delivered the opinion of the court.

The remarks of the district attorney touching the affidavit for continuance seem to have been heard by some of the jury who tried the case. It was certainly not intended by the very efficient representative of the state that the jury should hear them, but, having heard them, it is impossible to say they did not, in conjunction with the remarks as to the affidavit’s being a proper witness, prejudice the defendant, especially in view of the refusal of the second instruction asked by the appellant. This instruction was not upon the weight of the evidence. It merely stated the rule of law — the statutory rule — which should guide the j ury when the affidavit as to what an absent witness would testify to is before the jury, instead of his oral testimony delivered in person. The instruction should have been given as eminently proper, in view of the fact that Weems was the only eyewitness defendant had. The state’s testimony showed Weems was at the scene of the killing, and could have ‘ ‘ seen into the room [where deceased was killed] if he had wanted to. ’ ’ In view of this conceded fact, the errors indicated are reversible errors.

Judgment reversed, verdict set aside and cause remanded.