
    BARNES v. STATE.
    (No. 8864.)
    (Court of Criminal Appeals of Texas.
    May 27, 1925.
    Rehearing Denied Dec. 2, 1925.)
    I. Criminal law <&wkey;593 — Refusal of continuance because of counsel’s illness not prejudicial.
    Refusal of continuance, sought' because leading counsel for accused, who had tried case twice previously and was more familiar with it than either of the other attorneys,. was confined with - influenza and not able to attend eourt, held not prejudicial.
    ^2. Criminal law <&wkey;406(4) — Admission of ao-7 cused, in trial of another, as to ownership of garáge where liquor was found, admissible. In prosecution for possessing intoxicating liquor for purpose of sale, the testimony of ae-cused in the trial of another, wherein he claimed to own garage where whisky was found-by officers held admissible.
    3. Criminal law <&wkey;720( 10) — .Counsel’s argument to jury as to strength of case made out not error.
    In prosecution for possessing intoxicating liquor for purpose of sale, argument of county attorney that he believed state had made out as strong a case as he had ever seen made out held not error, being a mere deduction from the evidence in' the case.
    4. Criminal Iaw<&wkey;l090(l4) — Refusal of special charge not to consider argument not considered, in absence of bill of exceptions showing argument.
    Refusal of a special charge, asking jury not to consider certain statements of cbunty attorney in argument, will not be considered, in absence of bill of exceptions taken to argument at time it was made, approved by court, and showing that argument was really made.
    5. Criminal law <&wkey;956(l3) — Refusal of new trial for misconduct of jury not abuse of discretion.
    Refusal of a new trial on grounds of misconduct of jury, where testimony of jurors thereon was conflicting, held not abuse of discretion.
    On Motion for Rehearing.
    6. Criminal law 1122 (2) — Failing to present affirmative, defense not reversible, in absence of showing as to what defense was.
    The court’s charge, excepted to as not presenting affirmatively defense relied on by accused, is not ground' for reversal, in absence of some showing in record as to what affirmative defense was.
    7. Intoxicating liquors <&wkey;239(l) — Definition of “possession” sufficient.
    In prosecution for possessing intoxication liquors for purpose of sale, charge defining “possession” as constituted by care, control and management held adequate, especially in. absence of request for a special charge thereon.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Possession.]
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    Cleve Bames was convicted of possessing intoxicating liquors for the purpose of sale, and he appeals.
    Affirmed.
    B. D. Shropshire, of Weatherford, and Burkett, Orr & McCarty, of Eastland, for appellant.
    Tom. Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Eastland county for the offense of possessing intoxicating liquor for the purpose of sale, and his punishment assessed. at confinement in tlie penitentiary for a term of two years. •

Bill of exception No. 1 complains of the action of the court in overruling appellant’s motion to quash the jury panel. This matter was settled adversely to the appellant’s contention in the case of Hart v. State, 276 S. W. 233, this day decided; also see McNeal v. State, 274 S. W. 981, decided by this court on Hay 20, 1925.

Bill of exception No. 2, with reference to a. motion to continue bn account of appellant’s leading counsel being unable to try the case, is insufficient to show any error. The only suggestion in the motion is that counsel was at the time confined with influenza and not able to attend court, and that he had heretofore tried the case twice and was more familiar with the case than either of the other attorneys. No injury is shown in the court’s action in overruling the motion to continue.

By bill No. 3 appellant com plains of the court’s action in allowing the state to introduce a part of the testimony of appellant, given in the trial of Harry Atwood, at a former time, wherein he claimed to own the garage independently, and that he had the work done on the garage. Prom the record in the case we observe that this is the same garage where whisky was found by the officers. This testimony was clearly admissible. It was a statement made by the appellant when not under arrest, and there is nothing in the bill to show that it was not properly introduced in evidence.

There was no error in the court’s action in refusing to give appellant’s special charge shown in bin of exception No. 5. This charge asked the court to instruct the jury to not consider the remarks of the county attorney, who, on behalf of the state, said:

“I believe I know conditions in Eastland county, and, considering the circumstances and conditions prevailing in this county, I believe the state has made out as strong a case as I have ever seen made out.”

This was nothing more nor less than the deduction that the county attorney was attempting to draw from the evidence in the case, and, considering the facts in connection with the special charge offered, we are not disposed to say that it could have injured the appellant in any way. We also observe that the record fails to show that any bill of exceptions was taken to the argument thus made at the time it was made, and in the absence of a bill of exceptions approved by the court showing that the argument wa^ really made, we are not in a position to know that the facts in the case called for any such charge. And the same observations apply to the special charge embodied in defendant’s bill of exception No. 6. This bill was to the refusal of the court to give a special charge asking the jury not to consider certain statements of the county attorney in his argument, and, as stated, with reference to bill No. 5, there is no bill of exceptions in the record showing that any such argument was made and excepted to at the time it was made.

Bill of exceptions No. 7 pertains to the alleged misconduct of the jury. This bill contains the testimony taken on the motion for a new trial, and the testimony of the jurors so testifying was more or less conflicting. The trial court heard the motion and the testimony and overruled the same, and in so doing we are not in a position to say that he abused his discretion.

Believing that the appellant has had a fair trial in this case, and finding that the facts are amply sufficient to support the judgment, it is our opinion that the same should be, in all things, 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.

LATTIMORE, J.

It is asserted that we were in error in refusing to sustain appellant’s exception to the court’s charge for not presenting affirmatively the defense relied upon by the accused. Examination of the record discloses that the exception was in the most general form, and neither by it, nor anywhere in the record, are we informed as to what was the affirmative defense of the accused. There was also an exception to the court’s charge for its failure to submit the law of alibi. We have carefully examined the statement of facts, as. we are required by law to do, and observe no evidence raising such issue.

The charge of the court defining “possession” is also assailed, and, while same might have been more artistically drawn, it does inform the jury that “possession” is constituted by care, control, and management. Ño special charge seems to have been asked, and no error is thus presented.

Our conclusion in regard to the legality of the court’s action in refusing to quash the jury panel was sustained by citation of authorities,- the application of which is now attacked. In Hart v. State (No. 8728) 276 S. W. 233, opinion May 27, 1925, we passed exactly upon the same facts appearing in this record, and sustained the action of the court below in declining to quash the jury panel.

Being unable to agree with appellant in any of his contentions, the motion for rehearing will be overruled. 
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