
    DEAL v. STATE.
    (No. 8929.) 
    
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1925.
    Rehearing Denied Feb. 18, 1925.)
    1. Criminal law <&wkey;l 122(3,4) — Court cannot determine whether charge on accomplice testimony was harmful error, where it has no knowledge of proof made.
    • Where appellate court is without knowledge of proof that was made, it cannot determine whether harmful error was committed in giving alleged objectionable charge on accomplice testimony and refusing defendant’s special charge on same subject.
    2. Criminal law t&wkey;l 144(13) — In absence of statement of facts, evidence'presumed sufficient to support verdict.
    ■ In absence of statement of facts, evidence is .presumed sufficient to support verdict.
    On Rehearing.
    3. Criminal law &wkey;>72l (3) — Remark held not reversible error as comment on defendant’s failure to testify, where not known whether accused would testify or not.
    Remark of state’s attorney, if “he wants to put defendant on the stand, we will let him be put on,” held not reversible error as comment on defendant’s failure to testify, it being in nature of an objection to a statement by defendant’s counsel as to what he had said, and it was not then known to state’s counsel whether accused would be a witness or not.
    4. Criminal law <&wkey;>I099(l) — Statement of facts not approved by trial judge not considered.
    A statement of facts not approved by trial judge will not be considered, even though it is properly before court by insertion in record.
    5. Criminal law <&wkey;1115(2) — Overruling of motion to quash panel sustained, where evidence in support of motion not shown.
    Where truth of matters upon which motion to quash jury panel was based do not appear either by statement of facts or bill, of exceptions, appellate court will uphold overruling of motion.
    Appeal from District Court, Eastland County; E. A. Hill, Judge.
    Burette Deal was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    J. Lee Cearley, of Cisco, for appellant.
    Tom Garrard, State's Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
    
      
       For opinion on second motion for rehearing, see 269 S. W. 433.
    
   MORROW, P. J.

The offense is the manufacture of. intoxicating liquor; punishment fixed at confinement. in the penitentiary for one year.

There is no statement of the evidence heard upon the trial.

We understand from bill of exceptions No. 2 that during the progress of the trial state’s counsel, in the presence of the jury, said:

“If he wants to put the defendant on the stand, we will let him be put on.”

This occurred while the appellant’s counsel was addressing the court with reference to the admissibility of certain testimony touching declarations of the appellant, the admission of which the state opposed. Appellant objected to the' remark, and the court instructed the jury to disregard it. We fail to find anything in the bill showing that the appellant did not become a witness. Complaint of the refusal of the accused to testify cannot be sustained when it is not shown by the bill that the accused did not testify. Quinney v. State, 86 Tex. Cr. R. 358, 216 S. W. 882; Tillman v. State, 88 Tex. Cr. R. 10, 225 S. W. 165; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405.

The court instructed the jury that the witness Prickett was an accomplice, and informed the jury of the law touching the necessity for corroboration of an accomplice witness. The language selected by the court is like that in Campbell’s Case, 57 Tex. Cr. R. 302, 123 S. W. 583. This charge has been criticized as inaccurate in some respects and as not applicable to every case. See Anderson v. State, 95 Tex. Cr. R. 352, 254 S. W. 986 (motion for rehearing). Whether in a given case the use of the charge mentioned or the failure to give an accurate one would work a reversal would depend upon the facts which were before the jury. Without knowledge of the proof that was made, this court is not in a position to determine that in giving the charge mention%d and in refusing the appellant’s special charge on the subject of accomplice testimony harmful error was committed. See Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188; Watson v. State, 90 Tex. Cr. R. 583, 237 S. W. 298.

There was no error shown in refusing to instruct the jury to acquit the appellant. The evidence, aside from that of the ae-i complice, may have been ample.

In the absence of a statement of facts, the presumption is indulged in favor of the judgment that the evidence was sufiicient to support the verdict.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant urges that the remarks of the state’s attorney during a discussion between counsel for the parties and the court respecting the admission of certain testimony, to the effect that, if “he wants to put the defendant on the stand, we will let him be put on,” was a reference to the failure of the defendant to testify which, ought to, be held by us reversible error. The bill as it-appears in the record shows that, while the' trial was progressing and appellant’s attorney was making an argument to the court, he referred to what the defendant had said, in reply to which the state’s attorney made the remark complained of. This appears to us to be in the nature of an objection on the part of state’s counsel to a statement by appellant’s counsel as to what he had said; there being nothing before the court to justify appellant’s counsel in his reference. The evidence had not closed, and it was -not then known to state’s counsel, apparently, whether the. accused would be a witness or not. We do not think it violative of the rules.

Appellant has filed in this record a statement of facts agreed to by both counsel for the state and the defendant, within the time allowed for-filing of the- statement of facts herein, and asks us to issue a writ of. certiorari to compel the perfection of this record. Inasmuch as the statement of facts is not approved by the trial judge, even if it should be properly before us by insertion in the record, we could not consider it. In or-> der to call upon this court to.pass upon a statement of facts, it must bear the approval of the trial judge.

Appellant also asks us to consider another matter which is not properly before us. A motion was -made to quash the jury panel upon facts therein stated. The truth of the matters so averred are not made to appear either by a statement of facts or a bill of exceptions filed during term time. In the absence of some such showing, we must uphold the correctness of the action of the lower court in overruling said motion.

Being unable to agfee with any contention made, the-motion for rehearing will-be overruled. 
      <g=s>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     
      (&wkey;?For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     