We were in error in our original opinion wherein we refused to consider bills of exceptions Nos. 5, 6, 7, 9, and 10 because of the fact that same were in question and answer form. We have heretofore held that where the complaint relates solely to theasking of an improper question, of a necessity the question must be set forth in the bill. We quote from Young v. State, 243 S.W. Rep. 473: "The State's objection to bills of exception Nos. 3, 4, and 5 because in question and answer form is not tenable. The desire of appellant was to present to this court his complaint of the asking of hurtful questions, whose substantial repetition by the State is urged as injurious, and in such case the bill must set out the questions and answers complained of."
However bill No. 10 is multifarious, containing three subject matters, and will not be considered. Bill No. 6 contains testimony a portion of which we think is admissible, and is therefore overruled. Bill No. 7 we think evidences no error, the testimony evidencing a legitimate inquiry. It is observed, however, that the trial court in an excess of caution instructed the jury not to consider the same. Bill No. 9 evidences no error. Bill No. 5 however gives us concern, and is based upon the asking of the two following questions of one Hugh Caperton, a witness for appellant:
"Question: 'Do you know whether or not the place you live (being the residence of defendant) has been under a liquor injunction?'
"Question: 'Do you know of your own knowledge whether the defendant has been convicted of violating any liquor injunction?' "
The appellant was on trial for the sale of one-half pint of intoxicating liquor to an agent of the Liquor Control Board, which agent alone testified to the sale, while appellant and *Page 101 three other witnesses denied such sale. The jury gave the appellant a penalty of a fine of $500, and we are unable to say that the asking of such a line of questions was not influential at least in the giving of such a severe penalty.
We do not think appellant has had a fair trial, and the motion for a rehearing is granted, the judgment of affirmance set aside, and the judgment is now reversed and the cause remanded.