Two propositions are stressed in appellant's motion for rehearing which, under different circumstances, would call for a conclusion different to that reached by this court in the original opinion. The argument presented on these propositions is undoubtedly sound under a proper record. The conduct of the District Attorney in this case, in asking about numerous acts of alleged misconduct, might be reversible error had all the circumstances of the case been as viewed by appellant in his motion. However, we notice that in examining the character witnesses called by appellant, on direct examination, counsel sought to prove and did in some instances show that "prior to the date mentioned by counsel I have never heard of this boy being charged with any sort of violation of law. I have never known of him having paid a fine of any description prior to July 22, 1944." (S. F. page 160, testimony of J. D. Wheeler.) Again, on page 164, we find from the testimony of Jack Riggs, on direct examination, the identical statement above quoted. The same and similar evidence was given by other witnesses. On cross examination of these witnesses the District Attorney asked the questions complained of in the many bills of exception fully treated in the original opinion. In view of the direct testimony, we think the questions were warranted.
While testifying in his own behalf appellant was asked, on cross examination, if he was under indictment for burning the school house in Cooper. Such indictment was admitted and there *Page 491 can be no complaint that the State had a right to show the existence of such indictment. On redirect examination the appellant's counsel, according to the court's qualification of Bill No. 29, asked the following question. "I will ask you to state to the jury whether or not you are guilty of the charge of arson which the District Attorney asked you about." One might be guilty of burning the school house and still not be guilty of arson. He might be guilty of arson when acting as a principal, even though he did not actually do the burning. Consequently, the witness was being called upon to answer a question of law as well as fact. Had the inquiry been on a question of fact alone he should have been permitted to answer. The trial court's view that it was a self serving declaration would hardly be tenable. He was on the witness stand for the purpose of making self-serving declarations. That was the effect of his testimony, and properly so. The right to reach the conclusion of law, that he is not guilty of arson, is not available to the witness. For this reason the bill can not be sustained.
In the view of the writer, all other questions were disposed of in the original opinion in accordance with the holdings of this court. The motion for rehearing is overruled.