#### McCULLY v. STATE.

No. 14309.

Court of Criminal Appeals of Texas.

May 20, 1931.

Rehearing Denied June 24, 1931.

*117Murchison, Davis & Murchison, of Haskell, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for 35 .years.

Appellant, in company with Gula Hinton, prosecutrix,3⁄8 and other young people, had driven into the country and stopped near the home of W. L. Ray. It was night, and prose-cutrix expressed the desire to return to her home. Instead of complying with prosecu-trix’ request, appellant took hold of her and pulled her down the road. Throwing prose-cutrix to the ground, he asked her, “Are you going to do what> I want you to, or am I going to have to make you?” Prosecutrix released herself from appellant, but he caught her and again threw her down to the ground. Appellant kicked her behind the ear, hit her with his fist, and bit her. She begged him to desist and fought him to her utmost, striking and scratching him. She screamed and cried for help, calling on one of the young men in the party to aid her. Appellant threatened to kill any one who came near them. He choked prosecutrix, saying to her, “If you scream I will just choke you that much harder.” Each time she tried to scream, appellant choked her, saying, “If I had my knife I would cut you up and kill myself.” Prosecu-trix told him that he had almost killed her. He replied that that was what he meant to do, and that it was his intention to kill her little by little. Overcoming her resistance, appellant had sexual intercourse with prose-cutrix ; the act producing pain and bloodshed. The foregoing facts were testified to by pros-ecutrix. Those present in the party testified to substantially the same facts as did prose-cutrix. After getting away from appellant, prosecutrix was carried to her home in the car of a passerby, who testified that prosecu-trix was in a hysterical condition. Her clothing was tom to shreds, she was bruised and scratched, and one of her ears was bitten nearly through. Prosecutrix immediately reported the occurrence to her mother. Physicians were called to examine her. They testified that her hymen had been recently ruptured, and, further, they described the bruises and wounds on her body. An examination of the ground disclosed conditions that indicated a struggle between the parties. Appellant did not testify in his own behalf, but offered his wife and another witness, who testified that they saw appellant immediately after the commission of the offense and that he was “crazy drunk.” State’s witnesses who were present at the time of the transaction denied that appellant was drunk.

It appears that appellant was a married man and prosecutrix an IS year old girl. She had been in appellant’s company on previous occasions, and, according to the testimony of one of appellant’s witnesses, had on one occasion kissed appellant. Prosecutrix deniSd that she had kissed appellant, but admitted that she had been'in his company at dances and at other places.

Appellant .brings forward several bills of exception in which he complains of the argument of the district attorney. Bill of exception No. 2 recites that the district attorney, in his argument, used language as follows: “Mr. Da vis.said ‘Gentlemen of the Jury: You never know when you look into the face of your own child what its end will be.’ I say to you, gentlemen of the jury, that if men like Guy McCully live and that child of yours is a girl you cannot know what her end will be when you look into her blue eyes.”

It appears from the bill of exception that the court sustained appellant’s objection and immediately instructed the jury not to consider the argument. Moreover, it appears that one of counsel for appellant, in his argument to the jury, had said: “You never know when you look into the face of your own child what its end will be.” The remarks of the district attorney were evidently intended as an answer to the argument of counsel for appellant. We deem it unnecessary to determine whether the argument was invited. If improper, and it is not conceded that under the circumstances such remarks were improper, the prompt action of the court in instructing the jury to disregard the argument, in our opinion, obviated the possibility of harm to appellant. We do not deem the argument of such grave character as to render it obviously injurious and prejudicial. Ordinarily, improper remarks of counsel will not present reversible error when withdrawn by the court and the jury are instructed not to consider them. Branch’s Annotated Renal Code, section 362; Alexander v. State, 40 Tex. Cr. R. 395, 49 S. W. 229, 50 S. W. 716.

In his argument, as reflected by bill 'of exception No. 3, appellant’s counsel asked the jury to give appellant a light sentence in order that he might come back to his wife a better man. Iñ reply, the district attorney, in , his closing argument, said, in substance, that, if the evidence in the case was true, appellant had once before stood before a jury on a charge of rape. The court overruled appellant’s objection to the argument. The recitals in the bill show that at the time appellant was attacking prosecutrix she said to him, “You have been in the pen One time for this and that ought to have learned you a lesson.” On cross-examination of prosecu-*118trix by appellant’s counsel, be elicited from ber tbe following: “I told tbe jury a while ago tbat I said ‘Now you have been sent to tbe penitentiary once before for tbis and tbat ought to teach you a lesson.’ Yes, sir, I bad known tbat all tbe time.” Other witnesses testified tbat they beard prosecutrix tell appellant that be bad been in tbe penitentiary for tbe same thing. Tbis statement was received in evidence without objection. Counsel for either side may properly comment on tbe facts in evidence and may draw reasonable deductions from tbe testimony. Branch’s Annotated Penal Code, section 370; Kelly v. State, 37 Tex. Cr. R. 641, 40 S. W. 803; Morrison v. State, 40 Tex. Cr. R. 473, 51 S. W. 358.

In closing bis argument, the district attorney urged tbe jury to assess tbe penalty at death. Tbe effect of bis appeal was that tbe facts in evidence warranted tbe assessment of tbe death penalty, and tbat tbe protection of tbe young girls of tbe country depended upon tbe assessment of tbe extreme penalty in proper cases. In Curry v. State, 96 Tex. Cr. R. 267, 257 S. W. 269, in which tbe punishment was assessed at death, tbis court held that it was proper for tbe district attorney to argue to tbe jury tbat tbe only way to stop murder was to assess tbe death penalty in proper cases. In any event, tbe death penalty was not assessed in tbis case.

Other bills of exception relating to tbe argument of tbe district attorney have been examined. Tbe opinion is expressed tbat they fail to present reversible error.

The judgment is affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court. ,

On Motion for Rehearing.

LATTIMORE, J.

Complaint is made of our refusing to reverse tbis case because of tbe argument of tb.e district attorney in which be expressed it as his opinion tbat at some time under the spell of able men like those now defending appellant a jury bad been misled into letting appellant off for a light sentence. Tbe record shows tbat appeals were being made to tbe jury by defense counsel, in effect, tbat they should give to appellant a light sentence if be was convicted in order tbat he might come home to his family. Inasmuch as tbe testimony substantially showed tbat appellant bad been tried for an offense like tbis before, and tbat be was at large and free at tbe time of trial, and tbat appeals were being made to tbe jury to give him a light sentence, we see nothing seriously objectionable in tbe argument.

Tbe second complaint in tbe motion is of argument also. Tbe testimony sbpwed without contradiction tbe condition of tbe prose-cutrix and ber garments, and ber immediate complaints to ber mother upon reaching home after tbe alleged rape. We do not think tbe argument referred to went outside the facts, or tbat it was such transgression of a fair appeal to tbe jury as should call for any reversal.

Tbe next complaint, also of argument, appears to refer to a matter plainly stated in answer to argument of counsel-for tbe appellant.

Tbe motion for rehearing will be overruled.