
    FENLEY v. STATE.
    No. 25295.
    Court of Criminal Appeals of Texas.
    May 16, 1951.
    No attorney, for. appellant.
    George P. Blackburn, State’s Atty., of Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful sale of liquor without a permit; -the punishment, a fine of $100 and thirty days’ confinement in jail.

Appellant was a porter at the Roosevelt Hotel in Amarillo. An agent of the Liquor Control Board purchased a half pint of whiskey from him. Appellant did not testify.

Bill of Exception No. 1 complains of the failure of the trial court to instruct a verdict of not guilty on the grounds that the state failed to prove that appellant did not have a permit to sell whiskey on the day charged in the complaint. The supervisor of the Liquor Control Board for the area was asked to examine his records and tell the jury whether the appellant had a permit on the day charged. His answer was that appellant does not have a permit. We feel that since question was specific as to the date even though the answer was in the present tense, it was in reply to the question fixing the date and was, therefore, sttfficient.

Bill of Exception No. 2 complains of the reading to the jury of a portion of the testimony of one Dudley who had testified against appellant in a former trial. We feel that appellant waived any complaint he may have had to this testimony when he made an issue of what Dudley’s testimony had been on the former trial. Since the issue was raised by appellant, the best evidence was the stenographer’s notes taken at the former trial.

Finding no reversible error, the judgment of the trial, court is affirmed.  