Collier v. State , 110 Tex. Crim. 509 ( 1928 )

We were in error in declining to consider appellant's two bills of exception. We overlooked an order made by the trial court extending the time for filing such bills.

The first bill sets out all the exceptions taken to the charge of the court. This bill is qualified by the statement of the trial judge that upon the presentation of such exceptions, he amended and corrected his charge to conform thereto. An inspection of the charge makes it apparent that this statement is true.

The second bill of exceptions makes a blanket objection to lengthy quoted testimony of appellant on cross-examination. The testimony for the State showed, apparently beyond question, that appellant was present at a still in operation and that he was engaged, with others, in refilling the boiler from barrels of mash, which barrels were situated some twenty feet distant from the boiler. When the officers appeared appellant fled. On this trial he took the witness stand and denied any connection with the still, the manufacture, or the possession of the equipment, product, etc., and said he was an innocent bystander. Under all of our authorities such claim of innocent connection with an illegal transaction, when made by the accused, may be rebutted by proof of his guilty connection with other similar transactions. Hennessy v. State, 23 Texas Crim. App. 340; Graham v. State,78 Tex. Crim. 602; Edwards v. State, 98 Tex.Crim. Rep.; Copeland v. State, 99 Tex.Crim. Rep.; Webb v. State,100 Tex. Crim. 193. Part of the statement complained of in this bill related to a question propounded to appellant on cross-examination by the State's attorney, relative to whether he had any connection with a still found by the officers near his house sometime prior to the occasion here involved. Appellant denied that any still was found near his house, but stated that one was found about half a mile from his house. He denied having any knowledge of or connection with that still or its operation. There is no such showing as to lead us to think the State in error in asking about his connection with this still, in view of his claim of being an innocent bystander in the transaction on trial. Nor, in view of his denial of having any knowledge of or connection with the still inquired about at said prior time, would we think the matter capable of any injurious effect. We might further observe that we find in said bill of exceptions, and embraced under the same complaint as to the remainder of the testimony, an entire paragraph of appellant's testimony relating to the transaction connected with the present still, and, under our rule where part of the testimony is clearly admissible, one can not be heard upon a bill of exceptions presenting this with other testimony which might be deemed inadmissible, we would not be inclined under such circumstances to agree with appellant's contention. We deem the facts amply sufficient to support the judgment, and being unable to agree with the contentions made, the motion for rehearing will be overruled.

Overruled.

ON MOTION FOR REHEARING.