
    DYER v. STATE.
    (No. 9843.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1926.)
    1. Criminal law <&wkey;784(3) — Defendant, admitting whisky found in automobile in which he - was riding to be his, is not entitled to charge on circumstantial evidence.
    Requested special charge, in prosecution for transporting whisky, that case was one of circumstantial evidence, held properly refused, where defendant admitted that whisky found in automobile in which he was riding was his.
    2. Criminal law <&wkey;784(3) — Claim that admissions of guilt were made through fear does not warrant giving oharge on circumstantial evidence. '
    Claim by defendant, prosecuted for transporting liquor, that he admitted whisky found in automobile was his because he was afraid, does not alter rule that admissions or confessions of guilt by accused obviates necessity for charge on circumstantial evidence.
    3. Intoxicating liquors <@=^138 — Charge to ac-r quit of transporting, if automobile in which'liquor was found was not cwned by or under control of defendant, held properly refused.
    In prosecution for transportation of liquor, charge to acquit, if defendant did not own automobile in which liquor was found, and had no control over it, held properly refused.
    4. Criminal law &wkey;>8l5(!2) — Involved charge . on defendant’s lack of knowledge of liquor in automobile, and ignoring question of principal offenders, held properly refused.
    Charge, in prosecution for transporting liquor, incumbering proposition of defendant’s lack of knowledge of presence of whisky in automobile with other propositions relative to ownership and control of automobile and liquor, and ignoring question of principal offenders, held properly refused."
    5. Criminal law <&wkey;l092(6), 1099(5) — Denial of motion to dismiss indictment is not reviewable, where bill of exceptions and statement of facts supporting claimed error were not filed within term time.
    Denial of motion to dismiss indictment contained in bill of exception cannot be reviewed on appeal,, where bill of exceptions complaining thereof and statement of facts supporting claimed error were not filed within term time.
    6. Criminal law <&wkey;364(4) — Admission by defendant of ownership of whisky held admissible, as res gestae.
    In prosecution for transportation of liquor, admission by defendant to officer at time of search that whisky found in automobile was his was admissible, as part of res gestae.
    7. Criminal law <&wkey;l09! (4) — Bill of exceptions, complaining of testimony of search of automo-. bile without warrant, containing no averment that incriminating evidence was found, held without merit.
    Bill of exceptions, complaining that officer was permitted to testify that he searched car in which defendant was riding without search warrant, but failing to state that officer obtained any incriminating evidence, is without merit.
    8. Criminal law &wkey;>1092(l4) — Bill of exceptions, complaining that witness laughed when questioned, containing no certificate of trial court, presented no error.
    Bill of exceptions, complaining that wtiness laughed when questioned, which prejudiced jury against defendant, presents no error, where there was no certificate of trial court certifying that laugh occurred, or that it had effect claimed.
    9. Criminal law <5&wkey;l086( 14)- — Bill of exceptions, not showing that exceptions to court’s charge were presented before charge was read to jury, presented nothing for review.
    Bill of exceptions, failing to show that exceptions to court’s charge were presentéd before charge was read to jury, and at time when it might have been corrected, presents nothing for review.
    10. Criminal law <3=5633(1) — Bringing liquor seized in courtroom held not erroneous, in prosecution for its transportation.
    In prosecution for transportation of liquor, it was not erroneous to bring liquor seized into courtroom, where no improper use was attempted.
    11. Intoxicating liquors <3=^235 — Giving of receipt to defendant for liquor taken from him is immaterial, in prosecution for transportation.
    Whether or not receipt vel non was given defendant, for liquor taken from him presents no defense, or materiál matter, in prosecution for transportation of liquor.
    12. Criminal law <&wkey;ll77 — Refusal to have stenographer make statement of facts because defendant was unable to pay for one held not ground for complaint.
    Where record contained statement of facts certified to by official stenographer and approved by court, court’s action in declining defendant’s motion to have stenographer make statement of facts because he was unable to pay for one held not ground for complaint.
    Appeal from District Court, Polk County; T. L. Manry, Judge.
    Willie Dyer was convicted of transporting intoxicating liquor, and lie appeals.
    Affirmed.
    
      Fairchild & Redditt, of Lufkin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Polk county for transporting intoxicating liquor; punishment, one year in the penitentiary.

Appellant, with one Pipkins and some other parties, was in a car on a public road, which car was bogged in the mud. The car belonged to Pipkins. A deputy sheriff and his son came by the place and after some conversation investigated the contents of the car. A number of quarts of whisky were found in a suitcase and a bottle of the same liquid in the pocket of a raincoat; both being in the car. While a witness for himself appellant admitted that the raincoat was his, but made no admission as to the suitcase. He also admitted that he told the sheriff and his son at the time of the finding of the whisky in the car that it was his whisky and not to prosecute the others. He also admitted that at said time he told the officer if he would let him go he would give him all the whisky, his watch, and $25 in money. He said that he made these statements because he was scared. The sheriff testified that after appellant had made bond he came to witness and wanted the car in question released to Pipkins, and that he told witness that the whisky in the ear was his. Catherine Grant swore that she was in the car at the time the officers found the whisky, and had traveled a considerable distance in same; that after appellant made bond he came to her home, and, in reply to a question asked him by witness’ mother as to how the matter came up, appellant said that he did not want any of the rest of them arrested; that all the “shinny” was his.

' The trial court told the Jury that unless they believed beyond a reasonable doubt that appellant, either alone or acting with' Pip-kins, transported the liquor in question, they should acquit.

Appellant’s special charge No. 1 sought to have the jury told that this was a case on circumstantial evidence. It was properly refused. It was in testimony by several witnesses that appellant admitted that the whisky in question was his. There-was no issue made of its transportation. The claim by the appellant that he made the inculpatory statements above referred to because he was afraid would not serve to alter the recognized rule that the proven admissions or confessions of guilt by the accused would obviate the necessity for a charge on circumstantial evidence.

Special charge No. 2 sought to have the jury told that, if they believed appellant did not own the ear, and had no control, management, etc., of same, he could not be convicted. This so manifestly presents an incorrect principle of law as to need no discussion.

Special charge No. 3 so incumbers the proposition of appellant’s lack of knowledge of the presence of the whisky in the car with other propositions relative to the ownership of the car, the control and management of same, ownership of the whisky in question, and in addition so ignores the question - of principal offenders, as to justify its refusal by the trial court.

Bill of exceptions No. 1 was taken to the. overruling of the motion for new trial. We gather from statements in said motion and in the state’s reply that some character of motion to dismiss the indictment had been made, based on some agreement. Appellant’s motion to dismiss is not before us. It is referred to as being attached to the motion for new trial and marked Exhibit A, but it is not so attached, nor does it appear elsewhere in the record. If however said motion did properly appear in the record, the refusal of same could not be reviewed by us because of the fact that the bill of exceptions complaining of the overruling of the motion for new trial was not filed during term time, nor was any statement of the facts heard by the trial court when said motion was presented, filed within term time. It is necessary that such bill of exceptions complaining of extraneous matters, and the statement of facts supporting the claim of error in such matters, be filed within term time. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116.

The statement of appellant to the officers at the time the whisky was found in the ear to the effect that “this is my whisky, and no one else knew it was in the car,” was part of the res gestae and admissible as such. Ard v. State, 101 Tex. Cr. R. 545, 276 S. W. 263; Foster v. State, 101 Tex. Cr. R. 628, 276 S. W. 928.

Bill of exceptions No. 2 complains that Mr. .Parrish was permitted to testify that he searched the car in which appellant and others were on the occasion in question, without having a search warrant. There is no averment in the bill that the officer found any liquor in the car, or otherwise obtained any criminating evidence. Without such averment the bill is without merit.

There is a bill of exceptions to the fact that a witness laughed when asked a question. It is stated in the bill that such laugh indicated to the jury that appellant was guilty and was trying to put one over the jury.' There is no certificate of the trial court certifying that such laugh was indulged in or that it could have had the effect mentioned. The bill presents no error.

Bill of exceptions No. 5 is so qualified as to remove any question as to the correctness of the court’s action in the matter complained of.

There is nothing in or on the paper denominated, “Exceptions to the court’s charge,” or in bill of exceptions No. 7 referring thereto, which informs us as to when such exceptions were presented to the trial court. To be considered here, we must be shown by some proper certificate that such exceptions were presented before the charge Of the court was read to the jury and at a time when, in response to such exceptions, he might have corrected same. There being nothing before us to show that the trial court was given an opportunity to' consider and pass on such exceptions before his charge was presented, nothing is before us for review. Grissom v. State, 87 Tex. Cr. R. 465, 222 S. W. 237.

Bills of exception Nos. 8 and 9 were taken to the refusal of the special charges above discussed.

It was not erroneous to bring the liquor in question into the courtroom. No improper use of same was attempted. The question of a receipt vel non given to the accused for the liquor taken from him, and whether one was given or given in proper form, presents no defense or material matter here.

There is in the record a statement of facts made and certified to by the official stenographer and duly approved by the court. This being true, we fail to observe any ground of complaint at the court’s action in declining to grant appellant’s motion to have the stenographer make a statement of facts because he was unable to pay for one.

The facts seem overwhelmingly to support the conclusion of guilt reached by the jury. Believing that no error appears in the record, the judgment will be affirmed. 
      
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