
    NOWELLS v. STATE.
    (No. 8973.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.
    Rehearing Denied June 17, 1925.)
    1. Criminal lav/ i&wkey;1092(l I) — Bill of exceptions not approved, by trial court not considered.
    A bill of exceptions, which trial court refused to approve on ground that matters did not occur as stated therein, cannot be considered.
    2. Criminal law <&wkey;865(l) — Tria! court’s remark that he was tired and was going home and would receive jury’s verdict on following Monday heid not to require reversal.
    Trial court’s remark to jury that he was tired and not well, and was going home to take a rest, and would receive verdict when he returned Monday morning held not to require reversal, where it was not shown that it induced jury to bring in verdict of conviction.
    3. Criminal law <&wkey;829(i) — Requested charges covered by court’s general charge properly refused.
    Defendant’s requested special charges, which were fully covered by court’s general charge, were properly refused.
    4. Criminal law <&wkey;l 167(2) — Failure to require state to elect on which count it would try defendant harmless, where oniy one count submitted to jury.
    Where court in its charge submitted only second count of indictment, thereby eliminating other count, no error resulted in failing to require state to elect on which count it would try defendant.
    5. Criminal lav/ <&wkey;l 120(4) — Bill of exceptions, complaining of conversation with defendant’s wife, not setting out conversation, presents nothing for review.
    Bill of exceptions, complaining of admission of testimony as to conversation of witness with defendant’s wife, not setting out conversation, presents nothing for review.
    6. Criminal law &wkey;>ll69(I) — Testimony that prosecuting witness was drunk and vomited not harmful to defendant.
    In prosecution for unlawfully possessing intoxicating liquor, admission of testimony that prosecuting witness was drunk and vomited in yard of jail, though immaterial, was not harmful to defendant.
    7. Witnesses <&wkey;287(3) — Re-examination to show .prosecuting witness took whisky to get • in with defendant heid not error, where cross-examination showed witness took such whis-ky with him.
    Where defendant’s counsel, on cross-examination, of prosecuting witness, showed that he took a pint of corn whisky with him, held that state was properly permitted to show on direct examination that his reason for taking whisky was to get in with defendant and see if he was selling whisky.
    8. Criminal law t&wkey;345 — That'evidence showed that sheriff sent prosecuting witness to investigate violation of prohibition law held not error.
    Mere fact that evidence showed on direct examination that sheriff sent prosecuting witness to- town where defendant was in business to investigate violations of Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.), was not error.
    9. Criminal law <&wkey;l 165(1) — Conviction not reversed in absence of' showing that defendant did not havd fair trial.
    Under Vernon’s Ann. Code'Or. Proe. 1916, art. 743, appellate court cannot reverse conviction in absence of record .showing that defendant has not had a fair trial.
    On Motion for Rehearing.
    10. intoxicating liquors <&wkey;233(l) — Testimony that others were found intoxicated on defendant’s premises heid properly admitted.
    Where truthfulness of prosecuting witness’ testimony, to the effect that at time he went into defendant’s place and bought alleged intoxicating liquor, two parties were drinking, was disputed, state was properly permitted to show by another witness, that somewhat later, such persons were found there intoxicated.
    11. Criminal law <&wkey;4!2(3) — Defendant’s statement that he intended to go to neighboring town and bring back whisky, and his explanation to witness of failure to get it, held • properly admitted.
    Where issue before jury was whether or not defendant possessed intoxicating liquor for purpose of sale, defendant’s statement that he intended to go to neighboring town and bring back several gallons of whisky, and that when he returned he explained his. failure to get such whisky, was properly admitted.
    Commissioners’ Decision.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Roy Nowells was convicted of unlawfully possessing intoxicating liquor, and he appeals.
    Affirmed.
    John Moyers, of Mineral Wells, and Simpson, Moore & Parker, of Port Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. '
   BAKER, J.

The appellánt was indicted, tried, and convicted, in the district court of Palo Pinto county, with unlawfully possessing intoxicating liquor, and his punishment assessed at one year’s confinemept in the penitentiary.

The appellant complains of the action of the trial court as set out in 16 bills of exception, which we think show no error of the trial court, and ’are without merit.

The first bill of exception the court refuses to approve,- and states as a reason therefor that the matters did not occur as stated.

In bill No. 2, there is complaint against the statement of the court to the jury to the effect that the court was tired and was not well, and was going home to take a rest, and that he would receive their verdict when he returned Monday morning. The jury returned a verdict in about. 40 minutes thereafter, and the appellant contends that this statement induced the jury to bring in a verdict of conviction. We are unable to agree to this contention, and see nothing in the bill that would indicate that the jury could infer from the statement of the court that he thought the defendant was guilty or that he thought he was not guilty, and, unless they could infer from the actions and statements of the court that the court thought him guilty, there could be no error in this particular. The record discloses that this occurred on Saturday. In Branch’s P. C. § 269, it is stated' “remarks of the judge to the jury will not operate to reverse the judgment in the absence of showing of probable harm to the accused.” Furlow v. State, 41 Tex. Cr. R. 12, 51 S. W. 938, and many authorities there cited.

There is complaint raised to the refusal of the court to give to the jury certain special charges .requested by the defendant in this case. The issues raised in these special charges were fully covered by the court’s general charge, and there was no error in refusing same.

In bill of exception No. 5 it is alleged that the court erred in not requiring the state to elect on which count in the indictment it would try the defendant. The court, in his charge to the jury, submitted only the second count, and thereby eliminated the other count, and there is no merit in this contention.

In bill of exception No. 6 it is contended that 'the court erred in permitting the testimony of the state’s witnesses to show that Mr. and Mrs. Hughes were in a state of intoxication at the time and place of discovering the wine in question, for which the defendant was convicted. We fail to see any error in this particular, as the appellant was charged with possessing and selling intoxicating liquor, and evidence showing the presence of witness on the ground and at the time and place in question intoxicated would be a circumstance for the jury to consider on the state’s theory of the case.

Bill of exception No. 7 complains of one of the state’s witnesses testifying to having a conversation with wife of defendant. Said bill is defective in that it does not set out what the conversation was.

Bill of exception No. 9 complains of the action- of the court in permitting state’s witnesses to testify that the prosecuting witness Massey was drunk and vomited in the yard of the jail.- Wevfail to see where this evidence threw any light in any way on the issues involved, and are unable to see in what way it was harmful to the defendant. The bill does not state any fact that we can see that shows that this testimony was injurious to defendant in any way.

In bills Nos. 11 and 12, and 16 the appellant complains of the action of the court in permitting the sheriff and prosecuting witness Massey to testify concerning the trade they had 'between themselves, relative to Massey -going to the home and place of defendant for the purpose of ascertaining whether or not he, the .defendant, was selling intoxicating liquor, and said prosecuting witness Massey getting a pint of whisky from the sheriff, and taking it along with him to be used by him to obtain said information, because all of said acts and conduct was hearsay and unknown to the defendant; As a rule such testimony is inadmissible and is reversible error where it hffects the defensive theory of the case, and not shown to have been known to the defendant. But after a careful consideration of these bills which show a conversation between the sheriff and prosecuting witness to the effect that he was sending said witness to the town of Dalton Oity where defendant was in business, and there see if the Dean Law was being violated; and appellant’s counsel on cross-examination showed said witness took a pint of corn whisky with him; then on redirect examination, the state showed by said witness, his reasons for taking the whisky was to get in with the defendant and see if they 'were selling whisky. We think this testimony was proper under the circumstances of this case. The mere fact that the evidence showed on direct examination that the sheriff sent said witness to investigate the violation of the Dean Law (Vernon’s Ann. Ben. Code Supp. 1922, art. 588¼ et seq.) was not error. Branch’s P. C. § 1930, states:

“Proof of movements of deceased not known to defendant may be admitted if it is a mere matter of inducement and does not affect a defensive theory.” Bozanno v. State. 60 Tex. Cr. R. 507, 132 S. W. 777, and other authorities.

In the Bozanno Case, supra, Judge Ramsey states the case in which the actions, declarations, and intentions of a decedent are held not to be admissible against the defendant who has no notice of them ,has always been limited to cases where the issue •of self-defense arose in the case, and where said actual movements of the deceased-could be held to be hostile in their character, and when such defendant had a right to act upon apparent hostile movements towards him which might, if the rule permitted it, be shown to be in fact innocent. It can have, we think, no application to such a case as this, and the objection is untenable.

It will be observed from the' authorities, supra, that the objections raised to this testimony would not apply to the instant case, and would only be applicable to cases, as stated by Judge Ramsey, where the question of self-defense was involved.

In the absence of the record showing that the defendant has not had a fair trial, this court will be unauthorized to reverse the case under article 743, Vernon’s Ann. Code Cr. Proc. 1916.

After a careful consideration of all the bills presented by- the appellant in the ease, and the entire record, we are of the opinion that there is no reversible error shown in the trial court, and the judgment should be and is hereby affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant complains of our disposition of his bill of exceptions No. 6, taken to the introduction by the state of testimony to the effect that, when the sheriff went to appellant’s place shortly after the commission of the alleged offense, he found a Mr. and Mrs. Hughes in the house drunk. The principle state witness, by whom the fact was sought to be established that appellant possessed the intoxicating liquor for purposes of sale, was one Massey, and we note that in his cross-examination it was drawn out of the witness Massey by appellant’s attorney that, at the time this witness was in appellant’s place and bought the alleged intoxicating liquor, Mr. and Mrs. Hughes were there drinking. The truthfulness of Massey’s testimony being disputed, and the fact of appellant’s possession on .said premises of any intoxicating liquor being also disputed, we are of opinion that the state was within its rights in showing that two of the parties seen at appellant’s house drinking, by witness Massey, were found there intoxicated a little later by another witness.

Fault is also found with our disposition of bill of exceptions No. 7. The complaint therein set forth'is that, appellant’s wife having denied that she had a conversation with a named witness, said witness when put upon the stand by the state in its rebuttal was permitted to testify that in fact appellant’s wife did have a conversation with him. Manifestly it would be impossible to decide whether this testimony was hurtful, or whether it was admissible, unless we had before us the subject-matter of the conversation. If it was germane and permissible it would be perfectly proper for the state to ask appellant’s wife if she had such conversation. The bill of exceptions, failing to set out any of said conversation, shows no error.

The issue before the jury being whether or not appellant possessed intoxicating liquor for the purpose of sale, we perceive no error in permitting the introduction of a conversation had with appellant about the time of the commission of the alleged offense, in which he declared his intention to go to a neighboring town and bring back several gallons of whisky; and also of the fact that when he returned from. said town he explained to witness his failure to get said whisky. This matter is complained of in bill of exceptions No. 12. We perceive nothing in bills Nos. 11, 14, and 16, which would be incompetent under the facts and issues before the court on the trial of this case, and believe said bilis of exception were properly disposed of in the original opinion.

The motion for rehearing will be overruled. 
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