Deal v. State

• Decision Date: 07 January 1925
• Docket Number: (No. 8929.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 268 S.W. 746
• Parties: DEAL v. STATE.
• Court: Texas Court of Criminal Appeals

268 S.W. 746

DEAL v. STATE.

(No. 8929.)^*

Court of Criminal Appeals of Texas.

January 7, 1925.

Rehearing Denied February 18, 1925.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Burette Deal was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

J. Lee Cearley, of Cisco, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

There is no statement of the evidence heard upon the trial.

We understand from bill of exceptions No. 2 that during the progress of the trial state's counsel, in the presence of the jury, said:

"If he wants to put the defendant on the stand, we will let him be put on."

This occurred while the appellant's counsel was addressing the court with reference to the admissibility of certain testimony touching declarations of the appellant, the admission of which the state opposed. Appellant objected to the remark, and the court instructed the jury to disregard it. We fail to find anything in the bill showing that the appellant did not become a witness. Complaint of the refusal of the accused to testify cannot be sustained when it is not shown by the bill that the accused did not testify. Quinney v. State, 86 Tex. Cr. R. 358, 216 S. W. 882; Tillman v. State, 88 Tex. Cr. R. 10, 225 S. W. 165; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405.

The court instructed the jury that the witness Prickett was an accomplice, and informed the jury of the law touching the necessity for corroboration of an accomplice witness. The language selected by the court is like that in Campbell's Case, 57 Tex. Cr. R. 302, 123 S. W. 583. This charge has been criticized as inaccurate in some respects and as not applicable to every case. See Anderson v. State, 95 Tex. Cr. R. 352, 254 S. W. 986 (motion for rehearing). Whether in a given case the use of the charge mentioned or the failure to give an accurate one would work a reversal would depend upon the facts which were before the jury. Without knowledge of the proof that was made, this court is not in a position to determine that in giving the charge mentioned and in refusing the appellant's special charge on the subject of accomplice testimony harmful error was committed. See Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188; Watson v. State, 90 Tex. Cr. R. 583, 237 S. W. 298.

There was no error shown in refusing to instruct the jury to acquit the appellant. The evidence, aside from that of the accomplice, may have been ample.

In the absence of a statement of facts, the presumption is indulged in favor of the judgment that the evidence was sufficient to support the verdict.

The judgment is affirmed.

* For opinion on second motion for rehearing, see 269 S. W. 433.

On Motion for Rehearing.

LATTIMORE, J.

Appellant urges that the remarks of the state's attorney during a discussion between counsel for the parties and the court respecting the admission of certain testimony, to the effect that, if "he wants to put the defendant on the stand, we will let him be put on," was a reference to the failure of the defendant to testify which ought to be held by us reversible error. The bill as it appears in the record shows that, while the trial was progressing and a...