Appellant renews his complaint, set out in bill of exceptions 11, of the fact that the state in its rebuttal was permitted to prove that on the trial of E. E. Barnes, this appellant was offered as a witness by the state and refused to testify. The bill is odd. It sets out what appellant did when the above testimony was given, as follows: "The defendant then moved the court to strike from the record the testimony elicited by questions and answers in reference to the failure of the defendant herein, who had not and who did not in this trial take the stand as a witness, and then and there moved the court to dismiss the jury and declare a mistrial and grant to the defendant a new trial herein at this time for the reason that the testimony of the witness brought before the jury the fact that in the E. E. Barnes case the defendant herein refused to testify."
Whether it was material on the trial of this appellant to prove that he refused to testify in the Barnes case, — is a matter wholly ignored in the bill. To whom, — if anyone, — the district attorney had suggested that it would be easier on defendant if he would testify against Barnes, is also left wholly in the dark. Judge Hawkins, in his opinion, supra, has advanced a seemingly sound reason for the admission of the testimony of Judge Hamlin, complained of in said bill of exceptions. His conclusion is now attacked by appellant on the proposition that the state and not the defense had elicited from Henry Bradford, defense witness, that the district attorney had agreed to recommend a suspended sentence for this appellant. The quotation first made in the opinion of Judge Hawkins from Mr. Bradford's testimony shows that the defense brought out from this witness on direct examination that the district attorney had promised to recommend a suspended sentence for this appellant. This made it imperative for the state to go further, if it could, on cross-examination of this witness, and show why the representative of the state was not doing, upon the instant trial, what it had promised this appellant it would do in the hearing of witness Bradford. The state could not make such showing without the testimony of Judge Hamlin here objected to. The condition of bill of exceptions 11 is such that the discussion might have been obviated. The bill plainly is not sufficient to show that the testimony objected to was either objectionable for any reason or hurtful.
In his motion for rehearing appellant brings forward certain objections to the charge of the court not discussed in our former *Page 48 opinion. This court is plainly forbidden by the provisions of article 666, C. C. P., to reverse any criminal case for errors in the charge, unless it is of the opinion that such errors were of sufficient gravity to make it reasonably appear that there was likelihood of injury to the rights of the defendant from same, or to make it appear that defendant had not had a fair and impartial trial. The objections referred to relate to the charge on suspended sentence, and a misstatement of the penalty in charging on suspended sentence. Objections to the charge as erroneous and calling for a reversal must be considered in the light of the facts of the particular case. The evidence in the case before us showed overwhelmingly, and practically without contradiction, the guilt of this accused. We do not believe any of the matters suggested as erroneous in the charge were of such character as that same could be looked upon as hurtful or injurious to the rights of the accused. We think the argument complained of not such as to cause reversal.
The motion for rehearing will be overruled.
Overruled.