This is an appeal from a second conviction for murder of the first degree, the punishment being fixed at confinement in the penitentiary for life.
Seven errors are assigned: (1) The overruling of an application for continuance. (2) In admitting evidence. (3) Refusing to exclude improper evidence. (4) Refusing charges asked by appellant. (5) Errors in the charge in chief. (6) Improper remarks by counsel for the State in the closing argument. (7) Because counsel for the State was permitted to reread reproduced testimony in the final argument.
This was the second application for a continuance, and if diligence is shown, still the facts desired from the absent witness were proved by other witnesses. Walker v. The State, 13 Texas Ct. App., 618.
The State proved certain facts by Mrs. Vidaurri without objection from the defendant, whereupon defendant moved to exclude certain parts of her testimony, and this motion was overruled.
We have very carefully examined the facts sought to be excluded, and when they are considered in connection with all the facts in the case we are not prepared to say that they are not competent evidence. But concede their incompetency, the questions to this witness were not so framed as to preclude objections by the defendant when the evidence was admitted, and he will not be permitted to speculate on the answers.
There is nothing in the fourth bill of exceptions.
There was a general exception to the charge of the court as a whole and exceptions pointing out supposed errors in the charge. The definition of express malice was not objected to specially. A general exception to the charge is no exception at all, and the supposed error in such state of case will be considered as if no exception to the charge had been taken. Conceding the error, the question would then be, was it such as to injure the accused when viewed in the light of the facts in this 'Case1? We are of the opinion that there was no injury to appellant from this error.
The court below gave in charge to the jury the law applicable to article 572, Penal Code, and then submitted the law applicable to article 570. In this there was no error, though the general practice is to submit the law applicable to article 570 first.
Counsel for appellant point out a great many supposed errors in the charge. We have examined this charge closely, and are of the opinion that when tested by the evidence as presented to us in the statement of facts it is a correct application of the law to all of the legitimate phases of the case. The reporter will give the charge in full.
In his closing argument counsel for the State said to the jury: “Counsel for defendant tell you that you must not disbelieve the defendant because he is the defendant. Gentlemen, this is not the law.” At *262this point defendant objected and excepted. The court remarked: “The jury will be charged that the defendant stands as any other witness whose credibility is to be judged of by the jury.” The State’s counsel proceeded, saying: “There will be weeping and wailing and gnashing of teeth in this country whenever the day shall come when a defendant as a witness for himself, swearing for his' life and liberty, shall stand on the same basis as an honorable, unimpeached witness.” Exceptions were taken.
It is not contended that the remarks of the judge were not heard by the jury. If they were, then the statements of the district attorney, if improper, and this is not decided, were rendered harmless, for the judge stated that the defendant stands as any other witness whose credibility is to be judged of by the jury.
We have read and reread the lengthy brief of counsel for the appellant. We have briefly noticed as we think the most important points raised, and must say that if there be reversible error jn this record we have been unable to discover it. As we view the case, this was a deliberate and unprovoked murder. We reach this conclusion after a very searching examination of all the testimony tending, or which is relied upon as tending, to excuse or mitigate the homicide. We have examined the charge not in the light of the State’s evidence alone, but in the light of every theory presented by any testimony which might be construed favorably for the defendant. We believe the charge taken as a whole is correct.
The judgment is affirmed.
Affirmed,
Davidson J., being disqualified, did not sit in this case.