
    Dick Akey v. State.
    No. 25593.
    December 19, 1951.
    Rehearing Denied February 13, 1952.
    Hon. Penn J. Jackson, Judge Presiding.
    
      Gean B. Turner, Cleburne, for appellant.
    
      
      George P. Blackburn, State’s Attorney, Austin, for the state.
   DAVIDSON, Judge.

The conviction is for the unlawful sale of whisky in a dry area, with a count in the information charging a prior conviction for an offense of like character. The punishment was assessed at a fine of $800.

Fessler, an agent of the Texas Liquor Control Board, acting as an undercover man and named in the information as the purchaser of the whisky, testified that on the 23rd day of May, 1951, at the appellant’s home, he purchased from appellant two pints of whisky, for which he paid the sum of $8.00.

It was the province of the jury to convict upon the unsupported testimony of this witness. The facts warrant the jury’s conclusion of guilt.

The construction which appellant would have us apply to his bill of exception is that the state introduced in evidence testimony showing that on the day following the offense here charged he made another sale of whisky.

In the first instance, the bill of exception fails to reflect the name of the witness by which this testimony was given. Moreover, the trial judge sustained appellant’s objection and instructed the jury not to consider such testimony.

We are unable to reach the conclusion that reversible error is reflected notwithstanding such withdrawal.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING.

WOODLEY, Judge.

Our attention is again directed to appellant’s bill of exception wherein he complains of the overruling of his motion for mistrial.

This bill reveals that an unnamed witness testified that he returned the next day and again “made a purchase from Dick Akey.” The witness did not testify what he purchased.

The jury having been instructed to disregard the testimony, the trial court properly declined to declare a mistrial.

Appellant’s motion for rehearing is overruled.

Opinion approved by the court.  