
    HESTER v. STATE.
    (No. 7676.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.
    Rehearing Granted June 4, 1924.)
    1. Criminal law <&wkey;>l 169(1) — Testimony of county attorney that he asked a sheriff and a constable to accompany him to accused’s house not prejudicial.
    In a prosecution for possession of intoxicating liquor, testimony of a county attorney (that he asked a sheriff and a constable to go with him to the accused’s house held not prejudicial.
    2. Criminal law &wkey;>! 169(1) — Testimony of noninjurious statements out of accused’s presence not reversible error.
    In a prosecution for possession of liquor for sale', testimony of a sheriff that he was asked to come to the town where the accused j dwelt, and that he went there and accompanied the prosecuting attorney to the accused’s house, although it might well have been omitted as hearsay, was not prejudicial. |
    On Motion for Reheaying.
    3. Intoxicating liquors <&wkey;236(7) — Mere possession not sufficient to show intent to sel!.
    In a prosecution for possession of liquor for purpose of sale, where evidence showed that the accused was arrested with liquor in his possession, but that he neither sold, offered to sell, or discussed its sale, a conviction was improper.
    ■ Appeal from District Court, Kent County; W. R. Chapman, Judge.
    Jack Hester was convicted of possession of intoxicating liquor for purpose of sale, and he appeals.
    Reversed and remanded.
    Stinson, Coombes & Brooks, of Abilene, and J. E. Robinson, of Anson, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kent county of possessing intoxicating liquor for purpose of sale, and his punishment fixed at one year in the penitentiary.

The evidence shows appellant in possession of a number of bottles of whisky. The jury were justified in concluding that he had same in violation of law.

There are three hills of exception in the record, the first of which complains of the refusal of a peremptory instruction in. favor of the accused; the second complains of testimony of the county attorney of Kent county to the effect that he requested the sheriff and the constable to go with him down to the house where appellant' was found in possession of the liquor. The complaint is of a matter that has no possible injurious effect upon appellant’s case. The men went together down to said house, and; the fact that the county attorney asked them to go could operate to produce no injury. Appellant’s remaining bill of exceptions complains of the testimony of the sheriff in saying that he was called by the county attorney in March to come over to Jay ton on a certain Saturday night, and when that time arrived he was there and accompanied the county attorney down to said house. The complaint evidenced by the two latter bills of exception seems based on the proposition that what was said and done was out of the presence and hearing of the appellant, and he was not bound thereby. Granted. Illustrations without number might be multiplied of things that are done out of the presence and hearing of the appellant which are admissible. Things that are said under such conditions would appear to be hearsay, and might well be omitted on the trial, but where they are of matters from which no reasonable mind could conclude any possible injury, this court will not reverse.

An affirmance is ordered.

On Motion for Rehearing.

In the light of appellant’s motion for rehearing we have carefully scrutinized the facts, and are constrained to agree with appellant that they do not support the conclusion of guilt. It is shown without dispute that on the occasion in question appellant, in .company with another man, went down to the home of a negro, and that the men parted just before they got to tbe bouse, appellant going out to tbe barn. Presently be came back into tbe room with four pint bottles of wbisky. In a few minutes officers came in and confiscated tbe liquor. There is no suggestion as to tbe purpose for wbicb appellant bad it. He neither sold nor offered to sell nor discussed tbe sale of it, and tbe evidence tends as strongly to support tbe proposition 'that be bad just bought it for some purpose not disclosed, or that be bad it for bis own úse, as any other. No other transaction of the appellant in connection with any liquor is made to appear in the record, and upon more mature consideration we are convinced that we erred in affirming tbe judgment.

Appellant’s motion for rehearing is granted, tbe affirmance set aside, and tbe judgment is now reversed, and tbe cause remanded. 
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