Appellant files a motion showing extensive research and care in its preparation. He presents only two propositions, viz.: that the court should have let him prove his good reputation, and, second, that the argument used by the state's attorney was improper and prejudicial. A review of the authorities cited in the motion, together with a re-examination of the record, fails to convince us of the error of our former opinion. The matter relied upon as giving appellant the right to prove his reputation is set out fully in the original opinion. Without extended discussion, we are of opinion that if appellant while a witness had admitted, in answer to the County *Page 24 Attorney's question, that he did tell the County Attorney that if he had sold any liquor to Woodard he could not remember it, this would not have afforded him any ground for attempting to prove his reputation. We are entirely unable to see how the fact that he would neither affirm nor deny having made the statement to the County Attorney, gives him any such right. In the able motion for rehearing appellant's counsel ingeniously argues matters imaginative into the jury's possible construction of the questions, which we do not think at all involved. The authorities cited in the motion present cases where the accused was a stranger and where the cross-examination was very much more rigid apparently than here. The accused could hardly be called a stranger. He had lived in Collin County two years next before the trial, and had been a long time resident of the county prior to that time. The bills of exception relating to the argument complained of are illustrated by the one set out in the original opinion. The prosecuting witness testified that he was before the grand jury, and that if he had not been before the grand jury he would not be here before the trial court. In his argument to the jury the state's counsel referred to said witness as having been forced to go before the grand jury to testify. The court each time this occurred instructed the jury not to consider it and told counsel for the state to omit reference to the use of any force. We are unable to perceive the harmful character of such argument, but the learned trial judge, out of caution, instructed the jury not to pay any attention to it. We are not led to believe that the matter comes within any of the authorities which hold that if the matter be of such prejudicial character as that an instruction not to consider same, could not remove from the minds of the jury the evil effect of the argument, the case should be reversed.
Being unable to agree with the contentions made by appellant, the motion for rehearing will be overruled.
Overruled.