Appellant insists that it was error for us to uphold the refusal of the testimony of a number of witnesses by whom he expected to prove his good reputation for truth and veracity, and states in his motion that as a fact said witnesses were offered to prove said reputation after appellant had testified. In the light of his insistence we have again examined the record. The statement of facts shows that each of the witnesses named took the stand and testified before appellant did so. Neither in the statement of facts nor in the transcript do we find anything showing that they were afterward offered or that they took the stand after appellant became a witness. As far as we are able to ascertain they were on the witness stand but once, and that one time was prior to appellant becoming a witness. The bill of exceptions presenting this complaint states: "Be it remembered, that upon trial of the above case Sam Smith, N.C. Hix, et al., each and all being upon the witness stand, defendant proposed to prove by each," etc. It appearing from the record that said witnesses gave testimony prior to appellant, and, as stated in the bill of exceptions, that "while on the witness stand each was asked" about appellant's reputation, and there being nothing suggesting a subsequent offer of the witnesses or the testimony, we are forced to conclude that out statement in the original opinion, and our disposition of this matter, was correct.
Appellant renews his complaint of the fact that A. A. Dunlap was not allowed to explain why he had paid a fine for J. B. Dunlap for carrying a pistol, J. B. Dunlap was not on trial and was not a witness in this case, and we are unable to see any reason why appellant should have injected the issue of J. B. Dunlap's reputation in this record, or why he should have undertaken to prove that J. B. Dunlap had never been convicted for a felony or any other offense, but having done so, we see no objection to the court permitting the same witnesses, who testified to the above facts for the defendant, being asked if one of them had not paid a fine for J. B. Dunlap for carrying a pistol. The proposition of undertaking to explain why witness had paid the fine seems to us to shed no possible light on the guilt or innocence of this defendant. It could consist either only of hearsay testimony or the opinion of the witness.
Appellant insists again that his defensive theories were not presented to the jury. The learned trial court gave his special charges Nos. 1 and 2. In the first the jury were told that if from the evidence they believed that J. B. Dunlap or some third party had put the whiskey in appellant's car, and that the latter did not know it was there, — or if the jury had a reasonable doubt of such fact, he should be acquitted. In the other, the jury were told that before they could convict in this case they must believe from the evidence *Page 380 beyond a reasonable doubt that appellant knew the whiskey was in the car, and also that he either placed it there or permitted J. B. Dunlap or some third party to put it there, and further that they must believe beyond a reasonable doubt that appellant knew it was whiskey that was in the car and that he had control and possession thereof. The court having given these charges, we see no possible room for complaint on the ground that his defensive theories were not presented.
The case was not on circumstantial evidence. The car admitted to be appellant's was driven down the alley and the officers identified appellant positively as the party driving the car. After appellant got out of it it was driven a little farther and the officers went immediately to where the car was stopped and found in it the whiskey. The fact that appellant denied having driven the car, and denied any knowledge of the presence of the whiskey in the car, and affirmed that he lent the car to a stranger, but injects the theory of contradictory testimony in the case. These contradictions were for the jury to solve, and in their solution the State relied on the positive testimony of its witnesses to the identity of appellant and he relied upon his testimony to the contrary.
Being unable to agree with any of appellant's contentions, the motion for rehearing will be overruled.
Overruled.