Toone v. State

In his motion for rehearing appellant insists that he had not been properly convicted in Cause No. 1992 in Falls County because of a claimed defect in the indictment. This was one of the former convictions alleged to be a similar offense to that for which he was on trial. We think the original opinion correctly discussed the law and nothing new on this question is raised in the motion.

Appellant strenuously insists that he had a right in the trial of this case to have his attorney tell the jury that the result of their conviction would be life imprisonment and he refers to Chapman v. State, 147 S.W. 580, as authority for this contention. We have given serious consideration to this question and, while the distinction is not easily made, yet, we do believe that we are not overruling or modifying the Chapman opinion in sustaining the ruling of the court in this case.

Counsel did not seek to discuss the law of any issue involved in the case. He only sought to inform them of the result of the law and the only conceivable effect which it might have would be to cause the jury to weigh the evidence more carefully in favor of appellant or perhaps to revolt at the severe penalty of the law and refuse to follow it. It will be presumed that the jury did their duty in considering the evidence before them. The *Page 101 facts amply justify their verdict of guilt. In fact, no other reasonable conclusion could have been reached if they believed the State's evidence. The penalty is fixed by law and not by the jury's verdict. No party has a right to bring before the jury a matter either of law or of fact for the purpose of causing them to rebel against the law and refuse to follow it and, consequently, the second conceivable purpose will not be recognized.

The motion for rehearing is overruled.