
    MINCE v. STATE.
    (No. 7670.)
    (Court of Criminal Appeals of Texas.
    June 6, 1923.)
    1. Intoxicating liquors <8=3236(1 I, 13) — Evidence held to support conviction.
    In trial for sale of liquor, evidence held to support jury’s finding that accused was interested in the sale of the liquor, and that the liquor was whisky.
    2. Criminal law <8=3829(4) — One instruction upon accommodation agent held sufficient.
    In trial for sale of liquor, where the jury was instructed that, if accused was an accommodation agent for the buyer, or if they had a reasonable doubt as to that contention, they should acquit, ¡held, that it was not error to refuse additional special charges upon that subject.
    3. Intoxicating liquors <8=3232 — Conduct of party after receiving whisky held admissible.
    In trial for liquor selling, evidence of the boisterous conduct of the party for whom the liquor was purchased after they received it was admissible, as bearing upon its effect upon those who drank it, on the issue of its intoxicating character.
    4. Criminal law <8=3351 (3) — Evidence of flight properly received.
    In liquor selling prosecution, held that evidence of flight or circumstances tending to show flight were properly received.
    5. Criminal law <8=3-392 — Absence of eyewitnesses properly explanable by showing inability to subpoena them.
    In trial for sale of liquor, which was bought for a carousing party, proof by the deputy sheriff that he was unable to subpoena certain members of the party because he could not find them held proper as explaining the absence of these eyewitnesses.
    6. Intoxicating liquors <8=3233(2) — Evidence that fruit jars containing whisky were found at accused’s home held admissible.
    In liquor selling prosecution, testimony that the deputy sheriff went to accused’s place to arrest him and found fruit jars, some containing whisky, held relevant on the issue raised by accused’s testimony that he had no whisky at his home, and had no connection with the sale of it.
    Appeal from District Court, Elo-yd County; R. C. Joiner, Judge.
    Marvin Mince was convicted of the unlawful sale of intoxicating liquor, and appeals.
    Affirmed.
    
      W. W. Kirk, of Plainview, for appellant.
    R. G. Storey, Asst. Atty. Gen., for tlie State.
   MORROW, P. J.

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of 1½ years.

A party of young men and women were together. One of them, Fred Wimberly, wrote a check for $3 and gave it to Ocie Husky, who, together with one of the girls, went in an automobile after some whisky. They went to the home of the appellant, which was on a ranch. Husky told the appellant he wanted to buy some whisky. Although appellant had retired for the night, he got up and ptít op his clothes and went across the prairie about a mile. Quoting Husky, he said:

“It was dark. I had a check that Fred Wimberly gave me for $3, and gave it to the defendant for whisky. I got a quart of whisky from him for this $3 check, I guess; that is what it was supposed to be. I handed the check to the defendant. He put the whisky in the car for the §3.”

There was testimony showing that the parties drank the whisky, and, while there was a controversy on the subject, the evidence is sufficient to show that the liquor obtained was intoxicating. Several of the parties testified to facts showing this. The girls, it seems, were of ill repute. Husky, when recalled by appellant, testified that, when he mentioned the purchase of the whisky, appellant said he did not have any liquor, but that some might be obtained at the headquarters from a man named Webb Roberts. The witness handed the check to appellant, and asked him to drive the car to the place where the whisky could be obtained. This appellant did. The witness sat down in the car with a quilt over him, and did not know where they were driving, and did not see what took place. He did not know that the car stopped until he heard appellant talking to some one. He found the whisky in the car, but did not know who put it there. He said on cross-examination that he gave a cheek to the appellant to get some whisky, and the appellant said he did not have it, but could get it, and he did get it. The witness could not say who put it in the car; that he did not handle it until he had gone some distance.

Appellant’s version is this: He told Husky he had no whisky, and in reply Husky inquired about where some could be obtained. He informed Husky that it might be gotten at the headquarters. Appellant, at the request of Husky-, and for his accommodation, drove the car to the headquarters om the ranch, and went to Webb Roberts and obtained the whisky. He handed him the cheek which Wimberly had executed, and which named no payee. Roberts put the whisky in the car.

Roberts was not living upon the ranch at the time of appellant’s trial, and his whereabouts was unknown. According to appellant, he, at the request of Roberts, exchanged the check with Wimberly for money which was given to Roberts. Appellant left the ranch in search of work, first,going to Electra and later to Oklahoma.

There was found upon appellant’s premises when the officers went to arrest him some fruit jars, one of which contained a small quantity of whisky. Three or four weeks later appellant was arrested in the Creek country of Oklahoma. The opinion is expressed that the evidence is sufficient to support the finding of the jury that the appellant was interested.in the sale of the liquor, and that the liquor was whisky. In support of his proposition that Husky’s testimony is contradictory, and does not support the conviction, appellant cites Bland v. State, 92 Tex. Cr. R. 636, 244 S. W. 1023; Cramer v. State (Tex. Cr. App.) 246 S. W. 380; Bell v. State (Tex. Cr. App.) 247 S. W. 284; Key v. State, 37 Tex. Cr. R. 77, 38 S. W. 773; Cortinas v. State (Tex. Cr. App.) 245 S. W. 911. The position is not, in our opinion, sustained.

The jury was instructed in appropriate language.that, if appellant was acting as an accommodation agent for Husky, they would acquit, or if upon that subject they had a reasonable doubt, they ,would do likewise. Additional special charges upon this subject are not necessary. The court was not in er,ror in refusing to give them.

Granting that Wimberly was interested in the purchase, he was not an accomplice. The statute at the time the offense was committed expressly so declared. See Acts 37th Leg. 1st Called Sess. c. 61, § B (section 2e), being Vernon’s Ann. Penn. Code Supp. 1922, art. 588¼a3.

There was no error in receiving and refusing to exclude the testimony touching the conduct of the party after they received the whisky. This is described by the witness Dillingham. From her testimony it appears that they were boisterous and profane, and some of the men and women went to bed together; that one of them vomited. Without further detail we are of the opinion that the evidence was admissible as bearing upon the effect that the liquor obtained had upon those who drank it. This was an issue with reference to its intoxicating character. The court, in qualifying the bill complaining of the refusal to exclude this testimony, used this language:

“The testimony showed after getting what was called ‘whisky’ all the parties stopped at the Owens House, and were cutting up and ‘squalling,’ and one vomiting, and the matter complained of in the bill is to part of the general conduct after drinking what was termed ‘whisky.’ It was for' the jury to pass upon, the conduct of the girls in pulling ‘all’ of their clothes off, and acting as they did, as to whether they were affected by drinking, and on question as to whether the whisky was intoxicating.”

The evidence of flight or circumstances tending to show flight were properly received.

Qompiaint is made of the proof by the deputy sheriff that he was unable to subpoena the witnesses Guin, Weaver, and Eel-ton, who were members of the party on the night that the offense is charged to have been committed, for the reason that he could not find them. We see no impropriety in the state thus explaining the absence of these eyewitnesses.

Complaint is made of the fact that after the departure of appellant from his home the deputy sheriff went to his place for the purpose of arresting him,, and found certain fruit jars, some of which contained whisky. In our opinion this testimony was relevant upon the issue presented by appellant in his testimony to the effect that he had no whisky at his home, and had no connection with the sale of it.

The state’s witness did not know or specifically claim that he knew where the whisky was obtained. He only knew that appellant got in an automobile and drove it while the witness sat in the car, covered up with a quilt, in company with one of the girls. Appellant claims that the whisky was obtained from Roberts. On this issue the circumstances showing that there was whisky at appellant’s house we think were not irrelevant. The evidence showed that at the time the officer went to appellant’s house there were indications that he had not been gone long; that the clock was still running, and there was other evidence of the habitation having been recently occupied.

The judgment is affirmed. 
      <g=s>For other oases see same topic and KSY-NUMBER in all Key-Numbered Digests and Indexes
     