Hardaway v. State , 113 Tex. Crim. 436 ( 1929 )

We think none of the cases cited by appellant goes so far as to support his proposition that under no circumstances could the deputy sheriff's testimony — if inadmissible — be held harmless. In the McWilliams case, 44 Tex. 117, which seems to be relied on as the leading authority, the witness whose testimony was affected by the illegal evidence had been indicted for the same offense and the prosecution against him had been dismissed; this at least left the witness in a very unenviable attitude before the jury. An examination of the other cases to which we are referred reveals that the evidence there improperly admitted was pertinent to some controverted issue. In the present case the evidence of a sale of intoxicating liquor by appellant was not questioned in any way and no facts appear which cast reflection of any kind upon the witness testifying to said sale. Under the circumstances we feel constrained to adhere to the conclusion announced in our original opinion.

The authority of the judge to preside in the trial of the case seems not open to serious question.

The motion for rehearing is overruled.

Overruled.