<p>1. —Murder—Evidence—Remarks by Court—Child. Witness—Practice in Trial Court.</p> <p>Where, upon trial of murder, one of the State’s witnesses was a child, who testified probably for the first time, there was no error in the remarks by the trial judge to the witness that she take plenty of time and answer the questions, the purpose of the court being to quiet her in order that she might not become excited and to assure her that no harm would hefall her, etc.</p> <p>2. —Same—Evidence—Witness Under Buie—County Attorney.</p> <p>Upon trial of murder, there was no error in permitting the county attorney, who was assisting the counsel for the State, to testify as a witness for the State, after he had. been sworn with the other witnesses and ordered placed under the rule, but remained in the courtroom assisting the State.</p> <p>3. —Same—Evidence—Instrument Used.</p> <p>Upon trial of murder there was no error in permitting a State’s witness to testify as to finding and taking possession of a hammer in defendant’s . barn, some twenty-four hours after the injury was inflicted upon deceased, and describing the condition thereof, with reference to blood and "hair upon it, etc. Following Young v. State, 49 Texas Crim. Rep., 207, and other cases.</p> <p>4. —Same—Argument of Counsel—Implement Used.</p> <p>Where, upon trial of murder, it was the theory of the State that the defendant committed the murder by using a hammer in striking deceased on the head, etc., which implement was in evidence, there was no error in the language of the State’s counsel in saying: “and by imagination transplant yourselves with "the bloody hammer and the whisp of mother’s hair, and standing at the lonely grave of this mother, write your verdict.” Following Tweedle v. State, 29 Texas Crim. App., 591, and other cases.</p> <p>5. —Same—Argument of Counsel—Response to Counsel’s Argument.</p> <p>Where it appeared from the bill of exceptions that defendant’s counsel had told the jury, in his argument that if defendant had anything against him the jury knew the District Attorney would have brought it out, to which State’s counsel replied that the State could not have done so under - the rule that the defendant must first put his character in issue, there was no reversible error. Following Sinclair v. State,. 35 Texas Crim. Rep., 130, and other cases.</p> <p>.6,—Same—Argument of Counsel—Implement Used.</p> <p>Where, during the closing argument the district attorney took the hammer which was in evidence and said: “I do not know who explained it better than Dr. Cummings, himself, who, on cross-examination said: ‘No, no, it occurred to me that she had been pecked.” (meaning the deceased). ‘You notice it from ear to ear with a blunt instrument like this,’ ” the argument being based upon the facts in evidence, there was no error.</p> <p>7.—Same—Argument of Counsel—Charge of Court—Bill of Exceptions.</p> <p>Where, upon trial of murder, the State’s theory was that defendant had killed deceased with a hammer, by knocking her in the head, and the defendant’s theory was that she was kicked by a mule, there was no error in the State’s counsel’s argument, using the language, “Has the defendant established to a reasonable and moral certainty that the deceased was killed by a jack?,” it not appearing by the bill of exceptions the connection in which this is used, and the court having already instructed the jury upon this phase of the case.</p> <p>'8.—Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder, the evidence against the defendant, although wholly circumstantial, was sufficient to sustain the conviction, under a proper charge of the court, there was no reversible error.</p> <p>-9.—Same—Rehearing—Argument, of Counsel—Implement Used.</p> <p>Where, upon trial of murder, there was before the jury evidence that the skull of the deceased was fractured in a number of places, and that by ■a number of blows with some blunt instrument numerous wounds had been inflicted, and that a certain hammer was in evidence, found near the scene of the homicide, spattered with blood and hair, etc., there was no error in the State’s counsel’s language, “it occurred to me that she had been pecked ■from ear to ear with a blunt instrument like this,” etc.</p>
