
    FOSTER v. STATE.
    (No. 9270.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Dec. 2, 1925.
    On Motion for Leave to File Second Motion for Rehearing by Appellant. Dec. 23, 1925.)
    1. Criminal raw &wkey;792(3) — Tw,t> charges on question of principals not error.
    In prosecution for robbery, giving of two charges on question of priAeipals held not error, where they were not copies of each other, but showed a clear distinction.
    2. Witnesses <&wkey;263 — Allowing witness to correct false statement made earlier in trial not prejudicial.
    Action of court in permitting witness to correct a false statement in testimony, given earlier in the trial of a robbery charge, held not prejudicial.
    3. Criminal .law <&wkey;655( I) — Private conversations between witness and judge in recess disapproved.
    Practice of trial court in holding conversations wifh a witness and receiving private information from him during time court is in recess .is disapproved.
    On Motion for Rehearing.
    4. Criminal law <&wkey;*72l(6) — Argument of district attorney as to why accused did hot prove alibi held not error.
    In prosecution for robbery, argument of district attorney that accused knew where he was when offense was committed and should have brought witness to prove it held not error as violating statute prohibiting reference to failure of accused to testify, where it was not shown that he was alone at the time referred to.
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    John L. Foster was convicted of robbery, and he appeals.
    Affirmed.
    J. W. Culwell, of Amarillo, for appellant.
    Tom Garrard, State’s Atty.,_ and Grover C* Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of ¿Potter county for the offense of robbery, and his punishment assessed at 6 years’ confinement in the penitentiary.

The alleged injured party identified the appellant as the party who, at the point of a pistol, held him up and robbed him of his money and certain checks which he had in his possession.

Appellant made no affirmative defense, unless it can be said that a very weak and partial alibi would constitute such.

By bill of exception No. 1, complaint is made at the argument of the district attorney, the effect of which was that the appellant knows where he was at the time the offense was committed, and the question was asked why he did not bring some witnesses to show where he was at that time. The bill of exception urged fails to show the status of the defendant’s testimony at that time, and utterly fails to negative the idea that there were witnesses that could account for appellant’s presence at the time the offense was committed. In the absence of a showing that the statute which prohibits reference to defendant’s failure to testify has been violated, we have no other course but to assume that the argument was legitimate and proper. The court also qualified the bill saying that it was not shown nor suggested anywhere in the record that appellant was alone at the time referred to by the district attorney. The bill was accepted with this explanation, and in this condition of the record it shows no error. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580.

Bill of exception No. 2 complains at the court’s action in giving two similar charges on the question of principals. The objection to these charges is that one is practically a copy of the other, and that in repeating these charges it places undue emphasis upon the state’s theory. We are hardly prepared to say that the charges are copies of each other; in fact, we think there is a rather clear distinction between the two charges, and are not prepared to say that the giving of each of them was error.

In bill of exception No.- 3, complaint is made at the court’s action in permitting the witness Cain to correct his testimony given earlier in the trial. The record with reference to this matter displays a rather awkward and unnecessary situation, but we think the objections urged to it are not tenable. It is proper and permissible for the court to permit a witness to correct a false statement that he has made at any reasonable time during the trial.' We do not commend the practice of the trial court holding private conversations with a witness and receiving private information from him during the time the court was in recess, but, as above stated, we think the bill of exceptions taken as a whole fails to show that any error was committed which was prejudicial to the defendant.

The above and foregoing disposes of each of the questions raised contrary to appellant’s contention, and, finding no error in the record, it is our opinion that the same should be in all things affirmed.

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.

On Motion for Rehearing.

MORROW, P. J.

In an elaborate brief and forceful oral argument by attorneys who have come into the case since its affirmance, it is insisted that a reversal of the judgment should have been accorded by reason of the violation of the article of the statute forbidding the comment upon the failure of the accused to testify. An examination of the bill upon the subject reveals the fact that the district attorney, referring to the defendant, said.:

“He knows where he was before he went to his room. Why don’t he bring witnesses here to prove it? He knows where he was. Why did he not bring some witnesses to show where he was?”

In qualifying the bill, the court used the following language:

“It was not shown nor suggested anywhere in the evidence that he was alone at time referred to by the district attorney.”

It occurs to us that the bill fails to show error. The facts are analogous to the case of Gallagos v. State, 49 Tex. Cr. R. 116, 90 S. W. 492, and other cases of like nature, to which reference is made in Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580.

The motion is overruled.

On Motion for Leave to File Second Motion for Rehearing by Appellant.

BERRY, J.

Appellant has filed a motion for léave to file a second motion for rehearing. We have carefully read the application and the second motion, and the same raises no new question, but consists of a reargument to the effect that we erred in holding that the district attorney in his argument did not necessarily refer to the failure of the defendant to testify. This matter has had our very careful attention in both the original opinion and in the opinion on motion for rehearing. In each instance, we reached the deliberate conclusion that the appellant’s contention was without merit. There is nothing in the second motion for rehearing that in any wise changes our views with reference to this matter, and believing that no good purpose could be served by allowing the appellant to file said second motion for rehearing, his application to do so is hereby overruled.

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. 
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