Fullbright v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

— In his motion appellant vigorously assails our conclusion that the indictment in this case is sufficient. The statute governing is quoted in our former opinion. The indictment alleged that appellant and others made a connection with a storage tank constructed for the purpose of storing crude oil, the property of one Keller, without the owner’s consent, which connection was made with the intent then and there to appropriate a part of the contents of said tank to the use and benefit of themselves, etc. We still think the indictment good. From it appellant, even if innocent, learned that he was charged with making such connection with said tank as would enable him to get from same a part or all of its contents, which he intended to appropriate. It would seem too much nicety of reasoning to say that this did not allege that there were “contents” in the tank which could escape therefrom through such connection and go into possession of appellant for his appropriation. The fact that the indictment did not use the word “tap” or “tapping” would not affect its validity.

We labored under a mistake when we said, in our former opinion, of appellant’s application for continuance that it failed to aver that the application was not made for delay, etc. The application in the record properly sets forth the statutory requisites, and is now considered by us. Said application appears wholly lacking in any showing of diligence in regard to the absent witnesses. The indictment herein was returned in January, 1936, and, as far as shown by this record, the first and only application for process for said absent witnesses, named in the request for continuance, was on March 13, 1936, — three days before the case was set for trial on March 18th. This was clearly not diligence. Nor was the affidavit of any of said absent witnesses attached to the motion for new trial.

Appellant strongly urges that his bills of exceptions 15 to .19, — complaining of improper argument of State’s counsel,— show error. We are not able to agree that said argument was of that character which should call for reversal. Comments on the personal appearance of the accused would ordinarily indicate a lack of faith on the part of the State’s attorney in his own case as made out, but we would not be inclined to reverse a case because the State’s attorney called attention to the curly *645hair of the appellant, or to the fact that he had on a coat, and that his hands were clean; but it appears that, aside from such reference, no prejudicial language was used or abuse indulged in. We might here say that the accused in any case has the right, by his attorney, to except to improper argument, and that too, — at the time same is made; and if, — as in this case,— the trial court informs defense counsel that he must not interrupt the attorney for the State in his argument by taking exceptions thereto, and when the argument as a whole is presented as erroneous before this court by bill of exceptions, we would be inclined to give to the accused the presumption that he would have objected to any part thereof which appears to us, upon examination, to be harmful or prejudicial.

In the case before us we have examined the arguments brought forward by appellant as those made over his objection, but find nothing further than that the curly hair of appellant was commented on, and he was referred to as the Kingfish, and the brains of the gang, etc. etc. We think the jury were warranted on the facts in concluding appellant guilty, and inasmuch as they gave him only two years in the penitentiary as penalty, this would seem to negative the existence of prejudice on their part.

Not being able to agree with appellant’s contentions, the motion for rehearing is overruled.

Overruled.