
    WHITE et al. v. STATE.
    (No. 7972.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1923.
    Rehearing Denied Jan. 23, 1924.)
    1. Witnesses <&wkey;>48(l) — Defendant who pleaded guilty could testify against codefendants before same jury to which he submitted plea prior to return of verdict on plea.
    A defendant who pleaded guilty was properly permitted to testify against codefendants before the same jury to which he submitted the plea prior to return of verdict on plea and entry of final judgment of conviction against him, notwithstanding Vernon’s Ann. Code Cr. Proc. 1916, art. 788, making a convicted felon incompetent to testify.
    2. Criminal law <&wkey;>l09l (2) — Bills of exception complaining of testimony of witnesses who remained in the courtroom after rule was invoked held defective.
    Bills of exception complaining of the admission of testimony, after the rule had been invoked, of witnesses who had remained in the courtroom and had heard other witness testify, held defective for failure to specify testimony of other witness and state manner in which the testimony of witnesses who had remained in courtroom might have been affected thereby, or was connected therewith.
    3. Criminal law t&wkey;l 144(12) — Admission of testimony of witnesses who heard other testimony after rule had been invoked held not error unless court abused! discretion; presumption in favor of ruling that witnesses violating rule might testify.
    The admission of testimony of witnesses who had heard other witness testify after the rule had been invoked held not error, in the absence of showing that their testimony was affected by testimony of other witness; the presumption being, in the absence of such showing, that the court did not abuse its discretion in permitting the witnesses to testify.
    4. Criminal law <&wkey;l 119(4) — Prosecuting attorney’s statements, in argument to jury, that evidence showed defendants to be “bootleggers,” not reversible error in absence of evidence.
    In prosecution for the unlawful manufacture of intoxicating liquor, statement of prosecuting attorney, in argument to jury, that “the inference to be drawn is that the defendants are bootleggers” and that the defendants’ wives and children would have been better off if defendants “had worked at some honest legal work than if they had come to Brazoria county to bootleg as the evidence seems to show,” held not ground for reversal in the absence of showing that the statements were not warranted thereby.
    
      5. Criminal law <&wkey;726 — Prosecuting attorney’s arguments to jury in response to arguments of defendant’s counsel ,not ground for reversal.
    Statements by prosecuting attorney, in argument to jury in response to argument of defendant’s counsel, held, not ground for reversal.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    M. J. White, W. H. McBride, and T. C. Miller were convicted of the unlawful manufacture of intoxicating liquor, and they appeal.
    Affirmed.
    A. E. Masterson, of Angleton, and Cade Bethea and S. E. Hill, both of Livingston, for appellants.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, • for the State.
   HAWKINS, J.

Appellants were jointly indicted and jointly tried for the unlawful manufacture of intoxicating liquor. Allen entered a plea of guilty, but his codefend-ants were tried- upon their pleas of not guilty. All were found guilty, and their respective punishments fixed at three years' confinement in the penitentiary.

No statement of facts accompanies the record, and the alleged errors complained of must be determined alone from the bills of exception bringing them forward. After Allen entered his plea of guilty, he was used by the state as a witness against his codefendants. Objection was interposed because he had theretofore entered a plea of guilty. There is no merit in this objection. No final judgment of conviction had been entered against Allen, and at the time he testified no verdict of the jury upon his plea had been returned. He was testifying before the same jury' to which he had submitted his plea. See authorities collated under note 19, p. 701, art. 788, Yernon’s O. C. P.

Complaint is made in bill of exception No. 2 because the witness Davis was permitted to testify after the rule had been invoked and because he had remained in the courtroom and had heard the witness Johnson testify. Bill No. 8 complains because the witness Bussell was permitted to testify after having 'been in the courtroom and hearing a part of the testimony of the witness Johnson. Each of these bills is defective in not apprising this court what Johnson’s testimony was and that the evidence of Davis and Bussell in some way might have been affected thereby or had some connection therewith. As to Davis, the explanation to the bill shows that he was a deputy sheriff and had been assigned to wait upon the court during the term. As to Bussell, the explanation shows that he was also a deputy sheriff and was not present at the time the other witnesses were sworn and placed under the rule and came into the courtroom while Johnson was testifying; as soon as it was discovered that he had come into the courtroom, he was sent out with the other witnesses and heard no testimony except a part of that of the witness Johnson. There is nothing in the bills to make it appear that the judge in any way abused his discretion in the matter complained of.

Bills 4, 5, and 6 complain of argument of counsel for the state. In one instance he remarked: *

“Prom the testimony adduced on this witness stand the inference to be drawn is that.the defendants are bootleggers.”

In another instance the language was:

“That Miller and McBride’s wives and children would have been far better off if said defendants had worked at some honest, legal work than if they had come to Brazoria county to bootleg, as the evidence seems to show.”

As before mentioned, we do not have the facts proven upon the trial before us, and there is no statement in the bills of exception which would indicate that the arguments complained of were not proper deductions from the evidence. The objection was that they were inflammatory and prejudicial. So far as we are apprised by the bills, the statements complained of may have been entirely proper. In addition to this,' the explanation to the bill complaining of the language last quoted shows clearly to have been in response to argument of counsel for appellant.

The record discloses that a new trial was granted to Allen.

The judgments against White, McBride, and Miller are affirmed.

On Motion for Behearing.

LATTIMORE, J.

There being no statement of facts in this case, we have no possible means of determining thát the discretion of the trial court was abused in allowing witnesses to testify who were supposed to be under the rule. We are compelled to presume there was reason for such action on the part of said court, in the absence of any showing to the contrary. Nor can we hold a statement by the state’s attorney in argument' wrongful so as to call for a reversal, said statement being as follows: “Prom the testimony adduced on this witness stand, the inference to be drawn is that the defendants are bootleggers,” in the absence of a statement of facts. The remark attributed to. the state’s attorney seems to. be based on his deductions from the testimony. How can we say that said remark was unwarranted? If the evidence showed appellants to be bootleggers., it would be no transgression of tbe rules of argument to so state.

The motion for rehearing must be overruled. 
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