I cannot agree to the granting of appellant's motion for rehearing, or the reversal of this case. There is no dispute of the guilt of appellant of transporting intoxicating liquor on the occasion in question. No claim was made that such transportation was for any purpose excepted by our Constitution. If the motion be granted and the case be reversed, it must be for reasons based on the supposed illegal search of appellant's car by the sheriff. One seeking to escape punishment for a felony of which he is clearly guilty, upon such ground, should be held to the same strictness in presenting his defense, which he seeks to exact of the State in making out its case.
Five bills of exception are in this record, the sufficience of none of which was considered by this court in the preparation of its original opinion herein. Bill No. 1 sets out that Sheriff Allen testified, among other things, as follows:
"Beneficio, the defendant, then came over and talked to the Mexican that I had in the car with me, while he was talking to the Mexican in my car, I got out of my car and walked over to his car, and looked in his car, I did not get up in his car; I just walked to the side of the car, and just looked over in his car.
"When I first looked in, I did not move or touch anything at all; I just stood on the ground in the road and looked in his car. It *Page 632 was a five passenger car; I looked in the back of the car, I looked from the ground into the back of the car. By "looking into the car," I mean that I merely cast my eyes over there; I didn't use my hands and move anything at all.
"In the back of his car, there was something in a grass sack. It was between the seats, lying between the front and back seats on the floor of the car. That grass sack and something in it could be seen from the place where I was standing, without moving or touching anything at all. * * *
"We were both driving when we met, and when he stopped his car I am pretty sure that I backed up to where he was. The other Mexican that was with me is Machado, who was convicted here on Monday, I found out afterwards that he knew the defendant; I didn't know that he did. I imagine when I stopped that there was eight or ten feet between the two cars, something like that; the cars were pretty close together. The defendant came over to my car and talked to Machado. He talked to Machado; and I believe that I walked over to the car before he came back; by the time I got over to the car, I am pretty sure that Tendia walked to the car, but he was standing at my car when I left my car. He walked back to his car. When I went to his car, he went back also.
"Standing on the road by the side of Beneficio's car I say that I saw a tow sack with something contained in it."
This testimony thus set out was clearly not open to any objection made. Said bill shows that all this testimony, together with other, was given by the officer and objected to in solido, by a blanket objection made alike to all this admissible testimony, as well as to other facts of doubtful admissibility. There is probably no better settled rule of procedure in this State than that such a bill of exceptions is insufficient. If part of the testimony set out in a given bill, be admissible, — and part not, and the objection made be to the whole, such bill is not good. Bedgood v. State,109 Tex. Crim. 104; Smith v. State, 105 Tex.Crim. Rep.. In Smith v. State, supra, Payton v. State, 35 Tex. Crim. 510; Gaines v. State, 37 S.W. Rep. 333; Tubb v. State,55 Tex. Crim. 623; Cabral v. State, 57 Tex.Crim. Rep., and Solosky v. State, 90 Tex.Crim. Rep., are cited. See also Smith v. State, 105 Tex.Crim. Rep.; Sapp v. State,87 Tex. Crim. 606; Leal v. State, 106 Tex.Crim. Rep.; Arredondo v. State, 106 Tex.Crim. Rep.; Rutherford v. State, 277 S.W. Rep. 669. Mr. Branch in Sec. 211 of his Annotated P. C., cites many authorities supporting *Page 633 this rule. Bill of exceptions No. 2 is in exactly the same condition as the one just referred to.
Bill of exceptions No. 3 sets out lengthy objections to the introduction in evidence of a jug of whisky, at the conclusion of the statement of which objections, said bill states that the court overruled the objections and admitted the evidence. Under all the authorities a bill which merely states the objections made and in no-wise verifies the facts thus stated as objections, is not a good bill. Neely v. State, 100 Tex. Crim. 76; Pasos v. State, 100 Tex.Crim. Rep.; Hughes v. State, 100 Tex.Crim. Rep.; Rufony v. State,93 Tex. Crim. 380; Oliver v. State, 97 Tex.Crim. Rep.; Rambo v. State, 96 Tex.Crim. Rep.. Bills Nos. 4 and 5 complain of the refusal of special charges, refusal of neither of which presents error. Since the three bills of exception mentioned cannot be considered without doing violence to rules too well settled to permit of disregard, the writer forbears discussion of the contents of said bills further than to say that he is in accord with the conclusion reached and announced in the original opinion.
Being unwilling to sanction a reversal when the bills of exception are unquestionably in the condition above set out, and the guilt of the appellant is undenied, I most respectfully enter by dissent from the judgment granting the rehearing and reversing the cause.