
    WILLIAMS v. STATE.
    (No. 11200.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Rehearing Denied Jan. 18, 1928.
    1. Intoxicating liquors <§=>236(20) — Evidence that defendant carried whisky from place of' concealment held to sustain conviction of transporting intoxicating liquor.
    Testimony that witness, finding jar of whis-ky concealed, secreted himself and observed defendant alight from automobile, pick up whisky from place of secretion, and start back to automobile, held) to sustain conviction of transporting intoxicating liquor.
    2. Criminal law <§=>448(2) — State witness could testify to going where whisky was concealed, and that automobile carrying'-defendant was driven rapidly away toward town.
    In prosecution for transporting intoxicating liquor, state witness could properly testify that he and another officer went to pasture where whisky was concealed, that automobile in which defendant came to place where he got whisky was rapidly driven away toward town, and that witness called to driver, who did not stop.
    
      3. Criminal law <3=726 — Argument as to why defendant did not call out to automobile driver to come back, being in reply to defendant’s argument, was not error.
    In prosecution for transporting intoxicating liquor, where evidence showed defendant rode with another person to place of concealment of whisky, alighted, secured whisky, and was arrested while carrying it away, and driver drove rapidly away, argument of district attorney asking why defendant did not call out to driver to come back, as they were not violating any law, was not error, where it was in reply to defendant’s argument that he did not try to get away, and was not violating law, nor responsible for other party running off.
    4. Criminal law <©="721 (5) — Argument that it was uncontradicted that liquor found was corn whisky and intoxicating held not reference to failure of defendant to testify.
    In prosecution for transporting intoxicating liquor, where there was no testimony contradicting state’s witness that liquor taken from defendant’s possession was whisky, argument of state’s counsel that it was uncontradicted that it was corn whisky and intoxicating 7seM not ref-etence to failure of defendant to testify.
    On Motion for Rehearing.
    5. Criminal law <3=728(4) — Exception to argument must be sufficiently specific to call attention to point in mind of objector.
    Objection to argument as comment on failure of defendant to testify must be sufficiently specific, to call attention of trial court and reviewing court to point in mind of objector.
    6. Criminal law <3=1037(2) — In absence of showing that charge not to consider argument was asked and refused, reviewing court must be satisfied that argument was obviously hurtful.
    Where remarks of state’s attorney in argu-' ment were claimed to refer to failure of defendant to testify, in absence of showing that special charge that jury be told not to consider remarks was presented and refused, reviewing court must be satisfied' remarks were obviously hurtful before reversing conviction.
    7. Crimina! law <3=1171 (3) — Argument that it was uncontradicted that liquor transported was corn, whisky and intoxicating held harmless, in view of conclusive evidence and lowest penalty.
    Where evidence in prosecution for transporting intoxicating liquor was undisputed that defendant picked up jar of whisky from place of concealment and walked off with it, remarks of state’s attorney in argument that it was uncon-tradicted that it was corn whisky and intoxicating were not harmful, in view of conclusiveness of state’s testimony and assessment of lowest penalty by jury.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Tom Williams was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Chandler & Chandler, of Stephenville, for appellant.
    Sam M. Russell, Dist. Atty., of Stephen-ville, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The statement of facts consists of the testimony of only one witness. He testified that, in company with another officer, he discovered a jar of whisky covered up on the Hico road, about two miles south of Stephen-ville, in Erath county. Witness secreted himself and watched. Appellant and another man in a car appeared. They stopped the car not far from the whisky. They did not cut off the motor. Appellant got out of the car, climbed over the fence, walked to the point where the whisky was secreted', raked the leaves off, picked up the whisky, turned around, and started back to the car, and had gone about 15 feet with the whisky in his hand, when witness told appellant to put the whisky down and stick up his hands. The party in the ear drove rapidly away. We deem these facts amply sufficient to support the conclusion reached by the jury. Mendosa v. State, 106 Tex. Cr. R. 127, 290 S. W. 1100; Franco v. State, 105 Tex. Cr. R. 191, 287 S. W. 272; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097; Lambert v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Coburn v,. State, 96 Tex. Cr. R. 25, 255 S. W. 613.

Four bills of exception appear in the record. Each has been carefully examined. We deem it perfectly proper for the state witness to testify that he and the other officer went to the pasture where the whisky in question was found; also to state that the car in which appellant came to the place where he got the whisky was driven rapidly away; that witness called to the driver, who did not stop, but came away in the direction of town.

There is complaint of the fact that the district attorney said to the jury- in argument, “Why didn’t the defendant call out to him, ‘Come back here; we are not violating any law’?” The bill is qualified by the trial court, who states that appellant’s counsel had argued to the jury that appellant did not try to get away, was not violating any law, and was not responsible for the party running off in the car, etc., and the state’s attorney was only replying to this argument. We perceive no error in this argument.

Appellant has a bill of exceptions complaining of the fact that the state’s attorney said to the jury: “It is uncontradicted in this record that this was corn whisky and intoxicating” — it being contended that this was a reference to the- failure of the appellant to testify. "We are unable to agree with the contention. There is nothing in 'the record contradicting the testimony of the state witness to the fact that the liquor which was taken from the possession of appellant was whisky.

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

On Motion for Rehearing.

In a forcible motion for rehearing, appellant insists that we were wrong in regard to our holding that the argument of the district' attorney complained of showed no error. The argument is quoted in said opinion.

The objection to said argument, as revealed hy the bill of exceptions, was that it was a comment on the failure of the accused to testify, and was improper and prejudicial. The argument was so plainly not a reference to any failure of appellant to testify that we did not deem it necessary to .make any extended .analysis thereof to demonstrate this fact. None of the authorities cited by appellant in his motion for rehearing bear upon the question of error in commenting upon the failure of the accused to testify. The argument and all the authorities in said motion are entirely in support of the proposition that the silence of the accused when under arrest shall not be taken as a circumstance against him — a proposition uniformly upheld hy this court and all other authorities known to us. This proposition, however, is based on a. principle of law entirely different from the one advanced in the objection made. •

However, appellant insists that we give effect to the general grounds of exception shown in said bill, to wit, that the argument was improper and prejudicial. In view of the authorities in this state, it may be doubted whether such' an exception could be considered, since we uniformly hold that an exception must be specific and pointed, in order to call the attention of the court below and of this court to the very point had in mind by the objector. We cite Russel v. State, 96 Tex. Cr. R. 105, 256 S. W. 283; Wright v. State, 98 Tex. Cr. R. 513, 266 S. W. 783; Clevenger v. State, 96 Tex. Cr. R. 23, 255 S. W. 622; Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949; Hubbard v. State, 94 Tex. Cr. R. 480, 251 S. w. 1054; Greenwood v. State, 99 Tex. Cr. R. 160,. 268 S. W. 469. We further 'observe that no special charge was presented, asking that the jury be told not to consider the remarks of the district attorney. Leech v. State, 63 Tex. Cr. R. 339, 139 S. W. 1147; Wren v. State, 68 Tex. Cr. R. 75, 150 S. W. 440. In the absence of a showing that such charge was asked and refused, this court must be satisfied that the remarks were obviously hurtful. Kennedy v. State, 19 Tex. App. 634; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055.

We have no hesitation in saying that we cannot bring ourselves to believe that this record makes obvious the fact of any injury to appellant. On the facts the record shows that the officers had located a jar of whisky hidden at a certain point. Secreting themselves, they watched. About sundown a car came up and stopped near the hidden whisky, but the motor was not cut off. Appellant got out of the car, went directly to where the whisky -rtas hidden, uncovered it, picked it up, and started back to the car. He had gone about 15 feet when the officers discovered themselves and told him to stop. The man in the car ran away. These facts were undisputed, and made a plain case of transportation of intoxicating liquor. Mendosa v. State, 106 Tex. Cr. R. 127, 290 S. W. 1100; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097; Winters v. State, 101 Tex. Cr. 276, 275 S. W. 1015; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613. The jury gave appellant the lowest penalty. The facts being plain and undisputed, and the jury having given the accused the lowest penalty, there seems no room for dispute. No injury could have been inflicted by the argument.

The motion for rehearing will be overruled. 
      ©=>3?⅛ other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     