
    HORNE v. STATE.
    (No. 9555.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Denied June 2, 1926.)
    I. Criminal law <&wkey;>598(6) — Continuance to obtain testimony of witnesses, for whom no process was requested until ten days before trial, nearly a year after indictment was filed, held properly denied.'
    Continuance to obtain testimony of witnesses, for whom no process was requested until ten days before trial, nearly a year after indictment was filed, helé properly denied for want of diligence.
    ,2. Criminal law <©=>116©(/2(10), 1172(8) — Defendant was not harmed by reading to jury, and setting out in charge, all counts, though charge should have set out only count submitted, where court instructed jury to confine themselves to such count and verdict was in response thereto.
    Court should have set out in charge only count of indictment submitted to jury, but where he instructed jury to confine themselves to such count, and verdict was in response thereto, defendant was not harmed by reading and setting - out in charge all counts.
    <&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
    
      3. Criminal law &wkey;37l (10) — Testimony that defendant poured whisky out near home w.ithin two hours after searching premises held admissible, in trial for possessing equipment for manufacturing liquor, to show intent, connect defendant with such offense, and to defeat defense that copper boiler found by sheriff was used for other purposes.
    In trial for possessing equipment for manufacturing intoxicating liquor, sheriff’s testimony as to seeing defendant pour corn whisky out of jar about 200 yards from his home, within about two hours after searching premises and finding equipment, held admissible to show intent, connect defendant with offense charged, and to defeat defensive theory that copper boiler found by sheriff was used for washing purposes, and that other utensils were left there by others.
    4. Witnesses <&wkey;269(2) — Cross-examination of defendant’s wife as to whether she used stove and boiler lid for washing clothes held proper, as germane to issue raised by her direct testimony that she used boiler, claimed to be still, for washing purposes, though she did not testify as to stove or lid on direct examination.
    Cross-examination of defendant’s wife as to whether she used stove and boiler lid for washing clothes was germane to issue raised by her direct testimony that she used boiler, which state claimed was a still, for washing purposes, and hence permissible, though she did not testify as to stove or lid on direct examination.
    5. Criminal Iaw'<&wkey;I I70'(2) — Excluding picture of steam boiler, resembling boiler which state claimed was still, but defendant contended was used for boiling clothes, to contradict sheriff’s testimony that he had never seen wash boiler like that found, held harmless, where defendant interrogated sheriff as to matter, defendant’s wife testified fully as to use of boiler, and minimum penalty was assessed.
    Error, if any, in exclusion of picture of steam boiler, resembling boiler which state claimed was a still, but defendant contended was used for boiling clothes, to contradict sheriff’s testimony that he had never see a wash boiler like that found, was harmless, where defendant fully interrogated sheriff as to matter, defendant’s wife fully testified as to all uses for which boiler was made, and minimum penalty was assessed; mere fact that sheriff never saw such a wash boiler not being likely to influence jury.
    6. Intoxicating liquors <&wkey;236(l9), 238(1)— Evidence held sufficient to take to jury question of guilt, and sustain conviction, of possessing equipment for manufacturing liquor.
    Evidence held sufficient to take to jury question of defendant’s guilt, and sustain conviction, of possessing equipment for manufacturing intoxicating liquor.
    On Motion for Rehearing.
    7. Criminal law &wkey;>1128(2) — Statements in argument and brief explaining delay in applying for process for witnesses named in application for continuance cannot be considered, where not embraced in bill of exceptions nor otherwise shown by record to have been called, to trial court’s attention.
    Appellate court cannot consider statements in argument and brief, explanatory of delay in applying for process for witnesses named in application for continuance, that papers in case were lost for long time and expected to be substituted, but Were unexpectedly recovered, where such matters were not embraced in bill of exceptions and record did not otherwise show that they were called to trial court’s attention.
    8. Criminal law &wkey;>l 128(2) — Appellate court cannot base decision on matters coming into record after appeal, is perfected.
    Appellate court must deal with record as it finds it,- and cannot base decision on matters coming into record after appeal is perfected.
    9. Criminal law <&wkey;l092(l4)— Recital in bill of exceptions that certain objections were made is not equivalent to judge’s certificate that matters complained of occurred.
    Mere' recital in bill of exceptions .that certain objections to reading certain counts in indictment to jury were made is not equivalent to judge’s certificate that matters complained of occurred.
    ID. Criminal law <&wkey;l092(!4) — Failure to prevent reading of abandoned counts in indictment cannot be considered, in absence of judge’s certificate that they were read or that there had been previous trial or abandonment of any count.
    In absence of judge’s certificate that abandoned counts in indictment were read, or that there had been previous trial or abandonment of any count, court’s failure to prevent reading thereof cannot be considered.
    11. Criminal law &wkey;>l 120(6) — Error in excluding advertisement describing wash boiler and preserving steamer held not shown in trial for possessing equipment for manufacturing liquor, in absence from bill of showing of source or connection with equipment.
    In trial for possessing equipment for manufacturing intoxicating liquor, exclusion from evidence of advertisement describing up-to-date copper wash boiler and preserving steamer held not error, in absence of information in bill of exceptions as to source of advertisement or its connection with equipment described by sheriff.
    r>TiV>r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    R. D. Horne was convicted of possessing equipment for the purpose of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    D. J. Brookreson, of Benjamin, for appellant.
    
      Sam D. Stinsón, Státe’s'Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the district court of Knox county of the offense of possessing equipment for the purpose of manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the sheriff and his deputies raided the premises of the appellant, and found what the state’s witnesses denominated a copper still, some barrels of mash, and a coal oil burner in a dugout, lighted and burning, and other utensils claimed by the state that were used for the purpose of manufacturing intoxicating liquor. The appellant failed to take the stand and testify, but introduced -his wife and son as witnesses, whose testimony shows that it was his contention that the coppei boiler in question was used for washing purposes, and the mash 'and other utensils found, and claimed by the state possessed for the purposes of manufacturing intoxicating liquor, were left there by some Mexican cotton pickers.

Appellant complains of the action of the court in overruling his application for continuance, seeking to obtain the testimony of certain witnesses, whom he claimed would testify that the copper boiler claimed l?y the state to be used in manufacturing intoxicating liquor was used for washing purposes, and that the other utensils were left there by Mexican cotton pickers. We are of the opinion that there was no "error in overruling this motion, on account of no diligence being shown to secure the attendance of said witnesses. The record discloses that the indictment was filed on the 24th day of March, 1924, and that a trial of this case was had on the 23d day of February, 1925, and on March 5. 1925, the court set -this case again_ for trial for March 16, 1925. No process was requested until March 6, 1925, for said witnesses. These facts negative any diligence wb atever to secure said testimony, and no circumstances justifying the lack of diligence were shown.

Complaint is made to the action of the court in permitting the state to read all the counts ia the indictment to the jury, because upon the former trial the state elected to try the appellant solely on the third count, charging possession of equipment as above stated; and to the action of the court in his preliminary statement in his charge to the jury, setring out all four of said counts, because it is contended that same was specifically calling the jury’s attention to extraneous matters which would result in injury, to the appellant. The court should have set out in his charge only the count, or counts, submitted to the jury; but having instructed the jury to confiné themselves to the third count in the indictment only, and the verdict being in response thereto, we fail to see any harmful injury that could have resulted to the appellant from the matters herein complained of.

Complaint is also made to the action of the court in permitting the sheriff to testify that after Searching the premises and finding the articles above mentioned, and witbin about an hour and a half or two hours thereafter, he observed the appellant returning home, and when about 200 yards distant, pour some com whisky out of a fruit jar and throw it on the ground, because it is contended that "said evidence was proving a different offense from the one for which appellant was then being tried. We are of the opinion that there is no merit in this contention. We think this testimony was admissible for the purpose of showing intent, and was a circumstance which would bend to connect the defendant with the alleged offense for which he was then on trial, and would also tend to defeat the defensive theory. Nichols v. State, 97 Tex. Cr. R. 174, 260 S. W. 1050, and authorities therein cited.

Appellant complains of the action of the court in permitting the state on cross-examination to ask the appellant’s wife if she used the stove that was found burning and the lid to the boiler in question, for washing clothes, because it is contended that appellant had not brought out on examination in chief of his wife any evidence pertaining to said stove or lid,. and the action of the state was in effect making a witness of his wife against him. There is no merit in this contention. The record shows that appellant, in support of his defense, on direct examination, had his wife to testify fully to the effect that she used the boiler for washing purposes, which the state contended was used by the appellant for a still; and the cross-examination complained of was germane to the issue raised by the testimony in chief of his wife. Ward v. State, 70 Tex. Cr. R. 393, 159 S. W. 278; Houseton v. State, 83 Tex. Cr. R. 453, 204 S. W. 1007; and for collation of authorities, see Branch’s Ann. Penal Code, § 152.

Appellant complains of the refusal of the court to permit him to introduce in evidence, in connection with his cross-examination of the sheriff, a picture of what was called a steam boiler, resembling the boiler which the state contends was a still and which the defendant contends was used for boiling clothes; because it is contended that said picture would tend to contradict testimony of the sheriff to the effect that he (said witness) had never seen a wash boiler like the one in question. We fail to see any injury resulting, from the action of the court in this respect, as the defendant was allowed to fully interrogate the sheriff relative to said matter, and tlie wife was permitted fully to testify to all the uses for which this boiler was made, and the mere fact that the sheriff had never seen a similar one used for washing purposes would not likely influence the jury; and in 'view of the minimum penalty having been assessed, we are forced t-o conclude that if tbiere was any error committed, it was harmless.

The appellant complains of the action of the court in refusing to give a peremptory instruction to the jury to return a verdict' of not guilty, because of the insufficiency of the evidence to sustain a conviction. We have carefully examined the bills of exceptions relating to these matters, and are of the opinion that the record fails to support his contention.

After a careful examination of the entire record, we are of the opinion that same fails to show any reversible error in the trial of this ease, and the judgment of the trial court is accordingly 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 judges.

On Motion for Rehearing.

MORROW, P. J.

Process for the witness named in the application for a continuance was first applied for about one year after the indictment was filed. This delay, unexplained, would obviously show a lack of diligence. In argument and in the brief, appellant explains the delay with the statement that for a long time the papers in the case were lost and that it was expected that they would be substituted, but they were unexpectedly discovered. If these matters were embraced in the bill of exceptions or the record otherwise showing that they were called to the attention of the trial court, they would be persuasive as meeting the delay. The alleged facts explaining the delay not being before this court in any authentic manner, their consideration is precluded. It is imperative that the court deal with tbte record as it finds it. It cannot base its decision upon matters coming into the record after the appeal is perfected.

The complaint of the failure pf the court to prevent the reading to the jury of certain counts in the indictment is not Shown by the bill of exceptions to have been error. The mere recital that certain objections were made is not equivalent to a certificate by the judge showing that the matters of which complaint is made took place. Quinney v. State, 86 Tex. Cr. R. 858, 216 S. W. 882. In the present bill, aside from the objections made, there is no certificate that there had been a previous trial or an abandonment of any count in the indictment.

The sheriff testified to finding a still and various other items constituting equipment for the manufacture of intoxicating liquor upon the premises of the appellant. One of the appellant’s witnesses testified that the boiler exhibited to the jury was not a part of. a still, but was a wash boiler. The sheriff was cross-examined upon this point, and said it was not a wash boiler. In bill of exceptions’No. 14 complaint is made of the refusal of the court to receive in evidence an advertisement describing an up-to-date and practical all-eoppor wash boiler and preserving steamer. '" We fail to discern the connection between this advertisement and the equipment'described by the sheriff. The bill gives no information touching the source from which the advertisement comes or its connection with the transaction. Upon our examination of the statement of facts, we have failed to perceive its relevancy.

The motion for rehearing is overruled.  