
    SHADDIX v. STATE.
    (No. 6445.)
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1921.
    Rehearing Denied Dec. 14, 1921.)
    1. Criminal law <@=>1099(10) — Statement of facts, not approved by trial court, not considered.
    An instrument in the record purporting to be a statement of facts, not being approved by the trial court, cannot be considered.
    2. Criminal law <@=>[ 110(6) — Showing insufficient for withdrawal of statement of facts for authentication.
    Showing on motion for leave to withdraw the statement of facts to have it authenticated, merely stating the sending thereof by the stenographer too late for appellant to seasonably get in touch with the trial court, without showing attempt to get it earlier from the stenographer, is insufficient as to diligence.
    3. Jury <@=>97(1)— Prohibitionist not incompetent in liquor case.
    A prohibitionist is not ipso facto disqualified as a juror on a prosecution for manufacturing intoxicating liquors.
    4. Criminal law <©=3394 — Testimony of finding illicit still on defendant’s premises not objectionable merely because witness had no search warrant.
    Testimony, of one who found an illicit still on defendant’s premises, to the fact of such finding, is not objectionable merely because witness had no search warrant.
    5. Criminal law <@=>394 — Testimony of finding, illicit still on defendant’s premises held not open to objection of witness being a trespasser.
    Testimony of finding an illicit still on defendant’s premises, in the absence of further showing, is not open to the objection of witness being a trespasser; one siinply on the premises of another not being a trespasser, unless guilty of some overt act or of disregard of some express forbiddanee.
    6. Criminal law <@=>628(7) — Rebuttal witness’ name not required on indictment.
    Testimony in rebuttal is not inadmissible merely because the names of witnesses are not on the indictment.
    7. Witnesses <@=>248(1) — Irresponsive answer properly excluded.
    Statement of state witness on cross-examination, not responsive to any question, is properly excluded on request.
    8. Intoxicating liquors <@=>224 — State need not show liquor was not manufactured for an excepted purpose.
    The state in prosecution for manufacturing liquor does not have the burden of showing that it was not manufactured for one of the purposes excepted by the statute.
    9. Criminal law <@=>1091 (4), 1097(4) — Inadmissibility of admitted testimony' must be shown by statement of facts or bill of exceptions.
    In the absence of a statement of facts and a sufficient showing in the bill of exceptions of inadmissibility, admitted testimony complained of cannot be reviewed.
    10. Criminal law <@=>1097(4) — Statement of facts necessary for review of sufficiency of evidence.
    In the absence of a statement of facts, sufficiency of the evidence to support the verdict cannot be reviewed on appeal.
    On Motion for Rehearing.
    11. Criminal law <@=>1044 — To complain of testimony as surprise, there must have been effort for postponement.
    That rebuttal testimony may be complained of on appeal as< constituting surprise, there must have been effort to obtain postponement or continuance.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Columbus Shaddix was convicted of manufacturing intoxicating liquors, and appeals.
    Affirmed.
    O. R. Newland and Henry D. Nelson, both of Linden, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

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

There appears in the record what purports to be a statement of facts. Same is not approved by the trial court, and hence cannot be considered by us. Hardee v. State, 68 Tex Cr. R. 4, 150 S. W. 610; Flagg v. State, 69 Tex. Cr. R. 107,153 S. W. 852; Vernon’s Code Cr. Proe. p. 819, and authorities cited.

What purports to be a motion of appellant for leave to withdraw said statement of facts in order to have same authenticated is among the papers, but is not filed. Our Assistant Attorney General contends that same is wholly insufficient, and shows no good reason for granting the request therein contained. We are of opinion hiá objection to said motion is well taken, and that same should not be granted. . Said motion is not sworn to as to the facts therein set forth, and not enough facts are stated to justify us in granting the request. From the transcript in the record we learn that -the instant ease was tried on March 24, 1921, and that the trial term of the court below ended April 15, 1921. ■ Said motion recites that the stenographer sent to appellant’s counsel on July 5, 1921, the said statement of facts, and tliat he could not get in touch with the trial court, who was away on his vacation, within the time allowed hy law for the filing of such statement of facts in this court. July 5, 1921, was 2 months and more than 20 days after the adjournment of the trial court. Said statement of facts contains only about 40 pages, and would not appear to have required any great length of time for the preparation thereof. No effort is made in said motion to show any reason or excuse for waiting from March 24th until July to get from the stenographer said statement of facts. For aught we know from the motion, no application therefor was made to the stenographer. He may have had ample time in the long interim in which to have prepared said statement of facts if properly requested. One seeking to excuse an apparent lack of diligence must furnish this court some reason for accepting such excuse.

By a bill of exceptions appellant complains that talesmen to complete the trial jury were summoned by the sheriff, he being a state witness, and that certain named talesmen so summoned were strong prohibitionists. No fact appears in said bill reflecting any effort of the sheriff to tamper with or influence said jurors, and the trial court qualifies said bill by stating that the jurors were examined as' to their qualification by appellant, and no objection made to them until after they were sworn to serve.' The bill shows no error. We know of no reason why a prohibitionist or one of opposite views ipso facto is disqualified as a juror in any kind of a case. If on his voir dire it should appear that he entertained prejudice, that would present a different question.

Testimony, of one who found an illicit still upon the premises of another, to the fact of such finding, is not subject to the objection that there was no search warrant, and that the parties so finding said still were trespassers. One simply on the premises of another is not a trespasser under our law, unless guilty of some overt act or in disregard of some express forbiddance.

That the state used witnesses in rebuttal whose names were not on the indictment would not seem to present any reversibe error. We are unable to see how testimony properly rebuttal in character could be legally a surprise. That the accused did not know of the state’s possession of such testimony does not amount to what in law would be deemed a surprise.

A statement by a state witness while being cross-examined by the accused, which was not in response to any question asked, was properly excluded by the trial court upon request. The court’s qualification to this bill of exceptions states that, “This testimony was elicited from the witness by defendant’s counsel.” If true, this fact would in any event destroy the purported effect of the bill of exceptions.

Appellant’s special charge that the burden was on the state to show that the liquor in question was not manufactured for one of the purposes excepted by statute was properly refused. P. Robert v. State, 234 S. W. 89, No. 5970, decided at this term.

Bill of exceptions No. 6, to the rebuttal testimony of certain witnesses, cannot be sustained because of the absence of a statement of facts and of the further fact that no sufficient showing.of inadmissibility appears from the statements of the bill.

In the absence of a statement of facts the sufficiency of the evidence to support the verdict cannot be reviewed by us.

No error appearing in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant earnestly insists that we erred in not sustaining the contention set forth in his bill of exceptions No. 2, which complains of the refusal of the trial court to strike from the record the. testimony of the officers who found on the premises of one Floyd an illicit still used in connection with the manufacture of liquor charged against appellant. There is nothing in the bill of exceptions which shows any forcible entry upon the premises of Floyd, or any other act connected with the finding of said still, which would bring the testimony within any of the cases referred to by appellant in his motion.

Appellant also again urges that the state should not have been permitted to use certain witnesses in rebuttal whose names did not appear upon the indictment, and claims that such testimony was very hurtful to his cause, and was a great surprise to his counsel. Our procedure permits one on trial to make application for continuance or postponement in the event unforeseen testimony is offered against him, and in case he brings himself within the very reasonable rules laid down in regard to such matters, and his request is refused, this court has reversed; but in the instant case there was no such request, and no effort made to postpone or continue, and if appellant’s counsel was surprised to any great extent at the testimony of said witnesses, same is not made known to us in any legal manner. The mere introduction of witnesses whose names or presence are unknown to appellant of itself constitutes no ground for the reversal of cases by this court.

In the absence of a statement of facts we are unable to give further consideration to appellant’s contention that the evidence does not support the judgment.

The motion for rehearing will be overruled. 
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