
    MILLS v. STATE.
    (No. 8853.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.
    Rehearing Denied Dec. 23, 1925.)
    1. Criminal law @=>595(4), 598(2) — Continuance in liquor prosecution to secure attendance of absent witness held properly denied.
    Continuance in liquor prosecution for absence of witness who would testify that he had told defendant how to manufacture liquor held properly denied, where no diligence was shown and testimony was not competent.
    2. Criminal law @=>614(3)— Continuance in liquor prosecution for absence of defendant’s wife due to illness held properly denied.
    Second continuance in liquor prosecution for absence of defendant’s wife due to illness held properly denied, where no diligence was shown, and her deposition might have been taken, and it did not appear that her testimony would have affected admissibility of statements of ■ defendant, as testified to by the officers.
    3. Criminal law @=5364(4), 537 — Defendant’s statements that he had made whisky because ' of adverse circumstances held admissible as res gestae.
    Statements of defendant, when officers appeared at his premises to search them for intoxicating liquors, that he had made whisky because of adverse circumstances, held admissible as res gestae, and on further ground that, in connection with the making thereof and following same up, officers discovered ’ still, mash, and liquor.
    4. Criminal law <@=586! — That jury were permitted to smell contents of jars in liquor prosecution! held not erroneous.
    In liquor prosecution, that jury were permitted to smell contents of jars, etc., held not erroneous, where officers’ testimony .that liquor was whisky and intoxicating was undisputed.
    
      On Motion for Rehearing.
    5. Criminal law <&wkey;l09l (15) — Bill of exceptions must be complete within itself.
    A bill of exceptions must be complete within itself, and court will not look to other parts of record to ascertain facts upon which validity of exception depends.
    6. Criminal law &wkey;l 122(2) — Refusal of special charges complaining of references to failure of defendant to testify not considered on appeal.
    Refusal of special charges complaining of references to failure of defendant to testify cannot be considered on appeal, where there was no certificate that defendant had failed to testify; 'such certificate not being supplied by a request for a charge instructing jury not to consider an argument set out, and which was deemed to be a comment on failure of defendant to testify.
    7. Criminal law &wkey;>l 122(2) — Refusal of special charges complaining of references to failure of defendant to testify not considered on appeal.
    Refusal of special charges complaining of references to defendant’s'failure to testify cannot be considered on appeal, where there was no certificate of trial judge that state’s attorney in fact used language attributed to him.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Scott Mills was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both, of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Nacogdoches county of manufacturing intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The sheriff testified that on the' 20th of April, 1923, he went out to appellant’s place to search for a still, and saw appellant and informed him of his purpose, and that appellant told him if he had gotten there 15 or 20 minutes before he did they would have caught him making whisky.' Thereupon the officer went to the rear of appellant’s house, and in a smokehouse or cellar appellant delivered to them two gallons of whisky, a cooling barrel and pipes, a three or four burner oil stove, etc. i This was all in an underground cellar or smokehouse some 8 feet in depth. The oil stove was hot, and the entire cellar was very hot from heat apparently generated by the stove. Mash wás also found in the cellar; one barrel being freshly put up, practically full of mash. There were three barrels in all. Some of the barrels were in holes dug in the bottom of the cellar and could not be seen without raising trapdoors. Some of the liquor found by the witness was also warm, and the still was hot. Witness testified that, after finding the still in appellant’s cellar or smokehouse, he did not think he would have let appellant get away. He further testified that appellant told him he was making whisky because it was a bread and meat proposition with him; that the merchants and banks would not assist him, and he had to do it to get‘by. This statement was made by appellant before they went into the cellar and found the apparatus, liquor, etc. Witness made a further search of appellant’s house, and found in his wardrobe two gallons more of whisky which was under lock and key. Appellant’s wife first said that the key to the wardrobe where the whisky was found ,was lost, but when witness insisted she unlocked the wardrobe, and witness found the two gallons in there. In the loft or ceiling of the dwelling witness found eight half-gallon jars full of whisky and one full quart. At the time the statements were made by appellant to witness he had not found any of the liquor. Appellant led the ^ay to the still and delivered the things to witness. The' testimony of Sheriff Vaught was substantially corroborated by two other witnesses, who also stated that appellant told them that he made the whisky because he was up against it, could not get credit, could not make a living on the farm, and had to make whisky to make a living. No testimony was introduced on behalf of the appellant.

There are three bills of exception in the record. The first was taken to the refusal of what is styled a motion for delay made because of the absence of appellant’s wife and one Maples. It is a second application, and must be so' regarded. By Maples appellant only expected to show that he had told appellant how to manufacture liquor. We do not see how the testimony of Maples would be competent. No diligence is shown in regard to said witness. We. have carefully examined the application for a continuance in regard to appellant’s wife. It is not shown that any diligence, had been used to procure her presence. The general statement is made that she had been subpoenaed, but it is evident from the record that the ease had been up for trial at other terms of the court and it is shown that the witness had not been present because of her illness and other causes. Subsequent to this time no other process for said witness is sljown to have been isued.

There appears in the application statements such as the following: “That the witness will testify that she has been sick for many many years,” etc. Also in another place in said application appears the. following: “Who is now confined to her bed on account of disease of long standing.” It is also stated in the application that appellant’s wife is suffering from what is known as floating kidneys, and that at a former time when the case was called for trial she was not present because of illness. The former time referred to seems to have been in September, 1923, some five or sis months prior to the instant trial. We think the application lacking in diligence. The deposition of the witness might have been taken if deemed advisable. In addition to the above, it does not appear to ns that the testimony espected from the witness would have affected the admissibility of the statements of appellant as testified to by the officers. Appellant was charged in the indictment in two counts, one with the unlawful manufacture of intosicating liquor, and the other the unlawful possession of such liquor for the purpose of sale. Manifestly all the statements made by appellant would be admissible as part of the res gestee, whether he was under arrest or not. No error appears in the overruling of the application for a continuance.

The conclusion of ours just announced also disposes of bill of exceptions No. 2, which complains at length of the testimony of Sheriff Vaught, Mr. Chandler, and Mr. Booth as to statements made by appellant to them when they reached the premises. Not only would the statements appear to be admissible as part of the res gestse of the transaction, but also upon the further ground that, in connection with the making of said statements, and following same up, the officers discovered the still, mash, liquor, etc.

The remaining bill of exceptions complains of the fact that the jury were permitted to smell of- the contents of the jars, etc. The officers had testified that the liquor was whisky and intoxicating, and the proposition is in nowise disputed in the record. This court has often passed upon the matter contained in this objection and held it not erroneous.

The affidavit of appellant’s wife, attached to the motion for new trial, would be of no avail to him if what we have already said is true, and that there was no diligence shown in the application for continuance or postponement made on account of her absence. In our practice, such affidavit goes no further than to re-enforce the statement made by appellant in the application for continuance as to what he expects the absent witness to testify, and in similar cases we have held that, when the affidavit is made a part of the motion for new trial, it but takes away from the trial court his discretion to say whether or not the averment in the application for continuance that the witness would so testify is probably true. There is nothing in the making of an affidavit which, per se affects the question of diligence in this case. In the application, appellant avers that, at a term of the court held after the process was issued for his wife and Maples, Maples was present. We take it that, had his wife been present, he would have so stated in the application. In fact he' testified in a hearing before the.court on a motion for new trial that she was not present. Being of opinion that appellant’s showing for a postponement or continuance of the case was wholly insufficient, we see no way in which the making of the affidavit would be of any benefit to appellant.

The judgment will be affirmed.

On Motion for Rehearing.

We discussed the three bills of exception in our original opinion. We do not seem to have discussed the special charges which were refused. There are two of same, each of which relates to argument of state’s counsel. It is claimed that the arguments set out in each of said special charges were references to the failure of the defendant to testify. Considering said charges and the exceptions to the refusal of the court to give them, noted thereon as bills of exception, we observe that there is no certificate in either bill of the fact that the accused had failed to testify. Under the settled rules of ibis court a bill of exceptions must be complete within itself, and the court will not look to other parts of the record to ascertain the facts upon which the validity of the exception depends. A bill of exceptions complaining of a reference to the failure of the defendant to testify must certify in some sufficient way the fact of such failure. To ask a charge instructing the jury not to consider an argument set out, and which is deemed to be a comment on the failure of the defendant to testify, does not amount to a certificate of the judge in any way that in fact defendant did not testify.

In addition to this, we observe, in regard to these special charges, that there is no certificate of the trial judge that the state’s attorney in fact used the language attributed to him. In our opinion neither of the special charges, even when considered as bills of exception, presents error in its. refusal.

This court has often affirmed that, when intoxicating liquor is offered in evidence, the mere smelling of same by the jury manifests no error.

We see no error in our conclusion that, if appellant desired the testimony of his wife as a witness in his behalf, her deposition was available to him upon the ground of permanent illness. The matter is discussed at some length in our original opinion. The application for postponement or continuance on account of the absence of the wife not being deemed sufficient because of lack of diligence, and because of the permanent physical condition of appellant’s wife, the obtaining of her affidavit as to what she would testify if present would not seem to aid appellant in the matter of obtaining a new trial. We observe that in the affidavit the wife affirms under oath that under present conditions she could not at all go anywhere.

Being unable to agree with any of the contentions made in appellant’s motion for rehearing, same will be overruled. 
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