Lerma v. State

• Citation: 194 S.W. 167
• Decision Date: 28 March 1917
• Docket Number: (No. 4418.)
• Parties: LERMA v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

194 S.W. 167

LERMA v. STATE.

(No. 4418.)

Court of Criminal Appeals of Texas.

March 28, 1917.

Appeal from District Court, Wilson County; F. G. Chambliss, Judge.

Petra Lerma was convicted of selling intoxicating liquor in local option territory, and appeals. Reversed and remanded.

J. E. Canfield, of Floresville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was indicted and convicted of the offense of selling intoxicating liquor in a territory where its sale was prohibited, and her punishment assessed at confinement in the state penitentiary for one year.

In the first bill of exceptions complaint is made of the fact that the jury was permitted to uncork a bottle of liquid, alleged to have been a part of the intoxicating liquor sold by appellant, and to smell the liquid. This character of procedure is criticized by this court in the case of Dane v. State, 36 Tex. Cr. R. 87, 35 S. W. 661, in which case there was an issue as to whether a certain compound was an intoxicating liquor and the jury was permitted to taste and smell it. There was in that case evidence pro and con as to whether the particular fluid which appellant sold was intoxicating. This court also had the question before it in the case of Parker v. State, 75 S. W. 31, and held that the court committed error in permitting the jury to handle and smell the bottle of liquid which was introduced in evidence as being that charged to have been sold by appellant in that case. Under the facts of that case, there was a sharp issue as to whether the compound charged to have been intoxicating was in fact so, and as to whether or not the liquid exhibited to the jury was the same that had been sold by appellant. In Thompson v. State, 72 Tex. Cr. R. 6, 160 S. W. 685, where the liquid in question was diluted alcohol and shown to have come from the possession of appellant, it was held that the fact that the jury handled the bottle and smelled its contents was not error. In the present case the prosecuting witnesses testified that they bought whisky from appellant. The appellant denied the sale altogether. There was testimony showing that the bottle exhibited to the jury was the same and the contents the same that was purchased by the prosecuting witness from appellant. The issue, therefore, was not whether the particular liquid was intoxicating, but whether or not the sale had been made. It has been frequently held by this court that it will take judicial notice of the fact that whisky is an intoxicating liquor. Rutherford v. State, 49 Tex. Cr. R. 21, 90 S. W. 172; Wilcoxson v. State, 91 S. W. 581; Words and Phrases (New) vol. 2, p. 1182. The same is true with reference to alcohol. Walker v. State, 98 S. W. 265; Words and Phrases (New) p. 1176. The evidence being conclusive that if the sale was made, it was whisky, and the court judicially knowing that whisky is an intoxicant, the fact that the jury examined or smelled the liquid, while error, would not be harmful under the facts of this case.

The second assignment of error complains that there was error committed by the court in permitting the state to introduce evidence that appellant committed another and different offense. The evidence complained of was in rebuttal to that given by the appellant with reference to the length of time that she had lived with her present husband, and was to the effect that she could not have lived with him long because she was living on witness' place with another Mexican whose name he did not know. He said that he did not claim that she was living in adultery with the Mexican. Appellant herself said she had been...