Kirby v. State ( 1924 )

After the end of the closing argument of counsel for the state appellant's counsel presented to the court a special charge. An exception was reserved to its refusal. The bill complaining of it states that the counsel for the state in said argument used this language:

"Gentlemen: You can not acquit this defendant unless you find that he acted as a reasonable man when he committed the homicide." The court in qualifying the bill states that he did not recall the making of such argument and that no exception was taken during the closing argument to any part of it nor was the attention of the court called to the use of the words embraced in the charge. The bill thus qualified was accepted by appellant and must by this court be taken as stating facts. The court is therefore left without any certificate that the argument was made and it is made clear that if it was made no opportunity was given at the time to either the court or counsel for the state to obviate its effect upon the jury if in fact the argument was improper. The case is not analogous to Williams v. State, 84 S.W. Rep., 231. In that case objection to the argument was made at the time of its delivery. In the present case the converse is true. An objection to argument should be made during its progress, for the reason that it may be then possible to withdraw or correct it and obviate any prejudicial effect. Weige v. State,81 Tex. Crim. 472; Harris v. State, 93 Tex.Crim. Rep.. As said in the original opinion however the bill of exception in the present case does not show that if the argument was made that it was not a proper one.

Other questions presented in the motion for rehearing are but reiterations of points made and reviewed in the original opinion. Our reconsideration of the matter fails to lead us to the conclusion that there was error committed or that the trial accorded appellant was other than a fair one. The evidence warrants the verdict rendered.

The motion is overruled.

Overruled.