Cooper v. State , 138 Tex. Crim. 438 ( 1939 )

In his motion for rehearing appellant insists that his bill of exception No. 5 should be considered notwithstanding it is in question and answer form. If the bill should be considered it is observed that it is concerned with the impeachment of a witness for appellant who was questioned upon his cross-examination relative to having been convicted on a charge of possessing intoxicating liquor for the purpose of sale. There is nothing in the bill of exception to show that the witness gave testimony material to appellant's defense. If the question propounded to him by the district attorney was improper, in the absence of a showing that the witness gave material testimony in behalf of appellant, we would not be warranted in holding the error reversible. McMurray v. State,45 S.W.2d 607. In Widener v. State, 5 S.W.2d 138, we said: "By bills of exception Nos. 1 and 2, appellant complains of the misconduct of the county attorney in improperly impeaching one of his witnesses. While appellant's bills show that the method of impeachment was improper, they contain no statement of facts showing the materiality of the testimony of the impeached witness. We do not know from said bills what testimony the witness gave. If his testimony was immaterial, his improper impeachment would not have been harmful to appellant. Miller v. State, 67 Tex.Crim. R., 150 S.W. 635; Holmes v. State, 68 Tex.Crim. R., 150 S.W. 926. The bills of exception being insufficient in the respect mentioned, reversible error is not made to appear." See also Ewing v. State, 49 S.W.2d 450.

We disclaim any intention of holding that the bill of exception was improperly dealt with in the original opinion herein.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.