
    WOLF v. STATE.
    (No. 7483.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.
    Rehearing Denied June 29, 1923.)
    1. Homicide <©=>295(2) — Under the evidence held that instruction on-manslaughter as to provocation by some person other than deceased was not undue limitation of defendant’s rights.
    Under the evidence, including that as to conversation betweemi defendant and young lady, whom deceased had accompanied to a dance, where the killing occurred, as to conversation about some one telling lies to her concerning defendant, and evidence of prior ill will by defendant, held, that instruction giving part of the statutory definition of sudden passion in Pen. Code 1911, art. 1129, that it is not enough that the mind is merely agitated by passion arising from some other provocation, or a provocation given by some person other than deceased, was not an undue limitation of defendant’s rights not suggested by evidence.
    2. Homicide <©=o300(7) — Instruction as to real and apparent danger held sufficient application of law to defendant’s theory.
    Where defendant did not claim that deceased tried to take his life or maim or inflict serious bodily injury upon him, and did not describe the weapon with which he claimed deceased had struck him, but claimed that deceased had taken some weapon from his pocket which he did not see, and no weapon of any kind was found on deceased, an instruction that if defendant killed deceased to prevent deceased from murdering him or inflicting serious bodily injury, providing it reasonably appeared to him by the acts and words of deceased that it was his purpose to murder defendant or inflict serious injuries on him, viewed from defendant’s standpoint, he was justified in killing him, and providing the killing took place while deceased was in the act of committing such murder or inflicting such, injury on defendant, or after some act done by deceased showing evident intent to murder defendant or inflict serious bodily injury to him, and if it reasonably appeared to defendant that danger existed, he had the same right to defend himself against such apparent danger to the same extent that he would have were the danger real, and this though there was no real danger, held a sufficient application of the law to defendant’s theory.
    3. Homicide <©=290 — Instruction as to deadly weapon held not erroneous.
    Instruction as to deadly weapon held not erroneous.
    On Motion for Rehearing.
    4. Homicide <®=»I45 — Statute as to presumption from nature of weapon, used construed.
    Pen. Code 1911, art. 1147, providing that the instrument or means by which homicide is committed is to be considered in judging intent, and if the instrument be one not likely to produce death it is not presumed that death was designed, unless from the manner in which it was used, is a limitation on article 51, providing that intention to commit an offense is presumed whenever the means used is such as would ordinarily result in commission of the act, so that where the instrument used is not likely -to produce death the .presumption referred to in article 51 does not obtain, unless from the manner of use of such weapon intention to kill appears.
    5. Homicide <©=>286(1) — Instructions as to presumption and use of weapon held sufficient.
    Instructions giving Pen. Code 1911, art. 1147, and giving defendant’s requested instruction that the law requires intention to kill, and if defendant did not, when he cut or stabbedi, deceased with a knife, intend to kill deceaseds he should be acquitted of any grade of homicide, and the jury should inquire only whether or not he was guilty of assault and battery, was favorable to defendant and was sufficient as to the presumption from use of weapon.
    6. Criminal law <©=>726 — Argument of counsel appealing to sentiment of relatives of deceased held not erroneous, in view of argument by defendant’s counsel as to the feelings of defendant’s relatives.
    In a prosecution for homicide, arguments of the state’s attorney appealing to the jury to uphold the law and the effect which might follow adverse decision and to the sentiment and feeling of decedent’s relatives held not error, in view of the-arguments used by the counsel for defendant, of similar character, as to the . relatives of defendant.
    Appeal from District Court, Coryell County; J. R. McClellan, Judge.
    Jack Wolf, Jr., was convicted of murder, and he appeals.
    Affirmed.
    H. E. Bell and McClellan &, Cross, all of Gatesville, for appellant.
    Watt It. Saunders, Co. Atty., of Gatesville, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Coryell county of murder, and his punishment fixed at 20 years in the penitentiary.

Appellant’s first contention'in his brief is of the court’s charge on manslaughter wherein the jury were told:

“It is not enough that the mind is merely agitated by passion arising from some other provocation, or a provocation given by some person other than deceased.”

This is part of the statutory definition of sudden passion as appears in article 1129 of our Penal Code in connection with the law of manslaughter, and same was given in the instant charge as part of such definition. Appellant’s objection is that this was a limitation upon his rights not suggested by any evidence, in the ease. The killing took place at a dance. Deceased went to this dance with Miss Bird. While at the dance and just prior to the killing appellant had a talk with Miss Bird. She testified that he tried to make a date with her and that she refused, and he said to her that some one had told her lies on him. This she denied to him. She also said that at the time of this conversation appellant seemed mad, not at the start but later he seemed mad. There is also in testimony evidence reflecting prior ill will on the part of the appellant toward deceased and threats to do the deceased harm. This much of the evidence is here stated because it makes plain that the law of this • case differs, from that of the cases cited bv appellant in support of this proposition. In Harrison v. State, 47 Tex. Cr. R. 393, 83 S. W. 699 cited, there was no charge given on manslaughter; hence no applicability. In Fuller v. State, 54 Tex. Cr. R. 454, 113 S. W. 541, there was no evidence suggesting that the anger' or rage of the accused was caused by provocation brought about or arising from the conduct of another, or from something said or done by such other party. In Gallagher v. State, 55 Tex. Cr. R. 50, 115 S. W. 46, two strangers met in a road, quarreled over who had the right of way, and one killed the other. It was held, even in such case, that a charge similar to the one under discussion would not be reversible errqr, but it was suggested that upon another trial it be omitted as not finding support in the testimony. In Craft v. State, 57 Tex. Cr. R. 257, 122 S. W. 547, it appeared that deceased caught the horse of appellant by the bridle and jerked it and caused it to rear, throwing appellant against the horn of the saddle and inflicting -pain upon him. He asked a special charge applying the law of manslaughter, which we held wrongfully refused. There wa's not a word of testimony supporting the proposition of provocation by another or anger caused by some one other than deceased. Announcing its conclusion that a reversal was necessary for other reasons, this court said that, if the facts were the same on another trial, a charge similar to that here complained of should not be given. McDowell v. State, 60 Tex. Cr. R. 577, 151 S. W. 1049, was reversed for other errors; this court stating in its opinion that it was a fact undisputed in the testimony that the difficulty came up all in a moment, and that there was no ill will or grudge between the parties prior to the incidents of the fatal difficulty itself. We are unable to apply anything found in any of said authorities as supporting the contention made in the instant case under the facts stated by us above. It appears clear, from the state’s testimony, that appellant was angered by the refusal of Miss Bird to make a date with him and by her denial of the fact that deceased had told her things on him.' We find no error in the charge complained of under the facts.

In paragraph 13 of the charge in connection with the law of self-defense, the court gave to the jury the language of article 1106 of our Penal Code. No exception was taken to said paragraph, but in the tenth exception to the court’s charge we find the following:

“Defendant further objects to said paragraph 14 and to the whole charge because it omits to apply the law concerning the use of a deadly weapon by deceased to the facts of the case.”

Paragraph 14 of the court’s charge gave the jury an application of the law to the facts both as to real and apparent danger, and was as follows:

“If, therefore, the defendant killed the deceased, he was justified in doing so, if he did do so, to prevent the deceased from murdering him, or from inflicting serious bodily injury upon him, the defendant, provided it reasonably appeared to the defendant, by the acts, or by the words coupled with the acts, of the deceased, that it was the purpose and intention of the deceased to murder the defendant, or to inflict serious bodily injury upon him, the defendant, viewed from the defendant’s standpoint, and provided the killing took place while the deceased was in the act of committing such murder, or of inflicting such injury on the defendant, or after some act done by the deceased showing evidently an intent to murder the defendant, or to inflict serious bodily injury to him, the defendant, viewed from the standpoint of the defendant. And if it reasonably appeared to the defendant from the circumstances of the case that danger existed, he had the same right to defend himself against such apparent danger and to the same extent that he would have were the danger real. And this, even though there was no real danger. And if you have a reasonable doubt as to whether or not the killing took place under such circumstances, it will be your duty to give the defendant the benefit of such doubt and acquit him.”

This we deem a sufficient application of the law to the defensive theories finding support in the testimony in this ease. Appellant did not claim that deceased tried to take his his life, or to maim him, or inflict serious bodily injury upon him, nor did he try to describe any weapon with which he claimed deceased had struck him prior to the fatal cutting. On direct examination appellant testified that immediately before he cut deceased the latter went into his pocket and got out something and hit him; that he thought it was brass knucks or a knife. On cross-examination he admitted that he did not know what it was that deceased hit him with; that he could not see what it was; that he could not see any part of it and did not in fact see any part of it; that he only knew that deceased hit him with something that raised a bump on his head; that deceased only struck one lick; and that he, appellant, got out his knife and as deceased advanced again appellant cut him with said' knife. The carotid artery of deceased was severed by the blow and he died almost at once. No weapon of any kind was found on or around his person r his pocketknife being closed and in his pocket when his body was searched after death. Appellant’s description of the result of the lick made at him by deceased is as follows:

“At the time of the' trouble I received a lick on the head given by Willis Hopson. The lick was on top of my head along up there in the hair. It was a gash and made a bump on my head. The bump was a little bit bigger than your thumb, I guess. * * * I showed the bump to Tuck (Wolf) and to you (Mr. Bell).' The wound bled. I couldn’t see how big a place it was.”

Appellant’s father was not at the dance, but testified that when appellant got home that night he showed him the place on his head and it had blood on it. He said of the injury:

“The broken place on the skin of Jack’s head was a jagged place, just one dent, a rough dent in the skin.”

He also said:

“I found a small place on Jack’s head, something like the big end of your thumb; looked like he was hit with a knife; I just found a knot there. The skin was broken where he was hit.”

This witness said that he had a doctor to examine 'appellant’s head, but the record does not contain the testimony of such doctor. No other witness testifies that deceased had any weapon or assaulted appellant with one on said occasion. Nothing in the authorities cited by appellant or in any known to us would seem to require a charge applying an application of the legal presumption contained in article 1106, supra, in a case where there was no more testimony of an attempt on the payt of deceased to inflict murder, maiming, or serious bodily injury than appears in the instant record. We do not deem it necessary to discuss or analyze the authorities cited, believing a statement of the. facts in this case enough to show the soundness of our conclusion.

’It is also urged that the court’s definition of a deadly weapon was erroneous as applicable to the instruction presenting articles 1147 and 1149 of our Penal Code. The learned trial judge herein gave to the jury in his charge the provisions of articles 1147 and 1149, supra, and we quote in part from the charge applying said articles as follows:

“Now, in passing upon the intent of the defendant in this case, you will take into consideration the instrument, if any, used by him in inflicting death upon the deceased, and, if you should find from the evidence in this case that the instrument so used, if any, was one not likely to produce death, then, in that .event, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appeared. And in passing on this question you will take into consideration all of the evidence before you.
“In accordance with the. foregoing instructions, you are instructed that where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide unless it appears that there was an intention to kill, but the party from whose acts the death resulted may be prosecuted for and convicted of any grade of assault.
“You are charged, therefore, that, if you believe from the evidence beyond a reasonable doubt that the defendant■cut or stabbed the deceased with a knife and thereby killed him, but you further believe that the stab or cut was given under the influence of sudden passion, as that term has hereinbefore behn defined, and that the knife used was not calculated to produce death in its usual customary and ordinary use, that is, as a weapon, the knife would not ordinarily produce death, and further believe that there was no intention on the part of the defendant to kill the deceased, then you cannot convict the defendant of any higher offense than aggravated assault.”

The state’s testimony shows that after appellant’s conversation with Miss Bird he said he was going to whip'the G- d-son of b-and was going to kill him if he could. King Potter swore that appellant asked him where deceased was and said he wanted him; wanted to cut his G-d-guts out. It is not disputed that appellant called deceased out of the house and that they walked together out to where the cutting took place. Appellant said when they got outside the yard he asked deceased if he had been telling lies on him and that deceased replied that anyone who said that he had been doing, so was a G-d d-n liar, and at once struck appellant and knocked him back and staggered him; that he, appellant, got out his knife and ;cut deceased as the latter again advanced upon him.

There is no testimony in the record as to the size of said knife or the length of its blade, or suggesting that it was not a weapon which, used in striking or cutting, would not ordinarily inflict death or serious bodily injury. We are of opinion that the charge as quoted sufficiently applied the law of the articles last referred to, to the facts. It was manifestly not the court’s duty to tell the jury to acquit, if they did not believe said knife was a deadly weapon; but it was his duty, after presenting the question that, .if the jury were not satisfied that it was. a deadly weapon, to then proceed to consider the charge on manslaughter and aggravated assault. We think there is no merit in appellant’s complaint of the charge in the regard just considered, nor in refusing special charges Nos. 3, 4,- and 6, which were substantially in accord with the charges as given.

There are ten bills of exception to the argument of attorneys for the state. Their length precludes our setting them out, but we have given to each our careful attention. An explanation is attached to one of said bills and referred to in the approval of others, stating that appellant’s attorneys had made inflammatory appeals to the jury not to disgrace the old gray-haired father of appellant, etc., and that in the opinion of the court much of the appeal complained of by appellant was in reply to similar appeals made by his attorneys. In none of said bills do there appear any statements of material facts dehors the record, from which statements conclusions of guilt might be reached, and none of said bills reflect personal abuse of appellant. They consist for the most part in appeals to uphold the law, to ,be mindful of the parents of the deceased and of their loss, and to keep in mind the destruction of the life of this young man and to do their full duty as counsel for the state saw it. To circumscribe the argument of state’s counsel to where same would not transgress the bounds of propriety as fixed by those who defend would be to give to the attorneys for those charged with crime weapons of appeal and denunciation and deny their use to those representing the state. We are not willing to go this far.

That the mother of deceased fainted during the argument was made the subject of complaint in the motion for new trial, and the evidence of part, if not all, of the jurors was heard by the court in passing upon said motion. As we understand the record it appears that the mother of deceased was seated in the audience and had not testified in the case and was not known to the jurors, with possibly one or two exceptions. As we read the record, there was no discussion or reference to this matter in the jury room or in the argument, and we are not lead to believe that the trial court exceeded his discretion in refusing the new trial asked for this reason.

Appellant set up in his motion for new trial newly discovered testimony, but the motion was not supported by the affidavit of the new witness or of any one who had talked to or communicated with him, nor is there other evidence of the truth of the assertions in said motion such as would have justified the trial court in acting favorably thereon. It is alleged in the motion that the attorneys for appellant had talked with the witness whose testimony is set up as newly discovered, and it is asserted that he misled them or stated falsely to them, but there is no affidavit by said attorneys giving the communication had by them with said witness. It is manifest that under a verdict such as given in the instant case appellant must 'have been confined in jail from the time of conviction until now. If in fact there was sufficient communication with the witness in question to furnish the basis of a satisfactory claim that he knew the facts now asserted to be provable at his hands, we think sufficient showing should have been made to the trial court, in connection with the motion for new trial, to satisfy him with some reasonable certainty that the witness would give the testimony referred to.

The state’s case showed bad feeling on the part of appellant toward deceased and threats made by him prior to the night of the homicide to the effect that he was going to whip deceased, and that deceased had told lies on him, and that deceased was a coward and would not fight. It was in testimony that appellant had said that he was going to talk' to Miss Bird and find out if deceased had told certain things .on him. This testimony connects closely with the actions of appellant on the night in question. If Miss Bird’s testimony is true, he did come to her, and after a talk with her, in which she asserts that she told him positively that no one had told her any lies on him, that this, coupled possibly with her refusal to make a date with him, aroused his anger, is supported by her testimony; that at once he began seeking deceased and called him from inside the house out into the darkness, and that he told him he wanted to talk to him and went with deceased away from the crowd out to the point where the cutting took place almost immediately, is also without dispute. Three witnesses who saw appellant after his conversation with Miss Bird testified to his serious threats toward deceased. The cutting. took place outside the yard in the darkness. Deceased ran back into the yard in a circle and fell and expired without making any statement. On that night and after-wards appellant asserted that he did not know who struck or cut deceased. He made no' claim on that night to any of the parties with whom he talked of any claim of self-defense. He says that he talked to Tuck Wolf, apparently a relative, immediately after the cutting. Tuck Wolf was not used as a witness on behalf of appellant. Appellant’s father says that when appellant got home that night he told him that he and deceased had a fight and that deceased struck him with something, and that when he straightened up deceased was coming at him.

We think the evidence sufficient to support the conclusion reached by the jury; and, finding no reversible error in the record, an affirmance is ordered.

On Motion for Rehearing.

X/ATTIMORE, J.

Article 51 of our Penal Code is as follows:

“The intention to commit an offense is presumed ‘ whenever the means used is such as would ordinarily result in the commission of the forbidden act.”

Article 1147 of our Penal Code is as follows:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears.”

As we understand the above articles in the light of the language used and the decisions of this court, the presumption referred to in article 51, supra, does not obtain in a - given case under article 1147, supra, when the instrument used is one not likely to produce death, unless from the manner of its use the intent to kill evidently appears. The converse, of this statement .would be that, if from the manner of the use of a weapon not per se deadly the intention to kill evidently appears, the presumption referred to in article 51, supra, would obtain.

Article 1147, supra, is a limitation on article 51, and in cases where the instrument used is not per se deadly, i. e., not likely to produce death when used as a weapon to cut or stab with, in ordinary cases like the one before us, the presumption referred to in article 51 does not obtain, unless from the manner of the use of such weapon the intention to kill evidently appears. The presumptions referred to are of law. Borden v. State, 42 Tex. Cr. R. 648, 62 S. W. 1064; Spivey v. State, 45 Tex. Cr. R. 496, 77 S. W. 444; Burnett v. State, 46 Tex. Cr. R. 119, 79 S. W. 550; Gallagher v. State, 55 Tex. Cr. R. 51, 115 S. W. 46; Andrus v. State, 73 Tex. Cr. R. 329, 165 S. W. 189. For practical purposes in the trial of cases it seems to us that a condensed statement of articles 51 and 1147, supra, might be thus made; if there be an issue as to the deadly'character of the instrument used, when ordinarily used in similar cases, the question of the intent to kill should be submitted to the jury and they should be told in appropriate language that, if in such case they do not find that the defendant intended to kill, they could not find him guilty of any grade of felonious homicide. In other words, if A. in an attack on B. which results in death uses a weapon not ordinarily deadly when used in such attack, the question is, Did he intend to kill? If yea, and neither justified nor excused, he is guilty of felonious homicide; if nay, only of some grade of assault

In the instant case, in addition to quoting article 1147 in his main charge, the learned trial judge gave the following special charge at the request of appellant:

“In all cases of homicide the law requires as an element of guilt an intention to kill; and if in this case you find that defendant did not, when he cut or stabbed deceased with a knife (if you find that he did cut or stab him), intend to kill deceased, then you should acquit the defendant of any grade of homicide and inquire only as to whether or not he is guilty of some grade of assault and battery, under other instructions of the court.”

This was favorable to appellant. It assumes, in effect, that the knife was not deadly, and authorizes acquittal of felonious homicide, if there was no intent to kill. This put plainly before the jury the only question necessary for them to decide in connection with article' 1147 in its application to the facts of this case, and the refusal of appellant’s' special charge No. 2, which he now insists requires a reversal, was not erroneous. There is nothing in Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361, nor in the conclusion of the court in Grant v. State, 65 Tex. Cr. R. 266, 143 S. W. 929, contrary to our views here expressed. There is much in the reasoning in the latter case which we cannot follow, but the conclusion of the court in that case is expressed as follows:

“Independent of article 717 [now 1147] appellant’s purpose and intent in the difficulty, under the circumstances of this case, ought to have been charged as well as the provisions of said article.”

The distinguished jurist writing for the court in said case then concludes his opinion by saying that a speciál charge very similar in substance to that given in the instant case, and quoted above, should have been given. The attack made by the appellant in that case was only .with nature’s weapons, hands and feet, and the court expresses serious doubt as to the sufficiency of the testimony to support a conviction for homicide in any event.

We regret our inability to follow learned counsel for appellant in their conclusions regarding charges necessary in a case where the deadly character of the weapon used is questionable. The fewer the words used, if adequate and apt in placing the legal issues involved before a jury, the less likelihood of confusion and misunderstanding. Appellant’s counsel, in the preparation of the special charge given, chose apt words to express the pith of article 1147, which was that, in a case such as the one on trial, before the jury could convict of felonious homicide they must find that the accused intended to kill. We believe much confusion could be avoided by the submission of this issue in similar form. The learned trial judge gave a definition of a deadly weapon in paragraph 16 of his charge. The definition given was that usually found in charges where the question of the deadly character of the weapon used is an issue. While said charge does refer therein to the definition given as a correct one in charges heretofore and here-ihafter ■ given, there are no subsequent charges in -which the expression “ deadly weapon” is used.

Appellant excepted to certain parts of the argument of the state’s attorney and insists that we erred in not holding same reversible error. At the risk of being tedious, we quote from most of the bills of exception the argument objected to. The argument objected to in bill of exceptions No. 26 is as follows:

“Say to the mothers of this country, who God knows sufícr enough, say to them who go down in the valley of the shadow of death to bring future citizens in this country, that we will stand by you. If you don’t, we as well buckle on our six-shooters, and go out and afford our own protection. Xou. don’t know but what some other mother’s boy will be next unless you convict this defendant.”

In bill No. 27 to the following:

“This man is guilty of murder and ought to be convicted. I know nothing .of. the facts in this case only from investigation I have made, and from that I am convinced of his guilt.”

In bill No. 29 to the following:

“When the defendant stabbed Willis Hopson and saw him fall dead, and said he did not know who did it, he had heard of big murder trials, and with his money and lawyers behind him he thought he would come free.”

In bill No. 30 to the following:

“Glose your eyes and go out and see Mrs. Lee Hopson as she goes to the funeral of her son;-think of her head bowed with grief. Is it worse to send this >boy to the penitentiary and bring disgrace to himself and to his father than to kill this' inoffensive boy so that he can’t return to his home or to the mother who gave him birth ? If that is your verdict, gentlemen of the jury, there can be no enforcement of the law in the, state of Texas. We stand by the dead body of Willis ’ Hopson, and , in the name of the mothers of this state appeal to you.”

In bill No. 31 to the following:

“Turn this man loose if you will; wrestle with your consciences the rest of your life; go home and kiss your wife with a stained lip.. Say to your-wife, whenever your boy is cut down like' a dog, the juries of this.county will turn the murderer lose and parade him as a hero.”

In bill No. 32 to the following:

“Unless juries will convict under the statement of facts in this case, I don’t see how the state of Texas can protect you and me. There are some people that have no fear of God or man. The only fear they have is of the penitentiary or the gallows. The only thing that will protect us from them is that the juries of the state will enforce the law, of murder. Unless the juries of the state will convict these murderers the people of this state, are in danger, and you are in danger and I am in danger, and your boy or my boy may be the next boy murdered to have his murderer turned loose and paraded as a hero.”

In bill No. 33 to tile following:

“Unless you brand this boy as a murderer and send him to the penitentiary or take his life, your boy may be the next, or somebody else’s boy.”

In bill No. 35 to the following:

“If you do not convict Jack Wolf, Jr., of murder in this case, then I say turn them all loose and let the people of Coryell county buckle their pistols around them and protect themselves, and let Willis Hopson’s father do it, and do not come to juries any more.”

In hill No. 36 to the following:

“Black and Jack Wolf, Jr., had fixed the plan. Willis Hopson did not know that when he was called out that in five minutes his lips would he sealed in death, and did not know that the plan was fixed and the signal set to seal his fate; give Willis Hopson, who is now dead and whose lips are sealed in death, a chance.”

These statements occurring in the argument are thus fully set out because increasingly complaints are here presented to arguments of state’s attorneys, and we are asked to reverse cases upon same. We quote - approvingly from Pierson v. State, 18 Tex. App. 564:

“As to the other remarks Of the district attorney which were objected to, we can perceive no impropriety in them. It was the duty of the district attorney, if he thought the evidence established the guilt of the defendant, to demand his conviction. He demanded a conviction in the name of the state, in the name of law, justice and right, in the name of society, in the name of' the widow and children of the deceased. We see nothing wrong in this. If the defendant committed the murder, he had acted against the peace and dignity of the state; he had outraged law, justice, right and stfciety; he had clothed the wife in widow’s weeds, and had made fatherless the children of the deceased; and each and all of these consequences of his crime demanded his conviction and punishment.
“It has become quite common to except to the remarks of counsel for the state in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The state has rights in this respect as 'well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us (1) that the remarks were improper, and (2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.”

In the instant case the learned trial judge gave special charges asked instructing the jury not to consider the arguments above quoted, shown in hills of exception No. 26 and special charge No. 14, which latter closed with the instruction to them to not consider any emotional and inflammatory language to the same effect, hut to not consider anything in making up their verdict except facts introduced in evidence, and in the. qualification to hill of exceptions .No. 27 makes the following statement:

“I thought that these charges as given were sufficient to cover all special charges requested by the defendant. In this connection, with reference to the argument of the district attorney, I desire to say that counsel for defendant in this case, as in thé usual criminal case of this character, employed emotional appeals in behalf of their client, played upon the sympathy of the jury for the gray-haired father of defendant, and in this way provoked and invited emotional argument on the part of the district attorney.”

We find in none of the arguments objected to any statements of evidence dehors the record, nor is there any personal abuse or vituperation, nor " such inflammatory ■ language as would call for a reversal of this case. Appeals to the jury to uphold the law and expressing the opinions of the attorney representing the state as to effects which might follow from adverse decision by the jury are known to them to be but opinions and conclusions of the attorney. If state’s attorneys were compelled to discuss only the facts in evidence, and could make no reply in kind to appeals such as are stated to have been made in the qualification of the trial judge above set out, and could make no kind of illustrations or appeals to the jury, a limitation would thus be put upon the representatives of the state which would manifestly be unfair. Counsel for those accused of crime have practically unlimited territory to explore in appeal and argument, and unless it is shown to the satisfaction of this court that some unfair advantage is taken, some uncalled-for statement made, or some fact placed before the jury not in evidence, or some other character of argument indulged in by state’s counsel which obviously would be calculated to mislead the jury, we would not feel called on to reverse for argument.

We fully appreciate counsel’s argument regarding the serióusness of a punishment such as was inflicted in this ease for what is called the tragic ending of a boy’s fight, wherein the hand of fate directed the one blow struck by appellant with his knife to a point where the great carotid artery lay so close to the surface. The question of the intent of the appellant in the use of his knife was fully submitted to the jury by the learned trial judge and doubtless similar or stronger appeals were made to the jury by able counsel representing this appellant. The solution of questions of this:kind was for them or are for presentation to the chief executive of the state.

The motion for rehearing will be overruled. 
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