Conviction for transporting intoxicating liquor, punishment one year in the penitentiary.
The statement of facts consists of the testimony of only one witness. He testified that in company with another officer he discovered a jar of whiskey covered up on the Hico road, about two miles south of Stephenville, in Erath County. Witness secreted himself and watched. Appellant and another man in a car appeared. They stopped the car not far from the whiskey. They did not cut off the motor. Appellant got out of the car, climbed over the fence, walked to the point where the whiskey was secreted, raked the leaves off and picked up the whiskey, turned around and started back to the car, and had gone about fifteen feet with the whiskey in his hand when witness told appellant to put the whiskey down and stick up his hands. The party in the car drove rapidly away. We deem these facts amply sufficient to support the conclusion reached by the jury. Mendosa v. State, 290 S.W. 1100; Franco v. State, 287 S.W. 272; Benson v. State, 287 S.W. 1097; Lambert v. State, 255 S.W. 424; Lee v. State, 255 S.W. 425; Coburn v. State, 255 S.W. 613.
Four bills of exception appear in the record. Each has been carefully examined. We deem it perfectly proper for the state witness to testify that he and the other officer went to the pasture where the whiskey in question was found; also to state that the car in which appellant came to the place where he got the whiskey, was driven rapidly away; that witness called to the driver, who did not stop, but came away in the direction of town.
There is complaint of the fact that the District Attorney said to the jury in argument, "Why didn't the defendant call out to him to come back here, we are not violating any law?" The bill is qualified by the trial court who states that appellant's counsel had argued to the jury that appellant did not try to get away, was not violating any law, and was not responsible for the party running off in the car, etc., and the State's Attorney was only replying to this argument. We perceive no error in this argument.
Appellant has a bill of exceptions complaining of the fact that the State's Attorney said to the jury: "It is uncontradicted in this record that this was corn whiskey and intoxicating," it being contended that this was a reference to the failure of the appellant to testify. We are unable to agree with the contention. There is nothing in the record contradicting the testimony *Page 459 of the state witness to the fact that the liquor which was taken from the possession of appellant was whiskey.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.