
    LENZ v. STATE.
    (No. 10164.)
    (Court of Criminal Appeals of Texas.
    May 12, 1926.
    Rehearing Denied Feb. 2, 1927.)
    1. Intoxicating liquors <@=>2f6 — Indictment charging sale of intoxicating liquor held sufficient, though not charging liquor was spirituous, vinous, or malt (Pen. Code 1925, art. 666).
    Indictment charging sale of intoxicating liquor under Pen. Code 1925, art. 666, is sufficient, without charging that liquor sold was spirituous, vinous, or malt liquor, since that article also penalizes the sale of any other intoxicant. • •
    2. Witnesses <§=>344 (2) — State’s witness held not impeachable by showing he issued cheeks without funds, for which he was not legally accused.
    State’s witness, in liquor prosecution, cannot be impeached by showing he had issued checks on bank in which he had no funds, in absence of charge being reduced to legal accusation.
    3. Criminal law <@=>459 — State’s witness may give opinion as to taste and odor of liquor.
    In prosecution for sale of intoxicating liquor, state’s witness may give opinion as to odor and taste of liquor in question.
    On Motion for Rehearing.
    4. Criminal faw <@=>369(6) — State’s witness, may testify as to possession of liquor subsequent to alleged sale to prove sale.
    State’s witness, in prosecution for sale of intoxicants, may testify that he found liquor on premises of accused on day following alleged sale; such fact of possession bearing on offense charged, as well as impeaching accused.
    5. Criminal law <@=>673(5) — Failure to limit consideration of evidence to possession of liquor subsequent to sale held not error.
    Evidence as to finding liquor in possession of accused on day following alleged sale did not have to be limited to charge of unlawful sale, where such evidence could be used only to prove sale and not possession.
    Commissioners’ Decision.
    Appeal from District Court, Guadalupe County; Lester Holt, Judge.
    Louis Lenz was convicted of unlawful sale of intoxicating liquor, and be appeals.
    Affirmed.
    
      P. E. Campbell and Dibrell & Mosheim, all of Seguin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is the unlawful sale of intoxicating liquor, and the punishment is one year in the penitentiary.

The indictment charged that the defendant sold to one Paul Blair liquor capable of producing intoxication.. Appellant moved to quash the indictment, because it did not charge that the liquor sold was spirituous, vinous, or malt liquor. Article 666 of the Penal Code, on which this' prosecution was based, not only penalizes the sale of spirituous, vinous, or malt liquors, but also of any other intoxicant whatever. Under the plain terms of the statute itself this indictment was entirely sufficient. Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090.

By a bill of exceptions appellant objects to the couft’s charge because he did not limit the testimony to the effect that there was found in an outhouse on defendant’s premises a glass jar containing com whisky on the day following the sale. It is appellant’s contention that the court should have told the jury that this testimony was offered for the purpose of throwing light on the alleged sale charged. The record discloses that before this testimony was introduced the appellant took the stand, and, after testifying that he made no sale to Paul Blair, he also testified that he had no whisky in his house on the night of the alleged sale. It was as a circumstance rebutting this testimony of the appellant that the court permitted proof that whisky was found on his pi-emises the next day. Appellant himself testified that the of-, ficers found a large quantity of beer at his house the next day after the night of the alleged sale, and his wife gave testimony to the same effect. Art. 658, C. C. P., provides that the defendant or his counsel shall have a reasonable time to examine the charge before it is read, and that he shall present his objections thereto in writing distinctly specifying each ground of objection.

We think the objection to the court’s charge as presented is without merit. The testimony as to the liquor found at appellant’s home the day after the alleged sale was not only admissible for the purpose of shedding light on the sale charged, but it was clearly admissible as tending to impeach the testimony of both the appellant and his wife to the effect that appellant had no whisky at his house at the time of the alleged sale.

Complaint is also made at the court’s action in refusing to permit the appellant to prove by the cashier of one of the local banks that one of the state’s witnesses had issued several checks to various persons upon his bank in sums ranging from $1.55 to $8.00, when said witness had no funds in said bank to pay said checks. It is appellant’s contention that this testimony-was admissible for the purpose of impeaching said witness. The rule. has been correctly stated that proof of particular acts of misconduct is not admissible to effect the credibility of a witness. Defendant or any other witness can only be impeached as to other offenses by showing that he has been legally charged with a felony or a misdemean- or imputing moral turpitude. McAfee v. State, 17 Tex. App. 139; Conway v. State, 33 Tex. Cr. R. 329, 26 S. W. 401; Phillips v. State, 73 Tex. Cr. R. 317, 164 S. W. 1007. There is no pretense or suggestion in this record that the charges against this witness had been reduced to a legal accusation. The court’s action in excluding the testimony was correct.

The court did not err in permitting the witness for the state to give his opinion as to the liquor in question, based upon its odor and the taste of the same. Hendley v. State, 94 Tex. Cr. R. 40, 250 S. W. 174.

Appellant complains at the court’s' action in permitting the witness Springs to testify that he was present when appellant’s premises were searched on the day following the alleged sale, and that about 30 or 40 bottles of beer, a 15-gallon jar of mash, and a 5-gallon jar, containing what looked like beer, and a gallon of whisky, were found. This testimony was clearly admissible as not only shedding light on the question under investigation, but as rebutting the testimony offered by the appellant and his wife.

Finding no error in the record the judgment is in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

From the record in this case we observe that the state introduced only Mr. Blair in making out its case in chief. He swore that on a certain night he went to appellant’s house, and bought from him a quart of whisky, for which he paid $3. Appellant then took the stand, and testified that he did not sell any whisky to Blair; that he had no whisky on his place either that night or the day following when the officers with a search warrant came and searched his place. Appellant’s wife also swore that he had no whis-ky on the place. In its rebuttal the state put on the stand Officer Springs, who swore that he accompanied Blair to a point near appellant’s house, at which place Blair left, but presently came back with a quart of whisky, which witness saw and tasted. He further swore, over objection, that the next day he went to appellant’s house with a search warrant, and found buried in the smokehouse a gallon bottle of whisky, which he tasted, and which, in his judgment; was the same kind and character of whisky as that had by Blair the night before; also that he found in his search 15 gallons of whisky mash.

Appellant stresses the objection he made to the introduction of the finding of the gallon of whisky by Mr. Springs the morning after the sale alleged to have been made to Blair the night before. The question is not a new one. In Brown v. State, 99 Tex. Or. R. 48S, 269 S. W. 1051, where the charge was illegal selling, we said:

“Evidence showing the possession of a quantity of whisky by accused shortly after the alleged sale was unquestionably material and tended to affect the direct issue under investigation. It is true accused was not charged with possessing the whisky for the purpose of selling it, but the effect of the evidence introduced by the state was to induce the jury to believe that he had it with such intent, and was actually carrying it out. The fact of possession was introduced by the state as a criminative circumstance against him.”

In Reub v. State, 93 Tex. Cr. E. 345, 247 S. W. 867, the accused being convicted of the offense of selling intoxicating liquor, we said:

“We have frequently held that testimony of the manufacture by the accused of intoxicating liquor is admissible and has probative force when the charge against him is the selling of intoxicants.”

The facts in that case showed that on a different occasion from that of the alleged sale the officers searched appellant’s place of business, and in a small building immediately in the rear of his bakery liquor was found in process of making. On a trial of one charged with the manufacture of liquor, proof of several sales, shortly before the finding of a still, was upheld in Newton v. State, 94 Tex. Cr. R. 386, 251 S. W. 250. Proof of finding the apparatus and material for making whisky on appellant’s premises was admitted upon his trial for selling in Dameron v. State, 97 Tex. Cr. R. 173, 260 S. W. 855. Nichols v. State, 97 Tex. Cr. R. 176, 260 S. W. 1051, quotes approvingly from Branch’s Annotated P. C. § 2347, as follows:

“Proof of other offenses is admissible * * * when it is sought to show the guilt of defendant by circumstantial evidence and such proof of other offense connects or tends to connect the defendant with the alleged offense for which he is being tried, or when it tends to defeat the defensive theory.”

Under all these authorities and facts herein we think the testimony of Mr. Springs was admissible.

Even though direct testimony is relied on to make out a case, the state has the right to support such testimony by proof of corroborative circumstances. This is especially true when the direct testimony supporting the state’s ease is combated by the defense.

It needs no argument to make plain the proposition that one cannot sell and deliver whisky who has no whisky. It needs no argument to make plain the further proposition that testimony of the purchase of any quantity of whisky, or of any other article for that matter, is strongly supported by proof that the alleged seller has in his possession, either at the time or reasonably near thereto, a quantity of whisky or of such other articles. Proof that appellant was in possession of the bottle of whisky the next day and of the material for making whisky was competent and admissible.

One on trial for an assault with a pistol, who took the stand and denied the assault, and denied having the pistol, could hardly complain of proof by the state in rebuttal of the fact that he did own a pistol, and had been seen with it the day before the alleged assault. Illustrations might be multiplied. We quote further from Nichols v. State, 97 Tex. Cr. R. 178, 260 S. W. 1052, opinion by Morrow, P. J.:

“Considering the appellant’s testimony denying that he manufactured the whisky and the various attacks made by him upon the credibility of the witness relied upon by the state and the other defensive evidence mentioned, was it not relevant and competent that the state show that near the time and place at which the offense was committed, the appellant, in connection with his son, one of the conceded actors in the commission of the offense, was in possession of articles such as the still produced and engaged in selling it and conveying it to the purchaser? We think this question should be answered in the affirmative, and that such answer is consistent with the rule quoted from Mr. Branch announcing the prevailing exceptions in this state and in harmony with many of the cases to which reference has been made in this opinion.”

The authorities cited by appellant in his motion have been reviewed, but each is distinguishable. Eor instance, Stewart v. State, 100 Tex. Cr. R. 566, 272 S. W. 202, is cited. The defense in that ease was alibi. The state was allowed to prove the finding near appellant’s premises of a still and five gallons of whisky some days after the alleged sale. This court held that such proof shed no light on the issue as to whether the accused was at home on the day of the alleged sale. Substantially the same appears in Graeb v. State, 104. Tex. Cr. R. 293, 283 S. W. 819, which is cited. Donaldson v. State, 97 Tex. Cr. R. 217, 260 S. W. 185, seems to hold against the appellant’s contention. In that case the charge was selling. This was denied by the accused, who also swore he had no liquor in his yard or possession. We upheld the action of the lower court in admitting proof that three bottles of liquor were found in his yard on a date different from that of the alleged sale but reasonably near. Such testimony in the instant case being admissible, it served the double purpose of impeaching the accused, who denied his possession of the whisky and mash found, and denied knowledge of the fact that the officer found same in his smokehouse, as well as making more likely the fact of his sale to Blair.

Appellant excepted to the charge of the court for its failure to limit the purpose of the admission of the testimony “to those specific purposes for which it was admitted.” Supposed error in the failure of the court to limit the purpose for which this evidence was admitted is also urged in appellant’s motion for rehearing. Mr. Branch cites many authorities in section 189 of his Annotated P. C., wherein is stated:

“Testimony does not have to be limited where it can only be used by the jury for the purpose for which it was introduced.”

As said by us in the Brown Case, supra, the evidence of the finding of the bottle of whisky and the whisky mash the morning following the alleged sale the night before was relevant to the main issue. It therefore needed no limitation. The court here plainly told the jury in his charge that appellant was on trial only for selling liquor, and, unless they believed beyond a reasonable doubt that he sold said liquor, he should be acquitted. To infer that the jury may have concluded that they were trying appellant for possession of the bottle of whisky or the mash found the next morning seems far-fetched and against x’eason. We fail to see how the jury could have appropriated the testimony referred to for any other purpose than impeachment or as shedding light on whether appellant sold the whis-ky to Blair.

Being unable to agree with any of the contentions of appellant, the motion for rehearing will be overruled. 
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