Appellant was convicted in the District Court of Callahan County of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.
The evidence is amply sufficient to support the verdict. Under the provisions of our statute the district judge is authorized to call a special term of his court and to impanel a grand jury as well as to proceed to try and dispose of cases on his docket. Appellant's bill of exceptions No. 1 complains of the return of the indictment against him at a special term and by a grand jury then impaneled. There is a total lack of showing of any illegality of the calling of said special term, and the impaneling of said grand jury, and the return of said indictment.
Appellant has an application for continuance. The qualification of the trial court thereto shows that one of the absent witnesses named in said application for continuance, was present at the trial but was not used as a witness. The facts attributed to the other absent witness do not appear to us to be of such materiality as to have called for the granting of the application.
The bill of exceptions complaining of the remark made by the district attorney when appellant's counsel inquired of the jury panel as to whether they belonged to the Ku Klux or the Citizens League or other organizations, is not approved by the court. It appears from the qualification to this bill that the only thing that transpired was that the district attorney stated to the court in arguing his objection to the questions being asked by appellant's attorney, that he would not ask a juror on the trial of a Mason if the juror was a Mason, that he had too much respect for the order of Masonry to insult a man by asking such question. The pertinence of the remark of the district attorney is not apparent but presents no ground for reversal.
Appellant's bills of exception Nos. 4 and 5 are multifarious, being in question and answer form and presenting a number of questions asked and objections made, the court being entirely unable to ascertain the particular ground of objection insisted upon and presented here. We call attention to the fact that one of said bills of exception is qualified by the learned trial judge by a statement of matters known personally to him which transpired out of the courtroom and not during the progress of the trial. This court could not accept or act upon such qualifications. If the trial courts desire to incorporate matters of that kind in the record they must assume the attitude of witnesses and state them as such.
There is complaint of the refusal of a peremptory instruction asked on behalf of appellant, and also of the fact that after such refusal the State was permitted to introduce other testimony. The bill of exceptions complaining of this matter does not make apparent the fact that appellant had permitted any of his witnesses to leave the *Page 64 courthouse, or that he was surprised by the introduction of such testimony, or that he was unable to meet and overcome it. The trial courts necessarily have large discretion in matters pertaining to the introduction of testimony. If appellant desired this court to sustain his objection to such proceeding, he should make it appear that he was injured thereby. The introduction of testimony at any time before the close of the argument is permissible under our practice. The same rule of discretion in the trial court applies to the testimony of a witness who was in the courtroom a part of the time another witness was testifying and whose testimony was allowed over the objection that the rule had been called for. The mere fact that a witness testifies who has not observed the rule, and that he may have heard all or part of the testimony of some other witness, would not be sufficient ground for the rejection of the testimony of the witness. It is not made to appear that the testimony heard by said witness was in relation to the same matter about which he testified, or that there was any likelihood of his being influenced thereby, or that there was any intentional violation of the rule. Unless some of these things are made to appear this court could not appraise the value of such objection.
We have examined and considered each of the complaints made by appellant, and finding no error in any of them, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. June 27, 1923.