¶1The state's motion for rehearing does not appeal to us as presenting any good reason for changing the views expressed in our original opinion.
¶2The court charged the jury that if the liquor found by the officers was put there by someone other than appellant he should be acquitted. The refusal of the continuance denied him evidence on that very issue.
¶3Some question is raised in the state's motion as to whether bill of exception number twelve, complaining of the argument of the state's attorney, was properly understood by us, it being contended that the court did not certify that the argument was "prejudicial *236 and uncalled for," but that such was only the reason advanced by appellant's attorney in challenging the argument. We are quite sure the learned trial judge did not intend to certify that the argument was prejudicial and uncalled for, and that if he had thought so he would have granted a new trial. He doubtless understood the bill to be as contended for by the state, but the bill is before us and must be appraised on its face. The portion of the bill referred to does not appear as ground of objection to the argument, nor as reasons for excepting to the ruling of the court, but appears as the statement of a fact. The bill is almost exactly like the one dealt with in Roberts v. State, 27 S.W.2d 159.
¶4The certificate of the learned trial judge attached to the state's motion can not be considered. In Texas Jurisprudence, Vol. 4, Sec. 329, is found this text.
¶5"A bill can not be impeached or contradicted by affidavits if it is not contended that the bill is not correctly copied into the record or that any fraud or artifice was practiced in securing its approval and if no question as to the jurisdiction of the appellate court is involved."
¶6Supporting the text many cases are cited, notably Howard v. State, 77 Tex.Crim. R., 178 S.W. 506. We call especial attention to the language in the opinion on rehearing in that case. See also Hemphill v. State, 72 Tex.Crim. R.,165 S.W. 462, 51 L. R. A. (N. S.) 914; Magruder v. State, 47 Tex. Crim. 465,84 S.W. 587.
¶7If the statement that the argument complained of "was highly prejudicial to rights of the defendant and uncalled for" be eliminated from bill of exception number twelve the other recitals in the bill are sufficient to show that under the facts of the present case the argument complained of was improper. Apparently appellant had done all the law required of him to secure the presence of his wife (who had sued him for divorce). A continuance had been denied because of the wife's absence. The prosecuting attorney knowing this indulged in the argument set out in our original opinion. It was manifestly unfair and should not have been made nor permitted.
¶8The motion for rehearing is overruled.