268 S.W. 746 | Tex. Crim. App. | 1925
Lead Opinion
The offense is the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
There is no statement of the evidence heard upon the trial.
We understand from Bill of Exceptions No. 2 that during the progress of the trial, State's counsel, in the presence of the jury, said:
"If he wants to put the defendant on the stand, we will let him be put on."
This occurred while the appellant's counsel was addressing the court with reference to the admissibility of certain testimony touching declarations of the appellant, the admission of which the State opposed. Appellant objected to the remark, and the court instructed the jury to disregard it. We fail to find anything in the bill showing that the appellant did not become a witness. Complaint of the refusal of the accused to testify cannot be sustained when it is not shown by the bill that the accused did not testify. Quinney v. State,
The court instructed the jury that the witness Prickett was an accomplice, and informed the jury of the law touching the necessity for corroboration of an accomplice witness. The language selected by the court is like that in Campbell's case, 57 Tex.Crim. Rep.. This charge has been criticised as inaccurate in some respects and *387
as not applicable to every case. See Anderson v. State,
There was no error shown in refusing to instruct the jury to acquit the appellant. The evidence, aside from that of the accomplice, may have been ample.
In the absence of a statement of facts, the presumption is indulged in favor of the judgment that the evidence was sufficient to support the verdict.
The judgment is affirmed.
Affirmed.
Addendum
Appellant urges that the remarks of the State's attorney during a discussion between counsel for the parties and the court respecting the admission of certain testimony, — to the effect that if "He wants to put the defendant on the stand we will let him be put on," was a reference to the failure of the defendant to testify which ought to be held by us reversible error. The bill as it appears in the record shows that while the trial was progressing and appellant's attorney was making an argument to the court, he referred to what the defendant had said, in reply to which the State's attorney made the remark complained of. This appears to us to be in the nature of an objection on the part of State's counsel to a statement by appellant's counsel as to what he had said, there being nothing before the court to justify appellant's counsel in his reference. The evidence had not closed and it was not then known to State's counsel, apparently, whether the accused would be a witness or not. We do not think it violative of the rules.
Appellant has filed in this record a statement of facts agreed to by both counsel for the State and the defendant, within the time allowed for filing of the statement of facts herein, and asks us to issue a writ of certiorari to compel the perfection of this record. In as much as the statement of facts is not approved by the trial judge, even if it should be properly before us by insertion in the record, we could not consider it. In order to call upon this court to pass upon a statement of facts, it must bear the approval of the trial judge. *388
Appellant also asks us to consider another matter which is not properly before us. A motion was made to quash the jury panel upon facts therein stated. The truth of the matters so averred are not made to appear either by a statement of facts or a bill of exceptions filed during term time. In the absence of some such showing we must uphold the correctness of the action of the lower court in overruling said motion.
Being unable to agree with any contention made, the motion for rehearing will be overruled.
Overruled.
Addendum
We regret that we can not grant the application for leave to file second motion for rehearing. The showing of diligence on the part of appellant with regard to the filing of statement of facts, is not sufficient. The depositing of said statement of facts, after same had been agreed to by the district attorney and appellant's counsel, with the district clerk within the time required, but without the approval of the district judge, would not justify us in giving said statement consideration, or in ordering the issuance of certiorari to perfect the record, unless there had been a showing of more diligence than here appears. The mere fact that the district judge was in an adjourning county ill, would not justify appellant in making no effort apparently to procure his approval. However, in this connection we might observe that we have examined the statement of facts and if same were before us it would not change our judgment of affirmance.
Leave to file second motion for rehearing is denied.
Denied.
