
    HARRISON v. STATE.
    (No. 7615.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.
    Rehearing Denied Oct. 24, 1923.)
    I. Intoxicating liquors <&wkey;210 — Indictment need not allege transportation of whisky was for purpose of sale.
    It is unnecessary to allege, in an indictment charging illegal transportation of whisky, that the liquor was for purpose of sale.
    On Motion for Rehearing.
    
      ,2. Criminal law &wkey;4363 — Evidence properly admitted as res gestee on hearing after plea of guilty.
    Under the statute requiring some evidence when the accused pleads guilty to a felony, where defendant pleaded guilty to transportation. of whisky, evidence that he had coloring matter in his possession was admissible as part of the res geste.
    3. Criminal law <&wkey;719(l) — Remarks of prosecuting attorney heldi unobjectionable.
    Remarks of the prosecuting attorney that, if all juries suspended sentences in cases of the kind on trial, he and the sheriff might as well quit, was not a comment on any evidence not before the jury, nor objectionable otherwise.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    J. C. Harrison was convicted of transporting whisky, and he appeals..
    Affirmed.
    Bartlett & Patman, of Linden, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Upon his plea of guilty to transportation of whisky appellant’s punishment was assessed at one year in the penitentiary.

It was not necessary to allege in the indictment that transportation of the liquor was for the purpose of sale. Crowley v. State, 92 Tex. Cr. 103, 242 S. W. 472; Cecil v. State, 92 Tex. Cr. 359, 243 S. W. 988; Copeland v. State, 92 Tex. Cr. 554, 244 S. W. 818; McNeil v. State, 93 Tex. Cr. 259, 247 S. W. 536. At the time appellant was arrested he was found in possession of 29 half-gallon fruit jars of whisky. He had broken some of the bottles or jars before the officers could overtake the automobile in which he was transporting it, but admitted to them at the time of the arrest that he had started with 18 gallons.

The state proved, over objection, that there was also found in appellant’s possession, along with the whisky, a pint beer bottle about half full of coloring material such ás is used for coloring white whisky red; the objection being that it tended to prove other offenses against accused, viz. either of selling whisky or of having it in possession for the purpose of sale, and that it was prejudicial to appellant in the jury’s consideration of his plea for a suspended séntence. The objections are not tenable. The proof shows part of the liquor found was white corn whisky, and part red whisky. The presence of the coloring material was res gestee. The jury were properly put in possession of all the facts, to enable them to fix the punishment and exercise their judgment-in passing upon the issue of suspended sentence.

In view of the facts and the qualification of the trial judge to the bill of exception relative to argument of the district attorney, no error is presented.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Our statute requires the introduction of some evidence whenever the accused in a felony case enters a plea of guilty; but there is no statutory designation of what evidence shall be introduced. It is made to appear that, at the time appellant was arrested with the liquor in question, he had in his possession a quantity of coloring matter presumably to effect the color of the liquor before it was sold or delivered, as the case might be. We are unable to conclude that testimony of the finding of such coloring matter was not part of the res gestee of the transaction, nor- that its admission was contrary to the contemplation of the statute.

Complaint is also renewed of the statement made by the prosecuting attorney to the jury, in which he said:

“If all juries suspend sentences in cases of' this kind, fellows like the sheriff and myself should just as well throw up our hands and quit.”

This was not a comment on any evidence not before the jury, nor was it any abuse or vituperation, nor does same to be in the nature of an appeal to the passion or prejudices of the jury, and could have been understood by them but as a mere expression of opinion by the prosecuting attorney. The trial court qualified the bill of exceptions by saying that the statement was in reply to argument of the defense. It seems that the defense was arguing in favor of granting a suspended sentence upon the proposition that, perhaps, the object of the law granting it was to reform offenders, and it is stated that the argument objected to was in reply to this character of argument by appellant’s counsel.

We are unable to bring ourselves to believe the error, if any, of the argument, to be such as to call for a reversal of the case, and the motion for rehearing will be overruled. 
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