
    HELMS v. STATE.
    (No. 10320.)
    (Court of Criminal Appeals of Texas.
    June 9, 1926.
    Rehearing Denied Nov. 3, 1926.)
    1. Criminal law <@=»1090(1).
    Record containing neither statement of facts nor bills of exception presents nothing for review.
    On Motion for Rehearing.
    2. Intoxicating liquors &wkey;>2!9.
    Indictment charging manufacture and possession of liquor and possession of equipment for its manufacture need not set out names of purchasers of liquor from defendant.
    3. Intoxicating liquors 4&wkey;229.
    Under indictment charging manufacture and possession of liquor and possession of equipment for its manufacture, evidence of sale of liquor is admissible on issue of intent in possessing still and liquor.'
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    John Helms was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    Judson C. Francis, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for unlawfully possessing intoxicating liquor for the purpose of sale; punishment one year in the penitentiary.

The record contains neither statement of facts nor bills of exception. In such condition nothing is presented to this court for review. The motion for new trial avers newly discovered evidence, to which motion is attached the affidavit of the witnesses. Without the facts proven on the trial before us it is manifest the value of the alleged newly discovered evidence cannot be appraised.

The judgment is affirmed.^

On Motion for Rehearing.

MORROW, P. J.

It is made to appear that the statement of facts was properly filed with the district clerk, but not forwarded to this court with the transcript. -An examination of the facts discloses that, according to the state’s witnesses, the appellant possessed a still and other equipment for the manufac; ture of intoxicating liquor, also a quantity of such liquor. That he sold a quantity of intoxicating liquor to Ira Pate and another person was related by Mrs. Mary Pinkston. Appellant admitted the possession, but denied the ownership or use of the equipment. He also denied the sale of intoxicants.

We find no bills of exceptions in the record, but there is attached to the motion.for new trial the affidavits of two persons, one of which is signed Lum Walker (by his mark), the other by Ira Pate. In both of these affidavits it is stated that the testimony of Mrs. W. L. Pinkston is false in that, as'a matter of fact, appellant did not sell any liquor to Ira Pate, nor did he sell it to Ltim Walker.

In his motion for new trial, appellant offered as an excuse for not calling the witnesses mentioned at the time of the trial that the indictment did not name the persons to whom the state claimed he had sold intoxicants. He was not charged with the sale of intoxicating liquor, but with manufacturing and possessing it, and also for possessing equipment for its manufacture. In charging those offenses, the law did not require that it name any purchaser. The evidence that he sold it was admissible as bearing upon the issue of intent in possessing the still and liquor.

The appellant’s case seems to have been tried without counsel, but upon the motion for new trial he appeared by counsel. We are of the opinion that the diligence to secure the testimony was not shown, and that the trial judge did not abuse his discretion in overruling the motion for new trial. Under such circumstances, this court is not warranted in disturbing the judgment.

The motion for rehearing is overruled. 
      É=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     