
    BROOKS v. STATE.
    (No. 9839.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1926.)
    1. Criminal law <@=>1111(1) — Record showing what court did will be accepted as true, in absence of biii of exception containing evidence presented.
    In absence of bill of exceptions presenting evidence heard by court, Court of Criminal Appeals must attribute correctness to record evidence showing what court did.
    2. Intoxicating liquors ■ 137 — Charge that manufacture of liquor was prohibited except for medicinal purposes for one’s self and family held proper.
    Where only defense was manufacture of liquor for medicinal purposes, supplementary charge that manufacture of liquor is prohibited except where solely for medicinal purposes for one’s self or family, given in answer to request by jury for further instructions, held proper.
    
      3. Criminal law <®=»1184 — Judgment and' sentence, including offenses other than submitted by court, must be reformed to include only offense submitted.
    Where court submitted only first count in indictment charging manufacture of liquor, judgment and sentence reciting that defendant was guilty of manufacture and possession of liquor and possession of equipment for manufacture must be reformed to adjudge defendant guilty only of offense of manufacture of liquor.
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    Dick Brooks was convicted of manufacturing liquor, and he appeals.
    Amended and affirmed.
    T. A. Bledsoe, of Abilene, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbepk, for the State.
   BATTIMORE, J.

Conviction. in district court of Taylor county of manufacturing intoxicating liquor; punishment, one year and' one day in the penitentiary.

There are no hills of exception in the record. Appellant asked a special charge, in substance, that if the jury found that appellant manufactured whisky, he could not be convicted unless they further found and believed 'from the evidence beyond a reasonable doubt that he did not manufacture it for medicinal purposes for his wife or himself. This charge was given.

During their deliberations the jury came in and asked the trial court in writing for further instructions upon a point deemed by them as stated in contradictory terms in the main charge and the special charge given. Thereupon the court handed the request of the jury to counsel for appellant and prepared and gave to the jury in writing the following:

“Gentlemen of the jury, you are instructed 'as the law that one is not permitted to manufacture intoxicating liquors for beverage purposes, but may do so solely for medicinal purposes for himself or dependent members of his family.”

In his motion for new trial appellant set up that while his counsel was reading the request of the jury, above referred to, the court read to the jury the further additional instruction above set out, and that said additional instruction was not submitted by the court to defendant or his counsel before being given to the jury, and no opportunity was given him to object or except to the same. In said motion he apparently states what his objections would have been to the additional charge given. The court’s order overruling the motion for new trial says in terms that the court heard said motion and the evidence thereon submitted, and is of the opinion that same should be overruled. There is no bill of exceptions before us presenting the evidence heard by the court. In the absence of' some showing to the contrary, we are compelled to attribute correctness to the record evidence showing what the court did.

As applicable to the facts of this case, however, we see no objection to the supplemental charge given in answer to the jury’s request. No claim is made on behalf of appellant that he had any defense in this case except that he was making the liquor for medicinal purposes for himself and family.

The indictment in this case contained three counts, the first charging the unlawful manufacture, the second the unlawful possession for purposes of sale, and the third the unlawful possession of equipment for manufacturing such liquor. In his charge to the jury the court submitted only the first count in the indictment. The judgment recites that appellant is guilty of the offense of manufacturing and possessing liquors and possessing equipment for the manufacture, etc.; the sentence follows the judgment. The judgment as entered will be reformed so as to adjudge the defendant guilty of the offense of manufacturing intoxicating liquor, fixing his punishment at one year and one day in the penitentiary, and the sentence will be reformed so as to follow the amended judgment.

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