The plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.
Officers with a search warrant searched the residence of defendant at the town of Sentinel and found one gallon of wine and a considerable quantity of home-brew and one quart of corn whisky; and a half gallon of whisky was found in the bathroom, but as this room was not covered by the search warrant the court struck the consideration of that from the jury. Complaint is made that the evidence is insufficient. This contention is not tenable. There is sufficient evidence to sustain the judgment.
It is also argued that a remark of the trial judge was prejudicial. In the course of the argument, counsel for the state argued that there were five quarts of intoxicating liquor. Defendant's counsel challenged the correctness of this statement, and the court overruled the objection stating the ground of his objection and using the words, "It is just up to the jury to believe it." An exception was taken to the ruling of the court, but no exception *Page 335 was taken to the remarks of the court and no error predicated on the remark of the court is assigned in the motion for a new trial. The error is waived.
The case is affirmed.
DAVENPORT, P. J., and CHAPPELL, J., concur.