
    FAUBION v. STATE.
    (No. 9554.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.)
    1. Criminal law <&wkey;!87, 290 — Bar of former conviction held not available, where plea of former conviction was not filed, and other conviction had not become final at date of trial, and no motion for continuance was filed (Code Cr. Proc. 1925, arts. 508, 509).
    Bar of former conviction held not available, where plea of former conviction was not filed, as required by Code Cr. Proc. 1925, art. 508, and not verified by affidavit, as required by article 509, and where other conviction had not become final at the date of the trial and no motion for continuance was filed.
    2. Criminal law <&wkey;>723(4) — District attorney’s argument that jury had power to acquit, but he did not think they had any legal or moral right to do so, and asking, if they did, what explanation they could give, held not cause for reversal.
    Argument of district attorney that jury had power to acquit the accused, but that he did not think they had any legal or moral right to do so, and, if they did, he asked them what legal or moral explanation they could give, held not cause fori reversal.
    3. Criminal law &wkey;>726 — Refusal to instruct to disregard district attorney’s argument that accused had not asked for mercy or pleaded guilty or asked for suspended sentence or said aught held not reversible error, when made in response to accused’s counsel’s argument.
    Refusal to instruct to disregard argument of district attorney that accused had not asked for mercy or pleaded guilty, or even asked for suspended sentence or said aught, was not reversible error, when the argument was made in response to the argument of accused’s counsel.
    d&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    'Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. L. Faubion was convicted of forgery, and he appeals.
    Affirmed.
    Umphres, Mood & Clayton, of Amarillo, 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 is forgery, and the punishment is five years in the penitentiary.

By cross-examination of the state’s witnesses, and in oral argument, the appellant sought to plead former conviction as a bar to the prosecution in this case, claiming this was the same transaction for which he was convicted in cause No. 2794.

Appellant filed no plea of former conviction. This is necessary under the statute. Article 508, C. C. P., 1925 Revision. Not only must the plea be filed, but it must be verified by the affidavit of the appellant. Article 509, supra. The record also fails to show that the judgment of conviction in cause No. 2794 had become final at the date of the trial in the instant case, and no motion for a continuance was filed.

By bill of exceptions No. 1, appellant complains at the court’s action in calling this case out of its order on the docket. This bill fails to show any abuse of the court’s discretion in this matter or any injury or injustice done the appellant. Stevens v. State (Tex. Cr. App.) 49 S. W. 105.

Under the court’s qualification of the bill raising the matter, special charge No. 3 was properly refused. As explained by the court, the district attorney did not tell the jury, as claimed by appellant, that they would be at a loss to explain the verdict to their friends if they acquitted the defendant, but, on the contrary, told them that they had the power to acquit the defendant, but that he, the district attorney, did not think they had any legal or moral right to do so, and, if they did so, he asked them what legal or reasonable_ explanation they could give anybody for so doing. We think this was" not such argument as would call for a reversal of the ease.

By special chargeNo.'5 appellant sought to have the jury instructed to disregard the district attorney’s argument to the effect that defendant had not asked for mercy, or pleaded guilty, or even asked for a suspended sentence, or said aught. In signing this bill, the court certifies to facts which, if true, show that this argument was made in response to that made by the counsel representing the appellant.

There being no reversible error in the record, the judgment is in all things 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.  