Anglin v. State

Court of Criminal Appeals of Texas

Anglin v. State

80 S.W. 370, 47 Tex. Crim. 109, 1904 Tex. Crim. App. LEXIS 235

CourtCourt of Criminal Appeals of Texas

DecidedApril 13, 1904

DocketNo. 2722.

StatusPublished

Cited by2 cases

This text of 80 S.W. 370 (Anglin v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anglin v. State, 80 S.W. 370, 47 Tex. Crim. 109, 1904 Tex. Crim. App. LEXIS 235 (Tex. 1904).

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Opinion

BROOKS, Judge.

Appellant was charged by information "with unlawfully keeping and exhibiting for the purpose of gaming a gaming table and bank;” was convicted, and his punishment assessed at a fine 'of $25 and ten days confinement in jail. The only error we deem necessary to review is disclosed by the sixth bill of exceptions, which shows that after the testimony for the State and defendant closed, the county attorney made his first argument, and the defense made one argument; and then the county-attorney proceeded to making his closing argument, and used the following language: "Gentlemen of the jury, the defendant A1 Anglin has not testified in his own behalf in this case; under the law he can not be made to testify, but I ask you the question, if he did not desire to testify he could have secured others to testify in his own behalf; this he has not done.” To this language appellant’s counsel excepted; and the court instructed the jury to disregard the utterances made by the county attorney with reference to the failure of the defendant to testify in his own behalf. The court appends to the bill the statement that he understood the county attorney to say, "Mr. Hart was right in saying that you could not consider the failure of the defendant to testify in his own behalf in this case; under the law he can not be made to testify. It is a valuable right which I am not allowed to discuss, but I can ask you the question, why has he not secured others to testify in his behalf? Those with whom he associated at that time and who know his business are familiar with his movements and actions. This he has not done.” It will be noted that the qualification of the court does not controvert the statement in the bill; but merely states the matter as he understood it. However, the qualification does not disclose who Mr. Hart was. We can not indulge presumptions in aid of a bill of exceptions. We presume that Mr. Hart was appellant’s counsel, and that the county attorney’s remarks were in answer to the remark of appellant’s counsel. This being true, we must hold that the language in either event violated the plain letter of the statute which inhibits the county attorney from commenting upon and alluding to the failure of the defendant to testify. The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.

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BROOKS, Judge.

Appellant was charged by information "with unlawfully keeping and exhibiting for the purpose of gaming a gaming table and bank;” was convicted, and his punishment assessed at a fine 'of $25 and ten days confinement in jail. The only error we deem necessary to review is disclosed by the sixth bill of exceptions, which shows that after the testimony for the State and defendant closed, the county attorney made his first argument, and the defense made one argument; and then the county-attorney proceeded to making his closing argument, and used the following language: "Gentlemen of the jury, the defendant A1 Anglin has not testified in his own behalf in this case; under the law he can not be made to testify, but I ask you the question, if he did not desire to testify he could have secured others to testify in his own behalf; this he has not done.” To this language appellant’s counsel excepted; and the court instructed the jury to disregard the utterances made by the county attorney with reference to the failure of the defendant to testify in his own behalf. The court appends to the bill the statement that he understood the county attorney to say, "Mr. Hart was right in saying that you could not consider the failure of the defendant to testify in his own behalf in this case; under the law he can not be made to testify. It is a valuable right which I am not allowed to discuss, but I can ask you the question, why has he not secured others to testify in his behalf? Those with whom he associated at that time and who know his business are familiar with his movements and actions. This he has not done.” It will be noted that the qualification of the court does not controvert the statement in the bill; but merely states the matter as he understood it. However, the qualification does not disclose who Mr. Hart was. We can not indulge presumptions in aid of a bill of exceptions. We presume that Mr. Hart was appellant’s counsel, and that the county attorney’s remarks were in answer to the remark of appellant’s counsel. This being true, we must hold that the language in either event violated the plain letter of the statute which inhibits the county attorney from commenting upon and alluding to the failure of the defendant to testify. The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.

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Bluebook (online)

80 S.W. 370, 47 Tex. Crim. 109, 1904 Tex. Crim. App. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anglin-v-state-texcrimapp-1904.

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