
    BROWN v. STATE.
    (No. 6866.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.
    Rehearing Denied June 23, 1922.)
    1. Indictment and information <&wkey;203—Where one of two counts deficient, general verdict refers to good count.
    Where an indictment charged in one count the unlawful transportation of liquor, and in the other the unlawful possession, which count was insufficient, a general verdict of guilty referred to the good count.
    2. Criminal law <&wkey;717—Reference to fact that Suspended Sentence Law would have been inoperative for defendant, if trial had a few days later, improper.
    Where, in a criminal prosecution, defendant filed a plea required by Yernon’s Ann. Code Cr. Proc. 1916, art. 865b, embodying the Suspended Sentence Daw, argument by state’s counsel, referring to a recent "amendment of the law depriving those over 25 years of age of its benefit, and stating to the jury in substance that this amendment would become effective in a few days, and if the trial had taken place a little later defendant’s plea for suspended sentence could not have been interposed, was improper.
    3. Criminal law <&wkey;722 (3)—Reference to writings in defendant’s purse, thrown away in flight, improper where not based on evidence.
    In an intoxicating liquor prosecution, where it was shown that defendant threw away his pocketbook while being pursued by officers, and after he was released from jail repossessed it, statement by state’s counsel in argument that defendant did not want the officers to see the pocketbook because it contained writing that would identify him with other bootleggers, etc., there being no evidence of writing in the pocketbook, was improper.
    4. Criminal law <&wkey;861—That juror tasted liquor in evidence, and said it was whisky, held improper.
    In an intoxicating liquor prosecution, where the glass of liquid purporting to have come from the liquor seized was exhibited and tasted by one of the jurors, and in their deliberations such juror told the others that the liquid was whisky, the use made of the fact that it was tasted was violative of Vernon’s Ann. Code Or. Proc. 1016, art. 837, subd. 7, forbidding the jury from hearing new evidence in retirement.
    5. Criminal law @=5982 — Suspended sentence law did not change rules of evidepee as to general reputation.
    In an .intoxicating liquor prosecution, where defendant had filed a plea embodying the Suspended Sentence Raw, and testified that he had never been convicted of a felony in this or any other state, which was not controverted, and also testified to the effect that he. bore a good general reputation as a law-abiding citizen, the rejection of evidence that defendant had never been charged with any other offense was proper, there being nothing in Vernon’s Ann.' Code Cr. Proc. 1916, art. 865c, which changed the rule of evidence, touching the manner in which general reputation was proved.
    6. Criminal law @=982 — Witnesses @=274(2) —Specific offenses available on cross-examination to measure weight of witness’ testimony, but not pertinent to show reputation, on application for suspended sentence.
    Where defendant filed a plea under the suspended sentence law, specific acts became available upon cross-examination for the limited purpose of measuring the weight of the character witness’ testimony, but were not pertinent as original testimony upon the issue of reputation.
    7. Searches and seizures @=7 — Unreasonable searches and seizures not involved.
    Where, at the time defendant was arrested for unlawful transportation and possession of intoxicating liquor, there was whisky on the ground in such proximity to the car as justified his arrest on the theory that a felony had been committed in the presence of the officers by bringing a keg and jars of whisky to the point at which the arrest took place, no search was required to determine that there was' liquid in the car and on the ground at the car, and the constitutional inhibition against unreasonable seizures and searches was not involved.
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    O. J. Brown was convicted of unlawful transportation of liquor, and he appeals.
    Reversed and remanded.
    Baker & Weatherred and Critz & Woodward, all of Coleman, for appellant.
    R, G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquors.

There are two counts, one charging the unlawful transportation and one the unlawful possession of intoxicating liquors. That charging the unlawful possession was like that before the ^ourt in the case of Francis v. State (Tex. Cr. App.) 235 S. W. 580, and, for the reasons there given, is Insufficient. The verdict being general, it may be referred to the other count. Pitner v. State, 37 Tex. Cr. R. 272, 39 S. W. 662; Dent v. State, 43 Tex. Cr. R. 126, 65 S. W. 627; Rozier v. State (Tex. Cr. App.) 234 S. W. 666; Epps v. State, recently decided (Tex. Cr. App.) 238 S. W. 652.

We deem a statement of the evidence in detail unnecessary. Prom the state’s standpoint, the facts were that the peace officers, suspecting the possession of intoxicating liquors by the appellant for unlawful purposes, followed his automobile and sought to search it. The privilege of search was refused by the appellant in the absence of a search warrant, but he consented to go to the county seat in order that a warrant might be obtained. En route, he turned from the main road, was followed by the officers in their car, and finally arrested. At the time of his arrest he had stopped his car. In it was a glass jar containing some liquid, which the officers claimed to be whisky, but which the appellant claimed was ice water. Near the appellant’s ear there was a wagon sheet on the ground, and upon it a 10-gallon keg filled with whisky, and some broken jars from which whisky had been spilled upon the ground, and one of the jars contained whisky. . It was insisted by the appellant that he fled from the officers because they shot at him, and because he thought they were robbers; that he had no whisky in his ear; that in his flight he ran against a keg and other containers, and this accounts for the broken jars upon the ground near his car; that the collision injured his car, and when he stopped to repair it he was overtaken by the officers. In his flight he threw away his purse; which he afterwards recovered. He stated that he had $40, or more in it.

Appellant filed a plea required by article 865b, Vernon’s Ann. Code Cr. Proc. 1916, embodying the Suspended Sentence Daw. Adverting to that phase of the case in his argument, the state’s counsel referred to a recent amendment of the Suspended Sentence Law depriving, those over 25 years of age of its benefit, and told the jury, in substance, that this law would become effective in a few days, and if the trial had taken place a little later appellant’s plea for a suspended sentence could not have been interposed at all. The argument was improper. A change in the law could have no bearing upon an offense committed before its enactment. The argument was harmful because it conveyed to the jury the idea that a man of appellant’s age was not, in the opinion of the Legislature, the proper subject for the operation of the Suspended Sentence Law. Appellant’s objection to the argument should have been sustained, and the court should have endeavored to repair the injury by instructing the jury to disregard it upon appellant’s request, which was duly made.

Referring to the fact that appellant threw away his pocketbook, and after he was released from jail repossessed it, counsel for the state told the jury in substance that:

“You know the reason he did not want the officers to see that pocketbook, because you know he had writing in that pocketbook that would identify him with other bootleggers, and identify him; I bet you if he had any money in that purse it was money he got for selling whisky.”

It is made clear by the bill that there was no evidence of writing in the pocketbook. The argument was not a proper one, and the court should not have sanctioned it. Objection was urged to it, and the request for an instruction to disregard it was refused.

A glass of liquid purporting to have come from the 10-gallon keg was exhibited and tasted by at least one of the jurymen, over the appellant’s objection. In their deliberations this juryman told his fellows that the liquid was whisky. The jury should not have been permitted to taste the liquor. Parker v. State (Tex. Cr. App.) 75 S. W. 30; Dane v. State, 36 Tex. Cr. R. 87, 35 S. W. 661. The use made of the fact that it was tasted was of a prejudicial nature, and vio-lative of the statute forbidding the jury from hearing new evidence in retirement. Code Cr. Proc. art. 837, subd. 7.

Complaint is made of the rejection by the court of evidence that the appellant had never been charged with any other offense. He testified that he had never been convicted of a felony in this or any other state. This was not controverted. He also introduced testimony to the effect that he bore a good general reputation as a law-abiding man. He assumes the position that the excluded testimony was admissible by reason of his application for a suspended sentence. In that law this is found:

“The court shall permit testimony and submit the question as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant has ever before been convicted of a felony; such testimony shall be heard and such question submitted only upon the request in writing by the defendant.” Code Cr. Proc. art. 865c.

There is nothing in the statute which, in our opinion, changed the rules of evidence touching the manner in which the general reputation should be proved. Williamson v. State, 74 Tex. Cr. R. 290, 167 S. W. 360; Baker v. State, 87 Tex. Cr. R. 309, 221 S. W. 607; Wagley v. State, 87 Tex. Cr. R. 504. 224 S. W. 687: Specific acts become available upon cross-examination for the limited purpose of measuring the weight of the witnesses’ testimony, but are not pertinent as original testimony upon the issue of reputation. Howard v. State, 37 Tex. Cr. R. 498, 36 S. W. 475, 66 Am. St. Rep. 812; Branch’s Ann. Tex. Penal Code, p. 617; Underhill on Crim. Evidence, § 325; 12 Cyc. of Law & Proc. p. 416, note 53; Holsey v. State, 24 Tex. App. 35, 5 S. W. 523. A general inquiry such as that in question, especially when it has already been developed that appellant had not been convicted of a felony, tended to elicit evidence which was not competent upon the issue of reputation as original testimony. Inquiry should be confined to the knowledge of the witness of the general reputation. His means of knowledge may be tested by cross-examination drawing his attention to specific acts which are pertinent. This, we think, was the rule at the time the Suspended Sentence Law was enacted, and is the rule that should still be observed. We are not unmindful of the fact that there may be specific instances in which there has been a departure from this rule. These cases are. to be treated as exceptions to rather than as modifications of the rule. There was no error in sustaining objection to the question propounded.

We think the constitutional inhibition against unreasonable seizures and searches is not involved. At the time of the arrest there was whisky on the ground in such proximity to the car as justified the arrest upon the theory that a felony had been committed in the presence of the officers by bringing the keg and jars of whisky to the point at which the arrest took place. There was no search required to determine that there was liquid in the car and on the ground at the car. See State v. Quinn, 111 S. C. 174, 97 S. E. 62, 3 A. L. R. 1500; State v.McCann, 59 Me. 383; State v. Le Clair, 86 Me. 522, 30 Atl. 7; State v. Bradley, 96 Me. 121, 51 Atl. 816.

The other questions presented have been examined. Some of them refer to arguments which we do not approve, but which we assume will not occur upon another trial. We find nothing in the other matters complained of worthy of discussion.

For the reasons indicated, the judgment is reversed, and the cause remanded. 
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     