The record having been perfected, the appeal is reinstated and the case considered on its merits.
The proof on the part of the State was to the effect that appellant and his wife, Willie Carr, had three small children, and that in August, 1932, appellant left his family and thereafter failed to support his children. Appellant testified that he had been unable to secure work, and, further, that during most of the time he was away from his family, he had been ill and unable to work. *Page 326
It is shown in bills of exception 1 and 2 that the State proved, over appellant's objection, that the district judge and the district attorney told appellant that if he would support his children he would not be prosecuted, and that appellant promised that he would send his children two dollars a week. This occurred after the indictment had been returned. In bill of exception No. 7 it appears that, in his closing argument, the district attorney used language as follows: "We didn't want to send this boy (referring to appellant) to the penitentiary. The district judge and I told him that if he would ever pay as much as two dollars a week we wouldn't do so and wouldn't try this case and would dismiss it, but gentlemen he wouldn't do that." The court overruled appellant's objection to the argument. We think the three bills of exception reflect reversible error. Appellant was not being prosecuted for failure to keep his promise to the district judge and the district attorney. The argument of the district attorney was susceptible of the construction that the district judge desired that appellant be sent to the penitentiary because he had failed to keep his agreement to give his children two dollars a week. We deem the argument improper and obviously hurtful and prejudicial.
We think that upon another trial testimony touching the fact appellant was keeping company with another woman should not be permitted, unless it should be made to appear at least circumstantially that he was spending money on her. One of the bills recites that the State proved that appellant was drunk in San Angelo, and was fined. Appellant testified that he did not buy the whisky and had not paid the fine. Under the circumstances, we are unable to perceive the relevancy of this testimony. We do not predicate a reversal upon the two matters last discussed.
For the error herein first 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.
ON STATE'S MOTION FOR REHEARING.