
    BELCHER v. STATE.
    (No. 8092.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1924.
    Rehearing Denied March 5, 1924.)
    1. Intoxicating liquors &wkey;>l32 — State statute not invalid by reason of federal statute on same subject.
    The statute prohibiting the manufacture of intoxicating liquor except for certain purposes embraced in Vernon’s Ann. Pen., Code Supp. 1922, art. 588½, is not invalid by reason of the federal statute on the same subject.
    2. Jury ¾§=131(3) — Defendant may elicit facts enabling exercise of peremptory challenges.
    Defendant may by proper interrogation and within reasonable limits elicit facts enabling him to intelligently exercise his peremptory challenges.
    3. Criminal law <&wkey;>1092(ll) — Filing of exception by court in lieu of another not certified held not necessary.
    Where matters complained of in a bill of exceptions which the court declined to certify did not in fact take place, there is no occasion for the trial judge to file a bill of exceptions in lieu of the one presented.
    On Motion for Rehearing.
    4. Criminal law <&wkey;>l092(ll) — Bills of exception must show truth of facts complained of.
    It is incumbent upon one preparing a bill of exceptions to show not only his complaint, but also the truth of the facts upon which the complaint rests, it being insufficient merely to state grounds of objection or that questions were asked and answers excluded.
    5. Criminal law <®=> 1092(II) — Indorsement on bill of exceptions held not within rule against ■ approval in such manner as to destroy.
    A bill of exceptions upon which the court indorsed the statement that it did not certify that the proceedings set out in the bill were had, nor that matters alleged therein were true, held not within the rule that the court may not approve a bill in such a manner as to destroy it.
    6. Criminal law <&wkey;4092(l I) — Complaint that . qualification of bill of exception was without knowledge or consent of appellant held not available.
    The complaint on appeal that a bill oij exception was unsatisfactorily qualified without the knowledge or consent of appellant held not available where it appeared that the bill with the qualification complained of was on file in the office of the district clerk for several weeks before expiration of the time within which bills of exception might be filed, and. no effort was made to have the qualification corrected or removed or other complaint made during that time.
    Appeal from Criminal District Court, Dallas County; O. A. Pippen, Judge.
    . Henry Belcher was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    W. W. Nelms, of Dallas, for appellant.
    Shelby S. Cox, Cr. ■ Dist. Atty., of Dallas, and Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The evidence supports the verdict. The indictment is like that held sufficient in Russell v. State, 88 Tex. Cr. R. 582, 228 S. W. 948; Stringer v. State, 92 Tex. Cr. R. 46, 241 S. W. 159.

The statute prohibiting the manufae-’ ture of intoxicating liquor except for certain named purposes embraced in article 588½,

P. C., is not rendered invalid by the United States statute upon the same subject. Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199.

Appellant presented a bill of exceptions to the trial judge, complaining that he had been denied the privilege of ascertaining from the members of the venire whether they were members of tbe order known as the Ku Klux Klan. The judge made upon it this indorsement:

“The court does not certify that the above proceedings were had, nor does the court certify that any of the matters alleged therein are true, nor that there was any basis for supposing them to be true.”

A peremptory challenge is defined as “a challenge made to a juror without assigning any reason therefor.” Article 690, C. O. P. The right to exercise a peremptory challenge confers upon the accused the right to give effect to his “natural impulse to eliminate from the jury list not only persons who are rendered incompetent for some of the disqualifying causes named in the statute but persons who, by reason of polities, religion, environment, association or appearance, or by reason of the want of information 'with reference to them, the accused may object to their service upon the jury to which the disposition of his life or liberty is submitted.” Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163, and authorities cited.

As a predicate for such action, the accused may, by proper interrogation, elicit facts which will enable him to intelligently exercise bis right of challenge. “This must, of course, within reasonable limits, be determined under the facts of the particular case by the trial judge. His discretion in the matter, however, has limitations, and, when abused, will be corrected upon appeal.” Reich v. State (Tex. Cr. App.) 251 S. W. 1073, and cases there cited. In the present case, however, the record brings forward for review no rulings of the trial court in conflict with the statute and practice mentioned. It appears only that a bill of exceptions was presented and that the court, for the reasons stated, did not allow it. The reasons given in the certificate are certainly sufficient to justify such action. From the certificate it appears that the proceedings recited in the bill did not take place. Conceding this to be true, there was no occasion for the judge to file a bill of exceptions in lieu of the one presented. If the appellant regarded the certificate as untrue, a bystander’s bill was available to him. The reason an'd authorities in the opinion of Judge Lattimore, speaking for this court in Wilson’s Case, 87 Tex. Cr. R. 629, 224 S. W. 772, are applicable to the present case. See, also, Shaw v. State, 89 Tex. Cr. R. 205, 229 S. W. 511.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J. [4] Appellant insists that the court below cannot approve a bill in such manner as to destroy it, it being contended that this was done to appellant’s bill of exceptions No. 3. We do not think so. It is incumbent upon him who, by a bill of exceptions, complains of any action of the court below, to so prepare his bill as to make apparent, not only his complaint, but also the truth of the facts upon which such complaint rests. It has always been the rule of this court that it is not enough to state mere grounds of objections, or that questions were asked the answers to which were rejected. The truth of the matters set up as objections, and the facts making competent and material the question rejected, must appear from the averments of the bill itself.

The particular bill of exceptions under discussion contains the certificate of the trial judge that he does not certify that the proceedings set out in the bill were had, nor does he certify that any of the matters alleged therein are true, nor that there was any basis for supposing them to be true. We do not think this to be within the rule laid down by any of the cases cited by appellant in his motion. vOn the point that the bill was thus qualified without the knowledge or consent of appellant, we note that the bill of exceptions was filed on the 8th of May, 1923, and that appellant had 60 days from the 29th of March of said year in which to file his bills of exception. It is evident that this bill with the above qualification attached -was on file in the office of the district clerk of Dallas county several weeks before the expiration of the time, and no effort appears to have the qualification corrected or removed, nor was any complaint made during the trial term of the refusal of the court to allow a bystander’s bill, nor in any legal way to bring before us a review of the court’s action in appending said qualification. In this 'condition of the record we think the original opinion óf this court correct in its disposition of the complaint.

The motion for rehearing will be overruled. 
      ©ther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     