
    KING v. STATE.
    (No. 11300.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    Rehearing Denied March 14, 1928.
    1. Criminal law <3=5386 — -'Testimony as to movements of defendant selling liquor, observed in mirror, held admissible.
    Testimony of prohibition officer as to seeing defendant sell liquor to another by observing movements of parties in a mirror held admissible.
    2. Intoxicating liquors <3=5236(7)— Evidence held to sustain conviction of unlawful possession of liquor for sale.
    Evidence held to sustain conviction of unlawful possession of liquor for purpose of sale.
    On Motion for Rehearing.
    3. Criminal law <§=5449(1) — 'Witness need not be qualified as “expert” before testifying as to observing movements of defendant by looking in mirror.
    It was not necessary that witness, who observed movements of defendant in. sale of liquor to another by looking in a mirror, be qualified as expert before testifying; an “expert" being one who has skilled experience or extensive .knowledge in his calling, or in any branch of learning.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Expert.]
    Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
    Edgar King was convicted of unlawful possession of intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    W. Lindsay Bibb, of Corsicana, for appellant.
    A. A. Dawson, State’s Atty., 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 for one year.

The state’s testimony, in substance, was this; Wolverton, a federal prohibition enforcement officer, possessing the names of persons in Corsicana thought to be engaged in violation of the laws prohibiting the traffic of intoxicating liquor, and knowing that whisky was being sold at a certain grocery store, entered the place, and sought to purchase whis-ky from the appellant. A number of persons were present and drinking whisky, hut appellant declined to sell any to the witness, stating that, as he was unknown to the appellant, the witness would have to get some one with whom appellant was acquainted to make a purchase; that so many persons were coming in that one must be careful. The witness left the place, and, after obtaining a small mirror, returned, and entered into a conversation with two old gentlemen. One of these men was a frequenter of the place, and agreed to purchase a half pint of whisky for the witness. The old man was furnished with a dollar, and, after a private conversation with appellant, the two went to a place in the building behind a partition. The witness adjusted his mirror so that he could observe the movements of the appellant and the old man. The witness, by the reflection in the mirror, saw the old man hand the appellant $1 and receive the bottle of whisky, which the old man later delivered to the witness.

There was an issue touching the identity of the appellant and much cross-examination of the state’s witness.

To that part of the testimony of the witness Wolverton which disclosed his observation of the transaction as reflected in the mirror objection was made, and the ruling preserved by a bill of exceptions in which the grounds of objection are thus stated:

“Because such evidence was secondary, and not the best evidence, but the mere conclusions of an inexpert witness, the state’s witness, Wol-verton, not having qualified as an expert on mirrors, reflections, and angles. And, having failed to produce the magic little mirror so that the jury could have the actual alleged facts presented and illustrated, such evidence amounted to opinions and pure deductions of the witness, and was highly prejudicial to the rights of the defendant.”

The bill might be disposed of by the statement that the quotation is but grounds of objection, as there is contained in the bill no recital touching the knowledge of the witness as an expert on mirrors, or the reflections and angles thereof. See Davis v. State, 96 Tex. Cr. R. 447, 258 S. W. 188; Belcher v. State, 96 Tex. Cr. R. 561, 257 S. W. 1097; Welk v. State, 96 Tex. Cr. R. 653, 260 S. W. 1118; 2 Yernon’s Ann. Tex. C. C. P. 1925, art. 667, note 23, p. 368. The evidence detailing the reflection of a mirror would seem admissible upon the principle which sanctions the introduction of photographs and moving pictures. See 2 Wigmore on Evidence (2d Ed.) p. 107, § 798; also Zucarro v. State, 82 Tex. Cr. R. 8, 197 S. W. 982, L. R. A. 1918B, 354, in which there are quoted the remarks of Associate Justice Holmes in a decision of the Supreme Court of the United States, referring to an encroachment of the copyright of Ben-Hur by a moving picture. The court said:

“Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of a word. It would be impossible to deny the title of drama to pantomime as played by masters of the art. * * * But if a pantomime of Ben-Hur, it would be none the less so that it was exhibited to the audience by reflection from a glass, and not by direct vision of the figures— as sometimes has been done in order to produce ghostly or inexplicable effects. The essence of the matter in the case last supposed is not the mechanism employed, but that we see the event or story lived. The moving pictures are only less vivid than reflections from a mirror. With the former as with the latter our visual impress —what we see — is caused by the real pantomime of real men through the medium of natural forces, although the machinery is different and more complex.”

We will add that, aside from the testimony of which complaint is made, the evidence is quite sufficient to support the verdict.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files an urgent motion insisting that our opinion was wrong in bolding admissible the testimony of the state witness who said that he saw appellant make the sale in question, by observing the movements of the parties in a mirror. He also insists that the evidence is not sufficient to support the conclusion. Appellant’s contention is that, before the state witness could testify that he saw appellant making the'Sale in question, by looking in a mirror, he would have to qualify as an expert. We are not in accord with this proposition. Webster’s International Dictionary defines an expert as one who has skilled experience, or extensive knowledge in his calling, or in any special branch of learning. We perceive nothing in the power to look into an ordinary mirror and see the movements of persons therein reflected which calls for any expertness before the witness can be permitted to testify to what he saw. To say that .one in such case would have to he able to understand scientifically the laws and rules of angles, and refractions and reflections, or that he must have shown himself to have had long experience in looking in mirrors, as a predicate for his testimony, has no appeal to us. It is within the common knowledge of every individual that one can look into a mirror and observe the movements of other people, if they also move before the same mirror. In this case the state witness testified that, after appellant refused to sell him whisky because he was a stranger, witness went and got another person better known to appellant to go with him to appellant’s place. He said that he sent the other person in to make the purchase, and held a mirror in such position as that he could observe the movements of appellant and the other party. Prom this vantage point he saw appellant hand to said third party a bottle of whisky and receive from said third party the money therefor. We are not able to agree with appellant’s contention.

The motion for rehearing will be overruled. 
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