
    PRICE v. STATE.
    (No. 9202.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.
    Rehearing Denied April 28, 1926.)
    1. Indictment and information &wkey;>l I (2) — Record of grand jury’s presentment of indictment against one who was already under bond held sufficient, though it identified such indictment by number only (Code Cr. Proc. 1911, art. 446, now Code Cr. Proc. 1925, art. 394).
    Record of grand jury’s presentment of indictment against one who was already under bond held sufficient under Code Or. Proc. 1911, art. 446, now Code Cr. Proc. 1925, art. 394, though it identified such indictment by number only.
    2. Criminal law <&wkey;687(2) — In prosecution for possessing mash, court held not to have abused discretion in refusing to allow accused’s wife to testify that whisky was made for her for medicinal purposes, after county attorney’s challenge in closing argument to produce her (Code Cr. Proc. 1925, art. 643).
    In prosecution for possessing mash, court held not to abuse discretion under Code Cr. Proc. 1925, art. 643, in refusing to allow accused to place wife on witness stand during closing argument, when county attorney challenged him to put her on stand and let her testify that whisky in question was made for her for medicinal purposes.
    
      (gcAFor other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    
      3. Criminal law &wkey;720(IO)—In prosecution for possessing mash, county attorney’s remark, in clo.sing argument to jury, that accused would start many boys on road to hell if turned loose, held insufficient to warrant reversal.
    In prosecution for possessing mash, county attorney’s remark in closing argument to jury that accused would start many boys on road to hell if turned loose held not sufficient to warrant reversal, being merely statement of his conclusion.
    4. Criminal law <®=»763, 764(6) — Instruction that any quantity of mash kept for making liquor for medicinal purposes would be lawful held properly refused.
    Instruction that any quantity of mash kept for making liquor for medicinal purposes would be lawful held properly refused, being on weight of evidence and argumentative.
    c&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Cooke County; C. R. Pearman, Judge.
    Will Price was convicted of possessing mash for the unlawful manufacture of spirituous, vinous, and malt liquor capable of producing intoxication, and he appeals.
    Affirmed.
    Culp, Culp & Culp and J. T. Adams, all of Gainesville, for appellant.
    Tom Garrard, State’s Atty., of Dubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   BERRY, J.

The appellant was convicted in the district court of Cooke county for the offense of possessing mash for the unlawful manufacture of spirituous, vinous, and malt liquor capable of producing intoxication and his punishment assessed at confinement in the penitentiary for a term of two years.

Appellant filed a motion to quash the indictment because there was not sufficient order on the minutes of the court showing the presentment of said indictment as required by article 446, C. C. P. 1911. In said motion it is made to appear that the following is the order of the court showing the presentment of said indictment:

“Thursday, May 1, 1924. This day came on to be heard into open court in a body the grand jury, a quorum thereof being present, and through their foreman delivered to the judge of this court the following indictments1, to wit: No. 7364 (and other cases by number against various other parties) and the said grand jury-adjourned until Wednesday, May 7, 1924.”

The record manifests the fact that No. 7364 is the indictment on which the appellant was convicted. The trial court correctly overruled the motion to quash. Lynn v. State, 13 S. W. 868, 28 Tex. App. 516. Judge Willson in the Lynn Case, supra, decided the exact question presented against the appellant’s contention. From that ease we quote the following:

“When an indictment is presented in court, the law requires that the fact of presentment shall be entered upon the minutes, noting the style and the file number of the indictment, hut omitting the name of the defendant, unless he is in custody or under bond. Id. art. 415. We see from the last-cited provision that there must be a file number upon the indictment in the district court, and this file number is evidently for the purpose of designating and identifying the cause. In our opinion, it is a sufficient description and identification of the cause to state its file number; and we hold, therefore, that the proceedings and certificate of transfer in this cause are in compliance with the statute, and that defendant’s plea to the jurisdiction was properly overruled.”

The ruling in the Lynn Case, supra, is not in conflict with the opinion of Judge Hawkins in the case of Hickox v. State, 253 S. W. 823, 95 Tex. Cr. R. 173, but a careful eonsid-ation of the Hiekox Case will show that it is clearly distinguishable on the facts presented.

The record discloses that the wife of the appellant was not used as a witness on the trial of the case, and bill of exceptions No. 3 complains at the action of the county attorney in challenging the appellant to put Mrs. Price on the stand and let her testify that the whisky in question was made for medicinal purposes for her. The bill discloses that this challenge was made in the closing argument, and the appellant objected to it, and at the same time accepted the challenge and offered to put her on the stand, but the court refused to permit this to be done. This was a matter within the sound discretion of the trial court, and we cannot say from this record that this discretion was abused in refusing to stop the argument and reopen the testimony at the stage of the proceedings when this happened. The argument complained of was legitimate and we doubt the propriety, under the circumstances disclosed by this record, of allowing it to be met by reopening the case.

By bill of exceptions, complaint is made at the remarks of the county attorney in his closing argument to the jury to the effect that, if they should turn the appellant loose, he would start on the road to hell many boys, etc. This language was rather lurid, but it clearly appears to be offered as nothing more than the conclusion and the deduction of the prosecuting attorney, and no doubt the jury considered and weighed it as such. We cannot say that it was of sufficient importance to warrant a reversal of the ease. In fact, as above stated, we think it clear that it was a mere statement of the prosecutor’s conclusion, drawn by him from the facts as developed on the trial of the case.

By special charge No. 4, appellant requested the court to instruct the jury that the law does not limit the quantity of intoxicating liquor a person may manufacture for the purpose set out in sections 2 and 3 of the main charge herein given, and any quantity of mash on hand would be lawful if the purpose of having said mash on hand was for the manufacture of intoxicating liquor for medicinal purposes and no other purpose. This charge was properly refused. It was clearly on the weight of the evidence, was argumentative, and certain parts of it were of doubtful legal soundness.

We have carefully examined the statement of facts, and it is our conclusion that the evidence is amply sufficient to support the verdict, and, finding no error in the record, it is our opinion that the judgment 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.

HAWKINS, J.

Article 394, C. C. P. 1925 (old Code art. 446), reads as follows:

“The fact of a presentment of indictment in open court 'by a grand jury shall be entered upon the minutes of the court, noting briefly the style of the criminal action and the file number of the indictment, but omitting the name of the defendant, unless he is in custody or under bond.”

The record of presentment in the present case is copied in our original opinion and identifies the indictment against accused by number only. It is again urged in appellant’s motion for rehearing that the statute (article 394, C. C. P. 1925) is mandatory, and that the presentment entry on the court minutes must show both the style of the criminal action and the file number of the indictment, and in addition must show the name of the accused where he is in custody or under bond; the record affirmatively showing appellant to have been under bond when the indictment was returned. It is appellant’s contention that the. omission of any one of the three items mentioned is fatal to the indictment when urged in limine. Wte think this position is not sustained by the former decisions of this court. Obviously the purpose of the statute quoted was to require such entry of the presentment of the indiptment to be made as would identify it as charging accused with a criminal offense. The quotation from Lynn v. State, 13 S. W. 868, 28 Tex. App. 516, contained in our original opinion, leaves no doubt that such was the construction given it by the court speaking through Judge Willson. This statement in Lynn v. State, supra, is claimed to be dicta, in that the question then before the court was the validity of an order- of transfer from the district court to the county court and not the sufficiency of an entry of presentment in the district court. This may be true, but the court had the very statute, now article 394, C. C. P., in mind, for the statute is quoted immediately preceding the announcement construing it. The view of the court as then constituted is confirmed by the opinion in Bohannon v. State, 14 Tex. App. 271. The contention there was that the indictment did not appear to have ever been returned into court and record made of the fact. The court said:

“This objection is not, we think, supported by -the record. We find in the record an entry showing the return into court, and presentment by the grand jury, of the indictment, designated by its file number, which we think is in compliance with the law. Code Crim. Proc. art. 415.”

It may be stated that article 415 referred to is identical with present article 394, C. C. P. The opinion in Hickox v. State, 253 S. W. 823, 95 Tex. Cr. R. 173, is not in conflict with the authorities relied on, but is in consonance with them. There the presentment entry only referred to an indictment charging “murder.” No number of the indictment was given, and neither was the accused named. It was held that the word “murder” identified nothing, that it could apply to one person or one indictment as well as another. We think this does not apply where the number of the indictment is entered of record, and the indictment on which accused is tried bears the same identical number.

We have again examined the complaint urged by appellant because the court declined to permit appellant to place his wife on the witness stand during the closing argument of the county attorney. Under article 643, C. C. P. (1925), the court in its sound discretion may permit admission of evidfence any time before argument closes, and a reversal will be ordered only when an abuse of such discretion is shown. See authorities collated under article 718, Vernon’s C. C. P., and under section 378, Branch’s Ann. Tex. P. C. Proof had been made that the wife of appellant had not been very strong for, some time; her family physician had also testified that, while he had not prescribed whisky for her in the sense that he had written prescriptions for whisky- yet he had told her that whisky would be beneficial. Appellant seemed content to let his defense rest on this proof, notwithstanding the state had proved that a quantity of mash, a coil, and some whisky were found in the smokehouse, and a still and a small quantity of whisky were found in a trunk in the residence. Appellant did not testify, and failed to call his wife to explain away the inculpatory facts or that the whis-ky was for her use as medicine, although she was in a position to throw light on the matter, and appellant knew the state was at liberty to criticize him for failing to call the wife as a witness. Whatever the language used by the county attorney in his closing argument regarding this point, the effect was a criticism of such failure. It was a matter appellant knew beforehand was available to the state, and he closed his evidence without using the wife. Under the circumstances, we think this court would not be warranted in holding that the trial judge abused his discretion in refusing to permit the wife to testify during the closing argument. There would have been no impropriety in permitting it, and cases might arise where the court’s refusal to permit evidence to be introduced at this point in the proceeding would be held an abuse of judicial discretion. We think it does not so appear under the facts now before us.

The motion for rehearing is overruled.  