(248 S.W.)

"I picked him up. He was in such an addled or the one that ran; I could just tell it was two condition he could not get up."

ing the entire time the doctor treated him. | reflected in the bill of exceptions, had made He also testified that, from his examination a thorough and complete examination of the of the wound, he considered it a dangerous wound. This would appear to be customary one. Ball testified that he was in bed for in such cases, and there is nothing in the about 10 days; that he became unconscious bill of exceptions showing to the contrary. and turned blind immediately after receiv- If a physician examines a wound upon the ing the blow; that he did not know when he head, and states that in his opinion the fell; that he did not regain consciousness skull was fractured, it is clear there could until help reached him; that at the time of be no objection to his stating such fact. the trial he still suffered pain at times from This witness did state that when he examthe injury. There being sufficient evidence ined the head of the injured party he to support the finding to the jury that the thought at the time that the skull was fracinjury was serious, and to show the guilt tured. The bill of exceptions does not show of the accused, the assessment of the penal- that appellant was denied any right to crossty, within the statutory limitations, is left examine said witness to ascertain that his by law to the jury. As expressing the views examination of the patient was not thorough, of this court in the instant case, we take and that his situation was such that he was the following quotation from a recent deci- not able to give the testimony objected to. sion:

[7] Appellant's other contention is that the the time he was struck on the head was alwitness who picked the injured party up at lowed to say that he was so addled that he could not get up. The use of the word "addled" seems to be the principal ground of objection. We see nothing in this contention. That a witness might state that a party whom he picked up was drunk, or unconscious, or sick would seem well within the rules. The word "addled" is a word of established usage, and, while not as common as those just mentioned, has a well-defined meaning, such as stupid, muddled, foolish, etc.

"It was said by this court in Teague v. State, 4 Texas Crim. App. 147, in which a verdict of one year's imprisonment and $800 fine was rendered in a case of aggravated assault: "The law having prescribed the bounds to which and beyond which the jury may or may not go in affixing the punishment, and having also charged juries with this duty of affixing the punishment, within the limits prescribed, we do not feel warranted in disturbing a verdict on these grounds as set out in the motion. To do so would be to usurp the powers confided to the jury, unless in a clear case of abuse of their powers. The same view is expressed in Smith v. State, 7 Texas Crim. App. 414; Handy v. State, 46 Texas Crim. Rep. 407; and numerous others. See Harris' Texas Constitution, p. 115. The instances in which the court has felt authorized to depart from this rule are rare and the conditions extreme. Generally speaking, where the conviction is legal and the punishment within the terms of the statute, its modifications are left by the court to the executive department, in which there is vested authority to diminish the punishment without overturning the conviction, an authority not (Court of Criminal Appeals of Texas. Jan. 31, possessed by the courts." Wagner v. State, 87 Tex. Cr. R. 48, 219 S. W. 472.

We find nothing in the record to warrant a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing. LATTIMORE, J. [6] Appellant makes two contentions. He insists that we erred in holding admissible the testimony of Dr. Arwood that, when he dressed the wound of the injured party, he shaved the hair off his head and found the scalp cut to the skull that said witness was permitted to testify as follows: "I thought at the time the skull was fractured, and I believed it was at the

time." We have been unable to arrive at a different conclusion regarding this matter than as expressed in our original opinion. The witness was a physician versed and skilled in his profession, and as far as is

We regret our inability to agree with the earnest insistence of appellant in either of the matters complained of.

The motion for rehearing will be overruled.

HARRIS v. STATE. (No. 6948.)

1923.)

1. Criminal law 1092(14), 1120(8)—Objection to opinion testimony not reviewable where not shown in what manner witness lacked knowledge, and where there was no certification by trial court.

A bill of exceptions to the court's ruling on a motion to strike testimony that liquor found was whisky, "because said witness did not have a sufficient amount of information to entitle him to give an opinion upon the subject," held not to warrant consideration where it did not set out in what manner the witness lacked did not amount to a certification of the trial information, and the ground of objection stated court that the witness was without knowledge in the matter. 2. Criminal law

1170(1)-Refusal to require

sheriff to state upon whose information a search warrant was secured held not reversible error.

Refusal of the trial court to require the sheriff to state upon whose information it was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.)

that the officers acted in securing a search warrant for his premises held not reversible error in the absence of any showing that such information would have been in any way helpful to accused, who offered no testimony.

3. Criminal law 393 (1, 2)-Evidence of search and seizure of still and introduction of apparatus in evidence held not scheme to make defendant testify against himself.

Evidence of a search and seizure of a still and introduction of the apparatus in evidence held not to constitute "a scheme to make defendant testify against himself," and warrant

exclusion thereof.

4. Removal of causes-Transfer of liquor prosecution to federal court held unwar

ranted.

A motion for the transfer of a prosecution for liquor law violation to the federal court because the affidavit for search warrant was made out in the federal court, because the federal court had concurrent jurisdiction, because the federal prohibition law was more lenient and just than the state law, because the state law was alleged to be null and void, held not to state any ground authorizing such a transfer. 5. Criminal law 488-Doctor's testimony that he had tested liquor, and found it to contain 50 per cent. alcohol, held admissible. Testimony by a doctor, who stated that he had tested liquor in question with an instrument known as an "alcoholometer," and found that it contained 50 per cent. alcohol, held ad

HAWKINS, J. Conviction is for the manufacture of intoxicating liquor, with punishment assessed at three years' confinement in the penitentiary.

The third count in the indictment, being the only one submitted to the jury, alleged that appellant about July 28, 1921, unlawfully manufactured spirituous, vinous, and malt intoxicating liquor capable of producing intoxication, not for medicinal, mechanical, scientific, or sacramental purposes. The indictment is in conformity with the law in effect at the time of the alleged commission of the offense. Attack is made upon the indictment on the ground that the law under which it is drawn is unconstitutional, and that it does not conform to the amendment to the Constitution of the United States and of the Volstead Act passed by Congress (41 Stat. 305), placing the same in effect. These questions were all decided adversely to appellant in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199, and have been so frequently reaffirmed we deem it unnecessary to cite the cases, except two of Clyde Chandler v. State, 89 Tex. Cr. R. 308, 232 S. W. 336, and 89 Tex. Cr. R. 599, 232 S. W. 337, and two of John Chandler v. State, 89 Tex. Cr. R. 306, 232 S. W. 317, and 89 Tex. Cr. R. 308, 232 S. W. 336. The same contentions urged here by appellant were relied on in the four cases (supra), and, this court having failed to uphold them, writs of error to the 6. Criminal law 1038(1), 1092(6)-Instruc- Supreme Court of the United States were tion not considered, where bill of exceptions applied for and granted; that court on Where it does not appear that any written January 8, 1923, dismissed said cases, deobjection was filed to the giving of an instruc-clining to consider the questions therein tion, as required by Code Cr. Proc, 1911, art. 735, and the bill of exceptions was not filed until long after adjournment of the court, it is not entitled to consideration on appeal. 7. Intoxicating liquors 224 Instruction placing burden on defendant to show liquor manufactured for proper purpose held not

missible.

filed late, and there was no written objection.

error.

An instruction placing upon defendant the burden of proving that liquor was manufactured for medicinal, mechanical, scientific, or sacramental purposes held not error.

8. Criminal law 826-Requested instructions must be presented at time of trial and before main charge.

Requested instructions must be presented to the court at the time of trial, and before the main charge is read to the jury.

raised.

The

The officers secured a search warrant and proceeded to the premises of appellant, where they found a still being operated by him, together with about 30 gallons of mash. complete equipment is described in detail in the evidence. It is not necessary to burden the record with a description of it here. It was not only shown that the still could be so connected as to manufacture whisky, but it was actually connected up and in operation at the time the officers found it. The equipment in question was introduced in evidence. The testimony was amply sufficient to authorize conviction.

Appellant filed a motion seeking the return of the property found by the officers; he also objected to the 'testimony as to what they found at appellant's premises, and in various ways raised questions as to the regularity and sufficiency of the search warrant. These questions are not discussed at length, as facturing intoxicating liquor, and he appeals. they all pass out of the case under authority

Appeal from District Court, Harrison County; P. O. Beard, Judge.

Johnnie Harris was convicted of manu

Affirmed.

of Welchek v. State (No. 7136) 247 S. W. 524

H. T. Lyttleton and Hobart Key, both of (opinion delivered November 22, 1922; motion Marshall, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

for rehearing overruled January 17, 1923). [1] The sheriff testified that the liquor he found appellant manufacturing was whisky.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

It appears by bill of exception No. 6 that "First. Because the affidavit for search warappellant moved to strike this testimony rant was made out for the federal court. Secfrom the record "because the said witness ond. Because the federal court has concurrent did not have a sufficient amount of informa- jurisdiction with this court in the trial of such tion to entitle him to give an opinion upon law is more lenient and just than the state law cases. Third. Because the federal prohibition the subject." The bill is entirely insufficient upon the subject. Fourth. Because the Texas for this court to consider it. It does not state prohibition law is null and void. (A) It undertake to set out in what manner the administers excessive and cruel punishment; witness lacked information, and the ground (B) It is in conflict with the federal Constituof objection stated in the bill would not tion and law upon the same subject, which is amount to a certificate from the trial judge the supreme law of the land." that the witness was without knowledge as to the matter. See section 209, Branch's Ann. Pen. Code, p. 134. An examination of the statement of facts reveals that the objection stated in the bill is entirely without support.

We know of no authority authorizing the transfer of a criminal case from a state court to a federal court upon any of the grounds presented in the bill.

[5] No error was committed by the court in refusing to strike out the testimony of Dr. Dunn, who testified that he had tested the liquor in question, using an instrument known as an "alcoholometer," "and found therefrom that the liquor found by the officers contained 50 per cent. of alcohol." The state having shown by other witnesses that the liquor was whisky was sufficient to support the allegation in the indictment, even in the absence of Dr. Dunn's testimony; but, if this were not so, we find no ground which would have authorized the court to have withdrawn this testimony from the jury.

[2] It appears from bill of exception No. 7 that appellant sought to elicit from the sheriff the name of the party upon whose information the officers acted in securing the search warrant. The trial court declined to compel the sheriff to divulge such information, and appellant presents this as error. Facts might be made to appear in some instance which would present such denial on the court's part as error, but this has not been done in the bill of exception before us. Appellant did not testify upon the trial, and offered no evidence of any character, evidently basing his defense upon the contention that the officers were acting under an unauthor-able doubt that appellant unlawfully manuized search warrant, and therefore that the facts discovered by them thereunder were not receivable in evidence. No fact is made to appear in the bill which would indicate that it would have been in any way helpful to appellant to have required the sheriff to "You are instructed that our statute propublicly make known the name of the party vides that it is unlawful for any person to manupon whose information he acted which re-ufacture intoxicating liquors not for medicinal, sulted in the discovering of appellant's violation of the law..

[6, 7] The court charged the jury, if they believed from the evidence beyond a reason

factured spirituous, vinous, and malt intoxicating liquor capable of producing intoxication, to wit, whisky, that they would convict appellant. At the instance of the state he gave a special charge as follows:

mechanical, scientific, or sacramental purposes, and you are further instructed that the burden of proving that intoxicating liquors were manufactured for such purposes (if any intoxicating liquor was manufactured) rests upon defendant."

Appellant presents what purports to be the reservation of an exception to the giving of this special charge. It nowhere appears in the record that any written objection was filed thereto at the time of the trial, and the bill presented for our consideration was not filed until March 10, 1922, long after adjournment of court. As presented the bill is not entitled to consideration, but, even if it were, we find no error in the special charge. It is in conformity with the holding of this court

[3] Appellant filed a motion asking the court to exclude all the testimony developed in the case because "the same was a scheme to make defendant testify against himself." We have been unable to appraise the force of this contention. No testimony was offered through the state's witnesses as to anything appellant said at the time they discovered him operating the still, and we cannot understand by what course of reasoning the evidence of the officers as to what they found, and the introduction of the apparatus in evidence, can be made the basis of a claim that appellant was compelled to give evidence against himself. By the same course of reasoning a party charged with the theft of in Roberts v. State, 90 Tex. Cr. R. 133, 234 property found in his possession could exclude the testimony as to such finding and the exhibition of the stolen property in court upon the trial.

[4] Appellant made a motion during the trial that this case be transferred to the Jefferson division of the federal court of the Eastern district of Texas for the following reasons stated in the bill:

S. W. 89, and Shaddix v. State, 90 Tex. Cr. R. 431, 235 S. W. 602, which rule has been consistently followed since the announcement.

Bill No. 16 purports to be an exception to the court's charge. It is nowhere stated in the bill that appellant filed any written objec tion to the charge as required by article 735, C. C. P., and no such written objection appears in the record. The bill of exception

(248 S.W.)

in question was filed March 10, 1922, long Action by G. K. Morris and another against after adjournment of court, and, in the the St. Louis, Brownsville & Mexico Railabsence of a showing in the bill over the way Company and another. From a judgsignature of the trial judge that the matters ment for plaintiff, defendant named appeals. now complained of were objected to in writ- Affirmed. ing, we would be precluded from a consideration thereof; however, the matters conplained of in the court's charge appear to us to be unobjectionable.

[8] We find in the record five special charges requested by appellant, all of which are marked "refused." There also appear five bills of exception to the refusal of the court to give the charges requested, but neither in a notation upon the charges themselves over the judge's signature, nor in the bills presenting the matter for review, is it stated that these charges were presented to the trial court at the time of the trial, and before the main charge was read to the jury. We examined the special charges before discovering the defect pointed out, and believe the court properly declined all of them.

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

ST. LOUIS, B. & M. RY. CO. v. MORRIS et al. (No. 6871.)

(Court of Civil Appeals of Texas. San Antonio. Jan. 31, 1923. Rehearing Denied Feb. 21, 1923.)

1. Dismissal and nonsuit 26-Dismissal of initial carrier sued jointly with another held not error when not served and not appearing and not pleaded into court by the other.

Though connecting carriers were sued jointly for damages to a shipment, it was not error to dismiss the initial carrier where it was not served with process and did not appear and answer, and there was no pleading of the other

carrier to hold it in court.

2. Appeal and error 189(3)-Exception on appeal to dismissal of party held too late.

An exception to the dismissal of defendant jointly sued with another comes too late when first taken on appeal.

3. Carriers 177(1)-Constitutional law

D. F. Strickland, of Mission, and E. H. Crenshaw, Jr., of Kingsville, for appellant. Gause & Kirkpatrick, of Mercedes, for appellees.

COBBS, J. Appellees sued the appellant and the Gulf, Texas & Western Railway Company for damages to a shipment of furniture delivered by them to the Gulf, Texas & Western Railway Company at Megargel, Tex., consigned to them at Donna, Tex. There was no pleading filed by the Gulf, Texas & Western Railway Company, and it was dismissed by appellee without any objection. The case was tried by the court upon an agreed statement of facts, and the court rendered judgment in favor of appellees for the sum of $500.

Said railroad companies were connecting common carriers of freight and passengers, organized and operating its lines under the laws of Texas. Appellees properly boxed and crated their household goods and personal effects, and delivered same to the Gulf, Texas & Western Railway Company on its platform at Megargel, Tex., to be transported by it and over its connecting line to the city of Donna, in Hidalgo county, to be delivered there to appellees, appellees agreeing to pay, and did pay, the freight charges for said haul at Donna, Tex. The Gulf, Texas & Western Railway Company accepted said goods, which at the time of their delivery were in good condition, for the purpose of transporting the same to Donna, issued and delivered to the

appellees a regular through bill of lading, consigning said goods to appellees at Donna, Tex., which was a valid and binding contract, for the safe transportation and delivery of said goods from Megargel to Donna. The said initial carrier delivered the goods to a connecting carrier at Fort Worth, who in turn transported the same to the connecting point on the lines of appellant company, who accepted them upon the consideration and terms as set out in the original bill of lading, and delivered same to appellees in Donna in the damaged condition they were found in when recovered by appellant. The damages occurred to the goods while in the possession of the Gulf, Texas & Western Railway Company, by being allowed to remain on its platform at its depot at Megargel for a period of about three weeks, being exposed to two big rains, which negligence was the direct and proximate cause of the damages. No part of Appeal from Hidalgo County Court; Geo. the damages occurred while in the possession P. Brown, Judge.

249, 305-Statute allowing suit against either or all connecting carriers held constitutional. Rev. Civ. St. art. 732, authorizing suits for damage to or loss of freight sustained anywhere over connecting lines, as defined in article 731, against either or all connecting carriers, and under which as to suits brought thereunder article 1830, subd. 25, allowing apportionment of damages, is not applicable except at plaintiff's request, is not unconstitutional as denying either the carrier sued or any other any right, or depriving it of due process of law or equal protection guaranteed by Const. U. S. Amend. 14, § 1, and Const. Tex. art. 1, § 19.

of appellant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes