
    JONES v. STATE.
    (No. 9639.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Denied March 3, 1926.)
    1. Criminal law <&wkey;l 158(3) — Trial court’s order overruling motion for new trial after hearing evidence not disturbed on appeal.
    Order of trial court overruling, after hearing evidence, motion for new trial on ground that jury derived information prejudicial to accused through statement made in courtroom, held final in Court of Criminal Appeals.
    2. Criminal law <&wkey;507(l).
    Witnesses who accompanied accused, knowing he was then transporting liquor, held not accomplices.
    3. Intoxicating liquors <&wkey;236(20).
    Evidence held sufficient to convict of transporting intoxicating liquor.
    On Motion for Rehearing.
    4. Criminal law &wkey;>l 172(7).
    Charge that certain state witness was accused’s accomplice in transporting liquor was favorable to accused, of which he could not complain, where such witness was not in law an accomplice.
    Appeal from District Court, Montague County; Viqcent Stine, Judge.
    . J. W. Jones was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    J. P. Cox, of Sherman, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat. Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   DATTIMORE, J.

This appeal is from a conviction in the district court of Montague county for transporting intoxicating liquor, with punishment fixed af 18 months in the penitentiary.

■ There are no hills of exception in the record to the reception or rejection of any testimony. There is a bill to the refusal of a new trial, and one to the overruling of appellant’s motion for an instructed verdict.

Appellant’s motion for a new trial set up the fact that through a statement made by some one in the courtroom, the jury- derived information that a witness by the name of Hester had been arrested for perjury. This was claimed as hurtful to defendant’s cause. The matter was contested by the state and several controverting affidavits filed. When it was presented to the court, he overruled the motion, certifying that he did so after hearing the evidence and the argument of counsel. It appearing that evidence was heard, this court would not be in position to say that the trial court was not justified in his action. It further appears that the witness Hester was a state witness, and it is not quite clear to us how the statement, if made, could have affected the rights of the accused.

Reverting to the other bill of exeeeptions complaining of the refusal of the court to instruct a verdict favorable to appellant, it seems to us that the court was entirely correct in his action. Henry Hester testified for the state that on the occasion in question he went with appellant and one Taylor to a point 10 or 12 miles east of Ringgold, and that they got a half gallon of whisky; thp.t Taylor and appellant went somewhere and got the whisky and brought it back to the ear; and that they all then drove back together to Bowie from the place where they got it. He said that the whisky belonged to the bunch; that he did not pay anything for the whisky, or have any interest in it. Two other witnesses testified for the state to seeing the party composed of Taylor, appellant, and Hester, and that appellant had a jug of whisky in his possession down near the railroad/crossing south of Ringgold; that he carried the jug or jar of whisky down to a car and gave a party a drink and brought it back and put it in the car from -which he had taken it.

As we view the law, neither of the three witnesses were accomplices. Our statute specifically' exempts persons who occupy the attitude, either of purchasers, joint possessors, or transporters of intoxicating liquor, from the taint of being accomplices. As far as we understand this record Hester’s only connection with the liquor was that of a transporter, and neither of the other witnesses had any criminal connection .with it at all.

Believing the evidence sufficient to justify the jury’s verdict, and being unable to agree with any contention made by appellant, the judgment will be affirmed.

On Motion for Rehearing.

Appellant insists that the court having told the jury in his charge that the witness Hester was an accomplice, we were in error in holding the evidence sufficient to support the conviction. The court did so tell the jury, and in our view this was favorable to appellant ; Hester not being in law an accomplice. However, if we should hold that he was, we would be compelled to conclude that he was fully corroborated by two other credible witnesses whose testimony showed appellant in possession of the .liquor while in transit.

We are not able to agree with appellant’s objection to paragraph 5 of the court’s charge, which appears to be but a statement of a general principle, and said paragraph must be viewed in connection with paragraph 6, wherein the court applied said principle to the facts, and told the jury in express terms that they could not convict unless from all the testimony they believed beyond a reasonable doubt appellant was guilty. This obviated any possibility of the jury reaching a conclusion of guilt while entertaining a reasonable doubt thereof.

Appellant’s motion for rehearing is overruled. 
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