
    KLEIN v. STATE.
    (No. 9535.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.)
    1. Intoxicating liquors <@=>216 — Indictment not defective for n6t designating specific liquor.
    An indictment for possession of intoxicating liquor is not defective because it does not designate particular kind of intoxicating liquor possessed.
    2. Criminal law <§=>l137(6)— Exclusion of evidence not error, where court thereafter offered counsel opportunity to introduce it, which he rejected.
    In prosecution for possession of intoxicating liquor, accused cannot predicate error on exclusion of testimony that his wife was sickly, where court’s explanation to bill shows that, when wife testified that accused made liquor, for her to use as medicine, she was permitted to testify as to her physical condition, and the court then advised counsel for accused that he would admit evidence theretofore éxcluded, but counsel declined to make use of opportunity offered.
    3. Criminal law <§=>351 (4) — -Conduct of accused in resisting officers admissible in prosecution for possession.
    Evidence of resistance by accused to officers, and that he used profane- language, and called for his gun when officers were making search for liquors, held admissible in prosecution for possession.
    4. Criminal law (@=>404(4) — Liquor seized admissible in prosecution for possession.
    Whisky in containers seized under search warrant is properly admitted in a prosecution for unlawful possession.
    Appeal from District Court, Gillespie County ; J. H. McLean, Judge.
    Albert Klein was convicted of possessing intoxicating liquor fork sale, and he appeals.
    Affirmed.
    See, also, 277 S. W. 1073.
    W. O. Linden, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale. Punishment is one year in the penitentiary.

The indictment charged the’possession of spirituous, vinous, and malt liquor. The point was made by motion to quash that the indictment did not designate the kind of liquor, and therefore failed to put accused on notice of the particular charge against him. This contention has been settled against appellant. Travinio v. State, 92 Tex. Cr. R. 140, 242 S. W. 242; Mayabb v. State, 95 Tex. Cr. R. 549, 255 S. W. 189; Donaldson v. State, 97 Tex. Cr. R. 217, 260 S. W. 185; De Laney v. State, 98 Tex. Cr. R. 98, 263 S. W. 1065.

Appellant complains in bills 2 and 3 that the court would not permit him to prove by two witnesses that appellant’s wife was a frail, delicate, weak, and sickly woman. This evidence appears to have been excluded, when offered, as being wholly immaterial to any issue then appearing in the case. The court’s explanation to the bills shows that, .when appellant’s wife testified, she claimed he had made some liquor for her to use as medicine She was permitted to testify as to her physical condition. That, when the'issue of having the liquor for medicinal purposes thus came into the case, the court advised appellant’s attorney that he would admit the evidence which had been theretofore excluded, and appellant declined to avail himself of the opportunity thus afforded. As explained, the bills show no error.

The evidence shows that officers armed with a warrant searched appellant’s premises, finding in his residence a .quantity of “home brew,” and, buried in his garage, 11 gallons of whisky in jugs. After- reading the search warrant to appellant, .the sheriff told him to remain with another officer outside the house. After the sheriff went into the house, appellant insisted on also going in, resisted the efforts of the officers to keep him out, used profane language, and called to his wife and others to bring his gun. Under the facts, no- error occurred in admitting proof of his conduct. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 460, 160 S. W. 361; Walker v. State, 74 Tex. Cr. R. 645, 169 S. W. 1156.

Bill No. 1 complains because tbe state exhibited before tbe jkry and introduced in evidence the 11 gallons of whisky contained in the jugs found in the garage. It had been identified as the liquor found there, and was properly received in evidence.

Finding nQ error in the record, the judgment is affirmed. 
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