
    McCLURE v. STATE.
    (No. 8939.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied June 17, 1925.)
    1. Criminal law <©=31092(14) — Bill of exceptions totally defective, where facts objected' to beiow not certified as true.
    Where the objection to evidence of officers was predicated on alleged failure to show that officers investigating had a warrant, a bill of exceptions thereto was fatally defective, where-no certificate was included showing that in fact they had no warrant.
    2. Criminal law <©=5394 — 'Testimony of officers,, investigating without v/arrant, admissible.
    In a prosecution for violating liquor law,, evidence of officers as to an investigation in defendant’s barn, leading to the’ discovery of liquor, was admissible, although the officers themselves had no warrant.
    
      3. Criminal law <§=1174(4) — Absence of juryman for about three minutes held harmless error.
    In a prosecution for violating liquor law, a juryman', unfamiliar with proceedings in felony cases, separated from the others for about three minutes, thus contravening Code Cr. Proc. 1911, art. 745, and, after asking an attorney how long they had, was seen by the sheriff to cross the street, get a cold drink, and return immediately, being met by the deputy in charge of the jury. Held, that the juror’s action could not have been harmful to accused, constituting ground for reversal.
    4. Criminal law <§=857(2) — Remark by juror before verdict regarding violators of the law held not improper.
    In prosecution for violating liquor law, a remark by a juror before verdict was agreed upon that the law ought to be enforced, and that violators of the law ought to have such penalties as would deter them from violating the law in time to come, was not an improper statement.
    5. Criminal law <©=>! 158(3) — Decision of trial court, where testimony conflicting, final.
    Where the testimony as to the jury having received other evidence after retirement was conflicting, the decision of the trial court thereon, in the absence of any abuse of discretion, will not be disturbed.
    On Motion for Rehearing.
    6. Criminal law <§=I086( 14) — Special plea of former conviction not considered, where no record of trial court’s action thereon.
    A special plea, setting up a former conviction and judgment pending as a bar to prosecution for violating liquor Jaw, will not be considered by the Court of Oriminal Appeals, where the records failed to disclose, either by bill of exceptions, or by entry of an order relating thereto, in the minutes of the trial court, any action upon the special plea.
    7. Criminal law <@=31144(4)— Presumption trial court acted correctly on special plea where record defective.
    Where a special plea, setting up a former conviction and judgment pending as a bar to prosecution for violating liquor law, was not properly before the Court of Criminal Appeals for tbeir consideration, assumption was that the action or .failure to act thereon by the trial court was correct.
    8. Criminal law <§=304(16) — 'Trial court can take judicial knowledge of contents of a former indictment. •
    Where a special plea of a former conviction and judgment pending is set up as a bar to a prosecution for violating liquor law, the former indictment having been before the trial court, it could therefore take judicial knowledge of its contents.
    9. Criminal law <§=1090(19)— Court will not look to motion for new trial for matter not supplied by the records.
    Where a special plea of a former conviction and judgment pending was set up as a bar to a prosecution for- violating liquor law, the Court of Appeals could not look to the motion for new trial in aid of the special plea,’ where the insufficiency of the records did not warrant its consideration..
    Appeal from District Court, Grayson Coun- ' ty; F. E: Wilcox, Judge.
    Jess McClure was convicted of possessing intoxicating liquor for the purpose o-f sale, and he appeals
    Judgment corrected as to sentence, and as so reformed affirmed.
    J. P. Cox, of Sherman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale. The evidence justified the verdict and judgment. The legal questions raised may be disposed of without burdening this opinion with a lengthy recital of the facts.

When the state proposed to prove by the officers that they found in defendant’s barn a concealed door in the bottom of the “horse trough,” which led into a cellar in which was found a complete still and several gallons of whisky, the objection was made that it had not been shown that the officers had a search warrant authorizing the investigation. It is nowhere certified in the bill that in fact they had no search warrant. The statement of an objection is not a certificate that the facts are true which form the basis of the objection. See section 209, Branch’s Annotated P. C. Even if the bill was not defective in the particular mentioned, the matter complained of would present no error. Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524; Harris v. State, 93 Tex. Cr. R. 349, 248 S. W. 54; Bell v. State, 94 Tex. Cr. R. 266, 250 S. W. 177; Burks v. State, 97 Tex. Cr. R. 113, 260 S. W. 181.

Defendant claimed, as reasons why he should be granted a new trial: (1) That the jury had discussed and considered the defendant’s failure to testify in violation of article 790, C. C. P.; (2) that there has been a separation of the jury, prohibited in felony cases by article 745, O. O. P.; (3) that the jury after retirement had received other evidence in contravention of subdivision 7, art. 837, C. C. P. The evidence produced upon hearing the motion for new trial negatived completely that there was any mention or reference whatever to the fact that defendant did not testify. Upon the issue of separation, the evidence showed that one. of the jurors (Schotts) had never served on a jury in a felony case, but had frequently been on juries in civil cases, and was unaware of a different rule obtaining relative to separation of juries in the two classes of cases. As the jury passed from the courtroom on the way to the jury room, Schotts left them, went through the hall, downstairs, and across the street to a drug store for the purpose of getting a cold drink. In the hall he, asked J. D. Buster, an attorney, how long they would have, and was told about 5 minutes. Buster saw the juror speak to no one else in the hall, and saw him go down the stairway. Thinking that he was one of the jurors, and noticing that he was alone, Buster stepped into the sheriff’s office and notified that official. The sheriff looked immediately'out of his office, saw Schotts hurrying across the street to the drug store, saw him stop at the cold drink stand, get a drink, and come directly back to the courthouse, where he was met by the deputy in charge of the jury, who had discovered his absence. The juror was not away from the other jurors longer than 3 minutes. He spoke to no one save Buster. These facts were established by witnesses other than the juror himself. In Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113, this court, in commenting on a similar incident, said:

“The purpose of the statute [article 745, O. O. PJ is to preserve the purity of the verdict, and where it is shown that a temporary separation of one of the jurors from his fellows did not and could not have affected the verdict or impartiality of the trial a reversal is not required nor authorized.”

Many authorities are collated in Watson’s Case sustaining it. The burden was on the state to show that the separation could not have been harmful. This burden was discharged in the present instance.

Upon the matter of the jury receiving other evidence after their retirement, defendant alleged that, before the verdict was agreed upon the juror Echols stated to the other jurors that “defendant was an old fimer in the business, and a chronic or hardened violator of the law; that he had been indicted many times for violations of the prohibition law, and had been tried but had never been convicted.” Upon the issue raised by this averment the evidence was conflicting. The foreman of the jury testified that he heard Echols say the law ought to be enforced, and that violators of the law ought to have such penalties as would deter them from violating the law in time to come. Echols admits making this general statement. We observe no impropriety in it. He denies making at any time the statement attributed to him by defendant. The foreman testified that he heard Echols say substantially what the defendant complains about, and was of the opinion it occurred before an agreement on the penalty was reached, but frankly states he may be mistaken as to when he heard it, and that it may have been after the verdict was agreed upon. The juror, whp seems to have had the argument with Echols as to what punishment should be assessed, swears positively that Echols said nothing about defendant’s previous record. Another juror says the first he heard of anything of the kind was after they had returned the verdict, had been discharged, and while they were being paid off. Other jurors disclaimed hearing such statement made by Echols or any one elsq in the jury room. This is a sufficient statement to show that the evidence was in conflict, and presented a disputed issue, which was determined in favor of the state. There is no showing of an abuse of judicial discretion in respect to the matter, in the absence of which the finding of the presiding judge will not be disturbed. Sanchez v. State, 90 Tex. Cr. R. 518, 236 S. W 734; Manley v. State, 92 Tex. Cr. R. 537, 244 S. W. 533, and cases therein cited.

In passing sentence upon defendant, the court overlooked the indeterminate sentence law. The sentence will be corrected to read that defendant be confined in the penitentiary not less than one year nor more than two years.

As so reformed, the judgment is affirmed.

On Motion for Rehearing.

Only two bills of exception are found in the record — one complains of search without warrant; the other, of misconduct of the ■jury. Both were considered in the original opinion, and appellant does not question that proper disposition was made of them.

Complaint is made, however, that we failed to discuss a special plea interposed by appellant, in which he sought to raise the question of former conviction and a request for postponement. The number of this case in the court below was No. 16827. The special plea avers that appellant had been tried in No. 16828, and that the jury had returned a verdict of guilty in said cause; that the judgment was pending against him subject to his right of appeal; that the offense of which he had been convicted p in No. 16828' was the same offense and transaction for which he was about to be tried in the present case. He .avers that a copy of the indictment in No. 16828 is attached to the plea, but none appears in the record before us. After reciting the foregoing facts, he pleads said former conviction in bar of a prosecution in the present case, and asks the court to postpone the trial until final disposition is made of cause No. 16828. The record fails to show, either by bill of exception, or by entry of order relating thereto upon the court minutes, any action upon said special plea. The indictment in cause No. 16828 was before the court below, and he could therefore take judicial knowledge of its contents. It is not before this court in a manner to be considered; hence we must assume that the action or failure to act upon the special plea was correct.

It appears from the averments in the motion for new trial that the offense charged in cause No. 16828 was for manufacturing intoxicating liquor, but we cannot look to the motion for new trial in aid of the special plea.

We further note that, in approving one of the bills of exception heretofore referred to, the court says:

“ * * * The case against this defendant, referred to by witnesses as having been tried and same evidence used as on this trial, is now pending in this court; granted the defendant a new trial.”

There being no bill complaining of the action or failure to act upon the special plea, the matter is not properly before us for review.

The motion for rehearing is overruled. 
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