*1 FOR REHEARING. ON MOTION Judge. affirmance of Presiding MORROW, Since the ap filing rehearing, the motion for the case and 30, 1935, September a written pellant filed in this court motion, affidavit, requesting of her the withdrawal verified rehearing. motion for granted request and the motion
withdrawn.
Rehearing Withdrawn.
Eddie Heidle v. The State.
No. 17431. Delivered March 1935. Reinstated 1935. Appeal June 12, Rehearing Denied 1935. October 16, *2 statеs the case. Ashworth, Kaufman, Travis, B. of Roland of Chas. Canton, appellant. for Davidson, Attorney, Austin, for the
Lloyd State’s of W. State. Judge. LATTIMORE, murder; punishment, for Conviction pеnitentiary. years in fifteen present provided by Criminal
It Art. 815 of our Code of is felony punishment convicted of a whose Procedure one less, years may privilege of or have the is affixed at fifteen making recognizance appropriate appeal. The an or bond for upon appeal aрpears Art. P. in C. C. form Examining such bond herein, it in form bond we observe that is bond, ordinary appearance binding appellant an and his sureties depart appears to see that he and not before the district court the fact therefrom. There is no in bond of statement said felony as re- been a P., is has convicted of such quired by lays down terms of Art. C.C. which appropriate necessary that an bond is case. such form jurisdiction. may this court entertain order be made appеal is dismissed. appearing, bond not Such APPEAL. TO REINSTATE ON MOTION Judge. LATTIMORE, at a former case was dismissed This appeal bond. The defect day of a defective of this term becausе judgment aside, remedied; set been of dismissal has re-instated, appeal and the now before us on case is its merits. appellant cut the fact deceased
There is no denial of question, badly serious on the and no issue occasion caused the death made the fact that wounds led to and *3 abdomen, frоm were in the at least of deceased. Two wounds protruded. penetrated one of which the Another intestines lungs, breathing was the and testified that deceаsed witnesses through neck; exposed this hole. the vertebrae Another the bone, through another cut the one arm the and were to others jaws and into the Thе had a blade said to used mouth. knife length very sharp. two and The be one-half inches and seem facts sufficient. exception,
We find nine bills of each of which has been any examined but in perceive none of which do error. All we qualified. Exceptions qualifications of the bills are to such signatures only attorneys. are noted over appellant’s the of Such notation is not sufficient. See Kerr v. 17486, opinion No. Cause April 17, (128 handed down Rep., 612).
A brief complains referencе is made to each bill. Bill testimony deceased, effect, of the father of that he did not at up. look the face of his son after he was washed He was present at difficulty, the and had described some of the wounds. question Bill 2 witness, sets out a asked a but fails to that show any given. question answer The was not was of form to be injuriоus. brings objection Bill 3 testimony forward to the experienced of an apparently competent and doctor who was at difficulty, called once аfter wounds, the who examined the nothing and testified that he could do for man. The ob- jection say was that this doctor was allowed to that the wounds opinion. caused death testimony in his The was admissible. complains 4Bill that the same testify doctor allowed was to that the knife shown him could have inflicted the wounds found by upon him body. оbjection. We see no valid There is appellant inflict said that did but in the case contention
no being no There the doctor. knife shown with wounds appellаnt inflicted the the fact over contention serious deceased, par see no we the death of caused wounds undertaker, letting objection ground to ticular —who compe experience and felt many years a man of he was opinion the wounds in his testify, tent to so —state The fatal encounter his deаth. body caused of deceased following difficulty had immediately a from and resulted man The man than himself. much smaller appellant a with permitted previous appellant trouble had the whom with it, appellant concerning and also that testify to the facts following immediately this appears him. then cut affray ought appellant told him he upbraided deceased cutting man like a small of himself for to be ashamed upon state just At once this had his trouble with. one he had began difficulty and deceased. ment between exception, all of no need to discuss the other bills of We see which carefully in none of which have been еxamined and any do we find error. judgment will be affirmed.
Affirmed. REHEARING. ON MOTION FOR HAWKINS, Judge. Appellant predicates motion *4 rehearing complained numbers one of in bills on the matters and ten.
Bill testified number one the father of deceased shows that washed, that he did it was not see the face of deceased after appellant’s “that it wаs more than he could stand.” is position sympathy quoted that the the statement enlisted argument jury, the and in of the district connection with the attorney ten, as reflected in calls for a reversal. bill number qualified saying The court by the father bill number one eye-witness difficulty, of deceased was an to the and described upon the wоunds deceased and then volunteered the statement complained request the of. No made of seems to have been court jury disregard to instruct so thе the to statement volunteered. upon body The wounds face of deceased the and witnesses; were described and jury by in detail to the other under the scаrcely appears facts the conclusion reasonable the complained statement fraught con- the serious with sequences urged. now
205 argument сlosing the in his reflects that ten Bill number “* * * acquit you this jury, if to the attorney said district (referring to saying this old man to you will be defendant been killed deceased) should have his son thе father of objections ground.” The upon out the cut his intestines and prejudicial improper, argument it was urged to were that the against jury the the minds of to influencе and was calculated many ten as as shows that The evidence the defendant. quite deceased, of them on several knife inflicted wounds were pro sеrious, entrails in the abdomen from which and one argument in the support of contention that truded. In his question the reflected bill in with matter taken connection us to rеversal refers number one result should W., 150, State, Rep., 225 Brookreson 375; 88 Texas Crim. S. v. 336, W., State, Rep., 254 Emery 95 Texas Crim. S. v. 332; W., 957; State, Rep., 628, 187 S. Black Crim. v. 79 Texas 121; State, Rep., 526, W., Parker v. 43 67 S. Texas Crim. 390; Stаte, State, App., 88 Conn v. 11 Lasater v. Texas Texas State, W., Rep., W., 949; Thompson 26 452, Crim. 227 v. S. S. 987. All of cases examined and we think none have been controlling of them is found. think under the facts here We arguments improper may to correct rule as claimed be 401, W., Vineyard State, Rep., found in v. 96 Texas Crim. 257 S. 548, only it think safe which was said: “We rule be argumеnt this court should not hold an to be reversible language error plained it unless is in extreme cases where the com manifestly harmful, improper, prejudicial, of is mandatory provisions violated, or where a of the or statute injected some new and into the Stanchel case. harmful fact State, 120; Rep., W., v. 89 Texas Crim. 231 Hеnderson S. State, 793; Rep., W., v. 76 Texas v. Crim. Bowlin S. State, (No. Rep., 452, W., 6418) 93 Texas 248 S. 396.” Crim. (Italics Vineyard’s ours). In the case following language deciding “In whether occurs. argument demanding judgment, of a nature a reversal of language not used is the test. The evidence and alone verdict be v. 57 Texas Crim. must considered. Hart Rep., 21, W., 508; Davis, parte S. Ex *5 Rep., 644, Stаte, W., 978, 775; Rep., 89 122 Am. Borrer v. S. St. 199, W., principles 83 approved Rep., Texas Crim. 1003.” S. Vineyard’s Threadgill v. case were re-affirmed 287, Rep., (2d) 821. 61 S. W. Giving we effect to what believe to сorrect rule we be the are of that we be unauthorized reach would argument conclusion complained justify of would reversal.
The motion for is overruled.
Overruled. Ralph Johns v. The State. No. 17576. Delivered 1935. May 22, Rehearing Denied 1935. June Rehearing
Second Motion for Denied October 1935.