
    WHITE v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.)
    CRIMINAL Law (§ 686) — Reception oe Evidence-Time.
    Code Cr. Proe. 1911, art. 718, provides that the court shall allow testimony to be introduced at any time before the argument is commenced, if necessary to a due administration of justice. Defendant’s counsel, at the conclusion of the state’s case, announced that he would introduce no testimony, but would demur to the evidence of the state. In discussion of the demurrer, a difference arose between the attorneys as to what a witness for the state had testified, and defendant’s counsel, being convinced that the witness had testified as claimed by the prosecuting attorney, stated he was laboring under an honest belief that no such testimony had been adduced when he announced he would not offer any testimony, and asked permission to withdraw the announcement and to be permitted to place the defendant on the stand. Held, that the court erred in refusing to grant the application.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1619, 1620, 1625, 1626; Dec. Dig. § 686.]
    Appeal from Tyler County Court; R. A. Shivers, Judge.
    Green White was convicted of an offense, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   HARPER, J.

We deem it necessary to discuss but one question; it being presented in bill of exception No. 1. At the conclusion of the testimony offered on behalf of the state, the defendant announced he would introduce no testimony, but would demur to the testimony. In the discussion of the demurrer a difference arose between the state’s counsel and defendant’s attorney as to what a witness, Mr. Ford, had testified. The defendant’s counsel, being convinced that the witness had testified as claimed by the prosecuting attorney, stated he was laboring under an honest belief that no such testimony had been adduced when he announced he would not offer any testimony, and asked permission to withdraw the announcement and he be permitted to place the defendant on the stand.

The testimony of defendant, as stated in the bill of exception, would be very material, and, if true, entitle him to an acquittal. We think the court erred in not permitting the defendant to introduce his testimony. Article 718 of the Code of Criminal Procedure provides that the court shall allow testimony to be introduced at any time before the argument is concluded, if it appear it is necessary to a due administration of justice. The state does not desire to deprive any citizen of a fair and impartial trial on the merits of his case, nor to deprive him of the right to have a jury to pass on the evidence. Inasmuch as the hill, by its recitals, shows that the announcement of defendant that he would offer no testimony was made under a misapprehension of what testimony had been offered, and the argument of the ease had not even begun, he should have been permitted to introduce his testimony.

The judgment is reversed, and the cause is remanded.  