Smith v. State

We have again carefully gone over this record, and have concluded that we were in error in not holding it reversible error for the court to instruct the jury as follows: "I have admitted evidence of another sale by the defendant to L. B. Sheffer, alleged to have been made by the defendant, of intoxicating liquor at a different time other than the sale alleged in this indictment. With reference to said testimony I instruct you as follows: First it is for you to determine whether such testimony is true, and second if you find the same is true, then it is admitted for your consideration and to be given such weight if any, as you may deem it entitled to in determining whether or not the defendant sold to L. B. Sheffer spirituous liquor capable of producing intoxication as charged in this indictment, and you must not consider it for any other purpose."

The only effect of a charge like this would be to induce the jury to consider proof before them that on another occasion beside the one charged in the indictment, and under circumstances which made it a wholly separate and disconnected transaction, appellant had sold intoxicating liquor, as aiding them in solving the question as to whether he sold liquor at the time and place charged herein. There is no question under the authorities but that proof of the commission of a separate and disconnected though similar offense, at another time, is not admissible for the purpose of enabling the jury to determine the guilt or innocence of the accused of the particular act charged against him. Long v. State,39 Tex. Crim. 537, 47 S.W. 363; Ross v. State, 93 Tex. Crim. 61,245 S.W. 680; Lanham v. State, 99 Tex. Crim. 410,269 S.W. 799. In the latter case we said: "Manifestly, to prove that appellant had manufactured intoxicating liquor at a number of other times and places than that charged in the indictment would strongly support the proposition in the minds of the jury that he was generally a manufacturer of such liquor. * * * Where there is danger that testimony of another transaction in evidence than the one relied on might cause conviction, or might be given unwarranted weight by the jury as tending to prove the main fact or transaction, * * * the jury [should be] instructed not to consider same as affecting or showing the guilt of the accused in the particular transaction on trial," citing authorities.

In the instant case proof was admitted of a separate and distinct sale of liquor by appellant. It was admitted without objection, hence the error of its admission would be of no avail. However, in the charge the court instructed the jury regarding this testimony, as above set out, and the charge was excepted to. We think the charge erroneous, and have concluded the error of sufficient gravity to call for a reversal of the case.

The motion for rehearing will be granted, the judgment of affirmance set aside, and the judgment of the trial court reversed and the cause remanded.

Reversed and remanded.