Appellant insists, in his motion for rehearing that this court erred in the disposition of the questions which related to the alleged misconduct of the jury and to the complaint that Art. 759 Cow. C. P. (formerly Art. 843) had been violated. We think the point made as to alleged misconduct of the jury correctly disposed of in the former opinion, and further discussion of it is not necessary.
Article 759 is as follows: "The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument." The only contention that former convictions of appellant were alluded to in argument is based on the language of the County Attorney referring to appellant as a witness wherein he said to the jury, "If you had testified before three juries as this defendant has you'd be a good witness too." The record shows from appellant's own evidence on this trial there had been two former trials and that appellant testified on each of them. We see nothing in this argument which can be legitimately construed as a reference to the result of those trials. The remaining question then for this court to determine seems to be whether the examination of witnesses was so conducted that it can legitimately be said former convictions of accused were used against him as a presumption of his guilt in the present trial. The state proved that one Sargent, an eye witness to the killing, was dead, and that the original stenographer's notes of his testimony given at a former trial had been destroyed by fire. The state was seeking *Page 509 to reproduce his testimony by using the narrative statement of his evidence made by the stenographer on that trial and in doing so referred to it as the official stenographer's report of the testimony which had been filed with the clerk and used in the Court of Criminal Appeals of Texas. This was objected to as in violation of said Art. 59. One Hughey had testified for the state. Appellant sought to break the force of his testimony by the witness Davis whose evidence tended to impeach that given by Hughey. On cross-examination of Davis the attorney for the state proved by him that he did not testify upon the trial of appellant in Gregg County, and asked him if immediately after that trial he did not file an affidavit asking for a new trial. This question was also objected to as being violative of said Article 759, and as being an effort to inform the jury that appellant had been convicted at the trial in Gregg County. Appellant used the witness Stewart. Upon cross-examination it was elicited from him that all the facts testified to by him at the present time were known to him at the time of the former trial but that he had given no information as to his knowledge, and was asked if immediately after the former trial was over he was not one of the men who subscribed to an affidavit setting out the facts now sworn to by him for the purpose of securing a new trial. This was objected to as violating said Art. 759.
It is urged by appellant that it was not necessary for counsel representing the state to have referred to the statement of facts mentioned in the first complaint as having been "used in the Court of Criminal Appeals," nor was it necessary to ask the witnesses heretofore mentioned if they had not filed affidavits "for the purpose of securing a new trial;" that the questions were purposely so framed in order to convey to the jury information that appellant had been convicted upon the former trial. We think the record does not warrant us in reaching the latter conclusion.
There may have been men upon the jury sufficiently informed with reference to procedure in this state to have drawn the conclusion that a new trial could not have been sought by anyone except appellant, or that it would only be after conviction that a "statement of facts" could be used in the Court of Criminal Appeals, but we do not think it necessarily follows that the questions objected to were purposely so framed that the jury might reach the conclusion complained of. In one instance the state was seeking to lay a predicate for the introduction of the testimony of a dead witness. In the other instances the state was engaged in legitimate cross-examination of witnesses to show *Page 510 their interest or bias in behalf of appellant. We think the inference can not be reasonably drawn that it was an effort on the part of the state to get before the jury the fact of conviction of the former trial in order to use it as a presumption against appellant upon the present trial, nor that it so resulted. In one instance it appears that counsel representing the state referred to a former conviction. It occurred in this manner. The witness Moore had testified for appellant that upon one occasion he had seen deceased with a pistol. Upon cross-examination he was asked the following question: "Did you make an affidavit immediately after the trial setting forth the fact that while you were in the court house (at a former trial) you heard argument to the effect that the deceased did not own a pistol and had never owned a pistol, but that you did not realize the importance of it, and that you did not tell Mr. Henderson the facts about it until after the conviction." It is urged by appellant that this was a direct reference to the former conviction in contravention of said Art. 759 Cow. C. P. The recital of facts in the bill indicates that the purpose of counsel was to show the interest of the witness Moore as affecting his testimony. The reference to the former conviction seems to have been in the affidavit made by the witness to the effect that he did not realize until after such conviction the importance of the facts claimed to be within his knowledge and the inquiry was about this affidavit. We think it may be justly regarded as an incidental reference to the former conviction and does not bear the legitimate construction of an effort on the part of counsel representing the state to use that fact as a presumption against appellant upon this trial, and within the principle announced in Tollett's case, 60 S.W. 964, and Ashlock's case, 16 Tex.Crim. App. 13.
Believing the case to have been properly disposed of in our original opinion appellant's motion for rehearing is overruled.
Overruled.
OPINION ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.