
    ALEXANDER v. STATE.
    (No. 9866.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.
    Rehearing Denied April 7, 1926.)
    1. Criminal law <&wkey;l028.
    Matter set up in bills of exception, relative to which no question was shown to have been asked, eannpt be considered on appeal.
    2. Witnesses <&wkey;48(5) — An unpardoned convict under statute has same right to testify as a pardoned one, provided he is not incarcerated in penitentiary at time of trial (Laws 1925, c. 27).
    Under Laws 1925, c. 27, an unpardoned convict has the same right to testify as a pardoned one, providing he is not incarcerated in the penitentiary at time of trial.
    On Motion for Rehearing.
    3. Criminal law &wkey;l 119(2) — Sustaining objection to question as to how choc beer was made held proper, where neither bill nor record showed witnesses were qualified to give testimony.
    In a prosecution for selling intoxicating liquor, objection to question, “Have you learned how choc beer is made, or do you know how choc beer is made?” held properly sustained, where there was nothing in bill of exceptions or in record to- show that witnesses to whom question was put were qualified to give testimony called for.
    Appeal from District Court, Grayson County ; E. E.' Wilcox, Judge.
    Bill Alexander was convicted of selling * intoxicating liquor, and he appeals.
    Affirmed.
    J. P. Cox, of Sherman, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty.,'of Tyler, for the State.
   LATTIMORE, J.

Conviction in district court of Grayson county for selling intoxicating liquor; punishment, one year in the penitentiary. ,

Appellant was convicted for selling choc 'beer. Two young men testified that they bought it from him on the occasion in question, and drank it, and that it made them drunk. Other witnesses who saw them on said occasion testified that they were drunk.

There are several bills of exception, all of which have been carefully examined. Bill No. 1 is wholly without merit. The question asked by the appellant, the rejection of whose answer by the court, upon objection by the state, is complained of in bills Nos. 3, 4, and 5, does not appear to be of any materiality. A number of other matters are set up in each one of said bills of exception, no question relative to which was shown to have been asked, and in such case we have no means of ruling upon the other matters beside the one involved in the question asked.

. [2] Bill of exceptions No. 6 complains of the admission in evidence of the testimony of an unpardoned convict. If we understand the provisions of the act of the Legislature of 1925 (Laws 1925, c. 27), an unpardoned convict has the same right to testify as a pardoned one, provided he is not incarcerated in the penitentiary at the. time of trial.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant renews his contention that by bills of exception Nos. 3, 4 and 5, complaining of the rejection of certain testimony offered by him, error was shown. Said bills show the state’s objection to an identical question propounded to three witnesses, viz: “Have you learned how choc beer is made, or do you know how choc beer is made?” A casual inspection of the form of this question thus asked makes it evident that a witness could not testify to the fact abstractly that he had learned how choc beer was made, or give the jury testimony setting forth what he had learned, unless claiming to qualify as an expert, which is not asserted to be true of any of said witnesses. One who had experience in the making of choc beer might give the desired' testimony. In fact we observe that a witness for the appellant did testify as to how choc beer was made, and how long it would take it to become intoxicating after the ingredients were mixed and set to ferment, and that, if said mixture had not been allowed to stand any longer than appellant testified the particular choc beer had stood after being mixed, it would not be intoxicating. The witnesses who partook of the liquor sold by appellant and involved in the instant transaction testified that it-was intoxicating and made them drunk. We further observe that one of the witnesses referred to in said bills of exception testified that he did not know how choc beer was made. Another of said witnesses testified that he only learned four or five days before the trial how to make choc beer. There is nothing in either bill or in the record to show that said witnesses were qualified to give the testimony called for by the rejected question.

This appears to be the only contention made by appellant in his motion for rehearing, and, being unable to agree therewith, said motion is overruled.  