
    BLACKBURN v. STATE.
    (No. 8971.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.)
    1. Criminal law <&wkey;556 — State not bound by Its own proof that prosecuting witness, when arrested, stated that he had found liquor'in question.
    In prosecution for illegal sale of intoxicating liquor and illegal possession of such liquors for purpose of sale, state was not bound by its own proof that prosecuting witness, when arrested, told officers that he had found whisky in question, in view of fact that such testimony was elicited after witness had 'testified directly that he bought whisky from accused.
    2. Criminal law <®=»11701/2 (2) — Permitting state to ask witness as to condition of two persons at accused’s house, during search for intoxicating liquors, held not error. '
    In prosecution for illegal possession and illegal sale of intoxicating liquor, permitting district attorney to ask state’s witness as to condition of two men at accused’s house, while search was being made, to which witness replied that, if parties were drunk or drinking, he could not tell it, was not error.
    
      3. Witnesses <&wkey;396(l) — Permitting state to prove that reason prosecuting witness told officers he had found whisky was because he did not want to tell where he got it held not error.
    In prosecution for illegal possession and illegal -sale of intoxicating liquor, permitting state to prove by prosecuting witness that the reason why he told officers that he found whis-ky in question was because he did not want to tell where he got it was not error.
    4. Criminal law <&wkey;7l9(3)—Statement by district attorney in argument to jury that he could tell why person made different statements, if permitted to tell all facts, held not error.
    In prosecution for illegal possession and sale of intoxicating liquor, statement of district attorney in argument to jury that he could tell why negro made different statements “if they would permit me to tell the facts,” was not error.
    5. Intoxicating liquors <©=>236(II)—Evidence held sufficient to sustain conviction of illegal sale of intoxicating liquor.
    In prosecution for illegal possession and illegal sale of intoxicating liquors, evidence held sufficient to sustain conviction for illegal sale.
    Commissioner’s Decision.
    Appeal .from District Court, Palo Pinto County; J. R. Keith, Judge.
    Ed Blackburn was convicted of illegal sale of intoxicating liquor, and he appeals.
    Affirmed.
    Ritchie & Ranspot, of Mineral Wells, for appellant,
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   ¿AÉER, j.

Appellant was indicted in Pa-ip Pinto county, charged with unlawfully sell-: xng ’iiltokicating liquors and with having in’ his possession intoxicating liquors for the •purpose op sale,- and was- convicted upon the-alleged sale, and his punishment assessed, at one "year- in the penitentiary.

Appellant objects to the action of the -court in refusing to instruct a verdict in the case, and raises the same point in other ways, because the state proved by the prosecuting witness Simmons that, when he was arrested, he told the. officers that he found the whisky in question. Defendant contended that the state was bound by this explanation, unless it could prove same to be false. It appears that this testimony was elicited by the state- after the witness had testified di- ’ reetly and fully to having bought the whisky in question from the defendant. The record discloses that a deputy sheriff saw the prosecuting witness Simmons with the whis-ky coming from the direction of the defendant’s house, and immediately pursued him, and when the witness observed that he was being pursued by the officer he began to pour the whisky out, and then told the officer that he had found it and was going to make hair tonic of it. Immediately after taking the whisky from the said witness, the officers made a search of the defendant’s house and found other whisky in his possession, and while searching the house caught the defendant in the act of pouring out some of the whisky that he had in his possession. The defendant failed to testify in the case.

We cannot agree with the contention, urged by the appellant in this case, that the state was precluded under those facts from insisting upon and obtaining a conviction, because said witness merely made a contradictory statement when found with the whis-ky, to that which he testified to upon the trial. These matters were left entirely to the jury, even if the state’s witness had been successfully impeached for* truth and veracity, and not a matter that the court was authorized to exclude from the jury.

Bill of exception No. 3 complains of the action of the court in permitting the district attorney to ask the state’s witness as to what was the condition of Cook and Huffacker, who were at the house of the defendant while the search was being made by the officers, because same was an insinuation that said parties were drunk or drinking. The witness replied, in substance, that if the parties were drunk or drinking he could not tell it or that he did not know. There is no merit in this contention.

There is also complaint urged to the action of the court in permitting the state to prove by the witness Simmons that the reason why he told the deputy sheriff and other officers that he found the whisky in question was because he did- not want to tell where he got it. We are unable to see any error in this particular that could harm the appellant.

Appellant also complains of the statement of the district attorney in his argument to the jury to the effect that “I could tell you why the negro' made the different statements, if they would permit me to tell the facts.” The above, as-shown by said bill, covers all the statement complained of, and we are of the opinion that there is no error in this'particular.

It is also urged that the evidence is insufficient to warrant a conviction. The witness Simmons for the state testified to a direct sale, and the undisputed testimony shows that, at the time he was seen with the whis-ky, he was coming-from the direction of the house of the appellant, and the officers immediately thereupon searched said house and found whisky in it, with the defendant trying to dispose of same by pouring it out. We think this -is ample testimony to warrant a conviction in this case.

After a careful examination of the record. we are unable to find any error committed. therein, and accordingly affirm the judgment of the trial court.

PER CURIAM. 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. 
      d&wkey;Eor otter cases see same topic and KEY-NUMBER In all Key-Numbered Digests-and Indexes
     