Appellant objected to the charge for omitting to instruct the jury that if appellant "had no interest in the whiskey and it was under the control and in the possession of Cortinas" appellant should be acquitted. It is still insisted that such an instruction should have been given under the holding in Richardson v. State, 89 Tex.Crim. R., 228 S.W. 1094, notwithstanding the court told the jury that appellant could not be convicted if they entertained a reasonable doubt as to whether he knew the whiskey was in the car. We think the facts in the present case do not permit application of the principle of law announced in the case referred to. Richardson did not own the car in which he was riding as an invited guest and had no control over its operation or of the liquor in it. In the present case the car belonged to appellant. He was driving it when apprehended. If the liquor had been placed in the car by Cortinas and appellant drove the car with knowledge that the liquor was in it he was transporting the liquor regardless of whether or not he had any interest in it. Being in his car with his knowledge it was under his control in so far as transporting it was concerned. If appellant had loaned his car to Cortinas and he placed the liquor therein without appellant's knowledge or consent, when appellant *Page 460 discovered that his generosity was being imposed upon by transporting liquor in the car, he could not excuse himself from criminal liability when he made himself a party to knowingly furthering its unlawful use.
The record recites that appellant was present at the trial. No point was made during the trial or upon motion for new trial that he was absent during any part of the proceeding which resulted in his conviction. By a supplemental motion for rehearing in this court appellant for the first time attempts to raise the question by ex parte affidavits that he was on account of sickness absent from the court room during the taking of some evidence, and while the case was being argued, and when the verdict was returned, and that appellant never waived his presence nor authorized its waiver; that he was not on bail but in the custody of the officers of the court who were cognizant of his absence and the cause thereof. It is appellant's contention that the judgment is absolutely void under the circumstances recited in the affidavits. We do not discuss that point. It is sufficient to say now that this is a reviewing court only. If on account of sickness appellant was unable to be in the court room and the trial proceeded in his absence objection could have been urged when that condition arose, or upon motion for new trial, and the question have been preserved and brought before us for review by proper bill of exception. The matter cannot be raised in this court by ex parte affidavits filed here. Donohue v. State, 90 Tex. Crim. 541,236 S.W. 861.
The motion for rehearing is overruled.
Overruled.