
    EARNEST v. STATE.
    (No. 4897.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Intoxicating Liquors <§=^219, 222 —Indictment — Gift to Minor — Uncertainty. .
    . An indictment, that defendant gave intoxicating liquor to one named, “then and there being under the age of 21 years without the written consent of the parent or guardian * * * of the said --, against the peace,” etc., was too uncertain as to who was the minor and as to consent.
    2. Intoxicating Liquors <®=o159(2) — Minors —Knowledge. f,
    In prosecution for giving intoxicating liquors to minor, the state must show, by evidence positive or circumstantial, that defendant knew that one obtaining liquor was a minor.
    3. Intoxicating Liquors <⅝^>236(15) — Minors — Knowledge oe Minority — Proof.
    In prosecution for giving intoxicating liquor to minor, mere proof that the girl obtaining liquor was only 17 was insufficient to warrant conviction, in the absence of evidence as to her size and development.
    4. Witnesses <®=374(1) — Bias—Motive.
    • In prosecution for giving intoxicating liquor to minor girl, it was error to exclude evidence that witness testifying as to giving of liquor had.reasons and motives for so testifying.
    5. Criminal Law ⅞⅛=>730(13) — Misconduct of Prosecuting Attorney.
    In prosecution for giving intoxicating liquor to minor girl, it was reversible error for court not to admonish jury, where county attorney stated that defendant was indicted for rape; there being no evidence introduced to that effect.
    6. Criminal Law <S^789(3) — Reasonable Doubt — Instructions.
    In prosecution for giving ■ intoxicating liquor to minor, it was error to refuse to instruct that the state must prove beyond reasonable •doubt that defendant knew person obtaining liquor was a minor.
    Appeal from Motley County Court; A. B. Crane, Judge.
    Dan Earnest was convicted of giving intoxicating liquor to a minor, and lie appeals.
    Reversed and remanded.
    Geo. L. Mayfield, of Plainview, Jas. A. Stephens, of Benjamin, and G. E. Hamilton, of Matador, for appellant. E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The charging part of the indictment is as follows: That Dan Earnest, on the 15th day of November, 1916, in the county of Motley and state of Texas, “did then and there unlawfully and knowingly give and cause to be given spirituous, vinous and intoxicating liquor to Hattie Williams, then and there being under the age of 21 years without the written consent of the parent or guardian or of some one standing in the place and stead of parent or guardian of her the said-, against the peace and dignity of the state.”

Motion was made to quash as well as in arrest of judgment. We are of opinion this indictment is not sufficient. It leaves it in doubt as to whether the minority is charged as to Hattie Williams or defendant, and also as to the question of consent. This uncertainty is re-enforced by the fact that, instead of charging that the parent or guardian stood in such relation to Hattie Williams, it fails to set out her name, and leaves it blank. More care and caution should be taken in writing indictments charging statutory offenses. It could have been just as easily charged, and should have been, that if it was intended to charge appellant with giving intoxicating liquor to Hattie Williams, she, Hattie Williams was then and there under the age of 21 years. This would have been specific, and would have raised no question for decision on appeal. Upon another trial, either proper indictment or complaint and information should be drawn in the terms of the law.

In order to constitute this offense the evidence must show that the indicted party knowingly gave or sold intoxicants to a minor. The evidence must show, not only the minority, but knowledge of that fact on the part of the accused. This may be done by circumstances, in the absence of positive evidence. The only evidence in the case bearing upon the age of Hattie Williams was that she was 17 years of age last July, which would make her in her eighteenth year at the time of the trial. Under repeated decisions of this court this evidence is not sufficient to show knowledge on the part of the accused of the minority. The cases are collated by Mr. Branch in his Annotated P. O., p. 685. Hunter v. State, 18 Tex. App. 448, 51 Am. Rep. 319; Williams v. State, 23 Tex. App. 70, 3 S. W. 661; Schurzer v. State, 25 S. W. 23; Henderson v. State, 37 Tex. Cr. R. 79, 38 S. W. 617; Sinclair v. State, 70 S. W. 218; Williams v. State, 65 Tex. Cr. R. 624, 145 S. W. 612. , In the Henderson Case, supra, the evidence was that the party to whom the whisky was sold was 16 years of age. This was held not sufficient to show knowledge on the part of the accused. There is nothing to show the appearance of Hattie Williams, as to her size, development, etc., to place appellant upon notice of the fact that she was a minor.

Evidence was also offered to show that one of the state’s witnesses had reasons and motives for testifying against appellant with regard to the fact that he saw appellant give whisky to Hattie Williams. This was reserved in at least two bills of exception. Upon another trial this testimony should be admitted. It is unnecessary to go into details. The bias and motives 'of witnesses are matters which may be proved to affect the credibility and the weight to be given testimony of witnesses.

There is also a bill of exceptions reserved to remarks of the county attorney, and also to charges reguested withdrawing these remarks, which were refused. One of the bills shows that, while the defendant was cross-examining the witness Hattie Williams, she was asked if there was anything done down there at that creek that night that was improper or wrong by any one of those boys. To this the county attorney objected, and remarked:

“I object because that question is being asked by counsel for no other purpose under the sun except for the benefit of this defendant in a felony case, wherein he is indicted for rape on Bessie Hobbs.”

Prompt exception was reserved, but without avail. The county attorney also used this language in his argument:

“You should not allow men like this man to ruin little girls like the Hobbs girl, who is now in a rescue home.”

He also remarked:

“My God Almighty, men! are you going to turn a devil like this loose, when he was running around here ruining innocent little girls like Hattie Williams, when he ought to have been at home with his wife and children”

—-and further:

“He is charged with rape, it is true, but I haven’t got anything to do with that, the district attorney will take care .of that.”

Exceptions to these remarks were promptly reserved and special charges asked, but without avail. These remarks were improper. There is no evidence in the record that appellant had committed rape upon the Hobbs girl, or that he committed rape at all. This was a statement by the county attorney outside the record. It is also stated in the bill that the county attorney referred to other and different offenses that were not in evidence, and which defendant had no opportunity to defend, and that such argument and statements were not justified nor warranted by any evidence in the record. This was error, and of such a nature that it requires a reversal of the judgment. Upon another trial the prosecuting officer will refrain from using such language.

Charges were asked by appellant’s counsel and refused by the court. Among others, this charge was asked:

“You are instructed at the request of the defendant that in this character of case it is incumbent-on the state to prove beyond a reasonable doubt that the defendant gave the intoxicating liquor, or caused it to be given, if he did so, to the prosecuting witness, Iiattie Williams, knowing at the time that she was under 21 years of age; and, unless you find from the evidence beyond a reasonable doubt that defendant gave intoxicating liquor to Hattie Williams, and knew at the time he did so that she was a minor, you will acquit him, and so say by your verdict.”

This charge ought to- have been given in view of the fact that the only evidence in the record as to the minority of the girl was that she was 17 last July,, and only this evidence was introduced. The authorities cited above with reference to this matter as collated by Mr. Branch, we think, demand that this charge be given the jury..

The judgment will be reversed, and the cause remanded. 
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