
    WHITE v. STATE.
    (No. 10998.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    Rehearing Denied Nov. 2, 1927.
    1. Criminal law <&wkey;829 (3) — Refusing instruction to acquit of transporting liquor, unless . defendant aided or encouraged transportation, held not error, in view of another instruction.
    Refusing to instruct that, although jury believed that intoxicating liquor was transported in certain automobile, they could not convict defendant of transporting it, unless they believed that defendant aided by acts, or encouraged by words, the transporting of the liquor, held, not error, in view of other charges.
    2. Criminal law <&wkey;8!5(l2) — Refusing instruction to acquit of transporting liquor, unless defendant aided or encouraged transportation, held not error, since it ignored issue as to transportation by defendant.
    Refusing to instruct that, although jury believed that intoxicating liquor was transported in certain automobile, they could not convict defendant of transporting it, unless they believed that defendant aided by acts, or encouraged by words, the transporting of the liquor, held not error, since instruction ignored issue as to whether defendant transported the liquor.
    3. Criminal law &wkey;>829(I) — Refusing charge covered by given charge held not error.
    It Was not error to refuse to give a special charge, where issues involved therein were covered by another special charge, which was given.
    4. Criminal law <&wkey;72l (3) — Argument challenging defendant’s counsel to explain incriminating circumstances held not improper as referring to defendant’s failure to testify, where defendant failed to introduce two competent witnesses as to matters involved.
    District attorney’s argument that he challenged counsel for defendant to explain what defendant was doing crouched between front" and rear seats of automobile and why back seat thereof was turned up, and how broken bottle of whisky happened to be in road behind automobile, held not improper as indirect reference to defendant’s failure to testify, where there were two other persons in automobile with defendant, and these were competent witnesses, and not produced.
    5. Criminal law <&wkey;323 — That two persons with defendant in automobile were arrested along with him raised no presumption that they were indicted for same offense.
    Mere fact that man .and wife who were in name automobile as defendant at time of his arrest were arrested along with him held to raise no presumption that they were indicted for same offense of transporting intoxicating liquor.
    6. Criminal law <&wkey;l09l(2) — Bill of exception must of itself manifest error.
    Bill of exception, to be sufficient, must of itself manifest- the error complained of.
    7. Criminal law <&wkey;l 144('/2) — Ruling is presumed to have been correct, unless bill of exception shows contrary. "
    Ruling of trial court will be presumed by appellate court to have been correct, unless bill of exception affirmatively shows the contrary.
    Commissioners’ Decision.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    W. E. White was convicted of transporting intoxicating liquor, and he .appeals.
    Affirmed.
    P. R. Rowe and Cade Bethea, both of Livingston, and S. F. Hill, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, and the Assistant Attorney General, for the State.
   BAKER, J.

The appellant was convicted of unlawfully transporting intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the appellant was charged by indictment with the unlawful transportation of intoxicating liquors on or about the 23d day of May, 1926. It appears that the sheriff, Holliday, the county attorney, Foreman, and two deputy sheriffs, after obtaining a search warrant to search the car of one Guy Ketehel, went in an automobile about 9 p. m. on the date of the alleged offense, and overtook and passed on the public highway Ketehel and his wife and the' appellant as they were rapidly driving a Ford automobile, all three of them occupying the front seat. After passing the automobile in which appellant was riding, the sheriff and his associates stopped their car on a bridge, thus blocking the highway, and,flagged down the Ketehel car as it neared the bridge. When the officers approached the Ketehel ear, appellant was crouched between the two seats of the car, and the rear cushion was raised. The officers testified that at this time they could smell the odor of whisky, but they were unable to find any liquor upon searching the car. However, the two deputies went back up the road in the direction from which the Ketehel car had come, and discovered in the road a recently broken quart bottle that had contained whisky. The county attorney, upon obtaining a flash light and searching in the weeds near the Ketehel car, found a quart of whisky, and in close proximity thereto another quart was found. The sheriff and his deputies .thereupon arrested Ketchel, Ketchel’s wife, and the appellant, took them to town and placed them in jail. On the following morning the sheriff and one of his deputies returned to the scene of the arrest, and found nearby two more quarts of whisky.

It was the contention of the state that the whisky in question was being transported in Ketchel’s car, and that appellant, upon observing that the officers had blocked the road, climbed back into the rear part of the car, and threw the whisky away.

The appellant failed to testify, but defended upon the ground that the evidence was insufficient to authorize his conviction.

The court in his general charge properly charged the jury on the law of principals and circumstantial evidence, and, at the request of appellant, gave to the jury special charges Nos. 1 and 4. Special charge No. 1 was to the effect that, although the jury should believe from the evidence that the intoxicating liquor was transported in Guy Ketehel’s car, the mere presence of appellant in the car at the time was not sufficient to show his gpilty connection therewith, and, unless they found from the evidence to a moral certainty that appellant knew of the presence of said intoxicating liquor, and that same was being unlawfully transported, they should acquit him. Special charge No. 4 was to the effect that, in order to sustain a conviction, it should appear, not only that an offense had been committed, but there should also be proof establishing the fact that the appellant was the person who committed, or who was a participant in the commission of, said offense to a degree of certainty greater than mere probability or strong suspicion, and that there must be legal and competent evidence pertinently identifying appellant with the transaction constituting the offense charged against, him, and, unless they so found, they should acquit him.

The appellant complains of the refusal of the court to give in charge to the jury his special charges 2 and 3. Special charge No. 2 was to the effect that, although the jury believed from the evidence that the intoxicating liquor was transported in the Ketchel car, they could not convict the appellant, unless they further believed from the evidence that appellant aided by acts, or encouraged by words, the transporting of said liquor. We are of the opinion that there was no error in the refusal' of this charge, in view of the court’s general charge and special charges 1 and 4 given at the instance of appellant. Furthermore, special charge No. 2 ignores altogether the issue as to the transportation of the whisky by appellant.

The issues involved in special charge No. 3 are covered in appellant’s special charge No. 1 given by the court.

Bill of exception No. 1 complains of the refusal of the court to give to the jury appellant’s special charge No. 5 requesting that they not consider the opening argument of the district attorney to the effect that the state relied for a -conviction upon circumstantial evidence and the law of principals, and that,' when counsel for appellant got up to argue the ease before the jury, he challenged them to explain what appellant was doing crouched down between the front and rear seats of the automobile, and to explain why the back seat was turned up, and how the broken bottle of whisky happened to be in the road behind the car. It is the contention of the appellant that this argument was an indirect reference to the failure of the appellant to testify in his own behalf. We aré not in accord with this contention. In Wooten v. State, 50 Tex. Cr. R. 151, 94 S. W. 1060, and Walker v. State, 65 Tex. Cr. R. 615, 145 S. W. 904, this court held that argument similar to that in the instant case did not refer to the failure of the appellant to testify. It is a well-settled doctrine in this state that an argument of the prosecuting attorney relative to a failure to produce testimony, or to explain evidence in the case, cannot be construed as referring to the failure Of the appellant to testify where there are other parties who could give such testimony, or other sources from which such evidence could be obtained. Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 327. In the instant case the bill fails to show that either Ketchel or his wife was ever indicted for this offense, and tBére is nothing in the bill to preclude this court from inferring that they would have been competent witnesses for the appellant, and that the argument of the district attorney could have referred to the failure of the appellant to produce them as witnesses. The mere fact that Ketchel and his wife were arrested along with the appellant raises no presumption that they were indicted for the same offense, and, even if they were indicted, there is nothing to indicate that they had not been tried and acquitted at the time of appellant’s trial. In order for a bill of exception to be sufficient, it must, of itself, manifest the error complained of. It is also a well-settled doctrine in this state that the ruling of the trial court -is presumed to be correct, unless the contrary is affirmatively shown by the bill of exception. This bill, as presented, shows no error.

Finding no error in the record, the judgment of the trial court'is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellant, in his motion for rehearing, raises the same questions that were discussed in the opinion on the original hearing, in which we think the proper disposition of the case was made.

The motion is therefore overruled. 
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