HARPER, Judge.
Appellant was prosecuted for violating the local option law, adjudged guilty, and his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail.
The facts show that appellant sold to John T. Deadweiler a drink called “Hiawatha.” It appears that appellant first sold two casks of Hiawatha to Louis Restella, representing that it was nonintoxicating. After investigation Mr. Restella declined to handle sanie, he being of the opinion that it would produce intoxication. Appellant was the agent and representative of the Houston Ice & Brewing Company, whom he says manufacture both beer and this drink called Hiawatha. He admits that he first sold several cases of Hiawatha to Restella and delivered it to him in Marion County; that when Restella refused to handle and sell it, he made arrangements with Deadweiler to handle the drink and sell it, and instructed a drayman to go to Restella’s and get the casks and carry them to Deadweiler. That Deadweiler paid him $10 a cask for those delivered to him. That outside of this sale and delivery, it was his usual custom t'o take orders for Hiawatha and have it shipped from Houston or Marshall to the purchaser. Appellant at this time was in the saloon business at Marshall, and when he would order a mixed car of beer and Hiawatha, the Hiawatha would be unloaded at Jefferson where prohibition was in force, and the beer carried on to Marshall where he was engaged in the saloon business, saying that he had no need for Hiawatha at Marshall, as the people there would not buy it. There is a sharp conflict in the testimony as to whether Hiawatha would produce intoxication. The witnesses for the State testify that it would, while the witnesses for the defendant are equally positive that it will not, when drank in quantities that can usually be drunk. The question of a sale is proven beyond question; in fact, defendant admits making the sale and delivery of two casks at ten dollars per cask to Deadweiler in Marion County, the only question being, was the liquor sold an intoxicating liquor?
1. Appellant’s first ground is that the court erred in not granting his motion for a continuance.' The application fails to state that witnesses were not absent “by the procurement and consent of defendant” and is, therefore, insufficient in law. The application further fails to state whether it is the first or second application, but inasmuch as the case was filed April 30, 1908, and this trial took place on April 26, 1911, this court will presume that it is at least a second application, and as the testimony would have been cumulative of that testified to by a number of other witnesses, had the application been in compliance with the statute, the court would not have erred in overruling it.
2. There was no error in refusing to quash the information and complaint. The date of the alleged sale was anterior to the filing of the information and complaint, and the fact that the complaint states: “R. W. Walden, who being duly sworn, says on oath that he has good reason to believe and does believe,” etc., and the information alleges that “Horace Vaughn, district attorney of the Fifth Judicial District now here in the District Court of Marion County, Texas, does present this information founded upon testimony taken in behalf of the State under oath,” etc., does not present such a variance as vitiates the complaint or information. The complaint is sworn to by Mr. Walden as required by law, and the information is in full compliance with art. 466 of the Code of Criminal Procedure, and has in it all that is required by that article. If a complaint has been in fact made and filed, it is not necessary that the information shall so state. Johnson v. State, 17 Texas Crim. App., 230.
3. In bill of exceptions Ho. 2 appellant complains that the court erred in permitting the witness Deadweiler to answer that appellant had shipped Hiawatha to others in Jefferson. Inasmuch as the witness also. testified that appellant told him he was shipping to these other parties, and if at any time he got out, he could get it from the persons named, and pay him for it, it was not error to admit the testimony.
4. In his third hill appellant complains that while the witness Deadweiler was on the witness stand, he was asked if he had not been convicted for selling the same stuff, to which question it is alleged the witness answered, “Yes,” while an objection was being made by defendant’s attorney. The bill further shows that the court “on his own motion promptly excluded the question and answer and instructed the jury to wholly disregard such question and answer and to give them no consideration whatever, but to absolutely ignore them and pay no attention to them.” The bill presents no error.
5. The court did not err in refusing to give appellant’s special charges Hos. 1 and 2, said charges defining intoxicating liquor improperly, requiring the liquor to he such when drank in “such quantities as the human stomach would practically bold produce such intoxication as would result in unconsciousness or delirium.” Delirium hardly ever occurs except in those cases where intoxicants are drank to excess for a long continued period of time, and the charges re
quested are not the law. The court gave a correct definition, instructing the jury: “Intoxicating liquor, as used in this charge, is a liquor intended for use as a beverage or capable of being so used which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such a proportion that it will produce intoxD cation when taken in such quantities as may practically be drunk.”
6. Neither did the court err in failing to give special charge No. 3 requested. It was not applicable to the evidence, in that the evidence showed that appellant sold Deadweiler two casks of Hiawatha already in Jefferson, and delivered same to him, and there was no question of taking orders and shipping from other points as to these two casks.
7. Neither did the court err in refusing to give the following special charge requested: “You will find the defendant not guilty because the law changing the penalty to a felony, and an election having been held in Precinct No. 3 of Marion County, Texas, since the felony statute went into effect, repealed the misdemeanor statute.” The statute making a sale of intoxicating liquor a felony became a law July 24, 1909. The complaint and information in this case were filed in April, 1908, and alleged the sale to have taken place in March, 1908. Article 407 of the Penal Code provides that the repeal of prohibition shall not exempt from punishment any person who may have offended against the provisions of the law while it was in force, and art. 5 of the Penal Code provides that “in every case the offender shall be tried under the law in force when the offense was committed, and if convicted, punished under that law/’ providing that if penalty be ameliorated, the defendant shall be given the benefit of such lesser penalty. We do not suppose that anyone would insist that a term in the penitentiary would be an “amelioration of the penalty” assessed in this case.
8. The only serious question in the case is that raised by the last ground in the motion that “the jury was improperly influenced by the testimony of the witness Deadweiler that he had been convicted for selling the same kind of liquor.
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HARPER, Judge.
Appellant was prosecuted for violating the local option law, adjudged guilty, and his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail.
The facts show that appellant sold to John T. Deadweiler a drink called “Hiawatha.” It appears that appellant first sold two casks of Hiawatha to Louis Restella, representing that it was nonintoxicating. After investigation Mr. Restella declined to handle sanie, he being of the opinion that it would produce intoxication. Appellant was the agent and representative of the Houston Ice & Brewing Company, whom he says manufacture both beer and this drink called Hiawatha. He admits that he first sold several cases of Hiawatha to Restella and delivered it to him in Marion County; that when Restella refused to handle and sell it, he made arrangements with Deadweiler to handle the drink and sell it, and instructed a drayman to go to Restella’s and get the casks and carry them to Deadweiler. That Deadweiler paid him $10 a cask for those delivered to him. That outside of this sale and delivery, it was his usual custom t'o take orders for Hiawatha and have it shipped from Houston or Marshall to the purchaser. Appellant at this time was in the saloon business at Marshall, and when he would order a mixed car of beer and Hiawatha, the Hiawatha would be unloaded at Jefferson where prohibition was in force, and the beer carried on to Marshall where he was engaged in the saloon business, saying that he had no need for Hiawatha at Marshall, as the people there would not buy it. There is a sharp conflict in the testimony as to whether Hiawatha would produce intoxication. The witnesses for the State testify that it would, while the witnesses for the defendant are equally positive that it will not, when drank in quantities that can usually be drunk. The question of a sale is proven beyond question; in fact, defendant admits making the sale and delivery of two casks at ten dollars per cask to Deadweiler in Marion County, the only question being, was the liquor sold an intoxicating liquor?
1. Appellant’s first ground is that the court erred in not granting his motion for a continuance.' The application fails to state that witnesses were not absent “by the procurement and consent of defendant” and is, therefore, insufficient in law. The application further fails to state whether it is the first or second application, but inasmuch as the case was filed April 30, 1908, and this trial took place on April 26, 1911, this court will presume that it is at least a second application, and as the testimony would have been cumulative of that testified to by a number of other witnesses, had the application been in compliance with the statute, the court would not have erred in overruling it.
2. There was no error in refusing to quash the information and complaint. The date of the alleged sale was anterior to the filing of the information and complaint, and the fact that the complaint states: “R. W. Walden, who being duly sworn, says on oath that he has good reason to believe and does believe,” etc., and the information alleges that “Horace Vaughn, district attorney of the Fifth Judicial District now here in the District Court of Marion County, Texas, does present this information founded upon testimony taken in behalf of the State under oath,” etc., does not present such a variance as vitiates the complaint or information. The complaint is sworn to by Mr. Walden as required by law, and the information is in full compliance with art. 466 of the Code of Criminal Procedure, and has in it all that is required by that article. If a complaint has been in fact made and filed, it is not necessary that the information shall so state. Johnson v. State, 17 Texas Crim. App., 230.
3. In bill of exceptions Ho. 2 appellant complains that the court erred in permitting the witness Deadweiler to answer that appellant had shipped Hiawatha to others in Jefferson. Inasmuch as the witness also. testified that appellant told him he was shipping to these other parties, and if at any time he got out, he could get it from the persons named, and pay him for it, it was not error to admit the testimony.
4. In his third hill appellant complains that while the witness Deadweiler was on the witness stand, he was asked if he had not been convicted for selling the same stuff, to which question it is alleged the witness answered, “Yes,” while an objection was being made by defendant’s attorney. The bill further shows that the court “on his own motion promptly excluded the question and answer and instructed the jury to wholly disregard such question and answer and to give them no consideration whatever, but to absolutely ignore them and pay no attention to them.” The bill presents no error.
5. The court did not err in refusing to give appellant’s special charges Hos. 1 and 2, said charges defining intoxicating liquor improperly, requiring the liquor to he such when drank in “such quantities as the human stomach would practically bold produce such intoxication as would result in unconsciousness or delirium.” Delirium hardly ever occurs except in those cases where intoxicants are drank to excess for a long continued period of time, and the charges re
quested are not the law. The court gave a correct definition, instructing the jury: “Intoxicating liquor, as used in this charge, is a liquor intended for use as a beverage or capable of being so used which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such a proportion that it will produce intoxD cation when taken in such quantities as may practically be drunk.”
6. Neither did the court err in failing to give special charge No. 3 requested. It was not applicable to the evidence, in that the evidence showed that appellant sold Deadweiler two casks of Hiawatha already in Jefferson, and delivered same to him, and there was no question of taking orders and shipping from other points as to these two casks.
7. Neither did the court err in refusing to give the following special charge requested: “You will find the defendant not guilty because the law changing the penalty to a felony, and an election having been held in Precinct No. 3 of Marion County, Texas, since the felony statute went into effect, repealed the misdemeanor statute.” The statute making a sale of intoxicating liquor a felony became a law July 24, 1909. The complaint and information in this case were filed in April, 1908, and alleged the sale to have taken place in March, 1908. Article 407 of the Penal Code provides that the repeal of prohibition shall not exempt from punishment any person who may have offended against the provisions of the law while it was in force, and art. 5 of the Penal Code provides that “in every case the offender shall be tried under the law in force when the offense was committed, and if convicted, punished under that law/’ providing that if penalty be ameliorated, the defendant shall be given the benefit of such lesser penalty. We do not suppose that anyone would insist that a term in the penitentiary would be an “amelioration of the penalty” assessed in this case.
8. The only serious question in the case is that raised by the last ground in the motion that “the jury was improperly influenced by the testimony of the witness Deadweiler that he had been convicted for selling the same kind of liquor. That this testimony was considered by the jury in arriving at their verdict, and was discussed by the jury while deliberating on the case.” Appellant does swear to the motion, and states that he is unable to secure affidavits to these facts. However, on hearing the motion for a new trial, the court permitted the jurors to be sworn. Paul Fernard testified that it was discussed, and he heard it mentioned by juryman Stut'ts. That he stated' it was a similar case to the Deadweiler c£^e, and witness further stated there was no argument about it, and such conversation or statement had no influence on him. Mr. Stutts swears positively he made no such statement, and he heard no one else make such statement. One or two other jurymen say that the fact that Deadweiler had been selling this Hiawatha was mentioned in the jury room, while others say that Deadweiler’s testimony was discussed, he being a witness in- this case. Of course, it was not proper to refer to the fact that Deadweiler had been convicted for selling Hiawatha, if it was done, but as the question of
whether it was mentioned or not is a question of fact, and the court hearing the motion finds it was not done in overruling the motion, and the further fact that the only juryman named as the man who used the language positively denies doing so, we do not feel authorized to disturb the verdict. Jurymen should not discuss any fact not in evidence, and if the evidence was clear and undisputed that such had been done, a different question would be presented; but inasmuch as the question of fact is a disputed one, and even those who say the matter was mentioned, say it did not influence them in arriving at a verdict, not such a case is presented as should work a reversal.
As hereinbefore stated, there was a sharp conflict in the testimony, •but if the jury believed the State witnesses, a case was made.
The judgment is affirmed.
Affirmed.