laration, to be admissible, must have been voluntarily made under the sense of impending death: Craven v. State, 49 Tex. Cr. 78, 122 Am. St. Rep. 799; Gipe v. State, 165 Ind. 433, 112 Am. St. Rep. 238; Sims v. State, 139 Ala. 74, 101 Am. St. Rep. 17.

As to the Constitutional Right to Counsel of a Person on Trial for crime, see State v. Collins, 104 La. 629, 81 Am. St. Rep. 150; MeDonald v. Commonwealth, 173 Mass. 322, 73 Am. St. Rep. 293; Valle v. State, 9 Tex. App. 57, 35 Am. Rep. 719.

BOGUS v. STATE.

[55 Tex. Cr. 126, 114 S. W. 823.]

CRIMINAL TRIAL-Evidence of Former Offense. On the cross-examination of the defendant in a prosecution for aggravated assault, it is improper, for the purpose of affecting his credibility, to inquire into crimes committed by him fifteen years before; they are too remote for this purpose. (pp. 804, 805.)

CRIMINAL LAW-Reference to Prior Crime in Instruction and Argument.—Where, in a prosecution for aggravated assault, the state has erroneously been permitted to inquire into other crimes committed by the accused fifteen years before, and the court singles out his prior conviction in charging the jury, and the state's attorney refers to it in severe terms, reversible error is committed. (p. 805.)

No brief on file for the appellant.

F. J. McCord, assistant attorney general, for the state.

127 RAMSEY, J. While the appellant was on the stand testifying in his own behalf, the state, on cross-examination, over the objections of the appellant, asked the appellant if he had not been in the penitentiary, and if he had not been sent to the penitentiary some fifteen years before for manslaughter. The court in his charge to the jury instructed them as follows: "Evidence introduced before you to show that defendant had been convicted and served a term in the state penitentiary was admitted for the purpose of affecting defendant's credibility as a witness, and you will consider it for no other purpose. The county attorney in his closing argument to the jury referred to the fact that the evidence showed that appellant had been in the penitentiary, and that he was sent there upon a charge of murder; that he was tried by a jury and convicted of the offense of manslaughter, and he plead that he was not guilty, and said the trouble came about with four or five parties with himself scrambling over a Winchester, and in the scramble for the Winchester it was fired off and a man was killed, and that he was tried for murder in that cause and convicted of manslaughter. "Now, gentlemen, do you believe he told the truth in that statement to you about

how he went to the penitentiary? Do you believe he told the truth when he made that statement? I am allowed by the court to argue this phase of the testimony to you on the question of his credibility as a witness in this case." We are of opinion that this testimony was too remote. The state ought not to be permitted to inquire into crimes or any other wrong that a man may have committed fifteen years before. This question has been so often decided by this court that it is not necessary to cite authorities. It is sufficient to say that if this testimony was not admissible, the introduction of the same by the state, the singling of this fact out by the court and charging upon it, the severe allusion to it by the state's attorney and his arraignment 128 of the appellant, charging him with telling a falsehood about the facts of his conviction in said case, was not only irrelevant, but highly prejudicial to the rights of the defendant, for which this case should be reversed.

We find no other error in the record. We think the charge of the court presented all the issues of the case, and also in an affirmative way presented the defense to the jury, and for the error alone of admitting the testimony of the previous conviction of the appellant the case should be reversed and remanded, and it is so ordered.

The Previous Conviction of the Accused of an Offense may, within certain limits, be shown and considered as affecting his credibility as a witness in his own behalf: Thornton v. State, 117 Wis. 338, 98 Am. St. Rep. 924; Hudson v. State, 41 Tex. Cr. 453, 96 Am. St. Rep. 789; Clemmons v. State, 39 Tex. Cr. 279, 73 Am. St. Rep. 923. See, however, Commonwealth v. Walsh, 196 Mass. 369, 124 Am. St. Rep. 559; Matzenbaugh v. People, 194 Ill. 108, 88 Am. St. Rep. 134; Smith v. State, 129 Ala. 89, 87 Am. St. Rep. 47; State v. Abley, 109 Iowa, 61, 77 Am. St. Rep. 520.

Evidence of Other Crimes in Criminal Prosecutions is the subject of a note to Sykes v. State, 105 Am. St. Rep. 976.

The Cross-examination of the Accused in a Criminal Case, when he has offered himself as a witness, is considered in the notes to State v. Duncan, 38 Am. St. Rep. 895; Evans v. O'Connor, 75 Am. St. Rep. 318.

BEARD v. STATE.

[55 Tex. Cr. 154, 115 S. W. 592.]

CONTINUANCE-Right to in Case of Absent Witnesses.— Where it appears on a trial for violating the local option law that the testimony of absent witnesses would corroborate the defendant's theory as testified to by himself, and would otherwise strengthen his defense, an application for a continuance should be granted. (p. 808.)

LOCAL OPTION-Place of Sale of Liquors.—Where, in a prosecution for violating a local option law, the evidence raises the is sue as to whether the sale was in the county of the prosecution, the jury should be instructed that if the money was accepted in the county of the prosecution and paid for the liquor in another county, and that the liquor was conveyed to the county of the prosecution by a person not under the control or as agent of the defendant, then he is not responsible for the delivery of the liquor in the county of the prosecution, and the sale would be in the other county. (pp. 808, 809.)

Joe W. Thomas, for the appellant.

F. J. McCord, assistant attorney general, for the state.

155 DAVIDSON, P. J. Appellant was convicted of violating the local option law, his punishment being assessed at a fine of twenty-five dollars and twenty days' imprisonment in the county jail.

George Day, witness for the state, testified that he lived in the town of Warren, Tyler county; that he hailed and stopped appellant, who was riding along the street horseback; that he walked up to where he was and gave him a dollar, with the request that he get for the witness a bottle of whisky down at Village Mills and send it to him. Appellant took the dollar. Later on, about midnight, the witness received a bottle of whisky. J. B. Owens (the delivery wagon driver for Mr. Williford) brought the whisky to the witness. This witness says appellant was not at the delivery wagon; he was horseback. That he did not know from whom he (appellant) got the whisky, but he bought it from someone in Hardin county. where saloons are run. He further testified that he intended that appellant should buy the whisky down there at a saloon; that is, in Hardin county, but he does not know from whom whisky was purchased. That appellant had no whisky, so far as the witness knew. That Owens worked for Mr. Williford and lived at Warren. He further states: "I told defendant to buy me a bottle of whisky and send it to me. I knew he had to buy it in Hardin county." Local option was in force in Tyler county, where this prosecution was had, but was not in force in Hardin county, at Village Mills, where the whisky

was purchased. John Brown testified that he was working in appellant's saloon at Village Mills. The arrangement between them in regard to the management of the saloon he details as follows: "The way I run the saloon was this way: Defendant checked over or inventoried all the goods, whisky, beer, etc., in the saloon. This was all charged to me. I had to account to him for that much money; that is, the value of the goods so inventoried. 156 Defendant had nothing whatever to do with the whisky, etc., after they were inventoried and turned over to me. He never sold any whisky to anyone. He bought and paid for over the counter all the beer or other drinks that he drank. He bought his drinks and paid for them to me just the same as any other customer. Defendant had no control, possession or interest in the goods after turned over to me, and he had no authority to sell same. He never did sell a bottle of whisky at the saloon that I know about. I alone sold the whisky. I do not remember about defendant giving me the dollar for George Day at any particular time, but do remember about that time, that is, June 15, 1907, when J. B. Owens came down in the hack of Mr. Williford's, that several dollars were put on the counter for whisky; don't know whether defendant or someone else put them there, and that defendant gave me a dollar that Mr. Day or someone sent for a bottle of whisky. I accepted the dollar and sold the whisky and sent it to Warren to the party by J. B. Owens. Defendant told me who wanted the whisky. I think it was Day. I know it was about 12 o'clock at night, for I was rushing the boys to get out that I may close before twelve.”

On cross-examination he said, in regard to the sales and work of the saloon business that he paid himself first, and then paid appellant the balance taken in; that is, the amount charged. The amount was charged to this witness when the goods came in, and he had to pay appellant the value of the goods so turned over to him. He had full control of all the goods in the saloon, and sold all the whisky that was taken from the saloon and was responsible for the goods to Beard. That appellant sold no whisky. Appellant testified in his own behalf that he never sold any whisky at that time; never would sell whisky behind the bar, and the way he did was to measure up a barrel of whisky in quarts, and other bottles, and then check the amount to the man working for him, and he sold and paid the money over to him, appellant. Appellant, in fact, owned the saloon under these terms and conditions.

In regard to the facts connected immediately with the case he testified as follows: "I saw George Day in Warren about

the 15th day of June, 1907. He gave me a dollar to buy for him a bottle of whisky. I gave it to Mr. John Brown, who has just testified, or Dan Stewart. I believe it was Brown, but am not sure. At any rate J. B. Owens came down in Williford's delivery wagon and carried the whisky to Warren. The boys at Warren sent the wagon down. I had nothing to do with the wagon. The boys sent it for the whisky. There were several parties who sent down by Owens for whisky that night. I think the wagon left Village Mills about 12 o'clock that night. I told Brown or Dan Stewart which party was at the time running the saloon, who sent the dollar to buy the whisky. Brown or Stewart sold the whisky and sent it up by Owens. Brown or Stewart delivered the whisky to Owens for Day. I did not sell the whisky to Day. Brown or Stewart sold the whisky 157 to George Day. I never sold George Day a bottle of whisky. I did not intend to make a sale of whisky in Warren, Tyler county, Texas." He further states, "I never meant to sell a bottle of whisky to George Day at any time. I could not sell the whisky, for it was under the exclusive control of John Brown, Dan Stewart, or whoever was in charge. I had no right to sell whisky, and could not have done so."

Brown and Stewart were the employés of appellant at different times, and the testimony seems to be just a little uncertain as to whether Brown or Stewart was in charge on the particular occasion. These witnesses make it appear that IIamulton and Peters were present at the time the whisky was sold, as was J. B. Owens.

Continuance was sought for these three witnesses and should have been granted. They would have corroborated appellant's theory as testified by himself and Brown had they been present; and Owens would have testified as alleged in the application for continuance that he was running the delivery wagon for Williford, and went down to Village Mills in Hardin county at the suggestion of these different people to bring whisky up for them from Village Mills into Warren, Tyler county. A continuance in this case should have been granted, and it was error to refuse it.

There are some charges requested also that should have been given submitting pertinently the law to the facts in regard to the question of sale. The jury should, we think, have been charged to the effect that if the money was accepted in Tyler county and paid for the whisky in Hardin county, and that the whisky was conveyed to Tyler county by a party not under the control or as agent of appellant,