
    CRAWFORD v. STATE.
    (No. 7870.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1924.
    On Motion for Rehearing March 12,1924.)
    1. Jury <@=w66(2) — Court not required to draw jury from the box.
    The court did not err in declining defendant’s request in a liquor prosecution to personally draw the jury from the box and directing the clerk, in accordance with Code Cr. Proc. 1911, arts. 702, 703, to draw the jury in open court, which was done with the assistance of the court reporter, the clerk drawing the names from the box and the reporter, under the direction of the judge, writing the names as drawn.
    2. Jury <s=>66(2)— No law requiring judge to perform manual act of drawing jury.
    There is no law requiring a presiding judge to perform the manual act of drawing the jury.
    3. Criminal law <S=»726 — Conduct of prosecuting attorney in exhibiting paper, but which wai not read to jury, held not prejudicial.
    In a liquor prosecution, the conduct of tht prosecuting attorney, replying to an argument made by defendant’s attorney as to the evidence of some witness, in exhibiting a paper stating that he had asked the stenographer to transcribe the witness’ testimony, and that he would read it to the jury, was not prejudicial, where on objection the paper was not read to the jury and was laid aside.
    
      4. Criminal law <§=>1091 (8)— Bill of exceptions not giving name of witness nor substance cf evidence over which controversy arose held defective.
    A bill of exceptions, relating to a controversy between attorneys in a liquor prosecution as to what evidence some witness bad given before the jury, was defective, where the name of the witness was not given nor the substance of the evidence over which the controversy arose stated.
    5. Criminal law <§=>829(1) — Refusal of requested charge covered by main charge not error.
    The refusal of a requested charge covered by the main charge of a court does not constitute error.
    6. Intoxicating liquors <§=>236(11) — Evidence held to sustain conviction.
    Evidence held to sustain a conviction for selling intoxicating liquor.
    On Motion for Rehearing.
    7. Criminal law <§=>730(14) — Remarks of district attorney held not erroneous.
    In a liquor prosecution that the district attorney in his argument stated to the jury, “Ton will never get any negroes in the penitentiary if you turn this negro loose,” was insufficient to warrant a reversal, where the court promptly instructed the jury to disregard the argument.
    Appeal from District Court, Taylor County ; W. R. Ely, Judge.
    John Crawford was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    Kirby, King & Overshiner, of Abilene, and W. E. Martin, of Stanton, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

The offense is the sale of intoxicating liquor. Punishment two years in the penitentiary.

Appellant requested the trial judge in person to draw the jury from the box. This the judge declined to do,' but directed the clerk to draw the jury in open court, which was done with the assistance of the court reporter, the clerk drawing the names from the box and the reporter, under the direction of the judge, writing the names as drawn. We know of no law requiring the presiding judge to perform the manual act of drawing the jury. The Bell Case, 92 Tex. Cr. R. 342, 243 S. W. 1095, cited by appellant, does not support this proposition. The court’s action was in accord with articles 702, 703, Code Criminal Procedure.

In bills of exception 3 and 4 complaint is made of conduct and argument of the district attorney. As qualified by the court bill No. 3 presents no error. When the argument was objected to, the court then told the jury not to consider it. No written charge relative to the incident was requested. We do not regard the language complained of as so obviously harmful as that the action of the court did not remedy any supposed hurt. Bill No. 4 recites that, while the district attorney was replying to an argument made by appellant’s attorney as to the evidence of some witness, the district áttorney exhibited a paper, stating that he had asked the stenographer to transcribe the witness’ testimony, and that he would read it to the jury. Various objections were urged to this procedure. The bill is defective, we think, in that the name of the witness is not given; neither is the substance of the evidence over which the controversy arose stated. So far as we know, it may have related to an immaterial and trivial matter. The paper was not read to the jury; the court stating in his explanation to the bill that when counsel objected the district attorney laid it asde. Dunn v. State, 85 Tex. Cr. R. 299, 212 S. W. 511, does not furnish a precedent that the matter here urged was erroneous. In that case the conduct of the attorney was such as to get before the jury injurious matters not in evidence ; here simply a controversy arose between the attorneys as to what evidence some witness had given before the jury.

Bill of exceptions No. 5, as qualified by the learned trial judge, presents no error and will not be discussed.

The court properly refused appellant’s requested charge No. 2 to the effect that before conviction could result the jury must believe from the evidence b'eyond a reasonable doubt that the substance sold by appellant was capable of producing intoxication. This exact issue was coveréd by the fourth paragraph of the main charge.

The precise charge upon which conviction rests was that appellant sold to Carlton Wooldridge “one pint of spirituous liquors capable of producing intoxication.” It is contended that if any spirituous liquor was sold it was “whisky,” and that the evidence is insufficient to show that the liquor sold was that character of intoxicant. On direct examination Carlton Wooldridge testified:

“I asked him (appellant) if he had anything to drink. He said, ‘No,’ he did no't have anything with him, but he could get me something in about 15 minutes. I told Mm to get it, and he left the store. He afterwards returned. When he came back he brought the whisky with him. He brought a pint of whisky, and I gave him $3 for it. I delivered the money to him, and he delivered the whisky to me. I drank part of it, and gave my Dad a drink, and what was left I threw it away. That occurred in the state of Texas and county of Taylor. That is where I gave him the money for the whisky, and he delivered the whisky to me.”

On cross-examination he testified:

“I never drank over about one-half pint of ■ whisky in my life. I never drank any before I drank this, unless it was for medicine. * ⅜ * I knew there was whisky in the medicine only because somebody told me there was. * * * Of my own knowledge I cannot say that I ever drank any whisky before. * * * That whisky was white. That whisky was in coca cola bottles. I might have testified before that it was in soda pop bottles. It is a fact that it was in soda pop bottles. It was in two bottles. ⅜ ⅜ * I asked him for a drink. I asked him for something to drink. I did not ask him for whisky. He did not tell me what it was. He did not toll me it was whisky. * * * I took the bottles home with me. I took both bottles that I got from this negro. * * * I drank some of it after I got home. After I gave my Daddy a drink I threw the rest of it away. I gave my Daddy a drink the next morning.”

Ab Wooldridge testified on direct examination:

“My son gave me a drink of something out of a bottle on Christmas morning of 1921.' I tasted it. I pronounced it whisky. I have drunk whisky. I never have drunk very much whisky. In my opinion that was whisky.”

On cross-examination this witness testified:

“What he gave me was about an inch or two in a soda pop bottle. That was a yellow fluid. It was yellow. I have drunk whisky before. I do not know whether I ever drunk any of that kind of whisky before or not. I do not know what kind it was. I am not in the habit of .drinking bad whisky. This is the first I ever tasted that I know of. I just took a teaspoonful of it. I do not know whether it was intoxicating or not. It never intoxicated me. I never felt any effect from it. As to it being a fact that it might have been whisky, or it might not have been, as far as I absolutely know I pronounce it whisky. In my opinion it was whisky. Of course it might not have been whisky. I never saw any just like it before. I never did pay any attention to it. * * .* I merely state to this jury on that state of facts in my opinion it was whisky. That is all.”

We are of opinion the foregoing facts support the verdict. We do not regard as particularly significant the fact that one of the ■witnesses referred to the liquor as being “white” and another said it was “yellow.” The evidence appears to leave no doubt that they were talking about the same liquor, or that the boy gave his father a drink from one of the soda pop bottles purchased from appellant.

We do not believe the evidence raised an issue calling for the submission of appellant’s requested charge to the effect that, if the jury entertained a reasonable doubt as to whether the liquor sold was whisky, they should acquit The state’s testimony on that issue is set out, and appellant offered none.

We have considered al) the propositions urged by 'appellant in his brief, and believe none present error calling for a reversal.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The district attorney in his argument said to the jury:

“You will never get any negroes in the penitentiary if you turn this negro loose.”

The court instructed the jury to disregard the argument. Considering the record, the nature of the argument, while not approved by this court, was not such as warrants a reversal of the judgment, in view of .the prompt action of the trial court -in instructing the jury to disregard it.

The motion is overruled. 
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