
    THOMAS v. STATE.
    (No. 11172.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied March 28, 1928.
    1. Criminal law <©==> 1171(1) — Action of state’s attorney in tendering unidentified analysis of liquor held harmless, where testimony definitely established Intoxicating character of liquor.
    In prosecution for possession of intoxicating liquors for the purpose'of sale, wherein testimony sufficiently established possession of choc beer, and that it was intoxicating liquor, action of counsel for the state in tendering analysis or tendering paper, intimating that it was analysis without proper identification, during argument of defendant’s counsel that state had not analyzed liquor, held harmless, though state’s counsel was unwarranted in doing so.
    I
    On Motion for Rehearing. 1
    2. Criminal law 1165(1)— Appellate court where evidence is plain and lowest penalty inflicted, will not reverse for matters only ere--ating prejudice.
    When the evidence, is plain and violation of law is made out and the lowest penalty, inflicted, appellate court will not reverse for matters whose only effect could be tp create prejudice in minds of jury against accused.
    Appeal from District Court, Grayson Coun-’ ty; F. E. Wilcox, Judge.
    Charley Thomas was convicted of the possession of intoxicating liquor for the purpose. of sale, and he appeals.
    Affirmed.
    
      Jas. D. Buster, of Sherman, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   ' MORROW, P. J.

The offense' is the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year.

Roberts, an officer, testified that, possessed of a search warrant, he searched the premises of the appellant and found about a gallon of what was called “choc beer” in his house, and between 20 and 25 gallons of “choc beer” in a shed just back of the house; that he tasted the “choc beer” in each of the places and that it was intoxicating liquor. He said:

“I don’t know just what per cent, of alcohol it did hare in it. I did not have it analyzed. * * * I do not know how much alcohol it had in it, but a pretty, good per cent, though.”

When the witness said he did not have it analyzed, he added', “I do not know whether that was the occasion or not, but I carried it up to Mr. Brouss; I believe I did.” The state’s attorney then said, “Here is the analysis.” Counsel for the defendant objected to the analysis until somebody came and identified it. The objection was sustained. '

Counsel for the defense, in his argument to the jury, said:

“Why didn’t the state have this choc analyzed, if it had any alcohol in it? They ought not to ask a jury to guess a man in the penitentiary.”

Thereupon state’s attorney said, “If you want the .analysis, here it is.” The court instructed the jury not to consider the remarks ©f the county attorney. Other like exchanges of comments by the opposing counsel were made, and instructions to disregard those of the prosecution were given to the jury.

Under the facts, counsel for the state was not warranted in interrupting the remarks of appellant’s counsel by tendering the analysis or tendering the paper which intimated that it was the analysis. The court properly sustained the objection to the document because there was no proof that it was the analysis. However, in view of the record, we fail to perceive the possibility of harm to . the appellant from the procedure. There was but one witness who testified, and his testimony was definite that he had tasted the liquid which was found upon the appellant’s premises; that it was what was known as “choc beer” and was intoxicating liquor. This was not controverted by any testimony. There was no effort to impeach the state’s witness, and no testimony was offered by the appellant. In that state of the record, it seems manifest that there could have been no more favorable verdict to the appellant upon the undisputed facts.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In passing on the contentions made by appellant, it must be borne in mind that the accused was given the lowest penalty, and that no testimony was before the jury save that of the one state witness, who testified positively to the fact that he found in appellant’s possession a large quantity of choc beer, that he drank some of it, and that it was intoxicating liquor. In view of these facts, we are unable to conclude that the conduct of the district attorney, either in what was done during the introduction of evidence or in the argument, even if deemed by the trial court to be of such nature as to call for an instruction to the jury not to consider it, should call for reversal. When the evidence is plain and a violation of the law is made out, and the' lowest penalty inflicted, we do not reverse for matters whose only effect could be to create prejudice in the minds of the jury against the accused.

The motion for rehearing will be overruled. 
      ©~>For other eases see same topic and KEY-NU1 BER in all Key-Numbered Digests and Indexes
     