
    HAWKINS v. STATE.
    (No. 3684.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    1. Criminal Law <&wkey;1098 — Appeai^-Statement off Pacts — Form.
    A statement of facts, made up of questions and answers, cannot be considered; there being no statement by the judge in approving the statement that this was necessary, and it not appearing to have been necessary.
    ■ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2865; Dec. Dig. 1098.]
    2. Criminal Law <&wkey;778 — Instructions — Burden off Prooe.
    An instruction that in all criminal cases the burden of proof is on the state is usually sufficient, unless there is some peculiarity about the case requiring the court to charge further that the burden never shifts to defendant, especially where there is no proper statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 185A-1857, 1960, 1967; Dec. Dig. &wkey;778.]
    3. Criminal Law <&wkey;330 — Burden off Pro off.
    There are instances in which the burden of proof is, or may be, placed on defendant; but this usually applies to special matters, like nonage and insanity, and does not include any case until after the state has made out a case overcoming the presumption of innocence and reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 721; Dec. Dig. &wkey;>330J
    4. Criminal Law &wkey;>1119 — Record — Matters Presented eor Review.
    Where defendant, a negro, received the minimum punishment for the offense of which he was convicted, and there was no statement of facts which could be considered, the prosecuting attorney’s allusion in harsh and bitter terms to the negro race was not ground for reversal, as the facts may have been overwhelming.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. c&wkey;> 1119.]
    5. Criminal Law <&wkey;720 — Argument of Counsel.
    Prosecuting attorneys in their argument should confine themselves to legitimate deductions from the facts as they apply to the law of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. <&wkey;> 720.]
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.
    John Hawkins was convicted of robbery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of robbery with firearms; his punishment being assessed at five years’ confinement in the penitentiary.

The statement of facts is made, up of questions and answers. The motion of the Assistant Attorney General to strike out and not consider the evidence will be sustained. Under all the authorities, and under our law, a statement of facts in this condition cannot be considered. There is no statement by the judge in approving the statement of facts that this was necessary, and in fact it seems not to have been necessary to so arrange the evidence.

Appellant requested the court to charge the jury that .the burden is on the state, and never shifts to the defendant. This charge was refused. In the charge of the court this language is found: “In all criminal cases the burden of proof is on the state.’’ Usually this is sufficient, and will be treated so, unless there is some peculiarity about the case that will require the court to give the other phase of it, to wit, that the burden never shifts to the defendant. There are instances in which the burden is or may be placed on the defendant;' but that does not include any case until after the state has made out a case overcoming the presumption of innocence and reasonable doubt. That rule usually applies to special matters, like nonage and insanity. We think that the court gave a sufficient charge on this proposition as presented by this record, and especially in the absence of a statement of facts.

The district attorney made some rather vigorous remarks with reference to the negro race, defendant being a negro, and alluded to that race in harsh and bitter terms. Objection was urged to this by appellant’s counsel. The bill recites that the court did not stop the district attorney, nor did he charge the jury to disregard the remarks. However that may be, as the record is presented, the defendant received the minimum punishment. The facts may have been overwhelming. The error is not thought to be of such a nature, under the circumstances, as to require a reversal. ITad the defendant received a punishment above the minimum, we might have quite a different proposition, and would, in the mind of the writer, have a very serious question in the case. We wish again to admonish the prosecuting officers against such speeches. Such remarks ought not to be permitted, nor ought they to be indulged, and we again request the trial courts to use judicial authority in regard to these matters. They are unnecessary, and often lead to reversal of cases, when without it such reversal might not occur. Prosecuting officers should confine themselves to legitimate deductions from the facts as they apply to the law of the case. This is enough, and a conviction secured by means independent of the admitted facts frequently brings about reversals. It is, however, under the circumstances, thought not advisable to reverse this judgment for these improper remarks.

The judgment is ordered to be affirmed. 
      (Sx^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     