
    TODD v. STATE.
    (No. 9138.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    1. Criminal law &wkey;>369’(6) — Prosecuting witness’ testimony as to purchasing whisky from defendant several times held inadlmissibie as evidence of other offenses.
    In trial for selling intoxicating liquor, prosecuting witness’ testimony that he had purchased whisky from defendant several times, but could not fix dates, held inadmissible as evidence of other offenses.
    2. Criminal law <&wkey;l 169(6) — Error In receiving proof of other offenses not harmless, where much more than minimum penalty was assessed.
    Where much more than minimum penalty for selling intoxicating liquor was assessed, error in receiving proof of other like offenses was not harmless.'
    4&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Eastland County; E. A. Hill, Judge.
    R. M. Todd was convicted of selling intoxicating liquor, and appeals.
    Reversed and remanded.
    V. L. Shurtleff, of Breekenridge, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State.’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor;, punishment fixed at confinement in the penitentiary for a period of 21 months.

Gonsallaus, the alleged purchaser, testified that on the 30th day of June he purchased from the appellant a drink of whisky, for which he paid him 75 cents.

As á part of its original case, the state received, over proper objection by the appellant, testimony of the witness Bowland to the effect that he had purchased whisky from the appellant a number of times, but that be could not fix tbe dates. We have been able to discern no legal reason for receiving tbe testimony mentioned from tbe witness Bow-land. It seems to have been a receipt of evidence of the commission of other offenses without its coming within any of tbe exceptions to the rule excluding such testimony. In a bill of exceptions the learned trial "judge refers to the case of Atwood v. State, 96 Tex. Cr. R. 251, 257 S. W. 563. It is thought that in making this reference the learned trial judge has overlooked the distinction between the present case and the Atwood Case, which was one in which the offense charged was the possession of intoxicating liquor for the purpose of sale. There being evidence of possession, it was competent for the state to prove by relevant evidence the other essential element in the offense, namely, that the whisky was possessed for the purpose of sale. Upon such an issue, the sale of whisky, as developed by the evidence in that case, was relevant. In the present case there was no issue of intent. The sole question was, Did the appellant sell the whisky to Gonsallaus? Gonsallaus testified that this was done. Appellant did not deny it, and offered no testimony controverting it. The general rule which excludes evidence of other offenses has not been abrogated nor intentionally modified, though the difficulty of its application in cases in which the violation of the liquor prohibition laws were charged has been recognized. See Nichols v. State, 97 Tex. Cr. R. 174, 260 S. W. 1050; Underhill’s Crim. Ev. (3d Ed.) § 151, note 43.

Much more than the minimum penalty was assessed. For that reason the error in receiving proof of other like offenses cannot be regarded as harmless.

The judgment is reversed, and the cause remanded.  