
    SIMMONS v. STATE.
    (No. 9857.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.)
    1. Criminal law <&wkey;814(17) — Where state’s evidence in prosecution for unlawful possession for sale was positive as to sale, refusal to instruct on circumstantial evidence was not error.
    Where state’s evidence in prosecution for unlawful possession of intoxicating liquor for sale was positive as to accused’s handling whis-ky in question and selling it, refusal to charge on circumstantial evidence was not error.
    2. Criminal law &wkey;>l 184 —Where verdict and judgment assessed punishment at two years’ confinement, sentence stating one year will be reformed.
    Where verdict and judgment assessed punishment for unlawful possession of intoxicating liquor for sale at two years’ confinement, a clerical error in sentence making confinement one year will be reformed.
    Commissioners’ Decision.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    H. C. Simmons was convicted of unlawfully possessing intoxicating liquor for sale, and he appeals.
    Affirmed.
    N. A. Gentry, Sr., of Tyler, for appellant.
    Sam. D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the district court of Smith county for the offense of unlawfully possessing intoxicating liquor for sale, and his punishment assessed at two years’ confinement in the penitentiary.

Briefly stated, the facts show that there was a poker game going on in the room occupied by appellant and one Davis, in which a half a dozen or more parties, including appellant and Davis, were engaged. At a late hour of the night, the room was raided by the officers, and about a quart of corn whisky was found on a table or dresser in the room, and a gallon or more in a grip under the bed. It was the contention of the state that the whisky belonged to the appellant, and that he was serving same to the parties engaged in said game, at 25 cents a drink, and that he sold to one of said parties a pint of said whisky, and delivered it in the purchaser’s room, for which he was to receive $2.50. The appellant denied the ownership of said whisky, and it was his contention, and he so testified, that he knew nothing about the whisky being in the grip or in the jar upon the table, until he found the parties there playing poker, and at the request of some of the players, he merely handed the whisky in the jar around for them to drink, and the money that wa? handed to him was not for the purpose of paying for the drinks, but to stake him in the poker game.

We find in the record five bills of exceptions, the first four of which complain of the manner of the district attorney in interrogating the witnesses, because it is contended that his questions propounded 'were not in good faith and intended solely to reflect an improper influence upon the jury and east an improper prejudice upon their minds, without any intention upon the part of the state to support such insinuations by testimony. To most of said questions said witnesses made ■answer favorable to appellant, and with the qualification of the court on said bills, as presented, we are not prepared to hold that such procedure was of sufficient importance, or calculated to influence the jury to such an extent, as would authorize a reversal in this ease.

Bill of exception No. 5 is lodged against the charge of the court, but upon examination of same we find that the court’s charge, together with the special charge requested and given, cover all issues raised by the evidence. The appellant complains because the court failed to charge on circumstantial evidence. The state’s evidence in this case was positive as to the defendant’s handling the whisky in question; that is, the whisky in the jar on the table, and the selling of same, and undér such circumstances it was not error to refuse a charge on circumstantial evidence. See Branch’s Ann. P. C. § 1874, for a collation of authorities; also, Hawkins v. State (Tex. Cr. App.) 277 S. W. 1067.

The verdict and judgment show that the appellant’s punishment was assessed at two years in the penitentiary. In the sentence of the court thereon the appellant’s punishment is adjudged at confinement for “one year.” Said error in the sentence being clerical, same is hereby reformed to read that said defendant’s punishment has been adjudged to be two years in the penitentiary, and he shall be confined in the penitentiary for a term of not less than one nor more than two years.

The said sentence so reformed, the judgment of the trial court is in all things affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals, and approved by the court. 
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