Hahn v. State , 101 Tex. Crim. 491 ( 1925 )

The appellant was convicted in the district court of Denton County for the offense of manufacturing liquor and his punishment assessed at confinement in the penitentiary for a term of two years.

The appellant made a motion on the day of the trial to be served with a copy of the indictment in the case, and complained that he was not thereafter given two full days before being forced to trial. The bill shows that appellant was out on bond from the time the indictment was returned, and that his request to be served with a certified copy was immediately complied with by the clerk. Where the appellant is under bond he is entitled to a copy of the indictment if he makes request for the same, but he is not entitled to have granted him two full days after receiving same before he can be forced to trial. Art. 533, Vernon's C. C. P; Johnson v. State, 4 Tex.Crim. App. 268; Abrigo v. State, 29 Tex.Crim. App. 143.

Appellant sought to quash the jury panel under an allegation that the court had instructed the jury commissioners not to summon as jurors certain persons, and second because the panel was not full and that it had been the custom in that county for the last several terms of the court to allow jurors drawn by the jury commissioners to fail to attend court. The court qualifies this bill by stating that the first paragraph is not true and by saying that there was no evidence introduced before the court to show that any of the facts alleged in paragraph two of this motion are true. Under these circumstances no error is shown.

Appellant moved to quash the indictment because it did not contain any of the exceptions named in the statute, and did not allege the kind of intoxicating liquor manufactured and also because it did not allege how same was manufactured, or whether by fermentation or distillation. It is not necessary to negative the exceptions contained in the statute and has been so held many times by this court. Neither is it necessary to name the kind of intoxicating liquor, nor to allege how the same was manufactured. We have been cited to no authority, and know of none, placing any such burden on the State. Travinio v. State, 92 Tex.Crim. Rep..

By various bills of exception, appellant complains that the court permitted certain peace officers who appeared as witnesses for the State, to testify as to a barrel found on the premises of the defendant containing mash. His objection being to the effect that they were not qualified to give an opinion as to the contents of this barrel. The court qualifies this bill by saying that the witnesses testified that they had seen mash prior to that time and that in their judgment it was mash. Appellant's objections go more to the weight that to the admissibility of the testimony.

Appellant complains that after the sheriff of Denton County testified that he was told that a jug of whiskey was buried on the premises of defendant, that thereupon defendant asked the witness to State the name of the party who gave him the information and that this question was objected to upon the ground that the sheriff did no have to disclose information which led to the arrest of bootleggers, and the court sustained the objection. The bill of exception fails to disclose what the sheriff's answer would have been if he had been permitted to testify, and in the absence of this information this court is without power to determine whether the exclusion of the testimony was harmful to the appellant.

What we have said with reference to appellant's motion to quash the indictment disposes of his contention as raised by bill of exception No. 6.

The court gave a correct charge on circumstantial evidence and appellant's complaint with reference thereto is without merit.

By bill of exception No. 8, appellant complains at the court's failure to charge the jury that if they believed beyond a reasonable doubt that whiskey was found on the premises of the defendant, but had a reasonable doubt as to who placed the same on the premises to acquit the appellant. This matter was presented in paragraph three of the court's main charge to the jury.

The court's qualification to bill number nine is entirely sufficient to show that no error was committed in the argument complained of.

Having carefully examined the entire record, it is our opinion that the appellant has had a fair trial in the case, and that the judgment of the lower court should be in all things affirmed.

Affirmed.

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.