Heidle v. State , 129 Tex. Crim. 201 ( 1935 )

Appellant predicates a motion for rehearing on the matters complained of in bills numbers one and ten.

Bill number one shows that the father of deceased testified that he did not see the face of deceased after it was washed, "that it was more than he could stand." It is appellant's position that the statement quoted enlisted the sympathy of the jury, and in connection with the argument of the district attorney as reflected in bill number ten, calls for a reversal. The court qualified bill number one by saying that the father of deceased was an eye-witness to the difficulty, and described the wounds upon deceased and then volunteered the statement complained of. No request seems to have been made of the court to instruct the jury to disregard the statement so volunteered. The wounds upon the body and face of deceased were described in detail to the jury by other witnesses; and under the facts the conclusion scarcely appears reasonable that the statement complained of was fraught with the serious consequences now urged.

Bill number ten reflects that in his closing argument the district attorney said to the jury, "* * * if you acquit this defendant you will be saying to this old man (referring to the father of deceased) that his son should have been killed and his intestines cut out upon the ground." The objections urged to the argument were that it was improper, prejudicial and was calculated to influence the minds of the jury against the defendant. The evidence shows that as many as ten knife wounds were inflicted on deceased, several of them quite serious, and one in the abdomen from which entrails protruded. In support of his contention that the argument in question taken in connection with the matter reflected by bill number one should result in a reversal appellant refers us to Brookreson v. State, 88 Tex.Crim. Rep., 225 S.W. 375; Emery v. State, 95 Tex.Crim. Rep., 254 S.W. 957; Black v. State,79 Tex. Crim. 628, 187 S.W. 332; Parker v. State,43 Tex. Crim. 526, 67 S.W. 121; Conn v. State, 11 Texas App., 390; Lasater v. State, 88 Tex.Crim. Rep., 227 S.W. 949; Thompson v. State, 26 S.W. 987. All of said cases have been examined and we think none of them is controlling under the facts here found. We think the correct rule as to claimed improper arguments may be found in Vineyard v. State,96 Tex. Crim. 401, 257 S.W. 548, in which it was said: "We think the only safe rule to be that this court should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or where a mandatory provisions of the statute is violated, or some new and harmful fact injectedinto the case. Stanchel v. State, 89 Tex.Crim. Rep.,231 S.W. 120; Henderson v. State, 76 Tex.Crim. Rep.,172 S.W. 793; Bowlin v. State, (No. 6418) 93 Tex. Crim. 452,248 S.W. 396." (Italics ours). In the opinion on rehearing in Vineyard's case the following language occurs. "In deciding whether the argument is of a nature demanding a reversal of the judgment, the language used is not alone the test. The evidence and the verdict must be considered. Hart v. State, 57 Tex.Crim. Rep., 121 S.W. 508; Ex parte Davis, 48 Tex.Crim. Rep., 89 S.W. 978, 122 Am. St. Rep., 775; Borrer v. State, 83 Tex.Crim. Rep., 204 S.W. 1003." The principles approved in Vineyard's case were re-affirmed in Threadgill v. State, 124 Tex.Crim. Rep.,61 S.W.2d 821.

Giving effect to what we believe to be the correct rule we are of opinion that we would be unauthorized to reach the conclusion that the argument complained of would justify a reversal.

The motion for rehearing is overruled.

Overruled.