Appellant is under conviction for selling intoxicating liquor, with punishment of two years in the penitentiary.
It is unnecessary to detail the evidence. If the testimony offered by the State is accepted as true, and it evidently was so considered by the jury, it is sufficient to support the verdict.
The sale of the liquor is alleged to have been made to E.C. Harrison. A few nights after the alleged sale Mrs. Harrison sustained injuries inflicted upon her by someone and during the investigation of such assault the officers were informed by Harrison of the sale to him of the liquor by appellant. This matter was not inquired into by the State on its examination in chief of Harrison, but was developed on cross-examination. In response to examination by appellant's counsel Harrison admitted there was some suspicion directed at him (Harrison) about the injury to his wife. He was asked then if *Page 30 it was not after this suspicion was directed towards himself that he told the officers the Smiths had sold him whisky and made him drunk, to which he replied that he told all he knew at that time but denied saying the Smiths had beat his wife up. Unless we misapprehend the record it was sought by this cross-examination to make the impression upon the jury that in order to divert attention from the suspicion towards him Harrison had claimed that the Smiths were guilty of the assault upon his wife and had also sold him the whisky in question. Upon re-direct examination counsel for the State was permitted over appellant's objection to ask Harrison if suspicion was not also directed toward Howard Smith, a brother of appellant, as being the party who had committed the assault. So far as we have been able to gather from the record Harrison never at any time charged any of the Smiths with having sold him whisky except appellant, and never charged that appellant or Howard Smith had anything to do with the assault upon Mrs. Harrison. Mrs. Harrison in her testimony expressly disclaims that she had any idea that appellant committed the assault upon her. In this state of the record we have been unable to determine that any injury resulted to appellant from this inquiry on the part of the State or that the court was in error in admitting it. If the purpose of the examination by appellant's counsel was to leave the impression that Harrison was undertaking to make some charge against appellant or his brother in order to divert suspicion from himself as being guilty of the injury to his wife then the State had a right to inquire into it upon re-direct examination. Further complaint is made that Harrison was asked by appellant's counsel if he had hit his wife in the head would he admit it, to which the witness replied that he would not mind telling it. The district attorney then asked the witness: "If you had done it (hit his wife) you would have done it while under the influence of Horace Smith's whisky, wouldn't you?"
The last question by the district attorney was not answered but exception was reserved to the question. The trial judge immediately instructed the jury that they must not pay any attention to the remarks of counsel on either side but it was their duty to consider the evidence as given by the witnesses and that they should not consider the remarks of the district attorney as affecting the guilt or innocence of appellant. In view of the prompt action taken by the court in the matter we do not regard it as of sufficient consequences to require a reversal of the case.
The judgment is affirmed.
Affirmed. *Page 31
ON REHEARING. November 21, 1923.