
    RIDDLE v. STATE.
    (No. 10967.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    Rehearing Denied Oct. 19, 1927.
    1. Criminal law <&wkey;IQ92(l3) — Bills of exception, not signed by trial judge, will not be considered.
    Appellate court is unauthorized to consider bills of exception not signed by trial judge.
    2. Highways <&wkey;186 — Testimony that witness smelled whisky, but could not tell who it was on, held admissible, as tending to prove driving automobile while intoxicated. .
    In prosecution for driving automobile while intoxicated, testimony that, when witness walked up to defendant’s car, he smelled whis-ky, but could not tell who it was-on, was admissible, as circumstance tending to prove allegations in indictment.
    3. Criminal law <&wkey;457 — Nonexpert testimony that accused driving automobile resembled drunken man held admissible.
    In prosecution for driving automobile while intoxicated, testimony that defendant “kinda resembled a drunk man,” was admissible, as tending to prove state’s contention, and as being only way in which nonexpert witness can testify as to whether or not person is intoxicated.
    4. Highways <&wkey; 186 — Refusal of special charge directing verdict of not guilty, in prosecution for driving automobile while intoxicate.d, held proper.
    In prosecution for driving automobile while intoxicated, refusal to give defendant’s special charge instructing jury to return verdict of not guilty Iheld, proper, under evidence.
    5. Criminal law i&wkey;8l4( 17) — Refusal of charge on circumstantial evidence held proper, where not warranted by facts.
    Refusal of charge involving law of circumstantial evidence was proper, where not war-' ranted by facts in case.
    6. Criminal law <&wkey;722(3), (037(1) — County attorney’s argument held authorized by evidence, and portion, if unauthorized, cannot be considered, because not pointed out in objections.
    Argument of county attorney that defendant, prosecuted for driving while intoxicated, cannot be stopped from driving his automobile and endangering lives of, wives and children of jurors, while full of “rot-gut corn whisky,” was authorized by the evidence, and portion as to wives and children of jurors, if harmful and unauthorized, cannot be considered, where defendant’s objections went to all of argument, without pointing .out separately improper portion thereof.
    On Motion for Rehearing.
    7. Criminal law c&wkey;l092(4) — Bill of exceptions . will be considered, when verified by trial judge and timely filed (Code Cr. Proc. 1925, art. 760).
    Under Code Or. Proc. 1925, art. 760, statement of facts or bill of exceptions, when verified by trial judge and filed within time prescribed by law, will be considered.
    8. Criminal law <S=»1092(11) — Conviction may be reversed, where ■ exceptions were taken, and accused, without fault, was deprived of bills of exceptions.
    A judgment of conviction may be reversed, where it appears that meritorious exceptions were taken, and that, without fault of defendant or his counsel, he was deprived of bills of exceptions.
    9. Criminal law <&wkey;l 186(7) — 'To warrant reversal because accused was deprived of meritorious bills of exceptions, motion must be verified, and show diligence.
    To warrant reversal of conviction because defendant was deprived of meritorious bills of exceptions, motion to reverse must be verified by affidavit, and be- sufficient to show diligence of defendant.
    Commissioners’ Decision.
    Appeal from District Court, Titus County; R. T. .Wilkinson, Judge.
    
      Joe Riddle was convicted of unlawfully driving an automobile while intoxicated and he appeals.
    Affirmed.
    Sturgeon & Sturgeon, of Paris, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of unlawfully driving an automobile while intoxicated, and his punishment assessed at a fine of $25.

The record discloses that the appellant, on the date alleged in the indictment, drove his automobile, in company with four other persons, upon one of the public streets within the incorporated limits of Mt. Pleasant' to Andrews’ Candy Kitchen, where he stopped his car and called for some cigars. When the state’s witness Pierce Owens handed the cigars to appellant, appellant told the witness to tell Andrews that he would pay for them when he got “damned ready,” and drove off in his automobile, running into and injuring the car belonging to the witness Owens’ father, but failing to stop.

The appellant failed to testify, but defended upon the ground that he was not intoxicated at the time in question.

The record contains 7 bills of exception.

Bills 1 and 7 are in the record without the signature of the trial judge, and for that reason we are unauthorized to consider them.

Bill 2 complains of the action of the court in permitting the state’s witness Pierce Owens to testify that, when he walked up to appellant’s car, he “smelled whisky, but couldn’t tell who it was on.” This testimony was admissible as a circumstance tending to prove the allegations in the indictment.

Bill S complains of the action of the court in permitting the state’s witness Pierce Owens to testify that the appellant “kinda resembled a drunk man.” We think .this testimony was admissible as tending to prove the state’s contention, and that the only way in which a witness could testify as to whether or not a person was intoxicated would be to give his opinion, based upon the acts and conduct of such person. To prove drunkenness by a nonexpert witness would necessarily involve, in most, if not in all, instances, the conclusion and opinion of the witness. In Underhill’s Criminal Evidence, § 278, it is stated:

“A nonexpert may testify that the accused or some other person was intoxicated on a given date, and that he was habitually intemperate.”

There was no error in the admission of this testimony.

Bill No. 4 complains of the refusal of the court to give appellant’s special charge, instructing the jury toi return a verdict of, not guilty. There is no error shown in this bill.

Bill 5 complains of the refusal of the court to give appellant’s special charge involving the law of circumstantial evidence. There was no error in refusing this charge. Under the facts as presented by this record, a charge on circumstantial evidence would have been improper.

Bill 6 complains of the argument of the county attorney to the effect that neither the officers, the district attorney, nor the district judge could .stop the appellant from driving his automobile up and down the streets of Mt. Pleasant, endangering the lives of the wives and children of the jurors, while full of “rot-gut corn whisky.” We are unable to reach the conclusion that this argument was not authorized by the evidence in the case. It is apparent that part of the statement complained of, at least, was authorized by the evidence, and that part of the 'statement referring to the wives and children of the jurors, if harmful and unauthorized, cannot be considered, because of the fact that the appellant’s objection went to all of the argument, without pointing out separately the improper portion thereof. We are therefore of the opinion that this bill, as presented, shows no reversible error.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

In an unverified motion, appellant seeks to have this court consider his bills of exceptions which, as stated in the original opinion, we found in the record without any indorsement showing verification by the trial judge. Appellant attaches to his motion a letter written and signed on.a typewriter, dated April 25, 1927, which is addressed to Judge “Wilkins,” Mt. Vernon, Tex., stating that in the case of State v. Joe Riddle, the statement of facts and bills of exceptions were- inclosed, requesting the judge to approve them and deliver them to the district attorney, so that they may be signed and become a part of the record. The law authorizes the consideration of a statement of facts or bill of exceptions when verified by the trial judge and filed within the time prescribed by law. See’article 760, C. C. P. 1925. The reversal of a judgment is permitted where it is made to appear that meritorious exceptions were taken and that without fault or lack or diligence upon the part of the accused or his counsel lie was deprived of tlie bills of exceptions. See Vernon’s Tex. C. C. P. 1925, art. 760, notes 2 to 5, inclusive. To warrant' such action, tbe motion to reverse must be verified by affidavit (Wooten v. State, 57 Tex. Cr. R. 89, 121 S. W. 703), and must' be sufficient in its statement to show tbe diligence of tbe accused. Tbe leading case on tbe subjtct is George v. State, 25 Tex. App. 229, 8 S. W. 25, wbicb bas been repeatedly followed. Tbe motion in tbe present ease fails, in tbe judgment of tbis court, to comply with tbe rule stated.

Tbe motion for rebearing is overruled. 
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