Appellant was convicted in Bosque County upon a change of venue from Johnson County for the murder of W. R. (Bill) Robertson, and his punishment was assessed at ten years in the penitentiary.
This is a companion case to that of Sam Jarrell v. State (No. 20721) decided by this Court on February 7, 1940, (138 Texas Crim. Rep., 603) and the facts in the two cases are, as to all important issues, the same. Reference is here made to the opinion in that case for a full and complete statement of the facts as well as a discussion of the questions of law, which are the same except as hereinafter noted.
By Bill of Exception No. 1 complaint is made that while the witness, Sam Griffin, was being examined, the attorney for the defendant objected to his testimony and the private prosecutor in the case replied to the attorney: “He has answered the question; that is a shorthand rendition of the facts. He is an honest witness. You just want the facts and the truth, don’t you?”
The defense attorney answered, “Yes,” to which the private prosecutor replied, “I don’t think you do.” This was an improper indulgence of personalities. Exception was taken but it does not appear whether the exception was to the first statement of the attorney, which was with reference to the witness, or to his remark to the attorney, “I don’t think you do.” At any rate, the court instructed the jury not to consider the statement of the attorney. The bill does not disclose what harm appellant suffered from this tilt between the attorneys, and we are unable to see any error which the instruction of the court did not properly cure. The bill of exception is not sustained.
*278We .find no other matter in the case requiring consideration, and following the case of Sam Jarrell hereinabove referred to, this case is affirmed.