The opinion
ON MOTION FOR REHEARING.
WOODLEY, Judge.
In his Bill of Exceptions No. 2, appellant complains of the closing argument of the district attorney wherein he stated that the defendant had not filed an application for suspended sentence, and that “it was either nothing or penitentiary” for the defendant.
Such bill is insufficient to reflect error, if such there be, for the reason that it fails to show that such argument was not invited by or made in reply to argument of defense counsel. See France v. State, 148 Tex. Cr. R. 341 , 187 S. W. 2d 80 ; Carpenter v. State, 149 Tex. Cr. R. 144 , 192 S. W. 2d 268 ; Stovall v. State, 153 Tex. Cr. R. 495 , 221 S. W. 2d 278 .
Bill of Exceptions No. 7 complains of the following answer of a witness as not responsive to the question propounded: “We could tell there was something wrong with the men, or it looked like it was.”
There are no surrounding facts shown in the bill. It is not shown who “the men” referred to in the answer were, nor in what way appellant claims to have been injured by the testimony. Therefore no error is shown. See Branch’s Ann. P.C., p. 131, Sec. 207.
Bill of Exception No. 8 relates to the refusal of the court to give the following requested charge:
*624 “Gentlemen of the jury you are charged as part of the law in this case that you cannot find the defendant guilty as charged in the indictment unless you find and believe from the evidence beyond a reasonable doubt that at the time of the collision in question, if you have found there to have been a collision, the defendant knew that the deceased was standing in front of a parked pickup truck or that the defendant, by the exercise of reasonable care could have known of the deceased’s position.”
We are convinced that there was no error in the failure to give such charge.
In prosecutions for murder by accident or mistake under the provisions of Art. 802(c), the state’s case is complete upon proof beyond a reasonable doubt that the accused drove a motor vehicle upon a public highway while intoxicated, in violation of the provisions of Art. 802, Vernon’s Ann. P.C., and while engaged in such illegal act, by accident or mistake caused the death of another, the accident not being one entirely disconnected from and disassociated with his intoxication.
“One who is so careless of the rights of others as to use a dangerous instrumentality while intoxicated by drink must pay the penalty.” Brewer v. State, 140 Tex. Cr. R. 9 , 143 S. W. 2d 599 .
The indictment is very similar, if not identical, in regard to the averment as to the highway being in the named county, with the indictment held sufficient in that regard in Johnson v. State, 149 Tex. Cr. R. 380 , 194 S. W. 2d 771 .
All other contentions have been fully considered and discussed, and we believe properly disposed of.
Appellant’s motion for rehearing is therefore overruled.
Opinion approved by the court.