
    LINTON v. STATE.
    (No. 10301.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1927.)
    1. Criminal law <&wkey;656(4)— Statement of court in rape prosecution that child testified defendant toid her she would be whipped if she told of rape held prejudicial error, where testimony did not appear from record.
    Statement of court, made after objection to counsel’s argument, in prosecution for rape of 11 year old girl, that prosecutrix testified defendant had told her she would be whipped if she told parents she had been ravished, held prejudicial error, where no such testimony appeared from record; court’s statement being comment on weight of testimony on material inquiry.
    2. Criminal law <&wkey;656(l) — Trial court should avoid comments on testimony which might mislead jury.
    Trial court should be very guarded in comments on testimony in presence of jury in order to avoid impressing jury that court takes particular view of evidence.
    3. Criminal law &wkey;>!092(!3) — Court could not consider bill of exceptions not signed by trial judge.
    Bill of exceptions not signed by trial judge could not be considered.
    4. Criminal law <&wkey;>l 120(8) — Bill failing to state grounds for objection to impeaching evidence complained of could not be considered.
    Bill charging county attorney with impeaching witness with witness’ evidence given in jury room could not be considered, where bill failed to state any grounds of objection. •
    Commissioners’ Decision.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    Jim Linton was convicted of rape, and he appeals.'
    Reversed and remanded.
    Albert Reagan, O. M. Lord, and John T. Hitching, all of Beaumont, for appellant,
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BETHEA, J.

The appellant was convicted of rape, and his punishment fixed at 25 years in the penitentiary.

The appellant, together with several of his small- children and the prosecutrix, Alma Cushion, a little girl 11 years of age, went for a ride in appellant’s automobile late in the evening. They drove some distance from their home, down between what is known as the coast guard and the jetties. Appellant stopped the ear, and instructed all the children except the prosecutrix to get out, telling prosecutrix to remain in the car, as he had something to tell her. While prosecutrix was in the car, arid in the absence of the other children, it is alleged that appellant had intercourse with the prosecutrix. In view of the disposition of this case, this is a sufficient statement of the facts.

Bill of exceptions No. 1 complains of the action of the trial court in permitting the county attorney in his opening and closing arguments to argue that appellant told prosecutrix not to tell that she had been ravished because her parents would whip her, to which the appellant objected, and requested the court to instruct the jury not to consider such remarks and arguments for any purpose at all; that the court overruled said objection; and at the same time stated, in the presence ¡and hearing of the jury, that the prosecutrix “had testified that the defendant had told her not to tell the fact that she had been ravished because her parents would whip her.” This bill 'further discloses, and the record also discloses, that the appellant never at any .time told prosecutrix that if she informed her parents of the fact that she had been ravished they would whip her. In making the statement complained of, the learned trial judge fell into error.

Trial judges should be very guarded in their verbal statements or comments upon the testimony to and in the presence and hearing of the jury in order to avoid impressing the jury with the idea that the court entertained any impressions of the case which he wished them to know, and putting before them matters which should not enter into or affect their deliberation. This statement of the learned trial judge was clearly a comment upon the weight of the testimony on a material inquiry. This court,’in the case of Lagrone v. State, 84 Tex. Cr. R. 609, 209 S. W. 411, in passing upon a question similar to the one in the instant case, says:

“The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial. Jurors are prone to seize -with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved. The delicacy of the situation in which he is placed requires that he be alert in his communications with the jury not only to avoid impressing them with any view that he has, but to avoid in his manner and speech things that they may so interpret.”

We are unable to say that the remarks of the learned trial judge, in the light of the facts and circumstances in this case, were not harmful to the appellant. English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632, and authorities therein cited.

Bills of exceptions Nos. 2, 3, 4, 5, 6, 7, and 8, as qualified by the judge, present no error. Bill of exceptions No. 9 is not signed by the trial judge, and therefore, cannot be considered by this court. Bill of exceptions No. 10 complains of the admission of certain testimony of the witness Oscar Einton, and also complains that the county attorney was permitted to impeach said witness with the witness’ evidence given while in the grand jury room. This bill fails to state any grounds of objection, hence, under the holdings of this court, cannot be considered.

For the errors pointed out above, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM.

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. 
      
        Qza'E'or other cases see same topic and KEY-NtJMBEjR. in all Key-Numbered Digests and Indexes
     