
    WEBB v. STATE.
    (No. 9132.)
    (Court of Criminal Appeals of Texas.
    May 27, 1925.)
    1. Criminal law &wkey;> — 369(6)—Testimony as to finding still in house near defendant’s residence held admissible in prosecution for possession of liquor.
    In prosecution for possession of intoxicating liquor for purposes of sale, where defense was possession for medicinal purposes only, testimony of officer that a short time before search of appellant’s house a still was found in operation in a house not far from defendants’ residence, and a well-beaten path between, was admissible over objection that tes-mony was of something that occurred at á different time and place from that set out in indictment.
    2. Criminal law &wkey;>369(6) — Testimony as to similarity of liquor and bottles found in defendant’s possession to those previously seized at still held admissible.
    In prosecution for possessing intoxicating liquors, testimony of officer that a few nights prior to defendant’s arrest witness found in a house, some 80 feet'from defendant’s residence, and connected thereto by a well-beaten path, a still making corn whisky of the kind found in defendant’s possession, and bottles of a peculiar kind found also in appellant’s residence, was admissible.
    3. Criminal law <&wkey;829(4) — Special charge properly refused, where covered' by main charge.
    In prosecution for possessing liquor for purpose of sale, speciál charge as to possession for medicinal purposes was properly refused, because covered by main charge.
    4. Criminal law <®=»l 122(6) — Refusal of special charge not error, in absence of showing of proper presentment.
    Error cannot be predicated on refusal of special charge, in absence of showing that it was presented at any proper time or manner.
    Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    Willis Webb was convicted of possessing intoxicating liquor, and he appeals.
    Affirmed.
    
      Blain & Jones, of Beaumont, 'for appellant.
    Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. Stated Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in district court of Jefferson county for possessing intoxicating liquor for purposes of sale; punishment one year in penitentiary.

Pour bills of exception were reserved. It appeared that a short time before the search of appellant’s house which revealed the presence of a forbidden quantity of intoxicating liquor officers had found a still in a house not far from the residence of appellant. The testimony showed that a plain, well-beaten path led from appellant’s house to .the house in which the still was located. Bill of exceptions No. 1 complains of a question tb witness PolloGk as follows: “What, if anything, did you find in that house that you said the trail led to?” The witness,' over objection, was permitted to state that he found a still in operation. The objection appearing in the bill seems to be that it called for testimony of something that occurred at a different time and place from that set out in the indictment as being the date of the possession for the purpose of sale of the liquor charged in the instant indictment. We think the testimony admissible. If we understand the defensive theory, it was that appellant had purchased the quantity of whisky found on his premises for medicinal purposes, and that he did not have it or make it nor was he in any wise connected with it for the purpose, of sale. To, rebut this defensive theory the state proved appellant’s destruction of the large jug of whisky found, and, the case being dependent upon circumstantial evidence, we think it proper to connect him by circumstances with the manufacture of liquor in the house where the still was in operation; said house being located some 80 feet from the residence of appellant.

Bill No. 2 complains • of testimony of the officer that a few nights prior to the time appellant was arrested he went to a house near that of appellant’s, to which a plain path went from the home of appellant, and, there found a still making corn whisky; that being the kind of liquor found in appellant’s possession by the officers on the occasion of the search of his house a few nights after the finding of the still. We think this testimony ¿dmissible.

The bill complaining of the introduction of evidence of the fact that in appellant’s house and in the house where the still was in operation were found a number of empty bottles of a peculiar kind presents no error. The evidence was admissible as a circumstance tending to show the purpose for which appellant had the whisky in his po-session and for which it was being manufactured.

The remaining bill of exceptions complains, of the refusal of the court to sustain appellant’s motion to strike out the testimony which had been received over objection under the circumstances detailed above. It follows that we think the court did not err-in overruling the motion to strike out.

Appellant’s special charge No. 2, defining prima facie evidence, was given. Appellant’s special charge No. 3, attempting to-set forth grounds upon which the appellant, should be - acquitted if he possessed the liquor for medicinal purposes, was properly refused because covered by the main charge of the court. Special charge No. 4 seems to-have been given. Special charge No. 5 was-refused, but neither by anything appearing in the charge or any notation thereon, nor-by separate bill of exceptions, is it made to-appear that the charge was presented at any proper time or manner.

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