
    PITTS v. STATE.
    (No. 8604.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1925.
    Rehearing Denied June 24, 1925.)
    1. Criminal law <@=3784(!) — Charge that state relied on circumstantial evidence'held proper.
    In prosecution for selling intoxicating liquor, charge that state relied on circumstantial evidence for conviction held) proper under evidence.
    2. Criminal law 159(3) — Conviction, sustained by evidence, not disturbed.
    Where, in prosecution for selling intoxicating liquor, case turned on acceptance- by jury as true of statements of state witnesses, verdict ■of guilty thereon cannot be disturbed.
    3. Criminal law 184 — Sentence reformed, to give defendant benefit of indeterminate sentence law.
    Where, in prosecution for selling intoxicating liquor, by oversight in sentence defendant was not given benefit of indeterminate sentence law, it will be reformed.
    Appeal from District Court, Mitchell County; W. P. Leslie, Judge.
    R. J. Pitts was convicted of- selling intoxicating liquor, and he appeals.
    Sentence reformed, and judgment affirmed.
    W. H. Garrett, of Colorado, Tex., and Smith & Harris, of Snyder, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for tbe State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor; ■ punishment being assessed at two years in tbe penitentiary.

Tbe indictment alleges tbe sale by appellant of intoxicating liquor to one Allen Cary. Tbe record reveals that Cary is a negro and appellant a white man. Tbe transaction out of which tbe prosecution grew occurred late Saturday afternoon in tbe city of Colorado. Cary testified that between sundown and dark a man approached him on tbe street and asked him if be wanted some whisky; that be told tbe man be did, got in tbe car with him, and drove out of town; that witness procured a bottle, and tbelnan got out of a thicket a jug, from which be filled appellant’s bottle with whisky. Cary testified be bad never before seen tbe man from whom be bought tbe whisky, but is positive in tbe assertion that be bought tbe whisky from tbe man be got in tbe car with. In one place in bis testimony be said appellant did not look like tbe man. Further than this be declined to go, saying be could not be sure about it one way or tbe other, as be bad never seen tbe man before that time. He says tbe man brought him back to town, but be is uncertain at just what point be left tbe car. Cary had an oil can at tbe time be was approached to purchase the whisky, and set it down when be left tbe man in the car. After be was brought back, be returned to get bis oil can.

R. C. Dale, a deputy sheriff, testified that be saw appellant with the witness Cary; saw them talking together; saw Cary put bis oil can down, get in the car, and ride away with appellant; that be followed them for some distance, but lost tbe car, after which be came back and waited until tbe negro returned for tbe oil can, when be was taken into custody; that this was something like an hour after they left in tbe car together. He took from Cary at that time tbe bottle of whisky which Gary swore be bad purchased from tbe man be bad gone away with. A short time after this appellant drove up in a car and was taken into custody by Dale and another officer named Cook, who was with Dale at tbe time. Dale positively identified appellant as tbe man who was talking to Cary, and who got in tbe car with Cary on the street in Colorado, just after Cary set the oil can down; that when appellant was arrested he was driving the same car he and Cary had gone away in some time before. Cook, the other officer, knew nothing about the first transaction as he was not with Dale when it occurred. Both officers swore that they took from appellant’s car at the time of his arrest two quart bottles of whisky; that in the car was a square box about the size of a “fruit jar” box, in which were some rags and cotton containing impressions of fruit jars or bottles;

Appellant denied in toto the transaction with Cary. He accounted for one bottle of whisky in his car by saying that, as he returned to the city after having eaten supper at a Mrs. Enderly’s, he bought the whisky from a bootlegger. He claimed this was the only whisky in his car at the time of his arrest. Appellant introduced witnesses who testified to meeting him as he was leaving the city of Colorado at a time which, if true, would have been prior to the hour fixed by Cary as the time of the purchase of the whisky. IVIrs. Enderly also testified that appellant came to her house before sundown and ate supper there, leaving her house about 8 or 8:30 o’clock. Her daughter testified to the same facts. Mrs. Enderly, however, was positive in her statement that appellant’s brother was with him; but in this regard appellant himself admits she was mistaken. Another witness also testified that he was in Colorado late Saturday evening, and saw a negro talking to two white men, and finally saw one of them go off with the negro; that it was not appellant. As we understand this witness’ testimony, he claims appellant was one of the white men talking to the negro, but was not the man who went away with him. Nowhere in his testimony does he undertake to identify Cary as the negro.

In response to cross-examination Officer Dale testified that, when appellant came back on the street at the time of his arrest, no one was in the ear with him.. Officer Cook did not agree with him on this point, but testified that a man by the name of Shurtliff was in the ear with him at the time. Shurt-liff denied this, asserting that he had never at any time been in the car with appellant. A witness by the name of Loftus testified that he -was in the ear with appellant when he drove up immediately before the arrest was made.

The court properly charged that the state relied on circumstantial evidence for a conviction. It is appellant’s contention that under all the facts and circumstances in evidence the state has failed to produce sufficient proof to authorize a conviction, in that the facts do not exclude every other reasonable hypothesis save that of appellant’s guilt. Usually, where this question arises, it is,under conditions where, assuming the facts proven by the state to be true, they do not meet the requirements of the law where circumstantial evidence is relied on. We do not understand that to be the situation in the present case. Cary testified positively that he bought the whisky from the man he got in the car with, and Dale testified with equal positiveness that appellant was that man. If these statements were accepted as true by the jury, the facts thus established would exclude every other reasonable hypothesis than that of appellant’s guilt. On the other hand, if the jury had accepted as true the testimony of witnesses offered by appellant, an alibi was established, which, called for an acquittal. An analysis of the testimony leaijs us to the conclusion that the case turned upon the acceptance by the jury as true of the statements of Cary and Dale. This was the peculiar function the jury was called to perform. They saw the witnesses, heard them testify, and passed upon the inconsistencies and contradictions in the testimony, both for the state and appellant. They have solved the issue of fact in favor of the state. Under the circumstances of this case, we would feel unauthorized to disturb the verdict.

A number of bills of exception appear in the record, none of which we think are meritorious, and none of them of sufficient importance to call for discussion.

We notice that by oversight in the sentence appellant was not given the benefit of the indeterminate sentence law. The sentence will be reformed, to read that he serve in the penitentiary not less than one nor more than two years. As thus reformed, the judgment is ordered affirmed.

On Motion for Rehearing.

MORROW, P. J.

Responding to the appellant’s motion for rehearing, we have carefully re-read the statement of facts. The evidence seems conclusive that the witness Cary obtained the whisky which was introduced in evidence from a man in whose car he was riding. Cary testified in a definite manner, and other circumstances corroborated him. He was unable to identify the appellant as the person in whose car he traveled and from whom he got the whisky. The witness Dale, however, was quite definite in his testimony as to the identification of the appellant as the man who was in company with Cary. In our judgment, the only theory upon which this court could hold that the evidence was insufficient to support the verdict would be that Dale’s testimony was false. It is true that he admits that he had had no previous personal acquaintance with the appellant. However, he saw him several times on the day of the occurrence, and had occasion and ap-portunity to take note of his appearance. His testimony does not reflect the mere opinion -touching the identity, as was the case in Smiley v. State, 87 Tex. Cr. R. 528, 222 S. W. 1108.

The motion for rehearing is overruled. 
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     