The appellant was tried and convicted in the district court of Shelby County for transporting intoxicating liquor and his punishment assessed at one year in the penitentiary.
The testimony briefly stated in this case shows on the part of the State that the appellant and two or three other parties were in a truck and drove up to the town of Dreka where the deputy sheriff was and that he, said deputy, went out to examine the truck and appellant jumped off of the truck and started to run and was overtaken by said deputy and about a quart of whiskey was recovered from him. The deputy testified that it was corn whiskey and that he turned it over to the district clerk; Sanford, and the witness Sanford for the State, testified that it was the same material that the deputy turned over to him and that it was whiskey and in the same condition in which he received it. The appellant offered no testimony in rebuttal of the contention of the State with reference to the transportation, and in fact offered no evidence at all, except as to his mental condition, and made the contention that the State's evidence did not show that the liquor taken from him was intoxicating. As above stated, both of said witnesses for the State testified that same was whiskey. We think the testimony was amply sufficient to show that same was intoxicating. In Branch's Ann. P. C. Sec. 1237, it is stated: *Page 436 "Proof that the liquor was alcohol or whiskey is sufficient to show that it was an intoxicant", citing Hambright v. State,60 Tex. Crim. 253, 131 S.W. 1123, and many other authorities to the same effect.
The appellant in this case has not favored us with a brief but we find in the record eight bills of exception. In bill number one, complaint is made that the verdict is contrary to the law and the evidence in that it is proved beyond a reasonable doubt that defendant was of unsound mind. It is admitted in said bill that the court fully charged the jury upon the question of insanity but the complaint is lodged against the action of the jury in not sustaining said insanity plea of the defendant. It is true that the appellant introduced several non-expert witnesses who after relating what they deemed was evidence of an unsound mind upon the part of the appellant stated that in their judgment the appellant was not of sound mind. The State contented itself upon this issue by proving the action of the defendant at the time of and just prior to his arrest and attempting to conceal the whiskey in question and to elude the officers and by introducing a doctor and having him testify upon the hypothesis predicted upon the theory of the witnesses for the defense. This issue, being an issue of fact left to the jury, and the court properly charging the jury thereon, and their decision against the contention of the appellant on a converted issue, would be binding on this court, and under such circumstances we would be unwarranted in interfering with the decision of the jury thereon.
In bill of exception No. 3, complaint is made to the court permitting the State's witness, Brittain, to testify to having taken the whiskey from the defendant and delivering same to the clerk and that it was the same identical whiskey which he took from the defendant, and that said evidence failed to show that same was intoxicating. We are unable to agree with this contention and as above stated said witness and the said district clerk both testified that it was whiskey and same was properly identified by both witnesses as being the same whiskey taken from the defendant.
In bill of exception No. 5, complaint is made to the action of the jury in returning a verdict so quickly, contending that the jury by reason thereof failed to give proper consideration to the issues involved. We fail to see any force or merit in this contention, and know of no rule of practice or law requiring any specified time for the jury to reach a verdict.
In bill of exception No. 7, complaint is made to the action of the court in not granting a new trial, because it is alleged that new testimony had been discovered since the trial of the cause, to the effect that the defendant thought that he had to run just prior to and at the time of his arrest because the other parties in the truck told *Page 437 him to run or he would be arrested and was handed the whiskey by the other parties in the truck. The defendant made an affidavit to this effect that after the verdict of guilty was returned, stating that he told his lawyer about this matter immediately after the verdict was reached. It is contended in said bill that owing to the condition of the defendant's mind that he did not make known these facts to his attorney until after the trial. The law in such matters is well established by this court to the effect that in order to obtain a new trial on newly discovered evidence it must be shown that the party was diligent and not for the want of proper diligence that said testimony was not discovered prior to the trial and that same upon another trial would likely result favorably to the defendant. In this instance, it is clearly shown that the defendant knew all of the alleged facts prior to the trial and made no effort to secure said evidence so far as the record discloses; and, therefore, does not come within the requirement of the statute in such cases. It is evidently sought to made an exception of this case to the general rule by urging that the reason same was not known by the attorney was on account of the defendant's mind. The jury having found appellant was sane the rule would apply as to ordinary cases relative to newly discovered evidence.
In bill of exception No. 8, complaint is made because it is alleged that the defendant is indicted in the name Gilford "Runnels", while the evidence shows that his wife spelled her name "Reynolds" and said bill states that the "court erred in refusing to quash the indictment upon the motion of defendant's attorney." We fail to find any motion in the record to quash the indictment because of a variance between the name alleged in the indictment and the proof, but the record discloses that said question was raised in the motion in arrest of judgment and in motion for new trial, so we assume that the appellant by the above statement in referring to motion to quash evidently was referring to motion in arrest of judgment and new trial. At any rate, the bill is not in shape to show any error in the ruling of the trial court. If the defendant's name in the indictment was improperly stated, it was his duty to call the court's attention thereto and have same corrected before he pleads to the indictment, otherwise it is waived. Branch's Ann. P. C., Sec. 466, citing Kinkead v. State, 61 Tex. Crim. 651,135 S.W. 573.
We have examined the record carefully and fail to find any error committed by the trial court in this case, and the judgment is accordingly affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 438
ON MOTION FOR REHEARING.