
    ATWOOD v. STATE.
    (No. 7839.)
    (Court of Criminal Appeals of Texas.
    Jan. 2, 1924.)
    1. Intoxicating liquors &wkey;>236(6V2) — Evidence held to support conviction of possessing for sale.
    In prosecution for possessing intoxicating liquors for sale, evidence of receptacle in floor or court of building adjacent to one run by defendant, arrangement of plank therein, with concealed springs and loelc, and defendant’s connection with its construction, and purchases of liquor prior to finding of hidden store, held to sustain conviction.
    2. intoxicating liquors <&wkey;239(5) — Charge that whisky is intoxicating liquor not error.
    In prosecution for possessing intoxicating liquor for sale, it was not error to instruct that whisky is an intoxicating liquor.
    3. Intoxicating liquors &wkey;>239(7) — Charge on control and management of building held properly refused.
    In prosecution for possessing intoxicating liquor for sale, the issue as to control and management of a garage would not be decisive of control of receptacle in the floor where stored liquor was found, and it was proper to refuse instruction to acquit, if the garage was controlled and managed by persons other than defendant.
    4. Criminal law &wkey;>l 172(7) — Charge on possessing held favorable to defendant.
    In prosecution for possessing intoxicating liquor for sale, charge that the party possessing it must have personal relation to it, that is,' must have actual personal care, control, and management, was favorable to defendant.
    5. Intoxicating liquors -&wkey;>239 (7) — -Refusal of charge on defendant’s control of building and knowledge of stored liquor held proper.
    In prosecution for possessing intoxicating liquors for sale, where liquors were found in hidden receptacle in floor of building adjacent to defendant, and evidence connected defendant with construction of such receptacle, it was not error to refuse charge to acquit, if jury did not believe defendant had charge of the building where liquor was found, and by reason thereof knew the liquor was under it.
    6. Intoxicating liquors <&wkey;>239(3) — Charge on effect of co-operation in possession held proper.
    Where evidence in prosecution for possessing liquor raised question of defendant and another acting together in the control and management of premises, it was proper to submit, in charge, the proposition that defendant would be guilty if he, either alone or with some other person, possessed the liquor for sale.
    7. Jury <&wkey;66 (4) — Drawing jury from wheel in rented room not ground for motion to quash.
    Drawing jury from wheel in room, rented for assessor’s use, on order of commissioner’s court, across the street from the courthouse, held not ground for quashing panel.
    8. Jury i&wkey;82 (2) — Substantial compliance with statute in filling wheel and drav/ing jury sufficient.
    Substantial compliance with statute requiring filling of wheel and drawing of jury at the courthouse is all that is required.
    9. Jury&wkey;>63 — Omitting qualified electors,from list held ground for reversal.
    In view of requirement of Vernon’s Complete St. 1920, or Vemon’s Sayles’ Ann. Civ. St. 1914, arts. 5151-5158, as to placing all qualified jurors on jury list, where officers used poll tax list in selecting names for jury wheel, and there were other qualified electors on tax lists, aside from the poll list, and certain classes of citizens were excluded intentionally, such action held erroneous, and of such materiality as to require reversal.
    10. Criminal law <§=>371(10) — Testimony of sales admissible in prosecution for possessing for sale.
    In prosecution for possessing intoxicating liquor for sale, testimony of sales by defendant at various times, from near to the date of the offense, extending back several months, was properly admitted, when limited to the question whether the liquor involved was intended for sale.
    11. Jury <§=>82(2) — Failure to make return conform to statute in summoning jury not ground for reversal.
    Failure of sheriff to make return conform to Rev. St. art. 5164, in summoning jury in prosecution for possessing liquor for sale would not require reversal, unless in some way injury was shown.
    12. Criminal law <§=>1141 (2) — Burden on one making objection to bring himself within ground of it.
    Burden is on him, who makes an objection, to bring himself, by sufficient showing, within ground of it.
    13. Criminal law <§=o374 — That witnesses could not fix exact time of purchases held immaterial.
    In prosecution for possessing intoxicating liquors for sale, the fact that witnesses could not fix exact time of purchases prior to date of raid did not affect admissibility.
    14. Criminal law <§=>374 — Proof of previous sales by more than‘three witnesses not objectionable.
    In prosecution for possession of intoxicating liquors for sale, that state proved sales of liquor by defendant by more than three witnesses was not objectionable.
    15. Criminal law <&wkey;86l — Jurors smelling bottles of liquor held not objectionable.'
    In prosecution for possession of intoxicating liquors for sale, after introduction in evidence of two bottles of whisky alleged to have been found in defendant’s possession, permitting jury to smell the bottles was not objectionable, in absence of proof that jury were influenced thereby or relied on their judgment in determining intoxicating character.
    
      16. Criminal law <&wkey;4092(6) — Bill of exception as to testimony in motion for new trial not filed in term time not considered.
    Bills of exceptions containing narration of testimony in support of motion for new trial will not be considered when not filed during term time. ■
    Appeal from District Court, Eastland County; George D. Davenport, Judge.
    Harry Atwood was convicted of possessing intoxicating liquors for purpose of sale, and lie appeals.
    Reversed and remanded.
    Burkett, Orr & McCarty, of Eastland, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Eastland county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at two years in the penitentiary.

We have carefully examined 'the statement of facts, and find ourselves in disagreement with appellant’s contention that the evidence is not sufficient to support the verdict. Briefly, the facts show that a carefully prepared receptacle under the floor of a court or building adjacent to that unquestionably run by appellant was found to contain 14 bottles of bottled in bond whisky. A heavy plank Jn the floor had been carefully arranged so that it moved upon concealed hinges. A Tale lock had been set into said plank, the location of which was artfully hidden under an ordinary soda water bottle stopper. This metal stopper upon being removed revealed the Tale lock, unlocking .which the plank could be raised upon its hinges and the place of the storage of the liquor thus revealed. ‘ The proof showed that the building was moved from another place to where it stood by appellant, or at most by appellant and one Barnes, one making the-arrangement to move it, and the other paying for the worlt The men who put the hinges in the plank and the lock therein, thus making the necessary arrangement to the successful working of the concealed place for storing the liquor, testified that they did this work .at the request "and under the supervision of appellant. A number of men testified that, at various times anterior to the finding of the hidden store, they had bought liquor from the appellant. Nearly all of the witnesses who testified about the matter said that the liquor found by means of the raid in question was whisky. The learned trial judge instructed the jury that whisky was am intoxicating liquor. We think no error was thereby committed. We deem it unnecessary to further express our views that appellant’s bill of exceptions No. 1, complaining of the refusal of a peremptory instruction in his favor, presents no error.

Appellant’s bill of exceptions No. 4 complains of the refusal’of a special charge in substance that, if the jury believe that the garage in question was controlled and managed by any person other than the defendant, or if they had a reasonable doubt of such fact, they would return a verdict of not ' guilty. The refusal of this was proper. Appellant was not charged with keeping premises for the purpose of storing liquor, etc., and the issue as to the control and management of the garage in question would not 'be decisive of the question before this jury. The garage, as such, might be controlled and managed by Oleve Barnes, and at the same time the liquor stored under a particular part of the floor be in the possession and com trol of this appellant. The court below instructed the jury that, in order to possess liquor, as that term was used in the charge, the party possessing must have a personal relation to it; that is, must have actual, personal care, control, and management of it. This was favorable to the appellant.

Appellant complains of the refusal of a special charge, in substance that the jury must believe beyond a reasonable doubt that he had charge of the garage in question under which the alleged intoxicating liquor was found, and by reason thereof knew that said liquor was under said garage, and that, if the jury had a doubt as to either of those conditions, they would resolve same in favor of the defendant, and .acquit him. We do not think either proposition correct. As we have above indicated, it was not necessary for appellant to have charge of the garage in question in order to be guilty, nor was it necessary that, by reason of having charge of the garage, he knew that the liquor was under the floor in order to arrive at the same conclusion.

Appellant presented various exceptions to the court’s charge, which we have carefully examined, and with no contention in which are we in accord. Complaint was made of the fourth paragraph of the court’s charge, because it submitted the proposition that appellant would be guilty if he either alone or in conjunction with some other person possessed the liquor in question for the purpose of sale. Such charge upon appropriate facts would be" entirely correct. The evidence seems to raise the proposition of the acting together in the control and management of the premises of appellant and another, and in our opinion none of the exceptions to the charge were sound.

Appellant filed a motion to quash the jury panel, based in part upon the proposition that the jury wheel was not filled from the tax lists of the qualified voters of the county, and in part on the fact that the action of the authorities in filling the wheel and drawing the jury did not take place at the courthouse, as required by statute. Evidence was heard by tlie trial court in support of appellant’s motion to quash. It was shown that, because of lack of room in the •courthouse proper, the county commissioners had rented rooms across the street for the use of the collector and assessor of the county, and that the filling of the wheel and the drawing of the jury took place in the assessor’s office. The evidence shows that an order had been made by the commissioners’ court, including these outside offices within the courthouse. Aside from the sufficiency of this order to meet this objection, we would not be inclined to sustain appellant’s contention in this regard. Substantial compliance with the statute is all that is required, and while the law in question requires the filling of the jury wheel, etc., to take place at the courthouse, we would not understand this to be literally binding in every case. If so, there would be cases in which no juries could be drawn or obtained because of the lack of courthouses. Appellant’s contention would prevent the securing of juries in counties whose courthouses had been destroyed or had become unsafe, or which were without such buildings. In our opinion, a building or office rented for the purpose of official use and under the control of the county authorities would be such place as is contemplated by the statute.

The evidence in support of the other part of appellant’s motion presents a more serious question. The provisions of chapter 5, tit. 75, Yernon’s Complete Texas Statutes 1920, or Yernon’s Sayles’ Ann. Civ. St. 1914, lay down plain rules regarding those persons who shall be drawn for jury service in counties containing the required city population. The language of the statute (article 5151) is—

“shall select from the list of qualified jurors of such county as shown by the tax lists in the tax assessor's office for the current year, the jurors for service in the district and county • courts of such county for the ensuing year in the manner hereinafter provided.”

Article 5152 of said chapter specifically says that—

“The aforesaid officers shall write the names of all men who are known to be qualified jurors under the law, * * * on separate cards,” etc.

A subsequent article (5158) provides that the cards containing “the aforesaid names” shall be deposited in the jury wheel, etc. In Vasquez v. State, 76 Tex. Cr. R. 37, 172 S. W. 227, appears the statement that, if it is mads to appear from the record that the officers had intentionally omitted to place in the wheel the name of any person known by them to be a qualified juror, it would be ground to quash the venire, even though the record did not go so far as to show injury to the appellant. It was contended in that case that there were persons in the county of the trial who were qualified jurors whose names were not put into the wheel. This court, further said:

“The officers named would have no authority or right to refuse to place in the wheel the name of any person known by them to be a qualified juror. But in this case, in the bill, it is not claimed that the name of any person known at that time to be a qualified juror was intentionally left off the list of those placed in the jury wheel. The information as to other qualified jurors may have been received by the officers after the jury list .was drawn.” *

It would thus appear that the court intended to commit itself to the doctrine that names of qualified jurors which were unintentionally omitted or left out by inadvertence from the wheel, even though shown, would not necessitate the quashing of the panel. Further in that opinion we find the following:

“All the law requires is that the officers named shall place in the jury wheel the names of all persons known to them at that time to be qualified jurors in the county. If they, through inadvertence or oversight, or through lack of knowledge, should fail to place in the wheel the names of persons who are qualified jurors, in the absence of injury shown to appellant, this would not present ground to quash the venire.”

Examining the testimony offered in support of this part of appellant’s motion, we observe without quoting from the testimony of the various witnesses that it was shown that the officers used the poll tax list in selecting the names for the jury wheel, and that there were other qualified jurors shown upon the tax list in the assessor’s office aside from the poll list. There is no dispute of the fact that the wheel was filled from the poll tax list only. Manifestly this would not include qualified jurors, who, by. reason of their ages, were exempted from the payment of poll taxes, and it is admitted that no effort was made to put , the names of any of those exempted from the payment of poll taxes into the jury wheel. From the testimony of the deputy sheriff, who called off the names from the poll tax list, we further observe that he says they marked off the road overseers, excluded lawyers, doctors,' and other classes of citizens. This witness further states that they did not put the name of any fireman into the wheel. Another witness testified, “There were.some classes of citizens excluded and not placed in the jury wheel.” It would thus appear that the action of the officers was in direct violation of the statute. In Gunn v. State, 90 Tex. Cr. R. 209, 234 S. W. 399, we held .actions on the part of the county officials such as appear from the record in this case to be plain violations of the statutory provisions, and that, if the officers intrusted with the filling of the wheel might exercise their discretion in excluding certain classes of jurors, there would be no limit, and the statutory method might be entirely abrogated. We think the action of the authorities erroneous and of such materiality as to require a reversal of this judgment.

One of the essential elements of the offense of possessing liquor for the purpose of sale is that there must be evidence establishing sufficiently the purpose for which the liquor was had. In many cases this court has held it admissible to prove sales of liquor by the accused, as tending to establish the issue just mentioned. The state proved by a number of witnesses that at times varying apparently from near to the date of this offense extending back for several months appellant had made many sales of liquor. We think the testimony admissible, and the charge of the trial court proper, restricting the jury’s consideration of said evidence to the issue of whether the liquor found and claimed to have been in the possession of appellant was in fact held by him for purposes of sale.

We would not think the failure .of the sheriff to make his return conform strictly to article 5164, Revised Civil Statutes, in summoning jurors in cases less than capital, would require a reversal, unless in some way injury was made to appear.

Appellant moved to require the sheriff to summon all jurors who did not answer the jury summons. The qualification of the learned trial judge to the bill makes plain the fact that he thereupon directed the sheriff to use all diligence in summoning all jurors who were drawn and' not served, and that the sheriff reported himself unable to secure any of those who had not been theretofore summoned.

By bill of exceptions, complaint is made of a conversation had by Mr. Jamison with appellant on Wednesday before the alleged raid and on the day following same. There is no suggestion that on either occasion the accused was in duress, and the burden is upon him who makes an objection to bring himself by sufficient showing within the ground of his objection. The conversations had with Mr. Jamison were material as supporting the proposition of appellant's possession of the liquor in question. What was said by Mr. Jamison was a part of the conversation, necessary to be introduced in order to comprehend the statement of the appellant made in reply.

We believe no error was committed in the admission of the testimony of the five witnesses who testified to their purchase of intoxicating liquor from this appellant prior to the date of the raid mentioned. The fact that some of said witnesses were unable to fix the exact time of the purchase would not affect the admissibility of the testimony. Nor do we think the contention that the state was allowed to prove the sale of liquor by more than three witnesses to possess any merit. The proposition advanced by appellant is not sound in fact, and appears to us to have no application in the instant case. The witnesses testified to different purchases of liquor.

After the introduction in evidence of two bottles of the whisky alleged to have been found in appellant’s possession, the jury were permitted to smell the bottles. The objection to this was held by us not tenable in Cook v. State, No. 7451,258 S. W. 1058, recently decided. No proof was offered at any time of the fact that the jury were influenced by or relied upon their own judgment in determining the intoxicating character of the liquor by its odor.

Appellant’s bills of exception Nos. 21 and 22 cannot be considered by us because dependent upon the narration therein of testimony heard by the .court in support of the motion for new trial. The bills of exception containing this testimony were not filed during term time. The trial ended on February 3, 1923, and the bills of exception were filed on April 14th thereafter. Ash v. State (Tex. Cr. App.) 245 S. W. 927; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Crowley v. State, 92 Tex. Cr. R. 103, 242 S. W. 472.

The judgment is reversed and the cause remanded. 
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