Appellant was convicted in the district court of Roberts County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.
There are three bills of exception, two of which are in question and answer form and therefore violative of Art. 846 Cow. C. P., and under many decisions of this court cannot be considered. The other bill complains of the fact that the State's attorney in his argument to the jury said: "Yes, the defendant sits back and the State presumes that he is innocent and must prove him guilty beyond a reasonable doubt." The objection seems to be that this was an allusion to defendant's failure to testify. We do not think the language used a necessary reference to the failure to testify. The law requires the State to presume the accused to be innocent and to prove him guilty beyond a reasonable doubt, and certainly reference to this fact in argument could in nowise be said to refer to the failure of the defendant to testify. We are unable to comprehend the proposition that to merely say the defendant sits back, — would convey to the jury the idea that this meant to call their attention to the failure of appellant to take the witness stand. The bill is qualified with the statement that the argument was in reply to argument made by the attorney for appellant.
We see no benefit to arise from an extended statement of the facts. Appellant had a hired man and was observed to go with this hired man to a house on appellant's premises where the two remained a considerable length of time. Appellant had been seen around the premises before. Officers searching said house found therein a still in operation.
The judgment will be affirmed.
Affirmed. *Page 30
ON MOTION FOR REHEARING.