
    LEWIS v. STATE.
    (No. 8110.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.
    Rehearing Denied Nov. 12, 1924.)
    1. Criminal law <@=811(1) — Generally isolated facts may not be singled out or instruction given thereon.
    Generally isolated facts may not be singled out or instruction given thereon.
    
      2. Criminal law <®=>8I I (2) — Refusal to instruct on fact connected with homicide held not error.
    Where that part of encounter in which son of deceased was wounded was inseparably interwoven with other facts immediately surrounding killing of deceased by accused, refusal to instruct that prosecution was not for wounding the son, and that that part of the testimony could not be considered, held, not error.
    3. Criminal law <©=>720(I) — Comment upon facts legally before jury is usually within scope of proper argument.
    Comment upon facts legally before jury is usually within scope of proper argument.
    4. Criminal law <§=7221/2 — Remarks of prose* cution to jury that accused also crippled deceased’s son for life held not reversible.
    Where accused not only killed deceased but also seriously wounded his son in same encounter, prosecution’s remark to jury that deceased’s son was shot in the back by accused and made a cripple for life 'held not reversible, where the evidence adduced brought out that fact.
    Appeal from District Court, Guadalupe County; Lester Holt, Judge.
    Monroe Lewis was convicted of murder, and he appeals.
    Affirmed.
    Wurzbach, Wirtz & Weinert and Dibrell & Mosheim, all of Seguin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder'; punishment fixed at confinement in the penitentiary for a period of 15 years.

This is the second appeal. A recital of the facts will be found in the report of the former case. 89 Tex. Cr. R. 345, 231 S. W. 113.

Immediately following the several paragraphs of the charge submitting to the jury the offense of murder, the court instructed the jury that if in their minds there was a reasonable doubt as to the appellant’s guilt of murder, he should be acquitted of that offense, and they might then determine whether or not he was guilty of the offense of manslaughter. Following this is a charge on manslaughter, which is criticized as shifting the burden of proof. The question raised and the charge in question are not different from that presented in Pitts v. State, 29 Tex. App. 374, 16 S. W. 189; Moore v. State, 88 Tex. Cr. R. 630, 228 S. W. 218; Alley v. State, 92 Tex. Cr. R. 196, 241 S. W. 1024.

In the encounter in which the homicide took place, the son of the deceased was wounded by the appellant: It was the appellant’s claim that he was assaulted by both; that the injuries inflicted were in his own defense. That part of the transaction in which the son of the deceased was wounded seems inseparably interwoven with the other facts immediately surrounding the homicide. The wounding of the son was necessarily revealed in developing the case. We are not in accord with the view urged by the appellant that this fact should have been singled out by an instruction by the court that the prosecution was not for wounding the son and that that'part of the testimony could not be considered. We understand that there is a general rule against singling out and instructing the jury upon isolated facts. See Vernon’s Tex. Crim. Stat. vol. 2, p. 479, note 125; also, page 495, note 15; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. 583; Hahn v. State, 73 Tex. Cr. R. 409, 165 S. W. 218; Gillespie v. State, 73 Tex. Cr. R. 585, 166 S. W. 135.

It seems that in arguing the case, the attorney for the private prosecution stated to the jury that the witness Ewart Mathews was shot in the back by the appellant and. made a cripple for life. This argument was made the subject of objection. The facts stated were part of the res gestae. In our .judgment, the comment upon it did not exceed the limits of legitimate argument, nor was its malting so fraught with injury that, when considered in connection with tne verdict and record, it would demand that the •conviction he annulled. In stating to the jury the facts embraced in the argument, counsel apparently added nothing to that of which the jury was aware through the legal introduction of testimony Ordinarily, it is not beyond the scope of proper argument to comment upon facts legally before the jury. Branch’s Ann Tex. P G. § 807; Leonard v. State, 20 Tex. App. 442; and other cases listed by Mr Branch in the section mentioned. In the case of Taylor v State, 50 Tex. Cr. R. 560, 100 S. W. 393, to which we have been referred, there appears to have been improper use made of the impeaching testimony. Such is not the case here. Not only was counsel licensed by law to mention the fact proved, but the law also sanctions proper comment upon it. Moreover when, the argument adds to the record no new facts, its effect'is to be measured by the evidence and the 'verdict. This principle obtains even though the remarks are of questionable propriety or transcend the limits of lawful debate. Branch's Ann. Tex. P. C. § 361, subd. 5; Pounds v. State, 89 Tex. Cr R. 273, 230 S. W. 683; Borrer v. State, 83 Tex. Cr. R. 198, 204 S. W 1003. Considered in such light the argument is not deemed reversible

We have examined each of the several bills of exception We fail to find any ruling of the trial .court brought forward for review warranting a reversal and are unable to conclude that the evidence does not, support the verdict.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have examined appellant’s motion, but believe our former opinion properly disposed of the questions raised. The motion is therefore overruled. 
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