McNiel v. State

CHRISTIAN, Judge. The offense is murder; the punishment, confinement in the penitentiary for life. It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Frank Turner by striking and beating the said Frank Turner with some instrument, the exact nature, size and description of the same being to the grand jurors unknown. The proof on the part of the State was sufficient to warrant the conclusion of the jury that appellant killed deceased by striking him with some heavy instrument. The State’s proof [555] was to the further effect that appellant had threatened to kill deceased. Testifying in his own behalf, appellant denied the killing. His testimony raised the issue of alibi. Appellant brings forward a bill of exception in which it is stated that the court overruled his request to submit an instruction covering the law of aggravated assault. There is nothing in the bill of exception to show that appellant excepted in writing to the court’s charge or presented a written requested instruction. Art. 658, C. C. P., provides, among other things, that the accused shall present his objections to the charge in writing, distinctly specifying each ground of objection. Art. 659, C. C. P., provides that counsel on both sides shall have a reasonable time to present written instructions and ask that they be given to the jury. It is shown in a bill of exception prepared by the trial court in lieu of one of appellant’s bills that appellant objected to the argument of the district attorney to the effect that the wife of the deceased reluctantly testified, in substance, that appellant was guilty of breaking the window lights out of the home of deceased. The remarks of counsel had support in the evidence. Hence no error appears. In another bill of exception it is recited that a witness for appellant was required to testify on cross-examination by the district attorney that her husband was in the penitentiary. In qualifying the bill of exception the court states that appellant interposed no objection to said testimony. A careful examination of the record leads us to the conclusion that reversible error is not presented. The judgment is affirmed. Affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.