
    OLIVER v. STATE.
    (No. 8338.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.
    Rehearing Denied May 7, 1924.)
    I. Criminal law <@=>1091 (I I) — Bill of exceptions in question and answer form not considered.
    Bills of exception in question and answer form will not be considered in view of mandate of Code Cr. Proc. 1911, art. 846, and of prior decisions.
    2. Criminal law <&wkey;ll84 — Judgment and sentence reformed to. conform to verdict.
    Where the verdict responsive- to indictment and charge found illegal- sale of liquor only, judgment and sentence for offense of possessing for purposes of sale will be reformed to conform to verdict.
    On Motion for Rehearing.
    3. Intoxicating liquors <&wkey;>236(ll) — Evidence held to support conviction of illegal selling.
    In prosecution for selling intoxicating liquor, evidence held to support conviction. .
    4. Criminal law <&wkey;l09l (4) — Bill of exceptions 'to admission of evidence, not reciting facts showing alleged error, insufficient.
    Bill of exceptions to admission of evidence setting out question and answer of witness, and that same was objected to, without reciting any facts making alleged error apparent to the court, is insufficient; necessity of such recital not being obviated by anything that may be shown by statement of facts.
    Appeal from District Court, Jefferson County; George C. O’Brien, Judge.
    Charlie Oliver was convicted of selling intoxicating liquor, and he appeals.
    Modified and affirmed.
    IT. G. Vaughn, of Port Arthur, Roger X. Burgess, of Beaumont, and Dickens & Dickens, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jefferson county of selling intoxicating liquor, and .his punishment fixed at one year in the penitentiary.

There are a number of counts in the indictment, but the court submitted only the one charging a sale of intoxicating liquor. The state’s testimony was direct and positive in support of the averment in this count. Bills of exception Nos. 1 and 4 are in question and answer form, and; under the mandate of article 846, C. C. P., and the uniform holdings of this court, will not be considered. Bills Nos. 5 and 6 are qualified by the learned trial judge by appending the stenographic report of the testimony relative to the matters complained of, and under the qualifications present no error.

Bills of exception Nos. 2, 3, and 7 set out a question that was asked of a witness named, and his answer, and that same was objected .to, but each of said bills is entirely devoid of any recitation of the surrounding facts or anything in the record by which the error of the evidence might be known to this court. The authorities are entirely harmonious in holding that unless the error attempted to be presented in a bill of exceptions is made apparent from tlie recitals of the bill the same will be' held insufficient.’

The court submitted in his charge only the offense of selling intoxicating liquor, which is also the offense described in one of the counts in the indictment. The verdict of the jury was responsive to the charge of the court. However, we observe that the judgment which is followed by the sentence adjudges the accused guilty of the offense of possessing for purposes of sale intoxicating liquor. The judgment of the trial court and also the sentence will be by us now reformed so that same will adjudge appellant to be guilty of the offense of selling intoxicating liquor, and that the sentence will also be reformed so as to follow this judgment.

The evidence supporting the judgment, and there being no error apparent in the record, an affirmance will be ordered.

On Motion for Rehearing.

Appellant insists that the evidence does not show a violation of the law. The chief state witness testified that he went to appellant’s soft drink stand and got some beer, after which a conversation came -up as to the getting of some stuff such as “we used to get.” From the testimony of said witness we quote:

“Mr. Oliver told me that he had some good whisky if I wouldn’t mind trying that. * * * He told me to go behind a sort of partition cut from the bar, and I went behind there. We had two or three drinks. * * * Charlie Oliver was in charge of that place — the defendant. Charlie Oliver made me the sales of the drinks 1 spoke of. I paid 50 cents a drink for them. * * * It was whisky.”

This seems to answer the contention of appellant in this regard.

Serious complaint is made of our holding in’regard to bills of exception Nos. 2, 3, and 7, and it is insisted that we should have gone to the statement of facts in order to ascertain the materiality, connection, and surrounding facts attendant upon the isolated question and answer set out in each bill of exceptions. In Vernon’s Annotated C. C. P. subd. 29 of notes under article 744, appear collated authorities too numerous to mention supporting the proposition that a bill of exceptions to the exclusion of evidence must set forth the evidence offered and the objection made thereto, and such facts as may be necessary tp disclose its relevancy, materiality, and competency, or the question sought to be presented by it will not be considered. The judges rendering the decisions referred to are the ablest who have ever graced this bench. In Quintana v. State, 29 Tex. App. 402, 16 S. W. 258, 25 Am. St. Rep. 730, Judge Davidson declined to consider “bills of exception when too indefinite to point out distinctly the matter complained of * * * to enable this court to ascertain what error was committed without having to examine other portions of the record. * * * The bill must be so certain and full in its statements that the errors complained of are made to appear by the allegation's of the bill itself.” Examination of any of the numerous authorities make it appear that the rule has been established in this state from the beginning, and is no innovation.

The motion for rehearing will be overruled.  