
    CALLABRIZZI v. STATE.
    (No. 9749.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.
    Rehearing Denied Nov. 17, 1926.)
    1. Criminal law <&wkey;1169(1) — Permitting proof that deceased was Irish and defendant Italian held harmless, in absence of showing of bias of jurors.
    Permitting proof in murder prosecution that deceased was an Irishman and that defendant was Italian held harmless; there being no showing of bias on part of jurors in favor of Irishman or of any prejudice against Italian race.
    2. Homicide &wkey;>l74(6) — Testimony of position in which witness found deceased’s gun more than hour after homicide held admissible, in absence of showing that surroundings had changed.
    Testimony of witness as to position in'which he found deceased’s gun after homicide more than an hour after killing held admissible, in absence of showing that surroundings had undergone a change since difficulty and prior to time when witness arrived on scene.
    3. Witnesses <&wkey;340(3) — Refusal to permit defendant to prove general reputation as to virtue and chastity of deceased’s daughter, who was witness, held proper.
    In murder prosecution, refusal to permit defendant to prove that general reputation of witness, who was daughter of deceased, for virtue and chastity, was notoriously bad, held proper.
    4. Homicide <S&wkey;l66(6) — State’s counsel could inquire of defendant relative to lascivious conduct with deceased’s daughter, where it was shown killing arose thereby.
    In murder prosecution, state’s counsel was properly permitted to ask defendant relative to lascivious conduct with daughter of deceased, where it was shown that killing grew out of and was caused by such conduct engaged in between them.
    
      On Motion for Rehearing.
    5. Criminal law &wkey;>l 119(4)— Bill of exceptions must show that argument of state’s counsel was not supported by evidence.
    Objection to argument of state’s counsel that witness and defendant were partners is not reviewable, where bill of exceptions does not show that statement was not supported by evidence.
    Commissioners’ Decision.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Frank Callabrizzi was convicted of murder, and he appeals.
    Affirmed.
    George M. Ritchie and Ritchie & Ranspot, all of Mineral Wells, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the state.
   BERRY, J.

The offense is murder, and the punishment is 50 years in the penitentiary.

The appellant, by his bill of exceptions No. 1, complains at the action of the court in permitting the state to prove that the deceased was an Irishman, and by his bill No. 2, complains at the court’s action in permitting the witness to testify that the appellant is an Italian. These are matters of ho consequence, as we view this record. There is no suggestion in this record that there was any bias on the part of the jurors in favor of an Irishman and no suggestion that there was any prejudice against the Italian race. It occurs 'to us that this testimony was admissible in a proper development of the case. In any event, we think the testimony was clearly harmless.

Appellant also complains at the court’s action in permitting the witness Boyd to describe the position in which he found the deceased’s gun in the cat after the homicide. His objection was to the effect that the evidence had already shown that the homicide had occurred more than an hour prior to the time the witness visited the car, and that a great many people had visited and been around the car and the scene of the homicide before Boyd reached the place, and that it was not shown that the gun was in the same position that it had occupied immediately after the homicide had occurred. The objections to this testimony would go to its weight rather than to its admissibility. In the absence of any showing that the surroundings had undergone a change since the difficulty and prior to the time when the scene of the difficulty was reached by the witness Boyd, his testimony was admissible.

Appellant complains at the court’s action in refusing to permit him to prove the general reputation of the witness Clara Wim-berly, the daughter of the deceased, and I states in his bill that if permitted he could have proved by the witness Ellis that her reputation for virtue and chastity were notoriously bad. We think this testimony was not admissible. We are confirmed in this view by reason of the fact that the appellant placed the witness Clara Wimberly on the-stand, and among other things proved by her that no other man save the defendant had ever had intercourse with her. There is no suggestion in the record that appellant was surprised at this testimony and no effort made on his part to impeach her concerning this matter. There is also complaint made at the argument of the district attorney, but we are satisfied from a careful consideration of the statement of facts that the bills of exceptions show no language used by him that was not justified as an inference to be drawn from the facts proved. It occurs to us that the argument in every instance was a deduction properly drawn from the evidence contained in the record.

We also think that no error is shown in the court’s action in permitting state’s counsel to ask the appellant if he had intercourse with the daughter of the deceased. It is clear from this record that the killing grew out of and was caused by the lascivious conduct engaged in between the appellant and the daughter of the deceased, and in the development of a motive as well as the other proper surroundings pertaining to the case, it was legitimate to permit the state to show the illicit relations between appellant and deceased’s daughter.

We have carefully examined the charge given in this ease, and think that it is in accord with the precedents and that appellant’s objections thereto are without merit. From the state’s standpoint, an unprovoked and an unnecessary killing1 is shown, and, the issues of fact having been properly submitted to the jury, we feel that wo would be without warrant in disturbing their verdict.

Finding no error in the record, the judgment is in all things affirmed.

PER OURIAM. The forteigoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

We have carefully considered the various questions raised. Referring to the argument of the district attorney complained of in bills of exception Nos. © and 7, we observe that in each instance the-bill is qualified', the qualification stating, in-substance, that counsel for the state was arguing from the evidence and merely stating his deductions therefrom in the argument thus objected to. Accepting this qualification as speaking the truth, we are unable to agree with appellant’s complaint. Nor are we in accord with the proposition that the language used in the argument set out in bill of exceptions No. 8, in the absence of any requested instruction to the jury hot to consider such argument, could be deemed possible, or that injurious effect that would call for a reversal.

Bill of exceptions No. 5 does not present complaint of the reception of any testimony showing that' appellant’s witness O’Hara had been indicted for perjury. The bill presents appellant’s objection to state’s counsel saying in his argument: “The defendant and the said Teddy O’Hara were partners and were working together.” There is nothing in the bill apprising this court of the fact that this argument was not abundantly supported 'by testimony. That such is the requirement is so well settled as to need no citation of authorities.

Appellant insists that the court erred in the matters complained of in bill of exceptions No. 4. Among other things said bill shows that appellant proposed to prove by one Ellis that the daughter of deceased was generally talked about in the neighborhood in which she lived as having been guilty of carnal intercourse with a number of persons whose names are set out in the bill. Such testimony was not proper.

Being unable to agree with any of the contentions made in behalf of appellant, the motion for rehearing will be overruled. 
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