Molloy v. State

14 S.W.2d 1032, 111 Tex. Crim. 493, 1928 Tex. Crim. App. LEXIS 863

• Court: Court of Criminal Appeals of Texas
• Decided: June 23, 1928
• Docket: No. 11886.
• Status: Published

Opinions

LATTIMORE, Judge.

Conviction for resisting an officer, punishment, a fine of $100.00.

Appellant’s first bill of exceptions complains that a witness was permitted to answer a question “What was his condition at that time with reference to being drunk or sober?” The objection was that witness had not qualified and did not show that he knew the differ ence between being drunk and being under the influence of intoxicating liquor. The objection was overruled and the witness testified that he thought appellant was drunk. Stewart v. State, 38 Tex. Cr. R. 627. We see no error in this. Substantially the same complaint appears in bills of exception Nos. 2, 3 and 5.

Bill No. 4 complains of the action of the trial court in sustaining the State’s objection to a question propounded to the officer, resistance of whose effort to arrest appellant seems to be the State’s case. Appellant wanted to have said witness testify that prior to the time of trial he, appellant, had been arraigned in the justice court on a charge of, disturbing the peace, and that the complaint upon which he was tried was signed and sworn to by the witness, and that the charge in the complaint was for conduct arising out of the same facts and transactions as in this case, and that the defendant was tried and acquitted on said charges. We fail to see the materiality of this testimony, and are of opinion that the court correctly sustained the objection.

There is complaint made in bill of exceptions No. 6 of argument made by the prosecution in effect asking the jury to stand by their officers who were protecting the lives and property of the citizens while they sleep, and urging the jury to uphold the officers in the enforcement of the law, because crime is on the increase and the only way to stop it is to convict those charged, that some crime is in the paper every day, and if we do not uphold the officers we might as well quit. As we understand this bill the court instructed the jury not to consider the argument. There appears in the record no written instruction asked by appellant to that effect. We do not deem the argument of such injurious effect as to render it incapable of being remedied by the instruction. There is complaint further of an argument of the State’s prosecutor in effect that the jury need not be afraid of any suits .being brought against the sheriff or his bondsmen because of the acts of his deputy sheriff Brandon, in connection with this case. Defiance of defendant’s attorneys to bring suit against them, or for any lawyer in Texas to bring such suit, was. presented in the argument. We find in the record no request in writing that the court instruct the jury not to consider such remarks. It did not relate to the criminality of the accused. We do not quite comprehend how it can be believed fo have been material either way.

The testimony in the case was conflicting, but that of the State seems to sufficiently support the proposition that appellant was drunk in the town of Eden and resisted arrest when attempted by a deputy sheriff, and that he made an assault upon said officer.

Finding no error in the record, the judgment will be affirmed.

Affirmed.