
    PERRYMAN v. STATE.
    (No. 3406.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.
    Rehearing Denied March 3, 1915.)
    1. Intoxicating Liquors <&wkey;-222 — Negativing Exceptions.
    An indictment charging that defendant did unlawfully bring, transport, and carry into the county intoxicating liquors for one E., and did then and there deliver intoxicating liquors to E., and did receive for transportation, carriage, and delivery to E., in said county, intoxicating liquors, said liquors being received by defendant in D. county, Tex., from person or persons unknown, was sufficient under Act Aug. 21, 1013 (Acts 33d Leg. First Called Sess. e. 31), for section 12 provides that it shall not be necessary to negative exceptions contained in the act, but that they shall be available as purely defensive matter.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 240-248; Dec. Dig. <&wkey;> 222.]
    2. Criminal Law &wkey;>365, 372 — Evidence of Other Offenses — Res Gestas.
    In a prosecution for carrying liquor into prohibition territory and delivering it there to a person named, evidence that other persons had given defendant money to get liquor for them, which liquor was delivered at the same time as was that for the person named in the indictment, was properly admitted as part of the res gestae and as showing system.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 807', S33¡ 834; Dec. Dig. <&wkey;365, 372; Intoxicating Liquors, Cent. Dig. § 286.]
    3. Witnesses <&wkey;255 — Examination — 'Refreshing Memory.
    It was not error to permit the prosecuting attorney, in examining a witness, to read to him, in the presence of the jury, his testimony given on the examining trial, for the purpose only of refreshing his memory; the witness being reluctant, and the court, both orally and by written charge, instructing the jury not to consider the testimony read for any other purpose.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. &wkey;255.]
    Davidson, J., dissenting.
    Appeal from District Court, Titus County; H. F. O’Neal, Judge.
    Homer Perryman was convicted of carrying intoxicating liquor into prohibition territory, and appeals.
    Affirmed.
    T. C. Hutchings and Rolston & Rolston, all of Mt. Pleasant, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The indictment in this case avers that the law prohibiting the sale of intoxicating liquors had beou put in full effect in Titus county in 1913, and that on or about May 30, 1914, in said county, appellant “did then and there unlawfully bring, transport, and carry, into said county, intoxicating liquors for one Ed Ervin, and did then and there deliver intoxicating liquors to said Ed Ervin, and did receive for transportation, carriage, and delivery to Ed Ervin, in said county, intoxicating liquors; said liquors being received by said I-Iomer Perryman, in Dallas county, Tex., from some person or persons, who are to the grand jurors unknown.” This indictment was preferred under Act Aug. 21, 1913, p. 62, of the First Called Session of the Thirty-Third Legislature.

The appellant made a motion to quash the indictment “because it charges no offense against the laws of this state.” The indictment is clearly sufficient under the provisions of said act. While it is true the act specifies many things as exceptions which would not be unlawful in bringing, transporting, carrying, and delivering intoxicating liquors into prohibition territory, by section 12 it is specifically provided that it shall not be necessary, in any prosecution under said act, to negative the exceptions, but such exceptions shall be available to the defendant as purely defensive matters. Johnson v. State, 171 S. W. 211.

The evidence is amply sufficient to sustain the conviction. It shows, in effect, that said Ed Ervin was a minor 16 years of age; that he and several other persons gave appellant money to go to Dallas, get intoxicating liquors, bring it from there back into Titus county, and deliver it to them; that ho did go to Dallas county, procured the liquor, carried it back into Titus county, and at the same time and place delivered part of it to said Ervin and other parts of it to the said several other persons. He himself testified that these several persons gave to him money to go to Dallas and get them intoxicating liquors, and that he did do so, and carried it back into Titus county; that, after he got back into Titus county with the liquor, he got with a companion, and they drank part of it themselves, and that he got drunk, and that, if he delivered any of the whisky to them, he did not know it, because he was drunk; that he made no profit out of the whisky, and what he did was an accommodation for said parties; that they paid his expenses, railroad fare, and hotel bills, in addition to giving him the money with which to buy the liquor.

By one bill it is shown that the court permitted over his objections, Birt Binnion to testify that on or about May 30, 1914, he gave appellant $3 in money to go to Dallas and get him some whisky; and by another that the court permitted Geo. Tosh to testify that on the same date he gave appellant $10 for the same purpose; and by another that he required appellant to testify that Fon Dee, said Binnion, and Tosh gave him money to go to Dallas and bring back whisky into said county for them. In each of said first two bills the court explained that he permitted this testimony because the liquor was carried into Titus county at the same time, delivered at the same time and place, and was part of the res gestfe, and showed system. And to the latter he made the same explanation, and in addition that said whisky was brought into the county for all of said parties at the same time as for said Ervin, and was delivered at the same time and place, and was part of the res gesta:, and showed system; and that the said Ervin at the time was a minor, only 16 years of age, and that the bringing of said whisky into Titus county was for a minor and for an unlawful purpose. As explained and qualified by the judge, which was accepted by appellant, no error in the admission of said testimony is shown. Hardgraves v. State, 61 Tex. Cr. R. 327, 135 S. W. 132, and cases cited; Ware v. State, 36 Tex. Cr. R. 597, 38 S. W. 198; Kelley v. State, 31 Tex. Cr. R. 216, 20 S. W. 357; Kaufman v. State, 159 S. W. 60; Dugat v. State, 160 S. W. 377, and cases cited therein.

By another bill it is complained that the court, over his objections, permitted the testimony of said Ed Ervin on the examining trial to be read to him in the presence of the jury. The court, in approving the bill, qualified it by stating that said Ervin was a- very unwilling witness, and that it was with very great- difficulty tiiat tlie district attorney could get Mm to testify; that lie permitted the district attorney to read over his said testimony on examining trial for the purpose only of refreshing his memory, which seemed to be a blank; and that he instructed the jury at the time, orally, and also in his written charge, not to consider his testimony at the examining trial read over to Mm, for any purpose, as it was only permitted to refresh the memory of the witness. As qualified, this bill shows no error. The lowest penalty prescribed by law was assessed against appellant.

No reversible error being shown, the judgment will be affirmed.

HARPER, J.

As the evidence does not disclose that the whisky was intended for the personal use of the persons receiving same, and this being an affirmative defense, and the amount of money contributed for the purchase of liquor strongly tending to exclude that such was the case, I agree to the affirmance.

DAVTDSON, J.

I dissent. Longmire v. State, 171 S. W. 1165, and Ex parte Hopkins, 171 S. W. 1163, recently decided. These cases are in direct conflict with this opinion. 
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