
    SMITH v. STATE.
    (No. 8036.)
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1925.)
    Criminal law <$=>5071/2—Exclusion of witness’ testimony, without proof in support of state’s objection that witness was charged with same offense, held reversible error.
    Exclusion of witness’ testimony, without proof in support of state’s objection that witness was charged- with same offense, held reversible error, where testimony excluded would have been relevant.
    Appeal from District Court, Lee County; R. J. Alexander, Judge.
    William Smith was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    A. M'. Felts, of Elgin, and E. T. Simmang, of Giddings, 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 copvicted in the district court of Lee county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There are 13 bills of exception in the. record, each of which has been considered by us, and in none of which do we find error except as herein noted. Appellant offered as a witness'one Odes Scott.’ The state objected to the witness testifying, upon the ground that he was indicted for the same offense for which appellant was on trial. The bill of exceptions shows that no proof was offered of the fact that the witness was so indicted, nor was there an' admission or agreement that such was the fact. The court qualifies the bill by saying that the witness had a case pending on the dockets of his court charging him with the same offense, and that all the evidence introduced in the case on trial showed Scott to be present at the transaction complained of, and engaged in the manufacture of the whisky at the time and place alleged in this case.

With the utmost respect for the learned trial judge, we observe that the question of .whether the witness was charged in the indictment pending on the docket of the court below, with the same pífense as that charged against appellant, was a question of fact, and in the absence of proof offered before the court supporting the conclusion that the acts, transactions, and offenses w.ere identical, we are unable to perceive how the court could know the fact of such identity. If there was such proof before the court, it should have been so set out in the record as that it could have been brought before this court, and we could have determined its sufficiency. The fact could not have been demonstrated merely by an inspection of the indictment, if any, on file charging the witness. That the offense set out in such ' indictment was of the same character and averred the same date as that charged against this appellant, would, be but a circumstance to be considered in connection with others showing the identity of the offenses. We know of no procedure, relative to the procuring of an indictment, in which the district judge participates, from which he could know as a matter of fact that the act and offense charged against the witness and that charged against appellant were the same. We are compelled then to conclude that the statement in the qualification of the court below is not such as to dispense with the necessity for some proof of the ground of objection made by the state. The matter is not of first impression. In Deatherage v. State, 91 Tex. Cr. R. 181, 237 S. W. 1111, we held adverse to the state’s contention upon the authorities cited. The matter has recently been before the court in West v. State (Tex. Cr. App.) 267 S. W. 731, opinion handed down January 7, 1925. There is no question but that the testimony of the witness, if allowed, would have been material.

Being of opinion that sufficient showing was not made of the truth of the objection made by the state to the introduction of said witness, and that the rejection of his testimony tinder the circumstances was erroneous, the judgment will be reversed and t'he cause remanded. 
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