Thompson v. State (28 S.W.2d 153, 1930)

MARTIN, J.

Offense, the unlawful possession of intoxicating liquor for the purpose of sale; penalty, two years in the penitentiary.

A witness for the state testified to the sale of a pint of whisky byj appellant to him for which he paid him a dollar and a half. He was corroborated by other witnesses. The pint of whisky he purchased was taken from him by an officer.

The pint of whisky so taken was labeled by the officer and placed in the jail. There it was afterwards found by such witness with his label still on it and was introduced at the trial. OomplainMs made that it was not properly identified as the same whis-ky nor shown to be in the same condition ais it was when taken from the state’s witness. The officer testified to its being the same and to the identity of the label, and we think the objection went to the weight instead of the admissibility of the evidence. However, it 'further appears in the record that appellant himself proved that a pint of whisky was in possession of this witness at the time the state claims he was at appellant’s house. In. other words, it appears from both the testimony for the state and the appellant that this witness actually had a pint of whisky and left appellant’s house with same, and since the introduction of the pint only tended to prove this fact, which was not a disputed issue, we think the error, if any, in admitting this testimony was harmless.

Complaint is made of the following remark of the district attorney made to the jury in his argument: “This man Goulde, you can look at his face, he has the earmarks on it of not telling the truth.”

This is claimed to have been prejudicial. The trial court and the jury saw this witness, observed his demeanor, his attitude, and his face. The jury particularly saw the same things the district attorney saw. The remark