
    PHILLIPS v. STATE.
    (No. 7207.)
    (Court of Criminal Appeals of Texas.
    April 25, 1923.)
    Rehearing Denied May 30, 1923.)
    1. Intoxicating liquors <@=>216 — Indictment held not faulty as failing to aver that liquor contained more than ly per cent, of alcohol.
    An indictment for the unlawful sale of intoxicating liquor brought under Vernon’s Ann. Pen. Code Supp. 1922, art. 588%, 'held not faulty in failing to contain an averment that the liquor sold contained more than 1 per cent, of alcohol.
    2. Criminal law <@=>l 159(5) — Finding of jury as to whether liquor is sold or given away held binding on appeal.
    Where, in a prosecution, under Vernon’s Ann. Pen. Code Supp. 1922, art. 58S%, for the unlawful sale of intoxicating liquors, defendant claimed that while he delivered the whisky it was a gift and not a sale, the finding of the jury upon such questions of fact was binding upon the Court of Criminal Appeals.
    3. Criminal law <9=3650 — Permitting qualified witness to taste liquor while on stand held not error.
    Where, in a prosecution for the unlawful sale of intoxicating liquor, under Vernon’s Ann. Pen. Code Supp. 1922, art. 588%, a witness has given testimony qualifying him to determine the character of the liquor by tasting it, it is not error to allow such witness to taste the liquor while upon the stand.
    4. Intoxicating liquors <@=>226 — Evidence as to finding of apparatus for manufacturing liquor on premises of third person held admissible.
    In a prosecution for the unlawful sale of intoxicating liquor, admission of evidence that part of a still, a corker, and labels, similar to that upon the bottle claimed to have befen sold by defendant, were found on the premises of a third person, held, not error.
    5. Criminal law <@=>l 111 (3) — Defendant by accepting bill of exceptions with qualifications held bound thereby.
    Where, in a criminal prosecution, a bill complaining of the court’s failure to instruct the_jury -to disregard certain conversation with defendant while under arrest was qualified by a statement that at the time the declarations were made defendant was not under arrest, defendant by accepting the bill in such condition made it binding upon him.
    On Motion for Rehearing.
    6.Criminal law <@=>l038(1) — Misstatement in Instruction as to section of law on which proseoution brought not reviewable in absence of objection.
    In a prosecution for the unlawful sale of intoxicating liquors brought under Vernon’s Ann. Pen. Code Supp. 1922, art. 588%, a charge that the prosecution was founded upon article 588%a, making unlawful the sale of spirituous liquor containing more than 1 per cent.-of alcohol by volume, was not reviewable, in the absence of objection, being abstract, and the other paragraphs of the charge definitely and properly informing the jury upon what facts the conviction might be predicated.
    Appeal from District Court, Shelby County ; Chas. L. Brachfield, Judge.
    Tom Phillips was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    E. J. McLeroy, of Timpson, for appellant.
    R. G. Storey, Asst Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The indictment follows the' law embraced in section 1 of chapter 61, Acts of the 37th Leg., 1st Called Session. See Vernon’s Tex. Crim. Stat. vol. 2, Supp. 1922 (Penal Code) art. 588%. In section 2 of that act, another offense is defined, namely, the unlawful sale of spirituous liquor containing an excess of 1 per cent, of alcohol by volume. See article 588%a. The prosecution, being founded under article 588%, was not faulty in failing to contain an averment that the liquor in question contained more than 1 per cent, of alcohol. See Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 913.

The purchaser named in the indictment testified that he bought the whisky from the ■appellant. The appellant admitted that he delivered the whisky to the witness, hut claimed that it was a gift and not a sale. The solution of the issue of fact by the jury is binding upon this court.

Objection was urged that the bottle of fluid introduced was not identified as that coming from the appellant. This is controverted by the qualification of the bill, and we think also by the statement of facts. Hooker, the purchaser, testified that he bought a bottle of liquor- from the appellant and delivered it to the witness Booth. Booth testified that he instigated and observed the purchase and received the liquor, and that in his presence his wife placed a label upon it. He identified the bottle from his own memory and knowledge of it as well as from the label, and produced it in court. Upon his identification it was admitted in evidence. While on th# stand he tasted the liquid. The complaint of this is not well founded. The witness gave testimony _ qualifying' him to determine the character of the liquor by tasting it. See Joyce on Intoxicating liquor, § 521; Oyc. of Law & Proc. vol. 23, p. 266.

The complaint in the bill about the facial expressions of the witness is not approved by the trial judge.

Appellant', in his testimony, claimed that he had bought the liquor and that it cost him more than the state’s witness claimed to have paid for it. There was also testimony that' the cork in the bottle was put in by a machine. Appellant testified that there was no machine for putting corks in the bottles upon his premises. He also testified that a corking machine had been seen by him at the home of another person in the neighborhood; also, that there was no still upon his premises. In rebuttal, the state introduced testimony that on the night' of the arrest a still was found; also a corker and other equipment for manufacturing liquor; also, conversations with the appellant and testimony to the effect that the still had been moved from his house to that of Mrs. Bryan.

The bill complaining that at Mrs. Bryan’s place was found part of a still, a corker, and labels similar to that upon the bottle in Which the liquor was obtained by the purchaser from the appellant, is without merit.

There is a bill complaining of the failure of the court to instruct the jury to disregard certain conversations with the appellant while he was under arrest. The qualification of the bill states in terms that at the time the declarations were made appellant was not under arrest. A bill accepted in this condition .is binding upon the appellant. There appears to have been no objection to the testimony at the time it was received.

The evidence is sufficient, and no error is discerned.

The judgment is therefore affirmed.

On Motion for Rehearing.

The indictment charged that the appellant sold spirituous, vinous, and intoxicating liquors and malt liquors capable of producing intoxication. This is, the languáge used in section 1 of chapter 61, of the Acts of the 37th Leg., 1st Called Sess. (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%), mentioned in the original opinion.

In the fourth paragraph of the court’s charge, the jury is told that if they believe that the appellant sold to the purchaser named in the indictment, spirituous, vinous, and intoxicating liquors, or malt liquors capable of producing intoxication, they should find appellant guilty, or if they had a reasonable doubt thereof, they must acquit him.

The court, in the third paragraph of the charge, told the jury that the law upon which the prosecution was founded was that embraced in the terms of section 2 of the _ act (article 588%a) of the Legislature mentioned, in which the offense described is the sale of spirituous, vinous, or malt liquors containing an excess of 1 per cent, of alcohol by volume. Sections 1 and 2 of the act. denounce separate offenses. IfMs was held in Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 913, and other cases. The statement setting out the terms of the law under which the prosecution is founded is inaccurate. The prosecution was under section 1 of the act in question. No exception was reserved to the inaccuracy. It is merely an abstract statement. The other paragraphs of the charge definitely informed the jury upon what-facts a conviction might be predicated, and the facts so described coincide with those in section 1 of the chapter in question and also with the indictment'. The fault in the charge is not one demanding notice in the absence of objection.

The other matters mentioned in the motion for rehearing were properly disposed of and sufficiently discussed in the original hearing.

The motion for rehearing is overruled. 
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