
    VENN v. STATE.
    (No. 9718.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.
    Rehearing Denied June 23, 1926.)
    1. Criminal law &wkey;>784( 1)—•Where witness testified he purchased liquor from acc-used, that accused showed witness had said he got it elsewhere held not to require charge on circumstantial evidence.
    Where, in prosecution for selling liquor, state’s witness testified he purchased whisky from accused, that his evidence was assailed by proof that he had said he got the whisky from another person held not to require charge on circumstantial evidence.
    2. Criminal law <§=398 (2) — Where accused first asks on cross-examination concerning conversation between witness and others when accused was not present, state may inquire concerning same (Code Cr. Proc. 1925, art. 728).
    Where, in prosecution for selling liquor, accused on cross-examination first inquires of state’s witness concerning conversation between witness and others, it is proper for state to inquire in more detail concerning same conversation, notwithstanding accused had not been present, in view of Code Or. Proc. 1925, art. 728.
    3. Witnesses <9=395 — Where accused proves prosecuting witness in liquor prosecution made prior contradictory statements, state may prove prior consistent statements.
    Where, in prosecution for selling liquor, prosecuting witness testified he purchased from accused, and accused showed witness had said he got the liquor elsewhere, it was proper for state to prove prior consistent statements.
    4. Criminal law <&wkey;l l70i/2(6)—Improper inquiry held cured, where court sustained objection when made and told jury questions were not to be .regarded as evidence.
    That court, in prosecution for selling liquor, promptly sustained objection when made to questions asked to elicit information that accused made his money from selling whisky, and told jury questions were not to be regarded- as evidence, held to relieve inquiry of error.
    On Motion for Rehearing.
    5. Criminal law &wkey;>749.
    Where evidence is sufficient to sustain conviction, measure of punishment within the law is for jury.
    <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      6. Criminal law <&wkey;H59(2).
    Court of Criminal Appeals can only determine whether evidence supports verdict and whether legal procedure was followed in the trial.
    <S=»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    Appeal from District Court, Upshur County ; J. R. Warren, Judge.
    Will, Venn was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    M. B. Briggs, of Gilmer, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor. Punishment is five years in the penitentiary.

The alleged purchaser, Oscar Winn, testified that he went to appellant’s home and bought whisky from him. The sale was denied by appellant and his witnesses, they claiming that Winn brought whisky to appellant’s house and offered him a drink of it, which he declined. Winn was intoxicated when arrested by officers and placed in jail. Appellant developed that the story first told by Winn to the officers was that he got the whisky from a negro.

Appellant requested a charge on circumstantial evidence and complains because it was refused. We see no basis for the claim that the state’s case rested on circumstantial evidence. This would not arise because Winn’s evidence was assailed by proof that he at first said he got the whisky from some one other than , appellant.

Bills of exception 3, 4, and 5 relate to the same subject and complain because the state was permitted to prove certain conversations between the witness Winn and other parties while Winn was in jail, appellant not being present, and for admitting proof that when brought from jail to the county attorney’s office Winn told said officer he bought the whisky from appellant. The qualification to these bills shows that appellant first inquired about the conversation at the jail in the cross-examination of Winn. The qualification is borne out by the statement of facts to which the learned trial judge referred us. This being true, appellant is in no position to complain because the state inquired more in detail as to the same conversation. Article 728, O. G. P. (1925 Revision). Appellant having impeached prosecuting witness by showing he at one time said he got the whisky from a negro, a statement inconsistent with his evidence on the trial, the state was within its rights in supporting said witness by proving that the statement made by him to the county attorney was consistent with his evidence. (Eor collation of authorities, see section 181, Branch’s Ann. Tex. P. G.)

Bill No. 6 was refused by the court and appears to have no place in the record. Bill No. 7 presents no error, and we think is not of sufficient importance to call for discussion.

In bill No. 8 complaint is made of certain questions propounded to appellant by the state on cross-examination, the effect of the questions being an effort to elicit information that all the money made by appellant in the last five years was from selling whisky in Upshur county. The learned trial judge says in explanation of the bill that some of the questions were asked and answers given before any objection was made; that objection was interposed when appellant was asked, “How much have you made outside of selling whisky in Upshur county?” That the objection was sustained, and in connection with the ruling the court said, “The jury will understand the district attorney’s questions are not testimony.” Appellant admitted he had been indicted many times for violating the “liquor laws,” and declined to answer whether it was not a fact that he had been indicted as many as twelve times either for selling whisky, or possessing it for the purpose of sale, or for manufacturing'" it, or possessing implements for manufacturing it. The inquiry out of which the complaint reflected by bill No. 8 arose was directed towards ascertaining what business appellant was engaged in. The explanation of the learned trial judge appears to relieve the proceeding of error. He was not called upon to rule until objection was made, whereupon he appears to have acted promptly in sustaining the objection, and telling the jury the questions were not to be-regarded as evidence.

Finding no errors which in our opinion demand a reversal, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Oscar Winn testified that he purchased some whisky from the appellant. The appellant testified denying the sale. He introduced testimony impeaching the general reputation of the state’s witness for truth and veracity. The witness also made some conflicting statements. He showed some reluctance to give testimony and was vigorously cross-examined. The state introduced consistent statements.

The various bills of exceptions are discussed in the original opinion, and no new matter is presented upon the rehearing, save that it is there contended that the punishment is excessive. The punishment, it is true, is the maximum allowed by law. The evidence being sufficient to sustain the conviction, the measure of the punishment within the law was within the discretion of the jury. The power of this court extends no further than to determine whether the evidence adduced upon the trial supports the verdict and whether in the conduct of the trial the‘legal procedure was followed. In these particulars we are unable to perceive augbt that would give this court authority to overturn the verdict.

The motion for rehearing is overruled.  