
    CLAXTON v. STATE.
    (No. 7664.)
    (Court of Criminal Appeals of Texas.
    May 23, 1923.)
    I. Witnesses @=>379(9) — Witness may be impeached by showing testimony before grand jury at variance with that at trial.
    A witness may be impeached by showing that he testified before the grand jury in a material matter at variance with his testimony at trial, and refusal of the court to allow a predicate to be laid for such impeachment is error.
    2. Criminal law @=>599, 649(2) — Where state attempts to prove transaction similar to one charged in indictment accused should be given opportunity to present application for continuance or postponement.
    If one offense be described in an indictment, and at trial it develops that the state relies on a different, but similar, transaction, accused, on asserting his surprise and that he can meet the case now sought to be proven, should be given an opportunity to prepare and present his application for postponement or continuance, based on such facts.
    3. Criminal law @=>599, 649(2) — Where offense on date other than charged in indictment is sought to be proved, accused held entitled to continuance or postponement.
    Where an indictment alleged an illegal sale of liquor on a particular date, and the state undertook to prove a similar offense on a different date, held, that accused, after sufficiently pleading surprise and making it appear that he had an adequate defense, was entitled to .postponement or continuance.
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    Charley Claxton was convicted of the offense of selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    Clyde F. Winn, of Waxahachie, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Ellis county of the offense of selling intoxicating liquor, and his punishment fixed at one year and six months in the penitentiary.

The indictment alleged the sale of intoxicating liquor by appellant to one McCray on June 1, Í922. On the trial said state witness testified that the liquor was sold to him upon June'19, 1922. Appellant had sought a postponement to obtain witnesses by whom he ex--pected to prove an alibi, and that he was in Dallas county on June 1st and for several days about that date. The questions mentioned below were raised and properly presented herein by bills of exception.

A witness may be impeached by showing that he testified before the grand jury in a material matter at variance with his testimony on the trial, and the refusal of the trial court to allow a predicate to be laid for such impeachment was erroneous. Rippey v. State, 29 Tex. App. 43, 14 S. W. 448; Wyatt v. State, 38 Tex. Cr. R. 259, 42 S. W. 598; Gibson v. State, 45 Tex. Cr. R. 313, 77 S. W. 812; McGill v. State, 60 Tex. Cr. R. 617, 132 S. W. 941.

If one offense be described in the indictment, and during the trial it develops tliat the state relies on a different, but similar, transaction, the accused, who asserts his surprise, should be given time and opportunity to prepare and present his application for postponement or continuance based on such surprise, and the further proposition that he can meet and defend against the case now sought to be made. Cunningham v. State, 20 Tex. App. 167; Robbins v. State, 33 Tex. Cr. R. 573, 28 S. W. 473; Batson v. State, 36 Tex. Cr. R. 616, 38 S. W. 48; Smith v. State, 40 Tex. Cr. R. 391, 50 S. W. 938.

If the state allege one date in the indictment and undertake to prove an offense of different date, and the accused sufficiently plead surprise and therein make it appear that he had an adequate defense to the date now made by the state’s proof, a postponement or continuance should be granted.

For the errors mentioned, the judgment will be reversed, and the cause remanded. 
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