The opinion
ON MOTION FOR REHEARING BY STATE.
MORROW, Presiding Judge.
To avoid a continuance because of the absence of Doctor Thompson, the state admitted as
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true that whiskey was necessary as a medicine at all times for the defendant and his wife; that it had been prescribed by a physician for the defendant’s wife, and advice given that it be ■kept at all times in the home of the defendant. By making this admission, the state was able to force the defendant to trial. If the admission had not been made, it would have been necessary to have continued the case. The state thereby having obtained the advantage, was in no position to controvert a fact which it had admitted to be true. On the subject Mr. Underhill, in his work on Criminal Evidence, (3rd Ed.) Sec. 425, deduces from many precedents which are cited, the following:
“The statements go to the jury as true, and it is their positive duty so to regard them. They are not open to contradiction. * * * The state must admit the truth of the evidence absolutely.”
See Roberts v. State, 65 Tex. Crim. Rep. 62; Davis v. State, 68 Tex. Crim. Rep. 400; Sutton v. State, 76 Tex. Crim. Rep. 70; Brown v. State, 76 Tex. Crim. Rep. 316; Medford v. State, 89 Tex. Crim. Rep. 1; Walker v. State, 90 Tex. Crim. Rep. 56.
In a bill of exceptions complaint is made of the following argument of counsel for the state in his address to the jury:
“After he was under indictment for unlawfully handling liquor, he goes and hunts up that man, Dr. Tate, and gets him to go down there — and come here and testify that he found his wife in a nervous condition and prescribed whiskey for her. A horse doctor ought to know better. A highly stimulating intoxicant to a little woman under a high state of nervousness. When I heard that he had been in the ministry, but wasn’t working at it now, I could understand why he quit preaching.
“He says Doctor Thompson told him to buy whiskey for his wife, but he goes to Dr. Tate and gets him to prescribe for his wife whiskey for a highly nervous condition. If that proves anything, gentlemen, it proves a general — a manufactured testimony in this case to hoodwink * * * and escape the toils of the law. That’s all it proves — just a multiplicity of protection. And they have the gall and temerity to come before this jury and ask because Dr. Thompson is sick * * * and after he got in the toils of the law Dr. Tate came down here. * * * Manufactured, untrue, for a foul purpose, to defeat the law. Who can question it?”
In the motion for rehearing counsel for the state advances the proposition that in view of the fact that Dr. Tate, a physician, testified for the appellant that he had examined the appellant’s wife, had found her debilitated and nervous due to her change
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of life, and had prescribed whiskey for her as medicine, that the state was privileged to controvert the truth of the admitted fact upon which the continuance was granted. The allowance of the bill makes it clear that the argument was made, but as. qualified, is equivocal touching an exception to the remarks at the time they were made. In view of the admission it may have been unnecessary for the appellant to have proved by any other witness the- illness of his wife or the necessity of the use of whiskey as medicine. The fact that it was proved by another witness would not operate to nullify the admission of the state upon which the continuance was refused. However, as stated in the original opinion^ in view of the admitted truth of Doctor Thompson’s testimony on the present trial, the evidence is not deemed sufficient to support the verdict. The admission, of course, would not operate in another trial.
The state’s action for rehearing is overruled.
Overruled.