Appellant was convicted of the theft of an automobile, and his punishment was assessed at confinement in the State Penitentiary for a term of five years.
The record shows that on the night of July 6, 1934, a car belonging to Will Moody, while parked on the streets of Mineola, was taken by a man who was subsequently identified as the appellant. The following day appellant and another man were found at Gladewater occupying the stolen car. When the officers observed the car and undertook to arrest appellant and his companion, they noticed that there were two shotguns in the rear seat of the car; appellant made two attempts to get one of the guns. After he was indicted for the theft of the car, he gave bond, but failed to make his appearance at court when his case was called for trial. About two years later, he was rearrested at Sweetwater, Texas.
Appellant did not testify, but interposed a plea of alibi which he supported by the testimony of his sister and his niece.
Complaint is made in four separate bills of exception to the argument of the prosecuting attorney. The first bill recites that the district attorney, in his closing argument, said: "I can testify that I talked to the witness Williford, and he told me that he knew Dallas Randall."
The court qualified said bill, and in its qualification states that counsel for appellant who preceded the district attorney *Page 53 in the closing argument, said: "I know that the witness had talked to the State's attorney in this case, and he knew exactly what the witness was going to say when he put him on the stand. I have never in my life put a witness on the stand without first talking to him and knowing what he was going to swear to."
In reply to said argument, the district attorney said: "If Barnes can testify in this case, I suppose I can. I saw Mr. Williford out in the hall and asked him if he knew the defendant, Dallas Randall. He replied that he did."
In view of the argument made by appellant's counsel, and the fact that the witness, Williford, had identified appellant as the man whom he saw drive away in the Moody car, we do not think that appellant was injured any more by the argument than by the testimony of the witness, Williford.
Bill of exception number two recites that the district attorney in his closing argument said to each of the jurors, Blalock, Bartlett, and Anders: "I remember the first time I met you, and remember your face, but do not remember the kind of clothes you had on."
The court qualified said bill, and its qualification states that counsel for appellant argued to the jury that the witness, Williford, was mistaken in his identity of appellant for the reason that he could not tell the jury how appellant was dressed on the occasion when the car was stolen. The district attorney in response to said argument said:
"Of course, Mr. Williford does not remember how the defendant was dressed on the occasion that he first saw him, but that does not mean he does not remember his face. I remember the first time I ever saw you, Mr. Blalock, Mr. Bartlett, and Mr. Anders, but I can not remember the kind of clothes you had on.
"Counsel for the defendant was able to confuse Williford over the terms of facial expressions and facial features, but the witness was positive that he remembered the face of that man. Anybody who has seen that mug once will never forget it."
While the argument of the district attorney in giving his personal opinion of appellant's facial appearance might not be proper, yet we do not deem it of such harmful character as to require a reversal of this case.
Bill number three recites that the district attorney said to the jury: "The reason that the defendant was not under the steering wheel of the car at the time of his arrest was because *Page 54 he was a killer and a better shot than Ray, who was under the steering wheel."
This bill is qualified by the court to the effect that the officers who arrested appellant at Gladewater, testified that the driver stepped on the starter but it didn't start; he had not turned the key. Appellant turned around and reached for the guns in the rear of the car; he reached back twice, and they had to threaten to kill him if he placed his hands on any one of the guns. Counsel for appellant questioned the officers as to who was under the steering wheel, and who was driving or attempting to drive the car when they arrested them, and that the officers replied that Ray, appellant's companion, was driving. Counsel for appellant argued that the appellant, Dallas Randall, was not in control of the car, and that he did not touch the steering wheel, but that the other fellow was driving. The district attorney in reply thereto, said: "Perhaps the reason that Dallas Randall was not driving the car was because he may have been a killer and a better shot than Ray * * *."
It is our opinion that the bill as qualified fails to show reversible error. See Branch's Penal Code, Sec. 363.
Bill of exception number four recites that the district attorney, in his argument to the jury, said: "I ask the jury to give the defendant ten years in the penitentiary, because I know he is guilty. I do not usually ask the jury to give any definite sentence unless I know that the defendant is guilty. I know that Williford is telling the truth."
The court in its qualification of the bill states that counsel for appellant argued that without the testimony of Williford the State did not have a case, and jury would be compelled to acquit the defendant, and he knew that the jury knew that Williford could not positively identify the defendant, and that he was not telling the truth.
In reply thereto the district attorney merely said: "Williford is a citizen of the county, has no interest in the case, and has no reason to testify falsely." He then asked the jury to give the defendant ten years in the penitentiary. We do not believe that the bills of exception, as qualified, show any reversible error. See Rancier v. State, 63 S.W.2d 697; Clayton v. State, 298 S.W. 601; Hinton v. State, 144 S.W. 617; Ball v. State, 78 S.W. 508; Spangler v. State, 42 Tex. Crim. 233.
Counsel for the State should always confine his argument to a discussion of the testimony, and not transgress the rules announced by this Court. *Page 55
Finding no error in the record, the judgment of the trial court is 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.
GRAVES, Judge, absent.