In view of the condition of the record and the affidavits filed for the purpose of showing the excuse for the delay in filling the bills of exceptions, a discussion of the motion is doomed expedient.
According to the State's testimony, Officer Foote was possessed of a warrant to search the appellant's automobile. The description of the automobile was given in the search warrant. The witness saw the car upon the street, followed it and ultimately overtook it where the appellant had stopped it. He was riding on the front seat under the steering wheel. His wife *Page 243 and another lady were riding on the seat with him. Upon searching the car, the officer found a five-gallon jug of whiskey in the back, two one-gallon jugs full of whiskey, another one-gallon jug almost full, and also a quart bottle in between the appellant and his wife. According to the officer not more than five minutes elapsed from the time he first saw the appellant until the search was made; that he was constantly in sight of the witness. The officer said that he handed the search warrant to the appellant.
The wife of the appellant testified that while they were driving they observed a negro following them, and that before the arrest the car had been parked some fifteen minutes; that she was out of the car part of the time; that she had not seen any whiskey in the car and did not know of the presence of the jugs or other containers. The transaction took place at night. She said that there was nothing in the car at the time they left their home.
The appellant testified in his own behalf. From his testimony we take the following quotation:
His testimony was in substance that he went to the Longshoresmen's Hall to meet a negro by the name of Curley, who had control of a band. Appellant was conducting a dance hall and wanted to engage a band. He stopped his car and walked a half block to see Curley. The car remained stationary for about fifteen minutes. When he returned to the car, he found the officers there. They searched the car and found some whiskey, the amount of which he did not know. He was not shown any search warrant. He did not put the whiskey in his car and did not know how it came to be there.
The appellant further testified that there were no other indictments pending against him in Jefferson County of which he was aware. He said that a good many years ago there was an indictment for assault to rape against him, but he could not tell whether it had been dismissed or not; that they threw one away two years ago; that at the present time he was not under indictment for rape that he knew of; that he had one case ready for trial, but that they did not try it, but told him they would dismiss it; that he had never been tried before.
The district clerk was called as a witness and testified that in a certain case the appellant was charged with the unlawful possession of intoxicating liquor; that the trial resulted in a disagreement of the jury, and in July, 1926, the case was dismissed; that at the present time there were two indictments *Page 244 pending against the appellant in the 60th Judicial District Court; that one was for rape and the other for assault to rape; that both of these cases were undisposed of.
In bill of exceptions No. 1, complaint is made of the testimony of the district clerk showing that the appellant had been indicted for the unlawful possession of intoxicating liquor and that after a mistrial the case was dismissed; also that the state was allowed to prove by the testimony of the same witness that there were pending at the time of the trial two indictments for felony: one for rape and one for assault to rape. The appellant having testified in his own behalf, it was competent upon cross-examination to ascertain from him whether he had been under indictment for a felony. See Lights v. State, 21 Tex.Crim. App. 308, and numerous other cases collated in Branch's Ann. Tex. P. C., p. 101, Sec. 167. Subd. 1. The appellant's testimony upon the subject tended to deny the pendency of any indictment against him at the time of the trial and is quite indefinite as to any previous indictment for violation of the law against engaging in the liquor traffic. Under these circumstances it was competent to introduce testimony showing the previous indictment and the pendency of indictments for felonies as was done in the present case. See Brazos v. State, 33 S.W. 540; Lee v. State, 45 Tex. Crim. 52; Wilson v. State, 78 S.W. 232; Robinson v. State, 156 S.W. 212.
In bill No. 2 there is complaint of the receipt in evidence of the testimony of the officers showing the result of the search of the appellant's automobile. The ground of exception is that the search warrant was based upon an insufficient affidavit. This appears merely as a ground of objection and fails to set out the search warrant or state its substance. To require attention of the reviewing court, it is essential that the fact or facts upon which the appellant relies as condemning the ruling of the court of which he complains be set out in the bill, or a portion of the statement of facts showing the vice to be pointed out in the bill. The mere recital of the ground of objection is not a compliance with this requisite. See Robbins v. State, 272 S.W. 175; Pahlka v. State, 100 Tex. Crim. 605; Vernon's Tex. C. C. P., Vol. 2, p. 364, Art. 667, note 23. From the bill before it, this court cannot know the contents of the search warrant; neither can it assume that the trial court received evidence which was obtained under an insufficient search warrant. In the absence of a showing in the bill to the contrary, the presumption obtains that the court's ruling was correct. *Page 245
The evidence supports the verdict. No erroneous ruling of the trial court has been pointed out, for which reason the affirmance of the judgment and the refusal to change the ruling upon rehearing, when considered in connection with the entire record, must be upheld.
The motion is denied.
Motion denied.