
    LUMAN v. STATE.
    (No. 9274.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Granted Dec. 2, 1925.)
    1. Criminal law <§=>1091 (4) — Bill of exceptions held insufficient.
    Bill of exceptions, complaining of court’s action in permitting state witness to testify as to ingredients of Jamaica ginger and percentage of alcohol therein, which did not state or show that witness was not talking about same ibottle or contents sole} by defendant to witness, held, insufficient.
    2. Witnesses <@=>337(5) — Evidence held admissible to impeach defendant.
    Permitting state to ask defendant, as witness, on cross-examination relative to indictments against him and his answer thereto, that he understood there were four, all on the same thing, held, without error, if it had reference to instant charge; evidence being admissible to impeach.
    3. Criminal law <&=695(5) — Objection to evidence held not to raise question of material error.'
    Where objection to question to defendant as witness, relative to indictment pending against him, was that there were no indictments, and court stated testimony would be limited to affect credibility, objection to evidence did not raise question of error, since state could ask or prove by him orally as to charges pending against him.
    4. Criminal law <§=>l 159(3) — Findings of jury on controverted issues not disturbed.
    The Court of Criminal Appeals is not authorized to interfere with findings of jury on controverted issues which were supported by testimony.
    5. Criminal law <§=>459i — Failure to permit defendant to testify that he considered alleged intoxicating liquor to he an extract held without error.
    It -sfras not error to refuse to permit defendant to testify that he considered what was alleged to have been sold by him to state witness as an extract; it not being shown that he was an expert nor authorized to state opinion as tp ingredients thereof, record showing that he testified as to having sold beverage for medicinal purpose. •
    On Motion for Rehearing.
    6. Intoxicating liquors <§=>236(11) — Evidence held insufficient to warrant conviction of sale of intoxicating liquors and medicated bitters.
    In prosecution for sale of intoxicating liquor and sale of medicated bitters, capable of producing intoxication, evidence held, insufficient to show that sale was made for beverage purpose, and insufficient to warrant conviction.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County ; Chas. L. Brachfield, Judge.
    Wess Luman was convicted of the sale of intoxicating liquor and the sale of medicated bitters capable of producing intoxication, and he appeals.
    Reversed and remanded.
    D. R. Taylor and J. 3?. Anderson, both of Center, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s' Atty., both of Austin, for the State.
   BAKER, J.

The appellant was tried and convicted in the district court of Shelby county upon an indictment charging him with the sale of intoxicating liquor in one count and the sale of medicated bitters capable of-producing intoxication in another count and his punishment assessed at one year’s confinement in the penitentiary.

Briefly stated, the record discloses that the appellant was engaged in selling patented medicine and other articles of merchandise, and on the date alleged in the indictment sold to one Leo Polly a bottle of “jake” or Jamaica ginger, and that “jake” or Jamaica ginger consisted of about 90 per cent, alcohol since the Dean Law and about one-half of that amount prior thereto, and that same was intoxicating. The above in effect was the testimony of the state, while the defendant contended that he sold same, not as a beverage, but for medicinal purposes.

In bijl of exception No. 2, complaint is urged against the action of the court in permitting the state’s witness Stripling, a pharmacist, to testify as to the ingredients of Jamaica ginger or “jake” and the percentage of alcohol therein, and it is stated in the objection that it is not shown to be the same bottle, and the contents sold by the appellant to the witness Polly, but said bill does not state nor show, that the witness was not talking about the same bottle and the contents thereof. This court has repeatedly held that a bill in this shape is insufficient. In Branch’s Ann. P. O. § 209, it is stated:

“A mere statement of a ground of objection in a bill of exceptions is not a certificate of the judge that the facts whieii formed the basis of the objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as would verify the truth of his objection”—citing Mims v. State, 68 Tex. Cr. R. 432, 103 S. W. 321, and many other authorities.

We also,call attention to the case of Cavanar v. State, 99 Tex. Cr. R. 446, 269 S. W. 1053. Under the authorities, supra, we are unauthorized to consider said objections urged to said evidence.

In bill of exception No., 6, complaint is made to the action of the court in permitting the state to ask the defendant while upon the witness stand, upon cross-examination relative to four or five indictments pending against him and his answer thereto: “I understand they have got four in this grand jury, all on the same thing.” This bill is not very definite and certain, but, if the testimony had reference to the same charge for which the defendant was being tried,, it was clearly admissible for impeachment purposes. However, the court, in qualifying said bill, states that the only objection made to this testimony was “that there were no prior indictments, and that the court stated the testimony would be limited to affecting the credibility of the witness.” This objection to said evidence did not raise the question of any material error, because it has been repeatedly held that you can ask the defendant and prove by him orally as to charges pending against him. At any rate, the bill discloses no error in the shape it is in.

Bill No. 8 complains of the action of the court, in that it raises the question, as we understand it, of the insufficiency of the testimony, because it is contended that it is not shown that “jake” was intoxicating, and that same was sold as a beverage. This was the issue made by the defendant in the case and the state’s testimony shows that it was intoxicating, and, the state’s theory being that it was sold for the purpose of a beverage, and the defendant’s theory being that it was sold for medicinal purposes, these issues were properly submitted to the jury, and their findings thereon, in our opinion, were supported by the testimony, and upon controverted issues we are unauthorized to interfere with the action of the jury.

Complaint is urged in bill of exception No. 9 to> the failure of the court to permit the defendant to testify that he considered what is alleged to have been sold by him to Polly as an extract. We fail to observe any error in the action of the court in this particular, because it is not shown in said bill that said appellant was an expert, and that he was not authorized to inject any opinion to the jury as to what he considered the ingredients were in question, and the record shows that he testified fully as to having sold the beverage in controversy for medicinal purposes, and not "as a beverage. Under this phase of the case we fail to see any possible error complained of.

We have carefully examined the entire record and have reached the conclusion that the record fails to disclose any error committed by the trial court, and this case should be affirmed, and it is accordingly so ordered.

On Motion for Rehearing.

Appellant, in his motion for rehearing, strenuously insists that we were in error in our original opinion in holding that the evidence warranted a conviction in this case. We have again examined' the statement of facts, and, as the same is short, have decided to set out the main portion of it as relied upon by the state and defendant on this issue.

The state’s witness Polly testified to purchasing the alleged intoxicant in question as follows:

“Yes; I just went by and got me a bottle of ‘jake’ or Jamaica ginger. * * * I bought a bottle of ‘jake’ that resembled that [referring to the sale by the defendant to him].. * * * As to what I bought that Bottle of stuff for, I will state that I felt bad and went by there and got it; I didn’t get it to get a drink. I got it for medicinal purposes; I got it for a bad cold. * * * i g0t it for medicinal purposes; I didn’t get it to drink right down. * * * I did not buy it for a stimulant. * * * I did not tell Wess Luman, the defendant, what I was buying it for. I did not tell him I was sick.”

The defendant, after testifying to selling patent medicines in connection with, his grocery' business, testified as follows:

“I sold to one Leo Polly one bottle of what is commonly called ‘jake’ or Jamaica ginger. * * * I do not remember what statement he made in connection with it, but I let him have it for that purpose. As to whether he stated to me that he had any malady, I will state that he had prior to this time. He said he had stomach trouble, and complained of it at various times. * * * At the particular time that he bought it, I don’t know that he made any statement" at all. As to whether he told me before that time that he was sick, I will state that I believe he might have said something about feeling bad or something, and wanted a bottle of it. * * * I sell it for medicinal purposes, and cannot tell what it is good for.' * * It says- it is good for Cramps, and I don’t remember what all it does say it is good for. * * * I will state, in that particular instance, as to what pfjrticular use I sold it to Mm for, I suppose he wanted it for his stomach. * * * He did not tell me at that time what he was buying it for; not at that particular time, but he had complained .of stomach trouble; he told me that was what he was using it for. * * * I was particular not to sell it to a man that I thought wanted it for beverage purposes, but if a man wanted a bottle for medical purposes I sold it.”

This was practically all of the evidence introduced by the state and the defendant on the point relative to the sale.

After a careful examination of the entire record relative to this issue, we have come to the conclusion that the evidence fails to show with that degree of certainty required by law that the sale in question was made for beverage purposes, and that the evidence is insufficient to warrant a conviction. The motion for rehearing is granted, the judgment of affirmance set aside, and the judgment of the trial court is reversed and remanded.

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. 
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