
    FISHER v. STATE.
    (No. 10663.)
    Court of Criminal Appeals of Texas.
    June 1, 1927.
    Rehearing Denied June 24, 1927.
    1. Criminal law <§=1091 (II) — Bills of exceptions, consisting merely of objections to search warrant, affidavit, and testimony thereunder, without setting them out or stating contents, held insufficient.
    Bills of exceptions, consisting merely of objections to search warrant and affidavit and admission of testimony thereunder, without setting them out or giving their contents in detail or substance, held, insufficient.
    2. Criminal law <&wkey;l092(l4) — Facts on which criticism of court’s action is based must be stated in bill of exceptions under judge’s certificate.
    Facts on which criticism of court’s action is based must be brought forward in bill of exceptions under certificate of trial judge.
    3. Criminal law <&wkey;364(4) — Defendant’s declarations as to ownership and sale of whisky, when discovered, etc., held res gestae.
    In trial for possessing intoxicating liquor for sale, evidence of defendant’s declarations, when whisky was discovered, that it belonged to him, that he had sold three pints, that he would like to fix it up with officers, etc., held admissible as res gestse, as against objections that defendant was under restraint and that its receipt was inhibited by confession statute.
    4. Criminal law <&wkey;l 169(2) — Hearsay affidavit as to possession of intoxicating liquor for sale would not warrant reversal of conviction on undisputed evidence of such fact.
    That affidavit, charging on information and belief that unknown person in designated place possessed intoxicating liquor for sale, was hearsay, would not warrant reversal of conviction on undisputed testimony showing defendant’s possession of intoxicating liquor for such purpose.
    5. Criminal law <&wkey;>f 11 i (3) — Bill of exceptions to introduction of affidavit as to possession of intoxicating liquor for sale showed no error, as qualified by certificate that it was Introduced solely for court’s inspection.
    Bill of exceptions to introduction in evidence of affidavit on information and belief that unknown person in designated place possessed intoxicating liquor for sale showed no error, as qualified by judge’s certificate that affidavit was not introduced in evidence before jury, but solely for inspection by court.
    On Motion for Rehearing.
    6. Criminal law <§=III4(2) — Bii! of exceptions should disclose everything necessary to manifest supposed error.
    Bill of exceptions should be made so full and certain in its statements as to disclose, in and of itself, all that is .necessary to manifest supposed error.
    7. Criminal law <&wkey;>595(4) — Refusal of continuance to procure absent witness’ testimony that intoxicating liquor was for medicinal use held not error under evidence showing its immateriality.
    In trial for possessing intoxicating liquor for sale, refusal of continuance for absence of defendant’s wife, by whom he expected to prove that liquor found was for her use as medicine, held not error, where officers found 31 pints of whisky and 75 bottles of beer, and testified without dispute as to defendant’s admission of ownership thereof and sale of three pints of whisky.
    Appeal from District Court,-Carson County; W. R- Ewing, Judge.
    W. H. Fisher was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    O’Keefe & Douglass and James Spiller, all of Panhandle, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Groes-beck, for the State.
   MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

Allen Johnson, a deputy sheriff, and four other officers, searched the tent occupied by the appellant in which they discovered a quantity of corn whisky and “Choc beer.” There was no one present,but the appellant, who declared that the liquor belonged to him.

We find six bills of exceptions in the record.

In bill No. 1 the sufficiency of the search warrant is challenged because it is indefinite in describing the person and place, and because it was based upon an affidavit upon information and belief alone, accompanied by no facts. Touching the bill, however, we find ourselves embarrassed because neither the affidavit nor the search warrant is set out in the bill, nor is the substance of them given. The bill is directed entirely to criticisms — that is, objections made.

Bill No. 2 is a complaint of the overruling of the application for a continuance to secure the testimony of the appellant’s wife, who it is charged was in the state of Colorado for her health, having gone there some six days before the arrest was made. The materiality of the testimony is questioned for the reason that in the appellant’s possession at the time of his arrest there was found a quantity of intoxicating liquor of which he, at the time, declared himself the owner.

Bill No. 3 preserves an objection to the testimony of the officers touching the result of the search, based upon the ground that the affidavit for the search warrant was defective in that it was based upon information and belief and fails to set out the facts upon which the belief was founded. This bill, however, like bill No. 1, consists merely of objections to the testimony based upon claimed defects in the affidavit and the warrant, and fails to give either in detail or substance the contents of either. It is necessary that the facts upon which the criticism of the action of the court is based be brought forward in a bill of exceptions under the certificate of the trial judge.

In bill No. 4 complaint is made of the receipt in evidence of the declarations of the appellant at the time the whisky was discovered, in which he said that the whisky found belonged to him; that he had sold but three pints; that he was trying to get on his feet; that he’ would like to fix it up with the officers as he did not want to go to jail; that he got the whisky from a man from Colorado or New Mexico. To the receipt of this testimony the objection was urged that the appellant, while not under arrest, was under restraint and practically in custody, and that its receipt was inhibited by the confession statute. If we properly comprehend the matter, however, it was res gestae.

In bill No. 6 there is complaint of the introduction in evidence of an affidavit made by C. L. Thorp and A. S. Johnson, charging on information and belief that an unknown person in a designated place possessed intoxicating liquor for the purpose of sale. The bill recites that this affidavit was introduced in evidence. Objection was urged against it that it was hearsay. In view of the testimony, which is undisputed, showing the possession of a quantity of intoxicating liquor for the purpose of sale, the mere fact that an affidavit charging that to be true was hearsay would not warrant a reversal of the judgment. However, as qualified, the bill shows that the affidavit was not introduced in evidence before the jury, but solely for inspection by the court. The jury knew nothing of the contents of the document.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that we should consider his bills of exception relating to the affidavit for search warrant. It is with genuine regret we must decline to do so. The principle stated by Mr. Branch (section 207, Branch’s Ann. Tex. P. C.) is supported by so many authorities we do not feel at liberty to depart from it. We quote section 207:

“A bill of exceptions should be made so full and certain in its statements as that, in and of itself, it will disclose all that .is necessary to manifest the supposed error.”

Many cases in addition to those cited by Mr. Branch will be found collated under note 31, art. 667, Vernon’s C. O. P. 1925, vol. 2, all in accord with the rule quoted. The question of law sought to be presented for review was decided in Chapin v. State, No. 10670, opinion June 22, 1927, 296 S. W. 1095.

We have again reviewed appellant’s contention that it was error to refuse his application for continuance on account of the absence of his wife, by whom it was averred he expected to prove the intoxicating liquor found was for her use as medicine. The officers found 31 pint bottles of whisky and 75 bottles of Choc beer, which was conceded to be intoxicating. Appellant told the officers at the time the liquor was found that it belonged to him and admitted having sold three pints of whisky. The testimony of the officers to such admission was not questioned, appellant offering no evidence to combat it. Under this state of facts we are not able to grasp the materiality of the wife’s proposed testimony that the liquor was for her use for medicinal purposes.

The motion for rehearing is overruled. 
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