It is insisted that this court was in error in holding that bills of exception Nos. 2 and 3 fail to reflect error. It appears from these bills that state's witness Reams testified that he had purchased two bottles of beer from appellant and shortly thereafter had searched appellant's residence and found therein eighteen bottles of beer; that upon cross-examination appellant's counsel asked the witness if the beer he purchased and found in the ice box was "the same as the beer had before the Dean law went into effect;" that the witness answered "I think I have answered it was beer"; that the witness was again asked the question and again answered that it was beer; that appellant's counsel insisted that the witness should answer the question he had asked, that is, whether or not it was the same character of beer as that manufactured before the enactment of the Dean law; that the district attorney objected on the ground "of repetition"; that the court stated "I think the witness has answered. Let's go ahead." The court qualified the bills of exception, over appellant's exception. Hence the bills must be considered without the qualifications.
It is insisted by appellant that it is disclosed that he was unduly restricted in his cross-examination of the witness, and that if he had been permitted he would have shown that the liquor in question was what is commonly known as "home brew." As shown in the statement of facts, the witness answered appellant's counsel on cross-examination as follows: "This stuff I testified about was beer. As to whether I do not know that is what is commonly known as 'home brew', — I know it was beer. I just know that it was beer. I do not know that it was what was commonly called 'home brew.' I know that it was beer. You ask me again whether or not it is not a fact that I know that the stuff that I testified to down there was not just what is commonly known as 'home brew' in *Page 168 this country, and I say again that I know it was beer. I do not know anything about 'home brew', but I know that it was beer. I know that this was the same stuff that was commonly known as lager beer before the whisky laws. It was just like the beer that I have bought over the bar. As to whether I know that stuff was not just like the Budweiser or lager beer that was bought over the bar, or Blue Ribbon, that it was not Budweiser, Blue Ribbon or lager beer, but that it was what is commonly made through the country by different people now, and that it is called 'home brew': It was just like that Blue Ribbon beer. It was just the same as what used to be known as Budweiser beer that was bought over the bar. As to whether it was Budweiser beer, — well, it did not have any label on it and it was not branded but it was the same beer. As to whether I am telling the jury now that it was the same beer that they had before the Dean law went into effect, I have answered that I think. It was beer. You say 'Well, what about it?' and I answer: 'It was beer.' * * * I never saw it manufactured. I don't know if it was manufactured in Monterrey, Mexico, or St. Louis, Missouri. I do not know whether it was made at home and out of yeast cakes or hops or what. I do not claim to be an expert in making 'home brew' or beer. I do not know how 'home brew' is made. I do not know. I never saw any made. The only experience I have had in making 'home brew' is just what I have heard. I know though that it what is called 'home brew' made all over this country. I do not know if that is the same as 'home brew' or not. As to whether I would or would not say that it is the same as 'home brew' I just know that it was beer."
It is observed from the foregoing that the witness had been thoroughly cross-examined by appellant's counsel as to his knowledge of the character of the liquor. Hence it would appear that appellant's counsel was not unduly restricted in his cross-examination of the witness. This court has always held that in appraising a bill of exception relating to excluded testimony the statement of facts may be consulted for the purpose of determining whether from other sources, or from the same witness, there is testimony before the jury which, in substance, is the same as that pointed out in the bill of exception as having been excluded. Clements v. State,118 Tex. Crim. 37, 42 S.W.2d 67; Martin v. State,107 Tex. Crim. 152, 295 S.W. 1098. No question of a conflict between the statement of facts and bills of exception is presented here. Hence the rule that where there is a conflict between the statement of facts and a bill of exception, the bill prevails, is not applicable. Elkins v. State,101 Tex. Crim. 377, 276 S.W. 291.
In his closing argument the district attorney used language as follows: "I may be appealing to your prejudice but I don't think I am, but want to say if we are raising men in this country to uphold the *Page 169 church and the schools then it is time to remove such cancers as Ben Davis, defendant, from this community and send him to the penitentiary where he belongs."
Further, the district attorney made remarks as follows: "I will tell what I am doing and will be sworn if they want me to, I was trying to stop the nefariousness of Ben Davis was what I was doing. You might as well buy all the plows to cultivate your farms and go out and leave them and as well as to elect your officers and then go out and leave them."
If the remarks of the district attorney were improper (and this is not conceded), the opinion is expressed that they should not work a reversal. The evidence is amply sufficient to support the conviction. Appellant received the minimum penalty.
Appellant has brought forward practically every contention urged upon the original submission of the case. In the light of the motion for rehearing we have again examined all of appellant's contentions and are led to the conclusion that the record fails to present reversible error.
The motion for rehearing is overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.