Bracheen v. State , 128 Tex. Crim. 635 ( 1935 )

The offense is transporting whisky; the punishment, confinement in the penitentiary for one year.

Officers arrested appellant while he was transporting whisky. Prior to making the arrest the officers asked appellant to stop. Instead of complying with their request, he drove away but finally stopped his car and began breaking the whisky containers.

Appellant did not testify and introduced no witnesses.

Bills of exception 1 and 2 present the following occurrence: Witnesses for the State testified that they were present at the examining trial of appellant, which was held about three hours after the arrest, and that appellant's clothes were wet and smelled "like whisky." We think this testimony was relevant and material. The proof was to the effect that appellant broke the whisky containers and that the whisky ran out in the car and got on the clothes of appellant and his companion.

Bill of exception No. 3 recites that the district attorney, in argument to the jury, referred to appellant's counsel as being "a paid, unsworn witness in the case." The bill is qualified to the effect that appellant offered no testimony but that his counsel made an argument to the jury and that in his closing argument the district attorney contended that appellant's counsel had gone outside of the record and discussed matters not introduced in evidence. The bill is further qualified to show that the trial judge immediately sustained appellant's objection to the remarks of the district attorney and instructed the jury that said remarks should not be considered for any purpose. We think the bill is without merit.

Bill of exception No. 4 recites that the district attorney, in argument, stated: "We appeal to you for the protection of the fathers, mothers and girls of this country against bootleggers." The bill is qualified to show that at the time of his arrest appellant was transporting a quantity of whisky. Again, the qualification shows that appellant's objection was sustained and the jury instructed to disregard the argument for any purpose. Under the circumstances, we think the bill fails to reflect reversible error.

We deem it unnecessary to discuss bill of exception No. 5.

The judgment is affirmed.

Affirmed.

MORROW, P. J., absent.

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.