
    SCOTT v. STATE.
    (No. 9207.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law &wkey;>l09l(2) — Bill of exceptions failing to show circumstances surrounding matter complained of, and compelling court to search record for error, insufficient.
    A bill of exceptions which fails to show the circumstances surrounding the matter complained of, and which compels the court to search through entire statement of facts or transcript for error, held insufficient.
    2. Criminal law &wkey;>783(l) — Refusal of requested charge that evidence of other offenses could not be considered unless jury believed beyond reasonable doubt that defendant was guilty thereof not error.
    In prosecution for possessing intoxicating liquors, refusal of charge that evidence of other offenses by accused could not be considered unless jury believed beyond a reasonable doubt that defendant was guilty thereof, held not erroneous; this not being an invariable rule applicable to such testimony in all cases, its applicability of facts involved not being disclosed by bill of exceptions.
    3. Criminal law <&wkey;l75 — That one charge was abandoned by state does not give accused right to plead abandoned charge as in bar to further prosecution under remaining: count.
    Where an indictment contained two counts, and court compelled state to mate an election, which was tantamount to an acquittal on charge abandoned, accused could not plead the abandonment of such charge as in bar to further prosecution under remaining count.
    4. Criminal law &wkey;j|059(i) — Exceptions to court’s charge held too indefinite to call for consideration of reviewing court.
    In prosecution for unlawful possession of intoxicating liquor, exceptions to court’s charge, as on weight of testimony, as suggesting that there was testimony tending to show a sale of liquor, and as not properly limiting proof of other crimes, held too indefinite for consideration of reviewing court.
    5. Criminal law <Scw726 — Argument that state spoke as to accused’s reputation through grand jurors who indicted him, in reply to ar-‘ gument urging accused’s good reputation, held not erroneous.
    Where accused on witness stand was asked if it was true that he had been indicted in other felony cases, and defense introduced witnesses to testify as to his good reputation, held, it was not erroneous for state’s attorney, in reply to argument of defense counsel urging good reputation of accused, to claim that state spoke as to appellant’s reputation through grand jurors who indicted him.
    6. Criminal law <&wkey;>l 119(4)— Bills of exception, only setting forth statements made by state’s counsel held to present nothing for review.
    Bills of exception, that state’s attorney said to jury, “We are trying to put a stop to the sale of poison,” and that “the defendant was sworn to tell the truth and did not tell it,” and setting out nothing further, presented nothing for consideration on review.
    7. Criminal law <S&wkey;726 — Argument of state’s attorney as to trying defendant on other cases not erroneous where.it was in reply to argument by defendant’s counsel based thereon.
    In prosecution for possession of intoxicating liquor, argument of state’s counsel that, “We are going to try the other case; he had better get ready for trial,” held not erroneous, in view of fact that it was in reply to argument 'of defense that if there was anything in charges against defendant they would have been tried.
    8. Criminal law &wkey;>722(2) — Statement of prosecuting attorney that he liked accused and hated to prosecute him of no materiality.
    In prosecution for possession of intoxicating liquors, statement of prosecuting attorney in argument that he liked accused and hated to prosecute him, held of no materiality.
    On Motion for Rehearing.
    9. Witnesses <&wkey;>337(5) — Admission of accused and evidence of his indictment for other offenses than that charged, held admissible to affect his credibility.
    In prosecution for possession of intoxicating liquor, admissions of accused and evidence that he had been .indicted for one or more similar offenses, elicited on his cross-examination, held admissible to affect his credibility.
    10. Criminal law i&wkey;>783(l) — Requested charge that all testimony of other offenses not to be considered unless jury found defendant guilty thereof beyond reasonable doubt properly refused.
    In prosecution for possession of intoxicating liquor, where defendant admitted he was under indictments for other offense than that charged, a requested charge “that all testimony with reference to other offenses” could not be considered unless jury found defendant guilty of such offenses beyond reasonable doubt was properly refused.
    11. Criminal law <&wkey;829(!3) — Charge by court held to sufficiently cover question of consideration to be given testimony of other offenses.
    In prosecution for possession of intoxicating liquor,- where evidence of other offenses was received, court’s charge held! to sufficiently cover the point of the consideration to be given such testimony.
    Appeal from District Court, Wichita County ; Guy Bogers,' Judge.
    T. D. Scott was convicted of possessing intoxicating liquor, and he appeals.
    Affirmed.
    Mathis & Caldwell, of Wichita Falls, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in the district court of Wichita county for possession of intoxicating liquor; punishment fixed at one year in the penitentiary. .

The facts amply support the conclusion of the jury. Bills of exceptions Nos. 1, 2, 3, and 4 are so wholly devoid of any statement of the surrounding circumstances, or the facts attendant upon or precedent to the matters complained of, as that we are unable to find out whether same could have been hurtful to the accused. To select some isolated fact or. disconnected statement or single occurrence and merely state in a bill of exceptions that it was said or took place, without any showing of the surroundings, is not enough. We need cite no authorities to support the proposition that when a bill of exceptions is in such condition as that we cannot determine its error without searching through the entire statement of facts or transcript it is not sufficient. Substantially what we have said is true of bill No. 5, which sought to have the jury charged by special instruction that evidence of other offenses had been introduced in evidence, and such testimony could not be considered unless the jury believed beyond- a reasonable doubt that the defendant was guilty of said other offenses. This is not an invariable rule applicable to such testimony in all cases. The accused may be ashed, or witnesses may be asked, under some circumstances, if the accused has not been arrested and charged with crime. This may have been what occurred in the case before us. We cannot tell from the bill.

When an indictment contains two counts, and the state announces, or the court for the state.concludes, that the prosecution shall proceed upon only one count, such announcement being made at the conclusion of the introduction of the state’s testimony, the fact that this would be tantamount to an acquittal under the count thus abandoned would not give the accused any right to plead this, which amounts in law to an acquittal, in bar to further prosecution under the remaining count. This disposes of appellant’s bills of exception Nos. 6 and 7.

Appellant’s exceptions to the court’s charge were as follows:

“(1) On the weight of the testimony; (2) suggests ■ that there was testimony tending to show a sale of liquor; (3) does not properly limit the proof of other crimes.”

Such purported exceptions are too indefinite to call for any consideration at the hands of this court.

Appellant having been asked while on the witness stand if it was not true that he was under indictment in other felony cases, and the defense having introduced witnesses who testified to appellant’s goo'd reputation, it was not a transgression of the rules of legitimate argument for the state’s attorney, in reply to that of the defense counsel urging the good reputation of the defendant, to claim that the state spoke as to appellant’s reputation through the grand jurors who indicted him.

Complaint that the state’s attorney said to the jury, “We are trying to put a stop to the sale of poison,” in his argument, the bill setting out nothing further, presents nothing for our consideration. This is true of the bill of exceptions complaining of the statement in argument by the state’s attorney as follows: “He, the defendant, was sworn to tell the truth and did not tell it.”

The state’s attorney in his argument said: “We are going to try the other case; he had better get ready for trial.” This was objected to. In his qualification the court says it was charged by appellant’s attorney in his argument that the other cases against him were untried, and that it was inferentially stated that if there was anything in them they would have been tried, and that in reply to this the state’s attorney made the statement objected to. The statement of the county attorney that he liked appellant and hated to prosecute him was of no materiality.'

We have examined all the complaints made by appellant, and have referred to most of them. None of them present any error. The judgment will be affirmed.

On Motion for Rehearing;

Brown and Mason swore positively on the trial to having purchased from appellant a quart- of whisky in July, 1924. Two state witnesses, England and Ball, swore to having purchased from appellant intoxicating liquor in October, 1923, Appellant testified in his own behalf, and admitted that, .in addition to the instant case, he was indicted for selling liquor to England, and was under indictment in Montague county for transportation and possession of whisky, and was indicted-in the federal court, and was also under indictment for selling whisky to R. D. Kelley. In this condition of the record appellant asked the court to give a special charge as follows:

“Gentlemen of the jury, youi are charged, as part of the law in this case, that in the trial hereof evidence of other offenses has been introduced in evidence, and I now charge you that you cannot consider such testimony with reference to other offenses for any purposes whatsoever unless you find and believe from the evidence beyond a reasonable doubt that the defendant was guilty, of said other offenses if any were committed.”

Complaint is made of our disposition of the refusal of this charge. Probably we should have said that such charge, under the facts of this case, was too indefinite, inapplicable, and confusing. When appellant admits that he is or has been under indictment for one or. more offenses, it would be wrong for the trial court to tell the jury that they could not consider evidence of other offenses unless the state had proven appellant’s guilt beyond a reasonable doubt in the matters inquired about; such testimony being admissible as affecting credibility. Appellant in no way confined his requested charge to the occurrence of October testified to by Ball and England, but makes said charge embrace “all testimony with reference to other offenses.” It would appear clear that such a charge was properly refused.

In addition to what we have just said, we observe that the trial court gave appellant’s special charge as follows:

“Gentlemen of the jury, you are charged as part of the law in this case that the testimony given with reference to other offenses than that charged in the indictment cannot be used by you against the defendant for any purpose unless from said testimony you believe that the defendant on or about the 4th day of July, 1924, had in Ms possession intoxicating liquor for the purpose of sale.”

We further observe that appellant, who ran a cold drink stand, when cross-examined as to the Ball and England sale in October, repeatedly asserted that he did not sell said parties any “whisky.” In his main charge the court instructed the jury as follows:

“The evidence before you concerning an alleged sale of liquor on or about the 10th day of October, 1923, by the defendant, if you find he made such sale, can only be considered by you as a circumstance tending to show, if you find that it does tend to show, that the defendant had 'possession of intoxicating liquor for the purpose of sale on or about July 4, 1924.
“You are charged as part of the law in this case that the testimony, as given by the witnesses Ball and England, with reference to the purchase of liquor, if same was sold, cannot be considered by you for any purpose unless you find and believe from the evidence beyond a reasonable doubt that the liquor so purchased, if same was purchased, was capable of producing intoxication.”

This sufficiently covered the point.

Believing that the trial court correctly refused the special charge, and( that the issues in the case were properly covered by the charge as given, and that the opinion reached the correct conclusion, the motion for rehearing will be overruled. 
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