
    HOWARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Intoxicating Liquors (§ 146) — Wrongful Sale — “Sale”—Baktek.
    A loan of whisky to be returned in whisky is a sale within the act prohibiting the sale of intoxicating liquors in prohibition territory.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dee. Dig. § 146.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. S, p. 7793.]
    2. Witnesses (§ 268) — Cross-Examination.
    Where, in a prosecution for illegally selling intoxicating liquors, a witness for defendant testified that he borrowed a quart of whisky from accused and did not buy or pay for it at the time, the county attorney could ask him on cross-examination if he did not give accused a dollar for it when he got the whisky, and whether the dollar he then gave him had not been sent by witness’ brother by him to be paid to accused on a debt, as witness testified.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    
      3. Witnesses (§ 398) — Gross-Examination— Contradiction.
    Where a witness testified that he borrowed a quart of whisky from accused and did not buy or pay for it at the time, the county attorney, by cross-examining the witness as to his payment of a dollar to accused at the time he got the whisky, did not make the witness his own, so as to deprive him of the right to disprove the witness’ statement that the dollar that he paid accused at the time was not for the whisky, but to pay a debt of witness’ brother.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1267, 1274, 1275; Dee. Dig. § 398.]
    4. Criminal Law (§ 687) — Trial — Reception of Evidence — Reading to Jury.
    Where, in a prosecution for unlawfully selling liquor in prohibition territory, the state offered certified copies of the minutes of the commissioners’ court showing the taking of the necessary steps to put the law in force, and, after an objection that the copies were not the best evidence had been ovex-ruled, defendant waived the reading of the copies to the jury and consented that the jury might take them on retirement, and then, after the opening argument of the county attorney, defendant requested the court to charge the jury to acquit him because the state had failed to prove that the prohibition law was in force at the time of the sale, because the certified copies had not been read, it was within the discretion of the court to permit the reading at that time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622, 1625; Dec. Dig. § 687.]
    5. Intoxicating- Liquors (§ 39) — Wrongful Sale — Prohibition—Evidence.
    In a prosecution for selling intoxicating liquors in prohibition territory, the putting in force the prohibition within the territory may be proved either by the minute book, where the orders are entered in the minutes of the commissioners’ court, or by properly certified copies thereof.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 33; Dec. Dig. § 39.]
    6. Criminal Law (§ 858) — Trial—Reception of Evidence, — Taking Evidence to Jury Room.
    In a prosecution for selling intoxicating liquors in prohibition territory, the jury were authorized under Code Cr. Proc. 1911, art. 751, to take certified copies of the orders putting-prohibition in force in the territory which had been in evidence with them on retirement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2056-2059, 2062; Dec. Dig. § 858.]
    7. Intoxicating Liquors (§ 131) — Wrongful Sale — Prohibitive Sale.
    Intent is not an essential element of the offense of unlawful sale of intoxicating liquor in prohibition territory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 140, 161; Dec. Dig. § 131.]
    8. Criminal Law (§ 912½) — Motion for New Trial — Grounds—Right to Allege Error.
    An objection that the sheriff was not sworn before he summoned one talesman, and that such talesman completed the jury and sat in the case, could not be made for the first time on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Dig. § 912½.]
    Appeal from Madison County Court; J. M. Brownlee, Special Judge.
    Robert Howard was convicted of the unlawful sale of intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    O. B. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRBNDERGAST, P. J.

From a conviction for unlawfully selling intoxicating liquors in prohibition territory, appellant was assessed the lowest punishment — a fine of $25 and 20 days in jail.

The uncontradicted evidence by appellant himself and the only two witnesses who were introduced showed that on the date charged appellant came from Madisonyille in Ms wagon, passing where the other two witnesses were, and that he had gotten at Madisonville and had with him at the time some whisky. Frank Dowell, one of these witnesses, testified that when appellant approached them he asked him if he had “anything.” - Appellant replied, “Yes.” The witness asked him if he could get some. He replied, “I don’t know; I reckon so.” The witness then told appellant he wanted some for a sick man, telling who it was. He then said: “We (meaning himself and the other witness, Allphin) then got in appellant’s wagon and rode down the way a piece with him.” The witness said: “I told the defendant that I would have a shipment in in a few days, that I had ordered some, and that when it came I would pay him back with a quart of mine. He handed me a quart of whisky. I did not pay the defendant one cent for what whisky I got from him. What I got from him I borrowed intending to pay it back when mine came in that I had ordered.” That Allphin then spoke to Mm and told appellant that he wanted a quart. Appellant said the whisky cost him a dollar a quart at the bar. He then handed Allphin a quart, and Allphin handed Mm a dollar.

The appellant himself testified substantially as did said witness Dowell, except that he said he did not say that he paid a dollar a quart for the whisky at the bar, and he further said that Allphin borrowed the quart of whisky that he, Allphin, got and was to return to him in the place of it another quart when his came in. And, further, that while Allphin did give Mm a dollar at the time that he told him that it was a dollar owed appellant by AllpMn’s brother; and he had sent the money to him. The appellant then introduced said Allphin, who substantially corroborated appellant’s statement. In other words, appellant testified that on said occasion he loaned each of those witnesses a quart of whisky, each to return, in place of it, a quart when they got their whisky. Allphin testified to the same thing. The difference between them was that Dowell testified that appellant at the time sold to Allphin the quart of whisky Allphin got from him and paid a dollar for it. Allphin and appellant claimed that he didn’t sell it to him at the time, bnt that the dollar was a dollar his brother owed appellant and sent to him at the time. They all testified that neither witness repaid to appellant the quart of whisky each got from him at the time. They offered to do so but appellant refused to accept it under advice after this prosecution was begun. In any and every contingency, under the law of this state, even if appellant only loaned to Allphin the whisky, which was to be paid back in whisky, this was a sale in violation of the prohibition law. Morris v. State, 64 Tex. Cr. R. 499, 142 S. W. 876.

Allphin, appellant’s witness, in his direct examination in effect testified that he borrowed a quart of whisky from appellant and did not buy it or pay for it at the time. On cross-examination, the county attorney had the right to ask him if he didn’t give appellant a dollar for it at the time he got the whisky; and then to cross him further with a view of showing that he paid that dollar for the whisky, and that that dollar was not sent by his brother by him to appellant All this was proper cross-examination.

By this cross-examination the state did not make the witness Allphin its witness, and it was not bound by his answers, but the state could disprove them as it did by the other witness.

By other bills it is shown that when the state was first making out its case, in order to show that the prohibition law was in force in Madison.county, it produced and offered in evidence certified copies of the minutes of the commissioners’ court, showing all the necessary things to show that the law was in force. At the time the appellant objected to the certified copies, contending that the records themselves were the best evidence. • The court overruled this objection. The copy was not read to the jury at the time, because, as the court says in qualifying the bill, the defendant waived the reading of it and consented that the jury might take it with them in their retirement and deliberation of the case, which the jury did. That after the evidence was concluded the county attorney made and closed his opening speech. Appellant, by his attorney, thereupon requested the court to charge the jury to acquit the defendant because the state had failed to prove that the prohibition law was in force at the time of the alleged sale. Thereupon the court permitted the county attorney, at that stage, to read to the jury the said certified copy. Even if, under the circumstances, it had been necessary to read these orders to the jury before the argument began or the evidence closed, the court, under the statute and decisions, clearly had the discretion to permit it to be done at the stage he did, and by such permission, at that time, he did not abuse his discretion. O. C. P. art. 718.

Either the minute book, where these orders were entered in the minutes of the commissioners’ court, were admissible, or properly certified copies thereof. One was just as admissible as the other — made so by the statute. Clayton v. State, 149 S. W. 124. As we understand, there was no contention in the court below that these certified copies did not fully show a proper election for prohibition and all the other necessary orders, publication, etc., to put prohibition in force. The objections only were that the copies were not admissible, and that the county attorney didn’t have the right to read them to the jury after he had closed his opening argument.

The jury had the right to take with them, on retiring to consider their verdict, the certified copies of the said orders, which were used in evidence. C. C. P. art. 751. Besides, the appellant expressly agreed that they could do so. Hence their doing what the statute authorized them to do, and to which appellant agreed, was correct, and in no event is appellant’s complaint of this action error.

The court properly refused to give appellant’s special charge to the effect that if appellant had no intention of violating the local option law to acquit him. Intent has nothing to do with the violation of this law. A loan of whisky to be returned in whisky is a sale. Morris v. State, supra.

This case was tried October 15, 1913.. Two days later, for the first time, in his motion for new trial, appellant claimed that the sheriff was not sworn before he summoned one talesman, and that that talesman completed the jury and sat thereon. In hearing the motion for new trial the court heard evidence, and it is established that the sheriff had not been sworn before he summoned that talesman. He has no bill of exceptions on the subject. It is too late, after the trial, for the first time to raise any such question. If at the time the juror was summoned he had made any such objection, and he had saved his point by bill of exceptions, a different question would be presented. Doubtless if he had at that time made the objection, the court would have sustained the objection, sworn the sheriff, and had him to summon a talesman. No injury is shown to appellant by the failure of the court to swear the sheriff before he made this summons. Williams v. State, 29 Tex. App. 100, 14 S. W. 388; Adams v. State, 35 Tex. Cr. R. 296, 33 S. W. 354; Bizzell v. State, 162 S. W. 861, and cases there cited.

No other verdict, under the evidence in this case, should or could legally have been rendered than that of guilt under the appellant’s own testimony. His punishment was fixed at the lowest prescribed by law.

The judgment is affirmed.  