Bernal v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

In addition to the reasons assigned in our original opinion as supporting the action of the trial court in refusing the continuance, we further observe that the testimony attributed to the absent witness was of such indefinite character and its admissibility so questionable as to remove any element of doubt as to the correctness of the refusal of said continuance. It is stated in the application that by the absent witness defendant expected to prove that “while the witness was seated on the porch of the St. James hotel, a stranger called at the hotel and asked if three grips had been brought to the hotel by a little short Mexican service car driver, thereby corroborating the statements of these defendants at the time of their arrest that the grips containing the intoxicating liquor seized by the rangers had been delivered to the defendants as service car drivers by some person they believed to be a passenger arriving at the depot in the city of Corpus Christi, and further tending to establish the fact that these defendants did not unlawfully transport this liquor.” It will be observed it is not stated that any of the conversation was addressed to the witness, nor is any attempted description given of the stranger, nor of the party whom he expected to bring the grips to the hotel, nor is it shown that the party to whom the" conversation was addressed could not be had as a witness. In reference to that part of said testimony asserting the statements of the stranger to be corroborative of those of the defendant when arrested, we observe that neither in the testimony of appellant nor of the officers regarding the conversation had at the time of the arrest, was it claimed that appellant stated had he obtained the grips containing the intoxicating liquor from some stranger at the depot. Quite the contrary appears. Both officers who participated in the arrest testified that that appellant told them at the time that his co-defendant, one Godoy, who was in the car with him, had nothing to do with the liquor, that it belonged to appellant. We might further observe that the motion for new trial is not accompanied by the affidavit of the absent witness stating that he would testify to any of the facts set up in the application for continuance.

We observe no error in the action of the court submitting to the jury the law applicable to both counts in the indictment, viz: transportation of intoxicating liquor, and possession of same for purposes of sale. The two charges were each supported in the testimony. . The jury were instructed to find by their verdict under which count, if any, they found appellant guilty, and in compliance with this instruction they found him guilty under the first count.

The charge in the indictment was the transportation of intoxicating liquor, and the testimony showed conclusively that the liquor found in appellant’s car in which he was transporting it was tequila and that it was intoxicating.

There is nothing in the record supporting appellant’s contention that he was not tried by a legal jury.

Being unable to agree with any of the contentions made by appellant, his motion for rehearing will be overruled.

Overruled.