
    Buford Armstrong v. The State.
    No. 14705.
    Delivered October 28, 1931.
    
      The opinion states the case.
    
      W. J. Barnes, of Houston, and Frank Judkins, of Eastland, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   CALHOUN, Judge.

Conviction is for the theft of an automobile over the value of $50; the punishment, confinement in the penitentiary for two years.

There is no statement of facts in this case. Several exceptions were taken to the charge of the court. We have examined said charge and no fundamental error is found therein. In view of the charge as given, we cannot say that it was not applicable to a state of facts that might be made by the evidence under the allegation of the indictment, and therefore in the absence of a statement of facts, the charge must be held sufficient. Henderson v. State, 20 Texas App., 304; Wallace v. State (Texas Crim. App.), 200 S. W., 1088; Bryant v. State, 35 Texas Crim. Rep., 394; Wilkerson v. State (Texas Crim. App.), 45 S. W., 805; Williams v. State, 67 Texas Crim. Rep., 590, 150 S. W., 185.

Appellant reserves a bill of exception to remarks of the district attorney in his closing address to the jury, wherein he is alleged to have used the following language: ‘Has this defendant proven by any witness that he ever paid one dollar for this automobile which he claims to have purchased ?”

The court qualified said bill to the effect that he heard what the district attorney said in his closing argument and that there was nothing said by him which could be construed as referring to defendant’s failure’ to testify, nor did said district attorney make the statement as contained in the bill of exception, but on the contrary what was said by the district attorney was invited by and made in direct answer to the argument of counsel for defendant. There is no exception to said qualification. As. qualified, no error is shown. Smith v. State, 21 Texas App., 277, 17 S. W., 471; Chalk v. State, 35 Texas Crim. Rep., 116, 32 S. W., 534; Moore v. State, 65 Texas Crim. Rep., 453, 144 S. W., 598; Campbell v. State, 62 Texas Crim. Rep., 561, 138 S. W., 607.

No error appearing, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  