
    MADSEN v. STATE.
    (No. 7596.)
    (Court of Criminal Appeals of Texas.
    June 13, 1923.
    Rehearing Denied Oct. 17, 1923.)
    1. Intoxicating liquors &wkey;222 — Negativing of statutory exceptions in indictment held unnecessary.
    An indictment charging unlawful manufacture of intoxicating liquors in June, 1922, need not negative the exceptions in the statute under which such manufacture was permitted.
    2. Intoxicating liquors &wkey;>l32 — State statute not inoperative by reason of federal statute.
    The state statute, forbidding the manufacture of intoxicating liquor and fixing the penalty therefor, is not inoperative by reason of the federal statute on the same subject.
    3. intoxicating liquors <&wkey;236( 19) — Evidence held to sustain conviction for unlawful manufacture.
    Evidence as to equipment for the manufacture of intoxicating liquor found in operation by the sheriff and a deputy, with defendant near, held sufficient to sustain conviction for unlawful manufacture.
    4. Criminal law <&wkey;>402 (I) — -Predicate for secondary evidence as to contents of search warrant held sufficient.
    In a prosecution for liquor law violations, testimony by the sheriff as to the loss of the search warrant under which defendant’s house had beep searched held a sufficient predicate for the admission of secondáry evidence as to its contents.
    
      5t Criminal law <&wkey;394 — Proof of possession of search warrant not condition precedent to testimony of officers as to facts observed.
    Proof of possession of a search warrant is not a necessary condition precedent to testimony of officers to facts which they observed while on appellant’s premises.
    6. Criminal law <&wkey;304(20) — Proof of intoxicating character of whisky unnecessary, where evidence would sustain conclusion that it was being manufactured.
    In a prosecution for manufacturing intoxicating liquor, where the evidence warrants the conclusion that defendant and wife were engaged in manufacturing whisky, further proof of the intoxicating character of the liquor is not required; whisky being a known intoxicant, and so regarded by the courts. .
    7. Criminal law <&wkey;304(20) — Whisky is a known intoxicant, and the courts so regard it.
    Whisky is a known intoxicant, and the eourts so regard it.
    8. Criminal law &wkey;>792(2) — Submission of law of principal offenders in prosecution for manufacturing held not error.
    Evidence that whisky in process of manufacture was found in defendant’s dwelling, that defendant was seen to leave the house but a few minutes before, and was some 20 feet away, gathering an armload of wood, and that defendant’s wife was cooking over a fire in the stove, which was also operating the still, held to authorize submission of the law of principal offenders.
    On Motion for Rehearing.
    9. Criminal law <@=921 — Alleged errors in admission of evidence not reviewable, when first complained of in motion for new trial.
    Alleged errors in the admission o'f evidence cannot be first complained of in a motion for new trial.
    10. Criminal law <@=1090(19) — Alleged errors in the admission of testimony must be presented in bills of exception, not merely as grounds for motion for new trial.
    On appeal, alleged errors in the admission of testimony must be presented in bills of exceptions, and not embraced solely in a motion for new trial, as one of the grounds therefor. ■
    Appeal from District Court, Wood. County; J. R. Warren, Judge.
    Dave Madsen was convicted of unlawfully manufacturing intoxicating liquors, and he appeals.
    Affirmed.
    Hart & Maberry, of Mineóla, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three years. The state’s theory, as developed from the evidence, is this:

The sheriff and the deputy sheriff went to the home of the appellant. They walked into the house, and, on reaching the door to the kitchen, observed a still setting upon the stove and a keg upon the table. When one of the officers attempted to enter the kitchen, appellant’s wife came to the door and forbade his entrance. Appellant at' the time was out cutting some stovewood about 20 feet from the kitchen. He was placed under attest by one of the officers. They then entered the kitchen and found a still, a copper outfit holding about 10 gallons, practically full of mash made of meal, chops, and sweetened. A worm was connected, a water keg was setting on the table, a trough to put a worm in use was near the keg, and the still was on the cook stove. The worm reached the keg with water in it. There was a churn or jar, holding about four gallons, setting under the spout of the worm, which was nearly full of whisky. The whisky was dripping into the jar. The witness tasted the liquid and took it to be whisky. He was familiar with the smell of whisky, and the liquid smelled liked whisky.. This was the statement of the sheriff. There was found other mash in the barn and smokehouse. A fire was burning, and all parts of the still were connected. The persons present were the appellant, his wife, and some of his children. The deputy sheriff testified that he tasted the liquid in the jar, and that it was a low grade of corn whisky.

When the officers approached the house, which they did very quietly, one of th»m saw the appellant leave the house, and go to the woodpile, and take some stovewood in his arms. Upon observing the officers, he threw the wood down. Appellant’s wife testified that, upon the arrival of the officers, her husband was out near the edge of the pasture, where he had been plowing some corn a short time before; that he came to the house and got a drink of water. She was canning blackberries, and was preparing to make cucumber pickles, and was using the heat in the stove in canning; that the liquid in the jar was composed of salt water and vinegar, which was used for the purpose of making pickles; that the same was true of the contents of the copper can; that all of the apparatus that was found in the kitchen was under her control, and she was using it for the purpose stated ;• that the. appellant had no connection with it. There was no fire burning in the stove; there were merely some coals. The so-called mash, found on the premises, was hog feed.

The offense was committed in June, 1922. At that time, under the law, it was not required that an indictment contain an aver-, ment negativing the exceptions contained in the statute under which the manufacture of intoxicating liquor was permitted. See Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472; Travinio v. State, 92 Tex. Cr. R. 140, 242 S. W. 242. Both this court and the Supreme Court of the United States have held that the statute forbidding the manufacture of intoxicating liquor in this state, and fixing the penalty therefor was not inoperative by reason of the federal statute upon the same subject. See Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; Chandler v. State, 89 Tex. Cr. R. 308, 232 S. W. 336, and Id., 89 Tex. Cr. R. 599, 232 S. W. 337. The Chandler Cases, on a writ of error, were decided against appellant’s contention by the Supreme Court of the United States.

The evidence in the instant case is sufficient to support the verdict. Some analogous eases are Dirden v. State, 93 Tex. Cr. R. 324, 247 S. W. 871; Hall v. State, 93 Tex. Cr. R. 392, 248 S. W. 365; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707.

There was testimony that the search warrant which was in possession of the officers at the time they went to appellant’s premises had' been lost, and the proof of its loss and contents was made by secondary evidence. ’ Objection was urged to this, because the predicate was not sufficient. The sheriff in whose possession the warrant was placed testified to its loss and to his inability to find it after search. We think the predicate was sufficient. Proof of the possession of a search warrant is not necessary as a condition precedent for the testimony of the officers to facts which they observed at the time of their visit to appellant’s premises. See Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524.

There was evidence upon which the jury could properly have determined that the appellant and his wife were engaged in manufacturing whisky. Further proof of the intoxicating character of the liquid was not demanded by the law. Whisky is a known intoxicant, and the courts so regard it. See Black on Intoxicating Liquors, § 12; also Rutherford v. State, 49 Tex. Cr. R. 21, 90 S. W. 172; Coats v. State, 86 Tex. Cr. R. 234, 215 S. W. 856; 23 Cyc. of Law & Proc. pp. 225 and 226.

There was no error in submitting the law of principal offenders. The issue was clearly raised by the evidence. At the time of his arrest, according to the state’s testimony, whisky was in the process of manufacture in the 'dwelling of the appellant. He had but a few moments before been in the house. His wife at the time of the arrest was in the kitchen, where the mash was cooking under a fire in the stove, liquid dripping from the still, and nearly 4 gallons of whisky had been manufactured. Appellant, at the immediate time of the arrest, was some 20 feet away at the woodpile and had some wood in his arms. According to the state’s evidence, he was present and took part in the unlawful act. See Middleton v. State, 86 Tex. Cr. R. 318, 217 S. W. 1046; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707. At least, the circumstances were such as justified the jury in so concluding, and the issue of appellant’s guilt was submitted under the law of circumstantial evidence. Thereby appellant’s rights were fully conserved.

The judgment is. affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant’s motion on rehearing relates almost entirely to the resubmission of questions discussed in our original opinion. Believing they were correctly decided, it is profitless to write further regarding them. However, he complains that we failed to consider bill of exceptions No. 6, or, to be more exact, one portion of said bill, wherein he complains that the court permitted the sheriff to testify that appellant’s wife said to him, “I told Dave [appellant] to pour it out,” or “I tried to get Dave to pour it out,” evidently referring to the mash or whisky.

We find that bill of exceptions No. 6 consists of 20 pages of typewritten matter, and complains in the one bill (a) of the overruling of the motion for new trial; (b) of the failure of the court to quash the indictment; (c) refusal to give special charges; and (d) not sustaining objections to the charge of the court. The entire contents of all these various instruments are set out in full in this bill. The thirteenth ground of the motion for new trial sets up that the court erred in admitting the wife’s statement specifically complained of in the motion for rehearing. We find in the record no other bill of exceptions bringing the matter forward for review. It is too late to complain for the first time'in a motion for new trial .of alleged errors in the admission or rejection of evidence, and the objections must be presented in bills of exceptions, and not embraced solely in the motion for new trial as one of the grounds therefor. See authorities collated under paragraph 7, § 207, p. 132, Branch’s Ann. P. C., and note'46, art. 744, p. 560, 2 Vernon’s Cr. Statutes.

The motion for rehearing will be overruled. 
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