HABPEB, Judge.
—Appellant was convicted of robbery, and his punishment assessed at five years confinement in the State penitentiary.
In this case the evidence would show that one Travis Keys robbed Frank Morgan of seventy-five dollars, and the State relied on circumstantial evidence to connect appellant with the transaction as a principal. The court, among other things, instructed the jury: “Before you can convict the defendant, Alvin Johnson, in this case you must believe beyond a reasonable doubt that Travis Keys actually committed the offense of robbery as defined above, and as charged in the fourth paragraph of this charge, and you must further believe beyond a reasonable doubt that the defendant, Alvin Johnson, was present at the time of the commission of said offense, and knowing the "unlawful intent aided said Travis Keys by acts, or encouraged him by words or gestures in the commission of said offense, or that said Alvin Johnson, prior to the commission of said offense, had advised and agreed with the said Travis Keys to the commission thereof, and had done some act pursuant to said agreement, and that he was actually present at the time said offense was committed.” The court also in his charge properly instructed the jury as to who are principals in the commission of an offense, and instructed the jury the law governing a case depending on circumstantial evidence in a way not complained of by appellant, and in language frequently approved by this court. (Branch’s Crim. Law. sec. 204, and authorities there cited.) In this case we can not hold, as a matter of law, that the facts and circumstances shown by the evidence were insufficient to authorize the jury to find that appellant was acting with Keys in the commission of the offense, if an offense was committed by Keys, and this the jury found to be a fact. While this is a companion case to that of Travis Keys v. State, reported in 60 Texas Crim. Rep., 279, 131 S. W. Rep., 1068, on this trial there was no evidence offered 'tending to show that the money was won irom £h.e prosecuting witness in a gambling game, as was done in that case, a.nd yet the court held in that case that the evidence was sufficient to support a conviction for robbery, and in this case (without the evidence as to gambling) we could hardly be expected to hold that the evidence was insufficient to sustain a conviction for robbery.
The only other question presented in the record that it is necessary to discuss is presented in three bills of exception reserved after verdict and after the motion for new trial had been overruled, all relating to the same matter. In these bills it is claimed the prosecuting attorney used the following language: “It is in the power of the defendant to show what manner of man he is, the State can not show it; the law does not permit it. It is within the mouth of the defendant to tell what kind of a man he is, and I would like to know what kind of a man I am prosecuting and you would like to know what kind of a man you are setting in judgment on.” In the bills of exception it is shown by the allegations of appellant that when the language was used, no exception was reserved to the argument, but it is admitted that the first time it was complained of was in the amended motion for new trial, filed the 8th day of August, eight days after the verdict had been rendered and judgment entered thereon. Appellant contends that this was a direct
allusion to defendant’s failure to testify, and although it was not excepted to during the trial of the case, it was a plain violation of article 790 of the Code of Criminal Procedure, which provides that a defendant may be permitted to testify in his own behalf, but his failure to testify shall not be considered as a circumstance against him, nor shall the same be commented on or alluded to by counsel in their argument, and he also contends that the error may be assigned for the first time after verdict in the motion for a new trial. This contention, we think, contrary not only to the trend of decisions of this court, but contrary to the provisions of the Code of Criminal Procedure. It has always been the rule in this court that evidence admitted on the trial, no matter how hurtful or harmful, if unobjected to during the trial of the case, and complained of for the first time after verdict in the motion for new trial, comes too late and presents no ground for reversal of the case, although if objected to at the time it was offered during the trial it would have presented ground for reversal. Wright v. State, 35 Texas Crim. Rep., 367; Gonzales v. State, 30 Texas Crim. App., 203; Simon v. State, 31 Texas Crim. Rep., 186, and cases cited under subdivision 1, section 1183, White’s Ann. Code of Criminal Procedure, where the rule is stated to be: “A party can not be heard to complain of illegal and incompetent evidence to which he did not object at the time of its introduction.” The law in these instances says certain testimony is inadmissible, yet if not objected to when offered, it is too late to complain of the matter after the trial is completed and verdict rendered.
It was formerly the rule in this State, that objections to the charge of the court and errors pointed out therein for the first time in the motion for a new trial could be considered by this court, but the Legislature deemed this rule inadvisable, and changed it by specific legislative enactment. In chapter 138, of the Acts of the regular session of the Thirty-third Legislature (p. 878, Session Acts), it is provided that if the charge is erroneous, the judgment shall not be reversed unless the error was pointed out before the charge was read to the jury. And so urgent did they deem this matter the law declares “the fact that there are many reversals in criminal cases caused by errors in the charge of the court due to the fact that such errors were not pointed out to the trial judge before the charge was given, creates an emergency and imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and that this Act be in effect from and after its passage, and it is so enacted.” Thus it is made plain that if we follow the plain spirit, intent and language of our Code of Criminal Procedure, if error be committed in the trial of the case, such error must be excepted to at the time of and during the trial, or we must not consider such matters on appeal. It was the evident intent and purpose of the Legislature to provide that any error committed during the trial. of a case must be excepted to at that time to give the trial court a chance to correct its error, or the matter will be considered as waived, and this court shall not reverse a case on account of any error that appellant did not consider of sufficient importance to complain
of during the trial. As to the wisdom of this rule, or its fairness and justness, we do not feel called upon to express an opinion. If it is deemed hurtful and harmful, inequitable and unjust, an appeal should be made to the law-making body, the Legislature, to change it, and the appeal should not be made to us to annul its provisions.
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HABPEB, Judge.
—Appellant was convicted of robbery, and his punishment assessed at five years confinement in the State penitentiary.
In this case the evidence would show that one Travis Keys robbed Frank Morgan of seventy-five dollars, and the State relied on circumstantial evidence to connect appellant with the transaction as a principal. The court, among other things, instructed the jury: “Before you can convict the defendant, Alvin Johnson, in this case you must believe beyond a reasonable doubt that Travis Keys actually committed the offense of robbery as defined above, and as charged in the fourth paragraph of this charge, and you must further believe beyond a reasonable doubt that the defendant, Alvin Johnson, was present at the time of the commission of said offense, and knowing the "unlawful intent aided said Travis Keys by acts, or encouraged him by words or gestures in the commission of said offense, or that said Alvin Johnson, prior to the commission of said offense, had advised and agreed with the said Travis Keys to the commission thereof, and had done some act pursuant to said agreement, and that he was actually present at the time said offense was committed.” The court also in his charge properly instructed the jury as to who are principals in the commission of an offense, and instructed the jury the law governing a case depending on circumstantial evidence in a way not complained of by appellant, and in language frequently approved by this court. (Branch’s Crim. Law. sec. 204, and authorities there cited.) In this case we can not hold, as a matter of law, that the facts and circumstances shown by the evidence were insufficient to authorize the jury to find that appellant was acting with Keys in the commission of the offense, if an offense was committed by Keys, and this the jury found to be a fact. While this is a companion case to that of Travis Keys v. State, reported in 60 Texas Crim. Rep., 279, 131 S. W. Rep., 1068, on this trial there was no evidence offered 'tending to show that the money was won irom £h.e prosecuting witness in a gambling game, as was done in that case, a.nd yet the court held in that case that the evidence was sufficient to support a conviction for robbery, and in this case (without the evidence as to gambling) we could hardly be expected to hold that the evidence was insufficient to sustain a conviction for robbery.
The only other question presented in the record that it is necessary to discuss is presented in three bills of exception reserved after verdict and after the motion for new trial had been overruled, all relating to the same matter. In these bills it is claimed the prosecuting attorney used the following language: “It is in the power of the defendant to show what manner of man he is, the State can not show it; the law does not permit it. It is within the mouth of the defendant to tell what kind of a man he is, and I would like to know what kind of a man I am prosecuting and you would like to know what kind of a man you are setting in judgment on.” In the bills of exception it is shown by the allegations of appellant that when the language was used, no exception was reserved to the argument, but it is admitted that the first time it was complained of was in the amended motion for new trial, filed the 8th day of August, eight days after the verdict had been rendered and judgment entered thereon. Appellant contends that this was a direct
allusion to defendant’s failure to testify, and although it was not excepted to during the trial of the case, it was a plain violation of article 790 of the Code of Criminal Procedure, which provides that a defendant may be permitted to testify in his own behalf, but his failure to testify shall not be considered as a circumstance against him, nor shall the same be commented on or alluded to by counsel in their argument, and he also contends that the error may be assigned for the first time after verdict in the motion for a new trial. This contention, we think, contrary not only to the trend of decisions of this court, but contrary to the provisions of the Code of Criminal Procedure. It has always been the rule in this court that evidence admitted on the trial, no matter how hurtful or harmful, if unobjected to during the trial of the case, and complained of for the first time after verdict in the motion for new trial, comes too late and presents no ground for reversal of the case, although if objected to at the time it was offered during the trial it would have presented ground for reversal. Wright v. State, 35 Texas Crim. Rep., 367; Gonzales v. State, 30 Texas Crim. App., 203; Simon v. State, 31 Texas Crim. Rep., 186, and cases cited under subdivision 1, section 1183, White’s Ann. Code of Criminal Procedure, where the rule is stated to be: “A party can not be heard to complain of illegal and incompetent evidence to which he did not object at the time of its introduction.” The law in these instances says certain testimony is inadmissible, yet if not objected to when offered, it is too late to complain of the matter after the trial is completed and verdict rendered.
It was formerly the rule in this State, that objections to the charge of the court and errors pointed out therein for the first time in the motion for a new trial could be considered by this court, but the Legislature deemed this rule inadvisable, and changed it by specific legislative enactment. In chapter 138, of the Acts of the regular session of the Thirty-third Legislature (p. 878, Session Acts), it is provided that if the charge is erroneous, the judgment shall not be reversed unless the error was pointed out before the charge was read to the jury. And so urgent did they deem this matter the law declares “the fact that there are many reversals in criminal cases caused by errors in the charge of the court due to the fact that such errors were not pointed out to the trial judge before the charge was given, creates an emergency and imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and that this Act be in effect from and after its passage, and it is so enacted.” Thus it is made plain that if we follow the plain spirit, intent and language of our Code of Criminal Procedure, if error be committed in the trial of the case, such error must be excepted to at the time of and during the trial, or we must not consider such matters on appeal. It was the evident intent and purpose of the Legislature to provide that any error committed during the trial. of a case must be excepted to at that time to give the trial court a chance to correct its error, or the matter will be considered as waived, and this court shall not reverse a case on account of any error that appellant did not consider of sufficient importance to complain
of during the trial. As to the wisdom of this rule, or its fairness and justness, we do not feel called upon to express an opinion. If it is deemed hurtful and harmful, inequitable and unjust, an appeal should be made to the law-making body, the Legislature, to change it, and the appeal should not be made to us to annul its provisions.
However, appellant contends that the use of such language by the prosecuting attorney was such an error that if the court’s attention had been called to it by reserving an exception at the time, it was such an error that the court could not have remedied, therefore it was not necessary to except to it at the time, but it could be complained of for the first time after verdict in the motion for a new trial. It has-been held in this State, and in Illinois, Indiana, and Mississippi, that if counsel for the State refers to the defendant’s failure to testify, the withdrawal of the obnoxious remarks, and the instructions of the court to disregard them, will not cure the error. To this rule, if an open question, the writer would not give his assent, for the great weight of authority is against such rule. In the Encyclopedia of Law, vol. 2, page 724, it is said: “The weight of authority fairly sustains the proposition that the court may repair the injury by excluding the comments and properly admonishing the jury,” citing State v. Chisnell, 36 W. Va., 659; Com. v. Harlow, 110 Mass., 411; State v. Graham, 62 Iowa, 108; Calkins v. State, 18 Ohio, 366; People v. Hess, 85 Mich., 128; People v. Rose, 4 N. Y. Supp., 787; Ruloff v. People, 45 N. Y., 213, which is referred to as a leading case.
In the American & English Encyclopedia of Pleading and Practice, vol. 5, page 340, it is said that “in some jurisdictions it is held that where unwarranted and prejudicial comment is made upon the' prisoner’s neglect to testify, the proceedings thereby become so fatally infected that a withdrawal of the obnoxious remarks and instructions of the court to the jury to disregard them can not he held to neutralize their pernicious effect.
Bui the weight of authority
fairly sustains the proposition that the court may repair the injury by excluding the comments and property admonishing the jury,” citing Dimmick v. United States, 121 Fed. Rep., 638; Wright v. United States, 108 Fed. Rep., 805; Lee v. State, 73 Ark., 148; State v. Buxton, 79 Conn., 477; Robinson v. State, 82 Ga., 535; United States v. Kuntze, 2 Iowa, 480; Barnes v. Commonwealth, 101 Ky., 556; People v. Hess, 85 Mich., 128; State v. Killeher, 201 Mo., 614; People v. Hoch, 150 N. Y., 291; Williams v. State, 30 Ohio, 342; State v. Harrison, 145 N. C., 408; State v. Howard, 35 S. C., 197; State v. Young, 74 Vt., 478; Dunn v. State, 118 Wis., 82; Price v. State, 77 Va., 393.
Many other cases could he cited sustaining the rule that if the court property reprimands counsel and instructs the jury that they must not consider such comment, it will not he ground for reversal of the case, but as this court has adhered to the rule, that such instmctiofis will not cure the error, we would not be willing to overrule this unbroken line of decisions where the remarks were objected to and excepted to at the time they were uttered and while the trial was still in progress.
Appellant cites us cases rendered by this court sustaining that rule, but in each and every case cited by appellant the remarks were objected to and exception reserved at the time they were uttered and while the case was still on trial. In none of them was the exception reserved and objection made for the first time after verdict in the motion for new trial.
But what is the reason for the rule, that the objection must be made and exception reserved at the time the argument is made, and during the progress of the trial? Appellant’s able counsel insist and urge that there is no sound reason for such rule; that as this court has held that the court can not cure the error by withdrawal of the remarks and the court instructing the jury not to consider them, there is no reason why the objection can not be made after verdict in the motion for new trial as well as during the trial and at the time the argument is made. At first blush, the reasoning of appellant’s counsel would appear sound, but in Texas and those States which hold that a reference to defendant’s failure to testify is an incurable error, it is also held that in case of such improper remarks, the proper practice is to except to the remarks, and request the court to discharge the jury from a further consideration of the case. In the case of Coffman v. State, 73 Texas Crim. Rep., 295, 165 S. W. Rep., 939, this court held, where the witness, Miss Lizzie Barnes, had testified that she had “testified on the former trial when the defendant got the death sentence,” that as the trial court at the time, when the exception was reserved, offered appellant the privilege of withdrawing the case from the jury, and to discharge the jury from a further consideration of the case, which offer appellant’s counsel refused to accept, that the bill did not present reversible error. Our Code provides that the result of tbe former trial shall not be referred to, as it also provides that the failure of the defendant to testify shall not be alluded to. And when either of these events happen, it is proper for the court to allow the defendant to have the case withdrawn from the jury, the jury discharged, and a new jury empanelled to try the case. But if appellant and his counsel, knowing that such error has been committed, proceed with the trial without objection, take chances on a verdict of acquittal, and in case it results adversely to them, then seek to raise such objection, it comes too late. The courts can not be trifled with, and their time occupied, and the necessary expense incurred to no good purpose. If one on trial thinks irreparable injury has been done him, and he can not by reason thereof secure fair consideration at the hands of the jury, he should promptly object and ask that the jury be discharged, and if such- request is not complied with, it will be our duty and our pleasure, if the remarks are such that may have been harmful to him, to see that he gets another trial before a jury uninfluenced by such improper conduct. But we can not sanction the practice of appellant and his counsel sitting idly by, without calling the attention of the trial court to what to them seems hurtful and damaging argument, speculating op. the result and taking chances on acquittal, with the intention, if the trial results adversely to them, to seek to have the verdict set aside on account of a matter of which they were aware,
but did not complain of when it occurred. This, to our minds, is not dealing fairly with the trial court, and is not in accordance with that well known rule of law that he who seeks relief in the courts of his country must do so with clean hands. We do not wish to be understood as censuring counsel for appellant for raising this question. The attorney who now represents appellant and who presented the bill of exceptions for approval, was not of counsel for appellant on the trial of the case, but was called into the case after verdict and he is not to be censured nor blamed, but commended, for raising every question which he thought might prove advantageous to his client, but he, in the bill admits, and in his argument before this court admits, that at the time the remarks of State’s counsel were made, no objection was made to such argument, and no exceptions attempted to be reserved until after the verdict was rendered, and it is our opinion that it was then too late to complain.
We have written at length on the hills as if they were properly verified and certified to by the trial judge.,. In the writer’s opinion, however, the bills are not verified in a way which would authorize us to conclude from them alone that the district attorney used the remarks complained of. The bills are approved with the qualification that if the language imputed to him was used by the district attorney, the court did not hear it; that if such remarks were used, they were not excepted to, and his attention was not called to it until such language was assigned as error in the motion for new trial. Counsel for appellant admits that no exception was reserved, and the first time the language was complained of was in the motion for new trial. The allegation in the motion for new trial does not verify the fact that the language was used, and the court, in our opinion, does not do so in acting on the bill, for he says if such language was used he did not hear it. However, we have treated the matter as though it whs properly verified, and hold that it was too late after verdict to reserve an exception to the remarks used on the trial of the case, and that when no such exception is reserved at that time, the matter will be considered as waived.
The judgment is affirmed.
Affirmed.