
    HILL v. STATE.
    (No. 7949.)
    (Court of Criminal Appeals of Texas.
    Dec 12, 1923.
    Rehearing Denied Jan. 16, 1924.)
    1. Criminal is<w <&wkey;365(i) — That defendant had pistol admissible as res gestae.
    In a prosecution for transporting equipment for making liquor, testimony that defendant had a pistol on his person at the time he was carrying .the equipment for which he was being prosecuted, held admissible as part of the res gestee.
    2. Criminal law &wkey;>472 — Sufficiency of equipment for manufacturing of liquor admissible in proseoution for transportation.
    In prosecution for transporting equipment for making liquor, witnesses who had examined many stills were properly permitted to testify that the equipment found in the possession of the defendant and his companion was sufficient for the manufacture of liquor.
    3. Intoxicating liquors <&wkey;209 — Indictment charging transportation of equipment need not allege purpose to make liquor.
    In prosecution for transporting equipment for making liquor, the indictment need not allege that defendant was transporting the equipment for the purpose of engaging in the manufacture of liquor or for the purpose of making liquor.
    4. intoxicating liquors &wkey;?233(2)— Finding of mash on premises of party engaged in transportation of equipment held pertinent.
    In a prosecution for transporting equipment for making liquor, the finding of mash on the premises of one of the parties engaged in transportation of equipment in a condition ready to be converted into liquor held a pertinent circumstance.
    5. Criminal law <&wkey;>478(l) — That mash could be used to make liquor admissible in prosecution for transporting equipment.
    In a prosecution for transporting equipment for making liquor, witnesses, who had examined many stills, and! had seen much mash, were properly permitted to testify that the mash found on the premises of one of the I>ersons engaged in the transportation of the equipment was such mash as could be used in the manufacture of liquor.
    6. Criminal law <&wkey;683(l) — Statement by defendant when arrested admissible on rebuttal.
    In prosecution for transporting equipment for making liquor, in which the testimony showed that, when first arrested, defendant claimed that a white man had given defendant the equipment to carry for him, the state was properly permitted to prove in rebuttal that, when the officer told defendant that the officer was willing to go with defendant down to where the defendant claimed the white man had given him the equipment, the defendant said it was no white man.
    7. Criminal law &wkey;>938(4)— Denial of new trial for newly discovered evidence of witnesses who had testified not error.
    Denial of new trial, on the ground of newly discovered! evidence, consisting of testimony which defendant expected to obtain from witnesses who had already testified, held not error.
    On Motion for Rehearing.
    8. Criminal law <&wkey;'l 063 (2) — objection to indictment in amended motion for new trial filed more than 10 days after conviction not considered.
    Under Yernon’s Ann. Code Or. Proc. 1916, art. 848, requiring a motion in arrest of judgment to be filed within 2 days after conviction, an objection to the indictment in amended motion for new trial filed more than 10 days after conviction, assigning no reason why a proper motion in arrest of judgment had not been sooner filed, will not be considered.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    
      Aaron Hill waá convicted of transporting equipment for making liquor, and he' appeals.
    Affirmed.
    Johnson & Waters, of New Boston, Tex., for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover G. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Bowie county of transporting equipment for making liquor, and his punishment fixed at 1 year in the penitentiary.

The statement of facts is short, and from it we gather that on the occasion in question appellant and a negro named Johnson were found carrying between the two of them a copper pot, a monkey wrench, a sixshooter, a keg with a'worm in it, and some jugs. The two men were traveling together. There was testimony that the outfit was sufficient to make liquor. Following the arrest, a search of Johnson’s place revealed a quantity of mash, apparently in a condition to be converted into whisky.

Appellant excepted to the testimony of the fact that he had on his person a pistol. Many cases are cited in Mr. Branch’s Annotated P. 0. § 166, relative to the admissibility of testimony of extraneous offenses which are res gestas of the offense on trial. Appellant was carrying part of the equipment for making liquor at the time he was found carrying also the pistol. We think both facts admissible in developing the res gestae of the offense charged herein. It was permissible to ask witnesses if the equipment found in possession of the two men was sufficient to manufacture liquor.

We think there was nothing in appellant’s contention that the indictment should have alleged that appellant was transporting equipment for the purpose of engaging in the manufacture of liquor or for the purpose of making liquor. We regard the finding of mash on the premises of one of the parties engaged in the transportation of the equipment as a pertinent circumstance, as was also the fact that said mash was in a condition ready to be converted into liquor. We would not deem it error for the state to have been permitted to ask a witness if the equipment found in possession of the appellant and his companion was sufficient to make liquor with. The expressions of witnesses who had examined many stills and seen much mash that the equipment found in possession of appellant and his companion was sufficient to manufacture liquor with, and that the mash found on the premises of one of them was such mash as could he used in the manufacture of liquor, was not erroneous.

An objection that the state was allowed to prove that, after the arrest of appellant, when the officer told him that he was willing to go with him down to where appellant claimed a white man ¡had given him the equipment, and catch him, appellant said it was no white man, which objection was that this was not in rebuttal, does not seem to us to possess merit, there being other testimony showing that when first arrested appellant claimed that a white man had given him the equipment to carry for him.

Appellant sought a new trial on the ground of newly discovered evidence; said evidence consisting of testimony which he expected to obtain from witnesses who had already testified in this case. In Williams v. State (Tex. Cr. App.) 34 S. .W. 271, this court held that testimony of parties, who had already testified on the trial of the accused, could not be considered as newly discovered evidence. /

What we have just said substantially disposes of all the contentions made by appellant, and, being unable to agree with any of them, an affirmance will be ordered.

On Motion for Rehearing.

Appellant made no motion to quash the indictment herein. After conviction, he made a motion for new trial on February 27th, couched in the most general terms, and making no attack upon the indictment at all. On March 9th following appellant filed an amended motion for new trial, at the end of which appears a complaint that the allegation in the indictment referred to “a pot or boiler,” and that this is an alternative pleading. The motion for rehearing herein is based altogether on the proposition that the court erred in overruling a motion in arrest of judgment, based on the ground of said alternative pleading referred to. We do not think the matter complained of constitutes proper ground for objection to the indictment. Thomas v. State, 18 Tex. App. 213, which expressly differentiates two of the eases cited by appellant. Hofheintz v. State, 45 Tex. Cr. R. 117, 74 S. W. 310; Figueroa v. State, 71 Tex. Cr. R. 371, 159 S. W. 1188; White v. State, 70 Tex. Cr. R. 285, 157 S. W. 152. The statute requires a motion in arrest of judgment to be filed within 2 days after conviction. Article 848, Vernon’s O. O. P. The first attack upon the indictment was made ps part of an amended motion for new trial filed more than 10 days after conviction, and assigning no reason why a proper motion in arrest of judgment had not been sooner filed. Manifestly this came too late.

The motion for rehearing will be overruled. 
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