At a former day *Page 606 of the term the judgment herein was reversed and remanded by the court. The State has filed a motion for rehearing. My brethren in an opinion written by Judge Prendergast have decided to grant the rehearing and now affirm the judgment. I can not agree with them in this disposition of the case. After a review of the matters involved in the appeal, and the opinion on rehearing as written by my brother Prendergast, I am more firmly convinced that the original opinion is correct. I do not propose to go into any lengthy discussion of the matters involved. Many cases could be cited holding that when improper questions are asked and not answered, and where objections have been sustained and the answers excluded, do not constitute reversible error, but in those cases it was also held that no injury was shown. The cases further hold that if injury is shown, then the error is reversible, although the answers were excluded. It has also been held that even where illegal evidence has been admitted, that may not always cause a reversal, but these holdings have always been qualified by the statement that there was no injury shown by its admission. I do not propose to go into a discussion of those cases or those questions now. There are many cases where these questions have arisen wherein the judgments have been reversed because injury was shown. Wherever injury is shown or probably shown, then the judgment under the authorities should be reversed. Of course, these questions sometimes come on very close lines. Wherever matters of this character arise, the rule ought to be in consonance with the basic principle of our law, which is that everyone accused of crime shall be presumed innocent until his guilt is established beyond a reasonable doubt. Such doubt is always to be legally solved in favor of innocence and not in favor of guilt. My brethren take the other view and solves this doubt against the accused and in favor of his guilt. This is legally wrong. The safe, legal rules, keeping in mind the above stated propositions of fair trial, presumption of innocence, and reasonable doubt, which should govern this court, may be summed up as follows: (1) If the evidence, being illegal or unauthorized, probably leads to a conviction, it is error of a reversible nature to admit it. This rule would seem to be correct without discussion. (2) If guilt be conceded, the evidence admitted is unauthorized by law and the conviction carries by the judgment a greater punishment than the minimum, then the error is clearly erroneous. This is not debatable in our jurisprudence. There is a third proposition which may be thus stated: that where the State by asking illegal questions of a damaging nature, although the answers are excluded, or the witness not permitted to answer, yet if the conviction occurs and the punishment is a heavy one or beyond the minimum, and this illegal conduct and manner of examination may have led to a punishment greater than the minimum, or even have led to the conviction itself, and turned the reasonable doubt and the presumption of innocence against the defendant, then it ought to be reversible *Page 607 error. Such I understand to be the settled law in this State. Now, applying those rules to this case: We find that judgment was for two hundred dollars and ninety days imprisonment in jail. The minimum punishment for the offense charged in the indictment is one hundred dollar fine. The defendant here then has allotted to him one hundred dollars in excess of the minimum fine, and in addition ninety days in jail. That the questions asked with reference to appellant's attack on a woman, and the matters as set out in the bill of exceptions and mentioned by my brethren, were illegal is conceded. It is sought to be avoided, however, because the answers were not permitted, but it got before the jury, and in such way as to make them believe that the matter did occur, and the verdict is responsive to that theory of their conclusion.
As to the admission of the testimony in regard to the absence of one of the State's main witnesses, under all the authorities this testimony is not only not admissible, but so far as I am aware, has been held fatally inadmissible and reversible. The defendant could not, under the facts of this case, be held responsible for the absence of the State witness. He had nothing to do with his absence, and it was not sought to connect him with the fact that the witness was absent. This absence of the State witness was improperly admitted against the defendant, and this by all the cases. It was a seriously contested issue before the jury that appellant had the pistol at the time and place contended by the State. One State witness testified that he did have it, but the evidence otherwise shows that he did not. Now, in this condition of the record the absence of the State witness without fault on the part of the defendant is thrown in the scale against him, and illegal testimony in regard to some assault that he may have made upon a woman some time previously, were sought to be injected into the case against him. That the conduct of the prosecuting officer was wrong in trying to inject this illegal matter in the case is conceded by my brethren, but they claim it is not of such nature as to require a reversal of the judgment. That appellant was not responsible for the absence of the State witness is clearly demonstrated by the record, and yet these two matters are thrown into the scale and its injurious effect is reflected in the extreme punishment imposed by the verdict of the jury. How this judgment could be affirmed is to my mind incomprehensible.
I still believe the original opinion is correct, and that the motion for rehearing ought to be overruled. I therefore respectfully enter this my dissent to the affirmance. *Page 608