On a former day of the term the judgment was reversed and the cause remanded. The State contends in a motion for rehearing that the court was in error in holding that the indictment was not valid. It was stated that the general allegation that appellant had become indebted to the bank in the sum of eight thousand dollars was not specific enough and entirely too general; that it was wanting in particularity, and failed to inform the defendant of the transaction for which he was to be tried. The writer, upon further investigation, still adheres to his original views. The majority, however, do not agree with him. Under the view of the majority the former opinion will be modified and the indictment held sufficient to charge appellant in a general way with becoming indebted to the bank in the specified sum. The indictment contained three counts. The first set out the facts attending the transactions by which it was sought to connect appellant with violating the banking law, he being president of the bank. That count, however, was not submitted to the jury by the court, and passed out of the case. The second count was submitted in which the general allegation was made that appellant became indebted to the bank of which he was president. Under these allegations the State would be required to prove that appellant had become directly indebted to the bank, and that proof of the matters and facts set up by the State in its evidence would not meet the count upon which the conviction was obtained, which evidence was to the effect that appellant and McSpadden and Morris entered into an agreement by which they were to buy cattle and the bank furnish the money, predicated upon a note given by McSpadden and Morris, and the money transferred on the books of the bank to their credit, and that appellant would be a partner in the profits and losses of the cattle transaction for which the note was given to secure funds in payment of the cattle. Appellant's name does not appear anywhere either in the note or on the bank books, and on the face of the transaction he is not directly shown to be connected with any of those matters. In other words, it was a secret partnership, if it existed. This was perhaps the most serious question in the case so far as the evidence was concerned. So following the views of the majority, the count will be held sufficient to charge an offense, but not to admit evidence of the transactions showing an indirect liability as sought by the State that this would be a variance between the allegation in the count submitted and the evidence, and, therefore, the evidence did not support the finding of the jury under the count and the charge submitting that count.
In regard to what was said in the original opinion with reference to a bill of exceptions which contains matters and things set out through the witness Mood, the State contends that the opinion was *Page 587 in error in holding that State's counsel was responsible for withdrawing all the testimony of Mood from the jury. The contention is that the State did not withdraw the statements of Mood on cross-examination by appellant's counsel to the effect that appellant had won the civil suit. Strictly and technically speaking this contention may be correct. The bill in regard to this matter shows that when Mood was placed upon the stand and the various questions asked and answers elicited, he was then passed to appellant's counsel for cross-examination, and, among other things, it was elicited from him that appellant had won the civil suit in which McSpadden sued Morris and himself for settlement of alleged partnership matters, which involved the eight thousand dollar matter. State's counsel objected to this cross-examination as to the matters elicited from Mood, but the court overruled the objection upon the ground that the State had drawn out the matter and this was a legitimate cross-examination. When this occurred the bill of exceptions recites that, "Thereupon the State rested, and stated they desired to consult a moment, and within a few minutes returned to the court and through their private prosecutor, Mr. Martin, stated to the court, `We are not going to introduce any of the record and we ask that the court strike out the testimony of Mr. Mood in regard to it.' (The record referred to being the transcript of what purported to be the statement of facts in the case of W.A. McSpadden v. R.A. Morris et al., in which the State's counsel had attempted to prove up by A.M. Mood for the purpose of offering the same and parts thereof to impeach the defendant as a witness.) The court then stated, `What part of the record do you have reference to?' Mr. Martin stated in reply to such question, `All of Mr. Mood's testimony identifying the record, since we are not offering any of the record, that evidence would serve no purpose. We do not intend to offer the record and we would like to have this testimony stricken from the record since it does not tend to prove any issue in this case.'" Thereupon defendant's counsel objected to the withdrawal of any of the testimony by the State for the reason they had offered the same and when it was proved harmful to them they desired to withdraw it, and that it was material and beneficial to the defendant, and that they had no power to withdraw it when they had offered it themselves and they considered it harmful, to then be permitted to withdraw it. The court not specifically ruling on the objection but turned to the jury and instructed them as follows: "I will strike out and instruct the jury not to consider the testimony of Mr. Mood." In the former opinion the writer was under the impression that, legally speaking, State's counsel were responsible for being really the moving parties in getting the matter before the jury as well as to its final withdrawal or exclusion after putting it in before the jury; that it was too late for the State to withdraw it after cross-examination of the witness in reference to the matter they had drawn out, and that their motion had it been sustained would practically have operated to withdraw all the testimony of the witness Mood, *Page 588 whether it was direct or cross-examination. If the writer was in error about this then counsel for the State may not have been altogether responsible for the withdrawal of Mood's testimony favorable to the defendant. But the matter was so intermingled — the direct and cross-examination taken with the remarks of the court it occurred to the writer that the effect of the State's motion was to withdraw all the testimony, especially in view of the fact that this motion was not made until after Mood developed the fact that appellant had won the civil suit. This testimony seems to have been introduced by the State for the purpose of laying some predicate with reference to the case and the testimony of defendant in the civil suit, but when Mood testified to the fact that appellant had been eliminated from that record by the verdict of the jury, counsel moved to exclude or withdraw the testimony from the jury. State's counsel insist strenuously that they did not undertake to withdraw the testimony introduced on cross-examination, and that they were only undertaking to withdraw that which they introduced. Without going into any detail about the matter, or any discussion, we place it as the record does, so that it will be fully understood and its effect and result from the whole bill of exceptions may not be unjust to either side. The result, however, would be the same. This testimony was withdrawn from the jury, and under the circumstances it should not have been withdrawn.
It is deemed unnecessary to discuss the other matters.
Finding no reason why the motion for rehearing should be granted, it is ordered that said motion be overruled.
Overruled.