
    CARVER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1912.)
    1. Criminal Law (§ 413) — Evidence—Acts and Statements Aftek Accusation.
    In support of the contention of defendant, charged with selling liquor to H., that he did not sell it to him, but that H. grabbed it and ran, throwing down some money, the fact that defendant gave the money to a third person to return to H. may not be shown; this having been not before, but after, he was charged with making the sale.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    2. Criminal Law (§ 407) — Evidence — Statements in Defendant’s Presence.
    Statement of defendant’s boy, heard and not replied to by defendant, made to an officer who had come to defendant’s place to search for whisky, “If you will let him off this time, I will see he does not sell any more whisky. Mamma and I both have tried to get him not to do that” — is admissible on a prosecution for illegal sale.
    • [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 898-900, 968; Dec. Dig. § 407.]
    3. Witnesses (§ 414) — Corroboration—Evidence of Statements.
    Defendant, prosecuted for sale of a bottle of whisky, which he claimed he had not sold but was taken, could not, after testifying that the bottle belonged to him and D., and had been ordered for their own use, in the absence of any effort to impeach him by proof of contradictory statements or otherwise, corroborate his 'testimony by testimony of D. that he reported to D. that some one had taken their bottle of whisky, and run off with it.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    4. Criminal ' Law (§ 933) — New Trial— Matters Not Objected to Ak Trial.
    Defendant, prosecuted for sale of liquor, not having objected to evidence of three sales on the same day, or moved to require the state to elect between the sales, could not by motion for new trial object that the verdict did not specify the sale for which he was convicted; the judgment being a bar to prosecution for any of the sales.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2283-2293; Dec. Dig. § 933.]
    5.Criminal Law (§ 830) — Instructions— Requests — Dutt to Correct and Give.
    It being a misdemeanor case, the court, on a prosecution for sale of liquor, there being evidence of three separate sales, one of a bottle of whisky, and two of single drinks, was not required to correct, and as corrected give, a requested charge to acquit if defendant did not accept money for the bottle of whisky.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. § 830.*]
    Appeal from District Court, Hemphill County; F. G. Greever, Judge.
    George F. Carver was convicted, and appeals.
    Affirmed.
    Baker & Sanders, of Canadian, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of making a sale of intoxicating liquor in Hemphill county; prohibition being in force in said county.

It was admitted that prohibition was in force in Hemphill county, and the state’s witness Ben Helton testified that he was in the town of Canadian on the 5th day of last December, and in the morning went into appellant’s restaurant and purchased from appellant a drink of whisky and paid him for it; that later during the same day he purchased from appellant a bottle of whisky, and paid him a dollar for it, and later in the evening he again went in the restaurant •and purchased a drink of whisky, paying him 15 cents for it. Appellant admits that Helton was in his restaurant that day, but says he sold him no whisky, and he got no whisky but one time; that about noon Helton and R. B. Starring were in the restaurant, eating chili, and that he gave them both a drink of whisky, and, while his back was turned, Helton threw down on the counter $2, grabbed the whisky, and ran, he telling him not to do so; that he picked up the money and put it on a shelf, and later gave it to Mr. Humphrey, with the request to return the money to Helton. Starring corroborates appellant. The appellant offered to prove by Humphrey that he did give him the $2 with the request to return it to Helton, and that he, Humphrey, tendered it to Helton, but Helton declined to receive it. As the record discloses that this all took place after defendant had been arrested, charged with making a sale to Helton, the court did not err in excluding the testimony of Humphrey. Had he given this money to Humphrey to be returned to Helton prior to being charged with this offense, it would be admissible, but acts of this character, what he said and • did after being charged with the offense, are never admissible in evidence.

The sheriff was permitted to testify that, after being informed of this offense,' he went to appellant’s place of business to search for whisky, and, while talking to appellant about the matter, appellant’s 16 year old boy was standing there, and said: “If you will let him off this time, I will see he does not sell any more whisky. Mamma and I both have tried to get him not to do that.” Defendant admits he heard his son say this to the sheriff, and the testimony shows he made no reply to the remark, and no denial of the statement that the boy and his mother had been trying to get him not to sell whisky. There was no error in admitting the evidence. Browning v. State, 26 Tex. App. 432, 9 S. W. 770; Moore v. State, 15 Tex. App. 1; Conner v. State, 17 Tex. App. 1; Bennett v. State, 39 Tex. Cr. R. 639, 48 S. W. 61.

Defendant testified that the bottle of whisky in the house belonged to him and Frank Deal; that they had ordered it for their own use. He then offered to prove by Frank Deal that he (appellant)) reported to Deal: “Frank, some son of a gun came in here awhile ago, and got our bottle of liquor, and ran off with it.” There had been no effort to impeach defendant by proving contradictory statements or otherwise, and the court did not err in not permitting Deal to corroborate appellant’s testimony. Red v. State, 39 Tex. Cr. R. 414, 46 S. W. 408; Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268.

Evidence of three sales on the same day were admitted without objection. Defendant did not request the court to require the state to elect on which sale it would seek a conviction, but, after the jury had returned its verdict, defendant moved for a new trial on the ground that the verdict did not specify for what sale they convicted him. The defendant can plead this judgment in bar of any other prosecution for sales on that day, and the court did not err in refusing to grant a new trial on that ground. If the defendant had objected to this testimony, doubtless the court would have sustained the objection to all evidence except one sale; not objecting, if after the testimony was admitted defendant had requested the court to require the state to elect for which sale it would seek a conviction, doubtless the court would have sustained his motion. The request comes too late .after verdict.

This is a misdemeanor, and there were no exceptions reserved to the charge of the court, but there was an exception reserved to the failure of the court to give a special charge requested. Under the evidence, this charge was not the law of the ease. The charge requested was based on the evidence of defendant and Mr. Starring, and requested the court to instruct the jury that, if defendant did not accept the money for the bottle of whisky, to acquit him. As there were two other sales testified to by the state’s witness — a drink in the morning and a drink in the evening — which he says he paid 15 cents each for, the court did not err in refusing the charge. Sparks v. State, 23 Tex. App. 448, 5 S. W. 135; Perkins v. State, 144 S. W. 244; Mealer v. State, 145 S. W. 354. As said by this court in Hobbs v. State, 7 Tex. App. 118, a different rule has always prevailed in regard to charges in felony and misdemeanor cases. This by virtue of the statutes of this state, and this court has no right to override those provisions of the law, and attorneys in the trial of cases should keep the different provisions well in mind. '

The indictment is drawn in form frequently approved by this court, and there was no error in overruling the motion in arrest of judgment. Branch’s Crim. Law, § 544.

The evidence amply supports the verdict, and the judgment is affirmed.  