
    ROSS v. STATE.
    (No. 9600.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.)
    1. Criminal law <§=^539(1)—Witnesses <§=^379 (8)—Testimony of defendant's son at trial of witness who claimed to own liquor found at defendant’s house, held inadmissible in subsequent prosecution of accused for possessing liquor either to impeach son or as evidence against father.
    In prosecution for possessing intoxicating liquor, where roomer at accused’s house, who had previously been convicted of possessing liquor, testified that liquor found belonged to him, evidence as to testimony of accused’s son at such former trial held inadmissible, since it could not be binding on accused, and it was not proper to impeach defendant in previous case on immaterial or collateral issue.
    2. Intoxicating liquors <&wkey;226—Testimony as to whether witness, who claimed to own liquor found at accused’s house and who later married her, had been married before, held inadmissible.
    In prosecution for possessing intoxicating liquor, testimony as to whether roomer at accused’s house, who claimed to own liquor found there and who later married accused, had been married before he married her, held inadmissible.
    <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      3. Intoxicating liquors &wkey;>226 — Testimony as to whether witness, who claimed to own liquor found at accused’s house, testified at his own trial for possessing liquor, held inadmissible.
    In prosecution for possessing intoxicating liquor, testimony as to whether witness, who claimed to own liquor found at accused’s house, took stand and testified at his own trial for possessing liquor, held inadmissible.
    4. Criminal law <&wkey;>338(6) — Witnesses @=383 —Evidence, on cross-examination, as to whether whisky was mentioned at. trial of witness who claimed to own liquor found at defendant’s house, held inadmissible in subsequent prosecution of accused for possessing liquor against defendant or to impeach witness.
    In prosecution for possessing intoxicating liquor, where roomer at accused’s house, who had previously been convicted of possessing liquor, testified that liquor found belonged to him, evidence on his cross-examination, as to whether whisky was mentioned at his trial, held inadmissible against defendant or to impeach witness.
    5. Criminal law &wkey;338(7) — Testimony of prosecutor as to whether liquor was introduced in evidence at trial of witness who claimed to own liquor found at defendant’s house, held inadmissible in subsequent prosecution of accused for possessing liquor.
    In prosecution for possessing intoxicating liquor, where roomer at accused’s house, who had previously been convicted of possessing liquor, testified that liquor found belonged to him, testimony of prosecutor as to whether liquor was introduced at his trial, held inadmissible.
    tS=s>Etor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Maggie Ross was convicted of unlawful possession of intoxicating liquor, and she appeals.
    Reversed and remanded.
    Warren W. Moore, of Austin, for appellant. Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   BAKER, J.

Appellant was convicted in the criminal district court of Travis county for unlawful possession of intoxicating liquor, and her punishment assessed at one year in the penitentiary.

The record discloses that the officers searched the premises of the appellant on March 17, 1924, and found about five gallons of whisky secreted in the woodshed, one quart, a pint, and two half pint bottles of whisky in an upstairs room, between the mattresses, and a small quantity of whisky in a half-pint bottle in a downstairs room on said premises, and about the 3d of April, following, witness Young, an officer, found about 60 quarts of tequila concealed on said premises, under a stairway. It was the contention of the defendant, and she introduced testimony to that effect, that she was not interested in said intoxicating liquor, and did not know that same was on said premises. The record shows without contradiction that at the time said premises -were raided on March 17th the appellant was not at home, but left the day previous, and was visiting her sister in San Antonio, and remained there for about two weeks. In behalf of appellant, Reeves Lloyd took the witness stand and testified that he occupied the upstairs room where said whis-ky was found, and that the whisky found on said premises, as well as the tequila, belonged to him, that he purchased it from parties in San Antonio, and same was delivered to him on the premises of the appellant, and while she was absent, and that he concealed same without her knowledge and consent, and that when the grand jury subpoenaed him before it, .he informed the grand jury that all of said intoxicants, including the whisky and tequila on said premises, was his property; and he further testified, and evidence was introduced to that effect, that the grand jury returned a bill against him, charging him with the possession of intoxicating liquor, on the 3d of April, 1924, and upon trial he was convicted for said offense. The witness Young for the state testified that/ as a result of what said Lloyd had stated about the officers not getting all of said whisky on the first raid, he searched the premises again and found the tequila mentioned under the stairway. The state’s testimony also showed that at the time the raid was made, the appellant was a widow, and that the room where the whisky was found between the mattresses, upstairs, contained clothing such as usually worn by men, and same was occupied by Lloyd. This is a sufficient statement of the facts for a discussion of this ease.

There are 17 bills of exceptions in the record, but from the disposition we have made of this case, we will only discuss such questions and bills as we think necessary for a proper discussion of the issues involved.

In bill 11, appellant complains of the action of the court in permitting the state, on cross-examination of witness Lloyd, over her objection, to interrogate him and have him testify as to what her son, John K. Ross, Jr., testified in the case of the State of Texas v. Lloyd, charged with possession of intoxicating liquor, on said April 3, 1924, because same was irrevelant, hearsay, immaterial, related to what took place in the absence of this defendant on said trial, and was not binding on her, and would prejudice the jury against her. Said bill shows that the state offered said testimony for the purpose of impeaching the witness Lloyd. We fail to see how the testimony in question, as to what John K. Ross, Jr., testified in the Lloyd Case, wherein the appellant was in no way a party thereto, could be binding on her, or serve to impeach the witness Lloyd on a.material issue in the instant case. This testimony was not sought for the purpose of impeaching witness Ross. This character of testimony was improperly admitted. Branch’s P. C. p. 97, § 165; Hooper v. State, 272 S. W. 493, 100 Tex. Cr. R. 147.

Bill 12 complains of the action of the court in permitting the state, after said witness Lloyd had testified to his marriage to the appellant in August, 1924, on cross-examination and over her objection, to ask him and have him testify that he had been married prior thereto. The appellant contends that this testimony was irrelevant and immaterial, threw no light on the issues involved, and was prejudicial to her rights. We think the trial court erred in admitting 'this testimony. Bill 13 complains of the action of the court in permitting the state, on cross-examination, to show by the witness Lloyd that he did not take the stand and testify upon his trial, charged with having in his possession tequila, which was found on the premises of the appellant on April 3, 1924, because said evidence was prejudicial to the appellant and was wholly immaterial, irrelevant, and not binding on her. Whether the said Lloyd testified in his own case or not, we think, was immaterial in this case, and that such testimony should not have been admitted.

In bill 14, appellant complains of the action of the court in permitting the state, on cross-examination of the said witness Lloyd, to ask him if in his case involving the possession of intoxicating liquor, obtained on the raid of April 3d, if it were not a fact that there was nothing said on his trial or a thing asked a witness in that case by the state or the defendant about whisky, and if all the questions were not confined to the possession of the tequila found under the stairway. The witness testified in answering thereto that something was said about whisky. The appellant objected to this testimony because it was irrelevant and immaterial and not binding on her in any way as to what was testified on said trial, and that said testimony was prejudicial and would inflame the minds of the jury against her. The state offered said testimony for impeachment purposes. We think the contention of the appellant is correct, and that said testimony should not have been admitted against the appellant under the circumstances, and it was not proper to impeach said witness on an immaterial or collateral issue. See authorities supra.

In bill 15, complaint is made to the action of the state in permitting a witness to testify, over her objection, that he prosecuted the Reeves Lloyd Case in question, and that “there were several bottles containing liquor on the table, but could not say whether they were introduced in evidence or not; that there was no corn whisky introduced in evidence in that case.” Appellant objected to said testimony because same was immaterial, shed no light on the issue involved in her case, that she was not a party to the matter under investigation at said time, that said testimony was prejudicial, and would tend to inflame the minds of the jury against her. We think the appellant’s contention is correct, and that it was error to admit this testimony. ' What we have said in reference to bills 14 and 15 applies to bill 16, relative to the admission of the evidence of the witness Young, as to the kind of intoxicating liquor introduced in evidence on the Reeves Lloyd trial.

There are several bills of exceptions in the record complaining of the questions propounded by the attorney prosecuting, to the jury, and the conduct of the said attorney, in conducting the case, which appellant contends was done wholly for the purpose of prejudicing the jury against her; but in view of the disposition we have made of the case, and that said issues are not likely to arise upon another trial, we deem it unnecessary to go into a discussion of same at this time.

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

PER CURIAM.

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

MORROW, P. J., absent.  