
    OVERLEY v. STATE.
    (No. 9654.)
    
    (Court of Criminal Appeals of Texas.
    December 9, 1925.
    Rehearing Denied May 26, 1926.)
    1. Intoxicating liquors <&wkey;226 — In prosecution for possession of liquor, testimony that witness purchased liquor from defendant's daughter held not improperly admitted.
    In prosecution for possessing intoxicating liquor for sale, testimony that witness on night preceding morning of search of defendant’s premises had bought a pint of whisky from defendant’s daughter held not improperly admitted, in view of daughter’s testimony that witness himself had brought whisky there, leaving several jars of it in bathroom.
    2. Criminal law >&wkey;369(6) — In prosecution for possessing liquor for sale, evidence of sale some 40 days before search of premises held properly admitted.
    In prosecution for possessing liquor for sale, testimony that witness had purchased liquor from defendant some 40 days before officer’s search of defendant’s premises held properly admitted, as against objection that transaction was too remote and involved a distinct offense.
    3. Intoxicating liquors &wkey;>236(7).
    Evidence held to support conviction for possession of liquor for purpose of sale.
    On Motion for Rehearing.
    4. Criminal-law &wkey;>((28(4) — Defendant cannot by affidavit bring original evidence before appellate court.
    Defendant cannot 'by affidavit bring original evidence before Court of Criminal Appeals, which must pass on case on record made in court below.
    Appeal from District Court, Grayson County; E. E. Wilcox, Judge.
    Nellie Overley was convicted of possessing intoxicating liquor for purpose of sale, and she appeals.
    Affirmed.
    
      J. A. Carlisle, B. F. Gafford, and J. P. Cox, all of Sherman, for appellant. •
    Sam D. Stinson, State’s Atty., 'of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for the possession of intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.

Appellant complains at the admission of the testimony of Cliff Jenkins that on tire night before the officers found whisky in appellant’s house Jenkins had bought a pint of whisky from Juanita Overley ( (appellant’s daughter), it being urged that appellant was not. present at the time and knew nothing about such transaction, if it occurred, and that it was not binding upon her nor was she chargeable therewith.

Officers armed with a search warrant went to appellant’s home on the morning of the Sd of February, one of them going to the kitchen door. He told appellant he had a search warrant for the place, and she undertook to close the door, but he succeeded in entering. Appellant went from the kitchen into the dining room and was followed by the officer, who told her to let the other officer in at the front door, which she declined to do. About this time the daughter (Juanita Overley), still dressed in her nightclothes, ran into the bathroom, where the sound of breaking bottles was heard. When the officer undertbok to follow the daughter into the bathroom appellant caught him and jerked him back. • By the time he got to the bathroom door it was fastened. He then called for the other officer. When the bathroom door was broken open they found five quart fruit jars broken, whisky all over the bathroom floor, but a small quantity remaining in the tops and bottoms of the broken jars. The jars had been in a carton, which was also wet with whisky. In breaking the bottles the girl had cut her hand and was holding it at the time the officers entered. Miss Overley testified that neither she nor her mother owned the whisky which was in the bathroom and which she had broken, but said she‘knew-it was there and broke it because -she feared if the officers found that quantity of whisky it would be used as evidence against her mother. Witness testified that on the night before this whisky had been brought to the house by Cliff Jenkins, who had carried it to the bathroom and left it there with her permission; that her mother was not present at the time he" brought it. Under this condition of the record the court committed no error in permitting Jenkins to testify that he did not take the whisky in question to the home of appellant on the night before, but that he was at the house that night and purchased from Juanita Over-ley a pint of whisky.

Complaint is also made that Jenkins was permitted to testify that he bought some whisky from appellant on the 23d of December, 1924, some 40 days before the search made by the officers. It is appellant’s contention that it involved a transaction too remote and involved another and distinct offense than that for which appellant was on trial. It has been held many times by this court that in a prosecution for the possession of intoxicating liqnor for the purpose of sale proof of sales made by accused at a time not too remote would be admissible as throwing light upon the purpose for which the whisky in question was possessed.. We think under the facts of this ease the objection goes to the weight rqther than to the admissibility of the testimony complained of. The evidence was properly limited in the charge.

We are not in accord with appellant’s contention that the evidence is insufficient to support the verdict.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORES, J.

In a supplemental motion for rehearing appellant attempts to bring before this court by affidavits original evidence relating to this case. Such practice is not allowable. Ours is not a court of original jurisdiction. We pass upon the ease on the record made in the court below.

Appellant introduced as a witness in her behalf her daughter. Other testimony showed that when the officers went to the premises this daughter ran into the bathroom and proceeded to attempt to destroy a number of containers containing intoxicating liquor. The same daughter was a witness in behalf of appellant, and testified that the liquor and containers mentioned were brought to the house by one Jenkins the night preceding the visit of the officers. We said in our former opinion:

“Under this condition of the record the court committed no error in permitting Jenkins to testify that he did not take the whisky in question to the home of appellant on the night before, but that he was at the house that night and purchased from Juanita Overley a pint of whisky.”

Juanita Overley was the daughter above referred to, and seems to have been acting •with her mother, appellant herein, and we have no doubt as to the correctness of the action of the trial court in permitting Jenkins -to testify to his purchase of a pint of whisky from the daughter the night preceding the raid.

The burden being upon the state to prove not only the possession of the liquor in question, but that it was possessed for purpose of sale by - appellant, it was competent to prove other sales by her within a reasonable time prior to the particular possession relied on in this case. The cases of Johnson v. State; 98 Tex. Cr. R. 417, 266 S. W. 166, and Gothard v. State, 99 Tex. Cr. R. 452, 270 S. W. 177, are on facts showing transactions much more remote than appears here.

Believing the case properly disposed of in pur original opinion, the motion for rehearing will be overruled. 
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