
    BIRD v. STATE.
    (No. 7323.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1923.
    Rehearing Denied June 20, 1923.)
    1. Criminal law @=3404(4) — 'Witnesses @=>269 —Testimony by purchaser that liquor was in quart jar held not to preclude admission in evidence or half-gallon jar and further cor- . recting testimony by the witness.
    In a prosecution for selling intoxicating liquor, testimony by the purchaser that the liquor was in a quart jar would not justify the rejection of a half-gallon jar offered in evidence or prevent further testimony by the witness that he had been mistaken in his previous testimony that it was a quart jar.
    2. Witnesses @=>345(2), 383 — Refusal to per. mit questioning of witness before jury as to an arrest 13 years prior held not error.
    In a prosecution for selling intoxicating liquor, refusal of the court to permit accused to ask a witness in the presence of the jury if he had not been charged by complaint with assault to rob some 13 years prior thereto held not error, where it appeared that the previous complaint had not proceeded to indictment, and, since the remoteness of the arrest rendered the testimony inadmissible, nor was such testimony admissible for the purpose of impeaching the witness in that he had the preceding day denied entirely having been' so arrested.
    On Motion for Rehearing.
    3. Criminal law <@=>507(1) —Witness held purchaser within meaning of statute.
    In a prosecution for selling intoxicating liquor, where one witness had testified that he purchased the liquor in the presence of another witness with money furnished in part by such other, held, that denial of an instruction on the law of accomplice testimony was not error, since both witnesses under Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3, were purchasers exempted from liability as' accomplices.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Arthur Bird was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    J. E. Taulbee, and Wilcox & Graves, all of Georgetown, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Williamson county of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The evidence is ample to support the verdict. Dave Queen testified that on Christmas night, 1921, he went with a Mr. Wininger in a car out to appellant’s place and there bought from him a certain quantity of whis-ky. He got from Mr. Wininger $4 to pay upon the purchase price thereof and himself put in $2. The fact of the sale and the testimony of these witnesses appears in no wise controverted.

Appellant has two bills of exception, one complaining because a certain jar, said to contain whisky, was introduced in evidence. While the state witness Queen was testifying, this jar was shown him, and he said it was the jar in which appellant delivered him the whisky he bought on the night in question; that he marked a. double “X” on top of the jar for identification and delivered same, with the liquor in it, to the sheriff of Williamson county. The fact that this witness had formerly stated that the jar he got was a quart jar, and when shown the jar in question he said it was a half-gallon jar, would not justify the rejection of said jar nor prevent further testimony of said witness that he had been mistaken when he formerly testified it was a quart jar. Contradictory statements of the witness might-be considered by the jury as affecting the weight of the testimony. It is agreed by both the state and appellant that the sheriff of the county, if present, would testify that the jar and its contents were delivered to him by the witness Queen, and that it was at the time of the trial in the same condition it was when delivered to him.

Complaint is also made of the fact that the court refused to allow appellant to ask the witness Wininger in the presence of the jury if he had not been charged by complaint with assault to rob some 13 years- prior to this trial. It appears from the bill of exceptions that when the question was half asked, ■the state’s attorney interrupted and stated to the court that he knew what appellant’s counsel was asking for, and in his opinion it was incompetent, and he asked that the jury be retired and the matter of the admissibility of the evidence determined in their absence. The bill of exceptions and the court’s qualification thereon shows that the jury were retired, and thereupon counsel for appellant stated that they wished to show by said witness that in 1909 he was arrested and charged by complaint with assault to rob; counsel stating at the time that they would not be able to show that withess was ever indicted for said offense. Thereupon they were informed by the court, because of the remoteness of said charge and the further fact that it was only by complaint and did not mature into an indictment, that in his judgment the evidence was inadmissible. Appellant’s counsel then stated that they wished to ask the witness about it in the presence of the jury and lay a predicate to prove that when testifying on the day preceding that of the instant trial, this witness had denied entirely having ever been so arrested. The court then informed appellant’s - counsel that in his opinion the matter referred to would be immaterial because of its remoteness, and in such case even if witness had denied it upon the preceding day and was now willing to admit that his testimony had been untrue in that regard, it was not competent to impeach a witness upon an immaterial matter. The court further told counsel for the appellant that if they desired to go further into this matter in the absence of the jury he would permit them, but they declined to further question the witness while the jury were in retirement, and when the jury were brought back they asked the witness no further questions.

We are unable to perceive any error in this action of the trial court. We deem it perfectly proper practice for either side to indicate that a proposed question, the answer to which might be prejudicial, is incompetent, and for the court of his own direction or at the request of such party to retire the jury and hear the matter in their absence. We do not believe that the state or the defendant should have its case prejudiced by the asking of questions which contain harmful and hurtful insinuations for no better reason than that it has the right to ask some question in the presence of the jury. We believe the trial court correct in his announcement that the remoteness of the arrest and charge in the complaint would render the testimony inadmissible ; and further conclude that this being true, the attempted predicate and impeachment of the witness was also improper.

The appellant asked the court below to submit to the jury the issue of accomplice testimony as applicable to the witness Win-inger. We are unable to comprehend just what theory this contention rests-on. Win-inger went to appellant’s home with Queen to get the liquor in question. He and Queen jointly contributed to make up the purse-which paid for the liquor. The purchaser of intoxicating liquor since the amendment to the Dean Law became effective November 15, 1921, is no longer an accomplice. We do not think any error appears from the refus-. al of said special charge.

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

On Motion for Rehearing.

HAWKINS, J.

Appellant admits that under new article 588% a3, Penal Code, Vernon’s 1922 Supp. (being section, 2c, Acts 37th Leg. [1921] c. 61, 1st C. S.), the witness Queen would not be held as an accomplice witness as he is the alleged purchaser; but insists that the witness Wininger does not come within the immunity specified in said provision of the law, and therefore as to him the court committed error in failing to charge on accomplice testimony. The article in question provides:

“Upon a trial for a violation of any of the provisions of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial.”

It may be admitted that unless Wininger comes within one of the classes of witnesses specified, but is otherwise brought within the compass of an accomplice witness, the law would require a charge upon the issue. The question is not controlled solely by the fact that the indictment alleges Queen to have been the purchaser, and not that he and Wininger were joint purchasers; but the solution must turn upon an inquiry as to what was Wininger’s true relation to the transaction. We think the fallacy of appellant’s position can be best demonstrated by looking at the situation from another angle. Suppose the purchaser of intoxicating liquor was himself guilty of an offense (as he was prior to the amendment of the Dean Daw), and the state was prosecuting Wininger as a principal in the purchase of the liquor in question; what chance would' he have to escape under the proven facts? He went with Queen to purchase the whisky, knowing at the time the purpose of the journey. He in person negotiated for the sale of the whisky, gave Queen $4 of the money to pay on it, was present when appellant delivered it to Queen, and saw the latter pay over the money a part of which was Wininger’s. If these facts do not bring him within the rule of a principal in the transaction, it would be difficult to conceive a case that would. If the purchaser could be prosecuted for making the purchase, and the facts bring Wininger in such relation to the sale that he could be convicted as a principal to the purchase, then we think it inescapable that the facts bring him within the class of “purchaser” under article 588!4a3 (supra) as much so as it did the witness Queen.

The motion for rehearing is overruled. 
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