At a former day of this term this case was affirmed, and appellant has filed a motion for rehearing in which he earnestly insists that "the Honorable Court of Criminal Appeals erred in its opinion in its statement of the case or findings of fact. The court finds that `appellant at this time was in the saloon business at Marshall.' This finding is outside the record. The typewriter of appellant's brief made the mistake of inserting `saloon man' for `salesman' or `drummer,' and the word saloon man was scratched out by counsel and salesman written in its place. Again, as to `when he would order a mixed car of beer and Hiawatha,' etc. This is error because the carload lot as ordered were shipped from Houston to Marshall, and if beer and Hiawatha were mixed in the car, the beer was delivered at Marshall, and there distributed to purchasers on their orders, where intoxicants were sold, and then the Hiawatha was carried on by the railroad company to Jefferson, dry territory. If any beer was brought to Jefferson, it was brought by the railroad company through mistake and was never seen or handled by the appellant. This was material to show that appellant never intentionally or knowingly shipped beer or intoxicants to purchasers in Jefferson. The court further finds, `There is a sharp conflict in the testimony as to whether Hiawatha would produce intoxication.' We fail to find any such conflict, and especially do we so fail as to Hiawatha used by Deadweiler or Restella."
Appellant has not apparently read the record in the case, and if any mistakes are in the statement of facts as agreed to, we can not take cognizance of them, but must take the record as it is filed in this court. As to a conflict in the testimony, if we take the testimony of Restella and Deadweiler alone perhaps there would not be, for their testimony would make it an intoxicating liquor. Louis Restella says: "As to whether I ever have seen this Hiawatha, I seen what I had down there *Page 38 in the pool room. I got three casks of it from the defendant A. Sandeloski. I got it to sell it. It was put up just like bottle beer. It was put up in pint bottles, and the bottles looked like beer bottles. There were no labels on what I got. The defendant sold it at $10 a cask; I think it was $10. As to what I did with the stuff I got from the defendant, I turned them back. I don't know whether or not he sold it to Mr. Deadweiler; wouldn't swear about that. I don't know whether the defendant ever told me or not that he was going to let Deadweiler have it. I just told him I didn't want to sell it. He said he was going to send mine back; I don't know whether Deadweiler got it or not. I only got three casks of the stuff from the defendant. I think I used 4 dozen bottles of it, and turned the balance of it back to the defendant. I drank some of it. I drank three or four bottles. Q. Tell the jury whether or not it was intoxicating? A. Well, I don't know; I know if I had drank more I believe it would make me drunk. I haven't had much experience in drinking beer and other intoxicating liquors. I have drank some; I drink it now if I can get it. I know the effect that beer and other intoxicating liquors have on men. Q. Now, tell the jury whether that has an intoxicating effect, whether you could feel the stimulating and exhilarating effect of it? A. Well, I tell you, I never did drink over one bottle of beer at a time; when I got this stuff, I just wanted to try it and see if a bottle would make me drunk and I drank four bottles of it, and I felt pretty good; I don't say that I was drunk; if I had drunk some more I would have been drunk."
Deadweiler testified: "I know the defendant, A. Sandeloski. I knew him on or about the 11th day of March, 1908. I lived in Jefferson at that time, and was engaged in business there. I was selling this Hiawatha. I had been running a saloon before local option took effect, and after the election I opened up in the same old saloon. After local option went into effect I sold Hiawatha. I got it from Mr. Sandeloski. I first bought five casks of pints. That is 120 bottles to the cask. I paid him $10 a cask for it. As to where I got possession of the stuff; well, there was some of it brought to me; two casks, I believe it was, from Louis Restella. Q. That Mr. Louis Restella had bought and refused to sell? A. Yes, sir, they had some falling out about it, and Mr. Sandeloski just delivered them to me and I told him I would take it. He went and got the two casks that Mr. Restella had and brought them and delivered them to me. Those two casks were in Restella's place of business in Jefferson."
It will be thus seen that Deadweiler testified he bought the two casks of Hiawatha from defendant that Louis Restella had, and Louis Restella says: "When I got this stuff I just wanted to try it and see if a bottle would make me drunk. I drank four bottles and I felt pretty good; if I had drank some more I would have been drunk." These are the identical casks that defendant was being prosecuted for selling to Deadweiler. *Page 39
Again we are not mistaken about the statement of facts showing that a mixed car of beer and Hiawatha would be shipped and the beer delivered in wet territory, and the Hiawatha in dry territory. Mr. Sandeloski testified: "I usually came here and took orders, and sent in to the brewery. If I didn't fill the car they filled the car out with stock for Marshall to save freight. The Marshall stock was straight beer. Q. You wasn't shipping any Hiawatha into Marshall? A. They wouldn't buy it. I wasn't shipping any Hiawatha into Marshall. I shipped beer and Hiawatha in the same car. The beer was delivered at Marshall, and the Hiawatha came to Jefferson." If a mistake was made in inserting "saloon man" for "salesman" it does not affect the merits of the case, because it is unquestioned that defendant was making sales of Hiawatha, and sold two casks of Hiawatha already in Jefferson in Restella's place of business to Deadweyler.
Appellant further urges that "the court erred in paragraph two of its opinion in refusing to quash the information, because of a variance between it and the complaint. The complaint is the affidavit by Waldron that he has good reasons to believe and does believe is an affidavit pure and simple, in accordance with article 34, Code Criminal Procedure, and is not testimony given under oath and is the foundation for the information made by the district attorney in starting the prosecution in this case in the District Court, and the information should have conformed thereto." In Johnson v. State, 17 Texas Crim. App., 230, this court held: "We take occasion to remark that it is wholly unnecessary to state in the information that it is founded upon a complaint in writing, or make any mention whatever of the oath. This is not one of the requisites of an information. If the oath is filed with the information, it is all the law requires. (Code of Crim. Proc., arts. 430 and 431.)" There is no question in this case but what the complaint was made and filed with the information. In the case of Warren v. State, 17 Texas Crim. App., 209, it is said: "We think the information is sufficient. It directly charges the defendant committed the theft, although it states, parenthetically, `as shown by the complaint of H.M. Sullivan.' These words not being essential, nor descriptive of the offense, may be treated as surplusage." And in this case the words "founded upon testimony taken in behalf of the State under oath" are not essential nor descriptive of the offense and should be treated as surplusage. See also Hilliard v. State, 17 Texas Crim. App., 210; Steinberger v. State, 35 Tex.Crim. Rep.; Germany v. State, 62 Tex.Crim. Rep., 137 S.W. Rep., 130.
All the other questions presented are fully discussed in the original opinion, yet there is perhaps a matter we should call attention to. While we discussed the evidence taken on the motion for a new trial, it was perhaps improper for us to have done so. Court adjourned on May 2, 1911, and the evidence heard on the motion for a new trial was not filed until May 24, 1911, twenty-two days after court adjourned. In Probest v. State,60 Tex. Crim. 608, and cases there cited, *Page 40 it has been held by this court that the provisions of our statutes with regard to preparation of statement of fact's for appeal have reference only and exclusively to a state of facts adduced upon the merits of the case before the jury, and that those statutes have no reference to issues of fact formed on grounds set up in motion for new trial, and that the facts as to such issues, in order to be entitled to consideration on appeal, must be filed during term time. Therefore, the motion not being sworn to, no affidavits being attached thereto, and the statement of facts on the questions being filed after term time, the question presented is not raised in a manner that we can review it.
The motion for rehearing is overruled.
Overruled.