Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.
We find in the record three bills of exception. The first complains of the fact that the trial judge made the remark, when appellant's attorney asked that the jury be drawn, that same would only cause delay. We are not able to agree with appellant's counsel that the remark was harmful to that degree that it could affect the verdict; however, the bill of exception does not show that the jury, or any member thereof, heard the remark.
Bill No. 2 complains that the appellant was not allowed to ask a witness, put on the stand by him for the purpose of impeaching state witness Walker, regarding the matters deemed of impeachment, the reason assigned by the trial court in his qualification being that the state witness when asked as to the matter, admitted fully that he made the statement inquired about. We do not think there is any error in this matter. Where a witness was asked if he did not make a statement to a certain party and answered in the affirmative, we would not hold it erroneous for the court below to decline to take up more time and have another witness repeat before the jury the same statement already testified to by the state witness. Walker v. State, 17 Texas App., 31; Barnard v. State, 45 Tex. Crim. 71.
Bill No. 3 complains of argument of the county attorney to the effect that witness Walker not only had testified in court under the sanction of his oath that he got the whisky from the defendant but that he had come before the grand jury on the 31st day of December, 1929, and testified to the same facts. The bill reflects the fact that the court orally instructed the jury not to consider the remarks of the county attorney, and that no request was made for a written instruction on the subject. We are not able to believe any prejudicial error is shown. The facts sufficiently support the verdict and judgment.
The judgment will be affirmed. *Page 207 Affirmed.
Hawkins, J., absent.
ON MOTION FOR REHEARING.