
    DERRICK v. STATE.
    (No. 4138.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    1. Criminal Law <&wkey;594(3), 600(8) — Continuance — Absent Witnesses.
    It is not error to deny continuance asked on account of absence of witnesses, where one was a fugitive from justice, and the state admitted truth of testimony the others were expected to give.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1332, 1344; Dec. Dig. <i&wkey; 594(3), 600(3).]
    2. Criminal Law <&wkey;857(2) — Trial — Conduct of Jury.
    It is improper, after jury retires, for jurors favoring conviction to say to those favoring acquittal that conviction will stop disturbances in a certain communityj where there was no evidence on that question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2055; Dec. Dig. <&wkey;>S57(2).]
    3. Criminal Law <&wkey;719(l) — Trial — Comments of Counsel.
    It is improper for the prosecuting attorney in argument to say that his only witness had, at the first opportunity and consistently, told the same story, there being no evidence to that effect, since that is supporting a witness as to facts not testified.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1609; Dec. Dig. <S&wkey;719(l).]
    Appeal from Kaufman County Court ; James A. Cooley, Judge.
    Chester Derrick was convicted of violating the local option law, a\id he appeals.
    Reversed and remanded.
    Cosnahan & Ashworth, of Kaufman, for appellant. C. C. -McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

There was no error in overruling the motion for a continuance. As to what it was stated was expected to be proven by two of the witnesses, the state admitted such testimony to be true, and it was so stated to the jury. As to the third witness named in the application, he is shown to be a fugitive from justice.

When the motion for a new trial was heard, one of the jurors testified that he and two others first voted for an acquittalthat he (Juror Lindsey) did not think the evidence sufficient to show the guilt of appellant; that the foreman of the jury, Mr. Liston, said to the jury “that he lived near the defendant, and that the negroes down there were accustomed to raising disturbances, and he thought defendant should be convicted, and that would break it up.” It seems that none of the other jurors were called, and this was all the testimony heard. The matter is hardly presented in a way, as the bill was not filed until after term timé, we would be authorized to reverse the case upon this alone; but, inasmuch as we think there is another ground that will necessitate a reversal of the judgment, we call attention to this matter. It was improper to bring such matters before the jury, when there was no evidence in the case upon which to base such remarks.

The state made its case by one witness alone. The defendant denied making the sale, and other witnesses testified to facts rendering it highly improbable that appellant did make the sale to the prosecuting witness. His reputation as a peaceable, law-abiding citizen was testified to by witnesses. Counsel for the defendant in their argument attacked the credibility of the state’s witness, insisting “that the witness had been broken down and the jury could give no credence to his testimony,” etc. In reply to this the county attorney'said:

“Sam Livingston [the prosecuting witness] on the night he was arrested told the officers that he bought whisky from appellant, and this was his first chance to tell where he got the whisky; the next chance was before the grand jury, and if he had told a different story there do you suppose they would have returned a bill: and the witness here now makes the same statement he made to the officers when arrested.”

In the record there is no evidence as to what the prosecuting witness told the officers the night of his arrest, or that any whisky was found on his person, and no evidence as to what he testified to before the grand jury. This was supporting the witness by matters not testified to on the trial, and should not have been permitted.

The judgment is reversed, and the cause remanded. 
      <@u=>IPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     