Appellant has filed a motion for rehearing in which it is urged that this court was right in its original opinion, and in error when rehearing was granted on State's motion and affirmance entered.
In her motion appellant reiterates the statement that therecord will show that she had never been legally charged with any offense before in the County Court, and that the prosecuting officer knew this when he asked the question complained of, and knew no proof could be made of any such charge ever having been filed, and, therefore, while the question may have been in proper form, the very asking of it under the circumstances was prejudicial, and intended to have that effect.
We cannot presume that the assistant district attorney was doing purposely an improper thing when the question was propounded, and we must look to the record to see if the fact is there disclosed that no such charge as the question implied was filed against appellant. If we should find there was none, and believed the prosecuting officer propounded the question to appellant knowing this, and with the purpose or improperly prejudicing her case, our duty would be clear.
We regret that we are unable to agree with counsel for appellant in his interpretation of the record. An examination of the bill of exceptions shows utter silence on the issue of whether in fact appellant had ever been charged in the County Count with "shoplifting." When we look to the statement of facts it rather strengthens the view that such a charge had been filed. When appellant was asked how many times she had been arrested, and charged in the County Court with theft — "shoplifting," the statement of facts discloses her testimony on that subject to have been as follows: "I was arrested one time with Bertha Smith and brought to the court up here for shoplifting, and they didn't do anything about it, it never came to trial. . . . I haven't been tried on that yet; they never did anything about it because I didn't have one thing to do with it. I don't know that the case is still on the docket. Mr. Moore made my bond in that case. I *Page 230 swear that is the only time I have ever been charged with theft in any court." This shows appellant had been placed under bond upon the very charge in regard to which inquiry was being made, and to which complaint is directed.
If there was a mistake about it, or the charge was of a different nature, or made only in an examining court and never merged into a prosecution, the facts could have been easily ascertained. The instant case was being tried in the same courthouse where the alleged theft charge was supposed to have been filed, and a delay of only a few minutes would have been sufficient to have ascertained the facts, and they could have been placed in the record now before us. No request for an opportunity to do this appears to have been made.
To hold with appellant in her contention would necessitate us presuming what the record does not show, and which presumption would be against the affirmative disclosures of the record.
The appellant's motion for rehearing is overruled.
Overruled.