
    ANDERSON v. STATE.
    (No. 9556.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.
    Rehearing Denied Nov. 11, 1925.)
    1. Intoxicating liquors <@=o236(20) — Conviction of transporting held supported by facts.
    Statement of facts, showing that defendant and companion were driving car in which there was large quantities of whisky, held, to support conviction of transporting intoxicating liquor.
    2. Criminal law <@=>l 137(3) — No merit in contention of error in submission of issue of principals in trial for transporting intoxicating liquor on defendants’ request.
    Where statement of facts showed that defendant and companion were driving ear containing whisky, and court gave defendant’s special charge that- jury must believe beyond reasonable doubt that he transported whisky or acted with such companion as principal in order to convict, court did.not err in submitting issue of principals.
    3. Criminal law <@=1184, 1208(9) — Sentence to two years’ confinement for transporting liquor held erroneous for not conforming to indeterminate sentence law, and reformed.
    Sentence to two years’ confinement on conviction of' transporting intoxicating liquor held erroneous, as not in conformity with indeterminate sentence law, and reformed so as to direct confinement for not less than one nor more than two years.
    On Motion for Rehearing.
    4. Criminal law <@=>1052, 1118 — Refusal of continuance not reviewablé, in absence of bill of exceptions or order overruling motion.
    In absence of exception to refusal of continuance or any order or judgment in record overruling motion therefor, defendant cannot contest correctness of such refusal on appeal.
    Appeal from District Court, Gregg County; P. O. Beard, Judge.
    Joe Anderson was convicted of transporting intoxicating liquor, and he appeals.
    Sentence reformed, and judgment affirmed.
    Howard Dailey, of Cross Plains, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Gregg county of transporting intoxicating liquor, and his punishment fixed at two years in the penitentiary.

The-statement of facts shows that appellant and a companion were driving a car in which there were 226 quarts of whisky. The facts support the judgment.

Appellant asked for a continuance. There is no bill of exceptions complaining of its refusal. Appellant excepted to the charge of the court for submitting the issue of principals. The exception is without merit.

Appellant asked a special charge presenting the theory that if the jury beliered beyond a reasonable doubt that he transported whisky, or was guilty of acting, together with one Tabor as a principal, that they must find and believe beyond a reasonable doubt that he so transported said whisky or acted with said Tabor as a principal, in Gregg county, Tex. This charge was given.

Our attention is called to the fact that in sentencing appellant his confinement was directed for a period of two years. This is not in conformity with our indeterminate sentence law.

The sentence will be reformed so as to direct the confinement of appellant in the penitentiary for a period of not less than one nor more, than two years, and, as reformed, the judgment, in all things, will be affirmed.

On Motion for Rehearing.

As stated in our original opinion, the action of the trial court in refusing the continuance was not ‘excepted to. The refusal of such continuance is made the basis for this motion. Further inspection of the record makes it doubtful as to whether said motion was ever brought to the attention of the court below. There is no order or judgment of the court overruling same. Appellant is in no position to contest the correctness of the refusal of said continuance.

The motion for rehearing will be overruled. 
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