In a motion for rehearing appellant insists that the court has certified error in approving his bill of exception number ten. An examination of this bill reflects the ever recurring mystery that a trial judge will certify that a prejudicial error has been committed which could not be cured by his instructions and, yet, overrules the motion for a new trial and sends the record to this court for review.
According to the bill one of the witnesses who made a search of the premises testified that they found five half pints of gin in a water meter at the corner of the house. Appellant objected to that testimony on the ground that the water meter was the property of the City of Olney and was not included in the search warrant and was immaterial, irrelevant and prejudicial. The court sustained this objection and instructed the jury not to consider such evidence. Now it appears to us in the state of the record that the court did commit an error in that he sustained the objection and instructed the jury not to consider the testimony which was perfectly proper to go before the jury. This gin was in a water meter at the corner of the house operated by appellant. Whether or not it was the property of the city does not appear and neither would that be a material fact. The court submitted to the jury a charge on circumstantial evidence and this was proper in view of the finding of that much gin in the water meter as described. Without the evidence of this gin we find nothing in the record to warrant the submission of a charge on circumstantial evidence. A sufficient amount of liquor to raise the legal presumption that it was for sale was found within the rooms directly under appellant's control and not occupied by other parties. This would not have required a charge on circumstantial evidence. Finding the gin on the premises did call for such a charge.
We are confronted, then, with the unusual situation of a court certifying error when there is no error of which the appellant might complain. If this evidence had, in fact, been immaterial, irrelevant and prejudicial to the rights of the defendant *Page 34 and of such a nature that the oral instruction of the court to the jury to not consider the same could not remove the harm done and enable the party on trial to obtain a fair and impartial trial as certified to by the court, then it would be our duty clearly to reverse the case. See Texas Digest — Criminal Law, 1111 (4) Vol. 13, p. 750. If the record were in such shape that we could not from the record itself say that the court had made a mistake in his certificate, it might still be our duty. However, in a case like this where it is perfectly clear that the evidence was material and proper for the consideration of the jury, we do not believe that the trial court's view of the law and his certificate to that effect should force this court to reverse the case.
In Pounds v. State, 81 S.W.2d 698, Judge Lattimore, on motion for rehearing, was dealing with a similar situation and held that where the trial court's certification to the bill of exception to the effect that there was nothing in the record to warrant remarks of State's counsel and that such remarks were prejudicial and inflammatory were conclusions of the trial judge not warranted by the record and, therefore, not binding on this court. We believe the correct view of the situation here is that the trial court wrongfully sustained the defendant's objection; that his certificate is his legal conclusion on a matter clearly before this court for consideration in a record that is full and complete. To reverse the case under this circumstance would be either to agree with him in an erroneous conclusion or to delegate to the trial court the power to reach a legal conclusion and work the reversal of a case in this court. Manifestly, this was not the intention of the authors of the Constitution in creating the court nor of the Legislature in the enactment of the legislation on which this prosecution is based. We, therefore, decline to accept as correct the certificate to appellant's bill of exception number ten, or to be bound thereby.
The motion for rehearing is overruled. *Page 35