
    J. A. Bates v. The State.
    No. 8466.
    Delivered January 14, 1925.
    Rehearing denied April 22, 1925.
    1. —Manufacturing Intoxicating Liquor — Continuance—Diligence Not Shown.
    Where it is not shown that a witness, duly summoned, was not in attendance upon the first day of the term, and no further process was asked for him, diligence is not shown and the bill manifests no error.
    2. —Same—Evidence—Properly Admitted.
    Where on a trial for manufacturing intoxicating liquor it was shown that witnesses found several dozen fruit jars some of which contained small quantities of whisky in a small house only a few feet from the residence of appellant, and also the finding of a moist sack of sprouted corn, which was referred to as malt used in the making of whisky, in said house, such evidence was properly admitted.
    3. —Same—Evidence—Objections to — When Made.
    Where appellant permits testimony to be introduced, without any objection until it has been concluded, 'and then does not make any motion to have the testimony already before the jury excluded, or request that the same be withdrawn, he cannot thereafter be heard to complain of the proceédings. The objection should be made, at the time the question is asked, or when answered before objection can be offered, a motion to exclude, or withdraw same, should be presented and preserved in a proper bill of exceptions.
    4. —Same—Evidence—Affidavit—Not Admissible.
    An affidavit of one Mangum, that he, and not appellant, committed the offense, and testimony of a notary public as to statements made to him by said Mangum were properly excluded.
    5. —Same—Evidence—Rule Stated.
    While this court has always held that one accused of crime might defend by showing by proper testimony that another than he was the guilty party and in exceptional cases of circumstantial evidence, admissions or confessions by another that he committed the crime has been permitted, each case must be decided on its own facts and this rule will not be extended to admit pure hearsay statements nor ex-parte affidavits, as was attempted in the instant case.
    6. —Same—Evidence—Impeaching—Properly Admitted.
    It was proper to permit the state, on cross-examination of appellant to prove by him, as affecting his credibility, that he had pleaded guilty in 1921 to having whisky in his possession, such testimony • in point of time, not being too remote.
    7. —Same—Argument of Counsel — Held. Not Improper.
    It was not improper argument for the district attorney, under the facts in this case, to say that not only was appellant guilty of the crime laid at his door, but also that he had caused his wife and little boy to perjure themselves in bis behalf. This seems to us no more than the expression of the opinion of counsel, as was also his inferences drawn from the finding of the sack of sprouted corn, and the fruit jars and still, upon appellant’s premises.
    ON REHEARING.
    8. — Same—Continuance—Diligence.
    Appellant was arrested on October 1, 1922. He was indicted February 17, 1923. The trial term began Sept. 3, 1923, and in his application for a continuance on account of the absence of the witness Cooper, he shows that he issued process for said witness on July 31. There is no showing of the date said witness was directed to attend court. He also caused process to issue for said witness to Foard County, prior to Sept. 3, the date not being shown. This is so manifestly no diligence, that it is not necessary to discuss it further.
    Appeal from the District Court of Fisher County. Tried below before the Hon. W. B. Chapman, Judge.
    Appeal from a conviction of manufacturing intoxicating liquor; penalty, two years and nine months in the penitentiary.
    The opinion states the case.
    
      C. P. Chstain, of Hamlin, and King & York, of Austin, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   LATTIMORE, Judge.

Appellant was convicted in the District court of Fisher county of manufacturing intoxicating liquor, and his punishment fixed at two years and nine months in the penitentiary.

A still and several gallons of whiskey and many containers having in them small quantities of whiskey or the odor of same, were found on appellant’s premises. The still was about four hundred yards from the house and about a half gallon of whisky was in a jar at the still. Three gallon jars of whisky were hidden in a cane patch, and a jar with whisky in it was under the house; a quantity of sprouted corn was found in the house. Appellant said to the officers that he did not think it was against the law to make whisky for one’s own use or words to that effect. We quote from the testimony of the officer:

“The defendant did not deny the ownership of the liquor. Mr. Bates asked me to taste of this stuff and see what I called it, and I tasted of it and I told him it was whisky, and he says ‘Well,’ he says, ‘I want to — I’ve got to rustle some bond before they take me to Abilene’, and so he and I started on up to the house and Mr. Bates talked along and he says ‘McCombs, you know me and you know that I wouldn’t sell this whisky to anyone;’ he says ‘Mr. Phipps he thinks that I might sell it to his boys or his neighbors’ boys.’ I says ‘Bates, yon know it’s against the law to make this stuff anyway, don’t you’? He said ‘Yes’. Might have been a little more. He did not deny that the still was his. He did not deny manufacturing whisky and he did not deny the ownership of the whisky. He did not tell me then that the still belonged to any other person. ’ ’

Another witness swore that on the night before the raid on appellant’s place, he went to a point in the vicinity of the still when same was in operation and saw two men working around it. This witness went back the next day with the posse, and with some of the other parties went at once to the vicinity of the still. Presently appellant appeared going to the still and moving rapidly. When he got within about ten feet of it a companion of the witness 'halted appellant. Appellant said at the time it was his still but he was not making but a little for his own use, had not sold any. The facts amply support the verdict of guilt.

There is a bill of exceptions complaining of the refusal of an application for continuance asked because of the absence of two witnesses. As to one of the witnesses, it is shown that service of subpoena was had on him before the beginning of the term of court at which the trial was had, but there is no effort made to show that said witness was in attendance upon the first day of the term or that if not any other process was asked for him. This was not diligence. No service was had upon the other witness, and no subpoenas are attached to the application. The bill manifests no error.

Complaint is made that the State witnesses were permitted to testify to what they found in a small house of appellant. The bill is without merit. The small house was but a few feet from the residence and in it were found several dozen fruit jars, some of which contained small quantities of whisky. Another bill of exception complains of the admission in evidence of the finding in said house of a moist sack of sprouted corn which was referred to as malt to be used in making the whisky.

Appellant’s bills of exception Nos. 5 and 6 show that appellant sat quietly by while the officers were testifying at length to what occurred between him and them and to statements made by him while with the officers. No objection was made to any of the testimony as appears from the qualification of the court to the bills, until the testimony had all been related in the presence of the jury. Afterward appellant made an objection but nowhere does there appear any motion to have the testimony already before the jury excluded or request that the same be withdrawn. An objection made to testimony after it is introduced is not tantamount to a motion to exclude or a request to withdraw. This court has often said that one accused of crime may not sit idly by and permit witnesses to testify and then be heard to object.

Bills of exception Nos. 7 and 8 present appellant’s complaint of the rejection of an affidavit made by one Mangun, and of the testimony of a notary public as to what Mangun said'to him. In our opinion neither bill presents any error. This court has always held that one accused of crime might defend by showing by proper testimony that another than he was the guilty party, and in exceptional cases of purely circumstantial evidence testimony of admissions or confessions by another that he committed the crime, has been admitted. These eases have been recently reviewed in the ease of Stone v. State, opinion handed fown November 5, 1924. and we do not feel called on to restate or analyze the principles involved. It is not necessary in order to properly dispose of the questions before us. Suffice it to say that we do not intend to extend the exception allowing such admission or confession, to any case even of circumstantial evidence unless the guilt of the party whose confession is offered would exclude 1he guilt of the party on trial, and, as is the rule in regard to most exceptions, each ease must be decided on its own facts. As applied to the affidavit and the testimony of the notarjq offered in this case, none of the cases referred to in which we held the exception to apply, support appellant’s contention. The affidavit in question not only affirms that Mangun had made the liquor and operated the still in question, but goes further at length in an effort to state that appellant had nothing to do with it, owned no interest in it and knew nothing of it. This was rank hearsay, and under no view could be held to be a circumstance. What we have just said applies fully to the proffered testimony of the notary, referred to in bill of exceptions No. 8. He offered to testify that Mangun not only said that he made the liquor, etc., but that appellant had nothing to do with it, knew nothing of it until he, Mangun, told him, and that appellant owned no part or interest in said liquor or still. The affidavit was offered as a whole and likewise the testimony of the notary. The objections to both were made in the same form. We think the court properly sustained same. It is our further opinion under the facts of this case that if Mangun’s confession had been offered without the accompanying statements which made it clearly open to objection, it should not have been received, because it was in testimony that the still was being operated the night before by two men and unquestionably if Mangun had admitted himself to be guilty, this would not have been inconsistent with the guilt of appellant. Each might be equally guilty in the transaction.

A question to appellant while on the witness stand, — if he had not during 1921 pleaded guilty to having whisky in his possession, was not too remote as affecting his credibility.

Bills of exceptions No. 10 complains that the State’s attorney in his argument charged that not only was appellant guilty of the crime here laid at his door, but also that he had caused his wife and little boy to perjure themselves in his behalf. This seems to us no more than the expression of the attorney’s opinion upon the facts before the jury. The same may be said of the inference of guilt drawn by said attorney in his argument, from the fact of the findings of the sack of sprouted corn and the fruit jars and still upon appellant’s premises. It was not improper to argue these facts as foundation for a conclusion of guilt.

The case has been carefully examined, and believing no reversible error appears, the judgment will be affirmed.

Affirmed.

OUST MOTION EOE REHEARING.

LATTIMORE, Judge.

Appellant renews complaint of the refusal of a continuance. ¥e said in our former opinion that there was no diligence. A re-examination of the record confirms our view. Appellant was arrested October 1, 1922, as the result, and at the time of, a raid on his premises. He was indicted February 17', 1923. The trial term began September 3, 1923, or nearly eight months after appellant’s indictment. In his application for continuance filed September 13th, he says that he obtained in-county process for witness Cooper on July 31st, which was returned into court September 3rd showing to have been served. There is no showing of the date witness was directed to attend court, and no subpoena is attached to the application for continuance, and we have no possible means of knowing when process served, if any, directed the attendance of the witness. Tt is stated in the application that 'prior to September 3rd appellant heard his said witness had left the county and procured another subpoena and sent it to Foard county, which was returned not served. It is admitted that witness was not present on September 3rd, 'and there, is no showing that any process was procured for him after that date or after the ease was set for trial. This is so manifestly not diligence that it is not necessary to discuss it further.

Appellant insists that we misunderstood his bill of exceptions No. 5, and that our statement that he did not move to strike out the evidence which he had permitted in, was erroneous. We have again examined the bills and find in them no certificate of the trial judge that any motion was made to strike out such testimony, but on the contrary the judge certifies to all the proceedings that then took place and he fails to set out that any motion was made to exclude the testimony. The record does not reveal a case where some chance expression or inadvertent answer was made by a witness which could not have been reasonably expected, and which no reasonable diligence on the part of the appellant could have prevented, but shows that the witness was permitted to give testimony which covers nearly a half page of the record without any objection. This would be no such case as could result from the giving of an unexpected answer, and we find no error in the court’s action as reflected in said bill of exceptions.

Appellant also insists that we did not correctly decide the point raised by him in his bill of exceptions No. 9. Said bill shows that while appellant was on the witness stand he was asked if in September 1921 he was not charged in the Federal court with possessing whisky, and if he did not plead guilty to said charge in May 1922. The objection urged by appellants was that is was too remote to be used as a circumstance against him. We did not think so on original consideration and see no reason to change our views. The further statement in the bill of exceptions that said' evidence could not be material evidence to discredit him as a witness, presents no ground for the rejection of the testimony. We are not apprised by the bill of exceptions as to whether the other charge against appellant was a felony or a misdemeanor. Our presumption is in favor of the correctness of the action of the trial court.

Finding no matter complained of in the motion which leads us to conclude that the disposition of the case -already made, was erroneous, the appellant’s motion for rehearing will be overruled.

Overruled.  