213. We see nothing in the introduction of a bottle containing poison which can be held to be objectionable by invoking the rule which in some cases has been used to exclude the bloody clothing of a deceased or the weapon with which the homicide was committed.

Bill of exceptions No. 8 complains of the fact that witness Tucker, who lived at the town of Girard on the day of the homicide, was permitted to say that he did not see the accused with her husband at Girard on said day. This bill does not show that the witness Tucker saw either one of said parties on said day, and we can only infer therefrom that he saw neither of them. No error appears.

By a lengthy bill of exceptions setting out the whole testimony of the witness, complaint was made of the reproduction of the testimony of Mrs. Maud Cook, a witness who had testified in person at a former trial of this case. It was shown by evidence that Mrs. Cook had since removed to the State of Oklahoma and was making it her permanent home, and that she was not present. The court stenographer who took down her testimony at the former trial testified, as a predicate, that he took her testimony correctly and that he wrote out his notes correctly, and that the transcript of such evidence, which was read to the jury. was a correct copy of said notes. These matters have been often before this court and settled contrary to appellant's contention. The testimony of a witness may be reproduced who had confronted the defendant in a court of competent jurisdiction and had been examined and cross-examined or opportunity given therefor, who has since died or removed beyond the jurisdiction of the court.

In a vigorous motion for new trial the sufficiency of the evidence was assailed. We have given this matter careful attention and 1egret our inability to agree with counsel in their earnest contention in this regard. While the evidence showing motive is very slight, we have often held it not necessary to show motive in a murder case. That deceased came to his death from strychnine poison was unquestioned. That appellant bought a bottle containing strychnine a few days before his death, was equally unquestioned. She and her husband were occupying a dugout or storm cellar as their abode, the door of which was but a short distance from a house occupied by the family of a brother of deceased. According to the State's testimony, on the evening or night of said occurence, after appellant and deceased had retired to their home, appellant came back to the house and reported that deceased was ill and suffering with cramps. Ira Cook, the brother, and his wife went at once and found deceased stooping over, holding himself and apparently suffering. Ira asked him what was the matter and he said that appellant gave him poison, stating that she begged and begged him to take it and he did it to please her. Several witnesses for the State testified to the conduct of appellant from that time until the death of her husband and afterward, and all seem to agree that she gave no evidence of emotion, did not cry or seem to be affected in any way. Ira Cook stated that while they were trying to do something for deceased he asked ap

pellant to run to a neighbor's and get some alum but that she went away in a walk. A young lady who was at the home of said neighbor testified that when appellant came for the alum they gave her a small quantity and she started back; that witness found some more and started running after appellant, overtook her and was going to continue rapidly but appellant told her it was no need to run, she might make herself sick, there was no need to get scared in a case of that kind. On the second day after the death of deceased a bottle containing strychnine was found in the mouth of a prairie dog hole near the residence. The track of a woman's shoe was found in the soft earth near the mouth of said dog hole, and one of appellant's shoes was fitted: into the track in the presence of witnesses. It was further shown by the woman who sold appellant the strychnine that she asked her what she was going to do with it, and appeilant said she was buying it for a man who came out to the road as she was coming to town and asked her to get it for him, and that she was buying it for him and did not know what he wanted with it. Appellant testified that she did not tell this to said woman, but that she bought the strychnine for her husband and gave it to him. She said she had some quinine in a paper in her trunk, and that on the day before her husband died she got some capsules, and he and she together filled four of them with said quinine and that on the night he died she took a capsule herself, and as there was but one left she gave it to her husband but did not know whether he took it or not. She said she had not seen the strychnine bottle since she had bought it and brought it home and gave it to her husband. No complaint seems to be made by any exception to the charge of the court, and upon the issues of law and of fact fairly submitted the jury found appellant guilty and have seen fit to assess her punishment at the lowest term of years allowed by law. We cannot convince ourselves that their verdict is unsupported by the testimony.

Finding no error in the record the judgment will be affirmed.

Affirmed.

ON REHEARING.

December 14, 1921.

LATTIMORE, JUDGE.-But two reasons are advanced for the granting of a rehearing. One relates to the admission in evidence of a bottle of strychnine similar to the one in which was strychnine purchased by appellant a very short time prior to the death of her husband. We cannot bring ourselves to believe that material error, if any, was committed in admitting in evidence this bottle. The finding of said bottle in the unusual place where same was discovered, shortly after the alleged poisoning and near the home of appellant where the poison was taken, would have criminative force. While the bottle itself was not

that which killed, it was the container of the deadly agent and would be apparently admissible for as many reasons as would the pistol, in a proper case, with which deceased was shot. Sanchez v. State, 67 Texas Crim. Rep., 453, 149 S. W. Rep., 124; Collins v. State, 77 Texas Crim. Rep., 156, 178 S. W. Rep., 345; McBrayer v. State, 34 S. W. Rep., 114; Jackson v. State, 48 Texas Crim. Rep., 650. See, also Canon v. State, 59 Texas Crim. Rep., 398. Appellant received the lowest punishment for the crime of murder. It being alleged that the murder was committed by poisoning, she could have been convicted of no lower degree of homicide. We have held in a case where the accused received the lowest penalty that the exhibition in evidence even of the bloody garments of the deceased was not such error as would call for a reversal. Long v. State, 48 Texas Crim. Rep., 179.

We have again reviewed the record in the light of the other complaint made by appellant, which is, that the sheriff of a county other than that of the prosecution was asked to take charge of the jury for a short time. The exhaustive brief in support of the motion cites many authorities which discuss the question of improper communication with a jury and the policy of the courts to decline to speculate as to the effect of such communication where the proof shows same to have taken place. We cannot see the relevancy of such authorities to the question involved. There was no communication between said sheriff and the jury during the short time he was in charge of them. The fact of communication was wholly negatived. We regret our inability to agree with the contentions and the motion must be overruled. The motion for rehearing is denied.

Overruled.

ISAIAH DAVIS V. THE STATE.

No. 6487. Decided December 14, 1921.

Intoxicating Liquors-Possession-Repeal of Statute-Sale.

Where the so-called Dean Law was so amended that the mere possession of intoxicating liquor is not now an offense, unless it is alleged and proved that same was possessed for the purpose of sale, the appeal in this cause must be reversed and dismissed.

Appeal from the District Court of Upshur. Tried below before the Honorable J. R. Warren.

Appeal from a conviction of the unlawful possession of intoxicating liquors; penalty, one year imprisonment in the penitentiary.

The opinion states the case.

Florence & Florence, J. P. McClelland, and J. B. Crosby, for appellant.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Conviction was for possession of intoxicating liquor, with the penalty assessed at one year in the penitentiary.

This court has recently held that under the late amendments to what is known as the Dean Law, the mere possession of intoxicating liquor is not an offense, unless it is alleged and proved that same was possessed for the purpose of sale. No. 6423, Cox v. State, 90 Texas Crim. Rep., 256; 6510 Petit v. State, 90 Texas Crim. Rep., 336; 6493 Francis v. State, 90 Texas Crim. Rep., 339. (All decided at this term of court but not yet reported.)

Under the foregoing authorities it becomes necessary to reverse the judgment of the trial court and order the prosecution dismissed, which is accordingly done.

Reversed and dismissed.

COLUMBUS SHADDIX V. THE STATE.

No. 6445. Decided November 16, 1921.

Rehearing denied December 14, 1921.

1. Intoxicating Liquor-Manufacturing-Statement of Facts.

Where the alleged statement of facts was not approved by the trial court, the same could not be considered on appeal. Following Flagg v. State, 69 Texas Crim. Rep., 107, and other cases.

2.-Same-Leave to Withdraw Statement of Facts.

Where appellant made a motion for leave to withdraw the alleged statement of facts in order to have the same authenticated, which motion was not filed, and did not show sufficient diligence why the statement of facts was not approved in time, the same could not be considered.

3.-Same-Jury and Jury Law-Talesman-Prohibitionist.

We know of no reason why a prohibitionist or one of opposite view is ipso facto disqualified as a juror upon trial of the manufacture of intoxicatisg liquor in violation of the law, and there was no error.

4. Same-Illicit Still-Search Warrant-Trespasser.

Testimony of one who found an illicit still upon the premises of another, to the fact of such finding, is not subject to objection that there was no search warrant, and that the party so finding were trespassers; besides, no overt act was shown.

5.-Same-Witness on Indictment-Rebuttal-Surprise.

That the State used witnesses whose names were not on the indictment would not present any reversible error, nor was there shown any surprise.

6.-Same-Evidence-Bill of Exceptions-Cross Examination.

Where the court's qualification to the bill of exceptions stated that the testimony objected to was elicited from the witness by defendant's counsel, this would destroy the effect of the bill of exceptions that the answer was not in response to the question.

7.-Same-Purposes Excepted by Statutes-Liquor Law-Requested Charge -Burden of Proof.

Defendant's special charge, that the burden was on the State to show that the liquor in question was not manufactured for one of the purposes excepted by Statute, was properly refused. Following Robert v. State, 90 Texas Crim. Rep., 135, recently decided.

8.-Same-Bill of Exceptions-Evidence-Rebuttal.

In the absence of a statement of facts, etc., an exception to the rebuttal testimony of certain witness cannot be considered on appeal.

9.-Same-Sufficiency of the Evidence-Bill of Exceptions.

Upon appeal, in the absence of a statement of facts, the sufficiency of the evidence to support the verdict cannot be reviewed on appeal.

10.-Same-Rehearing-Bill of Exceptions-Forcible Entry.

Where there is nothing in the bill of exceptions which shows any forcible entry upon the premises where the still was found, or any other act connected with the finding of said still which would bring the testimony within any of the cases referred to by defendant in his motion for rehearing, the same must be overruled.

11.-Same-Rebuttal Testimony-Surprise-Practice in Trial Court.

Our procedure permits one on trial to make application for continuance or postponement 'n the event unforseen testimony is offered against him, and in the absence of such application in the instant case, there was no error in permitting certain witnesses to testify in rebuttal.

Appeal from the District Court of Cass. Tried below before the Honorable Hugh Carney.

Appeal from a conviction of unlawful manufacture of intoxicating liquor; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

Henry G. Nelson and C. R. Newland, for appellant.-On question of testimony about finding the still: Youman v. Com., 234 S. W. Rep.,. 860.

On question of charge and burden of proof: Todd v. State, 229 S. W. Rep., 516; Burciago v. State, 228 id., 562.

On question of prohibitionist on jury: Vellareal v. State, 189 S. W. Rep., 156.

On question of seizing still without search warrant: Youman v.. Commonwealth, 234 S. W. Rep., 860.

On question of names of witnesses on indictment: Allsup v. State, 210 S. W. Rep., 196.