Opinion
No. 27878.
December 7, 1955.
Appeal from the County Court at Law No. 2, Harris County, Wm. A. Miller, Jr., J.
Martin Shown, by W. E. Martin, Houston, for appellant.
Dan Walton, Dist. Atty., Eugene Brady, Thomas D. White, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the sale of whiskey in a wet area without having procured a permit from the Texas Liquor Control Board; the punishment, a fine of $125.
The State, through her able District Attorney, concedes error. The State's principal witness failed to identify the accused as the person who had sold the whiskey to him. There were no other witnesses to the sale. The State plead surprise and introduced a statement made by their witness. This evidence impeaching their witness cannot be used as primary evidence against the appellant. Wells v. State, 154 Tex.Crim. 336, 227 S.W.2d 210.
The judgment is reversed and the cause remanded.