
    JOHNSON v. STATE.
    (No. 10335.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.
    Appeal Reinstated Jan. 26, 1927.)
    On Dismissal.
    t. Criminal law &wkey;>l023(9) — Court of Criminal Appeals is without jurisdiction to consider “appeal” until after entry of sentence.
    The Court of Criminal Appeals is without jurisdiction to pass upon the questions raised by an appeal until the record shows the entry of a sentence; a sentence being a prerequisite to an “appeal.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appeal.]
    On Motion to Reinstate Appeal. ■
    2. Criminal law &wkey;>394 — Evidence as to finding whisky thrown from defendant’s car held not inadmissible under statutes prohibiting use of evidence obtained by illegal search (Code Cr. Proc. 1925, arts. 4a, 727a).
    Testimony as to finding liquor thrown from defendant’s car at the time of his arrest A eld not inadmissible under Code Cr. Proc. 1925, arts. 4a, 727a, prohibiting the reception of evidence obtained by a search without a proper search warrant.
    3. Criminal law t&wkey;>857(2) — Reference in jury room to burglary and theft convictions proved on trial of one prosecuted for transporting liquor held not misconduct.
    There being proof before the jury that defendant, prosecuted for transporting intoxicating liquor, had been convicted of burglary and theft, reference in the jury room to these former convictions did not amount to misconduct.
    4. Criminal law <&wkey;855(8) — Action of juror in speaking to stranger held harmless misconduct, when affirmatively shown to have been without reference to trial.
    The fact that one of the jurors in a prosecution for transporting liquor spoke to a stranger, but without reference to the case on trial, held not such misconduct as to require a reversal.
    5. Criminal law <&wkey;857(2) — Juror’s statement in jury room, after verdict agreed upon, in prosecution for transporting liquor, that he had lost a barrel customer, held harmless misconduct.
    The fact that one of the jurors in a prosecution for transporting liquor remarked in the jury room, after a verdict of guilty had been agreed upon, that he had lost a barrel customer, held not such misconduct as to require a reversal.
    Appeal from District Court, Gregg County; P. O. Beard, Judge.
    Louis Johnson was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Shoults & Buckley, of Longview, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Gregg county of transporting intoxicating liquor; punishment, two years in the penitentiary.

The record is before us without any sentence. The entry of a sentence is a prerequisite to an appeal. Hart v. State, 14 Tex. App. 323; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685; Wooldridge v. State, 61 Tex. Cr. R. 324, 135 S. W. 124. In the absence of a sentence this court is without jurisdiction to pass upon the questions raised on this appeal.

The appeal is dismissed.

On Motion to Reinstate Appeal.

The appeal in this case was dismissed at a former day because the record contained no sentence. This omission is now supplied, and the ease is considered on its merits.

. The facts show that officers stopped a ear in which were appellant and two other ne-groes, at about 11 o’clock in the night, out on a public road. The officers had a flash light, and placed a car across the road. Just before the car in which appellant was came to a stop, a jug and fruit jar of whisky were thrown from the car. Richard Page, one of the negroes in the car with appellant, testified that appellant hired him that night to go out in the country to the point where appellant procured the whisky which was thrown from the car. Ed Page testified that appellant told him that afternoon, in response to an inquiry by witness if appellant had anything to “stir him up,” that he was going after some that night and expected to be back by 8 o’clock if they had no bad luck. The testimony showed that the car in which appellant and the other negroes were had been delayed by tire trouble.

Appellant seeks to invoke the provisions of articles 4a and 727a, C. C. P. 1925, against the reception of the testimony of the officers Hayes and Gibson relative to the finding of the whisky thrown from the ear. The complaint is without merit. The whisky was not found in the car as the result of any search. That the officers had no search warrant, therefore, was immaterial. Brown v. State, 92 Tex. Cr. R. 147, 242 S. W. 218.

Appellant sets up misconduct of the jury in his motion for new trial-. There being proof before the jury that appellant had been convicted of burglary and theft, reference thereto in the jury room did not amount to misconduct. The fact that a person eating an apple sat down on the lawn near the jurors, and that one of them spoke to him, it being shown affirmatively that there was no reference in any way to the case on trial, presents no such misconduct as would call for a reversal. After the jury had agreed upon a verdict of guilty, one of the jurors remarked that he had lost a barrel customer. He said that some one had made arrangements with Mm to buy his empty pickle barrels and that appellant was to come for them at night. Some of the jurors heard this statement and a number testified that they did not hear it. We do not perceive the materiality or injurious effect of such statement. There was no testimony as to thd purpose for which the barrels were sold, nor was there any argument in the jury room relative to such statement or its effect or purpose. The juror who made the statement said that he realized that they had already voted to send appellant to the penitentiary when he made this statement. We are not impressed with the belief that this was misconduct of such gravity or hurt as to call for a reversal of the case.

Finding no error in the record, the judgment will be affirmed. 
      
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