
    PEASLEY v. STATE.
    (No. 9317.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.
    Rehearing Denied Jan. 13, 1926.)
    1. Criminal law &wkey;>374 — Refusal to permit defendant to prove verdict' of not guilty rendered against him in other cases not error.
    In liquor prosecution, exclusion of proof that a verdict of not guilty had been rendered in other liquor cases against accused held not erroneous, where testimony concerning such offenses was not elicited by state, and trial was subsequent to offense for which defendant was being tried.
    2. Intoxicating liquors &wkey;>239(2) — Refusal of charge relating to defendant’s possession of intoxicating liquors not error, where only contested issue was whether defendant had liquor for sale.
    Refusal to charge that if intoxicating liquor had been in defendant’s possession for two years or longer he should' be acquitted held not error, where only contested issue was whether defendant had liquor for sale and this question was fairly submitted.
    3. Criminal law <&wkey;-202(3) — Plea of former jeopardy in liquor prosecution held properly denied.
    In liquor prosecution, plea of former jeopardy held properly denied, where former prosecutions were for sale of liquor other than that found in defendant’s possession.
    On Motion for Rehearing.
    4. Criminal law &wkey;>l 111 (3) — Reviewing tribunal not required to consult statement of facts to verify judge’s-statement.,
    Reviewing tribunal is not required to consult statement of facts to verify judge’s stater ment, in qualifying bill of exceptions.
    5. Criminal law <&wkey;l'092(ll) — Defendant should object to change in bill of exceptions by judge and reserve his bill thereto.
    If bill of exceptions is modified or changed by trial judge, and revision of his action in that regard is desired, defendant should object to change and reserve his bill to alteration of bill as prepared by him.
    6.Criminal law &wkey;>l092(11)— Qualification of defendant’s bill of exception by trial judge conclusive.
    Qualification of defendant’s bill of exception by trial judge held conclusive, where no exception was reserved to court’s action.
    Commissioners’ Decision.
    Appeal from District Court, Orange County; V. H. Stark, Judge.
    C. W. Peasley was convicted of possessing liquor, and he -appeals.
    Affirmed.
    Ho'wth, Adams & Hart and John T. Hitching, all of Beaumont, for appellant.
    Sam D. Stinson, State’s Atty., of Austin,, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the district court of Orange county for the offense of possessing liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

Appellant complains at the court’s action in refusing to permit him to prove that a verdict of not guilty had been rendered: against him in two other liquor cases, wherein appellant claims the state had shown that he had been previously indicted. In other words, it was appellant’s contention, as manifested by his bills of exception, that, as the state had shown that he had been indicted for other offenses, it was his right to show that he had been acquitted therein. The difficulty -about appellant’s contention is that the court qualifies his bills by stating that the testimony concerning the other offenses was elicited by defendant and not by the state, and that the trial and its results were not a part of the transaction in this case, but was an event happening subsequent to the offense for which he was being tried. These bills, -as qualified by the court, fail to show any error.

By another bill of exceptions appellant complains because the court refused to instruct the jury that if they believed the intoxicating liquor found on the premises of the-defendant on or about the date alleged in the indictment had been in the possession of defendant for two years or longer prior to said date alleged in the indictment, or if the jury had a reasonable doubt about the same, to acquit the defendant. The appellant, while testifying in his own behalf, stated that the only explanation he could give for the presence off the liquor in the barn was the fact that it may have been left there some two years before, when he -admits that he had handled liquor, but that he had paid the penalty for that offense in the federal court. On this-testimony appellant contends that the charge above mentioned should have been given. We-cannot agree with this contention. The question of how long appellant had had the liquor in his possession was not material if the jury believed that on or about the time alleged in the indictment he had it for the purpose of sale. In fact, we think there was but one contested issue in the case, and that was, did appellant have the liquor for the purpose of sale. His possession of it was undisputed. The question as to his purpose in having it was fairly submitted to the jury by the court in his main charge. The jury was affirmatively told that if they should find that the defendant had in his possession the whisky in question, but should further find that same was not had for the purpose of sale, or if the jury had a reasonable doubt thereof, to acquit the defendant. This charge, we think, covered every right that appellant had with respect to his purpose in having the whisky in his possession.

We regret that-we cannot agree with appellant’s contention with respect to his plea of former jeopardy. The bill of exceptions presenting this matter is qualified by the learned trial judge to the effect that each of the former prosecutions were for the sale of liquor, none of which was the three bottles of whisky found in the defendant’s trunk. This case was predicated on the possession of three bottles found in appellant’s trunk. Under the explanation of the trial court, the bill of exceptions shows no error.

We have examined the statement of facts, and are convinced that the verdict of the jury is amply supported by the testimony, and, finding no error in the record, it is our opinion that 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.

BERRY, J.

Appellant, in his motion for rehearing, claims that we erred in the second paragraph of the opinion in accepting the court’s qualification of the bill there discussed, because appellant claims that the qualification of the trial court is not supported by the facts. Appellant concedes that the trial court qualified the bill as stated by us, but submits the proposition that:

“Statements in the qualification to a bill of exceptions by the trial judge will not be considered where same are not borne out by the record.”
“We are not required to consult the statement of facts to verify the judge’s statement.” Burt v. State, 38 Tex. Cr. R. 436, 40 S. W. 1002, 139 L. R. A. 305.

Mr. Branch states the rule correctly as follows:

“If the bill of exceptions is modified or changed by the trial judge, and a revision of his action in this regard is desired, defendant should object to the change, and reserve his bill to the alteration of the bill as prepared by him. Blain v State, 34 Tex. Cr. R. 450, 31 S. W. 368; Slatter v. State, 61 Tex. Cr. R. 245, 136 S. W. 770; Johnson v. State, 61 Tex. Cr. R. 635, 136 S. W. 259; Perry v. State [69 Tex. Cr. R. 644], 156 S. W. 263.”

See 215 Branch’s Annotated Texas Penal Code.

No exception was reserved to the court’s qualification of the bill. We also think the other questions raised by appellant were correctly solved in the original opinion.

Appellant’s motion for a rehearing is accordingly overruled.

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. 
      
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