
    HARDAWAY v. STATE.
    (No. 12715).
    Court of Criminal Appeals of Texas.
    Nov. 13, 1929.
    Rehearing Denied Jan. 8, 1930.
    
      P. R. Rowe, of Livingston, for appellant-. A. A. Dawson, State’s Atty., of Austin,-for the State.
   CHRISTIAN, J.

The offense is selling intoxicating .liquor; -the punishment, confinement in the penitentiary for one year.

A witness for the state testified that he bought a pint of whisky from appellant on or about the loth of April, 1927. He said appellant asked $1.25 a pint, and that, having only paid appellant $1, he was still due him 25(⅜. He described the whisky as being red, gave a description of the bottle, and described the place where the transaction was had. No attempt was made by appellant to impeach the state’s witness. Appellant offered no testimony.

Appellant questioned the authority ofi the trial judge to sit as judge of the district court of Polk county, in which appellant’s case was tried. It appears that the trial judge had theretofore been duly elected and had qualified as required by law. At a general election held in 1928 it was determined that lion. S. A. McCall had defeated the judge trying the instant case. At the instance of the trial judge, an injunction was issued by the district court of Montgomery county, restraining Hon. S. A. McCall from receiving his certificate of election and from qualifying as judge of the district embracing Polli county. At the time of the instant trial the injunction was in effect, and 1-Ion. S. A. McCall had not qualified. This court is not concerned with the controversy between Hon. S. A. McCall and the -judge trying this case. Section 17 of article 16 of our Constitution provides that “all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified.” Hon. S. A. McCall not having qualified for the office to which he had been elected, the judge trying the instant case was within the purview of this provision in continuing to perform the duties of the office of district judge.

Acting without a warrant of arrest, a deputy sheriff went to appellant’s house for the purpose of arresting him. Upon entering the house he found a gallon glass jar containing approximately a quart of whisky. He testified to this fact over a proper objection interposed by appellant. We deem it unnecessary to decide whether appellant’s objection was well taken. The testimony of the state’s witness to the effect that he bought whisky from appellant was uncontradicted. This witness stood before the jury unimpeached. By his testimony appellant’s guilt was made plain beyond question. If the testimony of the officer concerning the finding of the whisky in appellant’s residence was inadmissible, the fact that appellant’s guilt is shown beyond question by uncontradicted legal evidence, and the further fact that appellant received the minimum penalty, would, in our opinion, render harmless the reception of the alleged illegal testimony. Cox v. State, 111 Tex. Cr. R. 260, 12 S.W.(2d) 586.

Bill of exception No. S presents the following occurrence: The district attorney asked the state’s witness John Hardy, upon redirect examination, if he had ever been in any trouble with appellant. The witness answered that he had never been in any trouble with appellant in his life. Appellant objected to the question and answer, on the ground that said question and answer were irrelevant, prejudicial, and inadmissible for any purpose, and on the further ground that appellant had not attacked the credibility of the state’s witness, and had not attempted to show any prejudice or ill feeling on the -part of said witness against appellant. There is nothing in the bill of exception that would verify the truth of appellant’s objections. The bill contains a mere statement of the ground of objection. It is the rule that a mere statement of a ground of objection in a bill of exception is not. a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Annotated Penal Code of Texas, § 209, p. 134; Edelen v. State, 103 Tex. Cr. R. 562, 281 S.W. 1078; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S.W. 569. The bill not being sufficient to enable us to determine whether the trial court committed error in the matter complained of, we must presume that the court’s ruling was correct.

Failing to find reversible error, tbe judgment is affirmed.

PER CURIAM. Tbe foregoing opinion of tbe Commission of Appeals bas been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rebearing.

HAWKINS, J.

We think none of tbe cases cited by appellant goes so far as to support his proposition that under no circumstances could tbe deputy sheriff’s ¡testimony — if inadmissible — -be held harmless. In tbe McWil-liams Case, 44 Tex. 117, which seems to be relied on as tbe leading authority, the witness whose testimony was affected by tbe illegal evidence bad been indicted for tbe same offense, and tbe prosecution against him bad been'dismissed; this at least left the witness in a very unenviable attitude before tbe jury. An examination of tbe other cases to which we are referred reveals that tbe evidence there improperly admitted was pertinent to some controverted, issue. In tbe present case the evidence of a sale of intoxicating liquor by appellant was not questioned in any way, and no facts appear which cast reflection of any kind upon tbe witness testifying to said sale.

Under the circumstances we feel con-straineid to adhere to tbe conclusion announced in our original opinion. Tbe authority of the judge to preside in the trial of tbe case seems not open to serious question.

Tbe motion for rehearing is overruled.  