Harris v. State , 94 Tex. Crim. 5 ( 1923 )

Appellant was convicted in the District Court of Jones County of the offense of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.

The court refused a continuance. Without contradiction it appears that appellant was arrested on the 3d of June, 1922, charged with this offense, and on the 5th of said month was brought into open court and his case then set down for trial on June 26th. No subpoena was asked for the absent witnesses until June 20th. This was not sufficient diligence. The testimony of the absent witnesses would be material only for the purpose of impeachment. A refusal of a continuance because of the absence of witnesses for said purpose would not be reversible error. Other witnesses testified to substantially the facts sought from said witnesses.

Appellant has three bills of exception, one complaining of the refusal of the continuance above mentioned; another of the finding of certain whisky and a still upon premises of appellant by the officers at the time of his arrest. The matter complained of in this bill of exceptions has been decided adversely to the contention of appellant in the case of Welchek v. State, No. 7136, opinion handed down November 22, 1922, 93 Tex. Crim. 271.

The only remaining bill of exceptions complains of remarks made by the district attorney in his closing argument to the jury. The remarks of said attorney as set out in the bill of exceptions are quite lengthy and seem to evidence a reply of said attorney to some argument theretofore made by the attorney for the appellant, and as approved by the trial judge seems to present no error. It is stated in said approval that the argument of State's attorney was in reply to argument of the attorney for the defense. We find in the record two special charges asked on behalf of appellant instructing the jury that they could not consider said remarks of the prosecuting attorney, both of which were given. It is insisted on behalf of appellant that a statement by said attorney in substance as follows: "There is in all probability witnesses in this courtroom now who testified for the defendant who, if they would tell the truth, would testify that they had bought whisky from the defendant and had drank this whisky," was highly prejudicial. It is manifest that this states but an opinion of the attorney and that it is so framed as that the jury could not escape the fact of knowing that it was merely such opinion. We would not deem this to be any statement of a fact so prejudicial to appellant as to require a reversal in the face of the instructions of the court to the jury not to consider said argument. The evidence while conflicting is admitted in appellant's brief to be sufficient to sustain the verdict.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON REHEARING. March 21, 1923.