
    KEMP v. STATE.
    (No. 7577.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1923.
    Rehearing Denied Dec. 12, 1923.)
    1. Criminal law &wkey;738(4)— Prosecutor’s erroneous argument held cured by instructions to disregard it.
    The prosecuting attorney’s argument to the jury’that defendant’s application for suspended sentence was an admission of guilt, though obnoxious to fairness, was cured by instructions to disregard it, since it injected no new fact into the record.
    2. Criminal law <&wkey;730(7) — Prosecutor’s argument held cured by instruction to disregard it.
    Where accused, who was chopping wood in front of a still over a fire, fled when the officers arrived, and fell or ran into the creek, and 32 cartridges for an automatic gun were' found in his pockets, the prosecutor’s argument from the evidence that he jumped into the creek to throw his pistol in, if not warranted by the evidence, was cured by an .oral instruction to disregai'd it, although the court refused a written instruction to the same effect.
    3. Criminal law <&wkey;lll9(4) — Prosecutor’s statement that defense was a frame-up held not reversible error.
    In the absence of information as to the connection in which a statement of the prosecuting attorney was made or what preceded or followed it, the admission of a statement that the defense was a “frame-up” was not reversible error.
    On Motion for Rehearing.
    4. Intoxicating liquors &wkey;>236(4) — Facts held to show defendant’s knowledge of whisky still.
    , Evidence held to show that a whisky still was in operation within defendant’s knowledge.
    5. Criminal law -t&wkey;323 — Flight from still held to imply guilty knowledge.
    Defendant’s flight from a still for which he was splitting wood when the officers arrived implied guilty knowledge.
    6. Intoxicating liquors &wkey;>l67 — Defendant taking part or encouraging others to manufacture whisky held to constitute him a principal.
    Whether defendant was actually taking part in the manufacture of whisky or was encouraging those who within his knowledge were so engaged, he was a principal offender.
    7. Criminal law <5&wkey;59( I)— Principal offenders equally culpable.
    Principal offenders are equally culpable, and^may be charged directly with the act.
    8. Criminal law <&wkey;4038(3), 1056(I) — Absence . of exception or request for special charge held to prevent review of failure to charge on principals.
    Evidence that accused was directly connected with an unlawful act being sufficient, failure to charge on principals, even if appropriate, ■Would not be reviewable in the absence of a request for special charge or an exception to the main charge.
    Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.
    Clayton Kemp was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Dial, Melson, Davidson & Brim, of Sulphur Springs, for appellant. ,
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for manufacturing intoxicating liquor; punishment one year in the penitentiary.

Appellant was arrested while fleeing from a still found in operation by officers. Ten barrels of mash and a quantity of whisky were found. It is not necessary to describe in detail the equipment. A wood fire was under the boiler, and whisky was in actual process of manufacture.' ' Deputy Sheriff Ragland made two trips to the still. The first time he was alone. 1-Ie approached tó within 30 yards of it, and saw a man, whom he recognized afterward as Frank Sargent, pouring mash from one . barrel into another. Sargent was talking to some one whom Ragland did not see. Ragland then went about a mile, and returned with a number of men, who surrounded the place. Upon approaching this time appellant was seen near the still cutting or breaking wood. Witnesses with the posse heard the sound of wood cutting as they were advancing, which, from the sound, they located at or in the immediate vicinity of the still. When the officers called upon the men to surrender, Sargent and appellant both ran, and were shot and wounded by some of the arresting party. Appellant asserted an innocent purpose in his presence at the still. He claimed to be sick, and staying in the neighborhood hoping to regain his health ; that never having seen a still in operation and hearing of this one being near by he had gone there through curiosity to see it. He denied any connection with or interest in the making of the whisky; specifically denied.keeping up the fire under the-still, or cutting or breaking wood to be used for that purpose. This defensive issue was presented to the jury, and determined for the state.

Appellant had filed application for suspended sentence. During the argument of the county attorney he said:

“When a man comes in the, courthouse and makes application for suspended sentence, a jury can read between the lines — and does do it — he says that he is guilty.”

The learned trial judge instructed the jury not to consider such statement of the prosecuting officer, and told them pointedly in the charge that an application for suspended sentence was not an admission of guilt. The argument has been held erroneous in a number of cases. See Tamaya v. State, 89 Tex. Cr. R. 190, 230 S. W. 146; Parker v. State, 89 Tex. Cr. R. 555, 232 S. W. 497. Why prosecuting officers will continue to make this kind of a statement in the face of the statute (article 865b, C. C. P.) and the repeated holdings of this court we do not quite understand. Zeal for the interest of the state is commendable, but should not lead to unauthorized statements obnoxious to fairness. Recognizing that in argument attorneys for both the state and accused are permitted wide latitude, this court has been loath to hold improper argument reversible error where the court promptly corrected it, unless new and injurious facts were thereby injected, or unless the argument was so obviously harmful that in our judgment its effect could not be counteracted by instructions from the court. Such is the effect of the opinion in Smith v. State, 55 Tex. Cr. R. 563, 117 S. W. 966, cited by appellant. See, also, Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Woolly v. State, 93 Tex. Cr. R. 384, 247 S. W. 865; Clancy v. State, 93 Tex. Cr. R. 380, 247 S. W. 865. So far as we have been able to ascertain, no case has been reversed by ibis court on account of such argument as here complained of, unless the court refused an instruction to disregard it. The statement complained of injected no new facts in the record. That accused had filed application for suspended sentence waS of course already known to the jury. The attorney’s statement was his opinion as to the effect thereof, and the jury were promptly told by the court that he had drawn an incorrect conclusion. Under the facts of this ease we believe we would be unauthorized to reverse' the judgment in view of the court’s action.

When Sargent and appellant were called upon to surrender, they both i;an away from the still, and either fell or ran into the creek. Appellant was shot, and claimed this was what caused him. to fall in the creek. There were found in appellant’s pocket 32 cartridges for an automatic gun or pistol. During the argument the district attorney told the jury that “the defendant jumped in the creek to throw the pistol in the creek.” This argument was excepted to as having no support in the evidence. Upon request the court instructed the jury orally at the time not to consider this argument, but declined to give a written instruction to the same effect, and explained his refusal to do so by the statement that the district attorney said at the time the argument was objected to that he was drawing a conclusion from the evidence; that the court declined to give the written instruction, believing he had been in error in giving the oral instruction theretofore. The learned trial judge may be right in his statement that he was in error in having instructed the jury in the first instance orally not to consider the argument. While there is no evidence in the record that appellant was armed with a pistol at the time, further than that the cartridges were found in .his pocket, yet the conclusion drawn by the district attorney does not seem to'be so “far fetched” as to be entirely unauthorized; but the court having orally instructed the jury not to regard the statement, we do not think the matter of sufficient consequence to warrant a reversal because of the failure to give the written instruction to the same effect.

Complaint is also made that the district attorney in his closing argument said, “that the defense is a frame up between defendant and Prank Sargent.” Appellant asked the court to instruct , the jury not to consider this argument, as it was not supported by the evidence. The learned trial judge declined to give the charge stating as his reason therefor that the statement made by the district attorney was a matter of argument, and that the attorney stated at the time it was only his conclusion from all the evidence introduced, The bill presenting this matter gives us no information as to the connection in which the statement complained of was made; nothing preceding or following it is given, but the complaint is made at the bare statement quoted. Even if an unauthorised deduction, we Cannot regard the argument as so obviously harmful as calling for a reversal.

An affirmance of the judgment is ordered.

On Motion for Rehearing.

MORROW, P. j.

According to the state’s testimony,' a still was found in operation with fire under it and whisky running out of it. Ten barrels of mash were at hand. The appellant was engaged in cutting wood about eight steps from the still, which had been in operation for some time; and about two gallons of whisky had been made. The officer, after locating the still, went away, and returned with others in his company to make the arrest. When the appellant and his companions were made aware of the presence of the officer and his posse, they fled. Prom these facts it is manifest that the still was in operation with the knowledge of the appellant. He was present, and was cutting wood, which might be used in the fire necessary to boil the liquid. This was a circumstance from which his participation in the enterprise might be inferred. His flight also implied guilty knowledge. Whether the appellant was actually taking part in the manufacture of the whisky or was by his words or acts engaged in encouraging those who, within his knowledge, were engaged in the unlawful act, he was a principal offender. Principal offenders are equally culpable, and may be charged directly with the act. Branch’s Ann. Tex. P. C. § 676. Also Cruit v. State, 41 Tex. 476; Dodd v. State, 83 Tex. Cr. R. 165, 201 S. W. 1014.

The evidence being sufficient to show that the appellant was directly connected with the unlawful act, the failure to charge on principals, even if such a charge had been appropriate, would not be reviewable in the absence of a request for a special charge or an exception to the main charge.

The defense of the appellant, developed from his evidence, was embraced in the charge given at the request of the appellant; namely, that, if he went to the still for the purpose of observing its operation, and had no interest in it, and did not engage in the manufacture of whisky, or if upon that subject a reasonable doubt was entertained, an acquittal should result.

The motion is overruled. 
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