
    SULLIVAN v. STATE.
    (No. 9203.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    1. Criminal law &wkey;>l 186(4) — That charge is not as specific as it might be held not ground for reversal.
    That charge is subject to criticism is not as specific as it might be held not ground for reversal, under Vernon’s Ann. Code Cr. Proc. '1916, art. 743, in the absence of a showing of injury to accused.
    2. Criminal law <&wkey;706 — Attempt of prosecution to show by wife of incompetent witness what latter would have testified to held prejudicial erroi*.
    Attempt of prosecution to show by wife of incompetent witness what latter would have testified to, had his testimony not been excluded by reason of accused’s objection thereto, held prejudicial error, especially in view of remarks of prosecution and judge that the introduction of such testimony could have been waived by accused.
    Commissioners’ Decision.
    Appeal from District Court, Cass County; Hugh Carney, Judge. . ,
    Joe Sullivan was convicted of burglary» and he appeals.
    Reversed and remanded.
    
      H. A. O’Neal, of Atlanta, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted, tried, and convicted in the district court of Cass county for burglary, and his punishment assessed at five years in the penitentiary.

Appellant complains in bill of exceptions No. 2 to the court’s charge on accomplices. While said charge is not as specific as it should be, and upon another trial of this case should be drawn so as to eliminate any objection thereto, yet under article 743, Vernon’s Ann. .Code Cr. Proc. 1916, we would be unauthorized to reverse this case on the court’s charge, unless it was shown from the entire record that same was calculated to injure the rights of the defendant, which in this instance we are of the opinion that no such prejudicial error is shown.

. There is also complaint urged in this court as to the sufficiency of the corroboration of the accomplice, and, in fact, the sufficiency of all the testimony to warrant a conviction in this case; but, owing to the disposition we have made of the case, it is not necessary for -us to discuss this question at this time.

In bill of exceptions No. 1, complaint is made to the action of the district attorney in interrogating the state’s witness Mrs. Mary Brannon, and statements of the district attorney and the court pertaining thereto. The district attorney introduced for the state Flint Brannon evidently for the purpose of attempting to prove the defendant’s connection with the alleged offense, and, upon objection of appellant and proof that he was an ex-convict, he was stood aside. Then the district attorney placed the said witness’ wife upon the stand and attempted by her to supply the desired -evidence of said ex-convict, to which testimony the record discloses the appellant through his counsel objected, and the district attorney remarked in the presence of the jury, “Yes, of course, it can be waived,” to which remark of the district attorney the court replied in the presence of the jury. “Yes, of course, it can be waived,” to all of which the record discloses the appellant excepted. This bill discloses that, prior to the above and foregoing matters complained of, the state had placed upon the stand one Flint Brannon, husband of Mary Brannon, and, proposed- to use him as a witness in its behalf relative to the burglary in question against the appellant, and upon the objection of the appellant through his counsel, and showing that said Flint Brannon was an ex-convict, the court refused to permit him to testify.

It is contended by the appellant that the actions of the district attorney in asking said questions and having the said witness Mrs. Mary Brannon to make such answers was nothing more nor less than a reproduction of the excluded testimony of the said convict witness, which was greatly aggravated by the district attorney and the court both stating and agreeing that it was such matter .as could be waived by the appellant’s counsel. We are of the opinion that said contentions made by the appellant, and the objections urged, are well taken. And it should not be allowed in any court of justice to permit the state in said manner to supply the testimony of an incompetent witness, and then in addition thereto take the position before the jury that the matter could be waived and in effect impressing the jury that the appellant’s counsel by objection was improperly withholding evidence from the jury which they were entitled to.

Unquestionably, under the law, the proposed witness Flint Brannon was not qualified to testify, and the appellant’s counsel unquestionably had the right to urge that objection, and we think it was highly prejudicial to the rights of the defendant for the state to have attempted, in the manner it did in this instance, to show to the jury what the incompetent witness would have testified to through his wife, and then for the court and the district attorney to inform the jury that it was a matter that could be waived. There is no question but what it could be waived, as well as nearly any other procedure in .a felony case except a triai by a jury, yet the appellant had the lawful right to object to it without jeopardizing the rights of his client in any manner, and he not only had such lawful right, but it was his sworn duty to protect his client’s rights in such instance and urge such objections, and we believe the action of the court and -district attorney were clearly erroneous in this particular. We are cited by the appellant to Rosa v. State, 86 Tex. Cr. R. 646, 218 S. W. 1056, and Ballard v. State, 97 Tex. Cr. R. 455, 262 S. W. 85, both of which we think are in point, as well as many other cases that could be cited in support thereof.

In the Ballard Case, supra, by Presiding Judge Morrow, in discussing the actions of the district attorney in stating what he could prove by a witness, if the appellant’s counsel would agree, cites Branch’s Ann. P. C. § 364, as follows:

“It is improper for the state’s counsel to get before the jury in argument a fact which he would not be entitled to prove and the effect of which is damaging to defendant.”

And; in citing Stephens Case (20 Tex. App. 255), quotes as follows:

“It is improper for state’s counsel in- arguing the ease to the jury to state what he could have proved had not the-defendant objected” — - citing many authorities on said proposition and in said case.

We believe that the 'ease under discussion by Presiding Judge Morrow was not as damaging to the defendant as the instant case.

Eor the reasons aboye mentioned, we are of the opinion that the judgment of the trial court should be reversed. x

Reversed and remanded.

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