Innis v. State

Conviction for transporting intoxicating liquor; punishment, two years in the penitentiary.

At a former term of the court below two indictments had been returned against appellant charging him respectively with possessing intoxicating liquor for sale, and the transportation of such liquor. He was brought to trial upon the indictment charging him with possession. After the jury were selected, the indictment read, and appellant's plea entered, it was discovered that the indictment was fatally defective in that it failed to allege the county in which the offense was committed. Smith v. State, 49 S.W. Rep. 373; Branch's Annotated P. C., p. 235, and authorities cited. Thereupon a judgment of dismissal was entered in said cause. Thereafter new indictments were returned, and upon appellant being brought to trial for the offense of transporting intoxicating liquor under one of the new indictments, he filed a plea of jeopardy, having for its foundation the facts above stated. Such plea would not be good if it rested on the fact of the dismissal of the case because the indictment was basically defective. Carroll v. State,50 Tex. Crim. 487; Abbot v. State, 94 Tex.Crim. Rep.. We do not think the trial judge erred in declining to submit to the jury said plea of jeopardy, and in holding it to present no defense.

Appellant's bill of exception No. 2 sets out the refusal of a continuance. Diligence is not shown. The bill of exception presenting the complaint refers to attached process, "exhibits A to I," but there are no exhibits attached. No affidavits of the absent witnesses are made part of the motion for new trial, which is also devoid of any exhibits. The qualification of the trial judge to the bill indicates plainly that he did not believe the absent witnesses would have given the testimony set up. The truth and merits of the grounds of any application for continuance are addressed to the sound discretion of the trial judge. Subdiv. 6, Art. 543, C. C. P. 1925.

We think the facts show that the officers who searched appellant's car and found therein five gallons of whisky, had facts and information sufficient to authorize such search upon probable cause, even though they had no search warrant. Said officers testified that they had reliable information that appellant was going out on the Nacogdoches road after some whisky; they saw him going and followed him out to a certain point where they secreted themselves; appellant came back along the said road, and the officers permitted him to pass and then overtook him; as they passed they observed the bulk of something which looked like a keg between the seats. They tried to get appellant to stop and he slowed down, but made a dash to get around the officers' car, which resulted in his car locking wheels with the officers' car and his continuing to pull down the road and get away. We think these facts furnish ample ground for a reasonable belief on the part of the officers that he had intoxicating liquor in said car.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

HAWKINS, J., absent.

ON MOTION FOR REHEARING.