In his motion for rehearing appellant urges that we erred in our original opinion in the disposition made of bill of exception number nine. The bill relates to a remark made by the trial judge in ruling on a question that arose during the cross-examination of Mrs. J. F. Long, it being urged that said remark was a comment on the evidence which resulted injuriously to appellant. While the court should exercise the utmost caution to prevent such questions from arising, yet it is not every comment or remark made by the trial judge that demands a reversal. (Authorities are cited in our original opinion). As said by Judge Davidson in McGee v. State, 37 Tex. Crim. 668,40 S.W. 967 — "Under the unbroken line of decisions, in order to require a reversal under such circumstances the action of the court must be reasonably calculated to operate prejudicially to the accused."
In determining this question, necessarily the whole record must be looked to. In further considering the matter it is well to get fixed in our minds what the situation was at the time the incident arose. As a circumstance tending to show guilt and tending to fix the identity of appellant as the man who had married Miss Long the State was claiming that appellant on a certain date had gone with Miss Long and the witness, Mrs. *Page 334 J. F. Long, to Boerne where appellant and Miss Long filed their declaration of intention to marry. Upon the point of signing and filing such declaration Mrs. Long testified as follows on direct examination. "He (appellant) and Wineta got out and they went into the County Clerk's office and filed intentions."
Nothing seemed to have been asked the witness on direct examination about seeing appellant sign the declaration. On cross-examination the entire testimony of the witness on the point is as follows: "As to whether or not I saw Mr. Welburn sign the declaration of intentions I will say that I stepped to the door and Wineta said, 'Mama, don't come in here,' and I stepped back and took my seat, but I saw him bent over. I do not know what they signed but they signed on some paper or something I suppose. I didn't stand there and listen. I told you that I walked away. I saw him sign it but as to whether or not he was writing on a table like this (indicating) or was bent over I will say I cannot describe that. I did not notice whether the man was standing on the inside of the cage and that there was a little thing that they signed in there. I was not feeling very well that day and did not notice. It seems to me that they were stooped over like this (indicating) and bent over. Their backs were to me. It was something high up that I saw them signing over. I knew he was writing there. I had a faint idea on one of these days of them signing something. I cannot give you a definite answer to your question as to what position he was in on the day he was signing those declarations of intentions to marry. I do not mean to back up and say that I didn't see him sign it. It is not a matter of backing up. It is a matter that I have a picture in my mind of signing something and I can't tell whether it was that day or not. I cannot remember definitely. In answer to your question about the first trip up there whether I can tell this jury that I saw him sign that instrument up there or not I will say that I can't be definite and I told you I could not be and I cannot remember definitely as to whether I saw him sign a written instrument on the 25th. In attempting to give you my best recollection as to whether or not I saw him sign something on the 22nd or did not see him sign anything on that date, I will say that I suppose I had better say that I did not see him, and I cannot say that he did sign anything. I know they walked in together. I guess I had better say that it is true I won't say I saw him sign anything and I won't say I didn't see him sign anything. They walked in and I started in with them where they file intentions and Wineta asked me to *Page 335 go out and I will say that I didn't see him sign the instrument on the 22nd but he certainly was bent over. I would rather say that on that first day I didn't see him sign anything. I did not see him get any blank paper. I was not looking. I do not remember whether I saw him sign on the second day. I cannot remember."
The State was trying to show that appellant signed a declaration, and appellant was with equal zeal contending that he did not sign it. After some statements by counsel on both sides, the court expressed himself as shown in our original opinion. What other construction than the two there suggested could have been placed upon the court's remark by the jury does not occur to us. If the situation had been reversed, that is, if appellant had been contending that he did sign the "declaration of intention" and the State contending that he did not sign it, then the possible harmful character of the remark would be obvious. We have been unable after again considering the matter most carefully to see how the remark of the court could have possibly injured appellant.
The only other matters urged as grounds for rehearing are the arguments of counsel for the State. The bills bringing the complaints forward have been again examined, and we think none of them present such occurrences as justify a reversal. It is insisted that the qualification to bill of exception number thirteen does not show that counsel for appellant indulged in improper argument in criticizing the State for not using expert witnesses to combat the evidence of the expert used by appellant on the subject of handwriting, and therefore, counsel for the State could not be excused for the improper argument shown in bill of exception number thirteen. No statement was made by State's counsel as to what could have been proven by Mr. Weaver. If the argument of appellant's counsel was not improper, and if that of State's counsel in reply thereto went further than it should, still, we are unable to see how serious harm could follow.
Appellant's motion for rehearing is overruled.
Overruled. *Page 336