In his motion for rehearing appellant claims that we erred in holding admissible the testimony of witness Wolfe; second, in not holding that it was error for the trial court to give a special charge asked by the state limiting Wolfe's testimony; third, in holding the testimony sufficient to show appellant's possession of the liquor in question; fourth, in holding admissible the replevy bond executed by appellant, and, fifth, in the court not charging the jury with regard to the theory of accomplice testimony as related to the witness Wolfe.
We note these contentions in reverse order. The transaction made the basis of this prosecution occurred in Hubbard City, December 23, 1921. Along with other circumstances to show that the purpose of appellant in possessing the liquor in question, was for sale, the state put Wolfe on the witness stand and proved by him that some time about the middle of November, 1921, he got from appellant a quart of whiskey for which he paid him four dollars. Another witness had testified that along about the date of the instant transaction appellant came to him and asked him if he was interested in whiskey — asking *Page 527 witness if he wanted to buy it, or if he would like to have some, or something to that effect. No exception was taken to the court's charge for any failure to charge on accomplice testimony, nor was any special charge asked presenting the law of this issue. In this condition of the record appellant is in no position to complain that the issue was not submitted, even if the testimony had shown that the occurrence between appellant and Wolfe was prior to the taking effect of the amendment to the Dean Law in 1921, which removed purchasers from the ranks of accomplices, which it did not do. Bridges v. State, 88 Tex.Crim. Rep.; Berlew v. State, 225 S.W. Rep. 518; Gibson v. State, 225 S.W. Rep. 538; Castleberry v. State, 228 S.W. Rep. 216; Hill v. State, 230 S.W. Rep. 1005. Castillo v. State, 172 S.W. Rep. 788, cited by appellant, seems to have been tried in the lower court before the practice act of 1913 in reference to charges, became effective, and the opinion in that case presents no reference to the law now effective in regard to exceptions to the court's charge.
Discussing the admissibility of the replevy bond, we observe there seems no dispute of the fact that the car which had in it in Hubbard City on December 23rd, four jugs of whiskey, and which was taken into custody by the officers that day, and that night turned over to the Federal authorities — was replevied by appellant on December 30, 1921, by giving a replevy bond which he executed as principal with others as sureties. In said replevy bond over appellant's own signature was the statement that he owned the car therein described by license, seal and motor number. The record otherwise reflects that appellant was in Hubbard City on that day and was a seen a number of times before noon and about noon was observed going toward this particular car. When he got within six or eight feet of it an officer, who was watching from the rear of a nearby store, started toward him but made an accidental noise with articles which he came in contact with, whereupon appellant turned and went away and was not found in said town any more during that day, though the officers looked for him. By the tax collector of the county it was also shown that a car bearing the same license, seal and motor number as the one containing said liquor, had been theretofore transferred to appellant. The case was one of circumstantial evidence and so treated by the court in the charge. We have no doubt of the correctness of his action in admitting that part of the *Page 528 replevy bond which stated the numbers on said car and the admission of ownership by appellant.
In reference to the sufficiency of the testimony to show possession, we note that the car was appellant's; that it was parked in Hubbard City on that day; that he lived in another town; that he was in Hubbard City and was there seen a number of times during the morning of said day; that the car had attracted the suspicious attention of the officers and they were watching it; that he was seen near the car and going to it. When a noise was made by a watching officer appellant went away and though searched for, was not found in the town again that day. No one else came for the car. It was taken in custody by officers and delivered to the Federal authorities that same day. Mr. Bruner swore that on or about that day appellant asked him if he wanted to buy some whiskey, or if he would like to have some, witness was not quite sure which. These facts coupled with the additional proof of appellant's ownership of the car, seem ample to support the conclusion of the jury that he was in possession of the car and its contents in Hubbard City on that day.
Reverting to the complaint of the admission of the state's special charge limiting Wolfe's testimony, we note the court gave said charge as follows:
"Gentlemen of the Jury: At the request of the state you are charged as follows: The testimony of the witness T. S. Wolfe to the effect that he had a transaction with the defendant about the middle of November, 1921, in which he received from the defendant one quart of whiskey, and that he thereafter delivered to defendant $4.00 for same (was admitted for the purpose of showing the intent of the defendant, if it does, in regard to the disposition of the whiskey which was found in the car belonging to the defendant), and you can not consider such testimony for any other purpose."
This was objected to by appellant for various reasons. It is a well settled rule that where there is no controversy in evidence over a given issue, the court may assume it as established in the charge. There is not a word of evidence in this record controverting the fact that the car in question belonged to appellant. As stated above, the replevy bond stated specifically over appellant's signature that said car did belong to him, and the tax collector testified that his records showed a transfer of said car to appellant. No one directly or indirectly controverted this fact. We think appellant suffered no injury
*Page 529 from the assumption in said special charge that the car belonged to him. The evidence of Wolfe was pertinent as affecting the purpose for which appellant possessed the liquor, if he did possess it. We think the use of the words "intent in regard to the disposition of the whiskey" as used in the charge presents substantially the same idea as if the charge had stated the purpose for which he possessed it. (Our Brother Morrow regards that part of the special charge, referring to appellant's intent, as on the weight of the evidence.)
As to the question of the admissibility of the testimony of Wolfe, we think it admissible because the case was one of circumstantial evidence, and also because a particular intent on the part of the possessor of the liquor in question, becomes material by virtue of the statute. (Our Brother Morrow is of opinion that this evidence was not admissible.) In cases of circumstantial evidence, proof of any material fact may be made by circumstances the weight and cogency of which are for the jury if same shed any legitimate light on such issue. There is a well settled exception to the general rule rejecting evidence of other offenses and transactions when a particular intent on the part of the accused becomes an issue. If such proof be pertinent to the establishment of such particular intent, it would not be a valid objection to it that it was proof of another offense. There is nothing in said special charge assuming the truth of the testimony given by Wolfe, and it fairly limits said testimony as affecting the jury's belief as to the purpose for which appellant had the whiskey, if he did have same in his possession.
Being unable to agree with appellant, the motion for rehearing will be overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.