
    WHITTEN v. STATE.
    (No. 7456.)
    (Court of Criminal Appeals of Texas.
    April 11, 1923.
    Rehearing Denied June 20, 1923.)
    1. Intoxicating liquors <3=>222 —Indictment need not negative exceptions.
    • Since • the. amendment of the Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seep), taking exceptions out of the enacting section of the law," an indictment need not negative such exceptions.
    2. Intoxicating liquors (3=>23l — Permitting witness to testify that what was in fruit jar sold by accused looked like whisky held not error.
    In liquor selling prosecution, where a state’s witness had testified that he had purchased from accused white corn whisky in a fruit jar, and that A. was present, it Vas proper for A. to testify that what was in the fruit jar looked like corn .whisky.
    3. Intoxicating liquors (3=>224 — Defendant must prove case within exceptions to statute.
    In liquor selling prosecution, the burden of showing that the sale was for one of the excepted purposes was on accused; hence a charge that before the jury could convict they must find that the liquor was not sold for one of the excepted purposes was properly refused.
    4. Intoxicating liquors (@=>Í227 — Proof of discharge from army held not admissible to prove good character at time of trial.
    In liquor selling prosecution, accused’s discharge from the army líela not admissible as affecting accused’s character at the time of trial.
    On Motion for Rehearing.
    5. Criminal law (@=>1092(11) — Qualifications to bills of exceptions not objected to deemed acoepted.
    Where accused made no objection in the trial court to qualifications upon the bills of exceptions, such qualified bills must be deemed accepted by accused, and objections thereto cannot be considered.
    6. Criminal law (@=>1031 (4) — Plea of jeopardy not- presented on trial not considered on appeal.
    Where there was no plea of jeopardy presented upon the trial, the question cannot be considered on appeal.
    Appeal from District Court, Red River County; Austin S. Dodd, 'Special Judge.
    Jess Whitten was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    T. T. Thompson, of Clarksville, for appellant. (
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Red River county of selling intoxicating liquor, and his punishment fixed at confinement in the - penitentiary for a period, of one year.

The charge in the indictment was the sale of intoxicating liquor to one Jacobs. Jacobs testified that on the occasion in question he bought from appellant a quart of whisky some time in March or April, 1922.

Appellant has several bills of exception; the first complaining of the court’s refusal to quash the indictment, his motion being based on the fact that said instrument failed to negative the exceptions contained in the Dean law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.). This indictment was returned subsequent to the amendment of the Dean law which took said exceptions out of the enacting section of the law, since which time this court has held it not. necessary to negative said exceptions. Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472. There are many other decisions of this court to the same effect. We desire to commend the action' of the learned trial judge in the careful qualifications placed by him upon the bills of exception.

Appellant presents three bills of exception to the testimony of state witness Artis. In one it' is complained that said witness was permitted to testify that, while he did not know what was in the fruit jar involved in the transaction between appellant and Jacobs, it looked like white corn whisky. It appears from the court’s qualification that this witness was testifying in rebuttal, and after the appellant had denied making a sale of any whisky to state witness Jacobs. Jacobs had given positive testimony to the effect that he had purchased white corn whis-ky from appellant in a fruit jar and that Artis, the witness above mentioned, was present. We think it permissible for Artis, upon rebuttal on behalf of the state, to say that what was in the fruit jar looked like corn whisky.

The bill complaining of the fact that Artis testified that he was a married man and had two small children is so qualified by the trial court as to appear that the testimony came in practically Without objection. The other bill complaining of the testimony of this- witness presents appellant’s objection to his stating that he saw defendant give witness Jacobs $2.50. The qualification to this bill sets forth that Artis testified that he saw the money pass between appellant and Jacobs, and that the money was in greenbacks, as witness remembered it, and that said witness did. not testify at all that the money passed from the defendant to Jacobs, but that all the money passed from Jacobs to the defendant.

It is complained by another bill of exceptions that the court refused to instruct the jury that before they could convict they must find that tile intoxicating liquor was not sold for mechanical, etc., purposes. 'Since the rendition of the opinion in the case of Robert v. State, 90 Tex. Cr. R. 133, 234 S. W. 89, we have uniformly held that the burden of showing that the sale was for'one of the excepted purposes was upon the defendant, and the court properly refused the charge in question. There further appears a qualification of the'trial court to the bill of exceptions which states that there was no testimony tending to .show that the liquor in question was sold - for any of the excepted purposes.

It is also complained that appellant offered in evidence his discharge from the United States army to prove his good moral character. We do not think such evidence admissible as affecting the character of the accused at the time of this trial, and the state admitted that during the time appellant was in the service he bore a good character and reputation as a soldier. We are not apprised by the hill of exceptions of any manner in which the good moral character of the appellant was made by him an issue in the case.

The evidence being amply sufficient to support the verdict, and none of the contentions of appellant appearing to be sound, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant files an able brief in support of his motion for rehearing, and'in the light of the numerous authorities we have again reviewed the record. We regret we cannot consider appellant’s objections to the qualifications placed upon the bills of exception; no such objection having -been made in the trial court, and we cannot consider an effort to so attack the bills of exception in a motion for rehearing. We must treat such qualified bills as having been accepted in their present form by the appellant.

The purchaser of the liquor alleged to have been sold swore positively that he bought from appellant a quart of white corn whisky for which he paid him $2.50. The state rested its case on the testimony of this witness. Appellant then took the stand and swore positively that he did not sell said witness on the occasion in question liquor of any kind. The state then introduced witness Artis, who testified that he saw appellant and the alleged purchaser on the occasion in question and that one had a jar with some kind of liquor in it, and the other had money in his hand which he paid over. We again state that we can perceive no- error in said witness being permitted to state that the liquor in the jar looked like whisky. There was no plea of jeopardy presented upon the trial of the case, and this court cannot now consider that question in connection with this case. We have carefully gone over the matters involved as presented by the various bills of exception,’ and conclude that our former decision of the case was correct. .

The motion for rehearing will be overruled: 
      
      £=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     