
    KILE v. STATE.
    (No. 10134.)
    (Court of Criminal Appeals of Texas.
    March 9, 1927.)
    1. Intoxicating liquors &wkey;>236(6!/2) — Evidence-held to support conviction of possessing intoxicating liquor for sale.
    Evidence held to support conviction of possessing intoxicating liquor for the purpose of sale.
    2. Criminal law <&wkey;1167(2) — Refusal to require electron between counts for transporting and possessing liquor held not reversible, in. view of verdict and judgment.
    Refusal to require state to elect between; counts of indictment for transporting intoxicating liquor and possessing it for purpose of sale, and submission of both counts to jurj', held not reversible error, Where court directed jury to-specify on which count they convicted, and verdict and judgment were restricted to count charging possession.
    3. Criminal law <@=l 169(5) — Testimony, in trial for possessing intoxicating liquor, that arresting officers had warrant for defendant on adultery charge, held not prejudicial, where court immediately instructed jury not to consider it.
    In trial for possessing intoxicating liquor for sale, testimony of one of arresting officers that they 'had a warrant for defendant on an adultery charge held not prejudicial to defendant, where court immediately instructed jury not to consider it for ariy purpose.
    4. Criminal law <&wkey; 1137(5) — Defendant cannot complain of testimony as to matter testified to by him on direct examination.
    Defendant testifying on direct examination, in trial for possessing intoxicating liquor for sale, that arresting oifieers informed him .on his request that warrant they had for him was on charge of adultery, cannot complain of testimony of one of them that they had such a warrant.
    5. Criminal law &wkey;404(4) — Whisky found! held admissible, in trial for possessing intoxicating liquor for sale.
    In trial for possessing intoxicating liquor for sale, no error was committed in bringing before jury whisky found by officers in pasture where one of them saw defendant throw package.
    6. Criminal law &wkey;65l ('/2) — Jury is not per- " mitted to view place of crime.
    In Texas, jury is not permitted to view place where crime was committed.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. O. Kile was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    Culwell & Culwell, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for the possession of intoxicating liquor for the purpose of sale; punishment being 1 Yz years in the penitentiary.

Officers had a warrant for appellant’s arrest. They met him on the road, turned their car around, followed and overtook him. He had stopped his car when they reached him. One of the officers saw him throw a package over the fence into a pasture. .Another officer saw him returning to his car. Upon investigation, a carton containing four unbroken quart bottles of Canadian Club whisky and four broken quart bottles were found where the package was thrown by appellant Appellant denied having thrown it there and disclaimed any connection with it. The evidence supports the judgment.

The indictment contained two counts, the first charging ‘transportation,’ the second ‘possession for the purpose of sale.’ Both counts were submitted to the jury. The only transaction under investigation was appellant’s connection with the package of liquor which it was claimed he had thrown over the fence. Under the facts, no reversible error was committed in refusing to require the state to elect as between the counts nor in submitting both counts for the jury’s consideration. The court directed the jury, in the event of conviction, to specify upon which count they convicted. The verdict and judgment are restricted to the count charging possession.

One of the officers was asked what they did when they saw accused, to which he replied: “We had a warrant for him on an adultery charge.” Upon request the court immediately instructed the jury that this had nothing to do with the present case and that they should not consider the answer of the officer for any purpose whatever. This prompt action of the court relieved the incident of any serious consequences. But if this were otherwise appellant is not in a position to complain because he put the same fact in evidence by testifying on direct examination that when the officers told him they had a warrant for him he asked what it was for and they informed him it was upon a charge of adultery.

No error was committed in bringing before the jury the whisky found by the officers. Appellant requested that the jury be permitted to visit the scene of the transaction described by the witnesses to determine for themselves whether the witnesses could have seen what they claimed to have observed. The request was refused. The practice of permitting the jury to view the place where the crime was committed is not allowed in this state. Riggin v. State, 42 Tex. Cr. R. 472,. 60 S. W. 877; Fate v. State, 73 Tex. Cr. R. 278, 164 S. W. 1018; Lovett v. State, 87 Tex. Cr. R. 548, 223 S. W. 210.

Finding no errors which call for a reversal, the judgment is affirmed. 
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