A proper recognizance having been entered into, the appeal is reinstated and the case considered on its merits.
Operating under a search warrant, officers discovered in appellant's private residence approximately 15 gallons of whisky. Fourteen gallons were found in the walls between the kitchen and bed room, and several pints were in the kitchen on the floor. Appellant's wife was present when the search was made. Leaving the *Page 234 house, officers met appellant about half a mile up the road. Upon searching his car, they found parts of fruit jar cartons.
It was appellant's theory, given support in the testimony, that he had not been living at home for some time; that the whisky belonged to a man by the name of Gaddis who lived on the place; and that he (appellant) had no interest in the whisky.
Appellant alleged, in his first application for a continuance, that he was unready for trial because of the absence of his wife. It appears from the application that she was unable to attend court on account of illness, although she had been duly served with a subpoena. It was averred in the application that the absent witness would testify, if present, that prior to the time of the raid she had filed suit for divorce against her husband; that some time prior to the raid appellant had removed to the city of Dallas where he operated a cafe; that up until the time of the raid appellant had come home only a few times for the purpose of visiting his children; that one Grip Gaddis remained on the place and lived there during the absence of appellant, and was living in the house at the time of the raid. The affidavit of the witness showing that she would testify to the facts averred in the application was attached to the motion for a new trial.
The absent testimony was material as tending to show that Gaddis and not appellant was in possession of the whisky discovered by the officers. The court instructed the jury to acquit appellant if some one else placed the whisky in the house without the knowledge and consent of appellant. The fact that appellant and his wife were not living together in the house; that she had filed suit for divorce against him; that he had been living at Dallas for several weeks prior to the raid; and that Gaddis was living on the place, would tend to show that appellant was not in possession of the whisky. We are of the opinion that the learned trial judge fell into error in overruling the motion for a new trial in so far as it was based on the refusal to continue the case.
In his argument, the district attorney used language as follows:
"How that whisky got in the house and whose was it is not explained to you. Don't you know if you had been arrested like Dock McKee was for whisky being in your house that you would have had your wife here to testify in your behalf and explain how it got there and who it belonged to even though she was sick and you had to get feather beds and pillows and prop her up and bring her into court on a stretcher to testify; wouldn't your wife *Page 235 have made a sacrifice though sick to come into court and explain how this whisky got in the house?"
Appellant objected to the argument. The trial court certifies to the following:
"There was attached to defendant's first application for a continuance a doctor's certificate dated February 11, 1930, the very day of the trial that the defendant's wife was sick in bed, not able to attend court due to a miscarriage. This showing was before the court but was not before the jury. The only showing before the court and jury was made by the witness Riley who had testified that she was sick and a doctor from Mount Pleasant was waiting on defendant's wife. This argument was highly prejudicial to rights of defendant and uncalled for."
Appellant's application for a continuance had been overruled. It was based on the absence of his wife, who was too ill to attend court. Under such circumstances, the district attorney was not warranted in pointing to the failure of appellant to use his wife as a witness, as a circumstance of guilt. The court certified that the argument was highly prejudicial and uncalled for. We think that it presents reversible error.
For the errors discussed, 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.
HAWKINS, J., absent.
ON MOTION FOR REHEARING.