
    SIMS v. STATE.
    (No. 7739.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1923.
    Rehearing Denied Feb. 13, 1924.)
    1. Criminal law @=>1.091(11) — Bills of exception in question and answer form not; eonsid- ' ered.
    
      i Bills of exception in question and answer form do not require consideration.
    2. Witnesses @=>277(2) — Cross-examination of accused as to matters affecting his knowledge of liquor transported held proper.
    Where defendant, charged with transportation of intoxicating liquor, has denied knowledge of the nature of the liquid which he was transporting, and ’claimed to be transporting it for another, cross-examination disclosing that he had previously obtained from such other intoxicating liquor, and knew that he was engaged in its illicit manufacture, helé proper.
    3. Criminal law @=>369(6) — Proof of transportation of liquor on more than one occasion held not within rule against proof of other offenses.
    In a prosecution for transporting intoxicating liquor, proof by the state of transportation on more than one occasion is not within the rule rejecting evidence of other offenses.
    4. Criminal law @=>370 — Evidence of transportation on other than occasion charged held admissible.
    In a prosecution for transporting intoxicating liquor,’where defendant has denied knowledge of the nature of the liquor which he was transporting, evidence of transportation on other occasions, admissible on the issue of defendant’s guilty knowledge, is not incompetent because such other offenses are not shown to have occurred within the period of limitation.
    5. Criminal law @=>918(19, 11) — Consideration by jury of evidence of offense other than charged held not grounds for new trial.
    In a prosecution for transporting intoxicating liquor where evidence of an offense other than the one charged has been properly admitted, and no demand made upon the state to elect between them, the fact that the jury considered both transactions is not grounds for a new trial.
    6. Criminal law @=>957(1) — Verdict may not be impeached by testimony of jurors as to use made of evidence.
    The verdict of a jury may not be impeached by testimony of the jurors showing what use was made by them of testimony legally before them.
    7. Criminal law @=>726 — Argument of counsel held not erroneous where invited.
    In a prosecution of one of two persons found transporting intoxicating liquor, a statement of counsel that, if defendant was convicted, the other party would be tried the following day, held not' erroneous where such remark was invited by’argument of defendant’s counsel.
    On Motion for Rehearing.
    8. Criminal law @=>374 — Evidence held to warrant conclusion that proven transactions were within period of limitation.
    In a prosecution for transporting intoxicating liquor, testimony of defendant that he had known one who was arrested with him “something like six or eight months” -held to warrant the conclusion that other transactions proven on the issue of defendant’s guilty knowledge had occurred within the period of limitation.
    9. Criminal law @=>683(1) — Testimony by defendant held to render admissible proof of prior offenses.
    In a prosecution for transporting intoxicating liquor, testimony by defendant that he was a mere hireling, did not know the nature of the liquor transported, had no connection with it or the still, and had never participated or had anything to do with the operation of a still by another arrested with him, held to render admissible evidence of prior purchases by him of intoxicating liquor from the party with whom he was arrested.
    Appeal from District Court; Clay County ; H. R. Wilson, Judge.
    Bill Sims was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Affirmed.
    Donley Suddath and Taylor & Taylor, all of Wichita Falls,-for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Appellant and one Dave Porter were traveling along a public road in a wagon containing a still, several barrels, and three gallons of whisky. The offense was laid on or about August 18, 1922. The proof showed. without contradiction, that about that date the appellant conveyed in, his wagon several gallons of whisky, a still, several barrels, and other equipment suitable for the inanu: facture of whisky. The conveyance was made from the home of the witness Porter, which was on the so-called Chapman place, several miles from the city of Henrietta. The articles were brought by appellant to the city of Henrietta late in the nighttime.

In his testimony appellant disclaimed any knowledge of the fact that the packages contained whisky, and claimed that he had been hired by Porter to transport the articles mentioned.

Porter testified that the property belonged to appellant, and that through appellant’s influence he became engaged with him in the illicit manufacture of whisky.

On cross-examination appellant testified that on a previous occasion he had gone to the abode of Porter, when he resided in a different locality, though in the same county, and had obtained from him a gallon of whis--ky, also smaller amounts, and had transported them to his home some 16 miles distant; that at that time he was aware that Porter was engaged in the illicit manufacture of whisky. Objection to this cross-examination was made, but the,bills are in question and answer form; and for that reason.are not in a condition to'require consideration. If con-siftered, however, they are deemed without merit. By his own testimony appellant made relevant testimony which would show his guilty knowledge of the unlawful nature of the liquid which he transported from the Chapman place, and upon such issue his previous acquaintance with Porter and tjie nature of the transaction with him was competent.

The fact that the state proved more than one occasion on which appellant transported intoxicating liquors was not within the rule rejecting evidence of other offenses. Either transaction was available to the state. It, having introduced evidence of more than one, might have required an election by it if a demand for it had been made. The contention that the evidence was incompetent because not shown to have fallen within the period of limitation cannot be sustained for the reason that, as above indicated, the evidence was admissible on the issue of appellant’s guilty knowledge. Its receipt was admissible for the additional reason that, from Porter’s testimony touching the time he moved into the .community, and appellant’s testimony that the transaction was subsequent to such removal, there is evidence which would authorize a finding that both transactions occurred within the limitation period.

? In the motion for new trial the point is made that in their deliberations the jury considered both transactions. No reason is perceived why they should not have done so. The evidence of both was competent, and •there was no demand made upon the state to elect between them.

We will add, however, that it was not permissible to impeach the verdict of the jury by testimony of jurors showing what use was made of testimony legally before them. Such an inquiry is not within the scope of the statute- on misconduct of the jury. Turner v. State, 61 Tex. Cr. R. 103, 133 S. W. 1052; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Bridges v. State, 88 Tex. Cr. R. 61, 224 S. W. 1097; Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695.

The bill complaining of the remark of counsel for the state to the effect that, if appellant was convicted, Porter would be tried on the following day, as qualified, shows that the remark was invited by the argument of appellant’s counsel.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, X

In his motion for rehearing appellant seriously questions the correctness of certain conclusions and statements in our original opinion. He urges that the evidence does not justify the statement that the other “transactions occurred within the limitation period.” We think appellant has overlooked the fact that he testified himself that he had known Porter “something like six or eight months.” All the transactions were between appellant and Porter. It is not likely they occurred before appellant knew him, and the ’inference is justified that they occurred not only within the period of limitation, but within the last six or eight months.

We said that by appellant’s own testimony he made relevant certain evidence introduced by the state. This statement is questioned. The record shows that before the state ever made proof of any of the facts objected to by appellant he had testified, and on his direct examination asserted, that he had no knowledge of the' presence of the whisky in the wagon; that he owned no interest in the still or whisky found in the wagon; that he had no connection with the whisky and still other than hauling it as a hireling for Porter; that he did not help make the whisky, and was not present when any of the liquor was made; that he had heard a still was being operated out there, but never had anything to do with it; that he was never present when any liquor was manufactured. The state was not required to sit silently by and let these assertions go unquestioned. It could combat them upon cross-examination of appellant, or by the evidence of any witness who knew facts to the contrary.

We have said this much because the matters were adverted to in our original opinion when the whole subject could very properly have been disposed of by refusing to consider the bills because they were in question and answer form.

The motion for rehearing is overruled.  