
    RODRIGUEZ v. STATE.
    (No. 8494.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Nov. 12, 1924.) '
    1. Criminal law <@=»37I(I0)— Evidence that witness bought whisky from defendant month after raid held admissible. '
    In prosecution for possessing for sale liquor seized in raid, under indictment returned four months' thereafter, evidence that witness purchased whisky from accused one month after raid held admissible on question of purpose of possession.
    2. Criminal law <&wkey;678(l) — .State could be required to elect between acts proved, in prosecution for possessing for sale.
    In prosecution for possession of liquor for sale, state, having proved seizure of 15 or 16 gallons on defendant’s premises, and a sale one month later to witness, could be required to elect which transaction it would rely on.
    3. Criminal law <&wkey;>I 169(11) — Reception of evidence of sale to witness one month after raid held harmless.
    Evidence of raid and seizure of intoxicating liquor on defendant’s premises having established prima fade case of possession of liquor for sale, and lowest penalty having • been assessed, court’s reception of evidence of sale to witness one month after raid, if erroneous, was harmless, in view of Acts 38th Leg. 2d Called Sess. (1923) c. 22, § B.
    4. Criminal law &wkey;>404(4) — Introduction of still, not found on defendant’s premises, among containers so found, held not erroneous.
    Where wooden keg, found on defendant’s premises' during raid, became leaky, and liquor was poured into a copper still', introduction for identification of still not claimed to have been found on premises among other containers so found was not erroneous.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    John Rodriguez was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    V. E. Middlebrook, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale.

On April 28, 1923, the officers, armed with proper warrants, searched appellant’s premises and found between 15 .and 16 gallons of whisky in various containers. .After making proof of the foregoing facts and showing the details of the transaction, the state then proved by one Woods that on May 28, 1923 (being a month subsequent to the raid), he purchased from appellant, at a point near his house, one quart of whisky, for which witness agreed to pay $3. The court instructed the jury that no conviction could be had on the Woods transaction, and that it could only be considered uppn the issue as to the purpose for which appellant possessed the liquor on April 28th. The reception of this evidence and the charge given relative thereto is made the basis of bills ;of exception 1, 2, 6, and 9. Under the record, before us, we do not feel called upon to discuss the question at length. The indictment was not returned until September, and the state could have relied upon either the facts disclosed at the time of the raid, or upon the Woods transaction, as supporting its charge that appellant was in the possession of liquor for the purpose of sale, and therefore the court was not in error in admitting the evidence as to the sale to Woods. Upon request by appellant, the state could have been required to elect upon which transaction it would rely, but the record reveals no such request; however, by the chargp the state was restricted to the April 28th transaction. If the court was in error in not withdrawing the Woods evidence, and in charging the purpose for which it might be considered, we would not be justified in reversing therefor, because the lowest penalty was assessed, demonstrating that the sale to Woods was not appropriated by the jury to appellant’s hurt; the other evidence having already established a prima facie case against him, which was in no way controverted. See Laws 2d C. S. 38th Leg. e. 22, § B.

There was no error in permitting the officer to bring before the jury for identification the whisky and containers found in appellant’s possession. Exception was taken, because among these was a copper still which was not found on appellant’s premises. The facts reveal that among other dontainers found was a 10-gallon wooden keg. It developed a leak, and the whisky was transferred from it to the still by the officers having custody of the property It was made plain to the jury that the state made no claim that the still was recovered in the raid, but that the whisky was found in the keg. We observe no error in this matter.

The other questions relate to jurors, and to argument of the district attorney. All have been examined, and, in our opinion, they present no error.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

We have re-examined the record in the light of the appellant’s motion for rehearing, and are constrained to express the opinion that the former disposition of 'the case is correct.

The motion is overruled. 
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