
    HARRIS v. STATE.
    (No. 6948.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1923.)
    1. Criminal law @=^1092(14), 1120(8)— Objection to opinion testimony not revlew^ble .where not shown in what manner witness lacked1 knowledge, and where there was. no certification by trial court.
    A bill of exceptions to the court’s ruling on a motion to strike testimony that liquor found was whisky, “because said witness did not have a sufficient amount of information to entitle him to give an opinion upon the subject,” held not to warrant consideration where it did" not set out in what manner the witness lacked-information, and the ground of objection stated did not amount to a certification of the trial-court that the witness was without knowledge in the matter.
    2. Criminal law <©=> 1170(1) — Refusal to require-sheriff to state upon whose information a search warrant was secured held not reversible error.
    Refusal of the trial court to require the-sheriff to state upon whose information it was-that the officers acted in securing a search warrant for his premises held not reversible error in the absence of any showing that such information would have been in any way helpful to accused, who offered no testimony.
    '3. Criminal law <©=5393(1,2)— Evidence of search and seizure of still and introduction of apparatus in evidence held not scheme to make defendant testify against himself.
    Evidence of a search and 'seizure of a still and introduction of the apparatus in evidence held not to constitute “a scheme to make defendant testify against himself,” and warrant exclusion thereof.
    •4. Removal of causes <©=>! — Transfer of liquor prosecution to federal court held unwarranted.
    A motion for the transfer of a prosecution for liquor law violation to the federal court because the affidavit for search warrant was made out in the federal court, because the federal court had concurrent jurisdiction, because the federal prohibition law was more lenient and just than the state law, because the state law was alleged to he null and void, held not to state any ground authorizing such a transfer.
    5. Criminal law <@=3488 — Doctor’s testimony that he had tested liquor, and found it to contain 50 per cent, alcohol, held admissible.
    Testimony by a doctor, who stated that he had tested liquor in question with an instrument known as an “alcoholometer,” and found that it contained 50 per cent, alcohol, held admissible.
    6. Criminal law <@=>1038(1); 1092(6) — Instruction not considered, where bill of exceptions filed late, and' there v/as no written objection.
    Where it does not appear that any written ■objection was filed to the giving of an instruction, as required by Code Cr. Troc. 1911, art. 735, and the bill of exceptions was not filed until long after adjournment of the court, it is not entitled to consideration on appeal.
    7. Intoxicating liquors <©=>224 — Instruction placing burden on defendant to show liquor manufactured for proper purpose held not ' error.
    An instruction placing upon defendant the burden of proving that liquor was manufactured for medicinal, mechanical, scientific, or sacramental purposes held not error.
    8. Criminal law <@=>826 — Requested instructions must be presented at time of trial and before main.charge.
    Requested instructions must be presented to the court at the time of trial, and before the main charge is read to the jury.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Johnnie Harris was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    H. T. Lyttleton and Hobart ICey, both of Marshall, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor, with punishment assessed at three years’ confinement in the penitentiary.

The third count in the indictment, being the only one submitted to the jury, alleged that appellant about July 28, 1921, unlawfully manufactured spirituous, vinous, and malt intoxicating liquor capable of producing intoxication, not for medicinal, mechanical, scientific, or sacramental purposes. The indictment is in conformity with the law in effect at the time of the alleged commission of the offense. Attack is made upon the indictment on the ground that the law under which it is drawn is unconstitutional, and that it does not conform to the amendment to. the Constitution of the United States and of the Volstead Act passed by Congress (41 Stat. 305), placing the same in effect. These questions were all decided adversely to appellant in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199, and have been so frequently reaffirmed we deem it unnecessary to cite the cases, except two of Clyde Chandler v. State, 89 Tex. Cr. R. 308, 232 S. W. 336, and 89 Tex. Cr. R. 599, 232 S. W. 337, and two of John Chandler v. State, 89 Tex. Cr. R. 306, 232 S. W. 317, and 89 Tex. Cr. R. 308, 232 S. W. 336. The same contentions urged here by appellant were relied on in the four cases (supra), and, this court having failed to uphold them, writs of error to the Supreme Court of the United States were applied for and granted; that court on January 8, 1923, dismissed said cases, declining to consider the questions therein raised.

The officers secured a search warrant and proceeded to the premises of appellant, where they found a still being operated by him, together with about 30 gallons of mash. The complete equipment is described in detail in the evidence. It is not necessary to burden the record with a description of it here. It was not only shown that the still could be so connected as to manufacture whisky, but it was actually connected up and in operation at the time the officers found it. The equipment in question was introduced in evidence. The testimony was amply sufficient to authorize conviction.

Appellant filed a motion seeking the return of the -property found by the officers; he also objected to the testimony as to what they found at appellant’s premises, and in various ways raised questions as to the regularity and sufficiency of the search warrant. These questions are not discussed at length, as they all pass out of the case under authority of Welchek v. State (No. 7136) 247 S. W. 524 (opinion delivered November 22, 1922; motion for rehearing overruled January 17, 1923).

The sheriff testified that the liquor he found appellant manufacturing was whisky. It appears by bill of exception No. 6 that appellant moved, to strike this testimony from tbe record “because tbe said witness did not bave a sufficient amount of information to entitle bim to give an opinion upon tlie subject.” Tbe bill is entirely insufficient for tbis court to consider it. It does not undertake to set out in what manner tbe witness lacked information, and tbe ground of objection stated in tbe bill would not amount to a certificate from tbe trial judge that tbe witness was tvitbout knowledge" as to tbe matter. - See section 209, Branch’s Ann. Pen. Code, p. 134. An examination of tbe statement of facts reveals that tbe objection stated in tbe bill is entirely without support

It appears from bill of exception No. 7 that appellant sought to elicit from the sheriff tbe name of tbe party upon whose information tbe officers acted in securing tbe search warrant. Tbe trial court declined to compel the sheriff to divulge such information, and appellant presents tbis as error. Eacts might be made to appear in some instance which would present such denial on the court’s part as error, but tbis has not been done in tbe bill of exception before us. Appellant did not testify upon tbe trial, and' offered no evidence of any character, evidently basing bis'defense upon tbe contention that tbe officers were acting under an unauthorized search warrant, and therefore that tbe facts discovered by them thereunder were not receivable in evidence. No fact is made to appear in the bill which would indicate that it would bave been in any way helpful to appellant to bave required tbe sheriff to publicly make known the name of tbe party upon whose information be acted which resulted in the discovering of appellant’s violation of tbe law.

Appellant filed a motion asking the court to exclude all the testimony developed in tbe case because “the same was a scheme to make defendant testify against himself.” We bave been unable to appraise the force of this contention. No testimony was offered through the state’s witnesses as to anything appellant said at the time they discovered him operating the still, and we cannot understand by what course of reasoning tlie evidence of the officers as to what they found, and the introduction of the apparatus' in evidence, can be made'the basis of a claim that appellant was compelled to give evidence against himself. By the same course of reasoning a party charged with the theft of property found in his possession could exclude the testimony as to such finding and the exhibition of the stolen property in court upon the trial.

Appellant made a motion during the trial that this ease be transferred to the •Jefferson division of the federal court of the Eastern district of Texas for the following reasons stated in the bill:

“Eirst. Because tlie affidavit for search warrant was made out for the federal court. Second. Because the federal court has concurrent jurisdiction with this court in the trial of such cases. Third. Because the federal prohibition law is more lenient and jubt than the state law upon the subject. Fourth. Because the Texas state prohibition law is null and void. (A) It administers excessive and cruel punishment; (B) It is in conflict with the federal Constitution and law upon the same subject, which is the supreme law of the land.”

We know of no authority authorizing tlie transfer of a criminal case from a state court to a federal court upon any of the grounds presented in the bill.

No error was committed by tbe court in-refusing to strike out the testimony of Dr. Dunn, who testified that he had tested the liquor in question, using an instrument known as an “alcoholometer,” “and found therefrom that the liquor found by the officers contained 50 per cent, of alcohol.” The state having shown by other witnesses-that the liquor was whisky was sufficient to support the allegation in the indictment, even-in the absence of Dr. Dunn’s testimony; but, if this were not so, we find no ground which would have authorized the court to have withdrawn this testimony from the jury.

The court charged the jury, if they believed from the evidence beyond a reasonable doubt that appellant unlawfully manufactured spirituous, vinous, and malt intoxicating liquor capable of producing intoxication, to wit, whisky, that they would convict appellant. At the instance of the state he-gave a special charge as follows:

“You are instructed that our statute provides that it is unlawful for any person to manufacture intoxicating liquors not for medicinal, mechanical, scientific, or sacramental purposes, and you are further instructed that the burden of proving that intoxicating liquors were-manufactured for such purposes (if any intoxicating liquor was manufactured) rests upon defendant.”

Appellant presents what purports to he the reservation of an exception to the giving of this special charge. It nowhere appears in the record that any written objection was-filed thereto at the time of the trial, and the bill presented for our consideration was not filed until March 10,1922, long after adjournment of court. As presented the hill is not entitled to consideration, but, even if it were, we find no error in the special charge. It is in conformity with the holding of this court in Roberts v. State, 90 Tex. Cr. R. 133, 234 S. W. 89, and Shaddix v. State, 90 Tex. Cr. R. 431, 235 S. W. 602, which rule has been consistently followed since tlie announcement.

Bill No. 16 purports to be an exception to the court’s charge. It is nowhere stated in. the bill that appellant filed any written objection to the charge as required by article 735, C. O. P., and no such written objection i appears in the record. The bill of exception. in question was filed March 10, 1922, long after adjournment of court, and, in the absence of a showing in the bill over the signature of the trial judge that the matters now complained of were objected to in writing, we would be precluded from a consideration thereof; however, the matters eonplain-ed of in the court’s charge appear to us to be unob j eetionable.

We find in the record five special charges requested by appellant, all of which are marked “refused.’'’ There also appear five bills of exception to the refusal of the court to give the charges requested, but neither in a notation upon the charges themselves over the judge’s signature, nor in the bills presenting the matter for r|view, is it stated that these charges were presented to the trial court at the time of the trial, and before the main charge was read to the jury. We examined the special charges before discovering tlie defect pointed out, and believe the court properly declined all of them.

Finding no error in the record, the judgment is affirmed. 
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