
    GONZALES v. STATE.
    (No. 7958.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1923.)
    1. Intoxicating liquors <&wkey;236(6i/2)— Evidence held to show guilt of possessing intoxicating liquors.
    Evidence held to show accused was guilty of possessing intoxicating liquors.
    2. Criminal law &wkey;>478(l) — Bartender’s testimony classifying liquor found in accused’s possession held properly received.
    Testimony of a bar tender, who was able to identify intoxicating liquors of various types, that a part of the liquor found in accused’s possession was aguardiente and that part of it was tequila held properly received.
    3. Criminal law <&wkey;423(2) — Conversation of witness with coconspirator in accused’s absence held properly received to show furtherance of common design.
    Where there was evidence that J. and accused were acting together in the possession of liquor for the purpose of sale, the admission of that part of the testimony detailed by witness .which related to a conversation with J. when accused was absent was properly received as one of the acts or declarations of the cocon-spirator in furtherance of the common design.
    4. Witnesses &wkey;>337(6) — Evidence of previous conviction held properly received as bearing upon credibility of accused interposing alibi.
    Where, in a prosecution for unlawful possession of liquor, accused testified in his own behalf to an alibi, testimony that accused had been convicted for unlawfully selling intoxicating liquor held properly received as bearing upon his credibility as a witness.
    5. Criminal law <&wkey;859 — Permitting witness to rehearse testimony to jury, requesting same after their retirement, held not abuse of rule.
    After they retired, the jury announced their inability to agree touching the testimony of witness B. and requested its reproduction, and the court stenographer endeavored to reproduce it, but because he was ill his reading was unintelligible, and the jury, after retiring, again expressed in writing their inability to understand reporter’s reading of his notes, whereupon the court permitted the witness B. to rehearse his testimony as previously given in the presence of accused and the court; held, that no abuse of the rule permitting such practice was shown.
    Appeal from Criminal District Court, Cameron County; A. W- Cunningham, Judge.
    Juan Gonzales was convicted of possessing intoxicating liquors, and appeals.
    Affirmed.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

Conviction is for the possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The witness Burton testified in substance that about 8 o’clock at night he' and one Carter approached an old Mexican in an effort to buy tequila and arranged to call at his house at 10 o’clock to receive the liquor. The appellant was not present at the time of the conversation, but at 10 o’clock Burton and his companion went to the place designated by the old Mexican, and he later appeared, accompanied by the appellant. It was agreed that the old Mexican, whose name was Emilio Jaso, would deliver 50 bottles of tequila for $100. When he and the appellant appeared, they insisted that Burton and Carter should enter the house and receive the liquor. This they declined to do. Emilio finally said that they had but 29 bottles there, but that he would get 19 bottles more. The witness agreed to wait in the car which they had driven to the place. The appellant left and soon returned with a sack and a pasteboard box containing 7 quarts of tequila. He and two other Mexicans brought 6 bottles and Emilio brought 29 bottles in a sack and laid them by the car. While pretending to count the money, the witness turn-eel on the lights of the car and observed the features of the parties, including the appelIdnt. While the witness was counting and recounting the money and waiting for the approach of friends, two of his (Burton’s) friends drove up in a car, and the appellant and the other Mexican fled. One attempted to carry with him the sack of tequila. Part of the Mexicans were arrested that night, and the appellant was arrested the next day. It was not the intention of the witness to buy the liquid to drink, but his purpose was .to implicate and apprehend violators of the laws prohibiting the liquor traffic.

There was no error in refusing to instruct the jury upon a verdict of not guilty.

A witness, who had been a bartender for a number of years and was able to identify intoxicating liquors of various types, testified that a part of the liquor in question was “aguardiente” and that part of it was tequila. There was no error in receiving this testimony. , See Cathey v. State (Tex. Cr. App.) 252 S. W. 534.

There being evidence that the Mexican Emilio Jaso and the appellant were acting together in the possession of the liquor in question for the purpose of sale, the receipt of that part of the testimony detailed by the witness Burton which related to a conversation with Emilio in the absence of the appellant was properly received as one of the acts or declarations of the eoconspirator in furtherance. of the common design. Branch’s Ann. Tex. P. C. § 694.

The testimony that the appellant had previously been convicted of the offense of unlawfully selling intoxicating liquor was properly received as bearing upon his credibility as a witness, he having testified in his own behalf to an alibi.

After the jury had retired, they announced their inability to agree touching the testimony of the witness Burton and ashed for its reproduction. The court stenographer was called and made an effort to reproduce it. He was ill and his reading was unintelligible, and the jury, after retiring, expressed in writing their inability to understand the reporter’s reading of his notes, whereupon the court permitted the witness Burton to appear and rehearse his testimony as previously given in the presence of appellant and the court. We understand this practice to be permissible and discern in the present case no abuse of the rule. See Lorance v. State, 37 Tex. Or. R. 453, 36 S. W. 93.

The judgment is affirmed. 
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