
    THOMAS v. STATE.
    (No. 8736.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    On Motion for Rehearing June 17, 1925.)
    1. Criminal law 1086 (14) — Refusal to give special charges not error, where not presented to judge before charge read to jury. •
    In a prosecution for selling intoxicating liquors, refusal of. judge to give special charges cannot be considered on appeal, without doing violence to Vernon’s Ann. Code Or. Proe. 1916, arts. 737a, 743, where bill of exceptions fails to show that they were presented to the judge before charge was read to jury, as required by article 735.
    2. Criminal law <®=>35l(3) — Evidence of sheriff, showing circumstantially that accused fled during inquiry, admissible.
    ■ In prosecution for selling intoxicating liquors, evidence of sheriff, showing circumstantially that the appellant had fled during the court of inquiry and was afterwards arrested in another place, was properly received.
    3. Witnesses <§»255(9), 257 — Former statement of witness could be used to refresh his 'memory, but not as original testimony against accused.
    In prosecution for sale of intoxicating liquors, where witness was unwilling or unable to identify accused, his memory may be refreshed by calling his attention to a former statement made by him; but it was error to introduce such former statement as original evidence, to be used by jury to prove guilt of accused.
    4. Criminal law <§=u>957(5)»_Hearing evidence of jurors, on motion for new trial, as to effect they gave statement of witness before grand jury, improper method of impeaching verdict.
    Where accused, convicted of sale of liquor, made a motion for a new trial, it was an improper method of impeaching verdict to hear evidence of jurors, on such motion, as to their consideration of statement of witness made before grand jury.
    Commissioners’ Decision.
    Appeal from District Court, Montague County; Paul Donald, Judge.
    
      O. E. (Shorty) Thomas was convicted of selling intoxicating liquors, and he appeals.
    Reversed and remanded on motion for rehearing.
    J.- S. Jameson, of Montague, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

Appellant was convicted in the district court of Montague county for selling intoxicating liquors, and his punishment assessed at one year’s confinement in the penitentiary.

The record discloses that the appellant filed no exceptions to the charge of the trial court, but complains of the refusal of the court to give his special charges to the jury, and brings forward said complaint in his bills of exceptions. Neither the special charges nor the bills of exceptions relating thereto show that they were presented to the court before the general charge was read to the jury, as required by Vernon’s O. O. P. art. 735, and for that reason we are unauthorized under the law to consider same.

Appellant also complains of the action of the court in not granting him a new trial for the alleged misconduct of the jury while considering their verdict. This bill of exceptions shows the court heard testimony to the effect that some of the jurors considered statements made by the witnesses on the stand which was supposed to have been testified to by said witnesses in the grand jury. The court, after Bearing the evidence, overruled the motion for a new trial, and we see no error therein. Esquivel v. State, 93 Tex. Cr. R. 125, 246 S. W. 399; Branch, Ann. Statutes, § 575.

The other bills of exceptions in tbe record complain of the admission of testimony upon the part of the state to the effect that the sheriff and other state’s witnesses testified that they did not find the defendant in the town of Noeona on the day they held a court of inquiry there, alleging that said testimony was injurious to the defendant, in that it did not show that he was guilty of the offense charged against him. We fail t;o find any harmful error in this particular. The defendant failed to testify in the case, and the evidence showed that, about the time inquired about, he had left* and gone to Oklahoma, and in view of the record we are unable to see how the defendant was injured in this particular.

There is also complaint made of the action of the court in permitting, the attorney for the state to exhibit to the state’s witnesses the alleged testimony of said witnesses before the grand jury, and to ask them concerning their signing same, and whispering to said witnesses while upon the witness stand, but do not state what the county attorney said, nor what the statements contained, and in this particular said bills are defective, and we cannot consider same. Branch, Ann. P. C. §§ 207, 210.

We have carefully examined the entire record in this case, and are of the opinion that the defendant has had a fair trial, and the judgment of the trial court should he affirmed; and it is accordingly so ordered.

PER CURIAM.

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.

MORROW, P. J.

The witness Bowdry testified that on the date set out in the indictment he purchased from the appellant a quart of whisky; that a part of the money was contributed by some other boys, who, on the night that the whisky was acquired,' took part in consuming it. Erom Bowdry’s testimony we take the following quotations:

“I am acquainted with Shorty Thomas, but not very well. I know him when I see him, and the defendant sitting there is Shorty Thomas. I suppose that is Mm. * * * I bought a quart of liquor from Shorty Thomas. I don’t remember exactly what I paid him for it, but it was somewhere around $4. * * ⅜ I don’t know what kind of liquor it was, I never saw anything like it. * * * I did not know Shorty Thomas before I went up there, but, whatever the stuff waS that we bought, I suppose I bought it from Shorty Thomas, if that is Shorty there. It was dark when we went there, and at the time that we boys went there I didn’t absolutely know who lived at the place we went, but I had heard that Shorty Thomas - lived there. I. couldn’t be sure he is the man.”

The witness further said that the liquor did not taste like whisky and that it would not intoxicate. Others who were with the witness did not see the person from whom the liquor was obtained. The transaction was at night.

The refusal to give special charges when the record fails to show by bill of exceptions that they were presented to the judge before the charge was read to the jury cannot be considered upon appeal without doing violence to the express terms of the statute. Articles 737a and 743, C. C. P. In none of the bills complaining of the refusal of special charges is it shown that they were presented to the court before the charge was read to the jury. The. decisions construing the statute which inhibit the consideration of bills in this shape are numerous. See Gill v. State, 84 Tex. Cr. R. 531, 208 S. W. 926; Lucas v. State, 88 Tex. Cr. R. 166, 225 S. W. 257; Bargas v. State, 86 Tex. Cr. R. 217, 216 S. W. 172.

The evidence of the sheriff, showing circumstantially r that the appellant had fled during the court of inquiry and was after-wards arrested in Noeona, was properly received. See Underbill’s Crim. Ev. (3d Ed.) § 203.

From bill of exceptions No. 6 we take the following:

“Tlie county attorney was permitted to exhibit to the witness Bill Bowdry — the only state witness introduced on the question of the alleged sale of whisky by the defendant — a written instrument which the county attorney referred to as Bowdry’s statement before the grand jury, and was permitted to hold a whispered conversation with said witness, and was permitted to read from said written instrument a purported statement of the witness Bill Bow-dry to the effect that witness had gone to the home of Shorty Thomas in Nocona, Tex., and bought whisky from defendant, Shorty Thomas, paying him the sum of $4, all in the presence of the jury. And he was thereafter permitted to prove by said witness that witness did in fact make the statements contained in said written instrument before the grand jury, and that he signed the said statement.”

The testimony of the witness Bowdry was unsatisfactory to the state. He was unwilling or unable to identify the appellant as the person from whom the liquor had been purchased, or to characterize the article purchased as intoxicating liquor. It is made to appear that, when the witness was before the grand jury, he was more definite in both of the particulars mentioned, and it is obvious that upon the trial of the case the weakness of his testimony there given was fortified and supplemented by that which he had given before the grand jury, which had there been reduced to writing and signed by the witness. The mere fact that the witness failed to identify the appellant or to declare the character of the liquor did not authorize the use of the statement which he had made out of court as original testimony against the accused. Under some circumstances, as where the state’s counsel is surprised by his witness giving hurtful testimony against the state, his prior statement out ,of court may be used to impeach him. So, when his testimony is indefinite, his memory may be refreshed by allowing him to examine, or by calling his attention to, his former statement. In neither event, however, can his former statement be introduced as original evidence, to be used by the jury to prove the guilt of the accused. See Bryan v. State, 90 Tex. Cr. R. 175, 234 S. W. 83; Katz v. State, 92 Tex. Cr. R. 629, 245 S. W. 242; Whitman v. State, 93 Tex. Cr. R. 200, 246 S. W. 1037; Heffnarn v. State (Tex. Cr. App.) 266 S. W. 507; also article 815, C. C. P., Vernon’s Tex. Crim. Stat. 1916, vol. 2, p. 763; Cyc. of Law & Proc. vol. 40, p. 2451. The mere fact that a witness is reluctant or unwilling, while it may justify leading questions, will not warrant the introduction before the jury of his statements out of court. Floyd v. State, 29 Tex. App. 356, 16 S. W. 188. Under each of the propositions mentioned, there will be found in the opinions of this court, to which reference has been made, citation of numerous older cases.

The record before us leaves upon the mind of the writer no doubt but that the statement of the witness Bowdry, made before the grand jury, was introduced upon the trial of the appellant in a manner warranting its appropriation. by the jury as original evidence of the guilt of the appellant upon the leading issue in the case. If, for the’purpose of refreshing the memory of the witness, state’s counsel desired to use the statement which the witness had signed, care should have been taken to prevent its use by the jury as testimony against the accused. This could have been accomplished, either by permitting the witness to read the statement without disclosing its contents to the jury, or by retiring the jury and conducting an examination in the presence of the court, or by calling the witness from the witness stand and exhibiting the statement to him out of court. One of these methods, or some other, should have been resorted to, rather than the procedure which was adopted. On the hearing of the motion for new trial, the court heard evidence of the jurors to the effect that they considered the statement of the appellant before the grand jury. This was an effort to impeach the verdict of the jury by an improper method, and cannot be considered.

For the reason set forth, the motion should be granted, the affirmance set aside, the judgment of the trial court reversed, and the cause remanded. 
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