The question on original submission being whether the trial court should have required the state to elect as between transactions we went to the statement of facts. Confusion regarding the facts probably led us into error. On motion for rehearing our attention is directed to the bill of exception bringing the question of election forward for review. The specific certification by the trial judge that there were separate transactions was not fully appreciated on original hearing. The recitals in the bill — certified as facts by the trial judge who saw the witnesses and heard the evidence — is binding on this court, and clears the matter of evidence in such a way that the question is presented in a different light. The bill shows that by written motion appellant requested the court to require the state to elect whether it would rely for a conviction on a transaction which is claimed to have occurred about the 28th or 29th of June, or on one which was claimed to have occurred some two or three weeks prior thereto, and the bill then contains the following certificate of facts:
"* * * the state had proved by the witnesses, H. M. Payne and Arch McAllister, in substance the following, — that said witnesses had gone to the shop of the defendant on a day about the middle of June, 1927, and had bought from the defendant two drinks of whisky, paying the defendant therefor; that the only whisky they saw in the shop that day was the two drinks they bought and drank. Be it further remembered that the state had proved also, by the witnesses, A. E. Bush and Arch McAllister, in substance the following — that said witnesses had gone to the shop of the defendant on a day about the last of June, 1927, probably the 28th of June, 1927, and *Page 631 had at that time and place bought from the defendant and his partner two drinks of whisky and a pint of whisky, paying the defendant therefor; that this occurred about two or three weeks after the time that the witness Payne and McAllister had bought the whisky that they testified about; that the only whisky they saw in the shop that day was the two drinks and the pint of whisky which they bought. Be it further remembered that there was no evidence showing that these transactions were one and the same continuous transaction."
It is perfectly plain that the court has certified that the state proved one transaction about the middle of June and another about the last of June, upon either of which — if the state's, evidence was believed — appellant could have been convicted of possessing intoxicating liquor for the purpose of sale. It has long been established that if the testimony develops more than one separate transaction the state may be required to elect as to which one it would rely upon for a conviction. Mr. Branch cites many cases under Sec. 444 (Branch's Ann. Tex. P. C.) supporting, the proposition, among them being Lunn v. State, 44 Tex. 85; Williams v. State,44 Tex. Crim. 316; Batcherlor v. State, 41 Tex.Crim. R.. Among the more recent cases are Sims v. State, 98 Tex.Crim. R.;265 S.W. 897; Sims v. State, 13 S.W.2d 98; Stringer v. State, 10 S.W.2d 721, in all of which many other authorities are referred to. In the light of the bill of exception it is impossible to distinguish this case from the two last cited.
Where the prosecution is for possessing intoxicating liquor for the purpose of sale we have held many times that proof of sales, not too remote, was relevant on the purpose for which the liquor was on hand. DeShazo v. State, 97 Tex.Crim. R.;262 S.W. 764; Criggs v. State, 99 Tex.Crim. R.,268 S.W. 940; McClendon v. State, 101 Tex.Crim. R., 274 S.W. 159. An election therefore would not have had the effect to withdraw from the case evidence of the transaction other than the one elected upon. It would still be in the case as aiding the jury, if it did, in determining the purpose for which the whisky was possessed by appellant upon the occasion relied upon for conviction.
Believing we were in error originally, the motion for rehearing is granted, judgment of affirmance is set aside and the judgment is now reversed and the cause remanded.
Motion granted; case reversed and remanded. *Page 632