
    HUNTER v. STATE.
    (No. 8078.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.
    Rehearing Denied Feb. 13, 1924.)
    1. Witnesses <&wkey;255(l) — Permitting use of memorandum to refresh memory not erroneous.
    ■ It is not error to permit a witness to use a memorandum to refresh his memory.
    2. Criminal law &wkey;>l 144(12) — Bill of exception held insufficient to show prejudice in impeachment of witness.'
    Whether impeachment of a witness was prejudicial to defendant cannot be determined, where the exception complaining thereof does not contain a statement of the evidence given by the witness and the presumption in favor of the correctness of the lower court’s ruling must prevail.
    3. Criminal law &wkey;>1129(1)— Bill of exception held not to disclose error.
    In a prosecution for the sale of intoxicating liquor, a bill of exception, stating that a witness, when asked what he did, replied that he and another went to a certain café and took a glass of milk to counteract the effects of drinks taken, held) not to disclose material error, in the absence of showing of surrounding facts.
    4. Criminal law <©=>459 — Testimony liquor was whisky not inadmissible, though a conclusion.
    In a prosecution ' for sale of intoxicating liquor, testimony of a witness that he purchased “nothing but whisky” from defendant held not inadmissible, though a conclusion.
    5. Intoxicating liquors ¡&wkey;239(I) — Instruction as to illegality of indirect sale held not prejudicial.
    In a prosecution for the sale of intoxicating liquor, an instruction stating that it was unlawful for any person “directly or indirectly” to sell intoxicating liquor held not prejudicial in the use of the word “indirectly” as an implication that there was evidence of an indirect connection with the sale opposed to the defense of alibi.
    On Motion for Rehearing..
    6. Intoxicating liquors <&wkey;223(l) — Proof of negative averments of indictment unnecessary.
    The unnecessary averment in an indictment that liquor was not sold for medicinal, mechanical, scientific, or sacramental purposes does not render it necessary for the state to prove such negative allegations; the burden of proving the sale legal, if so, being upon defendant.
    Appeal from District Court, Jefferson County; Geo. C. 0'’Brien, Judge.
    Billie Hunter was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    F.. G. Vaughn, of Port Arthur, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of one year.

Without stating it in detail, the state’s evidence, if believed, shows that the appellant sold to W. M. Stanley, Jr., intoxicating liquor containing about 50 per cent, of alcohol. The appellant’s testimony presents the theory of alibi. The issue of the appellant’s identity as the offender has been settled against him by the verdict of the jury upon competent and direct evidence.

There was no error in permitting a witness to use a memoranda to refresh his memory. Moreover, the bill does not reveal the testimony given by him.

A witness for the appellant was asked on cross-examination if he had not been convicted of violating the so-called Volstead Act, to which he replied in the negative, but admitted that he was charged with such violation. The bill containing no statement of the evidence given by the witness, leaves this court without information upon which to determine whether the impeachment of the witness was prejudicial to appellant. In the absence of such statement in the bill, the presumption in favor of the correctness of the court’s ruling must prevail. Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112; Vernon’s Tex. Crim. Stat. vol. 2, p. 537, note 21.

The witness Powell was asked by the state’s, attorney to state what he did. He replied that he and Stanley went to a certain café and took a.glass of milk to counteract the effect of the drinks taken. None of the surrounding facts are set out, but if all of the record is considered in aid of the bill,. no material error is perceived, for the reason, among others, that the evidence is sufficient to show guilt, and the minimum punish-' ment was assessed.

The complaint that when Stanley was asked if he bought anything from the appellant he replied, “Nothing but whisky,” is without merit. Especially is this true when it appears, without dispute and without objection, that the article purchased from the appellant by Stanley was shown to contain a high percentage of alcohol and to he usable as a beverage. The idea advanced is that the statement of the witness that the article was whisky was a conclusion. The witness described the liquid which the appellant sold to him. His conclusion that it was whisky was competent. Cathey v. State (Tex. Cr. App.) 252 S. W. 534.

In its charge, the court used this language:

“ * * * Our Penal Code provides it to be j unlawful for any person, directly or indirectly, to sell, * * * spirituous, vinous, and intoxicating liquors, * * * not for medicinal, mechanical, scientific, nor sacramental purposes.”

Appellant complains of the use of the word “indirectly,” asserting it to be misleading in that all of the evidence of the state to the effect that the appellant in person sold and delivered the whisky to the purchaser, and the implication in the charge that there was evidence of an indirect connection with the sale, which might justify conviction, being opposed to the defense of alibi, was calculated to mislead the jury. The objection urged against the charge of the trial court was that it was directing the jury to find the defendant guilty of selling intoxicating liquors indirectly. That part of the charge of the court which submits the issue to the jury for finding bears no such interpretation. It reads thus:

“Bearing in mind the foregoing instructions, you are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant Billy Hunter did on or about the 11th day of February, A. D. 1922, in Jefferson county, Tex., unlawfully, and not for medicinal, mechanical, scientific, nor sacramental purposes, sell spirituous liquors capable of producing intoxication to one W. M. Stanley, Jr., as charged in the bill of indictment, you will find him, the said defendant, Billy Hunter, guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for any period of time not less than one year nor more than five years; and if you do not so believe from the evidence beyond a reasonable doubt, you will find the defendant, Billy Hunter, not guilty.”

Following the paragraph quoted was the charge on alibi, which concluded with these words:

“Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed, (if committed) at the time of the commission thereof, you will find him ‘not guilty.’ ”

Considering the charge in its entirety and in the light of the record, the opinion is expressed that it must have made clear to the jury that unless the appellant was present and made the sale in person, an acquittal should result.

The judgment is affirmed.

On Motion for Rehearing.

The unnecessary averment in the indictment that the liquor was not sold for medicinal, mechanical, scientific, or sacramental purposes did not render it necessary that the state make proof of these negative allegations. .Such was the rule at a time when the law required such averments. Robert v. State, 90 Tex. Cr. 135, 234 S. W. 89. The purpose for which the liquor was sold being peculiarly within his knowledge, the burden was upon the appellant to introduce sufficient evidence on the subject to raise in the minds of the jury a reasonable doubt as to whether his purpose was a lawful one. Underhill on Crim. Ev. (3d Ed.) § 52, p. 51, notes 26, 27, and 28. See, also, cases collated in Robert v. State, supra.

The motion is overruled. 
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