The appellant was convicted for the offense of transporting liquor, and his punishment assessed at two years in the penitentiary.
The record discloses no objection to the charge. We find but one bill of exception for our review. This bill complains of the remarks of the court in the presence of the jurors while they were being examined by the County Attorney on their voir dire. It appears that the juror Wade stated he could not convict a person upon circumstantial evidence, whereupon the County Attorney stated to the court that the state was relying for a conviction upon circumstantial evidence and challenged the juror for cause. At this point the court asked the juror if he could convict a person upon circumstantial evidence provided the evidence measured up to the rule laid down by the court in his charge, and the juror stated that he did not think he could, and further stated to the court that he wanted to be perfectly frank with the court and that he did not feel like he could convict a man upon circumstantial evidence, whereupon the court stated to the juror that sometimes circumstantial evidence was more positive and better evidence than direct evidence, that the witness could *Page 548 testify falsely, but the circumstances could not, and then said to the juror:
"I will illustrate to you: Suppose this gentleman here (referring to the County Attorney) and I were to go in that room (referring to a small room adjoining the court room) and after we had entered the room you should hear a pistol fire and that I should emerge from the room with a smoking pistol in my hand, and the gentleman here who had just entered the room with me was lying on the floor shot and killed, would you not consider that the state had made out its case beyond a reasonable doubt by the facts in that case?"
Whereupon the juror stated that would be a very strong case, but said:
"I would want to know that there was no one else in that room."
Whereupon the judge said:
"I am supposing that it was established that there was no one else in the room, then that would be a complete case, would it not?"
And the juror stated again that he would not want to convict on circumstantial evidence, whereupon the court stated that he thought the juror was wrong in his views but that he would excuse him.
The bill discloses that what was said above occurred in the presence and hearing of prospective jurors who later tried the appellant. The remarks of the court were objected to as being a direct comment on the weight of the evidence in the presence of the jury, and, the case being one of circumstantial evidence, because the remarks were prejudicial to the rights of the appellant.
We are unable to agree with appellant's contention, for the reason that there is nothing in the bill, or the record, showing that the appellant made any motion to quash the panel, or that the appellant was forced to take any objectionable jurors.
A question similar to this one was passed on in the case of King v. State, 64 S.W. 245. Judge Davidson, writing for the court, used the following language:
"Appellant excepted to the statement made by the court on the ground it was prejudicial to the rights of the accused; that it invaded the right given defendant, under the law, to question jurors, and was calculated to give them an intimation as to what was required of them before they could be qualified to sit in the trial of the case. Art. 675, Subd. 13, White's Ann. C. C. P., provides that, 'where a juror is being questioned in regard to his *Page 549 conclusion as to the guilt or innocense of the accused, if he answer in the affirmative, he shall be discharged; if he answer in the negative he shall be further examined by the court or under its sanction,' etc. The statute provides for the very contingency that seems to have arisen as shown by the bill. This and matters of the same character are under the guidance and within the discretion of the court, to the end that the jurors may be fairly and intelligently interrogated as to their qualifications. The court is not only not interdicted from asking questions, but the statute provides that he may interrogate jurors. In David v. State, 19 Tex. App. 201[19 Tex. Crim. 201], the court said, 'We are of opinion that, within proper limitations, the safer practice would be to permit counsel to make examination; but this matter is within the discretion of the court, and if not abused, we will not reverse its action in the premises.' "
The court in passing sentence, however, failed to recognize the statute with reference to the indeterminate sentence; the sentence being for two years. The sentence will be reformed so as to conform with the indeterminate sentence statute, and made to read that the punishment shall not be more than two years nor less than one year.
The facts being amply sufficient to support the verdict, and there being no errors in the record, the judgment of the trial court, as reformed, 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.