
    CUPIT v. STATE.
    (No. 9823.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.)
    1. Criminal law <&wkey;402( I)— Evidence of contents of statement inadmissible, in absence of accounting for absence of statement or proof of its loss.
    In prosecution for carrying a pistol, admission of testimony of justice of the peace-relative to taking statement from a woman that accused was drunk and carrying a pistol held, error, in absence of accounting for absence of statement or any proof of its loss or destruction.
    2. Witnesses <&wkey;4l4(2) — Statement made by witness before trial cannot be introduced, in absence of effort to impeach her at trial.
    Where there was no evidence of effort to impeach state witness, state could not introduce statement made by her previous to trial before justice of peace for purpose of bolstering up her testimony.
    Appeal from San Augustine County Court; W. C. Cary, Judge.
    Dubose Cupit was convicted' of the offense of carrying a pistol, and he appeals.
    Reversed and remanded.
    W. T. Davis, of San Augustine, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler,.for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of San Augustine county of the offense of carrying a pistol, and his punishment fixed at a fine of $100.

Appellant did not' deny carrying the pistol, hut sought to justify himself upon the ground that a justice of the peace issued a special warrant and sent it to him directing him to arrest the boy of a Mr. Gray, the only offense of the boy being that he had run away from his father.

The state introduced Mrs. Eranklin, who testified that on the occasion in question appellant came to her house, and that he had a pistol, was drunk, etc. After the introduction of the testimony for the defense, the state introduced a justice of the peace who testified that he went with appellant to Mrs. Franklin’s house and took from her a written statement concerning the • transaction. Over objection, he testified that Mrs. Franklin made a written statement at said time in which she said that appellant' came to her house drunk, got down, and ca^ne in with a pistol in his hand. Appellant’s objection was that the written statement was the best evidenée. The absence of said statement was in no way accounted for, nor was there any proof of its loss, destruction, etc. The objection was well taken. We are unable to apprise the extent of the injurious effect upon the minds of the jury of the introduction of this illegal testimony. The materiality of the testimony arose from the issue made, that appellant was not in the discharge of the special duty imposed.

There appears in the record no evidence of any effort on the part of appellant to impeach Mrs. Franklin. In the absence of some such effort, the state could not introduce the statement made by her to the justice of the peace, even if it has been present, for the purpose of bolstering up the testimony of the witness. If appellant had in any way sought to impeach M¿-s. Franklin regarding it, her statement so made might be admissible for the purpose of corroborating her testimony.

For the error mentioned, the judgment will be reversed and the cause remanded. 
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