Conviction for transportation of intoxicating liquor; punishment, two years in the penitentiary. *Page 335
There are five bills of exception in this record. The first complains of the refusal of a continuance. The application so obviously lacks a showing of diligence that it seems unnecessary to discuss it. No subpoena had been issued in the case for the absent witness.
The fourth bill of exception complains of the introduction in evidence of two bottles of whisky and certain broken bottles found by the sheriff in connection with the arrest of appellant. This bill presents no error. Bill No. 5 complains of the overruling of the motion for new trial based on the insufficiency of the testimony. The testimony seems amply sufficient.
Bills of exception 2 and 3 raised the question of the correctness of the refusal of a charge on circumstantial evidence. Officers observed appellant in Crosbyton acting in such way as caused them to follow him and a companion when they later drove out of town. The record contains the testimony showing how long and in what manner the officers followed the car. The movements of appellant in circling out from the road and making a wide turn through a cotton field in an apparent effort to escape from the pursuit of the officers, is described. The sheriff of the county, one of said officers, testified that as appellant made the turn out through the cotton field witness saw him throw a pint bottle out of the car. We quote from the testimony of said officer:
"I saw where he threw it and I went back and picked it up and I knew it was a pint bottle when I went back and picked it up. I know it was one of these bottles that he threw. I drove back that night and found this one and I know positively and swear to the jury that this is the bottle he threw out. I recognized the place where he threw it and I drove right back there and picked it up."
This testimony manifests that the case is not on circumstantial evidence. The bottle found by the officer was exhibited by him to the jury and its contents declared to be whisky. The issue in this case is the transportation of whisky. We have here the direct and positive testimony of an eye-witness who swears that he saw appellant, while driving his car, throw out of the car a bottle, and this same witness swears that he knows that he picked up the same bottle and that it contained whisky. Bills of exception 2 and 3 present no error.
The judgment will be affirmed.
Affirmed. *Page 336
ON MOTION FOR REHEARING.