
    SANDOLOSKI v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1911.
    On Motion for Rehearing, Jan. 24, 1912.)
    1. Criminal Law (§ 603) — Continuance— Application — Requisites.
    An application for a continuance on the ground of the absence of witnesses, which fails to state that the absence was not by the procurement and consent of accused, is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1358; Dec. Dig. § 603.]
    
      2. Criminal Law (§ 1144)— Continuance-Absence 'of Witnesses — Cumulative Tes- : TIMONY.
    Where a trial took place three years after the filing of the case, the court, on appeal, on ruling on a denial of a continuance on the ground of the absence of witnesses, whose testimony would be merely cumulative, would presume that it was a second application, and hence properly denied.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3022; Dec. Dig. § 1144.)
    3. Criminal Law (§ 369) — Evidence—Admissibility — Other Offenses.
    Where the person who had purchased liquor from accused in local option territory testified that accused told him that he was shipping similar liquor to other persons named, and that he could procure liquor from such persons, it was not error to permit the witness to testify that accused had shipped similar liquor to others in the town.
    [Ed. Note. — Por other cases, see Criminal Law, Dec. Dig. § 369.) .
    4. Criminal Law (§ 1169) — Rulings on Evidence — Objections.
    Where the issue was whether the liquor sold in local option territory was intoxicating, and the person who had purchased liquor from accused testified that he had been convicted for selling liquor of the same kind, and the court, on objection, excluded the question and answer, and directed the jury to wholly disregard the same, the admission of the evidence presented no error.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. .Dig. §§ 3137-3143; Dec. Dig. § 1169.]
    5. Intoxicating Liquors (§ 134) — 'Violation of Local Option Law — Sale of “Intoxicating Liquor.”
    Intoxicating liquor, as used in the local option law, is a liquor intended for use as a beverage, or capable of being so used, which contains alcohol, obtained by fermentation or by distillation, in such proportion that it will produce intoxication, when taken in such quantities as may practically be drunk.
    [Ed. Note. — Por other cases, see Intoxicating^Liciuors, Cent. Dig. §§ 142-144; Dec. Dig. 
    
    Por other definitions, see Words and Phrases, vol. 4, pp. 3736-3746; vol. 8, p. 7692.)
    6. Criminal Law (§ 814) — Instructions— Evidence.
    Where the evidence showed that accused sold casks of liquor already in local option territory, and delivered the same to the buyer, the question involving the taking of orders by accused and shipping liquor from other points was not involved as to such casks.
    [Ed. Note. — Por other cases, see Criminal Law, Dec. Dig. § 814.]
    7. Intoxicating Liquors (§ 132*) — Statutes —Repeal—Effect.
    Under Pen. Code 1895, arts. 15, 407, providing that the offender shall be tried under the law in force when the offense was committed, and punished under that law, unless the punishment has been ameliorated, and providing that the repeal of prohibition shall not exempt from punishment one who has offended against the law while in force, one charged with violating the local option law, prior to the statute making a sale of intoxicating liquor a felony, is properly tried and punished under the statute, making a sale of liquor a misdemeanor, in force at the time of the offense.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Dec. Dig. § 132.]
    8. Criminal Law (§ 1158) — Misconduct of Jury — New Trial — Evidence.
    Where the issue was whether jurors were guilty of misconduct in considering excluded evidence during their deliberations, and the juror charged with referring to such evidence positively testified that he made no such statement, and heard no one else making it, a finding of the trial court that there was no misconduct would not be disturbed on appeal.
    [Ed. Note. — Por other cases, see Criminal Law, Dec. Dig. § 1158.]
    Op Motion for Rehearing.
    9. Criminal Law (§ 1111) — Appeal—Record — Conclusiveness.
    The court, on appeal, must take the record as it is filed; and it cannot take cognizance of any mistakes in the statement of facts as agreed to.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2894r-2896; Dec. Dig. § 1111.]
    10. Indictment and Information (§ 122)— Variance Between Complaint and Information — Effect.
    The variance between a complaint, alleging that affiant has good reason to believe, and does believe, that accused is guilty of a crime charged, and the information filed by the district attorney, and reciting that it is “founded upon testimony taken in behalf of the state, under oath,” does not vitiate the information complying with Code Cr. Proc. 1895, art. 466, since the complaint is an affidavit in accordance with article 34, and since the quoted words may be treated as surplusage.
    [Ed. Note. — Por other cases, see Indictment and Information, Dec. Dig. § 122.]
    11. Criminal Law (§ 1099) — New Trial-Evidence — Review.
    Where a motion for new trial was not sworn to, and no affidavits were attached thereto, and the statement of facts on the questions was filed after term time, the question presented on the denial of the motion was not reviewable on appeal.
    [Ed. Note. — Por other cases, see Criminal Law, Dec. Dig. § 1099.]
    Appeal from District Court, Marion County; P. A. Turner, Judge.
    A. Sandoloski was convicted of violating the local option law, and he appeals.
    Affirmed.
    W. T. Armistead and R. R. Taylor, for appellant. C. E. 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
    
    
      
      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 for violating the local option law, adjudged guilty, and his punishment assessed at a fine or $25 and 20 days imprisonment in the county jail.

The facts show that appellant sold to John T. Deadweiler a drink called “Hiawatha.” It appears that appellant first sold two casks of Hiawatha to Louis Restella, representing that it was nonintoxicating. After investigation, Mr. Restella declined to handle same; he being of the opinion that it would produce intoxication. Appellant was the agent and representative of the Houston Ice & Brewing Company, whom he says manufacture both beer and this drink, called “Hiawatlia.” He admits that lie first sold several cases of Hiawatha to Restella, and delivered it to him in Marion county; that when Restella refused to handle and sell it he made arrangements with Dead-weiler to handle the drink and sell it, and instructed a drayman to go to Restella’s and get the casks and carry them to Deadweiler; that Deadweiler paid him $10 a cask for. those delivered to him; that, outside of this sale and delivery, it was his usual custom to take orders for Hiawatha, and have it shipped from Houston or Marshall to the purchaser. Appellant at this time was in the saloon business at Marshall, and when he would order a mixed car of beer and Hiawatha the Hiawatha would be unloaded at Jefferson, where prohibition was in force, and the beer carried on to Marshall, where he was engaged in the saloon business, saying that he had no need for Hiawatha at Marshall, as the people there would not buy it. There is a sharp conflict in the testimony as to whether Hiawatha would produce intoxication. The witnesses for the state testify that it would, while the witnesses for the defendant are equally positive that it will not, when drank in quantities that can usually be drunk. The' question of a sale is proven beyond question; in fact, defendant admits making the sale and delivery of two casks, at $10 per cask, to Deadweiler, in Marion county; the only question being, Was the liquor sold an intoxicating liquor?

1. Appellant’s first ground is that the court erred in not granting his motion for a continuance. The application fails to state that witnesses were not absent “by the procurement and consent of defendant,” and is therefore insufficient in law. The application further fails to state whether it is the first or second application, but, inasmuch as the case was filed April 30, 1908, and this trial took place on April 26, 1911, this court will presume that it is at least a second application, and, as the testimony would have been cumulative of that testified to by a number of other witnesses, had the application been in compliance with the statute, the court would not have erred in overruling it.

2. There was no error in refusing to quash the information and complaint. The date of the alleged sale was anterior to the filing of the information and complaint, and the fact that the complaint states: “R, W. Walden, who, being duly sworn, says, on oath, that he has good reason to believe, and does believe,” etc., and the information alleges that “Horace Vaughn, district attorney of the Fifth judicial district, now here in the district court of Marion county, Tex., do present this information, founded upon testimony taken in behalf of the state, under oath,” etc., does not present such a variance as vitiates the complaint or information. The complaint is sworn to by Mr. Walden, as required by law, and the information is in full compliance with article 466 of the Code of Criminal Procedure, 1895, and has in it all that is required by that article. If a complaint has been in fact made and filed, it is not necessary that the information shall so state. Johnson v. State, 17 Tex. App. 230.

3. In bill of exceptions No. 2, appellant complains that the court erred in permitting the witness Deadweiler to answer that appellant had shipped Hiawatha to others in Jefferson. Inasmuch as the witness also testified that appellant told him he was-shipping to these other parties, and if at any time he got out he could get it from the-persons named, and pay him for it, it was-not error to admit the testimony.

4. In his third bill, appellant complains that, while the witness Deadweiler was on the witness stand, he was asked if he had not been convicted for selling the same stuff, to which question, it is alleged, the witness answered, “yes,” while an objection was being made by defendant’s attorney. The bill further shows that the court, “on his own-motion, promptly excluded the question and answer, and instructed the jury to wholly' disregard such question and answer, and to-give them no consideration whatever, but to-absolutely ignore them and pay no attention to them.” The bill presents no error.

5. The court did not err in refusing to give appellant’s special charges Nos. 1 and 2; said charges defining intoxicating liquor improperly, requiring the liquor to be such as to, when drank in “such quantities-as the human stomach would practically hold, produce such intoxication as would result in unconsciousness or delirium.” Delirium hardly ever occurs, except in those cases where intoxicants are drank to excess for a long-continued period of time, and the charges requested are not the law. The court gave a correct definition, instructing the jury: “Intoxicating liquor, as used in this charge, is a liquor intended for use as a beverage, or capable of being so used, which contains alcohol, either obtained by fermentation, or by the additional process of distillation, in such a proportion that it will produce intoxication, when taken in such quantities as may practically be drunk.”

6. Neither did the court err in failing to give special charge No. 3 requested. It was not applicable to the evidence, in that the evidence showed that appellant sold Deadweiler two casks of Hiawatha already in Jefferson, and delivered same to him; and there was no question of taking orders and shipping from other points, as to these two casks.

7. Neither did the court err in refusing to give tjie following special charge requested: “You will find the defendant not guilty, because the law changing the penalty to a felony, and an election having been held in precinct No. 3 of Marion county, Tex., since the felony statute went into effect, repealed the misdemeanor statute.” The statute making a sale of intoxicating liquor a felony became a law July 24, 1909 (Laws 1st Called Sess. 1909, c. 15). The complaint and information in this case were filed in April, 1908, and alleged the sale to have taken place in March, 1908. Article 407 of the Penal Code 1895 provides that the repeal of prohibition shall not exempt from punishment any person who may have offended against the provisions of the law while it was in force; and article 15 of the Penal Code provides that “in every case the offender shall be tried under the law in force when the offense was committed, and, if convicted, punished under that law,” providing that, if penalty be ameliorated, the defendant shall be given the benefit of such lesser penalty. We do not suppose that any one would insist that a term in the penitentiary would be an “amelioration of the penalty” assessed in this case.

8. The only serious question in the ■case is that raised by the last ground in the motion, that “the jury was improperly influenced by the testimony of the witness Deadweiler that he had been convicted for selling the same kind of liquor. That this testimony was considered by the jury in arriving at their verdict, and was discussed by the jury while deliberating on the case.” Appellant does swear to the motion, and ■states that he is unable to secure affidavits to these facts. However, on hearing the motion for a new trial, the court permitted the jurors to be sworn. Paul Fernard testified that it was discussed, and he heard it mentioned by juryman Stutts; that he stated it was a similar case to the Deadweiler case, ■and witness further stated there was no argument about it, and such conversation or statement had no influence on him. Mr. Stutts swears positively he made no such statement, and he heard no one else make ■such statement. One or two other jurymen say that the fact that Deadweiler had been .selling this Hiawatha was mentioned in the jury room, while others say that Deadweiler’s testimony was discussed; he being a witness in this case. Of course, it was not proper to refer to the fact that Deadweiler had been convicted for selling Hiawatha, if it was done; but, as the question of whether it was mentioned or not is a question of fact, and the court hearing the motion finds it was not done, in overruling the motion, and the further fact that the only juryman nam•ed as the man who used the language positively denies doing so, we do not feel authorized to disturb the verdict. Jurymen should not discuss any fact not in evidence, ■and if the evidence was clear and undisputed that such had been done a different question would be presented; but, inasmuch as the question of fact is a disputed one, and ■even those who say the matter was mentioned say it did not influence them in arriving at a verdict, no such a case is presented as 1 should work a reversal. As hereinbefore stated there was a sharp conflict in the testimony, but if the jury believed the state’s witnesses, a case was made.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term, this ease was affirmed, and appellant has filed a motion for rehearing, in which he earnestly insists that “the honorable Court of Criminal Appeals erred in its opinion in its statement of’ the case or findings of fact.” The court finds that “appellant, at this time, was in the saloon business at Marshall.” This finding is outside the record. The typewriter of appellant’s brief made the mistake of inserting “saloon man” for “salesman” or “drummer,” and the words “saloon man” were scratched out by counsel, and “salesman” written in its place. Again, as to “when he would order a mixed car of beer and Hiawatha,” etc. This is error, because the carload lot, as ordered, were shipped from Houston to Marshall, and if beer and Hiawatha were mixed in the car the beer was delivered at Marshall, and there distributed .to purchasers on their orders, where intoxicants were sold, and then the Hiawatha was carried on by the railroad company to Jefferson — dry territory. If any beer was brought to Jefferson, it was brought by the railroad company through mistake, and was never seen or handled by the appellant. This was material to show that appellant never intentionally or knowingly shipped beer or intoxicants to purchasers in Jefferson. The court further finds: “There is a sharp conflict in the testimony as to whether Hiawatha would produce intoxication.” We fail to find any such conflict, and especially do we so fail as to Hiawatha used by Dead-weiler or Restella.

Appellant has not apparently read the record in the case, and if any mistakes are in the statement of facts as agreed to we cannot take cognizance of them, but must take the record as it is filed in this court. As to a conflict in the testimony, if we take the testimony of Restella and Deadweiler alone, perhaps there would not be; for their testimony would make it an intoxicating liquor. Louis Restella says: “ At to whether I ever have seen this Hiawatha, I seen what I had down there in the poolroom. I got three casks of it from the defendant, A. Sandoloski. I got it to sell it. It was put up just like bottle beer. It was put up in pint bottles, and the bottles looked like beer bottles. There were no labels on what I got. The defendant sold it at $10 a cask; I think it was $10. As to what I did with the stuff I got from defendant, I turned them back. I don’t know whether or not he sold it to Mr. Deadweiler; wouldn’t swear about that. I don’t know whether the defendant ever told me or not that he was going to let Deadweiler have it. I just told him I didn’t want to sell it He said lie was going to send mine back; I don’t know whether Dead-weiler got it or not. I only got three casks of the stuff from the defendant I think I used four dozen bottles of it, and turned the balance of it back to the defendant. I drank some of it. I drank three or four bottles. Q. Tell the jury whether or not it was intoxicating? A. Well, I don’t know; I know if I had drank more I believe it would make me drunk. I haven’t had much experience in drinking beer and other intoxicating liquors. I have drank some; I drink it now if I can get it. I know the effect that beer and other intoxicating liquors have on men. Q. Now tell the jury whether that has an intoxicating effect, whether you could feel the stimulating and exhilarating effect of it? A. Well, I tell you, I never did drink over one bottle of beer at a time. When I got this stuff, I just wanted to try it and see if a bottle would make me drunk, and I drank four bottles of it, and I felt pretty good. I don’t say that I was drunk; if I had drunk some more, I would have been drunk.”

Deadweiler testified: “I know the defendant, A. Sandoloski. I knew him on or about the 11th day of March, 1908. I lived in Jefferson at that time, and was engaged in business there. I was selling this Hiawatha. I had been running a saloon before local option took effect, and after the election I opened up in the same old saloon. After local option went into effect, I sold Hiawatha. I got it from Mr. Sandoloski. I first bought five casks of pints. That is 120 bottles to the cask. I paid him $10 a cask for it. At to where I got possession of the stuff, well, there was some of it brought to me — two casks, I believe it was — from Louis Restella. Q. That Mr. Louis Restella had bought and refused to sell? A. Yes, sir; they had some falling out about it, and Mr. Sand-oloski just delivered them to me, and I told him I would take it. He went and got the two casks that Mr. Restella had, and brought them and delivered them to me. Those-two casks were in Restella’s place of business in Jefferson.”

It will be thus seen that Deadweiler testified he bought the two casks of Hiawatha from defendant that Louis Restella had, and Louis Restella says: “When I got this stuff, I just wanted to try it and see if a bottle would make me drunk, and I drank four bottles, and I felt pretty good. * * * If I had drank some more, I would have been drunk.” These are the identical casks that defendant was being prosecuted for selling to Deadweiler.

Again, we are not mistaken about the statement of facts showing that a mixed car of .beer and Hiawatha would be shipped, and the beer delivered in wet territory, and the Hiawatha in dry territory. Mr. Sandoloski testified: “I usually came here and took orders, and sent them in to the brewery. If I didn’t fill the ear, they filled the car out with stock for Marshall, to save freight. The Marshall stock was straight beer. Q. You wasn’t shipping any Hiawatha into Marshall? A. They wouldn’t buy it. I wasn’t shipping any Hiawatha into Marshall. I shipped beer and Hiawatha in the same car. The beer was delivered at Marshall, and the Hiawatha came to Jefferson.” If a mistake was made in inserting “saloon man” for “salesman” it does not affect the merits of the case, because it is unquestioned that defendant was making sales of Hiawatha, and sold two casks of Hiawatha already in Jefferson, in Restel-la’s place of business, to Deadweiler.

Appellant further urges that “the court erred in paragraph 2 of its opinion in refusing to quash the information, because of a variance between it and the complaint. The complaint in the affidavit by Walden that he has good reasons to believe and does believe, is an affidavit, pure and simple, in accordance with article 34, C. G. P., and is not testimony given under oath, and is the foundation for the information made by the district attorney, in starting the prosecution in this case in the district court, and the information should have conformed thereto.” In Johnson v. State, 17 Tex. App. 231, this court held: “We take occasion to remark that it is wholly unnecessary to state in the information that it is founded upon a complaint in writing, or make any mention whatever of the oath. This is not one of the requisites of an information. If the oath is filed with the information, it is all the law requires. Code of Crim. Proc. arts. 430 and 431.” There is no question in this case but that the complaint was made and filed with the information. In the case of Warren v. State, 17 Tex. App. 209, it is said: “We think the information is sufficient. It directly charges the defendant committed the theft, although it states, parenthetically, ‘as shown by the complaint of H. M. Sullivan.’ These words, not being essential, nor descriptive of the offense, may be treated as surplusage.” And in this case the words “founded upon testimony taken in behalf of the state, under oath,” are not essential, nor descriptive of the offense, and should be treated as surplusage. See, also, Hilliard v. State, 17 Tex. App. 213; Steinberger v. State, 35 Tex. Or. R. 494, 34 S. W. 617; Germany v. State, 137 S. W. 133.

All the other questions presented are fully discussed in the original opinion, yet there is, perhaps, a matter we should call attention to. While we discussed the evidence taken on the motion for a new trial, it was, perhaps, improper for us to have done so. Court adjourned on May 2, 1911, and the evidence heard on the motion for a new trial was not filed until May 24, 1911, 22 days after court adjourned. In Probest v. State, 60 Tex. Or. R. 608, 133 S. W. 263, and cases there cited, it has been held by this court that the provisions of our statutes with regard to preparation of statement of facts for appeal have reference only and exclusively to a state of facts adduced upon the merits of the case before the jury, and that those statutes have no reference to issues of fact formed on grounds set up in motion for new trial; and that the facts as to such issues, in order to be entitled to consideration on appeal, must be filed during term time. Therefore, the motion not being sworn to, no affidavits being attached thereto, and the statement of facts on the questions being filed after term time, the question presented is not raised in a manner that we can review it.

The motion for rehearing is overruled.  