
    GUSE v. STATE.
    (No. 7075.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1923.
    Rehearing Denied April 9, 1924.)
    1. Criminal law <&wkey;478(I) — Expert’s evidence that liquid was not fruit cider but a flavored extract properly received.
    Where defendant sold as cider a liquor purchased by him, according to his testimony, under assurance that it was nonintoxicating, but analysis revealed 13 per cent, alcohol, there was no error in permitting expert witness, who testified that he made the analysis only to determine alcoholic contents, to state that from his knowledge of an ingredient used to make fruit extracts he believed the liquid analyzed was not fruit cider but diluted alcohol flavored with artificial fruit-flavoring extract.
    2. Criminal law <&wkey;48l, 1153(2) — Qualifications of expert within trial court’s discretion reviewabie only for abuse.
    The qualifications of an expert to express opinion is generally regarded as being within judicial discretion of the trial court, to be reviewed only when discretion is abused.
    3. Criminal law <&wkey;459 — Technical knowledge as to intoxicating character of liquor not required.
    In regard to intoxicating character of a given liquid, shown to contain ardent spirits, a technical knowledge is not required, but one who has examined the article and is familiar with its taste and smell may state its character.
    4. Criminal law <&wkey;>f 170,1/2(2) — Questions on cross-examination harmless, In view of answer.
    Where, in prosecution for unlawful sale of intoxicating liquor, defendant, while a witness, stated, in reply to questions on eross-examiqa-tiori, that he had not been before the grand jury several years ago nor' sold liquor to boys, no harmful error resulted from the questions.
    5. Criminal law &wkey;»722(3) — Argument that defendant was raised over a saloon based on evidence.
    In prosecution for liquor violation, where there was evidence tending to .show that defendant’s parents occupied the second story of a building which had formerly been a saloon belonging to them, counsel’s remark in argument that defendant was raised over a saloon was not without basis in the evidence.
    6. Criminal law &wkey;>659, I I66,(/2(I) — Sheriff’s interruption of argument held improper but without probability of injury.
    Where purchaser of liquor was acqpsted soon afterwards by a deputy sheriff and the bottle taken from him, and defendant’s witness stated that the\deputy sheriff had asked defendant to sell him a drink, and defendant stated he had no liquor, when defendant’s attorney stated in argument that he exonerated the sheriff from the attempt to entrap, an interruption by the sheriff, stating in jury’s presence that the deputy had no knowledge of the scheme, was improper, and merited reprimand, but the probability of injury therefrom was not sufficiently clear to require reversal.
    
      <g — >For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      7. Criminal law @=>116614(1) — Probability of injury from bystander’s conduct necessary to vitiate verdict.
    Probability of injury is essential to vitiate the verdict because of the conduct of bystanders.
    8. Criminal law &wkey;j507(I) — Purchaser of liquor not an accomplice.
    Under Acts 37th Leg. (1921) 1st Called Sess. c. 01, § 2c (Vernon’s Ann. Pen. Co.de Supp. 1922, art. 588%a3), the purchaser of. intoxicating liquors unlawfully sold is guilty of no offense, and in prosecution for such sale’ would not be an accomplice witness.
    9. Statutes &wkey;ll8(6), 141(1) — Act denying suspended sentence to persons over 25 not invalid.
    Acts 37th Leg. (1921) 1st Called Sess. c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3), does not offend Const., art. 3, § 35, or section 36, by withholding the privileges of suspended sentence law (Code Cr. Proc. art. 865b), from transgressors whose ages exceed 25 years.
    10. Intoxicating liquors (&wkey;>132 — Volstead Act held not to affect state’s enforcement laws.
    The Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138% et seq.) is not a,n impediment to the enacting and enforcing laws of the state (Acts 36th Leg. 1919, 2d Called Sess. c. 78, and Acts 37th Leg. [1921] 1st Called Sess. c. 61 [Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.]), covering the same subject.
    11. Indictment and information <&wkey;l32(5)— Refusal to require state to elect between counts not error.
    Whore indictment in separate counts charged defendant with sale of intoxicating liquors and sale of potable liquor containing more, than 1 per cent, alcohol, and both counts related to a single transaction, and the evidence developed but one, there was no error in refusing to require state to elect as between the counts.
    12. Criminal law <&wkey;1175 — Failure to require jufy to designate count, held not reversible error.
    Where criminating evidence was applicable to both counts of an indictment, and there was no request to instruct jury that in event of conviction they should designate the count on which it was based, and the lowest penalty was assessed, failure to require it to designate the count on which conviction was found did not justify reversal.
    On Motion for Behearing.
    13. Criminal law <&wkey; 1133 — Objection to charge first urged in motion for rehearing, not reviewed.
    Under Code Or. Proc., art. 735, requiring objections to charge to be in writing, distinctly specifying each ground thereof, objections to a charge first urged in motion for rehearing will not be reviewed.
    &wkey;jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Bastrop County; K. J. Alexander, Judge.
    Ernest Guse was convicted of unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    Page & Jones, of Bastrop, for appellant.
    W, A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MOBKOW, P. J.

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Appellant had kept for some time a cold drink business, in which he openly sold a liquid called cider at 25 cents per drink and $1 per pint. The article had been'purchased by the appellant, according to his testimony, under an assurance or guarantee that it was nonintoxicating. The prosecution is founded upon the sale of a bottle of the liquid to Arispe, a Mexican. An analysis of the fluid revealed that it contained 13 per cent, alcohol, and there was evidence to the effect that it was intoxicating. Whether the alcoholic content was due to fermentation' without his knowledge after he acquired the liquid was an issue upon which there was conflicting evidence. The witness who made the analysis gave testimony showing his qualification as an expert, but said that he made no analysis other than to determine the amount of alcohol. Objection was urged against his opinion that the fluid was not fruit cider, but diluted alcohol, flavored with artificial fruit-flavoring extract. He testified to his knowledge of the odor of amyl acetate, a chemical used in making such fruit extracts, and that the liquid had a strong odor of such chemical; that from his knowledge of the odor and his familiarity with the liquid given him for examination in his efforts to learn whether it contained alcohol, he entertained the opinion that the contents of the bottle analyzed by him was not fruit cider, and also stated that fruit eider would generate alcohol unless sterilized, while the artificial article would not. The qualification of an expert to express an opinion is generally regarded as being within the judicial discretion of the trial court, to be reviewed only when the discretion is abused. Wharton’s Crim. Ev. §§ 408-409; Wigmore on Ev. vol. 1, § 561; Bratt v. State, 38 Tex. Cr. R. 121, 41 S. W. 622; Holder v. State, 81 Tex. Cr. R. 197, 194 S. W. 162. In regard to the intoxicating character of a given liquid shown to contain ardent spirits, the precedents indicate that a technical knowledge is not required, but that one who has examined the article and is familiar with •its taste and smell may state its character. See Carson v. State, 69 Ala. 240; Cathey v. State, 94 Tex. Cr. R. 599, 252 S. W. 534. In receiving the testimony mentioned, the court, in our opinion, was not in error.

While on the witness stand, appellant said that he had not been before the grand Jury several years ago, and that he had not sold liquor to boys. This was in reply to questions propounded to him on cross-examination, and, in view of the negative reply, no harmful error appears.

The testimony of the mother of appellant went to show that the second story of the building in which appellant conducted his business was used as a dwelling by her and her husband, and that it had long been so occupied; that the building belonged to appellant’s father and mother; and that the business formerly belonged to them, but had been sold to appellant, and that no whisky had been sold in it since the saloon was there. The remark of counsel in argument that appellant was raised over a saloon was not without basis in the evidence which, on appellant’s behalf, his mother gave.

Soon after the liquid was sold to Arispe, he was accosted by Soto, a' deputy sheriff, and the bottle of liquid was taken from him and delivered to the sheriff. Appellant’s witness Steyman testified that Soto, a short time before the sale was made to Arispe, had asked appellant to sell him a drink with a “kick in it,” and that appellant said he had no liquor of that kind. Soto did not deny this. Appellant’s counsel, in arguing the case before the jury, availed himself of these circumstances to impress the jury with the view that Soto and another Mexican had conspired to induce appellant to violate the law by making a sale of intoxicants to Soto, and that, on the failure of that device, had sent Arispe and his Mexican associate to appellant to entrap him. In the course of this argument counsel said that he exonerated the sheriff because he said he had no knowledge of the scheme, whereupon the sheriff interrupted the counsel, and said in the presence of the jury: “No, neither has John Soto.” The judge reprimanded the sheriff, and instructed the jury to disregard his statement. The impropriety of the sheriff’s conduct and that he merited a reprimand seems obvious, but the probability of injury to appellant is not clear. Probability of injury is essential to vitiate the verdict because of the conduct of bystanders. Branch’s Ann. Tex. P. C. p. 213; Buchanan v. State, 41 Tex. Cr. R. 131, 52 S. W. 769; Corpus Juris, vol. 16, p. 1176. The status of the evidence is such that neither the act nor the testimony of Soto is important. The sale of the liquid is conceded. The appellant’s reliance was on the want of sufficient proof that the liquid sold was intoxicating and on a mistake of fact touching the intoxicating nature of the liquid. See Patrick v. State, 45 Tex. Cr. R. 587, 78 S. W. 947; Martin v. State, 57 Tex. Cr. R. 150, 122 S. W. 24; also note 6 L. R. A. (N. S.) p. 480.

No complaint is found of the manner in which the issues of fact were submitted to the jury. Whether Soto designed or conspired to cause appellant to sell intoxicants produces no legal consequence of which this court is aware. If Soto had purchased the liquid, he would have been guilty of no offense, nor would he have been an accomplice witness. The statutes so declare. See Lamm v. State, 94 Tex. Cr. R. 560, 252 S. W. 535; Acts 37th Leg. 1st Called Sess. c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a 3).

Section 2 (Vernon’s Ann. Pen. Code Supp. 1922, art. 5S8%a4) of chapter 61, supra, does not offend against article 3, § 35, or section 36, by withholding the privileges of the suspended sentence law (article S65b, C. C. P.) from those transgressors of that chapter whose ages exceed 25 years. Davis v. State, 93 Tex. Cr. R. 192, 246 S. W. 395.

The authority of this state to enact sections 1 and 2 of chapter 78, Acts 36th Leg. 2d Called Sess., and chapter 61, Acts 37th Leg. 1st Called Sess. (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.), was upheld by this court in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199, and by the Supreme Court of the United States in Chandler v. State, 200 U. S. 708, 43 Sup. Ct. 247, 67 L. Ed. 474, both holding that the act of Congress in 41 Stat. at Large, c. 85, known as the Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138% et seq.), was not an impediment to the state enacting and enforcing laws covering the same subject.

The indictment, in separate counts, charged that appellant sold spirituous liquor capable of producing intoxication, and that he sold potable liquor containing more than 1 per cent, of alcohol by volume to Hernán Arispe. Both counts were submitted to the jury. There was a general verdict upon which the court entered a judgment of conviction upon both counts.

Appellant, in a timely manner, requested the court to require the state to elect as between the counts. The separate counts related to but a single transaction, and the evidence developed but one. Under such conditions there was no error in refusing to require the state to elect as between the counts. Gonzales v. State, 12 Tex. App. 663, and other cases collated in Branch’s Ann. Tex. P. C. § 444, p. 233; Hooper v. State, 94 Tex. Cr. R. 278, 250 S. W. 694. If the evidence had shown different transactions, a different rule might have applied. Fisher v. State, 33 Tex. 792; and other cases in Branch’s Ann. Tex. P. C. § 233; Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377. The court should have instructed the jury that in the event of conviction they should designate in their verdict the count upon which the conviction was based. Knott v. State, 93 Tex. Cr. R. 239, 247 S. W. 520; Zilliox v. State, 93 Tex. Cr. R. 301, 247 S. W. 523; Wimberley v. State, 94 Tex. Cr. R. 1, 249 S. W. 497; Huffhines v. State, 94 Tex. Cr. R. 292, 251 S. W. 229; Nowells v. State, 94 Tex. Cr. R. 571, 252 S. W. 550; Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377; Hooper v. State, 94 Tex. Cr. R. 278, 250 S. W. 694; Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893. There was no request of the court to do so, and because of the criminating evidence being applicable to both counts and the lowest penalty having been assessed, the failure to require the jury to designate the count upon which the conviction was found would not alone justify a reversal. Rozier v. State, 90 Tex. Cr. R. 339, 234 S. W. 666, and cases therein cited.

Finding no error, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant devotes several pages of his motion for rehearing to a criticism of the court’s charge. The only written exceptions to the charge found in the record is upon an entirely different ground than those now urged in the motion. Under present article 735, C. C. P., requiring objections to the charge to be in writing, “distinctly specifying each ground of objection,” and the uniform holdings construing this law, we are constrained to decline a review of the objections otherwise presented. The same may be said of appellant’s insistence that one of his defenses, viz. that the alcoholic content in the liquor would increase by age, was not submitted to the jury. Ño objection in writing was made because of such omission from the charge, neither was any special charge requested supplying it. All other matters called to our attention in the motion were fully considered and discussed in our former opinion. We have again examined them in view of the motion, however, and believe them to have been correctly disposed of.

The motion is overruled.  