
    EMERICK v. STATE.
    (No. 8113.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.
    Rehearing Denied April 2, 1924.)
    9. Criminal law <§=3363 — Testimony as to finding fluid similar to< some which witness had seen used in coloring whisky held admissible.
    In a prosecution for manufacturing intoxicating liquor, testimony as to the finding of a bottle of red fluid, which a witness testified was similar to fluid he had seen used in coloring whisky, held admissible as part of the res gest®.
    2.Criminal law ©=>404(4) — 'Whisky in district attorney’s possession held admissible in prosecution for manufacturing.
    In a prosecution for manufacturing intoxicating liquor, introduction of two bottles of whisky which had been in the district attorney’s possession held not error, in view of the assistant district attorney’s testimony that he Jmci received from the officers a certain quantity of whisky as coming from defendant when hp was arrested, and that the bottles produced were part of that so received; the objection going to the weight, not the admissibility, of the testimony.
    3. Criminal law ©=>459 — Testimony as to smell of corn whisky from house of alleged manufacturer held admissible.
    In a prosecution for manufacturing intoxicating liquor, testimony of a woman living near defendant as to having detected the smell of corn whisky, with the odor of which she was familiar, coming from defendant’s house for several months and on the day of the raid, held admissible.
    4. Criminal law ©=»I09I (I I) — Bill of exceptions in question and answer form improper.
    A bill of exceptions in question and answer form is improper.
    5. Intoxicating liquors ©=>236(19) — Conviction of manufacturing held supported by evidence.
    Evidence held sufficient to hupport a conviction of manufacturing intoxicating liquor.
    Appeal from Criminal District Court, .Tar-rant County; Geo. E. Ilosey, Judge.
    John Emerick was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Simpson, Moore & Parker, of Fort Worth, for appellant.
    R. K. Hanger, Crim. Dist. Atty., and W. H. Tolbert and Julian B. Mastin, Asst. Crim. Dist. A ttys., all of Fort Worth, and Tom Garrard, State’s Atty., and Grover G. Morris, Asst. State’s Atty., both of Austin, for the State.
   DATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of manufacturing intoxicating liquor, and his punishment fixed at two years, in the penitentiary.

We are without the assistance of a brief on the part of able counsel for the appellant. The facts show1 that on the day of the alleged offense officers went to a house which appellant had had under his control and management for three years, and found him and another man present. The house' consisted of three rooms, one behind the other. In the front room were found 400 pounds of ice and 5 or 6 gallons of whisky. In the second room was a still in operation; the coil going through a barrel in which was ice. The fires were burning under the container. In this room also were found 3 barrels of mash ready for cooking and a bottle of coloring matter. ■ In the third room were found 8 barrels of fermenting mash. One of the state witnesses, Mr. Yotaw, testified when they passed in front of the house they de-teeted the odor of corn -whisky. Appellant’s only contention was that he rented the two' rear rooms of his house to a man named “Oharley,” and that, if there was any liquor being made on the premises, it was being made by Charley and without any 'connection therewith on appellant’s part. By a number of witnesses appellant proved a good reputation as a peaceable, law-abiding citizen.

Appellant has eight bills of exception. Nos. 1, 2, and 3 present objections in various forms to testimony concerning the bottle of fluid that was red and similar to what one of the witnesses said he had seen used for the purpose of coloring whisky. We do not think the evidence objectionable. Appellant denied any connection with the whisky in process of manufacture on his premises. The witness for the state testified that, while he was not a chemist or druggist, he had seen similar red fluid used in coloring whis-ky. The finding of same was part of the res gestse of the transaction and was admissible for what it was* worth.

The bill of exceptions complaining of the introduction in evidence of two bottles of whisky which had been in the possession of the district attorney presents no error, in view of the testimony of the assistant district attorney that he had received from the officers a certain quantity of whisky as coming from the defendant at the time he was arrested, and further testimony of the witness that the bottles produced were part of that received from the officers. There was no bill of exceptions reserved to the testimony of the assistant district attorney. The objection to the bottles would go to the weight and not the admissibility of the testimony.

Appellant has four bills of exception presenting various objections to the testimony of state witness Mrs. Mann, who testified that she lived near appellant and for several months had been observing the smell of corn whisky coming from his house, she being familiar with the odor of such liquor, and that she noticed this smell the day the officers came out and made their raid. The witness having averred as a matter of fact her ability to detect the odor of corn whis-ky, based on her knowledge and familiarity With the same, and the fact that said odor came from the house of appellant, and had so been coming for two months before the arrest, We think the evidence admissible. One of said bills of exception is in question and answer form, and would therefore be subject to an objection based on that fact.

In our opinion none of the bills of exception present reversible error, and, the evidence appearing ample to support the verdict, the judgment will be affirmed. 
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