
    PHILLIPS v. STATE.
    (No. 9768.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.
    Rehearing Denied May 26, 1926.)
    I.Criminal law <&wkey;8l4(l7) — Refusal of charge on circumstantial evidence held not erroneous, where undisputed and positive evidence showed accused in possession of equipment for manufacturing liquor.
    In prosecution for possession of equipment for manufacturing intoxicating liquor, where undisputed and positive evidence showed accused in possession of such equipment, refusal of charge on circumstantial evidence held not erroneous.
    2. Criminal law <S==>364(4) — Permitting officer to testify that at time of arrest still was warm and running and accused stated that whisky had been thrown out held proper, as part of res gestas.
    Where accused, when arrested in his back yard, was intoxicated, with still set up and warm, and some whisky running inside house, permitting officer to testify to statements of accused that whisky had been thrown out held proper, as being part of res gestae.
    3. Intoxicating liquors <&wkey;229 — Where prosecution for possessing equipment to manufacture liquor was defended on ground that accused found equipment and1 Was unsuccessfully attempting to manufacture liquor for personal use, exclusion of testimony as to why friend of accused furnished money with which to buy mash held not error.
    In prosecution for possession of equipment for manufacture of intoxicating liquor, where defense was that aedused had found equipment and was unsuccessfully attempting to make whisky for personal use, exclusion of testimony that friend furnished money to buy mash because financial condition of accused would not permit him to risk loss, and that his friend had not convinced him that whisky could be made with equipment, held not erroneous.
    4. Intoxicating liquors <&wkey;229 — Where accused claimed to have found equipment for making liquor and was attempting to manufacture same for his lung trouble, exclusion of testimony of cost of pint of whisky and what accused earned per day held proper.
    In prosecution for possessing equipment for manufacturing intoxicating liquor, defended on ground that accused found equipment and was unsuccessfully attempting to make liquor for his personal use for lung trouble, exclusion of evidence as to what pint of whisky would cost and what accused earned per day held proper.
    5. Criminal law <&wkey; 1169(12) — Where cross-examination of accused as to offering sheriff hush money was not objected to on ground that he was under arrest, and such objection to subsequent testimony of sheriff was sustained, accused held not prejudiced.
    Where cross-examination of accused as to offering sheriff hush money was not objected to on ground that he was under arrest when making such offer, and such objection to subsequent testimony of sheriff was sustained, accused held not prejudiced.
    On Motion for Rehearing.
    6. Criminal law <&wkey;l09l(2).
    Bill of exceptions consisting dhiefly of grounds of objection to court’s action cannot be considered as certificate of truth of matters urged as objections, and is insufficiént.
    7. Criminal law <S=>11 M (3).
    Party, without objection, accepting bill of exceptions, which has been qualified by trial court, is bound by recitals in qualification.
    
      Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; Charles A. Pippen, Judge.
    B. J. Phillips was , convicted for possessing equipment and manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    John T. Spann, of Dallas, for appellant.
    Shelby S. Cox, Grim. Dist. Atty., and William McCraw, Asst. Dist. Atty., both of Dallas, .Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tjder, for the State.
   BAKER, J.

The appellant was convicted in the criminal district court No. 2 of Dallas county for the offense of having equipment in his possession for the manufacturing of intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record in this case discloses upon the part of the state that, when the sheriff and his deputy went to the house of the appellant, they found a 25-gallon still set up, warm, and some whisky running or had run out of said still into a 10-gallon jar. They also found about 60 gallons of mash in the house and room where the still was located. Said officers-'testified that they found the appellant in the back yard in a state of intoxication, and, when he was asked what he had done with the whisky, replied that it had been poured out.

It was contended upon the part of the appellant that he found the still in question, and had attempted to install it and make whisky from the mash found in the house, but his efforts were unsuccessful, and that he had been trying to make it for his own personal .use, on account of suffering from lung trouble.

Appellant complains of the action of the court in refusing to submit a charge on circumstantial evidence. Under the facts of this case there was no issue raised authorizing such a charge. • The undisputed and positive evidence in the record shows the appellant had the equipment in his possession, and, under such facts, it was not error to refuse such a charge. Branch’s Ann. P. C., § 1874, p. 1039. Pabst v. State, 96 Tex. Cr. R. 617, 259 S. W. 577.

Complaint is made to the remarks of the assistant district attorney in his closing argument to the jury, as shown by appellant’s bills of exceptions, which are qualified by the court showing that some of the objectionable remarks were withdrawn from the consideration of the jury, and the other remarks complained of were in answer to the argument of the defendant’s counsel. As presented and qualified neither of said bills shows any error.

Complaint is also made to the action of the court in permitting the deputy sheriff to testify to the statements of the appellant made at the time of the arrest and they discovery of the still in question, to'the effect that the whisky was thrown out. There was no error in the admission of this testimony, and same comes clearly within the rule of res geste, as shown by the court’s qualification of,said bill. Stone v. State, 98 Tex. Cr. R. 364, 265 S. W. 900.

Appellant complains of the action of the court in not permitting him to testify the. reason why his friend from Alabama furnished the money with which to buy the mash in question if he (the appellant) was able to do so. This bill states that said appellant would have testified that his financial condition would not permit him to take the risk of loss, and that his friend had not convinced him that whisky could be made with said equipment. This bill, as presented, shows no error in the rejection of said testimony by the court at the instance of the state.

Objection is also urged to- the action of the court in refusing to permit the appellant to testify in his own behalf what a pint of whisky would cost in Dallas, and what he (appellant) earned per day. We fail to see how the admission of this testimony would throw any light on this case, and are of the opinion that the court properly excluded same.

Appellant complains of the action of the court in permitting the state to ask the sheriff relative to the appellant’s offering him $100 to say nothing about what he had found, and to the state’s cross-examining the appellant himself as to said matter. The appellant contends that at the time he was under arrest. The court’s qualifications to said bills show when the appellant was being interrogated about it, appellant’s counsel did not object on the ground that he was under arrest, and that, when the state was interrogating the sheriff relative to it, the appellant’s counsel raised the objection that said appellant was then under arrest, and the court sustained same, although the court states in his qualification to said bill: “The evidence was part of the res geste.” With the court’s qualification to the bill, it is clearly shown that no injury occurred' to the appellant, and the appellant’s counsel, having accepted the bill with the qualification thereon made, became bound by it, as this court has frequently heretofore announced.

After a careful examination of the entire record, and finding no reversible error therein, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Crimin'al Appeals, and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

Appellant complains because wp did not discuss his first bill of exception. It reveals that the sheriff'was recalled by the state for further examination and upon cross-examination counsel for appellant .asked, “Did you testify awhile ago that you found a burner there?” to which the witness answered, “No; I did not,” whereupon the court said to counsel, “Don’t go into those things; -we have already been into it.” The remainder of the bill consists wholly of the grounds of objection to the court’s action, and can in no sense be considered as a certificate of the truth of the matters urged as objections. This court has so repeatedly held that such a bill is insufficient that we refer only to the authorities collated by Mr. Branch under section 209, Branch’s Ann. Tex. P. 0., and under note 38, p. 557,, 2 Vernon’s 1916 Cr. St.

Appellant complains because the court considered the qualification on some of his bills which he claims is. contradictory of the bills. When a party without objection accepts a bill which has been qualified, he is bound by the recitals in the qualification. See section 215, Branch’s Ann. Tex. P. C., and note 35, p. 556, 2 Vernon’s 1916 Cr. St., for authorities.

In view of the motion for .rehearing, we have again examined all the bills. Taken together with the qualifications, no error is shown.

The motion for rehearing is overruled. 
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