
    ANDERSON v. STATE.
    (No. 9993.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1926.
    Rehearing Denied March 23, 1927.)
    1. Criminal law <@=>739(1) — District attorney’s argument held not reversible error, where objection was sustained and jury orally instructed to disregard.
    Where objection to argument of district attorney complained of was sustained, and jury orally’ instructed not to consider same, and no written charge to disregard argument was tendered, no reversible error was shown.
    2. Criminal law <©=>451 (2) — 'Whether defendant could have been seen from certain position held properly excluded, where, from evidence, jury could draw own conclusion.
    In prosecution for manufacturing liquor, where witness was permitted to testify to character of obstruction between defendant and another at place where the other admitted he was, thereby enabling jury to form its own conclusion as to whether such other person could have seen defendant at still, it was not error to exclude question whether it was possible to have seen defendant from such position as calling for conclusion and substituting opinion of witness for judgment of jury.
    On Motion for Rehearing.
    3. Criminal law <@=>l 171(1) — Argument of district attorney, that jury should not say to bootleggers listening in courthouse that defendant was not guilty if they believed him guilty, held not reversible error.
    In prosecution for manufacturing liquor, argument of district attorney to convict if defendant was guilty and not to say “to bootleggers in courthouse listening that he is not guilty,” which jury was instructed to disregard, and argument that jury has right to believe spectators in courthouse were awaiting trial, objection to which was not acted upon, held not reversible error, in view of evidence sustaining conviction and minimum penalty assessed.
    4. Intoxicating liquors <@=3236(19) — Evidence held to sustain conviction, for manufacturing liquor, of defendant, apprehended while fleeing from raided stilL
    Evidence that defendant was apprehended after fleeing from distillery raided by ofScers and claimed to have been hunting, when invited by persons operating still to drink whisky, held-to sustain conviction for manufacturing whisky.
    5. Criminal law <@=>1171 (I) — Whether remarks of counsel were reversible error depends on particular facts of case (Vernon’s Ann. Code Cr. Proo. 1925, art. 648).
    Test as to whether remarks of counsel were reversible error is not governed by inflexible rule, but depends on evidence adduced and verdict of jury, in view of Vernon’s Ann. Code Or. Proc. 1925, art. 648.
    Commissioners’ Decision.
    Appeal from District Court, Hopkins County; J. M. Melson, Judge.
    Marvin Anderson was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    Dial & Brim, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, • J.

The offense charged is manufacturing liquor, and the punishment assessed is one year in the penitentiary.

Appellant’s first eomplaint is with reference to the court’s charge on the burden of proof. Paragraph 4 of the court’s main charge presents the matter in as favorable light as that asked by the appellant.

Bill No. 2 complains at the court’s refusal to give a special charge submitting the converse of the court’s charge on the law of principals, and in this connection complaint is further made at the court’s failure to submit in an affirmative way the defense interposed by the defendant. We observe that in paragraph 9 of the court’s main charge he fully and fairly submitted the converse of the law of principals, and an examination of the charge further shows that appellant’s defense was fully submitted to the jury.

Complaint is made at the argument of the district attorney. The bill shows that the objection to this argument was sustained and the jury orally instructed not to consider the same. The record further shows that appellant did not tender a written charge instructing the jury not to consider the argument, and under the record as presented we think reversible error is not shown. Stewart v. State, 71 Tex. Cr. R. 237, 158 S. W. 996; Strickland v. State, 71 Tex. Cr. R. 582, 161 S. W. 110; Chafino v. State, 69 Tex. Cr. R. 393, 154 S. W. 546; Kelly v. State, 68 Tex. Cr. R. 317, 151 S. W. 304.

Complaint is made at the court’s action in sustaining the state’s objection to the following question:

“Knowing the location and the growth of -the brush and brambles and briars in the woods, at that time of night, from the position where Tom Proctor and John Hatchett were, in your opinion, considering the character of night, wás it possible for any one to see the defendant from the position where Toip Proctor, the witness, testified he was at the time he saw the defendant about the still, moving jars, and doing something to the fire ?”

The record shows that this witness was permitted to testify as to the character of obstruction that was between Tom Proctor and the defendant at the place where Tom Proctor said he was, and the jury was thereby enabled to form their own conclusions as to whether or not Tom Proctor could have seen the defendant at the time and from the location he said he was in. It occurs to us that the question asked called for a conclusion of the witness, and one that it was not proper for him to give. On the contrary, we think the jury could draw its own conclusion from the facts shown. It was entirely proper, and, as we understand the record, the court permitted the witness to detail the obstructions, the character of the night, etc., and to have gone further and permitted the witness to have said that Proctor could not have seen the appellant in his judgment would have been equivalent to permitting the witness to substitute his opinion or judgment for that of the jury.

What has been said disposes of the questions presented by appellant, and finding no error in the record, the judgment is 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.

It appears from bill of exceptions No. 3 that during the trial there were a number of spectators in the court room, and that state’s counsel used the following language:

“Turn him loose if you don’t, believe him guilty; if you don’t believe he did the crime. And if the defendant is guilty and has manufactured such a diabolical defense as his defense seems to be, give him the highest penalty and don’t say to these bootleggers in the courthouse listening that he is not guilty.”

Upon objection by defendant’s counsel, the court verbally instructed the jury to disregard the statements, upon which the district attorney further remarked:

“I will say this: You and the district court try men. You have a right to believe you try men for the same offense, and you have a right to believe they are in the courthouse awaiting trial.”

This statement was also made the subject of objection, though the bill fails to show that the court acted upon it.

In the case of Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544, 545, Judge Davidson, in discussing an argument which was complained of as being improper, used this language:

“Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a ease of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true.”

A distillery was located upon the bank of a certain creek. After watching it, the officers raided it. The appellant and two others persons were present. According to the officers, these persons were engaged in operating the still. The appellant fled, but was pursued and captured by the officers. The still was complete, in operation, and making whisky. Mash and a quantity of whisky were found at the still. In the appellant’s testimony he explained his presence with the statement.that, while hunting opossums at night and hearing voices, he went to the still without knowledge of its location. Assurance that he was not an officer was demanded by and given to the persons who were present, after which they invited him to drink whisky. He remained for that purpose, and at a very short time after his arrival the raid was made.

When no constitutional provision or mandatory statute has been transgressed, there is no inflexible rule governing the action of this court in passing upon arguments. The test of the effect of the remarks of counsel can only be made in the light of the evidence adduced and the verdict of the jury. It has often been said that remarks are sometimes so obviously harmful that they cannot be successfully withdrawn. The general rule to the contrary, however, and we think, in the present instance, the evidence being quite sufficient to sustain the conviction, the penalty assessed being the lowest, and the court having withdrawn at least a part of the argument, that a reversal would not be authorized. In Vernon’s C. C. P. 1925, vol. 2, under article 648, p. 86, etc., are collated a great number of precedents reflecting the action of this court upon the complaints of arguments of counsel. Many that are pertinent to the present case are collated under note 36 p. 123. As stated above, however, with the exceptions named, the facts and the results, as well as the nature of the particular case, are controlling in passing upon the complaints of arguments upon appeal.

The motion for rehearing is overruled. 
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