Appellant was charged by indictment in the district court of Kimble County with unlawfully transporting intoxicating liquors and convicted in said court of said offense on the 7th day of September, 1923, and his punishment assessed at one year's confinement in the penitentiary; from which conviction he has appealed to this court upon errors assigned and set out in his bills of exception from 1 to 4, inclusive.
Bill No. 1 complains of the action of the court in not postponing the case for want of the testimony of the witness Riddle, who was alleged to have resided in said county, which application was overruled by the court apparently for the want of proper diligence, and we are unable to say that such ruling was erroneous.
Appellant complains of the action of the court in permitting the State's witness Randle to testify that at the time of the arrest of appellant Will Taylor was drunk, upon the ground that same was immaterial and calculated to inflame the minds of the jury and prejudice them against him. The undisputed testimony shows that the defendant and said Taylor left Junction City together, had gone some seven or eight miles in the country and returned together, and had reached the bridge near the town of Junction, where the defendant was arrested and his car searched for whiskey, and, if the testimony of the State's witnesses is to be believed, whiskey was found therein and was being transported in said car at said time. This being the State's contention, any act of either of the parties while together and acting together or their appearance that would tend to prove that whiskey was then being transported would be a circumstance admissible in favor of the State, and we are unable to agree with the contention of the appellant in this particular. We are not unmindful of the fact that a great deal of testimony upon the part of the defendant was introduced to show that neither Taylor nor himself was under the influence of whiskey or even had whiskey at *Page 151 the time; but, upon the other hand, that was a controverted issue in the case, sharply contested on both sides, and an issue left entirely to the jury to pass upon, and not the court.
In bill of exception No. 3 appellant complains of the action of the court in not instructing the jury to return a verdict of not guilty, and what we have said with reference to the issues above mentioned will dispose of this contention.
The fourth bill of exception raises the complaint against the action of the trial court in overruling the motion for new trial on account of the alleged discovery of material testimony since the trial of the case, in which there is set out at length quite a volume of testimony that would, if introduced upon the trial, tend to prove the contention of the appellant. But, under the decisions of this court, which are now the well settled law of this State, that on account of said bill of exception not having been filed within the term of said court, we are unable and not authorized by the statute or the decisions to consider same. Vineyard v. State, 96 Tex. Crim. 401,257 S.W. 548, and authorities there cited.
Appellant in his brief complains of not having sufficient time to prepare and file this bill of exception before court adjourned, the motion for new trial being acted upon on the day of adjournment.
The record fails to show any request to the court to continue the term for this purpose or the court's refusal to do so, nor does the record show that the motion should not have been acted upon prior to said date.
The record discloses a hotly contested trial of this case in the lower court, in which there was much evidence introduced both by the State and especially by the defendant on the issue as to whether or not defendant at the time alleged was transporting intoxicating liquors. In fact, that is practically the only issue presented in the case. The jury would have been warranted in finding a verdict in behalf of the defendant or in behalf of the State, depending upon which witnesses they believed to be telling the truth in the matter. That issue being left entirely to the jury, when passed upon by them this court would not be authorized under such circumstances to interfere with same.
After a careful investigation of the entire record, we find no reversible error of the trial court, and therefore the judgment of the lower court is accordingly 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. *Page 152
ON MOTION FOR REHEARING.