Franklin v. State , 45 Tex. Crim. 470 ( 1903 )

HENDERSON, Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

Appellant has presented a lengthy bill of exceptions, which recites the testimony of a number of witnesses. We gather from the bill that he only objects, however, to the failure of the court to limit the evidence of Mobley as to what Anderson McKinney told him that Tobe Davis had said to him (McKinney), to the issue of the credibility of said Anderson McKinney. Wé understand the court gave a charge on this subject substantially as requested by appellant, and it was not necessary, therefore, to give said requested charge. We do not understand that appellant excepted at the time to the failure of the court to exclude the evidence of Mobley, as the bill shows that defendant’s attorney did not except at the time to the failure of the court but relied upon the request to exclude said evidence. When this request was made does not appear. The bill is not in such shape as to require a review by this court.

Appellant excepted to certain remarks alleged to have been made by the district attorney in his closing argument. These appear to have been in response to an argument by defendant’s counsel. The court, it seems from the bill, admonished the jury not to regard the argument of the State’s counsel, and no requested charge was submitted on this subject. As presented it shows no error.

Appellant also reserved an exception to the' discussion of the facts by the judge overruling his motion for new trial. While this was improper it affords no grounds for the reversal of this case.

In motion for new trial appellant excepts to several portions of the court’s charge; but it does not occur to us that there is any error in the charge. Among others, he excepted to the charge on principals. In this connection, he specially excepted to that portion of .the charge which instructed the jury, that any person who advises or agrees to the commission of an offense, and is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act. This is in accordance with the statute on the subject, and it occurs to-us was pertinent to the facts of this case.

Appellant contends that the evidence is not sufficient to sustain the verdict. We have examined the record carefully, and in our opinion the evidence is sufficient. There being no error in the record, the judgment is affirmed.

Affirmed.