
    WILLIAMS v. STATE.
    (No. 7630.)
    (Court of Criminal Appeals of Texas.
    March 14, 1923.
    Rehearing Denied April 11, 1923.)
    1. Criminal law <&wkey;il092(12) — Bill of exceptions not approved by trial court nor sufficient as bystander’s bill not considered.
    A bill of exceptions not approved by the trial court, as is required of an ordinary bill, nor presented in accordance with rules governing bystanders’ bills, will not be considered.
    2. Criminal law <&wkey;l092(!2) — -Bill originally presented to court must be marked “Refuse#’ before resort had to bystander’s bill.
    Before resort can be had to a bystander’s bill, the bill originally presented .to the trial court must be marked “Refused” by him, and returned and filed.
    3. Criminal law <&wkey;304(20)— Judicially known that whisky is intoxicating liquor.
    The court has judicial knowledge that whis-ky is intoxicating, spirituous liquor.
    4. Criminal law <&wkey;763, 764(1) — Instruction as to defendant’s name held not on weight of evidence.
    Where one count of an indictment for selling intoxicating liquor charged an offense against Grover W. and the second charged one against Eugene W., and in argument defendant’s attorney stated that the jury did not know who they were trying, an addition to the charge theretofore prepared and submitted to counsel that, when defendant is arraigned, his name as stated in the indictment shall be distinctly called, and unless he suggests that he is not indicted by his true name it shall be taken that his name is truly set forth, was not on the weight of evidence, nor calculated to lead the jury to hold defendant responsible for variance in his name as alleged.
    5. Criminal law <&wkey;i8l8 — Code not so restrictive as to deprive court of right to give additional charges after main charge given.
    The Code in regard to charges is not so restrictive as to deprive trial courts of the right or power to give additional or corrective charges when necessity therefor arises after the main charge has been given the jury.
    On Motion for Rehearing.
    6. Criminal law &wkey;>l090(l9) — Recital in judgment that defendant excepted to refusal to quash venire insufficient to take place of bill of exceptions.
    A recitation in the judgment that defendant excepted to the refusal to quash the venire is not sufficient to take the place of a bill of exceptions.
    7. Criminal law <&wkey;1090(l9) — Recital in judgment of defendant’s exception to refusal for continuance will not supply place of bill of exceptions.
    A recital in the judgment or minutes that a continuance was refused, to which defendant excepted, will not supply the place of a bill of exceptions.
    Appeal from District Court, Taylor County ; W. R. Ely, Judge.
    Eugene Wlilliams was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Ben L. Cox, of Abilene, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Taylor county of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The statement of facts contains less than one page, and consists of the testimony of a witness who swears that about the 3d day of June, 1922, he bought two pints of corn whisky from appellant, for which he paid $4, this occurring in Taylor county, Tex.

There are three bills of exception in the record. The first complains of the action of the court in asking appellant in the presence of the jury what his name was. The indictment contained two counts, one charging an offense against Grover Williams, and the other charging an offense against Eugene Williams, the state electing to prosecute under the second count. We cannot consider the bill of exceptions referred to. It is not approved'by the trial court, as is required of an ordinary bill of exceptions, nor is it here presented in accordance with well-settled rules governing bystanders’ bills. The two men who subscribed same as bystanders appear to have been sworn, and thé jurat affixed shows it to be taken, by appellant’s attorney. Garza v. State, 65 Tex. Cr. R. 476, 145 S. W. 591; Hogan v. State, 66 Tex. Cr. R. 498, 147 S. W. 871; Cuellar v. State, 69 Tex. Cr. R. 155, 154 S. W. 228; Burnett v. State, 73 Tex. Cr. R. 477, 165 S. W. 581; Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 567. In addition to the above, the purported bill of exceptions violates the well-known rules regarding bystanders’ bills. In Osborne v. State (Tex. Cr. App.) 56 S. W. 54, it is stated that a bill of exceptions signed by only two bystanders is not sufficient. The instant bill appears to be signed by only two persons. In Landrum v. State, 37 Tex. Cr. R. 666, 40 S. W. 737, appears the statement that there must be other evidence of the refusal of the trial judge to sign and approve the bill beside the statement of that fact by the bystanders who authenticate the bill.

In Washington v. State, 58 Tex. Cr. R. 345, 125 S. W. 917, appears approval of the well-settled rule that, before resort can be had to a bystanders’ bill, the bill originally presented to the trial court must be marked “Refused” by him, and returned and filed. This Is not trae oí the instant bill. For further authorities, see Jones v. State, 89 Tex. Cr. R. 6, 229 S. W. 865; Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869; Anderson v. State, 251 S. W. -, opinion rendered February 28, 1923.

Appellant’s second bill of exceptions on file complains of the court’s instruction to the jury that whisky is spirituous liquor capable of producing intoxication. This presents no error, as this court has often stated it has judicial knowledge of the fact that whisky is intoxicating spirituous liquor. See Banks v. State, 89 Tex. Cr. R. 438, 230 S. W. 994, and authorities collated by Mr. Branch in his Annotated P. C. § 1239.

The remaining bill of exceptions complains of the fact that, while appellant’s counsel was arguing to the jury, he stated that appellant’s name was charged in one count of the indictment as one and in the other count as another name, and that they did not know whom they were trying. It is shown that at that juncture the court gave an addition to the charge which he had theretofore prepared and submitted to counsel, said additional charge being as follows:

. “Gentlemen of the jury; You are charged when the defendant is arraigned his name, as stated in the indictment, shall be distinctly called; and unless he suggest by himself or counsel that he is not indicted by his true name, it shall be taken that his name is truly set forth.”

The complaint at this charge that it was on the weight of evidence does not s.eem tenable, and the further complaint that it was out of place, and calculated to lead the jury to hold appellant responsible for a variance in his name, as alleged in the two counts in the indictment, does not seem to be of material weight. Such an instruction might be necessary in a given case to prevent confhsion in the minds of the jury. There appears to have been no suggestion on the part of appellant of his true name. His counsel was arguing to the jury that they could not know who they were trying. There is no complaint setting forth that this charge was not submitted to appellant’s counsel, or that he was not given an opportunity to challenge the correctness of same. We do not deem the articles of our Code in regard to charges to be so restrictive as to deprive the trial courts of the right or power to give additional charges or corrective charges when the necessity therefor arises after the main charge has been given to the jury.

Believing no error to have been committed, and that appellant has had a fair trial, the judgment will be affirmed.

On Motion for Rehearing.

In a motion for rehearing by appellant it is urged that we did not consider the errors of the trial court in overruling appellant’s application for a continuance, and in overruling his motion to quash the jury array. The record does not show any order of the court in either regard, nor is there any bill of exceptions presenting complaint thereof. Appellant insists that his exceptions as to both appear in the record, and refers us to the judgment of the court below wherein we find it stated that the trial court had overruled, the defendant’s motion to quash the jury array and defendant’s motion for continuance, to which the defendant excepted. Further than as just stated no other exception appears to the court’s action upon either of said motions.

We held in Caldwell v. State, 2 Tex. App. 53, Wakefield v. State, 3 Tex. App. 39, and Asbeck v. State, 70 Tex. Cr. R. 225, 156 S. W. 925, that a recitation in the judgment that the accused excepted to the refusal to quash the venire was not sufficient to take the place of a bill of exceptions. See, also, in Hollis v. State, 9 Tex. App. 643; Gaston v. State, 11 Tex. App. 143; Prator v. State, 15 Tex. App. 363; and Wesley v. State, 60 Tex. Cr. R. 299, 131 S. W. 1107—we held that a recital in the judgment or minutes that a continuance was refused, to which defendant excepted, would not supply the place of a bill of exceptions. We are unable to see any good reason for doubting the soundness of the rulings in each instance. A bill of exceptions presented to the trial court for approval brings the matters complained of before the lower court in a manner that appropriate explanation or qualification may be made if proper. For illustration, the absent witnesses may have appeared during the trial, and, this fact being shown by the court’s qualification, no error would appear.

Being unable to accept either contention of appellant, his motion for rehearing will be overruled. 
      
       other cases see same topic and KEY-NUMDER in all Key-Numbered Digests and Indexes
     