Appellant again complains in his motion for a rehearing herein of this Court's failure to write, in the original opinion herein, on his bills of exceptions Nos. 5 and 6.
Bill No. 5 complains of the court allowing the officer, who arrested the appellant some days after the alleged robbery, to testify that under the hood of the car, in which appellant was riding, he found a pistol. This car was admitted by appellant to be his, and the pistol was a dark pistol similar to the one said by the prosecuting witness to have been used in the robbery. In his qualification of this bill the trial judge says that the description given by the witness fitted the description of the gun found under the hood of appellant's car. We think the objection would probably go to the weight of the testimony rather than to its admissibility.
Bill No. 6 complains of an answer of the witness Decker wherein he was asked what else he brought back from Wills Point where appellant was arrested. In his answer the witness stated: "Dick Wortham [appellant], this automobile and this pistol, and some items picked up on other hijackings," and upon objection the court instructed the jury not to consider the answer for any purpose, and also instructed witness to make his answers responsive to the questions. The State's attorney then directed his attention only to the question as to whether he got any leather gloves out of such car. The witness then said: "I took out of the car a pair of gloves that was taken from this Hale boy in hijacking." The court on his own initiative instructed the jury to pay no attention to and to disregard such answer as to the portion "that was taken from the Hale boy in hijacking."
This testimony was admissible as to the leather gloves, we think, because the prosecuting witness testified that a leather glove was placed over his eyes, and a handkerchief then tied around his head at the time of the robbery, and the finding of such at the time of appellant's arrest would be a circumstance with some bearing on the fact of appellant's guilt. *Page 630
The volunteered portion of other hijackings was not with the court's nor State's attorney's consent, and we do not think such was serious enough to cause a reversal hereof, especially in view of the court's control thereof with his immediate instruction to the jury to disregard the same.
To our minds the original opinion is correct, and the motion is overruled.
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