# Brooks v. State > Court of Criminal Appeals of Texas · June 24, 1927 · 107 Tex. Crim. 546 URL: https://www.frixlaw.com/law-library/cases/3959074 ## Case - **Full name:** Lee Brooks v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 24, 1927 - **Citations:** 107 Tex. Crim. 546; 298 S.W. 422; 1927 Tex. Crim. App. LEXIS 500 - **Precedential status:** Published - **Opinion:** Addendum by Lattimore - **Judges:** Bethea, Lattimore - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3959074 ## Opinion text ON MOTION FOR REHEARING. LATTIMORE, Judge. — Appellant renews his complaint of what was said by the judge to the juror Wade on his voir dire examination. Appellant’s objection to this, as reflected by his single bill of exceptions was that same was a comment on the weight of the evidence; also further that this case being one of circumstantial evidence, said remarks were prejudicial to the rights of the defendant. In our original opinion we set out the facts and what was said by the court. Art. 707, C. C. P., forbids the judge — in ruling on the admissibility of evidence — to discuss or comment upon the weight of same. In the case before us the judge was not passing on the *550 admissibility of any evidence. We have no situation then before us in which such an exception could avail. The latter part of said Art. 707, supra, forbids the judge at any stage of the proceedings, before the return of a verdict, to make any remark calculated to convey to the jury his opinion of the case. If what was said to the juror Wade was of such character, and the matter was properly objected to and brought up, same might be serious. We must bear in mind that the trial court was apparently trying to get at the real attitude of Mr. Wade toward circumstantial evidence in order to properly pass on the state’s challenge of Mr. Wade as a juror, because he had said he would not convict on circumstantial evidence. To the court’s question to the juror as to whether he would convict on such character of testimony if same measured up to the rule laid down in the charge, he had said that frankly he did not feel that he could convict a man on circumstantial evidence; whereupon the court said that some time circumstantial evidence was more positive and better than direct evidence, and he then gave to the juror an illustration, purely hypothetical and not in any way on facts similar to the case about to be tried. This juror was still unconvinced and was excused. The remainder of the panel served without further objection, and the jury was composed of men who had no objection to convicting on circumstantial evidence. In Morrison v. State, 40 Tex. Crim. Rep. 490, we held it not error to illustrate to a juror the meaning of circumstantial evidence. Also in Brown v. State, 76 Tex. Crim. Rep. 316. We are inclined to think, however, such practice is not commendable. We think the case of Mercado v. State, 258 S. W. 180 , in no way condemns the fact of the use of an illustration, but does criticise the particular illustration used in that case as not being hypothetical.but as being a statement of a real case and its conclusion, said case being somewhat like the case on trial. Upon the question of prejudice to the other members of the panel, we find the authorities practically unanimous in holding that unless the remarks are obviously prejudicial, there must be a showing in some manner of injury therefrom. Furlow v. State, 41 Tex. Crim. Rep. 12; Murphy v. State, 57 S. W. 967 ; Ward v. State, 59 Tex. Crim. Rep. 62; McGaughey v. State, 74 Tex. Crim. Rep. 529. We further observe that if appellant did not want a trial of his case before the other members of the panel who heard the remarks of the court, he should have raised some objection to such proceeding. We find nothing in the record showing that appellant in anywise made known to *551 the trial court his objection to the remaining jurors. He made no motion to excuse the remainder of the panel, nor did he challenge any of them for cause, nor in any other way make any effort to have them disqualified or to bring before us any showing of prejudice or injury resulting from being tried by said panel, save the single proposition that he was not given the lowest penalty. It is difficult to read this record and escape the obvious conclusion of appellant’s guilt. The fact that he was conveying the quantity of liquor shown, and the further fact that on his trial he took the witness stand and admitted that he was driving the car in the night-time, which was found overturned, and on and around which were indisputable evidences of its having contained a quantity of liquor, yet he denied having had any liquor in the car at all. The jury having given appellant only two years under such facts, we are not at all inclined to think that his failure to get the lowest penalty shows any prejudice in the minds of the jury that tried him. Being unable to agree with the contentions made by appellant in his motion for rehearing, same will be overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3959074. Public record. Not legal advice.