Offense, the unlawful possession of mash for manufacturing intoxicating liquor; penalty, three years in the penitentiary.
Officers came upon a still in a pasture. They found at the still appellant and his wife and Charlie Hawkins. With the still were three barrels of mash, thirty half gallon fruit jars, a ten gallon keg and some fruit jar rubbers and lids. The still was sitting on a furnace over a hole. Charlie Hawkins testified for the State *Page 368 that he was sixteen years old and had been employed by appellant to make whiskey for him.
When the case was called for trial appellant moved for a continuance on account of the absence of three witnesses. The Court overruled this motion and the case was tried without either of these. Motion for new trial was filed setting up this action of the Court as one of the grounds, which was contested by the State and affidavits filed, the substance and effect of which was to show that these witnesses were transient persons and that two of them resided in Oklahoma, and that when subpoenaed at Burkburnett in Wichita County they were apparently just passing through the town. It further appears that when the case was called for trial on the 17th day of December these witnesses failed to appear and that an attachment was issued and sent to the Constable at Burkburnett but he failed to find them. No further effort was made to obtain their testimony. The application for continuance was dated December 30, 1929. Upon the issues made on motion for new trial the Court apparently heard evidence and the order overruling said motion recites that evidence was "heard thereon." Such evidence has not been brought forward in any statement of facts. Under these circumstances we must presume that such evidence was before the Court as justified an order overruling same. 4 Tex. Jur., Paragraph 142, and authorities there cited. "A motion for new trial is addressed to the sound legal discretion of the trial court whose action thereon will not be disturbed on appeal save in those cases wherein the discretion has been abused." 4 Tex. Jur., Paragraph 396.
Officers found near the still a woman's coat and in same was a letter. This letter was introduced in evidence, to which appellant objected because the letter had not been identified and appellant's connection therewith was in no way shown. In our opinion the contents of the letter tended to prove no issue adverse to appellant and its admission was therefore harmless. The only possible fact that it might have remotely tended to prove, if it had been identified, was the presence of appellant at or near the still at some time, which fact does not appear to have been a seriously contested issue.
Other bills relate to the admission of the testimony of officers to the effect that the mash found by them was capable of being manufactured into intoxicating liquor. This was objected to on the ground that they were not shown to be experts and were without sufficient experience in such matters as to enable them to give *Page 369 an opinion on the subject. These bills are qualified by the trial court with such statements as show in our opinion the qualification of these witnesses to give the testimony objected to.
Finding no error in the record, 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 APPELLANT'S MOTION FOR REHEARING.