We think, on further examination, we erred in the disposition heretofore made of this case, and that the judgment of conviction should be set aside, and the cause reversed and remanded for another trial.
1. An inspection of the evidence above quoted in the original opinion will disclose the fact that it was and is a serious question whether the evidence was sufficient to support the verdict. Out of deference to the finding of the jury, and the action of the trial court in declining to grant a new trial on that ground, we felt on original submission that we were scarcely authorized to set aside the conviction on the ground of lack of evidence. This was the only question treated in the original opinion. There are, however, several other questions raised on the appeal, some of which, in view of the fact that the case will be tried again, call for our attention and notice.
2. As a criminating circumstance, the State had shown in possession of appellant soon after the alleged theft three $5 bills. Grafmiller, from whose person the theft is charged, had lost three $5 bills. To meet this evidence appellant introduced one Ed Fern, who testified that about the day before appellant's arrest he, appellant, came to his store, and that he saw one Sinclair pay him $25 — four $5 bills and the balance in silver — and that he gave one of these five dollar bills back to Sinclair on the same day. On cross-examination the State was permitted, over objection of appellant, to ask the witness for what consideration or under what circumstances this payment was made, and it developed, according to the testimony of Fern, that appellant had won this money from Sinclair in a game of cards. This was objected to for the reason that it was prejudicial, and that the tendency of it would be to prejudice appellant's cause by showing the commission of *Page 222 another offense, and would, generally, have the effect to place him in a bad light before the jury. That this might have this effect is not to be denied, and yet this would, we think, be no sufficient reason to deprive the State of the opportunity to test the accuracy of the witness' statement, and to make strict and diligent inquiry into the circumstances, the reason and the consideration for such payment.
3. This same witness also testified on cross-examination that appellant had won at the same time three dollars from him. The complaint of appellant, and the circumstances touching the inquiry in respect to the three dollars, as evidenced by the bill, is to this effect: The district attorney asked the witness Ed Fern the following question: "Is it not a fact, Ed, that gamblers sometimes have money, and sometimes they don't have any?" This question and the answer expected to be elicited thereby were objected to because same was immaterial, irrelevant and incompetent to prove or tend to prove any fact in the case, and the only object and effect of the question and answer would be to prejudice the jury against this defendant by the continued allusion, on the part of the district attorney, to the gambling question. Thereupon the court overruled the objections of appellant, and in connection with his action in so doing, made the following statement: "I will overrule your objections. It is the most material question that has been asked by the State in this trial." In reply to the question so asked, the witness answered, "Yes." The above statement, which we have taken from the bill of exceptions, is somewhat modified, and to this extent: The trial court says: "The district attorney had asked the witness three or four immaterial questions, to which no objections were made, and when objection was made to his question, the court did remark: `That is the most material question the district attorney has asked this witness.'" This we think was error. McCullar v. State, 36 Tex. Crim. 213 [36 Tex. Crim. 213]; Kirk v. State, 35 Tex. Crim. 224 [35 Tex. Crim. 224]; Cook v. State, 22 Texas Crim. App., 511; Wilson v. State, 17 Texas Crim. App., 525; Moncallo v. State, 12 Texas Crim. App., 171. We think in view of the evidence in the case, and the entire record, that while doubtless unintentional, the remark of the court on a vital question in the case must be held such an invasion of the right of the jury as to constitute reversible error.
For the reasons indicated, the motion for rehearing is granted, the affirmance is set aside, and the judgment is reversed and the cause is remanded.
Reversed and remanded.
McCord, Judge, not sitting. *Page 223