Shelton v. State

367 S.W.2d 867, 1963 Tex. Crim. App. LEXIS 1164

Opinions

MORRISON, Judge.

The offense is murder; the punishment, 7 years.

Our two prior opinions are withdrawn, and the following is substituted in lieu thereof. In view of our disposition of the case, the facts will not be set forth. We overrule appellant’s contention that the charge on accident as given by the court was erroneous and point out that where, as in this case, the defense is accident, there is no occasion to charge on negligent homicide. Beasley v. State, Tex.Cr.App., 346 S.W.2d 123, and Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742.

Our attention has now been directed to two portions of the argument of the prosecutor contained in the statement of facts. At one juncture, the prosecutor said, “He (appellant’s son) knew his father well enough to know he had murdered this woman.”

The objection that such constituted un-sworn testimony of the prosecutor was overruled.

Thereafter, the prosecutor said, “He (appellant’s son) knew what he (appellant) was capable of doing. He knew he was a dangerous and violent person.”

The same objection was made and overruled.

In such ruling, the court was clearly in error, and such error requires a reversal of this conviction.

The second motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.