
    Joseph Ivan Spinks v. State.
    No. 25,939.
    October 22, 1952.
    
      Hon. Roger Garrett, Judge Presiding.
    
      Thomas L. Blanton, Albany, and T. R. Odell, Lubbock, of counsel, for appellant.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, ten days in jail and a fine of $50.00.

The contested issue in the trial was whether the appellant or one Bunkey Bowman was the driver of the automobile at the time of the accident. Each of them testified that they were intoxicated, but each claimed that the other had been the driver.

Bill of Exception No. 5 shows that, when cross-examining Bowman, appellant’s counsel asked him if immediately after the accident he had not told one Lieb that he himself had been driving, to which Bowman replied that he didn’t say anything. Then Lieb was called as a witness and testified that at such time Bunkey had said that he was the driver.

Upon objection by the county attorney, the court instructed the jury not to consider the question to Lieb or his answer.

In this, the court was clearly in error, as this evidence was admissible as impeachment of the witness Bowman.

Bill of Exception No. 7 reflects manifest error in the argument of the county attorney. In his closing argument, he told the jury, in part, as follows: “* * * I would not have filed the charge against this man if I had not known that he was guilty.”

Such argument is never proper.

Time will not permit us to discuss the other questions raised.

For the errors shown, the judgment is reversed and the cause remanded.  