
    WILSON v. STATE.
    (No. 4453.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law &wkey;>369(l) — Evidence—Admissibility.
    In a prosecution for unlawfully carrying a pistol, the fact that defendant was at the time of trial charged in the district court with assault with intent to murder was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 822.]
    2. Criminal Law <&wkey;719(3) — Trial — Argument oe Counsel.
    The prosecuting attorney was unwarranted in stating from his own knowledge facts that defendant was at the time of trial charged in the district court with assault with .intent to murder.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669.]
    3. Criminal Law <&wkey;1037(2) — Trial—Argument oe Counsel — Waiver.
    Error in making such statements, where the statement would be inadmissible in evidence and is damaging, is not waived by failure to request a special charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645.]
    Appeal from Bosque County Court; W. A. York, Judge.
    Harry Wilson was convicted of unlawfully carrying a pistol on and about his person, and he appeals.
    Reversed and remanded.
    Word & Word, of Meridian, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Charged by information, with the offense of unlawfully carrying a pistol on and about his person, judgment on the jury verdict assessing appellant’s punishment at a fine of $100 and 60 days’ confinement in the county jail is the basis of this appeal.

The county attorney in his closing argument to the jury used the following language, as- shown by the bill of exceptions:

“I am going to take the liberty to testify further that this very negro is now charged with assault with intent to murder in the district court of this county.”

This fact was not in evidence, and would not have been admissible in evidence upon the trial of the case. Morgan v. State, 62 Tex. Cr. R. 120, 136 S. W. 1065; Haney v. State, 57 Tex. Cr. R. 158, 122 S. W. 34; Schwen v. State, 37 Tex. Cr. R. 370, 35 S. W. 172; Branch’s Ann. P. C. p. 99, and cases cited.

In Branch’s Ann. P. C. p. 205, § 363, are cited a number of cases to the effect that the prosecuting attorney is unwarranted in stating from his own knowledge facts not proven before the jury, particularly when the fact was a damaging one which would not have .been admissible in evidence. Marshall v. State, 76 Tex. Cr. R. 386, 175 S. W. 154; Turner v. State, 39 Tex. Cr. R. 329, 45 S. W. 1020, and other cases there cited.

The error in making such statements where the statement would be inadmissible in evidence and is damaging is not waived by failure to request &, special charge. Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; Davis v. State, 54 Tex. Cr. R. 250, 114 S. W. 366, and other cases cited in Branch’s Ann. P. C. p. 204. In the same volume (page 214, § 303) it is said that the error committed in the proof of other offenses when not admissible is not cured by their withdrawal. However, there was no withdrawal in this instance. Collins v. State, 75 Tex. Cr. R. 534, 171 S. W. 730; Haney v. State, 57 Tex. Cr. R. 158, 122 S. W. 34; Henard v. State, 46 Tex. Cr. R. 93, 79 S. W. 810; Welhousen v. State, 30 Tex. App. 626, 18 S. W. 300.

Appellant’s other assignments of error are not well taken.

For the error pointed out, the judgment oí the lower court is- reversed, and the cause remanded. 
      <gz=3For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     