
    BATES v. STATE.
    (No. 8466.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1925.
    Rehearing Denied April 29, 1925.)
    1. Intoxicating liquors &wkey;>236(l9) — Conviction of manufacturing held supported by evidence.
    Evidence held sufficient to support conviction of manufacturing intoxicating liquor.
    2. Criminal law &wkey;s598(7) — Continuance for absence of witnesses held properly refused for want of diligence.
    Continuance for absence of witnesses, on one of whom no service was had, while it was not shown that other was in attendance on first day of term, or, if not, that any other, process than subpoena served on him before beginning of term was asked, held properly refused for want of diligence.
    3. Intoxicating liquor <S=233(2) — Testimony as to whisky containers and malt found in house near defendant’s residence held admissible.
    Testimony as to finding fruit jars containing whisky, and moist sack of sprouted corn, referred to as malt for use in making whisky, in house few feet from defendant’s residence, held admissible, in prosecution for manufacturing intoxicating liquor.
    4. Criminal law &wkey;»I036(l), 1044 — Defendant not objecting to testimotiy until given, nor moving to exclude or withdraw it, cannot object on appeal.
    Defendant, not objecting to officers’ testimony in his presence as to what occurred and statements by him while with them until all had been related to jury, nor moving to exclude or requesting withdrawal of testimony, icannot object thereto on appeal.
    5. Criminal law &wkey;>4l7(IO) — Admission or confession of another inadmissible unless' it excludes guilt of defendant.
    Admission or confession by another than defendant is inadmissible, even in cases of circumstantial evidence, unless guilt of party confessing would exclude that of defendant, and each case must be decided on its own facts.
    6. Criminal law &wkey;>4l9, 420(12) — Affidavit and notary’s testimony as to affiant’s statement that defendant had nothing to do with operation of still held properly excluded as hearsay.
    - Affidavit, and notary’s testimony as to affi-ant’s statement, that defendant had nothing to do with and owned no interest in still or liquor made by affiant, held properly excluded as hearsay.
    7. Criminal law <&wkey;>359 — Confession of guilt by another held inadmissible as not inconsistent with defendant’s guilt.
    Affidavit that affiant made liquor and operated still found on defendant’s premises held inadmissible as not inconsistent, with defendant’s guilt, in view of testimony that still was operated by two men.
    8. Witnesses <©=3337(6) — Question as to plea of guilty of possession, three years' before prosecution for manufacture of whisky, held not too remote to affect defendant’s credibility.
    Question to defendant, in prosecution for manufacturing intoxicating liquor, as to whether he had not pleaded guilty of possessing whisky 3 years before, held not too remote to affect his credibility.
    9. Criminal lav/ <&wkey;720 (6)— State’s attorney’s charge of subornation of perjury by defendant held not improper argument.
    State’s attorney’s charge that defendant was, not only guilty of crime charged, but had caused his wife and little boy to perjure themselves in his behalf, held not improper argument, but mere expression of opinion on facts before, jury.
    On Motion for Rehearing.
    10. Criminal law &wkey;>l 144(12) — Defendant’s testimony as to plea of guilty on similar charge 3 years b.efore presumed properly admitted.
    In absence of showing in bill of exceptions as to whether charge of possessing liquor, of which defendant pleaded guilty 3 years before prosecution for manufacturing, was felony or misdemeanor, appellate court will presume that trial court correctly admitted defendant’s testimony as to such plea to discredit him as witness.
    
      <S&wkey;ITor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      Appeal from District Court, Fisher County; W. R. Chapman, Judge.
    J. A. Bates was convicted of manufacturing intoxicating liquor, and he appeals.
    .Affirmed.
    C. P. Chastain, of Hamlin, and King & York, of Austin, for appellant.
    .Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austip, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Fisher county of manufacturing intoxicating liquor, and his punishment fixed at 2 years and 9 months in the penitentiary.

A still and several gallons of whisky, and many containers having in them small quantities of whisky or the odor of same, were found on appellant’s premises. The still was about 409 yards from the house and about a half gallon of whisky was in a jar at the still. Three gallon jars of whisky were hidden in a cane patch, and a jar with whisky in it was under the house; a quantity of sprouted corn was found in the house. Appellant said to the officers that he did not think it was against the law to make whisky for one’s own use or words to that effect. We quote from the testimony of the officer:

“The defendant did not deny the ownership of the liquor. Mr. Bates asked me to taste of this stuff and see what 'I called it, and I tasted of it, and I told him it was whisky, and he says ‘Well,’ he says, T want to—I’ve got to rustle some bond before they take me to Abilene,’ and so he and I started on up to the house, and Mr. Bates talked along, and he says, ‘McCombs, you know me and you know that I wouldn’t sell this whisky to any one.’ He says, ‘Mr. Phipps he thinks that I might sell it to his boys or his neighbors’ boys.’ I says, ‘Bates, you know it’s against the law to make this stuff anyway, don’t you?’ He said, ‘Yes.’ Might have been a little more. He did not deny that the still was his. He did not deny manufacturing whisky, and he did not deny the ownership of the whisky. He did ,not tell me then that the still belonged to any other person.”

Another witness swore that on the night before the raid on appellant’s place he went to a point in the vicinity of the still when same was in operation and saw two men working around it. This witness went back the next day with the posse, and with some of the other parties went at once to the vicinity of the still. Presently appellant appeared, going to the still and moving rapidly. When he got within aboüt 10 feet of it a companion of the witness halted appellant. Appellant said at the time it- was his still but he was not making but a little for his own use—had 'not sold any. The facts amply support the verdict of guilt.

There is a bill of exceptions complaining of the refusal of an application for continuance, asked because of the absence of two witnesses. As to one of the witnesses, it is shown that service of subpoena was had on him before the beginning of the term of court at which the trial was had, but there is no effort made to show that said witness was in attendance upon the first day of the term or that if not, any other process was asked for him. This was not diligence. No service was had upon the other witness, and no subpcenas are attached to the application. The bill manifests no error.

Complaint is made that the state witnesses were permitted to testify to what they found in a small house of appellant. The bill is without merit. The small house was hut a few feet from the residence, and in it were found several dozen fruit jars, some of which contained small quantities of whisky. Another hill of exceptions complains of the admission in evidence of the finding in said house of a moist sack of sprouted corn, which was referred to as malt to be used in making the whisky.

Appellant’s bills of exception Nos. 5 and 6 show that appellant sat quietly by while the officers were testifying at length to what occurred between him and them and to statements made by him while with the officers. No objection was made to any of the testim'ony, as appears from the qualification of the court to the bills, until the testimony had all been related in the presence of the jury. Afterward appellant made an objection, but nowhere does there appear any motion to have the testimony already before the jury excluded, or request that the same be withdrawn. An objection made to testimony after it is introduced is not tantamount to a motion to exclude or a request to withdraw. This court has often said that one accused of crime may not sit idly by and permit witnesses to testify and then be heard to object.

Bills of exception Nos. 7 and 8 present appellant’s complaint of the rejection of an affidavit made by one Mangum, and of the testimony of a notary public as to what Mangum said to him. In our opinion neither bill presents any error. This court has always held that one accused of crime might defend by showing by proper testimony that another than he was the guilty party,, and in exceptional cases of purely circumstantial evidence testimony of admissions oh confessions by another that he committed the crime, has been admitted. These cases have been recently reviewed in the case of Stone v. State (Tex. Cr. App.) 265 S. W. 900, opinion handed down November 5, 1924, and we do not feel called on to restate or analyze the principles involved. It is not necessary in order to properly dispose of the questions before us. Suffice it to say that we do not intend to extend the exception allowing such admission or confession to any case even of ■ circumstantial evidence, unless the guilt of the party whose confession is offered would exclude the guilt of the party, on trial, and, as is the rule in regard to most exceptions, each case must be decided on its own facts.

As applied to the affidavit and the testimony of the notary, offered in this ease, none of the eases referred to in which we held the exception to apply support appellant’s contention. The affidavit in question not only affirms that Mangum had made the liquor and operated the still in question, but goes further at length in an effort to state that appellant had nothing to do with it, owned no interest in it, and knew nothing of it. This was rank hearsay, and under no view could be held to be a circumstance. What we have just said applies fully to the proffered testimony of the notary, referred to in bill of exceptions No. 8. He offered to testify that Mangum not only said that he made the liquor, etc., but that appellant had nothing to do with it, knew nbthing of it until he (Mangum) told him, and that appellant owned no part or interest in said liquor or still. The affidavit was offered as a whole and likewise the testimony of the notary. The objections to both were made in the same form. Wé think the court properly sustained same. It is our further opinion under the facts of this case that, if Mangum's confession had bee'n offered without the accompanying statements which made it clearly open to objection, it should not have been received, beeáuse it was in testimony that the still was being operated the night .before .by two men, and unquestionably, if Mangum diad admitted himself to be guilty, this would not have been inconsistent with the guilt of appellant.’ Each might be equally guilty in the transaction.

A question to appellant while on the witness stand, if he had ,not during 1921 pleaded guilty to having whisky in his possession, was not too remote as affecting his credibility.

Bill of exceptions No. 10 complains that the state’s attorney in his argument charged that, not only was appellant guilty of the crime here laid at his door, but also that he had caused his wife and little boy to perjure themselves in his behalf. This seems to us no more than the expression of the attorney’s opinion upon the facts before the jury. The same may be said of the in--ference of guilt drawn by said attorney in his argument, from the fact of the finding of the sack of sprouted corn and the fruit jars and still upon appellant’s premises. It was not improper to argue these facts as foundation for a conclusion of guilt.

The case has been carefully examined, and, believing no reversible error appears, the judgment will be affirmed.

On Motion for Kehearing.

Appellant renews complaint of the refusal of a continuance. We said in our former opinion that there was no diligence. A reexamination of the record confirms our view. Appellant was arrested October 1, 1922, as the result, and at the time of, a raid on his premises. He was indicted February 17, 1923. The trial term began September 3, 1923, or nearly '8 months after appellant’s indictment In his application for continuance, filed September 13th,-he says that he obtained in-county process for witness Cooper on July 31st, which was returned into court September 3d showing, to have been served. There is no showing of the date witness was directed' to attend court, and no subpoena is attached to the application for contihuance, and we have no possible means of knowing when process served, if any, directed the attendance of the witness. It is stated in the application that prior to September 3d appellant heard his said witness had left the county and procured another subpoena and sent it to Foard county, which was returned not served. It is admitted that witness was not present on September 3d, and there is no showing that any process was procured for hini after that date or after the case was set for, trial. This is so manifestly not diligence that it is not necessary to discuss it further.

Appellant insists that we misunderstood his bill of exceptions No. 5, and that our statement that he did not move to strike out the evidence which he had permitted in was erroneous. We have again examined the bills and find in them no certificate of the trial judge that any motion was made to strike out such testimony, but on the contrary the judge certifies to all the proceedings that then took place, and he fails to set out that any motion was made to exclude the testimony. The record does not reveal a case where some chance expression or inadvertent answer was made by a witness which could not have been reasonably- expeieted, and which no reasonable diligence on the part of the appellant could have prevented, but shows that the witness, was .permitted to give testimony which covers nearly a half page of the record without any objection. This would be no such case as could result from the giving of an unexpected answer, and we find no error in the court’s action as reflected in said bill of exceptions.

Appellant also insists that, we did not correctly decide the point raised by him in his bill of exceptions No. 9. Said bill shows that while appellant was on the witness stand he was asked if in September, 1921, he was not charged in the federal court with possessing whisky, and if he did not plead guilty to said charge in, May, 1922. The objection urged by appellant was that it was too remote to be used as a circumstance against him. We did not think so on original consideration and see no reason to change our views. The further statement in the bill of exceptions that said evidence could not be material evidence to discredit him as a .witness, presents no ground for the rejection of the testimony. We are not apprised by the bill of exceptions as to whether the charge against appellant was a felony or a misdemeanor. Our presumption is in favor of the correctness <of the action of the trial'court.

Finding no matter complained of in the motion which leads us to conclude that the disposition of the case already made was erroneous, the .appellant’s motion for rehearing will be overruled.  