Ardry v. State

HAWKINS, Judge. Conviction was for assault with intent to murder. Punishment assessed at two years in penitentiary. Appellant was charged with assaulting one Butler Davis; all parties were negroes. It is not necessary to set out the evidence. It is sufficient to sustain the findipg of the jury. Immediately after the assault on Butler Davis (who was an old negro man) several of his sons seem to have severely “man-handled” appellant in resentment of the attach on their father. The trouble arose over a controversy as to whether dinner should be served in church or out on the church grounds. Only one bill of exceptions appears in the record. While the prosecuting attorney was making his closing argument he said: “Gentlemen of the jury, Mr. McLaurin got out of the record and told you that he had been knowing the prosecuting witness, Butler Davis, for a long time, and what a notorious character he had been, but he did not take the stand and testify. Mr. McDaurin didn’t tell you about the Ardry negroes, and that two of them had been to the penitentiary.” When objection was made, the court' admonished the district attorney to stay in the record. It does not appear any further objectionable language was indulged in, and no charge was requested directing the jury to disregard the argument. It is to be regretted that so many cases before this Court disclose the fact that attorneys on both sides in many instances are seized with an uncontrollable desire to discuss matter de hors the record. The prosecuting attorney seems to have been provoked to his breach of legitimate argument by similar action on the part of opposing counsel. Of course, the proper practice would have been to have objected to appellant’s counsel making the improper argument in the first instance, and not have resorted to like infringement of the rules in reply. There was no intimation that appellant had been to the penitentiary. In the absence of a special charge requesting withdrawal of the improper statement, we do not feel in face of the provocation, to hold the remarks reversible error. Branch’s Crim. Daw, p. 32, Sec. 62, Collation of authorities. Norris v. State, 32 Texas Crim. Rep., 172. The judgment is affirmed. Affirmed.