¶1 ON MOTION FOR REHEARING.
¶2 Appellant bases his motion for rehear *472 ing and oral argument chiefly on the proposition that we misapprehended his bill of exception number four; and in our discussion treated it in connection with bill number five. Number four related to a question asked by the district attorney, and number five to a remark of the trial judge at the time he overruled appellant’s objection.
¶3 As stated in our original opinion, the issue was whether appellant’s condition at the time of the unfortunate killing of the child was due to intoxication or to the effect of a narcotic. Witnesses who came in contact with appellant at the scene of the accident and immediately thereafter testified that the odor of whisky on appellant’s breath was noticeable. On direct examination appellant developed from Dr. Mann, one of his own witnesses, the following testimony: “As to whether it is hard to distinguish whether or not a man is intoxicated by the use of liquor or is under the influence of dial ciba — well, there wouldn’t be any smell of liquor when he is under the influence of dial. When he is under the influence of dial there wouldn’t be any smell of liquor on his breath. His manner of locomotion, and other manners, would be practically the same, only if left alone the patient would drop into a deep slumber. As to what my experience is with a drunk man having a severe shock with reference to sobering him up — well, as a rule, it sobers them up right now, but with dial ciba they sleep right on.”
¶4 Other physicians testified in substance as did Dr. Mann with reference to the similarity of the actions of one who was drunk and one who was under the influence of the narcotic named, except they were not questioned regarding the odor of liquor on the breath. Officers who had charge of appellant after the accident testified that he did not “sober up or come to his senses for a considerable period of time after the accident.” To save repetition we refer to our original opinion for the statement of what is shown in bill number four. The qualification mentioned in said opinion relates to bill number five. Appellant objected to the question asked Dr. Dutton on cross-examination on the ground that it was a hypothetical question not supported by any evidence in the record. Over objection the witness answered that one who had been drunk for four days would not respond to a shock as readily as one recently intoxicated. If the question was hypothetical, and not proper, we have not been able to reach the conclusion that it was followed by the harmful consequences claimed by appellant. Taking into consideration the officer’s testimony in connection with that of the *473 physicians, the answer of the doctor to the question objected to appears to have been favorable to appellant.. That is to say, if the jury accepted appellant’s testimony and that of his witnesses to the effect that he had not been drinking intoxicating liquor on the days previous to the accident, and that one intoxicated would respond to a shock when one under the influence of the narcotic would not so respond, then it would appear to follow that a failure to respond to the shock would be favorable to appellant’s contention that he was under the influence of the drug. It is not likely the jury confused the question with the proven facts as certified in the bill.
¶5 We note that a somewhat similar occurrence came into the record without objection. Dr. Boyce, the city and county health officer, was called as a witness by appellant. He testified that a day or two after the accident he saw appellant in jail and examined him, and found that his stomach was distended with gas — that he was suffering from gastritis in an acute attack —commonly known as indigestion. On cross-examination the witness testified: “People who have been drinking intoxicating liquor, or what is commonly called bootleg liquor, for several days will sometimes have a severe attack of indigestion and if you have been drinking it for some little time it sure as the world will. As to whether it is a fact as to what we call ordinary bootleg whisky will upset a man’s stomach pretty badly — well, any whisky drunk over a long period of time will cause you to have indigestion or a gastric upset.”
¶6 Considering the entire record we are not impressed that the incident complained of in bill of exception number four presents reversible error.
¶7 We believe the questions raised by bills of exception numbers eleven and thirteen were correctly disposed of originally, and that no further discussion is called for.
¶8 The motion for rehearing is overruled.
¶9 Overruled.