Appellants again contend that we erred in our original opinion herein when we held that there was no error evidenced as shown in Bill No. 16 relating to the argument of the special prosecutor in which he is claimed to have said in his argument to the jury, among other things: *Page 336
"* * * and the people of this country have a right to expect you to stop such and to exterminate them from society."
It is insisted that such argument was inflammatory, vicious and malicious and conveyed to the jury the idea that the people of Texas, and of Travis County, knew the facts in the case and thought that appellants should receive the extreme penalty, and was a request to the jury to do what the people desired them to do. We think the above construction placed upon such remarks is a strained one and hardly deducible from the statement itself. It seems that the special prosecutor's idea was that "I think the people of Texas have a right under this testimony to expect you men, * * * and the people of this country have a right to expect you to stop such and to exterminate them from society."
Surely the speaker had a right to argue the testimony, and its expected effect upon the minds of the jury. Certainly he had a right to argue the infliction of a penalty commensurate with his idea of the proof, and surely, if a jury believed certain testimony, society at large or "of this country" had a right to expect the jury to perform its duty, whatever such duty might have been. The object of punishment is to suppress crime and reform the offender. Art. 2, P. C. These men were on trial for a serious crime and all people had a right to expect this jury to render a fair and just verdict whatsoever they might find such to be. We see no error in said bill.
The further point is again raised relative to the purported prejudice of the juror Cass, who they alleged to be an unfair and partial juror in that he had, prior to the time he was taken on the jury, expressed an opinion and a desire to have the appellants punished. On the hearing of the motion for a new trial, appellants offered testimony of two witnesses who said that a statement was made in their presence by juror Cass as follows:
"If I was on the jury, I would send them to the electric chair on their past record."
The juror Cass testified on the hearing of appellants' motion for a new trial that he did not make any expression as to the guilt or innocence of Chester "Curley" Wright or Elmer "Blondie" Wright in this cause; that he didn't think he knew their names; didn't know either of them; did not ever make a statement at any time prior to the time he was called as a prospective juror that if he were on the jury that he would *Page 337 send them to the electric chair on account of their past record. Thus, this contention became a fact issue for the consideration and determination of the trial judge; and, unless it should affirmatively appear that the trial judge abused his discretion, his action would not be disturbed by this court on appeal. In support of this proposition we cite Stanton v. State, 126 Tex.Crim. R., 71 S.W.2d 287; Friedsam v. State, 134 Tex.Crim. R., 116 S.W.2d 1081; and authorities therein cited. See also Autry v. State, 143 Tex.Crim. R.;157 S.W.2d 924. In the Friedsam case, supra, we said:
"The trial judge saw the witnesses, heard them testify in this matter, and overruled the motion for a new trial. In so doing we think he was acting within his discretion. We quote Branch's Ann. P. C., sec. 565, p. 288, as follows: 'When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant's guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the appellate court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge,' citing a long line of cases."
See also Meadors v. State, 101 Tex.Crim. R., 275 S.W. 829; McKenzie v. State, 11 S.W.2d 172; Bracken v. State,121 Tex. Crim. 278, 51 S.W.2d 379.
Mr. Alonzo Cass, the juror in question, testified on the hearing of the motion for a new trial herein, among other things, as follows:
"Prior to my being called as a prospective juror in this case, I did not make an expression as to the guilt or innocence of Chester "Curley" Wright or Elmo "Blondie" Wright in this cause; I don't think I knew their names. I did not know either of the Wright boys before this time. I did not ever make the statement at any time prior to the time I was called here as a prospective juror that if I were on the jury that I would send them to the electric chair on account of their past record. I didn't know them. I wasn't in Austin until the past two years."
Evidently the trial court believed the statement of Mr. Cass, and unless we are convinced that he was clearly wrong herein in so doing, it is our duty to uphold his judgment relative to such matter. We, therefore, see no error therein.
Thus believing, the motion for a rehearing will be overruled. *Page 338