
    GONZALES v. STATE.
    (No. 7885.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.)
    1. Criminal law &wkey;»369(6) — Liquor violations not exempt from rule excluding proof of other crimes.
    Violations of the liquor laws are not exempt from the rule of evidence which ordinarily excludes proof of other crimes.
    2. Criminal law &wkey;>I 169(2) — Evidence of sale, where state relied on manufacture, held not reversible error.
    In a liquor prosecution based on two counts, one charging manufacture of liquor and the other the sale thereof, improper admission of evidence of sale after the state elected to rely on the count charging manufacture, received exclusively to guide the jury in assessing the punishment (Code Cr. Proc. 1911, art. 566), held not reversible error, where both from the plea of guilty and from the evidence accused was conclusively guilty of manufacturing, and he received the lowest penalty.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    John Gonzales was convicted of the unlawful manufacture of liquor, and appeals.
    Affirmed.
    R. K. Hanger, Crim. Dist. Atty., Wí. H. Tolbert and Julian B. Mastin, Asst. Crim. Dist. Attys., all of Fort Worth, Tom Gar-rard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of liquor; punishment fixed at confinement in the penitentiary for a period of one year. The indictment contained two counts, namely, the unlawful manufacture and the unlawful possession of intoxicating liquor for the purpose of sale. A plea of guilty was entered. Evidence was introduced sufficient to establish the fact that the appellant manufactured a quantity of liquor and sold it. This came from the confession of the appellant; and was supported from other sources. The state elected to rely upon the count charging the manufacture of liquor.

The appellant, in one of his hills, complains because the election was not made at an earlier stage of the trial, and also insists that after the election there was error in receiving in evidence that part of the appellant’s confession to the effect that he had sold the intoxicating liquor that he manufactured. Under the facts, the bill touching the time of the election shows no error. No legal reason is discerned for receiving in evidence proof that the appellant had committed the offense of selling intoxicating liquor. It does not appear to come within any of the exceptions to the rule of evidence which ordinarily excludes proof of other crimes. This rule has a general application, and is well illustrated by many decisions of this court cited in Branch’s Ann. Tex. P. C. § 166. Violations of the law prohibiting the liquor traffic are not exempt from its operation.

In the present case, however, the only purpose in receiving evidence at all was to guide the jury in assessing the punishment. See Code of Crim. Proc. art. 566. It being conclusive, both from the plea and from the evidence introduced, that the appellant had violated the law prohibiting the manufacture of intoxicating liquor, and he having received the lowest penalty prescribed by law, the admission of the improper evidence should not work a reversal of the judgment. Coats v. State, 86 Tex. Cr. R. 234, 215 S. W. 856; Terretto v. State, 86 Tex. Cr. R. 188, 215 S. W. 329; Taylor v. State, 88 Tex. Cr. R. 470, 227 S. W. 679; Gumpert v. State, 88 Tex. Cr. R. 492, 228 S. W. 237.

The record revealing no error, the judgment is affirmed. 
      <§Sb»For other cases see same topic and KE^-NUMBER in all Key-Numbered Digests and Indexes
     