On Motion for Rehearing.
LATTIMORE, J.In our original opinion we overlooked the fact that the judgment found the appellant guilty both of the offense of possession'and of transporting intoxicating liquor. These two offenses were charged in the indictment in separate counts, the first being for the possession and the second for the transportation of such liquor. The court only submitted the latter. The judgment and the sentence will each be reformed, so as to show appellant to have been adjudged guilty and sentenced for transportation of intoxicating liquor. Our attention is also called to the fact that the sentence failed to give to appellant the benefit of the indeterminate sentence law. The sentence will be so reformed as that it will condemn appellant to confinement in the penitentiary for a period of not less than one nor more than four years, in conformity with said law.
We have carefully considered each of the other matters set up in appellant’s motion for rehearing. As stated in our original opinion, there is nothing in the bill of exceptions complaining of the ruling of the court admitting in evidence the intoxicating liquor, and allowing the jury to consider same, which would warrant us in concluding that the jury tasted or otherwise illegally used the liquor thus introduced. The bill of exceptions making a complaint must make it clear to us that the complaint is wefi founded and that injury resulted.
We find nothing in the record showing that the testimony of the witness who testified to the fact that the liquor found in appellant’s car was alcohol, and that part of same was whisky, was not based upon qualification or knowledge. This complaint rests upon the same basis as to insufficiency as the one just discussed. In the absence of a showing in the bill of such lack of knowledge or disqualification of the witness, we must presume him to be deemed by the trial court qualified.
We are also of opinion that there is no showing that the search made by the sheriff and officers was without probable cause. That the car occupied by appellant was stopped upon the highway after a lengthy chase, and after the occupants had refused to stop when called upon repeatedly so to do by the officers, seems without dispute. Nor is there any doubt of the fact that, when so stopped, the officers observed cans and articles covered up in the car which might be deemed sufficient to cause suspicion in the breast of a reasonable man. Still, upon further observation, we note that no search was made of the car until after a search warrant had been obtained.
Deeming the motion without merit, same will be overruled.