Offense, the unlawful possession for the purpose of sale of spiritous liquor capable of producing intoxication, penalty one year in the penitentiary.
Complaint is made of the following matter: While the witness for the state, Smith Houston, was testifying, the District Attorney was permitted to propound the following question: "Was the liquor intoxicating?" Counsel for appellant objected to said question as repetition, whereupon the court in sustaining the objection remarked: "He has already testified he drank it and that it was intoxicating." The bill fails to show, as it should, what witness Houston had theretofore testified. The statement of facts shows, however, that he had testified that the liquor was intoxicating.
It has been frequently held that the remark of a trial judge not calculated to operate prejudicially to the accused was not reversible error. Wilson v. State, 17 Tex.Crim. App. 535. House v. State, 19 Tex.Crim. App. 239; Wofford v. State,60 Tex. Crim. 628; Branch's P. C., Sec. 270. The effect of the remark of the court was merely to repeat the contention of
*Page 341 counsel of appellant in the presence of the jury and we are not able to perceive how the same could have injured appellant.
The further contention is made that there was error because the District Attorney in his questions referred to the liquor in question as whiskey when it was in fact brandy. The court sustained appellant's objection but he seems to present the point that the mere asking of the question was so highly prejudicial as to constitute error. In a brief filed by appellant no authorities are cited and we do not believe any authority exists to support appellant's contention that a trifling matter of this kind would justify a reversal.
The evidence in our opinion being sufficient and no errors appearing in the record, the judgment is affirmed.
Affirmed.
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.
ON MOTION FOR REHEARING.