
    EDWARDS v. STATE.
    (No. 7981.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.
    Rehearing Depied June 11, 1924.
    Leave to File Second Motion for Rehearing Denied June 25, 1924.)
    1. Criminal law <§=>943— Denial of continuance for absence of witness who would have contradicted defendant’s testimony held not ground for reversal.
    Denial of application for continuance for absence of witness held not ground for reversal in view of defendant’s testimony contradictory to testimony expected from absent witness shown by application.
    2. Criminal law <@=>938(1) — Denial of new trial because of denial of continuance for absence of witness held not error.
    Denial of new trial on ground that court erred in denying continuance for absence of witness held not error, where' application showed that absent witness’ testimony would have contradicted that given by defendant; it being unlikely that result of trial would have been different.
    3. Criminal iaw <@=>1091 (2) — Bill of exceptions held insufficient for failure to show that any of jurors trying defendant heard charge to grand jury.
    Bill of exceptions complaining of court’s-charge to grand jury in petit jury’s presence held insufficient for failure to show that defendant was tried before any of the petit jury present at the time. • .
    4. Jury <@=>116 — Charge to- grand jury in presence of petit jurors held not ground of challenge to array of petit jurors.
    Court’s remarks relative to enforcement of prohibition law during charge to grand jury at ' time when petit jury were present held not ground of challenge to array of petit jurors under Code Cr. Proc. 1911, arts. 680, 681, 716.
    5. Intoxicating liquors <@=>233(2) — Evidence as to liquor found at or near defendant’s house held admissible In prosecution for having possession for purpose of sale.
    In prosecution for having possession of intoxicating liquor for purpose of sale, evidence as to liquor found at or near defendant’s house held' admissible; question whether the liquor belonged to defendant being for jury.
    6. Criminal law <@=>369(3) — Evidence tending to prove manufacture of liquor held admissible in prosecution for possession for purpose of sale.
    Evidence as to barrels found at or near defendant’s premises, tending to prove the manufacture of liquor, held admissible in prosecution for having possession of liquor for purpose of sale.
    On Request for Leave to File Second Motion for Rehearing.
    7. Criminal law <@=>I099<(14) — Statement of facts filed in appellate court cannot he changed.
    A statement of facts, after it is filed in the Court of Criminal Appeals, cannot be changed, modified, or amended by ex parte affidavits.
    Appeal from District Court, Throckmorton County; W. R. Chapman, Judge.
    H. H. Edwards was convicted of having possession of intoxicating liquor for the purpose of sale, and be appeals.
    Affirmed.
    A. J. Smith and C. J. Henson, both of Has-kell, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s .Atty., both of Austin, for tbe State.
   HAWKINS, J.

Conviction is for tbe possession of intoxicating liquor for tbe purpose of sale, with punishment assessed at confinement in tbe penitentiary for one year.

Bert Barber testified in substánce that 'on December 22d be came to tbe town of Throckmorton with appellant in tbe latter’s car; that he noticed a handgrip in tbe car at tbe time witness got in; that when they bad reached a point about three miles from Throckmorton, tbe grip bad come open; that it contained some half-gallon fruit jars with something in them that looked like whisky; that appellant bad a half-pint bottle of whisky out of which witness bad taken a drink; that when they reached this point some three miles west of Throckmorton, appellant took the grip out of the car, saying to witness that if he saw anybody looking for anything to let appellant know; that he carried the grip about 50 yards from the road and left it in a pasture; that after they arrived in town, witness was approached by a party who wanted to buy some whisky; that he reported this to appellant, and that witness then went with the party to where the whisky was, to the same grip appellant had placed in the pasture on the way to town; witness let the man have a quart of whisky; that the party laid a $5 bill down by the grip; that appellant followed them and was about a half a mile behind at the time they arrived at the place where the grip was.

Witnesses Darden, Falls, and Stribling testified, in substance, that about December 22d they went to the home of appellant and made a search of his house and premises; that under the house they found three half-gallon fruit jars of whisky, one half-gallon jar of whisky was found in the cotton seed bin, and in a strawstaek on the premises something like 250 yards from the residence were found 17 half-gallon fruit jars of whisky; around the house they found some barrels which bore evidence of having contained mash.

Appellant filed an application for continuance on account of the absence of one Bill Barnett, alleging that he had been subpoenaed at a prior term of court and at that term had attended as a witness; that subsequently Barnett had moved to Cleburne in Johnson county, and that another subpoena had been served on a party in Cleburne by that name who was in attendance at court but was in fact the wrong Bill Barnett. Appellant avers that if the Barnett he had in mind were present he would testify that on the 22d day of December he was going to the city of Haskell in a car, and that the witness Barber goi in the car with him, having a handgrip; that after they reached a point about three miles west of Throckmorton, Barber said he lived out there and got out of the car, taking the handgrip with him. The court overruled appellant’s application, and this action is assigned as error. Kb question is made as to the diligence used. The effect of Barnett’s purported testimony would have been to leave an inference that Barber himself was the man who had the handgrip, which the latter attributed to appellant. We have not been able to reconcile the averments as to what Barnett would testify with the evidence given by appellant himself upon the trial. From the^ application Barnett was expected to testify that Barber rode with him (witness) out of the town of Throckmorton on the occasion in question; but we find in appellant’s testimony the statement that when he (appellant) left Throckmorton about sundown he did not know where the witness Barber was and that Barnett rode back with appellant. This is entirely inconsistent with, the evidence claimed to have been expected from Barnett. Appellant denied the transaction testified to by Barber, and also denied any knowledge of the presence of ,whisky about his house or on his premises. He also testified that he owned no handgrip but only a suit case, and undertook to establish this fact by his-children. His daughter, a little 13 year old girl, sustained this evidence of her father, asserting that he owned no handgrip but only a big red suit case. Then he placed his little son, Harold Edwards, upon the stand to further establish the same fact. He testified on direct examination that his father had no handgrip but only a big red suit case, but on cross-examination said he had both a handgrip and a suit case. Appellant cites many authorities in support of his contention that the learned trial judge was, in error in overruling his motion for new trial based upon the refusal to grant the continuance. Precedents are of, little aid in determining questions of this kind, as each case must necessarily rest upon its own facts relative to such a matter. At the time the court passed upon the motion for new trial, he had all the evidence before him. We are Inclined to the view that no error occurred in overruling the motion for new trial upon this ground. It is not likely the result of the trial would have been different if Barnett had been present and testified as expected in view of the contradiction of his anticipated testimony by appellant himself. See section 305, Branch’s Ann. P. C., and authorities there collated.

Appellant complains that on the morning court convened the judge delivered a charge to the grand jury, the petit jury for the week being present in the courtroom at the time; that during the course of his-charge the judge made certain observations relative to the enforcement of the “prohibition law,” saying in substance that it was being violated more than almost any other law, but that it was now getting easier to enforce it than it formerly had been because public sentiment had become stronger against its violation. He seems to have made these observations relative to Jones county, which was also in the judicial district over which the judge presided. He stated in this connection that violations of this law in Jones county had almost ceased, and that all parties tried had been convicted. The bill expressly recites that it was not claimed that the purpose of the judge was to influence or prejudice the petit jurors against any particular person or persons, but avers that appellant was charged in that court with this offense, and that by reason of the statement complained of he could not obtain a fair and impartial trial before said petit jurors. It is not necessary for us to pass upon whether the, statement complained of presents error. The bill fails to show that appellant was in ffict tried before any of the petit jurors who were alleged to be in the courtroom at the time. Furthermore, appellant bases his bill upon the refusal of the court to sustain his challenge to the “array of petit jurors.” Article 716, C. C. P., provides that the array of jurors in cases less than capital may be challenged by either party for the same) causes provided in capital cases. Article 680, C. C. P., provides that challenge to the array in capital cases may be made only upon the ground:

“That the officer summoning the jury has acted corruptly, and has willfully summoned persons upon the jury known to be prejudiced against the defendant with a view to cause him to be convicted.”

Article 681, C. C. P., provides that the ground of challenge stated in article 680 does not apply when the jurors summoned are those which have been selected by jury commissioners; .that in such case no challenge to the array is allowed. It does not appear from the bill that any cause existed which under the statute is the basis for a challenge to the “array.”

We find two bills of exception reciting that appellant objected to the testimony of Darden, Falls, and Stribling as to the whisky and barrels found at and near appellant’s house, the objection being based on two grounds: (a) That it was not shown that said whisky was the property of appellant or that he had any knowledge of or connection with it; (b) that the testimony relative to the empty barrels showing that they had recently had mash in them was evidence of another and different offense than the one charged against appellant. The objections appear to be without merit.' The circumstance of finding a quantity of whisky secreted about appellant’s premises was equally admissible as the circumstance testified to by Barber upon the charge that appellant was in possession of it for the purpose of sale. It was for the jury to determine whether it belonged to appellant, If he thought it important, he might have requested a charge instructing the jury that they would not consider the finding of the whisky against him unless they believed beyond a reasonable doubt it belonged to him, or was in his possession. No such charge was requested. If the evidence relative to the barrels found indicated that they had been used in the manufacture of whisky, it would not render it inadmissible. It has been held that proof of the manufacture of whisky is admissible upon a charge of possessing it for the purpose of sale as throwing light upon the probable purpose of possession. Grant v. State (Tex. cr. App.) 254 S. W. 959 (No. 7593, opinion October 17, 1923).

Appellant contends that under the facts the witness Barber was an accomplice, and that, such being the case, this conviction should not be permitted to stand. We do not think it necessary to discuss this question at great length. It may be conceded that Barber was an accomplice. If the conviction rested solely upon his testimony, a serious question would be presented; but the conviction does not rest upon his testimony alone. It is supplemented by the evidence of Dar-den, Falls, and Stribling.

Finding no error in the record calling for a reversal, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

We have reviewed the record in the light of the motion for rehearing.

No new matter has been advanced, nor authorities cited.

We are constrained to believe that the case was properly disposed of on the original hearing.

The motion 'is overruled.

On Request for Leave to File Second Motion for Rehearing.

HAWKINS, J.

Appellant presents a motion requesting leave to file a second motion for rehearing, and attaches thereto an affidavit of one of the witnesses who testified in the case, which affidavit we are asked to consider. It impeaches the statement of facts, and has the effect of modifying and changing the same. A statement of facts, after filed in this court, cannot be changed, modified, or amended by ex parte affidavits. McConnell v. State, 85 Tex. Cr. R. 409, 212 S. W. 498; Gherke v. State, 59 Tex. Cr. R. 508, 128 S. W. 380; Belcher v. State, 35 Tex. Cr. R. 168, 32 S. W. 770; Ratcliff v. State, 29 Tex. App. 248, 15 S. W. 596; McBride v. State, 93 Tex. Cr. R. 257, 246 S. W. 394.

The request to file the motion is denied. 
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