
    ASHER v. STATE.
    (No. 7688.)
    (Court of Criminal Appeals of Texas.
    June 27, 1924.
    Rehearing Denied Nov. 4, 1925.
    On Application for Leave to File Second Motion for Rehearing Dec. 2, 1925.)
    1. Criminal law <&wkey;I26(2) — Denial of change of venue in prosecution for unlawful sale of liquor held not error.
    In prosecution for unlawful sale of intoxicating liquor, denial of change of venue on ground that mayor of city had been active in endeavoring to engender sentiment in favor of prohibition law enforcement, and for that purpose 'had called a mass meeting, held not error.
    2. Criminal law &wkey;j||l50 — In absence of abuse of discretion, denial of change of venue is not ground for reversal.
    In absence of abuse of discretion, denial of change of venue is not ground for reversal.
    3. Criminal law &wkey;>l 120(8) — Bill of exceptions held not to show error in admission of statements of witness.
    Where sale of liquor to two of state witnesses was alleged, but on trial one of such witnesses denied the purchase, held that bill of exceptions complaining of statements made by such witness just after alleged sale did not show error, when not showing defendant was not present or that statements were not admissible for purposes of impeachment.
    4. Criminal law <&wkey;>l 141(1) — There is a legal presumption in favor of correctness of ruling.
    There is a legal presumption in favor of correctness of trial court’s ruling.
    5. Criminal law &wkey;>l09l(4) — Essentials of bill of exception, complaining of admissibility of evidence, stated.
    Bill complaining of admissibility of evidence must be so explicit as to permit determination whether it was properly received, and, where evidence may have been admissible as res gestie or impeaching, bill should reveal the contrary.
    6. Criminal law &wkey;>59l — Denial of continuance held not abuse of discretion.
    In prosecution for unlawful sale of liquor, denial of continuance on equitable grounds that public agitation and activities of Ku Klux Klan had created an atmosphere which would make impossible a fair trial, held not abusé of discretion.
    7. Jury <&wkey;95, 97(3) — Overruling challenge for cause held not error.
    In prosecution for unlawful sale of liquor, overruling challenge for cause of jurors who had attended mass meeting called for purpose of engendering sentiment in favor of prohibition law enforcement, and who had also acted as jurors in trial of another for same offense that defendant was charged with, held not error.
    
      8. Jury <&wkey;95 — That juror served in prior similar case does not disqualify him.
    That juror has sat in similar case where parties and witnesses are different does not disqualify him, if he is able to declare to satisfaction of court that he is without opinion or prejudice in present case.
    9. Criminal law &wkey;>l09l (10) — Bill of exception held not to disclose error in exclusion of evidence.
    Bill of exception complaining of exclusion of evidence held not to present error, where stenographer’s notes attached, by court showed that objection to such evidence was first made and then withdrawn.
    10. Criminal law &wkey;l 120(8) — Bill of exception complaining of admission of evidence held not to disclose error.
    Bill of exception, complaining of testimony as to amount paid defendant for liquor, held not to disclose error.
    11. Criminal law &wkey;665(4) — Excusing witness from rule and' permitting him to assist in prosecution held . not error.
    In prosecution for unlawful sale of liquor, where chief prosecuting witness, the mayor of the town, was also a practicing attorney, excusing such witness from the rule and permitting him to, assist in prosecution held not error.
    12. Intoxicating liquors <&wkey;239(2) — Evidence held not to necessitate charge on subject of agency.
    In prosecution for unlawful sale of liquor, evidence tending to show that purchasers paid for liquor with marked money furnished by , mayor of city held not to necessitate charge on subject of agency.
    13. Intoxicating liquors <&wkey;l2j39(IO) — Charge defining sale held not necessary under evidence.
    That unlawful sale of liquor was made to one using marked money furnished by another held not to necessitate charge defining sale.
    14. Criminal law &wkey;»783(2) — Instructions limiting use of impeaching testimony held sufficient.
    Instructions as to use to be made of evidence introduced solely for purpose of discrediting state’s witness, who had testified contrary to expectations, held adequate to protect defendant against any misuse of such testimony.
    15. Witnesses <&wkey;>380(5) — State may not discredit own witness, whose testimony merely fails to sustain its case.
    State, having called a witness, may not impeach him by proof of contradictory statements out of court because his testimony fails to sustain its case.
    16. Witnesses &wkey;>321 — State’s impeachment of own witness held warranted.
    Where sale of liquor to two purchasers was alleged, but on trial one of such purchasers denied purchase, thus not only failing to sus-) tain state’s case, but testifying to inconsistent and contradictory facts, state was warranted in introduction of impeaching testimony.
    17. Criminal law <&wkey;l 137(5) — Witnesses <&wkey;t 3311/2— Impeaching testimony held not admissible but harmless error, in view of defendant’s own evidence.
    Testimony that witness told H. and another that liquor could be bought from defendant was not admissible to impeach H., who denied that t,hey purchased liquor, but was not ground for reversal when same evidence was adduced by defendant on cross-examination of another witness.
    18. Criminal law <S&wkey;956(l I)— Denial of new trial, sought on ground of misconduct of jury, without oral examination of jurors, held not error.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. • 841, court may determine controversy relative to misconduct of jury by affidavit or oral testimony, and refusal to examine jurors as to alleged misconduct in considering defendant’s failure to testify, and denial of new trial on affidavit presented, held not error.
    19. Intoxicating liquors <&wkey;236(ll) — Evidence held to sustain conviction for unlawful sale of intoxicating liquor.
    Evidence held to sustain conviction for unlawful sale of intoxicating liquor.
    On Motion for Rehearing.
    20. Criminal law &wkey;>l 186(4) — Intoxicating liquors <&wkey;i223(6) — Proof of sale to two persons would not warrant conviction under indictment charging sale to one of them, but instruction to contrary was harmless error.
    Where state relied only on count charging -sale of liquor to one of two persons, held, under Vernon’s Ann. Code Or. Proc. 1916, art. 464, that conviction could not be had on finding by jury of sale to them jointly, but instruction authorizing such conviction harmless, under Code Or. Proc. 1925, art. 666.
    Lattimore, J., dissenting in • part.
    Appeal from District Court, Stephens County; O. O. Hamlin, Judge.
    Charles Asher was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Etank S. Roberts and John W. Hill, both of Breckenridge, for appellant.
    S. J. Osborne, Asst. Dist. Atty., of Breckenridge, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Sale of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant and his wife were keepers of a' hotel in the city of Breckenridge. The witness Savage testified that he purchased from the appellant some whisky for which he paid him $2. Savage claimed that Hedgespeth was present.' According to his testimony, Savage and Hedgespeth had received marked money from the mayor of the city with Which to tray whisky. There was evidence that some of this marked money was. later found in the possession of the appellant.

The record is voluminous. There are many bills of exception.

A motion to change the venue was made. This bill was not filed with the clerk until after the adjournment of the term of court. The verdict was returned on the 22d day of October, and the stenographer was immediately called upon for a statement of facts. This was completed on the 26th day of October and attached to the bill, which was presented to the district attorney on the 27th of that month. He declined to approve it for want of time in which to examine it. It was presented on the last day of the term, the 28th of October, to the trial judge for examination and approval. He declined to take immediate action, but later approved and filed it with the clerk. Appellant’s counsel appears to have been diligent. An examination of the bill leads us to the conclusion that we are not warranted in /holding that, in refusing to change the venue, the learned trial judge abused his discretion. The bill reveals certain activities of the mayor of the city in endeavoring to engender sentiment in favor of the enforcement of the law prohibiting the liquor traffic. A mass meeting was called, and speeches were made. We fail to perceive anything, however, in the record which would point to prejudice against the appellant or a prejudgment of his case. In the absence of an abuse of the discretion vested in the trial judge, the refusal to change the venue is not ground for a reversal on appeal. Parker v. State, 81 Tex. Cr. R. 397, 196 S. W. 537; Baker v. State, 87 Tex. Cr. R. 213, 220 S. W. 326; Dodd v. State, 83 Tex. Cr. R. 160, 201 S. W. 1014; Carlile v. State, 90 Tex. Cr. R. 1, 232 S. W. 822.

The witness Deason, according to his testimony, intercepted Savage and Hedgespeth after they left the place of the appellant and took from Savage a pint of whisky. Hedgespeth at the time stated that it had been obtained from Asher’s place. The court overruled the objection made upon the ground that the testimony was hearsay.’ iThe bill fails to negative the presence of the appellant or to show the irrelevancy of the evidence ; nor does it negative the theory that the testimony may have been proper under a predicate for the impeachment of the witness Hedgespeth. As the matter is presented, we are unable to conclude that that error is revealed. The legal presumption is in favor of the correctness of the court’s ruling. Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612; Branch's Ann. Tex. P. C. § 207, p. 132. A bill complaining of the admission of evidence should be so explicit as to enable the court to determine from it whether it was properly received; and' where, as in the present case, the evidence' may have been admissible as res gestae or impeaching, and the bill fails to reveal the contrary, the presumption. in favor of the court’s ruling must prevail. Eldridge v. State, 12 Tex. App. 208; Lavar v. State, 26 Tex. App. 115, 9 S. W. 552.

In bill No. 4 is preserved the complaint of the refusal of the court to continue the case. The application is not based upon statutory grounds but upon alleged equitable grounds in that “public agitation of the practice of bootlegging and the activities of the Ku Klux ,Klan had created an atmosphere so unwholesome for those charged with the unlawful sale of intoxicating liquor as would make improbable a fair trial.” Such an application must necessarily be left to the discretion of the trial court. In the present instance, the bill is so qualified as to strip it of any vitality. The court declined to verify the statement of facts contained in the bill, and refers this court to the entire statement of facts to show that there was no combination of influential persons against the accused, that he was practically unknown, and his case had been heard of by but few. We have observed no such evidence of prejudice against the appellant or his case as would authorize a decision by this court that in overruling the application the learned trial judge abused his discretion.

Bill No. 5 asserts that the panel from which the jury was drawn consisted of 13 regularly drawn jurymen and 12 tales-men ; that 12 of the. veniremen were residents of the city of Breckenridge, in which there had been held a mass meeting; the nature of which is not revealed. The names of the talesmen selected are given, and it was eharged,that they were in the main residents of the city of Breckenridge; that 5 members of the panel had attended the mass meeting mentioned; that 12 of the veniremen were challenged for cause upon the ground that they had attended the mass meeting, and had also acted as jurors 'in the trial of another person for the same offense as that for which appellant was on trial, at the same term of court, and found him guilty ; that, the challenge for cause being overruled, the appellant was compelled to challenge the jurors who were unfriendly and to accept 6 objectionable jurors — that is, jurors who had sat in the other case mentioned. From the fact that a juror had sat in a similar case Wherein the parties and the witnesses are different, who is able to declare to the satisfaction of the trial court that he is without opinion or prejudice in the present case, he is not disqualified by reason of his previous service. Bailey v. State, 56 Tex. Cr. R. 227, 120 S. W. 419; Dunn v. State, 7 Tex. App. 606; Irvine v. State, 55 Tex. Cr. R. 349, 116 S. W. 591; Holmes v. State, 52 Tex. Cr. R. 354, 106 S. W. 1160; Gruesendorf v. State (Tex. Cr. App.) 56 S. W. 624; and other cases listed by Mr. Branch in his Ann. Tex. P. O. § 558, subd. 2. And even jurors who convicted the accused upon another case based on a different transaction, and with different witnesses, have been held not legally challenged for cause. Arnold v. State, 38 Tex. Cr. R. 1, 40 S. W. 734; Edgar v. State, 59 Tex. Cr. R. 255, 127 S. W. 1053. While jurors might be disqualified by their having tried a similar case, the facts of the present one do not bring them within the rule. The case mentioned above, together with others cited by Mr. Branch in his Ann. Tex. P. O. § 558, subds. 9 and 10, illustrate the distinction.

Bill No. 6 reveals that theo witnesses Savage and Hedgespeth, a short time before the present transaction, were at the hotel belonging to the appellant in company with women.not their wives; that the hotel was raided and the women arrested and fined, and the two witnesses mentioned released. The bill complains of the failure of the court to permit the proof by the witness that he was not fined. The stenographer’s notes are attached by the court, and show that, objection was first made and then withdrawn to the question propounded seeking to elicit this information. There is no merit in the bill.

In bill No. 7 it is the .complaint of the appellant that, after the witness Savage had testified that he gave the appellant two $1 bills, Hedgespeth took the bottle of liquor and handed it to Savage, who put it in his pocket; that $2 was the price paid for the liquor. The state, on redirect examination, asked the witness Savage this question: “In all, how much did you and Hedgespeth give Oharlie Asher?” The' witness replied: “Four dollars.” The state had previously announced that it had elected to prosecute “for the sale of said bottle of liquor and not for any,other sales.” We confess our inability to discern from the recitals in the bill any vice in the ruling.

Bill No. 8 complains of the excusing of Mr. Fulwiler from the rule, upon the ground that he was the chief prosecuting witness; th'at he, as mayor of the city, had, previous to the trial, called a law and order mass meeting; that the witnesses Savage and Hedgespeth had been instigated by Ful-wiler to buy whisky from the appellant. The bill, as qualified, discloses no certification of the facts stated in the bill other than that Mayor Fulwiler was excused from the rule because he was a practicing attorney before the Breckenridge bar and was permitted to assist in the prosecution upon the request of the district attorney. The state’s witness Savage testified that, with the money furnished him by Fulwiler; he purchased from the appellant a bottle of whisky and paid the price agreed upon. Savage seems to have been in the main a witness for the state. In relaxing the rule with reference to the party named, the trial judge acted within his authority. The matter of releasing a witness from the rule is usually a matter within the discretion of the trial court. Bishop v. State, 81 Tex. Cr. R. 96, 194 S. W. 389.

We fail to discern any reason for a charge upon the subject of agency; nor do we regard th£ transaction as one requiring a definition of the term “sale.” The court instructed the jury that, if appellant sold the whisky to Savage, a sale was made, The fact that Savage was using money furnished by Fulwiler in making the purchase, we think, would not require a charge defining sale or agency.

There were many circumstances introduced in evidence tending to discredit Hedgespeth. Among these were statements made out of court which were in conflict with his testimony given upon the trial. Several special charges were given upon this subject. In one of them the jury was told that the statements made by Hedgespeth could not be used as evidence of guilt, and could be considered for no purpose except as to affect the credibility of .the witness Hedgespeth. In another special charge the jury was told, in substance, that the state relied solely upon the averment that the appellant sold the pint bottle of intoxicating liquor which was offered in evidence to R. R. Savage, and, if the evidence left in the1 minds of the jury a reasonable doubt as to whether, the bottle o'! liquor in question was sold by the appellant to R>. R. Savage, that an acquittal must follow. In this charge the jury was also instructed that they were not to consider as evidence of appellant’s guilt any evidence of other transactions. These special1 charges and the court’s main charge are deemed adequate to protect the rights of the appellant against any misuse of the testimony introduced to impeach the witness Hedgespeth.

Bill of exceptions No. 10, complaining of the failure of the court to give-additional instructions upon the subject, is regarded as presenting no error.

The state called the witness Hedgespeth who testified on direct examination that he had no transaction with Asher on September 26th, nor did Savage have a transaction in the presence of the witness; that "he was at the Frisco Hotel on that date, and that he did nothing and saw Savage do nothing; that he purchased no liquor and saw Savage purchase none; that they went from the city hall, and in about 30 minutes' were at the hotel; that he saw no marked money, nor the officers Hickey, Thornton, or Deason; that he did not state to Deason that he had bought whisky. 1-Ie admitted that he had, testified before the grand jury that he had bought whisky from the appellant; that he had no recollection in detail what he did testify to; that he gave that testimony because the grand jury had threatened to put him in jail; that he did not have any whisky when he went to the appellant’s place, and did not know whether Savage had any; that he did not see Deason take any whisky from Savage, and did not tell Deason that the whisky was gotten from the appellant. He said that Fulwiller did not tell him to go to the appellant’s place and buy whisky.

There were three counts in the indictment. The first charged the sale of whisky to R. R. Savage and H. E. Hedgespeth, the second count charged the sale of whisky by appellant to H. E. Hedgespeth, and the third count • charged the sale of whisky to R. R. Savage. The court instructed the jury that the first and second counts were withdrawn, and that they would regard only the third count, which charged the sale to Savage.

The court instructed the jury, in substance, that, if the evidence showed beyond a reasonable doubt that the sale of the intoxicating liquor was made to Roy Savage or to Roy Savage and H. E. Hedgespeth jointly, the averment in the indictment charging the sale to Savage would be satisfied. This is attacked upon the ground of variance; the point made, in substance, being that the statute (article 464, Vernon’s O. C. P.) required that in the indictment for the present offense the name of the purchaser shall be given. The court in the indictment under which the conviction was made charged the sale to Savage. There was evidence sufficient to sustain that averment, though there was evidence to the effect that Hedgespeth was present, and that the bottle of whisky was sold to the two. In Oyc. of Law & Proc. vol. 23, p. 260, the announcement is made that, where the indictment charges the sale of intoxicating liquor to one person named, the conviction will be sustained by proof that the sale was made to the person named and another who is not named in the indictment. This seems to be supported by the decision of the Supreme Court of this state in the case of Ryan v. State, 32 Tex. 280; Parker v. State, 45 Tex. Cr. R. 334, 77 S. W. 783.

The witness Hedgespeth, called by the state, testified that he and Savage went to the appellant’s place of business, but that neither bought any whisky; that neither, with his knowledge, delivered any money to the appellant. The state sought to impeach him after predicate by proving by Fulwiler that he had given Hedgespeth and Savage money, and told them that they could buy whisky from the appellant, and requested them to do so. It was proved by Deason that he had searched Hedgespeth and Say-age and found a pint of whisky in the possession of Savage; that Hedgespeth said they had gotten it from the appellant. The state also proved, for impeaching purposes, that Hedgespeth had gone before the grand jury and testified, admitting in his testimony that he and Savage had gotten whisky from the appellant. The right to impeach Hedgespeth by contradictory statements is •challenged upon the ground that he was the state’s own witness. The state having called Hedgespeth, it was not authorized to impeach him by contradictory statements out of court, if his testimony went no further than to fail to sustain the state’s case. Branch’s Ann. Tex. P. C. § 164. In the present Case, the state’s witness .Savage testified, in substance, that he and Hedgespeth had both participated in buying liquors; that both handed marked money to the appellant; that Hedgespeth received whisky from the appellant and handed it to Savage. Hedgespeth, admitting his presence upon the occasion described by Savage, denied that any sale had taken place in his presence or that he took part in any sale, or that Savage bought any whisky while the witness was present. It cannot, under these circumstances, be said that Hedgespeth’s testimony was a mere failure to sustain the state’s case. It goes further, in that he testified to facts inconsistent with and/ contradictory of the state’s case. Under such circumstances ■ his impeachment by contradictory statements relevant and germane to the particular matter under inquiry was permissible. Somerville v. State, 6 Tex. App. 433; Baum v. State, 60 Tex. Cr. R. 638, 133 S. W. 271; Branch’s Ann. Tex. P. C. § 164, subd. 4; Bryan v. State, 97 Tex. Cr. R. 79, 260 S. W. 846. Under this rule, apparently the declaration imputed to Hedgespeth by the witness Deason, to the effect that soon after the alleged occurrence, while Savage and Hedge-speth were together, .Deason took from Savage a bottle of whisky, and Hedgespeth declared that it was obtained from the appellant, was permissible for the purpose of impeachment but not as original testimony. A predicate for its introduction was laid, and it was limited by the court for impeaching purposes. It is believed, however, that the impeaching testimony given by the witness Fulwiler was upon a different footing. We quote from the witness’ testimony:

“I told the boys (Hedgespeth and Savage) that I wanted them to go to Charlie Asher’s and buy some whisky; I said I knew they could get it if they tried.”

Hedgespeth denied this statement. There was a predicate laid for proof of this testimony by the introduction of his denial. This seems, however, to have gotten into the ease by hearsay opinion or knowledge of Fulwi-ler expressed to Hedgespeth that whisky could be bought from the appellant. In the .introduction of this item of evidence, the 'state went beyond the permitted limits in impeaching its own witnesses. Hedgespeth testified, as above stated, that he did not buy the whisky, and that he did not see Savage buy it. This left the impression upon the jury that whisky was not purchased as the state claimed. His statement to Deason that it was purchased from the appellant was germane and pertinent to the affirmative testimony given by him. The other statement, however, was not so; and its receipt, in our opinion, might have been error had it not been for the fact that the same fact was proved as original testimony by the appellant in his cross-examination of the witness Savage (Hedgespeth — see opinion on second motion for rehearing). The state did not open the question. The appellant having made the proof, he is not in a position to demand a reversal of the judgment because the'State did likewise. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169.

Appellant attached to his motion for new trial the affidavit of one of the jurors to the effect that, before the jury reached the verdict, and while the other 11 stood for a conviction and he stood for an acquittal, there was a discussion of the failure of the appellant to testify. The truth of this averment is controverted .by written pleadings, accompanied by the affidavits of 2 jurors, in substance, to the effect that Smith’s opposition to a conviction was overcome by having, under the direction of the court, the stenographer read the testimony of Mrs. Asher, appellant’s wife, and that such references as were made to the failure of the appellant to testify were but casual, and were immediately stopped by the foreman and other jurors. -In connection with the motion, appellant sought to have the other jurors examined. This the court declined to do upon the ground, reciting in effect that the verdict was rendered on the 22d day of October; that the amended motion for new trial setting up the misconduct of the jury and attaching ’ Smith’s affidavit was filed on the 27th of that month; that the last day of the court was on the 28th; that the court was exceedingly busy with motions incident to closing a two-month term; that, owing to the locality in which the other jurors were situated and scattered throughout the country, it was impracticable to bring them before the court during the term; that, the affidavit of Smith being controverted, the diligence of the appellant to subpoena or cause the attendance of the other jurors at an earlier date rendered it practically impossible to comply with his request. It was the privilege of the court to determine the controversy by affidavit or oral testimony (article 841, C. O. P. Vernon’s Tex: Orim. Stat. vol. 2, p. 808), and the present record reveals no abuse of such privilege.

The thirty-sixth subdivision of the appellant’s motion for new trial contains some averments touching an alleged demonstration at the Baptist Church in the city of Breckenridge after the verdict in this case was returned, and stated that the judge trying the case could verify the correctness of the averment. The bill of exceptions complains of the refusal or failure of the judge to give testimony. In qualifying the bill, the judge said that -he could have given no testimony on the subject; that he was not present and had no information touching the announcement or demonstration to which the reference was made. The relevancy of the matters set up in the subdivision is not perceived.

Aside from the briefs, this case is presented by a transcript and statement of facts embracing more than 400 pages of typewritten matter. It has been given the most careful attention of which we are capable. Considering the nature of the case, both the record and the opinion are unusually long. All the matters presented have been considered, but space forbids their discussion in detail. We have reached the conclusion that the evidence is sufficient to sustain the conviction, and that no ruling or action of the court is brought up for review which authorizes a reversal of the judgment.

It is therefore affirmed.

HAWKINS, J.

I entertain serious doubt as to the soundness of the announcement that, under a count in the indictment charging a sale to Savage alone, an instruction was proper which authorized a conviction upon proof of a joint sale to Savage and Hedgespeth.

On Motion for Rehearing.

HAWKINS, J.

There ■ were three counts in the indictment. The first charged a joint sale of the whisky to Savage and Hedgespeth; the second charged a sale to Hedgespeth alone; and the third charged a sale to Savage alone. The court' eliminated the first and second counts, submitting only the third, charging the sale to have been made to Savage. In connection with this he instructed the jury, in substance, that, if the evidence showed beyond a reasonable doubt that the sale was made to Savage, or to Hedgespeth and Savage jointly, the averment in the indictment charging the sale to Savage would be satisfied. Our original opinion holding such instruction not to have been erroneous is attacked as being out of harmony with former decisions of this court. An' investigation of this same question in Brown v. State (Tex. Cr. App.) 276 S. W. 908 (No. 7810; opinion on second motion for rehearing this date) leads us to the conclusion that we were in error in our former opinion, and that the instruction complained of should not have been given. Many of the former decisions of this court are reviewed in Brown’s Case, supra, and it is unnecessary to dq so again. The conclusion there reached was that the naming of the purchaser was descriptive of the offense, and an averment of a sale to one would not be supported by proof of a joint sale to two or more, and vice versa. To bold otherwise would necessitate overruling the eases cited in Brown v. State, supra, and again listed here for convenience. Dixon v. State, 21 Tex. App. 517, 1 S. W. 448; O’Shennessey v. State, 49 Tex. Cr. R. 600, 96 S. W. 790; Price v. State, 83 Tex. Cr. R. 322, 202 S. W. 948; Ellington v. State (Tex. Cr. App.) 86 S. W. 330; Sessions v. State (Tex. Cr. App.) 98 S. W. 243; Bruce v. State, 39 Tex. Cr. R. 26, 44 S. W. 852; Yakel v. State, 30 Tex. App. 391, 17 S. W. 943, 20 S. W. 205; Arnold v. State, 47 Tex. Cr. R. 556, 85 S. W. 18; Tippit v. State, 53 Tex. Cr. R. 180, 109 S. W. 190; Westbrook v. State, 88 Tex. Cr. R. 223, 225 S. W. 750.

However, we have reached the further conclusion that under the facts of this case while the charge complained of was erroneous, it does not demand a reversal, and in this respect is similar to the ease of Price v. State, supra. The facts are that the money for the purchase of the whisky was furnished by Fulwiler, and given by him to Savage. According to Savage, Hedgespeth refused to take any of the money. Savage testified that he purchased the whisky, • and that Hedgespeth was with him; that at' this time he handed Hedgespeth $2 which the latter handed to appellant, and that he (Savage) handed appellant $2 also; that appellant handed the whisky to witness (Savage) or handed it to Hedgespeth, who immediately handed it to witness (Savage), and that he put it in his pocket. The whisky was found in possession, of Savage. The money furnished by Fulwiler was marked. The purpose of Savage was to get evidence against appellant rather than to acquire the whisky. Hedgespeth was also called as a witness by the state. Instead of supporting Savage, he denied having any transaction, either with appellant or Savage. He admitted his presence with Savage at the place of the alleged purchase, ,but denied the purchase of any whisky himself or seeing Sayage buy any. According to the evidence, Savage alone received the money from Fulwiler, was the latter’s agent, and the chief actor in acquiring the whisky. Under the testimony, we think it unlikely that the erroneous charge would have led to the conviction of appellant for an offense not charged in the count of the indictment submitted. Believing the erroneous charge not calculated to have injured appellant, it' will be held harmless under the provisions of article 666, C. O. P. (formerly article 743). We consider that the motion for rehearing should be overruled.

Judge LATTIMOBE

concurs in the disposition made of the motion, but dissents from' the holding that the charge complained of was erroneous, for the reasons given in his dissenting opinion in Brown v. State (Tex. Or. App.) 276 S. W. 908 (No. 7810).

The motion for rehearing is overruled.

On Application for Leave to File Second Motion for Behearing.

LATTIMOBE, J.

In. refusing appellant’s request for' leave to file second motion for rehearing, we make the following additional observations to what we said in our opinion on the original motion for rehearing;

The count on which conviction was had charged a sale of intoxicating liquor to Savage alone. The evidence supported such allegation. Marked money was given to Savage alone with which to purchase whisky. He carried it to appellant’s place; one Hedgespeth accompanying him. After negotiating for the whisky, and when it was delivered, Savage says that, if he be not mistaken, he' handed Hedgespeth $2 of said marked money, and that each of them then handed $2 to the appellant who delivered the single bottle of whisky purchased to Savage, who further testified: “When I bought the liquor, I put it in my pocket.” Both Savage and Hedgespeth testified for the state; the latter denying having had anything to do with the transaction either in the way of paying money to appellant or negotiating for or receiving any whisky. The weight of the testimony thus showed a sale to Savage. The record so showing, and the fact of Hedgespeth’s participation in the transaction being denied by him, and same being left doubtful by the testimony of Savage, we concluded that a charge that, if the jury believe 9. sale was made to Savage, or to both Savage and Hedgespeth, they should convict, was incapable of harm to appellant. We adhere to this view.

In discussing appellant’s complaint in bill of exceptions No. 18 of the reception of certain impeaching statements by witness Ful-wiler, in our original opinion we inadvertently used the name of witness Savage where we should have used the name of witness Hedgespeth. The cross-examination of this latter witness showed that he then testified that he had told Fulwiler of his purchase of whisky from appellant prior to the. instant occurrence.

Leave to file second motion for rehearing is denied. 
      other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
     
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     