The following brief of appellant's counsel so satisfactorily discussed the issues presented by the record it is adopted as the opinion of the court:
"Appellant was indicted and convicted under a plea of not guilty of the offense of unlawfully carrying a pistol on and about his person, and his punishment assessed at a fine of $200 and a term of ninety days in the county jail.
"1. The bills of exceptions are drawn so as to show the charge, issues and testimony, the contentions of the respective parties, and in themselves contain all that is necessary to manifest the supposed errors. This practice is to be commended, as it saves this court the labor of going through a statement of facts, and such practice has often been recommended by this court. With bills of exceptions so drawn there is no necessity for a statement of facts, and the exact questions presented are thus squarely presented, and therefore must be squarely met and decided.
"2. Bills Nos. 1 and 2 may be considered together. By these bills it is shown that under the plea of not guilty to the charge of unlawfully carrying a pistol on and about his person, the State's evidence is sufficient to support the verdict, and that appellant's testimony, if believed, is sufficient to entitle him to an acquittal. In *Page 595 brief, as shown by the bills, the issue was simply whether appellant had the pistol at the time testified to by the State's witnesses. There was a sharp conflict in the testimony, and the lines were closely drawn as to whether appellant was the person who had the pistol at the time testified to by the State's witnesses. It was shown that the pistol was drawn in a house of prostitution, and the question was asked by State's counsel of appellant, while a witness, `You were just married about a year?' (bill No. 1). State's counsel also asked appellant, `Wasn't you arrested once and convicted for beating up a woman?' (bill No. 2). In view of the severe penalty inflicted upon appellant, these questions, although not answered, were calculated to, and in the light of the verdict, probably did prejudice the appellant before the jury, and produce a verdict much higher than the minimum penalty. The jury were apt to conclude, and it is the only natural inference, that the State's counsel would not have asked these questions, especially in the form as asked, unless he had knowledge that such was the case, and thus by inference these illegitimate and extraneous matters were gotten before the jury to the prejudice of appellant, and it is impossible to say that these matters may not have influenced the jury to inflict more than the minimum penalty, if they did not bring about the conviction itself.
"The issue was simply whether the appellant carried the pistol at the time, and these outside matters, which were only calculated to prejudice the appellant, should not have been thus attempted to be gotten before the jury.
"In view of the heavy penalty inflicted, these matters, in common fairness, demand a reversal. Campbell v. State,62 Tex. Crim. 561, 138 S.W. Rep., 607; Tijerina v. State, 74 S.W. Rep., 913, 45 Tex.Crim. Rep.; Nix v. State, 74 S.W. Rep., 764; Wyatt v. State, 58 Tex.Crim. Rep.; Williford v. State; 36 Tex.Crim. Rep..
"3. Bills Nos. 3 and 4 also show the issues, pleas and contentions of the parties, and that there was sharp conflict in the testimony as to whether appellant was the person who had the pistol. In this state of the case, the bills, fairly construed, show that State's counsel, for the purpose of accounting for the absence of a State witness, F.R Schultz, and to account for not putting him on the stand as a witness, proved that said F.R. Schultz, who was shown by other witnesses to have been present at the house of prostitution, was absent from the State at the time of the trial, as shown by a letter. In a proper case this testimony is admissible to account for the absence of a witness, but it must not be used to the detriment of a defendant unless the testimony would show that defendant had something to do with keeping the State's witness away. Appellant was not responsible for the absence of the witness, and the State was not entitled in this way to strengthen by inference the State's case, and there being a sharp conflict in the testimony, this requires a reversal. Appellant *Page 596 is not required to present this error in the motion for new trial when he preserved it by bill of exceptions. Tubb v. State,55 Tex. Crim. 606; Askew v. State, 127 S.W. Rep., 1037 (59 Tex. Crim. 152, 54 Tex.Crim. Rep.); Clifton v. State, 46 Tex.Crim. Rep.; Hardin v. State, 55 Tex. Crim. 631.
Respectfully submitted, E.T. Branch,
Attorney for Appellant."
The judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING. March 20, 1912.