In his motion for rehearing appellant cites Ah Kee v. State,34 S.W. 269, as supporting his contention that the *Page 361 evidence complained of in bills of exception numbers ten, eleven, twelve and thirteen was not admissible upon the second count charging that appellant kept and exhibited a gaming table and bank upon which count conviction was had. If that had been the only charge in the present indictments as it was in Ah Kee's case we think it would have been controlling here. However, as pointed out in the original opinion the first count in the indictment charged the keeping of a place for the purpose of being used as a place to gamble, etc. We entertain no doubt that the evidence complained of in the bills was admissible under said first count. When the court was called upon to rule regarding the admission of said evidence he ruled correctly. He was never called upon to withdraw the testimony after the State elected to stand on the second count. After the status of the case changed by said election appellant should have availed himself of a motion to withdraw the evidence not pertinent to the second count. Not having done so he cannot be heard to urge as error the ruling of the court which was correct when made. Raulie v. State, 122 Tex.Crim. R.,55 S.W.2d 562; Vecera v. State, 113 Tex.Crim. R., 22 S.W.2d 458; Thornton v. State, 118 Tex.Crim. R.,40 S.W.2d 808. In the opinion in Ah Kee's case (supra) where the evidence complained of was clearly inadmissible, we observed the following significant statement, "If, however, the lowest punishment had been awarded, we would not reverse this judgment because of the admission of this irrelevant testimony."
The general rule regarding argument is fairly stated in Threadgill v. State, 124 Tex.Crim. R., 61 S.W.2d 821, as follows: "There must be considered not only the argument, (unless it offends against some statutory provision) but the setting in which it appears, the evidence in the case, and the verdict of the jury." See also Vineyard v. State, 96 Tex. Crim. 401,257 S.W. 548, and other cases cited in the Threadgill opinion. Giving effect to said rule regarding arguments we are not led to believe that under the facts here present the argument complained of in bill of exception number two furnishes the predicate for a reversible error.
Appellant's motion for rehearing is overruled. *Page 362