Appellant was convicted of the murder of his seventeen-year-old stepson — the son of his wife, — and his punishment assessed at ninety-nine years in the penitentiary.
These persons and many others were attending a dance. The killing occurred about midnight May 7, 1914. It was a bright, cloudless, moonlight night, with the moon about full. The parties were out in the open a short distance from the house with quite a number of persons
out there in sight and in hearing. The State introduced three eyewitnesses. Appellant introduced no eyewitness except himself. His defense was self-defense. The testimony by the State makes a clear case of murder and disproved appellant's defense. His testimony alone would tend to show self-defense. We see no necessity of reciting the evidence.
Appellant's main contention seems to be the claimed error of the court in overruling his motions for a continuance for the absence of Lum Hardin, which we will first discuss.
In order to properly discuss this question we will state the law and the evidence applicable thereto. In doing this no reflection is intended upon appellant or any of his attorneys. We merely discuss the question and the evidence as developed by the record.
The record herein and of this court show that the justice of the peace at Aquilla, in Hill County, near where the homicide occurred, the next day thereafter, held an examining trial, upon which he denied appellant bail and properly committed him to the custody of the sheriff of the county; that several days thereafter he applied to the district judge for a writ of habeas corpus, which was granted, and upon hearing by the district judge, he, on June 1, 1914, denied bail and likewise properly remanded appellant to the custody of the sheriff. Appellant appealed from this judgment of the district judge to this court, which affirmed the judgment (168 S.W. Rep., 1199), all thereby showing that it was a murder case, in which the death penalty might likely be inflicted, of which, of course, appellant and all of his attorneys had knowledge. Appellant has been confined in jail at Hillsboro, the county seat of Hill County, continuously from the time the justice of the peace first denied him bail. The grand jury of Hill County duly indicted him September 17, 1914, at the term of court for said county, which began on the first Monday in September. He was duly served with a copy of the indictment on September 23rd. In due time, as was customary, the judge set the criminal docket. On September 25, the judge set this case for trial for October 19th and ordered a special venire for that date. The special venire must have been for quite a number of veniremen.
Two of appellant's attorneys, Messrs. Morrow Morrow, lived at Hillsboro. Judge Morrow of this firm, however, was at Austin in attendance on the State Senate, of which he was a member, until October 15, 1914; two others, Messrs. Taylor Forrester, at Waco; Mr. Forrester said they relied on Mr. Moore to procure process for witnesses; and the other, Mr. Moore, lived at Aquilla, some sixteen or eighteen miles southwest from Hillsboro, in Hill County, near which the homicide occurred. Appellant at no time personally applied for any process whatever for any witness. The first time that any of appellant's attorneys applied for process was on October 14, 1914, — nineteen days after the case had been set for trial and the special venire ordered, and only four days, exclusive of the day on which the process was issued and the case set for trial, before the case was to be tried.
It is the settled law of this State, both by statute and all the decisions, that an accused is not entitled as a matter of right to a continuance; that the truth of his application therefor, as well as the merits of the ground and its sufficiency, is addressed to the sound discretion of the trial court. It is also statutory, as well as in accordance with the decisions, that before an accused can get a continuance he must affirmatively show that he has used due diligence to procure the attendance of his claimed absent witness.
Judge White says: "Diligence in securing the attendance of a witness is in the highest degree essential; and the continuance should invariably be refused when the want of diligence amounts to pure negligence. Greenwood v. State, 9 Texas Crim. App., 638." (Sec. 600, White's Ann. C.C.P.)
"Continuance is properly refused always where there is a want of diligence. O'Neal v. State, 14 Texas Crim. App., 582; Hart v. State, 14 Texas Crim. App., 657; Childers v. State, 16 Texas Crim. App., 524; Hawkins v. State, 17 Texas Crim. App., 593; Timbrook v. State, 18 Texas Crim. App., 1; Barrett v. State, 18 Texas Crim. App., 64; Bond v. State, 20 Texas Crim. App., 421; Moseley v. State, 25 Texas Crim. App., 515; Stegall v. State,32 Tex. Crim. 100; Underwood v. State, 38 Tex. Crim. 193; Henry v. State, 38 Tex.Crim. Rep.."
This court, in Skipworth v. State, 8 Texas Crim. App., 135, at p. 139, said:
"The law requires of the defendant a rigid compliance with the exact terms prescribed for such application, and if there is a lack of diligence apparent from the application or otherwise, its mandate is inexorable and the trial must proceed."
In Walker v. State, 13 Texas Crim. App., 618, at p. 647, this court said:
"We know of no rule of law which requires the State to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show affirmatively and distinctly that he has used all the diligence to obtain his witness required by law."
In Long v. State, 17 Texas Crim. App., 128, this court said:
"The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. . . . The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments."
In Massie v. State, 30 Texas Crim. App., 64, this court said:
"Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption, when indulged, will and must be in favor of the rulings of the court in reference to the matter complained of and not against same."
The record herein shows that said witness Lum Hardin testified in
said examining trial on May 8th. A statement of his testimony was then made in writing, signed and sworn to by him. Appellant and some, if not all, of his attorneys knew this all the time.
Appellant made his first application for a continuance on October 19th when the case was called for trial. Up to that time his application and the record fails to show that he or any of his attorneys used any effort whatever to ascertain the whereabouts of said witness. Inferentially, at least, the record and said application indicate that neither appellant nor any of his attorneys made any effort whatever to locate said witness, or to aid or direct the officers where to find him. The record does not inform us who said witness Hardin is, — whether a young or an old man, married or single, permanently located or a transient. It simply shows that at the time of the homicide he resided in the neighborhood where it occurred. It does not show his business, occupation, or avocation.
The record and application show that for the first time, on October 14th, Mr.
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Appellant was convicted of the murder of his seventeen-year-old stepson — the son of his wife, — and his punishment assessed at ninety-nine years in the penitentiary.
These persons and many others were attending a dance. The killing occurred about midnight May 7, 1914. It was a bright, cloudless, moonlight night, with the moon about full. The parties were out in the open a short distance from the house with quite a number of persons
out there in sight and in hearing. The State introduced three eyewitnesses. Appellant introduced no eyewitness except himself. His defense was self-defense. The testimony by the State makes a clear case of murder and disproved appellant's defense. His testimony alone would tend to show self-defense. We see no necessity of reciting the evidence.
Appellant's main contention seems to be the claimed error of the court in overruling his motions for a continuance for the absence of Lum Hardin, which we will first discuss.
In order to properly discuss this question we will state the law and the evidence applicable thereto. In doing this no reflection is intended upon appellant or any of his attorneys. We merely discuss the question and the evidence as developed by the record.
The record herein and of this court show that the justice of the peace at Aquilla, in Hill County, near where the homicide occurred, the next day thereafter, held an examining trial, upon which he denied appellant bail and properly committed him to the custody of the sheriff of the county; that several days thereafter he applied to the district judge for a writ of habeas corpus, which was granted, and upon hearing by the district judge, he, on June 1, 1914, denied bail and likewise properly remanded appellant to the custody of the sheriff. Appellant appealed from this judgment of the district judge to this court, which affirmed the judgment (168 S.W. Rep., 1199), all thereby showing that it was a murder case, in which the death penalty might likely be inflicted, of which, of course, appellant and all of his attorneys had knowledge. Appellant has been confined in jail at Hillsboro, the county seat of Hill County, continuously from the time the justice of the peace first denied him bail. The grand jury of Hill County duly indicted him September 17, 1914, at the term of court for said county, which began on the first Monday in September. He was duly served with a copy of the indictment on September 23rd. In due time, as was customary, the judge set the criminal docket. On September 25, the judge set this case for trial for October 19th and ordered a special venire for that date. The special venire must have been for quite a number of veniremen.
Two of appellant's attorneys, Messrs. Morrow Morrow, lived at Hillsboro. Judge Morrow of this firm, however, was at Austin in attendance on the State Senate, of which he was a member, until October 15, 1914; two others, Messrs. Taylor Forrester, at Waco; Mr. Forrester said they relied on Mr. Moore to procure process for witnesses; and the other, Mr. Moore, lived at Aquilla, some sixteen or eighteen miles southwest from Hillsboro, in Hill County, near which the homicide occurred. Appellant at no time personally applied for any process whatever for any witness. The first time that any of appellant's attorneys applied for process was on October 14, 1914, — nineteen days after the case had been set for trial and the special venire ordered, and only four days, exclusive of the day on which the process was issued and the case set for trial, before the case was to be tried.
It is the settled law of this State, both by statute and all the decisions, that an accused is not entitled as a matter of right to a continuance; that the truth of his application therefor, as well as the merits of the ground and its sufficiency, is addressed to the sound discretion of the trial court. It is also statutory, as well as in accordance with the decisions, that before an accused can get a continuance he must affirmatively show that he has used due diligence to procure the attendance of his claimed absent witness.
Judge White says: "Diligence in securing the attendance of a witness is in the highest degree essential; and the continuance should invariably be refused when the want of diligence amounts to pure negligence. Greenwood v. State, 9 Texas Crim. App., 638." (Sec. 600, White's Ann. C.C.P.)
"Continuance is properly refused always where there is a want of diligence. O'Neal v. State, 14 Texas Crim. App., 582; Hart v. State, 14 Texas Crim. App., 657; Childers v. State, 16 Texas Crim. App., 524; Hawkins v. State, 17 Texas Crim. App., 593; Timbrook v. State, 18 Texas Crim. App., 1; Barrett v. State, 18 Texas Crim. App., 64; Bond v. State, 20 Texas Crim. App., 421; Moseley v. State, 25 Texas Crim. App., 515; Stegall v. State,32 Tex. Crim. 100; Underwood v. State, 38 Tex. Crim. 193; Henry v. State, 38 Tex.Crim. Rep.."
This court, in Skipworth v. State, 8 Texas Crim. App., 135, at p. 139, said:
"The law requires of the defendant a rigid compliance with the exact terms prescribed for such application, and if there is a lack of diligence apparent from the application or otherwise, its mandate is inexorable and the trial must proceed."
In Walker v. State, 13 Texas Crim. App., 618, at p. 647, this court said:
"We know of no rule of law which requires the State to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show affirmatively and distinctly that he has used all the diligence to obtain his witness required by law."
In Long v. State, 17 Texas Crim. App., 128, this court said:
"The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. . . . The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments."
In Massie v. State, 30 Texas Crim. App., 64, this court said:
"Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption, when indulged, will and must be in favor of the rulings of the court in reference to the matter complained of and not against same."
The record herein shows that said witness Lum Hardin testified in
said examining trial on May 8th. A statement of his testimony was then made in writing, signed and sworn to by him. Appellant and some, if not all, of his attorneys knew this all the time.
Appellant made his first application for a continuance on October 19th when the case was called for trial. Up to that time his application and the record fails to show that he or any of his attorneys used any effort whatever to ascertain the whereabouts of said witness. Inferentially, at least, the record and said application indicate that neither appellant nor any of his attorneys made any effort whatever to locate said witness, or to aid or direct the officers where to find him. The record does not inform us who said witness Hardin is, — whether a young or an old man, married or single, permanently located or a transient. It simply shows that at the time of the homicide he resided in the neighborhood where it occurred. It does not show his business, occupation, or avocation.
The record and application show that for the first time, on October 14th, Mr. Moore, one of appellant's attorneys, applied to the clerk at that late date for a subpoena for said Hardin, and other witnesses; that the clerk at first included Hardin's name in the subpoena with the other witnesses, but then recalling that he had on September 30th, at the instance of the State, issued a subpoena for said witness, in which was included several others, he thereupon so informed Mr. Moore and erased Hardin's name from the subpoena. Mr. Moore acquiesced in this. The clerk was doubtless attempting to act under article 1577, P.C., which prescribes:
"It shall be unlawful for the clerk of any District Court,after a witness in a felony case has been served with a subpoena
or an attachment, to issue any other or further process for said witness, except upon the order of the presiding judge, made upon application to him for that purpose. When a witness has been served with process by one party it shall inure to the benefit of the opposite party, in case he should need said witness; and, as far as practicable, the clerk shall include in one process the names of all witnesses for the State and defendant; and such process shall show that the witnesses are summoned for the State and defendant. Any district clerk who shall violate the provisions of this law shall be deemed guilty of a misdemeanor, and punished by a fine of not less than ten nor more than one hundred dollars."
It will be clearly seen by this that the clerk is forbidden to issue another subpoena for a witness only when that witness has already "been served with a subpoena." Even then, upon application to the judge, appellant or his attorneys could have had another subpoena issued for this same witness. Surely, the appellant and his attorneys are presumed to know this law and if they had not been satisfied then with the process that had been issued at the instance of the State for said witness, they should have applied to the judge and have procured another subpoena for him. It can not be held that appellant, under the circumstances, was deprived of process for his witness. If the clerk was mistaken, the appellant and his attorneys knew it. The law did
not prohibit him from getting another subpoena, unless he had actually been served with a prior subpoena. In this instance, he had not only not been served at that time, but was not served at any other time. Upon application to the judge, which would have taken practically but a short time, he could have secured another subpoena, if he wanted it, even if the witness had been served, but especially as he had not been served. Instead of resorting to the proceedings clearly authorized by law, he elected to abide by the process the State had had previously issued for the witness as a State's witness.
But it is claimed by appellant and his attorneys that they, and neither of them, knew that the court had on September 25th, set the case for trial on October 19th, and they claim that they nor either of them heard or knew of this until about the time Mr. Moore applied for said subpoena on October 14th. Instead of this being an excuse for not applying for process earlier, it but emphasizes the negligence in the premises and shows a total lack of diligence in even applying for process, much less having it served. They all knew the court was in session; they all doubtless knew that appellant had been indicted and served with a copy of the indictment on September 23rd; they all knew that almost necessarily the case must at once be set for trial and a special venire ordered and issued. By their own showing they knew that the docket for the trial of criminal cases would be set for the week earlier than October 19th or in no contingency later than October 19th. It was their business to know what the court was doing in open court about said case and the setting thereof. The slightest diligence by any or either of them, would have disclosed the knowledge of the setting of said case and the proceedings therein, if they had sought to obtain it. As shown, two of his attorneys were residents of Hillsboro, where the court was in session, though Judge Morrow was not there, as stated. The others lived at the points indicated. Everyone knows that the telephone, the telegraph and United States mails could be used any day, practically any hour of the day, to have ascertained these facts or any of them, but they failed to show that they availed themselves of any of these means to ascertain any of these facts, notwithstanding appellant, and they, knew that he would be tried at that term of court; that it was their business and duty to look after the case and prepare it promptly in his behalf for trial.
Again, Judge White, in sec. 599 of his Ann. C.C.P., says:
"An application for continuance must state the residence of the witness; and when it states that a witness is temporarily absent it should state how long he had been so absent, and when he left the county of his residence. Dove v. State, 36 Tex. Crim. 105; Vanwey v. State, 41 Tex. 639; Wolf v. State, 4 Texas Crim. App., 332; Thomas v. State, 17 Texas Crim. App., 437; Colton v. State, 7 Texas Crim. App., 50. Where the application for continuance did not show at what time the defendant ascertained that the witness was a resident of the county to which he had second attachment issued, the diligence was insufficient. Hughes v. State, 18 Texas Crim. App., 130."
Again, Judge White, in sec. 602 of his Ann. C.C.P., says: "The fact that an absent witness desired by the defendant has been duly subpoenaed by the State does not dispense with such diligence as would entitle defendant to a continuance. Drake v. State, 5 Texas Crim. App., 649. Under provisions of article 1577, P.C., either party may avail himself of process issued for witnesses by the opposite party, but the party relying for a continuance on process issued by the adverse party must be able to show that diligence was used by such opposite party. . . . Mixon v. State, 36 Tex.Crim. Rep.; Byrd v. State,39 Tex. Crim. 609."
Neither the applications nor the record otherwise show that the State used any diligence whatever to ascertain the residence or whereabouts of the witness Lum Hardin. All that is shown that the State did was simply and solely to have subpoena issued for him, as stated, and have it placed in the sheriff's hands. Apparently the State was indifferent about getting that particular witness. It seems to us the slightest diligence by the State even to ascertain the whereabout of said witness would have succeeded in doing so in ample time to have secured his attendance, and the appellant on October 14th, when he learned through his attorney that the State had had said process issued, could have then ascertained why he had not been served and made some effort to hunt him up in time to have him served.
We are clearly of the opinion that the lower court ruled correctly in overruling both of appellant's applications for a continuance because no diligence was used to secure the attendance of said witness.
In discussing and passing upon the action of the court in overruling said applications we have discussed the question as if the materiality of the testimony of Hardin in appellant's favor, was conceded. As a matter of fact, the State vigorously contends that the evidence of the absent witness, instead of being in favor of appellant would have been against him decidedly. As stated, a copy of his evidence at the examining trial is contained in the application for a continuance.
Our continuance statute (C.C.P., art. 608) further provides that when an accused's application for a continuance is overruled that "if it appear upon the trial that the evidence of a witness was of a material character and that the facts set forth in said application were probably true, a new trial should be granted."
As stated, said statute and the decisions, are to the effect, as thus stated by Judge White: "The truth, merit and sufficiency of an application therefor are matters now addressed to the sound discretion of the trial court. Abrido v. State, 29 Texas Crim. App., 143." (Sec. 620.) So that the court in acting upon the motion for a new trial because of the overruling of appellant's applications for a continuance must consider and we, of course, must presume he did, whether a new trial should be granted under all of the facts of the case. Under such circumstances, among others, Judge White lays down these rules:
"An application for continuance will be held properly overruled when, in connection with the evidence adduced on the trial, it is apparent
that the proposed absent testimony would not be probably true. Carver v. State, 36 Tex.Crim. Rep.; Reyons v. State,33 Tex. Crim. 143; McKinney v. State, 31 Tex. Crim. 583; Brotherton v. State, 30 Texas Crim. App., 369; Withers v. State, 30 Texas Crim. App., 383; Leeper and Powell v. State, 29 Texas Crim. App., 63; Wilks v. State, 27 Texas Crim. App., 381; Testard v. State, 26 Texas Crim. App., 260; Peterson v. State, 25 Texas Crim. App., 70; Melton v. State, 24 Texas Crim. App., 47; Parker v. State, 24 Texas Crim. App., 61; Collins and Lindly v. State, 24 Texas Crim. App., 141; Henning v. State, 24 Texas Crim. App., 315; Harvey v. State, 21 Texas Crim. App., 178; Doss v. State, 21 Texas Crim. App., 505; Rice v. State, 22 Texas Crim. App., 654; Murray v. State, 21 Texas Crim. App., 466; Cunningham v. State, 20 Texas Crim. App., 162; Bond v. State, 20 Texas Crim. App., 421; Mendiola v. State, 18 Texas Crim. App., 462; Chandler v. State, 15 Texas Crim. App., 587; Henry v. State,38 Tex. Crim. 306."
"The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement, and the overruling of the motion for new trial based upon the application for continuance or postponement, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true. Koller v. State, 36 Tex.Crim. Rep.; Lindsley v. State,35 Tex. Crim. 164; Moseley v. State, 35 Tex.Crim. Rep.; Tate v. State, 35 Tex.Crim. Rep.; McGrath v. State,35 Tex. Crim. 413; Wilkins v. State, 35 Tex.Crim. Rep.; Waul v. State, 33 Tex.Crim. Rep.; King v. State, 34 Tex. Crim. 228; Cline v. State, 34 Tex.Crim. Rep.; Wyley v. State, 34 Tex.Crim. Rep.; Neel v. State, 33 Tex. Crim. 408; Russell v. State, 33 Tex.Crim. Rep.; Shaw v. State, 32 Tex.Crim. Rep.; Hyden v. State, 31 Tex. Crim. 401; Brookin v. State, 26 Texas Crim. App., 121; Browning v. State, 26 Texas Crim. App., 432; Brooks v. State, 24 Texas Crim. App., 274; Jackson v. State, 23 Texas Crim. App., 183; Hennessey v. State, 23 Texas Crim. App., 340; Covey v. State, 23 Texas Crim. App., 388; Rice v. State, 22 Texas Crim. App., 654; Miller v. State, 18 Texas Crim. App., 232; Mathews v. State, 17 Texas Crim. App., 472; Beatey v. State, 16 Texas Crim. App., 421; Wooldridge v. State, 13 Texas Crim. App., 443; Word v. State, 12 Texas Crim. App., 174; Clampitt v. State, 9 Texas Crim. App., 27; Dowdy v. State, 9 Texas Crim. App., 292."
"The court on appeal will not reverse a judgment on account of the refusal of a postponement or continuance unless in connection with the other evidence adduced on the trial they are impressed with the conviction not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. Land v. State, 34 Tex.Crim. Rep.; Gallagher v. State, 34 Tex.Crim. Rep.; Easterwood v. State,34 Tex. Crim. 400; Sinclair v. State, 34 Tex. Crim. 453; Bluman v. State, 33 Tex.Crim. Rep.; Goldsmith v. State, 32 Tex.Crim. Rep.; Hyden v. State,31 Tex. Crim. 401; Hammond v. State, 28 Texas Crim. App., 413; Frizzell v. State, 30 Texas Crim. App., 42; Pruitt v. State, 30 Texas Crim. App., 156; Ellis v. State, 30 Texas Crim. App., 601; Browning v. State, 26 Texas Crim. App., 432; Boyett v. State, 26 Texas Crim. App., 689; Covey v. State, 23 Texas Crim. App., 388; Self v. State, 28 Texas Crim. App., 398; Phelps v. State, 15 Texas Crim. App., 45."
After a careful study of the record herein, we think the trial judge could correctly conclude, as he doubtless did, that the absent witness would not testify as appellant alleged he would, and that even if he did, his testimony in that respect would not be probably true; and we think he was well justified in so believing and holding, and that under the facts and circumstances of this case no reversible error is presented by the court's action in overruling his motions for continuance and denying him a new trial because thereof.
It became a material question whether the open knife which was found upon the body of the deceased some time after he was killed, was appellant's knife. Appellant introduced his wife, who produced, identified and it was introduced in evidence, another knife, — not the one found on deceased, — which she testified and claimed she got out of appellant's pocket that night after the killing, and was the only knife he then or prior thereto had owned. The State was permitted to cross-examine her on this matter. The bill states it pretty full, but it is lengthy and unnecessary to copy it.
Again, appellant had his wife to testify that about three years before the killing she saw her son, the deceased, have a gun, and heard him say in connection therewith that he was going to kill "Lee Stacy with his own G__d d__n gun and shells." On cross-examination the State was permitted, over appellant's objections, to have the wife testify to the facts and circumstances connected with the said threat by the deceased and the action of deceased in connection therewith, and that he soon afterwards permanently left her home, but returned repeatedly before the killing and talked with and to appellant, and was friendly with him, etc. Appellant contends that in these particulars the State could not cross her and have her to detail said facts. We have repeatedly in recent years considered and written upon this subject. We see no necessity to again review the question. It is clear to us that the cross-examination of appellant's wife in this instance was legitimate and proper and in no way in violation of the statute or any decision of this court, but, in effect, entirely in harmony therewith. Roberts v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 100; Taylor v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 56; Johnson v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 512, and the cases and authorities cited in each of them.
Appellant has one bill complaining of the action of the court regarding the argument of Mr. Frazier, one of the attorneys for the prosecution, and of certain remarks used by him therein. It is stated in the
bill that the court refused to permit the appellant's attorneys to object to the language of Mr. Frazier at the time it was being uttered, but required them to wait till the speech was concluded and then he would act upon it and they could request their special charges to the jury on the subject. The bill, it seems, contains the stenographer's report of what occurred, taken down at the time. The court, in explanation of the bill, expressly states that appellant's allegation therein that he refused to hear objections to Mr. Frazier's argument at the time and required them to wait till he had concluded "is incorrect," and he states, and we think is substantiated by the stenographer's report, that they did object during the time and were not required to wait until the conclusion of the speech. We think this bill shows no error. We think also that the language used by Mr. Frazier in argument was based on the evidence or inference therefrom. The court gave some of appellant's special charges requiring the jury not to consider certain language of Mr. Frazier. We think none of this shows any reversible error on the part of the court as held by a long line of decisions of this court. Pierson v. State, 18 Texas Crim. App., 524; House v. State, 19 Texas Crim. App., 227; Tweedle v. State, 29 Texas Crim. App., 586. It is unnecessary to cite the many other cases.
The three questions above discussed, as we understood from appellant's attorneys in the submission of this case, were the points on which they relied for reversal. They assign some other questions. We have examined all of them, and in our opinion, none of them present any error.
The judgment will, therefore, be affirmed.
Affirmed.