We have examined this case to see if there be anything in it to differentiate it from that of Ex parte Gilmore, recently decided by us, and have concluded, insofar as the questions pertain to the constitutionality of the liquor laws, and procedure thereunder, in this State, that all the questions here raised were decided in that opinion.
The argument by the State's attorney, which is set out at length in our original opinion, is not so harmful per se as to require a reversal of this case, and this is especially so in view of the absence of a written request for instructions to the jury to disregard same. Bill of exceptions No. 12 does not show, as contended by appellant, an exception to any charge, which corresponds to the special charge in the record. The endorsement on said bill refers to same as "Defendant's requested charge, and exception to argument of district attorney," but the language and entire contents of said bill shows it clearly to be a bill of exceptions and not a requested charge.
Appellant's bill of exceptions No. 7 does not show that the statement made by him before the grand jury, which was shown to the witness Charles Shaw while on the witness stand, was then read to the jury. This court is bound by the record as same appears here. The objection shown in said bill to have been made was to the question and answer as quoted in our former opinion, and was not to the reading or introduction of any written statement made by said witness before the grand jury, and, of course, we only consider the objection as made and shown by the bill of exceptions.
No error is shown by bill of exceptions No. 10. Under the uniform holding of this court a witness convicted of a felony is competent to testify in another case at any time before sentence has been passed upon him and his case finally disposed of. That a new trial was granted the witness Stinson after he testified for the State against this appellant, would not be newly discovered evidence. Both the district judge and district attorney stated on the hearing of the motion for new trial, that there was no agreement with Stinson prior to the giving of his testimony, that a new trial should be granted in consideration of such act on his part.
No error appeared in allowing the sheriff of Pecos County to testify that he got a quart bottle containing whisky from the witness Hines. *Page 211 Charles Shaw had testified that he got eight gallons of the illicit whisky involved in this transaction, and that he gave a quart of same to Frank Hines. Hines swore that he got such quart of whisky from Charles Shaw, and that the bottle containing whisky, gotten by the sheriff of Pecos County from him, was the same gotton by him from Shaw. Both Shaw and Hines were accomplices. That the sheriff got from Hines a quart bottle containing whisky, was a competent corroborative circumstance of the testimony of said accomplices.
Being unable to agree with the contentions urged in this motion for rehearing, same will be overruled.
Overruled.