Carpenter v. State , 129 Tex. Crim. 397 ( 1935 )

Appellant presents in his motion many of the matters decided by us in our original opinion, with the complaint that we were not correct. He insists that we were wrong in holding that his bills of exception 1 and 2, complaining of the overruling of his challenges for cause to certain jurors, showed no error. The bills are qualified by the statement of the trial judge that after holding the jurors in question qualified, and overruling appellant's challenges for cause, the jurors Keeter and Hulse, stated in appellant's bills of exception to be objectionable jurors forced upon him, — were accepted by appellant, and further that no juror was selected to sit in the trial of this case to whom objection was made by the appellant. The qualification completely overturns appellant's contention, and supports our holding that no error was shown. In addition, we observe that the authorities cited by appellant in support of his contention upon this point, are upon facts entirely dissimilar to those before us, and hence the authorities are not in point.

Appellant renews complaint at our disposition of his bill of exceptions No. 4. Appellant wanted to ask each juror: "If you were on trial for the offense of murder, would you be willing to be tried by a juror who had the same attitude of mind toward you as you now have with reference to this defendant?" We have no hesitation in again affirming that such question was improper, and the court correctly held it so. The case of Plair v. State, 279 S.W. 267, cited by appellant, has no application.

Appellant also says we erred in disposing of his bill of exceptions No. 10. The cases cited by appellant in support of his position are cases in which the argument complained of contained the personal opinion of the attorney making the argument as to some fact pertinent to the guilt of the accused of the offense charged. No such opinion is expressed in the argument set out in bill of exceptions 10, and no hurtful fact was stated in the argument pertaining to the particular case. It is clear that the prosecuting attorney was merely expressing his opinion about the law and what it ought to allow and forbid. The jury could not have misunderstood same. The matter was promptly suppressed, and it seems incapable of any injury. The authorities cited by appellant, to-wit: McDuff v. State,281 S.W. 1073; Masten v. State, 271 S.W. 922; Stanchel v. State, 231 S.W. 120; Atkeison v. State, 273 S.W. 596, and Vargas v. State, 79 S.W.2d 860, are in no sense similar in principle or upon facts to the case before us.

The case of Maynard v. State, 293 S.W. 1104, is in no way authority supporting appellant's contention that we erred in our disposition of his bill of exceptions No. 14. As stated in our original opinion, the verdict of the jury shows their disagreement with counsel for the State, and is such verdict as clearly evidences that they were not influenced by his argument.

We reaffirm what we said regarding the point made in appellant's bill of exceptions No. 6. Nothing in the record suggests that the remark of the State's attorney influenced the verdict of the jury. The penalty fixed by them is in no way excessive.

We are not impressed by appellant's complaint that we erred in not reversing this case because in the argument the State's attorney referred to deceased as a good man. We have examined appellant's bills of exception 15, 19, 11, 12, 13 and 20, and note that in said bills it is stated that at the close of the argument of the State's attorney appellant took exceptions to certain parts thereof. We have an unbroken line of authorities in this State holding that the attorney for the appellant can not wait until the close of the argument to make his objection and take his exception to the argument which he deems wrong. The objection should be made and the exception taken when the particular argument is uttered in the presence of the jury. Otherwise the matter would have passed out of the memory of the attorney making the argument, and possibly not be remembered by the court hearing the argument, or not hearing it because he was occupied in some other matter. Reference to Smith v. State, 104 Tex.Crim. Rep.; Sears v. State, 106 Tex. Crim. 219; Simmons v. State, 248 S.W. 392; Harris v. State,249 S.W. 485; Salinas v. State, 18 S.W.2d 663; Thompson v. State, 34 S.W.2d 250, and Crowley v. State,35 S.W.2d 437, discloses the authorities holding that the bills of exception in form as they appear in this record are not sufficient.

We have again carefully gone over appellant's complaint of the refusal of his new trial based upon newly discovered evidence, and are still of opinion that the testimony contained in the affidavit offered by appellant was so combated by the testimony offered by the State, when the matter was heard before the trial court, as to bring the court's action, in refusing a new trial, entirely within his discretion.

The motion for rehearing will be overruled.

Overruled.