Sanders v. State ( 1937 )

This motion for rehearing rests solely on the ground that reversible error is to be found in the action of the State's attorney in asking appellant, — as set out in our original opinion, — if he did not remember a shooting scrape he had with Elwin Corn. We can not agree with appellant that the mere asking of this question should cause a reversal of this case. The jury were promptly instructed not to consider said question for any purpose, and unless the question asked be of such serious import, and the probable result from such asking be of such harmful effect as that an instruction such as was given could not be effective, we would not reverse. We have examined the cases cited by appellant in support of his motion. In Bowman's case, 265 S.W. Rep., 1038, we find a somewhat similar situation to what might have here appeared had the witness answered the question affirmatively and made no other explanation. In that case the question objected to was put before the jury, and they were instructed as to how they might appropriate same. We held the evidence not admissible, — and of course the charge wrong. Johnson v. State,95 S.W.2d 968, exhibits a flagrant disregard for the ruling of the trial court who sustained the objections made by the defense, and reversal was predicated chiefly on what occurred following such ruling. Elizondo v. State, 94 S.W.2d 457, presents a case in which the harmful effect of the questions asked was obvious. In Coon v. State, 35 S.W.2d 419, we have a case in which the accused, on trial in a liquor case, was asked by the State on cross-examination if he did not have the reputation of being the best whisky maker in San Augustine County. Objection to this question was overruled, and no instruction was given the jury not to consider such question. The harmful character of the question was apparent. In the matter involved in the instant case the harmful character of the question is not apparent. Appellant had shot deceased with a pistol. The State's theory of the case evidently was that appellant placed a pistol in such position as to make it easily possible for deceased to have had same at the time of the shooting, and appellant took the witness stand and swore that deceased did have a pistol and was trying to use it, and that he shot in self-defense.

We are not combating the conclusion of the trial court, in effect, that the State should not have asked appellant, — after he had testified that this was the only pistol he had ever carried, — if he remembered a shooting scrape he had had at a former time, — but observe that objection was promptly sustained to this question, and the jury told not to consider said question for any purpose. However, and for aught we know from the record, a truthful and appropriate answer to the question asked might have revealed that the other party mentioned in the question had assaulted appellant, and that he was perfectly justifiable in everything that occurred. In other words, there is nothing in the mere question asked which would be capable of such harm to the accused as would justify a reversal of his case. Criminal cases ought not to be reversed upon grounds not shown to have been violative of some mandatory statute, or upon grounds not reasonably calculated to cause harm to the accused.

Not being able to agree with appellant, the motion for rehearing is overruled.

Overruled.