
    LINDSEY v. STATE.
    (No. 9348.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Rehearing Denied Nov. 4, 1925.)
    1.Intoxicating liquors &wkey;>223(2) — Proof showing possession of more than one quart of whisky not a variance,from indictment not stating amount.
    Proof that defendant had possession of more than one quart of whisky is not a variance fromi indictment alleging that defendant had whisky in his possession since law making possession of more than one quart prima, facie Bvidence of guilt merely regulates question of proof, and possession of any amount of whis-ky is a crime.
    2. Criminal law &wkey;>l 126 — Bill of exceptions failing to set out contents of judgment not considered.
    . Bills of exceptions to admission of judgment of county court failing to set out judgment or j;o state its contents will not be considered.
    3. Criminal law &wkey;»l09l (I I) — Court prohibited from considering bills of exceptions in question and answer form.
    Court is prohibited, under Code Or. Proc. 1911, art. 846, from considering bills of exceptions made up in question and answer form.
    On Motion for Rehearing.
    4. Intoxicating, liquors &wkey;>211 — Reliance by state on proof of possession of more than one quart of whisky held not to make indictment alleging possession of liquor defective for failing to state amount.
    Reliance by state on evidence showing possession of more than one quart of liquor under provisions of section B, c. 22, Acts 38th Leg. (1923) 2d Called Sess., amending Acts 36th Leg. (1919) 2d Called Sess. e. 78, §§ 1, 2, as amended by Acts 37th Leg. (1921) 1st Called Sess. c. 61, §§ 1, 2, by adding thereto section 2e, does not make an indictment alleging possession of liquor defective for failing to state amount when possession of any amount of liquor is a crime, and state is not required to plead its( evidence.
    5. Intoxicating liquors &wkey;»!32 — Statute making possession of one quart of liquor prima facia evidence of guilt does not repeal statute making possession of any amount of liquor a crime.
    Section B of chapter 22, Acts 38th Leg. (1923) 2d Called Sess., amending sections 1 and 2 of chapter 78 of Acts 36th Leg. (1919) 2d Called Sess., amended by sections 1' and 2 of chapter 61, Acts 37th Leg. (1921) 1st Called Sess., by adding thereto section 2e, making possession of more than one quart of liquor prima facie evidence of guilt, does not repeal sections 1 and 2, making possession of any amount of liquor a crime, but only amends same.
    6. Criminal law <&wkey;109l (I I)— Question held to show no necessity for making bill of exceptions in question and answer form, and, in absence of certificate showing necessity of such form, it will not be considered.
    Where all matters complained of in bill of exceptions were based on first question as to what accused told officer on arrest, which was proper question, no- necessity was shown for placing entire bill of exceptions' in question and answer form, and, where there was no certificate of judge showing such form to be necessary, such bill of exceptions will not be considered.
    7. Criminal law <®=»l 119(2) — In absence of showing as to harmful character of answers to leading questions, ruling of court held correct.
    Where court was not advised of harmful character of answers to leading questions shown by bill of exceptions, ruling of court will be held correct.
    Commissioners’ Decision.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Tom Lindsey was convicted of unlawfully possessing intoxicating liquor for sale, and lie appeals.
    Affirmed.
    Sid Crumpton, of Texarkana, for appellant.
    ' Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

Appellant was indicted and convicted for unlawfully possessing intoxicating liquor for sale, and his punishment assessed at one year in the penitentiary.

Appellant assails the validity of the indictment by motion to quash and in several other ways, because the indictment alleges the defendant had whisky in his possession for sale; that the law made possession of more than one quart of whisky prima facie evidence of guilt; that the proof-of the state would and did show appellant had more than one quart in his possession; that the law required everything necessary for proof to be alleged in the indictment; and that, the indictment failing to allege more than one quart, there was a variance in the allegation and proof, etc. We are unable to agree with this contention. The law makes the possession of any amount of whisky for sale a violation by law, and attempts only to regulate or affect the question of proof, where it is shown more than one quart is found in de-defendant’s possession. We fail to find any error in the ruling of the trial court in refusing to quash the indictment nor in refusing to instruct a verdict by reason of the allegations thereof or in admission of evidence relative thereto.

In bill of exception No. 2 complaint is made to the introduction of alleged judgment of the county court, but said bill fails to set out .said judgment nor state the contents of same, and therefore is so defective we are unable to tell whether any error was committed or not. This court has repeatedly held it cannot consider such bills. Branch’s P. C. § 207, citing James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Hubbard v. State, 94 Tex. Cr. R. 480; 251 S. W. 1054, and many other decisions.

Bills of exceptions 4, 5, and 6 are made up of question and answer form, which the statute prohibits this court from considering same. C. C. P. art. 846.

Bill of exception 9 complains of the refusal of the court to give a special charge based upon the argument of the district attorney; this bill as qualified the judge fails to show any error.

We have carefully examined the record of this case, and are of the opinion that the judgment of the trial court should be af- • firmed, 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.

HAWKINS, J.

There is no merit in the renewed contention that the indictment was defective in not alleging that accused was in possession of more than a quart of intoxicating liquor for the purpose of sale; the contention being based on the theory that, as the state expected to rely upon proof of possession of more than a quart, the indictment should have so averred. As stated in our former opinion, the law makes the possession for sale of any quantity of intoxicating liquor an offense, and, when the state alleges this, it has charged a crime. Because the state expected to rely upon evidence showing possession of more than a quart under the provisions of section 2e, Acts 38th Leg. 2d Called Sess. e. 22, no more makes it necessary to so allege than it would be necessary to allege the evidence whereby - the state expected to show that less than a quart was possessed for the purpose of sale. To uphold appellant’s proposition would require the state to plead its evidence. The cases of Hewitt v. State, 25 Tex. 722; State v. Duke, 42 Tex. 455; Williams v. State, 12 Tex. App. 395, to which we are referred, are not in point. Hewitt was .prosecuted under a statute" which provided that, if a person should sell intoxicating liquors in quantities of less than a quart without having obtained a li-cence therefor, he would be guilty of a misdemeanor. The indictment failed to allege that he had not obtained the required license. The opinion in that case clearly states, if there had been a general prohibition against selling liquors in quantities of less than a quart, then to so allege would have charged an offense. The Legislature in the present instance has denounced as a crime the possession for sale of intoxicating liquor regardless of the amount; and said section 2e only prescribes a rule pf evidence which may or may not have application depending upon the facts of the particular ease.

Appellant further asserts that section 2e, c. 22, Acts 2d O. S., 38th Leg., is inoperative, because by section B of said act section 2e is declared to be an amendment of sections 1 and 2 of chapter 61, Acts 1st O. S. of the 37th Leg., when (as he claims) said sections 1 and 2 were repealed by the very act which undertook to add section 2e. This contention cannot be sustained. Sections 1 and 2 were first enacted by Acts 36th Leg. 2d C. S. c. 78. They were amended by Acts 37th Leg. 2d -C. S. c. 61. The caption of the amendatory act of the Thirty-Eighth Legislature which added section 2e, states the purpose of the act to he an amendment of sections 1 and 2 of chapter 78 of Acts 2d O. S. 86th Leg., as amended by-chapter 61, Acts 37th Leg., and further amendment thereof by adding said section 2e. The act does not repeal sections 1 and 2, hut amends them by rewriting both, and by adding thereto section 2e.

Appellant complains of the disposition made of his bills of exceptions 4 and 5, stating that an inspection of them would show that the forms of the questions were objected to, and therefore the questions and answers were set out in the bills. We think bill No. 4 is not subject to this construction. The objection interposed to the evidence therein set out was because the defendant was under arrest when it was elicited. All the matters complained of in the bill seem to be based upon the first question set out wherein the attorney for the state asked appellant if before he was arrested he had told the officers certain things. There is no vice in this question. We can discern no necessity of placing the entire bill in question and answer form. There is no certificate by the court that it was necessary to do so in order for this court to understand the conditions existing at the time the exception was taken. Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589.

Most of the questions set out in bill No. 5 appear to be leading, but the bill is not sufficiently explicit to advise us of the harmful character of the answers given in response thereto. In approving the bill, the court says the evidence was in reply to a severe personal attack on the witness Lanier under cross-examination. Without a more comprehensive statement than we find in the bill, we must conclude the ruling of the trial court was correct.

Believing proper disposition has been made of the case, the motion for rehearing is overruled. 
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