We discussed the three bills of exception in our original opinion. We do not seem to have discussed the special charges which were refused. There are two of same, each of which relates to argument of State's counsel. It is claimed that the arguments set out in each of said special charges were references to the failure of the defendant to testify. Considering said charges and the exceptions to the refusal of the court to give them, noted thereon as bills of exception, we observe that there is no certificate in either bill of the fact that the accused had failed to testify. Under the settled rules of this Court a bill of exceptions must be complete within itself, and the Court will not look to other parts of the record to ascertain the facts upon which the validity of the exception depends. A *Page 478 bill of exceptions complaining of a reference to the failure of the defendant to testify, must certify in some sufficient way the fact of such failure. To ask a charge instructing the jury not to consider an argument set out and which is deemed to be a comment on the failure of the defendant to testify, does not amount to a certificate of the judge in any way that in fact defendant did not testify.
In addition to this, we observe in regard to these special charges that there is no certificate of the trial judge that the State's Attorney in fact used the language attributed to him. In our opinion neither of the special charges, even when considered as bills of exception, presents error in its refusal.
This court has often affirmed that when intoxicating liquor is offered in evidence, that the mere smelling of same by the jury manifests no error.
We see no error in our conclusion that if appellant desired the testimony of his wife as a witness in his behalf, her deposition was available to him upon the ground of permanent illness. The matter is discussed at some length in our original opinion. The application for postponement or continuance on account of the absence of the wife not being deemed sufficient because of lack of diligence, and because of the permanent physical condition of appellant's wife, the obtaining of her affidavit as to what she would testify if present, would not seem to aid appellant in the matter of obtaining a new trial. We observe that in the affidavit the wife affirms under oath that under present conditions she could not at all go anywhere.
Being unable to agree with any of the contentions made in appellant's motion for rehearing, same will be overruled.
Overruled.