
    ARDRY v. STATE.
    (No. 6337.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.
    Rehearing Denied Oct. 12, 1921.)
    (. Criminal law <@=>726, 728(5) — Retaliatory remarks of prosecutor held not error in absence of special charge requesting withdrawal.
    Improper remarks of the prosecutor that defendant’s counsel went out of the record and told the jury what a notorious character prosecuting witness had been, but did not tell them about defendant’s family, two of whom had been to the penitentiary, were not error, in face of the provocation, and in the absence of a special charge requesting withdrawal, though the proper practice would have been to object to opposing counsel’s improper argument instead of resorting to like infringement of the rule.
    On Motion for Rehearing.
    2. Criminal law <@=>1038(3), 1056(2), 1186(4) —Omission to submit issue not reversible error in absence of exceptions or requested instructions.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 743, prohibiting reversal except for error injurious to defendant’s rights and requiring that all objections to charges and refusal or modification of special charges be made at the trial, where defendant, charged with assault with intent to murder, took no exceptions to and requested no special instructions to supply an omission of the court to submit the issue whether the assault was made to prevent the injured party from removing benches from a church of which defendant was custodian, the Court of Criminal Appeals cannot grant relief; no fundamental error having been committed.
    Appeal from District Court, San Augustine County; V. H. Stark, Judge.
    Bill Ardry was convicted of assault with intent to murder, and he appeals.
    Affirmed. Motion for rehearing overruled.
    H. B. Short, of Center, and E. T. Anderson, of San Augustine, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for assault with intent to murder. Punishment assessed at two years in penitentiary.

Appellant was charged with assaulting one Butler Davis. All parties were negroes. It is not necessary to set out the evidence. It is sufficient to sustain the finding of the jury. Immediately after the assault on Butler Davis (who was an old negro man), several of his sons seem to have severely “manhandled” appellant in resentment of the attack on their father. The trouble arose over a controversy as to whether dinner should be served in church or out on the church grounds.

Only (me hill of exceptions appear in the record.

While the prosecuting attorney was making his closing argument, he said:

“Gentlemen of the jury, Mr. McLaurin got out of the record and told you that he had been knowing the prosecuting witness, Butler Davis, for a long time, and what a notorious character he had been, but he did not take the stand and testify. Mr. McLaurin didn’t tell you about the Ardry negroes, and that two of them had been to the penitentiary.”

When objection was made, the court admonished the district attorney to stay in the record. It does not appear any further objectionable language was indulged in, and no charge was requested -directing the jury to disregard the argument.

It is to be regretted that so many cases before this court disclose the fact that attorneys on both sides in many instances are seized with an uncontrollable desire to discuss matters dehors the record. The prosecuting attorney seems to have been provoked to his breach of legitimate argument by similar action on the part of opposing counsel. Of course, the proper practice would have been to have objected to appellant’s counsel making the improper argument in the first instance, and not have resorted, to like infringement of the rules in reply.

There was no intimation that appellant had been to the penitentiary. In the absence of a special charge requesting withdrawal of the improper statement, we do not feel, in face of the provocation, to hold the remarks reversible error. Branch’s Crim. Law. p. 32, § 62, collection of authorities; Norris v. State, 32 Tex. Cr. R. 172, 22 S. W. 592.

The judgment is affirmed.

On Motion for Rehearing.

Appellant urges that the issue was raised that any assault made by appellant was to prevent the injured party from removing benches from the church, of which appellant was custodian, and that fundamental error was committed when the trial judge omitted the submission of this issue to the jury. We do not discuss the question as to whether the issue claimed was fairly raised by the evidence. If it be conceded that the issue was raised and omitted .from the court’s charge, in the absence of exceptions because of such omission, or special requested instructions to supply same, made or requested at a time when the court might have corrected the alleged omission, this court is without authority to grant relief. The latter clause of article 743, C. C. P., reads:

“All objections to the charge, and on account of refusal or modification of special charges shall be made at the time of the trial.”

Appellant’s contention would have been not without merit prior to the amendment of 1897; but the decisions of this court construing that part of the article just quoted, and found annotated in volume 2, Vernon’s Crim. Statutes, on page 519, are against appellant’s position. Hence we are constrained to hold no such fundamental error was committed as to require a reversal of the case.

The motion for rehearing is therefore overruled. 
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