
    POLK v. STATE.
    (No. 9333.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    I.Indictment and'information &wkey;>32(2) —Indictment held to charge offense, notwithstanding failure to conclude after each count, “against peace and dignity of state.”
    In liquor prosecution, indictment held to charge an offense, notwithstanding that each count failed to conclude “against the peace and dignity of the state,” where last one concluded with such phrase.
    2. Criminal law <&wkey;394 — Testimony of deputy sheriff held admissible, though not shown that search warrant had been sued out to search defendant’s premises.
    In liquor prosecution, court -did not err in permitting deputy sheriff to testify that he found whisky and other things on defendant’s premises, because it was not shown that a search warrant had been sued out showing authority to search such premises.
    3. Criminal law <&wkey;459 — Testimony held admissible as against objection that state had not shown, witness, qualified as expert.
    . In liquor prosecution, testimony of witness that liquid found in jar on defendant’s premises smelled like corn whisky, and that he judged it to be such, and that he had smelled whisky a good many times, held admissible as against objection that state had not shown witness to be an expert or with sufficient experience to give Ms opinion.
    4. Criminal law <&wkey;l 169(9) — Any error in permitting witness to testify that liquid found on defendant’s premises smelled like whisky harmless.
    In liquor prosecution, any error in permitting witness to testify that liquid found on defendant’s premises smelled like whisky, because state had not shown witness to be an expert, held harmless, where defendant admitted that whisky found on Ms premises was Ms.
    5. Criminal law t&wkey;478(l) — Witness held sufficiently qualified to testify that mash found on defendant’s premises could be used to make whisky.
    Witness held sufficiently qualified to give an opinion that mash found on defendant’s premises could be used to make whisky, where he stated he had caught stills in his life and had seen stills in operation.
    6. Indictment and information &wkey;>132(3) — Overruling of defendant’s motion seeking to require state to elect, and act of judge in making election himself, held not erroneous.
    In liquor prosecution, that court overruled defendant’s motion seeking to require state to elect upon which one of the four counts it would seek conviction, and that judge made election himself, held not erroneous, since it is duty of trial judge to see that only such counts are submitted as are supported by evidence.
    7. Intoxicating liquors &wkey;>238(I) — Whether de-■ fendant intended to use mash found on his premises for making whisky held for jury.
    In liquor prosecution, whether defendant intended to use mash found on his premises for purpose of making whisky held for jury.
    <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Fell Polk was convicted of unlawfully po-sessing mash to manufacture intoxicating liquor, and he appeals.
    Affirmed.
    Thos. R. Bond, of Terrell, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, X

Appellant wás indicted, tried, and convicted in the district court of Kaufman county for unlawfully possessing mash for the purpose of manufacturing intoxicating liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

The indictment contains four counts, but the court only submitted to the jury the second count, which alleged possession of mash for the purpose of manufacturing intoxicating liquor. Appellant in his motion to quash the indietmént, as shown by bill of exception No. 1, complains of the second count being insufficient because same is surplusage., and fails to charge any offense, and because each count in the indictment fails to conclude, “against the peace and dignity of the state.” This count appears to be formal, and we fail to find any error therein. It is true that neither this count nor any of the other counts except the last one concludes “against the peace and dignity of the state,” but this court has held many times that it is not necessary for each count to so conclude, but it is sufficient for such conclusion to be made at the end of the indictment. • In Branch's P. O. p. 254, it is stated:

“It is not necessary that each count' should conclude with the, words ‘Against the peace and dignity of the State’ if the indictment or information as a whole so concludes,” citing Alexander v. State, 27 Tex. App. 537, 11 S. W. 628; Mercer v. State, 52 Tex. Cr. R. 321, 106 S. W. 365, and other decisions.

In bill 2 appellant complains because the court permitted witness Fred Adams, a deputy sheriff, to testify that he found mash in barrels, whisky, and other things on the premises occupied by appellant, because it was not shown that a search warrant had been sued out, showing authority to search said premises; and that same should be shown before such evidence was admissible. This point has been decided by this court against the appellant’s contention in the cases of Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524; Harris v. State, 93 Tex. Cr. R. 349, 248 S. W. 54; Reynosa v. State (Tex. Cr. App.) 272 S. W. 452.

In bill of exception No. 3 complaint is made to the action of the court in permitting the witness Adams to testify that the liquid found in the jar on appellant’s premises smelled like-com whisky, that he judged it to be corn whisky, that he had smelled whisky a good many times, because the state had not shown this witness to be an expert, or with sufficient experience to give his" opinion. We think this evidence was admissible, and the objection would go more to the weight than to the admission of same; besides, the appellant admitted that the whisky found by the officers on his premises was his, and there could be no harm done to him by admitting this evidence, under these circumstances anyway.

Bill of exception 4 shows complaint to the action of the court in permitting said witness Adams for the state to testify that the mash found on said premises could be used to make whisky, because said witness was not shown to be qualified to give such an opinion. We are unable to agree with this contention. The witness stated that he had caught stills in his life, and had seen stills in operation, and, from catching stills and seeing them in operation, in his opinion that mash could have been used to make intoxicating liquor, and that the mash in question could be used to make whisky. This experience we think was a sufficient showing by the state to admit this testimony.

The appellant complains in bill 5 to the court overruling his motion seeking to require the state’s attorney to elect upon which of the four counts in the indictment he would seek a conviction and because the judge made the election himself. We fail to see any error in this particular, and are of the opinion that it is not only, the right .but the duty of the trial judge to see that only such count or counts in the indictment should be submitted to the jury that are supported by the evidence. , Appellant complains in bill 6 that the court erred in not giving a peremptory instruction of not guilty, because there was no evidence that he had the mash in question for the purpose off making whisky. It was uncontradieted that he had the mash, and the state’s witness testified whisky could be made from it, and it was admitted by appellant, and testified to by the state’s witnesses, that he had whisky in his house, but the appellant contended he purchased the whisky, and that he had no intention of making whisky out of the mash, and introduced several witnesses who testified they had drunk a liquid given to them by appellant that was not intoxicating. .We are of the opinion that the court correctly overruled said motion for an instructed verdict of not guilty, and left the intention of the appellant to be passed upon by the jury. This court has often held that the jury is not bound by the uncontradicted testimony of the defendant, but can discard his testimony entirely if they see fit.

After a very careful consideration of the entire record, we are of the opinion that the judgment of the trial court should be and the same is hereby affirmed.

PER CURIAM,

j TJie foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  