
    ROSS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Intoxicating Liquors (§ 228) — Prosecution — Admission oe Evidence»
    Where accused, in a prosecution for selling intoxicants in prohibition territory, admitted that he received the money from prosecuting witness, and delivered the whisky to him, but claimed that he was acting as agent in so doing, evidence by prosecuting witness that he had purchased whisky from accused on another occasion was admissible on the issue of agency.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 288; Dec. Dig. § 228.]
    2. Witnesses (§ 337) — Credibility — Accused as Witness — Pending Indictments.
    In a prosecution for selling intoxicants in violation of the local option law, evidence that other indictments for felony in violating the local option law were pending _ against accused in certain counties was admissible to affect accused’s credibility as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    Appeal from Montague County Court; Levi Walker, Judge.
    Frank Koss was convicted of unlawfully selling intoxicants, and appeals.
    Affirmed.
    W. S. Jameson, of Montague, and Latti-more, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted for making a sale of intoxicating liquor in territory where prohibition was in force to Bruce Sloan.

That prohibition was in force in Montague county is a fact admitted in the record. Bruce Sloan testified: “I am acquainted with Frank Ross (points out the defendant). I saw the defendant in Bowie on the 15th day of November, 1910, and asked him for some whisky, and got two bottles of whisky from him, and gave him ⅞2 for the same. This was in Montague county, Tex., on or about November 15, 1910. I gave him the money, the $2, and he went off, and was gone 10 or 15 minutes, and came back with the two .bottles of whisky, which he turned over to me.” Being asked, ‘‘Did not the defendant tell you that he did not have any whisky, but would try to get some?” said, “I do not remember; he might have said that. We had some conversation; but what was said I could not say.” Being asked, “Did not the defendant tell you he had no whisky? Ans. He might have said so; there was some conversation between us. It has been so long I do not remember what it was. He took the money, and was gone awhile, and I waited there in a room close to the Burns Hotel, where I gave him the money, until he came back with the whisky. I gave him the money before he went off and brought me the whisky back. He took the money with him. He went back towards the Jackson wagon yard, which is back of the Burns Hotel. The Jackson wagon yard had a gate open on the west, and one on the east, and has an alley running on the north side between it and the Pat Smith wagon yard.”

The only other witness who testified in the case was appellant, and he testified; “I remember letting Bruce Sloan have the two bottles of whisky on the 15th of November, 1910, as testified to by him. He come to me there in Bowie and said he wanted to buy some whisky. I told him I did not have any whis-ky. He asked me if I knew where he could get it. I told him there was a man there I thought with some whisky. He asked he to see if I could get it for him. I told him I would try. He gave me $2. I took the money, and went out through the Jackson wagon yard into the Pat Smith wagon yard, and bought two bottles of whisky from a man by the name of Moore.”

On cross-examination he was asked how many local option felony cases had been filed against him, and he said several; that he had been tried for pursuing the occupation and acquitted. He was also asked if he had not prior to the occasion alleged in this indictment sold whisky to Bruce Sloan, and he said he had not. Bruce Sloan was then recalled and testified that he had purchased whisky from appellant prior to the occasion alleged in the indictment. To the testimony of Bruce Sloan, in rebuttal, that he had purchased whisky from appellant on a prior occasion, appellant objected, and cites us to the cáses of Mitchell v. State, 159 S. W. 1073, and Gaines v. State, 63 Tex. Cr. R. 73, 138 S. W. 387. In the Gaines Case cited the appellant denied making the sale, and denied the prosecuting witness received any liquor from him. He did not admit delivering the liquor, and receiving the money, and contends that he had procured it from another as agent of the prosecuting witness. There was no question of agency; it was simply a question of sale or no sale. However, in the case of Mitchell v. State, 159 S. W. 1073, cited, the question in that case was whether or not Mitchell acted as agent of the prosecuting witness, and we held that testimony as to other sales was admissible on the issue of agency; it being specifically held in that case that, as the testimony raised the issue of agency, the testimony of the prosecuting witness Bonney as to other sales made to him was admissible on this issue. And in the case of Nobles v. State, 158 S. W. 1135, this court specifically held as follows: “Another contention by appellant is that the court should not have permitted the state to prove by other witnesses, over his objections, which was done, that the appellant, in June, 1912, and in August prior to August 10, 1912, made to the several witnesses who so testified other and separate sales of intoxicating liquor to such witness, clainling that such evidence did not tend to develop the res gestee, or establish system, or to connect the appellant with the alleged sale to Scott, and that the sale in June to one of the witnesses was too remote. He cites several cases to the effect that, where the sole question in the case was whether or not a particular sale had been made, and the question at issue was solely whether or not this particular sale had been made, other and distinct sales were not admissible. As said by this court in the recent case of James v. State, 63 Tex. Cr. R. 80, 138 S. W. 615: ‘It is well settled, where the sale has been maae out positively and clearly, that the introduction of other sales is not permissible as evidence to go to the jury. But it is also well settled that there are exceptions to this general rule, and, if the evidence tends to develop res gestee, or show the intent or connect the defendant with the offense for which he is being tried, or it is intended to show system, where system becomes a part of the case, it may be pertinent.’ This latter rule is well established, and has in many cases been held in prosecutions for violating the prohibition law. See Prinzel v. State, 35 Tex. Cr. R. 274, 33 S. W. 350; Bennett v. State, 50 S. W. 945; Young v. State, 66 S. W. 567; Skipwith v. State, 68 S. W. 278; Holland v. State, 51 Tex. Cr. R. 142, 101 S. W. 1005; Efird v. State, 44 Tex. Cr. R. 448, 71 S. W. 957; Hollar v. State, 73 S. W. 961; Roach v. State, 47 Tex. Cr. R. 500, 84 S. W. 586; Gorman v. State, 52 Tex. Cr. R. 329, 106 S. W. 384; Bruce v. State, 39 S. W. 683; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111. It is unnecessary to cite other cases. As shown above, appellant contested most vigorously the fact that he had made any sale to said Scott, as alleged in the indictment. He contended that it was not a sale, but that he acted solely as .the agent of Scott in procuring and delivering to him the liquor charged to have been a sale in this case. So that unquestionably this evidence of other sales by appellant to these several witnesses was pertinent and admissible.”

As the appellant in this case admitted he received the money from the prosecuting witness, and delivered the whisky to him, and made the defense of agency only, this testimony was admissible on that issue, and the court did not er'r in so holding.

Under all the decisions of this court it was admissible to show that there were indictments pending against appellant for 'violating the local option law in those counties where the offense is a felony, for the purpose of affecting his credit as a witness.

There are two complaints as to the remarks of the county attorney in his address to the jury. No charge was requested in regafd thereto, and under such circumstances the remarks are not of that character to present reversible error.

The evidence is amply sufficient to support the conviction as shown by the testimony hereinbefore copied, and the judgment is affirmed.  