
    HOLLIMAN v. STATE.
    (No. 10969.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Rehearing Denied Nov. 9, 1927.
    1. Intoxicating liquors &wkey;>216 — Indictment, charging possession for sale of “liquors capable of producing intoxication,” held sufficient, though liquor might have been lawfully possessed and sold (Pen. Code 1925, art. 666).
    Indictment charging that defendant “did unlawfully possess for the purpose of sale liquors capable of producing intoxication,” held sufficient, under Pen. Code 1925, art. 666, notwithstanding defendant’s contention that purported liquor consisted of intoxicating fruit extract, which could be lawfully possessed and sold.
    2. Indictment and Information &wkey;>IO — That evidence before grand jury and on trial will not sustain allegations will not invalidate indictment.
    That evidence had before grand jury and adduced on trial for possession of intoxicating liquor for sale will not sustain allegations of indictment will not in itself invalidate the indictment.
    3. Indictment and information <&wkey; 10 — Courts will not inquire Into sufficiency of evidence before grand jury.
    Courts will not go behind grand jury’s action and inquire what evidence was before them when they were considering whether to present indictment.
    4. Criminal law &wkey;>956( 13)— Refusal of new trial for misconduct of jury in receiving new* testimony held not abuse of discretion; there being no sufficient showing that such testimony was received before verdict.
    Where court was warranted in reaching conclusion from jurors’ testimony as to new evidence, received after retirement that no new testimony was received before the verdict was reached, refusing new trial for possessing liquor for sale held not abuse of discretion.
    5. Criminal law <&wkey;811 (2) — Instruction! that hiding intoxicating extract would not evidence guilt held to single out evidence.
    Instruction, in prosecution for possessing intoxicating liquor for sale, that hiding intoxicating fruit extract which it was permissible to sell, unless sale was for beverage purposes, would not evidence guilt, held properly refused, since it singled out portions of evidence, and charged on the weight thereof.
    6. Criminal law <&wkey;763, 764(6) — Instruction that amount of intoxicating extract possessed could not evidence guilt held properly refused as on weight of evidence.
    Offered instruction, in prosecution for possessing intoxicating liquor for sale, that amount possessed of intoxicating fruit extract, which it was permissible to sell except for beverage purposes, could not evidence guilt, held properly refused, because it charged on weight of evidence.
    7. Criminal law 1056( I) — Applicability of charge, in prosecution for possessing liquor for sale, held not reviewable, where no exception was reserved (Pen. Code 1925, art. 671).
    Applicability of charge under Pen. Code 1925, art. 671, providing that possession of more than a quart of intoxicating liquor shall be prima facie evidence of guilt, held not reviewable, where no exception to it was reserved.
    8. Intoxicating liquors <&wkey;I34 — Intoxicating fruit extract sold as beverage became “intoxicating liquor” under statute (Pen. Code 1925, arts. 666, 667, 672, 673).
    Where intoxicating fruit extract, which it was not unlawful to sell except for beverage purposes, was sold as a beverage, it became an “intoxicating liquor” under the provisions of Pen. Code 1925, arts. 666, 667, 672, 673.
    [Ed. Note. — For other definitions', see Words and Phrases, First and Second Series, Intoxicating Liquor.]
    9. Intoxicating liquors <&wkey;236(l3) — Where intoxicating fruit extract was sold as beverage, jury could consider amount possessed as evidence of possession of “intoxicating liquor” for sale (Pen. Code 1925, arts. 666, 667, 671— 674).
    Where intoxicating fruit .extract which it was permissible to sell, except for beverage purposes, was sold as beverage, it became “intoxicating liquor,” under Pen. Code 1925, arts. 666, 667, 672, 673, and jury were warranted under article 671 to consider amount possessed as evidence of possession of intoxicating liquor for sale, notwithstanding article 674.
    10. Intoxicating liquors <&wkey;236(7) — Evidence held to support conviction for possessing liquor for sale.
    Evidence held sufficient to support conviction for the possession of intoxicating liquor for the purpose of sale.
    11. Criminal law <&wkey;823(4) — Instruction, without qualification, that possessing intoxicating liquor for sale violated law, if error, held harmless, where followed by instruction explaining exception as to fruit extracts which defendant possessed.
    Where defendant, in prosecution for possessing intoxicating liquor for sale, possessed fruit extracts which it was lawful to sell, except for beverage purposes, instruction that possession for sale of liquors capable of producing intoxication, by whatever name liquors might be called, violated the law, if error, held harmless, where exception as to fruit extracts was fully explained in following instruction.
    
      12. Intoxicating liquors &wkey;>239(5) — Charge setting standard for determining when liquor usable 'as beverage was capable of producing intoxication held not susceptible of construction that any liquor so usable which would produce intoxication was “intoxicating liquor.”
    Charge, in prosecution for possessing intoxicating liquor for sale, that any liquor intended for use as beverage or capable of being so used which contained alcohol enough to produce intoxication when taken by ordinary person in reasonable quantities, was liquor capable of producing intoxication, where defendant possessed fruit extracts which it was lawful to sell, except for beverage purposes, held/ merely to set standard for determining when liquor usable as beverage was capable of producing intoxication, and not susceptible of construction that any liquor usable as beverage which would produce .intoxication was “intoxicating liquor.”
    13. Criminal law <&wkey; 1120(8) — -Bill objecting to admission of testimony, n.ot containing sufficient statement of facts to enable appellate court to determine question, presents no error.
    Where bill of exception, on appeal from a conviction, objecting to admission of testimony, does not contain a sufficient statement of the facts involved to enable appellate court to determine the question of error, no error is presented.
    14. Criminal law <&wkey;>ll7l(3) — District attorney’s argument that prohibition law would fail, if persons like defendant could sell “damnable peach extract,” if error, held harmless.
    In prosecution for possessing intoxicating liquor for sale, district attorney’s argument to the jury that “you can never enforce your prohibition law,” so long as little merchants like defendant are allowed to sell “this damnable peach extract, containing 50 and 54 per cent, alcohol,” if error, held, harmless, where based on evidence.
    On Motion for Rehearing.
    15. Criminal law <&wkey;>925i/2(3) — Where uncon-tradicted testimony on trial for possessing liquor for sale showed extract was intoxicat- • ing, refusing new trial for juror’s statement to that effect after retirement, not certainly made before verdict, held not error.
    Where uncontradicted testimony on trial for possessing intoxicating liquor for sale showed that fruit extract possessed by defendant was intoxicating, refusing new trial for juror’s statement to that effect after x'etirement, which was not certainly shown to have been made before the verdict was reached, held not abuse of discretion.
    Commissioners’ Decision.
    Appeal from District Court, Rusk County; R. T. Brown, Judge.
    Clarence Holliman was convicted of the possession of intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    McDavid & McDavid, of Henderson, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both óf Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for one year.

The facts upon which the prosecution was based are these: Officers found in appellant’s store 300 or 400 empty bottles, labeled peach, pear, and apricot extract, and in his smokehouse in a large box, well covered up with wheat bran, 400 or 500 bottles of extract. Tjhis extract was capable of being used as a beverage and of producing' intoxication. One witness for the state bought four bottles of pear extract from appellant at one time, and at the time of th^ purchase appellant did not have it on the shelves in his store, but went elsewhere to get.it. The witness drank three bottles of the extract during the day; none of it being drunk in appellant’s store. The witness’s wife, in attempting to use the extract in baking cakes, found it unsuitable. The sheriff testified that he had seen and arrested drunken men around appellant’s place of business.

Appellant contends in his brief that the indictment is fatally defective, because the purported liquor consisted of extract which could be lawfully possessed and sold. The indictment, in charging that appellant “did then and there unlawfully possess and have in his possession for the purpose of sale, liquors capable of producing intoxication,” is in substantial compliance with the language of the statute, and conforms to the indictment sustained by this court in the case of Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090. Article 666, Penal Code; Nowells v. State, 94 Tex. Cr. R. 571, 252 S. W. 550. The fact that the evidence heard by the grand jury and adduced on the trial of the case might not sustain the allegations contained in the indictment would not in itself invalidate the indictment. The courts will not go behind the action of the grand jury to inquire as to what evidence they had, or did not have, before them when considering whether or not they would present an indictment. See Branch’s Annotated Penal Code, § 484, p. 251, and authorities cited. The indictment being sufficient, appellant’s contention cannot be sustained.

Appellant’s second complaint is that the jury, after having retired to deliberate upon the case, received other testimony. The specific complaint is that one of the jurors said he had drunk flavoring extract, and knew it would make a man drunk, and that the statement was also made by a juror that from his personal knowledge whisky and water, when mixed in equal quantities, would produce intoxication. The testimony shows that some of the jurors heard the statements complained of, while others were unconscious that such statements had been made. Several of the jurors testified that the verdict had been reached before the statements were made. None of the jurors testified that the statements were made before the verdict was reached. Appellant received the minimum term. In this condition of the record, the court was warranted in reaching the conclusion that no testimony was received by the jury, after its retirement, before the verdict was reached. It follows that the trial court did not abuse his discretion in refusing a new trial on the ground of misconduct.of the jury. Harrison v. State, 104 Tex. Cr. R. 168, 283 S. W. 173.

Appellant’s bill of exception No. 2 assigns as error the failure of the court to instruct the jury to the effect that if, after the officers notified appellant that it was a violation of the law to sell the extract offered in evidence, appellant withdrew such extract from sale, and stored it in his smokehouse, in the hope of returning it to the person from whom it was purchased and receiving credit therefor, it was immaterial whether such extract was covered up or hidden, as the covering up or hiding of such extract would be no evidence of appellant’s guilt. The court states in his qualifications of the' bill that the charge was refused because it was on the weight of the evidence, and further because it was covered by the main charge. The court ruled correctly in refusing to give this charge. It singles out certain portions of the evidence in the case, and is a charge on the weight thereof.

By bill of exception No. 3, appellant complains of the action of the court in refusing to instruct the jury, as requested by him, that he had a perfect legal right to purchase any amount of the extract introduced in evidence that he might desire to purchase, and that the amount of extract possessed by him on the date mentioned in the indictment was immaterial, and could not be considered as evidence of his guilt, and, further, that he could not be convicted, unless the jury believed beyond a reasonable doubt that he was knowingly and unlawfully selling such extract as a beverage, even though he was carrying an unusually large stock for his trade. The court qualifies appellant’s bill of exception with the statement that the charge was refused because on the weight of the evidence, and further because the matters^ embodied therein were covered in the main charge. The court’s action must be sustained. The instruction requested is clearly a charge on the weight of the evidence.

Appellant takes the position that the requested instruction should have been given for the reason that possession of flavoring extract for the purpose of sale cannot constitute an offense, in the absence of proof showing that such extract is capable of producing intoxication and is being sold as a beverage. He contends that article 671 P. C. 1925, providing, in substance, that proof of possession of more than one quart of intoxicating liquor shall be prima facie evidence of guilt, but that the defendant shall have the right to introduce evidence showing the legality of such possession, does not apply to the. possession of more than a quart of flavoring extract, and that the burden of proving a sale of such extract as a beverage must be discharged by the state before a conviction for the offense of possessing intoxicating liquor for purpose of sale can be sustained. Appellant predicates his proposition on the fact that article 674, P. C., excepts from the provisions of articles 666, 667, 672, and 673, P. 0., flavoring extract when manufactured and sold for a lawful purpose and not as a beverage. Appellant reserved no exception to the action of the court in charging the provisions of article 671, P. C., and the question of the applicability of this charge to the facts cannot be reviewed. Further, the determination of the point presented by appellant’s bill of exception No. 3 dobs not require us to decide whether the state is required to show a sale of extract as a beverage in order to bring it within the definition of intoxicating liquor. The evidence in this case is sufficient to show a sale of the extract in question as a beverage, and that such extract was capable of producing intoxication. Being sold as a beverage, and as such being intoxicating, it became an intoxicating liquor under the provisions of articles 666, 667, 672, and 673, P. C. Davis v. State, 106 Tex. Cr. R. 425, 292 S. W. 1109. It follows that appellant was subject to. prosecution for possessing intoxicating liquor1 for the purpose of sale, and that, in deliberating upon a verdict, the jury were warranted in considering the amount of extract possessed by him as a circumstance bearing on the issue of guilt.

Appellant complains of the action of * the trial court in refusing to instruct the jury to return a verdict of not guilty. We think the evidence was sufficient to sustain the verdict of the jury.

By bill of exception No. 5 appellant complains of the action of the court in charging the jury as follows:

“You are instructed that the laws of the state of Texas provide that, if any person shall either directly or indirectly possess, for the purpose of sale, liquors capable of producing intoxication, by whatever name it may be called, he shall be deemed guilty of a violation of the law, and provides a penalty of not less than one, nor more than five, years in the state penitentiary.”

Appellant’s objection to this charge is that it denied appellant the right to possess the extract in Question for the purpose of sale, regardless of whether said extract, was to be sold legally or ■ illegally. The court states in his qualification of the bill that the matter complained of by appellant was fully explained in the main charge. An inspection of the court’s charge shows that immediately following the instruction complained of by appellant an instruction was given, which reads as follows:

“It is not unlawful for any person to possess for the purpose of sale extracts, known as peach, pear and apricot, and the medicinal preparation known as Jamaica ginger or jake, when possessed and sold for any purpose other than as a beverage, even though the same may be intoxicating liquor, but it is unlawful to possess for the purpose of sale either of such preparations when the same is possessed and sold as a beverage provided such preparations are intoxicating liquor.”

We are unable to see how appellant could have been prejudiced by the charge complained of when it is considered in connection with the succeeding instruction. We-are constrained to overrule appellant’s contention.

By bill of exception No. 6, appellant complains of the use of the terms “or capable of being so used” found in paragraph 2 of the court’s charge. Paragraph 2 reads as follows:

“Any liquor intended for use as a beverage, or capable of being so used, which contains alcohol, either obtained by fermentation, or by the additional process of distillation, or whatever name it may be called, in such proportion that it will produce intoxication, when taken or drank in reasonable quantities by an ordinary person and that will produce intoxication, when taken or drank in such quantities, is liquor capable of producing intoxication, within the meaning of the law.”

Appellant objects to this charge on the ground that the use of the terms “or capable of being so used” abridged the right of appellant to possess intoxicating liquor under conditions which might be lawful, and deprived him of the benefit of paragraph 4 of the court’s charge to the effect that the possession of extract was lawful when possessed and sold for any purpose other than as a beverage, even though the same was an intoxicating liquor.

Appellant’s contention cannot be sustained.' It was incumbent on the state to show that the liquor in question was an intoxicating liquor. Primarily, under the indictment in this case, it was necessary for the facts to show that the liquor possessed by appellant was a liquor capable of producing intoxication. In the charge in question, the court undertook to announce a standard by which the jury could determine whether a liquor intended for use as a beverage, or capable of being so used, was capable of producing intoxication. Appellant’s bill of exception does not challenge the sufficiency of the standard announced by the court, but is restricted to the criticism that the court, in effect, instructed the jury that any liquor capable of being used as a beverage, which would produce intoxication, was an intoxicating liquor. We are unable to agree with appellant that the charge is susceptible of this construction.

By bill of exception No. 7 appellant complains of the action of the court in admitting, over his objection, testimony that jake, or Jamaica ginger, if drunk by a man in an ordinary way, would produce intoxication. The bill manifests no error, in that it does not contain a sufficient statement of the facts involved to enable this court to determine the question of error. See Branch’^ Annotated Penal Code, § 207, p. 131.

By bill of exception No. 8 appellant complains of the action of the district attorney in taking a bottle of the extract introduced in evidence in his hand in view of the jury, and saying in his argument:

“You can never hope to enforce your prohibition law as long as these little merchants like Clarence Holliman are allowed to sell this damnable peach extract containing 50 and 54 per cent, alcohol.”

Appellant objected to this argument, and requested the court to withdraw the remarks .from the jury and instruct them not to consider such remarks. The court refused the request, and, as a' qualification of appellant’s bill, states that the district attorney was drawing conclusions from the testimony, and that the extract exhibited to the jury had been offered in evidence without objection.

We do not believe that the argument complained of is of the character that would call for reversal. Particularly is this true in view of the fact that the evidence was sufficient to warrant a conviction, and that appellant received the minimum penalty.

Finding no error, the judgment is affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant seeks a rehearing on the ground of misconduct of the jury. The rules governing new trials for alleged misconduct of the jury have often been discussed. In the comparatively recent case of Ross v. State, 98 Tex. Cr. R. 567, 267 S. W. 499, we stated some of them. It is there stated that there must be averment and proof of the receipt by the jury in retirement of new evidence of a material nature,which appearing, the presumption of injury to the accused obtains, unless the contrary is made to appear. It is also stated that, if tlie proof of the receipt of such evidence is conflicting, the conclusion of the trial court will not be overturned, citing Todd v. State, 93 Tex. Cr. R. 559, 248 S. W. 695. It is also said in the opinion that, if the materiality of the evidence given by jurors in the jury room is doubtful, the discretion of the trial court in overruling the motion for new trial will not be held to have been exceeded, citing Holt v. State, 51 Tex. Cr. R. 15, 100 S. W. 156, and other authorities. The point at issue in the Ross Case, supra, as in the instant case, was misconduct of the jurors, consisting of their Laving made statements of facts in their retirement, hurtful to the accused. We think it might be fairly added to what was said in the Ross Case that we would not hold the refusal of a new trial, sought on account of statements made by one juror to others in the jury room, was erroneous or an abuse of the discretion of the trial court, when the evidence heard left in doubt the question as to whether the matter complained of occurred before or after the verdict was agreed upon by the jury. Looking to the record before us, we find that on the hearing of the motion for new trial eleven jurors testified — three on behalf of appellant and eight for the State. Shumate for appellant said he heard a juror say that water mixed with whisky in proportions of half and half would produce intoxication. He also said he heard something said in the jury room about extracts making a man drunk, and was of opinion that at the time he heard these statements made the jury had already agreed on the guilt or innocence of the accused. Mr. Hackney, next juror for appellant, testified that he heard a fellow juror say after retirement- of the jury, that extracts would make a man drunk, because he had imbibed some. Hackney thought the juror saying this was Shumate, and testified: “At least that is the way I understood him.” This juror was not certain whether this was before or after the verdict was reached, but was inclined toward the view that it was before. Clinton, the third juror for appellant, testified that he hear a juror say that he had drunk extracts, and knew it would make a man drunk, while they were in retirement. He did not know who said it, nor was he able to say whether the jury had made up their verdict or not. Eight jurors testified for the state that they heard no one .make, any statement in the jury room that he had imbibed extracts and knew it would make a man drunk. In this connection we observe that the uncontradieted testimony in the statement of facts shows that the extract in question was capable of producing intoxication, and two witnesses testified they had seen men drunk .from drinking it. No witness testified that it was not intoxicating. This being the state of the case, we fail to see how the statement of a juror during1 retirement, even if made, to the effect that he knew extracts would make a man drunk, because he had imbibed, could injure the rights of the appellant. His sole defense in the case was that he did not possess it for the purpose of sale; that he had been.selling it, but his place had been visited by officers before the time in question, and he had then been informed by said officers that it was illegal to sell the extracts, and he claimed to have withdrawn them from sale, and that he was holding them. simply for the purpose of getting his money from those from whom he bought same, at a time when he thought he had the right to sell said extracts. We thus perceive that there were two issues arising upon the testimony heard in connection with the motion for new trial which were left in doubt, viz. the materiality of the disclosures in the jury room, and also the question as to whether the jury had arrived at a verdict before said disclosures, if any, were made. We do not think the record reflects any abuse of the discretion of the trial judge in refusing a new trial upon the showing made.

Appellant also seriously contends in his motion that the evidence does not sufficiently support the verdict. The record shows that appellant, at some time'prior to that here charged, was engaged in the sale of extracts which were capable of producing intoxication. He claimed that, because the officers informed him of the character of such liquor, he withdrew it from sale, and that,he at no time thereafter possessed it for purposes of sale. He said that, at the time the officers came to his place, he had the extracts upon the shelves, but took them and put them away in his smokehouse. He admitted the' receiving Of a quantity of such extracts after the visit of the officers, but claimed that he also put these extracts so received away, and did not sell any of it. Looking to the state’s case, we observe that, in addition to the fact that the officers found in and around appellant’s premises a large number of empty extract bottles, and found in his smokehouse in a large container, and covered with bran, nearly 600 bottles of said extract, the state also introduced a witness who testified that he bought from appellant a number of bottles of extract, most of which he drank, and that at the time he bought it the extract was not on the shelves, and that appellant had to go out somewhere and get it. We are not disposed to believe the record so bare of evidence supporting the verdict as to justify us in setting aside the conclusion reached by the jury.

Appellant again renews his complaint of the argument of the state’s attorney. The argument complained of is quoted in the original opinion. We are not impressed with the seriousness of the objection. The bottles containing the liquor alleged to have been possessed by appellant for purposes of sale were in evidence, and, according to the testimony, showed upon the label the quantity of alcoholic content. In the argument objected to, the state’s attorney referred to the liquor as “damnable peach extract containing 54 per cent, alcohol.” We do not believe the argument unwarranted by the evidence. •

Being unáble to agree with appellant’s contentions, the motion for rehearing is overruled. 
      <§xoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     