¶1 ON REHEARING.
¶2 May 30, 1923.
¶3 Appellant has filed a most forcible motion reviewing the authorities relied upon by us in our original opinion, and the questions decided, and insists that we were in error, and the matters have again been carefully considered.
¶4 It is not intended to be held by us that in every ease the trial court may arbitrarily, out of their regular order take up cases pending upon his docket and force the accused to trial. The orderly procedure of the courts would seem to require that when a docket is set that those interested in litigation may depend upon some disposition being made of the cases set prior to those in which they are interested before the latter are called for trial. That the above could not be hard and fast rule, however, would be manifest upon very little thought, and as it is the rule that appellate courts are to accord fairness and legality to the proceedings of trial courts until the contrary is made to appear, — when cases are called out of their order and tried and this is to be relied upon as an erroneous proceeding upon appeal, it would seem clear that the party complaining should not rely upon the naked proposition that his case has been called out of its order, but would be held to plead and prove as a part of his objection to such proceeding, that he had suffered injury. In the instant case it is plain that there were on the docket two cases against appellant whose numbers would indicate that they were older cases than the one upon which this trial was had. It also appears in this record that when this ease was called for trial appellant objected to going to trial herein upon the ground that the docket showed that the cases of the State of Texas v. Perry Moore, Nos. 5727 and 5732 were prior to and before this case, and that the defendant was taken by surprise upon the calling of the above entitled and numbered cause as he had made *494 his preparation for trial in the order in which the said cases against him had been filed and appeared on the docket thereof, and to call this case and force defendant to trial at this time in addition to the above reason, would work a prejudice against the defendant as he expected to take the stand in his own behalf and would be liable to and could be examined by the State with reference to the preceding cases now pending against him on the docket of his court charging violations of the liquor law of the State of Texas. It is not set up in the motion presenting appellant’s objections to going to trial in this case, that he was demanding a trial in either of the other cases with the expectation of' being acquitted. This would seem to us to present the most substantial reason why he should demand a trial in the preceding cases. It is clear that under our rule of practice one who has pending against him a felony indictment, or who has been convicted for a felony, may be asked relative to same while a witness in his own case. If appellant did not expect to be acquitted in the two preceding and older cases on this docket, certainly a trial in them and a conviction for the offenses there charged, would be a matter which might be inquired about on cross-examination when this case was reached and he took the stand as a witness therein, and it would seem to us that if he had been tried and convicted in the two former cases before this ease was reached, the development of such fact would much more materially affect his credibility as a witness than would the fact that there were pending against him two indictments for felonies upon which he had not been tried.
¶5 In other words it does not appear to us that the objections presented by appellant to calling this case out of its order presented any sufficient reason why the learned trial court should have granted same. If appellant had witnesses in this case who were not present when called for trial but whom he expected to have present by the lapse of a reasonable time for the trial of the other cases, or if he had reasonable ground for believing that a trial of the other cases would result favorably to him, or if he could show any other substantial reason, or the probability of injury, this court would be inclined to hold that the trial court should not have called the case out of its order. The mere objection that a case is called out of order, does not suffice to overthrow the presumption in favor of the regularity and orderliness of the procedure of the trial courts.
¶6 There is much force in the argument of appellant directed at the weight of the testimony but we áre not able to say that the verdict of the jury is so contrary to the testimony as to make it apparent that same was caused by prejudice or passion. A State witness testified positively that he bought the whisky from appellant, claiming to have gotten two half-gallon jars which he brought away in a tow sack. This was the 21st of June, 1922. Another State witness testified as positively that on the 21st of June he saw said State witness com *495 ing through a pasture at or near appellant’s place with a tow sack in his hand and that he put it in a car in which another man was and that as they turned the car to leave they killed the motor. The other State witnesses testified that on the 21st of June they apprehended the principal State witness in a car with a man named Morrissy and that they had a gallon of whisky in a tow sack in said car. For appellant he introduced a number of witnesses who testified very strongly that they were with appellant and were near him and saw him during the 21st of June and that he made no sale of liquor to the State witness. The jury has solved these matters of conflict and we do not feel disposed to disturb their verdict.
¶7 The matter of the misconduct of the jury was fully discussed in the original opinion. „
¶8 Finding no error the motion for rehearing will be overruled.
¶9 Overruled.