Schultz v. State , 97 Tex. Crim. 473 ( 1924 )

Upon mature reflection we are inclined to the opinion that we erred in affirming this case. Appellant's complaint set out in his first bill of exceptions was of the State's proof that certain parties who were in the car with appellant at the time of the alleged transportation of intoxicating liquor, had been sought for as witnesses by the State and that they could not be found in the county. Similar questions have been before the court in other cases. In Askew v. State, 59 Tex.Crim. Rep., this court said:

"Appellant was not chargeable with the absence of State witnesses, nor would he be chargeable with the absence of any witness from the trial, unless there was something to show that he had been instrumental in keeping them away, and there was no attempt made or evidence offered to show that he was in any way connected with or instrumental in keeping the witnesses from attending court and giving their testimony. The mere absence of witnesses from a trial should not be used against an accused person unless he was instrumental in some way in keeping them away."

To the same effect are Harding v. State, 55 Tex. Crim. 634 and Clifton v. State, 46 Tex.Crim. Rep.. In our original opinion we refer to the action of the district attorney in regard to two written statements which he offered in evidence. Serious complaint is made of the actions of the State in this regard. The written statements were those of two companions of appellant who were with him in the car at the time of the alleged transportation of the liquor. They were the same parties for whom process had been issued by the State and whose absence was testified to by the deputy sheriff who said he could not find them in the county, which is first above referred to. We were inclined to regard the action of the State's attorney as being without prejudice in this matter but upon consideration have concluded that such action was hurtful to the appellant. It was not the inadvertent or casual act of the State's attorney which might be cured by an instruction of the court, but appears to have been an act done for the purpose of getting before the jury the fact that the State's attorney was very anxious to prove the statements made by one or both of said witnesses. It appears from the bills of exception that the district attorney rose before the jury holding in his hand a paper and stated in the presence and hearing of the jury: "We next offer in evidence the statement of Pinie Weaver". This was objected to and the objection was sustained, said State's attorney in the meantime having further said that this was a statement made by the witness before the justice of the peace and sworn to. Upon request the court instructed the jury not to consider the remarks of the district attorney, and the court again sustained the objection of the defense. Immediately following this the district attorney, holding in his hand another paper apparently containing writing, said: "We offer in evidence the statement made and sworn to by Dixie Guinn," and when the defense counsel objected the State's attorney further said that this was what was taken at the examination trial. The court again sustained the objection and instructed the jury not to consider any statement of the district attorney in regard to the matter. We can see little excuse for the conduct of the State in offering either paper, and none for the offer of the second paper. No predicate had been laid by showing or attempting to show that the witnesses were out of the State, and the effect of the offer of said written statements purporting to contain the testimony of said eye-witnesses, could but have the effect of getting before the jury the apparent belief of the State's attorney that such testimony was favorable to the State's case.

Being of opinion that we erred in not sustaining the appellant's contention in regard to the two matters above discussed, and that same were materially injurious, the motion for rehearing will be granted, the affirmance set aside, and the judgment will be reversed and the cause remanded.

Reversed and remanded.

[This opinion reached the hands of the Reporter June 1924.]