The opinion
ON MOTION FOR REHEARING.
LATTIMORE, Judge.
In its motion for rehearing the state asserts that the testimony, the admission of which was held by us to be reversible error in our former opinion, was admissible on behalf of the state to combat evidence introduced by appellant while a witness, and drawn by him from the receiver of the bank, showing that appellant had received more from said receiver for his homestead than it was worth. In other words, we held it error for the state to prove over objection that appellant received $4,000.00 in cash and a credit of $6,100.00 on his indebtedness to the bank for his homestead from the receiver
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of the bank, and then to prove by real estate men that the homestead was only worth $4,000.00; and the state now here contends that it was permissible for it to prove by said real estate men that the value of the homestead was only $4,000.00, inasmuch as appellant had undertaken to win favor in the eyes of the jury by testifying and having the receiver to testify that he had turned over to the receiver his homestead, worth something over $10,000.00, and had gotten only $4,000.00 out of it. An inspection of the record shows that the state is in error in its assumption of the fact that the testimony that appellant had turned his homestead over to the receiver was brought out by the defense. Mr. Mangum, the former receiver of the bank, was introduced as a witness for the state and testified to this fact on his direct examination. Appellant took the stand as a witness in his own behalf and did not refer to such fact on his direct examination, but it was drawn out of him by the state on cross-examination. It thus appearing that appellant had not attempted to make capital of his surrender of his exempted homestead, and that we were right in our original opinion, the state’s contention that it should have been allowed to make the proof because such testimony was drawn out by appellant, is erroneous.
The state’s motion for rehearing is overruled.
Overruled.