
    BROOKS v. STATE.
    (No. 7344.)
    (Court of Criminal Appeals of Texas.
    Jan. 17, 1923.)
    1. Criminal law &wkey;>l056(l), 1090(14) — Refusal of special charge not reviewabie, where neither exception thereto nor bill of exceptions.
    Where there is no exception certified by the judge, on or as part of the special charge, to the refusal to give such special charge, and no bill of exceptions complains of such refusal, error therein is not reviewabie.
    2. Intoxicating liquors <&wkey;>236(20) — Evidence sufficient to convict for transportation.
    Where defendant charged with unlawful transportation of liquor contended that 9f the two jars destroyed by him, when surprised by the sheriff, one contained water, and the other containing whisky belonged to the automobile drivei’, held, that evidence was sufficient to support conviction.
    Appeal from District Court, Dickens County; J. H. Milam, Judge.
    D. G. Brooks was convicted for unlawful transportation of intoxicating liquor, and be appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for tbe State.
   HAWKINS, J.

Conviction is for tbe unlawful transportation of intoxicating liquor,-witb tbe punishment assessed at one year’s confinement in the penitentiary.

On the day of tbe alleged offense, there bad been a picnic or gathering of. some kind at McAdoo at which there was quite a crowd of people. Appellant was seen about the picnic grounds during the day, but had left with one W. G. Mayfield, and according to appellant’s testimony they had gone to Cros-bytown. For some reason not disclosed from the record, the sheriff and his deputies were out on the road some 4 or 5 miles from the town of McAdoo about 11 o’clock that night, and, seeing the lights of an approaching car, had switched the lights of their own car out. As the car in which appellant and Mayfield were traveling approached nearer to the sheriff’s car, he switched the lights on, and Mayfield, who was driving, was not able to stop his ear until he got up to within 8 or 10 feet of where the sheriff was standing. Appellant was seen to take two half-gallon fruit jars and hold them over the side of the car and strike them together, causing both to break. The sheriff immediately went to that side of the car and fo.und whisky running off the running board in a stream and some in the lids of the fruit jars and other portions of the broken glass, where it could still be contained. Appellant claims, that Mayfield purchased one of the jars of whis-ky from two men whom they found at a creek on the way from Crosbytown, returning to McAdoo, and it being strong he (appellant) filled upon another .quart bottle with water; that one of the bottles broken was this bottle of water. Mayfield, being present in court and under the rule, was neither called by the state or appellant.

We find in the record five special charges which the court declined to give. It appears over the trial judge’s signature that they were “refused”; but no exception is shown upon the charges themselves because of such refusal, and no bills of exception appear bringing the matter forward for review. The attorney for the state insists that, in. such state of the record, the refusal of the special charges cannot be considered. His contention must be sustained. Barrios v. State, 83 Tex. Cr. R. 548, 204 S. W. 326, and many authorities collated in the opinion; Nichols v. State (Tex. Cr. App.) 238 S. W. 232. On account of apparent confusion upon the question, we undertook, in the recent cases of Linder v. State (No. 6558) 249 S. W. -, and Craven v. State (No. 7450) 247 S. W. 515 (opinions in both eases of date November 29, 1922), to state the proper procedure.

We believe the evidence sufficient to support the conviction, and there being nothing iri the record subject to consideration which would call for a reversal of the case, the judgment is ordered affirmed. 
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