
    HILL v. STATE.
    (No. 7758.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.
    Rehearing Denied Oct. 31, 1923.)
    1. Criminal law <@=621 (2) — Refusal to require state to try another first whose testimony was desired by defendant, held not error.
    In a prosecution for the sale of liquor, refusal of the court to require the state to try another before defendant on the ground that such other was indicted for an offense growing out of the same transaction involved in defendant’s ease, and that defendant did not believe there was sufficient testimony to convict such other whose testimony was material to defendant’s case, was not error where such other was charged only with manufacture and possession for the purpose of sale, and not with any character of complicity in the offense charged against defendant.
    2. Criminal law <&wkey;459 — Testimony that liquor bought from defendant and exhibited to jury was whisky held admissible.
    In a prosecution for selling intoxicating liquor, testimony by witnesses that liquor which they had purchased from defendant, and which was exhibited to the jury, was whisky, held admissible.
    On Motion for Rehearing.
    3. Intoxicating liquors <&wkey;236(13) — Evidence that liquor sold was intoxicating held sufficient.
    Evidence that liquor sold was intoxicating held sufficient.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    U. E. Hill was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Baskett & De Lee, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of the offense of selling intoxicating liquor, and his puhishment fixed at one year in the penitentiary.

Complaint is made of the refusal of the trial court to require the state to try one S. H. Hill before proceeding with the trial of appellant. Appellant presented this in the form of a written request, in which it was Stated that S. H. Hill was indicted in cause No. 6464, entitled State of Texas v. S. H. Hill, for an offense growing out of the same transaction involved in the instant prosecution, and it is stated in said motion that petitioner believes there is not sufficient evidence to secure the conviction of said Hill, and that his testimony is material to the defendant’s cause. The bill of exceptions is qualified by a statement of the learned trial judge in terms that S. H. Hill was not charged with the same offense for which appellant was tried. It is made to appear that said S. H, Hill was charged with the manufacture of intoxicating liquor and the possession of same for purposes of sale, and that he was not charged with selling liquor. The count in the indictment against the appellant upon which this trial was had charged him with the sale of liquor to one W. D. Fannin. The offenses .involved not being the same, we see no reason why the appellant might not have used S. H. Hill as a witness in his behalf. It is further made to appear by the qualification of. the trial court that when this motion was. presented the district attorney announced to the court that the state relied only on the third count in the indictment. We see no error in the ruling of the court below in view of the qualification mentioned. The offenses charged against S. H. Hill, as stated above, were manufacturing in one count, and in another the possession for purposes of sale, of intoxicating liquor. The offens.e charged against appellant was the sale of intoxicating liquor. Appellant was not charged as an accessory, accomplice, or a principal to the offenses charged against S. H. Hill, nor was S. H. Hill indicted for any character of complicity in the offense charged against appellant. In no legal sense kiowa to us could it be said that the offense charged against either grew out of the same transaction charged against the other.

Appellant complains of the action of the learned trial judge in' permitting the state to prove by witnesses Fannin, McClure, and Bradshaw that the liquor contained in certain fruit jars exhibited before the jury was whisky. As we understand it, appellant’s complaints are based on the question of the lack of knowledge of said witnesses as to the character of the contents of said jars. We observe that witness Fannin testified that about the date alleged in the indictment he bought from appellant certain whis-ky, paying him therefor the sum of $10. Certain half-gallon fruit jars were 'brought into court and exhibited to witness, who said that he haá seen them before, and that the liquor in said fruit jars was whisky, and that it looked like some stuff he bought from appellant. He testified that when he got to town after purchasing the whisky he turned it over to the jailer, Mr. Wilson; that Mr. Seale was with him at- the time.

Mr. Bradshaw was used as a witness for the state, and testified that Mr. Seale and Mr. Wilson delivered to him about the date alleged in the indictment the fruit jars of liquor that were exhibited before the jury. He said that in his opinion the liquor in the jars was whisky. Another witness, Mr. McClure, testified that he had tasted the liquor, and that it was whisky. We see no error in permitting said witnesses to testify that the liquor bought from appellant and exhibited before the jury was whisky.

We regret our inability to agree with appellant’s contention that the evidence does not support the verdict.

Finding no error in the record, an affirmance will be ordered.

On Motion for Rehearing.

MORROW, P. J.

The indictment contains three counts: The first charging the .manufacture of intoxicating liquor; the second, the unlawful possession of intoxicating liquor; and the third, the sale of intoxicating liquor to W. H. Fannin. That charging the sale was alone submitted to the jury; the others were abandoned.

S. H. Hill was charged by separate indictment containing two counts: The first, of the manufacture of intoxicating liquor; the second, of the possession of intoxicating liq-quor. S. H. Hill not being charged with connection with the sale of the intoxicating liquor to Fannin, there was no error in overruling the motion to sever. The reasons for such ruling and the citation of authorities will be found in Cotton’s Case, 92 Tex. Cr. R. 594, 244 S. W. 1027. See, also, Aven’s Case, on motion for rehearing, 253 S. W. 524.

The evidence that the liquor sold to Fannin was intoxicating is deemed sufficient. See Cathey v. State (Tex. Cr. App.) 252 S. W. 534.

The motion for rehearing is overruled.  