
    NEWTON v. STATE.
    (No. 7235.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.)
    1. Intoxicating liquors <©=>132 — State law not in conflict with National Prohibition Act.
    The state law prohibiting the possession of intoxicating liquor for the purpose of sale is not in conflict with the Volstead Act.
    2. Criminal law <©=»! 141 (2)— Court cannot infer prejudicial error.
    The appellate court cannot infer prejudicial error where there is nothing in (¡he bill of exceptions showing facets or circumstances that would render testimony elicited on the cross-examination of defendant inadmissible.
    3. Witnesses <®=>345(l) — Question on cross-examination as to indictment for false swearing within six years not objectionable as too remote.
    In a prosecution for the unlawful possession of intoxicating liquor, a question asking defendant on cross-examination if he had not been indicted for false swearing within the past six years was not objectionable as relating to a matter too remote.
    4. Witnesses <©=>345(1) — Cross-examination as to complaint against defendant for felony improper where ample time has elapsed without return of indictment.
    In a prosecution for unlawful possession of intoxicating liquor, a question asked of defendant on cross-examination as to whether he had not been charged in justice court by a complaint for- arson was improper, the objection being that the matter inquired about was too remote, and that five grand juries had met and adjourned without returning a bill of indictment, under the rule that, when a party is charged with, a felony by complaint only, and sufficient time has elapsed for an indictment, and none has been presented, proof that such complaint was made is not admissible to impeach him.
    5. Criminal law <©=>1091 (() — Bills of exception must show facts on which objections grounded.
    Bills of exception cannot be considered where they contain nothing to show the truth of the facts stated in the grounds of objection.
    6. Intoxicating liquors <©=>233(1) — Testimony of offer of drink admissible to show possession.
    In a prosecution for the unlawful possession of-liquor for sale, evidence that defendant wanted a state witness to drive him into the country, and that he offered such witness a drink if he would take him, was admissible as tending to show defendant’s possession of the wherewithal.
    7. Criminal law <§=>419, 420(6) — Testimony that person since deceased claimed ownership of liquor hearsay.
    In a prosecution for the possession of liquor for sale, testimony that a person since deceased told witness that he was the owner of the liquor in question was properly rejected as hearsay.
    8. Intoxicating liquors <©=>139 — Instruction defining “possession” correct.
    An instruction in a prosecution for possession of liquor for sale that “possession” means the having personal charge of and exercising the right of ownership and control of the liquor in question embraced a correct definition.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Possession.]
    9. Criminal law <®=>780(l) — Instruction on accomplice required where offense committed prior to law exempting participant in liquor violation from being accomplice.
    In a prosecution for the possession of intoxicating liquor, for sale, where one of. the witnesses for the state admitted in his testimony that he had been indicted for the same transaction for which defendant was being tried, and admitted his participation in the transaction, the same having taken place prior to the amendment to the Dean Daw (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.) exempting a liquor violator who testifies for the state from being an accomplice, it was error for the trial court to refuse an instruction that such witness was an accomplice.
    10. Criminal, law <©=>814(17) — Instruction on circumstantial evidence erroneously refused.
    In a prosecution for possession of liquor for sale, where the testimony in behalf of the state showed that the liquor was found in a sack under the seat of the automobile in which defendant was riding, only one bottle being found in defendant’s pocket, and the driver of the ear, testifying for the state, said that he did not know who put the liquor in the car or how it came there, and the possession by defendant of any liquor other than the bottle found in his pocket being inferable only from circumstances, it was error to refuse a charge on the law of circumstantial evidence.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Bill Ike Newton was convicted of the possession of intoxicating liquor for sale, and he appeals.
    Reversed and remanded.
    R. E. Bozeman, of Quitman, and Jones & Jones, of Minneola, for appellant.
    W. A. Keeling, Atty. Den., and C. D. Stone, Asst. Atty. Gen., for the State.
   BATTIMORE, J.

Appellant was convicted in the district court of Wood county of the possession of intoxicating liquor for the purpose of sale, and his punishment fixed at two years in the penitentiary.

Appellant moved to quash the indictment because the law under which same was drawn was in conflict with the Volstead Act (41 Stat. 305). The motion was properly overruled. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

Appellant asked for a continuance because of tbe absence of three witnesses. Tbe bill of exceptions shows that two of them appeared during the trial, and in our opinion the testimony of the third is not material.

By bill of exceptions appellant complains that while he was on the witness stand he was cross-examined to know if he had not sworn that one Dr. Paulk fixed up a bottle of liniment, and that the testimony was different from the statements in his application for continuance herein. There is nothing in the bill of exceptions showing the surroundings or conditions that would render this testimony inadmissible, and we cannot infer injury.

A question to appellant while on the witness stand if he had not been indicted for false swearing within the past six years was not open to objection that same related to a matter too remote. Bibb v. State, 86 Tex. Cr. R. 112, 215 S. W. 312.

Appellant was asked if he had not been charged in the justice court by a complaint for arson. Objection was made to this that the matter inquired about was too remote, and that five grand juries had met and adjourned since, and no bill of indictment had been returned. The objection was well taken. The testimony should not have been admitted. It is held by this court that, when a party is charged with a felony by complaint only, and sufficient time has elapsed for an indictment and none has been presented, proof that such complaint was made is not admissible to impeach him. King v. State, 67 Tex. Cr. R. 63, 148 S. W. 325; Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105; Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 362.

We cannot consider appellant’s bills of exception Nos. 7 and" 10 because there is nothing in either to show the truth of the facts .stated solely as grounds of objection.

Proof of the fact that appellant wanted a state witness to drive him out in the country, and. that he offered said witness a drink if he would take him, would be admissible. One of the facts necessary to sustain the charge of possession of liquor for purposes of sale is proof of the possession of such liquor. The offer of a drink would strongly suggest appellant’s possession of the wherewithal to make good the offer.

Testimony that Tom Painter, now deceased, told a witness that the liquor in question was his, was properly rejected. Same was hearsay. Walsh v. State, 85 Tex. Cr. R. 208, 211 S. W. 241: Staton v. State (Tex. Cr. App.) 248 S. W. 359.

We know of no authority holding it proper to ask a witness the question if "he knows tbe good or bad reputation of a .party, for being a violator of the. liquor laws.

We think the court’s definition of possession, as applicable to this offense, viz. that It meant having personal charge of and exercising the right of ownership and control of the liquor in question, presents no érror.

Appellant excepted to the failure of the court to instruct the jury that state witness Rhodes was an accomplice, and also presented a special charge asking that the jury be informed that such law was applicable to his testimony. We observe in the testimony of said witness Rhodes an admission on his part that he was indicted for this transaction in which appellant was involved. He admitted that he drove the car from Alba, in Wood county, out to the place where the liquor seems to have been obtained; that he saw the sack in which the liquor was afterwards found between the seats of his car when they left said place; that he heard appellant and Tom Painter discussing the getting of the liquor as they went out to said place; that after the liquor in question was found in the car that he, witness, broke a bottle and a jar of it. This transaction took place in May, 1921, prior to the enactment of the amendment to the Dean Daw (Vernon’s Ann. Pen. Code Supp. 1922, art. 588⅛ et seq.), and must be tried under the law as it was at that time. The law- exempting the purchaser, transporter, etc., who testified for the state from being an accomplice had not been enacted at the time of this transaction. (Numerous authorities in this state hold that a witness who has been indicted for the same offense and turns state’s evidence occupies the attitude of an accomplice witness. Hinds v. State, 11 Tex. App. 238; Herring v. State (Tex. Cr. App.) 42 S. W. 301; Oats v. State, 48 Tex. Cr. R. 131, 86 S. W, 769; Saye v. State, 50 Tex. Cr. R. 569, 99 S. W. 551. We are of opinion that the trial court' erred in not instructing the jury that the witness Rhodes was an accomplice.

There is also serious complaint of the fact that the court refused to submit the law of circumstantial evidence. In this also we think' the learned trial judge in error. Rhodes testified that he drove his car on the date in question out to the home of Mrs. Mathews and drove it up to the side of the house. He sat on the porch for 10 or 15 minutes. When they left the Mathews place he observed something in a sack between the seats. They met the officers who stopped the car and searched it and found liquor in the. sack and under the seat and a bottle in appellant’s pocket. Rhodes said he did not know who put the liquor In the car or how it came in there. Appellant denied any guilty connection with it and asserted that Tom Painter, who seems to be now dead, put it in there. The possession by appellant of any other liquor save that" of the bottle found in his ppcket is inferable only from the circumstances. In our opinion the law of circumstantial evidence should have been submitted.

For the errors mentioned, the judgment of the trial court must be reversed, and the cause remanded. 
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