Offense, assault to murder; penalty, six years.
The evidence shows that the appellant is a negro and the prosecuting witness a white man and that the difficulty arose over the settlement of a rental contract at the place Of business of the prosecuting witness, where the appellant had gone and where it seems he was required to go to make a settlement of his rent.
The most serious question raised in this case is the argument of the District Attorney.
By Bills of Exception Nos. 20 and 21, it is shown that the District Attorney stated in substance in his argument to the jury that "whenever a man is permitted to do that, whenever a law-abiding man knows that there is hard feeling between the white man and a negro, instead of sending that money attempts to go himself, with a loaded pistol, he knows that he has got murder in his heart or he wouldn't go; he would send somebody else, wouldn't he?" And further, "whenever you find a darky, that is so insulting who has no more respect for a man's word in his own place of business than to come back and search him out after he has been warned to stay from there, you usually find a darky who, on the least impulse, will take the life of the man or anybody else."
By Bill of Exception No. 22 it is shown that the following language was used: "Write one (a verdict), Gentlemen of the Jury, *Page 195 that will say to these negroes of Fayette County — I am proud of the negroes of Fayette County, that there are not many of them here, and the sooner you get rid of the rest of them, the better negroes you will have here and the better white people you will have here." It is claimed these remarks were an inflammatory appeal to race prejudice.
The last statement was not specifically objected to at any time. No special charges were requested to disregard any of said remarks. If an argument is so inflammatory that its effect could not be removed by instructions, the failure of the appellant to request instructions to disregard same will not preclude a review. Bullington v. State, 78 Tex.Crim. Rep.. Ordinarily the appellant must ask instructions to disregard argument in order to have the matter reviewed by this Court. Jordan v. State, 78 Tex.Crim. Rep.. Jones v. State,79 Tex. Crim. 85. Vernon's C. C. P., Vol. 2, pp. 128-129. In the absence of requested instructions and especially in the absence of a specific objection to the last statement above set out, we do not think the matter presents reversible error. The penalty seems too severe under the facts and this improper argument may have contributed to it, but the matter is not presented in such manner as to authorize a reversal.
A sufficient answer to all complaints concerning the charge in this case is that the Court gave at the request of appellant eleven special charges, which in our opinion cured all omissions in the Court's charge, and gave to appellant probably more than he was entitled to.
Practically all other bills are so qualified by the Court as to show no error and these having been accepted with the Court's qualifications and filed, bind appellant and he is in no position to complain about the matters therein set out.
We are not able to agree with appellant's contention that any prejudicial error is properly presented for review, and the judgment is therefore 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.