
    WALLACE v. STATE.
    (No. 8323.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Rehearing Denied Feb. 10, 1926.)
    1. Witnesses <&wkey;-244 — Permitting leading questions to hostile witness on direct examination, discretionary.
    If a witness is hostile, unwilling, or reluctant, it is discretionary to permit leading questions on direct examination.
    2. Intoxicating liquors &wkey;>236(ll) — Evidence held sufficient to support conviction of sale of intoxicating liquor.
    Positive testimony of purchaser of intoxicating liquor, as an unwilling witness, that he purchased whisky and paid for it by cheek, which he thought he delivered to defendant, and testimony of officers, who saw witness deliver check and heard defendant’s statements, held sufficient to sustain conviction of sale thereof.
    3. Criminal law <&wkey;i 053 — Matters not made the subject of exception are not reviewabie.
    Comments on action of trial judge during examination of state witness, which were not made subject of exception, are not reviewabie.
    On Motion for Rehearing.
    4. Criminal law <&wkey;I064(6) — Alleged misconduct of trial judge not considered where urged first on appeal.
    Where there was no exception to alleged misconduct of trial court, nor was it mentioned in motion for new trial, it cannot be considered when urged for first time on appeal.
    Appeal from District Court, Stephens County; Walter F. Schenck, Judge.
    R. W. Wallace was convicted of sale of intoxicating liquor, and he appeals.
    Affirmed.
    Benson & Dean, of Breckenridge, and Wright Morrow and Chas. L. Black, both of Austin, for appellant.
    
      Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor to one Ashemore, with punishment assessed at two years in the penitentiary.

The only hill of exception in the record complains of the court’s action in permitting the state to propound to Ashemore leading questions. The bill shows that this character of examination was permitted because the, witness was hostile to the state. If a witness is hostile, unwilling, or reluctant, it is within the sound discretion of the court to permit leading questions on direct examination. Navarro v. State, 24 Tex. App. 378, 6 S. W. 542. Por collation of other authorities, see section 158, Branch’s Ann. P. C. It occurs to us that the witness revealed all the characteristics which permit leading questions.

The only other question raised is that the evidence is not sufficient to support the conviction. Our examination of it leaves no such impression. It is patent that the alleged purchaser was an unwilling witness, and it was with difficulty the state elicited his evidence; but it is positive to the point that he purchased whisky and paid for it by cheek, which he says he thinks was delivered to appellant. A woman was present and took part in the transaction. The evidence supports the theory that she and appellant were acting together as principals in the sale. Two officers who were outside the house saw Ashe-more write a check and deliver it to appellant, and heard Ashemore say to appellant “Now, save me another pint for to-morrow morning,” to which appellant replied, “All right, I will have it for you.”

Some mention is made in appellant’s brief of certain comments and action of the learned trial judge during the examination of Ashemore. These matters were not made the subject of exception, hence are not reviewable.

The judgment is affirmed.

On Motion for Rehearing.

Appellant’s motion for rehearing is devoted principally to alleged misconduct of the trial judge. This matter is not presented in a manner calling for review. The only bill in the record brings forward the leading questions complained of, and also reveals in connection therewith statements of the judge which are now for the first time criticized. In conclusion the bill-recites: “To which ac- ¡ tion of the court in overruling the defendant’s objection to the leading questions the defendant then and there excepted,” making no reference to any misconduct of the court in connection with ruling on the objections.

No such alleged misconduct was even mentioned in the motion for new trial. We regret that under the condition of the record we cannot consider complaint now urged for the first time in this court.

The motion for rehearing is overruled. 
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     