Appellant urges that the remarks of the State's attorney during a discussion between counsel for the parties and the court respecting the admission of certain testimony, — to the effect that if "He wants to put the defendant on the stand we will let him be put on," was a reference to the failure of the defendant to testify which ought to be held by us reversible error. The bill as it appears in the record shows that while the trial was progressing and appellant's attorney was making an argument to the court, he referred to what the defendant had said, in reply to which the State's attorney made the remark complained of. This appears to us to be in the nature of an objection on the part of State's counsel to a statement by appellant's counsel as to what he had said, there being nothing before the court to justify appellant's counsel in his reference. The evidence had not closed and it was not then known to State's counsel, apparently, whether the accused would be a witness or not. We do not think it violative of the rules.
Appellant has filed in this record a statement of facts agreed to by both counsel for the State and the defendant, within the time allowed for filing of the statement of facts herein, and asks us to issue a writ of certiorari to compel the perfection of this record. In as much as the statement of facts is not approved by the trial judge, even if it should be properly before us by insertion in the record, we could not consider it. In order to call upon this court to pass upon a statement of facts, it must bear the approval of the trial judge. *Page 388
Appellant also asks us to consider another matter which is not properly before us. A motion was made to quash the jury panel upon facts therein stated. The truth of the matters so averred are not made to appear either by a statement of facts or a bill of exceptions filed during term time. In the absence of some such showing we must uphold the correctness of the action of the lower court in overruling said motion.
Being unable to agree with any contention made, the motion for rehearing will be overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.