
    RAINEY v. STATE.
    (No. 5926.)
    (Court of Criminal Appeals of Texas.
    May 11, 1921.
    Rehearing Denied June 1, 1921.)
    1. Indictment and information ®=3Í 10(31) — Indictment for possessing intoxicants sufficient, though not using expression “had in his possession.”
    An indictment, charging that defendant “did possess” intoxicating liquor not for mechanical, etc., purposes, in violation of the Dean Act, was sufficient, though not using the expression “had in his possession.”
    2. Criminal law <§=696(2) — Answer of witness in liquor prosecution held to have required jnotion to strike rather than objection.
    ¿Hun a prosecution for having in possession nHoxicating liquor not for medical, etc., purposed", where the state’s attorney asked a witness, “What first attracted your attention to the defendant?” and the witness answered, “I was standing at the fountain, watching for him,” etc., if such answer was objectionable, the proper procedure would have required motion to strike it out as unresponsive, and objection to the question asked was not well taken.
    3. Criminal law ©=>1170½(1) — Witnesses <§= 240(4) — Question held not leading or harmful to defendant.
    In a prosecution for having in possession intoxicating liquor not for medical, etc., purposes, question, “Did any liquor come into your hands by. anybody?” was not leading, and did not contain matter harmful to defendant.
    4. Criminal law ©==>1169(1) — Testimony held not prejudicial as conveying impression defendant engaged in selling liquor found in possession.
    In a prosecution for having in possession intoxicating liquors not for medical, etc., purposes, in violation of the Dean Act, where state’s counsel exhibited to a witness two bottles, a funnel, and a glass jug, and asked him what was the size of the bottle at the mouth, and the witness answered, “Just a little bit larger than the little end of the funnel,” such answer was not prejudicial, as conveying the impression that defendant was selling the liquor found in his possession; it being necessary that the possession of the accused be for some purpose other than that excepted by statute.
    5. Criminal law <§=459 — Testimony of witnesses that defendant had whisky admissible.
    In a prosecution for having in possession intoxicating liquors not for medical, etc., purposes, in violation of the Dean Act, testimony of a state witness, who said lie was acquainted with the smell of whisky and had smelled lots of it, that the bottles taken from defendant’s car, from their odor, contained whisky, and testimony of another witness, who said he had not much experience with whisky, but that in his judgment that shown him was whisky, was also admissible.
    6. Criminal law <§=1091(10) — Bill of exceptions to admission of evidence must show meritorious ground of objections.
    When objections are made to evidence, the bill setting them forth must show affirmatively, not only the grounds of objections stated, but enough facts to make it reasonably apparent that such objections are meritorious.
    7. Criminal law <§=406(7) — Statement of defendant bootlegger to sheriff admissible to show intent.
    In a prosecution for having in possession intoxicating liquor not for medical, etc., purposes, in violation of the Dean Act, testimony as to defendant’s conversation with the sheriff after his arrest, and defendant’s making bond, in which defendant stated, in response to what was said by the sheriff, that he did not deny having liquor in his possession, but made his mistake by being caught with it, held admissible as bearing on the question that the liquor was possessed for an unlawful purpose, as was his statement that he drank toó much.
    8. Criminal law <§=459 — Testimony of witness that bottles contained homemade whisky admissible.
    In a prosecution for having in possession intoxicating liquors not for medical, etc., purposes, in violation of the Dean Act, testimony of a witness that from his experience in manufacturing, drinking, and handling whisky, he could tell that the bottle shown him contained homemade whisky, and that it was intoxicating, held admissible.
    9. Criminal law <§=1037(2) — Argument of state’s counsel in prosecution of bootlegger not reversible error, in absence of request for corrective instruction.
    In a prosecution for having in possession intoxicating liquor not for medical, etc., purposes, in violation of the Dean Law; argument of state’s counsel, when he had before him three bottles, two containing the liquor in question and one empty, also a funnel, “Look at that stuff, put a pistol beside it, then you would have a picture of unlawful weapons,” held not so materially injurious to defendant as to require reversal in the absence of request for instruction that the jury do not consider it.
    Appeal from District Court, Yan Zandt County; Joel R. Bond, Judge.
    Jim Polk Rainey was convicted of having in his possession intoxicating liquors not for mechanical or other authorized purposes, in violation of the Dean Act, and he appeals.
    Affirmed.
    Stanford & Sanders, of Canton, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Van Zandt county oí having in his possession intoxicating liquor, not for mechanical, scientific, medicinal, or sacramental purposes in violation of what is termed the Dean Act (acts 2d called Sess. 36th Leg. c. 78), and his punishment fixed at one year in the penitentiary.

There are 14 bills of exception in this record, the contentions in which will be noticed without mention of the formal objections made.

A motion to quash the indictment for its failure to use the expression “had in his possession” the liquor in question, was properly overruled as it appears that the indictment charged the accused “did possess” such liquor, and we see no substantial variance. That the law under which the prosecution was had is unconstitutional, etc., has been fully decided in Ex parte Gilmore, 228 S. W. 199. That the state’s attorney asked a witness, “What first attracted your attention to the defendant?” did not appear to call for the answer given, which was “I was standing at the fountain watching for him, expecting him; I had been called — well I was watching for him.” It would seem that if this answer was objectionable the proper procedure would have required a motion to strike out same as not being responsive, and that an objection to the question asked would not seem to be well taken.

The question, “Did any liquor come into your hands, by anybody?” does not seem to be open to the objection that it was leading, or contained matter hurtful to appellant.

State’s counsel exhibited to a witness two bottles, a funnel, and a glass jug, and asked him what was the size of the bottle at the mouth, and the witness answered, “Just a little bit larger than the little end of the funnel.” No objection was made to this as not being responsive, but it was objected to as having a tendency to convey to the jury the impression that appellant was engaged in selling the liquor found in his possession, and that the effect of this was prejudicial. We do not agree to this proposition, for it is a necessary part of the proof in a case such as the instant case that it be shown that the possession of the accused was for some purpose other than those excepted by statute, and if the proof showed that he had the liquor in question for sale, it would be pertinent as establishing the kind of possession made punishable by statute.

Appellant objected to a state witness, who said he was acquainted with the smell of whisky and “had smelled lots of it,” being permitted to testify that the bottles taken from appellant’s car, from their odor, contained whisky, because not qualified. We are unable to see any sufficient reason why one who knows the smell, taste, or appearance of a given substance may not testify from such examination his conclusion as to what the substance so examined is. The objection would seem to refer more to the weight than to the admissibility of the testimony. This is true of the objection to the testimony of the witness Osborne, who said he had not much experience with whisky, but that in his judgment that shown him was whisky.

This witness also testified that a jug shown him had the same smell as “it had that night.” The bill sets out various grounds of objection to this testimony which does not seem to us to be of much materiality, but no statement of the surrounding facts, relating to the matter objected to, is made in the bill of exceptions from which we may determine whether the objections made are tenable. This condition also obtains in appellant’s bill of exceptions No. 9, which sets out certain objections to testimony to the effect that the contents of certain bottles, by taste and smell, appeared to be sorry corn whisky in the judgment of the witness. The objection seems to be that the witness was not qualified, and that there was no identification of the liquor exhibited to him, as that found in appellant’s possession. When objections are made the bill setting same forth must show affirmatively, not only the grounds of objections stated, but enough facts to make it reasonably apparent that such objections are meritorious.

Bill of exceptions No, 10 sets forth a conversation had between appellant and the sheriff after the arrest of appellant and he had made bond. The bill is not clear, but the court below approved same with a reference to the statement of facts, from which we gather that appellant went to the sheriff on said occasion and asked his opinion as to the best course to pursue, and the officer told him what he thought, and in response to what was said by the officer appellant stated he did not deny having the liquor in question, but had made his mistake by being caught with it. The statement of appellant, and that which was part of the same conversation and which elicited his statement and shed light upon it, was admissible. In this same conversation appellant said that he drank too much. This was admissible as bearing upon the question that the liquor was possessed for an unlawful purpose.

The witness Kellis was permitted to state that from his experience in manufacturing, drinking, and handling whisky, he could tell that the bottle shown him contained homemade whisky, and that it was intoxicating. This does not appear to be erroneous. The liquor involved was tasted, examined, and smelled by a number of witnesses, each of whom testified to its character, and the record is practically bare of any serious contention on that question.

A witness testified, without apparent objection, that appellant had a pistol in his ear when arrested. The record also shows that upon motion of appellant this testimony was excluded.

By his fourteenth bill of exceptions appellant complains that during the argument state’s counsel had before him three bottles, two containing the liquor in question, and one empty; also a funnel, and that he said to the jury, “Look at that stuff, put a pistol beside it, then you would have a picture of unlawful weapons.” The bill of exceptions states that this was objected to, and the court asked to instruct the jury not to consider same, but we are unable to find in the record any written request to the jury asking them not to consider such argument. The only question thus presented to us is whether such argument was of that character as to make it so materially injurious to the rights of appellant as to require a reversal, in the absence of any requested instruction such as just mentioned. We do not think so. It was not the statement of any fact dehors the record, which was likely to produce substantial injury to the accused, but would appear to be more in the nature of an attempted pleasantry on the part of counsel for the state. Appellant was not charged with making an assault upon anybody by the use or carriage of unlawful weapons, and a statement that putting three whisky bottles and a pistol together would make a picture of unlawful weapons would not appear to us to produce any serious injury to the rights of appellant.

We have given careful attention to each of the matters presented by appellant, and, finding no reversible error in the record, an affirmance is ordered.

On Motion for Rehearing.

HAWKINS, J.

Since the motion for rehearing has been filed, we have again examined the statement of facts, in order to consider the bills of exceptions in the light of the entire record. Having done so patiently and carefully, we find no reason for changing our former opinion.

Believing the case was properly disposed of, the motion for rehearing is overruled. 
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