
    CAMPBELL v. STATE.
    (No. 6640.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.
    Rehearing Denied May 17, 1922.)
    1. Criminal [aw &wkey;400(2) — Sheriff’s testimony that he procured search warrant admissible, in absence of question as to contents of warrant..
    In prosecution for unlawful manufacturing of intoxicating liquors, in which there was no question raised with reference to the sufficiency or the contents of a search warrant, sheriff’s testimony that he procured a search warrant and searched defendant’s premises iheld admissible, as against objection that the warrant itself was the best evidence.
    2. Criminal law &wkey;S64(4) — In prosecution for unlawfully manufacturing intoxicating liquors, evidence as to contents of keg found in defendant’s barn held admissible as part of res gesta;.
    In prosecution for the unlawful manufacture of intoxicating liquor, evidence that a keg found in defendant’s barn contained bran, meal, sugar, and other matters,* from which it could be inferred that such contents were suitable for use as mash antecedent to the manufacture of the liquor, held admissible as part of the res gestas.
    3. Criminal law <8=3419, 420(8) — Testimony as to what defendant claiming alihi had told witness about his going away held inadmissible as hearsay.
    Testimony that defendant, who claimed an alibi, had-told witness that he was going away to a certain place on the day on which h.e was claimed to have committed the crime, held inadmissible as hearsay.
    4. Criminal law <©=>656(9)— Statement of court, in limiting testimony to only issue on which it was relevant, held not comment on weight of evidence.
    Statement of court, in passing on admissibility of evidence, limiting testimony to the only issue on which it was relevant, held not a comment on the weight of the evidence, in violation of the statute.
    5. Criminal law <8=3673(3) — Action of court in limiting testimony to use thereof for impeachment purposes held proper.
    Where there was testimony that the sheriff, who had identified the defendant as one of the persons connected with the crime, had made statements out of court that he could not identify defendant, the action of the court in limiting such testimony as to statements made out of court to use thereof for impeachment purposes held proper.
    6. Criminal law <S=3|II71(I) — Argument of counsel held not ground for reversal.
    In prosecution for the unlawful manufacture of intoxicating liquor, statement of state’s attorney in argument to the jury that defendant could be convicted, though guilty of making liquor on other than specified day, held not ground for reversal, in view of the facts shown by the record.
    Appeal from district Court, Titus County; R. T. Wilkinson, Judge.
    Oscar Campbell was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Wilkinson & Cook, of Mt. Pleasant, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor.

According • to the state’s testimony, the sheriff procured a search warrant, and went to the premises of the appellant, and searched his house, and, finding nothing material there, he searched his barn, where he found a barrel or keg of what the sheriff denominated as “beer.” About three-quarters of a mile from appellant’s barn was found his still, which was suitable for manufacturing intoxicating liquor. The still was in operation, and appellant and others were present. Appellant fled, but dropped a sack, which was on his shoulder, containing several half gallon jugs of whisky.

The defense was an alibi. Against the testimony that a search warrant was obtained, objection is urged that the warrant would be the best evidence. If the contents of the warrant were in issue, doubtless the objection would be tenable. No question is raised, however, with reference to the sufficiency of the warrant or its contents. The sheriff said that he procured one and searched the premises. We think the evidence was not subject to the objection urged against it.

The conclusion of the sheriff that the keg or barrel which he found in the barn contained beer was combatted, there being evidence that it contained bran, meal, sugar, and other matters, and there was also evidence introduced that it was hog feed. The sheriff admitted that it was sweet. The evidence touching the contents of the keg was not irrelevant upon the issues involved. The description of its contents was such as to leave the inference, at least, that it was suitable for use as mash antecedent to the manufacture of the liquor. The matter was res gestae.

As shown by the court’s qualification to the bill of exceptions, the testimony which the appellant sought to elicit by his question to Oliver Buchanan was hearsay, and properly rejected as such. As part of his alibi, he claimed to have been at the home of Buchanan. As shown by the bill:

“The witness would have answered that he understood that it was the intention of the defendant to go to Oliver Buchanan’s on that day, and he saddled his horse early in the morning for that purpose.”

Qualifying it, the court said: \

“Witness testified that all he knew about where defendant was going that morning was what the defendant told him, and this testimony was excluded, because it was purely hearsay.”

Appellant, on cross-examination, was asked if he had not been indicted and attended court down in Shreveport, Ea. The bill does not disclose that the question was answered. In passing upon appellant’s, objection to it, the court remarked that it was applicable to his suspended sentence, and qualified the bill with the statement that the testimony would be limited to that issue. As stated above, the bill does not disclose what testimony was given in answer to the question. We think the comment is not a violation of the statute, inhibiting the comment of the judge upon the weight of the evidence. It was an indication that he would limit the evidence to the issue upon which he considered it relevant.

Appellant introduced testimony to the effect that the sheriff had made statements out of court to the effect that he could not identify the appellant as one of the persons connected with the offense. This was contradictory to the testimony of the sheriff upon the trial. We discern no error in the action of the court in limiting the testimony touching the statements out of court to the issue that they might be used only for impeachment purposes.

Bill No. 8 complains that, in argument, the state’s attorney told the jury:

“It don’t make any difference if the defendant is charged with making liquor on the 14th day of February, and that you believe every word that the' defense’s witnesses say, he could yet be guilty, because he is charged on or about the 14th of February, and any time within the last three years would be sufficient.” .

Though objection was made to this argument, the surrounding’facts are sufficient to show that it was inapplicable are not embraced in the bill. In fact, there are no surrounding facts stated.

In opening the case, the state’s witnesses fixed the time at which they found appellant in the act of manufacturing intoxicating liquor as the 14th day of February. Appellant testified that, on the 14th day of February, he left his home at about ,7:30 or 8 o’clock in the morning and went on horseback to the home of Oliver Buchanan; that he did not return to his home until after sundown. We do not find in his testimony any denial that he had manufactured the liquor, or that he was not present at the still at the time he manufactured the liquor; but'his testimony is to the effect of establishing an alibi upon a particular day — the 14th of February. In rebuttal, the state' introduced testimony to the effect that the witnesses were not certain as to the exact date upon which they found the still; that it was near the 14th day of February.

Finding no error warranting a reversal, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Question is raised in the motion for rehearing that we must have misunderstood the purport of the matters presented in the bills of exception. We have again examined them, and think we correctly appraised the issues, and properly disposed of them.

The motion for rehearing is overruled. 
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