
    PIERCE v. STATE.
    (No. 10580.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1927.)
    1. Criminal law <©=>693 — Refusal to suppress testimony before it was offered held not error in prosecution for possessing liquor.
    Refusal of court to suppress testimony before testimony was offered held not error, in prosecution for possessing intoxicating liquor.
    2. Criminal law <©=31991 (2) — In liquor prosecution bill of exceptions to refusal to quash affidavit and search warrant held insufficient; it not setting out affidavit or sfiowing premises were misdescribed.
    In prosecution for possessing intoxicating liquor, bill of exceptions complaining of court’s refusal to quash affidavit and search warrant held insufficient, where affidavit was not set out or shown to incorrectly describe premises, and where premises did not appear to be private residence.
    3. Criminal law <@=>(038(3), 1056(1) — Failure to instruct on circumstantial evidence not considered, where no exception to charge, and no special charge requested.
    In prosecution for possessing liquor, failure to submit law of circumstantial evidence will not be considered, where'no exception to-charge was taken, and no special charge presented containing law on such issue; it being insufficient to raise matter for first time on motion for new trial.
    4. Criminal law <@=>l 120(4) — Bill of exceptions to erroneous admission of evidence, not setting out such evidence, held too general.
    In prosecution for possessing intoxicating liquor, bill of exception to testimony of witnesses, on ground that they would testify only as to facts discovered by unlawful search, which failed to set out testimony of any witness, held too general for consideration.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Russell Pierce was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.
    Affirmed.
    H. T. Lyttleton, of Marshall, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Harrison county of possessing intoxicating liquor for purposes of sale; punishment, three years in the penitentiary.

Officers having a search warrant went to' the place of appellant. As they approached the house, appellant was observed a short distance away. lYhen he discovered the officers, he ran beind the house, which was on a hill, and appellant’s movements could be observed by looking underneath the house. The officers said they saw him run back of the house and pick up something, and run to a smokehouse, and apparently place the object under said smokehouse. When the officers got there, they found under the edge of the smokehouse a gallon and a quart of whis-ky. In the house they found two 50-gallon barrels of mash and a heater, a fire being in the heater. Part of the whisky was in a gallon bucket, and part in a jug and fruit jar. The mash was made of meal, chops, sugar, and water, and the barrels were full. Fermentation was in process in the mash.

There is some testimony that, after the officers discovered the liquor, appellant tried to destroy the containers, and also tried to get one of the officers’ pistols. Appellant’s stepfather testified that he lived about 300 yards from the house wbere the officers found, the mash and whisky, and that appellant was staying at his house at night. The theory of the defense as made by the testimony of several witnesses, including appellant, was that, if there was any whisky at the house, it was put there by a strange man who was seen, according to the defense witnesses, going toward the house with a tow sack shortly before the officers appeared on the scene.

There are five bills of exception in the record. Bill No. 1 complains of the refusal of the court to suppress testimony before the testimony was' offered. Such procedure is unknown to our practice. Foster v. State (Tex. Cr. App.) 282 S. W. 600.

Bill No. 2 complains of the refusal of the court to quash the “affidavit and search warrant” herein. The bill of exceptions is defective. Nothing therein appears showing that the affidavit does not describe the premises with any sufficient accuracy, save appellant’s statement to that effect. Said bill does not assert that the place to be searched is a private residence. The affidavit referred to is not set out in the bill of exceptions. Under no authority known to us is the bill of exceptions sufficient. No error appears in the overruling of said motion.

There was no exception to the charge for its failure to submit the law of circumstantial evidence, and no special charge was presented containing the law of such issue. To raise such matter in the motion for new trial for the first time is not sufficient. This is the complaint set forth in bill of exceptions No. 4.

Bill of exceptions No. 5 is as follows:

“Be it remembered that on the trial of the 'above entitled and numbered cause, in the said court, had the defendant objected to the introduction of the testimony of the witnesses O. M. Ezell and Willie Smith, because the said witnesses knew and would testify to no new facts except such as they may have obtained by the unlawful search of the defendant’s premises, and the court overruled the1 said objection and refused the same. To which action of the court defendant then and there excepted,” etc.

Manifestly a bill of this character which sets out no testimony of any witness is too general to be considered. If we are able to comprehend what was done, as referred to by this bill, it would appear that the appellant made the objection to the testimony of each of said witnesses when offered upon the ground that they did not know anything, and could not testify to anything except such facts as they might have obtained by the unlawful search of appellant’s premises. It appears evident that the court could not know in advance what the testimony of the officers would be, and properly overruled such objection. There are no other exceptions.

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