
    McLENDON v. STATE.
    (No. 9316.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Oct. 21, 1925.
    On Application for Leave to File Second Motion for Rehearing Nov. 11, 1925.)
    I. Criminal law <&wkey;l09I (10)— Rulings of trial court on admission of evidence not reviewable, unless bill of exceptions shows objection by accused.
    Eulings of trial court on admission of evidence are not reviewable, unless it appears by bill of exceptions that evidence was improperly received over objection of accused.
    ■2. Criminal law <§=»1090(19) — Rulings of trial court on receipt of evidence not reviewable by complaint thereof in motion for new trial. Eulings of trial court on receipt of evi■dence held not reviewable by complaint thereof in motion for new trial; such complaint not operating as a substitute for bill of exceptions.
    On Motion for Eehearing.
    3. Criminal law &wkey;>351 (3) — Admission in evidence of defendant’s flight in liquor prosecution held not erroneous.
    In liquor prosecution, admission of evidence that, after defendant was arrested, he made bond and later an alias capias was given witness, who had defendant rearrested in California and brought back for trial, held not erroneous.
    4. Criminal law &wkey;>369(6), 1169(6) — Testimony showing separate transaction in liquor prosecution should have been excluded, but its admission held not'to require reversal.
    In liquor prosecution, testimony of witness that he knew he could get whisky from defendant, because he had seen another man buy some from defendant about three weeks before sale charged, should have been excluded as showing a separate transaction, but its admission held not to require reversal, where witness’ testimony that he had purchased liquor from defendant was undenied, and minimum punishment for’ offense was inflicted.
    5. Criminal law <&wkey;-l 169(6) — Reviewing tribunal has no alternative but to reverse for improper admission of testimony.
    Eeviewing tribunal has no alternative but to reverse, for improper admission of testimony, if more than minimum punishment is inflicted, or evidence improperly admitted impinges on any defense offered by defendant.
    Appeal from District Court, Orange County; Y. H. Stark, Judge.
    W. A. McLendon was convicted of. selling intoxicating liquors, and he appeals.
    Affirmed.
    Howth, Adams & Hart, and John T. Hitching, all of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MOEEOW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The purchaser named in the indictment testified as a witness and gave specific testimony to the effect that he purchased whis-ky from the appellant about the time mentioned in the indictment.

The sufficiency of the evidence is not challenged, hut appellant, *in his brief, complains of the admission of certain evidence. To invoke and authorize a revision on appeal of the rulings of the trial court upon the receipt of evidence, it is necessary that it appear by bill of exceptions that the evidence was improperly received over the objection of 'the accused. The precedents upon the subject ^re numerous. Many of them will be found collated in Vernon’s Tex. Crim. Stat. vol. 2, p. 534, note 15. The complaint in the motion for new trial will not operate as a substitute for a hill of exceptions. See Clifton v. State, 70 Tex. Cr. R. 346, 156 S. W. 1179, and other cases collated in Vernon's Tex. Crim. Stat. vol. 2, p. 535.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

When the original opinion was written, the record contained no bills of exception. Appellant has filed application for writ of certiorari alleging that two bills of exception were properly reserved, authenticated, and filed as a part of the record in this cause in the court below, but that the clerk by inadvertence incorporated them in the transcript in another ease and omitted them from the transcript in this case. Copies of the bills properly certified by the clerk are attached to the motion.

One of them complains of the admission in evidence of testimony by the sheriff that, after appellant was arrested, he made bond; that later an alias capias was given witness, who had appellant rearrested in California, and he was brought back to Orange for trial. We find no error in the admission of this testimony. Evidence of flight is admissible as a circumstance of guilt.

The specific sale of liquor charged against appellant was claimed to have been, made to Earnest Mansfield. Appellant did not testify. The bill recites that, before any testimony was introduced by appellant, the state proved by Mansfield that he knew he could get whisky from appellant because he had seen another man buy some from appellant about three weeks before. This testimony was objected to as showing a separate and distinct transaction and not admissible under any of the exceptions permitting such proof. The evidence should have been excluded (Burton v. State, 93 Tex. Cr. R. 335, 247 S. W. 869), but under the facts before us we do not believe a reversal of the judgment is demanded because of the erroneous admission of such testimony. Mansfield testified that about 8 o’clock on a certain night he purchased intoxicating liquor from appellant. This was not dénied by appellant or any other witness. Only one defense witness was offered, a son of appellant, who testified that he came to appellant’s house at 9:30 on the night of the alleged sale and that after he came he saw nothing of prosecuting witness about the place. This testimony in no way challenged the statement of Mansfield that he had bought the liquor an hour and a half before appellant’s son ’claimed to have been on the premises. If more than the minimum punishment had been inflicted, or if the evidence improperly admitted impinged upon any defense offered by appellant we would have no alternative but to reverse, but such condition does not arise under the facts before us. Only the minimum, punishment was inflicted. The testimony erroneously admitted does not call for a reversal.

Having already considered appellant’s bills, his application for writ of certiorari is denied, and his motion for rehearing overruled.

On Application for Leave to File Second Motion for Rehearing.

LATTIMORE, J.

Leave to file second motion for rehearing will be denied without discussion, save that we observe from the record in the light of appellant’s application that, if the witness Walker was in fact offered by the appellant, which would be only an inference and. is not in accord with the stenographer’s statement of the matter, still his testimony falls in the same category as that of appellant’s son, discussed in our refusal of the original motion for rehearing, and does not contradict or render improbable the testimony of the state witness Mansfield, wherein he testifies to the purchase of the liquor in question.

Application denied. 
      <g^oEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     