
    DESHAZO v. STATE.
    (No. 8473.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.)
    1. Criminal law <©=>371 (10) — In prosecution for possession- of liquor for sale, evidence of previous sale held properly admitted.
    In prosecution for unlawful possession of intoxicating liquor for the purpose of sale, evidence that accused previously sold whisky helé properly received as being relevant to purpose for which whisky was on hand.
    2. Criminal law <©=3814(13) — Instruction, placing burden on accused to show possession of liquor was for excepted purpose, held error as unsupported by evidence.
    In prosecution for unlawfully possessing intoxicating liquor for purpose of sale, giving •of instruction that, if accused possessed the liquor for the purpose charged, burden was on him to show he possessed it for one of the purposes excepted by the statute, helé error; there being no evidence of possession for any such purposes.
    '3. Crimina! law <©=>721 (3) — Argument of state’s attorney held erroneous comment on failure to testify.
    In a prosecution for possession for purpose of sale, remarks of state’s attorney in his argument that, when defendants are found in possession of intoxicating liquors and plead not guilty, they do not take stand to explain purpose for which they possessed it, held violative of Code Cr. Proc. 1911, art. 790, inhibiting comment upon failure of defendant to testify.
    4. Criminal law <©=719(1) — Argument of state’s attorney held improper as new evidence.
    Argument of state’s attorney, that defendant summoned witnesses from R. to impeach designated witnesses, but that “these witnesses told me” in R. that they would swear for state, held not argument, but testimony within the rule prohibiting new evidence to be brought into case by way of argument.
    5. Criminal law <@=>l 171 (I) — Improper argument deemed prejudicial.
    Improper argument of state’s attorney could not be deemed not to have influenced jury who assessed double the minimum penalty.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Bob Deshazo was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    S. M. Adams and Seale & Denman, all of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for .the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of two years.

Without detailing it, the evidence is regarded sufficient to sppport the verdict.

The search warrant and affidavit for the search warrant were introduced in evidence. The objections made were not pertinent. We observe, however, no legal reason for receiving either of these documents in evidence. See Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Gurski v. State, 93 Tex. Cr. R. 612, 248 S. W. 353; Allen v. State, 261 S. W. 1035, No. 8420, not yet [officially] reported. ' '

We think there was no error in receiving evidence that the appellant had previously sold whisky. Such testimony, under certain conditions, is relevant on the purpose for which the whisky was on hand and not too remote to be material. The bill in the present case fails to show that in admitting the evidence the rule of evidence against other offenses was transgressed.

An instruction was given by the court to the effect that if the appellant possessed intoxicating liquors for the purpose of sale, the burden was upon him to show that it was possessed for medicinal, mechanical, sacramental, or scientific purposes. There was no evidence that it was possessed for any of these purposes, and in charging that the burden of proof was upon the appellant to so show, the court was in error. Jones v. State (Tex. Cr. App.) 257 S. W. 895. In view of the charge given upon that subject, however, the court should have given a charge telling the jury that upon the date of the transaction in question, it would not have been unlawful to possess liquor for beverage purposes.

The state’s attorney, in his argument, used this language:

“When defendants are found in possession of intoxicating liquors and plead not guilty, they do not take the stand and explain the purpose for which they possessed it.”

This apparently was violative of the statute inhibiting comment upon the failure of the appellant to testify. In this case, as shown by the bill, the appellant did not give testimony in his own behalf. See article 790, C. C. P.

In his closing remarks, the state’s attorney used this language:

“The defendant summoned witnesses from Rusk to impeach Stovall, Patrick, and Sheffield with, but these witnesses told me in Rusk that they would swear for the state.”

The declaration by the state’s counsel, in argument, that these witnesses had told him that they would swear for the state, was not in the nature of argument but of testimony. Laubach v. State, 12 Tex. App. 591; Askew v. State, 54 Tex. Cr. R. 414, 113 S. W. 287; Branch’s Ann. Tex. P. C. p. 206. The law does not contemplate that new evidence may be brought into the case by way of argument. Branch’s Ann Tex. P. C. § 364.

The jury having assessed against the appellant double the minimum penalty, we are unable to say that they were not influenced by the improper argument.

The judgment is reversed, and the cause remanded. 
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