
    McGUFFEY v. STATE.
    (No. 10303.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Denied June 22, 1927.
    1. Criminal law <§=>656(3)— Court’s saying question asked and not answered is not material is not comment on weight of testimony.
    In prosecution for murder, for court to say question asked and not answered is not material is not erroneous as comment on weight of testimony.
    2. Criminal law <§=>656(0 — Court’s saying matter inquired about was in record was not “comment on weight of testimony.”
    In prosecution for murder, for court to say that matter inquired about was in record was not erroneous as comment on weight of testimony.
    3. Criminal law <§=>655(5) — Court’s directing counsel to sit down while examining witness held not abuse of discretion.
    Directing counsel to sit down while examining witness is practically of necessity confided to court’s discretion, and such direction, in absence of anything else, shows no injury.
    4. Witnesses <§=>344(4)— Sustaining objection to question whether witness had been running gambling house at time of, and prior to, shooting in question held proper.
    In prosecution for murder, sustaining objection to question to witness whether another state witness had been running gambling house at time of, and prior to, shooting held proper.
    5. Witnesses <§=>379(4) — Asking witness on cross-examination if certain writing shown was not signed by him,, and if he did not therein make statement contrary to testimony at trial, answered in affirmative, held not error.
    In prosecution for murder, permitting state’s attorney on cross-examination to ask witness if writing shown to him was not signed by him, and if it did not contain certain statement varying from his testimony at trial, which was answered in affirmative, was not error.
    6. Criminal law <§=>706 — Asking witness if she did not tell attorney to put certain matter in written statement held not erroneous.
    In prosecution for murder, fact that state attorney on cross-examination asked witness if she did not tell him to put certain matter in written statement was not erroneous as being hearsay or attempt of attorney to testify.
    On Motion for Rehearing.
    7. Witnesses <§=>345(4) — Permitting witness over (8 years of age to be asked whether he had been indicted for hi-jacking held not error, though witness was under 18 at time of conviction, which was reversed (Code Cr. Proc. 1925, art. 1092).
    In prosecution for murder, where defendant’s witness had been convicted of hi-jacking while under 18 years, and case was reversed, with statement that felony charge should have been dismissed when he was found to be juvenile, permitting state to ask him for purpose of impeachment whether he had been indicted for hi-jacking was not error under Code Cr. Proc. 1925, art. 1092, relating to offenses of juveniles, in view of fact that at present trial he was over 18 years of age.
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    Gilbert McGuffey was convicted of murder, and he appeals.
    Affirmed.
    
      Kirby, King & Overshiner, of Abilene, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., botb of Austin, for tbe State.
   LATTIMORE, J.

Conviction of murder; punishment, 35 years in the penitentiary.

Appellant shot and killfed Ben Savage. His theory on the trial was that he shot at one- Lewis because he thought Lewis “was fixing to shoot” him. The state’s theory was that appellant shot Lewis, and then turned and shot Savage. The testimony is ample to support the state’s theory.

Bilis of exception Nos. 1, 2, 6, 7, and 15 complain of what are deemed to be comments by the learned trial judge on the weight of the testimony. Each bill has been examined, and none of the statements attributed to the court below appear to us to be comments on the weight of the testimony before the jury. To illustrate: It is not such comment for the court to say that a question asked and not answered is not material; nor for the court to say of a matter inquired about that same was in the record. We find nothing in any of said bills of exception.

Complaint is made of the court directing appellant’s counsel to take his seat while examining a state witness. It is not shown in the bill whether in fact counsel did so sit down, but we infer that he did. Such matters are practically of necessity confided to the discretion of the trial court. No injury is shown.

There is nothing in bill of exceptions No. 4 of any statement of facts which would afford us light on the materiality or relevancy of the things asked and rejected. Same further shows objection to a question not answered and not in itself harmful. Further, we might observe that the objection made to the court does not seem to have been acted upon.

Bill No. 5 shows that a defense witness was asked on cross-examination by the state if he was not under indictment for hi-jacking a white man, to which he answered “Yes.” Much argument seems to have been indulged in before the court below regarding a former trial of the witness upon said indictment and as to the effect of the opinion handed down by this court. The discussion wound up by the trial court overruling the objection. We see no error in the matter. Even thqugh we suggested in our opinion handed down in the trial of said case that under the facts before the trial court, and at the time the case was originally tried, it would have been proper to direct a dismissal of the case, and that the accused be tried in a juvenile court, still, when the case was called for trial later, if it was discovered that he was over the statutory age of juvenility, he could not then be tried and sent to the reformatory, but would be tried as in any other felony case.

Bill of exceptions No. 8 shows that a state witness was asked if another state witness by the name of Lewis had been running a gambling house at the time of, and prior to, this shooting. The state’s objection to this was sustained. Mr. Branch, in section 168 of his Annotated P. 0., cites many authorities supporting the proposition that evidence of particular acts of misconduct is not admissible. See McAfee v. State, 17 Tex. App. 135; Conway v. State, 33 Tex. Cr. R. 329, 26 S. W. 401.

No error appears in the action of the state’s attorney, during his cross-examination of a defense witness, in asking him if a certain writing, shown witness, was not signed by him, and if he did no.t therein make a certain statement at variance with his testimony given on this trial. The witness answered in the affirmative. Substantially the same complaints appear in bills Nos. 10,-11, 12, and 13. We are not in accord with the contention in either of said bills.

Bill No. 14 shows that during the cross-examination of a defense witness she was asked by the district attorney if she did not tell him to put a certain matter in a written statement. This was objected to as being hearsay and tantamount to the attorney testifying, and as causing the jury to believe that witness was lying. Certainly it was an effort of the state to show that she was not telling the truth. We do not perceive any ground for holding that the attorney was testifying, and, as far as the hearsay objection is concerned, we observe that practically all predicates laid to impeach witnesses will necessarily be hearsay as to the defendant in the particular case.

Bill of exceptions No. 15 shows that to a question asked by the state’s attorney, an argumentative answer was returned, and, upon the question being repeated, the witness made an evasive answer. At this point defense counsel objected on the ground that state’s counsel was arguing with the witness. The trial court suggested, “She was arguing. She was asking him a question.” We think the trial court stated the facts. The witness, not the examiner, was arguing.

Bill of exceptions No. 16 sets out that a defense witness was asked if she did not tell the state’s attorney, the day after the killing, and if it was not put into her written statement, “I called to him but he would not stop,” to which the witness replied, “I might have told you that.” The bill sets out numerous objections, but no facts showing the immateriality or otherwise, or the possible harm of the question, or its answer.

We have examined bills of exception Nos. 17, 18, 19, 20, and 21 and find nothing in them a discussion of which could possibly be of any benefit. We are of opinion that none of them present error.

Being unable to agree with any of the con- • tentions made by appellant, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant complains because we did not discuss at more length his various bills of exception and set forth in detail our reasons for the disposition made of them. This court finds it impracticable many times to consider seriatim complaints brought forward in the record on account of the resulting opinion being of undue length. The present case is an illustration; the record containing twenty-one bills of exception. We have again examined the bills containing complaints that the trial court commented on the weight of the evidence. Most, if not all, of the authorities cited by appellant upon original submission are cases where the court’s statement was with reference to testimony admitted, and which was before the jury for its consideration, and where the court’s comment gave the jury his view of such evidence. Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W. 141, and McPherson v. State, 79 Tex. Cr. R. 93, 182 S. W. 1114, to which we are referred in the motion for rehearing also reflect the same condition. Un'less we misapprehend the bills upon this point in the present record, they do.not reveal a similar state of facts, and to our minds show no error which calls for a reversal.

Appellant further complains that we committed error in the disposition made of his bill of exception No. 5. Upon cross-examination the district attorney, over objection, asked appellant’s witness Brown if he was not then under indictment for “hi-j aching,” to which the witness replied in the affirmative; the specific objection being that the case to which the district attorney referred occurred while Brown was a juvenile, and that under the provisions of article 1092, O. O. P., inquiry was not permitted. The statute in question reads as follows:

“A disposition of any delinquent child under this law or any evidence given in such case, shall not, in any civil, criminal, or other cause or proceeding whatever, in any court, be lawful or proper evidence against any child for any purpose whatever, except in subsequent cases against the same child under this law. Neither the conviction of the accused ás a delinquent child nor the service of sentence thereunder shall deprive him or her of any rights of citizenship when such child shall become of full age.”

The record reveals that in the case against Brown the court had found him at the time of trial to be a juvenile. Instead of dismissing the indictment charging him with a felony and proceeding against him under the juvenile statute, he was tried and convicted for robbery upon the indictment at a time when he was still a juvenile. Upon appeal the judgment of conviction was reversed. Because this court said the felony charge should have been dismissed at the time Brown was found to have been a juvenile, appellant takes the position that the state was inhibited by the statute quoted from showing for the purpose of impeachment that the indictment was still pending against him. At the time of-the present trial Brown was 18 years of age. He had passed the years of juvenility, and therefore could not then have been proceeded against as a delinquent. There had been no disposition of him as a delinquent as contemplated under article 1092, O. O. P. Under the circumstances, we think no error was committed by the court in permitting the inquiry complained of.

We have carefully examined all other bills of exception which appellant reasserts reveal error calling for a reversal. This opinion on rehearing would extend beyond reasonable bounds should we discuss each of them, but we think the matters complained of in the various bills were properly disposed of in our former opinion.

The motion for rehearing is overruled. 
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