
    WIMBERLEY v. STATE.
    (No. 7753.)
    (Court of Criminal Appeals of Texas.
    Jan. 2, 1924.
    Rehearing Denied April 30, 1924.)
    1. Criminal law <®=^il09l(3) — Bill of exceptions complaining of state’s impeachment of own witness held insufficient.
    Bill of exceptions complaining of state’s impeachment of own- witness held insufficient for failure to disclose that the witness did not give testimony injurious to the state’s case.
    2. Intoxioatiny liquors &wkey;>231 — Testimony as to liquor purchased from defendant held admissible though tasted in defendant’s absence.
    In a prosecution for selling intoxicating liquor, testimony as to contents of whisl^v bottle purchased from defendant held admissible, though defendant was not present at the time witnesses tasted the liquor.
    3. Indictment and information -&wkey;>l32(5)— Refusal to require defendant to elect upon which count it would go to jury held not error.
    Where indictment contained three counts, for sale, furnishing, and delivering of intoxicating liquor, of such form that they might relate to the same transaction and be kindred offenses arising therefrom, and where defendant was' convicted of but one of the counts,'the refusal to require the state to elect upon which count it would go to the jury held not error.
    On Motion for Rehearing.
    4. Witnesses &wkey;>380(5) — State’s witness, whose testimony was hurtful to- it, could he impeached by testimony before grand jury.
    A witness for the state, who denied that he had made statements before the grand jury, and who gave testimony hurtful to the state, might have been impeached by proof of the- testimony given by him before the grand jury.
    5. Criminal law <&wkey;673(3) — Iqstruction that testimony given for impeachment purposes could be considered for such purposes only, proper.
    Where a witness for the state denied that he made statements before the grand jury and gave testimony hurtful to the state, it would have, been proper if state had impeached witnesses by proof of testimony given by him before the grand jury for the court to instruct jury that such testimony could only be considered for purposes of impeachment.
    6. Criminal law <&wkey;1173(2) — Failure ’to instruct to consider testimony for impeachment purposes only, held1 harmless.
    Where the evidence was sufficient to sustain conviction, without the testimony of a witness as to what he had testified to before the grand jury introduced by the state to impeach such witness, the failure to instruct the jury to consider such testimony for purposes of impeachment only held harmless.
    7. Intoxicating liquors-<&wkey;236(11) — Evidence held to sustain conviction for sale of liquor.
    Evidence held- to sustain conviction for selling intoxicating liquor.
    8. Criminal law <&wkey;i798l/2 — Instruction to specify count or counts not objectionable.
    Where there were counts in an indictment charging kindred offenses, growing out of one transaction, instruction to specify “count or counts” on which verdict rested held not subject to criticism;
    <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Llano County; J. H. McLean, Judge.
    Albert Wimberley was convicted of .selling intoxicating liquor, and be appeals.
    Affirmed.
    Flack & Flack, of Menard, 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 Llano county of selling intoxicating liquor, and bis punishment fixed at one year in tbe penitentiary. The indictment contained three counts, one charging the sale, one the furnishing, and the other the delivering of intoxicating liquor. All three counts were submitted in the charge bf the learned trial court, but under instructions to state in their verdict of which count the jury found the accused to be guilty, if any, the verdict found him guilty under the first count.

Appellant, among other things, complains of the lack of sufficient evidence; but as we read the record it abundantly shows a sale by him of whisky, and also that such liquor was intoxicating.

A bill of exceptions complains because the state asked one of its witnesses if he did not make a certain statement before the grand jury, to which the witness, answered that he did. When' objection was made to this question and answer, tho state’s attorney replied that he was offering said testimony for the purpose of impeaching the witness. There are circumstances in which a party may impeach his own witness, and in order to make such action appear erroneous the bill, of exceptions complaining thereof must affirmatively show that the party so impeached has not given testimony hurtful to the side offering him. The bill of exceptions presenting appellant’s objection in this regard nowhere shows that said witness had not given testimony hurtful to the state’s case. In this condition of the record no error would appear.

Complaint is made of the admission of testimony from witnesses Watkins and Kendrick of the fact that they tasted £he contents of a bottle of whisky on the evening of December 26, 1021, near á certain schoolhouse in the town of Llano. The objection to this testimony was that it was out of the presence of the accused and after the alleged sale of the liquor and that it had no connection with the transaction charged. There is nothing in either bill of exceptions to show that such objections were in fact well founded. An examination of the record reveals the fact that the bottle of whisky referred to by said witnesses was the same as that bought from appellant in the transaction charged herein. Inasmuch as the question as to whether the contents of said bottle was intoxicating liquor or whisky, was vital to the issue before the jury, testimony as to the contents of said bottle and the manner in which the witnesses acquired .their knowledge of its contents, would be admissible whether acquired in the presence of the defendant or not.

After the evidence was closed appellant made a motion to require the state to elect upon which count it would go to the jury. The motion was overruled and complaint is made of this action. As stated above, the three counts in the indictment were of such form as that they might relate to the same transaction, and be but kindred offenses arising therefrom. It is easy to understand how delivering, furnishing, and selling intoxicating liquor might be charged and all be founded upon the same transaction. In section 444 of his Annotated P. C., Mr. Branch cites many cases supporting the proposition that, if only one transaction or act is charged and different counts are contained in the indictment to meet the possible phases that the testimony may assume, the state will not be required to elect be-» tween such counts. Appellant cites Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515, and Knott v. State, 93 Tex. Cr. R. 239, 247 S. W. 520. The Todd Case had reference to an indictment wherein a number of offenses were charged in one count, and the Knott Case where the verdict adjudged the accused guilty of more than one felony. We do not quite get : the application of cither to the principle here involved. The kindred offenses were charged in separate counts, and the verdict found the' accused guilty under only one of them.

What we have just said disposes of the matter complained of in bill of exceptions No. 5. The court properly submitted to the jury in his charge the three kindred offenses laid in separate counts in the indictment, instructing them that they could find the appellant guilty of but one.

This disposes of the matters contained in appellant’s bills of exception, and finding no error an affirmance must be ordered.

On Motion for Rehearing.

Appellant complains that we took the wrong view of the purpose and effect of his objection to the testimony of witness Duncan as to what was said by said witness while before the grand jury. We have again reviewed the matter and are inclined to think that to some extent appellant is right in his conclusion. However the matter is not properly brought before us for review. The witness Duncan denying, that he had made statements before the grand jury, and giving testimony hurtful to the state, might have been inlpeached by proof of the testimony given by him before the grand jury, in which event it would have been proper for the court to instruct the jury that such testimony could only be considered for purposes of impeachment. There was no such charge in the instant case, but no exception was taken to the failure of the court to so instruct the jury. We would regard the matter as one of no material effect, however, in view of the verdict of the jury. The charge in the indictment was a sale of liquor to Alfred Hardin. Hardin took the witness stand in behalf of the state, and testified that on the day m question he saw appellant and got from him a quart of whisky; that he did not then pay him for it, but told him that he would hand it to him some time. The liquor that he got was whisky and intoxicating. Upon this state of facts a verdict of guilty would have been upheld by this court had the witness Duncan not been asked the matter under discussion as to what he testified before tbe grand jury. Tbe penalty given by tbe jury was tbe minimum, and if tbe learned trial court bad failed to instruct the jury as to tbe purpose for which tbe testimony could be admitted, and this omission bad been properly excepted to, we would bold it productive of no harmful effect in view of tbe fact that appellant received the lowest penalty. We think the testimony shows with sufficient certainty that witnesses Watkins and Kendrick tasted the contents of the bottle of liquor purchased by Hardin from appellant on tbe occasion charged.

Appellant makes serious attack upon our opinion in regard to tbe submission of tbe various counts in tbe indictment. It is tbe well-settled rule that when there are counts in an indictment charging kindred offenses growing out of one transaction, tbe state is not required to elect, but may submit to the jury all of tbe counts, it being further tbe rule that in such case tbe court should instruct the jury that in case of a verdict of guilty they say upon which count their verdict rests. Complaint is made that in the charge in this case the court told the jury to find under which count or counts, etc. We think the criticism of the charge without merit. The jury found the accused guilty under the first count, and, as above stated, give him the minimum penalty.

Believing the motion to be without merit, it will be overruled.  