
    STEWART v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    1. Criminal Law (§ 1091) — 1Trial—Improp-er Argument of District Attorney — Review — Bill of Exceptions.
    A bill of exceptions complaining of the closing argument of the district attorney must disclose the circumstances under which the objectionable argument was made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943 ; Dec. Dig. § 1091.]
    2. Criminal Law (§ 728) — Trial—Improper Argument — Objections—Review.
    Objections to the closing argument of the district attorney will not be considered on appeal, where no written charge was requested requiring the jury to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    3. Homicide (§ 309) — Evidence — Instructions.
    Where the facts created in the mind of the trial judge a doubt as to the necessity of a charge on manslaughter on a trial for murder, the doubt must be resolved in accused’s favor and a charge on manslaughter given.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    4. Homicide (§ 340) — Evidence — Instruct tions. .
    The error in submitting the issue of manslaughter, while the evidence only shows accused’s guilt of murder in the second degree or self-defense relied on by him, is not prejudicial to accused convicted of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    5. Homicide (§ 236) — Evidence — Deadly Weapon — Question for Jury.
    Evidence held to authorize a finding that a knife with which accused killed decedent was a deadly weapon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 495-499; Dec. Dig. § 236.]
    6. Homicide (§ 340) — Manslaughter — Instructions — Objections.
    An instruction on manslaughter which directs an acquittal on the jury, believing that the mind of accused was agitated by anger, rage, resentment, or terror, regardless of what caused or produced the mental condition, is more favorable to accused than she is entitled to, and she cannot complain thereof. -
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    7. Homicide (§ 340) — Self-Defense — Instructions.
    An instruction on self-defense, that the jury must acquit accused if she cut decedent under such circumstances as would authorize her to do so in self-defense, or if decedent first cut her, is more favorable than accused is entitled to, and she cannot complain thereof.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    Appeal from Criminal District Court, Harris County; Sam’l J. Styles, Special Judge.
    Mary Stewart was convicted of manslaughter, and she appeals.
    Affirmed.
    Green & Boyd, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Upon a trial for murder appellant was convicted of manslaughter and her penalty fixed at the lowest prescribed by law.

Appellant has but one bill of exception. It is to this language used by the district attorney in his closing argument to the jury: “The defendant seems to have a local reputation of being a cutter.” The circumstances under which this was said the bill in no way discloses, nor does it disclose anything else in the case so as to require this court to pass upon the bill; but in any event it presents no error. No written charge was requested requiring the jury not to consider it. House v. State, 19 Tex. App. 239; Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544; Bass v. State, 16 Tex. App. 69; Clayton v. State, 149 S. W. 122, 123, and cases there cited. If we could look to the record it would show that the district attorney probably had the right to make use of such language in his argument, for the record would show that appellant killed the deceased by stabbing and cutting her, and that some time prior to that she had cut her.

It would serve no useful purpose to recite the evidence in this case. We have carefully considered it, and it is amply sufficient to sustain the verdict of murder in the second degree, as well as that of manslaughter. The evidence amply shows the corpus delicti. The uncontroverted proof shows that appellant stabbed deceased in a vital part of her body. As one witness expresses it, with “a large pocket knife, awful large,” and cut and slashed her several times therewith, from which she almost immediately fell in the street and died before an ambulance could reach her to take her to a hospital. There is no intimation that she died or was killed in any other way except at the hands of appellant. The evidence clearly shows, as stated above, that the jury could find that the knife with which she killed deceased was a deadly weapon. The knife with which the killing was done, it seems, was not produced and introduced in evidence, though the one with which deceased, in the fight, cut appellant was produced and introduced, and all the evidence in the case shows that it was a large spring-back knife, and the witnesses for the state showed that the knife with which appellant killed deceased was the same kind of knife.

Appellant complains that the evidence did not raise manslaughter, and the court erred in charging thereon at all. His contention in effect is that the evidence showed, not manslaughter, but, from the state’s standpoint, murder in the second degree only. The court charged on murder in the second degree —the state waiving murder in the first— manslaughter, and self-defense. Appellant’s only defense was self-defense. We are inclined to believe from the evidence that manslaughter was raised and should have been charged by the court. As stated by Judge White in section 801a, subdivision 2, p. 520, of his O. G. P., if the facts proved create a doubt in the mind of the trial judge as to the necessity of a charge on manslaughter in a trial for murder, the doubt should be resolved in favor of the accused and such charge be given. He cites a large number of cases in support of this proposition. Doubtless, the trial court in this instance acted upon this proposition, and we are not prepared to say that he was not justified in doing so. However, if, as contended by appellant, the evidence showed, from the state’s standpoint, murder in the second degree and not manslaughter, she is in no position to complain, because the court submitting manslaughter was in her favor and not against her. This court in a great many cases has held, as stated by Judge White in section 807 of his Ann. G. G. P.: “Though there are decisions of this court holding that an erroneous charge which inures to the benefit of the accused, if excepted to, constitutes reversible error, a proper construction of articles” 735 to 743, inclusive, “does not warrant such a conclusion where the error excepted to is harmless or beneficial to the defendant.” And he cites a large number of cases to that effect.

We have in many recent cases reaffirmed and reiterated this principle. Where the evidence “establishes murder on express malice and murder in the first degree, this does not constitute such variance between the allegations and proof as would entitle defendant to an acquittal; but he may legally be convicted upon such proof of murder in the second degree.” Woodward v. State, 54 Tex. Cr. R. 88, 111 S. W. 942. Again, “it was not error on the part of the court to instruct the jury that although the evidence might show appellant guilty of murder upon express malice, yet that would constitute no reason for his acquittal; that they could on such testimony find him guilty of murder in the second degree.” Moore v. State, 52 Tex. Cr. R. 342, 107 S. W. 543. So we say in this case, even if the evidence from the state’s standpoint showed murder in the second degree, it would sustain a conviction for manslaughter.

The court, while not copying the statute-literally defining manslaughter, in his charge defining it he did so in substance and in ef-feet as applicable to this case. Tbe charge also accurately defined adequate cause as prescribed by the statute. There is no error pointed out against this charge.

The court also correctly charged what it took to constitute a deadly weapon as has many times been approved by this court. White’s P. O. § 1298. And as stated above, the evidence was sufficient to establish that the knife with which appellant killed deceased was a deadly weapon, or authorized the jury to so find.

In submitting manslaughter to the jury for a finding the court charged:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant, Mary Stewart, in the county of Harris and state of Texas, on or about the 21st day of June, 1912, did, with a knife, the same being then and there a ‘deadly weapon’, as that term is herein defined, unlawfully cut and thereby kill the said Ella Jones, and you further believe from all the evidence that at the time of such killing, if any, the mind of the defendant was agitated by either of the emotions of the mind known as anger, rage, resentment, or terror, rendering it incapable of cool reflection, then you will find the defendant guilty of manslaughter, and assess her punishment at confinement in the penitentiary for a term not less than two nor more than five years. If you believe beyond a reasonable doubt that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt as to whether she is guilty of murder in the second degree or manslaughter, you should not find her guilty of a higher grade of offense than manslaughter.”

Appellant’s complaint of this charge is that it instructs the jury that if they believe the mind of the defendant was agitated by anger, rage, resentment, or terror, regardless of what caused or produced the condition, etc. Even if this be true, the charge in that respect is more favorable to appellant than the (aw authorized, and being so, she cannot justly complain thereof. There is no intimation in this charge as contended by appellant that said instruction assumes that she is guilty of manslaughter. This charge, as a whole, is as favorable, if not more so, to appellant than the facts and law authorize.

The only other complaint by appellant is to the charge of the court on self-defense. The court charged: “If you believe from the evidence that the defendant, Mhry Stewart, did, with a knife, cut and thereby kill the said Ella Jones, and you further believe from the evidence that at the time of such cutting, if any, the said Ella Jones did make a demonstration that induced the defendant to believe, viewed by you from the defendant’s standpoint at the time, that she, the said Ella Jones, was about to attack her and inflict death or serious bodily injury upon her, or if you believe from the evidence that the said Ella Jones did first cut the defendant, then you are charged that the defendant had the right to cut the said Ella Jones, and continue to cut her as long as the danger, if any, or apparent danger, if any, existed, and she should not be required to retreat in order to avoid the necessity or apparent necessity of cutting the said Ella Jones; and if you so find you will acquit the defendant.” Appellant’s complaint in substance of this charge is that it authorized her acquittal if she cut deceased, and does not authorize her acquittal if she killed her by cutting her.

What we have said about the other charges above is equally applicable to this. The charge is really more favorable to appellant than authorized by the law and evidence, and it, in effect, as is shown, tells the jury to acquit her if appellant cut deceased under such circumstances as would authorize her to do so in self-defense, or if deceased first cut her. We see no ground of complaint whatever by appellant on this score.

There being no reversible error, the judgment is affirmed.  