
    GREENWOOD v. STATE.
    (No. 8579.)
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1925.
    Rehearing Denied Feb. 11, 1925.)
    1. Criminal law <¾=>1119(4) — Error not predicable on remark of district attorney, where connection with surrounding circumstances not shown.
    Error was not predicable on alleged improper remark of district attorney, where bill in which complaint was made did not show connection of remark with surrounding circumstances.
    2. Criminal law ©=l 144(10) — Act of trial judge in failing to exclude alleged improper remark presumed justified.
    In absence of a showing of connection between alleged prejudicial remark of counsel and surrounding circumstances, presumption is indulged that action of trial judge in failing to exclude remark and in overruling motion for new trial was justified under facts before it.
    3. Intoxicating liquors ©=236(4) — Evidence held to sustain finding that defendant was present when alleged sale of liquor took place.
    In liquor prosecution, evidence held sufficient to sustain finding that defendant was present when alleged sale of liquor to witness was made.
    4. Intoxicating liquors ©=>236(7) — Evidence held sufficient to show possession of whisky for purpose of sale.
    In liquor prosecution, evidence held sufficient to show that defendant was in possession of whisky for purpose of sale.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Tom Greenwood was convicted of unlawful possession of intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    H. H. Cooper, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, 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 far one year.

The indictment embraced a count charging the unlawful possession of whisky for the purpose of sale; a count charging the sale of intoxicating liquor to Bill Bolling; also a count charging the sale to H. J. Janson. The court submitted but one count, namely, that charging the unlawful possession of intoxicating liquor for the purpose of sale. The verdict of guilty is responsive to that charge and count in the indictment alone.

The complaint of the remark of the district attorney that “you have got a man here who is guilty” cannot be sustained for. the reason that we are unable to learn from the bill in which the complaint is made of the connection of the remark with any of the surrounding circumstances. In the absence of sudh information, the presumption is indulged that the action of the trial judge in failing to exclude the remark and in overruling the motion for new trial was justified under the facts before it. Moore v. State, 7 Tex. App. 14; Edgar v. State, 59 Tex. Cr. R. 252, 127 S. W. 1053; Morgan v. State, 82 Tex. Cr. R. 621, 201 S. W. 654, and cases cited.

According to the circumstances detailed by the state’s witnesses, the appellant, on the 16th day of July, possessed a bottle of whisky which he sold to Bolling. Appellant presented the theory of alibi touching this transaction. There was thereby presented an issue of fact touching his presence on that particular date, which issue, in our opinion, was, upon sufficient evidence, resolved by the jury in favor of the state. Two witnesses testified that they, in company with Bolling, went to the house of the appellant, at which were also present the appellant and a negro. According to these witnesses, Bolling got the whisky, handed the negro a $5 bill, which was passed to the appellant, who returned to Bolling '¡¡>2 in change. In addition to the transaction mentioned, however, there was evidence, both from the admission of the appellant and from the state’s witnesses, that appellant, on other occasions within the period of limitations, had possessed and sold intoxicating liquors.

The evidence seems ample to show that the appellant was in possession of whisky for the purpose of sale.

The judgment is affirmed. 
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