Conviction is for the sale of intoxicating liquor with punishment of one year in the penitentiary.
The sale of the liquor in question is alleged to have been made to one Hanson on the 9th of May, 1923. His evidence is that he went to the home of appellant and there purchased from him four gallons of whisky in payment for which he executed a check for $60 payable to appellant; that he (Hanson) requested the check be not presented for payment until later. Appellant denied having made the sale. On June 23d appellant and H.O. Long, his brother, were arrested upon another whisky transaction and the $60 check in question was found in H.O. Long's possession. He and appellant explained said check by testifying that some time in April Hanson had sought to borrow from appellant the sum of $60 at a time when H.O. Long was present; that appellant not having the money H.O. Long furnished it to him and that the $60 check was made in repayment of this loan and was indorsed by appellant to H.O. Long to reimburse him for the money furnished appellant for Hanson. After H.O. Long had testified to the foregoing facts he was asked by the State upon cross-examination what explanation, if any, he made to the sheriff as to the check in question when it was found by the officer. Objection was interposed on the ground that appellant was not present at the time, and if H.O. Long did or did not make an explanation relative to said check it would not be binding on appellant in his absence; the objection being overruled the witness answered that he told the sheriff to keep the check as it had not been paid. The bill of exception presenting the foregoing matter is the only bill we find in the record. We think it unnecessary to discuss at length the matter complained of because the answer of the witness H.O. Long could in no way have been harmful to appellant; what he told the officer was in no way inconsistent with his testimony upon the trial.
There were no exceptions to the court's charge and no special charges requested. The only bill in the record revealing no harmful error, an affirmance of the judgment is ordered.
Affirmed.
ON REHEARING. June 4, 1924.