
    WILLIAMS v. STATE.
    (No. 8953.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1925.
    Rehearing Granted Feb. 25, 1925.)
    1. Intoxicating liquors &wkey;202i — 1 ndictment for transportation need not allege purpose of sale.
    Indictment for transportation of liquor need not allege that it was for purpose of sale.
    2. Criminal law <&wkey;964 — Motion for new trial not disposed of during term is overruled by operation of law, and order at subsequent term is without legal effect.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 2025, Code Cr. Proc.. 1911, art. 839, motion for new trial not disposed of during term is overruled by operation of law, and order overruling it at subsequent term is without legal effect.
    On Motion for Rehearing.
    3. Criminal law <&wkey;977(3) — Sentence may be pronounced at term subsequent to that at which conviction occurred.
    Under Code Cr. Proc. 1911, art. 859, court may properly pronounce sentence at term subsequent to that at which conviction occurred.
    4. Criminal law &wkey;jl023(9) — Judgment not final and appealable until sentence is passed though not passed until term succeeding that at which conviction occurred.
    - Where sentence was not passed until term succeeding that at which conviction occurred, judgment did not become final and appealable until sentence was passed.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Will Williams was convicted of .transporting intoxicating liquor, and he appeals.
    Affirmed.
    James E. Yeager, of Waco, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

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

There is no merit in the motion in arrest of judgment attacking the indictment, because it did not allege that the transportation of the liquor was for the purpose of sale. It is not required that the indictment contain such averment.

The conviction occurred on the 30th day of April. On the 2d day of May a motion for new trial was filed, in which it was averred that appellant was denied the right of counsel, and also complaining of the manner of selecting the jury. The motion was not verified by affidavit. It appears never to have been called to the judge’s attention, and no order was made thereon during the term of court which adjourned on May 3d. On May 22, at a subsequent term of court, appellant called the motion up and presented evidence thereon which is before us by statement of facts. In passing on the motion at that time the judge i-ecited in his order that he was of opinion that the court had no right to then pass upon the motion, but that same was overruled by operation of law when the former term of court adjourned, but, desiring to give appellant any right he might have in the matter, entered an order overruling the motion on said 22d day of Slay., It was then for the first time appellant gave notice of appeal to this court, which was nineteen days after adjournment of the term during which he was convicted.

The motion should have been disposed of before the adjournment of the term at which, it was filed, and when court adjourned without order upon it, it was overruled by operation of law. The order overruling it at a subsequent term is without legal effect. .Article 2025, Vernon’s Sayles’ Civ. Statutes, art. 839, C. P. P.; Wilcox v. State, 31 Tex. 586; White v. Day (Tex. Civ. App.) 230 S. W. 843, and authorities there collated.

We had examined the statement of facta before observing that the order overruling the motion was made at a subsequent term of the trial court. The grounds stated in the motion were not sustained by the evidence produced, and, if the court could legally have acted on it, there would have been no error.

No jurisdiction was conferred upon this court by the notice of appeal entered at a subsequent term when the motion for new trial could not be acted upon, hence the appeal is ordered dismissed.

On Motion For Rehearing.

Our attention is called to a matter we overlooked in ordering a dismissal of the appeal. ' The sentence was not passed upon appellant until a subsequent term of court to that at which conviction occurred. The court could properly pronounce sentence at such subsequent term (article 859, C. C. P.; Robinson v. State, 54 Tex. Cr. R. 559, 113 S. W. 763; Jones v. State, 43 Tex. Cr. R. 419, 66 S. W. 559), but until this was done the judgment did not become final, and no appeal could be maintained until the judgment did become final, hence we were in error in dismissing the appeal, and the same will be reinstated.

As stated in our former opinion we had examined the statement of facts bringing forward the evidencé heard on the motion for new trial. We have examined it again. The court was warranted in finding against appellant upon the issues pi’esented in the motion. No abuse of his discretion appears.

The judgment is affirmed. 
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