
    TUCKNESS v. STATE.
    (No. 9299.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.
    On the Merits, June 24, 1925.
    Rehearing Denied Oct. 28, 1925.)
    1. Criminal law >&wkey;l086(l3) — Reviewing tribunal without jurisdiction of appeal, where record failed to show sentence of defendant.
    Reviewing tribunal held without jurisdiction of appeal from trial court, in view of Vernon’s Ann. Code Or. Proc. 1916, art. 856, where record failed to show that defendant was ever sentenced.
    On the Merits.
    2. Criminal law <&wkey;l09l(ll) — Reviewing tribunal unauthorized to consider statement of facts in question and answer form.
    Reviewing tribunal held unauthorized to consider statement of facts made up in question and answer form, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 846.
    3. Criminal law <&wkey;l 144(1/2) — Reviewing tribunal required to presume that trial court committed no error, where record without proper statement of facts.
    Reviewing tribunal held, required to presume that trial court committed no error in trying case, where record is without a proper statement of facts; indictment, charge, verdict of jury, and judgment being regular.
    On Motion for Rehearing.
    4. Indictment and information. <&wkey;202(8) — Alleged duplicity of indictment not available after verdict, in absence of motion to quash previously ruled on.
    In liquor prosecution, alleged duplicity of indictment will not be available after verdict, in absence of motion to quash previously ruled upon.
    5. Intoxicating liquors <&wkey;222, 224 — State not required to allege or prove that liquor was not legally manufactured under exceptions in statute and Constitution.
    It is unnecessary, since enactment of Acts 37th Leg. (1921) 1st Called Sess. c. 61, § B, adding section 2b to Acts 1919, 2d Called Sess. e. 78 (Vernon’s Ann. Pen. Code Supp. 1922, art. 58S%a2), for state, in liquor prosecution, to either allege or prove that liquor was not ■legally manufactured by virtue of some of exceptions named in statute and Constitution.
    6. Criminal law ,&wkey;1184 — Reviewing tribunal can amend irregular judgment to conform to verdict.
    If judgment is deemed irregular, reviewing tribunal can amend it so as to make it conform with the verdict, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 938.
    7. Intoxicating liquors <&wkey;240 — Verdict held not irregular by unnecessary use of word “un- « lawfully” so as to require amendment by reviewing tribunal.
    Verdict finding defendant guilty of “unlawfully possessing a still for the purpose of unlawfully manufacturing liquors,” held not' irregular so as to require amendment by reviewing tribunal because of unnecessary use of word “unlawfully.”
    Commissioners’ Decision.
    Appeal from District Court, Dawson County ; Clark M. Mullican, Judge.
    Elvin Tuckness was convicted of possessing a still, for manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    J. G. Bishop, of Gorman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted for unlawfully possessing a still for the purpose of manufacturing spirituous, vinous, and malt liquor, capable of producing intoxication, in the district court of Dawson county, convicted on said charge, and his punishment assessed at one year’s confinement in the penitentiary.

The record on appeal fails to show that the appellant was ever sentenced by the trial court in this case. The sentence is' essential to give this court jurisdiction. Article 856, Vernon’s C. C. P. 1916, is as follows:

“When an appeal is taken in .eases of .felony, where the verdict prescribes the death penalty, sentence shall not be pronounced, but shall be suspended until the decision of the Court of Appeals has been received. In all other cases of felony, sentence shall be propounded before the appeal is taken.”

Under said article this court has uniformly held that without proper sentence this court has no jurisdiction of eases appealed from the lower court. Woolridge v. State, 61 Tex. Cr. R. 324, 135 S. W. 124, and many recent cases might he cited if necessary.

For the reasons above stated, this appeal is dismissed.

' 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 the Merits.

BAKER, j.

This appeal was dismissed at a former day of this court on- account of the record failing to show that appellant had been sentenced, and since said time the record has been perfected and will now be considered.

The appellant was indicted and convicted in the district court of Dawson cotínty of having a still in his possession for the purpose of manufacturing intoxicating liquor, and his punishment assessed at one year’s confinement in the penitentiary.

Upon inspection of the record, we find .that the statement of facts filed herein is made up in question and answer form. Article 846, C. C. P., requires the statement of facts to be made up in narrative form and prohibits same to be prepared in question and answer form as in this instance. There are many authorities in this state construing this statute, holding that this court is not authorized to consider a statement of facts so prepared. Branch’s 'Ann.' P. C. § 601, and the authorities therein cited. Jacobs v. State, 92 Tex. Cr. R. 253, 242 S. W. 232, James v. State, 97 Tex. Cr. R. 612, 262 S. W. 500, and many. other authorities we might cite sustaining the same proposition.

The appellant in this case urges by his bills of exception and special charges complaint against the . action of the court in trying this cage, but, without a proper statement of facts, we have to presume that the court committed no error in such matters as are therein complained of. The indictment, court’s charge, verdict of jury, and judgment being regular, we are of the opinion that, the record as presented fails to show anj>- error committed by the trial court, and this judgment should be affirmed, and it is accordingly so ordered.

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.

MORROW, P. J.

The statement of facts is manifestly but a transcription of the stenographer’s hotes in question and answer form. It cannot be considered, for the reason that it is not in compliance with the statute (article 846, C. C. P.), as pointed out in the original opinion. The indictment reads:

“ * * * Did then and there unlawfully possess a still for the purpose of unlawfully manufacturing spirituous, vinous, and malt liquors capable of producing intoxication.”

Appellant insists that the indictment is duplicitous. It is founded upon chapter 22, Acts 38th Leg. 2d Called Sess., in which it is made unlawful to possess equipment for the manufacture of intoxicating liquors, section 2e of which reads as follows:

“Wherever possession or receipt, or possession or receipt for the purpose of sale, is made unlawful by this act, proof of possession of mash, or of a still or any device for manufacturing intoxicating liquors, or proof of the possession of more than one quart of intoxicating liquors, shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such possession.”

Appellant argues:

“ * * * That by the use of the word ‘purpose’ in said indictment there has been combined against appellant both the offense of possessing and the offense of manufacturing, and the word ‘purpose’ predicates in the indictment that the appellant has been guilty of manufacturing. That section, 2b of the said act, as above referred to, makes proof of possession of a still or any device for manufacturing intoxicating liquors prima facie evidence of guilt, and sections 1 and 2 of the said acts, as above referred to, make both possession of a still and the manufacture of intoxicating liquors a separate offense.”

If the position taken by the appellant is sound, which is not conceded, the alleged duplicity of the indictment would not be available after verdict in the absence of a •motion to quash previously ruled upon. See Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367.

He further contends that the indictment is bad because, in connection with the averment that we have quoted above, there is no negation of the exceptions under which the manufacture of intoxicating liquors might be lawfully conducted. Since the enactment of section 2b, as added to acts 1919, 2d Called Sess. c. 78, by section B, c. 61, Acts 37th Leg. 1st Called Sess. (Vernon’s Ann. Pen. 'Code Supp. 1922, art. 588]4a2), it has not been necessary that the state either allege or prove that the liquor was not legally manufactured by virtue of some' of tbe exceptions named in tbe statute and Constitution. In tbe judgment, appellant is found guilty of “unlawfully possessing a still for tbe purpose of unlawfully manufacturing spirituous, vinous, and malt liquors.” It is insisted that by tbe use of tbe word “unlawfully” tbe judgment is vitiated, citing s Carr v. State, 89 Tex. Cr. R. 245, 230 S. W. 405. If tbe judgment was deemed irregular, tbis court could and would so amend it as to make it conform with tbe verdict. See article 938, C. C. P. (Vernon’s Tex. Crim. Stat. vol. 2, p. 900), note 9; Wright v. State, 84 Tex. Cr. R. 352, 207 S. W. 99; Miller v. State, 82 Tex. Cr. R. 495, 200 N. W. 389. However, tbe unnecessary use of tbe word “unlawfully” we tbink is not of sucb irregularity as demands or requires attention.

Tbe other questions to wbicb tbe motion for rebearing refers were sufficiently treated and properly disposed of in tbe original bearing.

Tbe motion for rebearing is overruled. 
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