The offense is manslaughter and the punishment is four years in the penitentiary.
The indictment charged that the appellant killed the deceased in Floyd County, Texas, on or about the 4th day of October, 1922, by striking him with an axe. The record discloses that the difficulty occurred in Floyd County and that the lick was struck in said county but that the deceased died in Lubbock County two days after he was struck and that the lick struck by the appellant was the cause of the death of the deceased. Under this state of facts, appellant very earnestly contends in a very able brief that as it is essential in a prosecution for homicide to allege the place of the death that this allegation must be proved as laid and that in view of the fact that the indictment charged that the death occurred in Floyd County, proof that the injured party actually died in Lubbock County is not sufficient and does not correspond with the allegations contained in the indictment. Appellant's counsel has evidently devoted a great deal of time and thought to the preparation of his brief on this question and it evidences great research and ability on his part. We are convinced, however, that counsel has overlooked the application of Art. 210, 1925 Revision of the C. C. P. in connection with Art. 195 of said code. Chapter 2, beginning at page 30 of the 1925 Revision of the C. C. P. embraces Art. 195 and Art. 210.
Art. 195, supra, provides "If a person receive an injury in one county and dies in another by reason of such injury, the defendant may be prosecuted in the county where the injury was received or where the death occurred."
Art. 210 of chapter 2, supra, provides "In all cases mentioned in this chapter the indictment or information or any proceeding in the case may allege that the offense was committed in the county where the prosecution is carried on. To sustain the allegation of venue it shall only be necessary to prove that by reason of the facts in the case the county where such prosecution *Page 519 is carried on has jurisdiction." We think the clear language of Art. 210, quoted above, is conclusive to the effect that the trial court was not in error in refusing to hold that there was a variance between the allegation in the indictment and the proof offered on the trial.
By bill of exceptions No. 7, complaint is made at the court's action in refusing to retire the jury and permit the appellant to introduce proof showing that the voluntary statement made by the appellant at the examining trial was inadmissible. This bill of exception is approved with the qualification that the "evidence showed a legal examining trial with statutory requisites complied with before the statement was introduced." Under this qualification of the trial court, we think this bill of exception does not show error.
Appellant complains at the argument of the special prosecutor in the case. The bill shows that counsel made the following remarks in his argument to the jury: "I don't usually like to jump on witnesses but as long as they get upon the stand and commit perjury, like Allen McReynolds has done, I am not going to throw any bouquets at them." The bill shows that the defendant objected to these remarks and requested the court to instruct the jury not to consider them, to which request and objection the state's attorney replied: "Yes, sir, I accused him of perjury, I sure did, and it's not reversible error." The bill shows that appellant's counsel again objected and requested the court to charge the jury not to consider same, which the court declined to do. We think that the argument set out above was a statement of a conclusion reached by state's counsel and that it was not of such an inflammatory nature as to warrant a reversal of the case. The witness, McReynolds, may have told the truth but we do not believe that his testimony carries with it such convincing and inherent evidence of verity as to make it reversible error for the state's counsel to reach the opposite conclusion and to state such conclusion to the jury. We have carefully considered the other complaints raised by appellant in his bills of exception and believe that none of them present error. So believing, it is our opinion that the judgment should in all things be affirmed.
Affirmed.
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. *Page 520