Appellant insists that we erred in practically each point decided in the original opinion. The testimony in the case was short. Four bills of exception were reserved. We have again reviewed each. We can not comprehend how the reference to the liquor sold by appellant, as whiskey, by the District Attorney, could have inflicted injury. No testimony is offered supporting any inference that the jury were prejudiced or misled or influenced thereby. The second bill of exceptions which complains of repeated leading and suggestive questions, fails to set out any questions or any fact supporting the contention. The third bill sets out that while Smith Houston was being examined, he was asked whether or not the liquid was intoxicating. Counsel for appellant objected because this was but repetition. The court sustained the objection, saying "He has already testified he drank it and that it was intoxicating." The statute, Art. 707, C. C. P., says the court shall not comment upon the weight of the testimony, or its bearing on the case, nor make any remark calculated to convey to the jury his opinion of the case. It is held that for the court, in ruling upon an objection made, to say that the question has been answered is not erroneous. Bonners v. State,35 S.W. 669; Smith v. State, 81 Tex.Crim. Rep.. This bill does not show that the question had not already been asked and answered in the affirmative. That it had been asked is *Page 342 evident from the very objection made, which was that it was a repetition. If the question had been asked and had been answered in the affirmative, then certainly the statement of that fact by the court was not a comment on the weight of the testimony, nor an indication of the court's opinion regarding the matter.
We are of opinion that the case was correctly decided, and the motion for rehearing will be overruled.
Overruled.