¶1 DISSENTING OPINION.
¶2 I cannot sanction the reversal of this case upon the shadowy possibility of harm to the accused from proof of his admission that he did not attend the funeral of the child whom he had slain, seemingly in anger because of the childish prank of a group of young folks, one of whom had thrown a rock upon the roof of appellant’s house at night. Immediately after the rock was thrown appellant fired a shot gun loaded with buckshot dowm the road along which the group were going. The falsity of his story that he shot at an owl in a tree, was shown, and his guilt was overwhelmingly demonstrated. The fact that the jury were not prejudiced or inflamed by the evidence or argument complained of, but that they exhibited mercy toward appellant probably because they thought he shot in anger, is clearly demonstrated by the verdict which only inflicted a penalty of five years. It seems almost humanly impossible to avoid slight errors in the conduct of trials of criminal cases, but in cases where guilt is evident, and the law of the case has been substantially followed, in the opinion of the writer reversals should not be had.
¶3 When appellant was asked if he attended the child’s funeral, the only objection made was that this was immaterial and irrelevant. His attorney did not even think enough of it to object on the ground that it might create prejudice. Under all the authorities such an indefinite objection calls for no favorable action by the trial court, and no error was committed in overruling such objection. As said by us in Thompson v. State, 90 Texas Grim. Rep., 21: “A bill of exception so framed as to compel this court to search the statement of facts in order to find out What is therein referred to and meant, is ordinarily held by us insufficient and defective.”
¶4 In the argument the district attorney said: The defendant says he did not attend the funeral of the little girl, and I wonder why, — a heart *424 regardless of social duty and fatally bent on mischief.” This was objected to on the ground that there was no evidence before the jury warranting such argument, and that such remarks were inflammatory and prejudicial. Appellant’s counsel did not think enough of this to even ask the court to instruct the jury not to regard it, nor was there any special charge presented so requesting. There was evidence before the jury to support the argument. That same did not prejudicially affect appellant’s rights or influence the jury, is established by the small penalty inflicted, especially in view of facts surrounding the shooting which were themselves most inflammatory. A mature man in his house in the nighttime, — a group of children passing by,- — one throws a. rock on the roof, — they pass on a short distance, — a gun fires once from the door of the house, — the little girl is shot, — appellant explains: “I shot at an owl in a tree,” — the tree indicated is found to be in a different direction from the door than are the children, — upon examination not a twig of said tree had been struck by a shot, — down the road toward where the child was shot, twigs of bushes were found severed. These facts were before the jury in addition to the fact that he shot buckshot at a group of children for no other reason except their indulgence in a childish prank, — which proof together with a false explanation all so overwhelmingly indicates a heart regardless of social duty and fatally bent on mischief, that when it appears that a penalty of only five years has been inflicted, it is difficult to believe that any substantial ground exists for the supposition that the argument inflamed or prejudiced the jury. In the opinion of the writer such contention is wholly insufficient to call for a reversal of this case.
¶5 I most respectfully record my dissent.