
    FRENCH v. STATE.
    (No. 7852.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1924.
    Rehearing Denied March 18, 1925.)
    1. Criminal law <@=>1092(12) — Proving up only by two bystanders held insufficient.
    Proving up of bills of exception only by two bystanders held insufficient.
    On Motion for Rehearing.
    2. Indictment and information <@=>125(31) — Count charging keeping premises for purpose of manufacturing and storing held.not duplicitous.
    Count of indictment charging keeping premises or permitting premises to be kept for purpose of manufacturing and storing intoxicating liquors held not duplicitous, gist of offense being keeping of premises for unlawful purpose.
    3. Criminal law <@=>1091 (15), 1119(4) — Refusal to charge to disregard improper argument not considered, in absence of showing argument in fact made.
    Bill of exceptions to refusal to charge jury to disregard state’s improper argument will not be considered, if bill contains no showing of fact that argument was in fact made, other than statement that it was objected to, and bill cannot be verified by reference to allegations of other bills.
    4. Intoxicating liquors <@=>139 — Keeping .premises for storing liquor need not, in order to be penal, be for purposes of sale.
    Statute defining offense of keeping, and permitting to be kept, premises for purpose of storing intoxicating liquor, does not require that storing, in order to be penal, be for purposes of sale. .
    5. Jury <@=>33(l) — Law requiring use of jury wheels in certain counties held not to restrict selection or disfranchise qualified jurors.
    Rev. St. arts. 5152, 5153, relative to use of jury wheels in certain counties, held not to restrict selection or disfranchise qualified jurors.
    
      Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Ed Erencli was convicted of keeping and permitting to be kept premises for the purpose of manufacturing and storing intoxicating liquor, and he appeals.
    Affirmed.
    James E. Hair, of San Antonio, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Travis county of keeping and permitting to be kept premises for the purpose of manufacturing and storing intoxicating liquor, and his punishment fixed at two years in the penitentiary.

There is no brief on file for appellant, notwithstanding which we have gone carefully through all the numerous bills of exception and complaints which we find in the record.

Appellant asked for a postponement of the trial until motions for new trials in cases against his brother could be heard and granted. The refusal was no error. It is not shown that upon a hearing the motions were granted, and it is reasonable to conclude they were not. The exceptions to the court’s charge do not show to have been presented at the proper time and are further believed by us to be without merit. Special charges Nos. 10 and 11 were given. We have examined the other charges asked and find them either covered by the main charge or not supported by testimony, and we do not believe error appears in the refusal of any of them.

We have examined and considered each of the numerous bills of exception and are of opinion that a discussion of none of them would be an aid to the profession nor clarify any point of practice. None of them manifest error. Several bills are attempted to be proven by bystanders. Each of said bills is proved up only by two bystanders, which is not sufficient. Osborne v. State (Tex. Cr. App.) 56 S. W. 54. Said bills are further defective in not sufficiently showing that the trial court refused to approve them. Landrum v. State, 37 Tex. Cr. R. 666, 40 S. W. 737; Johnson v. State, 42 Tex. Cr. R. 298, 59 S. W. 900.

The court heard evidence on the presentation of the motion for new trial sought because of misconduct of the jury, and his action in refusing said motion presents no abuse of the discretion confided to him in such matters. We do not think the evidence need be set out. It amply showed both the manufacture and storage of intoxicating liquor on premises controlled by appellant and his brother.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant insists that the indictment was defective and should have been quashed in response to his motion because duplicitous; that is, it charged two separate and distinct offenses in one count, viz., the unlawful keeping of his premises for the purpose of storing liquor, and also the unlawful keeping of said premises for the purpose of manufacturing liquor. The indictment charged appellant with keeping his premises to be used for the purpose of storing and manufacturing liquor. The gist of the offense is the keeping of his premises for an unlawful purpose, as said by this court in Wimberley v. State, 95 Tex. Cr. R. 102, 252 S. W. 787. The principle involved is altogether different from that in Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515, and Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367. It is as though one charged with an assault with a knife, a bludgeon, and a pistol, should object to the indictment because it set out different means by which the offense might have been committed, in the same count. In section 508 of Mr. Branch’s Annotated P. C., many authorities are cited in support of the proposition that where- several ways by which an offense may be committed are set forth in the same statute, and they are embraced in the same general definition and are punishable in the same manner and to the same extent, and are not repugnant to each other, they may be charged conjunctively in the same count.

A bill of exceptions to the refusal to charge the jury not 'to consider certain argument of state’s attorney, which contains no showing of the fact that such argument was in fact, made, other than the statement that it was objected to, brings nothing before us. We are not permitted to verify the allegations of one bill by reference to those of another. Banks v. State, 62 Tex. Cr. R. 552, 138 S. W. 406.

We find nothing in the statute defining the offense charged against appellant which requires allegation or proof that the storing forbidden, in order to be penal, must be for “purposes of sale.”

Nor are we able to agree that the law requiring the use of jury wheels in certain counties restricts the selection of qualified jurors or disfranchises them. Article 5152 of the chapter of our Civil Statutes regarding the jury wheel specifically requires that the officers charged with the duty of filling said wheel shall write the names of “all men who are known to be qualified jurors under the law” in such county on separate cards; article 5153 of said chapter commands that all of. said cards shall be placed in the wheel. We are unable to comprehend how this could be in any sense restrictive or disfranchising. All qualified jurors cannot sit in any given case. There must be provided means of selection. -That under discussion takes the entire body of the jurors of the county and seems to us to provide a fair means of selecting from them juries for the week and venires.

Being unable to agree with any of the contentions of appellant, his motion for rehearing will be overruled. 
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