
    Joe Spencer v. The State.
    No. 8901.
    Delivered April 22, 1925.
    1. —Transporting Intoxicating Liquor — Search Warrant — Unnecessary.
    Where appellant was discovered by officers, at one o’clock at night driving along the road in a two-horse wagon, in which was found a five-gallon keg of whisky, no search warrant was necessary to authorize the search and seizure. This is not an open question in this state. Following Welchek v. State, 93 Tex. Grim. Rep. 231, 247 S. W. 524 and other cases cited.
    2. - — Same—Special Charges — Practice.
    Where special charges, requested by the defendant are refused, exception must be reserved and. so noted on the charge or a formal bill of exceptions must be preserved. It is indispensible that an exception in one form or the other appear from the record. Following Linder v. State, 250 S. W. 703 and authorities therein cited.
    Appeal from the District Court of Sabine County. Tried below before the Hon. V. H. Stark, Judge.
    Appeal from a conviction for transporting intoxicating liquor; penalty, two years in the penitentiary.
    The opinion states the case.
    No brief filed by appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   HAWKINS, Judge.

Conviction is for transporting intoxicating liquor. Punishment, two years in the penitentiary.

Between twelve and one o’clock at night officers discovered defendant driving along the road in a two-horse wagon. In it they found a five gallon keg of whiskey.

Complaint is made because the officers were permitted to testify about finding the whiskey, it being shown they had no search warrant. This is not an open question in this state. Welchek v. State, 93 Texas Crim. Rep. 271, 247 S. W. 524; Harris v. State, 93 Texas Crim. Rep. 349; 248 S. W. 54; Bell v. State, 250 S. W. 177; Forrester v. State, 250 S. W. 1027; Burks v. State, 260 S. W. 181.

A special charge requested by defendant was refused. There is no notation on the charge showing that exception was reserved to its refusal, neither is there a formal bill of exception preserving the point. It is indispensable that an exception in one form or the other appear from the record. (Linder v. State, 250 S. W. 703, and authorized therein cited.)

The judgment is affirmed.

Affirmed.  