
    HORAK v. STATE.
    (No. 8930.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied June 17, 1925.)
    1. Criminal law <§=>l 104(2) — Failure of caption of transcript to show day on which trial term began held not to require dismissal.
    Where appeal was perfected within the 60 days granted, failure of caption of transcript to show day upon which trial term began held not to require dismissal, being immaterial.
    2. Intoxicating liquors <§=¿>236(19) — Evidence • held to sustain conviction for manufacturing liquor.
    In rosecution for manufacturing intoxicating liquor, claimed by accused to be for medicinal purposes, evidence held to sustain conviction.
    3. Criminal iaw,<§=>l 120(3) — Exception to exclusion of answer of witness not considered in absence of showing as to what answer would have been.
    Exception to exclusion of answer of witness will not be considered on appeal, in absence of showing in bill of exceptions as to what answer would have been:
    On Motion for Rehearing.
    4. Intoxicating liquors <§=>238(1) — Failure to rebut, by direct proof testimony, that whisky was for medicinal purposes held not to require acquittal.
    In prosecution for manufacture of intoxicating liquor, failure of state to rebut, by direct proof testimony of accused and his wife, that whisky was being manufactured for medicinal purposes held not to require acquittal, jury not being bound to accept evidence as true.
    Appeal from District Court, Milam County; John Watson, Judge.'
    Gabriel Horak was convicted for manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    
      B. P. Matocha, of Cameron, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS', J,

Conviction is for manufacturing intoxicating liquor. Punishment is pne year in the penitentiary.

We think the state’s motion to dismiss the appeal, because the caption to the transcript fails to show the day upon which the trial term began, should not be sustained. The caption does show the adjourning date. The beginning date might be material, if consideration of the statement of facts or bills depended upon whether the trial term extended more or less than eight weeks, but that question is immaterial in the present instance. Pinal judgment was entered on April 16th. Sixty days were granted to perfect the record. The statement of facts and the only bill of exception were filed on June 13th, which was within the 66 days from final judgment, and would entitle them to consideration regardless of whether the term of court was more or less than eight weeks.

This is the second appeal. The opinion on the first is reported in 95 Tex. Cr. R. 474, 255 S. W. 191.

The ofiicers went to defendant’s premises with a search warrant. He was in the field. The sheriff told him they came to search for whisky. He denied having any. Upon going to his residence they found two stills, each of five-gallon capacity on the §tove, and both in operation. In addition to the liquor in the stills, three 50-gallon barrels of mash were found, one at the side of the house and two at the barn. Some whisky was also found. Some of it was colored and some white. Defendant claimed on the trial he was malting the whisky for his own use for medicinal purposes under the doctor’s advice. At the time of his arrest, defendant made a written confession admitting the making of the liquor, but made no claim at that time he was using it for medicine. He proved by two physicians that about two years before his arrest defendant had the “grippe,” and they told him a small quantity of whis-ky taken after meals would help him, but neither wrote him a prescription for any. Defendant and his wife testified that the whisky was being made and Used only for medicine. This issue was submitted to the jury in a manner not objectionable to accused. The jury settled it in favor of the state. We observe nothing in the record authorizing this court to say they were not justified in the conclusion reached.

Defendant asked his wife if he (defendant) ever became intoxicated. Complaint is made because the court excluded the answer ; but the bill fails to show what such answer would have been. A bill taken to the. refusal of the court to permit a witness to answer a question must show what the answer would have been in order to entitle it to consideration on appeal. See collated authorities under paragraph 4, § 212, Branch’s Ann. P. C.

The judgment is affirmed.

On Motion for Rehearing.

Appellant insists that because he and his wife testified the whisky was being manufactured for medicinal purposes, and the state could not rebut this by direct proof, this court should hold that the jury were bound to accept the evidence of appellant and his wife as true. This exact point was decided adversely to appellant’s contention in Hawkins v. State (No. 8599, opinion on rehearing, April 8, 1925) 270 S. W. 1025. Many authorities are cited in the opinion just referred to.

The motion for rehearing is overruled. 
      <gs»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     