
    PETTY v. STATE.
    (No. 11307.)
    Court of Criminal Appeals of Texas.
    Jan. 18, 1928.
    Rehearing Denied Feb. 29, 1928.
    1. Criminal law <&wkey;600(3) — After admitting-truth of facts proposed to be proved' by absent witness to prevent continuance, state cannot contravene truth thereof.
    Where defendant presents an application for continuance for want of the testimony of an absent witness and state’s counsel admits the truth of the facta proposed to be proved by said witness in order to avoid the continuance, it is not permissible for the state subsequently to contravene the truth thereof on the trial of the case.
    2. Intoxicating liquors &wkey;>224 — Burden was on state ten show accused possessed intoxicating liquor for sale.
    Burden was on state to show that accused possessed intoxicating liquor for purpose of sale.
    3. Intoxicating liquors <&wkey;235 — Accused may show legality of possession of more than quart of intoxicating liquor; “prima facie evidence” (Pen. Code 1925, arts. 668, 671).
    Though under Pen. Code 1925, art. 671, possession of more than a quart of intoxicating liquor is prima facie evidence of the possession thereof for purpose of sale, accused may show the legality of his possession by proof that he possessed liquor for medicinal or other legal purposes under article 668, since “prima facie evidence” is merely proof on which jury may find a verdict and is not conclusive.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Prima Facie Evidence.]
    4. Crimina! law <&wkey;600(3) — Jury were bound to accept truth of state’s admission, made to avoid continuance that whisky was necessary medicine for accused's wife.
    Where, in order to avoid continuance applied for by accused for want of testimony of absent witness, state admitted that whisky was a necessary medicine for accused’s wife and that accused had been advised by physician to keep whisky in his home for her use, such admission was conclusive as to the facts embraced, and state could not controvert it, and jury were bound to accept it as true.
    5. Criminal law <&wkey;>1037(2) — In absence of objection to improper argument of county attorney or request for instruction to disregard it, no error was presented for review.
    Where accused failed to object to improper argument of county attorney and made no request that jury be instructed to disregard it, bill of exception thereto presented no error requiring appellate review.
    
      6. Criminal law &wkey;720(3)— County attorney’s argument whisky was not required as medicine, admitted true on continuance motion, held1 reversible error.
    Where state, in order to avoid continuance to procure testimony of absent' witness, admitted that whisky was necessary as medicine for accused’s wife, statement by county attorney in his argument scoffing at the idea and charging that such defense was fabricated, helé highly improper, and would have constituted reversible error if objection had been properly made and preserved.
    On Motion for Rehearing.
    7. Criminal law <&wkey;600(3) — -That fact admitted by state to avoid .continuance was proved by another witness of defendant did not entitle state to controvert truth thereof.
    Where state, to avoid continuance because of absence of certain witness, admitted truth of certain fact relied on as a defense, that defendant proved such fact by another witness did not operate to nullify state’s admission on which the continuance was refused so as to authorize state to controvert truth of fact admitted.
    8. intoxicating liquors <3=236(61/2) — Evidence held insufficient to support conviction for possessing intoxicating liquor for sale.
    In prosecution for possessing intoxicating liquor for purpose of sale, evidence AeW insufficient to support conviction.
    9. Criminal law <3=1192 — State's admission of certain facts to avoid continuance would not operate on another trial.
    State’s admission of the truth of certain facts sought to be proved by absent witness in order to avoid continuance would not operate in another trial.
    Commissioners’ Decision.
    Appeal from District Court, Dawson County ; Gordon B. McGuire, Judge.
    J. O. Petty was convicted of possessing intoxicating liquor for purpose of sale, and lie appeals.
    Reversed and remanded!
    Lockhart & Garrardl and E. D. Brown, all of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for four years.

Appellant sought a continuance because of the absence of Dr. A. W. Thompson. In order to avoid the continuance, the state made the following admission:

“Now comes the state by her district attorney and admits that,.if the said Dr. A. W. Thompson were present he would testify that he had at various times prescribed whisky for the defendant’s wife and for this defendant, and that said whisky was a necessary medicine at all times for defendant’s wife and was necessary as a medicine for the defendant himself at the various times prescribed, and as the physician of this defendant’s wife he has advised that whisky be kept in this defendant’s house at all times for the use of this defendant’s wife, and that said testimony is true.”

Where defendant presents an application for a continuance for want of the testimony of an absent witness, and state’s counsel admits the truth of the facts proposed to be proved by said witness, it is not permissible for the state to subsequently contravene the truth thereof on the trial of the case. Branch’s Annotated Penal Code, § 325, p. 191; Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614. Also the jury are bound by the admission, and must consider the testimony of the absent witness to be true. Underhill on Criminal Evidence (3d Ed.) § 425. The burden rested upon the state to show that appellant possessed intoxicating liquor for the purpose of sale. In attempting to discharge such burden, it was shown that appellant possessed more than a quart of whisky, which had been discovered by officers in his home. There was no evidence of either a sale or of an attempted sale of whisky. Proof of possession of more than a quart of intoxicating liquor is prima facie evidence of possession thereof for the purpose of sale. Article 671, P. C. 1925. “Prima fade” evidence is merely proof upon which the jury may find a verdict, and is not conclusive. Walden v. State, 100 Tex. Cr. R. 584, 272 S. W. 139. Although possession of more than a quart of intoxicating liquor is prima facie evidence of the possession thereof for the purpose of sale, the accused may show legality of possession. Caldwell v. State, 105 Tex. Cr. R. 503, 289 S. W. 411. Possession of intoxicating liquor for medicinal purposes is lawful. Article 668, P. C. 1925. Appellant defended on the ground that he possessed the liquor in question for medicinal purposes. As stated, the state admitted that whisky was a necessary medicine at all times for appellant’s wife, and that he hadl been advised by his physician to keep whisky in his home at all times for her use. This admission was conclusive as to the facts embraced. The state was not authorized to controvert it. The jury were bound to accept it as true. In this condition of the record the admission controverted the prima facie case arising from the possession of more than a quart of whisky. This is not to say that the state would, on another trial, be bound by the admission made on the present trial.

In his argument, the county attorney scoffed at the idea that appellant’s wife required whisky as a medicine, and, in effect, charged that appellant’s defense was fabricated. The qualification appended to the bill of exception preserving the complaint lodged against the argument shows that appellant failed to object to the argument and made no request that the jury be instructed, not to consider it. In this condition of the bill no error is presented. However, the argument was highly improper and would have constituted reversible error if complaint had been made at the time and properly preserved by bill of exception. In the face of the admission here-inbefore discussed, it was improper and prejudicial for the county attorney to controvert in argument or otherwise the facts embraced in said admission.

The judgment is reversed and the cause remanded.

PER CUKIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Eehearing.

MORROW, P. J.

To avoid a continuance because of the absence of Dr. Thompson, the state admitted as true that whisky was necessary as a medicine at all times for the defendant and his wife, that it had been prescribed by a physician for the defendant’s wife, and advice given that it be kept at all times in the home of the defendant. By making this admission, the state was able to force the defendant to trial. If the admission had not been made, it would have been necessary to have continued the case. The state, thereby having obtained the advantage, was in no position to controvert a fact which it had admitted to be true. On the subject, Mr. Under-hill, in his work on Criminal Evidence (3d Ed.) § 425, deduces from many precedents whic-h are cited, the following:

“The statements go to the jury as true, and it is their positive duty so to regard them. They are not open to contradiction. * . * * The state must admit the truth of the evidence absolutely.”

See Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614; Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1094; Sutton v. State, 76 Tex. Cr. R. 70, 172 S. W. 791; Brown v. State, 76 Tex. Cr. R. 316, 174 S. W. 360; Medford v. State, 89 Tex. Cr. R. 1, 229 S. W. 504; Walker v. State, 90 Tex. Cr. R. 56, 232 S. W. 509.

In a bill of exceptions, complaint is made of the following argument of counsel for the state in his address to the jury:

“After he was under indictment for unlawfully handling liquor, he goes and hunts up that man, Dr. Tate, and gets him to go down there and come here and testify that he found his wife in a nervous condition and prescribed whisky for her. A horse doctor ought to know better. A highly stimulating intoxicant to a little woman under a high state of nervousness! When I heard that he had been in the ministry but wasn’t working at it now, I could understand why he quit preaching. He says Dr. Thompson told him to buy whisky for his wife, but he goes to Dr. Tate and gets him to prescribe for his wife whisky for a highly nervous condition. If that proves anything, gentlemen, it proves a general — a manufactured testimony in' this case to hoodwink * * * and escape the toils of the law. That’s' all it proves, just a multiplicity of protection,. And they have the gall and temerity to come before this jury and ask, because Dr. Thompson is sick, ⅜ * * and after he got in the toils of the law Dr. Tate came down here; * * * manufactured, untrue, for a foul purpose, to defeat the law. Who can question it? ”

In the motion for rehearing, counsel for the state advances the proposition that, in view of the fact that Dr. Tate, a physician, testified for the appellant that he had examined the appellant’s wife, had found her debilitated and nervous due to her change of life, and had prescribed whisky for her as medicine, that the state was privileged to controvert the truth of the admitted fact upon which the continuance was granted. The allowance of the bill makes it dear that the argument was made, but, as qualified, is equivocal touching an exception to the remarks at the time they were made. In view of the admission, it may have been unnecessary for the appellant to have proved by any other witness the illness of his wife or the necessity of the use of whisky- as medicine. The fact that it was proved by another witness would not operate to nullify the admission of the state upon which the continuance was refused. However, as stated in the original opinion, in view of the admitted truth of Dr. Thompson’s testimony on the present trial, the evidence is not deemed sufficient to support the verdict. The admission, of course, would not operate in another trial.

The state’s motion for rehearing is overruled. 
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