Opinion
No. 17876.
Delivered January 22, 1936.
1. — Arson — Evidence.
In arson prosecution, volunteered testimony of a witness which embraced hearsay and opinion evidence, held not to present error, where qualification to bill of exception showed, without objection, that when witness wanted to volunteer the statement in question, defense counsel took matter out of court's hands, and told witness to go ahead and witness thereupon made the statement.
2. — Arson — Argument.
In prosecution for arson, argument of State's attorney inviting the jury to consider what kind of woman they were trying and asserting that "when we get after them they holler," to which objection was sustained and jury instructed not to consider same, held not prejudicial where the defendant, who was clearly guilty, was given lowest penalty.
Appeal from the District Court of Fannin County. Tried below before the Hon. Geo. P. Blackburn, Judge.
Appeal from conviction for arson; penalty, confinement in penitentiary for two years.
Affirmed.
The opinion states the case.
Cunningham Lipscomb, of Bonham, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for arson; punishment, two years in penitentiary.
The facts amply support the judgment; in fact, the appellant in writing confessed her guilt.
We find in the record four bills of exception. Bill No. 1 sets out that a witness while testifying volunteered certain statements embracing hearsay and opinion matters. This bill is qualified, without exception thereto, by the trial judge who certifies that what was said by the witness, as here complained of, was upon the direct invitation of defense counsel; that when the witness wanted to volunteer the statement in question, defense counsel took the matter out of the court's hands, spoke to the witness and told her to go ahead. She thereupon made the statement. The bill presents no error.
The matters complained of in bills 2 and 3 are in substance the same, and consist of certain statements and conduct of the accused shortly before the fire, tending to show motive and animus on the part of the appellant against the owners of the house in question, and as rebutting appellant's own testimony as to what occurred between the parties before the fire, and also showing why she went to the house whose burning a little later is attributed to her.
Bills Nos. 4 and 5 complain of argument of State's counsel, in one instance inviting the jury to consider what kind of woman they were trying, and in the other asserting that "When we get after them they holler." It is made to appear in each bill that when the objection to the argument was made the court sustained the objection, and instructed the jury not to consider the argument. We see nothing in either bill capable of harming the accused. She was clearly guilty. She got the lowest penalty, and this does not support an inference of prejudice.
Finding no reversible error in the record, the judgment will be affirmed.
Affirmed.