The offense is selling intoxicating liquor, the punishment confinement in the penitentiary for one and one-half years.
The state's witness, George Norris, testified that he purchased a quart of choc beer from appellant and that it intoxicated him. Appellant did not testify.
Appellant's first application for a postponement was based on the absence of the Assistant County Attorney, who had been duly summoned as a witness. It was alleged in the application that if present, the witness would testify that the state's witness told him he bought the liquor in question from a negro woman. Such testimony would have been wholly impeaching in its nature. The record shows that no predicate was laid for impeaching Norris. We are constrained to hold that in overruling the application no abuse of discretion on the part of the trial judge is shown. Smith v. State, 272 S.W. 207. *Page 580
In his closing argument the District Attorney used language as follows:
"I know George Norris. I have known him several years and when he told me that he had bought intoxicating liquor from the defendant I believed him and still believe him."
Appellant timely objected to this argument, and the court instructed the jury not to consider it for any purpose. The general reputation of Norris for truth and veracity was placed in issue. Several witnesses testified that Norris' general reputation for truth and veracity was bad. Norris was the only witness who testified to the sale of the liquor. The argument was in effect the unsworn testimony of the District Attorney that the witness' reputation in the respect mentioned was good. Such argument was obviously prejudicial and constituted reversible error.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.
ON MOTION FOR REHEARING.