
    HUGHES v. STATE.
    (No. 8844.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.
    Rehearing Denied May 13, 1925.)
    1. Criminal law <&wkey;74l(l), 742(1) — Jury’s province to pass on credibility of witnesses and weight of their testimony.
    It is jury’s province to pass on credibility of witnesses and weight of their testimony.
    2. Criminal law <&wkey;l09l(4) — Bill of exceptions stating only grounds of objection to evidence not considered!..
    , Where bill of exceptions stated only grounds of objections to evidence, appellate court will not consider bill without some showing therein of the truth of matters stated as objections.
    3. Criminal law &wkey;>721 (3)— Argument held not to refer to accused’s failure to testify.
    In prosecution for manufacturing intoxicating liquor, district attorney’s argument that accused “said, ‘You’ve got us.’ He said that not here now, but then, when it was fresh in his mind,” is not objectionable as reference to accused's faEure to testify.
    4. Criminal law <§=3829(20) — Special charge relating. to responsibility as principal properly refused when covered by main charge.
    Special charge was properly refused which was not perceptibly different from given charge, that even if defendant’s son was engaged in manufacturing whisky "defendant could not be (fonvicted unless jury believed that he was acting as principal. . .
    On Motion for Rehearing.
    5.-Criminal law <&wkey;364(!/2) — 5-tatements made by accused which are part of transaction are admissible as “res gestae.”
    Statements made by accused which appear to be part of the transaction itself and so connected therewith as to evidence their spontaneity are admissible as “res geste.”
    [Ed. Notq. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Res Ges-tae.]
    6. Criminal law <&wkey;>l09l (4)— Statement in bill of exceptions that evidence was objected to on certain ground insufficient, when not showing truth of ground relied on.
    • Statement in bill of exceptions that evidence was objected to on ground that accused was under arrest is not tantamount to showing of fact of such arrest, and bill is insufficient to present objection to such evidence, when truth of arrest is not otherwise shown in bill.
    7. Criminal law <©=1091 (2) — Appellate court not required1 to ascertain from other parts of record truth of grounds of objection contained in bill.
    Criminal Court of Appeals is not required to ascertain from other parts of record whether facts stated in bill of exceptions as grounds of objection are true or not.
    <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Grayson County ; P. E. Wilcox, Judge.
    W. C. Hughes was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    J. D. Buster, of Sherman, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Grayson county of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The state’s testimony makes out a clear case of the manufacture of intoxicating liquor. Officers went to appellant’s premises and. observed the assemblage of material, equipment, etc., in a thicket. Later they returned to the same place and found appellant and his son in the immediate vicinity and a still in operation manufacturing intoxicating liquor. The jury have solved the facts adversely to appellant. It is their province to pass on the credibility of the witnesses and the weight of their testimony.

There are four bills of exception in the record. The first was taken to certain testimony of witness Shipp, and also of witness Brinkley. The grounds only of the objections are stated. If facts there be supporting the objections made) same are not stated. Without some showing in the bill of the truth of the matters stated as objections, this court would be without power to give such bill consideration. The authorities are too numerous to need citation.

Bill of exceptions No. 2 is to argument of the county attorney in closing the case. Counsel stated to the jury:

“He [meaning the defendant] said: ‘You’ve got ns.’ He said that not here now, but then, when it was fresh in his mind.”

The objection to this is that it was a reference to the failure of the appellant to testify. The matter might be disposed of by stating that there is nothing in the bill of exceptions that in any wise sets forth the fact that appellant did fail to testify, but we do not .believe the matter of the statement was such as in any event to be open to the objection made.

The trial court in the main charge told the jury that, even though they believed R. H. Hughes (the son of appellant) was engaged in manufacturing whisky, they could not convict the defendant, unless they believed from the evidence beyond a reasonable doubt that he was acting with R. H. Hughes as a principal, and that they could not convict him, even though he knew of the presence of the still, and that whisky was being made, and even though defendant was arrested at or near the still, unless he was acting as a principal with said R. H. Hughes. Such being the case, we do»not think special charge No. 1 asked and refused presents error. There is no perceptible difference between the charge as given and said special charge.

The remaining bill of exceptions is to the Tefusal of a new trial. The motion set up no extraneous matters, and in overruling it the learned trial judge committed no error.

The judgment will be affirmed.

On Motion for Rehearing.

We are unable to see how the fact that another person beside appellant was connected with the manufacture of the liquor, would .aid him, or in any wise tend to show that he was not also engaged in the same transaction.

This court has said in many cases that one accused of crime, who makes statements which appear to be a part of the transaction itself and so connected therewith as to evidence their spontaneity, cannot object to the use of said, statements as evidence; they being held res gestee. In the instant •case, the bill of exceptions complaining of the introduction against appellant of his statement to the officers contains no showing of the fact appellant was then under arrest. The statement in a bill of exceptions that certain evidence is objected to on the ground that appellant was under arrest is not tantamount to a showing of the fact of such arrest. Unless the truth of those things stated as grounds of objection be manifested in the bill, it will not be sufficient.

We can add nothing to what we said in our former opinion as presenting our view that the statement of the county attorney was not a reference to the failure of appellant to testify. The same defects appear in-this bill of exceptions as in the one above referred to. The books are full of cases layr ing down the rule, which is well understood, that this court will not be required to take the time to ascertain from other parts of the record whether those things stated in a bill* of exceptions as grounds of the objection are true -or not.

. Being unable to agree with any of the contentions made by appellant, the motion for rehearing will be overruled.  