The judgment in this case was affirmed at a former day of this term. We have carefully reread the record, in as much as the jury assessed the death penalty, and given due consideration to the motion for a rehearing.
1. Appellant insists that the remarks of the county attorney, when he stated in his argument, that, "defendant was not kind and affectionate when he beat deceased up and knocked her down Saturday night," in the light of the record, were harmful and instrumental in causing the jury to assess the highest penalty known to the law. The trial judge in approving the bill, states that he instructed the jury not to consider such remarks. This has been frequently held by this court not to be a ground for reversal, and especially so when appellant presented the court with no special charge governing the matter. In the case of Garner v. State, 24 S.W. Rep., 420, the court holds that defendant can not complain of objectionable remarks of the prosecuting attorney if a special charge was not asked for the jury to disregard them, citing numerous authorities. Again, in the record *Page 34 we find that on that Saturday, at the carnival grounds, appellant did so mistreat deceased as to cause her to cry.
2. The second and only other ground relied on is that the evidence does not show express malice; that accused was of sedate and deliberate mind, and was sufficiently self-possessed to comprehend the consequences of his act. Appellant in his testimony claims he was very drunk at the time he killed the woman, and did not know what he was doing. The court in his charge admirably presents this phase of the case to the jury, and they find against appellant's contention. From the standpoint of the State's testimony this was an atrocious and uncalled for murder. Appellant pursued a woman screaming for help, knocked her down, and turned her over on her back; got down on her on his knees, and stabbed her to death.
The motion for rehearing is overruled.
Overruled.