
    HUMPHREYS v. STATE.
    (No. 9381.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.
    Rehearing Denied Jan. 20, 1926.)
    1. Criminal law <&wkey;763, 764(I) — Charge held properly refused as being on weight of evidence.
    Charge, in prosecution for transporting liquor, that it was duty of jury to look at defendant’s defense and facts occurring in connection with allegations and charges as viewed and seen from defendant’s standpoint and as it reasonably appeared to defendant, held properly refused as being upon weight of evidence.
    2. Criminal law <&wkey;829(3) — Requested charge in prosecution for transporting liquor held covered by charge given.
    Requested charge, in prosecution for transporting liquor, that if defendant did not know at time he was transporting whisky that it was in his car defendant would not be guilty, and that intent on part of defendant in criminal case was essence of such offense, held covered by charge given.
    3. Intoxicating liquors <&wkey;236(20) — Evidence held to sustain conviction for transporting liquor.
    Undisputed evidence held sufficient to sustain conviction for transporting liquor.
    On Motion for Rehearing.
    4. Criminal law <&wkey;>l09l(!0) — Objection of ruling of court on motion of continuance not considered when not presented in bill of exceptions.
    Objection to ruling of court on motion of continuance would not be considered when not presented in bill of exceptions.
    
      5. Criminal'law 144(i/2)—That transcript failed to reveal recognizance of defendant held not to affect his rights on appeal from conviction for transporting liquor.
    That transcript failed to reveal recognizance of defendant held not to affect defendant’s right on appeal from conviction for transporting liquor, since in absence of 'such recognizance and any showing to the contrary defendant is presumed in custody.
    6. Criminal law <&wkey;l 109(I)—Objection that transcript does not contain motion of continuance or recognizance of defendant cannot properly be raised on motion for rehearing on merits.
    Objection that transcript does not contain motion of- continuance or recognizance of defendant should be raised by application to have transcript corrected, and not on motion for rehearing on merits.
    Commissioners’ Decision.
    Appeal from District Court, Collingsworth County; R. L. Templeton, Judge.
    I. Humphreys was convicted for transporting liquor, and he appeals.
    Affirmed.
    R. H. Cocke, of Wellington, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the district court of Collingsworth county for the offense of transporting liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

Appellant complains at the court’s failure to give his special charge No. 1, to the effect that if the appellant did not know at the time he was transporting the whisky that the same was in his ear or was being transported by him, then to find the defendant not guilty; and he further requested that the jury he told that intent on the part of the defendant in a criminal case is the essence of such offense, and if they found and believed from the evidence that defendant did not intend to transport the whisky, or that if • same was transported without his knowledge, to acquit him.

By his second special charge appellant requested the court to instruct the jury that it was their duty to look at the defendant’s defense and the facts occurring in connection with the allegations and charges as viewed and seen from the defendant’s standpoint and as it reasonably appeared to the defendant. The second requested instruction was clearly upon the weight of the evidence and was correctly refused.

The first requested instruction was fully covered by paragraphs 4 and 5 of the court’s main charge. In paragraph 5 of the charge he pertinently told the jury that if the liquor in question was placed in the car by some one else than the defendant and the defendant transported the same, but that he did not know that the jars in question contained intoxicating liquor, or did not know that the said jars were in his ear at the time he transported the same, or if they had a reasonable doubt as to whether or not the defendant knew that there was intoxicating liquor in the car while he was driving the same, to acquit him. This charge protected every right that the appellant had under any theory of his defense presented by the evidence.

Appellant contends that the testimony in the case is insufficient to support the verdict. With this contention we cannot agree. It is undisputed that he was found traveling along the public road in an automobile containing four or five jars of whisky. The record further shows that when the deputy sheriff started to search the car by .virtue of a search warrant that he had, the appellant grabbed a jar and turned it up and poured the most of its contents out on the ground. It is true the appellant presented the theory that some other person put this liquor in his car without his knowledge or consent, but as is usual with a defense of this character, the jury refused to believe or accept it. In so doing, they were well within the right and privilege given them by the law, and we do not feel impressed with the duty of disturbing their verdict in this case.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

On Motion for Rehearing.

Appellant in his motion for rehearing makes the very unusual contention that we should grant his motion and reverse this case because, as he says, the transcript as filed in this court has omitted to include in it his recognizance, the judgment of the court pronouncing sentence, and the motion for a continuance.

The transcript is before us, and it contains the judgment of the court pronouncing sentence and appellant’s notice of appeal to this court. There are no bills of exceptions contained in the record, and if a motion of continuance was made and overruled it would not avail appellant without a bill of exception. Neither does the fact that the transcript fails to reveal a recognizance affect the appellant’s rights before this court in any manner, as in the absence of same and any showing ,to the contrary he is presumed to be in custody. The .contentions above stated might very properly be disposed of by saying that if the .appellant desired to have the transcript corrected, it was his duty to make a proper application before this court to have it done and to have supported it with a proper affidavit. A motion for rehearing on the merits is not the proper method of raising the questions above presented.

We have carefully considered appellant’s other complaints in the motion for rehearing and find that they are without merit.

The motion is accordingly overruled.

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. 
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