Conviction is for theft of turkeys; the punishment, one year in the penitentiary. *Page 627
The appellant was jointly indicted with S. B. Warrick, Morris Warwick, Ben Gordon, and Harry Gordon for the theft of turkeys from one Bill Lightner and upon severance, appellant was tried alone.
Appellant contends that the trial court erred in not granting the appellant's first application for a continuance for the want of the testimony of the defense witness, D. R. Riptoe. In the companion case of Ben Gordon v. State, 120 Tex. Crim. 602,48 S.W.2d 629, appealed from Coleman county, in an opinion by this court delivered February 3, 1932, in passing upon the same motion for a continuance in that case as is here presented to this court, it was held that there was no error in refusing such continuance on the grounds that there was no diligence shown. The same question having been presented in Gordon's case, we pretermit further discussion of the matter.
The appellant complains that the trial court in his charge to the jury did not affirmatively charge the defendant's defense. One of the defenses of the appellant was that of an alibi which the court in his charge affirmatively submitted. Another affirmative defense of the appellant was that he and his co-defendants purchased the turkeys alleged to have been stolen from a Mexican on the highway leading from Coleman to Abilene. The trial court, at the request of the appellant, gave a special charge submitting said issue affirmatively.
By proper bill of exception, appellant complains that after all the evidence was closed in the case and the court had read his charge to the jury that over the objection of the appellant, the state recalled the state's witness, F. M. Eidson, and had him to testify that defendant at the time he came to his place of business told him his name was Willis Ward. The defendant objected to the reopening of the case because there was no showing that the district attorney was misled in any way and the testimony had been closed and the court had read his general charge to the jury and it would be improper and prejudicial for the state to be permitted to reopen the case. There is no showing that the introduction of this witness was a matter of surprise to the appellant or that he had permitted any of his witnesses to leave or that he was in any wise injured or his rights impaired or affected by this action of the court. Article 643, Code of Criminal Procedure, provides: "The court shall allow testimony to be introduced at any time before the argument of a case is concluded, if it appears that it is necessary to a due administration of justice." At the time the court permitted the state to reopen the case in the present instance argument had not commenced. In a matter of this kind the trial judge must exercise his sound discretion. There is nothing in the present record showing any abuse thereof. Tarver v. State, 108 Tex.Crim. Rep.,2 S.W.2d 439; Childs v. State, 102 Tex.Crim. Rep.,276 S.W. 1105.
By proper bill of exception, appellant complains of the argument of *Page 628 the district attorney as follows: "If this defendant decided he would go out like a wolf and steal turkeys like a wolf from the farmers of this county, you should put him in the penitentiary." Appellant excepted to said argument on the grounds that it was prejudicial and no evidence authorized such remark and nothing was stated by defendant's counsel which called for such remark and same was abusive. This statement by the district attorney seems to be within the bounds of legitimate argument, and we think it is not such as calls for a reversal.
The record presents no question warranting a reversal of the case.
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.