
    LONG v. STATE.
    (No. 8376.)
    
      (Court of Criminal Appeals of Texas.
    April 16, 1924.
    Rehearing Denied June 4, 1924.)
    Criminal law <©=>! 169(7) — Witnesses <©=>268 (I) — Cross-examination of defendant’s brother as to previous explanation of matter held proper.
    Where defendant’s brother at time of their arrest had in possession a check which he testified was not given defendant in payment for whisky, cross-examination as to his explanation of its possession at the time was proper, and his testimony that he requested the sheriff to preserve the check because it had not been paid was not ground for reversal, though defendant was not present.
    Appeal from District Court, Howard .County ; W. P. Leslie, Judge.
    R. W. Long was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    John B. Littler, of Big Springs, and B. W. Baker, of Carthage, for appellant.
    Tom Garrard, State’s Atty., Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the sale ' of intoxicating liquor, with punishment of one year in the penitentiary.

The sale of the liquor in question is alleged to have been made to one Hanson on the 9th of May, 1923. I-Iis evidence is that he went to the home of appellant, and there purchased from him four gallons of whisky, in payment for which he executed a check for $60 payable to appellant; that he (Hanson) requested the check be not presented for payment until later. Appellant denied having made the sale. On June 23d appellant and H. O. Long, his brother, were arrested upon another whisky transaction, and the $60 cheek in question was found in H. O. Long’s possession. He and appellant explained said check by testifying that some time in April Hanson had sought to borrow from appellant the sum of $60 at a time when H. O. Long was present; that, appellant not having the money, H. O. Long furnished it to him, and that the $60 check was made in repayment of this loan, and was indorsed by appellant to H. O. Long to reimburse him for the money furnished appellant for Hanson. After H. O. Long had testified to the foregoing facts he was asked by the state upon cross-examination what explanation, if any, he made to the sheriff as to the check in question when it was found by the officer. ■ Objection was interposed on the ground that appellant was not present at the time, and if H. O. Long did or did not make an explanation relative to said check it would not be binding on appellant in his absence; the objection being overruled, the witness answered that he told the sheriff to keep the cheek, as it had not been paid. The bill of exception presenting the foregoing matter is the only bill we find in the record. We think it unnecessary to discuss at length the matter complained of, because the answer of the witness H. O. Long could in no way have been harmful to appellant; what he told the officer was in no way inconsistent with his testimony upon the trial.

There were no exceptions to the court’s charge, and no special charges requested. The only bill in the record revealing no harmful error an affirmance of the judgment is ordered. .

On Motion for Rehearing.

MORROW, P. J.

The state’s witness Parrish Hanson testified that he purchased whis-ky from the appellant, and that in payment therefor he executed his check, payable to the appellant, for' $60. Appellant testified that he had made to Parrish Hanson an accommodation loan of money which he had obtained from his brother, H. O. Long; that the check executed by Parrish Hanson was in payment of this loan; and that upon receiving it he delivered it to his brother, H. O. Long.

H. O. Long was introduced by the appellant as a witness in his behalf, and on direct examination .corroborated the appellant’s theory in accounting for his (R. W. Long’s) possession of the check mentioned. The check was exhibited at the trial and identified. It bore the indorsements of R. W. Long, H. O. Long, and Q. P. Buchanan. H. O. Long testified that he had given the check to Buchanan in order to have it cashed ; that it was returned to him unpaid, the check bearing the indorsement, “Insufficient funds.” On cross-examination it was shown that H. O. Long was arrested upon a charge , of the unlawful possession of intoxicating liquor, and that the check was in Ms possession at the time of his arrest. State’s counsel asked him:

“What explanation did you offer for having it?”

Witness replied;

“I told him I wanted to keep the check. I says. T want to keep that check; it has not been paid. If you hold it, don’t destroy it; it has not been paid.’ ”

We confess our inability to perceive the analogy of this with the facts in Hyden’s Case, 31 Tex. Cr. R. 401, 20 S. W. 764, and the Roberts Case, 70 Tex. Cr. R. 297, 156 S. W. 651. The matter of the check, the possession of it, and the effort to collect it were brought out in the direct examination, and were the proper subject of cross-examination. The explanation oif his possession given by H. O. Long seems to have been in no way contradictory or inconsistent with his direct testimony upon the trial. The bill in the present instance, if we comprehend it, reflects no effort to impeach the witness H. O. Long, and, being in no sense contradictory of the testimony previously given by him, its receipt cannot be regarded as a legal reason for reversing the judgment of conviction;

The motion for rehearing is overruled. 
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