
    SAWYER v. STATE.
    (No. 7727.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.
    Rehearing Denied Dec. 2. 1925.
    Second Rehearing Granted June 25, 1926.)
    1. Intoxicating liquors <§t=238(5).
    Whether transaction relating to liquor constituted sale held jury question under appropriate instructions.
    2. Intoxicating liquors <§=>239(7).
    In prosecution for possessing liquor for sale, it is not necessary to give definition of possession similar to definition given in theft.
    3. Intoxicating liquors <§=>239(7) — Instruction that conviction for possessing liquor for sale would not be authorized, unless accused was in actual personal possession for sale, held sufficiently to cover question of possession.
    In prosecution for possessing, for sale, liquor found in automobile claimed to belong to accused, instruction that conviction would not be authorized unless accused was in actual personal possession for purpose of sale, though not specifically defining possession, held sufficiently to cover question of possession.
    4. Criminal law <§=>338(2).
    In case depending on circumstantial evidence, any evidence tending to make out state’s case fairly is admissible.
    5. Intoxicating liquors <§=>233(1) — In prosecution for possessing liquor for sale, testimony relating to accused’s conduct in relation to car in which liquor was found held admissible.
    In prosecution for possessing liquor for sale, testimony that witness secreted himself near automobile containing liquor, and that accused started to go toward ear, but suddenly went away when witness made a noise, and could not be found thereafter, held admissible.
    6. Intoxicating liquors <§=>233(1).
    In prosecution for possessing liquor for sale, admission of evidence tracing automobile in which liquor was found, and replevy bond furnished by accused to recover possession of car from federal authorities, held not error.
    7. Intoxicating liquors <§=>233(1) — Testimony that accused inquired whether witness would be interested in whisky held admissible in prosecution for possession for sale.
    In prosecution for possessing liquor for sale, testimony that accused, on day in question, ■ inquired of witness whether he would be interested in whisky held admissible to show accused’s connection with whisky found in his car, and that he had it for sale.
    On Motion for Rehearing.
    8. Criminal law <§=>1038(3), 1056(1).
    Defendant could not complain of failure to submit issue of accomplice testimony, where hei requested no charge thereon, and did not except to charge for failure to charge on accomplice testimony.
    9. Intoxicating liquors <§=>236(7).
    Evidence held to warrant finding that accused was guilty of possessing intoxicating liquor for sale.
    10. Criminal [aw <®=>76((9).
    Where there is no controversy in evidence over a given issue, court may assume it as established in his charge.
    On Second Motion for Rehearing.
    11. Criminal law <@=>761 (12)-*• Instruction that previous transaction in w'hich accused obtained whisky for witness might be considered on question of intent held erroneous as assuming fact in issue that transaction was sale.
    In prosecution for possessing liquor for sale, instruction that prior transaction in which accused obtained whisky for witness at his request might be considered on issue of intent only held erroneous as assuming that transaction was sale, where facts raised issue whether accused was not agent of witness in procuring whisky.
    12. Criminal law <§=>374.
    Evidence of other offenses should not be received even under some exception permitting it, where accused is not shown to be party guilty of offense.
    Lattimore, J., dissenting on second motion for rehearing.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    I. L. Sawyer was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Reversed and remanded.
    Morrow & Stollenwerck, of Hillsboro, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Hill county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at one year in the penitentiary.

The trial court eorreGtly declined to quash the indictment herein. Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090; Nantz v. State, 94 Tex. Cr. R. 283, 250 S. W. 695.

The refusal of a special charge instructing the jury that the transaction, had hy appellant with one Wolfe, if true, would not constitute a sale of intoxicating liquor presents no error. The question of whether it did in fact constitute a sale would in any event be a jury question under appropriate instructions. State v. Sheffield, 183 N. C. 783, 111 S. E. 617; Bryant v. State, 156 Ark. 580, 247 S. W. 56.

At the request of the appellant, the court gave the following charge:

“Gentlemen of the jury, even though you may believe from the evidence beyond a .reasonable doubt that, on or about the date alleged in the indictment, intoxicating liquor was found in the Eord touring car, on the streets of Hubbard, Tex., and further believe beyond a reasonable doubt that said Ford car at that time was owned by the defendant, you would still not be authorized to convict him, unless you further believe beyond a reasonable doubt that he was in actual personal possession of said intoxicating liquor, and further believe beyond a reasonable doubt that he had same in his actual personal possession for-the purpose of sale.”

The matters complained of in bills of exception Nos. 3, 4, 5, 8, 0, and 10 are rendered of no- avail to appellant, in view of the special charge given and set out above. The language of said special charge is more favorable to appellant than the statement of this court in its opinion in King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107.

It is not necessary to give a definition of possession, in a case such as this, similar to the definition given in theft. The language of the special charge above set out covered the question fully. Newton v. State, 94 Tex. Cr. R. 288, 250 S. W. 1036. Bills of exception up to No. 17 are substantially covered by whát we have just said.

The case against appellant was one of circumstantial evidence, and in such case any matter of evidence which would tend to make out the state’s case fairly would be admissible. One of the elements of the offense charged was that the possession by appellant of the liquor in question was for purposes of sale. The state placed on the stand a witness named Wolfe, who testified that about a month before the transaction involved in this case he went to the' appellant for the purpose of getting liquor, and the appellant told him that he thought he could get it for him, and that he gave the appellant some money, and appellant did bring to him the liquor desired, telling him that he had gotten it with the money given him by Wolfe. Whether the transaction was a sale by appellant to Wolfe or not was for the jury, and the entire transaction was a legitimate circumstance to be considered by the jury in determining whether appellant had the liquor in question, if he did, for purposes of sale. The prosecuting attorney presented a special charge to the court, which was given, instructing the jury that the transaction with Wolfe could be considered by them only for the purpose of showing the intent of the defendant, if it did, with regard to the disposition of the whisky which was found in the car belonging to the defendant. We do not think any of the objections made to said special charge and presented in bill of exceptions No. 17 are sound. Not do we think bill of exceptions No. 18 complaining of the admission of the testimony of Mr. Wolfe presents error.

On the 23d of December, 1921, a Ford car, later claimed by appellant, was found standing on the street of Hubbard in Hill county, _ and in it were some 18 quarts of whisky. Appellant was in said town going around from place to place. A witness who testified for the state secreted himself in a store near by the point where the car was parked. He testified that appellant started tdward the car, and got up within a few feet of it, and that witness started out of the store, and came in contact with a lot of plows, sweeps, etc., which made quite a noise, and that appellant turned and went away from the ear suddenly, and did not show up. near the car again. We think this testimony was admissible, and that the conduct of appellant was a circumstance to be considered by the jury. This is complained of by bills of exception Nos. 19, 20, 21, and 22.

We perceive no error in the testimony tracing the Ford car in question from the possession of Officer Sealey at Hubbard into the possession of Mr. Akins, deputy marshal at Waco, nor in the fact that the car was bonded out by appellant. The identity of the car and appellant’s ownership thereof was fully testified to, and there was no error in the introduction in evidence of a replevy bond made and entered into the federal court at Waco by the appellant replevying the Ford car in question. It was signed and sworn to by the appellant, and contained the expressed statement that said car belonged to him.

Nor can we agree with appellant that the testimony of Mr. Bruner was inadmissible. This witness testified that he remembered seeing appellant in Hubbard about the 23d of December, 1921, and that some time about that date appellant came in the office of witness, and wanted to know if he would be interested in some whisky. This testimony was material as a circumstance not only showing appellant’s connection with the whisky in question, but as indicating that he had same for purposes of sale. We are unable to agree with appellant that the case of Payne v. State, 89 Tex. Cr. R. 529, 232 S. W. 802, indicates that the testimony of Mr. Wolfe was wrongfully admitted.

Finding no error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

In his motion for rehearing, appellant claims that we erred in holding admissible the testimony of witness Wolfe; second, in not holding that it was error for the trial court to give a special charge asked by the state limiting Wolfe’s testimony; third, in holding the testimony sufficient to show appellant’s possession of the liquor in question: fourth, in holding admissible the replevy bond executed by appellant; and, fifth, in the court not charging the jury with regard to the the ory of accomplice testimony as related to the witness Wolfe.

We note these contentions in reverse order. The transaction made the basis of this prosecution occurred in Hubbard Oity December 23,1921. Along with other circumstances to show that the purpose of appellant in possessing the liquor in question was for sale, the state put Wolfe on the witness stand, and proved by him that some time about the middle of November, 1921, he got from appellant a quart of whisky, for which he paid him $4. Another witness had testified that along about the date of,the instant transaction appellant came to him, and asked him if he was interested in whisky—asking witness if he wanted to buy it, or if he would like to have some, or something to! that effect. No exception was taken to the court’s charge for any failure to charge on accomplice testimony, nor was any special charge asked presenting the law of this issue. In this condition of the record appellant is in no position to complain that the issue was not submitted, even if the testimony had shown that the occurrence between appellant and Wolfe was prior to the taking effect of the amendment to the Dean Law in 1921 (Acts 37th Leg. [1st Called Sess.] c. 61), which removed purchasers from the ranks of accomplices, which it did not do. Bridges v. State, 88 Tex. Cr. R. 61, 224 S. W. 1097; Berlew v. State, 88 Tex. Cr. R. 241, 225 S. W. 518; Gibson v. State, 88 Tex. Cr. R. 281, 225 S. W. 538; Castleberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216; Hill v. State, 89 Tex. Cr. R. 450, 230 S. W. 1005. Castillo v. State, 75 Tex. Cr. R. 643, 172 S. W. 788, cited by appellant, seems to have been tried in the lower court before the Practice Act of 1913 in reference to charges became effective, and the opinion in that .case presents no reference to the law now effective in regard to exceptions to the court’s charge.

Discussing the admissibility of the replevy bond, we observe there seems no dispute of the fact that the car which had in it in Hubbard City on December 23d, four jugs of whisky, and which was taken into custody by the officers that day, and that-night turned over to the federal authorities, was replevied by appellant on December 30, 1921, by giving a replevy bond which he executed as principal with others as sureties. In said re-plevy bond, over appellant’s own signature, was the statement that he owned the ear therein described by license, seal, and motor number. The record otherwise reflects that appellant was in Hubbard 'City on that day, and was seen a number of times before noon, and about noon was observed going toward this particular car. When he got within six or eight feet of it, an officer, who was watching from the rear of a nearby store, started toward him, but made an accidental noise with articles which he came in contact with, whereupon appellant turned and went away, and was not found in said town any more during that day, though - the officers looked for him. By the tax collector of the county it was also shown that a car bearing the same license, seal, and motor number as the one containing said liquor had been theretofore transferred to appellant. The case was one of circumstantial evidence, and was so treated by the court in the charge. We have no. doubt of the correctness of his action in admitting that part of the replevy bond which stated the numbers on said car and the admission of ownership by appellant.

In reference to the sufficiency of the testimony to show possession, we note that the car was appellant’s; that it-was parked in Hubbard Oity on that day; that he lived in another town; that he wasi in Hubbard City, and was there seen a number of times during the morning of said day; that the car had attracted the suspicious attention of the officers, and they were watching it; that he was seen near the car and going to it. When a noise was made by a watching officer, appellant went away, and, though searched for, was not found in the town again that day. No one else came for the car. It was taken in custody by officers, and delivered to the federal authorities that same day. Mr. Bru-ner swore that on or about that day appellant asked him if he wanted to buy some whisky, or if he would like to have some, witness was not quite sime which. These facts, coupled with the additional proof of appellant’s ownership of the car, seem ample to support the conclusion of the jury that he was in possession of the car and its contents in Hubbard Oity on that day.

Reverting to the complaint of the admission of the state’s special charge limiting Wolfe’s testimony, we note the court gave said charge as follows:

“Gentlemen 'of the jury, at the request of the state, you are charged as follows: The testimony of the witness T. S. Wolfe, to the effect that he had a transaction with the defendant about the middle of November, 1921, in which he received from the defendant one quart of whisky, and that he .thereafter delivered to defendant $4.00 for same, was admitted for the purpose of showing the intent of the defendant, if it does, in regard to the disposition of the whisky which was found in the car belonging to the defendant, and you cannot consider such testimony for any other purpose.”

This was- objected to by appellant for various reasons. It is a well-settled rule that, where there is no controversy in evidence over a given issue, the court may assume it as established in the charge. There is not a word of evidence in this record controverting the fact that the car in question belonged to appellant. As stated above, tbe replevy bond stated specifically over appellant’s signature that said car did belong to bim, and tbe tax collector testified that bis records showed a transfer of said car to appellant. No one directly or indirectly controverted this fact. We think appellant suffered no injury from tbe assumption in said special charge that tbe car belonged to bim. Tbe evidence of Wolfe was pertinent as affecting the purpose for which appellant possessed tbe liquor, if be did. possess it. We think tbe use of the words “intent in regard to tbe disposition of tbe whisky” as used in the' charge presents substantially tbe same idea as if tbe charge bad stated tbe purpose for which be possessed it. Our Brother MORROW regards that part of tbe special charge referring to appellant’s intent as on tbe weight of tbe evidence.

As to tbe question of tbe admissibility of the testimony of Wolfe, we think it admissible, because tbe case was one of circumstantial evidence, and also because a particular intent on the part of tbe possessor of tbe liquor in question becomes material by virtue of tbe statute. Our Brother MORROW is of tbe opinion that this evidence was not admissible.

In cases of circumstantial evidence, proof of any material fact may be made by circumstances the weight and cogency of which are for tbe jury, if same shed any legitimate light on such issue. There is a well-settled exception to tbe general rule rejecting evidence of other offenses and transactions when a particular intent on tbe part of tbe accused becomes an issue. If such proof be pertinent to tbe establishment of such particular intent, it would not be a valid objection to it that it was proof of another offense. There is nothing in said special charge assuming tbe truth of tbe testimony given by Wolfe, and it fairly limits said testimony as affecting tbe jury’s belief as to the purpose for which appellant had tbe whisky, if he did have, same in bis possession.

. Being unable to agree with appellant, tbe motion for rehearing will be overruled.-

On Second Motion for Rehearing.

HAWKINS, J.

So uncertain were we as to the propriety of receiving the testimony of the witness Wolfe, and especially the propriety of the special charge given at the state’s request regarding this evidence, that permission was granted appellant to file a second motion, and tbe mandate withheld.

Tbe special charge referred to is copied in the opinion on rehearing, and it is unnecessary to again set it out. Tbe facts upon which it was based are found in Wolfe’s testimony as follows:

“I .had a business transaction with him (appellant) in the latter part of the fall of 1921, in which said transaction I received some whisky from him. That was about the middle of November. * * * I got one quart of whisky from him. I asked him if he would get me some, and he said he would try, and he came back that evening and gave it to me. I gave him something later on. I didn’t at the present time. He said it was $4, and that is what I gave him. * * * What I told him was that I wanted him to see if he could get me some whis-ky. * * * When he brought me the whisky, it was in response to the idea that I wanted him to get me some whisky. It is a fact that when I did pay him the $4 that Mr. Sawyer told me that was the price the whisky cost him, and that he wanted me to repay him the price that he paid for the whisky which he brought me.”

It is well to have in mind that the transaction about which Wolfe testified occurred some 40 days prior to the transaction upon which tbe prosecution was based and in another town. If appellant bad been upon trial charged with tbe sale of this whisky to Wolfe, it is doubtful if upon tbe facts stated a conviction would have resulted. They certainly would have raised tbe most pertinent question whether appellant was acting as Wolfe’s agent in procuring tbe whisky. Tbe jury would have been required to settle this question against appellant before a conviction would have been authorized. If he was Wolfe’s agent in securing the whisky, then in law his act was free from criminal wrong, and had no significance as throwing light upon tbe subsequent transaction for which he was being prosecuted. ” If this transaction with Wolfe was free from criminal wrong, the mere fact that it related to whisky would not clothe it with legal probative force in determining his intent or purpose with reference to tbe whisky which may have been in his possession 40 days later. The charge complained of authorized tbe jury to consider this transaction with Wolfe regardless of its criminal or innocent character. In other words, tbe court assumed that it was of such criminal character as authorized the jury to consider it upon the issue of appellant’s purpose or intent with inference to tbe whisky he was being prosecuted for possessing 40 days later.

It is well settled that evidence of other offenses should not be received even under some exception permitting it when accused on trial is not shown to be tbe party guilty of committing tbe offense. Isham v. State (Tex. Cr. App.) 41 S. W. 622; Williams v. State, 38 Tex. Cr. R. 128, 41 S. W. 645; Branch’s Ann. Tex. P. C. p. 100. In Walton’s Oase, 41 Tex. Cr. R. 454, 55 S. W. 566, he was prosecuted for theft of cattle from one Drummond. Evidence was admitted regarding tbe taking of certain cattle belonging to Darnell. Tbe court says:

“It is shown, without controversy, that appellant [Walton] had an interest in the Darnell cattle, and was in possession of them, and the most that can be said is that the evidence raises some suspicion that he might have embezzled said cattle. Before this character of evidence, could be admitted against appellant, there should have been some testimony indicating with a reasonable degree of certainty that appellant was guilty of the theft of the Darnell cattle.”

We quote also from Fountain v. State, 90 Tex. Cr. R. 474, 241 S. W. 489:

“Where ‘intent’ becomes an issue, proof of. other offenses throwing light upon the question is permissible; but before permissible then it must be shown that a prior crime was committed, and with reasonable certainty that accused was the guilty party. Denton v. State, 42 Tex. Cr. R. 427, 60 S. W. 670; Williams v. State, 88 Tex. Cr. R. 128, 41 S. W. 645; Walton v. State, 41 Tex. Cr. R. 454, 55 S. W. 566; Wool v. State, 83 Tex. Cr. R. 121, 201 S. W. 1006. For other authorities, see Branch's Ann. P. O. vol. 1, p. 100. We think the admission of all the testimony with reference to an alleged prior offense was error: First, because it does not appear with sufficient certainty that any crime was then committed; second, accused’s connection therewith, even if a crime was committed, is not shown with the degree of certainty required.”

See, also, Glenn v. State (Tex. Cr. App.) 76 S. W. 757; Hocks v. State, 97 Tex. Cr. R. 480, 261 S. W. 1053.

If appellant’s transaction with Wolfe was only as agent for the purchaser, it was not a criminal act, and would he inadmissible for any purpose upon the present trial. The learned trial judge would not be authorized to assume that it was a sale, and therefore permit its consideration on the question of intent. This, in effect, the charge complained of did. It was a charge upon the weight of the evidence, and subject to the exception presented on that ground. Neither is the form of the charge to be commended.

We have reached this conclusion after careful review of the authorities. Believing we were in error in our former disposition of the case, the judgment of affirmance and that overruling the prior motion for' rehearing are set aside, and the judgment is now reversed and the cause remanded.

LATTIMORE, J.

(dissenting). This appellant was convicted of possessing intoxicating liquor for purposes of sale. While circumstantial, the evidence shows, without dispute from appellant, who did not testify, that he was in Hubbard, Tex., with 18 quarts of whisky in his ear. When the whisky was discovered in said car, appellant abandoned it. He had recently bought the whisky from Tom Wolfe, because of whose testimony, apparently, my Brethren think this case should be reversed. Mr. Bruner swore that about the date of this transaction appellant came to witness’ office and asked him if he would like to have some whisky, or if he wanted to buy some, witness was not quite sure which. Bruner told appellant he was not interested. Wolfe swore that some time in the fall of 1921 — he guessed about November 15th —he got a quart of whisky from appellant; that he asked appellant if he would get him some, and appellant said he would try, and brought the quart that evening. Later witness paid appellant $4. On cross-examination witness said that appellant brought him the whisky in response to the idea that witness wanted him to get him some whisky; that, when he paid appellant for it, the latter told him that was what the whisky cost him; that he wanted witness to repay him what he paid for the whisky. No request was made for any instruction telling the jury that, if appellant was not selling said quart of whisky, but was only Wolfe’s agent in the transaction, the jury should not consider it for any purpose. The court was asked to tell the jury not to consider Wolfe’s testimony, and also to tell them that in law the transaction would not constitute a sale. The court gave a special charge relative to Wolfe’s testimony, which is quoted in our •opinion on motion for rehearing above, wherein the jury was specifically told that the only purpose for which Wolfe’s testimony could be considered was as showing, if it did, what disposition Wolfe intended to make of the whisky found in the car belonging to him. It was apt. We must believe that the jury appropriated Wolfe’s testimony for the purpose stated, and no other. Apparently there could be no doubt from the testimony aside, from that of Wolfe’s, as to the purpose of appellant in possessing the liquor in Hubbard on the day in question. He lived in Penelope, a town some miles distant from Hubbard. He was at the latter place in a car bought from Wolfe with 18 quarts of whisky in his possession. He approached Bruner, and tried to interest him in the purchase of whis-ky. The testimony of Wolfe can be entirely rejected, and the ease, in the language of Judge Ramsey, be made out by other testi* mony beyond a reasonable doubt. Common experience teaches us that parties who deal with bootleggers are reluctant to reveal the details, and, when used as witnesses, will clothe their testimony in the most favorable language possible to the accused.

In this case the jury gave to appellant the lowest penalty. To reverse it because of the testimony of Wolfe as to the transaction supposed to be in November before the transaction herein involved in December, for the sole reason that the testimony of Wolfe does not make it clear whether the transaction he was talking about was one of agency or not, seems to the mind of the writer to lose sight of the real facts and pertinent issues in this case, and to reverse it for a collateral matter whose weight here, as well as likely in the minds of the jury, was very little.

I regret my inability to agree to the reversal, and respectfully record my dissent. 
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