DISSENTING OPINION. I feel sure that the original opinion reversing the judgment was correct and that we fell into error in granting the state's motion for rehearing.
It appears from bill of exception number one that after the jury had been selected in this case the trial judge was discharging the *Page 467 other jurors who had not been selected in this case at which time the private prosecutor in the presence and hearing of the jury which had been selected objected to excusing the other jurors for the week because the state had another indictment against appellant and would insist on an immediate trial under that indictment as soon as the present trial was over. Upon objection from appellant's counsel the court properly instructed the jury not to regard the statement of the private prosecutor. That his conduct was erroneous and got before the jury in the present case a fact prejudicial to appellant which at that time would not have been provable under any circumstances, is beyond doubt. The trial judge did all he could to obviate the damage when he instructed the jury to disregard the statement which had been made in their presence. It appears from bill of exception number two that appellant testified in his own behalf and upon cross examination he was asked by the district attorney "if it was not a fact that he was now under indictment for three other offenses in this court?" to which the witness replied that he was under two other indictments. At this point counsel for appellant objected to this inquiry because "the other indictments all grew out of the same transaction, and that said testimony was illegal, inflammatory and highly prejudicial." Up to this point in the bill it appears that the claim that the other indictments inquired about grew out of the same transaction was embraced in the bill as a ground of objection only. However, the bill further shows that when the objection was made the court advised the district attorney that he would hear from him upon that proposition, to which the district attorney replied that he did not have the authorities at hand and the court advised appellant's counsel that he would not rule upon the matter at that time but would take the matter under advisement and would rule later. What investigation the court made with reference to the question this court has no way of knowing, but it does appear from said bill number two that no ruling was made upon the point until the court gave his charge to the jury, in which appears the following instruction:
"Evidence has been introduced tending to show that the defendant is under two other indictments growing out of the same transaction upon which this prosecution is charged; you are charged that such evidence is withdrawn from your consideration and you will not consider the same for any purpose."
If it had developed upon cross-examination of appellant that other indictments were pending against him which were properly provable as affecting his credibility as a witness this perhaps would have *Page 468 cured the error committed by the private prosecutor in having improperly gotten before the jury the fact that there were other indictments pending against appellant. This court is not advised by anything in the record showing specifically just what was charged against appellant in the other indictments referred to, but it is perfectly apparent from bill of exception number two that the trial judge reached the conclusion that the state had no right to inquire about those indictments even for the purpose of impeachment. That being true, and this court not being advised further than as is reflected by the ruling of the trial court, we must assume that his conclusion was correct, and that it was an improper inquiry on the part of the state regarding the matter. The court again undertook to cure the error by instructing the jury that the evidence regarding the other indictments should not be regarded for any purpose. It thus appears that in two ways, by action of the private prosecutor in the statement made by him and in the conduct of the district attorney in the question asked by him, was gotten before the jury the fact that other indictments were pending against appellant which the court decided could not even be inquired into for the purpose of impeachment. We must presume that this finding of the trial judge was correct unless the contrary appears. It does not so appear from this record.
This defendant was given a term of seven years for assault with intent to rob, the minimum punishment for which was two years. To say the least of it, the case upon its facts presents some curious situations, and one in which this court would not be warranted in saying that ordinarily the punishment assessed would have been inflicted. The judgment in this case ought not to be affirmed unless upon the theory that the errors committed can to our entire satisfaction be held harmless. Something in this case caused the jury to inflict a punishment much above the minimum and I can not get my consent to hold that it was not brought about by the improper conduct referred to.
I think appellant's motion for rehearing should be granted, and that the original judgment of reversal should stand, and respectfully record my dissent to any other disposition of the case. *Page 469