Opinion
No. 13724.
Delivered November 19, 1930.
Intoxicating Liquor — Argument.
Where objection was made to the argument, the court correctly instructed the jury not to consider it. Besides, the language was not of that inflammatory character which could not have been cured by an instruction if requested.
Appeal from the District Court of Falls County. Tried below before the Hon. E. M. Dodson, Judge.
Appeal from a conviction for the unlawful manufacture of intoxicating liquor; penalty, confinement in the penitentiary for one year.
The opinion states the case.
Bartlett Peterson of Marlin, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Offense, the unlawful manufacture of intoxicating liquor; penalty, one year in the penitentiary.
Searching officers found on the premises of appellant two whiskey stills in operation, a quantity of mash and some whiskey. These were located in a thicket apparently surrounded by farming land. Appellant admitted his presence at the still but explained that he just happened to be there while engaged in driving stock out of the thicket and that he had no interest in the still. His defense appears to have been fairly submitted by the Court.
The only matter apparently seriously urged by appellant is his complaint of the closing argument of the County Attorney, who made use of the following language:
"If you send him (the defendant) to the penitentiary for a year, he'll get out in eight months; if you send him for two years, he'll get out in sixteen months; if you send him for three years, he'll get out in twenty-four months; so you see it's not much to send him up for a year."
The Court upon objection orally instructed the jury not to consider these remarks. The Court did all he was asked to do and we are of the opinion that the language was not of that inflammatory character which could not be cured by an instruction. Particularly is this true in view of the minimum penalty assessed, and the facts showing the guilt of appellant.
We have examined all of appellant's contentions and finding no merit in any of them, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
HAWKINS, J., absent.