
    RENFRO v. STATE.
    (No. 9394.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.)
    1. Witnesses <&wkey;>379(9) — Exclusion of evidence offered as predicate for impeaching witness held reversible error.
    Where witness testified that he bought whisky from accused at accused’s home, about the 9th day of September, but was not definite as to the day of the month, question to witness, to lay predicate for impeaching him, whether he had not, in testifying before grand jury, fixed the date of the alleged offense definitely as the 9th day of September, was improperly excluded, on ground that the question called for an inhibited inquiry into the proceedings of the grand jury.
    2. Criminal law &wkey;>775(2) — Refusal to give requested instruction on theory of alibi held error.
    In prosecution for selling liquor, refusal to give requested instruction on the theory of alibi held error, in view of evidence.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Van Renfro was convicted of unlawfully selling intoxicating liquor, and be appeals.
    Reversed and remanded.
    S. F. I-Iill and Cade Bethea, both of Livingston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of ■Tyler, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years.

The witness Gilbert testified that he purchased a quart of whisky from the appellant. He claimed that the transaction occurred at the home of appellant about 5 o’clock in the afternoon on Tuesday, about the 9th of September. He was not definite concerning the day of the month, but was certain as to the other particulars.

Appellant introduced testimony to the effect that on Monday, Tuesday, and Wednesday of September, being the 8th, 9th, and 10th of that mouth, he was not at his home, but was at another place, some 25 or 30 miles distant. He sought to lay a predicate for the impeachment of Gilbert by asking him if it was not a fact that in his testimony before the grand jury he had fixed the date of the alleged offense definitely as the 9th of September. Upon the objection of the state that the question called for an inhibited inquiry into the proceedings of the grand jury, the predicate for the impeaching testimony was excluded. In this respect, we are of the opinion that the learned trial judge was in error. The ruling was in accord with the Ruby Case, 9 Tex. App. 353. That ease, however, was overruled in Clanton v. State, 13 Tex. App. 139 (see pages 153 and 154). Since that time the ruling in Clanton’s Case, supra, has been uniformly given adherence by this court. See Scott v. State, 23 Tex. App. 565, 5 S. W. 142; Morris v. State, 84 Tex. Cr. R. 107, 206 S. W. 82; Thomas v. State, 35 Tex. Cr. R. 180, 32 S. W. 771; Link v. State, 73 Tex. Cr. R. 94, 164 S. W. 987; Padron v. State, 41 Tex. Cr. R. 549, 55 S. W. 827; Brown v. State, 42 Tex. Cr. R. 176, 58 S. W. 133; and numerous other cases listed in Branch’s Ann. Tex. P. C. §§ 177 and 179.

Appellant sought, in an appropriate manner, to have the jury instructed upon the theory of alibi. We think the record does not warrant the refusal to comply with this request. The testimony was direct and definite to the point that the appellant was not at his home on the 8th, 9th, and 10th of September. The state’s witness fixed the date as Tuesday, about the 9th of September. It is not believed that the cogent evidence against the theory of alibi was such as to preclude the necessity of a charge upon that subject. See McGrew v. State, 10 Tex. App. 539; Long v. State, 11 Tex. App. 387; Conway v. State, 33 Tes. Cr. R. 330, 26 S. W. 401; and numerous other precedents collated in Branch’s Ann. Tex. P. C. § 55.

For the reasons stated, the judgment is reversed, and the cause remanded. 
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