
    HAWTHORNE v. STATE.
    (No. 9926.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.)
    1. Vagrancy <&wkey;>3 — Evidence of liquor sales held sufficient to support conviction for vagrgncy (Vernon’s Ann. Pen. Code 1916, art. 634, subd. [e]).
    Positive proof of one sale of intoxicating liquor and almost positive testimony of another, with circumstantial evidence that accused was illegally engaged in selling such liquor, held sufficient to support conviction for vagrancy, under Vernon’s Ann. Pen. Code 1916, art. 634, "subd. (e).
    2. Criminal law t&wkey;=> 1169(5) — Admission of search warrant and affidavit, in prosecution for vagrancy, held not prejudicial, where court subsequently excluded same.
    Admission of search warrant and affidavit, in prosecution .for vagrancy, held not prejudicial, where it was subsequently excluded, and several witnesses had referred to-warrant without objection, warrant itself was objected to only on ground that it was defective in certain details, and court instructed jury not to regard excluded evidence.
    Appeal fro-m Wichita County Court, at Law; C. M. McFarland, Judge.
    ■ Laura Hawthorne was convicted of vagrancy, and she appeals.
    Affirmed.
    Mathis & Caldwell, of Wichita Falls, for appellant. .
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry,' Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Conviction in the county court of Wichita county at law of the offense of vagrancy; punishment, fine of $50. Appellant. was charged with vagrancy under the terms of subdivision (e) art. 634, Vernon’s P. C. The question of her guilt, both in testimony and as submitted in the charge of the court, was of that character made by the second clause in said subdivision; i. e., that she was a person who unlawfully sold vinous, alcoholic, malt, intoxicating, and spirituous liquors.

The state proved' one direct sale for $7.20 of 24 bottles of liquor containing 3.41 per cent, of alcohol by weight and 4.27 percent. of alcohol by volume; also the witness who so. testified went on another occasion to appellant’s house with another party, who went in and “came out with something in a sack; * * * there were bottles in the sack.” Another witness swore that he lived' near appellant, and that on the date charged he saw many automobiles, some at night and .some in the afternoon, going up and down the .alley where appellant’s house was. These cars would be parked in the alley; their lights turned out. S'ome time there would be half a dozen cars in an hour. Witness would see the parties going into appellant’s house. He would hear these cars after he had gone-to bed; some as late as 3 o’clock in the morning. This had been going on for two weeks.. The ease was submitted to the jury as one on circumstantial evidence, and we are not able to agree with appellant’s contention that the-verdict is without support. We are not unmindful of what was said in Ex parte Oates, 238 S. W. 930, 91 Tex. Cr. R. 79, and, if no-proof appeared herein save that of one sale, we would not hesitate to reverse the case for lack of testimony, but there being proof positive of one sale, ■ and almost positive testimony of another and other circumstances supporting the view that appellant was illegally engaged in selling such liquor, we hold as above stated.

A search warrant and affidavit were-admitted in eyidence and thereafter excluded’ by the court. We find nothing in this action reasonably .calculated to injure the rights of .appellant. ■ Reference to such search warrant, etc.,- was made by several witnesses, apparently without objection. When offered in evidence appellant objected to same only on the ground that.it was defective in what were deemed certain necessary details. • When the court excluded said search warrant and affidavit, he instructed the jury not to regard same; and, after the jury were so charged, appellant presented a peremptory instruction for acquittal, which was refused. We see no error in this action. There are only two bills of exception in the record which present the two complaints just discussed.

Finding no error in the record, the judgment will be affirmed. 
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