Conviction is for the sale of intoxicating liquor with punishment of one year in the penitentiary.
The indictment contained only one count which alleged the sale of intoxicating liquor to one Robert Austin. In developing its case, and before attempting to prove the alleged sale, the state called as its first witness an officer who testified that he arrested appellant on *Page 433 the night of the alleged sale at the depot and found in a suit case belonging to him a gallon jug about two-thirds full of whiskey and two empty pint bottles. Austin was next called and testified that he bought from a negro at the depot on the night of the arrest a pint of whiskey; he declined to positively identify accused as the party making the sale, only going so far as to say that appellant "looked like" the party from whom he had made the purchase. The state proved by another witness the movements of appellant and Austin at the depot which was a circumstance strongly supporting the contention of the state as to the alleged sale. Appellant denied having made any sale to Austin or to any other party and offered to explain his possession of the liquor found by the officer. If permitted he would have testified that he had purchased the whiskey in question for medicinal purposes having procured the same in Corsicana and was taking it to his home in Itasca; that he was afflicted with rheumatism at the time, that the doctor had prescribed whiskey for him and likewise for his mother-in-law, who was an old woman, and that he had procured the whiskey for medicinal purposes for both himself and her. When appellant offered to make this explanation objection was interposed by the state upon the ground that appellant was not charged with having whiskey in his possession for the purpose of sale, but was charged with selling it. The evidence was excluded and this is assigned as error.
In Sec. 94, p. 60 Branch's Ann. P. C. the author announces the general proposition that "The defendant or any other witness is entitled to explain any fact tending to create distrust of his integrity or truthfulness." Many authorities are collated supporting the text; see also the more recent cases of Boone v. State, 85 Texas. Crim. Rep. 611,215 S.W. 310, and Skinner v. State, 251 S.W. 810. Even more pertinent to the present question is the further proposition by the same author (Sec. 97, p. 62, Branch's Ann. P. C.) to the effect that "whatever material facts are introduced that tend to affect the issue, the other side has the right to deny, contradict or explain that testimony, showing its falsity, or breaking its force and effect in any legimate way." Some thirty cases from this court are cited by the author supporting the proposition. Evidence showing the possession of a quantity of whiskey by accused shortly after the alleged sale was unqestionably material and tended to affect the direct issue under investigation. It is true accused was not charged with possessing the whiskey for the purpose of selling it, but the effect of the evidence introduced by the state was to induce the jury to believe that he had it with such intent, and was actually carrying it out. The fact of possession was introduced by the state as a criminative circumstance against him. If he could show it was purchased for medicinal purposes it is true it would be no defense to a sale of part of it, but the fact of sale *Page 434 being controverted he should have been permitted to explain the purpose of its possession, thereby breaking, if he could, the force of this criminative fact put in evidence by the state. In this connection we refer to Mayo v. State, 92 Tex. Crim. 624,245 S.W. 241; Ellis v. State, 93 Tex.Crim. Rep.,247 S.W. 509; Warren v. State, 250 S.W. 429. The matter just discussed appears to be the chief complaint of appellant and in our opinion demands a reversal.
After Austin had testified on direct examination that he had purchased a pint of whiskey from a negro at the depot and that appellant looked like the man, it was elicited from him on cross-examination by appellant that said witness was arrested shortly after the alleged purchase and placed in jail; that thereafter he was brought before the grand jury a number of times and testified that he did not know from whom the purchase was made and could not identify the seller, but that after staying in jail some ten or twelve days he finally told the grand jury appellant looked like the man from whom he had made the purchase and that upon making this statement he was immediately released from jail; that from the time he first told the grand jury he did not know who sold the whiskey, and during the time he was in jail, he had not seen appellant. On re-direct examination the state undertook to prove by said witness that he had made a statement to the officer who arrested him in which he had identified appellant as the seller; after propounding some leading questions to the witness relative to the matter counsel for the state exhibited to him a purported written statement asking the witness to identify his signature thereto. It does not appear from the bill that the statement itself was ever offered in evidence and the particular objection as we understand it was that the state was permitted to exhibit to the witness in the presence of the jury a written instrument purporting to be a statement by the witness as to the transaction with appellant in which he identified the latter as the seller, thus indirectly getting before the jury the contents of the statement. It is appellant's contention that nothing was developed in the cross-examination of the witness which would justify the state in putting in evidence the statement or its contents. Upon the general subject of when and the manner in which proof of prior identification may be shown reference is made to Weaver v. State, 68 Tex.Crim. Rep., 150 S.W. 785. See also the recent case of Fortune v. State, 259 S.W. 573, which refers to Weaver's case, supra, and many others from which the correct rules may be ascertained. If it was the purpose of counsel for the state to refresh witness' recollection by the statement in question the proper procedure is suggested in Spangler v. State, 41 Tex.Crim. Rep., 55 S.W. 326. If it was sought to get before the jury the contents of the written statement without introducing it in evidence, same was improper and should be avoided *Page 435 upon another trial. As to whether the statement itself was admissible we do not discuss, that question not being before us, and having no information of its contents. This may arise upon another trial and we refer to Bryan v. State,90 Tex. Crim. 175, 234 S.W. 83; Katz v. State, 92 Tex. Crim. 629,245 S.W. 242; Whitman v. State, 93 Tex.Crim. Rep.,246 S.W. 1037, as throwing light upon the question.
Another bill relates largely to this same matter. It appears that the officer was placed upon the stand and interrogated relative to the identification by the witness Austin of appellant as the seller of the whiskey at the time said witness was arrested. It does not appear from the bill that the officer was permitted to testify but it does show that in a discussion of such matter before the court in the presence of the jury counsel for the state in effect told the court that if permitted to do so he could prove by such officer that the witness did so identify appellant. This is not the exact wording of the bill but such we understand to be its effect. Counsel should refrain from stating in the presence of the jury what he can prove when the controversy is as to whether such proof is properly admissible.
For the errors discussed the judgment must be reversed and the cause remanded.
Reversed and remanded.
DISSENTING OPINION.