
    PENDERGRASS v. STATE.
    (No. 7433.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1923.
    Rehearing Denied May 7, 1924.)
    1. Witnesses &wkey;>337(6) — Testimony as to pen-dency of theft charge against defendant held proper.
    In prosecution for violation of prohibition law,", where defendant stated that he had never been charged with an offense, inquiry on cross-examination as to pending charge against him in the county court for misdemeanor theft was proper, and testimony of pendency of charge was admissible as affecting his credibility as witness.
    2. Criminal law <&wkey;l059(l) — Exception not showing defendant’s theory of defense did not apprise court of weight of objection.
    An exception to charge that it did not affirmatively present defensive theory, but not showing what such theory was, was insufficient for review.
    On Motion for Rehearing.
    3. Criminal law <&wkey;728(4) — Refusal to sustain objection directed to district attorney’s argument as whole without error.
    Argument of district attorney that defendant stated on direct examination that he had never been charged with other offense, but admitted on cross-examination that indictment was pending against him for stealing automobile batteries, and that, if he testified falsely about such fact, then he may be testifying falsely about every other fact, and that the fact that “defendant stole these automobile batteries has nothing to do with this case,” was not subject to general objection, but the objectionable phrase quoted required special exception.
    ©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      4.'Criminal law <&wkey;728 (4) — Specific objection to argument not reached by objection to argument as a whole.
    One objecting to an extended argument as a whole, part of which is proper, cannot complain that court declined to sustain it.
    <§z^>For other cases see same topic and KI2Y-.N UMBER in ali Key-Numbered Digests and Indexes
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Earl Pendergrass was convicted of possessing intoxicating liquor for sale, and he appeals.
    Affirmed.
    Lon A. Brooks, of Anson, for appellant.
    R. G. Storey, Asst. Atty. Gen., for tbe State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jones county of the offense of possessing intoxicating liquor for the purpose of sale, and his punishment 'fixed at one year in the penitentiary.

From the state’s testimony we learn that appellant had agreed to sell liquor to one Davis, and that he met him at a certain point and had in his possession two quarts of whisky. Davis testified that appellant had told him the price of the liquor was $10 a gallon. Davis produced a $5 bill, and according to the testimony of the chief of police of Stamford, who witnessed the transaction, he handed the $5 bill to appellant. At this point said chief of police took part in the transaction and took charge of appellant and his whisky.

There is but one bill of exceptions in the record, which reflects appellánt’s complaint of certain argument of the district attorney. In substance, the argument was a statement of the fact that appellant had testified that he had never been charged with any offense; but, when the district attorney took him on cross-examination, he admitted- that there was pending against him ah indictment for theft in the county court, and that, if appellant would lie about the fact of his having been charged with any offense, he might be giving false testimony about every other fact testified to by him. A misdemeanor theft is an offense involving moral turpitude, and the inquiry of appellant was proper, and testimony of the pendency of the theft charge was admissible, as affecting the credibility of appellant as a witness. The argument of the district attorney seems in no wise improper.

The only exception to the court’s charge is that it does not affirmatively present the theory of the defense, but there is nothing in said exception showing what- the theory of the appellant is, and the court derives therefrom no information which would enable us to appraise the weight of said objection.

Finding no error in the record, an affirmance will be ordered.

On Motion f,or Rehearing.

The only matter complained of in this motion is that we should have reversed the case because of the argument of the district attorney, and it is urged that we did not consider said argument in its entirety; that, when so considered, it would appear that same was necessarily harmful. We quote from the bill of exceptions a part of said argument:

“Gentlemen of the jury, the defendant testified on direct examination that he had never been charged with any offense, but when I took him on cross-examination, and got in after him, he admitted that there was now pending against him in the county court of this, county an indictment for stealing some automobile batteries. Of course, the fact that the defendant stole these automobile batteries has nothing to do with this case, except you should consider said testimony of the defendant in passing on the credibility of the defendant as a witness in his own behalf, and of the weight to be given his testimony. If he testifies falsely about this, then he may be testifying falsely about every other fact testified to by him in this case.”

The bill of exceptions reflects the fact that defendant objected to all of said remarks, and asked the court to instruct the jury not to consider same for any purpose, which request was refused. The bill of exceptions further proceeds to' set out the fact that appellant hqd testified on direct examination that he had never been charged with anything, and that on cross-examination he admitted' that he was under an appearance bond, that they had an indictment against him, and that he had forgotten about this matter. On his redirect examination he testified that he was arrested for the theft of some automobile batteries, and that he told the officers that he bought the batteries, and went with the officers to the party from whom he claimed to have bought them, and that this party informed the officers that he had sold them to appellant.

It is thus made to appear that the appellant did admit upon cross-examination a fact which he had denied upon direct examination, and in such ease it would be perfectly proper and permissible for the district attorney to discuss that fact. It is now insisted in the motion for rehearing that the statement of the district attorney in said argument, that “the fact the defendant stole these automobile batteries has nothing to do with this case,” etc., was hurtful and improper, because the appellant had shown by testimony in the case that he did not in fact steal the batteries. We have above set out the objection that was made by appellant for the purpose of showing that he did not direct his objection at the part now claimed as hurtful, but directed his objection to all of the argument above quoted.

Trial courts rule upon objections as made, and one who makes an objection to an extended argument as a whole, part of which is proper, has no right to complain 'that the court declined to sustain the objection made. One who objects to testimony as a whole, part of which is admissible, is in no position to have, said objection considered. It is manifest from a consideration of the argument quoted that the state’s attorney was discussing the testimony of the appellant. He expressly says to the jury in that connection that they should consider the testimony of the defendant in passing on his credibility as a witness, and refers to his conclusion that, if the accused would testify falsely about this, then he might be testifying falsely about every other fact. The only thing appearing in the testimony showing that the accused had testified falsely was that he had originally denied having been indicted, and on cross-examination had admitted this fact. This was the thing to which the argument of the district attorney was directed, and this must have been in the mind of the trial judge when passing upon the objection made by appellant. If appellant. had seen fit to direct the objection to the particular matter complained of here at this time, the learned trial judge would probably have sustained the objection, though the matter would appear to be of small materiality and not to have influenced the jury, inasmuch as they gave to appellant the minimum penalty. The conviction was for possessing intoxicating liquor for purposes of sale. Two witnesses testified to the fact that appellant had whisky in his possession and offered it for sale to witness Davis, who agreed to take it, and Davis had a $5 bill in his hand, and was in the act of delivering the money to appellant when the officers came upon them and arrested them and took charge of the whisky.

Believing no error was committed by the trial court in refusing to sustain the objection as made to the argument, and that the matter was properly disposed of in the original opinion, the motion for rehearing will be overruled. ,  