
    WRIGHT v. STATE.
    (No. 9040.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied June 10, 1925.)
    1. Indictment and information (&wkey;l 1 i (I) — Motion to quash indictment for failure to negative exceptions properly overruled.
    Under Acts 1st Called Sess. 37th Leg. (1921) e. 61 (Vernon’s.Ann. Pen. Code Supp. 1922, art. 588% et seq.), making it unnecessary to negative exceptions in charging offenses committed after act was effective, a motion to quash indictment for failure to negative exceptions was properly overruled.
    2. Criminal law &wkey;l 169(2) — Improper reception of testimony bearing on time of commission of offense held harmless, where other testimony positively fixed such time.
    Where a witness was improperly permitted to testify as to conversations with district attorney bearing on time of accused’s commission of offense, such eTror was harmless, where other testimony independent thereof positively fixed such time.
    3. Criminal law <&wkey;l086(l4) — Bill of exceptions to charge not considered, where timely written objections were not presented pursuant to statute.
    Bill of exceptions to portion of charge not considered, in absence of showing that timely written objections were presented pursuant to Vernon’s Ann. CodeH-ir. Proc. 1916, art. 735.
    Appeal from District Court, Fannin County ; H. G. Evans, Special Judge.
    Bud Wright was convicted for manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Cunningham & Lipscomb, of Bonham, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s’ Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

The indictment alleged the offense to have occurred on or about the 2d day of December, 1921. The exceptions were not negatived, and the motion to quash the indictment, because of this omission, was overruled. The amendment passed at First Called Session. Thirty-Seventh Legislature (chapter 61 [Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.]), made it no longer necessary to negative the exceptions in charging offenses occurring after the amendment became effective on November 15, 1921. Stringer v. State, 92 Tex. Cr. R. 26, 241 S. W. 159; Mullins v. State, 93 Tex. Cr. R. 474, 247 S. W. 285. The court properly overruled the motion to quash, but guarded defendant’s rights by instructing the jury that, if the offense was committed before November 15, 1921, a conviction could not be had under the present indictment.

Roy Taylor and Walter Taylor testified to seeing appellant engaged in the manufacture of whisky. Defendant offered no defense save questioning the success of the state in showing that the transaction occurred subsequent to the 15th day of November, 1921. Complaint is made that the state was permitted to prove by Roy Taylor that the district attorney, outside the courtroom, and not in defendant’s presence, had shown witness the warrant of arrest for defendant which was dated December 20, 1921,- and which also showed when the arrest was made, and that witness had told the district attorney that he knew defendant was arrested within a few days after the alleged offense, and that witness was able to fix the date of the offense by the warrant of arrest and the statement of the district attorney. The conversation between witness and the district attorney would not be admissible, unless it became so by reason of some -cross-examination of witness by defendant. But even though improperly received, we see no possible injury to defendant in view of other evidence fixing the date of the offense without reference to the incident complained of. Roy Taylor testified that he and his brother commenced trapping the last of November or first of December, and they saw defendant making the whisky about four days after they set their traps. Walter Taylor fixes the offense as having occurred not more than 10 days before Deputy Sheriff Leemari arrested defendant. Leeman testified that he filed complaints against defendant on December 22d, having arrested him the day before under a search warrant. The date of the offense is thus fixed so positively and without dispute, as being subsequent to November 15th, that we regard the incident complained of entirely harmless.

We find two bills of exception criticizing portions of the charge. They fail to show that written objections were timely presented as required by article 735, Vernon’s Ann. Code Cr. Proc. 1916, and may not be considered.

The judgment is affirmed.

On Motion for Rehearing.

The case was tried before Hon. H. G. Evans, Special Judge. In the motion for rehearing appellant calls attention to the fact that, in the record on file in this court, there appeared no entry showing the authority of said special judge to act as such. By supplemental transcript now before us, the state shows the election of said special judge by the bar of Fannin county to hold court in the absence of the regular judge, and the oath taken by said special judge.

In our judgment, the other questions raised were properly disposed of in the original 'opinion,

The motion for rehearing is overruled. 
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