Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.
Officers appear to have accidentally come across appellant in possession of a quantity of whisky, some two gallons. Appellant took the stand in his own behalf and testified that on the day in question he asked Mr. Moore, whose place of business adjoined that of the appellant, if he might ride in the car with Mr. Moore down to a certain place, — Moore having told him beforehand that he was going down that way at that time. He further testified that he went with Moore, and got down to the place of one Brant and got two gallons of whisky from Brant, same being in fruit jars. He further testified that not having the money to pay Brant, the latter started back with him in the car of Moore. He also affirmed the fact that Moore did not know of the presence of the whisky in the car. When they reached the place where the officers later came upon them, he said Moore got out of the car and left it for some purpose, and while Moore was gone he and Brant occupied themselves in emptying the whisky out of the fruit jars into twenty-four pint bottles, and that while so engaged the officers came upon them. Appellant defended upon the proposition that his health was bad, and that he got the whisky in question for use as medicine. This defense appears to have been submitted to the jury in a satisfactory way, and the verdict evidences the jury settlement of this question adversely to appellant.
It is made to appear that Moore was indicted for complicity in the same transaction. When appellant's case was called for trial he made no request for severance, nor did he suggest in any way that he desired that Moore be first tried. Some weeks after appellant's conviction, Moore was tried and acquitted. Thereupon appellant filed an amended motion for new trial setting up Moore's acquittal, and asking that he be given a new trial in order that he might avail himself of Moore's testimony. The refusal of this new trial is made the subject of a bill of exception. *Page 124
We observe that appellant's amended motion for new trial was not sworn to. It appears uniformly held that one seeking a new trial under such circumstances must either by himself or his attorney make affidavit to a motion in which is set up the newly discovered evidence, in this case consisting of that of Moore. Tuttle v. State, 6 Texas App., 556; Barber v. State,35 Tex. Crim. 70, 31 S.W. 649; Parroccini v. State,90 Tex. Crim. 320, 234 S.W. 671; Nothaf v. State,91 Tex. Crim. 378; 239 S.W. 215; Hays v. State, 95 Tex. Crim. 550,255 S.W. 426. We further observe that the facts expected of Moore are not set out in the motion for new trial. It is required not only that the facts be set out, but it must appear that they are material and would probably affect the result upon another trial. Tanner v. State, 116 Tex. Crim. 28,32 S.W.2d 465; Flewellen v. State, 113 Tex. Crim. 22,18 S.W.2d 1087. Under the facts of this case, according to the story told by appellant, and reasonable belief that Moore would swear upon another trial in line with what appellant testified, we see no ground for concluding that Moore's testimony, even if the motion for new trial had been in proper shape, would be of any value to appellant. Appellant did not claim that Moore knew anything about his wanting the whisky for medicine; in fact, he emphatically denied Moore's knowledge of any part of the whisky transaction.
Appellant has five bills of exception, one of the complaints being of the court's refusal to submit the law of circumstantial evidence. This court uniformly holds that when the main fact, which in the instant case was the possession of intoxicating liquor, be proved by direct evidence, as was done both by that of appellant and the officers, it will not be a case on circumstantial evidence because of a claim of innocent intent, or that he possessed it for some purpose permitted by statute. Mr. Branch cites many authorities on page 1039 of his Annotated P. C., holding that when the question is as to the intent of a party only, the issue is not one requiring a charge on circumstantial evidence.
Appellant being more than twenty-five years of age at the time of his trial, which took place before the taking effect of the recent statute permitting defendants over twenty-five years of age equally with others, to have the benefit of the suspended sentence law, was not entitled to have that issue submitted to the jury. There was no error in the court's refusal of a peremptory instruction of acquittal.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.