The offense, the unlawful transportation of intoxicating liquor; the punishment, two years in the penitentiary.
The state's testimony, in brief, was as follows: Two peace officers of the city of Tyler had been out to the fair grounds and when they returned to town a funeral procession was coming by on Peach St. in the city of Tyler. They drove up to an intersection of the street and waited for the funeral procession to pass. While they were stopped there, the appellant came by and drove around their car and two or three other cars that were stopping there; that about the time the appellant got even with the car the officers were in, he looked around and recognized them and *Page 295 kept looking back, first one way and the other. When the funeral procession had passed, appellant pulled in behind the officers and came on towards town ahead of them. When they had gotten about two blocks from where they had stopped, they drove up and tried to Stop the appellant and instead of stopping he went up a little side street and got up to where some ditch diggers were digging a water ditch and when he got to that place he met another car and since there was only room for one car to pass he was forced to stop his car and let the other car pass. By that time the officers were up by the side of appellant's car and when they stopped their car both of them jumped out and went towards appellant's car. At that time appellant stooped over in the front part of his car and the officers heard a crash and when they looked in the car they found a half-gallon jar of buttermilk had been broken and they saw in appellant's car a half-gallon jar of whisky which had not been broken. When the appellant was getting out of the car after his arrest, the officers noticed that he fumbled with his belt and one of the officers said, "What is the matter, have you got some more liquor there under your belt?", and the appellant said, "Yes," and started to reach for it. The officers took hold of him and found another pint of liquor.
The appellant did not testify and offered no evidence.
By bills of exception 1 and 2 appellant complains of the receipt in evidence of the testimony showing the result of the search of the automobile, it being claimed that probable cause did not exist at the time of the search. Appellant's counsel contends that this was fundamental error and it is such as can be raised at any time. The record shows that no objection was made to the introduction of the testimony showing the search of the automobile at the time of the trial of the case and no motion was made to exclude said testimony, but the matter was raised for the first time on the motion for new trial. It is insisted that we should consider these matters because appellant had no attorney representing him, although no objection or exception was taken to the introduction of said testimony. In all cases, in order to call for a review of the action of the trial court upon the receipt or rejection of evidence, an objection to same must be introduced. The objection to the evidence may be waived and is waived unless proper objection is made or timely motion to exclude is presented and proper bill of exception reserved exhibiting the ruling and the complaint thereof. See Fisher v. State,108 Tex. Crim. 332, 1 S.W.2d 301.
By bill of exception No. 3, defendant shows that after his conviction he filed and presented his motion for new trial alleging that at the time of his conviction he had not been served with a certified copy of the indictment, and the failure to furnish him such certified copy was fundamental error and for that reason he should have a new trial. The bill, as qualified, shows that defendant had been charged with the same offense by complaint and at the time of the presentment of the indictment was on bail and at no *Page 296 time was there any request made for a copy of the indictment. Article 489, Code of Criminal Procedure, provides: "When the accused, in case of a felony, is on bail at the time the indictment is presented, it is not necessary to serve him with a copy, but the clerk shall on request deliver a copy of the same to the accused or his counsel, at the earliest possible time. Said bill as qualified shows no reversible error. Johnson v. State, 4 Texas App., 268; Abrigo v. State, 29 Tex. Crim. 143,15 S.W. 408; Lightfoot v. State (Texas Crim. App.),77 S.W. 793.
Appellant also contends in his brief that he was convicted and sentenced for two offenses at the same trial. Appellant was charged in the first count in the indictment with the unlawful transportation of intoxicating liquor, and in the second count with the unlawful possession of intoxicating liquor for the purpose of sale. The court in his charge to the jury only submitted the charges contained in the first count in the indictment, that is, the offense of unlawfully transporting intoxicating liquor. The verdict of the jury was that they found the defendant guilty as charged and assessed his punishment at two years confinement in the penitentiary. The judgment of the court found the appellant, A. S. Wilson, guilty of the offense of transporting intoxicating liquor as found by the jury, and the sentence followed the judgment. Therefore, the contention of the appellant cannot be sustained.
We note that the verdict of the jury assessed appellant's punishment at two years in the penitentiary, and the judgment and sentence fixed his punishment at a straight term of two years in the penitentiary. Said judgment and sentence will therefore be reformed so as to fix appellant's punishment at an indeterminate term of not less than one nor more than two years in the penitentiary, and as so reformed, no reversible error appearing, the judgment will be affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.