¶1 ON MOTION FOR REHEARING.
¶2 In his motion for rehearing appellant further insists that the charge given by the court on the issue of voluntary return of stolen property under Art. 1424 P. C. was on the weight of the evidence, and intimated that appellant was the thief. We are referred to Schultz v. State, 30 Tex. Cr. R. 94, 16 S. W. 756 and Eubanks v. State, 57 Tex. Cr. R. 153, 122 S. W. 35, in support of appellant’s contention. The judgment in each of said cases was reversed because the court instructed on “voluntary return” of stolen property in the absence of evidence which raised the issue. It was not appellant’s contention in the trial court that no charge should be given on the subject; on the contrary, after urging the objection that the charge given was on the weight of the evidence appellant says in connection with such objection the following:
“The Court is requested to change, correct and amend his main charge and incorporate therein an appropriate, affirmative instruction in the issue of the voluntary return of property, etc.”
¶3 It will be seen, therefore, that the only question presented is whether the charge given on the subject was open to criticism as being on the weight of the evidence. Considering the charge as a whole we think it not vulnerable to said attack. In paragraph 9 the court stated the law as to “voluntary return.” In paragraph 11 the court told the jury in appropriate language if they believed from the evidence beyond a reasonable doubt that appellant had stolen the animals in question and had not returned them voluntarily within a reasonable time before prosecution had commenced to find him guilty and assess his punishment at not less than two nor more than ten years in the penitentiary. In paragraph 12 of the charge the court appropriately told the jury if they believed beyond a reasonable doubt appellant had stolen the animals, but also believed, or entertained a reasonable doubt as to whether appellant voluntarily returned them before prosecution commenced, to find him guilty and assess his punishment at a fine not to exceed one thousand dollars. The court also gave the defensive charges referred to in our original opinion. Consid *568 ering the charge in its entirety on the subject of “voluntary return” we think it not subject to the criticism directed to it.
¶4 The only other matter urged in appellant’s motion is the complaint of argument of the district attorney relative to two questions. The first regarded a criticism directed by said attorney at Wesley Reynolds, who was a witness for appellant. We have examined the explanation of the court on the bill complaining of said argument, and also the statement of facts reflecting the testimony of said witness, and other evidence in the record pertinent thereto. Our judgment is that the district attorney was .drawing legitimate conclusions from the evidence in the remarks made regarding said witness.
¶5 The other complaint of argument relates to statements of the district attorney regarding an unfortunate incident which occurred at the time the wife of appellant was on the witness stand testifying in behalf of' appellant. A small child of appellant and the witness came into the court room and went to the mother while she was giving her testimony. During the argument of appellant’s counsel he made no direct reference to the incident of the child coming into the court room, but “had pleaded with the jury that if they convicted the defendant that it would be a disgrace, not only to the defendant, but to his wife and these little children.” In reply to said argument the district attorney used the language set out in our original opinion, and then referred to the incident of the little child coming into the court room while the, mother was testifying. It is apparent from what he said that it was his opinion that counsel for appellant had caused the child to come into the court room as it did, hoping for a favorable effect therefrom on the jury. Appellant’s counsel objected to the remarks of the district attorney, saying in the presence of the jury, “I object to that remark, if the Court please, on my honor as a gentleman and a practitioner, I didn’t do any such thing …” — that is, did not have the child come into the court room. The jury as reasonable men were bound to know that the district attorney was merely expressing his opinion as to the incident. Then we have over against such opinion the positive statement of appellant’s attorney that he had nothing whatever to do with it.
¶6 The incident'was unfortunate, and the remarks of the district attorney regarding it would perhaps have been better unsaid. However, it occurs to us that a jury of sensible men would not have used the circumstance as any ground upon which to base a conviction of appellant, especially so where the evidence in the record was -ample upon which to predicate their ver *569 diet. The fact that the lowest penalty was assessed is persuasive that no feeling was engendered against appellant as a result of the incident mentioned, and the remarks regarding same.
¶7 Appellant’s motion for rehearing is overruled.