
    LANHAM v. STATE.
    (No. 8639.)
    (Court of Criminal Appeals of Texas.
    March 4, 1925.)
    1. Criminal law <©=>673(5}, 677 — Failure to limit proof of manufacturing intoxicating liquors to count on which state relied in indictment held erroneous.
    In liquor prosecution, failure to limit or withdraw from jury proof of manufacturing intoxicating liquors at different times and places from count on which state finally elected to try defendant held erroneous, as tending to show that defendant was generally a manufacturer of intoxicating liquors.
    2. Criminal law <©=>673(5) — Error not to limit testimony as to other transaction to purposes for which admitted.
    Generally, where there is danger that testimony of another transaction in evidence than one relied on might cause conviction or might be given unwarranted weight by jury as tending to prove main transaction, failure to limit testimony as to other transaction to purposes for which it was admitted is error.
    3. Criminal law <©=>677 — Refusal to withdraw answer of witness that defendant’s business was making whisky held erroneous.
    Refusal to withdraw witness’ answer in response to question that defendant’s business was making whisky held erroneous, where it appeared that defendant did not know or could not reasonably apprehend what answer of witness would be.
    4. Witnesses <©=373 — Objection to question properly sustainedi, if based on failure to lay insufficient predicate therefor.
    Objection to question asked state’s witness-if he had said a 'short time before trial that he was going to do all he could to send defendant to penitentiary was correctly sustained if based on proposition that no time, place, or persons were named in predicate sought to be laid.
    5. Witnesses <©=>370 (I) — Objection to question improperly sustained, if based on ground that testimony was not material.
    Objection to question asked state’s witness if he had said a short time before trial that he was going to do all he could to send defendant to penitentiary was improperly sustained, if based on ground that such testimony was not material.
    6. Criminal law <©=>730(12) — Statement of counsel in presence of jury held harmful.
    Statement of counsel, based on idea that defendant and his friends were undertaking to intimidate witness and to remove him from presence of court and keep him from testifying when made in presence of jury, held harmful, though court orally instructed jury not to consider statement.
    Appeal from District Court, Bosque County; Irwin T. Ward, Judge.
    P. G. Banham was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    E. T. Adams, of Glen Rose, and Simpson, Moore, Parker, & Rawlings, of Port Worth, for- appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Bosque county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The indictment contained a great many counts, and the state introduced evidence of a large number of transactions, the objections of appellant to which were overruled upon the ground that the state was not compelled to elect until it closed its case. The state finally elected to proceed upon the first count, which charged appellant with manufacturing liquor, and also elected to proceed upon a transaction occurring on August 10, 1923. The state witnesses had testified to a number of occasions on which appellant had manufactured intoxicating liquor at different points in Somervell county.

Appellant presented a special charge, in substance, asking that the jury be told that the evidence of the witnesses Watson and Harris, with reference to having seen him manufacture intoxicating liquor on dates and occasions other than the one relied on by the state in this ease for a conviction, to wit, on or about the 10th day of August, 1923, could not be considered by the jury as a circumstance showing or tending to show that the accused committed the offense on the occasion relied on by the prosecution. This charge was refused, and no charge was. given by the court limiting or attempting to limit or withdraw from the jury the testimony as to other instances of the manufacture of intoxicating liquor at different times and places from that of August 10th. In our opinion this action of the court was erroneous. Manifestly, to prove that appellant had manufactured intoxicating liquor at a number of other times and places than that charged in the indictment would strongly support the proposition in the minds of the jury that he was generally a manufacturer of such liquor. To prove that one charged with burglary or theft had committed a number of other disconnected burglaries and thefts would be manifestly unfair, and would create such feeling and prejudice against the accused as would render it difficult for the jury to give him a fair trial upon the particular act laid as the basis of the prosecution. Generally speaking, where there is danger that testimony of another transaction in evidence than the one relied on might cause conviction, or .might be given unwarranted weight by the jury as tending to prove the main fact or • transaction, it is held error not to limit the testimony as to the other transaction to the purpose for which it was admitted, and in a case such as the one before us, where it was admitted under the hypothesis that it was admissible as supporting' some other count in the indictment, or that the state had not reached the point where it was ready to elect upon a particular transaction, the evidence as to other transactions should be withdrawn or the jury instructed not to consider same as affecting or showing the guilt of the accused in the particular transaction on trial. Taylor v. State, 22 Tex. App. 545, 3 S. W. 753, 58 Am. Rep. 656; Betts v. State, 65 Tex. Cr. R. 358, 144 S. W. 677; Gould v. State, 66 Tex. Cr. R. 421, 147 S. W. 247; Thornley v. State, 36 Tex. Cr. R. 124, 34 S. W. 264, 35 S. W. 981, 61 Am. St. Rep. 836; Bailey v. State, 69 Tex. Cr. R. 474, 155 S. W. 538.

There is a bill of exceptions complaining of the refusal of the trial court to withdraw from the jury the answer of a witness who was asked by the state if he knew what appellant’s business was. The witness answered that appellant’s business was making whisky. It is made to appear that appellant’s attorney did not know or could not reasonably apprehend that this would be the answer of the witness, and, deeming it hurtful and improper, he requested that the answer be withdrawn. In our opinion the answer was improper and should not have been elicited, and the court erre,d in not directing the jury not to consider it. It was quite likely the learned trial judge, and possibly the prosecuting attorney, did not suspect that such answer would be made.

It appears, from bill of exceptions No. 9 that appellant’s attorney asked a state witness if he had said a short time before the trial that he was going to do all he could to send appellant to the penitentiary, or convict him. The court sustained the state’s objection to the question asked by appellant. The ground of the objection is not stated. If it was based on the proposition - that no time, place, or persons were named in the predicate sought to be - laid, the objection was correctly sustained; but, if the objection was sustained upon the ground that such testimony was not material and pertinent, it was erroneous.

Bill of exceptions No. 10 sets out the fact that the state’s attorney asked witness Harris if it was not a fact that, since he had been in attendance upon the court at Meridian and also at Cleburne, he had been threatened that “they were going to file a complaint against you.” This was objected to as immaterial and- as not shedding any light on any issue’ involved and as being too general, and the statement was made by appellant’s counsel that, if the state undertook to show that appellant made any such threats, it would be a different proposition. Thereupon the special prosecuting attorney said:

“If the court please, this witness is a stranger in this country and counsel asked him if he wasn’t brought here out of the jail at Dallas. That is true, and the purpose of these questions is simply to show that it was nothing but a frame-up, and this man was taken out of his own house by a bunch of officers from Dallas, and was denied the right to make bond, and was denied the right of his wife seeing him, and for no other-purpose but to keep him out of this court and from testifying here in this case, and they kept him up there after I asked them to turn him loose to let him come down here, and this thing has been brewing for more than three weeks before this court opened, and this witness has been threatened with that by a bunch' of ’ bootleggers to keep him away from this court.”

Thereupon appellant’s counsel jnoved the court to instruct the jury not to consider the statement of counsel so made in the' presence of the jury, which was done orally, but appellant reserved his bill of exceptions to the making of the statement in the presence of the jury as being calculated to influence and prejudice them against appellant. We ean see no purpose in the making of such statement in the presence of’ the jury, and- are unable to see how it could fail to be hurtful. It was a statement of a group of facts based upon the idea that appellant, or appellant and his friends, were undertaking to intimidate the witness and to remove witness from the presence of the court and keep him from testifying.

For the reasons mentioned, the judgment of the trial court will be reversed and the cause remanded. 
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