269 S.W. 438


HAGGARD
v.
STATE.


(No. 8867.)


Court of Criminal Appeals of Texas.


February 25, 1925.

        Appeal from District Court, Freestone County; J. R. Bell, Judge.

        Jake Haggard was convicted of unlawful transportation of intoxicating liquor, and he 
appeals. Reversed and remanded.

        O. F. Watkins, of Mexia, and Levi Herring, of Fairfield, for appellant.

        Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, 
for the State.

        MORROW, P. J.

        The offense is the unlawful transportation of intoxicating liquor; punishment fixed at 
confinement in the penitentiary for one year.

        According to the state's witness Mannahan, a deputy sheriff, he saw the appellant 
riding horseback in his field about 300 yards from his dwelling house. Upon his arrival at 
the house the officer found a half-gallon fruit jar of whisky wrapped up in the appellant's 
slicker and tied to his saddle. The officer said to him: "What is that on your saddle?" 
Appellant replied: "Whisky; it is mine."

        Appellant introduced testimony to the effect that his reputation as a law-abiding 
citizen was good; also his reputation for truth and veracity. He was a farmer by 
occupation and had been a citizen of the county for some 40 years. He testified that his 
wife had been sick for a number of years and that he bought the whisky for her; that the 
purchase was made on the 10th of January; that Dr. Goolsby had prescribed whisky for 
his wife. According to the appellant, the purchase was made in his field from a Mexican. 
He testified that the whisky was not bought for the purpose of sale or with the intention 
of violating the law in any respect.

        Appellant's wife testified that she was 53 years of age and had been married to the 
appellant for 33 years; that at the time of the alleged offense her health was bad; that she 
was sick most of the time; that Dr. Goolsby, the family physician, had prescribed whisky 
for her. She was suffering at the time for a change of life and had requested the appellant 
to get whisky for her; that she used whisky mixed with Black Draught and Liver 
Regulator; that she had been in the habit of using it, whenever she could get it, for a long 
time.

        Some testimony was introduced tending to corroborate the appellant's theory that he 
got the whisky from a Mexican on his farm.

        Dr. Goolsby, a licensed physician, testified that he had prescribed whisky on various 
occasions for the wife of the appellant; that he began prescribing whisky for her some 
years before and advised her to keep whisky on hand; that he kept a record of the 
prescriptions written, but, not knowing that he would be called upon for it, he did not 
have the record with him. He had also prescribed

Page 439

whisky a short time before the date of the alleged offense.

        Touching the testimony of Dr. Goolsby, the district attorney, in his argument, said:

        "Gentlemen of the jury: Who is the defendant's witness? Dr. Goolsby? I know him 
and have no confidence in his testimony. Have had many cases in this district for the state 
and I always find said witness testifying in prohibition cases for the defendant about 
prescriptions and excuses to turn the defendant loose."

        Prompt exception was made to these remarks, and the jury was verbally instructed to 
disregard them. The principal defense urged by the appellant was that the whisky was in 
his possession for medicinal purposes. The main witness upon this issue, aside from the 
appellant and his wife, was Dr. Goolsby. The remarks of the prosecuting attorney appear 
to be in the nature of testimony giving his judgment as to the reputation of the witness for 
truth and veracity, in effect declaring that it was the custom of the witness to give false 
testimony in the interest of persons charged with violations of the law prohibiting the 
liquor traffic. These remarks apparently abandoned the realm of argument and took their 
place in the domain of evidence. To comment upon the evidence before the jury, to draw 
from it inferences, and to embellish it with illustrations, is the province of counsel, but 
the evidence must come from the witnesses who, under the sanction of an oath, and under 
the supervision of the court, relate the facts within their knowledge. Mr. Branch, in his 
Ann. Tex. P. C., summarizing the many decisions of this court collated by him, says:

        "The unsworn statement of state's counsel to the jury of a material fact adverse to 
defendant which was not put in evidence during the trial will require the judgment of 
conviction to be set aside."

        See Branch's Ann. Tex. P. C. § 364, and numerous cases there collated; also 
Stanchel v. State, 89 Tex. Cr. R. 361, 231 S. W. 120; Brister v. State, 97 Tex. Cr. R. 398, 
262 S. W. 82.

        The judgment is reversed, and the cause remanded.