Appellant makes a sufficient showing that the caption of the transcript herein incorrectly stated the day of the adjournment of the trial term. It now appears that the court below did not adjourn until November 5, 1927, and that the recognizance was made during the term. The appeal is re-instated, and the case will now be considered on its merits.
We find two bills of exception in the record. The first complains of the overruling of appellant's motion for a continuance. It appears that when the motion was presented the trial court heard evidence, which is incorporated in the bill, and from same we are of opinion no error was committed in the overruling of said motion. The witnesses named therein had not been served with process. The testimony heard supports the proposition that said witnesses went away from the county of the prosecution in order to assist appellant in an effort to get the case continued. Before leaving home the witness Whitely, chiefly relied on in said application, is shown to have stated that he knew nothing about the case.
The second bill sets out the objection of appellant to the introduction of the testimony heard by the court upon the presentation of the application for continuance, the ground of objection being that defendant was not present when the statements were made by Whitely, and further that the testimony now heard was in the presence and hearing of the jury panel and therefore prejudicial to the rights of the accused. This bill is qualified by the statement of the trial judge *Page 638 who says that when the witness who testified to the statement made by Whitely, was giving testimony he was sitting near the judge's desk in giving his testimony to the judge. It is further shown that during the examination of the jury panel on their voir dire none of them were asked if they heard the testimony of these witnesses, nor whether such testimony would affect their verdict. No motion was made to quash the jury panel because they may have heard such testimony, nor was any challenge made to any juror because of such fact. The court approves the bill with the statement that it was presented to him after the adjournment of court, and states as follows: "No bill of exception was taken and filed during the term of court at which this case was tried." The law now does not require such bill to be filed during the term.
The bill presents no error.
The testimony seems amply sufficient to support the finding of the jury. The officers searched appellant's premises with a search warrant at which no exceptions are leveled and found many fruit jars hidden in various and sundry places around over the premises, and according to the testimony of the officers each of the fruit jars smelled of whisky. More than a quart and a half of the liquid itself was found in these containers.
No error appearing, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.