Luman v. State , 102 Tex. Crim. 356 ( 1925 )

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, convicted, and his punishment assessed at one year 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 ninety per cent. alcohol since the Dean Law and about one-half 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 bill 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. C. Sec. 209, it is stated:

"A mere statement or a ground of objection in a bill of exception is not a certificate of the Judge that the facts which 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, 153 S.W. 321, and many other authorities.

We also call attention to the case of Caviar v. State,269 S.W. 1053. Under the authorities, supra, we are unauthorized to consider said objection 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 was supported by the testimony and upon controvert 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 it 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.

Affirmed.

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.

ON MOTION FOR REHEARING.