In his motion for rehearing appellant again urges that it was reversible error for the court to permit *Page 532 the question and answer by the State of the witness Harry Kendall, as follows: Q. "I will ask you if you don't know it to be a fact that his mug appears in the detectives' office up here, where they mug desperate characters, and that his mug is in other places that you know of?" A. "I heard Mr. DeWitt say in there a while ago that he was mugged, but I could not say that I know he was mugged," claiming that this was hearsay.
We considered this question fully at the time the opinion was prepared and handed down, and held the court should not permit hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying, and further, that even if the court on the issue of suspended sentence admitted pure hearsay testimony, it became harmless in the light of all the testimony and the fact that the jury assessed the lowest punishment. All of appellant's bills are along the same line. We then thought it unnecessary to take up this particular question and discuss it alone, as it was embraced within the discussion of all of them together. Neither did we then make any statement of the testimony. We will now do so.
Appellant plead for a suspended sentence. He neither testified himself nor offered any witness or other testimony in his behalf. This testimony objected to, as the record clearly shows, was offered solely to let the jury determine whether or not it would suspend his sentence. It was not offered nor admitted for any other purpose.
The uncontradicted testimony by the State showed that "just prior — two or three days before" February 5, 1916, Sammy Williams called the witness Harry Kendall into Graves's tailoring shop in Dallas, and Kendall swore: "At that time I had a conversation with Hershall Holland and Sammy Williams, . . . and Sammy Williams said that they were going to `make' the Crowdus Drug Company, and that he would have some dope on hand and asked me if I could dispose of it in any way. . . . I told them this, that if they made the joint, it could be very easily disposed of and they could get a good price for it."
Mr. Mitchell, the manager of the Crowdus Drug Company, swore that the drug company's house was burglarized on the night of February 5, 1916. The store building was five stories and a basement. That the entry was made up the fire escape and by raising a window. They broke an iron bar, and the window was locked on the inside with a padlock. This padlock they also prized open. That the narcotics of the company were kept on the third floor in a room partitioned off and locked to itself. That they used the same instrument that they entered the building with to enter that padlock to the room where they kept these narcotics. That in addition to opening the window, they had to break two locks, that on the inside of the window and the door to where these narcotics were kept so as to reach them. That they stole 130 bottles of morphine, sixteen and two-thirds ounces, worth at wholesale $7.50 an ounce, and eleven bottles of cocaine, containing a half ounce each, and one bottle containing one ounce, altogether worth $156 at *Page 533 wholesale. That the drug company recovered ninety-five bottles only of the stolen morphine and none of the cocaine.
Lane Wilson testified that a little after midnight on the night of February 5, 1916, Sammy Williams `phoned him and procured from him his automobile. That that night about 1:30 said Williams and appellant together came to his house in said car. That he went out to where they were and found them with over a hundred bottles of morphine — he counted over a hundred. He got in the car with them, and they went down to his room in his mother's house and carried the stuff into his room. He swore: "I bought fifty bottles from Hershall Holland and paid him $125 for it. I paid that money to Hershall Holland." He further swore that the three then went to Harry Kendall's residence. Harry Kendall and his wife swore that they came there that night together. Kendall swore that on that occasion Hershall Holland or Sammy Williams, "one or the other, while they were both present there, said, `We made the Crowdus Drug Company, that we climbed up the fire escape and jimmied the lock.'" That they left four bottles of the morphine there with him, intended as a gift to him. They tried to get him to go with them to Fort Worth to sell the "dope," but he advised against this. It seems that Lane Wilson was arrested for having said part of said morphine in his possession. While in jail he told Burford Jetty to get this "dope" and take it away from his house, which Jetty did. The officers caught on to this and recovered that much of the morphine from Jetty, which was identified as stolen from the drug company and returned to it.
From this uncontradicted testimony no one can doubt the guilt of appellant. It establishes his guilt beyond a doubt.
With this clear guilt of appellant established, the State sought to prevent the jury from suspending his sentence, and on the question of suspended sentence solely introduced the testimony above objected to.
The State sought to prove by said witness Harry Kendall that appellant's general reputation was bad as a peaceable, law-abiding citizen and honest man, but he said he could not say whether his reputation was good or bad, "but he had got a pretty rough name to be a kind of fighter, and that is all." That he could not say he is an honest man, but he was honest with his fellow citizens — with the boys that he dealt with. On recross-examination by the appellant, he swore: "He has got a bad reputation for fighting; he gets drunk and shoots and things like that." Mr. DeWitt, the detective, swore he knew appellant's general reputation for being a peaceable, honest, law-abiding citizen, and that it was bad. This, together with the objected to testimony, was all the testimony on this subject.
The admission over appellant's objection of what the witness swore Mr. DeWitt had told him was error, but as shown, the witness as a part of his answer expressly stated: "But I could not say that I know he was mugged." As stated, the jury assessed the lowest punishment, and we think that the admission of this testimony, under the circumstances of this case, does not present reversible error. Judge Hurt, in *Page 534 Post v. State, 10 Texas Crim. App., 579, said: "If this court must reverse for every irregularity, though objected to, whether it tended to injure defendant or not, it would be almost impossible in a great many cases to legally convict. The action of the court in this matter was wrong, but no injury appearing therefrom, we can not make it a ground for reversal." To the same effect is Bond v. State, 20 Texas Crim. App., 421; Sadler v. State, ib., 196; King v. State, 42 Tex.Crim. Rep.; Tinsley v. State, 52 Tex.Crim. Rep.. A great many other cases to the same effect could be collated but we think it unnecessary.
The motion is overruled.
Overruled.