
    KIMBROUGH v. STATE.
    (No. 8653.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.
    Rehearing Denied April 8, 1925.)
    1. Criminal law <@=>721 (3) — State’s argument held not reference to defendant’s failure to testify.
    District attorney’s statement, “We have •heard no testimony in defense of him,” helé, not •objectionable as referring to defendant’s failure to testify, where record did not show that he himself would be only available witness, but to contrary showed that several were around still where it is charged defendant made liquor.
    2. Criminal law <3=>687(l) — Testimony may be introduced any time before argument concluded.,
    Since testimony may be introduced at any time before argument is concluded, objection to admission of evidence for state, after both parties had rested, helé without merit.
    3. Criminal law <@=>721 (3) — Argument held not violation of statute inhibiting reference to defendant’s failure to testify.
    Statement of state’s attorney in rejoinder that he joined defendant in request that, as charged by court, jury refrain from considering defendant’s failure to testify as circumstance in case helé not violation of statutory provision inhibiting reference to defendant’s failure to testify.
    4. Criminal law <@=>814(3)— Court need not give charge unsupported by evidence.
    Where facts abundantly supported proposition that defendant was not only present at still, but assisted in manufacture of liquor, instruction that mere presence at still, unless he aided or encouraged manufacture, would not make him guilty helé properly 'refused, since court need not give charge unsupported by evidence.
    On Motion for Rehearing.
    5. Criminal law <@=>l 128(2) — New matters cannot be set up in aid of transcript.
    Papers setting up new matters in aid of those in transcript cannot be filed.
    6. Criminal law <@=>265 — Defendant on bail pending grand jury action and not re-arrested after indictment held to have had two days after arrest.
    Defendant helé to have had the two days after arrest granted by Code Or. Proe. 1911, art. 578, where, after arraignment on same charge before magistrate, he was released on bond pending action by grand jury and arranged with sheriff not to re-arrest him but to have bonds prepared and delivered to his attorney; no new arrest ever being made or deemed necessary in view of related articles 551, 553, 557, 579. 1
    Appeal from District Court, Limestone County; J. R. Bell, Judge.
    Roy Kimbrough was convicted of manufacturing intoxicating liquor, a¿nd he appeals.
    Affirmed.
    Ó. F. Watkins, of Mexia, and J. E. Bradley, of Groesbeek, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. '
   DATTIMORE, J.

Appellant was convicted in the district court of Limestone county of manufacturing intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The evidence amply supports the proposition that appellant and others were engaged in the manufacture of intoxicating liquor. The state introduced four or five witnesses who testified to facts establishing this proposition. Appellant introduced no testimony. The record does not establish that the circumstances were such as that there were no witnesses by whom he could have proven a defense.

There are five bills of exception. The first complains of argument of the district attorney wherein he said:

“We have heard no testimony in defense of him, it has all been for the state.”

No ground of the exception is stated in the bill, but we presume that it was upon the hypothesis that it referred to the failure of the defendant to testify. The bill might be disposed of upon the proposition that there is no showing in it of the fact that appellant did not testify. The rules uniformly require that a bill manifest by its own terms the error complained of. We do not believe the matter set out transgresses the rule against referring to the failure of the defendant to testify. There is nothing in the record which shows that there were no witnesses other than himself by whom he could have proven a defense. A number of parties were at and around the still, where it is charged he made the intoxicating liquor. He introduced none of them as witnesses in his behalf.

When the case was called for trial, appellant moved for a postponement for two days, setting up that he was not legally arrested in this cause until the day on which the case was set for trial, and upon the ground that he would be deprived of the two days granted him by statute after arrest. From the qualifications of the bill, it is made to appear that appellant was arrested and an ' examining trial was had nearly a month before the date of the instant trial; that he gave bond after said examining trial binding him to appear before the district court to await the action of the grand jury in the matter. It is also stated that, pending investigation by the grand jury, appellant left the county and went to see his father, and that be requested his attorney to arrange with the sheriff, in the event the grand jury returned an indictment against him, not to re-arrest him but to have bond or bonds prepared and delivered to his said attorney. It is stated in said qualification that his attorney made said request of the sheriff, and that when the grand jury indicted appellant the sheriff prepared bonds and delivered them to appellant’s attorney, who sent them to him, and it is further shown that notwithstanding the fact he had received said bonds, they were not brought by him to the sheriff until the morning of the day this case was set for trial. The court states no new arrest was ever made and none was deemed necessary. In our opinion, this statement entirely meets the objections presented in said bill of exceptions. If, in fact, there was no arrest made of appellant on the day of the trial, and if he appeared in obedience to the bond given by him several weeks before, which bond was for the same matter, we are unable to perceive the application of article 578, C. C. P., or how appellant could invoke it to secure an additional two days before going to trial. Said article in terms grants to one charged With crime two entire days “after his arrest” to file written pleadings. As said by Judge White in Johnson v. State, 4 Tex. App. 271:

“Where a defendant seeks to take advantage of mere formal or purely technical objections, he also will be held to a strict and technical showing as to the correctness of his objections.”

It is also insisted that the court erred in allowing the state to introduce testimony direct in its nature and after both parties had rested. No particular witness or testimony is referred to in this bill of exceptions. It seems to be the rule, under our statute, that testimony may be introduced at any time before the conclusion of the argument, and this being true, we perceive no validity in the objection thus made. '

There is another bill of exceptions similar to the first one considered, complaining of the statement made' by- the district attorney to the effect that they had heard no testimony in defense of appellant, that all they had heard was against him. We do not regard the-matter as of serious import.

There is another objection to the argument -upon the proposition that the state’s attorney read that part of the charge instructing the jury not to consider against the accused his failure to testify, and made comment on it. The bill reveals the fact that appellant’s counsel first read the charge and commented on that particular part of it, and reminded the jury that according to the court’s charge they could not take his failure to testify into consideration, or as a circumstance in the case. In his rejoinder the state’s attorney merely said that he joined counsel for the defendant in such request. We do not think this a violation of the statutory inhibition.

The remaining exception was taken to the court’s action in refusing a special charge, in effect, that the mere presence of the defendant at the still at the time and place alleged would not make him guilty, unless in addition the jury found that he aided by acts or encouraged by words other persons engaged in the commission of the offense. It is not incumbent on the court to give a charge.which has no support in testimony. The facts in the record abundantly support the proposition, not only of appellant’s presence, but of his participation with the others in the unlawful manufacture of the liquor.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant urges that we erred in holding him not entitled to the two days asked in which to file written pleadings discussed in our original opinion, and in' this connection he seeks to file papers seemingly setting up new matters in aid of those in the transcript. This we regret cannot be done. Appellant contends that for us to hold that his arrest and making bond prior to his indictment for this offense is such arrest as is contemplated by article 578, C. C. P., defeats the purpose of law, and Evans v. State, 36 Tex. Cr. R. 32, 35 S. W. 169, and other cases are cited. Article 578, C. C. P., says that in all cases the defendant shall be allowed two entire days, exclusive of all fractions of a day after his arrest, and during the term of the court, to file written pleadings. To enable us to understand as fully as we can the mind of the Legislature in using the words “after his arrest” in said statute, we notice other related articles of the Code. Article 579, C. C. P., immediately following article 578, is as follows:

“In cases where the defendant is entitled to be served with a copy of the indictment, he shall be allowed the two days’ time mentioned in the preceding article to file written pleadings after such service.”

Article 551 of said Code of Criminal Procedure provides that in every case of felony, when the accused is in custody, “or as soon as he may be arrested,” it shall he the duty of the clerk of the court to deliver a certified copy of the indictment to the sheriff, who shall serve same upon the defendant. Article 553 of said C. C. P., provides that when the defendant, in case of felony, is on bail at the time the indictment is presented, it is not -necessary to serve him with a copy. Article 557 of said C. O. P. provides that no arraignment of the defendant shall take place, until the expiration of at least two entire days after the day on which a copy of the indictment was served on the defendant, unless the right to such copy or to such delay be waived, or unless the defendant is on bail.

Having in mind these related Statutes, we turn to Evans v. State, supra, cited by appellant. The accused in that case was arrested following the filing of a complaint in the county court, and before the filing of any information thereon. The information was filed on the day the case was called for trial. Appellant sought to have the court hold him illegally arrested, in which contention he was not upheld; but he also moved for the two days in which to prepare and present written pleadings, and this court held him entitled to said two days. Before discussing the application of these articles and the Evans Case to the instant case, we desire to state further that in the case before us appellant gave bond before a magistrate sitting as an examining court on the 13th of November; said bond binding him to await the action of the grand jury at the succeeding term of the district court. Being desirous of visiting his father in a distant part of the state, appellant made arrangement through his attorney with the officers that said attorney should be notified, if an indictment was returned, and that, he should be furnished a new bond in such case, so that appellant might not be sought for and re-arrested or further disturbed until it was necessary for him to be at court.

We might dispose of appellant’s contention on the ground that this arrangement and agreement amounted to a waiver on his part-.The arrangement called for notification to his attorney of the fact of the return of an indictment. Such arrangement seemed to contemplate that no capias should be issued under the terms of article 507 of our C. C. P., and the record before us fails to show that any such capias was issued for appellant. If it could be done, such arrangement would seem to be a waiver of the fixing of the amount of bail by the district judge as is required in article 337 of our O. G. P. in cases when the court is in session, when.a capias is issued and a defendant is arrested. There is no showing that bail was fixed by the court as said article requires. The bill of exceptions complaining of this matter is qualified by a statement of the learned trial judge of the fact that appellant was not arrested on December 3d, the day the case was called for trial, and no re-arrest of him was deemed necessary.

But if not disposed of upon the ground of appellant’s waiver, we perceive no reason, in view of the statutes above quoted and of the Evans Case, supra, cited by appellant, to hold him entitled to two days “after his arrest.” We are controlled by the bill of exceptions, and by its qualification if properly placed thereon. If in fact appellant was not arrested, then the condition named by article 578, 0. O. P., under which he is entitled to the two days, did not arise. As we understand the Evans Case, supra, the accused therein was not given two full days from the date of his arrest, but, being already arrested, was held entitled to tfie two full days from the date the state filed its pleadings. A prosecution cannot be carried on in the county court upon a case originating in said court by complaint only. There must be an information. The information being filed on the day the case was called for trial, appellant could not otherwise have had the two fulí days referred to in article 578 in which to file his written pleadings in reply to the state’s pleadings. Suppose we apply the doctrine of the Evans Case to the facts in the instant case? In this case appellant was under arrest and legally so. The state’s pleading was filed on November 21st, or 14 days before the day the case was set for trial. If then appellant’s right to the two days, when he is under legal arrest already, arises upon the filing of the state’s pleadings, as held in the Evans Case, his right to such time began on November 21st and had fully expired on December 3d.

If we comprehend the effect of the articles of the Code above referred to, they differentiate the rights of one in custody at the time an indictment is returned, or who is thereafter arrested, from those of one who has already been arrested on the same charge and enlarged upon bail. The man-who is in custody is entitled to a copy of the indictment, and cannot be arraigned for two days thereafter under the terms of article 557, O. 0. P.; nor can he, under the terms of article 579, be brought to trial when he is entitled to service of a copy of the indictment until two days thereafter, but these rights do not inure to the man who has already been arrested and is on bail. He is entitled to a copy of the indictment when he asks for it, but may be put legally to trial at any time the ease is properly set. As it would be unreasonable to require the accused to go to trial until two full days after the state’s proper pleading has been filed in any event, if appellant desires to avail himself of said two days, so it would be unreasonable to grant him the two days, when he has already been arrested on said charge, and may procure a copy of the indictment at any time upon application therefor.

We have examined the other matters set out in appellant’s motion, and deeming them without merit, and being unable to agree with appellant in the contention above discussed, the motion for rehearing will be overruled. 
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