Robert Austin swore point blank that at the depot in Hillsboro he bought a pint of whiskey from appellant; that he and appellant were in a toilet when the agreement to sell was made, and appellant told him to go back into the waiting room, get a grip and bring it to the toilet, which he did, and appellant took from the grip a pint of whiskey and sold it to witness for two dollars. Both appellant and Austin are negroes. Another negro, an employe at said depot, swore that he saw appellant and Austin go into the toilet, — saw Austin come out and get a grip and take it back while appellant was still in said place. When arrested appellant had a jar partly full of whiskey and two empty pint bottles in his grip. He claimed to have absorbed the contents of the two bottles at Corsicana the night before. He swore that the sheriff at the jail called him a G — d d — n liar and hit him over the head with a black snake whip. A number of white men who lived in the same town with appellant testified for the defense.
I regret that I can not agree that this case should be reversed because the court below declined to permit appellant to testify that he bought the gallon of whiskey found in his possession for medicine for himself and mother-in-law; that a doctor had prescribed it for *Page 436 both of them. The charge against appellant was the sale of a pint of whiskey. No special emphasis was laid in the development of the case upon the fact that appellant had the larger quantity of whiskey in his grip but simply came out as part of the res gestae of the transaction.
Appellant flatly denied making the sale. In this he was contradicted by Austin. Appellant denied going into the toilet or having the grip in there. In this he was contradicted by Coffee and Austin. Appellant asserted that when arrested he had a full gallon of whiskey that he had bought in Corsicana the night before for himself and his mother-in-law. In this he was contradicted by Mr. Elliott, a white man, who testified that the gallon jar found in appellant's grip at the time of his arrest was two thirds full of whiskey. Appellant swore that the sheriff called him a G_d d__n liar at the jail and hit him over the head with a black snake whip. In both statements he was directly contradicted by the sheriff.
The jury having refused to believe appellant when he denied the sale of the whiskey, which was the direct issue in the case, it seems to me wholly improbable, in view of all the facts and the numerous contradictions of appellant, that his statement that he had the liquor for medicine for himself and his mother-in-law, would have favorably affected the verdict. Nothwithstanding they were apparently in Hill county, no doctor was offered as a witness, no mother-in-law was produced, no one of the number of witnesses from appellant's home town was asked if he knew that appellant or his mother-in-law was sick or afflicted in any way. I am unable to bring myself to believe that this court is called on to reverse this case upon the hypothesis that the naked word of this appellant on the collateral issue of whether he had the liquor for medicine or not, would or might have favorably affected the verdict of guilty of a sale of the pint of liquor. The jury gave appellant the lowest penalty. I think the judgment should be affirmed. Being unable to agree to this reversal, I respectfully record my dissent.