
    (85 Tex. Cr. R. 4)
    GILLESPIE v. STATE.
    (No. 4981.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.
    Rehearing Denied April 30, 1919.)
    1. Homicide @=171(5) — Evidence — Acts of Deceased.
    In homicide trial, it was not error to admit testimony of deceased’s wife, showing that after receiving his fatal wound he went into his home and lay down on the floor and died in about five minutes, and that the only statement he made was, “I think he has killed me,” or words to that effect.
    2. Criminal Law @=6S0(1) — Order oe Proof.
    In homicide trial, where the defense was largely predicated upon the fact that the fatal difficulty arose over certain rubber goods which wore exhibited to accused at the time of the difficulty, the admission of testimony that witness had examined the contents of a pocketbook taken off deceased immediately after the difficulty, that he failed to find such articles therein, since much of the testimony of accused and his witnesses was directed to showing that these articles were in deceased’s possession.
    3. Criminal Law @=723(1) — Inflammatory Argument of Prosecutor.
    Argument of the-'prosecutor that deceased’s family had been ruined and his wife and children forced into another state, held not of such inflammatory nature as to require or justify a reversal.
    4. Criminal Law @=728(2) — Argument of Counsel — Objection.
    If argument of the prosecutor was improper, objection should have been made to it in open court.
    5. Criminal Law @=1092 (12) — Bystanders’ Bill of Verification.
    The Court of Criminal Appeals is not authorized to consider exception attempted to be preserved by bystanders’ bill, where the affidavit to >such bill is signed by two persons instead of three as required by statute.
    Appeal from District Court, Clay County;’ Wm. N. Bonner, Judge.
    Cauley Gillespie was convicted of manslaughter, and appeals.
    Affirmed.
    R. E. Taylor and Wantland & Parrish, all of Henrietta, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.

The former appeal is reported in 80 Tex. Cr. R. 432, 190 S. W. 146, and sufficiently states the facts.

The complaint of the admission of the testimony of the wife of deceased, showing his movements during the short lapse of time between the receipt of the wound and his death, is not well taken. The effect of it is to show that he went into his house and lay down on the floor and died in about five minutes; that the only statement he made was, “I think he has killed me,” or words to that effect.

A witness testified to an examination of the contents of a pocketbook which was taken off the deceased immediately after the difficulty, and his failure to find therein certain rubber goods, and his statement that -if they had been there he believed he would have seen them. The appellant’s defense was largly predicated upon the fact that the difficulty arose over the articles mentioned which were exhibited to him at the time of the difficulty. The bill states that, at the time the evidence mentioned was introduced, the appellant’s testimony touching these matters had not been developed. Since it appears from the record that much of the testimony of the appellant and his witnesses was directed to the affirmative side of the issue as to whether, these articles were in the possession of the deceased at the time mentioned, we think there was no harmful error shown in the bill.

After the difficulty, and after various people had come to the home of deceased, passed in and out at the gate, which was about 10 or 15 feet from the place where the buggy in which the difficulty took place was standing at the time, a handkerchief, according to the testimony of one of the witnesses, was picked up near the gate. Various objections were urged to the admission of this testimony. There is an absence of any explanation in the bill relating to whom the handkerchief belonged and in what way it was connected with the transaction or injuriously affected the appellant’s case.

One of the bills complains of the argument as follows:

“Jesse Murphy’s family has been ruined; his wife and children forced into the 'state of Oklahoma and out of the state of Texas.”

The bill shows that since the homicide the wife and children have moved to Oklahoma and reside there. The bill is qualified with the statement that appellant’s counsel came to the trial judge and told him that the state’s attorney had used the language mentioned, which the judge says he did not hear, but that he would approve the bill upon the statement of counsel for the appellant. We do not regard the argument as one of such inflammatory character as to require a reversal or to justify one. We are not prepared to say that the inference of counsel that the family of deceased was ruined by the death of deceased was an unauthorized one, and it affirmatively appears they had moved out of the state. Granting,- however, that it was not a proper argument, it might have heen withdrawn if counsel had made his objection to it in open court. See Weige v. State, 196 S. W. 524.

There was an effort to preserve an exception to another argument by bystanders’ bill. The affidavit is signed by two persons. The statute requires the verification of such a bill by three bystanders. Unless it is so verified, we are not authorized to consider it. Osborne v. State, 56 S. W. 53.

We think the evidence is sufficient to sustain the verdict of manslaughter.

Finding no error in the record, the judgment is affirmed. 
      @s55For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     