The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.
Operating under a search warrant, officers went to a filling station for the purpose of making a search for intoxicating liquor. As they entered the building, appellant came out of the door with two half-gallon fruit jars full of whisky. The officers also found a half pint of whisky in a back room of the house. Appellant offered no testimony.
The court charged the statute making possession of more than a quart of intoxicating liquor prima facie evidence of possession for the purpose of sale, and defined the term "prima facie evidence". In his argument to the jury the district attorney referred to the fact that the statute makes the possession of more than a quart of intoxicating liquor sufficient evidence to establish a fact unless rebutted and explained. Appellant objected to the argument and the objection was overruled. It is stated in the bill of exception that the argument was injurious for the reason that it amounted to a reference to the failure on the part of appellant to take the stand and testify in his own behalf. Unless this reason be taken as a statement of the ground of objection, there is nothing in the bill of exception to indicate that appellant objected to the argument on the ground that it constituted a reference to his failure to testify. To be sufficient a bill of exception bringing forward an objection to an argument must disclose the grounds of the objection. Texas Jurisprudence, vol. 4, page 395; Easton v. State, 107 Tex.Crim. Rep.,298 S.W. 594; Bryan v. State, 109 Tex.Crim. Rep., 2 S.W.2d 846. Treating as a ground of objection the statement that the argument was injurious because amounting to a reference to appellant's failure to testify, it is observed that there is nothing in the bill of exception supporting such ground of objection. A mere statement in a bill of exception of a ground of objection is not a certificate on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Buchanan v. State, 107 Tex.Crim. Rep., 298 S.W. 569. If the bill should be held to be sufficient to bring forward for review the matter complained of, the opinion is expressed that the language used by the *Page 234 district attorney was not a reference to appellant's failure to testify. It was no more than a reference to the definition of the term "prima facie evidence" as embodied in the charge of the court.
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.