains of the action of the court in failing to charge the...