Appellant was charged by indictment with unlawfully transporting intoxicating liquors in Van Zandt County and *Page 396 convicted in the district court of said county on January 22, 1924, of said offense, and his punishment assessed at one year's confinement in the penitentiary; from which conviction he has appealed to this court for a reversal upon complaints set out in his bills of exception from 1 to 9, inclusive.
The facts, briefly stated from the record, show that appellant started alone on horseback from Eustice, in Henderson County, and others on horseback and in a hack from the same place, and all apparently going to the same destination, but before reaching Needmore, in Van Zandt County, appellant overtook the hack and got off the horse he was riding and rode in the hack, and one Burns got out of the hack and rode the horse that appellant was riding along with the hack into Needmore, where they all took lunch, and when they started out to get in the hack a deputy sheriff arrested appellant and found whiskey in the hack and on the horse that he had been riding. Appellant kicked the bottles or jars which contained the whiskey gotten out of the hack and broke them immediately after his arrest.
The first complaint raised is to the refusal of the court to grant him a continuance for the testimony of Mr. and Mrs. Andrews and one Hobert Fugate, alleged in said application to be for the purpose of proving by them that the hack had left Eustice before he did and that he left on horseback. Appellant failed to testify in the case, but the witness Fugate was placed on the witness-stand in support of the motion for a new trial and for the purpose of showing that the court erred in overruling the application for continuance, but the other two witnesses did not appear. The witness Fugate in his testimony did not sustain the material allegations in the application, but testified to appellant's overtaking the hack before they had reached Needmore and getting off his horse and riding in the hack, and to the effect that he did not know where the defendant was that morning prior to that time, and that the horse that the whiskey was found on was ridden by appellant and was owned by him and that the team, consisting of the horses and the hack that the whiskey was found in, was the property of appellant. The uncontradicted evidence shows that appellant did not leave Eustice at the same time that the hack did, and we see no error in overruling this application for continuance, because the fact that the appellant left Eustice by himself and not with the hack would have no material bearing on this case to show that he was not interested in the whiskey in question or owned same.
There are several bills of exceptions in question and answer form, and under the statutes and the decisions of this court we are prohibited from considering same. Art. 846, C. C. P.
Appellant complains of the action of the court in admitting evidence relative to finding the whiskey on the horse, because it did *Page 397 not show that he had any connection with it. We can not agree with this contention, because the evidence discloses that he owned the horse and rode the horse up to within a short distance of where the whiskey was found, and that they were all traveling together at the time the whiskey was found, and we think it was a circumstance — at least it was admissible — to prove the contention of the State.
Appellant also complaint of the action of the court in permitting witnesses to testify to his kicking and breaking the jars or bottles with the whiskey in them and which were taken out of the hack at the time of his arrest, because he was then under arrest. This evidence was clearly admissible on the grounds of res gestae. Roberts v. State, 269 S.W. 103; Newman v. State, 269 S.W. 87.
There is also complaint upon the part of appellant to the introduction in evidence of the bottle of whiskey taken off the horse, upon the ground that the appellant was not shown to have any connection with it. What we have said above disposes of this contention against the appellant.
We have carefully considered all of the questions raised by the appellant in the case, and we are forced to the conclusion that there is no error shown in the record, and the judgment of the trial court should be affirmed, and it is accordingly so ordered.
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.