The offense charged is manufacturing liquor, and the punishment assessed is one year in the penitentiary.
Appellant's first complaint is with reference to the court's charge on the burden of proof. Paragraph 4 of the court's main charge presents the matter in as favorable light as that asked by the appellant.
Bill No. 2 complains at the court's refusal to give a special charge submitting the converse of the court's charge on the law of principals, and in this connection complaint is further made at the court's failure to submit in an affirmative way the defense interposed by the defendant. We observe that in paragraph 9 of the court's main charge he fully and fairly submitted the converse of the law of principals and an examination of the charge further shows that appellant's defense was fully submitted to the jury.
Complaint is made at the argument of the District Attorney. The bill shows that the objection to this argument was sustained and the jury orally instructed not to consider the same. The record further shows that appellant did not tender a written charge instructing the jury not to consider the argument, and under the record as presented we think reversible error is not shown. Stewart v. State, 158 S.W. 996, Strickland v. State, 161 S.W. 110. Chaffino v. State, 154 S.W. 546. Kelly v. State, 151 S.W. 304.
Complaint is made at the court's action in sustaining the state's objection to the following question:
"Knowing the location and the growth of the brush and brambles and briars in the woods, at that time of night, from the position where Tom Proctor and John Hatchett were, in your opinion, considering the character of night, was it possible for any one to see the defendant from the position where Tom Proctor, the witness, testified he was at the time he saw the defendant about the still moving jars, and doing something to the fire?"
The record shows that this witness was permitted to testify as to the character of obstruction that was between Tom Proctor and the defendant at the place where Tom Proctor said he was, and the jury was thereby enabled to form their own conclusions as to whether or not Tom Proctor could have seen the defendant at the time and from the location he said he was in. It occurs to us that the question asked called for a conclusion of the witness and one that it was not proper for him to give. On the contrary, we think the jury could draw its own conclusion from the facts shown. It was entirely proper and as we understand the *Page 308 record the court permitted the witness to detail the obstructions, the character of the night, etc., and to have gone further and permitted the witness to have said that Proctor could not have seen the appellant, in his judgment, would have been equivalent to permitting the witness to substitute his opinion or judgment for that of the jury.
What has been said disposes of the questions presented by appellant, and finding no error in the record, the judgment 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.