Briley v. State , 138 Tex. Crim. 249 ( 1939 )

Appellant, in his motion for a rehearing asserts that he is entitled to a reversal on three grounds. The first is on the alleged improper argument of the county attorney. This matter is fully discussed in the original opinion and we see no need of a further discussion. The argument complained of was not of a highly inflammatory and prejudicial nature, and the prompt action of the careful trial judge in sustaining appellant's objection thereto and his instruction to the jury not to consider the same cured the error, if any. Not every improper remark of the prosecuting attorney will require a reversal. It is only where the argument is of such prejudicial nature as was calculated to, and probably did, produce a conviction or enhance the punishment. See Tweedle v. State, 16 S.W. 544,29 Tex. Crim. 586; Davis v. State, 154 S.W. 550; Hardy v. State, 31 Tex Crim. Rep., 289; Howard v. State, 53 Tex. Crim. 378; Hatley v. State, 109 S.W.2d 1063.

He next contends that the evidence is insufficient to justify and sustain his conviction, in that the State failed to show that he did not kill the deceased in self-defense. He contends that Glenn Lavender testified that he saw appellant pick up a stick and run towards the deceased, but did not see appellant strike the deceased, as he was leaving the scene of the difficulty. He contends that this court cannot assume that appellant did not strike in self-defense. To show that such an assumption is unnecessary, we quote from the testimony of Lavender as follows: "After they (referring to E. D. Briley and the deceased) stopped fighting * * I saw Everett Briley come up with a pole, and Mr. Williams was standing there and he broke and run and Everett (the appellant) ran towards those two little lumber piles there off west. Mr. Williams was running from him and Everett had a pole running after him. * * Everett was running toward Mr. Williams and Mr. Williams was running away from Everett Briley."

Mrs. Williams, who was near the scene of the difficulty, and who carried her husband home, put him to bed and summoned the neighbors, testified as follows: "His skull was crushed in right in the back of his head, knocked in like. * * The only wound I found was in the back of his head * * *. I say my husband was hit in the back of the head and his skull crushed in."

She saw no stick or knife anywhere on the ground where he had fallen, and found his pocket knife in his pocket. The doctor testified that the lick which deceased had sustained on the head was sufficient to fracture the base of the skull and produce his death. We think the evidence in this case is such as would lead any unbiased mind to the logical conclusion that appellant voluntarily and without excuse or justification killed the deceased. The State is not required to negative every possible defense. The evidence is certainly sufficient to allow the jury to come to the conclusion of a killing without excuse or justification.

The complaint with reference to the misconduct of the jury is, in our opinion, without merit. The remark made by the juror was but the expression of his conclusion from the testimony before them under the ruling of the court.

Appellant's motion for a rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.