From a conviction in the District Court of Jones County of possessing intoxicating liquor for the purposes of sale, appellant brings this appeal.
The facts show that appellant was arrested in possession of a car in which were twenty-seven gallons of whisky. Evidence was before the jury showing sales of liquor by appellant about that time. The evidence amply supports the judgment of guilty.
Appellant has two bills of exception complaining of improper argument on the part of the State's attorney. An examination of said bills discloses that the argument complained of consisted of the repetition before the jury of a statement made by appellant immediately following his arrest in which he stated that he had 27 1/2 gallons of liquor in his car. Each of said bills of exception is qualified by a statement from the learned trial judge that this testimony was admitted without objection. This being the case, it would be permissible to discuss it. This court has said many times that the accused may not sit silently by and permit testimony which might be subject to objection, to be introduced and thereafter complain of use made of it by the State in argument or otherwise. We might further observe with reference to the statement made by the appellant almost immediately following his arrest to the effect that he had in his car 27 1/2 gallons of liquor, that it would appear to be admissible under the further rules of res gestae that statements made in connection with or as a part of a confession which lead to the discovery of fruits of the crime and which are found to be true, become thus admissible.
Appellant also complains of testimony of sales of liquor made by him shortly before the date of his arrest in possession of the liquor charged in this case. An essential element of the offense charged herein is the purpose and intent of the appellant in having liquor in his possession, that is, the State must satisfy the jury that such possession was for the purpose of sale. As shedding light upon the intent of the accused *Page 600 in such possession, it is permissible for the State to show sales of such liquor within reasonable proximity of time. Anderson v. State, 91 Tex.Crim. Rep., 238 S.W. Rep., 321; Newton v. State, 94 Tex.Crim. Rep., 250 S.W. Rep., 1036.
We perceive no error in the action of the sheriff in bringing before the jury at the time he testified a glass jar said by him to be one of the jars of whisky obtained from the appellant at the time of his arrest. If such testimony was in anywise objectionable, it could not be held so in the instant case because the learned trial judge qualifies the bill of exceptions by saying that when the accused objected he directed the officer to remove the whisky. This disposes of the contentions of appellant. Being unable to agree with any of them, an affirmance will be ordered.
Affirmed.
ON REHEARING. March 5, 1924.