ON state’s motion for rehearing.
GRAVES, Judge.The State has filed a motion for rehearing herein which has given this court much concern, with the strength of which we are much impressed.
We still adhere to our ruling in the original opinion that the answer of the witness Mrs. L. M. Terry evidences error in that it is shown therein that she had no knowledge of what constituted a felony in law, and could not therefore know whether she had been thus charged. But it is insisted that her testimony relative to an alibi for appellant was in itself vague, indefinite and inconclusive; that the same testimony in effect was given by about seven other witnesses, and that other and different impeaching testimony was properly before the jury relative to this same witness.
It is observed that from the testimony appellant attempted to prove an alibi by eight witnesses, most of whom, save one, testified that they saw the appellant at sometime near 8 to 8:30 o’clock P. M., on the night of the alleged robbery at his mother’s home; that they saw him again at such home about 11 or 11:30 o’clock of the same night, thus leaving the strong inference that he had remained continuously at such home, and could not have been concerned in this robbery which occurred some miles away from this home. One person, James *459George, testified that he was with appellant and they remained at this home all the time between 8 and 11 o’clock. One of the witnesses to the robbery, Mr. Evans, testified, among other things, that he drove up to the store of Mr. Bratcher while the robbery was in progress, and got out of his car; that a man holding something in his hand that he took to be a shot gun ordered him into the store; that this man was Buck Terry who, the testimony shows, was a brother of appellant.
The State again offered impeaching testimony relative to the witness Mrs. L. M. Terry in that it was shown that on this trial she testified that it was about 8:15 when she left appellant in her home, and 11:30 when she returned and found him still there; and also that her son Buck Terry was not at her home when she left on the night of the alleged robbery. The State then offered the transcript of her testimony taken before the grand jury in which it was shown that she said at that time that it was about 6 o’clock when she left her home, and that her son Buck was at home when she left.
In the first place, we do not think the witness Mrs. Terry gave any conclusive testimony relative to an alibi; she merely says she saw appellant at her home about an hour prior to the alleged robbery, and again saw him there about two hours after such robbery, and we are not impressed with the strength of her testimony, especially in view of the testimony of all three persons who were the victims of this robbery when they say that appellant was one of the robbers. He could easily have traversed the ten miles from his home to the scene of the alleged crime in much less time than the interim of the two hours when he was not in his mother’s presence.
It is said in 45 Tex. Jur., p. 119:
“That the defendant was not permitted to question a State’s witness as to a charge against the witness in the justice court, or as to a past or pending indictment or conviction, does not necessarily require that the judgment of conviction should be reversed; for the importance of the witness’ testimony as appearing in the record, must be taken into account. For the same reason, it may be unnecessary to reverse a conviction where the trial court has erroneously allowed the state to show that a witness for the defendant had been convicted of some offense not involving moral turpitude * * * In short, as to whether the case should be reversed depends on whether the ruling was harmless or prejudicial.”
*460See McIntosh v. State, 239 S. W. 622; Lard v. State, 113 S. W. 762; Miller v. State, 150 S. W. 635; Pettis v. State, 47 Tex. Cr. R. 76, 81 S. W. 312; Henderson v. State, 49 Tex. Cr. R. 269, 91 S. W. 569; Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 347; Keeton v. State, 128 S. W. 405; Green v. State, 292 S. W. 244; Copeland v. State; 271 S. W. 91; Johnson v. State, 201 S. W. 177; Fowler v. State, 232 S. W. 515.
We think the testimony of Mrs. Terry was inconclusive and not greatly material in establishing appellant’s alibi; and again we think that the further fact that alibi testimony was given by a number of other witnesses of the same character as Mrs. Terry’s would not evidence a serious error were the appellant prejudiced in her evidence before the jury because of the attempt. to prove the indictment of this witness; and again the further fact that the State presented other and different impeaching testimony relative to this witness, all taken together, convinces us that we were in error in our original opinion wherein we held that bill of exceptions No. 1 presented reversible error, and so believing it becomes our duty to grant the State’s motion for a rehearing, and also to notice other claimed errors as shown by the record.
Bill of exceptions No. 2 is rather lengthy, and we are impressed with the correctness of the trial court’s ruling that the remark desired to be introduced was clearly hearsay, not a part of the res gestae, and inadmissible.
Bill of exceptions No. 3 is based upon an objection to certain testimony purporting to have been given by Mrs. L. M. Terry before the grand jury of Tarrant County relative to the time she left her home on the evening of the alleged robbery, and as to who was at her home when she left. We think such testimony admissible after she had testified upon her direct examination that she had seen her son, appellant, at her home on such evening at about 8:30 o’clock. It is true that she had refused to either deny or affirm that she had stated to the grand jury that she had left her home on such occasion at 6 o’clock, but did state that she did not remember making such statement, and that she then said as her testimony on this trial that she left, her home about 8:30 o’clock on the night of the alleged offense. We think that this statement upon her part was sufficient to allow the State to treat the same as a predicate for her impeachment on this important point in appellant’s attempt to prove an alibi. Before appellant would be entitled to *461successfully object to the introduction of this material testimony before the grand jury, there should be an unqualified admission upon the witness’ part that such a statement had been made before the grand jury. See 45 Tex. Jur., p. 35.
To the same effect as bill No. 3 is bill of exceptions No. 4, and our ruling thereon is the same.
We are also impressed with the fact that the court’s charge properly set forth the law applicable to the facts as they appeared herein, and overrule bill of exceptions No. 5 relative to such charge.
In our original opinion we have written on bill of exception No. 6 charging misconduct of the jury, and we adhere to such ruling thereon.
Believing that the matter complained of in our original opinion as error was a harmless one and could not have affected the result of this trial, as attempted to be shown in the beginning of this opinion, the State’s motion for a rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.