
    KINSLOW v. STATE.
    (No. 9044.)
    (Court of Criminal Appeals of Texas.
    
    May 13, 1925.)
    1. Criminal law &wkey;595( 10) — Continuance for absent witnesses 'held improperly denied, though charged with liquor violations.
    In liquor prosecution, continuance for absent witnesses whose testimony would have been material to defendant’s defense held improperly denied where they had been subpoenaed it being immaterial that they were charged with liquor violations, or with the identical offense with which defendant was charged.
    2. Criminal law <&wkey;5l9(3) — Admission of statements made by defendant to sheriff while under arrest heid erroneous.
    In liquor prosecution, court erred in permitting sheriff to testify as to what defendant told him about finding whisky in tank of water after sheriff had taken defendant down to tank to search for such whisky, since defendant was then under arrest.
    3. Criminal law <&wkey;784(l) — Evidence held to require a charge on circumstantial evidence.
    In liquor prosecution, evidence that witness, while 200 yards from house, saw defendant leave with his arm full of fruit jars, and throw them in a hole of water from which witness and sheriff afterwards got three jars full of whisky, held to require a charge on circumstantial evidence.
    Commissioners’ Decision.
    Appeal from District Court, Lamar County; R, L. Lattimore, Special Judge.
    P. A. Kinslow was convicted of possessing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Sturgeon & Wiygul, of Paris, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was charged with and convicted, of having in his possession intoxicating liquor, in the district court of Lamar county, and his punishment assessed at two years’ confinement in the penitentiary.

The record discloses that the appellant was charged by bill of indictment with said offense on the 12th day of April; 1924, and was arrested on the 14th day of April, 1924, and the case was called for trial on May 5th of said year, at which time the appellant made a motion for continuance for the want of the testimony of Mr. and Mrs. Ira Ellison, whom it was alleged, would have testi- * Bed that the defendant did not leave the house of said witnesses, and move any whis-ky therefrom prior to his arrest, and that he did not transport any whisky, nor throw any whisky nor jars of whisky in any pool of water just prior to his arrest, and that be did not in any way have any, connection with transporting, possessing, or in any manner have anything to do with any whisky on the day and at the time the defendant was arrested.

It was contended by the state that the state’s witness saw the defendant leave the house of said witnesses with his arm full of fruit jars of whisky and throw same into a tank just immediately before his arrest, and the state and defendant alike applied for subpmnaes for said witnesses, and they had been duly served, and when the case was called for trial dn May 5, the defendant made motion for continuance for the want of said testimony, but th£ court overruled said motion and forced defendant to trial, which resulted in a hung jury, and the court immediately thereafter, on the 8th day of May, again called said case for trial, when the defendant renewed said motion for continuance for said witnesses, and the state on the. same day filed a complaint or had complaint filed charging both of said witnesses with the same offense that the defendant was then being tried for, and later on, on the 17th day of May, the grand jury returned an indictment against the said witnesses. The court, in overruling the motion for continuance, and in qualifying the bill, stated:

“That prior to and at the time said defendant’s motion for continuance was passed on by the court, said Mr. and Mrs. Ira Ellison were fugitives from justice, charged with the offenses of liquor violations, they were charged with said offenses by complaint at first and then indicted by the- grand jury and have never been apprehended.”

The fact that these witnesses were charged with liquor violations would not render their testimony incompetent for the defendant, and had they been charged with the same identical transaction, then, under the law, the defendant would have had the right to have presented a motion for severance, and have them tried first, and, if acquitted, use them as witnesses in his behalf. From the bill of exception and the court’s explanation thereof, we are of opinion that the defendant used due diligence in attempting to procure this testimony which the record shows would have been vdry material to this defendant on the vital issue in his case, and the court was in error in overruling said motion.

There is some complaint made to the court’s action in permitting the sheriff to testify as to what the defendant told him about finding whisky in the tank of water after the sheriff and deputy sheriff had gone to the Rouse and taken the defendant down to the tank for the purpose of searching for the whisky in question. We think the court was in error in admitting this testimony, and, under the authorities, that the defendant was then under arrest. Clark v. State, 84 Tex. Cr. R. 390, 207 S. W. 98.

There is also complaint made to the court’s action in refusing to give a charge on circumstantial evidence in this case. The record discloses that one of the state’s witnesses testified that, while he was about 200 yards away, he saw the defendant leave the house with his arm full of fruit jars containing whisky, and take them off about 50 or 75 yards from the house and throw them in a hole of water, three of them, and then he and the sheriff raked the hole of water and got three fruit jars full of whisky out of it. It was impossible for this witness to know this was whisky at so great a distance, and was assuming same to be whisky from subsequent results. We are of the opinion that, under the facts of this case, the court should have submitted a charge on circumstantial evidence. Rodriguez v. State, 271 S. W. 380 (recently decided by this court, but yet not [officially] published).

For the errors above discussed, we are of the opinion that the judgment of the lower court should be reversed and remanded, and it is accordingly'so ordered.

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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