Appellant again insists that the court below committed error in receiving evidence of what occurred in Runnels County, and in not permitting appellant to prove that he had been acquitted in the latter county upon a charge of driving an automobile while he was intoxicated.
As stated in our original opinion there was evidence before the jury from both appellant and the witness Hensley that appellant had been acquitted upon the charge in Runnels County.
Appellant asserts that he was being tried in Coleman County for the same criminal act of which he had been acquitted in Runnels County, and therefore was entitled to make more extended proof of such acquittal. We cannot agree that it was the same criminal act. The offense of which appellant was acquitted in Runnels County was driving an automobile while he was intoxicated. The present offense was for transporting intoxicating liquor. A person might be guilty of transporting intoxicating liquor and never upon the occasion in question, nor in his whole life for that matter, have taken a drink.
We are still of opinion that evidence of the movements of the car in Runnels County was admissible, not that appellant could in this prosecution have been convicted for what occurred in that county, but upon the ground that such evidence may have thrown light on the question under investigation, viz: — whether intoxicating liquor had been transported in Coleman County, and appellant's connection therewith.
The record shows that appellant, two young men, and two young ladies, started out on a "party" on the night of August 24th. They were in a car which belonged to one of the other boys. They drove to Talpa and Valera, both of which places were in Coleman County, and attended a dance at Talpa. Whisky was secured sometime during the night and before they were at the dance, for the evidence shows that they visited the car during the dance and had drinks from the whisky which was in the car. Miss Pierce, one of the young ladies, was taken to her home about four o'clock in the morning. Between then and seven o'clock the four others, including appellant, drove about the town of Coleman. At seven o'clock they again went to the home of Miss Pierce, took her into the car and started towards Ballinger, upon which trip the automobile wreck occurred. We quote from Miss Pierce's testimony relating to the *Page 543 movements of the parties on the night of August 24th, before she was taken home: "I went to a dance at Talpa that night (referring to the night of August 24th) with the parties whose names have been called * * * and got home about four o'clock the next morning. Ireland Hubert drove that car going to Talpa that night and Garland Futch drove that car part of the way back and Truman Ragsdale drove it home. * * * Truman Ragsdale was driving part of the way coming back. * * * I saw some whisky. It was in a fruit jar. That jar was down in the bottom of the car * * * it was on the Valera highway between Coleman and Valera. * * * As to whether we drunk two times between Talpa and Valera, well, they were small drinks * * * I saw them drinking between Valera and Talpa, but that was the night before and before the dance. I would say that they had all been drinking and in my opinion they were all pretty well lit, but when I said that I meant the night before (referring to the night of August 24th.) * * * I was traveling in Ireland Hubert's car that night. He drove that car part of the way and Truman Ragsdale drove it part of the time and Garland Futch drove it part of the time. They took me home about four o'clock in the morning and I remained there until about seven that morning. I do not know where they got this liquor. I had been in that car about an hour before I saw that whisky. They poured some of it out of the fruit jar into a glass but I did not see any bottle."
The foregoing testimony in connection with that of appellant himself which is set out in our original opinion leaves no doubt that the jury had ample testimony upon which to base the verdict. The State was not required to rest their case on what occurred up to seven o'clock on the morning of August 25th, but if the whole case pointed to the transportation of whisky on that morning in Coleman County, and what transpired in Runnels County threw light upon what may have occurred in that regard in Coleman County, the transaction in Runnels County was admissible.
Believing no error occurred upon the trial which would demand a reversal, the motion for rehearing is overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.