
    BERRY v. STATE.
    (No. 7914.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1923.)
    1. Criminal law <®=oI 128(1) — Court looks only to bill of exceptions in determining questions of law presented.
    • In determining questions of law presented by bill of exceptions, the court looks only to the bills themselves and the narrative statement of facts on file with the record.
    2. Criminal law &wkey;>llll(5) — In case of discrepancy, bill of exceptions controls statement of facts.
    Where there is a discrepancy between the statement of facts and the bill of exceptions, both of which are approved by the trial judge, the court is bound by the bill of exceptions.
    3. Criminal law <&wkey;372(2) — Independent cash transactions inadmissible to show credit system.
    Where the state, attempted to show a credit system existing between defendant and prosecuting witness, in the sale and purchase of liquor, it was error to admit in evidence an independent cash transaction between the parties.
    <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      4. Criminal law <&wkey;783 (I) — Instruction that memorandum might be considered in showingt credit system not erroneous.
    Where defendant’s memorandum of liquor sales was introduced by the. state without ob-. jeetion by defendant, an instruction that, if the jury believed that the memorandum referred to liquor sales they might consider it as showing, if it did, a system in making sales of liquor, was not erroneous.
    5. Witnesses <&wkey;255 (4) — Writing held Improper as basis for refreshing recollection.
    A witness for the state, in a prosecution for unlawful sale of liquor, cannot, after examining a written memorandum to refresh his recollection, testify that he. owed accused a certain amount for liquor sold to him, where he did not make the memorandum himself, and the effect of his answer was that he believed that accused had made the memorandum, and that it related, to whisky transactions between witness and accused.
    @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.
    Appeal from District Court, Wichita County; P. W. Martin, Judge.
    Mrs. Edith Berry was convicted of selling intoxicating liquor, and she appeals.
    Reversed and remanded.
    Mathis & Caldwell, of Wichita Palls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State. •
   HAWKINS, J.

Appellant was charged with having sold intoxicating liquor to one E. L. Sibley. Upon conviction, her punishment was assessed at confinement in the penitentiary for a term of four years.

Sibley • testified that on March 26th, on two separate occasions, he procured from appellant at her house a bottle of whisky. He denied having paid for the whisky either time it was received. The state having alleged the sale of the whisky, it was incumbent upon it to support this by proof, and if, in establishing a sale, it became necessary to show a system pursued by appellant in her dealings with Sibley, no error was committed, although the course of dealing between them revealed other like transactions.

In determining the questions of' law presented by, the bills of exception, we are not authorized to look to anything save the bills themselves and the narrative statement of facts which we find on file with the record.

In bill of exception No. 1, complaint is made at the admission of certain testimony from the witness Sibley. The bill sets out the testimony objected to as follows:

“I made individual purchases of whisky from the defendant in January, 1923, prior to March 26th; when I refer to an individual purchase I mean that I would go in and buy a bottle of whisky and pay for it, and get a bottle of whisky. I possibly went there for the first time in January to get intoxicating liquor from the defendant. I was possibly recommended there. I do not know how to explain what I said to her and what she said to me; I possibly said to her I want a drink. I said I wanted a drink; she said, ‘Here it is;’ she got it in the kitchen. The first bottle of whisky I got from her resembled this bottle here.”

A number of objections were urged to this testimony; the principal one being that it involved a separate and distinct transaction, was too remote, and not admissible against appellant upon the trial of the present case. The bill is approved with the qualification that tlie court stated, at the time said evidence was admitted, that the effect thereof would be limited, and refers to the paragraph of his charge in which he undertook to limit it to the purpose of showing a system pursued by appellant in the sale of intoxicating liquor.

When we go to the narrative statement of facts, we find that certain parts of it apparently support the bill, and other paragraphs are contradictory thereto. We are led to believe that some mistake must have occurred, either in the preparation of the statement of facts or the bill of exception. Both of them, however, are approved by the trial judge and under the circumstances we are bound by the bill of exception. (See, authorities collated under section 217, p. 139, Branch’s Ann. Penal Code.) The bill shows-that the purchases of the whisky in January were cash transactions, and, although the court undertook to limit the effect of this testimony to the development of a system pursued by appellant in her course of dealings with Sibley, we are unable to perceive how an independent cash transaction would be pertinent to the development of a predit system claimed by the state to have existed between them. The admission of this testimony was erroneous, as it is presented in the record and calls for a reversal under the direct authority of Ross v. State, 93 Tex. Cr. R. 61, 245 S. W. 680; Burton v. State, 93 Tex. Cr. R. 335, 247 S. W. 869; Grimes v. State, 44 Tex. Cr. R. 542, 72 S. W. 862; Walker v. State, 44 Tex. Cr. R. 546, 72 S. W. 861. The general rule is tersely stated by Mr. Branch in' the fourth paragraph of section 166, p. 99, of his Annotated .Penal Code, as follows:

“The defendant shouid be tried on the merits of each case, and proof of extraneous crimes which does not go to show intent, identity, or system or which is not a part of the res.ges-tae is not admissible if it could only show that defendant was a criminal generally,”

See authorities collated supporting this rule.

Sibley testified that on the occasions when he procured intoxicating liquor from appellant lie noticed she would make a memorandum in a small book. At the time she was arrested on March 26th the officers found at her house a memorandum book. Sibley did not positively identify it as the one in which he had seen her make the memoranda, but the book was offered in evidence, and no objection was urged thereto. Complaint is made at a charge of the court limiting the effect of the entries in such book. The book having been introduced without objec-' tion, it was perhaps unnecessary for the court to limit the effect of the testimony, unless requested s'o to do by appellant, but, in an effort to protect accused, the jury were told that, unless they found that the entries were made by her and were memoranda of liquor sales, they could not consider it for any purpose, but if they believed the memo-randa referred to liquor sales they might consider it as showing, if it did, the system of appellant in making sales of liquor. We do not believe the charge of the court erroneous.

Sibley was permitted to examine the book in question and therefrom refresh his recollection, and after having done so stated over objection that up to March 26th he concluded he owed appellant $20 or $25 for whisky procured from her. The objection interposed was that the book and its contents were the best evidence. The hook having later gone in evidence, the particular objection urged was thereby probably obviated. In view of another trial we suggest that it was of doubtful propriety to permit Sibley to answer as he did, if he based it upon the entries in the book. He did not make them, and had no means of knowing whether they were correctly entered. It occurs to us the effect of the evidence was that witness believed defendant had made the memoranda, and that it related to whisky transactions between her and witness, and that this memoranda revealed that he then owed her the amount stated. The form and wording of the entries as revealed by the statement of facts were peculiar and incomplete. The jury had them for inspection and could draw their own deductions as to the meaning and effect.

For the error heretofore pointed oiit, the judgment must be reversed, and the cause remanded.  