Offense, burglary; penalty, two years.
Appellant was apprehended in the act of burglarizing a box car. He signed a confession admitting his guilt. Appellant questions the sufficiency of the evidence. We regard it as abundantly sufficient to support the verdict of the jury.
Several special requested charges appear in the transcript. None of these are shown to have been timely presented. Under oft-repeated decisions these present nothing for review.
Appellant was shot at the time he was apprehended by McCall, a special officer. Objection was made to the argument of the County Attorney to the jury to the effect in substance "that he did not blame McCall for shooting the defendant because the defendant had been convicted of box car robbery three times before and was a dangerous character." The confession of appellant shows that he had been convicted and the argument of the County Attorney appears justified by the facts in evidence.
Another bill is presented to the closing argument of the County Attorney in which it was alleged he stated that "if the defendant's attorney thought the State had not made out a case, he would have asked the Court to instruct the jury to find the defendant not guilty but that his attorney did not so request the Court to give any such instructions, when in fact the County Attorney well knew that the defendant's attorney had in fact requested the Court to instruct the jury to find the defendant not guilty." The appellant received the lowest punishment. In our opinion such an argument could not have injured appellant. His guilt is overwhelmingly established and the verdict seems clearly in response to the evidence rather than to any improper argument. *Page 251
By Bill No. 4 it is made to appear that defendant was compelled to answer that he had been convicted and served a term in the penitentiary in 1920 for a box car robbery and theft. This was not too remote and was admissible to affect defendant's credibility as a witness, he having taken the stand to testify; besides, his confession admitted, apparently without objection, contains substantially the same testimony.
These are all the questions presented. They are so well settled that we have not thought it necessary to cite authorities.
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.
ON MOTION FOR REHEARING.