
    BORDERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Juey (§ 107) — Competency of Jubobs — Conscientious Scruples.
    In a homicide case, where the state depended upon circumstantial evidence, the court properly sustained the state’s challenge to jurors who had conscientious scruples against inflicting the death penalty upon such evidence.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 486-488, 495; Dec. Dig. § 107.]
    2. Criminal Law (§ 715) — Trial — Argument of Counsel.
    Where, in a homicide ease, the defense was that deceased killed herself, it was not reversible error for the prosecuting attorney, in his argument, to hand the pistol to a juror and ask him if it were possible for deceased to have shot herself in the place where she was shot, although such practice should not be indulged in.
    [Ed. Not'e. — For other cases, see Criminal Law, Cent. Dig. § 1666; Dec. Dig. § 715.]
    3. Ceiminal Law (§ 728) — Argument of PROSECUTING- ATTORNEY — ABUSIVE LANGUAGE— Evidence Justifying.
    While a prosecuting attorney ought nevér to use epithets, yet it was not error for him, in his argument in a homicide case, to point his finger at accused and call him a “coldblooded brute” and “an animal,” as the record showed the murder to have been very brutal, and there was no requested charge on the point.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    4. Criminal Law (§ 789) — Trial—Instructions.
    Where the court, in a homicide case, after defining the different degrees of homicide, required the jury to find the facts, constituting each degree, to exist beyond a reasonable doubt, and to give the defendant the benefit of a reasonable doubt between the different degrees, it was not error to fail to charge the negative of the facts constituting each degree.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Bud Borders was convicted of murder in the first degree, and he appeals.
    Affirmed.
    Farrar & McRae, of Waxahachie, 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
    
   HARPER, J.

Appellant was prosecuted and convicted of murder in, the first degree, and his punishment assessed at imprisonment in the penitentiary for life. '

In the first bill of exceptions appellant complains that the court permitted the county attorney to ask the jurymen on their examination the following question: “Have you any conscientious scruples against inflicting the death penalty as a punishment for crime, where the state depends upon circumstantial testimony for a conviction?” And when the jurymen answered they had, the court sustained the challenge of the state to such jurors. As it is not shown that any juror objectionable to defendant served on the jury, we might pass the question in this way; but under our decisions, beginning with Burrell v. State, 18 Tex. 713, when the Supreme Court had jurisdiction in criminal matters, on down to this date, it has been held that such question was a proper one, in cases where the state depended on circumstantial evidence to sustain a conviction, and the action of the court in sustaining the challenge was also proper. Shafer v. State, 7 Tex. App. 239; Clanton v. State, 13 Tex. App. 139; Little v. State, 39 Tex. Cr. R. 654, 47 S. W. 984.

The next bill complains that the prosecuting attorney took the pistol, which had been introduced in evidence, and which was the pistol with which the woman was killed, and handed it to one of the jurymen, and said, ‘‘Try and see if Belle Borders could have inflicted the wound which killed her, in the place it was located.” The length and size of the pistol are shown by the record; the evidence locates the wound just below the nipple in the breast, and its point of exit in the back; and as it was permissible for the prosecuting officer to argue and demonstrate that it was impossible for one to inflict the wound on one’s self, instead of handling the pistol himself, to hand it to the juror and ask him to see if he could shoot himseif at the point where the wound was shown to have beeen inflicted on the woman would present no reversible error under this record; but this practice should not be indulged in.

The only other bill in the record complains that the prosecuting officer in his opening address pointed his finger at defendant and called him “a cold-blooded brute,” and called him an animal. While the prosecuting officer ought never to use epithets of any character, yet the killing, as shown by the evidence in this case, was done in rather a deliberate and brutal manner, and under such circumstances the language used would not present reversible error, and especially is this the case when no special charge was requested in regard thereto.

No special charges were requested, but there are several complaints in the motion for a new trial of the charges given. The first ground is that the court, in his charge on murder in the first degree, failed to charge “the negative of the facts constituting said degree.” The same complaint is made as to the court’s charge on murder in the second degree, and the court’s charge on manslaughter. The court in his charge defined murder in the first and second degree in terms frequently approved by this court, and required the jury to find affirmatively those facts to exist beyond a reasonable doubt before they would be authorized to convict, and then defined manslaughter as applicable to the facts of this case, and required the jury to find beyond a reasonable doubt those facts existed before they would be authorized to convict. He then instructed the jury: “If from the evidence you are satisfied, beyond a reasonable doubt, that the defendant is guilty of murder, but have a reasonable doubt whether it was committed upon express or implied malice, then you must give the defendant the benefit of such doubt, and not find him guilty of a higher grade than murder in the second degree; or, if from the evidence you believe, beyond a reasonable doubt, that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt whether the offense is murder of the second degree or manslaughter, then you must give the defendant the benefit of the doubt, and in such case, if you find him guilty, it could not be of a higher grade of offense than manslaughter.” In addition to this he gave the usual charge on presumption of innocence and reasonable doubt. Having instructed this jury to give the benefit of a reasonable doubt as between the degrees of unlawful homicide, it was unnecessary to so instruct them in the paragraphs submitting the different degrees.

The court did instruct the jury that they must find the exculpatory statements untrue; or they would acquit him. Defendant, as a witness, testified that deceased killed herself, and in the statement made to the county attorney he made the same statement The court instructed the jury: “If you believe that Belle Borders killed herself, or if you have a reasonable doubt thereof, you will acquit the defendant.” If they found that deceased did not kill herself, this necessarily included a finding that his exculpatory statement was not true.

The charge on circumstantial evidence does in terms instruct the jury that they must believe that defendant, and no other person, killed deceased. This charge is in language frequently approved by this court, and concludes : “Unless the evidence in this case has established to your satisfaction beyond a reasonable doubt, and to a moral certainty, that the defendant killed Belle Borders, and excludes every other reasonable hypothesis except that he Mlled her, then you will find the defendant not guilty.”

The evidence amply supports the verdict, and the judgment is affirmed.  