The appellant, Lafe Gibson, was tried at the April term, 1901, of the district court of Graham County, upon an indictment charging him with the murder of one Baeilio Martinez. He was convicted of manslaughter, and sentenced to a term of seven years in the territorial prison. He appeals from the judgment of conviction and from the order denying his motion for a new trial.
It is first urged upon us that the verdict is not supported by the evidence, in this: that the corpus delicti has not been proved. We are convinced that the appellant’s contention in this regard is without merit. It appears from the evidence that on the twenty-third day of October, 1900, at the village of Eden, the appellant and several younger boys were engaged in playing baseball, when the deceased drove up near them with a two-horse wagon, and called for some one to come to where he had stopped his team in the public road. The appellant and two or three others went to the roadside to inquire of Martinez what he desired, whereupon the latter handed to appellant a piece of paper, with a few words indistinctly written upon it. Martinez was a Mexican, but could speak broken English. When the appellant attempted to unfold and'look at the paper, Martinez told him not to do so, and for some cause sought to regain possession of it. The appellant handed him back the paper, and told him to go on. Angry and abusive words passed between the two, when the appellant struck the horses with a willow switch, and started them moving. Martinez quickly stopped the team, jumped down from his wagon, and attempted to pick up a rock lying beside it. The appellant hit him with a ball club as he made for the rock. He struck Martinez on the body, and knocked him to his knees. As the deceased was endeavoring to get to his feet, appellant struck him another blow on the head. There
The remaining assignment of error is based upon the alleged prejudicial remark of counsel for the prosecution in his opening argument to the jury, when, referring to appellant’s personal appearance, he said: “Look at the defendant’s face and see that he is a murderer!” Counsel for the appellant objected to this language at the time, as calculated to prejudice the jury against their client, whereupon the court admonished the offending counsel that his argument must be confined to the evidence in the case, and that such reference to the defendant was improper, and must not be indulged in. The court also promptly instructed the jury not to con
Street, C. J., and Sloan, J., concur.