
    HILL v. STATE.
    (No. 8625.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.)
    1. Witnesses <§=>397 — Grand juror’s testimony as to witness’ contradictory statement in grand jury room held admissible only on issue of credibility.
    Grand juror’s testimony that defendant’s witness stated in grand jury room that witness bought whisky from defendant, where he subsequently testified otherwise held admissible only on credibility of his testimony.
    2. Intoxicating liquors <§=>236(13) — Conviction of selling not sustained by evidence.
    Testimony of state’s witness that liquor she saw her husband purchase from defendant smelled like whisky, and that she believed it was whisky, held insufficient to sustain conviction of selling.
    3. Criminal law <§=>923(5) — That minor was juror not ground for new trial.
    That minor sat as juror is not ground for new trial.
    Appeal, from District Court, Grayson County; F. E. Wilcox, Judge.
    Scott Hill was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    
      C. Huggins, of Sherman, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor; punishment, 'one year in the penitentiary.

It is urged that the evidence is insufficient to support the conviction. The indictment charged the sale of intoxicating liquor to T. E. Newsome. The evidence discloses that Newsome had been on a prolonged spree. About 1 o’clock at night he left his home and went to appellant’s place of business, where a lunch counter and cold drink stand was being operated. Mrs. Newsome followed him. She saw her husband drink something white out of a glass and saw him give money 'to appellant. Newsome took some liquor with him in a bottle. She was the only witness used by the state. Her testimony follows:

“I have never had any experience or observation in seeing or handling or observing whisky or different kinds of whisky. I have seen whisky and smelled it and know how it smells and looks. One kind looks red, and the other kind looks white. * * * I saw my husb'and drink something out of a glass, and I saw my husband give him (appellant) some money. The drink looked white, and I thought it was whisky. I guess it was whisky in the bottle. It smelled like whisky. * * * I do not know whether that was whisky or not; it smelled like it. I could not swear it was whisky; it was something that smelled like whisky. * * * I don’t know how it compared with corn whisky in looks, because I don’t know one whisky from another, except one is white and the other kind is red. It smelled like whisky, and I thought it was whisky. It was white. I guess there was not much difference in it and water. It wasn’t water; it had something else in it; I don’t know what it was. It wasn’t lemon soda. It was something stronger than that. I didn’t drink any. I did not taste it. I smelled it at home. He brought it home with him so I smelled in the bottle. I don’t know whether it was whisky or not.”

T. E. Newsome was used as a witness by appellant. He testified that he had not bought any intoxicating liquor or whisky from appellant in the last two years; that if he had, he knew nothing about it; that he had no recollection of the transaction testified to by his wife. Upon cross-examination he said he had testified before the grand jury that he bought something from appellant that looked more like “sour lemon soda pop” than whisky; that it was sour lemon soda pop, and that was what he had told the grand jury. The state used one of the grand jurors to impeach Newsome. The grand juror testified that Newsome had said in the grand jury room that he bought some whisky from appellant and paid for it.

The jury was properly- instructed not to consider the evidence of the grand juror to establish any fact in the case, but to use it only for the purpose of passing upon the credibility of the witness Newsome. The circumstances testified to by Mrs. Newsome raise a strong suspicion that the liquor obtained from appellant on the night in question was whisky, but we do not believe it goes to 'that extent which will warrant the incarceration of a citizen in the penitentiary. She declined to swear that the liquor was whisky, going only to the extent of saying that it “smelled like it,” and that she believed it was whisky; yet upon that evidence the jury returned a verdict of guilty, apparently being satisfied upon a point that the witness herself would not be certain about. We do not feel that in good conscience we can permit a judgment of conviction to stand without more certainty in the testimony than that disclosed by the record here.

Appellant urges also that he should have been granted a new trial because a minor sat as a juror. The holding of this court is contrary to such contention in Trueblood v. State, 1 Tex. App. 650, followed in Martin v. State, 80 Tex. Cr. R. 277, 189 S. W. 262, and Guerra v. State, 80 Tex. Cr. R. 329, 189 S. W. 952.

We do not discuss the other proposition raised as to the alleged misconduct of the jury in referring to appellant’s failure to testify. In the event of another trial, this will not likely occur.

For the reasons given, the judgment is reversed, and the cause remanded. 
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