
    KING v. STATE.
    (No. 8316.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1924.
    Rehearing Denied March 18, 1925.)
    1. Jury <&wkey;72(!/2)— Procedure taken in summoning talesmen held unobjectionable.
    When the regular jurors were exhausted, the court ordered talesmen; and, when officer summoning such jurors made return, the names wgre placed in a hat and drawn. Helé, that this procedure was unobjectionable.
    2. Criminal law &wkey;>423(I) — Admission of testimony of statements made by accused’s companion at former time held not error.
    Statements by accused’s companion, made at a former time apparently in furtherance of and connected with the common design which actuated the two parties on the occasion of their arrest for transporting liquor, held admissible.
    3. Criminal law <&wkey;365(l) — In prosecution for transporting liquor, evidence showing carrying of pistol held admissible when part of res gestee.
    In prosecution for transportation of intoxicating liquor, reception of evidence, developed as part of res gestae of the transaction, that accused carried a pistol, held' not error, though showing another offense.
    4. Criminal law «&wkey;378 — Evidence showing accused’s war medal was not what he claimed, it to be held properly received.
    Evidence showing accused’s war medal, exhibited to jury as part of defense, was not what he claimed it to be, held properly received.
    On Motion for Rehearing.
    5. Criminal law &wkey;>814(!7) — Direct testimony held to preclude necessity for charge on circumstantial evidence.
    Direct testimony as to accused’s transportation of liquor held to preclude necessity for charge on circumstantial evidence.
    6. Witnesses <&wkey;>383 — Impeachment of accused’s companion as to statement of purpose to transport liquor held proper.
    As what accused’s companion said the night before they were,caught transporting liquor, as to his purpose to transport , liquor, was material, where he and accused were apparently acting together he could be impeached with regard to such statement.
    7. Witnesses <&wkey;383 — Impeachment ' as to identity of party in automobile from which accused and companion carried liquor held properly received.
    In prosecution for transporting liquor, based on fact that accused and his companion got out of car driven by another and carried the liquor until halted by officers, where defense was that they intended only to carry the whisky a short distance and leave it until the driver returned for it, impeachment of accused’s companion by contradictory statements as to who driver was held properly received.
    8. Courts <§=>66(7) — Refusal to extend term to permit procuring' of evidence to support unsworn supplemental motion for new trial held not error.
    Refusal to grant extension of term to enable defendant to procure evidence in support of unsworn supplemental motion for new trial held not error.
    Appeal from District Court, Bastrop County ; R. J. Alexander, Judge.
    Gordon King was convicted of transporting intoxicating liquors, and he appeals.
    Affirmed.
    R. A. Brooks, of Bastrop, and J. E. Hair, of San Antonio, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Bastrop county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Prom the testimony of the state witnesses it is unquestioned that appellant transported intoxicating liquor on the occasion in question. He and one Montgomery were together. They came down the road in a car and stopped. Here Montgomery took out of the car a box containing several fruit jars of whisky, and he and appellant came on some distance ,to where the officers commanded them to halt. The ear in the meantime had driven away. When ordered to halt, Montgomery threw down the whisky he had and ran, and appellant, also threw away a quart of whisky which he had and ran also. The officers pursued them and arrested them. It was" in proof that the night before Montgomery had sought to have a party go down into Lee county and haul some whisky, and upon the refusal of said party Montgomery said he was going to have it brought if he had to walk. Both appellant and Montgomery testified that they got in the car with one Arvid Browning several miles from the point where the officers saw the party in the car, and that soon after they got in the car with him they discovered there was in the car a box containing whisky. They further averred that when they reached the point where the officers said the car stopped, and that appellant and Montgomery got out, that in fact they did get out of the car at that point, but were only intending to carry the whisky, which was in the car and which they said belonged to Browning, from the car to some point not far distant where they were going to leave it until Browning returned for it.

The brief filed by appellant contains no citation of authorities in support of any proposition advanced, nor have we been able to agree with any of the contentions made. The attack on the indictment appears trivial. The regular jurors being exhausted, talesmen were ordered by the court. When return was made by the officer summoning such jurors, the names were placed in a hat and drawn. Appellant’s complaint of this procedure is wholly without merit. Appellant and Montgomery appeared to be acting together, and we see no error ii admitting the testimony of statements made By Montgomery at a former time apparently in furtherance of and connected with the common design which actuated the two parties on the occasion in question. The testimony that appellant had a pistol was developed as a part of the res gestee of the transaction, and the complaint that the state thus showed the offense of carrying a pistol presents no error. We see no error in the action of the trial court in permitting the state to show that the medal which had been exhibited to the jury as part of the defensive testimony, and which appellant asserts was awarded to him for bravery in action during the late war, was not what he claimed it to be. There are many bills of exception in the record wholly without merit, and while all of them have been examined by us, we do not. deem it necessary to discuss the various contentions made.

The judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant urges that for refusal to submit the case on the theory of circumstantial evidence, it should have been reversed. The officers gave direct testimony as to the fact of transportation of the liquor by appellant; hence there was no call for such charge.

Appellant and one Montgomery were together and apparently acting together in the transportation of the liquor. What Montgomery may have said the night before of his purpose to transport liquor would be material to the issue of transportation by him and appellant in this case. His impeachment in regard to such statement was therefore not open to the objection that it was allowing impeachment on an immaterial matter. So, also, ás to the matter as to who, was with Montgomery and appellant in the ear out of which the latter two got with th§ liquor shortly before their arrest. It was material to the issues in this case to show who said party was. Appellant and Montgomery testified on the trial that it was a man named Browning. Montgomei-y was impeached by showing that he had stated to various parties that the man who drove off in the ear just before they were arrested was a negro.

Complaint is made that the court refused to extend the term at the request of appellant, it being contended that this was to enable hirn to present some matters material to the proper presentation of his case. It appears that appellant was convicted on July 21st, and thereafter filed a motion for new trial. On the last day of the term — the 28th of July — he filed a supplemental motion setting up and relying upon certain fact issues. This supplemental motion was not sworn to. The request for an extension of the term was to enable appellant apparently to procure witnesses to testify relative to the things set up in this supplemental motion. If the matter thus involved was one which was not properly before the court, it would be manifest that the refusal would not be epror. Numerous authorities will be found on page 805 of Vernon’s Annotated C. C. P. 1916, sustaining the proposition that a motion for new trial such as is this supplement must be sworn to, otherwise it will not be considered.

This disposes of the points made in the motion, and being unable to agree with appellant, it will Be overruled. 
      ©msFor,other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     