
    MOORE v. STATE.
    (No. 10511.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    1. Witnesses <&wkey;380 (5)— State’s questioning own witness as to previous statement, which she denied making, held not error as impeaching own witness.
    In prosecution for murder, where the state questioned its own witness as to whether or not she had previously stated that the defendant had made a certain remark and she denied having so stated, though she affirmed that some one did make such remark, held that the state was not impeaching its own witness and admission of testimony was not error.
    2. Homicide <&wkey;l69(7) — Evidence in murder trial as to remark which defendant made in hallway held admissible, notwithstanding witness was not sure if defendant was person making it.
    Evidence in murder trial to the effect that the defendant made a certain remark tending to show intent to kill deceased held admissible, notwithstanding that the witness testifying to such remark did not actually see the defendant make such remark and was not sure that the defendant was the person who made it.
    3. Homicide <&wkey;l66(IO) — Evidence in murder trial that deceased was seen with money held competent on theory that money was motive.
    In a murder trial, where it was the state’s theory that the deceased was killed for his money, evidence that deceased was seen on various occasions in the possession of a quantity of money held competent.
    4. Criminal law <&wkey;l09l(8) — Bills of exception to argument deemed objectionable should specify argument objected to and show clear reasons ‘why it is erroneous.
    Bills of exception to argument of counsel deemed objectionable should set out specifically the particular argument objected to and make it appear clearly that the same is erroneous under the facts and circumstances of the particular case.
    5. Criminal law <&wkey;>l09l(8) — Bill of exceptions - complaining of argument, part of which is permissible and part not, cannot be sustained.
    A bill of exceptions complaining of argument of counsel, a part of which is permissible and pertinent and a part of which is improper, cannot be sustained.
    Appeal from District Court, Bexar County; O. M. Eitzhugh, Special Judge.
    A. S. Moore was convicted of murder, and he appeals.
    Affirmed.
    Graham & Callaghan, of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Lamar G. Seeligson, Asst. Dist. Atty., both of San Antonio, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of murder; punishment, imprisonment in the penitentiary for life.

There are 23 bills of exception in the record. A number of them appear to be approved by bystanders. While we are in some doubt as to said bills, we have concluded to consider the bystanders’ bills. Bills Nos. 1, 2, and 3 set out at great length exactly the same testimony of Mrs. Poteet. The testimony thus reproduced in each bill covers 9 pages of the transcript. The particular matter complained of in bill No. 1 is that, after the witness had given the testimony thus set out, the state’s attorney asked her whether or not she had stated on December 25, 1924, when the defendant came up to where she and deceased were standing in the doorway, he made the remark, “Oh, you sons of bitches, I will get you.” This question and its answer were objected to on the ground that it was an attempt on the part of the state to impeach its own witness. The witness denied having made the statement inquired about, but affirmed that some one in the hall, near where she and deceased were standing, did make a statement somewhat similar to the one above referred to. She testified that appellant and some other parties were out in said hall. We do not think said bill presents any error.

Bill No. 2 after setting out the same evidence of Mrs. Poteet, and the same question and answer which appear in bill No. 1, sets out further that after she stated who was out in the hall with appellant when the remark testified to by her was made, the state’s attorney asked her if she had not stated on December 25, 1924, when asked if when appellant came up ana made the remark, “Oh, you son of a bitches, I will get you,” she had not answered,. “No; he didn’t say ‘You sons of bitches,’ what was said in the hall was, ‘You son of a bitch, I will get you,’ ” and that thereupon, upon cross-examination by the defendant’s attorney, she had answered, “I wouldn’t say for sure it was Mr. Moore who made that statement, because I could be mistaken, and there were men up and down the hall, coming from their ro'oms, and going backwards and forth to their rooms.” This testimony was objected to and motion made to strike it out on the ground that it was an attempt by the state to impeach its own witness, and that it was made outside'the presence and hearing of the appellant and was highly prejudicial. We are not able to say that the testimony was not relevant and not material, nor is there anything in the hill showing that there was any effort on the part of the state to impeach its own witness. The bill does not present any error. Bill of exceptions No. 3 appears to be identical with bill No. 2 and presents no error.

Bill of exceptions No. 4 complains of proof of the fact that when appellant was arrested he had liquor in his possession. Such possession would appear to be relevant and material as shedding light on the acts, conduct, and statements of the appellant.

The state’s theory in this case was that deceased was killed for his money. By bills of exception Nos. 5, 6, 7, 8, 9, 10, 11, and 12 complaints are made of the testimony of various witnesses showing that on occasions and at times not too remote from' that of the homicide deceased was seen in possession of a quantity of money. We think the testimony competent, and that none of the bills present error.

The remaining bills are to argument made by the attorney for the state. Many of said bills present complaint of argument which is set out at length. We have carefully examined the argument complained of in each instance as well as the requests presented to the court for instructions to the jury not to consider such arguments, and are of opinion that none of the bills of exception present error.- It is well settled that bills of exception to argument deemed objectionable should not only set out specifically and pointedly the particular argument objected to, but such bill should also set out facts which negative the proposition of the reasonable pertinence of such argument and should show that such arguments are not supported by or based upon any evidence. Gonzales v. State, 88 Tex. Cr. B. 248, 226 S. W. 405. If such bill of exceptions sets out extended argument, that part of same deemed erroneous should be particularized and the bill should make it reasonably appear that the same is erroneous under the facts and circumstances of the particular case. Rowan v. State, 97 Tex. Cr. R. 130, 260 S. W. 591.

The bill of exceptions complaining of argument should set out the surroundings and show such facts as that the lack of pertinence to any material issue in the case as well as the injury of. same should appear in the bill. Greenwood v. State, 99 Tex. Cr. R. 160, 268 S. W. 469. A bill of exceptions which complains of argument, a part of which is permissible and pertinent and a part of which is improper, will not be held to present a complaint which can be supported by this court. Newman v. State, 99 Tex. Cr. R. 323, 269 S. W. 87; Nelson v. State, 99 Tex. Cr. R. 564, 270 S. W. 865. We believe each and all of the bills of exception relating to the argument in this case are violative of the general rules referred to in the cases mentioned and others.

Being of the opinion that none of the bills of exception herein present any error for which this case should be reversed, the judgment will be affirmed. 
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