Parker v. State

• Decision Date: 13 May 1903
• Citation: 75 S.W. 30
• Parties: PARKER v. STATE.
• Court: Texas Court of Criminal Appeals

75 S.W. 30

PARKER v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1903.

Appeal from Comanche County Court; W. C. Jackson, Judge.

Buck Parker was convicted of violating the local option law, and appeals. Reversed.

T. D. Webb and Joiner & McMillan, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction for violating the local option law, the penalty assessed being a fine of $25, and 20 days' confinement in the county jail.

While on the stand in behalf of the state, Southall exhibited a bottle on which was "cut in the glass the letters XXX," said bottle being about half full of some liquid. Witness testified that he bought said bottle and contents from defendant on July 14, 1902, and gave said bottle, with seal unbroken, to Tip Ross, who kept it until in October, 1902, when witness took it to Waco, and had E. E. Reid to analyze it, and that it contained 5 per cent. alcohol. The sale for which defendant was prosecuted occurred on July 5th, nine days prior to the transaction above mentioned. The witness Southall further testified that he did not know whether the liquid sold on the 5th was the same as that contained in the bottle purchased on the 14th; that he was not an expert; and the bottle sold on the 5th was not labeled or branded. Reid testified that he analyzed the contents of the bottle in Waco, and found it contained 5 per cent. alcohol. The bottle was sufficiently identified as the one bought by Southall on the 14th of July. The bottle was exhibited to the jury, and after the cork was drawn, and witness Southall tasted its contents, the jury were permitted to smell the contents of the bottle; and Southall testified that he did not think the contents tasted quite like the bottle sold on the 5th, as it did not taste quite as strong. Objection was urged to this, because of a want of evidence to show that the contents of this bottle was the same as that bought by Hicks on the 5th; and because there was no evidence introduced to show that the liquid contained in the bottle was the same kind, brand, or manufacture as that sold on July 5th, or that it contained the same percentage of alcohol; and because it is not permissible for the jury to examine the contents of the bottle or smell the same, and they had no proven liquor of the kind sold Hicks by which to compare with that introduced in evidence. And it was further claimed that all this testimony was inadmissible, irrelevant, and prejudicial to defendant. The court qualifies the bill with the statement: "The bottle of liquor was given the jury to smell, and before they were through smelling it defendant objected, and the court then instructed the jury that they would not consider the smell of the liquor as evidence for any purpose whatever." This testimony was inadmissible so far as it relates to being handled and smelled by the jury. Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661. But the evidence was inadmissible on other grounds. In order to make a comparison or test under the circumstances stated, the liquors, or the contents of the two bottles, must be shown to be the same. On this question there was no evidence introduced. There was no basis for the comparison; and if we refer to the evidence of Southall, as found in the statement of facts, it was shown that the two liquors were dissimilar; the one introduced before...