
    ROSS v. STATE.
    (No. 7426.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1922.)
    1. Indictment and information <&wkey;l37(7) — Motion to quash properly overruled, where defective count dismissed.
    Where of two counts in an indictment charging the sale of intoxicating liquor, the second charged a person other than accused with the commission of a similar crime, and the state’s motion to dismiss the second count was sustained, a motion by accused to quash the indictment was correctly overruled, where the first count was sufficient.
    2. Criminal law <&wkey;304(20) — Proof of sale of corn whisky supports charge of sale of spirituous liquor in view of judicial notice of intoxicating quality.
    It is judicial knowledge that whisky is intoxicating, and hence, where the indictment charged the sale of “intoxicating spirituous liquors” and the proof showed accused sold “corn whisky,” a charge submitting to the jury the guilt of accused as depending on their belief that he sold “spirituous liquors” was not reversible error.
    3. Criminal law <&wkey;720¡/2 — Remark fay prosecution that accused “is as guilty as Cain” held not reversible error.
    A remark by prosecuting attorney, in his argument to jury in prosecution for sale of intoxicating spirituous liquors, that accused “is as guilty as Cain,” held not reversible error.
    4. Criminal law <&wkey;369(6) — Proof of offense other than one charged held reversible error.
    In a prosecution for the sale of intoxicating liquors, proof over objection of sale of whisky an hour before the offense alleged in the indictment and to a different person, and before accused offered any proof in his own behalf, and prior to his cross-examination of' state’s principal witness, held reversible error, where proof of the independent transaction did not come within any of the exceptions to the rule regarding proof of offenses other than the one on trial.
    ©=»For other eases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Earl Ross was convicted of selling intoxicating liquors, and he appeals.
    Reversed and remanded.
    McLean, Sco.tt & McLean and Baskin, Eas-tus & Greines, all of Fort Worth, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

A motion to quash the indictment was correctly overruled. There are two counts in the indictment, and by some inaccuracy the second count charged a different person than appellant with the commission of a similar crime. The state moved to dismiss the second count, which motion was sustained. The first count in the indictment was sufficient.

The indictment charged the sale of intoxicating spirituous liquor. The proof showed without dispute that the liquor, if any, sold by appellant was corn whisky. This ■court has held as a matter of judicial knowledge that whisky is intoxicating. It is spirituous liquor. The charge of the court submitted to the jury the guilt of appellant as dependent upon their belief that he had sold spirituous liquor. In our opinion the charge should more properly have followed the description of the liquor as laid in the indictment.

We would not be inclined to hold that the statement of the assistant county attorney, in his argument to the jury, that the defendant is as guilty as Gain, would be cause for reversal. While it is held that the attorney for the state should not express his individual opinion as to the guilt of the accused, we know of no case in which a violation of this rule, where the language used was no stronger than that appearing in the instant case, has been held to be cause for reversal.

While the state was developing its case in chief, and before any proof had been adduced in behalf of appellant, and before his attorneys had cross-examined the principal state witness, proof was made over the objection of the appellant of the fact that, about an hour prior to the sale alleged, appellant sold a bottle of whisky to a different person than the one charged in the indictment. It is stated in the bill of exceptions, which is approved by the trial court without qualification, that said sale so proven was a separate and distinct transaction from that involved in the charge in the instant case. The admission of such proof was error under all of the authorities known to us. It could not be claimed by the state that the introduction of this testimony .comes within any of the exceptions to the rule regarding proof of other offenses than the one on trial, for no theory of the defense had been advanced or was in the case when this proof was made. Many authorities are cited in Branch’s Ann. Jt\ O. § 166, demonstrating the uniformity of the rule rejecting evidence of separate and distinct transactions, unless there be a situation developed which permits the introduction of such testimony under one of the well-known exceptions.

For the error in the introduction of said testimony, the judgment of the trial court will be reversed, and the cause remanded.  