The only matter complained of in this motion is that we should have reversed the case because of the argument of the district attorney, and it is urged that we did not consider *Page 419 said argument in its entirety; that when so considered it would appear that same was necessarily harmful. We quote from the bill of exceptions a part of said argument:
"Gentlemen of the jury, the defendant testified on direct examination that he had never been charged with any offense, but when I took him on cross-examination and got in after him he admitted that there was now pending against him in the county court of this county an indictment for stealing some automobile batteries. Of course, the fact that the defendant stole these automobile batteries has nothing to do with this case, except you should consider said testimony of the defendant in passing on the credibility of the defendant as a witness in his own behalf and of the weight to be given his testimony. If he testifies falsely about this, then he may be testifying falsely about every other fact testified to by him in this case."
The bill of exceptions reflects the fact that defendant objected to all of said remarks and asked the court to instruct the jury not to consider same for any purpose, which request was refused. The bill of exceptions further proceeds to set out the fact that appellant had testified on direct examination that he had never been charged with anything, and that on cross-examination he admitted that he was under appearance bond, that they had an indictment against him and that he had forgotten about this matter. On his re-direct examination he testified that he was arrested for the theft of some automobile batteries and that he told the officers that he bought the batteries and went with the officers to the party from whom he claimed to have bought them and that this party informed the officers that he had sold them to appellant.
It is thus made to appear that the appellant did admit upon cross-examination a fact which he had denied upon direct examination, and in such case it would be perfectly proper and permissible for the district attorney to discuss that fact. It is now insisted in the motion for rehearing that the statement of the district attorney in said argument that "the fact the defendant stole these automobile batteries has nothing to do with this case," etc., was hurtful and improper because the appellant had shown by testimony in the case that he did not in fact steal the batteries. We have above set out the objection that was made by appellant for the purpose of showing that he did not direct his objection at the part now claimed as hurtful, but directed his objection to all of the argument above quoted. Trial courts rule upon objections as made and one who makes an objection to an extended argument as a whole, part of which is proper, has no right to complain that the court declined to sustain the objection made. One who objects to testimony as a whole, part of which is admissible, is in no position to have said objection considered. It is manifest from a consideration of the argument quoted that the State's attorney was discussing the testimony of the appellant. *Page 420 He expressly says to the jury in that connection that they should consider the testimony of the defendant in passing on his credibility as a witness, and refers to his conclusion that if the accused would testify falsely about this, then he might be testifying falsely about every other fact. The only thing appearing in the testimony showing that the accused had testified falsely was that he had originally denied having been indicted and on cross-examination had admitted this fact. This was the thing to which the argument of the district attorney was directed, and this must have been in the mind of the trial judge when passing upon the objection made by appellant. If appellant had seen fit to direct the objection to the particular matter complained of here at this time, the learned trial judge would probably have sustained the objection, though the matter would appear to be of small materiality and not to have influenced the jury inasmuch as they gave to appellant the minimum penalty. The conviction was for possessing intoxicating liquor for purposes of sale. Two witnesses testified to the fact that appellant had whisky in his possession and offered it for sale to witness Davis who agreed to take it, and Davis had a five dollar bill in his hand and was in the act of delivering the money to appellant when the officers came upon them and arrested them and took charge of the whisky.
Believing no error was committed by the trial court in refusing to sustain the objection as made to the argument, and that the matter was properly disposed of in the original opinion, the motion for rehearing will be overruled.
Overruled.