Upshaw v. State

ON MOTION FOR REHEARING.

BELCHER, Judge.

Upon his motion for rehearing, appellant urges that we misconstrued the trial court’s qualification to his Bill of Exception No. 2 in our original opinion wherein we stated that “no objection or complaint was made in regard thereto until the motion for new trial was heard,” when, in fact, a timely objection was made.

As shown in the opinion, such reference was made to certain alleged white sheets of paper being exhibited during the trial about which the court had no knowledge until the motion for a new trial was heard. The court’s qualification shows that an objection was timely made that the state’s attorney, in his argument, “was misquoting the testimony, not that he was out of the record.” At that time, the court told the jury that if they had any quesion about any testimony, upon request, the court reporter would read same to them, and the court certifies that “no further objection was made and no exceptions reserved.” Also, the court declined to certify that the complained-of argument interjected matters not in evidence.

Remaining convinced that the matter was properly disposed of on original hearing, appellant’s motion for rehearing is overruled.

Opinion approved by the Court.