
    THOMAS v. STATE.
    (No. 11181.)
    Court of Criminal Appeals of Texas.
    Feb. 15, 1928.
    Rehearing Denied March 21, 1928.
    1. Criminal law <§=l 124(1) — Bill of exceptions merely complaining of overruling motion for new trial will not be considered.
    Bill of exceptions merely complaining of overruling of defendant’s motion for new trial is insufficient to present anything for review.
    2. Criminal law <®=l 124(1) — Bill of exceptions should present particular points as to which court in overruling motion for new trial is alleged to have erred.
    Motion for new trial in criminal case should set up all errors, if any, committed by trial court during entire proceedings from impaneling of grand jury to verdict of jury, and error involved in denying new trial should be manifested by bill of exceptions by presenting particular points.
    3. Automobiles <©=354 — Evidence that defendant had collision with automobile driven by another held admissible in prosecution for driving on highway while intoxicated.
    In prosecution for driving automobile on highway while intoxicated,'evidence that defendant had a collision on highway with an automobile driven by another person held admissible to prove defendant’s intoxication.
    4. Automobiles <©=>356 — Refusal of instructed verdict in prosecution for driving on highway while intoxicated held not error, under evidence.
    Where number of witnesses testified that defendant was 'under influence of intoxicating liquor and that he was driving automobile on public highway, refusal of instructed verdict in prosecution for driving while intoxicated was not error.
    5. Criminal law <©=l 184 — Error in sentence fixing defendant’s confinement in penitentiary will be reformed on appeal by inserting word “jail” to conform with verdict.
    Where sentence erroneously recited that defendant’s punishment had been fixed at confinement in “penitentiary,” verdict having fixed confinement in county jail, sentence will be reformed on appeal by striking out word “penitentiary” and inserting in lieu thereof the word “jail.”
    Appeal from District Court, Grayson County; P. E. Wilcox, Judge.
    Charley Thomas was convicted of driving an automobile while intoxicated, and he appeals.
    Reformed and affirmed.
    Jas. D. Buster, of Sherman, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for driving an automobile while intoxicated upon a public highway; punishment, 60 days in the county jail.

The facts seem ample to support the judgment of conviction and. need not be stated in detail. A number of witnesses testified that appellant was under the influence of intoxicating liquor, and that he was driving his automobile upon a public highway.

The first bill of exceptions complains of the overruling of appellant's motion for new trial. We have often éaid that sucli a bill is insufficient to bring before us anything with sufficient particularity to require us to consider it. The motion for a new trial in a criminal cáse is supposed to set up all the errors, if any, committed by the trial court during the entire proceedings from the impaneling of the grand jury to the verdict of the jury. If any of these matters are erroneous, the particular error should be manifested by a bill of exceptions presenting the point.

Bill of exceptions No. 2 complains of the refusal of a continuance sought because of the absence of Fred Muller. It is enough to say that the bill shows an entire lack of diligence. The truth of the facts stated as expected from the absent witness do not appear supported by any testimony in the case. No affidavit of the absent witness is appended to the motion for new trial.

There is a bill of exceptions to testimony showing that, at the time alleged as that of the offense, appellant had a collision on the highway with an automobile driven by another person. Manifestly proof of the fact that the accused, charged with this offense, had a collision on the highway while driving his automobile, might be part of the necessary proof of the state in its effort to show that the accused was intoxicated. His manner of handling his car might be most pertinent. There is nothing in the complaint.

The remaining bill of exceptions complains of the refusal of an instructed verdict. The matter is without merit.

Our attention is called to the fact that in the sentence it is recited that the punishment of appellant has been fixed by the verdict of the jury at confinement in the penitentiary. The use of the word “penitentiary” was an error. The verdict fixed appellant’s punishment at confinement in the county jail, and the remainder of the sentence was in accordance with the verdict. The sentence will be reformed by striking out the word penitentiary” and inserting in lieu thereof the word “jail.” .As reformed the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have again examined the record in the light of appellant’s motion for rehearing and find nothing leading us to believe our former disposition of the case was erroneous.

The motion is overruled. 
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