Clay v. State

<p>1. _Intoxicating Liquors—Manufacture—Sufficiency of the Evidence.</p> <p>Where, upon trial of the illegal manufacture of intoxicating liquor, the evidence sustained the conviction, there was no reversible error.</p> <p>2. —Same—Substitution of Indictment—Practice in Trial Court.</p> <p>Where, upon trial of the illegal manufacture of intoxicating liquor, the district attorney filed a written motion alleging the loss of the original indictment; that a substituted copy of said lost instrument was therewith presented, and asked for an order of the court directing the filing and substitution of said copy for the lost indictment, which motion was granted, and the indictment substituted, there was no reversible error. Following Bowers v. State, 45 Texas Grim. Rep., 185.</p> <p>3.—Same—Notice—Intention to Substitute—Practice in Trial Court.</p> <p>No injury was done to the defendant by reason of not having been sooner notified of the State’s Intention to substitute the lost indictment in the instant case, and there was no reversible error.</p> <p>4. —Same—Requested Charge—Indictment—Weight of Evidence.</p> <p>While the indictment contained two counts, one for manufacturing intoxicating liquor, and the other with possessing equipment for the manufacture of same, and the latter count was abandoned, and the jury instructed alone as to the oSense charged in the first count, there was no error in refusing a requested charge, that unless there were found certain equipment necessary for the manufacture of liquor, etc., as the same was evidently upon the weight of the testimony.</p> <p>5. —Same—Rehearing—Practice on Appeal—Indictment—Practice in Trial Court.</p> <p>This court cannot consider objections raised for the first time in motion for rehearing relating to the manner and form of the substituted indictment; besides, the substitution of a lost indictment is not illegal because it was made prior to the defendant’s pleading to the indictment. Following Withers v. State, 21 Texas Grim. App., 210.</p>