
    SMITH v. STATE.
    (No. 4714.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    1. Intoxicating Liquors <§=>236(11) — Offenses — Evidence—Sufficiency.
    In a prosecution for selling intoxicating liquor in prohibition territory, evidence held sufficient to sustain a conviction.
    2. Criminal Law <§=5200(4) — Foemer “Jeop-ABDY.”
    That accused was convicted in the United States District Court for selling liquor without a license does not amount to former “jeopardy” barring a prosecution in the state court for pursuing the business of selling intoxicating liquor in prohibition territory.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Jeopardy.]
    3. Criminal Law <§=5200(4) — Foemeb “Jeopardy.”
    That accused was convicted of individual, unlawful sales of intoxicating liquors in prohibition territory does not bar prosecution for pursuing the business of selling such liquors in such territory, and individual sales may be shown to establish the latter charge.
    4. Criminal Law ®=»728(5) — Trial—Argument of Prosecutor.
    Where, a bill of exceptions complaining that the prosecutor applied to accused who was charged with pursuing the business of selling intoxicating liquor in prohibition territory, the term “bootlegger,” as qualified by the court, stated that, had accused excepted to the remark and asked the court to so instruct, the court would have charged the jury to disregard the remark, and that the manner of the prosecutor was not inflammatory, the statement cannot be held erroneous, especially as the certificate of the judge showed that it did not in the least injure accused.
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Jock Smith, was convicted of'pursuing the occupation or business of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   ■ PRENDERGAST, J.

This is an appeal from a conviction for pursuing the occupation or business of selling intoxicating liquor in prohibition territory.

The testimony showed that prohibition had been duly in force in Polk county for a long time before this prosecution began, and was so in force when this offense was alleged and proven. The testimony also was clearly sufficient to show that appellant for some time before the offense was alleged herein had 'received from the express company frequent and large shipments of intoxicating liquor; that, in addition, he himself had gone off on the train and procured and brought back, and that he had sent others who procured for him and brought back to him quantities of intoxicating liquors. The testimony also showed that appellant had not only made the two respective sales of liquor to the person named in the indictment at the time alleged therein, but that at about that time he had made at least one other sale, if not two, and that before that he had also made another. sale. In other words, the proof was amply sufficient in every way to show appellant’s guilt as alleged in the indictment against him.

Appellant pleaded former jeopardy. His allegations in this plea were, in substance, that he had been convicted in the United States District Court at Houston for selling liquor without paying a license therefor, and that at the January term of the county court of Polk county he was duly and legally tried in two cases for making a distinct illegal sale of intoxicating liquor to T. H. Hicks, which sales were alleged to have been made by him in this indictment to said Hicks.

The trial judge correctly held that the offense alleged in this case was neither of the offenses alleged in the cases set up by appellant in his plea of former jeopardy. In addition to the plea itself showing that neither of said offenses alleged was the same as the offense alleged in this case, the court permitted the testimony to be introduced before him, the jury being taken, out, which clearly showed that they were not the same. As to the cases in the county court the proof showed that they were charges against appellant for making an individual sale of intoxicating liquor to said Tom Plicks. It is settled against appellant that prosecution and conviction in such instances is not the same offense as pursuing the business or occupation of selling in prohibition territory, and that even those individual sales can be alleged and proven as a basis for the necessary two sales in this offense. Wilson v. State, 69 Tex. Cr. R. 568, 154 S. W. 571; Robinson v. State, 66 Tex. Cr. R. 392, 147 S. W. 245; and other cases.

Appellant presented a bill of exceptions to the judge complaining that the” district attorney, in his argument, had referred to the appellant as a bootlegger in an inflammatory manner, to which he excepted. Judge High-tower said of this bill:

“I do not think this bill is entirely correct. I remember that Mr.' Hill did apply the term ‘bootlegger’ in speaking of the defendant, and counsel excepted to the remark, but that was all. I don’t think the court was asked by counsel to instruct the jury to not consider the remark. If he had so asked the court to instruct the jury, I did not hear the request. If I had heard such request, I would most certainly have told Mr. Hill that he must stick to the facts in the case, and not apply epithets to the defendant, that such conduct was improper, and should have told the jurv not to consider such remarks by counsel. I do not think the manner of Mr. James E. Hill [company attorney] was inflammatory in the least. He is always animated and vigorous in his speeches, but not in any sense ‘inflammatory.’ He is always very fair and just in argument, and calling the defendant ‘bootlegger’ could not possibly have injured the defendant.”

This matter shows no error.

The judgment is affirmed. 
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