The only matter raised in appellant's motion for rehearing which has given us concern is our decision with reference to the argument of the private prosecutor complained of in bills of exception Nos. 21 and 22. If it be conceded that said argument was erroneous, it must be *Page 648 borne in mind that the trial court instructed the jury not to consider same; also that the purpose of said argument was to induce the jury not to acquit on the ground of insanity. Examination of the record reveals the fact that the testimony in support of the theory of insanity appears to fall far short of that cogency which seem to call for a judgment favorable to such issue. Some twenty witnesses who had known appellant many years, and some of them all of his life, testified to his sanity. He was a married man and appears to have transacted business in usual ways during, if not all, his life. On the other hand, three of the appellant's sisters testified that he was not of sound mind; also three other witnesses, the latter basing their opinions on apparently slight facts. Also a doctor who had sat on a jury composed of six doctors at a time when appellant was charged with another offense, and when there was no opposition to having him declared insane, testified that in his opinion appellant was insane.
We do not trench on the jury's province to pass on fact issues but are citing these matters as pertinent to the well established rule that where improper argument is resorted to but is withdrawn, or the court instructs the jury not to consider same, ordinarily the injury has been cured, and it will only be held reversible error by this court when, under the circumstances of the case, it does not appear legally possible that the injurious effect of the argument referred to could have been removed by the withdrawal or instruction. The burden is on one charged with crime to satisfy the jury by a preponderance of the testimony that he is insane, if such be the defense, and when the testimony in support of that theory appears such as to make it altogether unlikely that the jury would have accepted such a plea, we feel justified in taking into consideration such fact in determining whether in spite of the court's instruction, the argument complained of brought about a verdict different from that which otherwise would have resulted. We are not able to conclude under the facts of this case that the error of said argument was so serious as that it could not be cured by its withdrawal.
The motion for rehearing will be overruled.
Overruled.