
    KNAUF v. STATE.
    (No. 11224.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Rehearing Denied Feb. 1, 1928.
    1. Intoxicating liquors &wkey;o239 (6) — Charge to • acquit unless evidence showed liquor sales were made to persons named in indictment held sufficient.
    In prosecution charging sale of intoxicating liquor by defendant to R, T, and D, since proof did not exclude a sale by defendant to them jointly, defendant’s rights were fully protected • by charge that it was not sufficient to show sale of liquor to some one of parties named, and that if they had reasonable doubt as to whether-sale was made R, T, and D, they should acquit.
    2. intoxicating liquors &wkey;>22'3(6) — ■ Naming purchaser of liquor in indictment is descriptive, and averment of sale to one is not supported by proof of joint sale.
    Naming of purchaser in indictment charging sale of intoxicating liquor is descriptive of offense, and averment of sale to one is not supported by proof of joint sale to two or more, and averment of joint sale to two of them is not supported by proof of sale to one.
    3. Criminal law &wkey;5l09l (3) — Bill of exception, not showing that leading question was not within exception to general rule forbidding leading questions, is insufficient.
    Where defendant objected to state’s question to its witness on ground that it was leading, hill of exception predicated thereon, not affirmatively showing that question complained of did not fall under one of exceptions to general rule forbidding leading questions, was insufficient.
    4. Criminal law &wkey;>!09!(3) — Bill of exception to leading questions must affirmatively exclude idea that court was justified in permitting state to ask. them.
    To be sufficient a bill of exception to leading questions must affirmatively exclude idea that under circumstances of particular case court was justified in permitting state to ask leading questions.
    5. Criminal law <&wkey;878(l) — Verdict of guilty as ohargad in two counts held not conviction of two felonies, but to refer only to selling intoxicating liquor as charged in first count.
    Where indictment in first count charged defendant with selling intoxicating liquors, and in third count with possessing intoxicating liquor for purpose of sale, verdict finding defendant guilty as charged in counts Nos. 1 and 3 held not to convict him of two felonies, but only to refer to charge of selling, where evidence showed only one transaction, and minimum penalty was assessed.
    6. Criminal law <&wkey;369(!5) — Testimony that state witness slept with defendant on night after purchase of liquor held relevant to controverted issue of her identity.
    In prosecution for selling intoxicating liquor, testimony of witness who purchased liquor from defendant that on night after purchase he was at defendant’s home and slept with her was material and relevant to controverted issue of defendant’s identity as person who made the sale.
    7. Criminal law &wkey;>l092(l I) — Exception to judge’s action qualifying bill of exception must be verified by trial court before reviewing court can consider it.
    An exception to judge’s action in qualifying a bill of exception must be’ verified by trial court before reviewing court can consider it as properly in the record.
    8. Criminal law &wkey;> 1092(11)— Statement under court’s signatura to bill of exception that defendant objects to court’s qualifications held not exception reviewing court may consider.
    Statement under signature of trial judge authenticating bill of exception as qualified that defendant objects to qualifications is not such an exception to judge’s action in qualifying bill as reviewing court is authorized to consider.
    9. Criminal law &wkey;>369(2) — Material and relevant testimony will not be rejected because it proves commission of separate offense or establishes unrelated fact.
    When testimony is material and relevant to an issue, it will not be rejected because in and of itself it proves commission of a separate offense or establishes some collateral or unrelated fact.
    10. Criminal law ! 092(II) — Reviewing court cannot consider bill of exception, where exception to its rejection was not authenticated.
    The court of Criminal Appeals is unauthorized to consider a bill of exception, where defendant’s exception to court’s act in rejecting the bill was not authenticated by the court.
    On Motion for Rehearing.
    11. Intoxicating liquors <&wkey;238(2) — Whether liquor sale was made to individual or joint purchasers held for jury.
    In prosecution for selling intoxicating liquor, where evidence was in conflict whether sale was made jointly to persons named in indictment or was made to one of them alone, held for jury.
    12. Criminal law <&wkey;f088(l4) — Bill of exception refused by court has no place in record.
    Bill of exception which was refused by the court has no place in the record.
    13. Criminal law <&wkey;I09'l (4)— Bill complaining of evidence elicited on cross-examination is insufficient where it fails to set out what evidence was elicited over objections.
    A bill of exception complaining of evidence elicited on cross-examination from defendant’s witness is insufficient, where it contains objections urged but fails to set out what evidence was elicited over objections.
    14. Criminal law <S=»1171 (I)— Remarks of district attorney in argument held not prejudicial, in view of minimum penalty assessed.
    In prosecution for selling intoxicating liquor, district attorney’s argument, not wholly unwarranted, and opinions about how defendant acquired property she claimed to own in Oklahoma, 'held not prejudicial, in view of minimum penalty assessed by jury, which suggests entire lack of improper influence from argument.
    Commissioners’ Decision.
    Appeal from District Court,, Donley County; C. C. Small, Judge.
    Margaret Knauf was convicted of selling intoxicating liquor, and she appeals.
    Affirmed
    R. H. Beville, of Clarendon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State. <
    
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for one year.

The judgment of conviction is based on the first count of the indictment, which charges a sale of intoxicating liquor by appellant to Reese, Tyree, and Decker. Appellant insists that there is a variance between the allegation and the proof, in that, as she claims, the proof showed a sale to Reese alone.

The court’s charge advised the jury that it was not sufficient to show a sale of liquor to some one of the parties named in the first count of the indictment, and that if they had a reasonable doubt as to whether or not the sale was made to Reese, Tyree, and Decker, they would acquit appellant under said first count. The proof shows that the three parties named in the first count of the indictment drove together in a car to appellant’s house. The three parties entered the house together, and Reese opened the negotiations by asking appellant if she had any liquor. Appellant answered in the affirmative, and Reese told her that he wanted a pint. Appellant left the room and shortly thereafter ieturned with a pint of liquor, which she handed to Reese, for which he handed her $3 or $4. Reese, Tyree, and Decker each paid his pro rata part for the liquor. Their testimony, however, is conflicting as to whether or not appellant was present at the time Tyree and Decker gave their part of the purchase price of the liquor to Reese. Reese testified on redirect examination that “when the money was made up there, and the other boys paid me their part, and I handed the money to her, she was there at that time, and we were all there together.” Tyree testified on direct examination that appellant was in the house, but was not present when he gave his money to Reese. Decker testified on direct examination that “we were all there in the room together when we made up the money to buy the liquor, and then he (Reese) paid it to Mrs. Knauf.” On cross-examination Decker testified that as well as he remembered he gave Reese his money when they went into the house. Reese, Tyree, and Decker drank some of the liquor in appellant’s presence at her house.

Appellant predicated her request for a peremptory instruction of acquittal on the statement made by each of the state’s witnesses, in substance, that the transaction whereby the liquor was purchased was had by Reese and appellant.

Appellant cites several authorities in support of the proposition that the naming of the purchaser in an indictment charging a sale of intoxicating liquor is descriptive of the offense, and that the averment of a sale to one is not supported by proof of a joint sale to two or more, and vice versa. Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099; Elliot v. State, 102 Tex. Cr. R. 186, 277 S. W. 141; Brown v. State, 102 Tex. Cr. R. 54, 276 S. W. 908; Price v. State, 83 Tex. Cr. R. 322, 202 S. W. 948. . The decisions cited by appellant announce the correct rule. That the trial court made proper application of the rule is evidenced by the instruction here-inbefore pointed out. Viewed from a standpoint most favorable'to'appellant, the proof does not exclude a sale of liquor by appellant to Reese, Tyree, and Decker, jointly, and goes no further than to raise the issue as to whether the sale was made by appellant solely to Reese or to the three parties, jointly. Not conceding that the evidence fails to show conclusively that the sale was made to the three parties named, suffice it to say that, in submitting the issue to the jury by proper instruction, the court fully protected appellant’s rights. It follows that appellant’s contention that the proof fails to support the allegations of the indictment as to the purchasers must be overruled.

By bill of exception No. 7, it is shown that during the trial of the cause, the witness Reese had failed to identify appellant, and had testified that he purchased the liquor in question from another party; that after giving such testimony the witness was arrested under an order of the court and kept in custody; that after being talked to by the officers, the witness identified appellant as the person from whom he purchased the liquor; that the witness was then asked by the district attorney “if the main reason he was testifying like that the first time was because he hated to buy liquor from a person like that and then turn them in.” Appellant objected to the question -on the ground that it was leading, suggestive, prejudicial, and not related to any of the issues of the case. The objection being overruled, the witness answered the question in the affirmative.

It is the rule that to be sufficient a bill of exception to leading questions must affirmatively exclude any idea that under the peculiar circumstances of the particular case the court was justified in permitting the state to ask leading questions. Branch’s Ann. Pen. Code, § 159; Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215; Marshall v. State, 104 Tex. Cr. R. 619, 286 S. W. 214. We find nothing in the bill affirmatively showing that the question complained of did not fall under one of the exceptions to the general rule which forbids leading questions.

The indictment contained three counts. The second count was withdrawn from the consideration of the jury, while the first and third counts were submitted without any instruction that the jury should designate the count upon which they found against accused. No exception was taken to the failure of the court to give such instruction. In the first count appellant was charged with selling intoxicating liquor to the parties therein named, and in the third count she was charged with possessing intoxicating liquor for the purpose of sale. The verdict returned by the jury read as follows:

“We, the jury, find the defendant, Margaret Knauf, guilty as charged in the Nos. 1 and 3 counts of the indictment and assess her punishment at confinement in the state penitentiary for a period of one year.”

The court applied the verdict to the first count. It is shown by bill of exception No. 10 that after the jury was discharged appellant excepted to the verdict on the ground that “it was contrary to the court’s instructions and the evidence in the ease, and, further, that the defendant could not be guilty of both offenses at one and the same, time.”

Appellant’s bill does not manifest reversible error. The evidence showing only one transaction and the minimum penalty having been assessed, we are clearly of the opinion that it was not the purpose- pf the jury to convict appellant of two felonies, but only upon one transaction. The sale of the liquor in question by appellant involved the possession of liquor for the purpose of sale, and the two counts of the indictment upon which the verdict was predicated depended upon one and the same transaction. Rambo v. State, 96 Tex. Cr. R. 387, 258 S. W. 827; Meadors v. State, 101 Tex. Cr. R. 336, 275 S. W. 829.

Bill of exception No. 17 presents the following occurrence: While the witness Decker was testifying in rebuttal for the state, he was asked by the district attorney where he spent the night on the occasion of the purchase of liquor- from appellant. The witness answered that he spent the night at the home of appellant, and slept with appellant. Appellant objected to the question and answer on the ground that the testimony elicited was prejudicial and constituted an attempt to show that appellants home was a house of prostitution and had the reputation of being a house of ill repute. Further objections were that the testimony was irrelevant and immaterial and showed the taking place of an act subsequent to the commission of the offense charged in the indictment. The court qualified the bill by stating, in substance, that the identity of the party alleged to have sold the liquor had been put in issue, and that the testimony had material bearing on the question as to whether or not the witness was mistaken in identifying appellant as the party from whom the liquor in question was purchased. Immediately under the signature of the trial judge authenticating the bill as qualified, and over the signature of appellant’s attorney, appears the statement that appellant “objects to qualification and insists upon exceptions for reasons stated.”

An exception to the judge’s action in qualifying a bill of exception must be verified by the trial court before this court can consider it as properly in the record. Nicholson v. State (Tex. Cr. App.) 298 S. W. 436. Appellant’s notation not being such an exception as we are authorized to consider, the bill must be appraised in the light of the qualification.

Appellant denied that she sold the liquor in question to the witness Reese and his companions, testified that she was away from home on the occasion Reese claimed to have bought the liquor from her, and stated that her sister, who resembled her very much “in appearance, height, and facial appearance,” was visiting her during the month of March. The testimony of other witnesses supported appellant’s theory.’ The proof showed that the offense was committed on March 20th. The cross-examination-of the state’s witness Reese shows that the witness first stated that he did not recognize appellant as the party from whom he purchased the liquor; that he was placed under arrest and talked to by the officers; that he then positively identified appellant as the person who sold him the liquor ; that appellant, taking advantage of the contradictory testimony of the witness, severely questioned him in a manner calculated to impress the jury with the fact that he was mistaken when he identified appellant in connection with the transaction. The testimony of the state’s witnesses, Tyree and Decker, on cross-examination, was in substantially the same attitude as that of the witness Reese. Each of the witnesses was shown to have given testimony contradictory of his former testimony concerning the question of appellant being the party from whom the liquor was purchásed. The question of identity was thus a controverted issue, and the testimony complained of was material and relevant to such issue. When testimony is material and relevant to an issue in the case on trial, it will not be rejected because in and of itself it proves the commission of a separate offense or establishes some collateral or unrelated fact. Thomas v. State, 103 Tex. Cr. R. 671, 282 S. W. 237; Underhill’s Criminal Evidence (3d Ed.) § 154. No error Is manifested by appellant’s bill.

Bill of exception No. 18 was rejected by the court. Appellant’s exception to the act of the court in rejecting said bill is not authenticated by the court. It follows that we are unauthorized to consider the bill.

We are unable to agree with appellant that bills of exception Nos. 15 and 16 manifest reversible error. We are constrained to hold that the argument of the district attorney was not of such prejudicial nature as to require a reversal of the case. The evidence was amply sufficient to warrant the conviction of appellant, and the minimum penalty was assessed against her.

There are several matters, presented by bills of exception, which we have hot undertaken to discuss. However, we have made a careful examination of each contention made by appellant and find no reversible error.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant makes quite a lengthy argument, the gist of which is that this court should hold that the sale in question was not made jointly to Reese, Tyree, and Decker, as alleged in the indictment, but that it was in fact made to Reese alone and was therefore at variance with the allegation. Beyond doubt the evidence was in conflict on the point. Such being the case, neither the trial court nor this court could determine such issue of fact. The learned trial judge, realizing that in the jury alone was vested power to settle the matter, quite properly instructed them that it was not sufficient to show a sale to one of said parties, and that if they entertained a reasonable doubt as to whether the sale was made to the three of them, an acquittal was demanded. As we understand the facts, the charge given was all appellant was entitled to.

Appellant complains that we overlooked bills 18 and 21. He devotes some six pages of his motion for rehearing to a discussion of them. We find that bill 18 was refused by the court; hence it has no place in the record whatever. Bill 21 appears to be a complaint of some evidence elicited on cross-examination from one of appellant’s witnesses. An examination of the bill reveals that it contains the objections urged, but wholly fails to set out what evidence was elicited over such objections. The matters suggested will perhaps explain why the bills were not discussed in our original opinion.

Appellant devotes much time and space to three bills reserved by him to argument of the district attorney. We can but regard some of the expressions complained of as reflecting only the district attorney’s conclu-tions based upon the conduct of the state’s witnesses during the trial. It can scarcely be said his' conclusions were wholly unwarranted. Other expressions were the district attorney’s opinion about how appellant acquired certain property which she claimed to own in Oklahoma. If it be conceded that in some instances the prosecutor in the heat of debate may have gone too far, still we cannot agree with appellant’s contention that such remarks should be held to have been prejudicial. The fact that the jury assessed only the minimum penalty under a state of facts which appear to fully justify the verdict rather suggests an entire lack of improper influence from the argument or any other incident occurring during the trial.

The motion for rehearing is overruled. 
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