
    THOMPSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Indictment and Information (§ 159)— Designation oe Accused — Name—Change.
    Where, after an indictment was read to the jury, defendant on his own motion suggested that he was not properly designated therein, the court was authorized by Code Cr. Proc. 1911, art. 560, to direct an amendment of the indictment and subsequent proceedings so as to designate defendant by his right name.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.]
    2. Intoxicating Liquoes (§ 236) — Evidence —Place of Offense.
    Evidence that prosecutrix procured from accused a bottle of distilled alcohol on March 2oth, at D., sufficiently showed the time and place of the offense, if one was committed.
    [Ed. Note. — Eor other cases, see Intoxicating^ ' Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    3. Criminal Law (§ 935) — Proof of Venue-Presumptions — Statutes. .
    Under Code Cr. Proc. 1895, aft. 904, as amended in 1897 (Laws 25th Leg. c. 12), providing that in all cases on appeal the court will presume .that .the venue was proven in the trial court unless the question was made an issue at the trial and it affirmatively appears by bill of exceptions properly signed and allowed by the judge, accused cannot object for.the first time on motion for new trial to the state’s failure to prove the venue.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2193, 2194, 2297, 2298, 3068; Dec. Dig. § 935.]
    4. Intoxicating Liquors (§ 239) — Wrongful Sale — Variance.
    Where, in a prosecution for illegal sale of liquor, the indictment was returned March 31, 1913, and the evidence showed that the sale in question took place, if at all, on March 25, 1913, it was not error for the court to charge that, if the jury believed beyond a reasonable doubt that defendant in A. county, Tex., at any time during the month of March, and before the 31st day thereof, did sell intoxicating liquors, etc., they should find him guilty.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    5. Intoxicating Liquors (§ 236) — Wrongful Sale — Local Option Election — Petition — Proof—Waiver.
    Under Rev. Civ. St. 1911, art. 5728, providing that, if a local option election is not contested within 30 days after the result has been declared, the court may conclusively presume that such election is valid, the state, in a prosecution for selling intoxicating liquors in prohibited territory under such circumstances, is not required to prove that a petition for a local option election was signed by the required number of qualified voters.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    6. Criminal Law (§ 1064) — Appeal—Exceptions — Presentation in Trial Court.
    All matters of exception urged on appeal must have been first submitted to the trial court in a motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    7. Witnesses (§ 337) — Credibility of Accused-Indictment for Prior Offense.
    Where accused testified as a witness in his own behalf, evidence that he had been indicted for arson was admissible to affect his credibility. [Ed. Note. — For other cases, see Witnesses, ) Cent. Dig. §§ 1113, 1129-1132,1140-1142, 1146-1148; Dec. Dig. § 337.]
    8. Criminal Law (§ 404) — Evidence — Liq VOS.
    
    In a prosecution for sale of liquors in pro- ' hibition territory, evidence held to authorize the admission in evidence of a bottle of diluted alcohol claimed to be the liquor purchased by pros-ecutrix from accused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    9. Criminal Law (§ 861) — Exhibits—Intoxicating Liquors.
    Where accused was charged with illegally selling certain alcohol to prosecutrix in prohibition territory, and the bottle containing the alcohol was admitted in evidence, it was proper for the court to permit it to go to the jury for them to “smell its contents”; it not appearing that they drank any of it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2061; Dec. Dig. § 861.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Shelly Thompson w;as convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Átty. Gen., for the State.
    
      
      Fov other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Seri es & Rep'r Indexes
    
   HARPER, X

Appellant was prosecuted and convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at one year’s confinement in the state penitentiary.

The first objection raised in the motion for a new trial in that the indictment was returned against Shelly Thomas, whereas the appellant’s name is Shelly Thompson, not Thomas. The following order appears in the record: “After the indictment had been read to the jury, the defendant on his own motion suggested that his name was Shelly Thompson and not Thomas, as stated in the indictment. It is therefore ordered by the court that the correction be made and that the indictment shall read Shelly Thompson, and it was so done.’’ This proceeding was authorized by article 560 of the Code of Criminal Procedure, and the court did not err in ordering the name changed in the indictment in accordance with the suggestion of appellant.

The proof in this case shows that the main prosecuting witness procured a bottle of distilled alcohol from appellant on the 25th day of March, at Diboll; consequently the objection in the motion that the “evidence failed to show the time and place of the offense, if an offense was committed,” is not well taken. If it is intended by this ground to raise the question that the evidence does not show that Diboll is in Angelina county, this comes too late in a motion for new trial. It was formerly held that lack of proof of venue could be raised in the motion for a new trial, and for this reason article 904 of the Code of Criminal Procedure was amended in 1897 (Gen. Laws 1897, c. 12) to read that in all cases the court on appeal will presume that the venue was proven in the court below, unless that question was made an issue in the trial of the case and it affirmatively appears by a bill of exceptions properly signed and allowed by the judge. This question, after the amendment was adopted by the Legislature, was fully passed on in McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93.

There is no merit in the contention that a variance is presented because the evidence shows that the sale, if a sale, took plage on March 25th, while the court in his charge instructed the jury that if they believed beyond a reasonable doubt that defendant in Angelina county, Tex., at any time during the month of March, and before the 31st day of March, 1913, did sell intoxicating liquors, etc., they would find appellant guilty. The indictment was returned on the 31st day of March, and it was proper for the court to instruct the jury that the offense must have been committed before that date. |

The next objection is that the indictment, charges that the order published was by order of the commissioners’ court. If this objection was supported by the allegations in the indictment, under some of the decisions of this court, the objection would be meritorious. But by no strained construction could’ such a meaning be given to the words contained in the indictment. The indictment alleges that the newspaper in which the order-was published was selected by the county-judge, and publication of same made.

The objection that “the defendant cannot waive the right but the state must prove-that a petition was signed by the required number of qualified voters ordering the election to determine whether the sale of intoxicating liquors should be prohibited” is-without merit. Article 5728, Revised Statutes, provides that, if the election is not contested within 30 days after the result has been declared, the court shall conclusively presume that the election is valid and binding.

These are all the grounds contained in the motion for a new trial, but, some 30 days after the adjournment of court, four bills of exception were approved by the court and filed by appellant, presenting other questions. If appellant relied on them to secure a new trial, to have been fair to the trial court he should have presented the questions thus raised in the motion for a new trial. The court, in acting on his application for a new trial, of course only ruled on such matters as were presented in the motion for new trial, and the law contemplates that all matters which are relied on to present error shall be presented first to the trial court that it -may correct its own errors, if errors there be.

However, we have read and considered the four, bills. The first complains that the court permitted the state to show that appellant had been indicted, charged with arson. Under all of our decisions this was admissible as affecting his credit as a witness. The next complains that the court erred in permitting to be introduced the bottle of diluted alcohol secured by the prosecuting witness from appellant. She testified that immediately upon its purchase she delivered it to Mr. Tucker. Mr. Tucker testified he delivered it to the constable, Mr. Lockhart. Mr. Lockhart said he placed it in a safe, and on the day of the trial he went to his safe and got it from the place where he placed it. Even appellant, upon being shown the bottle, testified: “That looks like the same bottle Susie got from me, and it looks like the same substance that was in it when I let her have it.” Under such testimony there-was no error in admitting the bottle of liquor in evidence. It is also complained that, the bottle of liquor was handled by- the jury,, and they “smelled its contents.” There is no evidence that they drank any of it, and. tlie fact they had it in their hands and smelled its contents would present no error.

The fact that the prosecuting witness was named at the date of the alleged purchase Susie Gooden, that between the time she made the purchase and the time of the trial she had married a man named Lewis, and was called Susie Lewis, would present no variance. The indictment charged a sale to Susie Gooden, the name she bore at the time she says she made the purchase.

The judgment is affirmed.  