The offense, possessing intoxicating liquor for the purpose of sale; the punishment, one year in the penitentiary.
The testimony for the state showed that two officers having a search warrant, on May 30, 1931, about 3 o'clock in the afternoon, went to a place in Houston known as the Home Cafe. They found in said place four coke bottles of whisky in the ice box in the cafe, and two half-gallon jars of whisky back in the kitchen, and also found about 35 bottles of beer, which was home brew and testified to be intoxicating, and they also found some cases of empty bottles. The officer B. A. Derden, *Page 247 also testified that, after he found the whisky, defendant made a statement to him, and said that he had been in a lot of trouble and just had to try and get by and that the premises were his. The state's witness also testified that at the time he searched the cafe that the railroad men were having a convention in Houston and there were a bunch of railroad men in the cafe at the time. He stated that there might have been some others there besides the railroad men, but the others were not drinking; that some three of the railroad men were pretty well intoxicated.
The defense offered two witnesses, whose testimony was to the effect that on the day previous to the raid that arrangements had been made with the appellant by some of the railroad men attending the convention to have a party in his place of business, and that a man by the name of Bell said that he would get some whisky and beer and asked the appellant if he would keep the whisky and beer in his ice box for them. One of said witnesses testified that the liquor found by the officers, both the beer and the whisky, was brought there by the railroad men and belonged to them, and that appellant kept it in his cafe merely to accommodate them until the next day when they intended to have a party, and that some of the railroad men drank some of the beer, but that the appellant did not receive any money for it.
In rebutting the defendant's testimony, the state showed by the officer, B. A. Derden, that at the time of the raid there was no statement made to him by anybody that whisky and beer were brought there by a man named Bell to be used for an entertainment; that the defendant first said that he did not have a bit of whisky or beer on the place; that all he had was only beer; that after they found the beer, he admitted that it was his. The officer further testified that after they had found the beer and whisky, appellant called him off and said to him, "I am a poor fellow and been in a lot of trouble and hard circumstances. Wouldn't $50 fix this up all right just between me and you and your partner?" That the appellant offered this bribe in the presence of Sanders, the officer who was with him in the raid, and the appellant admitted the beer and whisky was his. He also testified, without objection, that they raided that cafe three times, and sometimes they had the wagon and sometimes they did not.
Bill of exception No. 2 complains of the action of the trial court in permitting the state, over the objection of the appellant, to prove by the witness Derden that "he knew the preceding month or two prior to May 30, 1931, the defendant had been engaged in the liquor business." Defendant objected to the above testimony on the ground that it was irrelevant and immaterial, and that, the defendant not having been put on the stand, his reputation or previous occupation, or trouble, was not in question, and the answer to said question was in effect hurtful and prejudicial to the rights of the defendant, and for the further reason that said *Page 248 testimony referred to a separate and distinct offense, if any, from the one charged against the defendant, and was attacking his reputation when the same had not been, and was not, put in issue by the defendant. The appellant did not object to the form of the question and answer. We think this testimony was admissible for the purpose of rebutting, and as affecting, the defensive claim that the liquor was not possessed for the purpose of sale, and it was on hand merely as an accommodation for other parties. See Bedford v. State, 75 Tex. Crim. 309,170 S.W. 727; Todd v. State, 101 Tex.Crim. Rep.,275 S.W. 1013.
Complaint is made in the amended motion for new trial that the jurors received other testimony by improper remarks of members of that body. The motion for new trial is not sworn to and no affidavit of any kind is attached to said motion. No bill of exception presents this matter. A controversion of the amended motion for new trial is filed by the state, and the record shows that on the hearing of said motion oral testimony was heard. No evidence appears in the record as to what said oral testimony was. Therefore, there is nothing before this court for consideration.
Complaint is also made for the first time in the amended motion for new trial of a purported statement in the closing argument of the state's attorney. No ruling of the court, so far as the record shows, was asked for or made regarding said argument, nor is any bill of exception filed to the argument. Objection to argument comes too late when presented for the first time in motion for new trial. Brannan v. State,108 Tex. Crim. 418, 1 S.W.2d 279; Uhl v. State, 112 Tex. Crim. 185,15 S.W.2d 615.
Bill of exception No. 1 complains of the refusal of the trial court to give in charge to the jury a special charge requested by appellant to find the defendant not guilty. The testimony offered by the state, if believed, was sufficient to sustain the conviction. The conflict in the testimony was a matter for the jury, and we do not feel called upon to disturb their verdict. There was no exception or objection to the court's charge.
Finding no error that would call for reversal of the case, the judgment is 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.