
    STRICKLAND v. STATE.
    (No. 9307.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law <&wkey;!090(8)— Admission of testimony that accused told officers they could search place held not reversible error.
    Admission of testimony that accused told officers they could search place held not reversible error, in absence of bill of exceptions indicating in what way such testimony harmed accused.
    2. Criminal law &wkey;>5!9(3) — There are exceptions to general rule that statements of party made under arrest are not admissible.
    There are exceptions to general rule that statements of party made under arrest are not admissible.
    3. Criminal law &wkey;>5l9(3) — Party Invoking rule precluding admission in evidence .of statements of party made under arrest must show testimony objected to does‘not come within exceptions to rule.
    Party invoking rule precluding admission In evidence of statements of party made under arrest must show testimony objected to does not come within exceptions to rule.
    4. Criminal law &wkey;>l 167(2) — Submission to jury of two counts held not reversible error.
    Submission to jury of two counts in indictment held not reversible error, where there was evidence sustaining each count, and the court instructed jury accused could be convicted only on one count.
    On Motion for Rehearing.
    5. Criminal law <&wkey;I09l(4) — Bill of exceptions complaining of asking of question, but not showing answer thereto', is insufficient.
    A bill of exceptions complaining of the asking of a question must show, in order to be sufficient, not only that the question was answered, but state what answer was given, and, if it does not, the bill is insufficient.
    6. Intoxicating liquors <&wkey;236(19) — Evidence held sufficient to justify, conviction for keeping premises to manufacture liquor capable of producing intoxication.
    Evidence held sufficient to justify conviction for keeping premises to manufacture liquor capable of producing intoxication.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    J. D. Strickland was convicted of the offense of keeping premises for the purpose of manufacturing liquor capable of producing intoxication, and he appeals.
    Affirmed.
    Dickens & Dickens, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Travis county for the offense of keeping premises for the purpose of manufacturing liquor capable of producing intoxication, and his punishment assessed at confinenient in the penitentiary for a term of one year.

The bills of exception, in this case are so qualified by the trial judge as to show no error. In addition to this, however, we may state that we have carefully considered the bills, and have reached the conclusion that without the court’s qualification there is nothing contained therein that would warrant this court in reversing the case.

As illustrative, we refer to bill No. 1, which complains of the court’s action in asking the witness Eowler certain questions over the objection’ of the defendant. This bill fails to show that the witness answered the questions or what his answers thereto were.

Bill No. 2 complains because the witness Eowler was permitted to state that the defendant told the peace officers that they could go ahead and search the place. There are no facts set out in this bill that would indicate that tMs testimony could have in any wise .been harmful to the appellant. The mere statement that the appellant gave his permission to search the premises in the absence of a showing by the bill to the contrary might indicate that the appellant had no guilty knowledge of the premises being used for an unlawful purpose.

What has just been said with reference to bill No. 2 also applies to bill No. 3. The rule, generally, is that statements made by a party under arrest are not admissible, but there are some well-known exceptions to this i-ule, and.it is incumbent upon a party seeking to invoke this rule to show that the testimony objected to does not come within any of the exceptions, and this bill fails to in any manner comply with this requirement.

Bill of exception No. 4 complains at the court’s failure to instruct a verdict of not guilty. We think this instruction was properly refused.

Bill No. 5 complains at the court’s action in refusing to require the state to elect on which count it would proceed after the state had closed its testimony and before the defendant had offered any evidence. In qualifying this bill, the court states that the evidence introduced by the state, in the judgment of the court, sustained both counts in the indictment, and that udder the laws of Texas, and the testimony offered in the ease, the state was entitled, if it desired, to have both counts submitted to the jury in an appropriate charge. We think the court’s ruling in the matter was not reversible error, for, while it is true that an appellant can only be convicted in a felony case on one count, it is nevertheless true that the court can submit to the jury, if the evidence justifies it, more than one count, and his rights were fully protected, as the jury was properly instructed that a conviction could be had only on one count. This was the procedure followed in this case, and we think there was no reversible error shown in the matter.

In our opinion, the facts are sufficient to support the verdict, and, there being no error in the record, the judgment should be in all things affirmed.

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.

BATTIMORE, J.

The rules of practice in this state seem to require that a bill of exceptions complaining of the asking of a question or questions, in order to be sufficient, must not only state that the questions were answered, but must go further and state what answers were given. A bill of exceptions not showing what the answers were would be insufficient.

Further complaint is made of the fact that the evidence in this case was not sufficient to justify conviction. The state’s testimony showed that upon the occasion of a raid on appellant’s premises the officers found in the kitchen what they declared to be a complete apparatus for manufacturing intoxicating liquor, and they said that the boiler was hot and the liquor was dripping. There was no one at or about the house except appellant and his wife. This being the condition of the record, we think the jury justified in accepting the testimony of the staté witnesses, and the motion for rehearing will be overruled. 
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