In a forcible motion for rehearing appellant insists that we were wrong in regard to our holding that the argument of the District Attorney complained of showed no error. The argument is quoted in said opinion.
The objection to said argument, as revealed by the bill of exceptions, was that it was a comment on the failure of the accused to testify, and was improper and prejudicial. The argument was so plainly not a reference to any failure of appellant to testify, that we did not deem it necessary to make any extended analysis thereof to demonstrate this fact. None of the authorities cited by appellant in his motion for rehearing bear upon the question of error in commenting upon the failure of the accused to testify. The argument and all the authorities in said motion are entirely in support of the proposition that the silence of the accused when under arrest shall not be taken as a circumstance against him — a proposition uniformly upheld by this court and all other authorities known to us. This proposition, however, is based on a principle of law entirely different from the one advanced in the objection made.
However, appellant insists that we give effect to the general grounds of exception shown in said bill, to-wit: That the argument was improper and prejudicial. In view of the authorities in this state it may be doubted whether such an exception could be considered, since we uniformly hold that an exception must be specific and pointed in order to call the attention of the court below and of this court to the very point had in mind by the objector. We cite Russell v. State,96 Tex. Crim. 105; Wright v. State, 98 Tex.Crim. Rep.,266 S.W. 783; Clevenger v. State, 96 Tex.Crim. Rep.; Bennett v. State, 95 Tex.Crim. Rep.; Hubbard v. State,94 Tex. Crim. 480; Greenwood v. State, 99 Tex. Crim. 160. We further observe that no special charge was presented asking that the jury be told not to consider the remarks of the District Attorney. Leach v. State, 63 Tex.Crim. Rep.; Wren v. State, 68 Tex.Crim. Rep.. In the absence of a showing that such charge was asked and refused, this court must be satisfied that the remarks were obviously hurtful. Kennedy v. State, 19 Tex.Crim. *Page 460 App. 634; Jones v. State, 33 Tex.Crim. Rep.; Felder v. State, 59 Tex.Crim. Rep.. We have no hesitation in saying that we cannot bring ourselves to believe that this record makes obvious the fact of any injury to appellant. On the facts the record shows that the officers had located a jar of whiskey hidden at a certain point. Secreting themselves, they watched. About sundown a car came up and stopped near the hidden whiskey, but the motor was not cut off. Appellant got out of the car, went directly to where the whiskey was hidden, uncovered it, picked it up, and started back to the car. He had gone about fifteen feet when the officers disclosed themselves and told him to stop. The man in the car ran away. These facts were undisputed, and made a plain case of transportation of intoxicating liquor. Mendosa v. State, 290 S.W. 1100; Benson v. State, 287 S.W. 1097; Winters v. State, 275 S.W. 1015; Lee v. State, 255 S.W. 425; Coburn v. State, 255 S.W. 613. The jury gave appellant the lowest penalty. The facts being plain and undisputed, and the jury having given the accused the lowest penalty, there seems no room for dispute. No injury could have been inflicted by the argument.
The motion for rehearing will be overruled.
Overruled.