On Motion for Rehearing.
MORROW, P. J.The appellant contends that the receipt in evidence, out of its order, of testimony to the effect that on a previous occasion the witness Carroll had purchased whisky from the appellant, was reversible error, notwithstanding such testimony was made competent and relevant by the testimony of the appellant. The opposite view expressed in the original opinion is regarded as sound as applied to the facts in the present record. Carroll testified that he bought whisky from the appel-land upon a certain occasion. The appellant testified in his own behalf and admitted the transaction with Carroll, explaining it, however, with the statement that his connection therewith was that of an agent and not of a seller. No other defensive theory was presented by the appellant, save that of agen'cy, and to rebut such theory the testimony of the previous sale of which complaint is made was admissible. See Colter v. State, 95 Tex. Cr. R. 657, 255 S. W. 406, and also the eases mentioned in the original opinion. We are unable to perceive the possibility of injury that the appellant could have suffered by reason of the introduction of the testimony mentioned out of its .order. The order of receiving testimony is ordinarily within the discretion of the trial judge. See Underhill’s Crim. Evidence (3d Ed.) § 439; Branch’s Ann. Tex, P. C. § 98; Hartsfield v. State (Tex. Cr. App.) 29 S. W. 777; Moore v. State, 7 Tex. App. 14; Cox v. State, 8 Tex. App. 297 (34 Am. Rep. 746); Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Gregory v. State, 92 Tex. Cr. R. 574, 244 S.W. 615. Prom the case of Cox v. State, supra, the following quotation is taken: “If then, the evidence was competent and legitimate, should the bare fact that it was admitted incidentally, and out of time and place, destroy its legitimacy, and render also incompetent and inadmissible other legitimate evidence with which it happened to be blended? We cannot think so.”
In the same case the quotation from Carroll v. Commonwealth, 84 Pa. 107, is quoted with approval: “We must look at the real competency of the evidence, and not at the order of its reception; and when we find that it was all finally competent, we will not reverse because of the time or order of its introduction.”
The motion for rehearing is overruled.