Livingston v. State

In his motion appellant urges that we were in error in the disposition made of the question raised by his first bill of exception. It appears that appellant asked the witness Davis (father of deceased) if he had not made certain statements to named parties at a designated time and place. Witness did not deny making the statement in toto, but claimed not to have made it in the way intimated by the question. Thus the jury could have assumed that the statement was substantially that attributed to him by the questions. Appellant seemed content to let it rest in this condition. Appellant having gone into the conversation we see no impropriety in permitting the state to inquire into the same subject and elicit from the witness what the conversation really was. The procedure followed is sanctioned by Article 728, C. C. P. (1925 Revision) being Art. 811 Vernon's C. C. P. of 1916. Many authorities will be found collated in the notes under old Article 811 in Vernon's C. C. P. and under Section 91, Branch's Ann. Texas P. C. We think the facts elicited do not bring this case under any of the exceptions recognized.

The motion for rehearing is overruled.

Overruled.