The appellant was indicated, tried and convicted in the district court of Palo Pinto County, with unlawfully possessing intoxicating liquor, and his punishment assessed at one year's confinement in the penitentiary.
The appellant complains of the action of the trial court as set out in sixteen bills of exception, which we think show no error of the trial court, and are without merit.
The first bill of exception, the court refuses to approve, and states as a reason therefor that the matters didn't occur as stated.
In bill No. 2, there is complaint against the statement of the court to the jury to the effect that the court was tried and was not well and was going home to take a rest and that he would receive their verdict when he returned Monday morning. The jury returned a verdict in about forty minutes thereafter and the appellant contends that this statement induced the jury to bring in a verdict of conviction. We are unable to agree to this contention and see nothing in the bill that would indicate that the jury could infer from the statement of the court that he thought the defendant was guilty or that he thought he was not guilty, and unless they could infer from the actions and statements of the courts that the court thought him guilty there could be no error in this particular. The record discloses that this occurred on Saturday. In Branch's P. C., Sect. 269, it is stated "remarks of the judge to the jury will not operate to reverse the judgment in the absence of showing of probable harm to the accused." Furlow v. State, 47 Tex. Crim. 12; 51 S.W. 938, and many authorities there cited.
There is complaint raised to the, refusal of the court to give to the jury certain special charges requested by the defendant in this case. The issues raised in these special charges were fully covered by the court's general charge, and there was no error in refusing same.
In bill of exception No. 5, it is alleged that the court erred in not requiring the state to elect on which count in the indictment it would try the defendant. The court in his charge to the jury submitted only the second count and thereby eliminated the other count, and there is no merit in this contention.
In bill of exceptions No. 6, it is contended that the court erred in permitting the testimony of the state's witnesses to show that Mr. and Mrs. Hughes were in a state of intoxication at the time and place of discovering the wine in question, for which the defendant was convicted. We fail to see any error in this particular, as the *Page 478 appellant was charged with possessing and selling intoxicating liquor, and evidence, showing the presence of witnesses on the ground and at the time and place in question intoxicated, would be a circumstance for the jury to consider on the state's theory of the case.
Bill of exception No. 7, complains of one of the state's witnesses testifying to having a conversation with wife of defendant. Said bill is defective in that it does not set out what the conversation was.
Bill of exception No. 9, complains of the action of the court in permitting state's witnesses to testify that the prosecuting witness Massey was drunk and vomited in the yard of the jail. We fail to see where this evidence, threw any light in any way on the issues involved and are unable to see in what way it was harmful to the defendant. The bill does not state any fact that we can see that shows that this testimony was injurious to defendant in any way.
In bills No. 11 and 12, and 16, the appellant complains of the action of the court in permitting the sheriff and prosecuting witness Massey to testify concerning the trade they had between themselves, relative to Massey going to the home and place of defendant for the purpose of ascertaining whether or not he, the defendant, was selling intoxicating liquor, and said prosecuting witness Massey getting a pint of whiskey from the sheriff and taking it along with him to be used by him to obtain said information, because all of said acts and conduct was hearsay and unknown to the defendant. As a rule such testimony is inadmissible and is reversible error where it affects the defensive theory of the case, and not shown to have been known to the defendant. But after a careful consideration of these bills which show a conversation between the sheriff and prosecuting witness to the effect that he was sending said witness to the town of Dalton City where defendant was in business and there see if the Dean Law was being violated; and appellant's counsel on cross-examination, showed said witness took a pint of corn whiskey with him; then on redirect examination the state showed by said witness, his reasons for taking the whiskey was to get in with the defendant and see if they were selling whisky. We think this testimony was proper under the circumstances of this case. The mere fact that the evidence showed on direct examination that the sheriff sent said witness to investigate the violation of the Dean Law was not error. Branch's P. C., Sect. 1930 states: "Proof of movements of deceased not known to defendant may be admitted if it is a mere matter of inducement and does not affect a defensive theory." Bozanno v. State, 60 T. C. R. 507;132 S.W. 777, and other authorities.
In the Bozanno case, supra, Judge Ramsey states the case in which the actions, declarations and intentions of a decedent are held not to be admissible against the defendant who has no notice of them has always been limited to cases where the issue of self defense arose in the case, and where said actual movements of the deceased *Page 479 could be held to be hostile in their character and when such defendant had a right to act upon apparent hostile movements towards him which might, if the rule permitted it, be shown to be in fact innocent. It can have, we think, no application to such a case as this, and the objection is untenable.
It will be observed from the authorities, supra, that the objections raised to this testimony would not apply to the instant case and would only be applicable to cases, as stated by Judge Ramsey, where the question of self defense was involved.
In the absence of the record showing that the defendant has not had a fair trial this court will be unauthorized to reverse the case under Art. 743 of the C. C. P.
After a careful consideration of all the bills presented by the appellant in the case, and the entire record, we are of the opinion that there is no reversible error shown in the trial court and the judgment should be and is hereby 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.
ON MOTION FOR REHEARING.