Scott v. State , 101 Tex. Crim. 598 ( 1925 )

LATTIMORE, Judge.

Conviction in the district court of Wichita County for possession of intoxicating liquor; punishment fixed at one year in the penitentiary.

The facts amply support the conclusion of the jury. Bills of exceptions Nos. 1, 2, 3, and 4 are so wholly devoid of any statement of the surrounding circumstances, or the facts attendant upon or precedent to the matters complained of, as that we are unable to find out whether same could have been hurtful to the accused. To select some isolated fact or disconnected statement or single occurrence and merely state in a bill of exceptions that it was said or took place, without any showing of the surroundings, is not enough. AVe need cite no authorities to support the proposition that when a bill of exceptions is in such condition as that we cannot determine its error without searching through the entire statement of facts or transcript, it is not sufficient. Substantially what we have said is true of bill No. 5, which sought to have the jury charged by special instruction that evidence of other offenses had been introduced in evidence and such testimony could not be considered unless the jury believed beyond a reasonable doubt that the defendant was guilty of said other offenses. This is not an invariable rule applicable to such testimony in all cases. The accused may be asked, or witnesses may be asked, under some circumstances, if the accused has not been arrested and charged with crime. This may have been what occurred in the case before us. We cannot tell from the bill.

When an indictment contains two counts and the State announces, or the court for the State concludes, that the prosecution shall proceed upon only one count, such announcement being made at the conclusion of the introduction of the State’s testimony, the fact that this would be tantamount to an acquittal under the count thus abandoned, would not give the accused any right to plead this, which amounts in law to an acquittal, in bar to further prosecution under the remaining count. This disposes of appellant’s bills of exception Nos. 6 and 7.

Appellant’s exceptions to the court’s charge were as follows:

“(1) On the weight of the testimony.

(2) Suggests that there was testimony tending to show a sale of liquor.

(3) Does not properly limit the proof of other crimes.”

Such purported exceptions are too indefinite to call for any consideration at the hands of this court.

Appellant having been asked while on the witness stand if it was not true that he was under indictment in other felony cases, and the defense having introduced witnesses who testified to appellant’s good reputation, it was not •& transgression of the rules of legitimate argument for the State’s attorney, in reply to that of the defense counsel urging the good reputation of the defendant, to claim that the State spoke as to appellant’s reputation through the grand jurors who indicted him.

Complaint that the State’s attorney said to the jury: “We are trying to put a stop to the sale of poison,” in his argument — the bill setting out nothing further — presents nothing for our consider ation. This is true of the bill of exceptions complaining of the statement in argument by the State’s attorney as follows^ “He, the defendant, was sworn to tell the truth and did not tell it. ’ ’

The State’s attorney in his argument said: ‘We are going to try the other case; he had better get ready for trial.” This was objected to. In his qualification the court says it was charged by appellant’s attorney in his argument that the other cases against him were untried, and that it was inferentially stated that if there was anything in them they would have been tried, and that in reply to this the State’s attorney made the statement objected to. The statement of the county attorney that he liked appellant and hated to prosecute him was of no materiality.

We have examined all the complaints made by appellant and have referred to most of them. None of them present any error. The judgment will be affirmed.

Affirmed.