
    HAHN v. STATE.
    (No. 9214.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.
    Rehearing Denied Oct. 28, 1925.)
    1. Crimina! law &wkey;>627(4) — Accused entitled to copy of indictment, but not to two full days before tria!.
    An accused under bond is entitled to a copy of indictment on request, but is not entitled to two full days after receiving it before being forced to trial.
    2. Crimina! law i&wkey;>i 111 (3)-^BiII of exceptions, qualified by judge as not true in part, and that there was no evidence as to remainder, presents no error.
    Where bill of exception, showing that defendant sought to quash jury because court had instructed that certain persons be summoned as jurors and because panel was not full, was qualified by judge as not true as to first statement, and that there was no evidence as to second statement, no error was shown.
    3. Intoxicating liquors &wkey;>209, 216, 222 — Indictment for manufacture need not negative exceptions in statute, name kind of liquor, nor method of manufacture.
    An indictment charging manufacture of liquor need not negative exceptions contained in statute, nor name kind of liquor or method of manufacture.
    4.Criminal law <@=o459 — Objection that officers were not qualified to testify that barrel contained mash went to weight, not admissibility of testimony.
    In a prosecution for manufacture of intoxicating liquors, where officers testified they had seen mash before, objection that officers were not qualified to testify that a barrel contained mash went to weight, not admissibility of testimony.
    5. Criminal law <&wkey;l 120(3) — Court cannot determine whether exclusion of testimony was harmful, where bill of exceptions fails to show what answer stricken! would have been.
    " Where bill of exceptions fails to show what answer, to which court sustained an objection, would have been, court cannot determine whether exclusion of testimony was harmful to defendant.
    6. Criminal law &wkey;>829(!8) — Refusal of requested instruction! not error, where contained in main charge.
    
      In a prosecution for manufacturing intoxicating liquor, refusal of requested instruction that, if there was a reasonable doubt as to who placed whisky on premises if found there, to acquit defendant, was not error, where such matter was presented in court’s main charge.
    On Motion for Rehearing.
    7.Criminal law <&wkey;627(4) — Refusal to postpone case for two days held not error.
    Where defendant was indicted on June 13th, arrested and gave bond on same day, and was .called to trial on July 1st, it was not error for judge, after directing that a copy of indictment be delivered to defendant, to refuse to postpone case-for two days.
    Commissioners’ Decision.
    Appeal from District Court, Denton County; C. R. Pearman, Judge.
    K. H. Hahn was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    Robt. H. Hopkins, of Denton, and' John R. Francis, of Fort Worth, for appellant.
    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 Denton county for the offense of manufacturing liquor, and his punishment assessed at confinement in the penitentiary for a term of two years.

The appellant made a motion on the day of the trial to be served with, a copy of the indictment in the, case, and complained that he was not thereafter given two full days before being forced to trial. The bill shows that appellant was out on bond from the time "the indictment was returned, and that his request to be served with a certified copy was immediately complied with by the clerk. Where the appellant is under bond, he is entitled to a copy of the indictment if he makes request for the same, but he is not entitled to have granted him two full days after, receiving same before he can be forced to trial. Article 553, Vernon’s C. C. P.; Johnson v. State, 4 Tex. App. 268; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408.

Appellant sought to quash the jury panel under an allegation that the court had instructed the jury commissioners not to summon as jurors certain persons, and, second, because the panel was not full, and that it had been the custom in that county for the last several terms of the court to allow jurors drawn by the jury commissioners to fail to attend court. The court qualifies this bill by stating that the first paragraph is not true, and by saying that there was no evidence introduced before the court to show that any of the facts alleged in paragraph 2 of this motion are true. Under these circumstances no error is shown.

Appellant moved to quash the indictment because it did not contain any of the exceptions named in . the statute, and did not allege the kind of intoxicating liquor manufactured, and also because it did not allege how the same was manufactured, or whether by fermentation or distillation. It is not necessary to negative the exceptions contained in the statute, and has been so held many times by this court. Neither is it necessary to name the kind of intoxicating liquor, nor to allege how the same was manufactured. We have been cited to no authority, and know of none, placing any such burden on the state. Travinio v. State, 92 Tex. Cr. R. 140, 242 S. W. 242.

By various bills of exception, appellant complains that the court permitted certain peace officers, who appeared as witnesses for the state to testify as to a barrel found on the premises of the defendant containing mash; his objection being to the effect that they were not qualified to give an opinion as .to the contents of this barrel. The court qualifies this bill by saying that the witnesses testified that they had seen mash prior to that time, and that in their judgment it was mash. Appellant’s objections go more to the weight than to the admissibility of the testimony.

Appellant complains that, after the sheriff of Denton county testified that he was told that a jug of whisky was buried on the premises of defendant, thereupon defendant asked the witness to state the name of the party who gave him the information, and that this question was objected to upon the ground that the sheriff did not have to disclose information which led to the arrest of bootleggers, and the court sustained the objection. The bill of exception fails to disclose what the sheriff’s answer would have been if he had been permitted to testify, and, in the absence of this information, this court is without power to determine whether the exclusion of the testimony was harmful to the appellant.

What we have said with reference to appellant’s motion to quash the indictment disposes of his contention, as raised by bill of exception No. 6.

The court gave a correct charge on circumstantial evidence, and appellant’s complaint with reference thereto is without merit.

By bill of exception No. 8, appellant complains at the court’s failure to charge tbe jury that, if they believed beyond a reasonable doubt that whisky was found on the premises of the defendant, but had a reasonable doubt as to who placed the same on the premises, to acquit the appellant. This matter was presented in paragraph 3 of the court’s main charge to the jury.

The court’s qualification to bill Nov 9 is entirely sufficient to show that no error was committed in the argument complained of.

Having carefully examined the entirfe record, it is our opinion that the appellant has had a fair trial in the case, and that the judgment of the lower court 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.

On Motion for Rehearing.

LATTIMORE, J.

Appellant was indicted on the 13th of June, and from the record we infer that he was arrested and gave bond the same day. His case was called for trial on July 1st following. He had been out on bond for more than two weeks. In this condition of the record we do not think the learned trial judge erred, after having directed that a copy of the indictment be delivered to appellant or his attorney, in refusing to postpone the case two days in which to give appellant time to prepare for trial.

The 'record so completely refutes appellant’s contention in regard to his motion to quash the jury panel that we think the matter sufficiently treated in our original opinion.

Whisky was found on appellant’s premises, and also paraphernalia useful in its manufacture, also a quantity of mash. Various witnesses who examined the mash said it was made of prunes, apricots, meal, corn chops, and water. An analysis of same by a chemist showed the presence in it of a considerable percentage of alcohol. We do not deem it a reversible error to permit witnesses who had seen other mash to testify that this was mash.

Appellant complains of our disposition of his bill of exceptions No. 6. It is revealed thereby that he placed the sheriff of the county on the witness stand and asked him if it was not a fact that some one told him that a jug of whisky was buried at the place, or near same, where the deputy sheriffs had testified that they found on appellant’s premises a jug of whisky, to which the sheriff answered, “Yes,” that he was told that a jug of whisky was buried on appellant’s premises where this jug. of whisky was found. The bill further discloses that appellant also asked the witness to state the name of the party who gave him this information, which question, on objection of the state, was not answered. In the absence of some showing of a reason why an answer to the question would have been of benefit to the appellant, we felt justified in upholding the learned trial judge’s disposition of this matter, upon the ground that the bill failed to disclose what the answer of the witness would have been. We are not led to conclude our former opinion in error in this matter.

Believing the ease correctly decided, the motion for rehearing will be overruled. 
      <g=»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     