Clark v. State

Annotate this Case

244 S.W.2d 218 (1951)

CLARK v. STATE.

No. 25590.

Court of Criminal Appeals of Texas.

December 19, 1951.

*219 Dwight Whitwell, McKinney, for appellant.

Henry Wade, Criminal Dist. Atty., Charles S. Potts and Porter K. Johnston, Asst. Dist. Attys., Dallas, George P. Blackburn, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is burglary of a private residence at night; the punishment, forty years.

The indictment was returned by the grand jury of Dallas County, and the case was tried on change of venue in Collin County.

In view of our disposition of the case, a discussion of the facts will not be necessary.

Bill of exception No. 4 reflects that Mr. MacNicoll, Assistant District Attorney of Dallas County, in his argument to the jury said:

"Here is another thing, gentlemen. This fellow Clark over here, (Referring to Defendant) I wish to God that you knew him as Wade and I know him. You would know from the facts that this bird over here is capable of going into a home without rousing anybody and even carry out one of those television sets, just like he did do.

"Perhaps aided by his lookout, by his woman, that he had lived with for five long years. That his own family don't even knowrather, they say they don't know that he has a baby by this woman who was with him on this night. Gentlemen, if you are going to listen to that tribe of Clarks, you will give this defendant here, who I consider, under the facts, one of the worst men in Texas, a life sentence."

Appellant had not testified nor had he put his reputation in issue.

This argument is tantamount to unsworn testimony that the prosecutor knew appellant to be an accomplished burglar, thus injecting some new and harmful fact into the case, and constitutes such a flagrant violation of all the rules as to require a reversal hereof, even though the trial court recognized that such argument was improper and so instructed the jury in writing.

Judgment reversed and the cause remanded.