
    CARRELL v. STATE.
    (No. 11308.)
    Court of Criminal Appeals of Texas.
    Jan. 11, 1928.
    Rehearing Denied March 14, 1928.
    1. Criminal law <&wkey;l 111 (3) — Trial judge’s qualification of bill of exceptions will control, in so far as it conflicts with appellant's bill.
    In criminal prosecution on appeal, trial judge’s qualification of bill of exceptions will control reviewing court, in so far as it is in conflict with bill as prepared by defendant’s counsel.
    2. Criminal law <&wkey;394 — On failure to show sheriff lacked authority to arrest defendant, any act committed' by him, res gestee of arrest, showing intent to suppress evidence of crime, is admissible.
    Where bill of exceptions as qualified by trial judge showed only objection to evidence of arrest and what transpired thereafter for lack of valid search warrant and warning, in view of fact that such bill failed to show sheriff was without authority to arrest defendant without warrant, under Oode Or. Proc. 1925; arts. 212-217, any act committed by defendant, res gestas of the arrest, and showing intent to suppress evidence of crime, would be admissible.
    3. Criminal law <&wkey;394 — Evidence showing defendant, contemporaneously with arrest broke containers of whisky, objected to because of lack of valid search warrant and warning, held admissible, as res gestae.
    On appeal from conviction for possession of intoxicating liquor for purpose of sale, where bill of exceptions as qualified by trial court showed defendant objected to evidence of arrest or what transpired thereafter for lack of valid search warrant and warning, in view of fact that defendant might have been legally arrested without warrant, under Oode Cr. Proc. 1925, arts. 212-217, evidence showing that defendant broke several containers of whisky contemporaneously with arrest, and as part of res gestae thereof, held admissible.
    4. Intoxicating liquors <&wkey;239(l) — instruction that possession of over quart of intoxicating liquor is prima facie evidence of guilt, subject to explanation, held proper.
    In prosecution for possession of intoxicating liquor for purpose of sale, instruction that possession of more than one quart of intoxicating liquor is prima facie evidence of guilt, but defendant has right to introduce evidence showing legality of possession, considered with definition of prima facie evidence as meaning merely proof of case on which jury might find verdict, unless rebutted by other evidence, held proper on issues as to whether defendant possessed intoxicating liquor in excess of one quart, and whether circumstances overcame presumption of innocence.
    On Motion for-Rehearing.
    5. Criminal law <&wkey;814(l7) — In prosecution for possession of intoxicating liquor, charge on circumstantial evidence held unnecessary, in view of direct evidence.
    In prosecution for possession of intoxicating liquor for purpose of sale, direct evidence showing guilt held sufficient to render charge on law of circumstantial'evidence unnecessary.
    Appeal from District Court, Dawson County; Gordon B. McGuire, Judge.
    Troy A. Carrell was convicted of the possession of intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    Rogers & Starnes, of Bamesa, and Dock-hart & Garrard and E. D. Brown, all of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year.

Erom the evidence the following appears: Some time before his arrest appellant had been observed around town by the sheriff, who later saw him at the stock pens. From the sheriff’s testimony we quote:

“I drove up to Mr. Carrell’s car where he was stopped and got out of the car and walked around by his car and told him that he was arrested. At the time I saw the defendant there, I saw something in his possession in the way of liquid of some kind. I seen it when Mr. Carreli got out of the car. He came out of the car with a couple of fruit jars. I didn’t see any fruit jars until after I told Mr. Carrell he was under arrest. I saw the defendant with some liquor on that occasion. He hit the two fruit jars on the running board of the car, took them out and popped them together. That was after I drove up and stopped. ⅝ * * He broke these fruit jars as he got out of the car. They were one-half gallon jars; looked like one-half gallon jars. They were full, each one of them. I could see them plain; I was in plain view. I also saw him take a quart bottle out of the side pocket of the door and break it over the fender. It was a quart bottle; looked to be a quart, and it was plumb full.”

The sheriff gave testimony justifying the conclusion that the liquid in the containers was whisky.

The bills of exceptions ¿re numerous. In the first bill complaint is made of the receipt of testimony, the substance of which is quoted above. Erom the bill it appears that the sheriff was possessed of no capias or search warrant and that the arrest was made without a warrant. Upon these reasons objection was urged against the receipt of the testimony. In qualifying the bill the judge declares that the only objections made to the testimony were the following:

“We object to any evidence of any arrest without showing a valid search warrant, and we object to a'ny evidence of what transpired after the defendant was placed under arrest, and after the sheriff advised him he had been arrested, because there was no valid search warrant shown, and the further reason that there was no warning given to the defendant.”

The qualification of the bill will control the reviewing court, in so far as it is in conflict with the bill as prepared by the appellant’s counsel, from which it follows that the objections last quoted from the judge’s qualification of the bill are the only objections that can be considered upon appeal. So far as we are informed by the bill, the arrest of the appellant may have been justified under the statutes permitting an arrest without a warrant. See Code Cr. Proc. 1925, tit. 5, c. 1. Under these, an arrest without warrant may be made when a felony or offense against the public peace is committed in the presence of an officer, or in the view of a magistrate who verbally orders the arrest, or where it is shown to a peace officer, upon the representation of a credible person, that a felony has been committed and that the offender is about to escape. The bill failing to show that the sheriff was without authority to arrest the appellant, any act committed, by him, res ges-te of the arrest and which manifested an intent to suppress the evidence of crime, would become admissible. Upon the principle just stated, the evidence revealing the conduct of the appellant in bfeaking the several containers which were filled with whisky is not shown by the bill to have been improperly received. It was contemporaneous with and res geste of the arrest and within a class of acts of one accused of crime held, under such circumstances, admissible as tending to show intent or consciousness of guilt. See Klein v. State, 102 Tex. Cr. R. 256, 277 S. W. 1074, and cases therein collated; Underhill’s Crim. Ev. (3d Ed.) §§ 202, 203.

Paragraphs 3 and 4 of the court’s charge are as follows:

“Under the law of this state proof of the possession of more than one quart of intoxicating liquor shall be prima facie evidence' of guilt, but the defendant shall have the right to introduce evidence showing the legality of such possession.
“By the term,‘prima facie evidence’ as here-inbefore used, is meant not that the evidence is conclusive of guilt, but that it is merely proof of the case upon which the jury may find a verdict, unless rebutted by other evidence. In other words, prima facie evidence is not conclusive, and such evidence is to be weighed together with the other evidence, and in connection with the reasonable doubt and presumption of innocence which obtain in all criminal trials.”

There were directed at the court’s charge several objections based upon the paragraphs quoted above, asserting that they shifted the burden of proofs; that they offended against the rule permitting the appellant to remain silent and stand upon the presumption of innocence ; that they were not upon the weight of the evidence. In that connection there was presented a special charge to the refusal of which complaint is made in bill No. 6. It is not deemed necessary to embrace in this opinion a copy of this special charge. Suffice it to say that the instructions quoted above appropriately and sufficiently covered the issues presented, namely, whether the appellant possessed intoxicating liquor in excess of one quart, and whether the circumstances attending the possession of it overcame the presumption of innocence.

The bills complaining of the remarks of the district attorney are so qualified by the trial judge as to render a discussion of them unnecessary.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

It is contended in this case that there was no direct testimony sufficient to make out a case, and that the court should have submitted the case on the theory of circumstantial evidence. Reviewing the record, we observe that-the sheriff saw appellant driving a car. In the sheriff’s testimony he speaks of this car as “Mr. Garrell’s car.” Later and at another place the sheriff saw appellant sitting in the car, and when the officer approached appellant broke two jars of whisky that were in the car. If any one else was in said car at the time, it is not so disclosed. The quantity of liquor in possession of appellant was more than a quart. We deem these facts súfficient to support the conclusion of guilt, and that it was not necessary for the court to charge on the law of circumstantial evidence.

The motion for rehearing will be overruled. 
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