
    PLATTENBURG v. STATE.
    (No. 10819.)
    Court of Criminal Appeals of Texas.
    April 6, 1927.
    Rehearing Denied May 25, 1927.
    I.Criminal law <@=>l 115(1) — Motion to try one defendant first cannot he considered,' where record does not show its presentation to, or action thereon by, court, or reservation of exception.
    Motion to put one defendant on trial first cannot be considered on appeal, where record does not show that it was ever presented to, or acted on by, court, or that any exception was reserved.
    2. Criminal law &wkey;>l09l(4, 5) — Bills of exception to sustaining and overruling of objections to questions are insufficient, where not stating answers expected or elicited.
    Rills of exception to sustaining and overruling- of objections to questions are insufficient, where they do not state answers expected and elicited.
    3. Criminal law <&wkey;925¡/2(3)— Juror’s statements concerning defendant selling whisky held not ground for new trial as statements of facts not in evidence.
    Juror’s statements that it .was not the first time defendant had sold whisky and would not be- the last if they turned him loose held not ground for new trial as statements of new facts not in evidence, or of opinions based on previous knowledge; being mere statements of conclusions fairly deducible from evidence.
    On Motion for Rehearing.
    4. Intoxicating liquors <&wkey;23S(4) — Evidence held to support conviction of selling intoxicating liquor as against contention that defendant was purchaser’s agent.
    Evidence held to support conviction of selling intoxicating liquor as against contention that defendant was agent for purchaser.
    Appeal from District Court, Walker County ; Carl T. ..Harper,, Judge.
    Doc Plattenburg was convicted of selling intoxicating liquor, and he appe'als.
    Affirmed.
    R. T. Burns, A. T. McKinney, Jr., and M. E. Gates, all of Huntsville, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State. ’
   HAWKINS, J.

Conviction is for selling ■intoxicating liquor to one Thornton. Punishment is one year in the penitentiary.

What is called in the record bill of exception No. 1 is only a motion to put one Williams on trial first. If it was ever presented to or acted on by the court, the record does not show it. No exception appears to have been reserved relative to it if the court did act on it.

Bills 3, 4, and 5 are insufficient. Two of them complain because objections were sustained to questions asked by appellant’s attorney, but fail to state what answer was expected, and the other complains because the court permitted answer to a question to which appellant objected, but which likewise omits to set out the answer elicited.

Another bill complains that the jury received additional evidence after they retired to consider their verdict. The matter particularly complained of is that some one of the jurors said “if was not the first time appellant had sold whisky, and that it would hot be the last time if they turned him loose,” and that this same juror or another said appellant was “a bootlegger, and, if the jury turned him loose, he would sell whisky again before night,” or something to that effect. Eight of the jurors were examined upon the hearing of the motion for new trial. It appears from their testimony that,the jurors who used the expressions complained of were not acquainted with and had no previous knowledge of appellant. Only one man serving upon the jury knew appellant at all. After several of the jurors expressed their opinion that appellant was a bootlegger, this juror said he had been knowing appellant a good long while, that he might be a bootlegger, but, if so, he (the juror) did not know it. It is perfectly clear from the testimony that the jurors were not stating a fact or even expressing an opinion based upon any previous knowledge they had with reference to appellant, but only stating their conclusions which could be fairly drawn from the evidence. Thornton, the party to whom appellant is alleged to have sold the whisky, testified that appellant approached him and asked if he was looking for some whisky and told witness that he (appellant) would “hustle” some for him; that appellant went away and ■brought a quart of whisky back, which witness bought. Upon further cross-examination, the witness stated that he had been down by, the—

“stoekpen' five or ten minutes, just a few minutes, there I met the defendant, Doe Platten-burg. He walked up to me and said that he heard that I was wanting some whisky. No, sir; I was not down there inquiring and asking different people to get me some whisky. I don’t know how he heard that or where he got the information. I don’t know who told him. Yes, sir; the truth is that I was there trying to buy liquor.”

From the conduct of appellant, the jurors were justified in expressing the opinion complained of. The same could not be characterized as a statement of a new fact not in evidence.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Appellant challenges the sufficiency of the evidence, claiming that his relation with the transaction was one of agent for the purchaser and that he was neither a seller nor an agent of the seller. These questions were submitted to the jury in an unobjectionable way, and the state’s evidence supports the verdict. The witness Thornton testified that he bought a quart of whisky from the appellant and paid him $3 for it. According to the witness, he was approached by the appellant and asked if he was looking for whisky. Receiving an affirmative answer, appellant said that he would get it. The appellant then got a quart of whisky and brought it to the witness, for which he received $3. The appellant claimed to have procured the whisky from Walker for Thornton. Two other witnesses, the sheriff and his deputy, overheard a conversation between the appellant and Thornton, and their testimony supports the state’s theory.

The other questions raised in tbe motion were discussed in the original opinion, and in our opinion the proper disposition of them was there made.

The motion is overruled. 
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