
    JOHNSON v. STATE.
    (No. 8548.)
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1925.
    Rehearing Denied April 1, 1925.)
    1. Criminal law «®=>I I44( 12) — Bill of exceptions complaining of exclusion of evidence, failing to show witness’ relation to matter or other testimony, held insufficient to overcome presumption in favor of court’s ruling.
    In prosecution for transportation of liquor,' where defendant claimed that he was acting as detective to entrap violators of Prohibition Law, bill .of exceptions complaining of exclusion of answer to question asked witness, “You had told him to get evidence of stills and selling of liquor, hadn’t you?’’ which showed that affirmative answer was expected, but did not show what testimony witness had given, and what his relation to the matter was, held insufficient to overcome presumption in favor of correctness of court’s ruling.
    2. Criminal law <@=^855(6) — That deputy sheriff slept in same room with jurors, and was with them for a while during daytime, held not reversible error.
    That deputy sheriff slept in same room with jurors, though in separate bed, and was in room with jurors awhile during daytime, held not to constitute reversible error, under Code Cr. Proc. 1911, art. 750, where case was not discussed in his presence.
    On Motion for Rehearing.
    3; Intoxicating liquors @=»236(20) — Evidence held to sustain conviction for transportation.
    Evidence- held to • sustain conviction for transporting intoxicating liquor.
    :4. Criminal law ©=» 1184 — Sentence for definite period will be reformed on appeal, to give defendant benefit of Indeterminate Sentence; Law.
    Sentence for definite period will be reformed on appeal, to give defendant benefit of Indeterminate Sentence Law. !
    Appeal from District Court, Johnson County; Irwin T. Ward, Judge.
    W. B. Johnson was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    J. O. Lockett, of Cleburne, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period-of three years.

The evidence that the appellant transported whisky is uncontroverted. He defended upon the ground that he was acting as a detective to. entrap violators of the prohibition laws, and that his action was in that capacity. His testimony to that effect was controverted. His defensive theory was submitted to the jury in what we conceive to be an appropriate manner. We have not been favored with a brief by the appellant. How-: ever, our examination of the requested charges leaves us of the opinion that, taking into account the charge given by the court, no error was committed in refusing the special charges. They related in the main to the defensive theory to which we have adverted, and the charge, as stated above, was sub-, mitted to the jury in a manner so as to leave no doubt in their minds that if, in fact, the appellant’s connection with the whisky was due to his arrangement with the peace officers to act in the capacity of a detective, or if upon that sbbject there was any reasonable-doubt in the minds.of the jury, an acquittal should follow.

In the record is found a bill of exceptions which is bare of surrounding facts or conditions under which the ruling complained of took place. It appears from the bill that while the witness Crawfor.d was on the stand, he was asked by the appellant’s counsel, this question: “You had told him to get evidence of stills and selling of liquor, hadn’t you?” The bill shows that an affirmatives answer was expected, and that objection was sustained to the question. As to what testimony the witness Crawford had given, and what was his relation to the matter, is not revealed by the bill. The absence of such a showing does not sufficiently overcome the, presumption which must be indulged in favor of the correctness of the court’s ruling. Moore v. State, 7 Tex. App. 14.

It was shown on the hearing of the motion for new trial that J. D. Crawford, a deputy sheriff, slept in the same room as the jurors though in a separate hed, which room was situated in the dormitory of the courthouse; that he was in the room with the jurors for a while in the daytime. A number of jurors testified that nothing was said by Crawford about the case, and that there was no discussion of it in his presence. Article 750, C. C. P., requires that an officer shall attend the jury and remain sufficiently near them at all times to attend any proper calling—

“but shall not be with them while they are discussing the case; nor shall such officer, at any time while the case is on trial before them, converse about the case with any of them, nor in the presence of any of them.”

It was held by the Supreme Court of this state, Judge Roberts writing the opinion, in the case of Slaughter v. State, 24 Tex. 412, that an infraction of the statutory rule inhibiting the presence of an officer in charge of the jury at a time when the case was under discussion might be harmless, and that proof of' that fact alone would not render it imperative that a new trial should be granted. The conduct of the jurors in permitting the officer to be present under inhibited circumstances might carry the imputation of misconduct which would warrant a new trial, when, due to the misconduct, the accused did not have a fair and impartial trial. Á similar ruling was made in Martin’s Case, 9 Tex. App. 293, Presiding Judge White writing the opinion. It has been held that, even though the officer in charge of the jury be a witness' in the case, the inference of injury does not necessarily follow. See Speer v. State, 57 Tex. Cr. R. 297, 123 S. W. 415; Holmes v. State, 70 Tex. Cr. R. 214, 156 S. W. 1172; Galan v. State, 68 Tex. Cr. R. 200, 150 S. W. 1171. Nothing in the present case shows any misconduct of the jury justifying this court in concluding that the discretion of the trial court was exceeded in refusing a new trial.

The judgment is affirmed.

On Motion for Rehearing.

■ UATTIMORE, ■ J.

In this motion and oral argument supporting same, appellant insists that the evidence is insufficient to support the judgment, basing his contention upon the proposition that the evidence showed appellant to have transported the intoxicating liquor, if at all, in pursuance of an agreement had by him with an officer to procure evidence to be ‘used in making cases against violators of the liquor law. We have carefully examined the testimony, and. regret that we cannot agree with appellant’s contention. The testimony reveals that it was shown without dispute that appellant went from Cleburne in his car with a man who had accosted him at a garage and wanted to go to some place where he could procure intoxicating liquor; that appellant and this stranger left Cleburne about 11 o’clock at night, and came back in two or three hours, having in the car a gallon of whisky. It is not disputed but that this whisky had been bought by the strange man. A witness had heard appellant tell this stranger before they left that he would have to pay $5 a gallon for the whisky. After the stranger got out of appellant’s car and went away with a half-gallon of the whisky, appellant wrapped up the remaining half-gallon and put it under the rear seat of the car, where it was later found by the officers who searched the car. The evidence indicates that gasoline for the trip was obtained by said stranger.'

Appellant took the stand as a witness,in his own behalf, but at no time testified that he bought the liquor, or that he knew or could identify any of the parties who were at the place west of Cleburne where- the liquor was purchased by said stranger. Appellant’s proposition that he was, going after the liquor or that he transported it for the purpose of getting evidence appears to have little foundation, in view of his entire testimony. He admitted on cross-examination that at the time of leaving Cleburne with said stranger he had no money with which to buy any whisky. He admitted that he did not buy any. He said that the reason the man who paid for the liquor did not take it all away with him when they got back was because said party stated that he wanted to leave the other in the car for a few minutes. Appellant undertook to state that he had some kind of an agreement with a Mr. Crawford, a deputy sheriff, to 'go down and get the whisky. He said Mr. Crawford agreed to pay him $5 a head for the men who were down there where he went after the whisky, but on the witness stand he admitted he could not tell what men or how many of them were there, and could not identify any of them as it was night when he was down there. He testified in one place that he brought the whisky back with him to Cleburne for evidence against the men from whom he got it, but in another place admitted that he did not get any, and that all that was gotten belonged to this stranger, .and that the stranger carried half of it away, and he expected him to come back ’and get the other presently. Appellant made no report of the matter until after he was arrested. Mr. Crawford was put upon the witness stand and denied positively having made any such arrangement or agreement with appellant as the latter testified to. As stated in the original opinion, the matter was submitted to the jury in a favorable light to appellant, and they have solved, the issue against him.

Appellant insists that the court erred in sustaining the state’s objection to a question propounded to witness Crawford on cross-examination, but the bill presenting this complaint is so destitute of any showing of the facts or circumstances or surroundings as to leave us in a condition that we cannot appraise the alleged error of the court in declining to admit the testimony.

Our attention has been called- to the fact that the sentence entered against appellant was for a definite period of three years. This is not in accordance with the terms of our ’Indeterminate Sentence Law. The sentence will now be reformed so as that the punishment of appellant shall be fixed at not less than one nor more than three years in the penitentiary, and, as so reformed, the judgment will be afBrmed, and the motion for rehearing overruled. 
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