Appellant was convicted in the District Court of Hall County of transporting intoxicating liquor, and his punishment fixed at one year and six months in the penitentiary. *Page 464
It appears from the testimony that about the 26th of August, 1922, appellant was arrested on a road from Lakeview to Memphis and that in his car he had a half gallon jar full of corn whisky and a bottle spoken of as a quart bottle, about two-thirds full of the same stuff. Appellant lived about seven or eight miles west from the town of Lakeview in Hall County but at the time of his arrest was several miles east of Lakeview and going east. He had been seen in and around the town of Lakeview several times before he left going to Memphis. The jar of whisky was rolled up in a tow sack. Another witness testified that appellant told him that he was going to Memphis. At the time of his arrest appellant had been drinking. The defensive theory was that the liquor was being transported for use for medicinal purposes by appellant's wife. He testified to this himself. He also testified that it was election day and an election was being held in various voting boxes in the county and that he was on his way to Memphis with one Doster whom he was bringing to Memphis and they were about six miles east of Lakeview at the time the officers arrested appellant. On rebuttal the State witnesses testified that both Noble and Doster appeared to have been drinking at the time of the arrest, and one witness testified that they had been drinking quite a lot. It was in testimony that appellant told the officer who arrested him that he was not treating him right, and when the officer took the cover off the whisky appellant asked him to let it alone and said that he would see him the next day and make it all right. There was another bottle in a car which was empty but smelled as if it had had whisky in it.
We deem it not erroneous for the learned trial judge to refuse to give the peremptory instruction requested by the appellant. We do not think it error for the court to decline to grant a new trial based on the ground of misconduct of the jury, simply because the motion for new trial was sworn to by the appellant. No affidavit was attached to the motion, nor was there any oral evidence heard by the court. The motion was not itself offered in evidence. The motion for new trial is but a pleading as has been often decided by this court and will be so considered by the trial judge, and that will be our attitude toward it in the absence of a showing to the contrary.
The complaint shown by bill of exceptions No. 3 of the reception evidence of a statement made by appellant at the time he was stopped by the officer and his car searched, merely presents the fact that objection was made to said statement because at the time appellant was under arrest. The mere statement of a ground of objection is not tantamount to the establishment of the fact thus stated as ground of objection. There is nothing in the bill of exceptions from which we can determine the soundness of the objection. The statement of the witness to which the objection was made is as follows: "Mr. *Page 465 Noble told me at the time I stopped him that if I would let him alone he would see me tomorrow and make it all right." This is not sufficient to enable this court to determine that the accused was under arrest at the time.
There being no dispute of the fact in testimony that the liquor found in the possession of appellant and which he was transporting was whisky, the objection to the second paragraph of the court's charge presents nothing of harmful consequence. In such case even if the court gave an erroneous definition of intoxicating liquor, it would be of no avail. The court told the jury in a paragraph of his charge that it was unlawful for any person directly or indirectly to transport within this State spirituous, vinous or malt liquors capable of producing intoxication, unless such person came under one of the exceptions under which same may be transported as herein stated. Further on in the charge the court told the jury that if they believed appellant transported the liquor, still if they further believed that he transported it for medicinal use alone, or if they had a reasonable doubt as to whether he transported it only for medicinal purposes, they should give him the benefit of the doubt and find him not guilty. We fail to perceive wherein this is not a correct presentation of the law.
The only claim of need or desire for use of the liquor as medicine was on behalf of appellant's wife, it being asserted that she was in poor health and needed to use the liquor as medicine. That the learned trial judge in the charge in presenting appellant's right to an acquittal if he was transporting the liquor for medicinal purposes, — confined the right to transport it for such purposes or to such use only on the part of his wife, would not be error under the facts. Such limitation might be erroneous upon a different state of facts, but under the testimony in this case it was not open to the objection that it was too restrictive. We do not think this special charge seeking to broaden the right of appellant to carry the liquor for medicinal purposes so as to make it include such use for his family, was called for by the evidence; and we deem the refusal of the special charge not error. As we have above stated, there was no testimony suggesting the need for whisky, or that the purpose of transporting same was for medicinal use by anyone except the wife of appellant.
Appellant asserting that he was transporting the liquor for medicinal purposes, for the use of same as medicine by his wife, the State was entitled, for whatever it was worth as rebutting the proposition, to show that appellant was drinking at and before the time of his arrest. Such evidence tended to rebut the proposition that he was transporting the liquor for one of the excepted purposes. It was not erroneous for the court to refuse special charge No. 4 which contained the proposition that appellant had the right to transport the liquor for his own personal use or for the use of his family. *Page 466
The evidence supporting the verdict, and finding no error in the record calling for a reversal, the judgment of the trial court will be affirmed.
Affirmed.