Appellant urges that because the sheriff said he had never made beer, and that what he drank of the beer found by him at appellant's house, did not make him drunk, — therefore the jury erred in the first instance, — and this court later, in accepting as true the uncontradicted positive statement of said officer that the beer so found by him was intoxicating liquor. We do not deem the proposition serious enough to call for discussion. It is plain that one who never made intoxicating liquor, may know from experience and observation that same is intoxicating; equally, that one does not have to drink enough of a given liquor to make him drunk, to enable him to say it is intoxicating. Testimony that a wife gave permission to one to enter a house occupied by her and her husband seems in no sense in violation of the rule which forbids a wife to testify against her husband except in certain instances. Nothing in the authorities cited in appellant's motion, viz.: Baird v. State,13 S.W.2d 833; Art. 714, C. C. P., and Hamilton v. State, 37 S.W. Rep. 431, holds to the contrary of the view thus expressed.
It is insisted that we erred in not holding that the seventh ground of appellant's motion for new trial was good. In this paragraph of said motion was presented the sworn statement that the testimony of appellant's wife was "newly discovered" testimony. Even if the averments of said motion were of that convincing character necessary in order to make same "newly discovered," we would have to hold against the contention. Neither by bill of exception nor by statement of facts duly approved and brought forward in *Page 328 the record is the testimony heard by the court when the motion for new trial was presented, preserved or brought here. The order of the court overruling such motion recites that the court heard evidence. Not having such evidence before us, we must affirm the correctness of the overruling of said motion. Crouchette v. State, 99 Tex.Crim. Rep.; Wilson v. State, 99 Tex.Crim. Rep.; Parsons v. State, 98 Tex. Crim. 272; Cade v. State, 96 Tex.Crim. Rep.. The fact that appellant's wife was a Mexican woman and possibly ignorant of the English language, would scarcely suffice to excuse him in not finding out from her what her testimony would be regarding the proposition as to whether she gave the officer consent to enter the house or not. Appellant was also a Mexican and spoke the same language she did.
The motion for rehearing will be overruled.
Overruled.