
    SULLIVAN v. STATE.
    (No. 6284.)
    (Court of Criminal Appeals of Texas.
    June 8, 1921.
    Rehearing Denied Oct. 19, 1921.)
    !. Intoxicating liquors @=3216 — Indictment charging unlawful possession of liquor need not describe liquor as requiring federal tax.
    Indictment charging defendant with having possession of intoxicating liquor not for medicinal, scientific, sacramental, or mechanical purposes in violation of the Dean Law, §§ 1. 2, need not describe the liquor as being.such as required a federal tax as a beverage, notwithstanding section 4, providing that the liquor. described in sections 1 and 2 should be construed to include certain named liquors and all liquors requiring a federal tax as a beverage, such statute having reference merely to matters of proof.
    2. Criminal law @=>854(9) — That juror remained momentarily behind after jury had been called from its room held not ground for reversal.
    That one juror remained momentarily behind in a toilet after jury had been called from its room into court held not ground for reversal, in view of showing that he rejoined other jurors within a minute without having spoken or been spoken to by any person.
    3. Criminal law @=>l I66i/2(4) — Admission of evidence in defendant’s! absence reintroduced in his presence not ground for reversal.
    The admission of evidence in defendant’s absence held not ground for reversal under Vernon’s Ann. Code Or. Proc. 1916, arts. 755, 756, requiring the defendant’s presence during the trial, where on discovery of defendant’s absence the proceeding was stopped until his return, and where after his return the same evidence was reintroduced in his presence.
    4. Criminal law @=3475 — 'Witness experienced in handling intoxicants may testify that whis-ky in defendant’s possession was new whisky.
    In prosecution for having possession of liquor in violation of the Dean Law, in which defendant claimed to have had such possession before the law went into effect, witness experienced in handling intoxicating liquor, who testified that he could tell new whisky from old whisky, was properly permitted to testify that the liquor found in defendant’s possession was new whisky.
    5. Intoxicating iiquors @=>233(2) — Officers’ testimony that they had searched defendant’s premises' without finding intoxicating liquor admissible.
    In prosecution for having possession of intoxicating liquor in which defendant claimed to have had possession of the liquor from a time prior to when the law forbidding the possession took effect, testimony of officers that they had. frequently searched defendant’s premises for intoxicating liquor, since the law had taken effect, without finding such liquor, held admissible to rebut such contention.
    6. Criminal law @=>1036(2), 1044, 11701/2(0— Voluntary statement not responsive to question held not ground for reversal.
    In prosecution for having possession of intoxicating liquor claimed to have been possessed since before the prohibition law took effect, voluntary statement of witness who had testified to searching defendant’s premises without finding such liquor that he had found a drink or two of liquor in a bottle, which the officers had not considered important, not made in response to the question asked, held not ground for reversal, where the liquor in such bottle was not relied on to convict and there was no separate objection nor motion to exclude the statement.
    7. Intoxicating liquors @=3239(1) — Charge held to submit defense that defendant had had possession since before the law prohibiting possession took effect.
    In prosecution for having possession of intoxicating liquor, court’s charge held sufficient to submit defense that defendant had had possession of the liquor since before the law prohibiting such possession had taken effect.
    Appeal from District Court, Grayson County; Silas Hare, Judge.
    Frank Sullivan was convicted of having in his possession intoxicating liquor not for medicinal, scientific, sacramental, or mechanical purposes, and he appeals.
    Affirmed.
    B. P. Gafford, of Sherman, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   . LATTIMORE,- J.

Appellant was convicted of having in his possession intoxicating liquor, not for medicinal, scientific, sacramental, or mechanical purposes, and his punishment fixed at confinement in the penitentiary for one year.

We do not think it necessary that in the indictment the liquor which appellant was charged with possessing should have been further described as being such as required a federal tax as a beverage. The statement in section 4 of what is known as the Dean Law (Acts First and Second Called Session, 36th Legislature, c. 78) that the liquor described in sections 1 and 2 of said act should be construed to include certain named liquors, and “all * * * liquors * * * which require a federal tax as a beverage,” has reference to matters of proof. The specific purpose of said- section 4 seems to Be to obviate the necessity for alleging any of the descriptives therein mentioned, and to make it plain that the descriptions of sections 1 and 2 may be met by proof of possessing, manufacturing, etc., the liquors described in said section 4.

We think there was no such separation of the jury during the instant trial as constitutes misconduct. Upon the state’s controversy of this part of appellant’s motion for new trial evidence was heard, and the facts show that at some stage of said trial, while the jury was in its room, they were called to come into court, and one of the jurors remained momentarily behind in a toilet. This juror testified that within a minute he went into the courtroom and rejoined his. fellows without having spoken to or been spoken to by any person. A deputy sheriff testified that he saw said juror come out of the jury room and rejoin the other jurors in the box, and that he spoke to no one and no ■one spoke to him. Injury was thus entirely negatived by the state.

During the taking of testimony the appellant absented himself from the courtroom while a witness was testifying. At once, upon the discovery by the court of his absence, the proceeding was stopped until appellant’s return. It appears that while he was absent a witness identified certain jars of liquor as being that found in appellant’s possession. After appellant returned the same evidence was reintroduced in his presence. The question has been fully discussed by this court before. Cason v. State, 52 Tex. Cr. R. 224, 106 S. W. 337.

A witness who testified that he had had much experience handling intoxicating liquor, and had seen “a right smart liquor” made in Georgia, and that he could tell new whisky from old whisky, was permitted over appellant’s objection to state that in his judgment the liquor found in appellant’s possession was new whisky. We know of no rule or authority which would exclude such testimony of a witness whose experience appeared to qualify him, even if the matter be such as to require some degree of expertness in order to enable the witness to testify. The objection would seem rather to go to the weight of the testimony than to its admissibility.

Appellant claimed that he had possessed the liquor in question from a time prior to the taking effect of the law forbidding such possession. As tending to refute his claim in this regard, the state was allowed to introduce testimony of pfficers who stated that they had frequently searched his premises for intoxicating liquor, since the taking effect of said law, and that they had found no such liquor as that charged in the instant ease. We think the effect of such testimony was to sustain the state’s contention of illegal possession, and to rebut that character of possession relied upon by app'ellant. The fact that one of said witnesses stated that at the time of such search he found a drink or two of liquor in a bottle, which they did not consider to amount to anything, would not seem to be reversible error. The fact that such liquor was in said bottle was not relied on to convict, and there was no separate objection made to such testimony which appeared to be a voluntary statement of said witness, and not in response to the question asked. No motion to exclude was made by appellant, and we think no reversible error appears.

Complaint is made that the charge of the court did not affirmatively state to the jury the theory of appellant’s defense on the ground of his possession of said liquor prior to the taking effect of the Dean Act, An examination of the main charge discloses the fact that said theory was subiMtted, and both affirmatively and negatively by tile trial court, in that he instructed the jury that they must believe that appellant’s possession was not from a time prior to the taking effect of said law, before they could convict; and also instructed them that, if they had a reasonable doubt as to whether such possession had so extended, they should acquit.

Objection was made to certain statements of the prosecuting attorney in his argument to the jury. The record discloses that no written request was presented asking an instruction that the jury not consider such argument. This has ordinarily been held necessary unless the character of the argument be such as that injury appear probable. We do not think the argument in the instant case such as to make it reversible error in the absence of such request.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant insists again that the reception of part of the evidence of Sheriff Oraig in the absence of the accused, should be held reversible error. The facts appear to be that when the court adjourned at noon lie adjourned to meet at 1:30 o’clock p. m., and apparently when that hour was reached proceedings in the trial were resumed, and the witness Oraig was called to the stand and asked and answered several questions pertaining to certain jars then in the presence of the jury. Some one called attention to the fact that appellant was not present, and the proceedings were halted, and in a few moments he came in. Thereupon the identical evidence given during his absence was introduced from said witness Oraig, and appellant through his. counsel cross-examined said witness at length. Appellant’s counsel appears to have been present all the time. The matter was complained of in appellant’s motion for new trial, and a bill of exceptions was taken to the refusal of the new trial upon this ground. Reliance is now had upon Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117, and Bell v. State, 32 Tex. Cr. R. 436, 24 S. W. 418. Appellant refers to the Oason Case, cited in our original opinion, and calls attention to the fact that, after the rendition of the opinion in the Oason Case and, before the Hill Case was handed down, the Thirtieth Legislature passed an act (Acts 30th Leg. [1907] c. 19) requiring the personal presence of the accused in a felony case at the trial. This part of the act mentioned has been the law of this state for many years prior to the rendition of the Cason Case. Rev. St. 1879, art. 596; White’s Ann. C. P. art. 633. We are in accord with both the Hill and Bell Oases on their facts.

In the Hill Case certain evidence of witnesses was reproduced at the request of the jury and while the defendant was absent, his presence having been expressly waived by his attorneys. This court has held in numerous cases that the presence of the accused, which is specifically required by the statute in such case (see articles 755, 756, Vernon’s Crim. Proc.), cannot be waived by the attorneys for the accused. Shipp v. State, 11 Tex. App. 46; Mapes v. State, 13 Tex. App. 85; Granger v. State, 11 Tex. App. 454. The error of the court in the Hill Case was not the result of inadvertence or lack of knowledge of the absence of the accused, but was the intentional and deliberate act of the court and counsel for the defendant. In the Bell Case, supra, the accused was not on bond, but was in the custody of the sheriff, and was carried by the officers from the courtroom, and during his absence material testimony was introduced, and the accused was at no time confronted with said witnesses as required by our Constitution, and was given no opportunity to examine such witnesses,' and the testimony was at no time reproduced or offered in the presence of the defendant. The statutory requirement that the áccused be present at the trial, in cases in which it is apparent that no possible injury could have resulted to the accused, has never been given an ironclad construction by this court. In O’Toole v. State, 40 Tex. Cr. R. 578, 51 S. W. 244, the accused was absent from the courtroom while the jury were being impaneled, sworn, and the indictment read to them. His absence seemed to have been without the knowledge of the court., Upon his return the trial court asked him if he waived the going over of the proceedings had in his absence, and he answered that he did. This court, through Judge Henderson, held that, if appellant had refused to agree to such waiver, the court could have immediately rectified the matter — by which we take this court to mean that the trial court would have proceeded to have the indictment reread and the jury sworn, etc. Notwithstanding the proceedings that were had out of the presence of the accused, this court held no error shown, and the cause was affirmed.

In Killman’s Case, 53 Tex. Cr. R. 570, 112 S. W. 92, this court, through Judge Davidson, • held that the voluntary retirement of the accused from the courtroom for five or six minutes during the argument would not vitiate the conviction. True, the case was a misdemeanor, but one in which the punishment was by imprisonment, and it thus comes within the rule. In Whitehead v. State, 66 Tex. Cr. R. 4S2, 147 S. W. 583, the accused absented himself from the courtroom during argument from 3 to 10 minutes in a felony case. This court held it no cause for reversal, and discussed at length many authorities. In Fry’s Case, 78 Tex. Cr. R. 435, 1S2 S. W. 331, the accused was on bond, and shown not to have been present at an extended colloquy between the trial judge and the jury. In passing upon his contention that what was done in his absence was error, this court held that, being on bond, it was the duty of the appellant to remain in attendance on the court while the jury were out considering his case, and, having absented himself, and it appearing that the matters that transpired in his absence were not such as could have injured him, no reversible error was shown. In many cases cited and discussed in Ann. Cas. 1913C, p. 1147, note, in most of which the doctrine seems to be adhered to that, where the accused is on bon'd, bound by the terms of such bail to be before the court, if he chooses to absent himself during part of the trial, unless it be of some particular hurt and vio-lative of some special statute, he has no cause for complaint. We are not now called upon to decide that question, but content ourselves with saying that on the facts in the instant ease we are of opinion that the accused was confronted with the witnesses against him, and given every opportunity to cross-examine and preserve any rights due him, and that he was present at his trial within the contemplation of our statute.

The motion for rehearing is overruled. 
      @=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes
     