The conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
The indictment follows the law embraced in Section 1 of Chap. 61, Acts of the Thirty-seventh Legislature, 2nd Called Session. See Vernon's Tex.Crim. Stat., Vol. 2, Sup. 1922 (Penal Code) Art. 588 1/4. In Section 2 of that Act, another offense is defined, namely: the unlawful sale of spirituous liquor containing an excess of one per cent of alcohol by volume. See Art. 588 1/4a. The prosecution being founded under Article 588 1/4, was not faulty in failing to contain an averment that the liquor in question contained more than one per cent of alcohol. See Estell v. State, 92 Tex.Crim. Rep., 240 S.W. Rep. 913.
The purchaser named in the indictment testified that he bought the whisky from the appellant. The appellant admitted that he delivered the whisky to the witness but claimed that it was a gift and not a sale. The solution of the issue of fact by the jury is binding upon this court.
Objection was urged that the bottle of fluid introduced was not identified as that coming from the appellant. This is controverted by the qualification of the bill, and we think also by the statement of facts. Hooker, the purchaser, testified that he bought a bottle of liquor from the appellant and delivered it to the witness Booth. Booth testified that he instigated and observed the purchase and received the liquor, and that in his presence, his wife placed a label upon it. He identified the bottle from his own memory and knowledge of it as well as from the label, and produced it in court. Upon his identification it was admitted in evidence. While on the stand he tasted the liquid. The complaint of this is not well founded. The witness gave testimony qualifying him to determine the character of *Page 497 the liquor by tasting it. See Joyce on Intoxicating Liquor, Sec. 521; Cyc. of Law Proc., Vol. 23, p. 266.
The complaint in the bill about the facial expressions of the witness is not approved by the trial judge.
Appellant, in his testimony, claimed that he had bought the liquor and that it cost him more than the State's witness claimed to have paid for it. There was also testimony that the cork in the bottle was put in by a machine. Appellant testified that there was no machine for putting corks in the bottles upon his premises. He also testified that a corking machine had been seen by him at the home of another person in the neighborhood; also that there was no still upon his premises. In rebuttal, the State introduced testimony that on the night of the arrest a still was found, also a corker and other equipment for manufacturing liquor; also conversations with the appellant and testimony to the effect that the still had been moved from his house to that of Mrs. Bryan.
The bill complaining that at Mrs. Bryan's place was found part of a still, a corker and labels similar to that upon the bottle in which the liquor was obtained by the purchaser from the appellant is without merit.
There is a bill complaining of the failure of the court to instruct the jury to disregard certain conversations with the appellant while he was under arrest. The qualification of the bill states in terms that at the time the declarations were made appellant was not under arrest. A bill accepted in this condition is binding upon the appellant. There appears to have been no objection to the testimony at the time it was received.
The evidence is sufficient and no error is discerned.
The judgment is therefore affirmed.
ON REHEARING. May 30, 1923.