
    ROBERTSON v. STATE.
    (No. 9742.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.)
    1. Criminal law <@=>390' — Testimony by sheriff as to reasons for not going to home of accused at time he arrested another held improperly admitted, since accused could not he bound by undisclosed motives of sheriff.
    Permitting sheriff, after he had testified to having gone to still, and to having arrested another, to state his reasons for not then going to home of accused, held improper since accused could not be bound by undisclosed motives of sheriff.
    2. Witnesses <&wkey;344(4) — Permitting state, on cross-examination of defense witness, to ask him about being in whisky business, held improper.
    It was improper to permit state, on cross-examination of defense witness, to ask him about being in whisky business and other matters wholly disconnected with case on trial; this being an improper manner of impeaching witness, where matters involved were not shown to have been charged against him by indictment or other proceedings.
    ;3. Criminal law <&wkey;656(5) — Court’s action in requiring witness to answer question within certain time held erroneous as calculated to impress jury with idea that court was of opinion witness was untruthful.
    Court’s action in pulling out watch and telling witness he would give him 2% minutes to answer question, on cross-examination, one way or other, held erroneous as calculated to impress jury with idea that court was of opinion that witness was testifying untruthfully.
    4.Witnesses &wkey;>357 — Refusal to permit defendant’s witness to testify that state’s witness’ general reputation for truth and veracity was such as would not entitle him to belief on oath held error.
    Where defendant’s witness had testified that general reputation of state’s witness for truth and veracity was bad, held, it was error for court thereafter to refuse to permit such witness to testify that general reputation of state’s witness for truth and veracity was such as not to entitle him to belief on oath.
    5. Witnesses <&wkey;357 — Refusal to permit defense witnesses to testify that general reputation of state’s witness Was such as to warrant jury in not believing him on oath held proper as invasion of jury’s rights and prerogatives.
    Refusal to permit defense witness to testify that reputation of state’s witness was so bad as not to warrant a jury in believing him. on oath held proper, as such testimony would be invasion of rights and prerogatives of jury.
    6. Witnesses <&wkey;277(2) — Permitting district attorney to ask accused why he didn’t place a certain party on stand and prove that he was looking after defense held improper as argumentative.
    In liquor prosecution, permitting district attorney to ask accused why he didn’t place O. on witness stand and prove that he (C.) was looking after accused’s defense 'held improper as argumentative.
    7. Witnesses &wkey;277(2) — District attorney’s cross-examination as to defendant’s turning case over to some one else to get evidence and law held error.
    In prosecution for manufacturing liquor, it was error for district attorney to ask accused on cross-examination whether he turned over case to some one else to get the evidence and law, too, and whether he did not propose to furnish the evidence in the case himself, though question was not answered.
    8. Criminal law <&wkey;369(6) — Permitting state’s witness to testify to meeting with and lecture given accused year before offense in question held error as immaterial and attempting to prove an extraneous offense.
    In prosecution for manufacturing 'intoxicating liquor, evidence that, year before offense in question, witness met accused, and observed there was something the matter with him, and lectured him for leading off her boys, held erroneously admitted as immaterial and an attempt to prove an extraneous offense to effect that accused was drunk on public road.
    9. Witnesses <&wkey;405(2) — Testimony of state’s witness that he was with accused at time of . immaterial transaction testified to held inadmissible as attempt to impeach accused on immaterial matter.
    In prosecution for manufacturing intoxicating liquor, where state’s witness had given immaterial testimony relative to meeting with accused some time before offense, permitting another state’s witness to testify he and another were present at the time held inadmissible as an attempt to impeach accused on immaterial matter.
    <S&wkey;For other cases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    . Appeal from District Court, Rains County; J. M. Melson, Judge. ’
    Tom Robertson was convicted of unlawfully manufacturing liquor, and he appeals.
    Reversed, and cause remanded.
    Rodes & Carter, of Emory, and Jones & Jones, of Mineóla, for appellant.
    
      Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Qroesbeck, for the State.
   BAKER, J.

The appellant was convicted for unlawfully manufacturing intoxicating liquor, and his punishment assessed at two years in the penitentiary.

' It was the contention of the state that the appellant and one Arthur Haney were engaged in the manufacture of intoxicating liquor at the time of the alleged offense, and the sheriff, Osborn, testified that on the day of the alleged offense, and also a day or two prior thereto, he observed the appellant at the place where the still was found, apparently stirring the mash, but, at the time when he found the still in operation and arrested Haney, the appellant was not present. The appellant’s defense was an alibi, and he testified that he knew nothing of the still in question and had no interest whatever in same. On each occasion when the state contended that the appellant was present at said still, he testified, and introduced other evidence to the same effect, that he was at another and different place. The record discloses that the still was not found on the premises of the ¿ppellant, but upon land belonging to a mortgage company, and was nearer to the Haney home than to the residence of the appellant.

By bill of exceptions No. 3 appellant complains that after the state had introduced Sheriff Osborn as a witness and he had testified to having gone to the still, and to what he had seen there, and to having arrested Haney, the state was then permitted ltd prove by said sheriff, over objection of the appellant, his reasons for not then going to the home of the appellant at said time. We think this testimony |was improperly ad-i mitted, for the reason that the appellant could not be bound in any particular by the undisclosed motives of the sheriff.

In bill No. 5 complaint is made to the action of the court in permitting the state, on cross-examination of the appellant’s witness Davidson, to ask the following question:

“I will ask you if you have not been in the whisky business youfself ? I will ask you if you and Hogg Scott have not been partners in the whisky business yourself and Hogg has been arrested? Isn’t it true that you and Hogg Seott have been making whisky; is it true or not?’’

—to which question the witness replied: ‘T don’t believe I understood it.” The court then stated to the witness:

“I think you understand the question; go ahead and answer the question one way or other. You understand the question, Mr. Davidson; -answer it one way or other. I will give you 2%- minutes [at this juncture the court pulled his watch out of his pocket] to answer that question one way.or other.”

Witness then replied to the question: “Yes, sir; I guess so.” To all of said actions, answers, and procedure appellant properly objected, and said objections were overruled by the court.

We think it was clearly improper to permit the state to ask a witness about being in the whisky business, and concerning other matters wholly disconnected with the case on trial, and that this was not a proper manner of impeaching the witness, since the matters involved were not shown to have been charged against him by indictment or other court proceedings. We are also of the opinion that the action of the court in timing the witness and making the above statement in the presence of the jury was calculated to impress the jury with the idea that the court was of the opinion that the witness was not inclined to testify, or was testifying, untruthfully about thé matters in question.

In bill of exceptions No. 8 complaint is made of the refusal of the court to permit appellant to show by the witness Kinser that the general reputation of the state’s witness Mason for truth and veracity was such as would not entitle him to belief on oath. The bill discloses that Mason had testified in behalf of the state concerning appellant’s connection with the alleged manufacture of the whisky in question, and that the appellant proved by the witness Kinser that the general reputation of Mason for truth and veracity in the community in which he resided was bad. Appellant then proposed to prove by said Kinser that the general reputation of Mason was such as would not entitle him to belief on oath, which testimony the court excluded. We are of the opinion that the court was in error. In Douglass v. State, 98 S. W. 840, this court, through Judge Brooks, held that the trial court was in error in refusing to permit the appellant to propound to the witness Roberts, after he had testified that the general reputation of the witness Davis was bad, and have said witness Roberts answer the following question:

“From the reputation of the prosecuting witness, Willie Davis, in the community in which he resides, for truth and veracity, now state to the jury whether or not that reputation is such as that the prosecuting witness- Willie Davis could be believed upon oath, and also state whether or not his general reputation is such as to entitle prosecuting witness Willie Davis to credit upon oath.”

By bill No. 10 appellant complains of the action of the court, after the appellant had shown by the witness Taylor that the general reputation of the state’s witness Mason for truth -and veracity in the community in which he resided was bad, in refusing to permit appellant to show by said witness Taylor that Mason’s reputation was such as would not entitle him to belief on-oath. We think that the court was in error in refusing this evidence and in refusing to permit the witness Taylor to answer said question. What we have said relative to bill No. 8 applies to this bill, also. See Bluitt v. State, 12 Tex. App. 39, 41 Am. Rep. 666; Edgar v. State, 129 S. W. 141, 59 Tex. Cr. R. 495; Douglass v. State, supra; Clemens v. State, 193 S. W. 1066, 81 Tex. Civ. App. 112; Moody v. State, 236 S. W. 740, 90 Tex. Cr. R. 529.

Bills 9 and 11 complain of the refusal of the court to permit the appellant to show by the witnesses' Kinser and Taylor that the, general reputation of the state’s witness Mason was such as would not warrant a jury in believing him on oath. We are of the opinion that there is no error shown in the exclusion of this testimony, because to admit same, in effect, would have permitted the witnesses to give their opinions that the jury should give no consideration to the testimony of said Mason, and would clearly be an invasion upon the rights and prerogatives of the jury.

Bill No. 12 complains of the action of the court in permitting the district attorney to ask the appellant as to why he did not place “old man Dave Campbell” upon the witness stand and prove that he (Campbell) was looking after the appellant’s defense. We think this question was improper, was argumentative, and should not have been permitted.

Bill No. 13 complains of the action of the district attorney, after the appellant had testified that he did hot want any statement from the Campbell boys relative to his trial and did not ask Campbell's father to get it, on cross-examination, in asking appellant:

‘When you turned your case over you turned it over to somebody else to get the evidence and the law, too, did you; you didn’t propose to furnish the evidence in this case, did you?”

There is no answer shown in the bill, but we think it was error for the district attorney to adopt such tactics in cross-examining the appellant.

By bill No. 14 complaint is made to the action of the court in permitting the state’s witness Mrs. Clara Campbell to testify to a transaction which took place about a year before the offense in question, to the effect that she armed herself one night with a pistol and went out to look for her boys and met the appellant in his ear, whereupon she demanded of him to know where her boys were, to which he replied that he would not give her the information, as it would get the hoys in trouble. The witness further testified that she observed at said time that there was something the matter with appellant, from the way he was leaning on the steering wheel and sitting in the car, and she further testified that she asked appellant what he would do if her husband was leading off his (appellant’s) little children. Appellant objected upon the ground that all of said testimony was immaterial, was an attempt to prove extraneous offense, to the effect that the appellant was drunk', on a public road, and was a lecture given the appellant by said witness. We think this testimony was inadmissible and did not tend in any way to throw light on the issues involved in the instant case, and the court was in error in admitting same.

We also think the testimony of the state’s witness Dave Campbell to the effect that he and the witness Mason were in a car with appellant about the time that Mrs. Campbell testified to the matters complained of in bill No. 14 was inadmissible and was an attempt to impeach -the appellant on an immaterial matter.

The appellant lodges an exception to the court’s charge on alibi, because the same, as given, is in a negative manner and does not properly cover this issue raised in his defense. In view of another trial, we suggest that the court charge fully the law on alibi, in lieu of the charge given.

There are other matters raised in the record, but, since they are not likely to occur upon another trial, we do not deem it necessary to discuss them in this opinion.

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

PER .CURIAM.

The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.  