Appellant was convicted in the Criminal District Court of Harris County of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.
Officers searched appellant's premises and found five one gallon jugs of whisky, a pint bottle two thirds full of the same liquid, several whisky glasses of different sizes, a small funnel, a half pint of coloring matter, another half pint bottle about one third full of whisky, and some twenty-five empty pint bottles. Appellant was coming out of the room in which the liquor was when the officers met him. No explanation or claim in regard to the liquor was made by appellant at the time it was found and he was arrested. On the trial of the case appellant did not testify but introduced his wife. She claimed that she bought the whisky from an Italian who drove up to her house on the day the officers came; she did not know the Italian's name and had never seen him before; he was in a car alone, and he knocked at the door and asked if that was the place where Aurelia Thomas lived and said that a man told him that she wanted to buy some whisky. She further testified that she replied that she did and asked him how much he had and he said five gallons, and she tried to buy a quart but he told her he could not get rid of a quart, that if she would take the five gallons he would let her have it at fifteen dollars. She also said that she got the coloring matter that was found by the officers, from a woman to put into cakes. She also said that she got the whisky in the bottles from other people and did not get it from the Italian. She claimed to be suffering from asthma and explained the presence of whisky glasses of different sizes by saying that when she had the asthma bad she took her whisky in the big glass, and when she did not have it quite so bad she took it in the next smaller one, and when her attacks were not so severe she took a dose in the little glass. She said she got the coloring matter from a colored woman.
There are no bills of exception in the record. The only exception to the charge of the court was to the paragraph wherein the trial court told the jury that under the law of this State where one is found in possession of spirituous liquors in quantities of more than one quart it should beprima facie evidence of guilt, but that the accused shall have the right to introduce evidence showing the legality of such possession, — the exception being taken to this on the ground that it was on the weight of the evidence. We find *Page 290 nothing in the exception which was merely to a statement of the law of this State. No other exceptions were taken to the charge, nor to any matter of procedure during the trial of the case.
Four special charges were asked and refused, but neither by notation on same, nor by separate bill of exceptions was there any exception reserved to the action of the trial judge in the refusing of said charges. In such case there is nothing for this court to review.
In oral argument appellant insisted that inasmuch as his wife had testified that she bought the liquor herself for her own use as medicine, and this was not rebutted by the testimony of any witness, the State's case was overthrown and the evidence was insufficient to support the judgment of conviction. A jury is not compelled to accept as true any statement or explanation made by the accused which rebuts the State's case; nor do we perceive any difference in the attitude of the wife of the accused which would compel the jury to accept as true any defensive testimony or statement made by her in behalf of her husband.
The jury have the right to accept or reject the testimony of any witness. The only witness introduced by the defendant was his wife and her story appeared on its face a little remarkable. She said she had been paying three and four dollars a pint for whisky, but that she bought five gallons at three dollars a gallon from a man she had never seen before who drove up to her house with it in a car. Her explanation of the presence of the coloring matter and of the drinking glasses and of the empty bottles was probably unsatisfactory to the jury.
Believing the evidence sufficient, and finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING