In its motion for rehearing, the state contends that the bill of exception relating to the argument of the District Attorney should not have been considered by us. The court's qualification on the bill is set out in our former opinion. Our attention was directed to the statement therein that the rule of the trial court required appellant to request a special charge setting forth the language complained of in the argument, rather than to the effect of the entire qualification. The rule of the court, though not complied with, would not deprive accused of complaint of improper argument if the matter was otherwise properly before us. Weige v. State,81 Tex. Crim. 476, 196 S.W. 524; Simmons v. State, 93 Tex. Crim. 421; 248 S.W. 392.
The state urges that in view of that part of the qualification stating that the "court cannot at this time say whether or not the District Attorney used the language complained of," leaves the bill without any certificate from the trial judge that the argument was used. The state's position is supported by Lane v. State, 59 Tex.Crim. Rep.,129 S.W. 353, in which a bill complaining of argument bore a notation by the trial judge that he was preparing his charge at the time, and if the remark complained of was made, he did not hear it. This was held to be no certificate that the argument was made. See also Howard v. State, 143 S.W. 178.
There is another matter in connection with this same bill to which we now call attention. After setting out the argument to which objection was sought to be made the bill recites, "At this stage the attorney for the defendant walked up to the judge's bench and told the judge he was excepting and objecting to said remarks by the District Attorney." There is no statement in the bill that the court made any ruling on the matter, or that he was requested so to do. The inference may be drawn that the complaint was made privately to the judge. It has been held that an objection so made is not available. Weige v. State (supra), Simmons v. State (supra); Harris v. State,93 Tex. Crim. 544, 249 S.W. 485. Upon both grounds discussed it appears the bill complaining of the argument does not present error. The only other point decided adversely to the state in our former opinion was regarding the District Attorney asking Eugene Watson upon cross-examination if he had not sought to be tried as a juvenile. We do not regard this matter of sufficient importance to demand a reversal. *Page 159
The state's motion for rehearing is granted, the order of reversal is set aside, and the judgment is now affirmed.
Affirmed.
ON MOTION FOR REHEARING BY APPELLANT.