The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year and six months.
The appeal was dismissed on a former day of this term because the record failed to affirmatively disclose that the judge trying the case had fixed the amount of the appeal bond. On authority of Wooten v. State, Number 11,401, this day decided, the appeal should be reinstated. It is, therefore, ordered that the opinion dismissing the appeal be withdrawn, and that the appeal be reinstated. *Page 501
Considering the case on its merits, it appears that appellant pleaded not guilty to the offense of transporting intoxicating liquor, but admitted on the witness stand that he transported twelve bottles of beer from the residence of Mrs. Hill to the house where he roomed. He further testified that he and the state's witness, Jewel Chipman, drank the beer. The state's testimony showed that said liquor was intoxicating.
Appellant objected to the failure of the court to instruct the jury that the state's witness Jewel Chipman was an accomplice. The testimony of said witness was in no sense essential to the conviction of appellant. He admitted that he transported the liquor in question. In this condition of the record the matter complained of does not constitute reversible error. Jones v. State, 1 S.W. Rep. 2d Series, 617; Wilkerson v. State, 245 S.W. 430; Forson v. State, 234 S.W. 913; Fisher v. State, 197 S.W. 189.
By bill of exception Number 1 appellant complains of the refusal of the court to permit him to ask the state's witness Jewel Chipman if the beer in question was not in fact transported by him at her special instance and request for her use for medicinal purposes. The bill fails to show what the answer of the witness would have been and in such respect is insufficient to entitle it to consideration. Moreover, as qualified by the court it is shown that at the time the question was asked the witness had been recalled by the state for the purpose of proving venue, and that both appellant and the state's witness had already testified that the beer had been transported for beverage purposes. The bill fails to manifest error.
Bill of exception Number 2 is insufficient. "A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such objection was made. The defendant should incorporate so much of the evidence in the bill as would verify the truth of his objections." Branch's Annotated Penal Code, of Texas, page 134.
By bill of exception Number 3 appellant complains of the action of the court in permitting the state to ask the state's witness Jewel Chipman leading questions. The court's qualification of the bill shows that Jewel Chipman was an unwilling witness and unfriendly to the state and that under such circumstances it was deemed necessary to permit the district attorney to ask her leading questions in order that the truth of the matters inquired about might be elicited. As qualified, the bill fails to manifest error. *Page 502
Other questions are presented which we have not undertaken to discuss.
Failing to find reversible error, the judgment is 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.