
    CRADDOCK v. STATE.
    (No. 10272.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1926.
    Rehearing Denied Jan. 19, 1927.)
    (.Criminal law <@=>l 169(6) — Admitting testimony that defendant was drunk, when arrested for transporting liquor, held harmless, where minimum penalty was assessed.
    In view of imposition of lowest penalty, admitting evidence that defendant was drunk when arrested for transporting intoxicating liquor held harmless error.
    Qn Motion for Rehearing.
    2. Criminal law <§=>939(3) — Denying new trial for newly discovered witness held not error, where testimony of defendant’s witness had disclosed witness.
    Where defendant’s own witness disclosed that another witness was present at discovery of whisky which defendant was charged with transporting, denying new trial on ground of such witness being newly discovered witness held not error.
    Commissioners’ Decision.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Neal Craddock was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    I. N. Williams, of Mt. Pleasant, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeek, fof the State.
   BERRY, J.

The offense charged is transporting intoxicating liquor, and the penalty assessed is one year in the penitentiary.

There are two bills of exception in the record. The first one complains of the court’s action in permitting the state to prove that the appellant was drunk at the time he was arrested.

This testimony should not have befen admitted, hut, in view of the fact that the appellant is given the lowest penalty, under a statement of facts, that fully justified the conviction, we think it is not of sufficient importance to require reversal of the case.

Bill of exception No. 2 complains of the action of the court in overruling the motion for new trial, which was based on the ground of newly discovered evidence. The showing contained in the record with reference to newly discovered evidence fails to disclose that any diligence was used to procure the testimony and none of the requisites of the statute are complied with in presenting this motion to the trial court.

With the record in this condition, no error is shown in this bill.

Finding no error in the record, the judgment is in all things affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant insists that we were in error in our former opinion in stating that no diligence was shown to discover the testimony of one Oaudle, the alleged newly discovered witness. Appellant’s insistence caused us to make a further examination of the record, which has only confirmed us in the views already expressed. O. M. Fuquay was a witness for the state. Jim Williams was a witness for appellant. The testimony developed that the discovery of the whisky which appellant was charged with transporting resulted from a collision between appellant’s car and that of one Grissom. -Both Fuquay and Williams testified to being present and what they observed at the scene of the collision immediately after it occurred. Appellant’s own witness Williams testified that he, Fuquay, and Oaudle were standing there talking at ther time. By one of appellant’s own witnesses the presence of Oaudle was made known during the trial, yet there seems to have been no effort to get Caudle as a witness before the trial closed. The most ordinary diligence in the form of an inquiry from either Fuquay or Williams before the trial would have discovered what other parties were present and in a position to throw light upon the transaction, and this inquiry would doubtless have resulted in the discovery of the witness Caudle.

Appellant’s motion for rehearing is overruled. 
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