
    COX v. STATE.
    (No. 10310.)
    Court of Criminal Appeals of Texas.
    Dec. 8, 1926.
    Rehearing Denied April 27, 1927.
    On Application for Leave to File Second Motion for Rehearing May 18, 1927.
    1. Intoxicating liquors <@=>203 — Indictment for transporting intoxicating liquor was not insufficient because omitting word “knowingly” (Vernon’s Ann. Pen. Code, art. 666).
    Indictment for' transporting intoxicating liquor, which was returned before the enactment of Penal Code 1925, held not insufficient because failing to allege that defendant knowingly transported! liquor, word “knowingly” not existing in the original statute (Acts 1919 [2d Called Sess.] c. 78, §§ 1, 2), but being inserted only by Penal Code 1925 (Vernon’s Ann. Pen. Code, art. 666).
    2. Criminal law <@=>1137(1) — Complaint that statement of facts was incorrect ineffective where counsel agreed thereto.
    Where appellant’s, counsel agreed to and signed statement of facts as a complete and impartial statement of the facts proved upon the trial, appellant might not complain that the statement of facts was incorrect. .
    On Motion for Rehearing.
    3. Witnesses <@=>248(2) — Answer that mash would make a hog drunk held not error as not responsive to question regarding character of mash.
    In prosecution for transporting intoxicating liquor, where defendant cross-examined witness regarding character of mash, and witness stated he could not say it was for the purpose of making whisky, further .statement that he knew it would make a hog drunk held not error as not responsive.
    4. Criminal law <@=jI092(II) — Where excepted to, qualification of bill of exceptions cannot be considered.
    Appellate court cannot • consider trial court’s qualification of bill of exceptions, where the -qualification is excepted to.
    5. Criminal law <©=>f i34(6) — In determining whether limiting cross-examination was error, situation much be viewed as it appeared to trial court.
    When the appellate court reviews refusal to permit further cross-examination, situation must be viewed as it appeared to the trial court.
    6. Witnesses <@=>282/2 — Refusing to permit further cross-examination held not error, where witness had five times stated he did not know what defendant claimed he would have testified was true.
    In prosecution for transporting intoxicating liquor, where witness five times stated he did not know whether officers furnished whisky to individual sent to detect offense, to be carried to defendant’s house, refusing to permit further cross-examination held not error.
    7. Criminal law <@=>1088(19) — Matters not properly in record cannot be considered.
    Appellate court cannot consider matters, of which complaint is made, which are not properly in the record presented to it.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County ; R. T. Brown, Judge.
    Frank Cox was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Dallas Ivey, of Center, for appellant.
    8am D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted in the district court of Shelby county for unlawfully transporting intoxicating liquor, and his punishment assessed at 2 years in the penitentiary.

This is the second appeal of this case; appellant was indicted on the 25th day of February, 1924, the indictment charging the unlawful transportation of intoxicating liquor on or about November 15, 1923. The trial in the instant case was on the 22d day of February, 1926. For statement of facts, reference is here made to the opinion in this case on the former appeal, in 103 Tex. Cr. R. 67, 279 S. W. 838.

Appellant complains in his bill of exceptions No. 1 of the action of the trial court in overruling his motion to quash the indictment in this case for the reason that said indictment failed to allege that the appellant “knowingly” transported the liquor. From a careful reading of the statute as originally passed, it will be observed that the word “knowingly” was conspicuous by its absence, and since the appellant was indicted the P. C. of 1925 has been enacted with the word “knowingly” inserted.

The P. C. of 1925 reads as follows:

“It shall be unlawful for any person, directly or indirectly to * * * transport * * * spirituous, vinous or malt liquors * * * or knowingly sell, barter, exchange, * * * any equipment, still, mash,” etc.

■ It therefore follows, the appellant not being charged with transporting any equipment, still, mash, etc., and only charged with transporting intoxicating liquor, that it is not necessary to allege in the indictment that he knowingly .transported said intoxicating liquor. Acts 1919, 2 C. S. 78, §§ 1 and 2; Vernon’s Ann. P. C. art. 666. For the reasons above stated, we hold that the learned trial judge properly overruled appellant’s motion to quash.

We fail to agree with appellant’s contention as set out in bills of exceptions Nos. 2 and 3, for the reason that the matters complained of were the result of appellant’s cross-examination of theo witness.

Appellant complains at the action of the' court in his bill of exceptions No. 4 in not allowing him to cross-examine the witness Dr. Sam Yeary. We have examined the bill of exceptions carefully as well as the evidence of the witness Dr. Yeary, and hold that the same presents no error.

The errors complained of in bills of exceptions Nos. 5, 6, 8, 9, 10, 13, 15, and 16 were passed on by this court adversely to the appellant in the former opinion by Judge Baker. See 103 Tex. Cr. R. 67, 279 S. W. 838.

Appellant’s bill of exceptions No. 11 complains of the argument of the county attorney who was assisting with the prosecution. In the light of all the testimony in this case, we do not agree with the contention of the appellant.

Bill of exceptions No. 19, in which complaint is made that the statement of facts, on pages 5 and 6, giving the testimony of the witness Dr. Yeary is incorrect, presents no error for the reason that the statement of facts was agreed to and signed by counsel for the appellant as a complete and impartial statement of the facts proved upon the trial of said cause.

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

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judge of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant seems to be under the impression that we disposed of his bill of exception No. 3 upon the qualification appended thereto by the court when the qualification was excepted to. The qualification was not considered. From the bill itself it is apparent that appellant was cross-examining the witness Yeary regarding the character of the mash found back of appellant’s house, and, after testifying that he knew it was fermented corn chops, the witness stated he could not say it was for the purpose of making whisky, but did know “it would make a hog drunk.” It is to the quoted statement objection was urged. We are not in accord with appellant’s , contention that this was a voluntary and improper statement from the witness not in response to the cross-examination. The statement of facts reveals that, in connection with the statement complained of, the witness testified that a hog was there and that witness saw it eat some of the mash and that it became drunk as a result.

Appellant insists we were in error in the disposition made of bill of exception 4, wherein he complained that he was unduly curtailed in his cross-examination of the witness Yeary. The bill is qualified by the court but the qualification was excepted to; hence, cannot be considered. It was an admitted fact that officers had sent one Oawthorne to appellant’s house for the purpose of detecting him in the violation of the liquor laws. It was appellant’s contention that the whisky he was charged with having transported had been brought to the place by Oawthorne himself. Yeary was the constable. The bill shows that he went with other officers to appellant’s place, but did not know until after he reached there that Oawthorne had been sent on in advance by other officers. The bill shows that on the cross-examination of Yeary he was questioned as to whether Oaw-thorne had carried the whisky to appellant’s place, to which witness replied that he could not answer the question, explaining that he knew nothing in advance about Oawthorne having been sent there. He.was then asked by appellant if some of the officers there that night did not tell him they furnished the whis-ky for Oawthorne to bring there, to which the witness 'replied that he could not answer the question because he did not know. The bill then recites that the trial-court declined to permit further cross-examination of the witness, and states that if appellant had been permitted to further cross-examine the witness he would have testified that one of the officers furnished the whisky which Oaw-thorne brought there. In determining whether the court committed error in refusing to permit further cross-examination, the matter must be viewed as the situation appeared to the court at the time he was called upon to rule.

We take from the statement of facts, on cross-examination of this witness, the following excerpts:

“I can’t answer your question as to whether or not Nath Oawthorne had been sent down there with some whisky, because I don’t know. I don’t know where that whisky come from that night. No one ever told me that they, furnished the whisky for Nath Oawthorne to carry down there that night.
“I have told you three times I could not answer your question as to whether or not Nath Oawthorne was furnished that whisky, or that he carried it down there with him, because I don’t know. I do not know anything about that whisky being carried down there. No one told me that Nath carried it down there with him. That has been over two years ago; and if there was ever any such remark made, why it has slipped my memory.
“I have told you five times now that I could not answer your question as to who furnished Nath Oawthorne that whisky, if he was furnished any to carry down there, because I dón’t know.”

It is impossible to appraise a bill of ex- ■ ception complaining of the exclusion or admission of evidence or the claimed curtailment in the examination of a witness without reference to the facts before the court when he is called upon to make a ruling. Here the appellant was, in effect, saying to the court:

“If you will let me cross-examine this witness. further, an answer is expected from him in direct contradiction to what the witness had already answered the other way five times.”

This the court knew. It does not appear from the record that appellant had any ground upon which to base an expectation of any answer from the witness different from that already given.

Appellant asks a reconsideration of the matters complained of in bills 5, 6, 8, 9, 10, 13,15, and 16, urging that the matters therein complained of are presented in a different light,upon this appeal than upon the former. It may be appellant has more evidence in this record to combat the effect of the evidence complained of in the various bills, but we conceive the legal questions to be the same and to have been ¡properly disposed of on the former appeal.

There are some matters adverted to in appellant’s motion which are not properly in the record, and' for that reason cannot be considered.

The motion for rehearing is overruled.

On Application for Leave to File Second Motion for Rehearing.

LATTIMORE, J.

Appellant seeks leave to file a second motion for rehearing, claiming that we failed to consider a certain bill of exceptions referred to in his application. We considered and passed upon another bill of exceptions presenting exactly the same point.

The application for leave to file second motion for rehearing will be denied.

MORROW, P. J., absent. 
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