The opinion
WOODLEY, Presiding Judge
(dissenting).
I do not agree that the court’s reference to Agent Harrison as “an authority on the subject” warrants reversal.
The remark was made in ruling upon the objection to any testimony as to anything done or said in appellant’s cafe unless a proper predicate was laid. The objection that the comment vouched for the witness “in the presence of the jury” will not suffice as a certification that the remark was heard by the jury or was in fact made in the jury’s presence.
If there was any harm to appellant in the court’s remark, it was incumbent upon appellant to request an instruction from the court to the jury to disregard it. If appellant considered the harm such as could not be removed by any instruction, he should have moved the court to declare a mistrial.