
    DAVIDSON v. STATE.
    (No. 7702.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1923.
    Rehearing Denied Nov. 14, 1923.)
    1. Intoxicating liquors i&wkey;>23l — Evidence to show intoxication from drinking relevant on character of liquid drunk.
    Where, in a prosecution for unlawfully transporting liquor, it was shown accused and his companions had been drinking the contents of the bottle alleged to have been transported, evidence that they became intoxicated was relevant upon the character of the liquid in question.
    2. Criminal law <&wkey;780(I) — Refusal to give , charge on accomplice testimony held not error.
    In a prosecution for transporting liquors, in which the persons who participated with accused in transporting it were state witnesses, refusal to give charge on accomplice testimony ■held not error, in view of Acts 37th Leg. (1921) First Called Sess. c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588}4a3), providing that the purchaser, transporter, or possessor of intoxicating liquor shall not be held an accomplice.
    3. Criminal law &wkey;>l 122(1) — Bill of exception held not to show error in refusing to charge on suspended sentence.
    Bill of exceptions, assigning error for the refusal to charge on the law of suspended sentence, held not to disclose error where it did not show that accused was under 25 years of age, and had not previously been convicted of a felony.
    On Motion for Rehearing.
    4. Criminal law <&wkey;656 (2) — Court’s remark in permitting leading questions was not comment on weight of testimony.
    The rule that a trial judge should refrain from any statement from the bench relative to his view up.on the testimony held not to apply to trial court’s remark that the district attorney could lead a witness if he wished where the witness appeared hostile.
    (g^sFor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    W. A. Davidson was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Affirmed.
    Moyers & Creighton and Ritchie & Ran-spot, all of Mineral Wells, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquor; punishment, fixed at confinement in the penitentiary for a period of two years.

The evidence is conflicting. From that of the state, it is sufficient to show that appellant and three other persons — Berry, Purtle and Wyatt — went in appellant’s, automobile from Mineral Wells to the town of Thurber, about 40 miles distant, and while at Thurber they procured a quantity of intoxicating liquor, part of which they brought in appellant’s automobile to his home in Mineral Wells, and part of which they consumed en route. The exact quantity is not revealed, though it seems that the whisky was in a gallon bottle from which they drank on several occasions. There were also a number of bottles of beer, which, according to some of the state’s witnesses, was intoxicating. The carrying of the intoxicating liquor was denied by the appellant.

The verbiage of the indictment is like that held sufficient in the case of Tucker v. State (Tex. Cr. App.) 251 S. W. 1090. Appellant and his companions had been drinking of the contents of the bottle, and it was not incompetent to show that they became intoxicated. This was relevant upon the character of the liquid in question.

During the examination of thb witness Purtle, the trial judge told the district attorney that he might lead the witness. The bill of exceptions complaining of this is deemed without merit. There are many circumstances under which a witness may be properly asked leading questions. Armstead v. State, 22 Tex. App. 59, 2 S. W. 627, and other cases listed in Branch’s Ann. Tex. P. C. § 157. In order to justify a reversal because of leading questions, it is essential that the bill of exceptions affirmatively show that the circumstances were not such as rendered leading questions permissible, and also show facts from which prejudice to the case may be inferred. See Montgomery v. State, 4 Tex. App. 142, and other cases listed by Mr. Branch in his Ann. Tex. P. O. § 159. In the present case, we do not learn from the bill that the witness gave any testimony; nor does the bill reveal circumstances which led the court to give permission to lead the witness.

The state used the witnesses Purtle, Wyatt, and Berry. Berry drove the automobile which belonged to the appellant. Wyatt and Purtle were in the car, and took part in drinking and handling the liquor. According to the' undisputed testimony, ,if we properly comprehend it, the parties left Mineral Wells with the agreement and understanding that they would go to Thurber after intoxicating liquor, and that, pursuant to this agreement, they did go there, obtained the liquor, and returned with it in their joint possession.

Appellant complains of the court’s failure to charge on accomplice testimony. There was no error in refusing to give the instruction for the reason that, in this character of prosecutions, the statute provides that the purchaser, transporter, or possessor of intoxicating liquor shall not be held an accomplice. See Acts 37th Beg. 1st called Sess. c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3).

In the bill complaining of the refusal of the' court to charge on the law of suspended sentence, it is not shown that appellant was under 25 years of age, and that he had not previously been convicted of a felony. The bill therefore discloses no error. See Holdman v. State (Tex. Cr. App.) 251 S. W. 218.

The record revealing no error, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

It is insisted that the question discussed in paragraph 5 of our opinion resulted from a misapprehension of bill of exception No. 5; that the complaint was not because leading questions were permitted, but was directed at the statement of the court relative to it. We have re-examined this bill, and find appellant’s contention to be correct.

While a witness was being examinéd by the state he was asked relative to some statement theretofore made by him before the grand jury. During this examination the learned trial judge told the district attorney he could lead the witness if he wished to do so, and qualifies the bill by stating that the “witness appeared very hostile to the state, and answered evasively and with much uncertainty.” The complaint is made that when the court gave the district attorney permission to lead the witness, he commented on the weight of the testimony We can see no basis for such construction of his language. The qualification attached to the bill would be binding on this court, but even without it the statement of facts reveals the attitude of the witness and justified the qualification. We recognize the rule that trial judges shguld refrain from any statement from the bench relative to his view upon the testimony, but we think it inapplicable to the language of the trial judge at which the present complaint is directed.

The motion for rehearing is overruled.  