
    BLAKE v. STATE.
    (No. 6543.)
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1921.)
    I. Criminal law <@=>338(4,5) — Evidence of an act not connected with accused not admissible.
    In prosecution for unlawfully possessing intoxicating liquor, evidence that after the indictment was filed the sheriff and a person aiding him were out near accused’s house in search of whisky stills, and one witness found a woman’s tracks going down to a branch a short distance back of accused’s house, and, upon following the tracks, found some whisky had been poured out of four bottles, a small quantity remaining in one of them, held inadmissible for any purpose, accused being in no way connected therewith.
    2. Criminal law <@=>673(2) — Failure by instruc-tion to limit effect of evidence held error.
    Failure to limit, by instruction, the purpose of evidence of matters occurring after fifing of the indictment, to the issue of suspended sentence, upon request so to do, held error, and not excused by the fact that the district attorney stated that such evidence was offered for no purpose except on the issue of suspended sentence.
    Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
    William Blake was convicted of unlawfully possessing intoxicating liquor, and appeals.
    Reversed and remanded.
    J. H. Benefield and P. G. Hendérson, both of Jefferson, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appeal is from conviction for unlawful possession of intoxicating liquor, punishment being assessed at one year in the penitentiary.

The indictment was filed December 1, 1920, and alleged the date of the offense to be September 9, 1920. ' Upon the trial of appellant, over his objection, the state was permitted to prove that about the middle of B’ebruary, 1921, the sheriff and a party who was aiding him were out near appellant’s house in search of whisky stills, upon which occasion one witness found the tracks of a woman going down to a branch a short distance back of appellant’s house, and upon following these tracks found where some whisky had been poured out of four bottles, a small quantity of whisky remaining in one of them. The bills of exceptions presenting this matter are not as definite as they should be, but we fail to see from the record where either witness claims to have seen the woman pour the whisky out, or to have identified her in any way, although it appears to have been the supposition that it was appellant’s wife. It seems to have been the theory of the state that this testimony was admissible on the issue of suspended sentence, although it was a transaction occurring subsequent to the date of the alleged offense, and subsequent to the filing of the indictment. The testimony would not be admissible under any circumstances, nor for any purpose, unless the appellant was in some way connected with the act sought to be shown. After having let this testimony in, the court failed to limit the purpose of it, to the issue of suspended sentence, although requested so to do in a proper charge. In approving the bill to his refusal to give this special charge referred to, the court explains the' same by saying that—

The “district attorney said to the court and in the presence of the jury, and in their hearing, that it was offered for no purpose except on the issue of suspended sentence.”

While this may have been true, it would not relieve the court of the necessity of giving the jury the requested charge, for no statement made by the district attorney would take the place of a direct instruction from the court as to the purpose for which such testimony was admitted. What we have had to say with reference ho the question raised by the foregoing bill of exceptions applies also to certain testimony admitted with reference to the killing of one Lee Brooks, and whisky having been found in his possession at the time, and which was also subsequently found in his grip at appellant’s house. This transaction also seems to have been subsequent to the filing of the indictment in this case. We do not desire to be understood as expressing the opinion that the evidence complained of would be admissible on the issue of suspended sentence, even though appellant’s connection with the transactions had been shown. We have confined our discussion to the error in not limiting it to the purpose for which the court did admit it.

In this case attention is called to the fact that by the Acts of the Second Called Session of the Thirty-Seventh Legislature, p. 233, what is known as the Dean Law was so amended that the possession of intoxicating liquor is not an offense at this time, unless for the purpose of sale.

For the errors pointed out, the judgment of the trial court will be reversed, and the cause remanded. 
      <§=For other oases see same topic and KBY-NTJMBER in all Key-Numbered Digests and Indexes
     