Cox v. State

GRAVES, Presiding Judge

(dissenting).

This cause was previously affirmed in the opinion dated December 5, 1951, in which Judge Woodley, speaking for the court, held that Bill of Exception No. 2, reflecting the remark made by the state’s attorney to the jury wherein he said, “The people of De Soto are asking the jury to convict this defendant” failed to show reversible error. In the opinion it is shown that upon objection to such argument the court immediately instructed the jury not to consider the same but appellant did not request the trial judge to declare a mistrial but stood upon his objection alone. This remark was not found to' be injurious in the original opinion, nor was it found to be harmful by the trial judge wherein he qualified the bill as follows:

*139 “The Court sustained the objection of the Defendant to these remarks and instructed the jury not to consider them. The Court does not certify that said remarks were inflammatory in nature, nor did they prejudice the rights of the Defendant before the Jury.”

It will be observed from the record that Precinct No. 5 in Dallas County, seemed to have an election relative to the prohibition of intoxicating liquor in 1891, and that such election resulted in favor of the prohibition of the sale of such beverage within that precinct.

Appellant was charged with the sale of such liquor in said local option precinct in said county in the case now before us. It was necessary to allege such election and to set forth the result thereof, as well as to allege and prove that the sale of such intoxicating liquor in said Precinct No. 5 in said county was contrary to law, and that the order had been published by the commissioners’ court of said county prohibiting the sale of such intoxicating liquor in such precinct, all of which was the direct result of the vote of the people of that precinct and evidently was the wish of the majority thereof. This was set forth in the information and was read before the jury. Not only that, but it was stipulated by the defendant in open court that such election had been held by the people of Precinct No. 5 and that such had resulted in the prohibition of such sale. Furthermore, the court had instructed the jury that said election had resulted in the prohibition of the sale of such intoxicating liquor in said Precinct No. 5, and it was against the law to sell same in such precinct.

We think that the mere casual reference contained in the above-quoted statement made by the state’s attorney was of such slight importance that it could be removed from the minds of the jury by an instruction from the court not to consider the same.

Unquestionably, De Soto having been proven to be in the local option precinct, the people thereof had a right to expect the law to be enforced; and the fact that the statement was made that the people of De Soto were asking the jury to convict this defendant could have had no serious effect on any proceedings had therein, especially after the trial court had instructed the jury not to consider such remark.

I see no reason for sending this case back for another trial because of this casual reference by the state’s attorney, and *140 therefore respectfully dissent from the judgment of my brethren in reversing the case because of such allusion.