
    HOLLINGSWORTH v. STATE.
    (No. 4531.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    Dissenting Opinion, Dec. 31, 1917.)
    1. Criminal Law <@=>726 — Retaliatory Argument.
    Where alleged improper argüment of the state’s counsel was occasioned by an improper argument of defendant’s counsel, defendant cannot complain.
    2. Criminal Law <@=>726 — Improper Argument — Invitation.
    In a prosecution for incest committed with defendant’s niece, where letters from defendant to her and from her to him were in evidence, none of which specifically responded to his letter inquiring what was the matter or informed him that she had given birth to a child, his counsel, by commenting upon the facts proven, did not invite the state’s counsel to discuss her alleged letter to defendant stating the birth of a child, but which was not in evidence.
    3. Criminal-Law <@=3720(7) — Argument—Inference prom Evidence.
    Where numerous letters from defendant and his niece were in evidence, none of them stating that she had given birth to a child or was about to do so, or suggesting the existence of such letter from her, the inference that she had written and that defendant had received such a letter was not justified.
    4. Criminal Law <@=3721½ (2) — Argument-Absence op Admissible Evidence.
    The absence of inadmissible evidence that defendant had received a letter from his niece informing him that she had given birth of a child could not be used in argument as evidence of his guilt.
    5. Criminal Law <@=31171(3) — Argument—Inadmissible Evidence — Eppect.
    The argument of the state’s counsel, with a paper before him, that the niece had written to defendant a letter informing him that she had given birth to a child, which he had suppressed, so that it was not available to the state as evidence, thus bringing new and damaging matter to the jury by way of innuendo, and not by direct statement or by way of proof at the trial, required setting aside a verdict of guilty.
    Prendergast, J., dissenting.
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Alfred Hollingsworth was "convicted of incest, and he appeals.
    Reversed, and cause remanded.
    See, also, 182 S. W. 465; 189 S. W. 488.
    D. W. Odell, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of incest with Cassie Dunn, Ms niece. The act of intercourse was sharply controverted. Cassie Dunn, who was a member of the family of the • appellant, on the trial testified that she gave birth to a child on the 29th day of October, 1914; that appellant was the father of the child. In her testimony it was developed that on the first trial of appellant she denied the intercourse with appellant, and testified that Henry Dollins was the father of her child; that on the second trial she again denied intercourse with appellant, and denied that the other named by her on the first trial was the father of her child, and declined to state who was, and on the trial from which this appeal is prosecuted she testified, as above stated, to a series of acts of intercourse with appellant, and that he was her child’s father. A number of letters were introduced in evidence written by Cassie Dunn to appellant, and letters written by the sister of Cassie Dunn to her, which letters were dictated by-appellant. One of the letters so written or dictated by him bore date 22d day of November, 1914. There was no reply to this letter introduced in evidence.

One of the bills of exception discloses the following procedure:

“While the district attorney was presenting to the jury his closing argument on behalf of the state, he used the following language and argument, to wit: ‘Mr. Sadler stated to you in his argument that you might read all the letters written by Cassie Dunn to- the defendant and all the letters w'ritten by the defendant to Cassie Dunn in evidence before you, and you would not find in any of the letters where Cassie Dunn had, in apswer to the defendant’s request to know what was the matter with her, ever stated what was the matter with her, or had ever told him that she had given birth to a child. Now, gentlemen, in the letter written by the defendant on November 22, 1914, the defendant said: “An I am the, same fellow when you saw me last and I wait to noe now Cassie you want to come home, and I want to know what is the matter with you, and just as soon as I get the news I will send you the money to come on and noebody never has read your letters aild won’t. Your Pa has wrote some letters here and I want to noe if you are alright and I want to noe just what is the matter.” And counsel for the defendant says that she never told the defendant what was the matter with her. Gentlemen of the jury, where did these letters come from? The letters written by Cassie Dunn to the defendant came from his possession. Have we all of the letters? Now suppose that on November 24, 1914, Cassie Dunn answered the letter of the defendant, and suppose she said to him in answer to that letter: “I don’t want to tell you a lie, and I will not if the truth kills me. You know what you thought was the matter with me. It was so. It came the 29th of last month. It is a boy and alright; has the bright eyes. I intend to bring it to Ft. Worth to one of the rescue homes. You know it was nobody else but you, but I will die before I will tell it. I have told Pa a story. Never told you any story. You may think I am not as good as I was. I know I am to blame for it. So you see what I wanted with the money. It was for Bailey. He charged me fifteen dollars, so you see that would.be enough for me to go to Ft. Worth. I can’t help what Pa write down there. He has done everything he can to get me to tell him. I’ll die first. I told you I would not tell, and I have not yet. Do as you like, cast me off if you want to, but I’ll never tell it. I spent my money for fruit and the rest for the boy, some close for the boy, and that is why I wanted you to come to meet me. I wanted you to see him. Don’t let Fannie read this.” Now, gentlemen, Cassie might have written such letter. If she did write such a letter, we haven’t got that letter. The defendant didn’t give us that letter.’ While the district attorney was giving the contents of this supposed letter, he had lying before him on the table, in the presence and sight of the jury, purported copy of a letter supposed to have been written by Cassie Dunn to the defendant which had not been offered in evidence, and which said copy had been held in a previous appeal of this case not to be admissible in evidence, and he was leaning over quoting from said purported copy in the presence and sight of the jury, and quoted and repeated the language of the supposed letter as it was contained in the said purported copy which had not been introduced in evidence. Thereupon counsel for the defendant, during the recital by the district attorney of the contents of said supposed letter, called the attention of the court to the fact that the district attorney was reading to the jury the contents of the said copy of the said supposed letter and objected thereto, and the court did not stop counsel for the state, but permitted said counsel to continue his statement and to read from said copy of said supposed letter to the jury, and to continue his said argument. And counsel for the defendant objected thereto, and stated to the court that said copy was not in evidence; that counsel was out of the record, and was presenting to the jury evidence which had not been admitted under the rulings of the court, and was placing before the jury the contents of the copy of the supposed letter which had not been offered in evidence and which was not evidence before the jury.”

After excepting to the refusal of the court to sustain an objection to the argument mentioned, the appellant in due time presented a special charge requesting that it be withdrawn. ■ In qualifying the bill the court says:

“It is proper to state that such argument was in reply to argument of the defendant’s attorney and was inspired and incited by said argument. Furthermore, the letter first referred to in the bill was one written by the defendant, and was introduced in evidence and before the jury, and I considered it a legitimate subject of comment. The letter so introduced was one of the letters brought into court by the defendant and filed by him in connection with his motion for new trial after his first conviction and claimed by him to be newly discovered evidence, and essential to his defense, as the record of this case on the first appeal will show”

—and further that the district attorney did not claim that such letter had in fact been written, but stated that, if such letter had been written, he did not have it, and no such letter had been brought into court by the defendant, and that it was not in the state’s possession, and that in the opinion of the court the argument was not an unauthorized deduction or supposition.

The supposed) letter copied in the bill is in the exact verbiage of the purported copy of a letter which was introduced in evidence by the state on a previous trial of this case, and which is copied in the report of the case in 182 S. W. 479, and which this court in that case held to be inadmissible. See opinion on motion for rehearing, Hollingsworth v. State, 182 S. W. 481. The reasons for excluding the letter are fully stated in the opinion mentioned. A comparison of the composition of the supposed letter with that of other letters of the witness, which were before the jury on this trial, develops a marked similarity.

If the argument of state’s counsel was permissible under the rule of invited argument, that is, occasioned by an improper argument of counsel for the appellant, no just complaint can be founded upon it. Baker v. State, 4 Tex. App. 229; Lubbock v. State, 66 Tex. Cr. R. 309,147 S. W. 258; Branch’s Ann. P. C. p. 205, § 363, and cases cited. If, however, the argument of appellant’s counsel was couched in proper terms and confined to the evidence adduced on the trial, the state’s counsel would not be justified in detailing facts relevant to the e¿se not in evidence in making his response. It appears from the record that the letter written by the appellant dated the 22d of November, 1914, and quoted in the bill, was introduced in evidence by the state, as were the numerous other letters from the appellant and from Cassie Dunn in evidence. None of them, however, were in specific response to the letter from appellant quoted, and none of them informing appellant that the witness had given birth to a child. In stating that none of the letters in evidence answered the one from appellant quoted, or told the appellant of the birth of the child, counsel for the appellant appears to have been within the record. On the former trial of the case a purported copy of the supposed letter from Oassie Dunn was proved by her and introduced in evidence. The receipt of it on that trial was denied by appellant. On the trial from which this appeal is prosecuted there is disclosed neither by the bill of exceptions nor statement of facts any evidence with reference to the supposed letter or copy thereof. There is- a statement in Oassie Dunn’s testimony that she identifies a paper as a copy of a letter which she wrote appellant, but the paper is not described or its contents) given, nor was it introduced in evidence, nor offered in evidence so far as the record discloses. This is the only suggestion that we find in the entire record of any reference to the copy of any letter. It is manifest, therefore, that there is an entire absence of evidence that the witness Oassie Dunn wrote or sent; or that appellant received the supposed letter mentioned in the bill of exceptions. The evidence in the case as disclosed by the record stands as though there had never been a claim that such a letter was or had been in existence. These being the circumstances, we fail to discern a foothold for the contention that appellant’s counsel, by reciting and commenting upon the facts that were proved, invited the state to discuss facts which were not in evidence.

If the argument of the state’s counsel was, as suggested by the court, a legitimate inference or deduction from the evidence, the complaint of it is withouti foundation. In evidence, as above stated, were numerous letters from the appellant and the witness, none of them containing a statement that she had given birth to a child, or was about to do so, and, as before stated, there was an absence of suggestion of the existence of the supposed letter quoted in the bill. Do these facts justify an inference or deduction that the witness wrote and appellant received the supposed letter? If the inquiry in the letter from appellant justifies an inference! or deduction that the witness replied to it, and that appellant received the reply, does it follow that the reply was within the terms quoted in the bill? We think these queries must be answered in the negative. Assuming them to be answered in the affirmative, the argument still bears the color of suggesting the further inference that appellant had received and suppressed the letter, and that by this act deprived the state of the use of legitimate evidence. The evidence, however, was illegitimate under the rulings of this court in this case on the former hearing. 182 S. W. 479. Being illegitimate and inadmissible, its absence could not lawfully be used in argument as evidence of appellant’s guilt. Millner v. State, 72 Tex. Cr. R. 45, 162 S. W. 355; Landers v. State, 63 S. W. 557.

The jury doubtless believed from the argument, and not from the evidence adduced on the trial, that the witness Oassie Dunn had claimed to have written appellant a letter of the tenor of that quoted in the supposition; that the district attorney had before him a copy of this purported letter; that, producing other letters in the correspondence between himself and Oassie Dunn, appellant had withheld andl suppressed the one in question; and that but for this suppression it would be available to the state as evidence bearing upon appellant’s guilt. That these new and, damaging facts camei to the knowledge; of the jury by way of innuendo, and not by direct statement, does not neutralize their sting. However clothed, they bring to the jury facts not proved, evidence not admissible, which, entering into the verdict, destroys it. Bullington v. State, 180 S. W. 681; Vick v. State, 71 Tex. Cr. R. 62,159 S. W. 50; Faulkner v. State, 189 S. W. 1079; Moran v. Baldi, 71 N. H. 490, 53 Atl. 307; Rudd v. Rounds, 64 Vt. 432, 25 Atl. 439. Nor does it allow the state by argument to give to the jury damaging evidence not proved on the trial. Branch’s Ann. P. C. p. 205; Stephens v. State, 20 Tex. App. 255; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Rodriguez v. State, 58 Tex. Cr. R. 275, 125 S. W. 403; Battles v. State, 53 Tex. Cr. R. 202, 109 S. W. 195; Hatch v. State, 8 Tex. App. 420, 34 Am. Rep. 751; 38 Cyc. 1494-1496, subdiv. 14; Railway v. Harrington, 44 Tex. Civ. App. 386, 98 S. W. 653.

In Harris v. State, 72 Tex. Cr. R. 120, 161 S. W. 125, after certain letters had been excluded in developing.the evidence, the state’s attorney said, “If we had been allowed to introduce these letters in evidence, we would have shown his guilt,” and this was held error so prejudicial that it could not have been cured by withdrawal by special charge.

The objections to the correspondence between the appellant and the witness Oassie Dunn which was admitted in evidence were, we think, not well taken. This correspondence consisted of a number of letters written by Oassie Dunn to appellant and letters written for the appellant by the sister of Oassie Dunn. They were not used to prove any recital of facts, but to show the intimate relation of the parties, and contained no statement of fact having an important bearing upon the case. There was evidence in the case to the effect that the denial by Oassie Dunn of intercourse with appellant on previous trials was influenced by solicitation of the appellant, and in view of this testimony and some other of a similar nature we regard the letters showing the relation of the parties were not subject to the objections. Some of the letters coming from appellant were not signed by him, and it appears in dictating them he dictated the substance rather than the details. The fact of intercourse was a controverted one, and we think the developments such as to render the evidence of a series of acts of intercourse admissible. Bradshaw v. State, 198 S. W. 942, recently decided.

Because we think there was prejudicial error in permitting and refusing to withdraw the statement made by the state’s attorney in his argument, the judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). The second sentence in Judge MORROW’S opinion herein is: “The act of intercourse was sharply controverted.” In this I think he is mistaken. On the contrary, the evidence, both positive and circumstantial, establishes the intercourse by appellant with his niece, without any shadow of doubt. He and no other for Mm denied it. He did not testify at all. He merely pleaded “not guilty.” Three juries of 12 fair and impartial men each time have three times found him guilty “beyond a reasonable doubt.” An able, fair, experienced, and upright judge has so held three times. There can be no doubt of his guilt in fact or in law.

The letter by appellant to Oassie Dunn, or copy of it, as proven upon the first trial, and copied in the opinion on the first appeal (182 S. W. 479), was clearly admissible, as at first unanimously held in the original opinion on that appeal, and as further demonstrated by authority and reason in my dissenting opinion on that appeal (182 S. W. 485 et seq.). Doubtless in deference to the majority opinion finally on that appeal, that letter was not offered in evidence on this third trial. But, even if it was not, the argument of the state’s attorney in supposing such a letter does not present reversible error.

It was in direct response to, and invited by, appellant’s attorney’s argument and taunt of the state’s attorney, as shown by the bill as given by Judge MORROW in his opinion herein, and the state’s attorney could well suppose, and so argue to the jury, that she wrote such a letter to him.

Justice, though long delayed, has been meted out to appellant herein, and this judgment should be affirmed, not reversed. 
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