A proper appeal bond having been filed, the judgment of dismissal is set aside, the appeal is reinstated and the case considered on its merits.
Appellant was at a carnival. He and one of the employees of the carnival left the grounds and drove in appellant's automobile to *Page 290 appellant's home, appellant driving the car. One of the occupants of the car entered the back door of the house and shortly returned to the car. Appellant and his companion then drove back to the carnival grounds, appellant driving the car. As the car approached the carnival grounds an officer commanded them to stop. Appellant stopped the car and he and his companion were ordered out of the car. Appellant's companion fled. In leaving the car appellant picked up a pint bottle containing whiskey and broke it. A small quantity of the whiskey was preserved by the officer. No defensive testimony was offered.
In his closing argument to the jury the district attorney said: "Gentlemen of the jury, the truth of the matter is this defendant had sold that bottle of whiskey to that strange man and it is up to you gentlemen to help me to enforce the prohibition laws of this state." Appellant objected to the remarks of the district attorney on the ground, among others, that no evidence had been introduced tending to prove a sale of whiskey by appellant. Request was made that the court instruct the jury not to consider the statement of the district attorney. The request was refused. It is certified in the bill of exception that no evidence was introduced as to any sale of intoxicating liquor by appellant. The argument had no support in the evidence and was improper. However, in view of the record, we fail to perceive the possibility of harm to appellant. The testimony of the state was uncontroverted. The automobile in which the whiskey was transported belonged to appellant. Appellant drove the car. When stopped by the officers he seized the bottle of whiskey and broke it. No effort was made to impeach the state's witnesses. The minimum penalty was assessed. It therefore seems manifest that there could have been no more favorable verdict to appellant upon the uncontroverted facts. Thomas v. State, 4 S.W.2d 39.
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.