
    FARLEY v. STATE.
    (No. 7581.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.)
    1. Criminal law <&wkey;400 (2) — Evidence of conviction of state’s witness properly excluded as not the best evidence.
    In a prosecution for selling intoxicating liquor, it was not error to refuse to permit defendant’s counsel, testing a state’s witness as to his competency, to ask if he had not been convicted in a federal court for- illegally transporting intoxicating liquor, to which charge he had pleaded guilty; such testimony not being the best evidence.
    2. Criminal law <&wkey;338(6)— Refusal to permit state’s witness to say whether his brother had also been indicted proper where brother not used as a witness.
    In a prosecution for selling intoxicating liquor, it was not error to refuse to allow the principal state witness to answer a question as to whether his brother had not also been indicted; the brother not having been used as a witness.
    3. Criminal law &wkey;s459 — Evidence of witnesses who drank small quantity of liquor that it was intoxicating held admissible.
    In prosecution for selling intoxicating liquor, testimony of several witnesses who drank a small quantity of the liquor and who testified that the liquor was intoxicating held admissible.
    4. Criminal law &wkey;51169(12) — Testimony as to flight of defendant held not prejudicial error.
    In a prosecution for selling intoxicating liquor, evidence of the efforts of officers to execute upon defendant a capias, and that he had moved from Texas to Oklahoma, but had returned and made bond, which evidence was introduced as showing flight, held not prejudicial error.
    5. Criminal law (&wkey;72|i/2(2) — Remarks of
    prosecuting attorney as to defendant’s failure to make his wife a witness held not erroneous as not based on evidence.
    In a prosecution for selling intoxicating liquor, remarks of the state’s attorney in argument as to why defendant did not make his wife a witness held not to disclose error on the ground that they were not based on the evidence.
    Appeal from Criminal District Court, Williamson County; James B. Hamilton, Judge.
    Jess Farley was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    W. C. Wofford, of Taylor, and Wilcox & Graves, of Georgetown, for appellant.
    B. G. Storey, Asst. Atty. Gen., for the State.
   IATTIMOBE, J.

Appellant was convicted in the criminal district court of Williamson county of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The testimony for the state sufficiently shows that about the date alleged in the indictment appellant sold quite a quantity of whisky to the principal state witness. In his brief appellant first presents his objection to the action of the trial court in not allowing him to ask a state witness if he had not been recently convicted in the federal court of illegally selling intoxicating liquor. As we understand the bill of exceptions complaining of this matter, when the state offered this witness appellant desired the -privilege of testing him as to his competency, and, the jury being retired, appellant’s counsel asked witness if he had not been convicted in the federal court at Austin for illegally transporting intoxicating liquor, to which charge he pleaded guilty, the state objecting upon the ground that there was better evidence of the facts sought, and this objection was sustained, The ruling of the learned trial court seems entirely in harmony with the. decisions. The rule applicable in a case -of this kind is plain, and the record evidence, should have been resotted to.

No error. appears • in bill of exceptions No. 2 wherein complaint is made of the refusal of the trial court to allow the principal state witness to answer the question as to whether his brother Jesse had not also been indicted. The state objected upon the ground that said brother had not been used as a witness, and the bill, is qualified by the learned trial court that said brother was npt used as a witness. Said bill of exceptions presents no error.

The testimony of several witnesses who drank a small quantity of the liquor alleged to have been sold by appellant, and who testified that said liquor, was intoxicating, was -admissible. We cannot appraise the weight of an objection that a witness who took a swallow or two, out of one or two jars of said liquor had not taken enough of same to enable him to form a correct estimate as to whether it was intoxicating.

Upon the hypothesis that such testimony showed flight on the part of appellant, the state offered in testimony the efforts of the officers to execute upon him a capias issued in the instant case. It is made to appear that defendant had moved' from Texas to-Oklahoma. It is'also shown that appellant returned to Texas and made bond herein. We do not think any injury to appellant was shown by the above testimony.

A vigorous attack is made upon the argument of the prosecuting attorney to the effect that defendant had not used his wife to sustain his position in regard to certain defensive matters, or used her to disprove certain criminating matters. The language of ¡said state’s attorney as set out in the bill of exceptions is as follows:

“The testimony shows he [the defendant] has a wife. Why didn’t he bring her here? Why didn’t he show by her when he was in Beeville? She is not .here. ■ I tell you his‘wife could have shown you where he was, hut she is not here. Why didn’t he bring her here?”

In stating the grounds of his objection to said argument appellant uses the following language:

“The defendant had offered, among other things, in t.he defense in this cause, that he was not residing v at Taylor, in Williamson county, during the latter part of October, and all of the month of November, 1921, but was in Bee-ville, in Bee county, Tex. It also appeared that the defendant’s wife was not present with him upon the trial of this cause, and her name had not been mentioned by any one previous to the closing argument of the district attorney, and the district attorney in ihis closing argument made the following statement.”

We are of opinion that this does not sufficiently show that there was no reference in testimony to the fact that appellant had a wife. It might abundantly appear from the testimony that appellant had a wife without any mention at all of her name. Furthermore, if the state’s attorney was under the belief that the testimony in the case showed that appellant had a wife, and he should refer to that fact in his argument, in language similar to that appearing above, if appellant was of the opinion that such conclusion of the state’s attorney was unwarranted by the .testimony, he might have then insisted that the state’s attorney was in error and have presented to the trial court a request for an instruction to the jury not to consider such argument. The record before us presents no request for such instruction. We regret our inability to agree with learned counsel for appellant that in this or his other contentions appears reversible error.

No error appearing, an affirmance is ordered. 
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