We regret that we overlooked a motion made and filed with the clerk of this court by appellant calling attention to the fact that in making up the transcript originally herein, a bill of exceptions taken to the argument of the county attorney was omitted, because lost, discovering which fact appellant made a motion in the trial court to substitute said lost bill of exceptions, which motion was granted and an order entered by the trial court directing the filing of a substitute bill, the motion of appellant filed in this court being to have said substitute bill incorporated in the transcript before us by writ of certiorari or in any way deemed necessary. The motion of appellant being accompanied by certified copy of the bill of exceptions so ordered substituted, we do not deem it necessary to the orderly disposition of this case, that we set aside the judgment of affirmance and make an order that the record be corrected by bringing into same the said substituted bill of exceptions. We deem it entirely within the power of the court, and also proper, that we now consider said bill of exceptions in connection with this motion for rehearing, and it is accordingly done.
From said bill it appears that the county attorney, in his closing argument, alluded to the fact that while appellant's attorney was arguing the case to the jury he stated that appellant did not have the look of a criminal or desperado, and that he was of a retiring disposition. Said bill further shows that the county attorney in that connection stated that the law did not give the State the right *Page 120 to prove what kind of a man defendant was, but did give that right to the defendant, and why didn't the defendant bring his neighbors here and prove that he was a peaceable and quiet man, rather than to leave it to Mr. Smith's argument; that appellant's neighbors would know better about it than Mr. Smith. We find in the bill of exceptions and in the record no request for an instruction that the jury not consider such argument on the part of the State's attorney. We do not regard it of such harmful character as that its effect, if any at all, could not be removed by such charge. In fact we are inclined to believe the argument invited by the remarks of appellant's attorney, and that there was no transgression of the rules in making the reply which the State's attorney made. Patterson v. State, 87 Tex. 95; Terry v. State, 101 Tex.Crim. Rep..
We have tried to discover if there be any authority supporting appellant's contention in regard to the admission of the testimony of Dr. Largent, but have found none. We do not think the rejection of the testimony of said doctor in any way violative of the constitutional inhibition against cruel and excessive punishments.
Being unable to agree with appellant's contentions, the motion for rehearing will be overruled.
Overruled.