Appellant was convicted in the District Court of Floyd County of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.
The testimony shows that on July 4, 1922, the appellant was at Lockney in an Essex car. Later in the day appellant in said car was *Page 474 in the town of Floydada. The car was driven up to a point not far from the courthouse in Floydada where it stood until it was searched by officers and in it was found a quantity of whisky. Witnesses testified that at various times before the search was made by the officers, appellant went to the car and gave them whisky to drink. Prior to the arrest of appellant a deputy sheriff said he went to the car and found three parties there with whisky and that appellant was one of them. One of the party asked the officer if he wanted a drink and receiving an affirmative reply poured him out whisky in a glass from a bottle. Other whisky in a half-gallon fruit jar was found in the car. There was also a jug containing corn whisky in it. Paul Foster testified that he saw the defendant that night at a dance in Floydada and was asked by appellant if he wanted a drink. The two went together to the car in question and appellant reached in and got a bottle. Witness said appellant told him he was not selling it, that he did not have any to spare. Ernest Grigsby testified that he saw the car in question on a street in Floydada before it was searched and that it was going south and went about 150 feet, then turned east, went about 150 feet and parked just south of the courthouse. This was the same car witness had seen in Lockney that afternoon when defendant was driving the car. This witness said from the time he saw the car driven along the street till it stopped no one put anything into it; that he was paying close attention and that if anyone had put a fruit jar and a jug of whisky in the car he would have seen it. This witness also stated that he saw the car searched and that no one put any whisky in the car from the time he first saw it until it was searched; that he was where he could see the car all the time; that he saw persons going out to the car and stay a while and go away and leave it; that these parties came from the dance hall. Witness was twenty or thirty steps away when the officers made the search and had observed the car all the time. Witness was working for the city marshal. On one of the trips made by appellant to the car from the dance hall he asked witness if he would have a drink and gave him one. The car is spoken of by witnesses as being that of the appellant. No testimony was offered on behalf of the defense.
Appellant has three bills of exception in the record. The first complains that a deputy sheriff was permitted to testify on behalf of the State that he had tried to locate the young women who were in the car when it came to Floydada, for the purpose of serving a subpoena upon them and had been unable to find them in the county. The other bill complains that the district attorney offered in the presence of the jury two written statements, accompanying the offer with the statement that he now offered in evidence the statement made by each of the young women who were in the car. The objection of the appellant to this latter was sustained and the jury instructed not to consider *Page 475 any statement made by the district attorney in regard to said matter. The remaining bill of exceptions was taken to the argument of the State's attorney to the effect that while the defendant was at Lockney and before coming to Floydada, he was putting out liquor. Upon request of the appellant the jury were instructed not to consider this remark. There was some evidence before the jury to the effect that appellant and his companions in the car at Lockney were drinking on the morning before the evening of the arrest at Floydada. This would appear to be foundation for the inference drawn by the district attorney in the remarks made by him which were objected to. We think the action of the district attorney in offering in evidence before the jury the written documents, accompanied by the statement that he was now offering the evidence of the young women who were in the car with appellant, was erroneous. With reference to the complaint of proof of the effort to have process served upon the two young women, we note that it is disclosed by the statement of facts that they were in the car with appellant when he came to Floydada, and it was further shown that they were girls from the town of Lockney. This being in the record, if the State had made no effort to obtain their testimony or place it before the jury, this could have been the subject of adverse criticism by appellant in the presentation of his case in the absence of a showing of an effort on the part of the State to procure said witnesses. In view of the fact that the evidence seems almost without controversy to show the guilt of the appellant, and that the jury have fixed his punishment at the lowest penalty allowed by law, we would hold that the error of the offer before the jury of that which would seem to be known to the district attorney to be inadmissible testimony, was not such error as to call for a reversal of the case.
The judgment will be affirmed.
Affirmed.
ON REHEARING. May 28, 1924.