Love v. State

DAVIDSON, Judge.

Appellant was convicted of disturbing religious worship, his punishment being assessed at a fine of §25. The witness Poteet, over appellant’s objection, was permitted to testify that he (appellant) went to Poteet’s field the day previous to the trial armed with a club, assaulted Poteet with it, saying, “I am going to kill you. I told you I would kill you for what you have done.” Witness ran. Defendant pursued, and struck him with the club. On cross-examination, Avitness stated he did not know. Avhy defendant assaulted him, and knoAV of no threats made against him by appellant. We think, under the facts of this case, the evidence Avas clearly admissible. When, on the night of the disturbance averred in the indictment, the witness and Vannoy expostulated with appellant in regard to his “conduct in the church, appellant became enraged, and cursed and abused them, and, on parting from them, said he would see them again. If the assault was because of the fact that Poteet was prosecuting him and testifying against him, the testimony was admissible; and, under the facts of this case, Ave think this inference was clearly deducible. It Avas a relevant fact.

2. Mrs. Allimon and J. A. Hill, witnesses for the accused, were asked by him if ‘ ‘Vannoy had made statements to them, since tliis case had been pending, expressing his feelings towards defendant, and if so, repeat such statements as near as you can?” The bill of exceptions does not indicate what reply was expected, nor does it in any way intimate what their testimony Avould have been. The bill cannot be considered. Willson’s Cr. St., 33 2368, 2516.

3. By the same Avitnesses, appellant offered to prove the words, acts and conduct of Vannoy and Poteet showing their intolerance of appellant because of theological differences of opinion betAveen them, and the further fact that the tAvo Avitnesses had ceased to attend the church of Avhich they and Vannoy and Poteet were members, because of Vannoy’s and Poteet’s quarrelsome nature. None of their acts, words, or conduct are stated in the bill, and we are not informed as to what they were. Nor is it perceived how the fact that these church members quarreled among themselves could avail appellant on this trial. It may have been in bad taste, and indicated a Avant of love and charity among themselves, but hoAV this could have extenuated appellant’s conduct, or would have been a relevant fact in his favor in this case, is not easily imagined, and is not made to appear.

4. The remarks of counsel for State were not authorized, and should have been avoided. The court says, in explanation of the bill of exception that counsel for appellant had made violent attacks upon the State’s Avitnesses, and in this connection the violent language complained of was used. The language used by the same counsel found in a subsequent bill was unwarranted and dehors the record. But in both instances the *30 court reprimanded counsel, and instructed the jury to disregard same. While the remarks were improper, we do not think they were of such character as to require a reversal. House v. State, 19 Tex. Crim. App., 227; Pierson v. State, 18 Tex. Crim. App., 524; Young v. State, 19 Tex. Crim. App., 536; Willson’s Cr. St., § 2321.

The following excerpt from the court’s charge was excepted to as being erroneous, to-wit: “You are further instructed that the statute protects a congregation so long as any one of them are on the ground, either before, during or after services.” The evidence adduced shows the disturbance occurred in the house during services, as well as just outside of the church immediately after services closed, and while the congregation were passing out from the house. This charge was correct as applicable to the facts of this case. Dawson v. State, 7 Tex. Crim. App., 59.

We are of opinion the evidence supports the verdict. The judgment is affirmed.

Affirmed.