
    J. J. Long v. State.
    No. 24059.
    May 26, 1948.
    Rehearing Denied June 23, 1948.
    Hon. I. J. Curtsinger, Judge Presiding.
    
      Wm. E. Davenport, of San Angelo, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for driving an automobile upon a public highway while intoxicated. Punishment assessed was a fine of $50.00 and 10 days in jail.

Three highway patrolmen observed an automobile being operated on a street in San Angelo in an erratic manner. They stopped it and found appellant was the driver. They asked him to get out of the vehicle and walk a few steps. Their testimony was that he was “unsteady on his feet” and there was a “very distinct odor of intoxicants on his breath, his speech rather blurred and he had trouble in pronouncing his words.” Each of the patrolmen testified to substantially the same facts, and in their opinion appellant was intoxicated. Appellant, his wife and several members of his family testified that appellant had drunk only two bottles of beer and that he was sober. His peculiar speech was attributed to the fact that many of his teeth had been extracted, and his unsteady walk and erratic driving to illness.

The court gave a special charge telling the jury that if they found lack of control of the car which the officers had observed was due to the illness, lack of teeth, rheumatism, or any other physical defect of appellant, or had a reasonable doubt thereof, to acquit appellant.

A sharp issue on the facts was drawn, which the jury settled against appellant. This was the jury’s special province.

A number of objections to the court’s charge are found in the record, but none are thought to be meritorious, or to demand discussion.

Only one bill of exception is brought forward. It concerns the argument of the county attorney, who said to the jury, “Every man that was ever tried in this court charged with driving a car while drunk has said that he was sick.” Objection to said remark was promptly sustained and the jury was instructed not to consider the statement of the county attorney.

The argument should not have been made. We think the prompt action of the court in withdrawing it protected appellant from harmful effect therefrom.

The judgment is affirmed.

ON MOTION FOR REHEARING.

KRUEGER, Judge.

Appellant his filed a motion for rehearing in which he contends that in the original disposition of this case we erred in two respects, first, in holding that the trial court’s instruction to the jury to disregard certain argument of the county attorney cured the evil effect, if any, thereof, and second, that the trial court committed no reversible error in defining intoxication.

We have again reviewed the record in the light of his motion and are convinced that this case was properely disposed of on original submission.

Therefore, the motion for rehearing is overruled.

Opinion approved by the Court.  