# Stalcup v. State > Court of Criminal Appeals of Texas · January 8, 1936 · 130 Tex. Crim. 119 URL: https://www.frixlaw.com/law-library/cases/3944855 ## Case - **Full name:** Virgil Stalcup v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 8, 1936 - **Citations:** 130 Tex. Crim. 119; 92 S.W.2d 443; 1936 Tex. Crim. App. LEXIS 124 - **Precedential status:** Published - **Opinion:** Addendum by Hawkins - **Judges:** Krueger, Hawkins - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3944855 ## Opinion text ON MOTION FOR REHEARING. HAWKINS, Judge. As first ground of his motion for rehearing appellant again urges that error was committed by the trial court in permitting the State to show prior indictments of appellant for various felonies, convictions thereof, and unserved sentences thereunder. We remain of opinion that the holding of our own court in Welk v. State, 99 Texas Crim. Rep., 235 , 265 S. W., 914 , and Vines v. State, 67 Texas Crim. Rep., 355 , 148 S. W., 727 , supports the action of the trial court. *123 The reasoning in the case of People v. Scheck, 356 Ill., 56 , 190 N. E., 108 , 91 A. L. R., 1472, where similar evidence was challenged, seems unanswerable. As the second ground for rehearing appellant says this court did not discuss the point raised by him in exception to the court’s charge, and by special requested instruction that the court should have submitted to the jury whether Yarbrough, Hall and Squyers were accomplice witnesses. This has made it necessary to re-examine the facts. After having done so we fail to discover the evidence which raised any such issue. As the third ground of the motion for new trial appellant again urges complaint of three arguments of counsel representing the State, and calls attention to the fact that the bills complaining thereof were not discussed in our original opinion. They were not overlooked. In our judgment they presented no -reversible error. Our view remains unchanged, but the death penalty having been assessed, we now discuss the bills. The language of State’s counsel objected to, as shown in bill number twenty-one, is as follows: “Gentlemen, when a juror is impaneled in Lubbock County to try Clarence Brown, they’ll send him to his doom.” No recitals in the bill • advise us of the setting in which such argument appeared; that is, of what preceded or followed it. We know from the record that Brown escaped from jail with appellant and was a co-actor with him in killing the sheriff in order to effect escape. The jury knew that counsel was only indulging in guess or prophecy as to what some other jury would do when Brown was tried. We can not attribute to it the serious consequences claimed by appellant. Another argument complained of was that one of State’s counsel said: “I am serious in what I am telling you, and I am thoroughly sold on the State’s side of the- case, and I actually believe what I am saying, and I believe that this jury should inflict the death penalty.” The bill fails to show that counsel who made the argument had any knowledge of the case save that obtained from the evidence. The argument can .reasonably be construed in no other light than an expression from counsel that in view- of such evidence the death penalty should be inflicted. We see no error in this. Marinkovich v. State; 96 Texas Crim. Rep., 59 , 255 S. W., 734 ; Young v. State, 19 Texas Crim. App., 536. *124 Another statement made by State’s counsel and complained of was: “If I didn’t kill him, when Creóla in her innocent way of hers, and ask ‘Did you kill my Daddy’ — My God, if I hadn’t done it, I would have denied it.” The objection- urged was that the langauge. was “highly prejudicial, inflammatory and not supported by the evidence.” Creóla Arthur was the twelve-year-old daughter of the slain sheriff. When the shooting of her father occurred she was in the front part of the jail residence; when she heard the noise she ran out the front and around to the back door where she saw the key turning in the lock. The door opened and appellant and Brown appeared coming out of the door. Appellant had a pistol in his hand; upon seeing this the child asked appellant if he had killed her daddy. Appellant mumbled something and he and Brown passed out, got in the sheriff’s car and made their escape. It was this incident — a part of the res gestae — to which counsel alluded in his argument. We can see no basis for any complaint thereof. On account of the severity of the punishment we have again carefully reviewed the record. The punishment infllicted seems to have been richly deserved. We find no errors committed on the trial which would authorize interference with the execution of the judgment. The motion for rehearing is overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3944855. Public record. Not legal advice.