Appellant was charged by indictment in Gregg County with the offense of swindling, it being alleged that he gave a check to the R. Lacy Refinery for $114.15 on The Citizens National Bank of Waco, Texas, in exchange for 1245 gallons of gasoline at a time when he did not have sufficient funds to cover said check, all of which was known to him. The jury found him guilty and assessed his punishment at two years in the penitentiary.
Appellant presents three bills of exception approved by the court; also a bystanders’ bill and a bill prepared by the court, all of which will be given consideration as hereinafter indicated.
A bill of exception complains of the ruling of the court in permitting the witness, A. S. Robertson, to testify to various other checks given by the defendant to the Lacy Refinery. The checks, it is also said, were introduced but the bill fails to show that these checks in any way affected the case. It is not disclosed whether they were good checks and paid promptly or not, and we are unable to determine from the bill what, if any, harm resulted to the appellant by reason of the action of the court.
By Bill of Exception No. 2 complaint is made of the action of the court in permitting Raymond Ford to identify various checks given by the defendant to the Lacy Refinery. The bill contains the same objection to the checks as that complained of in Bill of Exception No. 1, and likewise Bill No. 2 is sub*319ject to the same fatal defect as that pointed out in Bill of Exception No. 1. Because no error is presented in the bills, both are overruled.
By the Bystanders’ Bill which we find in the record complaint is made that the court permitted the State to ask the defendant, over his objection, if it is not a fact that he had also given the Hurricane Oil & Refinery Company of Arp, Texas, three checks on March 6, 7, and 8, in an amount exceeding $300.00, to which he answered that he did not know, that he had not had his book balanced since that time, that he couldn’t tell what he had out, and he didn’t know how many checks he had given the Lacy Refinery. Complaint is further made that thereafter the three checks were presented and handed to the appellant’s attorney while he was arguing the case to the jury. The bill further states that appellant’s counsel at that time appealed to the court for the court reporter in order that he might dictate his objections and exceptions to said reporter but that the reporter was absent and the court promised him that he could have a full bill. It is further stated that appellant was not recalled to the witness-stand for the purpose of identifying the checks and that he, at no time, identified them. It is also further presented in the bill that State’s attorney said to the jury: “Gentlemen, here is three more hot checks given by the defendant to the Hurricane Oil & Refinery Co., of Arp, Smith County, Texas. Gentlemen, you saw how quick defendant’s counsel dropped these checks; no wonder gentlemen, defendant’s counsel didn’t discuss these three checks; they are.hot checks, gentlemen, just like all of the rest of these checks. It is just further evidence of his scheme to get all he could on these hot checks.”
As a part of this bill, appellant has attached the aifidavits of three parties saying that they were in the court room; that they are citizens of the State of Texas, and that the bill truly presents the facts as they really transpired.
This bill is fatally defective. In the first place, it is duplicitous in its complaint of the errors committed, and we are not able to understand from a very careful consideration of it whether appellant means to cómplain about the question asked the witness, the introduction of the checks, or the argument of the prosecuting attorney. In- the abstract, we see no relevancy in the question asked by the State’s attorney which seem to give rise to the evidence and the argument. The answer of the appellant presents nothing that is harmful to him, and the *320question is not harmful per se. We have no information about the checks and are unable to determine that they are harmful. The argument of counsel might, under some circumstances, be error requiring a reversal of the case, but the court will not reverse a case upon the mere statement unless some character of harm is shown.
If we give consideration to the court’s bill, we find enough light thrown on the subject to justify consideration of the bystanders’ bill with probable error appearing. If we consider this bill, however, we must give it full effect, and the explanation of the occurrence justifies the argument. We cannot disregard the court’s bill and at the same time use it to complete the bystanders’ bill to cure the defects in it. Consequently, we overrule the appellant’s bystanders’ bill.
By Bill of Exception No. 4 complaint is made of the failure of the court to charge the jury that E. J. Mangrum, appellant’s agent, had delivered the checks in question and was an accomplice as a matter of law, because the witness testified that he knew the financial condition of appellant was bad, and that the witness, on many occasions, had to assist defendant in various ways in protecting his checks between the time the witness presented such checks to the Refinery and the time that they would reach the bank on which they were drawn. The bill does not point out evidence which would make the witness Mangrum an accomplice, and require the charge requested. The fact that he knew defendant was at times in hárd financial circumstances and the fact that he had helped him to protect his checks were not sufficient to show a knowledge on the part of the witness that appellant did not have the money to cover this check at the time it was delivered. The bill of exception is overruled
By House Bill No. 190 of the 46th Legislature, Chapter 17, Volume 1, page 246, General Laws, a new act was passed covering the subject of swindling by bad checks. Section 7 of said act, in specific language, repeals Section 4 of Article 1546 of the Penal Code. That is the article under which the present prosecution is had. The question.has been raised as to whether or not the repeal of that section by the new act subsequent to the commission of the offense would bar the prosecution.
The offense under consideration is alleged to have occurred in February, 1939, and was tried at the July term of court in 1939. The 46th Legislature adjourned on June 21, 1939, and *321said House Bill No. 190 did not become effective until 90 days after adjournment.
Article 1546 P. C. was in effect at the time of the alleged commission of the offense and at the time of the trial. Of course, if Art. 1546, P. C., had been repealed, and the act therein denounced was no longer an offense, this prosecution would be ended, but the 46th Legislature (House Bill No. 190), while repealing Art. 1546, P. C., also re-enacted a statute which made offenses the same acts which had theretofore been denounced as such in Art. 1546. The penalty was also increased. Under the circumstances stated, Arts. 13, 14, 15 and 16 of the Penal Code are operative. They are construed and given effect in Ash v. State, 134 Tex. Cr. R. 208, 114 S. W. (2d) 889, and the cases therein cited, and also in Spangler v. State, 135 Tex. Cr. R. 36, 117 S. W. (2d) 63; Stansbury et al v. State, 111 S. W. (2d) 717.
It is not to be understood that we are here construing or passing on the Constitutionality of the Act of the 46th Legislature in question. The extent of our holding is that under Arts. 13 to 16, inclusive, of the Penal Code, said Act does not affect the present prosecution.
It is therefore our conclusion that prosecution will lie for offenses committed prior to September 21, 1939. Further than this, it is sufficient to say that the present case does not raise any question as to the constitutionality of the re-enactment above referred to as House Bill No. 190, Acts of the 46th Legislature.
No error appearing, the case is affirmed.