
    NEWSOME v. STATE.
    (No. 10028.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1926.)
    1. Criminal law <@=>394 — Where liquor was found in defendant’s garden without search warrant, proper procedure is objection to testimony when offered.
    Proper procedure, in prosecution for possessing liquor, where liquor was found in defendant’s garden without search warrant, is objection to testimony when offered, and not motion to suppress.
    2. Criminal law <@=>1169(5) — Alleged error in admitting testimony subsequently withdrawn from jury will not be reviewed.
    Alleged error in admitting testimony will not be reviewed on appeal, where court in his charge withdrew such testimony from jury.
    3. Criminal law <©=>1118 — Defendant must show how he expected to refute testimony constituting alleged surprise to authorize reversal of order denying continuance.
    To authorize reversal of order overruling motion to allow defendant to withdraw announcement of ready for trial, and for continuance for surprise, he must show how he expected to refute testimony constituting alleged surprise.
    4. Criminal law <©=s599 — Defendant held not surprised by testimony that witness purchased liquor from him so as to authorize continuance.
    Evidence held to show that defendant was not surprised by testimony that witness pur-' chased liquor from him so as to authorize continuance.
    5. Criminal law <®= 1184 — Sentence of — years” for possessing liquor held reformed to be not less than one nor more than three years..
    In prosecution for possessing liquor, sentence of “-- years” in penitentiary held reformed to be not less than one, nor more than three years in penitentiary.
    Commissioners’ Decision.
    Appeal from District Court, Upshur County; J. E. Warren, Judge.
    S. G. Newsome, Jr., was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Judgment reformed and affirmed.
    M. B. Briggs and C. E. Florence, both of Gilmer, for appellant.
    v Sam D. Stinson, State’s Atty.', of Austin, and Eobt. M. Lyles, Asst. State’s Atty.. of Groesbeek, for the State.
   BAKEiE, J.

The appellant was convicted in the district court of Upshur county for the unlawful possession of intoxicating liquor, and his punishment assessed at three years in the penitentiary.

The indictment in this case charges that on or about the 15th day of October, 1924, the appellant unlawfully possessed intoxicating liquor for the purpose of sale. The' state, in developing its case in chief, introduced the witnesses, Collier and Potter, who testified to. having found, on the date alleged in the indictment, a gallon of whisky in appellant’s garden. The state also introduced in evidence the testimony of Jim Skinner to the effect that in the summer of 1924, and during the fruit season of said year, he bought intoxicating liquor from appellant at his store, and thereafter bought a gallon of whisky from him at his home. After the evidence had been concluded, the court withdrew from the jury all of the evidence pertaining to the finding of the whisky in appellant’s garden, and confined the jury to the consideration of the alleged transaction testified to by the witness, Skinner.

In' bills of exception 1, 2, and 3 the appellant complains of tlie action of the court in admitting the testimony of the witnesses, Collier and Potter. Before announcing ready for trial, the,appellant moved the court to suppress, all of the testimony relative to finding said whisky in appellant’s garden because said witnesses did not have a search warrant authorizing them to search the premises, which motion was by the court overruled. This court has repeatedly held that such a motion was not available, and that the proper procedure was to object to such testimony when offered. The appellant objected to this testimony, when offered, upon the same grounds set out in bills of exception 2 and S, supra. The court overruled the objection, and permitted the testimony to go to the jury. However, because of the withdrawal of the testimony on this issue from the jury in the court’s charge, these questions pass out of the case.

When the witness, Skinner, testified for the state to the purchase of whisky from the appellant in the summer of 1924 and thereafter, the appellant objected to said testimony upon the grounds that it was an attempt ' to prove extraneous offenses other than that alleged in the indictment, and same was prejudicial to the appellant. The court overruled said objections, and, when he presented his charge withdrawing the testimony relative to the finding of the whisky in appellant’s garden, and submitting for the consideration of the jury the possession of the whisky testified to by the witness Skinner, the appellant moved the court to withdraw his announcement of ready for trial and continue the case on the ground of surprise, because the state had not called’ the witness Skinner in calling the other state’s witnesses before announcing ready for trial, and his testimony involved a transaction which occurred on a date different from that alleged in the indictment, and the appellant was not prepared to meet the issues raised by said testimony. The appellant contends that the action of the court in refusing to permit him to withdraw his announcement and continue the ease was reversible error. We are unable to agree with this contention. The motion fails to state or show any witness from whom, or facts by which, the appellant expected to obtain testimony to refute or contradict the testimony of the witness Skinner, and fails to show in any manner that by continuing the case the appellant could have combatted said testimony. Before this court would be authorized to interfere with the ruling of the trial court on the motion, it would be necessary for the appellant to show that he could produce testimony to contradict that of the witness Skinner, or that he had been injured in some way, and that the trial court, in overruling said motion, abused his discretion, Shanklin v. State, 68 Tex. Cr. R. 417, 152 S. W. 1063; Powers v. State, 83 Tex. Cr. R. 462, 204 S. W. 325; Welk v. State, 99 Tex. Cr. R. 235, 265 S. W. 914. Also see Vernon’s 1925 C. C. P. p. 472, for collation of other authorities to the same effect.

We might further state that on cross-examination the appellant testified that he had heard that the witness Skinner had made a statement before the court, “and knowed something on me,” and that a short time before court convened he went to Louisiana, and there interviewed Skinner, and sought to have him sign a written statement as to what kind of man he (appellant) was, and recommending him. The witness Skinner testified to the effect that said statement presented to him by the appellant was a recommendation of the appellant’s character, and was to the further effect that he, the witness, knew nothing about .the appellant making, selling, or drinking whisky. The witness further testified that the appellant offered him $75 not to appear in court. 'We think this testimony clearly, refutes the idea of the appellant being surprised by the testimony of the witness, Skinner.

The sentence in this case is for “-- years” in the penitentiary, and is now reformed to be not less than one nor more than’ three years in the penitentiary.

We have carefully examined all of the questions raised by the appellant, and, finding no error in the record, the judgment of the trial court is reformed and 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. 
      igssFor other oases see same topic ahd KEY-NUMBER in all Key-Numbered Digests and Indexes
     