Appellant was convicted of having in his possession intoxicating liquor, not for medicinal, scientific, sacramental or mechanical purposes, and his punishment fixed at confinement in the penitentiary for one year.
We do not think it necessary that in the indictment, the liquor which appellant was charged with possessing should have been further described as being such as required a Federal tax as a beverage. The statement in Section 4 of what is known as the Dean law, Acts Second Called Session, Thirty-sixth Legislature, Chap. 78, that the liquor described in Sections 1 and 2 of said Act should be construed to include certain named liquors, and all . . liquors . . which require a Federal tax as a beverage," has reference to matters of proof. The specific purpose of said Section 4 seems to be to obviate the necessity for alleging any of the descriptives therein mentioned, and to make it plain that the descriptions of Sections 1 and 2 may be met by proof of possessing, manufacturing, etc., the liquors described in said Section 4.
We think there was no such separation of the jury during the instant trial as constitutes misconduct. Upon the State's controversy *Page 172 of this part of appellant's motion for new trial evidence was heard, and the facts show that at some stage of said trial while the jury were in their room they were called to come into court and one of the jurors remained momentarily behind in a toilet. This juror testified that within a minute he went into the courtroom and rejoined his fellows without having spoken to or been spoken to by any person. A deputy sheriff testified that he saw said juror come out of the jury room and rejoin the other jurors in the box, and that he spoke to no one and no one spoke to him. Injury was thus entirely negatived by the State.
During the taking of testimony the appellant absented himself from the courtroom while a witness was testifying. At once, upon the discovery by the court of his absence, the proceeding was stopped until appellant's return. It appears that while he was absent a witness identified certain jars of liquor as being that found in appellant's possession. After appellant returned the same evidence was reintroduced in his presence. The question has been fully discussed by this court before. Cason v. State,52 Tex. Crim. 224.
A witness who testified that he had had much experience handling intoxicating liquor, and had seen "a right smart liquor" made in Georgia, and that he could tell new whisky from old whisky, was permitted over appellant's objection to state that in his judgment the liquor found in appellant's possession was new whisky. We know of no rule or authority which would exclude such testimony of a witness whose experience appeared to qualify him, even if the matter be such as to require some degree of expertness in order to enable the witness to testify. The objection would seem rather to go to the weight of the testimony than to its admissibility.
Appellant claimed that he had possessed the liquor in question from a time prior to the taking effect of the law forbidding such possession. As tending to refute his claim in this regard, the State was allowed to introduce testimony of officers who stated that they had frequently searched his premises for intoxicating liquor, since the taking effect of said law, and that they had found no such liquor as that charged in the instant case. We think the effect of such testimony was to sustain the State's contention of illegal possession, and to rebut that character of possession relied upon by appellant. The fact that one of said witnesses stated that at the time of such search he found a drink or two of liquor in a bottle which they did not consider to amount to anything, would not seem to be reversible error. The fact that such liquor was in said bottle was not relied on to convict and there was no separate objection made to such testimony which appeared to be a voluntary statement of said witness and not in response to the question asked. No motion to exclude was made by appellant, and we think no reversible error appears.
Complaint is made that the charge of the court did not affirmatively state to the jury the theory of appellant's defense on the ground of his *Page 173 possession of said liquor prior to the taking effect of the Dean Act. An examination of the main charge discloses the fact that said theory was submitted, and both affirmatively and negatively by the trial court, in that he instructed the jury that they must believe that appellant's possession was not from a time prior to the taking effect of said law, before they could convict; and also instructed them that if they had a reasonable doubt as to whether such possession had so extended, they should acquit.
Objection was made to certain statements of the prosecuting attorney in his argument to the jury. The record discloses that no written request was presented asking an instruction that the jury not consider such argument. This has ordinarily been held necessary unless the character of the argument be such as that injury appear probable. We do not think the argument in the instant case such as to make it reversible error in the absence of such request.
Finding no error in the record the judgment will be affirmed.
Affirmed.
ON REHEARING. October 19, 1921.