Moore v. State , 144 Tex. Crim. 145 ( 1942 )

In his motion for rehearing appellant makes the same contentions which he made on the original submission of this case. He first re-asserts that the trial court failed in his charge to the jury to limit and restrict the testimony introduced by the State in rebuttal of that introduced by the appellant relative to his good reputation in support of his plea for a suspension of sentence in the event of his conviction. The bill complaining thereof is qualified by the court who states in his qualification that appellant objected to the court's charge because it failed to limit the jury in their consideration of said testimony to the purpose of determining whether they would recommend the suspension of sentence in case they found him guilty and assessed his punishment at confinement in the state penitentiary for a term not exceeding five years; that upon the presentation of said objection he then amended his charge and did limit and restrict the jury in their consideration of said evidence to the purpose for which it might be considered by them; that appellant then again objected to the court's charge because it was a limitation on the testimony; that the jury had a legal right to consider it for all purposes in passing on the guilt or innocence of the defendant, etc.; that thereupon the court withdrew said paragraph from his charge. Appellant accepted the bill with the qualification and is bound thereby. A defendant will not be heard to complain of the court's action in withdrawing certain paragraphs from his charge to which objections were addressed in due time, as in the instant case. See Frazer v. State,268 S.W. 164, 99 Tex.Crim. R..

After a most careful review of the record in the light of all appellant's other contentions, we remain of the opinion that the case was properly disposed of on the original submission thereof. We therefore overrule the motion for rehearing.

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.