
    MAJORS v. STATE.
    (No. 8828.)
    (Court of Criminal Appeals of Texas.
    May 6, 1925.
    Rehearing Denied June 10, 1925.)
    1. Criminal law <&wkey;409 — Uncorroborated incriminatory statements of accused sufficient to support conviction, where part of res gestae.
    In prosecution for manufacturing liquor, incriminatory statements of accused, at time of arrest at still wMle it was in operation, that he was not making poisonous whisky but good whisky, and that “you have got me,” held sufficient to sustain conviction without other corroborating testimony, statements being part of res gestse.
    2. Intoxicating liquors <&wkey;>236(4) — Ordinarily mere presence at still not sufficient to warrant conviction.
    Ordinarily mere presence of accused at still, where whisky was being made, would not be sufficient to warrant conviction, for manufacturing same.
    
      3. Intoxicating liquors <&wkey;239(2) — Refusal of charge, that accused could not be convicted on mere presence at still, not error.
    Where accused admitted, on arrest at still, while it was being operated, that he was making whisky, and he did not testify in his' own behalf, or introduce evidence contradicting those admissions; refusal to charge f;hat He could not . be convicted for mere presence alone held not error, there being no such issue raised.
    4. Criminal law <@=^489 — Refusai to require sheriff to state how much of accused’s whis-ky he drank not error.
    In prosecution for manufacturing liquor, where sheriff, testified that he tasted liquor found at still, and that it was whisky, and that he had had 40 years’ experience in tasting and smelling whisky, and that he did not ]mow how much he drank, refusal to require him to state how much of it he drank held not error.
    , 5. Criminal law <&wkey;276 — Oral motion, question- ' ing jurisdiction of trial court by reason of ' illegal transfer, not sufficient to predicate reversal.
    Where indictment was regular on its face and did not show that it was not presented and filed in trial court, oral motion, questioning jurisdiction of trial court for reason that case 'had not been legally transferred,, held insufficient to warrant reversal, in view of Vernon’s Ann. Code Cr. Proc. 1916, arts. 573, 575, 577.
    On Motion for Rehearing.
    6. Witnesses <&wkey;48(l) — Codefendaiit, under suspended sentence for same ‘offense, not competent to testify.
    Under Yernon’s Ann. Code Cr. Proc. 1916, art. 791, and Vernon’s Ann. Pen. Code 1916, art. 91, codefendant, under suspended sentence for same ‘offense charged to accused, held not competent to testify in accused’s behalf, in. view of Vernon’s Ann. Code Cr. Proc. 1916, arts. 865b-865f, as to suspended sentences.
    ■ Commissioners’' Decision.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    E. R. Majors was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    Howth, Adams, O’Fiel & Hart, of Beau-' mont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

Appellant was convicted in the Fifty-Eighth district court of Jefferson county of manufacturing liquor, and his punishment assessed at three years’ confinement in the penitentiary.

The record' shows that the appellant and one Pete Biano were jointly indicted for manufacturing intoxicating liquors, and said Biano was first tried and convicted and given a suspencjed sentence, and immediately thereafter appellant was tried and convicted as above stated.

Appellant complains of the action of the court in not permitting him to use his code-fendant as a witness in his behalf to show that the equipment and all of the ingredients used and being used to manufacture the whisky in question belonged to said witness, and not to the defendant. the undisputed facts show that the witness Biano was then under a suspended sentence for the same offense charged against this defendant. Article 91, P. C., and article 791, C. C. P., of Vernon’s Statutes provide that persons, charged in the same or separate indictments, cannot be introduced as witnesses for one another, but may claim a severance and, if any one is acquitted or the prosecution dismissed, he can testify in behalf of the others. Articles 865b to 865f, inclusive, of Vernon’s C. C. P., deal with suspended sentences, and we think contemplate "that the defendant, when under judgement of a suspended sentence, is to remain under the effects of such charge and conviction during the time assessed against him, and until the expiration thereof; then he is permitted to allege and show the court by evidence that he has not been convicted of any other felony during said time, and no, other felony charge is pending against him; thereupon he can have the judgment set aside and the case dismissed. These statutes relative to suspended sentences and articles 91 and 791, supra, we think, when construed together, clearly show that it was the intention of the Legislature to render the witness Biano an incompetent witness for the defendant. Furthermore, this contention made by the defendant has been overruled by this court in the eases of Watts v. State, 75 Tex. Cr. R. 330, 171 S. W. 202, and Sunday v. State, 77 Tex. Cr. R. 26, 177 S. W. 97.

Appellant complains of the action of the court in refusing to give a special charge in this case to the effect that the defendant could not be convicted upon his own uncorroborated incriminatory statements alone. Under the peculiar facts of this case, we are unable to agree with the appellant in this contention, and especially as being applicable to- the facts in this case. The record discloses the still was in operation, and that the statements, made by the defendant, were made at the still, at .the time' of his arrest and immediately thereafter, to the effect that he was not doing' anything more than other people, and was not making poisonous whisky but was making good whisky, and remarking that “you have got me.” These were res gestae statements, and we do not believe that the principle of law contended for by defendant would be applicable to res gestae statements. Copeland v. State, 94 Tex. Cr. R. 112, 249 S. W. 495; Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095.

There is also complaint made of the refusal of 'the court to give a special charge requested by the .defendant to the effect that his presence, where the whisky was made, was not sufficient to warrant a conviction. We concede that this is a sound proposition of law, but do not assent to the proposition that it was error to refuse the charge in this case. The undisputed testimony shows, when the -officers ran up and arrested the defendant and his codefendant, that they were making whisky, and that the defendant made the statements above set out, and there was no evidence to the contrary introduced by the defendant, and he was not a witness in his own behalf, and in fact no issue raised which authorized as required such a charge, and we do not believe the court was in error in excluding same.

There is also complaint made by appellant to the action of the court in ruling upon the testimony of Sheriff Garner on cross-examination, wherein it appears that appellant’s counsel insisted that the sheriff should be made to state how much whisky he drank which was taken from the possession of the appellant at the time of the arrest. The sheriff testified that he tasted the liquor, and that it was whisky, and the bill as qualified by the court, which we are bound to accept as a part of the record, states that after the witness had testified that he had about'forty years’ experience in tasting and smelling whisky, and that he had tasted the whisky in question and that it was whisky, then the appellant insisted on his stating how much of same he drank, and the witness responded that he could not say, and would not say, how much he drank, because he did not know. We are of the opinion that there is no error shown in the record in this particular.

The néxt and most serious question we find in the record is the appellant’s complaint of the court’s trying this case over his objection, because the indictment was returned into the Sixtieth district court, and that same was not legally transferred to the Fifty-Eighth district court — said bill showing that the only evidence of such transfer was by notation on the docket in the handwriting of the clerk, appellant contending that there was no order made‘by the judge of the Sixtieth district court transferring said cause. The trial court, in explaining this bill, states that, when this case was first called in his court for trial, the defendant forfeited his bond, and when .next called he raised the question as above stated, and that it had been the custom for more than five years, followed by both courts of Jefferson county, in regard to transferring criminal cases for the district attorney and the clerk to transfer same at any time they saw proper, the judges many years ago having given their verbal consent for the district clerk, on order of the district attorney, to make such transfers. It appears from this bill that, when the case was called, -the defendant, through his counsel, made an oral motion questioning the jurisdiction of the trial court to try the case by reason of same not having been legally transferred, and that there was no written mótion or affidavit made by the defendant and presented to the court in this instance. Now, the question arising for our consideration is whether or not the law contemplates'a written motion or an oral motion calling the court’s attention to such matters.

Vernon’s C. C. P. art. 577, is as follows:

“All motioús to set aside an indictment or information, all special pleas and exceptions, shall be in writing.”

Article 573, C. C. P., provides:

“Every special plea shall be verified by the affidavit of the defendant.”

In the case of Garner v. State, 62 Tex. Cr. R. 525, 138 S. W. 124, this court, through Judge Prendergast, in construing article 575, C. C. P., stated:

“The fourth subdivision thereof clearly, we think, indicates that unless the -indictment or information itself shows upon its face that the court had no jurisdiction that it would be incumbent upon the appellant to plead in writing, under oath, whatever facts were necessary to show that the court in which the trial was proceeding had no jurisdiction [citing the statute). Unless this is done the court could not do otherwise under the statute under which this prosecution was had, the indictment being regular and on its face charging a felony, than proceed with the trial.”

This doctrine is also announced in Wrenn v. State, 82 Tex. Cr. R. 642, 200 S. W. 846, and Stone v. State, 84 Tex. Cr. R. 280, 206 S. W. 941.

The indictment in this ease is regular on its face, and does not show but that it was presented and filed in the trial court of this case, and under the statutes, supra, and the decisions, supra, we are of the opinion that, unless the motion was made by the appellant in writing, and the statutes and the decisions followed, we would be unauthorized to disturb the ruling of the trial court in this case.

After a careful examination of the entire record, we have been unable to discover any reversible error in the trial of this case, and the judgment of the trial court is accordingly affirmed.

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.

On Motion for Rehearing.

LATTIMORE, J.

Appellant cites Simonds v. State, 76 Tex. Cr. R. 487, 175 S. W. 1064, and Espinoza v. State, 73 Tex. Cr. R. 237, 165 S. W. 208, as being opposed to the announcement in our original opinion that his codefendant Biano, who had been convicted for complicity in the same offense and given a suspended sentence, was not a competent witness in his behalf. We fear appellant has not apprehended the distinction between the cases cited in our opinion and those lust referred to. We did not uphold the rejection of Biano’s testimony oh the ground that one, under a suspended sentence is thereby rendered incompetent as a witness generally. This question was not before us. In Espinoza v. State, supra, the testimony of a witness, who had been convicted and given a suspended sentence, was held properly admitted, when offered for the state. Had the witness been offered for the accused, under circumstances similar to those in this case, his testimony should have been rejected. The ruling is in response to article 791, C. C. P.,, which forbids those indicted for the same , offense to be used as witnesses for each other. One, who has been convicted and given a suspended sentence, still has the indictment pending against him, until after the expiration of the sentence, when upon proper showing a new trial is granted and the case dismissed. We have examined each of the other contentions made by appellant, and believe them without merit.

The motion, for rehearing is overruled. . 
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