
    LEECH v. STATE.
    (Court of Criminal Appeals of Texas.
    June 21, 1911.
    Rehearing Denied Oct. 18, 1911.)
    1. ©BAND Juey (§ 31) — Conduct of Proceedings — Adjournment.
    Code Or. Proc. 1895, art. 397, provides that, before the grand jury has been impaneled, there may be a challenge to the array, or to any particular juror, and that in no other way shall objections to the qualifications and legality of a grand jury be heard. Articles 400 and 401 set out the causes of challenge to the array or to a particular juror. Article 410 makes nine members a quorum. Article 419 provides that the grand jury shall meet and adjourn at times agreed upon by a majority thereof, and by article 411 a grand jury which has been discharged by the court may be reassembled by the court at any time during the term, and in case of vacancy the court may complete a panel in the way prescribed for its completion in the first instance. A grand jury properly impaneled and organized was sitting during the term of the district court, and by permission of the court adjourned for a week, but on the same day after adjournment it was reassembled by order of court with 10 members present, and found an indictment against defendant for a homicide committed on that day, and on poll of the jury. by the clerk the 10 present concurred in finding the indictment, and it was then received and filed. Held, that the court and judge thereof had power to reassemble the grand jury at such a time, and that it was the legally constituted grand jury of the district court at the time of the indictment.
    [Ed. Note.' — For other cases, see Grand Jury, Dec. Dig. § 31.]
    2. Homicide (§ 158) — Evidence — Intent— Previous Threats.
    Threats by the accused against the deceased are always admissible in a homicide case as proof of express malice and motive.
    [Ed. Note. — For other eases, see Homicide, Gent. Dig. §§ 293-296; Dec. Dig. § 158.]
    3. Homicide (§ 158) — Evidence — Intent— Previous Threats — Remoteness.
    Threats against the deceased, though made three years or more prior to the killing for the same purpose and under the same circumstances, and tending to explain the main and immediate cause of the killing, are admissible in a homicide case.
    [Ed. Note. — For other cases, see Homicide, Dee. Dig. § 158.]
    
      4. Criminal Law (§ 1037) — Appeal and Error-Bill of Exceptions — Improper Argument by Counsel.
    Where improper remarks have been made by the prosecuting officer in argument to the jury, there is no ground for reversal, unless defendant objects, takes a bill of exceptions, and asks a special charge in writing to disregard the remarks, and the charge is refused.
    [Eld. Note.»-For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2G45; Dec. Dig. § 1037.]
    5. Criminal Law (§ 730) — Tria3>-Argument oe Counsel — Action op Court.
    One of the prosecuting officers in a murder case in discussing the character of defendant said, “Good character amounts to nothing. Any one can prove a good character. V. G. * * * who murdered his mother and burned her body, proved a good character.” Another prosecuting officer stated to the jury that it was a matter of common knowledge that the people of the country were being criticised for not performing their duties and convicting criminals, and that he hoped such criticism would not be made concerning the actions of this jury after this case should be disposed of. The court as to the first remark objected of its own motion, stated that it was a flagrant breach of duty, and admonished and warned the speaker not to repeat his offense, instructed the jury not to consider what he had said, and that they must try the case on the evidence, and refused any apology or further allusion to the matter. The remarks of the other officer were promptly stopped with a statement by the court that the argument was improper, and should not have been' made, and that the jury should disregard the argument and consider only the quality of the evidence, and as to both remarks the court offered to give a written charge, if desired, by defendant’s attorneys, which charge was not requested, the improper argument is cured by the action of the parties and the court at the time, and hence is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    6. Criminal Law (§ 1043) — Objection to Insrtuctions — Indefinite and Insufficient Objection.
    Where an instruction in a homicide ease is objected to as erroneous because it does not fully and correctly state the law as to design and malice aforethought, the objection is too general to require a review of the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654^-2655; Dec. Dig. § 1043.]
    7. Criminal Law (§ 822) — Instructions— Construction of Charge as a Whole.
    A charge of the court is to be taken as a whole, and a slight error in any particular part, where the whole shows no material error, is no cause for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995; Dec. Dig. § 822.]
    8. Criminal Law (§ 822) — Instructions— Intent and Malice.
    A charge in a murder case that, to warrant a conviction of murder in the first degree, the jury must be satisfied by the evidence beyond a reasonable doubt that the defendant, before the act, deliberately formed the design with a calm and sedate mind to kill deceased, that he selected and'used the weapon or instrument reasonably sufficient to accomplish the death by the mode and manner of its use, and that the killing was unlawful, but the act must not result from a mere sudden, rash, and immediate design, springing from an inconsiderate impulse, passion, or excitement construed as a whole, is not prejudicial to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 822.]
    9.Criminal Law (§ 1186) — Appeal and Error — Harmless Error — Prejudice.
    Under the express provisions of Code Cr. Proc. 1895, art. 723, as amended by Acts 25th. c. 21, this court is prohibited from reversing a judgment in a criminal case, unless there was such error at the trial as was calculated to injure the rights of the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1186.]
    Appeal from District Court, El Paso County; P. H. Clarke, Special Judge.
    John Leech was convicted of murder in the first degree, and he appeals.
    Affirmed.
    J. E. Wharton and P. E. Gardner, for appellant C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes.
    
   PRENDERGAST, J.

On June 17, 1910,. the appellant was indicted by the grand jury of El Paso county for the murder of E. Kohlberg on that day by shooting him with a pistol. He was convicted of murder in the-first degree, and a life penalty in the penitentiary was assessed against him.

The appellant, by his attorneys, has filed-a brief in the case, and also orally argued the case when it was submitted. The material questions are presented by the appellant’s brief, and, while we have considered all other grounds of the motion for new trial, we will only discuss those presented by the brief, as it is unnecessary to discuss any of the others.

The killing is shown to have occurred just before or about 5 o’clock in the evening of June 17, 1910. The district court was then in session with a properly organized and impaneled grand jury, and had been for some time. On June 17th by permission of the court the grand jury adjourned until June 24, 1910. Very soon after the killing on the same day by the order of the court, the grand jury was reassembled at 8 o’clock that evening. It seems that only 10 of the-12 grand jurors could be reached, and were present when the case was investigated and considered by the grand jury, and the indictment was found. At the time the indictment was returned into open court on said date, by order of the court, the clerk polled the jury, when 10 of them answered present and reported to the court that they concurred in finding the bill, which was thereupon ordered to be received and filed by the clerk, and this was done. On June 24, 1910, the appellant filed a motion to set aside the indictment against him, for the reason that he was given no opportunity to challenge the-array of the grand jury or the personnel thereof prior to the time the indictment was returned; that the grand jury was reconvened on the day of the killing and after the killing, without the knowledge of the defendant, and the indictment was returned against him while he was in jail without counsel and without the means or opportunity of securing the same, and defendant was given no opportunity to raise any objection to the qualification or the legality of the grand jury, and because the grand jury had on the morning of June 17, 1910, adjourned until the 24th of that month, that some of the members of the grand jury were not notified of such call, and had no opportunity to be present at the deliberations, and that the indictment was returned by only 10 grand jurors, and that the indictment was brought about at the instigation of a combination of influential persons, and was not the result of calm deliberation. This motion by the appellant to set aside the indictment was contested by the state as being wholly insufficient and presenting no reasons why the indictment should he set aside, and further showed that on May 2, 1910, the grand jury for that term of court had been duly and properly summoned, impaneled, and sworn as the grand jury for that term of the court; that the grand jury thereafter convened from time to time and date to date under a proper order of the court, and on June 17, 1910, met and held a legal meeting, and by permission of the court were permitted to adjourn until June 24th following; that on that date, June 17, 1910, the said court and the judge thereof made and entered an order in the minutes of the court reconvening the grand jury on that date at S o’clock p. m.; that 10 of 'the grand jurors were present at the investigation of the charge against the appellant, and that, after due deliberation and hearing of the testimony, the indictment was returned into open court when and where the grand jurors were polled, and it was shown that 10 were present and participated in said deliberations, and that as many as 9 concurred in the finding of the indictment. It is also expressly denied that the indictment was brought about at the instigation of a combination of influential persons, hut that it was the result of calm deliberation. This contest by the state was supported by the undisputed affidavit of the foreman of the grand jury.

Article 397, O. C. P., provides: “Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, he brought into court to make such challenge.” Article 400, C. C. P., provides: “A challenge to the array shall be made in writing, and for these causes only: (1) That the persons summoned as grand jurors are not, in fact, the persons selected by the jury commissioners. (2) In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them.” Article 401, O. O. P., provides: “A challenge to a particular grand juror may be made orally, and for the following causes only: (1) That he is not a qualified grand juror. (2) That he is the prosecutor upon an accusation against the person making the challenge. (3) That he is related by consanguinity or affinity to some person who has been held to bail, or who is in confinement upon a criminal accusation.” Article 410, O. O. P., provides: “Nine members shall be a quorum for the purpose of discharging any duty or exercising any right properly belonging to the grand jury.” Article 419, O. O. P., provides: “The grand jury shall meet and adjourn at times agreed upon by a majority of the body, but they shall not adjourn at any one time for more than three days unless by consent of the court; but with the consent of the court they may adjourn for a longer time, and shall as near as .may be conform their adjournments to those of the court.” Article 411, O. O. P., provides: “When a grand jury has been discharged by the court for the term, it may be reassembled by the court at any time during the term, and in case of a failure of one or more of the members to reassemble the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance.”

The above we think are the only statutory provisions applicable to the question here raised. The appellant does not show anywhere, or claim, that he would, or could, have successfully challenged either the array or any of the grand jurors participating in the consideration or return of the indictment against him. Neither does he claim to have been in any way injured by the matter of haste in his indictment. He does not claim that any of the grand jurors were disqualified for any reason. It is our opinion that the grand jury which did indict appellant was the legally constituted grand jury of the district court of El Paso county at the time of the indictment; that the court and the judge thereof had the power and authority to reassemble or reconvene the grand jury at the time it did, and, as no injury whatever is shown to the appellant, the court did not err in not setting aside the indictment. In this connection it might he well to state that the case was not tried at that term of the court, but was continued at the suggestion of the appellant to the next term of the court, and that his trial was not begun until October 3, 1910. No authority is cited by appellant in his brief or oral arghment to sustain his motion to set aside the indictment. It is not necessary to recite in full the evidence in this case. We will only give a brief summary of it so as to more clearly bring out tbe questions discussed and decided.

Tbe deceased, Kohlberg, some seven years before tbe billing, rented to appellant a hotel belonging to tbe deceased. It seems that no trouble arose between them about tbe payment of tbe rents until February or March, 1907; at least, if any trouble arose before then, the evidence does not disclose it. Tbe deceased himself did not collect bis rents, but bad rental and collecting agents to do so for him. In February or March, 1907, tbe appellant got behind in tbe payment of bis rents for tbe hotel. Deceased’s agents thereupon began to press him for payment, repeatedly presenting bills for tbe payment of tbe back rent. Tbe collecting agents for tbe deceased was a firm known as Stevens Bros. They bad various bookkeepers and collectors whom they sent out to collect rents and also from tbe appellant. Among other agents whom they sent for the collection of tbe rent was one A. R. Coleman. Coleman went to see the appellant with a list of these back rents, and demanded payment. Appellant objected to it, and they had considerable argument thereabout at tbe time. This was in February or March, 1907. Coleman made a second trip to tbe appellant, and presented tbe bill, and told appellant that deceased bad ordered him, appellant, to be put out if be did not pay bis rent. Tbe appellant replied, “If be does, I will kill tbe damn Jew.” It seems that from that time on there was more or less trouble with the appellant in tbe collection and attempted collection of tbe rents due tbe deceased for the hotel. Again, in April, 1909, Chas. B. Stevens, one of tbe firm of Stevens Bros., after repeated efforts to collect tbe rents, told the appellant that tbe rents continued to go behind, and, if they continued, they would be obliged to take steps to put him out, and be then told this witness that, if anything was done to put him out of that bouse, be would go up there and kill Mr. Kohlberg over it. Again, in April, 1910, this same witness, Stevens, was trying to collect the back rents from him, and, in substance, tbe same conversation occurred, and tbe same threat was made by the appellant to this witness at that time. Tbe witness remarked to him, “John, you know .you wouldn’t do anything of that kind”; and be replied, “Tes; I would, so help me God.” Again, on June 17, 1910, this same witness was endeavoring to collect from him rents for the hotel which at that time were claimed by Stevens Bros, for tbe deceased to amount to $1,150. Tbe appellant disputed tbe amount of the claimed rents, claiming that it was about $200 less than $1,150, and tbe appellant then claimed that the deceased was attempting to rob him. Stevens Bros., failing to get tbe payment of any rent from him, appellant claiming that be could not pay it, placed tbe matter in tbe bands of an attorney, Mr. R. O. Walshe, for collection. Mr. Walshe thereupon saw tbe appellant, and presented tbe account to him, and told him be was there to collect it, or-to see what be could do about it. The appellant said be could not do anything then, and tbe attorney told him be would have to-pay tbe rent, and that be would also have-to give up possession of tbe premises, and that be would sue' him for tbe rent. Appellant thereupon made no reply, except “Well,” and turned and walked off. At this time before they separated, the appellant claimed that one item, tbe rent for tbe last month, $150, was not due, but tbe attorney told him he wanted to know if be could pay anything, and that the difference could be fixed up later. He made no reply to that, but just turned around and walked off. This-occurred about 3 o’clock p. m. June 17, 1910. Tbe attorney at once went to his dffi.ce, and’ prepared and gave to the constable for service a notice dated that day and addressed to-tbe appellant, wherein be notified him that the lease theretofore existing between E. Kohlberg and appellant, dated June 8, 1908,. for five years on the hotel property identified and described, “is this day hereby terminated for nonpayment of tbe rent, and you are further hereby notified to immediately vacate and deliver to me tbe possession of tbe above described premises; and you are further hereby notified not to remove any of the goods, wares, or furniture-from said premises, as I have and bold an. express landlord’s lien on the same to secure tbe payment of tbe rent due and to become due. E. Kohlberg, by R. G. Walshe, Atty. & Agent.” The constable served this-notice upon tbe appellant by banding him-tbe original thereof in writing at about 4:15 o’clock p. m. on June 17, 1910. At this time tbe appellant was in bis shirt sleeves. He claims that be showed tbe notice and read it to bis wife at once; that, after some conversation with her, be then left tbe hotel where he was when tbe notice was served upon him, and claims to have gone to tbe office of bis attorneys in El Paso, but, not finding them, he thereupon went down upon the street, and either in going down from the office of bis attorneys to tbe street or just after be got on tbe street be casually met a party who claimed to have been in Mexico, and this party delivered to him a double-action pistol belonging to tbe appellant, which be claimed to have loaned to another party some months before who was going to Mexico. The party then delivering, the pistol to him told him that tbe party to-whom be had loaned the pistol bad sent it to him by this party. Whether tbe jury believed tbe appellant’s statement and that of his witness, or whether or not be then and there got this pistol, or whether be armed himself with the pistol when be first left tbe hotel, we have no way of determining. Tbe circumstances would justify tbe jury in believing that he armed himself before he left the hotel. At any rate, he, just before 5 o’clock p. m. on June 17th, went to the store of the deceased. The deceased kept a cigar store. He manufactured cigars, and also sold them at wholesale and retail. In the deceased’s store at the time the appellant reached there only three persons were therein — the deceased and his grown son and the bookkeeper. The bookkeeper was behind the railing at work on his books, and did not notice and did not hear anything that passed between the appellant and the deceased at that time until the first shot was fired, When the appellant went into the store of the deceased, the deceased’s son, Walter Kohlberg, was therein standing a few feet from the entrance. The deceased was sitting in a chair in an alcove in the store reading a newspaper. Walter then stepped a few feet toward the entrance, and stood there. The appellant went in and sat down in a cool and deliberate way, showing no excitement at all, in a chair right near the deceased, and said to him, “I see you have done it.” Deceased said to him, “The matter is in the hands of Charlie Stevens and Walshe, and go and see them about it.” Appellant then complained of hard times and the difficulty in raising money. Deceased said to him again to go and see Stevens and Walshe; that the matter was out of his hands. Deceased then got up and started to walk toward his private office. He was in his shirt sleeves and had only the newspaper in his hand. In getting up out of the chair just before walking away the deceased said to appellant that the matter was in the hands of Stevens and Walshe, and that Leech had plenty of money to play the races, but not to pay the rent. As he walked away from Leech where they were both sitting towards his private office, his back was to appellant. Walter, the son, was only a few feet away from them. As deceased walked away, the appellant shot at him with a pistol, apparently missing him, and immediately fired again and struck him in the back near the spine, the ball passing through the body lodging in the skin in front of his breast. The bookkeeper immediately ran to the deceased, and asked who did it or what was the matter. Walter, the son, immediately replied, “John Leech did it! John Leech did it!” The bookkeeper caught the deceased as he was falling, and held his head in his lap. Doctors were gotten as soon as possible. Other parties came iñ, and the deceased died in a very few minutes afterwards. Immediately after the shooting appellant ran out of Kohlberg’s store, ran down the street a little distance, and then ran in behind some obstructions, and into an old vacant house. He remained there a short time, when a policeman hunting for him found him, to whom appellant surrendered without any resistance. Walter, the son, knew, as he expressed it, that eviction papers had been served on appellant, and he supposed that he came to see deceased about that. He gave particular attention to what was done and said, and heard and saw it all. As deceased was getting up out of the chair, he made the last remark to appellant about his having money to play the races, but not to pay the rent. There were no weapons of any kind in deceased’s store. What has been detailed as said between the parties at the time was all that was said by either and both of them. Walter said nothing and did nothing, except to pay particular attention to what was done and said at the time. Neither he nor his father made any character of demonstration or attack on appellant.

It is unnecessary for us to recite the testimony of appellant or of his witnesses other than to state that he claimed that, when the notice of the termination of the lease,' demand of possession of the premises, and to vacate, etc., was served on him, he communicated this to his wife when she informed him that deceased had for a long time wanted appellant’s wife to get rid of him, and indicated that he would take care of her, and, in effect, would maintain her as his mistress if she would get rid of appellant; that this incensed and outraged him, and that he at the time of the killing went to see deceased about this as well as about his rent, etc.; that the deceased and his son Walter attempted to assault him at the time, and that there were some indications that deceased in some way had some instrument or something in his hands or about his person indicating that he would use it in the assault upon appellant ; and that he shot and killed the deceased because of this in self-defense, and because of the insult to his wife. The jury, as it had the right, did not believe any of the appellant’s testimony or that of his witnesses on these subjects, but, instead, believed the testimony of the state’s witnesses and the state’s theory of the killing.

The court gave a full and correct charge on murder in the first and second degree, manslaughter, adequate cause, self-defense, reasonable doubt as to the cause generally, and reasonable doubt specially applicable to the various phases of murder in the first degree, murder in the second degree, manslaughter, and self-defense, all in favor of appellant. Every phase raised by the evidence in favor of appellant was properly and aptly submitted by the charge of the court in favor of appellant.

Appellant’s first bill of exceptions is to-the admission in evidence of the testimony of the witness A. ft. Coleman as to the threat by appellant against the deceased, which bill states that said Coleman was allowed to testify over his objections “as to the fact, but not the contents, of a conversation had with the ■ deceased in February, 1907, something like 314 years prior to the homicide out of which this case arose as to threats made by appellant against Kohlberg in February, 1907, over the objections of appellant on the ground that said conversation of said witness with said Leech at the time was incompetent and immaterial, the said threat too remote to be competent or material in this case; said witness testifying over defendant’s objections and exceptions as follows : ‘Mr. Stevens gave me a list of Mr. Kohlberg’s back rents, and I went down to' see Mr. Leech, and told him I was representing Mr. Stevens, and presented the bill. He objected to it, and we had considerable argument. The second trip down there I went and presented the bill, and told him that Mr. Kohlberg had ordered him to be vacated, to be put out if he didn’t pay the rent, and Leech said, “If he does, I will kill the damned Jew.” This was in the latter part of 1907, as I recollect it.’ ”

It is elementary, and has been many times decided by this court, that threats by the accused against the deceased are always admissible as proof of express malice and motive. Frizzell v. State, 30 Tex. App. 42, 16 S. W. 751; Howard v. State, 23 Tex. App. 265, 5 S. W. 231; 21 Cyc. 890. And when the threat, although remote, tends to explain the main and the immediate cause of the killing, an objection to it is more to the weight than to its admissibility. Dill v. State, 1 Tex. App. 278; Jones v. State, 4 Tex. App. 436; Rucker v. State, 7 Tex. App. 549; Russell v. State, 11 Tex. App. 289; 6 Ency. Ev. 631; 21 Oyc. 892. Such threats, even though made three years or longer prior to the killing for the same purpose and under the same circumstances, are clearly admissible. The jury is to pass upon the weight of such remote threats. Goodwin v. State, 96 Ind. 550; People v. Cronin, 34 Cal. 191; Everett v. Georgia, 62 Ga. 65; Redd v. State, 68 Ala. 492; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; State v. Ford, 3 Strob. (S. C.) 517; Peterson v. Toner, 80 Mich. 350, 45 N. W. 346; Territory v. Roberts, 9 Mont. 12, 22 Pac. 132; Babcock v. People, 13 Colo. 515, 22 Pac. 817. Many other authorities, both elementary and decisions by courts, might be cited, but we deem it unnecessary.

On this particular point it will be noted from the statement of the evidence above that from the state’s theory and evidence it was clearly established and believed by the jury that every time the deceased began to press the appellant for the payment of the back rent, and gave him, through deceased’s agents, notice of intended eviction, first in February or March, 1907, or, as stated by this bill, “in the latter part of 1907,” the appellant threatened that, if deceased did evict him, he would kill him. This threat was made first to Coleman as stated above, the second time to C. B. Stevens, deceased’s agent, in April, 1909; again to the same witness and agent Stevens in April, 1910, and, when actual proceedings preparatory to and beginning an eviction on June 17, 1910, were had, he literally carried out and put into execution each of these threats by in effect a cold-blooded assassination of the deceased for this particular cause. In our opinion this testimony by Coleman was clearly admissible.

Appellant’s next bills of exceptions are his complaint to the argument of Victor C. Moore, one of the prosecuting attorneys for the state, and the other W. D. Howe, the other prosecuting attorney. These bills complain that said Victor C. Moore in his argument for the state, in discussing the character of the defendant, in substance and effect said to the jury: “Good character amounts to nothing. Any one can prove a good character. Virgil Gallagher, of Dallas, Tex., who murdered his mother and burned her body, proved a good character.” To this argument counsel objected as being improper and calculated to prejudice the minds of the jury against the defendant, and as not being based on any material evidence in the case. As to the argument of said Howe, appellant in his bill states that said Howe “stated to the jury that it was a matter of common knowledge that the juries of the country were being criticised everywhere for not performing their duties, and for not convicting criminals, and that he hoped such criticism would not be made concerning the actions of this jury after this case would be disposed of.” This was objected to by appellant as improper, and highly prejudicial to the rights of the appellant. Both of these bills, as claimed by the appellant, were contested by the state. The court in allowing them made this explanation: “That, as soon as the court was able to detect the trend of counsel’s remarks, the court, of his own motion, before objection, in a loud tone of indignation, interrupted the speaker, preventing him from completing the sentence, and that the said Victor O. Moore, as soon as he could realize that the court or counsel for defendant was interposing an objection, desisted promptly; and that as to the mention of Virgil Gallagher the court immediately stated in an angry tone to the jury and to counsel that the conduct of this speaker was a flagrant breach of duty and highly censurable, admonished and warned offending counsel not to repeat his offense, instructed and exhorted the jury not to consider what the speaker had said as to what may have occurred on other trials, that they must try this case on the evidence, and the testimony of witnesses sworn.in the case, and that every juror as well as counsel, knew that the state could not attack defendant’s evidence of reputation by the remarks of counsel as to other trials or other defendants, which, under their oaths as jurors, they must not consider. And that after the mention by the said Victor O. Moore of the instance of Virgil Gallagher, as set out in defendant’s bill of exception No. 2, and before the said Moore had made further sense or enunciated anything intelligible, he was stopped by the court, who sternly refused him permission to apologize or explain or allude to the matter in any manner further, as is all shown in paragraph third of the state’s answer to defendant’s motion for new trial hereinbefore filed, and the supporting affidavits thereto, and which statement and affidavits in behalf of the state were not controverted by the defendant, and which said statements on oath are known to the court to be true, and that the court, before charging the jury, suggested to counsel for defendant that, unless they preferred the omission thereof, the court would in his written charge to the jury give an instruction on this and each and every irregularity committed by counsel for the state in their argument for the state against defendant, and would have done so but for the fact that counsel for defendant stated the defense did not desire such instructions.” The controverting affidavits referred to by the court above show that before Victor C. Moore had concluded the sentence in his argument complained of, and slightly before the appellant’s attorneys began their objections, the court of its own motion in a loud tone of indignation interrupted the speaker, prevented him from completing the sentence of saying sufficient to make the incident alluded to intelligible, and that counsel for both sides and the court were for the instant B speaking together, thus drowning his enunciations so that the jury could not understand anything that was being said, and that counsel for the state desisted promptly without completing the sentence.

As to the bill with reference to the argument of Mr. Howe, the court qualified that as follows: “The district attorney upon objection of defendant and his attorney was promptly stopped in his argument, and the court thereupon and instantly stated to and in the hearing of the jury in open court: ‘Mr. Howe (district attorney), that argument is improper, and should not have been made by you, and, gentlemen of the jury, you are instructed to 'disregard that argument. It was improper for any purpose, and the court charges you to exclude that argument from your consideration for any purpose whatever, your duty is to consider only the law and evidence, and under your oath you cannot consider public sentiment.’ ”

Ordinarily where improper remarks have been made by a prosecuting officer in argument to the jury, there is no ground for reversal unless the defendant objects, takes a bill of exception, and asks a special charge in writing to disregard the remarks and the charge is refused. Carver v. State, 36 Tex. Cr. R. 552, 38 S. W. 183; Monticue v. State, 40 Tex. Cr. R. 531, 51 S. W. 236; Armstrong v. State, 34 Tex. Cr. R. 248, 30 S. W. 235; King v. State, 32 Tex. Cr. R. 463, 24 S. W. 514; Dudley v. State, 40 Tex. Cr. R. 35, 48 S. W. 179; Byrd v. State, 39 Tex. Cr. R. 609, 47 S. W. 721; Lancaster v. State, 36 Tex. Cr. R. 16, 35 S. W. 165; Levine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969; Renfro v. State, 42 Tex. Cr. R. 407, 56 S. W. 1013.

Again, if improper remarks are by the court withdrawn and the jury instructed to disregard them, ordinarily the injury, if any, has been cured. See the cases last above cited and Love v. State, 35 Tex. Cr. R. 27, 29 S. W. 790; Miller v. State, 27 Tex. App. 63, 10 S. W. 445. Many other cases might be cited on both of these propositions, but we deem it unnecessary. In this particular matter the court shows By his qualification of the bills that he offered to appellant’s attorneys to give the jury a written charge in addition to what occurred at the time the remarks were made and objections urged, if they desired it, but that they stated they did not desire such charge. We take it that this shows clearly that in the opinion of appellant’s attorneys at that time the injury by these remarks, if any, had already been fully cured by what had been done and said by the parties and the court at the time. It is our opinion that no reversible error, even if any error at all,' was committed.

The next oBjec'tion urged by appellant is to the eighth subdivision of the main charge of the court. That charge is as follows: “To warrant a conviction of murder in the first degree, the jury must be satisfied by the evidence, beyond a reasonable doubt, that the defendant, before the act, deliberately formed the design with a calm and sedate mind to kill deceased, that he selected and used the wéapon or instrument reasonably sufficient to accomplish the death by the mode and manner of' its use, and that the killing was unlawful. The act must not result from a mere sudden, rash and immediate design, springing from an inconsiderate impulse, passion or excitement, however unjustifiable and unwarrantable it may be.” The only objection made thereto was that this charge was erroneous because it did not fully and correctly state the law as to the character and design formed to kill; that is, that same must be formed from malice aforethought, and was too indefinite to be fully understood by the jury. This objection is too general.

Besides this, it is elementary that the charge of the court is to be taken as a whole, and, even if some slight error is made in any particular part, unless the whole shows material error, it is no cause for reversal. We have carefully examined the whole charge of .the'court, and especially on this subject.

Even admitting that this subdivision 8 of. the charge of the court is susceptible to criticism, which we do not concede, taking it as a whole, there is no question but that no error resulting in injury to the appellant by this charge occurred.

Complaint in a general way is made by the •appellant that the court erred in other separate and distinct paragraphs of the charge, and also erred in refusing to give several 'special .charges requested by appellant. ■ We have carefully examined, all of these matters, and what we have said above about the complaint as to paragraph No. 8 of the court’s charge equally applies to all the others. Taken as a whole, the charge of the court in every way authorized by the law, submitted every issue, raised by the evidence in this case, properly to the jury. There is no such error, if any at all, in any of these matters complained of that could or would authorize us to reverse this case.

Even conceding that separate provisions of the charge might be subject to some criticism, article 723, O. C. P., as amended by Acts 25th Leg. c. 21, prohibits this court from reversing the judgment in this case, unless such error was calculated to injure the rights of the defendant. In our opinion no such injury has occurred.

The judgment is therefore in all things affirmed.  