
    KELLY v. STATE.
    (No. 9237.)
    (Court of Criminal' Appeals of Texas.
    Dec. 16, 1925.)
    1. Criminal law <&wkey;633(I) — Permitting sheriff to bring jars containing whisky into courtroom during voir dire examination of jury held not error.
    Permitting sheriff to bring jars containing whisky into courtroom while jury were being questioned on voir dire held, not error, in absence of showing that whisky was not same for transportation of which defendant was being tried.
    2. Criminal law <§=>1091 (II) — Bill of exceptions in question and answer form not considered.
    Bill of exceptions in question and answer form will not be considered.
    3. Criminal law <&wkey;338(4, 5) — Testimony as to witness’ presence when jars filled with liquid were taken from bed of Greek held admissible.
    Testimony, in trial for transporting liquor, that witness was present when jars filled with some liquid were taken from bed of creek and brought to city, held admissible to show that defendant, who was shown to have carried package into creek at place where whisky was afterwards found, was party who placed it .there.
    4. Criminal law <&wkey;l 120(1) — Bill of exceptions, not showing who elicited testimony objected to, not considered.
    Bill of exceptions, not showing who elicited testimony objected to, need not be considered.
    5. intoxicating liquors <&wkey;233(l) — Testimony as to mud on defendant’s shoe shortly after he entered creek with package at point where whisky was found held admissible.
    In trial for transporting liquor, testimony that there was mud on defendant’s shoe when witness saw him shortly after he was shown to have entered creek with package at point where whisky was afterward found held admissible.
    6. Crimina! law <&wkey;35l (10)— Admission of testimony that defendant broke jar of whisky while under arrest held not error.
    In trial for transporting liquor, admission of testimony that defendant broke jar of whis-ky in automobile while en route to jail after arrest held not error.
    7. intoxicating liquors <&wkey;233(2) — Evidence of finding jars of whisky in creek where defendant had been seen to go with package held admissible.
    In trial for transporting liquor, evidence of finding jars containing whisky in creek where defendant had been seen to go with package, held admissible.
    8. Criminal law @=3677 — Refusal to withdraw testimony because of contradictory testimony on cross-examination held not error.
    Refusal to withdraw witness’ testimony as to seeing defendant deposit package in creek where whisky was afterward found held not error, because witness admitted on cross-examination that he did not actually see defendant deposit package; objection going to weight rather than admissibility of testimony.
    9. Intoxicating liquors <&wkey;233(l) — Evidence as to mud on defendant’s feet when arrested shortly after having been seen to enter oreek where whisky was found held admissible.
    In trial for transporting liquor, evidence that there was mud on defendant’s feet when he was arrested shortly after having been seen to enter creek at place where whisky was afterward found held, admissible.
    10. Criminal law <&wkey;>404(4) — Whisky found in creek shortly after defendant was seen to enter creek with package and return with none held admissible.
    Whisky found in creek shortly after defendant was seen to enter creek with package and return with none held admissible in trial for transporting liquor, as against objections that testimony as to finding it concerned matter occurring in defendant’s absence and was hearsay; evidence sufficiently showing that it was same liquor deposited in creek by defendant.
    11. Intoxicating liquors <&wkey;236(20) — Conviction of transporting held sustained by evidence.
    Evidence held sufficient to sustain conviction of transporting liquor.
    Commissioners’ Decision.
    Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
    Jess Kelly was convicted of .transporting liquor, and he appeals.
    Affirmed.
    H. D. Wood, of Dallas, for appellant.
    Carl G. Miller, Co. Atty., of Rockwall, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Rockwall county for the offense of transporting liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

By bill of exceptions No.'l, complaint is made at the action of the court in permitting the sheriff of Rockwall county to bring two half gallon fruit jars containing whisky into the courtroom while the jury were being questioned on their voir dire. There is nothing in the bill to show that this whisky was not the same for which he was being tried for transporting. In this condition of the record, error is not shown.'

Bill of exceptions No. 2 is in question and answer form, and for that reason will not be considered. Robbins v. State, 100 Tex. Cr. R. 592, 272 S. W. 175; Romez v. State, 93 Tex. Cr. R. 92, 245 S. W. 914; Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589; Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744; Huey v. State, 90 Tex. Cr. R. 400, 235 S. W. 887; Montez v. State (Tex. Cr. App.) 276 S. W. 709.

Bill of exceptions No. 3 states that, while the witness Macklin was testifying for the state, the following proceedings were had: The witness testified that he was present when one Mr. McCarty took from the bed of a certain creek three one-half gallon fruit jars filled with some liquid, and brought them to Royse'City, Tex. The defendant objected to this evidence because same was immaterial, irrelevant, and highly inflammatory, and because defendant was not present and had never been shown to be connected with said jars of liquid in any manner.

The facts in this case show that appellant got out of a jitney with á package in his arms near this creek where this whisky was afterwards found; that he went down into the creek carrying the package, but when he came up out of the creek he had no package; that a search was made of the creek at this very place where this appellant went down into it, and in a pool of water in the creek the whisky was found, there being tracks on the bank near the place where the whisky was found. This testimony objected to was clearly admissible as a circumstance showing that the appellant was the party who placed the whisky in the creek. Besides, this hill of exceptions wholly fails to show who elicited this testimony from this witness. Speights v. State, 1 Tex. App. 551.

Bill of exceptions No. 4 fails to show who elicited the testimony complained of therein. This bill complains because the witness Macklin was asked if, when he found the defendant, did he notice his shoes and feet, and he answered that he did notice them, and that there was a little mud on the heel of his shoe. The record discloses that this witness saw the defendant in a very short time after the other witness had testified that the appellant went down into this creek with a package and came up out of it without a package. The testimony was clearly admissible as a circumstance against the appellant.

Complaint is also made at the court’s action in permitting the state to prove that, after the three one-half gallon jars of whisky had been found in the bed of the creek and taken out, and after the defendant had been arrested and was being taken to jail, while en route to the jail in an automobile, and while the car was standing at Royse City, Tex., the appellant reached over from the back seat of the car in which he was sitting and used a pair of pliers and hit and broke one of the fruit jars containing the whisky. The objection to this testimony is that it is immaterial and irrelevant and hearsay. The court instructed the jury not to consider that part of the testimony as to what some other party told the witness the appellant did. There is no reversible error shown in this matter. It was proved by the witness McCarty that the appellant did break and destroy .one jar of the whisky. Appellant objected to this testimony as coming from tlié witness McCarty, on the ground that the appellant was under arrest at the time he broke and destroyed said jars of whisky. This objection was not tenable. It would be a remarkable situation if an accused should he permitted to destroy the evidence against him, and then deny the state the right to prove such destruction by simply showing that appellant was under arrest at the time it was done. No such protection is given an accused under the law of this state, and no error is shown concerning this matter. McFarland v. State, 45 Tex. Cr. R. 248, 75 S. W. 788; Andrews v. State (Tex. Cr. App.) 83 S. W. 188; Russell v. State, 38 Tex. Cr. R. 590, 44 S. W. 159.

It was permissible for the state to prove the finding of ^ the fruit jars in the water in the creek where appellant was seen to go with the package, and appellant’s objection to such testimony is entirely without merit. Neither is there any merit in his contention that the testimony of the witness Price should have been excluded. This bill of exceptions shows that the witness Price testified on direct examination that the appellant put the package in the creek, and on cross-examination he testified, “When he went over the bank of the creek he was a little out of sight” ; and being asked by counsel for the defense, “You did not actually see him deposit the package in the creek,” he answered, “No; I will have to admit that.”

It is appellant’s contention that that part of his statement in which he swore positively to seeing the package deposited in the creek should have been excluded because he contradicted himself on cross-examination. This is a matter that would go to the weight of the witness’ testimony rather than to its admissibility, and the trial court was not in error in refusing to withdraw any part of his testimony from the jury.

Bill of exceptions No. 9 is in question and answer form, and will not be considered on the authority of the cases above cited.

It was permissible and pertinent for the state to prove that there was mud on the defendant’s feet at the time he was arrested. The arrest took place shortly after he was seen to go down into the creek at the place where the whisky was found, and the condition of his shoes was a circumstance pertinently corroborating the witness Price, who testified to seeing him go into the creek.

On the trial of the case, while the sheriff was on the witness stand, the whisky found in the creek was introduced in evidence, and the appellant contends that this testimony was irrelevant and immaterial because it was a matter or thing that took place between others in the absence of the defendant, and was hearsay and highly prejudicial. The state was well within its right in introducing in evidence the liquor found, in view of the fact that the testimony was clearly sufficient to show by cogent circumstances that it was the same liquor deposited by this appellant in the creek at the time he was charged with transporting it.

The record discloses a case of circumstantial evidence that seems to us to be well nigh perfect, and, there being no errors committed in the trial of the case, it is our opinion that the judgment should be in all things 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. 
      cg^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     