
    FRIER v. STATE.
    (No. 11163.)
    Court of Criminal Appeals of Texas.
    Nov. 16, 1927.
    Rehearing Denied Jan. 4, 1928.
    1. Intoxicating liquors <©=>236(19) — Facts held to sustain conviction of possessing still and equipment for manufacturing liquor.
    Facts held sufficient to sustain conviction of possessing still and equipment for manufacture of intoxicating liquor.
    2. Criminal law <@=>1092(9) — Court had no authority to grant additional time to file bills of exception after time originally granted had expired.
    Trial court was without authority to make, order granting extension of time in which to file bills of exception after 60-day period originally granted therefore had expired.
    On Motion for Rehearing.
    3. Criminal law <@=1090(3) — Appellate court cannot consider fact that evidence was obtained in violation of law; without bill of exceptions.
    Court of Criminal Appeals had no right, to take cognizance of fact that evidence was obtained in violation of law, where there was no bill of exceptions complaining of admission of evidence, since defendant can waive admissibility of evidence.
    
      4. Criminal law ©=899— Jury ©=>29(.2)— Defendant can waive admissibility of testimony and any right except trial by jury.
    Defendant in criminal case has power to waive admissibility of testimony and any right except trial by jury.
    Appeal from District Gourt, Kaufman County; Joel R. Bond, Judge.
    Jess Frier was convicted of possessing a still and equipment for the manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Baskett & De Lee, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing a still and equipment for the manufacture oí intoxicating liquor; punishment, one year in the penitentiary.

Officers found a still, mash, etc., in a ditch at the head 'of a ravine. Logs, brush, etc., were piled over the top of the ditch, forming a sort of covering or roof. A road ran from appellant’s place down within about 10 feet of the still, and gave no indication of being traveled any further. While the officers were watching the place appellant and his father drove up to the still in a wagon. Both got out. Appellant took a bucket out of the wagon. Appellant went over to the mash barrels which were covered with sacking of some kind, and began pushing the hoop off. One of the two said something about how many gallons they would make. Witness understood them to say, that they would make up so much. On the way back to town appellant’s father threw part of the coil of the still out of the wagon. The still was located at the edge of a field which was controlled and worked by appellant and his father. There are other circumstances in evidence supporting the proposition of guilt. We regard the facts as sufficient.

It is to be regretted that the bills of exception appearing in the record were not filed in time so that same can be considered. Appellant’s motion for new trial was overruled on March 31,1927, and an order was made by the trial court allowing 60 days in which to file bills of exception and statement of facts. On May 31, 1927, the trial judge made another order granting an extension of 15 days for filing such papers. We have uniformly held that an order made granting further time for filing bills of exception, after the expiration of the time allowed by statute, and that theretofore granted, is ultra vires. Míreles v. State, 98 Tex. Cr. R. 396, 266 S. W. 418. The order granting the extension was entered one day after the expiration of the 60 days first allowed. The bills of exception were filed too late.

No error appearing in the record, and the facts supporting the verdict and judgment, same will be affirmed.

On Motion for Rehearing.

' Appellant insists that his bills of exception be considered, but presents no authority supporting the contention that a bill of exceptions should be considered as filed within the time allowed by law, even though the order extending time for filing was made after the expiration of a time formerly granted. We see no reason to overturn the holdings of this court upon this point.

Appellant insists that we take cognizance of the fact, in the absence of a bill of exceptions, that the evidence introduced was. obtained in violation of law. We are not in agreement with this contention. One who seeks to have the action of the court below reviewed in the matter of the introduction of testimony deemed illegally admitted must make his objection at the proper time, and must make known to this court, by orderly process, the fact that such objection was made, and that same was overruled, and that an exception was reserved to the action of the court. The accused can waive anything except the right of trial by jury. He can waive his objections to testimony the admission of which over objection would be illegal, and can thus waive any question of the illegality of such testimony. In the absence of a bill of exceptions complaining of the introduction of the testimony, same would appear to be properly before the court and properly admitted for the consideration of the jury.

The motion for rehearing will be overruled. 
      
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