
    HARRISON v. STATE.
    (No. 9544.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.
    Rehearing Denied May 12, 1926.)
    i. Criminal law <&wkey;829(l3) — Court held not to have erred in refusing defendant’s requested .special charge as to consideration to be given to defendant’s testimony that he was under other indictment, in view of court’s charge more correctly presenting the law.
    Defendant held not entitled to complain of refusal of special charge that jury could not consider defendant’s admission on the stand that he was under other indictments or such indictments, as circumstance of guilt, in view of instruction in main charge that evidence of other charges against defendant could be considered only as bearing on defendant’s credibility as a witness, and not as circumstance showing his guilt on charge in question, which instruction more nearly correctly presented law •than does requested charge.
    .2. Criminal law <&wkey;8l4(l7).
    Charge on circumstantial evidence was properly refused, where state’s testimony, if true, was sufficient to. show by positive testimony accused’s guilt.
    3. Criminal law <&wkey;>423(3) — Testimony as to visit of another to still held properly admitted, wherei such testimony, if true, was sufficient to show that such other was acting with accused in violating the law.
    In prosecution for manufacturing liquor, court did not err in admitting testimony concerning a visit of R; to still, where such testimony, if true, was sufficient to show that R. was acting With accused in violating the law.
    4. Criminal law &wkey;>957(5).
    Testimony of jurors as to reception of improper testimony after retirement being highly conflicting, trial court did not abuse his discretion in refusing new trial therefor.
    On Motion1 for Rehearing.
    5.Criminal Iaw&wkey;>l09l (I I) — Bill of exceptions in question and" answer form will not be considered; especially in absence of trial judge’s certificate that it was necessary to set bill out in such form.
    Bill of exceptions in question and answer form, and which is also multifarious and contains a number of exceptions, will not be considered; especially in absence of trial judge’s certificate that it was necessary to set the bill out in such form.
    Commissioners’ Decision.
    Appeal from District Court, Grayson County; Silas Hare, Judge.
    Jim Harrison was convicted, of manufacturing liquor, and he appeals.
    Affirmed.
    J. P. Cox, Jr., of Sherman, for appellant,
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is manufacturing liquor, and the punishment is one year in the penitentiary.

On the trial of the case the appellant testified as a witness in his own behalf and admitted that he was under other indictments for violation of the liquor law. Appellánt complains because the court refused to instruct the jury that they could not consider said evidence and charges as a circumstance of guilt. The court in his main charge gave the following instruction:

“In this case, evidence has been admitted before you of other charges against the defendant, you will only consider these, as bearing upon his credibility as a witness and not as a circumstance showing his guilt on the charge in this case.”

This charge was not excepted to. The charge as given more nearly correctly presented the law than did the special charge offered by the defendant and refused by the court.

Appellant criticizes the argument of the district attorney, and, while we think the argument was perhaps objectionable, yet the jury saw fit to give the defendant the lowest penalty, and, the evidence being amply sufficient to support the verdict, we are led to the conclusion that reversible error is not shown with reference to the argument of the district attorney.

The court correctly refused to give a charge on circumstantial evidence. The state’s testimony,- if true, was sufficient to show by positive testimony the guilt of the appellant. Neither was there error in the court’s action in permitting the witness Burton to testify concerning the visit of a Mr. Red to the still. The testimony, if true, is sufficient to show that this party was acting with the appellant in violating the. law. The witness Burton testified that at the time the party Red visited appellant at the still appellant said that Red lived with his sister, and would always notify appellant when anything was coming up or anything was going to be done so they could straighten up.

Bills of exceptions 7, 8, 9, 11, and 12 are in question and answer form, and for that reason will not be considered.

In his motion for a new trial appellant complains at the alleged misconduct of the jury. The testimony of the jurors as to the reception of any improper testimony after they had retired to consider their verdict was highly conflicting, and we are of the opinion that the learned trial court did not abuse his discretion in refusing the new trial on account of misconduct of the jury. As above stated, the alleged misconduct was testified to by one or two jurors, but, on the other hand, the state proved by other jurors that no such misconduct occurred. We think that the court was warranted in refusing to believe that any misconduct occurred, and it is also true that the lowest penalty was assessed, and we think no injury could have possibly occurred to the appellant by reason of the alleged misconduct.

Finding no error in the record, the judgment is 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.

UATTIMORE, J.

Appellant urges that we should consider his bill of exceptions No. 9, which he sets out in full in his motion. In addition to the unquestioned fact that, said bill of exceptions, which !covers several typewritten pages, is in question and answer form, it is further evident that same is multifarious and contains a number of exceptions. There is no certificate of the trial judge to the fact that it was deemed necessary to set the bill out in question and answer form in order to make plain to this court the reason for any ruling.

The matter is not before us in such shape as that it can be considered, and the motion for rehearing is overruled. 
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