Jones v. State , 131 Tex. Crim. 650 ( 1937 )

KRUEGER, Judge.

— Appellant was convicted of the offense of murder with malice, and his punishment was assessed at confinement in the state penitentiary for life.

This is the second appeal in this case. The opinion delivered by this court on the former appeal is reported in 91 S. W. (2d) 341, wherein the facts' are sufficiently stated. We have again reviewed the. statement of facts in this record, but find no material difference between the facts proven on the former appeal and those proven on the trial from which this appeal is prosecuted. Hence we do not deem it necessary to restate the same.

Bill of exception number six reflects the following occurrence. While the State’s witness Williams was being cross-examined by defendant’s counsel, the district attorney in the presence of the jury remarked that the defendant’s counsel had gone over the matter three or four times as to where deceased’s pistol lay — to which appellant’s counsel replied that he was endeavoring to clear up some confusion. At this juncture the court interceded with the remark, “I don’t see any confusion about it.” To which appellant objected on the ground that the remark constituted a comment on the testimony of the witness and was prejudicial. The bill is insufficient in that it fails to state that there was any confusion. A bill of exception to be sufficient should set out the matter in confusion which was sought to be cleared up. The mere objection that there was confusion is not a certificate of the trial court that such was the case. See Wright v. State, 36 Texas Crim. Rep., 35; Ferguson v. State, 61 Texas Crim. Rep., 153 (155). The court, however, immediately instructed the jury that if they heard his remark it was not evidence and they should not consider it for any purpose whatever. We do not believe that the remark of the court was a comment upon the weight of the testimony and an invasion of the apellant’s legal right. In support of the view here expressed we refer to the cases of English v. State, 213 S. W., 632, and Herridge v. State, 76 S. W. (2d) 522.

By bill of exception number seven appellant complained of the court’s charge on murder with malice on the ground that the testimony was insufficient to authorize such instruction. We do not agree with him because in our opinion the State’s testimony was such that the jury could reasonably draw the conclusion therefrom that appellant was guilty of murder with malice. Appellant requested a number of special instructions and all were refused by the court. We have carefully reviewed the court’s charge in the light of the special requested instructions and have reached the conclusion that the court’s charge is a full and fair presentation of the law as applicable to the facts in the case. Some of the special requested instructions comprehend more than one subject and especially is that true with reference to the special requested instruction on- self-defense from a milder attack. Hence the court had a right to decline to give such instruction.

Other bills of exception appear complaining of the admission of testimony. These have been examined and in the light of the trial court’s qualification thereto fail to reflect error.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the Court.