On the 31st day of October, 1928, an opinion was delivered granting appellant a rehearing and ordering a reversal based upon complaint directed at the argument of the assistant county attorney. All other questions urged in the motion for rehearing were decided against appellant's contention. The State has filed a motion for rehearing calling attention to the fact, — overlooked before — that no objection was urged to the argument at the time it was made, and that the trial court's attention was not called to the matter until a special charge relating to it was *Page 149 requested. This has led us to the conclusion that we were in error granting the motion for rehearing, and the opinion delivered October 31, 1928, will be withdrawn and the present opinion substituted therefor.
Appellant devoted many pages of his motion for rehearing to complaints of various kinds regarding references during the trial to a second count in the indictment which charged "possession for the purpose of sale," which count passed out of the case upon a former trial. We think the correct principle is announced in Hooper v. State, 100 Tex.Crim. R.,272 S.W. 493. The second count should have been omitted in reading the indictment to the jury, especially so upon appellant's request that it be so omitted; likewise there appears to have been no necessity or occasion for counsel referring to the charge contained in said second count. We do not deem these matters sufficiently serious to demand reversal. It would not be improper for the court to instruct the jury that the second count in the indictment was not to be considered.
Appellant complains because there was admitted in evidence a conversation between one Giddings and Martin, it being claimed by the state that the information obtained from Giddings furnished "probable cause" for the officers to search the truck regardless of the insufficiency of the affidavit and of the search warrant based thereon. When the facts claimed to constitute "probable cause" for search without warrant are undisputed it is a question of law for the court as to whether the facts constitute probable cause, and as such matter necessarily involves hearsay statements to the officer which may be injurious to accused these facts should be inquired into by the court in the jury's absence. If it becomes an issue whether facts existed which are claimed to constitute "probable cause" then the facts may be developed before the jury and the issue submitted to them under proper instructions. McPherson v. State, 300 S.W. 937. See also Dillon v. State, 2 S.W.2d 251 and authorities therein cited. The record in this case is voluminous and we may misapprehend it, but we understand from the explanation of the court appended to certain bills of exception that the details of the conversation between Giddings and Martin were first gone into by appellant on the cross-examination of the witness Martin, in which event appellant is in no position to complain.
We entertain no doubt of the correctness of the holding in our original opinion that appellant was in no position to complain of the search of the truck without a valid search warrant even if there had *Page 150 been an absence of "probable cause" to justify such search without the warrant. Appellant was not personally in possession of the truck when it was searched. The right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party and is not available to anyone else. Craft v. State, 107 Tex.Crim. R.,295 S.W. 617 and authorities therein cited. Cases following Craft are Jenkins v. State, 299 S.W. 642; Laake v. State, 299 S.W. 643; Burnett v. State, 7 S.W.2d 548; McFarland v. State, 7 S.W.2d 955. Neither is there any question in our mind but that the information obtained by Martin from Giddings furnished "probable cause" for the search without a warrant. Battle v. State, 105 Tex.Crim. R., 290 S.W. 762. See also Hardiway v. State, 2 S.W.2d 455 and cases therein cited.
The search warrant had no place in evidence before the jury. It was invalid on its face and based upon an invalid affidavit. As was said in our original opinion: "There appears nothing in said search warrant or in the affidavit upon which same was issued in any wise referring to appellant." Under these circumstances we think a reversal should not follow because of its introduction, but the recitals therein were hearsay. See McFarland v. State, 7 S.W.2d 955 and Broyles v. State,7 S.W.2d 555.
Appellant calls attention to a matter which was not discussed in the original opinion. The point arose by reason of the refusal of a special charge, exception to which was noted on the charge itself. Being under twenty-five years of age, appellant had filed application for suspended sentence. The special charge (number five) reflects the fact that the assistant county attorney said in argument: "I want to call to your attention that rarely in a court of justice have I ever seen a man apply for a suspended sentence when he was not guilty," and sought to have the jury told that they should not consider such statement. The record is bare of any suggestion that when the attorney made the remark complained of in said charge, objection was then made, or that the court was then requested to instruct the jury not to consider said remark. If such objection had been promptly made the refusal of the special charge would have been error. Bradley v. State,72 Tex. Crim. 287, 162 S.W. 515; Mason v. State, 88 Tex.Crim. R.,228 S.W. 952. If the complaint was here by bill of exceptions, we would hold it necessary that the surroundings, setting, time and circumstance of the making of the remark should be set forth. We are not apprised in any way as to how many arguments were made in the case, nor at what time in *Page 151 the course of the argument said assistant county attorney spoke, nor what led to the making of the remark. These matters are left to conjecture. All we know from the record is that while the assistant county attorney was speaking — possibly to the court, possibly to the jury — he made the remark set out in the charge referred to, and further, that before the jury retired at the conclusion of the argument, the special charge under consideration was presented to the court and was then refused. With good reason this court has committed itself to the proposition that ordinarily objection to an argument must be made at the time same occurs, so that the attorney making it may, if he sees fit, withdraw or explain it; so that the antecedents, causes, surroundings, setting, etc., may be fresh in the minds both of the jury who heard it, the court before whom it was made, and the lawyer whose statement is attacked — to the end that the argument may be truly estimated or understood, or explained or withdrawn. Manifestly for an attorney to make a statement, possibly in reply to some suggestion of the other side, or in some discussion before the court, or under circumstances justifying or excusing same, but to which no objection is offered to the argument until the case is concluded, perhaps that day, or in many instances some later day, at a time when neither the court nor the attorney can adequately recall or state the facts pertaining to the argument, or adequately explain or withdraw or modify same — is unfair and should not be tolerated. So in Sears v. State, 106 Tex.Crim. Rep., this court said:
"Unless objection to argument is called to the court's attention at the time the objectionable statements are made, they cannot ordinarily be taken advantage of by later complaints."
Harris v. State, 93 Tex.Crim. R.; Simmons v. State,93 Tex. Crim. 421; Hicks v. State, 97 Tex.Crim. R., and Ross v. State, 277 S.W. 667, are cited in support of the text. In Blackwell v. State, 107 Tex.Crim. R., in holding that the bill complaining of the argument was not sufficient, we said:
"This bill further discloses that the court's attention was not called to the argument, nor any bill of exceptions taken thereto, at the time it was made, but that the court's attention was called to same after all the argument was over."
Smith v. State, 104 Tex.Crim. R., is cited as well as the Simmons and Harris cases, supra. Tested by these rules, which seem also supported in reason, no error is manifested by the rejection of *Page 152 the charge under consideration. We uniformly hold that a bill of exceptions to be sufficient must set out the facts and be so full within itself as to manifest the error complained of. While it is true that we have also held that a notation on a refused special charge by the trial court, of the fact that exception was then taken to the refusal to give same, that this justifies the appellate court in considering the question of the correctness vel non of such refusal, without the necessity for presenting the matter by a separate bill of exceptions — still we do not see where any greater advantage could arise or greater sanctity attach when the refusal of the charge appears only by notation thereon, than when same is brought up by proper bill of exceptions. It seems fair and sound to hold in either case that ordinarily we must be apprised in some legal way of the fact that objection was made when the argument was used.
In practically all instances the improper argument is to be measured in its effect not by its language alone but by the evidence and the result of the trial. Generally speaking, where the evidence supports the verdict and the latter does not suggest that it was influenced by passion or prejudice an improper argument is not ground for reversal. In the instant case the evidence is sufficient but the verdict being for more than the minimum we might feel called upon to reverse because of the argument complained of if the record showed objection thereto had been made in a timely manner and no correction had been made by the court or counsel. We are not to be understood from what has been said as asserting an absolute rule. Instances might arise in which remarks of counsel so grossly transgressed propriety and were so seriously harmful in their character as to force the conclusion that accused had not been awarded a fair trial. Under such circumstances justice might demand a consideration of the matter if called to the trial court's attention by a special charge in the absence of objection urged at the time the argument was made. We do not regard the incident here complained of as coming within such exception.
The opinion on rehearing delivered on October 31, 1928, is withdrawn, and the present opinion substituted therefor.
Appellant's motion for rehearing is overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.