Lagow v. State

DAVIDSON, Presiding Judge. Appellant was convicted under a charge that he conveyed a file to Joe Crockett, who was confined in the jail under a charge of felony, and for the purpose and with the intent of aiding Joe Crockett to escape from the jail. A bill of exceptions recites that, “while appellant was on the witness stand, and after testifying in his own behalf, he was asked on cross-examination by State’s counsel, in the absence of any testimony that local option was in effect in Hale County, Texas, at the time inquired about, whether or not he had been indicted in the last two years in Hale County for violating the local option laws.” Various and sundry exceptions were reserved to this, among others, that there was no evidence to the effect that local option was in effect. This was offered presumably for the purpose of impeaching appellant. This bill is qualified by the judge in the following language: “The violation of the local option law being a felony in Hale County, the question was permitted as affecting the credibility of the defendant while a witness on the stand and in the court’s charge said testimony was so limited.” If the judge desired to testify in the case he should have been sworn as any other witness in regard to matters of this character. The court can not judicially know that local option was in effect. This has been so often decided it would seem unnecessary to refer to the authorities. If as a matter .of fact the felony statute with reference to local option *462 was in effect in that county, it should have been shown as required by law. That law can not be put into operation except by special election held for that purpose. The courts do not judicially know that such election has been held. It must be proved as required by law. The court’s qualification under the authorities can not be considered. Leonard v. State, 109 S. W. Rep., 149; Graham v. State, 72 Texas Crim. Rep., 9, 160 S. W. Rep., 714. If local option was in effect in the county, it could not be used as a matter of impeachment if under the misdemeanor statute, but in no event could the judge take judicial knowledge of the fact that it was in effect either as a misdemeanor or a felony. As this matter is presented appellant could not be impeached in the manner that the bill indicates. Another bill recites that the district attorney in bis opening argument stated to the jury: “You know the defendant is guilty, because the officers have been 'chousing’ him for the last five or six years for violating the local option laws.” Various objections were urged to this matter. “The court instructed the jury not to consider any statement made by the district attorney concerning the defendant’s being 'choused’ for violating the local option laws.” This is the bill of exceptions as copied in the record. The previous bill recited there was no testimony offered on the trial as to the local option law being in effect in that county. This is a case of circumstantial evidence, weak and inconclusive in its nature. It is on close lines if not more than doubtful that the evidence is sufficient. The matters complained of in the two bills mentioned may have had the effect of turning the scale against appellant in the minds of the jury. Counsel will not be permitted to state facts in his argument that are not in evidence, and especially if it has a tendency to damage the defendant before the jury. For the reasons indicated the judgment will be reversed and the cause remanded. Reversed and remanded. July 19, 1917.