
    CREED v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.
    Rehearing Denied April 2, 1913.)
    1. Criminal Daw (§ 1092) — Appeal—Bill of Exceptions.
    Under Code Cr. Proc. 1911, art. 634, providing that an order granting or refusing a change of venue shall not be reviewable unless the facts upon which it was based are preserved in a bill of exceptions approved and filed at the term when the order was made, a bill of exceptions to the refusal of a change of venue filed after, the term at which it was denied presents no question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, '2919; Dec. Dig. § 1092.]
    2. Courts (§ 66) — Adjournment—Special Judges.
    Rev. Civ. St. 1911, art. 1678, provides for the election of a special judge whenever the regular judge shall be absent, while article 16S4 provides for similar elections from time to time during the term to supply the absence ■of the judge or of any special judge, and article '1725 provides that 'should the judge in any •district court not appear at the time appointed, and, should no election of a special judge be held, the sheriff shall adjourn the court from day to day for three days, and if the judge shall not appear on the morning of the fourth, and if no special judge shall have been •elected, the sheriff shall adjourn court until the next regular term. Held that, where a special judge was duly elected, his absence for more than three days did not adjourn the term where he directed the sheriff to open court and adjourn each day until the next day.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 231-242; Dec. Dig. § 66.]
    3. Criminal Law (§ 1090) — Bills or Exceptions — Necessity.
    In the absence of bills of exceptions, accused is not entitled to review of the action •of the court in denying his application for a •continuance and in admitting testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2S03-2S22, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    4. Indictment and Information (§ 119)— Surplusage.
    Where an indictment filed July 16, 1912, in a prosecution for following the business of selling intoxicating liquor in prohibition territory, averred that while _ the prohibitory law was in force during the time between November 16, 1911, and the filing of the indictment and before presentment thereof, accused did •unlawfully engage in and pursue the occupation •of selling intoxicating liquors, and charged specific sales on dates mentioned before filing the indictment, an allegation in the latter part of the indictment charging the offense to have been committed after November 16, 1912, will be disregarded as surplusage; the date being obviously a mistake and the allegation being wholly unnecessary.
    [Ed. Note. — For other.cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    5. Criminal Law (§ 761) — Instructions— Assumption of Facts — Intoxicating Liquors.
    ■ In a prosecution for following the business of selling intoxicating liquors in prohibition territory, where the orders of the commissioner’s court had been introduced in evidence showing local option' to be in force in the county in which the venue was laid, the court may assume that fact in its charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.]
    6. Intoxicating Liquors (§ 169) — Offenses — Persons Liable — Agents — ‘ ‘Principal.”
    In a prosecution for following the occupation of selling intoxicating liquors .in prohibition territory, it is no defense that accused was employed by a third person to sell the liquors for his benefit; all persons being principals in the commission of an offense who are present at the commission thereof knowing the unlawful intent and aid therein.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 187, 188; Dec. Dig. 1 169.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 5552-5557; vol. 8, p. 7763.]
    7. Intoxicating Liquors (§ 233) — Prosecution — Evidence—Admissibility.
    In a prosecution for following the business of selling intoxicating liquors in prohibition territory, evidence that large quantities of intoxicating liquors were hauled to the barn of accused’s employer, and that accused was present and assisted in placing them therein, and that the liquors were carried from the barn to the bar of the hotel which accused managed for his employer, and that he sold them indiscriminately, is proper to be considered by the jury.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298%; Dec. Dig. § 233.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Pete Creed was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Cooper, Merrill & Lumpkin, of Amarillo, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series'& Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years’ confinement in the state penitentiary.

The term of court, at which appellant was convicted adjourned on September 28, 1912. In this term appellant filed an application praying for a change of venue on grounds named in the application which was overruled by the court. After the adjournment of court on November 4, 1912, appellant filed two bills of exception, complaining of the action of the court in overruling his application for a change of venue. Article 634 of the Code of Criminal Procedure provides that an order of the court granting or refusing a change of venue shall not be reviewed on appeal, unless the .facts upon which the same was based are presented in a bill of exception prepared, signed, approved, and filed at the term of court at which such order was made. The bill not having been filed during the term at which the order was made, we are not permitted to review the action in refusing the change of venue.

In the only other bill of exception in the record it is shown that the term of court began on the 8th day of July, 1912; that being the time fixed by law. On this day the regularly elected judge, Hon. J. N. Browning, being absent, the attorneys in attendance on court legally elected Hon. Jno. W. Yeale special judge, who took the oath of office, opened court, impaneled the grand jury, and transacted such other business as came before the court on that day. It further shows that on the second day of the term the special judge, being called to another county, notified all parties that he would necessarily be absent for several days, and instructed the sheriffi to open court each day, and adjourn until next morning. This to be done until he should return. He did not return until the following Monday, when he proceeded with the business of the court and continued to hold court until Hon. J. N. Browning, the regular judge, appeared and resumed his seat on the bench. Appellant insists that because the Hon. Jno. W. Veale left the county, after opening court, for more than three 'days, and instructed the sheriff to open court and adjourn until the next day, that on the third day of the special judge’s' absence the court became as a matter of law adjourned for the term, and cites us to articles 1678, 1684, and 1725 of the Revised Civil Statutes. These articles of the statute do not so provide, but, on the other hand, provide for the election of a special judge on the first day of the term, when the regular judge is absent, and the law was complied with in this respect. After the special judge had been elected, qualified, and opened court for the term, it remained open until the send of the term, unless sooner adjourned for the term by order of the judge presiding.

In the motion for a new trial complaint is made of the action of the court in overruling the application for a continuance, and to the admissibility of certain testimony, but, no bills of exceptions being reserved in regard to these matters, we cannot review them; so the sole questions presented are those that complain of the charge of the court and the refusal of the court to give the instructions requested, and the one to’ quash the indictment^

The indictment in this ease is very lengthy, and no useful purpose could be served by presenting' it in' full. The indictment is in form frequently approved by this court with one exception, and the ground presenting this reads as follows: “Because the offense charged herein is alleged to have occurred at an impossible date, to.-wit, from and after Nov. 16, 1912.” As the indictment was presented on July 16, 1912, if this is the proper construction to be given the instrument, the motion would be good; but the indictment, after alleging when the election was held, and when it became effective, further alleges: “And thereafter, while said local option law prohibiting the sale of intoxicating liquors ■ (in the county named) within the period of time between November 16, 1911, and the filing of this indictment, and anterior to the presentment of this indictment, Pete Creed did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, and during said time did then aud there unlawfully make at least two sales of intoxicating liquors, to wit,” then names a number of persons to whom the sales- were made, naming the date of each sale, all dates alleged being prior' to the filing of the indictment herein. But in the concluding part of the indictment the year “1912” is written in one place, wherein “1911” should have been written; but, if we exclude the words “the 16’ day of Nov. 1912, when,” where it occurs in the latter part of the indictment, the indictment would charge an offense; therefore these words should be treated as sur-plusage. If these words rendered the indictment in anywise uncertain, then a different rule would prevail, but the part herein copied shows that appellant was charged with pursuing the occupation from November 16, 1911, up to and inclusive of the date of filing the indictment, and the date of each sale is alleged anterior to the presentment of :the indictment, and, this being .so, when a useless expression is inserted, which may- and should be treated as surplusage, it presents no ground to quash the indictment, Mr. Branch in his Criminal Law correctly says the rule is: “If, eliminating surplusage, the indictment so avers the constituent elements of the offense as to apprise defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is "good in substance, under our Code, and therefore sufficiently charges the offense.” See section 905. The court defined occupation in words frequently affirmed by this court. Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Gillree v. State, 60 Tex. Cr. R. 301, 131 S. W. 1071; Clark v. State, 61 Tex. Cr. R. 597, 136 S. W. 260; Dickson v. State, 146 S. W. 918. Therefore there was no error in the court refusing the special charge requested; these decisions all holding that such a charge should not be given.

The court did not assume in his charge that local option was in force, but he would not have erred if he had done so; the orders of tlie commissioners’ court having been introduced in evidence. Byrd v. State, 53 Tex. Cr. R. 508, 111 S. W. 149; Romero v. State, 56 Tex. Cr. R. 437, 120 S. W. 859; Sebastian v. State, 44 Tex. Cr. R. 509, 72 S. W. 849; Shields v. State, 38 Tex. Cr. R. 252, 42 S. W. 398.

The court did not err in refusing defendant’s special charge that, although the jury might believe that D. R. Campbell was engaged in the occupation charged, yet if appellant was employed by him, and he knew that Campbell was so engaged, he could not be convicted, etc. The evidence conclusively shows that Campbell had the Union Hotel rented; that this was the place where all sales were made; that appellant was the manager and had control of these premises, and while he denies making sales himself, yet he admits that he knew that Campbell was selling intoxicating liquors, and he was present when the sales were, made by Campbell, and the other facts and circumstances in evidence would make him a principal in the commission of the offense if he never made a sale himself. But the evidence for the state shows that appellant made numerous sales from a drink at a time to any quantity of whisky a person desired. And neither was there any error in refusing the special charges requested, instructing the jury not to consider the testimony of J. W. Jones and Crafton. These witnesses showed that large quantities of intoxicants were hauled to Campbell’s barn; that on one occasion, at least, appellant was present and assisted in placing the liquors in the barn; that these liquors were carried from this barn to the Union Hotel, where they were sold, appellant at times receiving such liquors at the hotel and paying the men for bringing the liquor from the barn to the hotel, and then the testimony would show that he would sell such liquors to whomsoever might call for liquor. A regular bar is shown to have been run at this hotel, selling whisky and beer by the drink and otherwise, appellant often- waiting on the customers. Our statute provides that all persons are principals in the commission of an offense who are present at the commission thereof, knowing the unlawful intent, and aid in the commission thereof.

The evidence in this case under any and all phases of the law makes appellant guilty of the offense charged, and the other special charges requested in so far as they are the law were fully covered by the court in his main charge,, and the judgment is affirmed.  