The appellant was convicted in the district court of Travis County for the offense of keeping premises for the purpose of manufacturing liquor capable of producing intoxication, and his punishment assessed at confinement in the penitentiary for a term of one year.
The bills of exception in this case, are so qualified by the trial judge as to show no error. In addition to this, however, we may state that we have carefully considered the bills and have reached the conclusion that without the court's qualification there is nothing containing therein that would warrant this court in reversing the case, As illustrative, we refer to bill number one which complains of the court's action in asking the witness Fowler certain questions over the objection of the defendant. This bill fails to show that the witness answered the questions or what his answers thereto were.
Bill No. 2, complains because the witness Fowler was permitted to state that the defendant told the peace officers that they could go ahead and search the place. There are no facts set out in this bill that would indicate that this testimony could have in any wise been harmful to the appellant. The mere statement that the appellant gave his permission to search the premises in the absence of a showing by the bill to the contrary might indicate that the appellant had no guilty knowledge of the premises being used for an unlawful purpose.
What has just been said with reference to bill number two, also applies to bill number three. The rule generally, is that statements made by a party under arrest are not admissible, but there are some well known exceptions to this rule, and it is incumbent upon a party seeking to invoke this rule to show that the testimony objected to does not come within any of the exceptions, and this bill fails to in any manner comply with this requirement.
Bill of exception No. 4, complains at the court's failure to instruct a verdict of not guilty. We think this instruction was properly refused.
Bill No. 5, complains at the court's action in refusing to require the State to elect on which count it would proceed after the State had closed its testimony and before the defendant had offered any evidence. In qualifying this bill, the court states that the evidence introduced by the State, in the judgment of the court, sustained both counts in the indictment, and that under the laws of Texas, and the testimony offered in the case, the State was entitled, if it desired, to have both counts submitted to the jury in an appropriate charge. We think the court's ruling in the matter was not reversible error, for while it is true that an appellant can only be convicted in a felony case on one count, it is nevertheless true that the court can submit to the jury, if the evidence justifies it, *Page 533 more than one count, and his rights were fully protected as the jury was properly instructed that a conviction could be had only on one count. This was the procedure followed in this case and we think there was no reversible error shown in the matter.
In our opinion, the facts are sufficient to support the verdict and there being no error in the record, the judgment should be in all things 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.