
    WILSON v. STATE.
    (No. 8076.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1924.
    Rehearing Denied April 8, 1925.)
    1. Intoxicating liquors <&wkey;>233(l) —Testimony" as to giving money to party purchasing whis-ky from defendant held admissible.
    Witness’ testimony, in prosecution for selling intoxicating liquor, that he gave 83 on day of alleged sale to party who purchased whisky from defendant, held admissible.
    2. Criminal law <&wkey;l IICM/ate) — Asking question answered in negative held not error.
    Asking of harmless question, answered in negative, held not error; no testimony injurious to appellant being elicited.
    3. Intoxicating liquors <&wkey;226 — Prosecuting witness’ answer as to how long it was since he had whisky on hand' held properly excluded.
    In prosecution for selling intoxicating liquor, answer to question to prosecuting witness, as to how long it had been since he had some whisky on -hand, held properly rejected as immaterial and irrelevant, in absence of testimony that he got liquor at C. and not from defendant, as bill of exception stated was', sought to be shown.'
    On Motion for Rehearing.
    4. Criminal law <&wkey;l'l28(2) — Denial of motion for new trial sustained, in absence of timely bill of exceptions presenting evidence heard thereon. '
    In absence of statement of 'facts or bill of exceptions, filed during term, presenting evidence heard on motion for new trial as recited in order anil judgment overruling motion, court’s action will be upheld, though affidavit was attached to motion, and state did not traverse the motion in terms.
    @=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Riley Wilson was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    Morrow & Stollenwerck, of Hillsboro, for appellant.
    
      Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., Loth of Austin, for the State.
   LATTIMORE, J.

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

The testimony for the state shows beyond question a sale of whisky by appellant to the prosecuting witness. The record contains four bills of exception, the first of which complains of the fact that witness Lambert was permitted to testify that on the day of the alleged sale of intoxicating' liquor he gave $3 to the party who purchased the whisky from appellant. There was no hearsay evidence admitted, and we fail-to discern the validity of the objection. If the state could introduce in evidence no testimony of any transaction save such as took place in the presence of appellant, it would be impossible for the state to ever make out its ease.

The next bill of exceptions presents appellant’s complaint of the asking of a question which was answered in the negative. There is nothing hurtful in the question asked, and, the answer resulting in the eliciting of no testimony injurious to the appellant, we perceive no error in the matter complained of.

Appellant also has a bill of exceptions to the overruling of his motion for new trial based upon newly discovered evidence. The order of the learned trial court recites that when the motion for new trial came before him he heard same, and the evidence then presented and overruled the motion. It is the holding of this court since the Black Case, 41 Tex. Cr. R. 185, 53 S. W. 116, that all matters relating to errors in the overruling of motions for new trial, which involve the hearing of evidence and the preservation of same as showing the error, must be filed during term. Ash v. State, 93 Tex. Cr. R. 189, 245 S. W. 927. The trial term ended on June 23d, and the bill of exceptions was not filed until July 14th thereafter. The state insists that we cannot consider said bill because filed too late, and we are in accord with this contention.

The remaining bill of exceptions complains of the rejection of the answer to a question propounded to prosecuting witness while on the stand; the question being as follows: “How long had it been since you had some whisky on hand?” As stated in the bill, the object of the defense in asking this question seems to have been to show that the liquor the prosecuting witness had at the time had been gotten by him at Cle-burne, and not from appellant. If such was the purpose of the question, it was not apparent from the form of same. It is stated in the bill that appellant expected to show by said witness that he had only one lot of whisky, or what was claimed to be whisky, in his possession on that day. No witness was introduced on the trial of the case who swore that the prosecuting witness had gotten the liquor, claimed by him to have been obtained from appellant, at Cleburne, nor was any statement made by said prosecuting witness introduced to that effect In this condition of the record we think the learned trial judge justified in holding the question and its answer immaterial and irrelevant to any issue in the case.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.-

When the order and judgment overruling a motion for new trial recites that the court heard evidence, and such evidence is not preserved or here presented by statement of facts or bill of exceptions properly filed during term time, this court uniformly, holds to the theory that the action of the trial court was correct. If the appellant be not satisfied that such • evidence supports the conclusion reached by the lower court, he should bring it either by statement of facts or bill of exceptions filed during term time, before the appellate court for review. In the instant case no statement of facts or bill of exceptions relating to the extraneous matter, filed during term time, appears in the record. Notwithstanding the fact that affidavit was attached to the motion for new trial, the judgment overruling same, reciting that the court heard evidence, justifies this court in upholding the action of the lower court in. declining to grant said motion. Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167; also, Trazmond Crouchett v. State, 271 S. W. 99, opinion this day handed down. In Washington v. State, 86 Tex. Cr. R. 652, 218 S. W. 1043, we think we went too far in holding it necessary that the state traverse in terms the motion for new trial when accompanied by supporting affidavits, and, in so far as said case contravenes what is now said, same will be overruled.

The motion for rehearing will be overruled.  