
    DARNABY v. STATE.
    (No. 8647.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    1. Witnesses <8=3380(5) — 'Written statement, made by state’s witness to prosecutor before trial, improperly admitted.
    In prosecution for manufacturing intoxicating liquor, where state’s witness denied having been present when defendant manufactured liquor, his written statement to special prosecutor before trial, and oral statements to private prosecutor and other officers, privately and in absence of accused, held improperly admitted, either for impeachment or any other purpose.
    2. Criminal law <8=3419, 420(12) — Telegrams to and from game commissioner relative to date of issuance of hunting license in connection with alibi held hearsay.
    In prosecution for manufacturing liquor, where, in rebuttal to testimony that accused was seen manufacturing whisky, he showed when hunting license was issued and that he had gone on hunting trip during that time, purported telegrams to and from game commissioner, showing date of his hunting license to be other than he had claimed, held hearsay and inadmissible.
    3. Criminal law <8=3665(I) — Invocation of rule is discretionary, but must not be abused.
    Invocation of rule as to witnesses is within discretion of trial court, but should not be arbitrarily refused.
    4. Witnesses <8=»224 — Autobiography of witness should be excluded, no matter how interesting.
    Autobiography of witness, not material to issues of case, should be excluded, no matter how interesting.
    Commissioners’ Decision.
    Appeal from District Court, Bosque County ; Irwin T. Ward, Judge.
    Bill Darnaby, alias Rabbit Darnaby, was convicted of manufacturing liquor, and he appeals.
    Reversed and remanded.
    E. T. Adams, of Glen Rose, and Marvin B. Simpson (of Simpson, Moore & Parker), of Port Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Bosque county for the offense of manufacturing liquor and his punishment assessed at confinement in the penitentiary for a term of two years.

Appellant contends that the trial court erred in admitting in evidence the written statement made by the state’s witness Jim Lowe to the special prosecutor before the trial began, and also admitting statements of the same witness made to the private prosecutor and other officers privately and in the absence of the defendant.

The witness Jim Lowe was the first witness called by the state and was asked with reference to whether or not he had been present when the defendant manufactured liquor in Somerville county. The witness Jim Lowe disclaimed being present at the time appellant manufactured liquor. In this state of the record, the private prosecutor, over objection of appellant, asked him many questions as to a written statement the witness had made and signed in the presence of the private prosecutor and the sheriff, Mr. Wright, and. others, excused said witness from the stand, and over the appellant’s objections placed the sheriff on the stand and identified the statement the witness had signed prior to the time he was on the witness stand, and then introduced in evidence a written statement signed by the witness which written statement, if true, had a strong tendency to show the guilt of appellant. After reading the statement in evidence, the state again called the witness Jim Lowe to the stand, and he testified to the truth of the things contained in the statement, repudiated his former testimony, and gave thereafter testimony against the appellant. Appellant made proper and timely objections to .this entire procedure, and in addition thereto offered his special charges 1 and 2, asking the court to instruct the jury not to consider the testimony of the witness Wright, and the witness Burton (Burton having also testified to the statement being signed by Lowe), with reference to the statement of the witness Jim Lowe, and also instructing the jury not to consider in evidence the written statement of the witness Lowe. All of his objections to the introduction of the testimony were overruled, and his special charges were refused.

Instead of giving the special charges requested by the appellant concerning this matter, the court instructed the jury that the testimony of the' witnesses Burton- and Wright could only be considered, if at all, for the purpose of affecting the testimony, if it did so, of the witness Jim Lowe, and the written statement of the witness Jim Lowe could only be considered for the purpose of affecting the credibility, if it did so, of Jim Lowe, and instructed the jury not to consider said testimony for any other purpose. This testimony ought to have been excluded in the first instance. Price v. State, 66 Tex. Cr. R. 400, 147 S. W. 243. Having failed to exclude it when objected to, it was clearly the duty of the court to instruct the jury not to consider it for any purpose, when timely requested to do so. It was also error for the court to instruct the jury that they could’ consider this testimony for the purpose of affecting.the credibility of the witness Jim Lowe. It will be observed that the witness Jim Lowe was not attacked in the manner above stated by the appellant, and it is clear that his testimony could not he supported in any such manner by the state. Branch’s P. O. p. 95, for full citation of authorities on this question.

The record in this case showed that the state’s witnesses testified that they saw the defendant manufacturing whisky in Som-erville county in November, 1922. In rebuttal of this testimony, appellant proved by the witness Holder, the county and district clerk of Somerville county, that it was a part of his duty to issue hunting licenses, and that in that capacity on the 12th day of November, 1922, he issued to appellant a hunting license, and this hunting license was placed in evidence. Appellant then offered various witnesses to the effect that he was away from Glen Rose on a hunting trip in November, 1922. Under this state of the record, the state was then permitted to introduce in evidence, over, the objections of defendant, copies of twb purported telegrams, one signed by the county attorney of Bosque county and addressed to W. W. Boyd, game commissioner, Austin, in which it was asked: “On what date was Will Darnaby’s hunting license issued from Somerville county in 1922?” In reply to this telegram was one signed by W. W. Boyd, addressed to the county attorney, which said: “Hunting license issued Bill Darnaby November 22, 1922.” Appellant objected to the introduction of these telegrams on the ground that they were hearsay and on many other grounds, and his objections were overruled. These telegrams were hearsay of the purest type, and the court erred in admitting them in evidence. Miller v. State, 65 Tex. Cr. R. 302, 144 S. W. 240.

Appellant complains at the court’s action in refusing to invoke the rule as to the witness M. Burton, and in permitting said witness to remain in the courthouse and testify in behalf of the state. This is a matter usually within the discretion of the trial court, but we see nothing in this record that would justify the court in arbitrarily refusing to place this witness under the rule. He is not shown to have been an officer of the court, and there is nothing in the record that shows that his presence in the courtroom-was necessary to a proper trial of the case. As above stated, these are matters within the sound discretion of the court, and we are not holding that the court’s action in this instance would be reversible error; .but in view of another trial, we see no reason why the rule should not have been applied to this witness.

In view of another trial of the case, we suggest the propriety of the trial court confining the testimony of the witness Dick Watson to matters germane to the case on trial. However interesting it may be, we fail to see the materiality of his testimony, which contains his rather full autobiography. The appellant is to be tried for the offense with which he stands charged, and extraneous matters that have no bearing on the issues involved ought to be excluded.

Complaint is made at the action of the court in permitting the private prosecutor to express his personal opinion during the trial with reference to the district attorney of another district. This matter will not likély occur on another trial of the ease, and it is sufficient to say that it had no place in this trial. 1

There are various other errors alleged by appellant, but they may not occur bn another trial of the case.

For the errors above discussed, it is our opinion that the judgment should be reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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