
    PRICE v. STATE.
    (No. 8738.)
    (Court of Criminal Appeals of Texas.
    March 25, 1925.
    Rehearing Denied April 22, 1925.)
    1. Intoxicating liquors <§=>238(1) — Jury question whether accused threw away bottles or whether sheriff secured battles at place other than that of arrest.
    In prosecution for unlawful transportation of liquor, where accused denied having whisky, question whether defendant had on his person the whisky found near the place of arrest held, under the evidence for the jury.
    2. Criminal law <§=>723(3) — Argument in prosecution for unlawful transportation of liquor held not to call for reversal.
    District attorney’s argument that any man who peddles whisky ought to be sent to the penitentiary and further argument “I want you to help me rid W. county of bootleggers and show these fellows that the people of W. county will not tolerate such business” does not call for reversal.
    3. Criminal law <©=>730(14) — Argument that churches demanded conviction in liquor cases, though Improper, held not to call for reversal.
    District attorney’s argument, in prosecution for unlawfully transporting liquor, that “the churches demand that you do your duty and convict in cases like this, and I want you to stand by me in the enforcement of the law,” though improper, does not call for reversal in view of the prompt disapproval by court as well, as instruction to disregard, and the further fact that the lowest sentence was imposed.
    Appeal • from District Court, Wilbarger County; J. Y. Leak, Judge.
    W. L. Price was convicted for unlawful transportation of liquor, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Upon conviction for the unlawful transportation of intoxicating liquor, appellant’s punishment was fixed at confinement in the penitentiary for one year.

For some reason not disclosed by the record, the sheriff appears to have been watching appellant and saw him approaching a wagon yard. He seemed to be concealing something under the skirt of his coat. The sheriff followed and ás he entered the gate of the wagon yard appellant glanced back and seeing the sheriff broke into a run aroupd a house. The sheriff ran around the other -way, he and appellant meeting at the corner. The officer saw him throw two bottles down. One broke, the other did not. The unbroken bottle was full of whisky; there was sufficient left of the other bottle to detect that whisky had been in it. Appellant denied having any whisky. He claimed that the sheriff did not secure the whisky and broken bottle at the point where appellant was apprehended, but says the sheriff scratched around in a trash pile some eight or ten feet from where he arrested appellant, and there found the whisky and broken bottle. Appellant’s wife testified that he was wearing no coat the day of the arrest. Another witness who saw him as he was going towards the wagon yard testified to the same fact. On the other hand, a witness who was at the sheriff’s office, when appellant was brought in immediately after the arrest, testified positively that he had on a thin coat of some kind. These were questions of fact for the jury.

No exceptions were reserved to the court’s charge. It seems to have protected appellant’s rights in every particular. The only bills of exception found in the record' relate to the argument of the district attorney. 1-Ie said:

“Any man who would peddle such stuff as <■ this (holding up and referring to the bottle and its contents which had been introduced in evidence by the state) ought to be sent to the penitentiary.”

And again;

“I want you to help me rid Wilbarger county of bootleggers and show these fellows that the people of Wilbarger county will not tolerate such business.”

We are unable to observe anything particularly vicious or uncalled for in these statements of the district attorney. It is not that character of argument which calls for a reversal.

Another argument to which objection was interposed was as follows:

“The churches demand of you that you do your duty and convict in cases like this, and I want you to stand by me in the enforcement of the law and return a verdict of guilty.”

It appears from the explanation to the bill that, immediately upon the statement being made, the court stopped the district attorney, reproved him for making it and at that time orally instructed the jury not to consider the same, and at appellant’s request also gave a written instruction to the same effect. The statement should not have been made by the district attorney, and the court’s action relative to it was proper. However, in view of the prompt action of the' court relative to the matter, and the fact that only the lowest penalty was awarded upon facts which seem clearly to justify it, we are not called upon to reverse because of said statement.

The judgment is ordered affirmed. 
      .4J=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     