
    LUDTKE v. STATE.
    (No. 7844.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1923.
    Rehearing Denied Jan. 9, 1924.)
    1. Criminal law <&wkey;422(6) — Statements of accomplice out of defendant’s presence admissible against him.
    Statements by one of two persons acting together with the design of selling liquor, though made without the presence of the other, are admissible against him.
    2. Intoxicating liquors &wkey;>231— Competent for state to prove analysis of liquor.
    It is competent for the state to prove the chemical analysis or alcoholic contents of liquor found in defendant’s possession.
    3. Criminal law <&wkey;l091 (I I) — Bills of exception in question and answer form not entitled to consideration.
    Bills of exception in question and answer form are not entitled to consideration.
    On Motion for Rehearing.
    4. Intoxicating liquors: <&wkey;»I39 — 'That liquor given away with lunch does not relieve defendant from guilt of possession for sale.
    That a liquor containing more alcohol than was allowed by statute was served' free with lunches sold by defendant, or given to induce the purchase of the lunches, did not militate against his guilt of possession for the purpose of sale; the possession and disposition either directly or indirectly being a violation of law.
    5. Intoxicating liquors &wkey;5236(6¡/2) — Evidence supports finding that possession of liquor was for purpose of sale.
    Evidence SteW to support finding that defendant had intoxicating liquor for purpose of sale.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    P. P. Ludtke was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    -Affirmed.
    E. O. Puller, of Houston, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year.

The appellant and Isaac Broussard were jointly indicted. Broussard was a negro in the employ of the appellant, who conducted a grocery and butcher business and also served drinks and lunches.

Three witnesses for the state entered the premises, walked through the butcher shop, where they found the appellant, and into a room back of the shop, but not in the-same building, where they found the negro Brous-sard, who served and they paid for what they denominated beer. While they were so engaged, officers entered the. premises and took possession of a number of eases of beer and 24 gallons of liquid which had not been bottled and a quantity of wine. They also found in the butcher shop four quarts of tequila and one quart of whisky.

Appellant’s confession was introduced in evidence; also, his testimony. He claimed that the tequila was for his own use and not for sale; that the whisky belonged to another ; that the beer was served free with his lunches, though he admitted that he at time sold it. The so-called wine was vinegar for his own use. The officers took possession of the liquids, and, when analyzed, it was found that the beer contained 2.85 per cent, alcohol by volume; the wine, 9.88 per cent, alcohol by volume; and the brandy, 27.50 per cent, by volume.

Pour bills of exception relate to the conversation with Broussard by the purchasers of the liquor at the time of the purchase. Broussard and the appellant were acting together with the design of selling the liquid, and Broussard’s remarks in the absence of the appellant in pursuance of the enterprise were admissible against the appellant.

The bill complaining of the testimony of Erwin, to the effect that he took part of the liquid to the chemist, is without merit. It was competent for the state to prove the analysis of the articles found in the appellant’s possession.

Bill No. 7 is in question and answer form and for that reason cannot be considered. Reading it, however, it apparently develops legitimate testimony identifying the liquid analyzed which was received from the appellant.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We have again considered those matters in the record reliance upon which is had by appellant in his motion for rehearing, and regret our inability to agree with any of the propositions advanced. It is true that appellant testified in some parts of his evidence that the beer he sold he called bone dry, but the entire testimony for tlie state shows that an analysis of this beer or bone dry revealed its alcoholic content to be greater than that which is fixed by statute. It is also true that appellant called vinegar that which the officers called wine and whose analysis revealed a much larger alcoholic content than that fixed by statute. Appellant’s contention seems to be that he served his bone dry with lunches which he sold his patrons. This would in no wise seem to militate against the conclusion of guilt. One may not manufacture or have in his possession an alcoholic liquor such as is forbidden by statute and dispose of it directly-or indirectly without violating the law. Appellant might sell his lunches and as an inducement to buy tfiq lunches throw in the beer, but this would not prevent such action from being a violation of the law. It is without dispute that appellant had in his possession a quantity of liquor whose analysis disclosed that it had more than 1 per cent, of alcohol by volume, .and that same was intoxicating. The evidence amply justified the conclusion of the jury that he had it for purposes of sale.

The motion for rehearing wEl be overruled. 
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