
    WATERS v. STATE.
    (No. 6548.)
    (Court of Criminal Appeals of Texas.
    Feb. 1, 1922.
    Rehearing Granted May 3, 1922.)
    1. Jury <§=>82(2) — Misspelling name of accused held not to invalidate venire.
    A motion tc quash the venire, on the ground that it was not issued in the name of the accused, was properly refused, where the indorsement of the venire properly spelled defendant’s name as “Waters,” and on the inside the name was spelled “Watters.”
    2. Criminal law <®=>614(2) — Second continuance not granted for cumulative testimony.
    A second continuance should not be granted for cumulative testimony. •
    3. Criminal law <§=l 169(9) — Adimission of testimony unconscious person could not see, hear, nor speak is harmless.
    Where the mother of the boy whom defendant was charged with killing had testified that when her boy was brought home he was unconscious, it was not prejudicial to accused to permit her further to state that he could neither see, speak, nor recognize persons.
    4. Homicide <§=>175 — Testimony as to-care given by mother of deceased is admissible on issue of death resulting from want of care.
    In a prosecution for homicide, where defendant claimed the death resulted from want of proper care of deceased after he was struck by defendant, testimony by the mother of deceased that, after he was brought home, she did what she could for him- and whatever the doctors told her to do for him, was admissible.
    5. Homicide <§= 174(1) — Evidence aeoused did nothing to aid after striking deceased held admissible.
    In a prosecution for homicide by striking deceased on the head with a baseball bat, testimony that accused did nothing to aid deceased after he was struck was admissible as affecting the animus of accused toward deceased, and further as reflecting on the right of accused to raise the defense that deceased wás neglected after the injury-and suffered therefrom.
    6. Criminal Law <§=>476, 479 — Physician can testify as expert as to cause of death.
    In a prosecution for -homicide by striking deceased on the head with a baseball bat, a practicing physician, who was present at the operation on deceased and saw the bone removed from his head, was an expert witness, find he could properly testify that in his opinion death resulted from shock caused by a blow on the head.
    ?. Witnesses <§=>274(2) — Witnesses to good character can be cross-examined as to charge of crime in another county.
    Witnesses who testified as to the good character of accused could be cross-examined by the state relative to a charge of crime against accused in another county.
    8. Criminal law <©=■[ 170¾⅛(6) — Withdrawal of cross-examination as to other crime, not established, held to have cured prejudice.
    Where the state cross-examined witnesses testifying to good character of accused as to a crime charged against accused in another county, and stated it would produce witnesses to establish the crime inquired about, but such witnesses were not present at the time the other testimony was concluded, and the court refused to grant a postponement until they-could be procured, an instruction by the court not to consider any questions asked relative to the crime in the other county negatived any possibility of injury to accused from the questions.
    9. Criminal law <§= 1169(1) — Question whether accused was not an ordinary negro held not erroneous.
    In a prosecution for homicide, where defendant applied for suspended sentence, a question, asked by the state of a witness, whether accused was not just an ordinary negro, could not possibly have injured accused.
    10. Criminal law <§=829(I)— Special charges need! not be given where issues are already covered.
    Special charges, requested by accused, which are repetitions of other special charges given by the court and of matters covered by the main charge, may be refused without error.
    11. Homicide <§=341 — Refusal of charges as-to adequate cause not prejudicial, where conviction was for manslaughter.
    Accused was not prejudiced by the refusal of charges requested by him as to what would be adequate cause to reduce the homicide to-manslaughter, where he was convicted of manslaughter.
    12. Criminal law <§=1091 (10) — Bill of exceptions enumerating 12 grounds of complaint violates the rules.
    A bill of exceptions enumerating 12 different grounds of complaint by accused does not come within the rules.
    13. Criminal .law <§=657 — Court can threaten to- fine witness for accused who persisted in repeating hearsay after exclusion.
    Where a witness for accused persisted in repeating hearsay testimony, a remark by the court that he had warned him twice before not to state such testimony, and that he would fine him if he did it again, was not erroneous.
    
      14. Criminal law <®=»706, 723(1) — Prosecuting attorney should not resort to sidebar remarks or ask improper questions to prejudice jury against accused.
    It is not proper for the state’s attorneys to make sidebar remarks and ask improper questions calculated to prejudice the jury against accused and to belittle the objections and complaints made on behalf of accused.
    On Motion for Rehearing.
    15. Criminal law <⅞=1171 (I) — Persistent questioning by prosecuting attorney as to incompetent incident, with statement it would be proved, held reversible error.
    Where accused had applied for a suspended 'sentence, persistent questioning by the prosecuting attorney whether he had not, while on horseback, run over a girl, with a statement that the prosecution would prove that fact, was prejudicial error, notwithstanding the defendant’s denial of the incident, and the failure of the state to offer proof to support its assertion, which proof would have been inadmissible if offered.
    16. Criminal law ⅞=>982 — ■ State cannot offer specific misconduct on issue of suspended sentence.
    Where accused applies for suspended sentence, thereby putting in issue his general good reputation, thfe state cannot prove specific acts of misconduct as original evidence on that issue of general reputation.
    17. Criminal law <3=3655(1), 1166½( 12) — Remarks to jury panel on suspended sentence taw held erroneous and prejudicial.
    Remarks, made by the trial judge to the panel of jurors at the beginning of the court week, to the effect that the suspended sentence law would be repealed if juries made it a vehicle to turn real criminals loose, that it was intended to apply to young men and first offenders and those who accidentally got into trouble, but Was not limited to young men, were erroneous statements of the application of the law, and a comment on facts, contrary to Yernon’s Ann. Code Cr. Proc. 1916, arts. 735, 736, which were prejudicial to accused, who applied for suspended sentence and was tried by a jury selected from the panel to whom the remarks were addressed.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Johnnie Waters was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Butler, Price & Maynor, of Tyler, for appellant.
    C. G. Calhoun, Dist. Atty., and B. P. Gentry, Co. Atty., both of Tyler, and R. G. Sto-rey, Asst Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Smith county of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of five years.

The homicide occurred at a baseball game at which a dispute arose between appellant and deceased, the immediate cause being a dispute over a pocketknife. After a hot debate over the ownership of the knife, deceased started to walk away with it, and appellant grabbed a baseball bat and struck deceased upon the head with it; the blow causing deceased to stagger and fall, and later "become unconscious. He was still later removed from his home, some miles across the country, in an automobile to a sanitarium, and an operation performed upon his head, which disclosed that the skull had been crushed by said blow, and the physicians testified that his death was thereby produced. There were various theories of the defense ; one of them being self-defense, and another that the death of deceased resulted from neglect and other causes intervening between the blow and death.

Appellant’s first bill of exceptions was to the refusal of the trial court to quash the venire, the ground of the motion being that appellant’s name was “Waters” and the ve-nire was issued in the name of “Walters.” The court directed that the original writ be sent up with the transcript, and- it was done. An examination of same shows that it is indorsed, “The State of Texas v. Johnie Waters,” and that on. the inside appellant’s name was spelled “Watters.” We think the motion correctly overruled.

The second bill of exceptions was to certain remarks of the court, called by appellant “verbal charges to the jury.” Nothing in said remarks relative to the suspended sentence law appears to militate against the rights of appellant. The court in effect told the jury that the suspended sentence law was made for the benefit of young men and first offenders, but that it should be given to any man who was entitled to it. Appellant’s proof in the ease seemed to show without any contradiction that he had never been convicted of a felony, and that his life had been as free from blame as that of any ordinary citizen. The 'remarks are set out at length. It is shown that the remarks were made on Monday morning when the jury for the week and the venire in this case were all present in the court room. The remarks of the trial court were entirely appropriate. If juries were cautioned before impaneled, as was done in this case, against deciding cases by lot and thoughtless and careless separation while impaneled, and discussing the failure of the defendant to testify, it might obviate reversals of cases for such reasons. There is nothing in appellant’s complaint.

A bill of exceptions was taken to the court’s refusal of a continuance. The same facts stated as expectant from the absent witnesses were given in evidence by other witnessses. It was shown that the continw-anee sought was a second, one. Same should not have been granted for cumulative testimony.

Several bills relate to the objection of the testimony of the mother of deceased. She said that when brought home he was unconscious. Over objection it appears that she further stated that he could neither see, speak, nor recognize persons. This would appear to us to be reasonably true of every person who was unconscious. No harm was done by permitting the witness to make this statement. The other complaints of the testimony of this witness are that she said that she did what she could for her boy; that she did whatever the doctors told her to do for him; that she did not leave undone anything she was told to do for him. As above stated, an issue in the case was whether the death of the deceased was the result of negligence or of some other cause save that of the blow inflicted upon him by appellant. It was proper to permit the mother, who was with him and waited upon him from the time of injury until death, to testify to the matters mentioned above. Appellant was accorded full opportunity to cross-examine her as to all of the details as to her care and attention to deceased, and what was done and not done for him during the time after his injury.

By bill ©f exceptions complaint is made that a witness was allowed to state that appellant did nothing to aid the deceased after he was injured, and that appellant himself was asked if he did anything to aid deceased after he was injured. This testimony would be admissible as affecting the animus and state of mind of appellant toward deceased, and as further reflecting the fact that appellant was not in position to complain if deceased was neglected and suffered therefrom, after the injury.

Complaint is made that Dr. Bussey' was not allowed to answer a question of appellant the effect of which was to show that the tendency of an automobile ride a long distance across the country would be to injure deceased. The court qualifies the bill by referring to the statement of facts, from which it appears that Dr. Bussey testified fully in regard to the subject-matter of this inquiry.

Dr. Northcutt, a practicing physician, was present at the operation upon the head of deceased and administered the ether to him; he saw the bone removed from the head of deceased, and gave it as his opinion that death resulted from a shock caused by a blow on the head. The witness was an expert, and the testimony was entirely proper. The issue of whether death resulted from the blow or other causes was in the case.

Various bills complain of the action of the state in asking some of appellant’s witnesses relative to his being charged with a crime ⅛ Navarro county. The state has the right, upon, cross-examination of witnesses as to the good character of the accused, to refer to instances of misconduct on his part as tending to rebut his possession of such character. This was done in the instant case, and inquiry of such witnesses, of appellant’s connection with a crime in Navarro county, was made. It was objected to, and the state informed the court that it expected to have witnesses from Navarro county to support before the jury the matter inquired about. As the case drew to a close and said witnesses had not appeared, the state asked the court below to postpone the case until the next day in order to give them opportunity to get said witnesses. This the trial court refused to do, and then instructed the jury not to consider as against appellant any questions asked by the state relative to any crime committed by appellant in Navarro county. We think this entirely negatived the possibility of any injury.

Complaint is made that a witness was asked by the state, referring to appellant, if he was not just an ordinary negro. The possible injury of a question such as this would seem so slight as not to merit being the subject of a bill of exceptions. The surroundings and the settings of the question do not appear. We- cannot know why the state desired to ask such a question, but arc wholly unable to see any possible injury.

A number of witnesses testified for appellant that his reputation for being a peaceable law-abiding citizen was good, and that they had never .known of his being accused of crime. Appellant had filed an application for a suspended sentence. The state asked appellant upon cross-examination" if it was not true that on one occasion, while riding horseback, he ran over a girl near Starville. The bill of exceptions is wholly defective in that it fails to set forth the connection or surroundings which would show the question to be immaterial. The appellant answered the question in the negative, and the objection of appellant seems to be to the question as asked. There might be many circumstances arising in, which the evidence could be material. In order for us to conclude that injury results and error was committed, it is necessary that sufficient facts be stated in the bill from which we may know that error was committed and injury done.

Appellant has six bills of exception embodying the exceptions taken- by him to the charge of the trial court. Wé have carefully examined each of said bills, which are too long to be set out in extenso, and which do not embody any matter affecting any settled rule of practice; and we conclude that none of said bills presents any error.

A number of special charges were asked by appellant, each of which has received our careful attention. Many of them are repetitions of each other and of other special charges given by the court and of matters contained' in and covered by the main charge of the court. The charge of the court as given and as amplified by eleven special charges given at the request of appellant seems to us to fully present every theory of the case supported by any evidence, in a clear and fair way, and we are unable to perceive any error committed by the trial court in the refusal of any of said charges. Many of said charges relate to things claimed by appellant to be adequate cause to reduce a killing to manslaughter, and the manner and form in which charges relative to manslaughter should be worded, and to issues relevant only in determining whether a given homicide be manslaughter; all of which questions pass out, in view of the fact that the jury concluded that manslaughter was the offense of which appellant was guilty and he was so adjudged. Many of said special charges are on the weight of the evidence, enumerating various and sundry facts, in which the court is asked to instruct the jury what would constitute sufficient ground for a killing in self-defense. '

There are 44 bills of exception contained in this record, and 35 special charges asked on behalf of appellant. It is manifest that this court cannot so extend its opinion as to discuss each of said bills of exception and special charges. If this* court was of opinion that the trial was in any material respect unfair, or that any injury had resulted to appellant from any action of the lower court or jury, or that any of said special charges or bills of exception contained matters, the discussion of which would shed light upon any rule of procedure, or question of law, this court would discuss the same and set it forth in its opinion; but, where the contrary appears to us, we can see no benefit to the appellant or to the profession in an extended discussion of the errors complained of either in the refusal of special charges or in the overruling or sustaining of objections to evidence.

In his forty-second bill of exceptions appellant enumerates 12 different grounds of complaint. A bill of exceptions of this character does not come within the rules, and the trial court approves same with the statement that the greater part of the matters above presented are presented elsewhere in separate bills, and that he does not certify that the questions or remarks were for the purposes stated.

Appellant has a bill of exceptions to what he calls the miscoryluct of tjie court in reprimanding a witness who persisted in repeating certain hearsay testimony after being told by the court not to state it again. It was shown that the court stopped the witness and said that he had warned him twice before and was going to fine him if he did-it again. We do not think it error for the court to warn a witness against a violation of his orders, nor to state to the witness if he continues that he would be compelled to fine him.

Appellant’s Forty-fourth bill of exceptions is a repetition of the 10 grounds of his exception to the court’s charge, which matters have been made the subject of separate bill's of exception theretofore appearing in the record.

In the lengthy and able brief of counsel for the appellant,' much complaint is made of unfair practices on the part of the staters attorney in the asking of questions and the making of sidebar remarks, claimed by appellant to be calculated to prejudice the jury against him and to belittle the objections and complaints made on behalf of appellant. All of such matters that are legit’imately complained of by bills of exception have received our attention, and, in so far as we deemed same necessary, have been discussed in the opinion. We do not conclude that any of said matters, or all of them in the instant case, amount to enough to justify a reversal; but we wish again to urge upon state’s attorneys that there is no need for the attorneys for the people to resort to such methods, to any extent. The trial of causes involving life and liberty to the citizen, whatever be his standing or estate, whether he be of high or low degree, the procedure and result involve the most serious matters. Such trials are not to be made mere opportunities for verbal swordplay between competing counsel, nor should the fair judgment of the jury be affected or influenced by aught save the consideration of the testimony and its effect, under the law as presented. Arguments and matters of procedure, having any other effect than to aid in the attainment of justice, should be omitted.'

Finding no reversible error in this record, the judgment of the lower court will be affirmed. *

On Motion for Rehearing.

HAWKINS, J.

Appellant had filed an application for suspended sentence, and introduced proof as to his general reputation as a peaceable, law-abiding citizen. While testifying as a witness in his own behalf, the following questions on cross-examination were propounded to him by the district attorney:

“Q. You run over a girl down here near Star-ville? A. No, sir.
“Q. On a horse? A. No, sir.”

Appellant objected on the ground that there was no violation of the law claimed, and that it was an effort on the part of the district attorney to inflame the minds of the jury against appellant, and that the state had no evidence to Support such questions or to follow them up. The court overruled the objection, and the district attorney then followed his examination with this question:

“Q. Didn’t you willfully run over a girl down near Starville one night? A. No, sir.
“Q. Her name was Pinkston? A. No, sir.”

The defendant continued to object to such questions on the grounds as theretofore stated by him, and asked the court to withdraw the testimony from the jury, in reply to which the district attorney told the court to “go ahead and withdraw it.” The court, in response to that remark from the district attorney, said, “Well, don’t ask those questions unless you have a basis for them,” to which the district attorney replied, “Wfe have got a basis for them.” Exception was then taken by appellant to the last remark of the district attorney on the ground that there was no witness present who would testify, that defendant ran over a girl, and that the state was undertaking through the district attorney to prejudice the rights of defendant, and that he had no witnesses by which he could have followed up such inquiry. The court instructed the jury not to consider the questions propounded by the district attorney, but complaint is made of his conduct as being a studied effort calculated and intended to., prejudice the jury against appellant’s interest. Ordinarily, where a question is propounded and' answered in the negative, we are not inclined to hold the mere asking of the question as error; but, under the facts of this case as we. gather them from the record, we believe the conduct of the district attorney in the respect com plained about should not be approved. He not only asked improper questions, but asserted the existence of facts hurtful to appellant. If he had a witness present by whom he could have proved that appellant ran over the girl, such evidence could have been tendered by the state only upon the issue of suspended sentence, and under recent holdings of this court it would have been inadmissible for that purpose, as being an isolated act of misconduct to which the state could not resort as original evidence to prove general reputation. See Johnson v. State (No. 6422) 241 S. W. 484, this day decided; Wagley v. State, 87 Tex. Cr. R. 504, 224 S. W. 687; Moore v. State (Tex. Cr. App.) 237 S. W. 932; Fountain v. State (opinion December 21, 1921) 241 S. W. 489; Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360; Baker v. State, 87 Tex. Cr. R. 305, 221 S. W. 607. A misapprehension seems to have arisen with reference to the extent to which the state might go in proving specific acts of misconduct where the issue of suspended sentence arose, and we have attempted'to clear up this confusion by our opinions in the cases referred to. The general rule, as stated in the Johnson Case, supra, may be stated as follow^

“When accused undertakes to support, or the state to attack his ‘general reputation,’ it must be done in the same manner, be governed by the same rules, and subject to the same exceptions, where the suspended sentence is involved, as in other cases”

—and specifically holding that the state cannot introduce evidence of specific acts of misconduct as original evidence on the issue of accused’s general reputation. The questions propounded by counsel for the state in the instant case were improper, and, even had they elicited affirmative responses, the evidence would have been inadmissible. We are unable to say to what extent such conduct may have influenced the jury in assessing the maximum penalty for the offense of manslaughter, and denying the suspended sentence.

In the light of the motion for rehearing, we have re-examined appellant’s bill of exception No. 2 in which he complains of certain conduct of thaj court. It appears from the bill that the special venire from which a jury was to be selected to try appellant was present on Monday morning in the courtroom; that it was the custom of the judge on Monday morning before entering upon the trial of any case to give certain instructions to the jury relative to their duty as jurors. He advised them: First, that they must be careful and not separate, but must remain together after they were taken on the jury; second, that the law prohibited the arriving at verdicts by lot; third, that hung juries were undesirable and mistrials expensive, but that he would not desire any juror to waive his conscientious belief about any ‘case, but that the law required that they discuss the matters with each other and arrive at a verdict if possible; fourth, he instructed them generally that they should not comment on the failure of any defendant to testify and that attorneys were not permitted to allude to the same- in argument; he then proceeded, fifth, as follows:

“Next, I‘want to call your attention to the suspended sentence law. There has been quite a good deal of agitation for the repeal of this law, and perhaps it has been abused in a great many instances. In my judgment, this is a good law where properly applied. It was never intended to be used or made a vehicle to turn real criminals loose, who deliberately violated the law, and just as sure as the juries use this law recklessly, they will necessitate its repeal. I will illustrate it this way: It was intended to apply to young men and first offenders and to young men who accidentally got into trouble, who, it appears, are not hardened criminals. However, the law does not say that this shall apply only to young men. There are cases where it would apply to old men. In all cases the jury are the sole judges as to whether the sentence be suspended.”

To that portion of the general observations to the jury which are statutory in their na- ■ ture, such as directing them not to comment on the failure of any defendant to testify, and admonishing them that they should not separate, we find no serious objections, because such matters might with propriety be embraced in the written charge if the trial judge thought it necessary toi so instruct them. Under our system of procedure, however, we seriously question the propriety of the judge at any time embarking upon a general discussion of any law which would be improper for him to embrace in a charge relative to the particular case on trial. It may be that the judge was of opinion that the suspended sentence law had been abused in many cases, but we, believe he certainly stepped beyond the realms of propriety when he told the jury that, “just as sure as' the juries use this law recklessly, they will necessitate its repeal.” He could not in any more definite way have given the jurors and veniremen present to understand that in his judgment extreme care should be exercised in extending the benefit of the law to any accused upon trial. Neither was it the province of the court to tell the jury that “the law was meant to apply to young men and first offenders and those who accidentally got into trouble.” It is true he does tell them that the law does not say in terms that it shall apply only to young men, but he in effect told them in unmistakable language that in his judgment it was the purpose of the law not to extend its 'clemency to any except young men and those who might accidentally get into trouble. By the very terms of the suspended sentence law itself, in its exclusion and inclusion of the character of cases to which it does apply, it is shown that such construction of the law is too restrictive. It can hardly be understood how one who calmly plans the burglary of a house or the theft of property, and who deliberately sets about the accomplishment of such offenses, can be said to have accidentally committed the same; yet the law applies to them. Appellant filed an application for suspended sentence. Proof was made that he had never been convicted of a felony, which entitled him to have that issue submitted to the jury. He introduced proof that his general reputation as a 'peaceable, law-abiding citizen was good. The court submitted the issue of suspended sentence. If, in connection with his written charge on that subject, he had included the instruction given verbally at the beginning of the week, and in the presence of the very venire from which the jurors were drawn to try appellant, it could not be questioned that this court would decline to permit the conviction to stand. We are unwilling to give our sanction to a conviction where ⅛ verbal instruction such as complained of may have worked injuriously to the interest of one on trial. In the case of Chapman v. State, 42 Tex. Cr. R. 135, 57 S. W. 965, it appears the trial judge believed that juries were making mistakes and turning defendants free under the law of apparent danger and reasonable doubt when they should not do so, and commented upon this matter ¿it length on Monday morning of each week. In passing upon that question this court, through Judge Davidson, used the following language:

“After the argument in a criminal case has been concluded the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case; but he shall not express any opinion as to the weight of the evidence, nor shall he sum up the testimony. * ⅜ * ‘It is beyond the province of a judge' sitting in a criminal case to discuss the facts or use an argument in his charge, calculated to rouse the sympathy or excite the passions of a jury. It is his duty to state plainly the law of the case.’ ⅜ * * They were intended to be strictly observed, and not covertly violated. A casual inspection of the excerpt- quoted shows a palpable violation of almost every provision of said article. If this charge had been given’to the jury as the law' of the ease, the conviction, of course, could not stand. It is a severe criticism, animadversion, and denunciation of the law of self-defense and reasonable doubt. These'wise provisions of the law and of our criminal jurisprudence are severely arraigned as being subversive of justice and right. Whether or not the trial court believed in the wisdom of these safeguards of human life and liberty, it was incumbent on him, as it was his duty, to observe them. These principles of our law are binding upon trial courts; must be respected, adhered to, and enforced.”

Doubtless the motives impelling the learned. judge who tried the instant case were of the very best, and perhaps it would not have been improper at another place and time to call attention of citizens to what he deemed were improper results being arrived at by juries relative to the law in question; but, after a careful re-examination of the entire verbal instruction complained of, and especially that portion relative to the suspended sentence law, we cannot escape the conclusion that it may have deterred the jury in extending the benefit thereof to appellant in opposition to the views, expressed by the presiding judge. Article 735, Vemon’s O. O. P., provides in substance that the judge shall give a written charge in which he shall distinctly set forth the -law applicable to the case. Article 736 reads:

“It is beyond the province of a judge sitting in criminal causes to discuss the facts or use gny argument in his charge calculated to arouse the sympathy or excite the passion of a jury. It is his duty to state plainly the law of the case.” •

It was doubtless the purpose of the trial judge to caution the jury against what he conceived to be miscarriages of justice, but we are not permitted to lose sight of the fact that such laudible purpose may have worked to the detriment of one tried by a jury who heard the judge’s criticism relative to the suspended sentence law, and its operation and abuse. For observations of this court heretofore relative to similar matters, we refer to McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 562; Dean v. State, 58 Cr. R. 98, 124 S. W. 924; Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1160; Murphy v. State (Tex. Cr. App.) 57 S. W. 967.

Having concluded, upon a re-examination of the matters referred to, and a further investigation of the authorities, that we were in error in our original opinion in the particulars herein discussed, the motion for rehearing is granted, the judgment of affirmance set aside, and the judgment of the trial court reversed and the cause remanded. 
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