
    SMITH v. STATE.
    (No. 7582.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1923.
    Rehearing Denied Nov. 21, 1923.)
    1. Witnesses &wkey;s288(2) — Redirect examination on matter opened by cross-examination held not error.
    In a prosecution for selling liquor, where defendant’s counsel, in cross examining the purchaser, brought out the fact that his wife had been assaulted and that, while officers were investigating it, the purchaser had stated that defendant sold him whisky which had made him drunk, apparently to create the impression that the purchaser had tried to divert suspicion regarding his 'vyife’s injuries from himself to defendant, held, that it was not error to permit the state on redirect examination to ask if suspicion regarding the wife’s injury had not also been directed towards a brother of defendant.
    2. Criminal law <&wkey;730(3), 1170(4(3) — Redirect examination of witness held not reversible error, in absence of any answer to question asked and in view of instructions.
    In a prosecution for the sale of liquor, where defendant on examination of a state’s witness, the alleged purchaser, asked him about striking his wife, held, that the asking by .the state on redirect examination, “If you had done it, you would have done it under the influence of defendant’s whisky?” was not reversible error, in the absence of any answer and in view of instructions to disregard remarks of counsel and consider only evidence given by the witness.
    On Motion for Behearing,
    3.Criminal law &wkey;>l091 (3) — Bills of exception to warrant reversal must show surrounding facts and circumstances.
    Bills of exception which present objections to questions asked witness; but show nothing of the surroundings or conditions, antecedent or subsequent, to be used as a basis for determining their relevancy do not present enough to warrant a reversal.
    (§E5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Williamson County; James B. Hamilton, Judge.
    Horace Smith was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    J. F. Taulbee, of Georgetown, for appellant.
    B. G.' Storey, Asst. Atty. Gen., for the State. ;
   HAWKINS, J.

Appellant is under conviction for selling intoxicating liquor with punishment of two years in the penitentiary.

It is unnecessary to detail the evidence. If the testimony offered by the state is accepted as true, and it evidently was so considered by the jury, it is sufficient to support the verdict.

The sale of the liquor is alleged to have been made to H. C. Harrison. A few nights after the alleged sale, Mrs. Harrison sustained injuries inflicted upon her by some one, and during the investigation of such assault the officers were informed, by Harrison of the sale to him of the liquor by appellant. This matter was not inquired into by the state on its examination in chief of Harrison, but was developed on cross-examination. In response to examination by appellant’s counsel, Harrison admitted there was some suspicion directed at him (Harrison) about the injury to his wife. He was asked then if it was not after this suspicion was directed towards himself that he told the officers the Smiths had sold him whisky and made him drunk, to which he replied that he told all he knew at that time, but denied saying the Smiths had beat his wife up. Unless we misapprehend the record, it was sought by this cross-examination to make the impression upon the jury that, in order to divert attention from the .suspicion towards him, Harrison had claimed that the Smiths were guilty of the assault upon his wife and had also sold him the whisky in question. Upon redirect examination counsel for the state was permitted), over appellant’s objection, to ask Harrison if suspicion was not also directed toward Howard Smith, a brother of appellant, as being the party who had committed the assault. So far as we have been able to gather from the record, Harrison never at any time charged any of the Smiths with having sold him whisky except appellant, and never charged that appellant or Howard Smith had anything to do with the assault upon Mrs. Harrison. Mrs. Harrison in ter testimony expressly disclaims tliat she had any idea that appellant committed the assault upon her. In.this state of the record, we have been unable to determine, that any injury resulted to appellant from this inquiry on the part of the state, or that the court was in error in admitting it. If the purpose of the examination by appellant’s counsel was to leave the impression that Hárrison was undertaking to make some charge against appellant or his brother in order to divert suspicion from himself as being guilty of the injury toi his wife, then the state had a right to inquire into it upon redirect examination.

Further complaist is made that Harrison was asked by appellant’s counsel if he had hit his wife in the head would he admit it, to which the witness replied that he would not mind telling it. The district attorney then asked the witness:

“If you had' done it (hit his wife), you would have done it while under the influence of Horace Smith’s whisky, wouldn’t you?”

The last question by the district attorney was not answered, but exception was reserved to the question. The trial judge immediately instructed the jury that they must not pay any attention to the remarks of counsel on either side, but it was their duty to consider the evidence as given by the witnesses, and that they should not consider the remarks of the district attorney as affecting the guilt or innocence of appellant. In view of the prompt action taken by the court in the matter, we do not regard it as of sufficient consequence to require a reversal of the case.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We have carefully examined each of the bills of exceptions upon which, in his motion for rehearing, appellant predicates an allegation of error in our former opinion. Bill of exceptions No. 2 sets out a number of answers of a witness who was being examined, and it’is difficult to ascertain at which one of the answers or questions the exception is aimed. It is clear from the hill that appellant was seeking to show by the state witness that he had struck his wife upon the head. The witness denied doing it, and at the same time held up his hand. Questioned by appellant’s counsel as to why he held up -his hand, he said it was to answer before God. He was then asked by appellant’s counsel if he had struck his wife would he admit it, and the reply was that' he would not mind telling it. Upon redirect examination, the state’s counsel asked witness:

“If you had done it, you would have done it when under the influence of defendant’s whis-ky, wouldn’t you?” "■

The question was not answered. The witness, having testified that he had bought liquor from appellant, might have explained any blow that he had struck his wife, if he had done so, by saying that he was under the influence of the liquor at the time. We do not apprehend such evil consequences from this character of examination as appellant’s counsel does.

Bill of exceptions No. 3 presents objections to a question asked a witness for appellant on , cross-examination. The bill contains absolutely nothing showing the surroundings, setting, or conditions, antecedent or subsequent, to the question from which this court could determine its relevance or injury.

Bill of exceptions No. 4 avers that the district attorney, in the cross-examination of a-witness of appellant, said:

“You did not see anything there, but you can’t say there was not anything there; I understand you came here to swear there wasn’t any there?”

Nothing appears in the bill showing the surroundings, antecedents, purpose, or relevancy of this question, and nothing is stated except that the court instructed the jury to pay no attention to the remark of the district attorney. Whether the remark was based on former testimony of the witness, or whether it was intended to express the conclusion arrived at by the district attorney from what the witness had already said does not appear. We could not reverse cases for bills of exception presenting errors where nothing more is set out than appears in thes(6 bills.

The motion for rehearing will be overruled.  