
    ZULKOSKI v. STATE.
    (No. 9097.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.
    Rehearing Denied Jan. 13, 1926.)
    1. Criminal law <&wkey;>459 — Objection to permitting witnesses to testify, on ground they were not shown to be sufficiently qualified, goes more to weight than admissibility of testimony.
    Objection to permitting witnesses to testify as to intoxicating qualities of whisky, ■ on ground that they were not shown to be sufficiently, qualified, went more to weight than admissibility of testimony, and was properly overruled.
    2. Criminal law <&wkey;404(4)— Objection to admission of articles taken from defendant’s premises went more to weight than admissibility of testimony.
    Objection to admission of utensils and vessels taken from defendant’s pi’emises, in trial for manufacturing intoxicating liquor, on ground they were not sufficiently identified, went more to weight than admissibility . of testimony.
    3. Criminal law &wkey;>l 169(2) — Admission of testimony practically same as that of another witness not error.
    Admission of state’s witness’ testimony, in trial for manufacturing intoxicating liquor, that defendant’s wife attempted to take whisky from witness immediately after raid, held not error, where practically same testimony was given hy another state’s witness.
    4. Criminal law <&wkey;l 166>/2(12) — Court’s remark that defendant had denied fact held not harmful comment on weight of testimony.
    Court’s remark, in reply to defendant’s objection that his wife had not denied attempt to take whisky from witness, that “defendant had denied it,” held not such comment on weight of testimony as would be. likely to harm defendant.
    5. Criminal law @=3)829(15) — Refusal of charge covered by court’s general charge not error.
    Refusal of charge on circumstantial evidence was not error, where court fully covered such phase of case in general "charge.
    6. Intoxicating liquors <§=238(l) — Guilt of manufacturing held for jury.
    Evidence held sufficient to take to jury question of defendant’s guilt of manufacturing intoxicating liquor.
    7. Criminal law <&wkey;554, 555 — Jury not bound to accept testimony of defendant or members of his family.
    Jury is not bound to accept testimony Of defendant or parties deeply interested, like members of his family, where there is any conflict of testimony.
    8. Intoxicating liquors <&wkey;>236(l9) — Conviction of manufacturing held sustained by evidence.
    Evidence held, sufficient to sustain conviction of manufacturing intoxicating liquor.
    On Motion for Rehearing.
    9. Criminal law &wkey;3Í09l(4) — Bill of exception held insufficient, when not showing testimony related to different offense.
    Bill of exceptions to admission of testimony of former sheriff, since deceased, on examining trial, held insufficient, when containing no statement of facts supporting contention that testimony related to another offense than that for which accused was on trial.
    10. Criminal law <&wkey;:l090(l9) — That testimony on examining trial related to different offense must be shown by bill of exceptions.
    Objection to admission of testimony on examining trial as relating to different offense is not substitute for statement of such fact, authenticated by trial judge in bill of exceptions.
    11. Criminal law &wkey;l 144(12) — Trial court presumed to have properly admitted testimony on examining trial, where bill of exception does not show error.
    Presumption is that trial court properly admitted testimony on examining trial, where bill of exception shows no fact rendering ruling erroneous, such as fact that testimony related to different offense.
    Commissioners’ Decision.
    Appeal from District Court, Brazos County ; W. C. Davis, Judge.
    .Peter Zulkoski was convicted of manufacturing intoxicating liquor, and appeals.
    Affirmed.
    W. S. Barron and E. L. Henderson, both of Bryan, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both, of Austin, for the State.
   BAKER, J.

The appellant was convicted in the district court of Brazos county for the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The facts, briefly stated, are that the sheriff, his deputy,' and some other parties went to and searched the premises of the appellant, and there found a barrel, which they contended contained mash, an oil can, which was contended by the state that was used for manufacturing intoxicating liquor, and which said witnesses for the state testified had substance like mash in it and was warm, and that they also found some whisky in the house of said appellant and some yeast cakes. The appellant testified in his own behalf, and introduced' other testimony corroborating him to the effect that said barrel with what purported to be mash in it was hog feed, and that he kept the barrel for that purpose, and had feed mixed up in it in the way of chops, bran, and other ingredients with which to feed his hogs, and that the five-gallon can above mentioned was used by his wife for the purpose of heating water for washing and scrubbing purposes, and that his wife had been in bad health for many years, and that he had bought the whisky found on his premises from a negro for medicinal purposes alone. Appellant introduced several witnesses, including a doctor, as to the condition of his wife’s health, and that she had been in bad health a long time, and the doctor had advised that whisky would be good for her condition. Appellant’s witnesses also testified that the yeast cakes were made and used by his wife for bread-making' purposes. This is a sufficient statement .of the facts for a discussion of this case.

In bills of exceptions 1, 5, 6, 7, and 8, complaint is made to the action of the court in permitting the state’s witnesses to testify as to the intoxicating qualities of the whisky in question, upon the ground that they were not shown to be sufficiently qualified for that purpose. There was no error made in overruling these objections because same went more to the weight than to the admissibility of the testimony.

In bills of exceptions 2, 3, 4, and 9, complaint is made to the action of the court in admitting in evidence utensils and vessels alleged to have been taken from the premises of the appellant, because it is contended that same were not sufficiently identified. We are unable to agree to this contention, and are of the opinion that said objections went more to the weight than to the admissibility of said testimony.

In bill of exception No. 10, appellant complains of the action of the court in permitting the state to introduce in evidence the testimony of the former Sheriff Morehead, deceased, given upon the examining trial of the defendant. This bill is insufficient to show error, in that it does not contain a sufficient statement of the facts to show of itself any error therein, and, as presented, we will have to presume court’s action in the admission of said testimony was correct.

Bill of exception No. 10% complains of the action of the court in permitting the state’s witness Wheeles to testify in effect that the appellant’s wife attempted to take the whisky away from the witness who had it in charge at appellant’s premises immediately after said raid, and because the court, in reply to the objection made by appellant’s counsel, to the effect that the appellant’s wife had not denied making such an attempt, and that the state’s witness Williams had testified to practically the same effect, and that said testimony was not admissible for rebuttal purposes, stated “that the defendant had denied it.” We are of the opinion that there is no error shown in this bill, for the reason that practically the same testimony was given by the state’s witness Williams, and the remark of the court to counsel’s objection that the defendant had denied same was not such a comment on the weight of the testimony as would likely be harmful to the defendant before a jury in this instance.

In bill of exception No. 11, complaint is made to the refusal of the court to give in charge to the jury appellant’s special charge No. 6 on circumstantial evidence. The court in his general charge covered this phase of the case fully.

In bills of exceptions 14 and 13, appellant complains of the action of the court in refusing to peremptorily instruct the jury to return a verdict of acquittal. We are of the opinion that the court rightfully refused these charges requested, and properly left the facts to the jury to determine.

It is contended by the appellant in this case that the evidence is insufficient to sustain a conviction, and that the whisky found on appellant’s premises was properly explained, and the mash found in the barrels and in the five-gallon oil can, as testified to by the state’s witness, was overcome by the testimony of the appellant, his wife and children. We are unable to agree with appellant in this contention. This court has frequently held that the jury is not bound to accept the testimony of the defendant or parties deeply interested, like the defendant’s family in this case, where there is any conflict of testimony on the issues as herein presented.

After a careful examination of the entire record, we are unable to say that the evidence was not sufficient to warrant the jury in reaching a verdict of guilty in this case, and, for the reasons above stated, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

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.

MORROW, P. J.

Re-examination of the record in the light of the.appellant’s motion for rehearing leads us to the conclusion that proper disposition was made of the appeal upon the original hearing.

We are referred to the case of Somers v. State, 54 Tex. Cr. R. 475, 113 S. W. 533, 130 Am. St. Rep. 901, in which was announced the rule that reproduced testimony given upon an examining trial should not be received, where it appeared that the testimony related' to an offense other than that for which the accused was on trial. As we understand the bill, the rule stated was not transgressed. Morehead, the deceased sheriff, had, upon the examining trial, given the testimony reproduced, and we fail to find aught in the bill supporting the contention of the appellant that the testimony related to'an offense other than that for which 'the accused was on trial. If we comprehend the bill, the testimony given related to the present transaction. One of the reasons given by the appellant’s counsel for opposing the introduction of the testimony was that it was adduced upon an inquiry concerning a different offense. The objection is but a ground upon which the receipt of the testimony is opposed, and is not a substitute for the statement of an existing fact, bearing the authentication of the trial judge. Quinney v. State, 86 Tex. Cr. R. 358, 216 S. W. 882; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405. As stated above, the transaction appears to be the same. The trial court having received it, the presumption that he correctly ruled prevails; there being nothing in the bill showing any fact rendering his ruling erroneous. See Cavanar v. State, 99 Tex. Cr. R. 446, 269 S. W. 1053; Ard v. State (Tex. Cr. App.) 276 S. W. 263.

The motion for rehearing is overruled. 
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