
    HAIL v. STATE.
    (No. 10290.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1926.
    Rehearing Withdrawn Dec. 15, 1926).
    1. Intoxicating liquors @==236(7) — Conviction for possession of liquor for sale held sustained by evidence.
    Evidence held, to sustain conviction for possessing intoxicating liquor for purpose of sale.
    2. Criminal law &wkey;>959 — Question asked juror on hearing on motion for new trial as to matters considered by jury held not error, as being leading, and not germane.
    District attorney’s questioning of juror on hearing on motion for new trial as to whether jury considered anything outside the court’s charge and the testimony held not reversible error, as against objection that it was leading, and not germane.
    3. Indictment and information <&wkey;125(3l) — Indictment charging possession for sale of spirituous, vinous, and malt liquors and other intoxicants, held not duplicitous.
    Indictment charging defendant with possessing for the purpose of sale spirituous, vinous, and malt liquors and other intoxicants, held not duplicitous, and motion to quash properly overruled.
    4. Criminal law <&wkey;"l 114(2)— Bill of exceptions containing no statement of facts concerning various objections b.eld insufficient.
    Bill of exceptions showing only objections to various actions of trial court, but containing no statement of facts, held insufficient.
    5. Criminal law <&wkey;404(4) — Liquor found in defendant’s garage held admissible, in prosecution for possession for sale.
    In prosecution for possessing liquor for sale, admission in evidence of liquor found in defendant’s garage held not erroneous.
    6. Criminal law <&wkey;72l (5)— District 'attorney’s statement that evidence stood uncontradicted held not reference to defendant’s failure to testify.
    In prosecution for possessing liquor for sale, argument urging jury “not to be misled: about these issues, because it stands out here uncontradicted by this defendant’s son and by this defendant’s wife who were there, at his own house, and it is undenied by Albert Keller or any one else,” held not objectionable, as reference to failure of defendant to testify.
    7. Criminal law <&wkey;l 119(4) — Record as district attorney’s argument that some one had' times mixed as to buying liquor held not to-disclose error.
    In prosecution for possessing liquor, argument of district attorney, “Gentlemen of the jury, he has got the times mixed up; he has been out theré as many as 10 or 12 or more times buying whisky,” held not to disclose error, in absence of showing as to person referred to, or that remark was not justified by testimony.
    On Application to Withdraw Motion for Rehearing.
    8. Criminal law @=l 131 (I) — After filing written opinion, appeal cannot be dismissed on appellant’s application.
    After a written opinion has been filed, appeal cannot be dismissed on application, made as part of application to withdraw motion for rehearing.
    Appeal from District Court, Hale County? R. C. Joiner, Judge.
    J. J. Hail was convicted of possessing intoxicating liquor for purpose of sale, and hie appeals.
    Affirmed.
    L. D. Griffin, of Plainview, and T. H. Mc-gregor and A. L. Love, both of Austin, for-appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Hale county for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

Appellant lived 3% or 4 miles from the-town of Hale Center on premises which he had rented some years before from a Mr. Price. On the occasion of the alleged commission of the offense herein, a group of officers with a search warrant went to appellant’s premises- and found in his garage, situated some 50-feet from the dwelling, two bottles of whisky buried in one place and another bottle buried in another. Appellant’s car was in the-garage at the time, and witnesses testified that appellant used the garage commonly for a place to keep his car. There were two defensive theories suggested by the testimony, viz.: (1) That the garage was in the care, control, and possession of Mr. Price, and consequently the finding of the liquor therein did hot carry with it proof of ownership .in appellant; (2) that the liquor had been placed in the garage some time prior to its being found, and that same was placed there by another party than appellant without the knowledge of the latter.

Mr. Price clearly negatived any theory of possession, control, or management of the garage at the time the officers found the whis-ky therein. He testified that he had rented the premises and moved away from same in 1921 to the town of Hale Center, reserving at the time the right to use the garage whenever he needed it, but he further testified that he moved from Hale Center to Lubbock in an adjoining county afterward, and that he was not on the'place where the garage was situated and had no use for it at any time during the year 1925; the raid of the officers occurring in December of that year. We deem it unnecessary to further discuss this theory of appellant; he not having testified, and the testimony of Mr. Price, as above given, showing conclusively that he did not exercise any control or possession of the garage during 1925.

Appellant’s witness Armstrong testified that some time in December, 1925, before the officers made the raid referred to, he paid a party whose name he did not know, in 'Hale Center, $15 upon the promise of said party to take three bottles of whisky out to the garage of Mr. Hail, defendant herein, and leave it there for him (Armstrong). He testified to no interest in the property or premises of appellant, nor to any reason why he should direct a stranger to secrete in the garage of appellant, 3% or 4 miles from the town in .which Armstrong lived, three bottles of intoxicating liquor. We think the jury entirely within their rights in rejecting the testimony of Armstrong.

The state showed by a witness named Wilson that about the same date as the raid made by the officers this witness bought from appellant at appellant’s home a quart of whisky. The officers testified that on the occasion where they found the three bottles of whisky in appellant’s garage they also found quantities of emply bottles around his premises, smelling of whisky, also fruit jars smelling of whisky, also several jugs having the same odor. Some of the bottles and jars were in tow sacks. We deem the evidence sufficient to justify the finding of the jury.

Appellant has a bill of exceptions taken to a question propounded by the district attorney to a juror upon the hearing of the motion for new trial, said question being as to whether anything was taken into consideration during the trial outside of the court’s charge and the testimony placed before the jury, the objection to which was that it was a leading question, and not germane to any issue. The bill is meager, but we infer that the court was endeavoring to ascertain whether there had been, any misconduct on the part of the jury while in retirement. We think the question proper and that no error is shown.

The indictment charges appellant with possessing, for the purpose of sale, spirituous, vinous, and malt liquors, and other intoxicants. This does not seem to us duplicitous and the motion to quash same was properly overruled. The evidence being sufficient, appellant’s motion for peremptory instruction was correctly refused.

Appellant’s bills of exceptions Nos. 8, 4, 5, 6, and 7 present merely statements that appellant made certain stated objections to various actions of the trial court. There are no facts appearing in either of said bills of exception verifying or making apparent the validity of the objections made. This court has frequently said that to make a bill intelligible it must accompany the objections with such statement of the facts as will make the bill complete within itself and manifest the error complained of.

It was not erroneous to introduce before the jury the three bottles of whisky found in the garage mentioned.

Bill of exceptions No. 9 complains of the argument of the state’s attorney. It appears that, when objection was made to said argument, same was sustained. In said argument the district attorney urged the jury “not to be misled about these issues, because it stands out here uneontradicted by this defendant’s son and by this defendant’s wife who were there, at his own house, and it is undenied by Albert Keller or any one else.” It is insisted that this is a reference to the failure of the defendant to testify. We do not think so. Appellant did not introduce his wife or his son, and there is nothing in the bill to show what was meant by the reference in the argument to “these issues”; hence we are unable to say from an inspection of the witness Keller’s testimony whether he denied them or not. There is nothing in the bill.

Another complaint of the. argument is because the district attorney said: “Gentlemen of the jury, he has got the times mixed up; he has been out there as many as 10 or 12 or more times buying whisky.” There is nothing before this court to make it appear as a fact to whom the district attorney was referring, nor to make it apparent to us that the remark was not justified by the testimony.

Being of opinion that no error is shown in the record, the judgment will be affirmed.

On Application to Withdraw Motion for Rehearing.

Appellant has filed his sworn affidavit asking that his motion for'rehearing herein be withdrawn and that the appeal be dismissed. The appeal cannot be dismissed, because we have written and filed an opinion herein. The' motion for rehearing will be withdrawn in accordance with appellant’s request. 
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