Cooper v. State , 66 Tex. Crim. 441 ( 1912 )

On a former day of this term this case was affirmed. Appellant has filed a motion for a rehearing, in which he calls our attention to the fact that we did not pass on bill of exceptions No. 17. The judge who tried the case specifically declined to approve the bill as drawn in notations at the bottom, and does not certify to the facts. For this reason we did not deem it necessary to do so. However, as appellant insists that we treat the bill, it is to remarks of the district attorney. Appellant neither presented nor asked any charge in regard thereto; no request was made of the court to instruct the jury not to consider such remarks, if made, and as thus presented it would present no error. Pennington v. State, 48 S.W. Rep., 507; Spencer v. State, 34 Tex.Crim. Rep.; Barber v. State,35 Tex. Crim. 70, and cases cited in Buckley's Digest, Argument of Counsel, subdivisions 171 and 170.

Appellant also complains of the action of this court in holding him bound by the qualifications of the judge to his bills. This has been the unbroken rule of decision in this court. (See section 861, White's Ann. Code of Criminal Procedure.) If he did not wish to be bound by the qualification of the judge, his remedy is plainly pointed out in Blain v. State, 34 Tex.Crim. Rep..

The motion for rehearing is overruled.

Overruled.