# Smith v. State

> Court of Criminal Appeals of Texas · April 20, 1921 · 90 Tex. Crim. 24

URL: https://www.frixlaw.com/law-library/cases/3983608

## Case

- **Full name:** Wallace Smith v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 20, 1921
- **Citations:** 90 Tex. Crim. 24; 232 S.W. 497; 1921 Tex. Crim. App. LEXIS 6
- **Precedential status:** Published
- **Opinion:** Addendum by Morrow
- **Judges:** Hawkins, Morrow
- **Cited by:** 16 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/3983608

## Opinion text

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ON REHEARING.
June 24, 1921.
MORROW, Presiding Judge.
The language used by the prosecuting attorney, in referring to'appellant’s wife, is thus stated in the bill:
“. . . she and she alone, was the only eyewitness to the killing except the defendant, and that she could and would tell how the killing took place but that the State was powerless to put her on the witness stand as a witness, and that the defendant, and the defendant alone, could place her on the witness stand and let her testify. This he refuses to do but keeps her mouth closed and if she could only testify she would tell you how her mother was murdered by the defendant.”
The fact that the State’s attorneys called attention to appellant’s failure to use his wife as a witness and to the fact that he alone could so do is not complained of, but the criticism is addressed to the language chosen and quoted above as transgressing the rule forbidding counsel in argument to state facts not in evidence; that the expressions: “She could and would tell” and “she would tell how her .mother was murdered by the defendant” was a statement of fact rather than an inference from the evidence before the jury. Doubtless, more appropriate language might have been chosen. In the light of the record, that is, the testimony of the witnesses and the facts necessarily before the jury in the instant case, we are yet of the opinion that the argument furnishes no just ground for a reversal of the judgment.
Appellant’s wife was a daughter of the deceased. There was evidence that before the homicide her relations with the appellant were unsatisfactory to a degree that a separation resulted. In a controversy growing out of it, the deceased, in the presence of her daughter, was killed by the appellant; that it was accidental was his theory; that it was intentional and malicious was the State’s theory. All of this was before the jury, and in addition thereto, they knew that the appellant did not use his wife as a witness. . They were legitimately told that he might have done so had he wished but that the State could not. They knew from the evidence that her situation was such as would enable her to relate what took place at the time of the homicide. These matters were the basis of legitimate argument. We cannot persuade ourselves that they would not suggest the inference that the appellant refrained from using his wife as a witness because of his knowledge that she was unfriendly would not give evidence supporting his theory. The language used by the prosecuting attorney, while not the best that might' have been selected for that purpose, was adapted to press upon the jury’s attention this legitimate inference.
The other matters referred to in the motion for rehearing, all of which were urged upon the original hearing, have been re-examined in the light of the motion. We are not able to bring our minds in accord
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with the contention of appellant’s counsel that a proper disposition of the questions raised was not made in the original opinion.
We therefore overrule the motion for rehearing.
Overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3983608. Public record. Not legal advice.