From bill of exceptions No. 6, which escaped our attention on the original hearing, we learn the following: Upon cross-examination of the appellant, state's counsel propounded this inquiry:
"And the reason these officers came down there and searched your place was because you had been selling whiskey to young boys that come in there and bought it from you, wasn't it?"
Upon receiving a negative reply, the following inquiry was made:
"You know that is the reason they came to your place, because they knew young boys had been coming in there and buying whiskey from you, don't you?" *Page 560
Upon objection by appellant's counsel the answer was excluded and the question was withdrawn. However, exception was reserved to the procedure. Counsel for the state then asked the following question:
"You know as a matter of fact that the mother of one of these boys went in there and complained that you had been selling whiskey to her boy?"
To which the witness answered "No, sir."
Objection was made to this question. We gather from the question and answer record, which the court permitted to go into the bill, that the objection was not sustained. In referring to these matters in his argument, counsel for the state used the following language:
"They say I had no right to ask these questions and that such questions were not based upon any fact. * * * If I were to attempt to state to this jury any facts upon which these questions were based, these attorneys for the defendant would immediately be upon their feet objecting. I cannot tell you any of the facts relating to this case, but I can tell you how these bootleggers run their business. They are not licensed and do not have to pay any tax, but I tell you that they sell whiskey to anybody that wants to buy it. Young boys and girls, or anyone else that wants it."
Appellant insists that tested by the law of circumstantial evidence, the testimony is not sufficient to support the verdict. He adverts to the evidence that there were several other persons connected with the building in which the whiskey was found and contends that each of these had equal opportunity with the appellant to possess the liquor; that there is a lack of evidence to exclude the hypothesis that one of the others and not the appellant was the offender. He also insists, in view of the state of the evidence and taking into account the presumption of innocence, that the fault in the charge which was pointed out in the original opinion cannot be regarded as harmless. We are not prepared to say that the evidence is insufficient but viewing the matter presented by bill of exceptions No. 6, in the light of the whole record, we are of the opinion that a new trial should have been accorded the appellant.
The questions and the comments made thereon, as shown by the bill, were calculated to, and probably did convey to the jury, the idea that the prosecuting officer possessed information, *Page 561 damaging to the appellant, bearing upon the specific issue under consideration and which was excluded from their consideration on account of the appellant's objection.
Nothing is perceived indicating that the questions were propounded with the expectation of an affirmative answer, nor as a predicate for impeachment. If state's counsel had possessed the information implied by his questions and argument, proof of some of it would have been admissible as original testimony. The inquiries seem to have served no purpose other than to put before the jury unsupported matter prejudicial to the appellant. See Lamm v. State, 94 Tex. Crim. 561. The comment seems to offend against the rule often declared by this court which forbids the attorney for the prosecution to refer in argument to proof which could have been made by the state but for the objection of the accused on trial. See Tally v. State, 48 Tex.Crim. Rep.; Askew v. State, 54 Tex.Crim. Rep.; Johnson v. State, 63 Tex. Crim. 50; Harris v. State, 161 S.W. 127; Bradley v. State,162 S.W. 515; Branch's Ann. Tex. P. C., Sed. 364; also Scitern v. State, 87 Tex.Crim. Rep.; Harris v. State, 72 Tex. Crim. 117.
For the reason stated, the appellant's motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.