
    MITCHELL v. STATE.
    (No. 11266.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied May 30, 1928.
    1. Criminal law <§=>538(3) — Defendant’s confession of connection with crime justified conviction, where facts making out substantive crime were shown otherwise.
    Defendant’s confession of his guilty connection with crime of possessing intoxicating liquor for purpose of sale was sufficient to justify his conviction, where facts making out substantive crime were shown otherwise.
    2. Criminal law <§=>1119(4) — Bill of exception, showing district attorney referred to failure of evidence disproving defendant’s confession that he buried whisky, held not reviewable, where it showed defendant did not testify, but did not show there were no other witnesses who could have denied defendant buried whisky.
    In prosecution for possessing liquor for purpose of sale, bill of exceptions showing that, in closing argument, district attorney referred to lack of evidence disproving defendant’s confession that he brought whisky, and buried it on premises, which defendant objected to as comment on his failure to testify, held insufficient, and not subject to review, where bill showed affirmatively that defendant did not testify, but did not show that there were no other witnesses who could have denied that defendant buried whisky on premises.
    '3. Criminal law <§=>730(14) — District attorney’s remarks in liquor prosecution regarding bootleggers’ selling to his and jurors’ boys held not reversible error, where -court instructed jury not to consider remarks.
    In liquor prosecution, district attorney’s remarks to jury, “Gentlemen, the bootlegger comes slipping in at night and sells his stuff to your boy and mine, and disappears before the coming of the day,” which court instructed jury not to consider, held not reversible error, since, if improper, it did not result in injury, where evidence was sufficient to sustain conviction, and defendant received minimum penalty.
    4. Criminal law <§=>956(5) — No affidavits being attached to motion for new trial, discretion rested with judge of determining whether alleged absent testimony was probably true.
    No affidavits showing that absent witnesses would testify to facts alleged by defendant being attached to motion for new trial, judicial discretion rested with trial judge of determining whether absent testimony was probably true, in view of evidence heard during trial.
    5. Criminal law <§=>595(4) — Denying continuance for absent witnesses is not reviewable, unless, considering evidence on- trial, absent testimony appears material and probably true:
    Trial court’s action in denying continuance for absent witnesses will not be reviewed on appeal, unless, when considered in light of evidence adduced on trial, absent testimony was shown to be material and probably true.
    6. Criminal law <§=609 — Where affidavit of absent witness is attached to motion for new trial, trial judge cannot determine probable truth of his testimony.
    Where absent witness makes affidavit that, if present, he would testify to facts stated in application for continuance, and such affidavit is attached to motion for new trial, discretion of trial judge to determine probable truth of such testimony ceases to operate.
    7. Criminal law <§=>597(1) — New liquor trial, based partly on application for continuance for absent witnesses, held properly refused on credibility of testimony.
    Motion for new liquor trial, based in part on application for continuance for absent witnesses, held properly denied, since, in light of evidence, court was justified in conclusion that testimony set forth in application for continuance was not probably true.
    On Motion for Rehearing.
    8. Intoxicating liquors <§=>236(61/2) — Presence of 60 pint bottles of liquor was prima facie evidence of possession by some one for sale (Pen. Code 1925, art. 671).
    Under Pen. Code 1925, art. 671, presence of more than 60 pint bottles of whisky found buried on premises was prima facie evidence that it was possessed by some one for sale.
    9. Criminal law <§=>516 — Defendant’s incriminating testimony in another’s trial was admissible against him, not as confession, but as original testimony (Code Cr. Proc. 1925, art. 727).
    Testimony of defendant in trial of another that he placed whisky on her premises, and that it belonged to him, was admissible in evidence as original testimony against defendant on his own trial, and admissibility did not depend on warning as required by Confession Statute (Code Cr. Proc. 1925, art. 727), nor was it affected by fact he was in custody.
    Commissioners’ Decision.
    Appeal from District Court, Mitchell County; Fritz R. Smith, Judge.
    Scott Mitchell was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    J. F. Cunningham, of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for one year.

Officers searched the residence of Mrs. Alva McLennan, and discovered a large quantity of whisky which was buried near the house. Appellant was not present when the search was made. On the trial of Mrs. McLennan, appellant voluntarily appeared and testified that he placed the whisky on her premises just before Christmas in the year 1926, and that it belonged to Mm. He described the manner of burying and concealing the whisky. Appellant did not testify on the present trial, and offered no testimony in his behalf.

Appellant contends that the evidence is insufficient to sustain the conviction, basing his position on the claim that the corpus delicti is shown solely by his confession. The facts making out the substantive crime were shown otherwise than • by appellant’s confession. There was no doubt that the offense for which appellant was tried had been committed by somebody. Such being the case, appellant’s confession of his' guilty connection with the crime was sufficient to justify his conviction. In the case of Clark v. State, 85 Tex. Cr. R. 153, 210 S. W. 544, this court stated the rul'e as follows:

“It is the settled law of this state that the confession of one accused of crime, of his connection therewith, will justify his conviction when the facts making out the substantive crime have been shown otherwise.”

See, also, Attaway v. State, 35 Tex. Cr. R. 403, 34 S. W. 112; White v. State, 40 Tex. Cr. R. 366, 50 S. W. 705; Sullivan v. State, 40 Tex. Cr. R. 633, 51 S. W. 375; Landreth v. State, 44 Tex. Cr. R. 239, 70 S. W. 758.

As hereinbefore stated, appellant did not testify in his own behalf. Bill of exception No. 1 shows that, in his closing argument, the district attorney used the following language:

“Gentlemen, he has confessed on the woman’s trial that he brought this whisky here and buried it on her premises, and where is the evidence on this trial disproving it?”

Appellant objected to such remarks as being a comment on the failure of appellant to testify. The court sustained the objection, and instructed the jury not to consider such remarks. The bill shows affirmatively that appellant did not testify on his trial, but does not show that there were no other witnesses who could have denied that appellant buried the whisky on Mrs. McLennan’s premises. Such being the case, the bill of exception is insufficient, and, therefore, not subject to review. We quote the language of Judge Davidson in Huff v. State (Tex. Cr. App.) 103 S. W. 394, as follows:

“But we have another line of decisions, which seem to be unbroken, that a bill of exceptions must manifest the error complained of and be complete within itself; that this court will not refer to other portions of the record to make a complete bill of exceptions. This bill does not show on its face that appellant was the only other party present at the time of the purchase of the whisky except the witness Bolt. In order to make this bill complete, it should have been shown by its terms that there were no other witnesses present except defendant and Bolt, or it should have shown, if it was a question of alibi, that there were no other witnesses by whom appellant could prove the alibi except himself. There may have been other witnesses present so far as this bill of exceptions is concerned, and we will not aid a bill by presuming there were not other witnesses present. This should have been shown on the face of the bill itself.”

See, also, Hubbard v. State, 94 Tex. Cr. R. 480, 251 S. W. 1054, and authorities cited.

As shown by bill of exception No. 2, the district attorney used in his argument language as follows:

“Gentlemen, the bootlegger comes slipping in at night and sells his stuff to your boy and mine, and disappears before the coming of the day.”

Upon objection of appellant, the court instructed the jury not to consider such remarks. We are unable to agree with appellant that his bill manifests reversible error. If improper, it does not appear from the record that the use of the language complained of resulted in injury to appellant. The 'evidence was amply sufficient to sustain the conviction, and- appellant received the minimum penalty. Clark v. State, 105 Tex. Cr. R. 32, 285 S. W. 328; Cobb v. State, 101 Tex. Cr. R. 182, 274 S. W. 153.

Appellant was indicted on May 12, 1927. Prior to his indictment, he had been remanded to jail in default of bond, and was in jail at the time of the return of the indictment, and at all times thereafter was jn jail. He was unable to employ an attorney until May 19, 1927. His trial began on May 26, 1927. When the case was called for trial, appellant presented his first application for a continuance, showing that certain witnesses, who were alleged to live in Upton and Crane counties, were absent. Attempting to excuse himself for not having sooner applied for process on the ground that he had been in, jail, was unknown in Mitchell county, had no one to aid him in preparing his defense, and was not able to secure an attorney until May 19th, appellant showed in his application that process for the witnesses had been applied for, issued and mailed to the sheriffs of Upton and Crane counties on the date last mentioned. The subpoenas were made returnable on May 26th, but were not returned, although it was shown that there had been ample time for their return. Appellant averred that the absent witnesses would testify that he (appellant) was drilling oil wells for them in Upton and Crane counties continuously from about October 1, 1926, to January 15,1927, as shown by the permanent log of the wells kept by the witnesses and signed daily by appellant.

Appellant reserved an exception to the overruling of his application for a continuance as shown by bill of exception No. 3, and based his motion for a new trial in part on such action. No affidavits of the absent witnesses showing that, if present, they would testify to the facts alleged by appellant, were appended to the motion for a new trial.

Waiving tile question of diligence, no affidavits showing that the absent witnesses would testify to the facts alleged by appellant being attached to the motion for a new trial, the judicial discretion rested with the trial judge of determining whether the absent testimony was probably true, in view of the evidence heard during the trial. Cruz v. State, 100 Tex. Cr. R. 188, 272 S. W. 486. The action of the trial court in denying a continuance will not be reviewed upon an appeal, unless, when considered in the light of the evidence adduced on the trial, the absent testimony was shown to be material and probably true. Boxley v. State, 100 Tex. Cr. R. 334, 273 S. W. 589. mere the absent witness makes affidavit that, if present, he would testify to the facts stated in the application for a continuance, and such affidavit is attached to the motion for new trial, the discretion of the trial judge to determine the probable truth of such testimony ceases to operate. Cruz v. State, supra; White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745. The proof was positive that appellant testified on the trial of Mrs. McLennan that the whisky in question belonged to him. He did not testify on his own trial. His confession of guilt was uneontroverted.

In the light of the evidence, we must conclude that the trial court was justified in his conclusion that the testimony set forth in the application for a continuance was not probably true. It follows that, in denying the motion for a new trial, based in part on the application for a continuance, the trial court did not err.

Finding no error, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Certain whisky was found upon the premises of Mrs. McLennan. Some of the bottles containing whisky were buried under a smokehouse and some were in the toilet. The testimony of the appellant, voluntarily given upon the trial of Mrs. Mc-Lennan, was reproduced and introduced upon behalf of the state. Such testimony was, in substance, that the whisky found upon the premises of Mrs. McLennan belonged to the appellant; that he purchased it at a certain place; and that it was delivered to him at the McLennan home, and there buried by him. He described the places where it was buried, and the manner of burying it. He identified certain jars of whisky and other articles that had been found upon the premises of Mrs. McLennan, and stated that they were part of the property which he had buried.

Against the sufficiency of the evidence, it is urged that the proof of the corpus delicti comes alone from the confession of the appellant. There were more than 60 pint bottles found buried on the premises of Mrs. McLennan. Under the statute, article 671, P. C. 1925, the possession of more than one quart of intoxicating liquor is made pri-ma facie evidence of guilt. The presence, therefore, of the quantity of whisky mentioned was prima facie evidence that it was possessed by some one for sale. According to the appellant’s sworn testimony upon the trial of Mrs. McLennan, the whisky belonged to him, and was placed by him at the points where it was found by the officers. In an exhaustive opinion upon the subject of proof of the corpus delicti, this court, speaking through Judge Hurt, in Kugadt’s Case, 38 Tex. Cr. R. 681, 44 S. W. 989, declared that a confession may be used in aid of evidence in making out the corpus delicti. The rule stated in Kugadt’s Case, supra, was applied and approved by this court, in an opinion written by Judge Davidson, in the case of Sowles v. State, 52 Tex. Cr. R. 17, 105 S. W. 178. It was sanctioned and discussed in the case of Aven v. State, 95 Tex. Cr. R. 159, 253 S. W. 521; also Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949; Dyer v. State, 96 Tex. Cr. R. 301, 257 S. W. 902. It is not believed that in the original opinion the rules of evidence were transgressed' in holding that, upon the facts shown by the record, the corpus delicti was established by competent evidence. It may be added that the rule of evidence requiring corroboration of a confession is of very, doubtful application to the facts in the present instance. The testimony which the appellant gave upon the trial of Mrs. McLennan was not a confession. It was a voluntary statement by him under oath in a judicial proceeding under the eye of a trial court. It was given under none of the conditions which render the voluntary nature or truth of an extrajudicial confession questionable. The statement was admissible in evidence as original testimony against the appellant upon his own trial. Its admissibility would not depend upon warning, as required by the confession statute nor would it have been affected by his being in custody. With reference to such testimony, the safeguards touching its voluntary nature and warning which are made necessary by the statute (article 727, Code Cr. Proc. 1925) are not demanded. This has been repeatedly declared. See Preston v. State, 41 Tex. Cr. R. 308, 53 S. W. 127, 881; Collins v. State, 39 Tex. Cr. R. 447, 46 S. W. 933; Johnson v. State, 39 Tex. Cr. R. 627, 48 S. W. 70, and numerous other cases collated in Branch’s Ann. Tex. P. C. § 80.

The other matters to which the motion for rehearing adverts are deemed to have been correctly decided and discussed in the original opinion.

The motion is overruled. 
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