
    EDGE v. STATE.
    (No. 9062.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law <&wkey;>878(5) — General verdict in prosecution, based upon several counts, but' submitting, only one count, will be referred to that count.
    General verdict in prosecution, based upon several counts, but submitting only one count, will be referred to that count.
    2. Criminal law <&wkey;U84 — Judgment of conviction modified to conform to charge.
    Judgment, reciting, that accused was adjudged guilty of “offense of possessing mash and making liquor,” 'held subject to modification to conform to charge that he possessed mash for the purpose of manufacturing intoxicating liquor.
    3. Intoxicating liquors <&wkey;236( 19) — Evidence held sufficient to support verdict of guilty for possession of mash for manufacturing liquor.
    Evidence 'held sufficient to support verdict of guilty for possession of mash for manufacturing intoxicating liquor.
    4. Criminal law <&wkey;l086(l4) — Special charges refused, held not entitled to consideration on appeal, because lacking notation advising appellate court of time of presentation to trial judge.
    Special charges requested and refused, held not entitled to consideration on appeal, where they were without notation advising appellate court of time of presentation to trial judge, and such information was not supplied by formal bills of exception.
    5. Criminal law &wkey;>l 120(8) — Bills of exception complaining of reception of certain testimony held not entitled to consideration as being incomplete.
    Bills of exception complaining of reception of certain testimony held not entitled to consideration as being incomplete, where no facts were stated showing the connection in which the evidence came into the case, and things complained of were stated as grounds of objection only.
    6. Intoxicating liquors <&wkey;!7 — Statutory provision as to permits held not to render inoperative entire prohibitory law relating to intoxicating liquor.
    Fact that Acts 36th Leg. (1919) 2d Called Sess. c. 78, § 2b as added by Acts 37th Leg. (1921) 1st Called Sess. c. 61, § B (Vernon’s Ann. Pen. Code Supp. 1922, .art. 58&%a.2), excuses only after a permit has been granted by the proper authorities, certain enumerated acts done in connection with intoxicating liquor for one of the purposes excepted in the Constitution as lawful, held not to render inoperative the entire group of prohibitory laws relative to intoxicating liquor.
    
      <@=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      On Motion for Rehearing.
    7. Intoxicating liquors <3=>6 — Legislature held empowered to enact statute making it offense to possess mash for manufacturing purposes, in absence of constitutional inhibition.
    Legislature held empowered to enact statute making it offense to possess mash for manufacturing purposes, in absence of constitutional inhibition.
    ^soEor other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    E. S. Edge was convicted of possession of mash for the purpose of manufacturing intoxicating liquor, and he appeals.
    Affirmed as reformed.
    Seb E. Caldwell, of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

The indictment contained three counts. The first charged possession of mash for the purpose of manufacturing intoxicating liquor, the second, the manufacture of such liquor, the third, possession of a still, equipment, supplies, etc., for the purpose of manufacture. The first count only was submitted. Defendant was donvicted, his punishment being assessed at one year in the penitentiary.

The verdict was general. The first count only being submitted, the verdict will be referred to that count. Parks v. State, 29 Tex. App. 597, 16 S. W. 532; Copello v. State, 95 Tex. Cr. R. 306, 254 S. W. 973; Wright v. State, 98 Tex. Cr. R. 513, 266 S. W. 783. The sentence followed the verdict, but the judgment recited that defendant was adjudged guilty of the “offense of possessing mash and making liquor, etc.” The judgment is reformed to condemn defendant to be guilty of possessing mash for the purpose of manufacturing intoxicating liquor.

The officers went to defendant’s premises, and some two or three hundred yards from his house found some barrels of mash and a number of other articles of equipment suitable for the manufacture of whisky. It showed signs of having been used. The mash had reached that stage where it was about ready to be “cooked off.” A path was found leading from the point where the equipment was discovered to defendant’s house. We think it unnecessary to further state in detail the evidence. It was sufficient to support the verdict.

The special charges requested and refused cannot be considered. We find no notation on them advising this court at what time they were presented to the trial judge, neither are there formal bills of exception giving information upon this point. Clark v. State, 90 Tex. Cr. R. 613, 237 S. W. 260, and cases therein cited.

There are three bills of exception in the record, all of which complain of the reception in evidence of certain testimony. We regret that the bills are not sufficiently full to authorize their consideration. No facts are stated showing the connection in which the evidence came into the case, and the things complained of are stated as grounds of objection only. This is not a certificate of the truth of the matters upon which the objections appear to be based. See section 209, Branch’s Ann. P. O. for collated authorities.

Defendant attacks the validity of the entire group of prohibitory laws relative to intoxicating liquor based upon the wording of Acts 36th Leg. (1919) 2d Galled Sess. c. 78, § 2b, as added by chapter. 61, § B, 1st Galled Sess. 37th Leg. (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a2), which reads as follows:

“The manufacture,' sale, barter, exchange, transportation, exporting, soliciting, taking orders for, furnishing, and possessing of any of the liquors mentioned in this chapter, if done for medicinal, mechanical, scientific, or sacramental purposes, <md after a permit has been duly authorized and granted hy the proper authorities, shall not be punishable under the terms of thjs chapter.”

We have italicized that portion of the section just quoted upon which defendant’s contention appears to be based. Defendant urges that because the Legislature inserted in section 2b, the words, “and after a permit has been duly authorized and granted by the proper authorities,” it sought to place an undue restriction upon the constitutional provision under which these laws were enacted, and-that such act of the Legislature rendered inoperative all of the laws relative to the subject. We are not in accord with defendant’s position upon this point. It has been held in a number of cases that if a party is manufacturing, selling, transporting, or otherwise dealing with intoxicating liquor, for one of the purposes excepted by the Oonstitution (to wit, medicinal, mechanical, scientific, or sacramental), he would not be guilty of a violation of the law, even though he had no permit authorizing his act. Burciago v. State, 88 Tex. Cr. R. 576, 228 S. W. 562; Horak v. State, 95 Tex. Cr. R. 474, 255 S. W. 191; Treglude v. State, 96 Tex. Cr. R. 128, 256 S. W. 276, and cases therein cited.

We find no error in the record which would authorize a reversal of the judgment, and as reformed,- as heretofore indicated, the judgment is ordered affirmed.

On Motion for Rehearing.

LATTIMORE, J.

State witnesses swore positively to finding on appellant’s premises, and not far from his house, two barrels of mash such as whisky is made from; that this mash was ready to be converted into whisky. Near the mash were found a furnace, buckets, a pot which fit the furnace, a flake stand, a thump keg, a breaking jar, etc. The use of each of these in the operation of manufacturing whisky was explained. The mash and paraphernalia were near a pool of water and a thicket. Proof showing appellant in possession of mash both able and ready to be converted into whisky, and also of most, if not all, of the paraphernalia used in converting such mash into whisky, would seem enough to justify the jury in concluding that he possessed mash for the purpose of making same into intoxicating liquor.

In a lengthy argument, appellant attacks the constitutionality of the law under which the conviction was had. In the absence of some constitutional inhibition, our Legislature would seem to have the power to enact the statute in question. We know of no such inhibition, and none is pointed out.

The motion for rehearing will be overruled.  