Burrell v. State (138 S.W. 707, 1911)

HARPER, J.

Appellant was charged with violating the local option law. He was convicted, and his punishment assessed at a fine of §75 and 60 days’ imprisonment in the county jail.

There are several assignments in the record complaining of the argument of the prosecuting officer. Proper bills of exception were reserved thereto at the time, and to the refusal of the court to give special charges, requested, withdrawing these remarks from the consideration of the jury. As shown by the three bills of exception, the following remarks were used by the prosecuting officer, and their withdrawal requested by special instructions:

(1) “Xou are instructed that the argument of the counsel for the state, wherein he says: ‘If you do not convict Bob Burrell in this case under these facts, you had as well wipe the local option law off of the statute books and tear down your courthouse.’ Such argument is improper, and should not have been engaged in by Mr. Strong, and you will, therefore, not consider it for any purpose.”

(2) “Xou are instructed that the argument of the state’s attorney, wherein he says: T don’t blame Judge Middlebrook for objecting to my argument in opening this case as to tearing down the courthouse and wiping our local option statute off the books; and I repeat, if you jurors are going to acquit this defendant on as plain a state of facts as is before you in this ease, you had just as well wipe our local option law oft the statute books, and turn bootleggers loose in this county, and let them keep and sell liquor by the gunny bag full.’ The argument was improper, should not have been indulged in by the state’s attorney, and you are instructed not to consider it for any purpose.”

“Xou are instructed that the argument of Mr. Strong, attorney for the state, wherein he said: ‘If you do not convict Bob Burrell in this case, you had as well wipe our local option law off the statute book. Why! gentlemen of the jury, our Legislature has just recently passed a law making it a penitentiary offense for such bootleggers as Bob Burrrell to ply their trade in Texas; and on account of our county having voted the local option law in effect in Nacogdoches county before the Legislature passed that law, we can’t prosecute them under the penitentiary statute in this'county, and I think that, such being the case, you should not give Bob Burrell a $25 fine and 20 days in jail in.this case, but give him the severest penalty, and teach him that bootleggers like him cannot go around the county peddling out liquor by the gunny bag full and besmirch and ruining of the young men of this county.’ Such argument was improper, and should not have been made by the state’s attorney to you, and you will, therefore, not consider it for any purpose.”

These special charges should have been given. Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812, and authorities there cited.

The other grounds in the motion for a new trial present no error. The allegation of newly discovered evidence is not supported by the affidavits of the witnesses, nor by any testimony.

We would respectfully' suggest that prosecuting officers in their argument keep within the record, and thus prevent the necessity of a reversal. This court in its former decisions has gone so far as to say, when if can, that no harm resulted from such remarks; but in this case, when we take the evidence into consideration and the punishment, we cannot so hold.

The judgment is reversed, and the cause is remanded.