The unlawful sale of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of one year.
Without stating it in detail, the State's evidence, if believed, shows that the appellant sold to W.M. Stanley, Jr., intoxicating liquor containing about fifty per cent of alcohol. The appellant's testimony presents the theory of alibi. The issue of the appellant's identity as the offender has been settled against him by the verdict of the jury upon competent and direct evidence.
There was no error in permitting a witness to use a memoranda to refresh his memory. Moreover, the bill does not reveal the testimony given by him.
A witness for the appellant was asked on cross-examination if he had not been convicted of violating the so-called Volstead Act, to which he replied in the negative, but admitted that he was charged with such violation. The bill containing no statement of the evidence given by the witness, leaves this court without information upon which to determine whether the impeachment of the witness was prejudicial to appellant. In the absence of such statement in the bill, the presumption in favor of the correctness of the court's ruling must prevail. Conger v. State, 63 Tex.Crim. Rep.; Vernon's Texas Crim. Stat., Vol. 2, p. 537, note 21. *Page 511
The witness Powell was asked by the State's attorney to state what he did. He replied that he and Stanley went to a certain cafe and took a glass of milk to counteract the effect of the drinks taken. None of the surrounding facts are set out, but if all of the record is considered in aid of the bill, no material error is perceived, for the reason, among others, that the evidence is sufficient to show guilt, and the minimum punishment was assessed.
The complaint that when Stanley was asked if he bought anything from the appellant he replied, "Nothing but whisky," is without merit. Especially is this true when it appears, without dispute and without objection, that the article purchased from the appellant by Stanley was shown to contain a high percentage of alcohol and to be usable as a beverage. The idea advanced is that the statement of the witness that the article was whisky was a conclusion. The witness described the liquid which the appellant sold to him. His conclusion that it was whisky was competent. Cathey v. State, 94 Tex.Crim. Rep., 252 S.W. Rep., 534.
In its charge, the court used this language:
"* * * our Penal Code provides it to be unlawful for any person, directly or indirectly, to sell, * * * spirituous, vinous, and intoxicating liquors, * * * not for medicinal, mechanical, scientific, nor sacramental purposes."
Appellant complains of the use of the word "indirectly", asserting it to be misleading in that all of the evidence of the State to the effect that the appellant in person sold and delivered the whisky to the purchaser, and the implication in the charge that there was evidence of an indirect connection with the sale, which might justify conviction, being opposed to the defense of alibi, was calculated to mislead the jury. The objection urged against the charge of the trial court was that itwas directing the jury to find the defendant guilty of sellingintoxicating liquors indirectly. That part of the charge of the court which submits the issue to the jury for finding bears no such interpretation. It reads thus:
"Bearing in mind the foregoing instructions, you are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant Billy Hunter did on or about the 11th day of February, A.D., 1922, in Jefferson County, Texas, unlawfully, and not for medicinal, mechanical, scientific, nor sacramental purposes, sell spirituous liquors capable of producing intoxication to one W.M. Stanley, Jr., as charged in the bill of indictment, you will find him, the said defendant, Billy Hunter, guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for any period of time not less than one year nor more than five years; and if you do not so believe from the evidence beyond a reasonable doubt, you will find the defendant Billy Hunter not guilty." *Page 512
Following the paragraph quoted was the charge on alibi, which concluded with these words:
"Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed (if committed) at the time of the commission thereof, you will find him `not guilty'."
Considering the charge in its entirety and in the light of the record, the opinion is expressed that it must have made clear to the jury that unless the appellant was present and made the sale in person, an acquittal should result.
The judgment is affirmed.
Affirmed.
ON REHEARING. February 13, 1924.