In a forcible motion for rehearing the correctness of our judgment of affirmance is challenged. Two grounds are presented. The action of an attorney for the prosecution in offering the written testimony of John Graham as taken upon a former trial; and also the action of such attorney in referring to same in his closing argument for the State, is most earnestly urged as being injurious to the rights of appellant. We have again examined the record and have considered carefully the propositions advanced in the light of appellant's argument and authorities cited. The statement of facts is referred to in the qualification affixed by the trial judge to bill of exceptions No. 2 which presents the major part of appellant's contention. From the statement of facts we learn that Graham was one of appellant's party on the night of the homicide; that he had driven appellant, his brother and the wives of said *Page 13 two men to the scene of the killing in a car, and that said parties with Graham had gotten back in the car and were in the act of leaving said place when the fatal shot was fired. Bill of exceptions No. 2 shows that after the State had closed its rebuttal testimony, one of the attorneys for the State, in the presence and hearing of the jury, exhibited what he claimed to be testimony of John Graham stenographically taken on a trial of the case in Shelby County, and offered it to counsel for the defense with proffer of an agreement that they might read same in evidence. The specific objections made to this action as reflected by the bill were, that it was improper, that it came after the evidence had closed, defendant not having an opportunity to rebut the statement of State's counsel, that said evidence had not been used during the trial, that when said Graham had given said testimony he had been severely criticised and reprimanded by the trial judge, which statements were intermingled with the testimony, and that appellant could not afford to accept the State's challenge for said reason; that such method was not the way to have said testimony go before the jury, the State not having offered Graham as a witness, nor said anything as to the nature and character of the testimony so tendered by the State to defendant. We have set out minutely the objections made by appellant because in our opinion the argument offered in support of the motion for rehearing does not pertain to or support any of said objections. The trial court qualified this bill by saying that appellant had brought out upon cross-examination of the State's witnesses what Graham knew about the case, and the further fact that the State had formerly used Graham as a witness in the case. The position of appellant in his motion and argument is that the State thus placed before the jury the testimony of Graham, and that the necessary effect of the offer made was to convey to the jury the belief that the testimony of Graham was in consonance with the State's contention and theory and was against that of appellant. There is nothing in the bill or the record to make it appear that the offer was not made in good faith. It is stated in the bill of exceptions that Graham was present at court but not used as a witness. We do not presume anything against the correctness or fairness of the acts of the court below or its officers, and those who object to such acts must not only affirm but show that such acts are not legal and are such as to apparently work injury to the accused. Pretermitting the question as to whether appellant sufficiently showed the fact that Graham was present at court, he might have been ill or in such condition otherwise as to render it impracticable to place him upon the witness stand, and the offer of the use of his testimony might have been made in the utmost good faith. Such presumption is rebutted in no way by appellant. We are impressed by the logical and extended presentation of appellant's views in this regard, but *Page 14 find ourselves unable to agree with his assumption that the jury must have concluded that Graham's testimony would be so favorable to the State as to necessarily cause injury; nor are we able to apply any of the authorities cited to the support of the position taken. It is not claimed that the attorney offering to appellant's counsel this statement in any way referred to its contents, or that he asserted that same would support any contention of the State or overthrow any contention of the accused. Authorities whose effect is to condemn the practice of stating in the presence of the jury what witnesses who are absent would testify if present, or which hold it error for the State to refer to the probable testimony of absent witnesses, do not seem to us in point here.
Referring to bill of exceptions No. 3, we are further of the opinion that the argument of counsel for the State seems to have been made in reply to argument of appellant's counsel, and to present no reversible error.
Referring to the contention that the evidence of an experiment in order to ascertain if fire from a discharged pistol would burn clothing or a handkerchief fastened around the cylinder, we observe that this matter is fully discussed in the original opinion, but we further mention the fact as bearing upon the proposition that the experiment was of sufficient similarity to the issue made by the testimony upon the trial, that it appears from the testimony that the shooting was done with a 40-40 Colts revolver and that the pistol used in conducting the experiment was a 45 Colts revolver. We think our decision in this matter as set forth in the original opinion correct.
Being unable to agree with the contentions made by appellant in his motion for rehearing, same will be overruled.
Overruled.