Appellant was convicted in the District Court of Williamson County of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.
The evidence is ample to support the verdict. Dave Queen testified that on Christmas night, 1921, he went with a Mr. Wininger in a car out to appellant's place and there bought from him a certain quantity of whisky. He got from Mr. Wininger four dollars to pay upon the purchase price thereof and himself put in two dollars. The fact of the sale and the testimony of these witnesses appears in nowise controverted.
Appellant has two bills of exception, one complaining because a certain jar, said to contain whisky, was introduced in evidence. While the State witness Queen was testifying this jar was shown him and he said it was the jar in which appellant delivered him the whisky he bought on the night in question; that he marked a double "X" on top of the jar for identification and delivered same, with the liquor in it, to the sheriff of Williamson County. The fact that this witness had formerly stated that the jar he got was a quart jar and when shown the jar in question he said it was a half gallon jar, would not justify the rejection of said jar nor prevent further testimony of said witness that he had been mistaken when he formerly testified it was in a quart jar. Contradictory statements of the witness might be considered by the jury as affecting the weight of the testimony. It is agreed by both the State and appellant that the sheriff of the county if present would testify that the jar and its contents were delivered to him by the witness Queen and that it was at the time of the trial in the same condition it was when delivered to him.
Complaint is also made of the fact that the court refused to allow appellant to ask the witness Wininger in the presence of the jury if he had not been charged by complaint with assault to rob some thirteen years prior to this trial. It appears from the bill of exceptions that when the question was half asked, the State's attorney interrupted and stated to the court that he knew what appellant's counsel was asking for, and in his opinion it was incompetent, and he asked that the jury be retired and the matter of the admissibility of the evidence determined in their absence. The bill of exceptions and the court's qualification thereon shows that the jury were retired and thereupon counsel for appellant stated that they wished to show by said witness that in 1909 he was arrested and charged by complaint with assault to rob; counsel stating at the time that they would not be able to show that witness was ever indicted for said remoteness of said charge and the further fact that it was only by offense. Thereupon they were informed by the court because of the remoteness of said charge and the further fact that it was only by complaint and did not mature into an indictment that in his judgment the evidence was inadmissible. Appellant's counsel then stated *Page 652 that they wished to ask the witness about it in the presence of the jury and lay a predicate to prove that when testifying on the day preceding that of the instant trial, this witness had denied entirely having ever been so arrested. The court then informed appellant's counsel that in his opinion the matter referred to would be immaterial because of its remoteness, and in such case even if witness had denied it upon the preceding day and was now willing to admit that his testimony had been untrue in that regard, it was not competent to impeach a witness upon an immaterial matter. The court further told counsel for the appellant that if they desired to go further into this matter in the absence of the jury he would permit them, but they declined to further question the witness while the jury were in retirement, and when the jury were brought back they asked the witness no further questions.
We are unable to perceive any error in this action of the trial court. We deem it perfectly proper practice for either side to indicate that a proposed question, the answer to which might be prejudicial, is incompetent, and for the court of his own direction or at the request of such party to retire the jury and hear the matter in their absence. We do not believe that the State or the defendant should have its case prejudiced by the asking of questions which contain harmful and hurtful insinuations for no better reason than that it has the right to ask some question in the presence of the jury. We believe the trial court correct in his announcement that the remoteness of the arrest and charge in the complaint, would render the testimony inadmissible; and further conclude that this being true, the attempted predicate and impeachment of the witness was also improper.
The appellant asked the court below to submit to the jury the issue of accomplice testimony as applicable to the witness Wininger. We are unable to comprehend just what theory this contention rests on. Wininger went to appellant's home with Queen to get the liquor in question. He and Queen jointly contributed to make up the purse which paid for the liquor. The purchaser of intoxicating liquor since the amendment to the Dean Law became effective November 15, 1921, is no longer an accomplice. We do not think any error appears from the refusal of said special charge.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. June 20, 1923.