Appellant was convicted in the county court of Fannin County on complaint and information, charging him with selling intoxicating liquors in said county in violation of the local option law.
There are many questions raised in the record, most of which, however, relate to the same matter. The orders and records read in evidence were sufficient to show and did show the due and regular adoption of local option in Fannin County, and all assignments and questions of sufficiency thereof are overruled.
The witness Cobble testified, in effect, that he knew defendant, John Southworth, and that he bought what they called "wakasha" from both Frank Smith and from J.W. Bland, and that Smith and appellant were partners in a drink stand and confectionery business at Trenton in that county. That he did not remember of seeing the defendant at the time of the sale, but the defendant was behind the bar part of the day waiting on customers. The testimony of this witness is somewhat indistinct and uncertain as to whether the liquor bought by him at Smith's place was intoxicating, though there would seem to be no doubt of this fact in the light of the testimony of the witness Thompson, who bought and drank the same character of liquor as that which the witness Cobble admitted buying. While the witness Cobble was on the stand, the county attorney propounded to him the following question: "Did you not tell me in my office that you bought some stuff that looked like beer and *Page 534 that it intoxicated you, from the defendant himself?" This question was objected to, because it was an attempt to impeach the witness without proper predicate being laid, and because it was an attempt to impeach the State's own witness when he had given no damaging testimony, but his testimony was negative merely, and because it was hearsay statements written down by the county attorney purporting to be the statements of the witness in the absence of the defendant, and such statements were hearsay. To this the witness was compelled to answer, and did answer as follows: "I don't remember of telling you that, for I don't remember of seeing him. I did tell you that I bought in his place of business, and that I bought from Bland at his place of business." A sufficient answer to this objection would be that the answer of the witness was not particularly hurtful, but if this was not true, in view of the explanation of the trial judge that this witness was both unwilling and reluctant and county attorney claimed surprise at his testimony, we think there was error. In matters of this sort much discretion must be left to the trial court. We not only can see no abuse of the discretion, but so far as we may observe from the record, the trial judge exercised his discretion properly.
A more serious question arises on the cross-examination of appellant. While he was on the witness stand the following question was propounded to him by the county attorney: "Didn't the sheriff of this county seize some intoxicating liquors at your place of business under a search warrant issued by the county judge, and was the liquor so seized condemned by the court as a nuisance and ordered broken?" Objection was made to this question, and the answer sought to be elicited thereby on the grounds that it was not shown when such transaction happened, because the records were the best evidence, and because it involved another transaction, and was no proof of sale in this instance, and the liquors were not shown to have been the same. In response to the question so propounded and answer to which was enforced, appellant said, "Some six weeks after this alleged sale the officers got about twenty bottles of that frosty and broke it. I had some of the frosty in cold water and the labels washed off and they took all that the labels had washed off of; they left about a barrel with the labels on it. I let them break it without contesting it. I then paid the costs in the confiscation case." After the answer was so made the defendant further objected to same, and moved the court to exclude said evidence and instruct the jury not to consider same, because the evidence showed that it was about another transaction six weeks after the alleged sale; that same showed no system, that it could not prove or disprove his guilt in this cause, and was getting the fact before the jury that the justice court had declared his frosty intoxicating liquors; and, therefore, the jury would be justified in considering it as evidence that it was intoxicating liquors. This testimony was admitted with the explanation that the defendant had sworn that he and his partner Smith had never at any time kept any intoxicating drinks, and that this evidence was admitted as impeaching *Page 535 testimony. We have had much doubt, in passing on this question; but in view of the court's explanation, and the fact that appellant had offered himself as a witness and was stoutly contending that he had never at any time kept intoxicating liquors, we believe this proceeding against him, the nature of the litigation, his course of conduct in respect thereto, would furnish a legitimate basis and ground of substantial contradiction, and would seem to be a line of conduct, if not an express declaration, inconsistent with his testimony and statement that he never at any time had kept intoxicating liquors for sale. He does not seek by his testimony to show, nor is there any pretense or claim that the liquors seized by the officers, were different or other than those, the intoxicating qualities of which are the subject matter of controversy in this case. On the contrary, there is an implied, if not indeed an express contention, that all the liquors which had been kept at any time by him, or at any time sold by him, were not only not intoxicating, but were of similar non-intoxicating quality and character. It is true that the seizure was some weeks after the alleged sale, and if it were a case in which there was a dispute or a serious doubt as to whether the liquor sold and the liquor seized were different, the objection here urged would have some force. But in a case where defendant is seeking to justify his conduct, and defeat the charge of a sale of intoxicating liquors, he contends that throughout his course of business at all times he confined his transactions to the sale of non-intoxicating liquors, is it not competent, as a test of his contention, for the State to prove any line of conduct, the necessary effect and consequence of which is to impute conduct to appellant inconsistent with such claim? In this case it is sought to be shown and was shown that the peace officers of Fannin County had under the warrant of law seized and confiscated his property on the ground that it was intoxicating; he is shown by the evidence to have stood by and consented; at least he did not dissent, did not undertake to reclaim his property on the ground that it was not intoxicating, and accepted, in a sense, the action of the officers, which was in harmony with the view of the State that the liquors were intoxicating, and in addition paid the cost of such proceeding. For the purposes of contradiction and impeachment, a liberal rule is allowed, and it is also competent, as we understand, to show any conduct or action on the part of the accused, the necessary or probable effect of which is to impute to him conduct or knowledge different from that which he has asserted. As to the matter of time of seizure with respect to a sale, it is, as we say, immaterial, in view of the claim and testimony of appellant, that the liquor sold by him at all times was practically the same, and at all times non-intoxicating. Remoteness, in point of time, however it might affect the value of the testimony, was not, we believe, ground for its exclusion.
Various exceptions were made to the charge of the court. The general charge of the court, supplemented by instruction No. 2, given at the request of defendant's counsel, seems to be unexceptional, and contains *Page 536 as favorable a submission of the issue as the defendant had a right to demand. This charge is as follows: "I charge you, gentlemen of the jury, that if the defendant in good faith, believed the liquor sold by Frank Smith to the witness Cobble was non-intoxicating, if you find such sale was made, you cannot convict the defendant, even though you should find that defendant authorized said Smith to sell same." This not only authorized the jury to find the defendant not guilty if the liquor was not intoxicating, but went even farther and instructed them to so find if they reached the conclusion that appellant believed it was not intoxicating. The whole charge, taken together, contains a most favorable submission of the issue, as far as defendant is concerned, of the controverted facts of the case.
There are other questions raised appropriately by bills of exceptions, which we have carefully considered, but in view of the length of this opinion already, we deem it unnecessary to pass on them. On the whole, the facts of the case were fairly presented to the jury; not only the issue as to whether the liquor was intoxicating was submitted, but the issue was further submitted as to whether defendant believed it to he intoxicating. The jury on a fair submission have found adversely to appellant, and there is no reason why we should interfere.
The judgment of the court below is in all things affirmed.
Affirmed.