The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
The State has filed a motion for rehearing insisting that we were in error in predicating a reversal on proof over objection that the witness Sullivan had been jointly indicted with appellant for bootlegging. In an effort to explain away the error in admitting such testimony the State attaches to its motion an excerpt from the notes of the Court Reporter. The proceeding which we are now asked to consider is no part of the record and should not have been attached to the State’s motion.
Bills of exception must be construed as they appear in the record and the bill complaining of the incident mentioned is approved without qualification or explanation. The State unquestionably had the right to cross-examine the witness Sullivan upon the point of his friendly relations with appellant, as touching his bias as a witness, but we are at an entire loss to understand how a joint indictment against the witness and appellant could have any bearing upon the question of bias. The return of the indictment was an act of the State, not an act of the witness, and one over which the witness had no control either as to its form or substance. The State, as touching the credibility of Sullivan could ask him about whether he had been indicted in Mills County, but the question as framed involved the joint indictment of appellant with the witness. Of course, if appellant had testified his indictment could have been shown as affecting his credibility. But he did not testify, and under those circumstances we feel compelled to adhere to the conclusion announced in our original opinion.
The State’s motion for rehearing is overruled.