Silver v. State

In his motion for rehearing appellant reurges many of the questions discussed in our original opinion. We believe all of them to have been correctly disposed of. To again write at length would be largely a repetition, and the near approach of the end of the present term of court prevents any extended further consideration of the many points stressed. Appellant is particularly insistent that we erred in disposing of his complaint at the argument of the district attorney on the court's qualification that the remarks complained of were invited by the argument of appellant's counsel. *Page 521 It is appellant's position that the statements of his counsel set out in the qualification and relied upon by state as inviting the objectionable argument, shows that the district attorney went far beyond the extended invitation. It must be apparent that it is most difficult for this court to accurately appraise a contention thus presented. The opinion of the learned presiding judge that the argument objected to was in response to remarks of appellant's attorney must of necessity have great weight with the reviewing court under the circumstances. Another thing that must be borne in mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial and not so regarded under other circumstances. This is illustrated in Todd v. State,93 Tex. Crim. 553, 248 S.W. 695; Coates v. State, 98 Tex.Crim. R.,265 S.W. 891; Vineyard v. State, 96 Tex.Crim. R.,257 S.W. 548. Where deliberate, useless, planned murder is committed in the perpetration of robbery and the death penalty merited under the facts we would hesitate long before attributing the assessment of such punishment to an argument. Under all the circumstances of the present case in connection with the qualification of the court on the bill in question we think the motion for rehearing should be overruled and it is so ordered.

Overruled.

ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.