Ross v. State , 114 Tex. Crim. 127 ( 1929 )

The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for two years.

Operating under a search warrant, officers searched appellant's residence and found therein more than a quart of whiskey. Eight bottles, each containing about a pint of whiskey, were found under a stairway, and about a pint in a dresser drawer in appellant's room. Also a quantity of whiskey was discovered in a cow lot directly back of appellant's residence. Appellant was present when the search was made and unlocked the door to the closet under the stairway in which the whiskey was found. There was some evidence to the effect that witnesses had sold appellant bottles.

Errors are assigned because the court refused to give certain special charges. Nowhere on these charges does it appear that exception was reserved to the refusal. While separate bills of exception to the refusal to give these charges appear in the record, said bills were filed too late to be entitled to consideration. Requested charges cannot become the subject of review in the absence of bills of exception. However, where such charges bear notation over the trial judge's signature that they were presented to him before the main charge was read, were refused, and exception reserved, the necessity of more formal bills of exception will be obviated. Linder v. State, 250 S.W. 703, and authorities cited.

Bill of exception No. 1 recites that appellant excepted to the court's charge before said charge was read to the jury and sets forth various objections. Nowhere is it shown in said bill that appellant filed written exceptions. Objections to the charge must be in writing. Art. 658, C. C. P.; Castelberry v. State, 228 S.W. 216.

Bills of exception Nos. 2 to 9, inclusive, were filed on January 18, 1929. The term of court at which appellant was tried adjourned on Nov. 24, 1928. No extension of time for the filing of the bills was granted by the trial court. Art. 760, Sub-division 5, C. C. P. allows thirty days after the day of adjournment of court for filing bills of exception. There being no order in the record extending the time, and said bills not having been filed within thirty days after the adjournment of court, we are compelled to hold they were filed too late. Mann v. State, 277 S.W. 1085.

No error being presented, the judgment is 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.