
    ARENSON v. STATE.
    (No. 8351.)
    (Court of Criminal Appeals of Texas.
    May 14, 1924.)
    1. Intoxicating liquors <&wkey;236(6/2) — Evidence held to sustain conviction for possession.
    Evidence held to sustain conviction for possession.
    2. Criminal law 1092(14)* — Bill of exception complaining that indictment had been returned to court other than that in which defendant tried held not to present error.
    Bill of exception, alleging indictment was returned to court of different district than that in which defendant was tried, and never transferred to district where tried, held not to present error, in abse.nce of certification that matters complained of were in fact true.
    3. Criminal law <&wkey;l09I(2) — Bill of exception complaining that witness was permitted to testify after hearing defensive testimony held not to present error.
    Bill of exception, complaining that officer, after testifying for state, was permitted to remain in courtroom and hear defensive testimony and subsequently to testify further, held not to present error, in absence of showing as to 'nature of testimony last given and its relation to defensive testimony.
    4. Criminal law &wkey;31144(12) — Exception complaining of receipt of alleged hearsay evidence held not to present error.
    Bill Complaining of receipt of testimony objected to as hearsay, failing to state when and under what circumstances remark complained of was made, held not to present error in view of presumption in favor of trial judge’s ruling.
    5. Criminal law &wkey;>8l5(5) — Failure of instruction in prosecution for possession of liquor to submit defensive issue held reversible error.
    In prosecution of proprietor of cold drink stand for possession of intoxicating liquor, failure of instruction to submit defense that liquor found on counter belonged to and x had been brought in by patrons then standing before counter held reversible error.
    other cases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes
    Appeal from District court, Jefferson County ; Geo. G. O’Brien, Judge.
    Lewis Arenson was convicted of possessing intoxicating liquor, and appeals.
    Reversed and remanded.
    Howth, Adams, O’Eiel & Hart, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the possession of intoxicating liquor for the purpose of sale with an assessed punishment of two years in the penitentiary.

Appellant was the proprietor of a cold drink stand in the city of Port Arthur. On the day of the arrest, officers' entered his place of business and found him standing behind a counter with his hand upon a bottle of whisky which was upon the counter behind a root-beer keg. Upon the counter was a dollar bill, and immediately in front of it wore two men. Also, upon the counter were two small whisky glasses. It is not necessary to set out the testimony further, but it authorized the. jury in reaching the conclusion that from the situation of the parties appellant was preparing to serve the two customers with whisky. Appellant himself testified that the whis-ky found by the officers did not belong to him, but that it was brought in by one of the two men who were standing at the counter and was placed there by one of them, and that they had asked for a bottle of soda, and that he (appellant) was preparing to serve them with the soda water when the officers came in.

A bill of .exception recites that before the announcement of ready for trial appellant called to the attention of the judge, of the Fifty-Eighth judicial district, in which this case was tried, that this case was on the docket of the court of the Sixtieth judicial district, and that the indictment had .been returned into the Sixtieth district court and had never been transferred to the Fifty-Eighth district court. The bill does not certify that the matters complained of by appellant were in fact true. The indictment shows to have been returned by a grand jury organized for the district court of Jefferson county without any statement that it was the court of any particular district. As found in the record, the bill presents no error.

Motion to quash the indictment was predicated upon many grounds attacking the constitutionality of the law under which this prosecution is had. The questions have been so frequently decided adversely to appellant’s contentions that we do not feel called upon to review the matter again.

An officer testified in the development of the state’s case in chief. When he was called again in rebuttal, objection was urged because he had remained in the courtroom and heard the defensive testimony in violation of the rule which had been invoked by appellant. The bill is insufficient to enable us to determine- whether the court abused his discretion. It is not. stated what the witness’ evidence was upon being recalled. It may have had no relation to what any witness for appellant testified.

Complaint is made because an officer was permitted to testify that a man named Smith had stated “That he was there buying a drink,” the objection being that it was hearsay. The bill gives us no information as to when or under what circumstances the remark occurred. The presumption is that the ruling of the learned trial judge was correct, and a bill complaining thereat should be full enough to manifest the alleged error. See authorites collated under section 207, Branch’s Ann. P. C.

By a specific exception to the court’s charge it was pointed out that there was an omission to submit the defensive issue, in that appellant had testified that he was not the owner of the whisky, and that it was not in his possession, hut belonged to the parties present, and had been brought into his place of business and placed on the counter by them at the time they called for the soda water. Tf this was true, or the jury believed it to be true, or if the evidence raised in the jury’s mind a reasonable doubt upon the question, appellant was entitled to an acquittal. The state relied alone upon this particular transaction to show guilt. It was explained by appellant in a way entirely consistent with his innocence. The issue of fact thus raised should have been passed to the jury under appropriate instructions. The exception to the charge was specific because of its omission therefrom. Richardson v. State, 91 Tex. Cr. R. 318, 239 S. W. 218, 20 A. L. R. 1249; Forrester v. State, 93 Tex. Cr. R. 415, 248 S. W. 40, 26 A. L. R. 537.

For the failure of the court to submit said defensive issue, the judgment must be reversed, and the cause remanded.  