The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
— Complaint of the court’s refusal of special instructions relating to remarks of State’s counsel is made in many bills of exceptions, each of which is sufficient to show that the remarks were in fact made and that they were made the subject of objection and exception. Intimation "to the contrary in the original opinion is withdrawn. In stating the facts on which the demand for special charges was based, the bills are meagre. In the absence of some information in the bills of exceptions showing the connection of the remarks of which complaint is made with the surrounding circumstances, the presumption in favor of the correctness of the court’s ruling will prevail against the bills. See Gonzales v. State, 88 Tex. Cr. R. 248 ; Greenwood v. State, 99 Tex. Cr. R. 160 ; Moore v. State, 107 Tex. Cr. R. 288 . We have, however, considered the bills on their merits.
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The discussion of the bills of exceptions of which treatment is made in detail ip, the original opinion will not receive further attention in this opinion.
By special charges given at the request of the appellant, the jury was instructed to disregard each of the following remarks of State’s counsel:
“They just had him testify to this self-defense so the Court would have ,to charge on it. Judge Taylor knows it that there is no self-defense in this case.”
“Gentlemen, you are charged not to consider the argument of the private prosecutor, J. V. Allred, wherein he said the special charge that was given was the defendant’s charge.”
“Why didn’t they put Virgil on the stand? I know all right but am not privileged to tell you.”
“Thirteen years ago the defendant had to give up his wife and baby because he could not live with his wife.”
“The defendant was kept in jail after he had been refused bond, while we were trying to find the facts of this case.”
The remarks to which the special charges refused were addressed are as follows:
“Gentlemen of the Jury, this' little girl was enriched by thousands or hundreds of dollars, by collecting the insurance on her dead husband.”
“He didn’t tell you about the word for word conversation that Clarence Good — no Judge Taylor, the defendant’s dollars are jingling in your pockets to create sympathy, you have for the father and mother of the dead boy.”
“As I heard Mr. Clarence Good unfold this story of bloody murder — and that the counsel for the defense with his change jingling in their pockets to get a Young County jury to turn him loose on the country to kill somebody else tomorrow.”
“Judge Taylor, you have a lot of sympathy for this boy’s father and mother. Your sympathy is where the dollar is, on the side of the defendant that is jingling now in your pockets.”
“Mr. Clanahan, weren’t you surprised it wasn’t a hip pocket movement as usual in self-defense cases instead of hitting him with a piece of cloth? Its the old story overworked, self-defense.”
“Those bloody facts and that bloody enterprise over there that day with blood dripping from his fingers and the blood of his fellow man on his hands, he asks mercy at your hands.”
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“Aren’t you getting tired of this tommy rot of self-defense with murder stalking about the country every day.”
Bonnie Miles, wife of the deceased and daughter of the appellant, (the little girl to which reference is made in one of the instructions) was a witness for the appellant and gave damaging testimony against the State. She was the beneficiary in an insurance policy upon the life of the deceased, which policy was collected soon after the death of the deceased and the proceeds, at least in part, were in possession of the witness at the time of the trial.
Taking note of the testimony of the witness, Clarence Goode, and of the appellant’s own testimony, it cannot be justly said that there was no basis in evidence for the remarks of counsel referring to the story of Goode and using the figure of speech touching the “dripping blood.” It would seem to treat the intelligence and judgment of the jury but lightly to attribute the verdict to the remarks mentioned rather than to the subject of the remarks as contained in the testimony to which reference is made above. In that, connection, it may be said that the evidence on the issue of self-defense, even as it comes from the lips of the accused, was doubtless regarded as far more persuasive against that contention than the argument to which reference is made.
The reference to the influence upon .counsel for the defendant upon the trial of the money he had received for his fee, while good taste would have suggested its omission, it' is conceived that it rendered the argument either more ornate or forceful. Appellant’s counsel was not his witness; nor was it discrediting nor unusual that skilled and experienced as was counsel for the accused, he was to be paid for his services in representing his client.
The immediate occurrences of the homicide, as. detailed by the witness Goode, are in substance as follows: Oscar Miles was sitting in a tailor shop at work upon a garment when the appellant entered. Miles' arose and said, “Good morning.” Appellant said: “Where is Deacon ?” Miles replied, “He’s stepped out.” Deacon was a boy, an employee of the tailor shop and son of the witness Goode. The witness said, “Here I am, Mr. Gatlin.” Miles said, “Here’s his father; don’t you know him?” Gatlin said, “Yes, sir; I know him.” Miles held out his hand to Gatlin, who said, “You know what you’ve done,” and fired into the body of Miles. Miles was unarmed and had nothing in his hand. He said nothing and made no motion before the first shot was fired other than to extend his hand of greetings. When the first shot was fired Miles went right down and crawled under the table. “His legs showed here and
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his head on this side, going under the table.” While in that position, Gatlin stepped up one step and shot. He shot under the table four times. He shot Miles under the table. Miles had nothing in his hand as he approached Mr. Gatlin. He was in his shirt sleeves.
Upon the body of the deceased there were three wounds in the back and one in the front. That in the front entered near the left nipple. Those in the back entered near the spinal column.
From the testimony of the appellant the following is quoted:
“When I fired the first shot Mr. Miles was about as far from me as you gentlemen are right there; as well as I could remember, some 8 or 10 or 12 feet. As to whether there had been anything said between us, by either myself or Mrs. Miles, except when he was coming towards me, and what I said to him, I says, ‘Hold on there,’ and pointed my finger. I said, ‘You know what you’ve done and said,’ and he didn’t any more halt or wait until he started to raise his hand up, — when he did I shot. As to whether when I pointed my finger at him and said, ‘Hold on there,’ he stopped, he had kinda halted and raised his hand. I had the gun in my right hand. As to when I took that gun out with reference to the time I shot, it was just as he halted; it looked like he raised that hand, then I took out my gun and shot immediately as I raised it. I shot six times in all. After the first shot Mr. Miles fell just as completely back as a man could fall; he couldn’t have fell any straighter back if you had taken a board and pushed him over; he fell over and rolled there right under the counter, and was reaching or grabbing with his hands. He rolled under this counter or table or something like that. I continued to shoot. I shot two or three times before he rolled under the table, once before he rolled completely under the table. I shot a couple of times after he rolled completely under the table, I think. At the time I fired this first shot and all the rest of them, I believed I was in danger at the hands of Mr. Miles of losing my life or inflicting serious bodily injury to me.”
According to the witness Goode, the deceased was working on a coat when the appellant came in. After he was killed, the scissors and a ripping knife were on the chair with the coat where deceased placed them before he arose to greet the appellant. There was but one pair of scissors or shears in the building. Miles had nothing in his hand, and at the time he was shot his hand was by his side.
It is the duty of this court, and the due and proper administration of justice demands that not the words alone shall control but in estimating the argument of which there is complaint upon appeal
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the nature of the offense, the evidence adduced and the verdict rendered are essential elements. It has often been stated, as it was in Vineyard’s case, 96 Tex. Cr. R. 404 , that:
“We think the only safe rule to be that this court should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful and prejudicial, or where a mandatory provision of the statute is violated, or some new and harmful fact injected into the case. Stanchel v. State, 89 Tex. Crim. Rep. 358, 231 S. W. Rep. 120 ; Henderson v. State, 76 Tex. Cr. R. 66 , 172 S. W. Rep. 793 ; Bowlin v. State, 93 Tex. Crim. Rep. 452.”
Tested by the principle stated abové and announced in various precedents, the court feels justified in stating that it finds nothing in the remarks of counsel which were withdrawn of a nature so harmful that the instructions from the court mentioned would preclude the thought of possible injury to the accused.
Touching the remarks embraced in the special charges that were not given to the jury, as the matter is presented in the several bills of exceptions, the view is entertained that they contain nothing which would warrant this court, upon' the record before it, in annulling the verdict of the jury.
By direct and cogent evidence the verdict of the jury is supported. It is the effect of the jury’s finding that the appellant was guilty of murder with malice aforethought. It was within the discretion of the jury to fix the penalty at death or confinement in the penitentiary for any term of years not less than two. They assessed against him far less than the maximum penalty. In ruling upon the admission and rejection of the evidence, as pointed out in the original opinion, there were no errors committed. In submitting the case to the jury, the charge of the court was comprehensive and liberal to the accused. There is nothing in the record which leads this court to conclude that the verdict of the jury was the result of passion or prejudice engendered by the argument of counsel for the State. On the contrary, the verdict is regarded as reflecting the judgment of the jury in response to the evidence adduced upon the trial, giving full effeect to the mitigating circumstances by which the appellant claims his mind' was affected.
The motion for rehearing is overruled.'
Overruled.