
    MINTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1912.)
    1. Intoxicating Liquors (§ 200) — Indictment AND INFORMATION.
    An indictment for keeping a house where intoxicants were sold in quantities of a gallon or less without having obtained a license to “retain” such liquors should be amended to use the word “retail,” instead of “retain’’; it being no violation of law to “retain” liquors in any quantity, since the laws only prohibit the retailing of liquors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 219, 220; Dec. Dig. § 200.]
    2. Criminal Law (§ 721) — Trial — Argument of Counsel.
    A remark by the prosecuting attorney in his argument, where the defendant did not testify, that the burden of proof was on defendant, and he must come in and show his reasons, etc., and he knew better than any one else whether he sold beer, etc., is prejudicial, and violative of the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dee. Dig. § 721.]
    3. Intoxicating Liquors (§ 236) — Trial-Evidence.
    Evidence held, insufficient to support a conviction for keeping a house for the sale of liquor without having a license, in violation of the liquor laws.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    I. Criminal Law (§ 421) — Ownership—Evidence.
    In a prosecution for violation of the liquor laws, the ownership of the place where liquor was charged to be sold cannot be proved by general reputation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 976-983; Dec. Dig. § 421.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Jim Minter was convicted of crime, and he appeals.
    Reversed.
    
      Lively, Nelms & Adams, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for tlie State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep‘r Indexes
    
   DAVIDSON, P. J.

Appellant was charged by indictment with all sorts of violations of tbe liquor laws.

There are several counts in tbe indictment. The first alone was submitted to the jury. In this count it is charged that appellant did unlawfully, directly and indirectly, keep and was concerned in keeping a certain house as a house where spirituous, vinous, and malt liquors were sold and kept for sale, in quantities of one gallon and less than one gallon, without having first obtained a license under the laws of the state of Texas to retwm such liquors. Motion to quash and motion in arrest of judgment were made and overruled. The principal point of attack was that it charged no offense against the law, there being no prohibition for parties to “retain” liquors. We would suggest that the prosecuting officers take sufficient time in writing their indictments to charge the offense as required by the statute in plain and intelligible words. “Retain” is a well-known word in the English language, and has an entirely different meaning from what we suppose the pleader intended to state, to wit, “retail.” It is no violation of the laws of Texas to “retain” liquors in any quantities. If this case should be tried again, it would be well enough for the prosecuting attorney to charge the appellant by information, or have him rein-dicted, with having failed to obtain his license to “retail,” and not “retain,” such liquor.

There are several other questions suggested for revision, one of which we notice particularly. During the argument of the prosecuting attorney he used the following language: “Now, then, the burden of proof is on the defendant, first to show that he has a license, and the court will charge you that the burden is upon this defendant, and when we once prove that he has made as many as two sales, or kept it in his house for sale, he must come in and show his reasons for it. Who knows better than Jim Minter the members of that club? Who knows better than Jim Minter whether or not he sold beer to that man?” The objection to this argument is that it was a direct reference to the failure of defendant to testify, and it is recited as a fact that he did not testify in the case. We are of opinion that this bill of exceptions is well taken. It was a reference to the failure of the defendant to testify, and inasmuch as he did not take the stand • in his own behalf the language was violative of the statute.

Another ground may be noticed; that is, that the evidence is not sufficient to support the conviction. The witness Rose testified that he joined the club, and was a member of it something like nine months; that he was charged $1 initiation fee, which he had not paid, but supposed it was charged up against him on the books; that he was also charged 10 cents a week dues as a sick benefit. This, it seems, he had not paid. He said he went to this place “not as often as once a week”; that, when he would go there, he would buy a glass or two of beer and play pitch; that on one or two occasions the defendant waited on him, served him with four-ounce glasses of beer, for which he paid him 5 cents a glass; that others waited on him, and he saw these parties around the place. He mentioned the names of others; but we deem it unnecessary to go into a detailed statement of those matters. The general reputation of the house was also shown by the sheriff of Dallas county and the chief of police of Dallas city as being a place where intoxicating liquors were sold. There is no evidence in the record as to the ownership, otherwise than the fact that the defendant Minter was there about the place and some time in the past had run a saloon at the place.

The sheriff and chief of police, one or both, testified to the general reputation of ownership; but, while the; record is not clear, we are led to believe that the court excluded that, as he ought to have done, from the consideration of the jury. But, in any event ownership cannot be proved by general reputation. In the attitude of the testimony, we are of the opinion it is not sufficient to support this conviction as this record presents it.

The judgment is reversed, and the cause remanded.  