Lenz v. State

BERRY, Judge. The offense is the unlawful sale of intoxicating liquor and the punishment is one year in the penitentiary. The indictment charged that the defendant sold to one Paul Blair liquor capable of producing intoxication. Appellant moved to quash the indictment because it did not charge that the liquor sold was spirituous, vinous or malt liquor. Art. 666 of the P. C. on which this prosecution was based not only penalizes the sale of spirituous, vinous or malt liquors but also of any other intoxicant whatever. Under the plain terms of the statute itself this indictment was entirely sufficient. Tucker v. State, 94 Tex. Crim. Rep. 505. By a bill of exceptions appellant objects to the court’s charge because he did not limit the testimony to the effect that there was found in an outhouse on defendant’s premises a glass jar containing corn whiskey on the day following the sale. It is appellant’s contention that the court should have told the jury that this testimony was offered for the purpose of throwing light on the alleged sale charged. The record discloses that before this testimony was introduced, the appellant took the stand and after testifying that he made no sale to Paul Blair, he also testified that he had no whiskey in his house on the *31 night of the alleged sale. It was as a circumstance rebutting this testimony of the appellant that the court permitted proof that whiskey was found on his premises the next day. Appellant himself testified that the officers found a large quantity of beer at his house the next day after the night of the alleged sale and his wife gave testimony to the same effect. Art. 658 C. C. P. provides that the defendant or his counsel shall have a reasonable time to examine the charge before it is read and that he shall present his objections thereto in writing distinctly specifying each ground of objection. We think the objection to the court’s charge as presented is without merit. The testimony as to the liquor found at appellant’s home the day after the alleged sale was not only admissible for the purpose of shedding light on the sale charged but it was clearly admissible as tending to impeach the testimony of both the appellant and his wife to the effect that appellant had no whiskey at his house at the time of the alleged sale. Complaint is also made at the court’s action in refusing to permit the appellant to prove by the cashier of one of the local banks that one of the state’s witnesses had issued several checks to various persons upon his bank in sums ranging from $1.55 to $8.00, when said witness had no funds in said bank to pay said checks. It is appellant’s contention that this testimony was admissible for the purpose of impeaching said witness. The. rule has been correctly stated that proof of particular acts of misconduct is not admissible to effect the credibility of a witness. Defendant or any other witness can only be impeached as to other offenses by showing that he has been legally charged with a felony or a misdemeanor imputing moral turpitude. McAfee v. State, 17 Tex. Crim. App. 139; Conway v. State, 33 Tex. Crim. Rep. 329, 26 S. W. 401; Phillips v. State, 164 S. W. 1007. There is no pretense or suggestion in this record that the charges against this witness had been reduced to a legal accusation. The court’s action in excluding the testimony was correct. The court did not err in permitting the witness for the state to give his opinion as to the liquor in question, based upon its odor and the taste of the same. Hendley v. State, 94 Tex. Crim. Rep. 40. Appellant complains at the court’s action in permitting the witness, Spring, to testify that he was present when appellant’s premises were searched on the day following the alleged sale and that about 30 or 40 bottles of beer, a fifteen-gallon jar of mash and a five-gallon jar containing what looked like beer and a gallon of whiskey were found. This testimony was clearly *32 admissible as not only shedding light on the question under investigation but as rebutting the testimony offered by the appellant and his wife. Finding no error in the record the judgment is in all things affirmed. 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.