On Motion for Rehearing
Appellant accompanies his motion for rehearing by a supplemental transcript, which shows the granting of his motion for an entry nunc pro tunc of a judgment overruling his motion for new trial, in which he is given 60 days from the adjournment of court in which to file statement of facts and bills of exception. It is made to appear from the caption of the transcript that the trial term of the court below adjourned on November 4th. This being true, the date of the order extending the time for filing such records was within the 60-day period allowed, and our conclusion, as announced in the former opinion that the extending order was made too late, should now be reformed, and it be held that the statement of facts and bills of exception were filed within the time, and will now be considered by us. This court makes great concessions to the frailty of human nature, but again calls attention to the burden that is unnecessarily imposed upon us by errors which cause two examinations of records here, as well as much delay and loss of time and cost incident to the correction of the records.
We consider appellant’s bill of exceptions No. 1 in the former opinion. By several bills of exception complaint is made of the fact that the officers, before going to appellant’s house on the night of his arrest on the charge of selling liquor, marked certain money, and delivered same to state witness Hopper, having called off and taken down the numbers of the bills before this was done. We do not understand the rule to be that no evidence can be introduced against . one on trial, except of matters and things that transpire in his presence. Such acts of preparation connected with and explanatory of the case, even though transpiring out of the presence of the defendant, are material and admissible. The bill of exceptions presents no error.
The liquor claimed by the state to have been sold by appellant was analyzed, by the, state chemist, who testified that it contained 35 per cent, of alcohol. There being no testimony supporting any proposition that there was any change in the liquor from the time it was obtained by the officers until it was examined by the state chemist, there was no error in refusing a special charge that the jury must believe beyond a reasonable doubt that the liquor contained in excess of 1 per cent, of alcohol by volume at the time it came into the possession of the state witness. The state witness testified that he bought a jug of liquor from appellant, and paid him the agreed price therefor. Appellant testified that he did not sell to said witness any liquor; and did not receive any money therefor. There was no evidence calling for a special charge to the effect that the jury could not convict, unless they believed that defendant intended to sell the contents of the jug.
Appellant claimed that the liquor in question was left in his field by one Charlie Briggs, who told him that it was for Ben Shaw, and that Ben Shaw would come and get it. Ben Shaw was with the officers and state witness Hopper when they went to appellant’s premises on the night the alleged sale of liquor was made. Appellant asked a charge in substance that, if the jury believed the jug of liquor was left in the field by Briggs for Shaw, and that appellant’s only connection with same was that he went out and showed them where the liquor was in the field, he should be acquitted. We think this amply covered by the main charge wherein the court told the jury that, if they believed from the evidence that a jug of liquor was left in defendant’s field by one Briggs to be called for by Shaw, and when Shaw and Hopper went to defendant’s house and inquired for the liquor that he went with them to the place where the liquor was located, and delivered same to Ben Shaw, or permitted Shaw to take possession of same, or if they had a reasonable doubt thereof, the jury should acquit the defendant.
We are unable to see the pertinence of a special charge that, unless the appellant owned the contents of the jug testified about and had title thereto, he should be acquitted, it is not necessary to make one guilty of a violation of the liquor laws of this state by selling such liquor, that the title to the liquor be in him.
The witness Hopper was the purchaser of the liquor from appellant according to his testimony, and under our statute is express*422ly exempted from the character of an ae-complice, and the charge of the court was not erroneous in failing to tell the jury that he was such accomplice.
Complaint is made of the fact that after witness Hopper and Shaw went down in the field' and got the liquor from appellant, as claimed by the state, and after they returned to the house, thatxthe officers went úp to said house, and found the appellant on the gallery, and that he made certain motions with his hands, and that the officers then proceeded to search his premises, and found under the house nearby the marked money given by them to the witness Hopper, and which Hopper claimed to have given to appellant. The acts of the appellant in secreting the money or throwing same under the house, or in making motions with his hands which might result in a conclusion that he threw the money under the house, are believed by us to be a part of the transaction, to elucidate it, to be voluntary and spontaneous, and made at such time- as to preclude the idea of any design, and the testimony of his action should be held as part of- the res gestae, and therefore not open to the objection that appellant was under arrest at the time. Hobbs v. State, 16 Tex. App. 521: Lewis v. State, 29 Tex. App. 204, 15 S. W. 642, 25 Am. St. Rep. 720; Craig v. State, 30 Tex. App. 621, 18 S. W. 297; Castillo v. State, 31 Tex. Cr. R. 152, 19 S. W. 892, 37 Am. St. Rep. 794; Griffin v. State, 40 Tex. Cr. R. 314, 50 S. W. 366, 76 Am. St. Rep. 718; Rainer v. State, 67 Tex. Cr. R. 87, 148 S. W. 735; Cortez v. State, 43 Texas Cr. R. 384, 66 S. W. 453; Pratt v. State, 53 Tex. Cr. R. 285, 109 S. W. 138.
Complaint is also made of testimony showing that appellant had theretofore been indicted for a felony. Appellant took the stand as a witness in his own behalf, and was asked about this. It was admissible for the purpose of affecting his credibility. Where the indictment has been dismissed or a trial thereunder resulted in an acquittal, this fact may be shown by the defense, for the piu-pose of supporting the credibility of the witness thus attacked. Jackson v. State, 33 Tex. Cr. R. 286, 26 S. W. 194, 622, 47 Am. St. Rep. 30; Burks v. State, 40 Tex. Cr. R. 167, 49 S. W. 389; Howard v. State, 53 Tex. Cr. R. 384, 111 S. W. 1038; Diseren v. State, 59 Tex. Cr. R. 149, 127 S. W. 1038.
Bills of exceptions Nos. 13, 15, 17, 18, 19, and 21 are so qualified by the trial court as that in no event could same be held to present any error. Several bills of exception appear in the record which present substantially the same matters as others which have been discussed.
We have carefully examined each of the contentions made by appellant, but believe none of same are sound or present reversible eirror. The motion will be overruled.