Appellant for the first time apparently insists in his motion that the indictment herein was a nullity because nothing appears in the record to show that the special term of the district court at which the indictment was returned, was duly and legally called in accordance with the law. He refers to Hickox v. State, 253 S.W. Rep. 823. We find nothing in the opinion in that case which can be used as authority to support the contention now made.
The motion at some length re-states the same grounds of complaint urged by appellant in the original presentation of his case. He insists that the evidence wholly fails to show a transportation of intoxicating liquor by him. The principal State witness testified that on the occasion in question he and a companion were invited by appellant to take a ride with him in a car; that they got in and after riding out in the country some distance appellant produced from his pocket a bottle of whiskey of which they all drank. This so clearly shows the transportation of the liquor that further argument on the point seems unnecessary. Appellant also now insists that the witnesses for the State were accomplices. The legal proposition that joint transporters of intoxicating liquor are not accomplices under our present liquor laws, has been so often discussed by the court that it is unnecessary to refer to authorities. The witnesses were not accomplices.
Appellant again insists that for the court to stop his attorney in his improper argument and tell him that the matters being discussed were not such as he might legitimately discuss before the jury, and thus reprimand him in the presence of the jury, injured appellant's rights. We are not inclined to agree with this contention. The matter attempted to be discussed in the presence of the jury was so wholly foreign to any issue involved in the case as that we regard it entirely proper for the learned trial judge to instruct counsel to desist.
Each of the matters brought forward in appellant's motion were considered and passed upon in our original opinion, *Page 659 and no new authorities are cited in the motion, and we see no reason for altering our conclusion as heretofore expressed.
Our Brother Morrow adheres to his views as expressed originally.
The motion for rehearing will be overruled.
Overruled.