
    BERRY v. STATE.
    (No. 4854.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    On the Merits, Feb. 27, 1918.
    Rehearing Denied June 5, 1918.)
    1. Ball <&wkey;72 — Appeal — Recognizance — , Amendment.
    Where one convicted of a misdemeanor entered into a recognizance without sureties, but deposited money equal to the amount of the recognizance, the appellate court has no jurisdiction of the appeal, under Code Or. Proc. 1911, art. 920, but the appellate court may allow the appellant to amend by filing new bond or recognizance under article 923.
    On the Merits.
    2. Intoxicating Liquors <&wkey;236(13) — Liquid Sold — Prooe.
    In prosecution for selling intoxicating liquor, evidence held sufficient to sustain finding that liquid sold was whisky, and not cider, although no one tasted it.
    3. Criminal Law <&wkey;1056(l) — Exceptions— . Instructions.
    In misdemeanor case, refusal of requested charge on circumstantial evidence cannot be reviewed, where there was no exception to the given charge for omission to charge on circumstantial evidence.
    4. Judges <&wkey;49(l) — Disqualification — Prejudice.
    Conditions given by Const, art. 5, § 11, for disqualification of a judge are exclusive, and prejudice of judge is not a ground for disqualification.
    5. Jury <@=72(6) — Summoning Talesmen — Officer.
    That a constable, who was a witness in a criminal case, summoned the talesmen was not error, especially in view of a qualification of the trial judge that the constable had been legally designated by the sheriff as the officer in attendance upon the court.
    6. Criminal Law <&wkey;364(2) — Res Gestas — Statement by Accused.
    In prosecution for selling intoxicating liquor, where witness went twice to defendant before getting liquor, a statement of defendant the first time that the whisky would be $1.25 a pint was admissible as part of the res gestae.
    7. Intoxicating Liquors <&wkey;233(2) — Contents or Bottle — Evidence.
    Where liquor defendant was selling was taken out of a box in a basket, evidence that the basket containing the box and bottles was after-wards examined on the same day and found to •contain 11 bottles of whisky was admissible on an issue as to the contents of the bottle sold.
    8. Witnesses <§^269(10) — Cross-Examination — Scope.
    Where county attorney testified that he received a pint bottle from prosecuting witness; that the next morning the defendant came in and told him that if he would open the bottle he would find it was not whisky; that when he looked he found it was.broken, and the liquid spilled smelled like cider — an effort to prove on cross-examination that defendant told him he had emptied out the whisky and put in cider before he sold it was not germane to the direct examination, and an objection was properly sustained.
    9. Criminal Law <&wkey;413(l) — Self-Serving Declarations.
    In prosecution for selling intoxicating liquors, declarations of defendant that he had emptied the whisky out of a bottle, and that it contained cider when sold, were inadmissible, being self-serving.
    
      L0. Cbiminal Law <&wkey;1144(18) — Presumption-Motion jtor New Trial.
    Whore evidence on hearing of a motion for a new trial was not preserved by bill of exceptions or statement of facts, it must be assumed that conclusions of the trial’ judge that facts aliunde the record set up in the motion were not sustained by the evidence were correct.
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Richard Berry was convicted of unlawful selling of intoxicating liquor, and he appeals.
    Affirmed.
    Briggs & Florence, of Gilmer, for' appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   On Motion to Dismiss.

MORROW, J.

This is an appeal from a conviction for a misdemeanor. Appellant gave timely notice of appeal, and entered into a recognizance, putting in the hands of the clerk of the court trying the case a sum of money equal to the amount of the recognizance, but failed to have sureties join him therein. Subsequently during the term he sought to amend the recognizance, and appeared in court with sufficient sureties, but his request to be permitted to enter into a new recognizance was denied by the court.

In the absence of a recognizance this court has no jurisdiction of an appeal from a conviction for a misdemeanor where the appellant is at large. O. C. P. art. 020. By article 923 it is provided, however, that where a recognizance entered into within the time prescribed by law shall be determined by the court on appeal to be defective in form or substance, such appellate court may allow the appellant to amend such recognizance by filing a new bond or recognizance on such terms as the court may prescribe.

This court is without jurisdiction of the appeal, and the motion to dismiss must be granted. Permission is given to appellant, however, to enter into a new recognizance as soon as the court trying the case is in session, and the trial judge is directed to permit him to enter into such new recognizance.

On the Merits.

Appellant was convicted -of unlawfully selling intoxicating liquor in prohibited district. The offense was a misdemeanor.

The sale was charged to have been made to George Erwin. He testified: That he bought a bottle of whisky from appellant and paid him $1.25 for it. The bottle and its contents were delivered by the witness to the county attorney. Erwin did not drink any of it, nor smell it, and said he did not know what was in the bottle. The county attorney testified that after he received the bottle he put it in his desk. The seal, consisting of a label pasted over the cork, had not been broken. That on the day of the trial he found the seal broken on one side. That the appellant had come to his office and told him to open the bottle, and he would see it was not whisky, and that he then on looking at the bottle found it was broken. That near the bottle there was something spilled on the desk which smelled like cider and not like whisky; that his desk had been opened by some one who picked the lock. That the bottle was labeled “Blue Ribbon Whisky.” A witness testified that it was the color of whisky and that it “beaded” like whisky, and in his opinion it was whisky, not cider and not vinegar.

appellant’s defense, supported by his testimony, was that the liquor that he sold the prosecuting witness was not whisky, but was cider; that he had opened the whisky bottle by raising the seal and had emptied the whisky, filled the bottle with 'cider, and replaced the seal and put it in his laundry basket. There was some evidence that when Erwin first sought to purchase the whisky that he was told by appellant that it would cost him $1.25 a pint; that he did not have any at that time, but when Erwin went back later he got it. Erwin also testified that there was a basket and a box brought in, the box sitting in the basket and the whisky in the box. Subsequently, on the same day, a witness found on the premises 11 bottles similar to that in question, all labeled “Whisky.”

The appellant insists that the evidence’ does not support the conviction. We have not undertaken to quote it all. It was purely circumstantial, so far as the identity of the contents of the bottle was concerned but we regard it as sufficient to support the finding of the jury.

The appellant submitted a special charge requesting the instruction of the jury on the law of circumstantial evidence, and the refusal of this charge would not have been authorized except for the fact that, this being a misdemeanor case, and the judge certifying that there was no exception to the charge for the omission of the charge on circumstantial evidence, the point, under the authorities, is not raised. Howard v. State, 8 Tex. App. 612; Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Bennett v. State, 50 S. W. 945; Schneider v. State, 70 Tex. Cr. R. 517, 156 S. W. 944.

The appellant filed a motion to require the judge to disqualify himself on the ground that he was prejudiced and had expressed his prejudice against the appellant, and complains of the failure of the court to sustain his motion. The Constitution (article 5, § 11) names the circumstances under which a judge is disqualified to sit in a case, and the conditions named establishing his disqualification appear to be exclusive. Johnson v. State, 31 Tex. Cr. E. 461, 20 S. W. 985; Drechsel v. State, 39 S. W. 678; Benson v. State, 39 Tex. Cr. E. 56, 44 S. W. 167, 1091; Trinkle v. State, 59 Tex. Cr. R. 259, 127 S. W. 1060; Burrell v. State, 65 S. W. 914. In some states there are statutes which disqualify the judge on the ground of prejudice. Our laws appear to proceed on the theory that prejudice against an accused does not disqualify the judge from trying the case, the accused’s rights being fully protected under the Constitution, which gives him the right of a legal trial before an impartial jury and review on appeal.

A bill which complains that the constable, who was a witness in the case, summoned the talesmen, does not show error, especially in view of the qualification of the trial judge that the constable had been legally designated by the sheriff as the officer in attendance upon the court.

The court gave a charge to the jury which submitted the issues in a manner which appears not to have been subject to objection. No exceptions to the charge having been filed, the various special charges requested are not presented in a manner which would render them, subject to review.

The objection to the testimony of the witness Erwin that when 'he first called on appellant he was told by him that the whisky would cost $1.25 a pint was not subject to objection. It is part of the res geste. The fact that the basket containing the box and bottles of whisky was brought into appellant’s b'arber shop, and afterwards on the same day examined and found to contain 11 bottles of “Blue Eibbon” whisky was not subject of objection. It was admissible as a circumstance on the issue raised as to the' contents of the bottle in question. Myers v. State, 56 Tex. Cr. R. 223, 118 S. W. 1032. The state called the county attorney as a witness to prove by him that he had received a pint bottle-of whisky from the prosecuting witness Erwin, and had put it in his desk, and that it remained there until the morning, of the trial, when he found the seal broken; also the bottle broken. On cross-examination he testified that the appellant had come in on the morning before the trial and told him that if he would open the bottle he would find it was not whisky, and that when he looked he found it was broken, and that the liquid spilled smelled like cider and not like whisky. An effort was made to prove by the witness that the appellant told him that he had poured whisky out of the bottle and filled it with cider, and that it was not whisky that he sold. -We do not think there was any error in sustaining the objection to this testimony. It would be classified as self-serving. It was not explanatory of anything that was drawn out by the state from the witness, and was therefore not germane cross-examinti.on. There are various matters set up in the motion for new trial, the existence of which would depend on facts aliunde the record. The judgment overruling the motion for new trial recites that the court heard evidence on the motion before overruling it. In the absence of the preservation of such evidence -by way of bills of exceptions or statement of facts this court is left in ignorance as to what proof was made, and must assume, in deference to the finding of the trial court, that his conclusion that the matters of fact set up in the motion were not sustained by the evidence is correct. We have made a careful examination of the entire record, together with all bills of exceptions, and as the matter is presented we find no reversible error. The evidence, while circumstantial, was, we think,- sufficient to discharge the .burden upon the -state to prove that the liquid sold was intoxicating liquor. Pike v. State, 40 Tex. Cr. R. 614, 51 S. W. 395; Black on Intoxicating Liquor, § 497; Joyce on Intoxicating Liquor, § 674.

The judgment is affirmed.

PEENDEEGAST, J., absent. 
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