
    SKINNER v. STATE.
    (No. 8739.)
    (Court of Criminal Appeals of Texas.
    March 18, 1925.
    On Motion to Reinstate Appeal, April 29, 1925. On Motion for Rehearing, June 10, 1925.)
    1. Criminal law 1023 (9) — Appellate court without jurisdiction on appeal from conviction, in absence of sentence.
    Appellate court is without jurisdiction on appeal from conviction, where no sentence was pronounced.
    On Motion to Reinstate Appeal.
    2. Criminal law <&wkey;598( 10)— Continuance for absent witnesses properly denied for lack of diligence. '
    Continuance because of absent witnesses was properly'denied for lack of diligence, where neither witnesses were summoned nor was it shown that process had been issued, and excuse therefor merely stated that defendant did not employ counsel until three days before trial, since which time he has been unable to locate such witnesses.
    3. Intoxicating liquors <&wkey;222 — Indictment need not negative exceptions in statute.
    Indictment for possessing intoxicating liquor for purposes of sale need not negative exceptions in statute.
    4. Criminal law <&wkey;394 — Statute authorizing officer to give receipts inapplicable to one defending against violation, of liquor law.
    Statute authorizing giving of receipts by officer taking liquor into his possession is of no benefit to one defending against violation of some phase of liquor law.
    5⅛ Criminal law &wkey;5lO0l(ll) — Bills of exception in question and answer form not considered.
    Bills of exception in question and answer form will not be considered.
    
      On Motion for Rehearing.
    6. Criminal law &wkey;>86i — Permitting jury to smell and taste liquor, to see whether they thought it was intoxicating, held reversible error.
    In prosecution for possessing intoxicating liquor for purpose of sale, permitting Jury to taste and smell liquor, pursuant to request of prosecuting attorney, to see whether or not they thought it was intoxicating liquor, held prejudicial error.
    ■Appeal from District Court, Wilbarger County; J. V.. Leak, Judge.
    Steve Skinner was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Reversed and remanded on rehearing.
    Yarbrough & Tipton, of Electra, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Wilbarger county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at three years in the penitentiary.

An examination of the record reveals the absence of any sentence. Without a sentence, .this court is without jurisdiction.

The appeal will be dismissed.

On Motion to Reinstate Appeal.

The appeal in this case was dismissed at a former time because the record failed to show any sentence. The appellant now seeks a reinstatement of the case and accompanies his motion by a certified copy of the sentence. The motion is granted, the appeal reinstated, and the case now considered on its merits.

The indictment herein was returned January 9, 1924. Prior to the return of the indictment appellant was arrested on the day the offense is alleged to have been committed ; he being then found by officers in possession of several gallons of liquor, certain coloring matter, etc. He was- engaged in the process of transferring the whisky from a large jug into smaller fruit jars at the time he was apprehended. The case was called for trial January 23d. Appellant' sought a continuance because of the absence of two witnesses. Neither had been summoned, nor does the application set out that process had been issued. As excuse for this apparent lack of diligence appellant states that he did not make bond until January 18, 1924, and did not employ counsel until January 20th, since which time he has been unable to locate said witnesses. The application does not show diligence. Holmes v. State, 38 Tex. Cr. R. 370, 42 S. W. 996; Ragland v. State, 69 Tex. Cr. R. 372, 153 S. W. 1137; Johnson v. State, 70 Tex. Cr. R. 347, 156 S. W. 1181.

The motion to quash the indictment, based on the fact that same did not negative the exceptions in the statute, was properly overruled. The bill of exceptions complaining of the fact that the officer who arrested appellant gave him no itemized list of the articles found in his possession is also without merit. The statute authorizing the giving of receipts by officers who take into their possession liquor is of no benefit to one defending against a violation of some phase of the liquor law. Austin v. State (Tex. Cr. App.) 261 S. W. 1035.

Appellant’s bills of exceptions Nos. 4 and 5 are in question and answer form. Bill No. 6 was to the action of the district attorney during his argument in tendering the liquor to the jury for their examination, and that they might smell it and taste it. If there was any dispute in the record as to the fact that the liquor was intoxicating liquor, or that it was whisky, the fact that some of the jurors tasted it might raise a more serious question; but we observe that the state offered witnesses who testified that they had had experience in handling liquor, and that that found in appellant’s possession was whisky. Appellant offered no evidence combating the proposition in the slightest. Such being the condition of the record, we do not think it reversible error for the jury to- have tasted the liquor.

The remaining two bills of exception were taken to the lack of sufficient testimony, and the refusal of a new trial. We are not in accord with appellant’s contentions in' either of them.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant most urgently insists that we did not get the full extent of the matter complained of in bill of exceptions No. 6. Upon mature reflection and more critical examination of said bill, we are constrained to agree with his contention. This court has held that it is erroneous to permit the jury to taste liquor which is in evidence, and upon whose intoxicating character the guilt of the accused depends. Dane v. State, 36 Tex. Cr. R. 87, 35 S. W. 661; Brown v. State, 92 Tex. Cr. R. 147, 242 S. W. 218. In the case before us the state relied upon two witnesses, who testified that they saw and tasted the liquor in question, and that in their opinion it was intoxicating. Bill of exceptions No. 6 sets forth that, after the evidence was concluded and the charge of the court read to the jury, the state’s attorney, in the beginning of his argument, picked up one of the jars of liquor in evidence, and which was claimed by the state to have been found in appellant’s possession, removed 'the lid, and passed said jar around to the jurors, and asked them to examine same, taste it, ‘.‘and see whether or not they thought it was m-toxicating liquor.” The bill further shows that said liquor was passed to all the jurors, some of whom smelled it and some tasted it, to all of which an exception was taken. Except in those eases where by specific statutory direction the jury are given the right to become witnesses, such as 'the determination of handwriting, etc., it is manifestly wrong under our practice for any or all of the jurors to be called upon to exercise their own individual judgment in determining such issues as the one here involved. A weapon may not be introduced, and the jury called upon, from their own inspection, handling, and judgment, to thus decide whether it is deadly; neither may a jury be made witnesses to decide whether a given liquor is intoxicating. From the language attributed to the district attorney in the bill of exceptions, which is approved without qualification, it might be held to appear that said attorney himself was not satisfied upon the question of the intoxicating quality of the liquor, and that he called upon the jury by tasting it to thus decide a disputed issue. Manifestly this was wrong. The language used by said attorney escaped our attention upon the original consideration of the case.

Believing that prejudicial error was committed, and that we erred in our judgment of affirmance, same will be set aside, and the case now reversed and remanded. 
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