
    CLAY v. STATE.
    (No. 6705.)
    (Court of Criminal Appeals of Texas.
    Feb. 22, 1922.
    Rehearing Denied March 22, 1922.)
    1. Indictment and information <&wkey;!4 — Copy of indictment substituted for one lost, on written statement that it is same as one lost.
    Vernon’s Ann. Code Cr. Proc. 1916, art. 482, provides that copy of indictment may be substituted “upon written statement of the district or county attorney that it is substantially the same as that which has been lost,” nothing more than required by statute is necessary as a predicate for substitution, but the accused may contest the facts stated.
    2. Criminal law <&wkey;1032(2) — Where no issue as to substituted indictment was raised at trial, it is not available on appeal.
    Where the accused did not contest the question of substitution of an indictment for one lost when it was before the court, the matter of its correctness was not available on appeal.
    3. Criminal law &wkey;763, 764(8) — Requested charge held to be on the weight of evidence.
    In a prosecution for manufacturing liquor and possessing equipment for manufacture, where the count for possessing equipment was abandoned, there was no error in refusing a requested charge that defendant should be acquitted unless the complete equipment necessary for manufacture was found, as it would have been on the weight of the testimony; witnesses having testified that defendant did manufacture liquor with such apparatus.
    On Motion for' Rehearing.
    4. Criminal law <&wkey;>ll33 — Objections first raised on motion for rehearing not considered.
    Objections, raised for the first time on motion for rehearing, as to manner and form of substitution for a lost indictment, will not be considered.
    5. Criminal law <&wkey;l030(1) — Objections not raised below not considered on appeal.
    Objections to such matters of procedure as can be cured by the trial court, when made at a proper time and when the curing of such alleged defects are within the power and jurisdiction of the trial court, if not made then, will not be considered on appeal.
    Appeal from. District Court, San Augustine County; Y. H. Stark, Judge.
    Will Clay was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    E. T. Anderson and John F. McLaurin, both of San Augustine, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of San Augustine county of manufacturing intoxicating liquor, and his punishment fixed at 1% years in the penitentiary. There are no matters of interest arising from the facts, which appear amply sufficient to support the judgment.

The indictment was substituted. In the record appears the written motion of the state’s attorney, asserting the loss of the original indictment, also that a substantial copy of said lost instrument was therewith presented, and it was prayed that an order be made directing the filing and substitution of said copy for the lost indictment. The court made an order granting said motion. This was before appellant had pleaded to the indictment. Objection to this proceeding is presented by bill of exceptions No, 1, same being there stated as follows:

“Now comes Will Clay, the defendant herein, and objects to being forced into trial of this cause under a substituted indictment, for the reason that this indictment is not substituted from any evidence- obtained from the records of the grand jury, or the minutes thereof, but, on the contrary, is substituted from an indictment in a different cause and against an entirely different person, .and for the further reason that' the defendant has never been notified, in any manner, of the substitution of this indictment until after the state has annouced ready for trial, and before the defendant has pleaded to the indictment.”

It thus appears that the two grounds of objection were that proper evidence was not resorted to, to ascertain what should be the contents of the substituted indictment, and that notice should have been given appellant of the intention to substitute, before the state announced ready for trial.

Article 482, Vernon’s C. C. P., directs how such substitution may be made. Same specifically provides that it may be made “upon the written statement of the district or county attorney that it is substantially the same as that which has been lost,” etc. Such was the statement of the district attorney in the instant case. No authority is cited by appellant, and we know of none, requiring more of the state as a predicate for such substitution than is stated in the statute.' That the accused may contest the facts stated is unquestionable (Bowers v. State, 45 Tex. Cr. R. 185, 75 S. W. 29), and lie may show that the offered instrument is in fact not a substantial copy of that which is lost, mutilated, etc. No effort to do this was made in the instant case. An objection unsupported will not suffice.

Nor are we led to see or believe that any injury was done to appellant by reason of not having been sooner notified of the state’s intention to so substitute. We might imagine situations in which it could he shown that opportunity to contest the offered substitution was denied, but no such facts are shown in the instant case. The fact that the copy of the lost indictment which was substituted and used upon the trial herein was a true and correct copy of the original indictment was not contested in any manner when the question of substitution was before the court, and the matter of such correctness could have been properly made an issue. Appellant is in no position before this court to make a complaint, which should have been made at the proper time and place and supported in some way.

By his bill of exceptions No. 3 complaint is made that the trial court refused to give to the jury special charge No. 1. which is as follows:

“Gentlemen of the Jury, you are further instructed, as part of the law applicable in this case, that even though you believe from the evidence that the equipment found by the sheriff, H. J. Wilkinson, could be used as a part of such equipment in manufacturing intoxicating liquor, you are further instructed that, unless there were found coil, pipe, and other equipment necessary in the manufacture of intoxicating liquors, you will find the defendant not guilty.”

We are unable to perceive any error on the part of the lower court in refusing to give this charge. While the indictment contained two counts, one of which charged appellant with manufacturing intoxicating liquor, and the other with possessing equipment for the manufacture of same, the latter count was abandoned upon the trial, and the jury were instructed to consider the question of appellant’s guilt alone of the offense charged in the first count. It appears from the record' that on the premises where appellant was staying was found a quantity of intoxicating liquor, and also the equipment with which same could be xnade, save for the fact that a pipe, which seemed to be a necessary part of said apparatus, was missing. It was in testimony, by the man with whom appellant was staying, that the latter manufactured said liquor so found with said apparatus. Substantially the same facts were testified to by the wife of the man with whom appellant was staying, Manifestly, in the face of such testimony, the special charge referred to above would have been upon the weight of the testimony, and clearly erroneous.

This disposes of the contentions made by appellant on this appeal, and, being unable to agree that same present any error, an af-firmance is ordered.

On Motion for Rehearing.

We quoted and discussed in our original opinion appellant’s only objection to the substitution of the lost indictment herein, as made by him on the trial of this case. We cannot consider objections, now raised for the first time, relating to the manner and form of such substitution. Objections to such matters of procedure as can be cured by the trial court, when made at a proper time and when the curing of such alleged defects are within the power and jurisdiction of such trial court, if not made then, will not be considered on appeal. In his brief and presentation of. this case to us originally, appellant urged that the substitution of the lost indictment was illegal, because made prior to his pleading to the indictment. We did not discuss this matter, because it was not raised in the court below; but this question is settled adversely to appellant in Withers v. State, 21 Tex. App. 210, 17 S. W. 725, the soundness of which opinion seems not to have been questioned since its rendition.

The motion for rehearing will be overruled. 
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