
    KIMBROUGH v. STATE.
    (No. 8707.)
    (Court of Criminal Appeals of Texas.
    March 4, 1925.
    Rehearing Denied June 3, 1925.)
    1. Criminal law &wkey;>l090(l9) — Ruling on evidence and objections to charges must be preserved by bill of exceptions to authorize review.
    Complaints to ruling of court on evidence and charges given or refused must be preserved in bill of exceptions to authorize review, and mere recital in motion for new trial is not sufficient.
    2. Criminal law <&wkey;395 — Not error to receive in evidence seized liquor because seizure not recorded.
    It is not error to receive in evidence liquor taken possession of by officer on arrest of defendant because no record of seizure was kept as required by Acts 38th Leg. c. 117.
    3. Criminal law &wkey;M090(l3) — Complaint to counsel’s argument must be preserved in bill of exceptions.
    Complaint to argument of counsel is not available in absence of bill of exceptions.
    4. Criminal law &wkey;U 119(5) — Evidence heard before trial court necessary to review jury’s misconduct.
    To authorize a review on appeal of jury’s misconduct, the evidence heard before the trial court relative thereto is necessary.
    Appeal from District Court, Anderson County; Ben E. Dent, Judge.
    Dan Kimbrough whs convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    R. M. Johnson and P. S. Colley, Jr., both of Palestine, for appellant.
    Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The state’s witness is specific in testifying that he saw the appellant carry a sack com taining two quarts of whisky for a distance of a quarter of a mile; that upon the officer’s attempt to apprehend the appellant he fled, but finally surrendered when he was overtaken by the officer. While under pursuit the appellant dropped the sack containing the two bottles of whisky, and one of them was broken. The officer took, possession of the other, and the evidence shows without controversy that it was whisky.

There are no bills of exception in the record. Counsel in briefing the case discussed various matters, to raise which bills of exception are essential. The rulings of the court touching the admission and rejection of evidence, complaints of the charge, and the refusal- ofi special charges, to authorize review, must be preserved by bills of exception. A recital of them in the motion for new trial will not suffice. See Holloway v. State, 88 Tex. Cr. R. 126, 224 S. W. 1102; Watson v. State, 87 Tex. Cr. R. 189, 221 S. W. 329; Odom v. State, 82 Tex. Cr. R. 580, 200 S. W. 833; Taylor v. State, 62 Tex. Cr. R. 540, 138 S. W. 401; Vernon’s Tex. Crim. Stat. vol. 2, p. 537; also 1922 Supplement, p. 2510, note 20.

The point is made that there was error in receiving in evidence the bottle of whisky of which the officer took possession at the time of the arrest of the appellant, for the reason that no record was kept.of the seizure as required by chapter 117, Acts 38th Leg. Reg. Sess. The point is not tenable. See Austin v. State, 97 Tex. Cr. R. 360, 261 S. W. 1035.

The complaint of the argument of counsel is not available in the absence of a bill of exceptions.

In one. paragraph of the motion for new trial there is an averment to the effect that the jurors heard other testimony. There is also an averment that there was a reference in the jury room to the failure of the appellant to testify. The motion for new trial is not verified by the affidavit of the appellant. Evidence was heard by the trial court. To authorize a review in this court, the evidence before the trial court would be necessary.

Eluding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

Appellant attacks that part of the opinion on the original hearing in which it was said that the appellant claimed that the whisky taken from his possession was improperly received because there was a failure to show a compliance with the provisions of chapter 117, Acts of .the Thirty-Eighth Legislature. He insists that the ruling shown in the opinion in Austin v. State, 97 Tex. Cr. R. 360, 261 S. W. 1035, does not control, for the reason that in that case the bottle of whisky was not introduced, but merely the testimony of the sheriff. In this respect we are inclined to differ from the appellant. Inasmuch as there was no objection to the receipt of the whisky in evidence shown to have been made by bills of . exception, we should have refrained from discussing the matter in the original opinion. In the absence of a bill of exceptions, objections to evidence received are not to be reviewed. The authorities in the original opinion are conclusive upon this point. •

The motion is overruled. 
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