Bell v. State (29 S.W.2d 389, 1930)

'CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two and one-half years.

Appellant calls in question the sufficiency of the evidence. The state relied entirely upon the testimony of three witnesses. Appellant offered no testimony. The purchaser of the whisky,. Hal Hayes, testified on direct examination to having bought two pints of whisky on the 18th of January, 1929. Touching the identity of the seller, he said: “I was told it was Lee Bell I bought it from — he was pointed out to me as Lee Bell. As to whether I know that defendant, Lee Bell, there, I thought I knew him until yesterday morning I was talking to him and I didn’t know it was him until another party came up and talked with him. That is the first time I have seen ¡him since the 18th of January, 1929, to know him. * * * I saw the defendant when I bought the whisky.”

Questioned by the court, the witness stated that some parties who were with him at the time told him appellant was the seller. Further answering questions propounded to him by the court, he testified that he could ¡not swear that appellant was the man froip whom he bought it. Continuing his testimony on direct examination, the witness said: “I signed that statement (indicating instrument exhibited by counsel). That was the day after I bought the whisky. I thought at the time I bought it I knew who I bought it from. It was supposed to have been Lee Bell at the time I bought it, but I didn’t know him personally, but according to others’ statement it was supposed to be. I hadn’t been introduced' to him; I certainly hadn’t.”

Upon cross-examination, the witness testified that the officers had threatened to send him to the penitentiary unless he disclosed the name of the seller of the whisky; and that said officers suggested to him that it was appellant was had sold him the whisky. Again, the witness testified that he did not know, of his own personal knowledge, that he had purchased the whisky from appellant.

The second witness called by the state stated that he accompanied Hayes to the place where he bought the whisky, but that he remained in the automobile while Hayes secured the whisky. He said that he saw appellant meet Hayes, and that later Hayes returned with some whisky. It appears that appellant liad a brother who resembled him. On cross-examination the witness said: “I don’t know whether at that time I knew the difference between Eee Bell and his brother, Lewis Bell. I just heard it was Lee Bell; I couldn’t say for sure. I think it is about right that I don’t know of my own personal knowledge whether it was him or not, only what I heard.”

On .redirect examination, the witness testified that Hayes was talking to Lee Bell when he saw him walk away.

The third witness called by the state testified, on direct examination, that he saw Hayes talking to appellant. On cross-examination, he testified as follows: “As to whether it was Lee Bell or Lewis Bell he was talking to, weli I don’t know. I didn’t know either one; all I knew was Bell and at the distance I couldn’t state which one it was. I don’t know which one it was.”

On redirect examination the witness stated that he did not know whether it was appellant or not that he saw Hayes with; that he would not say that it was appellant.

We deem the evidence insufficient to identify appellant. It was incumbent upon the state to prove the guilt of appellant beyond á reasonable doubt. The testimony goes no 'further than to show that Hayes bought two pints of. whisky from some man who had been pointed out to him as being appellant. See Green v. State, 94 Tex. Cr. R. 637, 252 S. W. 499, and authorities cited.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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.