The opinion
ON REHEARING.
January 17, 1923.
LATTIMORE, Judge.
Two reasons are urged why appellant’s motion for rehearing should be granted. It is contended that reversible error arises from a question propounded to appellant by the State’s .attorney as to the fact that he did not tell to the grand jury a certain matter now testified to by him as a witness on this trial. The question asked is not set out in our former opinion. It was as follows: “This time you tell about this man running around Mr. Mitchell and this woman on the platform after you had called him out, you didn’t tell the grand jury about that.” The question was not answered. We .adhere to our former holding that the mere asking of said question, objection to which was sustained, would constitute no error. Huggins v. State, 60 Texas Crim. Rep., 214 ; Siars v. State, 63 Texas Crim. Rep., 567 ; Clark v. State, 74 Texas Crim. Rep., 464 , 169 S. W. Rep., 895 . In addition we observe that the statement in the bill of exceptions that the objection was for the reason that appellant was in jail .and unwarned, is not tantamount to a showing of such condition as a fact. Morales v. State, 36 Texas Crim. Rep., 247 . Aside from the statement of his objection based on the proposition of arrest and lack of caution, there appears nothing in the bill of exceptions showing the truth of such fact or that appellant had not voluntarily appeared before the grand jury, or that he had not been warned prior to such appearance.
It is also urged that we were in error in not reversing because of .the argument of the State’s attorney in which he referred to appellant
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as a confessed bootlegger. The bill of exceptions complaining of this argument has appended to it the following qualification:
“I approve this bill of exception with this qualification: As a motive for the defendant committing the offense charged against him the State introduced evidence showing or tending to show that the defendant had been guilty of selling intoxicating liquor in violation of either State or National prohibition law, and that the defendant was uneasy that the injured party E. L. Mitchell would report him to the officers of the law or the dining car company, and that by reason of the fact that he could not procure a promise from said injured party not to .report it, that he was shoved off of the train, and in reply to argument of defendant’s counsel, that no motive was shown, the State’s attorney. F. M. Scott, in closing the argument used the language complained of with reference to the defendant being a bootlegger.
“Defendant’s counsel asked no charge to the jury covering this alleged improper argument.”
Appellant cites Davis v. State, 114 S. W. Rep., 373 . In said case Judge Ramsey cites many authorities and states the following rules:
“We think, however, the true rule in respect to this matter may be thus stated: That, unless the remarks of counsel for the State are obviously of a character to impair the rights of the defendant or prejudice his case before the jury, such remarks, though improper, will not be considered for reversal, unless a charge was asked and refused and exception reserved. (Lancaster v. State, 36 Texas. Cr. Rep., 16, 35 S W., 165), and that it follows as a necessary corollary from this doctrine that where the improper argument is of such a grave character as to render it obviously injurious and hurtful, and the matter is properly preserved by bill of exception, that the fact that no special charge was asked instructing the jury to disregard same will not, of itself, deprive the appellant, in a proper case, of reversal of a judgment of conviction.” Lancaster v. State, 35 S. W. Rep., 165 and Taylor v. State, 11 S. W. Rep., 462 , are also cited, but while announcing general rules which are well known, no aid is furnished us. by said authorities in passing upon the argument used herein inasmuch as that passed upon in each of them was so totally different and the matter appearing in each of them so obviously hurtful. In the instant case appellant was the waiter on a dining car of which Mitchell, the injured man, was steward. When said train reached Texarkana on its trip south, before the north-bound trip on which the alleged assault occurred, the following took place as appears from Mitchell’s testimony:
“He ran out into the vestibule and I went out after him to see what he was doing; when I got there there was a colored fellow standing there and had a bottle in his hand. So I grabbed the bottle to see what it was and there was something in it; I didn’t read the label or anything like that. I handed it back to the fellow and came back in the car.
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“I handed it back to the other fellow, not Staten, same man I took it from. This happened at Texarkana on our trip down from St. Louis to San Antonio. When I got a chance I called Staten to one side and said to him ‘John, I saw that package; that is bad business; you are liable to get in the penitentiary and get me in trouble and everybody else.’ He said, T am going to ask you as a friend don’t turn me in about it.’ He said it was only a bottle of Virginia Dare he bought. I didn’t make any promise whether I would or whether I wouldn’t. This all happened at Texarkana. Yes, this talk happened there.
“The next thing that happened he came to me and asked me not to say anything to the rest of the men on the car about it, which I did not.”
We are not inclined to the view that reference to appellant as a confessed bootlegger under the facts of this case, was without evidence upon which such conclusion might find some basis, nor that it was so obviously hurtful as to call for a reversal.
Appellant’s motion for rehearing will be overruled.
Overruled.