Brown and Mason swore positively on the trial to having purchased from appellant a quart of whiskey in July, 1924. Two State witnesses, England and Ball, swore to having purchased from appellant intoxicating liquor in October, 1923. Appellant testified in his own behalf and admitted that in addition to the instant case, he was indicted for selling liquor to England, and was under indictment in Montague County for transportation and possession of whiskey, and was indicted in the Federal court, and was also under indictment for selling whiskey to R. D. Kelley. In this condition of the record appellant asked the court to give a special charge as follows:
"Gentlemen of the Jury: You are charged as part of the law in this case, that in the trial hereof evidence of other offenses has been introduced in evidence and I now charge you that you cannot consider such testimony with reference to other offenses for any purposes whatsoever, unless you find and believe from the evidence beyond a reasonable doubt, that the defendant was guilty of said other offenses if any were committed."
Complaint is made of our disposition of the refusal of this charge. Probably we should have said that such charge, under the facts of this case, was too indefinite, inapplicable and confusing. When appellant admits that he is or has been under indictment for one or more offenses, it would be wrong for the trial court to tell the jury that they could not consider evidence of other offenses, unless the State had proven appellant's guilt beyond a reasonable doubt in the matters inquired about; such testimony being admissible as affecting *Page 602 credibility. Appellant in no way confined his requested charge to the occurrence of October, testified to by Ball and England, but makes said charge embrace "all testimony with reference to other offenses." It would appear clear that such a charge was properly refused.
In addition to what we have just said, we observe that the trial court gave appellant's special charge as follows:
"Gentlemen of the Jury: You are charged as part of the law in this case that the testimony given with reference to other offenses than that charged in the indictment can not be used by you against the defendant for any purpose unless from said testimony you believe that the defendant on or about the 4th day of July, 1924, had in his possession intoxicating liquor for the purpose of sale."
We further observe that appellant, who ran a cold drink stand, when cross-examined as to the Ball and England sale in October, repeatedly asserted that he did not sell said parties any "whisky." In his main charge the court instructed the jury as follows:
"The evidence before you concerning an alleged sale of liquor on or about the 10th day of October, 1923, by the defendant, if you find he made such sale, can only be considered by you as a circumstance tending to show, if you find that it does tend to show, that the defendant had possession of intoxicating liquor for the purpose of sale, on or about July 4, 1924.
"You are charged as part of the law in this case, that the testimony as given by the witnesses Ball and England, with reference to the purchase of liquor, if same was sold, cannot be considered by you for any purpose, unless you find and believe from the evidence beyond a reasonable doubt, that the liquor so purchased, if same was purchased, was capable of producing intoxication."
This sufficiently covered the point.
Believing that the trial court correctly refused the special charge, and that the issues in the case were properly covered by the charge as given, and that the opinion reached the correct conclusion, the motion for rehearing will be overruled.
Overruled.