On February 23, 1910, a former day of this term of court, this case was reversed and remanded because the court below erred in allowing the State to prove the general reputation of the house as to being a place where intoxicating liquors were sold, and that the reputation of the house was that it was a place where parties were selling beer. The State, through her Assistant Attorney-General, has filed a motion for rehearing and insists that the court was in error in reversing this case because of the admission of this testimony over appellant's objection, and while the State concedes that the admission of the testimony was erroneous, it contends that in the light of the record the admission of this testimony was entirely harmless, in view of the fact that the appellant himself took the witness stand and testified that it was a place where such liquors were sold; that he knew the place before he began to operate it and that during the month of April the party who had to do with the retail malt beer had rented a part of the place, and that party, to wit: Lytle Crawford, had license to sell beer there and that he had bought beer from the said Lytle Crawford and that Lytle Crawford was paying the rent for that part *Page 186 of the building; that he, appellant, was in the restaurant business and that the said Crawford was in the other part of the building and selling beer. The substance of appellant's testimony was that the place was in fact a place where such liquors were being sold, but that the same were being sold at the time alleged by another party. We are inclined to hold that the State's motion should be granted and that the position taken by the State in this case is correct, and that while the testimony was not strictly legal, the same could not by any possibility have injured appellant's rights. In the case of Weatherford v. State, 51 Tex.Crim. Rep., we held that though the testimony of reputation of the place was not admissible, still the appellant having gone upon the stand and testified to the sales himself, and this being so, would of itself render harmless the testimony. We, therefore, grant the State's motion for rehearing and order that the judgment reversing and remanding the case be set aside and that the judgment of the lower court be now affirmed.
Affirmed.
[Rehearing denied May 4, 1910. — Reporter.]