The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
On the 27th day of November appellant was arrested. He was observed on the public road near a Buick roadster automobile which was standing on the road and which was apparently in possession of the appellant. No one else was present, and he did not at the time indicate that the automobile belonged to or was under the control of any other person. The sheriff, without disclosing his identity, had a short conversation with appellant before his arrest. In this conversation, appellant said that he had a "puncture" but needed no help; also that he had a drink of whisky but did not have a load. When the sheriff revealed his identity, the appellant started to get in the car. The sheriff insisted on inspecting the contents of the car and found a number of gallons of whisky. Other persons came upon the scene, and one of them (Burton) drove the Buick roadster to Rockwall at the request of the sheriff. The appellant was released on bail the next day and on his release took possession of the automobile. When discovered, the curtains on the car were up. The road on which the arrest was made ran from Dallas to Greenville, Texas, and persons living near the road testified to having, on the same morning, seen a car of the same description traveling on the road in the direction of the place at which appellant and the sheriff met. But one person was seen in the car. Witnesses on behalf of appellant testified that about the day before the arrest, inquiry had been made for the appellant by one, Charley Cooper, also that the appellant and Cooper, about that date, were seen talking together and that Cooper had suggested to appellant that he accompany him to Dallas. Testimony was also introduced to the effect that a man answering the description of Cooper was seen at Greenville on the morning on which the arrest was made and that he and the appellant were at the time in an automobile together. *Page 505
A motion to continue was made to secure the testimony of Charley Cooper. Subpoena for said witness had been requested on October 19th though no service had been had. At the same time a subpoena was issued in a companion case for the same witness, which was served. According to the motion, the appellant expected to prove by Cooper that the car and the whisky were under his control and that appellant had no interest in them; that appellant was in the car solely as the guest of Cooper, in response to an invitation extended on the day before the arrest. From the qualification of the bill it appears that the indictment was returned in June; that no request for a subpoena was made until October and then it was not made under oath; that after his arrest and discharge on bail, appellant claimed and took possession of the car and in a sworn motion claimed ownership of the whisky.
In another bill, appellant challenges the right of the court to embrace the matters mentioned in the qualification of the bill, particularly that relating to the motion to repossess the whisky. This apparently was a part of the record in the case and a matter within the judicial knowledge of the court. See C.C.P. Art. 929; Dunn v. State, 92 Tex.Crim. Rep.; Miller v. State,92 Tex. Crim. 259, 242 S.W. Rep., 1040. The repossession of the automobile appears from the evidence. The fact that the witness Cooper was subpoenaed in the companion cases was not available to show diligence. Roberts v. State, 89 Tex.Crim. Rep., 231 S.W. Rep. 759. Particularly is this true in the absence of testimony showing that diligence would not have resulted in the discovery of the error in failing to serve the subpoena at a time when it could be corrected. The delay in issuing process for Cooper from June to October is a circumstance bearing both on the question of diligence and upon the probable truth of the alleged testimony of the absent witness. The fact that Cooper would have given testimony of his own guilt of the offense charged against appellant or that by delay he could have been produced as a witness is not so pertinent as to justify the conclusion that in overruling the motion the court abused his discretion. The motion for new trial was supported by no affidavits fortifying the motion for a continuance.
To invoke a review of the action of the trial court in refusing to read to the jury a requested charge or in refusing to amend his original charge in response to the objections addressed thereto, the record must be so shaped that it will inform this court that there was exception reserved to the action of the court. See Linder v. State, 94 Tex.Crim. Rep., 250 S.W. Rep., 703 and cases therein referred to. Several assignments in the instant case are based upon the refusal of special charges and the refusal to amend the main charge. It is not made to appear that any exceptions were *Page 506 reserved to the court's action. The declarations of the appellant which were proved we think were not shown to have been made while he was under arrest. Even if so, they were res gestae. See Broz v. State, 93 Tex.Crim. Rep., 245 S.W. Rep., 707.
The statements by the sheriff and other witnesses that they had tasted the liquor and that it was whisky and was intoxicating were available. Proof that the liquor in question was whisky did not require the testimony of a technical expert. The question was discussed in Cathey's case, No. 7794, not yet reported. See also Black on Intoxicating Liquors, Sec. 520.
The examination of the liquid in the fruit jars and containers in the presence of the jury did not constitute error. The burden was upon the State to prove the nature of the liquid. Its appearance and taste were relevant upon that issue. The identity of the articles was also the subject of proof. See Black on Intoxicating Liquors, Sec. 520; Commonwealth v. Stevens,142 Mass. 457.
The fact that an automobile answering the description of that found in the possession of the appellant had been seen traveling along the same road and about the same time with a single person occupying it was not irregular and immaterial. It was a circumstance available to the State to establish its theory that the appellant alone was the occupant of the car and that it was in his possession. The bills of exception complaining of this matter are not sufficiently specific to show any error in that they do not give the surrounding facts, but if they be considered in connection with the statement of facts, the evidence, the admission of which complant is made in them, was, in our opinion, admissble.
Appellant's attorney, according to the bill of exceptions as qualified, stated to the jury "that Charley Cooper was with the appellant and was the driver of the car and that he was in a railroad cut nearby at the time the car was found." Replying to this argument, counsel for the State said "that no witnesses testified that there was no one else present at the time the appellant was seen by the witness Hall." Hall and several other witnesses saw the appellant alone in possession of the automobile. None of them testified to the contrary. We regard the contention that the argument offended against the rule with reference to the failure of the accused to testify as unsound. The qualification of the bill showing that the argument was invited is challenged by the affidavit of appellant's attorney. The affidavit is not available for that purpose. An exception to the qualification is the proper remedy. Thomas v. State,82 Tex. Crim. 609, 200 S.W. Rep., 402. In the argument, the prosecuting attorney said that appellant claimed that the car belonged to him. The sheriff testified that appellant, after his *Page 507 release, on bail, claimed the car and took charge of it. The bill as qualified shows that the remark was justified by the record.
We fail to discern any legal ground for reversing the judgment. It is therefore affirmed.
Affirmed.
ON REHEARING. October 24, 1923.