
    LONG v. STATE.
    (No. 9425.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.)
    1. Criminal law &wkey;>595(4) — Application for continuance, becáuse of absence of material witness, held erroneously refused.
    In prosecution for manufacturing liquor, application for continuance because of absence of witness, called away on serious illness of father, who would have testified that accused fed stock soaked chops and bran, in contradiction of state’s testimony of finding mash poured on ground, and would have testified to fact showing that state’s witness was accomplice of accused, •held erroneously refused.
    2. Criminal law <&wkey;369 (6) — Permitting proof of conviction of accused for another offense held improper.
    In prosecution for manufacturing liquor, permitting state to prove that accused had at some previous time entered plea of guilty in federal court to offense of possessing equipment for manufacturing whisky held, improper.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    Bob Long was convicted of manufacturing
    intoxicating liquor, and he appeals.
    Reversed and remanded.
    ( M. B. Briggs and Maberry & Maberry, all of Gilmer, for appellant.
    Sam D. Stinson, State’s Atty., of Gréen-ville, and Nat Gentry, Jr., Asst. State’s Atty.. of Tyler, for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor, with punishment assessed at confinement in the penitentiary for one‘year.

The state used as a witness one Bob Roberts, who testified that he ha<} been at appellant’s house and had seen him manufacturing whisky during the year 1923. Officers testified that they went to appellant’s premises in the fall of 1923, and there found certain articles which could be used in manufacturing whisky. Some of the.things appeared to have been more recently used than others, and bore the odor of mash. One officer testified that he found where some liquid had been poured out on the grass, and that the appearance of the grass indicated the liquid had been poured out while hot; that this bore the odor of mash after it had been cooked off. Appellant did not testify.

His wife testified that her husband had made a small quantity of whisky for her in the spring of 1923, being assisted by Bob Roberts; that she was ill at the time, and the doctor had recommended whisky for her ; that her husband did not know how to make it, and that Roberts had directed the operations and furnished the coil which was used in its manufacture; that they made only about half a gallon, half of which Roberts took for his part; that no other whisky had been made by appellant since the spring of 1923. She further testified that at the time the officers made the search of the premises, in the fall of 1923, she and appellant had ,some hogs and chickens which they were feeding on soaked chops and meal; that in the morning before the officers came she had fed to the chickens some of this soaked chops, throwing it out on the grass where one of the officers claimed to have found the substance testified about by him.

The witness Bob Roberts denied that he at any time told appellant how to manufacture intoxicating liquor, or aided him in the operation, or furnished a coil to be used for that purpose. Another witness testified that ■appellant got from witness’ barn a tow sack containing an article which, from the description given by the witness, appeared to be a coil, and said this article was left in the barn by said Roberts. The truthfulness of this incident was also challenged by Roberts.

From the foregoing recitals it is apparent the issue was sharply drawn whether Bob Roberts was an accomplice with appellant in the manufacture of liquor. This issue was submitted for the jury’s solution. The foregoing statement has been made somewhat in detail as pertinent to the question now to be considered.

Appellant sought a continuance on account of the absence of one Talkington. This witness had been subpoenaed, had attended the term of court at which the trial was had, and also the former term thereof, in obedience to process. Three or four days before this case was called for trial the witness had received a mesage that his father was seriously ill in Collin county, where the witness had gone in response to such information. It is alleged in the application that appellant expected to prove by the absent witness that he lived just across the road from appellant at the time the officers made the search and discovered the containers and evidence of mash having been poured out about appellant’s premises, and that said witness would have sworn that he frequently visited appellant’s house, sat up with the family while they were sick, and also during said timé fed appellant’s stock, including the hogs, and chickens, and knew that appellant at that time soaked corn, chops, and bran for the purpose of feeding the stock in question, and that such feed was soaked in the containers which the officer’s testimony intimated had been used in the manufacture of whisky. It is furthér averred in the application that Talkington would also have sworn that he saw the witness Roberts at appellant’s on several occasions, and that Roberts was aiding appellant in making whisky. The diligence to procure the attendance of this witness is pot challenged.

We think the materiality of his proposed testimony is" unquestioned. If the state was relying for conviction upon the manufacture of the whisky which Roberts claims to have witnessed,' then Talkington’s testimony would have been material upon the issue as to whether said Roberts was an accomplice. On the other hand, if the state relied upon the circumstances testified to by the officers as to finding the containers and ,evidence of mash, etc., then Talkington’s testimony was material in supporting the testimony of appellant’s wife in her explanation of the use made of the containers and the purpose for which the chops, bran, etc., was being used. We think, under the showing made, the court fell into error in denying the application for continuance. If the materiality of .the absent testimony was not apparent from the face of the application, it became so after the development of the case, and the court should have granted a new trial because of error in denying the continuance in the first place.

Over appellant’s objection the state was permitted to prove by the witness Fry that he was present in the federal court at Jefferson .at a time when appellant entered a plea of guilty in said court to the offense of possessing equipment for manufacturing whisky. Appellant did not testify; therefore the evidence of Fry had no place in the case for impeachment purposes. As the bill appears in the record, the evidence of Fry disclosed that at some'time'appellant had been charged with another crime and had entered a plea of guilty thereto. We observe nothing which brings it under any exception permitting proof of other offenses. See Branch’s Ann. Tex. P. C. § 166.

We have examined the other hills of exception, and are of opinion they are without merit.

Because of the errors discussed, the judgment is reversed, and the cause remanded. 
      <@=aPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     