
    SMALLEY v. STATE.
    (No. 9150.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.
    Rehearing Denied May 6, 1925.)
    1. Criminal lav/ <©=459 — Testimony that all of - bottles in suit oases taken from accused contained whisky, though witness only tasted and smelled contents of one, properly admitted.
    In prosecution for transporting intoxicating liquor, testimony of witness, who took from accused two suit cases containing 12 bottles each, one of which he opened, tasted, and smelled, that all of the bottles contained whis-ky, held properly admitted; fact that he had mot tasted of all going only to weight of testimony, and not to admissibility.
    2. Criminal law <©=1091 (3) — Bill of exceptions, complaining of question, but not disclosing answer, not sufficient.
    Bill of exceptions, complaining of a question, but failing to disclose answer of witness, held not sufficient.
    .3. Criminal law <&wkey;404(4) — «introduction of suit cases bontaining 24 bottles, 23 of which were sealed as whisky, not improper.
    In prosecution for unlawfully transporting intoxicating liquors, introduction into evidence of two suit cases containing 24 bottles, 23 of which were sealed and purported to contain whisky, whereas the other had been opened and contained whisky, held riot improper, where identified as those taken from accused on ar•rest.
    4. Criminal law <@=III9(2) — Complaint to question as to what year accused spent in penitentiary . not considered, where answer mot shown.
    Bill of exceptions, complaining because accused was asked what year he spent in penitentiary, which did not show answer, could not be considered, as question may have been entirely legitimate cross-examination.
    .-5. Intoxicating liquors <©=233(1) — Testimony of arresting witness that accused’s shoes were muddy and trousers wet proper.
    In prosecution for unlawfully transporting intoxicating liquor, testimony that when accused was arrested his shoes were muddy and trousers wet, and that it had rained the night be-fore, held proper as explanatory of surroundings at time offense was alleged to have been committed.
    -6. Criminal law <@=I 120(8) — Complaint of testimony as to statement of accused at time of arrest held not to show error.
    Bill of exceptions, complaining of testimony of arresting witness that at time of arrest accused said, “You needn’t do nothing to me; I have been here in bed all night,” which wholly failed to show that arrest had been made at time of statement, or any other fact showing inadmissibility, held to show no error.
    7. Criminal law &wkey;>t 111 (3) — Acceptance by accused of qualification to bills is binding on him.
    Where court qualified bill of exceptions „by stating that testimony complained of was in rebuttal of testimony of accused, acceptance of bills by accused with qualifications held binding on him.
    8. Witnesses <&wkey;406 — Rebuttal evidence held proper to show falsity of defendant’s testimony that he had been regularly employed.
    In prosecution, rebuttal testimony that accused hung around the streets, played hotels, and loafed around a taxicab company held proper to show falsity of testimony of accused that he was regularly employed for six months prior to time of alleged offense.
    On Motion for Rehearing.
    9. Intoxicating’ liquors <&wkey;236(20) — Evidence sufficient to sustain conviction for unlawfully transporting intoxicating liquor.
    In prosecution for unlawfully transporting intoxicating liquor, evidence held sufficient to sustain conviction.
    10. Intoxicating liquors <&wkey;227 — Evidence that accused had no regular employment properly admitted.
    In prosecution for unlawfully transporting intoxicating liquor, evidence that accused had no regular employment at and prior to' time of arrest, but showing that he had been seen standing around in hotels and on street corners, held proper to show that he was engaged in no work incompatible with business of bringing liquor into country.
    <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Jefferson County; J. D. Campbell, Judge.
    C. B. Smalley was convicted of transporting intoxicating liquor, and be appeals.
    Affirmed.
    O. M. Lord, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Jefferson county for the offense of transporting intoxicating liquor and his punishment assessed at confinement in the penitentiary for a term of five years.

’’The chief witness for the state testified 'that on or about January 2, 1924, at about 5:30 o’clock in the morning, he saw appellant coming from the safety stop of a railroad on which a train had just arrived from Louisiana. He identified the defendant as having a red suit case and a black one. He testified to seeing him go to a local hotel' in Beaumont and afterwards went and arrested him there, examining the suit cases, and testified that the two suit cases contained 24 quarts of whisky. Appellant testified in his own behalf, denying that he either possessed or transported any whisky or suit cases, and claimed that he was employed and had been for about six months by the Houston Construction Company in Beaumont.

By bill of exceptions No. 1 appellant complains because the state was permitted to prove by a witness that he to£k from ap-. pellant two suit cases, containing 12. bottles each, and that he opened one of them, tasted, and smelled it, and knew that the bottles contained whisky — all of them. Appellant’s contention seems to he that, as the witness had examined only one bottle, he should not have been allowed to state that all of the bottles contained whisky. This objection would go to the weight of the witness’ testimony, rather than to its admissibility. There is no statement of fact in the bill to the effect that the witness merely gave his opinion as to the other bottles; hut, on the contrary, the bill affirmatively shows that the witness swore that, all of the bottles contained whisky. Under this state of the record, the bill shows no error.

By bill No. 2 appellant complains because the state asked C. E. Kennedy the following question: “Mr. Kennedy, do yon remember of receiving some liquor from the police department in connection with the Smalley Case in the early part of this year ?” The bill fails to disclose the answer of said witness, and does not .sufficieiitly state the facts to show error.

Bill of exceptions No. 3 complains that the court allowed the state to introduce in evidence before the jury suit cases containing 24'quart bottles; one of them being opened and the others being sealed and corked as whisky. His contention in this regard is, answered by the- statement that the suit eases were identified as the same suit cases that the state’s witness claimed to have seen appellant carrying on the streets of Beaumont , and the contents were identified as' those 'found in said suit cases when appellant whs arrested and the suit cases searched.

Bill No. 4 complains because the county attorney asked defendant what year he spent in the state penitentiary of Oklahoma. This bill fails to show the answer of the witness, and, for aught the bill shows, it was entirely legitimate cross-examination.

Bill No., 5 complains because the arresting witness testified for the state that when he arrested appellant his shoes were muddy and his trousers wet, and that it had rained the night before. We think this testimony was entirely proper as explanatory of the surroundings of the appellant at the time the offense is alleged to have been committed.

Bill No. 6 complains of the testimony „of the said witness that at the time of the arrest appellant said, “You needn’t- do nothing to me; I have been here in bed all night.” j The bill wholly fails to show either that the arrest had been made at the time of the 'statement or any other fact showing its inadmissibility.

What has been said with regard to bill No. 6 is equally applicable to bill No. 7, and, same shows no error.

Bills of exceptions S, 9, and 10 complain that the court permitted two witnesses for the state to testify that appellant hung around the streets, played hotels, and loafed around a taxicab company. The court qualified these bills by stating that said testimony was in rebuttal of the testimony of the defendant. Appellant accepted the bills with this qualification, and is bound by it. An examination of appellant’s testimony shows that he testified that he was regularly employed by the Houston Construction Company, and that he had been so employed for about six months prior to the time of the alleged offense. Under this state of facts the state was entitled to show the falsity of this testimony, if it could do' so, and the testimony complained of tended strongly to accomplish this purpose.

This disposes of all of appellant’s assignments ; and, finding no error in the record, it is our opinion that the judgment should be affirmed, and it is so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals ha? been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant complains of the insufficiency of the testimony, and it has again been reviewed. The principal state witness testified positively to seeing appellant carry along a public street in the city of Beaumont two suit cases which upon examination were found to contain intoxicating liquor. A train had just come in from the east; appellant was coming from the direction of where the train had stopped; he had a conductor’s hat check in his hat, and walked into a café and set the suit cases down; the state witness watching appellant was an officer and known to appellant; after placing the grips on the floor, appellant walked over to a telephone; the state witness, watching on the outside for appellant to reappear, said that he did not come out, and that there was no way for him to get away except through the rear. Appellant not coming! out the front, state witness went inside and took possession of the suit cases. Appellant evidently fled from the officer. In a short time the officers located him and found him in a bed, undressed. He claimed to have been in bed all night. His pants showed fresh mud and water on them, as also did his shoes. The way from the café to the place where appellant was found in bed led through a muddy alley. The .fact that appellant denied the carrying ot the suit cases or haying the whisky, and that he produced a woman friend of his to testify that she sawl him come into Beaumont on another train that morning, would not affect the jury’s right to accept or reject whatever testimony they deemed truthful. We have no doubt of the sufficiency of the testimony.

Nor are we able to agree with appellant’s contention that the state erred in proving that he had no regular employment at and prior to the time of his arrest, by the testimony of various people who had seen him standing around in the hotels, on street corners, and other places. Such statements would have evidential weight as supporting the proposition that appellant was not engaged in any work by which he earned a livelihood incompatible with the business of bringing liquor into the country.

The motion for rehearing will be overruled.  