ON MOTION FOE EEHEAEING.
HAWKINS, Presiding Judge.In his motion for rehearing appellant stresses only two points. As one ground for said motion he urges that the district attorney in his argument made indirect reference to his failure to testify in contravention of Art. 710 C. C. P. It appears from the record that no objection was interposed to such argument at the time it was made and the question is not brought forward by bill of exception. The first time the matter was ever complained of was in the verified motion for a new *244trial in which the language claimed to have been used by the district attorney is set out. Appellant cites us to Anderson v. State, 85 Tex. Cr. R. 422, 214 S. W. 353 as authority supporting the proposition that the question can be preserved in the manner here shown. We doubt if the case mentioned goes as far as appellant claims. It appears from the opinion that some things objected to in the argument were complained of in bills; others were set up in the motion for new trial. The opinion points out a number of other errors which occurred on the trial. The court said the judgment ought not to be affirmed “in view of this record.” It is doubtful if the court would have predicated a reversal alone upon the complaint of argument. We say in view of the fact that the same court four years earlier had the exact question before it in Johnson v. State, 171 S. W. 1128, and in a majority opinion held directly that a complaint of argument such as here claimed would not be available unless objection was interposed at the time the argument was made and the court’s ruling thereon be brought forward by bill of exception. Since the cases mentioned were decided this court on numerous occasions has had occasion to pass upon the same subject. The general rule is stated in 4 Tex. Jur., Sec. 41 as follows:
“Orderly procedure demands that a complaint that counsel in his argument to the jury has transcended legitimate bounds should be addressed to the trial judge, so that he may determine its propriety and counteract any injustice that may protend, and that the offending counsel himself may be accorded opportunity to withdraw any objectionable remarks. It follows that unless a timely and proper objection is made a defendant on appeal will not ordinarily be heard to complain. He is tardy if he does not object until the conclusion of the argument, until lie makes a motion for a new trial, or until he prepares a bill of exception after the trial.” Application of the rule will be found in the following cases, some of which are cited in support of the text quoted. Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485; Simmons v. State, 93 Tex. Cr. R. 421, 248 S. W. 392; Salinas v. State, 113 Tex. Cr. R. 142, 18 S. W. (2d) 663; Thompson v. State, 116 Tex. Cr. R. 437, 34 S. W. (2d) 250; Crowley v. State, 117 Tex. Cr. R. 372, 35 S. W. (2d) 437; Ross v. State, 102 Tex. Cr. R. 364, 277 S. W. 667; Scott v. 132 Tex. Cr. R. 517, 105 S. W. (2d) 242. An examination of ithe authorities referred to will reveal that some of them deal with the exact question here presented, and are adverse to appellant’s contention.
*245As the other ground upon which the motion for rehearing is predicated appellant urges that his bill of exception number two presents error. The bill in question reserved exception to the admission in evidence of appellant’s confession for the reason as stated in the bill that “same was not free and voluntary, and was made under duress, and not in compliance with the statute.” We are referred in the bill to certain pages of the statement of facts. Upon examination it is found that they relate entirely to the testimony given by the district attorney who took appellant’s confession. There is nothing in his evidence which would even suggest that the confession was other than voluntary, and made in compliance with the statute. (Art. 727 C. C. P. 1925). After laying the proper predicate by the district attorney’s evidence the State offered in evidence the confession. No request was made that the court defer his ruling until appellant might develop the matter further, and there is no question but that the trial court ruled correctly at the time the confession was offered in evidence. Later during the trial the State called as a witness C. B. Wagers, a deputy sheriff of Montgomery County, Texas, who testified that Ranger Holliday, Ranger Williamson, Captain Purvis and other officers worked with witness on the case. The witness detailed the various investigations made by the officers in regard to the alibi claim of appellant. Upon cross-examination and further re-direct examination Mr. Wagers testified as follows:
“ * * * We arrested the defendant the night of the first of April and we locked him up and I didn’t see him any more until sometime the next morning around ten o’clock. Mr. Hurse was with me when we took him to jail. We carried him from New Caney to Conroe and put him in jail. Mr. Holliday was in New Caney when the defendant was arrested but he went to Livingston and we went to Conroe and we didn’t talk to the negro any more until the next morning. Mr. Holliday and Mr. Williamson and Mr. Purvis came to Conroe. The next morning when I saw him there was Mr. Holliday, Purvis, Williamson, Hurse and myself present. We took turns questioning him. We weren’t trying to high-pressure him but were just trying to find out what he was and where he had been and checking up on his alibi. We checked up on his alibi in New Caney. I did not curse this defendant. I am sure of that. I don’t know of anybody else that did. I did not threaten or strike this defendant in order to get him to make the confession. I didn’t burn him with any cigarettes. If anybody had a blackjack at the time we were questioning him I didn’t see *246it. I might have had one. I generally carry one. We questioned the defendant in the grand jury room. We brought him down from the jail to the grand jury room. The grand jury room is on the third floor of the courthouse. We took the defendant’s clothes off him. He was not handcuffed. He was standing up. We brought him down from the jail and looked at his clothes and missed the undershirt that he had on when he was arrested and we stripped him off and made him stand up for a few minutes until I went back up in the jail. He stood up probably five or ten minutes; just long enough for me to go catch the elevator and go up to the fifth floor and we looked back in the bedding in the cell and found the undershirt. We kept him standing ten minutes at the longest without his clothes on. He was still standing when I got back. We did not have nor put an electric light bulb in front of the defendant’s eyes. All of the lights were ceiling lights. We did not promise the defendant that if he would make a confession he could cop off a few years in the penitentiary. I never heard anyone promise the defendant anything in order to get him to make a confession. We kept the defendant in the grand jury room that morning between fifteen and thirty minutes. I wouldn’t be positive whether the defendant was standing all of that time or not.' I was standing during the time I was in there. After we finished with the defendant we took him back to jail and I went back to New Caney with the rest of them. The defendant did not confess to the crime during thé time we questioned him about ten o’clock. I next saw the defendant that night about eight o’clock. I don’t know whether he was kept awake or not. We did not take his clothes off of him when we next saw him at 8 o’clock in the grand jury room. Holliday, Williamson, Hurse and myself were present at the time. After we talked to the defendant thirty or forty minutes I left and went and got some coffee and we came back to the office and put in a phone call and sat there in the office and talked awhile and then we went back up to the grand jury room. Williamson and Hurse were still in the grand jury room. The defendant was not handcuffed at that time. The defendant had his clothes on and was standing up. When I came back in Holliday and myself went in the washroom and when I came back I sat down right at the door and Mr. Holliday was standing up talking to the negro and the negro was standing up talking to him and he talked to him five or ten minutes and thats when the negro admitted to him that he committed this crime. None of us threatened this boy and did not curse him nor did we make any promises. No proposition was made to him in any *247way. I was not with the defendant all of the time. We had the defendant in the grand jury room then from about eight o’clock until between 11 and 12. Around, I would say, a quarter of twelve. Mr. Davenport was not there with us. We did not bum an electric light bulb directy in the defendant’s eyes and make him look at it. * * * I saw the defendant on March 30, 1938, and arrested him and put him in jail and didn’t see him any more until April 1st at about ten o’clock and myself and four other officers talked to him then about thirty minutes and that night we brought him again to the grand jury room and grilled him from 8 o’clock until 12. I wouldn’t know whether the defendant was required to stand because for about two hours I wasn’t there. He was standing when I left about 8 or 9 o’clock. The defendant was examined by all of us officers at different times. To a certain extent we were continuously firing questions at him. During the time of all the questioning there was nothing done to this negro except just talk to him. That is my testimony. No pressure whatever was brought to bear on him. * * * When I went back up in the jail the first time and the defendant’s clothes were off I went up to look for his undershirt which he had taken off. That (indicating) which you hand me are the pieces of the old undershirt which I found when I went back into the jail in the cell in which he was placed. He had on an undershirt at the time he was arrested and the time he was placed in jail. At the time he was questioned in the grand jury room by myself and the other officers he had on no undershirt.”
The State then called as a witness R. D. Holliday, a State Ranger. Upon the issue of the confession he testified as follows : “ * * * I was present when he was questioned and more or less took the lead in questioning him. I wasn’t present one time when he was questioned. I went and got some coffee and was gone about thirty minutes. I was present when the defend- and first admitted he committed the offense. I was questioning him when he admitted he committed the offense. I was present at the time the statement was given in your office and signed. I was the one that called you to come down to your office and take the statement. * * * At the time the defendant was questioned in the grand jury room there were no guns or any blackjacks displayed by any of us that were present. There was' no light held up in the defendant’s face. Nobody in my presence burned the defendant with a cigarette. None of us cursed the defendant. None of us promised the defendant anything to induce him to sign the statement. I witnessed the confession that *248has been introduced in evidence. I will say this, that this negro- was treated as good as any prisoner could be treated and talked to- in a manner which nobody could take exception to and we didn’t threaten him in no- way and he made the statement just as voluntarily as- I am sitting in the stand. * * * None of the officers which questioned the defendant, including myself, abused the defendant in any way. None uf us struck him or attempted to strike him or threaten to- strike him. We did not threaten the defendant in any way during the time we were questioning him. He was not threatened at any time he made the statement in your office and it was reduced to writing and signed by the defendant. You did not promise nor did anyone else promise the defendant anything to induce him to sign this statement.”
The other officers present when appellant was being questioned were not called by appellant. He did not testify himself, and made no claim that the confession was untrue, or that he was forced to give same under duress, fear o-r promises.
In the motion for rehearing some stress is laid on the point that appellant was caused at one time to remove his clothing. Prosecutrix testified that the negro- who attacked her had an old quilt over his head and had on no other clothes save “a summer knit undershirt.” At the time appellant was arrested and placed in jail he was wearing an undershirt, suiting that description, but when the officers were questioning him it was discovered he did not have on said undershirt. It was at this time he was caused to remove his clothes until search was made for the undershirt with the result stated by witness Wagers in his evidence.
Appellant cites the case of Chambers v. State of Florida, 60 S. Ct. 472, 84 L. Ed. 716, as supporting his contention that we should hold as a matter of law that the confession of appellant was not voluntary. We are conversant with the opinion mentioned, also with that of the Supreme Court of the United States in White v. State, of Texas, 310 U. S. 530, 84 L. Ed. 1342, decided May 27, 1940. The principle announced in those cases has been given effect in Blackshear v. State, 130 Tex. Cr. R. 557, 95 S. W. (2d) 960; Abston v. State, 132 Tex. Cr. R. 130, 102 S. W. (2d) 428; Abston v. State, 136 Tex. Cr. R. 152, 123 S. W. (2d) 902; Sigler v. State, 139 S. W. (2d) 277, not yet reported in State reports. (139 Texas Crim. Reports 167). Some of the Texas cases mentioned were decided long *249before the opinion in the Chambers or White cases (supra) were delivered. Under the facts here presented we think appellant’s contention that we should say as a matter of law that the confession should not be considered is untenable.
The motion for rehearing is overruled.