Appellant files a motion for rehearing which exhibits care and research, but we are not able to agree with any of the contentions made.
Regardless of whether the application for continuance be held a first or a second application, the diligence is wanting. While an application for witnesses appears to have been made within a short time after appellant was arrested, in the controversy of diligence filed by the State appears the statement that this application was not filed in this case but in a companion case. We have to conclude that the trial court found against appellant on the issue of diligence. The record also shows several requests for postponement by the appellant, and that the case was postponed from time to time. *Page 506
When the State meets an objection to testimony relative to the finding of liquor in the appellant's house, or possession, which rests upon the illegality of the search therefor, by a showing that other witnesses gave the same, or substantially the same, testimony as that given by the officers in relating the result of their search, it is not deemed necessary that the witnesses other than the officers should go so far as to state that the liquor found was intoxicating. In this case the officers testified to finding a quantity of beer, and appellant's wife also testified that the officers found said beer. It was not necessary that the wife testify that the beer was intoxicating in order to bring the case within the rule above referred to.
The bill of exceptions complaining of argument sets forth in the objections made to such argument that the same was without support in the testimony, but this amounts to no more than a mere statement of a ground of objection. The court does not certify in his approval of the bill, nor does the bill otherwise make apparent, the fact that there was no testimony upon which such argument had foundation.
We have again reviewed the complaints of the charge of the court and without discussing same in detail, are of opinion that the charge was a fair presentation of the law applicable to the facts in the case. We do not think any of same calculated to mislead the jury, or that the jury misunderstood the language of the trial court.
We do not regard it as necessary that the court should instruct the jury that the fact of an indictment being returned, is not evidence of guilt. There is no showing in the record that any juror so far failed of what any intelligent juror ought to know, as to make necessary the giving of such instruction.
The motion for rehearing will be overruled.
Overruled.