Offense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.
The indictment charges the sale of intoxicating liquor to F. A. Fennigan. Fennigan and Craig were United States Prohibition Enforcement Officers. Together they went to the home of appellant and both testified on the trial to the sale of whisky by appellant to Fennigan.
When the witness Craig was testifying, it developed that the bottle of whisky purchased by the above two had been labelled and initialed at the time. This label was thereupon introduced by appellant: "Name of the purchasing agent, Buford H. Craig." The *Page 74 State then offered the whole of the label in evidence and Craig on redirect examination was permitted to testify over objection as follows:
"Now I have looked at that whisky label, and explaining why that label is marked and drawn up in that way, the reason for writing that like it is, on this bottle, I was carrying the expense at that time, and lending Mr. Fennigan money to make the purchase with; and had to get a refund of my money. I let Mr. Fennigan have this money, when we were leaving the Hotel there in Strawn. It was just as we started to this house, about 7:45 or a few minutes after."
It is insisted that the testimony of Craig on redirect examination was inadmissible since the label was unambiguous and needed no explanation and that the State having introduced the label in evidence could not destroy the effect of same by impeaching it. What has been said shows that the appellant himself introduced that part of the label showing that Craig was the purchaser of the whisky. This being introduced as impeaching Craig, who had just testified that Fennigan was the purchaser, the State, we think, on redirect examination was properly permitted to elicit the testimony objected to in explanation of the entries on such label. Mr. Underhill states the rule as follows:
"But on the redirect examination counsel will be permitted to ask questions which will explain all answers which were brought out on the cross-examination from which wrong inferences might be drawn by the jury, or which have a tendency to cast doubt upon the credibility of the evidence of the witness." Underhill's Criminal Evidence (3rd Ed.), Paragraph 357.
It is further insisted that the Court should have affirmatively instructed the jury to acquit if they found that the sale was made to Craig or if they had a reasonable doubt thereof. The Court did in his main charge require the jury to believe beyond a reasonable doubt that the sale was made to Fennigan before they could convict and authorized an acquittal if they had a reasonable doubt thereof. The purpose of introducing the hearsay statement contained on the label was to impeach Craig and to disprove the allegation in the indictment that the sale was to Fennigan. We think the Court in his main charge gave the appellant all he was entitled to, since the entire purpose of the testimony was to impeach the witness Craig and under the particular facts of this case we do not think that an affirmative issue arose from the introduction of the hearsay statements, plainly introduced in this case only as impeaching evidence. *Page 75
Objections were made to certain arguments of the District Attorney but they do not in our opinion show error and their importance do not seem to justify the consumption of space in discussion.
Finding no error, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.