
    PETREA v. STATE.
    (No. 7611.)
    (Court of Criminal Appeals of Texas.
    April 4, 1923.)
    1. Intoxicating liquors <&wkey;!34 — Dean Law as amended' held to prohibit sale of intoxicating, spirituous, vinous, or malt liquors.
    The Dean Law as amended by Acts First and Second Called Sess. 37th Leg. (1921) c. 61, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%), prohibits the sale of all intoxicating liquors as well as medicated bitters capable of producing intoxication, and section 2 (art. 588% a) prohibits the sale of such liquors or medicated bitters containing in excess of 1 per cent, of alcohol by volume, regardless of whether they are capable of producing intoxication.
    2. Criminal law <&wkey;94l (2) — Refusal of new trial for newly discovered evidence held error.
    In a prosecution for the illegal sale of intoxicating liquor, the state’s witnesses testified that the sale was made at a crossroads near the accused’s house. Other evidence showed that it could not have been at any other place. After the trial, the accused’s attorney by accident discovered two witnesses who saw the state’s witnesses pass the crossroads in question, and who made affidavit that no sale of liquor took place there. Held that the newly discovered evidence was not cumulative, but went to the foundation of the state’s case, and under Code Cr. Proc. art. 837, subd. 6, required a new trial.
    Appeal from District Court, Hopkins County ; Geo. B. Hall, Judge.
    Bill Petrea was convicted of the sale of intoxicating liquor, and he appeals.
    Reversed, and remanded.
    Allen, Sellers & Beasley, of Sulphur Springs, for appellant.
    R. G. Storey, Asst. Att'y. Gen., for the State.
   HA WHINS, J.

Conviction is for the sale of intoxicating liquor with punishment assessed at one year’s confinement in the penitentiary.

The indictment alleges the sale: of .spirituous, vinous, and malt liquor capable of producing intoxication. Appellant attacks the indictment on the ground that section 1 of chapter 61 (amendment of the Dean Law) 1st and 2d Called Sessions of the 37th Legislature, p. 233 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼), does not embrace spirituous, vinous, and malt liquors “capable of producing intoxication,” but that the portion of the statute quoted relates only to medicated bitters capable of producing intoxication. We cannot agree with appellant’s contention in this regard. If we should be controlled alone by the location of punctuation marks, the section might be subject t'o the interpretation placed upon it; but we think, taking the two sections together, there can be no doubt that the Legislature intended the first section to prohibit the sale of all intoxicating liquors, as well as medicated bitters capable of producing intoxication, and in the second section t'o prohibit the sale of such liquors or medicated bitters containing in excess of 1 per cent, of alcohol by volume, regardless of whether or not it was capable of producing intoxication. Trevinio v. State (Tex. Cr. App.) 242 S. W. 242.

The indictment alleges that appellant sold the liquor to Less Dickens, Roy Pickens, and Alto Pickens on August 15, 1922. In his motion for new trial for alleged newly discovered evidence appellant avers that while the indictment alleged the sale as of date August' 15, 1922, that in fact the only time appellant ever saw together the three parties named as the purchasers was at his home some time during the month of March. It is shown by affidavit of one of his attorneys that, in an effort' to ascertain the facts upon which the state would rely, he talked to one of the alleged purchasers prior to the time of the trial, who declined to give him any information whatever about it, and advised him it would be useless to see the other copurchasers as they would not talk to him either; that preparing for trial as best he could, and assuming the purchasers would fix the occasion of the purchase as of the time they were at his house, regardless of the date in the indictment, he had present as witnesses two ladies who were at his house at the time in question waiting upon his wife, who at that time had a young baby only four days old. The first witness used by the state fixed the date as about' August 15th, as alleged in the indictment, but also testified that he and his copurchasers were never together at appellant’s house except one time. The state rested its case in chief on the testimony of this one witness. In rebuttal the other two alleged purchasers fixed the date as the 24th day of March, corresponding with the testimony of appellant and his witnesses. It may be said that both the witnesses for the state and appellant' finally agreed that the actual date of the transaction was March 24th, some fixing it one way and some another. It is also shown that on this day school closed in the neighborhood. The purchasers testified that they stopped at appellant’s house for the purpose of making inquiry about a dog which one of them had lost; that appellant came out to their car and during the conversation agreed toi sell them the liquor and was to deliver it at' the “crossroads” as they returned. The “crossroads” was some 200 yards from appellant’s house. The state’s witnesses further testified that they left appellant’s house going in search of their dog, passed the point of delivery, and were gone about 20 minutes, when they came back to the “crossroads,” and there appellant did meet them and deliver the whisky for which they paid. By the sworn statement of appellant t'o his motion for new trial and also by affidavit of his attorney it is shown that in no way were they advised or could ascertain that the state’s witnesses would claim the “crossroads” as t'he point of delivery until after they had so testified upon the trial; that after conviction it was ascertained by appellant through his father (appellant being at the time in jail) that two witnesses, Doe Bunch and Preston Morgan, upon the afternoon of the day in question were at the house of one Howard Brand, which is situated near the intersection of the roads in question; and that these witnesses would testify that no such transaction as that testified to by the state’s witnesses occurred. The affidavits of these witnesses were secured and attached to the motion for new trial. The time fixed by them is the date of the closing of the school, and the circumstances set out in their affidavits leaves no doubt as to its being the same date upon which the state’s witnesses claimed to have purchased the whisky. These two witnesses saw, and one recognized, the three alleged purchasers at the time they stopped at appellant’s house; saw them leave there and return in about 20 minutes, and on both trips saw them pass the intersection of the roads where they claimed to have stopped and received the whisky. Both witnesses assert positively in their affidavits that no such transaction occurred ; that the three state’s witnesses were traveling in a car and that they never stopped at the crossroads either as they went from Petrea’s house or as they came back later; that from where they were located on the gallery of Brand’s house there was no obstruction between them and the intersection of the roads, nor between them and Pet-rea’s house; that if any such transaction had occured they could, and would, have seen it.

It is seldom a case is presented where newly discovered evidence as ground for a new trial is urged that the defendant brings himself so clearly within the statute (article 837, subdiv. 6, C. C. P.) as is done by appellant' in the instant case. ^The testimony of appellant, his wife, and the neighbor ladies who were at his house upon the occasion in question, negatives the fact that he delivered any intoxicating liquor t'o the state’s witnesses at the house, and appellant denies positively the transaction as testified to by the boys as occurring at the “crossroads.” The ladies who were at his house did not see the state’s witnesses as they came back and passed the “crossroads,” and could only testify that to their knowledge appellant never left the house on the afternoon in question. Appellant now offers the affidavits of two witnesses who will testify positively that they were in a position to see, and did see, the state’s witnesses on that occasion and at that point as they came back; that they did not stop, and neither did appellant meet them. If their evidence should be believed by the jury, it would completely destroy the state’s case as made in the record before us. We do not regard it as merely impeaching or cumulative testimony, but it goes to the very foundation of the state’s case, as made by the three alleged purchasers.

Believing the learned trial judge fell into error in not having granted a new trial to give appellant an opportunity to present said evidence to the jury upon another trial, the judgment must be reversed, and the cause remanded. 
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