
    CHANDLER v. STATE.
    (No. 9774.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1926.)
    1. Criminal law <&wkey;>394.
    Search and Seizure Law of the 39th Legislature (1925) c. 149, held not applicable, where it had not gone into effect at time of trial at which evidence, alleged to have been obtained without search warrant, was admitted. '
    2. Witnesses &wkey;>53(4).
    In prosecution for possessing intoxicating liquor, wife of accused can be cross-examined on matters put in issue by her testimony on direct examination.
    3. Witnesses &wkey;>-255(7) — Doctor could refresh memory from books to ascertain last time he had1 treated defendant, accused of possessing intoxicating liquor, to whom he had recommended use of whisky.
    Where accused, in prosecution for possessing intoxicating liquor, claimed he used whisky for medicinal purposes, and doctor testified, without objection, that he had seen and treated accused and his family, and that whisky would be good for him after he had quit work, it was not error for doctor to refresh memory from his books to ascertain last time he had seen and treated appellant.
    4. Criminal law &wkey;»37l(IO) — Evidence of sale of whisky by accused held admissible to rebut defense that it was for medicinal purposes.
    In prosecution for possessing intoxicating liquor, where accused claimed whisky was for medicinal purposes, testimony, showing that witnesses had purchased whisky from accused prior to time of alleged offense in question, held admissible to rebut such defense.
    5. Intoxicating liquors,<&wkey;235 — Exclusion of evidence that accused did not take whisky to work held not error, where state alleged possession at accused’s home.
    In prosecution for possessing intoxicating liquor, exclusion of evidence that accused had not taken whisky to mill where he worked held not error, since it did not tend to prove that he did not have whisky at his home, as contended by state.
    6. Criminal law <&wkey;>l 111(3).
    When bill of exception is accepted with qualification thereto without objection, appellant impliedly admits truthfulness of such qualifications.
    7. Criminal law <&wkey;llll(3).
    Court of Criminal Appeals is bound by qualification to bill of exception, which has not been objected to.
    8. Criminal law &wkey;>1092(6).
    Bill of exception, which was not presented and filed until after adjournment of court, cannot be considered on appeal.
    Commissioners’ Decision.
    Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
    Charlie Chandler was convicted of unlawfully possessing intoxicating liquor, and he appeals.
    Affirmed.
    John P. Ehlinger, of La Grange, for ap=-pellant.
    . Sam D. Stinson, State’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 Fayette county for unlawfully possessing intoxicating liquor, and his punishment assessed at two years in the penitentiary.

Briefly stated, the facts show that the officers went to the premises of the appellant, a negro, and, upon reaching the house, inquired of his wife where they could find him, to which she replied, in the back yard. 'The witnesses for the state testified that about that time they heard a crash, and ran around, the house to the back yard, and there saw the appellant going towards the front of the house, and found a five-gallon jug, broken, with whisky on the ground. The officers testified that from the appearance of the ground there must have been about three gallons of whisky in the jug at the time it was broken,. and that they dipped up some of the whisky, and it was • produced upon the trial. They further testified that, upon asking appellant why he broke the jug, he laughed, and, upon inquiry, he told them that the jug was not quite full, and there were about three gallons in -it at the time it was broken. The appellant’s defense was that he had been working in a cotton oil mill, and that he was using the whisky for his health, and denied there being over a quart in the jug at the time he broke it. This is a sufficient statement of the facts for this opinion.

Appellant complains of the refusal of the court to exclude all the testimony of the state introduced in the case, because it was not shown that the officers at the time had a legal search warrant to search said premises. The state attempted to prove orally that the officers had a proper search warrant and what its contents were, and showed it had been misplaced on account of a change of justice of the peace since the issuing and filing of same. A sufficient answer to this contention is that, at the time of the trial and the adjournment of the term of said court, the Search and Seizure Law of the 39th Legislature, e. 149, had not gone into effect, and this contention made by the appellant could not apply to this case for that reason. Bailey Harrison v. State (No. 9711) 279 S. W. 455, delivered on January 20, 1926, yet [officially] unreported.

It is also the contention of the appellant that the court erred in permitting the state on cross-examination of his wife, if we understand the bill,- to interrogate her on matters that he contends had not been brought out from her by him in chief. The court’s qualification to the bill states that the cross-examination was upon subjects and matters which the appellant had brought out and put in issue by his wife’s testimony on direct examination. This bill as presented shows no error. Branch’s P. 0. § 152.

In bill of exception No. 3, appellant complains of the action of the court in permitting the state to have Dr. Cook to refresh his memory from his books, and to show, if he could, when was the last time he had treated the appellant or had seen him. It is contended by the appellant that the state, on cross-examination, should not have been permitted to show" by this witness any visits made by him to appellant’s family. The court’s qualification to this bill shows that when Dr. Cook, after testifying that he knew the conditions at the oil mill, and on former occasions had seen and treated the appellant, and that whisky would be good for him after he had quit work, but could not tell the dates when he had visited appellant, stated he could tell from his books, then the court permitted the district attorney to have him bring his books and show the dates. The said qualification further shows no objection was made by the appellant to the physician’s stating the visits made to appellant’s wife and family, nor how to ascertain the visits made to the appellant. The qualification clearly shows that no error was committed by the court in this instance.

In bills 4 and 5. appellant complains of the action of the court in permitting the state to show by the witnesses Anderson and Wilkerson that they had purchased whisky from the appellant prior to the time of the alleged offense in question. The court, in qualifying said bills, shows that defendant had offered testimony in the case to show that he had never at any time sold any whis-ky to any one, and that he was keeping the whisky in question for medicinal purposes, and this testimony, when it was offered by the state to show other sales, was not objected to by the appellant, but, at the instance of the appellant, he gave his special charge No. 1 to the jury to the effect that they could not consider said testimony of said witnesses only as a circumstance tending to prove defendant’s guilt, and for no Other purposes. We think this testimony was clearly admissible for the purpose of rebutting the appellant’s defense, and was a circumstance showing the appellant did not have the whisky in question for medicinal purposes, but for sale. Atwood v. State, 257 S, W. 563, 96 Tex. Cr. R. 249; Todd v. State (Tex. Cr. App.) 275 S. W. 1013.

Appellant complains in bill 6 of the action of the court in refusing to permit him to prove by the foreman of the oil mill that the appellant had never violated any of the rules of the company by bringing whisky to the mill, and offered to prove practically the same facts by the witnesses Rosenberg and Granville. The court’s qualification to this bill shows that the state objected to all of said testimony because it was not in rebuttal and was immaterial. We fail to see where the admission of such testimony could in any way tend to prove that the appellant did not have for sale the whisky at his home, as contended by the state.

Complaint is made by appellant in bill of exception No. 7 to the argument of the district attorney in his closing argument to the jury. The court, in qualifying said bill, shows that said argument was in reply to the argument made by counsel for the appellant, and the bill as qualified shows.no error. This court has repeatedly held that when a bill is accepted with a qualification attached thereto, without objection, that the appellant thereby impliedly admits the truthfulness of such qualifications made by the trial court, and that this court is bound thereby. Branch’s Ann. P. C. § 215.

In bill No. 8 complaint is made to the conduct of the jury while considering their verdict. This bill shows that same was not presented and filed until after the adjournment of court, which precludes us from considering the matters therein complained of. Atwood v. State, 257 S. W. 563, 96 Tex. Cr. R. 249; Armstrong v. State (Tex. Cr. App.) 278 S. W. 435.

After a careful examination of the entire record, and finding no error in the trial of ■this casé, the judgment of the trial court is' 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 court. 
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