The appellant was convicted in the District Court of Collingsworth County for the offense of transporting liquor and his punishment assessed at confinement in the penitentiary for a term of two years.
Appellant complains in his bill of exceptions No. 1 at the court's action in overruling his application for a continuance and in his brief he terms this application as his first application. The bill of exceptions, however, and the application itself, fails to show whether it is a first application or a subsequent application, and when the bill of exceptions taken to the refusal does not show whether it is a first or subsequent application, it will be presumed to be a subsequent application. Massie v. State, 30 Tex.Crim. App. 64,16 S.W. 770; Roma v. State, 55 Tex.Crim. Rep.,116 S.W. 598.
The defendant alleged:
"That he expects to prove by said witness, who was his wife and who was in the car with him at the time the offense is alleged to have been committed, that the defendant did not put the alleged whiskey in the car and did not know the contents of the jug and bottle found therein by the officers until just before the officers stopped the car when a third party to whom *Page 525 said alleged whiskey and jug and bottle belonged and who was in the car at that time told the defendant to throw out said jug and bottle, and that then when the officers stopped the car was the first time that this defendant knew the contents of the jug and bottle or had any knowledge of what they were supposed to contain."
The foregoing is taken from the motion for a continuance and it shows on its face to consist almost wholly of the conclusions of the witness, and the court was not in error in refusing to grant the continuance to enable the said witness to give such testimony.
Appellant further alleged, however, that he expected to prove by this witness that she saw one Jess Preston place said jug and bottle in said car and heard him tell this defendant on inquiry that said jug and bottle were being taken to his father who lived in Wellington, that they belonged to him. This testimony was probably admissible and we cannot say that it was not material but it does not follow that reversible error was committed in the court's failure to grant a new trial on account of the overruling of the motion for a continuance, for the statement of facts shows that the witness Harvey Henry testified to practically the identical facts that appellant expected to prove by his wife. The record shows that appellant, Jesse Preston, Harvey Henry and the absent witness, appellant's wife, were riding in a car that contained a jug and a bottle of whiskey and that appellant threw the whiskey out of the car when they met the officers who made the arrest. As explaining this conduct, appellant sought a continuance for his wife, in order that she might give the testimony above detailed. As above stated, this was a subsequent application for a continuance and we are warranted, therefore, in saying that the testimony of the absent witness would have been cumulative of the testimony of Harvey Henry, whom the statement of facts show testified as follows:
"When we got out of the car Shorty (appellant) said to Jesse, 'What is that there in there Jesse'? And Jesse said, 'That is a water jug that I had out there that I brought from my dads.' He said 'I am carrying it home.' That is all I heard, and that was all that was said about it. I didn't hear anything said about the bottle. He just said that that was a water jug that he borrowed from his dad and was carrying it home. Shorty was in the car when he asked Jesse that. I was in the car with them when we met the officers. Just before we got to the bridge and about the time we passed their car there I heard Jesse say to Brown, 'Yonder is the law,' and he said, 'Throw that jug out *Page 526 there, it has got whiskey in it.' He said, 'There is a bottle there in the door, get that out.' That is all I heard him say. Shorty then made a grab for the jug and throwed it out."
Under this condition of the record, the court properly refused to grant a new trial on account of the absence of the appellant's wife.
Bill of exceptions No. 2 complains at the court's action in refusing to sustain a challenge for cause to the juror Holcomb. The court's qualification to this bill shows that the juror testified on his voir dire that he could and would try the case according to the law and the evidence in the case and that he knew nothing about this particular case and had no opinion as to the guilt or innocence of the defendant in this particular case. This bill was accepted by the defendant with this qualification, and as qualified, the bill shows no error.
Bill of exceptions No. 3 complains at the court's action in permitting the state to show that some mash and other equipment for making whiskey was found at appellant's residence after he was arrested. The qualification to this bill shows that this testimony was withdrawn from the jury both by oral and written instructions. Under these circumstances, the bill shows no reversible error.
We are unable to say that the court was in error in refusing a new trial on account of the misconduct of the jury. The testimony as to what occurred in the jury room was conflicting and, after a careful consideration of the same we are not able to say that the court abused his discretion in overruling the motion for a new trial.
Finding no error in the record, it is our opinion that the judgment should be in all things 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.
ON MOTION FOR REHEARING.