
    VECERA v. STATE.
    (No. 12865.)
    Court of Criminal Appeals of Texas.
    Dec. 4, 1929.
    Arrington & Johnson, of Mineral Wells, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor; punishment being one year in the penitentiary.

The indictment contained two counts. The first charged a sale of intoxicating liquor to one Craig; the second charged possession, of intoxicating liquor for the purpose of sale. No evidence whatever was offered by appellant. In submitting the case to tbe jury the court withdrew the second count from their consideration.

The facts, briefly stated, are as follows: Craig and Eennigan were Federal prohibition officers. In company with one Sanders, they went to appellant’s residence about 9:45 o’clock at night. Besides appellant, there were present his son Joe Vecera, and some other members of appellant’s family. Craig asked appellant if he liad any liquor, to which he replied, “Peppermint and banana whisky.” Craig chose the peppermint. Joe Vecera left the room and presently returned with a pint of whisky and delivered it to Craig, who gave Joe a dollar and a half for it, and Joe in turn handed the money over to appellant. After Craig, Eennigan, and Sanders had taken a drink, Joe brought in a pint of banana whisky, and Craig also bought it, again giving the money to Joe, who handed it to appellant. Some beer was also purchased by some of the parties on this same trip.

Bills of exception 1, 2, 3, and 4 complain because the state was permitted to show the purchase of the banana whisky and the beer, on the ground that they were separate transactions from the alleged sale of the peppermint whisky. The court qualified the bills with the statement that evidence- of these other sales was admitted on the second count of the indictment, and because it was res gestee. All of the spies occurred during one visit, and in a sense it was a continuous transaction. There can be no doubt as to the admissibility of the evidence complained of under' the second Count of the indictment. When the court submitted only the first count, appellant should have requested the withdrawal of all such evidence as might have been pertinent to the second count only, and should have asked that the state be required to elect as between, the sales.

No merit is discovered in appellant’s exception to the instructions given the jury, and the special charge requested appears to have been upon an issue not raised by the evidence.

The judgment is affirmed.  