
    YARBOROUGH v. STATE.
    (No. 8938.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.
    Appeal Reinstated May 20, 1925.
    Rehearing Denied June 17, 1925.)
    h Criminal law &wkey;1 104(2) — Appeal dismissed, where caption does not show date of adjournment of trial court.
    Where caption does not state date of adjournment of trial court, appeal from judgment of conviction will be dismissed.
    On Motion To Reinstate Appeal.
    2. Criminal law &wkey;l 131 (7)— Appeal reinstated,, where proper official certifies that date of adjournment of trial term was omitted from caption because of lack of knowledge of parties preparing transcript.
    Where it is shown by certificate .of proper official that date of adjournment of trial term was omitted from .caption because of lack .of knowledge of parties preparing transcript, omission will be corrected, and appeal,* dismissed because thereof, reinstated.
    3. Criminal law <&wkey;>598(l) — Refusal of applications for continuance for absence of witnesses, one of whom was present, but not used by defendant, at trial, held not error. .
    Where one of two absent witnesses, indicted for complicity in offense charged against defendant, was present at trial and tendered to defendant as witness after dismissal of case against him, but defendant declined to use him, refusal of' application for continuance because of their absence and supplemental application because of absence of one not present at trial was not error.
    4. Criminal law <&wkey;l086(l4) — Denial of motion to first dispose of cases against witnesses indicted for complicity in offense charged held not error.
    Where one of two absent witnesses, indicted for complicity in offense charged 'against defendant, was present at trial and tendered to defendant as witness after dismissal of case against him, but defendant declined to use him, and record showed no motion for severance, denial of motion to first dispose of cases against such witnesses was not error.
    5. Judges <&wkey;l6(I) — Agreement to try case before special judge need not be in writing.
    Agreement between defendant’s attorney and state to try case before special judge, as authorized by Const, art. 5, § 11, where regular judge is disqualified, need not be reduced to writing.
    6. Intoxicating liquors <&wkey;226 — Question to occupant of automobile defendant was driving when arrested as to who made whisky transported therein held not error.
    In prosecution for transporting intoxicating liquor, question to occupant of automobile defendant was driving when arrested, ‘.‘Who made the whisky?” to which he replied that he did not know, that whisky was being made, some of it by himself, but that he could not tell whether it was whisky being transported at time, held not error.
    7. Criminal law &wkey;>713 — State’s attorney’s announcement of desire to dismiss case against party implicated with defendant held not hurtful to latter.
    State’s attorney’s statement, in jury’s presence, that he wished to dismiss case against party implicated with defendant, held not hurtful to latter.
    8. Criminal law <§=>7211/2 (2) — State’s attorney’s remark that defendant did not use witness, clamored for by- him, when turned over to him, held not error.
    Where defendant asked for continuance because of absence of witness indicted for complicity in same offense, but refused to use him as witness, when brought to court and tendered to defendant after dismissal of case against him, state’s attorney’s remark to jury that witness was clamored» for by defendant' and turned over to him, but not used by' him as witness, was not error. '
    9. Criminal law <&wkey;l 119(2) — Bills of exceptions, not setting out witness’ answers to questions objected to, held to present no error.
    Bills of exceptions, not setting out witness’ answers to questions objected to, held to present no error.
    10. Intoxicating liquors <&wkey;>226 — Testimony of occupant of automobile defendant was driving when arrested that he did not see box of whisky when taken out of car held not objectionable.
    In. prosecution for transporting intoxicating liquor, testimony of occupant of automobile defendant was driving when arrested, in answer to question as to who took box of whisky out of car, as testified to by him, that he did not see it when it was taken-out, held not objectionable. ^ •
    11. Criminal law <<&wkey;l 169(1 )-r-Testimony of occupant of automobile defendant was driving when arrested for transporting liquor that he was -working for defendant' held harmless.
    In prosecution for transporting intoxicating liquor, testimony of occupant of automobile defendant was driving when arrested, in answer to question as to purpose for which whisky was made on night of arrest, that he was working for defendant by month, held harmless to defendant.
    12. Criminal law &wkey;>l 169(5) — Testimony, objection to which was sustained and jury were instructed not to consider, held not ground for reversal.
    In prosecution for transporting intoxicating liquor, question to occupant of automobile defendant was driving when arrested as to whether he knew who had peddled for defendant before that time, to which he answered that he did not, held not ground for reversal, where objection was sustained and jury instructed not to consider it.
    13. Criminal law &wkey;>l 169(1) — 'Testinnony as to showing sheriff where witness and defendant had been making whisky held harmless.
    State’s witness testimony as to going with sheriff and showing him where witness and defendant had been making, whisky held harmless to defendant, in prosecution for transporting liquor.
    14. Criminal law &wkey;>fll9(4) — Error held not shown by bill of exceptions not giving setting or surrounding of alleged improper argument.
    Bills of exceptions giving no setting or surrounding of argument by state’s attorney that it would have been a shame to permit defendant, as old as he was, to turn state’s evidence against boy indicted for complicity in same offense, etc., held to present no error.
    On Motion for Rehearing.
    15. Criminal law &wkey;>ll33 — Contentions urged will not be restated, and matters decided adversely to movant be elaborated, in response to motion for rehearing.
    On motion for rehearing, not complaining that court overlooked any contentions in original opinion or misunderstood or misstated any part of record, nor citing any authorities, court will not merely restate contentions urged and elaborate matters already carefully considered and decided adversely to movant.
    Appeal from District Court, Houston County; Ben F. Dent, Judge.
    Cleve Yarborough, was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Aldrich & Crooks of Crockett, for appellant.
    Tom Garrard, State’s Atty., abd Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTTMORE, J.

Appellant was convicted in the district court of Houston county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

We find in the record a motion on the part of the state’s attorney to dismiss the appeal because of the fact that the caption does not state the date of the adjournment of the trial court. An examination of the record reveals the fact that the motion is well taken. The caption states that the court began on the 24th day of March, 1924, but does not state when same adjourned. The matter is discussed in Lowery v. State, 92 Tex. Cr. R. 311, 244 S. W. 147, which cites authorities supporting the proposition here advanced by the state.

The appeal is dismissed.

On Motion to Reinstate Appeal.

The appeal in this case was dismissed at a former time for failure of the caption to show the date of the adjournment of the trial term of the court below. By certificate of the proper' official, it is now shown that this omission in the caption was the result of the lack of knowledge of the parties preparing the transcript. The omission is now cor- • rected, the appeal reinstated, and the case will be decided on its merits.

There are 16 bills of exception. A continuance was asked because of the alleged absence of two witnesses. The application was contested and the fact established that the two absent witnesses were under indictment for the same offense, act, and transaction charged against appellant. The case was postponed, however, ,and, when again called for trial, the application was renewed for one of said alleged absent witnesses ; it being then stated that the other witness, for whom the first application was made, was present. It appears from the record, without dispute, that the absent witness was indicted for complicity in the same act and transaction herein charged, and also that the other witness,, for whom application was first made, who was shown to be present at this trial, was tendered to appellant after his case had been dismissed, and that appellant declined to use him as a witness. Under these facts we deem it no error to refuse the original and supplemental applications for continuance. What we have just said also applies to the matters set up in appellant’s bill of exceptions No. 2, wherein he moves the court to first dispose of the cases against said two other parties, alleging that they are material witnesses for him on this trial. We find in the record no motion for severance. In addition we make the same statement as is above set, forth, viz., that appellant declined to use the one of said coindictees whose case ,was dismissed and was tendered to him as a witness.

There appears a bill of exceptions setting forth some character of objection on the part of appellant to being tried before the learned special judge sitting in this case. The objection seems to be made by attorneys representing appellant on the date of the trial. It appears in various ways in the record that on a day prior to the day set apart for the trial of this case, because of the disqualification of the regular judge, that the attorney then representing appellant agreed with the state’s attorney upon the question of disqualification of the regular judge, and also that the special judge who acted in this case should by agreement sit as judge herein. It is provided in section 11 of article 5 of our Constitution that, where the regular judge is disqualified, the parties may agree upon a special judge. A similar matter is discussed in Early v. State, 9 Tex. App. 484. The point made by appellant in the bill of exceptions under discussion is that the agreement between appellant’s former attorney and the state to try this case before the learned special judge in question was not reduced to writing. We find nothing in the Constitution, statutes, or any decision up-bolding appellant’s contention in tbis re- ’ gard.

At the time of appellant’s arrest in a car which he was driving, and in which was found a quantity of whisky, a young man named Hoyle was an occupant of the car. Hoyle was used as a witness by the state. Appellant’s fourth bill of exceptions complains that, while this witness was testifying, he was asked, “Who made the whisky?” to which he said he could not tell; he could tell of whisky being' made, but whether it was this same whisky or not he could not tell. At this point of the testimony witness was interrupted by an objection and the bill sets out no further testimony on the point. We perceive no error in the matter.

There is a bill of exceptions complaining that in the presence of the jury the state’s attorney announced that he wifehed to dismiss the case against one Pajdon; he being the party implicated with appellant, who was present. The complaint of appellant goes no further than to say that to state, in the presence of the jury that the case against Payton will be dismissed was hurtful to him. We regret we cannot agree.

Appellant having asked for a continuance because of the absence of Payton, and Payton having been brought to court and the 'case against him dismissed, and he then tendered to appellant as a witness, upon appellant’s refusal to use him as a witness in his behalf, we see no error in the state’s attorney remarking to the jury that Lonnie Payton was clamored for by appellant as a witness, and that he was turned over to him, but had not been used as such witness.

Bill of exceptions. No. 7 complains of the asking of witness Hoyle what his business was at the church on a certain night. If any answer was made by the witness, it is not set out in the bill of exceptions, which presents no error. This same failure to set out the answer of witness to a question objected to appears in the eighth bill of exceptions, which also sets out an objection to, a statement by witness Hoyle with reference to a box of whisky, which was in appellant’s ear when they left appellant’s house. We perceive no error in this matter.

Hoyle testified that on the way, while he and appellant were driving the car in' which was a box of whisky, they had a flat and the box of whisky was taken out of the car and set by a bush. He was asked who took the box of whisky out of the car and replied that he did not'see it when it was taken out. We see no objection to this testimony. Another bill complains of the fact that Hoyle was asked by the state who made the whisky in question, and to his being permitted to reply that he did not know, that he made some whisky, but that he could not tell whether it was the same - whisky being transported in the car at the time of the arrest. Another complaint is directed at Hoyle being asked by the state as to the purpose for which the whisky was made on Friday night; this apparently being the night of the arrest. The answer of the witness was that he was under appellant’s employ, was working for him by the, month. If there be any harmful matter in this, we do not quite see it. Hoyle was asked if he knew who had peddled whisky for appellant “before that time” and answered that he did not. The objection to this was sustained and the jury instructed not to consider same. The objection to testimony of the witness Hoyle going with the sheriff> and showing him where he and appellant had been making whisky seems a matter of no possible harm to appellant.

There is also complaint of the statement by state’s attorney in his argument that it would have been a shame to have permitted appellant, as old a man as he is, to turn state’s evidence against "this boy and send him to the penitentiary and let the defendant come clear. We are hot given any setting or surrounding of the argument in this bill and for aught we know it may have been pertinent to the testimony and perfectly legitimate. We see no. error in same.

The fifteenth bill of exceptions was to the refusal of a new trial, the motion for which was controverted by the state. The only dispute of fact upon which the court heard evidence by affidavits seems to be the proposition of the agreement to try the case before the special judge mentioned. This is also the subject of the sixteenth bill. We perceive no error in the action of the trial, court in regard to same.

The judgment will be affirmed.

On Motion for Rehearing.

We discussed as carefully as we could and at some length, each complaint made by appellant, in our original opinion. Nothing appears in the motion for rehearing complaining that we overlooked any of the contentions in our .original opinion, nor is there any insistence that we misunderstood or misstated any part of the record. We aré not cited to- any authorities in the rather lengthy motion. Merely to restate the various contentions urged and to elaborate matters already carefully considered and decided adversely to appellant would seem to call for no extended discussion on our part.

The motion for rehearing will be overruled. 
      
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