
    GENTRY v. STATE.
    (No. 10004.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.
    Rehearing Denied Jan. 19, 1927.)
    1. Criminal law <§=>296 — Failure to submit special plea of former conviction held not error under evidence.
    Whpre there was no evidence of former conviction, held, that failure to submit special plea of former conviction was not error.
    2. Criminal law <§=>1036(1)— Introduction of testimony must be opposed when testimony is offered.
    Defendant must oppose introduction of testimony when it is offered to review court’s action on appeal.
    3. Criminal law &wkey;l 166,(1) — Appellate court will not -review denial of motion to suppress evidence.
    Failure to sustain preliminary motion to suppress evidence obtained by alleged illegal search raises no question for review.
    On Motion for Rehearing.
    4. Criminal law <&wkey;>il!I(3) — Statement of objections in bill of exceptions is not presumed to be true.
    Statement of objections in the bill of exceptions carries with it no certificate of truth of facts stated.
    Appeal from District Court, Hopkins County; J. M. Melson, Judge.
    Tom Gentry was convicted of possession of equipment for manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    
      Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, Robt. M. Lyles, Asst. State’s Atty., of Groes-beck, for the State.
   MORROW, P. J.

The possession of equipment for the manufacture of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The evidence is definite and conclusive to the point that the appellant possessed a still, mash, and other apparatus for the manufacture of intoxicating liquor.

Against the indictment appellant urges the same matters that are presented by him in the companion case, No. 10000, 290 S. W. 541, this day described. A discussion of the point raised and citation of authorities therein and the conclusion reached are applicable to the present contention. For the reasons there stated the objection to the indictment is overruled.

Some special charges complain of the failure of the court to submit a special plea of former conviction, but we fail to find any evidence upon the subject.

Bill of exceptions No. 2 reflects the action of the court upon a preliminary motion made by the appellant to suppress the evidence of certain officers who, it is charged in the motion, searched his premises without legal authority and thereby possessed crimi-nating facts which were used against him upon the trial. The procedure attempted is not recognized as a practice applicable to our jurisprudence. The explanation of the bill seems to elminate the question, but aside from that, the proper time to oppose the introduction of the testimony which' the accused deems inadmissible against him is when it is offered. If proffered testimony against him be admitted over his objection, he can invoke a review of the action of the court by preserving a record of the matter in a bill of exceptions. In the present case there seems to have been no exception to the introduction of the testimony, The action of the court in failing tff sustain the preliminary motion raises no question for review.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that there is in the record an affirmative showing of the fact that he was under arrest at the time the grand jury which returned the bill herein was organized. Investigating the part of the record to which appellant refers us, we find that the only showing appears to be in the bill of exceptions, and that part of same to which appellant particularly points is merely a statement of the objections made by appellant. This court has repeatedly held that the statement of objections carries with it no certificate of the truth of the facts so stated. We are unable to agree with this contention of the appellant.

Upon the point that the court erred in the matter of his plea of jeopardy, appellant also states that the record abounds with evidence showing that the transaction and offense for which he was upon trial here is the same as the one for which he was tried in cause No. 10000. We have again examined the record and are unable to agree with this propositio'n. Appellant was on trial in cau'se No. 10000 for the manufacture of intoxicating liquor. He is on trial here for the possession of a still, mash, etc., for the purpose of manufacturing liquor. We are unable to find any showing in the record that he was convicted in the former case for the identical act and transaction here charged.

The motion for rehearing will be overruled. 
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