The appellant's motion to quash the special venire herein consists of five paragraphs setting forth the reasons which were offered for the court's favorable action upon said motion. The record is entirely devoid of anything suggesting that the facts were in accord with the reasons stated. Subdivision 38, page 557, Vernon's C.C.P., cites many authorities upholding the proposition that the certificate of approval of the trial court to a bill of exceptions, is not to be taken as a certificate of the truth of the grounds of objection therein stated.
Appellant again urges the error of the admission of the testimony of Faubian, Johnson, Ray and Boatenheimer, and that the charge was erroneous in failing to limit the effect of said testimony. We discussed these matters in our original opinion. It was material to show the presence of appellant and Scott in the neighborhood of the alleged robbery on the night thereof, and that they were in a car with a woman. Mr. Givens, the alleged injured party, and his wife both claimed that appellant and Scott were at their store at Dean on the night in question in a car with a woman and committed the alleged robbery. Dean was twelve miles east of Wichita Falls. Appellant vigorously denied his presence anywhere east of Wichita Falls on said night. It was in accord with all of our authorities to introduce testimony showing appellant in a car with Scott and a woman east of Wichita Falls and near Dean on the night in question. Some of the witnesses who gave this testimony stated that appellant and his party fired a pistol or pistols. Givens said the party committing the robbery had a pistol. The evidence of each of said witnesses was material and admissible. No authorities are cited holding adversely to those mentioned by us in our former opinion sustaining the proposition that there was no error in the court's failure to limit the effect of this evidence in the charge. Said evidence pertinently supported the hypothesis of the guilt of appellant, and was further admissible as impeaching the truth of his story of his movements on the evening of the robbery, and we are at some loss to know just what limitation could have been properly put thereon. No special charge was asked suggesting appellant's view of the limitation proper. We see no possible objection to the State's action in questioning the appellant with regard to his presence with Scott and the woman at the places and on the times testified to by the State witnesses on the evening of the robbery, the truth of the matters thus inquired about *Page 27 by the State being incompatible with and contradictory of appellant's statement as to his movements on said evening.
We have again reviewed the arguments of the State's attorney complained of but are not impressed that our conclusion in this regard as expressed in our original opinion was erroneous.
Being unable to agree with any of the contentions made by appellant, the motion for rehearing will be overruled.
Overruled.
ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.