
    STANSBERRY v. STATE.
    (No. 10674.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    Rehearing Denied May 25, 1927.
    Permission to Pile Second Motion for Rehearing Denied June 15, 1927.
    1. Criminal law <§=>1086(14), 1090(14)— Refused charges will not be reviewed, where no exception was reserved by notation or formal bill.
    Court of Criminal Appeals will not review refusal of charges, where no exception was reserved by notation on charges or by formal bill of exceptions.
    2. Criminal law <§=>394 — Defendant, convicted of possessing intoxicating liquor, cannot complain of testimony as to articles found in shed not belonging to him, though search was without warrant.
    Defendant, convicted of possessing intoxicating liquor, cannot complain because witnesses were permitted to describe’liquor and other articles found in shed not belonging to him, which property he disclaimed, notwithstanding such shed was searched without a warrant.
    3. Criminal law <§=>693 — Motion to exclude evidence before evidence is offered will not be recognized.
    Motion to exclude testimony before the testimony has been offered is not a recognized form of procedure, and will not be considered.
    4. Criminal law <§=>722(3)— District attorney’s argument that defendant’s .restaurant was blind for whisky business held supported by evidence.
    In prosecution for possession of intoxicating liquor, prosecutor’s statement in argument to the effect that the defendant’s claim of operating a restaurant was only a blind to cover a business of selling whisky held supported by evidence.
    5. Intoxicating liquors <§=>236(7) — Evidence held to support conviction for possessing intoxicating liquor for sale.
    Evidence held sufficient to support conviction for possession of intoxicating liquor for the purpose of sale.
    On Motion for Rehearing.
    6. Criminal law <§=>1059(2)— Exception to failure to instruct “relative to law and facts governing possession” of liquor held too indefinite to review.
    In prosecution for possessing intoxicating liquors for the purpose of sale, exception alleging failure to “instruct ,the jury relative to the law and facts governing the possession in this case” held not sufficiently' specific to comply with statutory requirement as to specifying each ground of objection, and hence not to be reviewed.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    Bill Stansberry was convicted for possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    J. Lee Cearley, of Cisco, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for possession of intoxicating liquor for the puropse of sale; punishment being two years in the penitentiary.

Several special charges were requested and refused, but no exception to the action of the court is noted on the charges over the judge’s signature, nor is such exception brought forward by formal bills. Exception must be reserved in one form or the other. Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Nichols v. State, 91 Tex. Cr. R. 277, 238 S. W. 232; Thomas v. State, 100 Tex. Cr. R. 288, 273 S. W. 571.

In two bills appellant complains because witnesses were permitted to describe •the liquor and other articles found in the shedroom of a vacant building known as the old “Downing store,” which was situated be'tween 75 and 100 feet from the building occupied by appellant. Objection was urged on the ground that the search warrant did not include the Downing store. This was shown to be a vacant store building with a shedroom extending along one side. It was accessible to the public. A vacant lot was between it and the building occupied by appellant. He could not complain because the officers had no warrant to search the “Downing store.” None of his property rights was invaded in doing so. He disclaimed the property found there. Craft v. State (No. 9858, decided April 6, 1927, not yet [officially] reported) 295 S. W. 617; Wright v. State, 103 Tex. Cr. R. 534, 281 S. W. 864; Dozier v. State, 105 Tex. Cr. R. 413, 289 S. W. 45.

If we understand bill No. 8, it presents complaint because a witness was permitted to testify that a certain five-gallon bottle of whisky was found in the old Downing store, the objection being based on two grounds, one being that said store was not described in the search warrant. This objection has already been disposed of. The other ground of objection was that appellant had made a motion to exclude the testimony of finding liquor at any other place than that described in the search warrant. It has been held that a preliminary motion to suppress evidence is not recognized in our procedure. Foster v. State, 104 Tex. Cr. R. 121, 282 S. W. 600.

Appellant makes serious complaint that certain argument of the district attorney found no support in the evidence. The objectionable statement was, in substance, that appellant claimed to be in the restaurant business in Crystal Falls when there was. as much necessity for a restaurant at that place as “there is for an ice factory at the north pole.” The statement of facts shows that at Crystal Falls there was only a store or two, a filling station, and the restaurant which appellant claimed to be operating. It was evidently the state’s contention that appellant’s claim of operating a restaurant was only a blind to cover a business of selling whisky. The observations of the district attorney seem justified under the facts. From the court’s qualification to another bill complaining of argument it appears to have been invited by counsel for appellant, and presents no error.

The sufficiency of the evidence is challenged. Officers armed with a warrant to search appellant’s place of business hurriedly drove up in front of it. Appellant ran into the back of the building, and was followed by one of the officers, who found him with an empty whisky bottle in his hand. Upon a search of the kitchen several half-gallon fruit jars were found, some of them having the smell of whisky in them, and also one or two whisky glasses were there. No whisky was found in the kitchen except a very small quantity in one Of the fruit jars. A well-used and freshly beaten path was found leading from the kitchen door of appellant’s building across a vacant lot to the shedroom of what was called the old “Downing store.” In this shedroom the officers found two or three sacks of bottled beer, and also found some in a five-gallon lard can in water which was still cold, but the ice had melted. Several cases of fruit jars were also found, in one of them was a half-gallon jar about half full of whisky, and another half-gallon jar about half full of coloring matter; also there was found a five-gallon water bottle full of whisky. The whisky found in the kitchen of appellant’s restaurant appeared to be of the same kind, color, and quality as that found in the shedroom. The fruit jars in the shed-room were the same kind as the few found in appellant’s kitchen. The Downing store and shedroom in question were unoccupied, and open in many places to the public. Evidence was noticeable that it had been used for “toilet” purposes by some, but the only plain or beaten path leading to this shed-room was from appellant’s kitchen. Other signs indicated that parties had been in the shedroom coming from other directions, but no well-defined path was discoverable, except the one mentioned. It was developed by appellant himself upon cross-examination of the state’s witnesses that a former raid had been made upon his place by the officers, at which time appellant’s conduct in running from the front of his restaurant to the back of it was the same as on the present occasion. In response to appellant’s own question to one of the officers to state the exact reason he had gotten the search warrant for appellant’s premises, the officer answered that they had been getting lots of complaints against appellant and on the place from different parties, and this, together with appellant’s conduct on the previous raid, was what caused him to ask for the search warrant. To hold that the jury was not justified in reaching the conclusion that appellant was in possession of the whisky and articles found in the shedroom of the Downing store would be to discard the finding of the jury upon an issue which has support in the evidence.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant renews his complaint of the argument of the district attorney. ■ We have given the matter careful consideration, and can add nothing to what we said in our original opinion on this point. There is also complaint of the fact that the court below failed to charge on what is thought to be the affirmative theory of the defense. The exception to the court’s charge on this particular point is as follows:

“Further, the court does ■ not instruct the jury relative to the law and facts governing the possession in this case.”

This is not specific; does not point out any particular, part of the charge which is error by reason of incorrect expression or omission. Our statute requires that the exception to the court’s charge, in order to call for review at our hands, must be in writing, and it must distinctly specify each ground of objection. The exception referred to appears to us insufficient to call the court’s attention to what we understand is now being urged as appellant’s defense, viz. that he did not possess the liquor found in the old Downing house. Neither one of the three special charges requested presented any affirmative theory that would call the attention of the court or the jury to the fact that appellant was contending that he did not have possession of said liquor. The refusal of the special charges asked by appellant appears to have been satisfactory to him, as he made no exception to such refusal in any case, and no exception thereto appears in the record either by notation on the refused charges or by separate bill.

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