Alexander v. State

133 S.W. 436, 61 Tex. Crim. 31, 1910 Tex. Crim. App. LEXIS 585

Opinions

DAVIDSON, Presiding Judge.

—Appellant was awarded the death penalty for the murder of Mary Sanders.

1. The following language was used by the assistant county attorney during his opening remarks in his argument to the jury; “Was he (meaning the defendant) being kind and affectionate to Mary (meaning the deceased) when he beat her up and knocked her down at the flying jenny the Saturday night before the murder?” Objection was urged to these remarks because there was no evidence that defendant .either knocked deceased down or hit her at the flying jenny on the Saturday night prior to the murder, or otherwise mistreated her at that time. The court approves the bill as follows: “The above is approved with the understanding that the judge immediately instructed the jury not to consider the above remarks.” The ground of objection is not verified as a fact and can not be treated as a statement of the fact, nor does the approval of the bill by the court in which the above exception is noted verify the ground of objection as a fact. It is simply a ground of objection without verification. This in connection with the instruction of the court to the jury to disregard the argument relieves the matter of any reason for reversal.

2. Another bill recites the following: The county attorney asked the following question of the witness Rady Alexander: “When you testified that he loved Mary, upon his treatment of her, are you referring to the time near the T. M. C. A. building there' one night he tried to cut her with a knife and was prevented from doing so by a negro by the name of Jordan?” To this question appellant objected, whereupon the court instructed the jury that they should not consider the question nor any answer based upon it. To the asking of the question appellant excepted in open court because there was no evidence of any such transaction before the court, and the question was asked solely for the purpose of prejudicing the defendant in the eyes of the jury. The bill of exceptions fails to show that there was any answer elicited, and the further fact that the jury were instructed not to consider either the question or any answer that might be given, relieves the record of error in this matter.

3. There is no such complaint of the charge as can be considered. In fact, the only attack made upon the charge is in the following language as the first ground of the motion for new trial, to wit: First, because of errors in the charge of the court. This is too general to require notice. It does not point out any particular portion of the charge of the court that was error, nor assign any reasons why any portion of the charge was erroneous. The other matters relate to questions of fact -that are not verified by bills of exception, except the two bills above mentioned.

4. It is contended the evidence is not sufficient to support the conviction. The court, after a careful review of this testimony, has reached the conclusion that it is sufficient; at least we would not to be justified in reversing the judgment for want of sufficient evidence. We are of opinion that it would serve no practical purpose to review the evidence or to state it either substantially or in detail.

As the record presents itself to this court we are of opinion that the case ought to be affirmed, and it is so ordered.

Affirmed.

McCord, Judge, absent.