Miller v. State , 98 Tex. Crim. 621 ( 1924 )

The conviction is for possessing intoxicating liquor for the purpose of sale; punishment, one year in the penitentiary.

Only two bills of exception appear in the record which the State suggests cannot be considered on account of delayed filing. The trial court adjourned on October 25th; sixty days were granted in which to file statement of facts and bills of exception. The sixty days expired on December 24th; within the period of the extension, on to-wit December 20th, an additional fifteen days were granted; this extension expired on January 9th; on January 11th after the expiration of the second extension the court undertook to grant an additional five days. The order made on January 11th was ineffective. Orders extending time for filing, if made after court adjourns, must be made before the expiration of prior extensions, and cannot be made afterwards. Palmer v. State, 92 Tex.Crim. R.,245 S.W. 238; Griffin v. State, 59 Tex.Crim. R., ___ S.W. ___; Funston v. State, ___ Tex. Cr. R. ___, 251 S.W. 1076. The bills here were not filed until January 16th, and are not entitled to consideration.

The contention is made that the evidence is insufficient to support the verdict. The state relied upon circumstantial evidence to make out its case. It is impracticable to set out here in detail all of the testimony relied on. It appears that appellant and his family lived with his father, W.M. Miller, who was a man 82 years of age. On the night of May 30th a search was made of the premises where appellant lived and in a barn were found two fifty gallon barrels covered with tubs. The barrels had a small quantity of mash in the bottom and marks of mash extended from there up to the top. There was also a corn sheller and a corn grinder in the same room and in another room of the barn was found some meal in a sack. A number of empty bottles were scattered about, some of them bearing the odor of whiskey, and a trace of whiskey in a few of them. In a chicken house about twenty-five feet from the barn was a stone jug in which was a small quantity of white liquid which was apparently corn whiskey, and bearing the odor of it; buried in the chicken house was discovered about seventy-five pounds of wet mash in sacks. In the afternoon prior to this search at night appellant was seen in a pasture something like a mile from where he lived; scattered around him there were a number of bottles of the same kind found in the barn that night. Some of the bottles scattered about in the pasture had a small quantity of corn whiskey in them. A day or two after the night search of the premises where appellant lived another search was instituted, and about forty or fifty yards from the barn buried in the ground where the brush was so thick it was necessary to crawl in some places were found eleven bottles containing whiskey, five bottles buried in one place and six in another. The foregoing are the chief criminative facts relied upon by the state and in our opinion they were sufficient to authorize the jury in reaching the conclusion they did.

Finding no error in the record the judgment is affirmed.

Affirmed.

ON REHEARING.