Appellant seems to be under the impression that we disposed of his bill of exception No. 3 upon the qualification appended thereto by the court when the qualification was excepted to. The qualification was not considered. From the bill itself it is apparent that appellant was cross-examining the witness Yearey regarding the character of the mash found back of appellant's house, and after testifying that he knew it was fermented corn chops the witness stated he could not say it was for the purpose of making whiskey, but did know "it would make a hog drunk." It is to the quoted statement objection was urged. We are not in accord with appellant's contention that this was a voluntary and improper statement from the witness, not in response to the cross-examination. The statement of facts reveals that in connection with the statement complained *Page 22 of the witness testified that a hog was there and that witness saw it eat some of the mash and that it became drunk as a result.
Appellant insists we were in error in the disposition made of bill of exception No. 4, wherein he complained that he was unduly curtailed in his cross-examination of the witness Yearey. The bill is qualified by the court, but the qualification was excepted to, hence cannot be considered. It was an admitted fact that officers had sent one Cawthorne to appellant's house for the purpose of detecting him in the violation of the liquor laws. It was appellant's contention that the whiskey he was charged with having transported had been brought to the place by Cawthorne himself. Yearey was the constable. The bill shows that he went with other officers to appellant's place, but did not know until after he reached there that Cawthorne had been sent on in advance by other officers. The bill shows that on the cross-examination of Yearey he was questioned as to whether Cawthorne had carried the whiskey to appellant's place, to which witness replied that he could not answer the question explaining that he knew nothing in advance about Cawthorne having been sent there. He was then asked by appellant if some of the officers there that night did not tell him they furnished the whiskey for Cawthorne to bring there, to which the witness replied that he could not answer the question because he did not know. The bill then recites that the trial court declined to permit further cross-examination of the witness, and states that if appellant had been permitted to further cross-examine the witness he would have testified that one of the officers furnished the whiskey which Cawthorne brought there. In determining whether the court committed error in refusing to permit further cross-examination the matter must be viewed as the situation appeared to the court at the time he was called upon to rule. We take from the statement of facts on cross-examination of this witness the following excerpts:
"I can't answer your question as to whether or not Nath Cawthorne had been sent down there with some whiskey, because I don't know. I don't know where that whiskey come from that night. No one ever told me that they furnished the whiskey for Nath Cawthorne to carry down there that night."
"I have told you three times I could not answer your question as to whether or not Nath Cawthorne was furnished that whiskey or that he carried it down there with him, because I don't know. I do not know anything about that whiskey being carried down there. No one told me that Nath carried it down there *Page 23 with him. That has been over two years ago, and if there was ever any such remark made, why it has slipped my memory."
"I have told you, five times now, that I could not answer your question as to who furnished Nath Cawthorne that whiskey, if he was furnished any to carry down there, because I don't know."
It is impossible to appraise a bill of exception complaining of the exclusion or admission of evidence or the claimed curtailment in the examination of a witness without reference to the facts before the court when he is called upon to make a ruling. Here the appellant was in effect saying to the court: "If you will let me cross-examine this witness further an answer is expected from him in direct contradiction to what the witness had already answered the other way five times." This the court knew. It does not appear from the record that appellant had any ground upon which to base an expectation of any answer from the witness different from that already given.
Appellant asks a reconsideration of the matters complained of in bills Nos. 5, 6, 8, 9, 10, 13, 15 and 16, urging that the matters therein complained of are presented in a different light upon this appeal than upon the former. It may be appellant has more evidence in this record to combat the effect of the evidence complained of in the various bills, but we conceive the legal questions to be the same and to have been properly disposed of on the former appeal.
There are some matters adverted to in appellant's motion which are not properly in the record, and for that reason cannot be considered.
The motion for rehearing is overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.