The point was made in the trial court and is brought here for review that appellant, being a negro, was the subject of intentional discrimination in the exclusion of negroes from the grand jury. The question was raised for the first time on motion for new trial. Whether it is waived by failing to present it at an earlier stage of the proceedings we need not consider for the reason that the bills preserved failed to disclose that any evidence was introduced supporting the averment in the motion. It is intimated in the bills that the court excluded evidence, but the nature and character of the evidence is not revealed. It was incumbent upon the appellant to sustain his attack upon the indictment and the organization of the grand jury by evidence. His failure to do so deprives this court of the opportunity to determine whether his motion was true or not. The trial judge having overruled it, and in the absence of knowledge of facts upon which he acted, we must presume that his ruling is correct. Whitney v. State, 43 Texas Crim. Rep., 197; Hemphill v. State, 75 Texas Crim. Rep., 63, 170 S. W. Rep.. 155; Vernon's Texas Crim. Statutes, Vol. 2, p. 180, Art. 389 and note. The judgment is affirmed.

Affirmed.

DAVE FAUST V. THE STATE.

No. 6454. Decided November 30, 1921.

1.—Theft of Turkeys-Misdemeanor-Charge of Court-Rule Stated.

Since the amendment of Article 735, and succeeding Articles C. C. P.. it has been the uniform holding of this court that the question of special charges in misdemeanor cases cannot be raised for the first time in motion for new trial.

2-Same-Accomplice-Motion for New Trial-Sufficiency of the Evidence.

Where, upon trial of theft of turkeys, the evidence sufficiently showed that outside of anything the accomplice may have testified to, it was of an inculpatory character and not only tended, but strongly tended to show defendant's guilty connection with the taking of the turkeys, there was no reversible error.

Appeal from the District Court of Hamilton. Tried below before the Honorable J. R. McClellan.

Appeal from a conviction of theft of turkeys; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

S. R. Allen, for appellant.-On question of accomplice testimony: Buchanan v. State, 24 S. W. Rep., 895; Johnson v. State, 32 id., 1041.

R. G. Storey, Assistant Attorney General, for the State.-On question of requested charges: Burrus v. State, 172 S. W. Rep., 981; Gentry v. State, 136 id., 50.

HAWKINS, JUDGE.-Appellant was convicted upon a charge of theft of turkeys, punishment being assessed at two years in the penitentiary.

This is a companion case to No. 6457, State v. Roy Cunningham, 90 Texas Crim. Rep., —, this day decided. There are no bills of exception in the record. An attempt is made to raise for the first time by motion for new trial several objections to the court's charge. No objections to the charge were filed at the time of trial; no special charges were requested correcting any supposed errors. Since the amendment of 1913 to Article 735, and succeeding Articles, C. C. P. it has been the uniform holding of this court that such questions cannot be raised for the first time in motion for new trial. (See authorities on page 525, Vernon's C. C. P., Note 61).

The only question we can consider is, "was the accomplice witness sufficiently corroborated?" Rabey, the accomplice, makes out a complete case. According to his testimony he, Cunningham, and appellant went on a turkey stealing excursion, using appellant's car. That the car was left near the premises of Betts, the owner of the turkeys, appellant remaining in charge of the car while Rabey and Cunningham got the turkeys and carried them to the car. That they then took them in the car to Walnut Springs where Cunningham sold them. Applying the rule of excluding the accomplice testimony, let us examine the testimony of the other witnesses to ascertain if there is any inculpatory evidence tending to connect appellant with the commission of the offense.

Betts tesified that the turkeys roosted on the lot fence. He missed them early in the morning. Feathers were scattered around near the roosting place. From this point he followed the tracks of two men to a point where a car had been. More feathers appeared at this point. The right back tire on this car left impressions which showed it to have been a "diamond" tread casing, the other back casing showed to have been a "knobby" tread. Some days after the theft witness examined appellant's car, and found the back casings were of a kind. corresponding to the impressions left on the ground. N. J. Seale saw appellant in his barber shop in Walnut Springs about 8:30 or 9:00 o'clock on the morning after the turkeys were stolen. Cunningham and Rabey were in the shop warming when appellant came in. After they left he told witness who they were, and left in a few minutes himself. The witness Polnax saw appellant in Walnut Springs on the same morning. Upon being asked what he was doing there appellant told him some boys had given him ten dollars to use his car and that he had come down with them. Heard something said about selling turkeys,

and appellant told him the boys were moving from around Morgan; that they were both married, and that their wives would object to them selling the turkeys if they knew it. Witness saw the other two boys drive the car to the produce house where the turkeys were sold. Appellant was not in the car with them when witness saw them. He walked up town. This was about seven o'clock in the morning. Witness Williams, talked to appellant about the turkeys. He first denied any knowledge of them. Later told witness he had driven some ladies to Morgan late at night, and had taken Rabey with him for company. While on this trip he said they found a fellow, who said his name was Cunningham, on the side of the road about one or two o'clock with some turkeys, who gave him ten dollars to bring him and the turkeys to Walnut Springs. Witness had seen appellant, Rabey and Cunningham together in Hico several times.

We have not undertaken to set out the evidence at any length, but sufficiently, we think, to show that outside of anything the accomplice may have testified to, it was of an inculpatory character and not only tended, but strongly tended to show appellant's guilty connection with the taking of the turkeys.

The judgment of the trial court is affirmed.

Affirmed.

W. E. STALLING V. THE STATE.

No. 6366. Decided November 23, 1921.

1.-Motor Vehicle-Highway-Driver Rendering Necessary Aid-Validity of

Statute.

Article 820-m, supplement to Vernon's Penal Code, is valid with certain interpretations and limitations. Following Scott v. State, 90 Texas Crim. Rep., 100.

2. Same-Charge of Court-Knowledge of Collision-Statutes Construed. Where, upon trial of a violation of Article 820-m, supplement to Vernon's Penal Code, requiring that when an automobile strikes a person the driver shall stop and render necessary aid, the defendant contended that there was error in the court's charge in failing to submit to the jury, under the facts in the instant case, the defendant's knowledge of collision, and the trial court took the view that under the statute, under which this prosecution was had knowledge or intent on the part of the defendant was not a part of the offense; held, that such charge in the instant case, under the facts, was reversible error.

3.-Same-Statutes Construed-Want of Knowledge of Collision.

The verbiage of the statute, Article 820-m, supra, is such as to necessarily imply that want of knowledge of the collision would excuse a compliance with the statute. Following Scott v. State, 90 Texas Crim. Rep., 100, recently decided.

4.-Same-Knowingly-Charge of Court-Statutes Construed.

It is true that the word "knowingly" is not included in the Act of the Legislature, and doubtless, for the court to instruct upon that subject in every case would be unnecessary; but in a case, like the present one, when the evidence leaves the question of defendant's knowledge of the accident in a condition that the solution is a question for the jury, it is incumbent upon the court. in response to proper exception, to instruct the jury that the want of knowledge of the accident would excuse the failure to stop and render aid. Following Vaughn v. State, 86 Texas Crim. Rep., 258, and other

cases.

5.-Same-Argument of Counsel-Inflammatory Remarks-Reversible Error. Where, upon trial of vioiating the statute requiring that when an automobile strikes a person the driver shall stop and render necessary aid, counsel for the State, in his argument to the jury, said. "This defendant is guilty of one of the most damnable murders ever committed in Dallas County. His act in murdering Mrs. Bird Patterson by running over her with an automobile shows him to be a man regardless of social duty," to which counsel for defendant promptly objected, and requested a charge withdrawing it, of which the court took no notice, the same was reversible error; although there was no written request to charge the jury to disregard said argument. Following Flores v. State, 82 Texas Crim. Rep., 107 and other

cases.

6.—Same—Argument of Counsel-Case Stated-Reversible Error.

Where, upon trial of neglect or failure to render necessary aid after striking a person with an automobile, etc., counsel for the State remarked that defendant was guilty of a damnable murder. etc., its obvious tendency was to divert the minds of the jury from the real issue, and to bring them to the belief that it was within their province and duty to punish the defendant for the death of the deceased, the same was improper and reversible error. Following Gusters v. State, 87 Texas Crim. Rep., 181, and other

cases.

Appeal from the Criminal District Court of Dallas. Tried below. before the Honorable C. A. Pippen.

Appeal from a conviction of a violation of the statute which requires the driver of an automobile, when he strikes a person on the highway to render necessary aid, etc., penalty; five years imprisonment in the penitentiary.

The opinion states the case.

W. W. Nelms, for appellant.—Cited cases in opinion.

R. H. Hamilton, Assistant Attorney General, for the State.

MORROW, PRESIDING JUDGE.-Appellant is sentenced to finement in the penitentiary for a period of five years for violating the statute requiring that when an automobile strikes a person the driver shall stop and render the necessary aid. See Art. 820m, Supplement to Vernon's Penal Code. The validity of the statute, with certain interpretations and limitations, has been sanctioned by this court in the case of Scott v. State, No. 5965, 90 Texas Crim. Rep., 100.

In the instant case, Mrs. Patterson, while walking in company with her husband upon one of the streets of Dallas, Texas, at night-time, was struck by an automobile and killed. The driver of the car failed to stop, and the appellant was charged with the offense. Circumstances were relied upon by the state to identify him. He denied his identity and introduced evidence tending to prove an alibi. The jury settled the conflicting theories against the appellant and determined that he was the driver of the car and that he failed to stop and render aid after the car struck the deceased.

In addition to an attack upon the validity of the law upon which the prosecution is founded, several complaints are directed against the rulings of the trial judge on questions of practice. In one of his criticisms of the charge of the court, the appellant contends that there was error in failing to submit to the jury appellant's knowledge of the collision. The learned trial judge, in commenting upon the bill of exceptions, states that "the statute under which this prosecution was had does not make knowledge or intent a part of the offense, and the evidence does not raise the issue of either." It is true that the appellant relies upon evidence of alibi. This, however, did not deprive him of the right to have submitted to the jury any other defensive theory sanctioned by law which arose from the evidence. The night was dark and cloudy. He admitted, in his testimony, that on the same evening he was driving an automobile which the circumstances, as determined by the jury, identified as the one which caused the injury. It was undisputed that the car which struck Mrs. Patterson did not stop after striking her. It was claimed by some of the state's witnesses that it was going at a high rate of speed, about thirty-five miles per hour, and after the accident continued its course. There is evidence from state's witnesses that:

"The automobile just flashed out on to those car tracks and made a bounce which made a noise and I heard a woman scream and heard a crash like two cars run together. I didn't see the car hit anybody, just heard the scream, and I really thought it was somebody that was in the car; the car was going so fast it swerved over toward the left."

Another witness said that just after the car struck Mrs. Patterson it swerved a little to the right, hesitated, and then left; that the car did not stop; that no one got out to render any assistance.

Another said:

"I ran out of the house and saw two people lying in the street; it was a man and a woman. There was an automobile slowing up in Tenth Street, right in front, or a little past. I saw this car slow up,