
    WEBB v. STATE.
    (No. 9565.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    1. Criminal law <&wkey;ll2¡0(,8) — Bill of exception, complaining of reception of testimony, held defective.
    Bill of exception, complaining of reception of testimony as to matters stated in objections to be hearsay acts and declarations in the absence of accused, but failing to state facts showing that such declarations and acts complained of were made in absence of accused, is defective, and cannot be considered on appeal.
    2. Criminal law <&wkey;369(6), 1169(11) — In prosecution for sale of liquor, reception of testimony of possession of mash held error, requiring reversal.
    In a prosecution for unlawful sale of intoxicating liquor, reception of testimony showing mash was'found on premises .of accused, tending" to show that he had either been making whisky or possessed! mash for that purpose, held error, and prejudicial.
    
      3. Intoxicating liquors <&wkey;>239(2) — Evidence held to justify instruction authorizing acquittal upon presence of reasonable doubt whether sale was made.
    In a prosecution for joint sale of intoxicating liquor to two persons, evidence held to justify instruction authorizing acquittal, if jury had reasonable doubt whether the sale was made, as alleged, or to only one of such parties.
    Commissioners’ Decision.
    Appeal from District Court, Franklin County ;' R. T. Wilkinson, Judge.
    A. L. Webb was convicted of unlawful sale of intoxicating liquors, and be appeals.
    Reversed and remanded.
    Wilkinson & Wilkinson, of Mt. Vernon, and J. A. Ward, of Mt. Pleasant, 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 Franklin county of the offense of unlawfully selling intoxicating liquor, and bis punishment assessed at one year in the penitentiary. The indictment charges that the appellant jointly sold the whisky in question to Burton Avery and Frank Weatherford.

Bills of exceptions 1 and "5 complain of the action of the court in permitting witnesses Campbell and Walker for the state to testify to matters stated in the objections to said bills to be hearsay acts and declarations in the absence of the appellant. These bills are defective, in that they do not of themselves state facts to show that said conversations and acts complained of were in the absence of appellant, and we are unable to consider same. There was evidence introduced on the part of the state tending to show that there was some mash found on the premises of the appellant, and tending to show that he had either been making whisky or possessed mash and equipment for -that purpose, to all of which testimony appellant properly excepted on the grounds that it was an attempt to show extraneous offenses, and was prejudicial to the appellant in this case. We are of the opinion that appellant’s contention is correct, and that the action of the court in admitting said testimony in this instance will require a reversal of this ease. The indictment charged only a sale as above stated and shown, and the state’s witness Weatherford, one of the alleged purchasers, and the only witness introduced by the state on the question of sale, testified positively to the sale at the time and place alleged in the indictment. This case does not come within any of the exceptions to the rule which would admit testimony of any extraneous crimes or offenses, and we think the action of the court in admitting the testimony was clearly erroneous. Berry v. State, 95 Tex.' Or. R. 661, 255 S. W. 739; Ross v. State, 93 Tex. Cr. R. 61, 245 S. W. 680; Burton v. State, 93 Tex. Cr. R. 335, 247 S. W. 869; Branch Ann. Renal Code, § 166, p. 99.

Appellant complains of the action of the court in failing to charge the jury that, if they had a reasonable doubt as to whether the sale in question was made to Frank Weatherford and Burton Avery, or was made to only one of said parties, to acquit the defendant. The evidence in this ease on this issue is very close, and we are of the opinion that upon another trial, if the evidence is the same, that the court should submit the issue raised by the appellant in the said special charges 1 and 2.

Complaint is made to the argument of the district attorney to the jury, but, in view of another trial of this case, we deem it unnecessary to discuss it at this time.

For the reasons above stated, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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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