The opinion
OPINION ON MOTION FOR REHEARING.
MORRISON, Judge.
After hearing a most forceful presentation of appellant’s defense on motion for rehearing, this court, as now constituted, has again carefully reviewed the statement of facts and briefs ■consisting of 1107 pages and will attempt' to' discuss this case in the order in which the same is presented to us on motion for rehearing.
Appellant groups the following four bills under what he denominates his Proposition One.
Bill of Exception No. 24 complains of a portion of the district attorney’s closing argument wherein he suggested to the jury that their verdict should say to the daughter of deceased that her father kept his promise to her to take care of her. The bill shows that the daughter had testified as to such a promise received from her father immediately after he was shot. Since this promise was legitimately in evidence, we feel that a discussion by the district attorney thereof was proper.
In our original opinion we held that the incident complained of in Bill of Exception No. 5 was of such a character that it could be, and was effectively withdrawn when the trial court instructed the jury not to consider it for any purpose and that the same, therefore, presented no error. With the soundness of this holding, we remain convinced; however, we discuss the matter further in the light of the alleged certification of error by the trial court.
The question propounded by the prosecutor was:
“Dr. White, is there anything abnormal in students going to classes and making their grades as this defendant did at North Texas State Teachers College in the spring semester of 1948?”
Upon objection being made, the state’s counsel stated to the court that they did not have this testimony in the shape to prove it, so they would withdraw the question. The appellant’s counsel pursued the matter further by reserving an exception to the special prosecutor’s statement that “he has it but not in the way to prove it before the jury.” At the request of the defense counsel, the court instructed the jury not to consider the remarks of the counsel about the grades the defendant might have *652 made in the North Texas State Teachers College. Thereupon, appellant’s counsel reserved an exception, notwithstanding the court’s instructions.
The trial court then certified that the only testimony offered bearing on the point was the testimony of one teacher to show that the appellant had made his grades in the particular subject this teacher was teaching at said college and certified further that the state did not offer any evidence to show that appellant made all of his grades in that college.
Continuing his certification, the trial court gives the benefit of his conclusion from the foregoing and therein states that there was placed in the evidence a fact highly important and militating against appellant’s defense of insanity and not supported by evidence and that state’s counsel intensified the error in the remarks to the effect that he did not have the testimony in shape to prove it up. The trial judge further advises that, so believing, he immediately instructed the jury that they must not consider the prosecutor’s statement for any purpose at all and withdrew it from the jury.
As we view this certification, it was that the court considered such statement harmful and that is why he withdrew it from the jury. In addition, we are not bound by any certificate of the court where we have the entire matter complained of before us in the bill. See the more recent cases cited in Texas Digest, Criminal Law, 1111(4).
Bill of Exception No. 22 relates to argument of the district attorney in which he stated that he stood before the jury representing the state “. . . in what I consider to be a cold-blooded murder case.” It will be noted from the bill that nothing in the district attorney’s argument was out of the record other than an expression of opinion by the district attorney as to what he thought of the case he was prosecuting.
The facts here may be distinguished from those in cases which we have found, in that, from the bill itself it is apparent that the statement was made in answer to the defendant’s argument that the case had been built around private prosecution and further in that there was no issue that appellant, without legal provocation, shot deceased. His only defense was that he did so while insane.
With these distinctions in mind, we have a case in which the *653 district attorney stated that, as a representative of the state, he considered the case he was prosecuting to be such as he described.
The cases cited by appellant differ from the case at bar, in that, in each of these there existed an unsworn statement of state’s counsel on a material fact harmful to defendant.
We profess no tolerance of any out-of-the-record argument of a prosecutor, but we do not feel that such has occurred when the prosecutor expresses his opinion of defendant’s guilt from the evidence legally before the jury. By his statement he added nothing to the record in the case.
Bill of Exception No. 19 is presented by appellant, but not discussed. An examination of the bill reveals that the only objection interposed by appellant was: “We take a bill to that argument.” Such an objection raises nothing for review by this court.
Appellant’s fifth point of error is leveled at Paragraph 14 of the court’s charge, which is: “By ‘preponderance of evidence’ as used in this charge is meant the greater weight of credible testimony.” This follows the paragraph in the charge which places the burden of proving the defense of insanity on defendant by a preponderance of the evidence. Appellant states that the question which he presents has not been passed upon in Texas in a criminal case. In his objections to the court’s charge, he complained that its giving was unnecessary. This court feels that, since the term had been used in the preceding paragraph, it was proper to define the same. We hold this paragraph not to be subject to the objections raised.
Appellant, in his Bill of Exception No. 10, insists that reversible error is reflected in the following matter, which was riot discussed upon original disposition.
Eva McGee, a sister of the appellant, upon direct examination by the appellant testified fully and at length to acts and conduct of the appellant beginning in early childhood, upon which she, as a lay witness, expressed the opinion that appellant was insane. Some of those incidents related to appellant’s acts after having been beaten in playing croquet, checkers, and monopoly, in which appellant was depicted as breaking the mallets, stamping the wickets down, and tearing up the checker *654 and monopoly boards,. IJgl&tive to the croquet games, witness testified.;. ......
“I have seen it happen several times when he would get mad and kick all the wickets down . . .”
Further testimony was that she did “not recall that anything had happened to make him mad then,' other than I had beat him in the game.”
As to the monopoly game, witness testified: “A lot 'Of times he would get mad over this game and break up the board and destroy it completely because of little instances like he couldn’t get the certain kind of property he wanted out of it.”
On cross-examination she was asked about six of said incidents specifically and answered that the appellant was mad at the time of the incidents described.
On redirect examination the cross-examination was referred to, and the witness was asked, “At that time, did you think he was mad or insane?” or a question of similar import. The exclusion of the answer to these questions forms the basis for the bill.
It will be noted that the answer to Question #2 is not shown, and, therefore, so far as this question is concerned, the bill is defective, Robinson v. State, 112 Tex. Cr. R. 521 , 16 S.W. 2d 233 . The answers to one, three, four, and six were not responsive to the questions asked and, therefore, reflect no error, Ingram v. State, 113 Tex. Cr. R. 75 , 19 S.W. 2d 41 .
Question #5 first referred to the cross-examination and then asked, “Now, did you mean in making that answer, did you mean to say that you were meaning to convey to the jury the statement that he was mad in the sense of human anger, or that he was mad in the sense of being insane ?” It was answered, “I meant to say that he was insane.”
We must here determine whether error is committed when a witness has testified fully on direct examination, is then cross-examined, and then on redirect is asked again if he meant what he had testified to originally.
This is not a ease, like those cited by appellant, where a witness is allowed to rehabilitate himself on redirect examina *655 tioñ 'by explaining something that had occurred prior to the trial and about which he had been cross-examined.
We know of no rule which authorizes repetition so that the party eliciting such answer may have the last word.
This witness had testified on direct examination, as had many other witnesses, that she considered appellant. insane. She had further testified that he had gotten mad and committed certain acts. We can see no necessity for rehabilitation of the witness. The answer excluded' said no more and no less than what she had testified to on direct examination, Thompson v. State, 104 Tex. Cr. R. 637 , 285 S.W. 826 ,; Texas Digest, Criminal Law, Key 1170 (3) (4).
Appellant’s seventh point again raises the question of the correctness of the court’s charge in which the burden of proof to establish appellant’s insanity was placed upon him. Appellant once more insists that the findings of the military board should have the same legal effect as an adjudication of lunacy by a jury in a Texas court.
Appellant presents a most forceful argument predicated upon the question of jurisdiction of the person of appellant; that is, he says that since the Army had jurisdiction of appellant at the time of the board’s findings that such findings should have the same dignity as the action of the jury in a court which had jurisdiction to try the sanity of a civilian living within the jurisdiction of said court. We cannot agree that jurisdiction alone will supply all the requisites of a valid judgment.
We know not whether appellant was given notice of the hearing of the medical board; we know not whether he had an opportunity to cross-examine witnesses who were heard; we know not the issues for determination by the board, whose rules of procedure were pronouncements of military authorities rather than of legislative origin.
These and others are known qualities in a hearing before a jury in lunacy in our county court or a jury in the district court where there is a hearing on the question of insanity.
We have no authority, either statutory or otherwise, authorizing us to give- to the findings of such board the same effect as a final judgment of a court of competent jurisdiction.
*656 Finding no reversible error, appellant’s motion for hearing is overruled.