Appellant renews practically the same complaints in his motion for rehearing, as upon the original submission. Responding to the motion, we have examined the record again. A son of deceased testified on direct examination that after appellant had threatened him at a dance some months before this killing, appellant reached in his pocket and pulled out a gun, which he dropped on the floor; that some one took the gun out and witness did not see it. On cross examination this witness repeated what he had said, and added that this "Was what they said." Appellant objected and asked the court to instruct the jury not to consider "that answer." The court declined to do so, saying that appellant's counsel drew out the statement. If there was any question as to the propriety of the court's action in this regard, the harmless effect of the testimony appears beyond question from facts noted in our former opinion, viz: that it was in testimony from two other persons who were nearer appellant than the witness who made the statement, — and that each of said two other parties testified that appellant had a pistol on the occasion in question.
We see no reason to alter our conclusion announced in our former opinion, the substance of which was that it was not error for the prosecuting attorney to stand before the jury in his closing argument and hold in his hand a paper which he said contained the testimony of a certain witness as written out by the court stenographer, and that he wanted the jury to get the testimony of said witness correctly because it had been mis-stated by appellant's attorney. As we have before said, there was no claim on the part of appellant that the paper did not contain a correct transcription of the testimony of the witness. In the absence of some showing of that fact, we think no error was committed.
The motion for rehearing is overruled.
Overruled. *Page 172