
    CONNOR v. STATE.
    (No. 9592.)
    Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    !, Criminal law <®==>720(9)— Argument of state’s counsel held not error, In view of explanation thereof.
    In prosecution for murder, argument of state’s counsel that only eyewitness testified that defendant lolled deceased, whereas defense witnesses claimed that another did so, and that such other cannot be convicted, and that state’s counsel intends to dismiss his case, helA not error, in view of further argument explaining his position and fact that no injury is shown to have resulted from argument.
    2. Criminal law t§=>958(4)— Affidavit of one jointly indicted for offense that he and not defendant killed deceased not available to defendant.
    Affidavit of one jointly indicted with defendant for murder, fifed after conviction of defendant, and stating that he, and not defendant, killed deceased, is not available to defendant, seeking new trial.
    Commissioners’ Decision. '
    ‘ Appeal from District Court, Kaufman n'ounty; Joel R. Bond, Judge.
    Hernon Connor was convicted of murder,, and he appeals.
    Affirmed.
    G. Q. Youngblood, of Dallas, and G. O. Crisp, of Kaufman, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is murder, and the punishment is five years in the penitentiary. The record contains no special charges and no objections to the charge of the court. It contains oniy two bills of exceptions — one complaining of improper argument of state’s counsel, and the other complaining of the action of the court in overruling the appellant’s second assignment in the motion for a new trial, same being to the effect that Brooksie Connor, and not the appellant, Hernon Con-nor, was the party who killed the deceased.

The argument complained of was as follows:

“You will convict men for selling whisky and for making whisky, and turn them aloose for murder. Murder is the easiest case in the world to beat. In this case life has been snuffed out. Somebody is guilty of murder. Dave Roberson says that Hernon Connor fired the shot that killed Sing Roberson. The defendant and his witnesses say that Brooksie Connor fired the shot. I tell you that Brooksie Con-nor will never be tried for this murder. He cannot be convicted and I intend to dismiss his case.”

The court qualifies this bill by stating that in connection with the argument the county 'attorney explained to the jury why Brooksie Connor could and should not be convicted, and that his case would be dismissed, in the following language:

“Brooksie Connor could not and should not be convicted, because the only eyewitness, Dave Roberson, says that the defendant, Hernon Connor, did the shooting that killed deceased; and, if his testimony is to be believed, Brooksie Connor did not do the killing; and, on the other hand, the defendant and his witness say Brooksie Connor did the shooting, and it was done in self-defense, and, if their testimony is to be believed, Brooksie Connor would not be guilty, because he acted in self-defense. How could the state hope to convict Brooksie Con-nor, contending that the defendant is the guilty person, and I will dismiss his case, and it should be.”

As explained by the trial judge, we are disposed to think the argument wa’s entirely legitimate. Again we hold that the testimony from the standpoint of the state, at least, shows a wanton killing, done without excuse or justification, and the jury gave the appellant the lowest penalty known to the law for the offense of murder. This being true, we hold that the bill shows no error, for the additional reason that injury is not shown to have resulted from the argument.

Bill of exceptions No. 2 complains be>cause the court did not grant appellant a new trial, in view of the fact that Brooksie Con-nor, after the trial was over, filed an affidavit stating that he, and not' the appellant, killed the deceased. The court’s ruling in this respect was correct. The codefendant, Brooksie Connor, being jointly indicted with the appellant, his affidavit is not available to appellant. The state’s testimony is. positive to the effect that the appellant fired the shot that killeq the deceased, and, while this was controverted, yet the jury saw fit to believe the state’s testimony, and we will not disturb their verdict.

Finding no error in the record, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the court of Criminal Appeals and approved by the court. 
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