
    GRAHAM v. STATE.
    (No. 8041.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied Oct. 7, 1925.)
    1. Criminal law <&wkey;372(2) — Testimony as to other offenses held admissible.
    Testimony that defendant stated that he was making and selling whisky, and that witnesses saw him making whisky in his residence, on other occasions than that charged, 'held admissible to show that he was 'engaged in selling whisky unlawfully.
    2. Witnesses &wkey;>389(2) — Testimony, as to dei-fendant’s. statements denied by him on stand, held admissible.
    In trial for selling intoxicating liquors, testimony as to defendant’s statements, denied by him on stand, that utensil found on place where he resided belonged to him, that he was standing in with constable, who would not interfere with him, and that if they fooled with him he would sell whisky to the judge, held admissible.
    3. Witnesses <&wkey;337(6) — Defendant’s testimony, as to other charges, against him, held admissible as affecting his credibility.
    Defendant’s testimony that he had been charged with theft of cotton, but case had been dismissed, that charges of selling whisky were pending against him in court, and that eases against him in federal court had been dismissed, held admissible in trial for selling intoxicating liquors as affecting his credibility.
    4. Criminal law <&wkey;448(5) — Testimony of defendant’s father, that he would have known if whisky was made on defendant’s premises, held properly excluded as opinion and conclusion.
    In trial for selling intoxicating liquor, testimony of defendant’s father, that he would have known if any whisky was made on premises where defendant lived, held properly excluded as opinion and conclusion, witness being competent to testify only to what he saw.
    On Motion for Rehearing.
    5. Criminal law <&wkey;369 (6) — Testimony that defendant made whisky reasonably near time of sale charged held admissible to. rebut theory that he sold it as buyer’s agent.
    In trial for selling intoxicating liquor, which defendant claimed to have sold as buyer’s agent, proof that he made whisky in reasonable proximity to time he sold quart to buyer, held admissible, especially in connection with statements by him that he, and one from whom he claimed to have bought whisky for buyer, borrowed from each other when out of whisky for customers, and that he would sell whisky to anybody.
    6. Criminal law &wkey;>1170(4) — Exclusion of testimony held not reversible error in view of similar testimony by witness.
    In trial for selling intoxicating liquor, exclusion of witness’ testimony that he saw nothing to indicate manufacture of whisky along stream "near defendant’s house, held not reversible error, where witness testified that he never saw any fires, cooking, or anything else that looked like defendant had been making anything along such stream, and never saw a still or smelled any whisky.
    cgcsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Jake Graham was convicted of selling intoxicating liquors, and he appeals.
    Affirmed.
    Morrow & Stollenwerck, of Hillsboro, 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 1-Iill county at the June term, 1923, for selling intoxicating liquors, and his punishment assessed at one year’s confinement in the penitentiary.

There are many bills of exceptions complaining of the action of the court in admitting testimony showing that the appellant stated that he was making whisky and selling whisky and to the effect that the witnesses saw the defendant making whisky in his residence, attorneys for appellant urging that all of said transactions were separate and distinct transactions from the one under investigation and prejudicial to the rights of the defendant. We are of the opinion that this character of testimony was clearly admissible under the theory of the state that the defendánt was engaged in selling whisky unlawfully, and was admissible for said purpose. King v. State, 93 Tex. Cr. R. 341, 247 S. W. 858; Reub v. State, 93 Tex. Cr. R. 345, 247 S. W. 867.

There is also complaint urged to the action of the court in permitting the state to ask the defendant, while upon the stand, if he did not admit and tell the state witnesses that the can or utensil found down on the branch on the place where he was living belonged to him, and to ask said defendant, over his objection, if he did not tell certain witnesses for the state that he would sell whisky on the streets of Milford, and in effect that he was standing in with the constable there and he would not interfere with him, and to the further effect, that when the state’s witnesses admonished him that if he did not stop making whisky he was going to be taken up, or words to that effect, he replied in effect, “To hell with the law,” and if they fooled with him he would sell it to the judge — all of which statements the defendant denied, and which the state’s witnesses testified to the defendant’s having made. We are of the opinion that this testimony, as shown by the record, was admissible.

There, is also complaint of the state’s attorney asking the defendant, while he was upon tie stand, if he was not charged with whisky cases then pending in the district court where he was being tried, and if he did not have cases pending in the federal court, and if he had not been charged with stealing cotton; to which the appellant admitted that he had been charged with theft of cotton, but the case had been dismissed, and that there were cases pending in the court against him charging him with the sales of whisky and the cases in the federal court had been dismissed. We think this testimony was admissible as affecting the credibility of the witness.

There is also complaint urged to the court’s refusal to permit the father of the defendant to testify that he owned the farm that the branch ran through and the premises where the defendant lived, and had been up and down the branch many times, and if there had been any whisky made there he would have known it. This evidence was intended evidently by the defendant to rebut the testimony of the state’s witnesses who testified to having found utensils and cans on the branch and material evidently used for the purpose of making whisky, and that the defendant had admitted to them that they belonged to him. We see no error in_ the exclusion of this testimony, for the reason that it called for an opinion and conclusion of the witness. The witness could not have testified to his opinions and conclusions about the matter, but could have testified only to what he saw in passing up and down the branch in question.

There is also complaint urged to the admission of testimony as to other alleged offenses inquired about by the state and alleged to have been committed by the defendant with reference to having whisky and selling whisky, upon the ground that the evidence showed that the defendant bought the whisky ..from one Hampton for the prosecuting witness Daniels, and was in fact the agent of Daniels. This, of course, was the theory of the defense. Upon the other hand, the state’s theory was that the defendant was acting for himself, and the testimony adduced by the state was admissible to sustain this theory of the case.

There is also criticism made by the defendant of the charge of the court, but, after a careful investigation of the charge, we find that the learned judge submitted to the jury all the issues raised by the testimony in the ease, and, after a careful investigation of the entire record, we are of the opinion that the defendant has had a fair and impartial trial, and the judgment of the trial court should be affirmed, and it is accordingly so ordered.

On Motion for Rehearing.

LATTIMORE, J.

Appellant’s theory was that his only connection with the whis-ky sold by him to one Daniels, was as agent of the latter. Any facts legitimately combating this theory wdre admissible, and proof that appellant made whisky in reasonable proximity to the time he sold a quart of it to Daniels, would be held admissible, and especially so in connection with statements made by appellant in substance that he .and one Hampton borrowed from each other when customers came and found either one out of whisky; - and also appellant’s statement that he would sell whisky to anybody.

If the court at any time held that appellant could not prove the matters s'fet out in the bill of exceptions appearing on page 45 of the transcript, he evidently repented of this action, for in another part of the testimony of appellant said witness was allowed to testify fully to the facts claimed in said bill to have been rejected by the court at an earlier stage of the trial. The complaint was that the witness was not allowed to testify that he was on a branch near appellant’s house and saw nothing to indicate the manufacture of whisky there. The witness did testify that he was frequently up and down said branch near appellant’s house and never saw any fires or cooking, or anything else that looked like he had been making anything on the branch, and never saw a still or smelled any whisky or choc.

The state’s testimony showed overwhelmingly the guilt of appellant. His wife, father, brother-in-law, and wife of said brother-in-law testified in favor of appellant. The jury are charged with the duty of deciding the conflicting facts. They gave the accused the lowest penalty, and we see no reason to disturb their verdict, and believe the case correctly decided.

The motion for rehearing will be overruled.  